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[2026] NSWCCA 34
General information, not legal advice.
Court of Criminal Appeal (NSW)
2026-04-10
Mitchelmore JA at [1]Kirk JA at [2]R A Hulme AJ at [143]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Deemah Stone Pty Ltd v SafeWork NSW [2026] NSWCCA 34
Hearing dates: 8 October 2025
Date of orders: 10 April 2026
Decision date: 10 April 2026
Before: Mitchelmore JA at [1]
Kirk JA at [2]
R A Hulme AJ at [143]
Decision: (1) Grant leave to appeal.
(2) Appeal dismissed.
Catchwords: CRIME — appeals — interlocutory appeal — doubts as to desirability of determining limitation questions in advance of trial
CRIME — continuing offences — amorphous nature of term “continuing offence” — categories of continuing offence — relevance of issues of duplicity, double jeopardy, and limitation periods — nature of offence is an issue of legislative intention and facts of case — broad statements as to correct approach of limited utility — considerations relevant to characterisation exercise
EMPLOYMENT AND INDUSTRIAL LAW — work health and safety — offences — characterisation of offence against ss 19(1) and 33 of Work Health and Safety Act 2011 (NSW) — distinct offence may be committed whenever duty not complied with at any time “while the workers are at work in the business or undertaking”
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 2(1), 5F
Criminal Procedure Act 1986 (NSW), ss 156, 247G, 247W
Explanatory Memorandum – Model Work Health and Safety Bill (as at 23 June 2011)
Factory and Workshop Act 1901 (UK), s 10
Interpretation Act 1984 (WA), s 71(1)(e)
Protection of the Environment Operations Act 1997 (NSW), s 64
Work Health and Safety Act 2011 (NSW), ss 3, 17, 18, 19, 30, 32, 33, 191, 193, 195, 197, 211, 215, 229B, 232, 233, 242A, 242B, 242C, 242D
Work Health and Safety Act 2011 (Qld), ss 19, 33
Work Health and Safety Regulation 2017 (NSW), cl 368; sch 14
Cases Cited: Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276
Burton v R [2024] NSWCCA 213
Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36
Cook v Cook (1923) 33 CLR 369; [1923] HCA 57
Cox v Ketchell [1973] Tas SR 33
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
Environment Protection Authority v Alkem Drums Pty Ltd [2000] NSWCCA 416
Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79
Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449
Happy Cruising Pty Ltd v Magistrates Court of Western Australia [2025] WASCA 106
Hodgetts v Chiltern District Council [1983] 2 AC 120
Hunter v City of Joondalup [2015] WASC 444; (2015) 257 A Crim R 299
Ingamells v Petroff (1934) 50 CLR 451; [1934] HCA 8
J Robins & Sons Ltd v Maloney [No 2] [1935] AR (NSW) 155
Jones v Lorne Saw Mills Pty Ltd [1923] VLR 58
Joseph v Worthington [2018] VSCA 102; (2018) 272 A Crim R 292
Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263; (2020) 247 LGERA 1
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Leydon v Forrest (1980) 23 SASR 364
Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
Maules Creek Coal Pty Ltd v Environmental Protection Authority (2023) 112 NSWLR 507; [2023] NSWCCA 275
Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105; (2024) 332 IR 365
R v Chertsey Justices, Ex parte Franks [1961] 2 QB 152; [1961] 2 WLR 442
R v Hamzy (1994) 74 A Crim R 341
R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd [1965] VR 615
R v Industrial Appeals Court; Ex parte Circle Realty Pty Ltd [1980] VR 459
Sloggett v Adams (1953) 70 WN (NSW) 206
Solicitor to the Board of Trade v Ernest [1920] 1 KB 816
Verney v Fletcher [1909] 1 KB 444
Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55
Welsh v Cornfoot [1973] VR 21
Williamson v Betterlay Brick and Block Laying Pty Ltd (2020) 3 QR 594; [2020] QCA 52
Category: Principal judgment
Parties: Deemah Stone Pty Ltd (Applicant)
SafeWork NSW (Respondent)
Representation: Counsel:
R Pontello SC and P Barry (Applicant)
R Ranken SC and P English (Respondent)
Solicitors:
Lionheart Lawyers (Applicant)
Department of Customer Service (Respondent)
File Number(s): 2023/00432502
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant carried on a business which included the production of manufactured stone products. The dust produced in the manufacture process – respirable crystalline silica – is dangerous to humans as a potential cause of dust diseases. The respondent charged the applicant with one contravention of s 33 of the Work Health and Safety Act 2011 (NSW) (WHS Act). That section provides that a person commits a “Category 3 offence” if the person “has a health and safety duty” and “fails to comply with that duty”. One such “health and safety duty” is identified in s 19(1) of the WHS Act, which imposes a duty of care on a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of various types of workers while the workers are at work in the business or undertaking. The Work Health and Safety Regulation 2017 (NSW) (WHS Regulation) makes provision for certain specific precautions to be taken in work involving hazardous chemicals, of which crystalline silica is one.
Section 191 of the WHS Act empowers SafeWork inspectors to issue an improvement notice (IN) if the inspector reasonably believes that a person is contravening a provision of the Act, or has done so in circumstances that make it likely that the contravention “will continue or be repeated”. The notice may require the person to remedy the contravention, prevent a likely contravention, or remedy the things or operations causing the actual or likely contravention.
On 10 May 2019 a SafeWork inspector attended the applicant’s premises (the first 2019 inspection) and formed the view that contraventions of the WHS Act and WHS Regulation had occurred. The inspector served four INs on the applicant, two of which are said to be relevant in this matter. They identified two specific breaches: not providing health monitoring; and not having provided proper information and training to workers in relation to respiratory protective equipment (especially training about proper fitting of such equipment). The inspector visited Deemah’s premises again on 23 August 2019 and was satisfied that the contraventions in these two INs had been rectified (the second 2019 inspection). Inspections also occurred in 2020 and 2021.
On 21 February 2022 two SafeWork inspectors attended the applicant’s premises (the 2022 inspection). They made observations concerning what masks were permitted to be worn by workers while doing particular tasks, and the accumulation of dust near the water filtration system. Three INs were issued in relation to these observations, requiring remedial action. By 13 April 2022 one of the inspectors was satisfied that the INs had been complied with. Nevertheless, on 29 November 2023 the respondent filed a summons in the District Court charging Deemah with an offence under s 33 of the WHS Act by having breached its health and safety duty under s 19(1) in relation to what had been observed in the 2022 inspection.
The applicant filed a notice of motion seeking that the proceedings be dismissed in advance of the trial on the basis of being time-barred. Section 232(1) of the WHS Act relevantly provides that proceedings for an offence against the Act may be brought within 2 years after the offence first comes to the notice of the regulator. The applicant’s contention was that following the first 2019 inspection, on 10 May 2019, the respondent was on notice of a contravention, being the applicant’s failure to implement and enforce a safe work system to reduce workers’ exposure to airborne RCS when they were required to cut, grind or polish stone products. The applicant said that that was the very same contravention for which it was now being prosecuted. The proceedings were time barred because commenced more than two years after 10 May 2019.
The primary judge rejected the applicant’s motion. The applicant sought leave to appeal, raising one ground of appeal:
The primary judge erred in determining the proceedings were commenced within time on the basis that two visits by the regulator to the applicant's premises, one in 2019 and a second in 2022, disclosed distinct and different risks and breaches of the applicant’s work health and safety duty on each occasion.
In his judgment the primary judge described the offence at issue as a “continuing offence”. That characterisation was adopted by both parties in the hearing of the appeal.
The Court (Kirk JA, Mitchelmore JA and R A Hulme AJ agreeing) held, granting leave to appeal and dismissing the appeal:
(1) The notion of a “continuing offence” can have significance in a number of ways and is rather amorphous. Four broad and potentially overlapping categories can be distinguished ([49]):
(1) An offence where it is necessary to do something by a particular time, and where there is no ongoing breach occasioned by failing to take that action after that time (a once and for all offence);
(2) An offence which imposes an ongoing obligation, which may only come to apply from a specified time, but where only one offence is committed for failing to comply with the obligation;
(3) An offence which is committed on each occasion or for each period of time during which a particular act or omission occurs (including failing to comply with an obligation), where the activities in question may be a part of an ongoing course of conduct;
(4) An offence which is part of a course of conduct where the law treats the offence as occurring each day (or other specified period of time) on which the conduct occurs, such that there are repeated multiple offences.
(2) The first category is not a continuing offence in any sense. Nevertheless, an issue often arises whether the relevant obligation is once and for all (so as to fall within the first category) or is continuing (so as to fall within the second or third): [50].
(3) The second category involves a continuing offence in the sense that there is an ongoing obligation to do something across a period of time but where a failure to do that thing is only one offence. Such offences might involve a specified temporal element of having to do something by a particular time, as for the first category, but in contrast to that category that element sets only the start and not the end point of the duty to comply: [51]. Broad interpretive presumptions are unlikely to be of much assistance in relation to the disparate statutes for which the question of whether an offence falls into the first or second category arises. The key question is whether the lawmaker is likely to have intended the obligation to be an ongoing one: [58]-[82]; [105(8)(a)].
Cook v Cook (1923) 33 CLR 369; [1923] HCA 57; Environment Protection Authority v Alkem Drums Pty Ltd [2000] NSWCCA 416; Sloggett v Adams (1953) 70 WN (NSW) 206; Jones v Lorne Saw Mills Pty Ltd [1923] VLR 58; R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd [1965] VR 615; Welsh v Cornfoot [1973] VR 21; Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276; Leydon v Forrest (1980) 23 SASR 364; Hunter v City of Joondalup [2015] WASC 444; (2015) 257 A Crim R 299; Joseph v Worthington [2018] VSCA 102; (2018) 272 A Crim R 292, discussed.
Ingamells v Petroff (1934) 50 CLR 451; [1934] HCA 8; Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449; Cox v Ketchell [1973] Tas SR 33; R v Industrial Appeals Court; Ex parte Circle Realty Pty Ltd [1980] VR 459, referred to.
(4) An offence in the second category could only be prosecuted once, subject to any statutory provision to the contrary. Any subsequent prosecution for the same offence relating to the ongoing non-compliance would be answered by pleas of autrefois convict or acquit: [80]-[81]. This notion of double jeopardy may militate one way or the other in respect of the lawmaker’s intention, in particular in relation to whether the offence falls within the first or second category on the one hand (each of which involves one offence) or the third or fourth categories on the other (which involve distinct offences for different conduct or different days): [105(8)(b)].
Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79; Jones; Barelli’s, referred to.
