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High Court of Australia Transcripts |
Last Updated: 29 September 2009
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S106 of 2009
B e t w e e n -
GRAEME JOSEPH KIRK
First Appellant
KIRK GROUP HOLDINGS PTY LTD
Second Appellant
and
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
First Respondent
WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR CHILDS)
Second Respondent
Office of the Registry
Sydney No S347 of 2008
No S348 of 2008
B e t w e e n -
KIRK GROUP HOLDINGS PTY LTD
First Applicant
GRAEME JOSEPH KIRK
Second Applicant
and
WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR CHILDS)
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON
J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 29 SEPTEMBER 2009, AT 10.16AM
Copyright in the High Court of Australia
__________________
MR G.J. HATCHER, SC: May it please the Court, I appear with my learned friend, MR C.S. WARD, for the appellants in S106 of 2009 and for the applicant appellants in S347 and S348 of 2008. (instructed by David Lardner Lawyers)
FRENCH CJ: I note there is a submitting appearance for the first respondent in the appeal.
MR M.G. SEXTON, SC (Solicitor-General for the State of New South Wales): If the Court pleases, I appear with my learned friends, MR J.V. AGIUS, SC, MR P.M. SKINNER and MS A.M. MITCHELMORE for the second respondent in the first matter, the appeal, for the respondent in the other two matters, the special leave applications, and for the Attorney-General of the State of New South Wales, who intervenes in all three proceedings. (instructed by Workcover Authority and Crown Solicitor for New South Wales)
MR S.J. GAGELER, SC (Solicitor-General of the Commonwealth of Australia): If the Court pleases, I appear with MR S.J. FREE for the Attorney-General of the Commonwealth intervening under section 78A of the Judiciary Act in each matter. (instructed by Australian Government Solicitor)
MR M.G. HINTON, QC (Solicitor-General for the State of South Australia): If the Court pleases, I appear with my learned friend, MR S.A. McDONALD, for the Attorney-General for South Australia, intervening in all three matters. (instructed by Crown Solicitor (SA)
MR S.G.E. McLEISH, SC: If the Court pleases, I appear with my learned friend, MR C.O.H. PARKINSON, for the Attorney-General for the State of Victoria intervening in all three matters. (instructed by Victorian Government Solicitor)
FRENCH CJ: Yes, Mr Hatcher.
MR HATCHER: May it please the Court, all three matters arise from the criminal convictions of our clients for contraventions of the Occupational Health and Safety Act (NSW). In our submission, it is appropriate that in one form or another those convictions be agitated before this Court as it is our contention that that legislation, the Occupational Health and Safety Act (NSW), has been applied and is being applied in a way that is not contemplated under the Australian Constitution and in a way that is inconsistent with Australian law as applied by this Court.
Can I briefly deal with the three matters before the Court and identify the issues which we submit arise in the proceedings. The first of the matters is the appeal in S106 of 2009. That is an appeal from the Court of Appeal of New South Wales which considered the matter by way of an application for prerogative relief. A notice of appeal is found in volume 3 of the papers at 1205. The grounds appear on 1207.
HEYDON J: Do you maintain your application for the relief which appears on 1207?
MR HATCHER: We do, your Honour.
HEYDON J: Is it really the case that, if you won, the convictions and sentences would be quashed? Would it not be a matter for rehearing?
MR HATCHER: It depends on at what level we win, your Honour. There are several levels arising from the various issues that will be canvassed in this case. There is certainly sufficient material before the Court, we would say, to allow those orders to be made. The Court sees from the grounds that the very matter we have opened on has been a contention we have advanced before the Court of Appeal unsuccessfully.
Accordingly, we argue that the construction of sections 15 and 16 of the Occupational Health and Safety Act afforded by the Industrial Court of New South Wales is wrong and so erroneous as to disclose jurisdictional error.
GUMMOW J: What is the nature of the jurisdictional error? Is it a case where you say there has been – it is so difficult to work out what the body appears to have thought it was doing, but one says there is constructively a failure to apply themselves to the statutory tasks.
MR HATCHER: Yes, your Honour. They have come to a view of the legislation and so construed the legislation as to make it impossible of compliance and we say that that cannot accord with the implications arising under the Australian Constitution.
KIEFEL J: Do you say that sections 15 and 16 with the defence provisions bear a construction which is more workable and can produce a proper outcome?
MR HATCHER: Indeed, your Honour.
KIEFEL J: And you will be addressing the construction of section 15 in particular?
MR HATCHER: We have addressed that in our written submissions, our principal submissions. We point to the construction that has been afforded very similar provisions in the United Kingdom, South Australia, Victoria and Western Australia where it is made to work by certain assumptions that this Court has said in the exercise of its common law jurisdiction are assumptions that all citizens are entitled to make as to the way in which people will act, assumptions that are put aside completely by the Industrial Court in the way it approaches the task.
KIEFEL J: Are you going to undertake the more textual consideration of section 15?
GUMMOW J: We have to start with that, do we not? We have to start from the ground up.
MR HATCHER: We do have to start with the statute, and it is a statute that, taken literally, as Justice Basten observed in the first Court of Appeal proceedings, simply cannot be complied with. You cannot ensure the health, safety and welfare of employees if that is what is literally required under the statute.
KIEFEL J: I do not mean to take you away from your overview, which is what you are doing at the moment, but perhaps you could later address the question of how one reads section 15(1) and whether or not the offence requires a more specific identification of acts and omissions and examples might be given by section 15(2), particularly when read with the defence provisions.
MR HATCHER: Quite, your Honour. Indeed, we will take the Court to a judgment of the Industrial Court, one of its earlier examinations, where it had been argued that section 15(2) was indicative of what the legislature had in mind in 15(1), that is, the breadth of 15(1) had to be read in conjunction with the specific duties identified in 15(2), and that was rejected by the Industrial Court, rejected on the apparent basis that if they were to accept that, then there would not be a conviction.
Now, there is a more specific point upon which the appeal rests, and the second of the special leave applications rests, and that is the question of corporate responsibility where we say that the Industrial Court just got it – in fact, never addressed itself to the very question that was agitated by the appellants in the proceedings before the Industrial Court and that simply concerns the conclusion of the trial judge that Mr Kirk, who it will be seen, was a person in ill health and unable - and without the skill to manage a farm did not personally assess the work that was to be done and did not personally give instruction and therefore the company did not.
It is a curious approach in a statute where there is a deeming provision that says if the company does not, the director does not. So we have a double deeming here. The judgment of the Court of Appeal is found in volume 3 of the papers at 1182. Justice Spigelman, his Honour the Chief Justice gives the leading judgment. He deals with the construction arguments that were advanced before the court at 1194 of the papers. He notes in paragraph 34, point 20 on the page:
The central thrust of the claimant’s submissions, repeated in a number of ways in oral submissions, was that the obligations under the OH&S Act must be capable of being complied with. To similar effect, the claimants submit that the Commission’s approach deprives the defence in s 53 of any significance.
His Honour accepted that that was not Parliament’s intention, however, he went on to find that the jurisprudence of the Industrial Court was not to that effect. His Honour found that the Industrial Court permitted at some exclusions for unduly remote or speculative risks and that was sufficient to make the legislation capable of compliance. In our respectful submission, it is not. There are risks that are plain and blatant in any employment. They have been recognised by this Court in NSW v Fahy in relation to police officers. For instance, prison officers, firemen, there are whole areas of work where risk is the very function that the employee is to undertake and they are not unduly remote or speculative risks.
If this legislation prevents an employer exposing an employee to a position where he is at risk, then it prevents some of the essential services in the State being performed. For that reason we say that the Court of Appeal was wrong to find that that exception is sufficient to bring the Industrial Court’s interpretation within jurisdiction. We further say that whilst his Honour said that the Industrial Court had accepted those exceptions, it is clear from the trial judges that his Honour the Vice President Justice Walton’s reasons he did not accept that those exceptions were part of the jurisprudence of the Industrial Court. If I could draw particular attention to paragraphs 37 and 38 in his Honour’s judgment.
The significance of these lines of authority is that it cannot be said that the Commission has, generally or in this case, adopted a position where it enforces obligations impossible of compliance or that no defendant can establish impracticability. In this regard I can detect no jurisdictional error. To apply the terminology of Craig supra at [23] above, the Commission has not misconceived its function, etc. Indeed, if there is an error of law, it is at most an error of interpretation within jurisdiction.
However, in substance, the claimants’ submissions, in my opinion, involve an assertion that the Commission, in practice, stretches the concept of risk to such an extent that the exception for “unduly remote or speculative” risks and the defence are deprived of practical content. Similarly, that the concept of what is “reasonably practicable” is extended beyond reasonable grounds. These errors, if any, are based on factual findings. This Court does not have jurisdiction to review an error of that character.
It well may be that the Court of Appeal in those proceedings does not have jurisdiction to review errors of that character, but that was not the contention we were advancing, nor is it the contention we advance here. We say that you need to look at the way the legislation is applied in the facts of a case to determine whether there has been an error in the approach, a misapplication of the law. It is only by looking at the way the law is actually applied as opposed to what might be said is taking place that one can detect such error.
Can we then observe that there are two things we wish to contend in relation to the general propositions about the construction of the Act and the way the Court of Appeal approached the task. Firstly we say, as I have just observed, that the way one ought examine the Industrial Court’s indeed any court’s exercise of jurisdiction is to examine how it is actually applied, not simply how it is said it is applied. Secondly, we say that when considering the scope of judicial error in the Industrial Court it is relevant to have regard to the place that section 179, the privative provision, has in the statute.
There are distinctions drawn in Craig between jurisdictional error in an administrative tribunal and jurisdictional error in an inferior court. The Court of Appeal approached its task on the basis that the Industrial Court is an inferior court. In fact, the Industrial Court is a superior court of record and we have dealt with all that in our principal submissions. When one comes to the test in Craig – we will develop this somewhat more when we get to it.
GUMMOW J: You use this phrase “superior court of record” but there is a whole lot of learning on just what that means, is there not, in this Court?
MR HATCHER: There is, your Honour. It would still be an inferior court for the purposes of Craig. It is a court of limited jurisdiction. The distinction that is drawn in Craig between administrative tribunal and an inferior court is a distinction we would say predicated upon the fact that a Court sits in a hierarchy at the apex of which sits this Court so its decisions as to law and fact are subject to review, subject to appeal and, of course, 179 seeks to prevent that in relation to the Industrial Court.
More particularly, 179, which is a section of the Industrial Relations Act which has quite some heritage, in fact one can go right back to the 1901 legislation and see its predecessor privative provision protecting an arbitral tribunal and this Court has often commented on that being the genesis of privative provisions in Commonwealth legislation generally, not uncommon at all for such a provision, but it is curious that it could affect this result. If Mr Kirk had had an employee reinstated and wished to have that decision reviewed, the test that would be applied on review is less strenuous than a review from a criminal conviction because the Commission, not sitting as a court, is protected by the same provision as the Court.
The appeal from the Court of Appeal also draws attention to the conclusion of the Court of Appeal that the failure of the Industrial Court to address the matter the subject of the appeal was not jurisdictional error, and with that we cavil. Can I take the Court to his Honour the Chief Justice’s judgment in that regard at paragraph 57 on page 1199 of the papers where his Honour said:
57 With respect to the decision of the Full Bench, the claimants submit that the Full Bench failed to deal with the submission which was based on the absence of any finding that Mr Palmer failed to take the relevant steps. The Court focussed only on whether Mr Kirk was the controlling mind of the company and concluded, incorrectly the claimants submit, that it was unnecessary to deal with their submission.
58 Indeed, the Full Bench said:
“[65] Walton J made certain findings . . . regarding the appellants’ failures to ensure the safety of employees and non-employees. Those findings were not challenged on the appeal except to the extent that it was contended his Honour failed to determine that the corporate appellant had in fact fulfilled its duty through Mr Palmer who, rather than Mr Kirk had been chosen by the corporate appellant to fulfil the duty and that there were no findings that Mr Palmer, as the controlling mind of the company in respect of the farm operations, committed any breach of the Act.
[66] We have found there was no error on the part of Walton J in finding that Mr Kirk and not Mr Palmer was the directing mind of the corporate appellant. Accordingly, it is unnecessary to consider the appellants’ contention that Mr Palmer committed no breach.”
59 The claimants assert that the failure of the Full Bench to consider the submission was jurisdictional error. I can see no relevant jurisdictional error in accordance with the formulation in Craig set out at [23]. Indeed, no attempt was made to identify how the failure to deal with a specific submission constituted a misconception of its functions, etc.
The submission that was put there and is put here is that an appeal was granted on one particular ground – that is, that the trial judge had not considered whether the company had failed in its duty in the context of the trial judge having found that Mr Kirk was ill and did not have the skills and that Mr Palmer had been given the job of managing the farm. No attention was paid at trial or on appeal to the question of whether the duty had been fulfilled. Rather, it was found that Mr Kirk had not fulfilled the duty and the conclusion was drawn therefore the company did not fulfil the duty.
FRENCH CJ: There was an endeavour to identify a managerial mind, was there not, and the only managerial mind was that of Mr Kirk?
MR HATCHER: Yes.
FRENCH CJ: Mr Palmer did not count as a managerial mind.
MR HATCHER: Quite, your Honour. Our contention is rather simple, though. It does not take a managerial mind to file a tax return. It simply takes someone to go down and put a tax return in the office of the Commissioner for Tax. When one comes to ask whether the tax return was filed in accordance with the legislation, one does not say, “Did Mr Kirk file the tax return?” One says, “Was the tax return filed?”
CRENNAN J: So are you raising a point that the wrong question has been asked in relation to this issue?
MR HATCHER: Yes, exactly, your Honour, more particularly, the question that was formulated by the Industrial Court on appeal and given the sequence of events, the Industrial Court was keen to have that question identified because they denied us leave on every other point and they simply did not address the one question that they had granted leave to entertain an appeal.
CRENNAN J: The question being whether the company had fulfilled its duty.
MR HATCHER: Quite, your Honour. Justice Hodgson at paragraph 62 said:
It is arguable that the Full Bench did not address the question whether Walton J erred in failing to consider whether or not it was proved beyond reasonable doubt that the corporate claimant did not, by its employee Mr Palmer, take steps which materially reduced the relevant risks; but I agree with Spigelman CJ that this was not a jurisdictional error.
The second matter before the Court today - - -
HEYDON J: Can I just interrupt? On page 1191, paragraph 23 of Chief Justice Spigelman’s reasons, he sets out three passages from Craig’s Case which he says the claimants invoked. Does that limit the extent of your invocation of Craig’s Case, or was there more to it?
MR HATCHER: That was the substance of it, your Honour, but we were keen to say there and to say here that Craig’s Case did not purport to close off the classes of error, and we say that the errors that are identified here are substantial errors. Whether one wants to characterise it as a misconception of the function, a failure to deal with the task before it, a misunderstanding of the law to apply, there are many ways one can characterise what has taken place, and at one stage I think we were criticised by putting our submissions by way of mere assertion, but when one has the categories in Craig set out as they are, one asserts that the particular case falls within a particular category.
In the ultimate, it comes down to what his Honour the then Chief Justice, Sir Frederick Jordan, said so many years ago: “There are mistakes, and there are mistakes.” These mistakes, we say, are substantial. They are the sort of mistakes that cannot sit in an orderly system of justice when an appellant is not heard on the one matter in respect of which he is granted leave to appeal, when a piece of legislation is applied in a way that it cannot sensibly be complied with.
GUMMOW J: Where does Chief Justice Spigelman explain why there was no jurisdictional error?
MR HATCHER: I have taken your Honour to the passages that deal with that. He simply says - - -
GUMMOW J: That is it, is it?
HEYDON J: Paragraph 59 is the high point.
KIEFEL J: Paragraph 37, I think, was the earlier reference that you made.
MR HATCHER: I think 37, your Honour, dealt with the question of the approach to the legislation which I earlier read, and as your Honour says, 59 is the extent of the exposition of his Honour’s reason.
GUMMOW J: Are you saying there is an error of interpretation within jurisdiction?
MR HATCHER: Yes.
KIEFEL J: That is probably a reference to Craig [1995] HCA 58; 184 CLR 163 at the end of page 179, and the top of 180, where the Court distinguishes - - -
MR HATCHER: The inferior court from the - - -
KIEFEL J: From the tribunal in relation to posing the questions that they have to answer as being within jurisdiction.
MR HATCHER: Yes, your Honour.
KIEFEL J: What do you say about the approach in Craig to that not being a jurisdictional error, but that the misconstruction of a statute would be?
MR HATCHER: Well, your Honour, I think that was the point I was rather clumsily trying to make earlier about one asserts one falls into a particular category in Craig and the Court may find a different category. There are errors of interpretation clearly that do not involve a misconstruction of the statute to the extent that we complain of in this circumstance.
FRENCH CJ: Is it clear that Chief Justice Spigelman is saying anything other than that the Commission has not misinterpreted the legislation? Just look at 37 again. I am just not clear that there is any acceptance that there is any question of misinterpretation within jurisdiction.
MR HATCHER: I think the last sentence, your Honour, is the guide to it.
FRENCH CJ: That is just a contingent thing.
MR HATCHER: Yes. He says that we may have satisfied him as to errors of law. It is to be remembered that this was the second time his Honour had looked at this case. There was an approach to the Court of Criminal Appeal and the Court of Appeal immediately from the trial judge on the basis that section 5 of the Criminal Appeal Act provided an alternative to section 5A, an alternative route to the Court of Criminal Appeal. We were reasonably candid in saying that we did not think our prospects were strong before the Industrial Court in cavilling with the line of authority.
So an attempt was made to bring the matter before the Court of Criminal Appeal and it might be said that we received some sympathy from either that court or the Court of Appeal – they sat together for the purposes of the case – with some of our arguments. Indeed, it seemed that the basis upon which we were sent back to the Industrial Court was that the propositions we wished to advance were sufficiently arguable that the Industrial Court ought have an opportunity to consider them.
FRENCH CJ: I am not sure how one makes an error of interpretation within jurisdiction if the error leads you not to address the question which the statute requires you to answer.
MR HATCHER: Yes.
HEYDON J: Mr Hatcher, do you get any support from decisions in this Court on the Migration Act? If the Refugee Review Tribunal radically misconstrued the Migration Act, one, and two, did not attend the claimant for refugee status, so far as the key case was advanced, it does not usually take very long to conclude that there are two jurisdictional errors.
MR HATCHER: Your Honour, I think the difficulty is that that her Honour Justice Kiefel was raising with me a minute ago. It is a question of what one has to say as to the effect of Craig when dealing with an inferior court as opposed to an administrative tribunal.
HEYDON J: One minute we have a superior court of record equivalent in status to the Supreme Court of New South Wales and the next minute we have an inferior court, in the sense controllable by certiorari, yes.
MR HATCHER: Yes. It is a statutory court and it is subject to prerogative relief in the court of general jurisdiction in the State.
CRENNAN J: Because it has limited jurisdiction.
MR HATCHER: Yes.
HEYDON J: It does not seem to sit properly though. It is strange that courts correctly are so astute to try and detect or at least to examine whether there is jurisdictional error by recourse to errors of statutory construction and natural justice in the Refugee Review Tribunal, but not particularly so with the Industrial Court.
