S & Ad Basheer Nominees Pty Ltd v Boland - [2018] SASCFC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Case Stated)
Question of Law Reserved 3332 OF 2015
S & AD BASHEER NOMINEES PTY LTD v BOLAND
[2018] SASCFC 127
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
5 December 2018
INDUSTRIAL LAW - WORK HEALTH AND SAFETY - GENERALLY - PROCEDURE - AUTHORITY TO PROSECUTE
CRIMINAL LAW - PROCEDURE - PROSECUTION
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION
The South Australian Employment Court referred the following questions of law to this Court:
1. Do the words “the Minister” found in the definition of “Department” in section 4 of the WHS Act mean:
a. the “Minister” as defined by section 4 of the Acts Interpretation Act 1915 (SA) such that the relevant Minister for the purposes of the definition of “Department” was, at the time the Information was laid, the Minister for Industrial Relations; or
b. the “Minister” as designated pursuant to section 28 of the PS Act such that the relevant Minister for the purposes of the definition of “Department” was, at the time the Information was laid, the Attorney-General?
2. If at the time the Information was laid, the Minister for the purposes of the definition of “Department” was the Attorney-General, but the administration of the WHS Act was committed to the Minister for Industrial Relations under the AA Act, was the Information valid or invalid?
3. Was the Regulator under a duty to inform the Minister before laying the Information against the appellant that the Regulator intended to lay the Information against the appellant?
4. If the answer to question 3 is yes, and the Regulator did not inform the Minister before laying the Information against the appellant that the Regulator intended to lay the Information against the appellant, then is the Information valid or invalid?
Held (by Stanley J, Kourakis CJ and Blue J agreeing):
The answers to the questions referred by the Full Bench of the South Australian Employment Court are as follows:
1. Unnecessary to answer.
2. Unnecessary to answer.
3. No.
4. Does not arise.
South Australian Employment Tribunal Act 2014 (SA) s 22(2)(b); Work, Health and Safety Act 2012 (SA) s 3, s 4, s 32, s 152, s 153, s 160, s 230, s 231; Public Sector Act 2009 (SA) s 28; Administrative Arrangements Act 1994 (SA) s 5; Acts Interpretation Act 1915 (SA) s 4, referred to.
Herscu v The Queen (1991) 173 CLR 276, considered.

Question of Law Reserved 3332 OF 2015
S & AD BASHEER NOMINEES PTY LTD v BOLAND
[2018] SASCFC 127
Full Court: Kourakis CJ, Blue and Stanley JJ

KOURAKIS CJ: I agree with the answers proposed by Stanley J and with his reasons.
I make the following additional observations.
First, ss 28 and 31 of the Public Sector Act 2009 (SA) (PSA) reflect the traditional constitutional relationship between a Minister and his or her department through the chief executive. The particular ways in which the Minister and the chief executive discharge their respective responsibilities is not statutorily prescribed. That is properly left to the conventions governing Ministerial responsibility to Parliament for the operations of his or her department.
The purpose of s 152(b) of the Work Health and Safety Act 2012 (SA) (the Act) is to confer, on the Executive Director of that part of the Department which is involved directly in the enforcement and administration of the Act (the Regulator), particular statutory functions including a direct reporting relationship to the Minister. Those statutory functions and the reporting relationship cannot be denied or otherwise obstructed by the Minister or the chief executive of the Department.
The reason for imposing particular functions and a direct reporting relationship on the Regulator may be the importance which Parliament attached to occupational safety, or a recognition of the specialist nature of the enforcement and administration of the Act, or both.
Whatever the reason, there is no basis to imply into the statutory duty to report to the Minister prescriptive obligations which do not attach to chief executives pursuant to s 31 of the PSA. Of course, as I have already observed, the Minister cannot direct the Regulator not to report at all, or so obstruct his or her communications as to deny the Regulator the capacity to perform his or her statutory functions. Such extreme measures aside, the content and timing of the reporting function is a matter for the Minister and the Regulator to determine, and is again a matter for which the Minister is responsible to Parliament.
Faced with the absence of any textual foundation from which to imply any particular prescription for the reporting function, the appellant fastened on the serious adverse consequence prosecutions often have on persons charged. He contended that those consequences justified implications of a term that the Minister must be informed before a prosecution is commenced. However, as Stanley J observes, the modern trend is against Ministerial involvement in prosecutorial discretions. There are good reasons for that approach. Ministerial involvement may bring collateral influence to bear on the exercise of the prosecutorial discretion to the detriment of the proposed defendant. Some Ministers may reasonably require notice in advance of all prosecutions or, at least, of those of a particular kind. Others may again, quite reasonably, seek a weekly, monthly or annual report of prosecutions commenced, pending or finalised. There is no basis on which this Court could, by implication, mandate one of many reasonable reporting regimes which a Minister and the Regulator may establish.
