Director of Public Prosecutions v Acme Storage Pty Ltd (a pseudonym)
[2017] VSCA 90
•28 April 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0182
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ACME STORAGE PTY LTD (a pseudonym)[1] |
[1]Because this is a pre-trial proceeding, pseudonyms have been used and the reasons have been prepared in a form which omits identifying details. The referred questions have also been edited to remove identifying details.
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| JUDGES: | MAXWELL P, WEINBERG and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 March 2017 |
| DATE OF JUDGMENT: | 28 April 2017 |
| ORIGINATING PROCESS: | Case Stated, Judge Hicks, County Court of Victoria, 8 September 2016 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 90 |
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CRIMINAL LAW – Offences – Elements – Occupational health and safety – Discrimination against employees – Employer alleged to have threatened adverse action against employees for raising safety issue – Whether offence requires proof of employee’s ‘genuine belief’ regarding safety issue – Whether necessary to prove reasonable grounds for belief – Whether proof of ‘threat’ requires proof of intended effect on victim – Occupational Health and Safety Act 2004 ss 76, 77.
CRIMINAL LAW – Practice and procedure – Questions of law reserved – Case stated – Whether questions necessary to answer – Whether issues in dispute – Hypothetical questions inappropriate – Requirement for concise statement of facts – DPP (Cth) v JM (2013) 250 CLR 135 applied – Criminal Procedure Act 2009 ss 302, 305, 306.
WORDS AND PHRASES – ‘raised an issue or concern about health or safety’, ‘threatens’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Niall QC, Solicitor-General for the State of Victoria, with Mr P Matthews | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr D Neal SC with Mr R O’Neill | Sparke Helmore Lawyers |
MAXWELL P
WEINBERG JA
PRIEST JA:
Summary
Acme Storage Pty Ltd (‘Acme’) is facing seven charges of discrimination against an employee in contravention of s 76(2) of the Occupational Health and Safety Act 2004 (‘OHSA’). The Crown alleges that, when certain employees at one of Acme’s worksites ‘raised a safety issue’ concerning the moving of heavy goods, Acme responded by threatening ‘to alter the position’ of each employee ‘to his detriment’.
The trial was due to commence on 29 August 2016. Shortly before that date, the judge asked each party to provide a written statement of the elements of the offence under s 76. To his Honour’s understandable surprise and dismay, the filing of those statements revealed that the parties were ‘in heated dispute’ as to what the elements were.
When the judge then raised the possibility of reserving questions of law for consideration by this Court, counsel for Acme submitted that his Honour should take that course. After negotiation between the parties, and several further appearances before his Honour, the questions set out in Annexure A to these reasons were reserved.[2]
[2]Criminal Procedure Act 2009 s 302(2) (‘CPA’).
As will appear, the stated case is unsatisfactory in several respects. First, a number of the questions reserved concern matters about which there is no dispute between the parties. Secondly, a further question concerns an issue of duplicity which is entirely hypothetical, as the defence have not raised it in the proceeding. Thirdly, the facts giving rise to the legal questions are not stated ‘in such a way that they are identified with precision’.[3] It has therefore been necessary for the Court to distil the relevant facts to enable the questions to be addressed.
[3]DPP (Cth) v JM (2013) 250 CLR 135, 155 [34] (‘JM’).
The High Court’s 2013 decision in JM established very clearly that reserved questions of law are not to be answered in the abstract but must be determined by reference to the facts of the particular proceeding. Since, however, few of the relevant facts will ordinarily have been admitted or agreed before trial, the case must be stated by reference to ‘the assertions of fact which the prosecution will seek to make good at trial’.[4]
[4]Ibid [33].
It was the responsibility of the parties to ensure that the stated case was in proper form, and that only those questions which needed to be decided were reserved. The judge had correctly pointed out that the questions needed to be formulated ‘tightly’ and that this Court would not entertain hypothetical questions. In this Court, the Solicitor-General (who appeared for the Crown) accepted that the prosecutor should have imposed ‘a greater degree of discipline on the process’. That was a shared obligation, in our view.
Finally, we respectfully endorse the trial judge’s view that these issues should have been identified — and resolved — long before the date fixed for trial. In his ruling on the defence application for a case stated, his Honour said:
In blunt terms, the parties should have either sorted this issue out long ago or at least raised the issue as to the elements being a pre-trial issue, particularly as this was the first prosecution to proceed by way of trial for the offence. This should have been a fundamental matter.
As this Court pointed out recently,[5] the responsibility of practitioners to raise questions of law promptly is made unequivocally clear by ss 199 and 200 of the CPA.
[5]Downer EDI Works Pty Ltd v The Queen [2017] VSCA 27 [37]–[41].
The answers to the questions reserved are set out at the end of these reasons. As will be apparent, the answers reflect an application of the established approach to statutory interpretation, whereby the task of interpretation begins — and ends — with the words Parliament used.[6]
[6]Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22].
The facts and issues in this trial
The relevant provisions are ss 76 and 77 of the OHSA, which provide as follows:
76 Prohibition on discrimination
(1) This section applies to—
(a)an employer who dismisses an employee, injures an employee in the employment of the employer or alters the position of an employee to the employee’s detriment; and
(b)an employer who threatens to do any of those things to an employee; and
(c)an employer or prospective employer who refuses or fails to offer employment to a prospective employee, or treats a prospective employee less favourably than another prospective employee would be treated in offering terms of employment.
(2)The employer or prospective employer is guilty of an indictable offence if the employer or prospective employer engaged in that conduct because the employee or prospective employee (as the case may be)—
(a)is or has been a health and safety representative or a member of a health and safety committee; or
(b)exercises or has exercised a power as a health and safety representative or as a member of a health and safety committee; or
(c)assists or has assisted, or gives or has given any information to, an inspector, an authorised representative of a registered employee organisation, a health and safety representative or a member of a health and safety committee; or
(d)raises or has raised an issue or concern about health or safety to the employer, an inspector, an authorised representative of a registered employee organisation, a health and safety representative, a member of a health and safety committee or an employee of the employer.
