Industrial Court of New South Wales CITATION: Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72 PARTIES: Inspector Nathan Hamilton (Prosecutor) John Holland Pty Limited (Defendant) FILE NUMBER(S): IRC 1989 and 1990 of 2007 CORAM: Boland J President; Walton J Vice-President; Haylen J; Staff J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - Reference of questions of law - Six questions of law - Defendant charged for alleged contravention of s 8(1) and s 8(2) of Occupational Health and Safety Act 2000 - Validity of charges - Collapse of tunnel roof in Lane Cove Tunnel - Whether charges contain essential legal elements - Whether charges contain essential factual ingredients - Whether charges in accordance with requirements of Industrial Relations Commission Rules 1996 - "Statement of offence" - Particulars - Consideration of Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 262 ALR 569 - Consideration of Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 - If the charges are defective whether the defects are curable - Consideration of s 16 of Criminal Procedure Act and s 170 of the Industrial Relations Act - Duplicity - Multiple contraventions - Questions of law answered Consumer Protection Act 1969 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 LEGISLATION CITED: Industrial Relations Commission Rules 2009 Magistrates (Summary Proceedings) Act 1975 (Vic) Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Occupational Health and Safety Act 1985 (Vic) Occupational Health Safety and Welfare Act 1986 (SA) Supreme Court (Summary Jurisdiction) Act 1967 Trade Practices Act 1974 (Cth) Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501; (1993) 53 IR 21 Broome v Chenoweth (1946) 73 CLR 583 Campbell v Hitchcock [2003] NSWIRComm 148 Chugg v Pacific Dunlop Ltd [1988] VR 411 Cooper v Coffs Harbour City Council [1997] NSWSC 598; (1997) 98 A Crim R 340 De Romanis v Sibraa (1977) 2 NSWLR 264 Diemould Tooling Services Pty Ltd v Oaten; Santos Limited v Markos [2008] SASC 197; (2008) 101 SASR 339; (2008) 174 IR 80 Doja v R [2009] NSWCCA 303 Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 Epacris Pty Limited v Director-General, Department of Natural Resources [2007] NSWCCA 76; (2007) 170 A Crim R 542; (2007) 69 NSWLR 507; (2007) 153 LGERA 173 Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 John L Pty Limited v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508 Johnson v Miller [1937] HCA 77; (1937) 59 CLR 476 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 262 ALR 569 CASES CITED: Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83 Lodhi v R [2006] NSWCCA 121 McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) [2002] NSWCCA 24; (2002) 54 NSWLR 39 R v Australian Char Pty Ltd [1999] 3 VR 834 R v Cassell (Court of Criminal Appeal, 24 July 1996, unreported) R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 R v McVitie [1960] 2 QB 483 Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Santos Limited v Markos; Diemould Tooling Services Pty Ltd v Oaten [2008] HCATrans 372 Stanton v Abernathy (1990) 19 NSWLR 656 The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57 Videon v Barry Burroughs Pty Ltd (1981) 53 FLR 425 Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77; (1996) 139 ALR 27 WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd [2003] NSWIRComm 35; (2003) 126 IR 1 Workcover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 HEARING DATES: 6 April 2010 DATE OF JUDGMENT: 4 June 2010 Mr J V Agius SC with Mr R Reitano of counsel and Mr B G Docking of counsel (Prosecutor) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Mr G J Hatcher SC with Mr G W McGrath of counsel (Defendant) Herbert Geer, Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, President WALTON J, Vice-President HAYLEN J STAFF J Friday 4 June 2010 Matter No IRC 1989 of 2007 INSPECTOR NATHAN HAMILTON v JOHN HOLLAND PTY LTD Prosecution pursuant to s 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 1990 of 2007 INSPECTOR NATHAN HAMILTON v JOHN HOLLAND PTY LTD Prosecution pursuant to s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT OF THE COURT [2010] NSWIRComm 72 1 These matters concern references of questions of law by Backman J to the Full Bench of the Industrial Court at the request of the Crown under s 5AE(1) of the Criminal Appeal Act 1912 and s 196 of the Industrial Relations Act 1996. The questions of law raise for consideration the validity of charges laid against the defendant, John Holland Pty Ltd, under the Occupational Health and Safety Act 2000 ('OHS Act 2000'). 2 The references were sought following a notice of motion filed by the defendant in the proceedings seeking, in effect, that the proceedings brought against it under s 8(1) and s 8(2) of the OHS Act 2000 be dismissed for want of jurisdiction. The principal basis upon which the motion was advanced was the decision of the High Court in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 262 ALR 569 (hereinafter referred to as 'Kirk'). Background 3 Before addressing the questions of law and the implications of Kirk, some background is necessary. On 26 October 2007, Inspector Nathan Hamilton, an Inspector appointed under the OHS Act 2000, filed an Application for Order in two matters, IRC 1989 of 2007 (the s 8(1) charge) and IRC 1990 of 2007 (the s 8(2) charge). The Applications were accompanied by Affidavits in Support. The applications and affidavits alleged a failure to ensure the safety at work of employees and other persons by the defendant employer from about 27 October 2005 to and including 2 November 2005 in a section of the Lane Cove Tunnel in Sydney whilst it was under construction. The alleged failures concerned an incident that occurred on 2 November 2005 when a large section of a tunnel roof collapsed. It was alleged that the employees and other persons working within the tunnel evacuated the tunnel as the section of the tunnel roof collapsed, narrowly escaping injury. 4 The Application for Order in Matter No IRC 1989/07 was in the terms set out in annexure A to this judgment. The annexure is to be regarded as part of this judgment. The Application for Order in Matter No IRC 1990/07 was in the terms set out in annexure B to this judgment. The annexure is to be regarded as part of this judgment. It will be seen from annexure A that there is an allegation that: John Holland Pty Ltd ... a corporation whose registered office is situated at ... ("the defendant"), being an employer, from about 27 October 2005 to and including 2 November 2005 in the MCAA including its intersection with MC5B of the Lane Cove Tunnel at Sydney in the State of New South Wales ("the premises"). (The "MCAA" was defined in the Application as being a reference to the Pacific Highway Exit Ramp Tunnel and the "MC5B" was defined as being a reference to the Marden Street Ventilation tunnel). FAILED TO ensure the health, safety and welfare at work of all its employees and in particular, John Labruyere, Noel Makene, Mark Watson, Bryan Greenfield, Craig Lightfoot, Steven Swain, Glynn Barker, Lawrence Grace, Chris McKervey, Hamish Studholm, David Shaw, Regan Findlay, Jason Tyler and Sam Jones contrary to s 8(1) of the Occupational Health and Safety Act 2000. 5 The Application for Order thereafter identified what were described as particulars of the charge of which there were three, and numerous sub-particulars. The three particulars were that: there was a risk of being struck by falling rock and/or tunnel collapse; that the defendant failed to ensure that the premises, controlled by the defendant where its employees worked, were safe and without risks to health; and that the defendant failed to ensure that the systems of work were safe and without risks to health. 6 In respect of the s 8(2) Application, similar allegations were made except that the allegations were in respect of persons other than the defendant's employees. 7 On 26 October 2007, Staunton J made Orders pursuant to s 246(1) of the Criminal Procedure Act 1986, as applied by s 168 of the Industrial Relations Act that the defendant appear before the Court at a given time and place 'to answer to the said offence charged in the annexed application for order filed in the Industrial Registry on 26 October 2007, a copy of which is attached.' Jurisdiction and procedure 8 As has been explained, the defendant was charged with offences under s 8(1) and s 8(2) of the OHS Act 2000. Breach of the duty imposed by those statutory provisions is an offence: s 12. Sections 8(1) and 8(2) are in the following terms: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 9 Sections 8(1) and 8(2) are the successor provisions to ss 15 and 16 of the Occupational Health and Safety Act 1983 ('the 1983 Act'). Kirk was concerned with ss 15 and 16 of the 1983 Act. It was accepted by the parties to the present proceedings, however, that the successor and predecessor provisions were in relevantly similar terms. 10 Section 12 provides as follows: 12 Penalty for offence against this Division A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision and is liable to the following maximum penalty: (a) in the case of a corporation (being a previous offender)—7,500 penalty units, or (b) in the case of a corporation (not being a previous offender)—5,000 penalty units, or (c) in the case of an individual (being a previous offender)—750 penalty units or imprisonment for 2 years, or both, or (d) in the case of an individual (not being a previous offender)—500 penalty units. 11 By s 105(1)(b) of the OHS Act 2000 (see also s 168(1) of the Industrial Relations Act), proceedings for an offence against that Act are to be dealt with summarily before the Industrial Court (references to "the Commission in Court Session" are now to be read as a reference to the Industrial Court of New South Wales: s 151(A) of the Industrial Relations Act). Section 146(1)(e) of the Industrial Relations Act confers on the Court 'functions conferred on it by this or any other Act or law.' Section 152 of the Industrial Relations Act establishes the Court as a superior court of record. 12 Section 168 of the Industrial Relations Act applies Pt 5 of Ch 4 of the Criminal Procedure Act 1986 to proceedings for an offence taken before the Industrial Court. Section 170 of the Criminal Procedure Act applies Ch 4 of that Act to proceedings dealt with summarily (s 170(1)), and applies Pt 5 of Ch 4 to proceedings before the Industrial Court (s 170(3)(b)). 13 Section 246(1) and (2) of the Criminal Procedure Act, which is in Pt 5 of Ch 4 provides: (1) A prosecutor may apply for an order: (a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or (b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order. (2) The application must be in accordance with the rules (emphasis added). … 14 The rules at the relevant time were the Industrial Relations Commission Rules 1996 and, in particular, r 217B, which provided: 217B Prosecutions (1) Proceedings before the Commission in Court Session for an offence (other than contempt) must, unless otherwise provided, be commenced by an application for an order under section 4 (1) of Supreme Court (Summary Jurisdiction) Act 1967 (as applied to the Commission by section 168 of the Industrial Relations Act 1996). (2) The application must state: (a) the name and address of the person by whom the proceedings are brought ( the prosecutor ), and (b) the capacity in which the prosecutor is taking the proceedings, and (c) the name and address of the person against whom the proceedings are brought ( the defendant ), and (d) the Act and the section under which the defendant is alleged to have committed an offence, and (e) the nature of the offence that is alleged (emphasis added). (3) The Commission may require the prosecutor to file, in support of the application for an order filed under subrule (1): (a) an affidavit verifying the allegations made in the application, and (b) a minute of the order claimed. 