Diemould Tooling Services Pty Ltd v Oaten
[2008] SASC 197
•17 July 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DIEMOULD TOOLING SERVICES PTY LTD v OATEN; SANTOS LIMITED v MARKOS
[2008] SASC 197
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)
17 July 2008
INDUSTRIAL LAW - SOUTH AUSTRALIA - APPEALS AND REFERENCES - CASES STATED TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - OTHER CASES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS
Whether the complaint against Diemould Tooling Services Pty Ltd and the information against Santos Limited breach the rule against duplicity - proper interpretation of s 19 and s 22(2) of the Occupational Health Safety and Welfare Act 1986 (SA) - whether prosecutor must elect to proceed on one count only or whether prosecutor can amend complaint and information - whether this would amount to laying new charges after expiry of time.
Held: appeals dismissed. No defect in complaint or information.
Occupational Health Safety and Welfare Act 1986 (SA) s 19, s 22, s 58, s 59, s 60, s 60A, s 63A; Companies Act 1958 (Vic); Magistrates Court Act 1991 (SA) s 43; Fair Work Act 1994 (SA) s 191; Summary Procedure Act 1921 (SA) s 22A, s 51; Acts Interpretation Act 1915 (SA) s 30; Acts Interpretation Act 1904 (Cth) s 3; Licensing Act 1932-1935 (SA) s 209(1), referred to.
Dinko Tuna Farmers v Markos (2007) 98 SASR 96; Romeyko v Sanuels (1972) 2 SASR 529; Montgomery v Stewart (1967) 116 CLR 220; Island Maritime Limited v Filopowski (2006) 226 CLR 328; Walsh v Tattersall (1996) 188 CLR 77; Chugg v Pacific Dunlop Limited (1990) 170 CLR 249; Chugg v Pacific Dunlop Limited [1998] VR 411; BHAS v Stevenson (1991) 68 SAIR 759; Pearce v The Queen (1998) 194 CLR 610; Johnson v Miller (1937) 59 CLR 467; Byrne v McLeod (1934) 52 CLR 1, applied.
Broken Hill Associated Smelters Pty Ltd v Stevenson (1991) 42 IR 130; Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150; Australian Char Pty Ltd (1995) 79 A Crim R 427; Meiklejohn (1998) 100 A Crim R 521; Oaten v Diemould Tooling Services Pty Ltd; Markos v Santos Ltd [2007] SAIRC 44; S v The Queen (1989) 168 CLR 266, discussed.
DIEMOULD TOOLING SERVICES PTY LTD v OATEN; SANTOS LIMITED v MARKOS
[2008] SASC 197Full Court: Doyle CJ, Gray and White JJ
DOYLE CJ: I have had the benefit of reading the reasons of Gray J. His reasons set out the statutory provisions and other matters that provide the background to these appeals. I will not repeat that material, except where necessary to do so as part of my own reasons.
The primary issue argued on appeal is whether the complaint against Diemould Tooling Services Pty Ltd (“Diemould”) and the information against Santos Limited (“Santos”) are each open to a preliminary objection on the ground that the charges against Diemould and Santos breached the rule against duplicity. Diemould and Santos submit that an examination of the particulars in support of the relevant charges discloses that each count in question charges several offences, and so is duplicitous.
The submissions on both sides acknowledge that the starting point is the proper interpretation of s 19 and s 22(2) of the Occupational Health Safety and Welfare Act 1986 (SA) (“the Act”), and of s 58 of the Act. The charges are laid under these provisions.
Diemould and Santos submit that the prosecutor in each case must elect to proceed on one count only (of the several separate counts said to be contained within each count), that being the only way of curing the defect in the charges.
Mr Kourakis SC SG, counsel for the complainant and the informant respectively, submits that if the charges are duplicitous the prosecutor can amend each relevant count to allege multiple counts (separating out the several counts found in a count that is duplicitous). He submits that this causes no prejudice to Diemould or to Santos.
Diemould and Santos oppose this being done. They submit that this would amount to the laying of new charges after the expiry of the time within which charges must be laid.
Provisions similar to the provisions in question are found in legislation in New South Wales, Victoria and Western Australia, dealing with occupational health, safety and welfare. Cases in those jurisdictions have considered issues similar to those that arise here, and have given rise to what are apparently conflicting views, and to fine distinctions leading to different results. The main cases are Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150; Chugg v Pacific Dunlop Limited [1988] VR 411; Australian Char Pty Ltd (1995) 79 A Crim R 427 and Meiklejohn (1998) 100 A Crim R 521 (Full Court, Supreme Court of Western Australia). The decision of the Full Court of the Industrial Court of South Australia in Broken Hill Associated Smelters Pty Ltd v Stevenson (1991) 42 IR 130 has been the subject of comment in a number of those decisions, and was subjected to close analysis by the Full Court of the Industrial Court in the present case.
I propose to begin by considering the words of the provisions in their context. The issue is, what is the content of an offence that arises from the contravention of s 19 or of s 22?
Section 19 and section 22 of the Act
Section 19(1) of the Act provides:
19—Duties of employers
(1) An employer must, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular—
(a) must provide and maintain so far as is reasonably practicable—
(i) a safe working environment;
(ii) safe systems of work;
(iii) plant and substances in a safe condition; and
(b)must provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and
(c)must provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health.
…
Section 19(2) has been repealed. Section 19(3) contains ten separate subparagraphs that require an employer to do a variety of things that would tend to ensure that a workplace is safe and that risks to employees’ health and safety are minimised. Four illustrations will suffice:
19—Duties of employers
…
(3) Without derogating from the operation of subsection (1), an employer must so far as is reasonably practicable—
(a)monitor the health and welfare of the employer's employees in their employment with the employer, insofar as that monitoring is relevant to the prevention of work-related injuries; and
(b)keep information and records relating to work-related injuries suffered by employees in their employment with the employer and retain that information and those records for such period as may be prescribed; and
…
(d)ensure that any employee who is to undertake work of a hazardous nature not previously performed by the employee receives proper information, instruction and training before he or she commences that work; and
…
(i)ensure that any accommodation, or eating, recreational or other facility, provided for the benefit of the employer's employees while they are at work, or in connection with the performance of their work, and under the management or control of the employer (either wholly or substantially), is maintained in a safe and healthy condition.
…
It can be seen that s 19 imposes far reaching obligations on an employer.
Section 22 provides:
22—Duties of employers and self-employed persons
(1) An employer or a self-employed person must take reasonable care to protect his or her own health and safety at work.
…
(2) An employer or self-employed person must ensure, so far as is reasonably practicable, that any other person (not being an employee employed or engaged by the employer or the self-employed person) is safe from injury and risks to health—
(a)while the other person is at a workplace that is under the management and control of the employer or self-employed person; or
(b)while the other person is in a situation where he or she could be adversely affected through an act or omission occurring in connection with the work of the employer or self-employed person.
…
Other provisions in this part of the Act impose duties on employees, on the occupier of a workplace, on the designer and owner of a building likely to be a workplace, and on the manufacturer and supplier of plant for use at a workplace and on the owner of plant.
The argument proceeded on the basis that the offences charged are created not by s 19(1) nor by s 22 but by s 58 of the Act. I am content to make the same assumption. Section 58 relevantly provides:
58—Offences
(1) A person who contravenes or fails to comply with a provision of this Act is guilty of an offence.
(2) A person who is guilty of an offence against this Act for which no penalty is specifically provided is liable to a Division 5 fine.
…
It is a contravention or failure to comply with a provision of s 19(1) or of s 22(2) that constitutes the relevant offence. For convenience I will refer only to a contravention. Clearly enough, an act or omission can give rise to an offence.
I will begin by considering the terms of the relevant provisions. I will then consider other provisions of the Act that might bear on the meaning to be given to s 19 and to s 22. I will also consider other matters said to be relevant to the proper interpretation of s 19 and of s 22.
The purpose of the Act is clear enough. Relevantly, its purposes are to be found in s 3 of the Act, which provides:
3—Objects of Act
The chief objects of this Act are—
(a) to secure the health, safety and welfare of persons at work; and
(b) to eliminate, at their source, risks to the health, safety and welfare of persons at work; and
…
The Act aims to involve employees and employers in issues affecting occupational health, safety and welfare, and to encourage a constructive approach in promoting improvements in occupational health, safety and welfare.
Diemould and Santos submit that each separate act or omission that is a contravention of s 19(1) of the Act is a separate offence. They submit further that a contravention of subpara (a), (b) or (c) of s 19(1) (and each such contravention) is a separate offence, even if the act or omission relied on would not constitute a failure to ensure, so far as is reasonably practicable, that an employee was, while at work, safe from injury and risks to health. (To avoid constant repetition, I will refer to a failure to ensure, so far as reasonably practicable, that an employee is, while at work, safe from injury and from risks to health, as a contravention of the statutory command, treating the statutory command for these purposes as the obligation affirmatively stated in the opening words of s 19(1).) Diemould and Santos argue that this is the ordinary meaning of the language used. They support their submission by reference to other provisions of the Act, and by reference to other considerations.
I do not accept this submission.
The words “in particular” in the opening words of s 19(1) I consider to be used as words of emphasis only. They are used in the sense of “especially”. In other words, in s 19(1) Parliament has identified what the Full Court of the Industrial Court called a concept with a “fused or unified meaning” – safety from injury and from risks to health. That is what an employer must ensure so far as is reasonably practicable. As a matter of ordinary language, the following subparagraphs identify matters to which Parliament draws particular attention, or which it wishes to emphasise, but on the basis that the duty relates to safety from injury and risks to health, and compliance with the subparagraphs is required to the extent only that compliance bears on safety from injury and risks to health.
In my opinion it is not the natural or ordinary meaning of s 19(1) to read it as providing that an employer must, so far as is reasonably practicable, ensure that a worker is safe from injury and risks to health, and that the employer must independently, and without reference to the requirement just stated, comply with each of the lettered subparagraphs. On that approach, each of the lettered subparagraphs except subpara (c) imposes a free standing duty that operates without reference to the obligation in the opening words of s 19(1). I consider that it makes more sense to read s 19(1) as containing, in effect, a single instruction or command, that being found in the opening lines of the provision. What follows is an indication of the reach of that instruction or command.
