Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0114

AURORA CONSTRUCTION MATERIALS PTY LTD and	First Applicant
EPPING TRANSPORT PTY LTD	Second Applicant
V
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	MAXWELL P, TATE and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 April 2018
DATE OF JUDGMENT:	29 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 165
JUDGMENT APPEALED FROM:	[2017] VSC 573 (Ginnane J)

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OCCUPATIONAL HEALTH AND SAFETY – Investigations – Statutory notices – Validity – Notices requiring giving of information and production of documents – Notices issued for purpose of investigating suspected contravention – Whether notices adequately stated nature of suspected contravention – Whether recipients able to assess validity of notices – Function of notices – State of investigators’ knowledge – Notices valid – Leave to appeal granted – Appeal dismissed – Occupational Health and Safety Act 2004 ss 9, 100, 104, 111, 131, 132.

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APPEARANCES:	Counsel	Solicitors
Applicants	Mr A Young QC	Sparke Helmore Lawyers
with Mr R O’Neill
Respondent	Mr A Palmer with Mr D Chisholm	Solicitor for the Victorian WorkCover Authority

MAXWELL P:

Introduction

In December 2011, a concrete truck failed to take a left-hand bend at the bottom of a hill and tipped over (‘the accident’). The driver of the truck was seriously injured. There was an initial investigation by the Victorian WorkCover Authority (‘the Authority’) but no action was taken. The time limit for prosecution[1] expired in December 2013.
[1]Occupational Health and Safety Act 2004 s 132 (‘OHSA’).

In July 2014, the respondent, an inspector with the Authority, commenced a further investigation. On behalf of the Authority, she issued a notice to each applicant under s 9(1) of the OHSA, which provides as follows:

9 Power to obtain information
(1) For the purpose of ascertaining whether this Act or the regulations have been complied with or of investigating a suspected contravention, the Authority may (by written notice) require a person to—
(a)give the Authority such information as the Authority requires; or
(b)produce a document in the custody or control of the person.

The relevant part of each notice was in these terms:

1.The Victorian WorkCover Authority (the Authority) is conducting an investigation arising from a workplace incident that occurred on Bulla Road, Bulla, Victoria on 5 December 2011. In that incident, [the driver] sustained serious injuries when the Kenworth (2008) T350 Concrete Agitator he was operating failed to brake (the incident).
Requirement to Give Information Pursuant to s 9(1)(a) of the Act:
2.For the purpose of investigating suspected contraventions of the Occupational Health and Safety Act 2004 (and associated regulations), the Authority requires [the recipient] to give the Authority the information described in Schedule 1 to this Notice by 4:30pm on 06/10/2014 (the Compliance Date).
Requirement to Produce Documents Pursuant to s 9(1)(b) of the Act:
3.For the purpose of investigating suspected contraventions of the Occupational Health and Safety Act 2004 (and associated regulations), the Authority requires [the recipient] to produce to the Authority the documents which are in [the recipient’s] custody or control and which are described in Schedule 2 to this Notice by 4:30 pm on the Compliance Date.

The applicants failed to comply with the notices, and were successfully prosecuted by the Authority in the Magistrates’ Court. Appealing to the Supreme Court on a question of law, they contended that the notices were invalid, alternatively that they had had a reasonable excuse for not complying. The trial judge rejected both parts of the challenge.[2]
[2]Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2017] VSC 573 (‘Reasons’).

The applicants now seek leave to appeal from that decision so far as it concerns the validity of the notices. Like Kaye JA, whose judgment I have had the advantage of reading in draft, I would grant leave to appeal but dismiss the appeal. My reasons are as follows.

Requirements for validity

The submission for the applicants in this Court was that, to be valid, each notice had to satisfy two requirements. The first was that the notice must disclose, on its face, that the notice was one which the Authority was empowered to give. The second was that the notice must give the recipient a

point of reference by which to judge whether the notice validly required the specified information to be furnished or the specified documents to be produced.[3]

[3]The applicants relied on the ‘exposition of the twofold purposes’ in Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581, 584 (‘Bannerman’). See [42] below.

According to the submission, the exercise of the coercive power under s 9(1) was subject to the satisfaction of a condition — in this case, the existence of a suspicion that the OHSA had been contravened. It followed, so it was said, that the notice had to show, on its face, that that condition had been satisfied.

That contention must be rejected, in my view. I am conscious that, as counsel for the respondent readily acknowledged, the Authority conceded at first instance that ‘there needs to be some way of telling whether or not the notice is valid’. That concession was maintained on the appeal. Nevertheless, as the matter was fully ventilated in argument, I consider it appropriate to explain my conclusion.

On ordinary principles, what is required for a notice under s 9(1) to be valid will depend on the proper construction of the provision. The language of s 9(1) draws a clear distinction between the substantive exercise by the Authority of the coercive power to require production, and the function of the notice as the instrument of communication. There is nothing in the statutory language, or the purpose of the provision, or the statutory context, to suggest that the notice itself must demonstrate the validity of the exercise of power.

Stripped to its essentials, s 9(1) empowers the Authority to ‘require a person’ to give information and/or produce documents. That coercive power is expressed to be exercisable for one or other of two purposes, namely, for the purpose of

·‘ascertaining whether this Act or the regulations have been complied with’; or
·‘investigating a suspected contravention’.

(As can be seen, the notices in the present case identified the second of these as the actuating purpose.)

Having thus identified the purposes for which the coercive power may be exercised, s 9(1) continues as follows:

the Authority may (by written notice) require a person to—
(a)give the Authority such information as the Authority requires; or

(b) produce a document in the custody or control of the person.[4]

[4]Emphasis added.

The notice is thus the means by which the Authority informs the recipient that it has decided to exercise the coercive power and specifies the information and/or documents required to be produced. The purpose of the notice, plainly enough, is to communicate the fact of the requirement being made, and its content.

Unlike other notice provisions in the OHSA such as s 111, s 9(1) contains no express requirements as to the content of a notice — beyond the specification of the information or documents required to be produced. Any other requirement as to content could only be justified — if at all — as a matter of necessary implication. Whether more is required for validity is, in my view, to be determined by the purpose which the notice serves.

That purpose should be the touchstone is illustrated by the decision of the High Court in Deputy Commissioner of Taxation v Woodhams.[5] In that case, the Court was considering the validity of a penalty notice given to a company director under s 222AOE of the Income Tax Assessment Act 1936 (Cth) (‘ITAA’). The giving of such a notice was part of a legislative scheme designed to impose penalties on the directors of companies which did not remit the group tax deducted from the salaries and wages of employees. The penalty was equal to the amount of the unremitted group tax. The Commissioner was not entitled to recover such a penalty without having first given the director a notice which relevantly set out ‘details of the unpaid amount of the liability [of the company]’.[6]
[5](2000) 199 CLR 370 (‘Woodhams’).
[6]Ibid 377 [16].

Upholding the validity of the notice in question, the High Court said:

It is the legislative purpose to be served by the giving of a s 222AOE notice that determines the nature and extent of the information necessary to satisfy details of the unpaid amount of the company’s liability under a remittance provision in respect of deductions. At this stage of the argument, the concern is with absence of information, rather than erroneous or misleading information. Absence of information will involve a failure to provide necessary details if, without such information, the notice will not fulfil the purpose for which it is required to be given.[7]

[7]Ibid 384 [33] (emphasis added).

Of particular relevance for present purposes is the argument advanced by the director that the relevant notice was misleading. It was said that the notice incorrectly represented the true tax position by ‘asserting in a peremptory and summary fashion the recipient’s liability to penalty’. As recorded in the judgment, the argument was that

[t]he existence of liability of the kind asserted depended upon a number of facts and circumstances which, at least in theory, might have been open to question or dispute.[8]

The Court rejected the argument:
This argument proceeds upon a false premise as to the purpose of the statutory notices. They were not intended to explain the legal basis of the asserted liability. They were notices before action; not pleadings. They were designed to serve a specific purpose, explained above.[9]

[8]Ibid 385 [41].

[9]Ibid.

As I have said, a notice under s 9(1) is the means by which the Authority communicates to the recipient its decision to exercise the coercive power which the subsection confers on it. It is no part of the statutory purpose of such a notice to assert, less still to verify, the existence of facts on which the exercise of the coercive power itself is founded.

