Empire Waste Pty Ltd v District Court of New South Wales

Court of Appeal (NSW)|2013-06-20|Before: Bathurst CJ, Beazley P, Hoeben JA

HCA 38; (2008) 236 CLR 101 Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402 Peacock v Newtown Marrickville and General Building Co-Operative Building Society No 4 Ltd (1943) 67 CLR 25 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Secretary of State for Social Security; Ex parte Britnell [1991] 2 All ER 726; [1991] 1 WLR 198 Re Bolton; Ex parte Beane (1987) 162 CLR 514 Retirement Benefits Fund Board v Hingston (1997) 7 Tas R 134 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Shanahan v Scott (1957) 96 CLR 245 Victorian Chamber of Manufactures v Commonwealth (Women's Employment Regulations) (1943) 67 CLR 347 Willocks v Anderson (1971) 124 CLR 293 Texts Cited: Model Work Health and Safety Regulations 2011 New South Wales Legislative Council, Parliamentary Debates (Hansard), 19 October 2011 Second Reading Speech, Work Health and Safety Act 2011and Occupational Health and Safety Amendment Act 2011, New South Wales Legislative Council, Parliamentary Debates (Hansard), 11 May 2011 Category: Principal judgment Parties: Empire Waste Pty Ltd (First applicant) Dean Baldwin (Second applicant) District Court of New South Wales (First respondent) Inspector Steven Brock (Second respondent) Representation: Counsel: G W McGrath SC and S A Adair (Applicants) J V Agius SC and B G Docking (Second respondent) Solicitors: Eastern Commercial Lawyers (Applicants) Crown Solicitor's Office (First respondent) Legal Group, Safety, Return to Work and Support Division (Second respondent) File Number(s): 2013/127697 Publication restriction: No Decision under appeal Jurisdiction: 9101 Citation: [2013] NSWDC 38 Date of Decision: 2013-04-12 00:00:00 Before: Curtis DCJ File Number(s): 2012/341785

Judgment 1BATHURST CJ: On 1 November 2012 the second respondent (the prosecutor) applied for an order that the first applicant, Empire Waste Pty Ltd (Empire Waste), appear before the District Court to answer a charge that on 20 December 2010 it failed to ensure the health, safety and welfare at work of its employees, and in particular Thomas Hill, contrary to s 8(1) of the Occupational Health and Safety Act 2000 (OH&S Act). The proceedings were commenced by the filing of an application to commence proceedings under s 246 of the Criminal Procedure Act 1986 (CPA) to which a draft summons was annexed. 2On 1 November 2012 Blanch J (Chief Judge of the District Court of New South Wales) ordered Empire Waste to appear on 14 December 2012 to answer the charge. 3Similar proceedings were commenced in the same fashion against the second applicant (Mr Baldwin), a Director of Empire Waste. Mr Baldwin was charged with the same offence, reliance being placed on s 26(1) of the OH&S Act. On 1 November 2012 Blanch J ordered Mr Baldwin to appear on 14 December 2012 to answer that charge. 4By notices of motion filed on 11 February 2013 each of Empire Waste and Mr Baldwin sought orders quashing or staying permanently the orders made by Blanch J on 1 November 2012. The notices of motion asserted the District Court had no jurisdiction to hear the charges for two reasons. First, neither the Work Health and Safety Act 2011 (the WHS Act), nor any other legislative instrument conferred jurisdiction to hear proceedings for an offence under the repealed OH&S Act alleged to have been committed before the repeal of that Act. In that context it was contended that to the extent that cl 3(a) of Sch 18B of the Work Health and Safety Regulation 2011 (the regulations) purported to do so, it was invalid or alternatively ceased to have effect after December 2012 (Ground 1). 5Alternatively, it was said that there was no jurisdiction as the application for the order was not made in accordance with Pt 53 r 26 of the District Court Rules 1973 (r 26) contrary to the requirements of s 246(2) of the CPA. This, it was said, was because the statement of facts was not made in accordance with the rules as it contained statements "of matters of fact, mixed fact and law, conclusion, comment and opinion not only in respect of, or purportedly in respect of the alleged offence, but also as to matters that were extraneous to the facts of the alleged offence" (Ground 2). 6In a judgment dated 12 April 2013 Curtis DCJ (the primary judge) dismissed the notice of motion. 7By summons filed on 23 April 2013 the applicants seek the same relief as that sought in the Court below together with a declaration that the District Court has no jurisdiction to hear and determine the proceedings, orders in the nature of certiorari quashing the judgment of the primary judge and an injunction restraining the prosecutor from continuing the proceedings.

