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 December 2012.
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 January 2012.
In addition, both houses of New South Wales Parliament passed the Work Health and Safety Amendment Bill 2013 (the Bill), which will:
- 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 conduct.
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.
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