District Court New South Wales Medium Neutral Citation: Inspector Brock v Empire Waste Pty Ltd [2013] NSWDC 38 Hearing dates: 08/04/2013 Decision date: 12 April 2013 Jurisdiction: Criminal Before: Curtis, J Decision: I find that clauses 2 and 3 of Schedule 18B of the Work Health and Safety Regulation 2011 are valiad regulations enabled by clause 1 of Schedule 4 of the Work Health and Safety Act 2011 Catchwords: District Court - Criminal jurisdiction - workplace prosecutation - occupational health and safety - Notice of Motion challenging District Court's jurisdiction - whether proceedings defective in failing to comply with the District Court Rules - whether Executive has power to invest jurisdiction in the District Court and the Local Court Legislation Cited: Criminal Procedure Act 1986 Occupational Health and Safety Act 2000 District Court Rules 1973 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 Work Health and Safety Leglislation Amendment Act 2011 Work Health and Safety (Savings and Transitional) Regulation 2011 Interpretation Act 1987 Cases Cited: McConnell Dowell Constructions (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367 Doja v R [2009] NSWCCA 303 Jago v District Court of New South Wales (1989) 168 CLR 23 Ex parte McGuigan (1923) WN (NSW) 129 Wilcocks v Anderson 124 CLR 293 The Retirement Benifits Fund Board v Hingston [1997] TASSC 66 Australian Meat Industry Employees Union v Hamberger [2000] FCA 1197 Texts Cited: New South Wales Hansard, 19 October 2011 Category: Procedural and other rulings Parties: Inspector Steven Brock (Prosecutor) Empire Waste Pty Ltd (Defendant) Representation: J V Agius, SC with B G Docking appeared for the Prosecutor G W McGrath, SC with S A Adair appeared for the Defendant Workcover Authority of New South Wales (Prosecutor) Eastern Commercial Lawyers (Defendnant) File Number(s): 2012/341785 RULING Introduction 1On 1 November 2012 the prosecutor, pursuant to s246 of the Criminal Procedure Act 1986, applied for an order that Empire Waste Proprietary Limited (the defendant) appear before the Court to answer a charge that on 20 December 2010, contrary to s8(1) of the Occupational Health and Safety Act 2000 (OHS Act) it failed to ensure the health and safety and welfare of its employee, Thomas Hill. 2In response to that application, the court ordered that the defendant appear on 14 December 2012 to answer that charge. On 15 November 2012 the defendant filed a Notice of Appearance. 3By Notice of Motion filed 11 February 2013 the defendant seeks orders that the order made by the court, or in the alternative, the proceedings, be quashed, permanently stayed or dismissed upon the following grounds: (a) That the District Court has no jurisdiction to deal with proceedings for offences against the Occupational Health and Safety Act 2000. (b) That if the court does have jurisdiction, the Application to Commence Proceedings was defective in failing to comply with Part 53 rule 26 of the District Court Rules 1973 because the statement of facts, purportedly in compliance with the rule, included extraneous matters of fact, mixed law and fact, conclusion, comment and opinion. (c) That, if the Application to Commence Proceedings was not defective for want of compliance with the rule, the court has, and should exercise, a discretion to grant the relief claimed, because the statement of facts has irreparably prejudiced the defendant. 4It is convenient first to address grounds (b) and (c) because they are easily dismissed. Failing to Comply with Part 53 Rule 26 of the District Court Rules 1973 5The proceedings are before the court pursuant to s246 of the Criminal Procedure Act 1986. This section relevantly provides: 246 Orders for appearance or apprehension of accused persons (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) (2) The application must be in accordance with the rules. 6Part 53 Rule 26 of the District Court Rules 1973 provides: 53.26 Commencement of proceedings (1) Proceedings under section 246 must be commenced in the Court by an application in the approved form for the issue of a summons or for the issue of a warrant for apprehension. (2) (3) A statement of facts in respect of the offence signed by the prosecutor applying for an order under section 246 is to be lodged with the application. (4) 7The statement of facts lodged with this application contains 41 paragraphs spread over eight pages. The defendant, conceding that the Statement of Facts alleges all the necessary ingredients of the offence, complains that the statement additionally contains arguments and conclusions, and allegations of fact that are irrelevant and prejudicial. I accept that this is so. 8Although the Application to Commence Proceedings must be in an approved form, the content of the Statement of Facts required by rule 26(3) is not governed by any rule or practice note. The expression "statement of facts" does not appear either in the District Court Act or otherwise in Part 53. 9It is however implicit in rule 26, and consistent with s246(3) of the Criminal Procedure Act permitting an order to be made in the absence of a defendant, that the purpose of the Statement of Facts is to enable the court to determine whether it should use its coercive powers to order a person to appear to answer a charge (See McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367). 