Leanne O'Shannessy & Department of Health Ltd v Blacktown Workers Club

[2010] NSWSC 1153

CITATION:	Leanne O'Shannessy & Department of Health Ltd v Blacktown Workers Club [2010] NSWSC 1153
HEARING DATE(S):	7 June 2010
JUDGMENT DATE :	14 October 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Harrison AsJ
DECISION:	(1) The decision of his Honour Magistrate R A Brown dated 7 December 2009 is set aside. (2) The matter is remitted to the Local Court to be determined according to law. (3) The first defendant is to pay the plaintiff's costs as agreed or assessed.
CATCHWORDS:	Appeal - Local Court - Smoke-free Environment Act 2000
LEGISLATION CITED:	Building Code of Australia 2010 Smoke-free Environment Act 2000 Crimes (Appeal and Review) Act 2001 Smoke-free Environment Regulation 2007
CATEGORY:	Principal judgment
CASES CITED:	Apthorpe v Repatriation Commissin (1987) 77 ALR 42; (1987) 13 ALD 656 Australian Gas Light Co v Valuer General (1940) SR 126 Azzopardi v Tasman UEB Industries ltd (1985) 4 NSWLR 139 Broadbridge v Stammers (1987) 16 FCR 296; (1987) 14 ALD 649; (1987) 76 ALR 339 Bukorovic v the Registrar of the WCC [2010] NSWSC 507 Director of Public Prosecutions v Belani [2005] NSWSC 1013 Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308 Gurleven v Minister for Immigration & Ethnic Affairs (unreported, Full Federal Court, 24 February 1984) Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 64 ALR 466 Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441 Paice v Hill [2009] NSWCA 156 Riddell v Secretary, Dept of Social Security (1993) 42 FCR 443 Sean Investment Pty Ltd v MacKellar (1981) 38 ALR 363; (1982) 42 ALR 676
TEXTS CITED:	Macquarie Dictionary Online Oxford English Dictionary, Oxford University Press
PARTIES:	Leanne O'Shannessy & Department of Health Ltd (Plaintiff) Blacktown Workers' Club Limited (First Defendant) His Honour Magistrate R A Brown (Second Defendant)
FILE NUMBER(S):	SC 2009/325513
COUNSEL:	C Hoy SC with N J Beaumont (Plaintiff) A Hatzis (First Defendant)
SOLICITORS:	Principal Legal Office, Legal Branch NSW Department of Health (Plaintiff) Thomson Playford Cutlers (First Defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	24926/08/34
LOWER COURT JUDICIAL OFFICER :	R A Brown LCM
LOWER COURT DATE OF DECISION:	7 December 2009

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

THURSDAY, 14 OCTOBER 2010

2009/325513 LEANNE O’SHANNESSY & DEPARTMENT OF HEALTH LTD v BLACKTOWN WORKERS CLUB & ANOR

JUDGMENT (Appeal – Local Court – Smoke-free Environment Act 2000)

1 HER HONOUR: By amended summons filed 7 June 2010, the plaintiff seeks, firstly, an order pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 setting aside the order of the second defendant made at the Local Court at Blacktown on 7 December 2009 which dismissed a prosecution brought by the plaintiff against the first defendant under s 8(1) of the Smoke-free Environment Act 2000 (“the Act”); and second, an order pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 that the proceedings be remitted to the Local Court, Blacktown to be heard and determined according to law. Blacktown Workers Club has filed a notice of contention on 3 February 2010. The list judge has referred the matter to this Court for hearing pursuant to Schedule D Part 3 rule 4 of the Supreme Court Rules 1970.

2 The plaintiff is Leanne O’Shannessy. She is the Director of Legal in the Department of Health. I will refer to the plaintiff as the “Department of Health”. The first defendant is Blacktown Workers’ Club Limited (“Blacktown Workers”). The second defendant is his Local Court Magistrate, the Honourable Dr R A Brown (“the Magistrate”).

3 In the Local Court, these proceedings were run as a test case with respect to the interpretation of certain aspects of the legislation governing smoke-free environments. The Magistrate stated that the facts in the matter were not in any way in dispute (although Blacktown Workers now dispute a factual finding made by his Honour in its notice of contention).

4 On 14 March 2008, a Court Attendance Notice was issued and served upon Blacktown Workers (ACN 000 858 006) alleging an offence of “Occupier of a smoke-free area where people smoke” pursuant to section 8(1) of the Act. The offence was alleged to have occurred within Blacktown Workers Club situate at 55 Campbell Street Blacktown at approximately 10.30 am on 26 November 2007. The area where the alleged offence occurred is referred to as the Western Terrace – a gaming machine room within Blacktown Workers. On 6 February 2009, the court and the parties took a view of the Western Terrance, the loading dock and the walkway areas.

