Inspector Jorgensen v Daoud

Reference - Occupational health and safety - Determination of point of law purportedly relating to Court's jurisdiction - Four questions referred pursuant to s 5AE Criminal Appeal Act 1912 - Not necessary to answer all questions - Question to be answered based on one of the questions referred - Statutory interpretation - Section 26 of Occupational Health & Safety Act 2000 - Offence not created under s 26 - Offence arises under the provision contravened by the relevant corporation. CATCHWORDS: Occupational health and safety - Section 50 of Occupational Health and Safety Act 1983 - Whether different to s 26 of 2000 Act - Charges - Principles to determine validity of charges - Requirements for proper statement of offence - Essential elements of offence required - Inaccurate or incomplete statutory provision - Reference to inaccurate or incorrect statutory provision does not, of itself, invalidate charges - Charges valid notwithstanding reference to incorrect statutory provision.

Occupational Health & Safety Act 1983 s 15(1) s 50 s 53 Occupational Health & Safety Act 2000 s 8(1) s 8(2) s 9 s 10 s 11 s 12 s 26 s 28 s 105 s 106 s 108 Industrial Relations Act 1996 s 170 s 193 s 197 s 197A Criminal Appeal Act 1912 s 5AE LEGISLATION CITED: Supreme Court Act 1970 s 23 Justices Act 1902 s 65 Police Services Act 1990 s 99 Taxation Administration Act 1953 (Cth) s 8Y

Morrison v Powercoal Pty Ltd (2004) 137 IR 253 WorkCover Authority of New South Wales (Inspector Kenneth George Martin) v Edmond Hubert Kuipers and Civil Services Pty Ltd [2004] NSWIRComm 393 Hookham v The Queen (1994) 181 CLR 450 Ex parte Lovell, re Buckley (1938) 38 SR (NSW) 153 R v Bartalesi, R v Fragassi (1997) 41 NSWLR 641 CASES CITED: Wehbee v Stamatios Voulgarakis & Anor (Studdert J, 22 October 1991, unreported) John L Pty Limited v The Attorney General (NSW) (1987) 163 CLR 508 Stanton v Abernathy 48 ACR 15 Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 De Romanis v Sibraa [1977] 2 NSWLR 264 WorkCover Authority of New South Wales (Inspector Lacey) v Graphic Security Pty Limited [1998] NSWIRComm 45

PROSECUTOR Mr J V Agius SC with Mr M P Cahill Solicitor: Ms J Healy Phillips Fox LEGAL REPRESENTATIVES:

DEFENDANT Mr S C Rothman SC with Ms W G Thompson of counsel Solicitor: Mr G Phillips Carroll & O'Dea

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President STAFF J Wednesday 22 June 2005 Matter No IRC 5127 of 2003

INSPECTOR PAUL JORGENSEN v ANDREW DAOUD Prosecution under section 26 of the Occupational Health and Safety Act 2000 Matter No IRC 5128 of 2003

INSPECTOR PAUL JORGENSEN v ANDREW DAOUD Prosecution under section 26 of the Occupational Health and Safety Act 2000

JUDGMENT OF THE COURT [2005] NSWIRComm 135 1 These matters have been referred to the Full Bench pursuant to s 5AE of the Criminal Appeal Act 1912 and s 196 of the Industrial Relations Act 1996 for determination of a point of law purportedly relating to the Court's jurisdiction. The initial proceedings involved prosecutions brought under the Occupational Health and Safety Act 2000 ("the Act"). 2 On 14 September 2001, an accident occurred at a building site in Balmain. A formwork platform collapsed, and two employees of Formbrace Contractors Pty Limited ("Formbrace") fell approximately 2.8m, sustaining injuries. At the time, two sub-contractors were walking underneath the platform. One was injured. 3 On 12 September 2003, the prosecutor filed four Applications for Orders alleging that Formbrace had contravened ss 8(1) and (2) of the Act and that Mr Andrew Daoud, a director of Formbrace, had contravened s 26 of the Act. On 3 October 2003 Haylen J ordered the two defendants to appear to answer the charges.

4 Relevantly, the charges against the personal defendant were as follows: In Matter No. IRC 5127 of 2003: I, Inspector Paul Jorgensen, ... allege that ANDREW DAOUD ... CONTRAVENED Section 26 of the Occupational Health and Safety Act 2000 in such case made and provided that: I allege that on 14 September 2001, the Defendant, a Director of Formbrace Contractors Pty Limited, breached s26 of the Occupational Health & Safety Act 2000 , in that Formbrace Contractors Pty Ltd, an employer, at the Balmain Shores project Stage 3 in Margaret Street, Balmain in the Sate [sic] of New South Wales ( Premises ) breached Section 8(2) of the Occupational Health & Safety Act 2000, in that it failed to ensure persons not in its employment, in particular Ryan Cross and Basem Taha, were not exposed to risks to their health and safety, arising from the conduct of Formbrace Contractors Pty Ltd undertaking while at Formbrace Contractors Pty Ltd place of work. In Matter No. IRC 5128 of 2003:

I, Inspector Paul Jorgensen, ... allege that ANDREW DAOUD ...

