Australian Rail Tram and Bus Industry Union v Aurizon Operations Ltd

[2023] NSWSC 484

Supreme Court

New South Wales

Medium Neutral Citation:

Australian Rail Tram and Bus Industry Union v Aurizon Operations Ltd [2023] NSWSC 484

Hearing dates:

23 November 2022

Date of orders:

9 May 2023

Decision date:

09 May 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) The Union shall bring in Short Minutes of Order by 10.00am Thursday 11 May reflecting this judgment.

(2) Costs are reserved.

(3) Any agreement as to costs may be incorporated in Short Minutes of Order brought in under 1 above or by Short Minutes of Order forwarded at a later time to the Chambers of the Court but in any case, no later than 21 days after this judgment.

(4) Any dispute as to costs shall the determined upon a timetable agreed between the parties which timetable shall be forwarded to the Chambers of the Court within 21 days of this judgment.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Office of the National Rail Safety Regulator — judicial review — delegated decision by Chief Operating Officer to vary first defendant’s accreditation status permitting utilisation of crew cars in national freight operations —no consultation with Union — whether decision-maker committed jurisdictional error

ADMINISTRATIVE LAW — ground of review other than procedural fairness — delegation of power by Regulator — scope of instrument of delegation — whether delegation of power included making determinations of “significant change” to the scope and nature of an applicant’s operations even if no relevant ONRSR procedure existed — delegation of power only limited where a relevant ONRSR procedure determined such a “significant change”

STATUTORY INTERPRETATION — Rail Safety National Law 2012 (NSW) — s 99(3)(a)(iii) — whether decision-maker misapprehended nature of opinion required to be formed by misconstruing consultation requirement — whether “representing” in s 99(3)(a)(iii) means any person entitled to be represented by a union or requires actual membership of union — where a proper reading of the statutory text in light of context and purpose does not support a reading of “representing” to mean “entitlement to represent” – decision-maker applied s 99(3)(a)(iii) on its proper construction

STATUTORY INTERPRETATION — Rail Safety National Law 2012 (NSW) — s 99(3)(a)(i) –– whether consultation with “persons likely to be affected” in s 99(3)(a)(i) may be limited to persons carrying out railway operations, rather than including persons working at the railway premises or with rolling stock — where s 99(3)(a)(i) deems persons working at the railway premises or with rolling stock as “persons likely to be affected” — decision-maker misconstrued scope of consultation requirement in s 99(3)(a)(i)

ADMINISTRATIVE LAW – jurisdictional error – whether misconstruction of s 99(3)(a)(i) of Rail Safety National Law 2012 (NSW) amounted to jurisdictional error – where decision-maker acted as a “statutory tribunal” — where mandatory language of provision indicates Parliament did not intend to vest Regulator with jurisdiction to determine the scope of consultation requirements — where misconstruction of s 99(3)(a)(i) caused decision-maker to form opinion otherwise than in accordance with law – decision-maker’s misconstruction fell into jurisdictional error

ADMINISTRATIVE LAW — ground of review other than procedural fairness — findings of fact — whether decision-maker unreasonably or irrationally concluded plaintiff had no members amongst the affected rail safety workers — where decision-maker was aware of emails stating the plaintiff did have members that would be doing the work the subject of the variation application — decision-maker’s conclusion was based on findings or inferences of fact not unreasonable or irrational at law

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Interpretation Act 1987 (NSW)

Rail Safety National Law 2012 (NSW) ss 50, 65, 69, 99(3) 249(2)(c), Pt 3 Div 4, Pt 3 Div 6, Sch 2 cll 7, 8

Fair Work Act 2009 (Cth)

Fair Work (Registered Organisations) Act 2009 (Cth)

Supreme Court Act 1970 (NSW)

Rail Safety (Adoption of National Law) Act 2012 (NSW)

Rail Safety (National Law) South Australia Act 2012 (SA)

Rail Safety National Law National Regulations 2012 (NSW)

Rail Safety National Law National Regulations 2015 (WA)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Absolon v NSW Technical and Further Education Commission [1999] NSWCA 311

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42

Australian Tramway Employees’ Association v Prahran & Malvern Tramway Trust (Union Badge Case) (1913) 17 CLR 680; [1913] HCA 53

Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; [2011] FCAFC 14

Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd [2010] FCA 591; (2010) 268 ALR 514

ConnectEast Management Ltd v Commissioner of Taxation (Cth) (2009) 175 FCR 110; [2009] FCAFC 22

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Custom Credit Corporation Ltd v Commercial Tribunal of New South Wales [2000] ASC 155-041; [1999] NSWSC 1021

Deal v Father Pius Kodakkathanath (2016) 258 CLR 281; [2016] HCA 31

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55

Friends of Leadbeter’s Possum Inc v VicForests (2018) 260 FCR 1; [2018] FCA 178

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1

Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28

Minister for Immigration and Border Protection v MZZMX (2020) 280 FCR 1; [2020] FCAFC 175

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441

Plaintiff B9/2014 v Minister for Immigration and Border Protection (2014) 227 FCR 494; [2014] FCAFC 178

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; (2013) 67 MVR 322

R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42

Redland Shire Council v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641; [1974] HCA 4

Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55

Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62

Re Refugee Review Tribunal; Ex parteAala (2000) 204 CLR 82; [2000] HCA 57

R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71; [1957] HCA 19

Secretary of the Ministry of Health v Australian Paramedics Association (NSW) (2022) 320 IR 198; [2022] NSWSC 1431

Secretary of the Ministry of Health v The New South Wales Nurses and Midwives’ Association [2022] NSWSC 1178; (2022) 320 IR 249

Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3

Sydney Seaplanes Pty Ltd v Page (2021) 106

NSWLR 1; [2021] NSWCA 204

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Waugh v Kippen (1986) 160 CLR 156; [1986] HCA 12

Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355

Texts Cited:

M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters)

P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters)

Category:

Principal judgment

Parties:

Australian Rail Tram and Bus Industry Union (Plaintiff)
Aurizon Operations Limited (First Defendant)
National Rail Safety Regulator (Second Defendant)

Representation:

Counsel:
Mr P Boncardo (Plaintiff)
Dr D Roche with Mr M Pulsford (First Defendant)
Mr J Phillips SC with Mr S Thompson (Second Defendant)

Solicitors:
Australian Rail Tram and Bus Industry Union (Plaintiff)
Corrs Chambers Westgarth (First Defendant)
Sparke Helmore (Second Defendant)

File Number(s):

2022/00134679

JUDGMENT

1. By an Amended Summons filed 23 June 2022, the Australian Rail, Tram and Bus Industry Union (“the Union”) sought relief in relation to a decision given on 11 February 2022 by the second defendant, National Rail Safety Regulator (“the Regulator”) Ms Susan McCarrey, made through her delegate, Mr Peter Doggett, the Chief Operating Officer (“COO”) of the Office of the Regulator (“ONRSR”). The decision varied the accreditation of Aurizon Operations Limited (“Aurizon”) under the Rail Safety National Law 2012 (NSW) (“the National Law”) to permit the first defendant, Aurizon, to utilise crew cars to facilitate national freight operations from New South Wales to Western Australia.

2. The Union is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (the “FWRO Act”). The Union contended that Mr Doggett’s determination of Aurizon’s application for variation of its accreditation was invalid as he was not authorised by an Instrument of Delegation issued by the Regulator on 28 August 2020 (“the Instrument”). The Union also contended that the determination was affected by various errors of law which were jurisdictional in nature.

3. The Union sought a declaration pursuant to s 75 of the Supreme Court Act 1970 (NSW) that the granting of the variation was invalid and of no effect. Further, or in the alternative, the Union sought an order in the nature of certiorari quashing the decision of the Regulator. In oral submissions, Mr P Boncardo, counsel for the plaintiff, abandoned the declaratory relief sought.

