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QUBE Ports Pty Ltd v Chief Executive Department of Justice and Attorney-General

 

[2012] QCA 285

Reported at [2013] 2 Qd R 260

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Application for Leave/Judicial Review

ORIGINATING COURT:

DELIVERED ON:

23 October 2012

DELIVERED AT:

Brisbane 

HEARING DATE:

18 July 2012

JUDGES:

Muir and Gotterson JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. The applicant have leave to appeal from the order made 18 January 2012.
  2. The appeal be allowed.
  3. The order made 18 January 2012 be set aside.
  4. The decision of the second respondent made on 22 December 2010 not to accept an enforceable undertaking by the appellant pursuant to Part 5 of the Workplace Health and Safety Act 1995 in respect of an incident on 26 May 2009 involving an employee of the appellant, Mr Francis Morgan Ryan, be quashed.
  5. The matter of acceptance of the enforceable undertaking so proposed by the appellant be referred to the first respondent for decision according to law, consistently with these reasons.
  6. The respondent pay the appellant’s costs of the application and of the appeal to be assessed on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – MEANING OF DECISION – GENERALLY – whether the learned judge erred by characterising the decision not to accept the enforceable undertaking as a decision by a prosecutor to prosecute, or a decision by a prosecutor to prosecute, so as not to attract judicial review

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – RIGHTS AND INTERESTS AFFECTED BY DECISION – whether the learned judge erred in finding that the circumstances of two fatalities involving employees of the appellant in 2010 were relevant to the decision – whether the learned judge erred in concluding that a decision under s 42E(1) does not attract the rules of natural justice – whether the learned judge erred in failing to find that the appellant was denied natural justice by not being given notice of the inclusion of the two fatalities

Judicial Review Act 1991 (Qld), s 48(5)

Workplace Health and Safety Act 1995 (Qld)

Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, cited

Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35, cited

Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48, applied

Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49, cited

Commissioner of Police v Tanos (1958) 98 CLR 383; [1958] HCA 6, cited

Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; [1998] HCA 45, cited

Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40, cited

Gelzinis v T & R (Murray Bridge) Pty Ltd (2009) 103 SASR 194; [2009] SASC 61, considered

Gouriet v Union of Post Office Workers [1978] AC 435; [1977] UKHL 5, cited

Kioa v West (1985) 159 CLR 550; [1985] HCA 81, cited

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, cited

Oates v Williams (1998) 84 FCR 348; [1998] FCA 775, cited

Patrick Stevedores Holdings Pty Ltd v DPP [2012] VSC 31, cited

R v Secretary of State for Home Department; Ex parte Pierson [1998] AC 539; [1997] UKHL 37, cited

S10/2011 The Minister for Immigration and Citizenship [2012] HCA 31, cited

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23, cited

Salemi v MacKellar [No 2] (1977) 137 CLR 396; [1977] HCA 26, cited

COUNSEL:

B Walker SC, with B Shields, for the applicant/appellant

P J Davis SC, with A D Scott, for the respondents

SOLICITORS:

Norton Rose Australia for the applicant/appellant

Crown Law for the respondents

[1] MUIR JA: I agree with the reasons of Gotterson JA and the orders he proposes.

[2] GOTTERSON JA:  QUBE Ports Pty Ltd was until recently known as P&O Automotive & General Stevedoring Pty Ltd.  At the hearing of the appeal leave was given to amend the proceedings to reflect the company’s change of name.  In these reasons that company is referred to as the appellant. 

[3] The appellant applies for leave pursuant to s 48(5) of the Judicial Review Act 1991 (“JR Act”) to appeal against an order made under s 48(1)(a) of that Act on 18 January 2012.  By that order, an application for a statutory order of review commenced by the appellant on 27 January 2011 was dismissed.

[4] The application for leave to appeal was filed on 15 February 2012.  The named first respondent to the application, who is also the proposed first respondent to the appeal, is the Chief Executive, Department of Justice and Attorney-General.  The named second respondent for both the application and the appeal is Barry Leahy, Associate Director-General, Department of Justice and Attorney-General.

[5] Material filed with the application includes a proposed Notice of Appeal[1] which sets out four proposed grounds of appeal and the orders to be sought by the appellant on appeal.  The proposed grounds of appeal contend that the learned Judge who made the order dismissing the application erred in a number of respects.  The appellant relies on those errors and the general importance of the legal questions they raise as warranting a grant of leave.  In written submissions filed prior to the hearing of the appeal and at the hearing itself, the parties presented their respective substantive arguments as if leave to appeal had been granted. 

