HCA: Kirk – privative clauses & jurisdictional errors

Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010) 

 

The High Court quashed the convictions flowing from the death of Mr Graham Palmer in a farming accident. Mr Palmer was employed by Group Holdings Pty Ltd as the manager of their farm. Mr Kirk was a director and took no active role in the farm. Mr Palmer died when the All Terrain Vehicle he was driving rolled down a hill.

A NSW OH&S prosecution followed, wherein the principle grievance on appeal was lack of particulars in the complaint so as to properly defend the charges pursuant to section 53(a) and the defendant giving evidence on behalf of the prosecution, and in so doing the court exceeded its jurisdiction. The court  considered at length the history and rationale of the power to grant of relief of certiorari.

The key question to be answered was posed at paragraph 34:

“If a risk was or is present, the question is – what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge.”

 

The court discussed in general terms the non-delegable duty of employers and the term reasonably practicable. The duty of employers remains the same:

10.

A few observations may be made at this point. The obligation upon the employer is expressed in terms personal to that employer. It is the employer who must ensure the health, safety and welfare of employees at work. The obligation is the kind of non-delegable duty spoken of in Kondis v State Transport Authority[8]. It is not expressed in terms of the standard recognised by the common law, to take reasonable care. It is higher. So much is evident from the requirement “to ensure” the health, safety and welfare of employees or that persons are not exposed to risks to their health and safety at the place of work. The exclusion of the common law standard is confirmed by the terms of the defences provided by s 53, to which reference will shortly be made.

11.

Section 15(2) identified, in general terms, some types of measures which an employer may need to take in order to ensure the health, safety and welfare of employees. The list is not exhaustive. What measures are necessary to be taken will depend upon the particular circumstances prevailing at the workplace, what activities are there conducted, what machinery, plant or substances are involved, the tasks undertaken by the employees and the skills of the employees in question, to mention but a few factors. What the terms of sub-s (2) make plain is that an employer must identify risks to the health, safety and welfare of employees at the workplace and take steps to obviate those risks. Thus where plant and machinery are used at a workplace, an employer must keep them in good order, where to do otherwise would pose a risk to employees’ health and safety, and must implement systems concerning their use so as to obviate any such risk[9]. An employer is required to identify risks to employees which might be overcome by the provision of information, instruction, training or supervision and then to take such action in that regard “as may be necessary”[10]. An employer is to “take such steps as are necessary” to make available information concerning the use for which plant is designed and conditions necessary for its safe use[11]. Section 16 required similar considerations and measures to be undertaken with respect to non-employees present at the workplace.

12.

Sections 15 and 16 comprehend that the generally stated duty is contravened when a measure should have been taken by an employer to obviate an identifiable risk. That those provisions are contravened where there has been a failure, on the part of an employer, to take a particular measure, is confirmed by references in ss 15 and 16 to what constitutes an offence. Sections 15(4) and 16(3) referred to “the act or omission concerned” which “constituted a contravention” of s 16 or s 15 respectively[12]. Section 49 in Pt 6, which concerned the time for instituting proceedings for offences, provided that they must be instituted within two years “after the act or omission alleged to constitute the offence”.

13.

To this point reference has been made to the identification of what should have been done by an employer, which will arise in a case such as this, where an employee has been harmed. It is not necessary that harm has already befallen an employee for an offence to have been committed. Where an inspector authorised under the OH&S Act identifies a risk to the health, safety or welfare of employees present at a workplace, which an employer has not addressed, s 15 may be contravened. An obvious example would be the failure to guard dangerous machinery. Upon conviction of such an offence the Industrial Court may order the employer “to take such steps as may be specified in the order for remedying that matter” within a prescribed period, where it is “within the person’s power to remedy”, in addition to imposing a penalty[13]. It would be necessary for the charge to identify the “matter” to be remedied to enable such an order to be made.

14.

A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer’s obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act[14]. But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence.

15.

The necessity for a statement of offence to identify the act or omission of the employer said to constitute a contravention of s 15 or s 16 is even more apparent when regard is had to the defences which were available to employers in proceedings for offences against the provisions. Section 53 provided:

“It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:
(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or
(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.”[15]

16.

