Commissioner of Police v Seiffert & Ors [2020] QDC 50

CRIMINAL LAW - appeal against ruling that there was no case to answer - where the respondents asserted a right to be at the premises under Work Health and Safety Act 2011 (Qld) - where it was held the respondents had an honest claim of right to enter the premises pursuant to s 22(2) Criminal Code (Qld) - whether the magistrate erred in ruling that there was no case to answer - whether the magistrate erred by considering the respondents honest claim of right to enter the premises - whether the respondents had an honest claim of right to remain on the premises

District Court of Queensland|2020-04-14|Before: Judge AJ

CRIMINAL LAW - appeal against ruling that there was no case to answer - where the respondents were union officials - where the respondents entered a workplace as authorised industrial officers to inquire into suspected contraventions under ss 117 and 118 Work Health and Safety Act 2011 (Qld) - where the respondents remained on the premises after being asked to leave - where the respondents were charged with trespass contrary to s 11(2) Summary Offences Act 2005 (Qld) - where it was held the respondents were authorised to remain at the premises pursuant to s 11(3) Summary Offences Act 2005 (Qld) - whether the magistrate erred in ruling that there was no case to answer - whether the respondents were entitled to remain at the premises

CRIMINAL LAW - appeal against ruling that there was no case to answer - where it was held police officers breached s 634 Police Powers and Responsibilities Act 2000 (Qld) - where it was held police officers lacked knowledge of relevant laws and could not reasonably believe the respondents were not entitled to the benefit of s 11(3) Summary Offences Act 2005 (Qld) - where it was held police officers failed to assist an industrial relations inspector - whether the magistrate erred in ruling that there was no case to answer - whether it must proved beyond reasonable doubt that a police officer considers an explanation not to be reasonable - whether misapprehension as to the law affects whether a police officer can consider an explanation not to be reasonable - whether the respondents were given a reasonable opportunity to explain their presence and the explanation was considered to be reasonable - whether the police officers failed to assist public officials

COSTS - appeal against the magistrate exercising the discretion to award costs in an amount higher than scale allowed in accordance with s 158B(2) Justices Act 1886 (Qld) - where it was held that a higher award of costs was justified by the special difficulty, complexity or importance of the case - whether the magistrate erred in concluding that an amount for costs above the scale in the Justices Regulation 2014 (Qld) was just and reasonable

Justices Regulation 2014 (Qld), s 19, schedule 2

Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; (2017) 251 FCR 470, considered

Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513, cited

Benning v Wong (1969) 122 CLR 249, cited

Bismark v Queensland Police Service [2014] QDC 152, cited

Blackwood v Hinder [2017] QDC 239, cited

Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, cited

Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acconia Infrastructure Australia Pty Ltd & Ors [2017] NSWIR Comm 1029, cited