The legislative background 8To understand the reasoning of the primary judge and the submissions of the parties, it is necessary to have regard to the legislative arrangements adopted to deal with offences alleged to have been committed under the OH&S Act prior to its repeal. 9Prior to its repeal s 105(1)(a) and (b) of the OH&S Act provided that contraventions of that Act were to be dealt with summarily before the Local Court or the Industrial Relations Commission in Court Session. 10Section 168(2) of the Industrial Relations Act 1996 applied the provisions of Pt 5 of Ch 4 of the CPA to proceedings for any offence that was required to be taken to the Industrial Court. Those provisions of the CPA included s 246 which provides as follows: "246(1) A prosecutor may apply for an order: (a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or (b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order. (2) The application must be in accordance with the rules. (3) The order may be made in the absence of one or both parties. (4) An order for the apprehension of a person may be made whether or not an order has been made under subsection (1)(a). (5) An order for the apprehension of a person: (a) must be addressed to all police officers, and (b) may be addressed to any other person specified in the order, and (c) maybe executed by any police officer or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the court. (6) A Judge before whom a person apprehended under an order made under this section is brought may, if bail is not dispensed with or granted, issue a warrant: (a) committing the person to a correctional centre or other place of security, and (b) ordering the person to be brought before a court at the date, time and place specified in the order." 11The WHS Act received assent on 7 June 2011 with a commencement date 1 January 2012. Section 276C of the WHS Act repealed the OH&S Act. 12The WHS Act was introduced to harmonise occupational health and safety law in this State with a model Work Health and Safety Act, the form of which was endorsed by the Workplace Relations Ministers' Council on 11 December 2009. 13As I indicated, the WHS Act was expressed to commence on 1 January 2012. However, two of the measures proposed in the model Act - first, removing the onus on the defendant to establish that it was not reasonably practical to comply with a duty imposed by the Act and, second, altering the obligations of officers of a corporation to ensure compliance with duties imposed by the OH&S Act from one in absolute terms to one requiring due diligence to ensure compliance - were inserted into the OH&S Act by the Occupational Health and Safety Amendment Act 2011. This Act was also assented to on 7 June 2011 but unlike the WHS Act was expressed to take effect on that day. 14In the Second Reading Speech in relation to the WHS Act and the Occupational Health and Safety Amendment Act 2011, the Minister made the following remarks: "Another significant change to be brought into New South Wales by the Work Health and Safety Bill 2011 is a shift to the mainstream criminal courts for the enforcement of breaches of work health and safety laws. Currently, the more serious breaches of occupational health and safety are dealt with by the Industrial Relations Commission in court session. Under the bill, category one offences, which carry maximum fines of up to $3 million for a corporation and up to five years imprisonment for an individual, will be dealt with on indictment in the Supreme Court. Other offences will be dealt with by summary proceedings in either the District Court or the Local Court. These changes will better integrate breaches of work health and safety legislation with the general criminal law, and provide clear avenues of appeal. Decisions of the District Court and Supreme Court can be appealed to the Court of Appeal, and eventually to the High Court, without having to seek equitable writs. As the national review of occupational health and safety laws made clear, it is desirable that there should be a clear path for appeals. Furthermore, the laws will include provisions in the most serious cases where courts can deprive people of their liberty, with maximum penalties of up to five years. The transfer to the mainstream courts will mean that these serious cases are dealt with by a judge and jury. At the moment the Industrial Relations Court deals with matters summarily, with no provision for juries; I also note that there will be a role for the Local Court, as there has been for a significant time. The Industrial Relations Commission will retain an important role under the bill, such as hearing matters to determine applications to disqualify health and safety representatives who misuse their powers; issuing work health and safety entry permits to union officials, and suspending or revoking those permits where appropriate; determining disputes about right of entry; and conducting an external review of decision made by WorkCover inspectors and WorkCover."(New South Wales Legislative Council, Parliamentary Debates (Hansard), 11 May 2011 at 663-664) 15Section 229B of the WHS Act which is contained in Pt 13 of that Act, conferred jurisdiction on the District Court, Industrial Court and Local Court in respect of offences under that Act. The section as originally enacted provided as follows: 229B(1) Except as provided by this section, proceedings for an offence against this Act or the regulations are to be dealt with summarily: (a) before the Local Court, or (b) before the District Court in its summary jurisdiction. (2) Proceedings for a Category 3 offence are to be dealt with summarily: (a) before the Local Court, or (b) before the Industrial Court. (3) Proceedings for a Category 1 offence committed by an individual are to be taken on indictment. (4) The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence against this Act is $50,000, despite any higher maximum monetary penalty provided in respect of the offence. (5) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the District Court in its summary jurisdiction. (6) The provisions of the Industrial Relations Act 1996, and of the regulations under that Act, relating to appeals from the Local Court to the Industrial Court in connection with offences against that Act apply to proceedings before the Local Court for Category 3 offences." 16Clause 7 of Sch 4 to the WHS Act as originally passed, provided as follows: "7(1) Part 13 (Legal proceedings) extends (subject to this clause) to proceedings in connection with the OHS Act in relation to offences committed against the OHS Act before its repeal or in relation to any related matter that continues to have force or effect. (2) This clause applies whether any such proceedings are pending on the repeal of the OHS Act or whether the proceedings are instituted after that repeal. (3) Part 13 applies with such modifications as are prescribed by the regulations or as are necessary for the purposes of applying that Part to any such proceedings." 17This provision expressly dealt with the prosecution of offences which occurred prior to the repeal of the OH&S Act. 18On 28 October 2011 regulations described as the Work Health and Safety (Savings and Transitional) Regulation 2011 (the initial regulations) were made. These regulations were expressed to be made under the WHS Act, including cl 1 of Sch 4. The explanatory note to the initial regulations state that the object was to provide transitional arrangements for the prosecution after the repeal of the OH&S Act of offences committed under that Act before its repeal. This object was described by the Minister as follows: "After consultation with the Attorney General and after extensive discussions, the Government has now determined the transitional arrangements for the courts arising out of the Work Health and Safety Act 2011. As members are aware, one of the outcomes of the harmonisation process is that there will be a transition of work health and safety prosecutions from the Industrial Court of New South Wales to the mainstream courts and primarily to the District Court of New South Wales. ... The transition from the Industrial Court to the District Court has been an important issue and the Government wants to provide certainty to affected parties. All matters currently before the Industrial Court and all matters filed before 31 December 2011, with an exception, are to remain with the Industrial Court. The exception is where the alleged offence was committed after 7 June 2011, the date of assent. The Industrial Court continues to exercise jurisdiction in relation to offence proceedings taken before the Industrial Relations Commission, including contempt; declarations of right; proceedings for unfair contracts; proceedings for contravention of dispute orders; proceedings for registration and regulation of industrial organisations; proceedings for breaches of an industrial instrument, and for recovery of money under an industrial instrument other than small claims; proceedings on a superannuation appeal; and proceedings on appeal from a member of the commission or an industrial magistrate or another court."