OHS: wide, wide as the ocean are the powers under s.155 WHS Act

Perilya Limited v Nash [2015] NSWSC 706

Further to the earlier post about the powers of inspectors when entering a workplace, the Supreme Court of NSW has refused leave to appeal the conviction and sentence imposed on the company for failing to produce records, including minutes of Board meetings from the company’s interstate head office.

Hall J found the power under s 155 of the analogue Work Health and Safety Act 2011 was wide enough to include:

  • records from another Australian jurisdiction;
  • information not limited to safety issues;
  • information which is prior to the incident under investigation; and
  • minutes from Board meetings.

The Powers of the Regulator to Obtain Information

  1. Before dealing with the submissions and contentions made on behalf of the plaintiff as to the claimed invalidity of the Notices, it is necessary that attention be given to the width and the nature of the functions of the regulator under theWHS Act, and to the statutory provisions that provide the regulator with power to obtain information under s 155.
  2. The functions of the Regulator under theWHS Act are wide-ranging. They are clearly important functions. The specified function of the regulator under s 152(b), namely “to monitor and enforce compliance with this Act”, is a function that is broad in scope. The statutory function of monitoring carries with it the ordinary meaning of the word “monitor”, namely, to “observe, supervise, keep under review, measure or test at intervals, especially for the purpose of regulation or control”: Oxford English Dictionary.
  3. The power under s 155(1) of the Regulator to obtain“information” includes information, “… that will assist the regulator to monitor or enforce compliance with this Act”: s 155(1).
  4. As noted above, each of the Notices in contention in the present proceedings stated that the regulator had“reasonable grounds to believe” that the plaintiff was capable of: (a) giving information and (b) producing documents in relation to two identified matters. Those matters were: (i) a possible contravention of the Act and additionally (ii) compliance, that is to “assist the Regulator to monitor or enforce compliance with the WHS Act”.
  5. The width of the power under the Act to obtain documents to monitor or enforce compliance with the Act is determined, at least in part, due to the fact that the notion of“compliance” may cover or apply to a number of statutory obligations imposed upon specified persons.
  6. As the submissions for the respondent noted, the matters that were said to enliven the power to issue a notice under s 155 requiring the production of documents were:
  7. That the person issuing the notice is the Regulator (or the delegate of the Regulator).
  8. That the Regulator must have reasonable grounds to believe that the person to whom the notice is to be addressed is capable of providing documents in relation to a possible contravention of theWHS Act or that will assist the regulator to monitor or enforce compliance with the WHS ActRespondent’s Outline of Submissions at [43].
  9. A number of provisions in theWHS Act reflect the rationale that underpins the conferral of what are broad information‑gathering coercive powers upon the Regulator. In that respect:
  10. The legislative objectives of theWHS Act are significant in terms of matters of health and safety. Section 3(1) provides that the main object of thatAct is, inter alia, “to secure the health and safety of workers and workplaces …” by the measures set out in (a) to (b) of that provision. Section 3(1)(a) states the objective of:

“(a)   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 specified types of substances or plant, …”

  1. A related legislative objective is directed to enhancing the protection of workers and others and to that end fostering risk minimisation. Section 3(2) provides:

“In furthering subsection (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 specified types of substances or plant as is reasonably practicable.”