4. Aurizon submitted that the Amended Summons should be dismissed with costs because Mr Doggett, as the Regulator’s delegate, had authority under s 69 of the National Law to determine Aurizon’s application to vary its accreditation. Aurizon also contended that Mr Doggett’s decision was not affected by jurisdictional error, and in particular, that he was lawfully satisfied that Aurizon had met the consultation requirements in the National Law in relation to the proposed variation of Aurizon’s accreditation.

5. The Regulator submitted there was no error of law or jurisdictional error established by the Union and, in the alternative, submitted that any error was not material error within the meaning of Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 (“Hossain”).

The National Law

6. The National Law was the product of a process instigated in June 2009 by the Council of Australian Governments and the Australian Transport Council to establish a single national regulator for heavy vehicles, rail safety and marine safety, as well as a national rail safety investigator. That process, which was undertaken by the National Transport Commission, culminated in uniform national legislation being devised by the Commonwealth, States and Territories for a rail safety regulation regime. South Australia was the jurisdiction chosen to host the national regulator envisaged by the National Law and its Parliament passed the Rail Safety (National Law) South Australia Act 2012 (SA). The New South Wales Parliament adopted the National Law by the Rail Safety (Adoption of National Law) Act 2012 (NSW).

7. Section 3(1) of the National Law details that its main purpose is to provide for safe railway operations in Australia. The objects of the National Law are detailed in s 3(2), which provides:

3 Purpose, objects and guiding principles of Law

(1) …

(2) The objects of this Law are—

(a) to establish the Office of the National Rail Safety Regulator (the ONRSR); and

(b) to make provision for the appointment, functions and powers of the National Rail Safety Regulator (the Regulator); and

(c) to make provision for a national system of rail safety, including by providing a scheme for national accreditation of rail transport operators in respect of railway operations; and

(d) to provide for the effective management of safety risks associated with railway operations; and

(e) to provide for the safe carrying out of railway operations; and

(f) to provide for continuous improvement of the safe carrying out of railway operations; and

(g) to make special provision for the control of particular risks arising from railway operations; and

(h) to promote public confidence in the safety of transport of persons or freight by rail; and

(i) to promote the provision of advice, information, education and training for safe railway operations; and

(j) to promote the effective involvement of relevant stakeholders, through consultation and cooperation, in the provision of safe railway operations.

Definitions

8. Section 4 of the National Law contains various definitions of which the following are important in the present context.

9. The ONRSR is defined in s 4 to mean “the Office of the National Rail Safety Regulator under Pt 2 Div 1 of the National Law. Pt 2 Div 1 deals with the establishment, functions, objectives and powers of ONRSR. By ss 12(1)-(2) and 13(1), ONRSR is established as a body corporate and accorded functions of, relevantly, administering the accreditation regime under the National Law and monitoring, investigating and enforcing compliance with the National Law.

10. Regulator is defined to mean the National Rail Safety Regulator, or an Acting National Rail Safety Regulator appointed under Pt 2 Div 2.

11. Section 17(1) of Pt 2 Div 2 of the National Law provides for the appointment of the Regulator, who is appointed because of their high level of expertise in one or more areas of ONRSR’s functions. The functions of the Regulator are detailed in s 19(1) and include (a) being the chief executive of ONRSR and (b) exercising the functions of ONRSR conferred on the Regulator under the National Law or an Act. Section 37(1) of the National Law provides that the Regulator is the chief executive of ONRSR and responsible for its day-to-day management and for the carrying out of functions conferred on the chief executive under the National Law, an Act or by ONRSR. Section 37(2) requires the chief executive to act consistently with ONRSR policies.

12. A ‘rail transport operator’ is defined by s 4 to mean “(a) a rail infrastructure manager; or (b) a rolling stock operator; or (c) a person who is both a rail infrastructure manager and rolling stock operator”. Aurizon is a ‘rail transport operator’ and a ‘rail infrastructure manager’ for the purposes of the National Law. ‘Rolling stock’ is defined in s 4 to mean “a vehicle that operates on or uses a railway, and includes [amongst other things] a locomotive, carriage and rail car”. A ‘rolling stock operator’ is a person who has effective control and management of the operation or movement of rolling stock on rail infrastructure for a railway. ‘Rail infrastructure’ is defined by s 4 to mean “the facilities that are necessary to enable a railway to operate safely” and includes railway tracks and associated track structures, associated buildings, workshops, depots and yards, as well as plant, machinery and equipment. A ‘rail infrastructure manager’ is defined as below:

Rail infrastructure manager, in relation to rail infrastructure of a railway, means the person who has effective control and management of the rail infrastructure, whether or not the person—

(a) owns the rail infrastructure; or

(b) has a statutory or contractual right to use the rail infrastructure or to control, or provide, access to it;

13. Section 4 defines ‘railway operations’ to mean, relevantly, the operation or movement of rolling stock on a railway. ‘Railway premises’ are defined to mean land where rail infrastructure is located, workshops or maintenance depots used in connection with the carrying out of railway operations, and premises used in connection with the carrying out of railway operations as well as rolling stock.

14. ‘Union’ is defined to mean an employee organisation such as the plaintiff that is registered or taken to be registered under the FWRO Act or an association of employees or contractors (or both) that is registered or recognised as such an association under State or Territory industrial law.

15. ‘Rail safety work’ is defined in s 8(1) to mean, amongst other things, the driving or despatching of rolling stock or any other activity capable of controlling or affecting the movement of rolling stock; the constructing, maintaining, repairing, modifying, monitoring, inspecting or testing of rolling stock; and work involving the development, management or monitoring of safe working systems for railways. Employees who perform work on the ‘crew cars’ the subject of the variation application, including those who perform maintenance work on crew cars, are ‘rail safety workers’ for the purposes of s 8(1).

Delegations

16. Clause 29 of Sch 2 to the National Law concerns the delegation of functions authorised by the National Law. Clause 29(2)(a) provides that a delegation may be general or limited. Clause 29(6) deems a delegated function purportedly exercised by a delegate to have been properly exercised unless the contrary is proved. A function properly exercised by a delegate is taken to have been exercised by the delegator pursuant to cl 29(7) of Schedule 2.

17. Section 45 of the National Law deals with delegation in the following terms:

(1) ONRSR may delegate to a body or person (including a person for the time being holding or acting in a specified office or position) a function or power of ONRSR under this Law or an Act.

(2) The Regulator may delegate to a body or person (including a person for the time being holding or acting in a specified office or position) a function or power of the Regulator under this Law or an Act.

(3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.

The Regulation of Rail Safety

Accreditation

18. Part 3 of the National Law concerns the regulation of rail safety. Division 3 establishes rail safety duties. Subdivision 1 concerns principles in that respect and therein s 50 provides as follows:

50 Principles of shared responsibility, accountability, integrated risk management, etc

(1) Rail safety is the shared responsibility of—

(a) rail transport operators; and

(b) rail safety workers; and

(c) other persons who—

(i) design, commission, construct, manufacture, supply, install, erect, maintain, repair, modify or decommission rail infrastructure or rolling stock; or

(ii) supply rail infrastructure operations or rolling stock operations to rail operators; or

(iii) in relation to the transport of freight by railway—load or unload freight on or from rolling stock; and

(d) the Regulator; and

(e) ONRSR; and

(f) the public.

(2) The level and nature of responsibility that a person referred to in subsection (1), or falling within a class of person referred to in that subsection, has for rail safety is dependent on the nature of the risk to rail safety that the person creates from the carrying out of an activity (or the making of a decision) and the capacity that person has to control, eliminate or mitigate those risks.

(3) The persons and classes of persons referred to in subsection (1) should—

(a) participate in or be able to participate in; and

(b) be consulted on; and

(c) be involved in the formulation and implementation of,

measures to manage risks to safety associated with railway operations.

(4) Managing risks associated with the carrying out of rail infrastructure operations or rolling stock operations is the responsibility of the person best able to control those risks.

(5) If approaches to managing risks associated with any particular railway have potential impacts on any other railway or a railway network of which the railway is a part, the best practicable rail safety outcome should be sought.

