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Seiffert v Commissioner of Police[2021] QCA 170

Seiffert v Commissioner of Police[2021] QCA 170

SUPREME COURT OF QUEENSLAND

CITATION:

Seiffert & Ors v Commissioner of Police [2021] QCA 170

PARTIES:

SEIFFERT, Beau Richard

(first applicant)

DAVIDSON, Craig Patrick

(second applicant)

CUNDY, Kieron Daniel

(third applicant)

MOLONEY, Wendel James

(fourth applicant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

CA No 96 of 2020

CA No 97 of 2020

CA No 98 of 2020

CA No 99 of 2020

DC No 2205 of 2019

DC No 2206 of 2019

DC No 2209 of 2019

DC No 2210 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane – [2020] QDC 50 (Rafter SC DCJ)

DELIVERED ON:

20 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2021

JUDGES:

Fraser and McMurdo JJA and Bradley J

ORDERS:

The following orders are made in each applicant’s application for leave to appeal:

  1. (a)
    Grant leave to appeal.
  2. (b)
    Allow the appeal.
  3. (c)
    Set aside the orders made in the District Court.
  4. (d)
    The respondent is to pay the applicant’s costs of the appeal to the District Court and the costs of the application for leave to appeal and the appeal to this Court.

CATCHWORDS:

              INDUSTRIAL LAW – WORK HEALTH AND SAFETY – DUTIES AND LIABILITIES – INVESTIGATIONS AND SECURING COMPLIANCE – where each applicant was a union official who held a permit under the Fair Work Act and a “WHS entry permit” issued under the Work Health and Safety Act 2011 (Qld) – where the applicants attended a work site to conduct inquiries in relation to a suspected contravention of the Work Health and Safety Act – where the applicants were denied entry by the employer and the industrial inspectors were unable to give a direction under s 141A of the Work Health and Safety Act – where the employer contacted the police and the applicants refused to leave the site, citing their authority under ss 117 and 118 of the Work Health and Safety Act – where each applicant was charged with trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld) – where the Magistrates Court found the applicants had no case to answer and ordered that the charges be dismissed – where the respondent appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) against the dismissal of the charges – where the District Court allowed the appeal and remitted the proceedings to the Magistrates Court to proceed according to law – where the applicants contend that upon the proper construction of ss 117 and 118 of the Work Health and Safety Act they (as a WHS entry permit holder) were, at the time of their arrest, lawfully entitled to remain at the site in question – where, further, or, in the alternative, the applicants contend that s 11(3) of the Summary Offences Act excluded the applicant from liability under s 11(2) of that Act – whether the applicants’ conduct in remaining at the workplace was authorised under ss 117 and 118 of the Work Health and Safety Act 2011 (Qld) and was therefore lawful

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – SCALES OF COSTS – DISCRETION TO VARY SCALE – COMPLEXITY, DIFFICULTY OR IMPORTANCE – where the Magistrates Court decided that the respondent should pay the applicants’ costs of defending the charges – where the magistrate also exercised the discretion under s 158B(2) of the Justices Act 1886 (Qld) that the just and reasonable amount for costs was higher than the amount calculated in accordance with the prescribed scale of costs – where the respondent appealed to the District Court against the magistrate’s exercise of that discretion – whether the magistrate erred in the exercise of their discretion under s 158B(2) of the Justices Act

Justices Act 1886 (Qld), s 158A, s 158B

Summary Offences Act 2005 (Qld), s 11

Work Health and Safety Act 2011 (Qld), s 3, s 117, s 118, s 119, s 141, s 141A, s 142

Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45, cited

Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15, cited

Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, cited

House v The King (1936) 55 CLR 499; [1936] HCA 40, applied

May v O'Sullivan (1955) 92 CLR 654; [1955] HCA 38, cited

Ramsay v Menso (2018) 260 FCR 506; [2018] FCAFC 55, cited

COUNSEL:

J K Kirk SC, with C A Massy, for the applicants

M D Nicholson for the respondent

SOLICITORS:

Hall Payne Lawyers for the applicants

QPS Legal Unit for the respondent

  1. [1]
    FRASER JA:  Each applicant was charged with trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld).  The Magistrates Court upheld a submission that the applicants had no case to answer, ordered that the charges be dismissed, decided that the respondent should pay the applicants’ costs of defending the charges and that the just and reasonable amount for costs was higher than the amount calculated in accordance with the prescribed scale of costs, and ordered that the respondent pay the applicants’ costs of $21,250.00 within two months.
  1. [2]
    The respondent appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) against the dismissal of the charges and the magistrate’s decision that the just and reasonable amount of the applicants’ costs was higher than the amount calculated in accordance with the prescribed scale.  Rafter DCJ ordered that the appeal be allowed, the orders made in the Magistrates Court be set aside, and the proceedings be remitted to the Magistrates Court at Brisbane to proceed according to law.  The applicants seek leave to appeal against those orders.