[6] The appellant’s application sought judicial review of a decision made by Mr Leahy as delegate of the Chief Executive of the Department of Justice and Attorney-General on 21 December 2010.  The application referred to that decision as having been made on 22 December 2010.  The grounds on which that application was based are those set out in the Amended Application for a Statutory Order of Review[2] filed on 22 June 2011.  The relief sought included orders that Mr Leahy’s decision be set aside and that subject matter of that decision be referred to the Chief Executive for decision according to law.

The decision made on 22 December 2010

[7] Circumstances preceding the decision:  The decision made by Mr Leahy arose from the following circumstances.

[8] On 22 May 2009, Francis Morgan Ryan, an employee of the appellant, was injured in the course of unloading a cargo of steel reinforcing bars from a vessel berthed at the Pinkenba wharf.  Mr Ryan was standing on a platform as a load of reinforcing bars was being lowered towards the tray of a truck.  The load started to turn anti-clockwise. 

[9] With one hand placed on the rail around the platform, Mr Ryan tried to push the load away from him with the other, but to no avail.  He then attempted to climb over the rail and as he did so, the load hit one of his feet and pushed him over the rail.  He fell about 1.5m to concrete below.  He sustained two broken arms and a head injury.

[10] Following an investigation into the incident by Workplace Health and Safety Qld, proceedings were commenced by way of complaint and summons in the Industrial Magistrates Court at Brisbane against the appellant on 8 January 2010.  Those proceedings allege that contrary to s 24(1) of the Workplace Health and Safety Act 1995 (“WHS Act”), the appellant had failed to discharge the obligation imposed upon it by s 28(2) thereof in that it had exposed its workers to risks to their health and safety.  The failure was particularised in terms of the incident in which Mr Ryan was injured.

[11] By letter dated 8 April 2010,[3] the appellant, by its solicitors, submitted to Mr Leahy, as delegate of the Chief Executive, a document setting out draft terms for a proposed workplace health and safety undertaking by it under Part 5 of the WHS Act (ss 42D to 42I inclusive).  Part 5 undertakings are described in the heading to Part 5 as enforceable undertakings. 

[12] The letter sought the Chief Executive’s acceptance of an enforceable undertaking in those terms.  It is significant in context, that s 42F(1) provides that if a Part 5 undertaking is accepted, then the Chief Executive must take the necessary steps to bring to an end any proceeding for a contravention to which the undertaking is referenced, which may have been commenced prior to the date of acceptance.  Thus, had the proposed enforceable undertaking been accepted, then the Chief Executive would have been required by law to take the necessary steps to bring an end to the proceedings commenced on 8 January 2010.

[13] The draft terms were reviewed by a senior adviser to the Enforceable Undertaking Unit Workplace Health and Safety Qld within the Department of Justice and Attorney-General, who provided advice and suggestions on the draft terms to the solicitors.[4]  They submitted a revised draft of terms to Mr Leahy on 17 June 2010.[5]

[14] The Enforceable Undertaking Panel, consisting of Departmental staff and independent experts, met to evaluate the revised draft terms.  Issues for comment and clarification raised by the Panel were notified to the solicitors on 28 June 2010.[6]  On 8 July 2010, the solicitors submitted a “final proposed version” of the terms which had been prepared to take those issues into account.[7]

[15] The Panel also had before it a submission[8] from solicitors for Mr Ryan expressing his “strong opposition” to the undertaking and emphasising his “strong desire” to have the appellant prosecuted for the circumstances in which their client was injured.

[16] On 22 July 2010, the members of the Panel made an out of session recommendation, as summarised by the senior adviser, “that [the appellant’s] proposal could be considered as an appropriate sanction in lieu of pursuing prosecution action through the Industrial Magistrates Court.”[9] 

[17] On 2 August 2010, the senior adviser notified the appellant’s solicitors by email that the Panel had “signed off” on the undertaking.[10]  Following some further correspondence over a date for a Community Safety Day proposed in the draft terms, on 6 August 2010, the solicitors supplied to the senior adviser, at his request, a scanned copy of the updated undertaking which had been executed on behalf of the appellant on 4 August 2010.[11] 

[18] The terms of the draft document:  Section 42D(1) of the WHS Act stipulates that an enforceable undertaking must recognise that the Chief Executive alleges that the person making it has contravened s 24(1) of the Act (or as an executive officer of a corporation which has contravened that section, has contravened of s 167 of the Act), identify the facts and circumstances of the alleged contravention, and include an assurance about future behaviour of the person.  The terms in the executed document deal with those matters.  They also specify a range of steps that the appellant would take to fulfil its undertaking.