Section 26 of the Occupational Health and Safety Act 2000 in such case made and provided that:

I allege that on 14 September 2001, the Defendant, a Director of Formbrace Contractors Pty Limited, breached s26 of the Occupational Health & Safety Act 2000 , in that Formbrace Contractors Pty Ltd, an employer, at the Balmain Shores Project Stage 3 in Margaret Street, Balmain in the State of New South Wales ( Premises ), breached Section 8(1) of the Occupational Health & Safety Act 2000, in that Formbrace Contractors Pty Ltd failed to ensure the health, safety and welfare at work of all of its employees at the Premises, and in particular Jozo Tipura and Stipo Tipura. 5 On 4 May 2004, at a directions hearing for the four matters (which were listed together), Mr M Selinger, solicitor, appeared on behalf of the defendants before Marks J and advised the Court that Formbrace had entered a guilty plea in Matter Numbers IRC 5125 and 5126 of 2003 but were "figuring out particulars with the prosecution". In Matter Numbers IRC 5127 and 5128 of 2003, counsel for the defendants advised the Court that Mr Daoud pleaded not guilty and the matters were listed for a five-day hearing before Marks J commencing 23 November 2004. At the defendant's request, and in the absence of any opposition by the prosecutor, Matter Numbers IRC 5125 and 5126 of 2003 were stood over generally with liberty to apply pending a determination in the defended matters.

6 On the morning of the first day of the hearing, after dispensing with the reading of the charges (but before any discussion of the substantive occupational health and safety issues), the defendant objected to the jurisdiction of the Court on the basis that the Court did not have jurisdiction under the Act to hear the proceedings for a prosecution brought under s 26 of the Act.

7 The defendant's contentions centred upon the following statutory provisions: (a) Sections 50 and 53 of the Occupational Health and Safety Act 1983 which provide:

(1) Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that: (a) (Repealed) (b) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.

(3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed.

(4) In the case of a corporation which is a council of a local government area, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section.

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:

(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or

(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

(b) And ss 26, 28, 105, 106 and 108 of the 2000 Act which provide:

26 Offences by corporations - liability of directors and managers

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.

(3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed.

(4) In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section.

It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that:

(a) it was not reasonably practicable for the person to comply with the provision, or

(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

(1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily: (a) before a Local Court constituted by a Magistrate sitting alone, or (b) before the Industrial Relations Commission in Court Session.

(2) The maximum monetary penalty that may be imposed in those proceedings by a Local Court is 500 penalty units, despite any higher maximum monetary penalty provided in respect of the offence.

(3) The provisions of the Industrial Relations Act 1996 , and of the regulations under that Act, relating to appeals from a Local Court to the Industrial Relations Commission in Court Session in connection with offences against that Act apply to proceedings before a Local Court for offences against this Act or the regulations.

Note. Section 197 of the Industrial Relations Act 1996 deals with appeals against convictions or penalties in connection with offences against that Act. Section 197A of the Industrial Relations Act 1996 provides a right of appeal to the Full Bench of the Industrial Relations Commission in Court Session against a decision of a member of the Commission or a Local Court to acquit a person of an offence against this Act or the regulations.

(1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) with the written consent of a Minister of the Crown, or (b) with the written consent of an officer prescribed by the regulations, or (c) by an inspector, or (d) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate.

(2) In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by a Minister or a prescribed officer, is evidence of that consent without proof of the signature of the Minister or prescribed officer.

(1) An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence under this Act or the regulations, being an offence prescribed by the regulations.

(2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter dealt with by a court, the person may pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.

(3) A penalty notice may be served personally or by post.

(4) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.

(5) Payment under this section is not to be regarded as an admission of liability for the purpose of, nor in any way as affecting or prejudicing, any civil claim, action or proceedings arising out of the same occurrence.

(6) The regulations may: (a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and (b) prescribe the amount of penalty payable for the offence if dealt with under this section, and (c) prescribe different amounts of penalties for different offences or classes of offences, and (d) prescribe different amounts of penalties for the same penalty notice offence.

(7) The amount of a penalty prescribed under this section for an offence must not exceed the maximum amount of penalty which could be imposed for the offence by a court.

(8) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings which may be taken in respect of offences.

(9) In this section: authorised officer means: (a) an inspector, or (b) a person declared by the regulations to be an authorised officer for the purposes of this section.

