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Till v Work Health and Safety Queensland – Office of Industrial Relations, Queensland Treasury Department QCATA 127
Till v Work Health and Safety Queensland – Office of Industrial Relations, Queensland Treasury Department & Anor  QCATA 127
Work Health And Safety Queensland – Office Of Industrial Relations, Queensland Treasury Department
Sunshine Coast Regional Council
On the papers
26 August 2016
IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
APPEAL – LEAVE TO APPEAL – ADMINISTRATIVE REVIEW – where the applicant applied to review a decision of Work Health and Safety Queensland not to investigate – whether there was a reviewable decision under Work Health and Safety Act 2011 (Qld) or Work Health and Safety Regulations 2011 (Qld) – whether the tribunal has jurisdiction – whether the application should be dismissed for lack of substance – whether the tribunal failed to take into account a relevant consideration
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17, 21, 32, 47, 139(4)
Work Health and Safety Act 2011 (Qld) ss 191, 223, Schedule 2A
Work Health and Safety Regulation 2011 (Qld) r 676
Re Tasmanian Ferry Services Limited and Secretary, Department of Transport and Communications  AATA 376
Semunigus v The Minister for Immigration & Multicultural Affairs  FCA 422
APPEARANCES and REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
REASONS FOR DECISION
- The applicant, Dr Till, seeks to appeal the tribunal’s on the papers decision in GAR 201-15 to dismiss his application to review a Work Health and Safety Queensland (Department) not to investigate his concerns about dogs being allowed off leash near his home.
- The member dismissed the application because it was not a “reviewable decision” within the meaning of the Work Health and Safety Act 2011 (Qld) (WHS Act) or Work Health and Safety Regulation 2011 (Qld) (WHS Regulation).
- The applicant submits that the tribunal at first instance:
- failed to consider a Work Health and Safety Queensland letter dated 21 July 2015, among other documents, in which he was advised that he could request an external review of the decision;
- failed to provide written reasons for the decision, and other relevant documents, within a reasonable period of not more than 28 days after the decision-maker is given a copy of the application for review, as required by s 21(2) QCAT Act;
- failed to consider the erroneous nature of the inspection report by Workplace Health and Safety. The inspection report noted there were no breaches of the WHS Act, but the applicant alleges it listed the wrong location of the workplace facility. It is argued that the tribunal below did not confirm or deny receipt of this report, which is inconsistent with usual practices and procedures in s 32(3) QCAT Act whereby the public should have access to matters in the proceeding as if the proceeding had been heard before the tribunal with all parties attending;
- erred by failing to consider the fact that a decision not to issue an improvement is a “reviewable decision” pursuant to Schedule 2A Item 7 WHS Act;
- erred in confusing the “lacking substance” ground of dismissal with want of jurisdiction.
The respondents’ contentions
- The Department asserts that:
- the applicant should not be able to abuse s 21(2) QCAT Act to procure disclosure to documents to which he is not otherwise entitled, and any access to such documents should be sought through the Right to Information Act 2009 (Qld);
- section 21(2) was not breached in any event because the application for external review did not disclose any decision which was “reviewable”;
- the applicant purports to substitute the decision in respect of which he sought review with a decision not to issue an improvement notice under Schedule 2A Item 7 of the WHS Act. This latter decision was not raised in the initial course of proceedings, which was concerned with a decision by the delegate of the regulator of the WHS Act not to assess compliance or take enforcement action, in connection with the designation and operation of a leash free dog area at Mount Coolum beach;
- the decision not to issue an improvement notice was not at law a refusal, but rather a failure, which means it cannot be reviewed; and that the decision-maker did not make a conscious decision to refuse to issue such a notice after having formed a reasonable belief a person was contravening a provision of the Act in accordance with s 191(1) of the WHS Act in support of this analysis in effect, states that the making of a decision requires engagement in a mental process and translating that conclusion into a decision by means of an over-act that gives finality to that conclusion;
- if the decision was a refusal rather than a failure, that would be a reviewable decision since s 223(2)(g) WHS Act states that unless a contrary intention appears, a reference in Schedule 2A to a decision includes a reference to refusing to do any other act or thing;
- even then, the applicant, a mere member of the public, is not an eligible person to review under Item 7 of Schedule 2A, which sets out 4 classes of eligible persons:
- The person to whom the notice was issued.
- A person conducting a business or undertaking whose interests are affected by the decision.
- A worker whose interests are affected by the decision.
- A health and safety representative who represents a worker whose interests are affected by the decision.
- The respondent Council makes a further submission that the applicant’s ‘failure to consider’ ground cannot found his appeal because the matter was resolved in the preliminary stage by recognising that the purported decision was not a “reviewable decision” within the WHS Act or WHS Regulation.
Was there a reviewable decision?
- I find that the applicant’s argument that the tribunal failed to take into account relevant considerations must fail because those considerations were not relevant. One of the key preliminary issues was ascertaining whether the decision was a “reviewable decision” within the WHS Act or Regulation. Together, Schedule 2A of the WHS Act and r 676 of the Regulation define “reviewable decision”.