The scheme of this legislation stood apart from other legislation of this type in Australia. In other States the employer’s obligation, to take measures for the health and safety of employees and others, was limited to the taking of such measures as were practicable[16]. This Court has held that such a provision places the onus upon the prosecution to show that the means which should have been employed to remove or mitigate a risk were practicable[17]. A feature of the legislation here in question is that where an employer is charged with an act or omission which is a contravention of s 15 or s 16, it will be necessary for the employer to establish one of the defences available under s 53 in order to avoid conviction. Where reliance is placed by the employer on s 53(a), it would be necessary for the employer to satisfy the Industrial Court, to the civil standard of proof, that it was not reasonably practicable to take the measure in question. Such a defence can only address particular measures identified as necessary to have been taken in the statement of offence.

17.

Section 53(a), in the context of proceedings for offences against ss 15 and 16, referred to the situation where it is not reasonably practicable for an employer to comply “with the provision of this Act”. It is not to be understood as requiring an employer to negative the general provisions of ss 15 and 16 and to establish that every possible risk was obviated. It requires that regard be had to the breach of the provision which it is alleged constituted the offences. A breach or contravention of s 15 or s 16 is the measure not taken, the act or omission of the employer.

18.

The duties referred to in ss 15(1) and 16(1) cannot remain absolute when a defence under s 53 is invoked. The defence allows that not all measures which may have guaranteed against the risk in question eventuating have to be taken. The measures which must be taken are those which are reasonably practicable. The term is not defined in the OH&S Act, but it may often involve a common sense assessment[18]. An understanding of the scheme of Pts 3 and 6 precludes acceptance of the appellants’ contention that it is necessary to imply the common law standard of care in ss 15(1) and 16(1). The OH&S Act delimits the obligations of employers by the terms of the defences provided in s 53.

19.

What was necessary to be done in connection with the health, safety and welfare of employees and others at the workplace depended upon the presence of identifiable risks and measures which could be taken to address them. The question which may follow, as to what was or was not reasonably practicable for the employer to have undertaken, is directed to the measures so alleged. It is the employer’s act or omission with respect to those measures which had to be identified in the statement of any offence charged under ss 15 and 16.

The court‘s rationale for holding the charges were not adequately particularised has implications for the manner in which investigations and prosecutions proceeed:

 As raised above the defendants needed to be able to sustain the following defence:

it  was not reasonably practicable for the person to comply with the provision of (the) Act or the regulations the breach of which constituted the offence“.

The court found that the test for the defence is what is “reasonably practicable” and because the charges did not specifiy what measures the defendants failed to take, the defendants did not know what was required to prove it was not reasonably practicable. The court held that it was not necessary “to establish that every possible risk was obviated” to make out the defence. It also held that it was not enough simply to recite the phrasing of the legislation relied upon as particulars of the offence. In this case the charges did not particularise what the defendants should have done to eliminate or control the relevant risk.

24.

Mr Kirk was charged with the same offences. Section 50(1) of the OH&S Act provided that where a corporation contravenes any provision of the Act, whether by act or omission, each director of the corporation, and each person concerned in its management, shall be deemed to have contravened the same provision unless he or she satisfies the Industrial Court that he or she was not in a position to influence the conduct of the corporation in relation to its contravention or, being in such a position, used all due diligence to prevent the contravention.

25.

The statement of the offence against s 15(1) did little more than follow the words of that sub-section. The first three particulars provided of the offence simply combined the words of s 15(2)(a), (c) and (f) with a reference to the ATV. Likewise the first particular relating to the s 16(1) offence repeated the words of that sub-section and merely connected them to the operation of the ATV. Of the other two particulars provided to each charge, only that which alleged a failure to ensure that the ATV was operated by persons with appropriate training came close to any measure of specificity.

26.

The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge[22]. In John L Pty Ltd v Attorney-General (NSW)[23], it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed[24]. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet[25]. The common law requirement is that an information, or an application containing a statement of offences, “must at the least condescend to identifying the essential factual ingredients of the actual offence”[26]. These facts need not be as extensive as those which a defendant might obtain on an application for particulars[27]. In Johnson v Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant’s acts or omissions”[28]. McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”[29].

27.

