Kirk’s new Enterprise - The High Court reigns in OHS regulators

By Andrew Douglas*
Friday, 05 March, 2010

In its recent decision on the Kirk case, the High Court has at last said enough is enough. In all jurisdictions, OHS regulators have launched prosecutions complaining of acts and omissions by employers, directors and managers without asking what the correct action should haven been.

The High Court went to considerable length to demonstrate, particularly in reverse onus states such as NSW and Qld, that an employer, director or manager does not have to prove that he or she took all steps to avoid a risk of injury. The test of reasonably practicable was becoming a search for any failure. Responsibilities required of employers was moving beyond reality. The case law coming out of NSW over the last two years unquestionably raised the bar for defending breach prosecutions to an almost impossible height. And now the High Court has redressed the imbalance.

The effect of the decision is as follows:

  1. A regulator must not only allege the error but state what should have happened. That places the onus on the Regulator to demonstrate “the reasonably practical solution” and own the legal debate whether such a fix is fair. This requirement alone will significantly reduce the number and ambit of prosecutions from all states.
  2. ‘In reverse onus’ states that the prosecution will carry a greater onus of establishing the error and providing the reasonably practicable solution.
  3. In all states, the cavalier approach of some prosecutors to complain of an employer’s behaviour will be reined in. The prosecutors will now have to prove what could have been done. In many of the novel cases we act in, this will prove an insurmountable problem for the regulators and/or the Crown.
  4. In future, the strictness of the breach provisions in OHS legislation will be weighed against the common law conception of fairness. This will dilute the tone and rigour of the present regulatory positioning.
  5. Courts must look at the business and the reality of what occurred and not be moved by OHS hyperbole about how bad the employer was in determining liability.

At last the cynical, clinical and uncommercial proselytising of the OHS profession has had its wings clipped. The High Court has looked through the OHS window and said, in effect, this has gone too far.

Thank goodness!

*Andrew Douglas, Principal, Douglas LPT

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