Director of Public Prosecutions v Downer EDI

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0098

DIRECTOR OF PUBLIC PROSECUTIONS

DOWNER EDI WORKS PTY LTD AND ROADS CORPORATION T/A VICROADS

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JUDGES:	MAXWELL P, WEINBERG and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 June 2015
DATE OF JUDGMENT:	29 October 2015
ORIGINATING PROCESS:	Case stated from Judge Davis, County Court of Victoria, 25 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 287

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CRIMINAL LAW – Case stated – Occupational health and safety – Defendants conducting works on road – Duty under Road Safety Act 1996 (RSA) to ensure works conducted safely – Duty owed to road users and road workers – Worker killed – Whether RSA duty displaces defendants’ duties to employees and others under Occupational Health and Safety Act 2004 (‘OHSA’) – Defendants performing functions under Road Management Act 2004 (‘RMA’) – RMA required compliance with RSA duty – Whether RMA inconsistent with OHSA – No inconsistency – OHSA charges valid – RMA ss 3, 4, 5, 20, 24-28, 33-34, 39, 47-48, 103 and Schedule 7 – RSA ss 99A, 99B – OHSA ss 21, 23, 152 – Transport Integration Act 2010 ss 6, 8-3.

STATUTORY INTERPRETATION – Implied repeal – Occupational health and safety – Road management – Road authority – Defendants conducting works on road – Second defendant performing road management functions under Road Management Act 2004 (RMA) – Whether RMA dealt exhaustively with road management functions – Whether intended to exclude other legislation applicable to road management functions – Whether necessary implication – Presumption against implied repeal – Occupational Health and Safety Act 2004 not excluded.

STATUTORY INTERPRETATION – Criminal law – Overlapping offences – Conduct covered by summary offence and indictable offence – Whether offences inconsistent – Limitation period for charging summary offence – Period expired – Whether open to charge indictable offence – Prosecutorial discretion – No inconsistency – Road Safety Act 1996 s 99A, Occupational Health and Safety Act 2004 ss 21, 23.

STATUTORY INTERPRETATION – Legislative history – Extrinsic materials – Law reform recommendations – Highway authorities – Liability – Breach of statutory duty – Financial constraints – Statutory scheme to limit liability – Policy defence – Policy or policy decision ‘taken to satisfy the statutory duty’ – Whether applicable to criminal proceedings – Defence to civil proceedings only – Road Management Act 2004 ss 39, 103.

PRACTICE AND PROCEDURE – Case stated – Appropriate for inconsistency question – Answer will determine whether charges proceed – Other questions hypothetical – Advisory opinion – Not appropriate to answer.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S P Donaghue QC with Mr P D Herzfeld	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For Downer EDI Works Pty Ltd	Mr O P Holdenson QC with Mr R W Taylor and Ms E L Coates	Sparke Helmore Lawyers
For Roads Corporation T/A VicRoads	Mr N Clelland QC with Ms A Fox	Maddocks

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MAXWELL P:

Summary

On the night of 30 November 2011, resurfacing works were being undertaken on Canterbury Road in Bayswater. Downer EDI Works Pty Ltd (‘Downer’) was the principal contractor engaged by the Roads Corporation (‘VicRoads’) to perform the works.

Downer had engaged sub-contractors to carry out certain of the works under the VicRoads contract. On the night of 30 November 2011, an employee of one of the sub-contractors, Statewide Traffic Control Pty Ltd, was working at the site as a pedestrian traffic controller. An employee of another sub-contractor, U-Sweep Pty Ltd, was driving a sweeper vehicle at the site.

The traffic controller was aligning bollards which separated the live traffic lane from the worksite, while the sweeper was operating along the length of the site, at times close to the bollards. Tragically, while the traffic controller was attending to the bollards and had his back turned to the sweeper, the sweeper reversed towards him and ran him over. The traffic controller was killed.

Both Downer and VicRoads (the ‘defendants’) face two charges under s 21 of the Occupational Health and Safety Act 2004 (the ‘OHSA’). In each case the charge alleges that the relevant defendant failed to provide for its employees, so far as was reasonably practicable, a working environment that was safe and without risks to health.[1] The first charge relies on s 21(2)(a), the second on s 21(2)(e). There is a further charge against Downer under s 23 of the OHSA, alleging that it failed to ensure, so far as was reasonably practicable, that persons other than its employees were not exposed to risks to their health and safety arising from the conduct of Downer’s undertaking.
[1]‘Employee’ for this purpose includes an employee of a sub-contractor: OHSA s 21(3)(a).

The contention for the defendants is that the conduct in question was governed not by ss 21 and 23 of the OHSA but by s 99A(2) of the Road Safety Act 1986 (the ‘RSA’). That provision imposes on a person conducting works on a highway a duty to ensure that

the works … are conducted in a manner that is safe for road users and persons engaged in carrying out the works.

According to the defendants, the duty imposed by s 99A governed their conduct of these road works to the exclusion of the safety duties imposed on them by the OHSA.

Each defendant applied to the trial court under s 199(1)(c) of the Criminal Procedure Act 2009 for an order quashing the OHSA charges. In the event, the judge (with the concurrence of the parties) reserved questions of law for determination by this Court, pursuant to s 302 of the Criminal Procedure Act 2009.[2] If I may say so respectfully, this is precisely the kind of threshold issue, going to the very foundation of the criminal proceedings, for which the case stated procedure is peculiarly appropriate.[3]
[2]The full text of the questions appears in [103] below.
[3]R v Wei Tang (2009) 23 VR 332, 333 [5].

The defendants’ contention rests on the provisions of the Road Management Act 2004 (the ‘RMA’). Downer relies principally on s 5(1) of the RMA, which provides that in the event of an inconsistency between the RMA and any other Act ‘in relation to the performance of a road management function’, the provisions of the RMA prevail. There is said to be a relevant inconsistency between the RMA and the OHSA. VicRoads adopts that argument but its principal contention is that, because the RMA deals exhaustively with its road management functions as a ‘road authority’, any application of the OHSA to the performance of those functions is impliedly excluded.

If correct, the defendants’ contention would have surprising consequences. First, it would mean that, although the OHSA applies to each defendant (in its capacity as an employer) in respect of every other workplace which it controls, the OHSA has no application to this particular type of workplace, an ‘on road’ workplace. Secondly, it would mean that the maximum penalty to which each defendant was exposed in respect of this accident was 60 penalty units ($7,328.40), rather than the maximum of 9,000 penalty units ($1,099,260[4]) applicable to the OHSA offences with which they have been charged.
[4]Calculation based on the value of a penalty unit at the time of the offence ($122.14).

So improbable are these consequences that the defendants’ argument would have been expected to be supported both by an unambiguous statement of legislative intention (to treat this class of workplaces differently from all other workplaces) and by a clearly-articulated rationale for that differential treatment. The defendants could not, however, point to any such statement of legislative intention, nor could they articulate any such rationale.

As will appear, nothing in the provisions of either the RMA or the RSA suggests that Parliament intended to exempt on-road workplaces from the general scheme which governs workplace safety. The tenor of the provisions is entirely to the contrary effect. In order to explain this conclusion, however, it will be necessary to set out lengthy extracts from both the RMA and the RSA. (Unless otherwise indicated, the text of the provisions is set out in the Appendix to these reasons.) Only by this means can the Court perform its task of construing in context the specific provisions on which the defendants rely.

But the essential steps in the analysis can be set out, as follows:

1.The RMA was enacted to establish a comprehensive statutory scheme for road management in Victoria.
2.The OHSA was enacted to maintain (with modifications) the comprehensive statutory scheme for workplace safety in Victoria established by the Occupational Health and Safety Act 1985.
3.There is nothing in the language of the RMA to suggest that the legislature intended to exempt on-road workplaces from the coverage of the OHSA.
4.There is nothing in the scheme of road management which the RMA establishes, or in the road management functions which it confers, which suggests that the proper discharge of those functions would have necessitated such an exemption.
5.There is nothing about such workplaces, or the safety risks associated with them, which would require their exclusion from the OHSA.
6.The provision said to govern the conduct of road works is not, in any case, a provision of the RMA at all. It is a provision of the RSA.
7.On its own terms and understood in the context of that Act, s 99A is a provision concerned with road safety, that is, with the risks arising from road use in proximity to road works.
8.There is no inconsistency, and no incompatibility, which affects the application of the OHSA to the conduct in question.

Statutory basis of the asserted inconsistency

The RMA was assented to on 11 May 2004. Its substantive provisions came into force the following day. Later in 2004, Parliament enacted the OHSA. That Act was assented to on 21 December 2004 and the relevant provisions came into force on 1 July 2005.

The character and purpose of the RMA appear from ss 1 and 4. The purpose of the Act is stated in s 1(1) as being ‘to reform the law relating to road management in Victoria and to make related amendments to certain Acts’. According to the ‘Outline’ provided by s 1(2), the Act:

·‘establishes a new statutory framework for the management of the road network’; and
·‘establishes the general principles which apply to road management’.

VicRoads is a statutory authority, established by operation of s 15 of the Transport Act 1983 and continued in existence by operation of s 80 of the Transport Integration Act 2010 (‘the Integration Act’). VicRoads is a ‘road authority’ for the purposes of the RMA and has the powers and functions set out in div 2 of pt 4 of the Act.[5] Section 37 of the RMA identifies the categories of road for which VicRoads is ‘the responsible road authority’.
[5]See [50] below.

In performing the VicRoads contract, Downer was acting as a ‘works manager’, that term being defined to mean:

any person or body that is responsible for the conduct of works in, on, under or over a road.[6]

The term ‘works’ is in turn defined to include, relevantly,
any kind of activity conducted on or in the vicinity of a road … in connection with the construction, maintenance or repair of the road …

[6]RMA s 3.

Central to the defendants’ argument is the definition of ‘road management function’ in s 3 of the RMA, as follows:

a function, power or duty conferred or imposed on—
(a)       a road authority by or under—
(i)        this Act;
(ii)       the Road Safety Act 1986;

…
(b)a utility, provider of public transport, infrastructure manager or works manager by or under this Act.[7]

[7]Emphasis added.

Each defendant contends that its discharge of the duty imposed by s 99A of the RSA constituted the performance by it of a road management function. In the case of VicRoads, the s 99A duty is imposed on it by the RSA and therefore falls squarely within para (a)(ii) of the definition of ‘road management function’. (As noted earlier, however, the principal argument for VicRoads is directed at para (a)(i) of the definition, that is, at the road management functions conferred on it by the RMA itself.[8])
[8]See [73]–[78] below.

The argument for Downer was, of necessity, more elaborate. As appears from para (b) of the definition of ‘road management function’,[9] Downer had to establish that the s 99A duty was imposed on it ‘by or under’ the RMA itself. Downer relies for this purpose on s 48 of the RMA, which provides as follows:
[9]RMA s 3.

