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  4. State of Queensland (Darling Downs Hospital and Health Service) v The Regulator under the Work Health and Safety Act 2011 - [2025] QIRC 184

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State of Queensland (Darling Downs Hospital and Health Service) v The Regulator under the Work Health and Safety Act 2011[2025] QIRC 184

State of Queensland (Darling Downs Hospital and Health Service) v The Regulator under the Work Health and Safety Act 2011[2025] QIRC 184

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

State of Queensland (Darling Downs Hospital and Health Service) v The Regulator under the Work Health and Safety Act 2011 [2025] QIRC 184

PARTIES:

State of Queensland (Darling Downs Hospital and Health Service)

(Applicant)

v

The Regulator under the Work Health and Safety Act 2011

(Respondent)

CASE NO:

WHS/2019/143

PROCEEDING:

Application for external review

DELIVERED ON:

18 July 2025

HEARING DATES:

13 July 2020

10 December 2020

MEMBER:

Hartigan DP

HEARD AT:

Brisbane

ORDER:

The Review Decision of the Regulator under the Work Health and Safety Act 2011 is set aside and substituted for a decision to withdraw the Improvement Notice I2024551 ab initio.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – WORK HEALTH AND SAFETY – where Applicant filed application for external review of a decision of the Respondent to issue an improvement notice – where internal reviewable decision stayed pending determination – whether belief held by inspector was reasonable – whether inspector made reasonable inquiries – internal review decision set aside

LEGISLATION:

Work Health and Safety Act 2011 (Qld), s 3,  s 19, s 31, s 33, s 160, s 191, s 192, s 229D, s 229E

CASES:

Dalliston v Taylor & Anor [2015] ICQ 17

George v Rockett (1990) 170 CLR 104

Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002

Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 61

Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No.2) [2019] QIRC 133

APPEARANCES:

Mr C.J. Murdoch KC instructed by DWF Australia for the Applicant

Mr S.A. McLeod KC directly instructed by the Respondent

Reasons for Decision

Introduction

  1. [1]
    The Darling Downs Hospital and Health Service ('the DDHHS') filed an Application for External Review of a decision of the Regulator under the Work Health and Safety Act 2011 ('the Regulator') to issue an improvement notice pursuant to s 191 of the Work Health and Safety Act 2011 (Qld) ('the WHS Act').
  1. [2]
    The DDHHS is the operator of the Jarrowair Unit within the Acute Mental Health Unit located at the Toowoomba Hospital. Following an inspection of the Jarrowair Unit, Inspector John Wilson ('the Inspector') issued Improvement Notice I2024551 ('the Notice') to the DDHHS under s 191 of the WHS Act to remedy an alleged contravention of ss 19(1)(b), (3)(a), 33 of the WHS Act.
  1. [3]
    The site location and the subject matter relevant to the Notice is limited to the moveable furniture within the patient day room and the interview/relatives' room at the Jarrowair Unit.
  1. [4]
    The DDHHS seeks orders, inter alia, that the Notice be set aside and cancelled.
  1. [5]
    A unique feature of this matter is that prior to the matter proceeding to hearing, the DDHHS had already removed and replaced the relevant furniture (the subject of the Notice). Consequently, at the time of the hearing, any hazard, or perceived hazard, identified in the Notice had been eliminated by the removal and, subsequent, replacement of the relevant furniture. 
  1. [6]
    The Regulator submits that as the DDHHS has sought to comply with the Notice it is not apparent why DDHHS would seek to press the application other than to merely assert the Notice should not have been issued in the first place.
  1. [7]
    The DDHHS' submissions acknowledge that the Notice is otiose. Despite this, however, the DDHHS states that it is entitled to press the application on the basis that the Notice ought not to have been issued by the Inspector in the first place.
  1. [8]
    Accordingly, and despite the matters the subject of the Notice having been resolved, it appears that the purpose of this review is limited to the consideration of whether the Inspector was correct to issue the Notice in the first place.

The Notice

  1. [9]
    The Notice provides the following details of the alleged contravention:

On divers unknown dates between a date unknown to me and the 29th day of August 2019 at Toowoomba, the Darling Downs Hospital and Health Service ("DDHHS") [and the State of Queensland by its representative agency, Queensland Health ("State"), concurrently] held a health and safety duty and failed to comply with that duty, in that being a person conducting a business or undertaking you failed to ensure, so far as is reasonably practicable ("SFAIRP"), the health and safety of workers whose activities you influence in carrying out work while the workers are at work in the business or undertaking by failing to provide a work environment without risks to health and safety, contrary to s. 33 and s. 19(1)(b) and (3)(a) of the Act:[1]

  1. [10]
    Within the Notice, the following Directions were issued to the DDHHS advising of the measures to be taken to remedy or prevent the contravention:
  1. Consult, coordinate and cooperate with the State, as may be required, to remedy the likely repeat of the contravention by taking measures to cause the furniture to be fixed to the floor, replaced with soft furnishings or removed to prevent patients from using it to intimidate, threaten or otherwise expose hospital workers to the risk of death, injury or illness, within three (3) working days of the date of the issue of Notice ('Direction One');
  1. Take measures, conjointly with the State, to cause the furniture to be fixed to the floor, replaced with soft furnishings or removed to remedy the likely repeat of the contravention by preventing patients from using the furniture to Intimidate, threaten or otherwise expose hospital workers to the risk of death, injury or illness, within seven (7) working days of the date of issue of this Notice ('Direction Two'); and
  1. Prevent the likely repeat of the contravention in the future by, taking all of the following steps conjointly with the State:
  1. identifying all requests or suggestions for the management of work health and safety in relation to the risks created by potentially violent hospital patients made by workers, or their representatives, at the DDHHS from 1 January 2017;
  1. reviewing all such requests or suggestions by workers, or their representatives;
  1. taking steps to action such requests or suggestions in (3)(b) in accordance with s. 47 to s. 49 of the Act, where the DDHHS and the State has not already done so;
  1. providing a written report to me, or Inspector Donna Heelan, (unless otherwise advised in writing) by email describing each of the requests or suggestions made by workers, or their representatives, identified at 3(a) above and setting out what steps the DDHHS and the State have taken to comply with each element of s. 48(1) in relation to each such request or suggestion made within thirty (30) working days of the date of this Notice; and
  1. provide a report to me, or Inspector Donna Heelan (unless otherwise advised in writing) detailing all requests or suggestions for the management of work health and safety in relation to the risks created by potentially violent hospital patients made by workers or their representatives, together with the steps taken by the DDHHS and the State to manage those requests or suggestions in accordance with s. 47 to 49 of the Act, for the period between the date of issue of this Notice and twelve (12) months after that date. This report must be provided no later than seven (7) days after the last day of the period to which the report relates.

('Direction Three')

  1. [11]
    Upon receipt of the Notice, the DDHHS sought an internal review of the Notice.
  1. [12]
    On internal review, it was found that the stated dates in Directions One and Two were not reasonable and that Direction Three was invalid.
  1. [13]
    Relevantly, the reasons for the internal review directed that the parties make submissions with respect to the compliance dates as follows:

… I am not satisfied the date for compliance with this direction is reasonable … Therefore the Inspector will need to consider the circumstances identified [in the reasons] and consult with the DDHHS if necessary and then provide DDHHS with a new compliance date which complies with s 192(3) of the Act.[2] 

  1. [14]
    Direction Three was set aside on the internal review, on the basis that Direction Three (a) to (e) were invalid and beyond the scope of s 192(2) of the WHS Act.
  1. [15]
    As already noted above, on this external review the DDHHS seeks that the entirety of the Notice be set aside and cancelled.

