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Hogan v Riley & Ors [2009] FMCA 269 (10 July 2009)

Last Updated: 14 July 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOGAN v RILEY & ORS

INDUSTRIAL LAW – Civil remedy proceedings – OHS right of entry – relevance of lack of provision of details of safety breach – acting in an “improper manner” – grounds for “reasonable suspicion” – penalty considerations.

Acts Interpretation Act 1901 (Cth) ss.15AA, 15AB
Building and Construction Industry Improvement Act 2005 (Cth) ss.57, 73 (1), 73 (4)
Workplace Relations Act 1996 (Cth) ss.3, 3(e), (h), 4(b), 736 (a)-(c), 747, 748, 755, 756 (1)(b), 758 (1), (3), 760, 767 (1), (3), (3)(b), 769 (1)(a), (c), (4)

Commonwealth Parliamentary Debates (House of Representatives: Hansard) (2nd November 2005)
Explanatory Memorandum, Workplace Relations Amendment (Work Choices) Bill 2005

Addison v Public Transport Corporation of Victoria (1998) 86 IR 308
Alinta LGA Ltd v Mine Subsidence Board [2008] HCA 17; (2008) 244 ALR 276
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Angas Law Services Pty Ltd (In Liquidation) v Carabelas [2005] HCA 23; (2005) 226 CLR 507
Appeal by Australian Municipal, Administrative, Clerical and Services Union (2008) 172 IR 1
Australian Building and Construction Commission v McLoughlin (2007) 165 IR 369
Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Limited [2009] HCA 19 (30 April 2009)
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560
Bercove v Hermes [1983] FCA 163; (1983) 67 FLR 186
Bercove v Hermes (No.3) [1983] FCA 301; (1983) 74 FLR 315
BGC Contracting Pty Ltd v Construction Forestry Mining and Energy Union of Workers [2004] FCA 981; (2004) 140 FCR 53
Browne v Dunn (1893) 6 R 67
Carmody v Mackellar (1996) 68 FCR 265
Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83; (2009) 255 ALR 131
Chew v R [1992] HCA 18; (1992) 173 CLR 626
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Comcare v Thompson [2000] FCA 790; (2000) 175 ALR 163
Commissioner of Police, State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606
Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390
Construction, Forestry, Mining and Energy Union v Hadgkiss [2009] FCAFC 17; (2009) 174 FCR 237
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Doyle v Australian Securities and Investments Commission [2005] HCA 78; (2005) 227 CLR 18
Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134
George v Rockett (1990) 170 CLR 104
Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
Hardcastle v Commissioner of Police [1984] FCA 105; (1984) 53 ALR 593
Hogan v Riley & Ors [2008] FMCA 794 (5th June 2008)
Hussein v Chong Fook Kam [1970] AC 942
International Finance Trust Company Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 251 ALR 479
Jim Pearson Transport v Transport Workers’ Union of Australia [2007] AIRC 559
John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FCA 645
John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467
Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14
Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214
Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285
O’Connell v Palmer [1994] FCA 1511; (1994) 53 FCR 429
Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133; (2008) 169 FCR 435
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Pine v Doyle (2005) 143 IR 98
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Reid v Kerr (1974) 9 SASR 367
Ridehalgh v Horsefield [1994] 3 All ER 848
Ridge v Baldwin [1963] UKHL 2; [1963] 1 QB 539
R v Byrnes [1995] HCA 1; (1995) 183 CLR 501
R v Tillett; Ex parte Newton (1969) 14 FLR 101
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294
Standen v Feehan (No 2) [2008] FCA 1574; (2008) 177 IR 276
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426; (2008) 177 IR 61
Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 254 ALR 432
Tofilau v R [2007] HCA 39; (2007) 231 CLR 396
Willers v R (1995) 125 FLR 221

F. Bennion, Statutory Interpretation, (Third Edition) (London: Butterworths, 1997)
F. Bennion, Statutory Interpretation, (Fifth Edition) (London: Butterworths, 2008)
Cross on Evidence (J.D. Heydon) (Seventh Australian Edition) (Sydney: LexisNexis Butterworths, 2004)
Hon Justice S.M. Crennan, “Blackstone’s “signs” and statutory interpretation,” The Victorian Bar, CLE Lecture, (28th November 2008)
Hon Chief Justice R. French, ““In praise of breadth” – A reflection on the virtues of generalist lawyering,” Address to the Law Summer School, University of Western Australia, (20th February 2009)
W. Eskridge Jr, P. Frickey, E. Garrett, Legislation and Statutory Interpretation, (New York: Foundation Press, 2000)
Hon Justice W.M.C. Gummow, “Statutes: The Sir Maurice Byers annual address,” (2005) 26 Australian Bar Review 121
Hon Justice K. Mason, “The intent of legislators: How judges discern it and what they do if they find it,” (2006) 27 Australian Bar Review 253
S. Odgers, Uniform Evidence Law, (Eighth Edition) (Sydney: Lawbook Co & Thomson Reuters, 2009)
D. Pearce & R. Geddes, Statutory Interpretation in Australia (Sixth Edition) (Sydney: LexisNexis -Butterworths, 2006)
J. Riley & K. Peterson, Work Choices: A Guide to the 2005 Changes, (Sydney: Thomson, 2006)

Black’s Law Dictionary (Seventh Edition, 1999)
Macquarie Dictionary (Fourth Edition, 2005)
Oxford English Dictionary (Second Edition, Reprint, 1991) Volume VII
Words and Phrases Legally Defined (Fourth Edition) (London & Sydney: LexisNexis Butterworths, 2007)

Applicant:
GERARD JOSEPH JOHN HOGAN

First Respondent:
MICHAEL RILEY

Second Respondent:
WAYNE CLARK

Third Respondent:
BRENDAN BYATT

Fourth Respondent:
IQON PTY LTD

File Number:
CAG 57 of 2007

Judgment of:
Neville FM

Hearing dates:
24 and 25 September 2008

Date of Last Submission:
25 May 2009

Delivered at:
Canberra

Delivered on:
10 July 2009

REPRESENTATION

Counsel for the Applicant:
Ms McDonald

Solicitors for the Applicant:
Australian Government Solicitor

Counsel for the Respondents:
Mr McCarthy

Solicitors for the Respondents:
Macphillamy's

ORDERS

(1) The Application filed on 28th December 2007 be dismissed.
(2) The Applicant pay the Respondents’ costs, either as agreed or taxed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAG 57 of 2007

GERARD JOSEPH JOHN HOGAN

Applicant


And


MICHAEL RILEY

First Respondent


WAYNE CLARK

Second Respondent


BRENDAN BYATT

Third Respondent


IQON PTY LIMITED

Fourth Respondent


REASONS FOR JUDGMENT

Overview[1]

  1. In Re Minister for Immigration and Multicultural Affairs; ex parte Lam, Gleeson CJ said:[2] “Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”[3]
  2. The Chief Justice’s remarks were made in an administrative law appeal in a migration matter that involved questions of judicial review and procedural fairness. However, the essential principle articulated by his Honour concerning the law’s object `to avoid practical injustice’, in my view, has wider application.[4]
  1. His Honour’s statement of principle is redolent in the detailed objects of the Workplace Relations Act 1996 (Cth),[5] and in the specific objects in Part 15 of that Act.[6] Unfortunately, the brevity and pellucid clarity of expression of the Chief Justice is not as evident in either of the `objects sections’, or in a significant number of other parts of the legislation for that matter. The principle that requires the provision of basic information, both in the course of litigation, and prior to it, so that the other person knows what challenge or argument is being raised against them, is foundational to the administration of justice. For reasons set out below, in accordance with the proper interpretation of the Workplace Relations Act 1996 (Cth) (“the WR Act”), and in accordance with judicial authority, the provision of basic information, in my view, is a constitutive element of the objects of, and the regime that is established in detail by, the WR Act. In my view, the provision by a permit holder of “sufficient details and facts which give rise to the breach”[7] is a foundational, if not elementary, requirement to ensure that “the concern of the law ... to avoid practical injustice” is readily and straight-forwardly satisfied.
  1. In the context of these civil remedy proceedings under the WR Act, in my view, Gleeson CJ’s principle of `avoiding practical injustice’ applies to the particular facts of this case. It does so in this way:
    1. Two union officials attended the work site at the National Convention Centre in Canberra early in the morning of 7th June 2007. They asserted that there had been an “OHS [or “safety”] breach” at the site. They also claimed that because of that simple, unadorned assertion, they could enter the site without any more ado. When they explained their intention to a number of workers at the entrance to the site, among other things they were quickly, and directly, advised that (a) the relevant person to speak to about such matters, the project manager, Mr Riley, was not on site, (b) they could contact that person immediately by telephone, and (c) those to whom the union officials were speaking, which included the general foreman of the site, knew nothing about any such breach, questioned if there had been such a breach, and asked generally “what safety breach?” The union officials were also told that they could not come onto the building site. It is this last aspect alone that gives rise to these proceedings.
    2. The union officials took the advice to contact Mr Riley by telephone. There is no dispute that they did so. Mr Riley had detailed knowledge of the relevant incident – having been directly involved in it. Shortly after speaking with Mr Riley the union officials left the building site. This is to say, that upon speaking with Mr Riley they did not pursue their attempt to enter the site, even to inspect any records of the Fourth Respondent company, Iqon Pty Limited (“Iqon”).
  2. At no time during their relatively brief attempt to enter the work site did the union officials provide any details of the alleged breach. Because they did not do so, in my view, they acted contrary to s.767(1) of the WR Act, which proscribes a permit holder – as each of the union officials involved in these proceedings were - acting in “an improper manner.” As a matter of statutory interpretation, not to mention logic, the requirements of this section must be satisfied before there can be reliance on s.767(3), the section pursuant to which these proceedings are brought. Although there was (and is) no statutory requirement to provide particulars of the breach, in my view, the union officials’ conduct nonetheless offended Gleeson CJ’s principle in Lam: none of the respondents were provided with the most basic information about alleged “safety breaches.” Their conduct constituted what the Chief Justice described as “practical injustice.” More particularly, on the facts of this case, in my view their conduct amounted to acting in “an improper manner.” Simply to insist – without more - that there had been a “safety breach” was, on the facts here, insufficient and offended s.767(1) of the WR Act.
  3. Doubtless there will be times and circumstances when minimal information is necessary. The ACT OHS legislation (noted below) expressly recognises such a circumstance. However, on the facts and in the circumstances of this case, not to provide basic information about the alleged breach only had the effect of significantly restricting the capacity of the union officials from undertaking, let alone pursuing, the very investigations they in fact sought. Their actions ultimately hampered everyone. Such cannot have been, and was not (as I show later in these reasons), the clear intention of the Commonwealth Parliament.
  4. Moreover, in immediately providing information to the union officials to enable them to contact Mr Riley, the employees may reasonably be taken to have provided the most appropriate information sought by the officials. Indeed, the contact details of Mr Riley put the union officials in touch with the very person from Iqon who could provide the best evidence to them about the incident in question. The fact that the officials did not press their claim to enter the site after speaking with Mr Riley (another fact that was not in dispute) would seem to confirm that the officials recognised the centrality of Mr Riley – and no one else on site - to their inquiry. And by leaving the building site immediately, the actions of the union officials demonstrated their recognition that the very brief attempt to enter the site was otiose.
  5. On the facts of this case, because the conduct of the union officials (a) breached s.767(1) of the WR Act, (b) [which] constituted “practical injustice” to the respondents, albeit at the lower end of any scale of injustice, and (c) otherwise breached other sections and principles enshrined in the WR Act as detailed below, the application must be dismissed.
  6. For the sake of completeness, and as also explained in these reasons by reference to various decisions of the Federal Court in relation to penalty, in the event that (a) I am wrong in my interpretation and application of either or both s.767(1) and s.767(3), or (b) I had otherwise found that there had been a breach of s.767(3) of the WR Act, on the facts of the case the breach was of such a technical nature and of such modest circumstance and consequence – as acknowledged in submissions from Counsel for the Applicant in relation to penalty – I would likely have been minded to impose no penalty. As I explain briefly in the course of these reasons, the cost and other burden of the proceedings would have been penalty enough for all of the respondents. In the result, however, I do not have to make such a determination.
  7. In addition to the above, in my view, on the very limited information available to them at the time the two union officials involved in these proceedings did not have a sufficient basis upon which to form a `reasonable suspicion’ that there had been a `safety breach’ as they allege.
  8. There is one final matter to note. It is at least relevant to discretionary considerations regarding penalty. Arguably, its import is wider. As already noted, these proceedings were brought by Mr Hogan, an Inspector of the Australian Building & Construction Commission (“the ABCC”). In the course of submissions on his behalf, Counsel argued that the provision of details regarding OHS breaches was not a [statutory] requirement under the WR Act. Indeed, Counsel for the Applicant strenuously resisted the Respondents’ contention that the provision of basic detail of any alleged safety breach was essential to the case. Very curiously, however, in recent abuse of right of entry proceedings under Part 15 of the WR Act (the same Part in play in these proceedings) before the Australian Industrial Relations Commission, the ABCC argued that it was an abuse of that legislation not to provide particulars of such breaches.[8] How the ABCC could argue diametrically opposite positions in different forums in relation to the same Part 15 of the same legislation – at least in so far as it relates to the provision of particulars in relation to an alleged OHS breach - is remarkable, not to say unhelpful.
  1. The following reasons in favour of dismissing the application are organised as follows:

I. Introduction [1] – [4]

II. Statutory Framework [5] – [15]

III. Alleged Breaches & Evidence [16] – [78]

IV. Principles of Statutory Interpretation [79] – [83]

V. The Construction of Part 15 of the Act [84] – [96]

VI. The Construction & Application of s.767(1) [97] – [131]

VII. The Construction & Application of s.767(3) [132] – [139]

(i) Reasonable Suspicion [140] – [146]

(ii) Breach of OHS Law [147] – [155]

VIII Considerations as to Penalty [156] – [157]

IX. Conclusion [158] – [159]

I. Introduction

  1. The Applicant, Mr Hogan, is an Australian Building and Construction Inspector appointed under s.57 of the Building and Construction Industry Improvement Act 2005 (Cth).
  2. He has brought civil remedy proceedings under s.767(3)(b) of the Workplace Relations Act 1996 (Cth) (“the WR Act”) against Mr Riley, Mr Clark[9] and Mr Byatt, the first, second and third respondents respectively, who were (also respectively) a sub-contracted project manager, an employee - general foreman, and director of the fourth Respondent, Iqon Pty Ltd (“Iqon”). I do not understand there to be any challenge to Mr Hogan’s entitlement to bring the current proceedings.[10]
  3. Mr Hogan contends that, contrary to s.767(3) of the WR Act, the Respondents obstructed or delayed entry by two union officials to the site of the National Convention Centre at Constitution Avenue, Canberra in June 2007. According to their evidence, the union officials, both of whom are members of and employed by the Construction, Forestry, Mining and Energy Union (“the CFMEU”), had formed a “reasonable suspicion” that there had been a possible breach of the Occupational Health and Safety Act 1989 (ACT) (“the OHS Act”), and in turn, of the WR Act, which entitled them (so it is contended) to untrammelled access to the site.[11]
  4. For the reasons set out below, I do not accede to the application. There are a number of discrete but complementary routes to this conclusion. Each of them is set out in detail later in what follows.

II. Statutory Framework

  1. The statutory framework within which the proceedings were conducted, to speak broadly, encompassed relevant provisions located in Part 15 of the WR Act (s.767(1) & (3) in particular), and provisions in Parts 4 and 5 of the OHS Act.[12]
  2. Section 767(1) of the WR Act provides:
  3. The union officials were permit holders and therefore were authorised for the purposes contemplated by s.756 of the WR Act.
  4. Section 767(3) provides:
  5. Pursuant to the Workplace Relations Regulations (Ch 2, Pt 15, Div 1, reg 15.1), the OHS Act (ACT) is a prescribed OHS law for the purposes of ss.756 and 767 of the WR Act.
  6. Section 747 of the WR Act refers to the right of entry for a suspected breach of the Act, Commonwealth award, and related matters. Section 748 provides for certain rights for permit holders after entering premises. Section 760 refers to the right of entry of permit holders to hold discussions with employees.
  7. Section 756(1) of the WR Act provides:
  8. Sections 758 and 765 provide for certain limitations on OHS rights of entry, specifically concerning a permit holder failing to comply with a reasonable request to comply with an OHS requirement. For example, s.758(1) provides that a “permit holder must not enter, or remain on, premises under an OHS law unless the permit holder produces his or her permit for inspection when requested to do so by the occupier of the premises.”
  9. Section 758(3) provides:
  10. Five sections of the Occupational Health and Safety Act 1989 (ACT) are relevant to these proceedings: ss.37, 39, 77, 78 and 79. Those sections are as follows:[14]
  11. As already indicated, proceedings were commenced in this Court on 28th December 2007. No explanation was sought, or offered, nor was any submission made, in relation to the time between the date of the incident and the filing of papers in late December – approximately six months. Similarly, the curiosity of filing papers in such a matter during the Christmas and Law vacation 2007 was never explained. Unless there was some statistical necessity or other such reason to file within the 2007 calendar year, why the matter could not wait for filing until the new law term in 2008 remains a mystery. Nothing formally turns on these oddities.

III. Alleged Breaches & Evidence

  1. The Applicant’s Evidence: By an Application filed in this Court on 28th December 2007, Mr Hogan seeks:
    1. A declaration or declarations that the respondents breached s.767(3)(b) of the Act.
    2. An order imposing a pecuniary penalty under s.769(1)(a) on the respondents for contravention of s.767(3)(b).
    1. Such further orders pursuant to s.769(1)(c) as the Court sees fit.
  2. Particulars of the breaches complained of against each of the respondents are set out in paragraphs 11, 12, and 13-18 of the Statement of Claim, which was filed at the same time as the Application.
  3. In support of the Application, Mr Hogan filed an affidavit on 18th April 2008. That affidavit annexed, among other things, copies of (a) his appointment as an Inspector under the Building and Construction Improvement Act 2005, (b) the “incident report from Iqon”, and (c) various hand-written statements from some of the respondents (and others) about an incident that occurred on the site of the National Convention Centre on 7th June 2007.
  4. Mr Hogan filed a supplementary affidavit on 22nd July 2008. In that affidavit, he deposed (at par.26) to a conversation with Mr Byatt (the third respondent) in which the latter said words to the effect: “The CFMEU demanded access for OH & S. They wouldn’t tell the guys what the OH & S problem was. I wasn’t aware that there had been a breach.”
  5. Mr Hogan filed a third affidavit, on 30th July 2008. Annexed to that affidavit are two statements by employees of the Fourth Respondent –Mr O’Neil and Mr Perry – about the incident whereby the union officials were denied entry to the work site. The statements, dated 27th June 2007 and 4th July 2007 respectively, are essentially contemporaneous accounts of the relevant incident that gives rise to these proceedings.
  6. In both statements, the employees confirm the union officials stating that they wished to come on site and that they wanted to investigate “an OH & S Breach.” According to these accounts, no details were given of the alleged OHS breach. Only the bald statement or assertion was made that there had been such a breach. Similarly, these statements confirm that upon being told that the relevant officer of Iqon (Mr Riley) was not on site, and after Mr O’Mara, one of the union officials, was given Mr Riley’s telephone number (and after he called him), the union officials are alleged to have said that they would `come back later [or next week].’[16]
  7. The only matter of any substance that came from Mr Hogan’s oral evidence was that he agreed that he was not aware of any incident at a worksite – other than the one that gave rise to the current proceedings – that involved the Fourth Respondent company, Iqon.[17]
  8. Similar accounts of events were deposed to by, for example, Mr Kolano, a foreman on the site employed by the Fourth Respondent. He confirmed that he knew nothing about `any safety breach.’[18] As well, in cross-examination, Mr O’Neil confirmed that at no point did either of the union officials give any details of the safety breach alleged.[19] I stress that the statements of Mr O’Neil and Mr Perry were provided courtesy of the Applicant, Mr Hogan.
  9. The factual matrix out of which these proceedings emerge is relatively straight-forward. Some reference has already been made to it. Similarly, the legal issues for determination are not overly complicated; some reference has already been made to them also. However, by way of preliminary observation, it is quite plain that there is something of a disjuncture between the two. Put another way, the proceedings were rather disproportionate to the facts and issues involved. The following explains, among other things, why this was so.
  10. Summary of Evidence: The basic facts can be summarised as follows. The Fourth Respondent, Iqon contracted with the ACT Government to refurbish the National Convention Centre in Canberra. As I have already indicated, Mr Riley, Mr Clark and Mr Byatt, the first, second and third respondents respectively, were (also respectively) a sub-contracted project manager, an employee general foreman and director of Iqon.
  11. On 30th May 2007, Mr Thornton, a plasterer on the site, came down from a scaffold to mix some plaster. He was not an employee of Iqon but rather a sub-contractor to a trade contractor, TOK Pty Ltd. He left his helmet on a scaffold. The project manager, Mr Riley, challenged Mr Thornton about him not wearing a helmet (or hard hat). It is appropriate to characterise Mr Riley’s actions as seeking to enforce, in a quite literal way, OHS standards that require a person on site to wear a helmet. By any measure, the “breach” in not wearing a helmet, in the circumstances, was almost certainly not `life-threatening’ either to Mr Thornton or to anyone else on site.
  12. In something of a `tit-for-tat’ gesture, Mr Thornton tipped off Mr Riley’s hat, and reciprocated by yelling at him for not wearing a hat on site. Unsurprisingly, Mr Riley was unimpressed, just as Mr Thornton had been unimpressed by Mr Riley’s actions towards him.
  13. A brief scuffle took place between Mr Thornton, who is a largish man, and Mr Riley, who is not. Mr Thornton claimed to have been slightly injured by Mr Riley throwing a punch at him. On the evidence there is no dispute that a small, brief scrap took place.
  14. In the result, Mr Thornton was ordered off the site. In the larger scheme of things, without in any way minimising the importance of OHS issues, the initiating (and only) incident involved in these proceedings (as the contest between Mr Thornton and Mr Riley might accurately be called) could be described as something of a `storm in a tea-cup.’ However, as will be seen, the final brew turned out to be much stronger than anyone involved could have imagined at the time.
  15. Both Mr Thornton and Mr Riley swore affidavits for the proceedings and gave evidence at the trial.[20]
  16. I should note here that the litigation proceeded on the basis that the Court was not required to determine which version of the events involving Mr Thornton and Mr Riley should be accepted as the more accurate. As Ms McDonald, Counsel for the Applicant, quite properly said: “... the various accounts which Mr Thornton give really is not tendered on the basis of proving the ultimate truth of those matters but more that was his account and that was the account that he gave to the union officials.” Mr McCarthy, Counsel for the respondents, concurred.[21]
  17. Approximately one week later, on 6th June 2007, Mr Thornton went to the offices of the CFMEU. He made a complaint to two union officials, Mr O’Mara and Mr Kivalu, about Mr Riley and the contest with him the previous week.
  18. The next day Mr O’Mara and Mr Kivalu went to the site at the Convention Centre to make inquiries about Mr Thornton’s complaint and the incident that gave rise to it. They arrived at the site shortly before 8am on 7th June.
  19. The time of arrival is of very modest significance. Mr O’Mara deposed to arriving at the site at approximately 9am.[22] Mr Kivalu deposed to arriving at the site at approximately 8am.[23] The evidence of Mr Byatt, Mr Riley and Mr Kolano is all to the effect that the time the CFMEU officials arrived at the site was approximately 8am. I accept that this was the relevant time, although nothing much turns on it, save that it showed compliance with s.756(1)(b), which requires that a right of entry under an OHS law be exercised during working hours. Nor is there much significance in the inconsistency between the evidence of the two union officials regarding the time of the incident. That said, on such a relatively straight-forward fact, one might have expected more precision from witnesses for the Applicant.
  20. An Iqon employee, Mr Perry, noticed the arrival of the CFMEU officials and contacted the project manager, Mr Riley. At the time Mr Perry contacted him, Mr Riley was in a meeting at Calvary Hospital with other clients, quite some distance away from the National Convention Centre site. In those circumstances, Mr Riley told Mr Perry that there was no point in the officials coming on to the site.
  21. The union officials spoke to a worker on site and asked directions to the site office. The worker asked them to wait and rang the general foreman. The union officials waited outside the site.
  22. A short while later, Mr Clark, Mr Little, Mr O’Neil and Mr Kolano came to the place opposite where the union officials were waiting. The following conversations (or some version approximating them) and events took place, essentially between Mr Clark, Mr O’Neil, and Mr Riley, on the one hand, and the union officials (Mr O’Mara and Mr Kivalu) on the other.
    1. Mr O’Mara stated that he and Mr Kivalu wished to enter the site.
    2. Mr Clark (the general foreman) refused to let them do so. Mr Clark said that his instructions were not to let anyone on to the site unless they had given 24 hours’ notice. Unsurprisingly, something of a “stand-off” then ensued. Mr O’Neil rang Mr Byatt. The latter told Mr O’Neil that the last time Iqon had dealings with the union, 24 hours’ notice had been given. Mr Byatt confirmed that unless such notice was given, the officials should not be permitted to come on to the site.
    1. Mr O’Neil passed this conversation and advice to Mr Clark. Mr Clark confirmed to the officials that 24 hours’ notice was required to enter the site.
    1. Mr O’Mara stated that because the breach complained of involved a “safety breach” no such notice was required and that the officials could enter the site immediately. No details of the “safety breach” were provided.
    2. Mr Clark inquired about the safety breach. Mr O’Mara said in reply that there had been “an incident.” Again, no further details were provided. Mr Clark said that he knew of no “incident” and confirmed again that he was instructed not to let the officials enter the site without 24 hours’ notice.
    3. Mr O’Mara asked if the officials could speak with the project manager. He was advised by Mr Clark that the project manager (Mr Riley) was not there. Mr O’Mara asked for that manager’s telephone number. He was given Mr Riley’s number.
    4. Mr O’Mara walked away from the immediate area to call Mr Riley. Mr O’Mara advised Mr Riley of the purpose of their attendance at the site, namely to check up on an alleged safety breach that involved one of the Union’s members. He also advised that he was not impressed with the way the officials had been met at the gate.
    5. Mr Riley confirmed to Mr O’Mara that he was off-site at a meeting at Calvary Hospital. He confirmed that he would ring Mr O’Mara when he returned to the site. It is not in dispute that this promised call did not eventuate. Mr Riley gave evidence to the effect that he did not call Mr O’Mara because he became aware that Mr Byatt, a director of Iqon, had been contacted by the CFMEU.[24]
    6. Following the phone call to Mr Riley, Mr O’Mara returned to the site entrance. He and Mr Kivalu left the site.[25]
    7. In statements made on or about 7th June 2007 by Mr O’Neil and Mr Perry, both of which are annexed (annexures “A” and “B” respectively) to Mr Hogan’s affidavit filed on 30th July 2008, each employee of Iqon states that the union officials said words to the effect that they would be `coming back later to discuss this issue.’
  23. In sum, the union officials contend that they had formed a view - or held a reasonable suspicion - about the safety of the workplace at the National Convention site because of bullying or assault,[26] and that they were prevented, or unduly delayed, from entering a construction site by, among others, the second and third respondents. They contend that they were prevented from entering the work site because of a direction from the first Respondent, Mr Riley, to workers at the site.[27]
  24. I will deal later in these reasons as to whether the facts sustain the contention that the union officials’ held a `reasonable suspicion’ regarding the safety of the workplace in the light of the High Court’s decision in George v Rockett.[28]
  25. Summarily stated, it is further contended that the union officials (Mr O’Mara and Mr Kivalu) from the CFMEU -
    1. had a reasonable suspicion that there had been an OHS `safety issue’ at the site of the National Convention Centre,
    2. were clearly identified as representatives of the union,
    1. had the requisite permit or authorisation to enter the site,[29]
    1. advised the respondents that they were there to investigate a safety breach, and
    2. were not required to give any notice of their intention to enter the site: in relation to OHS issues, they could, under the WR Act and under the OHS Act, enter the premises provided they had the requisite permit and sought entry `during working hours.’[30]
  26. Mr O’Mara confirmed two things at the outset of his cross-examination. The first is best conveyed by the exchange taken from the transcript of his evidence, which is as follows:[31]
  27. This exchange is relevant, among other things, to Mr O’Mara forming, as required under the legislation, a “reasonable suspicion.” I observe, however, that Mr O’Mara originally – and more spontaneously – answered the question about wanting simply to speak with Mr Riley. He then amplified or corrected his answer to make sure that it conformed to the requirement of `forming a reasonable suspicion’ that there had been an OHS breach. Simply to go and to speak with Mr Riley would not, in my view, without more, satisfy s.77 of the OHS Act.
  28. Secondly, in a more extended part of his early cross-examination, Mr O’Mara confirmed that he went to the National Convention site to speak with Mr Riley. He was at some pains to distinguish between wanting to speak with Mr Riley (a) because of him being involved in the incident with Mr Thornton, and (b) because he was the project manager. While I readily accept that it will likely be the case that a person involved in an incident of the kind here, and the project manager of a building site, will often if not usually be two separate individuals, in this case they were one and the same people. Why Mr O’Mara was so insistent on making that distinction remains a little hard to fathom.
  29. In any event, the reality is that Mr O’Mara confirmed that he went to the site to speak with Mr Riley. He did so, he said, because “... we would have wanted to speak to the project manager ... because he would have been the most senior person in the company on the job, and so we would have liked to have spoken to him to – as per our procedure – sign in and do what we would usually do on a visit to a site.”[32]
  30. The reality is that Mr O’Mara did speak with Mr Riley, albeit not at great length or detail about the incident in question. Thus, Mr O’Mara’s specific, stated objective was, in fact, achieved. I move to other evidence.
  31. Documentary Evidence: Admitted into evidence were the following:
    1. Email correspondence from Mr Hogan to Mr Byatt, dated 7 June 2007. (Exhibit “F”)
    2. Iqon Training Detail and Record Form, dated 21 June 2007. (Exhibit “G”)
    1. Australian Building and Construction Commission Information Kit (containing Fact Sheets: “Right of Entry – Federal Union Officials: What to do when visiting a site” and “Right of Entry – Subcontractors: What to do when a union official comes on your site.” [Both dated 15 August 2006]) (Exhibit “H”)
    1. Office of the Australian Building and Construction Commissioner (“ABCC”), Right of Entry: A Pocket Guide to Right of Entry on Your Site (26 February 2008) (Exhibit “I”)
    2. Fact Sheet from ABCC website, Right of Entry – Federal Union Officials: What to do when visiting a site (28 March 2008). (Exhibit “J”)[33]
    3. Letter from Mr Byatt (Iqon) to Ms Schoonwater (CFMEU): 22 June 2007 (Exhibit “K”)
    4. Letter from Mr Byatt (Iqon) to Ms Schoonwater (CFMEU): 14 June 2007 (Exhibit “L”)
  32. The relevance of these exhibits is as follows.
  33. The email correspondence (Exhibit “F”) does a number of things. It confirmed that (i) Mr Hogan and Mr Byatt had spoken on 7th June about the incident on the site earlier that morning; (ii) Mr Hogan offered to provide a presentation to Iqon’s site management personnel “on union right of entry” and other matters; (iii) Mr Hogan attached to the email the National Code of Practice Guide and Compliance Checklist; (iv) Mr Hogan also gave Mr Byatt the web site address for the ABCC so as to enable access to the ABCC Fact Sheets in relation to `union right of entry.’
  34. In reply, Mr Byatt’s email to Mr Hogan, also dated 7th June 2007, stated:

Gerard, thanks for your assistance and advice provided this morning.

Note I have since spoken to Jason O’Mara and explained the misunderstanding regarding entry rights for OHS breaches and advised we are happy to escort Jason through the site to review the OHS breaches suspected which they wanted to follow up.
For your information the reason for the visit was to discuss an altercation on 30th May where a subcontractors [sic] employee did not act on a [sic] instruction by our site representative to use his employer provided PPE.[34] This matter escalated into a heated argument and resulted in the subcontractors [sic] employee being escorted from the site. The CMFEU this morning wanted to discuss this matter with the Project Manager given a complaint had been made by one of their members.
  1. This correspondence speaks for itself. I do not regard it as any form of admission as to the contravention alleged. This is especially so given that the email refers to “OHS breaches.” As already confirmed, there was only ever one allegation about one OHS `safety breach.’ Rather, it is a statement of fact regarding the confusion that arose, to a significant degree, because of the lack of particulars provided by the union officials in relation to the alleged “security breach” and the fact that they wished to speak to the Project Manager. They did so, albeit by telephone, within a short time of their arrival on site. There is also no doubt that the email correspondence confirms that to some degree Iqon misunderstood its rights and responsibilities under the WR Act regarding right of entry in relation to OHS issues. And the correspondence is consistent with Mr O’Mara’s evidence to the effect that he went to the site to speak with Mr Riley following a complaint by Mr Thornton. A single complaint, as outlined on the facts here, does not (and could not), without more, constitute a safety breach of OHS law.
  2. In due course I will come back to the recent decision of the Australian Industrial Relations Commission in Australian Building and Construction Commission v McLoughlin[35] in dealing with a number of matters raised in these proceedings. However, it is apt to note here the following comments from that decision.
  3. Commenting on a situation where there were numerous allegations regarding breaches of different aspects of right of entry provisions of the WR Act, Watson SDP observed in relation to one such incident, which involved a breach of s.758(3): “This occurred, in my view, in circumstances of aggressive approaches and resolute insistence on their respective positions by both Mr Peterson and Mr McLoughlin. To the extent there was a confrontation, both players shared some responsibility.”[36] The observations and comments regarding “aggressive approaches and resolute resistance”, and “shared responsibility” are an apposite description of the actions and events that give rise to these proceedings.
  4. The failure to provide particulars of the “safety breach” should not be taken as a criticism of Mr O’Mara and Mr Kivalu. Rather, their repeated use of the phrase that there had been such a breach, without more, seemed simply to reflect their understanding of all that was required.
  5. Put another way, I do not regard, and I do not consider the WR Act to provide, that the mere recitation of the words “safety breach” (or words to that effect) provide “carte blanche” entry to every building site. They do not, without relevant particulars, constitute a modern-day, legislatively-sanctioned form of the famous phrase in The Arabian Nights to enter the robbers den through recitation of the incantation, “open sesame”, or the more recent invocation in Tolkien’s Lord of the Rings by Gandalf to speak the Elvish word for “friend” to enter the safety of the mines of Moria. In my view, incantation or recitation, without the most basic particulars, is insufficient under the detailed regime prescribed by the WR Act.
  6. The ABCC Fact Sheets – in any of their various manifestations, and to which I will refer in detail later - make plain that sufficient particulars of the alleged breach must be given in order for the employer or occupier to comprehend what the breach is and why the union officials are seeking entry, without notice, to the site. Although not legislatively prescribed, this basic information is in conformity with the objects of the WR Act generally and Part 15 in particular.
  7. That said, it is strongly arguable that the Fact Sheets are misleading in that they represent an obligation to provide particulars when there is no formal, statutory requirement to do so. As well, by Mr Hogan referring Mr Byatt to the ABCC website and its Fact Sheets, together with his later presentation to Iqon personnel at which the Right of Entry Fact Sheets were circulated,[37] one might reasonably ask how the ABCC, on the one hand, could promote these Fact Sheets, and on the other hand, months later institute proceedings knowing that basic details of the incident in question had not been provided to the respondents, contrary to the information and “requirements” provided in the ABCC’s Fact Sheets?
  8. The Iqon “Training Detail and Record Form”, dated 21st June 2007 (Exhibit “G”), confirmed the attendance by a significant number of employees and senior management at a presentation given by the Applicant, Mr Hogan. That presentation concerned “right of entry regulations.” It was described as an “explanatory presentation by ABCC.” In many respects, one might wonder, not unreasonably (to put the question again but in slightly different terms), why the cost and time of litigation was considered necessary (a) in the light of the nature and circumstances of the incident in question, (b) in the light of the “explanatory presentation” to Iqon personnel, (c) so many months after the incident, and (d) after Mr Hogan had distributed the Fact Sheets as part of the ABCC’s information kit at a presentation to Iqon personnel only a short time after the incident that gives rise to these proceedings?
  9. The ABCC Fact Sheets (Exhibits H, I & J) conform generally to the detail and principles of the WR Act as outlined in the Explanatory Memorandum, although the latter document is hardly a great example of either clarity or assistance. In large measure it merely parrots the section in question. The absence of basic information of the kind indicated in the Fact Sheets placed everyone in an untenable, indeed unfair, position. Such was the circumstance, in my view, which confronted the Iqon employees and management on 7th June 2007.
  10. As well, in failing to provide even the most basic information about the alleged “safety breach”, the union officials placed themselves at a disadvantage. Providing relevant particulars would have been a protection for them. In a number of respects it would have ensured that they could not be accused – then or subsequently – that they were either “fishing” for information and/or that their visit was anything other than bona fide.
  11. It is helpful again to note the following instructive comments from ABCC v O’Loughlin, where Watson SDP said: “When reviewing the evidence in relation to the ... site, I was reminded of similar circumstances in my experience, dealing with right of entry disputes, where some sensible communication and negotiation can facilitate a harmonious and co-operative approach to the right of entry.”[38] Quite clearly, “sensible communication and negotiation” did not occur at the outset of this matter. Hence there was not – until shortly afterwards – a “harmonious and co-operative approach to the right of entry.”
  12. One other curiosity, already noted, arises from the ABCC v O’Loughlin judgment. Among other allegations of “abuse” raised by the ABCC Inspector in that case concerned the refusal “to cite particulars of the nature of the OHS issues...”.[39] The ABCC Inspector in that case clearly took a very different view to Mr Hogan in these proceedings in relation to the necessity and importance of the provision of details of alleged OHS breaches.[40]
  13. I should note here that the “Incident/Dangerous Occurrence Report” prepared by Iqon (dated 12th June 2007), which is Annexure “B” to Mr Hogan’s affidavit filed 18th April 2008, states: “Details of Injury/Occurrence: There was no injury or dangerous Occurrence. This is only an Incident Report.” The same Report continues: “Jason O’Mara and Halafihi [Kivalu] requested permission to enter the construction site about the incident on Wednesday 30/054/07 [sic].”
  14. The Iqon Report also summarised the contest between the union officials and Iqon employees on 7th June, and noted that “Jason O’Mara then advised that they would obtain further paperwork and return later.”
  15. Under the heading “Incident Response”, the Report states: “The factors contributing to the incident was some lack of understanding or [sic] the powers of entry by Union officials.” The Report advised that the level of priority in response to the matter was “High Priority” and that there should be a change to training regarding the instruction given “... to Iqon staff of the powers that persons have to enter a construction site, either with or without notification.”
  16. Exhibits “H”, “I”, and “J” have the following in common. First, leaving aside uncontentious matters (such as holding a valid permit), they all refer to the requirement that the visit by the union officials must only occur “during work hours and hold discussions during meal times or other breaks.” These Fact Sheets also state it to be a requirement that when entering to investigate a suspected breach, the union officials must “provide sufficient details and facts which give rise to the breach on the notice.”
  17. Each of these Fact Sheets highlight: “If you do not meet these requirements you do not have the right to enter the site,” (Exhibit “J”); “If any of these requirements have not been met you have the right to refuse entry” (Exhibit “I”); “If you do not meet these requirements you have no right of entry to the site,” (Exhibit “H”).
  18. Very helpfully, Counsel for the Applicant recently provided to the Court a comparative table of what statutory requirements apply regarding the provision of information. Ms McDonald’s table makes plain that (a) there was no express statutory requirement to provide particulars, but, as a consequence, (b) the ABCC Fact Sheets are clearly in error, at least in so far as they may purport to rely upon statute to ground their assertion that “sufficient details and facts which give rise to the breach on the notice” are to be provided.[41]
  19. Exhibits “K” and “L”, the correspondence between Mr Byatt on behalf of Iqon and Ms Schoonwater of the CFMEU, confirm Iqon’s straight-forward co-operation with the union in providing copies of its earlier incident report concerning Mr Thornton’s contest with Mr Riley, as well as its policy in relation to violence. The letter of 22nd June also confirmed that a meeting with, and site visit by, Mr O’Mara had been arranged for 25th June 2007.
  20. As far as the oral evidence was concerned, the following will suffice.
  21. The Oral – and Other - Evidence: I do not consider that any witness who gave evidence in Court was untruthful. Unsurprisingly, there were some variations in the recollections of witnesses about the incident of 7th June. By way of general comment, in my view, the more accurate accounts were those given by Mr Byatt, Mr Riley and Mr Kolano. To the degree that there is any inconsistency in the account of relevant events, I prefer their evidence to that of Mr O’Mara and Mr Kivalu. A few examples will be sufficient.
  22. In his affidavit of 15th April, Mr O’Mara deposed (par.19) to one of the Iqon employees saying to the union officials that “... it is our company policy that the union is not allowed on our sites.” Such a bald statement, and in the light of the evidence more generally, is inherently implausible. How or why any company, let alone a company such as Iqon, which does significant work with and for government,[42] could or would have such a “policy” beggars belief. It struck me as folly to make such a claim. It was also formally repudiated by Mr Byatt.[43] Mr Byatt was a particularly impressive witness who gave his evidence directly, unhesitatingly and, in my view, with significant candour.
  23. Similarly, the measured, almost irenic, statements in Mr O’Mara’s affidavit (and similarly in Mr Kivalu’s affidavit) would suggest that the union officials (a) never used strong language, and (b) were always trying to soothe, and did nothing to exacerbate, the somewhat tense situation at the site on 7th June 2007. Their evidence in this regard had an air of unreality about it. And in any event, in his oral evidence, Mr O’Mara acknowledged that strong language was used by all at the site on the occasion in question.[44] Nothing obviously turns on this.
  24. Mr O’Mara also deposed (par.19) to advising the Iqon workers that they “should get some advice because what you are doing is illegal and is in breach of the Act and you could be personally liable.” Having regard to the totality of the evidence, and having had the benefit of seeing and listening to Mr O’Mara in the witness box, in my view, it is improbable, to a significant degree, that the language deposed to, and the content of this statement, was ever used or made. Certainly, there was no corroborative evidence from anyone in this regard. In fact, the evidence pointed more the other way.
  25. In saying this, Mr O’Mara was not asked questions on these matters directly. Nor was Mr Kivalu asked questions regarding his also rather implausible statement, allegedly made on 7th June, to the Iqon workers that he would show them a copy of the Act “that says you are obstructing our right of entry today.”[45] Technically, in the absence of challenge to this evidence, it should be accepted.[46] As Wells J said in Reid v Kerr:[47]
  26. In these proceedings, the reality is that there was never any question as to what issues of fact were in contest. There was, in my view, never any risk of the factual, or the legal, issues in this matter `passing serenely by like two trains in the night.’ If anything, the factual and legal contest was more akin to two trains speeding directly towards each other. Put more delicately, particularly on the affidavit evidence relied upon by both parties, but also in reliance on the evidence at trial, the issues of fact “were well and truly joined.” And as the Full Court of the Federal Court said in Flower & Hart v White Industries (Qld) Pty Ltd,[48] “... there can be no need to put ... an issue to a witness who has notice that there is other material in the proceedings that will be relied upon to contradict the evidence of the witness.”
  27. Moreover, for the reasons already given, there are elements of the evidence of both Mr O’Mara and Mr Kivalu, which in the scheme of things had an air of unreality about them. In the light of the authorities already cited, simply because a statement or other evidence is unchallenged does not require the Court slavishly to admit that evidence or to rely on it. Ultimately, it is always for the Court to determine the veracity and weight of all the evidence.
  28. All of that said, nothing essentially turns on the disparities and other matters to which I have referred. As previously indicated, they are simply examples to support me holding that I prefer the evidence given on behalf of the respondents to that given by Mr O’Mara and Mr Kivalu where there is any inconsistency between the accounts given.
  29. I turn to the elements of the construction and application of the WR Act.

IV. Principles of Statutory Interpretation

  1. The Applicant’s case that there was a breach of s.767(3) of the WR Act has an appealing simplicity and economical logic. According to Counsel’s submission, the elements of the contravention, under s.767(3)(b), are as follows:
    1. a person must not refuse or unduly delay entry to premises;
    2. by a permit holder;
    3. who is entitled to enter premises under an Occupation Health and Safety law; and
    4. entry is in accordance with s.756 of the WR Act.
  2. I agree with the Applicant’s submission that the elements of the contravention are determined by the terms of the section. So much was said by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority.[49] Ms McDonald, Counsel for the Applicant, recounted the majority’s judgment this way. In her written submissions of 13th October 2008 (par.7), she said that “it was the court’s duty in interpreting any statutory provision to give the words of that provision the meaning that the legislature intended they have, which is usually their grammatical meaning.”
  3. However, it is important to consider the more fulsome observations of the majority (McHugh, Gummow, Kirby and Hayne JJ) in that case. The High Court said (omitting internal citations):[50]
  4. In addition to the High Court’s clear instruction in Project Blue Sky, the earlier High Court decision of Mills v Meeking[52] is also relevant to these proceedings. In that case, Dawson J (dissenting, but not on this point) said:[53]
  5. As stated by Pearce and Geddes in Statutory Interpretation in Australia,[54] Dawson J’s comments apply to s.15AA of the Acts Interpretation Act 1901 (Cth). That well-known section provides: “In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”[55] In the light of the principles of statutory interpretation just outlined I turn to consider the objects of the WR Act and of Part 15 in particular.

V. The Construction of Part 15 of the WR Act

  1. The Applicant’s case, as distilled in Counsel’s succinct submissions, and as already outlined, is that the matter may be resolved by a literal application of s.767(3)(b) of the WR Act. Having regard to the objects of the WR Act in s.3, and even more relevantly, the objects in s.736, in Part 15, of the WR Act, I do not accept that that course is either warranted or appropriate. It is too narrow a view of the section because, in my view, it must be read in the light of the objects of the WR Act, and particularly the objects of the Part in which the section is located.
  2. I will deal firstly with the objects of the WR Act, then with the objects of Part 15 concerning “Right of Entry.”
  3. Section 3 of the WR Act states that the “principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia....” That section then enumerates fifteen (15) sub-paragraphs, each of which seeks to describe various goals and or objects in relation to the resolution of disputes between employees and employers, and compliance with minimum standards. It may be said that an aspirational object that is found in a number of these sub-paragraphs is to promote `harmonious and productive workplace relations’, which is to be secured by `flexible mechanisms for the voluntary settlement of disputes.’[56] These objects that focus on `co-operative workplace relations’ are important in this case if for no other reason than to be a particular point of reference for the interpretation and application of the sections centrally in play in this case.
  4. Unfortunately, the Explanatory Memorandum to the WR Act sheds little light on the principal object in s.3. It simply states that the object of the Act “reflects the proposed more flexible, simpler and fairer system of workplace relations for Australia.”[57]
  5. Similarly, the Minister’s comments in relation to the objects of the Act in his Second Reading Speech are, to use the recent words of Heydon J (dissenting and in another context), “too vague to indicate what the precise construction of the words ... is.”[58] They are more hortatory or declaratory than explicatory.
  6. The objects of Part 15 of the WR Act, which governs “right of entry”, are set out in s.736 of the WR Act. Those objects are:
  7. The Explanatory Memorandum in relation to the objects of Part 15, set out in s.736, is somewhat more helpful than in relation to other parts of the legislation. For example, among other matters highlighted in the Explanatory Memorandum is that the right of entry provisions would “more clearly set out the rights and obligations of organisation officials, employers and occupiers of premises.”[60] At the same place, the Memorandum goes on to say that the “proposed right of entry regime will impose additional conditions upon the exercise of certain rights of entry provided under occupational health and safety legislation ....” A little later the particular objects of Part 15 are expressed so as “to ensure that permit holders are fit and proper persons and understand their rights and obligations under this part” as well as to “ensure that occupiers and employers understand their rights and obligations under this Part....”[61] Thus, there are, as an expression and or explanation of legislative intention, mutual obligations on the part of permit holders and occupiers and employers. One might query whether the union officials understood (or adequately so) their rights and obligations under Part 15. This is not intended to be a formal criticism. Their apparently limited or incomplete understanding of their rights and obligations may be and likely is through no fault of their own. One might also question whether the Applicant checked with the union officials the details and accuracy of their understanding of their rights and obligations. There is of course no evidence before the Court in relation to these matters.
  8. Likewise, the Minister’s Second Reading Speech is somewhat more helpful regarding `right of entry’ than it was in relation to the objects of the WR Act. For example, the Minister said: “While employers and employees covered by Work Choices will not be subject to regulation by state employment laws, state laws will continue to cover such matters as occupational health and safety, workers compensation, trading hours and public holidays.”[62]
  9. A little later, the Minister said:

The right of entry provisions will still allow a union permit holder entry for occupational health and safety purposes under state legislation where the union official has a federal right of entry permit and has complied with all requirements of the relevant state occupational health and safety legislation.[63]

  1. One final comment should be noted from the materials tabled in the Parliament in relation to the WR Act. Part of the Explanatory Memorandum included the standard and customary Regulation Impact Statement. That Statement contained a section entitled “Expand and improve the federal union right of entry regime.” The fifth point under that heading stated: “require a union official to provide to the employer particulars of a breach that he or she is proposing to investigate.”[64] This statement from the Explanatory Memorandum requires no further comment.
  2. In sum, the objects of the Act in general, and of Part 15 in particular, readily highlight – in the words of the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd,[65] and in Newcastle City Council v GIO General Ltd[66] - `the mischief which the statute was intended to cure’, albeit that the objects are couched, necessarily, in quite general terms.
  3. In my view, given the particularity with which the legislature has crafted the WR Act, and in accordance with the High Court authority noted, this Court must have due regard to the objects of the Act and those in Part 15 in properly interpreting and applying s.767(1) and s.767(3)(b) for the purposes of the matters in dispute in these proceedings. The objects highlight `the mischief the statute was/is intended to cure,’ which is, as set out in the Explanatory Memorandum in relation to the Act as a whole, to provide for a “more flexible, simpler and fairer system of workplace relations in Australia.”[67] I accent the Act’s focus on “fairness”, which, in my view, conforms to Gleeson CJ’s reference in Lam, to which I referred at the commencement of these reasons, regarding the law’s concern “to avoid practical injustice.” To the degree necessary, this must inform the determination of the issues currently before the Court.
  4. The Explanatory Memorandum also provides that, to a significant degree, the operation of the WR Act is predicated upon each party to a dispute taking steps to inform the other party of the nature of the basis (or bases) for the issue(s) in dispute. I will consider this aspect in more detail when considering the particular sections of the WR Act.

