State government accused of interfering in work safety prosecutions

Minister for Resources and Energy,
Chris Hartcher.
Photo: Dean Osland

The state government is being accused of attempting to shut down criminal prosecutions against employers with pending workplace safety cases.

The Herald was able to obtain internal documents which say three NSW ministers agreed to ask for legal advice on whether these cases should continue. The letter from the Minister for Resources and Energy, Chris Hartcher, on February 16, addressed to his department, asks “all prosecutions pending under the OH&S Act to be stayed pending the receipt and consideration of the advice of the Crown Solicitor and senior counsel.” It also said that he was able to get the agreement of Finance Minister, Greg Pearce, and the Attorney-General, Greg Smith.

WorkCover, which is the legal entity responsible for prosecuting employers for workplace breaches, tried to adjourn 22 cases in the NSW Industrial Relations Commission. The president of the commission, Justice Roger Boland, however did not adjourn nine of the cases after WorkCover said that it was unable to reveal why it was reviewing them.

“I do not understand the need for WorkCover to keep the purpose of the review, and its relevance to the charge that is before the court, secret,” said Judge Boland.

Adam Searle of the opposition said that the document obtained by the Herald shows that senior ministers tried to interfere in criminal prosecutions already before the court.

“This is an extraordinary intervention that could see employers, who have put their workers at risk, escape prosecution…” said Mr Searle.

“Governments can seek to change laws for the future, but Ministers should not involve themselves in decisions about whether or not individual companies or persons should be prosecuted.”

Mr Pearce denied allegations that he was responsible in directing WorkCover to conduct the review. He made it clear that the government asked WorkCover to “consider its prosecutions” in light of a 2009 High Court case in which the company involved challenged the interpretation of the act by the Industrial Court of NSW.

“Importantly, back in 2010 WorkCover, as a result of the Kirk decision and on advice of senior counsel and with the knowledge of the then minister [Michael] Daley, reviewed all prosecutions before the courts to determine whether any amendments to the charges were required,” said Mr Daley.

Mr Hartcher clarified that his letter to his department addressed concerns raised by the Kirk decision as well as its implication to the mining industry – as opposed to WorkCover.

“The government has not interfered. All it has done is ask for legal advice,” said Mr Hartcher.


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