(New South Wales Legislative Council, Parliamentary Debates (Hansard), 19 October 2011 at 6652) 19Clauses 4, 5 and 6 of the initial regulations provided as follows: "4 Proceedings for an OHS offence alleged to have been committed before the repeal of the OHS Act are to be dealt with after the repeal of the OHS Act as if that Act had not been repealed, except as otherwise provided by this Regulation. 5 Proceedings for an OHS offence that are commenced after the commencement of the WHS Act are to be dealt with as follows: (a) proceedings are to be dealt with summarily before the Local Court or the District Court in its summary jurisdiction, except as provided by paragraph (b), (b) proceedings for an offence against section 32A (Reckless conduct causing death at workplace by person with OHS duties) of the OHS Act are to be taken on indictment. 6 Proceedings for an OHS offence alleged to have been committed on or after 7 June 2011 that were commenced in the Industrial Court before the commencement of the WHS Act but not finally determined by the Industrial Court before that commencement are discontinued in the Industrial Court on that commencement and are then to be dealt with: (a) summarily before the District Court in its summary jurisdiction, unless paragraph (b) applies, or (b) on indictment in the case of proceedings for an offence against section 32A of the OHS Act." 20There was some debate during the hearing of the application as to whether the initial regulations were inconsistent with cl 7 of Sch 4 of the WHS Act. Although it is not necessary to finally determine that issue, in my opinion they were not; the initial regulations merely modified Pt 13 of the WHS Act to enable it to apply to prosecutions under the repealed OH&S Act. 21Prior to coming into effect the WHS Act was amended by the Work Health and Safety Legislation Amendment Act 2011 (the Amendment Act) which was assented to on 28 November 2011. That Act provided that the WHS Act was to commence on 1 January 2012. It repealed s 229B(5) of the WHS Act and replaced cl 7 of Sch 4 of that Act with the following provision: "(7) Without limiting clause 1, the regulations under that clause may make provision for or with respect to: (a) the continued operation after the commencement of this Act of a regulation or provision of a regulation made or continued in operation by or under the OHS Act or by or under an Act repealed by the OHS Act, or (b) anything done under any such regulation or provision and having any force or effect immediately before the commencement of this Act." 22Thus the position at 1 January 2012 was that the OH&S Act was repealed from that date, regulations made under that Act were preserved, but there was no express provision in the WHS Act dealing with the prosecution of offences occurring prior to the repeal of the OH&S Act. 23The initial regulations were repealed by the regulations which received assent on 16 December 2011 and commenced on 1 January 2012. The regulations were expressed to be made under the WHS Act including s 276 of and Sch 3 to that Act. They were said to be substantially uniform with the Model Work Health and Safety Regulations 2011 prepared by Safe Work Australia. It should be noted that the Model Regulations provided that each State would make its own saving and transitional regulation. 24Clauses 2, 3 and 4 of Pt 2 of Sch 18B to the regulations are in the following terms: "2 Proceedings for an OHS offence alleged to have been committed before the repeal of the OHS Act are to be dealt with after the repeal of the OHS Act as if that Act had not been repealed, except as otherwise provided by this Part. 3 Proceedings for an OHS offence that are commenced after the commencement of the WHS Act are to be dealt with as follows: (a) proceedings are to be dealt with summarily before the Local Court or the District Court in its summary jurisdiction, except as provided by paragraph (b), (b) proceedings for an offence against section 32A (Reckless conduct causing death at workplace by person with OHS duties) of the OHS Act are to be taken on indictment. 4 Proceedings for an OHS offence alleged to have been committed on or after 7 June 2011 that were commenced in the Industrial Court before the commencement of the WHS Act but not finally determined by the Industrial Court before that commencement are discontinued in the Industrial Court on that commencement and are then to be dealt with: (a) summarily before the District Court in its summary jurisdiction, unless paragraph (b) applies, or (b) on indictment in the case of proceedings for an offence against section 32A of the OHS Act." 25It is these provisions of the regulations whose validity is challenged. 26The WHS Act as enacted and subsequently amended contains two sets of provisions relating to the making of regulations. There is a general regulatory power in s 276 which relevantly provides as follows: "276(1) The Governor may make regulations in relation to: (a) any matter relating to work health and safety, and (b) any matter or thing required or permitted by this Act to be prescribed or that is necessary or convenient to be prescribed to give effect to this Act. (2) Without limiting subsection (1), the regulations may make provision for or in relation to matters set out in Schedule 3...." 27The only relevant provision of Sch 3 is cl 14 which is in the following terms: "14 Matters relating to the review of decisions under the regulations including: (a) prescribing decisions as reviewable decisions for the purposes of Part 12 or for the purposes of the regulations, and (b) prescribing procedures for internal and external review of decisions under the regulations, and (c) conferring jurisdiction on the Local Court or the Industrial Relations Commission to conduct reviews under the regulations." 28In addition, cl 1 of Sch 4 to the WHS Act makes provisions for savings and transitional regulations in the following terms: "1(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts: this Act (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication. (4) A provision referred to in subclause (1) has effect, if the regulations so provide, despite any other clause of this Schedule. (5) The power to make regulations under subclause (1) extends to authorise the making of regulations whereby the provisions of this Act are deemed to be amended in a specified manner, but any regulation made pursuant to this subclause: (a) may only be made for or with respect to matters for or with respect to which this Act makes provision, and (b) may not be made so as to have effect after 31 December 2012, and (c) ceases to have effect, unless sooner revoked or otherwise ceasing to have effect, on 31 December 2012." 29Subclauses (4) and (5) of cl 1 of Sch 4 were inserted into the WHS Act by the Amendment Act which, as I indicated above, also amended cl 7 of that Schedule. 30The above provisions are those most relevant to Ground 1 of the summons filed on behalf of the applicants. 31So far as Ground 2 is concerned, as I indicated s 229B(5) of the WHS Act as originally passed was repealed by the Amendment Act. However, s 170(3) of the CPA provides that Pt 5 of Ch 4 of that Act applies to proceedings before the District Court. The relevant rule for the purpose of s 246(2) of the CPA is r 26 which provides as follows: "26(1) Proceedings under section 246 must be commenced in the Court by an application in the approved form for the issue of a summons or for the issue of a warrant for apprehension. (2) The summons or warrant for apprehension must be in the approved form and must be lodged with the application. (3) A statement of facts in respect of the offence signed by the prosecutor applying for an order under section 246 is to be lodged with the application. (4) Where a prosecutor is seeking an order for the apprehension of a person, the application is to be accompanied by an affidavit setting out both the statement of facts and the reasons why a warrant is sought."