8 The defendant also relied upon the decision of the Full Bench in Morrison v Powercoal Pty Ltd (2004) 137 IR 253 at [162] - [163], which discussed ss 50 and 53 of the Occupational Health and Safety Act 1983 ("the 1983 Act") in this way: [162] The corporate respondent has been found to be guilty of the offence under s 15(1) and it has also been determined that the corporate respondent has failed to make out a defence under s 53(a) of the Act. There is no residual onus on the appellant to now prove all over again, in respect of the personal respondent, the essential elements of the offence under s 15(1) and that the defence under s 53(a) was not available. All that is now required of the appellant in relation to the personal respondent is to prove beyond reasonable doubt the three elements of the offence under s 50(1) of the Act.

[163] We are not persuaded the defences under s 53 are available to the personal respondent in addition to those defences under s 50(1)(b) or (c). Section 53 provides a defence to any proceedings against a person for an offence against the Act. However, a person facing prosecution by virtue of s 50 is not the subject of proceedings for an offence against the Act: under s 50, if a corporation has committed an offence against the Act, such a person shall be deemed to have contravened the same provision (subject to the particular requirements of s 50). The very fact of deeming the contravention assumes that the person has not, in his or her own right, actually committed an offence. 9 In support of its objection, the defendant submitted before the trial judge:

(a) The Full Bench stated clearly in Morrison v Powercoal (at [163]) that "a person facing prosecution by virtue of s 50 is not the subject of proceedings for an offence against the Act".

(b) Sections 26 and 28 of the Act are tantamount to ss 50 and 53 of the 1983 Act and, accordingly, the Full Bench's decision applies to the Act.

(c) The only source of jurisdiction for this Court to hear occupational health and safety issues is s 105(1)(b) of the Act, which provides that "proceedings for an offence against this Act or the regulations are to be dealt with summarily before the Industrial Relations Commission in Court Session".

(d) The only source of authority to institute proceedings under the Act is s 106, which provides that various people (including an Inspector, as in this case) can institute "proceedings for an offence against this Act".

(e) Therefore, following Morrison v Powercoal , the Inspector has no authority to institute these proceedings and the Court has no authority to hear them.

(f) this does not mean that s 26 has no work to do. It would simply mean the Supreme Court of New South Wales would have the jurisdiction pursuant to its inherent jurisdiction under s 23 of the Supreme Court Act 1970.

(g) This point has not been argued before the Court, nor considered (other than in Morrison v Powercoal ); cases have been decided on the assumption that the Court has jurisdiction to deal with s 50 or s 26.

(h) As a secondary point, the Applications for Orders in these matters allege a contravention of s 26 of the Act, but it is not possible under the Act for s 26 to be contravened - any contravention must be a contravention of s 8. In this case, the defendant should have been proceeded against under s 8. This was a fundamental error which could not be simply described as a typographical error and thereby could not simply be corrected on the face of the record.

(i) These submissions were not precluded by the fact that the defendant had appeared and entered a plea; the defendant could not be taken to have submitted to a jurisdiction which does not exist.

(j) The proceedings should be dismissed for want of jurisdiction, in which case the merits of the matter would not have been dealt with, and the matter could not be referred to the Full Bench pursuant to s 5AE of the Criminal Appeal Act 1912 for a determination of this point of law. However, in the absence of such a determination, the defendant conceded that on any view of the nature or validity of the proceedings before Marks J, his Honour had jurisdiction to determine whether there was jurisdiction and jurisdiction and power to refer the matter to the Full Bench in accordance with s 5AE of the Criminal Appeal Act 1912 or pursuant to s 196 of the Industrial Relations Act 1996.

(k) In the alternative, the charges should be quashed. 10 Following these submissions, Marks J drew Mr Rothman's attention to s 50(2) of the 1983 Act (equivalent to s 26(2) of the Act) and Mr Rothman conceded that "there is no doubt that the person can be proceeded against and convicted, deemed to be convicted [sic], deemed to have contravened the Act" but maintained his assertion that if Morrison v Powercoal is correct, proceedings against such a person could not be proceedings for a contravention of the Act. 11 In response to the defendant's submissions, counsel for the prosecutor, Mr Cahill, submitted before the trial judge:

(b) This issue could have been taken when the matter was first before the Court some time ago.

(c) The defendant has analysed the third sentence of [163] in Morrison v Powercoal out of context. The Full Bench expresses a clear view in paragraphs [156] - [157] as to what constitutes an offence and [163] (and the meaning of s 50 of the 1983 Act) must be read in that context.

(d) The internal inconsistency is so readily apparent that the sentence cannot be read so as to have the ultimate effect contended by the defendant.

(e) The Full Bench's determination in Morrison v Powercoal that a defence under s 53 of the 1983 Act was not available to an individual director charged pursuant to s 50 was made on a number of different bases; it is not clear that this aspect of the Court's reasoning was critical to the outcome.

(f) If the defendant's submissions are correct, then there is a logical inconsistency in Morrison v Powercoal : had the Full Bench intended to state that there was no jurisdiction, then it would not have upheld the conviction. Such an internal inconsistency may have arisen because the Full Bench did not have the benefit of full argument on that point, which may be a reason to refer the matter to the Full Bench.