The proposed appeals against the orders setting aside the orders of the Magistrates Court dismissing the charges

  1. [3]
    Section 11(2) of the Summary Offences Act made it an offence for a person to “unlawfully enter, or remain in, a place used as a yard for, or a place used for, a business purpose”.  The charge against each applicant was that he unlawfully remained in a place used as a yard for a business purpose. Section 11(3) provided that s 11 “does not prevent an authorised industrial officer entering a workplace in accordance with the terms of the person’s appointment as an authorised industrial officer.”  The term “unlawfully” is defined to mean “without authorisation, justification or excuse by law”.  The expression “authorised industrial officer” is defined to include “a permit holder under the Fair Work Act 2009 (Cwlth)”.
  2. [4]
    The no-case submission for the applicants was grounded upon four contentions.  Those contentions were accepted by the Magistrates Court but each of them was rejected in the District Court.  The applicants now pursue only two of their original contentions.  The relevant grounds of each applicant’s application for leave to appeal are that upon the proper construction of ss 117 and 118 of the Work Health and Safety Act 2011 (Qld) the applicant (as a WHS entry permit holder) was, at the time of his arrest, lawfully entitled to remain at the site in question; and further, or, in the alternative, s 11(3) of the Summary Offences Act excluded the applicant from liability under s 11(2) of that Act.
  3. [5]
    As Rafter DCJ observed, the question to be decided upon the applicants’ submission that there was “no case to answer” was whether, upon the evidence in the prosecution case the applicants could lawfully be convicted,[1] and in deciding that question the prosecution case must be taken at its highest.[2]  In the applications in this Court there is no dispute about the facts capable of being proved beyond reasonable doubt by the evidence in the prosecution case.  The arguments focused instead upon the proper construction of ss 117 and 118 of the Work Health and Safety Act and (to a lesser extent) of s 11(3) of the Summary Offences Act.
  4. [6]
    The proper construction of those provisions is important for the operation of the Work Health and Safety Act.  It also has a broader significance because, as is mentioned in s 3(1) of that Act, its main object is “to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces” by ways set out in that provision.  Furthermore, a consequence of the decision in the District Court is to expose the applicants to a risk of conviction which would not arise upon the construction of the relevant provisions accepted by the magistrate and propounded by the applicants in this application.  That construction is certainly reasonably arguable.  It is appropriate to grant leave to appeal.
  5. [7]
    Each applicant was a union official who held a permit under the Fair Work Act and a “WHS entry permit” issued under the Work Health and Safety Act.  Section 117(1) in Part 7 of the Work Health and Safety Act provided that “a WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.”  The expression “relevant worker”, where it is used in Part 7 in relation to a workplace, is defined to mean “a worker … who is a member, or eligible to be a member, of a relevant union … and … whose industrial interests the relevant union is entitled to represent … and … who works at that workplace.”  Section 117(2) provided that the “permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring”.
  6. [8]
    Section 118 provided:

“(1) While at the workplace under this division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act –

  1. (a)
    inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention;
  1. (b)
    consult with the relevant workers in relation to the suspected contravention;
  1. (c)
    consult with the relevant person conducting a business or undertaking about the suspected contravention;
  1. (d)
    require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that –
  1. (i)
    is kept at the workplace; or
  1. (ii)
    is accessible from a computer that is kept at the workplace;
  1. (e)
    warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk.
  1. (2)
    However, the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.
  1. (3)
    A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d).

WHS civil penalty provision.

Maximum Penalty – 100 penalty units.

  1. (4)
    Subsection (3) places an evidential burden on the defendant to show a reasonable excuse.

Notes—

1 At least 24 hours notice is required for an entry to a workplace to inspect employee records or other documents held by someone other than a person conducting a business or undertaking. See section 120.

2 The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth.

  1. [9]
    Section 119(1) of the Work Health and Safety Act obliged a WHS entry permit holder, as soon as is reasonably practicable after entering a workplace, to give notice of the entry and suspected contravention to “the relevant person conducting a business or undertaking” and “the person with management or control of the workplace”.  Section 119(2) provided an exception for cases in which giving the notice “would defeat the purpose of the entry … or unreasonably delay the WHS entry permit holder in an urgent case”.
  2. [10]
    At the hearing in the Magistrates Court the police prosecutor gave particulars of the prosecution case against each applicant:

“… the prosecution alleges that in the face of Mr James’ refusal to allow the defendants on the site and his absolute steadfast refusal to allow them to remain, the defendants continuing to remain on the site became unreasonable as they were never going to be able to exercise their purpose that day.  And, despite this, they continued to remain to the detriment of Mr James whereupon they were arrested.”[3]

  1. [11]
    Thus the prosecution case did not include an allegation that the applicants did not lawfully enter the site, or an allegation that they did not lawfully remain on the site before their continuing presence allegedly became unreasonable after Mr James had persisted in his objection to them remaining and they were allegedly unable to conduct an inquiry of the kind described in s 118.
  2. [12]
    The prosecution admitted by agreement the following facts:[4]

“a. at all material times each [applicant] was a permit holder pursuant to the provisions of the Fair Work Act 2009 (Cth) (the FW Act);

b. at all material times each [applicant] was a permit holder pursuant to the provisions of the Work Health and Safety Act 2011 (Qld) (the WHS Act);

c. at all material times each [applicant] was an authorised industrial officer for the purposes of s. 11 of the Summary Offences Act 2005 (Qld);

d. the charge against each [applicant] relates to premises known as Enco Precast which is located at 73 Counihan Road in Seventeen Mile Rocks;

e. at all material times each [applicant] was exercising authority to enter the premises under the FW Act and WHS Act;

f. each of the [applicants] entered the premises at or about 7:40am on 17 December 2018;

g. upon entry each of the [applicants] provided entry notices to Mr Steven James;

h. Mr James refused further presence on the premises to each of the [applicants] and asked them to leave;

i. the [applicants] were arrested at approximately 11:15am on the same day;

j. Ms Helen Burgess, an inspector from Workplace Health and Safety Queensland (WHSQ), attended the premises;

k. Ms Burgess departed the premises without giving Mr James or any staff member of Enco Precast a written direction under s. 141A of the WHS Act; and

l. Mr James did not produce records as required by Ms Burgess under the WHS Act.”