- Section 17(1) QCAT Act states that the tribunal’s review jurisdiction is that conferred on it by an enabling Act to review a decision made or taken to have been made by another entity under that Act. That enabling Act is the WHS Act; s 229 of which provides that an eligible person may apply to the external review body (this tribunal) for an external review of a reviewable decision made by the regulator or a decision made (or taken to have been made) on an internal review.
- Schedule 2A WHS Act lists the following as reviewable decisions:
- decision following failure to commence negotiations
- decision in relation to training health and safety representative
- decision relating to health and safety committee
- decision on review of provisional improvement notice
- forfeiture of thing
- return of seized things
- issue of improvement notice
- extension of time for compliance with improvement notice
- issue of prohibition notice
- issue of a non-disturbance notice
- issue of subsequent notice.
- Regulation 676 of the WHS Regulations provides the following types of reviewable decisions:
- High risk work licenses
- Accreditation of assessors
- License for demolition work
- Registration of Plant Designs
- Registration of Plant
- General Induction Training (Construction)
- Hazardous chemicals and lead
- Asbestos removal licenses and asbestos assessor licenses
- Major hazard facilities
- Initially, the applicant sought to contest a purported decision by the delegate of the regulator not to assess compliance or take enforcement action, in connection with the designation and operation of an off-leash dog area at Mount Coolum beach. The tribunal was correct in finding that this was not a reviewable decision pursuant to Schedule 2A of the WHS Act or r 676 of the Regulation.
- The member was right to dismiss the original application because, in the absence of a reviewable decision, it lacked substance and any review would be ultra vires. The mere fact “lacking in substance” is not specifically defined in the QCAT Act to include a clear case of no jurisdiction is irrelevant; the scenario is captured by the phrase.
- The applicant seeks to challenge another purported decision not to issue an improvement as a “reviewable decision” pursuant to Schedule 2A Item 7 of the WHS Act – apparently in substitution of the previous purported decision he raised.
- Section 191 of the WHS Act deals with improvement notices, and states that if an inspector reasonably believes a person is contravening (or has contravened) a provision of the WHS Act, the inspector may issue an improvement notice. The notice may require the person to remedy the contravention, prevent one from occurring, or remedy the things causing the contravention. A decision refusing to issue an improvement is reviewable pursuant to s 223(2)(g) of the WHS Act.
- In light of the above provisions, it is necessary to consider whether (a) the decision was a reviewable one and (b) the applicant is an eligible person.
- If the purported decision were indeed a refusal to issue an improvement notice, it would be reviewable by virtue of Schedule 2A Item 7 and ss 191 and s 223(2)(g) of the WHS Act. However, a refusal to issue such a notice must be distinguished from a failure to issue it, because s 223(2)(g) does not go so far as to make the latter reviewable.
- By analogy, the Administrative Appeals Tribunal in Re Tasmanian Ferry Services Limited and Secretary, Department of Transport and Communications, s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth) did not extend to a failure to make a decision as distinct from a refusal to make an order or determination. The respondents again rely on Semunigus where Finn J noted that the making of a decision involves engaging in a mental process, leading to an overt act which gives finality to a decision.
- Given the subject matter of the present case, it is clear a conscious decision to refuse to issue such a notice in circumstances where the inspector had formed a reasonable belief pursuant to s 191 WHS Act that a person is contravening a provision of the WHS Act or has contravened a provision such that it makes it more likely that the contravention will continue or be repeated was required. As the applicant has not demonstrated this, the decision is not of the reviewable kind contemplated by s 223(2)(g) WHS Act.
- In any case, even if it was a reviewable decision on the ground that the non-issuance of the improvement notice was a refusal to issue rather than a failure to issue, the applicant would not be eligible under column 3 of item 7 in Schedule 2A WHS Act. He was not issued a notice. His submission that the first class of person includes someone to whom a notice was not issued is incongruous with the language used.
- The mere fact a refusal to make a decision might be a reviewable decision under s 223(2)(g) does not render a person to whom a notice was not issued an eligible person. This item only covers the situation where a notice was issued. Classes 2–4 in column 3, which refer to “decision”, cover the situation of the kind envisaged by s 223(2)(g) in this case; that is, where there has been a refusal to issue an improvement notice. The applicant, an aggrieved member of the public, is not a person conducting a business or undertaking, or a worker, whose interests are affected by the decision, nor a health and safety representative. He does not have standing.
- Lastly, the applicant appears to claim the decision should be overturned because the Department failed to provide to the tribunal a written statement of reasons, and other relevant documents, within a reasonable period of not more than 28 days, in accordance with s 21(2). As set out above, there is no decision disclosed in the external review capable of review by the tribunal. This submission also fails.
- For these reasons, the applicant has not established any ground of appeal.
- The application for leave to appeal or appeal is refused.
- The parties are at liberty to file submissions as to costs.
- Published Case Name:
Liam Till v Work Health and Safety Queensland – Office of Industrial Relations, Queensland Treasury Department and Sunshine Coast Regional Council
- Shortened Case Name:
Till v Work Health and Safety Queensland – Office of Industrial Relations, Queensland Treasury Department
 QCATA 127
26 Aug 2016