The establishment of the Industrial Court of NSW just over 12 months ago has marked a significant shift in the handling of work health and safety (WHS) prosecutions in the state. In assuming jurisdiction from the District Court for these matters, the Industrial Court has brought with it procedural reforms, and in the few decided cases, a familiar approach to sentencing. In summary, the Industrial Court has already demonstrated stylistic and procedural differences in determining prosecution cases.
Core sentencing approach
Unsurprisingly, the Industrial Court continues to apply the “instinctive synthesis” approach, weighing objective seriousness, aggravating and mitigating factors and deterrence, following established precedents in the reasoning process.
Foreseeability of risk, the ease and low cost of preventative measures and the importance of guidance material in setting the standard of care continue to be a priority. Also, the strong emphasis on general deterrence, often moderated with specific deterrence by post-incident remedial steps, plays a significant part in the sentencing process. In essence, the Industrial Court has not deviated from the core legal framework applied by the District Court.
This is welcome news as many years of established precedent in the District Court will help both SafeWork NSW (the Regulator) and the Person Conducting a Business or Undertaking when trying to determine where an incident may fall in regard to objective seriousness. We continue to see objective seriousness being assessed primarily through:
- foreseeability of the hazard/risk;
- severity of potential harm; and
- ease of available control measures.
This approach stresses that even infrequent hazards demand control where consequences are grave and preventative steps are simple.
Recent criticism of prosecutorial pleading practices
One recent procedural issue has been highlighted by the Industrial Court in the case of SafeWork NSW v Leichhardt Pty Ltd [2025] NSWIC 5 concerning the Regulator’s approach to pleading multiple particulars arising from the same operational failing. Particulars in a charge specify the way(s) the prosecutor alleges the defendant failed to abide by its duty so far as reasonably practicable. They usually take the form of various control measures the defendant should have followed or implemented to manage the alleged risk.
His Honour President Taylor noted that it is too common in SafeWork NSW proceedings that in addition to a primary particular of failure there are a series of further particulars which effectively repeat the same failing or make no significant difference to the overall culpability. In this case, President Taylor placed little to no weight to the additional repeated and irrelevant particulars when determining objective seriousness.
It is our view that these types of ‘precedent’ particulars adopted by the Regulator in WHS proceedings only complicate and draw out plea negotiations and can lead to disputed facts which further delay the process, take up more of the courts’ time and increase the defendant’s costs. This recent comment by President Taylor hopefully has the effect of influencing how the regulator drafts its charges in the future, preferably leading to more concise and relevant failings pleaded in the charge.
Effects of the updated Practice Note
A major procedural change in the Industrial Court was the implementation of the new Criminal Practice Note No. 1 for WHS proceedings. This focuses on a three-mention structure where if no plea is entered by the third mention, the Industrial Court can proceed on the basis that the matter will take place as a defended hearing and the defendant may lose the benefit of the 25% utilitarian discount that would otherwise be available on a plea of guilty. The intention is to ensure that matters are dealt with as expeditiously as possible.
This has placed pressure on both the prosecutor and defendants to negotiate and resolve matters in weeks, not months. In practice we have witnessed difficulty from both defendants and the prosecutor in meeting this timeframe set by the Industrial Court. However, in circumstances where there is an adequate explanation as to delay, the Industrial Court has been amenable to providing the parties with more time to come to a negotiated outcome, leaving the discount intact.
The procedural expectations are designed to expedite cases, reduce uncertainty and promote discipline. However, they also intensify the speed at which both sides must be ready to commit to positions on plea and evidence, again raising the risk in defendants preserving plea discounts.
Implications
The transition to the Industrial Court has not revolutionised sentencing outcomes as WHS offences remain substantial, deterrence-driven and anchored in established authority. But the procedural environment has changed markedly. Defence practitioners now face:
- greater urgency in analysing the brief and advising on the charge(s);
- increased importance of engaging with the Regulator early to refine or challenge particulars; and
- the need to adapt to prescriptive timetabling, especially for defended hearings where expert evidence and agreed facts must be organised well in advance.
For prosecutors, the compressed timeframes create equal pressure to finalise facts and respond to representations swiftly. It is also likely they face additional pressure due to President Taylor’s comments in Leichhardt.
Our WHS team will continue to provide updates on trends as decisions are published.
The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation’s circumstances.