Kirk v Industrial Court of New South Wales

The Decision in Kirk

The relevant facts in Kirk were of short compass.  Kirk Group Holdings Pty Ltd (the company), owned a farm near Picton in New South Wales.  Mr Kirk was a director of that company, however, he did not take any active part in the running of the farm and had no farming experience.  The day to day operations of the farm were carried out by one Mr Palmer.  Mr Palmer was employed by the company as a farm manager.  He was experienced and very competent.  

There was for use on the farm an all terrain vehicle which had been purchased by the company in mid 1998.  Mr Palmer had recommended its purchase.  In March 2001, Mr Palmer was using the vehicle on the farm to deliver steel to some fencing contractors who were performing work there.  There was a formed road which led to the area where the tractors were working.  For reasons unknown, Mr Palmer took the vehicle off the formed road and down the side of a steep hill.  It was not necessary for him to do so.  When riding down the hill, the vehicle overturned and Mr Palmer was killed.  

Each of the company and Mr Kirk were charged with offences under sections 15 and 16 of the Occupational Health and Safety Act 1983 (NSW).  Section 15 imposed a duty on an employer to ensure the health, safety and welfare at work of all its employees.  Section 16 imposed a duty on employers to ensure that persons not in the employer’s employment were not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking  while those persons were at the employer’s place of work.  

Section 15(2) provided examples of what may amount to the contraventions of the general duty imposed by s.15(1) they included: the provision or maintenance of plant and systems of work that are safe and without risk to health; the making of arrangements for ensuring safety and the absence of risk to health in connection with the use, handling, storage or transport of plant and substances; the provision of such information, instructions, training and supervision as may be necessary to ensure the health and safety at work of the employees; the maintenance of any place of work under the employer’s control in a condition that was safe and without risk to health; and the provision of safe means of access to and egress from such places.

Mr Kirk came to be charged by operation of s.50 of the Occupational Health and Safety Act which attached liability upon directors for offences committed by corporations.  

Both the company and Mr Kirk were convicted of the offences with which they were charged in the Industrial Court of New South Wales.  They appealed, unsuccessfully, to a full bench of that Court. They then appealed to the Court of Criminal Appeal  of the Supreme Court and also sought orders for certiorari from the Court of Appeal to quash the convictions and the orders of the full bench. They were again unsuccessful.

Each of their appeals to the High Court of Australia was successful and their convictions were quashed.

In the High Court, it was held that it was incumbent upon a prosecutor  prosecuting offences under s.15 or 16 of the OH&S Act to identify within the charge laid the measures said not to have been taken by the employer which should have been taken, and which was the act or omission which constituted the offence of having contravened the duties imposed.2  This was because s.15 and 16 were only contravened upon an employer failing to take a particular measure.  This, the Court found, was evident from each of s.15(4) and 16(3) which referred to “the act or omission concerned” which “constituted a contravention”.3  

Furthermore, the Court found that the necessity for the statement of offence to identify the act or omission of the employer said to constitute the contravention was even more apparent when regard was had to the defences available under the Act.  Particularly, s.53(a) provided that it was a defence for the person charged to prove that it was not reasonably practicable for them to comply with the provision of the act the breach of which constituted the offence.4

The Court found that the statement of offences as particularised in the charge against each of the company and Mr Kirk, did not identify the measures that the Kirk company, as the employer, could have taken but did not take.  Those charges did not identify any act or omission which constituted a contravention of either s.15(1) or s.16(1).5

The Court found:

Section 53(a) did not require the employer to take all measures which would have guaranteed against the risk in question, but only the undertaking of those measures which were reasonably practicable.7

The relief sought by each of the company and Mr Kirk in the New South Wales Court of Appeal was an order for certiorari quashing their convictions.  Section 179 of the Industrial Relations Act 1996 (NSW) contained a privative clause which provided that a decision of the Industrial Court was “final and may not be appealed against, reviewed, quashed or called in question by any court or tribunal”.  An issue, therefore, was whether the effect of that privative clause was to oust the jurisdiction of the Court of Appeal to make an order for certiorari.  It was common ground between the parties when the matter was before the Court of Appeal that that Court could exercise its supervisory jurisdiction if there was jurisdictional error.8  The Court of Appeal found, however, that the errors which had been identified were not jurisdictional errors and thus refused relief.

In the course of the hearing of the appeal in the High Court a further issue of potential error was raised by the Court for the parties’ consideration.  That was that in the course of the company and Mr Kirk being jointly tried, Mr Kirk had been called to give evidence by the prosecution.  That course had been followed by agreement between the parties at the trial and no issue had been taken in respect of it in any of the intermediate appeals prior to the matter being raised by the High Court. 