15 The Supreme Court (Summary Jurisdiction) Act 1967 ('the Summary Jurisdiction Act') was repealed on 7 July 2003. Section 246 of the Criminal Procedure Act answers the description 'unless otherwise provided' in r 217B(1), and by force of s 246 and s 3 of the Criminal Procedure Act, the provisions of r 217B(2) regulate the form and content of the application. There is no prescribed form of an Application for Order or charge in this jurisdiction. Kirk 16 Relevantly, it was held in Kirk that a statement of an offence must identify the act or omission said to constitute a contravention of ss 15 or 16 (Kirk at [14] and [19]). As the prosecutor submitted: 'It is the failure on the part of an employer to take particular measures to prevent an identifiable risk eventuating that is the gravamen of an offence (Kirk at [14])'. The joint judgment in Kirk (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) criticised the particulars that had been specified in the charges in Kirk. At [26]-[27] the joint judgment referred to the common law requirements regarding an information (references omitted): [26] The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW) , it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence". These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller , Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions". McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged". [27] The acts or omissions the subject of the charges here in question had to be identified if Mr Kirk and the Kirk company were to be able to rely upon a defence under s 53. The defendant in Johnson v Miller was placed in a similar position. The statute in question provided that a licensee of licensed premises would be liable to a penalty if a person was present on the premises during certain prohibited hours, unless the licensee could establish one of the justifications or excuses relating to that person's presence provided for in the statute. Dixon J observed that each of the justifications depended upon some feature pertaining to the person found in, or seen leaving, the premises and that no licensee could succeed in bringing the case within any of the grounds of excuse unless the person or persons were identified and their presence on a distinct occasion alleged. 17 At [28] the joint judgment identified what was considered to be inadequate particularisation in the charges against the Kirk company: [28] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable. 18 At [30] it was observed that because no application was made to quash the orders made by the Industrial Court that required Mr Kirk and the Kirk company to appear to answer the offences charged, it was neither necessary nor appropriate to examine whether those orders were made upon an application made 'in accordance with the rules', or to consider whether or how s 6 of the Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. Nevertheless, it was said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges (references omitted): [30] No application was made to the Court of Appeal for an order in the nature of certiorari quashing the orders made by the Industrial Court that required Mr Kirk and the Kirk company to appear to answer the offences charged. Those orders of the Industrial Court were expressed as being made pursuant to s 4(1) of the Summary Jurisdiction Act as applied by s 168 of the IR Act. Section 4(1) of the Summary Jurisdiction Act permitted the making of an order "[u]pon an application being made ... in accordance with the rules" and the relevant rules required that the nature of the offence be stated. Section 6(1) of the Summary Jurisdiction Act provided, in effect, that no objection was to be taken or allowed to any order made under s 4 by reason of any alleged defect in it in substance or in form. Because no application was made to quash the orders requiring appearance to answer the charges, it is neither necessary nor appropriate to examine whether those orders were made upon an application made "in accordance with the rules", or to consider whether or how s 6 of the Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller where it would act as "an administrative commission of inquiry" rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences. 19 Kirk makes clear that it is the act or omission of the employer that constitutes the offence and in the absence of that particularisation the Kirk company was denied the opportunity to properly put a defence under s 53(a) of the 1983 Act (at [34], [38]): [34] Walton J referred to earlier case law that the duty imposed upon an employer "is to be construed as meaning to guarantee, secure or make certain" and that the duty is directed at obviating "risks" to safety at the workplace. References to guarantees, and emphasis upon general classes of risks which are to be eliminated, tend to distract attention from the requirements of an offence against ss 15 and 16. The approach taken by the Industrial Court fails to distinguish between the content of the employer's duty, which is generally stated, and the fact of a contravention in a particular case. It is that fact, the act or omission of the employer, which constitutes the offence. Of course it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is – what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge. … [38] A consequence of the matter proceeding to conviction on the charges as stated, absent the identification of measures the Kirk company should have taken, was that it was denied the opportunity to properly put a defence under s 53(a). Instead, the Kirk company was required to show why it was not reasonably practicable to eliminate possible risks associated with the use, or possible use, of the ATV. The guarantee against risk, seen as provided by s 15, was treated as continuing, despite a defence under s 53(a) being raised. The operation of that defence was treated as largely confined to an issue of reasonable foreseeability. 20 It was held in the joint judgment that the misconstruction of s 15 was a jurisdictional error (at [74]-[75]) (references omitted): [74] The first of the errors in question in this case – the errors of construction of s 15 of the OH&S Act – can be identified as a jurisdictional error of the third kind identified in Craig v South Australia . That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct. [75] The explanation just offered also demonstrates that the error made by the Industrial Court was not only an error about the limits of its functions or powers. It was an error which led to it making orders convicting Mr Kirk and the Kirk company where it had no power to do so. The Industrial Court had no power to do that because an offence against the OH&S Act had not been proved. It follows that the Industrial Court made orders beyond its powers to make. 21 We note the prosecutor's submission that as a consequence of the two central matters found by the High Court to constitute jurisdictional error having been raised by members of the High Court and not by the appellant either before the High Court, the Court of Appeal or the Industrial Court, the parties were not in a position to provide detailed assistance to the High Court in its deliberations as to the full operation of the legislation. That perhaps explains why it has now become necessary to determine the type of issues that have arisen in this and cases to follow, involving disputes over just what the High Court intended in Kirk. The questions of law 22 The questions of law referred by Backman J relating to s 8(1) were in the following terms: a. Was the Application for Order filed on 26 October 2007 in proceedings No 1989 of 2007 (Application for Order) an application duly made in accordance with sections 170(3)(b) and 246(1) of the Criminal Procedure Act 1986 (NSW), section 168 of the Industrial Relations Act 1996 (NSW) and the Industrial Commission (sic) Rules 1996 (NSW)? b. Does the purported charge in the Order made on 26 October 2007 in proceedings No 1989 of 2007 (Order) contain the essential legal elements of a charge under section 8(1) of the Occupational Health and Safety Act 2000 (NSW) ( OHS Act )? c. If the answer to Question b is in the negative, was the Order made within the jurisdiction of the Industrial Court of New South Wales? d. If the answer to Question c above is in the negative, must the Application for Order and Order be dismissed as invalid and/or void? e. Does the Order disclose the essential factual ingredients of the offence charged under section 8(1) of the OHS Act ? f. If the answer to Question e is in the negative, can the matter proceed as presently pleaded? 23 The questions of law relating to the s 8(2) Application for Order were in relevantly similar terms to the s 8(1) Application. Defendant's position 24 The essence of the defendant's position was that the Applications for Order did not allege an offence known to the law, nor disclose the nature of any such offence because it had not been alleged against the defendant that it had not implemented a measure which ought to have been implemented. In this respect, the defendant referred to the 'Statement of Charge' (as distinct from the particulars) in the Application for Order in Matter No IRC 1990/07 (the Statement was relevantly similar in Matter No IRC 1989/07 except it referred to employees): Failed to ensure that persons other than its employees, and in particular, John Wilson, Daryl Gilchrist, Phillip Lloyd, Anna Sayyadi, Laura McWinnie, Robert Colquhon, Karen Colquhon, Sylvia Youngeryan and Carlos Baccan were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place or work, contrary to s 8(2) of the Occupational Health and Safety Act 2000. 25 The defendant submitted: It is not sufficient for the charge to allege that that some general state of affairs has arisen or to simply follow the general words of the section creating the duty ( Kirk v Industrial Relations Commission at [22] & [23]). A defendant may fail to attain at a workplace the state of affairs required by the statute, but that failure will not constitute an offence unless the prosecutor can identify (and prove beyond reasonable doubt) some act of the defendant committed or some step that the defendant has failed to take which is causally related to the creation of the impugned state of affairs. In the case at hand, in the charge it has not been alleged against the defendant that it has not implemented a measure which ought to have been implemented. If the defendant had pleaded to the charge it would not have pleaded to an offence known to law. ... The statement of charge itself makes no allegation of any act or omission by the defendant and for this reason alone is deficient. After the statement of charge particulars are provided which allege two separate risks and a number of independent and discrete omissions by the defendant in relation to general headings broadly consistent with the sub-paragraphs set forth under sub-section 8(1) of the Act. As the offence is constituted by an act or omission the particulars in alleging multiple omissions in relation to multiple duties discloses that what in fact the Prosecutor alleges is not an act or omission but rather a failure to achieve a state of affairs. 26 The defendant submitted the Full Bench should answer the six questions submitted to it in each of the proceedings as follows: Qa. Was the Application for Order filed on 26 October 2007 in proceedings No 1989 of 2007 or 1990 of 2007 (Application for Order) an application duly made in accordance with sections 170(3)(b) and 246(1) of the Criminal Procedure Act 1986 (NSW), section 168 of the Industrial Relations Act 1996 (NSW) and the Industrial Commission (sic) Rules 1996 (NSW)? Aa. No. The Application for Order did not allege an offence known to the law, nor disclose the nature of any such offence. Qb. Does the purported charge in the Order made on 26 October 2007 in proceedings No 1989 of 2007 or 1990 of 2007 (Order) contain the essential legal elements of a charge under section 8(1) of the Occupational Health and Safety Act 2000 (NSW)? Ab. No. No act or omission is alleged against the Defendant in the Statement of Charge. Qc. If the answer the Question b is in the negative, was the Order made within the jurisdiction of the Industrial Court of New South Wales? Ac. No. Qd. If the answer to Question c above is in the negative, must the Application for Order and Order be dismissed as invalid and/or void? Ad. Yes. Qe. Does the Order disclose the essential factual ingredients of the offence charged under section 8(1) of the OHS Act? Ae. The question does not arise in view of the affirmative answer to question d. Alternatively, question e. should be answered No. Qf. If the answer to Question e is in the negative, can the matter proceed as presently pleaded? Af. The question does not arise in view of the affirmative answer to question d. Alternatively, question f. should be answered No. Prosecutor's position 27 The prosecutor drew a distinction between the essential legal elements of a charge and the essential factual ingredients of an offence (Cooper v Coffs Harbour City Council [1997] NSWSC 598; (1997) 98 A Crim R 340; McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) [2002] NSWCCA 24; (2002) 54 NSWLR 39; Doja v R [2009] NSWCCA 303), identified the essential legal elements of the charges under ss 8(1) and 8(2) (WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd [2003] NSWIRComm 35; (2003) 126 IR 1 per Kavanagh J at [272]; Campbell v Hitchcock [2003] NSWIRComm 148 per Walton J, Vice-President at [123]), and identified the essential factual ingredients of the offences under ss 8(1) and 8(2) (Johnson v Miller [1937] HCA 77; (1937) 59 CLR 476; De Romanis v Sibraa (1977) 2 NSWLR 264; John L Pty Limited v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508). 