[19] Those steps are summarised sufficiently for present purposes in the following clauses of the document:

 

“7.1[The appellant] proposes to enter into the Enforceable Undertaking to address the following key matters, namely:[12]

(1)Improvement of job safety analysis for all [of the appellant’s] management personnel;

(2)improvement of awareness of the risks of working at heights in the stevedoring industry; and

(3)compliance auditing of [the appellant’s] occupational health and safety management system.

7.2[The appellant] will address these matters by undertaking to:

(1)deliver a national training program on job safety analysis for all management personnel;

(2)develop an educational 15 minute DVD, focusing on working at heights;

(3)conduct regular third party auditing of its occupational health and safety management system;

(4)sponsor and organise, in collaboration with the Port of Brisbane, a community safety day to promote safety in the port.  Guest speakers will be engaged and a panel discussion will be organised; and

(5)make a donation to and engage with Kidsafe Qld Inc.”

[20] Clauses 8, 9 and 10 of the document respectively identify benefits of the undertaking to workers, to the stevedoring industry and to the community generally.  The clauses which follow them deal with a number of topics which it is unnecessary to detail here. 

[21] The decision:  On 28 September 2010, the senior adviser submitted a memorandum to Mr Leahy in which he recommended acceptance of the proposed undertaking[13].  On 22 November 2010 Mr Leahy endorsed the memorandum to the effect that he did not consider it to be an appropriate case for an enforceable undertaking “In light of the recent safety performance of the [the appellant] and the injured worker’s views”.[14]

[22] The senior adviser prepared a further memorandum to Mr Leahy dated 30 November 2010 for the purpose of seeking a review of that decision.[15]  That memorandum was endorsed “not approved” by Mr Leahy on 21 December 2010.  He noted in particular, his concerns “about the record of (the appellant) in terms of fatalities – admittedly one in another jurisdiction”.[16]

[23] By letter addressed to the appellant’s solicitors dated 22 December 2010 and received by them on 30 December 2010, Mr Leahy notified the appellant that he had declined the offer of an enforceable undertaking in the matter.[17]  The letter also advised that a “right of appeal” from the decision by way of a statutory order of review was afforded by s 20 of the Judicial Review Act

[24] Reasons for the decision: Attached to this letter was a seven page document which sets out the reasons for Mr Leahy’s decision.[18]  This document essays the history of the application, quotes from certain provisions in Part 5 of the WHS Act, and lists six policy principles that had been developed and published for deliberating upon analogous applications under antecedent Queensland workplace health and safety legislation.

[25] Each principle is considered in Part 5 of the reasons.  Observations and opinions of general conformity with the principles by the proposed undertaking are expressed in the reasons.  No instance of inconsistency with any of them is identified. 

[26] There follows in Part 6 of the document a list of some four other matters that were taken into account by Mr Leahy.  Those matters as listed in paragraph 6.1 of the document are:[19]

The quantum of the undertaking proposed by the obligation holder.

  • The objective gravity of this incident and its consequences.  I believe that the objective gravity of the offence is in medium range.  In considering the objective gravity, I have taken into account such issues as:-

-the adherence by the obligation holder to statutory obligations prior to the event;

-the nature of the incident including the actual and potential risk of injury;

-the culpability of the obligation holder;

-the circumstance of the incident;

-the presence of any aggravating or mitigating factors concerning the alleged offender;

-the degree of co-operation given to the investigating officers during the investigation;

-previous sanctions imposed on the alleged offender by the Department;

-any prior prosecution by the Department against the obligation holder;

-any remorse or lack of remorse of the obligation holder; and

-the obligation holder’s level of compliance to any previous enforcement options applied.

  • The compliance history of the obligation holder.  Each application for an enforceable undertaking is assessed on merit on a case by (sic) basis; however one of the factors taken into consideration with regard to the merit of an undertaking is the compliance history of the obligation holder.  I note that there have been three workplace fatalities at Australian wharves between February and July 2010.  Two of these fatalities involved employees of the obligation holder.  On 20 February 2010 an employee of the obligation holder sustained fatal injuries when run over by a forklift truck at Fisherman Island, Port of Brisbane.  On 14 July, 2010 an employee of the obligation holder sustained fatal injuries when a steel beam fell on him at Port of Melbourne, Victoria.
  • The comments of the injured worker with respect to the proposed undertaking.”

[27] Paragraph 7.1 in Part 7 of the document sets out the decision in the following terms:[20]

 

“I do not believe that an enforceable undertaking is an appropriate enforcement option in this case.  After consideration of all of the issues, including the compliance history of the obligation holder and the fatalities that have occurred, my decision is that the offer by [the appellant] for an Enforceable Undertaking in this matter is declined.”