Notes
1The effect of section 57(2)(b) is that a reference to a health and safety representative includes a reference to a deputy health and safety representative.
2The offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009).
(3)An employer or prospective employer may be guilty of an offence against subsection (2) only if the reason mentioned in subsection (2)(a), (b), (c) or (d) is the dominant reason why the employer or prospective employer engaged in the conduct.
(4)An employer or prospective employer who is guilty of an offence against subsection (2) is liable to—
(a)in the case of a natural person, a fine not exceeding 500 penalty units; and
(b)in the case of a body corporate, a fine not exceeding 2500 penalty units.
77 Accused bears onus of proof
In proceedings for an offence against section 76, if all the facts constituting the offence other than the reason for the conduct of the accused are proved, the accused bears the onus of proving that the reason alleged in the charge was not the dominant reason why the accused engaged in the conduct.
The offence under s 76(2) is thus committed if an employer (or prospective employer):
(a) engages in conduct falling within sub-s (1) and does so for one of the reasons set out in sub-s (2); and
(b) that reason is the dominant reason for engaging in that conduct.
Subsection (1) identifies a number of alternative types of conduct, while sub-s (2) identifies a number of possible reasons for engaging in conduct. As a result, there is a whole range of possible combinations of conduct, and reasons for conduct, which can give rise to an offence. In the present case, the charges laid against Acme rely on ss 76(1)(b) and (2)(d). The prosecution alleges, in relation to each identified employee, that Acme
threatened to alter the position of [that] employee … to the employee’s detriment because the employee had raised an issue or concern about health and safety to the employer.
Most of the questions reserved concern what needs to be established in order to prove two of the elements, namely, that:
·the employee in question ‘had raised an issue or concern about health and safety’;[7] and
·Acme had threatened to alter the position of that employee to the employee’s detriment.[8]
[7]Referred to in the questions and in these reasons as ‘the third element’.
[8]Referred to in the questions and in these reasons as ‘the fourth element’.
Annexed to the case stated was a lengthy document setting out ‘The circumstances and facts in which the questions were reserved pursuant to s 302 of the Criminal Procedure Act 2009 (Vic) have arisen’. Although the document does contain some statements of fact, most of the relevant statements are expressed as statements of contention. They are introduced by words such as ‘The prosecution alleges that …’, ‘The prosecution case is that …’ and, elsewhere, ‘The defence says …’.
It should not be left to this Court to distil from a document of that kind the facts which give rise to the legal questions. The parties to the proceeding are always in the best position to identify the relevant facts for this purpose and, ordinarily, the Court would insist on it being done properly. Given, however, that this proceeding has already been beset by lengthy delays, we have undertaken the task ourselves.
The following seem to us to be the facts which are both necessary and sufficient to enable the reserved questions to be addressed:
1. Heavy goods were delivered to Acme’s warehouse for storage.
2.Employee A informed Acme’s operations manager (M) that the employees were concerned that lifting the goods would exceed the safe work limit of the warehouse forklift.
3.Employee B told employee C that he had looked at industry standards. He said that the employees had calculated the safe work limit of the forklift, and that he was concerned about safety.
4.When C conveyed B’s concern to the operations manager, M told C that ‘he had had enough’ of B and that ‘he and others had better watch their jobs’. Further, M said to C that their jobs were ‘on the line’ and that, if A complained further to him the following day, his employment would be terminated (charge 2).
5.M said to C that he was ‘going to get’ employee B and that C ‘had better tell everyone that M did not care if he had to sack one, five, 10 or 20 workers, that heads were going roll and that he was going to straighten the place out’ (charge 1).
6.C asked M if he wanted his comments passed on, and M made clear that he did.
7.M spoke to D and told him to pass on to B that he ‘was not wanted in the business and had better look for a new job’ (charge 3).
8.Employees A, B, E and F met with M and stated that they wanted another forklift to be obtained to lift the goods. They suggested that Acme should get WorkSafe to examine the issue.
9.M said to the four employees that Acme had ‘a reform list’ and that they ‘would not want to find themselves on the list’ (charges 4 to 7).
‘Raising an issue or concern about health or safety’
When s 76(2)(d) is relied on, the gist of the offence is that an employer acts, or threatens to act, adversely to the interests of an employee because that employee has raised ‘an issue or concern about health or safety’. According to the defence response filed in the proceeding, Acme denies that any ‘issue or concern regarding health or safety’ was raised by any of the employees ‘honestly, genuinely or in good faith’.
The contention for Acme in this Court was that:
raising an issue or concern about safety goes beyond a mere claim by an employee that a safety issue exists. Parliament cannot have intended to allow safety issues to be used as a tool to mask industrial action, insubordination, or false claims. So, for example, if it emerged that [an] employee who had claimed to believe a safety issue existed knew that in fact there was no such issue, this would not ‘raise a safety issue’.
Acme contends that, on the proper construction of s 76, the prosecution must prove that the employee who raised the issue or concern ‘believed’ that there was an issue or concern about health or safety and, further, that the issue or concern was ‘raised on reasonable grounds’. Acme submits that, on the question whether the employee had the requisite belief, the jury should be directed as follows:
In deciding whether the [employee] believed that he was raising an issue or concern about health or safety to the employer, you may consider whether it would have been reasonable for him to hold that belief in all the circumstances. This is not because the law requires that the belief be reasonable. It does not. A person may genuinely hold a belief, despite it being unreasonable. The reasonableness of the employee’s alleged belief is no more than a guide to help you decide whether or not the employee held that belief.