48Specific duties and powers in relation to infrastructure and works on roads
(1)Without affecting any other duties, an infrastructure manager or works manager has the duties set out in Part 1 of Schedule 7.
(2)The duties set out in Part 1 of Schedule 7 apply to a person who is responsible for a non-road activity to which section 99B of the Road Safety Act 1986 applies in relation to the use of the road for the event as if the person were a works manager.
(3)Without limiting any other powers of a coordinating road authority, a coordinating road authority has the powers set out in Part 2 of Schedule 7.
(4)A relevant responsible road authority must comply with the requirements of the coordinating road authority made in the exercise of the powers set out in Part 2 of Schedule 7.
(5)Schedule 7 has effect.

Clearly enough, s 48(1) imposed on Downer as ‘works manager’ the duties set out in sch 7 to the Act. The content of that schedule will be examined in detail below[10] but it suffices for present purposes to set out cl 3, which provides as follows:
[10]See [67]–[68] below.

3 Duty to have traffic management plan
An infrastructure manager or works manager must comply with—
(a) any requirements in relation to the safety of road users; and
(b) section 99A of the Road Safety Act 1986.

The combined effect of s 48(1) and cl 3(b), so Downer contends, is that the RMA itself imposes on Downer an obligation to discharge the safety duty under s 99A. As a result, it is contended, a failure to comply with s 99A would have two distinct consequences for Downer, as follows:

(a) the company would be exposed to criminal liability under s 99A itself; and

(b) it would have failed to comply with cl 3 of sch 7 to the RMA.

According to the argument, cl 3 of sch 7 thus imposed on Downer a duty to ensure the safety of workers in an on-road workplace which was inconsistent with the safety duties imposed on it by the OHSA in respect of employees working in such a workplace. This inconsistency, it is said, engages s 5(1) of the RMA, which provides as follows:

Subject to this section, if there is an inconsistency between this Act and any other Act in relation to the performance of a road management function, the provisions of this Act prevail.[11]

[11] RMA s 5(1).

Downer’s argument may therefore be summarised as follows:

·section 48(1) of the RMA imposes on Downer (via cl 3 of sch 7) a duty to comply with s 99A;
·compliance with s 99A being a duty imposed ‘by or under this Act’, it falls within the definition of ‘road management function’;
·accordingly, in managing road works in compliance with s 99A, Downer is performing a road management function;
·there is an inconsistency between the RMA and the OHSA ‘in relation to the performance of a road management function’ because the Acts impose different safety duties with respect to the same workplace; and
·the provisions of the RMA — imposing the s 99A duty on Downer — must therefore prevail over the provisions of the OHSA.

What counsel for VicRoads described as its ‘broader’ argument for inconsistency concentrated on the character of the legislative scheme created by the RMA, and on the particular position of VicRoads as a road authority. As to the first, it was submitted that the RMA was ‘an elaborate and exhaustive scheme’ governing the performance of road management functions. Relying by analogy on the analysis in Ferdinands v Commissioner for Public Employment,[12] VicRoads contended that the ‘exhaustiveness’ of the RMA with respect to that subject matter carried with it the necessary implication that other Victorian legislation, which might otherwise have applied to its discharge of road management functions, was displaced.
[12](2006) 225 CLR 130 (‘Ferdinands’).

The intention to deal exhaustively with road management functions — and hence to exclude other potentially applicable legislation — was said to be evident from the provisions of pt 4 of the RMA which define the powers, duties and functions of a road authority, and more particularly from:

·section 39, which permits a road authority to make
a policy or policy decision relating to the performance of a road management function;
and
·sections 24, 25 and 28, authorising the making of Codes of Practice, which provide guidance to a road authority in relation to:
(a) the performance of road management functions;
(b) the standards which may be adopted or developed;
(c)the conduct of works under this Act or section 99A of the Road Safety Act 1986;[13]

[13]RMA s 25(1).

The full text of s 39 is set out in the Appendix. VicRoads relies specifically on s 39(5), which provides as follows:

For the purposes of any proceedings, unless a policy or policy decision made by a road authority is so unreasonable that no road authority in that road authority’s position acting reasonably could have made that policy or policy decision, any decision or standard which is a policy or policy decision relating to the exercise of a road management function by the road authority is to be taken to satisfy the statutory duty and any common law duty of the road authority in relation to the exercise of that road management function.
Note
Section 27 enables a relevant Code of Practice to be used as evidence of the reasonableness of a road management plan.

According to the submission for VicRoads, the intent of this provision was that (subject only to Wednesbury unreasonableness[14]) any ‘policy or policy decision’ made by VicRoads relating to its ‘exercise of a road management function’ was to be taken to satisfy ‘the statutory duty’ imposed on it by the OHSA in relation to the exercise of that function. I deal with this argument separately below.[15]
[14]This is a reference to the public law test of unreasonableness, taken from the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223: see further [85]–[86] below.
[15]See [80].

VicRoads also relied on what was said in Brodie v Singleton Shire Council[16] about the position of a ‘highway authority’. That case concerned the so-called ‘non-feasance rule’, a common law rule concerning the civil liability of a public authority responsible for the care and management of a highway. VicRoads relied on the following passage from the judgment of Gleeson CJ:

The problem which the rule addresses is one particular aspect of the wider problem of the manner in which the law should relate the public responsibilities of persons or bodies invested by statute with a power to manage public facilities, which include the responsibility to apply public funds for that purpose, and the rights of citizens who may be affected by the manner in which those responsibilities are exercised. The resolution of that problem, in varying circumstances, is usually the result of the combined effect of legislation and the principles of the common law. A recent example of the way in which the problem may arise in a novel situation is Crimmins v Stevedoring Industry Finance Committee.

We are here concerned, not with a novel situation, but with one that has a long history. In earlier times, the question of the responsibility of highway authorities to maintain and repair roads, bridges and paths, and the forms of accountability to which they were subject, which may be legal or political, sometimes arose in the context of potential criminal liability, or gave rise to issues as to forms of action, or the identity of parties to civil proceedings. In more recent times, the question is usually considered in terms of the existence and scope of a duty of care. This change reflects more general trends in the development of legal principle.
But the underlying problem remains the same: it is a problem of responsibility, and of the appropriate form of accountability. The problem has both legal and political dimensions. The highway is one of the most common occasions of injury to person or property. The rights and liabilities which exist as between users of the highway are the subject of extensive legislative regulation in most Australian jurisdictions. Issues of road safety are of public concern. Programmes of road maintenance and improvement constitute a major form of the application of public funds.
The question of the circumstances in which a public authority, with a statutory power to construct, maintain, repair and improve public roads, will be liable to be sued by a road user who suffers harm in consequence of the state of a road, is one in which, inevitably, legislatures are closely concerned.[17]

[16](2001) 206 CLR 512 (‘Brodie’).

[17]Ibid [12] (citations omitted) (emphasis added).

Oral argument on behalf of VicRoads began with the proposition that, in pursuing their statutory objectives, public authorities were ‘placed in a difficult position because of limited budgets using public moneys’. Such financial constraints were said to give rise to ‘difficult policy choices and judgements that are a matter of discretion’. VicRoads was said to be in ‘a special position’ in this regard because it was a road authority. The RMA had been enacted, so it was contended, to ‘ameliorate the decision in Brodie’ and, specifically, to give road authorities the power to make policy which would (in the language of s 39(5)) ‘satisfy the statutory duty’.

Before addressing these arguments in detail, it is necessary to set out more fully the structure and content of the RMA.

A legislative scheme for road management

As originally enacted in 2004, s 4(1) of the RMA defined the ‘primary object’ of the legislation as being:

to establish a coordinated management system that will promote safe and efficient road networks at State and local levels …[18]

When the Integration Act was enacted in 2010, s 4(1) was amended so that it now reads as follows:
to establish a coordinated management system that will promote a road network at State and local levels that operates as part of an integrated and sustainable transport system consistent with the transport system objectives under the [Integration Act] …[19]

[18]Emphasis added.

[19]Emphasis added. The full text of s 4(1) is set out in the Appendix.

The ‘transport system objectives’ referred to here are those set out in div 2 of pt 2 of the Integration Act. The purpose of that Act was stated to be

to create a new framework for the provision of an integrated and sustainable transport system in Victoria consistent with the vision statement.[20]

The ‘vision statement’ is set out in s 6 of the Integration Act, in these terms:
The Parliament recognises the aspirations of Victorians for an integrated and sustainable transport system that contributes to an inclusive, prosperous and environmentally responsible State.

[20]Integration Act s 1.

The transport system objectives laid down by the Integration Act fall into six categories, as follows:

(c) social and economic inclusion (s 8);

(d) economic prosperity (s 9);

(e) environmental sustainability (s 10);

(f) integration of transport and land use (s 11);

(g) efficiency, coordination and reliability (s 12); and

(h) safety and health and well-being (s 13).

Of these, the only objective which is relevant for present purposes is the last, which is a transport safety objective. As s 13 of the Integration Act makes clear, the objective is to make the transport system safe:

13 Safety and health and wellbeing
(1) The transport system should be safe and support health and wellbeing.
(2) Without limiting the generality of subsection (1), the transport system should—
(a)seek to continually improve the safety performance of the transport system through—
(i) safe transport infrastructure;
(ii) safe forms of transport;
(iii) safe transport system user behaviour;
(b)avoid and minimise the risk of harm to persons arising from the transport system;
(c)promote forms of transport and the use of forms of energy which have the greatest benefit for, and least negative impact on, health and wellbeing.

As can now be seen, the primary object of the RMA was to establish a road management system which would promote a road network operating consistently with the transport system objectives. Of those objectives, the only one concerned with safety was directed at transport safety, that is, the safety of those who use the transport system — in this case, the road transport system — or who may be affected by its use. Unsurprisingly, the transport system objectives make no mention of occupational health and safety. Indeed, as counsel for VicRoads acknowledged, there is no reference to workplace safety anywhere in the RMA. There are, on the other hand, repeated references to road safety and the safety of road users.[21]
[21]See ss 4(2)(b), 20(2)(a), 34(1)(b) and (c), 34(3)(b), 38(2)(c)(iii), 38(2)(d)(i), 119(1)(a), 120(1).

Introducing the Road Management Bill in 2004, the responsible Minister said that its main purpose was

to provide a legal framework for the management of the public road network that helps communities, through the democratic process, to determine and implement sound road management policies and practices.[22]

[22]Victoria, Parliamentary Debates, Legislative Assembly, 4 March 2004, 289 (Robert Cameron).

