FEDERAL COURT OF AUSTRALIA
Ehrke v Australian Building and Construction Commissioner [2020] FCA 267
File number: QUD 879 of 2018 Judge: RANGIAH J Date of judgment: 6 March 2020 Catchwords: ADMINISTRATIVE LAW – whether examination notice issued under Building and Construction Industry (Improving Productivity) Act 2016 (Cth) is invalid – whether examination notice complies with prescribed form – whether Deputy President is the proper second respondent – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 60(1)
Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 3, 5, 7, 8, 16(1), 46, 61A, 61B, 61C, 61D, 61F, 62, 102 and 103
Building and Construction Industry (Improving Productivity) Regulations 2017 (Cth) s 7
Fair Work Act 2009 (Cth) ss 19(1), 348 and 712
Income Tax Assessment Act1936 (Cth) s 264
Judiciary Act 1903 (Cth) s 39B
Legislation Act 2003 (Cth) s 13(1)(b)
Trade Practices Act 1975 (Cth) s 155
Workplace Relations Act 1996 (Cth) s 86(1A)
Federal Court Rules 2011 (Cth) r 9.08
Listening Devices Act 1969 (Vic) s 4A
Occupational Health and Safety Act 2004 (Vic) s 9(1)
Protection of the Environment Operations Act 1997 (NSW) s 193
Cases cited: Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2018] VSCA 165
Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581
Construction, Forestry, Mining and Energy Union v Alfred (2016) 242 FCR 35
D’Anastasi v Environment, Climate Change and Water NSW (2011) 81 NSWLR 82
Donnelly v O'Donnell (2005) 146 IR 434
Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499
Grollo v Palmer (1995) 184 CLR 348
Hilton v Wells (1985) 157 CLR 57
Ousley v The Queen (1997) 192 CLR 69
Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565; 57 FLR 368
Date of hearing: 13 September 2019 Date of last submissions: 25 September 2019 (First Respondent)
3 October 2019 (Applicant)Registry: Queensland Division: Fair Work Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 69 Counsel for the Applicant: Mr C Dowling SC with Mr C Massy Solicitor for the Applicant: Hall Payne Lawyers Counsel for the First Respondent: Mr T Howe QC with Dr R Schulte Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
QUD 879 of 2018 BETWEEN: MILLIE EHRKE
Applicant
AND: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
6 MARCH 2020
THE COURT ORDERS THAT:
1.The Administrative Appeals Tribunal cease to be a party.
2.The application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
On 11 October 2018, Deputy President Forgie of the Administrative Appeals Tribunal (the Tribunal), acting under s 61C of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth)…
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- Case
- [2020] FCA 267
- Decision Date
CaseChat Overview and Summary
The court found that the examination notice was valid as it complied with the requirements of the prescribed form. The court held that the requirement to specify the "suspected contraventions" only needed the specification of which section of the BCI Act or designated building law was alleged to have been contravened. The court rejected the applicant's contention that the Examination Notice was invalid, stating that the principles outlined in the cases referred to by Kaye JA in Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2018] VSCA 165 were applicable to a general class of provisions which entitle an authority to require the compulsory provision of information or documents. The court further found that the Deputy President was the proper second respondent in the proceedings.
As a result of the court's findings, the application was dismissed, and the Administrative Appeals Tribunal ceased to be a party. The court made an order pursuant to r 9.08 of the Federal Court Rules 2011 (Cth) that the Tribunal cease to be a party. The court also dismissed the applicant's application for an injunction preventing the Commissioner from proceeding with the investigation.
Orders
Orders of the court
1. The Administrative Appeals Tribunal cease to be a party.
2. The application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Commissioner submits that the Examination Notice complies with the requirements of the prescribed form. He also argues that the requirement in the form to specify the “suspected contraventions” of the BCI Act or designated building law only requires specification of which section of the BCI Act or designated building law is alleged to have been contravened. ConsiderationValidity of the Examination Notice The applicant places substantial reliance upon the judgment of the Victorian Court of Appeal in Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2018] VSCA 165. That case was concerned with the validity of a notice to provide information and produce documents issued under s 9(1) of the Occupational Health and Safety Act 2004 (Vic). In passages emphasised by the applicant, Kaye JA held:78There is no direct authority on the requirements that are necessary to be fulfilled in order that a notice under s 9 of the OHSA be valid. However, there are a number of decisions concerning provisions contained in other legislation which, in a similar manner to s 9 of the OHSA, entitled an investigative or enforcement authority to require the compulsory provision to it of information or documents. The principles, outlined in those cases, need to be adapted, in order to allow for differences between the legislation in those cases and s 9 of the OHSA, both in the language in which the particular provisions were couched, and also in order to take into account the different legislative contexts in each case. Nevertheless, and bearing that caveat in mind, the decisions in those cases are based, significantly, on general principles, that are applicable to the general class of provisions, to which s 9 of the OHSA belongs, and which entitle an investigative or enforcement authority to require the compulsory provision to it of information or documents. 79 The fundamental principle, discussed in the cases, is that a notice, requiring the compulsory provision of information or documents, must fulfil two important conditions. First, the notice must disclose, on its face, that it is an exercise of the power which is conferred on the Authority by the statutory provision in question. Secondly, the notice must specify, with reasonable clarity, the information that the recipient is required to provide, or the documents that the recipient is required to produce, so as to enable it to be judged whether the Authority in question is entitled to require the provision of the information or documents stipulated in the notice. The cases referred to by Kaye JA at [78]–[79] include Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565; 57 FLR 368 at 375–376; Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581 at 584, 591 (dealing with s 155 of the Trade Practices Act 1975 (Cth)); Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 525 (s 264 of the Income Tax Assessment Act1936 (Cth)); Thorson v Pine [2004] FCA 805 at [5]–[9]; Donnelly v O'Donnell (2005) 146 IR 434 at [4] (s 86(1A) of the Workplace Relations Act 1996 (Cth)); D’Anastasi v Environment, Climate Change and Water NSW (2011) 81 NSWLR 82 at [39]–[43] (s 193 of the Protection of the Environment Operations Act 1997 (NSW); and Construction, Forestry, Mining and Energy Union v Alfred (2016) 242 FCR 35 at [16], [24]–[25] (s 712 of the FW Act). In Aurora, Kaye JA distilled from these cases principles which his Honour held were applicable to a general class of provisions which entitle an authority to require the compulsory provision of information or documents (see also [86]–[96]). However, his Honour acknowledged that these principles need to be adapted to different legislative contexts (see also [91]).