- On 28 March 2001, Graham Palmer, an employee of Kirk Group Holdings Pty Ltd was killed while working as a farm manager on a farm owned by Graeme Kirk (Kirk).
- Mr Kirk and the company were convicted in the Industrial Court of NSW under the Occupational Health and Safety Act 1983 (NSW) (the Act).
- Kirk was not told what he was charged with.
- The Act contained a privative clause providing that a decision of the Industrial Court is “final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal”.
Was the Industrial Court’s decision was affected by jurisdictional error?
If so, did the privative clause operate to prevent the Court of Appeal from issuing relief by way of certiorari?
- The High Court held that a prosecutor prosecuting offences under the Act to identify within the charge laid the measures which the employer did not take, despite the privative clause of the Act.
- Privative clauses can be beneficial where they promote finality, but not where they clash with the Constitution.
- Section 71 of the Constitution is part of an appellate structure, of which the High Court sits at the top, the Australian legal system is whole and it must be internally coherent.
- The State Supreme Courts must fit in to the Commonwealth Constitutional model.
- If they do not, this will create islands of power which are not subject to judicial supervision.
- Only where privative clauses exclude jurisdictional error will they be ineffective.
The full text is available here: https://www.jade.world/cases/2010HCA1
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