(g) It is not necessary for a charge to describe the legislative section under which it arises in order to be valid: it must describe the elements of an offence known to the law, and these elements are adequately described in the Applications for Order.

(h) It was open to the Court pursuant to s 5AE of the Criminal Appeal Act 1912 to refer the matter to the Full Bench for a determination of this point of law and the prosecutor had no objection to this course. 12 Following Mr Cahill's submissions, Mr Rothman SC advised that he had no objection to Marks J referring the point of law to the Full Bench pursuant to s 5AE of the Criminal Appeal Act 1912. Counsel for both parties agreed that there were no facts necessary for this determination, and that his Honour therefore need not be constrained by the existence of authorities for the proposition that matters should not be referred unless he had made findings as to the necessary facts. 13 Four legal questions were formulated by Marks J (in the absence of an agreed draft between the parties) for determination by the Full Bench: 1. Whether on the true construction of the Occupational Health and Safety Act 2000 (NSW) ("the Act") a charge alleging a contravention of s 26 of the Act is, for the purpose of ss 105 and 106 of the Act, (a) a "proceeding for an offence against this Act"; and (b) not within the jurisdiction of this Court and not a proceeding which an Inspector is authorised to commence.

2. Whether on the true construction of the Act a charge alleging a contravention of a provision of the Act by virtue of s 26 of the Act (howsoever arising) is, for the purposes of ss 105 and 106 of the Act a "proceeding for an offence against this Act".

3. Whether on the true construction of the Act, the charges laid in matters no. IRC 5127 and 5128 of 2003, respectively, each being a charge alleging that the Defendant contravened s 26 and breached s 26 of the Act are valid charges under the Act.

4. Whether a charge that the defendant, being a director of Formbrace Contractors Pty Ltd, breached s 26 of the Act in that that corporation breached a provision of s 8 of the Act is not a valid charge under the Act, because in those circumstances any breach by the defendant by virtue of the breach of the corporation of a provision of s 8 of the Act is, and can only be, a breach of the same provision of s 8 of the Act. 14 The questions do not, however, lend themselves to clear and readily useful answers, particularly given that some of the questions are framed in the negative. Further, in the case of question 4, the question effectively pre-empts an answer and, by its terms, is argumentative. We consider that question 3 is the most appropriate in the circumstances and is the only one that properly deals with the legal issues joined at first instance and notionally referred by his Honour. This was accepted by counsel for both parties during the hearing by the Full Bench. 15 Accordingly, we will address question 3 in our judgment and treat the other questions as unnecessary to answer. In this regard, we observe that the words "each being a charge alleging that the defendant contravened s 26 and breached s 26 of the Act" are redundant in the context of the question and we will answer question 3 as if those words were absent.

SUBMISSIONS BEFORE THE FULL BENCH 16 In summary, counsel for the defendant submitted:

(a) on any reading of s 26 of the Act, s 26 does not create an offence but instead creates a liability on two specific groups of persons in circumstances where a corporation has contravened the Act;

(b) ss 26(2) and (3) both support the proposition that s 26 does not create the offence but some other provision creates the offence;

(c) the Act must, in accordance with principle, be construed as a whole and there is no penalty provision relating to s 26 of the Act;

(d) support for the defendant's interpretation of s 26 can be drawn from the Full Bench's judgment in Morrison v Powercoal , notwithstanding that the Full Bench's consideration related to s 50 of the 1983 Act;

(e) s 26 is a deeming provision only and as such not a "proceeding for an offence against this Act" for the purposes of ss 105 and 106 of the Act and, on this basis, the Court has no jurisdiction to hear and determine the merits of the proceedings under s 105 and the authorised person has no authority under s 106 to commence proceedings; and

(f) that the charges against the defendant are void as they disclose no known offence at law and the Court does not have jurisdiction to apply s 170 of the Industrial Relations Act . 17 In summary, counsel for the prosecution submitted:

(a) s 26 does not strictly create an offence but is a provision which, subject to statutory defences, creates a mechanism whereby a court can find that a member of an identified class of persons should be taken as having contravened the same provision of the Act that a corporation has contravened;

(b) the offence for which the director is, therefore, liable to be punished is the offence for which, by virtue of the operation of s26, the director has been "taken to have contravened";

(c) to consider whether or not s26 creates an offence can be misleading; s26 gives rise to a liability for an offence if the requisite elements are proved;

(d) the extract from Morrison v Powercoal does not support the interpretation pressed by the defendant; and