28 In relation to the essential legal elements of the s 8(1) charge, the prosecutor submitted: a. the language of the charge, on its face, describes an offence known to the law, namely, a contravention of s 8(1). The court is thereby vested with jurisdiction to hear the prosecution of that offence. The s 8(1) charge does not omit any of the essential legal elements; b. the Court is also entitled to consider the linked document comprising the prosecutor's Affidavit in Support of Application for Order. The reasonable recipient of an Application for Order and the Affidavit should be presumed to have read the whole of both documents: see by way of analogy, Epacris Pty Limited v Director-General, Department of Natural Resources [2007] NSWCCA 76; (2007) 170 A Crim R 542; (2007) 69 NSWLR 507; (2007) 153 LGERA 173; c. the s 8(1) charge describes the nature of an offence by use of the statutory language and that is sufficient in respect of the legal elements: Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 at [130]; d. in any event, a failure to plead the elements of an offence does not always make an information invalid and the proceedings may not be a nullity ( Rockdale Beef at [123]). 29 In relation to the essential factual ingredients of the offence charged under s 8(1), the prosecutor submitted: a. all factual ingredients were set out in the Applications for Order; b. the particulars go to enormous lengths to detail specifically and precisely what acts and omissions on the part of the defendant constituted the offence; c. the Applications for Order alleges for the purposes of s 31(1) of the OHS Act 2000 more than one contravention of s 8(1) of the OHS Act 2000 by the defendant that arise out of the same factual circumstances and this may be charged as a single offence; d. the acts or omissions the subject of the charges have been identified so that the defendant is able to rely upon a defence under s 28; e. the significance of properly characterising the defendant's complaints as alleging imperfectly pleaded factual particulars involve consideration of the following matters: i. it is settled that, in order to succeed in the substantive hearing, the prosecution only needs to establish one of those aspects or Roman numeral particulars to make out the single offence ( Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 at 485 and as applied, for example, by Wright J President, Kavanagh and Boland JJ in The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57; at [93]); ii. there will be no bad conviction because charges exist which disclose an offence ( Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 173 per Jordan CJ); iii. the Court has an inherent authority to ensure that particulars of a charge are given, i.e. where the defect is a want of particularity and the requirements of natural justice make it necessary for the trial judge to order further particulars (see, for example, Stanton v Abernathy (1990) 19 NSWLR 656 at 667 per Gleeson CJ); iv. the common law approach that an indictment is liable to be quashed if objection is taken before trial if it fails to identify an essential factual ingredient of the offence has been ameliorated by statute. There exists statutory sources of power to allow a variance or an amendment, or both, which the prosecutor (if required) may rely upon (see s 16(2) of the Criminal Procedure Act 1986 regarding variance and ss 20 and 21 regarding amendment; s 170 of the Industrial Relations Act 1996 regarding amendments and irregularities); v. whether any further particulars are required may be doubted in the present circumstances, but the case is one in which, if there is before the trial judge a difficulty, amendment of the pleading will be available: Rockdale Beef at [126]; f. in relation to the s 8(2) charge, the prosecutor took a similar approach to that taken regarding the s 8(1) charge in identifying the presence of the legal elements and factual ingredients in the charge; g. it followed from the prosecutor's analysis of the charges that the questions of law referred to the Full Bench should be answered, according to the prosecutor, as follows: (a) Yes. (b) Yes. (c) Does not arise. (d) Does not arise. (e) Yes. (f) Does not arise. The critical issues 30 Although there were six questions referred to the Full Bench, their resolution depends on whether the charges are fundamentally defective such that each is a nullity. In the course of deciding that issue the question arises whether the prosecutor has charged an offence known to the law by pleading all of the essential legal elements of charges under ss 8(1) and 8(2), including, in particular, the acts or omissions said to constitute contravention of ss 8(1) and 8(2) or whether the acts or omissions are essential factual ingredients of the charges, as contended by the prosecutor. That this was an issue may be seen from the respective submissions. The prosecutor identified the essential legal elements of a charge under s 8(1) as follows: 1. The defendant was an employer at the time of the alleged breach; 2. There was a risk to the health, safety or welfare of the defendant's employees; 3. There was a causal nexus between the defendant's alleged breach and the risk to employees' health, safety or welfare; and 4. The risk was to employees at work. 31 The defendant, on the other hand, contended the essential legal elements were referred to in Kirk at [19]: [19] What was necessary to be done in connection with the health, safety and welfare of employees and others at the workplace depended upon the presence of identifiable risks and measures which could be taken to address them. The question which may follow, as to what was or was not reasonably practicable for the employer to have undertaken, is directed to the measures so alleged. It is the employer's act or omission with respect to those measures which had to be identified in the statement of any offence charged under ss 15 and 16. 32 In, apparently, an interpolation of what the joint judgment stated in Kirk, the defendant submitted that the essential legal elements were that: 1. The Defendant was an employer at the relevant time. 2. There was an identifiable risk to the health, safety or welfare of certain persons. 3. There was a particular measure (either by act or omission) which, if it had been taken by the Defendant, would have prevented the identified risk eventuating. 4. The Defendant failed to take that measure. 33 The prosecutor submitted that the defendant's position, that the particular measure had to be pleaded as an essential legal element and could not be located in what were referred to as the particulars of the charge, was 'illogical, irrational and absurd'. It required the Court, in considering each Application for Order, to draw a line above '[t]he particulars of the charge are that' and then to not read what appears below that line. It was submitted that no such imaginary or fictitious line was drawn by the High Court in the way that the defendant had contended. 34 For the reasons that follow, the conclusion we have come to regarding the nature or character of the acts or omissions said to constitute the offences under ss 8(1) and 8(2) is that they are properly to be regarded as essential factual ingredients. But whether the acts or omissions are to be characterised as essential legal elements or essential factual ingredients, the charges are not fundamentally defective because although the relevant alleged acts or omissions are referred as 'particulars' they are, nevertheless, identified in the Applications and do not breach any procedural fairness requirement that the defendant be properly informed of the charge it has to meet or breach the requirement that the court is sufficiently appraised of the legal nature of the offence: Rockdale Beef. 35 We have also concluded, on the proper reading of the Applications and the accompanying affidavits, that the prosecutor has implicitly relied upon s 31 of the OHS Act 2000 in framing the Applications for Order. Section 31 provides that more than one contravention, that is multiple acts or omissions, which arise out of the same factual circumstances may be charged as a single offence. Requirements for pleading 36 It may be accepted that the following common law principles and statutory provisions apply to the pleading of criminal charges in the Court's occupational health and safety jurisdiction: a. it is a fundamental principle of the criminal law that an information or charge must disclose an offence known to the law: Ex parte Lovell; Re Buckley at 173; Johnson v Miller at 486; Broome v Chenoweth (1946) 73 CLR 583 at 601; McConnell Dowell (No 2) at [14]; Doja at [3]; b. the common law requires that there must be precision in criminal pleading: Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77; (1996) 139 ALR 27 at 51 per Kirby J, although the passing of Jervis' Act in England and reforms such as found in Summary Procedure Acts ameliorated the extreme strictness of pleading that previously applied; c. it is generally accepted that the legal elements to be pleaded in a charge consist of the matters that, as a matter of law, must be established for the offence to be made out; and the essential factual ingredients concern the time, place and manner in which the offence was committed: McConnell Dowell (No 2) at [14]; Workcover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 at 131; d. the rule that requires the legal elements of the law to be pleaded in a charge is to require the prosecution to satisfy the court that it has jurisdiction to entertain the criminal proceedings initiated by the charge: Ex parte Lovell; Re Buckley at 166; John L at 519; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at [52]; Doja at [5]; e. putting aside the effect of statutory provisions curing or precluding reliance upon a defect, an information was required to inform the justices of the nature of the offence and the manner in which it was committed. In John L it was said at 519: 'The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence" ( Ex parte Lovell; Re Buckley at 166)'; f. there is no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence: De Romanis at 291 per Mahoney JA, cited with approval in John L at 520. In John L the High Court also cited (at 520) with apparent approval the following passage from De Romanis at 291-292: In Johnson v. Miller … at p 486 Dixon J. saw the decision in Smith v. Moody … at pp 61, 63 as requiring the information to specify 'the time, place, and manner of the defendant's acts or omissions'; McTiernan J. ... at p.501 referred to 'fair information and reasonable particularity as to the nature of the offence charged'. The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N. Ormsby & Sons Pty. Ltd.; Re Mason (1964) 81 WN (Pt.1) (NSW) 286, at pp 290, 291. ... These cases establish that it may not be sufficient for an information to state the offence charged: it may be required to condescend to particulars. But, ... they do not indicate that the information must go beyond the statement of the offence and the proper particularization of it. g. a distinction has been drawn between 'essential factual ingredients' and particulars required to ensure the defendant is able to prepare his or her defence: De Romanis at 292. The latter are not essential particulars: R v Cassell (Court of Criminal Appeal, 24 July 1996, unreported); h. an Application for Order must comply with r 217B of the Industrial Relations Commission Rules 1996 (from 1 February 2010 the relevant rule is r 16.1 of the Industrial Relations Commission Rules 2009); i. section 11 of the Criminal Procedure Act provides that the description of any offence in the words of an Act creating the offence 'is sufficient in law' (s 12 provides that a summary offence, or an indictable offence that may be dealt with summarily, is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms and that nothing in the section affects any requirement made by or under this Act in relation to the form of a court attendance notice or any other document). However, such a provision does not dispense with the common law rule. A statutory provision like that made by s 11 of the Criminal Procedure Act 'relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions': Johnson v Miller at 486 per Dixon J. See also Kirk at [29] and Stanton v Abernathy at 666; j. section 15(2) of the Criminal Procedure Act defines 'indictment' as including 'a court attendance notice or any other process or document by which criminal proceedings are commenced.' This would include an Application for Order; k. section 16 of the Criminal Procedure Act provides that certain defects in an indictment do not affect the indictment: 16 Certain defects do not affect indictment (1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds: … (b) for want of an averment of any matter unnecessary to be proved or necessarily implied, … (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant. l. section 21(1) of the Criminal Procedure Act provides that a defective indictment may be amended: 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. … m. section 168 of the Industrial Relations Act deals with criminal procedure in the Industrial Court and provides: 168 Criminal procedure (1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session. (3) Nothing in subsection (2) affects the operation of section 170. (4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence. Note: See section 196 with respect to the procedure on appeal to the Full Bench in criminal proceedings. It is to be noted that s 168(3) preserves the operation of s 170 of the Industrial Relations Act, which provides: 170 Amendments and irregularities (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. 