Yesterday on 3 February 2010, the High Court of Australia handed down its decision in Kirk v WorkCover NSW (and Ors).1 In its decision, the High Court 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 New South Wales Supreme Court.

This decision will have significant implications for the conduct of prosecutions in New South Wales but also contains important issues for consideration in the defence of prosecutions under occupational health and safety legislation in all Australian states and territories.


The High Court application arose as a result of a prosecution of a farmer, Mr Kirk. Mr Kirk was the director of an entity which was the owner of a farm near Picton, New South Wales, which employed a small number of employees, including his good friend Mr Palmer.

On 28 March 2001, Mr Palmer was killed while driving an all terrain vehicle on the farm. The circumstances of Mr Palmer’s death were not contentious and it is clear that he chose to drive the vehicle directly down a sharp incline, in lieu of using an available and safe private road.

Following the fatality, the WorkCover Authority of New South Wales (WorkCover NSW) commenced an investigation (under the predecessor to the current legislation, the Occupational Health and Safety Act 1983 (NSW)). As a result of that investigation, a prosecution was commenced just less than two years later alleging that both the employing entity of Mr Palmer and, through its culpability, its director Mr Kirk had failed to take reasonably practicable steps to ensure the health and safety of Mr Palmer.

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

Outcome of the decision in the High Court

The outcome of the judgment in the High Court was to quash the original conviction against Mr Kirk and the employing entity. The penalty imposed against Mr Kirk (fines totalling $121,000) was similarly dismissed and the High Court made an order that the matter not be reheard in the Industrial Court of New South Wales. The High Court also ordered WorkCover NSW to pay Mr Kirk’s legal costs.

The decision was made on a number of bases, some of which have specific application to the way in which the New South Wales occupational health and safety regime (including under the current legislation) is administered. The High Court also made a number of comments which are of important general application to the prosecution of offences under occupational health and safety legislation in all jurisdictions, and will doubtlessly be closely examined by regulators in New South Wales and throughout Australia.

We set out below some of the key issues raised in the High Court decision.

Attempts to oust the jurisdiction of the New South Wales Supreme Court were deemed unconstitutional

One of the characteristics of the New South Wales occupational health and safety regime is to limit the rights of appeal of parties convicted by the Industrial Court of NSW of OHS offences. Read in conjunction with the Industrial Relations Act 1996 (NSW), parties are prohibited from seeking a review of decisions in relation to OHS liability, except by reference to the Full Bench of the Industrial Court of NSW. Appeals to the Supreme Court are prohibited.

The High Court was critical of this approach because the residual constitutional role of the Supreme Court in each state and territory is to review the exercise of jurisdictions conferred on lower courts, such as the Industrial Court of NSW, which operate beneath it.

Mr Kirk was unsuccessful in seeking a review of the decision made by the Industrial Court of NSW at the first instance when he appealed to the Court of Appeal of New South Wales. On the basis of this decision, the High Court has ruled that parties are entitled to appeal jurisdictional errors to the Supreme Court of New South Wales.

The obligation is on the prosecutor to identify means of compliance in the charges

One of the other grounds of appeal brought by Mr Kirk was in relation to a failure of WorkCover NSW to properly identify ways in which Mr Kirk and his company had failed to ensure health and safety so far as reasonably practicable.

The High Court accepted Mr Kirk’s argument in confirming that it is inadequate to commence an OHS charge on the basis that a failure to ensure health and safety has occurred. Following workplace incidents, and with the benefit of hindsight, prosecutors can identify that a failure to ensure safety has in fact occurred. The obligation then rests with the prosecution to properly identify and plead the ways in which the defendant ought to have acted to manage health and safety.

This is an important clarification from the High Court and relevant when assessing the strength of any health and safety prosecution. When defendants ask how it is they failed to take reasonably practicable steps to ensure health and safety of their employees, WorkCover NSW will now be required to respond.

Procedural errors undermined the validity of the conviction

During the hearing, Mr Kirk was called as a witness by the prosecution to lead evidence in relation to the prosecution against both the company and himself.

It is an established principle of criminal and evidentiary law that the accused cannot be a witness for the prosecution, particularly where the prosecution bears the onus of proof on some legal issues and the accused bears the onus of proof on other issues. This rule cannot be, and should not have been, waived. Allowing the prosecution to call Mr Kirk as a witness constituted a procedural error and it required that the conviction against Mr Kirk be quashed.

Criticism of the basis of the prosecution itself

Heydon J, who agreed with the substance of the reasons for judgment of the majority, subject to one question, was critical of WorkCover NSW for commencing the prosecution against Mr Kirk. He highlighted that the proceedings involved an act of employee misconduct that was ‘inexplicably reckless’. He also noted that the court at first instance had concluded that it was a ‘crucial’ piece of evidence that Mr Kirk ‘did not supervise the daily activities of employees or contractors working on the farm’.

While the duty under OHS legislation to ‘supervise’ is often a vexed issue, Heydon J criticised the conclusion of the court of first instance and held that constant surveillance of employees’ work activities is an impossible and unfair obligation on directors and officers and an inaccurate summation of the law in this area.

Issues relating to reckless employee conduct and supervision of employees are commonly contested in OHS prosecutions. While the obligation to foresee reasonable actions of employees and to ensure a system of ‘supervision’ of employees and contractors remains important, these comments in the case will be the subject of much discussion and will inform this area of the law.

Implications of the decision

The significant implications of this decision will relate to:

  • the way in which charges are drafted by WorkCover NSW and other bodies who have the statutory right to prosecute OHS matters in New South Wales
  • the approach which the Industrial Court of NSW 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 judiciary administer and interpret legislation in other states and territories which have similar legislation
  • the question of appeal rights arising from a decision of the Industrial Court of NSW, and
  • an increased awareness of what matters might offer scope for appeal because of jurisdictional error in courts and tribunals, particularly New South Wales courts and tribunals.