The existence of such facts would be a matter for investigation, if at all, in a proceeding by way of judicial review challenging the decision to exercise the coercive power. In my opinion, there is no basis in principle for the proposition that a statutory notice of this kind must itself verify the enlivening of the power whose exercise leads to the issue of the notice.

As noted earlier, the applicants submitted that a notice under s 9(1) must disclose, on its face, that it was a notice which the Authority was empowered to give. This meant, as counsel for the applicants made clear, that the notice must establish that the Authority was validly exercising the coercive power. Since the exercise of that power was ‘conditioned’ on the existence of a suspicion as to contravention, the notice ‘associated with the exercise of the power’ must disclose, on its face, the satisfaction of that condition.

This was said to be necessary because such a notice is by its ‘very nature, coercive’ and because failure to comply is a criminal offence. According to the argument, the recipient is entitled to be satisfied that the notice is valid or, at least, is a ‘bona fide attempt to exercise the power conferred’. For this purpose, there must be disclosure on the face of the notice ‘of the fact or matter necessary to trigger the exercise of the power’.

Adapting the language from Woodhams, I consider that these submissions proceed ‘upon a false premise as to the purpose of the statutory notices’.[10] Notices under s 9(1) are ‘not intended to explain the legal basis’ of the decision by the Authority to exercise the coercive power. Instead, as suggested earlier, their purpose is to communicate, in a clear and non-misleading fashion, what is required to be produced.
[10]Ibid.

If the applicants’ contention were correct, difficult questions would arise as to how much detail was required to be included in the notice in order to demonstrate that the exercise of power under s 9(1) was valid. This difficulty was highlighted by the significant change in the applicants’ position which emerged in the course of oral argument in this Court.

As described by Kaye JA,[11] the written case for the applicants contended that the notices should have identified not only the specific contravention which was suspected but each act or omission which constituted the contravention. Reliance was placed for this purpose on the majority judgment in Baiada Poultry v Victorian WorkCover Authority.[12] According to the written case:

The core element of an offence under these provisions is a ‘measure’ which could have been taken to eliminate or reduce a risk to health or safety. That is the ‘act or omission’ which constitutes the contravention of such a provision.

[11]See [69] below.

[12](2015) 257 IR 204, 219 [48]–[50] (‘Baiada’).

The written case repeated an example given to the judge below, of how it was said the ‘requisite information’ could have been set out in the notice:

The VWA is investigating X company for suspected contraventions of s 21(1) and (2)(a) for failing to provide or maintain plant and s 21(1) and (2)(b) for failing to make arrangements for ensuring so far as reasonably practicable, safety and the absence of risks to [health] in connection with the use, handling, storage or transport of substances in that it failed to properly maintain the brakes of the relevant truck.[13]

[13]Reasons [39].

In oral argument, however, senior counsel for the applicants (who did not prepare the written case) abandoned these contentions. He accepted that Baiada was concerned with the quite different question of the particularisation of a charge under the OHSA. Counsel further accepted that a notice under s 9(1) could be validly issued at a time when the Authority’s state of suspicion about possible contraventions was at a quite general level.

The authorities

As Kaye JA notes,[14] the applicants relied — both before the judge and in this Court — on a series of authorities concerning the validity of notices issued under the former s 155 of the Trade Practices Act 1974 (Cth) (‘TPA’). In turn, those decisions drew on the High Court decision in Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd,[15] which concerned the validity of a notice given under s 264(1)(b) of the ITAA.
[14]See [67] below.
[15](1979) 143 CLR 499 (‘ANZ’).

As the trial judge correctly pointed out,[16] the language of those provisions was materially different from that of s 9(1). Thus s 264(1)(b) of the ITAA authorised the Commissioner of Taxation

by notice in writing [to] require any person … to attend and give evidence before him … concerning his or any other person’s income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.[17]

In other words, the only documents of which the Commissioner could require production were those which in fact ‘related to’ the income or assessment in question.

[16]Reasons [43].

[17]Emphasis added.

Section 155(1) of the TPA relevantly stated:

Where … the Chairman … has reason to believe that a person is capable of furnishing information, producing documents … relating to a matter that constitutes, or may constitute, a contravention of this Act … a member of the Commission may, by notice in writing served on that person, require that person:
(a) to furnish to the Commission … any such information;
(b) to produce to the Commission … any such documents.[18]

[18]Emphasis added.

Once again, the provision authorising the issue of the notice confined the scope of the required production. The only documents of which production could be required were documents ‘relating to a matter that constitutes, or may constitute, a contravention of this Act’. It is the construction of that statutory phrase which underpins the decisions on which the applicants rely.

By contrast, s 9(1) contains no requirement that the information or documents specified in the notice ‘relate to’ any subject-matter. The Authority is empowered to require the recipient to provide ‘such information as the Authority requires’, and to produce any document in the recipient’s custody and control. The only limitation is one of purpose. That is, the power under s 9(1) can only be exercised for one or other of the specified purposes.

It follows, in my view, that the authorities relied on do not — cannot — determine what content is required for a notice under s 9(1) of the OHSA to be valid. They are, at best, illustrative of the kinds of issues which may require resolution when the exercise of a coercive power of this kind is communicated through a statutory notice.

A similar conclusion was arrived at, in a different statutory context, in Australian Securities Commission v Lucas.[19] That case concerned a notice issued under s 30 of the Australian Securities Commission Act 1989 (Cth), which authorised the Australian Securities Commission to give to a body corporate

a written notice requiring the production to a specified member or staff member … of specified books relating to affairs of the body.

[19](1992) 36 FCR 165 (‘Lucas’).

Section 28 of that Act identified four purposes for which that power (and other powers conferred on the Commission) could be exercised. The validity of the particular notice was challenged on the basis that it did not

contain sufficient information to show that it was given for a purpose comprehended by s 28.[20]

There, as here, reliance was placed on ANZ and on the line of authority concerning s 155 of the TPA.

[20]Ibid 170.

Drummond J rejected the challenge, saying:

It is true that, by s 28 of the Act, the power to require production of documents by notice issued under s 30 is only exercisable by the Commission for one or more of the four purposes specified in s 28. But there is no obvious justification for implying into the clear words of s 30 a further requirement that, in addition to the matters which s 30 requires to be specified in the notice, there must also be stated in the notice sufficient information to show that it is being issued in circumstances in which the Commission has power under s 28 to take that action.[21]

And again:
When a statutory provision empowers a public official to demand information and documents from the citizen, on pain of criminal penalties if he does not comply with the demand, there is no justification for finding by implication matters which must be stated in the notice if it is to be valid in form beyond those matters which can be identified by the process of construing the statutory provision in question as those which must be stated in the notice. The decisions on s 264 of the Income Tax Assessment Act and s 155 of the Trade Practices Act illustrate this truism and do not support the principle contended for by the respondent.[22]

[21]Ibid.

[22]Ibid 173 (emphasis added).

The following year, in MacDonald v Australian Securities Commission,[23] Davies J declined to follow the decision in Lucas. His Honour pointed out that there were provisions in the regulations, and a prescribed form, requiring that a notice given under s 30 should state ‘the nature of the matter to which the investigation relates’. More generally, however, Davies J went on to say that what was said in ANZ (see [38] below)

governs the interpretation of all provisions such as s 30, absent provisions in the statute which express a contrary intention or from which a contrary intention should necessarily be inferred … It is a principle of law that such a notice should make it clear to the person on whom it is served that the giver of the notice is undertaking an inquiry which the giver is empowered to undertake and that the documents required to be produced are relevant to that inquiry.[24]

[23](1993) 43 FCR 466.

[24]Ibid 471. See also Australian Securities and Investments Commission v Sigalla [No 2] (2010) 271 ALR 164, 184–6.

For the reasons I have given, I respectfully prefer the analysis of Drummond J. In my opinion, neither the decision in ANZ nor the s 155 decisions express ‘a principle of law’ applicable to all notices of this kind. Instead, those decisions are to be seen as turning on the express language of the authorising provisions. So much seems to me to be confirmed by the decision of the Full Federal Court in SA Brewing Holdings Ltd v Baxt,[25] discussed below.
[25](1989) 23 FCR 357 (‘SA Brewing’).

