Prosecutions for most offences against the Work Health and Safety Act 2011 (NSW) (WHS Act) are subject to a two year limitation period. While many have believed that prosecutions must be commenced within two years of an incident or the offence occurring, a recent decision has confirmed that view is not correct.

In SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17, the District Court of NSW confirmed that the two year limitation period in section 232(1) of the WHS Act runs from the time when an offence first comes to the regulator’s attention, and that this may be well after the date of the offence or the date that the regulator first becomes aware of some evidence of an offence.

Legislative context

The limitation period in s 232 of the WHS Act provides:

  • Proceedings for an offence against this Act may be brought within the latest of the following periods to occur—
    • within 2 years after the offence first comes to the notice of the regulator,
    • within 1 year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act,

…

[our emphasis]

Although relevant to nearly every prosecution brought under the WHS Act, section 232 has not previously been considered by the courts in any detail.[1]

Background facts

On 30 March 2023, SafeWork NSW commenced two prosecutions alleging that Prime Marble & Granite Pty Ltd (Prime) failed to comply with its work health and safety duty under section 19(1) of the WHS Act during the period 5 February 2015 to 1 April 2018 and 11 July 2012 and 1 April 2018, respectively.

The specific allegation was that Prime failed to ensure, so far as was reasonably practicable, the health and safety of workers at work in its business, and the failure to comply with that duty exposed two workers (the Workers) to high levels of crystalline silica when working with manufactured stone products, giving rise a risk of death or serious injury, from silicosis, contrary to s 32 of the WHS Act.

On 4 December 2023, Prime filed a notice of motion seeking orders dismissing the proceedings because, in Prime’s submission, SafeWork NSW commenced the prosecutions outside of the two year limitation period.

When did the offence first come to the notice of SafeWork NSW?

The court was required to consider whether the offence first came to the notice of SafeWork NSW before 30 March 2021, being the date two years prior to the commencement of the proceedings.

In support of its notice of motion, Prime led evidence of the various interactions it had with SafeWork NSW including a workplace hygiene monitoring report dated 20 November 2017 prepared by SafeWork NSW following its inspection of Prime’s premises, and an improvement notice issued by SafeWork NSW dated 20 April 2018 which alleged Prime was contravening section 19 of the WHS Act, and directing Prime to “reduce airborne [respirable crystalline silica dust (RCS)] concentrations and prevent exposure”.  While those documents referred to the relevant risk, being the exposure of workers to respirable crystalline silica, they did not refer to the specific Workers.

SafeWork NSW’s evidence, comprising of affidavit evidence of three SafeWork NSW inspectors, detailed its interactions with Prime. In particular, the evidence demonstrated that:

  • SafeWork NSW was not aware of the existence of either of the Workers prior to the receipt on 3 February 2021 of a NSW Ministry of Health Silicosis Notification in respect of one of the Workers (who had died on 7 June 2020). That notification, however, did not connect the Worker’s illness and subsequent death to his employment with Prime, nor refer to the second Worker;[2]
  • On 31 March 2021, SafeWork NSW received documents from iCare evidencing that:[3]
    • the first Worker was employed by Prime;    
    • the first Worker’s illness and subsequent death was attributable to his exposure to crystalline silica dust during his employment;
  • On 17 May 2021, SafeWork NSW received further documents from iCare evidencing that the second Worker had also been exposed to crystalline silica dust.[4]

Russell SC DCJ held that an offence in respect to the first Worker had not come to the attention of SafeWork NSW until it received documents from iCare on 31 March 2021, being when SafeWork NSW became aware that the first Worker had been exposed to the relevant risk. Similarly, the offence with respect to the second Worker was held to have not been brought to the attention of SafeWork NSW until 17 May 2021.

In reaching that conclusion, Russell DCJ said that it was not until SafeWork NSW “became aware of the three elements of the offence required under s 32 of the WHS Act” that it was notified of an offence.[5] It was not sufficient that SafeWork NSW was aware that air monitoring of Prime’s workers revealed levels of RCS exceeding prescribed levels. It was also necessary for SafeWork NSW to be aware that each Worker had been exposed to the RCS on a long-term basis as the risk of silicosis only arises from long-term exposure and not exposure on only one day.

It followed that the prosecutions were found to have been commenced in time, and Prime’s notice of motion was dismissed.

Key takeaways

Businesses and other duty holders under the WHS Act cannot simply assume that they are immune from prosecution for conduct that is more than two years old.

The two year limitation period in section 232(1) of the WHS Act runs from the time when an offence first comes to the notice of the regulator, specifically, when the regulator is aware of all elements of the relevant offence. That date may be well after the date of the offence, the issue of a related improvement notice, or the date that the regulator first became aware of some evidence of an offence.

While the decision in SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17 considers the language of the WHS Act in force in New South Wales, near-identical provisions exist in equivalent model WHS Acts across Australia and are likely to be interpreted in a similar manner (save for Queensland, where the person who must have notice of the offence is a single lawyer, the WHS Prosecutor, rather than the regulator).

To discuss this matter, or any other matters relating to work health and safety law, contact a member of our team here.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

[1] In SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117, the District Court, at [21]-[23], concluded that whether proceedings for an offence against the WHS Act are brought within two years after the offence first comes to the notice of the regulator is a “simple factual determination” but did further examine when that time period is said to commence running.

[2] SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17at [49]-[51].

[3] SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17at [53]-[54].

[4] SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17at [55].

[5] SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17 at [55].