Following on from the Trad case (see previous post) a lower NSW Court recently considered the scope of section 167, National Law in Zaksaw Pty Limited v Department of Education; Giacchi v Department of Education. Zaksaw Pty Limited (an approved provider) and Ms Stefania Giacchi (a nominated supervisor) were each convicted in the Local Court of an offence under section 167, National Law. The criminal charges related to the operation of a kindergarten when a 9 month old baby came into contact with hot water because a jug of hot water had been placed on the ground. The baby suffered injury in the form of burns caused by the incident. This case before the District Court relates to an appeal against those convictions. There were two grounds of appeal:
The first ground was that the “magistrate incorrectly applied a statutory duty to ensure that “every reasonable precaution is taken” as a duty to ensure a state of safety in its attribution of the acts of employees to employers”.
The second ground argued that “the magistrate incorrectly applied the reasoning in ABC Development Learning Centres case to the legislation in which the offence provision arises in determining the availability of the “reasonable steps” defence”.
In relation to the first ground, the Court stated that (paras. 103-7):
Paragraphs [120] and [121] in Trad in respect of s 165 apply to s 167. Therefore, I consider that the legislature has made it clear that the approved provider and the nominated supervisor are to be held liable for any transgression from circumstances which do not satisfy “every reasonable precaution”.
I accept the respondent’s interpretation that the state of affairs that must be ensured is every reasonable precautions. The precaution particularised by the prosecutor in the court attendance notice must be reasonable (27/2/24; T9.32-41).
I therefore construe s 167 as an absolute liability offence. The liability under s 167(1) and (2) is that “the actus reus of the offence is in essence the occurrence of a state of affairs (i.e., where there may be no act or omission on the part of the person made liable for the state of affairs in question; simply the conclusion that because the state of affairs has arisen there has been a failure to ensure or guarantee that this not occur)”: Trad at [92].
Therefore, for the above reasons, I conclude that the magistrate did not incorrectly apply a statutory duty to ensure that “every reasonable precaution is taken” as a duty to ensure a state of safety in its attribution of the acts of employees to employers.
The first ground of appeal is not made out and is dismissed.
In relation to the second ground, the Court said (paras. 122-6, 128-31):
I accept the respondent’s submission that it is important that the proper analysis of s 167 is not whether there had been an unreasonable failure to take precautions, but rather whether there was a failure to ensure, that is to make sure, that all reasonable precautions were in fact taken to prevent harm or hazard.
The focus of the determination is not on the reasonableness (or otherwise) of the failing. Rather, as the respondent submitted, the focus is on whether the identified precaution is reasonable to take. If the precaution is reasonable for the approved provider and/or nominated supervisor to take, then the obligation imposed by s 167 is that that precaution must be taken, otherwise criminal liability attaches to the failure to meet that statutory obligation.
I accept the respondent’s argument that it is erroneous to focus on the steps that were taken, which is the premise of the appellants’ submission, as this directs attention to the reasonableness of not taking a precaution, rather than the reasonableness of the precaution itself.
I am satisfied that the proper analysis of s 167 is not whether there had been an unreasonable failure to take precautions but rather whether there was a failure to ensure all reasonable precautions were in fact taken to prevent any hazard likely to cause injury. The magistrate’s interpretation and application of the provision is correct, and it is consistent with the approach taken in Trad.
Applying Trad, the relevant offences under s 167 attract absolute liability. Such offences do not have available to them a “reasonable steps” defence. The magistrate did not err in her Honour’s application of s 167...
I accept the respondent’s submission that although the magistrate did not expressly address whether appropriate training regarding hot water risks was a “reasonable precaution”, this is in the context of the appellants’ contention that all educators were properly trained. I accept that the magistrate’s finding as to the lack of training of both Ms Balloot and Ms Sayed as they failed to understand the policy that the hot water was to remain at adult height (8/11/22 T 14.12). This led to the magistrate finding that there was a deficiency in the training program as at October 2019 (8/11/22 T14.20). There is no error in her Honour’s findings which were open to the learned magistrate.
Therefore, the magistrate did not incorrectly apply the reasoning in ABC Development Learning Centres case to the legislation in which the offence provision arises in determining the availability of the “reasonable steps” defence.
I follow the reasoning of Ward P in Trad that “[i]t follows, in light of what was explored by the Victorian Court of Appeal, alongside my own analysis, that the decision in ABC Developmental Learning cannot be said to be plainly wrong and, given that the National Law follows the equivalent Victorian legislation, it compels the conclusion that the s 165(2) offence is one of absolute liability”; at [128]. Wallace also compels the conclusion that the s 167 (1) and (2) offences are ones of absolute liability.
The second ground is not made out and is dismissed.
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