(5) The third category may also involve an ongoing breach of a continuing obligation. In that sense this category, too, can encompass “continuing offences”. The key difference from the second category is that there is not just one offence committed. Rather, there may be different breaches – potentially constant breaches – at different times. Those different breaches might nevertheless potentially be charged as one offence, falling within exceptions to the principle of duplicity: [52]. Examples of such offences in this category are where the acts or omissions in question are part of something involving a course of conduct, such as an offence involving carrying on a particular type of business. An issue that may arise is considering whether the offence in question involves acts or omissions which are correctly regarded as distinguishable events, so as to constitute distinct offences, or relates to a course of conduct. The characterisation issues that arise involve close consideration of the nature of the statutory offence and of the facts in question: [83]-[84].
Bathurst City Council; Verney v Fletcher [1909] 1 KB 444; Happy Cruising Pty Ltd v Magistrates Court of Western Australia [2025] WASCA 106; Solicitor to the Board of Trade v Ernest [1920] 1 KB 816, discussed.
(6) The fourth category, like the second and third, can also involve a course of conduct. It is sometimes referred to as a type of continuing offence but actually involves repeated offences, typically on a daily basis: [53]. For some offences the statute will provide for an ongoing daily penalty. However, that the statute provides for some further penalty for each subsequent day the offence occurs does not necessarily indicate that the lawmaker intends that a proscribed activity in a course of conduct be a distinct offence each day. Such a provision could also be understood as simply indicating that the total maximum penalty that may be imposed for an offence committed over a number of days is a function of how many days the contravention continued, but where the offence could be regarded as one offence across those days: [100]-[102]; [105(4)].
J Robins & Sons Ltd v Maloney [No 2] [1935] AR (NSW) 155; Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204; R v Chertsey Justices, Ex parte Franks [1961] 2 QB 152; [1961] 2 WLR 442; Hodgetts v Chiltern District Council [1983] 2 AC 120; Hunter, discussed.
(7) Some (overlapping) considerations which are relevant to the characterisation exercise can be identified from the cases discussed: [105]:
(1) The precise conduct the offence proscribes;
(2) The fact that a time for compliance is specified does not necessarily mean the obligation to comply ends at that time;
(3) Whether it is likely to be in the power of offenders to remedy the situation, at least for a time;
(4) Whether, and how, a penalty is stated for each day the offence continues;
(5) The nature of available defences;
(6) The way in which the statute has created other offences;
(7) Coherence within the statutory scheme and the availability of alternative means of achieving the claimed purpose;
(8) Purposive considerations.
(8) Taking account of considerations of text, context and purpose, the better view of ss 19(1) and 33 of the WHS Act is that a distinct offence may be committed whenever the duty is not complied with at any time “while the workers are at work in the business or undertaking”. To that extent it falls within the third category identified above, and it does not fall within the second category in the sense of there being only one contravention of a continuing obligation: [108]-[123]. The nature of the offence means that the regulator may be able to frame a charge in various ways: [124].
Verney; Williamson v Betterlay Brick and Block Laying Pty Ltd (2020) 3 QR 594; [2020] QCA 52; Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105; (2024) 332 IR 365; Happy Cruising, discussed.
(9) Given this construction, any offences by the applicant which came to the respondent’s attention in 2019 or 2020 were necessarily distinct from those which came to its attention in 2022. They occurred at a different time, relating to the circumstances as they existed at that time: [125]-[127].
(10) Even if this characterisation of the offence is incorrect, the applicant’s argument is self-defeating. If the offence was a continuing one in the sense the applicant asserts then by definition the obligation continues. On the approach applied in analogous cases, time would run in an “extensible” way and the limitation period would not bite for so long as the offence continued: [128]-[132].
Bathurst City Council; Prime Marble, referred to.
(11) Even if the offence was a “continuing” one in the sense invoked by the applicant, and even if that did not have the consequence of time running in an “extensible” way, the applicant’s argument proceeded on the basis of treating both the risks and the acts and omissions responding to the risks at a high, and unwarranted, level of generality. The focus must be on the particular time and circumstances in which hazards or risks exist, and how they can and should be responded to: [133]-[138]. Moreover, even insofar as there is some overlap with the 2019 concerns, that the contravening conduct has occurred before does not mean it is the same conduct and the same contravention: [139]. The primary judge was therefore correct to conclude that the offence charged related to distinct breaches in comparison to the offence said to have been identified in 2019.
MITCHELMORE JA: I agree with Kirk JA.
KIRK JA: The applicant in this matter, Deemah Stone Pty Ltd, carries on a business which includes the production of manufactured stone products. The dust produced in the manufacture process is dangerous. The respondent, SafeWork NSW, has commenced a prosecution of Deemah in the District Court for a contravention of s 33 of the Work Health and Safety Act 2011 (NSW) (WHS Act) by reference to the duty identified in s 19(1) of the Act. Deemah filed a notice of motion seeking that the proceedings be dismissed on the basis that the two year limitation period with respect to the offence, provided for in s 232 of the WHS Act, had expired prior to the proceedings being commenced. The motion was dismissed by the primary judge, Russell DCJ: SafeWork NSW v Deemah Stone Pty Ltd [2025] NSWDC 248 (J).
Deemah has sought leave to appeal from that decision pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), raising one ground of appeal:
The primary judge erred in determining the proceedings were commenced within time on the basis that two visits by the regulator to the applicant's premises, one in 2019 and a second in 2022, disclosed distinct and different risks and breaches of the applicant’s work health and safety duty on each occasion.
The appeal raises significant issues of principle about “continuing offences” and whether or not the offence at issue is such an offence. Leave to appeal should be granted. However, Deemah’s argument fails for three reasons and the appeal should be dismissed.
This judgment is structured as follows:
the procedure adopted below and leave to appeal (at [6]-[12]);
the legislative regime (at [13]-[24]);
background (at [25]-[42]);
“continuing offences” and limitation periods (at [43]-[105], relevant factors being summarised at [103]-[105]);
application of principles (at [106]-[140]);
conclusion and orders (at [141]-[142]).
The limitation period issue was raised in the Court below by Deemah filing a notice of motion seeking orders that the proceeding be dismissed with costs. Little attention seems to have been paid by the parties to the nature of the procedure being adopted (cf Criminal Procedure Act 1986 (NSW), ss 247G and 247W). Affidavits were read on both sides, without cross-examination. The issue before the Court seems to have been treated as though it were the determination on a final basis of a separate question. Yet in this Court both parties said that there had been no agreement in the proceedings below that the material provided to the Court encompassed the universe of potentially relevant evidence. If that was so, the proceeding would appear to have been more in the nature of a summary dismissal application in which, arguably, the burden of proof and persuasion would have been on the applicant for dismissal, Deemah.
These issues were not grappled with by the parties either in the Court below or in this Court. Nor was consideration given to the potential significance of what had been said, albeit in a civil context involving a damages claim, by four members of the High Court in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533; [1992] HCA 55:
We should … state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.
The specific point being made there related to the potential complexity of identifying when damage sufficient to trigger the limitation period was suffered. Underlying that point was recognition that the factual matters relating to limitation periods can be both complex and intimately connected with the substance of the legal claim at issue. In such cases courts should be wary of treating the issue as capable of being dealt with readily or efficiently in interlocutory applications. Doing so may also cut across later determination of factual issues in dispute on the prosecution.
There may be cases where it is in the interests of the parties and of justice that a limitation period issue be determined in advance. That may be so where the result (if the limitation applied) would be to end the prosecution, and if the relevant facts are confined and are not intimately intertwined with the substantive matters at issue. Yet merely because one party seeks a preliminary determination of the issue does not mean that that course should be adopted.
Deemah’s appeal is brought pursuant to s 5F(3) of the Criminal Appeal Act, which provides that a party to proceedings to which s 5F applies may appeal to this Court against an interlocutory judgment or order given or made in the proceedings if, relevantly, this Court gives leave to appeal. Section 5F(1) provides relevantly that the section applies to “proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court”. The proceedings in the District Court were not commenced by an indictment but by summons. That reflects the fact that s 229B of the WHS Act provided at the relevant time that, subject to an exception which does not apply here, proceedings for an offence against the Act or the regulations must be dealt with summarily before the Local Court or the District Court. However, the definition of “indictment” in s 2(1) of the Criminal Appeal Act states that it “includes any information presented or filed as provided by law for the prosecution of offenders”. It is presumably on that basis that the application is brought. SafeWork took no issue on the point and, in that context, it is not necessary to consider it further.
Principles relevant to the grant of leave under s 5F(3) were referred to in Maules Creek Coal Pty Ltd v Environmental Protection Authority (2023) 112 NSWLR 507; [2023] NSWCCA 275 at [73]-[77], and Burton v R [2024] NSWCCA 213 at [41]. The requirement of leave acts as an important barrier against the fragmentation and unnecessary delay of criminal proceedings. That is so even where the matter is not proceeding before a jury. Leave under s 5F(3) will not readily be granted.
In this case, however, significant issues of legal principle and public importance are raised. Those issues have broader significance than for the case at hand. It is in the interests of justice for leave to appeal to be granted. Doing so should not be taken to encourage the filing of motions seeking advance determination of limitation period disputes, nor applications for leave to appeal from such decisions.
SafeWork charged Deemah with one contravention of s 33 of the WHS Act (references here are to the Act as it stood at the time of the alleged offence, except where otherwise stated). That section provides that a person commits a “Category 3 offence” if the person “has a health and safety duty” and “fails to comply with that duty”. The maximum penalty at the time for an offence committed by a body corporate was 5,770 penalty units, where a penalty unit is an indexed amount starting from $100 in 2019-20 (see ss 242A-242D). One such “health and safety duty” (noting the definition in s 30) is identified in s 19(1), which is the duty invoked by SafeWork in the prosecution.
Section 19(1) provides:
19 Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
(a) workers engaged, or caused to be engaged by the person, and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.
17 Management of risks
A duty imposed on a person to ensure health and safety requires the person—
(a) to eliminate risks to health and safety, so far as is reasonably practicable, and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. …
18 What is “reasonably practicable” in ensuring health and safety
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about—
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
232 Limitation period for prosecutions
(1) Proceedings for an offence against this Act may be brought within the latest of the following periods to occur—
(a) within 2 years after the offence first comes to the notice of the regulator …
In 2025 the section was amended to give relevant courts a power to allow a prosecution to be brought after the limitation period had expired if satisfied that doing so is in the interests of justice. Those amendments were not in force when the limitation issue was addressed in the Court below.
It is relevant to note s 233, relating to multiple contraventions (noting that this encompasses the duty under s 19(1)):
233 Multiple contraventions of health and safety duty provision
(1) 2 or more contraventions of a health and safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.
(2) This section does not authorise contraventions of 2 or more health and safety duty provisions to be charged as a single offence.
