Morrison v Chevalley

BACKGROUND 1 NOTICES OF MOTION 10 THE QUESTIONS OF LAW 12 THE LEGISLATION 14 THE CHARGES 19 MR GRUGEON'S POSITION 24 Analysis of Kirk 24 Question 1 25 Questions 2, 3(a) and 3(b) 26 Question 4 30 Question 5 31 Question 6 32 Answers 33 POSITION OF MR CHEVALLEY 34 ATTORNEY GENERAL'S POSITION 38 PROSECUTOR'S POSITION 40 Question 2 43 Question 3 44 Question 4 45 Questions 1, 5 and 6 46 SUPPLEMENTARY SUBMISSIONS 47 ISSUES RAISED BY THE QUESTIONS OF LAW 50 ISSUES FOR DETERMINATION 52 Hamilton v Holland 54 Whether jurisdiction to determine the questions of law 61 Essential elements of the offence under s 8(1) by operation of s 26 regarding the corporation 73 Essential elements of the offence under s 8(1) by operation of s 26 regarding directors, managers 74 Whether acts or omissions of directors are essential elements of the offence 81 Whether Kirk requires acts or omissions of directors to be pleaded by prosecutor 100 Whether the charges contain the essential elements of the offence in relation to the corporation 116 Whether the charges plead the acts or omissions of the corporation 120 Jurisdiction to quash, etc; jurisdiction to amend 137 CONCLUSION REGARDING QUESTIONS 1 TO 6 139 WHETHER INDUSTRIAL COURT IS A COURT OF A STATE 141 QUESTION 7 - CONSTITUTIONAL VALIDITY OF SECTION 26 152 Judicial Power - High Court authorities 154 Kable v DPP 157 Melbourne Harbour Trust 161 Williamson v Ah On 163 Polyukhovich 166 Lim 167 Kable 170 Nicholas 176 Bass 189 Fardon 190 Forge 195 Gypsy Jokers 197 K-Generation 200 International Finance 205 Principles to be drawn from authorities 209 The scheme of s 26 210 Presumption of innocence 226 Presumption of guilt 256 Conduct of others 259 Reasonable doubt may remain 261 Imprisonment 263 Mens rea and actus reus 266 Defences provided by s 26 are illusory 269 The right to silence is no right at all 276 Reliance on defence under s 28 not available 278 Non-executive directors 283 Double jeopardy 286 No need to particularise acts or omissions 288 Specialist court 290 Conclusions regarding constitutional invalidity 292 ANSWERS TO QUESTIONS OF LAW 297 COSTS 299

ANNEXURES Annexure A Application for Order: Hunter Quarries Pty Limited Annexure B Application for Order: Mr Chevalley Annexure C Application for Order: Mr Grugeon Annexure D Amended Application for Order: Hunter Quarries Pty Limited Annexure E Amended Application for Order: Mr Chevalley Annexure F Amended Application for Order: Mr Grugeon

1 On 5 June 2007, pursuant to s 246 of the Criminal Procedure Act 1986, Rodney Morrison, an inspector appointed under s 47A of the Occupational Health and Safety Act 2000 ('OHS Act 2000'), made Application for Orders against a corporate defendant and three directors of the corporate defendant, alleging that each defendant had failed to ensure the health, safety and welfare at work of Darren Smith, an employee of the corporate defendant, contrary to ss 8(1) and 26 of the OHS Act 2000. The four defendants were: (i) Hunter Quarries Pty Limited (the corporate defendant);

(ii) Richard Alexanda Badior, Director of the corporate defendant and Quarry Manager;

(iii) Grahame Antony Chevalley, Director of the corporate defendant and Managing Director; and

(iv) Hilton Ross Grugeon, a director of the corporate defendant and chairman of the Board of Directors.

The Applications in respect of the corporate defendant, Mr Chevalley and Mr Grugeon are set out in Annexures A, B and C of this judgment respectively. 2 The offences charged arose out of an incident on 14 June 2005 when a truck descending a haulage road at Hunter Quarry, Karuah left the haulage road, went over an embankment and rolled over. The driver, Mr Darren Smith, an employee of Hunter Quarries, was found deceased on the embankment face after the accident.

3 On 7 June 2007, Staunton J made orders exparte in respect of each of the four defendants requiring each to appear before the Court on 27 July 2007 to answer the offence charged in each Application for Order filed on 5 June 2007.

4 Mr Chevalley and Mr Grugeon entered pleas of not guilty before Staunton J on 15 February 2008. Hunter Quarries and Mr Badior subsequently entered pleas of not guilty.

5 On 7 October 2008, the trials in respect of all four defendants commenced before Backman J; by consent, all matters were heard together. During the course of that and the following day the prosecutor opened the prosecution case and tendered five volumes of documentary evidence without objection. 6 On 9 October 2008 the prosecutor, following discussion between counsel and without objection, sought and obtained orders from Backman J, substituting Amended Applications for Order in all four matters. The Amended Applications in respect of the corporate defendant, Mr Chevalley and Mr Grugeon are set out in Annexures D, E and F of this judgment. Following the amendment, Hunter Quarries and Mr Badior entered a plea of guilty to the amended charges, though not accepting the truth of all the facts alleged by the prosecutor against them. 7 Counsel for Hunter Quarries and Mr Badior agreed with the prosecution that those factual matters relevant to sentencing asserted by the prosecutor that they did not admit, should be determined by her Honour. Counsel for Mr Grugeon and Mr Chevalley each agreed with the prosecutor that their respective clients would be bound by the factual findings made by her Honour in the sentencing proceedings related to Hunter Quarries and Mr Badior. Her Honour acceded to this course.

8 The proceedings against Mr Grugeon and Mr Chevalley were adjourned and later set down for further hearing on 15 February 2010. 9 Backman J resolved the questions of fact upon which the parties had not reached agreement and delivered judgment in respect of the sentencing hearing on 30 October 2009: Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179. NOTICES OF MOTION

10 On 3 February 2010, the High Court of Australia delivered judgment in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531; 262 ALR 569 ("Kirk"). Mr Grugeon and Mr Chevalley, whose further hearing was scheduled for 15 February 2010, filed Notices of Motion seeking that the proceedings against them be dismissed or permanently stayed.

11 The primary contention in support of the Notices of Motion was that the charges underlying the Amended Applications for Order were invalid, null, void or otherwise bad at law and could not be the basis of the conferral of jurisdiction to the Court in accordance with the principles stated in Kirk. In particular, the defendants contended that the charges did not: (a) Plead nor particularise the essential elements necessary to sustain the charges against the Defendants;

(b) Disclose the relevant acts or omissions said to found a contravention of the Act;

(c) Particularise the acts, steps and/or measures which should have been taken by the Company and which are said to establish a contravention of the Act; and

(d) Particularise the acts, steps and/or measures which the Defendants should have taken in order to comply with the obligations imposed by the Act and which are said to establish a contravention of the Act. THE QUESTIONS OF LAW

12 Once the defendants filed their Notices of Motion, the prosecutor proposed a form of questions of law to be referred to the Full Court. The defendants posed their own questions. On 8 March 2010, Backman J referred six questions of law to the Full Court of the Industrial Court. The specific questions, which were referred under s 5AE(1) of the Criminal Appeal Act 1912 and s 196 of the Industrial Relations Act 1996, are as follows: 1. Does the Court, in consequence of an application made during defended proceedings for offences charged pursuant to the Occupational Health & Safety Act 2000 (NSW), have jurisdiction to determine each of the following questions?

If the answer to the first question is yes: 2. Are the charges stated in the Applications for an Order in Matter Numbers 956 and 957 of 2007 so lacking in identification of the essential elements of the offence that they do not attract the jurisdiction of the Court?

Are the charges stated in the Applications in Matter Numbers 956 and 957 of 2007 invalid, null or void because: (a) the Prosecutor has failed to plead or specify the essential ingredients or elements of an offence against ss 8(1) and 26 of the Occupational Health & Safety Act 2000 (NSW)? and/or; (b) the Prosecutor has failed to specify the essential factual particulars of an offence against ss 8(1) and 26 of the Occupational Health & Safety Act 2000 (NSW)?

If the answer to question 3(a) and/or (b) is yes, did the Court make valid Orders requiring the attendance of each of the Defendants in Matter Numbers 956 and 957 of 2007?

If the answer to questions 2 and/or 3(a) and/or (b) is yes and/or the answer to question 4 is no, does the Court have jurisdiction: (a) to quash the Orders;

(c) in the circumstances of the present cases, to stay permanently the proceedings;

(d) to make a declaration that the Defendants have no further obligation to attend the Court? 6. Does the Court have jurisdiction to hear and determine any application by the Prosecutor to amend the charges to amend any defect. 13 On 30 March 2010, Mr Chevalley filed a Notice of Motion requesting the Court to refer one further question of law. On 31 March 2010, Backman J made an order referring the additional question to the Full Court. The question was in the following terms: 7. Is s 26 of the Occupational Health and Safety Act 2000 (NSW) invalid because it violates the principles that underlie Chapter III of the Commonwealth Constitution? THE LEGISLATION

14 The two provisions central to the controversy are s 8(1) and s 26 of the OHS Act 2000. Section 8(1) imposes a duty on employers to ensure the safety of employees at work. It is in the following terms: 8 Duties of employers

An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 15 Section 26 is a deeming provision. If a corporation contravenes one of the general duties to ensure safety, each director and each person concerned in the management of the corporation is deemed to have contravened the same provision, subject to satisfying the court of one of the two defences. Section 26 is in the following terms: 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.

16 In Hookham v R [1994] HCA 52; (1994) 181 CLR 450 the High Court had occasion to consider s 8Y of the Taxation Administration Act 1953 (Cth), which was in the following terms: (1) Where a corporation does or omits to do an act or thing the doing or omission of which constitutes a taxation offence, a person (by whatever name called and whether or not the person is an officer of the corporation) who is concerned in, or takes part in, the management of the corporation shall be deemed to have committed the taxation offence and is punishable accordingly.

(2) In a prosecution of a person for a taxation offence by virtue of subsection (1), it is a defence if the person proves that the person:

(a) did not aid, abet, counsel or procure the act or omission of the corporation concerned; and

(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission of the corporation.

(3) For the purposes of subsection (1), an officer of a corporation shall be presumed, unless the contrary is proved, to be concerned in, and to take part in, the management of the corporation.

(4) In this section, 'officer', in relation to a corporation, means: … 17 Deane, Dawson and Gaudron JJ found at 458-459 that: The appellant's argument misconceives the function of s.8Y. That function is to reverse the onus of proof which would otherwise rest upon the prosecution of proving that a defendant who is concerned in, or takes part in, the management of a corporation is a participant in a taxation offence by reason that he or she aided, abetted, counselled, procured or was knowingly concerned in, or party to, its commission….

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 her complicity in it….

The appellant also submits that the Commonwealth has not suffered a loss by reason of the offences committed by him. That submission is again based upon the misconception that the offences committed by the appellant were a fiction, being only "deemed" to have occurred. But, as we have endeavoured to explain, the offences were actual offences to which the appellant was deemed to be a party. There is, therefore, no basis upon which to draw a distinction between the offences committed by the appellant and the offences committed by the corporation…. 18 The same approach may be taken to s 26, in our opinion. That is to say: a. the provision reverses the onus of proof which would otherwise rest upon the prosecution of proving that a defendant who is a director of the corporation, and each person concerned in the management of the corporation was in a position to influence the conduct of the corporation in relation to its contravention of the provision, or the defendant, being in such a position, did not use all due diligence to prevent the contravention by the corporation; b. the provision is not imposing liability for an offence which was really committed by the corporation and is only 'taken' to have been committed by the director or person concerned in the management of the corporation; it is providing for liability for an offence to which that director or person concerned is deemed to be a party because of his or her complicity in it; and c. there is no basis upon which to draw a distinction between the offences committed by the director or person concerned in the management of the corporation and the offences committed by the corporation. THE CHARGES

19 It may be seen from the relevant annexed Application for Order that the charge in the prosecutor's original application against the corporate defendant that it was alleged that: Hunter Quarries Pty Ltd... being an employer, on 14 June 2005 at the Karuah Quarry...failed to ensure the health, safety and welfare at work of...Darren Smith, contrary to s.8(1). 20 Then followed four 'particulars': (i) a failure to ensure that the premises controlled by the defendant were safe, in particular by failing to ensure that the haul road was constructed and maintained in a manner that was safe;

(ii) a failure to ensure that plant (the truck driven by Mr Smith) provided for the use of employees was safe;

(iii) a failure to provide such information, instruction, training and supervision as was necessary to ensure employees' (including Darren Smith's) health and safety; and

(iv) a failure to ensure that its system of work and the working environment of the employees, including Darren Smith, were safe.

Each of the particulars was underpinned by sub-particulars identifying the nature of each of the alleged failures. 21 The charge in the prosecutor's original and Amended Applications against Mr Grugeon (mutatis mutandis in the case of Mr Chevalley) asserted in part: I Rodney Morrison... an Inspector duly appointed...allege that Hilton Ross Grugeon... contravened Section 8(1) of the Act, on 14 June 2005 at the Karuah Quarry...in that the said Hilton Ross Grugeon was a Director of and concerned in the management of Hunter Quarries Pty Ltd... and on that date the corporation, being an employer at the said Karuah Quarry, a place of work, failed to ensure the health, safety and welfare at work of its employee, Darren Smith, contrary to s.8(1) of the Act. The Defendant is taken to have contravened s. 8(1) of the Act by operation of s.26(1) of the Act. 22 The particulars of the charge were: PARTICULARS OF THE CONTRAVENTION OF THE DEFENDANT A. At all relevant times the Defendant was a Director of the corporation; and B. At all relevant times the Defendant was concerned in the management of the corporation, inter alia as chairman of the Board of Directors of the corporation. PARTICULARS OF THE CONTRAVENTION OF THE CORPORATION

[The particulars of the contravention of the corporate defendant were here repeated.]

23 As earlier noted, in October 2008, the Applications were amended to the extent a number of the sub-particulars were withdrawn, however, the charges remained the same. MR GRUGEON'S POSITION

24 Senior counsel for Mr Grugeon undertook an analysis of the High Court's decision in Kirk. In this respect it was submitted: · there was no material difference between s 8(1) of the OHS Act 2000 and its predecessor, s15 of the Occupational Health and Safety Act 1983 (NSW) considered by the High Court in Kirk. There was also, relevantly, no material difference between the defence provision under the 1983 Act (s 53) and the OHS Act 2000 (s 26). · in Kirk, the plurality pointed out, in [13], that it is necessary for a charge in criminal proceedings, including occupational health and safety proceedings where a penalty can be imposed, for the prosecutor to identify the "matter" to be remedied to enable an order under the relevant provisions to be made. Reference was made to [14] in Kirk: 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. · specification of the charge is critical because it affects the defence that might be pleaded by the defendant: see Kirk at [26]; · in the present proceedings, as in Kirk, the statements of the offences as particularised do not identify what measures the Kirk company and Kirk could have taken but did not take (see Kirk at [28]). The charges are ambiguous where they must be explicit. Question 1

25 Mr Grugeon submitted the Court has the power to determine whether or not its jurisdiction has been properly engaged by the filing of the Application for Order, Amended Application for Order and the subsequent Orders which were made (see, for example, Inspector Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163). First, it was submitted the power to dismiss the charges is implied from the statutory conferral of power upon the Court as a superior Court of Record to decide matters arising from the OHS Act 2000. The Court has the implied power to uphold, protect and fulfil the judicial function by ensuring that justice is administered according to law: see for example Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 27 - 28 per Sheller JA; Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589 per Rich J; Hamilton v Oades (1989) 166 CLR 486 at 502 per Deane and Gaudron JJ. Secondly, it was submitted, the fact that the Court has the power to dismiss charges appears to have been recognised by the High Court itself in Kirk. In Kirk, the High Court held that there was an excess of jurisdiction and that the Industrial Court had erred in finding otherwise (Kirk at [74] and [75]). The High Court did not say that it was not open to the Industrial Court to determine such questions for itself. As held by Spigelman CJ (Mason P and Handley AJA agreeing) in Sing Yong Yim v Industrial Relations Commission of NSW [2007] NSWCA 77; (2007) 162 IR 62 at [21], the Industrial Court has jurisdiction to determine whether it has jurisdiction. Questions 2, 3(a) and 3(b)

26 It was submitted these questions traversed the same issues, namely, whether the charge identified the essential legal elements and the essential factual ingredients. The legal elements of the s 8(1) charge were identified by the defendant as follows: (a) The putative defendant must have been an employer at the time of the alleged offence. (b) That a risk arose. (c) That the risk was caused by an act or omission of the putative defendant. (d) That employees were exposed to the risk. (e) That there were practicable steps or measures available to the putative defendant which would have obviated or eliminated the risk and that the putative defendant failed to take these steps or implement these measures at the relevant time of the risk. 27 The legal elements for s 26 were identified by the defendant as follows: (a) A corporation exists. (b) The corporation has contravened the Act as set out above. (c) The person the subject of the charge is a director or person concerned in the management of the corporation. (d) That the person was in a position to control or influence the corporation with respect to the act or omission. (e) That the person did not takes steps to ensure the company did not do the act or omission in question and was thereby not duly diligent.

28 It was submitted the Amended Application for Order did not disclose the above elements and, specifically, it did not particularise the act or omission of Hunter Quarries Pty Ltd said to give rise to the offence, let alone the act or omission of the Defendant in his capacity as a director. It was contended the charge on its face alleged a breach of the general duty as contained in the Act without more. According to Kirk, such a charge was bad at law and this must also be the case where a person was charged under the deeming provisions of s 26 of the Act. 29 It was submitted the charge did not specify what the act or omission said to found the 'failure to ensure health and safety' is said to have been. It was this failure to specify the acts or omissions, which the High Court said, 'constitutes the offence', that left the defendant in the dark: see Kirk at [34]. Question 4 30 The relevant rule in place at the time the order was sought (see s 246(2) of the Criminal Procedure Act) was that found in r 217B of the Industrial Relations Commission Rules 1996. Rule 217B required the prosecutor to disclose the nature of the offence as alleged. Given that the underlying charges were bad at law this meant that r 217B had not been complied with. As a result the order to attend was made on an erroneous basis and without the relevant jurisdictional facts being satisfied so as to ground the order in law. Accordingly, the orders made by Staunton J and Backman J were of no effect. Question 5

31 It was submitted for the reasons referred to in question 1, the Court has jurisdiction to make orders in the nature of question 5 (a) - (d). Further, the Court has jurisdiction to make a declaration pursuant to s 154 of the Industrial Relations Act: Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1999) 99 IR 125. Section 154 includes a power to make a declaration that Staunton and Backman JJ misconstrued the relevant statutory provisions (ss 8 and 26 of the OHS Act 2000) and had no jurisdiction to make the order that each of them did. Question 6 32 The defendant submitted that this question (posed by the prosecutor) was hypothetical and did not arise in the proceedings. No application had been made by the prosecutor to amend the charge. Indeed, the prosecutor had informed the Court that at this stage, he did not intend to amend the charge. Accordingly, this was not a question capable of being answered by the Full Court. Answers 33 Accordingly, Mr Grugeon submitted the questions referred by Backman J should be answered in the following manner: (a) Question 1 - Yes; (b) Question 2 - Yes; (c) Questions 3(a) and 3(b) - Yes; (d) Question 4 - No; (e) Question 5 - Yes; and (f) Question 6 - Does not arise. POSITION OF MR CHEVALLEY

34 Mr Chevalley adopted the submissions filed on behalf of Mr Grugeon and raised further issues, chief amongst them being the proposition that s 26 of the OHS Act 2000 was constitutionally invalid. Notices under s 78B of the Judiciary Act 1903 (Cth) were served. Only the Attorney General for New South Wales sought to make submissions on the issue. Mr Grugeon's position regarding constitutional invalidity was that if, contrary to his submissions, all the prosecution needed to do was to solely plead s 26 of the OHS Act 2000 and thereby deem a contravention of the Act, without more, then there was considerable force in Mr Chevalley's contention that this would lead to the administration of justice in a manner inconsistent with Chapter III of the Australian Constitution and basic common law principles relating to the criminal justice system. 35 The main points made on behalf of Mr Chevalley regarding the invalidity of s 26 may be summarised as follows: a. The effect of s 26 of the OHS Act 2000 is that when a corporation is in breach of s 8(1) of the Act the directors are also taken to be in breach unless the court is satisfied that one of the exceptions in s 26(1)(a) or (b) applies ( Morrison v Powercoal (2004) 137 IR 253 at [157]; affirmed in Powercoal Pty Ltd v Industrial Relations Commission of NSW (2005) 64 NSWLR 406). b. The effect of s 26 is to reverse the onus of proof.

c. The effect of such a provision is to limit the presumption of innocence: to like effect, see R v Momcilovic [2010] VSCA 50 at [122] - [123]. d. Section 26 is constitutionally invalid because, as Gummow J stated in Nicholas v The Queen (1998) 193 CLR 173, the provision represents: 19 [S]uch an interference with the governance of a trial and a distortion of its predominant characteristics as to involve the trial court in the determination of criminal guilt of the accused otherwise than by the exercise of judicial power… e. State legislation will be invalid if it violates the principles that underlie Chapter III of the Commonwealth Constitution: Commonwealth v Queensland (1975) 134 CLR 298 at 315; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49.

f. The judicial process protected by the principles above is not restricted to State Supreme Courts: North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [153], [224] and [235]-[243]. Nor is it restricted to courts that are actually exercising federal jurisdiction, but extends to courts that are capable of being vested with federal jurisdiction under s 77(iii) of the Constitution.

g. A violation of Ch III can be characterised as an infringement or as a usurpation of judicial power: Nicholas v The Queen (1998) 193 CLR 173 at [112] per McHugh J. h. Section 26 infringes Ch III of the Constitution. This Court has been left with a function by the provision, but the function is so limited as to distort the character of the institution that fulfils it. i. Independence and impartiality are the basic requirements of a court's structure and competencies: North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146 at 163 [29]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 [10]; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 [92] and [111]. j. In International Finance Trust Company Limited v NSW Crime Commission [2009] HCA 49 at [52], French CJ approved the statement of Gummow and Crennan JJ in Thomas v Mowbray (2007) 233 CLR 307 at 355 [111] that 'legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III'. k. Section 26 removes the power of the Court to judge the criminal guilt of the defendant. Instead, the legislation replaces the presumption of innocence with a presumption of guilt. This device is plainly repugnant to the exclusively judicial function of adjudging and punishing criminal guilt of the defendant (see Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27 as applied in Kable v Director of Public Prosecutions (1996) 189 CLR 51). It removes the capacity of the court to exercise its exclusively judicial power of making the judgment whether a person is guilty of an offence by reference to the actual facts of the matter. 36 Mr M Thangaraj of counsel with Mr P Keyzer of counsel for Mr Chevalley, summarised his submission in 14 points, which he submitted, taken cumulatively, rendered s 26 constitutionally invalid: 1. Presumption of innocence does not exist.

3. Presumption of guilt is because of conduct of others. That is, the defendant may not have had anything to do with the contravention.

4. You can be convicted even though the Judge cannot decide whether the defence has established that it was a fifty/fifty case and also you can be convicted when the Judge has a reasonable doubt of your guilt.

Proof by the defendant that absence of actus reus is irrelevant.

Proof by the defendant that absence of mens rea is irrelevant.

