Legal commentary following this month's 'Kirk' High Court decision now confirms the scale of the ruling's significance for both New South Wales and Australia.

At its core, the decision knocked out the New South Wales work safety laws as they have previously been applied. Further, it now almost guarantees full implementation of the national harmonised OHS laws. The wider flow-on effect is to undermine the class warfare posturing that has defined political contest in Australia for more than a century.

On the OHS front, the High Court has kicked in the teeth the NSW WorkCover Authority, the NSW Industrial Relations Commission and the NSW government for creating and imposing an 'oppressive' regime of OHS criminal law that stripped people of basic human rights.

In doing this, the High Court has warned all Australian tribunals and quasi-courts against thinking they can turn themselves into unappealable fiefdoms of power. The High Court has not created new law, but rather has enforced rights guaranteed under the Australian constitution.

These include the principle that prosecutors must prove an accused person's guilt and that convicted persons must be able to appeal decisions.

Graeme Kirk, the part-time farmer who was convicted in NSW, had his conviction quashed. In this radio interview Kirk explains how he only found judicial common sense and justice once he went to the High Court.

In reaching the Kirk decision the High Court said there is a line of judicial authority guaranteed under the constitution. This ensures that every person has a right to have decisions against them reviewed by superior courts. That is, through the Supreme Courts in the states and the Federal Court at the Commonwealth level, and ultimately to the High Court.

The High Court said that any government or tribunal/quasi-court that thinks it can create statute or legal argument that can prevent review of decisions (as in NSW) is wrong and has misinterpreted the law of Australia under the constitution.

On the prosecution process, the High Court was scathing of the NSW IRC and the prosecutor (NSW WorkCover Authority). Both those bodies chose to assume Kirk's guilt by virtue of the fact that Kirk's farm manager and close friend died on his farm.

All seven High Court judges heard the case (over three days) and all agreed that, because the constitution enshrines the principles of natural justice, a prosecutor is required to demonstrate guilt of an accused by showing what a reasonable person could have practically done to prevent the alleged criminal occurrence.

In Kirk's case the High Court found that he could not have reasonably or practically done anything to prevent his friend's death. Further, the NSW WorkCover authority did not even attempt to present evidence for conviction and the NSW IRC did not demand this of the prosecutor.

This is why one High Court judge (Justice Heydon) said, "... the actual hearing [NSW IRC] was not conducted within jurisdiction or according to law... " and "... the trial judge proceeded on an erroneous construction of the legislation." He said "... the cumulative effect on the appellants is oppressive" and that the NSW Workcover Authority should "... finish its sport with Mr Kirk".

One of the best summaries of the case is from Kirk's legal team.

The flow-on implications from the High Court decision are significant. Already in NSW, business and unions agree that the approach of the WorkCover Authority must change for current and future prosecutions.

But past injustices perpetrated by these NSW institutions also need to be fixed. Rockdale Beef from the Riverina district of NSW is demanding a refund of $200,000 in fines and that NSW WorkCover stop their efforts to extract $320,000 in costs from them.

Rockdale's story has parallels to Kirk's. A truck drove onto Rockdale's property and the truck driver injured himself when he fell from his truck. Rockdale was convicted because the driver fell onto Rockdale's land.

There are many other blameless but convicted persons in NSW. But correcting state institutionally imposed injustice is expensive. It cost Graeme Kirk $1.3 million of his retirement savings. Even with his win, he's only going to recover some of his costs.

Presumably the NSW state government will dodge reimbursing Kirk the remainder of what he's spent. Most likely he'll be subjected to protracted costs negotiations.

All of which leads us to the wider political issues.

NSW's problems result from a particularly ugly, tribal-like culture within the broad Labor movement in NSW.

The 'movement' holds to a view that employers by their legal nature will exploit workers. Further, to control employers, state institutions must oppress and inject fear into employers. In government they have translated this culture into legislative form and into administrative practice covering many areas of state governance. The Kirk NSW OHS laws are a prime example.

Even worse, while there may be good reasons for apparent inconsistencies in the behaviour of statutory authorities, to many outside observers the law appears to be applied selectively. For example, in the first major OHS prosecution under the NSW laws (the Gretley case), United Mining Support Services (UMSS), a labour hire company which employed three miners who died in an underground coal mining disaster, was not prosecuted.

At the time of the accident UMSS was majority owned by a trade union, the CFMEU.

Let me stress again, that there may be good reasons why the company was not prosecuted, but if there are, the New South Wales government has not revealed what they are. In the absence of an explanation, it is easy to see why the business community would assume that if your company is 'inside' the Labor 'tribe' you will be safe from state funded institutional oppression.

The Kirk High Court decision draws the line in the sand. Political movements can have views and cultures. But when they control governments they cannot allow that culture to over-ride the basis of the rule of law under which everyone is deemed to have equal rights. This restriction must apply whether the political movement is Labor, conservative, green or whatever.

The Australian political process is on notice from the High Court. The constitution enshrines rights for all Australians that over-ride political tribalism. Class consciousness as the basis for law is unconstitutional.