Before the High Court, a distinction was sought to be drawn between the competence of Mr Kirk to give evidence in the prosecution against himself  (in respect of which it seems accepted that he was not competent) and his competence to give evidence against the company.

The High Court found that s.17(2) of the Evidence Act 1995 (NSW) which provided that the defendant was not competent to give evidence as a witness for the prosecution, could not be waived and, where the company and Mr Kirk were tried jointly, the distinction sought to be drawn was not available.9 

The High Court found that each of the errors were jurisdictional errors and errors on the face of the record which required a grant of certiorari (subject to the application of privative provision).10 

The Court found further that the privative clause in s.179 of the Industrial Relations Act did not, and could not, have effect in respect of decisions affected by jurisdictional error.  The basis of the Court’s finding in this regard, was that an attempt by the legislature to deprive a State Supreme Court of its supervisory jurisdiction would be to remove from the State Supreme Court one of its defining characteristics and was, as such, beyond the state legislative power.11

Disclosure of an Alleged Act or Omission in the Statement of the Charge

It was the High Court’s ruling in Kirk that validity of a charge required the disclosure by the prosecution, within the charge, of the act or omission which it was alleged constituted the contravention of the duty imposed by the statute, which precipitated the immediate flurry of activity in respect of prosecutions then on foot.  In both New South Wales and Queensland a number of applications were made to Courts seeking to strike out prosecutions brought against various defendants because of alleged failure to adhere to this requirement as identified by the High Court. Attempts were also made to have convictions in concluded proceedings quashed.

In Queensland those attempts have been unsuccessful insofar as they have sought to have prosecutions struck out or permanently stayed. There has been more success though in having courts order some particularisation of the complaint.

Most particularly, in N K Collins Industries Pty Ltd v Twigg12  the President of the Industrial Court of Queensland dismissed an appeal against the conviction of a company for an offence of having contravened s.24(1) of the Workplace, Health and Safety Act 1995, for its failure to discharge an obligation imposed by s.28. The High Court’s decision in Kirk had been sought to be relied upon. 

In dismissing the appeal, the President of the Industrial Court determined that the statutory scheme under the Workplace, Health and Safety Act 1995 (Qld) was substantially different to that statutory scheme to be found in the Occupational Health and Safety Act 1983 (NSW).  His Honour found:   

“The difficulty lies in asserting that the Workplace, Health and Safety Act 1995 (The Act) and the Occupational Health and Safety Act 1983 (NSW) are analogous.  In the case where a person described in s.28(1) of the Act is killed or injured and it is asserted (a) that the person is not free from death or injury and (b) that the person was not free from the risk of death or injury, I am quite unable to see the analogy.”13 

His Honour found that the analogous legislative scheme to that contained in the OH&S Act (NSW) was that which had formerly applied in Queensland under the repealed Workplace, Health and Safety Act 1989.  That Act, like the New South Wales provisions, imposed an obligation based upon practicability.  The scheme under the current WH&S Act is, his Honour found, quite different.14

His Honour had found that the complaint disclosed the legal elements of the offence charged and identified the essential factual ingredients of the offence.15  His Honour further found that the particulars in the complaint identified the relevant risk which was critical to either a defence under s.37(1)(b) of the Workplace Health and Safety Act or in a defendant establishing that it had discharged the obligation pursuant to s.26 of the act.16

In rejecting a submission that the prosecution should have particularised the measures not taken and the act or omission of the defendant, his Honour said:

The defendant to the original proceedings, the appellant before the Industrial Court, sought judicial review of the President’s decision.  In N K Collins Industries Pty Ltd v President of the Industrial Court of Queensland and Anor 17  Boddice J allowed the application finding that the President of the Industrial Court had committed jurisdictional error. 

Importantly, however, Boddice J found jurisdictional error only in that part of the President’s decision set out immediately above.  His Honour said:

Boddice J otherwise upheld the President’s construction of the Workplace Health & Safety Act 1995 and his Honour’s findings as to the distinction between the scheme imposed by that Act and that under the Occupational Health & Safety Act 1983 (NSW).19

In light of the judgment of Boddice J and N K Collins Industries, it is likely that defendants to Workplace Health & Safety prosecutions under the Workplace Health & Safety Act 1995 will seek orders for particulars of matters of the kind referred to in his Honour’s judgment.  Particularisation of the allegedly applicable code of practice may not take the matter very far, but “other measures (the prosecution) asserts ought to be taken” may do so.