The acts or omissions the subject of the charges here in question had to be identified if Mr Kirk and the Kirk company were to be able to rely upon a defence under s 53. The defendant in Johnson v Miller was placed in a similar position. The statute in question provided that a licensee of licensed premises would be liable to a penalty if a person was present on the premises during certain prohibited hours, unless the licensee could establish one of the justifications or excuses relating to that person’s presence provided for in the statute. Dixon J observed that each of the justifications depended upon some feature pertaining to the person found in, or seen leaving, the premises and that no licensee could succeed in bringing the case within any of the grounds of excuse unless the person or persons were identified and their presence on a distinct occasion alleged[30].

28.

The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.

29.

Section 11 of the Criminal Procedure Act 1986 (NSW) provided[31] that the description of any offence in the words of an Act creating the offence “is sufficient in law”. In Smith v Moody[32], it was held that such a provision did not dispense with the common law rule[33]. In Ex parte Lovell; Re Buckley[34], Jordan CJ doubted that earlier authorities such as Smith v Moody should be regarded as binding and that the object of the rule could be secured only by the requirement of particulars on the face of the information[35]. Nevertheless, in Johnson v Miller, Dixon J appears to have applied the common law rule[36] and to have held that a statutory provision like that made by s 11 of the Criminal Procedure Act 1986 “relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant’s acts or omissions”[37].

30.

No application was made to the Court of Appeal for an order in the nature of certiorari quashing the orders made by the Industrial Court that required Mr Kirk and the Kirk company to appear to answer the offences charged. Those orders of the Industrial Court were expressed as being made pursuant to s 4(1) of the Summary Jurisdiction Act as applied by s 168 of the IR Act. Section 4(1) of the Summary Jurisdiction Act permitted the making of an order “[u]pon an application being made … in accordance with the rules” and the relevant rules required that the nature of the offence be stated. Section 6(1) of the Summary Jurisdiction Act provided, in effect, that no objection was to be taken or allowed to any order made under s 4 by reason of any alleged defect in it in substance or in form. Because no application was made to quash the orders requiring appearance to answer the charges, it is neither necessary nor appropriate to examine whether those orders were made upon an application made “in accordance with the rules”, or to consider whether or how s 6 of the Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller[38] where it would act as “an administrative commission of inquiry” rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences.

The Industrial Court’s approach to offences against ss 15 and 16

31.

It may be inferred from the concluding statements to the charges that it was considered sufficient to allege that, as a consequence of a series of unspecified failures on the part of the employer, there remained present general risks to the health and safety of employees and others. This mirrors the approach to the requirements of ss 15 and 16 which appears to have been taken in a series of previous cases in the Industrial Court and which was followed in the present case.

32.

Under the heading “Legal Principles” Walton J referred to a series of propositions arising from cases in the Industrial Court which have been concerned to identify the extent of the duty imposed by s 15[39]. The list included the following propositions: that the duty imposed upon an employer, to ensure the health, safety and welfare of employees at work, is absolute; that that duty is to be construed as meaning “to guarantee, secure or make certain”; and that the duty is directed at “obviating ‘risks'” to safety at the workplace. A further proposition, said to arise from the cases, was that it was necessary to establish a causal connection between a failure on the part of the employer and the risk to the health, safety and welfare of employees. This causal connection, between a general class of risk and something which the employer could have done, was treated as a matter of central importance in his Honour’s reasons. The step which was not undertaken was to identify the measure which the employer should have taken as relevant to the offence. To the contrary, the cases are said to establish the proposition that a prosecutor is not required to demonstrate that particular measures should have been taken.

33.

The propositions listed by his Honour appear to assume that the employer’s obligation, to guarantee against risks in the workplace, remains in existence at all times and that the question of an employer’s liability is to be determined by reference to it. There is no discussion of how the defences under s 53 can co-exist with that obligation. The only reference to the defences in the authorities referred to by his Honour is to the terms of s 53 and an acknowledgement that measures which may have been taken may be relevant to them. Since it was considered unnecessary for the prosecutor to identify those measures, it would appear to follow that the employer would be required to establish that there were no reasonably practicable measures, of any kind, which could have been addressed to the type of risk. If there was something further that could be done, the causal connection with the risk would remain and the employer would be guilty of an offence. The provisions of the OH&S Act relating to offence and defence were not intended to operate in this way.

34.