VI. The Construction & Application of s.767(1) of the WR Act

  1. As already indicated, these proceedings were instituted and conducted on the basis that there had been a breach of s.767(3) of the WR Act. Clearly, that is but one side of the equation, which focuses attention on the conduct of the Respondents. Unsurprisingly, Counsel for the Respondents focussed attention on the conduct of the union officials. He submitted that their actions were unlawful. I will deal with that submission, which turns in large measure on the operation of s.77 of the OHS Act (ACT), soon enough.
  2. Counsel also focussed at length on the failure of the union officials to provide particulars of the alleged `safety breach’ as a further ground for denying the relief sought by the Applicant, Mr Hogan. In my view, the focus on the conduct and actions of the CFMEU officials necessarily brings in to play, s.767(1) of the WR Act. Although not raised in terms, (a) the detailed submissions on behalf of the Respondents in relation to the union officials’ failure to provide relevant particulars, and (b) by the respondents more generally challenging the lawfulness of the conduct of the union officials, requires the Court to measure that conduct not only in the context of s.767(3) but also against the criteria determined by Parliament as set out in s.767(1). Clearly sub-sections (1) and (3) of s.767 are mirror provisions: Parliament’s clear intention, expressed in the section, was and is to focus equal attention on the conduct of permit holders and those whose conduct may impede or obstruct the `proper conduct’ of permit holders. Section 767 requires the Court to consider the conduct of both sides – if not all sides. To focus on one side only is inapt.
  3. Whether s.767(1) is considered before or after the case advanced by the Applicant under s.767(3) is of little moment. In my view, it must be considered. Logically, given that the union officials’ actions occurred first in time, and initiated all that has occurred subsequently, it is more appropriate to consider s.767(1) now.
  4. For ease of reference, I repeat s.767(1). It provides: “A permit holder exercising, or seeking to exercise, rights (a) under s 747, 748 or 760; or (b) under an OHS law in accordance with s 756 or 757; must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.”
  5. Section 756 of the WR Act requires that a union official who has a right of entry under an OHS law to enter premises “must not exercise that right unless the official” `(a) holds a permit under Part 15 and (b) exercises the right during working hours.’
  6. The first question for consideration and determination is whether the actions of the union officials on the morning of 7th June 2007 contravened s.767(1) of the WR Act. As already noted (and on more than one occasion), the respondents argued, among other things, that the actions of the union officials were unlawful.
  7. Although challenged to some degree, in my view, the union officials held a valid permit. Secondly, although there was some conjecture regarding the time at which they sought to enter the site, on whatever view is advanced, it occurred “during working hours.” The issues that remain, therefore, are whether the action(s) of the union officials `intentionally hindered or obstructed any person’, or whether they `otherwise acted in an improper manner.’ As already indicated, I will deal with the submission that their actions were unlawful because of the operation of the OHS Act (ACT) in due course. At that time, I will also deal with the challenge to the union officials’ contention that they had formed – or had grounds for doing so – a “reasonable suspicion” about an alleged safety breach involving the respondents.
  8. In my view, for the following reasons, the actions of the union officials offended one or both of these, admittedly broad, proscriptions in s.767(1). In failing to provide the most basic information of the alleged OHS breach to any person on site (as opposed to whatever was the substance of the discussion via mobile phone with Mr Riley), in my view they intentionally hindered or obstructed those on the site in dealing appropriately with the situation with which they were confronted. Their actions clearly disrupted, albeit perhaps only slightly, work on site. Likewise, in my view, on the facts and in the circumstances of this matter the failure to provide the most basic particulars of the alleged breach to those on the site on that June 2007 morning resulted in the union officials `otherwise acting in an improper manner,’ contrary to s.767(1) of the WR Act.
  9. As to what does, and what does not, constitute acting in “an improper manner” there is a wide range of authority. In Tofilau v R,[68] Gleeson CJ, at [6], said: “The concept of voluntariness, which is significant in many legal contexts, is protean.” His Honour’s description of that concept as “protean” is similarly applicable in relation to the following discussion of what is and what is not “improper.”
  10. If it were necessary to assign a greater proportion of culpability or responsibility between the alternative proscriptions that are set out in s.767(1), in my view the very wide terms of “otherwise act in an improper manner” in the section provides a secure ground for dismissing the application.[69] In more detail, this may be explained further as follows in accordance with the prescription of Gummow and Hayne JJ in Angas Law Services Pty Ltd (In Liquidation) v Carabelas.[70] That case concerned a director’s “improper use” of his position as a company officer. Gummow and Hayne JJ said, at [54]: “What is meant by “improper” should be considered by reference to the legislative history, relevant authorities and matters of principle.” I have already dealt with the limited “legislative history” of relevant provisions (with some others still to come); what follows deals with the “relevant authorities and matters of principle.”
  11. `Relevant Authorities & Matters of Principle:’ The Macquarie Dictionary defines “improper” as: “not proper; not strictly belonging, applicable or right; not in accordance with propriety of behaviour, manners, etc; unsuitable or inappropriate, as for the purpose or occasion; abnormal or irregular.”[71] The Oxford English Dictionary is to similar effect. It defines “improper” as including: “... not in accordance with truth, fact, reason, or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong; [n]ot in accordance with the nature of the case or the purpose in view; unsuitable, unfit, inappropriate, ill-adapted.”[72]
  12. But, as the High Court implied in the text quoted above from the joint judgment of Gummow and Hayne JJ in Angas Law Services, the understanding and determination of what constitutes acting in “an improper manner” clearly needs to be founded on more than lack of conformity with dictionary definitions. Relevant authorities need to be considered. They follow.
  13. The Full Court of the Federal Court (von Doussa, O’Loughlin & Branson JJ) considered the word “improper” and “improper conduct” in O’Connell v Palmer.[73] That case involved a police officer being charged before a Police Disciplinary Tribunal with “improper conduct.” The question was whether unlawfully executing a warrant before it came into the possession of the police officer constituted “improper conduct” under the Australian Federal Police (Discipline) Regulations 1979.
  14. The Full Court used similar definitions to those to which I have already referred from the Macquarie Dictionary to conclude that the conduct of the police officer constituted “improper conduct” under the regulations. The Court said that the policeman’s conduct came within the definition of “not in accordance with propriety of behaviour, manners, etc.” Quoting from the Concise Macquarie Dictionary the Court held that the regulations were “... directed at conduct which may be regarded as lacking propriety or as unbecoming or unseemly in the circumstances. We do not regard the regulation as seeking to embrace in addition conduct which is merely technically irregular.”[74]
  15. Before considering High Court authority, it is instructive to attend to three other decisions. In Bercove v Hermes (No.3), the Full Court of the Federal Court (Bowen CJ, Lockhart & Beaumont JJ), upheld a decision of Morling J in the course of which the Court considered his Honour’s discussion of what constituted “improper conduct” under the Public Service Act 1922 (Cth). The case concerned a senior legal officer in the Deputy Crown Solicitor’s office but who was also engaged in his wife’s escort business. Morling J considered that `the perception by members of the public’ about the activities of the officer in this “business” was relevant to the Disciplinary Appeal Board’s findings that his conduct was “improper.”[75] The Full Court accepted generally Morling J’s discussion of and findings in relation to “improper conduct.”[76] It would seem that the perception by members of the public is something that can be relevant in assessing whether conduct is “improper.”
  16. This may well be relevant here as to whether members of the public would regard the conduct of the union officials in this case, in not providing particulars of the safety breach alleged, as improper. In my view, there is a high degree of probability that members of the public would regard their actions as improper, understood in the sense of `unsuitable or inappropriate for the purpose or occasion,’ on the facts involved here.
  17. In Hardcastle v Commissioner of Police,[77] the Full Court of the Federal Court (Bowen CJ, Gallop & Lockhart JJ) considered the expression “improper conduct” in the context of police disciplinary proceedings. The Court said, at p.597:
  18. I repeat that there is no suggestion, nor could there be, that the actions of the union officials here involve any hint of criminality, bad faith or contumelious conduct. That is certainly not the case. The question for determination, for the purposes of s.767(1), is whether their conduct, in all the circumstances, was “improper.”
  19. In Willers v R,[78] the Court of Criminal Appeal of Western Australia considered at some length what constituted “an improper purpose” in relation to a person who was charged with an offence under s.83 of the Criminal Code (WA). That section dealt with corruption by a public officer. The section is in that part of the Code which deals with abuse of office. Accepting that the context of the Court’s discussion was an appeal in a criminal matter, the Court’s discussion of what constituted an “improper purpose” is another example which is helpful – perhaps only somewhat analogously – in the consideration of matters before this Court. The judgment of Malcolm CJ is perhaps the most instructive.
  20. Malcolm CJ’s discussion drew extensively from the High Court’s consideration of s.229 of the Companies (Western Australia) Code in Chew v R.[79] The Chief Justice confirmed that in the context of the Companies Code, “improper” is not to be considered “a term of art, but simply to refer to conduct by an officer of a company which was inconsistent with the proper discharge of the duties, obligations and responsibilities of the officer concerned.”[80]
  21. A number of very, and somewhat, recent High Court cases are relevant because each of them deals with notions or understandings of “improper” or `standards of propriety’, accepting of course that each case arises in different contexts and within different statutory circumstances to the present proceedings. In chronological order, the cases are: Chew v R, R v Byrnes, Doyle v Australian Securities and Investments Commission, and Alinta LGA Ltd v Mine Subsidence Board.[81]
  22. In Chew the Court considered what constituted “improper use” of his position as a director of a company for the purposes of s.229(4) of the Companies (Western Australia) Code. Breach of that section incurred a penalty of either a fine or imprisonment, or both. As explained and used in the later case of Byrnes (which also was a case involving breach, but this time, of the Companies (South Australia) Code), the High Court confirmed that Chew approved an objective test of “impropriety” (as opposed to “improper”).[82] In Byrnes, the High Court provided an extended discussion of what amounted to “improper use.” The Court (Brennan CJ, Deane, Toohey & Gaudron JJ) used interchangeably “improper use” and “impropriety.”[83] That joint judgment also said:[84]
  23. Doyle also concerned “impropriety” on the part of a company director. The joint judgment of Gleeson CJ, Gummow, Kirby, Hayne & Callinan JJ, followed and applied the earlier High Court decisions in Byrnes and Angas Law Services. In Doyle, the Court also repeated the principle that while “... the presence of intention or purpose may be relevant in assessing impropriety, it is not an ingredient in the requirement of improper use of position.”[85]
  24. As a general principle, in Carmody v Mackellar,[86] Merkel J observed that the “... meaning of “improper” must be determined from the context in which it appears.”[87]
  25. “Otherwise act in an improper manner” was considered at some length by the AIRC in Addison v Public Transport Corporation of Victoria.[88] Polites SDP said, at [p.317]
  26. In the much later decision of McLoughlin to which I have already referred, and after the implementation of the Work Choices amendments, the AIRC commented, at [70], on Addison as follows:
  27. In Jim Pearson Transport v Transport Workers’ Union of Australia, the AIRC dealt with an application in relation to right of entry for union officials under the Occupational Health and Safety Act 2000 (NSW) (“the OHS Act NSW”).[89] The union wished to inspect the company’s premises and records for suspected breaches of the OHS Act NSW. The union gave written notice of its wishes in this regard.
  28. The AIRC recorded, at [5], that the notice from the union “advised that the purpose of the inspection was to investigate suspected breaches of the OH & S Act, including but not limited to fatigue management, systems of remuneration, driving hours, and maintenance of plant and equipment.” (Emphasis added.) It clearly was little trouble for the Transport Workers’ Union to provide simple details about the suspected OHS breaches. If the TWU could take such a common-sense course in that case, it should have been no less arduous for the CFMEU to do the same in this case.
  29. In a very recent decision of the Federal Court, Moore J faced a not completely dissimilar fact situation to that which is before this Court. In John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union,[90] members of the respondent union sought to enter the site of the construction of Sydney’s desalination treatment plant at Kurnell. His Honour made findings of fact that the union first contacted the Group General Manager (Human Resources) of the applicant company with a view to arranging to go to the site to “check it out.” His Honour also found that the union was advised to contact the “People and Capabilities Manager,” a Ms Friedlander, at the site regarding protocols for entry, and that the union did so. She “requested details about the safety breach the second respondent had raised.”[91] It would appear that no objection was taken to such a straight-forward inquiry.
  30. In John Holland, the applicants submitted, among other things, that two officials of the respondent union had acted in an improper manner by entering the premises when permission to enter was denied, and remaining on the premises when requested to leave. This was contrary to s.756 of the WR Act. His Honour said, at [52]: “... s.756 operates on a person who has a right of entry under an OHS law and, in that sense, identifies a person with a particular status on whom Division 5 operates. In my opinion it necessarily follows that the prohibition on, amongst other things, acting in an improper manner, concerns only a person with that status.” In the result, Moore J did not have to decide whether there had been a contravention of ss.756, 758 or 767, or what constituted acting in “an improper manner,” because his Honour held, at [54], that “the second and third respondents could not have contravened and did not contravene ss.758 and 767 because neither had a right to enter premises under an OHS law.”
  31. Although Moore J did not determine the case before him because of the construction and interpretation of s.767, what is at least instructive about this very recent case of John Holland is the common-sense way in which the union and the company, at least at the outset, went about the business of making inquiries and arranging entry to the site. A simple telephone call (or calls) to inquire about access and protocols regarding entry, and the straight-forward request for details, should have been, one would have thought, an uncomplicated and reasonable approach in all but the most extreme and urgent cases. Had the union officials from the CFMEU in this case followed the course taken by their colleagues from the same union in the John Holland case, all that has transpired – including this litigation - would likely have been avoided.
  32. Counsel for the respondents referred the Court to the Full Bench decision of the AIRC in Appeal by Australian Municipal, Administrative, Clerical and Services Union.[92] That case concerned right of entry under ss.747 and 749. The latter section provides specifically for “particulars of the suspected breach” to be provided.
  33. Mr McCarthy argued that, notwithstanding there being no statutory requirement to provide particulars under s.767 (and I acknowledge that his submission was in the context of resisting the application under s.767(3)), the AIRC’s observation in Clerical Services Union, at [29], applied to the current case. There, the Full Bench said: “... we consider that there is sufficient similarity in the statutory search warrant principles as applied in George v Rockett to enable us to apply those principles to the right of entry provisions.”[93] Counsel argued that this basic element of procedural fairness should apply to the operation of the sections under consideration here. I agree.
  34. Conclusion re s.767(1): I do not, in any way, suggest that there was any illegality or criminality in the conduct of the union officials. Rather more simply, in my view, not to provide the most basic details of the alleged OHS breach to any of the respondents, comes within the proscription in s.767(1). On that early June morning in 2007, the union officials never provided the simple, common-sense detail that could have, and should have, obviated all that has transpired since, including these protracted, and doubtless expensive, proceedings. Respectfully, it seems to me that the actions of the union officials were, in large measure, a triumph of well-intentioned but mis-guided bluster, aided by a certain level of ignorance, over common-sense.
  35. In my view, the failure to provide relevant details of the alleged `safety breach’ was “unsuitable or inappropriate ... for the purpose or occasion”, and was “not in accordance with the nature of the case or the purpose in view [of the legislation].” It was also “inappropriate [and] ill-adapted” to the circumstances with which the union officials were confronted, but which they had caused. In my view, the union officials’ conduct in seeking to enter the National Convention Centre site on the morning of 7th June 2007 but not provide any details to any of the respondents other than to say that there had been `an OHS [or safety] breach’, transgressed the simple, albeit broad proscription in s.767(1) not to act “in an improper manner.” Had those basic details been provided, there is a reasonable – albeit perhaps only hopeful -chance that this litigation would have been unnecessary.

