Occupational Health and Safety Amendment (Sentencing Guidelines) Act 2000 (NSW)

An Act to amend the Occupational Health and Safety Act 1983 with respect to guidelines for the sentencing of persons convicted of occupational health and safety offences.

1Name of Act

This Act is the Occupational Health and Safety Amendment (Sentencing Guidelines) Act 2000.

2Commencement

This Act commences on a day or days to be appointed by proclamation.

3Amendment of Occupational Health and Safety Act 1983 No 20

The Occupational Health and Safety Act 1983 is amended as set out in Schedule 1.

Schedule 1Amendment

(Section 3)

Insert after Part 6:

Part 7Sentencing guidelinesDivision 1Interpretation56Definitions

In this Part:

Full Bench means the Full Bench of the Industrial Relations Commission in Court Session.

guideline judgment means a judgment of the Full Bench containing guidelines to be taken into account by the Industrial Relations Commission in Court Session, a Local Court, the District Court or the Supreme Court in sentencing persons convicted of an offence being:

• (a)

  guidelines that apply generally, or

• (b)

  guidelines that apply to particular courts (or the Industrial Relations Commission in Court Session) or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of persons convicted of an offence (but not to particular persons).

guideline proceedings means proceedings under section 57 on an application for a guideline judgment referred to in that section.

offence means an offence under this Act, the regulations or the associated occupational health and safety legislation.

State peak council has the meaning that it has in the Dictionary to the Industrial Relations Act 1996.

Division 2Applications for sentencing guidelines57Guideline judgments on application of Attorney General(1)

The Full Bench may give a guideline judgment on application of the Attorney General.

(2)

An application for a guideline judgment may include submissions with respect to the framing of the guidelines.

(3)

An application is not to be made in any proceedings before the Full Bench with respect to any particular person.

(4)

The powers and jurisdiction of the Full Bench to give a guideline judgment in proceedings under this section in relation to an offence are the same as the powers and jurisdiction that the Court of Criminal Appeal has to give a guideline judgment in a pending proceeding relating to an offence apart from section 37 of the Crimes (Sentencing Procedure) Act 1999.

(5)

A guideline judgment under this section may be given separately or may be included in any judgment of the Full Bench that it considers appropriate.

58Peak councils may intervene(1)

A State peak council, or a representative of a State peak council who is a legal practitioner, may appear in guideline proceedings.

(2)

Without limiting subsection (1), a State peak council or its representative may do either or both of the following:

• (a)

  make submissions with respect to the framing of the guidelines,

• (b)

  assist the Full Bench with respect to any relevant matter.

59Full Bench may give persons or organisations leave to appear(1)

The Full Bench may grant leave to any person, organisation or government department or agency (or a representative of any person, organisation, department or agency who is a legal practitioner) to appear in guideline proceedings.

(2)

Without limiting subsection (1), any person, organisation, government department or agency that is granted leave to appear (or its representative, if any) may do either or both of the following:

• (a)

  make submissions with respect to the framing of the guidelines,

• (b)

  assist the Full Bench with respect to any relevant matter.

(3)

This section does not apply to State peak councils.

60Alteration of guideline judgments

A guideline judgment given in proceedings under section 57 may be reviewed, varied or revoked in a subsequent guideline judgment of the Full Bench, whether made under that section or apart from it.

61Discretion of Full Bench preserved

Nothing in this Part:

• (a)

  limits any power or jurisdiction of the Full Bench to give a guideline judgment that the Full Bench has apart from section 57, or

• (b)

  requires the Full Bench to give any guideline judgment under section 57 if it considers it inappropriate to do so.

62Rules of Industrial Relations Commission

Rules of the Industrial Relations Commission may be made under the Industrial Relations Act 1996 with respect to applications, and proceedings to determine applications, under this Part.

Division 3Miscellaneous63Use of evidence in giving guideline judgments(1)

Nothing in section 12 of the Criminal Appeal Act 1912 or in section 163 (2) of the Industrial Relations Act 1996 limits the evidence or other matters that the Full Bench may take into consideration in giving a guideline judgment (whether or not on an application under this Part) and the Full Bench may inform itself as it sees fit.

(2)

The Full Bench must not increase a sentence in any appeal by reason of, or in consideration of, any evidence that is used by the Full Bench in giving a guideline judgment in the appeal but was not given in the original proceedings.