  1. [13]
    It is useful here also to set out Rafter DCJ’s summary of the main facts established by the evidence adduced in the prosecution case:

[12] The main facts were not in dispute. At the time of entry onto the premises the [applicants] each presented a notice of entry in accordance with s 119 WHS Act. Shortly after entering the premises the respondents were asked by Mr James to leave. The [applicants] referred Mr James to their notices of entry which outlined the rights they were seeking to exercise in accordance with s 118 WHS Act. The [applicants] refused to leave the premises.

[13] Mr James said that he would be calling the police. Mr Seiffert contacted Ms Burgess at the Office of Industrial Relations and requested assistance in relation to entering the work site.

[14] Senior Constable Easton was the first police officer to arrive at the site followed by Senior Constable Mackay and Constable Cooper. Senior Constable Mackay and Constable Cooper spoke to the [applicants] in a small office at the work site. The [applicants] stated that they were union officials and were at the work site for the purpose of conducting a workplace health and safety inspection. The [applicants] said that they were remaining in order to exercise their rights under ss 117 and 118 WHS Act.

[15] At about 9.00 am the industrial inspectors, Ms Burgess and Mr Azcune[5] arrived at the site and spoke to the [applicants]. The [applicants] told them that they had entered the premises in accordance with s 117 WHS Act and were seeking to exercise their functions pursuant to s 118 WHS Act.

[16] The industrial inspectors requested that Mr James provide them with documentation and access to the workplace in order to assist them to resolve the dispute between the [applicants] and ENCO. Mr James refused to provide the requested documentation or provide access to the industrial inspectors. Ms Burgess eventually told the [applicants] that she was unable to assist with their entry.

[17] The industrial inspectors left the premises without issuing any direction or making any determination in relation to the matter. After the departure of the industrial inspectors the [applicants] informed the police officers that they intended to remain on the premises in order to exercise their rights under the WHS Act.

[18] At about 11.15am the [applicants] were arrested for the offence of trespass by remaining on the premises. There were video recordings made of the conversation principally between Sergeant Lewis and some of the [applicants] leading up to and including the time of arrest.”[6]

  1. [14]
    The transcript of the recording of interactions between the police officers and the applicants in the period leading up to the arrests demonstrates that the applicants maintained throughout that they remained at the site for the purpose of exercising their statutory rights under the Work Health and Safety Act.  A police officer told the applicants that police could not determine if the applicants were there lawfully because Workplace Health and Safety could not make a determination.  After one of the applicants referred to having a report about illegal plumbing on the job, one of the police officers said his role was to assist Workplace Health and Safety, that was finished because they had gone, and the applicants had to go because the owners of the premises say that the applicants are not allowed to be there.  The police officers more than once asked the applicants to leave the site.  The applicants were arrested upon charges of trespass when they did not leave the site after police officers had told the applicants they would be arrested if they did not leave voluntarily.
  2. [15]
    In response to the no-case submission for the applicants, the prosecutor submitted that “given that Enco were never going to allow the [applicants] to exercise their rights, and that no assistance from OIR [Office of Industrial Relations] was forthcoming, the argument about having a right to remain became a nullity;[7] “after speaking with OIR officers, the [applicants] should have left the premises the moment they realised they could not exercise their powers under [the Fair Work Act] or [the Work Health and Safety Act] legislation.  In a situation where the [applicants’] authority to enter was under question, and where Enco was refusing to allow the [applicants] to exercise any further powers, all justification and execution to remain on site was extinguished.”[8]  The prosecutor submitted that the continuing presence of the applicants was unlawful after the inspectors from Workplace Health and Safety Queensland did not issue any direction under s 141A of the Work Health and Safety Act.
  3. [16]
    The reliance in these arguments upon the fact that the industrial inspectors did not give a direction under s 141A expanded the prosecution case beyond the particulars reproduced in [10] of these reasons.  Section 141A was in subdivision 1 (“Role of inspectors”), in division 6 (“Dealing with disputes”) of part 7 of the Work Health and Safety Act.  In that subdivision, s 141 empowered any party to a dispute about “the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act [to] … ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute”.  Section 141A provided:

“(1) This section applies if—

  1. (a)
    an inspector is appointed by the regulator under section 141 to assist in resolving a dispute; and
  1. (b)
    the dispute is about—
  1. (i)
    whether the WHS entry permit holder has a right to enter the workplace under division 2 or 3; or
  1. (ii)
    whether section 119 or 122 has been complied with in relation to notice of the entry or purported entry.

Note—

This section does not apply if the dispute is about rights the WHS entry permit holder may exercise while at the workplace under division 2 or 3.

  1. (2)
    The inspector may—
  1. (a)
    decide the matter mentioned in subsection (1)(b)(i) or (ii); and
  1. (b)
    if the inspector is reasonably satisfied the WHS entry permit holder has a right of entry under division 2 or 3—give the person conducting the business or undertaking a direction, in writing, to immediately allow the WHS entry permit holder to enter the workplace under a stated provision of division 2 or 3.