37 Thus, an Application for Order must comply with the requirements of r 217B, but it must also comply with the common law principles. That means the Application must contain: a. the name and address of the person by whom the proceedings are brought ( the prosecutor ), and b. the capacity in which the prosecutor is taking the proceedings, and c. the name and address of the person against whom the proceedings are brought ( the defendant ), and d. the Act and the section under which the defendant is alleged to have committed an offence, and e. the nature of the offence that is alleged. This may be taken to mean the essential legal elements of the charge: see Johnson v Miller at 486 where Dixon J distinguishes between 'the nature of the offence' (he later refers to it as the 'legal nature of the offence: at 489) and the essential factual ingredients of the 'time, place and manner of the defendant's acts or omissions': see also Rockdale Beef at [109] per Basten JA, who makes the same distinction and see Kirk at [26], and f. the essential factual ingredients which must include the time, place and manner of the defendant's acts or omissions. 38 Section 11 of the Criminal Procedure Act allows for the description of any offence to be made in the words of an Act creating the offence. Section 12 provides that a summary offence is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. However, as we have noted, this does not dispense with the common law rule requiring the essential factual ingredients to be identified in the Application for Order: see for example, Stanton v Abernathy at 666. Thus, if an Application describes an offence under s 8(1) of the OHS Act 2000 in the words of that provision, it would seem to us that the Application has met the requirement of identifying the legal nature of the offence, that is the essential legal elements, subject to the proviso that, in adopting the words of the statute, it admits of no uncertainty or ambiguity: Rockdale Beef at [131]. What must also be identified in the Application are the essential factual ingredients that shall include the time, place and manner of the defendant's acts or omissions. 39 Where an information fails to specify the essential legal elements of the offence the information may not be saved by a Lord Jervis provision such as s 16 of the Criminal Procedure Act: see for example, Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501; (1993) 53 IR 21 at 517 per Mahoney JA. This would be so if the information, by failing to specify an essential legal element, did not disclose an offence known to the law. However, the failure to properly plead the elements of an offence does not 'necessarily render the information invalid': Rockdale Beef at [123] per Basten JA. It is to be noted, however, that s 170 of the Industrial Relations Act arguably goes further than s 16 of the Criminal Procedure Act in allowing amendments in relation to the institution of proceedings where there has been a failure to comply with a rule (eg r 217B): such a failure is to be treated as an irregularity and does not nullify the proceedings. Rockdale Beef 40 Rockdale Beef was not referred to in Kirk because of the approach taken at [30], where it was considered unnecessary to consider the effect of s 6 of the Summary Jurisdiction Act. Accordingly, Rockdale Beef continues to bind this Court, not having been considered or overruled in Kirk. 41 Rockdale Beef concerned the situation where charges were laid under s 10(2) of the OHS Act 2000, but the charge was said to be defective in that it failed to plead a critical element of the offence, namely that the plant was controlled by the defendant 'in the course of a trade, business or other undertaking' (s 10(3)(d)). The issue was whether this defect in the pleading invalidated the proceedings. 42 The basis upon which Basten JA came to the view that the proceedings were not invalidated was explained at [122]-[123]: [122] At a time when the trial court lacked an express power to amend an information, there was an important distinction to be drawn between the provision of particulars (which could be ordered) and amendment of the information itself. That distinction is no longer of importance and s 16(2) should not be read down as if it were. Rather, the relevant principle is that there may be defects which are capable of remedy and defects which are not. The appropriate classification should be considered on a principled basis, and not by use of labels, seeking to distinguish between "essential legal elements" and "essential factual particulars". Cases where an objection in relation to the specification of an essential element of an offence has been upheld, in circumstances where a legislative regime exists, equivalent to that under the Criminal Procedure Act , were not identified in the course of the present proceedings. None of the cases discussed so far was such a case. However, an example, referred to by Sperling J in Taylor , was Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261. That case involved an offence under the National Security Regulations, by supplying a declared service at a price exceeding the maximum permitted under the regulation. The Full Court held that the charge of supplying bottled beer together with corkage for an undivided remuneration (at a rate above the maximum rate) was not an offence under the regulation. Jordan CJ stated (p 263): "It was sought to get over this by appeal to s 65 of the Justices Act , 1902, and a contention that there had been a mere variance. But it has been decided over and over again that a person cannot be convicted upon an information that does not charge an offence, and that s 65 does not meet such a case: Ex parte Lovell … The proper course, when this occurs is to amend the information so as to make it allege an offence known to the law and triable before the magistrate; and for the magistrate then to allow any adjournment reasonably necessary to give the defence an opportunity of meeting the charge." To the same effect, Davidson J stated (p 265): "The further contentions were submitted first, that there was merely a variance which was cured by reason of ss 65 and 115 of the Justices Act ; … . As to the first of these points, however, the section relied upon does not warrant a conviction for an offence that does not exist and the magistrate stated the effect of his order in the precise terms of the information: Ex parte Lovell … . If it had really been intended to rely upon proof of a sale, there should have been an amendment and then if desired by the defendant an adjournment to enable him to raise his defence completely to that charge." Street J agreed with the Chief Justice. [123] These remarks are inconsistent with the proposition that a failure properly to plead the elements of an offence necessarily rendered the information invalid. Indeed, the power of "amendment" itself may be inconsistent with such a conclusion. Accordingly, so long as a defect can be remedied by amendment, the informations are not "void" in the sense that the "defects cannot be removed by amendment or otherwise put aside", adopting the terminology of Mahoney JA in Boral Gas at 518C-D, nor are the proceedings based on them a nullity. 43 In relation to the failure to plead that the plant was controlled by the defendant 'in the course of a trade, business or other undertaking', Basten JA stated at [125]-[126]: [T]he complaint did not involve a fundamental issue, going to the fairness of the prosecution, and should better be described as a complaint "at the level of technical validity", adopting the language of Gleeson CJ in Stanton: see [118] above. Because the charge stated that the plant was "used by people at work" and asserted that the plant was in the control of the defendant, there is little substance in the complaint that it was not alleged to be controlled in the course of a trade, business or other undertaking. Further, the identification of the plant as a "drag chain conveyor" also gave rise to the inference that it was machinery of a kind used in the course of a trade, business or other undertaking. [126] If it were thought necessary, in the interests of procedural fairness, to make express reference to the relevant business in the charge, the prosecution was entitled to rely upon the material set out in the affidavit of Inspector Wolf, in support of the application. That affidavit asserted that the drag chain conveyor was located at the "Boning Room of Rockdale Beef": par 5. The boning room was described as being "at the abattoir": par 6. The abattoir was said to be "owned by" Rockdale Beef: par 10. Whether any further particulars were required may be doubted in these circumstances, but the case was one in which, had there been a difficulty, amendment of the pleading would have been available: see Stanton v Abernathy (1990) 19 NSWLR 656 at 667 and 671G-672F (Gleeson CJ, Priestley and Meagher JJA agreeing). Whatever flaws there may be in relation to the charge under s 10(2), they do not demonstrate invalidity of a kind which would require this Court to hold that the jurisdiction of the Industrial Court had not been adequately invoked. Accordingly, even on that approach there was no jurisdictional error in the decision of the Full Bench. 44 Basten JA also considered the effect of s 16 of the Criminal Procedure Act, finding that it is not necessary that all the words of the statute must be used, or that, where the specific provision is adequately identified, all the legal elements must be expressly identified. His Honour held that some of the elements may be implied by virtue of s 16(1)(b) of the Criminal Procedure Act at [130]-[133]: [130] That history demonstrates that it has long been sufficient to describe the nature of an offence by use of the statutory language: see ss 145A of the former Justices Act 1902 (NSW) and Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 at 174 (Jordan CJ, Davidson and Halse Rogers JJ agreeing) and now s 11. However, it does not follow that all the words of the statute must be used, nor that, where the specific provision is adequately identified, all the legal elements must be expressly identified. For example, some may be necessarily implied from what is described, for the purposes of s 16(1)(b). [131] The fact that s 16(2) (and its predecessors) has been held not to apply in relation to necessary particulars, does not mean that it has no effect in relation to a statement as to the nature of the offence. In Knaggs , Campbell JA noted that the deficiencies in a court attendance notice could be "so gross that as a matter of construction s 16(2)(a) would be read as not applying to them": at [48]. That may be conceded, in circumstances where doubt is left as to the precise offence which is sought to be charged; but that is not this case. Where an offence is identified, in terms which admit of no uncertainty or ambiguity, it would be to ignore the purpose and intended effect of s 16(2) to find that proceedings had not been validly commenced because a phrase had been omitted which described a particular element of the offence which was in substance an extended description of the circumstances in which the section operated, rather than an additional element. In other words, the allegation that a person had control of plant used by people at work, the plant being identified as a drag chain conveyor, is not advanced by saying that the plant was controlled in the course of a business. However, if that were a defect and a matter of substance, it nevertheless fell within the literal terms of s 16(2). [132] More broadly, whether a defect is of a kind that might not be covered by s 16(2)(a) must be judged by reference to the purpose of the statutory requirements not complied with and the likely effect of the non-compliance in relation to the purpose for which the notice is given. If the notice could be read as not clearly identifying the offence charged, or at least "the nature of" that offence, in some material respect, the defect might be outside the scope of the remedial provision. The effect of s 16(2) may be seen to weaken the mandatory statutory requirement with respect to notice, by removing a basis of invalidity. However, its operation will not depend on the good faith of the prosecutor, but on the effect of the notice. The test for validity will differ from that applied in relation to privative clauses: see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [19]-[20] (Gleeson CJ) and [57]-[60] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). On the other hand, the construction to be given to s 16(2) will involve reconciliation between its terms and those of a provision imposing a requirement with which there has been defective compliance: c.f. Plaintiff S157 at [69] and [77]. [133] Section 16(2) (and related provisions) do not reveal an intention to deprive a defendant of a fair trial. The possibility of a need for remedial amendment is recognised in ss 17 and 21. If irremediable unfairness would result from a particular defect, that defect might well fall outside the terms of s 16(2). No such unfairness was demonstrated in relation to the charge under s 10(2). 