The NSW government this week passed the Occupational Health
and Safety Amendment Bill 2011 (Amendment
Bill) and the Work Health and Safety Bill 2011
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
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
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