Muscat v Magistrates' Court of Victoria
[2018] VSC 650
•31 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 05298
| GRAHAM MARK MUSCAT | Appellant |
| v | |
| MAGISTRATES’ COURT OF VICTORIA at RINGWOOD | First Respondent |
| and | |
| SOUTHERN ALPINE RESORT MANAGEMENT BOARD | Second Respondent |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 October 2018 |
DATE OF JUDGMENT: | 31 October 2018 |
CASE MAY BE CITED AS: | Muscat v Magistrates’ Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2018] VSC 650 |
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APPEAL – Appeal from Magistrates’ Court under s 272, Criminal Procedure Act 2009 (Vic) against order of Magistrate dismissing charge under Occupational Health and Safety Act 2004 (Vic) – Whether dismissal of charge a ‘final order’ that may be appealed under s 272, Criminal Procedure Act 2009 – Appeal competent – Criminal Procedure Act 2009 (Vic) s 272.
OCCUPATIONAL HEALTH AND SAFETY – Whether Magistrate misconstrued s 23(1), Occupational Health and Safety Act 2004 – Meaning of ‘persons other than employees of the employer’ in s 23(1) – Whether s 23(1) applies to employees of independent contractors engaged by an employer – Independent contractors and their employees are ‘persons other than employees’ for the purposes of s 23(1) – Whether appropriateness of charge preferred by informant an irrelevant consideration – Appeal allowed – Remitted for review by same Magistrate – Occupational Health and Safety Act 2004 (Vic) ss 21, 23.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C Carr | Victorian WorkCover Authority |
| For the Respondent | Mr P Rozen | K&L Gates |
HER HONOUR:
On his way to work at the Lake Mountain Alpine Resort on 4 September 2015, Brett Weinberg noticed a tall eucalypt tree that had fallen close to the road. The fallen tree was a ‘hanger’, suspended in the branches of another tree. As the operations manager of the Resort, Brett Weinberg asked two other workers, Graeme Weinberg and Jarrod Ackerman, to have a look at the tree. They did so, with Christopher Neal, and together the three men decided that they would remove the tree.
Mr Ackerman used a chainsaw to cut the tree, while the other two men positioned themselves on the road to direct traffic. After Mr Ackerman cut through the tree, it suddenly dropped down and fell on him. He was seriously injured.
Brett Weinberg and Graeme Weinberg were employed by the Southern Alpine Resort Management Board,[1] which manages the Resort. Mr Ackerman and Mr Neal were employed by Belgravia Health and Leisure Group Pty Ltd, which was contracted by the Board to manage the resort on a day to day basis.
[1]Formerly the Lake Mountain Alpine Resort Management Board.
Graham Muscat is an inspector appointed under the Occupational Health and Safety Act 2004 (Vic). On 31 August 2016 he charged the Board with two offences against the OHS Act arising out of the incident on the Lake Mountain road on 4 September 2015. The first charge, under s 21(1) of the OHS Act, concerned the Board’s employees Brett Weinberg and Graeme Weinberg. The second charge concerned Belgravia’s employees, Mr Ackerman and Mr Neal, and was laid under s 23(1) of the OHS Act.
The charges were heard at the Magistrates’ Court at Ringwood on 25 and 26 September 2017. On 4 December 2017 the Magistrate dismissed both charges and gave written reasons for his decision.[2] He dismissed the first charge because he was not satisfied that the prosecution had proven all elements of the offence. In relation to the second charge, he accepted the Board’s submission that s 23 of the OHS Act did not apply to employees of independent contractors such as Mr Ackerman and Mr Neal. On that basis, the Magistrate found that the Board had no case to answer and dismissed the charge.
[2]Muscat v Lake Mountain Alpine Resort Management Board, Case No. G12450136, reasons for decision of Magistrate Marc Sargent dated 4 December 2017 (Reasons).
Mr Muscat has appealed the Magistrate’s order dismissing the second charge to this Court, under s 272 of the Criminal Procedure Act 2009 (Vic). The two questions of law raised on the appeal both concern the Magistrate’s interpretation of s 23 of the OHS Act, and its relationship with s 21 of the OHS Act.
