Implications of the High Court’s
decision in Kirk
16 April 2010
Malcolm Davis
Partner
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.
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.
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.
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.
The arguments advanced
High 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.
The arguments advanced
High Court
 While the statutory surface of s.15 was laudable, it was impossible [in
practice] to achieve in industries such as:
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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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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”.
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.
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.