MR HATCHER: When one goes to Craig, there is a proposition that administrative tribunals are generally composed of non-judicial officers, non-lawyers, but when one goes to the privative provisions that have protected arbitral tribunals, of course arbitral tribunals in this country have by and large been constituted in the States by Supreme Court judges in their early history and the Commonwealth’s arbitral tribunal was thought to be a court until the 50s, yet prerogative relief has been available.
So the point of distinction does not seem to be so much the judicial training or the legal training of the person constituting the tribunal, it appears to be – and we in due course will submit it is – that those courts sit within a hierarchy of courts at the apex of which is this Court. If we are wrong in our contention that an appeal lies from the Industrial Court to this Court by one means or another, then we say that distinction drawn in Craig between jurisdictional review of an administrative tribunal and an inferior court is not available when one comes to a court protected by an extensive privative provision.
HAYNE J: To inject the privative provision into the debate at this stage is, I would suggest, apt to confuse. First we have to identify whether, absent the privative clause, relief would go. In determining whether relief would go, no doubt we have to have regard to what is said in Craig. We have to understand it, though, having regard, amongst other things, to what is said, albeit in the context of section 75, in The Queen v Gray Ex Parte Marsh [1985] HCA 67; 157 CLR 351, particularly at 385 to 386, about certiorari and in relation to mandamus and prohibition going to enforcing the exercise or restraining excess of jurisdiction by a court of limited jurisdiction, regardless of whether it is described as a superior or an inferior court. What is relevant is limits of jurisdiction.
In this case, in considering the Court of Appeal’s decision and what is said at paragraph 59 on 1199, does that proceed from an understanding of what section 15 – perhaps section 15 in conjunction with 16, perhaps 15 in conjunction with 16, section 50 and 53 – means when it says that “every employer shall ensure”? It proceeds from an understanding, I would have thought, that the phrase “employer shall ensure” requires in the case of a corporation identification of a singularity of directing mind and identification of a singularity of directing mind that is at the apex of whatever internal organisation of that corporation may be.
The power of the Industrial Court to make orders against this corporation depended ultimately upon the construction of, amongst other things, section 15, I would have thought, and what was meant by “employer shall ensure”. Unless we take it step by step, we are going to get confused, Mr Hatcher.
MR HATCHER: If it please your Honour, I am at this stage attempting to explain what is before the Court and then I will take it step by step through the legislation. The second matter that is before the Court, matter S347, is an application for special leave to appeal, an appeal if leave be granted, from a judgment of the Industrial Court refusing leave to appeal out of time. That judgment is reproduced at page 971 in volume 3 of the papers.
If I can remind the Court, the way in which this application came about was our clients had approached the Court of Criminal Appeal seeking to agitate an appeal under section 5. That was an appeal that was lodged within time and in accordance with the requirements of the legislation and it was a section that appeared on its face to provide an alternative right of appeal. The question was to be determined on whether proceedings commenced by way of an application for order where proceedings on indictment, the matter that had not fallen for determination previously, there being an expanded definition of “proceedings on indictment” in the legislation. His Honour Justice Basten dealt with the matter in quite some length and detail and there was no appeal from his Honour’s judgment on that. But, in our respectful submission, it was a contention that was open and entitled us to agitate the appeal through that form if it be available.
There was also conducted applications for prerogative relief. At the time the applications were filed the jurisprudence of the Court of Appeal was that the effect of section 179, the privative provision of the legislation, was such that if the Industrial Court actually finalised its proceedings there was nothing that could be done, whereas if one approached before the Full Bench of the Industrial Court determined the matter, the Court of Appeal could act, and that was an approach that ultimately, I think, came before this Court in a series of cases, among them Fish, which is referred to by our learned friends in Old UGC. In any event, the Industrial Court accepted that it was appropriate for our clients at the time they did to seek prerogative relief in the Court of Appeal, but the Industrial Court thought that it should have been withdrawn when section 179 was amended.
In any event, the Court of Appeal in its judgment had found that the points that we wish to argue were arguable, that it could not be said that they would not be considered by the Industrial Court because, as his Honour Chief Justice Spigelman found, they had not been put on the face of the judgments of the Industrial Court in the way that they were being put before the Court of Appeal and so we went back before the Industrial Court to seek leave to appeal out of time and that leave was denied.
Can I remind the Court that we have dealt with this matter in some detail in our principal submissions at paragraphs 58 to 74 and I do not propose repeating them orally. Can I, however, draw attention to the particular passages in the Full Bench reasons which we say exemplify the nature of the complaint we have raised in our submissions. The first of those is at paragraph 29 of the judgment on page 990 of the papers. The Court said this:
The reason for the delay is very apparent: the applicants considered their chances of overturning the convictions and sentences were significantly better in the Court of Appeal than before the Full Bench of this Court. The reason they took that view was obviously because their legal advisers considered the weight of precedent in this Court’s occupational health and safety jurisdiction was decidedly against the applicants’ case. Having taken a deliberate decision to pursue relief through the Court of Appeal and having failed in that regard, should leave now be granted by this Full Bench to allow the applicants to appeal the judgments at first instance in this Court given the extensive delay, the apps having plainly engaged in forum-shopping?
Then at paragraph 31:
It is undoubtedly the case that the matters that were the subject of the applicants’ challenges in the Court of Appeal were all matters capable of being the subject of an appeal before the Full Bench of the Industrial Court. Moreover, in the proceedings before the Court of Appeal, Spigelman CJ was “not satisfied that it would be futile to allow the Full Bench to consider an appeal in the present proceedings”.
They conclude:
Accordingly, there was no reason of substance why an appeal could not have been brought, within the prescribed time -
Then at paragraph 42 on page 995:
The respondent, after all, has a vested right to retain the fruits of the judgments the subject of the appeal . . . In circumstances where the respondent has been put to the task of defending proceedings in the Court of Appeal, the applicants plainly have no automatic right to appeal to this Court well out of time.
FRENCH CJ: What are the fruits of the judgments in this case?
MR HATCHER: The prosecutor in these proceedings get a moiety of the fine. Of course, the only way in which the prosecutor could be denied those fruits is if we were successful on the appeal.
HEYDON J: Mr Childs gets a moiety of the fine?
MR HATCHER: I think WorkCover actually take the benefit of it, your Honour.
HEYDON J: We have a distinction between WorkCover and the Government of New South Wales who get the rest of the fine, presumably.
MR HATCHER: I have not examined, your Honour, in whose accounts it comes up. I think it probably goes into consolidated revenue but there may be some accounting between our learned friends’ respective clients.
FRENCH CJ: The prosecutor was the natural person, Mr Childs, was it?
MR HATCHER: Yes, but only in his capacity as an inspector.
FRENCH CJ: Yes, I understand that, as an authorised person.
MR HATCHER: The third matter before the Court, S348, is an application for special leave to appeal and an appeal, if leave be granted from the judgment of the Industrial Court, given in relation to the one matter in respect of which leave to appeal out of time was granted. That was the question of corporate responsibility. Can I ask the Court to turn to the appeal papers, which are found at volume 3 of the book at 1007, and can I remind the Court that in granting leave, the Industrial Court was keen to ensure that it was only this ground that would be agitated:
Grounds of the appeal are:
That His Honour erred in proceeding to record a conviction and sentence in respect of each Appellant in circumstances in which:
(i) His Honour dealt inappropriately with issues of corporate responsibility by failing to determine that the company had in fact fulfilled its duty through Mr Palmer who, rather than Mr Kirk, had been chosen by the company to fulfil the duty; and/or;
(ii) His Honour erred in finding that the company relevantly acted to fulfil its duties through the agency of Mr Kirk rather than Mr Palmer.
So the issue was, in our respectful submission, fairly clearly defined. It had been, according to the Industrial Court, refined for us with the assistance of the Court of Appeal. We rather thought we had formulated the case in that way ourselves, but be that as it may. The appeal judgment appears at page 1075 of the papers, and at page 1082, paragraph 8, having recited the appeal grounds, the court says:
Whilst it may not be immediately evident from the appeal grounds, the essence of what is contended on appeal is that a corporation may not act other than by human agency; that it was not Mr Kirk who was the controlling mind (or ego or alter ego) of the corporate defendant in so far as the management of the farm was concerned, including the responsibility for occupational health and safety, but rather it was Mr Palmer in respect of whom no finding was made of any failure to ensure safety. That being the case, it was submitted, Walton J erred in finding that the corporate defendant contravened the provisions of the Act because of acts or omissions on the part of the human agency, namely Mr Kirk and, ipso facto, Mr Kirk was not criminally liable, it not having been alleged he independently contravened the Act.
With respect, that does not reflect appeal ground 7, nor does it reflect what was argued. The argument was simply this. Mr Palmer was the man on the ground doing things. If you wanted to know whether employees had been checked before they were allowed to utilise the ATV, if their skills were assessed, if there were restrictions placed on the use of the ATV, you had to look at what Mr Palmer did. He was the person acting for the company. He was not the controlling mind.
Mr Kirk was clearly the director. He controlled the finances, he dictated the direction of the company, but in terms of the operation of the farm, Mr Palmer, the only employee, was the person who directed the operations of the farm. Mr Kirk was ill, and he did not have the skills. He employed an experienced farm manager. That person gave directions to the people who worked on the farm. If you wanted to know whether the directions they were given were safe, ensured their health, safety and welfare at work, you had to have regard to those directions. You could not say Mr Kirk did not tell these people to drive the ATV carefully, therefore the company did not. They had employed Mr Palmer to fulfil that task, and that case is just never considered.
At paragraph 20 on page 1087 of the judgment, their Honours recite from the trial judge’s judgment and at the bottom of page 1087 the finding that I have referred to is extracted.
Mr Kirk did not take an active role in the operation of the Farm due, at least in part, to his ill health and lack of farming experience. Mr Kirk effectively conferred the responsibility for all operational aspects of the Farm on Mr Palmer, including responsibilities for occupational health and safety. Mr Kirk gave evidence that he provided occupational health and safety training to Mr Palmer.
That evidence is recited. But it was Mr Palmer who was there doing the job.
FRENCH CJ: Of course, if Mr Palmer failed to discharge then the company is liable and Mr Kirk is liable by virtue of section 50.
MR HATCHER: Quite, your Honour. We accept that. This is not an argument about the capacity of a company to delegate.
FRENCH CJ: No.
MR HATCHER: Of course, it may be – and we do not need to take that case here – that the only way in which a company can discharge its duty is by engaging someone who it must trust to do it. A classic example, of course, is if there was electrical work to be done on the farm. Mr Kirk, to discharge the company’s responsibility, could only, so far as that skilled electrical work is concerned, discharge it by engaging a skilled electrician. It cannot be said that Mr Kirk has to then go and supervise the work of the electrician.
FRENCH CJ: The mere engagement of the electrician would not discharge the duty. The electrician would have to do those things which attributable to the company discharged the duty.
MR HATCHER: Your Honour, it is a question of what is then attributable to the company. If all that the company can do, and this perhaps brings in the reasonably practicable aspect of the legislation in other States, if all that practicably could be done is to engage the services of an apparently skilled electrician, then there is not much more that can be done.
BELL J: Just looking at Mr Kirk’s deemed liability under section 50(1), does anything turn on the fact that he was charged as a person concerned in the management as distinct from being charged as a director? The subsection contemplates liability on either basis and I was just wondering if anything - - -
MR HATCHER: Nothing arises from our submissions on that, your Honour. Can I then turn to page 1090 of the papers where the court deals with the trial judge’s findings on liability at paragraph 24, point 36.
At [105] of the judgment on liability, Walton J summarised the evidence constituting the basis for finding liability in respect of the corporate appellant, noting the failures listed were the failures of Mr Kirk.
(a) had not seen or read the Owner’s Manual prior to Mr Palmer’s accident;
(b) did not supervise the daily activity of employees or contractors working on the Farm -
Can I just pause there. A director of BHP has an obligation to supervise the daily activities of the employees of BHP –
(c) did not conduct a risk assessment, or request any other person to conduct a risk assessment, regarding the use of the ATV on the Farm.
The remainder are there. It is all focused on what Mr Kirk did or did not do. There is no attention to whether employees were asked what their skills were, whether an assessment was made of their skills, what they were asked to do on the ATV, no assessment of any of that. The question is, what did Mr Kirk do? The court recites the appellant’s submissions at page 1098 of the papers from point 40. The appellant submitted:
Whilst it may be accepted that Mr Kirk was the controlling mind of the Company which owned the property..., it may equally be accepted that Mr Kirk lacked the skills, qualifications or experience to play any role whatsoever in the operation of the farm. The Company could, in those circumstances, act only through the advice, assistance and experience of an appropriately qualified person.
That was not the contention, is not the contention. If it is delegated to another person, you need to look at what that person did, whether the duty was complied with.
FRENCH CJ: What did you say at trial that Mr Palmer did?
MR HATCHER: We said, your Honour, that he only engaged on the farm experienced farmhands. He was in a position to assess their capacity to ride an ATV. We are talking about farmhands, in one case, who had been competing in motocross for some 50 years. The one employee who had only been riding a motorbike since he was 13, a period of some eight years, was restricted to riding the ATV on the roads, expressly restricted, and had to ask permission. So there was evidence before the Court that access to the ATV was different as between different employees and that there had been an assessment of the skill of the employees to ride the bike.
GUMMOW J: Where does this expression “controlling mind” come from?
MR HATCHER: From the judgment of the Court, your Honour.
GUMMOW J: I know, but where do they get it from?
MR HATCHER: Your Honour, it seems to have been their interpretation of the question raised by the appeal point.
KIEFEL J: It appears to be in the appellants’ submissions at paragraph 33 on page 1098, line 43.
MR HATCHER: That is so, your Honour, but I think it comes responsive to an approach - - -
KIEFEL J: The previous decision of the Full Bench.
MR HATCHER: Yes.
KIEFEL J: In relation to the extension of time to appeal.
MR HATCHER: And within the argument of the case before the court.
HAYNE J: I would have thought it starts at 1016, paragraph 12 of your side’s submissions. I am not sure, but the phrase is picked up that the idea is - - -
MR HATCHER: There was certainly a reliance on Tesco, your Honour, which of course does invoke that notion.
GUMMOW J: Tesco has been looked at in this Court, has it not?
MR HATCHER: I am not sure that it has been looked at in this context in this Court, your Honour.
GUMMOW J: It has certainly been looked at in the context of the Trade Practices Act.
MR HATCHER: Yes. Turning to page 1099, from paragraph 30, the Court then turns to British authority, or UK authority, and we have no complaint about that.
FRENCH CJ: Paragraph 36, is it?
MR HATCHER: Yes, your Honour. We say that much guidance can be obtained from United Kingdom authority. There, the question of reasonable practicability forms part of the duty but the legislation has its origins exactly where the New South Wales legislation has its origins. It goes back to the Robens Report in the UK examining appropriate legislation to regulate health, safety and welfare at work. The difference, as I say, was in the UK and elsewhere in Australia, reasonable practicability conditions the duty and so one does not need to focus as closely on what the duty is.
In the UK reasonable practicability is for the defendant to make out, that is, the defendant must establish on the balance of probabilities that it was not reasonably practicable to take the steps alleged against it, whereas in Australia elsewhere than New South Wales as a result of this Court’s judgment in Chugg v Pacific Dunlop, which we will come to, it is for the prosecutor to negate reasonable practicability. In any event, guidance was sought by the court from the English authorities.
Can I take the Court to page 1103 of the papers, where their Honours are citing from R v Associated Octel Co Ltd [1995] ICR 281 and at 293 they extract this:
The question of what is reasonably practicable is a matter of fact and degree in each case. It will depend on a number of factors so far as concerns operations carried out by independent contractors; what is reasonably practicable for a large organisation employing safety officers or engineers contracting for the services of a small contractor on routine operations may differ markedly from what is reasonably practicable for a small shopkeeper employing a local builder on activities on which he has no expertise. The nature and gravity of the risk, the competence and experience of the workmen, the nature of the precautions to be taken are all relevant considerations.
These are all matters that in the UK would have been taken into account, that, in our submission, are not taken into account by the New South Wales Industrial Court. Then at paragraph 50 on page 1104, the court in R v Gateway Foodmarkets [1996] EWCA Crim 1768; [1997] 2 Cr App R 40, went on to consider the problem of an employer incurring criminal liability for isolated acts of negligence by a junior employee. The court said:
We agree that it is a somewhat extreme contention that the employer should be held criminally liable even for an isolated act of negligence by a junior employee, affecting the health, safety or welfare either of a fellow employee (section 2(1)) or of some other person (section 3(1)). The question is whether that extreme consequence is one which results from the proper construction of the two subsections.
We would hold not, but we hasten to add that a conclusion on this issue is not necessary for the purposes of the present appeal.
The answer lies, we suggest, in the application of the qualification or caveat contained in the statue itself. The duty under each section is broken if the specified consequences occur, but only if “so far as is reasonably practicable” they have not been guarded against.
Might we stress this next sentence –
So the company is in breach of duty unless all reasonable precautions have been taken, and we would interpret this as meaning “taken by the company or on its behalf”. In other words, the breach of duty and liability under the section do not depend upon any failure by the company itself, meaning those persons who embody the company, to take all reasonable precautions. Rather, the company is liable in the event that there is a failure to ensure the safety, etc., of any employee, unless all reasonable precautions have been taken--as we would add, by the company or on its behalf.
You would think in the context of the grounds of appeal, if one was citing this authority, one might be alive to the point that was being taken. Then on page 1106, paragraph 52:
In the present case it was contended, as we have said, that Mr Kirk did not have the capacity to manage the farm, including taking responsibility for occupational health and safety, and that this function was wholly delegated to Mr Palmer. This is no different to the employer in Associated Octel –
Can I remind the Court, Associated Octel, the court made the distinction between the large enterprise employing safety engineers and the small shopkeeper. This is a farm with but one employee –
This is no different to the employer in Associated Octel entrusting the task of repairing the lining of a tank within the chlorine plant to an independent specialist contractor, or the employer in Nelson Group Services relying on its fitters to install gas appliances in domestic premises, or the employer in British Steel relying on its engineer to supervise the work of re-positioning the steel platform. In none of those cases was the controlling mind of the corporation capable of undertaking the work. Nevertheless, in none of those cases was it accepted by the court that the employer could delegate its duty –
No, but the court did turn its attention to whether the duty was fulfilled by the company or on its behalf. The court comes to its conclusion in paragraph 52, returns to the subject of the controlling mind at 1108, paragraph 57:
In the present appeal we are left in no doubt that Mr Kirk was the controlling mind of the corporate appellant. He was the managing director of that entity and on his own evidence, and as Walton J found, Mr Kirk had “total control” over the corporate appellant’s activities. Moreover, we do not accept that Mr Kirk lacked the necessary knowledge and skill to manage occupational health and safety on the farm; the evidence was that he conducted, independently, engineering and printing businesses and was capable of formulating and administering an occupational health and safety policy in respect of those businesses.
Now, we will seek to develop in our submissions the folly, we would say, of the approach that the Industrial Court has adopted to its safety jurisdiction. It focuses on forms rather than outcomes. Was there a risk assessment? Did Mr Palmer sit down and fill out a form? We would say it is sufficient that Mr Palmer said, “You have been riding motorbikes for 50 years competitively now, you have got a fair idea about how to operate motorbikes. This bike is a bit different, this is the way it works. Are you comfortable with that?” But the court would have it that a form had to be filled out, that risk assessment. Then at 1110 from about point 30:
It was not open to the appellants in the circumstances to delegate the corporate appellant’s duty to ensure safety and, therefore, the corporate appellant could not fulfil its duty by purporting to transfer corporate responsibility to Mr Palmer.
