John Holland Pty Ltd v Inspector Nathan Hamilton [2009] HCA 46

John Holland Pty Ltd v Inspector Nathan Hamilton [2009] HCA 46

The relevant provisions of the Commonwealth and State OHS statutes are not inconsistent as per s 109 of the Constitution in the circumstances; accordingly, the State charges are not invalid, and the Industrial Court of New South Wales retains jurisdiction to hear and determine the proceedings.

Parties
Applicant: John Holland Pty Ltd; Respondent: Inspector Nathan Hamilton; Respondent: Anor
Jurisdiction
Australia
Judgment Date
13 October 2009
Procedural Posture
Application for Removal to High Court / Orders on Removal Applications
Outcome
Applications for removal granted; declarations made that the State charges are not invalid and that jurisdiction remains; applicant to pay costs of the removal applications.
Legal Topics
Inconsistency Between Commonwealth and State Laws, Prosecution of OHS Offences, Effect of S 109 Constitution
Constitutional Law Occupational Health and Safety Law Inconsistency Between Commonwealth and State Laws Prosecution of OHS Offences Effect of S 109 Constitution

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Parties

John Holland Pty Ltd

Applicant

Inspector Nathan Hamilton

Respondent

Anor

Respondent

Procedural Posture

Application for Removal to High Court / Orders on Removal Applications

Legal Issues

  1. 1 Whether State occupational health and safety offence provisions are invalid under s 109 of the Constitution when the employer becomes a non-Commonwealth licensee after commission of the offence but before prosecution
  2. 2 Whether the State court has jurisdiction to hear State OHS charges in such circumstances

Ratio Decidendi

The relevant provisions of the Commonwealth and State OHS statutes are not inconsistent as per s 109 of the Constitution in the circumstances; accordingly, the State charges are not invalid, and the Industrial Court of New South Wales retains jurisdiction to hear and determine the proceedings.

Court Disposition

Applications for removal granted; declarations made that the State charges are not invalid and that jurisdiction remains; applicant to pay costs of the removal applications.

Orders

  • Pursuant to s 40(1) of the Judiciary Act 1903 (Cth), remove part of the cause pending in the Industrial Court of New South Wales in proceeding No IRC 1989 of 2007 and No IRC 1990 of 2007 relating to the relevant declarations and consequential relief.
  • Declare that the charge made by Inspector Nathan Hamilton is not, by reason of the OHS Act 1991 (Cth) and s 109 of the Constitution, rendered invalid, null or void, and that jurisdiction of the Industrial Court of NSW is preserved.