Part 7 Criminal and other proceedings
Division 1 Proceedings for offences generally
105 Summary procedure for offences
(1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily:(a) before a Local Court constituted by a Magistrate sitting alone, or(b) before the Industrial Relations Commission in Court Session.(2) The maximum monetary penalty that may be imposed in those proceedings by a Local Court is 500 penalty units, despite any higher maximum monetary penalty provided in respect of the offence.(3) The provisions of the Industrial Relations Act 1996, and of the regulations under that Act, relating to appeals from a Local Court to the Industrial Relations Commission in Court Session in connection with offences against that Act apply to proceedings before a Local Court for offences against this Act or the regulations.Note. Section 197 of the Industrial Relations Act 1996 deals with appeals against convictions or penalties in connection with offences against that Act. Section 197A of the Industrial Relations Act 1996 provides a right of appeal to the Full Bench of the Industrial Relations Commission in Court Session against a decision of a member of the Commission or a Local Court to acquit a person of an offence against this Act or the regulations.
(1) Proceedings for an offence against this Act or the regulations may be instituted only:(a) with the written consent of a Minister of the Crown, or(b) with the written consent of an officer prescribed by the regulations, or(c) by an inspector, or(d) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate.(2) In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by a Minister or a prescribed officer, is evidence of that consent without proof of the signature of the Minister or prescribed officer.
107 Time for instituting proceedings for offences
(1) Proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence, except as otherwise provided by this section or section 107A.(2) This subsection applies to an offence against section 11 (Duties of designers, manufacturers and suppliers of plant and substances for use at work) or section 86 (Notification of incidents). Proceedings for any such offence may be instituted:(a) within 6 months after WorkCover first becomes aware of the act or omission alleged to constitute the offence, or(b) within 2 years after the act or omission alleged to constitute the offence,whichever provides the longer period to institute proceedings.(3) If a coronial inquest or inquiry is held and it appears from the coroner’s report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations (whether or not the offender is identified), proceedings in respect of that offence may be instituted within 2 years after the date the report was made or the inquest or inquiry was concluded.(4) This section applies despite anything in any other Act.
107A Time for instituting proceedings—special provision for work incident notification
(1) If an act or omission alleged to constitute an offence against this Act or the regulations gives rise to an incident (a work incident) to which section 86 (Notification of incidents) applies, proceedings for the offence may be instituted:(a) within 2 years after the occurrence of the work incident, or(b) within 6 months after WorkCover first becomes aware of the work incident,whichever provides the longer period to institute proceedings.(2) It is to be conclusively presumed for the purposes of this section that WorkCover does not become aware of a work incident until whichever of the following happens first:(a) notice of the incident is given in compliance with section 86, whether or not that notice is given within the time required under that section,(b) WorkCover gives the employer or occupier concerned notice in writing that is expressed to be notice for the purposes of this section and indicates that WorkCover has become aware of the incident.(3) The Chief Executive Officer of WorkCover may for the purposes of this section give a certificate in writing certifying as to when WorkCover first became aware of a work incident as provided by this section.(4) Proceedings for an offence against this Act or the regulations cannot be instituted under this section more than 2 years after the occurrence of the work incident unless the Chief Executive Officer of WorkCover has certified in writing that the proceedings are in the public interest.(5) A certificate given by the Chief Executive Officer of WorkCover under this section is conclusive evidence as to the matters certified and cannot be challenged, reviewed or called into question in any proceedings before any court or tribunal.(6) For the purposes of the application of this section to a mine, a reference in this section to section 86 is to be read as a reference:(a) in the case of a mine to which the Mines Inspection Act 1901 applies—to section 47 of that Act or to such other provision of that Act as may be prescribed by the regulations, or(b) in the case of a mine to which the Coal Mines Regulation Act 1982 applies—to section 86 of that Act or to such other provision of that Act as may be prescribed by the regulations.(7) This section applies despite anything in any other Act.