The actual defence provided by s 26 is illusory. The role of the court is very limited. It removes any role in determining whether or not the director was in fact complicit in the contravention. Presumption of guilt is already there manifest as a conviction. That is why prosecutions rarely fail when the issue is whether or not the s 26 defence has been made out.

10. Disentitlement to rely upon the statutory defence of s 28 even though the Crown needs to prove that beyond reasonable doubt.

11. Section 26 fails to properly understand the different role played by non executive directors to that played by management.

12. Acquittals may be challenged on appeal, therefore the rule against double jeopardy does not apply.

13. The Crown apparently only needs to particularise failures of the company. It says it does not need to particularise acts or omissions of the individual defendant and this has many consequences by not permitting the defendant to be properly informed of his s 26 defence; properly informed about s 28 but may not be able to rely upon it; permits the Crown to split its case; permits the Crown to cross-examine at large and is a denial of procedural fairness issues that underlie Chapter III of the Constitution. 14. The Industrial Court is a specialist court exercising criminal jurisdiction, but lacks the advantage of judicial contributions from generalist benches.

37 Counsel for Mr Chevalley submitted in relation to each of the questions 1 to 6: In relation to Q1, the Court does have jurisdiction.

In relation to Q4, the Court did not make valid orders requiring the attendance of the defendants. The Orders were made pursuant to an offence purportedly against s 26. Section 26 is invalid. Even if the section is valid, the charge still fails as it is not properly pleaded and/or particularised.

As a consequence of the above, Q5 is enlivened. For the reasons outlined in the Submissions filed on behalf of Mr Grugeon, the Court does have jurisdiction to deal with the matters on one or more of those bases. The proceedings ought be brought to an end.

Q6 is hypothetical. The Prosecutor has not made an application to amend. It has repeatedly stated that it does not have any plans to amend. The referred Question therefore does not arise from the proceedings. It ought not be answered. In any event, s 26 is an invalid provision. Proceedings brought pursuant to it are invalid, null or void. They are not capable of being amended. ATTORNEY GENERAL'S POSITION

38 The Attorney General's intervention was only in relation to the question whether s 26 of the OHS Act was constitutionally valid. Mr R Burbidge QC with Ms K Richardson of counsel for the Attorney, helpfully provided the following overview of the Attorney's position: …

3. Section 26 is an example of an offence where a person is taken to be liable as a principal for a contravention because of that individual's role and status in the management of a body corporate that has contravened OH&S requirements, unless that person is able to establish to the civil standard of proof that a circumstance to which the legislation refers is present. There are numerous examples of such offences at Commonwealth, State and Territory level.'

4. It is well established on high authority that laws which alter or reverse the traditional common law criminal burden of proof do not thereby impede the exercise of the judicial power of the Commonwealth. It is submitted that this Court is bound to reject the defendant's constitutional challenge to sec 26.

5. Whilst not directly relevant to the legal argument, there is a clear policy justification for sec 26, one aspect of which is the clear legislative intent that the OH&S Act should impose proactive obligations on employers to create a safe workplace.

6. The defendant cites and relies on the Victorian case of R v Momcilovic [2010] VSCA 50 , a case decided upon the interpretation and application of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic). The New South Wales legislature has no equivalent to that Charter. The Momcilovic case provides no support for the determination of the question raised in the manner for which Mr Chevalley contends.

… 39 Counsel for Mr Chevalley provided a written reply. PROSECUTOR'S POSITION

40 The prosecutor identified the questions as raising the following issues: Questions 2 and 3 focus upon the charges, and raise the question of whether those charges are so defective that they do not attract the jurisdiction of the Court or are invalid, null or void.

Question 4 focuses upon the Court's orders of 7 June 2007 and 9 October 2008 made in consequence of the original and amended applications respectively. It raises the question of whether if the charges to which questions 2 and 3 relate were defective, the Court's orders were valid.

Questions 1, 5 and 6 focus upon the limits of the Court's jurisdiction in respect of different aspects of the proceedings.

The prosecutor addressed his primary submissions in the order identified above. 41 It is pertinent to note that in his submissions the prosecutor referred to the 'statement of offence', a term used in the joint judgment in Kirk, as consisting of three elements: the charge; the particulars; and the consequences. In other words, the Application for Order. We agree with this submission: see Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72. The 'charge' was said to be, for example, in relation to the corporate defendant: I Rodney Morrison... an Inspector duly appointed...allege that Hunter Quarries Pty Ltd... being an employer, on 14 June 2005 at the Karuah Quarry...failed to ensure the health, safety and welfare at work of...Darren Smith, contrary to s.8(1).

The particulars are self-explanatory. The consequences were that 'As a result of the said failures Darren Smith's safety was placed at risk and he was fatally injured.' 42 The prosecutor submitted: The joint judgment in the Kirk case (see [22]-[25]) observes the distinction between the Charges and the Statements of Offence, as the Prosecutor is using those terms. Their Honours' analysis (from [22]-[30]) makes plain…, that both identification of the legal nature of the offence and the particular factual matters alleged as the foundation of the charge must be provided, and it considered the interaction of these two requirements. The error that was determined to exist in Kirk (at [28]) was: The statements of the offences as particularised do not identify…an act or omission which constitutes a contravention of ss.15(1) and 16(1).

Nowhere do their Honours suggest that those matters requisite to jurisdiction and procedural fairness are to be comprised within one section only of the Statement of Offence. Question 2

43 The prosecutor submitted: There was no defect apparent on the face of the charges at least as read in the context of the Statement of Offence. As in Rockdale Beef v The Industrial Relations Commission of NSW [2007] NSWCA 128 the charge describes the offence by use of the statutory language, which is sufficient. It describes the offence in terms no less adequate than those contained in the court attendance notice considered by the Court of Appeal in Knaggs v Director of Public Prosecutions [2007] NSWCA 83; (2007) 70 A Crim R 366 at [4] and [83]. Sections 11 and 12 of the Criminal Procedure Act are of general application, and apply to the present proceedings;

Assuming that some defect were identified in the charges, that defect is not of such a character that the Court's jurisdiction is not engaged: Rockdale Beef at [109]; s 170 of the Industrial Relations Act 1996. See also s 16(1)(b) and s 16(2)(a) of the Criminal Procedure Act;

Even were there a defect on the face of the charge, it is too late for the Defendants to challenge the proceedings: s 17 of the Criminal Procedure Act;

Kirk left open the question of whether defective charges might be a nullity. Kirk did not overrule Rockdale Beef. Question 3

44 The prosecutor submitted: The question raises the issue of whether any defect in the charges was of such a fundamental nature and so incapable of rectification that any order based upon it is of no effect. The Court does not have the power to decline to exercise its jurisdiction: s 252 of the Criminal Procedure Act ;

None of the charges is invalid, whether for failure to plead essential elements of an offence or failure to specify essential factual particulars: Rockdale Beef, esp. at [122], [123], [126] and [131]-[133]. Question 4

45 The prosecutor submitted: For the reasons advanced in response to question 3 the Court's orders of 7 June 2007 and 9 October 2008 are valid orders. Each required the attendance of the relevant defendant to appear and answer the Statements of Offence;

Whilst parties cannot confer on a court jurisdiction that it does not possess, different considerations apply when an order that is attacked in some way was made by consent. The orders of 9 October 2008 were made by consent. Those orders replaced those of 7 June 2007;

The orders made by the Court did not involve the exercise of judicial power. Save for exceptional circumstances not here relevant, the Court does not have jurisdiction to review such orders nor to entertain an appeal against them. Nor is there any point in doing so. The orders, so far as they required attendance, have been executed. Questions 1, 5 and 6

46 The prosecutor submitted: Question 1 raises no question separate from those raised by questions 2-6;

Question 5 identifies four potential actions by the Court, asking whether the Court has jurisdiction to undertake the actions identified the actions in question are quash the orders, strike out the proceedings, stay the proceedings permanently and make a declaration. Each of these matters is addressed elsewhere by the prosecutor and needs no further submission;

As to question 6, submissions as to the absence of any defect and the Court's jurisdiction to permit amendment if defect is identified have been addressed elsewhere. SUPPLEMENTARY SUBMISSIONS

47 On 4 June 2010, the Full Bench gave its decision in Hamilton v Holland. In that case, as a consequence of Kirk, the Court was asked to answer questions of law which included, inter alia, whether the charges against the defendant contained the essential legal elements of an offence under ss 8(1) and 8(2) and whether the charges contained the essential factual ingredients of the offences charged under those provisions. Hence, similar issues arose. 48 After the decision in the present matters was reserved, Mr Grugeon sought leave to make supplementary submissions arising from the judgment in Hamilton v Holland. Leave was granted and a timetable for the filing and serving of written submissions was fixed. That timetable was complied with. Mr Chevalley adopted the submissions of Mr Grugeon. 49 We deal later with the judgment in Hamilton v Holland and its implications for the present proceedings and in that context we will address the parties' supplementary submissions. ISSUES RAISED BY THE QUESTIONS OF LAW

50 Question 1 raises the issue of whether the Court has power to determine questions 2 to 6 inclusive. Questions 2 and 3 concern whether the charges are a nullity for the reason that they do not identify either the essential legal elements of the offences or the essential factual ingredients. The two questions also raise for consideration whether, if the charges are defective, they may be rectified. The answers to question 4 and 5 depend on the answer to questions 2 and 3. Whether question 6 needs to be addressed depends upon whether the charges are defective. 51 Question 7 essentially stands alone, raising as it does the constitutional validity of s 26 of the OHS Act 2000. However, it only becomes necessary to deal with the constitutional question if the defendants are unsuccessful in their bid to have the charges declared invalid, null, void or otherwise bad at law. We propose, therefore, to proceed first to deal with issues raised by questions 1 to 6 on the assumption that s 26 is constitutionally valid. If we conclude we have jurisdiction to deal with the questions and find, in effect, the charges are valid, we will then address the constitutional question.

52 The questions posed in the Reference raise the following fundamental issues for determination: (1) whether the Court has jurisdiction to determine the questions (other than the question of the constitutional validity of s 26, which is dealt with separately later in this judgment); (2) what are the essential legal elements of an offence charged under s 8(1) by operation s 26 of the OHS Act 2000 and whether, having regard to the decision in Kirk , the prosecutor has failed to plead or specify those elements in the Applications for Order in Matter Nos 956 and 957 of 2007; (3) whether the prosecutor has failed to specify the essential factual ingredients of an offence charged under s 8(1) by operation of s 26 of the OHS Act 2000 in the Applications for Order in Matter Nos 956 and 957 of 2007; and

(4) whether, if there was a failure to plead or specify the essential legal elements and/or the essential factual ingredients, the charges are invalid, null or void. 53 Ancillary to these issues is whether, in the event the Applications for Order are invalid, null or void, the Court has jurisdiction to quash the Orders requiring the attendance at court of each of the defendants, or strike out or permanently stay the proceedings or make a declaration that the defendants have no further obligation to attend the court. A final ancillary issue is whether the Court has jurisdiction to hear and determine any application by the prosecutor to amend the charges to amend any defect. Hamilton v Holland

54 Before addressing the issues for determination it is necessary to refer to the recent decision of the Full Bench of this Court in Inspector Hamilton v John Holland Pty Ltd. That case involved similar issues to those now under consideration, except that in Hamilton v Holland there was no issue in relation to s 26; no director or manager was charged. In that case references of questions of law to the Full Bench of the Industrial Court were sought following a notice of motion filed by the defendant in the proceedings seeking, in effect, that the proceedings brought against it under s 8(1) and s 8(2) of the OHS Act 2000 be dismissed for want of jurisdiction. The principal basis upon which the motion was advanced was the decision of the High Court in Kirk.

55 The Full Bench in Hamilton v Holland was asked to answer questions which included, inter alia, whether the charges against the defendant contained the essential legal elements of an offence under ss 8(1) and 8(2) and whether the charges contained the essential factual ingredients of the offences charged under those provisions. In the process of answering those questions the Full Bench: (a) addressed the Court's relevant jurisdiction in relation to occupational health and safety prosecutions and the procedures involved in dealing with such prosecutions. This appears at [8]-[15] of the judgment and we adopt what was there said; (b) identified the common law principles and statutory provisions applying to the pleading of criminal charges in the Court's occupational health and safety jurisdiction (at [36]-[39]). We adopt what the Full Bench stated; (c) analysed the decision of the Court of Appeal in Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 (at [40]-[47]). We adopt that analysis; (d) considered whether the Applications for Order contained the essential legal elements of the offences charged and held that they did (at [80]). The Full Bench determined that the essential elements of an offence charged under s 8(1) were (at [103]): (i) The defendant was an employer at the time of the alleged breach.

(ii) There was a risk to the health, safety or welfare of the defendant's employees.

(iii) There was a causal nexus between the defendant's alleged breach and the risk to employees' health, safety or welfare.

(iv) The risk was to employees at work. We adopt, for present purposes, the Full Bench's determination regarding the essential elements of an offence under s 8(1); (e) considered whether the requirements of r 217B of the Industrial Relations Commission Rules 1996 had been met and found that they had (at [37]-[48]); (f) considered whether Kirk had determined that the acts or omissions of the defendant that were alleged to have given rise to the risk to health and safety were essential legal elements of the offence. The Full Bench found that Kirk had not so determined (at [67]). We concur with that finding; (g) considered whether the Applications for Order disclosed the essential factual ingredients of the offences charged under ss 8(1) and 8(2) of the OHS Act 2000 (time, place and manner of the offence) and found that they did (at [50]-[52]); (h) found that the manner in which the offences were alleged to have occurred were addressed in that part of the Applications that described the particulars (at [51]); (i) considered whether the Applications for Order were defective and in doing so expressed the opinion that it mattered not at all whether the acts or omissions creating the risk were to be regarded as essential legal elements or essential factual ingredients. Both were required to be pleaded (at [70]). Further, that it appeared to the Full Bench that the fact that acts or omissions were not pleaded in a particular place or in a particular form in the Applications for Order did not amount to a fundamental defect such that the charges should be regarded as a nullity. Even if it could be contended that the acts or omissions were essential legal elements and were required to be identified in the Applications in juxtaposition with other legal elements, at best the Applications contained a defect in form, which was unobjectionable (at [72]). We agree with these opinions;

(j) expressed the opinion that s 16(2) of the Criminal Procedure Act (and/or s 170 of the Industrial Relations Act ) may apply to save a charge even if there was a failure to state all the essential ingredients of the offence, provided that there is no uncertainty or ambiguity in the charge, or where certain ingredients can be implied from what is stated in the charge. However, there may be situations where the charge is 'so gross', for example where it is not apparent what offence is being alleged, where s 16(2) cannot be relied upon (at [79]). We agree with this opinion. 56 What follows from our adoption of, or concurrence with, the findings in Hamilton v Holland, as they are relevant to the present proceedings, is that: (a) we do not accept the defendants' contention that an essential legal element of the offence under s 8(1) is that: 'That there were practicable steps or measures available to the putative defendant which would have obviated or eliminated the risk and that the putative defendant failed to take these steps or implement these measures at the relevant time of the risk'; (b) Kirk did not determine that the acts or omissions of the corporate defendant that were alleged to have given rise to the risk to health and safety were essential legal elements of the offence. Nevertheless, such acts or omissions are required to be pleaded in relation to the corporate defendant, Hunter Quarries; (c) if the acts or omissions are not pleaded in a particular place or in a particular form in the Application for Order relating to the corporate defendant, Hunter Quarries, it does not amount to a fundamental defect such that the charges against that defendant should be regarded as a nullity. Even if it could be contended that the acts or omissions were essential legal elements and were required to be identified in the Application in juxtaposition with other legal elements, at best the Application contained a defect in form, which is unobjectionable; (d) section 16(2) of the Criminal Procedure Act (and/or s 170 of the Industrial Relations Act ) may apply to save a charge even if there was a failure to state all the essential ingredients of the offence, provided that there is no uncertainty or ambiguity in the charge, or where certain ingredients can be implied from what is stated in the charge. However, if the charge is 'so gross', for example where it is not apparent what offence is being alleged, reliance may not be able to be placed on s 16(2) and/or s 170. 57 We referred earlier to the fact that following the decision in Hamilton v Holland the Full Bench received supplementary submissions on the implications of that decision for the present proceedings. In his supplementary submissions, Mr Grugeon: (a) contested the correctness of the conclusion in Hamilton v Holland at [40] that the decision in Rockdale Beef was not referred to in Kirk because it was 'considered unnecessary to consider the effect of s 6 of the Summary Jurisdiction Act' and that the decision 'continues to bind this Court, not having been considered or overruled in Kirk'. Mr Grugeon continued to rely upon his earlier submissions to the effect that Rockdale Beef must be applied in light of the High Court's decision in Kirk ; (b) submitted that despite (a) it was not necessary for Mr Grugeon in the context of these proceedings, to challenge the correctness of the judgment in Hamilton v Holland , as the reasoning of the Full Court supported Mr Grugeon's contentions; (c) maintained that it was necessary for the prosecution to plead his alleged 'acts and omissions' as either necessary legal or factual ingredients of the offence charged. This was necessitated by s 12 of the OHS Act 2000, which provides: 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: … (d) further maintained that the ratio of Kirk required that the charges laid against him must plead the specific acts and omissions giving rise to his criminality, otherwise he cannot be made liable for a contravention pursuant to s 12 of the OHS Act 2000. The Full Court in Hamilton v Holland did not in any manner seek to qualify or limit the application of s 12 of the OHS Act 2000; (e) submitted that unlike in Hamilton v Holland , he did not suggest that his acts or omissions should be pleaded above or below any imaginary line within the Statement of Charge. Rather, he simply asserted that they must be pleaded; (f) submitted that unlike in Hamilton v Holland , in the present case the prosecution had not pleaded any particular act or omission on the part of Mr Grugeon. This approach to the prosecution of Mr Grugeon was at odds with the Full Court's judgment in Hamilton v Holland in that (unlike the charges in that case) the particulars of the 'Statement of Charge did not expressly or impliedly identify the alleged failures of Mr Grugeon. Rather, the prosecution case against Mr Grugeon purported to rely only on the deeming effect of s 26 of the Act and did not rely on any specific act or omission on his part; (g) submitted the effect of the prosecution case was that Mr Grugeon's criminality rested on the conduct of another party and not on any particular act or omission on his part. That being the case, there was no basis upon which any penalty may be imposed on Mr Grugeon pursuant to s 12 of the OHS Act 2000 as there was no act or omission on the part of Mr Grugeon which provided jurisdiction to the Court to impose such a penalty; (h) submitted the Full Court's judgment in Hamilton v Holland supported the proposition that it was necessary to either plead or particularise the acts or omissions of a defendant. That had not been done in the present case in respect of the charges laid against Mr Grugeon. Accordingly, the charges against him were bad at law and should be dismissed and/or the orders requiring him to attend before the Court were made in excess of jurisdiction. 58 For the prosecutor it was submitted: (a) Kirk did not need to and did not consider the question of the need to provide particulars of some personal responsibility of a director. The decision concerned the requirement to give particulars as to the acts and omissions of a corporate defendant. The ratio of Kirk does not require the Court to accept the contentions of Mr Grugeon; (b) pursuant to s 26, Mr Grugeon is 'taken to have contravened' the same provisions of the Act as the corporate defendant. Those contraventions are the relevant acts and omissions that the prosecutor needs to prove. Assuming the constitutional validity of s 26, the section focuses on the contraventions of the corporation, and makes no reference to any contravention personal to the director/manager. The defences for which s 26 provides focus only upon the conduct of the corporation in relation to its contravention , and the contravention by the corporation . Section 16(1)(b) of the Criminal Procedure Act provides that the prosecutor is not required to plead any matter that the prosecutor is not required to prove; (c) the questions of whether: (a) Mr Grugeon was not in a position to influence the corporation, or (b) used all due diligence to prevent the contravention by the corporation, are matters for the defendant to prove; (d) that the prosecutor is not required to prove and so particularise personal acts and omissions of a director, is consistent with the policy evident in the Act. The matters of defence are peculiarly within the knowledge of the defendant. 59 It seems to us that the main point of Mr Grugeon's supplementary submissions concerned s 12 of the OHS Act 2000, namely, that by virtue of s 12 it was necessary for the prosecution to plead his alleged 'acts and omissions' as either essential legal or factual ingredients of the offence charged.

60 Against the background of the decision in Hamilton v Holland and acknowledging the need to address the point raised in the supplementary submissions, we turn to consider the issues in this case. Whether jurisdiction to determine the questions of law

61 It appears plain enough to us that the jurisdiction to hear and determine any question of law referred to the Full Bench is conferred, by implication, by the combined operation of s 196 of the Industrial Relations Act and s 5AE of the Criminal Appeal Act. 62 Nevertheless, the prosecutor submitted, first, that s 17 of the Criminal Procedure Act requires the taking of objection for a formal defect in the charge apparent on its face to be taken by demurrer or motion to quash the indictment before 'the point in time that the judge first assumes the role of a tribunal of fact'. Section 17 is in the following terms: 17 When formal objections to be taken (1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn. (2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect. 63 Section 3 of the Criminal Procedure Act provides that 'a reference to the empanelment of a jury is, in the case of a trial by a Judge alone, taken to be a reference to the point in time when the Judge first assumes the role of the tribunal of fact.' Section 17 is in Pt 2 of the Act and in that respect s 15(2) provides: indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced. 64 Section 17 refers to a 'formal defect'. The word 'formal' is a word of limitation but no submissions were made in that respect. We would not have thought the objection by the defendants was to 'formal defects'. Rather, the objection is that the Applications for Order are invalid, null or void. Secondly, as the defendants submitted, their substantive trial is yet to commence. We do not consider s 17 applies. 65 The second of the prosecutor's propositions concerning jurisdiction related to s 170 of the Industrial Relations Act. That section applies to these proceedings by virtue of s 168(3) of that Act. Section 170 is in the following terms: 170 Amendments and irregularities (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. 66 The prosecutor submitted that s 170(4) represented a limitation on the Court's power to set aside the proceedings. That is, the proceedings could only be set aside for the purposes of s 170(3), namely, where there has been a failure to comply with the Industrial Relations Act, the regulations or a rule of the Commission, such failure to be treated as an irregularity and not a nullity. 67 Thus, according to the prosecutor's submission, if r 217B of the Commission's 1996 Rules has not been complied with in relation to what must be contained in an Application for Order, it is not open to the Court to set aside the Application on the ground it is a nullity, and it may only be set aside as an irregularity. 68 Given our conclusions in these matters, which are to the effect the Applications are not nullities, there is no need to consider this issue further. 69 Thirdly, it was submitted for the prosecutor that s 252 of the Criminal Procedure Act only permitted this Court to dismiss proceedings following a contested hearing. Section 252 provides: 252 Procedure where both parties appear If both the prosecutor and the accused person are present on a day and at the time and place set for the hearing and determination of proceedings for a summary offence (including a day, time and place to which a hearing has been adjourned) the court must proceed to hear and determine the matter. 70 The Industrial Court is a superior court of record, albeit a court of limited jurisdiction. Accordingly it does not have inherent jurisdiction in the same way as Supreme Courts: see Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612. However, in the exercise of its jurisdiction, in the same way the federal court's powers extend to 'whatever is incidental and necessary to the exercise of that jurisdiction' (Wardley Australia Ltd v WA [1992] HCA 55; (1992) 175 CLR 514 at 561), the Industrial Court's powers also extend to whatever is incidental and necessary to the exercise of that jurisdiction. It is also to be observed that a primary duty of any court is to satisfy itself that it has jurisdiction to embark upon the case brought before it - absent such jurisdiction, the Court can proceed no further. 71 It is clear that the Industrial Court has an express power in its summary jurisdiction, to determine a contravention of the OHS Act 2000. It necessarily follows that the Court has the power to dismiss charges alleging a contravention, including dismissal for want of jurisdiction. We agree with the submission of Mr Grugeon that it would be an absurdity and contrary to law for it to be contended that the Industrial Court has the power to convict after a hearing but not able to decide at an earlier stage of the proceedings if the charge was bad for lack of an essential element.