The judgment of the primary judge 32The primary judge dealt shortly with the argument that jurisdiction was not validly invoked because of extraneous and prejudicial material in the statement of facts attached to the application. He noted that Empire Waste conceded that the statement of facts contained all the necessary ingredients of the offence, but accepted it also contained arguments and conclusions and allegations of fact which were irrelevant and prejudicial. 33The primary judge concluded that the purpose of the statement of facts was to enable the court to determine whether it should use its coercive power to order a person to appear to answer a charge and were thus more limited than the purposes and functions of an indictment or information as identified by Spigelman CJ in Doja v The Queen [2009] NSWCCA 303; (2009) 198 A Crim R 349. 34The primary judge concluded that the statement of facts alleged sufficient matters to found jurisdiction and in those circumstances it satisfied the requirements of r 26(3). He held that he had no power to set aside the order and, further, that the statement of facts had not caused Empire Waste irredeemable prejudice in obtaining a fair trial so as to justify a permanent stay of the proceedings. 35So far as the validity of cls 2, 3 and 4 of Pt 2 of Schedule 18B to the regulations was concerned, the primary judge noted that the prosecutor relied for their validity on the power to make regulations of a savings or transitional nature contained in cl 1 of Sch 4 of the WHS Act. He concluded that the chronology of the legislation revealed a parliamentary intention to confer jurisdiction upon the District Court. He said at par [57] that at the time the Amendment Act was passed, the legislature "knew that the District Court was already, pursuant to clause 5 of the properly enabled Work Health and Safety (Savings and Transitional) Regulation 2011, expressly vested with jurisdiction to hear OHS prosecutions upon commencement of the Work Health and Safety Act 2011". 36The primary judge said that in those circumstances it was not surprising that the Amendment Act deleted cl 7 of Sch 4, the legislature believing it was redundant because of cl 5 of the initial regulations. His Honour said the legislature "could not have foreseen the next event". 37The primary judge then referred to the passage of the regulations and concluded that the intention of Parliament was that the District Court be invested with jurisdiction. For that reason he concluded the regulation was valid. 38The primary judge also rejected two subsidiary arguments advanced by Empire Waste. The first was that cls 1 to 4 of Sch 18B of the regulations could not have effect beyond 31 December 2012 because of the operation of cl 1(5) of Sch 4 of the WHS Act. The basis of this argument was that in conferring a power on the District Court to deal with offences against the OH&S Act committed prior to its repeal, the regulations expanded the jurisdiction conferred on the District Court by s 229B(1) of the WHS Act and thus could only be operative for the period referred to in cl 1(5) of Sch 4. 39In rejecting this submission the primary judge concluded that the regulation did not amend s 229B of the WHS Act. He stated that s 229B continued to operate in its terms. 40The second argument was that cl 3 of Sch 18B in removing the jurisdiction of the Industrial Court to hear proceedings under the OH&S Act that would otherwise continue pursuant to s 30 of the Interpretation Act 1987, amended the Interpretation Act which could not be affected by regulation. 41The primary judge rejected this submission, referring to s 5(2) of the Interpretation Act which provides that the Interpretation Act applies to an Act or instrument except insofar as a contrary intention was expressed in the Act or instrument concerned.