(e) the charges as laid are not defective and to the extent they are considered defective, any defect can only be said to be technical and can be readily cured with no prejudice to the defendant. CONSIDERATION 18 At the outset, we express our concern as to the way in which the defendant has raised his argument. At issue is a technical argument which, for the reasons we will outline, we do not accept and which was raised before the trial judge on the first day of a five day hearing set down for the proceedings. This argument should have been raised by notice of motion filed earlier than the day of the hearing, particularly in circumstances where five days of court time had been reserved. 19 It should be stated that the defendant has significantly reduced his reliance on paragraph [163] of Morrison v Powercoal as the reference proceedings have developed, which correspondingly deprives him the supposed rationale that the lateness of its argument was consequent upon the date of judgment in Morrison v Powercoal five days before the hearing in this matter. Moreover, as became clear during the hearing before the Full Bench, the central tenet of the defendant's argument was that the charge, as framed, was a charge for an offence not known at law. During argument before the Full Bench, Mr Rothman for the defendant conceded that the Act creates an offence in relation to directors under s 8 and does so through an interplay between s 26 and s 8. Mr Rothman also conceded that s 8 did not achieve this of itself. 20 There is a further consideration in this respect. As the matter unfolded during the hearing before the Full Bench it became apparent that, if the technical argument raised by the defendant had been appropriately raised at first instance, the matters may not have been referred to the Full Bench. As counsel for the prosecution highlighted in their submission, Marks J indicated that, if the issue was construction of the charge, it was not a proper matter for reference to the Full Bench (and could have been considered, for example, in the context of an application for amendment). As Marks J stated (at 27): I would not personally be happy to refer that as a subsidiary question because I think I understand what the answer is, giving leave to amend if an application to amend were to be made, but there are still two primary issues that I think the most important one is raised by paragraph 163, and the second one is whether or not it is a contravention of section 26 or of section 8. 21 Further, the jurisdictional argument was raised by the defendant well after the defendant had pleaded not guilty and there is a question as to whether, by this plea, the defendant had already submitted to the Court's jurisdiction. While this issue was mentioned at first instance, neither counsel made submissions on it before the Full Bench. Given our answer to question 3 referred to us, it is unnecessary for us to consider this issue further. 22 We also observe that, despite the defendant's submission that the point has not been argued before the Court, nor considered (Morrison v Powercoal aside), Schmidt J briefly referred to it in WorkCover Authority of New South Wales (Inspector Kenneth George Martin) v Edmond Hubert Kuipers and Civil Services Pty Ltd [2004] NSWIRComm 393 at [60] - [62] after her Honour had determined that it was irrelevant to the matter before her. We trust that any apparent credence her Honour may have inadvertently lent to the defendant's argument will be dispelled by this decision, particularly given that senior counsel for the defendant in this matter accepted that the form of the charge that was before her Honour was valid. 23 While it became apparent during the hearing that the objection of the defendant arose from the particular wording of the charges and that, for the reasons which we will set out, the objection can be addressed without necessarily reaching a conclusion as to the effect of s26, we nevertheless consider it appropriate to consider the proper interpretation of s26 of the Act in light of the argument raised during the course of this matter. 24 As a result of the oral submissions of the parties during the reference, the respective positions of the parties as to the proper interpretation of s26 became:

(a) counsel for the defendant accepted that a director (or person involved in the management of the corporation) can be found to have committed an offence under the Act; and

