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 Parliament.
The Work Health and Safety Amendment Bill 2013 (WHS Bill) is intended to:
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make it clear that proceedings for WHS offences can be brought and prosecuted by solicitors representing WorkCover inspectors
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clarify that the District Court has jurisdiction to hear WHS prosecutions
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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 expired.
The WHS Bill has been introduced in the wake of two major challenges to the District Court's jurisdiction to hear WHS matters.
The first (Inspector Brock v Empire Waste Pty Ltd [2013] 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 [2012] 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.