The provisions of s 19(3) provide a contrast. I consider that those provisions impose independent and separate obligations on an employer, and that by operation of s 58 a contravention of any one of those provisions is an offence, whether or not that contravention gives rise to a contravention of the statutory command in s 19(1). This appears most clearly in relation to a provision such as s 19(3)(b), which involves no consideration (on its face) of safety from injury and risks to health.
A contravention of the statutory command in s 19(1) is proved only by proving that, at a particular time and at a particular place of work, and in relation to an employee or employees, the employer failed to ensure so far as reasonably practicable that an employee was, or employees were, safe from injury and risks to health.
That contravention might be proved by proving acts or omissions which do not fall within subpara (a), (b) or (c) of s 19(1), although having regard to the scope of those subparagraphs this is unlikely. Alternatively, the contravention might be proved by proving a contravention of one or more of those subparagraphs, or by proving several contraventions of one or more of those subparagraphs. But, I emphasise, what is in question is a contravention of the statutory command, and not merely a contravention of the subparagraph. If, taken together, the relevant acts and omissions in their factual context give rise to a single contravention of the statutory command, there is but one offence. That is because the offence is the contravention of the statutory command found in the opening words of s 19(1), and a particular contravention may be (but will not necessarily be) the result of a number of acts or omissions.
For example, a failure to provide plant in safe condition may be attributable to the state of the plant, and to a failure to provide information and instruction and training about the use of the plant. If all those circumstances taken together produce the consequence that on an identified occasion the statutory command is contravened, then that is a single offence. Obviously enough, this involves a consideration of the facts.
The distinction in question was identified in a general way by Bray CJ in Romeyko v Samuels (1972) 2 SASR 529 at 552 where he said:
The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow. …
In the present case the language of s 19(1) indicates, in my opinion, that Parliament intended to penalise the circumstance or occurrence or event of failing to ensure so far as reasonably practicable safety from injury and risks to health. It penalises that circumstance or occurrence or event, even though one or more acts or omissions give rise to the circumstance or occurrence or event that is penalised. This is so because the contravention that is to be punished is a contravention of the statutory command. I do not agree that s 58(1), in conjunction with s 19(1), indicates an intention to penalise in all circumstances each and every separate act or omission that amounts to a failure to observe or comply with the affirmative statements found in s 19(1).
The relevant distinction is also illustrated by the decision of the High Court in Montgomery v Stewart (1967) 116 CLR 220. Section 43 of the Companies Act 1958 (Vic) provided:
Where in a prospectus there is any untrue statement or wilful non-disclosure any person who authorized the issue of the prospectus shall be guilty of an offence and liable to imprisonment for a term of not more than twelve months or to a penalty of not more than Five hundred pounds or both unless he proves either that the statement or non-disclosure was immaterial or that he had reasonable ground to believe and did, up to the time of the issue of the prospectus, believe the statement was true or the non-disclosure immaterial: ... ".
A charge was laid under this provision. Particulars were given, listing a number of statements claimed to be untrue. It was argued that the Information charged more than one offence. In rejecting that submission, Barwick CJ said at 223:
It is to my mind quite plain that the offence created by s 43 is the single act of authorizing the issue of a prospectus which contains any untrue statement or wilful non-disclosure. Perusal of Pt III, Div. 2, of the Act, in my opinion, makes it clear that the legislature desired to ensure that a prospectus should not be issued unless it complied with the requirements of the statute and contained no untrue statement and no wilful non-disclosure. But in s 43, as elsewhere in the division, the legislature provided for exculpation. Thus no offence is committed where an untrue statement or wilful non-disclosure in an issued prospectus is either as to an immaterial matter or was reasonably believed to be true or to be immaterial. If there is any untrue statement or any wilful non-disclosure in the prospectus as to which the person authorizing the issue cannot make good one or other of the exculpatory matters, there must be a conviction; that is to say, that, unless the defendant is able to establish, as to every statement which is proved to be untrue and every wilful non-disclosure which is made out, either immateriality or reasonable belief in truth or immateriality, as the case may be, the authority for the issue of the prospectus will be in breach of the statute.
Equally, in the present case, what Parliament has penalised is the failure to ensure, so far as is reasonably practicable, that an employee is, while at work, safe from injury and risks to health. A number of acts or omissions on the part of the employer may bring about the contravention of the statutory command on a given occasion. One or more of them, taken alone, might suffice to do so. In the case of others it might be the combination that gives rise to the breach of the statutory command. The offence does not always lie in each of the acts or omissions relied upon, even if they are acts or omissions specified in one of the subparagraphs of s 19.
That is how I would read the provisions of s 19(1) of the Act. I will come later to other provisions of the Act, and other matters that need to be considered.
The submissions to this Court on the point just considered were directed to two general propositions. Mr Kourakis submits that s 58 operates on s 19(1) to create a single offence, the contravention of the statutory command, constituted by a state of affairs. He submitted that “the offence is … an offence constituted by a state of affairs rather than individual acts or omissions.” Mr Wells QC for Diemould, and Mr Richter QC for Santos submit that s 58 operates to create an indefinite number of offences, each different act or omission contravening the statutory command, and each separate act or omission contravening subpara (a), subpara (b) or subpara (c), being a separate offence. As I understood their submissions this process of differentiation would include the differentiation between acts or omissions by reference to place and time and other factors.
This dichotomy of approach is reflected in the reasons of Fullagar J in Chugg. In the following passage from his reasons, s 21 is the equivalent of s 19, and s 47(1) is the equivalent of s 58. Fullagar J said at 415:
In the present case I consider that the major issue is whether sub-ss (1) and (2) of s 21, in combination with s 47(1), create on the one hand one continuing offence of allowing to subsist a particular proscribed environment, or create on the other hand a large number of offences each consisting of some identifiable act or omission which, in all the circumstances, constitutes a failure to comply with a general duty of care laid down by s 21(1). I have come to the conclusion that the latter alternative is correct, and that the effect of s 21(2) is to ensure that, if the acts or omissions charged and proven establish one or more of the several general failures set out in the lettered paragraphs of sub-s (2), then that, without more, automatically establishes a failure to comply with the general duty laid down buy sub-s (1) and thereby operates to constitute the identifiable act or omission as a criminal offence by force of s 47. But it is each particular relevant act or omission itself that quantifies and constitutes the offence, not the failure to maintain either the continuing state of affairs indicated by s 21(1) or a continuing state of affairs indicated by a paragraph of sub-s (2).
Fullagar J went on to call in aid the approach taken to the tort of negligence, which requires proof of identifiable acts or omissions to support a damages claim for breach of a duty of care. He then said at 416:
In my opinion the offences created by sub-ss (1) and (2) of s 21 in combination with s 47 consist of identifiable acts or omissions which constitute in all the circumstances a breach of the duty stated by s 21(1). If in all the circumstances they constitute a failure falling within one or more of the paragraphs of s 21(2), one need look no further because ipso facto they constitute a breach of the duty owed by s 21(2).
The contrary construction of the section contended for on behalf of the informant is that the offence to be charged is in substance a failure to keep in uninterrupted existence the stipulated environment. This construction suffers from the same defects as did the construction of the Companies Act which was rejected in Byrne v Baker. …
The defect that he identifies is that the accused would not know with precision what he is charged with, if the construction that he preferred was not adopted.
I respectfully disagree, at least in relation to the Act. In what follows I will try to explain why. But, in brief, to my mind the issue is not one of characterising the employer’s duty (the affirmative command that is drawn from s 19), but of identifying what constitutes a contravention of s 19(1). And, as I will explain, the need to identify and to particularise an offence means that the defendant will know “with precision what he is charged with”, although the proof of that charge may involve the proof of a number of acts or omissions. At times that may mean that the factual basis of a charge is not straightforward, but it does not follow that the accused person will not know with what he is charged. And, on the contrary approach, I foresee scope for the prolonged dissection of facts to isolate the separate “identifiable acts or omissions”, each one of which separately will constitute the contravention of the provision. In the end, each approach has its own difficulties.
On reflection, it seems to me that the submissions on either side assume that the establishment of either proposition will clear the way forward in all (or most) cases. For reasons that I will indicate, I do not agree. On either approach, issues of the proper particularisation of a charge and issues of both patent and latent duplicity may well arise. Putting things simply, and perhaps too generally, Mr Kourakis’ submission, expressed as it is, will give rise to difficulty in identifying the subject matter of an offence because his submission will result in a tendency to embrace too much within a single offence. The submission by Mr Wells and Mr Richter will give rise to difficulty in deciding when and where to stop the process of identifying acts and omissions that are said to be separate offences. This is not intended as a criticism of the submissions. The difficulty arises from the statutory language.
A contravention of s 19(1) of the Act can be described as constituted by a state of affairs rather than individual acts or omissions. That reflects the fact that the contravention of the statutory command is the failure to ensure, so far as is reasonably practicable, safety from injury and risks to health.
But a contravention of s 19(1) will be the result of an act or omission by an employer, that gives rise to a contravention of the section at an identified place (where an employee is at work) and in relation to an employee or employees who must be shown to be affected by the contravention, because of the failure to ensure so far as is reasonably practicable that the employee is or employees are safe from injury and risks to health. The employee or employees might, depending on the circumstances, be an identified person or persons. The employee or employees might be performing a certain kind of work or using a particular implement, and so might be a category or group described in that way. The employee or employees in question might be an employee or employees at a particular place, and designated in that way. Which of these is appropriate will depend on how the charge is framed.
The need to identify by way of particulars the content of a contravention will require that a charge be particular as to these matters. The charge against Diemould illustrates this. The charge is based on an alleged contravention of s 19(1) that manifested itself at a particular place on a particular day and in particular circumstances, when a named employee was “operating a horizontal borer”. The naming of the employee in this case is part of adequately particularising the contravention relied upon. (The identity of the employee is not an element of the offence.) For present purposes it is neither here nor there that other employees that day or on other days might have been exposed to the same risk.
I should add that the allegation of a fatal injury to the named employee is unnecessary but legally harmless. The consequence of a contravention of s 19(1) is relevant to the question of penalty, but is not an element of the offence.
