Lawyers say prosecutors must define the shortcomings and show what the accused should have been done
August 27, 2013
Queensland employers may soon have similar shields against unfair occupational health and safety prosecution practices as those in New South Wales, legal analysis of a case in the state indicates.
The Queensland Court of Appeal’s decision in the NK Collins Industries Pty Ltd v The President of the Industrial Court of Queensland and Another [2013] case is seen as supporting the High Court’s crucial Kirk decision of 2010.
In particular, they point to the Appeal Court’s finding that it was “incumbent on the prosecution to identify the measure or measures which should have been taken to ensure workers’ safety from the risk . . . That would in turn clarify what the risk was . . .
or whether it was posed by some feature of the system of work. It would then fall to the applicant to make out its defence . . .”
In Kirk, he High Court judged that NSW WorkCover actions
and proceedings in the NSW Industrial Relations Commission were “oppressive” and “absurd” because the prosecution could not identify the shortcomings of the accused or what the accused should have done to ensure health and safety in regards to a particular incident.
The Court of Appeal has referred the Collins
case, relating to a fatal tree-felling accident, back to the President of the Queensland Industrial Court for determination.
This comes after the industrial court had ruled that the state’s legal framework differed from NSW’s such that Kirk, which had concerned a fatal vehicle accident, was not applicable as a defence in a case brought by Work Health and Safety Queensland (WHSQ).
Commenting on the case, McCullough Robertson lawyers Cameron Dean and Lauren Bain say the way is now
open for some employers to question their prosecution under Queensland’s Workplace Health and Safety Act 1995 that was repealed in 2011.
“Most significantly, it has now been confirmed in Queensland that defendants to prosecutions under the WHS Act and similar health and safety legislative schemes are entitled to be fully appraised of the case against them, and a failure by WHSQ to do so may cause a complaint to be struck out,” they say.
Jack De Flamingh, Jane Hall and Richelle Farrer of Corrs Chambers Westgarth point out that the decision pulls Queensland into line with other states and emphasises what prosecutors will need to produce in order to secure a conviction.
“This may result in investigations taking longer and greater reliance being placed upon expert evidence, for example, evidence provided by experienced inspectors, independent safety professionals or industry bodies,” they say.
“Evidence will also be led through reference to Australian Standards, regulations Compliance Codes and industry practice.”