108 Penalty notices for certain offences
(1) An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence under this Act or the regulations, being an offence prescribed by the regulations.(2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter dealt with by a court, the person may pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.(3) A penalty notice may be served personally or by post.(4) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.(5) Payment under this section is not to be regarded as an admission of liability for the purpose of, nor in any way as affecting or prejudicing, any civil claim, action or proceedings arising out of the same occurrence.(6) The regulations may:(a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and(b) prescribe the amount of penalty payable for the offence if dealt with under this section, and(c) prescribe different amounts of penalties for different offences or classes of offences, and(d) prescribe different amounts of penalties for the same penalty notice offence.(7) The amount of a penalty prescribed under this section for an offence must not exceed the maximum amount of penalty which could be imposed for the offence by a court.(8) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings which may be taken in respect of offences.(9) In this section:authorised officer means:
(a) an inspector, or(b) a person declared by the regulations to be an authorised officer for the purposes of this section.
In a prosecution for an offence against this Act or the regulations, a statement, purporting to be signed by the Chief Executive Officer of WorkCover or other prescribed person, relating to:(a) a notification of an incident or other matter required to be notified by or under this Act, or(b) a certificate, licence or permit issued under a provision of the regulations, or(c) any other prescribed matter contained in a prescribed official document concerning occupational health and safety,and certifying that the contents of the statement are in accordance with the particulars contained in the document, is admissible in any proceedings and is evidence of the matters contained in the statement without proof of the signature of the person by whom the statement purports to have been signed.
110 Onus of proof concerning reasonable excuse
In any proceedings for an offence against a provision of this Act or the regulations, the onus of proving that a person had a reasonable excuse (as referred to in the provision) lies with the defendant.Note. Provisions relating to victim impact statements with respect to proceedings for offences against this Act or the regulations are contained in Part 3 of the Crimes (Sentencing Procedure) Act 1999. That Act also contains other provisions relating to sentencing for those offences.
Division 2 Court orders in connection with offences
(1) Application to proved offences
This Division applies where a court finds an offence against this Act or the regulations proved.(2) Meaning of proved offences
Without limiting the generality of subsection (1), a court finds an offence proved if:(a) the court convicts the offender of the offence, or(b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 against the offender in relation to the offence.(3) Definitions
In this Division:the court means the court that finds the offence proved.
the offender means the person who is found to have committed the offence.
(1) Orders may be made
One or more orders may be made under this Division against the offender.(2) Orders are additional
Orders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence.
(1) The court may order the offender to take such steps as are specified in the order, within the period so specified, to remedy any matter caused by the commission of the offence that appears to the court to be within the offender’s power to remedy.(2) The period in which an order under this section must be complied with may be extended, or further extended, by order of the court but only if application for such an extension is made before the end of that period.
114 Orders regarding costs and expenses of investigation
(1) The court may, if it appears to the court that WorkCover has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to WorkCover the costs and expenses so incurred in such amount as is fixed by the order.(2) An order made by the Industrial Relations Commission under this section is enforceable under section 182 of the Industrial Relations Act 1996. An order made by a Local Court under this section is enforceable as if it were an order made by the Local Court when exercising jurisdiction under the Local Courts (Civil Claims) Act 1970.(3) In this section:costs and expenses, in relation to the investigation of an offence, means the costs and expenses in conducting any examination or test of anything during the investigation of the offence.
Note. See section 122 of the Fines Act 1996 for orders requiring part of the fine imposed for an offence to be paid to the prosecutor.
115 Orders to publicise or notify offence
(1) The court may do any one or more of the following:(a) order the offender to take specified action to publicise the offence, its consequences, the penalty imposed and any other related matter,(b) order the offender to take specified action to notify specified persons or classes of persons of the offence, its consequences, the penalty imposed and any other related matter (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender’s conduct).(2) The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.(3) If the offender fails to comply with an order under this section, the prosecutor or a person authorised by the prosecutor may take action to carry out the order as far as may be practicable, including action to publicise or notify:(a) the original contravention, its consequences, the penalty imposed and any other related matter, and(b) the failure to comply with the order.(4) The reasonable cost of taking action referred to in subsection (3) is recoverable by the prosecutor or person taking the action, in a court of competent jurisdiction, as a debt from the offender.