The decision under appeal

[28] The appellant’s application for a statutory order of review was made under s 20(1) of the JR Act.  Section 48(1) of that Act confers a discretion on the court to stay or dismiss an application under s 20 if the court considers that any one of a number of circumstances exists.  The circumstance stated in s 48(1)(a)(i) is that it would be inappropriate for proceedings in relation to the application to be continued.

[29] The learned Judge considered that it was proper to dismiss the application on the basis that it was inappropriate for those proceedings to continue.[21]  He did so on the footing that certain decisions involved in the prosecution process, including those as to who is to be prosecuted and for what, are, of their nature, insusceptible of judicial review.  He considered that to order that Mr Leahy’s decision be set aside and that he reconsider the matter for decision “would mean that the Court had become ‘concerned’ with the decision as to who to prosecute,”[22] and that on that account, his decision was not judicially reviewable.

[30] His Honour stated that had he not dismissed the application under s 48(1), he would have dismissed it on other grounds.[23]  He touched on those grounds “briefly” in the reasons.[24]  In so doing, he expressed the view that the rules of natural justice as they might have entitled the appellant to an opportunity to make submissions about the two fatalities and those made on behalf of Mr Ryan, did not apply to the decision that Mr Leahy had to make.[25] 

The proposed grounds of appeal

[31] The proposed grounds of appeal are focused upon two issues, namely, the correctness of the learned Judge’s assimilation of a decision whether to accept an enforceable undertaking to a decision whether to initiate or continue a prosecution and the correctness of his view with respect to the applicability of the rules of natural justice to the decision.  At the hearing of the appeal, oral argument concentrated upon the former issue. 

[32] Analysis of both issues requires consideration of the provisions in Part 5 of the WHS Act.  It is preceded by Part 3 which is headed “Workplace health and safety obligations” and contains ss 24 and 28 to which reference has been made.  Part 4 deals with regulations, codes of practice and ministerial notices.

Part 5 of the WHS Act

[33] I have already mentioned the requirements for an enforceable undertaking set out in s 42D.  It is obvious from the first of them that an enforceable undertaking may be made only by a person whom the Chief Executive alleges has contravened s 24(1) or s 167.  Section 42DA deals with time for receipt by the Chief Executive of a proposed undertaking. 

[34] The remaining provisions in Part 5 state:

 

42EAcceptance and publication of workplace health and safety undertaking

(1)The chief executive may, by written notice given to the identified person for a workplace health and safety undertaking, accept the workplace health and safety undertaking.

(2)When the chief executive accepts the workplace health and safety undertaking, the undertaking—

(a)starts operating; and

(b)becomes enforceable against the identified person.

(3)The chief executive may publish details of the undertaking.

42FProceeding for alleged contravention

(1)If a proceeding for the alleged contravention for the workplace health and safety undertaking has been started before an industrial magistrate against the identified person for the undertaking before the undertaking starts operating, the chief executive must take the necessary action to bring the proceeding to an end.

(2)If a proceeding for the alleged contravention has not been started before the undertaking starts operating, a proceeding for the alleged contravention must not be started.

42GCompliance with undertaking

The identified person for an operating workplace health and safety undertaking must not contravene the undertaking.

Maximum penalty—1000 penalty units.

42HWithdrawal or variation of undertaking

(1)The identified person for an operating workplace health and safety undertaking may at any time, with the agreement of the chief executive—

(a)withdraw the undertaking; or

(b)change the provisions of the undertaking.

42IContravention of workplace health and safety undertaking

(1)This section applies if the chief executive considers the identified person for an operating workplace health and safety undertaking has contravened the undertaking.

(2)The chief executive may apply to an industrial magistrate for an order under this section.

(3)If the magistrate is satisfied the identified person has contravened the undertaking, the magistrate may make 1 or more of the following orders—

(a)an order directing the identified person to comply with the undertaking, or a stated aspect of the undertaking, or to comply with the undertaking, or a stated aspect of the undertaking, in a stated way;

(b)an order directing the person to pay to the State an amount that is not more than the direct or indirect financial benefit obtained by the person from, and reasonably attributable to, the breach;

(c)an order directing the person to give a security bond to the State for a stated period;

(d)another order the magistrate considers appropriate in the circumstances.

(4)A prosecution for the offence of contravening the workplace health and safety undertaking does not prevent the magistrate from making an order under this section on the chief executive’s application, even though the prosecution and the order are based on the same facts and circumstances.

(5)The making of an order under this section, unless the order otherwise provides, does not prevent a prosecution for the offence of contravening the workplace health and safety undertaking, even though the order and the prosecution are based on the same facts and circumstances.”

[35] It can be seen from these provisions that Part 5 provides a framework for enforceable undertakings which, upon acceptance by the Chief Executive, start operating and become enforceable against persons making them.  Contravention of an enforceable undertaking is itself an offence for which the contravenor may be prosecuted and ordered to pay a monetary penalty.  An array of other orders may be imposed on the contravenor by an Industrial Magistrate.

