29 November 2013
Practice Group(s):
Labour, Employment
and Workplace Safety
District Court has Jurisdiction to Hear OHS Matters
By Gerard Phillips, John Makris, John Rodney, Erica Elliott and Matthew Parker
The New South Wales Court of Appeal (Court of Appeal) and the New South Wales
Parliament have confirmed that the District Court has jurisdiction to hear prosecutions
brought under the previous occupational health and safety legislation.
The Court of Appeal decision in Empire Waste Pty Ltd v District Court of New South Wales
[2013] NSWCA 394 unanimously upheld the District Court judgment in determining the
District Court had the necessary power to deal with health and safety prosecutions brought
under the Occupational Health and Safety Act 2000 (OHS Act).
Empire Waste Pty Ltd (Empire Waste) appealed the decision on the basis the regulation,
which purported to confer jurisdiction the District Court, was either invalid or ceased to have
effect after December 2012.
The Court of Appeal found that the enabling provisions of the regulation established the
framework necessary for the administration of the legislation and for carrying out the
objective of the legislation. The decision deals with cases which were being heard in the
Industrial Relations Commission of New South Wales but were not yet completed and then
transferred to the District Court on 7 June 2011. It does not affect cases filed under the Work
Health & Safety Act 2011 (WHS Act) from 1 January 2012.
In addition, both houses of New South Wales Parliament passed the Work Health and Safety
Amendment Bill 2013 (the Bill), which will:

allow WorkCover to revive work health and safety prosecutions commenced by
solicitors (as opposed to inspectors)

retrospectively allow the District and Local Courts to hear health and safety
prosecutions which do not involve reckless conduct.
The Bill will also allow WorkCover to recommence proceedings which were terminated due
to issues about validity during the lead time from the repeal of the former OHS Act and
Regulation and the commencement of the WHS Act and Regulation, even if the limitation
period for commencing those proceedings has expired.
Collectively, the Court of Appeal decision and the Bill reinvigorate the work, health and safety
jurisdiction in New South Wales. However, the time for appeal to the High Court has not yet
expired for Empire Waste.
District Court has Jurisdiction to Hear OHS Matters
Authors:
Gerard Philips
gerard.phillips@klgates.com
+61.2.9513.2561
John Makris
john.makris@klgates.com
+61.2.9513.2564
John Rodney
john.rodney@klgates.com
+61.2.9513.2313
Erica Elliott
erica.elliott@klgates.com
+61.2.9513.2564
Matthew Parker
matthew.parker@klgates.com
+61.2.9513.2491
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