5 The only issue before the Local Court was whether the gaming area within Blacktown Workers that was designated for smokers (the “Western Terrace”) contravened (a) s 8 of the Act and (b) the Guidelines prescribed in clause 6 of the Smoke-free Environment Regulation 2007 (“the Regulation”). This Regulation has since been amended.

The Act and Guidelines

6 The Act has the object of promoting “public health by reducing exposure to tobacco and other smoke in enclosed public places” (s 3).

7 Section 4 of the Act defines “public place” as:

“a place … that the public, or a section of the public, is entitled to use or that is open to, or is being used by, the public or a section of the public.”

8 Section 4 of the Act also defines "enclosed, in relation to a public place" as:

"having a ceiling or roof and, except for doors and passageways, completely or substantially enclosed, whether permanently or temporarily".

9 Section 8(1) of the Act provides that if a "person smokes in a smoke-free area in contravention of s 7, the occupier of the smoke-free area is guilty of an offence." Section 6 of the Act defines a "smoke-free area" as "any enclosed public place".

10 Section 23(2)(e) of the Act provides that regulations may provide for:

"guidelines in relation to determining what is an enclosed public place and when a covered outside area is considered to be substantially enclosed for the purposes of this Act."

11 Turning now to the Regulation in force at the relevant time, clause 6 provides guidelines for determining what is "an enclosed public place" and when a covered outside area is considered to be “substantially enclosed” for the purposes of the Act (“the Guidelines”). Clause 6 reads

"6 Guidelines for determining what places are enclosed

(1) The provisions of this clause prescribe guidelines in relation to determining what is an enclosed public place and when a covered outside area is considered to be substantially enclosed for the purposes of the Act.

(2) A public place is considered to be substantially enclosed if the total area of the ceiling and wall surfaces (the total actual enclosed area ) of the public place is more than 75 per cent of its total notional ceiling and wall area.

(3) The total notional ceiling and wall area is the sum of:

(a) what would be the total area of the wall surfaces if:

(i) the walls were continuous (any existing gap in the walls being filled by a surface of the minimum area required for that purpose), and (ii) the walls were of a uniform height equal to the lowest height of the ceiling, and
(b) what would be the floor area of the space within the walls if the walls were continuous as referred to in paragraph (a).

(4) The following are to be included as part of the total actual enclosed area:

(a) any gap in a wall or ceiling that does not open directly to the outside,

(b) any door, window or moveable structure that is, or is part of, a ceiling or wall, regardless of whether the door, window or structure is open (other than the area of any locked-open door or window),

(c) the area of any locked-open doors or windows, but only that part of the total area of all such doors and windows that exceeds 15 per cent of the total notional ceiling and wall area.

(5) A gap in a wall or ceiling that opens directly to the outside (other than a gap caused by a door, window or moveable structure being open) is not to be included as part of the total actual enclosed area.

(6) A gap, door, window or moveable structure required to be included as part of the total actual enclosed area is to be included as if the wall or ceiling were continuous and the gap, or the space occupied by the door, window or moveable structure, were filled by a surface of the minimum area required for that purpose.

(7) In this clause:

ceiling includes a roof or any structure or device (whether fixed or moveable) that prevents or impedes upward airflow.

locked-open door or locked-open window means a door or window that opens directly to the outside and is locked fully open (that is, secured in its fully open position by means of a key operated lock).

moveable structure includes a retractable awning, umbrella or any other moveable structure or device.

wall includes any structure or device (whether fixed or moveable) that prevents or impedes lateral airflow."

12 The effect of the Guidelines is that a public place, whether indoors or outdoors, will be “substantially enclosed” and therefore “smoke-free” if the “total actual enclosed area” (“TAEA”) is more than 75% of the total notional ceiling and wall area (“TNCWA”). Any gap in a wall or ceiling that “does not open directly to the outside” is included as part of the TAEA whereas any gap in a wall or ceiling that does so open is not included in the TAEA.

Factual Background

13 On 14 March 2008, Blacktown Workers was charged with an offence contrary to s 8(1) of the Act. It was alleged that on 26 November 2007, persons were found to be smoking in the Western Terrace in contravention of the Act.

