18 July 2024
23 min read
#Government, #Workplace Relations & Safety
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Australia’s model WHS laws place an obligation on officers of persons conducting a business or undertaking (PCBUs) to exercise due diligence to ensure that the PCBU itself complies with its duties and obligations under WHS laws. Officers can be charged personally for a failure to discharge this obligation.
Relevantly for NSW Government:
Two recent cases have assisted in clarifying what measures undertaken by an officer will be deemed appropriate to meet their obligations of due diligence. These cases also provide guidance as to whether delegation of work health and safety functions to a dedicated health and safety employee is consistent with an officer’s due diligence duties.
The matter of SafeWork NSW v Mitchell Doble [2024] NSWDC 58 (Doble) involved an unsuccessful prosecution of Mr Doble, a sole director and secretary (and officer) of a company which itself was successfully prosecuted by SafeWork NSW for exposing its workers to injury for failing to have an adequate traffic management plan. This resulted in a forklift striking and seriously injuring a worker of the business. SafeWork NSW alleged that Mr Doble failed to exercise due diligence because he failed to take reasonable steps to ensure that his company had, so far as reasonably practicable, complied with its duty under the WHS Act.
In the Queensland case of R v Walshaw (2024, unreported) (Walshaw), Workplace Health and Safety Queensland also failed in prosecuting Ms Walshaw under the due diligence provisions of the Queensland WHS Act. These charges stemmed from Ms Walshaw’s role as former director (and officer) of a company involved in a zipline incident resulting in the death of a participant and serious injuries to another.
Under the WHS Act (and model WHS laws), ‘due diligence’ is defined as an officer taking various ‘reasonable steps’, including keeping up-to-date with the PCBU’s work health and safety matters, gaining an understanding of the its operations and related hazards and ensuring it has appropriate resources and processes to eliminate or minimise risks to health and safety. Please refer to section 27(5) of the WHS Act for the full definition of due diligence.
A common issue that arises in prosecutions of officers is the rigour in respect to which an officer must undertake these ‘reasonable steps’ under WHS laws to demonstrate that they have exercised due diligence. That is, how much time and effort must be spent by an officer to satisfy these duties, as well as what measures and steps can be undertaken to comply with this duty. A related issue is the extent to which the delegation of work health and safety functions across the business impacts upon an officer’s ability to demonstrate that they have exercised due diligence.
The key learnings from the Doble and Walshaw cases in respect of these issues are as follows:
For officers of PCBUs seeking to ensure they are taking reasonable steps to satisfy their due diligence obligations under WHS laws, these recent cases assist in clarifying the measures that can be undertaken to comply with an officer’s obligations and endorses a system of work whereby work health and safety functions are delegated to properly experienced and qualified workers within the business.
However, what is also clear from these cases is that officers cannot take a complete ‘hands off’ approach and must be able to demonstrate a level of awareness, understanding and involvement in the PCBU’s work health and safety processes that is appropriate in all circumstances. In other words, oversight and reporting lines are maintained.
If you have any questions about your duties as an officer of the Crown, a public authority or a business, please get in touch with our team below.
Authors: Stephen Trew & Michael Hope
NSW public servants urged to prepare for binding code of conduct
The NSW Public Service Commissioner has urged the state’s government employees to familiarise themselves with the new code of conduct ahead of its introduction in November. The new code sets out minimum expected standards of behaviour that all employees must meet and provides a framework to guide decisions and behaviour at every job level (15 July 2024). Read more here.
As the Murray-Darling Basin Plan looks to keep more water in our rivers, it’s changing the way we grow our food
The Murray-Darling Basin Plan (MDBP) was introduced to help conserve one of the country's greatest natural resources, its largest river network. Acknowledging that for too long, too much water had come out of the rivers, the plan set a target to ensure more water stayed in the system (12 July 2024). Read more here.
NSW government announces key appointments
Senior Customer Services executive John Tansey has started a new role as the next Commissioner of the Health Care Complaints Commission (HCCC) for a five-year term following recruitment by the NSW Public Service Commissioner (8 July 2024). Read more here.