In the course of argument, the appellant further limited the implication for which it contended to an obligation to report in advance on those proposed prosecutions which may be controversial. An obligation of such uncertain operation could not possibly be implied. The basis for that implication was said to be to protect the Minister by forewarning him or her about matters which may be raised in Parliament. However, that submission conflates questions of Ministerial responsibility, which are not justiciable, with the administrative structures of public service departments which are the subject matter of ss 28 and 31 of the PSA and s 152 of the Act.
BLUE J: I agree with Stanley J.
STANLEY J:
Introduction
The Full Bench of the South Australian Employment Court referred certain questions of law to the Full Court pursuant to s 22(2)(b) of the South Australian Employment Tribunal Act 2014 (SA).
Background
The background to the referral is that on 12 August 2013, S & A D Basheer Nominees Pty Ltd (the appellant) operated the Strathmore Hotel on North Terrace, Adelaide. On that day Rhys Barry, who was employed by Murray Pest and Weed Control (SA) Pty Ltd as a pest management technician, attended at the Strathmore Hotel to perform pest eradication and control maintenance services. During the course of that work he was injured when he fell through the open trapdoor of a cellar in the gaming room of the hotel.
At all material times, Marie Boland (the respondent) was the Acting Executive Director of SafeWork SA. On 5 May 2015 she instituted a prosecution against the appellant by laying an information and summons alleging a contravention of s 32 of the Work, Health and Safety Act 2012 (SA) (the Act) in respect of the incident resulting in Mr Barry’s injuries. She did so in her capacity as the regulator under the Act.
Before an Industrial Magistrate, the appellant submitted that the information and summons was invalid because s 152(a) of the Act conditioned the institution of a prosecution by the regulator upon the regulator advising the Minister of her intention to prosecute a person under the Act before the laying of an information.
The appellant submitted to the magistrate that, for the purposes of s 152(a), the relevant Minister was the Minister for Industrial Relations rather than the Attorney-General. The appellant contended that, during the relevant period, the regulator was under the administrative responsibility of the Attorney‑General. As a result, she was incapable of performing an inherent part of her function, that is, being able to advise the correct Minister, namely, the Minister for Industrial Relations, who had ministerial oversight of the Act. The appellant submitted that, in consequence, any powers exercised by the regulator during the relevant period, including commencing prosecutions, were invalid.
The basis for this submission is that at 5 May 2015, pursuant to a proclamation made under s 28 of the Public Sector Act 2009 (SA), the Minister with responsibility for the Attorney-General’s Department was the Attorney‑General. At the same time, pursuant to a proclamation made under s 5 of the Administrative Arrangements Act 1994 (SA), the Act was committed to the Minister for Industrial Relations. From 1 July 2014, the employees employed in the operational unit known as SafeWork SA were transferred to the Attorney‑General’s Department. SafeWork SA was directly involved in the administration and enforcement of the Act.
The magistrate dismissed the challenge to the validity of the prosecution. The appellant appealed against the magistrate’s ruling. The Full Bench of the South Australian Employment Court decided to refer questions of law to this Court.
The questions of law
The South Australian Employment Court referred the following questions of law to this Court:
1.Do the words “the Minister” found in the definition of “Department” in section 4 of the WHS Act mean:
a. the “Minister” as defined by section 4 of the Acts Interpretation Act 1915 (SA) such that the relevant Minister for the purposes of the definition of “Department” was, at the time the Information was laid, the Minister for Industrial Relations; or
b. the “Minister” as designated pursuant to section 28 of the PS Act such that the relevant Minister for the purposes of the definition of “Department” was, at the time the Information was laid, the Attorney-General?
2.If at the time the Information was laid, the Minister for the purposes of the definition of “Department” was the Attorney-General, but the administration of the WHS Act was committed to the Minister for Industrial Relations under the AA Act, was the Information valid or invalid?
3.Was the Regulator under a duty to inform the Minister before laying the Information against the appellant that the Regulator intended to lay the Information against the appellant?
4.If the answer to question 3 is yes, and the Regulator did not inform the Minister before laying the Information against the appellant that the Regulator intended to lay the Information against the appellant, then is the Information valid or invalid?
On the hearing of the referral by this Court, counsel for the appellant, Mr Tokley SC, accepted that if the answer to question 3 is in the negative it is unnecessary to answer the other questions. Accordingly, it is convenient to address first question 3.
Question 3
The starting point for consideration of question 3 is the terms of s 152(a) of the Act. The appellant contends that, pursuant to s 152(a), the regulator had a duty to inform the Minister that she intended to lay an information against the appellant before doing so and that her failure to do so renders the information invalid. The respondent takes issue with this submission.