Cullinan v McCahon [2014] QDC 120, cited

Darlaston v Parker [2010] FCA 771; (2010) 189 FCR 1, cited

Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, cited

Fawkes v Schadwell, ex-parte Schadwell [1966] Qd R 20, cited

Flori v Winter & Ors [2019] QCA 281, cited

Frost v Commissioner of Police [2014] QDC 294, followed

Goli v Blue 11 Pty Ltd [2018] QDC 108, cited

Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1, considered

May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654, cited

McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612, cited

Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562, considered

Molina v Zaknich [2000] WASCA 390; (2000) 117 A Crim R 346, cited

Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573, cited

Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, considered

Preston v Parker [2010] QDC 264, followed

Ramsay and Anor v Menso and Anor [2018] FCAFC 55; (2018) 260 FCR 506, cited

Ramsay v Sunbuild Pty Ltd [2014] FCA 54; (2014) 221 FCR 315, cited

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, cited

Rowe v Kemper [2008] QCA 175; [2009] 1 Qd R 247, cited

R v Bagley [2014] QCA 271, cited

R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220, cited

The Queen v A2 [2019] HCA 35; (2019) 93 ALJR 1106, cited

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, cited

Strbak v The Queen [2020] HCA 10, cited

Veivers v Roberts; ex-parte Veivers [1980] Qd R 226, considered

Queensland Police Service legal unit for the appellant in each matter

Hall Payne Lawyers for the respondent in each matter

[1] The respondents were each charged with trespass contrary to s 11(2) Summary Offences Act 2005 (Qld). Although the charges related to the same circumstances, the terms of the charges contained slight differences and a number of errors. The charges are set out exactly as they appear in the bench charge sheets. Mr Seiffert was charged that: on 17 December 2018 at Seventeen Mile Rocks he unlawfully remained in in (sic) a placed (sic) used as a yard for a business purpose situated at 73 Counihan Road, Seventeen Mile Rocks. Mr Davidson was charged that: on 17 December 2018 at Seventeen Mile Rocks he unlawfully remained in a place used as a yard for a business purpose situated at 73 Counihan Road, Seventeen Mile Rocks. Mr Cundy was charged that: on 17 December 2018 at Seventeen Mile Rocks he unlawfully remained in a place used for a business business (sic) purpose situated at 73 Counihan Road, Seventeen Mile Rocks. Mr Moloney was charged that: on 17 December 2018 at Seventeen Mile Rocks he unlawfully remained in a place used as a yard for a business purpose situated at 73 Counihan Road, Seventeen Mile Rocks.

[2] The premises at 73 Counihan Road, Seventeen Mile Rocks were occupied by ENCO Precast. The respondents were officials of a registered trade union and were permit holders under the Fair Work Act 2009 (Cth) and the Work Health and Safety Act 2011 (Qld) ("WHS Act"). At about 7.40 am on 17 December 2018, the respondents attended the premises of ENCO Precast and provided entry notices for the purposes of conducting investigations under the WHS Act. The general manager of ENCO Precast, Steven James, asked the respondents to leave the premises. The police were contacted and attended the premises. At about 9am inspectors from the Office of Industrial Relations attended the premises at the request of the respondents in order to attempt to resolve the issues. However, Mr James told the inspectors to leave the premises. At about 11.15am the respondents were arrested. The facts outlined by the prosecutor at the commencement of the trial were not in dispute.[1]

[3] The matters were heard together in the Magistrates Court at Brisbane on 29 April 2019 and 15 May 2019. At the conclusion of the prosecution case, Mr Ryan of counsel who appeared for the respondents made a submission that they had no case to answer. Mr Ryan provided written submissions. The matter was adjourned to 24 May 2019 to enable the police prosecutor to respond to Mr Ryan's submissions.

[4] At the conclusion of submissions on 24 May 2019, the magistrate indicated that she had prepared a draft decision, and proposed to deliver a ruling later in the day. However, the magistrate stated that the no case submission would succeed.[2]

[5] Mr Ryan on behalf of the respondents then submitted that costs should be awarded above the scale in schedule 2 Justices Regulation 2014 (Qld). It was submitted that a higher award of costs was justified by the special difficulty, complexity or importance of the case.[3] The costs incurred by the respondents were set out in an affidavit.[4] Mr Ryan sought an award of costs of about $110,000.[5]

[6] The magistrate stated that a costs order would be made and that although the amount of $110,000 would be discounted, the figure would be "much closer up to the six figures". Her Honour indicated that a "significant costs order should be made". The matter was then adjourned to 4 June 2019 in order to give the parties an opportunity to agree on costs.

[7] The quantum of costs was agreed in each case at $21,250 and on 4 June 2019 orders were made accordingly.

[8] By notices of appeal filed 24 June 2019, the Commissioner of Police has appealed against the orders made by the magistrate on identical grounds:

1. The magistrate erred in finding that there was no case to answer against each defendant.

2. The magistrate erred in the exercise of her discretion to award costs in an amount higher than scale allowed in accordance with s 158B(2) of the Justices Act 1886 (Qld).

