In an absolute first, and setting an interesting precedent, the South Australian Parliament has passed legislation to amend the Work Health and Safety Act 2012 (SA) (WHS Act). The changes widen the scope for employers to be prosecuted under the old Occupational Health Safety and Welfare Act 1986 (SA) (OHSW Act), even where the prosecution would have been out of time to begin legal proceedings.
The Minister now has the right to extend the two-year time limit on starting proceedings for a breach of the OHSW Act where earlier proceedings failed because of technical errors. This is the first time legislation has been passed to retrospectively overcome failed prosecutions. As a result, it is not surprising the amendment has generated significant debate in the community and was opposed by the Law Society of SA, Business SA and other key groups.
The legislation was introduced following an error made by SafeWork SA, when in late 2014 they issued legal proceedings that were signed by a person who didn't have authority to do so under the OHSW Act. The proceedings were therefore invalid. By the time SafeWork SA became aware of the issue, the time limit for filing the proceedings had expired, which meant SafeWork SA was unable to prosecute.
In order to address this issue, the retrospective legislation was passed. Sch 6 of the WHS Act now contains a new section (s 25A), which states that, in effect, the Minister may:
- extend the time limit for filing proceedings under the OHSW Act, and
- commence proceedings against a person even though they have previously been the subject of proceedings under the OHSW Act for the same matter but where such proceedings were withdrawn, discharged, dismissed or otherwise brought to an end.
The purpose of s 25A is to enable SafeWork SA to relaunch proceedings against employers who were the subject of earlier proceedings that had to be withdrawn due to technical errors. Section 25A does require the Minister to take into account the "interests of justice" when assessing whether to prosecute. However, it is likely that employers who were the subject of earlier prosecutions will be back before the Court in the near future.