Implications of the High Court’s decision in Kirk 16 April 2010

1. Implications of the High Court’sdecision in Kirk16 April 2010 Malcolm Davis Partner

2. The facts - Kirk • Mr Kirk was the Managing Director of Kirk Holdings, which owned a rural property known as Razorback Farm. • Mr Kirk was unwell and was not actively involved in the management of the farm – he treated the farm as his private residence and lived there with his wife. • Kirk Holdings employed a part-time farm manager [Mr Palmer]. • It was accepted by the Courts that Mr Palmer was an experienced farm manager, with experience in the operation of motorcycles and had been actively involved in the installation of an access road on the farm and the purchase of farm equipment, including an ATV.

3. The facts - Kirk • On 28 March 2001, the farm manager towed 3 lengths of heavy steel attached to the rack of the ATV, rather than the tow bar. • He travelled down a steep hillside “cutting the corner” of a formed, graded road to deliver steel to a fencing contractor who was working in another field. • The ATV rolled and the farm manager was killed. • WorkCover inspectors investigated the incident and instituted proceedings against Kirk Holdings and Graeme Kirk in his capacity as Managing Director of Kirk Holdings.

4. The facts - Kirk • The prosecutions were heard in the Industrial Court of NSW, initially by Justice Walton. Justice Walton convicted the company and Mr Kirk for breaches of the OH&S Act (NSW). • An appeal was lodged in the Court of Criminal Appeal and Court of Appeal. • The appeal to the Court of Criminal Appeal was dismissed on the basis that there was no right of appeal to that Court.

5. The facts - Kirk • The appeal to the Court of Appeal denied relief on the basis that the questions raised were appropriate to be raised before a Full Bench of the Industrial Court of NSW and that those matters should be agitated before the Industrial Court before being entertained by the Court of Appeal. • The company and Mr Kirk then sought leave to appeal to the Full Court of the Industrial Court. • The Full Court declined leave to appeal except in respect of one issue. In respect of that issue, the appeal was dismissed. • The company and Mr Kirk then sought special leave to appeal to the High Court. • On 1 May 2009 special leave was granted.

6. The arguments advancedHigh Court • The arguments advanced in the High Court included: • The legal obligation as interpreted by the Industrial Court of NSW (arising from s.15 of the OH&S Act (NSW)), made the criminal law incapable of compliance and it was therefore contrary to the rule of law and contrary to the Australian Constitution. • The Industrial Court’s interpretation of the obligation was that an employer was required to ensure that a certain state of affairs existed at all times.

7. The arguments advancedHigh Court • While the statutory surface of s.15 was laudable, it was impossible [in practice] to achieve in industries such as: • Policing • Aviation • Shipping • Road transport • Farming, etc. • The defendant would not know what it was that they had allegedly failed to do until the cross examination of their witnesses. • A right of appeal by special leave to the High Court arises from the Industrial Court - if not, then the Industrial Court is a specialist court that sits outside the hierarchy of Australian courts and is left as an island of independent criminal jurisdiction.

8. The legislative obligation and the form of the charge (post-Kirk) - NSW Form of “charge” • The general approach to drafting of charges (pre-Kirk) under the OH&S Act (NSW) has been to assert, by reference to the relevant section of the OH&S Act, that the Defendant has allowed a particular “state of affairs” to arise, i.e. if it were a charge alleging a breach of s.15 of the 1983 Act, that the Defendant did not provide a place of work that was free from risk to health and safety. • What Kirk requires however is that even though a Defendant may fail to attain the state of affairs called for by the statute, that failure will not constitute an offence unless the complainant can identify (and prove beyond reasonable doubt) some act which the Defendant has committed or some measure which he has failed to take which would have ensured that the statutory state of affairs was achieved.

9. The legislative obligation and the form of the charge (post-Kirk) - NSW • In light of the decision in Kirk, Defendants are seeking to maintain that the elements of the charge under s.8 of the OH&S Act (NSW) are as follows: (a) The defendant must have been an employer at the time of the alleged offence; (b) That a risk arose; (c) That the risk was caused by an specific acts or omissions of the Defendant; (d) That employees were exposed to the risk; and (e) That there were practicable steps or measures available to the Defendant which would have obviated or eliminated the risk and that the Defendant failed to take these steps or implement these measures at the relevant time of the risk.

10. The legislative obligation and the form of the charge (post-Kirk) - NSW • The elements set out above differ to those which the Industrial Court of NSW previously adopted for defences under s.8(1) of the OH&S Act. • The elements for s.26 of the Act are as follows: (a) A corporation exists; (b) The corporation has contravened the Act as set out above; (c) The person the subject of the charge is a director or person concerned in the management of the corporation; (d) That the person was in a position to control or influence the corporation with respect to the act or omission; (e) That the person did not take steps to ensure the company did not do the act or omission in question and was thereby not duly diligent.