‘Lack of transparency’ around Rozelle Interchange decisions, NSW Parliamentary inquiry finds
There was a "concerning lack of clarity and transparency" around contractual arrangements between the NSW Government and Transurban over the delivery of the trouble-plagued Rozelle Interchange, a NSW parliamentary inquiry has found. The legislative council report has made a slew of findings critical of the delivery of the spaghetti junction that has caused traffic issues in Sydney's inner west at peak times since the interchange opened in November (15 July 2024). Read more here.
Toll roads charge too much yet we don’t have enough of them. To fix both things, NSW should buy their private owners
Sydney’s very high tolls encourages drivers to under-use toll roads and over-use suburban streets, needlessly exposing people on those streets to noise, pollution and danger. In NSW a single corporation, Transurban, operates most toll roads to maximise the profits accruing to its shareholders, rather than tolls that will ensure its roads are well used. This article suggests the NSW government ought to buy Transurban to ensure toll roads are properly managed (5 July 2024). Read more here.
Protecting children at risk: an assessment of whether the Department of Communities and Justice is meeting its core responsibilities
This special report was completed as part of the NSW Ombudsman’s Community Services monitoring and review functions. The Department of Communities and Justice (DCJ), the lead agency for child protection in NSW, has three core responsibilities: to respond to children reported at risk, support children in statutory out of home care, and provide early intervention and family preservation services. The report found that DCJ cannot demonstrate that it is meeting its core responsibilities, and that the NSW child protection system operates in a disconnected, fragmented way which is reflected in the poor tracking of outcomes achieved for children (5 July 2024). Access the report here. Read the report here.
Justice Ingmar Taylor and Industrial Court welcomed during ceremonial sitting
The Industrial Court of NSW has formally been opened during a ceremonial sitting held at the Chief Secretary’s Building in Sydney. Justice Ingmar Taylor was welcomed during the ceremony as a judge of the Industrial Court and President of the Industrial Relations Commission (IRC) (10 July 2024). Read more here.
Justice David Chin welcomed as NSW Industrial Court judge and Vice President of Industrial Relations Commission
Experienced barrister, Justice David Chin, has been officially welcomed as a judge of the Industrial Court of NSW and Vice President of the Industrial Relations Commission of NSW. Justice Chin is a specialist in workplace health and safety, industrial, employment and discrimination law, who co-authored The Modern Contract of Employment. With 30 years’ experience as a solicitor, barrister, lecturer and author, he has a long-held passion for advocacy, and for industrial law and justice making a positive change to people’s lives (12 July 2024). Read more here.
Have Your Say – Protect consumers and raise standards in the legal profession
The Professional Standards Councils invite comments and submissions, until 24 July 2024, from interested stakeholders in relation to the proposed professional standards scheme, The Law Society of New South Wales Professional Standards Scheme. Access the survey here.
Have Your Say – NSW Suicide Prevention Legislation
The NSW Government is seeking feedback, by 18 August 2024, on the NSW Suicide Prevention Legislation. Every suicide is a tragedy that deeply affects individuals, families, and communities, leaving a lasting impact on those left behind. Legislation is one of many tools the government will use to strengthen NSW’s whole of government approach to suicide prevention. Access the online consultation here.
Lawrence v Commissioner of Corrective Services [2024] NSWSC 855
CIVIL PROCEDURE – subpoenas – review of Registrar’s decision to set aside – subpoena issued in administrative law proceedings – review of decisions to place plaintiff in protective and segregated custody whilst on remand – legal unreasonableness – where decision-makers provided statements of reasons – where subpoena sought documents relating to the preparation of those reasons – where plaintiff seeks to challenge credit of decision-makers through cross-examination – misapprehension of administrative law proceedings – credibility not in issue – not a merits-based inquiry – except in two instances decisions-makers have appropriately annexed documents they relied on – legitimate forensic purpose in seeking documents referred to but not annexed – remainder of subpoena goes beyond what is needed for proper conduct of proceedings – subpoena set aside except for two paragraphs.