72 Finally, on this question of jurisdiction we would make the observation that even if the prosecutor's objections were valid they are somewhat academic given that we are unable to see any impediment to the Court making a declaration under s 154 of the Industrial Relations Act as to the validity of the charges. Essential elements of the offence under s 8(1) by operation of s 26 regarding the corporation

73 In respect of pleadings regarding a corporation, the view was taken in Hamilton v Holland that the acts or omissions of the defendant were not to be regarded as essential legal elements (at [67]), but in any event, it did not matter whether the acts or omissions causing the risk were essential legal elements or essential factual ingredients because both were required to be pleaded. We take the same view in respect of the corporation, Hunter Quarries, in these proceedings. In other words, an essential element of an offence charged under s 8(1) by operation of s 26 is that the prosecutor must prove the corporation contravened the Act and in doing so must plead and prove the acts or omissions of the corporation: Kirk. We shall consider later in this decision whether the essential elements (legal and factual) relating to the corporation were, in fact, pleaded.

Essential elements of the offence under s 8(1) by operation of s 26 regarding directors, managers

74 We gained the impression from the written submissions that Mr Grugeon and Mr Chevalley were contending that the essential legal elements of an offence charged under s 8(1), by virtue of the operation of s 26, were that: (a) a corporation exists; (b) the corporation has contravened the Act; (c) the person the subject of the charge is a director or person concerned in the management of the corporation; (d) that the person was in a position to control or influence the corporation with respect to the act or omission; (e) that the person did not takes steps to ensure the company did not do the act or make the omission in question and was thereby not duly diligent. 75 Because the offence is a contravention of s 8(1) and s 26 merely takes the two directors to have contravened the same provision (subject to making out a defence), it is necessary for any charge against the directors to plead the essential elements of an offence under s 8(1) (and for the prosecutor to prove those elements) and, as well, to plead (and prove) the person the subject of the charge is a director or person concerned in the management of the corporation.

76 Mr Grugeon appeared to contend in his written submissions that in respect of elements (d) and (e) above there was an onus on the prosecution to plead and prove how it was that he, as a director (and also Mr Chevalley as the other director), was in a position to control or influence the act or omission of the corporation that was alleged to cause the risk to health and safety and to identify the steps the directors failed to take to ensure the corporation did not, by its acts or omissions, contravene the Act and thereby the directors did not use all due diligence. 77 However, Mr Moses, senior counsel for Mr Grugeon (with whom counsel for Mr Chevalley concurred), explained in his oral submissions that the acts or omissions of the director must be pleaded in the Applications for Order but are not required to be proved by the prosecutor. This was so, it was submitted, because it was necessary in order that the defendant could understand the case put against him and to be able to rely on one or the other of the defences and to avoid being ambushed in cross-examination. It was submitted: It is not uncommon in the case of statutory offences for the prosecutor to do no more than assert an act or omission which the defendant, bearing the legal and evidentiary onus, must prove. This has long been the position in relation to freedom of association cases in the Workplace Relations Act and its predecessor.

78 Mr Moses SC referred to Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34 in support of this proposition. That case involved, inter alia, an interpretation of s 298V of the Workplace Relations Act 1996 (Cth), which was the predecessor provision to s 809 of that Act. Section 298V provided, so far as is relevant: If:

(a) in an application under this Division relating to a person's ... conduct, it is alleged that the conduct was, or is, being carried out for a particular reason ...; and (b) for the person ... to carry out the conduct for that reason ... would constitute a contravention of this Part;

it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason ..., unless the person ... proves otherwise.

79 It may be seen that s 298V was in quite different terms to s 26 of the OHS Act 2000. At [221] in the Geraldton Port Authority case Nicholson J stated: [221] If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: s 298V; Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J. The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer": Heidt v Chrysler Australia Ltd at 267. 80 Under s 298V, it was for the applicant to prove the conduct and then allege it was prohibited conduct, and for the respondent to prove that it was not motivated for an impermissible reason. Under s 26 it is for the prosecutor to prove contravention by the corporation and for the director or manager to prove on the balance of probabilities that he or she was not complicit in the corporation's contravention. The reason an applicant need only allege an act or omission under s 298V (and s 809) is because that is what the statute provides. Section 26 makes no such provision. Whether acts or omissions of directors are essential elements of the offence

81 Whilst senior counsel for Mr Grugeon helpfully clarified the position, we consider it appropriate to address whether elements (d) and (e) referred to in [74] above are required to be pleaded by the prosecutor as essential legal elements in relation to acts or omissions and proven beyond reasonable doubt. We shall then address the question of whether these elements are merely required to be asserted by the prosecutor, but not proven to the relevant standard.

82 It is to be accepted that if the 'acts or omissions' (where reference is made to the directors' 'acts or omissions' we are referring to (d) and (e) of the elements in [74] above) of the two directors are to be regarded as essential legal or factual elements of an offence charged under s 8(1) by operation of s 26, then the prosecutor must plead and prove those elements. However, in our opinion the 'acts or omissions' are not such elements. 83 The offence in this case is an offence by the corporation, Hunter Quarries, under s 8(1) in which each of the defendants are alleged to be complicit. As the defendants accepted, s 26 does not prescribe a separate offence; it is merely the mechanism by which Mr Grugeon and Mr Chevalley, as directors, are taken to have committed the same offence as their corporation unless they make out one of the defences. 84 In our opinion, it would be inconsistent with the proper construction of s 26 and the rationale for placing the onus on the defendants to prove the defences, for the prosecutor to have the onus of proving, in effect, that the defence was not available. The onus is placed on the defendants because the defendants are best placed to know the relevant facts and must be taken to have accepted the regulation that the OHS Act 2000 places on them and their corporation. As it was said in R v Davies [2002] EWCA Crim 2949 at [25] and [30] in relation to s 40 of the Health and Safety at Work Act 1974 (UK) (we make further reference to this case and its relevance to the proceedings later in this judgment): [T]he prosecution might face considerable difficulties in assuming this burden of proof where the only relevant expertise was with the defendant or even its state of the art supplier or licensor abroad. In such cases therefore enforcement might become impossible if the defendant only had an evidential burden.

And further, that: The reversal of the burden of proof takes into account the fact that duty holders are persons who have chosen to engage in work or commercial activity (probably for gain) and are in charge of it. They are not therefore unengaged or disinterested members of the public and in choosing to operate in a regulated sphere of activity they must be taken to have accepted the regulatory controls that go with it. 85 If the burden fell on the prosecution to prove that the directors were in a position to influence the acts or omissions of the corporation, or prove that the directors failed to take the necessary steps to ensure the corporation did not, by its acts or omissions, contravene the Act and thereby the directors did not use all due diligence, it would render nugatory the onus that s 26 places on the defendant: the elements (d) and (e) in [74] above were precisely those matters that s 26 makes plain are to be proved by the defendants. If a burden of proof fell on the prosecutor it would mean the prosecutor would be required to prove the elements beyond reasonable doubt and the defendants would have to also prove them on the balance of probability. Such a construction would lead to an absurd result and we do not think that is what the joint judgment in Kirk intended. 86 We turn to the question of whether it is necessary to assert the relevant 'acts or omissions' against the directors so that they may understand how to frame any defence they choose to rely upon. That this was the defendants' position is apparent from the following extract from the transcript: MOSES: Ultimately, the essence of corporate personality is separation, including separately the personality of the corporation as opposed to the directors, the capacity to sue and be sued. The decision to plead guilty will be made by a company or it will be convicted on the basis of its acts, but a Director, we say, ought not be convicted without the prosecutor alleging what he or should ought to have done in the circumstances.

PRESIDENT: In relation to that last point you made, would it be sufficient for the prosecutor to simply allege that the defendant was a Director or Managing Director of a corporation that contravened s8 of the Act and thereby was in a position to influence the conduct of the corporation in relation to the contravention? It's not sufficient.

MOSES: The fact somebody is a Director does not mean that they are automatically in a position to influence the conduct of the corporation.

PRESIDENT: It has to be something more, you say, but the allegation-

MOSES: It must be pleaded not proven by the prosecutor, we accept that, but it must be alleged.

PRESIDENT: So the prosecutor, you say, has to allege how it was that the Director was in a position to influence the conduct of the corporation?

MOSES: That's common in other cases such as s809 of the Workplace Relations Act where all that needs to happen in that matter is for the allegation to be made and for the defendant to prove that that was not the position. In order to engage the defence you need to be told of what it is you are being accused of, otherwise, as was observed in Kirk, for the first time when a defendant is being cross-examined or in their case, the prosecutor will pop up and say: But you could have done X, Y, Z in order to ameliorate the risk.... 87 It must surely follow from the proposition that no proof is required of the directors' 'acts or omissions' that their 'acts or omissions' are not essential legal or factual elements of the offence. There is no indication in s 26 that a legal element to be proved by the prosecutor in respect of a director or manager is an act or omission of that director or manager; the onus is on the director or manager. Further, unlike the charge against the corporation, the prosecutor is not required to prove an essential factual ingredient of the 'time, place and manner' (Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 486) in which the directors in this case failed to prevent the acts or omissions of the corporation; the onus is reversed and it is for the directors to prove that they were not in a position to influence the acts or omissions of the corporation or, being in a position, exercised all due diligence to prevent the corporation, by its acts or omissions, causing a risk to safety. 88 If it be accepted that the prosecutor's obligation under s 26 is to identify (but not prove) the defendants' 'acts or omissions', it must also follow that if the Applications for Order fail to do so, the Applications are not 'invalid, null or void or otherwise bad at law', as contended by the defendants; the 'acts or omissions' are neither essential legal elements nor essential factual ingredients to be pleaded and proved by the prosecutor. 89 In the absence of any identification of the 'acts or omissions', the Applications could, at worst, only be regarded as defective because particulars that would assist the defendants in preparing their defence had not been stated in the Applications, in which case the Applications could be amended (s 170 of the Industrial Relations Act) or s 16(2) of the Criminal Procedure Act applies: (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or

(b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant. 90 The better answer, however, is that in the context of the defendants being the persons who carry the onus of proving the defences under s 26(1), the 'acts or omissions' of the two defendants are particulars the absence of which do not invalidate the Applications for Order, nor do they constitute defects. Indeed, once it is accepted that these matters need not be proved by the prosecution, the effect of s 16(1)(b) of the Criminal Procedure Act is that the statement of charge is not bad, insufficient, void, erroneous or defective because of a want of an averment of any matters unnecessary to prove. 91 In De Romanis v Sibraa (1977) 2 NSWLR 264, Mahoney JA at 291-292 discussed the form of an information in relation to 'the old rule of criminal practice which requires that fair information and reasonable particularity as to the nature of the offence must be given in indictments and convictions'. His Honour referred in that respect to Smith v Moody [1903] KB 56 at 60 and noted that the practice has been applied to informations and summary proceedings and further noted the rule did not appear to have been abrogated by s 145A of the Justices Act 1902, which was to the effect that a statement of a statutory offence may be expressed in terms of the enactment. 92 Mahoney JA said the rule went to the 'sufficiency in law of the information' and was not 'merely a part of the principle under which a defendant, properly charged, is entitled to such particulars of the charge as will enable him to properly prepare his defence: Johnson v Miller'. That principle, his Honour explained, 'may warrant an adjournment to allow such particulars to be given and if they are not given, a dismissal of the information on that ground'. His Honour continued: No verbal formula has been adopted which enables the content of an information to be determined for this purpose. In Johnson v Miller at 486 Dixon J saw the decision in Smith v Moody at 61, 63 as requiring the information to specify "the time, place and manner of the defendant's acts or omissions".... The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N Ormsby & Sons Pty Ltd; Re Mason (1964) 81 WN (Pt 1) (NSW) 286 at 290, 291....

These cases establish that it may not be sufficient for an information to state the offence charged; it may be required to condescend to particulars. But in my opinion, they do not indicate that the information must go beyond the statement of the offence and the proper particularization of it.... 93 In N Ormsby & Sons Pty Ltd; Re Mason (1964) 81 WN (Pt 1) (NSW) 286, Walsh J speaking for the Court at 134, was addressing the adequacy of an information that did not state that the council was authorised by the Local Government Act 1919 or any other provision to make the relevant requirement and direction. In the course of dealing with this matter, his Honour stated that it was not an essential part of the statement of the offence to say that the council was authorised by some particular provision of the Act or to state that it was authorised, where the situation was that, if the facts stated in the information were proved or admitted, the question whether notice was authorised and whether disobedience of it was an offence, were questions of law depending on the construction of the Act. It was accepted as correct that, if it were necessary to so state in order for the defendant to prepare his defence and to know sufficiently the case he had to meet, particulars ought to be given, 'but a failure of the information to give all such particulars as may be required does not invalidate the information'. In Ormsby, although the appellant contended he did not know which of two separate provisions of the Act in question constituted the basis of the case against him, Walsh J held that this did not go to the sufficiency of the information, but rather it was a matter concerning the conduct of the hearing. 94 We note that in Kirk at [26] the joint judgment cites De Romanis v Sibraa after stating: 'These facts [the essential factual ingredients] need not be as extensive as those which a defendant might obtain on an application for particulars.' 95 In our opinion, there is no obligation upon the prosecutor to plead the 'acts or omissions' of the two directors. It is not an essential legal element of an offence charged under s 8(1) by operation of s 26 that the prosecutor must prove either that the person was in a position to control or influence the corporation with respect to the act or omission, or that the person did not take steps to ensure the company did not do the act or omission in question and was thereby not duly diligent. Nor are such 'acts or omissions' essential factual ingredients to be proved by the prosecutor. 96 Moreover, it is not necessary for the prosecutor to identify in an Application for Order how the directors failed to prevent the corporation, by its acts or omissions, from causing a risk to health and safety in order that the directors may properly prepare a defence. It makes little sense to require the prosecutor to have the knowledge to assert such matters when the rationale for placing the onus on the defendants is that they are best placed to know whether they were in a position to influence the conduct of the corporation or being in such a position exercised all due diligence.

97 This is not to say that some aspect of a defendant's 'acts or omissions' may not be the subject of an application for particulars if fairness demands it. But that is a matter for the trial judge in the conduct of the trial and having regard, in particular, to the fact that the onus is reversed. 98 We refer to the supplementary submission of Mr Grugeon that by virtue of s 12 of the OHS Act 2000 it was necessary for the prosecution to plead his alleged 'acts and omissions' as either necessary legal or factual ingredients of the offence charged. First, if the acts or omissions are to be pleaded as essential legal elements or factual ingredients, it must follow that the acts or omissions must be proven to the relevant standard. But as we have explained, that is inconsistent with Mr Grugeon's other submission that there was no need to prove these acts or omissions. 99 Section 12 does create the offence, providing as it does that 'A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence….' However, s 12 does not require the prosecutor to prove under s 26 an act or omission by a director, or person concerned in the management of a corporation, separate from the act or omission of the corporation. The director, etc, is taken to have contravened the same provision as the corporation in the same way the corporation did, unless a defence is made out. So that, for instance, if a corporation contravened s 8(1) by failing to ensure that systems of work were safe and without risks to health, a director is taken also to have contravened s 8(1) in the same way unless the director is able to prove, on the balance of probabilities, that he or she was not in a position to influence how it was the corporation failed to ensure a safe system of work at the relevant time and place or, he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. We elaborate on this aspect under the next heading. Whether Kirk requires acts or omissions of directors to be pleaded by prosecutor

100 The defendants conceded that the High Court did not consider nor did it decide whether the prosecutor was required to plead and particularise the charge so as to enable an individual director to avail himself of the defences under s 26. Nevertheless, it was submitted, by parity of reasoning this must follow from the result in Kirk. 101 This 'parity of reasoning' submission appears to be based on the proposition that because the High Court determined that the prosecutor was required to plead the acts or omissions of the Kirk company and failed to do so, it was also required to plead the acts or omissions of Mr Kirk, who had been separately charged. Where a corporation is prosecuted under s 15 of the Occupational Health and Safety Act 1983 (the predecessor provision to s 8(1)) the corporation may invoke a defence under s 53 (the predecessor provision to s 28): Kirk at [16]. It was made clear in Kirk that in order for a defendant corporation to be in a position to invoke a defence, it had to know what act or omission was alleged to have created the risk; s 53(a) was not to be understood as requiring an employer to negative the general provisions of s 15 and to establish that every possible risk was obviated (at [17]). Hence, it seemed to be contended by the defendants in the present case, if the acts or omissions of a corporate defendant were required to be pleaded in order that the defendant could invoke a defence, it followed, by parity of reasoning, that in the case of a director or manager charged under s 8(1) by operation of s 26, the acts or omissions of the director or manager were also required to be pleaded. 102 The 'parity of reasoning' submission does not withstand scrutiny. Section 28 is not a deeming provision, as is s 26. Section 8(1) imposes an absolute liability on a defendant until a defence is invoked under s 28. Section 26 deems a director or manager to have contravened the same provision as their corporation. The section operates on the basis that the corporation is subject to the 'directing mind and will' of living person(s) who are the 'embodiment of the company' and in a position to influence the corporation regarding its duties under the OHS Act 2000. If the person was not in a position to influence the conduct of the corporation a defence is available under s 26(1)(a). If the person was in a position to influence, a defence may be available under s 26(1)(b) that the person used all due diligence to avoid the contravention of the corporation. 103 In Kirk, the High Court held it was imperative that any charge under s 15 and 16 of the 1983 Act had to plead the acts or omissions of the defendant that created the risk to safety. We note, in passing, that the High Court took a different position to the House of Lords in R v Chargot Ltd T/as Contract Services [2009] 2 All ER 645 (it is not apparent whether in Kirk reference was made by counsel to this case). In R v Chargot it was held that it was sufficient for the prosecution to prove a risk of injury arising from a 'state of affairs' at work, without identifying and proving specific breaches of duty by the employer. Once that was done, a prima facie case of breach was established. The onus then passed to the employer to make good the defence of reasonable practicability. Until the High Court's decision in Kirk this was the position taken by the Industrial Court in health and safety prosecutions, although it should be stated that Applications for Order filed by prosecutors were not routinely as sparsely particularised as occurred in Kirk. For example, in Powercoal the particulars were described by the Chief Justice as 'extensive'. 104 In requiring the acts or omissions to be pleaded, the joint judgment in Kirk referred to the need for the defendant to know what specific acts or omissions were alleged against it in order that a defence could be framed. As we earlier observed, it was held s 53(a) of the 1983 Act was not to be understood as requiring an employer to negative the general provisions of s 15 of that Act and to establish that every possible risk was obviated. In other words, the defendant could not be expected to know, unless it was pleaded against it, what acts or omissions needed to be addressed in raising a defence of reasonable practicability. 105 That is quite different to the scheme of s 26, which is more appropriately described as a deeming provision whereas s 28 is clearly a reverse onus provision. As we have sought to make clear, in order to invoke a defence under s 28 in respect of which the defendant carries the onus, the defendant is entitled to know the nature of the act or omission that created the risk. Section 28 is not to be understood as requiring an employer to negative the general provisions of s 8(1) and to establish that every possible risk was obviated: Kirk at [17]. Under s 26, because the director or manager is taken to have contravened the same provision as the corporation, provided the acts or omissions of the corporation have been pleaded, the director or manager is thereby informed of the measures that should have been taken by the corporation, and, it follows, by the director or manager, to avoid the risk. The director or manager is, therefore, placed in the position of knowing the acts or omissions that have been charged against him or her and in that knowledge may invoke a defence under s 26(1)(a) or (b). Whether a director or manager was in a position to influence the conduct of the corporation or, if in such a position, exercised all due diligence to prevent the contravention by the corporation, are matters that are presumed to be peculiarly within the knowledge of the director or manager and, therefore, the onus of proving those matters falls on the director or manager. 106 In our opinion, there is nothing in the judgment of the High Court in Kirk, either expressly or impliedly, that would require us to adopt the view that in charging a director or manager under s 26 the prosecutor is required to separately plead and particularise the charge so as to identify the 'acts or omissions' of such persons, as distinct from the corporation. 107 Kirk was concerned with the absence throughout the trial of identification of the measures that the corporation should have taken to discharge its obligations. This is apparent from what was said in the joint judgment at [14] and at [37]-[38]: [14] 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.

[37] It is not necessary to further consider the correctness of these findings. For present purposes it is sufficient to observe that his Honour's reasons disclose a wrong understanding of what constituted an offence against ss 15 and 16 and how the defence under s 53(a) was to be applied in proceedings for such an offence. His Honour did not appreciate that no act or omission on the part of the Kirk company had been charged. To the contrary, his Honour accepted the proposition that the prosecutor is not required to demonstrate that particular measures should have been taken to prevent the risk identified.

[38] A consequence of the matter proceeding to conviction on the charges as stated, absent the identification of measures the Kirk company should have taken, was that it was denied the opportunity to properly put a defence under s 53(a). Instead, the Kirk company was required to show why it was not reasonably practicable to eliminate possible risks associated with the use, or possible use, of the ATV. The guarantee against risk, seen as provided by s 15, was treated as continuing, despite a defence under s 53(a) being raised. The operation of that defence was treated as largely confined to an issue of reasonable foreseeability.

108 At [15]-[19] the joint judgment discussed the defences available to an employer under s 53, the predecessor provision in the OHS Act 1983 to s 28 in the OHS Act 2000. There was no suggestion there that any obligation fell on the prosecutor to plead and prove matters going to reasonable practicability or control. Indeed, it was made clear the onus of proving the defences fell entirely on the employer:

[15] The necessity for a statement of offence to identify the act or omission of the employer said to constitute a contravention of s 15 or s 16 is even more apparent when regard is had to the defences which were available to employers in proceedings for offences against the provisions. Section 53 provided: "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."

[16] The scheme of this legislation stood apart from other legislation of this type in Australia. In other States the employer's obligation, to take measures for the health and safety of employees and others, was limited to the taking of such measures as were practicable. This Court has held that such a provision places the onus upon the prosecution to show that the means which should have been employed to remove or mitigate a risk were practicable . A feature of the legislation here in question is that where an employer is charged with an act or omission which is a contravention of s 15 or s 16, it will be necessary for the employer to establish one of the defences available under s 53 in order to avoid conviction. Where reliance is placed by the employer on s 53(a), it would be necessary for the employer to satisfy the Industrial Court, to the civil standard of proof, that it was not reasonably practicable to take the measure in question. Such a defence can only address particular measures identified as necessary to have been taken in the statement of offence.

[17] Section 53(a), in the context of proceedings for offences against ss 15 and 16, referred to the situation where it is not reasonably practicable for an employer to comply "with the provision of this Act". It is not to be understood as requiring an employer to negative the general provisions of ss 15 and 16 and to establish that every possible risk was obviated. It requires that regard be had to the breach of the provision which it is alleged constituted the offences. A breach or contravention of s 15 or s 16 is the measure not taken, the act or omission of the employer.

