Michael Hammond and Kathryn Bion of Deacons Lawyers, Melbourne, have written an excellent article explaining the importance of legal professional privilege in OHS investigations:

Once the business has decided which incidents will be ‘critical incidents’, it should consider putting into place certain steps to assist in establishing privilege for any of its communications which are created for the dominant purpose of obtaining legal advice or in anticipation of litigation.  The key to establishing whether a communication (including an investigation report) was brought into existence for the dominant purpose of obtaining legal advice or in anticipation of litigation, is the intention of the person who created the document or commissioned its creation.

Therefore, careful consideration should be given to identifying the right person to commission or undertake the incident investigation.  Involving lawyers in the immediate aftermath of a critical incident will assist in establishing privilege for communications arising from the investigation.

Delta-V Experts always recommends that legal advice is sought prior to engagement to ensure that any potential claims to legal privilege are appropriately maintained.