The Minister pointed out that the first part of the Bill dealt with the rights of road users. He then said:

With rights go responsibilities. The bill also proposed to amend the Road Safety Act 1986 to insert a new section 17A that will spell out the general duties of road users, drivers, riders and pedestrians. The responsibilities include travelling safely having regard to road, weather and traffic conditions, and avoiding unreasonable risks to other road users.[23]

I deal with s 17A of the RSA later in these reasons.

[23]Ibid.

Section 4(2) of the RMA sets out what is, in effect, a table of contents for the Act. The full text is set out in the Appendix. Again, the long and exhaustive list of topics in s 4(2) contains no reference to workplace safety. Nor would any such reference have been expected, given that the RMA is concerned with road management and the promotion of ‘safe and efficient public roads’.[24]
[24]RMA s 4(2)(b).

Part 4 of the RMA is entitled ‘Management of roads’. Division 1 of pt 4 deals with the ‘Coordination of road management’. Section 20 is headed ‘Principal object and management principles’. Its full text is set out in the Appendix.

Several points should be noted about s 20. First, sub-s (1A) reiterates that the principal object of road management — that is, managing the road network — is to be effectuated consistently with the transport system objectives, to which reference has already been made. Secondly, sub-s (2) lays down principles which are to apply ‘in respect of the management of works’ under the RMA. The first such principle is ‘the minimisation of road safety hazards’. Once again, the sole safety concern is road safety. Unsurprisingly, no reference is made to workplace safety.

Thirdly, the principles laid down by sub-s (2) are defined in s 3 of the RMA as the ‘works and infrastructure management principles’ (the ‘works principles’). As will appear, those principles are directly relevant to s 48 of the RMA, that being the provision which provides the link from the RMA to s 99A of the RSA on which Downer relies. I deal with this further below.[25]
[25]See [66] below.

It is also significant that the works principles are expressed to govern the performance of road management functions by a road authority.[26] As already noted, only one of those principles is concerned with safety, and it is a road safety principle.
[26]RMA s 33: see [50] below.

The works principles are also incorporated by reference into that part of the RMA which makes provision for the making of ‘Codes of Practice’. The relevant provisions are ss 24, 25 and 27, the full text of which is set out in the Appendix.

One of the attachments to the Case Stated is a Code of Practice entitled ‘Worksite Safety — Traffic Management’[27] (‘the Roadworks Code’). Because this Code relates to ‘works on roads’, s 24(2) of the RMA requires that it give effect to the works principles. Clauses 1 and 2 of the Roadworks Code are in these terms:
[27]Victoria, Gazette: Road Management Act 2004 – Code of Practice – Workplace Safety – Traffic Management, No S 351, 31 August 2010.

1. Purpose of Code
(1)The purpose of this Code of Practice is to provide practical guidance to any person conducting, or proposing to conduct, any works on a road in Victoria.

(2) This Code is intended to:
(a)establish and maintain a standardised approach to the conduct of works on roads (whether on the roadway or roadside) that protects the safety of road users and persons engaged in the carrying out of such works;
(b)establish a hazard based assessment of worksite conditions to enable the identification and implementation of appropriate control measures to ensure a safe worksite;
(c)support the planning for, and management of, traffic to pass safely through, past or around a worksite, including the preparation and implementation of a traffic management plan; and
(d)support the engagement of appropriately trained and qualified persons to carry out the works or direct traffic.

2. Authorising provisions
This Code of Practice is made under section 28 of the Road Management Act 2004 and section 99A of the Road Safety Act 1986.[28]

[28]Emphasis added.

As can be seen, the objective of the Roadworks Code is to ensure that works on roads are carried out in a way that ‘protects the safety of road users and persons engaged in the carrying out of such works’. This formulation of the safety objective mirrors the language of s 99A(2) (set out in the Appendix). Like that subsection, the Roadworks Code is addressing the distinctive risks to which works on roads give rise, that is, the risks which result from the conduct of works in close proximity to passing traffic. Crucially, these are road safety risks, that is, risks associated with road use.

Because road works create a hazard for passing traffic, and because passing traffic creates a hazard for road workers, the safety duty is expressed as being owed both to road users and to workers. More particularly, the nature of these two-way risks explains why both the Roadworks Code (para 1(c)) and the RSA (s 99A(3)(a)) require that there be a traffic management plan in operation in connection with such works. The content of such a plan is prescribed in detail by the Road Safety (Traffic Management) Regulations 2009. Consistently with the foregoing analysis, one of the matters which under the Regulations must be addressed in the formulation of a traffic management plan is ‘the clearance between traffic on the road … and persons conducting … the relevant activity.’[29]
[29]Road Safety (Traffic Management) Regulations 2009 reg 32(2)(e).

The override provision in s 5(1)

The RMA was thus intended to establish a comprehensive statutory framework for the road network as part of Victoria’s transport system. To that end, the Act included a series of interpretive provisions designed to ensure that the provisions of the RMA would override any conflicting provisions in other Victorian legislation.

Subsection 5(1) was one of those interpretive provisions. In the relevant part, s 5 provides as follows:

5 Interpretation and application of Act
(1)Subject to this section, if there is an inconsistency between this Act and any other Act in relation to the performance of a road management function, the provisions of this Act prevails.
(2)If a road authority is a municipal council, the provisions of section 3E, Division 2 of Part 9 and Schedules 10 and 11 of the Local Government Act 1989 apply and are to be construed for the purposes of this Act as if those provisions formed part of this Act.
(3)If the road authority is VicRoads, the provisions of the Transport Integration Act 2010 and the Transport (Compliance and Miscellaneous) Act 1983 relating to VicRoads are to be construed as being in addition to and not in derogation from the provisions of this Act.
(4)This Act applies to infrastructure managers and works managers in relation to the installation of non-road infrastructure on roads despite the provisions of any other Act or law to the contrary.
(5)The Building Act 1993 does not apply to, or in respect of, any infrastructure or structure on, over or under, land or a stratum that forms part of a road unless the infrastructure or structure—
(a)is installed or constructed on adjacent land and extends over, onto or under the road; or
(b)is a building on an ancillary area or roadside.

Examples
The Building Act 1993 does not apply to structures such as bridges, culverts and tunnels that form part of the road itself.
The Building Act 1993 does apply to structures such as a hotel balcony or a shop verandah that extends over a footpath, a building that straddles a road or that is beneath an elevated road or bridge or above a road tunnel.
The Building Act 1993 does apply to structures such as a toilet block, bus shelter, shed or control booth on a roadside area or on an ancillary area.
(6)This Act does not affect the application to any roadside area of any other Act or law relating to the management of land.
Example

Section 20(2) of the Catchment and Land Protection Act 1994 which provides that a land owner must take all reasonable steps to prevent the spread of regionally controlled weeds and established pest animals on a roadside that adjoins the land owner's land is not affected by this Act.[30]

[30]The remainder of s 5 has been omitted, as it deals with legislation concerned with particular roads.

The plain legislative purpose of s 5(1), in my view, was to ensure that the RMA operated as intended, as a comprehensive code for road management which both defined and allocated road management functions and governed their performance. To the same end, s 5(3) was designed to ensure that the provisions of specified transport legislation did not derogate from the provisions of the RMA which defined the functions of VicRoads as a road authority; and s 5(4) was designed to ensure the paramountcy of the provisions of the RMA governing the installation on roads of ‘non-road infrastructure’. In other words, these were safeguards designed to maintain the coherence — and ensure the integrity — of the RMA as ‘a new statutory framework for the management of the road network’.[31]
[31]RMA s 1(2).

In considering how an inconsistency might arise ‘in relation to the performance of a road management function’, it is instructive to examine the provisions of the RMA which define the role and function of a road authority. Sections 33 and 34 provide as follows:

33 Role of a road authority
A road authority must in performing road management functions have regard to the principal object of road management and the works and infrastructure management principles.

34 General functions
(1)A road authority has the following general functions—
(a)to provide and maintain, as part of a network of roads, roads for use by the community served by the road authority;
(b)to manage the use of roads having regard to the principle that the primary purpose of a road is to be used by members of the public and that other uses are to be managed in a manner which minimises any adverse effect on the safe and efficient operation of the road and on the environment;
(c)to manage traffic on roads in a manner that enhances the safe and efficient operation of roads;
(ca)to design, construct, inspect, repair and maintain roads and road infrastructure;
(d)to coordinate the installation of infrastructure on roads and the conduct of other works in such a way as to minimise, as far as is reasonably practicable, adverse impacts on the provision of utility or public transport services;
(e)to undertake works and activities which promote the functions referred to in paragraphs (a), (b), (c) and (ca) and to undertake activities which promote the function in paragraph (d).

Uncontroversially, s 5(1) would operate to override any provision elsewhere in Victorian law which might otherwise prevent the road authority from performing its functions in the manner — and for the purposes — specified in the RMA. For example, s 5(1) would override provisions in other legislation which conflicted with the obligation of the road authority to perform its road management functions:

·having regard to the works principles (s 33); and
·having regard to the principle that the primary purpose of a road is that it is to be used by members of the public (s 34(1)(b)).

Therein lies the explanation for the enactment of s 5(1). There is nothing in the RMA as a whole, nor in s 5(1) itself, to suggest that the legislature intended to oust the provisions of legislative schemes wholly unrelated to road management, such as schemes for the regulation of environmental protection[32] or — relevantly for present purposes — of workplace safety. Nor is there anything in the character or purpose of the road management functions themselves which would have necessitated the exclusion of such (unrelated) legislative schemes.
[32]See eg Environment Protection Act 1970.

The enactment of s 99A

Part 8 of the RMA was headed ‘Amendment of other Acts’.[33] Division 1 dealt with amendments to the Transport Act 1983. Divisions 2 and 3 dealt with amendments to the RSA. Several significant amendments were made to that Act.
[33]Part 8 of the RMA was repealed by Transport Legislation (Further Miscellaneous Amendments) Act 2005.

First, s 138 of RMA inserted a new s 17A into the RSA. That provision imposes road safety obligations on all road users. Thus, s 17A(1) provides that

[a] person who drives a motor vehicle on a highway must drive in a safe manner having regard to all relevant factors …[34]

Section 17A(2) makes the same provision in relation to all other road users. And, under s 17A(3)(a), every road user must
have regard to the rights of other users and take reasonable care to avoid any conduct that may endanger the safety or welfare of other road users …[35]

[34]Emphasis added.

[35]Emphasis added.

Section 141 of the RMA inserted new ss 99A and 99B into RSA. (The text of those sections is set out in the Appendix). As can now be seen, the duty (and the corresponding offence) created by s 99A are sui generis. They stand alone. Together with s 99B, s 99A is found in pt 8 of RSA, headed ‘General’, which contains an assortment of unrelated provisions. Thus, s 99A appears alongside provisions dealing respectively with delegation, disclosure of information, limitation of the Supreme Court’s jurisdiction, and the regulation-making power.