[36] As noted, a very significant consequence of the acceptance of an enforceable undertaking is the one contained in s 42F(1), namely, that the Chief Executive is to take the necessary action to bring to an end a proceeding which has been started for the alleged contravention to which the undertaking is referenced.  Section 42F(2) provides that if no such proceeding has been started, then a proceeding for the alleged contravention must not be started after acceptance of the undertaking. 

Ground (a)

[37] This ground is that the learned Judge erred by characterising the decision not to accept the enforceable undertaking as a decision by a prosecutor to prosecute, or a decision sufficiently similar to a decision by a prosecutor to prosecute, so as not to attract judicial review.

[38] This ground implicitly accepts that, as a matter of law, decisions to commence or institute prosecutorial proceedings are not amenable to judicial review.  The authorities to which the learned Judge referred including Barton v The Queen,[26] demonstrate clearly that such decisions are non-reviewable judicially.  The rationale for this rule of law was explained by Gaudron and Gummow JJ in Maxwell v The Queen[27] in terms of maintenance of the integrity of the judicial process, their Honours said:[28]

 

“… The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.”

[39] In the preceding sentence, their Honours listed types of decisions that might be required to be made in the prosecutorial process that, by their nature, were insusceptible of judicial review.  The list, which was not advanced as an exhaustive one, identified decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence, and decisions as to the particular charges to be laid or prosecuted.

[40] This exposition of the rationale was subsequently adopted by their Honours and Hayne J in Director of Public Prosecutions, South Australia v B[29] as providing support for the observations they had just made that:

 

The line between, on the one hand, the decisions whether to institute or continue criminal proceedings (which are decisions the province of the executive) and on the other, decisions directed to ensuring a fair trial of an accused and the prevention of abuse of the court’s processes (which are the province of the courts) is of fundamental importance.”  (Citation omitted.) [30]

[41] These observations pay regard to the inherent power of the court to prevent an abuse of process exercise of which may involve consideration of whether a prosecution should be permitted to continue, and to the power of the court to ensure an accused person is treated fairly.  The members of the court in Barton had referred to both these powers.[31]

[42] In Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited,[32] McHugh J offered an explanation for the rule which focuses upon allocation of responsibility for public law enforcement under the doctrine of separation of powers.[33]  Citing the decision of the House of Lords in Gouriet v Union of Post Office Workers,[34] his Honour remarked:[35]

 

“The decision when and in what circumstances to enforce public law frequently calls for a fine judgment as to what the public interest truly requires.  It is a decision that is arguably best made by the Attorney-General who must answer to the people, rather than by unelected judges expanding the doctrine of standing to overcome what they see as a failure of the political process to ensure that the law is enforced.”  (Citations omitted.)

[43] Whilst the rationale for the rule may reflect several objectives, the immunity from judicial review that it confers need extend only so far as is necessary to achieve them.  To extend it beyond the necessary would risk unjustifiable intrusion upon the availability of judicial review of administrative action.  Hence, courts have been careful to apply the immunity only in circumstances where the rationale for it justifies its application.

[44] That approach can be seen in cases concerning legislative provisions which permit the institution of proceedings for an offence with the consent or authorisation of an office holder in executive government.  In Oates v Williams,[36] a full court of the Federal Court held that a grant of Ministerial consent under s 1316 of the Corporations Law to the institution of proceedings for an offence was judicially reviewable.  Relevantly, that section provided that proceedings for an offence against the Law might be instituted within the period of five years after the act or omission alleged to constitute the offence, or with the Minister’s consent, at any later time. 

[45] Their Honours considered that a consent decision taken under the section had little in common with a decision to commence a prosecution or a decision to consent to the commencement of a prosecution.  In the first place, they said, the effect of a s 1316 consent was to take away from the accused the ability to plead an absolute answer to a criminal prosecution; whereas a decision to commence a prosecution or to consent to the commencement of a prosecution did not affect any right of the accused.  Secondly, the matters that fell for consideration when making those types of decisions were different.  A prosecutor must decide whether there is a prima facie case in order to prosecute.  With a consent to prosecute decision, the decision maker is concerned to determine whether the proposed prosecution is frivolous or vexatious.  By contrast, a decision under s 1316 required consideration principally of the reason why the prosecution had not been commenced within five years and whether the grant of consent would unfairly prejudice the accused.[37]

[46] Neither their Honours’ view that a s 1316 consent decision was not immune from judicial review nor their reasons for it was put in question by the High Court which allowed an appeal from the decision.[38]  The appeal succeeded on the basis that, on the proper construction of s 1316, the five year time limit did not apply to the offence in question and hence Ministerial consent was not required.