10This purpose is different to the purposes and functions of an indictment or information in the administration of criminal justice identified by Spigelman CJ in Doja v R (2009) NSWCCA 303 as: (i) Informing the court of the precise identity of the offence with which it is required to deal. (ii) Providing the accused with the substance of the charge which he or she is called upon to meet, including identification of the essential factual ingredients. (iii) Enabling the court to ensure that only relevant evidence is admitted and to properly instruct the jury on the relevant law. (iv) Determining the availability of a plea of autrefois acquit and autrefois convict. (v) Investing the trial court with jurisdiction to hear and determine the prosecution. 11The Statement of Facts in this case alleges sufficient matters to found jurisdiction. It satisfies rule 26(3). I have no power to set aside the order that the defendant appear to answer the charge. Prejudice 12Although I have power to stay the proceedings, this power may only be exercised in circumstances where the defendant is unable to receive a fair trial. In that regard, Gaudron J in Jago v District Court of New South Wales (1989) 168 CLR 23 at 77 said: 18. Another feature attending criminal proceedings and relevant to the grant of a permanent stay thereof is that a trial judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which may be exercised in the course of a trial, including the power to reject evidence which is technically admissible but which would operate unfairly against the accused. The exercise of the power to reject evidence, either alone or in combination with a trial judge's other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. The existence and availability of these powers, when considered in the light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay. 13The Defendant has not established that the Statement of Facts has caused him irremediable prejudice in obtaining a fair trial. Jurisdiction History Of the Legislation 14Before the commencement of the Work Health and Safety Act 2011 (WHS Act) the District Court did not have jurisdiction to deal with prosecutions for offences against the OHS Act. That jurisdiction was vested by s105 of the OHS Act in the Local Court and the Industrial Relations Commission in Court Session. 15The WHS Act received assent on 7 June 2011 and commenced on 1 January 2012. 16Section 229B of this Act vested jurisdiction for offences against the Act in the Local Court, and the District Court in its summary jurisdiction. 17Section 276C repealed the OHS Act, and with it s105. Clause 7 of Schedule 4 of the WHS Act made provision for the institution of proceedings for offences against the OHS Act brought after the repeal of that Act. 18The schedule relevantly provided: Schedule 4 Savings, transitional and other provisions Part 1 General 1 Regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts: this Act 7 Criminal and other proceedings for offences under OHS Act (1) Part 13 (Legal proceedings) [which part includes s229 vesting jurisdiction in the Local Court in the District Court] extends (subject to this clause) to proceedings in connection with the OHS Act in relation to offences committed against the OHS Act before its repeal or in relation to any related matter that continues to have force or effect. (2) This clause applies whether any such proceedings are pending on the repeal of the OHS Act or whether the proceedings are instituted after that repeal. (3) Part 13 applies with such modifications as are prescribed by the regulations or as are necessary 19On 19 October 2011, Hansard reported the following exchange in parliament: The Honourable David Clarke: I direct my question to the Minister for Finance and Services. Will the Minister update the House on the transitional arrangements for the courts arising out of the Work Health and Safety Act? The Honourable Greg Pearce: The transition from the Industrial Court to the District Court has been an important issue and the government wants to provide certainty to all affected parties. All matters currently before the Industrial Court and all matters filed before 31 December 2011, with one exception, are to remain with the Industrial Court. The exception is where the alleged offence was committed after 7 June 2011, the date of assent. 20To effect these transitional arrangements, the Executive on 28 October 2011 published the Work Health and Safety (Savings and Transitional) Regulation 2011. This regulation was to commence on 1 January 2012. 21The Regulation relevantly provided that proceedings for an OHS offence alleged to have been committed before the repeal of the OHS Act were to be dealt with after the repeal of the OHS Act as if that Act had not been repealed. It further provided that proceedings for offences against the OHS Act instituted after the commencement of the WHS Act on 1 January 2012 were to be heard in the District Court or Local Court. 22The Industrial Court retained jurisdiction in respect of proceedings instituted in that court before the commencement, with the exception of proceedings in respect of offences committed after 7 June 2011 (the date of assent to the WHS Act), which proceedings were to be transferred to the District Court. 23This Regulation was clearly within the power delegated pursuant to Schedule 4 clause 1 and clause 7. 