Supreme Court New South Wales

• Medium Neutral Citation: Hunter Quarries Pty Ltd v State of New South Wales (Department of Trade & Investment) [2014] NSWSC 1580
• Hearing dates: 24 September 2014, 25 September 2014
• Decision date: 12 November 2014
• Jurisdiction: Common Law
• Before: Schmidt J

Decision

Summons dismissed.

• Catchwords: ADMINISTRATIVE LAW - declaratory relief - proper construction of the Work Health and Safety Act 2011 (NSW) - order sought restraining inspectors appointed under the Mine Health and Safety Act 2004 (NSW) and/or Work Health and Safety (Mines) Act 2013 (NSW) from obtaining information by exercise of powers granted under s 171 of the Work Health and Safety Act - competing constructions of the Work Health and Safety Act - how s 155 and s 171 of the Work Health and Safety Act must be constructed - relevant rules of statutory construction - relief sought not granted - summons dismissed
• Legislation Cited: Evidence Act 1995 (NSW); Work Health and Safety Act 2011 (NSW); Mine Health and Safety Act 2004 (NSW); Work Health and Safety (Mines) Act 2013 (NSW)
• Cases Cited: Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477; Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336; SAS Trustee Corporation v Woollard [2014] NSWCA 75; Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 306 ALR 547; Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156
• Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (7th ed, LexisNexis Butterworths) at [9.21]
• Category: Principal judgment
• Parties: Hunter Quarries Limited (Plaintiff); State of New South Wales (Department of Trade & Investment (Defendant)
• Representation: Counsel: Mr Glissan SC with Mr D Nagle; Mr Lee SC with Ms Wong; Solicitors: McDonald Johnson Lawyers (Plaintiff); I V Knight; Crown Solicitor's Office (Defendant)
• File Number(s): 2014/276078
• Publication restriction: No

Judgment

1 In September 2014 Hunter Quarries sought urgent declaratory relief as to the proper construction of the Work Health and Safety Act 2011 (NSW), as well as an order restraining the Department of Trade and Investment and all inspectors appointed under the Mine Health and Safety Act 2004 (NSW) and/or the Work Health and Safety (Mines) Act 2013 (NSW), from obtaining information by the exercise of the powers granted to inspectors under s 171 of the Work Health and Safety Act.

2 The application arose out of an investigation into the death of Mr Ryan Messenger, one of Hunter Quarries' employees, on 9 September 2014, while he was working at the quarry which it operates at Karuah. That investigation was the result of a notification which it had given that day to the Department under s 38 of the Work Health and Safety Act.

3 The matter was heard on 24 September. On 25 September, I informed the parties that I had concluded that the relief sought could not be granted and ordered that the summons be dismissed. These are the reasons for that conclusion.

The parties' dispute

4 There was no issue that Mr Messenger's death was a "notifiable incident" under s 38 of the Work Health and Safety Act, given the definition in s 35, which includes the death of a person. Section 38(2) requires that notice of the incident be given to the Department, one of the regulators under the Act, "by the fastest possible means". That notice was given. Hunter Quarries was thereupon also obliged to ensure that so far as reasonably practicable, the site where the incident occurred was not disturbed until an inspector arrived (s 39).

5 It was a Departmental Inspector, Inspector Flowers, who attended. A dispute then arose as to his intention to exercise powers granted inspectors under s 171 of the Work Health and Safety Act. That section empowers inspectors who enter a workplace under Subdivision 4, "Specific Powers on Entry", of Division 3, "Powers relating to entry", of Part 9, "Securing compliance", to take specified steps, including requiring persons to tell the inspector, amongst other things, who has custody of or access to documents; to produce such documents; and to answer questions.

6 Discussions ensued, with the result that on 16 September 2014, Hunter Quarries' solicitor, Mr Bryan, advised the inspector by email that it considered that the appropriate course for him to pursue in his investigation was to issue written notices under s 155, "Powers of regulator to obtain information", of Division 1, "Functions of Regulators", of Part 8, "The regulator", of the Work Health and Safety Act.

7 The Inspector disagreed. Despite further representations, the inspector advised Hunter Quarries on 17 September 2014 that he was conducting an investigation into Mr Messenger's death and that he intended to exercise his powers of entry and associated powers under Part 9 of the Act, "in order to determine whether there had been a contravention of the health and safety duties imposed by Part 2 of the Act."

8 Hunter Quarries disputed the inspector's powers to enter its premises and pursue the investigation as he proposed and so it commenced these proceedings.