  1. There are two limbs to the provisions conferring power on the regulator under s 155(1). Each requires“reasonable grounds” for the regulator’s particular belief or state of mind. The subject-matter of the first limb is directed to the capability of a person to give information, provide documents or give evidence in relation to a possible contravention of the Act. The second limb relates not only to contraventions of the Act, but also to a broader issue, namely, to “assist” in monitoring or enforcing compliance with the Act. Information, including documents falling within the scope of the second limb are directly relevant to the performance of the regulator’s function under s 152(b). Contraventions of the Act may relate to past events. “Compliance”, though embracing past conduct or events, is also forward-looking in that it is directed at the elimination or minimisation of risks arising from work, plant, specified substances etc: s 3(1)(a) of the WHS Act.
  2. Central to the operation of the provisions of s 155(1) is the stated belief of the Regulator on reasonable grounds. That is an important element in the exercise of the powers conferred by the section.
  3. In summary, the provisions of s 155 are enlivened where“… the regulator has reasonable grounds to believe” the following matters:
  4. That the“person is capable” of, inter alia, providing information including documents etc;
  5. The“information”, “documents” and/or “evidence” concerns or relates to “a possible contravention of this Act”; and/or
  6. The giving of information, provision of documents or giving of evidence will assist the regulator tomonitor and enforce compliance with the Act. The use of the word “assist” carries the meaning of helping or supporting or promoting the performance of the regulator’s function to monitor or enforce compliance etc.
  7. The Regulator is subject to a duty to perform the statutory functions specified in theWHS Act. As earlier stated these include the function of monitoring and enforcing compliance with the Act. In order for the Regulator to properly perform and discharge his responsibilities in respect of those functions in relation to the 2012 accident at the Broken Hill Mine:
  • Information relevant to mine safety at the Broken Hill Mine held by the holding company of the group (the plaintiff) was plainly within the coercive power conferred in broad terms upon the Regulator under s 155 to acquire“information”.
  • The fact that particular documents, such as minutes of board meetings of the plaintiff company, may contain information relevant to matters other than mine safety does not, in my opinion, result in the invalidity of the Notices issued by the Regulator.
  • In relation to information obtained in the exercise of a power or function under theWHS Act the legislative scheme includes, as earlier noted, statutory protection to preserve the confidentiality of such information in s 271. In this respect, the contents of documents obtained must not be disclosed to anyone: s 271(2). Penalties are prescribed in respect of contravention of the confidentiality obligations by both an individual and by a body corporate: s 271(2).
  • The Act ensures the preservation of legal professional privilege in s 269. The section prescribes:“nothing in this Act requires a person to produce a document that would disclose information, or otherwise provide information, that is the subject of legal professional privilege”.
  1. Insofar as certain of the disputed documents were said to be related to confidential matters or were subject to a claim for legal professional privilege, apart from an assertion of confidentiality and privilege in correspondence, the plaintiff made no attempt to support the claim by way of affidavit evidence either before the prosecution was instituted or by evidence in the hearing before the Magistrate.

(3) The Limitations on the Regulator’s Power under Section 155

  1. As detailed above, the plaintiff made submissions as to asserted territorial limitations on the power of the Regulator. For reasons that follow, I do not, with respect, consider that territorial limitations operated so as to limit the Notices issued by Mr Smith on behalf of the Department under s 155. Accordingly, there is no foundation for the contention that the Magistrate failed or erred in not giving consideration to the scope of the alleged limitations referred to in the submissions of the plaintiff set out in itsOutline of Submissions in these proceedings filed 23 February 2015.
  2. The fact that the plaintiff company is registered in Western Australia and the company has its office in Perth, are not decisive considerations. The company, as noted above, has other business operations in other States and in other countries, which, at least in part, are within the control of the plaintiff.
  3. The plaintiff company, on the evidence before the Magistrate, some of which has been referred to above, was also directly“involved” in the Broken Hill Mine at a number of levels. In particular:
  • The plaintiff and its Board of Directors had ultimate control over the operations of the Broken Hill Mine.
  • The plaintiff had been directly involved in and had responsibilities in respect of occupational health and safety matters affecting and/or arising out of the operation of the Broken Hill Mine.
  • The plaintiff, by reason of its operations in New South Wales, its control of the same and its responsibilities for the proper operation of the Mine was subject to the statutory obligations imposed upon it under the New South Wales Act (theWHS Act).
  • Knowledge, in particular the corporate knowledge of the plaintiff in relation to mine safety issues in its operation in other States (and in other countries) relevant to the safe operation of the New South Wales mine was corporate knowledge that, at least potentially, is of significance and importance to the safe operation of the Broken Hill Mine.
  1. The plaintiff’s submissions, as earlier noted, relied heavily upon the limitations found to have existed in theSmorgon  Accordingly, it is necessary to examine the nature of the issues that fell for decision in that case
  2. InSmorgon, the recipients of notices issued by the Deputy Commissioner of Taxation challenged their validity. In particular, a question arose as to the validity of four notices issued to ANZ (the Bank) to attend and produce books, documents and papers contained in four named safety deposit boxes in a branch of the Bank in Melbourne.
  3. The relevant statutory provisions were contained in s 264(1) of theIncome Tax Assessment Act 1936 (Cth) which was in the following terms:

“The Commissioner may by notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority-

(a)   to furnish him with such information as he may require; and

(b)   to attend and give evidence before him or before any officer authorised by him in that behalf concerning his or any other person’s income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.”

  1. The documents, books and papers sought inSmorgon related to two specific matters stipulated in s 264(1)(b), namely, “income or assessment” of a person: See the observations of Gibbs ACJ at p 523.
  2. Whilst the approach of the High Court in theSmorgon case to the construction of the power under ss 263 and 264 of the income Tax Assessment Act1936 (Cth) is instructive, its application to the present case necessarily is to be approached with a degree of caution. This is due to the fact that the terms of s 155(1) are fundamentally different from those considered in Smorgon. Section 155(1) of the WHS Act, unlike the notice provisions under ss 263 and 264, as discussed above, provides for a “reasonable ground to believe”  Additionally, the power under s 155 has a broader scope or reach than the powers under s 263 and 264. This arises, in part, because of the phrases, “a possible contravention of this Act” or that will “assist the regulator to monitor or enforce compliance with this Act”. Even within these formulations, the statutory terms in s 155, “possible” (contravention), “this Act” and “assist”each involve broad, not narrow, concepts.
  3. Additionally, the objects of theWHS Act as stated in s 3, are material in the construction of s 155. An “objects clause” in a statute aids the interpretation and guides decision-makers as to what is to be taken into account when they exercise their powers or perform functions under the Act: see DC Pearce and RS Geddes, Statutory Interpretation in Australia, 6th ed, LexisNexis, Butterworths, Sydney 2006. The Regulator in his/her exercise of power conferred by s 155 is required to consider and give effect to the objects, in particular, those set out in s 3(1)(a), (e) and (g) of the Act with due regard, in particular, to be given to the object in s 3(1)(a) (“protecting workers and other persons against harm to their health, safety and welfare …”) and s 3(2)WHS Act.
  4. As mentioned above, the plaintiff in the present case, in particular, argued that the Notices issued under s 155 were so broadly expressed that they were beyond power. In directing production of“board minutes”, without words of limitation as for example, by the inclusion of a class or category such as“health and safety documents in or related to New South Wales” meant, it was argued, that the Notices exceeded the “limitations” upon the terms of s 155 (T 16:40-41, 15 April 2015).
  5. This line of argument, based as it was upon textual considerations in relation to s 155 and observations inSmorgon as to the Commissioner’s power in a taxation investigation, is one to be carefully assessed with due regard to the regulator’s remit, in particular his/her functions granted by s 152. In a case involving two serious accidents (as in the present case concerning mine shaft accidents in 2008 and 2012) investigations plainly may include inquiry into the discrete acts or omissions directly associated with each accident as well as any relevant broader “upstream” or systemic issues in a particular workplace and/or in the overall operations, including the management of risk by an operating entity. Board minutes of a company or companies involved in and/or responsible for such matters may, at least as a possibility, have relevance to such investigations as a record of management, either for what they record or fail to record. In the context of the present case, involving a particular history of accidents, issues such as the reporting to, supervision by, and response of, the Board of Directors of the company on health and safety issues and for the allocation of financial resources, may have relevance to issues of compliance with the WHS Act, a matter to which express reference is made in s 155(1).
  6. There cannot, of course, be any exhaustive prescription, as to what matters may provide reasonable grounds of belief for the Regulator’s use of powers under s 155(1), each case turning on its own facts. There is, as earlier noted, no challenge to the Notices in this case in terms of the existence of“reasonable grounds”or the Regulator’s belief based on such grounds. Whilst in the course of oral submissions Mr Hodgkinson referred to the Regulator’s Notices as in effect saying “… give me all your documents …” (T 17:41-42), that was more in the nature of a rhetorical flourish. The Notices were drafted in a manner that left no room for uncertainty as to which documents were to be produced.