Grounds of Review

  1. [16]
    The DDHHS seeks a review of the Notice on the following grounds:
  1. The Inspector erred in issuing the Darling Downs Hospital and Health Service the Improvement Notice 12024551 and that decision should be set aside ab initio ('ground one');
  1. The Inspector's belief was not objectively reasonable ('ground two');
  1. The Inspector did not make reasonable inquiries ('ground three'); and
  1. The Improvement Notice was insufficiently particularised and contained Directions which were not objectively reasonable ('ground four').
  1. [17]
    The relevant facts alleged by the DDHHS in the external review application are as follows:
  1. Inspector Wilson alleges that between a date unknown to him and 29 August 2019, within the Jarrowair Unit of DDHHS' Toowoomba Hospital, potentially violent patients who suffer from mental illness had access to moveable and unsecured furniture which could be used as a weapon to threaten and harm hospital workers.
  1. Inspector Wilson describes the patients as a hazard within the meaning of section 18 of the Work Health and Safety Act.
  1. Inspector Wilson states that on 20 and 21 August 2019, in the company of Inspector Haden, several interviews with nursing and clinical staff at the Jarrowair and High Dependency Unit were conducted. During those interviews, workers apparently reported that chairs in the Jarrowair Unit had been used by patients to threaten workers and cause damage to property, namely glass windows and doors. Workers apparently also reported patients had threatened staff by picking up chairs with metal legs, raising the chairs off the ground and holding the chairs in such a way as to threaten workers.
  1. Inspector Wilson alleges DDHHS failed to take immediate steps to ensure so far as is reasonably practicable that the work environment within the Jarrowair Unit was without risk to the health and safety of any person from potential use of moveable furniture by patients, contrary to s 33 and s 19(1)(b) and (3)(a) of the Act.
  1. Inspector Wilson did not make any inquiries as to what measures the Applicant had taken to assess and manage the concerns raised by hospital workers. These were reasonable and necessary in the circumstances. The absence of these inquiries rendered the Inspector's belief unreasonable. Had those inquiries been made, Inspector Wilson would have known, (a) A quote was obtained from Crown Furniture on 8 August 2019 for ballast tables and chairs;(b) The value of the following order was $32,350 for 14 chairs and 6 tables;(c) As the products are manufactured overseas, there can be a lead time of approximately 10 weeks for delivery. The furniture ordered was for the High Dependency Unit first before considered for Jarrowair.
  1. Inspector Wilson, having not completed any risk assessment (or one which has been disclosed) directed DDHHS to cause the furniture to be fixed to the floor, replaced with soft furnishings or removed to remedy the likely repeat contravention by preventing patients from using the furniture to intimidate, threaten or otherwise expose hospital workers to the risk of death, injury or illness.
  1. Inspector Wilson failed to have regard to alternative measures such as ballast furniture. Inspector Wilson also failed to have regard to hygiene issues in a hospital setting and patient physical and clinical needs when making such a direction.
  1. The directions issued by Inspector Wilson failed to have regard to alternative control measures for the stated 'hazard', including but not limited to adequate and appropriate medical treatment and ongoing assessment.
  1. DDHHS was not contravening the Act as alleged.[3]
  1. [18]
    The DDHHS contends that the inspector erred in issuing the Notice and that the decision ought to be set aside ab initio.
  1. [19]
    The DDHHS further argues that Inspector Wilson's failure to make reasonable inquiries has resulted in his ultimate decision to issue the Notice being based on misconception.

Relevant Legislation

  1. [20]
    The main object of the WHS Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces.[4] The WHS Act sets out the means by which it seeks to achieve this object by, inter alia:
  1. 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. providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and
  1. …
  1. promoting the provision of advice, information, education and training in relation to work health and safety; and
  1. securing compliance with this Act through effective and appropriate compliance and enforcement measures; and
  1. ensuring appropriate scrutiny and review of actions by persons exercising powers and performing functions under this Act; and
  1. providing a framework for continuous improvement and progressively higher standards of work health and safety; and
  1. …
  1. [21]
    Section 3(2) of the WHS Act provides that in furthering s 3(1)(a) regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from particular types of substances or plants as is reasonably practicable.
  1. [22]
    The Act defines the term "reasonably practicable" as follows:

18  What is reasonably practicable in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

  1. the likelihood of the hazard or the risk concerned occurring; and
  1. the degree of harm that might result from the hazard or the risk; and
  1. what the person concerned knows, or ought reasonably to know, about—
  1. the hazard or the risk; and
  1. ways of eliminating or minimising the risk; and
  1. the availability and suitability of ways to eliminate or minimise the risk; and
  1. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
  1. [23]
    Section 191 falls within Part 10 entitled "Enforcement measures", Division 1 entitled "Improvement notices" of the WHS Act.
  1. [24]
    Section 191 of the WHS Act provides for the issuing of improvement notices and is in the following terms:

191  Issue of improvement notices

  1. This section applies if an inspector reasonably believes that a person—
  1. is contravening a provision of this Act; or
  1. has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.
  1. The inspector may issue an improvement notice requiring the person to—
  1. remedy the contravention; or
  1. prevent a likely contravention from occurring; or
  1. remedy the things or operations causing the contravention or likely contravention.
  1. [25]
    Section 192 of the WHS Act sets out the information that must be included in an improvement notice and states as follows:

192  Contents of an improvement notice

  1. An improvement Notice must state—
  1. that the inspector believes the person—
  1. is contravening a provision of this Act; or
  1. has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated; and
  1. the provision the inspector believes is being, or has been, contravened; and
  1. briefly, how the provision is being, or has been, contravened; and
  1. the day by which the person is required to remedy the contravention or likely contravention.
  1. An improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates.
  1. The day stated for compliance with the improvement notice must be reasonable in all the circumstances.
  1. [26]
    The Notice alleges the DDHHS has contravened ss 19(1)(b), (3)(a) and s 33 of the WHS Act. Section 19 of the WHS Act provides for the primary duty of care imposed on a person conducting a business or undertaking. Relevantly, ss 19(1)(b) and (3)(a) are in the following terms:

19  Primary duty of care

  1. A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

…

  1. workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

…

  1. Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—
  1. the provision and maintenance of a work environment without risks to health and safety; …
  1. [27]
    Section 33 of the WHS Act establishes a category 3 offence as follows:

33 Failure to comply with health and safety duty—category 3

A person commits a category 3 offence if—

  1. the person has a health and safety duty; and
  1. the person fails to comply with that duty.

Maximum penalty—

  1. for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—500 penalty units; or
  1. for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1,000 penalty units; or
  1. for an offence committed by a body corporate—5,000 penalty units.

