Australian Native Landscapes Pty Ltd v McDonald

[2013] NSWCA 395

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Australian Native Landscapes Pty Ltd v McDonald [2013] NSWCA 395

Hearing dates:

20 June 2013

Decision date:

27 November 2013

Before:

Bathurst CJ at [1]; Beazley P at [22]; Hoeben JA at [23]

Decision:

1. Application dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

STATUTORY INTERPRETATION - Pt 2 of Sch 18B to the Work Health and Safety Regulation 2011 - validity - savings and transitional provisions - whether regulation making power or transitional regulation making power in the Work Health and Safety Act 2011 enabled the making of regulations that conferred jurisdiction to determine prosecutions under the repealed Occupational Health and Safety Act 2000.

Legislation Cited:

Criminal Procedure Act 1986, s 246
Occupational Health and Safety Act 2000, ss 8, 105
Work Health and Safety Act 2011, s 229B, Pt 13, Sch 4
Work Health and Safety Regulation 2011, Sch 18B
Work Health Safety (Savings and Transitional) Regulation 2011

Cases Cited:

Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394
Ex parte McGuigan (1923) 40 WN (NSW) 129
Inspector Brock v Empire Waste Pty Ltd [2013] NSWDC 38
M & J Mitchell Pty Ltd v Director General of Department of Transport [2011] WASC 66
Morton v The Union Steamship Company of New Zealand (1951) 83 CLR 402
Peacock v Newtown Marrickville and General Building Co-Operative Building Society No 4 Ltd (1943) 67 CLR 25
Willocks v Anderson (1971) 124 CLR 293

Category:

Principal judgment

Parties:

Australian Native Landscapes Pty Ltd (Applicant)
Inspector Nathan McDonald (First respondent)
District Court of New South Wales (Second respondent)

Representation:

Counsel:
A R Moses SC and P Keyzer (Applicant)
J V Agius SC and B G Docking (First respondent)
Solicitors:
Berry Buddle Wilkins Lawyers (Applicant)
Legal Group, Safety, Return to Work and Support Division (First respondent)
Crown Solicitor's Office (Second respondent)

File Number(s):

2013/137589

Publication restriction:

No

 Decision under appeal 

Jurisdiction:

9101

File Number(s):

2012/293511

Judgment

1. BATHURST CJ: On 19 September 2012 the first respondent (the prosecutor) made an application under s 246 of the Criminal Procedure Act 1986 to commence proceedings against the applicant, alleging that between 17-18 March 2011 the applicant failed to ensure the health, safety and welfare at work of all of its employees, naming three employees in particular, contrary to s 8(1) of the Occupational Health and Safety Act 2000 (the OH&S Act).

1. On 20 September 2012 a judge of the District Court issued a summons ordering the applicant to appear to answer the charges.

1. Following the decision of Judge Curtis in Inspector Brock v Empire Waste Pty Ltd [2013] NSWDC 38 (the Empire Waste proceedings), the applicant filed a notice of motion in the District Court seeking orders that the summons of 20 September 2012 be quashed on the basis that the District Court had no jurisdiction to hear the proceedings. The motion was adjourned to enable the applicant to file a summons in this Court seeking similar relief.

1. By a summons filed on 3 May 2013 the applicant sought orders quashing the order and summons issued by the second respondent. The sole ground was that the regulations pursuant to which jurisdiction was said to be conferred (the regulations) were ultra vires.

1. The proceedings raise the same issue as raised by Ground 1 of the Empire Waste proceedings in this Court which were heard concurrently with this summons.

1. I have set out the relevant legislative material in my judgment in those proceedings: Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394.

The submissions of the parties

(a) The applicant

1. The submissions made by the applicant were broadly similar to those made by the applicants in the Empire Waste proceedings. It submitted that the decision of the High Court in Willocks v Anderson (1971) 124 CLR 293 and that of the Full Court in Ex parte McGuigan (1923) 40 WN (NSW) 129 were binding on this Court. It pointed to the fact that in deciding that a regulation making power could only be used to confer jurisdiction on a court if it was expressed in clear terms, the Full Court in Ex parte McGuigan supra did not refer to any particular court. At the hearing senior counsel for the applicant contented that what was said in Willocks supra was not confined to the particular constitutional position of the High Court.

1. The applicant submitted that the approach in these cases was consistent with the principle that regulations must not depart from the positive provisions expressed in the enabling Act. It submitted that if Parliament intends to specifically authorise the Executive to make regulations conferring jurisdiction on a court, they do so: Peacock v Newtown Marrickville and General Building Co-Operative Building Society No 4 Ltd (1943) 67 CLR 25. In that context the applicant submitted that the power to vest jurisdiction in a court cannot be spelt out of a general regulation making power or legislative provisions of a different type.

1. The applicant placed particular reliance upon the repeal of cl 7 of Sch 4 to the Work Health and Safety Act 2011 (the WHS Act) under which it contended that cls 4, 5 and 6 of the Work Health Safety (Savings and Transitional) Regulation 2011 (the initial regulations) were made. It submitted that the repeal of cl 7 of Sch 4 amounted to an expression of parliamentary intention that Pt 13 of the WHS Act which conferred jurisdiction on the District Court in respect of offences under the WHS Act was not to apply modified or otherwise to the proceedings under the OH&S Act. Senior counsel for the applicant submitted that the repeal of the original cl 7 of Sch 4 to the WHS Act indicated that the intention of Parliament to confer jurisdiction on the District Court in respect to contraventions of the OH&S Act had changed.

1. In those circumstances the applicant submitted that cl 3 of Pt 2 of Sch 18B to the Work Health and Safety Regulation 2011 which replaced the initial regulations was invalid for three reasons. First, the repeal of the original cl 7 of Sch 4 meant that there was no foundation for the regulations in issue. Second, reliance on either the savings and transitional or the general regulation making power was inconsistent with Willocks supra. Third, it was wrong to suggest, as stated by Curtis DCJ in the Empire Waste proceedings, that Parliament could not have foreseen the effect of such repeal as the WHS Act and regulations were subject to parliamentary oversight by the Legislation Review Committee of the NSW Parliament.

1. In submissions filed in reply the applicant contended that it was incorrect to confine Willocks supra and Ex parte McGuigan supra to cases where the regulation depended upon a necessary and convenient regulation making power, contending that such a clause is the widest possible regulation making power. The applicant submitted that savings and transitional provisions cannot widen the purpose of the Act and provide the means of carrying those purposes into effect in a manner that the Act does not contemplate. It submitted that the parliamentary intention can only be inferred from the words and content of the legislation and that it was impermissible to speculate as to what matters Parliament was aware of. The applicant submitted that this was what the prosecutor was asking the Court to do.

1. The applicant also submitted that the decision of McKechnie J in M & J Mitchell Pty Ltd v Director General of Department of Transport [2011] WASC 66 was incorrectly decided and should not be followed.

(b) The prosecutor

1. The prosecutor submitted that it was incorrect to suggest that the regulation purported to transfer jurisdiction to hear prosecutions under the repealed OH&S Act from the Industrial Court to the District Court. The prosecutor stated that the jurisdiction of the Industrial Court depended on s 105(1) of the OH&S Act which was repealed as from 1 January 2012.

1. The prosecutor contended that the power to make the regulations was not conferred by the regulation making power in the repealed cl 7(3) of Sch 4 to the WHS Act, but rather, was conferred by the savings and transitional regulation making power in cl 1 of Sch 4. He submitted that this approach was consistent with the proposed national model on which the WHS Act and regulations were based.

1. The prosecutor submitted that the following analysis supported validity. First, Parliament had decided to participate in and implement the national model. The scheme was to comprise the nationally agreed legislation with appropriate jurisdictional modifications, along with regulations based on the model regulations. The prosecutor emphasised that part of the scheme was that the District Court rather than the Industrial Court should be the primary court to deal with criminal work health and safety offences. It was ultimately determined that in relation to OH&S offences this could be done by the use of the savings and transitional regulation making power.

1. The prosecutor submitted that Willocks supra and Ex parte McGuigan supra were distinguishable as the regulations in those cases were based on a necessary and convenient regulation making power. He submitted that his submissions were not inconsistent with what was said by the High Court in Morton v The Union Steamship Company of New Zealand (1951) 83 CLR 402. He submitted that that case was also concerned with a necessary and convenient regulation making power and that having regard to the provisions of s 229B of the WHS Act, it could not be said that the regulation was departing from particular provisions of the WHS Act.

1. The prosecutor also emphasised the distinction drawn in Morton supra between an Act which lays down only a wide area of policy where the regulation making power might have a wide ambit, compared with an Act which deals specifically with the subject matter. He submitted that in the present case the legislature determined to deliberately leave it to regulations to spell out the detail of which courts would deal with alleged offences under the OH&S Act committed prior to its repeal.

1. The prosecutor submitted that where a provision is expressed in a form which requires expansion, the necessary and convenient power will provide the means for doing so, and further, in construing the validity of the regulation it is appropriate to consider the regulation making power as part of an overall scheme.

1. The prosecutor also submitted that the decision in Peacock supra was distinguishable because it concerned the question of the conferral of federal jurisdiction on State courts, not the introduction of a national model Act and model regulations. He submitted that it was apparent that Parliament intended to vest jurisdiction in the District Court from the legislative history and the nature of the scheme.

Consideration

1. As I indicated, the application raises the same issues as were raised in Ground 1 of the application in the Empire Waste proceedings. I have dealt with the submissions of the applicant in my consideration of that ground.

1. For the reasons given in the Empire Waste proceedings, I am of the opinion that the application should be dismissed with costs.

1. BEAZLEY P: I agree with Bathurst CJ.

1. HOEBEN JA: I agree with Bathurst CJ.

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Decision last updated: 27 November 2013