  7. Whether, for example, a notice issued by the regulator that directs the production of documents concerning the salaries and travel allowances paid to directors of a company could be susceptible to challenge on the ground of invalidity, is not a matter that requires determination in this case.
  8. The argument as developed in the submissions for the plaintiff was premised, in my respectful opinion, wrongly, upon the proposition that documents described in a s 155 notice as“board minutes” could not relate in any way to health and safety issues under the WHS Act. That premise, however, is advanced purely by way of assertion, especially in circumstances where there was no challenge made to the grounds for the Regulator’s belief. There was no evidence beyond assertions made in correspondence that established that board minutes of either the parent or operating company (or both) could have no possible bearing upon such issues.
  9. As stated above, it may be envisaged that a consistent omission in a particular company’s records of any reference to consideration having been given by the directors or managers of a company on safety issues may conceivably have probative value. The fact that particular records such as board minutes may, as would be expected, deal with issues other than or additional to those concerned with health and safety (eg, a takeover bid) does not of itself place the minutes beyond the reach of s 155. They, in my opinion, are subject to the compellable power under the section, confidentiality, and a claim of privilege being available as protective measures under the Act as earlier discussed.
  10. It is important to again emphasise that the provisions of s 155(1) of theWHS Act are considerably wider in scope than were the provisions of s 264(1) under consideration in the Smorgon case. Section 155(1) contains the expression “in relation to” a possible contravention of the Act. As noted above, s 155(1) refers to documents etc “… that will assist the regulator to monitor or enforce compliance with this Act.” The Notices issued by the Regulator in the present case, as also noted above, were expressly directed both to “a possible contravention of this Act” and to “assist the Regulator to monitor or enforce compliance with the WHS Act”, the Regulator importantly having stated that he held the requisite belief, on the basis of reasonable grounds, as to each of those two matters.
  11. The power under s 155(1), unlike that under s 264(1) considered inSmorgon, is sufficiently broad to enable a regulator to obtain and examine documents called for in a notice where he/she holds the requisite belief on reasonable grounds for the purpose of determining whether in some relevant way, they do or may assist in determining whether a contravention of the WHS Act has occurred and/or for monitoring or enforcing compliance with the WHS Act. This, in my opinion, applies to the plaintiff company, and PBHL, or both.
  12. It, of course, is to be borne in mind, as discussed above, that documents the subject of a belief of the regulator on reasonable grounds are not confined to documents that establish an affirmative fact, such as, for example, remedial action taken following an accident. Documents obtained under s 155 may be capable of also establishing a negative – that on a particular matter related to risk of injury or safety, a person failed to take any action or any adequate action to address such matters. The net may need to be cast in wide terms in order to obtain documents that may directly or indirectly bear upon issues of contravention or compliance with statutory obligations.
  13. There is no basis, in my opinion, for the proposition advanced for the plaintiff that s 155 is to be read as subject to a qualification or limitation that the person to whom a s 155 notice is addressed has an unrestricted right to determine for himself or herself whether documents have a connection or a sufficient connection with the matter under investigation. Such“right” could plainly undermine the integrity of an investigation authorised by the WHS Acteven to the point of negativing the express statutory powers conferred under it. The protections built into the Act under ss 269 and 271 are themselves strong indications against any possible implied limitation that would render the compulsive power under s 155 subject to a power or right, in this case in the plaintiff, to determine what documents must be produced.
  14. The plaintiff additionally relied upon the decision of the Federal Court (Davies J) inDeveson v Australian Broadcasting Tribunal (1991) 32 FCR 124 to support its argument that the power under s 155 must be read subject to the limitations as argued in submissions.