(3) A single penalty only may be imposed in relation to 2 or more contraventions of a health and safety duty provision that are charged as a single offence. …
Part 10 of the Act is headed “Enforcement measures”. Division 1 deals with “improvement notices”. Section 191 provides that if an inspector reasonably believes that a person is contravening a provision of the Act, or has done so in circumstances that make it likely that the contravention “will continue or be repeated”, then the inspector may issue an improvement notice. The notice may require the person to remedy the contravention, prevent a likely contravention, or remedy the things or operations causing the actual or likely contravention. Failure to comply with the notice within the period specified is an offence under s 193.
Division 2 of Pt 10 empowers an inspector to issue a “prohibition notice” (s 195), which has the effect of prohibiting the carrying on of an activity if the inspector reasonably believes an activity is occurring or may occur at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard. Failure to comply is an offence under s 197. Under s 211 the regulator, after giving written notice, may take any remedial action it believes reasonable to make the workplace or situation safe if the recipient of the notice fails to take reasonable steps to comply with the notice.
Part 12 of the Act provides for internal and external review of decisions to issue, relevantly, improvement and prohibition notices.
Under s 215, in Div 6 of Pt 10, the regulator may apply to the District Court for an injunction compelling a person to comply with an improvement or prohibition notice or restraining them from contravening a notice. It may do so whether or not proceedings have been brought for an offence against this Act in connection with any matter in relation to which the notice was issued.
Part 11 of the WHS Act empowers the regulator to accept an enforceable undertaking from a person in connection with a matter relating to a contravention or alleged contravention of the Act. Accepting the undertaking precludes the person being prosecuted for the contravention but contravention of the undertaking is itself an offence, and SafeWork is also empowered to approach the District Court to seek an order directing the person to comply with the undertaking.
(1) Health monitoring records were not available and workers were not provided with health monitoring – s 19 of the WHS Act and cl 368 of the WHS Regulation.
(2) A hazardous chemical register containing current SDSs [ie safety data sheets] was not available – cl 346 of the WHS Regulation.
(3) Workers were not consulted regarding the risk of exposure to silica dust and no consultation records were available – s 47 of the WHS Act.
(4) Workers were not provided with RPE [ie respiratory protective equipment] fit tests – s 19 of the WHS Act.
Workers are at a significant risk to their health (eg. silicosis) from regularly working with stone products that involves tasks generating [RCS].
Workers were observed cutting, shaping, grinding or polishing of stone products.
You have not provided health monitoring for workers at significant risk of health [sic] from exposure to RCS, as per Schedule 14 of the WHS Regulation 2017.
The notice gave directions as to the remedial measures to be taken, which related to providing health monitoring consistently with the statutory scheme. The notice was dated 13 May 2019 and required that the contravention be remedied by 12 July 2019.
The second notice (IN 7-352997) was also issued on 13 May 2019, and again required remedial action by 12 July 2019. The identified contravention was:
Workers are exposed to a serious risk to their health and safety as they have not been provided with information, training and instruction on the proper use, wearing, storage and maintenance of personal protective equipment provided to prevent the risk of injury from exposure to [RCS].
The remedial action identified was providing workers with relevant information, training and instruction, and also that Deemah must “provide/conduct a fit-test to select appropriate personal protective equipment suitable for workers and for the purpose”.
The inspector then visited Deemah’s premises again on 23 August 2019 and was satisfied that the contraventions in these two INs had been rectified (the second 2019 inspection). He recorded Deemah’s compliance in SafeWork’s internal system.
Another inspection occurred on 13 November 2020 (the 2020 inspection). The SafeWork inspector observed that a “dry sweeper” machine was being used, with the result that clouds of silica dust were visible in the air. The inspector advised Deemah’s representative that the dry sweeper should be replaced with wet methods or vacuum cleaning. An IN (number 7-386244) was issued on 16 November 2020 requiring identified remedial action by 1 December 2020.
The inspector returned on 19 February 2021 and verified that the dry sweeper had been removed (the 2021 inspection). The inspector updated the respondent’s internal system to reflect that the identified contravention had been remedied.
(a) A worker with a beard was wearing a disposable P2 mask while cutting stone.
(b) A worker was wearing a surgical mask instead of a P2 mask while polishing stone.
(c) A significant amount of dust was on the floor near the water filtration system.
(d) The dust observed on the floor near the water recycling system was caused by spillages when workers replaced bags containing dust/slurry.
On 29 November 2023 SafeWork filed a summons in the District Court alleging that Deemah had breached its health and safety duty under s 19(1) of the WHS Act at its premises, contrary to s 33 of the Act. The offence is alleged to have been committed from 20 February 2021 to 21 February 2022. The starting date of 20 February 2021 was the day after the 2021 inspection. The end date was the day of the 2022 inspection. Whether SafeWork has evidence to make out the alleged breach for the entire period charged is not currently at issue.
The Summons particularised Deemah’s failure to comply with its s 19(1) duty as follows:
The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in that it failed to take one or more of the following measures, each of which was reasonably practicable to minimise the risk:
(a) Develop, implement and enforce a safe work system for the reduction of the exposure of workers to the inhalation of airborne RCS dust while performing the Tasks [being to cut, grind or polish stone products at Deemah’s premises], including:
(i) the provision of appropriate respiratory protection equipment (RPE);
(ii) the clean-up and disposal of dust and/or slurry created while performing the Tasks;
(b) Develop, implement and enforce a Respiratory Protection Program for workers undertaking the Tasks, including:
(i) Selection, provision, and use of appropriate RPE conforming to ASINZS 1716:2012 Respiratory Protection Devices;
(ii) requiring 'fit testing' for the make and model of RPE provided;
(iii) training in the selection, use, maintenance, and storage of the RPE provided;
(iv) A clean shaven policy mandating the need to be clean shaven for close-face fitting respiratory protection;
c) Develop, implement and enforce a documented safe work procedure for performing the Tasks that specified the use of the control measures particularised in (a) and (b) above;
d) Putting systems in place to perform routine checks of the workplace to ensure that control measures particularised in (a) and (b) above were being utilised correctly;
e) Develop, document and implement a Personal Exposure Monitoring program in respect to levels of exposure to RCS for workers undertaking the Tasks;
f) Develop, document and implement a Health Surveillance and Monitoring program with … respect to crystalline for workers undertaking the Tasks;
g) Provide information, instruction and training to workers in:
(i) the risks associated with the cutting of manufactured stone and natural/other stone products containing crystalline silica and airborne RCS exposure;
(ii) the use of control measures specified in (a) to (b), and above.
Deemah sought dismissal of the proceedings by notice of motion. The primary judge rejected the application. Deemah’s contention was that following the first 2019 inspection, on 10 May 2019, SafeWork was on notice of a contravention, being Deemah’s failure to implement and enforce a safe work system to reduce workers’ exposure to airborne RCS when they were required to cut, grind or polish stone products. It said that that is the very same contravention for which it is now being prosecuted. The proceedings were commenced more than two years after 10 May 2019. They were therefore time-barred. Deemah’s focus was on the 2019 inspection. Similarly, in this Court Deemah did not place any reliance on the 2020 or 2021 inspections.
Deemah invoked the judgment of this Court in Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105; (2024) 332 IR 365. There, a SafeWork inspector had attended Prime Marble’s premises in 2017 and found that exposure to airborne RCS was several times higher than the acceptable level, such that the workers “may be at risk of serious health effects if not adequately protected” (see at [57]), where that risk was to “all workers” (see at [47]). Two employees of Prime Marble, Mr Zhang and Mr Geng, died from silicosis in 2020. SafeWork only learned of those deaths in 2021. In 2023, SafeWork commenced proceedings against Prime Marble alleging that Prime Marble had failed to comply with a duty under s 19(1) of the WHS Act, with the result that each of Mr Zhang and Mr Geng had been exposed to a risk of death or serious injury. That was alleged to constitute two offences under s 32 of the WHS Act. That provision is identical to s 33, save that it includes an additional element that the failure to comply with a health and safety duty “exposes an individual to a risk of death or serious injury or illness”. Importantly, the two offences were said to have occurred in identified periods in which the two workers were exposed to such a risk, where those periods ended more than two years prior to the commencement of the proceedings (the details of the charges are set out in the first instance judgment: SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17 at [2]-[10]).
This Court held that in applying the limitation period in s 232(1)(a) the relevant inquiry must be directed to the question of when SafeWork first gets notice of the completed offence alleged in the summons commencing the proceedings. The s 32 offence in the WHS Act is complete when the alleged failure exposes an individual to a risk of death or serious injury or illness. That element relates to the exposure to the risk; it does not require that the risk has come home such as to have caused death or serious injury or illness. Thus the focus relevantly is on when the existence of the exposure of the workers to the risk had come to the attention of SafeWork (see at [33], [42], [48], [49], [50]). SafeWork had had notice of the unsafe airborne RCS concentrations since 2017, that being a date within the periods charged in the two prosecutions. That constituted notice of all workers being exposed to the relevant risk. As such, the prosecution was out of time.
The primary judge in this case described the offence at issue as a “continuing offence” (at [3]). That characterisation was adopted by both parties in the hearing of the appeal.
The notion of a “continuing offence” can have significance in a number of ways. It often arises, as in this matter, in cases where there is an applicable limitation period and it is necessary to be precise about when the offence commenced or ended (combined, sometimes, with consideration of when the offence came to the notice of the relevant regulator).
It can have significance where a defendant has already been prosecuted for the offence and the question arises whether a new prosecution for that offence can be answered by the double jeopardy pleas of autrefois convict or acquit (being pleas recognised in s 156 of the Criminal Procedure Act).
It can also arise when considering issues of whether more than one offence was committed for the purposes of arguments of duplicity. In that regard, “the general rule of our legal system is still this: that a prosecutor may not ordinarily charge in one count of an indictment, information or complaint two or more separate offences provided by law”: Walsh v Tattersall (1996) 188 CLR 77 at 107; [1996] HCA 26. As this Court explained in Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263; (2020) 247 LGERA 1 at [34], two notable exceptions to that principle have been recognised:
The first is where the alleged offence is of a continuing nature, such as maintaining a brothel or carrying on a business without a statutory licence. In such cases conduct that continues over an extended period, any part of which would constitute the offence, may all be charged in one count. The second exception is that a single charge may be laid in respect of multiple acts that may each individually constitute a separate offence if those acts are sufficiently connected with each other to amount to a single compendious instance of offending.
The term “continuing offence” is rather amorphous: note Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 85. As Cussen J said in Jones v Lorne Saw Mills Pty Ltd [1923] VLR 58 at 66, “in some of the authorities the phrases ‘continuous offence’ and ‘continuing offences’ are used loosely, and applied to cases where there is repetition rather than continuance”.