At the same time, those authorities do highlight the distinction which I have sought to draw, between the validity of the exercise of the coercive power and the validity of the notice issued in communication of that exercise of power. In ANZ, for example, Gibbs CJ dealt first with an attack on the Commissioner’s exercise of the power under s 264(1)(b), on the basis that ‘a necessary condition precedent had not been fulfilled’. He rejected that argument, saying that there was no justification ‘for reading in a condition precedent which [the section] does not express’.[26]
[26]ANZ (1979) 143 CLR 499, 523–4.

Later in the judgment, the Chief Justice turned to the quite different question of ‘whether the notices given were sufficient in form’. In a much-cited passage, he said:

To be valid a notice to produce documents under s 264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced. However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, ‘your books of account’) may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified. The power is confined to giving a requirement of a particular kind — a requirement to produce documents relating to the income or assessment of some person — and a notice requiring the production of documents not so related is beyond the scope of the power.[27]

[27]Ibid 525.

As this passage makes clear, the second requirement was founded on the express language of s 264(1)(b). The coercive power was exercisable only with respect to ‘documents relating to the income or assessment of some person’. If the relationship was not self-evident, his Honour said, the notice ‘must show that the documents relate to the income or assessment of a particular person’. As I have already pointed out, s 9(1) contains no such language.

In Pyneboard Pty Ltd v Trade Practices Commission,[28] the Full Federal Court likewise distinguished between:

(a) the conditions of the existence of the power to require the furnishing of information and the production of documents; and

(b) the conditions of validity of a notice purportedly given pursuant to
s 155(1).

[28](1982) 39 ALR 565 (‘Pyneboard’).

As to the power itself, there was said to be one express limitation (based on the language of the section) and one implied limitation (that the power be used in good faith for the purpose for which it was conferred).[29] The conditions of validity of the notice, on the other hand, were both ‘implicit’, and both related to ‘the form or content of the notice’. The Court (Northrop, Deane and Fisher JJ) said:

In a context where refusal or failure to comply with a s 155 notice is punishable by imprisonment or fine, there are, in our view, two further implicit conditions of validity of a notice purportedly given pursuant to s 155(1) of the Act. Those two further conditions of validity relate to the form or content of the notice. The first is what the notice must convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce. The second is that the notice must disclose that the Commissioner is entitled to require that the recipient furnish the information or produce the documents which the notice describes.[30]

[29]Ibid 569–70.

[30]Ibid 570.

The present applicants relied in particular on the decision of the Full Federal Court in Bannerman,[31] where Bowen CJ and Neaves J said:

The requirement that a notice under s 155(1) identify the matter that constitutes, or may constitute, a contravention of the Act has a twofold purpose. First it is necessary that the notice disclose on its face that it is an exercise of the power which the sub-section confers. That power depends upon the existence, objectively determined, of a ‘matter’, in the sense in which that expression has been explained in earlier decisions of the Court, that constitutes, or may constitute, a contravention of the Act and a belief in the person issuing the notice that the recipient is capable of furnishing information or producing documents relating to the matter so identified. Secondly, the identification of the matter that constitutes, or may constitute, a contravention of the Act provides for the recipient the point of reference by which to judge whether the notice validly requires the specified information to be furnished or the specified documents to be produced. It will only validly do so if the information and the documents specified in the notice can be seen, from the face of the notice itself, to be information or documents that relate to a matter of the kind described in the sub-section and identified in the notice.[32]

[31](1984) 2 FCR 581.

[32]Ibid 584 (emphasis added).

The s 155 question next came before the Full Federal Court in SA Brewing.[33] In that case, Fisher and French JJ confirmed that the requirement to specify a ‘matter’ would be satisfied if the notice identified

an ‘affair or thing’ that refers to a body of facts which constitute or may constitute a contravention.[34]

Their Honours emphasised that there was no necessity to specify a contravention.

[33](1989) 23 FCR 357.

[34]Ibid 369.

Their Honours referred to Pyneboard as having ‘made explicit’ the ‘proposition that the specification of a relevant ‘matter’ is a condition of the validity of a s 155 notice.’[35] They quoted the following statement from the joint judgment in that case:

[T]he notice must disclose that the Commissioner is entitled to require that the recipient furnish the information or produce the documents which the notice describes.[36]

[35]Ibid.

[36]Pyneboard (1982) 39 ALR 565, 570.

Describing this condition of validity as the ‘entitlement disclosure condition’, Fisher and French JJ pointed out that ‘a statutory basis’ for that condition had been propounded by Davies J in Bannerman, as follows:

Section 155 of the Trade Practices Act 1974 (Cth) must be given effect in like manner. Not only does the section provide a penalty for breach of the obligation imposed upon the recipient of the notice, but s 155(1) in terms does not empower the Chairman to require the recipient of the notice to provide any information whatever or any document whatever but only 'such information' and 'such documents', that is to say, information and documents 'relating to a matter that constitutes, or may constitute, a contravention of this Act'.[37]
[37]SA Brewing (1989) 23 FCR 357, 371.

Conclusion

For the foregoing reasons, I consider that the notices did not need to specify the purpose for which the s 9(1) power was being exercised, or to identify the suspected contravention(s) which the Authority was investigating. It was sufficient that the notices identified the accident as the subject of the investigation, enabling the recipients to ascertain readily the relevance of the information and documents sought.

Mine is, however, a minority view in this respect. On the assumption (contrary to my view) that the notices did need to contain sufficient information to

establish their own validity, I respectfully agree with the reasons given by Kaye JA for concluding that the notices satisfied that requirement.

TATE JA:

I have had the benefit of reading the judgment, in draft form, of Kaye JA. I agree, for the reasons his Honour gives, that leave to appeal should be granted but the appeal should be dismissed.

KAYE JA:

The respondent is an inspector appointed by the Authority under s 95 of the OHSA.

On 23 September 2014, the respondent served on each of the two applicants a written notice, under s 9(1) of the OHSA, requiring the applicants to produce information and documents specified in each notice. Subsequently, on 23 February 2015, the respondent laid two charges in the Heidelberg Magistrates’ Court against the first applicant, and one charge against the second applicant, for alleged contraventions of s 9(2) of the OHSA. The applicants contested the charges on two bases, namely, that the notices were not validly issued, and that they each had a ‘reasonable excuse’ for failing to comply with the notice, within the meaning of s 9(2) of the OHSA. The magistrate, who heard the charges, dealt with the first issue as a preliminary matter, and held that the notices were valid. Subsequently, after a contested hearing, the magistrate found each charge proven. The magistrate fined the first applicant $25,000, and the second applicant $10,000, each without conviction, and ordered that each applicant pay the respondent’s costs in the sum of $15,943.

Pursuant to s 272 of the Criminal Procedure Act 2009 (Vic), the applicants brought an appeal against the findings of guilt in each case. The appeal was heard before a trial judge of this Court. There were three primary bases to the appeal, but only one is relevant for the purposes of this application, namely, that the magistrate erred in law in finding that the notices were valid (in form). On 22 September 2017, the trial judge delivered reasons for judgment, dismissing the appeal, and ordering the applicants to pay the costs of and incidental to the proceeding.[38] In reaching that decision, the judge held that the notices served on each of the applicants were valid in form. The applicants seek leave to appeal that decision.
[38]Reasons.

Background

The background circumstances to the service of the notices can be briefly summarised. On 5 December 2011, Mr Anthony Perito, a truck driver, employed by the second applicant, Epping Transport Pty Ltd (‘Epping’), was driving a fully loaded concrete truck on Bulla Road towards Sunbury. The first applicant, Aurora Construction Materials Pty Ltd (‘Aurora’), was the registered owner of the truck. As the vehicle approached a curve in the road, it tipped on its side and collided with an oncoming vehicle. As a consequence of the accident, Mr Perito received serious spinal injuries, which rendered him paraplegic.

Shortly after the accident, the General Manager of Aurora notified the Authority of the incident. In early 2012, the solicitors acting for Mr Perito requested the Authority to investigate the incident. It was alleged that immediately before the accident the brakes on the vehicle had failed, and that the second applicant had been previously warned that the braking system of the vehicle was defective. An inspector of the Authority investigated the allegations, and concluded that they could not be substantiated, because the vehicle had been serviced by a competent person.

