The defence of compulsion under the Queensland Criminal Code provides that an accused person is not criminally responsible for conduct that would otherwise involve criminal offending if he or she reasonably believes that there is no other way to escape the carrying out of a threat of serious harm or detriment. If an accused raises the defence of compulsion he or she must be able to point to some evidence capable of amounting to reasonable grounds for the belief, the High Court has held.
Dion Taiapa was arrested in July 2006 when the police located 364 grams of methylamphetamine and over $28,000 in cash during a search of the vehicle in which he was travelling. The drug was estimated to be valued between $459,000 and $1.15 million, depending upon how it was sold. At his trial Mr Taiapa gave evidence that he owed a debt of $60,000 to two men, Tony and Salvatore, who had supplied him with drugs in the past. They had come to his home, threatened him and his pregnant de facto wife with a gun and demanded repayment. Mr Taiapa’s mother agreed to lend him $29,000, however his offer of this amount and repayment of the balance by instalments was rejected by the two men. In addition to taking the $29,000 they instructed him to travel from Cairns to Sydney to collect two parcels, which Mr Taiapa understood would contain prohibited drugs. They again threatened to harm him, his wife and his mother if he did anything stupid, and they specifically instructed him to not report the matter to the police.
At his trial Mr Taiapa relied on the defence of compulsion. He gave evidence that he believed he had no option other than to comply with Tony and Salvatore’s demands. He said that he had not reported the threats to the police because he had insufficient information to enable the police to identify Tony and Salvatore and he did not believe that police protection was “100 per cent safe”. He described Tony and Salvatore as being “not your everyday drug dealers”. He said that they were unlikely to fall into a trap. The trial judge withdrew the issue of compulsion from the jury on the basis that Tony and Salvatore were not in a position to execute their threats when Mr Taiapa collected and transported the prohibited drugs. Mr Taiapa was convicted on charges of unlawful trafficking and possession of a dangerous drug. He appealed to the Court of Appeal of the Supreme Court of Queensland, which found that the trial judge had erred in determining that the defence required that the person making the threat be in a position to carry it out when the offence was committed. However, the Court of Appeal said that Mr Taiapa had ample opportunity to alert the police to his predicament and it determined that there was no evidentiary basis for finding that his belief (that he could not otherwise escape the carrying out of the threat) was based on reasonable grounds. For this reason the Court of Appeal held that the trial judge had been correct to withdraw from the jury the issue of whether Mr Taiapa was acting under compulsion when he committed the offences.
Mr Taiapa applied for special leave to appeal to the High Court and three judges of the Court referred his application to a bench of five judges. The High Court unanimously determined to grant special leave to appeal but to dismiss his appeal.
The Court found that there was no reason to doubt the conclusion reached by the Court of Appeal. An unparticularlised concern that police protection may not be a guarantee of safety could not, without more, supply reasonable grounds for a belief that Mr Taiapa had no option other than to break the law in order to escape the execution of the threats made by Tony and Salvatore.
Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010)
The New South Wales Industrial Court exceeded its power in convicting an employer on charges which did not identify the acts or omissions which constituted the offences alleged. The Industrial Court had also exceeded its power in allowing one of the defendants to be called as a prosecution witness at trial. These two errors justified quashing the conviction and sentencing of the defendants and it would be beyond the powers of the State legislature to prevent the Supreme Court of the State to do as much, the High Court has held.
Graeme Kirk is the director of a company, Kirk Group Holdings Pty Ltd, which owned a farm near Picton on the outskirts of Sydney. Mr Kirk had no farming experience and left the day to day operation of the farm to Graham Palmer, who was employed as a farm manager. The company purchased an All Terrain Vehicle (ATV) on Mr Palmer’s recommendation in June 1998. On 28 March 2001 Mr Palmer used the ATV to deliver three lengths of steel, secured to carry racks at the rear of the vehicle, to contractors working in the far back paddock of the farm. Although a formed road led to the area where the contractors were working, Mr Palmer left the road and drove the ATV down the side of a steep slope. Mr Palmer’s reasons for leaving the road were never ascertained. The ATV overturned and Mr Palmer was killed.
In March 2003 a judicial member of the Industrial Court of NSW issued orders for Mr Kirk and the company to attend to answer charges under ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW) (the OH&S Act), including that the company had failed to ensure Mr Palmer’s health, safety and welfare at work. Mr Kirk and the company were convicted of the offences charged. They appealed to the Court of Appeal of the Supreme Court of New South Wales and to the Full Bench of the Industrial Court, seeking to overturn or quash the convictions. The Court of Appeal declined to intervene until the Full Bench had decided certain issues, but the Full Bench refused leave to appeal on all but a limited ground which it ultimately dismissed. Mr Kirk and the Kirk company were then unsuccessful in a second appeal to the Court of Appeal seeking to quash the decisions of the Industrial Court and the Full Bench. In the High Court they sought and were granted special leave to appeal against the second decision of the Court of Appeal. Their applications for leave to appeal the decisions of the Full Bench were referred to a panel of seven judges, to be considered at the hearing of the appeal for which special leave had been granted.