This is saying that the only person who can fulfil a company’s duty to ensure safety is the director or the controlling mind. How could this statute be capable of compliance for BHP?
GUMMOW J: This question of controlling mind, it might be useful at some stage to look at what the court said in Eurolynx Properties Limited (1995) 183 CLR 563 at 582 to 583. There are dangers in the expression just becoming some sort of slogan, I think.
MR HATCHER: Thank you, your Honour. In any event, the court continued at paragraph 61:
These conclusions are sufficient, in our view, to dispose of the appeal. However, although it was not contended at first instance or on appeal, we wish to consider the position as if the submission had been put that the corporate appellant had, at the level of its directing mind – namely Mr Kirk – entrusted the responsibility for occupational health and safety at the farm to Mr Palmer because of his experience and expertise (and the appellants’ lack of it) and in doing so had discharged its obligations to ensure safety –
Again, in our respectful submission, the obligation to ensure safety is not filling out a risk assessment. The obligation to ensure safety is to look at what the employee is doing and ensure that he can do it safely.
HEYDON J: Can we just go back to the end of paragraph 59:
the corporate appellant could not fulfil its duty by purporting to transfer corporate responsibility to Mr Palmer.
I am looking at page 8 of volume 1. If Mr Palmer had provided safe systems at work in relation to the ATV and had provided information, instructions and so forth and taken necessary steps and ensured that only trained people operated it, there would be no conviction, would there?
MR HATCHER: On this analysis there would, your Honour, because Mr Kirk had not done it and there is nothing to suggest that Mr Palmer did not do that.
HEYDON J: So in the evidence in this case, did anyone examine – obviously Mr Palmer could not give evidence, but were workmen asked about what Mr Palmer had told them?
MR HATCHER: Yes, your Honour. They all gave evidence. The evidence was that they were shown how to operate the ATV, some by Mr Palmer, bearing in mind that there is a fencing contractor involved as well, Mr Palmer showed Mr McLeod, also known as Barker, who in turn showed his employees. But as to the direct contractors, their evidence was Mr Palmer showed them how to operate, told them to take it easy, stay on the tracks and there are warning decals. It is a new ATV. It has got the warnings on it “Do not go over hills”, “Be careful of towing”, and so forth.
HEYDON J: I do not want to hold you up, but if you could just give us a reference to where, if it all, Justice Walton discussed that evidence and what findings he made about it. If he did not make any obviously, then - - -
MR HATCHER: Yes, your Honour.
FRENCH CJ: In a sense, you do not need to cavil with the proposition at the end of paragraph 59 to the extent that it says simply that the company does not discharge its duty by the act of delegation. Your complaint, as I understand it, is the question that should have been examined and was not was, did the company discharge its duty through what Mr Palmer did?
MR HATCHER: Yes.
FRENCH CJ: Which is relevant directly to what I think Justice Heydon was putting to you.
MR HATCHER: Certainly his Honour found that Mr Kirk did not do any of these things. His Honour found that, apart from one exception – bearing in mind we are talking about five people – access to the ATV was unrestricted. The evidence was that Mr Palmer did speak to them but after he had shown them how to operate it he allowed them to operate it. He knew what purpose they were operating it for. This is an all-terrain vehicle and it is only being operated on farm roads.
FRENCH CJ: How does your contention work as a defence to the first of the charges, if I can call it that, at page 2 on appeal book 1:
FAILED TO
ensure the health, safety and welfare at work of its employees, in particular Graham George Palmer - - -
MR HATCHER: The Court will have seen from the submissions put against us that we are accused of distracting from the actual charge by focusing on Mr Palmer’s conduct. One assumes that carries with it the concession that Mr Palmer’s conduct was so foolhardy and so aberrant that it cannot be expected that we could have prevented that. We will come to explain why that is so, but that was the finding his Honour the Chief Justice, Chief Justice Spigelman, was content to make.
If that is the case, where is the reason to suspect any other employee is going to go barrelling down a slope towing lengths of pipe? If the step you take to prevent that is insist on the employee undertaking some training and reading the manual, both those steps were taken with Mr Palmer. He knew what he was doing.
Your Honour Justice Heydon asked about Justice Walton’s findings on use of an instruction in relation to the machine. They are to be found at volume 2, pages 780 to 784. We will attempt to provide further assistance this afternoon. Can I then turn to page 1112, paragraph 63.
We do not consider that Mr Kirk took proper and sufficient steps to satisfy himself Mr Palmer had the skill, experience or knowledge to manage occupational health and safety on the farm and simply assumed that to be the case. In that circumstance, there could have been no effective delegation by Mr Kirk, or the corporate appellant, to Mr Palmer to manage safety at the farm.
All the employees gave evidence that what Mr Palmer did was absolutely stupid and they would not do it. They did not need to be told; they did not need a risk assessment; they did not need a formal instruction. It was just plain madness.
CRENNAN J: I think a lot of them said it came down to common sense.
MR HATCHER: Yes.
HAYNE J: Paragraph 63 appears to be an adoption of the argument advanced at 1028, particularly between lines 30 and 42, which was the argument advanced on behalf of the respondent in the appeal.
MR HATCHER: Yes. Their Honours reached their conclusions in paragraphs 65 and 66 dismissing the appeal. Can we then deal with the issues that we say arise in these proceedings.
HAYNE J: But just before parting from paragraph 63, the point about the adoption of the argument seems to be the search for the singularity of controlling mind. That is a proposition that seems to depend upon a particular construction of “employer shall ensure”.
MR HATCHER: Your Honour, it is a construction that is at odds with the authority they cite. Gateway Foods as dealing with very similar legislation.
HAYNE J: That may be, but we are not in the realm of a general appeal, Mr Hatcher. I just want to understand the basis upon which the Full Bench appears to have operated.
MR HATCHER: May it please. We then say that there are a number of issues that arise in the context of these proceedings. The first issue, which we would hope to satisfy the Court in our submissions of, is that the Industrial Court has interpreted the relevant provisions of the Occupational Health and Safety Act in a manner which is erroneous, impossible at compliance, contrary to the rule of law, inconsistent with relevant High Court authority and inconsistent with relevant interstate authority. The issue which seems pre-eminent in the extensive and formidable submissions arraigned against us is whether we can agitate an appeal from the Industrial Court before this Court.
That issue has within it a number of issues which are themselves of considerable importance. The first is, is the Industrial Court a Supreme Court for the purposes of section 73(ii) of the Constitution when exercising criminal jurisdiction? Second, was the Industrial Court exercising federal jurisdiction in the course of considering the application for leave to appeal, and the third, is the reference in section 73(ii) of the Constitution to a State Court exercising federal jurisdiction confined to the conduct of such a court in the actual exercise of such jurisdiction? The Court will have seen from our submissions in reply we did not actually set that hare running, but we think it has some legs.
FRENCH CJ: This is coming out of the South Australian submissions?
MR HATCHER: Yes, your Honour. If it is found that an appeal lies, that resolves a number of other issues. If, however, it is found that there is no right of appeal, other issues remain. First among them is the question of whether it was within the power of the New South Wales Parliament under the Constitution to purport to remove the criminal jurisdiction of the Supreme Court in relation to industrial safety. Put another way, is it competent for a State Parliament within the meaning of 73(ii) to remove a core criminal jurisdiction from the supervisory jurisdiction of this Court when appeals from criminal sentences lay to the Privy Council at the time of Federation.
Again a number of questions arise. Is the restriction in section 73 of the Constitution on the right of the Commonwealth Parliament to prevent the High Court hearing certain matters to be understood as prohibiting State Parliaments from imposing any limitations on appeals to the High Court? And does the integrated Australian judicial system to be applied in the Constitution as a result of this Court’s judgment in Kable prevent State Parliaments from removing matters from that judicial system by purporting to prevent appeals to their Supreme Courts and in turn the High Court?
Then, if the Court is against us in all that, that is, there is no appeal available and it was open to New South Wales to insulate this island of jurisprudence separate from the mainstream, further questions arise. Does the implication of the rule of law in the Australian Constitution bind State courts such that it is beyond the jurisdiction of a State court to, in the face of competing interpretations of state law, apply an interpretation that makes the law impossible of compliance and therefore contrary to the Constitution?
Secondly, if a State can immunise one of its courts from appeal within the hierarchy of the integrated Australian judicial system, is that court’s authority to decide matters, or its jurisdiction, to be strictly confined to deciding such matters consistent with the jurisprudence of this Court and the courts of the integrated Australian judicial system? Do they have a jurisdiction to develop an island jurisprudence? Thirdly, is a court which is protected from appellate review any different from an administrative tribunal for the purposes of applying the tests in Craig? And finally, is it within the jurisdiction, even of an inferior court, to determine an appeal before it without considering the principal argument put by the appellant upon which leave to appeal was granted?
Now, if it please the Court, we would like to take a step by step analysis of the legislation. I turn firstly to the Occupational Health and Safety Act 1983 (NSW), section 15. Can I remind the Court that the recommendations of the Robens Committee, adopted by the Williams Report in New South Wales, was that the way in which safety legislation should be set up was to establish a general duty, an overarching general duty, akin to the common law duties of an employer, extend the duty to employees and extend the duties to the self-employed, but the duties were largely those already recognised by the common law.
That was to be a general duty and it was to be supplemented by specific regulation in various areas. As the Court will have seen from our principal submissions, that is a model that was also adopted in the United States. In New South Wales there are some specific regulations but by and large prosecutions proceed under the general duty. Subsection (1):
Every employer shall ensure the health, safety and welfare at work of all the employer’s employees.
expressed in absolute terms, not subject to what can practicably be done, no question of reasonable steps. At the time the legislation was brought in, there was similar absolute safety legislation. There was an absolute duty to fence any machinery which was dangerous and, as we point out in our principal submissions, in Buckley v Dunlop Rubber the question of what that might mean, what was dangerous, resulted in a close majority in this Court as to whether a jury could properly come to find a piece of machinery not dangerous. The absolute terms of legislation such as this has not previously evoked such absolute results. The legislation has to be read in the context in which it applies. The context in which it applies is - - -
GUMMOW J: You cannot just read Part 3. You have to read Part 6, have you not? That is the offence provisions.
MR HATCHER: That is what is put against us, your Honour. We will come to develop why that may not be so. It is not fatal to our argument if one does because we say if you do have to read Part 3 with Part 6 why would it be any different in New South Wales than in every other State in the Commonwealth?
KIEFEL J: Do you not have to identify – putting aside what is put against you – what an offence can be under the Act? You do not find that just by reading section 15(1), do you?
MR HATCHER: The jurisprudence of the Industrial Court is you do, your Honour.
GUMMOW J: You must not use this word “jurisprudence”. You mean case law.
MR HATCHER: The case law, I am sorry.
GUMMOW J: You will be talking about jurists next, which always makes my flesh creep when it is attributed to any court I have sat on.
KIEFEL J: Perhaps a starting point is section 15(4), section 16(3) and section 49 all talk about an act or omission constituting a contravention. That would seem to be a good starting point.
MR HATCHER: Yes, your Honour.
KIEFEL J: It has to be a specific act. You cannot just talk in abstractions. For the purposes of the offence you have to identify an act or omission and the question is what act or omission could constitute an offence against section 15?
MR HATCHER: The answer to that provided by the Industrial Court, indeed in this case, as with many, is an omission of conducting a risk assessment, and a risk assessment being a document.
KIEFEL J: But then you have to look for a connection with the health, safety and welfare of the employees, do you not?
MR HATCHER: That is our contention, your Honour.
KIEFEL J: Whereas the Industrial Court looks to the causal connection with the risk.
MR HATCHER: Yes.
KIEFEL J: What you are seeking to do, as I understand it, is to take it out of the level of abstraction and into more concrete terms.
MR HATCHER: Exactly, your Honour.
KIEFEL J: Then you are going to tell us what the answer is.
MR HATCHER: The answer is, your Honour, one needs to point to an act or omission of an employer in his capacity as an employer that exposes his employee in his capacity as an employee to some risk, but fails to ensure his health, safety and welfare at work by act or omission relating to the employment – something that an employer, to adopt the expression from the Victorian case, ACR Roofing, a reasonable employer would have done in the circumstances.
KIEFEL J: So a failure to ensure is something which an employer could and should have done.
MR HATCHER: Yes.
KIEFEL J: Subsection (2) then are examples of matters which are pertinent to employment.
MR HATCHER: They are, your Honour.
KIEFEL J: But is it not intended to be an exclusive list.
MR HATCHER: It is not contended to be an exclusive list, but we would contend it is an indicative list.
KIEFEL J: But again, it is still at a level of generality. It does not identify the particular Act or omission in the circumstances of the employer’s employment.
MR HATCHER: No, the prosecutor still needs to point to something that an employer ought to have done, but we are guided by 15(2) into the nature of the things that an employer is expected to do and we would say the nature of things that he is not expected to do. To take a case that will become more apparent when we come to hopefully display the case law of the Industrial Court, 15(2)(d):
as regards any place of work under the employer’s control:
. . .
(ii) to provide or maintain means of access to and egress from it that are safe and without any such risks –
We say that that is indicative of an intention by the legislature to only be calling in those things that an employer might reasonably be expected to do, that is, if he controls the workplace, he should be able to ensure its safety, but if he does not control the workplace, then there are other provisions in the legislation for controllers of workplaces that require them to ensure that there is a safe means of access or egress to any place of work within it.
KIEFEL J: There is quite a focus in the Industrial Court to the notion of removal of risk altogether and the word “risks” appears in a number of places in subsection (2). But again, subsection (2) is speaking generally and where it discusses risks, it is talking about the particular matters which are not to have risks within them, such as whatever “plant and systems of work” in paragraph (a) that are provided or maintained have to have the quality of being safe and not providing a risk, and I think the other risks referred to could be seen in that light.
MR HATCHER: Yes, and when properly used as a condition that is introduced later in the section. So the legislature is giving us some guidance to the breadth of 15(1) and 15(2).
BELL J: In any given case, it would be necessary for the prosecutor to provide particulars of the act or omission. We find that in relation to the section 15(1) offence at page 3 of volume 1.
MR HATCHER: Yes, but little attention, regrettably, to the risk. If the failure is to provide a risk assessment, the risk presumably is a risk that there will be a risk that is undetected, but equally, there may be no risk. So if it is a risk-free environment that is sought, failure to provide a risk assessment does not bear on it.
GUMMOW J: What significance does section 53 have in construing section 15?
MR HATCHER: Section 53 is a general defence to all provisions.
GUMMOW J: Yes. So – including this one.
MR HATCHER: Including this one, your Honour. When one looks at section 50 – perhaps it is as well that I do that now. Can I ask the Court to turn to section 50. This is the offence under which Mr Kirk becomes liable.
GUMMOW J: That is appended to the liability of the corporation.
MR HATCHER: Yes.
Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened . . .
(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.
Now, that means that you have a situation where Mr Kirk is prosected and not the company. Mr Kirk does not have available a section 53 defence.
BELL J: But Mr Kirk could raise the 53 defence in order to establish that the corporation had not contravened the provision, could he not?
MR HATCHER: Not on the jurisprudence in the Court.
HAYNE J: Can we leave aside what the industrial courts decided. Can we look particularly at what the Act provides. Now, you say the Industrial Court has decided things one way or the other. What do you say the Act provides?
MR HATCHER: Well, certainly, in our submission, section 53 is available for any offence under the Act. That is the way it is expressed.
FRENCH CJ: That is a general limit on liability for contraventions under the Act.
MR HATCHER: Yes.
FRENCH CJ: Does it define the scope of the liability that is actually imposed by the Act in that sense?
MR HATCHER: That is what is put against us. That one looks at it as a composite duty in relation to - - -
GUMMOW J: We know that. The question is what is your answer to it?
KIEFEL J: It might not just be a negative – section 53 might not work as a negative for your argument, might it not? Section 53 might be aid to the construction of section 15. You read the two together, section 53 effectively says no, I could not do that which I am charged with having done or not done and if that is right, then it would be workable if section 15 were understood to say it is an offence if you could have done something and you should have done it and you did not do it. So then the two would marry together.
MR HATCHER: They can be married together, your Honour, and they are married together in the statutory expression everywhere other than New South Wales which is the only reason we are hesitant to adopt the suggestion that the stance taken by New South Wales in separating the defence was not deliberate.
KIEFEL J: But if you read them together in that way you probably could not put reasonably practicable – you might be able to put reasonably practicable in section 15 as a prima facie test of the offence and then it is up to the employer to prove that it is not reasonably practicable on balance with the prosecutor maintaining the overall legal onus.
MR HATCHER: Which is exactly the way it is approached in the United Kingdom. The point of distinction with the United Kingdom is, even when one comes to the section 15 component of the composite duty, the Court there has been content to say judge to a reasonable standard of care. Such a condition just does not enter - - -
FRENCH CJ: The question is, does section 53 operate on your submission in a way similar to those provisions of the criminal codes which generally exclude from criminal responsibility certain classes of conduct, accidental, self-defence, all the rest of it, in which case it becomes a matter that the prosecution has to negative. If that is so, then there would really be no distinction between having section 53 separate and having it written into section 15. So the question is, how does it operate differently on your submission?
MR HATCHER: The way it operates differently is that it is expressed that the defendant bears the onus of establishing reasonable practicability, that is, the person must prove that it was not reasonably practicable for the person to comply.
FRENCH CJ: That goes to onus.
MR HATCHER: It goes to onus, yes, your Honour.
FRENCH CJ: Is that inconsistent with it also going to the limit of liability as defined by section 15?
MR HATCHER: Your Honour, we are content to concede it can be construed that way. The way we have approached it is that the legislature has in the face of similar legislation elsewhere sought to carve out the duty. If it does that and separates the duty from the defence, presumably it is for a purpose. If the duty is to be read independently of the defence, it must have an impact on the construction of the duty. If, contrary to our submissions, the defence is to be read into the duty, then it would be capable of compliance if the duty is properly understood and the effect of the defence is properly understood. Can I turn to section 16 of the Act. The Court sees that the obligation imposed under section 16 is that:
Every employer shall 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.
It is expressed differently; it has been found in the authorities in the United Kingdom to be a different duty and that is why there is the close examination in Associated Octel and British Steel as to whether the subcontractors were working in the employer’s undertaking or were engaged in their own undertaking. We do not need to dwell on that for the purposes of this case. I think escaping on section 16 would be of cold comfort to our clients. It is more the overall approach that we need to address in these proceedings.
HEYDON J: Is there a part of your written submissions which, as it were, succinctly and pithily states your construction of section 15(1)? You assemble various arguments and contentions and there have been critical guides, as it were, to the truth, but is there a short form of words which you say those few words in subsection (1) mean?
MR HATCHER: Your Honour, we think that the expression by the Victorian Supreme Court in Australian Char is as well as anyone could express it. It has been adopted in Western Australia and it seems most convenient.
HEYDON J: So such steps as are practicable to provide and maintain a safe working environment?
MR HATCHER: Yes.
HEYDON J: The difference between that and section 53(a) lies really only in the word “reasonably”. “Practicable” and “reasonably practicable” are very close conceptions.