More than two years after the accident, the lawyers for Mr Perito again wrote to the Authority requesting, under s 131(1) of the OHSA, that a prosecution be brought against the applicants. The letter enclosed expert reports, and contended that the accident occurred due to breaches by the applicants of the OHSA. At that stage, the two year limitation period, specified in s 132(1)(a) of the OHSA for commencement of prosecutions arising from the accident, had expired. However, a prosecution may be brought at any time with the written authorisation of the Director of Public Prosecutions, pursuant to s 132(1)(d) of the OHSA. The respondent commenced an investigation into the incident, as it was obliged to do under s 131(2)(a) of the OHSA. As part of that investigation, the notices were served on the applicants pursuant to s 9(1) of the OHSA.

The notices

Section 9(1) of the OHSA provides:

9. Power to obtain information
(1)For the purpose of ascertaining whether this Act or the regulations have been complied with or of investigating a suspected contravention, the Authority may (by written notice) require a person to —
(a)give the Authority such information as the Authority requires; or
(b)produce a document in the custody or control of the person.

The notices served on each applicant were relevantly the same. The first three paragraphs of the notice, addressed to Aurora, stated as follows:

1.The Victorian Workcover Authority (the Authority) is conducting an investigation arising from a workplace incident that occurred on Bulla Road, Bulla, Victoria on 5 December 2011. In that incident, Mr Anthony Perito (an employee of O’Hearns Transport Pty Ltd and The Trustee for Transport Investment Trust) sustained serious injuries when the Kenworth (2008) T 350 Concrete Agitator he was operating failed to brake (the Incident).
Requirement to Give Information Pursuant to s 9(1)(a) of the Act:
2.For the purpose of investigating suspected contraventions of the Occupational Health and Safety Act 2004 (and associated regulations), the Authority requires Aurora Construction Materials Pty Ltd to give the Authority the information described in Schedule 1 to this Notice by 4.30 pm on 06 10 2014 (the Compliance Date).
Requirement to Produce Documents Pursuant to s 9(1)(b) of the Act:
3.For the purpose of investigating suspected contraventions of the Occupational Health and Safety Act 2004 (and associated regulations), the Authority require Aurora Construction Materials Pty Ltd to produce to the Authority the documents which are in Aurora Construction Materials Pty Ltd custody or control and which are described in Schedule 2 to this Notice by 4.30 pm on the Compliance Date.

The fourth paragraph of the notices specified the person to whom the documents and information were to be provided. In the next section, headed ‘Notes’, the notices advised the recipient of the power under which the information and documents were sought, and of the effect of s 153 of the OHSA, that made it a criminal offence to give information that a person knows to be false or misleading. In schedule 1, the notices specified the information sought by the respondent. In schedule 2, the notices required production of ‘any and all documents in your custody or control in relation to’ the matters specified in schedule 1.

Proceedings before primary judge

As mentioned, the magistrate, who heard the charges, in a preliminary ruling, held that the notices were valid. In its notice of appeal to the Trial Division of this Court, the applicants relied on one ground concerning the validity of the notices, namely:

The Magistrate erred in law in finding that the Notices were valid in circumstances where the Notices failed to:
(a)identify the matter(s) which constituted the suspected contravention(s) of the OHSA;
(b)disclose on their face the section of the OHSA which was the subject of the suspected contravention(s); or
(c)enable the Appellants to determine whether the requested documents had been validly sought.

Before the primary judge, the applicants submitted that the s 9 notices were invalid, because they did not specify the matter that constituted, or might constitute, a contravention of the OHSA or the regulations, so as to enable them to ascertain, from the face of the notices, that the information and documents that were required to be produced or provided related to that matter. The applicants alleged that the notices should have, but did not, state the nature of the breaches of the OHSA or regulations, which the respondent suspected had occurred. In that respect, the applicants noted that the OHSA and the regulations contain a large number of provisions which might be contravened. The statement, in the notice, that the truck ‘failed to brake’, was not sufficient to allege a suspected contravention of the OHSA or the regulations. Accordingly, it was submitted, the notices served on each applicant were invalid.

In response, the respondent submitted, to the primary judge, that there was no requirement that notices served under s 9 of the OHSA identify a specific provision of the OHSA or regulations that are the subject of suspected contraventions. Further, it was submitted that the notice was not required to specify any particular suspected contravention of the OHSA or regulations. It was contended that, as the notices were served for investigative purposes, the Authority may be entirely ignorant as to who might have contravened the OHSA, how that contravention occurred, and which provision of the OHSA (or regulations) was contravened. Thus, if it were necessary that a notice, under s 9, specify the particular suspected contravention, or contraventions, s 9 would be deprived of much of its utility.

Reasons of primary judge

In his reasons, the primary judge referred to a number of authorities relating to the adequacy of notices given under s 155(1) of the TPA. The judge extracted, from those authorities, six principles which were apposite to the case before him, namely: first, the notice must show an entitlement to obtain the information specified in it; secondly, the notice is not to be construed in an over-technical or hyper-critical manner; thirdly, the notice need not plead all the facts necessary to found a contravention, or possible contravention, of the OHSA, but, rather, it need only state the facts on which the suspected contravention is based; fourthly, it is not necessary that the notice specify the sections of the OHSA (or regulations) that are suspected of being contravened; fifthly, the facts, specified in the notice, must be capable of constituting a contravention of the relevant Act; and, sixthly, the issue of a notice, under s 9 of the OHSA, is part of the investigative procedures of the OHSA, and is issued before completion of the investigation.[39]
[39]Reasons [44]–[47].

The judge further noted that the Authority did not issue the notices under the first limb of s 9(1), which permits a notice to be issued ‘for the purpose of ascertaining whether this Act or the regulations have been complied with’. The judge further noted that a s 9 notice is issued as part of the Authority’s investigative role, in which the Authority may need to obtain information or documents, before reaching a conclusion whether particular provisions of the OHSA have been contravened. The judge considered that the effect of the authorities, relating to notices under s 155 of the TPA is that a notice must sufficiently describe the workplace incident being investigated, and that it may only request information or documents ‘… that relate to that identified incident’.[40] The judge further stated:

The investigatory powers of the VWA are broad and at the time when a s 9 notice is issued there is no requirement that the particular provisions of the Act, which the VWA suspects have been contravened are specified. The identification of any specific provisions of the Act or regulations said to have been contravened is one of the tasks of the investigation. Section 9 does not require the VWA to do more than describe in the notice the facts on which its suspicion of contraventions of the Act or regulations are based. The VWA was entitled to issue a s 9 notice as part of its investigation of Mr Perito’s accident and who was legally responsibility for it.[41]

[40]Ibid [54].

[41]Ibid [55].

His Honour then referred to a number of other provisions of the OHSA, which required particularisation of the provisions of the OHSA suspected of having been contravened, such as s 104[42] and s 111(2)(b).[43] By contrast, the judge noted that s 9 did not expressly require that a notice particularise the provisions of the OHSA that were suspected of having been contravened. The judge then concluded:

In my opinion, the Notices issued to the companies do sufficiently indicate that the VWA was acting within power as part of its investigation of the incident on 5 December 2011 and establish its entitlement to seek the information and documents. They identify the facts which founded the VWA’s suspicion that there has been a contravention or contraventions of the Act or the regulations. The Notices have to be read as a whole and not in an overtechnical or hypercritical manner. When that [is] done the following appears. First, the Notices state that the VWA is investigating a workplace incident. Secondly, the Notices state where that incident occurred. Thirdly, the Notices state who was involved in that incident and who is said to be the employer. Fourthly, the Notices state the consequences of the injuries to the employee. Fifthly, the Notices state how, in the immediate sense, those injuries occurred. Sixthly, the Notices state that information and documents are required for the purposes of investigating suspected contraventions of the Act.[44]
[42]Section 104 of the OHSA provides for the issue of search warrants. Section 104(4) provides:
(4)In addition to any other requirement, the search warrant must state—
(a)the offence suspected; and
(b)the place to be searched; and
(c)a description of the thing for which the search is to be made; and
(d)any conditions to which the warrant is subject; and
(e)whether entry is authorised to be made at any time or during specified hours; and
(f)that the warrant authorises entry on only one occasion; and
(g)a day, not later than 7 days after the warrant is issued, on which it ceases to have effect.
[43]Section 111 of the OHSA provides for an Inspector to issue an improvement notice. Section 111(2)(b) provides that the notice must ‘specify the provision of the Act or the regulations that the inspector considers has been or is likely to be contravened’.
[44]Ibid [59].