19. The duties of various persons are set out in ss 52-56. A ‘rail transport operator’ has a non-transferrable duty under s 52(1) to ensure, so far as is reasonably practicable, the safety of its railway operations. The content of that duty is elaborated, non-exhaustively, by s 52(2)-(4). Relevantly, s 52(2)(a) requires a rail transport operator to ensure, so far as reasonably practicable, that safe systems for the carrying out of its railway operations are developed and implemented. Rail safety workers, when carrying out rail safety work, have a duty under s 56(1) to: (a) take reasonable care of their own safety (b) take care that their acts or omissions do not adversely affect the safety of other persons and (c) comply, so far as they are reasonably able, with reasonable instructions given by the rail transport operator to allow the operator to comply with the National Law.

20. Failures by duty holders to comply with their duties are the subject of criminal sanctions in the circumstances detailed in ss 58-60.

21. Division 4 of Pt 3 concerns accreditation of rail transport officers in respect of railway operations. The purpose of accreditation is stated in s 61 as follows:

61   Purpose of accreditation

The purpose of accreditation of a rail transport operator in respect of railway operations is to attest that the rail transport operator has demonstrated to the Regulator the competence and capacity to manage risks to safety associated with those railway operations.

22. Section 62(1)(a) proscribes a person carrying out railway operations unless that person is a rail transport operator accredited under Pt 3, or the person has obtained an exemption from compliance with s 62.

23. Accreditation may be granted for the purposes detailed in s 63, including: for the carrying out of railway operations for particular parts of a railway; for services or aspects of railway operations specified in the accreditation; or for other activities relating to railway operations considered appropriate by the Regulator and specified in the accreditation.

24. Applications for accreditation are dealt with by s 64. An application is, pursuant to s 64(1), to be made to the Regulator in respect of a railway operation carried out or proposed to be carried out by the operator. The content of an application for accreditation is dealt with in s 64(2). Such an application must be in the manner and form prescribed by the Regulator and is to include, relevantly, a description of the safety management system relating to the railway operations and contain “the prescribed information”. Section 64(3) enables the Regulator to require a rail transport operator who has applied for accreditation to supply further information to the Regulator or verify matters by statutory declaration.

25. Section 65 precludes the Regulator from granting an accreditation unless the Regulator is satisfied that the applicant has demonstrated certain matters. Section 65(c)(iii) provides as follows:

65   What applicant must demonstrate

The Regulator must not grant accreditation to an applicant unless satisfied that the applicant has demonstrated—

…

(c) that the applicant—

...

(iii) has met the consultation requirements set out in Division 6 in relation to the applicant’s safety management system…

26. If the Regulator is satisfied of the matters dealt with in s 65, it is required by s 67(1)(a) to notify the applicant that the accreditation has been granted with or without conditions or restrictions. If the Regulator is not so satisfied, the Regulator is required by s 67(1)(b) to notify the applicant that the application has been refused.

27. Notification of accreditation is required to specify, pursuant to s 67(4)(b)(ii), the scope and nature of the railway operations in respect of which accreditation is granted and the manner in which those railway operations are to be carried out.

28. Subdivision 3 of Div 4 of Pt 3 deals with variations to accreditation.

29. Section 68(1) permits an accredited person to, at any time, apply to the Regulator for variation of the person’s accreditation. Section 68(2) requires applications for variation to be made if, relevantly, the applicant proposes to vary the scope and nature of the railway operations in respect of which the applicant is accredited. Aurizon’s application for variation was seemingly made in accordance with this obligation.

30. An application for variation is required by s 68(3) to be made in the manner and form approved by the Regulator and, relevantly, must specify the details of the variation being sought and contain “the prescribed information”. The “prescribed information” is detailed in Reg 11 of the Rail Safety National Law National Regulations 2012 (NSW) (“Regulations”) to include, relevantly, the details of the scope and nature of the proposed variation, details of the changes that will be made to the applicant’s safety management system if the proposed variation occurs. Regulation 11(d), as follows, requires an application for variation to contain:

(d) details of any consultation that has occurred with parties who might be affected by the proposed variation, including—

(i) who was consulted; and

(ii) when and how the consultation occurred; and

(iii) the result of the consultation.

31. Section 69 of the National Law deals with the determination of variation applications. Section 69(1)−(2) is expressed in the following terms:

69 Determination of application for variation

(1) Subject to this section, the Regulator must, within the relevant period—

(a) if the Regulator is satisfied as to the matters referred to in sections 65 and 66 (so far as they are applicable to the proposed variation)—notify the applicant that the accreditation has been varied, with or without conditions or restrictions; or

(b) if the Regulator is not so satisfied—notify the applicant that the application has been refused.

(2) Notification under this section—

(a) must be in writing and given to the applicant; and

(b) if the accreditation has been varied, must specify—

(i) the prescribed details of the applicant; and

(ii) the variation to the accreditation so far as it applies to the scope and nature of the railway operations, or the manner in which they are to be carried out; and

(iii) any conditions and restrictions imposed by the Regulator on the accreditation as varied; and

(iv) any other prescribed information; and

(c) if a condition or restriction has been imposed on the accreditation as varied, must include—

(i) the reasons for imposing the condition or restriction; and

(ii) information about the right of review under Part 7; and

(d) if the application to vary an accreditation has been refused, must include—

(i) the reasons for the decision to refuse to grant the application; and

(ii) information about the right of review under Part 7; and

(e) if the relevant period in relation to an application has been extended, must include information about the right of review under Part 7.

Safety Management Systems

32. Division 6 of Pt 3 deals with safety management systems. Section 99(1) requires a rail transport operator to have “a safety management system for railway operations in respect of which the operator is required to be accredited” that is in a form approved by the Regulator; provides for systems and procedures to comply with risk management obligations under the National Law; identifies any risks to safety; provides for the systematic assessment of risks; specifies controls to manage risks and includes procedures to monitor and revise the adequacy of those controls. Other matters which must be included in a safety management system are detailed in s 99(2).

33. Section 99(3) is of significance in the present matter and is in the following terms:

(3) Before establishing a safety management system in relation to railway operations in respect of which a rail transport operator is required to be accredited or reviewing or varying any such safety management system, the operator must, so far as is reasonably practicable—

(a) consult with—

(i) persons likely to be affected by the safety management system or its review or variation, being persons who carry out those railway operations or work on or at the operator’s railway premises or with the operator’s rolling stock; and

(ii) health and safety representatives (within the meaning of the occupational health and safety legislation) representing any of the persons referred to in subparagraph (i); and

(iii) any union representing any of the persons referred to in subparagraph (i); and

(iv) any other rail transport operator with whom the first mentioned operator is required to enter into an interface agreement relating to risks to safety of railway operations carried out by or on behalf of either of them; and

(v) the public, as appropriate; and

(b) provide the persons consulted with a reasonable opportunity to make submissions on the proposed safety management system; and

(c) advise those persons in a timely manner of the outcome of the consultation process.

34. Section 101(1) requires a rail transport operator to implement its safety management system. Section 101(2) requires that a rail transport operator must not, without reasonable excuse, fail to comply with its safety management system for its railway operations.

Factual Background

35. Aurizon is an accredited Rail Transport Operator under the National Law, being accredited as both a ‘rail infrastructure manager’ and a ‘rolling stock operator’. Aurizon’s business provides freight services involving the transportation and delivery of mining, metal, industrial and agricultural freight. Aurizon first obtained accreditation to conduct specified railway operations under the National Law on 20 January 2013.

36. On 28 August 2020, Susan Jane McCarrey, the Regulator appointed pursuant to s 17 of the National Law, executed the Instrument, being an instrument of delegation. The instrument had the effect of revoking all previous instruments of delegation and delegated various powers and functions to the holder of the office of Chief Operating Officer (“COO”) (being Mr Doggett), subject to the following conditions:

1. References to the holder of an office include a reference to the person for the time being acting in the position.

2. Where the office of Chief Operating Officer is abolished or renamed, the reference to that office is to be taken to be a reference to any successive office where the holder exercises the same functions as the position abolished or renamed.

