Chapter heading 1

TABLE 16: Courts with jurisdiction over breaches of duties of care

Jurisdiction	Court or Tribunal with jurisdiction over proceedings for a breach of a duty of care	Appellate Court or Tribunal	Appeal to High Court
NSW	Local Court constituted by a Magistrate: OHSA 2000, s.105 Industrial Relations Commission in Court Session: OHSA 2000, s.105	Industrial Relations Commission in Court Session: OHSA 2000, s.105, Industrial Relations Act 1996, s.197A	No
Vic	Magistrates Court: Magistrates Court Act1989, s.26(4), Sch. 4, cl. 53. County Court: County Court Act 1958, s.36A	County Court: Magistrates Court Act 1989, s.83. Supreme Court, Supreme Court Act 1986, s.10	Yes
Qld	Magistrates Court: WHSA 1995, s.164	Industrial Court: Industrial Relations Act 1999, s.248	No
WA	Magistrates Court (‘safety and health magistrates’): OSH Act 1984, ss.51B, 51C, 52.	Supreme Court, Supreme Court Act 1935, s.20, OSH Act 1984 , s.54B	Yes
SA	Magistrates Court, Magistrates Court Act 1991, s.9^343 Industrial Court	Supreme Court, Supreme Court Act 1935,	Yes
Tas	Magistrates Court	Supreme Court	Yes
NT	Court of Summary Jurisdiction: Justices Act	Supreme Court, Supreme Court Act, s.14, Justices Act, s.163.	Yes
ACT	Magistrates Court: Magistrates Court Act 1930, s.19	Supreme Court: Supreme Court Act 1933, s.20, Magistrates Court Act 1930, s.207	Yes
Cwth	Civil proceedings - Federal Court of Australia or State or Territory Supreme Court: OHSA 1991, Sch. 2, cl.1 Criminal proceedings – State or Territory Court with jurisdiction	Full Federal Court or Appellate Court for Supreme Court Appellate Court in State or Territory concerned	Yes

2. 
   The grounds of appeal are broadly similar under the various Acts. NSW is the only state to provide in its OHS Act for a right of appeal from an acquittal.³⁴⁴ Only NSW and Qld do not have appeals to their Supreme Courts and hence no appeal to the High Court of Australia.³⁴⁵
   

Stakeholder views

3. 
   The ACCI suggested that the ordinary processes of appeal should lie, which was a reason for not having ‘idiosyncratic’ tribunals dealing with matters.³⁴⁶ The South Australian Government proposed that appeals lie to a Judge of a higher court for breaches of duties.³⁴⁷ The Law Council of Australia and a separate group of NSW based legal practitioners both suggested that the model Act should enable appeals to lie to the High Court of Australia.³⁴⁸
   

Discussion

4. 
   We understand that the right of appeal from an acquittal in NSW has been rarely used and we do not consider that such an arrangement should apply to acquittals under the model Act.³⁴⁹
   
5. 
   In the interests of harmonisation, we consider that the appeal provisions should be uniform. Consistency in the application of the laws would be strengthened by having an appeal structure that gave access in all cases (subject to the normal leave requirements) to the High Court of Australia. This has implications for the existing arrangements in some states, where the final court for appeals is not one from which appeals lie to the High Court. We do not consider it appropriate to recommend whether there should be any changes to the provisions that stipulate the courts which hear prosecutions at first instance. This is a matter that would require broader consideration by the governments concerned. On the other hand, we are proposing that the final appeal within each State and Territory be to a court from which a further appeal can lie to the High Court. This is a matter that could be addressed within the states concerned.