My point is that the complaint against Diemould identifies when and where and how Diemould is alleged to have contravened s 19(1). The particulars then specify the acts and omissions that gave rise to that contravention. It may be that not all of the particular allegations will be made good. At the end of the day the question for the Court will be whether the matters alleged establish that, on the day in question and at the place in question and in the circumstances specified, Diemould failed to ensure so far as was reasonably practicable that the named employee was safe from injury and risks to health. The particulars in subparas 3, 4 and 5 of the complaint identify the acts or omissions that are said to prove and to constitute the contravention of the statutory command.
It might emerge when the evidence is led that some of the matters alleged as particulars did not contribute to the contravention of the statutory command on the occasion in question, that is, when the employee used the horizontal borer. It may be that the evidence will reveal that a number of the matters alleged as particulars lack the required nexus in time, place and circumstance for them to be treated as proof or part of the proof of the alleged contravention. In that event the relevant particular will not be made out. It is possible that when the evidence is heard it might tend to establish not the offence alleged, but some other breach of the statutory command that plays no part in the offence alleged. In that event, latent duplicity will have emerged and the relevant particular should be struck out, and the relevant evidence held inadmissible.
It may also be that some of the particulars should be struck out (unless amended) because they are too general, and because in that respect they give rise to uncertainty. For example, para 2.6 of the second count against Santos alleges a number of omissions relating to inspection of, and hazard identification in relation to, “the plant”. This means the “Liquids Recovery Plant”. Not knowing the facts, I cannot be sure about the scope of these particulars. But if they relate to numerous components and items of machinery, it may be that these particulars raise irrelevant matters. Omissions on the part of Santos in relation to components and pieces of machinery other than the inlet valve that is said to have ruptured, or the part of the plant that includes the inlet valve, may well be irrelevant to the charge that is laid, which focuses on the exposure to risk on 1 January 2004 when the inlet valve ruptured.
I can well understand that Diemould and Santos are concerned about the width and generality of the charges against them.
In other words, my conclusion as to the proper interpretation of s 19(1) is by no means the end of the road. To call the offence one that is or arises from a state of affairs does not remove the need for care in identifying the contravention to be charged, nor the need for care in identifying the acts and omissions that are said to establish the contravention relied upon.
Assume for present purposes that the charge against Diemould was in the terms now before the Court, except that it alleged an offence between 1 June 2004 and 30 June 2004. If that allegation reflected a difficulty in identifying the day on which the contravention occurred, it would give rise to no particular issue. But if it were shown to reflect a claim that the complainant could rely on any contravention of s 19(1) between those dates, whether or not the contravention contributed to the incident and contravention identified in the complaint, that approach would be open to objection. If the complainant alleged that the particularised act and omissions persisted throughout the whole of the month, the answer would be that evidence to that effect was prima facie irrelevant, the relevant issue being the failure to observe the statutory command when the named employee used the horizontal borer on the nominated day and was fatally injured. The fact that an identical offence might have been committed on other days would not be relevant, unless admissible in some way as similar fact evidence. This is just another illustration of how the correct description and particularisation of an offence might arise, even though the submission by Mr Kourakis is accepted.
The manner in which a charge is laid under s 19(1) will always call for some care and for some common sense. What is permissible by way of particulars in evidence will depend on how the charge is laid.
I will give one further illustration.
Assume that in the Diemould case the evidence was that the named employee was exposed to one and the same risk of injury, because of the same acts or omissions, when operating the horizontal borer on 4 June and on 5 June, but that the employee was not injured until 5 June. Could the complainant properly charge a single offence occurring on 4 June and 5 June, or should the complainant allege a separate (but identical) offence on each of those days?
It is not necessary to decide. My tentative view is that in those circumstances a single offence could be alleged, provided that it is alleged that the same acts and omissions by the employer exposed the named employee to the same risk of injury when using the horizontal borer on those two days. But whether I am right or wrong, the example is another illustration of issues that can arise, notwithstanding the resolution of the main question argued before this Court.
All that I have said so far is based on my reading of the statutory provision, giving the words their ordinary meaning.
It is now necessary to consider some other provisions of the Act, and some other matters raised in argument. It is necessary to consider whether they support the interpretation of s 19(1) contended for by Mr Wells and Mr Richter, and whether they point to the rejection of the submission by Mr Kourakis.
Mr Wells and Mr Richter support their interpretation of s 19(1) of the Act with the following additional submissions.
They submit that s 19(1) does not import or express in statutory terms the duty of care owed by an employer to an employee at common law. I agree, if by this they mean that the duty imposed by s 19(1) does not necessarily have the same content as the common law duty of care. The content of the duty depends on the requirements and interpretation of s 19(1): see Dinko Tuna Farmers v Markos [2007] SASC 166; (2007) 98 SASR 96 at [44] Gray J. Mr Wells and Mr Richter make this submission because in some judgments the approach to the pleading of a duty of care in a negligence action against an employer has been seen as supporting the conclusion that s 19(1) contains a single command reflecting or replicating the common law duty to take reasonable care for the safety of an employee: Boral at [156] Fisher CJ (dissenting); BHAS v Stevenson (1991) 68 SAIR 759 at 796-798 Judge McCusker; but compare this with a different approach in Chugg at 415-416 Fullagar J. The extent to which the approach of those judges to the construction of the relevant statutory provision was influenced by a view that it replicates the common law duty of care owed by an employer is not clear. Be that as it may, I do not rely on any such analogy in my approach to the interpretation of s 19(1).
Mr Wells and Mr Richter argue that the interpretation that I favour will cause injustice to an employer. They submit that the interpretation leads to uncertainty. The submission that they put in this respect appears to accord with the opinion of Hungerford J in Boral at 205-206, where he said:
The contrary approach as contended for by the respondent and as adopted by Marks J, namely that subs (2) exemplified the manner of a breach by setting out particulars, requires, it seems to me, acceptance of the proposition that the duty on an employer is characterised generally by those particulars, or any one or more of them, on a continuing and uninterrupted basis, the failure to comply therewith attracting a penalty. That approach would make quite uncertain an employer's explicit duty at any one time by prescribing some amorphous concept to prevent a detriment to the safety of employees. As such, an employer allegedly failing to comply could, and would, be faced with a charges broad and wide-ranging as to offend a fundamental principle of the criminal law of certainty and proper definition of that with which he is charged. …
I do not agree. I agree that s 19(1) states the duty of an employer in general terms. But a charge alleging a contravention must give particulars that adequately identify the acts and omissions relied upon as giving rise to the contravention. The general nature of the duty does not allow a prosecutor to avoid giving such particulars of a contravention as are required to ensure a fair trial. I do not agree that the fact that a number or numerous acts or omissions may be relied upon means that the employer’s duty is replaced by “some amorphous concept”. In any event, what is in question is the adequate particularisation of a contravention of the duty imposed by s 19(1). While I readily accept that “overloading” the particulars can give rise to practical problems, I do not agree that the fact that the contravention of s 19(1) might arise from a number of different acts or omissions means that a defendant will not know with what the defendant has been charged. The most that can be said is that when the particulars are numerous then, assuming they are proper particulars, the defendant will be required to fight on numerous fronts. But that would be true if, instead of a single charge with multiple particulars, multiple charges with only one particular each were alleged.
I accept that in the present case, at least in the case of Diemould, the charges do appear to be overloaded with particulars. In saying that I acknowledge that I do not know the facts of the case. The multiple particulars might be the result of a failure to focus on the main issues. On the other hand, the multiple particulars might reflect the point made by Fisher CJ in Boral at 157 when he said:
Most accidents have multiple causation. This case as the particulars show is typical. Some matters are breaches of safe working practice, safe working codes and regulations under other statutes. The device of bringing the central allegations together under one count, under s 15, is inherent in the structure of the Act itself and a long tradition of industrial litigation. Every dangerous machinery count can be presented as a breach of legislative standards (s 27 of the Factories, Shops and Industries Act 1962), a failure to employ a safe system of work, a failure to supply safe plant and machinery, a failure adequately to train an employee in safe work practices, a failure to warn and advise, to name but a few.
This is a dissenting judgment, but the point that Fisher CJ makes about accidents having multiple causation is a valid one. Proof of an accident is no part of proof of a breach of a contravention of s 19(1) of the Act, but the same point applies to contravention of that provision.
A variation of the submission just considered is a submission by Mr Wells to the effect that the approach of s 19(1) that I favour means that a complainant can rely upon multiple particulars of a contravention of s 19(1), and at the close of the prosecution case pick the strongest case for conviction, ignoring the particulars not made out or unlikely to be made out. Meantime, the employer will have had to contest every allegation in the particulars, sometimes relying upon different responses to different particulars. In that situation the employer will not get the benefit of an acquittal on those particulars that are successfully defended.
I agree that the circumstance that Mr Wells postulates might occur. That is, where there are multiple particulars of an alleged contravention, the prosecutor might ultimately succeed on only or two, and yet obtain a conviction. But I see no reason why orders for costs would not be able to compensate the employer, should it be appropriate, reflecting the fact that the employer succeeded on many of the issues fought in the case. I do not understand the sense in which the employer is said to be deprived of the benefit of an acquittal. True, if the employer faced multiple charges, each based on a single act or omission, the end result would be, in the example postulated, a number of acquittals and a number of convictions. But I do not understand why that is said to be a just outcome, the other outcome being unjust.
I turn now to other provisions of the Act that might bear upon the construction to be placed on s 19(1).
Section 58(7) determines by whom proceedings for an offence may be brought. It provides:
58 Offences
…
(7) Proceedings for an offence against this Act may only be brought –
(a) by the Minister; or
(ab) by the Director of Public Prosecutions; or
(ac) by the Director; or
(b) by an inspector; or
(c)if an employee has suffered injury as a result of an act or omission which is alleged to constitute an offence against this Act and proceedings have not been commenced by the Minister, the Director of Public Prosecutions, the Director or an inspector within 1 year of the date on which the offence is alleged to have been committed – by the employee.
…
I agree that the reference in subpara (c) to “an act or omission” provides some support for Mr Wells and Mr Richter. One might have expected the subparagraph to refer to a person who suffers injury “as a result of a contravention of or failure to comply with a provision of this Act”. The submission is that the provision reflects an assumption that it is an act or omission which will constitute an offence against the Act, and that this does not fit with the approach under which a number of acts and omissions, taken together, amount to a contravention of the statutory command.