(b) counsel for the prosecution contended that s26 does not strictly create an offence but is a provision which, subject to the exceptions in the section, creates a mechanism whereby the court can find that a member of an identified class of persons (a director or person involved in the management of a corporation) should be taken as having contravened the same provision of the Act that a corporation has contravened. Counsel for the prosecution also observed that it can be misleading to speak of whether or not s26 creates an offence. 25 We agree with counsel for the prosecution that s26 does not, of itself, create an offence. Rather, the actual offence that the individual is taken to have committed is the same offence committed by the corporation (for example, an offence under s8(1) of the Act). However, that does not suggest that s26 is not necessary. As counsel for the prosecution correctly identifies, s26 is the mechanism by which a director or person involved in the management of the corporation is taken to have committed the same offence that the corporation has committed. 26 We consider that there are two provisions in the Act which support this interpretation. First, in s26(1), each director and each person concerned in the management of the corporation is "taken to have contravened the same provision". The "same provision" that is referred to is the provision contravened by the corporation and this arises from the opening words of the subsection, "[i]f a corporation contravenes ... any provision of this Act or the regulations ...". This means that the offence that the individual is taken to have committed is a contravention of the provision that the corporation contravened rather than s 26 (assuming that the remaining conditions in s 26 are met). By virtue of s 26, the individual is taken to have committed an offence under the provision that the corporation has contravened even though under the terms of the other provision, they could not have been said to have contravened it (for example, because the provision, by its terms, creates an offence by the employer). We note finally that, during the hearing before the Full Bench, counsel for the defendant accepted this construction. 27 Secondly, s 12 of the Act deals with the penalties for offences under the Act and provides: 12 Penalty for offence against this Division A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision and is liable to the following maximum penalty: (a) in the case of a corporation (being a previous offender) - 7,500 penalty units, or (b) in the case of a corporation (not being a previous offender) - 5,000 penalty units, or (c) in the case of an individual (being a previous offender) - 750 penalty units or imprisonment for 2 years, or both, or (d) in the case of an individual (not being a previous offender) - 500 penalty units. 28 The Division referred to in s 12 is Division 1 of the Act and that Division contains ss 8 to 12 inclusive. Importantly, s 26 is not included within Division 1. Instead, the penalties in s 12 relate to the offence provisions in the Act found in ss 8 to 11 inclusive. To adopt the interpretation that s 26 creates an offence would mean that there would be no penalty applicable to that offence. We consider that this could not have been what was intended when the Act was enacted and, accordingly, consider that the terms of s 12 support the interpretation we have placed on s 26(1). 29 This interpretation of s 26 is supported by the approach that was taken by the High Court in Hookham v The Queen (1994) 181 CLR 450 when it considered the nature of an offence under a similar deeming provision under the Taxation Administration Act 1953 (Cth). In that case, Deane, Dawson and Gaudron JJ held (at 459): ...The "deeming" provisions in both s 5(1) of the Crimes Act and s 8Y of the Taxation Administration Act do not create a situation in which one person is to be regarded as having committed another person's offence. Rather, they require persons with the specified complicity in an offence to be regarded as parties to that offence. Section 8Y, in providing that the person is "punishable accordingly", is not providing for punishment for an offence which was really committed by the corporation and is only "deemed" to have been committed by that person; it is providing for punishment for an offence to which that person is deemed to be a party because of his or complicity in it.... 30 Our conclusion as to the interpretation of s 26 is not affected by the reference in s 26(2) to "proceeded against and convicted under a provision pursuant to subsection (1)". We do not consider that this supports the proposition that no offence is created under the Act and consider that it is simply a way of expressing the statutory framework that the liability of the individual arises as a result of the terms of s 26 and that the defendant is thereby taken to have committed the same offence which the relevant corporation has committed. Subsection (2) is a facilitative provision so that it is not necessary to commence proceedings against the relevant corporation in order to commence proceedings against the individual. 31 We note that counsel for the defendant also contended that s 26(3) makes it clear that the offence under the Act is the offence actually committed by the corporation, which cannot be said to be under s 26. We consider that s 26(3) does not have this meaning. The purpose of that subsection is simply to confirm that both a corporation and an individual can be found to have committed offences arising from the same event. 32 We also note that counsel for the defendant contended that their interpretation of s 26 was crystallised in the judgment of the Full Bench in Morrison v Powercoal in the following part of paragraph [163] (emphasis added): ... However, a person facing prosecution by virtue of s50 is not the subject of proceedings for an offence against the Act : under s50, if a corporation has committed an offence against the Act, such a person shall be deemed to have contravened the same provision (subject to the particular requirements of s50). The very fact of deeming the contravention assumes that the person has not, in his or her own right, actually committed an offence. 33 Counsel for the defendant submitted that, whilst this related to s 50 of the 1983 Act, it has application for the operation of s 26 of the Act in that it is an almost identical provision to the former s 50 and the only difference is the replacement of the word "deeming" with the phrase "be taken". We agree that there is no material difference between the terms of s 26 of the Act and s 50 of the 1983 Act and, accordingly, turn to consider the statement made by the Full Bench in Morrison v Powercoal. 34 We do not, however, accept the submission of the defendant that the extract crystallises his submissions or, indeed, otherwise supports his argument. The highlighted part of paragraph [163] needs to be read in context of the Full Bench's judgment. The purpose of the words "... a person facing prosecution by virtue of s 50 is not the subject of proceedings for an offence against the Act" is to explain that it is not necessary that a person facing prosecution because of the terms of s 50 must be shown to have committed the elements of the actual offence committed by the corporation (for example, the elements of a s 15 offence in the context of the 1983 Act; s 8 in the 2000 Act). It is only necessary to demonstrate that the matters set out in s 50(1) are satisfied (which, in the context of s 8 and s 26 of the Act, include that there is a corporate employer, that the corporate employer has contravened a provision of the Act (or regulations made under the Act) and that the defendant is a director, or person involved in the management, of that corporate employer). As counsel for the prosecution submitted, this is reflected in the phrase "in his or her own right" within the same extract. 35 The submission of the defendant is, in short, an example of parsing parts of the paragraph for the point of an argument and not reading the Full Bench's judgment as a whole or an extract of it in its context, both in terms of the surrounding paragraphs of the judgment and the issue being considered. The issue in Morrison v Powercoal being whether a personal defendant has a separate or additional right to raise the defences in s 53 of the 1983 Act (that is, in addition to those which the corporation might rely on). The fallacy of the defendant's argument that the highlighted words in paragraph [163] support his contention is clearly apparent when paragraph [163] is read in the context of the submission it was addressing and where it appears in the judgment. 36 We are satisfied that the Full Bench's judgment properly read in its terms does not mean or imply that s 50 does not create an offence under the 1983 Act but that, for the reasons given by the Full Bench (with which we agree), the section (and the same would follow for s 26) does not permit a defence under s 53 (or s 28) beyond a defence involving an examination of whether the relevant corporation has contravened the 1983 Act. 37 In summary, we consider that an offence is created by virtue of s 26 of the Act but that the offence is a contravention of the actual provision contravened by the corporation (for example, a contravention of s 8(1)). Are the charges laid in Matter Numbers IRC 5127 and 5128 of 2003 valid?