The Board says that the appeal is not competent because the order dismissing the second charge was not a final order that may be appealed under s 272 of the Criminal Procedure Act. As to the questions of law raised on the appeal, the Board submits that the Magistrate’s interpretation of s 23 of the OHS Act was correct.
The issues for resolution in the appeal are:
(1) Was the dismissal of the second charge a ‘final order’ for the purposes of s 272 of the Criminal Procedure Act?
(2) Does s 23(1) of the OHS Act apply to employees of independent contractors of the employer?
(3) Did the Magistrate have regard to an irrelevant consideration, being the appropriateness of bringing the second charge under s 23(1)?
(4) If there was an error of law, should the case be remitted to the Magistrates’ Court?
For the reasons that follow I have decided that:
(1) The order dismissing the second charge was a final order in the proceeding for the purposes of s 272 of the Criminal Procedure Act. The appeal is therefore competent.
(2) Section 23(1) of the OHS Act applies to ‘persons other than employees’ of the employer, which includes employees of independent contractors of the employer as well as members of the public.
(3) The appropriateness of Mr Muscat’s decision to bring the second charge under s 23 rather than s 21 was an irrelevant consideration for the Magistrate in determining the charge.
(4) The second charge should be remitted to the Magistrates’ Court constituted by the same Magistrate who heard and determined the charges in 2017.
Was the dismissal of the second charge a ‘final order’?
Section 272 of the Criminal Procedure Act provides for appeals to the Supreme Court on a question of law. Section 272(1) provides:
A party to a criminal proceeding (other than a committal proceeding) in the Magistrates' Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding.
Mr Muscat appeals against ‘the whole of the final order made on 4 December 2017 by Mr M Sargent, Magistrate, in the Magistrates’ Court at Ringwood in Case No. G12450136 whereby His Honour dismissed charge 2’. The certified extract of the order records it as ‘Dismissed. Merits of the case.’ On its face the certified extract indicates that the Magistrate dismissed the second charge on its merits and that the Board was acquitted of the charge.[3]
[3]Keech v County Court of Victoria [2017] VSC 525, [58] (Keech).
The Board submitted that, despite the wording of the certified extract, as a matter of fact the second charge was dismissed on the basis that it was an abuse of process. An order dismissing a proceeding as an abuse of process is generally regarded as interlocutory because it does not finally determine the rights of the parties.[4] On that basis, the Board submitted that the order dismissing the second charge was interlocutory and was not a final order that could be appealed under s 272 of the Criminal Procedure Act.
[4]Relying on Re Luck (2003) 203 ALR 1, [9]; Brereton v Sinclair (2000) 2 VR 424, [12]; Australian Securities and Investments Commission v Lindberg (No 2) [2010] VSCA 19, [21]; Tampion v Anderson (No 2) [1973] VR 829, 830–1.
While I accept that the certified extract is not conclusive proof of the nature of the order made by the Magistrate,[5] I do not accept that the second charge was in fact dismissed as an abuse of process. None of his Honour’s Reasons, the transcript of the hearing or the Board’s written submissions to the Magistrate supports that conclusion. Counsel for the Board introduced the submission as a no case submission, saying ‘our position in relation to the second charge is that it’s misconceived because it was brought under the wrong section of the Occupational Health and Safety Act.’ There followed detailed submissions about the construction of ss 21 and 23 of the OHS Act, which were accepted by the Magistrate in his Reasons. His Honour concluded that the second charge ‘was laid under the incorrect provision’ and that there was therefore no case to answer.[6]
[5]Magistrates Court Act 1989, s 18(5); Evidence Act 2008, s 178(5); Keech, [58]–[60].
[6]Reasons, [25].
The Board made an alternative submission that it was an abuse of process to bring the second charge under s 23 of the OHS Act because that deprived it ‘of a defence that would be available to it had the charge been brought under s 21(3)’.[7] I describe this as an alternative submission, because there could be no abuse of process if s 23 simply did not apply to the facts charged. The Magistrate plainly accepted the Board’s primary submission that s 23 did not apply and that the second charge had been laid under the wrong section.