Note—

See also the note to section 31(1).[5]

Nature of the Review

  1. [28]
    The parties are largely in agreement with respect to the nature of the review before the Commission.
  1. [29]
    Relevantly, s 229D(2) of the WHS Act requires that "an application for review is to be dealt with by way of rehearing, unaffected by the decision." 
  1. [30]
    In Dalliston v Taylor & Anor,[6] Martin J, the then President of the Industrial Court of Queensland, considered s 246 of the Coal Mining Safety and Health Act 1999 (Qld) ('the Coal Mining Act'), which contained a comparable appeal mechanism to that contained in pt 12 div 3 and 4 of the WHS Act. Martin J determined that:

…section 246 uses a form of words which is more clearly understood as an appeal de novo. An appeal de novo involves a rehearing of the evidence by the appellate court. It is analogous to a new trial.[7]

  1. [31]
    Such an approach has been adopted in other matters before this Commission.[8]

Relevant Background

  1. [32]
    By way of relevant background, Inspector Wilson, along with another inspector from Work Health and Safety Queensland, attended and inspected the Jarrowair Unit during the course of a compliance monitoring and enforcement investigation into the assault of a nurse by a patient at another location within the DDHHS' premises. 
  1. [33]
    The inspectors conducted interviews with nursing and clinical staff within the Jarrowair Unit and various other units.[9] During these interviews, staff advised the inspectors that patients within the Jarrowair Unit (and other units) had previously used chairs within the relevant unit to threaten staff. The staff also advised of other instances whereby patients have used chairs in a violent manner and caused damage to the DDHHS' premises. The records of interview of the staff interviewed were tendered into evidence.[10]
  1. [34]
    During the inspection, a document titled "Occupational Violence and Security Risk Assessment Action Plan" was provided to Inspector Wilson.[11] This document identified that the issue of patients using furniture in a violent and threatening manner in the Jarrowair Unit had been raised by staff members including at a staff meeting with Dr Peter Gillies, Chief Executive of DDHHS and Mr Malcom Greg Neilson, Executive Director of Mental Health for DDHHS following the assault of the nurse.
  1. [35]
    It is relevant to note that the DDHHS does not dispute that at least some of the furniture in the Jarrowair Unit was a hazard that posed a risk. This position is reflected in the Action Plan which is a DDHHS document.
  1. [36]
    The DDHHS contends that it had introduced a suite of control measures to attempt to minimise or eliminate the risk arising from the hazard. It contends that the Inspector did not have proper regard to the control measures that were in place.
  1. [37]
    The DDHHS had also introduced a program to trial in other units and then, if successful, remove and replace the relevant furniture in the Jarrowair Unit.
  1. [38]
    Further, the DDHHS contends that the control measure the Inspector directed to be undertaken in accordance with Direction One, to fix all moveable furniture to the floor, was not reasonably practicable.

Witnesses

  1. [39]
    During the hearing, the DDHHS called Mr Neilson to give evidence.
  1. [40]
    The Regulator called Inspector Wilson.

Mr Neilson's Evidence

  1. [41]
    Mr Neilson gave evidence of the following matters:
  1. the Jarrowair Unit was a 14-bed facility with a staffing ratio of three staff in the morning and afternoon and two staff with a shared supervisor over two units overnight;
  1. patients were ordinarily under medical care and if necessary receiving medication;
  1. if a patient's arousal levels increased, they may be transferred to the High Dependency Unit;
  1. staff have a number of techniques to engage in the care of patients who are exhibiting signs of being bothered and/or anxious which have been taught in de-escalation training, occupational violence training and physical skills training;
  1. prior to admission, a patient undergoes a specialist assessment by the acute care team to determine which unit they would be best placed in;
  1. staff are allocated a personal duress alarm and there is a fixed duress alarm in the nurses' station which are both able to be activated to call for assistance from other staff members and security; and
  1. security staff play a role on varying levels by assisting staff and also responding to duress alarms.
  1. [42]
    Mr Neilson also gave evidence about the furniture used in the relevant rooms which included a variety of tables and chairs used for the dining and lounge suites. As well as, some chairs with arms and other vinyl covered chairs in the interview room.
  1. [43]
    Mr Neilson gave evidence that there was some benefit in the chairs being able to be moved in order to respond to the number of people in the room and/or activities that were being undertaken.
  1. [44]
    Mr Neilson spoke of the furniture replacement program that had been instigated by DDHHS ('the Replacement Program'). Mr Neilson explained the procurement process for replacement furniture in the various units within the Mental Health Unit was an involved process and required varying levels of approval, depending on the quantum of the cost, by the officer with the requisite financial delegation.
  1. [45]
    Mr Neilson was referred, in his evidence, to a proposal document by way of example. He explained that the proposal document identified that the proposed replacement program was to replace the existing furniture with a Ryno brand activity table and Ryno brand chairs.
  1. [46]
    In addition to the financial delegate, Mr Neilson also gave evidence that a number of other managers were required to approve the furniture replacement including the Workplace Health and Safety manager, the Nurse-Clinical Products manager and the Commercial Management and Procurement Division manager.
  1. [47]
    Mr Neilson's evidence was that the initial purchase order related to two other units within DDHHS' Mental Health Unit in order for the furniture to be trialled and, if successful, expanded to include the Jarrowair Unit. Mr Neilson's evidence regarding this was as follows:

Now, you’re aware that the improvement notice in this case relates to Jarrowair as opposed to the HDU. Can you tell the Commission why it was that, as at 30 August, there hadn’t been a purchase of similar furniture for Jarrowair?---Well, I suppose that there’s – it’s not an insubstantial amount of money for a small number of chairs. We want to trial them for effectiveness. I mean, the – they are weighted with sand so they’re difficult to move. They’re hard. They don’t have any arms on them so if you want to get up from a table or if you want to move your chair closer in to the table, that presents some difficulties. And, of course, you can’t please all of the people all the time. And we want staff acceptability to say that this is reasonable and going and purchasing more stuff; is this something that staff think is working for them and what the environment requires.[12]

  1. [48]
    Mr Neilson also gave evidence about a conversation he had with staff following an assault (this assault did not involve the threat and/or use of furniture) and the request for new furniture as follows:

Now, that conversation that you’re referring to, can we just unpack that a bit. You mentioned an incident?---There was an incident in the acute unit - - -

Yes?--- - - - on the – the Friday preceding so that was about the 19th of July.

Yes. And to your knowledge, did that incident involve furniture?---No.

Right. And you mentioned being in the HDU[13] unit and having a conversation with a Mr [redacted]; is that right?---Yeah, the HDU office.

Yes?---There was – post – post that other incident, the – you know, the members of the senior leadership team were coming around several times a day. I mean, it was trying to catch all shifts just to talk to people about how they’re feeling. And – and [redacted] came up and spoke to our chief executive and - - -

In your presence?---Yeah. Yeah. Yeah.

Yes. Yes?---There was a group of us there.

Yeah. And what was the effect of the conversation?---He basically said, "Can we get some new furniture?"

Right. And you understood for where?---A HDU unit.

Right?---Yeah.

