May v Commonwealth

The case of *May v Commonwealth* concerned an appeal to the Court of Appeal of the Supreme Court of the Australian Capital Territory. The appeal arose from a prosecution against the Commonwealth for failing to comply with a health and safety duty under section 32 of the *Work Health and Safety Act 2011* (Cth). This duty was allegedly breached following the death of a helicopter pilot who fell into a crevasse at a fuel cache site in Antarctica. The Commonwealth had initially been convicted by a magistrate but was subsequently acquitted on appeal to a single judge of the Supreme Court. The prosecution sought to overturn this acquittal.

The Court of Appeal was required to determine two primary legal issues. Firstly, it had to consider whether the measures proposed by the prosecution to ensure the safety of workers at the fuel cache site were "reasonably practicable" within the meaning of the Act. This involved assessing the practicability of a measure referring to "minimal crevassing" and the capacity to interpret relevant satellite data. Secondly, the court considered whether a repetition of a suite of measures to determine the safety of the fuel cache site was reasonably practicable. The court also noted a jurisdictional question regarding the Supreme Court's power to hear a prosecution appeal against an acquittal on a Commonwealth summary offence, though this issue ultimately did not need to be decided.

The Court of Appeal reasoned that the meaning of "minimal crevassing" was uncertain and that there was insufficient evidence to establish the capacity to interpret the relevant satellite data. Furthermore, the court found that the proposed repetition of safety measures was not demonstrably reasonably practicable. Consequently, the Court of Appeal concluded that the acquittal of the Commonwealth by the single judge was not shown to be wrong. The appeal was therefore dismissed.