3. Unless specified in Column 3 of the Schedule, the delegate is not authorised to sub-delegate.

4. The delegation for each of the powers listed in Column 1 is subject to a condition that that delegate must exercise the power in a manner that is consistent with the policies and procedures issued by the Office of the National Rail Safety Regulator.

5. The delegation for each of the powers listed in Column 1 is subject to the conditions, if any, listed in Column 4 of the Schedule.

6. A reference to a section in Column 1 is a reference to both a section in the Rail Safety National Law (WA) and a reference to a section in the Rail Safety National Law (WA), and a reference to a regulation in Column 1 is a reference to both a regulation in the Rail Safety National Law National Regulations 2012 and a regulation in the Rail Safety National Law National Regulations (WA) 2015.

7. The delegation may be revoked or varied at any time, for any reason, by a further instrument in writing.”

37. Relevantly, the “nature” of Aurizon’s operations was identified in the accreditation as the “[p]rovision of operating yards and sidings”, “[p]rovision of freight services” and “[p]rovision of rail infrastructure maintenance”.

The Variation Application

38. On 29 September 2021, pursuant to s 68(1) of the National Law, Aurizon applied to the Regulator for variation of its accreditation. Aurizon’s Application for variation of accreditation (“variation application”), sought to have “crew cars added to Schedule 2, Item 2” of Aurizon’s accreditation. This was identified as being sought “to support the delivery of a new service between east coast and west coast in early 2022”. Aurizon indicated in its application that it had followed its change management process. In response to a question in the application about any changes or enhancements made to Aurizon’s safety management system (“SMS”), Aurizon advised:

“Initial assessment has identified that rolling stock will be managed in accordance with existing Safety Management System content. This will be subject to further review as more detailed assessments are undertaken.”

39. The ‘crew cars’ referred to are otherwise known as ‘Relay Vans’. Relay Vans are passenger rail cars outfitted with sleeping, cooking and other amenities to enable train crew to rest and take breaks while remaining on the train. The train crew can remain on the train when engaged in periods of rest or whilst taking breaks from work, thereby obviating the need for Aurizon to arrange accommodation for crew members off the train. The change in procedure enabled Aurizon to operate the train continuously in contrast to prior operating limitations arising from the lack of accommodation.

40. In its application, Aurizon described rolling stock changes relevant to or affected by the proposed variation as involving “leasing a CDBY crew car from CFCLA”. A data sheet in respect to the ‘CDBY crew car’ was appended. The data sheet described the crew cars as ‘wagons’, provided that the ‘wagon type’ was crew accommodation and detailed that the capacity of the crew cars was 9 tonnes and maximum speed was 115km/h.

41. Section 6 of the application concerned change management for amendments to Aurizon’s SMS. In answer to the question, “Have you followed your organisations change management process?” and under the heading ‘Consultation/change management process (how)’, Aurizon said:

In development of the design of the new service with customers, Aurizon is in the process of drafting it’s [sic] Change Management and Implementation Plan.

42. In that same section, Aurizon recorded that consultation had not been undertaken with stakeholders but would be “undertaken once stakeholders are identified in risk assessments and the development of change plans”.

43. Section 7 concerned ‘Safety Management’. In response to a question requiring Aurizon to advise of any changes or enhancements made to its SMS, including a description of measures to be undertaken to manage newly identified risks, Aurizon detailed that:

Initial assessment has identified that rolling stock will be managed in accordance with existing Safety Management content. This will be subject to further review as more detailed assessments are undertaken.

Correspondence between ONRSR and Aurizon

44. On 27 October 2021, a meeting occurred between Aurizon and ONRSR representatives. On 1 November 2021, Mr Michael McDougall (the ONRSR officer with day-to-day carriage of Aurizon’s variation application) requested additional information which included “a registered and approved implementation plan” and “SMS documents” which sufficiently covered design standards of rolling stock “to address human factors for crew cars”.

45. On 18 November 2021, Mr Brendan James (a representative for Aurizon) produced a document entitled “Introduction of Leased Rail First Crew Cars”. The document described its purpose as detailing the implementation plan of lease crew cars from “Rail First” to support “East-West train operations”. The document stated that it applied to both “CDAY and CDBY class wagons, with both classes being leased under a dry lease agreement meaning that Aurizon will be responsible and accountable for all preventative and corrective maintenance tasks (including provisioning).”

46. Under the heading “Execution”, the document stated:

On-going maintenance will be the responsib[ility] of Aurizon, specifically the Bulk NSW team who will partner with a third-party maintenance provider for work execution.

47. On 26 November 2021, the aforementioned implementation plan (“Introduction of Leased Rail First Crew Cars”) was lodged together with other documents with the ONRSR in support of the variation application.

48. On 2 December 2021, Mr McDougall emailed Mr James requesting information specifically about consultation. The email referred to par 5.1 of the “Introduction of Leased Rail First Crew Cars” document.

49. On 16 December 2021, Aurizon replied to the email and stated that consultation had been “pushed back”.

50. The crew operating Aurizon’s proposed route from Broken Hill, New South Wales, to Kwinana, Western Australia, which would incorporate the crew cars was to be supplied through a labour hire arrangement with Trojan Recruitment Group Pty Ltd (“Trojan”).

51. On 21 January 2022, Aurizon lodged with the ONRSR various documents, which included “evidence of consultation” on 17 January 2022 with prospective train drivers to operate Aurizon’s proposed route. This consultation was in the form of a presentation to 10 employees of Trojan Rail (a subsidiary of Trojan).

52. It may be noted that, in Mr Doggett’s subsequent Reasons for Decision, he referred to there being no evidence with respect to consultation on 29 September 2021 and insufficient evidence of consultation as at 26 November 2021. He then referred, as mentioned above, to ONRSR’s request on 2 December 2021 for information about any consultations. Mr Doggett noted that ONRSR was informed on 16 December 2022 that Aurizon had “pushed back consultation and on 21 January 2022 had filed documents as evidence of consultation. Mr Doggett referred to the meeting on 17 January 2022 as being attended by “prospective train drivers who were to operate Aurizon’s new national rail route from Newcastle in NSW to Cynara in Western Australia, via Broken Hill, if ONRSR granted Aurizon’s application for variation”.

53. The evidence given by Mr Stephen Wright, an organiser of the Union, was that at least one of the Trojan Rail employees who attended the meeting on 17 January 2022 was a member of the Union.

54. On 21 January 2022, Mr James emailed Mr McDougall a ‘summary of the briefing session’ conducted with train crew earlier that week. Mr James detailed that crew were taken through draft operating procedures and design specifications of the crew car. He said that crew had provided some feedback that would be adopted and a follow up session in a few weeks’ time would occur where crew would be able to physically inspect the crew car.

55. That same day, Mr McDougall prepared an internal draft decision brief. Mr McDougall detailed the background to the variation application as the following:

1. Aurizon was in the process of commencing a new service to transport bulk goods from New South Wales to Western Australia which would utilise crew cars and thus enable train crew to have rest breaks.

2. The route was “new” and used other rolling stock (freight wagons) which were of a type not previously used;

3. Aurizon would initially lease the crew cars. Maintenance requirements and associated procedures in relation to the crew cars had been handed over to Aurizon to enable it to have management and control of the rolling stock.

56. Under the heading ‘Key Considerations’, Mr McDougall provided an analysis with respect to s 65 of the National Law. Against the analysis for s 65(c)(iii) was the following:

[Aurizon] has provided evidence to demonstrate consultation with all parties involved including:

> Consultation with the train crew who will use the crew car. Note [Aurizon] advised all train crew will be provided by labour hire service and none of the workers operating this service belong to a union.

> [Aurizon] has consulted with the RTBU NSW on the introduction of the crew car and has committed to consultation with unions should affected workers be members of those unions in the future.