Ground 1 42The applicants pointed to the fact that a general regulation making power of the nature of that contained in s 276 of the WHS Act is strictly ancillary and would not support attempts to widen the purposes of the Act, to provide a new or different means of carrying out such purposes, or to depart from or vary the plan the legislature has adopted to attain its ends: Shanahan v Scott (1957) 96 CLR 245 at 250. 43Relying on the decision of the High Court in Willocks v Anderson (1971) 124 CLR 293, the decision of the Full Court of this Court in Ex parte McGuigan (1923) 40 WN (NSW) 129 and on Retirement Benefits Fund Board v Hingston (1997) 7 Tas R 134, the applicants submitted that Parliament must express a clear intention to permit regulations to confer a power or jurisdiction on a court. The applicants stated that this principle not only applied to a regulation making power of the general nature contained in s 276 of the WHS Act but also to a power to make regulations of a savings and transitional nature such as that contained in cl 1 of Sch 4 of that Act. 44The applicants submitted in the present case there was no such intention. They submitted that where Parliament intended to confer jurisdiction on a court it does so in clear terms and in the present case the terms of the regulatory powers are unambiguous and there was no incomplete scheme or regime without the impugned regulations as the Industrial Court continued to have jurisdiction to deal with contraventions of the OH&S Act by virtue of s 30(1) of the Interpretation Act. 45The applicants also submitted that in considering the regulation making power the requisite legislative intention should not be inferred from the retention of the impugned regulation, particularly as there was no compelling reason for Parliament to have delegated a power to remove jurisdiction from the Industrial Court and invest it in the District Court. 46The applicants also submitted that no implication of power to confer jurisdiction on the District Court to deal with offences under the OH&S Act by regulation arose from the conferral of jurisdiction on that Court to deal with offences under the WHS Act. They pointed to the fact that the scheme which existed under the WHS Act was different to that which existed under the OH&S Act and that in any event jurisdiction under the WHS Act was vested partly in the Industrial Court. 47The applicants also renewed the submission made in the Court below that to the extent the regulation was otherwise valid, its operation did not extend beyond 31 December 2012 having regard to the provisions of cl 1(5)(b) of Sch 4 to the WHS Act. 48At the hearing senior counsel for the applicants submitted that nothing could be inferred from the fact that the Model Work Health and Safety Regulations on which the regulations were based provided that each State would make its own savings and transitional arrangements. 49In support of its contention that it was not intended by Parliament that all prosecutions under the OH&S Act be brought in the District Court, senior counsel for the applicants pointed to cl 4 of Pt 2 of Sch 18B to the regulations, stating that it preserved the jurisdiction of the Industrial Court to deal with matters commenced in that Court which related to offences committed prior to 7 June 2011.

