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From the Desk of the Executive Director

Ken Phillips is co-founder and Executive Director of Independent Contractors of Australia. He is a published authority on independent contractor issues and directs research on related commercial and trade practices issues. Through his numerous articles in newspapers and think-tank and academic journals, Ken is known for approaching issues from outside normal perspectives and is frequently sought out for media comment.

Kirk's legal revolution

Thursday, February 04, 2010

The full ramifications of yesterday's news on the 'Kirk' High Court decision --- which, as Robert Gottliebsen reported yesterday, effectively knocks over New South Wales' OHS laws --- should not be underestimated.

The High Court decision has the potential to have an impact well beyond NSW and OHS to a wide body of law nationally. The interest is in the way the High Court approached their decision to quash Mr Kirk's criminal OHS conviction and order the NSW WorkCover authority to pay Mr Kirk's costs.

Mr Kirk was being denied natural justice in part because NSW industrial relations laws prevent appeals against decisions of the NSW Industrial Relations Court.

The High Court seems to have stepped back from the specifics of Mr Kirk's case and considered a higher order principle of justice. That is, that the common law right to appeal decisions of any court through to the High Court is embedded in the Australian constitution. Further, no government or lower court or tribunal has the constitutional ability to create circumstances that prevent appeals against their decisions.

The High Court appears to have said that it will be the protector of these constitutionally guaranteed common law rights and override tribunals or governments that offend this right to appeal.

The High Court decision is complex in its wording and pathways of legal logic. There'll be lots of lawyer-hours spent clarifying precisely what the High Court has stated. But if the above, simplified understanding has truth, the implications are potentially jaw dropping.

Take industrial relations. Industrial tribunals are quasi courts. They operate on a manufactured body of rules that don't neatly fit within a normal person's understanding of the 'rule of law'.

For example, the right of individuals to personally control the terms of their own (work) contracts is denied to them and transferred to an industrial tribunal. Most of the decisions about an individual's employment contract are made by people who are not party to the contract. The individual is made powerless. Decisions are made within an opaque deal-making environment which industrial relations tribunals sanctify.

It's a strange process, which is why most workers, managers and just about everyone else find industrial relations mystifying. To understand it you need to have intimate knowledge of the inner politics and personalities of the deal-making. The idea of proper law doesn't fit.

In NSW they took this to an extreme, preventing appeals against the deal-making of the industrial quasi court. They then gave the industrial tribunal the exclusive ability to make decisions over criminal matters under OHS, including the capacity to impose jail sentences. It was this regime of industrial tribunal rules to which Mr Kirk was subjected.

The High Court has said no to this. Mr Kirk is entitled to the normal process of law. When the High Court applied proper law to Mr Kirk they found he was not guilty, that the WorkCover prosecutors had breached the Evidence Act and that the Industrial Court of NSW had possibly misused or misunderstood its authority.

No other industrial relations jurisdiction in Australia prevents appeals, so the Kirk decision may be limited to NSW. But what other areas of industrial relations rules offend normal law? Could these potentially be constitutionally invalid under the Kirk principles?

There are also other areas of regulatory administrative practice where tribunals may be misinterpreting the limits of their powers. Environmental courts sometimes have features that reflect the NSW industrial relations system. Is the theft of farmers' property rights through the denial of land clearing by environmental laws and tribunals now potentially appealable? Could Cape York indigenous communities challenge the Queensland government's Wild River legislation on the basis of the theft of their property rights?

At the moment this is speculation. The High Court decision is only one day old. The extent to which it could apply beyond NSW OHS laws will be the subject of much legal study.

One thing is clear. Mr Kirk is a brave man to whom Australians owe thanks. The High Court stated that Mr Kirk had suffered much under the oppression of the NSW industrial relations system. When parliaments create laws and institutions that subvert the rules of legal justice, the pain is felt by isolated individuals. Many individuals in NSW have suffered.

Mr Kirk stood up to and defied the institutional might of the NSW industrial relations machine created and made possible through a contortion of law. We can thank Mr Kirk and the High Court for the return of the rule of law.

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