The New South Wales Occupational Health & Safety Act (Act) permits the prosecutor to appeal to a Full Bench of the Industrial Court of New South Wales, against a verdict of acquittal. This is an exception to the normal principles of criminal law. Recently the New South Wales Court of Appeal was called upon to consider the scope of the orders which the Full Bench can make in determining such an appeal.
The case (Bros Bins Systems Pty Limited v Industrial Court of New South Wales [2008] NSWCA 292) is another example of the type of long running litigation to which, it appears, the Act is prone. The difficulty arises because of the need to reconcile two competing principles of interpretation – on the one hand, the need to give a broad or generous construction to legislation that is designed to secure a public benefit and, on the other hand, the need to follow an approach of strict construction because the Act is also penal in nature.
Bros Bins operated a business involving the removal of industrial rubbish. The company owned a number of trucks that were specially fitted with a hydraulic bin mechanism. One of the trucks required repair and for that purpose was taken to Tibby Rose Auto, an auto repair business. An employee of Bros Bins (Mr Wood) drove the truck to the premises of Tibby Rose Auto and remained there whilst the vehicle was worked on by an employee of Tibby Rose Auto.
During the course of the repairs, the bin mechanism was raised. Some time later it fell, killing an employee of Tibby Rose Auto. It was accepted that another employee of Tibby Rose Auto had touched a control lever that caused the mechanism to descend.
Bros Bins was charged under what is now section 10(2) of the Act, which requires that a person who has control of plant (to any extent) that is used by people at work must ensure that the plant is safe and without risks to health.
At first instance, the trial judge (Marks J) acquitted Bros Bins on the basis that the truck was not "plant" for the purposes of the Act. Whilst the truck was at the premises of Tibby Rose Auto, it represented the product of work processes carried out by Tibby Rose Auto and it was not a fixture, implement or apparatus used in the carrying on of the work.
The prosecutor brought an appeal to a Full Bench of the Industrial Court. The prosecutor argued that the word "plant" in the Act should not be given a narrow meaning, and the mere fact the truck was being repaired did not mean that it was not plant.
Bros Bins argued that if such a view was to be accepted it would be impossible for a company to have an item of machinery or equipment repaired by a third party without breaching the Act. In effect the company could only discharge its obligation if it had the plant fixed before it was given to the repairer. Such an absurd result could not have been intended by Parliament. It might be thought that, at a common sense level, this argument has much to commend it.
The Full Bench did not agree and concluded that the vehicle constituted "plant" under the Act. The Full Bench set aside the acquittal and directed that the matter be returned to Marks J for rehearing.
At the rehearing, the company was found guilty. A subsequent appeal to the Full Bench was unsuccessful.
The company then applied for a review of the decision by the New South Wales Court of Appeal. The Court of Appeal possesses a supervisory jurisdiction under which it may quash a decision of the Full Bench if that decision is affected by jurisdictional error.
Bros Bins argued that jurisdictional error occurred in two ways, namely:
- the Full Bench's conclusion that the truck constituted plant under the Act; and
- the right of appeal against acquittal does not permit the Full Bench to remit the matter for re-trial to a single judge of the Court.
On the first ground, the Court of Appeal concluded that even if the Full Bench had been in error, the mistake was not jurisdictional in nature and so the Court of Appeal had no capacity to intervene.
However, Bros Bins was successful on the second ground. The Court of Appeal held that the right against double jeopardy is such a powerfully entrenched right within our law, that it can only be abrogated by the express will of Parliament. Parliament had expressed its will to permit an appeal against acquittal (and so to abrogate double jeopardy), but if it had been Parliament's intention that the consequence of a successful appeal could be a rehearing, then this would have been made clear within the legislation. It was not.
The Court of Appeal ordered that the re-trial conducted before Marks J was beyond jurisdiction and the results of it were void. The matter was sent back to be fully determined by the Full Bench.
The course of this litigation is a further indication that the jurisprudence relating to the operation of key provisions of the Act may have become unbalanced and that the penal aspect of the legislation is not sufficiently taken into account. It is difficult, again at a common sense level, to accept that a person who seeks to get a vehicle repaired should be penalised because of an accident that the repairer has caused.
It is noteworthy that the recommendations of the advisory panel (referred to in the Report on National Harmonisation of OHS Laws) have made it clear that the model national OHS legislation should not allow appeals from acquittal. The recommendations of the panel also state that a right of appeal against conviction and/or sentence should exist to the relevant State Supreme Court and, thereafter, to the High Court. This measure would serve to prevent any tendency toward unrealistically absolute interpretations of the Act.
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