[7]Reasons, [15]. As discussed below at [39], the ‘defence’ of control is in fact an element of an offence under s 21(1) in relation to a deemed employee under s 21(3).
Even if the second charge had been dismissed as an abuse of process, in my view the order would still have been a ‘final order of the Magistrates’ Court in that proceeding’ for the purposes of s 272 of the Criminal Procedure Act. The much debated distinction between final and interlocutory orders in other contexts does not really inform whether an order is a final order in a proceeding that may be appealed under s 272. I agree with the observations of Lansdowne AJ in Neuss v Magistrates’ Court[8] that:
Dismissal finally concludes the matters in that particular proceeding between the parties, whether or not dismissal is on the basis of the merits. It is not to the point that, in some circumstances, fresh proceedings may issue arising from the same subject matter.
[8][2013] VSC 321, [57].
The order dismissing the second charge was a final order of the Magistrates’ Court in proceeding G12450136, and can be appealed under s 272 of the Criminal Procedure Act.
Does s 23(1) of the OHS Act apply to employees of an independent contractor?
The first question of law identified in the notice of appeal is whether the Magistrate erred in concluding that the expression ‘persons other than employees’ in s 23 of the OHS Act should be interpreted as ‘meaning members of the public, and not independent contractors who have a contractual relationship with the employer’, or as ‘applying to members of the public or to circumstances not otherwise specifically covered by s 21’.
Mr Muscat submits that the Magistrate read s 23 as if the words ‘persons other than employees of the employer’ were followed by additional words of qualification, to the effect of ‘[who are] not independent contractors who have a contractual relationship with the employer’. He submits that, in this way, the Magistrate limited the operation of s 23 in a way that cannot be justified by the statutory text, context or purpose.
OHS Act – text, context and purpose
Part 3 of the OHS Act deals with ‘General duties relating to health and safety’ and has six divisions:
(a) Division 1 – The concept of ensuring health and safety;
(b) Division 2 – Main duties of employers;
(c) Division 3 – Duties of self-employed persons;
(d) Division 4 – Duties of employees;
(e) Division 5 – Duties of other persons;
(f) Division 6 – Other matters.
Divisions 2 to 5 of Part 3 contain various duties, in the form of indictable offences. Those indictable offences may be heard and determined summarily – as occurred in this case.
Section 23(1) is headed ‘Duties of employers to other persons’ and is the third of three offences in Part 3, Division 2 of the OHS Act. Section 23(1) provides:
An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
Section 21, under which the first charge against the Board was laid, relevantly provides:
Duties of employers to employees
(1)An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2)Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following—
(a)provide or maintain … systems of work that are, so far as is reasonably practicable, safe and without risks to health;
…
(3)For the purposes of subsections (1) and (2)—
(a)a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor; and
(b)the duties of an employer under those subsections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.
Section 21(3)(a) extends the meaning of ‘employee’ in s 21(1) and (2). Section 21(3)(b) extends the duties of an employer under those sub-sections in relation to matters over which it has control. The effect of s 21(3) is to extend the duty that an employer owes to its employees to its independent contractors and their employees, but only in relation to matters over which the employer has control.
In the rest of the OHS Act,[9] the word ‘employee’ has a narrower meaning. Section 5(1) defines ‘employee’ to mean ‘a person employed under a contract of employment or contract of training’. Section 5(2) provides that police are taken to be employed by the Crown under a contract of service, despite any contrary rule of law. An ‘employer’ is defined in s 5(1) to mean ‘a person who employs one or more other persons under contracts of employment or contracts of training’.
[9]Excepting s 35 – Duty of employers to consult with employees, where s 35(2) also extends the meaning of ‘employee’ to include an independent contractor engaged by the employer and any employees of the independent contractor.
The key concept of reasonable practicability is given content in s 20(2), which lists various matters to which regard must be had in determining what is reasonably practicable in relation to ensuring health and safety.