45 Mason P agreed with Basten JA. Spigelman CJ dissented in Rockdale Beef. His Honour held that because the charge omitted an essential legal element of the offence the proceedings were not proceedings for 'an offence against the relevant Act and the Industrial Court accordingly had no jurisdiction to hear and determine the charge': Rockdale Beef at [34]. In Doja, however, the Chief Justice said at [27]-[28]: [27] In Rockdale Beef supra, Basten JA went on to conclude, at [125], that the "failure to allege an essential legal element of the offence" did not, in the circumstances of that case, "involve a fundamental issue going to the fairness of the prosecution". His Honour said that the complaint should be characterised as technical. Significantly, his Honour said that parts of the charge could be understood as referable to the omitted element. This approach is, in my opinion, also applicable to the indictment presently under consideration. [28] As Basten JA said at [130], it is not the case: "… that all the words of the statute must be used, nor that, where the specific provision is adequately identified, all the legal elements must be expressly identified. For example, some may be necessarily implied from what is described, for purposes of s 16(1)(b)." 46 McClellan CJ at CL in Doja referred, with approval, to what Basten JA said at [122]-[123] in Rockdale Beef and concluded in relation to the validity of the indictment in that case that: [130] In my opinion the indictment in the present case was not invalid or the proceedings a nullity. The indictment could have been amended during the course of the trial. The appellant did not contend otherwise. It follows that if the verdicts on counts 13 and 14 could not have been found without the jury being satisfied to the relevant standard that the Crown had proved "knowledge" or "reckless disregard" the verdicts will cure the defect in the indictments. As earlier stated, Grove J agreed in substance with McClellan CJ at CL. 47 What relevantly flows from Rockdale Beef and Doja is that the failure to properly plead the essential legal elements of an offence does not necessarily render an information or, in the present case an Application for Order, invalid. That is to say, it is not necessary that all the words of the statute must be used in describing the offence, or that, where the specific statutory provision is adequately identified, all the legal elements must be expressly identified. Some of the elements may be implied by virtue of s 16(1)(b). As Basten JA observed in Rockdale Beef at [132], 'whether a defect is of a kind that might not be covered by s 16(2)(a) must be judged by reference to the purpose of the statutory requirements not complied with and the likely effect of the non-compliance in relation to the purpose for which the notice is given.' The purpose of identifying the essential legal elements of an offence is to inform the court of the legal nature of the offence in order that the jurisdiction of the court is engaged to hear and determine the case: see Rockdale Beef at [109]. Whether the Applications for Order identify the essential elements of the offences 48 In the present proceedings we conclude that the Applications for Order adequately identify the specific statutory provision that it is alleged the defendant contravened and, as well, the nature of the offence that is alleged in the words of the relevant statutory provision, namely, s 8(1). We also conclude the requirements of r 217B are met. The Application for Order in IRC 1989/07 (the alleged s 8(1) breach) identifies: (a) the name and address of the person by whom the proceedings are brought : 'Inspector Nathan Hamilton, of the WorkCover Authority of New South Wales, 92-100 Donnison Street, Gosford'; (b) the capacity in which the prosecutor is taking the proceedings : 'an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter'; (c) the name and address of the person against whom the proceedings are brought : 'John Holland Pty Ltd [ACN 004 282 268] a corporation whose registered office is situated at John Holland Group Pty Ltd, 70 Trenerry Crescent, Abbotsford in the State of Victoria ("the defendant")'; (d) the Act and the section under which the defendant is alleged to have committed an offence : 's 8(1) of the Occupational Health and Safety Act 2000'; (e) the nature of the offence that is alleged : 'the defendant being an employer failed to ensure the health, safety and welfare at work of all its employees and in particular [named employees]' . Particular (b) then follows the wording of s 8(1)(a) in the first two lines and one word, namely, '[t]he defendant failed to ensure that the premises, controlled by the defendant where its employees worked were safe and without risks to health …'. Particular (c) substantially follows the wording of s 8(1)(c) in the first two lines, namely, '[t]he defendant failed to ensure that the systems of work were safe and without risk to health …'. 49 Similar identification of the relevant requirements was undertaken in the Application for Order in IRC 1990/07 (the alleged s 8(2) breach). 50 What are also required to be included in the Applications are the essential factual ingredients of time, place and manner of the offence: see Rockdale Beef at [109] and [110] per Basten JA and the reference therein to John L. The time is identified as 'from about 27 October 2005 to and including 2 November 2005'. The place is identified as 'in the MCAA including its intersection with MC5B of the Lane Cove Tunnel at Sydney in the State of New South Wales ("the premises")'. 51 The manner in which the offence was alleged to have occurred is addressed in that part of the Application that describes the particulars. The particulars were extensive. The risk was identified: the risk of being struck by falling rock and/or tunnel collapse. The risk was clearly described. 52 Next, the Application proceeds to describe how it was the defendant failed to ensure safety. To take but one example, it was alleged the defendant failed to ensure the premises were safe and without risks to health in that it failed to ensure the down drive of the MCAA including its intersection with MC5B had an adequate system of ground support installed in a timely manner to support the tunnel. The Application then described the omissions by the defendant that caused the premises to be unsafe and to put persons at risk. One of those omissions was the defendant's failure to ensure the effectiveness of the rock bolting. That failure was then particularised, for example, 'the defendant failed to ensure that rock bolts were tensioned in accordance with the rock bolt specification; … the defendant failed to measure or check the borehole diameter'. Approached on that basis it is clear what measure the defendant should have taken to avoid the risk: tension the rock bolts in accordance with the rock bolt specification; and, measure or check the borehole diameter. 53 The acts or omissions described in the Applications may be contrasted with those impugned in Kirk. The first two particulars of the s 15(1) charge were that the defendant failed to: i. provide or maintain systems of work that were safe and without risks to health in relation to the operation of the Polaris All Terrain Vehicle ('ATV'); ii. provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the Polaris All Terrain Vehicle ('ATV'); 54 Notwithstanding that no complaint was ever made by the defendants about the adequacy of the particulars, at [28] of the joint judgment in Kirk it was stated, for example: [28] ... The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. ... 55 The particulars that are the subject of consideration in the present proceedings are significantly more extensive than those in Kirk in describing how the defendant failed to ensure safety. The Applications do not, in terms, contain express statements as to what measures should have been taken to prevent the risk identified. That is to say, taking particular (c)(iii) in Matter No IRC 1989 of 2007 as an example, the Applications do not contain statements to the effect: c) The defendant should have ensured that the systems of work were safe and without risks to health, in particular: … iii) The defendant should have ensured that the construction crew had and maintained a safe excavation and support sequence when excavating the down drive of the MCAA including its intersection with MC5B, namely: 1. the defendant should have followed the design intent as expressed in the design drawings and construction sequence when excavating the down drive of MCAA including its intersection with MC5B; 2. the defendant should have advised the designers, Parsons Brinkerhoff Australia Pty Ltd, of the fact that the design intent as expressed in the design drawings and construction sequence was not being followed in the construction of the down drive of the MCAA including its intersection with MC5B; 3. the defendant should have obtained a new design and construction sequence for the construction of the down drive of the MCAA including its intersection with MC5B in circumstances where the design and construction sequence that had been provided was not followed. 56 Instead (citing particular (c)(iii) again as it actually appears in the application in 1989/07), the Applications identify the act or omission of the defendant in failing to ensure safety: c) The defendant failed to ensure that the systems of work were safe and without risks to health, in particular: … iii) The defendant failed to ensure that the construction crew had and maintained a safe excavation and support sequence when excavating the down drive of the MCAA including its intersection with MC5B, namely: 1. the defendant failed to follow the design intent as expressed in the design drawings and construction sequence when excavating the down drive of MCAA including its intersection with MC5B; 2. the defendant failed to advise the designers, Parsons Brinkerhoff Australia Pty Ltd, of the fact that the design intent as expressed in the design drawings and construction sequence was not being followed in the construction of the down drive of the MCAA including its intersection with MC5B; 3. the defendant failed to obtain a new design and construction sequence for the construction of the down drive of the MCAA including its intersection with MC5B in circumstances where the design and construction sequence that had been provided was not followed. 57 The Applications identify the risks. It is then apparent from the Applications what failures are alleged, and implicit are the measures the defendant should have taken to avoid the risk to safety. If there were any deficiency in the manner in which the particulars were expressed it would not render the charges invalid. Rather, it would be open to the trial judge to order an amendment or for further particulars to be provided or for the defendant to seek further and better particulars: Rockdale Beef at [126] per Basten JA referring to Stanton v Abernathy at 667, 671-672. Whether Kirk determined the acts or omissions are essential legal elements 58 The defendant's complaint, however, is that the acts or omissions of the defendant constitute the offences under ss 8(1) and 8(2) and, therefore, constitute an essential legal element of the offences and must be pleaded as such in the 'Statement of Charge'. The defendant submitted that the prosecutor's failure to describe the acts or omissions in the 'Statement of Charge' meant that the offences were not offences known to the law. It was this submission that led the prosecutor to suggest that what the defendant was seeking to do was draw an imaginary line in the Applications, above which had to be the pleadings regarding the essential legal elements and below which could be the essential factual ingredients and any particulars. 