Proposed grounds of appeal

The applicants rely on one proposed ground of appeal, namely:

1.The learned trial judge erred in law in finding that the Notices purportedly issued under section 9 of the Occupational Health and Safety Act 2004 (OHSA) dated 23 September 2014 (the Notices) were valid in circumstances where the Notices failed to:
(a)Identify the matter(s) which constituted the suspected contravention(s) of the OHSA;
(b)Disclose on their face the section of the OHSA which was the subject of the suspected contravention(s); or
(c)Enable the Applicants to determine whether the requested documents had been validly sought.

Submissions

Counsel for the applicants commenced by submitting that, although each of the notices made brief reference to a workplace accident, they entirely failed to identify the suspected contravention of the OHSA or the regulations that was being investigated. Nor did the notices specify the provision or provisions of the OHSA or regulations, which were the subject of the suspected contravention that was being investigated, or the person who was suspected of committing the contravention.

Counsel noted that under s 153 of the OHSA it is an offence to give false or misleading information in response to a s 9 notice, or to produce a document that a person knows to be false or misleading. Section 154 of the OHSA excuses a natural person from providing information if the giving of that information would tend to incriminate the person. While the privilege against self-incrimination does not apply to the applicants, nevertheless the existence of that privilege is important, because, if the construction of s 9, contended for by the respondent, were accepted, a natural person could be required by the Authority to provide incriminating documents, in circumstances in which the notice requiring the production of the documents did not disclose the suspected contravention that was under investigation. In that way, it was submitted, if the construction preferred by the trial judge, and relied on by the respondent, were accepted, the protection against self-incrimination would be abrogated under s 154(2) in circumstances where the natural person was unaware of what was alleged against him or her.

In support of his submissions, counsel relied on a number of cases in which it has been held that a notice, under s 155 of the TPA, must specify, on its face, the nature of the particular breach or matter to which it relates. In that connection, counsel referred, in particular, to Bannerman,[45] Seven Network Limited v Australian Competition and Consumer Commission,[46] Pyneboard,[47] SA Brewing[48] and Singapore Airlines Limited v Australian Competition and Consumer Commission.[49] Counsel also referred to a number of cases, involving other legislation, in which the principles, enunciated in those authorities, were applied.[50]
[45](1984) 2 FCR 581.
[46](2004) 140 FCR 170 (‘Seven Network Limited’).
[47](1982) 39 ALR 565.
[48](1989) 23 FCR 357.
[49](2009) 260 ALR 244 (‘Singapore Airlines Limited’).
[50]D’Anastasi v Environment, Climate Change and Water NSW (2011) 81 NSWLR 82 (‘D’Anastasi’); Construction Forestry Mining and Energy Union v Alfred (2016) 242 FCR 35 (‘CFMEU v Alfred’), Thorson v Pine (2004) 139 FCR 527 (‘Thorson’).

Counsel noted that, pursuant to the principles that were defined in those authorities, the notices should have expressly contained sufficient information to demonstrate that the notice was an exercise of the power contained in s 9, and also to enable the recipient to determine whether the documents and information, requested by the notice, were validly sought. In order that the respondent be entitled to seek the information and documents contained in the notice, it must first entertain a suspicion of a contravention of a provision of the OHSA or the regulations. Thus, it was submitted, it was necessary that the notice sufficiently specify the particular contravention or contraventions of the legislation or regulations, that were suspected, in order to provide a point of reference by which the recipient of the notice might assess whether the requested documents and information were validly sought. Counsel contended that the allegation, in paragraph 1 of each notice, that the vehicle, driven by Mr Perito, ‘failed to brake’, did not satisfy that requirement, as it did not sufficiently specify the suspected contraventions of the OHSA or regulations, on the basis of which the Authority was entitled to serve the notices on the applicants.

In the applicants’ written submissions, it was contended that, even if the notices could be understood to specify that the contravention, that was suspected, was of one of the general duties specified in pt 3 of the OHSA, that would not have been sufficient. The essential element of an offence, under such a provision, is the failure to take a ‘measure’ which could have eliminated or reduced a risk to health or safety.[51] However, the notices did not identify any such measure which ought to have been taken, but was not taken, by the recipient. Nor, it was contended, was any other act or omission identified which could constitute the contravention of one of the general duties contained in the provisions of the OHSA. Thus, it was submitted, the notices did not identify at all the suspected contravention that was being investigated by the Authority. In the written submissions on behalf of the applicant, it was contended that the notices should have identified what it was alleged each applicant (or some other person) failed to do under the OHSA or the regulations, which was the basis of the suspected contravention relied on for service of the notice.
[51]Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 554 [16], 557 [26]; Baiada [2015] VSCA 344 [48]–[50].

In oral submissions, senior counsel, who appeared for the applicants (who was not the author of the written submissions), resiled from, and did not rely on, the contentions summarised in the previous paragraph of these reasons. Rather, it was submitted, that in order to be valid, a notice under s 9 of the OHSA must specify the particular content of the suspected contravention or contraventions, based on which the notices were served on the recipients. Thus, it was contended, where the Authority harboured a particular or specific suspicion (for example, that the vehicle’s brakes had not been properly maintained), the Authority was required to specify that particular matter as the basis for its suspicion that a provision, or provisions, of the OHSA and regulations had been contravened. On the other hand, counsel accepted that, where the relevant suspected contravention was of a more general form, it would have been sufficient if the notices had specified a particular provision or provisions of the OHSA and regulations that, it was suspected, had been contravened. In particular, counsel submitted that, in the present case, it would have been sufficient if each of the notices had alleged, for example, that the recipient failed to comply with the duty imposed by s 21(1) of the OHSA.

In response, counsel for the respondent commenced by accepting that, in order to be a valid notice issued under s 9 of the OHSA, the notice must allege facts, that would establish that the Authority was entitled to require the recipient to give the information, or produce the documents, specified in the notice. However, counsel submitted that, in the context of the present case, the notices were sufficient to satisfy that requirement.

In particular, counsel observed that s 9 did not contain an express requirement that the particular provision, that was suspected of being contravened, be specified. Counsel noted that, similarly, the power of an inspector who, under s 100 of the OHSA, enters premises, and requests be provided with documents or information, is not subject to any specific requirement that an offence provision be specified. In that respect, counsel contrasted s 9 (and s 100) with ss 104 and 111, which provide that the investigative powers, contained in those provisions, are conditional on a requirement that the particular offence or provision be specified.

Counsel for the respondent pointed out that, at the time at which a s 9 notice is issued, the Authority might suspect that some provision of the OHSA has been contravened, but it might be uncertain as to which provision was contravened, or who may have contravened it. In many cases, it would be premature for the Authority to particularise a specific provision of the OHSA, or a particular contravention of the OHSA. Further, it might be unclear whether a worker was at the relevant time an employee, independent contractor or sub-contractor of the entity which is required to provide the information or documents specified in the document. Thus, the Authority might not, at that point, be able to determine whether a suspected contravention was of s 21, or whether it was s 23, of the OHSA. Therefore, it was contended, if s 9 were to be interpreted as requiring that the notice must specify the particular provision, or provisions, that was, or were, suspected to have been contravened, it would be significantly deprived of practical effect.

Counsel for the respondent submitted that in the present case the notices were sufficient. Paragraph 1 of each notice stated that the Authority was investigating a workplace accident. It specified: where that accident occurred; who was involved in the accident; the identity of the person alleged to be the employee; the consequences of the injuries to the employee; and how, in the immediate sense, those injuries were caused (namely, the vehicle ‘failed to brake’). In paragraphs 2 and 3 of each notice, it was stated that the Authority required the information and documents, specified in the schedules, for the purpose of investigating suspected contraventions of the OHSA and the associated regulations. It was contended that, in that way, each notice sufficiently identified the suspected contravention or contraventions, on the basis of which the Authority was entitled to serve the notice.