Note—

The commission may review a decision made under subsection (2) in dealing with a dispute under subdivision 2—see section 142A.

  1. (3)
    A direction under subsection (2)(b) must state—
  1. (a)
    that the inspector is reasonably satisfied the WHS entry permit holder has a right to enter the workplace under division 2 or 3; and
  1. (b)
    the reasons the inspector is reasonably satisfied about the right to enter.
  1. (4)
    A person given a direction under subsection (2)(b) must comply with it.

WHS civil penalty provision.

Maximum penalty—100 penalty units.

  1. (5)
    This section does not limit the powers of the inspector under this Act.

Example of powers of the inspector—

the inspector’s power to issue a notice under part 10

  1. [17]
    The magistrate found there was no direction by the industrial inspectors under s 141A because the employer would not give the inspectors information they required Mr James to give them.  The magistrate did not accept that the facts that Mr James objected to the applicants entering the workplace and the inspectors had not given a direction under s 141A had the effect that the lawful entry of the applicants became unlawful.  The magistrate accepted the arguments for the applicants that it would defeat the purpose of s 11(3) to adopt a narrow construction under which it applied only to entry to premises and that the prosecution could not prove beyond reasonable doubt that the applicants’ presence was unlawful.
  2. [18]
    In Rafter DCJ’s reasons for allowing the appeal to the District Court, his Honour referred to the principle of legality articulated in Coco v The Queen[9] (most relevantly, that “Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakeable and unambiguous language”).  His Honour also referred to an observation by the Full Court of the Federal Court in Australian Building and Construction Commissioner v Powell[10] that “provisions as to entry on to work sites … should be construed conformably with the language used by Parliament practically and with an eye to commonsense so that they can be implemented in a clear way on a day-to-day basis at work sites”.  Rafter DCJ quoted Barwick CJ’s statement in Benning v Wong[11] that “a statute only authorises those acts which it expressly nominates and those acts and matters which are necessarily incidental to the acts so expressly authorised or to their execution”.  Rafter DCJ considered it a surprising consequence of the magistrate’s “broad interpretation” of s 11(3) of the Summary Offences Act that, where the right of a WHS entry permit holder to remain at a workplace was disputed, the person nevertheless would be entitled to remain until the close of business.  After referring to ss 141 and 141A of the Work Health and Safety Act, Rafter DCJ observed that a “very clear legislative intent would be required to confer upon entry permit holders a right to remain at a workplace notwithstanding the existence of a dispute in relation to the purported exercise of the right to enter.”  In Rafter DCJ’s view, the argument for the applicants which the magistrate adopted “ignores the rights of the occupier”.
  3. [19]
    Rafter DCJ referred to the following passage in Kuru v New South Wales:[12]

“First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter.  Secondly, except in cases provided for by the common law and by statute, police officers have no special right to enter land.  And … an authority to enter land may be revoked and that, if the authority is revoked, the entrant no longer has authority to remain on the land but must leave as soon as is reasonably practicable.”

  1. [20]
    Rafter DCJ considered that the applicants had a right under s 142(4)(b)(i) of the Work Health and Safety Act to apply to the Industrial Commission to deal with a dispute about the exercise or purported exercise of a right of entry and the Industrial Commission possessed power under s 142(1) to deal with a dispute about the right to remain on premises, including an issue under s 117 in relation to whether the WHS entry permit holder reasonably suspected that a contravention had occurred or was occurring.
  2. [21]
    Section 142 provided:

“(1) The commission may deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act (including a dispute about whether a request under section 128 is reasonable).

  1. (2)
    The commission may deal with the dispute in any way it thinks fit, including by means of mediation, conciliation or arbitration.
  1. (3)
    If the commission deals with the dispute by arbitration, it may make 1 or more of the following orders –
  1. (a)
    an order imposing conditions on a WHS entry permit;
  1. (b)
    an order suspending a WHS entry permit;
  1. (c)
    an order revoking a WHS entry permit;
  1. (d)
    an order about the future issue of WHS entry permits to 1 or more persons;
  1. (e)
    any other order it considers appropriate.
  1. (4)
    The commission may deal with the dispute –
  1. (a)
    on its own initiative; or
  1. (b)
    on application by any of the following to whom the dispute relates –
  1. (i)
    a WHS entry permit holder;
  1. (ii)
    the relevant union;
  1. (iii)
    the relevant person conducting a business or undertaking;
  1. (iv)
    any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise the right of entry;
  1. (v)
    any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit holder;
  1. (vi)
    the regulator.
  1. (5)
    In dealing with a dispute, the commission must not confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit holder under this part.
  1. (6)
    A person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 2016, chapter 11, part 6.

Note –

See the Industrial Relations Act 2016, chapter 11, part 6.