The legislature’s objects in enacting the OHS Act are set out in s 2:
(1)The objects of this Act are—
(a)to secure the health, safety and welfare of employees and other persons at work; and
(b)to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and
(c)to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons; and
(d)to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards—
having regard to the principles of health and safety protection set out in section 4.
(2)It is the intention of the Parliament that in the administration of this Act regard should be had to the principles of health and safety protection set out in section 4.
The principles of health and safety protection set out in s 4 are, relevantly here:
(1)The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.
(2)Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.
(3)Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.
…
Magistrate’s Reasons
The Magistrate accepted the Board’s submission that s 21(3) deemed Mr Ackerman to be an employee of the Board, to whom it owed duties under s 21(1) and (2) in respect of matters within its control.[10] His Honour referred to R v ACR Roofing Pty Ltd,[11] in which it was held that ‘engaged’ in s 21(3) is not limited by privity of contract with an employer, but extends to the engagement of a contractor under one or more sub-contracts.[12] He concluded that the effect of s 21(3) was to include Mr Ackerman in any obligation owed by the Board to its employees under s 21.[13] It is apparent that the Magistrate was of the view that the second charge could have been laid under s 21.
[10]Reasons, [16]–[18].
[11](2004) 11 VR 187 (ACR Roofing).
[12]Reasons, [19].
[13]Reasons, [24].
His Honour then considered the scope of operation of s 21 and s 23. He referred to Saraswati v R[14] as authority for the proposition that, where a statute deals specifically with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation. He then concluded:[15]
Having regard to the foregoing, I am satisfied s 21 applies to employees and independent contractors over which the employer has control, and that s 23 should be read as applying to members of the public or to circumstances not otherwise specifically covered by s 21. I am satisfied that s 23 is not intended by Parliament to be an alternative to s 21, but as an addition. In my view, Mr Ackerman and Mr Neal, as employees of independent contractor Belgravia Leisure, were covered by s 21 of the Act. As the work crew was a mixture of Board and Belgravia employees and subject to instruction and control by Mr Brett Weinberg, I can see no reason, given s 21(3), to prosecute the Board under different provisions of the Act.
[14](1991) 172 CLR 1.
[15]Reasons, [23].
As already mentioned, his Honour found that the second charge was laid under the incorrect provision and dismissed the charge because the Board had no case to answer.
Section 23 applies to employees of independent contractors
There was no dispute about the applicable principles of statutory construction.[16] One starts and ends with the text of the relevant provision, with the object of construing it so that its legal meaning is consistent with the language used and the legislative purpose of the statute. Legislative purpose is determined by considering the text of the relevant provisions in the context of the entire statute, as well as the existing state of the law, the mischief that the statute was intended to remedy, the history of the legislative scheme and the extrinsic materials.[17]
[16]Mr Muscat referred to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ) and Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39]. The Board referred to K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 315 (Mason J), CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ), Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [70] (McHugh, Gummow, Kirby and Hayne JJ), Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1, [57] (French CJ, Hayne, Kiefel and Nettle JJ) and SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936, [36]–[37] (Gageler J).
[17]Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2016] VSCA 328 (Colonial Range), [47]–[48]; Ian Street Developer Pty Ltd v Arrow International Pty Ltd (Ian Street) [2018] VSC 14, [52]–[53].
Where there is a choice to be made between possible meanings of a provision, a meaning that promotes the purpose or object underlying the statute is to be preferred over one that does not.[18] In the case of legislation with a beneficial or protective purpose – which includes occupational health and safety legislation – even a penal provision must be construed so as to give the fullest possible effect to the legislative purpose.[19]
[18]Interpretation of Legislation Act 1984, s 35(a).
[19]ACR Roofing, [43].
It may be permissible to depart from the literal meaning of a provision if that meaning conflicts with the legislative purpose.[20] There are, however, limited circumstances in which words may be read in to a provision. It may be done in the case of ‘simple, grammatical, drafting errors’ which would defeat the object of the provision if not corrected. It may not be done in order to fill gaps in legislation. The task remains statutory construction, not judicial legislation.[21]
[20]Colonial Range, [52]–[53]; see also Ian Street at [56]–[57].
