Work health and safety have seen significant developments in court procedures and case law, impacting safety prosecutions in New South Wales. The Industrial Court of New South Wales, which resumed operations on July 1, 2024, now holds jurisdiction over work health and safety matters. The Court’s recent practices, outlined in a relevant practice note, emphasize proactive case management to expedite proceedings.
Justice Jane Paingakulam’s presentation shed light on the Court’s expectations for timely progression of cases. With a focus on efficiency, the Court aims to limit mentions and expedite hearings within six months of the Summons being issued. These changes aim to streamline processes, reduce costs, and ensure witnesses provide clearer evidence closer to the incident.
Defendants in work health and safety prosecutions must adapt to this proactive approach, engaging with SafeWork NSW early on to potentially reach agreements. Recent case law from the Court of Criminal Appeal, exemplified by Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105, highlights the importance of timely action in safety prosecutions.
The case clarified that the limitation period for prosecutions starts when the regulator becomes aware of a risk, not necessarily when an incident occurs. This ruling may prompt regulators to initiate proceedings upon identifying risks, rather than waiting for incidents. The timeline of events leading to the prosecution against Prime Marble underscores the significance of regulator awareness in determining the limitation period.
Key to the case’s outcome was the Court’s interpretation that the regulator’s knowledge of risks equates to notice of exposure, triggering the limitation period. This ruling sets a precedent that prosecutions can be based on identified risks, even without actual injuries. It signals a potential increase in prosecutions where serious breaches are identified, even before incidents occur.
For PCBUs (persons conducting a business or undertaking), this ruling underscores the importance of addressing risks promptly. The case’s implications extend beyond New South Wales, potentially influencing safety prosecutions in other jurisdictions. Defendants now have an avenue to challenge prosecutions based on the regulator’s prior knowledge of risks.
These developments in work health and safety law mark a shift towards proactive risk management and expedited legal proceedings. By understanding and adapting to these changes, businesses can navigate safety prosecutions more effectively and ensure compliance with regulatory requirements.
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