The NSW government this week passed the Occupational Health and Safety Amendment Bill 2011 (Amendment Bill) and the Work Health and Safety Bill 2011 (WHS Bill).
Late stage negotiations led by the Greens have seen the inclusion in the harmonised laws of the right for Union Secretaries to prosecute breaches of the legislation. This right will be unique to NSW and is a further step away from the aim of harmonised laws across the country.
In a blow to WorkCover, one of the circumstances where the Unions will have the right to bring a prosecution is in circumstances where the regulator has not followed the advice of the Director of Public Prosecution regarding a Category 1 or 2 offence.
The Greens have called upon other states to include a Union right to prosecute, bringing into question the long standing principle in the criminal law that the prosecutor's office must be independent and impartial.
A further last minute change to the WHS Bill was made to retain a limited role for the Industrial Relations Court. The proposed laws initially provided that all civil and criminal offences would be heard in the Local or District Courts. The amended WHS Bill will see the Industrial Court dealing with civil matters and some of the lower end criminal offences.
The departures from the model laws passed in NSW create further complexity for corporations operating in NSW and across state borders. As the other states move to enact their model legislation, it remains to be seen how far the individual state systems will diverge.
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