[18] The duties referred to in ss 15(1) and 16(1) cannot remain absolute when a defence under s 53 is invoked. The defence allows that not all measures which may have guaranteed against the risk in question eventuating have to be taken. The measures which must be taken are those which are reasonably practicable. The term is not defined in the OH&S Act, but it may often involve a common sense assessment. An understanding of the scheme of Pts 3 and 6 precludes acceptance of the appellants' contention that it is necessary to imply the common law standard of care in ss 15(1) and 16(1). The OH&S Act delimits the obligations of employers by the terms of the defences provided in s 53.

[19] What was necessary to be done in connection with the health, safety and welfare of employees and others at the workplace depended upon the presence of identifiable risks and measures which could be taken to address them. The question which may follow, as to what was or was not reasonably practicable for the employer to have undertaken, is directed to the measures so alleged. It is the employer's act or omission with respect to those measures which had to be identified in the statement of any offence charged under ss 15 and 16.

109 At [24]-[30] of the joint judgment the position of Mr Kirk as a director was addressed. Their Honours recorded, without comment, the provisions of s 50(1) of the OHS Act 1983 and thereafter did not address the operation of that section. 110 At [27] it was stated in the joint judgment that: The acts or omissions the subject of the charges here in question had to be identified if Mr Kirk and the Kirk company were to be able to rely upon a defence under s 53. 111 The acts or omissions there referred to were the acts or omissions of the Kirk company; the pleading of those acts or omissions were relevant to both the corporation and the charged director since both charges required as their starting point a contravention by the corporate employer. The reference to Mr Kirk being able to rely on a defence under s 53 (now s 28 of the OHS Act 2000) is not to be taken to mean that a director or manager charged under s 8(1) by virtue of s 26 is able to rely on the defences in s 26(1)(a) or (b) and the defences under s 28, except in the context of the director or manager being able to rely on s 28 as a defence available to the corporation in order to show that the corporation had not contravened the Act, which is an element to be proved upon a charge under s 8(1) by virtue of s 26. 112 In Morrison v Powercoal Pty Ltd & Anor [2004] NSWIRComm 297; (2004) 137 IR 253 the Full Bench held that the s 53 defences were not available to defendants prosecuted under s 50 of the 1983 Act: see [159-[166]. As earlier noted, the direct counterpart of s 53 is s 28 under the OHS Act 2000 and the direct counterpart of s 50 is s 26. Whilst the decision in Powercoal was affirmed by the Court of Appeal in Powercoal Pty Ltd v Industrial Relations Commission of New South Wales [2005] NSWCA 345; (2005) 64 NSWLR 406), the Court of Appeal did not find it necessary to consider the correctness of the decision regarding the availability of s 53 defences to the personal defendant in that case, although given the supervisory jurisdiction of the Court of Appeal, it was open to do so if it were apparent to that Court that there was error. 113 Powercoal is, therefore, authority for the proposition that the individual may not rely on s 28 as an additional defence to those available under s 26(1). Powercoal, of course, involved the joint prosecution of a corporate defendant and a personal defendant. In that context, the Full Bench held at [162]: [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.

However, in any separate prosecution of the individual, the prosecutor must prove contravention by the corporation and there does not appear to be any obstacle to the individual relying on s 28 defences in challenging the prosecution's case that there has been a contravention by the corporation.

114 We note what was said by the Full Bench in Powercoal at [166] about the duplication between what is now s 26 and s 28: Finally, in broad terms, the overlap between the operation of [s 26(1)(a) and (b)] in relation to a director or "manager" and the operation of [s 26] in relation to that director or "manager's" corporation suggests that the respondent's contention would result in unnecessary duplication. It seems to us that if a person was not in a position to influence the conduct of the corporation in relation to its contravention of a provision of the Act (thereby avoiding liability by virtue of [s 26(1)(a)], or being in such a position, used all due diligence to prevent the contravention by the corporation (thereby activating [s 26(1)(b)]) then it would not have been reasonably practicable for the person to have complied with the relevant provision or, alternatively, the commission of the offence was due to causes over which the person would have had no control and against the happening of which it would have been impracticable for the person to make provision. For example, a director or "manager" with no real control over the corporation's conduct would not be in a position to institute a simple, practicable, change to a safety system well within the means of the corporation. 115 In other words, even though circumstances may arise where the corporation does not rely on the s 28 defences and is found guilty of a contravention of the Act, the practical reality is that if s 28 defences were available it is likely that a director or manager may achieve the benefit of those defences, in any event, by relying on the s 26 defences. Whether the charges contain the essential elements of the offence in relation to the corporation

116 In Hamilton v Holland it was stated at [38]: Thus, if an Application describes an offence under s 8(1) of the OHS Act 2000 in the words of that provision, it would seem to us that the Application has met the requirement of identifying the legal nature of the offence, that is the essential legal elements, subject to the proviso that, in adopting the words of the statute, it admits of no uncertainty or ambiguity: Rockdale Beef at [131]. What must also be identified in the Application are the essential factual ingredients that shall include the time, place and manner of the defendant's acts or omissions.

117 It was concluded in Hamilton v Holland that the Applications for Order adequately identified the specific statutory provision that it was alleged the defendant contravened and, as well, the nature of the offence that was alleged in the words of the relevant statutory provision, namely, s 8(1). 118 As we indicated earlier, in any Application for Order in connection with an offence charged under s 8(1) by virtue of the operation of s 26, it is necessary for the prosecutor to plead and prove the essential elements of s 8(1) as well as that additional element required by s 26, namely, that the person who is the subject of the charge is a director or person concerned in the management of the corporation. 119 In the prosecutor's original and Amended Applications in respect of Messrs Grugeon and Chevalley it is relevantly pleaded in respect of the essential elements of the offence: 1. The defendant was an employer at the time of the alleged breach . The Applications for Order plead the corporation as 'being an employer' at the time of the alleged offence, 14 June 2005.

2. There was a risk to the health, safety or welfare of the defendant's employees . The Applications for Order plead that the corporation failed to ensure the health, safety and welfare at work of Mr Darren Smith. It was further pleaded that '[a]s a result of the said failures Darren Smith's safety was placed at risk'. The failures were particularised in particulars A to D.

3. There was a causal nexus between the defendant's alleged breach and the risk to employees' health, safety or welfare . The Applications for Order plead that the corporation 'failed to ensure the health, safety and welfare at work of... Darren Smith, contrary to s.8(1)'. The ways in which the corporation was alleged to have failed to ensure the health, safety and welfare of employees are set out in the particulars.

4. The risk was to employees at work . The place of the risk is pleaded in the Applications for Order as 'Karuah Quarry, a place of work'. 5. The defendant was a director of the corporation or person concerned in the management of the corporation : The Applications for Order named respectively, Hilton Ross Grugeon as both a director of the corporation and that he was concerned in the management of the corporation, inter alia as chairman of the Board of Directors of the corporation, and Grahame Antony Chevalley as a director of the corporation and that he was concerned in the management of the corporation as managing director of the corporation. 6. The time, place and manner of the offence: The offence was alleged to have occurred on 14 June 2005 at Hunter Quarries' 'Karuah Quarry'. That leaves the question of the manner of the offence, that is, the acts or omissions of the corporate defendant. We propose to consider this issue separately.

Whether the charges plead the acts or omissions of the corporation

120 As the decision in Kirk makes clear, it is necessary for the prosecutor to plead the acts or omissions of the corporation. The position of the two directors was that the Applications did not plead these acts or omissions. The prosecutor contended that the acts or omissions were pleaded in the particulars of the charge. Mr Burbidge QC submitted that the phrase 'statement of the offence' as it was employed in the joint judgment in Kirk was used to describe the Application for Order composed of the charge, its particulars and the averment of the consequent injury to Mr Smith. We agree: see Hamilton v Holland at [66]. 121 We should add that it was not an issue in these proceedings as it was in Hamilton v Holland that the acts or omissions were essential legal elements and were required to be identified in the Applications in juxtaposition with other legal elements: see [72]. It was held in Hamilton v Holland that the defendant's acts or omissions were adequately pleaded in the particulars and that even if the acts or omissions were required to be pleaded in association with the essential elements of the offence, the Applications merely contained a defect in form, which was unobjectionable (s 16(2) of the Criminal Procedure Act) or would be regarded as an irregularity (s 170 of the Industrial Relations Act): see [72]. 122 Referring to the particulars in the Applications that are the subject of these proceedings, it will be seen there are four principal particulars which are supplemented by sub-particulars. Particular A alleges that the corporate defendant failed to 'ensure that the haul road was constructed and maintained in a manner that was safe.' The sub-particulars then proceed to describe how the haul road was unsafe: i. Adequate continuous berms were not placed along the side of the road. Parts of the road had no berms and other parts had berms that were inadequate height, being less than half of a haul truck wheel in height; ii. The grade of the road exceeded a safe grade for driving fully-laden dump trucks downhill; iii It had a 90 degree bend at a point where there was a steep decline with inadequate berms placed along the turn; iv. The haul road was single lane in most areas; and v. There was no signage posted along the road relating to the grade of the road, suggested gear to be selected, passing width available or speed limit. 123 Particular B alleges that the corporate defendant failed to ensure 'a Terex TA30 off-road dump truck known as the 'Terex Truck 2 8'' was safe and without risks to health. The sub-particulars then asserted that the defendant had failed to ensure: i. The braking system was not defective; ii. The steering system was not defective; iii. The operator's instrumentation lights and warning systems were not defective; iv. The truck at all times had sufficient fuel to be operated without risk of it running out of fuel; and v. A competent person was retained to service the truck who could and did periodically test safety critical functions such as braking, steering, alarms and warning systems and who had the capacity to identify safety critical defects so as to ensure that repairs were carried out to maintain the truck in a safe working condition. 124 Particular C asserted that 'the corporation failed to provide such information, instruction, training and supervision as was necessary to ensure employees' (including Darren Smith's) health and safety at work'. The sub-particulars described how the failure occurred: i. By failing to provide sufficient instruction and supervision to ensure that Mr Smith wore a seatbelt;

ii. By failing to instruct and train drivers as to the existence and importance of the emergency steering accumulator on the Terex Truck 28, the relevance of its operator warning light and the manner by which their functionality was to be checked to ensure that they were operating correctly;

iii. By failing to provide information, instruction and training on how to complete pre-start checklists and the importance of carrying them out;

iv. By failing to provide instruction and supervision to ensure that pre-start checklists were always completed, in particular those that monitored: the effectiveness of the braking system; the operator's instrumentation lights and warning systems; and the amount of fuel; and

v. By failing to provide sufficient instruction and supervision to ensure that the truck was not operated with so little fuel that there was a risk of its engine stopping whilst being driven. 125 Particular D alleged that 'the corporation failed to ensure that its system of work and the working environment of the employees, including Darren Smith, were safe and without risks to health'. i. by permitting working to be done on that day without having previously carried out a risk assessment of the process of transporting quarry product from the point of extraction at Bench No 4 to the crusher/processing plant;

ii. by failing to have an adequate refuelling system to ensure an operator would not operate the Terex 28 Truck in circumstances where it was likely that the truck would run out of fuel; and

iii. by failing to have an adequate maintenance management system for the Terex 28 Truck to ensure that defects were identified and necessary maintenance work was completed. 126 The defendants submitted in relation to the particulars and sub-particulars that they did not particularise the acts or omissions of the corporation that created the risk nor the measures that ought to have been taken by the corporation to avoid the risk. 127 In our opinion, the particulars adequately identify the acts or omissions of the corporation that created the risk. In particular A it is alleged, for example, that the corporation failed ensure that the haul road was constructed and maintained in a manner that was safe because the corporation did not ensure adequate continuous berms were placed along the side of the road, the corporation left parts of the road with no berms and left other parts of the road with berms that were of inadequate height. It is also alleged in particular A that there was no signage posted along the road relating to the grade of the road, the suggested gear to be selected, the passing width available or the speed limit. In other words, the corporation's omission was that it failed to ensure there was signage posted describing the grade of the road, the gear to be selected, the passing width available and the speed limit. 128 These allegations are clear statements of the corporation's alleged omissions. If further information is required relating to any of these failures it would be open to the trial judge to order an amendment or for further particulars to be provided or for the defendant to seek further and better particulars: Rockdale Beef at [126] per Basten JA referring to Stanton v Abernathy (1990) 19 NSWLR 656 at 667, 671-672.

129 As for the defendant's submission that the Applications do not identify what it was the corporation should have done to avoid the risk to safety, it is implicit in the particulars. For example, sub-particular (iv) of particular C alleged that the omission of the corporation was that it failed to provide instruction and supervision to ensure that pre-start checklists were always completed, in particular those that monitored: the effectiveness of the braking system; the operator's instrumentation lights and warning systems; and the amount of fuel. It is implicit in that allegation that in order to avoid the risk the corporation should have provided the necessary training and instruction to ensure pre-start checklists were always completed. Sub-particular (iii) of particular D alleged that the omission of the corporation was that it failed to have an adequate maintenance management system for the Terex 28 Truck to ensure that defects were identified and necessary maintenance work was completed. Implicit in that allegation is that to avoid the risk the corporation should have ensured there was an adequate maintenance management system in place for the truck. 130 For the purpose of the defences available to the corporation under s 28, the Applications for Order provide the necessary information for the defendants to prepare those defences. In sub-particular (v) of Particular B for example, it was alleged the corporation failed to ensure a competent person was retained to service the truck who could and did periodically test safety critical functions such as braking, steering, alarms and warning systems and who had the capacity to identify safety critical defects so as to ensure that repairs were carried out to maintain the truck in a safe working condition. The defendants, therefore, would know precisely what they needed to defend in relation to the corporation's alleged contravention in this regard and an assessment would need to be made by them whether a defence was available to the effect it was not reasonably practicable to ensure a competent person was retained to service the truck in order to avoid the risk or whether they had no control over that matter and it was impracticable to avoid the risk.

131 In Hamilton v Holland the particulars regarding the defendant's acts or omissions were contrasted with those considered in Kirk. In that respect, the Full Bench stated at [53]-[55]: [53] The acts or omissions described in the Applications may be contrasted with those impugned in Kirk. The first two particulars of the s 15(1) charge were that the defendant failed to: i. provide or maintain systems of work that were safe and without risks to health in relation to the operation of the Polaris All Terrain Vehicle ('ATV');

ii. provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the Polaris All Terrain Vehicle ('ATV'); [54] Notwithstanding that no complaint was ever made by the defendants about the adequacy of the particulars, at [28] of the joint judgment in Kirk it was stated, for example: [28] ... The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. ... [55] The particulars that are the subject of consideration in the present proceedings are significantly more extensive than those in Kirk in describing how the defendant failed to ensure safety.... 132 Similarly, the particulars in the present case are significantly more comprehensive than those impugned in Kirk. 133 If contrary to our view, that the particulars of the two Applications for Order are deficient in some way in identifying the acts or omissions of the corporation, we rely on the decision in Hamilton v Holland that any deficiency is unobjectionable (s 16(2) of the Criminal Procedure Act) or would be regarded as an irregularity (s 170 of the Industrial Relations Act). 134 The above analysis of the role of particulars also exposes a further flaw in the submissions for the defendants. The argument in this Court, regrettably, was largely conducted on a theoretical level without the necessary detailed analysis of the content of the statement of charge. This approach was further bedevilled by the defendants confusing the requirement to specify the measures to be taken by the corporation and the director with the means by which the corporation and the director might address the identified measures that should have been taken. This confusion is conveniently demonstrated by reference to the particulars provided in relation to allegation A in each Application for Order. In relation to particular A, the prosecutor alleged that the haul road at the mine was unsafe because (i) there was an inadequate continuous berm or other measure along the side of the road that, by inference, would prevent a coal truck from being able to fall over the edge of the road, and, (ii) the design of the haul road was unsafe because of its grade at the point where it turned and because of the absence of a berm or adequate berm that, by inference, prevented a coal truck from going over the edge of the mine road. These particulars inform the defendants, and in a way required by Kirk, that they failed to take these measures, namely, of having a continuous berm of sufficient type and a road design that could stop a coal truck from going over the edge of the road. This was the failure of the corporation and the director. So specified, the director is able to address his statutory defences by being informed of these measures that he and the corporation should have taken. 135 The defendants, however, submit that the decision of the High Court in Kirk requires that the directors, in these cases, also be informed of what means they should have adopted to address the measures that were not taken by the corporation. This approach would require the prosecutor to instruct the directors as to which safety body he may have directed instructions to or to specify what provider of services he may have engaged to ensure that there was an adequate berm or road design that prevented coal trucks from running off the steep mine road. This approach misunderstands the structure and proper construction of s 26 as already discussed. Section 26 is concerned with the contravention of a corporation. When there is shown to be such a contravention, each director (or person concerned in the management of the corporation) "'is taken to have contravened 'the same' provision unless one of the defences specified in [a] or [b] is made out. Both defences are drawn by reference to the 'contravention' by the corporation - not by reference to some other conduct or omission of the directors. If the corporation failed to have a berm of sufficient size to prevent a coal truck from running off the mine road, then that is the measure that the defendant directors failed to take. This particular satisfies the Kirk requirements. Just as the prosecutor is not obliged to instruct the corporation of the method or entity by which such a berm might or should have been constructed, neither is the prosecutor obliged to inform the directors of such methods or entities. The directors answer may be that such a berm could not have been safely erected or erected at all for geological and/or engineering reasons but that possibility does not detract from or render invalid the particularisation provided by the prosecutor in these matters - those possible difficulties (if they arise) are matters for the trial.

136 We conclude that the Applications for Order in Matter No IRC 956 and 957 of 2007 plead the acts or omissions of the corporation, Hunter Quarries Pty Ltd. Jurisdiction to quash, etc; jurisdiction to amend

137 Ancillary issues in these proceedings were: (1) whether, in the event the Applications for Order are invalid, null or void, the Court has jurisdiction to quash the Orders requiring the attendance at court of each of the defendants, or strike out or permanently stay the proceedings or make a declaration that the defendants have no further obligation to attend the court; and (2) whether the Court has jurisdiction to hear and determine any application by the prosecutor to amend the charges to amend any defect.

138 In the light of our findings, neither of these questions need be answered. However, in relation to the second question it is, in our opinion, clear on the face of s 170 of the Industrial Relations Act, that the Court has the power, in any proceedings before it, to make any amendments to the proceedings that it considers to be necessary in the interests of justice. CONCLUSION REGARDING QUESTIONS 1 TO 6

139 It should be apparent from our consideration of questions 1 to 6 that the defendants have been unsuccessful in achieving the answers they sought, except in relation to whether the Court has jurisdiction to deal with the questions. The effect of our consideration of the questions is that the charges against the defendants in the Amended Applications for Order, presuming the constitutional validity of s 26, is that the charges are not invalid, null or void or otherwise bad at law. It therefore becomes necessary to examine the constitutional validity of s 26. 140 However, before doing so, it is necessary to consider the question of whether the Industrial Court of New South Wales is a court of a State within the meaning of s 77(iii) of the Constitution and s 39(2) of the Judiciary Act 1903 (Cth). It is obviously necessary to do so for the purpose of determining whether s 39(2) of the Judiciary Act invests this Court with federal jurisdiction to decide the constitutional issue raised by Mr Chevalley in relation to s 26 of the OHS Act 2000. It is to be noted in this respect that it was common ground between the parties that this Court was invested with the necessary jurisdiction. WHETHER INDUSTRIAL COURT IS A COURT OF A STATE

141 Section 77 of the Constitution provides that the Commonwealth Parliament may make laws with respect to matters in ss 75-76 (matters where the High Court has original jurisdiction; matters in relation to which the Commonwealth Parliament may make laws further conferring original jurisdiction on the High Court including matters arising under the Constitution or its interpretation) including laws '(iii) investing any court of a State with federal jurisdiction'. Pursuant to s 77(iii), the Commonwealth enacted s 39(2) of the Judiciary Act. That provision vests 'courts of the States' with federal jurisdiction in relation to those matters in ss 75 and 76 of the Constitution: ...

(2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions: (a) ….

142 The Attorney referred to what was said by McHugh J in Veta Ltd v Evans & Ors [2003] HCATrans 252 (2 July 2003) as supporting the proposition that the Industrial Court is a 'court of a State' that may be vested with federal jurisdiction. In that case his Honour was referring to the Commission in Court Session, which was subsequently to be known as the Industrial Court of New South Wales: see s 151A of the Industrial Relations Act 1996. 143 In Veta, his Honour decided that a matter commenced in the original jurisdiction of the High Court should be remitted to the Commission in Court Session under s 44 of the Judiciary Act. Counsel for Veta had contended that the Commission in Court Session was not a 'court of a State' within section 44 of the Judiciary Act and so the matter could not be remitted. Section 44(1) provided: (1) Any matter other than a matter to which subsection (2) applies that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter, may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter….

144 McHugh J rejected Veta's contention in the following terms: The plaintiffs contend that the Court should not remit the matter, relying heavily on the claim that the Commission in Court Session is not a court for the purposes of section 44 of the Constitution. Mr Ellicott points out that in Minister for Youth and Community Services v Health and Research Employees' Association of Australia (1987) 10 NSWLR 543 at 559 and following, I expressed the view that the Commission, exercising a not dissimilar power to section 106, is not exercising judicial power.

However, the real question is not whether the Commission in Court Session is exercising judicial power under section 106 but whether it is a court for the purposes of section 44 of the Judiciary Act . There is nothing in the Constitution which prevents State courts being invested with federal jurisdiction, notwithstanding that some or a significant part of their jurisdiction is concerned with the determination of non-judicial matters.

The Industrial Relations Act (NSW) contains several considerations which point strongly to the Commission in Court Session being a court. Section 152 of the Act declares the Commission in Court Session to be a superior court of record. The members of the Commission have the same rank, title, status and precedence as judges of the Supreme Court of New South Wales. They have the constitutional protection under the Constitution that the Supreme Court judges have. When sitting in court session the rules of evidence and the procedures of a superior court of record apply. Legal practitioners have a right of appearance. The Commission in Court Session may punish for contempt. It also has a summary criminal jurisdiction in criminal proceedings for offences under the Act.

Some years ago in In re an Application by Public Service Association of New South Wales (1947) 75 CLR 430 Mr Justice Williams held that the Industrial Commission of New South Wales as formerly constituted was a court for the purposes of section 40 of the Judiciary Act . This Court has also assumed that the predecessor of the present Industrial Relations Commission was a court exercising federal jurisdiction for the purposes of section 73 of the Constitution: see Gosper v Sawyer (1985) 160 CLR 548 at 556 and Tana v Baxter (1986) 160 CLR 572. More recently in Tszyu v Fightvision Pty Ltd (2001) 104 IR 225, [2001] NSWCA 103, Justice Mason said at paragraph 58 that the Commission in Court Session was a superior court of record and, when exercising jurisdiction under section 106 of the Industrial Relations Act, was exercising judicial power.

145 The Attorney also placed reliance on Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 387; (2006) 68 NSWLR 77, where the New South Wales Court of Appeal considered whether the Administrative Decisions Tribunal was a 'court of a State' as that term is used in s 77(iii) such that it could be vested with federal jurisdiction under the Trade Practices Act 1974 (Cth). 146 At [26]-[27] Spigelman CJ (with whom Hodgson and Bryson JJA agreed) identified the indicia in the Administrative Decisions Tribunal Act 1997 which operated in favour of the Tribunal being regarded as a 'court of a State' and those indicia which operated against that proposition. At [52], [55], [58] and [60]-[64] Spigelman CJ referred to the jurisdiction of a federal court and a court of a State being exercised by judges: [52] In order to be part of the constitutionally required integrated judicial system, a tribunal must be able to be characterised not only as a court, but as a court of law. (See by way of comparison Attorney General v British Broadcasting Corporation supra at 359-360 per Lord Scarman.) One aspect of a court of law is that it is comprised, probably exclusively although it is sufficient to say predominantly, of judges.