38 The charges laid in Matter Numbers IRC 5127 and 5128 of 2003 relate to a prosecution pursuant to s 26 of the Act and allege that the defendant contravened s 26 in that Formbrace Contractors Pty Ltd, an employer, breached s 8(2) (in the case of Matter No IRC 2003/5127), and s 8(1) (in the case of Matter No IRC 2003/5128), of the Act. Particulars of the relevant Formbrace breach are set out in each application for order. 39 Counsel for the defendant submitted that as s 26 cannot be said to create an offence, the charges are not valid as they fail to specify an offence known under the Act given that they have been brought as prosecutions under s 26 only. They further submitted that this defect cannot be corrected by amendment as the charges are void for failing to state an offence known at law; thus the Court is not invested with jurisdiction to apply s 170 of the Industrial Relations Act 1996 to amend the charges. Further, the charges are time barred and thus fresh charges cannot be commenced. Counsel for the defendant further submitted that as no offence is created under s 26, it is irrelevant to consider whether all of the essential elements of the provision are set out in the charge. 40 During the hearing, counsel for the prosecution submitted that this matter raises two essential questions: what is necessary for the proper statement of the offence? and, secondly, does the description of an offence by reference to an inaccurate or incomplete section mean the charge is a nullity? Counsel for the prosecution submitted that, irrespective of how the charges are described, the charges as laid each set out the essential elements to be proved against the defendant, albeit that they describe the offence as a breach of s 26 only. They further submitted that if the charges had described the breach as one of s 8 by virtue of s 26, there could have been no complaint. Accordingly, counsel submitted that it cannot be said that the charges are defective or so defective as to be a nullity. In the alternative, counsel for the prosecution submitted that, if the charges are defective, then any defect is only technical and could be readily cured with no prejudice to the defendant. 41 At the outset, we express our agreement with the prosecutor's submission that there could be no complaint if the charges had described the breach as one of s 8 by virtue of s 26. As the charge is against an individual who is not alleged to be the employer, it cannot be said that the charge should only refer to s8. It would also be correct, and indeed preferable, to describe the charge as a prosecution under s 26 for which the defendant is taken to have breached s 8. We also adopt the prosecution's contention as to the two essential questions to be answered in considering whether the charges are valid. 42 The requirements of a valid charge were considered in Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 53, where Jordan CJ observed, in the context of statutory reforms to the law relating to the exercise of summary jurisdiction: In the light of this legislation the law would appear now to be as follows. A magistrate has no jurisdiction to convict except for a statutory offence; and it is contrary to natural justice to convict a person of a statutory offence with which he has not been charged. Hence in order to support a conviction for an offence, it is necessary either that the information or summons upon which it is based should accurately state the acts necessary to constitute all the elements of that offence, or else, if they do not, that the accused person should have been accurately charged orally before the magistrate and should have raised no objection to the absence of the information or summons. 43 In R v Bartalesi; R v Fragassi (1997) 41 NSWLR 641 Hodgson A-JA with whom Handley JA and Studdert A-JA agreed, approved of and applied what Studdert A-JA had said in Wehbee v Stamatios Voulgarakis & Anor (unreported, Studdert J, 22 October 1991): Of course at common law any information laid was required to inform the justice before whom it was laid of the nature of the offence and the manner in which it had been committed and was required to alert a person accused of an offence to particulars thereof necessary to permit him to prepare his defence. See Ex parte Lovell; re Buckley (138) 38 SR (NSW) 153 and John L Pty Limited v The Attorney General 163 CLR 508 esp at 519. Nor has the including of s145A of the Justice Act eliminated the common law requirement that an information must identify the essential factual ingredients of the actual offence alleged to have been committed: see John L Pty Limited v The Attorney General (supra) and Stanton v Abernathy 48 ACR 15 esp per Gleeson CJ at 25. However in the present case, as I observed earlier, the defendant was alerted to the essential factual ingredients of the charge for which he was being brought before the Local Court. It does not seem to me, against this background, that it was an essential prerequisite to the magistrate proceeding to consider the substance of the charge that the information upon which the prosecution initially proceeded should have been specifically expressed a charging a breach of s99 of the Police Services Act 1990 . Nor do I consider that the fact that the charge was originally presented as constituting a breach of the repealed Act precluded the magistrate from dealing with the matter on the facts presented before him. 44 The test for determining whether charges laid are defective was also considered by Mahoney JA in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 (at 515) where he said: The form which an information should take has been the subject of consideration in many cases. In my respectful opinion, the decisions, and the terms which have been used in them, are not completely consistent. It is important for the decision of the present case to make certain distinctions and I shall therefore indicate the sense in which I have used the terms "defective" and "void". There is, I think, no exhaustive and definitive statement of what is necessary and sufficient to be contained in an information: see generally, John L Pty Limited v The Attorney-General (NSW) (1987) 163 CLR 508; De Romanis v Sibraa [1977] 2 NSWLR 264. Ordinarily, the information must state, and state correctly, the essential elements in law of the offence charged, the time of its commission, the place and manner of its occurrence and such other details as are necessary to allow the defendant to know that which he must meet. And the information must state only one offence: it will otherwise be objectionable as for duplicity. If the information is not, in this regard, in proper form, it is defective. 