Walton J referred to earlier case law that the duty imposed upon an employer “is to be construed as meaning to guarantee, secure or make certain” and that the duty is directed at obviating “risks” to safety at the workplace. References to guarantees, and emphasis upon general classes of risks which are to be eliminated, tend to distract attention from the requirements of an offence against ss 15 and 16. The approach taken by the Industrial Court fails to distinguish between the content of the employer’s duty, which is generally stated, and the fact of a contravention in a particular case. It is that fact, the act or omission of the employer, which constitutes the offence. Of course it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is – what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge.

35.

His Honour approached the question, as to whether contraventions were proved, in a manner consistent with the views stated in the cases to which he referred. His Honour identified the risks relevant to the offences in question as relating to the use of the ATV off-road and to its use for the purpose of towing and held that the Kirk company’s duty was to eliminate those risks. His Honour found that the risks remained. The causal connection of which the cases spoke was present. His Honour concluded, with respect to the defence under s 53(a), that it could not be said that it was not reasonably practicable to have taken precautions against the risks. His Honour did not consider whether particular measures which should have been taken by the Kirk company needed to be identified in the charges for the defences to operate.

36.

The risks to which his Honour referred were described in some detail in the Owner’s Safety Manual, which had been provided with the ATV at the time it was purchased. His Honour was prepared to accept that Mr Palmer had read the Manual and there was evidence that the other employee had done so. In argument on the appeal to this Court it was suggested by counsel that, nevertheless, there were further steps Mr Kirk and the Kirk company could have taken. They could be seen in the findings of his Honour: that Mr Palmer and the other employee could have been expressly instructed to comply with the Manual and that there should have been further instruction relating the warnings in the Manual to the terrain of the farm, although the employees were familiar with it. His Honour also found, in connection with the defence and in general terms, that the employees and the fencing contractors could have been given training.

37.

It is not necessary to further consider the correctness of these findings. For present purposes it is sufficient to observe that his Honour’s reasons disclose a wrong understanding of what constituted an offence against ss 15 and 16 and how the defence under s 53(a) was to be applied in proceedings for such an offence. His Honour did not appreciate that no act or omission on the part of the Kirk company had been charged. To the contrary, his Honour accepted the proposition that the prosecutor is not required to demonstrate that particular measures should have been taken to prevent the risk identified.

38.

A consequence of the matter proceeding to conviction on the charges as stated, absent the identification of measures the Kirk company should have taken, was that it was denied the opportunity to properly put a defence under s 53(a). Instead, the Kirk company was required to show why it was not reasonably practicable to eliminate possible risks associated with the use, or possible use, of the ATV. The guarantee against risk, seen as provided by s 15, was treated as continuing, despite a defence under s 53(a) being raised. The operation of that defence was treated as largely confined to an issue of reasonable foreseeability.

39.

The errors disclosed in the reasons of the Industrial Court raise the question whether the Court of Appeal should have made orders for certiorari quashing the convictions. The resolution of that question will require consideration of a privative provision[40] and the legal nature of the errors. The construction of the privative provision will also direct attention to the position of the Supreme Court of New South Wales in the hierarchy of courts in New South Wales and as a court from which an appeal lies to this Court.

40.

Before consideration is given to whether orders of certiorari should have been made, it is necessary to say something more about the curial history of the matter and how the errors relied on as warranting orders for certiorari were dealt with in the Supreme Court of New South Wales.

Defendant giving evidence for the prosecution:

50.

In the course of the hearing of the appeal, this Court directed the parties’ attention to the fact that the reasons of Walton J recorded that the prosecution had called Mr Kirk as a witness. This Court was told that Mr Kirk’s giving evidence for the prosecution was a course agreed upon by both sides.

51.

Section 163(2) of the IR Act provides that the rules of evidence applied to the Industrial Court. Section 17(2) of the Evidence Act 1995 (NSW) (“the Evidence Act“) was thus engaged. That sub-section provides that a defendant is not competent to give evidence as a witness for the prosecution. The provision made by s 17(2) could not be waived. Section 190 of the Evidence Act permits a court, if the parties consent, to dispense with some of the provisions of the Act, but the provisions made by Div 1 of Pt 2.1 of the Act (ss 12-20) concerning the competence and compellability of witnesses may not be waived.

52.