As shall be seen, a number of cases have sought to differentiate categories of offence in this area: eg J Robins & Sons *Ltd v Maloney [*No 2] [1935] AR (NSW) 155 at 157-158; Sloggett v Adams (1953) 70 WN (NSW) 206 at 208; R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd [1965] VR 615 at 620. There are dangers in seeking to be categorical: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [89]. Nevertheless, in this area it is useful to seek to draw out broad classes of offence in order to throw some light on the elusive issues and ideas that are at play. That is not to suggest that these categories are all-encompassing or strictly distinct. Some offences might fall into more than one category depending on how they are expressed and the particular circumstances charged. It is always the terms of the statute which must be the relevant starting point, not taxonomy (ibid).
The following broad and potentially overlapping categories can be distinguished:
an offence where it is necessary to do something by a particular time, and where there is no ongoing breach occasioned by failing to take that action after that time (a once and for all offence);
an offence which imposes an ongoing obligation, which may only come to apply from a specified time, but where only one offence is committed for failing to comply with the obligation;
an offence which is committed on each occasion or for each period of time during which a particular act or omission occurs (including failing to comply with an obligation), where the activities in question may be a part of an ongoing course of conduct;
an offence which is part of a course of conduct where the law treats the offence as occurring each day (or other specified period of time) on which the conduct occurs, such that there are repeated multiple offences.
The first category is not a continuing offence in any sense. Nevertheless, an issue often arises whether the relevant obligation is once and for all (so as to fall within the first category) or is continuing (so as to fall within the second or third).
Many offences require something to be done by a specified date, time or event. A simple and common example is where some positive action is required – eg pay a wage, or supply a document, or remove a hazardous material – failing which an offence is committed. An inherent feature of such an offence is that some time period for taking that action must be expressed or implied (eg within a reasonable time). That being so, the mere fact that some time period for compliance is stated does not necessarily mean that the offence is only committed at the precise instance when that period expires. The lawmaker may well have intended that the obligation to do the action continue until the action is taken, such that the person continues to breach the law after the point when the offence was first committed. Having such an intention would generally presuppose that it was within the power of the person to remedy the contravention for at least some time after it was first committed.
In Sloggett, at 208, Street CJ referred to what I have labelled the first category as offences “committed once and for all at a specified time”. His Honour explained:
Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences.
There is some ambiguity in the phrase “liable day by day”, namely whether it suggests that there is just one ongoing offence (the second category identified), or an offence that is ongoing and committed continually (falling within the third category), or repeated distinctly each day (the fourth category).
His Honour then quoted an earlier case suggesting that the “test” to distinguish the two categories was “whether its gravamen is to be found in something which the offender can, at will, discontinue” (ibid). That statement points to the relevance of the offender being able to remedy the contravention.
The offence in question in Sloggett involved complying with a notice to eradicate noxious weeds within a certain time. The notice was never complied with. A prosecution was brought more than six months – being the applicable limitation period – after the time for compliance had expired. The Chief Justice took the view that when that time expired “the offence was complete and concluded, and thereafter existed only in the past” (ibid). Similarly, Owen J said that where “the notice sets the time for the doing of the act which is required to be done, the offence is ... committed once and for all if that act is not done within the time set” (at 208-209). The offence was thus held to fall into the first category I have identified, and the prosecution was statute-barred.
The manner in which the Court considered whether the offender could discontinue the conduct so as to bring themselves into compliance with the law was, on its face, somewhat literalistic. Self-evidently an offender could not do so in such a way as to avoid any offence having been committed. Nevertheless, they could discontinue their ongoing omission by dealing with the noxious weeds so as to bring themselves into compliance with the law. The Court’s approach was somewhat circular, as it tended to assume that the lawmaker would not have intended there to be a continuing offence after the first point it had been committed. The Chief Justice did take account of one purposive consideration (as his Honour perceived it), being that if the prosecutor’s argument was right that the offence was a continuing one then “the defendant could be prosecuted at any time, years afterwards, for this offence, and a successor in title would also be liable to the same risk” (at 208).
Other cases have taken a broader approach. That is so in particular with respect to employers’ obligations to pay their employees or otherwise to do things with respect to their employees. Barelli’s typifies this line of authority. An employer was prosecuted for not paying the correct wages to an employee. The wages were required to be paid weekly by 5.30pm each Thursday. A six month limitation period applied. The prosecution was commenced more than six months after the wage payment in question had been due. The defendant’s reliance on the limitation period was rejected by the Full Court of the Victorian Supreme Court. Justices O’Bryan and Gillard distinguished different kinds of offence as follows (at 620, emphasis added):
A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed. In such a case in measuring the period of limitation, if one is applicable, the right to lay an information is not barred if the breach has continued up to the day the information was laid or if the breach was cured before the information was laid, time counts from the day when the obligation was satisfied.
The first kind of offence just described equates to either the third or fourth categories identified above. Their Honours’ second kind of offence equates to the second category identified above.
Their Honours went on to distinguish cases falling into the first category I have identified. They made the following point (at 621), which can be seen as something of a (correct) riposte to the approach taken in Sloggett: “the mere fact that a time is fixed by the determination for the doing of the act does not necessarily mean that the obligation created by the determination or by the statute is spent at the expiration of that time”. They then said this with respect to the offence in question (at 622):
[W]e find it impossible to infer from the combined operation of the statute and the determination that the statutory obligation to pay is spent if payment is not made at the time fixed by the determination. An offence under s 205 is complete if payment is not then made, but the offence of contravening or failing to comply with the obligation to pay money is one in which, to borrow the words of Cussen, J, in Jones v Lorne Saw Mills Pty. Ltd., “The time element is extensible”.
Implicit within this analysis is a purposive point, that is, that the Parliament is likely to have intended that the obligation to pay certain wages be a continuing one so as to achieve the aim of due wages actually being paid to workers. It is also apparent that their Honours’ view was that only one offence was committed (“though constituting one crime only”). That offence could be regarded as complete, such that it was capable of prosecution, at any time after the occasion for payment had passed. But it was not complete in the sense that the obligation to comply had come to an end; the obligation was ongoing. Justice Smith engaged in a similar analysis (at 623).
Jones, decided four decades earlier than Barelli’s, was to like effect. It related to a failure to pay a minimum rate of pay in a particular period of time. Justice Cussen expressly adopted a purposive approach by considering the objects of the Act under which the relevant industrial award had been made (at 65). His Honour’s analysis was referred to with approval by Starke J in Ingamells v Petroff (1934) 50 CLR 451 at 459; [1934] HCA 8.
Another case involving a payment obligation, outside the employment sphere, was Cook v Cook (1923) 33 CLR 369; [1923] HCA 57. A provision created an offence of disobeying a court order to pay marital maintenance. The husband had stopped paying on 5 January 1922 and the wife filed an information on 15 February 1923 to enforce obedience. There was a 12 month limitation period. The High Court held that the offence could be prosecuted despite being commenced more than 12 months after the disobedience had started. Chief Justice Knox and Starke J said that “the disobedience of the maintenance order is a continuing act giving a cause of complaint de die in diem [ie from day to day]” (at 375). Although that statement might be read as meaning a new and distinct offence occurred each day (so as to fall within the fourth category I have identified), the reference to “a continuing act” suggests their Honours saw it as one ongoing obligation. That was how O’Bryan and Gillard JJ understood the judgment in Barelli’s at 622.
Justice Isaacs, with whom Rich J relevantly agreed, also seemed to treat the offence in that way, saying: “[d]isobedience is a continuing offence”; it was “not like some offence which, once committed, is complete and ended, and exists only in the past”; and it “resembles a debt which, though payable a month ago, is still payable” (at 381). His Honour did say that “for the six weeks outside the twelve month period a separate penalty of £5 could not be imposed” (ibid). That statement might suggest that a distinct offence was committed each day (falling within my fourth category), or that it was taken to be committed constantly from time to time (falling within the third). The point was not further explored.
I am unable to conclude that [the limitation provision] would have been drafted as it has been if it were intended to get rid of this line of authority but consider that it would have expressly provided that the time limit for taking proceedings in respect of a continuing act or breach would commence from the date when it first arose or was committed and conclude on the expiration from that date of the period of limitation. This it has not done. One is not justified in putting words into an Act of Parliament which the legislature has not put in, to get rid of a line of authority of which the legislature must be deemed to have known.
I doubt that this interpretative approach, involving a version of the presumption of re-enactment, will be of much assistance in relation to the disparate statutes for which the question arises.
An opposite view, again overly broad, was expressed by Lush J in Welsh v Cornfoot [1973] VR 21. His Honour held that certain company law obligations to file company returns within a given time were not continuing offences. His Honour said that the authorities cited to him suggested that “as a general rule when a time for compliance with a statutory requirement is fixed, the offence of non-compliance is complete at the end of that time and the offence is not a continuing one” (at 26). That view is undermined by his Honour’s own reference to Barelli’s and J Robins & Sons (discussed below), and his correct acknowledgement that the authorities “show that the relevant legislation must be analysed in every case” (ibid).
A further key part of the reasoning of Lush J was that the offence in question had both a stated penalty along with a stated “default penalty”. The statute provided that a person convicted of such an offence would be guilty of “a further offence … if the offence continues after he is so convicted and liable to an additional penalty for each day during which the offence so continues”. His Honour considered that suggested the original offence was not a continuing one (at 25).
A majority of the Full Court of the Supreme Court of South Australia considered that another company law provision requiring a form to be filed within a particular time was an ongoing, not a once and for all, obligation: Leydon v Forrest (1980) 23 SASR 364. That one member of the Full Court took the contrary view, in agreement with the trial judge (for a 2-2 split overall), illustrates that these issues can be finely balanced. The relevant provision required company officers, within 14 days of a winding up order being made, to submit a statement as to the company’s affairs to the liquidator. A further subsection provided that “[e]very person who without reasonable excuse makes default in complying with the requirements of this section shall be guilty of an offence against this Act”. Chief Justice King, in the majority, made a generic statement to the opposite effect of what had been said by Lush J in Welsh, saying (at 375): “In general, it is to be expected that a failure to do some act which the person is required by law to do will be a continuing offence”. Again, I doubt that such broad presumptive statements are helpful.
Other aspects of the majority’s reasoning in Leydon are noteworthy. That the offence was subject to a reasonable excuse provision was seen as significant. As Sangster J indicated, a person might have a reasonable excuse for some portion of time but then commit an offence when that excuse no longer applied (at 380, see also King CJ at 372 and 376). Relatedly, Sangster J said of the availability to the liquidator of a statement of the company’s affairs that “its availability to the liquidator at some time is more important than its availability within fourteen days or any other precise time” (at 380). That is a useful identification of an aspect of the likely purpose of Parliament in imposing the requirement. Put another way, the mischief sought to be addressed was of such an ongoing nature that it was likely intended that the obligation continue.