14 On 6 February 2009, the prosecution first came before the Magistrate for hearing. An agreed statement of facts was tendered by consent. It was accepted by Blacktown Workers that it was the occupier of the Western Terrace, that the Western Terrace was a public place, and that on 26 November 2007, persons were smoking in the Western Terrace.

15 A sketched plan of Western Terrace and loading dock area is annexed to this judgment (Ex A). The Western Terrace is an L-shaped room surrounded on one side by the main (non-smoking) gaming area and on the remaining sides by a loading dock and walkway area (“the loading dock area”). The Western Terrace is accessible by patrons of Blacktown Workers by automatic doors leading in and out of the main gaming area. The Western Terrace has three glass walls facing the inside of the premises and five metal security mesh screens facing the loading dock area (“the mesh screens”). The loading dock area is a concrete tunnel comprising a driveway and walkway which open onto a public street.

16 The issue before the Local Court was whether the Western Terrace was "an enclosed public place" within the meaning of the Act. If it was, it had to remain smoke free. On 7 December 2009, the Magistrate decided that the Western Terrace was not an enclosed public place. Blacktown Workers was found not guilty and the charge was dismissed.

17 The Magistrate stated that there were two issues that arose for determination. They were, firstly, whether the mesh screens opened "directly to the outside"; and secondly, whether the mesh screens were "walls". The Magistrate stated that it was accepted by both parties in the Local Court hearing that if either of these questions was decided in favour of the Department of Health, then Blacktown Workers was guilty of the offence charged. However, the Magistrate determined both questions in favour of Blacktown Workers: the mesh screens were found not to be “walls” and were found to be “open directly to the outside”.

18 At the hearing of this appeal, Blacktown Workers disputed the correctness of the Magistrate’s summation of the issues. It said that the sole issue before the Local Court was whether the five mesh screens were “walls” within the meaning of the Act and Regulation. It therefore did not agree that it would be guilty if “either” of the two questions referred to above were answered in favour of the Department of Health.

Grounds of Appeal and contention

19 The alleged errors can be shortly summarised as follows. Firstly, the Department of Health submitted that the Magistrate made an error of law in that he fundamentally misconstrued the applicable legislation (Grounds 1 and 2).

20 Secondly, it was submitted that the Magistrate should not have found that each of the mesh screens fell within the statutory description of a “gap in a wall or ceiling that opens directly to the outside”. It was submitted that the mesh screens were gaps that did not open directly to the outside and therefore that they had to be included in the calculation of the TAEA (Grounds 3 and 4).

21 Finally, it is submitted that the Magistrate made an error of law in (a) finding that the area in question was not "substantially" enclosed, the error being due to the fact that the Guidelines are prescriptive and mandatory, and the application of their provisions conclusively determines whether a public place is "substantially enclosed" within the meaning of s 4 of the Act; and (b) the Magistrate erred in failing to give adequate or proper reasons for his alternative conclusion that, regardless of the Guidelines, the Western Terrace was not “substantially enclosed” within the meaning of s 4 of the Act (Ground 5).

The contention

22 Blacktown Workers contended that it would not have been guilty of the offence charged by reason only of a factual finding, which was not in fact made by the Court below, that the mesh screens adjacent to the loading dock and walkway were not gaps which were “open directly to the outside” (“the contention”).

23 So far as the contention is concerned, at [16] the Magistrate stated that in his view, the screens all “open directly to the outside”.

Preliminary issue – were the mesh screens “walls”?

24 Blacktown Workers accepted that if the mesh screens were “walls”, the Western Terrace would be regarded as substantially enclosed. However, it contended that the mesh screens were not “walls” and accordingly that the issue of whether they opened “directly to the outside” simply did not arise. It submitted that the Department of Health did not challenge this crucial finding. The Department of Health accepted that it did not dispute the Magistrate’s finding of fact, but submitted that the Magistrate found the mesh screens to have been “gaps” for the purpose of the Act and Regulation. Therefore, an issue did arise as to whether those gaps opened “directly to the outside”.

25 It is first necessary to clarify whether the Magistrate made a finding that the mesh screens were “walls” as defined in clause 6(7) of the Regulation. If his Honour found that the mesh screens were not walls, it becomes necessary to consider whether his Honour found them to be “gaps” in walls and, if so, whether his Honour properly concluded that those gaps open “directly to the outside”.

26 In considering Regulation 6(7), the Magistrate referred to the definition of “wall” [“wall includes any structure or device (whether fixed or moveable) that prevents or impedes lateral airflow”]. His Honour stated that it was clearly not the prosecution’s case that the mesh screens “prevent” lateral airflow and his Honour also stated that it was equally clear that there was no dispute that the screens were a “structure or device” within the meaning of Regulation 6(7). That left the issue of whether the mesh screens impeded lateral airflow.

