Kirk v Industrial Relations Commission

Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1

Summary
Majority: French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (Heydon J concurred but dissented on the form of the orders)
Decision: Appeal allowed.

An employee was killed in an accident on a farm, owned and operated by the defendants. The defendants, as the employer of the deceased, were charged and convicted in the Industrial Court (IC) with failing to “ensure the health, safety and welfare” of its employees under the (old) NSW OH&S legislation. The Court found that two errors were made by the Industrial Court:
1. the IC erred in recording a conviction because the charge failed to adequately set out what steps the defendant should have taken to avoid injury;
2. the IC erred in recording a conviction because the defendant had been called as a witness for the prosecution.
The Court found that both of these errors were ‘jurisdictional errors’ and ‘errors on the face of the record’. Accordingly, the Court made orders in the nature of certiorari quashing the decision in the IC. The Court found that State legislation cannot validly prevent the Supreme Court from reviewing a decision for jurisdictional error as to do so would be attempting to prevent the Supreme Court from acting as a superior state court as protected in the Constitution.

Facts

Mr Kirk, through his company, owned a farm on which an employee died in an accident. The accident occurred when the employee, for reasons unknown, took an ATV off the usual road and down a hill.

The company and Mr Kirk (the Appellants) were charged and convicted in the Industrial Court (IC) under the NSW OH&S legislation (the Act) for failing to “ensure the health, safety and welfare at work of all the employer's employees”. By agreement between the defendant and the prosecution, Mr Kirk was called as a witness for the prosecution at trial.

The Appellants sought orders in the nature of certiorari quashing the orders of the IC.

Section 179 of the Industrial Relations Act 1996 (NSW) contained a privative clause which prevented any appeal or review of a decision of the IC.

Inadequacies of the Charges

The Defendants were charged under the (now repealed) ss 15 and 16 of the Act. Section 15 referred to the employer having a “duty” to “ensure the health, safety and welfare at work of all the employer's employees”. Section 16 conferred on the employer a duty to “ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.”

There was a defence to these charges in s 53 if the employer could show that “it was not reasonably practicable for the person to comply with the provision of [the Act] the breach of which constituted the offence”.

As has been the practice of such prosecutions for many years, the charges that were laid, although some particulars were provided, generally merely repeated the language of the statutory duty and alleged a breach (at [22] and [24]). That is, the charges alleged a failure to “ensure” the safety of particular individuals, but did not state any particular measure that the defendants should have taken in order to ensure that safety.

The Court found that this was not adequate. They repeated the warnings on the formulation of charges, saying (at [14]) “[a] statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16.”

Ultimately, the Court said that the prosecution cannot merely allege a breach of duty for this offence, it has to state what steps should have been taken in order to satisfy the duty. The Court concluded:

[27] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. … Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable. …
[38] A consequence of the matter proceeding to conviction on the charges as stated, absent the identification of measures the Kirk company should have taken, was that it was denied the opportunity to properly put a defence under s 53(a).

Accordingly, the charges were defective.

Calling of Mr Kirk

Section 17 of the Evidence Act 1995 (NSW) provides that the defendant is not competent as a witness for the prosecution, and this cannot be waived by the parties (at [51]). Accordingly, the Court also found that allowing the defendant to be called as a prosecution witness was an error.

Grounds for Certiorari

The Court said that the NSW Court of Appeal should have made an order in the nature of certiorari as there was either a “jurisdictional error” or an “error on the face of the record”.

Jurisdictional Error

The Court found that both the error regarding the charges and the error regarding the calling of Mr Kirk were jurisdictional errors.

The Court said that the IC had no jurisdiction to convict and sentence the defendants on the charges as there had not been any articulation, “at any point”, of the particular act or omission that was the subject of any charge. The IC cannot make an order recording a conviction when an offence under the Act has not been proved (at [74]-[75]).

In relation to the error regarding the calling of the defendant, the Court indicated that the IC only had jurisdiction to order a conviction following proof in a trial which is conducted according to the rules of evidence. It said that not all evidentiary errors will amount to a jurisdictional error, because the parties can generally be seen as having impliedly permitted departure from the rules of evidence. However, the parties could not waive the rule that the defendant cannot be called as a witness for the prosecution, and the IC therefore has no power to permit that to occur. Accordingly the IC fell into jurisdictional error by ordering a conviction in the absence of a trial conducted according to the rules of evidence (at [53] and [76]).

Justice Heydon did not even commit to the view that all departures from the rules of evidence that cannot be waived will be a jurisdictional error (at [114]).

Error on the Face of the Record

NSW legislation provided for the Supreme Court to make orders in the nature of certiorari for “errors on the face of the record” and specifically extended the “record” for that purpose to include reasons for decision. Accordingly, the Court said, “[t]he decision in Craig confining the extent of the record of an inferior court does not apply”. That meant that the reasons for decision of the IC were part of the record and, because the two errors above appeared in those reasons, each was an error on the face of the record.

State Privative Clauses

The Court found that the legislation which sought to prevent any review of a decision of the IC did not extend to prevent the Supreme Court from making an order in the nature of certiorari for a jurisdictional error.

The Court considered the role of the Supreme Court in the context of its inclusion in Ch III of the Constitution. It said that the role of the Supreme Court as a supervisor of the exercise of state power is guaranteed under the Constitution and accordingly, it is not within the power of a state legislature to pass a law which restricts the Supreme Court’s ability to order certiorari for a jurisdictional error (at [100]).

In any event the relevant legislation in this case was interpreted, on a proper construction, as not extending to purported decisions of the IC, in the sense of decisions which are outside jurisdiction (see [103]-[104]).

Accordingly, the privative clause did not prevent an order in the nature of certiorari for the errors of the IC. The Court quashed the orders of the IC.

Comment

Some blawgs and newspapers have tended to concentrate on the way this case affects OHS&W prosecutions. For me, although this case is a good example of the difficulties in charging criminal omissions (rather than acts), by far the most interesting discussion in this case relates to the availability of an order in the nature of certiorari.

It is difficult to briefly state all the issues that are raised here so I will just set out a few matters that struck me in particular.

The Court confirmed the distinction between the two bases for certiorari of “error on the face of the record” and “jurisdictional error” (at [80]). The relationship between these two errors was considered and it was concluded (at [56]):

The decided cases reveal a degree of uncertainty about both what is the "record" on the face of which error must appear, and what is meant by "jurisdictional error". Moreover, allowing the one remedy on two different bases may suggest the existence of some singular unifying principle underpinning both grounds. But no principle can readily be identified that would unify or explain both grounds.

The difficulties in defining and identifying jurisdiction error were conceded by the Court and it declined to give any definitive test for what is a jurisdictional error. The Court seemed to prefer an approach that incorporates the public policy which governs the concept of jurisdiction in this context, whilst observing that jurisdiction of a body is always to be determined by reference to the statute that establishes it (at [72]). Indeed, the Court seemed to approve of the view that the determination of what is a jurisdictional error may be determined by reference to matters such as the seriousness of the error, rather than the type of error.

So why is this important? Because the Court said that it is these enigmatic notions of jurisdiction that draw the contours of the legislative power of our state parliaments to restrict review of decisions (at [100]):

This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.

This decision is, in my opinion, a further example of what the French Court (no doubt with some strong encouragement from Gummow J) perceives to be the role of the Supreme Courts in the Australian Constitutional system. The confirmation and expansion of notions that the Constitution expands below the Federal level and that it permeates all operations of law in Australia are traits for which I think this court will be remembered.