Applications for such particulars, since the President’s earlier decision in Parr v NQEA Australia Pty Ltd20, had been largely futile.  They may now, however, meet with more success. For example, on 15 December 2010, an Industrial Magistrate held, in Swift v Sunwater Limited and Swift v Trellborg Engineered Systems Australia Pty Ltd,21 that particulars of the “acts or omissions of” or the “measures not taken by” the defendants ought be provided. He did so particularly because of the multiplicity of hazards which had been mentioned in the particulars of the complaint which the prosecution had already provided.22

Further observations may be made as to the potential for the broader reasons of the High Court in Kirk as to the necessity to identify within a charge the act or omission said to constitute the contravention to affect some aspects of Queensland health & safety law. 

The obligations imposed on operators of coal mines under s.41(1)(a) of the Coal Mining Safety and Health Act 1999, and operators of mines under s.38(1)(a) of the Mining and Quarrying Safety and Health Act 1999, are cast in different terms to that imposed by s.28(1) of the Workplace Health and Safety Act 1995.  Each of s.41(1)(a) of the CMSHA & s.38(1)(a) of the MQSHA require the operator to ensure that the risk to workers while at the mine is “at an acceptable level”.  Each Act provides that for risk to be at acceptable level, the operations must be carried out so that the level is risk from the operation is within acceptable limits and at low as reasonably achievable.23 

Similarly, in each instance, determination of whether risk is within acceptable limits and as low as reasonably achievable requires regard to be had to the likelihood of injury or illness to a person arising out of the risk and the severity of the injury or illness.24  On the reasoning in Kirk & N K Collins, particularisation by the prosecution as to how risk was not at an acceptable level, through not being within acceptable limits and as low as reasonably achievable, would seem to be required and may also require the identification of particular acts or omissions on the part of the operator.

Jurisdictional Error

Whether an error committed by a Court or by a tribunal is a jurisdictional error or merely an error within jurisdiction is a distinction which is often particularly difficult to discern.25   It is, however, a distinction which remains in Australian law.26   In Kirk, it was observed that the distinction drawn by the Court in respect of jurisdictional error committed by courts on the one hand, and administrative tribunals on the other hand, on the basis that courts have the authority to decide questions of law authoritatively, was unhelpful. This was because, in the end, the “authoritative” decisions of inferior courts were simply those decisions which were not attended by jurisdictional error.27  The circularity of reasoning is evident.

In Craig the Court had identified a number of ways in which an inferior court may commit jurisdictional error. These included misconstruction of a relevant statute thereby misapprehending the limits of its functions and powers. The Court emphasised in adopting the examples of jurisdictional error committed by inferior courts as set out in Craig, that these were examples and not “a rigid taxonomy of jurisdictional error”.28 

In Kirk, the Court found that the error of construction of s.15 of the Occupational Health & Safety Act was a jurisdictional error of the kind identified in Craig as a misconstruction of a relevant statute thereby misapprehending the limits of its functions and powers.  By its misconstruction, the Industrial Court had convicted each of the defendants of offences when what was alleged, and what was established, did not identify any offending conduct.29 

In N K Collins, Boddice J found that the President of the Industrial Court had erroneously held that there was no obligation on a complainant to particularise the measures not taken so as apprise a defendant of the case which it was to meet in preparing any defence. His Honour found that this constituted a misconstruction of the Workplace Health and Safety Act and a misconception of the extent of the Court’s powers in the particular case.  As such, his Honour found that the Industrial Court had fallen into jurisdictional error.30

The High Court’s judgment in Kirk has, to adopt the expression used by the Court in the earlier decision of Aala, made it no easier to draw a “bright line” between jurisdictional error and error in the exercise of jurisdiction.  However, that lack of clear distinction suggests that, in light of the High Court’s reemphasis of the availability of review for jurisdictional error, cases will continue to be brought in which the characterisation of otherwise identified error would be of crucial importance.

Privative Clauses

In Re Hickman; Ex parte Fox and Clinton31, Dixon J formulated an approach which attempted to reconcile the apparent contradiction between the statute that, on one hand, stipulated legal constraints on a public body, while on the other hand, forbade the Court from policing those restraints.32  In Kirk the High Court emphasized however that “the question presented by a privative provision is not just a conundrum of contrariety requiring a resolution of competing elements of the one legislative instrument”.