Examples of offences in this category are where the acts or omissions in question are part of something involving a course of conduct, such as an offence involving carrying on a particular type of business. An issue that may arise is considering whether the offence in question involves acts or omissions which are correctly regarded as distinguishable events, so as to constitute distinct offences, or relates to a course of conduct. An offence of drug supply is something that might involve one act of supply or a number of acts. Prima facie each act of supply would be a separate offence, but more than one act might be charged as one offence subject to complying with principles relating to duplicity: see eg R v Hamzy (1994) 74 A Crim R 341. As always, the characterisation issues that arise involve close consideration of the nature of the statutory offence and of the facts in question.
Verney v Fletcher [1909] 1 KB 444 concerned the Factory and Workshop Act 1901 (UK), an industrial safety law. Section 10 required that “[e]very fly-wheel [of a certain kind] must be securely fenced”. Another provision stated that if a factory or workshop was not kept in conformity with the Act then the occupier “shall be liable to a fine not exceeding ten pounds and, in the case of a second or subsequent conviction in relation to a factory within two years from the last conviction for the same offence, not less than one pound for each offence”. A limitation provision required that a charge be laid within three months of the offence coming to the knowledge of a relevant inspector.
In May 1905, and again in March 1908, an inspector visited the factory and found that the fly-wheel of an engine was not fenced as required. The inspector told the respondents as much and “required” them to fix it. He visited the factory again on 1 July 1908 and found that the fly-wheel was still unfenced. Three weeks later he laid a charge against the respondents. The charge was dismissed by a magistrate on the basis that the offence had first come to the knowledge of the inspector more than three months before the charge was laid. The Divisional Court overturned that decision. Lord Alverstone CJ stated (at 447):
The information in the present case charges the respondents that their factory was on July 1, 1908, not kept in conformity with the Act by reason of the omission to fence their fly-wheel. If that be proved, I have not the slightest doubt that there was on July 1 a direct and continuing breach of the provisions of s. 10. … In my opinion an offence was committed on July 1, 1908, just as much as in March, 1908, or May, 1905, and the offence committed on July 1 came to the knowledge of the inspector on that day, when he visited the respondents' factory. I therefore come to the conclusion that the information was laid in time.
Two reasons of note were given for this conclusion. First, a purposive one: if it was right that no charge could ever be laid more than three months after an inspector first became aware of the unfenced fly-wheel then that would “confer on the respondents a charter to keep this fly-wheel unfenced for ever” (at 447). Second, counsel for the respondents had sought to answer that concern by pointing out that another provision of the Act enabled a magistrate to make an order prohibiting the use of machinery which could not be used without danger. The Chief Justice dismissed the argument on the basis that, for that provision to apply, the onus “would be on the inspector to prove that the machinery was in a dangerous condition”; and that it was therefore clear that that alternative pathway “could not always be invoked to deal with cases where there has been an offence under s. 10” (ibid).
The case is appropriately regarded as falling within the third category I have identified, and not the second or the fourth. The reference to an offence being “committed on July 1, 1908, just as much as in March, 1908, or May, 1905” could be taken to suggest that the offence was regarded as one which occurred on a per day basis, so as to fall within the fourth category. However, the statement that “there was on July 1 a direct and continuing breach” tends to suggest that the offence was committed continuously, and there was a breach at any point in time – including the three points in time at issue in the case – where the obligation was not being complied with (cf Barelli’s at 620). It is also implicit in the Court’s purposive concern about the respondents having a charter to keep the fly-wheel unfenced that there were distinct offences at different points in time; an offender would not be protected from further liability by the fact that it had a previous conviction for the same non-compliance at a previous point in time. Thus the offence was not one falling into the second category.
Another case in the third category is Happy Cruising Pty Ltd v Magistrates Court of Western Australia [2025] WASCA 106. It concerned a Western Australian planning statute which made it an offence if a person “commences, continues or carries out any development … otherwise than in accordance with the provisions of the planning scheme”. The term “development” was defined to include “use”, which was construed to include activities done in or on the land. The appellant was using its land as a transport depot, being a prohibited use. It was convicted of the offence twice: first for a seven month period in 2019-20, and subsequently for a four month period in 2021. It sought to challenge the second conviction on the basis of a statutory provision giving effect to the doctrine of autrefois convict. The challenge was rejected.
The Western Australian Court of Appeal considered that the conduct charged in the two offences was different, such that the offences were different. That was so because “the second offence related to a different, non-overlapping period” (at [73]). The Court said that “the conduct on each occasion was materially different, not only because it occurred at a different time, but because the use of the land related to different vehicles, equipment and items that were stored on the land” (at [74]). The Court also considered purposive issues of a similar kind to those identified in , saying that if the appellant’s argument was accepted then an owner, having been prosecuted once, could thereafter “continue that unlawful use with impunity”, which “would defeat the evident purpose of [the provision] to prevent, deter and punish the unlawful use of land” (at [75]).
An example of the fourth category approach was considered in Hunter. Section 71(1)(e) of the Interpretation Act 1984 (WA) provides that where failure to do something within a certain time is an offence then where a person is convicted of the offence they are “guilty of a separate and further offence in respect of each day after the day of the conviction during which the failure to do that act or thing continues”, for which a penalty of $50 applies unless otherwise provided. Justice Corboy held that this creates further distinct offences, being offences under the Interpretation Act itself (see at [68]-[70] and [73]).
Another example arose in R v Chertsey Justices, Ex parte Franks [1961] 2 QB 152; [1961] 2 WLR 442. A planning offence was at issue, namely using land contrary to an enforcement notice. The provision stated (see WLR version at 442) that a person who:
uses the land … in contravention of the notice … shall be guilty of an offence and liable on summary conviction to a fine not exceeding £50; and if the use is continued after the conviction, he shall be guilty of a further offence and liable on summary conviction to a fine not exceeding £20 for every day on which the use is so continued.
The person charged was convicted three times of using certain land as a caravan site contrary to an enforcement notice. The charges covered different periods. He sought to have his third conviction quashed on the basis that it had been brought outside the applicable six month limitation period, the argument being that time had started to run the day after the initial conviction. The planning authority argued that there was a single continuing offence and so long as the last day charged was no more than six months prior to the charge date then it was within time. The Divisional Court accepted neither argument. Having referred to Verney, the Court held that “this continuing offence occurs from day to day”, and the limitation provision was effective to prevent the court “from hearing the information so far as it alleged an offence occurring more than six months before its date” (QB at 160). Further, the fact that the offence occurred daily meant that a plea of autrefois convict did not prevent the charge being brought despite the previous convictions. However, the conviction was quashed because it had been imposed for conduct over a period going beyond six months prior to the charge being filed.
The House of Lords subsequently considered an offence expressed in the same way in later legislation: Hodgetts v Chiltern District Council [1983] 2 AC 120. The House held, in effect, that the initial offence of failing to comply with the notice was a once and for all offence completed when the notice period expired (at 128). Non-compliance after a conviction was a distinct offence. The House held that a single charge relating to that offence which covered a number of days of non-compliance was not bad for duplicity. It did not address whether a distinct offence was committed each day. It was not necessary to do so given that the provision provided for a penalty per day, which could be consistent with either a third or fourth category offence.
In J Robins & Sons the Full Bench of the Industrial Commission said (at 157-158):
Continuing offences, for the purpose of the present case, may be divided into two classes – (1) those in respect of which a separate penalty may be inflicted for each day the offence continues, as if for a separate offence, and (2) those where the duty of obedience, failure to perform which is the offence, continues until the duty is performed, e.g., failure to obey an obligation to do something enjoined by law. …
As regards those within the first class, it is sufficient to say that it will be found that usually the statute itself imposes a penalty for each day the offence continues.
It will be recalled that, similarly to the last sentence, Avory J said in Ernest that “[t]he ordinary way to treat an offence as a continuing offence is to provide a penalty for each day during which the offence continues” (at 823). That statement was quoted approvingly by Cussen J in Jones (at 65).
For some offences the statute will provide for an ongoing daily penalty. For example, in Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 this Court considered an issue of duplicity relating to an offence under s 64 of the Protection of the Environment Operations Act 1997 (NSW) of failing to comply with a condition of a licence. The maximum penalty for breach by a corporation was expressed in this way: “in the case of a corporation — $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues”.
The second class identified by the Full Bench in J Robins & Sons correlates to my second and/or third category. As for the Full Bench’s first class, there is a potential ambiguity in the phrase “as if for a separate offence” (emphasis added), but the reference to the usual statutory approach of setting a penalty each day seems to suggest the Bench meant to refer to daily offences, in my fourth category.
However, that the statute provides for some further penalty for each subsequent day the offence occurs does not necessarily indicate that the lawmaker intends that a proscribed activity in a course of conduct be a distinct offence each day. Such a provision could also be understood as simply indicating that the total maximum penalty that may be imposed for an offence committed over a number of days is a function of how many days the contravention continued, but where the offence could be regarded as one offence across those days. Issues of statutory construction and duplicity overlap here. In practice it often may not much matter whether the offence is strictly regarded as a distinct one each day or a continuing one with a flexible maximum penalty.
As indicated, determining the nature of any statutory offence is a matter of statutory construction of the particular offence in question, which will always depend upon close analysis of issues of text, context and purpose. Broad statements about a particular way in which the task should be approached – such as those made in Brammer, Welsh and Leydon – are of little if any utility.
The issue involves whether the lawmaker is taken to have intended that the offence at issue imposes a requirement to do something by a particular time on a once and for all basis (the first category); or proscribes conduct in a manner that involves an ongoing obligation but where only one offence is thereby committed (the second category); or creates an offence on each occasion or for each period of time a particular act or omission occurs, including in instances where there is an ongoing obligation (the third category); or proscribes such conduct by creating a new offence for each day the conduct continues (the fourth category). Because some provisions proscribe a range of conduct it is possible that an offence might fall into more than one of these categories depending on how the charge is framed and the circumstances of the case (note eg Alkem).
It is possible to identify some (overlapping) considerations which are relevant to the characterisation exercise:
The precise conduct the offence proscribes*:* The footpath example given in Bathurst City Council illustrates the point (see above at [92]). One variant prescribed an action (which may have a character of causing a result), so as to be a distinct one-off offence. The other prescribed the result itself, so as to fall into the third category I have identified. Some offences proscribe a range of conduct and the key issue may become the precise nature of the charge. For instance, in Happy Cruising the offence encompassed both something that had been developed and an ongoing use. If the conduct is inherently one-off in nature, or involves clearly distinct acts or omissions, then the offence is more likely to have a once and done character. If what is involved is more of a course of conduct, or the offence provision is focused on the causing of a certain persistent proscribed outcome, then that is more likely to fall within the second or third categories.
The fact that a time for compliance is specified does not necessarily mean the obligation to comply ends at that time: Any requirement to take positive action must specify a time in which that must be done. That fact does not of itself imply that the lawmaker intended the obligation to finish at that point: see Barelli’s and related cases; cf Sloggett. This issue is relevant to distinguishing first and second category cases.