[47] A comparable conclusion was reached by the Full Court of the Supreme Court of South Australia in Gelzinis v T&R (Murray Bridge),[39] with respect to the decision of the Acting Director of Public Prosecutions to extend a two year time limit for the laying of a complaint alleging a breach of workplace safety legislation.  Both Oates and Gelzinis were followed recently by Robson J of the Supreme Court of Victoria in Patrick Stevedores Holdings Pty Ltd v The Director of Public Prosecutions[40] in relation to a decision of the Director of Public Prosecutions authorising the commencement of proceedings for an indictable offence against workplace safety legislation after a two year time limit had expired.  Contrasting two different types of decisions to be made by the same decision maker, the Director, his Honour observed:[41]

 

“… the decision to extend time to institute a proceeding does not involve considering whether or not there is a prima facie case against the accused.  That decision is made by the person authorised to bring the proceeding.  Under the OHS Act the DPP is authorised to bring the proceeding.  However, the decision by the DPP to bring the proceeding would be made taking different matters into account to those taken into account in deciding whether to extend time in which to bring the proceeding.”

[48] It is clear then that the nature of the decision, the range of matters to be considered in making it, and the impact it may have upon the legal rights and obligations of the person or persons affected by it are relevant to categorisation of a decision as one to commence or continue a prosecution, or not.

[49] The decision that s 42E(1) requires be made is foremost one whether a proposed undertaking is to be accepted or not.  It is not, by its nature, a decision whether to commence or continue a prosecution.  Moreover, under s 164(5) of the WHS Act, a prosecution for an offence against it must be commenced by complaint of an inspector or someone else authorised by the Minister or the Chief Executive.  Thus, the decision maker for a s 42E(1) decision is not an officeholder who, by statute, is to  commence a prosecution.

[50] That a s 42E(1) decision differs from a decision whether to commence or continue a prosecution is illustrated also by the difference in the range of relevant matters to be considered in making them.  As noted, in making his decision, Mr Leahy had regard to certain principles.  These principles required consideration by him of a number of matters.  In these proceedings, none of them are submitted to be irrelevant.  They included whether the enforceable undertaking would deliver some tangible benefits to workers in the industry and the community; whether it met the statutory and policy requirements of the WHS Act; whether it provided specific monitoring requirements; and whether it provided for payment of the Departmental costs of the investigation which had preceded the prosecution and of monitoring activities.  By contrast, a decision whether to commence or continue a prosecution has a focus upon whether or not there is a prima facie case and does not require consideration of the matters arising from the principles to which Mr Leahy referred.  Nor do other decisions of the kinds listed by Gaudron and Gummow JJ in Maxwell, to which I have referred at [38], require consideration of them.

[51] In terms of impact upon legal rights and obligations, the two types of decisions differ also.  A decision to accept an undertaking made under s 42E(1) has immediate legal consequences for the party who offers it.  By virtue of s 42E(2), thereupon, the undertaking starts operating and becomes enforceable against the person.  That it is enforceable is reciprocal with the imposition upon the person of a legal obligation to perform the undertaking according to its terms.  Breach of the obligation by contravention of the undertaking exposes the contravener to the sanction of a criminal penalty.[42]  In addition, under s 42I, a contravention of the undertaking exposes the person to a range of other legally enforceable sanctions by order of an industrial magistrate.[43]  On the other hand, as was observed in Oates,[44] a decision to prosecute or to continue a prosecution does not affect any right of the accused. The same is so for other decisions of the kinds listed by Gaudron and Gummow JJ.

[52] In my view, a decision under s 42E(1) is not a decision to commence or continue a prosecution or so similar thereto as would attract immunity from judicial review.  It is a substantially different type of decision.  That the legislature has enacted in s 42F that if an undertaking is accepted, the Chief Executive must take the necessary action to bring to an end a proceeding for a contravention which is pending or must not start such a proceeding, is properly seen as but one of the consequences that a decision under s 42E(1) has.  That consequence does not stamp upon the decision the character of a decision to commence or continue a prosecution.

[53] For these reasons I consider that ground (a) must succeed.

Ground (b)

[54] This ground, which is cast in general terms, contends that the learned judge erred in finding that “certain of the matters set out in [the appellant’s] compliance history were relevant to the decision”.  In written submissions, these matters were identified as the circumstances of two fatalities involving employees of the appellant which occurred in February and July 2010.  One of these fatalities occurred at a wharf at the Port of Brisbane, the other at a wharf at the Port of Melbourne.

