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.

Background

The challenge to the NSW District Court's jurisdiction to hear matters commenced under the now repealed Occupational Health and Safety Act 2000 (OHS Act), was first raised in February 2013 in the cases of Inspector Brock v Empire Waste Pty Ltd and Dean Baldwin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".

The appeal

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 decision.

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 invalid.

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 unprecedented development.

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