The text of s 99A makes it quite clear why this provision was inserted into the RSA. In short, it is a provision directed at promoting road safety. (The first of the listed purposes of the RSA is ‘to provide for safe, efficient and equitable road use’.)[36] Several points should be noted about s 99A. First, the section applies only to works (or non-road activity) to be carried out on a highway. The respective definitions of ‘highway’ and ‘road’ in the RSA are set out in the Appendix. Reference to these definitions makes clear that the provision is confined to the carrying out of works (or the conduct of activities) on existing roads. It has no application to works for the construction of a new road.
[36]RSA s 1(a).

Secondly, the duty created by sub-s 2 is to ensure that the works or activities

are conducted in a manner that is safe for road users and persons engaged in carrying out the works or … activities.

Plainly enough, s 99A contemplates that the road will continue to be used — and hence there will be ‘road users’ — while the road works are being carried out. The first duty under s 99A(2) is to ensure that the works are carried out safely for road users. The companion duty is to ensure that the workers are also safe.

The context makes clear, in my view, that the second limb of s 99A is directed at protecting workers against the (well-known) risk from road users who drive in proximity to the works. That flows from the imposition of a single duty embracing road users and workers equally. That s 99A is concerned with dangers to (and from) road users is reinforced by sub-s 3, which makes clear that discharge of the safety duty requires that there be (in every case):

(i) a traffic management plan; and

(j) appropriate warnings to road users.

Thus, when s 99A is construed on its own terms and in the context of the RSA, it is apparent that it is not a provision about workplace safety. It is a provision about road safety, designed to ensure that in the planning and execution of these works, proper attention is paid to the safety of both road users and road workers.

Thirdly, this characterisation of s 99A is reinforced by the fact that there is nothing in the RMA (or the RSA) dealing with safety risks for workers who are building new roads. That is doubtless because there are no ‘road users’ when a road is under construction, and hence no road safety risk arises. It is not possible to conceive of any rationale which might explain a legislative decision to treat workplace safety for workers doing road repairs as exclusively governed by s 99A, while leaving the safety of road construction workers to be governed by the OHSA.

The provisions of s 99B are also relevant. Under s 99B(1), the coordinating road authority may issue a permit to a person to conduct a ‘non-road activity’ on a highway. The ‘Example’ at the conclusion of s 99B is as follows:

A non-road activity would include the use of a road for the shooting of a film, a bicycle event, a street festival or a street market.

Under s 99B(6), a person to whom such a permit is issued is responsible for the use of the highway for the non-road activity.

As noted earlier, s 48(1) of RMA imposes on a works manager the duties in pt 1 of sch 7, in particular the duty to comply with s 99A. Importantly, s 48(2) imposes exactly the same duties on a person who is responsible for a non-road activity to which s 99B applies.

In other words, if a local council were holding a street market and had received a permit for that ‘non-road activity’, it would be in the same position as a works manager.[37] That is, the council would be under the safety duty imposed by s 99A and would have to ensure that the market was conducted in a manner that was safe for road users and for persons engaged in the market activity.
[37]See also RMA s 48(2).

The imposition of the mirror obligation under s 99B reinforces the conclusion that s 99A is not about workplace safety. Rather, it is about the specific issue of ensuring safety when works (or non-work activities) are carried out on a road which continues to be used by road users.

There is a further point. Section 48 appears in div 4 of pt 4 of RMA. As appears below, s 47 states that the purpose of that division is to give effect to the works principles. As noted earlier, the only relevant principle is the first in the list, namely ‘the minimisation of road safety hazards’. The other principles are concerned with avoiding or minimising damage to roads and disruption to road building. In other words, apart from road safety hazards, the relevant principles are concerned with maximising efficiency.

Once this is understood, it can be seen that s 48 — in imposing the s 99A duty — was enacted to give effect to the relevant works principle, being the minimisation of road safety hazards.

Is there a relevant inconsistency?

Before s 5(1) is engaged, it is necessary to identify a provision of the RMA which is inconsistent with the OHSA provisions. As noted earlier, the argument advanced by Downer for this purpose relies on of s 48 of RMA and sch 7 to the Act. Sections 47 and 48 together make up div 4, as follows:

47 Purpose of Division
The purpose of this Division is to give effect to the works and infrastructure management principles.
48 Specific duties and powers in relation to infrastructure and works on roads
(1) Without affecting any other duties, an infrastructure manager or works manager has the duties set out in Part 1 of Schedule 7.
(2) The duties set out in Part 1 of Schedule 7 apply to a person who is responsible for a non-road activity to which section 99B of the Road Safety Act 1986 applies in relation to the use of the road for the event as if the person were a works manager.
(3) Without limiting any other powers of a coordinating road authority, a coordinating road authority has the powers set out in Part 2 of Schedule 7.
(4) A relevant responsible road authority must comply with the requirements of the coordinating road authority made in the exercise of the powers set out in Part 2 of Schedule 7.
(5)Schedule 7 has effect.

Schedule 7 of the RMA is headed ‘Infrastructure and works on roads’ and pt 1 is headed ‘Specific duties of infrastructure managers or works managers’. Downer relies only on cl 3(b) of sch 7 but, of necessity, regard must be had to other provisions of sch 7 in order to ascertain the character of the provision and the nature of the legislature’s concern. The text of cls 1 to 6 of that schedule is set out in the Appendix, together with the text of cl 14 which is incorporated by reference into cl 1.

As noted earlier, Downer’s argument under s 5(1) is that the RMA (through s 48(1) and sch 7) imposes on it a safety duty inconsistent with its duties under the OHSA. In my opinion, Downer’s argument fails at the threshold. Self-evidently, sch 7 is not concerned with occupational health and safety. It is concerned with the efficient management of works on roads and with minimising disruption to road users. The latter objective is repeated three times in cl 14.[38] It is true that cl 3(b) requires compliance with s 99A (with its dual safety duty to road users and road workers) but the Schedule itself speaks only of ‘the safety of road users’. That objective is specified in three separate places.[39]
[38]See RMA sch 7 pt 2 cls 14(2), 3(c) and (ca).
[39]RMA sch 7 cls 3(a), 14(3)(d) and (e).

Put simply, there is no inconsistency between:

(k) the provisions of the RMA (s 48 and sch 7) which impose on Downer, in its capacity as a works manager, the obligation to ensure that road works are carried out in a manner that is safe both for road users and for the workers involved; and

(l) the provisions of the OHSA (ss 21 and 23) which impose on Downer, in its capacity as an employer, an obligation to provide a safe workplace for its workers and to ensure that the conduct of its undertaking does not create risk for persons other than employees.

In short, the safety duties are wholly consistent with one another. To be precise, the obligation to comply with the OHSA duties does not conflict with or impair in any way the obligation of the works manager to comply with the safety obligation imposed by s 99A.

There is a further flaw in the s 5(1) argument which, as counsel for the Director pointed out, is fundamental. Although s 48(1) of the RMA has the effect of requiring a works manager to comply with s 99A, it is not that provision which exposes a works manager to criminal liability for breach of the duty. It is s 99A, and that provision alone, which makes non-compliance with the duty an offence. Counsel for both defendants conceded that this was so. Thus, even if (contrary to my view) there were an inconsistency between the offence provision in s 99A and the offence provisions in the OHSA, that would not be an inconsistency to which s 5(1) would have any application, since it would not be an inconsistency involving any provision of the RMA.

In their arguments on inconsistency, both defendants highlighted the fact that the duty imposed by s 99A of the RSA was unqualified, that is, it requires a works manager simply to ensure that road works are carried out ‘in a manner that is safe’, whereas the relevant duties imposed by the OHSA are qualified by the words ‘so far as reasonably practicable’. That the former duty is, to that extent, stricter than the latter does not give rise to any inconsistency. Nor does the fact that the existence of parallel safety duties gives prosecutors a choice of provisions on which to rely. As more fully explained in the reasons of Weinberg JA, the co-existence of a summary offence and an indictable offence applicable to the same subject matter is a commonplace.[40]
[40]Interpretation of Legislation Act 1984 (Vic) s 51(1); R v Chalak [1983] 1 NSWLR 282, 285; Lawson v Gault (2002) 125 FCR 1, 7–8 [21]–[22]; Magaming v The Queen (2013) 252 CLR 381, 391 [25]–[26].

The ‘special position’ of VicRoads as a road authority

I referred earlier to the arguments advanced separately on behalf of VicRoads, to the effect that:

(m) the RMA was an ‘exhaustive’ scheme governing the performance by VicRoads of its road management functions, such that the Parliament is to be taken to have intended to exclude any other legislative provision capable of applying to the performance of those functions; and

(n) because of the difficulties faced by a road authority in meeting its statutory obligations with limited funds, s 39(5) of the RMA was enacted to enable VicRoads to make ‘policy and policy decisions’ which would be deemed to satisfy the ‘statutory duty’.

I deal first with the argument about exhaustiveness. This is, in truth, an argument of implied repeal, as the High Court made clear in Ferdinands.[41] In other words, VicRoads must establish that, although there is no statement by the legislature that the RMA should apply to the exclusion of the OHSA, that intention is nevertheless manifested by necessary implication.[42] To be precise, the necessary implication is said to be that the RMA impliedly repealed pro tanto the Occupational Health and Safety Act 1985 (Vic), that being the legislation which was in force when the RMA was enacted.
[41](2006) 225 CLR 130.
[42]Ibid 134 [4].

As counsel for the Director pointed out, however, there is a very strong presumption against implied repeal. Implied repeal

requires that actual contrariety be clearly apparent and that the later of the two provisions be not capable of sensible operation if the earlier provision still stands.[43]

Counsel for the Director also pointed out that the court in Ferdinands endorsed the following statement by Gaudron J in Saraswati v The Queen:[44]

It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. See Butler v Attorney-General (Vict).[45]

[43]Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, [48].

[44](1991) 172 CLR 1, 17.

[45]See Ferdinands (2006) 225 CLR 130, 134 [4], 146 [48].

Ferdinands was a very different case from the present. The court was there considering the respective provisions of the Police Act 1998 (SA) and of the Employee Relations Act 1994 (SA). The former dealt (relevantly) with the powers of the Commissioner of Police to terminate a police officer’s employment. The latter was a general scheme dealing with the termination of employment.

By majority, the High Court concluded that the provisions of the Police Act 1998 (SA) were intended to deal comprehensively — exhaustively — with the Commissioner’s power of termination, such that the legislature should be taken to have intended to exclude the application of the wrongful dismissal provisions of the Employee Relations Act 1994 (SA) to the Commissioner’s exercise of power. In the view of Gummow and Hayne JJ, the provisions of the former dealing with termination ‘explicitly or implicitly contradicted’ the wrongful dismissal provisions of the latter.[46]
[46]Ibid [57].

