Consideration
29The issue for determination in this matter is whether the Commission has jurisdiction to hear and determine the application.
30In these proceedings the applicant relies upon s 229(1)(b) of the WHS Act as the basis for his application to the Commission to conduct an external review of the decision of Mr Jones, who undertook an internal review of the decision made by Inspector Webb on 13 July 2012.
31Part 12, Div 1 and Div 2 of the WHS Act make provision for internal review of decisions. In particular, s 223(1), which is found in Pt 12 permits the regulator to review a decision under s 72(6) of the WHS Act. Section 72(1)(c) and s 72(2) make provision for the attendance of a HSR at a course of training in work health and safety. The course of training in work health and safety must be as provided for in s 72(1)(b) of the WHS Act "a course that the health and safety representative is entitled under the regulations to attend".
32Both s 72(5) and s 72(6) make provision for an inspector to be appointed to decide any disagreement between the person conducting the business (the second respondent) and the health and safety representative.
33It is the first respondent's submission that at the time of the decision of Inspector Webb on 13 July 2012, the applicant had no entitlement under the regulations to attend a course of training in work health and safety. The basis of this submission is found in the transitional provisions in the WHS Act.
34Pt 4 of Sch 18B, of the Regulation, in particular cl 12 and cl 13, provides that these provisions have the effect of modifying the training entitlements of certain HSRs that would otherwise apply. The applicant is part of the class of HSRs affected by the transitional provisions. I have earlier set out these provisions.
35In accordance with the cl 12(1) of Pt 4 of Sch 18B of the Regulation, as the applicant was elected as a member of the OHS Committee for the purposes of the Occupational Health and Safety Act 2000 ("the OHS Act") on 1 February 2011, he is deemed to be a HSR under this Part.
36The first respondent as the regulator, approved a course of gap training for deemed HSRs. This course was conducted by Courtenell. The applicant undertook this course on 25 June 2012. As a result of undertaking this course, the applicant pursuant to cl 13(3) of Sch 18B is deemed to have completed the training referred to in s 85(6) and s 90(4) of the WHS Act. The training referred to in these sections is relevantly:
85 Health and safety representative may direct that unsafe work cease
...
(6) A health and safety representative cannot give a direction under this section unless the representative has:
(a) completed initial training prescribed by the regulations referred to in section 72 (1) (b), or
(b) previously completed that training when acting as a health and safety representative for another work group, or
(c) completed training equivalent to that training under a corresponding WHS law.
90 Provisional improvement notices
...
(4) A health and safety representative cannot issue a provisional improvement notice unless the representative has:
(a) completed initial training prescribed by the regulations referred to in section 72 (1) (b), or
(b) previously completed that training when acting as a health and safety representative for another work group, or
(c) completed training equivalent to that training under a corresponding WHS law.
37The applicant is therefore deemed to have completed the initial training course prescribed by cl 21(1)(a) of the Regulation (an internal course of training for five days). The only other training referred to in cl 21 is one day refresher training each year: cl 21(1)(b). The entitlement to refresher training commences one year after the completion of the training course.
38The applicant in his original application sought to attend a five day training course. The applicant subsequently filed an amended application seeking to attend a one day bridging course. Subsequently in written submissions, the applicant contended that he had an entitlement to undergo refresher training, although there has never been a dispute between the applicant and the second respondent in respect of refresher training. A case has not been pleaded in respect of undertaking refresher training.
39Having undertaken approved gap training provided by Courtenell, the applicant was deemed to have undertaken initial training. As this gap training occurred on 25 June 2012, he is not entitled to attend refresher training until 24 June 2013.
40Therefore, it must follow, that as at the date of the decision of Inspector Webb on 13 July 2012, the applicant had exhausted all his entitlements to attend a course of training in work health and safety.
41As the applicant had no entitlement to attend a course of training in work health and safety, the statutory conditions for the purported decision of Inspector Webb did not exist. It followed, so it was submitted by the first respondent that such decision therefore was made in the absence of jurisdiction and constituted a jurisdictional error.
42In Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531, the High Court stated:
In Craig v South Australia, this Court recognised the difficulty of distinguishing between jurisdiction and non-jurisdictional errors, but maintained the distinction. As was pointed out in Re Refugee Review Tribunal; Ex parte Aala:
"The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not."
43In Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 at [51] ; (2002) 209 CLR 597; (2002) 187 ALR 117; (2002) 76 ALJR 598, Gaudron and Gummow JJ observed:
There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. ...
44Their Honours' observations were confirmed in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 195 ALR 24; (2003) 77 ALJR 454 and in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [29]; (2004) 207 ALR 12; (2004) 78 ALJR 992:
45In Plaintiff S157/2002 v Commonwealth, Gaudron, McHugh, Gummow, Kirby and Hayne JJ said at [76]:
"[o]nce it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression 'decision[s] ... made under this Act' must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is 'regarded, in law, as no decision at all'. Thus, if there has been jurisdictional error because, for example, of a failure to discharge 'imperative duties' or to observe 'inviolable limitations or restraints', the decision in question cannot properly be described in the terms used in s 474(2) as 'a decision ... made under [the] Act' and is, thus, not a 'privative clause decision' as defined in s 474(2) and (3) of the Act."
46The decision of Inspector Webb, where the applicant had no further entitlements was therefore no decision at all. There was consequently no decision for the internal reviewer to review Inspector Webb's decision. The purported decision of the internal reviewer was therefore also affected by jurisdictional error and constituted no decision at all.
47The power granted to this Commission under s 229 of the WHS Act is to conduct a merits review of the decision of the internal reviewer made under s 226.
48The applicant sought to contend that the refusal by the second respondent to permit the applicant to undertake a refresher course resulted in there being jurisdiction to deal with the second respondent's failure to provide refresher training. The applicant relied on Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584. In my view, reliance on this case is misplaced. In Abebe v Commonwealth, the High Court of Australia recognised that jurisdiction "is the authority to decide". However, the applicant has at no stage requested refresher training, nor has the second respondent refused to agree to such training. It follows that there was nothing to decide in respect of refresher training.
49If and when the second respondent declines a request by the applicant to undertake refresher training, jurisdiction would arise pursuant to s 229 of the WHS Act for this Commission to conduct a merit review should such an application be brought.
50The power granted to the Commission under s 229(4) of the WHS Act is to conduct a merit review. That is, to "confirm, vary or revoke" the decision being reviewed so as to determine what is the correct or preferable decision. Accordingly, the Commission "stands in the shoes" of the decision-maker and may only exercise those powers that were available to that decision-maker.
51The statutory pre-conditions for the decisions of Inspector Webb and subsequently, the internal reviewer, Mr Jones, did not exist. Such conditions will not exist until 24 June 2013.
52Accordingly, there were no power available to be exercised by Inspector Webb or the internal reviewer.
53It follows therefore, that the Commission is without jurisdiction to deal with this application. The application should therefore be dismissed.