116 Orders to undertake OHS projects
(1) The court may order the offender to carry out a specified project for the general improvement of occupational health, safety and welfare.(2) The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.(3) A Local Court may not make an order under this section unless it is satisfied that the cost of complying with the order does not exceed the jurisdictional limit of a Local Court when sitting in its General Division within the meaning of the Local Courts Act 1982.
117 Offence: failure to comply with order
(1) A person who, without reasonable excuse, fails to comply with an order under this Division is guilty of an offence.Maximum penalty:
(a) in the case of a corporation (being a previous offender)—1,500 penalty units, or(b) in the case of a corporation (not being a previous offender)—1,000 penalty units, or(c) in the case of an individual (being a previous offender)—375 penalty units, or(d) in the case of an individual (not being a previous offender)—250 penalty units.(2) This section does not apply to an order under section 114 (Orders regarding costs and expenses of investigation).
Division 3 Proceedings against the Crown and government agencies
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.
119 Criminal proceedings against the Crown and agents of the Crown
(1) The Crown in any capacity may be prosecuted for an offence against this Act or the regulations.(2) The Crown in any capacity may be served with a penalty notice in connection with an alleged offence against this Act or the regulations.(3) In the case of an offence against this Act or the regulations committed or alleged to have been committed by an agency of the Crown that is a corporation:(a) the corporation and not the Crown may be prosecuted for the offence, and(b) the corporation and not the Crown may be served with a penalty notice.Note. See section 123 for proceedings against successors of corporate agents of the Crown. The other provisions of this Act relating to corporations apply in respect of proceedings against corporate agents of the Crown.(4) For the purposes of this Division, proceedings against the Crown are proceedings to which this section applies (other than those against an agency of the Crown that is a corporation).(5) Proceedings against the Crown in right of New South Wales may be brought or taken under the title “State of New South Wales”.
120 Responsible agency for the purposes of proceedings against the Crown
(1) The responsible agency for the purposes of proceedings against the Crown is the agency of the Crown:(a) whose acts or omissions are alleged to constitute the offence, or(b) if that agency has ceased to exist—that is the successor of that agency, or(c) if that agency has ceased to exist and there is no clear successor—that the court declares to be the responsible agency.(2) The responsible agency is to be specified in the charge for an offence for which the Crown is prosecuted or in any penalty notice served on the Crown. The responsible agency may, during any proceedings for an offence, be changed by the prosecutor with the leave of the court.(3) The responsible agency is entitled to act for the Crown in proceedings against the Crown.(4) Subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused in the proceedings are conferred or imposed on the responsible agency.(5) For the purposes of this section, a State owned corporation is taken to be an agency of the Crown in right of New South Wales.
121 Penalties in respect of proceedings against the Crown
(1) In this section, penalty means:(a) the monetary penalty for an offence against this Act or the regulations, or(b) the amount payable under a penalty notice served in connection with such an offence, or(c) the amount payable under an order made under Division 2.(2) The penalty in respect of proceedings against the Crown is the penalty applicable in respect of offences committed by a corporation.(3) If that penalty differs for previous offenders, the Crown is a previous offender in relation to particular proceedings against the Crown only if the Crown is a previous offender in respect of the acts or omissions of the same responsible agency of the Crown (or any predecessor of that agency).(4) Enforcement proceedings under the Fines Act 1996 cannot be taken in connection with penalties imposed in respect of proceedings against the Crown.
122 Investigation, improvement or prohibition notices in connection with the Crown
(1) Investigation or improvement notices may be issued in respect of any activity of or controlled by the Crown and prohibition notices may be issued in respect of any contravention of this Act or the regulations by the Crown.(2) Any such notice may be served on the agency that would be the responsible agency if the Crown were prosecuted for an offence with respect to that activity or that contravention.
