A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act (s 48). But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence.
21 The application of this principle, stated succinctly in the High Court judgment, does not involve any consideration of any particular esoteric or technically based science. The Act is concerned with things that go wrong in the workplace and that affect people at work. It is to be contrasted with a consideration of the application of highly technical, exotic provisions of the taxation legislation to complex interrelated structures of corporations involving, for example, an assessment of matters such as offshore transfer pricing arrangements. What needs to be undertaken in formulating a charge under the Act is the identification of what the defendant did that was wrong or what the defendant failed to do and should have done. These must also be identified in such a way that the defendant is made aware of matters such as the time and place at which the alleged contravention occurred.
22 With this in mind, I proceed to consider the charge as formulated in the application for order. The defendant is charged with being a supplier of plant between certain dates at named premises. It was said to have failed to ensure that the plant it supplied was safe and without risk to health when properly used, in breach of s 11(1)(a) of the Act.
23 The particulars of the charge state that the plant was for use by people at work, an essential ingredient of the offence as contained within s 11(1). The charge identifies the plant as being "a high-pressure oxygen transfer line and associated equipment including a hose." It was said to have been supplied to a named company at named premises.
24 The omissions are described in paragraphs (d) to (f) of the particulars of charge. Stated shortly, it was said that, firstly, there was a failure to conduct an adequate assessment of the plant to make sure it was safe when used, secondly, there was a failure to ensure that the plant itself was safe because it was not safe and, thirdly, there was a failure to conduct a risk assessment in relation to the plant to make sure that it was safe when properly used.
25 The charge concludes by naming a particular person, an employee of the company to whom the plant was supplied, as being placed at risk of injury.
26 My understanding of the charge as formulated and as contained in the application for order is that it contains all of the essential legal ingredients of s 11(1)(a) of the Act and makes reference to essential factual matters such as the time and place at which the offence was said to have occurred. The defendant, upon receipt of the charge, would, on this basis, understand that what was alleged against it was that it supplied certain plant which was not safe for the use to which it was intended, it had not taken steps to assess whether the plant was safe and it had not conducted a risk assessment to satisfy itself that the plant was safe.
27 Obviously, the defendant needed to know more. For that reason, it sought the particulars to which I have earlier referred. A perusal of those particulars contained in the prosecutor's solicitor's letters of 28 January 2009, which I have earlier set out, would readily identify that the charge was directed to the adequacy of the hose for use on a high-pressure oxygen line. The allegation is that the defendant did not obtain any accurate information about the suitability of the hose, it didn't make any enquiries about the suitability of the hose and it didn't tell anyone that there might be risks using the hose. The particulars repeat one of the particulars in the charge by asserting that the hose was not safe to be used.
28 Whilst the High Court in Kirk made it clear that a defendant charged with a breach of the Act must be made aware of the act or omission which is said to constitute the breach, fulfilment of this fundamental requirement will differ by reason of the differing factual circumstances which will apply in almost every case. In Kirk, an employer had permitted a farm manager to use an All Terrain Vehicle to deliver building materials. The farm manager had not used a formed road for this purpose but, for reasons that were unknown, proceeded to drive the All Terrain Vehicle down the side of a steep hill. The vehicle overturned and he was killed.
29 The allegations of breach against the defendant were described in general terms. They included the failure to provide or maintain safe systems of work in relation to the operation of the vehicle, the failure to provide information, instruction, training and supervision, a failure to provide adequate information about the use for which the vehicle was designed and about any conditions necessary to ensure that it was safe and without risks to health when used, a failure to ensure that it was only operated by persons with appropriate training and a failure to "adequately identify, assess and control risks and hazards …" in relation to the operation of a vehicle on the farm.
30 The High Court held that the particulars were inadequate. The particular acts and the particular omissions which gave rise to the alleged culpability of the defendant needed to be identified. There needed to be identification of the deficiency in the system of work or the measures that should have been taken to address the deficiencies. There needed to be particularisation of the information, instruction or training that should have been given and the like.
31 The factual situation that applied in Kirk may thus be described as an existing state of affairs within which, on a particular occasion, an employee was fatally injured.
32 The factual circumstances that applied in these proceedings are, in my opinion, relevantly different. Here the charge arises out of a positive act on the part of the defendant, namely the fact of the supply of particular plant to a particular company during a particular period. In these circumstances, it is much easier for the defendant and the Court to comprehend the nature and extent of the charge, even in the general way in which it is described in the application for order. Whilst there are allegations of a failure to do certain things, they are matters that are associated with a positive act, namely the supply of plant that is alleged to have been inherently unsafe.
33 I would conclude, from my reading of the charge as formulated, that it does not suffer the defects identified by the High Court in Kirk. In coming to this conclusion, I have not considered in any way whether and to what extent any further particularisation of the charge should appropriately be made by the prosecutor. There are two reasons why I need to state this. The first is that the prosecutor has signalled an intention to seek to amend the charge. To the extent that the amendment elucidates the charge and introduces greater specificity, it should be encouraged to do so, subject of course to any argument that the defendant may wish to raise in opposition to such amendment. Secondly, there is, as shall be seen, a great deal more particularity available to the defendant in these proceedings, which I have not as yet discussed, but shall do so when considering whether the Court should exercise its discretion to allow the defendant to withdraw its plea of guilty.
34 Having concluded that the charge does not suffer the same defect as identified by the High Court in Kirk, it is strictly not necessary that I refer to the balance of the defendant's submission, namely that the charge is so incurably defective that it is not amenable to amendment. Out of deference to the submissions made by the defendant and in the event that the proceedings are to be considered further on appeal or by some other Court by some other process, I shall state my reasons briefly for rejecting the defendant's submissions.
35 There is a discussion about the circumstances in which a defective charge may be cured in the judgment of Basten JA in the New South Wales Court of Appeal in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; 165 IR 7. Mason P agreed with his Honour's reasoning. Spigelman CJ dissented as to the overall result. Commencing at [102], Basten JA deals exhaustively with the essential elements of the charge in those proceedings, the statutory provisions that govern prosecutions for a breach of the Act in this Court and the statutory provisions that permit of a power of amendment. His Honour also deals with the relevant principles that enable a court to determine whether a charge has been validly brought and whether there are defects that are capable of being rectified by amendment or the provision of particulars. At [122] his Honour said: