Coal Mining Safety and Health Act deficient – election process

Construction, Forestry, Mining & Energy Union v BM Alliance Coal Operations Pty Ltd & Ors [2011] QSC 381

Issue: Both the Construction, Forestry, Mining and Energy Union (“CFMEU”) and the BM Alliance Coal Operations Pty Ltd (the coal mine operator at Gregory), BHP Coal Pty Ltd (the employer of labour at Gregory) and Michael Nucifora (the Site Senior Executive (the SSE) at Gregory) (“BMA”) advanced that they were the body responsible for the election of the Site Safety and Health Representatives (“SSHRs”) pursuant to the Coal Mining Safety and Health Act 1999 (Qld) (“the Act”).

The intriguing aspect is Martin J found that neither was and the Act did not provide for who could call an election. Furthermore, his Honour found it was not possible to read in to the legislation what had been left out:

[58] A court will, ordinarily, be loath to reach a conclusion that there has been a failure in a statute to properly provide the necessary steps to allow one of the objects of the statute to be reached. Neither the CFMEU nor the SSE at Gregory Coal Mine are entitled to or have the power to call and conduct an election for an SSHR. That conclusion is reached reluctantly because it means that an election for an SSHR cannot take place. Even adopting a purposive construction of Part 7 or a “fair, large and liberal” interpretation does not allow for either of the declarations sought by the parties. This is a case in which the problem identified by Spigelman CJ in R v Young[14] raises its head, that is, “What, if anything, should the courts do when it appears that Parliament has failed, apparently by inadvertence, to deal with an eventuality required to be dealt with if the purpose of a statute is to be achieved?”[15]

[59] The approach which should be applied is set out by Lord Diplock in Wentworth Securities v Jones[16]:

“My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [I971] A.C. 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required-to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine that is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.”

[60] Courts in Australia have referred to that analysis in a number of instances.[17]

[61] In his examination of this area of construction in R v Young, Spigelman CJ said:

“[11] The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute.

[12] As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the Parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.”

[62] The same issue was considered by Muir JA in Ravenscroft v Nominal Defendant[18]. His Honour referred, in some detail, to the various authorities on this point and concluded:

“[52] The deficiencies in the Act can be overcome judicially only by a process of construction. And for that to be possible, to put it broadly, the court must conclude that its solution is the one Parliament would have adopted had it become aware of the deficiencies. Consequently, it would be appropriate, rarely if ever, to fill a perceived gap by interfering with the framework or scheme of an Act. Also there are cases in which it is desirable for the court to leave any remedy to Parliament. James Hardie & Coy Pty Ltd v Seltsam Pty Ltd is an example of such a case. In their joint reasons Gaudron and Gummow JJ, having identified problems with the legislation under consideration, said that such considerations:

“… serve to emphasise the need for renovation of the New South Wales legislation, not by judicial grafting to it of tissue which it lacks, but upon detailed reconsideration by the legislature. Judicial interpretative techniques may come close to leaching the existing statutory text and structure of their content and, whilst answering that apparently hard case then before the court, unwittingly lay the ground for other hard cases.”

[63] More recently, the Court of Appeal has referred to this issue again in Sevmere Pty Ltd v Cairns Regional Council[19]. In that case Holmes JA referred to the conclusion reached by Muir JA in Ravenscroft. In Sevmere the court held that the third limb of the Diplock test had not been satisfied because it was not obvious that the words proposed were those which the legislature would have inserted had it considered the matter.

[64] This, though, is not a case in which the parties have sought that the court “read in” words in order to arrive at a decision as to who might conduct the election. Each party has nominated itself as the responsible entity.

[65] BMA’s alternative application for a declaration “as to who bears responsibility for the conduct of an election of SSHRs at a coal mine under the Act” is effectively asking the Court to identify some other party which the Act requires to conduct the election. No other entity was nominated by BMA. In any event, I am not satisfied that it is obvious that any form of words would have been used by Parliament which would have identified such an entity.

The election process

[66] Each party also sought a declaration that the process it proposed was, in effect, appropriate. Even had I reached the conclusion that one or other of the parties was the appropriate party to conduct the election, I would not have made such a declaration.

[67] The word “election” is used with respect to three different circumstances in Part 7. First, it is used in s 93 for what appears to be the first and subsequent ordinary elections of SSHRs. Secondly, it is used in s 94 in circumstances where an SSHR is not available. Thirdly, it is used in s 98 in circumstances where the Minister has removed an SSHR.

[68] No provision is made for the process which should be used in any of those instances. One can imagine, though, that where an SSHR is not available, and a situation of perceived danger has arisen, that the need for urgent action would require that a different type of election take place under s 94 than would occur under s 93.

[69] The process sought to be engaged by the CFMEU contains within it provisions which find no basis in the Act. I will cite one example only. The electoral process of the CFMEU purports to create a “quorum” for the election of 75% of the coal mine workers at the Gregory Coal Mine. It also provides that the election does not conclude until that percentage is reached. There is nothing in the Act to support such a requirement.