And what transpired from that request?---Well, I turned to [redacted], who was the acting nurse unit manager at the time, and said, "[redacted], can you talk to [redacted] about whether we can purchase some more furniture," words to that effect, "the same as we’re going to trial for Yannanda," because it had been – been through the – the hoop, so to speak. And that proceeded from there. I mean, obviously, through all the steps of the bureaucracy and that to – and that’s – I think that transition is where you can see from the order going from 7000 to 30,000.[14]

  1. [49]
    Relevantly, the evidence of Mr Neilson was that the furniture order was extended to include furniture for the High Dependency Unit consistent with the request from the staff member who raised the concern.
  1. [50]
    With respect to the investigation by the Regulator, Mr Neilson's evidence was that he was interviewed by two inspectors, but that Inspector Wilson was not present at his interview. He further says that he was not asked about the relevant control measures on the Replacement Program.
  1. [51]
    Mr Neilson was asked about the Notice and in particular the Direction to fix furniture to the floor. Mr Neilson gave evidence that this Direction was impracticable for the following reasons:
  1. fixing furniture to the floor would make it difficult for people to rearrange the furniture in the course of providing clinical and therapeutic care to the patients;
  1. fixing furniture to the floor would make the furniture immovable and impose a risk if someone was pushed against that furniture; and
  1. fixing furniture to the floor would not be possible because that particular type of furniture used (due to how it was constructed) could not practicably be fixed or secured to the floor.
  1. [52]
    Relevantly, at the time the Notice was issued the Replacement Program had not yet replaced the furniture in the Jarrowair Unit.
  1. [53]
    Mr Neilson's evidence was that following receipt of the Notice the DDHHS removed all of the chairs and replaced them with polycarbonate chairs and joined the tables together while awaiting delivery of the subsequent further orders of replacement furniture.

Inspector Wilson’s Evidence

  1. [54]
    Inspector Wilson's evidence-in-chief was brief and focused on the formation of the belief. Inspector Wilson gave evidence as to the basis of the formation of the belief to issue the Notice. Relevantly, he stated that there were hazards at the workplace that were not controlled and they were placing workers at risk of harm.[15]
  1. [55]
    In this respect, Inspector Wilson identified the hazard as heavy metal-framed furniture, mainly chairs, that could be moved.[16]
  1. [56]
    The Notice that was issued by Inspector Wilson was completed on the relevant form, however, the form referred to and relied on a ten-page annexure with attachments that was said to form part of the Notice.
  1. [57]
    Under cross-examination, Inspector Wilson confirmed that the annexure to the Notice was not drafted by him, but, rather was drafted by a principal legal officer employed by the Regulator. Relevantly, those pages outline, inter alia, the contravention, the particulars of the contravention, the wording of the contravention, the nature of the hazard and risk, the background to the contravention, the summary and likelihood of repeat of the contravention and the directions to remedy and prevent the likely repeat of the contravention.
  1. [58]
    Inspector Wilson was asked about the reference to the term "furniture" in the Notice. He confirmed that the reference was to both hard tables and chairs. However, under cross-examination, Inspector Wilson clarified that he did not consider all of the chairs contained in the Jarrowair Unit to present as a hazard.
  1. [59]
    Inspector Wilson accepted that there was no evidence of anyone being struck by furniture in the Jarrowair Unit.
  2. [60]
    A number of issues with respect to the practicality of fixing the furniture to the floor were put to Inspector Wilson under cross-examination as follows:

And do you know what the lino was laid over?---It’s a hard surface. Whether it’s concrete or tiles, I’m not sure.

Right. So do you know whether the furniture that was in situ was of a design that was capable of being securely affixed to the floor?---From my limited knowledge you could affix it to the floor.

And how would one affix the furniture – to do with the chairs – how would one fix those chairs to the floor?---Well, I suppose with screws and bolts.

Right. And how – just physically how would one get – what would the process be?---Well, I’m not into construction person so - - -

So your real answer is you don’t know; do you?---It’s – it’s a possibility that it can be affixed to the floor by screws.

Yes. So it’s a possibility that those tables that you saw there could be affixed to the floor by screws; is it?---Yeah.

Yes?---Or brackets or something on the legs to the floor too.

So get some brackets and what, drilling to the tables?---Yes. Legs. Yes.

Right. And then drilling to the floor you don’t know what the floor is made of - - -?---No.

- - - and then secure them. Is that the case?---Yes.

Yes. And so you as a – in your role of Workplace Health and Safety would be comfortable with that sort of modification being made to tubular tables and chairs; would you?---I would believe it’d be a lot better control than leaving them unsecured.

Yes. I suggest to you that you really had no idea, did you, as to whether it could be affixed to the floor?---That’s one thing for the PCBU to decide.

So that’s a matter for the PCBU to decide; is it?---Yes. It is.

So therefore, it’s not something that you were able to say was something that was reasonably able to be done?---I believe it could be done.

Based upon just your assessment of what, looking at the floor and looking at the furniture?---Yes.

You realised of course that these chairs were used as dining room chairs?---Couldn’t tell you what they were used for other than seating I presume.

So you had no idea what they were used for?---No.

No. So wouldn’t you have to know what they were used for before you could consider the practicality of them being affixed to the floor?---I – I’m just concerned about the unsecured hazards that were there.

And I suggest you didn’t know whether affixing those chairs or tables to the floor could affect their own structural integrity?---Yeah. It would be possible. Yes.

Now, were you concerned that affixing the chairs to the floor would create its own hazard by being an obstacle to movement around the room?---Once again, a risk assessment has to be done by the PCBU about those issues.

Were you concerned that affixing the future to the floor could impede access to areas within the day room or the interview rooms?---No.

Because again, that would be something you’d want the PCBU to assess?---It’s all part of their risk management.

To see whether it was possible or not?---Yes.

I suggest that it simply wasn’t practical to fix the furniture that was present to the floor; was it?---I can’t say either way on that. It’s – there’s other different hierarchies of control that can be used.[17]

  1. [61]
    Inspector Wilson's evidence that the controls that had been implemented in the Jarrowair Unit were inadequate was as follows:

Yes. So I suggest to you that when one stands back and looks at the matters that were in place, de-escalation techniques, withdrawal, personal duress alarms, ability to summon security, duress alarms in the visitor rooms, staff to patient ratio, sedation, ability to transfer patients to the HDU from Jarrowair, there were a range of steps available to staff to manage the risk of which you were concerned?---There were some controls. Inadequate, I call them.

…

… I suggest to you that because of the range of controls that were in place that it wasn’t correct that patients could, as was put in the notice, "easily access and use the furniture as a weapon"?---No, I disagree with you.

And that the risk of harm from furniture being used as a weapon was capable of being managed by the controls that were in place?---No.[18]

  1. [62]
    Inspector Wilson was also cross-examined with respect to his conclusions that "no steps have been implemented … to ensure that the site … was without risk from the potential use of the movable furniture by patients". Inspector Wilson stated his view of this was formed by the fact that on the day of his inspection "nothing had changed".
  1. [63]
    He confirmed on cross-examination that he had not discussed the matter with Dr Gillies or Mr Neilson before issuing the Notice. Further, he confirmed that he did not know what furniture (if any) had been ordered by the DDHHS and what consideration was being undertaken with respect to the further ordering of replacement furniture.

Consideration

  1. [64]
    I will adopt the same approach as the parties by considering grounds two and three together, followed by ground four. Ground one is essentially dealt with under the heading "Disposition". 