> Consultation with ONRSR throughout the assessment process

> Consultation with Rail First (crew car leasing company)

> Consultation with internal [Aurizon] technical departments

> Consultation with external rail infrastructure managers which [Aurizon] will be operating the crew cars on.

57. In early 2022, the Union learned about Aurizon’s proposal to introduce crew cars and contacted Mr McDougall via Mr Wright. Mr McDougall confirmed that Aurizon had applied to vary its accreditation to permit it to run a ‘relay van’.

58. On 2 February 2022, Mr Warren Sallis (Rail Operations Manager, Aurizon) spoke with Mr Wright about the proposed introduction of crew cars to Aurizon and the Union’s desire to be consulted. Mr Wright indicated that the Union was concerned that it had not been consulted on the introduction of the crew cars.

59. At a meeting with Mr Greg Wagner (Director, Operations, ONRSR), to discuss the draft decision brief, Mr Wagner provided Mr Doggett with a verbal briefing with respect to Aurizon’s variation application. Mr Doggett tasked Mr Wagner “out of an abundance of caution to seek further written evidence in relation to consultation… to confirm the accuracy of the proposition in the Decision Brief that there was no need for Aurizon to consult the [Union] in relation to the variation”.

60. In early 2022, Mr Wright telephoned Mr Sallis about the introduction of crew cars and Aurizon’s variation application. Mr Sallis emailed Mr Wright on 8 February 2022 at 12:54pm detailing, relevantly, that:

1. Aurizon was planning to commence operations soon, involving ‘occupancy of a crew car’;

2. the crew car would be used by workers from Trojan who were under a labour hire agreement, had been consulted on ‘the Procedure for use of the crew car’ and had inspected the rolling stock. These workers had provided feedback that had been incorporated into operating procedures;

3. Aurizon was not aware that any workers impacted were members of the Union but would commit to consulting the Union before its members were involved in use of a crew car.

4. Aurizon has been working cooperatively with ONRSR to finalise the variation to its accreditation to include crew cars as an item of rolling stock permissible for use under its accredited operations.

61. Mr Sallis forwarded his email to Mr Wagner and Mr McDougall at 1:29pm that day.

62. Mr Wright responded to Mr Sallis’ email at 2:54pm on 8 February 2022, indicating that he was still requesting consultation and a copy of the procedure and information on changes to Aurizon’s SMS. Mr Wright said that the Union did have members that “will be doing this working NOW” and understood that they were “Trojan employees not Aurizon”. Mr Wright requested a time to speak to Mr Sallis.

63. On 9 February, Mr Sallis forwarded both his email and Mr Wright’s response to Mr James at 10:50am and Mr Wagner at 1:50pm.

64. On 9 February 2022, Aurizon wrote to Mr Wagner and stated the following:

We can confirm… that we have checked with Trojan and the workers currently engaged re the membership [Mr Wright] references, and we believe that to be incorrect. Trojan advised that a couple of workers have resigned from the [Union] in recent times.

65. On 9 February 2022, the Decision Brief was finalised and submitted to Mr Doggett for review and decision. The Decision Brief recorded that Aurizon “have developed a user requirement specification to identify in their SMS, the human factor requirements for crew cars”. Analysing the variation application against the criteria in s 65(c)(iii) of the National Law, the Decision Brief stated (amending the earlier reference to compliance with s 65(c)(iii)):

[Aurizon] has provided evidence to demonstrate consultation with all parties involved including:

- Consultation with the train crew who will use the crew car. Note [Aurizon] advised all train crew will be provided by labour hire service and none of the workers operating this service belong to a union.

- [Aurizon] has consulted with the [Union] on the introduction of the crew car and has committed to consultation with unions should affected workers be members of those unions in the future.

…

66. Mr Doggett made the following observations regarding the Decision Brief:

My purpose in doing so [tasking Mr Wagner to seek further written evidence in relation to consultation] was to confirm the accuracy of the proposition in the Decision Brief that there was no need for Aurizon to consult the ‘RTBU NSW’ in relation to the variation.

I was otherwise satisfied that Aurizon had complied with its consultation requirements in section 99(3). For example, in regard to health and safety representatives mentioned in section 99(3)(a)(ii) RSNL NSW, I was aware that Aurizon had not commenced its new national rail route from Newcastle to Kwinana and could not lawfully do so until a variation of its accreditation had been granted. Therefore:

Health and safety representatives could not have been elected in accordance with the Work Health and Safety Act 2011 (NSW);

Such representatives could not have existed before 11 February 2021 because there was no “workplace” within the meaning of the provisions for health and safety representatives in that Act.

As mentioned, on 8 February 2022, Aurizon lodged its email to the RTBU of 8 February 2022, showing that the RTBU had not been consulted regarding the change because none of the affected rail safety workers were members of the RTBU. I had no reason to doubt Aurizon’s credibility in connection with this evidence, or at all.

I noted Aurizon had made a commitment to the RTBU in the email of 8 February 2022 to ensure that should anything change; they would consult with the RTBU. This is consistent with their obligations under the RSNL NSW and the Work Health and Safety Act 2011 (NSW) in any event. Overall, I was satisfied that Aurizon had complied with the consultation requirements in section 99(3).

67. Aurizon submitted it was apparent that Mr Doggett proceeded on the basis that the first point in the above excerpt (at [66]) was correct (i.e., consultation with train crew had occurred), but did not rely on the second point (i.e., he did not proceed on the basis that Aurizon had consulted with the Union).

68. The Union submitted that the assertion that Aurizon had consulted with it was erroneous. No such consultation had occurred, nor did it occur prior to Aurizon’s variation application being approved on 11 February 2022 by Mr Doggett.

69. The Union’s submission in this respect is correct insofar as it refers to the first version of the brief and no consultation occurring with the Union. However, Aurizon is correct to submit that Mr Doggett did not proceed on the basis that the second assertion was correct. Rather, he found that the Union had not been consulted regarding the change because “none of the affected Rail Safety workers were members of the [Union].”

70. As recorded in the Notice of Accreditation dated 11 February 2022 and pursuant to s 69(1)(a) of the National Law, Mr Doggett varied Aurizon’s accreditation by inserting “(10) Crew Cars” into item 2 of Sch 2 of Aurizon’s accreditation. This, not the decision brief, is the decision under review.

Decision of Mr Doggett

71. On 2 June 2022, the Regulator filed Mr Doggett’s Statement of Reasons. I have variously referred to parts of those reasons earlier and will not repeat them here, but rather refer to any additional elements that attracted attention below.

72. Mr Doggett referred to various findings made by him underpinning the decision to vary Aurizon’s accreditation as follows:

a. Aurizon was an applicant who could validly apply for a variation of accreditation under section 68(2)(a) [National Law] to vary the scope and nature of the railway operations in respect of which Aurizon was accredited.

b.    No change was required to the kind of railway operations to be undertaken, but rather just the type of rolling stock used (by adding crew cars only).

c.    Aurizon had a lease arrangement for the use of the crew cars.

d.    Aurizon had the competence and capacity to manage the risks to safety associated with the variation.

e. Aurizon had met the consultation requirements set out in Part 3, Division 6 [National Law] in relation to those persons who were likely to be affected by the variation of the safety management system in relation to the crew cars.

f.    Aurizon had complied with the requirements prescribed by the [Regulations].

73. Under the heading “Further Reasons”, being reasons in addition to those earlier referred to with respect to the “Decision”, Mr Doggett stated at [42]-[48]:

42.    Since ONRSR commenced on 20 January 2013, I have developed my own extensive knowledge of most of the operations accredited by ONRSR, including Aurizon’s operations. Aurizon is a mature and experienced RTO.

43.    This variation of Aurizon’s accreditation on 11 February 2022 was effectively a minor change in their overall operations. The scope and utilisation of the crew cars was limited. I understood that their intention was only to use them for one service per week, and only between Broken Hill and Port Augusta. I was mindful to ensure that ONRSR’s processing of such applications are proportionate to the change proposed by the operator, in conjunction with the permissions they already have.