[55] Section 42E(1) does not, in express terms, define or confine the matters to be considered in making a discretionary decision under it to accept an undertaking.  Where a statute confers a discretion which in its terms if unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may be legitimately have regard.[45]

[56] By way of obiter, the learned judge expressed the view that having regard to the overall objective of the statute as one of increased workplace health and safety, Mr Leahy was not precluded from acting upon the footing that it was open to him to have regard to the circumstances of those two fatalities in making his decision.[46]

[57] Neither in its written submissions nor in oral argument on the appeal, did the appellant advance argument why his Honour’s view was incorrect.  Implicit in that is an acknowledgement, appropriately made in my opinion, that his Honour’s view is correct. 

[58] Ground (b), therefore, is not made out.  As will be seen, the fatalities have a prominence in the appellant’s remaining grounds of appeal.

Ground (c) and (d)

[59] These grounds of appeal are interlinked.  Ground (c) challenges the learned judge’s obiter conclusion that a decision under s 42E(1) does not attract the rules of natural justice.  Ground (d) contends that the learned judge erred in failing to find that the appellant was denied natural justice by a failure on the part of Mr Leahy to notify it that he proposed to have regard to the circumstances of the two fatalities and to afford the appellant an opportunity to make submissions to him in regard to them.

[60] The reasoning towards the conclusion under challenge was substantially based upon the learned judge’s conception of a s 42E(1) decision as essentially one with respect to enforcement of the criminal law.  For the reasons given in relation ground (a), I do not accept that conception is a sound one.

[61] The recent decision of the High Court in Saeed v Minister for Immigration and Citizenship,[47] summarises the legal principles which govern the application of the rules of natural justice to statutory decision making in the following terms:

 

A condition on the power to refuse

11In Annetts v McCann[48] it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power[49]. Brennan J in Kioa v West[50] explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:

‘[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that ‘the justice of the common law will supply the omission of the legislature’. The true intention of the legislation is thus ascertained.’

12The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann[51].

13Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West[52]. A failure to fulfil that condition means that the exercise of the power is inefficacious[53]. A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid[54].

14In Annetts v McCann Mason CJ, Deane and McHugh JJ said that the principles of natural justice could be excluded only by ‘plain words of necessary intendment’[55]. And in Commissioner of Police v Tanos [56] Dixon CJ and Webb J said that an intention to exclude was not to be assumed or spelled out from ‘indirect references, uncertain inferences or equivocal considerations’. Their Honours in Annetts v McCann added that such an intention was not to be inferred from the mere presence in the statute of rights consistent with some natural justice principles.

15The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness[57] derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers’ Union[58], ‘governs the relations between Parliament, the executive and the courts’[59]. His Honour said[60]:

‘The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.’”

[62] As explained, a decision to accept an undertaking does have immediate legal consequences for the party who offers it.  That party becomes subject to a legal obligation to perform the undertaking, contravention of the terms of which is visited with a range of legal sanctions, including criminal sanction.  A person who proposes an undertaking for approval has a clear interest in whether or not it is to have imposed upon it that legal obligation.  The person’s interest is not limited in the way that the learned judge described it[61] as one only of not being prosecuted.  Thus, consistently with legal principles set out in Saeed, the assumption is that the rules of natural justice will apply to the making of a decision under s 42E(1).

[63] I am unable to discern within Part 5 or elsewhere in the WHS Act an expression by plain words of a legislative intent that the rules of natural justice are not to apply to a decision under s 42E(1).  The respondents have not identified anything within the Act which they submit clearly expresses such an intention.  I note, by way of contrast, the very different legislative features identified by the majority as revealing the “necessary intendment” that the provisions then under consideration not be attended by a requirement for the observance of procedural fairness in the recent decision of the High Court in S10/2011 The Minister for Immigration and Citizenship.[62]

[64] Applying the principles summarised in Saeed, I therefore conclude that the principles of natural justice do apply to the making of a decision under that section.  Ground (c) must succeed.

[65] What the rules of natural justice will require be done in order to accord procedural fairness in a given instance will be influenced by the circumstances that attend that instance.  Here, Mr Leahy proposed to have regard to the two fatalities.  That circumstance required him to notify the appellant accordingly and to offer the appellant the opportunity to make submissions with respect to the fatalities.  The necessity of taking those steps was enhanced by the prominence that Mr Leahy was proposing to give to the fatalities in making his decision. 

[66] It is common ground that Mr Leahy did not take either of those steps.  In failing to do so, he failed to comply with the rules of natural justice.  Accordingly, ground (d) must also succeed.