Enough has been said already about the content and character of the RMA to demonstrate that the VicRoads contention cannot be sustained. In direct contrast with the position in Ferdinands, there is no subject-matter overlap of any kind between the RMA and the OHSA. The OHSA is about — and only about — workplace safety. The RMA is about — and only about — road management. It says nothing about workplace safety. As has been pointed out, the only safety concern made explicit in the RMA is a concern with road safety,[47] which explains the cross-reference (via sch 7) to s 99A of the RSA.
[47]RMA s 20(2)(a); see [40] above.

The contention that the RMA is exhaustive of the obligations of VicRoads with respect to road management functions fails because the RMA does not address itself to workplace safety. The RMA and the OHSA are capable of concurrent application (as the reasons of Weinberg JA further demonstrate).

‘A policy or policy decision’: the s 39(5) argument

VicRoads contends that:

(o) section 39(1) of the RMA authorises it to make ‘a policy or policy decision relating to the performance of a road management function’;

(p) section 39(5) deems such a policy or decision

to satisfy the statutory duty and any common law duty … in relation to the exercise of that road management function,

unless the policy or decision is vitiated by Wednesbury unreasonableness;

(q) since s 39(5) applies ‘for the purposes of any proceedings’, the making of such a policy or decision is deemed to satisfy its ‘statutory duty’ as an employer under the OHSA to ensure workplace safety, where that duty arises ‘in relation to the exercise of [a] road management function’; and

(r) accordingly, the existence of such a policy or decision would be a complete defence to criminal proceedings for breach of the OHSA duty.

This argument is wholly misconceived. Section 39(5) is a provision concerned with — and only with — civil liability. It forms part of a carefully-constructed scheme designed to limit the exposure of road authorities to liability for damages for negligence and breach of statutory duty. Not only is this objective apparent from the provisions of the RMA itself, but it was stated with unambiguous clarity in the Explanatory Memorandum which accompanied the Road Management Bill. (The full text of that part of the Memorandum dealing with cl 39 of the Bill is set out in the Appendix.)

The Memorandum clearly states that s 39 is part of a package of provisions which includes s 41, div 5 of pt 4, and s 103, and that ‘these provisions’ were intended to implement ‘the recommendations of the Ipp Report in relation to the proposed policy defence’.[48] The ‘policy defence’ is expressly provided for in s 103(b), as follows:

103 Policy defence
For the purposes of any proceeding to which this Division applies, an act or omission which is in accordance with a policy—
…
(b)determined by the relevant road authority under section 39 does not constitute a wrongful exercise or failure unless the policy is so unreasonable that no road authority in that road authority's position acting reasonably could have made that policy.
[48]Law of Negligence Review Panel, Parliament of Australia, Review of Law of Negligence: Final Report (2002) (‘The Ipp Report’).

Notes
1.One of the ways in which a road authority may determine a policy with respect to its road management functions is by a road management plan: see section 52.
2.Section 27 enables a relevant Code of Practice to be used as evidence of the reasonableness of a road management plan.[49]

[49]Emphasis added.

The relevant recommendations in the Ipp Report were made in response to that part of the Panel’s terms of reference which required it to ‘address the principles applied in negligence to limit the liability of public authorities’. The ‘problem’ which the Panel was addressing was said to be illustrated (relevantly) by the following type of case, namely:

where, for instance, a public authority (such as a highway or national park authority) is the target of a claim for personal injury or death based on alleged failure to take care to make a place, over which the authority has control, reasonably safe for users (such as motorists or picnickers).
The problem arises from the fact that the authority will have a limited budget at its disposal for the performance of its functions, and will have various calls on that budget. For this reason, it may want to argue, in answer to a negligence claim, that it made conscious, carefully considered decisions about the allocation of the budget between its various functions, and that without allocating more to the function in questions, it could not have made the relevant place any safer than it was.[50]

[50]The Ipp Report [10.2]–[10.3].

The Report continued:

The question that arises in the types of cases illustrated by our examples is whether and when a defendant should be allowed to answer a negligence claim by pleading that although it failed to take reasonable care, this was the result of a conscious and considered decision, made in good faith, on the basis of financial, economic, political or social considerations. (In this Chapter we will refer to such a plea as ‘the policy defence’).[51]

[51]Ibid [10.13].

The Panel concluded that:

… Australian law should follow the lead of English law in this respect … by providing that in a claim for negligently-caused personal injury or death against a public functionary, where the alleged negligence consists of the exercise or non-exercise of a public function, and the public functionary pleads that the failure to take precautions to avoid the relevant risk was the result of a decision about the allocation of scarce resources or was based on some other political or social consideration, liability can be imposed only if the decision was so unreasonable that no reasonable authority in the defendant’s position could have made it.[52]

[52]Ibid [10.26] (citations omitted).

The Report recommended that there be legislation to give effect to the following principle:

In any claim for damages for personal injury or death arising out of negligent performance or non-performance of a public function, a policy decision (that is, a decision based substantially on financial, economic, political or social factors or constraints) cannot be used to support a finding that the defendant was negligent unless it was so unreasonable that no reasonable public functionary in the defendant’s position could have made it.[53]

[53]Ibid [10.27], Recommendation 39 (emphasis added).

Having thus dealt with liability in negligence, the Panel then turned to address the ‘consequential issue’ of liability for breach of statutory duty. This is, of course, a familiar basis of civil liability, separate and distinct from negligence, as the Panel explained:

[B]reach of a statutory duty may, in certain cases, alternatively and independently give rise to a claim for damages based directly on the breach of the statute. Such a claim is not strictly a claim for negligence …
In principle, whether a claim for damages for personal injury or death can be based directly on the breach of a statutory duty depends on the ‘intention of the legislature’ as expressed or (necessarily) implied in the relevant statute. However, the relevant legislation typically makes no provision, either expressly or impliedly, about the availability of an action for damages for breach of its provisions. In that case, it has been accepted by courts for a very long time that the decision whether or not to allow a claim for damages to be based directly on breach of a statute is one of policy for the court to make in the light of the relevant provisions and total scheme of the statute, and of what appear to be its purposes. In effect, an independent action for breach of statutory duty will be allowed only if, in the opinion of the court, doing so would be compatible with the terms and purposes of the statute.[54]

[54]Ibid [10.41]–[10.42].

The Panel concluded that, in order to ensure the integrity of the proposed legislative scheme, the policy defence should also be available in answer to claims for breach of statutory duty:

If Recommendation 39 [the recommendation for a policy defence to negligence claims] is accepted and implemented, it may encourage plaintiffs to seek to evade its effect by making an independent claim for breach of statutory duty against a public functionary, and arguing that the claim does not fall within the scope of the provision envisaged by Recommendation 2 and, therefore, that the policy defence is not available to the public functionary. Even if such an argument would be unlikely to succeed, it seems to the Panel desirable to block this possibility for evasion of the provision in Recommendation 39.
A way of doing this would be to provide that in the absence of express provision to the contrary in the relevant statute, any claim for damages for negligently-caused personal injury or death made in the form of a claim for breach of a statutory duty would be subject to the provisions of the Proposed Act. The Panel recommends the enactment of such a provision.[55]

[55]Ibid [10.44]–[10.45].

Plainly enough, therefore, the phrase in s 39(5) ‘taken to satisfy the statutory duty and any common law duty’ was referring to statutory duty in this sense, that is, as an alternative basis for a civil claim for damages. It was not referring, and could never have been read as referring, to duties imposed by the OHSA (or by any other Victorian Act) breach of which gives rise to criminal liability.

The only statutory duty which could be relevant for this purpose is a duty imposed on a road authority in its capacity as such — presumably, therefore, a duty imposed by the RMA. An obvious candidate would be the duty imposed by the immediately succeeding provision, s 40(1), which imposes on a road authority ‘a statutory duty to inspect, maintain and repair a public road’. This is not, however, a point which needs to be decided.

Reference should also be made to the recent decision of this Court in Kennedy v Shire of Campaspe.[56] In that case, the plaintiff sued the Shire — which was the relevant road authority — for damages for negligence and breach of statutory duty. She alleged that the Shire had breached its duty under s 40(1) of the RMA to ‘inspect, maintain and repair’ roads. The court concluded that a breach of that duty had been established but that no causal link could be shown between the breach and the plaintiff’s accident. The court rejected an argument advanced by the Shire that s 39(5) could be relied on, independently of the policy defence in s 103, as an answer to the plaintiff’s claims.[57]
[56][2015] VSCA 215.
[57]Ibid [128].

Conclusion

It is true, as counsel for VicRoads argued, that the enactment of s 39(5) was responsive to the decision in Brodie.[58] But — like Brodie itself — the provision has nothing to do with the criminal law. It is concerned only with the preservation — in relation to civil liability — of a reasonable area for choice by road authorities, in relation to work undertaken in maintaining and improving roads, and has nothing to do with limiting a road authority’s safety obligations to workers undertaking road works.
[58](2001) 206 CLR 512.

It is, of course, wholly improbable that Parliament would have singled out VicRoads for an exemption from the OHSA on the basis of financial constraints. All statutory authorities are subject to financial constraints which oblige them to make choices about priorities for expenditure. Unsurprisingly, when pressed by the Court counsel for VicRoads were quite unable to explain why VicRoads would have been afforded such special treatment.

Contrast with other transport legislation

The Integration Act includes a definition of ‘transport legislation’, which comprises a long list of Acts of Parliament dealing with transport-related issues. In addition to the RMA and the RSA, the list includes the following Acts to which VicRoads drew specific attention:

·Bus Safety Act 2009;
·Marine Safety Act 2010; and
·Rail Safety (Local Operations) Act 2006 (‘Rail Safety Act’).

As their titles suggest, these three Acts are specifically concerned with safe transport — by bus, on water and by rail respectively. In marked contrast to the RMA, each of these three Acts contains a comprehensive legislative scheme for the regulation of safety in the operation and use of the particular form of transport.

The provisions of the Rail Safety Act will serve to illustrate the point. Section 1 states the main purpose of the Act as being ‘to provide for safe rail operations in Victoria’. According to s 11(1), the objects of the Act are:

to promote —
(a)       the safety of rail operations;
(b)       the effective management of safety risks in rail operations;
(c)       continuous improvement in rail safety management;
(d)      public confidence in the safety of rail transport;
(e)       the involvement of relevant stakeholders in rail safety.

Part 2 of the Rail Safety Act sets out what are called ‘principles of rail safety’. Part 3 imposes ‘rail safety duties’ on various classes of persons, including rail infrastructure managers, rolling stock operators, rail contractors and rail safety workers. Plainly enough, rail safety risks affect rail passengers, rail workers and members of the general public. So far as workers are concerned, the duties imposed by the Rail Safety Act 2006 protect ‘rail safety workers’ irrespective of the identity of their employer.