However, it has to be borne in mind that a contravention of s 19(1) will always be the result of one or more acts or omissions. To establish standing to prosecute an employee will have to show that injury resulted from the act or omission or those acts or omissions. As the provision deals with an entitlement to bring proceedings, the provision focuses on what is alleged in the charge. It is not surprising that the drafter might focus on an act or omission, because the employee will have to allege and prove injury as a result of an act or omission. The injury in a particular case might not be attributable to the offence, but rather to a particular act or omission which is one of the things which, in combination with others, gave rise to the offence. I do not consider that this aspect of the provision throws any light on the meaning of s 19(1). Moreover, on either approach to the meaning of s 19(1), one could say that s 58(7) could have referred (subject to the point just made) simply to “an employee [who] has suffered injury as a result of an alleged offence …”. Either way, it might be said that the additional words that appear in the provision are unnecessary. But I do not think that they reflect an assumption that an offence will be attributable to and only to a single act or omission.
Section 59 has been amended since the decision of the Full Court of the Industrial Relations Court. It now creates an offence that has no bearing, in my opinion, on the meaning to be attributed to s 19(1). At the relevant time s 59 of the Act provided:
59 Aggravated offence
(1) Where a person contravenes a provision of Part 3 –
(a)knowing that the contravention was likely to endanger seriously the health or safety of another; and
(b)being recklessly indifferent as to whether the health or safety of another was so endangered,
the person is guilty of an aggravated offence and liable upon conviction to a monetary penalty not exceeding double the monetary penalty that would otherwise apply under Part 3 for that offence or imprisonment for a term not exceeding 5 years or both.
(2) An offence against this section is a minor indictable offence.
Mr Wells and Mr Richter submit that the relevant contravention must be accompanied by a knowing and reckless state of mind, and that requires the identification of a particular act or omission to which the state of mind is directed, and that it is not permissible or possible to treat the state of mind as directed to or referable to “a compendious statement of the offence”.
I disagree. A contravention of s 19(1) may be attributable to a number of acts and omissions, as is alleged in the present case.
The contravention will comprise acts or omissions the consequence of which is an identifiable failure to ensure, so far as reasonably practicable, that an employee (or employees or a class of employees) is safe from injury and risks to health. The contravention must be able to be characterised as or expressed in words as an identifiable situation, the result of one or several acts or omissions. If the acts and omissions (and the resulting situation) are attributable to a person, it should be possible to decide whether the person knew that the resulting contravention was likely to endanger seriously the health or safety of another, and whether the person was reckless as to that.
That is not to say that difficulties will never arise. On the approach preferred by the appellants it might be difficult to establish that any particular contravention, taken alone (as it would have to be taken) was likely to endanger seriously health or safety. If it is true to say that a contravention of the statutory command will often have multiple causes, treating each of those causes as a separate offence, whether or not there has been a failure to ensure as far as is reasonably practicable that a worker is safe from injury and risks to health, might make it virtually impossible in any one case to prove the elements of an aggravated offence under s 59.
In short, I find nothing in s 59 to support the submissions by Mr Wells and Mr Richter.
Section 60(1) provides:
60 Continuing or repeated offences
(1) Where a person is convicted of an offence against this Act and after that conviction the act or omission of that person that constituted the offence continues, that person is guilty of a further offence.
…
The appellants submit that this provision reflects an assumption that a breach of s 19(1) will be attributable to a single act or occurrence. The issue under s 60(1) will be whether this act or omission has continued. They submit that if an offence is attributable to a number of acts or omissions and, after a conviction, most of those acts or omissions are remedied but one continues, or some continue, it will not be possible to identify the continuing act or omission that constituted the offence. I disagree. The issue will be whether one act or omission that gave rise to a contravention has continued, or whether several acts or omissions that together gave rise to the contravention continued. The fact that some acts or omissions have been remedied will be immaterial. If the continuing act or omission does not, or the continuing acts or omissions do not, amount to a contravention of s 19(1), then the fact that they have continued will not give rise to a further offence. I do not read s 60(1) as penalising the continuation of any act or omission which happened to be a particular alleged against an employer. There will be a further offence only if the continuing act or omission, or the continuing acts and omissions, do amount to an offence.
I think it likely that the drafter has referred to an “act or omission” here, and possibly in other provisions, rather than to an offence or a contravention of the act, because of a desire to avoid the concept of a continuing offence or contravention because to do so would import a continuing exposure of an employee to risk, at least in relation to s 19(1). I think it likely that the purpose of s 60(1) is to provide an incentive to the employer to remedy a situation even if, for the time being, employees are not exposed to risk by virtue of the situation.
Once again, I do not consider that this provision throws any light on the meaning of s 19(1).
Section 60A(1) provides:
60A Non-pecuniary penalties
(1) If a person is convicted of an offence against this Act, the court may, after taking into account any submissions and other relevant matters, in addition or in substitution for any penalty that it may impose –
(a)order the convicted person to undertake, or to arrange for one or more employees to undertake, a course of training or education of a kind specified by the court;
(b)order the convicted person to carry out a specified activity or project for the general improvement of occupational health, safety and welfare in the State, or in a sector of activity within the State;
(c)order the convicted person to take specified action to publicise the offence, its consequences, any penalty imposed, and any other related matter;
(d)order the convicted person to take specified action to notify specified persons or classes of persons of the offence, its consequences, any penalty imposed, and any other related matter (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the convicted person’s conduct).
Mr Wells submits that this provision will not work satisfactorily if an offence is attributable to multiple acts or omissions. I disagree. I consider that this provision can work quite satisfactorily in such a situation.
Section 63A provides:
63A Use of codes of practice in proceedings
Where in proceedings for an offence against this Act it is proved that the defendant failed to observe a provision of an approved code of practice dealing with the matter in respect of which the offence is alleged to have been committed, the defendant is, in the absence of proof to the contrary, to be taken to have failed to exercise the standard of care required by this Act.
Mr Wells makes the point that if the particulars in support of a charge include a number of acts and omissions, one of which is a failure to observe a provision of an approved code, there will be a reversal of proof in relation to that particular only. How will this operate in relation to the other particulars?
I agree that this provision gives rise to some difficulty. It operates only when a failure to observe a provision of an approved code is proved. That failure then amounts to proof of a failure “to exercise the standard of care required”, subject to the effect of evidence to the contrary.
If anything, this aspect of the provision provides some support for the submissions by Mr Kourakis. Assuming the reference to “the standard of care required” is a reference to the obligation imposed by s 19(1), the provision assumes that it is the finding in those terms that is required to prove a contravention, and so assumes, for example, that proof of a contravention of subpara (a) or (b) or (c) of s 19(1) is not, of itself, proof of an offence.
Subject to that, Mr Wells rightly makes the point that on a charge supported by multiple particulars, one of which is a failure to observe an approved code, the defendant will be in difficulty if it wishes to submit no case to answer.
However, I do not consider that this throws any real light on the meaning of s 19(1).
I conclude that the other provisions of the Act canvassed in argument do not point towards the construction of s 19(1) advanced by Mr Wells and Mr Richter. By and large they do not provide much assistance to either side of the argument.
Accordingly, I would adhere to the interpretation of s 19(1) that I consider is the result of the natural and ordinary meaning of the words used.
I have not found it necessary to analyse the cases relied upon in argument before this Court. They contain reasons that support each side of the argument before the Court. Some of the distinctions that are drawn (on each side of the argument) seem rather fine to me. In the end, I have preferred to focus on the language of the Act, but I have been assisted by a consideration of the reasons in the main cases.
I turn to s 22(2) which is set out earlier in my reasons.
The approach that I have taken to s 19(1) applies without difficulty to s 22(2). I would give that provision the same meaning as I gave to s 19(1). A contravention of s 22(2) arises from an act or omission that has the effect that the person charged has failed to ensure as far as reasonably practicable that a person (of the relevant kind) is safe from injury or risk to health. This may be the result of a single act or omission, or a number of acts or omissions which together expose another person to risk of injury or risk to health.
Some have seen a significant difference between the equivalent in other legislation of s 19(1) and the equivalent of s 22(2). In Boral s 15 was the equivalent of s 19, and s 16 was the equivalent of s 22(2). In Boral Hill J adopted the approach to s 15 for which Mr Wells and Mr Richter contend in relation to the South Australian s 19. But as to s 16, Hill J said at 184-185:
The provisions of s 16(1) are, on their face, in marked contrast to those of s 15(1) and s 15(2). In my opinion, s 16(1) creates only one offence where, on a particular occasion, an employer fails to ensure that persons not in his employment are not exposed to risks arising from the conduct of his undertaking or operations while they are at the employer's place of work notwithstanding that the conduct of the undertaking or operations at that point exposes different persons to different risks which arise in a variety of ways. In my opinion, the gist of the offence created by s 16(1) is that of the employer exposing persons not in his employment to risks to their health or safety while at his place of work. The act or omission resulting in the exposure of persons to risks to their health or safety may arise in one or more of a number of ways. In other words, the prohibited act or omission may possess one or more characteristics and proof of the existence, at a particular time, of several risks and several causes of risks, each to different persons or groups of persons, will establish only one contravention of the section.
Mr Richter submits that the explanation for this is that s 16(1) in the New South Wales legislation provides that an employer must ensure that persons “… are not exposed to risks …”. Framing the duty in this negative way is said to mean that s 16(1) penalises the prescribed conduct even though it might arise from one or more acts and omissions that place a person or persons at risk. On the other hand, Mr Richter submits that s 22(2) deals with a failure to ensure that persons are safe from injury and risks to health.
I find that distinction elusive. I consider that under either provision the contravention or offence will consist of an act or omission that exposes, or acts or omissions that expose, a person or persons to a risk of injury or a risk to health that it was reasonably practicable to avoid. (Under the New South Wales Act, the question of what is reasonably practicable arises by way of defence under s 53.) So, for what it is worth, the approach taken by Hill J in my opinion provides some support for the approach that I would take in relation to s 22(2). But my approach is based primarily on the words of the provision.