Although reference was not made in the proceedings in the Court of Appeal to this departure from the rules of evidence, it was not submitted that Mr Kirk and the Kirk company could not rely upon it in this Court. It was submitted by the second respondent that some distinction could and should be made about the competence of Mr Kirk to give evidence against the Kirk company and his competence to give evidence as a witness for the prosecution at his own trial. It is enough to say that where, as was the case here, Mr Kirk and the Kirk company were tried jointly, a distinction of the kind asserted by the second respondent cannot be drawn.

53.

It may be that some departures from the rules of evidence would not warrant the grant of relief in the nature of certiorari. That issue need not be explored. The departure from the rules of evidence in this case was substantial. It was not submitted that either the nature of the departure, or the circumstances in which it occurred, were such as to warrant discretionary refusal of relief[63].

This issue was examined at length by Heydon J in a separate judgment on the point starting at paragraph 114 and is well worth reading.

 54.

The errors of construction of s 15 of the OH&S Act and the failure to comply with the rules of evidence (by permitting a person accused of crime to give evidence on behalf of the prosecution) warranted, and in this case required, the grant of relief in the nature of certiorari to quash the conviction and sentence of each appellant. This conclusion directs attention to several points, of which some will require separate examination. It is desirable, however, to begin by setting them out in summary form.

55.

The points are:

(a)Both errors of law appear in the reasons of Walton J.

(b) Both errors therefore appear “on the face of the record” as that expression must be understood in the light of s 69(3) and (4) of the Supreme Court Act 1970 (NSW)[64].

(c) Both errors are jurisdictional errors.

(d) Chapter III of the Constitution[65] requires that there be a body fitting the description “the Supreme Court of a State”[66].

(e) 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[67].

(f) A defining characteristic of State Supreme Courts is the power to confine inferior courts and tribunals within the limits of their authority to decide by granting relief in the nature of prohibition and mandamus, and, as explained further in these reasons, also certiorari, directed to inferior courts and tribunals on grounds of jurisdictional error.

(g) If a court has limited powers and authority to decide issues of an identified kind, a privative provision does not negate those limits on that court’s authority.

(h) A privative provision in State legislation, which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error, is beyond the powers of the State legislature. It is beyond power because it purports to remove a defining characteristic of the Supreme Court of the State.

(i) Construed against this constitutional background, s 179 of the IRAct[68] does not (and could not validly) exclude the jurisdiction of the Supreme Court of New South Wales to grant relief in the nature of prohibition, certiorari or mandamus directed to the Industrial Court for the purposes of enforcing the limits on that Court’s statutory authority. In particular, the privative provisions of s 179 do not, on their proper construction, exclude certiorari for jurisdictional error.

(j) In determining whether the errors of law that were made by Walton J permitted the grant of relief in the nature of certiorari, statutory identification of the Industrial Court as a “superior court of record” is irrelevant.

 

66.

In Craig v South Australia, this Court recognised[96] the difficulty of distinguishing between jurisdictional and non-jurisdictional errors, but maintained the distinction. As was pointed out in Re Refugee Review Tribunal; Ex parte Aala[97]:

“The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.”

As was also pointed out in Aala[98], there can be no automatic transposition to Australia of the principles that developed in England in relation to the availability of certiorari and prohibition. The constitutional context is too different to permit such a transposition. At the federal level, allowance must be made for the evident constitutional purposes of s 75(v) of the Constitution; at a State level, other constitutional considerations are engaged. As was pointed out by Gummow J in Gould v Brown[99], “[w]hen viewed against the Constitution in its entirety, Ch III presents a distinct appearance. Upon what had been the judicial structures of the Australian colonies and, upon federation, became the judicial structures of the States, the Constitution by its own force imposed significant changes.”

Jurisdictional error – this case

 71.

It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. Professor Aronson has collected authorities recognising some eight categories of jurisdictional error[106]. It is necessary, however, to make good the proposition stated earlier in these reasons that the two errors that have been identified as made by the Industrial Court at first instance (and not corrected on appeal to the Full Bench) were jurisdictional errors. The Court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows.

72.

First, the Court stated[107], as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist” (emphasis added). Secondly, the Court pointed out[108] that jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers” (emphasis added). (The reference to “theoretical limits” should not distract attention from the need to focus upon the limits of the body’s functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified[109] what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples:

(a) the absence of a jurisdictional fact;

 (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and

 (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.