  15. I, with respect, do not consider that the decision in that case is of assistance in resolving the issue in the present proceedings. It is sufficient to state that the Federal Court was concerned with summonses that had been issued under s 21(2) of theBroadcasting Act 1942 (Cth), in relation to an application, brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Australian Broadcasting Tribunal in relation to that application was conducting an inquiry in relation to the transfer of certain broadcasting licences.
  16. Davies J observed that the Tribunal, which exercised the statutory power, must act within the limits of that power. His Honour observed that it was a necessary implication in s 21, which uses the expression“for the purposes of proceedings before the Tribunal” that any document required to be produced be a document that may assist the Tribunal in its inquiry. The issue concerned the relevance of the documents sought under the summons, it being observed that the Tribunal had no power to compel production of documents that had no relevance whatever to its inquiry.
  17. Accordingly, the circumstances inDeveson v Australian Broadcasting Tribunal were very different from the present proceedings. Firstly, that case involved a question of an inquiry being conducted by a tribunal involving interested parties. Secondly, the issue of “limitation” on the power in question turned on the question of apparent relevance of documents to the issues. Davies J observed that although s 21 did not contain express limitations on the power it was a provision that did not confer an unlimited power on the Tribunal to require the production of any documents whatsoever: Deveson at p 131. The inquiry being conducted by the Tribunal, it was noted, had a “limited ambit”. The determination was that the summonses had been drafted too broadly to include documents which had no bearing upon the issues that were the subject of the inquiry (at pp 131-2).
  18. In contrast, as has been discussed, the Regulator’s power under s 155 does not have“a limited ambit” but rather as discussed, it has a broad scope. Secondly, unlike the inquiry in Deveson v Australian Broadcasting Tribunal, the scope of the matters to which the power relates under s 155 is not restricted or limited to “issues” but is conferred to wide-ranging matters under the WHS Act as specified in the section.
  19. There having been no dispute from the time the Notices were served upon the plaintiff that the Regulator had reasonable grounds for his stated belief, the plaintiff was subject to a statutory obligation to comply with them by producing the documents in strict conformity with the terms of the Notices.
  20. In particular, there is no requirement for the regulator to know in advance the actual contents of the documents called for. It is sufficient that he/she has formed the belief on reasonable grounds concerning one or other of the subject matters specified in s 155(1) as discussed above. Once such a belief is held, the regulator has the right to issue a notice for production of documents concerning either a contravention of the Act or for the purposes of monitoring compliance or enforcing the Act. There is no other unstated condition to be satisfied. A similar point was considered in theSmorgon case by Gibbs ACJ at 524:

“There is no justification for reading into s 264(1)(b) a condition precedent which it does not express. There are likely to be many cases in which documents that relate to a taxpayer’s taxable income will be of great assistance to the Commissioner in performing his duties under the Act, although the Commissioner is unable, before seeing the documents, to say that they are relevant to a particular issue. It would be an unwarranted limitation on the power given by the section to hold that the Commissioner can only obtain documents if he knows that they provide evidence on a particular matter. The apparent intention of the Parliament is that the Commissioner is entitled to have produced any books and documents that relate to the taxpayer’s income or assessment, even if he does not know what those books and documents may reveal. A document may be required to be produced only if it in fact relates to the income or assessment of the person in question, but if it is of that description, that is enough. In other words the Commissioner is entitled to make what was described as a “roving enquiry” into the income or assessment of a particular taxpayer and for that purpose to have produced such documents as relate to that income or assessment.”

  1. Finally, I note that the plaintiff did not seek in this case to invoke and establish“reasonable excuse” under the provisions of s 155(5) supported by affidavit provided to the Regulator or by any evidence adduced in the proceedings determined by the Magistrate to support such an excuse.

 

David Cormack – Brisbane Barrister & Mediator

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