Crimes (Administration of Sentences) Act 1999 (NSW) ss 10, 11, 72A; Crimes (Administration of Sentences) Regulation 2014 (NSW); Supreme Court Act 1970 (NSW) ss 23, 69, 75A; Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 33.6, 49.19, 59.7, 59.9.
Commissioner of the Australian Federal Police v Hills Greenery Pty Ltd [2024] NSWSC 847
PROCEEDS OF CRIME – application for leave to apply for exclusion from forfeiture order and compensation order.
Proceeds of Crime Act 2002 (Cth); Criminal Code Act 1995 (NSW).
Moran v State of New South Wales [2024] NSWSC 856
CIVIL PROCEDURE – interrogatories – application for – cause of action in malicious prosecution, misfeasance in public office and false imprisonment – whether claim is for damages arising out of “bodily injury” requiring demonstration of special reasons under r 22.1(3) of the Uniform Civil Procedure Rules 2005 (NSW) – whether administration of interrogatories is “necessary” within r 22.1(4) of the UCPR – application to administer interrogatories granted.
Evidence Act 1995 (NSW); Surveillance Devices Act 2007 (NSW); Uniform Civil Procedure Rules 2005 (NSW).
Commissioner of Australian Federal Police v Xin; Tara Global Pty Ltd v The Official Trustee in Bankruptcy [2024] NSWSC 851
CIVIL LAW – proceeds of crime – restraining orders against 20 defendants – one defendant brings a motion alleging negligence by the Official Trustee in the management of restrained real property – failure to make mortgage repayments – default in mortgage – penalties charged – where mortgagee seeks to exercise right of sale – separate negligence proceedings – motions to stay or adjourn negligence proceedings and negligence motion – whether duplication of proceedings – where Judge ordered or suggested proceedings should be brought by separate proceedings – whether cause of action proceeds of crime – whether any damages for negligence would inevitably be subject of restraining orders – where forfeiture orders to be determined in the future – where Judge who made ex parte restraining orders allocated motion to stay proceedings – unfortunate happenstance.
Bankruptcy Act 1966 (Cth) ; Civil Liability Act 2002 (NSW), Pt 5; Civil Procedure Act 2005 (NSW), ss 5(1), 56, 56(1), 58, 59, 66, 67; International Covenant on Civil and Political Rights, art 14(1); Proceeds of Crime Act 2002 (Cth), ss 18, 18(2)(c), 19, 21, 29, 31, 38, 39, 276, 290, 319, 319(1), 319(2), 319(6), 329, 330; Real Property Act 1900 (NSW), ss 57(2)(b), 58(1).
Secretary of the Department of Education v SafeWork NSW [2024] NSWIRComm 1042
WORKPLACE HEALTH AND SAFETY – application for external review – determination of work groups – balance of considerations.
Work Health and Safety Act 2011; Work Health and Safety Regulation 2017.
Ireland v Commissioner of Police, NSW Police Force [2024] NSWCATAD 190
COSTS – administrative review – special circumstances – costs where proceedings dismissed following appeal and remittal for reconsideration with fresh evidence.
Civil and Administrative Tribunal Act 2016; Firearms Act 1996.
Storty Pty Ltd v Campbelltown City Council [2024] NSWLEC 1397
DEFERRED COMMENCEMENT CONDITION – compliance – right of way granted or not – two way lawful access.
Civil Procedure Act 2005, s 64 ; Conveyancing Act 1919, ss 88, 88B, Sch 4A ; Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 8.7, 8.14, 14, 39; Land and Environment Court Act 1979, ss 17, 34, 39 ; Local Government Act 1919; Real Property Act 1900, s 47 ; Environmental Planning and Assessment Regulation 2021, ss 76, 113 ; Road Rules 2014, ss 11, 12, 129, 131 ; Uniform Civil Procedure Rules (2005), s 64.
SafeWork NSW v Acon Projects Pty Ltd [2024] NSWDC 275
CRIMINAL PROCEDURE – duplicity – whether charge is bad for duplicity or uncertainty – whether s 31 Work Health and Safety Act creates two offences – recklessness or gross negligence – whether prosecution must elect a fault element.