44.    I was aware before 11 February 2022 that crew cars are used extensively across Queensland, South Australia, the Northern Territory and Western Australia, where suitable reasonable alternatives are not practical.

45.    Mr Wagner meets with Aurizon once a month. One matter I took into account on 11 February 2022 was that if he had any reservations as to the nature of the use of crew cars, or any consideration that Aurizon had not met the requirements of the [National Law], Mr Wagner would not have endorsed the Decision Brief dated 21 January 2022.

46.    On 11 February 2022, I relied primarily on my own consideration of the evidence and state of mind, as well as the finalised Decision Brief and Mr Wagner’s experience and recommendations.

47.    In my briefing with Mr Wagner, an overview on the anticipated post implementation planning that had been done was provided. This would include several inspections utilising ONRSR’s technical experts to look at how Aurizon was managing the operation of the crew car. This is standard practice for ONRSR’s approach to any notification of change or variation of accreditation.

48    To date there has been no evidence of which ONRSR is aware that there are indeed members of the RTBU or any other union that are employed by Trojan who would be affected rail safety workers, or that any health and safety representatives have been elected.

74. The first defendant, Aurizon, submitted:

Having regard to the Decision Brief and the Statement of Reasons, it is self-evident… that the persons considered likely to be affected were the crew on the prospective new national route. Mr Doggett explained that he had ‘no reason to doubt Aurizon’s credibility in connection’ with the evidence that none of the affected rail safety workers (who would be operating the crew car) were members of the Union. (citations omitted)

75. The Union, submitted:

Mr Doggett’s apparent level of comfort with Aurizon’s representation that members of the train crew were not members of the plaintiff… was without rational or logical foundation in light of the unambiguous terms of Mr Wright’s 8 February 2022 email. Mr Doggett’s focus on union membership amongst the train crew reinforces that Mr Doggett’s sole focus was on consultation occurring between Aurizon and members of the train crew only. Mr Doggett failed to give consideration to the ambit of persons likely to be affected by the variation to the safety management system who [work] with Aurizon’s rolling stock as required by s 99(3)(a)(i). The altered accreditation to which the safety management system was to apply involved the addition of new rolling stock… which workers would perform maintenance on… (citations omitted)

76. These issues will be considered further in the discussion of the various grounds below.

Grounds of the Amended Summons

77. By the Amended Summons, the Union abandoned paras 2 and 4 of the original grounds. In oral submissions, Mr Boncardo also abandoned grounds 1, 1D and 3 of the Amended Summons. There were then left seven grounds in support of the relief sought in the Amended Summons. Those grounds are as follows:

A1 Peter Doggett was not conferred with delegated authority under s 45(2) of the Rail Safety National Law (NSW) and/or clause 29(2) of Schedule 1 to the Rail Safety National Law (NSW) to make the decision, as his delegated authority in relation to applications under s 69 of the Rail Safety National Law (NSW) did not extend to determinations that result in a significant change to the scope of the operations of the applicant, which applications were to be determined by the Regulator, and the change proposed by the application to the scope of operations of the first defendant was significant.

…

1A   Peter Doggett made an error of law on the face of the record and/or committed jurisdictional error by concluding that Aurizon Operations Limited had engaged in consultation with persons likely to be affected by the variation of the safety management system before establishing the safety management system in circumstances where there was no evidence such consultation had occurred prior to the establishment of the safety management system.

1B Peter Doggett made an error of law on the face of the record and/or committed jurisdictional error by misapprehending the nature of the opinion he was required to form under ss 65(c)(iii) and 69(1)(a) of the Rail Safety National Law (NSW) by misconstruing the requirement under s 99(3)(a)(i) of the Rail Safety National Law (NSW) as limited to consultation with persons who carry out railway operations, rather than as extending to persons who work on or at the operator’s railway premises or with the operator’s rolling stock.

1C   Further and in the alternat[ive] to ground 1B above, Peter Doggett made an error of law on the face of the record and/or committed jurisdictional error by failing to take into account a relevant consideration as to whether Aurizon Operations Limited had consulted with persons working on or at Aurizon Operations Limited’s railway premises or with its rolling stock the subject of the variation application.

2B Peter Doggett made an error of law on the face of the record and/or committed jurisdictional error by unreasonably or irrationally concluding that there was no requirement that the plaintiff be consulted with in relation to the proposed variation of Aurizon Operations Limited’s safety management system under s 99(3)(a)(iii) because the plaintiff had no members amongst affected rail safety workers in circumstances [where] Peter Doggett was aware that on 8 February 2022 the plaintiff’s official Steve Wright had emailed Aurizon Operations Limited and said that the plaintiff did have members that would be doing the work the subject of the variation application.

…

5 Further and in the alternative to grounds 2B and 3 above, Peter Doggett made an error of law on the face of the record and/or committed jurisdictional error by misapprehending the nature of the opinion he was required to form under ss 65(c)(iii) and 69(1)(a) of the Rail Safety National Law (NSW) by misconstruing the requirement under s 99(3)(a)(iii) as limited to consultation with unions who have as members amongst [the] persons referred to in s 99(3)(a)(i).

Consideration

Ground A1: Delegation of the power to determine an application for variation to accreditation by the Regulator to the Chief Operating Officer

78. The Union’s contention on this ground was that the condition in the Instrument which attached to the delegation of the Regulator’s power under s 69(1) of the National Law to determine variation applications to Mr Doggett was to be construed such that the power to delegate did not extend to any “determinations that result in a significant change to the scope and nature of the operations of an applicant”, even if no relevant ONRSR procedure existed.

79. The condition reads:

This delegation does not extend to determinations that result in a significant change to the scope and nature of the operations of an applicant (as determined in the relevant ONRSR procedure), and those determinations are retained by the Regulator. (“the condition”).

80. The Union’s contention was developed in the following way:

1. In the absence of a “relevant ONRSR procedure” determining whether a change to the scope and nature of the operations of an applicant is significant, the condition is not entirely inoperable.

2. Because the delegation by the Regulator of the power under s 69(1) of the National Law was limited by the condition even in the absence of a “relevant ONRSR procedure”, an application for variation of accreditation that effected a significant change in the scope and nature of the operations of an applicant was to be determined by the Regulator personally.

3. The ordinary meaning of “significant” captures changes that are important or of consequence. Changes of importance or consequence must concern both the scope and nature of the applicant’s operations. The noun “operations” can extend to an applicant’s industrial or business activities. In the context of the Instrument, it should be construed as referring to an applicant’s “railway operations” as that expression is defined in s 4 to the National Law. “Railway operations” captures, relevantly, the commissioning, use, modification, repair or decommission of rolling stock; the operation or movement of rolling stock; or the movement or causing of movement of rolling stock for the purposes of operating a railway service.

4. The requirement for there to be a “significant” change required a comparison between the scope and nature of the applicant’s operations at the time the variation application is made and that which would exist if the application were granted.

5. Whether a change in the scope and nature of an applicant’s railway operations is relevantly significant is an objective question. Assessment of the character of the change is not conditioned on the formation of an opinion or state of mind by the delegate or delegator, but on the change actually meeting the description detailed in the instrument of delegation.

6. It is a matter for this Court to ascertain whether or not a change to the scope and nature of an applicant’s operations is “significant”.

7. It is non-sensical to assume that the Regulator intended a delegate to exercise decision-making functions in relation to applications that effected significant changes where no “relevant ONRSR procedure” had been issued.

8. The addition of ‘crew cars’ was an addition to the type of rolling stock which Aurizon was accredited to operate. This was an extension of its railway operations insofar as it involved the commission or use of different rolling stock; the operation or movement of different rolling stock on a new railway; the maintenance of rolling stock; and the movement of rolling stock for the purposes of operating a new railway service.