[55] A significant indicator of the content of the constitutional expression "court of a State" is found in s 79 of the Constitution which provides: "79 The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes."

Section 72 of the Constitution assumes that a federal court will be composed of judges, when it commences: "72 The Justices of the High Court and of the other courts created by the Parliament: ..."

[58] Similarly, s 79 assumes that a "court of a State", like any other court exercising the judicial power of the Commonwealth, will be composed of "judges".

[60] In Le Mesurier v Connor [1929] HCA 1; (1929) 42 CLR 481, when considering the meaning of the expression "court of a State" in s 77(iii), (see at p510.6; p511.6), Isaacs J said at p511.2:

"A Court consists, then, of the Judges, and of them only." [61] To similar effect is the observation of Jordan CJ, referring to a new federal court, in Ex parte Coorey (1945) 45 SR (NSW) 287 at 302 (et seq):

"The essential factor which brings the new court into actual existence as an operative entity is the appointment of a Judge or Judges." [62] In Kotsis v Kotsis [1970] HCA 61; (1971) 122 CLR 69 at 91, Windeyer J said that the word "court" in s 77(iii) means "an existing institution, an organisation for the administration of justice, consisting of judges and with ministerial officers having specified functions". This definition was adopted in HCF at 60 per Mason J and in Harris v Caladine supra at 92 per Mason CJ and Deane J. It was also quoted by Gibbs CJ in HCF at p58. Windeyer J's focus on an "institution ... consisting of judges" should be regarded as authoritative.

[63] The powers of a court, including the judicial power of the Commonwealth, may be exercised by the non-judicial officers of a court. (See HCF supra, Harris v Caladine supra.) However, the performance of such functions, in the case of a federal court must be subject to effective control by judges. (See Harris v Caladine at 94, 95, 121-122, 149.) The Full Court of the Supreme Court of Western Australia has applied this principle, in my view correctly, to a State court exercising federal jurisdiction. (See Newman v A (1992) 16 Fam LR 209 esp at 211, 215.)

[64] Restrictions on the power of delegation must exist before an institution can "properly be described as a court" (per Gaudron J in Harris v Caladine at 149), or before it can "properly be said that, as a practical as well as a theoretical matter, the judges constitute the court" (at 95 per Mason CJ and Deane J). Some such restriction was, and is, an essential feature of a "court of a State", within s 77(iii). 147 At [65] his Honour held that the ADT was not a court of a State within s 86(2) of the Trade Practices Act: [65] The membership of the Tribunal, or of the Retail Leases Division if it were appropriate to consider it separately, is not predominantly composed of judges. The Tribunal is not a "court of a State" within s 86(2) of the Trade Practices Act . 148 Applying these authorities, the Attorney submitted that the Industrial Court of New South Wales was 'a court of the State' within the meaning of s 77(iii) of the Constitution and s 39(2) of the Judiciary Act. This, it was submitted, was evidenced by the following features of the Industrial Relations Act: (a) Section 151 provides that the Industrial Court may only be constituted by a judicial member or members: Skiwing at [26]-[27]. The Industrial Court is accordingly not only predominantly, but entirely, composed of judges: cf Skiwing at [58]-[62]. Judicial members must have held judicial office or been an Australian lawyer of at least 7 years' standing (section 149): cf Skiwing at [27].

(b) A judicial member may only be removed or retired from office in accordance with the applicable provisions of Part 9 of the Constitution Act 1902 and Parts 7 and 8 of the Judicial Officers Act 1986 (IRA Schedule 2, clause 10): cf Skiwing at [27]

(c) Section 152 establishes the Industrial Court as a superior court of record: Veta at p 19. In turn, section 152(2) provides that the Industrial Court is a court of equivalent status to the Supreme Court and the Land and Environment Court.

(d) Each judicial member of the Industrial Court has the same rank, title, status and precedence as a judge of the Supreme Court (IRA Schedule 2, clause 7): Veta at p 19.

(e) By section 153 the Industrial Court is expressed to have a jurisdiction : Skiwing at [26]. Section 154 also confers powers on the Industrial Court to make binding declarations of right.

(f) Section 163(2) provides that the rules of evidence and other formal procedures of a superior court of record apply to the Industrial Court: Veta at p 19.

(g) Legal practitioners have a right of appearance before the Industrial Court (s 166): Skiwing at [26].

(h) Section 153 provides that the Full Bench of the Industrial Court has the power to deal with and punish for contempt: Cf Skiwing at [27]; Veta at p 19.

(i) Section 168 confers a summary criminal jurisdiction in criminal proceedings for offences: Veta at p 19. Section 105 of the OHS Act 2000 also confers on the Industrial Court summary criminal jurisdiction for offences against that Act or its regulations.

(j) Section 164 provides that the Industrial Court has the power to compel a person to give evidence or produce documents: Skiwing at [27].

(k) By section 181, the Industrial Court has the power to award costs: Skiwing at [26]. 149 The Attorney also observed that the fact that judicial members of the Industrial Court may separately exercise non-judicial powers does not alter the conclusion that the Industrial Court is 'a court of a State'. As McHugh J observed in Veta in relation to the Commission in Court Session (see also Skiwing at [47]): There is nothing in the Constitution which prevents State courts being invested with federal jurisdiction, notwithstanding that some or a significant part of their jurisdiction is concerned with the determination of non judicial matters. 150 We consider the Attorney's analysis supports a finding that the Industrial Court is a court of a State within the meaning of s 77(iii) of the Constitution and s 39(2) of the Judiciary Act. See also the decision of the High Court in K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 at [113]-[131] as to the tests applied to determine whether the Licensing Court (SA) was a 'court of a State' for the purposes of receiving federal jurisdiction under s 77(iii) of the Constitution. Kirby J in K-Generation at [208]-[210] stated that the 'Kable principle' (which will be later explained) applied beyond Supreme Courts and extended to any court of a State. 151 It follows that s 39(2) of the Judiciary Act vests the Industrial Court with federal jurisdiction to determine the constitutional issue raised by the defendant in relation to s 26 of the OHS Act 2000. QUESTION 7 - CONSTITUTIONAL VALIDITY OF SECTION 26

152 As earlier stated, s 26 of the OHS Act 2000 provides that where a corporation contravenes the Act 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 of one of the two defences available. 153 We repeat what we said earlier about s 26: a. the provision reverses the onus of proof which would otherwise rest upon the prosecution of proving that a defendant who is a director of the corporation, and each person concerned in the management of the corporation was in a position to influence the conduct of the corporation in relation to its contravention of the provision, or the defendant, being in such a position, did not use all due diligence to prevent the contravention by the corporation; b. the provision is not imposing liability for an offence which was really committed by the corporation and is only 'taken' to have been committed by the director or person concerned in the management of the corporation; it is providing for liability for an offence to which that director or person concerned is deemed to be a party because of his or her complicity in it; and c. there is no basis upon which to draw a distinction between the offences committed by the director or person concerned in the management of the corporation and the offences committed by the corporation.

154 The defendant appears to have accepted the Attorney's contention that laws may alter or reverse the traditional criminal burden of proof at common law and do not thereby impede the exercise of the judicial power of the Commonwealth: Nicholas at [24] per Brennan CJ; at [152] per Gummow J (see also footnote 231); and at [55] per Toohey J citing Milicevic v Campbell [1975] HCA 20; (1975) 132 CLR 307. 155 Mr Chevalley submitted, however, that s 26 was invalid because of its cumulative effect. It was submitted that s 26 presumed the guilt of defendant B for the crime of corporation A and limited the capacity of the defendant to rebut the charge by way of contradictory and better evidence. Counsel submitted: It thereby removes the capacity of this Court to engage in 'a curial determination of the actual existence or occurrence of the acts, matters and things upon which criminal liability for the offence charged depends': Nicholas v The Queen (1998) 193 CLR 173 at [19] per Brennan CJ. Section 26 consequently represents such an interference with the governance of a trial and a distortion of its predominant characteristics as to involve this Honourable Court in the determination of criminal guilt otherwise than by the exercise of judicial power ( Nicholas v The Queen (1998) 193 CLR 173 at 232 [145]).

156 It will have been seen from the summary of submissions that the defendant relies on some 14 propositions to submit that s 26 'represents such an interference with the governance of a trial and a distortion of its predominant characteristics as to involve this… Court in the determination of criminal guilt otherwise than by the exercise of judicial power'. Before dealing with each of those propositions it is necessary to review the relevant authorities regarding the 'infringement' or 'usurpation' of judicial power: Nicholas v R [1998] HCA 9; (1998) 193 CLR 173 at 220 per McHugh J. It was the defendant's submission that s 26 infringes Ch III of the Constitution: 'This Court has been left with a function by the provision, but the function is so limited as to distort the character of the institution that fulfils it.'

157 The appropriate starting point is Kable v Director of Public Prosecutions of New South Wales [1996] HCA 24; (1996) 189 CLR 51. In Kable, the High Court held that the scheme embodied in Chapter III of the Constitution had the effect of preventing a State Parliament from conferring on the Supreme Court of the State (Gaudron, McHugh and Gummow JJ) or on a State court exercising federal jurisdiction (Toohey J) powers or functions that were repugnant to or inconsistent with or incompatible with, the exercise by that court of the judicial power of the Commonwealth. Brennan CJ and Dawson J dissented on this point. 158 Although it was held in Kable that the Supreme Court of New South Wales could not validly exercise non-judicial functions conferred by the Community Protection Act 1994, this limitation was not confined to State Supreme Courts. The majority in Kable all agreed that State courts exercising federal jurisdiction could not perform functions inconsistent with the exercise of judicial power, including the function of considering the constitutional validity of State legislation, because it would be incompatible with Chapter III of the Constitution. 159 In the present proceedings the Industrial Court is exercising federal jurisdiction in that it is called upon to determine the constitutional validity of s 26 of the OHS Act 2000. 160 Prior to the decision in Kable there were a number of relevant decisions of the High Court addressing the exercise of judicial power. They included: Commonwealth v Melbourne Harbour Trust Commissioners [1922] HCA 31; (1922) 31 CLR 1; Williamson v Ah On [1926] HCA 26; (1926) 39 CLR 95; Polyukhovich v Commonwealth of Australia (War Crimes Case) [1991] HCA 32; (1991) 172 CLR 501; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1. Melbourne Harbour Trust

161 In Melbourne Harbour Trust Commissioners it was contended that s 48 of the Customs Act 1901 (Cth) was an 'usurpation of the judicial power of the Commonwealth.' Section 48 provided that: Whenever any such Customs security is put in suit by the Collector the production thereof without further proof shall entitle the Collector to judgment for their stated liability against the persons appearing to have executed the same unless the defendants shall prove compliance with the condition or that the security was not executed by them or release or satisfaction. 162 Knox CJ, Gavan Duffy and Starke JJ said at 12: A law does not usurp judicial power because it regulates the method or burden of proving facts. Isaacs J stated at 17: Sec. 48 was attacked as invalid because, it is said, it is an attempt by the Legislature to exercise judicial power and that, it is said, is vested exclusively in the Judicature. There is no substance in the objection. It is a mere evidentiary section and of a class well known in Customs Acts. For instance, in England, in the Act 39 & 40 Vict. c. 36, secs. 259, 260, 262. These are only examples of many enactments placing the burden of proof on defendants, whose knowledge of the true facts is necessarily greater than that of anyone else. Justice might easily be otherwise defeated. Williamson v Ah On

163 In Williamson v Ah On, the question was whether Commonwealth legislation that cast the burden on the defendant to prove he was not an 'immigrant' was invalid. Isaac J at 108 stated: The contention for invalidity is rested on the principle that the Commonwealth Parliament cannot enlarge its powers by simply "deeming" anything to be within them. As applied to this case the argument is that it cannot lawfully "deem" a person an immigrant if that person in fact is for any reason not subject to the immigration power, and as such a case may be included the provision is illegal.… It is one thing to say, for instance, in an Act of Parliament, that a man found in possession of stolen goods shall be conclusively deemed to have stolen them, and quite another to say that he shall be deemed to have stolen them unless he personally proves that he got them honestly. The first is a parliamentary arbitrary creation of a new offence of theft, leaving no room for judicial inquiry as to the ordinary offence; the second is only an evidentiary section, altering the burden of proof in the ordinary case of theft, and requiring certain pre-appointed evidence to fit the special circumstances in the interests of justice, because the accused best knows the facts, and leaving the Court with these provisions to examine the facts and determine the matter. 164 Higgins J said (at 122), 'the evidence by which an offence may be proved is a matter of mere procedure'. He added: The argument that it is a usurpation of the judicial power of the Commonwealth if Parliament prescribe what evidence may or may not be used in legal proceedings as to offences created or provisions made by Parliament under its legitimate powers is, to my mind, destitute of foundation. 165 Rich and Starke JJ at 127 stated: It is clear, we think, that a grant of power to a British Dominion to make laws for the peace, order and good government of its territory enables that Dominion, subject to any overriding Imperial legislation, to enact whatever laws of evidence it thinks expedient, and in particular justifies laws regulating the burden of proof, both in civil and criminal cases, and the effect of non-compliance with those laws in legal proceedings; and it is not for the Courts of law to say whether the power has been exercised wisely or not.

See also Milicevic v Campbell where Gibbs J (at 316-317) and Mason J (at 318-319) accepted Williamson as good law. Gibbs J at 316 stated: The parliament may, when legislating with respect to a subject within the ambit of its powers, validly enact laws prescribing the rules of evidence and procedure to be observed in any legal proceedings, whether criminal or civil, arising in relation to that subject matter and may in particular cast the onus of proof upon either party to those proceedings: Williamson v. Ah On [1926] HCA 46; (1926) 39 CLR 95, at pp 108 et seq, 126-127, 127-129; cf at pp 101-102, 122-123; Orient Steam Navigation Co. Ltd. v. Gleeson [1931] HCA 2; (1931) 44 CLR 254, at pp 259-260, 262-263, 264 ; and see also The Commonwealth v. Melbourne Harbour Trust Commissioners [1922] HCA 31; (1922) 31 CLR 1, at p 12 . Of course, the parliament may not, by enacting legislation which purports to be merely procedural, extend the operation of its laws to subjects beyond its power; it cannot, in other words, expand the boundaries of its powers by its own enactments. Polyukhovich

166 In Polyukhovich the High Court considered, inter alia, whether s 9 of the War Crimes Act 1945 (Cth) usurped the judicial power of the Commonwealth. Section 9 provided that a person who on or after 1 September 1939 and on or before 8 May 1945 committed a 'war crime' was guilty of an indictable offence against the Act. Mason CJ, Dawson, Toohey and McHugh JJ, Deane and Gaudron JJ dissenting, held that s 9 did not usurp the judicial power of the Commonwealth. Lim

167 In Lim at 26-27, Brennan Deane and Dawson JJ drew support from Polyukhovich for the following proposition: Thus, it is well settled that the grants of legislative power contained in s.51 of the Constitution, which are expressly "subject to" the provisions of the Constitution as a whole, do not permit the conferral upon any organ of the Executive Government of any part of the judicial power of the Commonwealth. Nor do those grants of legislative power extend to the making of a law which requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power.

And further at 27 that: There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. 168 Lim was concerned with a challenge to a number of provisions in the Migration Act 1958 (Cth) that empowered the Commonwealth to detain certain 'designated persons' and prevented any court, including the High Court, from ordering their release. The Court held (Brennan, Deane and Dawson JJ at 35-37, Gaudron J at 58) that a law, which prevented the High Court from ordering the release of an unlawfully detained immigrant, was invalid. Mason CJ, Toohey and McHugh JJ dissented. 169 Lim stands for the proposition that the legislature cannot not make a law 'which requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power': at 27. Kable

170 We referred earlier to Kable. It was a decision given in 1996. It concerned whether the Community Protection Act, which empowered the New South Wales Supreme Court to order that Mr Kable remain imprisoned if it was reasonably likely that he would commit a 'serious act of violence' if released, was invalid. As we have already noted, the majority held the legislation was invalid. 171 Toohey, Gaudron and McHugh JJ each held to the effect that Parliaments of the States may not legislate to confer powers on State courts which are repugnant to or incompatible with, their exercise of the judicial power of the Commonwealth (Toohey J at 94, Gaudron J at 103, McHugh J at 109, 116). McHugh J added that neither the Parliament of New South Wales nor the Parliament of the Commonwealth could 'legislate in a way that permits the Supreme Court while exercising federal judicial power to disregard the rules of natural justice or to exercise legislative or executive power': at 116. 172 Additionally, Toohey J stated '[t]he Act answers that aspect of incompatibility which was identified in Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 as "the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution ... is diminished"' (at 98). 173 Gaudron J considered that the relevant provision of the Community Protection Act (s 5(1)) had 'the effect of compromising the integrity of the judicial system brought into existence by Ch III of the Constitution' and that (at 107): The integrity of the courts depends on their acting in accordance with the judicial process and, in no small measure, on the maintenance of public confidence in that process (177). Particularly is that so in relation to criminal proceedings which involve the most important of all judicial functions, namely, the determination of the guilt or innocence of persons accused of criminal offences. Public confidence cannot be maintained in the courts and their criminal processes if, as postulated by s 5(1) the courts are required to deprive persons of their liberty, not on the basis that they have breached any law, but on the basis that an opinion is formed, by reference to material which may or may not be admissible in legal proceedings, that on the balance of probabilities, they may do so. 174 McHugh J considered the legislation and its procedures compromised 'the institutional impartiality of the Supreme Court' (at 121) and that 'public confidence in the impartial administration of the judicial functions of the Supreme Court must inevitably be impaired' (at 124). Gummow J referred to sapping 'the appearance of institutional impartiality and the maintenance of public confidence' (at 133).

175 In Fardon v Attorney General (Qld) [2004] HCA 46; (2004) 223 CLR 575 Gleeson CJ at 591 described the decision in Kable as one that: [E]stablished the principle that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.

176 Nicholas v R was concerned with s 15X of the Crimes Act 1914 (Cth), which directed a court in exercising its discretion as to whether evidence that narcotic goods were imported into Australia should be admitted, the fact that a law enforcement officer committed an offence while collecting evidence against the accused, was to be disregarded. It was contended, inter alia, by the accused that s 15X invalidly purported to direct a court to exercise its discretionary power in a manner or to produce an outcome which was inconsistent with the essential character of a court or with the nature of judicial power. Secondly, that s 15X 'invalidly undermines the integrity of the Court's processes and public confidence in the administration of justice'. 177 It was held by a majority (Brennan CJ, Toohey, Gaudron, Gummow and Hayne JJ, McHugh and Kirby JJ dissenting) that the provision was valid. 178 Brennan CJ said at 187 (references omitted): To exercise judicial power, a court is bound to take the essential steps identified by Mason, Murphy, Brennan and Deane JJ in Fencott v Muller . Referring to Huddart, Parker their Honours said: "The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion." As the rights and liabilities prescribed by a court's judgment (including a liability to undergo punishment in accordance with a sentence imposed by a criminal court) declare or are founded on the antecedent rights and liabilities of the parties (including a right or liability to the exercise of a judicial discretion), the court must find the facts and apply the law which, at the relevant time, prescribe those antecedent rights and liabilities. The finding of facts is a curial determination of the actual existence or occurrence of the acts, matters and things on which criminal liability for the offence charged depends. 179 Referring to Williamson and what Isaacs J there said, Brennan CJ observed at 190: If a court could be directed by the legislature to find that an accused, being found in possession of stolen goods, had stolen them, the legislature would have reduced the judicial function of fact finding to the merest formality. The legislative instruction to find that the accused stole the goods might prove not to be the fact. The legislature itself would have found the fact of stealing.

Further, that: The reversal of an onus of proof affects the manner in which a court approaches the finding of facts but is not open to constitutional objection provided it prescribes a reasonable approach to the assessment of the kind of evidence to which it relates.

And at 191: But s 15X leaves the trial judge with a discretion to reject evidence of importation of narcotic goods in an authorised controlled operation, requiring only that in exercising the discretion, the illegal conduct of law enforcement officers should be disregarded. The existence of the judicial discretion does not alter the classification of the law as a law governing the admission of evidence and therefore a law governing procedure. The procedure for determining the admission of evidence of illegal importation is affected, but the judicial function of fact finding is unchanged and the judicial power to be exercised in determining guilt remains unaffected. The first ground of objection to the validity of s 15X fails. 180 As to the accused's second ground (undermining the integrity of the court's processes and public confidence in the administration of justice) Brennan CJ found at 197: To suggest that the statutory will of the Parliament, expressed in s 15X, is to be held invalid because its application would impair the integrity of the court's processes or bring the administration of criminal justice into disrepute is, in my respectful opinion, to misconceive both the duty of a court and the factors which contribute to public confidence in the administration of criminal justice by the courts. It is for the Parliament to prescribe the law to be applied by a court and, if the law is otherwise valid, the court's opinion as to the justice, propriety or utility of the law is immaterial. Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests. To hold that a court's opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power. It would elevate the court's opinion about its own repute to the level of a constitutional imperative. It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice. 181 Toohey J held (at 202) that s 15X: [P]ostulates a particular evidentiary footing upon which a court may then proceed where the admissibility of evidence that narcotic goods were imported into Australia is at issue. Section 15X is an evidentiary provision. It does not determine whether a charge of an offence against the Customs Act will succeed or fail. 182 At 207 Gaudron J observed that (references omitted): The difficulties involved in defining "judicial power" are well known. In general terms, however, it is that power which is brought to bear in making binding determinations as to guilt or innocence, in making binding determinations as to rights, liabilities, powers, duties or status put in issue in justiciable controversies, and, in making binding adjustments of rights and interests in accordance with legal standards. It is a power which is exercised in accordance with the judicial process and, in that process, many specific and ancillary powers are also exercised. One ancillary power which may be exercised in that process is the power to exclude evidence in the exercise of a discretion which permits that course. Other ancillary powers which are or may be brought to bear include the power to grant an adjournment, to make procedural rulings and to rule on the admissibility of evidence.

And at 208-209: In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute. 183 At 210-211, Gaudron J concluded in relation to s 15X that it: [D]oes no more than exclude the bare fact of illegality on the part of law enforcement officers from consideration when determining whether the Ridgeway discretion should be exercised in favour of an accused person. So construed, it is clear that it does not prevent independent determination of the question whether that evidence should be excluded or, more to the point, independent determination of guilt or innocence. And so construed, it is also clear that it neither authorises nor requires a court to proceed in circumstances which bring or tend to bring the administration of justice into disrepute. And although it is perhaps not quite so clear, it does not offend against the requirements of equal justice. 184 At 232 Gummow J stated: The essential question concerns the limitation imposed by s 15X upon the discretion which the trial court otherwise would enjoy to exclude evidence that the heroin in question was imported into Australia in contravention of the Customs Act. Is this such an interference with the governance of the trial and a distortion of its predominant characteristics as to involve the trial court in the determination of the criminal guilt of the accused otherwise than by the exercise of the judicial power of the Commonwealth? 185 Gummow J found at 236 that s 15X did not: [D]eem to exist, or to have been proved to the satisfaction of the tribunal of fact, any ultimate fact, being an element of the offences with which the accused is charged. A law of that nature, albeit procedural in form, might well usurp the constitutionally mandated exercise of the judicial power for the determination of criminal guilt. Section 15X is quite different in form and operation.