Grounds Two and Three

  • The Inspector did not hold a reasonable belief of a contravention against DDHHS; and
  • The Inspector did not make reasonable inquiries as to how the DDHHS discharges its WHS obligations
  1. [65]
    The DDHHS contends that Inspector Wilson had not made adequate inquiries to enable him to have formed an objective reasonable belief that the DDHHS had contravened ss  19(1)(b) and (3)(a) of the WHS Act and, as a consequence, could not have formed a reasonable belief that s 33 of the WHS Act was being contravened.
  1. [66]
    The thrust of grounds two and three is that DDHHS argues that Inspector Wilson had not made adequate inquiries in order to be able to form a reasonable belief including with respect to whether, in the circumstances, it is likely the contravention will continue or be repeated. In this respect, DDHHS submits that the Inspector failed to have regard to or failed to take into account that the Replacement Program, with respect to the furniture, had been commenced, and did not adequately consider all the controls in place to deal with the hazard, nor whether the proposed controls were reasonable.
  1. [67]
    In George v Rockett,[19] the High Court considered what amounted to "reasonable grounds" for a state of mind including suspicion and belief as follows:

When a statute prescribes that there must be "reasonable grounds" for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin's famous, and now orthodox, dissent in Liversidge v. Anderson. That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory power. Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist …[20]

  1. [68]
    In Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No. 2),[21] at paragraph 27, Vice President O'Connor adopted the approach outlined in the following passage from George v Rockett:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.[22]

  1. [69]
    The DDHHS also refer to and rely on a passage from Growthbuilt Pty Ltd v SafeWork NSW,[23] in which Chief Commissioner Kite SC considered a provision contained in the Work Health and Safety Act 2011 (NSW) which is in identical terms to s 191 of the WHS Act as follows:
  1. 95An inspector is however required to balance the objective information available to him, and is obliged to make reasonable inquiries. If he had attempted to make contact with the engineer and not been able to speak with him, for example, that would provide a different factual matrix than making no attempt to clarify any concerns about an expert engineer’s opinion that contradicted his view. A similar point may be made about failing to raise with Mr Radopolous the allegation made by Ace or why the excavator was still in the excavation. The Inspector is not bound by the responses but must take them into account in forming his view.
  1. 96A reasonable and balanced approach does not allow an inspector to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions.[24]
  1. [70]
    The DDHHS rely on Growthbuilt to argue that prior to issuing the Notice, the Inspector did not make adequate or reasonable inquiries sufficient to understand what steps in the procurement process had already been taken by DDHHS in order to replace the existing furniture within the Jarrowair Unit with new items of furniture identified by DDHHS as suitable to install at the Jarrowair Unit.
  1. [71]
    In this respect, the DDHHS contends that the evidence supports the conclusion that the Inspector had not undertaken reasonable inquiries as follows:
  1. the Inspector's notebook does not make mention of any question addressed to a senior officer of the DDHHS regarding the range of control measures available to the DDHHS including: whether the DDHHS had made any inquiries about utilising fixed furniture; whether there were any alternatives available to using fixed furniture; or whether removing furniture altogether was realistic or therapeutically appropriate;
  1. the DDHHS had, in fact, commenced the Replacement Program;
  1. the Inspector had not considered, inquired about or investigated the option of weighted furniture as a reasonably practicable option;
  1. the "no furniture" option position by the Directions would have been anti-therapeutic and potentially hinder the DDHHS in providing appropriate and humane care to patients;
  1. the Inspector does not appear to have regard to DDHHS' compliance with industry practice such as, for example, the guidance contained in the Australian Health Facility Guidelines;
  1. the option pressed in the Notice of utilising fixed furniture as a replacement is inconsistent with the requirement to not place ligature or hanging points in institutions to reduce the risk of harm to patients; and
  1. that the Inspector failed to have regard to the controls in place to deal with the hazard including pharmaceutical intervention, isolation and duress alarms.
  1. [72]
    In response, the Regulator contends that the DDHHS' contentions are irrelevant and seek to conflate the issue that warranted the Notice being issued by the Inspector.
  1. [73]
    The Regulator contends that the Notice sets out a detailed account of matters giving rise to the basis upon which the Inspector formed the requisite belief and that the contravention would likely be repeated.
  1. [74]
    The Regulator argues that in issuing the Notice the Inspector had regard to the existence of unsecured furniture at the site which had been and was being used by patients to intimidate, threaten or expose workers to the risk of death/injury. The Regulator argues that the belief was based on the evidence before the Inspector including the fact that an Action Plan document had identified issues surrounding unsecured furniture approximately two years prior and recommended actions (however, fixing the furniture to the floor was considered unsupported). The Inspector also relied on the accounts of staff that they had raised the issue with management and had concluded that those complaints were not addressed.
  1. [75]
    The Regulator contends that the fact the DDHHS had commenced the Replacement Program is irrelevant to the determination of the matter.
  1. [76]
    The Regulator further argues that the alleged failure of the Inspector to undertake inquiries to ascertain whether there were other control measures available to prevent the risk or to take steps to make further inquiries of DDHHS is irrelevant to the review.
  1. [77]
    Accordingly, to determine this matter the Commission will consider whether or not there was a factual basis or information with probative value which would create in the mind of a reasonable person, a belief that DDHHS had contravened ss 19(1)(b) and (3)(a) of the WHS Act and, consequently, s 33 of the WHS Act was being contravened and that the contravention would likely be repeated. 

What was the Stated Factual Foundation for the Belief?

  1. [78]
    The Inspector attended the site and inspected the Jarrowair Unit over the course of two days. The inspection coincided with compliance monitoring and enforcement investigations in respect of an assault on a nurse at the Acute Mental Health Unit by a patient. That assault did not, relevantly, involve furniture being used or threatened to be used as a weapon.
  1. [79]
    Whilst on site, Inspector Wilson (in the company of another inspector) conducted interviews with nursing and clinical staff at the Jarrowair and the High Dependency Units.
  1. [80]
    The Inspector recorded in the Notice that:

During those interviews, workers that work at the Acute Mental Health Unit stated the chairs in the Jarrowair Unit had been used by patients to threaten workers and cause damage to property, namely glass windows and doors. Workers stated that patients had threatened staff by picking up chairs with metal legs, raising the chairs off the ground and holding the chairs in such a way as to threaten workers. The relevant workers felt that they could be injured if struck by the chairs.

Workers also stated that a patient has previously smashed a window connecting the secure staff viewing area and the Jarrowair Unit by throwing a chair into the window. Staff also stated another patient threw a chair into the door leading into the courtyard area causing the top pane of glass to break.

Workers advised Inspector Heelan and I that they are regularly threatened by patients holding chairs in the air. They also stated the chairs are also used as shields by the patients and that the chairs are moved by patients to avoid staff being able to access them.[25]

  1. [81]
    In addition to the interviews, the Notice also records that the Inspector had regard to two documents, being the "Occupational Violence and Security Risk Action Plan" ('the Action Plan') and the "Occupational Violence Prevention in Queensland Health's Hospital and Health Services Task Force Report" ('the Report').
  1. [82]
    In issuing the Notice, the Inspector included the following extracts from the Action Plan:

"It is evident that there are items in the interview I relative roam that can be used as weapons such as unsecured furniture (maybe excess furniture as well) this can place the interviewing staff member/s at a much higher risk:

There is a hole in the wall of interview room 2; this could indicate that violence does occur in the interview rooms."

