Global Employment Law

Important High Court Decision Regarding OHS Regulation in NSW

On 3 February 2010, the High Court handed down its decision in Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531. The decision strongly criticised the approach to prosecutions under the Occupational Health and Safety Act 2000 (NSW) (OHS Act) and dismissed the attempted right to prevent appeals from that jurisdiction to the Supreme Court of New South Wales.

In addition to having significant implications for the conduct of prosecutions in New South Wales, the decision is likely to impact the way in which prosecutions are defended under occupational health and safety legislation in all Australian states and territories.


Kirk, the owner of a farm, was prosecuted by the WorkCover Authority of NSW (WorkCover) in relation to the death of one of his company's employees (Palmer), who died while driving an all terrain vehicle on Kirk's farm. Palmer had driven the vehicle directly down a sharp incline rather than using an available and safe private road.

WorkCover investigated the incident and commenced proceedings alleging that both the employing entity and Kirk (as director) had failed to take reasonably practicable steps to ensure the health and safety of Palmer.

At first instance, both the employing entity and Kirk were found guilty of OHS Act breaches. A series of appeals were brought by Kirk against that conviction, and ultimately the matter was referred to the High Court of Australia.

Outcome of the Decision in the High Court

The High Court of Australia quashed the original conviction and the penalties against Kirk and the employing entity. The High Court of Australia also ordered WorkCover to pay Kirk's legal costs.

Some of the key issues raised in the High Court of Australia's decision are:

  • Legislative attempts in the OHS Act and Industrial Relations Act 1997 (NSW) to oust the jurisdiction of the Supreme Court of New South Wales were deemed unconstitutional.
  • The obligation is on the prosecutor to sufficiently particularise the charges brought against the defendant.
  • Procedural errors in this case undermined the validity of the conviction. Allowing the prosecution to call Kirk as a witness constituted a procedural error and it required that Kirk's conviction be quashed.
  • While the duty under occupational health and safety (OHS) legislation to 'supervise' is often a vexed issue, Heydon J held that constant surveillance of employees' work activities is an impossible and unfair obligation on directors and officers.

Implications of the Decision

Significant implications of this decision relate to:

  • the way in which charges are drafted by WorkCover and other bodies who have the statutory right to prosecute OHS matters in New South Wales;
  • the approach which the Industrial Court of New South Wales must now adopt when adjudicating those charges both in terms of their interpretation of the law and also compliance with legal procedure;
  • the way in which prosecutors and the courts administer and interpret similar legislation in other states and territories;
  • the question of appeal rights arising from a decision of the Industrial Court of New South Wales; and
  • an increased awareness of what matters might offer scope for appeal because of jurisdictional error in courts and tribunals, particularly in New South Wales.

Read full post here.

This entry was written by Chris Barton and Andrew Pollock.