[9] An appeal to the District Court pursuant to s 222 Justices Act 1886 (Qld) is by way of rehearing on the evidence before the Magistrates Court unless leave is given to adduce fresh, additional or substituted evidence.

[10] An appeal by way of rehearing involves the appellate court conducting a "real review" of the evidence given at the trial. In Robinson Helicopter Company Inc v McDermott[6] the High Court said:

"A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judges reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings."

[11] In McDonald v Queensland Police Service[7] Bowskill J said that:

"It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate's reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate's view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error."

[12] The main facts were not in dispute. At the time of entry onto the premises the respondents each presented a notice of entry in accordance with s 119 WHS Act. Shortly after entering the premises the respondents were asked by Mr James to leave. The respondents referred Mr James to their notices of entry which outlined the rights they were seeking to exercise in accordance with s 118 WHS Act. The respondents refused to leave the premises.

[13] Mr James said that he would be calling the police. Mr Seiffert contacted Ms Burgess at the Office of Industrial Relations and requested assistance in relation to entering the work site.

[14] Senior Constable Easton was the first police officer to arrive at the site followed by Senior Constable Mackay and Constable Cooper. Senior Constable Mackay and Constable Cooper spoke to the respondents in a small office at the work site. The respondents stated that they were union officials and were at the work site for the purpose of conducting a workplace health and safety inspection. The respondents said that they were remaining in order to exercise their rights under ss 117 and 118 WHS Act.

[15] At about 9.00 am the industrial inspectors, Ms Burgess and Mr Azcune[8] arrived at the site and spoke to the respondents. The respondents told them that they had entered the premises in accordance with s 117 WHS Act and were seeking to exercise their functions pursuant to s 118 WHS Act.

[16] The industrial inspectors requested that Mr James provide them with documentation and access to the workplace in order to assist them to resolve the dispute between the respondents and ENCO. Mr James refused to provide the requested documentation or provide access to the industrial inspectors. Ms Burgess eventually told the respondents that she was unable to assist with their entry.

[17] The industrial inspectors left the premises without issuing any direction or making any determination in relation to the matter. After the departure of the industrial inspectors the respondents informed the police officers that they intended to remain on the premises in order to exercise their rights under the WHS Act.

[18] At about 11.15am the respondents were arrested for the offence of trespass by remaining on the premises. There were video recordings made of the conversation principally between Sergeant Lewis and some of the respondents leading up to and including the time of arrest.

The grounds on which the magistrate's no case ruling is challenged

[19] The appellant contends that, in concluding that the respondents had no case to answer, the magistrate erred in three respects in finding that:

(a) the conduct of the respondents in remaining on the premises was authorised;

(b) the respondents were entitled to the defence under s 22 Criminal Code 1899 (Qld);

(c) the police breached the provisions of s 634 Police Powers and Responsibilities Act 2000 (Qld) ("PPR Act").[9]

The correct approach in determining a no case submission

[20] The determination of a no case submission requires the prosecution case to be taken at its highest: R v Goldsworthy, Goldsworthy & Hill.[10] In the context of a trial by jury, a directed verdict of not guilty can only be given if the prosecution case taken at its highest cannot support a verdict of guilty: Doney v The Queen.[11]

[21] In Goli v Blue 11 Pty Ltd[12] Porter QC DCJ held that the same approach should be adopted by magistrates hearing summary trials.

[22] In Fawkes v Schadwell, ex-parte Schadwell[13] the Full Court held that at a summary trial a defendant may submit that there is no case to answer at the close of the prosecution case, and the court was required to rule on that submission without the defendant being asked to elect whether or not to call evidence.[14] Lucas J made the following comments:

"I only wish to add for myself that the decision given by the Court in this case does not, of course, in any way affect the authority of the remarks made by Philp J in this court in Cumming v Cumming with the agreement of the other members of the court. His Honour said this:

'I think a magistrate should be very slow to determine the question of sufficiency of evidence upon the application of counsel for the defendant at the end of the complainant's case.