The following Recommended Actions are stated by workers in that document:

"Recommend that furniture be secured to the floor making it extremely difficult to use as a weapon against interviewing staff member/s (e.g. unnecessary furniture removed, staff member should be located closest to the exit)"

Photographs set out in this document that show interview room 2 were taken on 18 December 2017.

The following statements are also made in that doc1Jment as an apparent outcome of the concerns raised by workers:

"Fixing furniture to floor not supported.

All staff when in interview room should be wearing personal duress alarms and AMHU nursing staff should have one on at all times while on duty."[26]

  1. [83]
    Extracts of the Report were also relied on by the Inspector. It is unnecessary to record the extracts other than to note the Report contains observations about the nature and scope of occupational violence experienced by workers in the public health system in Queensland.
  1. [84]
    The Inspector also identifies that he had regard to information conveyed by workers that they discussed safety concerns relating to the use of chairs as potential weapons to assault or threaten staff following the assault of the nurse with the then DDHHS Chief Executive and the then Executive Director of Mental Health.[27]
  1. [85]
    The Inspector concludes that the DDHHS had taken no steps to ensure the site was "without risk to the health and safety" of a person following the report by staff as follows:

Since this date no steps have been implemented by the DDHHS or the State to ensure SFAIRP that the work environment at the Site Location was without risk to the health and safety of any person from the potential use of the moveable furniture by patients, contrary to s. 33 and s. 19(1)(b) and (3)(a) of the Act.[28]

  1. [86]
    In reliance on these matters, the Inspector then expresses the following conclusion:

Summary

Accordingly, I reasonably believe that the DDHHS and the State both had the relevant capacity to influence and control the matter which is the subject of this notice ("matter''). The State had capacity in a legal and practical sense to control and influence the DDHHS and to keep itself adequately informed about relevant work health and safety matters. Simple and SFAIRP measures were available to both duty holders to minimise the revel of the risk SFAIRP under s. 17 of the Act. They have failed to implement those measures.[29] 

  1. [87]
    Further, the Inspector forms a view that the contravention of s 19 and s 33 of the WHS Act will likely be repeated on the following basis:

Likelihood of Repeat of the Contravention

The DDHHS was given actual notice about the significant concerns of staff about the unsecured and moveable furniture as far back as the date of the preparation of the Action Plan.

Dr Peter Gillies and Mr Greg Nielson [sic] were given further notice about those concerns on or about 21 July 2019 by hospital workers.

Given the failure of the duty holders to take immediate steps to remedy the contravention over that period of time, what was reasonably able to be done by the State and the DDHHS to ensure health and safety under s. 18 and the objects of the Act, including s. 3(2) of the Act, I reasonably believe that the contravention of s. 33 and s. 19(1)(b) and (3)(a) will likely be repeated.[30]

  1. [88]
    As is apparent, the Inspector concluded there was a likelihood the contravention would be repeated based on what the Inspector understood was DDHHS' failure to take steps to remedy the contravention.
  1. [89]
    The failure to take steps is given meaning by the conclusion referred to above that the Inspector understood DDHHS had taken no steps in relation to the WHS concerns raised by staff regarding the furniture in the Jarrowair Unit.
  1. [90]
    Consequently, a conclusion is able to be drawn that this information was relied on by the Inspector in forming his belief.

Was the Belief a "reasonable belief"?

  1. [91]
    The next inquiry is to determine if that belief was a "reasonable belief". The test as to whether the belief is a reasonable belief is an objective one. The use of the word "reasonable" introduces objectivity into the consideration of whether the Inspector has acted appropriately.
  1. [92]
    The statutory context, including having regard to the objects of the WHS Act, may inform the determination of what is reasonable.
  1. [93]
    The process of forming a reasonable belief will require not only the consideration but also the balancing of the objective information available to the Inspector to reasonably form the "inclination of mind".
  1. [94]
    The nature of the matters under investigation and the urgency required to appropriately respond to them in accordance with the requirements of the WHS Act will inform the nature and breadth of the Inspector's inquiries. 
  1. [95]
    It has previously been confirmed, however, that an Inspector is not required to conduct a full investigation in order to satisfy themselves to the level of proof necessary of a contravention of the WHS Act.[31]
  1. [96]
    As noted above, however, an Inspector is required to balance the objective information available and is obliged to make reasonable inquiries.
  1. [97]
    It follows that a reasonable and balanced approach to the consideration of the objective facts does not permit an Inspector to make assumptions and act on them without at least attempting to test, in a timely and practical manner, the validity of those assumptions.
  1. [98]
    As noted above, the Inspector relies on information that staff discussed their concerns with Dr Gillies and Mr Neilson regarding the potential use of chairs as a weapon in the Jarrowair Unit.
  1. [99]
    During the course of the hearing, it was Mr Neilson's uncontradicted evidence that staff raised a concern with respect to the High Dependency Unit rather than with respect to the Jarrowair Unit.
  1. [100]
    As recorded above, it was Mr Neilson's evidence that upon being advised of the concern whilst he was at the High Dependency Unit, steps were taken to expand the order of the replacement furniture to include replacing furniture in the High Dependency Unit to address the particular concern raised.
  1. [101]
    Under cross-examination, the Inspector confirmed that he did not speak to Mr Neilson or Dr Gillies about the concerns raised and that he did not make inquiries of them about what steps had been taken. Accordingly, the assumption made by the Inspector, that the complaint made related to furniture at the Jarrowair Unit and that no steps were subsequently taken, remained untested.
  1. [102]
    Further, the Inspector confirmed under cross-examination that he was unaware of the following matters:
  1. what the clinical and therapeutic needs associated with furnishing the Unit were;
  1. that there was (at that time) a trial of the replacement furniture taking place; and
  1. the process of ordering the replacement furniture including the procurement process and the length of time it took for delivery of the furniture.
  1. [103]
    Rather, Inspector Wilson's evidence was that he attended at the Jarrowair Unit and observed the furniture to be in situ. He consequently made an assumption that no steps had been taken to address the concerns of the staff or to replace the furniture.
  1. [104]
    It is apparent from the above that Inspector Wilson failed to make necessary inquiries with respect to his assumption that the complaint was made with respect to the Jarrowair Unit and that no steps had been taken by DDHHS to replace the furniture. Accordingly, his assumption remained untested.
  1. [105]
    The information under the heading "Summary" indicated that the Inspector considered that "simple and SFAIRP[32] measures were available … to minimise the level of risk SFAIRP under s 17 of the Act. They have failed to implement those measures."  
  1. [106]
    Drawing a conclusion that the control measures had not been implemented requires consideration of information relating to the control measures that were in place and consideration as to why he concluded they were not adequate or, to be more precise, why the Inspector believed such measures had failed to be implemented.
  1. [107]
    The DDHHS had a number of control measures in place to minimise the risk to workers from potentially violent patients. However, there appears, on the face of the Notice, to be no consideration of those control measures.
  1. [108]
    The control measures were put to Inspector Wilson in cross-examination which is referenced at paragraph 62 above. Other than the bare assertion that the control measures in place were inadequate,[33] the Inspector did not articulate, in either the Notice or in his evidence, the basis upon which he formed that view.
  1. [109]
    Indeed, the Inspector states in the Notice that control measures had failed to be implemented. This assumption seems to be based on a view formed by the Inspector that the only way to manage the risk of the hazard from the furniture was to fix the furniture to the floor or to remove the furniture altogether.
  1. [110]
    This assumption might go some way to explaining why the Inspector did not consider the hierarchy of control measures in place or form a view, one way or the other, as to the adequacy of those control measures.
  1. [111]
    The Inspector relies on the DDHHS' Action Plan to contend that the DDHHS were on notice that the furniture posed a risk to the safety of staff. However, it appears that the Inspector has not had regard to the conclusion in the Action Plan that the fixing of furniture to the floor was not supported.
  1. [112]
    The Inspector has not made any reasonable inquiries as to why the DDHHS did not support the fixing of the furniture to the floor. The evidence before the Commission was that the DDHHS had several reasons as to why that option was not supported, including with respect to patient and staff safety. Such information was available to be considered by the Inspector if only it had been requested from the DDHHS.
  1. [113]
    It may well be that upon undertaking such inquiries, balancing the objective information and upon considering the other control measures that were in place to attempt to minimise the risk from the hazard that the Inspector may have formed a different belief.
  1. [114]
    Conversely, after making the inquiries and objectively balancing the information the Inspector may have formed the same belief. The Inspector is not bound by the responses but should nevertheless have taken them into account in forming his view.
  1. [115]
    There was no great urgency involved in the issuing of the Notice, indeed the Regulator's legal officer took several days to deal with the Notice before returning it to the Inspector. That indicates that the Inspector had, in the circumstances, an adequate amount of time available to him to test his assumptions by speaking to the appropriate employees at DDHHS. This was not done. Accordingly, the Inspector's assumptions remained untested and he failed to make reasonable inquiries of DDHHS.
  1. [116]
    Accordingly, I do not consider that the Inspector took a reasonable and balanced approach and that, consequently, the belief was not, in the circumstances, a reasonable belief.
  1. [117]
    Grounds two and three are made out.