Counsel for the respondent further submitted that the contention, advanced on behalf of the applicants in oral submissions, that the notice must specify the content of the particular suspected contravention or contraventions of the OHSA or regulations, should be rejected. In particular, the test, postulated by the authorities, is not whether the notice sufficiently sets out each of the contraventions of the OHSA or regulations, that are suspected by the Authority. Such a test would be of no utility, as the recipient of a notice could not, from the face of the notice, be able to assess whether in fact the Authority had accurately set out each of the suspected contraventions of the OHSA or regulations. Rather, it was submitted, the principle, established by the cases, is that the notice, issued by the Authority, must on its face disclose the entitlement of the Authority to obtain the information or documents sought in the notice. In other words, it must be possible for the recipient of the notice to be able to determine, from the face of the notice, that it was a valid exercise of the power of the Authority. It was submitted that, for the reasons set out above, each notice in this case was sufficient for that purpose, by identifying, in detail, the particular incident that was under investigation, and by expressly stating that the incident was a consequence of suspected contraventions of the OHSA and the regulations.

Legal principles and analysis

Under s 9 of the OHSA, the Authority does not possess a power, at large, to require the compulsory provision to it of information or documents by a notice served under that section. Rather, s 9 specifies two circumstances in which the Authority is entitled to require the provision to it of information or documents specified in a notice, namely, first, for the purpose of ascertaining whether the OHSA or the regulations have been complied with, and, secondly, for the purpose of ‘investigating a suspected contravention’ (of the OHSA or regulations). In the present case, each notice relied on the second basis specified in s 9, namely, that the information and documents specified in such notice were required for the purpose of investigating a ‘suspected contravention’ of the OHSA or regulations. Thus, in order that the respondent be entitled to serve the notices on the applicants, it was necessary that there be a suspected contravention (or suspected contraventions) of the OHSA or regulations, and that the documents and information, sought in the notice, be directed, or related, to that investigation.

In the present proceeding, the respondent has accepted — as indeed was the fact — that the notices, served on the applicants, did not specifically state the suspected contravention, or contraventions, which was or were the subject of investigation by him. The respondent has also accepted as correct the proposition, stated by the primary judge,[52] that, in order that a notice under s 9 be valid, the notice must allege facts or circumstances that establish that the Authority is entitled to require the recipient to provide the information, or produce the documents, specified in the notice. In this application, the critical issue is whether the notices in question fulfilled that requirement by their description of the investigation, being undertaken by the Authority, that is contained in paragraph 1 of each notice.
[52]Reasons [54].

There is no direct authority on the requirements that are necessary to be fulfilled in order that a notice under s 9 of the OHSA be valid. However, there are a number of decisions concerning provisions contained in other legislation which, in a similar manner to s 9 of the OHSA, entitled an investigative or enforcement authority to require the compulsory provision to it of information or documents. The principles, outlined in those cases, need to be adapted, in order to allow for differences between the legislation in those cases and s 9 of the OHSA, both in the language in which the particular provisions were couched, and also in order to take into account the different legislative contexts in each case. Nevertheless, and bearing that caveat in mind, the decisions in those cases are based, significantly, on general principles, that are applicable to the general class of provisions, to which s 9 of the OHSA belongs, and which entitle an investigative or enforcement authority to require the compulsory provision to it of information or documents.

The fundamental principle, discussed in the cases, is that a notice, requiring the compulsory provision of information or documents, must fulfil two important conditions. First, the notice must disclose, on its face, that it is an exercise of the power which is conferred on the Authority by the statutory provision in question. Secondly, the notice must specify, with reasonable clarity, the information that the recipient is required to provide, or the documents that the recipient is required to produce, so as to enable it to be judged whether the Authority in question is entitled to require the provision of the information or documents stipulated in the notice.

Those principles have been stated, and repeated, in a number of decisions involving notices served by the Trade Practices Commission under s 155 of the TPA. That section provided:

Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, or is relevant to the making of a decision by the Commission under subsection 93(3), a member of the Commission may, by notice in writing served on that person, require that person —
(a)to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;
(b)to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such document; or
(c)to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.

That provision was considered by the Full Court of the Federal Court in Pyneboard.[53] That case concerned the validity of notices issued by the Chairman of the Trade Practices Commission. In their joint judgment, Northrop, Deane and Fisher JJ stated:

The power to require the furnishing of information and the production of documents which is conferred by s 155(1) is subject to at least two general limitations, one express and one implied. The express limitation is that it is a condition of the existence, in the particular case, of the power which the section confers that ‘the Commission, the Chairman or Deputy Chairman has reason to believe’ that the particular person is capable of furnishing information or producing documents relating to a matter of a kind described in the sub-section. The implied limitation is the ordinary one that it is a condition of a valid exercise of the power that it be used in good faith for the purpose for which it was conferred and with regard to the effect that the exercise of the power will have upon person affected thereby: see FC of T v Australia and New Zealand Banking Group Ltd (1979) 23 ALR 480 at 505:
In a context where refusal or failure to comply with a s 155 notice is punishable by imprisonment or fine, there are, in our view, two further implicit conditions of validity of a notice purportedly given pursuant to s 155(1) of the Act. Those two further conditions of validity relate to the form or content of the notice. The first is that the notice must convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce. The second is that the notice must disclose that the Commissioner is entitled to require that the recipient furnish the information or produce the documents which the notice describes.[54]

[53](1982) 39 ALR 565.

[54]Ibid 569–70.

In stating those principles, the Full Court referred to, and quoted from, the judgment of Gibbs ACJ in ANZ.[55] That case concerned a notice served by the Commissioner of Taxation under s 264(1)(b) of the ITAA, which provided that the Commissioner was entitled, by a notice in writing, to require any person to attend and give evidence before him or an officer authorised by him ‘… concerning his or any other person’s income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto’. In respect to that notice, Gibbs ACJ stated:

The next question that arises is whether the notices given to the Bank were sufficient in form. To be valid a notice to produce documents under s 264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced. However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, ‘your books of account’) may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified. The power is confined to giving a requirement of a particular kind — a requirement to produce documents relating to the income or assessment of some person — and a notice requiring the production of documents not so related is beyond the scope of the power.[56]

[55](1979) 143 CLR 499.

[56]Ibid 525; see also at 536–7 (Mason J); see also Jones v Commonwealth (1963) 109 CLR 475, 482–3 (Dixon CJ), 487 (Kitto J).

Those principles have been followed and applied in a number of subsequent authorities relating to the validity of a notice served under s 155 of the TPA. In Bannerman,[57] Bowen CJ and Neaves J stated:

The requirement that a notice under s 155(1) identify the matter that constitutes, or may constitute, a contravention of the Act has a twofold purpose. In the first place it is necessary that the notice disclose on its face that it is an exercise of the power which sub-s (1) confers. That power depends upon the existence, objectively determined, of a ‘matter’, in the sense in which that expression has been explained in earlier decisions of the court, that constitutes, or may constitute, a contravention of the Act and a belief in the person issuing the notice that the recipient is capable of furnishing information or producing documents relating to the matter so identified. Secondly, the identification of the matter that constitutes, or may constitute, a contravention of the Act provides for the recipient the point of reference by which to judge whether the notice validly requires the specified information to be furnished or the specified documents to be produced. It will only validly do so if the information and the documents specified in the notice can be seen, from the face of the notice itself, to be information or documents that relate to a matter of the kind described in the sub-section and identified in the notice.[58]

[57](1984) 2 FCR 581.

[58]Ibid 584; see also at 588 (Davies J); see also SA Brewing (1989) 23 FCR 357, 370 (Fisher and French JJ); Seven Network Limited (2004) 140 FCR 170, 182 [49] (Sackville and Emmett JJ).

The same principles have been applied in other legislative provisions requiring the compulsory furnishing of documents or information to an Authority. In particular, in D’Anastasi,[59] they were applied to s 193 of the Protection of the Environment Operations Act 1997 (NSW). In CFMEU v Alfred,[60] they were applied to s 712 of the Fair Work Act 2009 (Cth). In Thorson,[61] they were applied to s 86 of the Workplace Relations Act 1996 (Cth).
[59](2011) 81 NSWLR 82.
[60](2016) 242 FCR 35, 45 [24]–[25] (Logan J).
[61][2004] 139 FCR 527, 534–5 [34]–[35] (Marshall J).