Criminal Procedure Act 1986 (NSW); Work Health and Safety Act 2011 (NSW), ss 19, 31, 32, 233; Work Health and Safety Amendment (Review) Bill 2020 (NSW).
SafeWork NSW v Linda June Priest [2024] NSWDC 276
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury.
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty.
COSTS – prosecution costs.
OTHER – quad bike – worker rode onto dam wall – bike tipped over – worker struck and trapped – labour hire company – failure to inquire as to the nature of work to be done by labour hires – failure to ensure company undertook risk assessment – failure to ensure protective equipment was installed and provided to workers – failure to consult, co-operate and co-ordinate to ensure safety.
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 21A, 22; Fines Act 1996 (NSW), ss 6, 122 ; Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 46.
SafeWork NSW v The Owners Strata Plan No 93899 [2024] NSWDC 277
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury.
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty.
COSTS – prosecution costs.
OTHER – gate damaged by vehicle collision – worker subsequently fatally crushed by damaged gate which fell on him – failure to prevent manual operation of gate – failure to direct workers not to operate gate until replaced or repaired – failure to post signage instructing workers not to operate gate until replaced or repaired – failure to urgently repair gate – failure to conduct risk assessment – failure to remove gate from service.
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E; Fines Act 1996 (NSW), ss 6, 122; Strata Schemes Management Act 2015 (NSW), ss 8, 106; Work Health and Safety Act 2011 (NSW), ss 3, 20, 32.
Lew v Commissioner for Fair Trading; KML Truck Electrics and Airconditioning Pty Ltd v Commissioner for Fair Trading [2024] NSWCATOD 96
ADMINISTRATIVE LAW – motor dealers licence – motor dealers certificate – administrative review of decision to cancel licence – disqualification from holding a licence – death of employee – fit and proper person – carrying on business – moral integrity and rectitude of character – seriousness or otherwise of particular conduct – imposition of condition.
Administrative Disputes Review Act 1997; Civil and Administrative Tribunal Act 2013; Motor Dealer and Repairer’s Act 2013.
State Wage Case 2024 [2024] NSWIRComm 1
STATE WAGE CASE – adoption of National Decision – Wage Fixing Principles – whether National Decision ought to be adopted – whether the Wage Fixing Principles ought to be retained or amended – directions made for submissions.
Industrial Relations Act 1996 (NSW) Pt 3 Ch 2, ss 50, 52; Industrial Relations Amendment Act 1996 (NSW).
Commissioner of the Australian Federal Police v Mazzco Investments Pty Ltd & Ors. (No 4) [2024] NSWSC 837
CIVIL PROCEDURE – proceeds of crime – where Commissioner has utilised production order power in s 202 of the Proceeds of Crime Act 2002 (Cth) to obtain property-tracking documents following the commencement of proceedings – where fourth defendant is disputing the use of the documents obtained – whether the Commissioner used the production order power for the sole or dominant purpose to obtain documents for use in the proceedings – whether use of the s 202 power by the Commissioner gave an unfair advantage to the Commissioner amounting to a contempt of court – requisite sole or dominant purpose not established – no relevant advantage secured by Commissioner, or disadvantage occasioned to the fourth defendant, by use of s 202 power to amount to contempt of court – fourth defendant’s cross summons dismissed.
Criminal Code Act 1995 (Cth); Food Act 2003 (NSW); Proceeds of Crime Act 2002 (Cth); Supreme Court Rules 1970 (NSW); Trade Practices Act 1974 (Cth).
GDO v NSW Trustee and Guardian [2024] NSWCATAD 187
ADMINISTRATIVE LAW – Merits Review – where NSW Trustee and Guardian decided to approve the sale of a property of a person who is the subject of a financial management order – alleged marital separation – family members allege intention of protected person to transfer ownership of property to nephew – objection to sale – paramount consideration is the welfare and interests of the person subject to the financial management order – correct and preferable decision.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Guardianship Act 1987 (NSW); NSW Trustee and Guardian Act 2009 (NSW).