[21]Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, [38]–[40] (French CJ, Crennan and Bell JJ), citing Lord Diplock’s speech in Wentworth Securities Ltd v Jones [1980] AC 74, 105–106.
Here, the dispute concerns the meaning of the words ‘persons other than employees of the employer’ in s 23(1) of the OHS Act. The literal meaning of those words, aided by the definitions of ‘employee’ and ‘employer’ in s 5(1), is clear: an employer owes the duty in s 23(1) to any person who is not employed by the employer under a contract of employment or contract of training. The only persons excluded from the scope of the duty are employees as defined. Independent contractors and their employees are not expressly excluded.
However, the Magistrate accepted the Board’s submission that the words ‘persons other than employees of the employer’ in s 23(1) do not include persons who are brought within the scope of the duty in s 21(1) by s 21(3). The effect of this construction of s 23(1) is to read additional words into it, as follows:
An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer (except for an independent contractor engaged by the employer and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control) are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer. [additional words in bold]
The Board submits that this alteration to the literal meaning is necessary to give effect to the legislative purpose, which it says is evident from the statutory context, the history of the provision, and the express objects of the OHS Act.
The Board’s principal argument is a contextual one, derived from the scope of the duty in s 21(1), as extended by s 21(3). Control is an element of an offence against s 21(1) involving an independent contractor.[22] The Board submits that, having deliberately confined the duty owed by an employer to an independent contractor to matters over which the employer has control, Parliament cannot have intended the employer also to owe that independent contractor a duty under s 23(1), in which control is not an element. It relies on McHugh J’s analysis in Saraswati v R[23] and several other authorities in which general provisions have been read down to give way to specific provisions.[24]
[22]Glenister v Magistrates’ Court of Victoria [2014] VSC 265, [97].
[23](1991) 172 CLR 1 (Saraswati).
[24]Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (No. 2) (1980) 44 FLR 455, 468–9; Teys (2001) 119 A Crim R 398, [15]–[17]; Hoffman v Chief of Army (2004) 137 FCR 520, [7]–[27].
Saraswati concerned the interaction between three offences under the Crimes Act 1900 (NSW): two specific offences, which were subject to a 12-month limitation period, and one general offence, which had no limitation period. By a majority,[25] the High Court held that conduct that was covered by either of the specific offences could not be the subject of a charge under the general offence. McHugh J, with whom Toohey J agreed, reached that conclusion by applying the rule that ‘when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation’.[26] The rule was derived from Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia,[27] which concerned the interaction between a general power and a specific power qualified by some condition or limitation.
[25]Toohey, Gaudron and McHugh JJ, Deane and Dawson JJ dissenting.
[26]Saraswati, 23. Gaudron J agreed in the result, but reached that conclusion by a different route.
[27](1932) 47 CLR 1 (Anthony Hordern).
The Anthony Hordern principle has been considered by the High Court more recently, in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom[28] and the Malaysian Declaration Case.[29] Those authorities make it clear that the principle must be applied subject to the text, context and purpose of the particular statute. It is a means of resolving inconsistency between two provisions that cannot sensibly operate concurrently. It has no application where there is no inconsistency to be resolved.[30]
[28](2006) 228 CLR 566 (Nystrom).
[29](2011) 244 CLR 144.
[30]Nystrom [48] (Heydon and Crennan JJ), [59], [67] (Gummow and Hayne JJ); Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (Malaysian Declaration Case) [50] (French CJ), [95] (Gummow, Hayne, Crennan and Bell JJ), [236]–[237] (Kiefel J).
Here, the Board says that there is a conflict between s 21 and s 23 because the offence in s 21(1), as extended by s 21(3), is subject to a condition or limitation that is not present in s 23(1) – namely, the element of control. I cannot agree. In my view, the two provisions create separate offences, both of wide application, which can have a ‘sensible concurrent operation’[31] and which may overlap in cases involving independent contractors. The fact that the offences have different elements does not compel the conclusion that one should be read as subject to the other. Control, in s 21(3)(b), is merely an element of the offence; it is not a defence, condition or limitation that gives rise to the kind of repugnancy that had to be resolved in Saraswati.