Ground 2 50The applicants submitted that consistent with the finding of the trial judge, a number of paragraphs in the statement of facts contained extraneous and prejudicial matters. This did not appear to be an issue. 51The applicants submitted that the statement of facts should only state facts in respect of the offence. They submitted that strict compliance with this requirement was mandatory for a number of reasons. First, the applicants referred to what they described as the mandatory terms of s 246(2) of the CPA, coupled with the express requirement in r 26 that the facts must be in respect of the charged offences. 52Second, the applicants pointed to the fact that the primary purpose of the statement of facts was to show a basis for the exercise of the Court's coercive powers and that the inclusion of prejudicial matters would "bring criticism of the justice system". The applicants pointed to the difficulty in establishing that such matters would cause irredeemable prejudice. 53At the hearing senior counsel for the applicants acknowledged that it would be expected that the statement of facts would not be looked at by the trial judge, but stated that it was "on the file" and would give the appearance of bias or potential unfairness.

Ground 1 54The prosecutor emphasised the validity of the regulation depended on the particular empowering provision in the Act in question and submitted that authorities on different empowering provisions were of little assistance. He emphasised that reliance in the present case was placed primarily on the savings and transitional regulation making power. He emphasised that it was necessary to construe the legislation in its statutory context. 55The prosecutor submitted that the context included other statutory provisions, in particular ss 9 and 166 of the District Court Act 1973 which enables criminal jurisdiction to be conferred on the District Court by any Act or law. He submitted that this would include a regulation. 56The prosecutor also pointed to the fact that s 170 of the CPA was amended by cl 4.6 of Sch 4 to the Amendment Act so as to apply Pt 5 of the CPA to the District Court. It was submitted this was done to facilitate criminal proceedings under the OH&S Act to be instituted in that Court. 57The prosecutor submitted the WHS Act and the regulations constituted a single scheme and consideration of the scheme as a whole demonstrated that Parliament intended the savings and transitional regulation making power to be used to confer jurisdiction to deal with prosecutions under the repealed OH&S Act. He described the scheme as a nationally harmonised scheme involving the adoption of a model Act and regulations with appropriate modifications being made for each particular jurisdiction. 58The prosecutor also relied on the legislative history, noting in particular that cls 2 and 3 of Sch 18B to the regulations were in the same form as cls 4 and 5 of the initial regulations which were repealed on the same day that the regulations were made. He submitted that this indicated the intention of Parliament that the District Court was to be the primary court to deal with work health and safety offences. 59In these circumstances the prosecutor submitted that there was no justification in limiting the savings and transitional provisions to exclude power to make regulations conferring jurisdiction on a court to deal with offences under the repealed Act. He pointed out the provisions are of a transitional nature as they could only apply to offences committed before 1 January 2012 in respect of which there was a two year limitation period. He submitted the result was neither inconvenient, improbable nor unjust. 60The prosecutor submitted that the position in the present case was analogous to that considered by McKechnie J in M & J Mitchell Pty Ltd v Director General of the Department of Transport [2011] WASC 66. In that case his Honour held that a general regulation making power was wide enough to confer jurisdiction on a Magistrates Court in respect of a particular offence having regard to s 9 of the Magistrates Court Act 2004 (WA) which empowered the conferral of jurisdiction on that Court by that Act or by other written laws. The prosecutor submitted that s 9 of the District Court Act was in similar terms. He submitted that McKechnie J was correct in distinguishing Willocks v Anderson supra, as it was concerned with a particular constitutional position of the High Court. 61The prosecutor submitted that the temporal limitation in cl 1(5)(b) of Sch 4 to the WHS Act had no operation in the present case as the regulation in question did not purport to amend s 229B of that Act. 62At the hearing senior counsel for the prosecutor pointed to the provisions of the Occupational Health and Safety Amendment Act 2011 to which I have referred above. He said that the regulations which effectively left jurisdiction to deal with offences under the OH&S Act prior to its amendment in the Industrial Court but thereafter conferred jurisdiction on the District Court, was consistent with a legislative intention that all matters under the new regime would be dealt with in the District Court. 63Senior counsel for the prosecutor also submitted that the legislature could be taken to have been aware at the time it passed the Amendment Act which repealed the then cl 7 of Sch 4, that the regulation which conferred jurisdiction on the District Court was in existence and had not been repealed.

Ground 2 64The prosecutor submitted that the flaws in the statement of facts did not lead to the result that the jurisdiction of the District Court was not properly invoked, as all necessary factual ingredients to constitute the offence were included. He submitted that any additional material could be severed or ignored. 65At the hearing senior counsel for the prosecutor also relied on s 16(2) of the CPA which provides that no objection should be taken to any indictment on the ground of a defect in substance or form.