11. Other issues considered by Kirk • The invalidity of a conviction based on evidence given by the defendant contrary to the provisions of the Evidence Act – s.17(2) provided that a Defendant is not competent to give evidence as witness for prosecution – no power of Industrial Court of NSW to dispense with this requirement. • The hierarchy of Courts in Australia and in particular the constitutionally protected role of the Supreme Courts of the States to supervise and grant relief from specialist State Courts that engage in jurisdictional error. • The limited operation of “Privative Provisions” in State legislation, such as s.179 of the Industrial Relations Act (NSW) – a State legislation cannot validly remove a State Supreme Court’s power to grant relief from specialist State Courts that engage in jurisdictional error.

12. Post-Kirk developments in Queensland [OH&S] - Pryme Constructions • Inspector Garaty v Pryme Constructions Pty Limited [Alleged breach of WH&S Act (Qld)] - Industrial Magistrates Court of Qld (Southport) Facts: • The case involved an allegation of breach of s.24(1) of the WH&S Act (Qld). • The charge alleged that Pryme, being a relevant person who conducted a business undertaking, failed to ensure the health and safety of other persons was not affected by the conduct of its business or undertaking.

13. Post-Kirk developments in Queensland [OH&S] - Pryme Constructions • S.37 of the WH&S Act sets out certain defences. • Arguing Kirk, it has been submitted that in order to establish a defence to the charge under the WH&S Act, the charge itself must identify the acts or omissions that are the factual basis said to constitute the contravention of s.24(1). • The decision is reserved.

14. Post-Kirk developments in NSW[Non-OH&S] - Department of Health • Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47 (22 March 2010) Facts: • Ward orderly employed by the Department of Health took a photograph of a naked two-year-old patient. • The orderly was summarily dismissed. • Unfair dismissal proceedings were instituted in the Industrial Commission of NSW. At first instance her Honour Justice Schmidt dismissed the application, finding that the dismissal was not unfair. • The orderly appealed to a Full Bench of the IRC.

15. Post-Kirk developments in NSW[Non-OH&S] - Department of Health • The Full Bench of the IRC upheld the appeal and ordered that the orderly be “re-employed” in his “former position”, effective from the date of the decision on condition that he would not return to work and that he would resign in writing effective from the day immediately following the date of the decision. The effect of the second part of the order was that the dismissed employee would be fully paid for the period from the date of his dismissal until his resignation (almost 2 years pay). • The Department of Health sought relief in the NSW Court of Appeal. • The matter was heard by the Court of Appeal before the decision in Kirk was handed down - the Court of Appeal reserved its decision.

16. Post-Kirk developments in NSW[Non-OH&S] - Department of Health • After the decision in Kirk was handed down, the Court of Appeal invited the parties to make further submissions in relation to the impact of the Kirk decision. • It was held by the Court of Appeal that the Hickman principles were no longer relevant in circumstances where the IRC’s decision involved “jurisdictional error”. • The Court of Appeal found that s.89 of the Industrial Relations Act 1996 did not empower the IRC to make an order for re-employment to a former position (such an order was, in effect, reinstatement) when the findings of the IRC had been that reinstatement was impracticable and inappropriate because of the lack of trust between the Applicant and the former employer.

17. Post-Kirk developments in NSW[Non-OH&S] - Department of Health • Applying Kirk to the circumstances, the Court of Appeal determined that the IRC had acted beyond its jurisdiction and so made orders: • quashing the decision of the Full Bench of the IRC; and • remitting the matter back to the IRC to be decided according to law and in conformity with the decision of the Court of Appeal.

18. Post-Kirk developments in NSW[OH&S] - Grugeon Facts: • Chairman of Board of directors of Hunter Quarries Pty Limited that operated a mine prosecuted for breach of OH&S Act NSW. • Driver of vehicle died allegedly as a consequence of driving a truck at the mine - brakes failed - road unfit for the purpose - driver was not wearing a seatbelt. • Motion filed in Industrial Court of NSW seeking to have prosecution proceedings dismissed.