[31]Nystrom [48].
The Board submits further that construing s 23(1) to apply to independent contractors would have the effect that the specific offences in Division 5 of Part 3 would have no work to do. Again, I cannot agree. Section 23(1) casts a duty on an employer to ensure, so far as is reasonably practicable, that persons other than its employees are not exposed to risks to their health and safety arising from the conduct of the employer’s undertaking. The duties in Division 5 are held by ‘other persons’ – such as persons who manage or control workplaces, designers of plant and buildings, manufacturers and suppliers – in relation to specific matters. Those provisions all have work to do, although in some cases they may overlap with the duty holder’s obligations, in its capacity as an employer, under s 23(1) – or indeed under s 21(1).
Both parties called in aid the legislative history of ss 21 and 23 of the OHS Act, and both referred me to Nettle JA’s summary of the history of s 21 of the Occupational Health and Safety Act 1985 (1985 Act) in ACR Roofing.[32] Since then, the 1985 Act has been repealed and replaced by the OHS Act. Section 22 of the 1985 Act applied to both employers and self-employed persons, in relation to persons other than their employees. There are two equivalent provisions in the OHS Act: s 23, which applies to employers, and s 24, which applies to self-employed persons.
[32]ACR Roofing, [44]–[49].
I cannot discern from this history any legislative intent to exclude independent contractors and their employees from the scope of s 23. Sections 21 and 23 of the OHS Act were enacted at the same time, as part of a comprehensive package designed to ‘modernise Victoria's occupational health and safety legislation to ensure that it meets the needs of a diverse range of workplaces’.[33] This alone suggests that Parliament intended the two provisions to operate concurrently, according to their terms. If it had intended s 23 to apply only to members of the public, or to exclude independent contractors and their employees, it could have expressed that intention in the words of the provision.
[33]Victoria, Parliamentary Debates, Legislative Assembly, 18 November 2004, p 1760 (Mr Hulls, Minister for WorkCover).
I am conscious that in Whittaker v Delmina Pty Ltd[34] Hansen J described s 22 of the 1985 Act as ‘designed to prevent harm to members of the public’. That case, however, concerned risks to the safety of members of the public and did not involve independent contractors. I do not regard this description as a basis for concluding that s 23 of the OHS Act applies only to members of the public, to the exclusion of independent contractors and their employees.
[34](1998) 87 IR 268, 277–8.
Giving the words ‘persons other than employees of the employer’ their literal meaning would, in my view, promote the objects in s 2(a), (b) and (c) of the OHS Act and the principle that ‘employees, other persons at work and members of the public [should] be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances’.[35] The purposes expressed by the legislature would not, on the other hand, be advanced by reading words of limitation into s 23.
[35]OHS Act, s 4(1).
It follows that I am unable to agree with the construction of s 23(1) preferred by the Magistrate, at the urging of the Board. The duty of an employer under s 23(1) of the OHS Act is owed to independent contractors and their employees, concurrently with the duty in s 21(1) as extended by s 21(3).
This conclusion is a sufficient basis to set aside the order of the Magistrates’ Court dismissing the second charge. However, in light of the orders I propose to make, it is necessary to say something about the other ground of appeal.
Could the Magistrate have regard to the appropriateness of the second charge?
The second question of law raised by the notice of appeal is whether the Magistrate erred by taking into account an irrelevant consideration, in having regard to the appropriateness of the decision to charge the Board with the offence created by s 23 of the OHS Act, rather than the offence created by s 21 of that Act, when deciding whether the second charge was made out.
I have found that the Magistrate dismissed the second charge because he considered that s 23(1) of the OHS Act did not apply to the facts charged. If that conclusion was correct, Mr Muscat had no choice to make between s 21 and s 23.
However, as I have explained above, the two provisions can apply to the same conduct. This brings back into focus the appropriateness of Mr Muscat’s decision to bring the second charge under s 23 rather than s 21. There are some indications in the Reasons that the Magistrate considered this choice inappropriate.[36]
[36]Reasons, [18], [23], [24], [25].
