15 At the risk of being repetitious, the defendant's case regarding the proper interpretation of s 8(1) would appear to be constituted by the following propositions:
(a) that notwithstanding the Court has acknowledged that circumstances existed where it was impossible for an employer to ensure the health and safety at work of employees, the Court had interpreted s 8(1) (and its predecessor provisions) in such a fashion as to make compliance impossible;
(b) that the Court had construed s 28 and its predecessor so restrictively it did not constitute a real defence;
(c) that it was unreasonable to construe s 8(1) as casting an obligation on an employer to protect employees from a risk of injury of which the employer neither knew nor ought to have known and to do so was inconsistent with the rule of law; and
(d) that the common law authorities supported a construction of s 8(1) to the effect that an employer could only be held liable if the risk was reasonably foreseeable or, alternatively, the section is to be presumed to contain the requirement of a mental element which may be expressed as the absence of an honest and reasonable belief in a state of facts which if true would take the case outside the ambit of the offence.
16 The defendant's submission, put plainly, is that the Court has made it impossible to comply with s 8(1) of the Act notwithstanding that the Court has recognised that there are a myriad of circumstances where it is impossible for an employer to ensure the health and safety of its employees.
17 However, the authorities, in my opinion, are against the defendant. Three recent judgments, in particular, have dealt with the issues raised by the defendant. These are: Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156; (2008) 173 IR 465; Cahill v State of New South Wales (Department of Community Services) (No 3); and WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass & Joinery Pty Limited [2008] NSWIRComm 153.
18 The line of argument pressed by the defendant in these proceedings was very similar to that run by the claimants in Kirk before the Court of Appeal, albeit in relation to the predecessor provision to s 8(1), namely s 15(1) of the 1983 Act: see Kirk at [20] to [33]. The Court of Appeal (per Spigelman CJ; Hodgson JA and Handley AJA agreeing) relevantly held that: the Industrial Court has not adopted an interpretation of the 1983 Act that rendered the statutory duties imposed by the Act impossible of compliance and no jurisdictional error of law was made out either in the general jurisprudence of the Court, or in its application to this case ([37], [40], [61], [63]); and the test of reasonable foreseeability should not be introduced into ss 15(1) and 16(1) of the 1983 Act. At [41] Spigelman CJ stated:
[41] The claimants submit that any risk to safety had to be foreseeable. I reject the submission that a test of reasonable foreseeability should be introduced into each statutory obligation. Section 15(1) and s 16(1) are strict liability offences in the sense that a mental element is not part of the offence, whether expressed in terms of intention or negligence. I do not find any assistance in the cases relied upon by the claimants concerning actions in negligence by an employee against an employer.
19 The Court of Appeal also considered a submission by the claimants regarding the defence of honest and reasonable mistake of fact. In this regard, the Chief Justice stated at [42] to [43]:
[42] The claimants also referred to the defence of honest and reasonable mistake of fact, which, if applicable could give rise to a jurisdictional issue. (See Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151 at [43] referring to R v Badger (1856) 6 EL & BL 138; 119 ER 816.) The significance of this "defence" or ground of exculpation, has recently been reaffirmed. ( CTM v The Queen [2008] HCA 25 at [5]-[8], [35].) This "defence" was not relied upon before Walton J. Reference was made in the submissions before his Honour to the "defence", but the claimants did not and, on my reading of the decision in the Industrial Relations Commission and on appeal to the Full Bench, could not suggest that the "defence" had anything to do with this case.
[43] No fact was ever identified in the Industrial Court or in this Court which could serve to relevantly excuse any, let alone each, of the breaches established. Nor was the Court referred to any evidence about such a fact or of an honest and reasonable belief in it. The most the claimants could point to was that Mr Kirk could not believe that Mr Palmer acted as he did. However, as the extracts from Walton J's judgment set out at [17]-[19] above indicate, the actual accident did not exhaust the range of failures constituting the contravention. The "defence" of honest and reasonable mistake has nothing to do with this case.
20 It may be seen that the claimants' submissions regarding defence of honest and reasonable mistake of fact were not rejected on the basis of any point of law but rather on the basis that the defence had "nothing to do with this case."
21 In Cahill (No 3) the Court, as presently constituted, considered a submission by the defendant in that case that the offence with which the defendant was charged under s 8(1) of the Act was one in which there was an original obligation on the prosecution to prove mens rea. Alternatively, it was put that the offence was one in which the defence of honest and reasonable mistake of fact was available and, therefore, that the prosecution must undertake the burden of negativing the relevant belief beyond reasonable doubt. The Court held (at [256]) that actual knowledge was not required as an element of an offence under s 8(1). Moreover, that the terms of s 8(1) left no scope to presume mens rea was present as an ingredient of the offence to enable the defence of honest and reasonable mistake of fact to be raised. Nothing has been put in the present proceedings that would cause the Court to adopt a different view.