I should add that Mr Richter pointed to the fact that s 22(2)(b) refers to a person being in a situation where the person “could be adversely affected through an act or omission …”. I do not agree that this aspect of s 22(2) affects the decision as to what is or would be a contravention of the provision. This part of the provision identifies the places in relation to which an employer or self-employed person has a responsibility, other than work places. A duty is imposed in respect to a place where an act or omission in connection with the work of the employer or self-employed person might have an effect. The test is deliberately expressed in broad terms, and, in my opinion, deliberately postulates an effect from any act or omission, not just an effect attributable to a contravention of the provision.
Double Jeopardy
I turn now to an issue raised on the appeal by Santos.
Counts 3 to 9 of the Information against Santos allege offences against s 19(1) of the Act. In each case the description of the offence, and the particulars, are the same as those in relation to count 2. The only difference is that in each of counts 3 to 9 a different employee is named.
Counts 10 to 14 each allege an offence against s 22(2) of the Act. Again, in each case the description of the offence is the same, and the particulars are the same. The only difference is the name of the person, not being an employee employed or engaged by Santos, whose health or safety is alleged to have been adversely affected.
Mr Richter submits that s 19(1) and s 22(2) each give rise to an offence (through the application of s 58) with respect to a class of persons. The offence is the failure to ensure, so far as is reasonably practicable, that persons in that class are safe from injury and risks to health. For the purpose of the offence arising under s 19(1), the class is persons who are employees. For the purposes of s 22(2) the class is any other person, not being an employee employed or engaged by the employer, provided that person is at a workplace or where the person could be adversely affected through an act or omission.
Mr Richter submits that the identification of an individual member of the protected class is not an element of the offence. The offence is, as I have already noted, said to be an offence in relation to a class or category of persons. He submits that to lay multiple charges arising from identical conduct, the charges differing only in the identity of the person affected, is to put Santos in jeopardy of double conviction and double punishment in an impermissible way. Putting it a little differently, he submits that the identity of the relevant person is not an element of the relevant offence, and so cannot be relied upon to support an allegation of a separate offence.
This submission raises an issue that I have found particularly difficult.
The issue at this stage is whether the form of the charges discloses that counts 2 to 9 charge as separate offences what is only one offence, and whether counts 10 to 14 charge as separate offences what is only one offence.
If that is the case, a plea in bar cannot be entered at this stage because no conviction or acquittal has been recorded on any count: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [17] McHugh, Hayne and Callinan JJ, at [62] Gummow J and at [125] Kirby J. But although the remedy of a plea in bar is not available the Industrial Court has power to stay a prosecution as an abuse of process in a case such as this, that is, when it is apparent on the face of the proceedings that a single offence has been made the subject of multiple counts: Pearce at [29]-[31] McHugh, Hayne and Callinan JJ, at [67] Gummow J and at [117] Kirby J; Island Maritime Limited v Filopowski [2006] HCA 30; (2006) 226 CLR 328 at [32] Gleeson CJ, Heydon and Crennan JJ; at [64]-[65] Gummow and Hayne JJ, at [77] Kirby J and at [96]-[97] Callinan J.
If Mr Richter’s submission is made good, that is, if it is apparent on the face of the proceedings that multiple counts have been brought in respect of the one offence, the Industrial Court can and should stay all but one of the counts in each group at this stage. It is appropriate to treat questions 14 and 16 as raising that issue.
To the extent that a stay might be granted on wider grounds, when the evidence has come out, and to the extent that considerations of double jeopardy might be relevant to punishment, they are matters that are not before the Court now.
There is no need for this Court to consider the difference of opinion as to the scope of the plea in bar that emerged in Island Maritime: see Gleeson CJ, Heydon and Crennan JJ at [25]-[30], Gummow and Hayne JJ at [38]-[40], Kirby J at [88] and Callinan J at [95]. It is unnecessary because here the submission is that each charge in the relevant group is for the very same offence.
Having said that, in my opinion questions 14 and 16 could not properly be answered at this stage. However, I am prepared to say that I think that Mr Richter’s submission may be correct, and that it is an appropriate case for a stay. I will explain this briefly.
It is an element of a charge under s 19(1) and under s 22(2) that there be a contravention of the statutory command in relation to an employee, in a case of s 19(1), and in relation to another person (not an employee) in relation to s 22(2). It will often be convenient and appropriate, although not necessary, to identify the person in question. The charges under consideration illustrate this. Count 2 might have referred simply to an employee. But that would give rise to uncertainty which is appropriately met by referring to a named employee.
I agree with Mr Richter’s submission that offences under these two provisions are offences in relation to a class of persons. But that is not the end of the road in relation to this topic.
In some situations it will be permissible and appropriate to refer to the person or persons in question simply as an “employee” or as “employees” or as “persons other than employees”, provided that the constitution or makeup of that group is properly identified. If it is not, the occasion the subject of the charge will be uncertain.
Just as it may be appropriate but not essential to identify an employee, it may be convenient to refer to employees or other persons as a group, provided that the group is adequately identified to enable the issues in the case fairly to be fought.
But that does not dispose of the issues raised here.
Assume, for example, that two employees are working with a piece of equipment that is unsafe. In my opinion only one offence is committed, the offence involving the exposure of those two employees on the particular occasion to a particular risk. If one employee used the item of equipment on one day, and the other employee used it on the following day, in my opinion two separate offences are committed.
The answer to the question of whether a difference in the identity of the person put at risk or affected will give rise to a separate offence will always be embedded in the facts. As I have said earlier in these reasons, the relevant contravention is the act or omission that produces, or the acts and omissions that produce, the result or effect that a person is exposed to a risk of injury, and that the employer has failed to ensure so far as practicable that the person is safe from injury and risks to health. If a particular contravention gives rise to a single risk to injury or health on a single and identifiable occasion, in my opinion only one offence is committed, without regard to the number of persons involved. But if there are different acts or omissions that, even on one occasion, give rise to different risks, there might be different offences in relation to different employees. If the same acts and omissions give rise to a risk to which different persons are exposed on different occasions, then although in a sense the risk is the same, I consider that different offences are committed.
It is for this reason that I say that the question of whether a difference in the identity of the person involved or affected will be a basis for a separate charge will always be embedded in the facts. That is inconvenient, because it does not permit simple answers. But that appears to me to be the consequence of the manner in which the legislation is expressed.
Having regard to the content of the particulars, and having regard to the manner in which the argument was conducted, it seems to me likely that in relation to each of the two groups of offences there is in fact only one offence involving or affecting each of the persons named. However, that is a matter that cannot be determined simply upon the face of the proceedings.
For those reasons, I consider that it was inappropriate to answer questions 14 and 16, although, as the matter was argued fairly fully, it is appropriate to go as far as I have gone.
Amendment of the proceedings
A number of the questions before the Full Court of the Industrial Court, and argued before this Court on appeal, raise the question of whether the proceedings can, as a matter of law, be amended if they are defective, so as to remedy the defect.
I agree with the conclusion of the Full Court of the Industrial Relations Court that these questions should not be answered.
As a matter of law they do not arise under the questions of law referred to the Full Court of the Industrial Relations Court. Those questions arose only if that Court concluded that the complainant or informant should be put to an election, before the relevant defendant pleads, as to the counts on which the prosecution will proceed. The Full Court of the Industrial Relations Court recognised that these questions did not arise: Oaten v Diemould Tooling Services Pty Ltd; Markos v Santos Ltd [2007] SAIRC 44 at [78] and at [155]-[168]. Having regard to the reasons that I have given, that situation does not arise on appeal. Accordingly, as matter of law, an answer to the questions was not called for.
It is likely that questions of latent duplicity, and as to the adequacy and appropriateness of the particulars, may arise. In light of that, even though the matter has been argued, it is undesirable to isolate and answer a question which is not only hypothetical at present, but may well not meet the situation with which the court hearing the charges is called to deal.
This is unfortunate, but experience has shown that to give an answer to a hypothetical question that does not have to be answered can give rise to problems. In the present case the question that is posed is expressed in very general terms. It is, simply, whether the “foreshadowed amendment” can be made. And the foreshadowed amendment is described in no more detail than to say that each separate count, if the counts are duplicitous, will be separated out. A glance at the particulars indicates that this could be a big task, and could give rise to all sorts of complications. The Full Court of the Industrial Relations Court rightly declined to answer the questions addressed to this issue, and so this Court (on appeal), does not have the benefit of that Court’s consideration of the issue.
That is why I consider it inappropriate on this appeal to deal with the issues raised in the case of Diemould by question 5 and question 7, and in the case of Santos by question 5, question 8, question 13, question 15 and question 17.
Answers to questions
It is convenient to indicate how I would have answered the questions which were considered on appeal, even though this Court is not called on to give answers.
On the appeal by Diemould, I would answer as follows the questions that were the subject of submissions on appeal. It should be noted that these answers relate to submissions that the charges are patently (or on their face) duplicitous. It remains to be seen whether the particulars are open to attack on other grounds.
Question 4: No.
Question 5: This question does not arise.
Question 6: No.
Question 7: This question does not arise.
On the appeal by Santos, I would answer as follows the questions that were the subject of submissions on appeal. I make the same reservation as I made on the appeal by Diemould.
Question 4: No.
Question 5: This question does not arise.
Question 6: No.
Question 7: No.
Question 8: This question does not arise.
Question 12: No.
Question 13: This question does not arise.
Question 14: Inappropriate to answer.
Question 15: This question does not arise.
Question 16: Inappropriate to answer.
Question 17: This question does not arise.
Disposition of appeal
With the exception of questions 14 and 16, my answers are in accord with the answer given by the Full Court of the Industrial Relations Court. As to questions 14 and 16, there is some difference between the answers that I would give and the answers that that Court gave. My approach to those questions differs somewhat from the approach of the Full Court of the Industrial Relations Court. There is one clear point of distinction between my approach and that of that Court. I do not agree that a separate offence is committed in relation to each employee or person in relation to whom the statutory command is contravened, regardless of the circumstances.
In all the circumstances, my tentative opinion is that the appeal should be dismissed. But I would hear submissions on the appropriate order in relation to the matters raised by question 14 and question 16. In other respects the appeal should be dismissed.
GRAY J.
The primary issue arising on these appeals concerns alleged duplicity in criminal proceedings.