Acme relies, by analogy, on decisions of the Federal Court in relation to provisions of the Fair Work Act 2009 (Cth) (‘Fair Work Act’). In Shea v TRUenergy Services Pty Ltd [No 6],[9] the applicant employee contended that, contrary to the prohibition in s 340(1)(a)(ii) of that Act, her employer had taken ‘adverse action’ against her because she had exercised ‘a workplace right’. The right in question was the right of an employee ‘to make a complaint or inquiry … in relation to his or her employment’.[10]
[9](2014) 242 IR 1 (‘Shea’).
[10]Fair Work Act s 341(1)(c)(ii).
Dismissing the application, Dodds-Streeton J said:
It does not follow … that the making of false, baseless, unreasonable or contrived accusations of grave misconduct against fellow employees constitutes the making of a complaint that an employee is able to make in relation to his or her employment, and thus invokes the statutory prohibition on adverse action.
[The] grievance must at least be genuinely held and, where it takes the form of an accusation of fault, the complainant must believe it to be valid. There would otherwise be no real, but merely a spurious, grievance. The exercise of the workplace right constituted by the making of a complaint is not within the scope of statutory protection if it is made without good faith or for an ulterior purpose, extraneous to that for which the statutory protection was conferred.[11]
[11]Shea (2014) 242 IR 1, 98 [620]–[621].
On appeal, the Full Federal Court adverted to the need for ‘considerable care’ on the question of whether a complaint was genuine, in order to avoid inhibiting the free exercise of a workplace right.[12] At the same time, the Court recognised the need to balance the legitimate interests of employers and employees, consistent with the objects of the Fair Work Act.[13]
[12]Shea v Energy Australia Services Pty Ltd (2014) 242 IR 159, 163 [12].
[13]Ibid.
Acme also relies on what was said by North ACJ in McMaster v Qube Ports Pty Ltd, as follows:
The objective facts are therefore consistent with Mr McMaster’s claim that he refused to upgrade on 7 June 2013 due to his concerns about safety. Mr McMaster gave his evidence in a straightforward way. His version of events was coherent. I am satisfied that Mr McMaster held genuine concerns about the safety of his working environment at the time when he refused to upgrade on 7 June 2013. I find on the balance of probabilities that Mr McMaster refused to upgrade on 7 June 2013 … . [14]
[14](2015) 331 ALR 439, 464 [144] (emphasis added).
Further, Acme relies on the following statements by the Full Bench of Fair Work Australia in Darvell v Australian Postal Corporation:
Mr Darvell also maintains that his Honour erred in failing to find he genuinely and reasonably believed he was entitled on occupational health and safety grounds to refuse to unload his truck. We are unable to conclude that his Honour so erred because we, like his Honour, are not persuaded that Mr Darvell genuinely and reasonably believed he had occupational health and safety grounds to refuse to load his truck.
Mr Darvell’s actions and the surrounding circumstances are contrary to him having such a belief …
The fact that Australia Post had engaged in and further offered the very thing complained about in Mr Darvell’s PIN, namely consultation on the proposal to have the drivers load and unload trucks, and the fact that Mr Darvell delayed in issuing the PIN indicate Mr Darvell’s belief that he had occupational health and safety grounds to refuse to unload his truck was not genuine and/or reasonable.[15]
[15](2010) 195 IR 307, 310 [12]–[13], [15] (emphasis added) (citations omitted).
In oral argument, counsel for Acme relied on the presumption that proof of a criminal offence requires proof of mens rea.[16] It was also contended, by reference to decisions on the offence of rape, that ‘the belief of the complainant in this case is an element of the offence’. Reference was made in particular to the decision of the House of Lords in Director of Public Prosecutions v Morgan.[17]
[16]He Kaw Teh v The Queen (1985) 157 CLR 523.
[17][1976] AC 182 (‘Morgan’s case’).
For his part, the Director submits that, on their proper construction, the provisions impose no obligation on the Crown to prove either the state of mind of the employee who raised the ‘issue or concern’ or that he/she had reasonable grounds for raising it. What must be proved is that the employee ‘raised an issue or concern about health or safety’. That is a question of fact. It is for the jury to decide whether, in the circumstances of the case, what the employee did ‘amounts to’ raising an issue or concern about health or safety. The Director submits that
it is conceivable that an employee may purport to raise an issue or concern about health and safety that is so spurious or unfounded as to not amount to raising an issue or concern about health and safety, but that is not the case at hand.
Consideration
In our view, the Director’s submissions must be upheld. What must be proved for this element of the offence is that the employee in question ‘raised an issue or concern about health or safety’. That is a question of fact for the jury to decide, taking into account all of the surrounding circumstances.
The jury must decide whether what the relevant employee did is properly described as ‘raising an issue or concern about health or safety’. In making that decision, the jury may be expected to pay careful attention to any evidence (and any defence argument) suggesting that the employee acted disingenuously, or for an ulterior purpose, or without having knowledge of (or belief in) the existence of ‘an issue or concern’ about health or safety. But there is nothing in the language of s 76(2)(d) which requires affirmative proof of the employee’s state of mind, less still of the existence of a belief held on reasonable grounds.
As the Solicitor-General pointed out, if the legislature had intended to require proof of matters of that kind, provision to that effect could readily have been made. An example of an OHSA offence where state of mind has to be proved affirmatively is s 32, where the prosecution must prove that the accused acted recklessly. An example of a provision requiring belief on reasonable grounds is s 60(1) of the OHSA, concerning the issue of a provisional improvement notice.[18]
[18]See also OHSA s 111 (‘reasonably believes’).
Self-evidently, the presumption of mens rea has no bearing here, where what has to be proved is conduct engaged in by the alleged victim of an offence. For the same reasons, the reliance on rape cases was wholly misplaced. The decision in Morgan’s case concerned the accused’s belief that the victim was consenting.[19]
[19]The Crimes Act 1958 now defines the offence by reference to the accused’s ‘reasonable belief in consent’, and devotes a separate provision to that element: R v Saragozza [1984] VR 187, 193–6.