In Plaintiff 157/2002 v Commonwealth33 the High Court had held that the Commonwealth Parliament could only constitutionally legislate to limit judicial review of Commonwealth decision makers to decisions not involving jurisdictional error.  Commonwealth legislation that purported to go further by ousting judicial review altogether, including decisions involving jurisdictional error, was thus unconstitutional and invalid.  This position is based on the express entrenchment on the High Court’s original judicial review jurisdiction in relation to Commonwealth officers conferred by s.75(v) of the Constitution.

In Kirk, the Court held that, in considering State legislation, it was necessary to take account of the requirement of Chapter III of the Constitution that there be a body fitting the description of “the Supreme Court of a State” and what was described as the constitutional corollary that it “is beyond the legislative power of a State so to alter the constitutional character of its Supreme Court that it ceases to meet the constitutional description”.34 

The Court found that the supervisory jurisdiction of the Supreme Courts has been, both at the time of and since federation, a defining characteristic of those Supreme Courts.

The unanimous decision of the High Court in Kirk is that judicial review in cases of jurisdictional error is constitutionally entrenched.  It means that State Parliaments can only constitutionally legislate to limit the power of judicial review of the State Supreme Courts in respect of  decisions not involving jurisdictional error.  State legislation that purports to oust all forms of judicial review, including of decisions involving jurisdictional error, is unconstitutional and invalid.35

The privative clause in s.349 of the Industrial Relations Act 1999, unlike that in s.179 of the Industrial Relations Act 1996 (NSW) is, in terms, expressed to be limited to decisions of the Industrial Court made “within its jurisdiction”.  That such a privative clause would not extend to a decision which was affected by jurisdictional error had already been accepted in a number of cases.36 However, other Queensland legislation contains privative clauses which purport to expressly apply to decisions including those affected by jurisdictional error.37 

In light of the High Court’s decision in Kirk, those privative clauses must now be considered to be beyond the legislative powers of the Queensland Parliament and thus, invalid.

Sandy Horneman-Wren S.C.

Footnotes

1. (2010)  239 CLR 531; [2010] HCA 1.
2. Kirk at [34].
3. Kirk at [12].
4. Kirk at [15].
5. Kirk at [28].
6. Kirk at [34].
7. Kirk at [18]. For reasons discussed below, this has proven to be a critical distinction between the scheme under the New South Wales legislation and that created by the Workplace Health and Safety Act 1995 (Qld).
8. Kirk v Industrial Relations Commission (NSW) (2008) 173 IR 465 at 471 [21]; Kirk at [48].
9. Kirk at [50]-[52].  Section 17(2) has an analogue in section 8 of the Evidence Act 1977 (Qld).
10. Kirk at [54]-[55].
11. Kirk at [99]-[100].
12. Industrial Court of Queensland No. C/2009/56, 27 April 2010.
13. Ibid at [21].
14. Ibid at [22]-[23].
15. Ibid at [17].
16. Ibid at [18].
17. [2010]  QSC 373.
18. [2010]  QSC 373 at [20]-[23].
19. Ibid at [14]-[16].
20. (2001) 167 QGIG 913.
21. Blackwater Industrial Magistrates Court matters No. MAG00231428/09(7) and No. 00231447/09(1).
22. It is to be noted that, on the basis of Kirk and N K Collins, his Honour upheld the validity of the complaints.
23. See s.29(1) Coal Mining Safety & Health Act 1999 and s.26(1) Mining & Quarrying Safety &     Health Act 1999.
24. See s. 29(2) Coal Mining Safety & Health Act 1999 and s.26(2) Mining & Quarrying Safety & Health Act 1999.
25. Craig v South Australia (1995) 184 CLR 163 at 178; Kirk at [72].
26. Re: refugee tribunal; Ex parte Aala [2000]  204 CLR 82 at [163].
27. Kirk at [69]-[70].
28. Kirk at [73].
29. Kirk at [74].
30. [2010] QSC373 at [28]-[29].
31. (1945)  70 CLR 598.
32. Ibid at 616; see also, Aronson & Dyer at paragraph [17.05].
33. [2003]  211 CLR 476.
34. Kirk at [96] citing Forge v Australian Securities and Investments Commission (2006)     228CLR45 [63].
35. Kirk at [91]-[100].
36. See Squires v President Industrial Court Queensland  [2002]  QSC 272; Carey v President     Industrial Court Queensland  [2004]  QC 8; AMACSU v Ergon Energy Corp Ltd [2005] QCA 351; Parker v President Industrial Court Queensland  [2010] 1 Qd R 255.
37. See sections 17, 66, 68, 70, and 71 of the Corrective Services Act 2006 (Qld).