24Unfortunately, shortly after the promulgation of this regulation, Parliament enacted the Work Health and Safety Legislation Amendment Act 2011. This act received assent on 28 November 2011. The act commenced on 1 January 2012. 25This Act omitted clause 7 from Schedule 4, and replaced it with a presently irrelevant provision authorising the continuance of regulations made under the OHS Act. 26One month later, on 16 December 2011, the Executive published the Work Health and Safety Regulation 2011 vesting jurisdiction to deal with OHS prosecutions in the District Court and Local Court. 27This Regulation repealed the Work Health and Safety (Savings and Transitional) Regulation 2011 and provided: SCHEDULE 18B - Savings and transitional provisions Part 2 - Prosecution of offences against OHS laws 2 General transitional arrangements for OHS offences Proceedings for an OHS offence alleged to have been committed before the repeal of the OHS Act are to be dealt with after the repeal of the OHS Act as if that Act had not been repealed, except as otherwise provided by this Part. 3 Arrangements for proceedings commenced after WHS Act commencement Proceedings for an OHS offence that are commenced after the commencement of the WHS Act are to be dealt with as follows: (a) proceedings are to be dealt with summarily before the Local Court or the District Court in its summary jurisdiction, except as provided by paragraph (b), (b) proceedings for an offence against section 32A (Reckless conduct causing death at workplace by person with OHS duties) of the OHS Act are to be taken on indictment. The Problem 28In the absence of the former clause 7 of Schedule 4, the Act does not expressly confer upon the Executive a power to invest jurisdiction in the District Court and the Local Court to entertain OHS prosecutions. 29Section 276 of the Act, the general regulatory power, relevantly provides: 276 Regulation-making powers (1) The Governor may make regulations in relation to: (a) any matter relating to work health and safety, and (b) any matter or thing required or permitted by this Act to be prescribed or that is necessary or convenient to be prescribed to give effect to this Act. 30Schedule 4, amended by the Work Health and Safety Legislation Amendment Act 2011 relevantly provides only that: Part 1 - General 1 Regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts: this Act. The Defendant's Submissions The Sufficiency of Power 31The defendant first contends that by reason of want of sufficient enabling power in the Work Health and Safety Act 2011, to the extent that clause 3 of Schedule 18B purports to vest jurisdiction in the District Court to hear prosecutions under the Occupational Health and Safety Act 2000 (repealed) it is invalid. 32In the defendant's submission an intention to delegate to the Executive the power to confer jurisdiction on a Court will not be attributed to the Parliament without that intention being spelt out in clear language in the enabling Act. Such an intention cannot be inferred from a general regulation making power (Ex parte McGuigan [1923] WN (NSW) 129, Willocks v Anderson 124 CLR 293, The Retirement Benefits Board v Hingston [1997] TASSC 66). 33In Ex parte McGuigan, Ferguson J (with whom Campbell J and Ralston AJ concurred) said: The power to make regulations is given by s51 of the Act which empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing all matters, which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for giving effect to this Act. Section 30 enables powers to be conferred by regulation upon the Commissioner in the event of a purchaser making default under his contract, but does not authorise the making of regulations, conferring jurisdiction upon a Court. The regulation in question if it is valid, confers upon a Court a jurisdiction which hitherto it did not possess, and there is nothing in the Act which authorises that jurisdiction to be conferred by regulation 34In Willocks v Anderson the Court, per Barwick CJ, Menzies, Windeyer, Owen, Walsh and Gibbs JJ, held that the "necessary and convenient" regulation making power in the Apple and Pear Organisation Act 1936, (in similar terms to the power considered in Ex parte McGuigan) did not contemplate that jurisdiction may be conferred on the court by regulation. At 299-300 the Court said: Even if the power to do so [confer original jurisdiction on the Court] may be validly delegated to the Governor-General it is not a matter to be left to the initiative of the Executive except after that attention has been given to the question by the Parliament. If after such consideration the Parliament for reasons sufficiently compelling in a particular case should decide to delegate the power, its intention to do so should be expressly and clearly stated. It cannot be held that the Parliament intended that the time of this Court should be taken up in hearing in its original jurisdiction appeals against elections to commodity boards, such as the Australian Apple and Pear Board, without a clear and unmistakable expression of such an intention. General words should not readily be construed as expressing the necessary intention. Neither in s. 27, nor elsewhere in the provisions of the Act, is there to be found any expression of an intention that original jurisdiction under the Act should be conferred on this Court, nor is there anything in the Act from which the existence of such an intention can be implied. It follows that if Parliament has power to authorize the making of the regulations contained in Pt VI it has not exercised that power. The regulations in Pt VI are therefore ultra vires and invalid and there is no jurisdiction to hear and determine the petition now before the Court. 