  1. [22]
    Rafter DCJ observed that the applicants could commence proceedings in the Federal Court or Federal Circuit Court seeking appropriate declarations, injunctions and penalties and “[t]he fact that the [applicants] may be inconvenienced by having to take steps to enforce their rights pursuant to s 142 WHS Act is not a reason for extending the scope of operation of the right of entry.”  Rafter DCJ referred to evidence given by Mr James that “he denied “further entry” to the [applicants] because he believed there were no “relevant” workers on the site and the entry notices “were very general in their nature””.  After Mr James did not comply with a request by one of the Workplace Health and Safety Queensland inspectors to provide the names, contact details and job descriptions of all employees, notwithstanding that the inspector warned Mr James that hindering and obstructing an inspector may constitute an offence, the inspector told the applicants that the inspectors “were unable to assist with their entry … and were unable to determine the likelihood of the potential eligibility of people in the workplace”.  Rafter DCJ referred to the facts that the applicants remained on the premises for more than three hours after they had entered it at about 7.40 am, the police officers had arrived at about 8.50 am, the inspectors had arrived at about 9.00 am, and during that time the applicants “were not actually engaged in inspections or consultations provided for in s 118”.
  2. [23]
    Rafter DCJ concluded:

“The broad interpretation of the immunity in s 11(3) Summary Offences Act would have the result that the [applicants] would have been able to remain on the premises, at least until the close of business.  The fact that Mr James may have hindered or obstructed the [applicants] … did not entitle them to remain on the premises in circumstances where a dispute arose in relation to the exercise of rights under s 118 WHS Act, and they were asked to leave.”[13]

  1. [24]
    In my respectful opinion the Magistrates Court’s decision to uphold the no-case submission and dismiss the charges against the applicants was correct.
  2. [25]
    The issue whether the applicants’ conduct in remaining at the workplace was authorised under ss 117 and 118 and therefore lawful was admittedly raised upon the evidence adduced in the Magistrates Court.  The onus was upon the prosecution to prove that the conduct was not authorised by ss 117 and 118.
  3. [26]
    As Dowsett and Collier JJ recorded in Ramsay v Menso,[14] s 117 of the Work Health and Safety Act confers an entitlement upon a permit holder to enter premises where “the person is a permit holder; the person reasonably suspects a breach of the WHS Act; and the reasonable suspicion relates to a worker who is a member or who is eligible to be a member of the permit holder’s organisation”.  An effect of the admission that the applicants lawfully entered the workplace under s 117 is that the prosecution case must be assessed upon the premise that each of the conditions upon which s 117 operates was satisfied in each case.  That is consistent with how the prosecution case was particularised and run in the Magistrates Court.
  4. [27]
    Having regard to the principle of legality, ss 117 and 118 arguably require for their continuing operation after a WHS permit holder has lawfully entered a workplace that the permit holder continues to hold the suspicion described in s 117 and remains at the workplace for the purpose of inquiring into the suspected contravention described in s 117.  As Rafter DCJ observed, Mr James gave evidence that he disputed the basis of the entry by the applicants.[15]  That evidence was to the effect that he believed there was no contravention such as is described in s 117.  Consistently with the particulars of the prosecution case and the admission that the applicants were authorised by s 117 to enter the workplace, the prosecution did not rely upon Mr James’ evidence as proof that any of the applicants did not hold a reasonable suspicion that there was a contravention of the kind described in s 117.  Nor did the prosecution allege or adduce any evidence that could justify a finding that, contrary to the evidence of the applicants’ conduct and statements while they were at the workplace, any of the applicants abandoned their original purpose of conducting an inquiry into the suspected contravention.  In this Court the respondent did not submit that the evidence adduced in the prosecution case might allow for any such finding.
  5. [28]
    It is correct, as Rafter DCJ also observed, that during the time the applicants remained at the premises they were not actually engaged in inspections or consultations provided for in s 118 of the Work Health and Safety Act.  It does not follow that they did not continue to suspect a contravention or that they abandoned their original purpose of conducting an inquiry.  Upon the evidence, the time the applicants remained at the premises without actually conducting an inquiry was occupied by the applicants’ attempts to persuade Mr James to cooperate, the calling of the police, the applicants waiting until police arrived, the applicants seeking the assistance of the industrial inspectors, the inspectors’ attempt to obtain Mr James’ cooperation, and the applicants’ attempts to persuade the police officers that they were entitled to remain at the workplace to conduct their proposed inquiry.
  6. [29]
    Putting that explanation aside, in a case in which the prosecution did not allege or adduce evidence to prove that any of the expressed conditions of the operation of ss 117 and 118 was not fulfilled, the respondent’s argument did not explain how the delay might have resulted in the extinguishment of statutory rights to be at the workplace conferred upon the applicants by those sections.
  7. [30]
    In Coco v The Queen,[16] Mason CJ, Brennan, Gaudron and McHugh JJ observed:

“Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language.  Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct.  But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended.”

  1. [31]
    As Rafter DCJ accepted, [17] the right of entry conferred by s 117 clearly allows an entry permit holder to remain at a workplace for the purpose of conducting the inquiries provided for in s 118.  The right to remain for that purpose is at least implicit in the grant of authority to a WHS permit holder under s 117 to enter for the purpose of conducting an inquiry, and it is expressed in the grant of authority to such a permit holder under s 118(1) to do all or any of the specified things which constitute the inquiry referred to in s 117 “[w]hile at the workplace under this division”.
  2. [32]
    Sections 117 and 118 are interrelated and must be read together.  Those sections clearly express in unmistakable and unambiguous language that, if a WHS entry permit holder reasonably suspects that a contravention of the Work Health and Safety Act that relates to or affects a relevant worker has occurred or is occurring, that permit holder may enter and remain at the workplace for the purpose of inquiring into the suspected contravention in the ways described in s 118.  The statutory language is not open to a construction under which the rights conferred upon the WHS permit holder are exercisable only with the consent of the occupier.  Such a construction also would be inconsistent with the purpose of the Act and the statutory context.
  3. [33]
    The object of the Act is set out in s 3, most relevantly for present purposes in s 3(1)(a) and s 3(2):

