What must a safety regulator tell you about the charges you are facing? The Queensland Court of Appeal considers the Kirk Group High Court decision - Health & Safety

In this In Brief, we consider the recent decision in NK Collins Industries Pty Ltd v The President of the Industrial Court of Queensland [2013] QCA 179. In this decision, the Queensland Supreme Court – Court of Appeal took the view that Queensland's safety regulator must identify and particularise in its charges the measures which should have been taken by a duty holder to ensure health and safety, before a prosecution can succeed.

Whilst the decision specifically relates to the now repealed Workplace Health and Safety Act 1995 (Qld) (Qld Act) ¹, it provides – along with the 2010 High Court of Australia decision in Kirk ² – useful guidance on how offences against health and safety legislation will have to be investigated and prosecuted by regulators.

THE DECISION IN KIRK

In 2001, a farm manager employed by the Kirk Group was killed when the company-owned vehicle he was driving overturned.

The Kirk Group and its director were prosecuted for contravening the Occupational Health and Safety Act 1983 (NSW) (NSW Act) ³ by failing to ensure the farm manager's health and safety. They challenged the prosecution, relying on a defence in the NSW Act to the effect that it was not "reasonably practicable" for them to comply with their health and safety duties.

In the New South Wales Industrial Relations Commission, this defence was not accepted and the Kirk Group and its director were convicted and fined $121,000. ⁴

The Kirk Group and its director appealed against their convictions, contending that the nature of the charges against them made compliance with the NSW Act impossible. These appeals ultimately went all the way to the High Court of Australia, which unanimously quashed the original conviction on the basis that:

the charges brought against the Kirk Group and its director did not identify the specific grounds on which they allegedly failed to ensure health and safety - nor did the charges indicate what further steps should have been taken to mitigate relevant risks; and
the previous decisions had involved an error of law in convicting the Kirk Group and its director based on such insufficiently particularised offences.

The High Court took the view that these deficiencies prevented the Kirk Group and its director from properly understanding the charges against them, with the unfair result that they were unable to properly defend themselves against the charges. Therefore, their convictions were based on a jurisdictional error. The Court made it clear that in the future, any charges brought by the New South Wales safety regulator must identify both the risks a person was exposed to, and the measures the duty holder should have taken to prevent exposure to those risks.

EXPERIENCE SINCE KIRK

Since the High Court decision in Kirk, a number of workplace health and safety prosecutions across Australia have been challenged on the basis that the relevant safety regulator failed to adequately particularise their charges. These challenges have had varying levels of success, ⁵ leading to some inconsistency in how Kirk has been applied across jurisdictions.

THE DECISION IN NK COLLINS

In the NK Collins litigation, the Queensland courts were required to consider the extent to which the principles established in Kirk applied to charges brought under the Qld Act.

NK Collins was found guilty in the Industrial Magistrates Court of Queensland of contravening the Qld Act following the death of an employee who was crushed by a falling tree. ⁶ NK Collins appealed against its conviction, relying on Kirk to argue that it was not provided with sufficient particulars of the charge against it.

NK Collins' initial appeals were dismissed on the basis that there were material differences between the way in which the NSW Act and the Qld Act visited liability on duty holders; in particular, the Qld Act did not impose obligations based on practicability. In two decisions, the Queensland Supreme Court determined that the principles established in Kirk were not relevant to prosecutions under the Qld Act, and it was not necessary for Queensland's safety regulator to specify the acts or omissions that constituted any alleged contravention. ⁷

Based on the approach taken in these decisions, it was thought that Queensland's safety regulator was not required to identify the measures which should have been taken by a duty holder to ensure health and safety when bringing charges under that state's work health and safety legislation.

However, on 12 July 2013, the earlier decisions in NK Collins were overturned by the Queensland Court of Appeal. Like the High Court in Kirk, the Court of Appeal took the view that in prosecutions for offences against the Qld Act, Queensland's safety regulator must identify and particularise the measures which should have been taken by a duty holder to ensure health and safety, before a prosecution can succeed.

According to Holmes JA (with whom Fraser JA and Margaret Wilson J agreed):

In my view, it was incumbent on the prosecution to identify the measure or measures which should have been taken to ensure workers' safety from the risk; which would, presumably, have been a means stated in the Forest Harvesting Code of Practice. That would in turn clarify what the risk was, and whether it was alleged to emanate from the existence of dead trees which might fall or whether it was posed by some feature of the system of work. It would then fall to the applicant to make out its defence ... ⁸

The Court of Appeal referred the case back to the President of the Queensland Industrial Court for determination.

IMPLICATIONS FOR INVESTIGATIONS AND PROSECUTIONS UNDER CURRENT WORK HEALTH AND SAFETY LEGISLATION

Whilst Kirk and NK Collins each relate to state legislation that is no longer in force, they are useful case studies of the way in which safety regulators will need to undertake investigations and prosecute offences.

In addition to identifying the relevant risk to health and safety which a duty-holder is alleged to have breached, an investigator will need to obtain evidence to show that the means which should have been employed to remove or mitigate a risk were reasonably practicable.

This may result in investigations taking longer and greater reliance being placed upon expert evidence, for example, evidence provided by experienced inspectors, independent safety professionals or industry bodies. Evidence will also be led through reference to Australian Standards, regulations Compliance Codes and industry practice.

If you are investigated for offences against work health and safety legislation, you will need to be aware of the possible breadth of the investigation.

Footnotes

¹The Qld Act has since been replaced by the Work Health and Safety Act 2011 (Qld), which forms part of the nationally harmonised work health and safety legislation applying in all jurisdictions except Victoria and Western Australia.

²Kirk v Industrial Court of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1; (2010) 239 CLR 531.

³The NSW Act has since been replaced by the Work Health and Safety Act 2011 (NSW), which also forms part of the nationally harmonised work health and safety legislation.

⁴See WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 and WorkCover Authority (NSW) v Kirk Group Holdings Pty Ltd (2005) 137 IR 462.

⁵For example, in Thomas v Stevlyn Constructions Pty Ltd [2010] SAIRC 46, the South Australian Industrial Relations Commission took a similar approach to the New South Wales courts and held that the obligation of the prosecution to particularise complaints as described in Kirk was a feature of South Australian health and safety laws. However, in NK Collins (see footnote 6 below), the Industrial Magistrates Court of Queensland held that the prosecution was not required to provide such detailed particulars to succeed in a complaint under Queensland's health and safety laws.

⁶The decision at first instance was not published by the Industrial Magistrates Court of Queensland, but see the Industrial Court of Queensland's decision in NK Collins Industries Pty Ltd and Peter Vincent Twigg (C/2009/56) for details of that decision.

⁷See NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland & Anor [2010] QSC 373 and and NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland & Anor [2012] QSC 147.

⁸NK Collins Industries Pty Ltd v The President of the Industrial Court of Queensland [2013] QCA 179 at [59].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


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