35In The Retirement Benefits Board v Hingston, Underwood J in the Supreme Court of Tasmania, after citing to this passage, said: Of course, Willocks v Anderson (supra) concerned an attempt to confer jurisdiction by regulation on the High Court, but the principle expressed in the above cited passage is equally applicable to purported Parliamentary authorisation for the Executive to confer jurisdiction on any State court of plenary jurisdiction. In the absence of clear unambiguous words, an intention to delegate to the Executive the power to confer jurisdiction on the Supreme Court will not be attributed to the Parliament. Such an intention certainly cannot be spelled out of a general regulation making power. 36The defendant contrasts the general expression of powers in Schedule 4 clause 1 with the specific conferring of power seen in Clause 14 of Schedule 3 that includes within the regulation making powers of that Schedule the following: 14 Review of decisions Matters relating to the review of decisions under the regulations including: (a) prescribing decisions as reviewable decisions for the purposes of Part 12 or for the purposes of the regulations, and (b) prescribing procedures for internal and external review of decisions under the regulations, and (c) conferring jurisdiction on the Local Court or the Industrial Relations Commission to conduct reviews under the regulations. 37The defendant also relies upon the enactment by Parliament of the Work Health and Safety Legislation Amendment Act 2011 which Act repealed clause 7 of Schedule 4 that had specifically invested the District Court and the Local Court with jurisdiction to entertain OHS prosecutions. 38Parliament is presumed to have taken this step in the knowledge that the Industrial Court would otherwise retain transitional jurisdiction to deal with these matters pursuant to s30 of Interpretation Act 1987. 39This circumstance gives rise to a strong inference that Parliament had changed its mind, and intended that the District Court and Local Court should not exercise jurisdiction over OHS prosecutions, but rather the Industrial Court should exercise a residual jurisdiction over these matters. Schedule 4 Clause 1(5) 40Secondly the defendant submits that even if the regulatory powers conferred by s276 and Schedule 4 of the Act validly enabled clauses 1 to 4 of Schedule 18B of the Regulation, that Regulation could not have effect beyond 31 December 2012 because of the operation of Schedule 4 clause 1(5), which was inserted in the Act by the Work Health and Safety Legislation Amendment Act 2011. 41This provision reads as follows: (5) The power to make regulations under subclause (1) extends to authorise the making of regulations whereby the provisions of this Act are deemed to be amended in a specified manner, but any regulation made pursuant to this subclause: (a) may only be made for or with respect to matters for or with respect to which this Act makes provision, and (b) may not be made so as to have effect after 31 December 2012, and (c) ceases to have effect, unless sooner revoked or otherwise ceasing to have effect, on 31 December 2012. 42This argument proceeds upon the basis that clause 2 of Schedule 18B amends s229B(1) of the WHS Act by expanding the ambit of that section to confer jurisdiction on the District Court to deal with offences against the OHS Act. 43I do not believe that this submission has any substance. The Regulation does not purport to deem that [s229B] be amended in a specified manner. That section continues to operate in its terms. 44It seems to me that the purpose of subclause 5 is to permit a rapid regulatory response to unforeseen problems in the operation of the savings and transitional provisions of the new Act, with the intention that Parliament would, within a short time, consider and enact the appropriate legislative remedy. The Interpretation Act 1987 45Thirdly, the defendant submits that clause 3 of Schedule 18B, by removing the jurisdiction of the Industrial Court to continue to hear OHS prosecutions that would otherwise continue pursuant to s30 of the Interpretation Act 1987, attempts to amend the operation of that Act, and this cannot be done by regulation. 46Section 30 of the Interpretation Act 1987 relevantly provides that: 30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. 47The defendant's submission ignores s5(2) of the Act that provides: 5 Application of Act (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. 48This submission is also without substance. The Prosecutor's Submissions The Sufficiency of Power 49The prosecutor submits that the authorities upon which the defendant relies are distinguishable because clauses 2 and 3 of Schedule 18B do not rely upon the general regulatory power of s276, but rather upon the more focused power to enact regulations of a savings or transitional nature, contained within Schedule 4 Clause 1. 