The competing constructions of the Work Health and Safety Act

9 The construction of the Work Health and Safety Act for which Hunter Quarries contended was, in short, that the powers granted to inspectors under s 171 were of a specific and limited kind and that those powers did not apply to the investigation of possible historical breaches of the Act, or to investigations pursued to determine whether a notifiable incident amounted to an offence under that Act. In the result the inspector was not entitled to exercise the powers granted inspectors under s 171 in his investigation into the incident which had resulted in Mr Messenger's death.

10 On its approach investigations of possible contraventions of the Act could only be conducted under the powers granted to regulators by s 155 of the Work Health and Safety Act.

11 On the Department's approach, an inspector's powers were not so confined. On its construction of the Act, s 155 was concerned with powers which a regulator could exercise. Those powers included powers granted an inspector under s 171 (s 153). Inspectors did not have powers under s 155 to exercise, unless they were delegated to the inspector by a regulator under s 154. Section 171 gave inspectors particular powers, which they were entitled to use whenever entering a workplace, including when investigating an incident notified to the regulator under s 38.

12 In my view the Department's construction of the Work Health and Safety Act was correct and the construction advanced for Hunter Quarries was not. These are the reasons for that conclusion.

How the Work Health and Safety Act must be construed - relevant rules of statutory construction

13 There was no dispute between the parties as to the basic principles which govern the construction of statutes. They were conveniently stated by Bathurst CJ in SAS Trustee Corporation v Woollard [2014] NSWCA 75 at [58]:

"...As was said by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47], the task of statutory construction must begin with the words of the statute itself considered in context, which includes the general purposes and policy of the provisions. Ascertainment of the statutory purpose may be based on an express statement of purpose in the statute, inference from the text and, where appropriate, reference to extrinsic material: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[25], [68] and [88]. As was pointed out by Kiefel J in that case, the starting point is the words in question, read in the context of the statute."

14 In this case, given the limited operation of s 171 for which Hunter Quarries contended, it is relevant to bear in mind the observations of French CJ, Crennan and Bell JJ in Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 306 ALR 547 at [38]:

"

"The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision [Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 ; 55 ALR 175 at 177 ; [1984] HCA 48 per Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ; Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 ; 259 ALR 595 ; 111 ALD 30 ; [2009] HCA 40 at [9] per French CJ and Bell J.]. It is answered against a construction that fills "gaps disclosed in legislation" [Marshall v Watson (1972) 124 CLR 640 at 649 ; [1972] ALR 641 at 646-7 ; [1972] HCA 27 per Stephen J.] or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature"[Western Bank Ltd v Schindler [1977] Ch 1 at 18 ; [1976] 2 All ER 393 at 404 per Scarman LJ cited by Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586 at 592 ; [2000] 2 All ER 109 at 115 (Inco Europe).]."

15 The construction question which here arose also had to be approached in the context that this statutory scheme forms part of a scheme of uniform legislation concerned with furthering safety. In Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156, Gibbs CJ, Mason, Wilson and Dawson JJ observed at 164 that legislation of that character should be construed "so as to give the fullest relief which the fair meaning of its language will allow".

16 Given the penal provisions imposed by the legislation there in question, (the Factories and Shops Act 1960 (Qld)) it was also said at 164 that:

"The modern approach in construing penal statutes was stated by Gibbs J. (as he then was) in Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569, at p 576 as follows:

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams [1935] HCA 62; (1935) 53 CLR 563, at pp 567-568; Craies on Statute Law, 7th ed. (1971), pp 529-534. The rule is perhaps one of last resort"."

17 In Waugh it was said as to conflicts between these two principles of construction at 164 - 165:

"... the Court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v. National Coal Board (1951) AC 639, per Lord Porter at p 650; John Summers & Son Ltd. v. Frost (1955) AC 740, per Viscount Simonds at p 751; McCarthy v. Coldair, Ltd. (1951) 2 TLR 1226, per Denning L.J. at pp 1227-1228. In such a context the strict construction rule is indeed one of last resort."

18 The Work Health and Safety Act is also a statutory scheme which imposes wide duties in relation to ensuring safety, as well as penal provisions for breach of such duties. Specifically, by s 171(6), the Parliament has made it an offence, without reasonable cause, to refuse or fail to comply with an inspector's requirement under s 171. There is also an evidential burden imposed on an accused to show such a reasonable excuse and substantial penalties for those who refuse or fail to comply with the requirement without one: $10,000 in the case of an individual and $50,000 in the case of a corporation. Section 155 makes similar provision.

19 The construction of both s 155 and s 171 must accordingly also be approached in a similar way to that discussed in Waugh.

