In a ‘back-to-the-future’ moment, the NSW Government tabled legislation this week to re-establish the Industrial Court of NSW and provide for it to again adjudicate work health and safety (WHS) prosecutions.

The re-establishment of the Industrial Court, which is part of a broader move to extend the jurisdiction of the specialist Industrial Relations Commission in NSW, recognises the decades of significant WHS jurisprudence that the Court developed before being abolished in 2016. Many decisions of the Court were cited in other state and territory courts when considering prosecutions in those jurisdictions. From 2016, the jurisdiction for hearing WHS prosecutions was transferred to the District Court, with a limited number of judges allocated to determine the matters.

But that is now to change. Assuming the legislation is passed, the specialist Industrial Court will resume its operations, likely early in 2024. The only WHS prosecutions that will remain with the District Court are the Category 1 charges brought against any individual, principally because of the potential for a custodial sentence being imposed.

The move back to the Industrial Court could potentially see a significant rise in the number of prosecutions able to be commenced because of increased court capacity. This change will also align with the increase in maximum penalties in NSW due to commence from July next year.