27 At [21] his Honour considered what construction should be given to the word “impede” in Regulation 6(7). His Honour remarked:

“…The Macquarie Dictionary defines the term as, “verb (t) (impeded, impeding) to retard in movement or progress by means of obstacles or hindrances; obstruct; hinder. [Latin impedíre entangle, hamper (originally, as to the feet)]. As a matter of basic principles of construction there seems to be no reason to not accord the word its normal English meaning. It is clearly the evidence of Mr Howse that the screens do not obstruct or hinder the airflow, and whilst any solid, however minor, in an air stream, could be said to be an “obstacle”, it would need to have some discernible diminishing impact on the airflow before it could be said to “impede” that air flow. No such impact is demonstrated in the present case. I think it apparent that no absurdity flows from this construction, which appears to be in accordance with the general policy of the legislation.”

28 Thus, the Magistrate found that the mesh screens do not impede airflow and so do not fall within the definition of “wall” contained in clause 6(7) of the Regulation.

29 The Magistrate concluded at [22]:

“22. It follows that the prosecution fails to establish that either the screens adopted by the defendant for the Western Terrace, or its location in the loading dock area, prevent it from complying with the guidelines under Regulation 6. On the contrary, I am satisfied that the characteristics of the Western Terrace do comply with the guidelines in respect of the issues raised before me, and the charge is dismissed.”

30 In its submissions, the Department of Health stated that it did not dispute the Magistrate’s finding that the mesh screens were not “walls”. It said, correctly, that a finding as to a question of fact is not appealable under the Crimes (Appeal and Review) Act.

31 However, the proper construction of the term “wall” is a question of law. Although such an error was not pleaded, if the Magistrate adopted an incorrect interpretation of the term, which led his Honour to reach a factual finding that the mesh screens were not walls, then the error is one of law and attracts the jurisdiction of this Court.

32 It is important to appreciate that the definition of “wall” in clause 6(7) is not exhaustive. It “includes any structure or device (whether fixed or moveable) that prevents or impedes lateral airflow.” Consistent with the purposes of the legislation, that definition is intended to expand the conventional understanding of a “wall” (which tends to presume solid, permanent and/or impervious qualities). Thus, temporary, moveable, permeable and pervious structures may be classified as walls so long as they prevent or impede the passage of air into or out of the relevant space. It is due to clause 6(7) that structures not falling within the conventional definition of “walls” may still be classified as such when determining whether an offence has occurred under the legislation.

33 Given that clause 6(7) provides a more specialised definition of “wall” which is not intended to be exhaustive, the proper approach was to determine whether the mesh screens were “walls” in the ordinary sense and, if they were not, to consider whether they met the clause 6(7) definition.

34 The Magistrate made a factual finding that the mesh screens neither prevented nor impeded lateral airflow. However, that did not end the enquiry. It was also necessary to determine whether the mesh screens were “walls” on a commonsense interpretation of the term.

35 The Macquarie Dictionary defines the noun “wall” as follows:

“1. an upright work or structure of stone, brick, or similar material, serving for enclosure, division, support, protection, etc., as one of the upright enclosing sides of a building or a room, or a solid fence of masonry.

2. ( usually plural ) a rampart raised for defensive purposes.

3. anything which resembles or suggests a wall: a wall of prejudice.

4. a wall-like enclosing part, thing, mass, etc.: a wall of fire; a wall of troops.

5. an embankment to prevent flooding.

6. the external layer of structural material surrounding an object, as an organ of the body or a plant or animal cell.

7. Mountaineering a vertical or nearly vertical stretch of unbroken rock.”

36 The definition of “wall” in the Oxford Dictionary is:

1.a. A rampart of earth, stone, or other material constructed for defensive purposes.

1.b. An embankment to hold back the water of a river or the sea.

2.a. A defensive structure enclosing a city, castle, etc. Chiefly pl. , fortifications.

b. within the walls : within the ancient boundaries (of a city) as distinguished from the suburbs; hence fig. within the limits (of the Church, Europe, Christendom, etc.)

c. Her. A representation of an embattled wall used as a bearing.

3. fig. a. Applied to a person or thing that serves as a defence.

b. Applied to the sea, the navy or shipping (as Britain's external defence); also to an army (as the safeguard of a country).