20 Also to be remembered is that statutes which abrogate the common law right in relation to self-incrimination, as this legislative scheme does in s 172, for example, must also be construed strictly (see the discussion in D C Pearce and R S Geddes, Statutory Interpretation in Australia (7th ed, LexisNexis Butterworths) at [9.21]). It must also be remembered, however, that a corporation has no such right (see s 187 of the Evidence Act 1995 (NSW) and Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477).

21 Finally, in construing legislation it is necessary to consider the practical consequences of giving a particular meaning to an Act (see Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336).

Sections 155 and 171 in their statutory context

22 The starting point for the proper construction of s 155 and s 171 is thus the words of the two provisions, considered in their context, which includes the general purposes and policy of the provisions themselves. Their construction must also be approached in light of the statutory purpose of the Work Health and Safety Act itself. In this Act, that is expressly disclosed in s 3, which provides:

"3 Object

(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:

(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

(b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and

(c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and

(d) promoting the provision of advice, information, education and training in relation to work health and safety, and

(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and

(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and

(g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and

(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

(2) In furthering subsection (1) (a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable."

23 In construing s 155 and s 171, it is the particular objects specified in s 3(a) and s 3(e) to which attention must be paid.

24 Section 155 appears in Part 8 "The regulator". It gives regulators wide powers to obtain information, in specified circumstances. It provides:

"155 Powers of regulator to obtain information

(1) This section applies if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Act or that will assist the regulator to monitor or enforce compliance with this Act.

(2) The regulator may, by written notice served on the person, require the person to do one or more of the following:

(a) to give the regulator, in writing signed by the person (or in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, that information of which the person has knowledge,

(b) to produce to the regulator, in accordance with the notice, those documents,

(c) to appear before a person appointed by the regulator on a day, and at a time and place, specified in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents.

(3) The notice must:

(a) state that the requirement is made under this section, and

(b) contain a statement to the effect that a failure to comply with a requirement is an offence, and

(c) if the notice requires the person to provide information or documents or answer questions:

(i) contain a statement about the effect of sections 172 and 269, and

(ii) state that the person may attend with a legal practitioner.

(4) The regulator must not make a requirement under subsection (2) (c) unless the regulator has taken all reasonable steps to obtain the information under subsections (2) (a) and (b) and has been unable to do so.

(5) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.

Maximum penalty:

(a) in the case of an individual-$10,000, or

(b) in the case of a body corporate-$50,000.

(6) Subsection (5) places an evidential burden on the accused to show a reasonable excuse.

(7) Section 172 (with any necessary changes) applies to a requirement under this section."

25 In construing this section, therefore, it may not be overlooked that it is concerned with the service of written notices requiring that certain steps be taken, where the regulator "has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of the Act". That power has to be understood in the context of the functions granted to regulators by s 152, to which it will be necessary to return. Those functions do not include investigation of contraventions. They are specified to be:

"152 Functions of regulator

...

(a) to advise and make recommendations to the Minister and report on the operation and effectiveness of this Act,

(b) to monitor and enforce compliance with this Act,

(c) to provide advice and information on work health and safety to duty holders under this Act and to the community,

(d) to collect, analyse and publish statistics relating to work health and safety,

(e) to foster a co-operative, consultative relationship between duty holders and the persons to whom they owe duties and their representatives in relation to work health and safety matters,

(f) to promote and support education and training on matters relating to work health and safety,

(g) to engage in, promote and co-ordinate the sharing of information to achieve the object of this Act, including the sharing of information with a corresponding regulator,

(h) to conduct and defend proceedings under this Act before a court or tribunal,

(i) any other function conferred on the regulator by this Act."

26 The powers given by s 155 are clearly relevant for the exercise of the functions specified in s 152(b), namely the regulator monitoring and enforcing compliance with the Act and in s 152(h), conducting proceedings under the Act.

27 By way of contrast, s 171 appears in Part 9 "Securing compliance". It grants powers which inspectors may exercise when entering a workplace under Division 3 "Powers relating to entry". Those powers of entry are provided in s 163 and s 165. Section 171 provides:

"171 Power to require production of documents and answers to questions

(1) An inspector who enters a workplace under this Division may:

(a) require a person to tell the inspector who has custody of, or access to, a document, or

(b) require a person who has custody of, or access to, a document to produce that document to the inspector while the inspector is at that workplace or within a specified period, or

(c) require a person at the workplace to answer any questions put by the inspector.

(2) A requirement under subsection (1) (b) must be made by written notice unless the circumstances require the inspector to have immediate access to the document.

(3) An interview conducted by an inspector under subsection (1) (c) must be conducted in private if:

(a) the inspector considers it appropriate, or

(b) the person being interviewed so requests.