59 It is unquestionably the case arising from Kirk that an Application for Order must plead the acts or omissions of the defendant that are alleged to give rise to the risk to health and safety: see Kirk at [14], [19]. However, we are unable to find any support in the Kirk judgment for the proposition that the acts or omissions are to be regarded as essential legal elements and, therefore, necessarily pleaded as such. The proposition contended for by the defendant also appears to be in conflict with the statement of the majority in John L (at 519) that the prosecutor was to provide the accused with the 'substance of the charge which he is called upon to meet'. The majority accepted that Mahoney JA had correctly pointed out in De Romanis that 'there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence'. This passage strongly suggests that, for a very long time, the law has not required the type of rigidity and technicality implicit in the defendant's proposition. 60 Kirk refers to 'statement of offence' or 'statement of an offence' or 'statement of the offence' in referring to the charges under ss 15(1) and 16(1): see [14], [15], [22], [25], [26], [28]. 'Statement of offence' does not appear to be a term of art, but rather one adopted in the joint judgment to describe the Applications for Order. At [14] the joint judgment stated: [14] A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. ... (emphasis added) 61 At [15] the joint judgment stated: [15] The necessity for a statement of offence to identify the act or omission of the employer said to constitute a contravention of s 15 or s 16 is even more apparent when regard is had to the defences which were available to employers in proceedings for offences against the provisions. ... (emphasis added) 62 In [22], after referring to the content of the Application for Order in relation to the s 15(1) offence and following reference to the particulars, it was said: [22] ... The statement of the offences concluded with the allegation that, as a result of the Kirk company's failures, its employees, in particular Mr Palmer, were "placed at risk of injury" and that Mr Palmer had suffered fatal injuries. (emphasis added) 63 At [25] of the joint judgment it is apparent that the High Court was countenancing a statement of offence that included particulars: [25] The statement of the offence against s 15(1) did little more than follow the words of that sub-section. The first three particulars provided of the offence simply combined the words of s 15(2)(a), (c) and (f) with a reference to the ATV. ... (emphasis added) 64 At [26]: [26] ... The common law requirement is that an information, or an application containing a statement of offences , "must at the least condescend to identifying the essential factual ingredients of the actual offence". ... (emphasis added) 65 At [28]: [28] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. ... (emphasis added) 66 It seems, therefore, that the joint judgment in Kirk was not intending that a 'statement of offence' was constituted solely by a statement of the essential legal elements, but rather such a statement was constituted by a description of the legal nature of the offence, the essential factual ingredients and any other particulars to better inform the defendant of the charge it has to meet. In other words, all these matters together constituted a valid information or Application for Order. 67 On the above analysis of the joint judgment we do not consider the acts or omissions are to be regarded as essential legal elements. That conclusion in no way diminishes the requirements for constituting a proper charge as laid down in the joint judgment. What prompted the criticisms in Kirk was that the charge did not describe the 'particular act, matter or thing alleged as the foundation of the charge': see [26]. In this respect, reference was made to John L. In that case, the informant had alleged an offence using the words of the relevant statutory provision (s 32(1) of the Consumer Protection Act 1969 (NSW)) and had particularised the alleged offence. However, whilst the offence involved making a statement that was false or misleading in a 'material particular' the informant had failed to identify the 'material particular' in which the published statement was alleged to be false or misleading. It was held that the information failed to identify: [A]n essential factual ingredient of the actual offence, namely, the "material particular" in which the statement, which the appellant was alleged to have caused to be published, was false or misleading. That failure was not a merely technical one. It was fundamental. ... (emphasis added) 68 In finding that the acts or omissions had not been adequately described in the Applications for Order, it is reasonably apparent the High Court in Kirk was adopting the approach in John L. 69 It is also important to understand that Kirk did not find the charges were invalid by reasons of a failure to identify the essential legal elements of the charges or all of the essential factual ingredients. What had been provided in the Application in that case was considered by the High Court to be insufficient for the defendant to be able to rely on a defence under s 53 of the 1983 Act. Indeed, in the joint judgment at [30] it was said 'the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges.' That is a further indication that the High Court viewed the flaw in the charges as being in the nature of inadequate particulars, albeit particulars that were essential. Whether Applications for Order are defective 70 In any event, as found in Rockdale Beef, we think it matters not at all whether the acts or omissions creating the risk are to be regarded as essential legal elements or essential factual ingredients. Both are required to be pleaded. If they are not pleaded the question arises whether that constitutes a defect in the charge and, if so, whether the resulting defect is capable of being remedied or not. As Basten JA observed in Rockdale Beef, whether the defect is capable of being remedied 'should be considered on a principled basis, and not by use of labels, seeking to distinguish between "essential legal elements" and "essential factual particulars" ': at [122]. We take this observation to refer to the necessity of ascertaining the substance of the Application for Order and in so doing, considering whether or not the alleged breach is clearly set out together with the identification of the acts or omissions alleged of the defendant. This approach is not an exercise involving nitpicking technicality but simply addresses the need to ensure that the defendant is apprised of the breach alleged under the statute and the acts and omissions by which that breach was committed. 71 It is clear from Rockdale Beef that if there is a defect in the pleading of the charge such that an essential legal element is not adequately expressed, the element may be ascertainable by implication from the Application for Order. In which case, there will be no breach of any procedural fairness requirement that the defendant be properly informed of the charge it has to meet or any breach of the requirement that the court is sufficiently apprised of the legal nature of the offence. In Rockdale Beef, the so-called error lay in the failure to plead that the conduct in question took place in circumstances where the relevant plant was controlled in 'the course of a trade, business or other undertaking', being a failure to allege an essential legal element of the offence. Nevertheless, as Basten JA held, the complaint did not involve a fundamental issue, going to the fairness of the prosecution, and should better be described as 'a complaint "at the level of technical validity" '. His Honour stated (at [125]) that: [125] ... Because the charge stated that the plant was "used by people at work" and asserted that the plant was in the control of the defendant, there is little substance in the complaint that it was not alleged to be controlled in the course of a trade, business or other undertaking. Further, the identification of the plant as a "drag chain conveyor" also gave rise to the inference that it was machinery of a kind used in the course of a trade, business or other undertaking. The reference to the 'drag chain conveyor' was contained in the particulars of the charge. 72 If it be accepted, as it must, that the acts or omissions of the defendant that created the risk to health and safety were essential elements of the charge, whether essential legal elements or essential factual ingredients, those acts or omissions are identified in that part of the Applications dealing with particulars. The fact that the acts or omissions were not pleaded in a particular place or in a particular form in the Applications for Order does not appear to us to amount to a fundamental defect such that the charges should be regarded as a nullity. Even if it could be contended that the acts or omissions were essential legal elements and were required to be identified in the Applications in juxtaposition with other legal elements, at best, in our opinion, it may be said the Applications contained a defect in form, which is unobjectionable (s 16(2) of the Criminal Procedure Act) or would be regarded as an irregularity (s 170 of the Industrial Relations Act). 73 In coming to this view we have had regard to a number of the authorities relied upon in the proceedings. In John L, the information was found to be incurably defective by reason of its failure to identify the 'material particular' in which an alleged statement was said to be false or misleading. As the proceedings had been commenced by way of information and because there was no statutory provision equivalent to s 6 of the Summary Jurisdiction Act available to cure the defect, that issue did not arise for consideration. The court acknowledged, however, that an amendment was possible if a relevant statutory provision so allowed. In the present case both s 16 of the Criminal Procedure Act and s 170 of the Industrial Relations Act are such statutory provisions. Thus, the majority judgment does not assist in deciding whether an information was void if it did not contain full particulars. Brennan J took a different view and found it necessary to consider the operation of s 6 in relation to the defective information, holding it was a conclusive answer to the appellant's argument. 74 In Stanton v Abernathy the information was defective for duplicity and lack of particulars but it was held that it was not incumbent upon a magistrate in committal proceedings to dismiss it. The magistrate had an implied power to direct the furnishing of particulars and require the prosecution to elect to charge the appellant with a single false statement to the exclusion of any others or amend the information and lay one charge in respect of each alleged false statement. 75 In Doja an indictment was found to be defective because in respect of two counts it failed to expressly state the mental element of the offence under s 178BB of the Crimes Act 1900. The defect was found not to be such as to render the indictment invalid. It was held the averment could be 'necessarily implied' for purposes of s 16(1)(b) of the Criminal Procedure Act. See also R v McVitie [1960] 2 QB 483. 76 In Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83, summary proceedings had been instituted in a Local Court by the issue of a court attendance notice. The notice identified the section of the Crimes Act under which the charge was laid, described the charge as 'assault occasioning actual bodily harm' and stated that the offence had occurred between the hours of 8am and 5.30pm on a particular day 'at Potts Point'. It was further alleged that the defendant 'did assault [the identified victim] thereby occasioning actual bodily harm to her'. The defendant in those proceedings challenged the validity of his conviction on the basis that the notice was defective and invalid because it failed to comply with ss 172 and 175 of the Criminal Procedure Act, by failing to 'briefly state the particulars of the alleged offence' and in failing to follow 'the prescribed form in this regard'. 77 The Court dismissed the application. At [83], after reviewing the authorities, Campbell JA, with whom Mason P and Tobias JA agreed, stated that a failure to supply particulars in an information did not invalidate any proceedings commenced by that information. Campbell JA noted that the deficiencies in a court attendance notice could be 'so gross that as a matter of construction s 16(2)(a) would be read as not applying to them' (at [48]) but that was not the case in respect of the notice before the Court. 