The New South Wales Court of Appeal (Court of Appeal) and the
New South Wales Parliament have confirmed that the District Court
has jurisdiction to hear prosecutions brought under the previous
occupational health and safety legislation.
The Court of Appeal decision in Empire Waste Pty Ltd v
District Court of New South Wales  NSWCA 394 unanimously
upheld the District Court judgment in determining the District
Court had the necessary power to deal with health and safety
prosecutions brought under the Occupational Health and Safety
Act 2000 (OHS Act).
Empire Waste Pty Ltd (Empire Waste) appealed the decision on the
basis the regulation, which purported to confer jurisdiction the
District Court, was either invalid or ceased to have effect after
The Court of Appeal found that the enabling provisions of the
regulation established the framework necessary for the
administration of the legislation and for carrying out the
objective of the legislation. The decision deals with cases which
were being heard in the Industrial Relations Commission of New
South Wales but were not yet completed and then transferred to the
District Court on 7 June 2011. It does not affect cases filed under
the Work Health & Safety Act 2011 (WHS Act) from 1
In addition, both houses of New South Wales Parliament passed
the Work Health and Safety Amendment Bill 2013 (the Bill),
allow WorkCover to revive work health and safety prosecutions
commenced by solicitors (as opposed to inspectors)
retrospectively allow the District and Local Courts to hear
health and safety prosecutions which do not involve reckless
The Bill will also allow WorkCover to recommence proceedings
which were terminated due to issues about validity during the lead
time from the repeal of the former OHS Act and Regulation and the
commencement of the WHS Act and Regulation, even if the limitation
period for commencing those proceedings has expired.
Collectively, the Court of Appeal decision and the Bill
reinvigorate the work, health and safety jurisdiction in New South
Wales. However, the time for appeal to the High Court has not yet
expired for Empire Waste.
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.
K&L Gates has been awarded a 2012 EOWA Employer of Choice
for Women citation acknowledging our commitment to workplace
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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