(4) Subsection (3) does not limit the operation of section 166 or prevent a representative of the person being interviewed from being present at the interview.

(5) Subsection (3) may be invoked during an interview by:

(a) the inspector, or

(b) the person being interviewed,

in which case the subsection applies to the remainder of the interview.

(6) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.

Maximum penalty:

(a) in the case of an individual-$10,000, or

(b) in the case of a body corporate-$50,000.

Note. See sections 172 and 173 in relation to self-incrimination and section 269 in relation to legal professional privilege.

(7) Subsection (6) places an evidential burden on the accused to show a reasonable excuse."

28 Unlike s 155, s 171 is not expressly confined to circumstances where an inspector suspects a contravention has occurred. Instead, the powers are available to be exercised by inspectors who enter workplaces, exercising powers granted them by Division 3 "Powers relating to entry" of Part 9 "Securing Compliance", along with other powers there provided. It will be necessary to return to those powers, but the absence of that limitation reflects that inspectors' functions include not only ensuring compliance, but also investigating contraventions and prosecuting offences (s 160).

29 The powers granted regulators in s 151 and inspectors in s 171 must also be considered in the context of the statutory scheme, as a whole.

30 This is a statutory scheme which, consistently with the statutory purposes specified in s 3, imposes onerous duties upon a wide class of persons, including employers; those conducting businesses or undertakings of various kinds; and officers, workers and other persons at workplaces, to ensure health and safety. Those duties appear in Part 2 "Health and safety duties". Principles that apply to such duties are specified in Subdivision 1 of Division 1 of that Part. Importantly for understanding the duties imposed by this statutory scheme, s 17 there provides:

"17 Management of risks

A duty imposed on a person to ensure health and safety requires the person:

(a) to eliminate risks to health and safety, so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable."

31 What is reasonably practicable is dealt with in s 18.

32 The primary duty of care imposed on persons conducting businesses or undertakings for workers engaged in the business and others, is specified in s 19(2) to be "that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking". That obligation is explained by further provisions made in s 19(3) and (4). There are further duties imposed on those who conduct businesses or undertakings in Division 3 "Further duties of persons conducting businesses or undertakings" of Part 2 "Health and Safety Duties". Other duties are imposed on officers, workers and other persons in Division 4 of that Part.

33 Division 5 of that Part creates various offences for failure to comply with these duties, in three categories of seriousness (see s 31, s 32 and s 33). Various exceptions are specified in s 34. There are also a wide range of other offences created in other parts of the Act, for breaches of other obligations imposed elsewhere in this legislative scheme, including by s 155 and s 171.

34 Part 3 "Incident notification", imposes wide-ranging obligations on those who are required to notify the relevant regulator, either the WorkCover Authority or the head of the defendant Department, of "notifiable incidents" (s 38). They are defined in s 35 to mean death, serious illness or injury or a "dangerous incident". "Serious injury or illness" is defined in very wide terms in s 36, to include an injury or illness which requires immediate treatment in hospital, treatment for specified injuries and medical treatment within 48 hours of exposure to a substance.

35 A "dangerous incident" is defined in s 37 to mean "an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person's health or safety emanating from an immediate or imminent exposure to" a wide range of specified events. They include things like, uncontrolled spillages and leaks; uncontrolled explosions, fires, or escape of gas and steam; electric shocks; falls from height of any plant, substance or thing; collapse or failure or malfunctions of plant; any collapses of structures, excavations and shoring; inrush of water, mud or gas underground; and interruption of underground ventilation, as well as other events prescribed by regulation.

36 Part 5 "Consultation, representation and participation" establishes a regime which obliges various duty holders to consult with each other in relation, for example, "to work health or safety" (s 47). Detailed regulation is there made as to how such consultation is to occur; how safety committees required to be established are to operate; and how health and safety issues which rise are to be resolved.

37 Part 6 "Discriminatory, coercive and misleading conduct", prohibits identified discriminatory conduct being pursued for prohibited reasons. Such conduct is extensively defined in s 106 to capture various aspects of this legislative scheme. It includes matters such as raising an issue or concern about work health and safety with identified persons, including inspectors. This part of the Act, like others, also creates a variety of statutory offences.

38 Part 7 "Workplace entry by WHS entry permit holders", grants certain union officials rights of entry to workplaces, in order to inquire into suspected contraventions of the Act, in relation to a relevant worker.

39 Part 8 "The regulator" deals with the powers and functions of the regulators and those to whom they may be delegated, including inspectors (s 154). By s 155 the regulator is given wide powers to obtain information. Its functions are specified in s 152 and its powers in s 153 and s 155. There is a power of delegation provided by s 154.