186 Gummow J also observed at 234-5 that 'there is a lengthy history of laws of the Commonwealth, particularly with respect to restrictive trade practices, immigration and customs (including s 233B(1)(c) itself), which create civil liabilities or criminal offences and reverse the traditional onus of proof'. Cases cited by his Honour were: R v Associated Northern Collieries [1911] HCA 73; (1911) 14 CLR 387, reversed on other grounds by the Full Court: Adelaide Steamship Co Ltd v R and the A-G of the Commonwealth [1912] HCA 58; (1912) 15 CLR 65, which decision was upheld by the Privy Council: Attorney-General (Cth) v Adelaide Steamship Co Ltd [1913] UKPCHCA 2; (1913) 18 CLR 30; [1913] AC 781; The Commonwealth v Melbourne Harbour Trust Commissioners; Williamson v Ah On; Orient Steam Navigation Co Ltd v Gleeson [1931] HCA 2; (1931) 44 CLR 254; Milicevic v Campbell; see also He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 at 545-546, 587-588; Leask v Commonwealth of Australia [1996] HCA 29; (1996) 187 CLR 579 at 625-626. 187 At 278 Hayne J stated: Nothing in Pt 1AB purports to take any question of adjudging or punishing criminal guilt under a law of the Commonwealth away from the courts which exercise the judicial power of the Commonwealth. Even if s 15X is construed as entirely removing (in cases to which it applies) the discretion to exclude evidence of the illegal conduct of law enforcement officers who were concerned in the importation of narcotic goods, the issue of guilt or innocence of the crime charged in cases to which that section applies is left to the courts to decide.

I have said that the distinction between legislation dealing only with questions of evidence or procedure and legislation dealing with questions of guilt or innocence will not always be easy to draw. It is possible to imagine changes to evidence or procedure which would be so radical and so pointed in their application to identified or identifiable cases then pending in the courts that they could be seen, in substance, to deal with ultimate issues of guilt or innocence. 188 Nicholas then, essentially stands for the proposition that s 15X was an evidentiary provision that did not affect the judicial function of fact finding and the judicial power to be exercised in determining guilt. Bass

189 In Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 it was said in the joint judgment (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting) at 359 (references omitted): Judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the evidence led against them. It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case. Fardon

190 In Fardon v Attorney General (Qld) the High Court (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ, Kirby J dissenting) upheld the validity of the Dangerous Prisoners (Sexual Offenders) Act 2003. That law allowed the Queensland Attorney General to apply to the Supreme Court for an order that a person who has been convicted of a serious sexual offence be detained in prison for a further indefinite period after the end of the sentence which they were previously given. It was held that the Act did not impair the institutional integrity of the Supreme Court of Queensland in such a fashion as to be incompatible with the Court's constitutional position as a potential repository of federal judicial power. 191 At 592 Gleeson CJ observed: The Act is a general law authorising the preventive detention of a prisoner in the interests of community protection. It authorises and empowers the Supreme Court to act in a manner which is consistent with its judicial character. It does not confer functions which are incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power. It confers a substantial discretion as to whether an order should be made, and if so, the type of order. If an order is made, it might involve either detention or release under supervision. The onus of proof is on the Attorney-General. The rules of evidence apply. The discretion is to be exercised by reference to the criterion of serious danger to the community. The Court is obliged, by s 13(4) of the Act, to have regard to a list of matters that are all relevant to that criterion. There is a right of appeal. Hearings are conducted in public, and in accordance with the ordinary judicial process. There is nothing to suggest that the Supreme Court is to act as a mere instrument of government policy. The outcome of each case is to be determined on its merits. 192 McHugh J stated at 598-599: Chapter III of the Constitution, which provides for the exercise of federal judicial power, invalidates State legislation that purports to invest jurisdiction and powers in State courts only in very limited circumstances. One circumstance is State legislation that attempts to alter or interfere with the working of the federal judicial system set up by Ch III. Another is the circumstance dealt with in Kable : legislation that purports to confer jurisdiction on State courts but compromises the institutional integrity of State courts and affects their capacity to exercise federal jurisdiction invested under Ch III impartially and competently. Subject to that proviso, when the Federal Parliament invests State courts with federal jurisdiction, it must take them as it finds them. 193 At 600-601 McHugh J further stated: The bare fact that particular State legislation invests a State court with powers that are or jurisdiction that is repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects that court's capacity to exercise federal jurisdiction impartially and according to federal law. State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation. State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised.

… State legislation that requires State courts to act in ways inconsistent with the traditional judicial process will be invalid only when it leads to the conclusion that reasonable persons might think that the legislation compromises the capacity of State courts to administer invested federal jurisdiction impartially according to federal law…. 194 At 656 Callinan and Heydon JJ adopted the following test: Despite the differing formulations of the Justices in the majority [in Kable ], the primary issue remained whether the process which the legislation required the Supreme Court of New South Wales to undertake, was so far removed from a truly judicial process that the Court, by undertaking it, would be so tainted or polluted that it would no longer be a suitable receptacle for the exercise of Federal judicial power under Ch III of the Constitution. This Court did not in Kable hold however that in all respects, a Supreme Court of a State was the same, and subject to the same constraints, as a federal court established under Ch III of the Constitution. Federal judicial power is not identical with State judicial power. Although the test, whether, if the State enactment were a federal enactment, it would infringe Ch III of the Constitution, is a useful one, it is not the exclusive test of validity. It is possible that a State legislative conferral of power which, if it were federal legislation, would infringe Ch III of the Constitution, may nonetheless be valid. Not everything by way of decision-making denied to a federal judge is denied to a judge of a State. So long as the State court, in applying legislation, is not called upon to act and decide, effectively as the alter ego of the legislature or the executive, so long as it is to undertake a genuine adjudicative process and so long as its integrity and independence as a court are not compromised, then the legislation in question will not infringe Ch III of the Constitution. Forge

195 In Forge v Australian Securities & Investments Commission [2006] HCA 44; (2006) 228 CLR 45 the issue the High Court considered was whether acting judges could be appointed to the New South Wales Supreme Court. The appellant contended that such appointments circumvented constitutional protections for the independence and impartiality of the judicial branch. The Court held (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ, Kirby J dissenting) that neither s 37 of the Supreme Court Act 1970 nor the appointment of acting judges pursuant to it, was inconsistent with Chapter III of the Constitution.

196 Gleeson CJ held that Chapter III requires that State courts continue to answer the description of 'courts', and, to do this, a body must satisfy minimum requirements of independence and impartiality (at [41]). Gummow, Hayne and Crennan JJ held at [63]-[64] (references omitted): At the risk of undue abbreviation, and consequent inaccuracy, the task given to the Supreme Court [in Kable ] was identified as a task where the Court acted as an instrument of the Executive. The consequence was that the Court, if required to perform the task, would not be an appropriate recipient of invested federal jurisdiction. But as is recognised in Kable, Fardon v Attorney-General (Qld) and North Australian Aboriginal Legal Aid Service Inc v Bradley the relevant principle is one which hinges upon maintenance of the defining characteristics of a "court", or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to "institutional integrity" alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.

It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court. The cases concerning identification of judicial power reveal why that is so. An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal. Gypsy Jokers

197 In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 the appellant sought review of a decision of the Commissioner of Police to issue a fortification removal notice in the Supreme Court of Western Australia. Section 76(2) of the Corruption and Crime Commission Act 2003 (WA) provided that the Commissioner could identify any information provided to the Supreme Court for the purposes of review proceedings as confidential 'if its disclosure might prejudice the operations of the Commissioner' with consequences for the use and disclosure of the information. As Gleeson CJ noted at [4]: Section 76 provides for a limited form of judicial review of fortification removal notices issued by the Commissioner of Police under s 72(2) of the Corruption and Crime Commission Act Such a notice requires a reasonable belief by the Commissioner of Police that the subject premises are heavily fortified and are habitually used as a place of resort by people reasonably suspected to be involved in organised crime. Under s 76(1) the question for the Supreme Court, upon review, is whether the Commissioner of Police could reasonably have had that belief. 198 One of the issues for the High Court was whether s 76(2) impaired the Supreme Court's character as independent and impartial or otherwise improperly controlled the exercise of its jurisdiction contrary to Ch III of the Constitution. 199 The Court held that it was for the Supreme Court, not for the Police Commissioner, to determine whether disclosure of information provided by the Commissioner might prejudice police operations. Section 76(2) of the Corruption and Crime Commission Act 'did not render unexaminable by the Supreme Court the decision of the Commissioner. It did not direct the Supreme Court how to exercise its jurisdiction so as to impair the character of the Court as independent and impartial.' K-Generation 200 In K-Generation, s 28A of the Liquor Licensing Act 1997 (SA) required the Licensing and Gambling Commissioner, the Licensing Court and the Supreme Court to take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence. A company applied for a licence under the Act. The Police Commissioner intervened in the licensing proceedings and introduced evidence about the fitness of certain persons to occupy positions of authority in a company holding the licence. The evidence was classified as confidential criminal intelligence. The licence was refused. The Licensing Court upheld the refusal. The validity of s 28A was challenged on the basis that it impermissibly interfered with the exercise of judicial power of the Commonwealth by the Licensing Court and the Supreme Court by directing them to deny procedural fairness to the applicant in a manner that substantially impaired the institutional integrity and impartiality of those courts. 201 It was held that s 28A was valid. In his decision French CJ observed at [88] (references omitted): There is, consistently with the constitutional scheme for the exercise of the judicial power of the Commonwealth, a degree of institutional and procedural flexibility on the part of the parliaments of the States, which may travel beyond the limits permissible in federal courts created by the Parliament. That flexibility does not extend to conferring powers on State courts which are "repugnant to or incompatible with the exercise of the judicial power of the Commonwealth". Incompatibility with institutional integrity may exist where a power or function conferred upon a court is "apt or likely ... to undermine public confidence in the courts exercising that power or function". 202 His Honour referred to Forge and the identification there of the Kable principle as one which: [H]inges upon maintenance of the defining characteristics of a 'court', or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to 'institutional integrity' alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies. 203 At [91]-[93] French CJ referred to the similarities with Gypsy Jokers. At [98] his Honour found that the terms of s 28A(5) did not subject the Licensing Court or the Supreme Court to the direction of the executive or an administrative authority. At [99] French CJ held: Section 28A(5) does not undermine the institutional integrity of either court. It does not render them unfit repositories for the exercise of federal jurisdiction. 204 At [149] Gummow, Hayne, Crennan and Kiefel JJ found that s 28A(5) did not operate to deny to the Licensing Court the constitutional character of an independent and impartial tribunal in the sense considered in North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146. At [153] their Honours observed that: [C]onsistently with Ch III, the States may not establish a "court of a State" within the constitutional description and deprive it, whether when established or subsequently, of those minimum characteristics of the institutional independence and impartiality identified in the decisions of this Court. International Finance

205 In International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 the High Court (French CJ, Gummow, Heydon and Bell JJ, Hayne, Crennan and Kiefel JJ dissenting) held that s 10 of the Criminal Assets Recovery Act 1990 (NSW) was invalid.

206 Section 10 empowered the NSW Crime Commission to apply to the Supreme Court for a restraining order in respect of the property of a person suspected of having committed a serious offence. The appellant challenged the validity of s 10 on the basis that it required the Supreme Court to make a restraining order without notice to the persons affected. 207 French CJ expressed his view of s 10 as follows: [54] Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it.

[55] To require a court, as s 10 does, not only to receive an ex parte application, but also to hear and determine it ex parte, if the Executive so desires, is to direct the court as to the manner in which it exercises its jurisdiction and in so doing to deprive the court of an important characteristic of judicial power. That is the power to ensure, so far as practicable, fairness between the parties….

[56] In my opinion the power conferred on the Commission to choose, in effect, whether to require the Supreme Court of New South Wales to hear and determine an application for a restraining order without notice to the party affected is incompatible with the judicial function of that Court. It deprives the Court of the power to determine whether procedural fairness, judged by reference to practical considerations of the kind usually relevant to applications for interlocutory freezing orders, requires that notice be given to the party affected before an order is made. It deprives the Court of an essential incident of the judicial function. In that way, directing the Court as to the manner of the exercise of its jurisdiction, it distorts the institutional integrity of the Court and affects its capacity as a repository of federal jurisdiction. 208 Gummow and Bell JJ found that: [97] The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity.

[98] Section 10 engages the Supreme Court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia. Principles to be drawn from authorities 209 The principles that may relevantly be drawn from the foregoing cases are as follows: (i) the legislature cannot make a law 'which requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power': Lim at 27; (ii) a State court when it exercises federal jurisdiction invested under s 77(iii) is not a court different from the court that exercises the judicial power of the State…. Under the Constitution, therefore, the State courts have a status and a role that extends beyond their status and role as part of the State judicial systems. They are part of an integrated system of State and federal courts and organs for the exercise of federal judicial power as well as State judicial power…. It is axiomatic that neither the Commonwealth nor a State can legislate in a way that might alter or undermine the constitutional scheme set up by Ch III of the Constitution…. Because the State courts are an integral and equal part of the judicial system set up by Ch III, it also follows that no State or federal parliament can legislate in a way that might undermine the role of those courts as repositories of federal judicial power: Kable per McHugh J at 114-116; (iii) neither the Parliament of New South Wales nor the Parliament of the Commonwealth could 'legislate in a way that permits the Supreme Court while exercising federal judicial power to disregard the rules of natural justice or to exercise legislative or executive power': Kable at 116 per McHugh J; (iv) however for State courts, there is 'a degree of institutional and procedural flexibility…which may travel beyond the limits permissible in federal courts': K-Generation at [88] per French CJ. Further, State legislation that requires State courts to act in ways inconsistent with the traditional judicial process will be invalid only when it leads to the conclusion that reasonable persons might think that the legislation compromises the capacity of State courts to administer invested federal jurisdiction impartially according to federal law: Fardon at [42] per McHugh J; (v) the Kable principle, as developed by the later cases hinges upon maintenance of the defining characteristics of a 'court', or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to 'institutional integrity' alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies: Forge at [63] per Gummow, Hayne and Crennan JJ; (vi) 'institutional integrity' would include the notion of an 'independent and impartial tribunal' ( Bradley at [29]) and a court being in a position to operate free of 'external control' ( Gypsy Jokers at [10]). It would also include the notion of courts being able to undertake a 'genuine adjudicative process' and not acting as the 'alter ego of the legislature or the executive': ( Fardon at [219]); (vii) the unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion: Nicholas at 187 per Brennan CJ quoting Mason, Murphy, Brennan and Deane JJ in Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570; (viii) the adjudgment and punishment of criminal guilt is essentially and exclusively judicial in character: Lim at 27; (ix) essential to the administration of the common law system of adversarial trial is the conduct of trial by an independent and impartial tribunal: Forge at [64] per Gummow, Hayne and Crennan JJ; (x) the States may not establish a 'court of a State' within the constitutional description and deprive it of those minimum characteristics of the institutional independence and impartiality: K-Generation at [153] per Gummow, Hayne, Crennan and Kiefel JJ; (xi) judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the evidence led against them (but see Gypsy Jokers and K-Generation ). It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case: Bass at 359; (xii) a law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid: Lim at 36-37; Nicholas at [20]; (xiii) procedural fairness or natural justice lies at the heart of the judicial function…It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it: International Finance Trust Company at [54] per French CJ; (xiv) types of State laws that would not infringe upon institutional integrity include laws that would alter the burden of proof ( Melbourne Harbour Trust; Williamson; Milicevic esp. at 318-319 per Mason J ; Nicholas at 190 per Brennan CJ and at 153-154 per Gummow J; Fardon at [41-[42] per McHugh J) or rules of evidence and procedure, even though repugnant to the traditional judicial process ( Fardon at [41]-[42]). However, it is possible to imagine changes to evidence or procedure which would be so radical and so pointed in their application to identified or identifiable cases then pending in the courts that they could be seen, in substance, to deal with ultimate issues of guilt or innocence: Nicholas at 278 per Hayne J. The scheme of s 26

210 The constitutional validity of s 26 of the OHS Act 2000 needs to be considered in the light of the authorities referred to above and the principles to be derived from those authorities. First, however, the scheme of s 26 needs to be understood and this involves a matter of statutory construction. 211 The section provides that where a corporation contravenes a provision of the Act or regulations, the directors and persons concerned in the management of the corporation are taken to have contravened the same provision unless the court is satisfied that one of the defences in s 26(1)(a) or (b) is made out. (See [15] for the terms of s 26). 212 Section 26 is to be found in a statute that imposes absolute liability on a corporation for contravention of the general duties prescribed by the statute (there is nothing in Kirk to suggest that contravention of a general duty under the OHS Act 2000 is anything other than an absolute liability offence. Indeed, that appears to be confirmed: see [10]). 213 The statute is concerned with regulatory or 'quasi-criminal' offences, which may be distinguished from 'true' criminal offences. In He Kaw Teh v The Queen the High Court recognised this distinction: Gibbs CJ at 533; Dawson J at 595. 214 Gibbs CJ in He Kaw Teh referred to the 'important judgment' in R v Sault Ste-Marie [1978] 2 SCR 1299, where the Supreme Court of Canada defined the three types of criminal offences that existed in Canadian criminal law: 1. offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence; 2. offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care; 3. offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. True crimes were regarded as offences that required some positive state of mind (mens rea) as an element of the crime. Regulatory offences fell into the second and third categories. 215 In R v Wholesale Travel Group Inc [1991] 3 SCR 154 Cory J explained the rationale for the distinction between true criminal offences and regulatory offences: It has always been thought that there is a rational basis for distinguishing between crimes and regulatory offences. Acts or actions are criminal when they constitute conduct that is, in itself, so abhorrent to the basic values of human society that it ought to be prohibited completely. Murder, sexual assault, fraud, robbery and theft are all so repugnant to society that they are universally recognized as crimes. At the same time, some conduct is prohibited, not because it is inherently wrongful, but because unregulated activity would result in dangerous conditions being imposed upon members of society, especially those who are particularly vulnerable.

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.

That is the theory but, like all theories, its application is difficult. For example, is the single mother who steals a loaf of bread to sustain her family more blameworthy than the employer who, through negligence, breaches regulations and thereby exposes his employees to dangerous working conditions, or the manufacturer who, as a result of negligence, sells dangerous products or pollutes the air and waters by its plant? At this stage it is sufficient to bear in mind that those who breach regulations may inflict serious harm on large segments of society. Therefore, the characterization of an offence as regulatory should not be thought to make light of either the potential harm to the vulnerable or the responsibility of those subject to regulation to ensure that the proscribed harm does not occur. It should also be remembered that, as social values change, the degree of moral blameworthiness attaching to certain conduct may change as well.

Nevertheless there remains, in my view, a sound basis for distinguishing between regulatory and criminal offences. The distinction has concrete theoretical and practical underpinnings and has proven to be a necessary and workable concept in our law. Since Sault Ste. Marie , this Court has reaffirmed the distinction. Most recently, in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) , 1990 CanLII 135 (S.C.C.), [1990] 1 S.C.R. 425, at pp. 510-11, Justice La Forest adopted the following statement of the Law Reform Commission of Canada ( Criminal Responsibility for Group Action , Working Paper 16, 1976, at p. 12): [The regulatory offence] is not primarily concerned with values, but with results. While values necessarily underlie all legal prescriptions, the regulatory offence really gives expression to the view that it is expedient for the protection of society and for the orderly use and sharing of society's resources that people act in a prescribed manner in prescribed situations, or that people take prescribed standards of care to avoid risks of injury. The object is to induce compliance with rules for the overall benefit of society. 216 See also: 'Strict and Absolute Liability Offences', Standing Committee on Legal Affairs Parliament of the Commonwealth of Australia, February 2008, Report No 7; Hall, Andy; Johnstone. Richard --- "Exploring The Re-Criminalising of OHS Breaches in the Context of Industrial Death" (2005) 8(1) Flinders Journal of Law Reform 57; Robinson v Woolworths Ltd [2005] NSWCCA 426 at [31]; NSWLRC Report 102 (2003) - Sentencing: Corporate offenders 217 The OHS Act 2000 does not rely on the identification doctrine, laid down in Tesco v Nattrass [1972] 2 WLR 1166, to impose liability on the corporation in relation to general duties under the statute, but rather imposes direct 'personal' liability on the corporation. As it was explained in their Paper, 'Reflections on Reforms: Developing Criminal Accountability for Industrial Deaths' (National Research Centre for Occupational Health and Safety Working Paper 33, April 2004), Hall, Johnstone and Ridgway stated (references omitted): The duty is absolute, personal and non-delegable, and the effect is that the organisation is liable for any acts or omissions of those who are in a relationship to it (its workers, subcontractors etc.) that breach OHS statutory duties subject only to the defence that it did all that was 'practicable' or 'reasonably practicable' to prevent the commission of the offence. So when the duties under the various OHS statutes are breached, whether or not this results in harm, there is no need to try and attribute to the organisation another's guilty mind or mens rea. The identification doctrine does not apply to OHS statutes. The offence is personal to the organisation and requires no measure of mens rea….

We refer also to R v British Steel plc [1995] 1 WLR 1356, which stands for the proposition that the Tesco identification principle does not apply to absolute liability occupational health and safety general duty offences under the Health and Safety at Work Act 1974 (UK). There is no reason to believe that a different approach should be taken in relation to the OHS Act 2000: See Cahill v State of NSW (Dept of Community Services) (No 3) [2008] NSWIRComm 123; (2008) 182 IR 124. 218 Nevertheless, the legislation appears to proceed on the basis that behind a corporation is a 'controlling mind' (directors and persons concerned in the management) and that the corporation 'must act through living persons' who should not escape liability for the contravention by the corporation unless it could be shown that these individuals were not in a position to influence the conduct of the corporation in relation to its contravention, or that these individuals, being in such a position, used all due diligence to prevent the contravention by the corporation: see Morrison v Powercoal at [170]. 219 The effect of s 26(1) is to reverse the onus of proof which would otherwise rest upon the prosecution of proving that a defendant who is a director of the corporation, and each person concerned in the management of the corporation was in a position to influence the conduct of the corporation in relation to its contravention of the provision, or the defendant, being in such a position, did not use all due diligence to prevent the contravention by the corporation: see Hookham at 458-459. The onus on the defendant is a civil onus. 220 Reversal of the onus of proof is commonly found in respect of regulatory offences: see for example, s 188 of the Corporations Act 2001 (Cth); s 169 of the Protection of the Environment Operations Act 1997 (NSW); s 66B of the Environment Protection Act 1970 (Vic); s 167 of the Workplace Health and Safety Act 1995 (Qld); s 12 of the Dangerous Goods (Road and Rail Transport) Act 2008 (NSW); s 90(3) of the Fair Trading Act 1987 (SA); and s 58 of the Animal Research Act 1985 (NSW). 221 The rationale for the reversal of the onus lies in the notion that in certain circumstances it will be the defendant 'whose knowledge of the true facts is necessarily greater than that of anyone else' and that otherwise, justice might easily be defeated: Melbourne Harbour Trust at 17 per Isaacs J. Additionally, as it was stated in R v Davies at [25] and [30] in relation to s 40 of the Health and Safety at Work Act 1974 (UK): The reversal of the burden of proof takes into account the fact that duty holders are persons who have chosen to engage in work or commercial activity (probably for gain) and are in charge of it. They are not therefore unengaged or disinterested members of the public and in choosing to operate in a regulated sphere of activity they must be taken to have accepted the regulatory controls that go with it. This regulatory regime imposes a continuing duty to ensure a state of affairs, a safety standard. Where the enforcing authority can show that this has not been achieved it is not unjustifiable or unfair to ask the duty holder who has either created or is in control of the risk to show that it was not reasonably practicable for him to have done more than he did to prevent or avoid it.

