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The applicant Industry Safety and Health Representative (“ISHR”) and the respondent Chief Inspector of Coal Mines disagreed as to whether the applicant was entitled to be involved in the compulsory questioning of a person pursuant to s 157 Coal Mining Safety and Health Act 1999 (“CMSH Act”). The applicant subsequently sought a declaration that, on the proper construction of the CMSH Act, he could participate in the questioning process. In support of his application, he contended inter alia that the functions of an ISHR under the CMSH Act contemplate an ISHR having investigative involvement which extends to formal inquiries and evidence gathering, and that an ISHR’s functions should be interpreted to the fullest extent possible to achieve the CMSH Act’s safety objective. Applegarth J dismissed the application.
11 February 2020
The applicant was an Industry Safety and Health Representative (“ISHR”) under the Coal Mining Safety and Health Act 1999 (“CMSH Act”), and the respondent was the Chief Inspector of Coal Mines. . In the course of an investigation regarding a fatal mine accident, the respondent issued a notice under s 157 CMSH Act, which empowers an officer to require a person to attend before the officer and answer questions. , –. After some dispute as to whether the applicant was entitled to be involved in that process, the applicant sought a declaration that, on the proper construction of the CMSH Act, he could participate in the process convened by the s 157 CMSH Act notice. –.
The applicant contended inter alia that the functions of an ISHR, which under s 118(1)(d) CMSH Act relevantly include participation in investigations of serious accidents, contemplate an ISHR having investigative involvement which extends to formal inquiries and evidence gathering. . He argued that s 118(1)(d) CMSH Act should be construed to the fullest extent possible to achieve the objective of securing safety at coal mines, and emphasised that the Parliament had not expressly carved out any involvement of an ISHR in the compulsory s 157 CMSH Act process. , . He also submitted that the inability to participate in the process would hamper an ISHR’s ability to recommend prosecutions under the CMSH Act. .
Whether the ISHR had an implied power or right to participate
Applegarth J noted that the right that the applicant argued for was not necessary to give s 118(1)(d) CMSH Act work to do, and that the functions of an ISHR were facilitated by a specific conferral of powers which did not expressly include the right to attend a s 157 CMSH Act examination. –. His Honour explained that the power to conduct an examination under s 157 CMSH Act was significant, and had been conferred upon an independent officer in aid of that officer’s functions. . In his Honour’s view, the function of an ISHR could still be served without the right contended for, either by way of other arrangements with an inspector or officer, or by exercise of the specific powers conferred upon an ISHR under s 119 CMSH Act. .
His Honour explained that it was unnecessary to read s 118 CMSH Act as impliedly conferring the power argued by the applicant so as to achieve the purpose of that provision, and considered that to do so could in fact impede, delay or otherwise prejudice the conduct and examination of witnesses. . His Honour observed that such an interpretation would be “a strong thing to do” in circumstances where a person is obliged to answer questions, inclusive of those questions to which the answer may be incriminating or may adversely affect the investigation if disclosed. . Applegarth J regarded that the purpose of the CMSH Act was best advanced by an interpretation which permits an inspector to make forensic decisions about who should be compulsorily examined, and who should attend an examination. .
Applegarth J reasoned that the declaration sought would have conferred a right on an ISHR to participate in a compulsory examination and ask questions in a manner or form which an investigator could not control. . The legislature had not conferred such a power or right, and his Honour considered that a conferral of that nature would otherwise carry the potential to prolong, disrupt or prejudice the process provided for by s 157 CMSH Act, and would therefore be to the detriment of the expeditious and fair exercise of powers expressly conferred upon an inspector. –. His Honour declined to construe the CMSH Act as if it pursued s 118(1)(d) CMSH Act to the fullest extent possible where the legislature had not expressly conferred the right or power, and where that interpretation would be inconsistent with the apparent intention of Parliament. .
In the result, Applegarth J dismissed the application. .