(a) In terms of distinguishing between the first category on the one hand (offences of a once and for all nature), and the second or third on the other (involving a continuing obligation of compliance), the key question is whether the lawmaker is likely to have intended that the obligation be an ongoing one. It is thus relevant to ask: does the specification of a time for compliance reflect the fact that the applicant has one chance to comply? Ernest, relating to filing a misleading document, is an example. Or is the specification of the time more reflective of the fact that whilst some time for compliance needed to be identified, the underlying imperative that the thing be done remains ongoing after that time? Thus in the wage and maintenance payment cases the key aim was seen to be requiring that the monies be paid. That imperative did not end when the time for payment had passed. The same is true of Leydon and Ganke, relating to company officers giving a report about the company’s affairs to the liquidator. In Verney the imperative was protecting workers from ongoing dangers at work. (b) Notions of double jeopardy may militate one way or the other, in particular in relation to whether the offence falls within the first or second category on the one hand (each of which involves one offence) or the third or fourth categories on the other (which involve distinct offences for different conduct or different days). In Verney and Happy Cruising the courts were concerned about the offender being able to continue the unlawful activity with impunity, militating against regarding the conduct as just one offence. For other offences it might be inferred that the lawmaker did not intend an offender to be punished more than once. For example, although an obligation to pay a sum may be an ongoing one, that does not necessarily mean the failure to pay was intended to be punished more than once. (c) Relatedly, whether or not the lawmaker would have intended multiple potential penalties to apply may be a relevant consideration. If not, then that might militate in favour of characterising an offence as falling within the second or third, and not the fourth, category. However, this factor may have limited force given that considerations of totality would restrain a penalty imposed for multiple offences in a course of conduct in any event.
Deemah argued that the offence with which it is charged, under ss 19(1) and 33 of the WHS Act, is a “continuing offence” involving conduct across time, which can only be prosecuted once. The applicant assumes an ongoing obligation which was the same in 2022 as it was in 2019. Its ground of appeal complains that the primary judge erred in determining that what the regulator observed on its visits in those two years disclosed distinct and different risks.
The applicant’s argument should not be accepted.
As noted above, s 33 of the WHS Act provides that a person commits an offence if the person “has a health and safety duty” and “fails to comply with that duty”. The proscribed conduct involves acts or omissions by the offender which constitute failing to comply with a duty.
The relevant duty is that found in s 19(1), which it is worth repeating, together with the separate duty in subs (2):
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
(a) workers engaged, or caused to be engaged by the person, and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
An offence under ss 33 and 19(2) of the Work Health and Safety Act 2011 (Qld) – the provisions of which relevantly are the same as those of the WHS Act – was considered by the Queensland Court of Appeal in Williamson v Betterlay Brick and Block Laying Pty Ltd (2020) 3 QR 594; [2020] QCA 52. A contractor had constructed a wall at a building site which was insufficiently reinforced. It collapsed four days later, causing injury to an employee of another contractor. The District Court had overturned the conviction imposed by a magistrate because it considered the offence only occurred at the time the risk was created, being when the wall was built. The Court of Appeal held, as a matter of text and purpose, that such an offence could be a “continuing offence” (at [1], [47] and [62]). The majority held that the offence charged was such an offence. The contractor’s duty to ensure that the health and safety of others was not put at risk from work carried out did not cease on the day the work was done (see at [1]-[8] and [52]; cf Applegarth J at [67]-[69] and [77]-[80]).
In this case Deemah sought to place some reliance on this Court’s decision in Prime Marble. The manner in which the primary judge addressed that reliance is summarised above at [39]-[41]. The offence there involved a contravention of s 33(1) taken together with s 19(1). That offence provision has the same two elements as s 32(1) together with an additional one, namely that the failure exposed an individual to a risk of death or serious injury or illness. The focus of argument in that case was on the additional element of s 33(1), not the first two elements which it shared with s 32(1): see at [6] and [34]. The Court did not need to address the issues raised in this case.
Section 19(1) identifies the person subject to the duty: a person who is conducting a business or undertaking (PCBU – a notion which is addressed in s 5). The duty is to “ensure” a particular outcome, relating to health and safety. Ensuring that outcome may involve not doing certain dangerous things and/or taking positive steps to reduce hazards and risks. The offence can thus encompass acts or omissions. The duty is owed to identified persons – in the sense of relating to the protection of the health and safety of those persons – being the types of workers identified (“worker” is defined in s 7). It is owed at an identified time, namely “while the workers are at work in the business or undertaking”. In this respect it is different from the duty in s 19(2), which is not expressed to be limited to a particular time or place. That is not to suggest that the s 19(1) duty is only owed at a particular location belonging to the PCBU: note Safe Work Australia, Explanatory Memorandum – Model Work Health a**nd Safety Bill (as at 23 June 2011), [79].
3 Object
(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by—
(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and …
(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and …
(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.
There are other objects listed in s 3(1), and no legislation pursues its purposes at all costs: Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36 at [41]. Even so, the emphasis given to protection of workers offers support to the construction suggested by consideration of the text.
The effects of Deemah’s argument include that, first, an ongoing breach could not be prosecuted more than once, and, second, the regulator would not be able to prosecute the offence more than two years after it had notice of the offence. As to the first, that would mean that after conviction a PCBU could, for an indefinite period, continue to expose workers to hazards and risks in defiance of its legal duty. That would not be consistent with the core protective object of the WHS Act. When this point was raised in the course of the hearing, senior counsel for the applicant submitted that “the clock” would start running again after a conviction. When asked why he said: “I have some difficulty answering that question I must say, your Honour. But I can’t submit any reason why it wouldn’t given the terms of the section itself.” No reason is apparent why, consistently with basic principle, a plea of autrefois convict would not be available once the offender had been convicted of a single, continuous offence of the kind asserted by Deemah, falling within the sense discussed in the second category. In any event, the instinctive reaction that the clock should start running again itself illustrates the force of the purposive concern.
As to the second, relating to the limitation period, that effect again would undermine the core protective object. The regulator might direct the PCBU to remedy the situation – as occurred twice in Verney – and perhaps rely on an assurance that it would be fixed. That the regulator was misled, and/or was misguided in its decision to rely on that assurance, offers scant comfort for workers whose health and safety is at risk. That does not mean that the limitation period has no effect. As Prime Marble illustrated, it will bite where the regulator seeks to prosecute in relation to events in the past of which it had had the requisite period of knowledge.
Deemah sought to answer such purposive concerns – much as was done in Verney – by pointing to the availability of alternative mechanisms to protect workers. As summarised above (at [20]-[24]), the regulator can issue improvement or prohibition notices, and seek injunctions, or accept enforceable undertakings. It is itself an offence to fail to comply with the notices or an undertaking. Failure to comply with an injunction could lead to contempt proceedings. These mechanisms are significant ones in the armoury of the regulator. They mean that the regulator would not be left without means to seek to ensure compliance after a previous conviction or the expiry of a limitation period.
Given the construction identified, any offences by Deemah which came to the attention of SafeWork in 2019 or 2020 were necessarily distinct from those which came to its attention in 2022. They occurred at a different time, relating to the circumstances as they existed at that time.
The charged period commences on 20 February 2021 and the proceeding was commenced some two years and nine months later on 30 November 2023. Thus the days encompassed by the charge go beyond two years of the proceedings being commenced. However, it is apparent that what led to the charge was what was observed during the inspection on 21 February 2022. It was then that the offence charged first came to the notice of the regulator. That date is within the two year period prior to the proceedings being commenced.
Thus the limitation period in s 232(1) did not prevent the prosecution being commenced. The offence with which Deemah is charged relates to a distinct period of time and distinct circumstances as compared to the possible offence committed in 2019. Deemah’s ground of appeal must therefore be rejected.
Even if the above characterisation of the offence is incorrect, Deemah’s argument is self-defeating. As noted, Deemah’s argument was that the offence in question is a “continuing offence” involving conduct across time. It submits that “the regulator was on notice of a single, continuing offence from 2019”, and that “the offence charged is exactly the same offence as that allegedly being committed in 2019”. Its focus is on the issue of when SafeWork had notice of “the offence” being committed. The argument assumes an ongoing obligation which was the same in 2022 as it was in 2019. As Deemah submitted, a “continuing offence ends once it is no longer being committed”.
There are two preconditions to the limitation period running pursuant to s 232(1)(a) of the WHS Act. The first, implicitly, is that “the offence” has occurred. That involves consideration of when the offence is “complete”: see Bathurst City Council at 83; Prime Marble at [33]. The second relates to when that offence came to the notice of the regulator.
Let it be assumed that the applicant’s characterisation of the offence is correct, contrary to the conclusion reached above. If the offence was a continuing one in the sense Deemah asserts then by definition the obligation continues. In light of cases such as Verney, Jones, Cook v Cook, Barelli’s, and many others, it is apparent that such an offence may be complete enough to be prosecuted at one time, but time (for limitation period purposes) is “extensible” such that it can continue to be prosecuted until the obligation is complied with (see above at [81]). There is no reason why the approach applied in those cases would not also apply here. So understood, the limitation period would not bite for so long as the one offence continued.
Deemah sought to distinguish Barelli’s on the basis that there the limitation period operated by reference to when the offence had been committed, where here there was an issue as to when the offence had come to the attention of the regulator. That submission ignores the fact that the issue relating to the regulator’s knowledge is additional. It is still necessary that the offence is complete in the relevant sense. Deemah submitted that the words “first comes to the notice of the regulator” would not have any work to do wherever there is an alleged continuing offence being committed. That is not so. If and when an offence had come to an end, and two years had passed since the regulator had had notice of it, then a prosecution would be time-barred. Prime Marble is an example.
Indeed, if Deemah’s characterisation is correct then SafeWork could prosecute it not only for what occurred in 2022 but also for what occurred in 2019, because it was all part of one offence. SafeWork could only prosecute Deemah for the offence . But there has been no prior prosecution. Deemah is relying on the limitation period, not on double jeopardy. The argument made by Deemah defeats itself.
There is a further reason that the appeal should be rejected. Even if the offence was a “continuing” one in the sense invoked by Deemah, and even if that did not have the consequence of time running in an “extensible” way, the primary judge was correct to conclude that the offence charged related to distinct breaches in comparison to the offence said to have been identified in 2019 (Deemah did not seek to rely on the offence disclosed in the course of the 2020 inspection).
Deemah’s argument proceeds on the basis of treating both the risks and the acts and omissions responding to the risks at a high, and unwarranted, level of generality. There is no doubt that there were inherent, constant risks to the health and safety of workers arising from the nature of Deemah’s business. Those risks were described in Deemah’s submissions to this Court:
When manufactured stone is cut, ground or polished it produces very high levels of RCS. Tasks that involve the use of hand-held power tools to trim, shape and cut slabs of fabricated manufactured stone products can generate high amounts of RCS in the breathing zone of the worker. Workers who perform stone work tasks including fabricating manufactured stone and/or natural stone products can be at risk of developing the dust disease silicosis when exposed to airborne RCS dust during such tasks.