Those responsible for the Rail Safety Act 2006 evidently thought that the comprehensiveness of the rail safety scheme might convey the implication that workers protected by that scheme were not intended to enjoy simultaneously the protection of the OHSA. To eliminate any such possible implication, specific provision was made in s 101 of the Rail Safety Act 2006 to the effect that:

·if a provision of the OHSA applied to an activity which fell within the scope of the rail safety duties, the OHSA provision was to be complied with in addition to the Rail Safety Act 2006 provision; and
·in the event of any inconsistency between provisions of the OHSA and provisions of the Rail Safety Act 2006, the OHSA provisions would prevail.

The argument for VicRoads was that, there being no equivalent to s 101 in the RMA, the legislature could not have intended that the OHSA continue to apply in circumstances where a provision of the RMA (or, in this case, a provision of the RSA) applied. This argument may be disposed of shortly. As has been pointed out already, the RMA is not concerned with — and does not mention — workplace safety. Accordingly, there is no possible implication to be drawn from the RMA that workers conducting road works to which the RMA applies are to be denied the protection of the OHSA. No provision equivalent to s 101 was therefore required.

There is, in any case, no similarity in character or purpose between the legislative scheme enacted by the RMA and the individual transport safety schemes enacted with respect to bus transport, marine transport and rail transport. The former scheme is concerned with road management, each of the latter schemes is concerned with transport safety.

For completeness, reference should be made to div 4A of pt 4 of the RMA, which is entitled ‘Duties in relation to works on or near rail infrastructure’.

The tenor of these provisions is captured by s 48B, which provides:
A responsible road authority or an infrastructure manager or works manager must, when exercising a power or performing a duty under this Act on or in the immediate vicinity of rail infrastructure or rolling stock, ensure, so far as is reasonably practicable, that he, she or it exercises the power or performs the duty safely.

Nothing in the provisions of div 4A affects the foregoing analysis of the RMA. As can be seen, the safety duty in s 48B (as in the succeeding provisions of the division) is expressed in entirely general terms. Powers must be exercised, and duties performed, ‘safely’. Like OHSA duties, these duties are subject to ‘reasonable practicability’, and the penalties for breach are the same as for OHSA breaches. Obviously enough, however, these safety duties are quite different from the duties imposed by the OHSA. Unsurprisingly, therefore, div 4 contains no provision either excluding or preserving the operation of the OHSA.

The questions reserved

The questions of law which the judge reserved for determination by this Court were as follows:

1.In the facts and circumstances set out in the case stated, if the prosecution establishes the facts alleged in the written summary prosecution opening, would ss 21(1) and 2(a), ss 21(1) and (2)(e) or s 23(1) of the Occupational Health and Safety Act 2004 (the OHSA provisions) impose criminal liability on either or both accused notwithstanding:
(a) section 99A(2) of the Road Safety Act 1986;
(b) section 5(1) of the Road Management Act 2004; and/or
(c)the scheme of ‘transport legislation’ referred to in paragraph 7 of the case stated.

2.If the answer to question 1 is ‘yes’, is evidence of compliance with the ‘Code of Practice, Worksite Safety – Traffic Management’ admissible as evidence of compliance by the accused with the duties imposed by the OHSA provisions?
3.If the answer to question 1 is ‘yes’, is s 39(5) of the Road Management Act 2004 applicable in a criminal prosecution for an alleged offence against the OHSA provisions?
4.In proceedings on indictment for breaches of the OHSA provisions, is a policy or policy decision regarding the manner in which works are to be performed (made by VicRoads in accordance with the provisions of s 39 of the RMA), capable of satisfying the duties said to arise under the OHSA provisions?

For the reasons already given, the first question must be answered in the affirmative.

The second question is hypothetical and it is therefore inappropriate to answer it. Two points may, however, be made. First, evidence of any steps taken by either defendant to ensure the safety of workers at the Canterbury Road worksite would, on ordinary principles, be admissible in its defence to the OHSA charges. Secondly, there is nothing in the OHSA to suggest that compliance with a Code of Practice made under the RMA is to be taken to be compliance with OHSA duties. Codes of Practice made under the OHSA are, of course, in a quite different position.[59]

[59]See OHSA s 152.

Since s 39(5) of the RMA has no application to criminal proceedings, question 3 must be answered in the negative.

Question 4 is a hypothetical question. There are no facts in the stated case which would enable this question to be addressed. Beyond repeating that s 39(5) has no application to criminal proceedings, it is not appropriate to answer the question.

Accordingly, I would answer the reserved questions as follows:

1.        Yes.
2.        Not appropriate to answer.
3.        No.
4.        Not appropriate to answer.

WEINBERG JA:

I have had the benefit of reading, in draft, the reasons of Maxwell P. I agree that the questions reserved for determination by this Court should be answered in the manner that his Honour proposes. However, I wish to add some brief observations of my own in relation to the first of those questions.

Senior counsel appearing for the Director advanced a number of submissions in support of the contention that no relevant inconsistency or incompatibility arises between the provisions of the OHSA with which we are concerned, and the various provisions of the RSA and RMA upon which the respondents rely. In my view, those submissions are compelling, and lend further support to the conclusion that the first question must be answered in the affirmative.

Senior counsel for the Director relied upon what was said to be a fundamental proposition to the effect that the existence of overlap between criminal offences, with different elements and penalties, does not, of itself, provide a basis for establishing

inconsistency.[60] More specifically, it was submitted that no inconsistency arises where, as in this case, there exists a summary offence (s 99A(2) of the RSA) which, to some extent, covers the same ground as an indictable offence (s 21 of the OHSA), but with a lesser penalty, and broader field of operation. To hold otherwise would, so it was submitted, create inconsistencies throughout the criminal statute books, given how frequently summary and indictable offences can be seen to overlap in this way.[61]

[60]Maroney v The Queen (2003) 216 CLR 31; Magaming v The Queen (2013) 252 CLR 381; Lin v The Queen [2015] NSWCCA 204, [27]. See generally Interpretation of Legislation Act 1984 s 51.

[61]Note, for example, that taxation offences, and particularly tax fraud, can today be dealt with summarily under the Taxation Administration Act 1953 (Cth). In the alternative, such conduct could have been tried on indictment under ss 29A – 29D of the Crimes Act 1914 (Cth) prior to the repeal of that section in its then form. The same conduct can now be dealt with on indictment under the Criminal Code (Cth). In other words, the same criminal acts may be dealt with procedurally in different ways, with potentially vastly different possible consequences, depending upon how the prosecuting authority chooses to exercise its prosecutorial discretion.

The propositions advanced on behalf of the Director were said to be supported by authority. In R v Chalak,[62] the respondent had been charged with committing an offence against s 29B of the Crimes Act 1914 (Cth). That section made it an indictable offence, punishable by imprisonment, to impose upon the Commonwealth by an untrue representation with a view to obtaining money. Subsequently, the Commonwealth Parliament enacted ss 49 and 50 of the Unemployment and Sickness Benefits Act 1944 (Cth), later re-enacted as ss 138 and 139 of the Social Services Act 1947 (Cth). Those provisions made it a summary offence to, inter alia, make a false or misleading statement in connection with a claim, or to obtain payment for a benefit which is not payable. The penalty was a fine or a term of imprisonment.
[62][1983] 1 NSWLR 282 (‘Chalak’).

The respondent successfully applied, at first instance, for an order quashing the indictment on the basis that, to the extent of any overlap, the enactment of the summary offence provisions impliedly repealed s 29B. In overturning that decision, Street CJ (Moffit P and Yeldham J agreeing) held:

One can readily envisage the necessity of having access to a court of summary jurisdiction for the purpose of visiting some comparatively minor departure from the requirements of the Act with a correspondingly minor punishment. It would clearly enough be an encumbrance to the administration of criminal justice to contemplate that every infringement of a provision such as s 49 should require trial on indictment and I see every reason to understand the legislature as having intended to create a parallel system of summary justice to be invoked in circumstances not justifying the more solemn procedure of trial on indictment. The summary nature of the penal scheme enshrined within ss 49 and 50, and in ss 138 and 139 of the current statute, in my view, can readily stand together with the general indictable offence constituted under s 29B.[63]

[63]Ibid 285.

It was submitted on behalf of the Director that the reasoning in Chalak was applicable to the present case.[64] In particular, it was submitted that Street CJ’s observations regarding the provisions there considered apply equally to s 99A of the RSA, and its relationship with the OHSA provisions. In my view, that submission should be accepted.
[64]Counsel also relied upon Lawson v Gault (2002) 125 FCR 1 as being to similar effect.

Senior counsel further argued that the present case could be distinguished from Dickson v The Queen,[65] a decision upon which the respondents placed some reliance. In Dickson, the High Court held that the conspiracy provision in s 321 of the Crimes Act 1958, insofar as it applied in relation to Commonwealth offences, was inconsistent with the offence of conspiracy under s 11.5 of the Criminal Code (Cth). There were various differences between the two sections. Most significantly, conspiracy under the Commonwealth provision required proof of an overt act, whereas no such requirement existed under the Victorian provision.
[65](2010) 241 CLR 491 (‘Dickson’).

The Court described the relevant inconsistency in the following terms:

The direct inconsistency in the present case is presented by the circumstance that s 321 of the Crimes Act (Vic) renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by s 11.5 of the Criminal Code (Cth). In the absence of the operation of s 109 of the Constitution, the Crimes Act (Vic) will alter, impair or detract from the operation of the federal law by proscribing conduct of the appellant which is left untouched by the federal law. The State legislation, in its application to the presentment upon which the appellant was convicted, would undermine and, to a significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law. No room is left for the State law to attach to the crime of conspiracy to steal property in the possession of the Commonwealth more stringent criteria and a different mode of trial by jury. To adapt remarks of Barwick CJ in Devondale Cream, the case is one of ‘direct collision’ because the State law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law.[66]

[66]Ibid 504 (citations omitted).

As senior counsel appearing for the Director submitted, the present case is distinguishable from Dickson in at least two relevant respects. First, the putative inconsistency in Dickson was between Commonwealth and Victorian legislation. Accordingly, the matter fell to be determined by reference to s 109 constitutional jurisprudence. That section has no relevance where, as in the present case, the question of inconsistency arises in respect of two laws passed by the same legislature. As senior counsel submitted, in such circumstances, the question is to be resolved by reference to the doctrine of implied repeal, and the relevant principles enunciated in cases such as Ferdinands.[67]
[67](2006) 225 CLR 130. See above [77]–[79].