40 Appointment of inspectors is dealt with in Part 9 "Securing compliance". Their functions and powers are dealt with in Division 2 "Functions and powers of inspectors". Inspectors' powers of entry are dealt with in Division 3. Inspectors may seek search warrants (see s 167). Section 171 appears in Subdivision 4 "Specific powers on entry", which also gives powers of seizure (see s 175 - s 181). Section 172, which abrogates a person's privilege against self-incrimination, also appears in that subdivision. Its provisions also apply to the provision of information to the regulator under s 155.

41 Part 10 deals with enforcement measures, including by inspectors, who may give notices requiring improvement (s 191) and may prohibit activities which involve, for example, "a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard" at a workplace (s 195). Inspectors may also issue non-disturbance notices (s 198). Regulators may require remedial action, including when a person has failed to comply with a notice (s 211).

42 Part 11 "Enforceable undertakings" deals with circumstances where a regulator may accept a written undertaking (a WHS undertaking) given by a person in connection with a contravention or alleged contravention of the Act.

43 Part 12 establishes mechanisms for both internal and external review of decisions made by regulators. Part 13 deals with legal proceedings. It deals with prosecutions for offences under the Act, which may be brought by the regulator, or by inspectors who may be authorised to bring proceedings generally or in a particular case or by the secretary of industrial organisations in certain cases (see s 230). Sentencing and penalty notices are also dealt with in this Part.

44 Part 14 "General", Division 1 "General provisions" deals with various matters, including legal professional privilege, codes of practice and regulation making powers.

Hunter Quarries' construction does not accord with the statutory scheme

45 On its case, once an inspector who has responded to a s 38 notice of a notifiable incident exercises powers of entry in order to investigate that incident, it is the powers granted the regulator under s 155 which must be exercised by the inspector, not the powers granted to inspectors by s 171. That was, it was explained, because the statutory scheme required that the powers granted by s 171, appearing as they do in Part 9 "Securing Compliance of the Act", be exercised only in relation to compliance matters and not to the investigation of possible contraventions of the Act. On its approach, investigations of contraventions may only be pursued by exercise of the powers granted in Part 8 of the Act. When seeking information as to such possible contraventions, inspectors had to approach their investigations in accordance with the provisions of s 155.

46 That construction could not be accepted because it did not pay sufficient regard either to the general purpose and policies of sections 171 and 155, or indeed, to the purpose of the legislative scheme itself, concerned as it is with ensuring safety of workers and others. Nor did it pay sufficient regard to relevant differences between the two sections themselves.

47 Unquestionably the construction for which Hunter Quarries contended would restrict an inspector who has responded to a notification to the regulator under s 38, from accessing information or documents which might evidence the commission of an offence. That was important to consider, given the extensive penal sanctions imposed by this legislative scheme. Such a restriction does not, however, accord with the fair meaning of the words used in the two sections, or with what the Parliament intended by the words which it used and would result in workers and others being deprived of protections which they were intended to have. Consistently with Waugh, in the result, that construction cannot be adopted.

The statutory provisions are not ambiguous

48 It must be considered that the language of neither s 155 nor s 171 is ambiguous. The limitations on the s 171 powers for which Hunter Quarries contended do not appear there either expressly, or by way of necessary implication, in either that section or in s 155, which is concerned not with the powers of inspectors, but with those of regulators, as I have explained.

49 Of itself that does not, of necessity, compel the rejection of the construction for which Hunter Quarries contended. The consequences of its adoption reveals that the achievement of the statutory purposes of protecting workers and other from harm to their health and safety by elimination or minimisation of risks and of securing compliance would, however, thereby be significantly impeded. That is a powerful reason for not embracing the construction which it urged, notwithstanding the penal provision made in s 171.

50 To imply the considerable limitations for which Hunter Quarries contended would undermine the effective operation of the Act, as I will explain. Such an implication would in my view be "too big, or too much at variance with the language in fact used by the legislature" as discussed in Taylor v The Owners - Strata Plan No 11564 at [38]).

Regulators do not have investigative functions, except when exercising the functions of an inspector

51 It may not be overlooked that the statutory purpose of ensuring that workers and other persons are protected against harm to their health, safety and welfare through the practical elimination or minimisation of risks is sought to be achieved, in part, by the swift exercise of the powers granted to inspectors upon entry. Powers available to be exercised whenever their power of entry is exercised, including after notification of an incident. That helps ensure both that compliance with the duties imposed by the Act is secured; if contraventions are occurring, bringing them to an end; and ensuring that prosecutions of offences can be effectively pursued.