In Australia there is strict separation of prosecutorial and judicial functions, and a court may not canvass the exercise of a prosecutor’s discretion even if it considers that a different charge should have been laid.[37] While a court may express an opinion about the appropriateness of a particular charge:[38]
… it should recognise that in doing so it is doing no more than attempting to influence the exercise of a discretion which is not any part of its own function and that it may be speaking in ignorance of matters which have properly motivated the decision of the prosecuting authority.
[37]Elias v R (2013) 248 CLR 483 (Elias), [34]. See also Barton v R (1980) 147 CLR 75, 95–6 (Gibbs ACJ and Mason J); Jago v District Court (1989) 168 CLR 23, 39 (Brennan J); Maxwell v R (1996) 184 CLR 501 (Maxwell), 534 (Gaudron and Gummow JJ).
[38]Maxwell, 514 (Dawson and McHugh JJ).
The only exception to the absolute independence of prosecutorial discretion is where a discretion to prosecute a particular charge is exercised for an improper purpose.[39] In that case, a court may grant a stay to prevent the abuse of its processes. The court may also stay a proceeding if, for some other reason, the continued prosecution of a charge ‘would be so unfairly and unjustifiably oppressive as to constitute an abuse of process’.[40]
[39]Elias, [35].
[40]Baker v Director of Public Prosecutions [2017] VSCA 58, [40]–[46].
Given that s 21 and s 23 of the OHS Act create overlapping offences, it is difficult to see how a decision to charge an employer under s 23 rather than s 21 might be characterised as an abuse of process. There is in my view nothing inherently improper or oppressive in an informant preferring one charge over the other, in circumstances where both provisions apply to the conduct charged.
The Board argues that this decision deprived it of the ‘defence’ of lack of control that would have been available to a charge under s 21. As discussed, control is an element of an offence against s 21(1), as extended by s 21(3); it is not a defence. By preferring a charge under s 23(1), the informant assumes the burden of proving all of the elements of that offence. The choice is one that Mr Muscat could properly make here.
Although the Magistrate may have considered that the second charge should have been laid under s 21 rather than s 23, that was an irrelevant consideration for his Honour in determining the charge.
Should the case be remitted to the Magistrates’ Court?
As I have found that the Magistrates’ Court misconstrued s 23 of the OHS Act, the appeal must be allowed. Under s 272(2) of the Criminal Procedure Act, I may make any order that I think appropriate, including an order remitting the case for rehearing to the Magistrates’ Court with or without any direction in law.
Mr Muscat seeks orders setting aside the dismissal of the second charge, and remitting it for rehearing by a differently constituted Magistrates’ Court. The Board submits that it would be futile to remit the second charge for rehearing, because it would inevitably fail given the findings that were made by the Magistrate on the first charge.
In this case I consider that the appropriate order is to set aside the order dismissing the second charge, and to remit the proceeding to the same Magistrate. Mr Muscat did not identify any aspect of the hearing or the Reasons that provided a ‘good reason’ for not remitting the proceeding to Magistrate Sargent.[41] Having heard the evidence, his Honour is best placed to determine whether the second charge is made out.
[41]Vegco Pty Ltd v Gibbons [2008] VSC 363, [33], citing Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, 42–3; Kapoor v Monash University (2001) 4 VR 483, 498–9 [51]; Davidson v Fish [2008] VSC 32, [14]–[21]; Able Demolitions & Excavations Pty Ltd v Yarra Ranges Shire Council [2008] VSC 294, [49].
I will make the following orders:
(a) The appeal is allowed.
(b) The order of the Magistrate M Sargent in the Magistrates’ Court of Victoria at Ringwood on 4 December 2017 in Case No. G12450136, dismissing charge 2, is set aside.
(c) The proceeding is remitted to the Magistrates’ Court of Victoria constituted by Magistrate M Sargent for further hearing and determination according to law.
I will hear the parties as to the costs of the appeal.
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