Disposition

[67] A breach of natural justice affords a ground for grant of a statutory order of review with respect to a decision: s 20(2)(a) JR Act.  For the foregoing reasons, I consider that the appellant has established this ground and is entitled to relief.  The decision made by Mr Leahy should be quashed and the matter be remitted to the Chief Executive for decision according to law consistently with these reasons.  The merit of the appeal and the importance of the issues raised by grounds (a) and (c) plainly warrant a grant of leave to appeal from the order made 18 January 2012.[63]

[68] By way of postscript I would add that if the chief executive proposes to have regard also to the submissions that had been made in the letter from Mr Ryan’s solicitors dated 17 June 2010, then it, too, should be referred to the appellant and the appellant should be given an opportunity to make submissions with respect to it.

Orders

[69] I would propose the following orders:

 

1. The appellant have leave to appeal from the order made 18 January 2012;

2. The appeal be allowed. The order made 18 January 2012 be set aside;

3. The decision of the second respondent made on 22 December 2010 not to accept an enforceable undertaking by the appellant pursuant to Part 5 of the Workplace Health and Safety Act 1995 in respect of an incident on 26 May 2009 involving an employee of the appellant, Mr Francis Morgan Ryan, be quashed;

4. The matter of acceptance of the enforceable undertaking so proposed by the appellant be referred to the first respondent for decision according to law, consistently with these reasons; and

5. The respondents pay the appellant’s costs of the application and of the appeal to be assessed on the standard basis.

[70] MULLINS J:  I agree with Gotterson JA. 

Footnotes

[1] AB 261-264.

[2] AB 200-205.

[3] AB 39.

[4] Email 27 April 2010 AB 42-44.

[5] AB 45.

[6] Email 28 June 2010 AB 46.

[7] AB 49.

[8] Letter dated 17 June 2010 AB 120-122.

[9] AB 100.

[10] AB 50.

[11] AB 55.

[12] AB 58.

[13] With attachments AB 99-142.

[14] AB 102.

[15] With attachments AB 143-190.

[16] AB 147.

[17] AB 64.

[18] AB 65-71.

[19] AB 70.

[20] AB pp 70-71.

[21] Reasons [32].

[22] Reasons [31].

[23] Reasons [33].

[24] Reasons [34]-[44].

[25] Reasons [39]-[41].

[26] (1980) 147 CLR 75.

[27] (1996) 184 CLR 501.

[28] At 534.

[29] (1998) 194 CLR 566 at 579-580.

[30] At 579.

[31] At 96, 103 and 107.

[32] (1998) 194 CLR 247.

[33] At [82]-[86].

[34] [1987] AC 435.

[35] At [86].

[36] (1998) 88 FCR 348.

[37] At 354 – 355.

[38] Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35.

[39] (2009) 103 SASR 194.

[40] [2012] VSC 31.

[41] At [68].

[42] Section 42G.

[43] Section42I(1).

[44] Full Court at 355.

[45] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per MasonJ.

[46] Reasons [35].

[47] (2010) 241 CLR 252; [2010] HCA 23.

[48] (1990) 170 CLR 596.

[49] Annetts v McCann (1990) 170 CLR 596 at 598 per MasonCJ, Deane and McHughJJ.

[50] (1985) 159 CLR 509 at 609 (citation omitted).

[51] (1990) 170 CLR 596.

[52] (1985) 159 CLR 550 at 609.

[53] FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 409 per Brennan J.

[54] Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 401 per Barwick CJ.

[55] (1990) 170 CLR 596 at 598.

[56] (1958) 98 CLR 383 at 396.

[57] Potter v Minahan (1908) 7 CLR 277 at 304 per O’Connor J.

[58] (2004) 221 CLR 309 at 329 [21].

[59] Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 329 [21], referring to R v Secretary of State for Home Department; Ex parte Pierson [1998] AC 539 at 587, 589.

[60] Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 329 [21].

[61] Reasons [40].

[62] [2012] HCA 31 at [99], [100].

[63] Lumley v Crime and Misconduct Commission [2009] QCA 79; Barton v Beattie and Ors [2010] QCA 100.

Close

Editorial Notes

  • Published Case Name:

    QUBE Ports Pty Ltd v Chief Executive Department of Justice and Attorney-General & Anor

  • Shortened Case Name:

    QUBE Ports Pty Ltd v Chief Executive Department of Justice and Attorney-General

  • Reported Citation:

    [2013] 2 Qd R 260

  • MNC:

    [2012] QCA 285

  • Court:

    QCA

  • Judge(s):

    Muir JA, Gotterson JA, Mullins J

  • Date:

    23 Oct 2012

Litigation History

Event Citation or File Date Notes
Primary Judgment - - -
Appeal Determined (QCA) [2012] QCA 285 23 Oct 2012 -

Appeal Status

{solid} Appeal Determined (QCA)