19. Post-Kirk developments in NSW[OH&S] - Grugeon The Charge • “I, RODNEY MORRISON, of the Department of Primary Industries, an Inspector duly appointed under Section 47A of the Occupational Health and Safety Act 2000 (‘the Act’) and empowered under Section 106 of the Act to institute proceedings in the within matter allege that HILTON ROSS GRUGEON, of 380 Duckenfield Road, Morpeth in the State of New South Wales, contravened Section 8(1) of the Act, on 14 June 2005 at the Karuah Quarry, situated at the corner of the Pacific Highway and The Branch Lane, Karuah in the State of New South Wales, in the said HILTON ROSS GRUGEON was a Director of and concerned in the management of HUNTER QUARRIES PTY LIMITED (ACN 093 914 937) (“the corporation”) and on that date the corporation, being an employer at the said Karuah Quarry, a place of work, failed to ensure the health, safety and welfare at work of its employee, Darren Smith, contrary to Section 8(1) of the Act. The Defendant is taken to have contravened Section 8(1) of the Act by operation of section 26(1) of the Act.”

20. Post-Kirk developments in NSW[OH&S] - Grugeon • Judge referred six questions of law to a Full Court of the Industrial Court of NSW: • No acts or omissions identified in the charge. This goes to the validity of the charges themselves. Such defects constitute a departure from the essential requirements of the law such that the defects go to the root of the proceedings. • Matter part-heard and scheduled for further hearing on 26 May 2010.

21. Post-Kirk developments in NSW[OH&S] - Bandrowski Fact: • Mr Brandrowski was an employee of a contractor that had been contracted to perform certain works on the Epping to Chatswood railway link in Sydney. • On 5 July 2005 he was found dead in a settlement pond at the construction site. • The medial evidence was that Mr Bandrowski had suffered a heart attack. There being no water in his lungs it was also determined that he was dead before he fell into the settlement pond.

22. Post-Kirk developments in NSW[OH&S] - Bandrowski • The construction companies were charged with breaches of the OH&S Act and those charges were heard in the Chief Industrial Magistrates Court. The companies were convicted. • The companies appealed the convictions to the Full Court of the Industrial Court of NSW. • On 28 May 2009 a Full Court of the Industrial Court of NSW dismissed the appeals. • Before the High Court delivered its decision in Kirk, the Defendants made application to the NSW Court of Appeal seeking prerogative relief. • The case is yet to be heard.

23. National Harmonisation of OH&S Laws • Even before the High Court’s decision in Kirk, the model act released by Safe Work Australia had adopted the Victorian standard and approach over the NSW / Qld standard and approach. • In short, the model act included the qualified standard of “reasonably practicable”. • One of the criticisms of the model is that each State gets to nominate its own regulator and the courts that will hear and determine prosecutions. • The High Court’s criticism of the Industrial Court in the conduct of the Kirk proceedings (and WorkCover for that matter) has reportedly struck a cord with the NSW Attorney-General. It has been reported to me by those who are well acquainted with the Attorney that he has taken the High Court’s criticisms to heart and is giving consideration to the most appropriate court to hear and determine OH&S prosecutions under the harmonised model.

24. The views of the Chief Justice of New South Wales – 25 March 2010 • In the “keynote address” to the AGS Adminstrative Law Symposium delivered on 25 March 2010 entitled “The Centrality of Jurisdictional Error”, the Honourable J J Spigelman AC, the Chief Justice of NSW, described the High Court’s decision in Kirk v The Industrial Relations Commission [2010] HCA 1 (in the context of the development of Australian administrative law), as a “dramatic step forward” in the process of “convergence” of the “constitutional dimension applicable to Commonwealth decision making and the common law dimension applicable to State decision making”.

25. The views of the Chief Justice of New South Wales • There is a hierarchy of Courts in Australia established by the Constitution, supervised by the High Court of Australia. It is Constitutionally impermissible for the Parliament of a State to deprive a Supreme Court of a State of its supervisory jurisdiction. • Kirk has now applied the terminology [constitutional expression] to the expression “State Supreme Court”. • The constitutional limitations of “Privative Provisions” in state legislation - until the judgment in Kirk there was, as far as I am aware, no judicial or academic commentary doubting the ability of a State Parliament to restrict review for jurisdictional error, within limits, by means of a properly drafted privative clause. • Specialist State Courts that engage in jurisdiction error are subject to review by the Supreme Court of the State and thereafter by the High Court.

26. The views of the Chief Justice of New South Wales • Time limitations - similarly, s.35 of the EP&A Act provides that the validity of an environmental planning instrument cannot be questioned except in proceedings commenced within three months of the date of publication on the New South Wales website of the instrument. Kirk may require further attention to the validity of these sections. • No invalidity clauses - the Land and Environment Court has been invested with the supervisory jurisdiction of the Supreme Court by way of judicial review pursuant to s.20(2)(b) of the Land and Environment Court Act 1979. Furthermore, by s.71(1) of that Act, proceedings of that character “may not be commenced or entertained in the Supreme Court”. Kirk could be seen to call in question the validity of s.71(1) of the Land and Environment Court Act.