For completeness, we should mention that counsel for Acme also relied on the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay.[20] That case concerned the ‘adverse action’ provisions of the Fair Work Act, referred to earlier. Counsel for Acme pointed to the discussion in Barclay of how the ‘real reason’ for the employer’s conduct should be identified. Reference was made to an earlier statement by Mason J that the prohibited factor needed to be a ‘substantial and operative’ factor in the decision.[21] This, it was said, was a qualification not expressed in the legislation itself.[22]
[20](2012) 248 CLR 500 (‘Barclay’).
[21]Ibid 530 [85], quoting General Motors Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235, 242.
[22]Ibid 541–2 [126]–[127].
In the same way, counsel submitted, the requirements advanced here (genuine belief, reasonable grounds) could be ‘read in’ to s 76. We disagree. In Barclay itself, French CJ and Crennan J said:
[D]irect evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘Why was the adverse action taken?’
This question is one of fact, which must be answered in the light of all the facts established in the proceeding.[23]
As will be apparent, that conclusion mirrors the conclusion we have reached with respect to this element of the s 76 offence.
[23]Barclay (2012) 248 CLR 500, 517 [44]–[45].
Finally, we note that the submissions for Acme appeared to imply that there was a clear dichotomy between pursuing a ‘genuine’ concern about safety, on the one hand, and pursuing ‘industrial’ objectives on the other. As noted earlier, Acme’s submission in this Court refers to safety issues being ‘used as a tool to mask industrial action’.
That is a false dichotomy, in our view. Plainly enough, safety in the workplace is an industrial issue of great importance to both employers and employees. The mere fact that a safety issue was raised as part of, or in connection with, the pursuit of other industrial objectives would not necessarily mean that an offence of this kind could not be proved. The context in which a safety issue is raised will, of course, be an important part of the circumstances by reference to which the jury decides the question of fact concerning the employee’s conduct.
‘Threatens to alter the position of an employee to the employee’s detriment’
As noted earlier, the allegation against Acme is that, in respect of each of the relevant employees, Acme ‘threatened’ to alter that employee’s position to his detriment. The questions raised are directed at, first, the state of mind of the person who made the alleged threat and, secondly, the state of mind of the person the subject of the threat.
As to the first of these, Acme contends that the Crown must prove that the maker of the threat:
(c) intended that the employee should fear that the threat would be carried out; or
(d) was reckless as to whether the employee would fear that the threat would be carried out.
Once again, reliance is placed on the presumption of mens rea. Acme invokes the offence of assault, which requires proof of a threat to inflict unlawful force on another and that
by some physical act the threatener intentionally or recklessly caused the other to believe such force was about to be inflicted on him.[24]
[24]Logdon v DPP [1976] Crim LR 121, 122.
As to the state of mind of the target of the threat, Acme contends that the Crown must prove beyond reasonable doubt that the employee believed that the threat would be carried out. Again, Acme relies on the analogy with assault cases, where
it is a necessary part of an assault charge that the person to whom violence is offered, to whom the threat is made, must either feel, or at all events believe that violence is to be feared …[25]
[25]R v McNamara [1954] VLR 137, 138.
Once again, in our view, there is a short answer to these submissions. If Parliament had intended to require any of these matters to be proved, specific provision to that effect could — and would — have been made. There is an instructive contrast with the offence of threat to kill, under s 20 of the Crimes Act 1958, which relevantly provides as follows:
20 Threats to kill
A person who, without lawful excuse, makes to another person a threat to kill that other person or any other person—
(a)intending that that other person would fear the threat would be carried out; or
(b)being reckless as to whether or not that other person would fear the threat would be carried out—
is guilty of an indictable offence.
As can be seen, the accused’s intention — or recklessness — with respect to the effect of the threat is here expressed to be an element of the offence.
We also refer to the equivalent provision in the Crimes Act 1900 (ACT), which is in slightly different terms:
30 Threat to kill
If—
(a) a person makes a threat to another person to kill that other person or any third person—
(i) intending that other person to fear that the threat would be carried out; or
(ii) being reckless whether or not that other person would fear that the threat would be carried out; and
(b) the threat is made—
(i) without lawful excuse; and
(ii) in circumstances in which a reasonable person would fear that the threat would be carried out;
the firstmentioned person is guilty of an offence punishable, on conviction, by imprisonment for 10 years.[26]
[26]Emphasis added; see Luu v Cook (2008) 185 A Crim R 403.
As Acme acknowledged in its submission, the word ‘threat’ is to be given its ordinary and natural meaning. The Macquarie Dictionary defines ‘threat’ relevantly as follows:
1.a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace.
2.an indication of probable evil to come; something that gives indication of causing evil or harm.
Thus, what must be proved to establish this element of the s 76 offence is that the accused intentionally made ‘a declaration of an intention or determination to inflict punishment, pain or loss on someone’. The mental element, plainly enough, is the intention to make such a declaration. As the parties agreed, it is immaterial whether the person making the threat intends to carry it out.[27]
[27]See reserved question 1(e) under the ‘fourth element’.
As with the first element, it will be a question of fact, to be determined by the jury in the light of all of the relevant circumstances, whether the person acting on behalf of Acme did ‘threaten’ to alter the position of the employees to their detriment. There is no relevant analogy with the offence of assault, the elements of which are quite different.
Question 1(d) of the ‘fourth element’ raises the issue of whether the Crown must prove ‘that the threat was conveyed to the subject of the threat’. Acme contends that it must. Once again, there is nothing in the provision itself which imposes such a requirement nor, in our view, is it to be implied. Provided that the relevant declaration of intention is proved to have been made, it is immaterial whether the threat is communicated to the person the subject of the proposed action, or to a third party. A tentative view to the contrary was expressed by the Full Federal Court in Community and Public Sector Union v Telstra Corporation Ltd[28] but — as the Court there noted — the point did not fall for decision and hence there was no occasion for the Court to give it substantive consideration.