There is no law which obliges him to make the determination at that stage. Except in the very clearest cases it is wiser for him to hear the evidence (if any) adduced by the defendant before making his final determination. Of course, if counsel for the defence intimates that he will call no evidence the question of sufficiency of evidence calls for immediate determination.'"[15]

[23] The outcome in Goli v Blue 11 Pty Ltd[16] illustrates why a cautious approach to a no case submission may have merit in particular circumstances. In that case the magistrate was found to have erred in ruling that the respondents had no case to answer. The magistrate had expressed views on the merits of the case, the credibility of a prosecution witness and the weight to be accorded to inferences that arose on the evidence.[17] Porter QC DCJ held that it would be unfair to the prosecution to direct that the hearing continue before the same magistrate.[18] Accordingly the matter was remitted to the Magistrates Court for rehearing by a different magistrate.

[24] As was explained by the High Court in May v O'Sullivan:[19]

"When, at the close of the case for the prosecution, a submission is made that there is 'no case to answer', the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a 'case to answer' has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty."[20]

[25] The respondents were charged with trespass contrary to s 11(2) Summary Offences Act which provides:

(2) A person must not unlawfully enter, or remain in, a place used as a yard for, or a place used for, a business purpose.

Maximum penalty - 20 penalty units or 1 year's imprisonment.

See the Police Powers and Responsibilities Act 2000, section 634 for safeguards applying to starting proceedings for particular offences in this division.

(3) This section does not prevent an authorised industrial officer entering a workplace in accordance with the terms of the person's appointment as an authorised industrial officer."[21]

[26] The safeguards in s 634 PPR Act applied to the offence. Section 634 relevantly provides:

"634 Safeguards for declared offences under Summary Offences Act 2005

(1) This section applies to an offence under the Summary Offences Act 2005 that is a declared offence for this Act.

(2) A police officer who suspects a person has committed a declared offence must, if reasonably practicable, give the person a reasonable opportunity to explain -

(a) if the offence involves the person's presence at a place - why the person was at the place; or

(b) if the offence involves entering a place - why the person entered the place; or

(b) the police officer considers the explanation given is not a reasonable explanation; or

(c) because of the person's conduct, it is not reasonably practicable to give the person a reasonable opportunity to give an explanation;

It may not be reasonably practicable to give the person a reasonable opportunity to give an explanation because of the person's conduct, for example, the person may be struggling or speaking loudly without stopping.

the police officer may start a proceeding against the person for the declared offence.

declared offence means an offence against section 11, 12, 13(1), 14, 15, 16 or 17 of the Summary Offences Act 2005."

[27] The respondents' right to enter the premises of ENCO Precast is governed by s 117 WHS Act which provides:

"117 Entry to inquire into suspected contraventions

(1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.

(2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring."

[28] The respondents' rights while at the premises are set out in s 118 WHS Act which provides:

"118 Rights that may be exercised while at workplace

(1) While at the workplace under this division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act -

(a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention;

(b) consult with the relevant workers in relation to the suspected contravention;

(d) require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that -

(ii) is accessible from a computer that is kept at the workplace;

(e) warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk.

(2) However, the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.

(3) A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d).

(4) Subsection (3) places an evidential burden on the defendant to show a reasonable excuse.

At least 24 hours notice is required for an entry to a workplace to inspect employee records or other documents held by someone other than a person conducting a business or undertaking. See section 120.
The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth."

The statutory framework in relation to rights of entry pursuant to the Fair Work Act 2009 (Cth) and Work Health and Safety Act 2011 (Qld)

[29] The Fair Work Act 2009 (Cth) provides in s 26 that:

"26 Act excludes State or Territory industrial laws

(1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer."