MR HATCHER: Your Honour, it was more the passage later in Australian Char I had in mind – what steps a reasonable employer would in the circumstances have taken. It is an objective test, his Honour says.
KIEFEL J: Could you give me the citation, please?
MR HATCHER: Surely, your Honour.
HEYDON J: It is in [1992] 5 VIR.
KIEFEL J: Thank you. Justice Heydon has given it. Do you say whether or not an offence under section 16 could have arisen in this case – at least in this sense that we have spoken earlier about section 15(1), some issue needed to have arisen with respect to the health, safety and welfare of an employee. Did any risk eventuate? The only risk that eventuated was with respect to Mr Palmer.
MR HATCHER: Yes.
KIEFEL J: So did section 16 apply in any event?
MR HATCHER: We would say not, your Honour. As to its application on the UK authorities, we would concede there is some distinction between the case of Mr de Save and Mr Thorn, who were directly contracted to the farm, and Mr McLeod and the gentlemen that were employed by him in his fencing business.
KIEFEL J: The offence under the Act is not expressed to depend upon the death or accident of a particular person.
MR HATCHER: No.
KIEFEL J: The obligation is cast more broadly upon an employer, with respect. Do you say that a risk of health, safety and welfare has to arise so that the offence can be delineated?
MR HATCHER: Yes.
KIEFEL J: Otherwise you are in the area of a general abstracted duty.
MR HATCHER: Yes. We do not contend that there is not a proactive duty. We concede that there can be risk without accident.
KIEFEL J: There could be an offence. An inspector could come in and charge for an offence if something was unguarded and there was a clear risk of injury.
MR HATCHER: Unguarded machinery is a classic example, your Honour – provided someone is actually being required to operate it. We do not accept the notion to be found in the case law in the Industrial Court that the very existence of an unguarded machine on the property is itself a risk that someone might access it.
KIEFEL J: But if there was such a position, you might expect the inspector to require it to be remedied. There are powers to require matters to be remedied.
MR HATCHER: That is so, your Honour. They can issue a prohibition notice or an improvement notice.
KIEFEL J: Section 47A perhaps. But that is the court, they can bring proceedings for an offence or there can be a remedial order made.
MR HATCHER: Yes.
GUMMOW J: While we are looking at Part 6, what is the significance of section 47(1) of the Occupational Health and Safety Act 1983? These are summary offences. We are not in a world of appeals and results of trials on indictment heard by juries and if you are going to evoke the state of affairs as it existed in 1900 with respect to criminal appeals you have got to focus your attention on review of criminal proceedings which were conducted summarily. None of the written submissions – I may be wrong – seem to do that at the moment, which is rather irritating.
MR HATCHER: We will attempt to remedy that in the course of our submissions, your Honour.
GUMMOW J: That brings us to question the extent to which remedies like certiorari were used in England to call up into the Queen’s Bench or the King’s Bench summary offence cases where the relevant review was less than what would now be called a criminal appeal and the need to distinguish the writ of error that was used in, I think, indictable cases, and then there is the question of the significance of the creation of Crown cases reserves. All of that has got to be looked at if we are going to have any understanding of the Constitutional framework.
MR HATCHER: We will come to deal with that, your Honour.
GUMMOW J: All right. We have three days set aside.
MR HATCHER: Yes. Section 53, we have put the submission that it is a defence to matters generally. In the context of the case law which focuses upon risk assessments, can we observe that one of those specific provisions that we talked about that, in fact, has been dealt with in the New South Wales legislation is a manual handling regulation which makes specific provision for what must be done where a manual handling task is to be formed and that actually provides for a risk assessment being conducted. It has a penalty, that failure to conduct a risk assessment is 100 penalty units as opposed to 5,000 for the general offence. There is a defence of it not being reasonably practicable to comply with that very strict undefined duty. We say that that also must be factored into the way in which 53 works in conjunction with section 15. Can we then turn to the provisions of the Industrial Relations Act. Section 196 deals with appeals in criminal proceedings.
(1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission.
(2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction.
(3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912:
(a) to the Court of Criminal Appeal – is taken to be a reference to a Full Bench of the Commission in Court Session –
In Stewart v The King [1921] HCA 17; (1921) 29 CLR 234 this Court considered whether the Court of Criminal Appeal in New South Wales was the Supreme Court for the purposes of section 73(ii) of the Constitution. It is a very short passage. The Court essentially says the Court of Criminal Appeal is constituted by members of the Supreme Court. Now, that is different. The Criminal Appeal Act assumes that there will be an appeal from that court to this Court, section 24. Section 24 remains in the Criminal Appeal Act. This legislation says that the Industrial Court is taken to be the Court of Criminal Appeal for the purposes of the Criminal Appeal Act.
GUMMOW J: What section is this?
MR HATCHER: Section 24 of the Criminal Appeal Act contemplates an appeal to the High Court, your Honour, that was referred to in Stewart. Section 196 of the Industrial Relations Act provides that a reference to the Court of Criminal Appeal in the Criminal Appeal Act is taken for these purposes to be a reference to the Full Bench of the Commission in Court Session or the Industrial Court, as it is now known; all the purposes, presumably for the purposes of section 24 as well.
GUMMOW J: What does the Criminal Appeal Act say with respect to summary jurisdiction?
MR HATCHER: Section 5AA makes provision for an appeal from the Supreme Court in its summary jurisdiction to the Court of Criminal Appeal.
GUMMOW J: When was that inserted?
MR HATCHER: Well after Stewart, if that is of any assistance, your Honour.
GUMMOW J: Yes, 1979. We need to know what the situation was before 1979, I imagine, before 5AA went in.
MR HATCHER: In relation to something your Honour Justice Gummow raised earlier, I earlier submitted that the argument that contended that there was an alternative right under section 5 dealt with the definition of “indictment” for the purposes of the Criminal Appeal Act, that definition appears in section 2:
Indictment includes any information presented or filed as provided by law for the prosecution of offenders.
So it is not restricted to an indictment as commonly understood. Any information is an indictment for the purposes of this Act.
BELL J: The general right of appeal under section 5(1) in respect of a conviction on indictment does not extend to a conviction on an information summarily disposed of in the local court.
MR HATCHER: That was, as his Honour Justice Basten found, and was accepted by the majority in the Court of Appeal when we maintained that contention, your Honour.
BELL J: Do you put that in issue?
MR HATCHER: No. I just draw attention to the different definition. That was the basis upon which it had been argued that there was an alternative appeal under section 5(1).
BELL J: Yes, I am sorry.
MR HATCHER: We have not further troubled the Court over that.
BELL J: Yes.
GUMMOW J: You are not asserting here that you can rely on section 5AA?
MR HATCHER: No, your Honour. The provisions of Part 5 of the Criminal Appeal Act are unrestricted in the sense that they do not apply to any particular appeal, they just deal with what happens when there is an appeal to the High Court. They assume an appeal to the High Court.
BELL J: How do you say section 196 works?
MR HATCHER: Our submission is that the New South Wales Parliament has said that for the purposes of the criminal jurisdiction of the Industrial Court it is the Court of Criminal Appeal with all that flows with it which in New South Wales is the Supreme Court and it is a very simple answer to what might otherwise be a rather complex question. If that be accepted, then clearly we have a right by special leave to appeal to this Court without more.
Can we note that the privative provision appears in section 179. It is an extensive provision. It is clearly intended to travel as far as the Constitution will allow it to travel. But we should draw attention to subsection (4), which was the provision inserted after this Court considered the suite of unfair contract cases which was intended to make it clear that the Supreme Court had a jurisdiction to consider jurisdictional excess by the Industrial Court after the proceedings had been completed.
HEYDON J: I may be very blind and opaque, but how do you fit in 196 in 179? Section 179(1) says that a decision “is final and may not be appealed against”, but that is a decision of a single judge. What does 179 say about decisions of the Full Bench in Court Session being appealed against?
MR HATCHER: Your Honour, subsection (6):
This section is subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law.
It does not affect your internal right of appeal. It purports to prevent any other right of appeal. It could not prevent a right of appeal to this Court, of course.
GUMMOW J: So the phrase in 179(1) “A decision of the Commission (however constituted)” has a second operation for the Full Bench, does it?
MR HATCHER: Yes, your Honour.
GUMMOW J: That is the idea of it, is it?
MR HATCHER: Yes.
FRENCH CJ: That is constituted under 156, is it not?
MR HATCHER: Yes, your Honour. I am sorry, your Honour; I will give a reference to the section in due course.
FRENCH CJ: Is there something different from the Commission in Court Session and a Full Bench of the Commission?
MR HATCHER: Yes, your Honour. The Commission can sit in its industrial capacity as the Commission or as a Full Bench of the Commission. It then sits in what was known as the Commission in Court Session and is now known as the Industrial Court.
FRENCH CJ: As a result of 151A.
MR HATCHER: Yes, either as a single member or as the Full Bench.
FRENCH CJ: Justice Walton was sitting in that capacity at first instance.
MR HATCHER: Yes.
GUMMOW J: So the phrase “however constituted” in 179(1) is read as catching up to section 152?
MR HATCHER: Yes. That was argued, I should say, in the first Court of Appeal proceedings. We argued in those proceedings that 179 had a quite separate history to the court’s criminal history and that history was similar to similar provisions in industrial legislation generally. It ought not be thought that the legislature intended to restrain the normal channels of review of the court when it sat as a court by operation of provisions as generous as 179 but the Court of Appeal was against us on that.
GUMMOW J: But to pursue the question Justice Heydon was asking you, would one not read section 152 with section 196?
MR HATCHER: Yes, your Honour. It is a court of equivalent status to the Supreme Court and is taken to be the Court of Criminal Appeal in 196.
GUMMOW J: Then how do you read the words “may not be appealed against” in 179(1)?
MR HATCHER: Cannot restrict this Court. If it is the Court of Criminal Appeal and the Court of Criminal Appeal is the Supreme Court, which Stewart tells us it is, then we have a right, subject to leave, to appeal to this Court.
HEYDON J: The distinction between this and the Fish v Solution 6 type of case is that they were not criminal.
MR HATCHER: They were not criminal, your Honour, but the court was sitting as the Industrial Court or then the Commission in Court Session. I think the more important distinction was that no one in Fish and that suite of cases challenged 179, I think much to the chagrin of Justice Kirby, if I recall who kept inviting the challenge.
HEYDON J: The precise challenge to 179 you make, if it were construed against you, relies on Kable, does it?
MR HATCHER: Yes, your Honour.
HEYDON J: What Justice Gummow said in Kable which you quoted in your written submissions.
MR HATCHER: Yes, and Justice Gaudron and Justice McHugh.
HEYDON J: Yes. That deals with abolishing the Supreme Court, but you say the same principle applies if the Supreme Court is sort of eroded away by a little nibbling and creation of holes.
MR HATCHER: You cannot have a little abolition. If you are subject to the criminal law in New South Wales because of an alleged contravention of the Occupational Health and Safety Act, it makes no difference to you whether all the criminal jurisdiction has gone or not. Our reliance on Kable is, of course, somewhat more fundamental than just an attack on the protection that might be afforded by section 179. We say if there is an Australian body of law, then one simply cannot reconcile it with the way the Industrial Court has approached this legislation. It is truly an island apart from the mainstream. It has been described as such by the court itself.
HEYDON J: Yes, but it is construing one particular statute. The other State statutes are different in some sense. It is not the common law.
MR HATCHER: No your Honour, but it must be informed, we would say, by the common law. In Vairy, your Honour Justice Hayne said you cannot determine what is reasonable in terms of warnings to be offered by looking at the one site where there was an incident. You have to say, where does the risk arise? When you properly assess all the circumstances in which the risk arises, you then say, what is reasonable to do in relation to that risk? Now, looking at that in the context of this farm, if an ATV, an all-terrain vehicle, is dangerous because someone might hop on it and use it, surely so is a Toyota Landcruiser, so is a Mitsubishi Canter truck, so is a hammer, so is a chainsaw, so are all the farming implements.
If the reasonable response means that you have got to send every employee or everyone who might come on the farm to do work off to a training course and conduct a risk assessment, then no farm can operate. So it must be informed, in our respectful submission, by the common law. When you talk about causation, Justice Callinan so colourfully described the situation in Commissioner for Main Roads v Jones, what is a warning sign going to do? Each of these employees is an experienced farmhand. They all say no one would drive down there. There is a sign on the machine that says “Do not drive down hills”. Is reading the manual really thought to change the risk? Yet on causation, that is the way our client is convicted. They did not make them read the manual.
GUMMOW J: Is there any analogy in section 15 to notions of non-delegable duties?
MR HATCHER: We say yes, your Honour.
GUMMOW J: As in Kondis’ Case and various other cases?
MR HATCHER: We point in our written submissions to a judgment in this jurisdiction, only in Western Australia. I will just find the passage.
HAYNE J: Before you do that, can we stay with Kondis [1984] HCA 61; 154 CLR 672, particularly at page 681, we find the language of ensuring. In Justice Mason’s judgment at 154 CLR, Kondis begins at 672, particularly at 681, his Honour examines the concept of the employer’s personal duty and at about point 8 of the page in discussing Wilsons & Clyde Coal Co. v English says:
So it is said that the employer in order to discharge his general duty of care for the safety of his employees must ensure that reasonable care and skill is exercised in relevant respects.
and so on. The content of this notion “every employer shall ensure the health, safety and welfare at work”, et cetera, may, it may not, be capable of better understanding against a background provided by the discussion in Kondis of the difficulty that arises – see particularly page 680 – if the employer’s duty is confined to a duty to take reasonable care and skill for safety, for that is satisfied by delegating the task to a suitably competent, independent contractor, hence the development of the idea that the duty to be discharged requires the employer to ensure a result that reasonable care and skill is taken.
Now, against that background, 15 may invite attention to what it is that the employer could or should have done to ensure the result. The answer that may be made in a particular case may not be restricted to section 53 of not reasonably practicable. The answer that may be made may be, I do not know, what you are alleging against me, as an employer, is not something that I could have done to ensure health, safety and welfare. Say for example a heart attack, the person who drops dead of a coronary at work. What could the employer do?
If the employer is requiring the employee to exert himself, herself in an unreasonable fashion, maybe there is an area for debate. But if the employee is sitting at the desk and suddenly drops dead of a coronary, I am not quite sure what the employer could do. But is not the start point the development of the common law in negligence recognising that the duty is then not a duty of care? It is a statutory obligation of a different quality.
MR HATCHER: Well, your Honour, that is the substance of our submissions. We had hoped to make that clear from the way in which we had put our principal written submissions and we say that the vice in the way it is approached by the Industrial Court is that they have no regard to the judgments of this Court in relation to those duties. They are not to be influenced by Vairy, Jones or Thompson. Thompson tells us that we are entitled to expect that a person in the community will avoid a clear and obvious risk. The Industrial Court works on the opposite proposition. We are to expect that they will throw themselves into a clear and obvious risk.
In our written submissions we refer to the judgment of the Supreme Court of Western Australia, Justice Steytler, in an unreported judgment in matter SJA 1039 of 1996, BC9805219. Australian Char is referred to at 16 on page 7 of, at least my copy, the print. Kondis is referred to at 19, and his Honour there says:
That more stringent duty is imposed in circumstances in which there is something in the relationship between the parties that makes it appropriate for it to be so imposed. In the case of the employment relationship is the fact that the employer has the exclusive responsibility for the safety of its workplace . . .
It seems to me that s9, in requiring an employer, so far as is practicable, to provide a safe working environment, imposes a duty, personal to the employer, not only to do what is reasonably practicable for the purposes of attaining that objective in the course of its own activities but to ensure, where that is reasonably practicable, that reasonable care is taken by subcontractors whose assistance is necessary in circumstances in which their failure to take such care might expose employees of the employer to hazards.
However that cannot mean that an employer can never rely upon what is done by a suitably qualified expert engaged by it.
As was pointed out by Brennan CJ in Northern Sandblasting . . . in the context of non-delegable duties at common law, although the duty is personal to the defendant “the term ‘non-delegable’ does not mean that the defendant cannot get another to discharge the duty”. Rather, it means only that the employer cannot escape liability if the duty so delegated has not been properly performed.
There is a reference to Northern Sandblasting. His Honour then extracts further from the case, and then he concludes:
Here, the personal duty imposed upon the employer is, as I have said, that of providing a safe workplace, so far as is practicable. If that, in turn, requires the employer to call upon expertise which it does not itself have then there is no reason why it should not do so and, indeed, every reason why it should. Moreover, in considering whether it did what it could, so far as was practicable, to ensure that those upon whom it relied in turn exercised reasonable care its own lack of expertise (if any) and the expertise of the independent contractor must be taken into account. If the task untaken by the independent contractor is one which demonstrably falls within its area of expertise and outside that of the employer and if the task reasonably appears to the employer, who has such knowledge of the matters specified in s9(1)(b) of the Act as might be expected to be had by employers of its kind, to have been carefully and safely performed by the independent contractor then it would ordinarily be difficult to conclude that the employer had breached the duty put upon it by the Act.
Can we then turn to the provisions in the Constitution to which we draw attention. Covering clause 5 of the Constitution:
This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.
“This Act . . . shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth.” “This Act” makes the High Court at the apex of the judicial system in this country. The Constitution is binding on the Industrial Court. In our submission, it does not have jurisdiction, authority, to decide matters contrary to the case law of the High Court relevantly apposite to the questions it is deciding.
Section 73 of the Constitution conferring the appellate jurisdiction of the High Court:
The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament - - -
GUMMOW J: We can all read it, Mr Hatcher.
MR HATCHER: I am sorry, your Honour?
GUMMOW J: What do you want to get out of it? We have read these provisions many times.
MR HATCHER: Quite, your Honour.
GUMMOW J: What particular textual matters do you draw to your assistance?
MR HATCHER: Subsection (ii), your Honour:
any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council –
It is clearly intended to be exhaustive, setting up the High Court at the apex of Australian judicature, and so much is clear from Kable.
FRENCH CJ: What does that mean? An appeal lies from any court of a State to the High Court or an appeal lies from any court of final resort? The apex term is a metaphor. What is the textual argument relevant to the Full Bench?
MR HATCHER: Your Honour, what it means is there must ultimately be review available in the High Court of the correctness of the law applied anywhere in Australia. Now, that does not mean that there is an appeal from the Magistrates Court in Dubbo. What it means is there must be a system in place whereby the law that is applied by the magistrate in Dubbo is the same law applied by this Court.
FRENCH CJ: Presumably you invoke that in aid of some construction of 73(ii)?
MR HATCHER: Yes, your Honour.
FRENCH CJ: What is the construction?
MR HATCHER: The construction is that what was intended by the framers of the Constitution by 73(ii) is to place the law as it is applied in Australia under the review ultimately of this Court.
FRENCH CJ: Well, intention may aid construction but it does not answer the question, what is the construction? How does it fit? How does the Full Bench fit into 73(ii)?
MR HATCHER: Your Honour, when you come to look at a provision such as 196 of the Industrial Relations Act which says substitute the Industrial Court for the Court of Criminal Appeal, you do so with the benefit of the knowledge that 73(ii) confers a right of appeal to the High Court from that Supreme Court.
BELL J: What 196(3) does is to say that the Criminal Appeal Act, insofar as it refers to the Court of Criminal Appeal, is taken to be a reference to the Full Bench. That is somewhat different to the proposition that you put a moment ago.