[28](2001) 107 FCR 93, 101 [22] (‘CPSU v Telstra’).
In the present case, this point is of academic interest only. As appears from the factual summary set out earlier, the Crown’s case is that, in each instance, the threat was communicated — or intended to be communicated — to the relevant employee.
Were the words used ‘capable’ of satisfying the statutory requirement of ‘threat’?
Of the ‘fourth element’, question 1(f) asks:
Does the Crown have to prove that the words used were capable of bearing the meaning alleged by the prosecution?
Question 1(g) asks:
Does the Crown have to prove beyond reasonable doubt that the meaning alleged by the prosecution was capable of constituting a threat?
It is difficult to understand why it was thought necessary to reserve these questions. As counsel for Acme acknowledged, it is always open to an accused to seek to have a charge dismissed on the basis that the alleged conduct is not capable, as a matter of law, of constituting the offence alleged.
In the present case, it has always been open to Acme to advance an argument before the trial judge that none of the words attributed to its operations manager, M, is reasonably capable of constituting a ‘threat’ of the kind alleged. No such point has been taken, however.
Three separate offences?
Of the fourth element, question 2 asks:
Does the language in s 76(1)(a) and (b) and (2)(d) create three separate offences predicated upon dismissal, injury and detriment?
Question 3 asks:
If the answer to question 2 above is yes, does a threat to dismiss an employee also constitute an offence under (2)(c) above, altering the position of an employee to [the] employee’s detriment?
These questions were raised, we were told, because of a last-minute reformulation of charges 1 to 3 by the prosecution. As originally pleaded, each of those charges alleged that Acme ‘threatened to dismiss’ the relevant employee. As now amended, the alleged conduct in each case is a threat ‘to alter the position of [the employee] to his detriment’.
By the time of the hearing in this Court the parties were in agreement that a threat to dismiss an employee was capable of being characterised as a threat to alter the employee’s position to his detriment. That is, there is overlap between the categories of proscribed conduct.
No question of duplicity has arisen, however. Nor could it arise on the indictment as now drawn. As the judge himself pointed out to counsel, each of the charges in the indictment is confined to the third of the three proscribed actions, that is, the threat of detrimental alteration of position.
That being the case, it is unnecessary to answer these questions. They should not have been reserved.
The meaning of the word ‘detriment’
Of the fourth element, question 4 asks:
Does the word ‘detriment’ within the statute have a legal meaning or is it an ordinary everyday word and thus a matter for the jury?
The parties agreed, in their written submissions, that ‘detriment’ had an established legal meaning, and was not therefore an ordinary English word the meaning of which was a matter for the jury. During the course of oral submissions, however, the Solicitor-General resiled from that contention. He submitted instead that the word ‘detriment’ was used in its ordinary sense, and that the jury should be so directed.
Acme, on the other hand, maintained its position, as set out in its Summary of Contentions, that ‘detriment’ was used in the OHSA in the same technical and legal sense as similar language is used in other federal industrial legislation aimed at the protection of employees from action by their employers. Acme further submitted that the jury, in a trial on indictment under s 76 of the OHSA, should be so instructed. More specifically, Acme argued that ‘detriment’, in context, meant ‘real and substantial’ detriment, that having the effect of narrowing the scope of the offence with which it has been charged.[29]
[29]CPSU v Telstra (2001) 107 FCR 93, 100 [19].
Acme relied upon that submission in support of its primary argument regarding charges 4 to 7. The particulars to those charges described the alleged threat as constituted by ‘words to the effect that the employer had a reform list and they would not want to find themselves on that list’. Acme has foreshadowed that it proposes to argue, by way of defence to those charges, that even if such a threat had been made, it could not conceivably constitute a threat of a ‘detriment’ in the legal sense in which that term is used. That meant that there would be a live issue, at trial, as to whether any such threat, if made, was ‘real and substantial’.
There is a problem with the way in which the question reserved for this Court is expressed. It assumes that a term such as ‘detriment’ must either be used in a legal sense (whatever that may mean), or be given its ordinary meaning, in which case the jury will be left at large, and effectively uninstructed, to consider whether this element of the offence is made out. That assumption is questionable.
The dichotomy that the question postulates may not be exhaustive. A word in a statute may be given its ordinary, or ordinary and natural,[30] meaning but at the same time allow for the jury to be given guidance as to what that happens to be.[31] At the other end of the spectrum, there are some statutory terms that seem to be in ordinary, everyday use, but in context have a more specific, and quite technical, legal meaning, quite at odds with that ordinary meaning.
[30]See generally Oliver Jones, Bennion on Statutory Interpretation (LexisNexis, 6th ed, 2013) 1059.
[31]An example is the expression ‘beyond reasonable doubt’, where the jury are told that it is to be given its ordinary and natural meaning. However, in accordance with ss 63–64 of the Jury Directions Act 2015, there may be circumstances where they can be given further guidance as to what that meaning might happen to be.
The starting point in determining which of these possible approaches to the language used should be adopted must be the decision of the High Court in Collector of Customs v Agfa-Gevaert Limited.[32] In that case, a tribunal hearing a customs duty appeal found that the phrase ‘silver dye bleach reversal process’, in a tariff concession order, had no technical or trade meaning. However, the tribunal also found that the words ‘silver dye bleach process’, without the word ‘reversal’, did have such a meaning.
[32](1996) 186 CLR 389 (‘Agfa-Gevaert’).
The tribunal construed the composite phrase, including the word ‘reversal’, by reference to the technical or trade meaning of ‘silver dye bleach process’, and the ordinary meaning of ‘reversal’. The Full Court of the Federal Court reversed that decision. The High Court then overturned the decision of the Full Court, and held that the tribunal’s construction involved no error of law.
In the course of a joint judgment, the High Court referred to an earlier decision of the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd.[33] There, after an extensive review of earlier authority, the Full Federal Court had laid down a series of principles that could be invoked in endeavouring to resolve the question that is said to be presently before this Court.