52 The Act requires persons who conduct a business or undertaking to notify regulators of incidents which cause death or serious injury "by the fastest possible means" (s 38(2)). This reflects that the Act contemplates that there will then be a speedy investigation conducted by an inspector appointed by the regulator, whose functions include investigating both compliance and contraventions of the Act, as well as assisting in the prosecution of offences (s 160). It thus imposes a duty on persons "with management or control of a workplace at which a notifiable incident has occurred", to ensure that the site where the incident occurred "is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs" (s 39). Substantial penalties are also imposed for failing to comply with these obligations.

53 The Act thus contemplates that it is inspectors who will pursue investigations into compliance with and contravention of, the obligations imposed by the Act, including after regulators are given notifications of incidents under s 38. It is not regulators who will ordinarily pursue such investigations. That is why, if such a notification is given, workplaces must be secured by those who operate them, until an inspector attends and exercises the statutory power of entry they are given (s 39).

54 Thus it is inspectors, dealt with in Part 9, who are expressly granted an investigative function in s 160 into contraventions, as well as requiring compliance and assisting in prosecutions. It is they who are there given wide-ranging powers of entry and other practical powers available then to be exercised, which are designed to make the pursuit of their investigations effective upon such entry, consistently with the statutory purposes specified in s 3(a) and s 3(e). That includes the powers granted by s 171.

55 It is Part 8 of the Act which deals with the regulator, its functions (s 152) and powers, including the exercise of s 171 powers (s 153). There is a power of delegation of these powers and functions to certain employees and inspectors (s 154).

56 Section 155(1) grants the regulator wide powers, the exercise of which must, however, be understood in the context of the functions it is granted in s 152. They do not include an investigative function. Section 153(1), which grants the regulator "the power to do all things necessary or convenient to be done for or in connection with the performance of its functions" and the provision made in s 153(2), that the regulator also has all the powers and functions that an inspector has under the Act, (that is including those provided by s 171), must also be understood in that context. That reflects that the powers and functions of inspectors are different to those of regulators.

Sections 155 and 171 are directed at different circumstances

57 It is apparent from this statutory scheme that while both s 155 and s 171 create offences, in the event that persons fail without reasonable excuse to comply with requirements imposed as the result of the exercise of the powers granted by the respective sections, the two sections are designed to operate quite differently. That reflects that the powers granted by the two sections are likely to arise to be exercised at quite different times and in different circumstances.

58 Section 155 is not concerned with the powers which inspectors may exercise on entry at a workplace. Rather, it makes express provision for the circumstances in which a regulator may serve written notices requiring persons to produce certain information and documents, or to appear to give evidence. That is, in circumstances where the regulator:

"... has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Act or that will assist the regulator to monitor or enforce compliance with this Act."

59 Section 155 presupposes that the regulator already has information on which the required opinion could be formed. The obvious source of such information is an inspector who has exercised s 171 powers.

60 An inspector's exercise of s 171 powers does not depend on the inspector forming any such opinion. The only limitation on the exercise of those powers is that they be exercised on entry at a workplace. Section 155 imposes no such condition.

61 It follows that it is plainly the pursuit of an inspector's investigations upon attendance and entry at a workplace, including by exercise of their s 171 powers and the resulting production of documents and information to inspectors by those at the site, in accordance with the obligations there imposed upon them, which may result in a regulator later being able to form the opinions on which its exercise of the powers granted by s 155 depend. Without such an investigation a regulator would only have whatever might be contained in a notification it receives, on which to form an opinion which the statute requires must be based on "reasonable grounds". What is provided in a particular notification may by itself be an insufficient basis for such an opinion to be formed, without entry and investigation by an inspector.

62 That is one practical difficulty with the construction urged by Hunter Quarries, which tells strongly against its adoption. There are others.

Section 171 does not depend on written notice being given

63 It must also not be overlooked that s 171 does not depend on written notice being given by an inspector of his or her requirements, in the way required of regulators by s 155. Only in the case of production of a document is written notice contemplated in s 171. Even then such notice is not required to be given, if an inspector requires immediate access to the document.

64 That difference reflects that s 171 is concerned with powers which are to be exercised by inspectors on entry at a workplace, at a time when an investigation is being pursued, in potentially urgent situations. That is not what s 155 is concerned with. It is concerned with the exercise of powers after information has already been obtained, upon which the required opinion can be formed.

Inspectors can only exercise s 155 powers on delegation

65 Also necessary to be considered is that a regulator's powers can be delegated to an inspector under s 154, but unless delegated they are not powers which an inspector ordinarily has (other than the powers granted to inspectors under s 171, which by s 153, a regulator may also exercise). The converse is not provided for. An inspector's exercise of s 155 powers depends on the regulator's prior written delegation.