Section 15 of the OH&S Act requires every employer to “ensure the health, safety and welfare at work of all the employer’s employees”. Section 16 imposes a similar obligation in relation to persons present at the workplace who are not employees. Offences against ss 15 and 16 arise when an employer fails to take a measure which should have been taken to obviate an identifiable risk. Section 53(a) provides a defence in the context of proceedings against ss 15 or 16, if an employer can establish it was not reasonably practicable to take the measure which would have obviated the identifiable risk.
The High Court held that any statement of an offence arising under either ss 15 or 16 of the OH&S Act had to identify not only the risk but also what measure the employer could have taken to address the risk, otherwise it would be impossible for a defendant to establish whether it was reasonably practicable to take such a measure. The offences with which Mr Kirk and the company were charged did not identify the acts or omissions which constituted the alleged offences. Thus no measures which could reasonably practicably have been taken to obviate the risks could be identified and the defendants were denied the opportunity to properly defend the charges. The Industrial Court fell into jurisdictional error when it convicted Mr Kirk and the company of having contravened ss 15 and 16 of the OH&S Act in circumstances where offences against ss 15 and 16 had not been proved.
The Industrial Court was also obliged to apply the laws of evidence at the trial of the criminal charges. Sub-section 17(2) of the Evidence Act 1975 (NSW) provides that a defendant is not competent to give evidence as a witness for the prosecution. It is not possible to waive the provision. In allowing Mr Kirk to be called as a prosecution witness the Industrial Court had conducted a trial otherwise than in accordance with the laws of evidence, which it had no power to do. That error also was jurisdictional.
These jurisdictional errors should have led the Court of Appeal to quash the convictions and sentences applied to Mr Kirk and the company. Although s 179 of the Industrial Relations Act 1996 (NSW) prohibits an appeal against, a review, the quashing or calling into question of “a decision of the Industrial Court”, the High Court held that “decision” does not include a purported decision made outside the limits of the powers of the Industrial Court. Furthermore, Chapter III of the Constitution requires there to be a body in each state fitting the description “the Supreme Court of a State”. A necessary feature of a Supreme Court, which it is beyond the power of a State legislature to take away, is the ability to grant relief on account of jurisdictional errors made by courts and tribunals of limited jurisdiction. Thus s 179 could not prevent the Court of Appeal, nor the High Court on appeal, from quashing the convictions and sentences of Mr Kirk and the company. As Mr Kirk succeeded in having the decision of the Court of Appeal overturned, it was unnecessary for the Court to consider whether special leave to appeal the decisions of the Full Bench of the Industrial Court should be granted.
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2 (3 February 2010)
The High Court has held that a taking order purporting to compulsorily acquire privately owned land was partly invalid. Those portions of the land reserved to construct the Perth to Mandurah railway were validly acquired. However, the remainder of the land was not validly acquired, as the reason for its acquisition was to avoid a statutory obligation to construct crossings to the land, to which public access had been cut off by the construction of the railway.
In August 2003 Mandurah Enterprises Pty Ltd was the registered proprietor of lots 7 and 49 of the local government area of the City of Mandurah, south of Perth. Mr and Mrs Graham were the registered proprietors of lots 8 and 30 in the City of Mandurah. Each of the lots fell within the Peel Region Scheme (PRS). Following the gazettal of the PRS in October 2002 part of each of lots 7, 8 and 30 and all of lot 49 were reserved for Primary Regional Roads. The balance of lots 7 and 8 were zoned “urban” and the balance of lot 30 was zoned “industrial”. On 5 August 2003 a taking order was issued under s 177 of the Land Administration Act 1997 (WA) (Land Act) declaring that all of the lots had been compulsorily taken under the Land Act. The four lots comprised land on and adjacent to which the Perth to Mandurah railway was subsequently constructed.
At the time of the acquisition the appellants sought declarations that the orders for acquisition were invalid. They were unsuccessful before the primary judge. A majority of the Court of Appeal of the Supreme Court of Western Australia upheld the primary judge’s decision, except in relation to that part of lot 30 which had been zoned “industrial” under the PRS. The High Court granted leave to the appellants to appeal the decision of the Court of Appeal.
Under the Town Planning and Development Act 1928 (WA) (Planning Act) land may be compulsorily acquired “for the purpose of a town planning scheme”. Under the Land Act, when a particular entity has been authorised to “undertake, construct or provide [a] public work” (the definition of which included an authorised railway), then land “required for the purposes of the work” may be taken. The legislation which authorised the construction of the Perth to Mandurah railway also authorised the construction of “all necessary, proper and usual works and facilities in connection with the railway”. Under s 102 of the Public Works Act 1902 (WA) (Public Works Act) the Public Transport Authority is required to make such crossings as may be necessary to provide access to private land to which access has been cut off by the making of a railway line.