Deemah similarly sought to characterise its alleged breaches in 2019 and 2022 at a high level, saying they involved a failure to implement and enforce a safe system of work for the reduction of exposure of workers to RCS, including the clean-up and disposal of dust and slurry.
That there is an inherent and constant risk of the kind identified does not mean that every failure to take steps to mitigate that general risk, or every positive step, should be regarded as just one breach of the duty in s 19(1). As explained above (at [114]), the PCBU has a duty to ensure the health and safety of workers while at work “so far as is reasonably practicable”, which notion focuses attention on the particular time and circumstances in which hazards or risks exist, and how they can and should be responded to.
The first 2019 inspection relevantly identified two particular breaches: not providing health monitoring and not having provided proper information and training to workers in relation to respiratory protective equipment (especially training about proper fitting of such equipment). No doubt SafeWork’s concerns arose because of the generic risk to workers from RCS in the work environment. But it had identified specific conduct which in its view involved a failure in two specific respects to take steps to address and ameliorate that generic risk. Thus specific conduct of Deemah was impugned. It directed that Deemah take steps to alter its conduct by way of INs, and Deemah did so to SafeWork’s satisfaction. The inspector in question was satisfied that the breaches of the duty identified had come to an end by the time of the second 2019 inspection.
The contraventions that SafeWork alleged as a result of the 2022 inspection related to particular facts observed on the visit relating to how workers were wearing masks and dust accumulating at a particular spot near the water treatment system. No doubt, again, the underlying concern was about workers being exposed to RCS. But the conduct was distinct. These observations related to a particular time. They were also of a different nature to the contraventions said to have been observed in 2019, especially with respect to the dust near the water treatment equipment, save that both inspections raised a concern about respiratory protective equipment and provision of information and training in relation to such. In 2022 the concern was about what masks were permitted to be worn by workers whilst doing particular tasks. The particulars of the charge do include failing to develop, implement and enforce a respiratory protection program and failing to provide proper training to workers about protective equipment and the risks of the tasks being undertaken (see above at [37]), but that was in a particular context of observed behaviour.
Even insofar as there is some overlap with the 2019 concerns, that does not mean that they are the same contravention. The primary judge gave a good example illustrating the point, at J [58], of an employer that contravened the duty by failing to implement proper practices to keep forklifts aways from pedestrians, then improved its practices in response to regulatory action, then fell back on its old bad practices. Doing so would represent a new and distinct contravention, involving distinct (if potentially identical) conduct at a distinct time. Similarly, a person charged with driving to work with a proscribed level of THC in their bloodstream is not protected from being prosecuted simply because they had been convicted of doing the same drive on an earlier occasion with the same THC in their bloodstream. That the contravening conduct has occurred before does not mean it is the same conduct and the same contravention.
Deemah’s sole ground of appeal is that the primary judge erred in determining the proceedings were commenced within time on the basis that the visits by the regulator to its premises in 2019 and in 2022 disclosed distinct and different risks and breaches. Deemah’s argument must be rejected for three reasons. First, its characterisation of the offence in question as a single continuing offence is incorrect. The better view is that that a distinct offence under ss 19(1) and 32 may be committed whenever the duty is not complied with at any particular time “while the workers are at work in the business or undertaking”. Second, if Deemah’s characterisation of the offence was correct then time would be “extensible” such that the limitation period would not bite. Third, even if Deemah’s characterisation was correct and time was not extensible, the primary judge was correct to conclude that there were distinct breaches disclosed by the inspections in 2019 and 2022.
The orders of the Court should therefore be as follows:
Grant leave to appeal.
Appeal dismissed.
R A HULME AJ**:** I agree with Kirk JA.
**********
Deemah Stone Pty Ltd
SafeWork NSW [2026] NSWCCA 34
(1974) 22 FLR 276
(2013) 248 CLR 619
(1923) 33 CLR 369
(2013) 248 CLR 483
(1995) 89 LGERA 79
(2013) 85 NSWLR 125
(1990) 19 NSWLR 449
(1934) 50 CLR 451
(2020) 247 LGERA 1
(2010) 241 CLR 390
(1980) 23 SASR 364
(2013) 252 CLR 381
(2023) 112 NSWLR 507
(2024) 332 IR 365
(1996) 188 CLR 77
(1992) 175 CLR 514
The primary judge distinguished the present case from Prime Marble, and rejected the applicant’s arguments, on the basis that “the three visits by SafeWork inspectors to the Deemah premises disclosed distinct and different risks and breaches of Deemah’s work health and safety duty on each occasion” (at [52]). The contraventions raised in 2019 were addressed by Deemah to the satisfaction of SafeWork. The accumulation of RCS on the floor adjacent to the premises’ water treatment system, the worker wearing a disposable P2 respirator over a thick beard, and the worker wearing a surgical mask were all observations made for the first time during the 2022 inspection (at [52]-[54]). His Honour accepted “that the risk of harm to workers caused by inadequate RPE observed … in May 2019 was a similar risk to that observed … in February 2022” (at [55]). However, that the risk was similar did not make it the same risk or the same breach. In effect, his Honour held that the applicant’s submission that the “risk of harm to workers caused by inadequate RPE” constituted the same risk was framed at too high a level of generality.
His Honour also found that, by reason of the second 2019 inspection having confirmed the applicant’s compliance with the relevant INs, any breaches observed during the first 2019 inspection had been remedied. The breaches observed in 2022 were apparently the result of standards having slipped at some point after the second 2019 inspection (at [56]).
The second category involves a continuing offence in the sense that there is an ongoing obligation to do something across a period of time but where a failure to do that thing is only one offence. Such offences might involve a specified temporal element of having to do something by a particular time, as for the first category, but in contrast to that category that element sets only the start and not the end point of the duty to comply.
The third category may also involve an ongoing breach of a continuing obligation. In that sense this category, too, can encompass “continuing offences”. The key difference from the second category is that there is not just one offence committed. Rather, there may be different breaches – potentially constant breaches – at different times. Those different breaches might nevertheless potentially be charged as one offence, falling within the exceptions to the principle of duplicity identified above at [46].
The fourth category, like the second and third, can also involve a course of conduct. It is sometimes referred to as a type of continuing offence but actually involves repeated offences, typically on a daily basis. It represents a different statutory approach to ongoing breaches of an ongoing duty. It might be said that dividing conduct up into days is somewhat arbitrary. However, a day is an objective, practical and socially significant delineation of a period of time.
In the second category there is understood to be just one offence extending across a period of time. Presumptively such an offence can only be prosecuted once (subject to any contrary indication in the statute). But issues with limitation periods are commonly avoided because the time in which the offence is committed may be regarded as “extensible”, as shall be seen. For the third category an offence is committed for any distinct set of activities or period of time within the course of conduct. The fact that there has been a conviction for the conduct relating to one period of time does not preclude a prosecution for the same conduct occurring in a later period. This category thus avoids the double jeopardy issues that would apply with respect to the second category. A limitation period presumptively would apply to any conduct with respect to activities occurring prior to the prescribed period. The fourth category is similar to the third in relation to both double jeopardy and limitation periods. The difference is the lawmaker is understood to have provided that there is a distinct and separate offence each day (or other prescribed period) the course of conduct continues.
Issues of duplicity are more likely to arise for the third or fourth category than they are for the second category. That is so because there may be numerous offences committed over a period of time, and an issue may then arise as to whether the prosecutor is entitled to charge them as one offence. The statute may itself address the duplicity issue, as s 233(1) of the WHS Act does.
As has been recognised in many cases, the question of the nature of the offence is a matter of statutory construction (assuming the offence is statutory). As with any exercise of construction, it is necessary to take account of the text, context and purpose of the provisions in question, where those may include not only the offence-creating provision but any other relevant provision, such as one setting a limitation period. The nature of the offence does not always appear clearly from the text of the provision.
It is useful to examine cases falling within one or more of these categories in order to throw light upon the issues raised.
Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276 was another wages case. The award provided for payment “within the week”. The statutory scheme provided that proceedings for breach or non-observance of an award could “be commenced at any time within twelve months after the commission of the breach or non-observance”. Justice Joske, speaking for a Full Court of the Australian Industrial Court, considered the decision in Jones to be correct (at 279). His Honour also considered that particular issues of statutory coherence supported that conclusion in the issue at hand (at 279-280). His Honour went further and said that in view of the Jones line of authority (at 279):
This Court followed Leydon with respect to a successor provision in Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449. Again, purposive considerations were central, with Hunt J saying that “[t]he liquidator still needs the information; he does not cease to need it simply because the fourteen day period has expired” (at 453).
There are a number of other cases where offences have been characterised in the same way as was adopted in Barelli’s, such as to fall within the third category. Examples include other wage payment cases such as Cox v Ketchell [1973] Tas SR 33 and R v Industrial Appeals Court; Ex parte Circle Realty Pty Ltd [1980] VR 459; and J Robins & Sons, which involved a failure to notify the Industrial Registrar within a certain time of an apprentice having been employed.
Examples of cases going the other way, where it was held that once the offence in question was committed then there was no continuing obligation or continuing breach, include the following:
In E**nvironment P**rotection A**uthority v Alkem Drums Pty Ltd [2000] NSWCCA 416 a majority of this Court held that a notice issued by the EPA to remove drums containing hazardous materials by a particular date should be understood to impose a once and for all requirement, not a continuing offence. The judge in minority on the point, Smart AJ, emphasised a purposive concern, saying at [73] that the law “would be seriously deficient if after the time specified for their removal the offence did not continue until the drums were removed”.
In Hunter v City of Joondalup [2015] WASC 444; (2015) 257 A Crim R 299 the defendant had failed to comply with a notice requiring him to construct a boundary fence within 150 days. Justice Corboy held that the offence was of the once and for all kind: at [66] and [71].
In Joseph v Worthington [2018] VSCA 102; (2018) 272 A Crim R 292 the Victorian Court of Appeal considered a summary offence provision that required, as regards an accrued long service leave entitlement, that on the day the employee’s employment ended the employer “must pay the employee the full amount of the … entitlement as at that day”. The Court held that this created a once and for all offence, such that a limitation period applied. In that regard the Court was influenced by the text of the provision which, it said, provided that “the offence was complete on the day the employment ended and the required payment was not made” (at [93], see also [84]). Perhaps more persuasively, the Court also relied on issues of context and coherence, explaining that other provisions created an ongoing obligation which could be enforced by seeking an order directing payment or by seeking recovery of the debt (at [86]-[87]).
