Media release—AFEI calls for Royal Commission into NSW OHS laws

Released 3 February 2010

High Court decision in Kirk v Industrial Relations Commission

Today’s High Court judgment in the Kirk case makes it plain many prosecutions in the NSW OHS jurisdiction have been wrongly decided, beyond the jurisdiction of the Industrial Court of NSW.

The NSW OHS Act has been the source of enormous controversy for over a decade. As administered by WorkCover NSW and interpreted by the Industrial Court of NSW, the safety standard employers are expected to deliver is perfect safety, zero risk. That is not merely impractical, it is impossible to achieve.

The High Court has said today that the prosecutor in the Kirk case failed to identify the central features of the breach of the OHS Act which constituted the alleged offence (ie the particular risk that existed and the measure which should have been taken 'to obviate an identifiable risk'). This then left the defendant with the impossible task of trying to defend unstated alleged breaches and was a fatal jurisdictional failure.

It was also clear to the High Court that the Industrial Court’s original guilty verdict was based on a misconception of the law.

As a result, the High Court quashed the Kirk decision and several intervening appeal decisions and awarded costs against WorkCover NSW.

We call upon the State government to immediately establish a Royal Commission to review all decisions under the OHS Act (NSW) and to determine which ones suffer from the fatal flaws identified in the High Court’s Kirk judgment. They also should be reversed and costs repaid to the employers concerned.

Garry Brack

Chief Executive

Australian Federation of Employers & Industries

See the AFEI article 'Significant constitutional challenge allowed' for more information.