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23 Jul 13
Queensland Court of Appeal decision throws doubt on safety prosecutions

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A recent Queensland Court of Appeal decision (NK Collins Industries Pty Ltd v The President of the Industrial Court of Queensland and Another [2013] QCA 179) has clarified the obligations placed on a prosecutor to fully particularise breaches alleged against a defendant to work health and safety prosecutions, confirming the principles established in the High Court’s Kirk decision1 can be applied to Queensland law. 

This decision is likely to cast doubt on some prosecutions commenced by Workplace Health and Safety Queensland (WHSQ) under the now repealed Workplace Health and Safety Act 1995 (Qld) (WHS Act), as well as prosecutions under other work health and safety legislation, and puts into focus the particularisation of alleged breaches under the new Work Health and Safety Act 2011 (Qld) (New Act).

NK Collins Industries Pty Ltd (NK Collins) was charged under the WHS Act after one of its employees was crushed by a tree during felling operations.  The Complaint was drafted in general terms, as is common in WHSQ complaints.  The Complaint identified the contravention by NK Collins as a failure ‘to ensure the workplace health and safety of each of it’s [sic] workers was not affected by the conduct of the said business or undertaking’ (which the Court of Appeal identified as merely repeating the words of section 28(1) WHS Act).  NK Collins had argued that the Complaint failed to particularise the act or omission that was alleged to have been done or not done.  NK Collins argued that it required these particulars in order to understand and answer the case against it.

This case has a significant history – the first instance decision was appealed; judicial review was sought on the appeal; the judicial review held that the decision be remitted for further consideration; judicial review was again sought on the further consideration; and this second judicial review was appealed to the Court of Appeal.  At each instance the issues for consideration included whether the Complainant was required to particularise the act or omission that was said to have resulted in the alleged breach.  In this regard, NK Collins relied on the seminal High Court Kirk decision, which concerned the requirements for particulars to be provided under the now repealed Occupational Health and Safety Act 1983 (NSW) (OHS Act).

On appeal to the Queensland Court of Appeal, the central question was whether the WHS Act required the particular act or omission to by identified as constituting the offence (as opposed to the broad statement in the Complaint), and consequently whether Kirk could be distinguished due to the differences between the OHS Act and the WHS Act.

The Second Respondent argued that the relevant offence was a breach of s 24(1) of the WHS Act, consisting of a failure to comply with the obligations in section 28.  The Second Respondent argued that to establish the breach it was not required to identify any acts or omissions by the employer.  It was enough that once a risk had been identified, there was a ‘prima facie contravention’ which NK Collins could defend under section 37 of the WHS Act.  There was no requirement to further particularise the matter.  The Second Respondent also relied on the differences between the OHS Act and WHS Act, noting that the OHS Act defence concerned what was ‘reasonably practicable’ and required particularisation, whereas the section 37 WHS Act defence was ‘simply a matter of complying with the relevant code or adopting some equivalent was of responding to the risk’.

The Queensland Court of Appeal stated that the Complaint merely repeated the wording of section 28(1) of the WHS Act and ‘could hardly be more general’ noting that ‘it gives no guidance at all as to what the contravention actually consists of’.  The Court said that a construction of section 24 of the WHS Act so that it doesn’t require the actual nature of the contravention to be identified could only produce absurdity.

Importantly, the Court said ‘...for a defence under section 37 [of the WHS Act] to have a rational relationship to ensuring workplace health and safety, it must be responsive to some identified aspect of what the employer has done or failed to do in the conduct of its business which has created the risk’.  The Court accepted that the same approach as in Kirk must be taken.  It was ‘...incumbent on the prosecution to identify the measure or measures which should have been taken to ensure workers’ safety from the risk... that in turn would clarify what the risk was... It would then fall to the applicant to make out its defence...’.

As a result of the Court’s decision, Orders made by the President of the Industrial Court of Queensland have been set aside and the matter sent back to be heard and determined by the President afresh.

This decision has significant repercussions for prosecutions under the (now repealed) WHS Act, other Queensland work health and safety legislation, and how prosecutions are brought under the New Act.  Most significantly, it has now been confirmed in Queensland that defendants to prosecutions under the WHS Act and similar health and safety legislative schemes are entitled to be fully appraised of the case against them, and a failure by WHSQ to do so may cause a complaint to be struck out. 

If you are concerned about a work health and safety prosecution or any aspect of employment law, please contact our team.

 

The 2013 McCullough Robertson Workplace Relations & Safety Conference will be held on Friday 9 August 2013 in Brisbane.  The keynote speaker will be the current Shadow Minister for Employment and Workplace Relations, Eric Abetz.  For further information and to register, click here.

1 Kirk v Industrial Court (NSW) (2010) 239 CLR 531

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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