In complicated, and therefore potentially the most serious, cases the prosecution might face considerable difficulties in assuming this burden of proof where the only relevant expertise was with the defendant or even its state of the art supplier or licensor abroad. In such cases therefore enforcement might become impossible if the defendant only had an evidential burden.

See also R v Chargot at [27]-[31] and the Canadian case, R v Wholesale Travel Group Inc , referred to earlier. 222 Section 26 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 s 8(1) of the Act). However, that does not suggest that s 26 is not necessary. Section 26 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: Inspector Jorgensen v Daoud [2005] NSWIRComm 135; (2005) 143 IR 170 at [25]-[30]. 223 The defence in s 26(1)(a) requires a defendant to prove, on the balance of probabilities, that he or she was not in a position to influence the conduct of the corporation in relation to its contravention. Here we are concerned with directors of a corporation. Whether the directors, or either one of them, were in a position to influence the conduct of the corporation would be a question of fact, which we are not required to answer in these proceedings. Similarly, we are not required to determine whether the defendants exercised all due diligence: s 26(1)(b). We note there is consideration of the nature of these defences in Inspector Ken Kumar v David Aylmer Ritchie [2006] NSWIRComm 323. 224 The defences, of course, do not arise unless and until it has been proven beyond reasonable doubt that the corporation contravened any provision of the Act or regulations, that being an essential element of an offence under s 8(1) by operation of s 26. Section 26(2) makes it clear that there may be a conviction under s 26(1), whether or not the corporation has been proceeded against or convicted. Section 26(3) also emphasises the extent to which s 26(1) operates independently of any relevant criminal proceedings involving the corporation. In T & M Industries (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Sequeira) [2006] NSWIRComm 25; (2006) 151 IR 130 the Full Bench considered the effect of s 26(3) at [28]-[29]: [28] Although the syntax of sub-section (3) is somewhat awkward, it does suggest the following scenarios: it appears that a director may be found guilty of an offence under s 26(1), and yet, in separate criminal proceedings, the corporation may be acquitted of the underlying offence. On the other hand, it is conceivable that, notwithstanding a conviction against a corporation, the director may be acquitted in separate proceedings on the basis that one of the essential elements - the contravention by the corporation - has not been proven beyond reasonable doubt. Although such cases would be highly unusual (and extremely unlikely to occur in practice), it seems to us that sub-section (3) admits these possibilities. This reinforces our preliminary view that in appellate proceedings against a conviction under s 26(1), the contravention by the corporation is open to challenge on the ordinary principles governing appeals - as is any essential element - regardless of the status of the corporation or any proceedings against it.

[29] Contrary to the respondent's submissions, WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd (2000) 102 IR 40 does not stand in the way of this preliminary view. If anything, it supports it. In determining whether a certificate of conviction was admissible pursuant to s 178 of the Evidence Act 1995, the Full Bench held that the fact of a conviction of a corporation is not a fact in issue in separate proceedings against a director or manager of the corporation under s 50 of the 1983 Act (which is equivalent to s 26 of the 2000 Act for the purpose of this discussion). Rather, the essential element of the offence was the contravention of the Act by the corporation not the conviction of the corporation. 225 In relation to s 26(4), as an indicator of the width of the section itself, we note what was said by Haylen J in Ken Kumar at [167]: [167] In one respect the defendant's submissions, in effect, pose a test not apparent from the provisions of s 26. The defendant argues that the section could not have contemplated catching all directors because it had to be accepted that all directors had, to an extent, a capacity to influence the conduct of a corporation - that was at the very centre of the role of a director. This was said to be reinforced by the fact that to take this approach would treat directors differently to persons who were concerned in the management of the corporation. The assumed answer to this dilemma is that the section therefore only applies to directors and persons who are concerned in the management of a corporation, who are hands-on players in the formulation, application and enforcement of the corporation's safety policies and systems. I can find no warrant in the terms of s 26 to approach it in this limited way as suggested by the defendant. Indeed, the width of s 26 is indicated by the fact that sub-section 4 was regarded as being necessary (as it was in the 1983 legislation), to specifically exempt members of a local council in that role so as to ensure that they were not caught by the provision: if it were not for such a specific exemption there was a likelihood that the section would reach that far and that is an indication of the intended width of the section.

226 We turn to Mr Chevalley's 14 grounds upon which he relies for the proposition that s 26 is constitutionally invalid. We note, in particular, his reliance on the cumulative effect of these 14 grounds. 227 The first ground is that s 26 proceeds on the basis that there is no presumption of innocence. 228 In relation to the absence of the presumption of innocence, Mr Chevalley relies on R v Momcilovic [2010] VSCA 50; (2010) 265 ALR 751;. The Victorian legislature has enshrined various common law principles in the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Charter provides that Victorian courts may make a declaration that a legislative provision is incompatible with a section of the Charter. In Momcilovic, the Court considered s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which imposes an onus on defendants to prove lack of knowledge of the presence of drugs in their possession. The Court made a declaration that the provision was incompatible with s 25 of the Charter, which provides that '[q] person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law.' 229 The New South Wales legislature has not enacted legislation akin to the Charter and we agree with the Attorney that Momcilovic is not relevant to the interpretation of s 26. The Attorney referred to R v Granger [2004] SASC 156; (2004) 88 SASR 453. In that case the South Australian Court of Appeal upheld the validity of a law (s 32(3) of the Controlled Substances Act 1984 (SA)) which provided that a person found in possession of more than 100gms of a prohibited substance in his or her possession will, in the absence of proof to the contrary, be presumed to have that substance in his or her possession for the purpose of sale or supply. The provision, accordingly, reversed the criminal onus of proof in relation to a key element of the supply offence. The accused challenged s 32(3), contending that it conferred on the District Court a function incompatible with the exercise of the judicial power of the Commonwealth. The Court of Appeal rejected the challenge and upheld the validity of s 32(3) (at [50] per Doyle CJ (Mullighan and Perry JJA agreeing)). The Court of Appeal applied the decisions of Nicholas and Milicevic. 230 At [48]-[50] and [54]-[57] Doyle CJ stated: [48] It is relevant, as Gummow J said in Nicholas , that there is a lengthy history of Commonwealth and State legislation casting on an accused person the burden of proof in relation to an element or elements of serious criminal offences. There can be no doubt that, within limits, the Commonwealth Parliament can enact laws affecting the practice and procedure of courts trying criminal cases, and affecting the application of the rules of evidence….

[49] I return to s 32(3) of the CSA. The presumption that it creates is rebuttable. It does not deem the purpose in question to be proved. It remains for the trier of fact, bearing in mind the presumption, to decide whether the accused has the drug or substance in his possession for the purpose of sale or supply. The trier of fact is at liberty to take into account all relevant material in deciding that question. The presumption is one of a kind that is well known in the criminal law, although that is not decisive. It is a presumption of a general kind that has been accepted as valid in decisions of the High Court, although the validity of such a presumption has also been accepted in general terms, and with the cautionary note that the operation of the presumption must be considered.

[50] In these circumstances I do not accept that s 32(3) of the CSA usurps the judicial function. The determination of guilt, as a matter of form and as a matter of substance, is left to the court. It cannot be said that the court has been made the instrument of Parliament for the purpose of recording a verdict of guilt determined by Parliament, or an instrument of the executive government through the prosecutor. Nor do I consider that the legislation can be regarded as an impermissible interference with or infringement of judicial power. The reasons for so concluding are the same.

[54] The presumption of innocence, and the principle that an accused person must have the benefit of a reasonable doubt, are important and valuable features of our system of criminal law. But at this stage it cannot be said that the presumption of innocence in respect of every element of an offence is an essential element of a fair trial. There is nothing in Dietrich v The Queen [1992] HCA 57; (1997) 177 CLR 292 to the contrary. It is not open to this Court to hold that it is incompatible with a fair trial to deprive an accused of the benefit of a reasonable doubt, and of the benefit of the presumption of innocence, in respect of an element or elements of an offence.

[55] As I have already said, decisions in the United Kingdom, Canada and Hong Kong on which Mr Schapel relied are explicable on the basis that they reflect the presence of a constitutionally entrenched right to a fair trial or a constitutionally entrenched presumption of innocence.

[56] It should also be remembered that it is for Parliament to create offences and to define their elements. Many offences of strict liability have been created. It must also be within the power of Parliament to create offences that have no, or a limited, mental element. Bearing that in mind, one must be cautious before holding that creating a presumption in aid of proof of the mental element of an offence is beyond power. Parliament might achieve much the same result, or a more stringent one, by re-defining the elements of the offence in question to eliminate the mental element.

[57] For those reasons I conclude that s 32(3) of the CSA would be valid if it were a law of the Commonwealth. I have considered separately whether s 32(3) offends against the principle stated in Kable . In my opinion it does not. There is nothing in s 32(3) that requires a court to act in a manner inconsistent with the requirement of independence, impartiality and fairness that are essential to the exercise of judicial power.

231 As the Attorney submitted: The accused in Granger sought Special Leave, contending before Gummow, Kirby and Heydon JJ that the case concerned the extent to which the presumption of innocence can be abrogated by a State legislature and whether persons may be convicted of a criminal offence in spite of the existence of a reasonable doubt. The application for special leave was rejected, Gummow J observing that the State legislation under challenge did not have the ' radical quality identified by Justice Hayne [in Nicholas ] and there are absent the necessary prospects of success of an appeal to warrant a grant of leave on that ground of alleged invalidity': Granger v The Queen [2004] HCATrans 478. 232 We note the reference by Doyle CJ to the defendant's reliance on decisions in the United Kingdom, Canada and Hong Kong. Doyle CJ distinguished these cases on the basis that they reflected the presence of a constitutionally entrenched right to a fair trial or a constitutionally entrenched presumption of innocence. Nevertheless, there are English and Canadian cases that provide assistance in these proceedings. 233 In R v Davies the Court of Appeal (Criminal Division) considered whether a reverse burden of proof provision in s 40 of the Health and Safety at Work Act 1974 (UK) was compatible with the presumption of innocence enshrined in Article 6(2) of the European Convention on Human Rights. Section 40 imposed a legal rather than an evidential burden of proof on a defendant that it was not reasonably practicable for the defendant to have done more than the defendant had, on the facts of the case, to have satisfied the defendant's duty to protect the health and safety of the defendant's employees. 234 At [10] Tuckey LJ (Douglas, Brown and Gordon JJ agreeing) observed: The concern is not that the defendant must disprove an element of the offence, but that he may be convicted while a reasonable doubt exists. In other words in this case the jury might not have been sure that it was reasonably practicable for the appellant to do more, but convicted him because he had not satisfied them that he could not have done more. It is therefore for the State to justify such an inroad into the presumption of innocence which should not be greater than is necessary, justified and proportionate. The court has to consider whether a fair balance has been struck between the fundamental right of the individual and the general interests of the community, paying due regard to the choice which the legislature has made when striking that balance, particularly where social or economic policy is involved. 235 Tuckey LJ considered a number of points about the legislation. The first was that the legislation was regulatory rather than prescriptive. This was important in the balancing exercise, Tuckey LJ said. His Honour referred with approval to the distinction between truly criminal and regulatory offences spelt out by Cory J in R v Wholesale Travel Group, noting in particular what Cory J said about imposing an onus on a defendant in the case of regulatory offences: 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 conviction will lie if the accused has failed to meet the standard of care required. Thus the question is not whether the accused has exercised 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 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. 236 The next point referred to by Tuckey LJ was that an offender did not face the risk of imprisonment for the offences in question. This was, according to his Honour, an important factor in deciding whether Parliament has struck the right balance in this legislation. However, we note that the accused in R v Granger (where there was no question of a human rights charter) was liable to a penalty not exceeding a fine of $500,000 or imprisonment for a period not exceeding 25 years, or both. 237 Further, in R v Wholesale Travel Group the company was charged with five counts of false or misleading advertising contrary to the federal Competition Act R.S.C 1970. The charge was an offence that could be either an indictment consisting of a fine and prison term under five years, or a summary conviction consisting of a fine and a prison term under a year. The statute provided for a defence, which was to be established by the accused (s. 37.3(2)), included essentially the defence of due diligence (s 37.3(2)(a) and (b)) coupled with the requirement of a timely retraction (s 37.3(2)(c) and (d)). The issue before the Supreme Court was whether s 37.3(2) of the Competition Act violated s 7 of the Canadian Charter of Human Rights. It was held by a majority (5:4) that the reversal of the onus of proof was constitutionally justifiable. 238 Lamer CJ (with whom Sopinka J agreed) expressed the following view about the use of imprisonment to enforce the prohibition of certain behaviour or activity: A person whose liberty has been restricted by way of imprisonment has lost no less liberty because he or she is being punished for the commission of a regulatory offence as opposed to a criminal offence. Jail is jail, whatever the reason for it. In my view, it is the fact that the state has resorted to the restriction of liberty through imprisonment for enforcement purposes which is determinative of the principles of fundamental justice. I cannot agree that these principles take on a different meaning simply because the offence can be labelled as "regulatory". Indeed, while I agree that this offence can be characterized as "regulatory", the label loses much of its relevance when one considers that an accused faces up to five years' imprisonment upon conviction. 239 Cory J (with whom L'Heureux Dubé J agreed) took a different view. He explained why a different content should be ascribed to the presumption of innocence in the regulatory context: The reasons for ascribing a different content to the presumption of innocence in the regulatory context are persuasive and compelling. As with the mens rea issue, if regulatory mechanisms are to operate effectively, the Crown cannot be required to disprove due diligence beyond a reasonable doubt. Such a requirement would make it virtually impossible for the Crown to prove regulatory offences and would effectively prevent governments from seeking to implement public policy through regulatory means.

It has been suggested that requiring the Crown to prove negligence beyond a reasonable doubt, either as part of its case or after the accused adduces some evidence raising a reasonable doubt as to due diligence, would represent an acceptable compromise: it would, it is said lessen the burden on the accused while still allowing for the effective pursuit of the regulatory objective. I cannot accept this contention. While such an approach would undoubtedly be beneficial to the accused, it would effectively eviscerate the regulatory power of government by rendering the enforcement of regulatory offences impossible in practical terms. Under this approach, the Crown would be forced to prove lack of reasonable care where the accused raises a reasonable doubt as to the possibility of due diligence.

It is difficult to conceive of a situation in which a regulated accused would not be able to adduce some evidence giving rise to the possibility that due diligence was exercised. For instance, an environmental polluter would often be able to point to some measures it had adopted in order to prevent the type of harm which ultimately resulted. This might raise a reasonable doubt that it had acted with due diligence no matter how inadequate those measures were for the control of a dangerous situation. Similarly, a wholly inadequate effort to ensure that an advertisement was true might nevertheless succeed in raising a reasonable doubt as to due diligence.

To impose such a limited onus is inappropriate and insufficient in the regulatory context. 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 exercised some care, but whether the degree of care exercised was sufficient to meet the standard imposed. If the false advertiser, the corporate polluter and the 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.

It must not be forgotten that the virtual impossibility of proving regulatory offences beyond a reasonable doubt was central to this Court's decision in Sault Ste. Marie . This consideration led the Court to conclude that the imposition of strict liability with a defence of due diligence available to the accused was both necessary and appropriate. 240 Under the heading 'The Imprisonment Concern' his Honour stated: The Charter does not guarantee an absolute right to liberty; rather, it guarantees the right not to be deprived of liberty except in accordance with the principles of fundamental justice. Thus, while the availability of imprisonment undoubtedly triggers Charter review, it does not resolve the ultimate question. What must be determined is whether, in a given case, the possibility of a sentence of imprisonment comports with the principles of fundamental justice. It is whether the principles of fundamental justice have been violated, not the availability of imprisonment, which is the determinative consideration.

Regulatory schemes can only be effective if they provide for significant penalties in the event of their breach. Indeed, although it may be rare that imprisonment is sought, it must be available as a sanction if there is to be effective enforcement of the regulatory measure. Nor is the imposition of imprisonment unreasonable in light of the danger that can accrue to the public from breaches of regulatory statutes. The spectre of tragedy evoked by such names as Thalidomide, Bhopal, Chernobyl and the Exxon Valdez can leave no doubt as to the potential human and environmental devastation which can result from the violation of regulatory measures. Strong sanctions including imprisonment are vital to the prevention of similar catastrophes. The potential for serious harm flowing from the breach of regulatory measures is too great for it to be said that imprisonment can never be imposed as a sanction.

I would only add that, in those circumstances where the imposition of imprisonment would be grossly disproportionate to the offence committed, the accused person would have a compelling claim under s. 12 of the Charter . However, the fact that it is possible to imagine instances where the use of imprisonment would be inappropriate should not be used to justify the conclusion that imprisonment can never be imposed in respect of strict liability offences. Imprisonment must be available to governments as a sanction if the power to regulate is to be effective. 241 Cory J referred to the American approach to regulatory offences and imprisonment: The conclusion that strict liability does not violate either s. 7 or s. 11( d ) of the Charter is supported by the American approach to regulatory offences. Generally speaking, American courts have not recognized an intermediate category of strict liability. Rather, the U.S. Supreme Court has held that, where the person charged is aware of the regulated nature of the impugned conduct, it is constitutionally permissible to enact absolute liability offences, even where imprisonment is available as a penalty: see, for example, United States v. Balint , 258 U.S. 250 (1922); United States v. Dotterweich , 320 U.S. 277 (1943); Morissette v. United States , supra ; Lambert v. California , supra . Furthermore, even in the case of serious criminal offences, it has been held that placing a persuasive burden on the accused to establish a defence does not violate the presumption of innocence: see Patterson v. New York , 432 U.S. 197 (1977); Martin v. Ohio , 480 U.S. 228 (1987). The constitutional validity of regulatory legislation which imposes strict liability would, under the American approach, seem to be beyond question. 242 Iacobucci J with whom Gonthier and Stevenson JJ agreed, stated: As noted by Cory J. in his reasons, regulated activity and public welfare offences are a fundamental part of Canadian society. Those who choose to participate in regulated activities must be taken to have accepted the consequential responsibilities and their penal enforcement. One of these consequences is that they should be held responsible for the harm that may result from their lack of due diligence. Unless they can prove on a balance of probabilities that they exercised due diligence, they shall be convicted and in some cases face a possible prison term. These participants are in the best position to prove due diligence since they possess in most cases the required information. Viewed in this context, and taking into account the fundamental importance of the legislative objective as stated and the fact that the means chosen impair the right guaranteed by s. 11( d ) as little as is reasonably possible, the effects of the reverse onus on the presumption of innocence are proportional to the objective.

243 We refer also to the decision of Boland J in Cahill (No 3) at [241]-[251] where his Honour considered, inter alia, the implications of imprisonment for offences categorised as absolute liability offences and the view taken by the Judicial Committee in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] 1 AC 1. Although the maximum penalties for the offences under s 40 of the Buildings Ordinance (Laws of Hong Kong, 1981 rev., c. 123) were 'heavy' (a fine of $250,000 and imprisonment for three years) the safety laws were held to be appropriately regarded as absolute liability offences and the requirement for mens rea had been displaced. It is of some relevance to note that by operation of s 12 of the OHS Act, the option of two years' imprisonment of a director or person concerned in the management of the corporation only arises where the individual has been a previous offender; such an individual shall be open to a fine, imprisonment or both. 244 Returning to the decision in R v Davies, another relevant point made by Tuckey LJ concerned the power of inspectors and the contention for the defendant that as the powers of inspectors were very wide, the prosecuting authority would have the capacity to acquire all information before any decision to prosecute is made including information about when and what steps had been taken by the defendant, thereby making a reverse onus unnecessary. 245 In responding to these propositions, Tuckey LJ stated at [22]: But this may not be so, even in simple cases, because in practice the authority will have been reliant to a large extent on what information the defendant chooses to provide. It will almost certainly not be so in more complex case (sic) where the activity in question of the duty holder involves state of the art technology or highly sophisticated and complicated processes. Here in reality the defendant will be and remain the only person who really knows when and what he has done to avoid the risk in question. 246 We conclude that the effect of reversing the onus of proof on the presumption of innocence does not invalidate s 26 of the OHS Act 2000. We are not here concerned with any conflict with a charter of human rights, but rather a regulatory offence that the parliament has decided should provide for significant penalties in the event of its breach. As Cory J observed in Wholesale Travel Group, '[I]f 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.' There is no logical reason to distinguish employers and others charged with the responsibility for ensuring occupational health and safety in circumstances where workers may be killed or maimed for life. 247 Section 26 presumes the defendant is guilty of the same contravention as that committed by the corporation. Of course, before the presumption operates, the corporation must have been found guilty of the contravention. That is to say, the prosecution must firstly prove the corporation guilty beyond reasonable doubt. The presumption is rebuttable. It does not deem the contravention of the director or person concerned in the management to be proved. Furthermore: (i) there is a 'lengthy history' of Commonwealth laws creating criminal offences which reverse the traditional onus of proof: Nicholas at [152]; (ii) section 26 does not usurp or infringe on the judicial function. The court is not acting as an instrument of the legislature; it is entirely a matter for the court to determine the facts and to determine guilt or otherwise; and (iii) section 26 does not require the court to act other than impartially not does it impact on the court's independence. The section does not direct the court as to the manner in which it must decide the case; (iv) importantly s 26 contains essentially evidentiary provisions and it does not determine whether a charge of an offence against the Act will succeed or fail. The section does not deal with the ultimate issues of guilt or innocence; (v) in applying s 26, the Court undertakes a genuine adjudicative process. 248 We respectfully agree with Doyle CJ in R v Granger where he stated at [53]: But, in view of the practices of Australian Parliaments, and the procedures of Australian courts, it is going too far to say that the trial ceases to be fair for relevant purposes, or to be conducted in accordance with accepted principles of the judicial process, if the prosecution is able to call in aid a rebuttable presumption that will establish a significant element or elements of an offence, unless the accused person displaces that presumption on the balance of probabilities. 249 Mr Thangaraj sought to distinguish R v Granger. He submitted: The Crown relies on the case of Granger and pointed out special leave was refused. Granger was a case of deemed supply. Deemed supply is very different and incomparable to the current charge - s8, s26. In a deemed supply charge the Crown has to proved beyond reasonable doubt that the defendant knew that he was possessing illegal drugs. All of the deemed supply provisions say if it's over a particular quantity it's deemed to be for the purpose of supply and therefore you are exposed to a more serious penalty. Deemed supply is not a case where the Crown does not have to prove anything in relation to an offender. 250 We understand the point counsel was seeking to make, was that in R v Granger the prosecution was still required to prove mens rea beyond reasonable doubt, that is, the Crown had to prove the person knowingly had in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance. The onus was on the defendant to then prove he or she did not have the drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person. It was submitted this was not the case in respect of s 26. 251 As we have sought to explain, there are, as Cory J identified in Wholesale Travel Group, 'persuasive and compelling' reasons why in a regulatory context, which is what we are concerned with in this case, the Crown cannot be required to prove mens rea or, for that matter, actus reus. The Crown is, however, required under s 26 to prove beyond reasonable doubt that the corporation contravened the relevant provision before any presumption operates against a director or person concerned in the management of the corporation. The section, read as a whole, makes it apparent that regardless of the status of the corporation or any proceedings against it, in any prosecution under s 26 against a director of the corporation or person concerned in the management of the corporation, the onus falls on the prosecution to prove the contravention: T & M Industries. 252 Mr Chevalley also sought to distinguish Hookham. It was submitted: [A]ll the defendant has to establish [under s 8Y of the Taxation Administration Act] is that he was not involved in… the actual contravention, not a failure to establish a system from which the contravention emanated. So it's far far narrower and it's far more reasonable in 8Y because the defendant can simply prove he wasn't involved in that contravention. 253 It seems to us the distinction is merely a question of form and not substance. Under the provision in Hookham (s 8Y) the onus was on the defendant to prove (a) he or she did not aid, abet, counsel or procure the act or omission of the corporation concerned; and (b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission of the corporation. Under s 26(1)(a) and (b) a defendant is required to prove he or she was not in a position to influence the conduct of the corporation in relation to its contravention, or he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 254 In both cases it is reasonable to assume the legislature reversed the onus because in the circumstances of these two regulatory offences the defendants' 'knowledge of the true facts [would be] necessarily greater than that of anyone else'.