VII The Construction & Application of s.767(3)

  1. In large measure, because of my conclusion in relation to the conduct of the union officials and consequential findings in relation to s.767(1), it might be considered unnecessary to consider s.767(3). However, because it was a primary focus of the proceedings, it is important that I address the arguments of the parties and the conduct of the respondents in particular in the light of that section, and in the light of the operation of the OHS Act. In addition to the “particulars” or provision of “details” issue (already considered at length),[94] principally there are two matters to consider here: (a) whether there was a “reasonable suspicion” held by the union officials of there having been a contravention of the relevant OHS laws, and (b) subject to any finding as to (a), whether there could have been any contravention of the OHS laws that would entitle entry to the site.
  2. Again for ease of reference, I note that s.767(3) provides: “A person must not refuse or unduly delay entry to premises by a permit holder who is entitled to enter the premises: (a) under section 747, subsection 748(8) or (10) or section 760; or (b) under an OHS law in accordance with section 756.”
  3. As previously indicated, the relevant OHS law is the Occupational Health and Safety Act 1989 (ACT) (“the OHS Act”). I have set out earlier in these reasons the provisions in question. Of particular significance for immediate purposes are ss.77 and 78.
  4. Perhaps also relevant, but not addressed by any of the parties, is s.80 of the OHS Act. That section details the powers available to an “authorised representative”, who enters a site under s.77, to investigate a suspected breach of the OHS Act. Among other things, those powers include inspecting “work, materials, plant or systems at the premises”, “require the production ... of documents relating to occupational health and safety at the premises”, and perhaps most significantly, s.80(2)(f) provides: “require the occupier, an employee or anyone else working at the premises, to give the representative any assistance reasonably needed to exercise a function under this part at the premises.”
  5. Measured against the powers conferred on the authorised representatives in this case, namely the union officials (Mr O’Mara and Mr Kivalu), there was no breach. The union officials were put in touch with Mr Riley, who was the only person (although not on site at the time) who could “give the representative any assistance reasonably needed to exercise a function under this part at the premises.”
  6. As submitted by the Applicant, the breach by one or more of the respondents in this case is established by one or more of them refusing or unduly delaying the union officials’ entry to the National Convention Centre premises on 7th June 2007. The union officials were permit holders, who (it is contended) were authorised to enter the premises under a relevant OHS law, and thereby, were authorised under s.756 of the WR Act to enter the site.
  7. The Applicant submits that the right of entry conferred by s.767 of the WR Act provides for the permit holder immediately to enter the site, provided that person `has a suspicion on reasonable grounds that a breach of OHS law has occurred.’[95]
  8. Leaving to one side for the moment the matters already canvassed regarding the failure to provide basic details of the alleged safety breach (which should also be taken to apply equally to s.767(3) as to s.767(1)), it is clear that a central element of the entitlement to enter the site is whether there was a `suspicion held on reasonable grounds’ by the union officials that there had been a safety breach.
  9. Reasonable Suspicion: It will be recalled that the basis of the “suspicion” held by Mr O’Mara and Mr Kivalu was their conversation with Mr Thornton and his short statement about the brief scuffle with Mr Riley. At the time of that discussion between the officials and Mr Thornton, as I understand it, there was and never has been any contention that this was anything more than a one-off incident. These is also to say that there has been no history, or even a suggestion, of regular, sporadic, or even a single, further complaint about fighting on the site either before or since the slight altercation that sparked these proceedings.
  10. Rightly, it was contended that George v Rockett[96] should determine whether there were grounds upon which `a reasonable suspicion’ could be formed, as required under the ACT OHS legislation (s.77).[97] That case has been the subject of further comment in more recent cases in the High Court, such as Stuart v Kirkland-Veenstra, Gypsy Motorcycle Club Incorporated v The Commissioner of Police, State of New South Wales v Corbett,[98] and in superior appellate Courts, such as Optiver Australia Pty Ltd v Tibra Trading Pty Ltd, and International Finance Trust Company Ltd v New South Wales Crime Commission.[99]
  11. In Stuart v Kirkland-Veenstra at [56], French CJ commented on the instruction in George v Rockett as follows:
  12. Somewhat less qualified, in the combined judgment of Gummow, Hayne, Heydon and Kiefel JJ in Gypsy Jokers Motorcycle Club Incorporated, at [28], their Honours said:[100]
  13. Also in George v Rockett (at pp.115-116), the High Court quoted Kitto J’s comments in Queensland Bacon Pty Ltd v Rees,[101] where his Honour said that a “... suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a `slight opinion, but without sufficient evidence’, as Chambers Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.”
  14. In the light of the above instruction from the High Court, now given on many occasions and over a significant period of time, in my view, the questions to be answered in this case are twofold, for the purposes of s.77 of the OHS Act, and in turn ss.756 and 767(3) of the WR Act. They are: (a) whether the union officials had a genuine suspicion about a possible safety breach at the time following their discussion with Mr Thornton and leading up to the attendance at the site on 7th June, or whether they were simply intending, at the time, to look into and to confirm the existence of the facts as asserted by Mr Thornton; and (b) if the union officials genuinely held a suspicion, was it of a kind that a reasonable person in the circumstances would have held?[102]
  15. Given what I have already said in relation to s.767(1), formally I do not need to make any determination on this further question regarding `reasonable suspicion.’ However, were I pressed to do so, in my view, a reasonable person would be liable to regard Mr O’Mara and Mr Kivalu as having embarked upon more of a “fact-finding mission”, to `look into the possibility and circumstances of the existence’ of the facts as alleged by Mr Thornton. That being the case, in my view, a reasonable person, in the circumstances of this case, would not have formed or had a reasonable suspicion of the kind required by the OHS Act. In the circumstances of this case, such a person would more likely than not consider the actions of Mr O’Mara and Mr Kivalu as doing little more than “checking out” the site and speaking with Mr Riley to get his version of events. Or, as Counsel for the Respondents put it in his written submissions (par.74): “Even if one were to characterise a “fight” as an OH & S issue in broad-brush terms, there is nothing in the evidence of Mr O’Mara or Mr Kivalu to identify what it is that either suspected Iqon had not done contrary to s.39. All they knew was Mr Thornton’s account of an altercation with Mr Riley. There was nothing in Mr Thornton’s account of events to ground a reasonable suspicion of any reasonably practical step that Iqon should have taken, but did not, to ensure that the workplace was safe and without risk to health.” (Emphasis added.) Although the primary thrust of this submission was in the context of whether the conditions prescribed in ss.39 and 77 of the OHS Act had been fulfilled, it obviously also goes to whether there were grounds for establishing that a reasonable suspicion was held at the time by the union officials. I agree with the submission that there were not.[103]
  16. Breach of OHS Law: Mr McCarthy’s other submission, if I may say, was adroit in relation to the construction of s.77. The construction and application of that section to the facts of this case led him to submit that there was no power under s.77 of the OHS Act, and therefore there was no right of entry for the purposes of s.756 of the WR Act. I agree with this submission. The steps in this submission are as follows.[104]
  17. The right to enter premises for OHS purposes was not `at large.’ Section 77(2) of the OHS Act permitted entry “to investigate the contravention.” The Statement of Claim (pars.7 & 8) contends that Mr O’Mara and Mr Kivalu held a suspicion on reasonable grounds that a breach of ss.37 and or 39 of the OHS Act had taken place. Those sections provide, respectively, that `an employer shall take all reasonably practicable steps to protect the health, safety and welfare at work of the employer’s employees’,[105] and that `a person who has, to any extent, control of a workplace ... shall take all reasonably practicable steps to ensure that it is safe and without risk to health.’[106]
  18. Rightly, Mr McCarthy distinguished between the duties imposed by s.37 and s.39.
  19. His next step was to highlight the definition of “employee” in s.7 of the OHS Act, to which I have previously referred. That section refers specifically to “an employee who works at the workplace in the capacity of an employee of the employer.” (Emphasis added.) Mr McCarthy contended, and it cannot be disputed, that Mr Thornton was not an employee of Iqon. He was a sub-contractor employed by TOK Carpentry. This relationship is set out in Mr O’Mara’s affidavit, par.3. Clearly, the union officials knew of Mr Thornton’s employment relationship with TOK Carpentry at the time they went to the site on 7th June. Accordingly, there could not have been any breach of s.37 of the OHS Act because he was not an employee of Iqon.
  20. In relation to s.39 and there being a lack of power to enter the site, the argument, which I also accept, runs as follows. As submitted by Mr McCarthy (Respondents’ Closing Submissions, par.68), that section “is directed at ensuring that “a workplace”, access to and from it, and plant or substances at it are “safe and without risk to health”.”
  21. Next, the right to enter for a suspected breach of s.39 arises where there is something to ground a reasonable suspicion of a failure to take all reasonably practicable steps to ensure that “a workplace”, access to and from it, and plant or substances at it are “safe and without risk to health.”
  22. “Practicable” is not defined in the Act. Mr McCarthy offered the definition from the Macquarie Dictionary (revised Third Edition) as “capable of being put into practice, done, or effected, especially with the available means or with reasonable prudence; feasible.”[107] The submission then continues, stating that before the power under s.77 can be exercised in relation to a suspected breach of s.39, the union officials, at some stage, should have asked the question as to `what reasonably practicable step’ did they suspect, on reasonable grounds, that Iqon had not taken so as to fall foul of s.77? The submission then contended that `the answer to that question determined whether the power to enter the site existed and the purpose of the investigation.’
  23. It is true that there was no suggestion in the case that there was `any reasonably practicable step’ that Iqon should have taken but did not do so to ensure that the workplace was safe and without risk to health. I accept the further submission that neither Mr O’Mara nor Mr Kivalu identified any reasonably practicable step which they reasonably suspected Iqon or any of its officers as not having undertaken, and that they wished to investigate. On this basis, there was no right of entry under s.77 because there were no reasonable grounds of suspicion of a breach under s.39. Accordingly, there was no breach under an OHS law, and therefore there was no right of entry under s.756 of the WR Act. In turn, there cannot be any breach of s.756(3) of the WR Act.
  24. For the sake of completeness only, it remains to make some observations in relation to penalty. Because I have determined that there has been no breach of s.767(3), my comments must, and should, be brief.

