Woods v Newman, Chief Inspector of Coal Mines

The applicant, Woods, sought a declaration that an Industry Safety and Health Representative (ISHR) has the right to attend and participate in a compulsory examination under the Coal Mines Act 1994 (NSW) when a serious accident occurs. The Chief Inspector of Coal Mines, Newman, opposed the application. The Federal Circuit and Family Court of Australia was tasked with determining whether the ISHR’s function of participating in investigations into serious accidents implies a power or right to attend and ask questions at a compulsory examination by an inspector or officer.

The court needed to decide if the ISHR’s role in investigations includes the authority to participate in compulsory examinations as described in section 157 of the Act. Woods argued that the ISHR’s ability to make meaningful recommendations to prosecute under section 256 of the Act required them to be empowered to participate in the compulsory examination process. The court rejected this, noting that an ISHR’s recommendation could be informed by various means, including investigations and information obtained from inspectors. The court concluded that the ISHR’s function of participating in investigations does not necessarily imply the power to attend and ask questions in the compulsory examination process. The court further found that the specific powers conferred to ISHRs under section 119 of the Act, such as the power to examine documents, already enable them to fulfil their investigative participation role without the need to attend compulsory examinations.

The court held that the right for an ISHR to attend, ask questions, and participate in a compulsory examination under section 157 of the Act was not necessary for the purposes of the Act or the specific function of participating in investigations. Such a right, if implied, could potentially impede or prejudice the examination process. The court deemed it unnecessary to confer such a power on ISHRs, especially given the potential for conflict or delay in the compulsory examination of witnesses. Therefore, the application was dismissed, and Woods was ordered to pay the respondent’s costs of the application.