66 Accordingly, unless the regulator delegates its s 155 powers to an inspector, the powers which the inspector has to exercise when pursuing an investigation into a notifiable incident, or otherwise, are not those provided by s 155, contrary to Hunter Quarries' case.

67 In this case, the actual delegations made by the regulator (relevantly defined in this case in s 3 to be the 'the head of the Department of Trade and Investment, Regional Infrastructure and Services') were provided without objection after the hearing. They include a delegation of the s 155 function to inspectors.

68 It follows that as a matter of fact, Inspector Flowers did have s 155 powers to exercise. That did not mean, however, that the investigative function which the Act gives inspectors and which may be exercised on entry after notification of a notifiable incident, did not exist or was not then available to be exercised by Inspector Flowers.

Hunter Quarries construction would impede effective operation of the legislative scheme

69 The construction for which Hunter Quarries contended would unarguably impede the effective operation of this legislative scheme, in a number of ways not there contemplated.

70 So far as inspectors are concerned, the distinction on which Hunter Quarries' construction of the Act depended, that is between investigations into compliance on the one hand and contravention on the other, when a power of entry is exercised, is artificial and not one which is embraced by this legislative scheme. To adopt it would give rise not only to potentially difficult questions for inspectors, as to when a question of compliance had become one of possible or actual contravention, but it would unnecessarily limit an inspector's powers on lawful entry at a workplace, in ways not expressly contemplated by the Act.

71 That result would be directly inconsistent with what is contemplated by other provisions of the Act, the power of seizure available to be exercised by inspectors on entry under s 175, for example. It provides:

"175 Power to seize evidence etc

(1) An inspector who enters a workplace under this Part may:

(a) seize anything (including a document) at the place if the inspector reasonably believes the thing is evidence of an offence against this Act, or

(b) take and remove for analysis, testing or examination a sample of any substance or thing without paying for it.

(2) An inspector who enters a place with a search warrant may seize the evidence for which the warrant was issued.

(3) An inspector may also seize anything else at the place if the inspector reasonably believes:

(a) the thing is evidence of an offence against this Act, and

(b) the seizure is necessary to prevent the thing being hidden, lost or destroyed or used to continue or repeat the offence."

72 The exercise of this power of seizure on entry is also not limited to a point in time when a regulator has a basis for forming the opinion provided in s 155. It would be curious that an inspector could on entry exercise powers of seizure of evidence of an offence under s 175, but could not at the same time exercise the powers granted by s 171.

73 The two sections appear in the same subdivision, Subdivision 4, "Specific powers on entry", which appears in Division 3 "Powers relating to entry" of Part 9 "Securing compliance". Despite the name of the Part, it is apparent from the provisions made in this Part that it is generally not concerned only with an inspector's involvement in compliance matters, nor is s 171.

74 To the contrary, it is apparent that it is intended that documents which an Inspector is entitled to require to be produced under s 171, may then be seized as evidence, in accordance with s 175.

75 This conclusion is reinforced by the provision made in s 172, which expressly abrogates an individual's rights to silence. It provides:

"172 Abrogation of privilege against self-incrimination

(1) A person is not excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.

(2) However, the answer to a question or information or a document provided by an individual is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document."

76 Section 155(4) extends this abrogation to requirements made by the regulator under s 155. The abrogation provided for by s 172 plainly contemplates, however, that what the inspector is then pursuing after entry, through exercise of the s 171 powers, is not confined to compliance matters, but extends to contravention and the pursuit of evidence of an offence.

77 Hunter Quarries' approach to the construction of the Act, if correct, would also potentially preclude an inspector from obtaining information which may assist the inspector identifying and then dealing with a continuing risk to safety, which the statutory scheme contemplates inspectors will deal with on entry. That would be a result directly contrary to the statutory purpose provided in s 3.

78 The statutory scheme expressly contemplates that notifiable incidents will be swiftly investigated by inspectors who are armed with wide powers to investigate the causes of the incident and to deal with their consequences, including by exercise of the s 171 powers, ensuring that there is compliance with the duties imposed by the Act and that prosecutions follow, when contraventions have occurred.

79 That is why inspectors are given wide rights of entry, which may be exercised when responding to notifications given to regulators. Once those rights have been exercised, inspectors are empowered to deal immediately with the causes of an incident, as well as any compliance issues then identified, especially if they pose continuing risks to safety. Inspectors are also entitled to investigate whether what was notified involved breaches of the duties imposed by the Act and to deal with those breaches, particularly if they need to be remedied because they pose continuing risks to safety. They may also then seize things which may evidence the commission of an offence.