9. Crew cars were materially different from the vehicles and locomotives to which Aurizon’s accreditation applied as they:

1. allowed Aurizon to conduct a transcontinental railway operation on a new railway route spanning the continent from Newcastle in New South Wales to Kwinana in Western Australia; and

2. permitted Aurizon to crew trains operating this service in a different and unusual manner which it had not done previously by allowing crew members to be present on the train throughout its journey and not alighting to take breaks in accommodation; and

3. represented a new way of managing train crew when crew were not engaged in driving; and

189. I would make a similar observation with respect to the words “must, so far as is reasonably practicable” (in s 99(3)(a)) and, perhaps more critically, to the words “must not grant accreditation… unless satisfied that the applicant has demonstrated” (in s 65 of the National Law). In circumstances where Mr Doggett misconstrued s 99(3)(a)(i) and did not consult with particular persons “likely to be affected” by the proposed variation, it was not possible for him legally to be satisfied that the applicant had met the consultation requirements in Pt 3, Div 6 of the National Law. It follows that, in determining the variation application as he did, Mr Doggett fell into jurisdictional error.

190. This conclusion reflects the proper inquiry to be undertaken by this Court, that is, into whether the decision-maker’s state of satisfaction (i.e. as to the consultation requirement) “has been properly formed according to law”: QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; (2013) 67 MVR 322 at [36] (“Miller”). In that same paragraph of Miller, which was cited by Aurizon in its written submissions, Basten JA quoted the following passage from the judgment of Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42 at 432:

If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational or not bona fide. (emphasis added)

191. Nothing in the statutory context, nor the purpose or structure of the National Law, undermines the positive conclusion as to jurisdictional error, particularly where the provision of safe railway operations (including through the promotion of effective stakeholder consultation) is the paramount purpose of the statute.

192. All of these considerations serve simply to fortify the consideration of Craig, whereby, having “asked [himself] a wrong question” as to s 99(3)(a)(i), Mr Doggett exceeded his authority and powers under the National Law and therefore reached a decision “otherwise than in accordance with the law”. Such an error of law “is jurisdictional error which will invalidate any order or decision… which reflects it”.

193. Ultimately, this was reflected in Dr Roche’s comment that “to be clear… we would accept if the decisionmaker had misconstrued the statute, that would be a jurisdictional error”.

194. I would uphold ground 1B.

Ground 2B: the reasonableness or rationality of the conclusion that the Union had no members amongst the “affected rail safety workers”

195. Contrary to the structure of the Amended Summons and the wording at the outset of ground 5 (“[f]urther and in the alternative to ground 2B… above”), the Union acknowledged that ground 2B was in fact advanced in the alternative to ground 5 and was premised on “the construction of s 99(3)(a)(iii) contended for [by the Union] being rejected and s 99(3)(a)(iii) requiring that for a union to represent one or more persons referred to in s 99(3)(a)(i), those persons need to be a member of the union”. For the reasons given at [112]–[166] above, I rejected the Union’s contended construction of s 99(3)(a)(iii) and dismissed ground 5 of the Amended Summons.

196. For the reasons given subsequently, at [167]–[194], I upheld ground 1B of the Amended Summons and found that Mr Doggett’s decision to approve Aurizon’s variation application was vitiated by jurisdictional error. On that basis, it is not strictly necessary to determine ground 2B. However, in the interests of completeness, I will address the parties’ arguments on this ground briefly as follows.

197. As already noted, ground 2B asserted that Mr Doggett fell into jurisdictional error by “unreasonably or irrationally concluding that there was no requirement that the plaintiff be consulted with in relation to the proposed variation… because the plaintiff had no members amongst affected rail safety workers”. The source of the asserted unreasonableness or irrationality was said to be the email described at [62] above, from Mr Wright to Mr Sallis.

198. That email was sent at 2.54pm on 8 February 2022 and read as follows:

Thanx Warren [Sallis],

Received your email.

I am still requesting consultation and would also like of [sic] copy of the procedure and information on changes to your safety Management system to accommodate this working.

Even though Aurizon Bulk do not have any employees today in NSW, it would be our intention that you will have in the future and they will then work under this type of working so some consultation would be appropriate and welcomed.

We do have members that will be doing this working NOW, understand they are Trojan employees not Aurizon but it is under your company accreditation and procedures.

Please advise of a suitable time we may be able to get together for that chat? (emphasis added)

199. Mr Wright’s email was in reply to the following email from Mr Sallis, which was sent two hours earlier, at 12.54pm on 8 February 2022:

Hi Steve [Wright],

Further to discussions last week, I am writing to confirm the below.

-    Aurizon Operations is planning to commence operations, involving occupancy of a crew car, from Broken Hill to Kwinana as the flooding damage to rail infrastructure in South Australia has been repaired.

-   The crew car will be used by workers from Trojan working under a labour hire agreement. These workers have been consulted on the Procedures for use of the crew car, and have had an opportunity to physically inspect the rollingstock and its interior. Positive feedback was received and has been incorporated into operating procedures.

-   Aurizon Operations is unaware that any workers impacted by this change are represented by the RTBU, however commits to consultation with RTBU prior to RTBU members being involved in any operations involving the use of a crew car.

-   Aurizon Operations has been cooperatively working with ONRSR to finalise a variation to its accreditation to crew cars as an item of rolling stock permissible for use under its accredited operations. (emphasis added)

The email exchange between Mr Sallis and Mr Wright was forwarded by Mr Sallis to Mr James (Aurizon’s Principal for Regulation & Accreditation) on 9 February 2022 (see [60] above).

200. Critically, on 9 February 2022, Mr James forwarded Mr Sallis and Mr Wright’s email correspondence from the previous day to Mr Wagner (ONRSR’s Director of Operations), accompanied by the following covering email (see [64] above):

Hi Greg [Wagner]

As discussed, please see below.

Warren [Sallis] will continue to work with Steve [Wright] around our operation. We can confirm though that we have checked with Trojan and the workers currently engaged re the membership Steve references, and we believe that to be incorrect. Trojan advised that a couple of workers have resigned from the RTBU in recent times. (emphasis added)

201. At [26]–[27] of the Statement of Reasons, Mr Doggett summarised the preceding correspondence as follows:

26   On 8 February 2022:

a.   Aurizon emailed the NSW branch of the Rail, Tram and Bus Union (RTBU) about consultation;

b.   the RTBU replied by email to Aurizon;

c.   Aurizon lodged the email exchange with ONRSR.

27   On 9 February 2022, Aurizon emailed ONRSR relevantly saying ‘no RTBU members at Trojan’.

202. At [37]–[38] of the Statement of Reasons, Mr Doggett summarised his opinion as to Aurizon’s satisfaction of the consultation requirement in the following terms:

“37   As mentioned, on 8 February 2022 Aurizon lodged its email to the RTBU of 8 February 2022, showing that the RTBU had not been consulted regarding the change because none of the affected rail safety workers were members of the RTBU. I had no reason to doubt Aurizon’s credibility in connection with this evidence, or at all.

38   I noted Aurizon had made a commitment to the RTBU in the email of 8 February 2022 to ensure that should anything change; they would consult with the RTBU. This is consistent with their obligations under the [National Law] and the Work Health and Safety Act 2011 (NSW) in any event. Overall, I was satisfied that Aurizon had complied with the consultation requirements in section 99(3).” (emphasis added)

203. The Union seized upon these passages as disclosing unreasonableness or irrationality on the basis that Mr Doggett failed to “grapple” with the email exchange, going so far as to submit that “Mr Doggett appears to have blithely ignored Mr Wright’s… email [of 8 February 2022]… notwithstanding that he refers to it at [26(b)] to the Statement of Reasons”. I find it very difficult to reconcile those two portions of the Union’s argument; prima facie, the reference to the RTBU’s reply email to Aurizon at [26(b)] is the logical opposite of ignorance of that email, which undermines the very basis of ground 2B.