Secondly, the foundation for the decision in Dickson was the court’s finding that the enactment by the Commonwealth Parliament of a more narrow conspiracy provision manifested a clear intention that certain conduct captured by the broader State provision, but falling outside the boundaries of the Commonwealth provision, should not be criminal. It followed that there was no room for concurrent operation of the two provisions and that, pursuant to s 109, the Commonwealth provision had to prevail.

As senior counsel for the Director submitted, no relevant analogy can be drawn with the present case. Unlike the Commonwealth provision considered in Dickson, s 99A has a broader field of operation than s 21 of the OHSA. Accordingly, the effect of s 99A cannot be impliedly to mandate that certain conduct criminalised by the OHSA provisions should not be criminal. To the contrary, the manifest intention of s 99A is to create a less serious summary offence, of broader scope than s 21, but without in any way encroaching upon the application of that latter provision to more serious cases.

As regards s 5(1) of the RMA, it was submitted on behalf of the Director, again correctly in my view, that this provision was of little assistance. It operates only if there is an inconsistency between the RMA and another Act. It does not assist in determining the anterior question of whether any such inconsistency exists.

I turn finally to the ‘exhaustive scheme’ argument advanced by VicRoads. For the reasons given by Maxwell P, that argument is without merit. There is, however, one further observation I would make that relates to a matter that was raised with senior counsel who appeared for VicRoads at the oral hearing.

If, as VicRoads would have it, the RMA is to be regarded as an exhaustive scheme or code that excludes any capacity for the OHSA offences to apply, at least in relation to the performance of road management functions, the same logic would be applicable to a myriad of other statutory offences which may intersect with VicRoads’ performance of such functions. This would entail, for example, a complete immunity from prosecution on the part of VicRoads, in relation to the performance of such functions, for various offences arising under the Environment Protection Act 1970, such as in relation to the release of industrial waste, or the creation of environmental hazards.[68] It would also provide an immunity in relation to certain offences applicable to corporations under the Crimes Act 1958, including for example, such serious offences as negligently causing serious injury.[69]
[68]Environmental Protection Act 1970 s 27A.
[69]Crimes Act 1958 s 24. See generally Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Lawbook Co, 3^rd ed, 2010) [3.25] – [3.35], [3.45]. The leading authority regarding corporate criminal liability for serious offences such as manslaughter is based on direct rather than vicarious liability, invoking what is sometimes described as the Tesco principle. See Tesco Supermarkets Ltd v Nattrass [1972] AC 153.

That the legislature would intentionally have singled out VicRoads, from all other corporate entities, by conferring upon it an immunity from prosecution for offences of this grave nature seems to me to be both inexplicable and utterly

improbable. So much so that it would require a clear expression of legislative intent in order to warrant that conclusion. As will be obvious by now, I do not consider that any reading of the relevant statutory provisions exhibits any such expression of legislative intent.

McLEISH JA:

I have had the considerable advantage of reading in draft form the reasons of Maxwell P and Weinberg JA. I agree with their conclusions and reasons for answering the questions in the manner proposed by Maxwell P. I wish only to make some short observations as to why, in my opinion, questions 2 and 4 should not be answered

Question 2 asks whether compliance with the Roadworks Code is admissible as evidence of compliance by the accused with the duties imposed by ss 21(1), 21(2)(a), 21(2)(e) and s 23(1) of the OHSA.

The Roadworks Code, made pursuant to s 28 of the RMA, is an annexure to the stated case before the Court. It is a document of some 98 pages. The stated case does not specify in what respect the accused would seek to rely on its contents, or its making, as evidence of compliance with the relevant duties imposed by the OHSA. Only by implication, if at all, does it state that either accused would seek to do so. What facts are determinative of the legal issue involved in question 2 is left open.[70] In those circumstances, question 2 has the hallmarks of seeking an advisory opinion. An answer to it would have the same features as the High Court identified in relation to the preliminary questions of law it considered in Bass v Permanent Trustee Co Ltd:
[70]Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, 357 [49].

As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They

may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. …[71]

[71]Ibid.

That this is so is confirmed by a consideration of the ways in which the Roadworks Code might be said to have relevance to a defence to the relevant charges. For example, it is conceivable that evidence of compliance with the Roadworks Code might be relevant and admissible on the question whether the duties in s 21(1) or s 23(1) were satisfied. Or the making of the Roadworks Code might itself be advanced as evidencing compliance with the duties. But these are matters for determination on ordinary principles based on the way in which reliance is sought to be placed on the Roadworks Code. There is no universal answer to the question of admissibility. The question of relevance is not able to be addressed at the level of ‘abstract generality’ in which question 2 is expressed.[72]
[72]Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135, 158 [41].

There is a similar, but more fundamental, problem with question 4. It asks whether, in proceedings for breaches of the relevant provisions of the OHSA, a policy or policy decision regarding the manner in which works are to be performed, made by VicRoads in accordance with s 39 of the RMA, is capable of satisfying the duties under the OHSA.

The case stated makes no reference to any policy, or policy decision, of VicRoads under s 39 of the RMA. The question is, as the Director submitted, entirely general and hypothetical. That suffices as a reason not to answer it. But in any event, even if it were possible to assume the existence of a relevant policy or policy decision, questions of admissibility would again have to be determined according to ordinary principles by reference to the manner in which VicRoads sought to place reliance on it.

I agree with the orders proposed by Maxwell P.

APPENDIX

Provisions of the Road Management Act 2004
4 Object of Act
(1)The primary object of this Act is to establish a coordinated management system that will promote a road network at State and local levels that operates as part of an integrated and sustainable transport system consistent with the transport system objectives under the Transport Integration Act 2010 and the responsible use of road reserves for other legitimate purposes
(2)In seeking to achieve the primary object, this Act—
(a)sets out general rights of roads users;
(b)establishes a system for the management of safe and efficient public roads that best meet the needs and priorities of State and local communities;[73]
[73]Here and elsewhere in the Appendix, the emphasis is added.
(c)establishes a system of classification for roads and sets clear principles about the division of responsibilities between State and local road authorities;
(ca)provides for the assigning of priority to different modes of transport on specified roads;
(d)provides mechanisms for coordinating the placement and maintenance of infrastructure on road reserves, and the carrying out of related works, so as to—
(i)minimise interference with road use;
(ii)facilitate the effective and efficient provision of utility and public transport services;
(iii)minimise interference with other infrastructure and the provision of utility and public transport services;

(e)provides for the keeping of registers of public roads which register those roads which must be constructed, maintained and managed by road authorities;
(ea)provides for the keeping of a register of specified roads and the transport modes that have priority in respect of those specified roads;
(f)establishes decision-making processes in relation to standards for the construction, inspection, maintenance and repair of State and municipal roads which take into account—
(i)the needs and expectations of the relevant communities;
(ii)national, State and local government transport and other policies; and
(iii)the available funding within the context of the whole range of responsibilities of road authorities;

(g)sets out the powers and duties of road authorities to manage roads, the duties of infrastructure managers which install and maintain infrastructure on roads and the duties of works managers which carry out works on roads;
(h)confers adequate operational powers and imposes corresponding accountability on road authorities in relation to the management of roads;
(i)enables Codes of Practice to be made that give practical guidance in relation to the exercise of these powers, functions and duties;
(j)clarifies the law relating to civil liability for the management of public roads and other roads; and
(k)provides for the protection of roads against damage and interference.

20 Principal object and management principles
(1) The principal object of road management is to ensure that a network of roads is provided primarily for the movement of persons and goods as part of an integrated transport system and that road reserves are available for other appropriate uses.
(1A) In giving effect to the principal object of road management consistent with the transport system objectives under the Transport Integration Act 2010, the road network is to be managed to reflect the priorities of different modes of transport having regard to the intended function or functions of different parts of the road network.
…
(2) The following principles apply in respect of the management of works and infrastructure under this Act—
(a)the minimisation of road safety hazards;
(b)the avoidance or minimisation of damage or disruption to infrastructure on roads;
(c)the avoidance or minimisation of disruption to plans for the development of road infrastructure and non-road infrastructure;
(d)the avoidance or minimisation of disruption to traffic;
(da)the priority of different modes of transport on specified roads;
(e)the avoidance or minimisation of disruption to the effective and efficient delivery of utility and public transport services;
(f)the efficient use of resources of road authorities and infrastructure managers and the minimisation of cost to the community of infrastructure and services.

24 Purposes of Codes of Practice
(1)The main purposes of Codes of Practice are to provide practical guidance—
(a)by setting out benchmarks of good practice in relation to the performance of road management functions by road authorities and the conduct of works managers, infrastructure managers and providers of public transport;
(b)by clarifying or determining how the operational responsibility for different parts or elements of a road reserve is to be allocated between road authorities;
(c)to road authorities in determining how to allocate resources, develop policies, set priorities and make road management plans;
(d)in relation to the matters specified in section 25.

(2) A Code of Practice which relates to infrastructure and works on roads must give effect to the works and infrastructure management principles.
(3) A Code of Practice may establish principles giving practical guidance for determining
(a)the boundary between a roadway, pathway, roadside or shoulder in any particular case;
(b)which road authority is responsible for road related infrastructure.

(4)A Code of Practice cannot—
(a)impose a duty on any person; or
(b)direct how any matter or thing is to be done; or
(c)create an enforceable legal right; or
(d)impose any liability or penalty.

25 What can a Code of Practice include?
(1)A Code of Practice may contain any matter or thing which gives guidance to a road authority, infrastructure manager or works manager for the purposes of this Act in relation to—
(a)the performance of road management functions;
(b)the standards which may be adopted or developed;
(c)the conduct of works under this Act or section 99A of the Road Safety Act 1986;
(d)the interchange and storage of road information.

(2)Without limiting the generality of subsection (1), a Code of Practice may provide for any matter or thing which gives guidance—
(a)to a road authority in planning and managing risk identification and inspection functions;
(b)to a road authority in planning and managing routine maintenance and repair functions, including—
(i)consideration and prioritisation of tasks;
(ii)routine maintenance programs;
(iii)measures to reduce the risk of accidents until repairs are completed;

(c)to a road authority in planning and managing the development and implementation of a road management plan, including—
(i)contents of a road management plan;
(ii)considerations to be taken into account in developing a road management plan;
(iii)consultation with infrastructure managers, works managers, providers of public transport, the local community and members of the public;
(iv)monitoring the implementation of a road management plan;
(v)periodic review and revision of a road management plan;

(d)to a road authority, infrastructure manager, works manager or provider of public transport in planning and managing responsibilities relating to—
(i)the manner in which works on roads should be carried out;
(ii)situations that would constitute an emergency situation in which works could be carried out without the prior consent of the coordinating road authority;
(iii)good engineering practice or relevant industry standards in relation to a specified type of infrastructure or works;
(iv)consultation processes to facilitate consultation between road authorities, infrastructure managers, works managers and providers of public transport and with persons who may be affected by proposed works;
(v)processes for consultation and exchanging information, including information about forward works programs and the coordination of works on infrastructure;

(e)to a coordinating road authority, as to the manner in which functions should be coordinated and the process for the giving or withholding of consent to proposed infrastructure or works and determining appropriate conditions subject to which the consent may be given.