4. An enclosing structure composed of bricks, stones, or similar materials laid in courses.
a. Each of the sides and vertical divisions of a building.
b. An enclosing structure built round a garden, field, yard, or other property; also, each of the portions between the angles of such an enclose.
c. wall of timber : a wooden partition, a fence.
d. As a place or means of torture.
e. The inner side of a sidewalk or pavement; the side next the wall.
…
6. A wall considered with regard to its surface.
a. The interior wall of an apartment.
…
8.a. Something that resembles a wall in appearance; a perpendicular surface forming an enclosure or barrier.
…”

37 The first-listed definition from the Macquarie Dictionary is relevant in the present case. Importantly, it defines a wall by reference to functions going beyond the prevention or inhibition of lateral airflow (i.e. enclosure, division, support, protection, etc). When this definition is adopted, it is clear that the mesh screens were, collectively or individually, a wall or walls. They were upright metal structures designed to divide or enclose the Western Terrace from the loading dock area.

38 This conclusion is supported by the various interpretations of what constitutes a “wall” in the provisions of the Building Code of Australia 2010, Class 2 to 9 Buildings, Part A1 Interpretation.

39 In my view, the Magistrate made an error of law by limiting his interpretation of the word “wall” to the construction of clause 6(7) of the Regulation. The proper conclusion was that the mesh screens constituted walls and therefore that the Western Terrace was “substantially enclosed.”

40 If I am wrong and the mesh screens do not fall within the definition of “walls” I will consider the other grounds of appeal. I will address the role of the Guidelines first, followed by each of the remaining grounds of review.

Ground 5 – Role of the Guidelines

41 The Magistrate discussed the effect of the Guidelines at [7] to [9] as follows:

“7. The defendant in its helpful written submissions argues that the guidelines set out in cl 6 of the Regulation are intended to be determinative of what is to be an “enclosed” public place for the purposes of the Act. That argument must be rejected, first and foremost because of s 23(1) of the Act which, in the usual manner, provides that regulations cannot be inconsistent with the Act so that, to the extent that the guidelines might purport to restrict the meaning of “enclosed” in s 4, they would be ultra vires.
8. Unfortunately the Act itself is silent on what the role of “guidelines” might be especially when they are, as here, expressly prescribed by regulation. The term does not appear to be one of art. Its usual implications, according to the Macquarie Dictionary, are “ 1. a line drawn as a guide for further writing, drawing etc. 2. ( usu plural ) a statement which offers advice on the implementation of policy: * the Bigge Report which established the guidelines for the administration of the colonies for the next two or three decades. – ANNE SUMMERS, 1975. 3. ( plural ) general instructions: the guidelines for an inquiry .” All of these terms clearly convey the idea that guidelines are not definitive, but provide at beat a set of “general instructions” or advice that will require adaptation to each particular case.
9. Clearly, however, Parliament has chosen to adopt the uncertain concept of “guidelines” in preference to the well-defined concept of a regulation, and has chosen to utilise the “guideline” concept within a regulation. The clear inference from these deliberate choices must be to differentiate a guideline from a regulation, most apparently with the aim of making the guideline more flexible than a regulation. Without any other guidance as to how the term is to be construed in the present context, it seems to me that, in keeping with guidelines being a “guide”, a party who complies with the guidelines will definitely not commit an offence, whilst non-compliance with a guideline will probably, but not necessarily, found a conviction. It is therefore necessary to determine whether the smokers’ gaming area was “enclosed” within the meaning of the guidelines in cl 6 of the Regulation.” (The magistrate’s emphasis added)

42 And at [23] his Honour stated:

“23. Whilst strictly unnecessary for this decision, in deference to the substantial submissions of the parties, I record my finding that, regardless of the guidelines, the Western Terrace is not “substantially” enclosed within the meaning of s 4 of the Act.”

43 Ground 5(a) alleges that the Magistrate erred in finding that the Guidelines did not conclusively determine whether a public place is “substantially enclosed”. It was claimed that his Honour erred in making his alternative finding that the Western Terrace was not "substantially" enclosed within the meaning of s 4 of the Act. Ground 5(b) alleges in the alternative that the Magistrate failed to give any or any adequate or proper reasons for his alternative conclusion at [23] of his Honour’s judgment. Blacktown Workers responded that his Honour’s reasons were legally sufficient.

44 Although the parties agree that the Guidelines, on their proper construction, were determinative (see para [1] of Blacktown Workers’ notice of contention), it is necessary to determine the correctness of that approach.