The appeals arise from a complaint[1] laid against Diemould Tooling Services Pty Ltd and an information[2] issued against Santos Limited. The complaint and information are unrelated. However, Diemould and Santos raised strikingly similar concerns about the terms of the complaint and information.
[1] Pursuant to section 49 of the Summary Procedure Act 1921 (SA), summary offences are charged on complaint.
[2] Pursuant to section 101 of the Summary Procedure Act 1921 (SA), indictable offences are charged on information.
Pursuant to section 43 of the Magistrates Court Act 1991 (SA), questions of law were referred in both matters by a magistrate of the Industrial Relations Court to the Full Court of the Industrial Relations Court of South Australia. As a result of the similarities in the referred questions, both referrals were heard at the same time. As Diemould and Santos sought to challenge an earlier Full Court decision, the Court on this occasion sat as a bench of five. The Full Court of the Industrial Relations Court determined that the challenges to the complaint and information should be dismissed and answered the questions referred appropriately.[3] Permission to appeal to this Court has been granted, pursuant to section 191 of the Fair Work Act 1994 (SA).
[3] Oaten v Diemould Tooling Services Pty Ltd and Markos v Santos Ltd [2007] SAIRC 44.
Central to the determination of these appeals is the construction of sections 19 and 22 of the Occupational Health, Safety and Welfare Act 1986 (SA). These provisions are in the following terms:
19—Duties of employers
(1) An employer must, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular—
(a) must provide and maintain so far as is reasonably practicable—
(i) a safe working environment;
(ii) safe systems of work;
(iii) plant and substances in a safe condition; and
(b)must provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and
(c)must provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health.
Maximum penalty:
(a) for a first offence—Division 2 fine;
(b) for a subsequent offence—Division 1 fine.
...
(3) Without derogating from the operation of subsection (1), an employer must so far as is reasonably practicable—
(a)monitor the health and welfare of the employer's employees in their employment with the employer, insofar as that monitoring is relevant to the prevention of work-related injuries; and
(b)keep information and records relating to work-related injuries suffered by employees in their employment with the employer and retain that information and those records for such period as may be prescribed; and
(c)provide information to the employer's employees (in such languages as are appropriate) in relation to health, safety and welfare in the workplace (including the names of persons to whom the employees may make inquiries and complaints about matters affecting occupational health, safety or welfare); and
(d)ensure that any employee who is to undertake work of a hazardous nature not previously performed by the employee receives proper information, instruction and training before he or she commences that work; and
(da)keep information and records relating to occupational health, safety or welfare training undertaken by any of the employer's employees during their employment with the employer; and
(e)ensure that any employee who is inexperienced in the performance of any work of a hazardous nature receives such supervision as is reasonably necessary to ensure his or her health and safety; and
(f)ensure that any employee who could be put at risk by a change in the workplace, in any work or work practice, in any activity or process, or in any plant—
(i)is given proper information, instruction and training before the change occurs; and
(ii)receives such supervision as is reasonably necessary to ensure his or her health and safety; and
(g)ensure that any manager or supervisor is provided with such information, instruction and training as are necessary to ensure that each employee under his or her management or supervision is, while at work, so far as is reasonably practicable, safe from injury and risks to health; and
(h)monitor working conditions at any workplace that is under the management and control of the employer; and
(i)ensure that any accommodation, or eating, recreational or other facility, provided for the benefit of the employer's employees while they are at work, or in connection with the performance of their work, and under the management or control of the employer (either wholly or substantially), is maintained in a safe and healthy condition.
...
22—Duties of employers and self-employed persons
(1) An employer or a self-employed person must take reasonable care to protect his or her own health and safety at work.
Maximum penalty: Division 7 fine.
(2) An employer or self-employed person must ensure, so far as is reasonably practicable, that any other person (not being an employee employed or engaged by the employer or the self-employed person) is safe from injury and risks to health—
(a)while the other person is at a workplace that is under the management and control of the employer or self-employed person; or
(b)while the other person is in a situation where he or she could be adversely affected through an act or omission occurring in connection with the work of the employer or self-employed person.
Maximum penalty:
(a) for a first offence—Division 2 fine;
(b) for a subsequent offence—Division 1 fine.
The Complaint and Information
The relevant terms of the complaint against Diemould are as follows:
On 5 June 2004 at Edwardstown in the State of South Australia, [Diemould], being an employer, failed to ensure so far as reasonably practicable that its employee Daniel Madeley was while at work safe from injury and risks to health.
(Contrary to section 19 Occupational Health Safety and Welfare Act 1986)
This is a summary offence.
Particulars:
1.[Diemould] was, at all material times, an employer of Daniel Madeley.
2.On 5 June 2004 Daniel Madeley was while at work exposed to risk of injury, and was fatally injured while operating a horizontal borer.
3.Plant: [Diemould] failed to provide and maintain so far as was reasonably practicable plant (namely the horizontal borer) in a safe condition in that:
(1) it failed to guard or fence the machine so as to prevent employees from coming into contact with its dangerous moving parts during continuous-run drilling operations;
(2) it failed to equip the machine with interlock devices to prevent employees from coming into contact with its dangerous moving parts during continuous-run drilling operations;
(3) it failed to relocate or shroud the machine’s continuous-run button, or otherwise prevent any possibility of accidental use of that button when attempting to use the machine in hold-to-run mode;
(4) it failed to equip the machine with sufficient or adequate emergency stop devices.
4.Safe systems of work: [Diemould] failed to provide and maintain so far as was reasonably practicable a safe system of work for employees using the horizontal borer in that:
(1) it failed to carry out an adequate hazard identification and risk assessment in order to develop appropriate risk control measures and in particular safe operating procedures;
(2) it failed to provide written safe operating procedures to employees using the horizontal borer -
(a) in the form of a sign displayed prominently by the machine; or
(b)in the form of documents supplied to employees using the horizontal borer;
(3) it failed to prescribe a safe distance from which the horizontal borer should be operated -
(a) during continuous-run drilling operations; or
(b) during set up operations;
(4) it failed to provide a system to ensure that employees’ operation of the horizontal borer at close proximity was restricted to hold-to-run mode;
(5) it failed to prohibit the wearing of loose-fitting dust coats by employees using the horizontal borer.
5.Information, Instruction, Training and supervision: [Diemould] failed to provide such information, instruction, training and supervision as was reasonably necessary to ensure that Daniel Madeley was, while using the horizontal borer at work, safe from injury and risks to health in that:
(1) training: [Diemould] failed to ensure that any training given by the first defendant to its apprentice employee Daniel Madeley was delivered by a qualified tradesperson experienced in the use of the horizontal borer.
(2) training: [Diemould] failed to ensure that Daniel Madeley had received adequate formal off site training prior to commencing duties on the horizontal borer, and in particular failed to ensure that Daniel Madeley had received formal training in the unit of competency entitled MEM7.13A – Perform machining operations using horizontal borer and/or vertical boring machines.
(3) training: [Diemould] failed to ensure that adequate assessment was provided in respect of Daniel Madeley’s use of the horizontal borer in that:
(a)it failed to ensure that Daniel Madeley’s work on the horizontal borer was assessed by a qualified workplace assessor;
(b)Daniel Madeley’s safety practices were not assessed by the first defendant by reference to his knowledge of or compliance with published safe operating procedures.
(4) training: [Diemould] failed to provide adequate training in health and safety matters to its safety officer Mitchell;
(5) supervision: [Diemould] failed to ensure that any employee (and in particular Daniel Madeley) who was inexperienced in the performance of work of a hazardous nature, namely the use of the horizontal borer, received such supervision as was reasonably necessary to ensure his safety;
(6) supervision: [Diemould] failed to ensure that any supervisor of Daniel Madeley was provided with such information, instruction and training as was necessary to ensure that Daniel Madeley was, while at work, so far as was reasonably practicable, safe from injury and risks to health.
The relevant terms of the information laid against Santos provide:
“On the 1st day of January 2004 at Moomba in the said State, [Santos], being an employer, failed to ensure so far as was reasonably practicable that its employee, namely Anton Otto Regner, was, whilst at work, safe from injury and risks to health.
Contrary to section 19(1) of the Occupational Health, Safety and Welfare Act 1986.
This is a summary offence.
Particulars
2.1At all material times, [Santos] operated a processing facility at Moomba in the said State (“the facility”).
2.2At all material times, Anton Otto Regner (“the employee”) was employed by defendant as an Instrument/Electrical Technician.
2.3As part of its operations, [Santos] was in charge of plant comprising the Liquids Recovery Plant (“the plant”), which included:
(a) heat exchangers known as Cold Box A and Cold Box B; and
(b) all components, fittings, pipes, valves and nozzles used in or in connection with the plant.
2.4The employee was exposed to a risk of injury whilst at work when an inlet valve in the said plant ruptured causing the release of mercury and various flammable gases which subsequently ignited.
2.5[Santos] failed to provide and maintain, so far as was reasonably practicable, plant in a safe condition in that it:
(a) failed to address or adequately address factors which affected the integrity of the plant, namely it failed to install a mercury removal system and/or it failed to take any or any adequate steps to control conditions and/or factors within the plant to minimise or avoid the risks associated with the presence of mercury; and/or
(b) failed to take any or any adequate steps to minimise any release of the gases or other substances in the event of a failure of the plant.
2.6[Santos] failed to provide and maintain so far as was reasonably practicable safe systems of work in that it:
(a) failed to undertake any or any adequate hazard identification and risk assessment of the plant; and/or
(b) failed to address or failed to adequately address the extent of the risks associated with the operation of the plant given the presence of the mercury; and/or
(c) failed to develop and/or implement any or any adequate system for inspection of the plant; and/or
(d) failed to develop and/or implement any system to adequately assess the results of any inspection and/or
(e) failed to develop and/or implement any adequate system for maintenance of the plant.”
The same charges were laid in respect to other employees, namely Hans Vogelpoel, Henry Szalacki, Michael Jones, Paul Karpluk, Arnis Luks, Russell Pertot, and Bruce McLeod. In each case the particulars state that, “the particulars … at paragraphs 2.3 to 2.6 are repeated”.
Section 51 addresses the joinder and separation of charges and provides:
(1)A person may be charged with any number of summary offences in the same complaint (either cumulatively or in the alternative) if the charges arise from the same set of circumstances or from a series of circumstances of the same or a similar character.
