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High Court sets new direction for workplace health and safety

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					Workplace          High Court sets new direction for workplace
Relations and
Safety             health and safety prosecutions
10 February 2010
                   Kirk v Industrial Relations Commission - Kirk            The High Court decision
                   Group Holdings Pty Ltd v WorkCover
                   Authority of New South Wales (Inspector                  In overturning the Industrial Court’s decision, the
                   Childs) [2010] HCA 1 (Kirk Decision)                     High Court took into account various issues.
                                                                            Importantly however, the High Court found that the
                   In the recent Kirk Decision, the High Court              statements of the offences as particularised in the
                   unanimously quashed the convictions of Kirk              charges did not identify the measures Kirk Holdings
                   Group Holdings Pty Ltd (Kirk Holdings) and its           and Mr Kirk could have taken but did not take. The
                   Director, Mr Kirk, and set aside their combined          majority of the High Court bench observed:
                   $121,000 fine handed out following the death of a
                   farm manager whilst at work.                             	 ‘Needless	to	say,	the	appellants	could	not	have	
                                                                              known	what	measures	they	were	required	to	
                   The decision is one of the most significant                prove	were	not	reasonably	practicable.’
                   workplace health and safety rulings in recent times
                   and, while it has a direct impact on workplace
                   health and safety prosecutions in New South              What are the implications in New
                   Wales, it may also pave the way for changes to the       South Wales?
                   way that prosecutions in other jurisdictions are run,
                                                                            In summary, the High Court determined, under the
                   especially Queensland.
                                                                            New South Wales occupational health and safety
                                                                            legislation, that:
                   Background                                               • allegations of a breach of the legislative OHS
                   Kirk Holdings owned a farm at Picton in New                provisions need to be properly particularised in
                   South Wales. Mr Kirk employed Mr Palmer as the             order for a defendant to be provided with the
                   farm manager. Mr Kirk had a clean industrial record        opportunity to respond. It is not enough for the
                   stretching 20 years and was known as someone               prosecution to simply specify the nature of the
                   who took care in his duties. The evidence showed           allegations, and
                   that Mr Palmer had previously run his own farm           • for a conviction to stand, the prosecution must
                   and Mr Kirk believed Mr Palmer to be a competent           identify what the employer could have done to
                   farm manager, having greater experience than Mr
Focus

                                                                              prevent a workplace incident. The High Court’s
                   Kirk in managing farms.                                    approach is, perhaps best summarised by this
                   On the day of the incident, 28 March 2001, Mr              observation made by the majority:
                   Palmer was delivering materials to workers in the        	 ‘If	a	risk	was	or	is	present,	the	question	is	-	what	
                   back paddock of the farm. For unknown reasons,             action	on	the	part	of	the	employer	was	or	is	
                   Mr Palmer took his vehicle off road and proceeded          required	to	address	it?		The	answer	to	that	
                   down a steep slope on his way to the back                  question	is	the	matter	properly	subject	of	the	
                   paddock. The slope was not part of the course              charge.’
                   normally driven on the farm and there were other
                   roads available and usually used to access the back      Although based on an earlier version of the New
                   paddock. In driving down the slope, Mr Palmer’s          South Wales legislation, the Kirk Decision remains
                   vehicle overturned and he was fatally injured.           applicable to the current laws. This decision
                                                                            therefore means that defendants to WorkCover
                   Kirk Holdings, as Mr Palmer’s employer, was              Authority prosecutions in New South Wales will
                   charged with failing to ensure the safety and            have a better understanding of the case they are to
                   welfare of all employees at work. Mr Kirk was also       meet and improves the chances of a defence being
                   charged in his capacity as a director of Kirk            available.
                   Holdings. Kirk Holdings and Mr Kirk were found
                   guilty of the offences charged and were fined in a       Importantly, the nature of obligations owed under
                   decision handed down by the Industrial Court of          the legislation remains unchanged and therefore
                   New South Wales.                                         New South Wales employers need to remain
                                                                            diligent in preventing workplace incidents, rather
                   Appeal proceedings in the New South Wales Court          than relying upon a defence being available if an
                   of Appeal and Court of Criminal Appeal followed,         incident occurs.
                   until the matter was finally heard in the High Court
                   in late 2009, with judgment of the High Court
                   handed down on 3 February 2010.




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                   Telephone 07 3233 8888       Fax 07 3229 9949       Email info@mccullough.com.au   Web www.mccullough.com.au
What are the implications elsewhere?                     Further developments to watch out
The Kirk Decision is likely to have implications as to   for
how prosecutions are run even outside New South          Despite the current differences between States
Wales.                                                   about the need to provide particulars as part of
In particular, it may impact upon proceedings in         workplace health and safety prosecutions, the Kirk
Queensland which, like New South Wales, has a            Decision may have greater application if the High
legislative scheme that has a reverse onus of proof      Court’s views are picked up as part of the national
placed upon defendants and has been the subject          harmonisation of workplace health and safety
of judicial interpretation by a State Court that does    laws. On this, we will have to wait and see.
not require particulars of the alleged failures to be    For further assistance or enquiries please contact:
pleaded.
                                                         Workplace Relations and Safety Group
As at the date of this Focus, we are unable to
comment as to the official position adopted by           Tim Longwill on 07 3233 8974
Workplace Health and Safety Queensland (WHSQ)            Cameron Dean on 07 3233 8619
in response to the Kirk Decision. However, in            Michael Moy on 07 3233 8720
current matters being prosecuted by WHSQ we              Hayden Small on 07 3233 8709
have not received any indication that WHSQ will          Angela Petie on 07 3233 8718.
agree to amend their complaints to provide further
particulars of alleged breaches of the Workplace	        Focus covers legal and technical issues in a general way. It is not designed
Health	and	Safety	Act	1995	(Qld).                        to express opinions on specific cases. Focus is intended for information
                                                         purposes only and should not be regarded as legal advice. Further advice
Assuming this is representative of WHSQ’s view, the      should be obtained before taking action on any issue dealt with in this
                                                         publication.
position in Queensland is that a defendant cannot        If you would prefer not to receive further Focus newsletters from us,
rely upon the Kirk Decision to seek particulars of       please email inforequest@mccullough.com.au with ‘unsubscribe’ in the
                                                         subject heading and we will remove your address from our mailing list
complaints against them. To alter this position will     or write to us with your request to unsubscribe to Business Development
require either legislative change or a successful        and Marketing at McCullough Robertson.

Court challenge - perhaps requiring consideration of
the Queensland position by the High Court.
If the Kirk Decision was applied in Queensland, the
effect would be that particulars would be required
to be pleaded by the prosecution. Even if particulars
were provided, like New South Wales, the
legislative obligations would remain unchanged
and there could be no guarantee that a defence
would be available.
However, the increased prospect of a defence
being available in Queensland would be a welcome
development, especially when it is considered that
the Department of Justice and Attorney General’s
2008/09 annual report reveals that WHSQ enjoys a
90% success rate in their prosecutions.

				
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