Changes from the 1995 Workplace Health and Safety Act (“The Repealed Act”)
Duties
Under the Act, what is called the “primary duty of care” falls upon persons who conduct businesses or undertakings (PCBU) to their workers and other workers when at work in the business or undertaking, and a less onerous duty owed to others at the workplace (s.19).
There are also duties cast on others conducting specific types of undertakings, for example designing plant, substances, or structures for use in workplaces; they have more specific duties for activities which may impinge on a workplace (s.20 — 26). Finally there are duties which are cast on those who work within the business/undertaking, namely officers of the PCBU, workers in the business or undertaking or others at the workplace (s.27 — 29).
Officers of PCBUs
“Officer” is more broadly defined than “executive officer” under the repealed legislation.
Under the repealed legislation, the executive officer was required to ensure a corporation complied with the repealed Act, and under the Act an officer of a PCBU must exercise due diligence (which is defined) to ensure that the PCBU complies with its obligations. In both cases, a failure to exercise reasonable diligence/due diligence to ensure compliance makes the officer liable for the breach. The major differences are:
1. That the onus now lies on the prosecution to prove an absence of due diligence,
rather than on the defendant to prove reasonable diligence was exercised; and
2. That arguably, under the repealed Act, it was necessary to convict a corporation first, whereas the liability of an officer arises independently of the conviction of the PCBU.
It is in the area of officers and their prosecution that particularly significant changes have been brought about by the Act.
The liability structure
Under the repealed Act there was a single offence of failing to perform an obligation. The level of penalty depended on whether there were health consequences of the breach, and varied according to the level of the consequence. Under the Act there are significant changes to:
(a) The offences;
(b) The way they are to be prosecuted or defended;
(c) The appellate structure.
The New Offences
There are three categories of offence, with different elements and different outcomes,
dependent, not on consequence of conduct, but upon the seriousness of the conduct itself. The maximum penalties are significantly greater, and the level of liability will vary according to the status of the offender.
The most serious offence is the Category 1 offence (s.31) which is designated as a crime, and pursuant to s.3 of the Criminal Code is an indictable offence and must be prosecuted on indictment, (that is before a judge and jury).
Category 2 and Category 3 offences (s.32 and 33) are simple offences and must be
prosecuted summarily under the Justices Act (s.230).
A common element for each category is that the person charged owes a health and safety duty.
For a Category 1 offence, the prosecution must also prove:-
(a) That the PCBU, without reasonable excuse, engaged in conduct that exposed an individual, to whom the duty is owed, to the risk of death or serious injury or illness;
and
(b) The PCBU was reckless as to the risk to an individual of death or serious injury or illness.
For a Category 2 offence, the prosecution must, additional to the health and safety duty, prove that the PCBU has failed to comply with the duty and further that the failure exposed an individual to a risk of death or serious injury or illness.
For a Category 3 offence, the prosecution must establish, in addition to the health and safety duty that the PCBU failed to comply with the duty.
In each case, the level of penalty in ascending order of seriousness is dependent upon
whether the perpetrator is:
(a) An individual;
(b) An individual, either as a PCBU or as an officer of a PCBU; and
(c) A corporation.
For Category 1 offences, levels (a) and (b) each includes a maximum penalty of five years imprisonment. Corporate maximum penalties run up to $3,000,000.00. The duty imposed on a PCBU requires that the PCBU eliminate or minimise risks to health and safety insofar as is reasonably practicable. Thus the liability is not absolute.
For a Category 1 offence, the prosecution must also prove an absence of “reasonable”
excuse for the impugned conduct.
Sections 23 (unwilled act/accident) and 24 (mistake of fact) of the Criminal Code apply to Category 1 offences, but have limited, if any, application to Category 2 and Category 3 offences (s.33A).
This short analysis of the offence creating provisions shows that there have been substantial changes to the way such matters are to be litigated, many of which are to my mind positive. Firstly, and most importantly, we have left the offence structure which permitted the prosecution to simply prove an obligation, prove an incident (most prosecutions follow death or injury) and then in effect challenge the defendant to prove one of the narrow defences available pursuant to s.37 of the repealed Act of operating with the regulatory framework, or that the commission of the offence was due to causes over which the defendant had no control.
Now it will be necessary for the prosecution to prove the elements of the offence including, for a Category 1 offence, that the defendant engaged in the impugned conduct without reasonable excuse, and prove that s. 23 and 24 of the Criminal Code, if raised on the evidence, have no application.
The new provisions, it will be seen, are more focused on punishment of conduct, rather than consequence, although I expect the prosecutions will nonetheless continue to follow largely upon serious incidents.