78 It was held in Janceski that an indictment was invalid and the trial and conviction were nullities. The defect in the indictment was the absence of an authority to sign (see also R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263). In Lodhi v R [2006] NSWCCA 121, an indictment alleging certain terrorist offences under the Criminal Code Act 1995 (Cth) was quashed because the statement of each of the charges failed to allege all the ingredients of the offence. The Court considered s 11 of the Criminal Procedure Act (but not s 16). However, it was held that more was required and that the statement of the offence had to include 'the essential factual ingredients' of the offence. The matter was remitted to the trial judge. The Crown was required to replead the charges in the indictment. For completeness, it should be noted that in Johnson v Miller the prosecutor refused to amend the charge and so no issue arose regarding the power to amend. 79 It is not easy to reconcile the various authorities, but it is reasonable to suggest that s 16(2) of the Criminal Procedure Act (and/or s 170 of the Industrial Relations Act) may apply to save a charge even if there was a failure to state all the essential ingredients of the offence, provided that there is no uncertainty or ambiguity in the charge, or where certain ingredients can be implied from what is stated in the charge. However, there may be situations where the charge is 'so gross', for example where it is not apparent what offence is being alleged, where s 16(2) cannot be relied upon. As earlier observed, arguably s 170 goes further than s 16 but it is not necessary for the purposes of these proceedings to explore the full extent of the reach of that provision. 80 In the present proceedings, given all the essential elements of the offence are identified in the Applications for Order, the proposition that the Applications are a nullity cannot be sustained. 81 The defendant relied on the decision of Fisher J in Videon v Barry Burroughs Pty Ltd (1981) 53 FLR 425 at 444 for the proposition that there was a clear dichotomy between a statement of offence and particulars in an information. The point sought to be made by the defendant was that the elements of the offence had to be clearly differentiated from the particulars of the charge: [T]here has always been a clear dichotomy between an offence as stated in an information and summons and the particulars of the relevant conduct. Such dichotomy is in my view determinative of this issue. Reasonable information is required of the acts or omissions constituting that conduct, because, in the words of Gibbs J, "the defendant to a proceeding" is entitled to be "fairly apprised of the case he has to meet …" ( Total Australia Ltd v Trade Practices Commission (1975) 50 ALJR 333). It is however the offence with which he is prosecuted which has to be clearly and unequivocally identified, both in the consent and the summons. There is no obligation under the Act for the Minister to identify the conduct charged, and there is no requirement under the Act for particulars of conduct to be supplied. Such requirement was initially imposed by the regulations under the Conciliation and Arbitration Act 1904 (Cth) and currently is set out in the rules of this Court (O 49, r 2). Both the regulations and the rules clearly differentiate between the offence and the particulars of conduct. The distinction between the offence charged and the conduct which may or may not amount to such an offence is the key to this problem. The charge must be sufficiently and unequivocably (sic) identified in the information, whereas particulars and further and better particulars may be given from time to time to better identify and distinguish the conduct from other transactions and occurrences (see per Dixon J in Johnson v Miller (1937) 59 CLR 467 at 490). 82 Videon concerned whether the Minister had consented to the prosecution of particular offences, in view of the subsequent amendment of the particulars of the conduct charged in the information and summons. The defendants challenged the amended charge as constituting new offences not authorised by the Minister whose authority had been given in wider terms. For the purposes of dealing with that issue, Fisher J focused on the charge authorised by the Minister, noting that there was no requirement under the Trade Practices Act 1974 (Cth) to identify the conduct and there was no requirement under the Act for particulars of conduct to be supplied. It was in those circumstances that his Honour drew a distinction between the charge and the particulars and that distinction was required by the relevant rules. The Minister's authority to prosecute was not affected by the amendments proposed to the particulars and were granted by his Honour. In was in this context that his Honour made the statement referred to above at 444, relied upon in quite different circumstances by the defendant in this case. The defendant's submission overlooks the fact that his Honour relied upon the provisions of the rule making a clear distinction and requiring the charge to be separately identified from the particulars, whereas no such requirement is to be found in r 217B. Videon is, therefore, not authority for a general proposition that the essential elements of a charge are to be identified separately from the particulars in an information, just that the charge must be sufficiently and unequivocally identified. We note that Fisher J did not regard the defendant's conduct (its acts or omissions that constituted the false or misleading statement concerning the land) in that case as constituting an element of the offence. Section 31 of the OHS Act 2000 83 It was submitted for the defendant that it was not sufficient to plead, as the prosecutor had, the manner of the commission of the offence by a combination of particulars. The defendant submitted the prosecutor must, in respect of each alleged contravention of s 8, identify the particular measure that should have been taken by the defendant. Further, that the prosecutor misread the operation of s 31(1) of the OHS Act 2000: That section does not permit the one act or omission to constitute several offences. The Prosecutor has not in the charge identified that any act or omission of the Defendant contravened s 8. That is, he has not charged a single contravention, let alone several contraventions, and the provisions of s 31(1) do not operate. If the Prosecutor had wished to rely upon s.31 in the present case, in order to plead that a series of acts or omissions constitute a single offence, then it would have been necessary for the charge to disclose the "factual circumstances" (which are said to be singular) in respect of each impugned act or omission. Failure to plead such factual circumstances and their singularity means that the Court is not in a position to determine its jurisdiction to hear the charge, as the charge is, on its face, duplicitous and in the absence of a provision such as s.31, potentially a nullity. 84 Section 31 of the OHS Act 2000 is in the following terms: 31 Multiple contraventions of general duties under Division 1 (1) More than one contravention of a provision of Division 1 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 2 or more of those provisions to be charged as a single offence. (3) A single penalty only may be imposed in respect of more than one contravention of any such provision that is charged as a single offence. 85 Sections 8(1) and 8(2) are to be found in Division 1. Section 12 provides that a person who contravenes, whether by act or omission, a provision of Division 1 is guilty of an offence against that provision. A contravention, therefore, of a general duty under ss 8(1) or 8(2), is constituted by an act or omission. More than one contravention, that is multiple acts or omissions, that arise out of the same factual circumstances may be charged as a single offence. 86 We do not understand s 31 to require that the factual circumstances of each act or omission must be separately pleaded. The section requires that the multiple acts or omissions constituting more than one contravention of a provision in Division 1, charged as a single offence, arise out of the same factual circumstances. That is what was pleaded in this case. 87 The defendant submitted that the particulars, in alleging multiple omissions in relation to multiple duties, disclosed that what, in fact, the prosecutor alleged was not an act or omission, but rather a failure to achieve a 'state of affairs'. The reference to 'state of affairs' seems to have derived from the decision of Fullagar J in Chugg v Pacific Dunlop Ltd [1988] VR 411 at 415. In that case his Honour was dealing with the Occupational Health and Safety Act 1985 (Vic). Section 21(1) provided that '[a]n employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health.' Section 21(2) provided that: 'Without in any way limiting the generality of subs(1), an employer contravenes that sub-section if the employer fails' to do a number of things enumerated in paras. (a) to (e) of subs(2). Section 47 provided that any person who contravened any provision of the Act shall be guilty of an offence. The information alleged that the defendant failed to provide and maintain a safe working environment: The information of Peter Richard Chugg of Melbourne in the State of Victoria, an Inspector appointed pursuant to the Occupational Health and Safety Act 1985, who says that the said defendant on the second day of November 1985 at 68 Cross Street Footscray was pursuant to s47 of the Occupational Health and Safety Act guilty of an offence against that Act in that being an employer it did fail to provide and maintain as far as was practicable for employees a working environment that was safe and without risks to health when it did fail to provide and maintain plant and systems of work that were so far as was practicable safe and without risks to health, and when it did fail to provide such information, instruction and supervision to employees as was necessary to enable the employees to perform their work in a manner that was safe and without risks to health, in contravention of the provisions of s21 of the Occupational Health and Safety Act 1985. Particulars of the charge were then provided in the information. 88 It was contended by the informant that s 21 of the Act, when read with s 47, disclosed only one criminal offence, namely, that of failing to 'provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health'. It was submitted that the effect of s 21(2) was that an employer, who did any of those things - that is to say, commits any of the failures - set out in the five lettered paragraphs, thereby contravened s 21(1). The only criminal offence, therefore, committed by such an employer, was an offence against s 21(1). 89 Fullagar J did not accept that submission. At 415 his Honour held: In the present case I consider that the major issue is whether subs(1) and subs(2) of s21, in combination with s47(1), create on the one hand one continuing offence of allowing to subsist a particular proscribed environment, or create on the other hand a large number of offences each consisting of some identifiable act or omission which, in all the circumstances, constitutes a failure to comply with a general duty of care laid down by s21(1). I have come to the conclusion that the latter alternative is correct, and that the effect of s21(2) is to ensure that, if the acts or omissions charged and proven establish one or more of the several general failures set out in the lettered paragraphs of subs(2), then that, without more, automatically establishes a failure to comply with the general duty laid down by subs(1) and thereby operates to constitute the identifiable act or omission as a criminal offence by force of s47. But it is each particular relevant act or omission itself that quantifies and constitutes the offence, not the failure to maintain either the continuing state of affairs indicated by s21(1) or a continuing state of affairs indicated by a paragraph of subs(2). 90 Fullagar J held that the information was bad for duplicity and was not saved by a Lord Jervis provision, s 157 of the Magistrates (Summary Proceedings) Act 1975 (Vic). Chugg was approved by the Victorian Court of Appeal in R v Australian Char Pty Ltd [1999] 3 VR 834. 91 We note in passing that in Diemould Tooling Services Pty Ltd v Oaten; Santos Limited v Markos [2008] SASC 197; (2008) 101 SASR 339; (2008) 174 IR 80, Doyle CJ (with whom White J agreed) disagreed with the approach of Fullagar J. Diemould related to an alleged breach of s 19(1) of the Occupational Health Safety and Welfare Act 1986 (SA), which obligated an employer to ensure that its employee was, while at work, safe from injury and risks to health. Section 19 provided: 19—Duties of employers (1) An employer must, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular— (a) must provide and maintain so far as is reasonably practicable— (i) a safe working environment; (ii) safe systems of work; (iii) plant and substances in a safe condition; and (b) must provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and (c) must provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health. 