45 Mahoney JA also observed at 517 in the context of considering the scope of s 65 of the Justices Act 1902 to put aside or ignore defects: But on a literal approach, s 65 would offer no assistance if the defect lay in, for example, a mis-statement of the offence such that it could be corrected only by the deletion of the existing statement of it and the substitution of a corrected statement. In Ex parte Lovell; Re Buckley (at 168), Jordan CJ saw the English decisions of the equivalent legislation as establishing that it did not apply: if it appears that the information does not allege all the ingredients of the statutory offence or that the evidence did not prove it. 46 The applications for order in Matter Numbers IRC 5127 and 5128 of 2003 allege the essential elements of the offence - the defendant is a director of Formbrace, Formbrace had breached s 8(2) (in the case of Matter No IRC 2003/5127) and Formbrace had breached s 8(1) (in the case of Matter No IRC 2003/5128). Particulars of the Formbrace breach are listed in the application for order. We are satisfied that these are the essential elements to be proved against the defendant by the prosecution. Counsel for the defendant did not contend otherwise. 47 The key remaining issue is whether pleading the charges as a breach of s 26 (in that Formbrace breached s 8(2) of the Act), which as we have concluded does not of itself create an offence, rather than as a breach of s 8 by virtue of s 26, renders the charges defective notwithstanding that the essential elements of the offence are properly set out. We are not satisfied that the mis-description of the section under which the offence arises invalidates the charges. We agree with counsel for the prosecution that Bartalesi supports the conclusion that this does not, of itself, render the charges defective as long as the essential elements of the offence are properly set out. We also observe that the authority of Wehbee v Stamatios Voulgarakis and Anor referred to by Hodgson A-JA in Bartalesi involves a similar factual situation (albeit that Wehbee related to a reference to a repealed statute) and, in that case, it was held not to be fatal to the validity of the charges as the essential factual ingredients of the charge had been properly laid out. 48 We are also satisfied that the charges satisfy the test enunciated by Mahoney JA in Boral Gas as the essential elements of the offence are set out in the charge. During the hearing, the observations of Mahoney JA in Boral Gas were considered regarding his reference to a mis-statement of an offence (at 517). We consider that Mahoney JA was referring to a mis-statement of the essential elements of the charge rather than a mis-statement of the number of the relevant statutory provision and that this is consistent with his Honour's comments at 515, to which we have referred earlier. 49 Accordingly, we consider that as the applications for order adequately describe the essential elements of the offence, the charges are valid notwithstanding that they purported to be brought under s 26 of the Act. 50 Finally, although not strictly relevant given the foregoing discussion of the charges, we reject the defendant's reliance upon WorkCover Authority of New South Wales (Inspector Lacey) v Graphic Security Pty Limited [1998] NSWIRComm 45 in support of its written submission that "it is trite to state that a reference to the wrong statutory provision will be sufficient (in most cases) to defeat a charge". There is no such authority or proposition to be found in that case, in which Cahill J dismissed summonses alleging breaches of s 15(1) of the 1983 Act on the basis that the prosecutions were instituted against the wrong defendant and it was conceded by the prosecution that, following the misdescription of the defendant, it was unable to prove the essential elements in the charges. This is distinguishable in the present instance as there is no dispute as to whether the essential elements of the offence have been included in the charge. 51 Both parties have made submissions regarding whether any defects in the process might be corrected. Given our conclusions on the form of the applications for order, it is unnecessary for us to consider these submissions, except to observe that the charges could be readily corrected and, for the sake of clarity, application should be made to the trial judge that they are corrected to include a reference to the effect of s 26 being that the defendant is taken to have contravened the relevant subsection of s 8. 52 Therefore, turning to the questions referred to us. We have already expressed our views on the formulation of the questions and, now conclude that, in answer to question 3, the charges laid in Matter Numbers IRC 5127 and 5128 of 2003 are valid charges. 53 We therefore remit the matter to the trial judge and while we have already addressed the questions referred to us, the questions referred are answered in terms as follows:

1. Unnecessary to answer. 2. Unnecessary to answer. 3. (As modified as discussed in these reasons) Yes. 4. Unnecessary to answer. 54 We also order that the defendant pay the prosecutor's costs of the reference.

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