[33](1993) 43 FCR 280 (‘Pozzolanic’).
These principles were as follows:
1.The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.
2.The ordinary meaning of a word or its non-legal technical meaning is a question of fact.
3. The meaning of a technical legal term is a question of law.
4.The effect or construction of a term whose meaning or interpretation is established is a question of law.
5.The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.[34]
[34]Ibid 287, quoted in Agfa-Gevaert (1996) 186 CLR 389, 395 (citations omitted).
The High Court went on to observe that, in Pozzolanic, the Court had qualified the fifth principle by observing that, when a statute uses words according to their ordinary meaning, and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is a question of fact.[35]
[35]Agfa-Gevaert (1996) 186 CLR 389, 395; That, of course, suggests that, on a trial on indictment, that question will be one for the jury to determine.
For present purposes, what is significant about Agfa-Gavaert is the High Court’s willingness to treat an obviously technical expression, such as ‘silver dye bleach reversal process’, as having at least in part an ordinary meaning, as distinct from an exclusively trade meaning. As the High Court observed, there are cases where a court or tribunal must interpret a composite phrase by reference to the ordinary meaning of the words taken as a whole, without recourse to any trade or technical meaning that one or more of the words of that composite phrase may have.[36] Thus, the word ‘reversal’ in the composite expression, being an ordinary English word in everyday use, had been correctly construed by the tribunal as having its ordinary meaning, despite appearing within a collocation of other words that plainly could only have had a technical meaning.
[36]Agfa-Gevaert (1996) 186 CLR 389, 401.
In Project Blue Sky v Australian Broadcasting Authority, the joint judgment of McHugh, Gummow, Kirby and Hayne JJ formulated the relevant principle as follows:
[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[37]
[37](1998) 194 CLR 355, 384 [78] (citations omitted).
In Marine Power Australia Pty Ltd v Comptroller-General of Customs, Lockhart J formulated the approach that should be adopted as follows:
Words in statutes should be taken to have been used by the legislature in their ordinary sense unless there is something in their context, phrasing or the subject matter with which they deal to lead to the conclusion that they are intended to assume a technical meaning or to be used in a specialised or trade sense.[38]
[38](1989) 18 ALD 572, 576.
More recently, in Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing, Hall J elevated the maxim almost to the level of a presumption when his Honour said:
If it is intended that a word in a statute will be used in a specific way that may not accord with ordinary usage such an intention is generally reflected in a definition in the statute. Absent such a definition, the ordinary meaning should prevail unless there is something in the context to suggest that another meaning is intended.[39]
[39][2012] WASC 463 [22]; see generally DC Pearce & RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) [4.8].
In R v AL (a pseudonym),[40] this Court dealt with the construction of a complex provision in the Commonwealth Criminal Code. The question was what approach should be taken to the word ‘addition’ in a provision which identified various ‘border controlled drugs’ in highly sophisticated chemical and scientific terms. There would, potentially, have been a different outcome depending upon whether ‘addition’ was given its ordinary and natural meaning, or a special and technical (one might almost say counter-intuitive) meaning.
[40](2016) 310 FLR 320.
The Court stated the following test:
Whether a word in a statutory provision was intended to be given its ordinary meaning or some special or technical meaning is a question to be determined by the application of ‘logic and common sense’. Where the word in question is in common use, the starting-point is that Parliament intended the word to be interpreted in accordance with everyday usage.[41]
[41]Ibid 323 [11] (citations omitted).
Despite the fact that the word ‘addition’ appeared in the context of a highly technical chemical description, and was surrounded by entirely scientific language, the Court concluded that the presumption that the word ‘addition’ was used in its ordinary sense should prevail.
The English approach to this issue has been much the same.[42] In Brutus v Cozens,[43] the issue was whether the term ‘insulting’, as a component of an offence contained within the Public Order Act 1936, was to be given its ordinary meaning or was to be understood in some special and technical legal sense. Lord Reid observed that Parliament had given no indication that the word was to be given any unusual meaning. Accordingly, ‘insulting’ meant ‘insulting and nothing else’.[44]
[42]See generally Oliver Jones, Bennion on Statutory Interpretation (LexisNexis, 6th ed, 2013) 1081–4.
[43][1973] AC 854.
[44]Ibid 863.
In R v Feely,[45] the English Court of Appeal had to confront the requirement of dishonesty in the then newly-enacted Theft Act 1968 (UK). It said:
[T]he word ‘dishonestly’ can only relate to the state of mind of the person who does the act which amounts to appropriation. Whether an accused person has a particular state of mind is a question of fact which has to be decided by the jury when there is a trial on indictment, and by magistrates when there are summary proceedings …
We do not agree that judges should define what ‘dishonestly’ means. This word is in common use … Jurors, when deciding whether an appropriation was dishonest can be reasonably expected to, and should, apply the current standards of ordinary decent people. In their own lives they have to decide what is and what is not dishonest. We can see no reason why, when in a jury box, they should require the help of a judge to tell them what amounts to dishonesty.[46]
[45][1973] QB 530.
[46]Ibid 537–8. See also R v Ghosh [1982] QB 1053.
The English approach to the term ‘dishonestly’ has not found favour in Victoria in relation to that same term as used in the Crimes Act 1958. Here, the term is said to have been used in a special and technical sense, as meaning, essentially, without a belief in a legal right to obtain or appropriate the property.[47] Juries are routinely directed in accordance with that special and technical meaning.
[47]See, eg, R v Salvo [1980] VR 401; R v Brow [1981] VR 783; and R v Bonollo [1981] VR 633; see also David Lusty, ‘The meaning of dishonesty in Australia: Rejection and resurrection of the discredited Ghosh test’ (2012) 36 Crim LJ 282.
