In a landmark decision that will affect future occupational health and safety prosecutions in New South Wales and Queensland, the Full Court of the High Court of Australia unanimously quashed a decision by the New South Wales Industrial Relations Commission to convict an employer of OHS offences where the charges did not identify the acts or omissions by the employer that constituted those offences.

The Kirk decision, handed down on 3 February, is a turning point for occupational health and safety prosecutions in New South Wales and Queensland, where employers have an absolute duty to ensure the health, safety and welfare of their employees at work. Under current legislation in those States, prosecutions for safety incidents have been very difficult to defend. Typically, prosecutors were able to establish the employer’s criminal liability simply because the accident occurred. The Kirk decision means courts will require a more robust examination of how, in real terms, particular acts or omissions by the employer led to a breach of the duty to ensure the health and safety of employees.

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