[70] Similarly, the proposed process of the BMA contains a number of matters which have no support in the Act including the identification of ballot papers in a supposedly “secret ballot”.

Conclusion

[71] This is a circumstance, fortunately rare, in which the deficiency in the legislation is one which cannot be cured by any acceptable means of construction. It should be left to Parliament to remedy the deficiency. It is a deficiency which may be remedied either by legislation or, perhaps, by way of regulation.[20]

[58] A court will, ordinarily, be loath to reach a conclusion that there has been a failure in a statute to properly provide the necessary steps to allow one of the objects of the statute to be reached. Neither the CFMEU nor the SSE at Gregory Coal Mine are entitled to or have the power to call and conduct an election for an SSHR. That conclusion is reached reluctantly because it means that an election for an SSHR cannot take place. Even adopting a purposive construction of Part 7 or a “fair, large and liberal” interpretation does not allow for either of the declarations sought by the parties. This is a case in which the problem identified by Spigelman CJ in R v Young[14] raises its head, that is, “What, if anything, should the courts do when it appears that Parliament has failed, apparently by inadvertence, to deal with an eventuality required to be dealt with if the purpose of a statute is to be achieved?”[15]

[59] The approach which should be applied is set out by Lord Diplock in Wentworth Securities v Jones[16]:

“My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [I971] A.C. 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required-to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine that is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.”

[60] Courts in Australia have referred to that analysis in a number of instances.[17]

[61] In his examination of this area of construction in R v Young, Spigelman CJ said:

“[11] The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute.

[12] As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the Parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.”

[62] The same issue was considered by Muir JA in Ravenscroft v Nominal Defendant[18]. His Honour referred, in some detail, to the various authorities on this point and concluded:

“[52] The deficiencies in the Act can be overcome judicially only by a process of construction. And for that to be possible, to put it broadly, the court must conclude that its solution is the one Parliament would have adopted had it become aware of the deficiencies. Consequently, it would be appropriate, rarely if ever, to fill a perceived gap by interfering with the framework or scheme of an Act. Also there are cases in which it is desirable for the court to leave any remedy to Parliament. James Hardie & Coy Pty Ltd v Seltsam Pty Ltd is an example of such a case. In their joint reasons Gaudron and Gummow JJ, having identified problems with the legislation under consideration, said that such considerations:

“… serve to emphasise the need for renovation of the New South Wales legislation, not by judicial grafting to it of tissue which it lacks, but upon detailed reconsideration by the legislature. Judicial interpretative techniques may come close to leaching the existing statutory text and structure of their content and, whilst answering that apparently hard case then before the court, unwittingly lay the ground for other hard cases.”

[63] More recently, the Court of Appeal has referred to this issue again in Sevmere Pty Ltd v Cairns Regional Council[19]. In that case Holmes JA referred to the conclusion reached by Muir JA in Ravenscroft. In Sevmere the court held that the third limb of the Diplock test had not been satisfied because it was not obvious that the words proposed were those which the legislature would have inserted had it considered the matter.

[64] This, though, is not a case in which the parties have sought that the court “read in” words in order to arrive at a decision as to who might conduct the election. Each party has nominated itself as the responsible entity.

[65] BMA’s alternative application for a declaration “as to who bears responsibility for the conduct of an election of SSHRs at a coal mine under the Act” is effectively asking the Court to identify some other party which the Act requires to conduct the election. No other entity was nominated by BMA. In any event, I am not satisfied that it is obvious that any form of words would have been used by Parliament which would have identified such an entity.

The election process

[66] Each party also sought a declaration that the process it proposed was, in effect, appropriate. Even had I reached the conclusion that one or other of the parties was the appropriate party to conduct the election, I would not have made such a declaration.

[67] The word “election” is used with respect to three different circumstances in Part 7. First, it is used in s 93 for what appears to be the first and subsequent ordinary elections of SSHRs. Secondly, it is used in s 94 in circumstances where an SSHR is not available. Thirdly, it is used in s 98 in circumstances where the Minister has removed an SSHR.

[68] No provision is made for the process which should be used in any of those instances. One can imagine, though, that where an SSHR is not available, and a situation of perceived danger has arisen, that the need for urgent action would require that a different type of election take place under s 94 than would occur under s 93.

[69] The process sought to be engaged by the CFMEU contains within it provisions which find no basis in the Act. I will cite one example only. The electoral process of the CFMEU purports to create a “quorum” for the election of 75% of the coal mine workers at the Gregory Coal Mine. It also provides that the election does not conclude until that percentage is reached. There is nothing in the Act to support such a requirement.

[70] Similarly, the proposed process of the BMA contains a number of matters which have no support in the Act including the identification of ballot papers in a supposedly “secret ballot”.

Conclusion

[71] This is a circumstance, fortunately rare, in which the deficiency in the legislation is one which cannot be cured by any acceptable means of construction. It should be left to Parliament to remedy the deficiency. It is a deficiency which may be remedied either by legislation or, perhaps, by way of regulation.[20]

Brisbane Barrister – David Cormack

 

 

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