Ground Four

The Notice has Inadequate Particularisation of an Alleged Contravention

  1. [118]
    Section 192 of the WHS Act requires an improvement notice to state certain things. In addition to the requirement to state that the Inspector believes the person is contravening a provision of the Act; or has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated,[34] the notice must also state the relevant provision, state, briefly, how the provision is being, or has been, contravened and the day by which the person is required to remedy the contravention or likely contravention.[35]
  1. [119]
    The requirements of a notice and the role of particulars has been considered by the Commission. In Lindores, his Honour, Deputy President O'Connor (as he then was) relevantly stated:

The function of particulars is to enable a person to know the nature of the allegation which he or she is called on to meet. In Dare v Pulham, Murphy, Wilson, Brennan, Deane and Dawson JJ said:

Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it ...; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial...[36]

  1. [120]
    The DDHHS made the following uncontroversial submissions in respect to the application of general principles, which are accepted, as follows:
  1. An improvement notice ought to state with certainty a reasonably precise and apt description of the acts or omissions of the Applicant leading to an alleged breach of ss. 19 and 33 of the Act. Given that a breach of an improvement notice may lead to criminal sanctions, a recipient is entitled to know with certainty what it is that ought to be done in order to avoid criminal liability.
  1. An improvement notice is readily comparable in this respect with any statutory notice such as an environmental protection order or any species of approval with conditions which exposes the recipient or holder to criminal sanction for non-compliance. The law requires that the notice identify with certainty each of the matters referred to in s. 192(1).

The decision in Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549, at 562 demonstrates this position.[37]

  1. [121]
    The DDHHS submits that the Inspector failed to adequately particularise the contraventions with the consequence that the following is unable to be ascertained:
  1. what is the content of the duty said to be owed by the DDHHS in terms of the management of the hazard/risk;
  1. what were the full suite of control measures available to the DDHHS;
  1. how the existing work environment failed to meet the duty to eliminate or reduce risk so far as is reasonably able to be done and as far as reasonably practicable;
  1. how, in these circumstances, has the DDHHS failed to "ensure the health and safety of workers whose activities in carrying out work are influenced or directed by the Applicant";
  1. otherwise, why the option of using sand-weighted furniture would not have discharged the DDHHS' duties under the WHS Act.[38]
  1. [122]
    The DDHHS argues that the content of the Directions which purport to result from, and seek to remedy, the alleged contraventions are then, infected by a misconception of the universe of control measures available to the DDHHS and the fact that the DDHHS had already begun to implement a further control measure, in the form of the Replacement Program.
  1. [123]
    In this regard, the DDHHS contends that the alleged particulars provided, entirely, "miss the mark" in incorrectly presuming or determining the available measures or options open to the DDHHS to discharge its duties under the WHS Act.
  1. [124]
    It is contended that this misconception arises from the Inspector's failure to consider the option of sand-weighted furniture to be installed in the Jarrowair Unit as per the Replacement Program underway as at the date of the issue of the Notice.
  1. [125]
    In response, the Regulator submits that it is DDHHS who "misses the mark". The Regulator contends that while DDHHS was entitled to hold a view that sand-weighted furniture was the best option, the Inspector was entitled to reach his own opinion.
  1. [126]
    The Regulator submits that when read fairly, and as a whole, the Notice makes it plain how the DDHHS contravened ss 19 and 33 of the WHS Act.
  1. [127]
    Further, the Regulator contends that the Notice was adequate and enabled the Inspector to form the reasonable belief warranting the issuing of the Notice. In the circumstances, the particulars were adequate to enable DDHHS to understand the case against it, and by extension, why the Directions were warranted.
  1. [128]
    Section 160 of the WHS Act sets out the functions and powers of an inspector as follows:

160  Functions and powers of inspectors

An inspector has the following functions and powers under this Act—

  1. to provide information and advice about compliance with this Act;
  1. to assist in the resolution of—
  1. work health and safety issues at workplaces; and
  1. issues related to access to a workplace by an assistant to a health and safety representative; and
  1. issues related to the exercise or purported exercise of a right of entry under part 7;
  1. to review disputed provisional improvement notices;
  1. to require compliance with this Act through the issuing of notices;
  1. to investigate contraventions of this Act and assist in the prosecution of offences;
  1. any other function or power conferred on the inspector under this Act.
  1. [129]
    Sections 191 and 192 of the WHS Act provide a mechanism by which an inspector may discharge their function and powers by the issuing of an improvement notice.
  1. [130]
    For the reasons stated above, there is no objective basis to support the formation of a reasonable belief for the purpose of s 191 of the WHS Act when the evidence of this matter is considered as a whole.
  1. [131]
    Consequently, the Notice is infected by the assumptions made by the Inspector, and the failure to refer to relevant and available information, including with respect to the control measures that were in place: the control measure that was being trialled as part of the Replacement Program; and whether those control measures were appropriate so far as it was reasonably practicable to eliminate or minimise the risk.
  1. [132]
    The Notice is also premised on the basis that it was reasonably practicable for the furniture to be fixed to the floor in circumstances where the Inspector did not know if that was capable of being done; or whether it would alter the structural integrity of the furniture; or whether fixing the furniture to the floor would potentially pose a further risk, in and of itself, to the safety of both staff and patients.
  1. [133]
    For the reasons referred to above, that assumption was not tested by the Inspector.
  1. [134]
    Further, the wording of the contravention is prolix and imprecise and does not properly place DDHHS on notice with respect to the basis upon which it is said to have contravened the WHS Act.
  1. [135]
    It could be inferred from the particulars including particulars (d), (e) and (f) that the presence of having any moveable and unsecured furniture in the form of hard tables and chairs formed the basis of the contravention.
  1. [136]
    However, under cross-examination, the Inspector indicated that it was not his intention to convey that all of the moveable and unsecured furniture in the relevant area posed a risk.
  1. [137]
    Accordingly, the contravention detailed by the Inspector is imprecise and, consequently, does not properly identify, with precision, the particulars of the contravention.
  1. [138]
    For the reasons referred to above, the Notice also incorrectly states that the DDHHS failed to implement controls to minimise or eliminate the risk. That conclusion is incorrect as it does not have regard to the control measures that were in place.
  1. [139]
    If it was the case that the Inspector considered that such control measures were inadequate that is not stated in the Notice.
  1. [140]
    Accordingly, the DDHHS' submissions with respect to the deficiencies of the particulars is accepted. Such deficiencies arise as a consequence of the failure of the Inspector to make reasonable inquiries and to obtain relevant and available information from the DDHHS.

