Islands of power?

Courts Law Parliament Australia

On 3 February this year, the High Court ruled that state parliaments could not create “islands of power immune from supervision and restraint.” This judgment reflects the fact that when the colonies came together to form the Commonwealth, they gave up any capacity they may have had to confer power on administrative bodies and inferior courts and to then make the exercise of that power unreviewable by the State Supreme Court. Whatever the circumstance, the courts must have their say. This is a significant restriction on state legislative power. Its contemporary importance needs to be understood in the context of rising numbers of specialist tribunals, a general disfavour of the expense and delay involved in judicial process, and the national moves towards the harmonisation of state and Commonwealth regulation.

Kirk v Industrial Relations Commission involved a prosecution under the NSW Occupational Health and Safety Act 1983 (the OH&S Act). The defendants were a company, Kirk Group Holdings Pty Ltd, and the manager of that company, Graeme Kirk. In 2001, an employee of Kirk Group, Graham Palmer, had driven the company’s All-Terrain Vehicle off road and down a hill. There was no path, and the hill was steep. The car overturned, and Mr Palmer died. Kirk Group and Mr Kirk were charged with offences under sections 15 and 16 of the OH&S Act for failing to ensure the healthy, safety and welfare of workers, and failing to ensure that people were not exposed to health and safety risks by reason of conduct of the Kirk Group’s employees.

Where an employee has actually been injured, the provisions of the state’s OH&S Act make it very difficult to defend a charge. In effect, the employer has to show that no reasonably practicable measure would have avoided the injury. This imposes a more difficult burden than the defendant would face in any other Australian jurisdiction. In other jurisdictions, the prosecution bears the onus of showing what could have been done; in New South Wales, the onus is effectively on the defendant to show what could not have been done.

While this burden can be hefty, it is not prohibitive. Ordinarily, the defendant need not deal with all hypothetically possible measures. They only need respond to those measures set out in the statement of the charge. If the measures are narrowly defined, the defendant faces a difficult but not impossible task.

In Kirk, however, the regulator made the defendants’ burden even more onerous. The formal statement of the charge did not specify any particular measures the Kirk Group and Kirk could have taken to prevent the injury. It specified only a general failure to take measures set out in the OH&S Act. The Industrial Court of New South Wales considered the charges, held that Kirk Group and Mr Kirk had failed to prove that there was nothing further they could have done to prevent the injury, and convicted them. After an unsuccessful appeal to the NSW Court of Appeal, the matter came before the full bench of the High Court. The High Court unanimously allowed the appeal by Mr Kirk and the Kirk Group. Chief Justice French, and Justices Gummow, Hayne, Crennan, Kiefel and Bell wrote a joint judgment, while Justice Heydon wrote separately.

The joint judgment held that the Industrial Court had made two errors. First, it had misconstrued the OH&S Act by considering that the prosecutor need not demonstrate any particular measures that the defendants could have taken. This construction of the OH&S Act was necessitated by the basic common law principle that “a defendant is entitled to be told… of the particular act, matter or thing alleged as the foundation of the charge.” The Industrial Court also made a further error (one which particularly incensed Justice Heydon) in allowing the prosecution to call Mr Kirk as a witness. This was contrary to the express terms of the NSW Evidence Act 1995.

Having concluded that the Industrial Court had committed errors, the High Court turned to the more fundamental issue raised by the case. This arose due to a provision of the NSW Industrial Relations Act 1996 that provided that decisions of the Industrial Court are final, and may not be appealed against, reviewed, quashed or called into question by any court or tribunal (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise). In the language of administrative lawyers, this is a “privative clause.” While there are obvious technicalities in the language used in these kinds of privative clauses, the intent of this one was clear – to the greatest extent possible, to make sure that the decisions of the Industrial Court were the last word on the matter.

In the last five years, the High Court has had much to say about privative clauses. In Plaintiff 157 (2003), the High Court rendered ineffective the Howard government’s attempt to protect migration decisions from judicial review. In Futuris (2008), the High Court considered privative clauses again, this time in the context of income tax legislation. The theme of these judgments had been hostility to attempts by the Commonwealth to oust judicial review. Questions remained, however, about the approach the Court would take to attempts by the states to oust judicial review. In the case of the Commonwealth, the Constitution is clear – the High Court has an entrenched power to issue remedies for excess of power by Commonwealth officials. There is no similar express entrenchment for excess of power by state officials.

In Kirk, the High Court said that the Constitution does impose limitations on the extent to which states can insulate administrators from judicial review. This, the High Court said, was implicit in two parts of the Constitution.

First, chapter III of the Constitution refers to there being a body called “the Supreme Court of a State.” The implication from this, according to existing High Court authority, is that “it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description.” The joint judgment noted that, at the time of federation, the Supreme Courts of the states each had the same jurisdiction as was possessed by the Court of Queen’s Bench in England. That included a power to issue the administrative law writ of certiorari (in effect, a writ to quash an unlawful decision by an administrator). Because the state Supreme Courts possessed this power at federation, the joint judgment said, to take that power away would be to render them no longer “Supreme Courts” within the meaning of the Constitution. The power to supervise and issue remedies for default by state officials was a fundamental feature of a Supreme Court, and one which could not be taken away by state legislation.

Second, the High Court repeated a proposition from established authority: “there is but one common law of Australia.” This unity, the joint judgment appeared to say, is guaranteed by the Constitution when it states that there shall be one “Federal Supreme Court” (the High Court) in which is vested the judicial power of the Commonwealth. The fact that the High Court sits at the apex of Australia’s judicial system creates an environment within which the unity of the common law can be secured – divergence from courts and tribunals below can be considered and corrected by one, Commonwealth body. If a decision-maker’s conduct were immune from review, there is an inherent risk that “distorted positions” will be created – in effect, pockets of public power being exercised in divergent ways. This, the High Court said, was impermissible.

Having concluded that, were it to oust judicial review, the privative clause would be invalid, the High Court said (following the same reasoning that it did in Plaintiff S157) that the clause should be read down so as not to apply to decisions vitiated by fundamental (“jurisdictional”) errors. The result was that the appeal was successful – the Industrial Court had erred, and that error could be reviewed and corrected.

Kirk fits neatly into the recent trend of High Court decisions. The Court has shown that despite the absence of a constitutional bill of rights, it still enjoys the capacity within the bounds of the Constitution to act so as to ensure that public power is not abused. Where Parliament gives power, the High Court will construe it narrowly to accord with fundamental legal principles (in this case, the principle that a defendant is entitled to know the particulars of the offence against him or her). Further, the High Court will strictly police any excess of that (already narrowly construed) power, and beware the Parliament that seeks to cut the courts out of that process. The lesson of Kirk is that the states, like the Commonwealth, are not immune from this trend.

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