Section 152 provides:
The regulator has the following functions:
(a) to advise and make recommendations to the Minister and report on the operation and effectiveness of this Act;
(b) to monitor and enforce compliance with this Act;
(c) to provide advice and information on work health and safety to duty holders under this Act and to the community;
(d) to collect, analyse and publish statistics relating to work health and safety;
(e) to foster a co-operative, consultative relationship between duty holders and the persons to whom they owe duties and their representatives in relation to work health and safety matters;
(f) to promote and support education and training on matters relating to work health and safety;
(g) to engage in, promote and co-ordinate the sharing of information to achieve the object of this Act, including the sharing of information with a corresponding regulator;
(h) to conduct and defend proceedings under this Act before a court or tribunal;
(i) any other function conferred on the regulator by this or any other Act.
Section 4 of the Act defines “regulator” to mean the Executive Director. “Executive Director” is defined to mean the person for the time being holding, or acting in, the position of Executive Director of that part of the Department that is directly involved in the administration and enforcement of the Act. “Department” is defined to mean the administrative unit of the Public Service that is, under the Minister, responsible for the administration of the Act. Minister is not defined in the Act. In answering question 3, it is unnecessary to decide who the relevant Minister is for the purpose of the operation of s 152(a).
The appellant submits that s 152 imposes various functions on the regulator. The appellant contends that the imposition of a function on a statutory office holder, such as the regulator, amounts to the imposition of a duty on the part of that office holder to perform that function.[1]
[1] Herscu v The Queen (1991) 173 CLR 276 at 281-282, 284.
The appellant refers to the obligation imposed upon the regulator by s 152(a) being to advise the Minister on the operation of the Act. The appellant submits that the duty to advise the Minister on the operation of the Act extends to, or encompasses, advising the Minister that the regulator intends to prosecute a matter before instituting proceedings to do so. The appellant submits that the legislature, in imposing such a duty, must have intended that a failure to observe or fulfil the duty would result in the invalidity of the consequential act, namely, in this case, the institution of the prosecution.
I do not accept this submission. I can accept that s 152(a) imposes a duty upon the regulator. I do not accept that the duty imposed upon the regulator is to advise the Minister of the regulator’s intention to institute a prosecution under the Act before doing so.
I accept that the function imposed on the regulator by s 152(a) includes an obligation to advise the Minister on the operation of the Act. That obligation takes its colour and content from the text, context and purpose of the provision. The obligation is general, rather than specific. Section 152(a) does not impose any express obligation on the regulator to advise the Minister of an intention to bring a prosecution. There is no foundation for implying such an obligation. The obligation to advise the Minister on the operation of the Act is an obligation to advise the Minister as to how the Act is operating in a broad and general way. That is part and parcel of the related obligation on the regulator to advise the Minister on the effectiveness of the Act and to make recommendations as to how the operation and effectiveness of the Act might be improved. The obligation does not require the regulator to advise the Minister of the fact of every prosecution authorised by the regulator, let alone require the regulator to so advise the Minister before the prosecution is commenced. The purpose of s 152(a) is to impose upon the regulator an obligation to advise the Minister generally as to the operation and effectiveness of the Act in meeting its statutory objects and to make recommendations to the Minister where the regulator considers that amendment to the Act is required to improve its operation and effectiveness. There is no need to imply any wider purpose to the provision for it to operate effectively within the context of the Act read as a whole.
The difficulty with the appellant’s construction is that it requires the implication, not only of an obligation to advise before the institution of a prosecution, but also of the content of the obligation to advise. How is the extent of that obligation to be identified? Does the obligation extend to advising the Minister of the identity of the defendant, or the circumstances of the alleged offence, or the date that the offence is alleged to have occurred, or the persons allegedly involved in the commission of the offence?
In addition, if an obligation of the kind for which the appellant contends, founded in the text imposing upon the regulator an obligation to advise the Minister on the operation of the Act, were to be implied, why should the obligation imposed be confined to an obligation to advise of the intention to institute a prosecution? Why should it not extend to an obligation to advise the Minister of circumstances where the regulator intended to defend proceedings under the Act and the basis of such defence? Why should it not extend to the prospects of success in prosecuting or defending proceedings under the Act? Why should it not extend to the progress of such proceedings? Why should it not extend to any of the other duties imposed upon the regulator pursuant to s 152, such as the nature of the advice and information on work, health and safety being provided by the regulator to duty holders and the community;[2] the statistics relating to work, health and safety being collected and analysed by the regulator;[3] the steps the regulator is taking to foster a cooperative consultative relationship between duty holders and the persons to whom they owe duties and their representatives in relation to work, health and safety matters;[4] the steps the regulator is taking to promote education and training in relation to work, health and safety;[5] the steps the regulator is taking in sharing information to achieve the object of the Act, including sharing information with a corresponding regulator;[6] and other functions conferred on the regulator by the Act, such as commencing an investigation and the progress of such investigation?[7]
[2]    Section 152(c).