92 It was alleged by the informant that the section was contravened in multiple respects. The information was attacked for duplicity. At [21], [23] and [31]-[32] Doyle CJ stated: [21] A contravention of the statutory command in s 19(1) is proved only by proving that, at a particular time and at a particular place of work, and in relation to an employee or employees, the employer failed to ensure so far as reasonably practicable that an employee was, or employees were, safe from injury and risks to health. … [23] For example, a failure to provide plant in safe condition may be attributable to the state of the plant, and to a failure to provide information and instruction and training about the use of the plant. If all those circumstances taken together produce the consequence that on an identified occasion the statutory command is contravened, then that is a single offence. Obviously enough, this involves a consideration of the facts. … [31] A contravention of s 19(1) of the Act can be described as constituted by a state of affairs rather than individual acts or omissions. That reflects the fact that the contravention of the statutory command is the failure to ensure, so far as is reasonably practicable, safety from injury and risks to health. [32] But a contravention of s 19(1) will be the result of an act or omission by an employer, that gives rise to a contravention of the section at an identified place (where an employee is at work) and in relation to an employee or employees who must be shown to be affected by the contravention, because of the failure to ensure so far as is reasonably practicable that the employee is or employees are safe from injury and risks to health. The employee or employees might, depending on the circumstances, be an identified person or persons. The employee or employees might be performing a certain kind of work or using a particular implement, and so might be a category or group described in that way. The employee or employees in question might be an employee or employees at a particular place, and designated in that way. Which of these is appropriate will depend on how the charge is framed. 93 In Santos Limited v Markos; Diemould Tooling Services Pty Ltd v Oaten [2008] HCATrans 372 (13 November 2008) it was said that '[w]e are not persuaded that the decision of the Full Court of the Supreme Court of South Australia in these matters is attended by sufficient doubt to warrant the grant of leave. Special leave will be refused.' 94 Regardless of the different approaches taken in Chugg and Diemould, the defect found in Chugg was duplicity. That is, the information was held to contain more than one offence and that is the context in which the decision in Chugg must be considered. In the opinion of Fullagar J, each of the alleged failures under s 21(2) of the Occupational Health and Safety Act 1985 (Vic) should have been charged separately and not in the one information. His Honour held, contrary to the contentions of the informant, that the failure to maintain a safe working environment (s 21(1)) was not the offence. The offence was an act or omission establishing one or more of the general failures set out in s 21(2), which if proven 'automatically establishes a failure to comply with the duty laid down by sub-s (1) and thereby operates to constitute the identifiable act or omission as a criminal offence by force of s 47.' 95 We note that s 6 of the Magistrates (Summary Proceedings) Act 1975 (Vic) provided that: (1) Charges for indictable offences … may be joined in the same information if the charges are founded on the same facts or form or are part of a series of offences of the same or similar character but any charge so joined may be dealt with separately. (2) Charges for offences punishable on summary conviction may be joined in the same information but any charge so joined shall, if the defendant so requests, be dealt with separately. (3) Where two or more offences are charged in an information pursuant to sub-section (1) or sub-section (2) the charge with respect to each offence shall be set out in a separate numbered paragraph. 96 Although it was permissible to have in one information two or more charges if the requirements of s 6 were met, Fullagar J held the requirements were not met (namely, s 6(3)) and the information suffered from duplicity: at 417. 97 It will not be a duplicitous charge under the OHS Act 2000 where more than one contravention of a provision of Division 1 by a person that arise out of the same factual circumstances is charged as a single offence or as separate offences: s 31. In our opinion, the Applications for Order meet the requirements of s 31. 98 Secondly, the defendant in the present proceedings may only succeed on its 'state of affairs' proposition if it be accepted there was a failure to plead the acts or omissions creating the risk to safety as essential legal elements. In other words, the defendant contended that the pleading is one relating to a state of affairs, namely, a failure to ensure the safety of employees at work, but that the law knows no such offence and, therefore, it is a nullity. What must be pleaded as essential legal elements, according to the defendant, are the particular measures (either by act or omission) which, if they had been taken by the defendant, would have prevented the identified risk eventuating. 99 For the reasons given in this judgment, we have concluded the defendant is wrong in the propositions it has contended for and that reliance on Chugg is of no assistance to the defendant. We note that Chugg was considered in Stanton v Abernathy and as we earlier observed in the latter case whilst the information was defective for duplicity and lack of particulars, it was held that it was not incumbent upon a magistrate in committal proceedings to dismiss it. Summary of conclusions 100 A summary of our conclusions in this matter may best be provided in the context of answers to the questions of law. 101 Question (a) is fundamentally a question as to whether the requirements of the Industrial Relations Commission Rules have been met, in particular r 217B. That is answered in the affirmative: see [37] and [48] of this judgment. In particular, the Applications for Order identify offences known to the law, namely, contravention of ss 8(1) and 8(2), and identify the nature of the offences, that being the essential legal elements. In that respect, we have concluded that if an Application describes an offence under ss 8(1) or 8(2) of the OHS Act 2000 in the words of the provision, the Application has met the requirement of identifying the legal nature of the offence, that is the essential legal elements, subject to the proviso that, in adopting the words of the statute, it admits of no uncertainty or ambiguity (Rockdale Beef at [131]) or the deficiencies in the Application are not 'so gross that as a matter of construction s 16(2)(a) would be read as not applying to them' (Knaggs at [48]). In the present case there could be no misapprehension as to the legal nature of the offences, given the descriptions in the Applications referred to above at [48]. 102 Question (a) does refer to a number of other statutory provisions, but these are merely machinery provisions and require no elaboration. 103 Question (b) asks whether the Applications for Order contain the essential legal elements of the charges. We have answered that in the affirmative. The essential legal elements of the charge under s 8(1) are: 1. The defendant was an employer at the time of the alleged breach . The Application for Order pleads the defendant as 'being an employer'. 2. There was a risk to the health, safety or welfare of the defendant's employees . The Application for Order pleads that the defendant failed to ensure the health, safety and welfare at work of all its employees and then particularises the employees. Particular (a) specifies that '[t]here was a risk …'. The expression 'risk to health' is referred to in both particulars (b) and (c). 3. There was a causal nexus between the defendant's alleged breach and the risk to employees' health, safety or welfare . The Application for Order pleads 'FAILED TO ensure the health, safety and welfare … of all its employees … contrary to s 8(1) of the Occupational Health and Safety Act 2000'. The particular ways in which the defendant was alleged to have failed to ensure the health, safety and welfare of employees, constitute the essential factual ingredients of the charge and are set out in the particulars. 4. The risk was to employees at work . The place of the risk is pleaded in the Application for Order as 'at work' and is confirmed in particular (b) as 'the premises, controlled by the defendant where its employees worked'. The premises are defined and specified (see [50]). 104 The essential legal elements of the charge under s 8(2) are: 1. The defendant was an employer . The Application for Order pleads the defendant as 'being an employer'. 2. There were persons not employees of the defendant exposed to a risk to their health and safety . The Application for Order pleads 'FAILED TO ensure that persons other than its employees … were not exposed to risks to their health or safety … contrary to s 8(2) of the Occupational Health and Safety Act 2000'. The Application for Order in particulars (a) and (b) pleads '[t]here was a risk …'. The expression 'risk to health' is then referred to in both particulars (c) and (d). 3. The risk arose from the conduct of the undertaking of the defendant . The Application for Order pleads 'FAILED TO ensure that persons other than its employees … were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking … contrary to s 8(2) of the Occupational Health and Safety Act 2000'. The particular ways in which the defendant was alleged to have failed to ensure the health, safety and welfare of non-employees, constitute the essential factual ingredients of the charge and are set out in the particulars. 4. The exposure to risk was at the defendant's place of work . The Application for Order pleads the place of risk as 'while they were at the defendant's place of work' and is confirmed in particular (c) as 'the premises, controlled by the defendant where its employees worked'. 105 In light of the answer to Question (b), it is unnecessary to answer Questions (c) and (d). 106 Question (e) asks whether the Applications for Order disclose the essential factual ingredients of the offences charged under ss 8(1) and 8(2) of the OHS Act 2000. We have answered that question in the affirmative: see [50]-[52] of this judgment. 107 In light of the answer to Question (e), it is unnecessary to answer Question (f). Costs of motion 108 It was submitted for the defendant that the prosecutor should pay the defendant's costs in both matters of and incidental to the initial purported reference of questions of law to the Full Court under s 5AE of the Criminal Appeal Act because: a it was his insistence on the immediate and informal referral (without sufficient notice or timely consideration) of his formulation of questions of law which resulted in the waste of several days Court time; b. his insistence, wrongly, on engaging in that process resulted in there being nothing before the Full Court on the first purported return date; c. those costs were entirely thrown away; and d. contrary to his assertion to the Full Court, the Defendant had in fact drawn the deficiencies in the questions and process to his attention at an early opportunity. 109 The prosecutor submitted it was not appropriate to deal with costs at this stage of proceedings especially in the absence of the Full Bench's reasons or answers to the questions that have been referred. 110 The parties now have the benefit of our decision in these matters. The defendant shall have seven days to file supplementary submissions on costs with the prosecutor having a further seven days in which to reply. Unless a party indicates a desire to be heard orally on costs, the question will be determined on the papers. Answers to questions of law 111 In accordance with our reasons, we answer the questions of law posed by Backman J in Matter No IRC 1989 of 2007 as follows: a. Yes. b. Yes. c. Does not arise. d. Does not arise. e. Yes. f. Does not arise. 112 We answer the questions of law posed by Backman J in Matter No IRC 1990 of 2007 as follows: a. Yes. b. Yes. c. Does not arise. d. Does not arise. e. Yes. f. Does not arise. ____________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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