123 Proceedings against successors of government corporations
(1) In this section, government corporation means:(a) a corporation that is an agent of the Crown, or(b) a State owned corporation, or(c) a corporation that is an area health service or statutory health corporation within the meaning of the Health Services Act 1997, or(d) a local council or county council, or(e) a public or local authority that is declared by the regulations to be a government corporation for the purposes of this section.(2) Proceedings for an offence against this Act or the regulations that were instituted against a government corporation before its dissolution, or that could have been instituted against a government corporation but for its dissolution, may be continued or instituted against its successor if the successor is a government corporation.(3) Subsection (2) extends to proceedings that could have been instituted against a government corporation because of the operation of that subsection.(4) A penalty notice served on a government corporation for an offence against this Act or the regulations or any penalty paid by a government corporation in respect of such a penalty notice:(a) is taken to be a penalty notice served on its successor if the successor is a government corporation, or(b) is taken to be a penalty paid by any such successor,as the case requires.
Division 4 Sentencing guidelines
In this Division:Full Bench means the Full Bench of the Industrial Relations Commission in Court Session.
guideline judgment means a judgment of the Full Bench containing guidelines to be taken into account by the Industrial Relations Commission in Court Session, a Local Court, the District Court or the Supreme Court in sentencing persons convicted of an offence being:
(a) guidelines that apply generally, or(b) guidelines that apply to particular courts (or the Industrial Relations Commission in Court Session) or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of persons convicted of an offence (but not to particular persons).guideline proceedings means proceedings under section 125 on an application for a guideline judgment referred to in that section.
offence means an offence under this Act, the regulations or the associated occupational health and safety legislation.
State peak council has the meaning that it has in the Industrial Relations Act 1996.
125 Guideline judgments on application of Attorney General
(1) The Full Bench may give a guideline judgment on application of the Attorney General.(2) An application for a guideline judgment may include submissions with respect to the framing of the guidelines.(3) An application is not to be made in any proceedings before the Full Bench with respect to any particular person.(4) The powers and jurisdiction of the Full Bench to give a guideline judgment in proceedings under this section in relation to an offence are the same as the powers and jurisdiction that the Court of Criminal Appeal has to give a guideline judgment in a proceeding under section 37A of the Crimes (Sentencing Procedure) Act 1999.(5) A guideline judgment under this section may be given separately or may be included in any judgment of the Full Bench that it considers appropriate.
126 Peak councils may intervene
(1) A State peak council, or a representative of a State peak council who is a legal practitioner, may appear in guideline proceedings.(2) Without limiting subsection (1), a State peak council or its representative may do either or both of the following:(a) make submissions with respect to the framing of the guidelines,(b) assist the Full Bench with respect to any relevant matter.
127 Full Bench may give persons or organisations leave to appear
(1) The Full Bench may grant leave to any person, organisation or government department or agency (or a representative of any person, organisation, department or agency who is a legal practitioner) to appear in guideline proceedings.(2) Without limiting subsection (1), any person, organisation, government department or agency that is granted leave to appear (or its representative, if any) may do either or both of the following:(a) make submissions with respect to the framing of the guidelines,(b) assist the Full Bench with respect to any relevant matter.(3) This section does not apply to State peak councils.
128 Alteration of guideline judgments
A guideline judgment given in proceedings under this Division may be reviewed, varied or revoked in a subsequent guideline judgment of the Full Bench, whether made under this Division or apart from it.
129 Discretion of Full Bench preserved
Nothing in this Division:(a) limits any power or jurisdiction of the Full Bench to give a guideline judgment that the Full Bench has apart from this Division, or(b) requires the Full Bench to give any guideline judgment under this Division if it considers it inappropriate to do so.
130 Rules of Industrial Relations Commission
Rules of the Industrial Relations Commission may be made under the Industrial Relations Act 1996 with respect to applications, and proceedings to determine applications, under this Division.
131 Use of evidence in giving guideline judgments
(1) Nothing in section 12 of the Criminal Appeal Act 1912 or in section 163 (2) of the Industrial Relations Act 1996 limits the evidence or other matters that the Full Bench may take into consideration in giving a guideline judgment (whether or not on an application under this Division) and the Full Bench may inform itself as it sees fit.(2) The Full Bench must not increase a sentence in any appeal by reason of, or in consideration of, any evidence that is used by the Full Bench in giving a guideline judgment in the appeal but was not given in the original proceedings.