In D’Anastasi, s 193 of the Protection of the Environment Operations Act 1997 entitled an authorised officer of the Environment Protection Authority, by notice in writing, to require a person to furnish information or records ‘in connection with any matter within the responsibilities and functions of the regulatory authority … ‘. The Court of Appeal of New South Wales held the notice, in that case, to be invalid, because it failed to identify a matter that fell within the responsibilities and functions of the relevant regulatory authority. In reaching that decision, Young JA (with whom Campbell JA and Sackville AJA agreed) applied the principles to which I have referred, stating:

It is necessary to consider whether the notice fairly indicates to the addressee the matter within the responsibilities and functions of the regulatory authority about which the officer requires information.
In Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368; (1982) 39 ALR 565, the Full Federal Court (Northrop, Deane and Fisher JJ) had to deal with the validity of a notice issued by the Trade Practices Commission under s 155 of the Trade Practices Act 1974 (Cth).
The Court ruled that that Act required the giver of the notice to specify in the notice that the information or documents sought were information or documents ‘relating’ to one or more ‘matters’ of a kind described in the legislation about which the giver was entitled to serve the notice.
This requirement is not unique to the Trade Practices Commission. It has been the standard for statutory notices for a long time; see Lucerne v Collins [1967] NSWR 407; (1966) 14 LGRA 186.
In SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357, Fisher and French JJ said about s 155 of the Trade Practices Act (Cth) (at 370):
‘… the description of the relevant “matter” must go beyond a mere assertion that it constitutes or may constitute a contravention of some identified section. The notice must disclose the necessary relationship between the information sought and the matter in respect of which it is sought. This requires a sufficient description of the “matter” to enable the relationship to be discerned’.[62]

[62]Ibid 88 [39]–[43].

In my view, those principles apply, with appropriate adaptation, to s 9 of the OHSA. The power conferred on the Authority under s 9 is broad, but, as noted, is not at large. The service of a notice by the Authority, under s 9, entitles it to require the compulsory provision to it of documents and information which the recipient otherwise would not be obliged at law to disclose to it. A refusal or failure of a person, in receipt of such a notice, to comply with it, renders that person liable to the penalties prescribed in subsection (2). Although, under s 154 of the OHSA, the privilege against self-incrimination is preserved in respect of a natural person, it does not, of course, apply to a corporation which is in receipt of such a notice.[63] Unless a notice sufficiently discloses the basis on which the Authority is entitled to require provision to it of the document or information sought in it, the recipient of the notice would not be in a position to make any appropriate assessment as to whether the service of the notice was within the power of the Authority and therefore whether the recipient is obliged at law to comply with it.
[63]See also Evidence Act 2008 s 187.

In cases such as Bannerman and D’Anastasi, the notices were held to be invalid because they failed to specify sufficiently the ‘matter’, that was within the responsibility of the Authority which served the notice. It is, of course, necessary that the principles, discussed above, be tailored, and adjusted, to the prescribed entitlement of the Authority to serve a notice under s 9 of the OHSA, namely, (in this case) the investigation of a ‘suspected contravention’ of the OHSA or the regulations. Thus, the requirement, that the notice must demonstrate, on its face, that the Authority is entitled to the documents or information sought in the notice, has the effect that the notice must sufficiently specify the suspected contravention, or contraventions, that is or are the subject of the investigation, pursuant to which the information and documents are sought. In the absence of that specification, the recipient of the notice would not be able to assess, first, whether the Authority is entitled to demand the production of information and documents to it, and, secondly, whether the documents and information, specified in the particular notice, are within the ambit of that entitlement of the Authority.

In addressing that question, it is important to bear in mind that the information and documents, specified in a notice under s 9, are sought for the purposes of an investigation which may not be complete. As the respondent has correctly pointed out, the information and documents, sought in such a notice, may be necessary to fill in gaps of information, or to elucidate matters which are unclear. The investigation in question may be at an incipient or early stage. For those reasons, in considering the validity of the notice in a particular case, it is important to bear in mind the caution, that has been reiterated in a number of the cases, that the issue, of the validity of such a notice, should not be addressed in an over-technical or hyper-critical manner.[64] That caveat is of particular relevance to the service of notices under the OHSA, which has, as its express object, the securing of the health, safety and welfare of employees and other persons at work, and the elimination of risks to the health, safety or welfare of employees and other persons at work.[65]
[64]Pyneboard (1982) 39 ALR 565, 570–1; SA Brewing (1989) 23 FCR 357, 370; Seven Network Limited (2004) 140 FCR 170, 182 [49].
[65]Section 2(1)(a) and (b).

Nevertheless, the circumstance, that, as an investigation might be at a stage at which it would be premature to particularise a specific provision of the OHSA that was suspected to have been contravened, does not logically prevent the specification in a notice of the nature of the suspected contravention, or suspected contraventions, of the OHSA or regulations. In ordinary usage, a ‘suspicion’ is a state of mind that, while being short of proof of, or belief in, a state of facts, is more than a mere idle wondering, or speculation, as to the existence of that state of facts. In particular, it involves an actual apprehension, of the existence of a state of facts, which lacks either proof, or sufficient proof, to give rise to a belief in that state of facts.[66] It follows that the Authority would not have the power to serve a notice, under s 9, unless it is seized of sufficient knowledge or information concerning the possibility of a contravention of the OHSA or regulations, so as to possess such an apprehension or suspicion by it that a provision or provisions of the OHSA or regulations may have been contravened.
[66]Cf Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, 303 (Kitto J); George v Rockett (1990) 170 CLR 104, 115–16.

As I have noted, the authorities, relating to s 155 of the TPA, are concerned with the requirement that the notice under that section must specify a ‘matter that constitutes or may constitute a contravention of the TPA. In considering that requirement, the courts have made it plain that the Authority need not plead or specify all the facts that would constitute the particular contravention in question. Rather, as s 155(1) of the TPA referred to a matter which ‘may’ constitute a contravention, it contemplated a body of facts not fully known, but which might, when fully known, be sufficient to constitute the contravention referred to in the notice.[67] As a corollary to those propositions, where the ‘matter’, referred to in the notice, would be incapable, after allowing for undiscovered facts, of amounting to a contravention, then the issue of a notice would not be a valid exercise of the statutory power under s 155 of the TPA.[68]
[67]SA Brewing (1989) 23 FCR 357, 370, 371; Seven Network Limited (2004) 140 FCR 170, 183 [49]; Singapore Airlines Limited (2009) 260 ALR 244, 250 [36]–[37].
[68]SA Brewing (1989) 23 FCR 357, 371; Singapore Airlines Limited (2009) 260 ALR 244, 250 [38].

As mentioned, those requirements need to be appropriately adjusted in their application to s 9 of the OHSA, and, in particular, to the requirement, discussed above, that the notice must demonstrably be directed to the investigation of a ‘suspected contravention’ of the OHSA. As the power, under s 9, is contingent on the existence of such an investigation, the suspected contravention need not be described in the terms that would be appropriate for the detailed or comprehensive specification of a contravention or a possible contravention of the OHSA. On the other hand, the specification, of the suspected contravention, must be sufficiently clear that, if the suspicion is later found to be supported by facts which may be ascertained in the future, the object of the suspicion would be capable of constituting a contravention of the OHSA or regulations.

The principles, discussed above, do not require that a notice specify, in precise terms, the actual provision, or provisions, of the OHSA or regulations which, it is suspected, have been contravened. In the context of s 9 of the OHSA, what is necessary is that the notice sufficiently inform the recipient of the nature of the particular suspected contravention or contraventions, so that the recipient can sensibly assess whether the Authority has the power to require the provision to it of documents and information, and, further, whether the information and documents, sought in the notice, may relate to the suspected contravention that is the subject of the investigation by the Authority.[69]
[69]D’Anastasi (2011) 81 NSWLR 82, 88.

In determining the sufficiency and validity of the notice, according to the above principles, two further considerations need to be borne in mind.

