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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] SASCFC 127
Decision Date: 5 December 2018

CaseChat Overview and Summary

The Full Court of South Australia considered questions of law referred by the Full Bench of the South Australian Employment Court concerning a prosecution initiated by Marie Boland, the Acting Executive Director of SafeWork SA, against S & Ad Basheer Nominees Pty Ltd. The prosecution alleged a contravention of the Work, Health and Safety Act 2012 (SA) following an incident where an employee of a pest control company was injured while working at the appellant's hotel. The appellant challenged the validity of the prosecution, arguing that the regulator had failed to comply with a statutory prerequisite for commencing proceedings.

The central legal issue before the court was whether the prosecution was validly instituted, specifically in light of section 152(a) of the Work, Health and Safety Act 2012 (SA). This section requires the regulator to advise the relevant Minister of their intention to prosecute before laying an information. The appellant contended that the "relevant Minister" was the Minister for Industrial Relations, to whom the Act was administratively committed, and that the regulator, being under the administrative responsibility of the Attorney-General at the time, was unable to advise the correct Minister. This, the appellant argued, rendered any powers exercised by the regulator, including the commencement of prosecutions, invalid.

The court determined that the prosecution was valid. It reasoned that the administrative arrangements and departmental responsibilities did not impede the regulator's ability to fulfil the requirement of section 152(a). The court concluded that the question of whether the regulator could advise the Minister for Industrial Relations was unnecessary to answer, implying that the appellant's premise regarding the inability to advise the correct Minister was not determinative of the prosecution's validity. Consequently, the court answered the third question referred by the Full Bench in the negative, rendering the other questions moot.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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