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NSW removes legal loophole

Legislation and Guidance
NSW removes legal loophole

NSW removes legal loophole

Legislation has been introduced into the New South Wales parliament to ensure work health and safety (WHS) prosecutions aren’t thrown out on a technicality.

The Work Health and Safety Amendment Bill 2013 clarifies that the District Court and the Local Court have jurisdiction over WHS prosecutions brought under the repealed Occupational Health and Safety (OHS) Act 2000.

The OHS Act 2000 was repealed and replaced with the Work Health and Safety (WHS) Act 2011 in January 2012.

Under transitional arrangements, serious prosecutions brought under the OHS Act were to be dealt with in the District Court instead of the Industrial Court, where they were previously heard, said NSW Minister for Finance and Services Andrew Constance in the bill’s second reading speech.

The bill also clarifies the validity of the WHS Regulations 2011 and that proceedings may be brought and prosecuted by a legal practitioner representing a WorkCover inspector or the regulator.

The District Court’s jurisdiction and the other matters had been challenged in the following cases:

Empire Waste Pty Ltd and Dean Baldwin v District Court of NSW and Inspector Steven Brock; Australian Native Landscapes Pty Ltd v Inspector Nathan McDonald and District Court of NSW; and Attorney General for the State of NSW v Built NSW Pty Ltd and Air Conditioning Engineering Services Pty Ltd.

The amendments aim to prevent such challenges in the future. They also allow prosecutions that were terminated on the technicalities addressed in the bill to be recommenced, said Constance.

For more details, visit the second reading speech and the bill.

Published on 24 October 2013 in NSCA Safe-T-Bulletin.

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