VIII. Penalty

  1. In NW Frozen foods Pty Ltd v Australian Competition and Consumer Commission,[108] the Full Court of the Federal Court (Burchett and Kiefel JJ; Carr J agreeing) said:[109]
  2. And in a line of cases beginning with Kelly v Kitzpatrick and including especially Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith,[110] the Federal Court has outlined a range of matters that should be taken into account in considering matters relating to penalty. Having regard to the principles set out in these cases, and in the light of the facts and the gravamen of the issues involved in these proceedings, in the event that I was required to consider matters relating to penalty it is more likely than not that little or no penalty would have been imposed. The cost of the proceedings alone, together with the educational session provided by the ABCC shortly after the incident that sparked these proceedings, would more likely have been regarded as penalty enough. However, having regard to my resolution of the matter, such things are, of course, unnecessary to determine.

IX. Conclusion

  1. Speaking on the occasion of his retirement from the New South Wales Court of Appeal, the late eminent jurist, Santow JA said: “... a legal answer that offended common sense or basic fairness was usually wrong, however cleverly contrived.” His Honour’s observation echoes Gleeson CJ’s comment in Lam cited at the beginning of these reasons regarding `the concern of the law to avoid practical injustice.’ As noted on numerous occasions, the provision of basic details would have avoided the practical injustice highlighted by the facts of this case, and would have facilitated the inquiries sought by Mr O’Mara and Mr Kivalu.
  2. For the above reasons, the application must be dismissed. The Applicant should pay the Respondents’ costs, either as agreed or taxed.

I certify that the preceding one-hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of Neville FM