(2)The Court may direct that—
(a) charges contained in a single complaint be dealt with in separate proceedings; or
(b) charges contained in separate complaints be dealt with together in the same proceedings.
In S,[9] Gaudron and McHugh JJ traced the early history of the rule against duplicity:
The rule against duplicitous counts in an indictment originated as early as the seventeenth century ... It may be ... that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanour and felony was the difference between life and death. However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict. …
The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet.
[9] S v The Queen (1989) 168 CLR 266 at 284-285 (footnotes omitted).
In Walsh v Tattersall,[10] the High Court discussed and reviewed the principles applicable to the doctrine of duplicity. Kirby J outlined those principles and their rationale in detail. His observations, relevant to the present proceedings, included the following:
… The rule against duplicity has its origin in the history of English criminal procedure. It is a product of the accusatorial trial which has long insisted upon precision in the statement of the charge which the accused has to meet. Under the rule of precision, no one count of the indictment should charge the accused with having committed two or more separate offences ... . The rule has long been regarded by this Court as an important one. Even where the Court was satisfied that the accused, taking the point, had no substantive merits, except the legal merit of the objection to duplicity, the latter was held to be sufficient if the complaint as to form were made out. In that event, the count of the indictment would be bad for duplicity. It would have to be quashed.
...
… For the foregoing reasons of history, good prosecution practice and fair conduct of criminal trials, the general rule of our legal system is still this: that a prosecutor may not ordinarily charge in one count of an indictment, information or complaint two or more separate offences provided by law. In the present case, the Full Court recognised that this was the general rule and the preferable prosecution practice. So much is borne out by many authorities. But certain questions remain. They are: what exceptions to, or modifications of, the strict rule are allowed, and what is to happen where, as here, no objection is taken at the trial but only later on appeal?
… The apparent artificiality of insisting on applying the rule against duplicity in its full rigour has been highlighted by actual and theoretical instances that have arisen, or been contemplated, where criminal acts occurred in very close proximity to each other. If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count? If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England. If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible. Many of the apparently conflicting judicial opinions, so criticised by the commentators, represent nothing more than attempts by judges to characterise multiple acts upon which the prosecution relied and to decide whether or not they could be fairly viewed as the one transaction or criminal enterprise so as to escape an attack on the ground of alleged duplicity. The usual explanation given for adopting this approach is that, only by doing so, would the judges be able to avoid reducing the law to technical absurdity.
[10] Walsh v Tattersall (1996) 188 CLR 77 at 104, 107 (footnotes omitted).
The other members of the Court in Walsh v Tattersall discussed the issue of duplicity in terms that acknowledged Kirby J’s review of the authorities. However, the Court was divided on the extent of the need for precision in the criminal pleadings in that case. Gaudron and Gummow JJ agreed with Kirby J on the need for precision. Dawson and Toohey JJ did not see the need for such precision.
The Statutory Provisions
As earlier observed, the primary issue arising on this appeal concerns the terms of the complaint and information and whether patent duplicity arises. The starting point for consideration of the parties’ respective contentions is an examination of the relevant legislation.
The principal provisions of the Occupational Health, Safety and Welfare Act are sections 19 and 22. Other sections requiring analysis include sections 58, 59, 60 and 63.
The Construction of Sections 19 and 22 of the Occupational Health, Safety and Welfare Act
Section 19(1) of the Occupational Health, Safety and Welfare Act imposes a statutory duty or obligation on an employer with respect to matters affecting the health and safety of its employees. The scope and standard of the duty are defined by the statute. The section, by its express terms, provides that the duty is owed only by employers; it is owed in respect of each employee employed or engaged by the employer while that employee is at work; the duty is to keep the employee safe from injury and risks to health; and the standard is to “ensure [employee safety] so far as is reasonably practicable”.
In Chugg v Pacific Dunlop Ltd,[11] Dawson, Toohey and Gaudron JJ when addressing a similar Victorian provision commented:
The informant's argument also relied on the object of the Act, namely, the promotion of occupational health and safety, and on the command in s 35(a) of the Interpretation of Legislation Act 1984 Vic that “a construction that would promote the purpose or object [of the Act] ... shall be preferred to a construction that would not promote that purpose or object”. A similar consideration was taken into account in Nimmo. Lord Guest stated of the provision there under consideration:
The object of the section was to provide for a safe working place by imposing criminal and civil liability on the occupier in the event of breach. There is doubt as to the construction of this section. The question appears to me to depend upon which construction will best achieve the result to be attained, namely, to make and keep the working place safe.
The choice directed by s 35(a) of the Interpretation of Legislation Act is not as to the construction which “will best achieve” the object of the Act. Rather, it is a limited choice between “a construction that would promote the purpose or object [of the Act]” and one “that would not promote that purpose or object”.
[Emphasis added]
[11] Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 261-262 (footnotes omitted).
On the hearing of these appeals it was submitted by the appellants that sections 19(1) and 22(2) had to be read with section 58 to identify an offence. It was contended that section 58 was the operative section creating an offence. That section relevantly provides:
Offences
(1)A person who contravenes or fails to comply with a provision of this Act is guilty of an offence.
(2)A person who is guilty of an offence against this Act for which no penalty is specifically provided is liable to a Division 5 fine.
(3) Subject to this Act, offences against this Act are summary offences.
Even if this submission were to be accepted, when determining the elements of the offence or offences created, regard must be had to the terms of sections 19(1) and 22(2).
Counsel for Diemould submitted that on the proper construction of section 19(1), each and every separate and distinct failure of duty – that is each and every separate and distinct act or omission constituting such a failure – constituted an offence under the section. It was then contended that section 58 required each alleged breach of the obligations referred to in section 19 to be the subject of a separate charge.
Counsel for Santos advanced a similar contention. It was submitted that in enacting section 19(1), Parliament contemplated that a breach of the duty contained in the section could occur at different times on different occasions and in different ways. It was then suggested that the gist of the offence created by sections 19(1), 22(2) and 58 did not lie in a failure to ensure a state of affairs.
It was submitted that on the true construction of the sections each and every particular act or omission which amounted to a failure by an employer to provide the constant safe environment constituted a distinct offence. It was further submitted that section 19(1) first cast a general duty and then incorporated an exhaustive list of the general failures that would constitute a breach. It was said that the use of the words “in particular” demonstrated a clear and unambiguous intention of Parliament to identify the specific obligations which, if breached, would constitute a failure to comply with the general duty laid down in section 19(1).
It is to be observed that sections 19(1) and 22(2) each contain their own penalty provision. Section 30 of the Acts Interpretation Act 1915 (SA) relevantly provides:
(2)A penalty set out at the foot of a section or subsection that does not contain words creating an offence indicates that contravention of the section or subsection (whether by act or omission) constitutes an offence punishable on conviction by a penalty not exceeding the penalty so set out or, where a minimum as well as a maximum penalty is so set out, by a penalty not less than the minimum and not more than the maximum.
(3) In this section—
“penalty” includes punishment.
In Byrne v McLeod,[12] the High Court had occasion to consider section 3 of the Acts Interpretation Act 1904 (Cth) in terms that provide guidance as to the interpretation of section 30 of the South Australian Acts Interpretation Act. Dixon J, in the course of his judgment, set out the relevant terms of section 3:[13]
The penalty, pecuniary or other, set out – (a) at the foot of any section of any Act … shall indicate that any contravention of the section … whether by act or omission, shall be an offence against the Act, punishable upon conviction by a penalty not exceeding the penalty mentioned.
and later in the course of his reasons observed:[14]
By force of the Acts Interpretation Act 1904, sec. 3, however, the penalties imposed by secs. 68 and 69 indicate that any contravention of the sections shall be an offence against the Act punishable upon conviction by a penalty not exceeding the penalty mentioned.
[12] Byrne v McLeod (1934) 52 CLR 1.
[13] Byrne v McLeod (1934) 52 CLR 1 at 6.
[14] Byrne v McLeod (1934) 52 CLR 1 at 7.
In my view, having regard to the penalty set out in respect of each subsection, it is clear that both sections are offence creating provisions. I reject the submission that sections 19(1) and 22(2) do not, on their own terms, create an offence, and I reject the submission that any relevant offence was created by section 58 in conjunction with sections 19(1) and 22(2).
Counsel for the respondents contended that section 19(1) addressed a state of affairs rather than individual acts or omissions. It was argued that section 19(1) proscribed any state of affairs that exposed an employee to injury or risk to health and where such a state of affairs had been brought about by failure to take all reasonable steps to prevent that state of affairs coming into existence, a breach occurred.
Counsel further submitted that a particular state of affairs may have been brought about by any number of alleged omissions which, individually or cumulatively, brought about the state of affairs such as to amount to a breach of the single duty identified in section 19(1). It was further contended that section 19(1) created the one offence for any given work task or situation where there was a failure to take reasonable steps to ensure employees were safe from harmful effects to their person. It was said in particular that section 19(1) created the one offence – a failure by an employer to ensure so far as is reasonably practicable that each employee employed or engaged by the employer, while at work, is safe from injury and risks to health; and that such an offence was made out by the omission of the employer to provide one or more of those things required of it by paragraphs (a), (b) and (c) of section 19(1). A comparable submission was advanced with respect to section 22(2).
Many authorities were referred to the Court with respect to the interpretation of broadly comparable interstate legislation. However, on close examination, the terms of the legislation discussed in those authorities, although apparently similar to the South Australian provisions under consideration, were in fact materially different. Quite subtle changes in wording have led to different interpretations. Although some guidance may be obtained from these authorities it is only of a general nature. Ultimately the question is one of the construction of this State’s legislation and in particular sections 19(1) and 22(2).
As earlier observed, the purpose of section 19(1) is to compel employers to take preventative measures to ensure worker safety. The provision is designed to protect employees. The obligation on the employer is to ensure safety. That requirement is moderated by the limitation “so far as is reasonably practicable”. The statutory duty is a duty to protect against all risks to workers if the suggested protection is reasonably practicable. The statutory duty is breached when there is a failure by an employer to ensure safety in the terms of the section. No doubt an act or omission will give rise to the relevant failure but it is the failure to ensure safety that gives rise to the breach of duty. What particular act or omission or combination of acts and omissions, whether separately or collectively, give rise to the failure is a matter to be determined in each particular case. It is self-evident that circumstances may arise where a number of acts and omissions contribute cumulatively to a relevant failure.
