In our previous article "NSW Parliament introduces
important amendments to the WHS Act", we looked at the NSW
Government's new Work Health and Safety Amendment Bill
2013 (the Bill). This legislation was intended to resolve
jurisdictional issues that saw the indefinite adjournment of
approximately 160 health and safety prosecutions commenced by
WorkCover in the District Court. The Bill has since passed, however
these jurisdictional issues have not been put to rest.
The challenge to the NSW District Court's jurisdiction to
hear matters commenced under the now repealed Occupational
Health and Safety Act 2000 (OHS Act), was first raised in
February 2013 in the cases of Inspector Brock v Empire Waste
Pty Ltd and Dean Baldwin and Inspector McDonald v
Australian Native Landscapes Pty Ltd.
With the commencement of the Work Health and Safety Act 2011
(NSW) (WHS Act), the District Court was given jurisdiction to hear
prosecutions under the OHS Act. Previously, authority to deal with
prosecutions for offences under the OHS Act lay with the Industrial
Court of NSW.
Originally, the WHS Act included "savings and
transitional" clauses and regulations which gave the District
Court limited authority to hear "residual matters"
brought under the OHS Act. However, subsequent amendments to the
WHS Act and regulations omitted these clauses.
Counsel for Empire Waste and Australian Native Landscapes
disputed the District Court's jurisdiction to hear prosecutions
brought under the OHS Act. They argued the omission in the amended
versions of the WHS Act meant the District Court did not have the
necessary power to hear these matters. The District Court Judge did
not agree and found that the omission of a clause in the amended
legislation to confer power on the District Court was merely
"an executive oversight".
Both Empire Waste and Australian Native Landscapes appealed the
District Court's decision. The appeals were heard together in
the NSW Court of Appeal on 27 November 2013. The Court of Appeal
affirmed that the District Court was, in fact, vested with the
necessary jurisdiction to hear these matters.
The Work Health and Safety Amendment Act
Interestingly, the day before the NSW Court of Appeal handed
down its judgment, the NSW Parliament enacted the Work Health
and Safety Amendment Act 2013 (WHS Amendment Act), which
explicitly gave the District Court the power to hear proceedings
brought under the OHS Act. This was intended to rectify the
jurisdictional issue, irrespective of the NSW Court of Appeal's
What happened next?
Earlier this year, Empire Waste and Australian Native Landscapes
applied to the High Court for special leave to appeal the NSW Court
of Appeal's decision. One of the arguments put forward by
Empire Waste and Native Landscapes is that the WHS Amendment Act
seeks to retrospectively confer criminal jurisdiction on the
District Court, which is, arguably, unconstitutional and
The special leave applications are listed for hearing on 11
April 2014. In the event the application is successful, a final
determination of the appeal would not be anticipated before the
second half of the year.
What does this mean?
With approximately 160 cases commenced under the repealed OHS
Act, it is possible that these matters may be adjourned
indefinitely, awaiting a determination from the High Court.
If the High Court does not grant leave to appeal, or finds that
the District Court does have jurisdiction to hear these matters,
the only consequence will be that the affected cases will have had
a prolonged resolution.
However, if the High Court does grant leave and the appeal is
successful, the matters commenced under the OHS Act in the District
Court may be quashed and may not be able to be reinitiated, due to
the relevant limitation period. This would be an extraordinary and
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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