MR HATCHER: The position that I put, your Honour, was taken from subsection (2):
The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings –
BELL J: Yes, so that the provisions of the Act apply to the Full Bench and in aid of that, when one reads reference to the Court of Criminal Appeal, one understands that to be in this circumstance a reference to the Full Bench.
MR HATCHER: Yes.
BELL J: But does not your argument go a step further and contend that the Full Bench is accordingly the Court of Criminal Appeal?
MR HATCHER: Is taken to be the Court of Criminal Appeal.
BELL J: Well, it is taken to be the Court of Criminal Appeal for the purpose of the application of the Act, but the Court of Criminal Appeal itself is constituted under section 3 of the Criminal Appeal Act. In any event, that is the argument.
MR HATCHER: It is, your Honour, particularly in view of the way it was approached in Stewart.
FRENCH CJ: So the Supreme Court of any State in 73(ii) includes any court which is taken for any purpose by statute to be the Supreme Court of any State.
MR HATCHER: Yes, any court that is set up as the ultimate Court of Appeal for criminal law in any State.
FRENCH CJ: Well, that is a wider proposition. The first proposition is an accident of the statute. The second proposition is more fundamental, is it not?
MR HATCHER: It is, your Honour.
FRENCH CJ: So any court of final resort in criminal jurisdiction?
MR HATCHER: Yes.
FRENCH CJ: Or any other jurisdiction?
MR HATCHER: We only need go so far as criminal. We say criminal is the fundament of the protections afforded by the Constitution and it is not open to a State to remove that from its Supreme Court and have it retain the character of the Supreme Court envisaged by the founders, a court from which there would be an appeal to this Court. New South Wales could not set up the murder court and say that all cases of murder would be tried before the murder court.
FRENCH CJ: Well, how do you solve that problem? Do you say that legislation setting up a murder court is invalid or do you say that a murder court is the Supreme Court of a State for the purposes of 73(ii)?
MR HATCHER: To be perfectly candid, your Honour, we do not much mind.
FRENCH CJ: But what is your submission?
MR HATCHER: Our submission is the latter rather than the former, that is, if a State sets up a court as the ultimate Court of Appeal within the State in relation to the criminal law or an aspect of the criminal law, for those purposes that court is the Supreme Court and from that court an appeal lies to this Court.
GUMMOW J: Another way of looking at it is to look at section 179 of the Industrial Relations Act which talks about reviewing and quashing which suggests the old writs and then to look at section 69 of the Supreme Court Act which preserves, to put it that way, a charter of justice jurisdiction to superintend inferior courts.
MR HATCHER: Yes, and I think, your Honour, section 48 allocates to the Court of Appeal in the Supreme Court - - -
GUMMOW J: Specified tribunals - - -
MR HATCHER: - - - specified tribunals, including the Industrial Court.
GUMMOW J: - - - which would include a judge purporting to function, et cetera. Paragraphs 6 and 7 perhaps – it does talk about the Industrial Relations Commission or a member of that Commission in paragraph 2. But any way, section 69 at least seems to speak to the Supreme Court and then there would be the question of whether the charter of justice jurisdiction represented by section 69 for mandamus and prohibition and certiorari was something that was part of the concept of the Supreme Court in section 73(ii) of the Constitution. Then you have to say, I think that 179, insofar as it would detract from that, was invalid, but I do not think that is what you are putting, or you have another argument.
MR HATCHER: We do not shy away from that one, your Honour.
GUMMOW J: We need to know then, I would imagine, whether the charter of justice jurisdiction applied in relation to Magistrates Courts and so forth exercising summary jurisdiction in offence matters before 1900, I suppose.
MR HATCHER: I believe the answer is yes, your Honour, but I would prefer to give your Honour a more considered answer.
GUMMOW J: I suspect it is yes, too, but I do not know the chapter and verse.
MR HATCHER: I think one of the authorities on our friend, the Solicitor-General for Victoria’s list actually sets it out in some detail.
GUMMOW J: That would not get you an appeal to the Supreme Court.
MR HATCHER: No. It may give us some other form of relief.
GUMMOW J: That would get you certiorari and then the question would be, what is the relevant record for the certiorari, if that is the remedy you seek, or whether you would be seeking mandamus on the basis that the task had not been properly entered upon because the court did not fully understand the statute it was applying.
MR HATCHER: Yes. The principal remedy that was sought in the Court of Appeal was certiorari.
GUMMOW J: On the basis that the record included the reasons for judgment.
MR HATCHER: Yes. There is an express provision in the Supreme Court Act which incorporates the reasons.
GUMMOW J: Yes. That is section 69(3) and (4).
MR HATCHER: Yes.
MR HATCHER: In the Constitution we also draw attention to provisions of section 76 conferring original jurisdiction on the High Court. We note the power to define jurisdiction in section 77. We rely, of course, on 106 which makes the Constitution of New South Wales subject to the Commonwealth Constitution, and 108:
Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal –
That again makes it clear that the laws of the colony are subject to the Federal Parliament.
GUMMOW J: Well, it has never been authoritatively settled, I think, what is encompassed by the phrase “the Constitution of each State”.
MR HATCHER: I think that is right, your Honour.
CRENNAN J: Do you have also any 109 point in relation to 179 and 73(ii)?
MR HATCHER: Your Honour, our submission is we do not need a 109 point. The Constitution prevails. It does not need to rely on an inconsistency. New South Wales is bound by the Constitution and if 73 affords us a right of appeal, nothing that the State can say or do is going to remove that right because it is a constitutional right. It is not a question of inconsistency between the laws.
We finally draw attention to the full faith and credit provisions in section 118 of the Constitution and we say that that, as well, is consistent with an Australian system of law and an employer in Victoria is entitled, when he travels to South Australia, Western Australia or New South Wales and sees a similar law, to anticipate that the jurisprudence, the case law underpinning that law will be similarly applied. Now, that is not to say that a State cannot introduce quite separate legislation, but where the legislation is, and if it is accepted in the arguments against us that the duty here is conditioned by the defence of reasonable practicability, then it becomes very similar to the statutory duty in every other State and full faith and credit should mean that it will be applied in the same way as in the other States.
GUMMOW J: It may be that the judicial proceedings spoken of in section 118 are judicial proceedings which can be the subject of processes which will ultimately lead to this Court, under section 73, and that is a fair quid pro quo for other States to have to give full faith and credit.
MR HATCHER: Yes. Your Honour, if in the ultimate that is the only way the constitutional intent of section 118 can be achieved, then that must be, in our submission, the way 73(ii) is to be interpreted.
GUMMOW J: Otherwise they would be obliged to give full faith and credit in Victoria to judicial proceedings in some isolated Alsatia established in New South Wales judicial proceedings, which might be odd.
MR HATCHER: Can we then turn to the case law in the Industrial Court in relation to the interpretation of the duty. Can we start with an examination of the trial in these proceedings, and we go to volume 1 where the charges are set out. The first charge appears at page 2 of the book. It is the section 15 charge against the company. The alleged offence is that the company at the farm, which was a workplace operated by the defendant, failed to:
ensure the health, safety and welfare at work of its employees, in particular Graham George Palmer.
The omissions are said to be a failure to:
FRENCH CJ: Now those first three particulars are actually taken from subsection (2). I do not think iv and v are.
MR HATCHER: Yes, your Honour, but one sees in subsection (3):
For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person’s employer.
a section that does not in these circumstances appear to have been given much work to do, and again, as much as we are accused of confusing the accident with the risk, what was charged against us was as a result of the defendant’s failures, its employees, in particular Mr Palmer, were placed at risk of injury. Mr Palmer suffered fatal injuries, so it was the accident that was pleaded.
FRENCH CJ: How is that a particular of the offence?
MR HATCHER: It is inserted by the informant.
FRENCH CJ: Yes, the actual result of the failure is not on the face of section 15. Is it an element of the offence?
MR HATCHER: No, it is not, your Honour. The section 15 charge in relation to Mr Kirk is to be found at page 7 of the book, section 16 against the company at page 13 of the book, and can I inform the Court that the non-employees referred to, Mr Thorn was contracted directly to the farm. He was undoubtedly engaged in the undertaking of the farm, but Mr McLeod had his own business, Fine Line Fencing. He had been contracted to do fencing work on the property with his employee, Mr Haden. I should say Mr Jamieson who appears over the page and the charge – the section 16 charge in relation to Mr Kirk appears at page 18 of the document.
FRENCH CJ: That basically recites in each case the contravention by the company and the additional allegation that he was a person concerned in the management of the company.
MR HATCHER: Yes, your Honour. Would that be a convenient time?
FRENCH CJ: Yes. The Court will adjourn until 2.15 pm.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
FRENCH CJ: Yes, Mr Hatcher.
MR HATCHER: Thank you, your Honour. Now, your Honour Justice Gummow asked a few matters of us before the adjournment. Some of them, I think, will take somewhat longer than we had available during the adjournment to address and it may be that if we finish before this evening we will be seeking the indulgence of supplementing with a note, but there was a matter that your Honour drew to our attention that unfortunately we did not get a note of and nor did any of our learned friends. Your Honour referred to a case, and the note we have was Eurovox or something to that effect.
GUMMOW J: Eurolynx.
HEYDON J: Eurolynx 183 CLR 563 at pages 582 to 583.
MR HATCHER: I am indebted to your Honour. Hopefully we will be able to address that at some stage. Can I then come to the way in which the proceedings before the trial judge went forward. Can I say that the evidence of actually what risk might be constituted by the ATV largely came from the defendant, our client, and it came by way of an expert report from a Mr Jamieson and that report is to be found at volume 2 of the books commencing at page 623. At 642, the Court will see under the heading “Dynamics of Incident” at point 20, “One definition of the “Co-efficient of Friction” and so forth and the conclusion, about two-thirds of the way through that paragraph that:
the slope of the last section of the “short cut” was about 24 degrees.
And a reference to the friction necessary in relation to that. He then goes on to do an analysis of the particular vehicle and so forth. At point 40:
It was also noted in the operating instructions as photographed by WorkCover that the maximum grade on which the ATV should be operated was 25 degrees.
Theoretically, given that the mass of the towed load was less than the published mass of the vehicle itself and the grade down was within the operational limitations of the vehicle, (although it is not known whether this grade limit was in the context of towing), then the operation should have to be satisfactory – although close to the limits of safety.
The situation however, would only occur if the force supplied by the combined retardation systems was satisfactory to keep the vehicle and load down to a controllable speed on such a steep slope. If these systems did not do this, then one of two other outcomes would have taken place.
He talks about the language and the dynamics of the accident. The point of this is that the incident that gave rise to the risk of the ATV overturning was, on the evidence, something of the nature of what Mr Palmer in fact did. Short of that there is no evidence of risk, subject to some things I will take the Court to that his Honour deals with. Can I, without taking the Court to it, note that at page 644 point 35 Mr Jamieson’s evidence was that the average slope of the roads on the property was between 10 and 20 degrees so, so long as they were on a roadway they were well within the operational limits.
Can I take the Court then to page 648, where we find a photograph of the slope down which Mr Palmer went. The Court can see the steep grass going off the track and can see, down the bottom, where the roadway is to be seen again. There is a vehicle actually on the roadway, the Court will see. It does have all the appearance of something out of an early American cowboy and Indian movie. He has charged off and cut the hairpin. The hairpin can be seen at page 632 of the papers where the road is clearly travelling from point 4 to point 5 to point 7 and Mr Palmer took off into the bush at point 6 straight down to point 7. So there is quite a length of road that was inserted there with a bend to cut the grade between points 6 and 7. Mr Palmer has taken off.
If one turns to 635, one can see that the roadway itself was put there for the very purpose of accessing the property and had nowhere near that sort of difficulty and Mr Jamieson’s evidence was that the curve itself was more than sufficient for towing the - - -
HAYNE J: Assume all that to be so, the employer’s duty was to provide a safe system of work. Is that right?
MR HATCHER: Yes, your Honour.
HAYNE J: A safe system was not followed by this employee on this day.
MR HATCHER: Yes.
HAYNE J: What was there that showed the employer provided a safe system of work?
MR HATCHER: What was there was that the employer provided a roadway, the employer provided a vehicle that was safe if operated on the roadway. The vehicle was well maintained, it had instructions on it that indicated it should not be used on the slopes, and Mr Palmer was in charge of the operation ensuring that other people were complying with those guidelines on the machine, and was doing it.
The employer not only provided the ATV, he provided a bulldozer and tray top and a four-wheel drive vehicle, all of which would have been suitable for the task. Short of sitting on Mr Palmer’s shoulder, there was not much more that could practicably be done. Can I then travel to page 776 in volume 2 of the book where his Honour at paragraph 50 of the judgment deals with the evidence of Mr Jamieson in relation to towing the steel behind the ATV, and at paragraph 51:
Mr Jamieson did not testify that the use of the ATV on the slope in question was inherently unsafe, or that the ATV was unsuitable for use on the slope. Rather, Mr Jamieson stated in his report that the “short cut” taken by Mr Palmer featured grades of between 16 degrees and 23 degrees which “approached the operational limits of an ATV (25 degree slopes)”. Mr Jamieson also noted, in his calculation the level of friction required to prevent an object sliding down a slope, that “the potential existed for the friction supply of the sloped ground to be insufficient for an ATV to descend”. Mr Jamieson was not cross-examined in relation to this evidence. I accept Mr Jamieson’s conclusion that:
In summary, while this discussion indicated that each individual element of the operation appeared to be within the “design specification” of the operation of the vehicle (at least in terms of towing capacity and terrain capability), when these elements were combined with the method of mounting of the steel on the top of the carry bar (rather than being towed using the tow ball provided), then such an operation would be hazardous.
So his Honour accepts Mr Jamieson’s evidence that this is at the limits. This is the point at which a risk arises. Can I then travel to his Honour’s discussion of the prosecutor, Inspector Childs’, evidence at 794. Paragraph 101, his Honour says:
Inspector Childs gave evidence that there are “inherent problems in [the ATV’s] design and operation”. It was Inspector Childs’ evidence that, in addition to restricting access to the ATV, ensuring the driver of the ATV is competent and aware of how to operate the ATV, and knows not to speed, that in order for a system of work to be safe, the following further instructions would be required:
I would certainly be ensuring that no person who operated the ATV at the property until such time as the recommendations of the manual, contained within the manual, in regards to undertaking an accredited training course in the safe operation of the vehicle was conducted, that no persons operate the ATV until such time.
Now, Inspector Childs had a forklift certificate. There is no challenge to Mr Jamieson’s evidence. Inspector Childs, the prosecutor, is giving evidence about what he thinks safety required. His Honour continues:
Such steps would be required, according to Inspector Childs, even in relation to use of the ATV on “some of the rough, loose and rocky terrain that was contained within the actual access roads on the property”. Inspector Childs further stated that instructions should have been given to employees and contractors “along the lines that the bike under no circumstances was to be operated off undesignated roadways that had been assessed or identified for suitable use of the bike”.
FRENCH CJ: This was being put as expert evidence, was it?
MR HATCHER: Well, it is not clear, your Honour. It seems to have been accepted as such. I think that would be the only way it could be accepted.
CRENNAN J: Paragraph 103, second sentence contains an acknowledgement of this Inspector Childs.
MR HATCHER: Yes. But his evidence is said to be:
as to a safe system of work for the Farm . . . having regard to the duties imposed upon employers by the Act –
So an inspector can give evidence of what the Act requires. Could I then travel to 804 where his Honour commences at paragraph 123 in what is a somewhat familiar discursus in the case law in this jurisdiction of adopting and repeating every case that has preceded it as establishing the legal principles.
I should make it clear that at no point have we argued that his Honour did anything other than apply the law as it applies in that jurisdiction. It is the law that applies in that jurisdiction that is the source of our complaint rather than the way his Honour approached his task, subject to, of course, corporate responsibility. There is no support for that approach. Then at 812 his Honour moves to the question of risk and at 815, paragraph 131:
It is worth stressing the frequently repeated principle that the duty is one to prevent risks to safety, not to prevent the risk of injury.
I think what that is being directed to is something your Honour Justice Kiefel raised with me earlier. We certainly concede that you do not actually have to have an injury to prove a breach of the duty, but a risk to safety expressed in the broad like that is prone to induce the type of result – a result that we say is erroneous – that one finds in the case law in this jurisdiction. So what we had in the case before his Honour was a situation - - -
FRENCH CJ: Risk is usually associated with an event. I can understand the term “risk of injury”. Is there any way in which the term “risk to safety” is understood in that jurisdiction?
MR HATCHER: It seems to be, your Honour, that one says if the disobedient employee could do something which might expose him to a risk of injury, then there is a risk to safety. So, if there is an ATV there that an employee can hop on and if he uses it poorly and does himself an injury, there is a risk to safety and that constitutes an offence. It is what we have characterised in our principal submissions is a risk of a risk.
FRENCH CJ: It is referred to over the next page, I think, “risk to safety, health and welfare”.
MR HATCHER: Yes.
FRENCH CJ: That must mean the creation of a probability of something happening by way of injury, disease or some other form of harm.
MR HATCHER: The duty is to ensure the safety, health and welfare at work, but the risk, I think, has been introduced in the context of that statutory phrase, but it seems meaningless by itself.
BELL J: The particulars in relation to the section 16 charge brought against the company which appear at page 14 in volume 1 are broad and the evidence that you took us to of the opinion of Inspector Childs might be thought to support particulars framed as broadly as that.
MR HATCHER: Yes. The inspector thought that he had brought a proper prosecution I think is the effect of that, your Honour. He no doubt received the moiety as a result.
BELL J: So when was the offence committed? From the date the vehicle arrived at the property?
MR HATCHER: Your Honour, if this approach is right, there is a continuing offence in respect of every vehicle on the property, every implement on the property, and presumably in every other farm in the State.
FRENCH CJ: The offence alleged is said to have occurred on 28 March 2001, that is in relation to the first count, I think.
MR HATCHER: Yes, well, that seems to be the date that Mr Palmer did something unusual that we are told was a mere distraction from the risk.
BELL J: The particulars of the section 16 offence say nothing about the incident involving Mr Palmer but, nonetheless, the offence is said to have occurred on that day.
MR HATCHER: Yes. Our submission really is if WorkCover attend any workplace in New South Wales – and they generally attend, it must be said, because there is an accident or injury – they will be able to successfully prosecute. So, in our submission, you have a situation where the only evidence of a risk of the ATV overturning is that of Mr Jamieson. He says that only applies in the extreme circumstances that are seen in the evidence and yet without regard to the skill and training of the individuals who are operating the ATV, without apparent regard to their evidence of the circumstances in which they are called upon and do operate the ATV, it is found that there is this risk that somehow they are going to go off and do themselves an injury on the ATV. Regrettably, as we have put, that is not an unusual result in the case law of this tribunal. We have on our list a very recent case, a Full Court consideration of risk in Thiess Pty Ltd and Anor v Inspector Steven Jones (WorkCover Authority of New South Wales). It is unreported. It is [2009] NSWIRComm 77.
HAYNE J: What is the point we are to take out of this subsequent decision for the purposes of this case?
MR HATCHER: That the way in which the court has approached the jurisdiction that it exercises under the Occupational Health and Safety Act is erroneous. It is applying the wrong test.