Ground 1 66In considering the validity of cls 2, 3 and 4 of Pt 2 of Sch 18B to the regulations, the question which arises is whether or not the regulation making power contained in either s 276 or cl 1 of Sch 4 to the WHS Act enabled the making of those regulations. This involves a consideration of the width of the provisions as a matter of construction. 67The relevant principles of construction have been stated on a number of recent occasions by the High Court. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47], the plurality emphasised that construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meaning may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: see also Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at [41]; Federal Commissioner of Taxation v Consolidated Media Holding Ltd [2012] HCA 55; (2012) 87 ALJR 98 at [39]. 68Determination of the purpose of a statute or of a particular provision may be based not only on an express statement of purpose in the statute itself but also by inference from its text and structure and where appropriate, by reference to extrinsic materials. However, this process does not involve a search for what those who promoted or passed the legislature had in mind: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78]; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 87 ALJR 131 at [23]-[26]. 69Although these principles are well known they are of importance in the present case because, as set out in par [63] above, the Court was invited by the prosecutor to consider the matters of which the legislature would have been aware at the time the legislation was passed. A similar approach to that suggested in this submission seemed to have been taken by the primary judge: Inspector Brock v Empire Waste Pty Ltd [2013] NSWDC 38 at [57]. To the extent that this involved a consideration of the subjective knowledge and intention of members of the legislature, this approach is incorrect. Although extrinsic materials can be used as an aid to construction, they are not a substitute for the text considered in context: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518. 70However, in considering the construction of the legislation it is relevant to take into account the fact that it was part of an overall scheme constituted by the Act and regulations: Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1985) 156 CLR 651 at 652; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 at [19]; Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [37]. However, that does not mean that the scope of the regulation making power in the WHS Act can be expanded by reference to the regulations. 71It is convenient to turn first to the "necessary and convenient" regulation making power contained in s 276(1)(b) of the WHS Act. It is has been held consistently that such a provision does not authorise the conferral of jurisdiction on a court: Willocks v Anderson supra; Ex parte McGuigan supra; Retirement Benefits Fund Board v Hingston supra. 72It has been said that the validity of regulations depends upon construction of the empowering statute and that authorities are of little use: City of Footscray v Maize Products Pty Ltd (1943) 67 CLR 301 at 308. However, it seems to me that the decisions referred to above on relatively identical legislation are binding and should be followed. 73I should add that I do not consider the decision of the High Court in Willocks v Anderson supra depended on the particular constitutional position of the High Court. The Court reached the conclusion that the regulation was invalid in reliance on the principles summarised in Shanahan v Scott supra, holding that the relevant regulation was not confined to the same field of operation as marked out by the Act itself: Willocks v Anderson supra at 298-299. The particular position of the High Court was described as an additional reason. 74In the circumstances it seems to me irrelevant that jurisdiction could be conferred on the District Court by any Act or written law. The question in the present case is whether the enabling power in the WHS Act extended to passing the regulation in question. That depends upon the construction of the enabling provisions in the WHS Act and not the provisions of the District Court Act. To the extent that McKechnie J in M & J Mitchell Pty Ltd supra reached a contrary conclusion relying on a similar provision in the Magistrates Court Act (WA) to that contained in the District Court Act, in my respectful opinion his Honour was incorrect. 75Further in my opinion, the power to make regulations in respect of any matter relating to work health and safety contained in s 276(1)(a) of the WHS Act did not enable a regulation to be passed conferring jurisdiction on the District Court in respect of matters under the OH&S Act. 76In Shanahan v Scott supra at 250, the High Court emphasised that power to make regulations providing for all or any purposes necessary or expedient for the administration of the Act or for carrying out its objects, could not extend the scope or operation of the Act, or widen the purposes of the Act to add new and different means of carrying them out, or depart from or vary the plan that the legislature had adopted: see also Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402. In my opinion, the same principle would apply to a regulation making power in respect of any matter relating to work health and safety. That provision would not enable a regulation conferring jurisdiction on a court to hear prosecutions for breach of work health and safety laws, particularly in relation to offences under a repealed statute. Such a regulation would go beyond the field marked out by the Act: Carbines v Powell (1925) 36 CLR 88 at 91-92. 77However, it seems to me that in the particular circumstances of this case it was intended by the legislature that the transitional regulation making power in cl 1 of Sch 4 to the WHS Act would extend to the making of the regulations in question. The regulations were transitional. Prosecution for offences under the OH&S Act in respect of which there was generally a two year limitation period pursuant to s 107 of that Act meant that the regulations could only operate in respect of proceedings commenced prior to 1 January 2014. The regulations were thus transitional in the sense described by Lord Keith of Kinkel in R v Secretary of State for Social Security; Ex parte Britnell [1991] 2 All ER 726; [1991] 1 WLR 198 at 202: "As Staughton L.J. observed in the Court of Appeal, it is not possible to give a definitive description of what constitutes a transitional provision. In Thornton on Legislative Drafting, 3rd ed. (1987), p. 319, it is said: 'The function of a transitional provision is to make special provision for the application of legislation to the circumstances which exist at the time when that legislation comes into force.' One feature of a transitional provision is that its operation is expected to be temporary, in that it becomes spent when all the past circumstances with which it is designed to deal have been dealt with, while the primary legislation continues to deal indefinitely with the new circumstances which arise after its passage. In the present instance regulation 20(2) must eventually become spent, although it may be envisaged that that could take a considerable period of time." See also Australasian Meat Industry Employees Union v Hamberger [2000] FCA 1197; (2002) 102 FCR 74 at [42]-[43]. 