High Court constitutional challenge to NSW OHS laws

The High Court of Australia is considering hearing a constitutional challenge to occupational health and safety law in New South Wales. If leave is granted and the challenge is successful, it could call into question the interpretation of these laws, which business and industry have suffered under since they were introduced in 1983.

The OHS laws in NSW are recognised as among the toughest in the world. This is mainly because the NSW Act has been interpreted by the Industrial Court of NSW as putting an absolute duty on employers. There is no practical defence to an accident in a NSW workplace, even when it is caused by the unintentional or inadvertent actions of an employee.

What prompted the challenge?

This legal challenge has come from the criminal conviction of a hobby farmer under OHS law after his highly experienced and long-term farm manager was killed driving an all terrain vehicle (ATV). The ATV overturned when the manager was using the vehicle inappropriately to tow fencing equipment off-road on a steep hillside. The vehicle wasn't designed for towing and there were explicit warnings against it on the vehicle.

The farmer was fined a total of $121 000.

After exhausting the appeal process in the Industrial Court the farmer has brought an application in the High Court questioning the validity of OHS law is NSW. The High Court has reserved its decision so we don’t know what will happen next, but the transcripts of the application for leave show clear concern from some of the High Court judges about the way the law operates.

One of the seven judges on the bench said there was 'a fundamental defect' in previous proceedings before the Industrial Court in the matter that amounted to 'a complete denial of justice' for the farmer.

The same judge commented on the claim by the prosecution that the farmer failed to adequately supervise the manager:

Well, it is ridiculous, is it not? It is totally alien to ordinary life. It is expecting the managing directors ... of large companies which operate all over Australia and all over the world apparently [to] have to supervise the daily activities of the employees.

The farmer's argument on employer's duty

The farmer argued that OHS law* in NSW is impossible to comply with and therefore contrary to the Australian Constitution.

The farmer's main argument is that similar provisions have been constructed by the courts differently in the United Kingdom, South Australia, Victoria and Western Australia. Those jurisdictions uphold the assumption, as does the High Court, that all citizens are entitled to make assumptions about the way people will act—'assumptions that are put aside completely by the Industrial Court in the way it approaches the task.'

The farmer argued that the OHS law taken literally '... simply cannot be complied with. You cannot ensure the health, safety and welfare of employees if that is what is literally required under the statute'. If there isn't a specific duty then the general duty should be judged by what a reasonable employer would do in the circumstances.

For example the farmer's counsel argued:

A master on a ship is absolutely liable if there is some person on that ship when he brings the ship into the country. He has control of that ship. He knows exactly what he has to do.

However, he continued:

To say that you have to ensure against a risk of this inanimate object overturning when some unnamed, unknown, hypothetical employee leaps onto it is in an entirely different category...

Finally

If leave to appeal is granted and the farmer is successful, the result could quash his convictions and sentences. However, the result will also undo a much resented line of authority under occupational health and safety laws and no doubt raise questions about the prosecution policies of WorkCover NSW.

We will update you when the High Court publishes its decision.

*If this case is heard it will be decided under the 1983 Act, however the relevant sections are similar to the current 2000 Act.