50In Australian Meat Industry Employees Union v Hamberger [2000] FCA 1197 Beaumont, Lee and Gyles JJ said: Where an Act fails to include a transitional provision, which regulates the coming into operation of the enactment and (where necessary) modifies its effect during the period of transition, or where the Act includes an inadequate transitional provision, the Court is required to draw such inferences as to the intended transitional arrangements as, in the light of the interpretive criteria, it considers Parliament to have intended. One feature of a transitional provision is that its operation is expected to be temporary , in that it becomes spent when all the past circumstances with which it is designed to deal have been dealt with. As Nourse J said Inland Revenue Commissioners v Metrolands (Properly Finance) Ltd [1981] 1 WLR 637 at 649: "One thing which is clear about [s45] (4) and (8), is that the former is a permanent provision and the latter is a transitional one... it would be very dangerous, in trying to get to the effect of the permanent provision to attach too much weight to the particular wording of the transitional one" 51The intentions of Parliament in relation to transitional measures may be different to its intentions in relation to the enduring effects of permanent provisions. The necessary intention in relation to transitional measures may be inferred from the legislative scheme and other circumstances rather than found in the clear and unmistakable expression of ...intention required by Willlocks. 52The chronology of the legislative changes reveals a Parliamentary intention that the Executive by regulation confer jurisdiction on the District Court to deal with OHS prosecutions. 53On 7 June 2011 The WHS Act received assent. This act was to commence on January 2012. Within Schedule 4, Clause 7 expressly conferred jurisdiction upon the Local Court and the District Court to deal with OHS prosecutions. 54Clause 1 of Schedule 4 authorised regulations of a savings or transitional nature that may concern this jurisdiction. 55On 28 October 2011 the Executive, exercising the power conferred by Clause 1, published the Work Health and Safety (Savings and Transitional) Regulation 2011. This regulation also expressly conferred jurisdiction on the District Court. It read as follows: 2 Commencement This Regulation commences on the commencement of the WHS Act. 5 Arrangements for proceedings commenced after WHS Act commencement Proceedings for an OHS offence that are commenced after the commencement of the WHS Act are to be dealt with as follows: (a) proceedings are to be dealt with summarily before the Local Court or the District Court in its summary jurisdiction, except as provided by paragraph (b), (b) proceedings for an offence against section 32A (Reckless conduct causing death at workplace by person with OHS duties) of the OHS Act are to be taken on indictment. 56On 28 November 2011 the Work Health and Safety Legislation Amendment Act 2011 received assent. 57When passing that Act the Legislature knew that the District Court was already, pursuant to clause 5 of the properly enabled Work Health and Safety (Savings and Transitional) Regulation 2011, expressly vested with jurisdiction to hear OHS prosecutions upon commencement of the Work Health and Safety Act 2011. 58It is not surprising then, that the Legislature in passing the Amending Act deleted the original and enabling clause 7 of Schedule 4, believing that it was redundant because clause 5 of the existing Regulation provided to the same effect. The Legislature could not have foreseen the next event. 59On 16 December 2011 the Executive published the Work Health and Safety Regulation 2011. This regulation unnecessarily and absurdly repealed the expressly authorised transitional provisions in clause 5 vesting jurisdiction in the District Court, and, without express authority, replaced them, in precisely the same terms, with clauses 2 and 3 of Schedule 18B of the Work Health and Safety Regulation 2011 as follows: 2 General transitional arrangements for OHS offences 3 Arrangements for proceedings commenced after WHS Act commencement Proceedings for an OHS offence that are commenced after the commencement of the WHS Act are to be dealt with as follows: (a) proceedings are to be dealt with summarily before the Local Court or the District Court in its summary jurisdiction, except as provided by paragraph (b), (b) proceedings for an offence against section 32A (Reckless conduct causing death at workplace by person with OHS duties) of the OHS Act are to be taken on indictment. 60Compare these words with the words contained within paragraph 55 above. 61The intention of Parliament that the District Court be invested with jurisdiction to entertain OHS prosecutions is quite plainly spelt out in this sequence. The parliamentary intention did not change. Any confusion is the result of Executive oversight. Conclusion 62I accept the submissions of the prosecutor. I find that clauses 2 and 3 of Schedule 18B of the Work Health and Safety Regulation 2011 are valid regulations enabled by clause 1 of Schedule 4 of the Work Health and Safety Act 2011. Order 63Liberty to the parties to bring in short minutes of orders for the future disposition of this matter. Mr J V Agius SC with Mr B G Docking instructed by WorkCover Authority of New South Wales appeared for the Prosecutor Mr G W McGrath SC with Mr S A Adair instructed by Eastern Commercial Lawyers appeared for the defendants DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2013