78Further, the regulations in issue can be described as being of a transitional nature consequent upon the enactment of the WHS Act. This is because the WHS Act repealed the OH&S Act, thereby creating the need for transitional provisions to deal with offences which had been committed under the repealed Act. 79The legislative scheme brought into existence by the passage of the WHS Act and the regulations also lends support to the conclusion which I have reached. The WHS Act as enacted indicated an intention that offences under the OH&S Act be dealt with in a manner similar to offences under the WHS Act: cl 7 of Sch 4 as originally passed set out above at par [16]. That was consistent with the purpose of the provision as outlined in the Second Reading Speech to the WHS Act to better integrate breaches of work health and safety legislation with the general criminal law. 80The initial regulations were passed to modify Pt 13 of the WHS Act so it could apply to proceedings under the OH&S Act. One power to do this was contained in cl 7(3) of Sch 4. However, the initial regulation was also expressed to be made under the transitional regulation making power. 81If the only power to make the regulations was that contained in cl 7(3) of Sch 4, then the repeal of that provision would have effected a repeal of the initial regulations: Bird v John Sharp & Sons Pty Ltd (1942) 66 CLR 233 at 238, 250-251; Victorian Chamber of Manufactures v Commonwealth (Women's Employment Regulations) (1943) 67 CLR 347 at 372. However as I indicated, the relevant empowering provision which was in fact relied on included the transitional regulation making power in cl 1 of Sch 4 to the WHS Act. Thus the regulation to the extent it could be supported by the transitional regulation making power remained in force. 82The initial regulations were only repealed when the regulations came into force. The regulations sought to confer jurisdiction on the District Court in the same terms as the initial regulations. 83Thus from the time the WHS Act was passed, the relevant scheme sought to consistently provide for offences in the nature of those in question in the present case to be dealt with by the District Court. The means adopted was the use of the transitional regulation making power. 84In these circumstances it seems to me that the legislative intention was that the transitional regulation making power in cl 1 of Sch 4 to the WHS Act would include the conferral of jurisdiction on courts to deal with prosecutions concerning the repealed OH&S Act. The alternative is that the legislative intention was that the matter was left to be dealt with by the provisions of s 30 of the Interpretation Act. This seems to be contrary to the intent that work health and safety prosecutions, including offences covered by the Occupational Health and Safety Amendment Act 2011 referred to in par [13] above, be dealt with in the ordinary criminal courts. 85It follows that I do not agree that as contended by senior counsel for Australian Native Landscapes in the proceedings which were heard concurrently with the present proceedings, that the repeal of the original cl 7 of Sch 4 to the WHS Act evinced the legislative intention that OH&S prosecutions were to be dealt with as provided for by the repealed Act: Australian Native Landscapes Pty Ltd v McDonald [2013] NSWCA [395]. 86I do not think the decisions in Willocks v Anderson or Ex parte McGuigan supra preclude this conclusion. The regulation in question in Willocks v Anderson was not a transitional regulation and the statutory provision in issue, s 27 of the Apple and Pear Organization Act 1936 (Cth), was in the following terms: "The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to this Act, and in particular for prescribing penalties not exceeding One hundred dollars for any breach of the regulations, not being a breach for which a penalty is prescribed by this Act." 87The regulation in issue in Willocks v Anderson supra did not seek to deal with transitional matters. Similarly, the regulation in Ex parte McGuigan supra did not rely on a savings and transitional power and the regulation itself was not of a savings and transitional nature. 88Australian Native Landscapes also relied on the decision in Peacock v Newtown Marrickville and General Building Co-Operative Building Society No 4 Ltd (1943) 67 CLR 25. In that case Latham CJ at 40 pointed out that the National Security Act 1939 provided wide powers to make regulations relating to matters affecting public safety, the defence of the Commonwealth and the effectual prosecution of any war. However, there was no express provision in that Act conferring powers to invest State courts with federal jurisdiction by way of regulation. At least a majority (Latham CJ, Starke and McTiernan JJ) held that as a matter of power the Commonwealth legislation could enable such jurisdiction to be conferred by regulation but it required an express provision to do so: see Peacock supra at 40, 45 and 47; see also Rich J at 42. This case did not involve transitional regulations, nor is the present case concerned with the question of the conferral of federal jurisdiction on State courts. In these circumstances, Peacock supra does not require a conclusion contrary to the one that I have reached. 89Australian Native Landscapes also argued that the regulation departed from the positive provisions of the WHS Act. I do not agree. None of the provisions of the WHS Act deal with prosecutions under the repealed OH&S Act. That was why transitional regulations were necessarily consequent upon the repeal of the latter Act. 90The applicants also submitted that even if otherwise valid, the operation of the regulation could not extend beyond 31 December 2012 having regard to the provisions of cl 1(5) of Sch 4 to the WHS Act. I do not agree. Clause 1(5) only operates when the WHS Act is deemed to be amended by the regulations. These regulations do not amend the Act which does not deal with OH&S prosecutions. 91In these circumstances, Ground 1 has not been made out.

Ground 2 92As was pointed out by Basten JA in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 at [107]-[109] in the context of s 246 of the CPA and r 217B of the Industrial Relations Commission Rules which for relevant purposes were in similar terms as r 26, the requirement contained in s 246 and the rules has two purposes. First, to engage the jurisdiction of the Court and, second, to ensure procedural fairness to the defendant by providing the defendant with sufficient information to enable the charge to be defended. 93In the present case no objection was taken to the form of the charges and it was not contended that the statement of facts did not sufficiently particularise the elements of the offence. The fact that superfluous material was contained in the statement of facts does not operate to render the charge a nullity. To the extent that the inclusion of superfluous material amounted to a defect of substance, s 16(2) of the CPA would apply and no objection could be taken to its inclusion. 94In that context it should be noted that s 15(2) of the CPA defines "indictment" to include any process or document by which criminal proceedings are commenced. 95It follows that Ground 2 has not been made out.

Conclusion 96In the circumstances, in my opinion, the application should be dismissed with costs. 97BEAZLEY P: I agree with Bathurst CJ. 98HOEBEN JA: I agree with Bathurst CJ.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2013

Apple and Pear Organization Act 1936(Cth)

(2008) 161 LGERA 423

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