The Industrial Court has the power to grant leave for prosecuting agencies to commence prosecutions for offences under the Work Health and Safety Act 2011 (NSW) (“WHS Act”) outside the two-year limitation period if the Court believes it is in the interests of justice to do so.
Prosecuting authorities such as SafeWork NSW and the NSW Resources Regulator can seek leave to bring prosecutions outside the limitation period. Registered organisations with affected workers concerned in the matter to which proceedings relate can also seek leave to bring such prosecutions.
The Court will consider whether it is in the interests of justice for leave to be granted and the prosecution to be commenced.
Criminal Practice Note 1 outlines the procedure that the Court will follow in dealing with these applications. In summary, prosecuting authorities must file an Industrial Court Form 6 “Application for leave to commence proceedings for a summary offence outside the limitation period in the Industrial Court of New South Wales” and a summons.
Once the Form 6 has been filed, the President will allocate the matter to a judge who will list the application for a directions hearing within 3 weeks of its filing date. At the directions hearing, the matter will be listed for hearing to determine the question of leave as a threshold question, and a timetable will be made for submissions and the filing of evidence. If leave is granted, the summons will be made returnable on the Monday following 8 weeks from the date of judgment.
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