Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123

Industrial Court of New South Wales

CITATION: Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123

PROSECUTOR: John Joseph Cahill PARTIES: DEFENDANT: State of New South Wales (Department of Community Services)

FILE NUMBER(S): IRC 2387 of 2006

CORAM: Boland J President

Occupational health and safety - Prosecution by Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("PSA") of State of New South Wales in its emanation as the Department of Community Services ("DOCS") - Section 8(1) of Occupational Health and Safety Act 2000 - Not guilty plea - Allegations that employees of the defendant placed at risk to their health and safety - Stabbing incident - Physical and psychological injuries - Allegations that defendant failed to ensure safety of employees - Consideration of elements of the offence - Consideration of statutory defences under s 28 of Occupational Health and Safety Act 2000 - Guilty finding - Defences not made out. CATCHWORDS: Statutory interpretation - Sections 8(1) and 12 of Occupational Health and Safety Act 2000 - Whether offence was an absolute liability offence - Consideration of the tests in He Kaw Teh v The Queen (1985) 157 CLR 523 as to which category the statutory offence fell into - Regulatory offences - Meaning of word "ensure" - History of legislation - Legislative intention - Consideration of defence of honest and reasonable mistake of fact if wrong about absolute nature of offence - Held that offence under s 8(1) of the Occupational Health and Safety Act 2000 is an absolute liability offence.