“(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 –

  1. (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 particular types of substances or plant; and

  1. (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 risk arising from work or from particular types of substances or plant as is reasonably practicable.”
  1. [34]
    Section 14A of the Acts Interpretation Act 1954 (Qld) requires that an interpretation that will best achieve the purpose of the Work Health and Safety Act is to be preferred to any other interpretation.  That requirement would not be fulfilled by implying that the rights conferred upon WHS entry permit holders by ss 117 and 118 are qualified by a requirement to obtain the consent of the occupier.
  2. [35]
    Nor can an implication qualifying those rights be drawn from ss 141A or 142 of the Act.  Each of those sections operate upon the premise that any right of a WHS entry permit holder to enter a workplace is attributable to a different provision of the Act: see in particular s 141A(2)(b) (“a right of entry under division 2 or 3”) and s 142(1) (“a right of entry under this Act”).  Neither section purports to qualify the statutory provision which created the relevant right.  An inability of an industrial inspector to be reasonably satisfied a WHS entry permit holder has a right of entry for the purposes of s 141A(2)(b) is not to be equated with a decision that there was no such right of entry.  No provision in the Act suggests that an omission by a WHS entry permit holder to apply to the Industrial Commission pursuant to s 142(4)(b)(i) is material to the resolution of the question whether the permit holder continues to have the rights which accrued upon satisfaction of the conditions expressed in ss 117 and 118.
  3. [36]
    No doubt the applicants (in common with other interested persons, including the occupier of the workplace) could bring a proceeding in a court to resolve an impasse at the workplace such as that which was described in the evidence in this case.  That entitlement also could not justify reading into the Act an implied qualification upon the effect of the unambiguous language of ss 117 and 118.
  4. [37]
    To derive from any of the provisions of the Act upon which the respondent successfully relied in the District Court an implication qualifying the rights of a WHS entry permit holder under ss 117 and 118 also would not be the interpretation that will best achieve the purpose of the Work Health and Safety Act expressed in s 3.  An effect of such an implication is that a WHS entry permit holder who is validly authorised to enter a workplace to conduct an inquiry into a suspected contravention would risk prosecution for trespass if an occupier delays the inquiry by wrongly contending that the permit holder is not entitled to remain at the workplace.  That would be calculated to deter permit holders from carrying out functions given to them by the Act.  The suggested remedies of applying to an Industrial Inspector or the Industrial Commission, or commencing litigation, would delay inquiries by WHS entry permit holders who are validly authorised to conduct such inquiries.
  5. [38]
    Nor are any of the suggested statutory implications consistent with the scheme of the Act.  Consistently with the rights conferred by ss 117 and 118 being “free standing”, as they were described in the Full Court of the Federal Court,[18] the issue of WHS entry permits is carefully regulated, such permits must be recorded on a register available to the public, and the exercise of those rights is expressly qualified in many ways.
  6. [39]
    Such a permit may be issued only to a union official who has satisfactorily completed prescribed training and holds or will hold either an entry permit under the Fair Work Act or an industrial officer authority (ss 131, and 134).  In deciding whether to issue the permit the industrial registrar must take into account the object of the Act and “the object of allowing union right of entry to workplaces for work health and safety purposes” (s 132).  Permits remain in effect for a term of three years (s 136).  Sections 138 – 140 empower the Industrial Commission to revoke a WHS entry permit upon application by the regulator, the relevant person conducting a business or undertaking, any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise a right under Part 7, and any other person affected by the exercise or purported exercise of a right under Part 7 by a WHS entry permit holder, if various conditions are satisfied, including that the permit holder has contravened any condition of the permit, has acted or purported to act in an improper way in the exercise of any right under the Act, and that in exercising or purporting to exercise a right under Part 7 the permit holder has intentionally hindered or obstructed a person conducting the business or undertaking or workers at a workplace.  The industrial registrar is required to keep available for public access an up to date register of WHS entry permit holders (s 151).
  7. [40]
    The exercise of rights under ss 117 and 118 is further regulated by the following civil penalty provisions:
    1. (a)
      Section 123: a WHS entry permit holder must not contravene a condition imposed on the WHS entry permit.  (Such conditions may be imposed by the industrial registrar under s 135).
    2. (b)
      Section 124: a WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act or an industrial officer authority.
    3. (c)
      Section 125: a WHS entry permit holder must, at all times that he or she is at a workplace under a right of entry under division 2 or 3, have his or her WHS entry permit and photographic identification available for inspection by any person on request.
    4. (d)
      Section 126: a WHS entry permit holder may exercise a right under division 2 or 3 only during the usual working hours at the workplace.
    5. (e)
      Section 127: a WHS entry permit holder may exercise a right of entry to a workplace only in relation to the area of the workplace where the relevant workers work or any other work area that directed affects the health or safety of those workers.
    6. (f)
      Section 128: a WHS entry permit holder must not exercise a right of entry to a workplace under division 2 or 3 unless he or she complies with any reasonable request by the relevant person conducting a business or undertaking or the person with the management or control of the workplace to comply with any work health and safety requirement that applies to the workplace and any other legislated requirement that applies to that type of workplace.
    7. (g)
      Section 129: a WHS entry permit holder must not enter any part of a workplace that is used only for residential purposes.
    8. (h)
      Section 146: a WHS entry permit holder exercising, or seeking to exercise, rights under Part 7 must not intentionally and unreasonably delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in an improper way.
  8. [41]
    The enactment of those express qualifications upon the rights of WHS entry permit holders militates against acceptance of the proposition that the quite different qualifications upon those rights required by the respondent’s arguments may be read into ss 117 and 118.
  9. [42]
    The respondent referred to ss 144 and 145.  Section 144 provides that a person must not, without reasonable excuse, refuse or unduly delay entry into a workplace by WHS entry permit holder who is entitled to enter the workplace under Part 7.  Section 145 provides that a person must not intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or in exercising any rights at a workplace under Part 7.  If an occupier (or other person) has a reasonable excuse under s 144, or does not act intentionally and unreasonably under s 145, such a person may not be convicted of an offence under those sections.  Those are qualifications only upon the liability for a civil penalty of a person who acts in any of the specified ways.  They could not justify an implication that, notwithstanding the fulfilment of the conditions of the rights given to a WHS entry permit holder by ss 117 and 118, those rights may cease to exist in circumstances other than those expressed in the Act.  Such an implication would be inconsistent with the unambiguous language of ss 117 and 118, incompatible with the expressed object of the Work Health and Safety Act, and incoherent with the scheme of the Act.
  10. [43]
    The evidence in the prosecution case was incapable of proving beyond reasonable doubt that the applicants remained at the site unlawfully.  The charges were rightly dismissed by the Magistrates Court for that reason.
  11. [44]
    In relation to s 11(3) of the Summary Offences Act, Rafter DCJ referred to the statements in the explanatory note to the Summary Offences Bill 2004 (Qld) that s 11(3) was added to the Summary Offences Act to ensure that there was no conflict with the provisions of the Industrial Relations Act 1999 (Qld) and the Workplace Relations Act 1966 (Cth), and that:

“The latter Acts provide lawful authority for an authorised industrial officer to enter a workplace to carry out a function the officer may perform under those Acts.  Clause 11 of the Bill relates to trespass.  Although the clause requires that an entry must be unlawful before it constitutes a trespass, the amendment removes any doubt that there could be conflict between the Bill and the Acts.”

  1. [45]
    The text of s 11(3) and its purpose are inconsistent with it being construed in a way that would cut across the defined meaning of “unlawfully” in s 11(2) in a way that would render unlawful conduct that was authorised by the Work Health and Safety Act.  Because I would hold that the charges were correctly dismissed by the Magistrates Court upon the basis already mentioned, it is not necessary for me to decide whether s 11(3) also justified the dismissal of the charges.  I would mention only my view that, taking into account the purpose of the provision articulated in the explanatory memorandum, the provision in s 11(3) that s 11 “does not prevent an authorised industrial officer entering a workplace in accordance with the terms of the person’s appointment as an authorised industrial officer” is apt to confer an immunity for such an officer who, after lawfully entering a workplace, remains at the workplace, if that conduct accords with the terms of that person’s appointment.

Costs

  1. [46]
    The remaining ground of the application for leave to appeal contends that the District Court erred in failing to hold that the proceeding at first instance was attended by special difficulty, complexity or importance within the meaning of s 158B(2) of the Justices Act 1886 (Qld), such that the higher schedule of costs should be applied.
  2. [47]
    The applicant’s argument under that ground raised a question of principle concerning the approach of an appellate court in an appeal against the exercise of the discretion under that subsection.  The identification of the correct approach involves an issue of principle of importance for future decisions.  For that reason, and because there is substance in the appellants’ argument, it is appropriate to grant leave to appeal upon this ground.
  3. [48]
    Under s 158A(1) of the Justices Act, where a complaint is dismissed an order for costs in favour of a defendant against a complainant police officer may be made only if the magistrate is satisfied that it is proper that the order for costs should be made.  In the appeal to the District Court the respondent did not challenge the magistrate’s decision to make an order for costs against the complainant police officer in this case.  The challenge was only to the exercise of the discretion under s 158B(2) of the Justices Act to award costs above the scale of costs in a schedule in the applicable regulation.
  4. [49]
    Section 158B of the Justices Act provides:

“(1) In deciding the costs that are just and reasonable for this division, the justices may award costs only –