Associate: R. Davidson


Date: 10 July 2009

[1] I am indebted to Counsel for both parties, and to those instructing them, for their assistance in providing supplementary submissions in answer to further questions that arose after the trial concluded. The Court had the benefit of detailed written submissions from both Counsel: on the part of the applicant in submissions filed on 13th October 2008, 10th November 2008, 23rd March 2009, 6th & 29th April 2009, and 25th May 2009; on behalf of the respondents, in submissions filed on 28th October 2008, 23rd March, 5th April, and 12th May 2009.
[2] [2003] HCA 6; (2003) 214 CLR 1 at p.14 [37].
[3] Cf. Harman LJ’s comment in Ridge v Baldwin [1963] UKHL 2; [1963] 1 QB 539 that “... natural justice ... after all is only fair play in action.” The focus here, of course, is on `fair play in action.’
[4] Generally, see also the remarks of French CJ in his paper, ““In praise of breadth” – A reflection on the virtues of generalist lawyering,” to the University of Western Australia, Law Summer School 2009. In that paper, the Chief Justice said, at pp.15 & 16: “The author is ... an accredited workplace relations specialist. He wrote of the interaction between that field and such fields as trade practices, corporations law, intellectual property and migration law. ...[The author said]: “The benefit of considering the workplace relations area from different practice perspectives may lead to clearer instructions, more focussed research and the provision of effective advice to the public.”” Jackson, “More of a generalist, more of a specialist,” (2007) Legal Practice 58 at p.61. I cite his Honour’s remarks – self-explanatory as they are – concerning the importance of ensuring that “the workplace relations area” (as with other areas) is considered, where appropriate, from different practice perspectives, always having regard to the provisions of the Act in question and fundamental principles.
[5] See, for example, s.4(b).
[6] See s.736, and especially s.736(a), (b) & (c).
[7] I note in detail later in these reasons that this instruction, and this particular form of words, is taken from and consistently found in Fact Sheets issued by the Australian Building and Construction Commission, of which Mr Hogan, the Applicant in these proceedings, is an Inspector.
[8] Australian Building and Construction Commission v McLoughlin (2007) 165 IR 369 at [3], [14], [63], [86], [107] & [152]. In McLoughlin, the ABCC also argued that failure to exercise rights of entry under Part 15 `without due diligence, reasonable civility and avoidance of unnecessary obstruction’ constituted “abuse” under the Act. McLoughlin at [3] – emphasis added.
[9] Originally Mr Clark was removed as a party to the proceedings. Why this was so, and why and how he came to be re-joined as a party, is set out in my earlier judgment, Hogan v Riley & Ors [2008] FMCA 794 (5th June 2008).
[10] S.769(1) of the WR Act authorises an “eligible person” to bring civil remedy proceedings. S.769(4) defines an “eligible person” to include a “workplace inspector.” See also ss.73(1) and 73(4) of the Building and Construction Industry and Improvement Act 2005 (Cth) for comparable provisions.
[11] There was no dispute that the National Convention Centre was a site to which s.755 of the WR Act applied.
[12] A helpful overview of Part 15 of the WR Act is provided by Watson SDP in McLoughlin at [25] – [50]. Earlier in that judgment, Watson SPD observed appositely, at [23], in relation to Part 15 that the “legislative amendments have been subject to little consideration since their enactment [in 2006].”
[13] S.756(2) of the WR Act provides that subsection (1) “is a civil remedy provision.” S.757 deals with rights to inspect employment records after entering premises but upon certain specified notice (24 hours) having been given. Although it was briefly contended that the union officials in this case wanted to inspect certain records, no substantive issue in these proceedings turns on this section.
[14] Section 7 is also relevant. It provides: “A reference in this Act to an employee of an employer at a particular workplace is a reference to an employee who works at the workplace in the capacity of an employee of the employer.”
[15] Emphasis added, for reasons discussed later.
[16] Nothing turns on the essentially unchallenged evidence (in the statements and other, more formal evidence before the Court) regarding the force - and degree of colourful language - with which the CFMEU officials declared their right to unimpeded entry to the site, and the equally forceful - also aided by florid language - resistance (on `instructions of management’) to the CFMEU officials by Mr Clark.
[17] Transcript (24th September 2008) p.33.
[18] See his affidavit, filed 7th May 2008, pars.7-27.
[19] See Transcript (24th September 2008) pp.78 & 79.
[20] Mr Thornton’s evidence is located at Transcript (24th September 2008) pp.34-38. Mr Riley’s oral evidence is found at Transcript (25th September 2008) pp.109-115. Their affidavits are dated, respectively, 8th September 2008 and 7th May 2008. A copy of Mr Thornton’s hand-written note of the original incident with Mr Riley and him being ordered off the site, dated 30th May 2007, is annexure “E” to Mr Kivalu’s affidavit, filed 18th April 2008.
[21] Transcript (24th November 2008) p.35.
[22] Mr O’Mara’s affidavit, filed 18th April 2008, par.16. Notwithstanding his evidence of arriving at the site at approximately 9am, annexure “JO-02” to his affidavit is a copy of his diary for 7th June 2007. The first entry is listed at 8am and reads “Icon for safety breach.”
[23] Affidavit of Mr Kivalu, filed 18th April 2008, par.14.
[24] Affidavit of Mr Riley, filed 7th May 2008, pars.18 & 19.
[25] In the course of an exchange with Counsel and the Bench, in the context of whether Mr Clark (the Second Respondent) would be called to give evidence, Mr McCarthy (for the Respondents) stated that there was no dispute that Mr Clark said to Mr O’Mara and Mr Kivalu that they were not coming on to the site. Nor was there dispute that one or both union officials had said to Mr Clark that there had been a “safety breach”, but that the officials would still not be permitted to enter the site. See Transcript (25th September 2008) p.129.
[26] See Mr O’Mara’s affidavit, filed 18th April 2008, par.12, where he deposes to having a “reasonable suspicion” about the safety of the workplace.
[27] Mr O’Mara also gave oral evidence that he went to the site to check on company records, policies and procedures and the like in relation to `the incident’ involving Mr Thornton. See Transcript (25th September 2008) p.88. In this regard the evidence is essentially only Mr O’Mara’s assertion. He and Mr Kivalu do not claim, nor is it supported by any other material, that they pursued or otherwise pressed this line of inquiry. Nor were these claims about intending to inspect company records made in his affidavit.
[28] (1990) 170 CLR 104.
[29] See Mr O’Mara’s affidavit, filed 18th April 2008, par.7, where he stated: “I am the holder of a permit to enter and inspect premises under the Workplace Relations Act, 1996. My permit is Permit No.RE 2007/2200.” He annexed a copy of his permit to his affidavit. He also deposed to being an authorised representative under the OHS Act (ACT); a copy of his authorisation under that Act was also annexed to his affidavit. In his affidavit, also filed on 18th April 2008, Mr Kivalu deposed to similar effect. He, too, annexed a copy of his permit [No.RE 2006/2971] to his affidavit as well as his authorisation under the OHS Act (ACT) legislation. Mr O’Mara deposed to being the President of the ACT Branch of the CFMEU since 2006. He is employed as a union organiser, as is Mr Kivalu.
[30] S.756(1) WR Act.
[31] Transcript (25th September 2008) p.92. I note only that in relation to basic, central issues Mr O’Mara seemed to be following a closely crafted script. Put another way, on such matters there was little, if any, natural spontaneity in his evidence, especially when compared to that of Mr Byatt. I do not say this to be unduly critical, but simply to observe that he gave his evidence in such a way that his answers, while honestly held, were in a somewhat stylised, truncated if not almost artificial manner and that they conformed very closely to the legislative requirements that were in play in these proceedings. I did not take his affidavit and oral evidence to be examples of his usual, everyday manner of speaking and general idiom. The same comments apply to Mr Kivalu’s evidence. Thus here: Mr O’Mara gave his more natural answer about wanting simply and essentially to see Mr Riley, then corrected it so that his answer fitted more directly with the legislative requirements.
[32] Transcript (25th September 2008) p.93. Just before this answer, Mr O’Mara said that he wanted to see the project manager because that person was someone “who was in control of the workplace....” Ibid.
[33] The website is www.abcc.gov.au.
[34] PPE stands for “Personal Protective Equipment”, otherwise known as a “hard hat.” This explanation is provided in Iqon’s “Incident Report”, which is attached to Exhibit “L”.
[35] (2007) 165 IR 369.
[36] (2007) 165 IR 369 at p.401 [131].
[37] See Transcript (25th September 2008) pp.122-123.
[38] (2007) 165 IR at p.406 [150].
[39] (2007) 165 IR at p.407 [152].
[40] In O’Loughlin, the AIRC properly distinguished between matters or action which constituted “abuse” under the WR Act and those which constituted `acting in an improper manner.’
[41] Mr McCarthy properly conceded in his written submissions of 28th October 2008 that there is no statutory requirement to provide particulars. See Respondent’s Closing Submissions, filed 28th October 2008, pars.77ff. under the heading “Lack of particulars.” He argued, however, that there was a general requirement to provide basic particulars.
[42] In Mr Byatt’s oral evidence, he advised that 90% of Iqon’s work was for either the Commonwealth or ACT Government. See Transcript (25th September 2008) p.126. Limited as his comments were, this evidence was unchallenged, although it was the subject of brief comment in submissions.
[43] See Mr Byatt’s affidavit, filed 7th May 2008, par.26 for the repudiation of the O’Mara claim in this regard.
[44] See, for example, Transcript (25th September 2008) p.94.
[45] Mr Kivalu’s affidavit, filed 18th April 2008, par.20. Without being utterly pedantic, I consider it implausible, as the statement suggests, that Mr Kivalu either carried around with him or otherwise regularly consulted the WR Act.
[46] Generally, see the rule in Browne v Dunn (1893) 6 R 67, and the detailed observations on it by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at p.16.
[47] (1974) 9 SASR 367 at pp.373-74.
[48] (1999) FCR 134 at p.148 [51]. Generally, see also Cross on Evidence (J.D. Heydon) (Seventh Australian Edition) (Sydney: LexisNexis Butterworths, 2004) pars.17435 – 17460 and S. Odgers, Uniform Evidence Law, (Eighth Edition) (Sydney: Lawbook Co & Thomson Reuters, 2009) pp.147-150.
[49] (1998) 194 CLR 355.
[50] (1998) 194 CLR at p.384. Internal citations omitted.
[51] Statutory Interpretation (Third Edition) (London: Butterworths, 1997) pp.343-344. The Fifth Edition of the same work (London: Butterworths, 2008) pp.441-442 has not changed the text as cited by the High Court. Similar comments, as in Bennion’s work, are to be found in D. Pearce & R. Geddes, Statutory Interpretation in Australia (Sixth Edition) (Sydney: LexisNexis -Butterworths, 2006) pp.25-26. From the United States’ perspective, see W. Eskridge Jr, P. Frickey, E. Garrett, Legislation and Statutory Interpretation, (New York: Foundation Press, 2000) Chapters 6, 7 & 9. Justice Gummow praises this text in his address, “Statutes: The Sir Maurice Byers annual address,” (2005) 26 Australian Bar Review 121 at p.122. See also Justice K. Mason, “The intent of legislators: How judges discern it and what they do if they find it,” (2006) 27 Australian Bar Review 253.