Disposition

  1. [141]
    For the reasons referred to herein, when the evidence is considered as a whole, there is no objective basis to support the formation of a reasonable belief as required for the purpose of s 191 of the WHS Act.
  1. [142]
    Further, as a consequence of the Inspector's failure to test assumptions made and to conduct reasonable inquiries with the DDHHS, there are deficiencies in the Notice, including deficiencies with respect to the wording of the contravention and the particulars relied upon.
  1. [143]
    In deciding an application for review, the Commission may under s 229E of the WHS Act: confirm the decision; or vary the decision; or set aside the decision and make a decision in substitution for it; or set aside the decision and return the issue to the decision-maker with directions the commission considers appropriate.
  1. [144]
    In this matter, the Internal Review decision will be set aside and substituted with a decision to withdraw the Improvement Notice ab initio.
  1. [145]
    Finally, the period of time between the hearing of this matter and the proposed delivery of the decision was raised by the Industrial Registry in correspondence to the parties. The parties were invited to be heard or to make further written submissions, however, the parties did not wish to make any further submissions in relation to this matter.

Order

  1. [146]
    Accordingly, I make the following order:
  1. The Review Decision of the Regulator under the Work Health and Safety Act 2011 is set aside and substituted for a decision to withdraw the Improvement Notice I2024551 ab initio.

Footnotes

[1]  State of Queensland (Darling Downs Hospital and Health Service), 'Annexure to Improvement Notice No. I 2024551', Exhibit 1.1 in State of Queensland (Darling Downs Hospital and Health Service) v The Regulator under the Work Health and Safety Act 2011, WHS/2019/143, 13 July 2020, 1 ('the Notice').

[2]   Internal Review Decision in State of Queensland (Darling Downs Hospital and Health Service) v The Regulator under the Work Health and Safety Act 2011, WHS/2019/143, 30 September 2019, 20.  

[3]   State of Queensland (Darling Downs Hospital and Health Service), 'Written Submissions for the Applicant', Submission in State of Queensland (Darling Downs Hospital and Health Service) v The Regulator under the Work Health and Safety Act 2011, WHS/2019/143, 6 November 2020, [23] ('Written Submissions filed by the Applicant on 6 November 2020').

[4]Work Health and Safety Act 2011 (Qld) s 3(1) ('WHS Act').

[5]   WHS Act (n 4) the note in s 31(1) states:

In this division, the penalty applicable to a body corporate is separately expressed. Otherwise the Penalties and Sentences Act 1992, section 181B applies for this Act.

[6]   [2015] ICQ 17 ('Dalliston v Taylor & Anor').

[7]   Ibid [12]; See also Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 61, [3] ('Lindores').

[8]  See Lindores (n 7).

[9]  During the inspection on 20 and 21 August 2019.

[10]  State of Queensland (Darling Downs Hospital and Health Service), 'Transcript of Interviews', Exhibits in State of Queensland (Darling Downs Hospital and Health Service) v The Regulator under the Work Health and Safety Act 2011, WHS/2019/143, 13 July 2020, Exhibits 1.5-1.12.

[11]  The Notice (n 1) Attachment A.

[12]   Transcript of Proceedings, State of Queensland (Darling Downs Hospital and Health Service) v The Regulator under the Work Health and Safety Act 2011 (Queensland Industrial Relations Commission, WHS/2019/143, Hartigan DP, 13 July 2020) 25 ('Transcript of Hearing on 13 July 2020').

[13]  High Dependency Unit.

[14]   Transcript of Hearing on 13 July 2020 (n 12) 24-5.

[15]   Transcript of Hearing on 13 July 2020 (n 12) 63.

[16]   Ibid 64.

[17]   Transcript of Hearing on 13 July 2020 (n 12) 78-80.

[18]   Ibid 86.

[19]   (1990) 170 CLR 104 ('George v Rockett').

[20]  Ibid 112 (citations omitted).

[21]  [2019] QIRC 133.

[22] George v Rockett (n 19) 116.

[23]   [2018] NSWIRComm 1002 ('Growthbuilt').

[24]   Ibid [96]-[97].

[25]   The Notice (n 1) 7.

[26]   The Notice (n 1) 7.

[27]   Although furniture was not used as a weapon in that instance.

[28]   The Notice (n 1) 8.

[29]   Ibid 9.

[30]   Ibid.

[31] George v Rockett (n 19); Growthbuilt (n 23).

[32]   So far as is reasonably practicable.

[33]   Under cross-examination.

[34]   WHS Act (n 4) s 192(1)(a)(i)-(ii).

[35]   Ibid s 192(1)(b)-(d).

[36] Lindores (n 7) [20] (citations omitted).

[37]   Written Submissions filed by the Applicant on 6 November 2020 (n 3) [58]-[59] (emphasis in original) (citations omitted).

[38]   Written Submissions filed by the Applicant on 6 November 2020 (n 3) [61](a)-(e).

Close

Editorial Notes

  • Published Case Name:

    State of Queensland (Darling Downs Hospital and Health Service) v The Regulator under the Work Health and Safety Act 2011

  • Shortened Case Name:

    State of Queensland (Darling Downs Hospital and Health Service) v The Regulator under the Work Health and Safety Act 2011

  • MNC:

    [2025] QIRC 184

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    18 Jul 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Dalliston v Taylor [2015] ICQ 17
2 citations
Jump To
Cite 1 - [2015] ICQ 17
Cite 2 - [2015] ICQ 17
George v Rockett (1990) 170 CLR 104
2 citations
Jump To
Cite 1 - (1990) 170 CLR 104
Cite 2 - (1990) 170 CLR 104
Growthbuilt Pty Ltd v Safe Work NSW [2018] NSWIRComm 1002
2 citations
Jump To
Cite 1 - [2018] NSWIRComm 1002
Cite 2 - [2018] NSWIRComm 1002
Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 61
2 citations
Jump To
Cite 1 - [2018] QIRC 61
Cite 2 - [2018] QIRC 61
Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2) [2019] QIRC 133
2 citations
Jump To
Cite 1 - [2019] QIRC 133
Cite 2 - [2019] QIRC 133
Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549
1 citation
Jump To
Cite 1 - (1994) 11 WAR 549

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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