First, as counsel for the respondent has pointed out, a notice, under s 9, is served for the purposes of an investigation, at a point at which it may not be possible to specify, with any degree of precision, that the particular contravention or contraventions of the OHSA or regulations which, it is suspected, have taken place. It is thus relevant that s 9 does not, in express terms, provide that the written notice must specify the particular contravention or contraventions that are suspected to have occurred. It should be contrasted with a provision such as s 111 of the OHSA. That section empowers an inspector to issue an improvement notice where the inspector ‘reasonably believes’ that a contravention is taking place, or that a previous contravention is likely to continue or be repeated. Section 111(2) requires that, in such a case, the notice must specify the provision of the OHSA or the regulations that the inspector considers has been or is likely to be contravened. The authorities have emphasised that the maxim of statutory construction, expressio unius exclusion alterius, should be applied with caution.[70] Nevertheless, the contrast between the power contained in s 9, and the power contained in s 111, and the contrast between the prescribed bases, upon which those powers are to be exercised, lend weight to the proposition, that it is not necessary for a notice to specify the particular provision or provisions, of the OHSA or regulations, which, it is suspected, have been contravened.
[70]See, eg, Re Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd (1979) 144 CLR 45, 50 (Stephen, Mason, Murphy, Aickin and Wilson JJ); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 575 (Mason CJ, Wilson, Toohey and Gaudron JJ); Wentworth v New South Wales Bar Association (1992) 176 CLR 239, 250 (Deane, Dawson, Toohey and Gaudron JJ).

On the other hand, the provisions of s 154 of the OHSA are also relevant in determining the adequacy and validity of a notice under s 9. Section 154(1) provides that a natural person may refuse or fail to give information if by giving the information would tend to incriminate that person. Unless a notice under s 9 is required to adequately specify the suspected contravention or contraventions of the OHSA or regulations, the protection provided under s 154(1) would, in the case of a natural person, be significantly deprived of value to the recipient of the notice. Further, s 154(2) provides that the privilege against self-incrimination does not apply to the production of a document required (inter alia) by s 9. In the absence of such a protection, it would be important that a notice under s 9 sufficiently identify the basis upon which the Authority is seeking the information or documents described in the notice, so that the recipient may have an adequate reference point by which to assess whether a particular document is one which the Authority is entitled to require to have provided to it.

The critical question, then, is whether the three notices in this case sufficiently informed the recipient of the nature of the particular suspected contravention or contraventions of the OHSA or regulations, in accordance with the principles outlined above.

In this respect, the first paragraph of the notices merits closer analysis. In that paragraph, the notices did more than identify the particular incident which was the subject of the investigation referred to in paragraphs 2 and 3 of the notice. Importantly, they stated that Mr Perito ‘… sustained serious injuries when the Kenworth (2008) T 350 Concrete Agitator he was operating failed to brake …’. The notices thus specifically stated that the vehicle failed to perform as it should have, namely, it failed to brake when it should have. In that way, the notices not only identified the cause of the accident, but, more significantly, they specified a particular deficiency in the functioning of the vehicle itself, namely, a failure of the vehicle to brake.

So expressed, the notices did not attribute the accident to anything that Mr Perito did, or omitted to do, on his operation of the vehicle. Rather, they attributed the cause of the accident to something that the vehicle failed to do, but should have done, namely, that it failed to brake. It is in that context, and in connection with that suspected deficiency in the functioning of the vehicle, that paragraphs 2 and 3 of the notice were expressed to state that the information in schedule 1, and the documents in schedule 2 of the notices, were sought for the purpose of investigating ‘suspected contraventions’ of the OHSA and the associated regulations. Taken together, the notices, in each case, thus informed the recipient that the suspected contravention, or suspected contraventions, stated in the notices, of the OHSA or regulations, related to a specific deficiency in the functioning of the Kenworth vehicle.

In that way, the notices did contain an important degree of specificity as to the nature of the contravention or contraventions, that were suspected to have occurred. Ordinarily, a vehicle should brake, provided that it is operated properly. As mentioned, there is no suggestion in the notices that the Authority suspected or alleged that there was a failure of Mr Perito in his operation of the vehicle. Rather, as stated, the notices were expressed in terms of the failure of the vehicle to do what it should have done, namely, to brake. The notices thus specified that the Authority was investigating suspected contraventions of the OHSA or regulations arising out of a specific deficiency in the vehicle, supplied by Aurora, and used by Mr Perito in his employment with Epping.

The question, then, is whether the notices, by that degree of specification, sufficiently identified the basis upon which the Authority was seeking the information or documents described in the notice, first, so as to disclose to the recipients that the Authority had the power to seek that information and those documents, and, secondly, so that the recipients had an adequate reference point by which to assess whether a particular document, or particular information, sought in the notice, was or were a document or information which the Authority was entitled to require to have provided to it.

Certainly, the notices did not specify any particular provision or provisions of the OHSA or regulations which, it was suspected, had been contravened. However, as I have stated, the principles, stated in the cases, do not contain an inflexible requirement that a notice must specify the particular provision or provisions of the OHSA or regulations that, it is suspected, had been contravened.

As mentioned, the notices specified the particular aspect of the vehicle, operated by Mr Perito, in respect of which the suspected contraventions had occurred. The recipient of the notices would thereby understand that the Authority was investigating the suspected contraventions of the particular duties or obligations, of the recipient, relating to that aspect of the vehicle. While the notices did not specify any particular provision, or provisions, of the OHSA or regulations, which, it suspected, had been contravened, the recipient of each notice would readily understand that the Authority was entitled to conduct an investigation in relation to an industrial accident, that had occurred due a deficiency in the vehicle provided to Mr Perito for the performance of his employment. In that way, the notice sufficiently identified the basis, upon which the Authority was seeking the information or documents described in the notice, so as to enable the recipient to consider whether the Authority was entitled to that information or those documents.

Further, by specifying the particular deficiency in the vehicle, namely, its failure to brake (when it should have), that was suspected of having caused the accident, the notices provided to each of the applicants a reference point by which to assess whether they were obliged to supply to the Authority particular information, or a particular document, specified in the notice. The recipient of each notice would understand that the notice only required it to provide to the Authority information and documents, specified in the notice, if that information or the documents, could be related to a suspected contravention of the OHSA or regulations connected with that specific aspect of the functioning of the vehicle.

That proposition can be illustrated by reference to the information sought in schedule 1 to each of the notices. By way of example, the information sought in clauses 1.6 to 1.12, and paragraph 2, of the schedule, was directed to issue of the maintenance and servicing of the vehicle. A recipient of the notices would readily understand that the information, sought in those sections of the schedule, was, in that way, directed to the suspected contravention specified in the notice. Similarly, the information, sought in cl 3 of each notice, was directed to issues concerning the loading of the vehicle. Again, a recipient of each notice would have little difficulty appreciating that that information was also connected to the suspected contravention or contraventions specified in the notice. The information, sought in cl 4 of the notices, concerned the circumstances of the accident itself. The happening of that accident was the focal point of the suspected contraventions. The connection between the information sought in cl 4, and the suspected contraventions, was thus self-evident.

The notices were, to say the least, economic in the manner in which they sought to convey to the recipient the nature of the suspected contravention or contraventions, that enlivened the power of the Authority to seek the information and documents specified in the schedules to the notices. However, for the reasons outlined above, the statement in each notice, that the Authority was investigating suspected contraventions arising from the failure of the Kenworth to brake when it ought to have done so, provided a sufficient indication to the recipient of the basis upon which the Authority was exercising its power under s 9. It also provided to the recipient a sufficient point of reference, by which to determine which of the documents and information, specified in the schedules, came within the ambit of the power relied on by the Authority to serve the notice under s 9 of the OHSA. It follows that the notices, served on the applicants, were valid.

In reaching those conclusions, I am fortified by the concession made by senior counsel for the applicants in argument before us. As mentioned, counsel accepted that, if the notices had stated that the information and documents were sought for the purposes of investigating suspected contraventions of s 21(1) of the OHSA, that would have been sufficient for the purposes of the principles that I have discussed. In that connection, it is important to note that s 21(1) is expressed in particularly broad terms, requiring that an employer must, ‘so far as is reasonably practicable’ provide and maintain for employees ‘a working environment that is safe and without risks to health’. In the context of this case, if the notices had also specified, that the Authority was investigating the suspected contravention of s 21(1), that would have added little, if anything, to the information conveyed to the recipient in the notice about the subject of the investigation undertaken by the Authority, or the nature of the suspected contravention that was the subject of the investigation.

Conclusion

For the foregoing reasons, the primary judge was correct to conclude that the notices, that are the subject of this application, were valid. As the matter before us was reasonably arguable, I would allow the applicants leave to appeal, but dismiss their appeal.

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Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2018] VSCA 165

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[2018] VSCA 165

29 June 2018