45 In Bukorovic v the Registrar of the WCC [2010] NSWSC 507 I made the following general observations concerning the legislative status of instruments described as “Guidelines” (at [16] – [19]):

“[16] … Guidelines in general have varying legal effects. Some guidelines amount to delegated legislation and are inflexible. Others exhibit no legislative intention to create precise or inflexible rules: see Riddell v Secretary, Dept of Social Security (1993) 42 FCR 443.

[17] Formtec’s counsel referred to two cases in relation to guidelines, namely Broadbridge v Stammers (1987) 16 FCR 296; (1987) 14 ALD 469; (1987) 76 ALR 339 and Apthorpe v Repatriation Commission (1987) 77 ALR 42; (1987) 13 ALD 656.

[18] In Apthorpe v Repatriation Commission the plaintiff was a veteran in receipt of a pension assessed at 70% of the general rate. He sought a review of the assessment relying, in part, on a failure of the tribunal to comply with relevant guidelines. The Full Court of the Federal Court approved the general propositions (at [26]):

“26 In Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441 at 452–3, Sheppard J., with whom Beaumont and Burchett JJ. agreed, referred to the danger of looking to guidelines in a case such as this. His Honour said:
‘The danger of looking at policies or guidelines as a source of the rights of a person who claims to have been aggrieved by administrative action is pointed up by Fox J. in his judgment in Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 64 ALR 466. That was a case involving the construction of s 273 of the Customs Act 1901. In particular it concerned the respondent’s quota allocation. There was in force a scheme formulated for the allocation of base tariff quotas. In this context Fox J. said (at p 470):
The law is to be ascertained by reference to the enactment under which the decision is made: see Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 ; (1982) 42 ALR 676; Gurleven v Minister for Immigration & Ethnic Affairs unreported, Full Federal Court, 24 February 1984. In the present case, this is s 273. It does not mention quota, it deals with tariff rates and does so totally without reference to individuals or companies. The quota scheme has been created under the section, but is a long way from its language. Understandably, the validity of the scheme has not been challenged before us.
It does not seem to me that because of the lack of more specific legislation, one should try to elevate the scheme to the status of law. Private rights of action may conceivably arise out of its operation, but that is a different matter. The quota scheme may be controlled and limited in some respects, having in mind the sections of the Act under which it operates, but it is not, in reality or in effect, a statute, and its various provisions are not to be construed as if they were of legislative effect.
…
Similarly, there is no ground for elevating the guidelines here to the status of law.’

[19] In Broadbridge v Stammers the Full Court of the Federal Court considered a manual setting out policies in respect of the decision maker’s powers. The Full Court stated (at 300):

‘The manual requires decisions upon many discretionary matters and matters of judgment. It is not cast with the precision of a statute. Clearly this is an area in which guidelines may be useful and necessary. Much has to be left to the person selected as the delegate to give effect to them. It is an administrative area where one would expect that the delegate would have to direct his mind to the matters laid down in the policy but where he would not be bound, in the strict legal sense, by every word in the policy manual. Rather one would expect he would be open to correction or discipline by the Commission …’”

46 As the Magistrate observed, the Act is silent insofar as the status of the Guidelines is concerned. The Regulation says nothing about the force of the Guidelines. It is also true that the legislature has, by virtue of s 23(2)(e) of the Act, deliberately adopted the concept of “guidelines”. Further, whereas the Act gives the Minister power to issue guidelines as to what constitutes “reasonable steps” to prevent the spread of smoke (s 10(3)), and whereas compliance with those guidelines is deemed to constitute “reasonable steps” (s 10(4)), there is no provision stating that failure to comply with the guidelines issued under s 23(2)(e) of the Act will found a conviction.

47 Notwithstanding this, it is my view that the Guidelines are mandatory. There are two principle reasons for this. Firstly, they are written in a prescriptive style. The directive word “prescribe” is adopted in clause 6(1) instead of the permissive word “provide”. Clause 6(2) begins with the words, “A public place is considered to be substantially enclosed if…” in preference to more discretionary terms. In my view, the legislature’s adoption of the word “guidelines”, insofar as it suggests that the applicable procedures are optional, is unfortunate. I do not believe that clause 6 of the Regulation sets out optional processes.