204. Even taking this argument at its highest, as suggesting that [26] and, in particular, [27] constituted an inaccurate summary of the correspondence and could not support the conclusion in [37], I do not accept it. For instance, Mr Wright’s email was not received by the ONRSR in an information vacuum. Instead, it must be understood in context, as part of the exchange of correspondence between the parties on 8 and 9 February 2022, which is reflected in the composition of [26] of the Statement of Reasons. Further, [27] does not purport to quote Mr James’ email. It simply seeks to summarise the relevant conclusion contained therein, namely that Aurizon did not accept the correctness of Mr Wright’s statement that some of the “Trojan employees” were members of the Union as of 8 February 2022.

205. In that respect, the Union’s submission as to the import of [26]–[27] and [37] of the Statement of Reasons falls well foul of Brennan CJ, Toohey, McHugh and Gummow JJ’s warning that “the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].

206. It was not in dispute between the parties that to succeed on a ground asserting unreasonableness, irrationality, or illogicality in an administrative decision, one must satisfy a “very high bar”, such that the Union was required to demonstrate that “no rational decision maker could have reached the conclusion in the first sentence of [37] [of the Statement of Reasons] on the materials available”. This accords with the preponderance of authority concerning what was formerly known as “Wednesbury unreasonableness”: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [26]–[29]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]–[131]; Minister for Immigration and Border Protection v MZZMX (2020) 280 FCR 1; [2020] FCAFC 175 at [23]; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [32]–[35] (“Djokovic”). In Djokovic at [35], the Full Court indicated that:

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds … such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

207. Mr Boncardo accepted that Mr Sallis’ initial email to Mr Wright on 8 February 2022 “by itself… does [not], in terms of the conclusion that none of the affected rail safety workers were members of the RTBU”, support a finding of unreasonableness, irrationality or illogicality. However, as noted above, and in terms, he contended that Mr Wright’s reply at 2.54pm would have led any reasonable and rational decision-maker not to conclude that “none of the affected rail safety workers were members of the [Union]”. It was the Union’s core submission that this was not undermined by Mr James’ email to Mr Wagner on 9 February 2022. To that effect, the Court’s attention was drawn to the following matters:

a.   Mr Wright had, on 8 February 2022, said in pellucidly clear terms that the plaintiff presently had members amongst Trojan’s train crew;

b.   Mr James had said he did not believe this to be correct, without identifying any basis for this belief or the respects in which he believed it to be incorrect. Critically, Mr James did not say that this was incorrect. Rather, he simply said that Aurizon believed it to be incorrect;

c.   Mr James had said that some train crews were members of the plaintiff but had recently resigned, indicating a further degree of imprecision and ambiguity as to the membership status of Trojan employees;

d.   Mr Doggett had no independent or objective evidence to discount Mr Wright’s clear statement that the plaintiff had members amongst Trojan’s train crew.

208. I do not accept these contentions. In respect of point a), the characterisation of Mr Wright’s language as “pellucidly clear” overlooks the subsequent qualification that the workers were “Trojan employees not Aurizon”. Further, in circumstances where there would be only 10 Trojan employees engaged to operate the crew cars (see [51] above), the reference to “members that will be doing this working [now]” was lacking in concrete detail. One may have expected such detail in circumstances where Mr Sallis had previously asserted Aurizon’s understanding that there were no crew car workers amongst the Union’s members, and where his email followed “discussions [with Mr Wright] last week” and sought to provide “confirmation” of Aurizon’s understanding.

209. Turning to points b) and c), I consider the effect of Mr James’ email to Mr Wagner on 9 February to be insurmountable, as the email plainly sets out the basis for Aurizon’s belief that Mr Wright’s assertion was incorrect, namely, independent consultation with Trojan and the relevant workers themselves, which yielded information that “a couple of workers have resigned from the RTBU in recent times”. To the extent that the Union submits that this information gave rise to “a further degree of imprecision and ambiguity”, it cannot and does not rise so high as to found unreasonableness, irrationality or illogicality in reliance thereupon. Further, the distinction between an assertion of objective incorrectness and a belief as to incorrectness is immaterial and takes an excessively fine-toothed comb to the evidence.

210. Finally, the matter in d) is not strictly to the point, given that (at [37] of the Statement of Reasons) Mr Doggett stated that he “had no reason to doubt Aurizon’s credibility in connection with this evidence, or at all”. It is also prudent to note that the correspondence between Mr Sallis and Mr Wright on 8 February 2022 was received by the ONRSR in response to Mr Doggett having tasked Mr Wagner “out of an abundance of caution to seek further written evidence in relation to consultation… to confirm the accuracy of the proposition in the Decision Brief that there was no need for Aurizon to consult the [Union] in relation to the variation” (Statement of Reasons at [34]–[35]). Further, the Union’s complaint about a lack of objective evidence to discount Mr Wright’s assertion in his email of 8 February 2022 may apply with equal force to that very email (expanding upon the matters raised at [209] above). It may also be telling that Mr Wright did not follow his email up until 14 February 2022 at 4:17pm, some six days after he sent it (only two hours after Mr Sallis’ initial email), in circumstances where the decision on the variation application was made on 11 February 2022.

211. For the foregoing reasons, I find that Mr Doggett’s conclusion that the Union was not consulted “because none of the affected rail safety workers were members” of the Union was not unreasonable, irrational or illogical. Rather, it was based on findings or inferences of fact logically supported by the body of documentary evidence before him.

212. Although it is not strictly necessary to reach a conclusion on this ground, I would reject ground 2B of the Summons.

Ground 1C: Further and in the alternate to ground 1B above, Mr Doggett committed jurisdictional error by failing to take into account a relevant consideration as to whether Aurizon had consulted with persons working on or at its railway premises or with its rolling stock the subject of the variation application

213. Ground 1C is expressed as “further and in the alternative to 1B”, which ground has been upheld. It is unnecessary then to decide ground 1C.

Grounds 1A – Peter Doggett made an error of law on the face of the record and/or committed jurisdictional error by concluding that Aurizon Operations Limited had engaged in consultation with persons likely to be affected by the variation of the safety management system before establishing the safety management system in circumstances where there was no evidence such consultation had occurred prior to the establishment of the safety management system.

214. As Dr Roche correctly submitted, even though ground 1A is not expressed in the alternative, it is framed on the basis that Aurizon had consulted with the classes of persons referred to in s 99(3)(a)(i) of the National Law. As the requisite consultation under that provision has been found not to have occurred, per my findings with respect to ground 1B, ground 1A is strictly speaking not engaged, and any analysis is academic. It is unnecessary to decide this ground.

Conclusion

215. The Court rejects grounds A1, 2B and 5 of the Amended Summons. The Court upholds ground 1B and finds it unnecessary to decide grounds 1A and 1C.

216. The Union confined the relief sought to an order in the nature of certiorari as expressed in the second prayer for relief in the Amended Summons. Having regard to the findings of the Court as to jurisdictional error under ground 1B that relief is available although there was little discussion of the final form of orders in that respect during the hearing of the matter.

217. It is appropriate that Short Minutes of Order be brought in by the Union after consultation with the Defendants to reflect this judgment.

218. I will reserve the question of costs.

219. The parties should confer as to a timetable with respect to any disputed question regarding costs and otherwise provide Short Minutes of Order agreeing costs either in the Short Minutes mentioned above at [217] or by separate Short Minutes filed later in time in accordance with the directions of the Court.

Directions

220. The Court makes the following directions:

1. The Union shall bring in Short Minutes of Order by 10.00am Thursday 11 May reflecting this judgment.

2. Costs are reserved.

3. Any agreement as to costs may be incorporated in Short Minutes of Order brought in under 1 above or by Short Minutes of Order forwarded at a later time to the Chambers of the Court but in any case, no later than 21 days after this judgment.

4. Any dispute as to costs shall the determined upon a timetable agreed between the parties which timetable shall be forwarded to the Chambers of the Court within 21 days of this judgment.

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Decision last updated: 09 May 2023