[30] However, by s 27(1)(d)(iii), the Fair Work Act does not apply to any non-excluded matters. The non-excluded matters include occupational health and safety.[22] The WHS Act deals with occupational health and safety, and is therefore intended to operate interactively with the Fair Work Act.[23]

[31] Part 3-4 Fair Work Act deals with the rights of the officials of organisations who hold entry permits to enter premises for purposes related to their representative role under the Fair Work Act and under State or Territory OHS laws. Division 3 sets out the requirements for exercising rights under State or Territory OHS laws. Section 494(3) provides that a State or Territory OHS law is a law of a State or a Territory prescribed by the regulations. The WHS Act is a State OHS law prescribed by the regulations.[24]

[32] By s 494(1) Fair Work Act, an official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.[25]

[33] The Fair Work Act contains the following civil remedy provisions:

A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part.

Note: This section is a civil remedy provision (see Part 4-1)."

"502 Person must not hinder or obstruct permit holder

(1) A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.

Note: This subsection is a civil remedy provision (see Part 4-1).

[34] The WHS Act provides in s 124 that a WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act or an industrial officer authority.[26]

[35] A union may apply to the industrial registrar for the issue of a WHS entry permit to a person who is an official of the union: s 131(1) WHS Act.

In considering whether to issue a WHS entry permit, the industrial registrar must take into account -

(b) the object of allowing union right of entry to workplaces for work health and safety purposes.

[37] Part 7 WHS Act deals with workplace entry by WHS entry permit holders. There are three grounds of entry. Division 2 (which includes ss 117 and 118) relates to entry to inquire into suspected contraventions. Division 2 also includes s 120 which relates to entry for the purpose of inspecting, or making copies of employee records, and other documents that are directly relevant to a suspected contravention. Division 3 deals with entry to consult and advise workers who wish to participate in discussions on work health and safety matters.

The issue of whether the respondents were authorised to remain on the premises

[38] The magistrate considered that a narrow construction of s 11(3) Summary Offences Act, "so that it applied only to entry to premises, would defeat the purposes of the legislation and would be contrary to construction principles in the Acts Interpretation Act, s 14B."[27] The magistrate accepted the submissions made by Mr Ryan on behalf of the respondents.[28]

"The Prosecution say because there was no written direction by IR officers, pursuant to s 141A of the Workplace Health and Safety Act, the defendants' continuing presence was unlawful. This occurred because the employer would not give the information required. I do not accept that that has the effect the lawful entry became unlawful."[29]

[40] Mr Nicolson submitted that the prosecution case was based on the respondents remaining on the premises after having been asked to leave.[30] He pointed out that s 141 WHS Act provides that where a dispute arises about the exercise or purported exercise of a right of entry, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute. If the inspector is reasonably satisfied that the permit holder has a right of entry, a written direction can be given to the person conducting the business to immediately allow entry: s 141A(2)(b) WHS Act.

[41] Mr Nicolson submitted that in circumstances where the permit holder's authority was challenged by a person conducting the business, the appropriate course is to seek referral of the matter to the Industrial Commission for directions.

[42] Mr Nicolson submitted that the refusal by the industrial inspector to issue written directions pursuant to s 141A(2)(b) WHS Act "gives rise to a necessary inference that the inspector could not be satisfied that the respondents (the entry permit holders) had the standing to be provided the material requested."[31] He submitted that any right of the respondents to remain on the premises had therefore been extinguished.[32]

[43] Mr Ryan submitted that the magistrate was correct in determining that upon a proper construction of s 11(3) Summary Offences Act, an immunity from liability is conferred upon authorised industrial officers who remain at a workplace in order to exercise their rights under s 118 WHS Act.[33] He submitted that the magistrate was correct in deciding that a narrow interpretation of s 11(3) would defeat the purpose of the legislative provision and be contrary to principles of statutory construction.[34]