 The Court said[110] of this last example that “the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern” and gave as examples of such difficulties R v Dunphy; Ex parte Maynes[111], R v Gray; Ex parte Marsh[112] and Public Service Association (SA) v Federated Clerks’ Union[113].

 73.

As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that – examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example.

74.

The first of the errors in question in this case – the errors of construction of s 15 of the OH&S Act – can be identified as a jurisdictional error of the third kind identified in Craig. That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct.

75.

The explanation just offered also demonstrates that the error made by the Industrial Court was not only an error about the limits of its functions or powers. It was an error which led to it making orders convicting Mr Kirk and the Kirk company where it had no power to do so. The Industrial Court had no power to do that because an offence against the OH&S Act had not been proved. It follows that the Industrial Court made orders beyond its powers to make.

76.

In addition to the error just considered, the Industrial Court misapprehended a limit on its powers by permitting the prosecution to call Mr Kirk at the trial. The Industrial Court’s power to try charges of criminal offences was limited to trying the charges applying the laws of evidence. The laws of evidence permit many forms of departure from the rules that are stated. Many, perhaps most, departures from the strict rules of evidence can be seen as agreed to by parties at least implicitly. But calling the accused as a witness for the prosecution is not permitted, even if the accused consents to that course. The joint trial of Mr Kirk and the Kirk company was not a trial conducted in accordance with the laws of evidence. The Industrial Court thus conducted the trial of Mr Kirk and the Kirk company in breach of the limits on its power to try charges of a criminal offence.

77.

For these reasons, putting aside consideration of the privative provisions of s 179 of the IR Act, certiorari would lie in this case for jurisdictional error in both of the respects identified. It is necessary, however, before dealing directly with the construction and application of those privative provisions to say something further about error of law on the face of the record.

95.

In considering Commonwealth legislation, account must be taken of the two fundamental constitutional considerations pointed out in Plaintiff S157/2002 v The Commonwealth[129]:

“First, the jurisdiction of this Court to grant relief under s 75(v) of the Constitution cannot be removed by or under a law made by the Parliament. Specifically, the jurisdiction to grant s 75(v) relief where there has been jurisdictional error by an officer of the Commonwealth cannot be removed. Secondly, the judicial power of the Commonwealth cannot be exercised otherwise than in accordance with Ch III. The Parliament cannot confer on a non-judicial body the power to conclusively determine the limits of its own jurisdiction.”

96.

In considering State legislation, it is necessary to take account of the requirement of Ch III of the Constitution that there be a body fitting the description “the Supreme Court of a State”, and the constitutional corollary 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”[130].

97.

At federation, each of the Supreme Courts referred to in s 73 of the Constitution had jurisdiction that included such jurisdiction as the Court of Queen’s Bench had in England[131]. It followed that each had “a general power to issue the writ [of certiorari] to any inferior Court” in the State[132]. Victoria and South Australia, intervening, pointed out that statutory privative provisions had been enacted by colonial legislatures seeking to cut down the availability of certiorari. But in The Colonial Bank of Australasia v Willan, the Privy Council said[133] of such provisions that:

“It is, however, scarcely necessary to observe that the effect of [such a privative provision] is not absolutely to deprive the Supreme Court of its power to issue a writ of certiorari to bring up the proceedings of the inferior Court, but to control and limit its action on such writ. There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queen’s Bench will grant a certiorari; but some of those authorities establish, and none are inconsistent with, the proposition that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it.” (emphasis added)

That is, accepted doctrine at the time of federation was that the jurisdiction of the colonial Supreme Courts to grant certiorari for jurisdictional error was not denied by a statutory privative provision.

98.

The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, “with such exceptions and subject to such regulations as the Parliament prescribes”, s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the “Federal Supreme Court” in which s 71 of the Constitution vests the judicial power of the Commonwealth.

99.

There is but one common law of Australia[134]. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of “distorted positions”[135]. And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics.

100.

This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.

108.

An order in the nature of certiorari could, and in this case should, have been directed to the Industrial Court in respect of its decisions at first instance. That remedy should have been granted for jurisdictional error of the Industrial Court. Because both the order of Walton J finding the offences proved and the order of Walton J passing sentence should have been quashed, the orders subsequently made by the Full Bench of the Industrial Court should also be quashed[142].

  

Brisbane Barrister – David Cormack

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