The fact that continuing offences falling within the second category are regarded as being only one offence, albeit with time “extensible”, has implications as regards double jeopardy. It would mean that such an offence could only be prosecuted once, subject to any statutory provision to the contrary. Any subsequent prosecution for the same offence relating to the ongoing non-compliance would be answered by pleas of autrefois convict or acquit.
It is important in this context to distinguish between the offence being “complete”, so as sufficient to be prosecuted, and it being at an end. These notions are distinct. In Bathurst City Council Hunt CJ at CL said, when referring to an offence being complete, that that means “it has been committed” (at 83). Because it has been committed it is thereafter capable of being prosecuted. But that fact does not mean commission of the offence has come to an end. In the words of Cussen J in Jones, picked up in Barelli’s, for such offences “[t]he time element is extensible”. And thus it is that such offences can be prosecuted even if a relevant limitation period has been exceeded in relation to when the offence first started being committed. However, because such offences are regarded as only one offence, then once they have been prosecuted they cannot be prosecuted again (subject to statute). Thus non-compliance with the sorts of wage payment obligations considered in Barelli’s cannot be prosecuted for a second time even if the obligation is never complied with.
Not all of the cases considered above, aside from Barelli’s, were clear in indicating that the offence was ongoing but only a single offence. Thus some of these cases could actually fall into the third category.
The charges in that case impugned the “use” of the land, focusing on the storage of plant, trucks and equipment. The issue may have been more complicated if the charges had addressed unauthorised development that the defendant had undertaken by building a hardstand area on the land. That appears to have involved one activity of doing something not authorised, then simply leaving it there. It may have been more arguable that that was one offence which could not be charged more than once. It might have been argued, however, that the offence was in continued breach of an ongoing obligation so as not to be subject to any limitation period.
An example of an offence which was found not to impose any ongoing obligation was that considered in Solicitor to the Board of Trade v Ernest [1920] 1 KB 816. The offence was furnishing a statement required to be filed under a business names registration law which was false in a material particular to the knowledge of the person signing it. The Court rejected the prosecution argument that this was a continuing offence because incorrect information continued to be found in the register. The offence was committed, and ended, when the person furnished the false information. Lord Reading CJ considered that a clear indication of that intention was that the legislation also created an offence of failing to supply the required particulars and stated that a person in default was liable to a fine for every day the default continued (at 822). That indicated that where the Parliament had intended to create a continuing offence it had made that clear. This is an example of the statutory context being significant. Justice Avory, in agreement, said that “[t]he ordinary way to treat an offence as a continuing offence is to provide a penalty for each day during which the offence continues” (at 823).
The wording of the particular provisions is, of course, critical. In Bathurst City Council Hunt CJ at CL, speaking for this Court, gave two hypothetical examples illustrating the point (at 86). His Honour said that if an offence was expressed in terms “A person who obstructs a footpath is guilty of an offence”, then it “would be a continuing one where the obstruction remains over a period of time”. I note that such an offence would likely fall into the third category I have identified, as it would impose an ongoing obligation which could be breached at any point in time. However, if the provision was expressed “A person who places material on the side of a roadway in such a manner that the footpath is obstructed is guilty of an offence”, then his Honour considered the offence would not be a continuing one despite the continued obstruction of the footpath. That characterisation involves the offence being seen as prohibiting only the taking of a particular action. The result of obstructing the footpath goes to identifying the nature of that action; it is not taken to be an ongoing prohibition.
The offence in question in Bathurst City Council was polluting waters, which had been construed as involving both an action of placing some proscribed material in the waters and the result that the waters were thereby polluted. This Court held that the offence was only complete when the result of pollution had occurred, which might be some time after the action of the defendant had taken place. The Court held that the fact that the polluting result might continue for some time did not mean the offence continued to be committed, insofar as it arose from some single past action by the defendant. Justice Hunt drew an analogy with murder, which similarly involves a result of an action (a person dies) but is not a continuing offence simply because the victim continues to be dead (at 86). The Court’s conclusion is not surprising given that even though the result was an element of the offence (just as the character of the obstruction of the footpath was in the second variant), the impugned conduct of the defendant was relevantly a one-off act.
Whether it is likely to be in the power of offender**s to remedy the situation, at least for a time*:* An obligation is unlikely to be seen as a continuing one, so as to fall within the second or third categories, if offenders generally will not be capable of taking action to end the contravention. However, if the contrary is true, then it may well be that the lawmaker intended the obligation to be a continuing one, thus raising purposive considerations.
Whether, and how, a penalty is stated for each day the offence continues*:* If a provision identifies a penalty for an ongoing breach (eg per day), that indicates the lawmaker understood the offence may involve a course of conduct. If the provision indicates expressly or impliedly that a new offence is committed each day then it falls within the fourth category (see eg Hunter; also Lush in discussing the “default penalty” provision – see above at [74]). Otherwise it is also possible that the offence falls within the second or third categories, because the provision for ongoing breach could be understood as simply determining the maximum possible penalty for one offence occurring over a period.
The nature of available defences: For example, in Leydon the availability of a reasonable excuse defence was taken to militate in favour of characterising the offence as involving an ongoing obligation (see above at [76]), so as to fall within the second and not first category.
The way in which the statute has created other offences: The offence provision in question must be construed in the context of the statutory scheme. If other provisions in the scheme are clear in indicating that some other offence or offences falls into one category, then the adoption of a different form of drafting for the offence in question may tend to suggest that it does not fall within that category (see eg Ernest).
Coherence within the statutory scheme and the availability of alternative means of achieving the claimed purpose: In Joseph, in a payment context, the Court took account of the fact that other provisions created an ongoing obligation which could be enforced by other means (see also Brammer). This is a potential counterpoint to a purposive argument. However, the extent to which the claimed alternative means achieve the purpose will be relevant. Thus in V**erney it was seen as significant that the alternative methods of enforcement would not always be available.
Purposive considerations: An understanding of the purpose of outlawing the relevant conduct will commonly be of great significance in characterising its nature. In that regard:
It could be argued that there is a distinct duty owed to each individual worker. However, that seems somewhat artificial and complex. And the focus of the offence is on what is required of the person conducting the business or undertaking.
Section 19(1) requires the PCBU to ensure the health and safety of workers while at work “so far as is reasonably practicable”. The notion of “reasonably practicable” is addressed in ss 17 and 18 (which are set out above at [15]). Section 17(b) provides that “if it is not reasonably practicable to eliminate risks to health and safety” then a duty to ensure health and safety requires the person “to minimise those risks so far as is reasonably practicable”. Section 18 provides that “reasonably practicable” means “that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters”. Five matters are then listed on a non-exhaustive basis: the likelihood of the hazard or risk occurring; the degree of harm that might result; what the person knows or ought to know about the hazard/risk and ways of addressing such; the availability and suitability of ways to eliminate or minimise the risk; and the cost of doing so, including whether the cost is disproportionate. Those matters indicate that attention must be paid to the particular time and circumstances in which particular hazards or risks exist, and how they can and should be responded to. For example, if a particular hazard is constant and ongoing, a mitigatory response which is disproportionately expensive today will not necessarily be too expensive tomorrow.
The obligation imposed by s 19(1) is thus one that applies at an identified time with respect to an identified class of persons, focusing on risks and hazards at particular times and in particular circumstances. These characteristics suggest that a distinct offence is committed for any and all periods of time when workers are at work and are subject to particular risks and hazards to which particular ameliorating responses can and should have occurred. A temporal aspect is inherent in the duty.
The duty imposed by s 19(1) applies constantly and continuously to a PCBU while workers are at work. In some circumstances it is possible that a breach might be regarded as a continuing one in the sense that the hazard or risk, and the inappropriate acts or omissions in response, might be the same for a period of time. That characteristic does not mean that such an offence would be a continuing one in the sense sought to be invoked by Deemah, namely that the contravention at one point of time is the same as the contravention at another point of time. The text suggests that the offence at hand is not the same as cases discussed above in the second category I have identified, such as where there was a failure to comply with an obligation to pay some amount. That type of obligation crystallised at one point in time and continued thereafter until discharged. As explained, those cases involve one offence, such as failing to make the payment due. They can only be prosecuted once. Here, the obligation is constant but in the sense that it is ongoing “while the workers are at work in the business or undertaking”. What was an offence yesterday is also an offence today, but not because of what the person did or did not do yesterday. Rather, it is also an offence today because of what the person did or did not do today. There is an ongoing duty focusing on the particular time and circumstances.
This construction is supported by purposive considerations of much the same kind as were significant 117 years ago in Verney. The sort of inferred purpose which was identified in that case is addressed expressly in the WHS Act now. Section 3 of the WHS Act provides:
However, the potential penalties are different. Focusing on bodies corporate, the penalty for a contravention of s 33(1) is 5,770 penalty units, and for contraventions of s 32(1) it is 17,315 units (as at the time of the offences). The potential penalty for failing to comply with an improvement or prohibition notice is, respectively, 2,885 and 5,770 units. For contravening an enforceable undertaking it is 2,885 penalty units. The deterrent effect of those mechanisms is thus less than the potential of contravening ss 32 or 33 with respect to s 19(1). Moreover, each of those mechanisms relies upon the regulator taking certain steps (and, in the case of an enforceable undertaking, depends upon the PCBU volunteering it). That contingent operation does not have the same regulatory effect as an ongoing requirement to comply with a duty, at risk of criminal sanction. Deemah’s reliance on these alternative mechanisms thus has limited force.
Taking account of considerations of text, context and purpose, the better view of ss 19(1) and 33 of the WHS Act is that a distinct offence may be committed whenever the duty is not complied with at any time “while the workers are at work in the business or undertaking”. To that extent it falls within the third category I have identified above, and it does not fall within the second category in the sense of there being only one contravention of a continuing obligation. The offence bears some similarity to the use of land offence considered in Happy Cruising, or to an offence of driving with a proscribed concentration of a drug which is committed each time a person drives and for each portion of time for which they are driving.
The nature of the offence means that the regulator may be able to frame a charge in various ways. A breach of any duty which is constant and ongoing must focus on some moment or period in time. The period of time selected might be short or long. The regulator might focus on a particular work day, or some other instant or period of time, as the basis for one charge. Or it might bring multiple charges for different days or other periods of time. Section 233(1) of the Act enables the regulator to charge multiple contraventions “that arise out of the same factual circumstances” as a single offence. Taking the route of bringing a series of different charges might mean that a PCBU had committed multiple offences over a period of time, leading potentially to a very high maximum penalty. The framing of a charge is an aspect of a prosecutor’s discretion, which can affect the potential penalty: see Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [34]-[35]; Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [20]-[41]. That being said, principles of totality would apply to moderate that potential consequence.
The primary judge was correct to conclude that the alleged contraventions now being prosecuted were distinct from those alleged to have occurred in 2019.