The railway was built over the western parts of lots 7 and 8, the eastern part of lot 30 and the whole of lot 49. All parties agreed the whole of lots 7 and 8 had been taken because, following construction of the railway, the parts of lots 7 and 8 not required for the railway would be inaccessible via public roads, and that lot 30 was taken as it was mistakenly believed that part of the lot would be rendered inaccessible via public road. The High Court unanimously determined that the PRS, which answered the description of a “town planning scheme”, authorised the taking of the whole of lot 49 and those parts of lots 7, 8 and 30 which had been reserved for the purpose of a town planning scheme. However the taking of the zoned parts of lots 7, 8 and 30 in order to avoid an obligation to provide access to otherwise inaccessible land did not constitute an acquisition of land in order to undertake, construct or provide a railway or for purposes incidental to that construction. Thus the Land Act did not authorise the taking of the parts of the lots which had been zoned “urban” (lots 7 and 8) or “industrial” (lot 30).
The Court unanimously allowed the appeal. A majority of the members of the Court made declarations to the effect that the taking order was invalid insofar as it purported to apply to those parts of lots 7 and 8 which were zoned “urban” under the PRS and that part of lot 30 zoned “industrial” under the PRS; and that the interests of the registered proprietors in those parts of lots 7, 8 and 30 had not been extinguished by the registration of the taking order validly made in relation to the reserved portions of lots 7, 8 and 30 and the whole of lot 49. Justice Hayne would have declared that the Commission had no power to take any of the land which was not reserved under the PRS and that the taking order of 5 August 2003, which applied to all of the lots, was beyond the power of the Commission to make.
Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3 (10 February 2010)
In December 2009 in the case of ICM Agriculture Pty Ltd v The Commonwealth the High Court determined that the replacement of a groundwater bore licence with an aquifer access licence which reduced a licensee’s groundwater entitlement did not constitute an acquisition of property. The High Court has held that the reduction of a licensee’s groundwater entitlement under an aquifer access licence does not abridge the rights of that licensee to reasonable use of the waters of rivers for conservation or irrigation.
The circumstances of this appeal are virtually the same as those in ICM Agriculture Pty Ltd v The Commonwealth and the appeals were heard one after the other. Mr Arnold and the other appellants had held a number of bore licences issued under the Water Act 1912 (NSW) to extract groundwater to irrigate their properties in the Lower Murray Groundwater System. Arising out of the Intergovernmental Agreement on a National Water Initiative between the Commonwealth and New South Wales, Victoria, Queensland, South Australia, the Australian Capital Territory and the Northern Territory, New South Wales developed the Water Sharing Plan for the Lower Murray Groundwater Source (the Lower Murray Plan), which resulted in the bore licences issued under the Water Act being replaced by aquifer access licences issued under the Water Management Act 2000 (NSW). The replacement licences significantly reduced the amount of water the appellants were permitted to take. As a consequence of developing the Lower Murray Plan (amongst other plans) New South Wales and the Commonwealth entered into a funding agreement, under which funds were provided to make ex gratia structural adjustment payments to allow bore water licence holders to manage their transition to reduced water entitlements.
In the Land and Environment Court of New South Wales the appellants sought a range of relief including declarations that the Lower Murray Plan was inoperative and that their bore licences had not been affected by it. The Commonwealth successfully applied for an order dismissing the proceedings. The Court of Appeal of the Supreme Court of New South Wales granted the appellants leave to appeal but dismissed the appeal. Three justices of the High Court granted the appellants special leave to appeal on two grounds based on the argument that the replacement of the bore licences with the aquifer access licences constituted an acquisition of property other than on just terms, contrary to s 51(xxxi) of the Constitution. The justices referred to the Full Court the special leave application on a third ground – whether the National Water Commission Act 2004 (Cth) and the Funding Agreement were laws or regulations of trade or commerce contravening s 100 of the Constitution, which prohibits the Commonwealth from limiting the right of a State (and its residents) to the reasonable use of the waters of rivers for conservation or irrigation.
In ICM Agriculture Pty Ltd v The Commonwealth the High Court by majority held that there had been no acquisition of property when the New South Wales government replaced bore water licences issued under the Water Act with aquifer access licences issued under the Water Management Act. Applying that holding to this case, the appellants’ arguments based on contravention of s 51(xxxi) of the Constitution failed.
The question whether the National Water Commission Act 2004 (Cth) and the Funding Agreement contravened s 100 of the Constitution had not been argued in ICM Agriculture. Six of the seven High Court justices determined that leave should be granted on the application for special leave to appeal on this ground, but that the appeal should be dismissed. The majority held that, whatever rights and liberties the appellants may have had under the bore licences, these were rights and liberties in relation to groundwater, not rights to use “the water of rivers” within the meaning of s 100. That being so, no contravention of s 100 of the Constitution had occurred and the appeal was dismissed.
