In this article, we examine two recent developments in work health and safety which will impact safety prosecutions in NSW in light of both signals from the new Industrial Court of New South Wales regarding the manner in which it intends to manage proceedings (including in the relevant practice note issued by the Court), and recent case law from the Court of Criminal Appeal.

Industrial Court of New South Wales resumes

On 1 July 2024, the Industrial Court of New South Wales resumed operation as a superior court of record to exercise jurisdiction regarding work health and safety prosecutions, since its abolition in 2016. The Industrial Court now has the power to hear a range of work health and safety matters, other than Category 1 charges brought against an individual - which will remain with the District Court.

In late September 2024, the Hon. Justice Jane Paingakulam presented at State Chambers about the early operations of the Court, and the manner in which the Court intends to case manage matters. It is notable that Her Honour’s practice prior to being appointed to the Bench was primarily in criminal law.

Of the 42 prosecutions that had at the time come before the Court, two had been finalised. Her Honour made it clear the Court expects parties to be proactive in progressing proceedings. Her Honour also indicated the Court will assist parties to the extent necessary and encourages parties to relist matters to seek appropriate orders to keep the matters moving in line with the Court’s Practice Note No 1 rather than waiting until the next appointed mention.

The Practice Note sets out a thorough procedure for the conduct of prosecutions before the Court and contemplates that there will generally be no more than three mentions (four at most in limited circumstances), with either a contested hearing in respect of the charges, or a sentencing hearing occurring within six months of the Summons being issued. This represents a significantly quicker process than has previously been the case in NSW and is intended to result in:

• more cost-effective proceedings
• witnesses giving evidence sooner and while they have clearer recollections, particularly given the regulator often commences prosecutions very close to the end of the two-year limitation period.

Defendants to work health and safety prosecutions and their legal representatives will need to take a proactive approach to responding to charges, including quickly reviewing the brief and (if appropriate) engaging in negotiations with the regulator, SafeWork NSW, to the extent that agreement may be possible in the context of a guilty plea.

Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105

Under section 232(1)(a) of the Work Health and Safety Act 2011 (NSW) (Act), work health and safety prosecutions must be brought within two years after “the offence first comes to the notice of the regulator”. An offence against the Act often first comes to the notice of the regulator when a safety incident occurs and, for that reason, generally the prosecutions are brought by the regulator within two years from the date of the incident.

In the recent case of a prosecution brought by SafeWork NSW against Prime Marble & Granite Pty Ltd (Prime Marble), the New South Wales Court of Criminal Appeal found that the clock for the limitation period starts ticking when the regulator is aware of a risk that could give rise to an injury or illness and not when the risk materialises. The decision is likely to result in the regulator seriously considering whether to commence proceedings where it identifies a risk, and not merely after an incident occurs, which has generally been the practice to date.

Timeline

On 30 August 2017, a SafeWork NSW inspector attended Prime Marble’s site to measure exposure to respirable crystalline silica (RCS) dust as part of the research for a project for preventing RCS dust in the workplace. The research found that five out of six workers at the site were exposed to RCS dust 2.1 – 7.5 times higher than the Australian Workplace Exposure Standard (0.1mg/m3). The finding was detailed in SafeWork NSW’s workplace hygiene monitoring report dated 20 November 2017.

On 20 April 2018, SafeWork NSW issued an improvement notice namely that the workers at Prime Marble carrying out ongoing work with stone were exposed to RCS dust that could cause significant risk to their health, including the risk of silicosis.

Prime Marble workers Mr Geng and Mr Zhang died from silicosis on 19 May 2020 and 17 June 2020 respectively. 
On 31 March 2021 and 17 May 2021, SafeWork NSW became aware of the connection between Prime Marble and the illnesses and death of Mr Zhang and Mr Geng when it received documentation from iCare.

On 30 March 2023, SafeWork NSW commenced a prosecution against Prime Marble under s 32 (Category 2 offence) of the Act on the basis that Prime Marble failed to comply with its primary health and safety duty and exposed Mr Zhang and Mr Geng to a risk of death or serious injury.

On 4 December 2023, Prime Marble filed an interlocutory application seeking dismissal of the proceedings, claiming the prosecution was commenced out of time because SafeWork NSW knew about the offence that was subject of each Summons when SafeWork NSW issued the report in 2017.

When does the limitation period commence?

The District Court initially found the prosecution had commenced within the two-year limitation period because the information obtained by the regulator in 2017 did not indicate that either Mr Zhang and/or Mr Geng were specifically exposed to a risk of death or serious injury as a result of Prime Marble’s failure to comply with its duty. Rather, the Court found that SafeWork NSW was only able to draw that connection in 2021.

Prime Marble then appealed in the Court of Criminal Appeal. The Court of Criminal Appeal ultimately found the prosecution was commenced outside the limitation period and dismissed the proceedings on the basis:

• The “offence” which must come to the notice of the regulator for the purpose of the limitation period is a reference to an alleged offence.
• A section 32 offence will be complete when the alleged failure by a person who has a health and safety duty exposes an individual to a risk of death or serious injury or illness. In other words, in determining whether “the failure exposes an individual to a risk of death or serious injury or illness”, the question is not:
  • Whether or not the risk has materialised in the sense that the exposure leads, or has led, to death or serious injury or illness but whether the risk might materialise.
  • Which individual had been exposed to the relevant risk.
• In this case, the existence of SafeWork NSW’s knowledge of RCS dust concentrations in 2017 equated to notice of exposure of Prime Marble’s workers to the relevant risk.

What does this mean for PCBUs?

It was acknowledged in this case that “prosecutions of this nature are rarely if ever brought unless there has in fact been a serious injury or death” as it is without a doubt easier to establish the relevant risk if that risk has materialised. 

As this case stands for the proposition that an actual injury or illness is not required in bringing prosecutions under the Act, the regulator may launch more prosecutions, particularly where an assessment is made that the breach is serious and may have serious (albeit unrealised) consequences. Excluding Queensland (where the regulator and prosecutor are separate, such that the regulator’s knowledge of a risk will not have a bearing on the limitation period in that State), this may also occur in other harmonised jurisdictions. 

The case also opens the door for any defendant PCBU to challenge a prosecution on the basis that it is out of time because the regulator was on notice of the offence at a point in time resulting in the limitation period for bringing a prosecution having expired before the prosecution was commenced.