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Statutory notices to provide information


Some regulatory authorities have broad investigative powers to demand information and/or records.  It is a favourite tactic where it overrides the common law right against self-incrimination.  The information and/or records is used to investigate and prosecute breaches of the law and can be used either as evidence or as a lead for further enquiries.  

A recent decision of the NSW Court of Appeal has explained the extent of the recipient’s obligation to respond to those kinds of “fishing expedition”.

D’Anastasi v Environment, Climate Change & Water  concerned a statutory notice issued by the NSW Environment Protection Authority under the Protection of the Environment Operations Act 1997.  The notice sought information and records about the use of pesticides so  the EPA could investigate reports about dead birds.

Mr D’Anastasi was not obliged to respond to the notice because it did not adequately identify an issue within the responsibilities and functions of the regulatory authority.  That issue must be described clearly and not too broadly.   The notice did not disclose the relationship between the issue and the information sought.   The assertion of a possible contravention of a particular statutory provision is insufficient.  

Recipients are not required to discover information from sources other than their own knowledge.   A notice may properly require a corporation to find out readily available information (like information contained in a computer or a filing system or within the general knowledge of its employees).  However, recipients are not required to make extensive enquiries of others or act as a detective.   For example, a notice cannot require enquiries of third parties over whom the recipient has no control or association.  In that case, it is proper for the recipient to respond that it does not have the requested information.

One Comment leave one →
  1. 10/01/2012 8:40 am

    I totally agree with the NSw Court of Appeal’s decision here. Thanks for sharing it John!

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