It may also be observed that the section speaks of the obligation on the employer being “in respect of each employee”. This phrase is only to be found in section 19(1) of the Act. Elsewhere in the Act, and in particular in Part 3, references are made to any employer’s employees. The use of this language makes it plain that Parliament intended the employer to owe a separate duty under section 19 to each and every employee.
This analysis clearly suggests that section 19(1) of the Occupational Health, Safety and Welfare Act gives rise to the one offence with respect to each employee. In my view the construction contended for by the respondents is to be preferred. A similar construction was advanced concerning the interpretation of section 22(2), which I accept for the same reasons.
The Construction of Section 59 of the Occupational Health Safety & Welfare Act
The appellants relied on the terms of section 59 as providing support for the contention that every failure to comply with section 19(1) identified a separate and distinct offence. Section 59 relevantly provides:
Offence to endanger persons in workplaces
(1) A person is guilty of an offence if—
(a) the person, without lawful excuse, acts in a manner that creates a substantial risk of death or serious harm to another who is in a workplace; and
(b) the person—
(i) knew that his or her act or acts would create that risk; or
(ii)was recklessly indifferent about whether his or her act or acts would create that risk.
Maximum penalty:
(a) in the case of a natural person—imprisonment for 5 years or double the Division 1 fine;
(b) in the case of a body corporate or an administrative unit in the Public Service of the State—double the Division 1 fine.
(2) An offence against subsection (1) is a minor indictable offence.
(3) In this section—
act includes omitting to act.
The appellants submitted that there would be a need to add as a particular each and every reckless act and omission identified, and it was said that this demonstrated that separate and distinct offences are intended to be created. In my view this submission should be rejected. Section 59 has been amended since the Full Court of the Industrial Relations Court answered the questions reserved. Before amendment, this section created an aggravated offence. This expression is entirely neutral on the question of whether one or multiple offences were created. Section 59, in its present form, now penalises acting in a manner that creates a substantial risk of death, or serious harm, to another who is in the workplace – knowing or being recklessly indifferent as to whether this act or acts would create that risk. Insofar as assistance can be drawn from section 59 in its current form, it would suggest that the legislature is concerned with this state of affairs and as such would provide support for the construction of sections 19(1) and 22(2) that only one offence is created by each of the provisions.
The Construction of Sections 60 and 60A of the Occupational Health, Safety & Welfare Act
The appellants also relied on sections 60 and 60A. Those sections provide:
60—Continuing or repeated offences
(1)Where a person is convicted of an offence against this Act and after that conviction the act or omission of that person that constituted the offence continues, that person is guilty of a further offence.
Maximum penalty: Division 3 fine.
(2)Where a person is convicted of an offence against this Act, the court may, in addition to any penalty it may impose, order that person to take such steps as are specified in the order and within the time specified in the order to comply with this Act.
(3)If the person to whom an order is directed under subsection (2) fails to comply with the order within the time specified in the order, that person is guilty of a further offence.
Maximum penalty: Division 2 fine.
(4)Where in proceedings for an offence against this Act the court is satisfied that the accused—
(a) has previously been convicted of the same offence; and
(b) has on the present occasion wilfully repeated the act or omission constituting the offence,
the court must, in addition to any penalty it may impose for the offence, impose a penalty of not more than $40 000.
60A—Non-pecuniary penalties
(1)If a person is convicted of an offence against this Act, the court may, after taking into account any submissions and other relevant matters, in addition or in substitution for any penalty that it may impose—
(a) order the convicted person to undertake, or to arrange for one or more employees to undertake, a course of training or education of a kind specified by the court;
(b) order the convicted person to carry out a specified activity or project for the general improvement of occupational health, safety and welfare in the State, or in a sector of activity within the State;
(c) order the convicted person to take specified action to publicise the offence, its consequences, any penalty imposed, and any other related matter;
(d) order the convicted person to take specified action to notify specified persons or classes of persons of the offence, its consequences, any penalty imposed, and any other related matter (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the convicted person's conduct).
(2)The court may, in an order under subsection (1), fix a period for compliance and impose any other requirements the court considers necessary or expedient for the enforcement of the order.
(3)If the person to whom an order is directed under subsection (1) fails to comply with the order, that person is guilty of a further offence.
Maximum penalty: Division 4 fine.
In my view these sections are entirely neutral as to whether sections 19(1) and 22(2) create a single or multiple offences.
Section 22(2) – a separate duty owed to each employee
Section 22(2) of the Occupational Health, Safety and Welfare Act creates a separate duty from that identified in section 19(1). The reference in section 22(2) to “any other person” using the singular “person” rather than the plural “persons” suggests an intention to create a separate duty and thus a separate offence with respect to each other person whose health or safety the employer fails to avoid affecting adversely.
In Johnson v Miller,[15] the High Court was concerned with offences committed against section 209(1) of the Licensing Act 1932-1935 (SA), which provided that any licensee out of whose premises any person was seen coming during any Sunday except between certain specified hours would be guilty of an offence. The Court considered that this section gave rise to the one offence but that a separate offence was committed in respect of every person seen to leave the premises. Dixon J observed:[16]
The provision appears to me to impose upon the licensee for each person found upon or seen leaving the premises a distinct liability as for a separate offence.
Having made these observations, Dixon J went on to consider the use of particulars to provide the defendants with notice of the prosecution case:[17]
In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence. For example, if the court in the present case had proceeded with the hearing of the complaint and, after ascertaining what the defence was, had decided that evidence of similar acts ought not to be admitted, how could it have discovered which was the offence charged and which the similar acts? Moreover, there is an added reason why, in a charge under sec. 209 of the Licensing Act, the instance or person should be unmistakably identified. For the defences open to the licensee depend upon the purpose of the individual concerned or the manner and circumstances of his obtaining entrance to the premises.
There are more than one means by which the occurrence or transaction, the subject of the charge, may be identified and distinguished from other occurrences or transactions alleged to have occurred, equally capable of supporting the complaint. A direction may be given that particulars should be furnished: the complainant may be required to elect among the instances or transactions he proposes to prove and to state definitely to the court which of them is to be treated as the subject of the complaint: or the complaint may be amended so as to indicate one to the exclusion of the others. Although no statutory provision exists enabling courts of summary jurisdiction to require the furnishing of particulars, it is well recognized that they may do so if, as sometimes but probably not often happens, the interests of justice make it necessary (See Olding v. Olding ... , Boston v. Boston ... , per Evatt J. in R. v. Hush; Ex parte Devanny ... and in Davies v. Ryan ... , Frazer v. Barclay ... and, per Napier J., Stokes v. Grant ... ). In the same way the common-law practice of putting a prosecutor to his election has been considered applicable in summary proceedings. Amendment is authorized by sec. 183 of the Justices Act, but the complaint must be “defective”.
All three methods of dealing with the difficulty have one feature in common; they place upon the complainant the burden of indicating to or before the court which set of facts or transaction is the subject of the charge.
[15] Johnson v Miller (1937) 59 CLR 467.
[16] Johnson v Miller (1937) 59 CLR 467 at 483.
[17] Johnson v Miller (1937) 59 CLR 467 at 489-490 (footnotes omitted).
A similar approach may be taken to the construction of section 22(2). Further, Santos is entitled to proper particulars so that it will know how it is alleged that the separate offence with respect to each employee is said to be made out. This entitlement may be addressed by an order for further and better particulars in the event that the present particulars are inadequate.
The Complaint and the Information
Against this background I now return to the terms of the complaint against Diemould. Only the one offence is alleged. The complaint is drawn in terms of the general duty earlier discussed as arising under section 19(1) of the Occupational Health, Safety and Welfare Act. Then follow six particulars, a number of which are broken into sub-paragraphs. On their face, those particulars identify matters referred to in section 19 under the broad description of “Particulars”. The particulars to the complaint identify the failures by Diemould that are said to lead to the conclusion that Diemould failed to ensure so far as is reasonably practicable that its employee, Daniel Madeley, was while at work safe from injury and risk to health. If these particulars are in some way inadequate, then that question can be addressed by an appropriate application in the Industrial Magistrates Court. I do not consider that there is any defect in the complaint.
The information issued against Santos first alleges a breach of section 19(1) of the Occupational Health, Safety and Welfare Act. The information has identified the one offence created by the section. The eight counts on the information addressing a breach of section 19(1) in respect of eight separate employees is not defective. Each count raises a separate complaint. There is an appropriate joinder of the counts in the one information. The particulars provided with respect to each count would appear to be appropriate and relevant. Any challenge to the adequacy of those particulars can be addressed through an appropriate application in the Industrial Magistrates Court.
The counts that alleged breaches by Santos of section 22(2) of the Occupational Health, Safety and Welfare Act are not defective. Again, any question as to the adequacy of the particulars can be raised in the Industrial Magistrates Court.
For these reasons, both appeals should be dismissed.
Election and Amendment
Submissions were put to this Court as to the consequences that would follow in the event that the appellants’ submissions were accepted. The substance of the appellants’ submissions was that as the statutory period for the bringing of charges had expired, neither the complaint nor information could be amended to plead further charges. It was contended that the appropriate course was for the prosecution to elect as to the one count on which it wished to proceed and that all other alleged offences arising on the complaint and information were duplicitous and should be quashed.
The respondent submitted that if the appellants were correct in their construction of sections 19(1) and 22(2) and that the complaint and information involved duplicity then an amendment could be made to plead the several offences and the separate counts. All that would be required would be a re-paragraphing of the complaint and information. There would be, it was said, no substantive change. It was contended that both appellants were well aware of the allegations advanced and if the expression of those allegations involved duplicity, the simple re-paragraphing of the complaint and information would address the concerns about the form of the documents.
Having regard to my earlier conclusions that the sections in question relevantly create only the one offence, it is not appropriate to address and resolve what have become the hypothetical questions of election and amendment. For those issues to properly be addressed, the Court would need to know the precise terms of any proposed amendment before considering the detailed submissions advanced. Accordingly I would decline to answer the questions referred in regard to these issues.
Conclusion
Both appeals should be dismissed.
WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons.
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