As we have said, Acme contends that the word ‘detriment’ is used in a special, and quite narrow, sense, requiring that the detriment be both ‘real’ and ‘substantial’. This argument rests largely upon a passing observation by the Full Federal Court in CPSU v Telstra, referred to earlier, which was decided under the provisions of the then Workplace Relations Act 1996 (Cth) (‘Workplace Relations Act’).[48] Acme contends that the case stands as authority for the proposition that the word ‘detriment’ in the OHSA is to be construed narrowly, and requires that the detriment be both ‘real and substantial’.
[48]CPSU v Telstra (2001) 107 FCR 93, 100.
Careful examination of the decision in that case demonstrates that it provides no support for Acme’s contention. The particular provision under consideration was s 298K(1) of the Workplace Relations Act. That subsection made it unlawful for an employer to do, or threaten to do, any of the following things for a prohibited reason:
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c) alter the position of an employee to the employee’s prejudice;
(d) refuse to employ another person; or
(e)discriminate against another person in the terms or conditions on which the employer offers to employ the other person.
Perhaps little of consequence turns upon the fact that the word ‘prejudice’ was used in that section, rather than the word ‘detriment’, as in the OHSA. However, it is clear that the Full Federal Court at no stage gave any consideration to whether the word ‘prejudice’ had been used in a special or technical sense, or should be given its ordinary and natural meaning.
Rather, what the Court said (perhaps tangentially only regarding that question) was:
Where the alteration of position is alleged to be indirect or consequential, as in Patrick Stevedores and in the present case, a difficult question may arise as to whether a prejudicial alteration of position has in fact occurred. Answering that question may involve questions of degree. It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description in s 298K(1)(c).[49]
[49]Ibid 100, [18].
Acme has fixed upon the words ‘real and substantial’ in that passage to support its contention that the same words should be read into s 76 of the OHSA. Yet the passage in question, when understood in context, does not support Acme’s contention that the term ‘detriment’ in s 76 is being used in some special legal sense, that is, in some way different from ordinary usage.
First, it might be said that the adjective ‘real’, ahead of detriment, adds little to the meaning that should be accorded to that word. There is either a detriment or there is not. If there is, it will necessarily be ‘real’. If there is not, there will be no detriment.[50]
[50]That is, unless the word ‘real’ is intended to mean significant or substantial, as distinct from genuine.
Secondly, the meaning to be given to a word such as ‘detriment’, which appears in a statute as an element of an indictable offence, will necessarily be influenced by the context in which that word appears. At one end of the spectrum, a threat of detriment that is trivial will be incapable of meeting the requirements of the section. That is not because the word has a legal or technical meaning. It is rather that a threat which is de minimis should not be left to the jury for its consideration of whether this element has been met. Assuming the threat passes that modest threshold, it will be a question of fact for the jury as to whether this element of the offence has been established.
Thirdly, it would be odd to think that the term ‘detriment’, within the relevant provision, would have a legal meaning materially different from ordinary usage, whereas surrounding terms such as ‘dismiss’ and ‘injure’ would seem to have their ordinary and natural meaning.[51]
[51]This is simply an application of the maxim noscitur a sociis.
With regard to a term like ‘detriment’, juries can, we think, be trusted to work out for themselves whether this element has been satisfied. Had the legislature wished to give the word ‘detriment’ a special, narrower meaning, at odds with the ordinary and natural meaning, it would have been easy to use clear and unmistakeable language to bring about that result.[52]
[52]A good example lies in the offence of intentionally causing serious injury. Parliament has chosen not to leave the question whether an injury should be so described at large to the jury, but has provided instead a close, and very specific, definition of the term ‘serious’. See Crimes Act 1958 ss 15 (definition of ‘serious injury’) and 16.
It follows that our answer to the question reserved is that the word ‘detriment’ is an ordinary, everyday word, and thus a matter for the jury as to whether this element is satisfied. It is not a word that has a special, and different, legal meaning, at odds with its ordinary and natural meaning.
That does not mean that a judge cannot determine, on a no case submission (or perhaps even at the outset of a trial), that the facts alleged cannot give rise to a ‘detriment’ within the meaning of the section. Nor does it mean that the judge cannot give the jury some assistance as to how to go about the task of determining whether there has been a threat of a detriment. That assistance might even extend to using terms such as ‘real and substantial’, without intruding upon the jury’s role in determining this question as one of fact.
In our view, the question reserved for this Court, as formulated, presents a false dichotomy, and for that reason should not be answered ‘yes’ or ‘no’. Rather, it should simply be answered by reference to what appears in this part of the judgment.
Detriment of what kind?
Of the fourth element, question 5 asks:
For the purposes of s 76(1)(a) and (b) and (2)(d) is the expression ‘detriment’ confined to a ‘detriment’ sustained within the [employee’s] employment with the Accused?
The parties were in agreement that this question should be answered in the negative. There being no controversy on the point, the question should not have been reserved.
The reverse onus
As noted earlier, s 77 imposes a reverse onus with respect to proof of ‘the reason for the conduct of the employer’. That is, if the other elements of the offence are established beyond reasonable doubt, the employer must prove
on the balance of probabilities that the reason alleged in the charge was not the dominant reason why the employer engaged in the conduct.
The first question on this topic posed in the stated case is in the following terms:
Is s 77 a statutory presumption that unless the accused can, on the balance of probabilities, prove that the reason alleged in the charge was not the dominant reason why the accused engaged in the relevant conduct then the prosecution has proven beyond reasonable doubt that the reason alleged in the charge was the dominant reason?
It is, with respect, surprising that this question was asked. First, it is really just a request for advice on a pure question of construction. Secondly, having regard to the plain language of s 77, the question effectively answers itself. Finally, and decisively, there was no dispute between the parties about the answer to the question. It should never have been asked.
Questions 2 and 3 need not be set out in full. They use the language of ‘dominant and genuine reason’, and ask whether a direction should be given to the effect that the ‘dominant reason for making the threat was genuinely held by [M]’.
