Publications / Work Health and Safety

11 Nov 13
Introduction of retrospective work health and safety amendment legislation in NSW

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The introduction of retrospective work health and safety amendment legislation in NSW is intended to rectify procedural errors.

This Focus Alert covers both the Work Health and Safety Amendment Bill 2013 (NSW) and the Coal Mine Health and Safety Amendment (Validation) Act 2013 (NSW).

Work Health and Safety Amendment Bill 2013 (NSW)
The Work Health and Safety Amendment Bill 2013 (NSW) (WHS Amendment Bill) amends the Work Health and Safety Act 2011 (NSW) (WHS Act) to make further provision for proceedings for offences and for savings and transitional regulations.

The WHS Amendment Bill was introduced on 16 October 2013 to put beyond doubt that:

  • the District Court has jurisdiction to hear prosecutions under the former Occupational Health and Safety Act 2000 (NSW) (OHS Act), and
  • a legal practitioner acting on behalf of an inspector or the regulator in proceedings under the former OHS Act, or the WHS Act, may initiate proceedings on behalf of a prosecutor.

The recent case of Inspector Brock v Empire Waste Pty Limited [2013] NSWDC 38 (Empire Waste) challenged the jurisdiction of the District Court to hear prosecutions under the former OHS Act.

It was argued in Empire Waste that the District Court did not have jurisdiction to deal with proceedings brought under the OHS Act as the jurisdiction was only vested in the District Court by the Work Health and Safety Regulation 2011 (NSW) not the WHS Act, which is not technically permissible.

In order to put the matter beyond doubt, the WHS Amendment Bill makes it clear that the District Court and the Local Court have jurisdiction to hear matters under the OHS Act and WHS Act. 

The WHS Amendment Bill is currently before the Legislative Council for review, with opposition members proposing amendments that would see pending proceedings in the District Court transferred to the Industrial Court for hearing.  It is unlikely this amendment will be incorporated into the final version of the legislation.

The WHS Amendment Bill also addresses a further technical argument concerning the filing of prosecutions addressed in Walsh v Built (NSW) Proprietary Limited [2012] NSWDC 171786 (Built).

In Built the issue under review was that proceedings against Built (NSW) Proprietary Limited were initiated by a solicitor of WorkCover representing the prosecutor.  The court held that the signature of a prosecutor was required to satisfy the Criminal Procedure Act 1986 (NSW) and District Court Rules 1973 (NSW).  Due to this procedural error the court found the proceedings were not brought in accordance with the OHS Act and were void.

In response to Built, the WHS Amendment Bill makes it clear that a legal practitioner may sign an initiating process on behalf of a prosecutor and validates such actions that have occurred from 1 January 2012.  The WHS Amendment Bill will also allow prosecutions to be recommenced where they have been terminated because a legal practitioner initiated proceedings. 

The WHS Amendment Bill is still under review in the Legislative Council, it is unclear whether it will be passed by both houses of parliament before the end of this year.

Coal Mine Health and Safety Amendment (Validation) Act 2013 (NSW)
The Coal Mine Health and Safety Amendment (Validation) Act 2013 (NSW) (CMHSA (Validation) Act) was introduced on 30 October 2013 and assented on 31 October 2013.  The intention of this Act was to remove any uncertainty over the appointment and revocation of appointments of certain government officials under the Coal Mine Health and Safety Act 2002 (NSW) (CMHS Act). 

The uncertainty around government officials’ appointments under the CMHS Act stem from the 2006 appointment by the then Deputy Director-General of Mineral Resources, under delegation, of the chief inspector and a number of other inspectors and investigators under the CMHS Act. 

These appointments may not have been valid as there was some irregularity with the instrument of delegation.  The appointments are now being retrospectively validated by the CMHSA (Validation) Act.

To rectify the uncertainty from the 2006 appointments the Government published an instrument of appointment in the Government Gazette on 5 October 2012.  However, it appears that in addition to reappointing the 2006 government officials, the instrument inadvertently revoked all other previous appointments. 

The CMHSA (Validation) Act reverses the unintended effect of the 2012 instrument confirming the appointment of all the government officials under the Act.

The CMHSA (Validation) Act validates the previous appointment of the Chief Inspector, inspectors, mine safety officers and investigators under the CMHS Act and saves appointments of officers under that Act which were inadvertently revoked.  Significantly, it also means that any compliance and enforcement actions initiated by an appointed government official can continue without question.

The CMHSA (Validation) Act also validates things done or omitted by officers and inspectors in reliance of or as a consequence of their appointments being inadvertently revoked.  This includes the commencement or institution of criminal proceedings.

The WHS Amendment Bill and CMHSA (Validation) Act effectively correct the irregularities and deficiencies found in the WHS Act and CMHS Act preventing any technical legal arguments being used to strike out legal proceedings relating to workplace health and safety cases.

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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