80 That explains why the dichotomy Hunter Quarries sought to draw between compliance and contravention, which the legislative scheme does not itself draw, cannot be embraced.

81 An inspector who enters a workplace exercising powers of entry under s 163, whether that occurs after an incident or not, may then exercise the powers granted by s 165(1). They include powers of inspection, examination and making inquiries. Upon exercising those powers, the inspector may suspect not only that the incident notified was the result of an offence that is a contravention of the duties imposed by the Act, but that there are also continuing risks to safety. In such a case the inspector will then be faced with a situation where both issues of compliance and contravention have to be investigated and dealt with.

82 At that point, the inspector may decide to require the provision of information or documents, utilising the powers given by s 171, in order to determine what has to be done, to ensure that the duties imposed by the Act are complied with. That may be necessary, for example, so that the inspector can decide whether a notice under s 160(d) requiring compliance with the Act, should be issued; whether an improvement notice under s 191 in respect of a suspected contravention of the Act, which the inspector considers is likely to continue or be repeated, should be issued; whether a prohibition notice under s 195 should be issued in relation to, for example, an activity which is occurring at the workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard; or whether to issue a non-disturbance notice under s 198, in order to facilitate the exercise of the inspector's compliance powers.

83 The exercise of such powers cannot neatly be segregated between circumstances in which the inspector is dealing with compliance, as opposed to possible past or ongoing contravention of the duties imposed by the Act.

84 To the contrary, it would be artificial and impractical to impose on an inspector, who may be called on to deal with urgent and serious situations involving both compliance and contravention issues, the need to delineate between the two.

85 Limiting the exercise of the s 171 powers to compliance issues, with the result that the inspector would be permitted only to require access to be given immediately to documents and questions to be answered by persons at the workplace in relation to compliance matters, but not if they shed light on possible contraventions or evidence an offence which might later be prosecuted, would unnecessarily complicate the inspector's important statutory functions and make this aspect of the statutory scheme, designed as it is to ensure health and safety, potentially unworkable.

86 These consequences do not arise if the limitation for which Hunter Quarries contended is not read into s 171, thus avoiding consequences which appear irrational and unjust, given the purpose of this statutory scheme. It follows that in accordance with the approach discussed in Waugh at [15] - [17], a construction which favours ensuring safety, must be preferred.

Conclusion: how inspectors' powers are to be exercised

87 In the result it must be concluded that inspectors who, under s 163 may at any time enter into "a place that is, or that the inspector reasonably suspects is, a workplace", with or without "the consent of the person with management or control of the workplace", may thereupon exercise the powers granted by s 171. That includes a time when the inspector enters in order to pursue an investigation into an incident notified under s 38, a time at which the site ought have been preserved, as s 39 requires.

88 Upon such entry an inspector may exercise the various powers granted by Division 3, including the general powers of inspection, examination and inquiry granted by s 165(1)(a) and "any compliance power or other power that is reasonably necessary for the purposes of the Act specified in s 3" (s 165(1)(g)). The Inspector may then also require persons at the workplace to provide him with reasonable help (s 165(f)) and may exercise the other specific powers granted in Subdivision 2 "Search warrants" and Subdivision 4 "Specific powers of entry". The latter includes powers as to the production of documents and the provision of answers to questions (s 171), with a resulting abrogation of the privilege against self-incrimination (s 172); as well as powers to copy and retain documents (s 174); to seize evidence (s 175); and to seize dangerous workplaces and things found there, which the inspector reasonably believes 'is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident to occur' (s 176).

89 On the proper construction of this Act, once an inspector has so exercised the statutory power of entry at a workplace, he or she is empowered by s 171 to require a person to tell him or her who has custody of or access to a document; to require that person to produce that document, while the inspector is still at the workplace, or later; and to require a person at the workplace to answer the questions which the inspector puts. That power is not displaced, limited or circumscribed by the powers granted to regulators by s 155 of the Act.

90 An inspector may only exercise the powers granted by s 155 if they are delegated by the regulator by instrument in writing under s 154. Exercise of those powers is not limited to entry at a workplace, but depends upon the inspector first forming the opinion on which the exercise of the s 155 powers depend.

91 It was for these reasons that the relief sought could not be granted and the summons was dismissed.

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Amendments

25 November 2014 - See Hunter Quarries Pty Ltd v State of New South Wales (Department of Trade & Investment) (No 2) [2014] NSWSC 1663
Amended paragraphs: [67], [68] and [4]

Decision last updated: 25 November 2014