27 Codes of Practice as evidence
(1)A Code of Practice is admissible in evidence in any proceedings to which this Act or section 99A of the Road Safety Act 1986 applies.
(2)For the purposes of proceedings to which this Act or section 99A of the Road Safety Act 1986 applies—
(a)evidence that a road authority, infrastructure manager or works manager has complied with a Code of Practice is admissible evidence that the road authority, infrastructure manager or works manager has complied with the relevant duty in respect of which the Code of Practice applies;
(b)evidence that a road authority, infrastructure manager or works manager has not complied with a Code of Practice is admissible evidence that the road authority, infrastructure manager or works manager has not complied with the relevant duty in respect of which the Code of Practice applies.

39Road authority may make a policy or policy decision relating to road management functions
(1)Without limiting the decision making processes of a road authority, a road authority may make a policy or policy decision relating to the performance of a road management function.
(2)For the purposes of this Act, a decision made by a road authority is a policy decision if having regard to the broad range of activities of the road authority the decision is based substantially on factors or constraints which are financial, economic, political, social or environmental.
(3)Without limiting the generality of subsection (2), a policy decision includes decisions about—
(a)the circumstances in which a road management function is to be performed;
(b)the manner in which a road management function is to be performed;
(c)the standard to be achieved in performing a road management function.

(4)A road authority is to be taken to have made a policy or policy decision relating to a road management function if the road authority has made a road management plan that includes provisions relating to the performance of that road management function.
(5)For the purposes of any proceedings, unless a policy or policy decision made by a road authority is so unreasonable that no road authority in that road authority's position acting reasonably could have made that policy or policy decision, any decision or standard which is a policy or policy decision relating to the exercise of a road management function by the road authority is to be taken to satisfy the statutory duty and any common law duty of the road authority in relation to the exercise of that road management function.
Note
Section 27 enables a relevant Code of Practice to be used as evidence of the reasonableness of a road management plan.
(6)For the avoidance of doubt, the power of a road authority to make a policy or policy decision is subject to any direction given to the road authority by the relevant Minister in accordance with section 22.
SCHEDULE 7
INFRASTRUCTURE AND WORKS ON ROADS
PART 1—SPECIFIC DUTIES OF INFRASTRUCTURE MANAGERS OR WORKS MANAGERS

1 Duty to apply principles
An infrastructure manager or works manager must have regard to the principles in clause 14 in the performance of its functions or the exercise of powers in the provision of non-road infrastructure on roads.
2 Duty to act in accordance with good engineering practice or relevant industry standard
An infrastructure manager or works manager must in installing non-road infrastructure and conducting related works apply good engineering practice and relevant industry standards.
3 Duty to have traffic management plan
An infrastructure manager or works manager must comply with—
(a)any requirements in relation to the safety of road users; and
(b)section 99A of the Road Safety Act 1986.

4 Duty to cooperate
An infrastructure manager or works manager must cooperate in good faith with any other infrastructure manager or works manager in coordinating the management and maintenance of infrastructure and related works on a road.

5 Duty to avoid unnecessary delay or obstruction or interference with infrastructure
An infrastructure manager or works manager must—
(a)if practicable, use methods which do not involve excavating or breaking up the surface of a roadway or pathway or interfering with infrastructure in preference to methods that do;
(b)if it is necessary to excavate or break up the surface of a roadway or pathway, the works should be conducted
(i)at a time and in a manner to minimise as far as is reasonably practicable inconvenience to road users and other persons; and
(ii)so as to minimise long term damage or disruption;

(c)as far as is practicable, reinstate at its own cost the roadway or pathway or infrastructure to the standard before the works were commenced.

6 Duty to maintain non-road infrastructure or related works to a satisfactory standard
An infrastructure manager must take reasonable measures to—
(a)maintain the non-road infrastructure or related works to a satisfactory state of repair;
(b)avoid causing damage to the roadway, road infrastructure or non-road infrastructure;
(c)repair any damage caused to the roadway, road infrastructure or non-road infrastructure by a failure of infrastructure for which the infrastructure manager is responsible;
(d)take reasonable precautions to ensure that anything placed on a roadway or pathway does not cause an obstruction or inconvenience;
(e)take reasonable precautions to ensure that anything placed on a roadway or pathway does not cause an obstruction or danger to any person with a disability;
(f)in the case of any part of a road used for rail infrastructure, ensure that the condition of the surface is maintained to a standard which is equivalent to the standard of the adjacent road surface.

Example

A road authority, a utility or a provider of public transport which has infrastructure in a road must take care that its pit lids, access hole covers, gratings and similar things are kept flush with the surrounding surface of the roadway or pathway so that they do not cause a hazard or adversely affect the smooth passage of traffic.
…
PART 2—SPECIFIC POWERS OF COORDINATING ROAD AUTHORITIES WITH RESPECT TO INFRASTRUCTURE AND WORKS ON ROADS
14 Principles applying to infrastructure managers and works managers
(1)An infrastructure manager or a works manager must have regard to the principles specified in this clause in the provision of non-road infrastructure on roads.
(2)The primary purpose of a road is use by members of the public and authorised uses must be managed as far as is reasonably practicable in such a way as to minimise any adverse impacts on the primary purpose.
(3)Without limiting the generality of subclause (2), authorised uses must be managed so as to—
(a)minimise any damage to roads and road infrastructure;
(b)ensure that any works necessary for the provision of non-road infrastructure are conducted as quickly as practicable;
(c)minimise any disruption to road users;
(ca)minimise any disruption to users of different modes of transport which have priority on specified roads;
(d)minimise any risk to the safety and property of road users and the public generally;
(e)facilitate the design and installation of infrastructure which minimises any risk to the safety of road users;
(f)ensure that the road and any other infrastructure is reinstated as nearly as practicable to the condition existing before the works necessary for the provision of the non-road infrastructure were conducted;
(g)protect and preserve existing significant roadside vegetation and sites of biological significance within the road reserve.

Extract from Explanatory Memorandum to the Road Management Bill 2004 (Vic)
Clause 39 enables road authorities to make policies or policy decisions relating to the performance of road management functions. The clause sets out the circumstances in which a decision is a policy decision and the kinds of decisions which will be policy decisions.
Policy decisions include decisions about—
·the circumstances in which a road management function is to be performed;
·the manner in which a road management function is to be performed;
·the standard to be achieved in performing a road management function.

One of the ways in which a road authority may make a policy decision is by making a ‘road management plan’ under clause 54.
Sub-clause (5) provides that a policy decision or standard relating to the performance of a road management functions [SIC] satisfies the relevant statutory and common law duties in relation to the exercise of those functions. However, this does not apply if the decision is so unreasonable that no road authority acting reasonably could have made the decision.
This exception is intended to express the concept of ‘Wednesbury unreasonableness’, which is a ground for invalidating an administrative decision under general administrative law. For these purposes, any relevant Code of Practice may be used as evidence of the reasonableness or unreasonableness of the road authority's decisions: see clause 27.
Clause 39, together with clause 41 (determination of standards), Division 5 of Part 4 (road management plans) and clause 103 (policy defence) are important because they will bring greater certainty to the legal requirements for management of roads.
They will enable road authorities to determine policies about the standard of construction, inspection, repair and maintenance of roadways and other functions having regard to their overall functions, policies and budgets.
If the policies are not unreasonable, and if the road authority adheres to the policies in practice, the road authority will not be held to be negligent. These provisions of the Bill are intended to implement the recommendations of the Ipp Report in relation to the proposed policy defence.
Provisions of the Road Safety Act 1986
3Definitions
(1) In this Act—
…
highway means road or road related area
…
road means—
(a)an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles; or
(b)a place that is a road by virtue of a declaration under subsection (2)(a)—

but does not include a place that is not a road by virtue of a declaration under subsection (2)(a);

99AConduct of works or activities on a highway
(1)This section applies to any person conducting, or proposing to conduct on a highway—
(a)any works within the meaning of section 3(1) of the Road Management Act 2004; or
(b)any non-road activity within the meaning of section 99B.

(2)A person to whom this section applies must ensure that the works or non-road activities are conducted in a manner that is safe for road users and persons engaged in carrying out the works or non-road activities.
Penalty:         60 penalty units.
(3)Without limiting subsection (2), a person to whom this section applies contravenes that subsection if the person fails to do any of the following—
(a)       have in operation a traffic management plan;
(b)       give appropriate warnings to road users;
(c)engage appropriately trained and qualified persons to carry out the works or manage the non-road activities or direct traffic;
(d)give appropriate directions to the persons engaged in carrying out the works or non-road activities.

(4) A traffic management plan must—
(a) comply with the prescribed requirements; and
(b)be prepared in accordance with any requirements of the coordinating road authority under the Road Management Act 2004.

(5)The Minister administering the Road Management Act 2004 may issue a Code of Practice in accordance with that Act for the purposes of this section.
99BNon-road activities on highways
(1)Subject to this Act and the regulations, the coordinating road authority within the meaning of the Road Management Act 2004 may issue a permit to a person to conduct a non-road activity on a highway.
(2)For the purpose of conducting the non-road activity authorised by a permit, the coordinating road authority may authorise the closure of the highway to all traffic or to particular types of traffic for the period specified in the permit.

(3) A permit may be issued subject to—
(a)any terms, conditions or limitations which the coordinating road authority considers appropriate; and

(b) the payment of a fee fixed in accordance with this Act.
(4)The Minister may, on the application of a person proposing to conduct a non-road activity on a highway, by notice published in the Government Gazette declare that specified provisions of the Act and of the regulations do not apply with respect to the non-road activity specified in the notice to be conducted on a highway or part of a highway specified in the notice during the period specified.
(5)A notice under subsection (4) may declare that the highway or part of the highway specified in the notice is not a highway under this Act for all purposes or specified purposes during the specified period.
(6)A person to whom a permit is issued is responsible for the use of the highway for the non‑road activity.
(7)The Minister may by instrument of delegation delegate to any person any of the powers of the Minister under this section.
(8)In this section, non-road activity means an activity to be conducted on a road which will significantly interfere with the normal use of a road by road users in accordance with this Act and the regulations but does not include any activity to be conducted on a road by a police officer or a member of any emergency services agency arising out of the performance of a function or exercise of a power of that police officer or member.
Example
A non-road activity would include the use of a road for the shooting of a film, a bicycle event, a street festival or a street market.

[2015] VSCA 287

29 October 2015