Letter to the editor of the Sydney Morning Herald

25/05/2011

**On Monday, 23 May, Paul Sheehan wrote an opinion piece in the Sydney Morning Herald, regarding the role of the Industrial Commission of New South Wales. John Agius SC responded to the article with a letter to the editor, which was not published. That letter is reproduced below. **

Dear Editor,

Paul Sheehan perpetuated� a myth when he wrote today that the “occupational health and safety legal system” in New South Wales, “operates under a presumption of guilt by employers and innocence by employees”. The_ Occupational Health and Safety Act 2000_ creates no presumption of guilt against employers. The Act requires employers to ensure health and safety. The High Court and the New South Wales Court of Appeal have upheld the jurisprudence developed and laid down by the Industrial Court of NSW. Whilst the offences are of strict liability (and this is not uncommon in areas of law where public health and safety are concerned) the prosecution is still required to prove causation, that is, that the actions of, or more often, the failure to act by, an employer contributed to the risk to health and safety alleged. In addition� the legislation provides employers with a statutory defence: In short if an employer can prove on the balance of probabilities that it was not reasonably practicable to comply with the legislation or that the offence was caused by events over which it lacked control and against the happening of which it was not practicable to make provision then it is not guilty of the offence.

I am all in favour of a debate about the efficacy of Occupational Health and Safety law in New South Wales and its application by the Industrial Court, however, we need to have the facts correct to start with.

Yours faithfully, John Agius SC

**26 May 2011 **