255 We conclude that in light of the authorities, s 26 does not offend the principles enunciated in Kable because of the presumption it contains and it is not 'repugnant in a fundamental degree to the judicial process': International Finance at [98], [103] and [155]-[160].

256 This was the defendant's second point. It was submitted s 26 was invalid because it presumed guilt and removed the capacity of a defendant to run a defence based on any and all available evidence related to the offence. The removal of the Court's capacity to exercise its judicial power to adjudge criminal guilt was distorted, and this was inconsistent with the principles developed by the High Court after its decision in Kable. 257 It was not elaborated upon as to how the court's power to adjudge guilt was distorted because of limits on the defendant's capacity to run a defence. But as we have sought to explain earlier, in proceedings under s 26 against a director or person concerned in management, the onus is on the prosecutor to first establish that the corporation has contravened the Act. No limits are placed upon the director or person concerned in that respect. If the contravention by the corporation is established it then falls to the defendant under s 26 to make out one of the available defences. It is then a matter for the court to determine the facts and to determine guilt or otherwise. 258 Section 26 does not presume guilt in the sense that the court is directed to make a finding of guilt regardless of the facts. Guilt will only be established if: (a) there has been a finding that the corporation has contravened the Act; and (b) the defendant has failed to make out one of the available defences. Conduct of others

259 It was submitted for Mr Chevalley that he was presumed to be guilty, not because of any fault on his part, but because of the conduct of another, namely, the corporation. 260 There is nothing unusual or repugnant to the judicial process, in the context of regulatory offences, in making a director, or person concerned in the management of a corporation, vicariously liable for the acts or omissions of the corporation. The corporation acts through living persons. As we earlier observed, s 26 is the mechanism by which a director or person involved in the management of the corporation is taken to have committed the same offence as the corporation unless one of the defences can be made out, which then relieves the director or manager of liability because it would have been shown the director or manager was not at fault. Reasonable doubt may remain

261 The defendant's proposition here was that a defendant may be convicted even though doubt may remain as to the defendant's guilt. Tuckey LJ recognised this issue in R v Davies at [10] (see [234] above). Confronted with this problem his Lordship said the court had to: [C]onsider whether a fair balance has been struck between the fundamental right of the individual and the general interests of the community, paying due regard to the choice which the legislature has made when striking that balance, particularly where social or economic policy is involved.

The result in R v Davies reflected a view of the Court that in respect of offences under the Health and Safety at Work Act the balance lies in favour of the community. 262 Provisions reversing the onus of proof such as those considered in R v Granger; Hookham; Melbourne Harbour Trust; Williamson v Ah On or any of the other cases referred to by Gummow J in Nicholas in footnote (231) at 235, all give rise to the concern that the defendant must disprove an element of the offence, but that he or she may be convicted while a reasonable doubt exists. There is nothing unique, in this respect, in s 26 placing the legal burden on the defendant. Ultimately, it is for the defendants to discharge this onus but they are only required to do so on the balance of probabilities. It is to be remembered, nevertheless, that in criminal matters where the accused bears the onus to establish a true defence to the charge, that onus is satisfied on the mere balance of probabilities. If that balance is just met, the defence succeeds; if the accused just fails to meet the required onus, the defence will fail. It should not, therefore, be regarded as extraordinary if those possible results arise in relation to defences under s 26 of the OHS Act 2000. Imprisonment

263 We have already largely dealt with the defendant's proposition that because imprisonment is an option in punishment reversing the onus of proof is repugnant to the judicial process. The English and Canadian cases we have referred to considered the question of imprisonment, but it was against a background of human rights enactments. In Wholesale Travel Group, despite the prospect of imprisonment, it was held that the reversal of the onus of proof was constitutionally justifiable. The US cases referred to by Cory J in Wholesale Travel Group held that it was constitutionally permissible to enact absolute liability offences, even where imprisonment was available as a penalty. Imprisonment was an option in R v Granger, yet it was held that placing an onus on the defendant did not offend the Kable principles. 264 We should add that the OHS Act provides for a maximum term of imprisonment of two years and is at the low end of penalties in the criminal calendar. We note what Black CJ said in Chief of the General Staff v Stuart (1995) 58 FCR 299 at 304: [T]he fact that a penalty of up to six months imprisonment may be imposed for an offence against s 44 seems equivocal as an indication of whether or not the presumption of mens rea has been displaced. On the one hand the maximum penalty is a term of imprisonment but, on the other hand, the maximum penalty of six months imprisonment is at the low end of the scale of maximum penalties of imprisonment provided for by the Act for service offences. 265 The fact that no term of imprisonment has ever been ordered under the OHS Act 2000 or under its predecessor, the 1983 Act, indicates that imprisonment is considered by the Court to be reserved for the most serious of offences and is not appropriate for mere recidivism. Mens rea and actus reus

266 The sixth and seventh points made by Mr Chevalley were that it was irrelevant that the defendant was able to prove an absence of mens rea and actus reus, the defendant could still be convicted. 267 Proof of mens rea and actus reus does not arise. The purpose of s 26 is to make living persons vicariously liable for contraventions by the corporation. The prosecution is put to the task of proving that the corporation contravened a provision of the Act and must discharge that onus by proving the contravention beyond reasonable doubt. Mens rea and actus reus are not concepts applicable to the criminal guilt of corporations. If the contravention is proven against the corporation, directors and persons concerned in the management of the corporation will be taken to have contravened the same provision as the corporation unless they are able to prove, on the balance of probabilities, that one of the defences in s 26(1)(a) or (b) applies. Section 26 does not provide for a separate offence by an individual requiring the presence of mens rea and actus reus to be proven in respect of that individual. 268 The defendant submitted, in effect, that even though he may not have had a guilty mind he could still be found guilty of a criminal offence. What he could be found guilty of under s 26 is an offence by the corporation by virtue of the fact that he failed to prevent the contravention, despite being in a position to do so. When looked at in that light it does not seem to us that the scheme of s 26 is repugnant to the judicial process. Defences provided by s 26 are illusory

269 The submission by Mr Chevalley that the defences under s 26 are illusory appears to rely on the proposition that there is a pre-existing presumption that the defendant has contravened the Act and that whilst there are defences, resort to them by defendants has been largely unsuccessful. Further, that s 26 removed any role for the court in determining whether or not the director or manager was, in fact, complicit in the contravention. 270 The role of the court in relation to s 26 is to determine whether it has been proven beyond reasonable doubt that the corporation has contravened a provision of the Act and, if so, whether a director or manager of the corporation who was in a position to influence the conduct of the corporation in relation to the contravention but failed to do so or, being in such a position, failed to use all due diligence to prevent the contravention by the corporation. 271 A person defending a charge under s 26 may be found to be 'complicit', that is, 'involved with a degree of guilt' (Macquarie Dictionary Online, Macmillan Publishers Australia, 2010), if it is found that the person was in a position to influence the conduct of the corporation in relation to the contravention but failed to do so or, being in such a position, failed to use all due diligence to prevent the contravention by the corporation. It is not, therefore, correct to say the court has no role in determining complicity. 272 In so far as the defences in s 26(1)(a) and (b) are concerned, they are not unique to the section or out of the ordinary; there are a large number of statutes in the Australian States providing for regulatory offences that contain these defences. 273 In relation to the defence in s 26(1)(a), we note what was said by Haylen J in Ritchie at [170]: [170] As already noted, the construction urged by the defendant suggests that this approach could not have been intended by the legislature because, by the very nature of their roles, all directors are capable of influencing the actions of the corporation. In dealing with this argument it is well to remember that the Act imposes a strict or absolute liability on employers in relation to safety at the workplace. It is quite consistent with that approach that where a corporation is the employer that strict liability applies to those who are the operative minds of the corporation, namely the directors. There is nothing incongruous or unlikely about such an approach. The legislature has, however, provided a limited defence by allowing liability to be avoided if the director demonstrates that he or she was not in a position to influence the conduct of the corporation in relation to the contravention or, being in such a position, used all diligence to prevent the contravention by the corporation. Those defences focus upon the contravention and, in a sense, recognise that in the "real world" (so heavily relied upon by the defendant) there may be situations where, for a variety of reasons, a director was not able to influence the conduct of the corporation. Hypothetical examples are of necessity artificial but it is not beyond the realms of possibility that a director may have been in a minority on the Board in urging a more costly but effective system of safety that the other directors were not prepared to adopt or, as suggested by the prosecutor, at the relevant time a director was on leave of absence or suffering some other disability when a particular policy decision was taken and may not have been informed of that decision. Indeed, in Newcastle Wallsend a defence was established where, at the relevant time, the defendant did not hold a position of authority to influence the conduct of the corporation although he did so at another relevant time. Those examples are sufficient to indicate that there is an opportunity for the sub-section (1)(a) defence to be availed of by a director but it is no answer to say that the defences are narrow and limited. Much the same comment might be made in relation to the general defences found in s 28. The limited nature of these defences is understandable having regard to the public purpose served by safety legislation, especially having regard to the objects of the Act set out in s 3, namely, (a) to secure and promote the health, safety and welfare of people at work; (b) to protect people at a place of work against risks to health or safety arising out of the activities of persons as work; (e) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled; (g) to provide a legislative framework that allows for progressively higher standards of occupational health and safety to take account of changes in technology and work practices; and, (h) to protect people (whether or not at a place of work) against risks to health and safety arising from the use of plant that affects public safety. To secure these objectives the legislature has adopted a system of strict or absolute liability of employers and has adopted provisions like s 26 to emphasise responsibility of persons in the corporate structure to ensure the safety of workplaces.

We agree with his Honour's observations. 274 In relation to the due diligence defence in s 26(1)(b), this seems to us to be merely an expression of the common law (which has found its way into many statutes) and involves nothing so onerous as to condemn it as being 'so radical and so pointed' in its application as to be 'repugnant to the traditional judicial process'. 275 As to the utility of the defences from a defendant's point of view, we note in the relatively recent case of Inspector Wayne James v Sunny Ngai [2007] NSWIRComm 203, the defendant directors each established a defence under s 26(1)(a) as each established on the balance of probabilities that he was not in a position to influence the conduct of the corporation in relation to its contravention. More recently, in Inspector James v Ryan [2009] NSWIRComm 215, the prosecution of the director under s 26 failed because the prosecutor failed to establish beyond reasonable doubt that the defendant was a director of the relevant corporation (Ryan is the subject of an appeal). It is also to be observed that the decisions in WorkCover Authority of New South Wales v Seccombe (1998) 43 NSWLR 390; WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd [2000] NSWIRComm 214; (2000) 102 IR 40 and Powercoal provide a number of procedural and evidentiary protections to directors who seek to defend occupational health and safety charges. The right to silence is no right at all

276 It was submitted by counsel for Mr Chevalley that rather than consider whether or not to give evidence, a defendant is almost obliged to give evidence. An exercising of the right to silence will often, if not almost always, result in a conviction. In truth it is not a right at all under s 26. 277 The inevitable consequence of reversing the onus of proof so that a defendant is placed in the position of making out a defence against a presumption means that the defendant will need to make a choice about whether he or she remains silent. Notwithstanding this inevitability, the High Court has accepted that State laws that would not infringe upon the institutional integrity of courts include laws that would alter the burden of proof or rules of evidence and procedure, even though such laws may be repugnant to the traditional judicial process: Fardon at [41]-[42]. Further, while it may be accepted that the direct evidence of the director will probably be the most effective way in which to establish defences, it does not necessarily follow that the personal oral evidence of the director is the only way the defences can be established. A documentary case based on business records may be effective as well as the evidence of others. Ultimately, the director has to decide whether the right to silence is more important than giving him or herself the best opportunity of establishing a total defence to the charge. That is the position that is often faced by an accused in criminal matters where they bear the onus of establishing a defence. Reliance on defence under s 28 not available

278 In this respect, Mr Chevalley submitted: Why should a director not be able to rely upon s 28 as a defence? The deeming provision only applies if the corporation contravened the Act. Why should that element of the offence be immune from challenge? He is alleged to be complicit in the contravention of the corporation, yet he is not entitled to rely upon the statutory defence of that contravention. This situation exists, despite the contravention of the company having to be proven beyond reasonable doubt. It is an element of the offence against the defendant. Yet the Crown can prove this element without being challenged. The Crown could choose not to charge the corporation, yet charge the director and therefore never need to meet the defence in s 28. Further, the provision specifically refers to 'any proceedings' and 'a person'. The use of 'person' indicates that the intention was to allow the provision to be used by a corporate entity and an individual. If the intention was to limit the provision to a company, then the word 'person' would not have been used. 279 Section 28 is in the following terms: 28 Defence

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. 280 We referred earlier to the decision in Powercoal where the Full Bench held that where the corporate respondent has been found to be guilty of the offence under s 15(1), and it had also been determined that the corporate respondent had failed to make out a defence under s 53(a) of the Act, there was no residual onus on the prosecutor to 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. 281 However, in any separate prosecution of the individual, the prosecutor must prove contravention by the corporation and there does not appear to be any obstacle to the individual relying on s 28 defences in challenging the prosecution's case that there has been a contravention by the corporation. To that extent a director may utilise the s 28 defence. 282 We acknowledge that circumstances may arise (and this case may be one of them) where the corporation pleads guilty to a contravention and the personal defendant may not be left with a realistic opportunity to rely on s 28 defences in defending a charge under s 26. As we have said, however, the circumstances may be different where there is a separate trial for the director (unlike the proceedings in Powercoal), where the prosecutor will be required to prove the contravention by the corporation and may not do so simply by tendering a certificate of conviction of the corporation (Australian Winch and Haulage). The essence of the decision in Powercoal was that it involved joint proceedings concerning the corporation and the director; in those joint proceedings the prosecution proved the contravention by the corporation and did not have to do so again in the same proceedings in relation to the director. In this case, as we understand it, Mr Chevalley took a decision not to contest the contravention by the corporation. However, we do not consider that this circumstance undermines the right to a fair trial as claimed by the defendant. The court cannot arrive at any determination of guilt in respect of Mr Chevalley unless there is a failure by him to show that he was not at fault.

283 The defendant submitted that s 26 makes no distinction between a non-executive director and a manager who may have a direct hands-on role in the corporation. It was submitted: The Attorney has not explained why it is that the role of a non-executive director is any different to the submission which has been made on behalf of Mr Chevalley. The Attorney has not explained why it is, or how it is, that a non-executive director should be responsible for the truck in question to be low on fuel and without adequate brakes. This was a company where a full time and experienced operations manager, approved before and after the accident by the prosecutor , was given adequate resources regarding safety. The manager has pleaded guilty. What should the non-executive director have done? 284 We do not think this proposition carries much weight. It is for the legislature to create the offence, not for the court to determine whether a distinction should have been made between managers and non-executive directors. However, this submission appears to be more appropriately addressed to the merits argument and/or the argument regarding particulars. 285 In any event, we agree with what Staff J said in Inspector Wayne James v Sunny Ngai at [93], [95]: [93] Consistent with the Court of Appeal's reasoning in Powercoal at [116]…, it follows, in my view, that the words "each director of the corporation" should not be read down or given a narrow or technical meaning.

[95] In this context, "director" has been held to include a person who knowingly assumes the office of director without having been properly appointed: Corporate Affairs Commission v Drysdale (1978) 141 CLR 236. Furthermore, the term "director" as defined in s 9 has been taken to include "de facto" and "shadow directors". These terms have been treated as alternatives and generally regarded as mutually exclusive: Re Hydrodam (Corby) Ltd [1994] 2 BCLC 180; Secretary of State for Trade and Industry v Laing [1996] 2 BCLC 324. The term "director" is not limited in any way by the Corporations Act and I therefore see no reason why the term should be limited when considered in respect of s 26 of the Act.

See also the observations of Haylen J in Ritchie at [170] which we quoted earlier in this judgment. Double jeopardy

286 It was submitted that acquittals may be challenged on appeal thereby avoiding the rule against double jeopardy. 287 We note with approval what Wright J, President said regarding appeals from acquittals in occupational health and safety matters in Morrison v United Collieries Pty Limited [2005] NSWIRComm 259; (2005) 146 IR 154: [2] It is self-evident that no appeal court would lightly reverse an acquittal obtained by a defendant in criminal proceedings where an appeal in that respect was available. There is no reason to take a different approach in respect of appeals pursuant to s 197A of the Industrial Relations Act 1996 although the consideration that appeals under that provision have been held to require the grant of leave to appeal ( Bultitude v Grice Constructions Pty Ltd (2002) 115 IR 59 at 72 to 74) enables the necessary restraint and caution that the appeal court must exercise in such cases to be applied at either or both the leave to appeal stage, or at the appeal phase of the proceedings. His Honour went on to observe:

[9] Once the provisions of s 197A are seen in their proper legal and historical context the existence of a right of appeal against an acquittal in occupational health and safety proceedings is not as exceptional as might initially appear. In that regard it must not be forgotten that for many decades the former Industrial Commission heard appeals from acquittals under legislation which may properly be regarded as predecessor legislation to the Occupational Health and Safety Acts of 1983 and 2000; that is, the Factory Shops and Industries Acts 1912 and 1962 and the Scaffolding and Lifts Act 1912 (subsequently re-titled as the Construction Safety Act 1912). No need to particularise acts or omissions

288 The defendant's 13th point was that on the prosecutor's case the prosecutor was not required to particularise the acts or omissions of the defendant. It was submitted this had the consequence of not permitting the defendant to be properly informed of his s 26 defence nor to be properly informed about s 28 defences; permits the Crown to split its case. Further, that it permitted the Crown to cross-examine at large and was a denial of procedural fairness issues that underlie Chapter III of the Constitution. 289 We addressed the question of whether the prosecutor is required to identify the acts or omissions of the defendant for the purpose of enabling the defendant to mount one of the defences under s 26(1) earlier in this decision. The question involved what was required by Kirk and was a central issue in these proceedings. Specialist court

290 The defendant's final point was that the Industrial Court is a specialist court exercising criminal jurisdiction, but lacks the advantages of judicial contributions from generalist benches. The defendant referred to [64] of the joint judgment in Kirk to support this contention (references omitted): As Jaffe rightly pointed out, it is important to recognise the use to which the principles expressed in terms of "jurisdictional error" and its related concept of "jurisdictional fact" are put. The principles are used in connection with the control of tribunals of limited jurisdiction on the basis that a "tribunal of limited jurisdiction should not be the final judge of its exercise of power; it should be subject to the control of the courts of more general jurisdiction". Jaffe expressed the danger, against which the principles guarded, as being that "a tribunal preoccupied with special problems or staffed by individuals of lesser ability is likely to develop distorted positions. In its concern for its administrative task it may strain just those limits with which the legislature was most concerned" . It is not useful to examine whether Jaffe's explanation of why distorted positions may develop is right. What is important is that the development of distorted positions is to be avoided. And because that is so, it followed , in that author's opinion, that denominating some questions as "jurisdictional" "is almost entirely functional: it is used to validate review when review is felt to be necessary ... If it is understood that the word 'jurisdiction' is not a metaphysical absolute but simply expresses the gravity of the error, it would seem that this is a concept for which we must have a word and for which use of the hallowed word is justified." 291 We frankly do not understand the point of this submission which, in any event, was put more as an afterthought by the defendant. It has nothing to do with the constitutional validity of s 26 and repugnance to the judicial process, but picks up a paragraph in the Kirk judgment that deals with the notion of jurisdictional error. Conclusions regarding constitutional invalidity

292 Mr Chevalley's 14 points as to why s 26 is constitutionally invalid are, in reality, only five points: (1) the implications of the reversal of the onus of proof (for the presumption of innocence, the presumption of guilt, doubt as to guilt, risk of imprisonment, irrelevance of proving mens rea and actus reus, removal of the right to silence, defences are illusory); (2) the disentitlement to rely on the defences available to a corporation under s 28; (3) the failure to distinguish the role of non-executive directors; (4) the availability of appeals against acquittal and the impact on the rule against double jeopardy; and (5) the absence of a requirement to particularise the acts and omissions of a defendant charged under s 8(1) by virtue of s 26 in order that the defendant may frame his or her defences. 293 We have dealt with each of these points and in doing so have concluded that they do not render s 26 constitutionally invalid. 294 Once regard is had to the fact that the OHS Act 2000 is dealing with regulatory offences, the implications of the reversal of the onus of proof under s 26 for the exercise of judicial power are no more 'pointed' or 'radical' than any of those considered in the authorities where it has been accepted that such alteration of the burden does not infringe upon institutional integrity. The presumption that a director or manager has contravened the same provision of the Act as the corporation is rebuttable; the presumption is one well known to the law, especially in the context of regulatory offences. The trier of fact must first determine whether the corporation has contravened the Act before any consideration arises as to whether there has been a contravention by a director or manager; the determination of guilt is a matter for the court and, therefore, s 26 does not usurp the judicial function. Section 26 does not require the court to act other than impartially; it does not direct the court as to the manner in which it must decide the case; it does not prevent Mr Chevalley putting a case in defence. Section 26 does not require the court to perform a non-judicial function. 295 In relation to the second, third and fourth points identified at [292] above, there is nothing of substance to suggest that individually or cumulatively they render s 26 constitutionally invalid. If, as the authorities hold, it is not incompatible with a fair trial to deprive an accused of the benefit of a reasonable doubt, and of the benefit of the presumption of innocence, in respect of an element or elements of an offence, nothing in these three points would render a trial under s 26 unfair. As for the fifth point, we have dealt with that in the earlier part of our decision. 296 We would make one final observation. It would seem an extraordinary outcome for s 26 of the OHS Act 2000 to be declared constitutionally invalid on the ground it was repugnant to the judicial process when it was held in K-Generation and Gypsy Jokers that there was no incompatibility with institutional integrity in circumstances where the appellants were not entitled to be advised of what was certain evidence against them. ANSWERS TO QUESTIONS OF LAW

297 The Full Bench answers the questions of law referred to it in respect of both Applications for Order as follows: Question 1: Yes. Question 2: No. Question 3(a): No. Question 3(b): No. Question 4: Does not arise. Question 5: Does not arise. Question 6: Does not arise. 298 In relation to the constitutional question raised by Mr Chevalley as to whether s 26 of the OHS Act 2000 is constitutionally invalid, the Full Bench answers 'No'.

299 The defendants shall have seven days to file submissions on costs with the prosecutor having a further seven days in which to reply. Unless a party indicates a desire to be heard orally on costs, the question will be determined on the papers.

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