Boensch v Transport for NSW (No 2) [2024] NSWCA 165
JUDGMENTS AND ORDERS – amending, varying and setting aside – orders for costs of appeal and underlying proceedings – where notice of motion not filed within 14 days of judgment being entered but notice given to Court and parties of that application – whether Court can dispense with requirement to file and serve notice of motion – no basis to vary costs order.
Civil Procedure Act 2005 (NSW), s 14; Uniform Civil Procedure Rules 2005 (NSW), rr 18.2, 36.16.
Lahoud v Willoughby City Council [2024] NSWCA 163
ENVIRONMENT AND PLANNING – development consent for the adaptive reuse of existing commercial building – judicial review – building exceeds height standard – whether consent authority satisfied of cl 4.6 of Willoughby Local Environment Plan 2012 before granting development consent – whether consent authority satisfied building had active street frontage – whether development for permissible use of shop top housing – whether consent authority failed to consider if land is contaminated.
LIMITATION OF ACTIONS – whether proceedings time-barred – time limit of three months after public notice in accordance with regulations published – earlier notifications not notices in accordance with regulations.
Environmental Planning and Assessment Act 1979 (NSW), ss 4.8, 4.16, 4.17, 4.59, 9.1, 9.46; Land and Environment Court Act 1979 (NSW), ss 25B, 58; Environmental Planning and Assessment Regulation 2000 (NSW), cl 124; State Environmental Planning Policy 55 – Remediation of Land, cl 7; Willoughby Local Environmental Plan 2012, cll 4.3, 4.6, 6.7, Dictionary.
Proclamations commencing Acts
Bail and Other Legislation Amendment (Domestic Violence) Act 2024 No 30 (2024-284) – published LW 1 July 2024
Energy Legislation Amendment (Clean Energy Future) Act 2024 No 41 (2024-291) – published LW 5 July 2024
Regulation and other miscellaneous instruments
Environmental Planning and Assessment Amendment (Development Levies) Regulation 2024 (2024-297) – published LW 12 July 2024
Water Management (Application of Act to North Western Water Source) Proclamation 2024 (2024-298) – published LW 12 July 2024
Industrial Relations Commission Amendment (Industrial Court) Rules 2024 (2024-289) – published LW 1 July 2024
NSW Greyhound Racing Rules (2024-285) – published LW 1 July 2024
Treasurer’s Direction TD24-21 - Amendment to TD23-11 Annual reporting requirements (2024-286) – published LW 1 July 2024
Treasurer’s Direction TD24-22 - Financial and Annual Reporting by former reporting GSF agencies (2024-287) – published LW 1 July 2024
Victims Rights and Support (Victims Support Levy) Notice 2024 (2024-290) – published LW 1 July 2024
Work Health and Safety Amendment (Penalty Notices) Regulation 2024 (2024-288) – published LW 1 July 2024
Environmental Planning Instruments
Ballina Local Environmental Plan 2012 (Amendment No 55) (2024-299) – published LW 12 July 2024
Canada Bay Local Environmental Plan 2013 (Amendment No 29) (2024-300) – published LW 12 July 2024
Parramatta Local Environmental Plan 2023 (Amendment No 5) (2024-301) – published LW 12 July 2024
Wentworth Local Environmental Plan 2011 (Map Amendment No 7) (2024-302) – published LW 12 July 2024
Bega Valley Local Environmental Plan 2013 (Amendment No 43) (2024-292) – published LW 5 July 2024
Bega Valley Local Environmental Plan 2013 (Map Amendment No 7) (2024-293) – published LW 5 July 2024
Bega Valley Local Environmental Plan Amendment (Complying Development) 2024 (2024-294) – published LW 5 July 2024
Cumberland Local Environmental Plan 2021 (Amendment No 7) (2024-295) – published LW 5 July 2024
Parramatta Local Environmental Plan 2023 (Map Amendment No 4) (2024-296) – published LW 5 July 2024
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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