FRENCH CJ: You mean it is misconstruing section 15.
MR HATCHER: Yes, your Honour. It should be said that this is in the context of the Occupational Health and Safety Act 2000.
FRENCH CJ: But we are looking to whether the Court in this particular case has misconstrued section 15 of the Occupational Health and Safety Act 1983. How does it help us to look at whether it has misconstrued it in another later case?
HAYNE J: On different legislation.
MR HATCHER: The legislation is relevantly identical, your Honour. It helps only in this regard. It lends support to the submission that we put that the Constitution does not envisage an island jurisdiction such as this. It can apply its jurisdiction in such a fashion.
Can I simply observe that in that case, at paragraphs 25 to 27, the court deals with a situation where a contractor was found unfortunately in a pond on the property operated by the defendant. He had died of a heart attack. He had not drowned, but he was found in the pond, and the court in paragraphs 25 to 27 talks about the person being:
able to be near the sediment ponds while at work and should have been prevented from gaining access to –
the sediment ponds. They conclude at 27:
It was a risk to all persons, therefore, working at the appellants’ worksite.
So if you have a pond at the worksite no one is required to work anywhere near it. You have signs up, you have got buoys around it, but if people can access the pond you are in breach of the Act. Now, one only needs to think of Wyong Shire Council, all the waterways that that employer has that people can access, and on this approach they must be in breach. That is the significance of approaching a task as a risk to safety.
FRENCH CJ: I just want to try and link up your last statement in answer to my question about the utility of this. This is related to a complaint about the approach to construction.
MR HATCHER: Yes, your Honour.
FRENCH CJ: That is to do with the appeal in respect of which special leave was granted.
MR HATCHER: Yes.
FRENCH CJ: That is to say, I am looking at the grounds of appeal in 1207:
The Court of Appeal erred in holding that the construction afforded to section 15 –
and so forth. Now, what I do not understand is how the notion of island jurisprudence gets involved with that argument. I can understand it getting involved with a section 73(ii) argument. Which argument are you addressing?
MR HATCHER: It gets involved in the Court of Appeal argument, your Honour, in this way, the question of misconstruing the legislation to the point of jurisdictional error with an inferior court.
FRENCH CJ: Yes, that is a question of whether or not it is jurisdictional error.
MR HATCHER: Yes.
FRENCH CJ: What does that have to do with island jurisprudence? I do not understand how that metaphor engages with this argument.
MR HATCHER: Because, your Honour, if the Court of Appeal approach to jurisdictional error be correct and we do not have a right of appeal otherwise, you end up with this curious approach which sits outside, we would say, the notions of Australian law.
FRENCH CJ: Is that to inform our understanding of jurisdictional error, or something else?
MR HATCHER: It is to inform the understanding of jurisdictional error for the purposes of a court administering the criminal law within Australia that is said to have a protection by a privative provision.
HAYNE J: And is it in aid of construction of the phrase “every employer shall ensure the health”, et cetera?
MR HATCHER: It is in aid of the proposition that this Court is not properly construing it, your Honour.
HAYNE J: In that connection I am sparked by what appears on page 810 of the appeal book in what is an extract from the Industrial Court’s earlier decision, I think, in Arbor Products at paragraph [45] where there is reference to Dunlop Rubber v Buckley [1952] HCA 72; 87 CLR 313 and to McLean v Tedman in aid of the proposition that the duty to provide a risk-free work environment is a duty owed not only to the careful, et cetera, but to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee. Dunlop Rubber was a Factories Act dangerous machinery case.
MR HATCHER: It was, yes, your Honour.
HAYNE J: We find there a citation apparently with approval by Chief Justice Dixon of a statement of Lord Justice Denning that:
The occupier [of a factory] must realize that not everybody is careful; many are hasty, careless or inadvertent, some are unreasonable, or even disobedient.
In effect the employer –
must guard against all conduct which he can reasonably foresee. The limit of his responsibility is only reached when the machinery is safe for all except the incalculable individual against whom no reasonable foresight can provide – the individual who does not merely do what is unlikely, but also what is unforeseeable, or, at least, not to be foreseen by any ordinary man.
Do we not see echoes of that thought firstly in the language of “shall ensure” and also in the language of section 53 of “not reasonably practicable”?
MR HATCHER: We do, your Honour.
HAYNE J: Yes. McLean v Tedman, which is the garbage collection case, again I think refers, does it not, at 312 to “The employer’s obligation” at common law in negligence “to provide a safe system of work” where the possibility that the employee will act inadvertently or without taking reasonable care is one of the risks against which you have to guard. Again, do we not see echoes of this in the statutory language?
MR HATCHER: That is our submission, your Honour.
HAYNE J: What then is the competing construction which you say has been adopted in the decision of Justice Walton which bespeaks jurisdictional error and where do we find in his Honour’s reasons the adoption of the erroneous construction?
MR HATCHER: What we find, your Honour, is an abstraction from the Dunlop Rubber situation which is an employee required to work on the machine and the question of whether, in the duties he was required to perform, he was exposed to some danger, were he inadvertent, and the notion that there is a general species of risk that an employee is exposed to if he can access a dangerous machine. That was the very point I was seeking to make with the access to the sediment pond. We are not talking about an employee who was required to work in the sediment pond who might be exposed to risk, rather, we are talking about someone who can obtain access to the sediment pond.
HAYNE J: But one of the steps in Justice Walton’s reasoning is, at 102, employees should be instructed, in effect, not to get off the road using the ATV. We find at paragraph 156, page 833 at line 38 a conclusion that that instruction was not given though it needs then to be read at once with the next sentence which may or may not sit comfortably with that finding. Now, what is wrong with an understanding of “every employer shall ensure health” which would require the employer to issue instructions to employees, for example, in the use of a quad bike or all terrain vehicle, do not use it except on roadways. Absent that instruction, can it be said that the employer has ensured the health of the employee? That seems to be a part of the reasoning that Justice Walton adopts.
MR HATCHER: Your Honour, in our submission, there are two steps to the answer to that. Firstly, you need to be satisfied on the evidence that there is a risk by using it off road. Now, the evidence was the risk does not arise unless it is used off road in the extreme circumstances. So it is more than just off road driving that leads to the risk. Secondly, the question of whether the instruction is to be given or not given must be conditioned by the audience. So if one is dealing with electrical wires and one has a labourer, one says “Whatever you do, do not put the red wire in contact with the black wire”, but if you are dealing with an electrician, the necessity to say do not cross the red and the black wires is quite different.
So when saying such an instruction is necessary, you need to have regard to the skill of the employees. The employer is entitled to take into account the skill of the employees and their knowledge. We say that is exactly what Mr Palmer did. When we turn to the common law cases on negligence, can I remind the Court of some more recent authority in that area. We have handed up these. The first is a judgment of the Court of Appeal when it was graced by your Honour Justice Heydon in the case Van Der Sluice where, at paragraph 74 on page 27 of the print – this is unreported judgment of the Court of Appeal [2002] NSWCA 204:
A primary difficulty in the plaintiff’s position goes beyond the fact that he ought to have perceived the dangers in working very high on the ladder because of his experience in that type of work and on the very site of his injury, and beyond the fact that it would have been reasonable for the defendant to assume that he, as a skilled and experienced contractor in that line of work, would have perceived and guarded against those dangers. The fact that the higher up a ladder one moves the more care one must take for one’s own safety is one of those simple facts affecting human existence in the physical world which adults in industrialised societies have learned by the time, or indeed well before the time, they have become adults. It is a fact as fundamental, as elementary, as clear and as well known as, for example, the fact that it is dangerous to behave boisterously near pots cooking on stoves, the fact that broken glass needs to be carefully handled when picked up, the fact that rocks along the seashore can be slippery, the fact that shells in the sand of beaches can be sharp, and the fact that when moving about rubbish dumps one must bear in mind the possibility that rubbish may be lying there.
To similar effect the more recent judgment of this Court in Thompson v Woolworths [2005] HCA 19; (2005) 221 CLR 234 where the Court said at page 246, paragraph 36:
The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community’s standards of reasonableness do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all the dangers that await them if they fail to take care for their own safety. This is not a case about warnings. Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care. The whole idea of warnings is that those who receive them will act carefully. There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings.
It is not enough just to say, if that is his Honour Justice Walton’s reasoning, that the employer did not say to each person “You must not drive off the road”. Firstly, you have to be satisfied that driving off the road gives rise to a risk; secondly, you have to be satisfied that a warning is going to obviate that risk; and, thirdly, you have to be satisfied that a warning is going to add to the knowledge of the person who is doing the driving. None of those steps are undertaken. In our respectful submission, were they undertaken our client would have been acquitted. We are talking about a farm.
It is only then, when you have got past that that you talk about the defence of reasonable practicability. Is it reasonably practicable to have every person who works on that farm, contractor or employee, go through and study the operations manual for each implement they may be called upon to use, when they are working at one farm this week and another farm next week.
I do not want to trouble the Court further with other cases in the jurisdiction post the approach in this case other than to note that on our list there is a case of Stimson which was brought by the same prosecutor at about the same time in relation to a farm. That case truly is illustrative of the extent of the jurisdiction. A fellow operating a backhoe excavating a trench near a dam to find out where the dam was leaking was found to be under an obligation to fence his trench to prevent the one person on the property – the owner of the farm – from disobediently going in the trench.
Can I come then to a case that preceded the case the subject of these proceedings and set forth - - -
FRENCH CJ: Just before you do, can I just ask in relation to the common law cases you are taking us to, what does that mean for the way in which we are properly to construe section 15(1)? Does it involve reading in the words, to the extent necessary to avoid foreseeable risk or harm? Is that what you are really saying?
MR HATCHER: It comes back, your Honour, to the formulation that was adopted in Australian Char, what would a reasonable employer have done in the circumstances? It is a notion well known to the common law.
FRENCH CJ: “Every employer shall ensure”, by taking such steps as a reasonable employer would take in the circumstances, for health, safety and welfare at work, et cetera. Is that how you say it should be read?
MR HATCHER: Yes. It was put by Lord Nimmo in a judgment that was referred to by this Court in Slivak v Lurgi as a duty to ensure – it is referred to in our submissions – “the duty is to make the structure” – they were there dealing with one of the particular statutory duties –
100 per cent. safe (judged of course by a reasonable standard of care) if that is reasonably practicable and, if it is not, to make it as safe so far as is reasonably practicable to a lower percentage.
That appears in our principle submissions at paragraph 55. It is not a new concept that the common law informs this duty, as I earlier put. That was the intention of the authors of the reports that recommended the establishment of this legislation.
BELL J: You refer there to the Robens Report –
MR HATCHER: Robens Report in the United Kingdom, and the Williams Report in New South Wales.
BELL J: Now, in the United Kingdom the general duty was expressed in different terms that imported the notion of reasonable practicability into the duty, and that was the approach taken in a number of other jurisdictions in Australia.
MR HATCHER: Yes, your Honour.
BELL J: It was not the approach taken in New South Wales, and one difficulty I have with this part of your argument is that you do not address the circumstance that New South Wales chose to adopt a different approach to that taken in the United Kingdom after the Robens Committee reported.
MR HATCHER: Well, your Honour, what we have put in relation to that, and I was relying on our principal submissions for this, is that if the duty be different for the reasons that your Honour has just identified, then it is nonetheless a duty that needs to be capable of being complied with.
BELL J: I understand that.
MR HATCHER: So if it is to be complied with it cannot be read literally and there is all the more reason, we would say, to read in words such as “reasonable standard of care”.
BELL J: But there may be an area between reading it literally so that the employer is guilty of an offence in a circumstance in which an employee has a heart attack at the workplace, unconnected with his duties, and reading it as though it expresses a duty consistent with a duty in negligence.
MR HATCHER: Well, it is clearly a statutory duty. The legislature did not simply say an employer shall have the duties that he has at common law. But the reports both say that it has been said that we are doing no more than reproducing the common law duty and if that be the case, there is still utility in doing it. So they do not accept that that is all they are doing, but they say there is nonetheless utility because not everyone knows the employers common law duty, but it does not appear to have been intended to stray too far from the common law duty. When one looks at 15(2) and the restrictions that one sees in 15(2), they are certainly consistent with the way in which the common law duty is being approached. So we say that 15(2) has a lot more work to do than the Industrial Court has been minded to give it.
HEYDON J: I hesitate to return to this subject, but your submission really is very hard to fit with section 53. You really read the defence into section 15. You say section 15 subsection (1) says “Every employer shall ensure the health, safety and welfare”, in effect, so far as reasonably practicable, and section 15 says it is a defence against a charge that you did not do that, that it was reasonably practicable. We march up the hill and we march down again like the Grand Old Duke of York.
MR HATCHER: I am sorry, your Honour, I think we may be at odds. When I put that submission I was reading from a speech of Lord Nimmo dealing with the - - -
FRENCH CJ: Lord UpJohn in Nimmo, is it not?
MR HATCHER: I am sorry, Lord UpJohn in Nimmo, where his Honour was dealing with the duty in the United Kingdom. So he says firstly the duty is to make it 100 per cent safe to a reasonable standard of care. So if one looks at the New South Wales statute, you would say the duty is to ensure the health, safety and welfare at work to a reasonable level of care and there would then be the defence of reasonable practicability.
CRENNAN J: Maybe the way they fit together is that if the defence is made out, the position then is that the prosecutor has not proved a failure to ensure safety and so on. I am talking about a marriage of 53 and 15(1).
MR HATCHER: Yes, and that is consistent with the way his Honour the Chief Justice put to me this morning in the way it is approached in some of the criminal statutes. The only difficulty we put in the course of that is that the case law in the Industrial Court is you do not get access to the 53 defence for a section 50 prosecution, liability. So all it takes for a director to be found guilty is for a finding without conviction that the company contravened section 15 or section 16. Now, that means that section 15 or section 16 have to be independently capable of compliance.
One of the special leave cases – and we will give a reference to it – where the question of leave to appeal to this Court that came up previously dealt with that concern that the section 53 defence was not available to a director. I think it was Porteous but we will give a reference to it in due course.
Can I then come to the case of Kennedy-Taylor v WorkCover Authority [2000] NSWIRComm 240; (2000) 102 IR 57. This is the case where the Full Court, the full Bench of the court, determined that 15(2) could not be used to assist in understanding the duties in 15(1). The case concerned some electricians who were working at a manufacturing plant operated by Woolworths. It was Woolworths’ subsidiary, Chisholm Manufacturing’s, plant. The electricians were asked to do some work in the ceiling of that plant. It was called a trafficable ceiling – that is, a ceiling that is designed for people to use as an access way. There was some other work being done in the premises at the time and, for reasons that never became quite clear, the ceiling collapsed. Kennedy-Taylor were prosecuted for allowing their employees to use the ceiling of the Woolworths premises as an access way. At page 60 of the report in paragraph 7 the Court will see that the summonses made the issue starkly clear:
To provide or maintain means of access to and egress from designated construction areas via means of the trafficable suspended ceiling over the Hanging Area, that was safe and without risk to health . . .
To conduct a risk assessment of the structural integrity of the trafficable suspended ceiling above the Hanging Area used by its employees as an access way.
The Court will recall that, under 15(2), the duty to provide a safe means of access and egress to a workplace is restricted to a workplace that the employer controls. The summons does not allege control and, of course, there was not control. These are Woolworths’ premises. At page 64 in paragraph 21, the Court will see that the appellant had submitted, in relation to the process of fact finding for the purposes of establishing a breach, that:
In order to be satisfied that the failure to conduct a risk assessment into the structural integrity of the ceiling led to the requisite risk to safety, the Court would need to be satisfied that a risk assessment would have revealed a deficiency in the structural integrity of the ceiling.
A similar line of submission was made. The answer is dealt with at 22. It was submitted that the appellant’s submissions:
were fundamentally flawed in that they focused upon the accident rather than on the relevant detriment to safety . . . Once her Honour found that the condition of the ceiling presented a risk to the safety of the workers, it was not necessary for her Honour “to determine - - -
GUMMOW J: Where are you reading from, Mr Hatcher?
MR HATCHER: I am sorry, your Honour. This is paragraph 22 commencing at the bottom of page 64 over on to 65.
Once her Honour found that the condition of the ceiling presented a risk to the safety of the workers, it was not necessary for her Honour “to determine what in fact occurred to result in the ceiling falling”.
One wonders how you determine that there is a risk to safety in any ceiling, indeed any building, unless you know that there is a reason that it is going to fall and what that reason might be. Can I then travel to page 68, paragraph 35:
The appellant submitted, in effect, that if an employer did not “control” the place of work it had no duty to provide or maintain means of safe access to and egress from the place of work.
That was on the construction that section 15(2) is meant to give some guidance to what section 15(1) means. Their Honours continue:
This would mean, in the circumstances of this case, that the appellant had no obligation to ensure that the walkway, that is the trafficable ceiling, which its employees used to gain access to a place of work was safe and without risks to health. If this be right it would have the effect of cutting down the “far reaching obligation upon the employer” under s 15(1).
The Act has duties imposed on occupiers of premises to make the premises safe. This Court in Slivak v Lurgi was keen to say you read the Act in its context, you look at the duties on different people. Sometimes the duties may be coexistent but generally if someone has the primary duty, you expect that person will comply with the duty. That is the approach that is adopted in the UK. We have taken the Court in our principal submissions to some of the UK authority in the area. But in the approach to this criminal jurisdiction this Court says, if we read those words that are in the statute into the duty, then you do not get convicted. So it is to be read out. Can I then travel to page 78 of the report at point 9:
The importance of the observation that an offence under s 15(1) is constituted by the failure to ensure that employees are not exposed to risks, rather than the failure to prevent a particular accident, is immediately apparent when considering the submissions advanced by the appellant. The appellant submits that it could not have known of the existence of threats to safety arising from other machines, owing to the fact that it had a reasonable expectation that Ms To -
this is extracting from an earlier case –
would be using only the machine which had been shown to Ms Waters. However, the failure of the appellant identified by the Chief Industrial Magistrate was the failure to give an instruction requiring the client or the appellant’s employee to notify the appellant before transferring its employee to work on another machine. This makes clear that the risk to which the appellant was required to have regard was the risk that its employee would be instructed to work on an unsafe machine, or in a manner which was otherwise unsafe.”
In the present proceedings, the approach urged by the appellant was that the Court must satisfy itself as to what caused the ceiling to collapse and then consider whether a risk assessment of the structural integrity of the ceiling could have revealed the cause of the collapse. If the assessment could not have revealed the cause of the collapse, the appellant argued that the risk was not capable of being known and, consequently, not reasonably foreseeable.
Ms McDonald submitted that this approach mistakenly focused on the accident and not the risk to safety. We agree. As in Drake, we think the appellant’s submission falls into the trap of focusing upon the foreseeability of the particular circumstances of the accident in question. This led to a focus on what may have directly contributed to the accident – waterlogged ceiling panels, turnbuckles failing under the extra weight and the ceiling not being properly affixed to the northern wall – and whether these factors contributing to the accident were foreseeable.
FRENCH CJ: Mr Hatcher, was this relied upon by either the trial judge or - - -
MR HATCHER: Yes, your Honour, it is referred to in almost every authority since.
FRENCH CJ: Yes, I am just asking about the trial judge in this case. I am just looking for the reference to it.
MR HATCHER: We will find that, your Honour. I am sure it is in the many references.
