John Holland Pty Ltd v Victorian Workcover Authority [2009] HCA 45

John Holland Pty Ltd v Victorian Workcover Authority [2009] HCA 45

Sections 21 and 23 of the Occupational Health and Safety Act 2004 (Vic) do not, as a matter of construction and as informed by s 4 of the Occupational Health and Safety Act 1991 (Cth), cease to apply to conduct of the plaintiff occurring prior to the plaintiff becoming a non-Commonwealth licensee. The federal Act does not purport to make exhaustive provision or exclude State law for alleged offences committed when the plaintiff was not an 'employer' (as defined) under the federal Act. Therefore, the plaintiff remains liable under State law for those earlier acts, and there is no operative inconsistency under s 109 of the Constitution.

Parties
Plaintiff: John Holland Pty Ltd; Defendant: Victorian Workcover Authority
Jurisdiction
Australia
Judgment Date
13 October 2009
Procedural Posture
Stated Case / Full Court Determination of Stated Case; Reserved Constitutional Questions
Outcome
Questions answered; orders made accordingly
Legal Topics
Inconsistency Between Commonwealth and State Laws, Operation of S 109 of the Constitution, Application of State OHS Law to Non Commonwealth Licensee, Prospective Vs Retrospective Operation of Safety Legislation
Constitutional Law Occupational Health and Safety Inconsistency Between Commonwealth and State Laws Operation of S 109 of the Constitution Application of State OHS Law to Non Commonwealth Licensee Prospective Vs Retrospective Operation of Safety Legislation

Case Brief

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Parties

John Holland Pty Ltd

Plaintiff

Victorian Workcover Authority

Defendant

Procedural Posture

Stated Case / Full Court Determination of Stated Case; Reserved Constitutional Questions

Legal Issues

  1. 1 Whether a company that becomes a 'non-Commonwealth licensee' after alleged State OHS offences are committed is liable under State law for those offences
  2. 2 Whether State OHS Act provisions empowering prosecution for pre-licence offences are invalid for inconsistency with Commonwealth law (s 109 of Constitution)

Ratio Decidendi

Sections 21 and 23 of the Occupational Health and Safety Act 2004 (Vic) do not, as a matter of construction and as informed by s 4 of the Occupational Health and Safety Act 1991 (Cth), cease to apply to conduct of the plaintiff occurring prior to the plaintiff becoming a non-Commonwealth licensee. The federal Act does not purport to make exhaustive provision or exclude State law for alleged offences committed when the plaintiff was not an 'employer' (as defined) under the federal Act. Therefore, the plaintiff remains liable under State law for those earlier acts, and there is no operative inconsistency under s 109 of the Constitution.

Court Disposition

Questions answered; orders made accordingly

Orders

  • Question 1: Yes.
  • Question 2: No.