[44] Mr Ryan submitted that the respondents were entitled to exercise a right of entry under s 117 WHS Act, as well as the concomitant right to exercise the powers in s 118(1).[35] He submitted that there was an inextricable link between the right of entry and the right to enquire into suspected contraventions of the WHS Act, as explained by Reeves J in Ramsay v Sunbuild Pty Ltd.[36]

[45] Mr Ryan referred to the explanatory notes to the Summary Offences Bill 2004 which state that s 11(3) was added to ensure that there was no conflict with the provisions of the Industrial Relations Act 1999 (Qld) and the Workplace Relations Act 1966 (Cth). The explanatory notes state that:

"The latter Acts provide lawful authority for an authorised industrial officer to enter a workplace to carry out a function the officer may perform under those Acts. Clause 11 of the Bill relates to trespass. Although the clause requires that an entry must be unlawful before it constitutes a trespass, the amendment removes any doubt that there could be a conflict between the Bill and the Acts."

[46] Mr Ryan submitted that an interpretation of s 11(3) Summary Offences Act that establishes an immunity from prosecution when an authorised industrial officer has acted in conformity with the legislative requirements to enter a workplace pursuant to s 117 WHS Act, and then remain on the premises to exercise rights under s 118, is to be preferred over an interpretation that would render the industrial officer liable to conviction for trespass.[37]

[47] Mr Ryan submitted that the right of the respondents to remain on the premises was not extinguished by the fact that the inspector declined to issue a written direction.[38] He submitted that it was doubtful whether s 141A WHS Act has any application in the resolution of disputes concerning permit holders remaining on premises as opposed to disputes in relation to the right of entry.[39]

[48] In Flori v Winter & Ors[40] Fraser JA summarised the approach to statutory construction discussed by the High Court in The Queen v A2:[41]

"The task is to ascertain the intended meaning of the statutory text. The construction exercise must focus upon a consideration of the statutory words in their context. The context includes surrounding statutory provisions, other aspects of the statute and the statute as a whole, any mischief in the pre-existing state of law the statute was designed to address, and an evident purpose of the statute. Under the Acts Interpretation Act 1954 (Qld) an interpretation of a provision of an Act that will best achieve its purpose is to be preferred to any other interpretation, and consideration may be given to extrinsic material, including a report of a Royal Commission, Law Reform Commission or similar body that was laid before the Legislative Assembly, an explanatory note or memorandum relating to the Bill, and the speech made to the Legislative Assembly by the member when introducing the Bill. The extrinsic material may be considered to provide an interpretation of an ambiguous or obscure provision, to provide an interpretation that avoids a manifestly absurd or unreasonable result of the ordinary meaning of the provision, or in any other case to confirm the interpretation conveyed by the ordinary meaning of the provision."[42]

[49] Mr Ryan characterised s 11(3) Summary Offences Act as "representing an immunity from liability for what might otherwise be an offence of trespass".[43]

[50] An important aspect of statutory construction requires that an intention to interfere with common law rights should be expressed clearly. In Coco v The Queen[44] the plurality of Mason CJ, Brennan, Gaudron and McHugh JJ said:

"Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorized or excused by law. Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, as Gaudron and McHugh JJ observed in Plenty v. Dillon:

'(I)nconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights'."

[51] In the context of the present case the comments by the Full Court of the Federal Court of Australia in Australian Building and Construction Commissioner v Powell[45] are worth noting:

"... notwithstanding the closely regulated environment of industrial and employment legislation, provisions as to entry on to work sites and the regulation thereof should be construed conformably with the language used by Parliament practically and with an eye to commonsense so that they can be implemented in a clear way on a day-to-day basis at work sites. The legislation needs to work in a practical way at the work site, and if at all possible not be productive of fine distinctions concerning the characterisation of entry on to a site."[46]

[52] Section 14B(1) Acts Interpretation Act 1954 (Qld) allows consideration to be given to extrinsic materials if the statutory provision is ambiguous or obscure, or if the ordinary meaning would lead to a result that is manifestly absurd or unreasonable, or to confirm the interpretation conveyed by the ordinary meaning of the provision. However, s 14B(2)(a) provides that in deciding whether consideration should be given to extrinsic material, regard is to be had to the desirability of a provision being interpreted as having its ordinary meaning.