FRENCH CJ: We do not need to get heavily into the facts of this other case. It is sufficient to take us to the proposition which you say was, in effect, invoked by the trial judge, bearing in mind again we are concerned with error of construction in the decision under challenge.
MR HATCHER: Yes, your Honour, but it is the construction of the statute that fails to have regard to 15(2) and your Honour will recall that that –
GUMMOW J: What is this trap that is being spoken of?
MR HATCHER: I am sorry, your Honour?
GUMMOW J: What is the trap that is being spoken of there in paragraph 56 in terms of the statutory construction?
MR HATCHER: I am sorry, your Honour, paragraph 56 of?
GUMMOW J: Of Kennedy-Taylor.
MR HATCHER: Yes.
HEYDON J: It “falls into the trap of focusing upon the foreseeability”.
MR HATCHER: That, your Honour, is that - - -
GUMMOW J: How can that be matched to the statutory language?
MR HATCHER: Because the Court would say that the duty is to ensure the safety of the employee, the health, safety and welfare of the employee. It is not a duty to prevent an accident and so it is wrong to focus upon an accident. The employer is under a positive duty to ensure that nothing can happen, that the employee is at all times safe. So if your employee, your employed solicitor is going into the High Court, you need to ensure that the High Court is a structurally sound building, that it is not about to collapse, it does not have water leaking in the ceiling and the fact that there is no accident does not mean there is no breach. It is sufficient that you have not ensured that the building is not structurally sound or that the building is structurally sound before you have directed your employee to go there.
If it please the Court, we then submit that the way in which the Industrial Court interprets and applies the provisions of the Act, the piece of legislation which creates statutory duties enforceable by criminal sanctions makes that legislation impossible of sensible compliance. Such an approach, we submit, places that legislation, at least as it is applied by the Industrial Court, in conflict with the rule of law and we submit that the rule of law is a body of rules forming a basic assumption underpinning the Australian Constitution. In our written submissions, we have referred to Australian Communist Party. That seems to be the leading authority and that is being referred to extensively, at least extrajudicially since that time.
Moreover, in our submission, the way in which the legislation is applied cannot be reconciled with the Australian common law. For reasons developed in our principle submissions, the judgments of this Court in cases such as Thompson and Vairy and Commissioner for Main Roads ought to result in some amelioration of the way in which the Industrial Court approaches its task. If this Court says you are entitled to expect that an employee will avoid an obvious risk, it does not mean you are entitled to expect an employee will avoid an obvious risk for the purposes of common law negligence. It means you are entitled to expect that an employee will avoid an obvious risk and when it comes to apply the criminal law of New South Wales, which is part of the corpus of the Australian law, you should be entitled to rely on that assumption.
We say that the approach of this Court in relation to similar legislation is a matter which ought to have formed part of the jurisprudence part of the case law of the Industrial Court, and we have referred in particular to the judgment of this Court in Sheen v Fields (1983) 51 ALR 345. It concerns safety legislation, the Factories and Shops Act (Qld). The leading judgment was given by the then Chief Justice, Sir Harry Gibbs. At 348 his Honour says:
In the Full Court it was held that “likelihood” in cl 21 –
He is there dealing with clause 21 of a regulation that required personal protection – fire protectors to be provided –
means “something less than probability but more than a remote possibility”.
He goes on to consider that question. Towards the bottom of the page:
The critical question is whether the likelihood is to be judged, as Demack J said in an unreported judgment in Moscrop v Vigilante, which he followed in the present case, “not by considering the nature of any one task but by considering the overall activities in the factory” or whether, as the Full Court thought, regard must be had to the particular task being performed by the employee in question.
The evidence shows that there were two grinding wheels in the workshop, and that it was necessary for employees using those wheels to use goggles (by which no doubt was meant safety spectacles). There is no evidence, however, that the grinding wheels or any other operation in the factory, placed the appellant in a position of hazard while he was working at the time when he sustained his injury.
In my opinion, the question whether there is a likelihood of injury is to be asked in relation to the particular work done by the employee whose safety is to be protected. Of course, the injury may result from the work of others, as well as from the employee’s own activities, and in that sense Demack J was right in saying that the overall activities in the factory are to be considered. However, if he meant that because activities in one part of the factory created a likelihood of hazard to the eyes of employees there, an employee in another part of the factory should have worn safety spectacles, although that employee was not exposed to the hazard, I cannot agree with him. The Rules and Standards are intended to ensure the safety of the employees concerned, and not to insist on the observance of unnecessary precautions. The question is whether, in all the circumstances, there was a likelihood of injury from any cause to the eyes of the particular employee.
It is clear that a workman using a hammer and punch to drive a bearing onto a shaft should wear safety spectacles, because of the danger that chips of metal may fly off. On the other hand, there is no evidence, or suggestion, that an employee who put a bearing onto a shaft by one of the two other methods suggested would be exposed to any risk from flying metal. If the appellant had performed his task in accordance with the method which his employer expected him to adopt, he would not have been at risk. The likelihood of injury must be judged in the light of the circumstances which are known, or which ought to have been known, to the employer on whom the duty is cast. It would be unreasonable to construe the rule as casting an obligation on an employer to protect his employee from the consequences of his own independent decision to adopt a dangerous method of working which is different from the method he was instructed top adopt unless the employer could reasonably be expected to foresee that the employee might act in this way.
There you have an express and absolute statutory requirement interpreted by this Court in accordance with notions of the common law and interpreted in a way that it is capable of being complied with. That, in our respectful submission, is the way in which the duties in this case ought to have been approached.
The problems that we face in the way in which the legislation is applied in New South Wales were, in fact, anticipated to some extent by this Court in considering the Victorian legislation in the case of Chugg v Pacific Dunlop [1990] HCA 41; (1990) 170 CLR 249. That is the case that decided that in Australia, as distinct from the United Kingdom, in the reasonable practicability test the prosecutor bore the onus. Of course, it has not applied in New South Wales because of the specific provisions of section 53. At 263, from the third line:
And, as the definition of “practicable” shows, the question of practicability is one which must be answered by a consideration of the means by which a risk can be removed or mitigated. Different considerations may apply to other legislative provisions as, for example, a provision which imposes a specific requirement or lays down a specified procedure to be followed in particular circumstances, so far as that requirement or procedure is practicable. In such a case the requirement or procedure is clear. If the requirement or procedure is not complied with, the only issue is whether it is practicable. But where a general obligation is imposed, the means which might practicably be adopted are confined only by the nature of the risk or hazard. That is because, as was pointed out in Gibson . . . per Viscount Dilhorne, if it were established that one or even several methods were impracticable, it would not follow that the workplace was as safe as practicable. If the onus is on an informant, the issue is confined by the means which the informant claims were practicable in the circumstances. If the onus is on a defendant, the issue, if confined at all, is confined only by the “means of making the place safer which the ingenuity of . . . counsel can suggest” in the course of cross-examination . . . It is impossible to read into s. 21 of the Act an intention to place the onus of proof of the issue of practicability on a defendant when that onus would entail the additional burden of anticipating and negating the practicability of every possible means of avoiding or mitigating a risk or accident that might be raised in the course of cross-examination.
That was the way this Court anticipated the difficulty might arise in legislation that was being applied in relation to an identified risk or accident. In New South Wales we have risk to safety and the employer bears the onus of establishing he has done everything practicable to avoid a risk to safety. We submit that this Court said it would be a hard ask if you were dealing with an actual identifiable risk or accident. It is an impossible task once you abstract it into a risk to safety.
In our submission, the way in which the Industrial Court applies this jurisdiction by posing hypothetical situations in which a disobedient employee might have access to a body of water or dangerous machinery and thereby becomes exposed to risk, makes it impossible of compliance. It is impossible to remove risk from the lives of the negligent. The most one can hope to do is not to place them at risk in what is asked of them in their employment. It is a radical step to contend, as our opponents do, that this approach can be adopted without any judicial scrutiny in this Court.
In our submission, the situation is amendable to review in this Court and we have dealt in some detail in our principle submissions with why that is so. We submit that the Industrial Court is, when exercising this particular jurisdiction, the Supreme Court for the purposes of section 73(ii) of the Constitution. Can we remind the Court of what was said by this Court in Parkin.
GUMMOW J: Before you get to Parkin, it is one thing to put construction of section 15 negatively, as it were, by criticising what has been said about it in the court below, but what do you say is the scope of this phrase “shall ensure” beyond what is spelled out in (a) to (f) in subsection (2).
MR HATCHER: We say the duty is to ensure to a reasonable standard of care that an employee is not exposed to an identifiable risk in the course of his employment.
GUMMOW J: What does the word “ensure” mean?
MR HATCHER: Procure, obtain, take steps necessary to achieve, refrain from acts that might place the employee at risk.
GUMMOW J: Is there any treatment in the case law in the Industrial Court of the phrase “shall ensure”?
MR HATCHER: Substantial treatment, your Honour, in it is expressed as an absolute duty.
GUMMOW J: I know that, but the phrase “shall ensure”, what it means?
MR HATCHER: What it means is you must ensure - - -
GUMMOW J: It is assumed to have a meaning, I do not know what the assumption is at the moment.
MR HATCHER: You shall ensure that there is no risk to the safety of an employee. There is case after case after case reciting it.
GUMMOW J: I can understand what it meant in Kondis.
FRENCH CJ: On the literal view, which is the Justice Basten absurdity, “ensure” means zero risk.
MR HATCHER: Yes.
FRENCH CJ: Or “zero probability”. Let us talk in terms of probability, zero probability of some harm which can be expressed in terms of some detriment to health, safety or welfare. I have a difficulty with the linkage of the concept of a level of probability with reasonable care. The reasonableness might be achieved by simply saying the ensurer is to be read reasonably, in other words, that it takes steps to prevent any non-trivial probability of harm within those categories.
MR HATCHER: Yes. The difficulty, your Honour, in - - -
FRENCH CJ: Once you put in “take reasonable steps” then there is another dimension.
MR HATCHER: The problem with non-trivial – and it has been used in the UK courts as a discrimen – is some of the risks that you come across that an employer may not sensibly be able to take any precautions in regard to would hardly be said to be non-trivial, and the heart attack is the classic example of that. It is not a trivial risk that an employee might suffer a heart attack at work, but it is clearly not something that he is exposed to, subject to clearly peculiar or unusual circumstances, by his employer in the course of his employment. So you come back to the steps that a reasonable employer might take to ensure that risk.
FRENCH CJ: Well, the answer to that is they have to be steps that the employer is able to take. In other words, the employer can only address those matters which are within the employer’s control or which the employer is capable of affecting.
MR HATCHER: Yes, which was the very point in Kennedy-Taylor that was rejected.
KIEFEL J: The primary judge, Justice Walton, did refer to the construction of the duty imposed by the words “to ensure”. At appeal book 805, his Honour quotes from the decision in WorkCover Authority v Crown in Right of the State of New South Wales and at about point 25:
(1) The duty . . . is absolute.
(2) Such duty to ensure is to be construed as meaning to guarantee, secure or make certain.
MR HATCHER: And:
(3) The duty so created is directed at obviating “risks” to safety at the workplace - - -
HAYNE J: Is there anywhere, particularly in sections 15 and associated sections, where the word “risk” or “risks” is used other than in the composite phrase “risks to health”?
MR HATCHER: Other than section 15 and 16, your Honour?
HAYNE J: Within 15 and associated provisions is the word “risk” or is the word “risks” used otherwise than in the composite phrase “risks to health”? I think the answer is no, but I would be glad if, no doubt overnight, the parties would give some attention to it because I suspect but do not know that the injection of the concept of risk is a gloss on the section having no route in the text which may illuminate but it may also obscure.
MR HATCHER: We will certainly address that overnight, your Honour.
GUMMOW J: Particularly when you link it with this phrase to guarantee.
HAYNE J: Just so. Because the particular obligations in 15(2) which are expressed without prejudice to the generality of (1), so we are not looking at an exhaustive category of matters in (2), I would have thought, put shortly, safe plant and systems of work, safe arrangements for use and handling, et cetera, of plant and substances, necessary information and training, safe place of work with safe ingress/egress, safe working environment, adequate information with respect to plant and substances. Now, the translation of those ideas into a composite expression shall ensure safe plant, that is to say, the employer will achieve the result that the plant and systems of work are safe is one thing.
When you lay on top of that this notion of risk, you have injected a wholly new integer into the framework. Risk, risk of what, risk of injury, risk to employees, what sort of risk, et cetera. You have recast the provision. If you see 15 as building on old Factories Act legislation, building on non-delegable duties, I do not know that risk is a useful tool. Maybe. Solicitor for New South Wales will undoubtedly tell us how useful it is and what use we should make of it. I look forward with interest.
KIEFEL J: At least at a high level of abstractions the section may work even with a higher standard of duty than a reasonable standard on an employer if there is an identified risk. If it contemplates offences and prosecutions are brought with respect to something that has occurred where the risk can be identified and then addressed and the steps not taken brought out, or where there is a risk which a prosecutor can identify as something which has to be addressed and should have been and the employer is then guilty of either an offence or subject to remedial order.
MR HATCHER: Well, quite, your Honour. If we know what we are dealing with if we are seriously talking about the risk of this ATV overturning and we look at Mr Jamieson’s report, if we acquire an employee to operate an ATV down a slope of 26 degrees, clearly we are exposing him to risk.
KIEFEL J: But that might, nevertheless, say that the employer is to be subjected to a higher degree of duty and that is really borne out by the cases involving non-delegable duties that Justice Hayne referred you to this morning, like Kondis, and that would then allow perhaps the section 53 defence to operate and the reasonable practicality of it is considered at that point.
MR HATCHER: It is difficult in dealing with the jurisprudence outside New South Wales when there has been no need, really, to focus terribly much on what the duty is because the reasonable practicability is part of the overall onus of the prosecutor. So the question of what you need to do is always judged against what you could reasonably practicably have done.
KIEFEL J: But the scheme of this Act appears to be to shift that to the employer and thus there is perhaps a lesser standard for the prosecution to have to achieve at the outset before the employer has to then explain why steps were not taken.
MR HATCHER: That is why we draw attention to the UK where the onus is on the employer to make out the reasonably practicable defence and yet the Court has said it is to a reasonable – it needs to be 100 per cent safe judged by a reasonable standard of care.
FRENCH CJ: How is something 100 per cent safe judged by a reasonable standard of care? Surely it is 100 per cent safe or it is not.
MR HATCHER: That was the question in Slivak, your Honour. If the duty of the designer was to make it 100 per cent safe it was not 100 per cent safe because it fell down. If his duty was to make it 100 per cent safe by a reasonable standard of care he was entitled to assume that it would be used in the way it was designed to be used; that the design tolerances that he had placed on it would be complied with. He was entitled to assume that people would do that which they had undertaken to do; that they would comply with warnings. Those are the sorts of things that are dealt with in the common law cases I have gone to. I think that is really what the position was directed to.
If I could then travel to Parkin [1905] HCA 64; (1905) 2 CLR 315. The question was whether a judge of the Supreme Court of Victoria sitting in chambers was a judgment of the Supreme Court, and the Court found that it was. The passage we rely on is reasonably well worn in this area of this Court’s jurisprudence. At page 330 of the report his Honour, the then Chief Justice, Sir Samuel Griffith says at about point 3:
Applying, then, the ordinary canons of construction, we cannot entertain any doubt that the terms “Supreme Court” is used in the Constitution to designate the Courts which at the time of the establishment of the Commonwealth were known by that name. It may be that the term would also include Courts established under another name in substitution for them, but with similar functions.
In our respectful submission that is exactly what we have here. The Industrial Court at Full Bench is sitting in substitution for the Court of Criminal Appeal for the purposes of the Occupational Health and Safety Act. It is doing exactly what the Court of Criminal Appeal would do and it is comprehended within the expression “the Supreme Court” for the purposes of section 73(ii) of the Constitution.
GUMMOW J: The actual debate in Parkin appears in Mr MacArthur’s submissions at page 318, and that certainly was true in New South Wales, but some orders were orders of the Court and some were orders of the judge. That is the way that the rules used to distinguish.
MR HATCHER: Yes, and I think the argument continued at the foot of the page, “If it is in substance a judgment of the Supreme Court - - -
GUMMOW J: Nevertheless, they were orders for the purpose of section 73 in the Supreme Court.
MR HATCHER: Remembering that this jurisdiction was exercised by the Supreme Court until 1987. There could be no doubt in 1986, were our client convicted, he had an appeal by leave to this Court. I earlier mentioned the case of Stewart v The King and the Court will recall that in that case this Court found that the Court of Criminal Appeal was the Supreme Court. The Court concludes that the legislature clearly thought there was an appeal to this Court from the Court of Criminal Appeal by reliance on section 24 and section 24 still appears there. If the reasoning was good in 1925, we still like it in 2009.
We have dealt with the issues concerning whether the Industrial Court was exercising federal jurisdiction in considering the application for leave to appeal in our written submissions. It is dealt with in our principal submissions at paragraphs 56 and 57 and in our reply submissions at paragraphs 23 to 25 and we are content to rest on those submissions. As to the issue to which we expressed our appreciation to South Australia, that is the question of whether section 73(ii) guarantees a right of appeal from a Court which might exercise federal jurisdiction rather than simply a court in the exercise of federal jurisdiction, can we submit this. One would readily acknowledge the force of the historical and textual analysis that the position contained in the intervener’s submissions. There is a lot to be said for the proposition that 73(ii) in addressing a court exercising federal jurisdiction means a court in the actual exercise of federal jurisdiction.
Were it not for Kable, the Court might readily accept that proposition, but much flows from Kable, in our respectful submission, and we here refer to, of course, the judgment of this Court in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51. Kable was certainly an exceptional case, but there are principles that emerge from the judgments in that case that are wide-ranging and must, in our respectful submission, be given effect and when given effect, ought ensure that our client has a right to access this Court to seek the relief that they do.
FRENCH CJ: Kable emerges from a consideration of Chapter III of the Constitution. How does it assist its construction?
MR HATCHER: Because, your Honour, if the implied rights that are to be found in the Constitution expressed in Kable are to be given effect, one needs to approach the words of the Constitution in a way which can give them effect. That is, if reposing in a court which exercises federal jurisdiction, putting it in a position where it is insulated in respect to some of its jurisdiction from review in the Australian hierarchy of courts, creates a situation where it is no longer a suitable receptacle for federal jurisdiction, it may say that the legislation that does that can be struck down, but it may equally say – and, in our respectful submission, does say – that the grant of a right of appeal from the court exercising federal jurisdiction is designed to ensure that there is ultimate review in this Court.
FRENCH CJ: Why is the insulation of the non-federal jurisdiction of such a court from appellate review in this Court – why does it render such a court an unfit repository for federal jurisdiction? What is the principle by which you get to that conclusion?
MR HATCHER: Very simply, your Honour, as her Honour Justice Gaudron said, there are not two standards of justice. If we be right that the Industrial Court is not applying the Australian law as enunciated by this Court, if it is acting in an exclusively State jurisdiction, it proceeds to do that and we get the result such as our clients are faced. But if the defendant has available a defence that arises under some federal law – and one need not trouble too long about which one, even if one were to rely on the rule of law, as was done in the leave application, a matter arising under the Constitution – then there can be no doubt but the Court has to apply Australian law. So you have a court that on that theory comes to one judgment where there is no federal issue involved and a different judgment if there is a federal issue involved.