  1. (a)
    for an item allowed for this division under a scale of costs prescribed under a regulation; and
  1. (b)
    up to the amount allowed for the item under the scale.
  1. (2)
    However, the justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.”
  1. [50]
    The magistrate considered that it was appropriate to allow a higher amount for costs under s 158B(2) for these reasons: the matter was significant for the applicants because of their role as union officials; it was an important matter because of the interaction between police, a government body, the complainant, and the applicants;  it was a complicated matter; and it was very complicated for the interplay of State and Commonwealth legislation.
  2. [51]
    It should be noted that at the hearing before the magistrate, the prosecution advanced a detailed argument about what was submitted to be an inconsistency between Commonwealth legislation and State legislation.  That argument was ultimately abandoned and it was not revived on appeal.
  3. [52]
    In the District Court, the applicant’s notices of appeal contended that the magistrate had erred in the exercise of a discretion to award costs in an amount higher than scale allowed in accordance with s 158B(2) of the Justices Act.  Rafter DCJ accepted that the case involved more significant issues than most cases of trespass but concluded that this did not “necessarily” mean that it involved special difficulty, complexity or importance.[19]  Rafter DCJ cited authority[20] for rejecting the proposition that a case could be regarded as involving special difficulty or complexity simply because the applicable legislation was complex.  His Honour accepted that a conviction for an offence of trespass might be relevant to a decision by the Fair Work Commission whether it was satisfied that the applicants were fit and proper persons to hold entry permits[21] but observed that this was only one of the factors to be considered by the Fair Work Commission and did not mean that the case was of special difficulty, complexity or importance.  After referring to the fact that the respondents were charged with a single offence of trespass and identifying the eight prosecution witnesses and the subject matters of their evidence, Rafter DCJ acknowledged that the legislative framework certainly made the case somewhat more difficult than other cases of trespass but expressed the opinion that the case did not involve special difficulty, complexity or importance.  His Honour concluded that the magistrate erred in concluding that an amount for costs above the scale in the Justices Regulation was just and reasonable.
  4. [53]
    In Baker v The Queen,[22] to which Rafter DCJ referred, Gleeson CJ observed of legislation that requires courts to find “special reasons” or “special circumstances” as a condition of the exercise of a power that “[t]his is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition.”  The evaluative nature of the circumstances described in s 158B(2), the use of the word “satisfied”, and the criterion of the power to allow a higher amount that it is “just and reasonable”, compel the conclusion that a decision to allow a higher amount for costs is a discretionary decision, the correctness of which could be challenged on appeal only by showing an error in the decision making process.[23]
  5. [54]
    The errors that justify appellate correction in such as case are identified in House v The King.[24]  Rafter DCJ did not identify an error of that kind.  His Honour’s reasons convey that he found error upon the basis that his own evaluation of the question whether a special difficulty, complexity or importance of the case made an allowance for a higher amount for costs just and reasonable, differed from the Magistrates Court’s evaluation.  The mere fact that an appellate court would exercise a discretion differently from the way in which it was exercised at first instance is insufficient to justify appellate interference in the first instance decision.
  6. [55]
    In my respectful opinion it was within the discretion of the magistrate to find that a higher amount for costs was just and reasonable having regard in particular to the importance of the case.  In the context of a national scheme of which the Work Health and Safety Act forms part, resolution of the issues raised in the prosecution case reasonably could be regarded as being of special importance such as to justify an award of costs in an amount that exceeded the amount of costs calculated according to the prescribed scale.  The respondent did not submit that if the Court formed that view the Court should review the quantum of costs awarded by the Magistrates Court.

Proposed orders

  1. [56]
    I would make the following orders in each applicant’s application for leave to appeal:
  1. (a)
    Grant leave to appeal.
  1. (b)
    Allow the appeal.
  1. (c)
    Set aside the orders made in the District Court.
  1. (d)
    The respondent is to pay the applicant’s costs of the appeal to the District Court and the costs of the application for leave to appeal and the appeal to this Court.
  1. [57]
    McMURDO JA:  I agree with Fraser JA.
  2. [58]
    BRADLEY J:  I agree with the orders proposed by Fraser JA and with his Honour’s reasons.

Footnotes

[1] May v O'Sullivan (1955) 92 CLR 654 at 658.

[2] Doney v The Queen (1990) 171 CLR 207 at 215; R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220 at [7].  Rafter DCJ also referred to Goli v Blue 11 Pty Ltd [2018] QDC 108 at [46] (Porter QC DCJ).

[3] Transcript 29 April 2019 at 1 – 6.

[4] These facts are set out in a document the parties agreed upon during the hearing of the appeal in the District Court.

[5] The transcript records the name of the witness as John Escuna.  However, his surname is spelt Azcume in the written submissions.

[6] Reasons [12] – [18].

[7] Prosecution written submissions in response to the defendant’s “No Case Answer” submission, para 19.

[8] Prosecution written submissions in response to the defendant’s “No Case Answer” submission, para 31.

[9] (1994) 179 CLR 427 at 435 – 436.

[10] (2017) 251 FCR 470 at 474 – 475 [15].

[11] (1969) 122 CLR 249 at 256.

[12] (2008) 236 CLR 1 at 14 – 15.

[13] Reasons [74].

[14] (2018) 260 FCR 506 at 513 [28].

[15] Reasons [65].

[16] (1994) 179 CLR 427 at 435 – 436.

[17] Reasons [53].

[18] Ramsay v Menso (2018) FCR 506 at 516 [43] (Dowsett and Collier JJ).

[19] Rafter DCJ cited Blackwood v Hinder [2007] QDC 239 at [176].

[20] Cullinan v McCahon [2014] QDC 120 at [25].

[21] Fair Work Act 2009 (Cth), s 513(1)(c)(i).

[22] (2004) 223 CLR 513 at 523 [13].

[23] See Cole and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205 [20] – [21] (Gleeson CJ, Gaudron and Hayne JJ) and 225 [75] (Kirby J).

[24] (1936) 55 CLR 499 at 505.

Close

Editorial Notes

  • Published Case Name:

    Seiffert & Ors v Commissioner of Police

  • Shortened Case Name:

    Seiffert v Commissioner of Police

  • MNC:

    [2021] QCA 170

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Bradley J

  • Date:

    20 Aug 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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