Appeals
Section 668D of the Criminal Code permits an appeal to the Court of Appeal against a conviction or sentence for an indictable offence (Category 1 offences). Otherwise, an appeal lies to a judge of the District Court, and then on matters of law to the Court of Appeal, for Category 2 and Category 3 offences. This is a significant change to the current appellate structure which permits an appeal as of right only to the Industrial Court, and then Judicial review if jurisdictional error can be established (Kirk v. IRCNSW).1
The new structure brings about what, to my mind, is the desirable outcome of bringing these offences into the mainstream of the criminal justice system, and away from the industrial system. Appeals will be either direct to the Court of Appeal (Category 1 offences) or to a judge of the District Court (Category 2 and Category 3 offences). This gets away from the difficulties of the “specialist tribunal” referred to in both judgments of the High Court in Kirk.2 It is to be hoped that this will lead to a more open approach by the prosecution to their task — in particular to provide proper particularisation of offences, which will in turn lead to fewer pre-trial applications which currently need to be brought in almost every case.
Joinder of Charges
It is interesting to note that the old joinder provisions have been substantially changed.
Section 164(2) of the repealed Act provided:
(2) More than 1 contravention of a workplace health and safety obligation under part 3 may be charged as a single charge if the acts or omissions giving rise to the claimed contravention happened within the same period and at the same workplace.
Section 233(1) of the Act provides:
1. Two or more contraventions of a health and safety duty provision by a
person that arise out of the same factual circumstances may be
charged as a single offence or as separate offences.
2. This section does not authorise contraventions of two or more safety duty provisions
to be charged as a single offence.
In my view, s,164(2) did not authorise the charging of multiple breaches in a single count, but in separate counts in the one complaint (see s.43 and s.4 (definition of complaint) of the Justices Act). However, the new provision seems to authorise the charging of multiple breaches of the same duty in a single charge, if they arose out of the same factual circumstance. This is a narrower basis than s.164(2), but more clearly brings about the result that prosecutors claim s.164(2) brought about. However, the new legislation does not authorise the charging of breaches of multiple duties as a single count, which is a practice which now seems sometimes to be followed, although in my view, incorrectly. Neither authorises the charging of more than one person in a single count.
Time Limits
Time limits have, by and large, been significantly extended and there should in future be a reduction in litigation concerning the application of time limits. They should, however, be strictly enforced by the Courts, given their significant extension.
The effect of the new type of limitation based on coronial findings, means that prosecutions may now be brought many years after an event. It means that in cases where a death or serious injury occurs in a workplace, it will be important for a PCBU to be represented at a coronial inquest, particularly if workplace health and safety charges have not been brought, or have not been finalised. The exact effect of the coronial extension is yet to be considered by a Court, although a similar extension was recently added to the repealed legislation, and has been added to other regulatory offence regimes.
However, a significant change is that the proceedings may be brought only by the regulator, or an inspector authorised in writing by the regulator Thus, significantly, timeframes are fixed in terms of when a matter comes to the attention of the regulator rather than to the particular complainant for a charge.
Category 1 Offences
These represent a new chapter in workplace health and safety enforcement in Queensland. Category 1 offences are to be prosecuted on indictment — see ss. 1, 3 and 560 of the Criminal Code.
Generally speaking, committal proceedings (such as they are in Queensland) are required, although in a very truncated form, since the so called “Moynihan Reforms”. Section 560 of the Criminal Code makes it plain that the conduct of the prosecution of these offences will be under the control of the Director of Public Prosecutions. In the absence of other provisions for the Court of trial, it seems likely that the matters will be tried in the District Court.
A number of provisions of the Criminal Code will have a significant effect on the conduct of these matters:
1. Section 590 requires the presentation of an indictment no later than six months after the date on which the person was committed for trial. Although s.590 also provides for circumstances in which the prosecution may overcome a failure to do that, this is nonetheless a significant control upon delay in bringing these prosecutions and is treated very seriously by the Courts.
2. Section 590AA provides for pre-trial directions and rulings.
3. Section 590AAA to 590AX provides for, and controls, prosecution disclosure
obligations;
4. Section 590B to G identifies the disclosure obligations of those in control of the
defence of a matter in the Supreme and District Courts;
5. Section 594A makes provision for the appearance and plea by a corporation;
6. Section 604 makes provision for the trial of these matters by a jury, subject always of course to an application pursuant to s.614 for an order that a trial be heard by a judge sitting alone. This is a matter which, in workplace health and safety prosecutions should not be ignored, as issues of prejudice may arise in respect of defendants in these types of proceedings;
7. Joinder of these offences will be controlled by s.567 and s.568 of the Criminal Code rather than s.233 of the Act.
Category 2 and 3 Offences
Section 230 of the Act requires that proceedings for an offence against the Act, other than a Category 1 offence, must be taken in a summary way under the Justices Act. For this reason it seems to be impossible to indict both a Category 1 offence and charge a Category 2 or Category 3 offence, in the alternative, on that indictment.
Section 233 of the Act might, at first glance, suggest that there could be such a joinder, but in my view, given the very specific directions in s.230(1AA), this doesn’t seem to be an appropriate interpretation of s.233.