[3]    Section 152(d).
[4]    Section 152(e).
[5]    Section 152(f).
[6]    Section 152(g).
[7]    Section 152(i), s 153(2), s 155 and s 160(e).
The Court would strain against adopting the construction contended for by the appellant if the consequence was that s 152(a) imposed upon the regulator an obligation to advise the Minister of the quotidian operations of the Act. Yet the appellant’s submission carries more than a hint of this conclusion. The appellant submits the regulator is under a duty to advise the Minister before a prosecution is commenced. This is said to form part of the duty to advise the Minister on the operation of the Act, but on one view the Act is not operating before a prosecution commences. For these purposes it only commences operating when the prosecution is initiated. The appellant’s answer to this problem is to contend that the operation of the Act is a wide concept.
The wider the concept of the operation of the Act, the more difficult it becomes to imply an obligation on the regulator. To the extent there is a duty imposed upon the regulator to advise the Minister on the operation of the Act, this is not a duty with a fixed content. I accept that the regulator is empowered to advise the Minister about prosecutions but is not obliged to do so. That would entail an evaluation on the part of the regulator as to the nature and extent of the advice proffered. I accept that the Minister could seek such advice from the regulator, in which case the regulator would be under an obligation to provide such information. In those circumstances that obligation would arise from the accountability of public servants to their Ministers and the Act as a whole, not from the provisions of s 152(a).

I do not accept the appellant’s submission that the obligation for which it contends should be implied by reason of s 3(1)(f) of the Act, which enshrines as one of its objects to secure the health and safety of workers and workplaces by ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under the Act. In my view, that object is achieved by the exercise of the powers expressly conferred for the scrutiny and review of the actions of persons exercising powers and performing functions under the Act, for example, pursuant to Part 12 of the Act.
Underpinning the appellant’s submission is the proposition, not only that the Minister should not be surprised by learning of the fact of a prosecution after it has been commenced, but that the concomitant of the obligation to advise the Minister before instituting a prosecution is that the Minister is conferred with the power to direct the regulator in relation to the institution of a prosecution under the Act. This submission sits uncomfortably with the provisions of s 152(h), s 153(1) and s 230.
Section 152(h) confers upon the regulator the function of conducting and defending proceedings under the Act. Section 153(1) confers upon the regulator the power to do all things necessary or convenient to be done for or in connection with the performance of its functions. Section 230(1) provides that, subject to s 230(9), proceedings for an offence against the Act may only be brought by the regulator or an inspector with the written authorisation of the regulator. Section 230(9) provides that nothing in that section affects the ability of the Director of Public Prosecutions to bring proceedings for an offence against the Act. It is telling that the Act does not impose any obligation on the Director to advise the Minister before the Director brings proceedings for an offence against the Act. If there were a legislative intention to condition the institution of a prosecution by the regulator upon the Minister being advised in advance of the regulator’s intention in that regard, one would expect to find that legislative intention expressly provided in s 230.
These provisions strongly suggest the independence of the regulator in exercising the function of bringing a prosecution for the enforcement of the Act. That is further reinforced by consideration of the provisions of s 231 of the Act. Section 231 provides for a procedure to be followed by a person who considers a prosecution should be brought in relation to the occurrence of an act, matter or thing where a prosecution has not been brought after six months but not later than 12 months following that occurrence. Where the regulator decides that a prosecution will not be brought, the regulator must advise the person that he or she may ask the regulator to refer the matter to the Director of Public Prosecutions for consideration and the Director must consider the matter and advise the regulator in writing as to whether the Director considers a prosecution should be brought. If the regulator declines to follow the advice of the Director to bring proceedings, the regulator must give written reasons for the decision. The regime established by s 231, while providing for a degree of oversight by the Director in the exercise by the regulator of the prosecutorial discretion, nonetheless leaves the exercise of the discretion to the regulator solely. This serves to underline the statutory independence of the regulator in enforcing the Act.
Further, I do not consider that the nature of the prosecutorial discretion to institute proceedings for the enforcement of the Act necessarily implies an obligation to advise the Minister in advance of the regulator’s intention to do so. The implication of such an obligation would be contrary to the well-recognised tendency of Parliaments over many decades to distance the exercise of the prosecutorial discretion from the purview of a Minister of the Crown. Finally, it is not necessary for the operation of the Act to imply the obligation for which the appellant contends.
Accordingly, the respondent was not under a duty to inform the Minister before laying the information against the appellant that the respondent intended to lay the information against the appellant.
For these reasons, I would answer question 3 in the negative. Accordingly, it is unnecessary to answer the other questions referred by the Full Bench.
Conclusion
I would answer the questions referred by the Full Bench of the South Australian Employment Court as follows:
1.Unnecessary to answer.
2.Unnecessary to answer.
3.No.
4.Does not arise.