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The Court of Appeal upheld the Magistrate Court’s finding that certain union officials who attempted to enter a workplace while holding a permit under s 117 Fair Work Act 2009 (Cth) and a “WHS entry permit” under the Work Health and Safety Act 2011 were not guilty of the offence of trespass contrary to s 11(2) Summary Offences Act 2005. It was within the discretion of the Magistrate to order the Commissioner of Police to pay to the applicants a higher amount of costs than set out in the prescribed scale of costs.
Fraser and McMurdo JJA and Bradley J
20 August 2021
The applicants were union officials who held permits under the Fair Work Act 2009 (Cth) which authorised them to enter a workplace under s 11(3) Summary Offences Act 2005 (“Summary Offences Act”). They also held “WHS entry permits” under the Work Health and Safety Act 2011 (“WHS Act”) which, under ss 117 and 118 of the WHS Act, authorised them to “enter a workplace for the purpose of inquiring into a suspected contravention” of the WHS Act. –.
Each applicant was charged with trespass under s 11(2) of the Summary Offences Act when they attempted to enter a workplace. , –.
The Magistrates Court upheld a submission that the applicants had no case to answer because, on a proper construction of ss 117 and 118 of the WHS Act and s 11(3) of the Summary Offences Act they were lawfully entitled to remain at the work site. It ordered the charges to be dismissed and the Commissioner of Police to pay the applicants’ costs higher than the amount set out in the prescribed scale of costs. .
The District Court allowed an appeal from that decision, set aside the Magistrates Court orders and remitted the proceedings back to the Magistrates Court. . The applicants sought leave to appeal against those orders.
Justice Fraser (McMurdo JA and Bradley J agreeing) granted leave to appeal and held that the charges were rightly dismissed by the Magistrates Court. , , .
His Honour held that, in a case where the prosecution had failed to allege or adduce evidence that any of the express conditions of the operation of ss 117 and 118 of the WHS Act was not fulfilled, the evidence in the prosecution case was incapable of proving beyond reasonable doubt that the applicants remained at the workplace unlawfully. –. Further there was nothing in the text of s 11(3) of the Summary Offences Act that would “render unlawful conduct that was authorised by the [WHS Act]”. . Accordingly, the Magistrates Court’s decision to uphold the no-case submission was correct.
Further, his Honour held that it was within the discretion of the Magistrate to find that a higher costs order was just and reasonable considering the special importance of the issues raised involving the national scheme of which the WHS Act forms part. .
S Spottiswood of Counsel