It is, once again, remarkable that these questions were reserved, given that the parties are in agreement that they should be answered in the negative. Although it is unnecessary for us to comment, the joint position is plainly correct. There is no more warrant for reading ‘genuineness’ into s 77 than there is for reading it into s 76. The question of what was the relevant officer’s ‘dominant reason’ for taking the alleged action is a question of fact, which the jury will be perfectly able to resolve for themselves on the evidence before them.
The questions reserved should be answered as follows:
The third element[53]
[53]See [16]–[33].
1 (a) No.
(b) Unnecessary to answer.
(c) No.
(d) No.
(e) No.
The fourth element[54]
[54]As to parts (a)–(e), see [34]–[43].
1 (a) No.
(b) No.
(c) No.
(d) No.
(e) No.
(f) Does not arise.[55]
[55]As to parts (f) and (g), see [45]–[47].
(g) Does not arise.
2. Unnecessary to answer.[56]
[56]As to questions 2 and 3, see [48]–[52].
3. Unnecessary to answer.
4. See para [85] of the reasons.
5. No.[57]
[57]See [83]–[84].
The fifth element[58]
[58]See [88]–[92].
1. Yes.
2. No.
3. Unnecessary to answer.
ANNEXURE A
Part A
The parties agree that the following five elements constitute an offence pursuant to s 76(1)(a) and (b) and (2)(d) of the Occupational Health and Safety Act 2004:
i. That the accused is an employer.
ii. That the [employee] named in the charge was employed by the accused.
iii.That the [employee] raises or has raised an issue or concern about health or safety to the employer. (s 76(2)(d))
iv. That the employer made a threat to dismiss or alter the position of that [employee] to that [employee’s] detriment. (s 76(1)(a) & (b))
v. That the dominant reason why the employer engaged in that threat was because that [employee] raised or had raised a health or safety concern to the employer. (s 76(3))
Reverse Onus (s 77)
If the prosecution satisfies the jury beyond reasonable doubt as to the matters set out above except for the reason for the conduct of the employer, the employer bears the onus of proving on the balance of probabilities that the reason alleged in the charge was not the dominant reason why the employer engaged in the conduct.
Part B
The questions
The third element.
Namely, that the [Employee] raises or has raised an issue or concern about health or safety to the employer (s 76(2)(d))
Does the Crown have to prove beyond reasonable doubt any of the following:
a) That the [employee] who raised the issue or concern about health or safety to the employer believed that there was an issue or concern about health or safety (subjective test).
b) If yes to (a) Is the following direction appropriate to be given concerning the subjective belief of the [employee]?
In deciding whether the [employee] believed that he was raising an issue or concern about health or safety to the employer, you may consider whether it would have been reasonable for him to hold that belief in all the circumstances. This is not because the law requires that the belief be reasonable. It does not. A person may genuinely hold a belief, despite it being unreasonable. The reasonableness of the [employee’s] alleged belief is no more than a guide to help you decide whether or not the [employee] held that belief.
c) that the issue or concern about health or safety was raised genuinely and in good faith (subjective test)?
d) that the issue or concern about health or safety was raised on reasonable grounds (objective test)?
e) that the health or safety matter raised was objectively true?
The fourth element
Namely, that the employer made a threat to dismiss or alter the position of that [employee] to that [employee’s] detriment (s 76 (1)(a) & (b))
Does the Crown have to prove beyond reasonable doubt any of the following:
(i) That the maker of the threat intended that the [employee] fear that the threat would be carried out (intention); or alternatively
(ii) that the maker of the threat knew the [employee] would probably fear that the threat would be carried out (reckless)?
b) that the [employee] believed that the threat would be carried out?
c) that a reasonable person would have feared that the threat would be carried out?
d) that the threat was conveyed to the subject of the threat?
e) the maker of the threat intended to carry out that threat?
f) that the words used were capable of bearing the meaning alleged by the Prosecution?
g) that the meaning alleged by the prosecution was capable of constituting a ‘threat’?
Does the language of ss 76(1)(a) and (b) and (2)(d)) create three separate offences predicated upon:
a. dismissing an employee of the employer (or threatening to do so);
b.injuring an employee in the employment of the employer (or threatening to do so);
c. altering the position of an employee to employee’s detriment (or threatening to do so)?
If the answer to question 2 above is yes, does a threat to dismiss an employee also constitute an offence under (2)(c) above, altering the position of an employee to an employee’s detriment?
Does the word ‘detriment’ within the statute have a legal meaning or is it an ordinary everyday word and thus a matter for the jury?
For the purposes of s 76(1)(a) and (b) and (2)(d), is the expression ‘detriment’ confined to a ‘detriment’ sustained within the [employee’s] employment with the accused?
The fifth element
Namely, that the dominant reason why the employer engaged in that threat was because that [employee] raised or had raised a health or safety concern to the employer. (section 76(3) and s 77).
The reverse onus
Is s 77 a statutory presumption that unless the accused can, on the balance of probabilities, prove that the reason alleged in the charge was not the dominant reason why the accused engaged in the relevant conduct then the prosecution has proven beyond reasonable doubt that the reason alleged in the charge was the dominant reason?
(Assuming the elements constituting the charge other than the reason for the conduct of the accused are proven beyond reasonable doubt)
In discharging ‘the reverse onus’ of proving on the balance of probabilities that the reason alleged in the charge was not the dominant reason why the accused engaged in that conduct (s 77):
Does the employer have to prove on the balance of probabilities that [M’s] reason was the dominant and genuine reason for making a threat and his dominant reason was not because the employee had raised a health or safety issue or concern?
If the answer to 2 above is yes is it appropriate to give the following direction:
In deciding whether or not the defence has proved on the balance of probabilities that [M’s] reason for making the threat was not because the employee had raised a health or safety issue or concern you must be satisfied on the balance of probabilities, taking into account all of the facts and circumstances of the case that [M’s] dominant reason for making the threat was genuinely held by him.
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