Sentencing for Offences
Courts have been given significantly broader powers on sentencing offenders (see ss.234 to 242 of the Act). These powers may be used to impose other orders on offenders over and above the penalty in s.31 to 33). Some of them may have serious consequences for defendants, both in terms of cost and in terms of other consequences (e.g. adverse publicity).
Adverse publicity orders (s.236) are capable of being broad, and onerous and may, in some cases, be quite expensive.
Restoration orders (s.238) seem to be more applicable to other types of offences e.g. breaches of the Environmental Protection Act.
Workplace Health and Safety project orders (s.238) may require an offender to undertake a stated project for the general improvement in work health and safety within a period stated in the Order.
The extent of this provision will only be known after it has been litigated. I am unsure from a reading of the provision as to whether such orders would be limited to an improvement in work health and safety within an offender’s environment or whether they could be of more general application. They have the potential to be very financially burdensome if applied more widely.
Section 239 provides for a form of workplace, health and safety bond — my expectation is that this will only be used for offences at the minor end of the scale.
With the exception of the last matter, none of these orders is going to reduce the burden on an offender, although I think it will be open to argue that a penalty should be looked at globally, and the level of punishment across all orders should be appropriate to the offender’s conduct, so that a lesser fine might be imposed where there are other orders to be made. However, s.235 makes it plain that such orders may be made in addition to a fine or term of imprisonment imposed.
Prosecution of Category 1 offences
My expectation is that there will be few Category 1 charges brought:
(a) There should be few matters that qualify, as the evidentiary hurdle for the prosecution is a very high one;
(b) Workplace health and safety will not want to lose control of their cases which they do, if the Director of Public Prosecutions takes it over, as he will, if it is to be prosecuted on indictment.
Pandora’s Box
Section 231 is an unusual and concerning provision. I will set it out in full.
231 Procedure if prosecution is not brought
(1) Ifâ
(a) a person reasonably considers that an act or omission constitutes a category 1 offence or a category 2 offence; and
(b) no prosecution has been brought in relation to the act or omission after 6 months but not later than 12 months after the act or omission happens;
the person may make a written request to the regulator that a prosecution be brought.
(2) Within 3 months after the regulator receives a request the regulator mustâ
(a) advise the person, in writingâ
(i) whether the investigation is complete; and
(ii) if the investigation is complete, whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought; and
(b) advise the person who the applicant believes committed the offence of the application and of the matters set out in paragraph (a).
(3) If the regulator advises the person that a prosecution for a category 1 or category 2 offence will not be brought, the regulator mustâ
(a) advise the person that the person may ask the regulator to refer the matter to the director of public prosecutions for consideration; and
(b) if the person makes a written request to the regulator to do so, refer the matter to the director of public prosecutions within 1 month of the request
(4) The director of public prosecutions must consider the matter and advise (in writing) the regulator within 1 month as to whether the director considers that a prosecution should be brought.
(5) The regulator must ensure a copy of the advice is given toâ
(a) the person who made the request; and
(b) the person who the applicant believes committed the offence.
(6) If the regulator declines to follow the advice of the director of public prosecutions to bring proceedings, the regulator must give written reasons for the decision to any person to whom a copy of the advice is given under subsection (5).
What this provision appears to permit is a person (unlimited in any way) who considers that a Category 1 or Category 2 offence has been committed in some location (otherwise unlimited) and where no prosecution has been brought within six months (and not later than twelve months) after the alleged contravention, that person may request the regulator to bring a prosecution. Within three months the regulator must advise the person making the request whether the investigation is complete and, if it is, whether a prosecution will be brought, or give reasons why it will not, and advise the suspect of the application and provide him/her with the same information. If the regulator’s position is that a prosecution will not be brought, he must tell the requestor that he/she may ask the regulator to refer the matter to the DPP and if such a request is made the regulator must refer it within one month. Within a further month (I’m sure the Director will be delighted about that) the Director must consider the matter and advise whether he/she considers that the prosecution should be brought. The regulator then must give a copy of that advice to both the requestor and the suspect, and if the regulator declines to follow the advice of the Director to bring proceedings, he/she must give written reasons for the decision to any person to whom a copy of the advice is given under ss.5. If Lewis Carroll hadn’t written “Alice in Wonderland”, this provision would have sufficed. It is open to unlimited abuse. One or more obsessive people, or people with an agenda, could bring the regulator’s office to a halt and swamp the DPP with short turn around requirements for advice. To describe it as ridiculous is an understatement. However, forms have already been gazetted for use under this provision.
Although it is referred to in the introductory passages of the explanatory notes to the Bill and in the body of those notes, there is no explanation of the need for such a provision, nor any suggestion as to how its abuse is to be controlled.
Conclusion
The new legislation brings about significant changes in the enforcement of workplace health and safety legislation. To some extent the full effect of those changes will depend on the course chosen by those who prosecute. It will be an interesting journey, although a potentially painful one for some defendants.
A.J. Glynn S.C.
Footnotes
- (1) 2010 239 CLR 531
- Ibid