48 Secondly, the question of whether a public place is substantially enclosed is not one that I would regard realistically as involving any element of discretion. The matter should readily be capable of determination by the application of an objective test. Having regard to the interests of proprietors of other clubs (and similar venues) who have or who may wish to have a designated smoking area in their establishment, it is important that the process by which the enclosure of public places is assessed be a predictable one. The Guidelines provide a straightforward model by which this calculation can be made in a particular case. It provides a rule (TAEA ÷ TNCWA) and explains how the TAEA and TNCWA are calculated. It then provides that if the quotient exceeds ¾ (or 75 per cent), the relevant place is considered “substantially enclosed” for the purposes of the Act.

49 If the Guidelines are mandatory, they will be consistently administered and proprietors will be in no doubt as to their legal rights and obligations. If they are not binding, an unwarranted degree of discretion is introduced into what ought to be an objective exercise. I have decided that the Guidelines, notwithstanding their name, are an integral part of the legislative scheme (Paice v Hill [2009] NSWCA 156 per Allsop P at [3]) and should be treated as binding. Failure to adhere to the Guidelines will necessarily found a conviction.

Grounds (1) and (2) - Whether the Magistrate misconstrued the statute and Guidelines

50 The Magistrate stated at [13] - [17] of his reasons:

“Open Directly to the Outside:”
13. On the north side of the Western Terrace are a 5.3m and a 1.85m mesh screen that face onto a covered walkway. The north side of that walkway at this point and continuing east is itself wire mesh that borders an uncovered area that is open to the sky. There would seem to be little difficulty in concluding, as I do, that as far as these particular screens are concerned, they open “directly to the outside”.
14. One further 6.62m north facing screen faces towards the same walkway, but is separated from it by a covered area the width of the driveway access to the loading dock. The largest screen faces west along the drive way to the loading dock, and one small 2.56m screen faces east along the walkway.
15. Each case, will of course, be a matter of degree. The fact that household windows have eaves, or open onto verandahs, does not in my view mean that they do not open “directly to the outside”. In the present context, given that the purpose of the regulations is clearly to ensure that cigarette smoke does not enter areas where smoking is prohibited, and is not trapped nor allowed to stagnate or concentrate in areas where smoking is permitted, opening “directly” to the outside carries the connotation of unobstructed movement of air (and smoke) to the outside air without being trapped, stagnant or concentrated, and without passing through other places occupied by people. If this is correct, the direction which each screen faces is of little moment provided unobstructed and otherwise permissible air flow is sustainable.
16. It follows that, in my view, the screens all “open directly to the outside” and provided they otherwise are properly classified as “gaps”, and not as “walls”, are not to be included in the TAEA.
17. Under reg 6(7) “ wall includes any structure or device (whether fixed or moveable) that prevents or impedes lateral airflow”. It is clearly not the prosecution’s case that the mesh screens “prevent” lateral airflow: the issue is whether they “impede” that airflow. Equally clearly, there is no dispute that the screens are a “structure or device” within the meaning of reg 6(7).” (emphasis in original)

51 Ground 1(a) alleges that the Magistrate erred in law by misconstruing the relevant legislation. The Department of Health submitted that his Honour erred in construing the phrase "opens directly to the outside" as only requiring that the gap permit "unobstructed movement of air (and smoke) to the outside air without being trapped, stagnant or concentrated, and without passing through other places occupied by people". Ground 1(b) contends that the Magistrate erred in law by concluding, as a consequence of this erroneous construction, that the direction in which each of the mesh screens faced was "of little moment provided unobstructed and otherwise permissible airflow is sustainable".

52 The second ground of appeal alleges that the Magistrate should have concluded that, on the proper construction of clause 6, in order for any "gap" to "open directly to the outside", it must open directly to the open air outside of the building or structure in question. Otherwise, it was submitted, the word ‘directly’ would have no work to do. The Department of Health emphasised that the Magistrate construed the phrase "open directly to the outside" as qualifying the smoke or air which passes through the gap, which smoke and air, on his Honour's findings, eventually finds its way to the outside air without passing other people or being substantially impeded. (Department of Health’s emphasis).

53 Counsel for Blacktown Workers submitted that the Department of Health misstated the findings of the Magistrate and mischaracterised his Honour's factual findings as being findings on a "matter of law". It was submitted that a fair reading of the Magistrate’s decision showed that his Honour regarded the loading dock and walkway immediately adjoining the mesh screens as being "outside" areas. According to Blacktown Workers the Magistrate did so after first noting the physical properties of those areas and the fact that smoke could pass freely through them without being trapped, stagnant or concentrated. According to Blacktown Workers, the Magistrate’s reference to "outside air" is a reference to the air outside of the relevant space, that is, the air outside of the Western Terrace.