22 In WorkCover v Australand, Staunton J considered a submission by one of the defendants raising the issue of 'honest and reasonable mistake of fact' as a ground of exclusion from criminal liability to the substantive offences arising under s 8 of the Act. In doing so, her Honour considered the Court of Appeal's decision in Kirk, the judgment in Cahill (No 3) and the High Court's decision in CTM v The Queen (see WorkCover v Australand at [238] to [256]). Her Honour found (at [256]) that she could not agree with the defendant's contention that "the substantive offences arising under s 8 of the Act are not absolute and are subject to the common law exculpation of honest and reasonable mistake". I agree with her Honour's conclusion.
23 The defendant's contention was that the Industrial Court has construed s 8(1) in such a way as to make it impossible to comply with. This proposition needs to be considered in light of the nature of the offence. It is an absolute liability offence. Notwithstanding the philosophical arguments against absolute liability as a category of criminal offence (see, for example, R v Sault Ste Marie (1978) 2 SCR 1299 at [27] to [28] per Dickson J) the fact is the legislature has determined that offences against the general duty provisions of the Act are to be regarded as absolute liability offences: see Cahill (No 3). That is, such an offence entails conviction on proof merely that the defendant committed the prohibited act constituting the actus reus of the offence. There is no relevant mental element (see R v Sault Ste Marie at [22]) and no scope for a reasonable foreseeability test: Kirk at [41]. The offence falls into the class of offences regarded as regulatory offences. The Court in Cahill (No 3) sought to explain the nature of a regulatory offence at [189] to [190]:
189 The question of what constituted a regulatory offence was considered in R v Davies [2003] ICR 586 at 591 - 593….
190 In explaining the notion of regulatory offences…the Court in Davies stated:
[15] The first point to be noted about the legislation is that it is regulatory rather than prescriptive. This is important in the balancing exercise. Lord Clyde in R v Lambert [2002] 2 AC 545, 609, para 154, having said that the statutory provision in question (section 28 of the Misuse of Drugs Act 1971) could not be justified because the offence carried a sentence of life imprisonment, continued:
"A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The requirement to have a licence in order to carry on certain kinds of activity is an obvious example. The promotion of health and safety and the avoidance of pollution are among the purposes to be served by such controls. These kinds of cases may properly be seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy."
[16] The reasons for the distinction between truly criminal and regulatory offences were spelt out cogently by Cory J in the Canadian Supreme Court in R v Wholesale Travel Group Inc [1991] 3 SCR. He expressed the rationale for the distinction as follows, at p 219:
"The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.
"It follows that regulatory offences and crimes embody different concepts of fault. Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, conviction of a regulatory offence may be thought to import a significantly lesser degree of culpability than conviction of a true crime. The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner as criminal fault. Conviction for breach of a regulatory offence suggests nothing more than that the defendant has failed to meet a prescribed standard of care."
This distinction could be justified by what he called the licensing argument, at pp 228 - 229:
"while in the criminal context, the essential question to be determined is whether the accused has made the choice to act in the manner alleged in the indictment, the regulated defendant is, by virtue of the licensing argument, assumed to have made the choice to engage in the regulated activity ... those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility ... those persons who enter a regulated field are in the best position to control the harm which may result, and that they should therefore be held responsible for it."
and the vulnerability justification, at p 234:
"Regulatory legislation is essential to the operation of our complex industrial society; it plays a legitimate and vital role in protecting those who are most vulnerable and least able to protect themselves. The extent and importance of that role has increased continuously since the outset of the Industrial Revolution. Before effective workplace legislation was enacted, labourers-- including children-worked unconscionably long hours in dangerous and unhealthy surroundings that evoke visions of Dante's Inferno. It was regulatory legislation with its enforcement provisions which brought to an end the shameful situation that existed in mines, factories and workshops in the nineteenth century."
This analysis led him to conclude that the legislation in question which required the defendant to prove that he had exercised due diligence to prevent false and misleading advertising was not incompatible with the presumption of innocence in the Canadian Charter saying, at pp 244-245:
"Criminal offences have always required proof of guilt beyond a reasonable doubt; the accused cannot, therefore, be convicted where there is a reasonable doubt as to guilt. This is not so with regulatory offences, where a conviction will lie if the accused has failed to meet the standard of care required. Thus, the question is not whether the accused has exercise some care, but whether the degree of care exercised was sufficient to meet the standard imposed. If the false advertiser, the corporate polluter and manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance of probabilities that they took reasonable precautions to avoid the harm which actually resulted. In the regulatory context, there is nothing unfair about imposing that onus; indeed, it is essential for the protection of our vulnerable society."