(f) the equating of the two bodies (the body dissolved and the new one) as the one body for the purpose of succession to criminal liability could only occur by legislative enactment which would usually be expected to be accomplished in words "clearly so stated": Energy Australia at 232, Freight Rail Corporation at 121, Roads Corporation at 384.
20 The Full Bench went on to briefly refer to successor provisions in other statutes and in the Occupational Health & Safety Act 2000, observing at [49] that in WorkCover Authority (NSW) v Rail Infrastructure Corp (2001) 111 IR 442 and also in WorkCover Authority (NSW) v Energy Australia (formerly Sydney Electricity) (1998) 85 IR 99, the legislature expressly provided that the successor body was to be considered as the same legal person as the former body, or having the same legal personality as the former body.
21 In referring to the enactment of the Occupational Health & Safety Act 2000, and in particular s 123 (which was not in force at the time of the offence that was considered in Country Energy), the Full Bench observed at [53]:
The legislature in enacting these provisions, particularly s 123, appears to have accepted the approach of Hungerford J in the 1998 judgment in Energy Australia that if it was intended to transfer criminal liability from one statutory corporation to another or to equate a defunct body and its successor for such purposes it could be expected that the words used by the legislature would clearly state the requisite intention. We do not consider that the provisions considered in these proceedings do that.
22 The defendant submitted that it could not be contended that the defendant is a successor to Copmanhurst Shire Council as it carries on substantial activities which differ from the activities previously performed by Copmanhurst Shire Council.
23 I firstly turn to consider the words of s 123 of the Act. In my view, in light of the structure and effect of s 123 and its surrounding provisions, the clear intention of the legislature, as stated by the then Attorney General, is to ensure that a change in the corporate makeup of a government corporation does not interfere with the protection of employees that is provided in the objects of the Act which are to be found in s 3. These objects are to promote the health, safety and welfare of people at work. It was common ground that the defendant is a government corporation. It is clear from the terms of s 123(2) that "Proceedings for an offence against this Act … may be continued or instituted against its successor if the successor is a government corporation". The clear intent of the provision is to transfer criminal liability from one statutory corporation to another, or to equate a defunct body and its successor for such purposes as was observed by the Full Bench in Country Energy. So much was conceded by the defendant.
24 Section 123 therefore overcomes the determination by the Court in Country Energy. It means that specifically a government corporation taking over from another government corporation could be made a successor in law including in respect of criminal matters.
25 This leaves the question of the purpose of s 123 and whether the defendant council is a successor. This is a mixed question of fact and law to which reference should be made to the circumstances of this matter.
26 I consider that s 123 has the purpose of transferring criminal liability from one government corporation to another providing that the government corporation is a successor.
27 It is therefore necessary to determine what is a successor. Viewed in its proper context, s 123 deals in particular with Crown employment in that context, and not in the private business context. For example, s 123(1) includes State owned corporations, a corporation that is an area health service or statutory health corporation. It also includes a local council or a county council.
28 The word "successor" is defined by the Internet site Dictionary.com, as "a person who follows next in order; a thing or person that immediately replaces something or someone; a person who inherits some title or office". Black's Law Dictionary (Seventh Edition) defines successor as "a person who succeeds to the office, rights, responsibilities, or place of another; one who replaces or follows another; a corporation that, through amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier corporation".
29 In light of the meaning I have discerned s 123 to have, in my view, it is not necessary to undertake the extensive examination set out at [28] of Country Energy (referred to earlier in this judgment) to determine the issue that arises in this matter. However, it is necessary to determine when successorship occurs. The defendant is a new agency which includes the former Copmanhurst Shire Council, irrespective for the most part what form it takes. In light of that resolution, critical in dealing with the question is the Proclamation. Proclamations of this kind would not normally affect criminal proceedings but rather only civil matters. However, this Proclamation clearly preserves criminal proceedings that were commenced, or could have been commenced. The factual situation here is that a small council has become part of a larger council. It appears that the defendant has taken over broader activities than the activities previously undertaken by Copmanhurst Shire Council, although its activities form some part of it. This is a factor of successorship.
30 There was some reference during the hearing to authorities that deal with successorship in the context of industrial awards. The test applied by the High Court in Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation and ors (1990) 171 CLR 216 ("the ATOF case") at 230 which was followed in a subsequent case (see PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648) is whether there is a substantial identity between the old activities carried out by the previous government corporation and those now carried on by the successor government corporation which correspond with the old activities.
31 Turning to the Proclamation itself, it makes clear in Schedule G, cl 1 Definitions, that the former area of Copmanhurst Shire Council is constituted as the defendant and "former Council" includes Copmanhurst Shire Council.
32 Clause 9 of the Proclamation (set out at [12] of this judgment) provides anything done, omitted or commenced by a former Council continues to have effect as if done, omitted or commenced by the new Council.
33 Clause 16(1) of the Proclamation provides for the transfer of assets, rights and liabilities from the former Councils to the defendant. In accordance with the decision of the Full Bench in Country Energy, without more, such a transfer would not be sufficient to result in the "transfer" of criminal liability. However, cl 16(2)(c) provides all proceedings relating to assets, rights or liabilities commenced before the transfer of a Council are taken to be proceedings pending against the defendant and cl 16(2)(d) makes similar provision in respect of any act, matter, or thing done or omitted to be done in relation to assets, rights or liabilities.
34 Finally, cl 16(3) defines liabilities as meaning "any liabilities, debts or obligations (whether present or future and whether vested or contingent) and includes liabilities relating to criminal acts".
35 The defendant contended that whilst cl 16(3) defined liability to include those relating to criminal acts, this should be construed as the civil liability of the defendant to pay damages arising out of criminal acts of Copmanhurst Shire Council, not as it being liable to be convicted of a criminal offence that it did not commit. I reject this submission. On a proper reading of the Proclamation, there is a clear intention for the transfer of criminal liability (see cl 16(3)). There is no reason to read down the reference in cl 16(3) to liability as having applicability only to civil liability arising out of criminal acts. It would not be appropriate, in my view, to so constrain the clear meaning within the Proclamation as contended for by the defendant.
36 In my view, and I find, the defendant is a successor to Copmanhurst Shire Council. It follows that the effect of s 123 is that on 25 February 2004 the criminal liability incurred by Copmanhurst Shire Council was transferred to the defendant.
37 Although counsel for the defendant raised whether there was sufficient evidence before the Court, I am satisfied that the evidence before me enables the determination of the issue raised by the notice of motion.
38 For these reasons, I therefore decline to grant the declaration sought by the defendant.
ORDERS
39 The Court makes the following orders:
1. The notice of motion is dismissed.