54 So far as Blacktown Workers submission that the statutory construction of the words “opens directly to the outside” is a finding of fact, I do not agree. If the approach of the construction of a clause or phrase involves a misunderstanding of the meaning of those words, in effect his Honour has posed for himself the wrong statutory question for determination: see Australian Gas Light Co v Valuer General (1940) SR 126 at 138; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Director of Public Prosecutions v Belani [2005] NSWSC 1013 at [27]; and Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308 I am satisfied that the appeal is based upon a ground that involves a question of law alone.

55 The Magistrate stated that there would seem to be little difficulty concluding that the screens facing the uncovered walkway open “directly to the outside”. His Honour then stated that each case would be a matter of degree. But Clause 6(5) does not import any notion of degree. The words are clear: “a gap in a wall that opens directly to the outside …”

56 The Magistrate applied a rationale that given that the purpose of the Regulation was clearly to ensure that cigarette smoke did not enter areas where smoking was prohibited, and was not trapped nor allowed to stagnate or concentrate in areas where smoking was permitted, opening “directly” to the outside carried the connotation of unobstructed movement of air (and smoke) to the outside air without being trapped, stagnant or concentrated, and without passing through other places occupied by people. His Honour then stated that if this was correct, the direction that each screen faces was of little moment proved unobstructed and otherwise permissible airflow was sustainable.

57 With respect, his Honour appears to have misunderstood the question for determination. The construction of clause 6(5) did not require his Honour to assess the ease with which air could pass through or escape from the building or structure, or the path it was required to take through a space before it was dispersed. Rather, it required an assessment of whether the building or structure said to constitute the “gap” (i.e. the mesh screens) led directly to the outside. In my view, this misunderstanding caused his Honour to introduce unnecessary complexity into the construction of clause 6(5) and ultimately, to err.

58 Grounds 1(a), 1(b) and 2 all hinge on the proper construction of clause 6(5) of the Regulation. In my view, bearing in mind the object of the legislation (which, at its core, is to minimise the risks associated with passive smoking) the phrase “opens directly to the outside” should be construed as requiring that the gap lead directly to the air outside the building or structure in question. It follows that the Magistrate erred in construing the phrase, “opens directly to the outside”. Grounds 1(a), 1(b) and 2 are accordingly upheld.

Grounds 3 and 4

59 The third ground alleges that, by reason of the matters set out in grounds 1 and 2, the Magistrate erred in finding that the mesh screens (which his Honour had found to be “gaps”) fell within clause 6(5), i.e. they were gaps which opened “directly to the outside".

60 The fourth ground contends that by reason of the matters set out in ground 3, the Magistrate was bound, as a matter of law, to find that each of the mesh screens did not "open directly to the outside" and, as a consequence, had to be included within the TAEA. Counsel for the Department of Health submitted that the only legal conclusion open to the Magistrate was that the screens did not "open directly to the outside". According to the Department of Health this follows as a matter of simple language as the Magistrate found that the screens faced onto a covered walkway.

61 Counsel for Blacktown Workers submitted that the Department of Health’s submissions overlooked the fact that the Magistrate found that the mesh screens were not "walls". Even if the mesh screens could be said to constitute “gaps”, they could not be “gaps” in any "wall" or "ceiling" because, insofar as they formed part of the vertical boundary of the Western Terrace, they occupied the entire vertical space; there was no “wall” or “ceiling” of which they formed part. Blacktown Workers submitted that it follows that the screens cannot form part of the TAEA for the purposes of clauses 6(4)(a) or 6(5) of the Regulation.

62 In its submissions in reply, Counsel for the Department of Health submitted that there was no doubt that his Honour found that the mesh screens were gaps in walls within the meaning of clause 6(5) of the Regulation.

63 I accept that if the mesh screens are “gaps”, they are not gaps in any wall or ceiling. Accordingly, clauses 6(4)(a) or 6(5) of the Regulation do not arise. The consequence would normally be that the mesh screens would not be included in the TAEA. However, as I have stated, the proper conclusion is that the mesh screens are “walls”.

64 The result is that the appeal is upheld. The decision of his Honour Magistrate R A Brown dated 7 December 2009 is set aside. As there may be argument as to whether the offence is proved as to penalty, the matter is remitted to the Local Court to be determined according to law.

65 Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff’s costs as agreed or assessed.

The Court orders:

(1) The decision of his Honour Magistrate R A Brown dated 7 December 2009 is set aside.

(2) The matter is remitted to the Local Court to be determined according to law.

(3) The first defendant is to pay the plaintiff’s costs as agreed or assessed.