A Bill enabling WorkCover to revive work health and safety
prosecutions commenced by solicitors and to vest jurisdiction in
the District and Local Courts to hear Work Health and Safety (WHS)
matters has been introduced into the New South Wales
The Work Health and Safety Amendment Bill 2013 (WHS
Bill) is intended to:
make it clear that proceedings for WHS offences can be brought
and prosecuted by solicitors representing WorkCover inspectors
clarify that the District Court has jurisdiction to hear WHS
enable proceedings for offences committed under the former
Occupational Health and Safety Act 2000 (OHS Act) to be
recommenced if they are valid under the WHS Bill, even if the
limitation period for commencing those proceedings has
The WHS Bill has been introduced in the wake of two major
challenges to the District Court's jurisdiction to hear WHS
The first (Inspector Brock v Empire Waste Pty Ltd 
NSWDC 38) related to whether the new WHS laws had properly
invested the Court with jurisdiction to hear prosecutions brought
under the OHS Act and the second (Inspector Walsh v Built (NSW)
Pty Ltd  NSWDC 171786) related to whether proceedings
commenced by process signed by a WorkCover solicitor, as opposed to
the investigating inspector, were invalid.
Both of those matters are currently before the NSW appellate
Courts and the WHS Bill remains before Parliament for debate.
This is not the first time the NSW Government has intervened to
regularise prosecutions which have already commenced. In the high
profile Gretley trial, an invalid initiating process was
retrospectively corrected by legislation. There was no High Court
challenge in that matter so such a challenge is available in
response to the WHS Bill once it is enacted. If the defence
argument is correct, charges which were never valid may not be
resurrected by the WHS Bill. In short, the WHS Bill, once enacted,
may not fix the problem.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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for Women citation acknowledging our commitment to workplace
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