[52] (1990) 169 CLR 214.
[53] (1990) 169 CLR at p.235. See also Finn J’s comments in Comcare v Thompson [2000] FCA 790; (2000) 175 ALR 163 at p.164 [1], where his Honour cites detailed comments from Sutherland’s, Statutes and Statutory Construction (5th Edition) Volume 2B, which refers to “the equity of the statute”, by which is meant the “spirit” or “principle” of the statute.
[54] (6th Edition) (Sydney: LexisNexis Butterworths, 2006) at p.31 [2.9].
[55] S.15AB of the Acts Interpretation Act 1901 (Cth) is also relevant to these proceedings in so far as it relates to the Court’s use of Explanatory Memoranda and other extrinsic materials set out in that section.
[56] See, for example, s.3(e) & (h).
[57] Explanatory Memorandum, Workplace Relations Amendment (Work Choices) Bill 2005, p.34. Cf. Heydon J’s terse but appropriate [dissenting] comments on another Explanatory Memorandum in Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Limited [2009] HCA 19 (30 April 2009), at [103]: “... what is said in the Explanatory Memorandum is far too compressed and brief to assist; indeed, its terms do not suggest that its author had in mind the present problem.” His Honour’s comments are not inapt here.
[58] Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Limited [2009] HCA 19 (30 April 2009), at [104]. The Second Reading Speech begins at Commonwealth Parliamentary Debates (House of Representatives: Hansard) (2nd November 2005) p.16.
[59] As previously noted, one of the objects of the legislation more generally, s. 3(h) of the WR Act, refers to “supporting harmonious and productive workplace relations by providing flexible mechanisms for the voluntary settlement of disputes.” Also as previously noted, for an ABCC Inspector to commence proceedings during the Christmas vacation period, some six months or thereabouts after the incident in question, and after having conducted apparently successful and certainly quite harmonious an educative session for, and provided educational material to, the Respondents seems, on any measure and in the light of the facts, hardly in keeping with the object of s.3(h).
[60] Explanatory Memorandum, Workplace Relations Amendment (Work Choices) Bill 2005, p.363.
[61] Ibid – emphasis added.
[62] Commonwealth Parliamentary Debates (House of Representatives: Hansard) (2nd November 2005) p.18.
[63] Commonwealth Parliamentary Debates (House of Representatives: Hansard) (2nd November 2005) p.22.
[64] Explanatory Memorandum, Workplace Relations Amendment (Work Choices) Bill 2005, p.26.
[65] (1997) 187 CLR 384 at p.408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
[66] (1997) 191 CLR 85 at pp.99 (Toohey, Gaudron & Gummow JJ) & 112-113 (McHugh J)
[67] Explanatory Memorandum, Workplace Relations Amendment (Work Choices) Bill 2005, p.34.
[68] (2007) 231 CLR 396.
[69] As an early commentary on the Work Choices legislation observed: “The prior offence of intentionally hindering or obstructing any employer or employee has ... been broadened to prohibit hindering or obstructing any person. In addition, there is now a second limb requiring that the permit holder “must not ... otherwise act in an improper manner”. This wider prohibition is a neat complement to the broad Commission powers in relation to abuse of rights of entry.” J. Riley & K. Peterson, Work Choices: A Guide to the 2005 Changes, (Sydney: Thomson, 2006) p.758. Emphasis added. Cf. the Federal Court (Merkel J) judgment in Pine v Doyle (2005) 143 IR 98, which considered the construction and application of ss.285C and 285E of the previous legislation in relation to “right of entry” and whether certain conduct constituted `hindering or obstructing.’ Merkel J held, at [7], [15] and [18], that “whether a person is obstructed or hindered is a question of fact in a particular case”; and that whether a person is entering premises pursuant to the power of entry is a “matter of fact, rather than ... a matter of law.”
[70] (2005) 226 CLR 507.
[71] Macquarie Dictionary (Fourth Edition) (2005) p.717. Using the same definitions from the Macquarie Dictionary, Words and Phrases Legally Defined distinguishes between an improper use of a thing, improper conduct, and improper tools. See Words and Phrases Legally Defined (Fourth Edition) (London & Sydney: LexisNexis Butterworths, 2007) Vol.1, p.1143. Black’s Law Dictionary (Seventh Edition, 1999) p.761, defines “improper” as (i) incorrect; unsuitable or irregular; (ii) fraudulent or otherwise wrongful.”
[72] Oxford English Dictionary (Second Edition) (Reprint, 1991) Volume VII, p.747. The further definitions offered, such as “[n]ot in accordance with good manners, modesty, or decorum; unbecoming, unseemly...” are not apposite, although, as noted earlier, the ABCC Inspector in McLoughlin, at [3], regarded the union officials’ uncivil conduct in that case as warranting censure.
[73] (1994) 53 FCR 429.
[74] O’Connell v Palmer [1994] FCA 1511; (1994) 53 FCR 429 at p.434.
[75] Bercove v Hermes [1983] FCA 163; (1983) 67 FLR 186 at p.195.
[76] Bercove v Hermes (No.3) (1983) 74 FLR at pp.324-325.
[77] (1984) 53 ALR 593.
[78] (1995) 125 FLR 221.
[79] (1992) 173 CLR 626.
[80] Willers v R (1995) 125 FLR at p.225. His Honour also considered that an improper purpose may include one activated by malice. It is unnecessary to consider Rowland J’s discussion in Willers (which begins especially at p.232 ff.) regarding whether “improper purpose” is one that requires there to be gain or benefit or to cause detriment. Such considerations are irrelevant to the current proceedings.
[81] Respectively, (1992) 173 CLR 626; (1995) 183 CLR 501; (2005) 227 CLR 18; (2008) 244 ALR 276.
[82] Byrnes [1995] HCA 1; (1995) 183 CLR 501 at p.514; Chew (1992) 173 CLR 626 at pp.634 & 636.
[83] So too did Gummow & Hayne JJ in Angas Law Services, at 226 CLR [54], where their Honours considered “impropriety” by evaluating relevant authorities in relation to what was “improper.”
[84] Byrnes [1995] HCA 1; (1995) 183 CLR 501 at p.514-515.
[85] Doyle [2005] HCA 78; (2005) 227 CLR 18 at p.29 [41]. In Ridehalgh v Horsefield [1994] 2 All ER 848, the English Court of Appeal considered the interpretation and application of provisions of the Supreme Court Act 1981 (UK) in relation to the conduct of a solicitor as to whether that conduct was “improper, unreasonable or negligent.” Sir Thomas Bingham MR, for the Court said, at p.862: “We were invited to give the three adjectives (improper, unreasonable and negligent) specific, self-contained meanings, so as to avoid overlap between the three. We do not read these very familiar expressions in that way. Conduct which is unreasonable may also be improper, and conduct which is negligent will very frequently be (if it is not by definition) unreasonable. We do not think any sharp differentiation between these expressions is useful or necessary or intended.”
[86] (1996) 68 FCR 265.
[87] (1996) 68 FCR 265 at p.286. In the same place, his Honour referred to and relied upon the Full Court decision in O’Connell v Palmer, which I have already noted.
[88] (1998) 86 IR 308.
[89] Jim Pearson Transport v Transport Workers’ Union of Australia [2007] AIRC 559.
[90] [2009] FCA 645.
[91] [2009] FCA 645 at [8].
[92] (2008) 172 IR 1. (“Clerical Services Union.”)
[93] Earlier the AIRC had said, at [23]: “In our view, the particulars provided under s.749(2)(c) should at least disclose the nature of the breach and give the constitutive facts which are said to give rise to it so that the employer understands the scope of the investigation. A recitation in the Entry Notice of the facts which reasonably ground the suspicion might even avert any disputation over the right of entry.” Respectfully, I agree with the Commission’s comments. They reflect well the objects of the WR Act.
[94] One might also argue that the OHS Act contemplates that particulars of any suspected breach of OHS laws will be provided in most cases – of which the current matter is a prime example – among other things because s.78 of that Act provides that no particulars are necessary to be provided `where to do so would defeat the purposes of the investigation.’ This was no such case. And, as previously observed, failing to provide details actually thwarted the inquiry of the union officials.
[95] See Submissions by Applicant (faxed on 13th October 2008) “Elements of the Contravention,” par.8.
[96] (1990) 170 CLR 104.
[97] Although set out earlier in these reasons, for ease of reference, s.77(1) of the Occupational Health and Safety Act 1989 (ACT) provides: “... if an authorised representative of a registered organisation suspects on reasonable grounds that (a) a contravention of this Act may have happened, may be happening or is likely to happen; and (b) the premises are a workplace where members of the organisation (or people who are eligible to be members of the organisation) work,” then, under s.77(2) the “authorised representative may enter the premises to investigate the contravention.” Emphasis added.
[98] Respectively[2009] HCA 15; , (2009) 254 ALR 432 at [56] (French CJ)[2008] HCA 4; , (2008) 234 CLR 532 at [28] (Gummow, Hayne, Heydon, & Kiefel JJ)[2007] HCA 32; , & (2007) 230 CLR 606 at [18] (Kirby J) & [104] – [105] (Callinan & Crennan JJ).
[99] Respectively[2008] FCAFC 133; , (2008) 169 FCR 435 at [47] (FCAFC) & [2008] NSWCA 291; (2009) 251 ALR 479 at [110 - 114] & [134] (NSWCA).
[100] The only reference to which their Honours referred in the passage cited was George v Rockett, 170 CLR at pp.112-113. In her submissions on behalf of the Applicant in these proceedings, Ms McDonald referred only to p.115 in George v Rockett and the High Court’s reference there to Lord Devlin’s discussion of what constituted “suspicion” in Hussein v Chong Fook Kam [1970] AC 942 at p.948.
[101] [1966] HCA 21; (1966) 115 CLR 266 at p.303.
[102] In George v Rockett, the High Court said: “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.” 170 CLR at p.112. The Court went on to cite the caution of Fox J in R v Tillett; Ex parte Newton (1969) 14 FLR 101 at p.106, where his Honour warned about acting on “the bald assertion of the informant.”
[103] See also the comments of the AIRC in Clerical Services Union where, at [24] – [30], the Full Bench discussed “Identification and Grounds for Reasonable Suspicion.” The Commission concluded that discussion, saying, at [30]: “Where the Entry Notice does not specify any breach or it is described ambiguously so that it is not possible to tell what the suspected breach is, it is inconceivable that the permit holder had reasonable grounds for suspecting a breach.”
[104] This detailed submission is set out in the Respondents’ Closing Submissions (filed 28th October 2008) pars.60 – 76.
[105] S.37 of the OHS Act: emphasis added.
[106] S.39 of the OHS Act.
[107] The Macquarie Dictionary (Fourth Edition) (2005) defines “practicable” as follows: “capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible.”
[108] (1996) 71 FCR 285.
[109] (1996) 71 FCR at p.295.
[110] [2007] FCA 1080; (2007) 166 IR 14 and [2008] FCAFC 8; (2008) 165 FCR 560 respectively. Most recently, see also Standen v Feehan (No 2) [2008] FCA 1574; (2008) 177 IR 276; Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426; (2008) 177 IR 61; Construction, Forestry, Mining and Energy Union v Hadgkiss [2009] FCAFC 17; (2009) 174 FCR 237.

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