GUMMOW J: If Mr Kirk was an absentee and lived in Victoria, this prosecution under the State Act would attract federal jurisdiction under 75(iv).
MR HATCHER: Exactly, your Honour.
GUMMOW J: But because he is a New South Wales resident there is no federal jurisdiction and even though it is the same Act and it will be construed against him in the New South Wales insulated system, whereas if he were a Victorian who happened to own this property in New South Wales, et cetera, that would not be so.
MR HATCHER: So you have that situation where the same case can result in two different circumstances depending upon whether federal jurisdiction is actually invoked or not. You have the tension that it creates that your Honour Justice Gummow was dealing with earlier in terms of the full faith and credit provisions of section 118 where full faith and credit needs to be given to the New South Wales judgment even though it is not applying Australian law. You say, well, what was the Constitutional remedy? How does the Constitution overcome such a difficulty?
If one reads 73(ii) as a court which exercises federal jurisdiction rather than a court which is exercising federal jurisdiction, the remedy is clear. The High Court sits at the apex. The High Court reviews. Not a question that has had to be considered previously because most courts in Australia are subject to appellate review to the Supreme Court and beyond the Supreme Court to the High Court. This is an oddity that a criminal jurisdiction could be carved out of the Supreme Court, reposed in an Industrial Court with no review to the Supreme Court and on to the High Court.
Our primary submission is you cannot successfully do that. The Industrial Court is the Supreme Court for the purposes of criminal prosecutions under the Occupational Health and Safety Act. If we be wrong as to that, in our submissions, the Industrial Court which has found, and Vetter is the case where this Court reposed federal jurisdiction in the Industrial Court – if it is to be a court in which federal jurisdiction is vested, then it is a court from which an appeal lies to this Court.
HAYNE J: If that argument is good, it is an argument that is engaged in respect of every District and Magistrates Court in Australia, is it not?
MR HATCHER: Every District or Magistrates Court that exercises federal jurisdiction, which they will, your Honour, yes. But the practical consequence of it is not quite so dramatic as all that because the Magistrates Court, the District Court is within the hierarchy of courts appeals flow.
HAYNE J: But with the Magistrates Courts or local courts, sometimes at least, the review that may be made of their decisions is limited.
MR HATCHER: Yes.
HAYNE J: This would open a general appellate review, would it?
MR HATCHER: By special leave.
HAYNE J: I understand that. I just want to understand the breadth of the submission.
MR HATCHER: That is so, your Honour. Of course, leave by leave and leave can be subject to conditions and the basis upon which we say that the interpretation is there as to preserve a unitary Australian law with the High Court at the apex. No doubt the Court would want to be satisfied that that was at issue in the proceedings before leave would be granted.
HAYNE J: But supervision by the Supreme Courts of courts and other bodies generally lumped together as inferior bodies which is exercised through the medium of prerogative relief and associated relief is directed to ensuring that those bodies at least, one, stick to their legislative remit and, two, accord natural justice. You would, on this construction, broaden the degree of supervision beyond those matters. Now, I am not saying that is right, wrong or indifferent, but that is the consequence.
MR HATCHER: That is the consequence, but only to give effect to the Constitution. Can I then travel to her Honour Justice Gaudron’s judgment at 102 of the report, at point 5:
Neither the recognition in Ch III that State courts are the creatures of the States, nor its consequence - - -
GUMMOW J: Just going back to the submission you were discussing with us.
MR HATCHER: Yes, your Honour.
GUMMOW J: Your argument assumes that the Parliament of the Commonwealth retains a generally expressed law under 77(iii), such as section 39 of the Judiciary Act, is it not? That is the only avenue by which a Magistrates Court gets into the federal arena, and the only reason by which Mr Kirk, if he were a resident of Victoria, would get into the federal arena. It is by virtue of section 39, is it not, that the Industrial Court of New South Wales would be exercising the federal jurisdiction in an action between a resident of Victoria and the State of New South Wales. Is that right?
MR HATCHER: Yes, your Honour, section 39 being the vehicle by which the State Court exercises federal jurisdiction, yes.
GUMMOW J: It is up to the Federal Parliament to bring about this result, so it does not necessarily come from the Constitution itself.
MR HATCHER: It is up to the Federal Parliament whether the federal jurisdiction will be exercised by a State court, that is so, but in this case we have - - -
GUMMOW J: At which level of State courts, too.
MR HATCHER: Yes, but in this case, of course, we have a court that is vested with federal jurisdiction, and that is the proposition that we advance. That could be limited by the Federal Parliament, that is true.
FRENCH CJ: But it might be seen to lose a little force when the question whether a court exercises federal jurisdiction in the sense that you advance depends upon a statutory accident, in a sense. If a jurisdiction were withdrawn, then it is in the island, subject to the availability of appeal within the local hierarchy, and through the Supreme Court and so forth.
MR HATCHER: Yes, subject to that and also subject to the question of whether it is within jurisdiction for any Australian court to determine matters contrary to the law as announced by this Court, which is of course another limb that we rely on in our argument. At 102, point 5:
Neither the recognition in Ch III that State courts are the creatures of the States nor its consequence that, in the respects indicated, the Commonwealth must take State courts as it finds them detracts from what is, to my mind, one of the clearest features of our Constitution, namely, that it provides for an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth. Moreover, neither that recognition nor that consequence directs the conclusion that State Parliaments may enact whatever laws they choose with respect to State courts.
Her Honour then goes on to deal with the autochhonous expedient, and at 103 point 2:
Two other matters of significance emerge from a consideration of the provisions of Ch III. The first is that State courts are neither less worthy recipients of federal jurisdiction than federal courts nor “substitute tribunals”, as they have sometimes been called. To put the matter plainly, there is nothing anywhere in the Constitution to suggest that it permits of different grades or qualities of justice, depending on whether judicial power is exercised by State courts or federal courts created by the Parliament.
The second and, perhaps, the more significant matter which emerges -
and this was pointed out in Leeth –
State courts, when exercising federal jurisdiction “are part of the Australian judicial system created by Ch III of the Constitution and, in that sense and on that account, they have a role and existence which transcends their status as courts of the States”. Once the notion that the Constitution permits of different grades or qualities of justice is rejected, the consideration that State courts have a role and existence transcending their status as State courts directs the conclusion that Ch III requires that the Parliaments of the States not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth.
That really was the submission I was putting earlier to your Honour the Chief Justice. It is simply incompatible with the Constitution to accept a notion that this Court can deliver a judgment in a case involving federal jurisdiction that would be different from a case that does not involve federal jurisdiction. If the invocation federal jurisdiction requires it to decide a case in a particular way, then that is the way the case should always be decided. Whether one then implies or reads the Constitution in such a way that that can be protected by the appellate provisions of section 73(ii) or whether one says that that is an overall jurisdictional restraint on the inferior Tribunal, in our respectful submission, it is a result that the Constitution dictates.
HAYNE J: Is the spectre of island jurisprudence a necessary premise for this part of your argument?
MR HATCHER: It is, your Honour. We need to satisfy the Court that this Court is applying the law in a way that is not consistent with the way this Court has applied Australian law.
HAYNE J: What I had in mind was, is it a necessary premise for this part of your argument that for whatever reason or combination of reasons the Supreme Court of New South Wales cannot exercise any relevant control over jurisdictional error or want of procedural fairness or other default by this body?
MR HATCHER: Your Honour, it is not a necessary plank of our argument but in a practical sense, if the Supreme Court could exercise that jurisdiction, then you would never get leave to this Court, you would be in the Supreme Court arguing the point and then appealing from that court to this Court.
HAYNE J: So you have structured your argument in the fashion you are perfectly entitled to but much turns, I suspect, on the point at which you enter the debate. If you enter the debate at, well, what control, if any, has the Supreme Court over this body, answer that, then do you get to this rather larger question that you would agitate if the answer to the question I indicated were affirmative?
MR HATCHER: That is, with respect, your Honour, entirely correct, but we have two applications for special leave to appeal, and if we are to succeed in those we need to satisfy the Court that such an appeal exists.
GUMMOW J: If you do not?
MR HATCHER: Then we really need to persuade the Court that there is jurisdictional error that ought to have been corrected by the Court of Appeal in the matter in which we do have leave. But we say one argument informs the other. We say if we satisfy the Court that there is the injustice that we complain of in the proceedings below, then it informs what constitutes jurisdictional error by the Industrial Court. It is a reason why the Industrial Court might be treated as your Honour Justice Heydon earlier observed, in like fashion to a refugee Tribunal than in like fashion to a court in the hierarchy of courts. Can I then travel to Justice McHugh’s judgment at page 111 of the report, where towards the top of the page his Honour says:
If a State could abolish its court system, the powers conferred by s 77(ii) and (iii) would be rendered useless and the constitutional plan of a system of State courts invested with federal jurisdiction, as envisaged by Ch III, would be defeated. This is because only courts can be invested with federal jurisdiction pursuant to the provisions of s 77(iii). It is hardly to be supposed that the Constitution intended that a State could defeat the exercise of the grants of power conferred on the Parliament of the Commonwealth by s 77 by the simple expedient of abolishing its courts and setting up a system of tribunals that were not courts.
That really is the genesis of the argument that we put earlier today. If the New South Wales Parliament were to establish a bikies’ court or a murder court and remove the jurisdiction of the Supreme Court to hear crimes in relation to bikies, or the crime of murder, and protect the bikie court or the murder court by a provision such as 179 of the Industrial Relations Act.
BELL J: That might raise different issues. It is not, after all, that unusual that certain sorts of criminal offences, sometimes described as regulatory or welfare, are summary offences in respect of which there are limited rights of appeal. This is within New South Wales. I take up with you, Mr Hatcher, that perhaps the murder court is not necessarily the most apt example.
MR HATCHER: Your Honour, we are dealing with a jurisdiction that was previously exercised, summarily, by the Supreme Court - - -
BELL J: I understand that.
MR HATCHER: With an appeal available to the Court of Criminal Appeal and on to this Court.
BELL J: Yes. That happened to be the history with this form of regulatory or welfare offence, but they form an area of categorisation of criminal offences that have some discrete characteristics.
MR HATCHER: Your Honour, the characteristics of the particular example that we have before us is that it is an area of the criminal law previously protected by appeal to the Court of Criminal Appeal under this Court, and there may be other areas of the criminal law not so protected, but what the Parliament seeks to do here, subject to our arguments on the construction of the Criminal Appeal Act and the Industrial Relations Act, is to carve out that jurisdiction of the Supreme Court and the Court of Criminal Appeal and this Court and insulate it.
FRENCH CJ: You do not say that the Parliament cannot slice off bits of the jurisdiction of the Supreme Court and invest them in some other court. That is all right on your submission, provided that there is a right of appeal to the Supreme Court, so the Supreme Court retains at least an appellate jurisdiction in respect of that area, is that right?
MR HATCHER: That is so, your Honour. In fact, in Queensland prosecutions are brought before the Industrial Court in Queensland but there is an appeal from the Industrial Court to the Court of Criminal Appeal and in turn by leave to this Court.
GUMMOW J: Was your client cross-examined by his own counsel in the Industrial Court?
MR HATCHER: Yes, your Honour.
GUMMOW J: How did that come about?
MR HATCHER: He was called by the prosecutor, your Honour.
HEYDON J: How can that come about in a criminal case?
GUMMOW J: It seems to have come about at page 71.
HEYDON J: Is there some special provision in the Industrial Relations Act that permits this?
MR HATCHER: No, your Honour.
GUMMOW J: How does it happen? Why do not people complain?
MR HATCHER: There are some unusual aspects of the legislation in terms of making admissions and so forth.
GUMMOW J: What permits it to happen? What changes the ordinary procedures and rules to permit this to happen? Why is it acquiesced in if it is not required to happen?
MR HATCHER: It is always, if I may respectfully submit, the dangers of establishing jurisdictions and reposing jurisdiction in those jurisdictions that is unfamiliar to those who practise in them.
FRENCH CJ: There is no right of silence.
MR HATCHER: That is so, your Honour.
FRENCH CJ: Does it say that somewhere?
BELL J: Where do we find that?
MR HATCHER: In the Occupational Health and Safety Act – we will give a reference to it – but Mr Kirk was entitled to claim protection for himself but in order to defend the company because the allegation is that he is the company and whatever the company – unless he has done it the company has not done it. Effectively, he has got to be prepared to get there and give the evidence.
HEYDON J: That may be so if he has his own counsel calling him. It may be only theoretical, but it is quite an interesting question as to why the prosecution can call the accused in a criminal case.
MR HATCHER: I think they call him as a witness in the prosecution against the company and there is no right.
HEYDON J: Is there any limitation on his answers to their use against him?
MR HATCHER: No. At one stage, I should say, that Justice Walton did ask whether there was a need to give a caution, but the difficulty is the offence of the individual is complete when the company has contravened. He does not have a right of self-incrimination in respect of the company.
BELL J: But this is meaningless. The very proceedings in which he was called were proceedings in which he was charged with an offence.
MR HATCHER: Yes.
BELL J: What objection was taken to him giving evidence?
MR HATCHER: Your Honour, the answer is no objection was taken.
FRENCH CJ: Maybe his counsel just wanted to ask him leading questions.
GUMMOW J: It was done by consent.
FRENCH CJ: There is a protection from self-incrimination in section.....in relation to coercive production of information and evidence, I take it, to an inspector, but such evidence is not admissible against the person in criminal proceedings.
MR HATCHER: Yes, but admissible against the company, so the company gets convicted.
FRENCH CJ: Then he gets deemed to be convicted, yes.
MR HATCHER: Yes.
FRENCH CJ: So he is not giving evidence against himself; he is not - - -
HAYNE J: I am sure Justice Walton saw it in that fashion.
MR HATCHER: The next passage I wanted to travel to in Justice McHugh’s judgment was under the heading “State Supreme Courts cannot be abolished”. The second paragraph under that heading, his Honour says:
It necessarily follows, therefore, that the Constitution has withdrawn from each State the power to abolish its Supreme Courts or to leave its people without the protection of a judicial system. That does not mean that a State cannot abolish or amend the constitutions of its existing courts. Leaving aside the special position of the Supreme Court of the States, the States can abolish or amend the structure of existing courts and create new ones. However, the Constitution requires a judicial system in and a Supreme Court for each State and, if there is a system of State courts in addition to the Supreme Court, the Supreme Court must be at the apex of the system.
That is not the position in New South Wales, in this area. Mr Kirk has been left without the protection of a judicial system, if our arguments as to 73(ii) be wrong. Can I then turn to the judgment of your Honour Justice Gummow in that case, page 138, where at about point 9 your Honour said:
s 73 of the Constitution places this Court in final superintendence over the whole of an integrated national court system. This ensures the unity of the common law of Australia.
The 1986 legislation produced the result that there is but one stream of authority in Australia –
no mention of islands, if we might interpose –
and it flows from this Court throughout the nation. It is unnecessary for present purposes to determine whether the Constitution itself, by reason of the existence of the legislative power in s 51(xxxviii), from the outset contemplated, without the need for Imperial legislation, what has come to pass with the Australia Acts. This is because in any event the Constitution continues to speak to the present by taking into account the operation of the Australia Act 1986.
The existence of such an integrated system of law and the terms of s 73 itself necessarily imply that there be in each State a body answering the constitutional description of the Supreme Court of that State. Contrary to what appeared to be a tentative submission by the Solicitor-General for New South Wales, it would not be open to the legislature of that State to abolish the Supreme Court and to vest the judicial power of the State in bodies from which there could be no ultimate appeal to this Court.
Our simple submission is, can it be done by a thousand cuts? It can be seen then that in the situation that our primary contention is not accepted, that is, that the Industrial Court is the Supreme Court for the purposes of this area, where High Court authority is regarded as inapposite to the particular legislation, it can be tested where a federal matter is engaged, but can remain outside the mainstream where purely State matters are involved, can that be what was intended to be achieved by section 73, placing this Court at the apex of a unified Australian law?
In our respectful submission, it is not what is intended and if it is not what is intended, if there are not to be two grades of justice, 73(ii) must be read in such a way to ensure that that constitutional guarantee is delivered. It is delivered if the power to entertain appeals from courts in which federal jurisdiction is vested is read as courts in which federal jurisdiction is vested rather than simply courts exercising federal jurisdiction.
Now, if, contrary to our submissions, the Court were to find that there is no appeal available to our client from the Industrial Court, it will be necessary to consider whether the legislation seeking to remove the jurisdiction from the Supreme Court was available to New South Wales, that is, was the 1987 Act which sought to remove the jurisdiction of the Supreme Court and replace the Supreme Court with the Industrial Court beyond the constitutional power of New South Wales?
That proposition similarly flows from Kable. That is again the death by a thousand cuts. It is a different result because it does not read into the construction of 73(ii). It is the first of the two outcomes that your Honour the Chief Justice put to me flowed from our submissions immediately before lunch, that is, if there is no appeal, then was the legislation that is sought to remove that appeal constitutionally valid?
BELL J: Where is this in your submissions?
MR HATCHER: It certainly appears in our submissions in reply, your Honour. My recollection is that it is in the principal submissions as well. In our reply submission at paragraph 44. In the ultimate, if it be accepted that a State can, under the Constitution, create a court which is protected from appellate review within the Australian hierarchy of courts established under the Constitution, it may simply make clear that it was beyond the constitutional power of New South Wales to remove part of the criminal jurisdiction of the Supreme Court of New South Wales and repose it in such a court. The Industrial Court was without jurisdiction as the legislation conferring criminal jurisdiction upon it was beyond the constitutional competence of New South Wales.
FRENCH CJ: Do you say this is some form of implied limitation on State legislative power arising out of Chapter III and in particular section 73?
MR HATCHER: Yes. It is also, I am told, your Honour, dealt with at 54 of our principal submissions.
HEYDON J: Mr Hatcher, did the Evidence Act 1995 (NSW) apply in these proceedings, or does it apply?
MR HATCHER: Yes, your Honour, it does.
HEYDON J: Under that section, under that Act, a defendant is not competent to give evidence as a witness for the prosecution. That is 17(2), which is part of Chapter 2, Part 2.1. Section 190 says that:
The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of:
(a) Division 3, 4 or 5 of Part 2.1 –
but not Division 1. This trial does not seem to have been conducted according to the law. It is a matter for you.
MR HATCHER: Thank you, your Honour. It might be a matter for tomorrow, I think. If it please the Court, as we read the submissions that are put against us in relation to Kable, every step of our analysis of Kable is accepted subject only to the proposition that the requirements of Kable are met by the ability of the Supreme Court to correct jurisdictional error. So
they would say that there is no guarantee of an appeal, that it is sufficient that the Supreme Court can overcome jurisdictional error, if we understand their submissions.
GUMMOW J: You keep using this phrase “jurisdictional error” but certiorari lies in the fashion that is not limited to jurisdictional error, is that not so?
MR HATCHER: That is so, your Honour.
GUMMOW J: Hence the importance, perhaps, of section 69 of the Supreme Court Act (NSW) and its predecessors.
MR HATCHER: And also, your Honour, the other matter that your Honour raised with us before lunch, I wonder whether it would be convenient to return to those points tomorrow?
FRENCH CJ: We will adjourn until 10:15 tomorrow morning.
AT 4:15 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 30
SEPTEMBER 2009
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URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2009/237.html