Anna Patty, State Politics
February 24, 2012 - 11:58AM
·
WorkCover prosecutors are adjourning all occupational health and safety
cases listed for hearing while it reviews whether they fall under a law
introduced last month.
cases listed for hearing while it reviews whether they fall under a law
introduced last month.
The Work Health and Safety Act 2011 replaced the Occupational Health and
Safety Act 2000.
The NSW opposition and Greens say the review breaches the intent of the
new law because it is not retrospective and should not apply to cases that
began before last month.
The new law makes it harder for the prosecution to prove its case.
new law because it is not retrospective and should not apply to cases that
began before last month.
The new law makes it harder for the prosecution to prove its case.
The government has described the change as a reversal of the onus of proof.
The former chairman of WorkCover NSW, Greg McCarthy, has warned the
government scheme could be in deficit by as much as $5 billion when the
annual accounts are produced in June.
government scheme could be in deficit by as much as $5 billion when the
annual accounts are produced in June.
The shadow treasurer, Michael Daley, said WorkCover was the regulator
of workplace safety and its job was to protect workers and prosecute
bosses responsible for workplace injuries and deaths.
of workplace safety and its job was to protect workers and prosecute
bosses responsible for workplace injuries and deaths.
'"One of the first acts of the O'Farrell government was to undermine workplace
safety and tip the balance in favour of big businesses," he said.
safety and tip the balance in favour of big businesses," he said.
"All WorkCover prosecutions are in limbo."
Mr Daley accused the Finance and Services Minister, Greg Pearce, of
political interference.
political interference.
But Mr Pearce denied he gave a ministerial directive to WorkCover to
adjourn any particular cases before the Industrial Court of NSW.
adjourn any particular cases before the Industrial Court of NSW.
Greens MP David Shoebridge said the government was defying the
Parliament by making the new safety laws retrospective in practice.
He said WorkCover prosecutors should be free to do their job without any
political interference.
Parliament by making the new safety laws retrospective in practice.
He said WorkCover prosecutors should be free to do their job without any
political interference.
He said there would be far fewer successful prosecutions than there were
under the previous law, which would impact on work safety.
under the previous law, which would impact on work safety.
"Tougher occupational health and safety standards were set in law until
the end of 2011," he said. "WorkCover is ignoring this and delivering
for the Coalition's friends in industry.
the end of 2011," he said. "WorkCover is ignoring this and delivering
for the Coalition's friends in industry.
"If an employer breached a safety standard they should face the full
consequences, not be given a get-out-of-jail-free card by the O'Farrell
government.
consequences, not be given a get-out-of-jail-free card by the O'Farrell
government.
"The minister must immediately rescind this directive from WorkCover
and allow prosecutors to do their job free from political interference."
and allow prosecutors to do their job free from political interference."
One Sydney barrister, who did not wish to be named, said he was
involved in three sentencing matters on Monday and all of them were
adjourned because WorkCover was conducting an internal review of
cases brought under the Occupational Work and Safety Act 2000.
involved in three sentencing matters on Monday and all of them were
adjourned because WorkCover was conducting an internal review of
cases brought under the Occupational Work and Safety Act 2000.
"Nobody seems to know exactly what is going on," he said.
"It has a bit of a smell about it, suggesting they are having a secretive
review with the idea of withdrawing all the prosecutions under the 2000 act.
review with the idea of withdrawing all the prosecutions under the 2000 act.
"If they go down that path, then they are going to usurp the intent of the
legislation. We are hearing they are reviewing the cases and testing
them against what the current act requires."
legislation. We are hearing they are reviewing the cases and testing
them against what the current act requires."
Mr Pearce yesterday said the Crown Solicitor had been asked to seek
the advice of senior counsel on current prosecutions before the courts.
the advice of senior counsel on current prosecutions before the courts.
WorkCover had sought adjournments in a number of cases, pending
advice from the Crown Solicitor.
advice from the Crown Solicitor.
"This situation is not without precedent," Mr Pearce said, referring to a
High Court case.
High Court case.
In 2009, the Kirk Group challenged the way the Industrial Court of New
South Wales interpreted the Occupational Health and Safety Act.
South Wales interpreted the Occupational Health and Safety Act.
Mr Pearce said that, in 2010, a judgment upheld the appeal in damning
terms.
terms.
The High Court was particularly critical of the legislation and its application
at that point in time especially the reverse onus of proof and the deemed
directors' liabilities provisions.
at that point in time especially the reverse onus of proof and the deemed
directors' liabilities provisions.
"Importantly, back in 2010, WorkCover, as a result of the Kirk decision and
on the advice of senior counsel and with the knowledge of the then minister
Daley reviewed all prosecutions before the courts to determine whether
any amendments to the charges were required.
on the advice of senior counsel and with the knowledge of the then minister
Daley reviewed all prosecutions before the courts to determine whether
any amendments to the charges were required.
"At the time, amendment applications were made in a significant
proportion of cases which were the subject of that review," he said.
proportion of cases which were the subject of that review," he said.
Read more: http://www.smh.com.au/nsw/workcover-halts-prosecutions-to-clarify-new-law-20120224-1truu.html#ixzz1nIDscSyU
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