[53] The provisions in s 117 and s 118 WHS Act are clear and unambiguous. By s 117(1) a WHS permit holder has a right to enter a workplace for the purpose of inquiring into a suspected contravention relating to a relevant worker.[47] The WHS entry permit holder must reasonably suspect, before entering the workplace, that the contravention has occurred or is occurring.[48] The right of entry conferred by s 117 clearly allows an entry permit holder to remain at a workplace for the purpose of conducting the inquiries provided for in s 118.

[54] The WHS Act contains some limitations on the right of entry. A WHS entry permit holder may only exercise a right of entry during the usual working hours at the workplace.[49] The right of entry may only be exercised in relation to the area of the workplace where the relevant workers work, or any other work area that directly affects the health or safety of those workers.[50]

[55] The broad interpretation of s 11(3) Summary Offences Act which was adopted by the magistrate would have the surprising consequence that in circumstances where a dispute arose in relation to the right of an entry permit holder to remain at a workplace, the person would nevertheless be entitled to remain at least until the close of business.

[56] The WHS Act contains a mechanism for the resolution of disputes in relation to a right of entry by the appointment of an industrial inspector at the request of any party. Sections 141 and 141A provide:

"141 Application for assistance of inspector to resolve dispute

If a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute."

"141A Powers of inspector asked to assist in resolving dispute

(a) an inspector is appointed by the regulator under section 141 to assist in resolving a dispute; and

(i) whether the WHS entry permit holder has a right to enter the workplace under division 2 or 3; or

(ii) whether section 119 or 122 has been complied with in relation to notice of the entry or purported entry.

This section does not apply if the dispute is about rights the WHS entry permit holder may exercise while at the workplace under division 2 or 3.

(a) decide the matter mentioned in subsection (1)(b)(i) or (ii); and

(b) if the inspector is reasonably satisfied the WHS entry permit holder has a right of entry under division 2 or 3 - give the person conducting the business or undertaking a direction, in writing, to immediately allow the WHS entry permit holder to enter the workplace under a stated provision of division 2 or 3.

The commission may review a decision made under subsection (2) in dealing with a dispute under subdivision 2 - see section 142A.

(3) A direction under subsection (2)(b) must state -

(a) that the inspector is reasonably satisfied the WHS entry permit holder has a right to enter the workplace under division 2 or 3; and

(b) the reasons the inspector is reasonably satisfied about the right to enter.

(4) A person given a direction under subsection (2)(b) must comply with it.

(5) This section does not limit the powers of the inspector under this Act.

the inspector's power to issue a notice under part 10

[57] The inspector may decide whether the WHS entry permit holder has a right to enter the workplace.[51] If the inspector is reasonably satisfied that the WHS entry permit holder has a right of entry, a written direction can be given to the person conducting the business to immediately allow the WHS entry permit holder to enter the workplace.[52] The power of the inspector does not extend to disputes about the rights an entry permit holder may exercise while at the workplace.[53] A person given a direction by the inspector must comply with it.[54]

[58] A very clear legislative intent would be required to confer upon entry permit holders a right to remain at a workplace notwithstanding the existence of a dispute in relation to the purported exercise of the right to enter. The immunity created by s 11(3) applies where an authorised industrial officer enters a workplace in accordance with the terms of the person's appointment. In Benning v Wong[55] Barwick CJ said:

"... a statute only authorizes those acts which it expressly nominates and those acts and matters which are necessarily incidental to the acts so expressly authorized or to their execution."[56]

[59] The argument for the respondents, which was adopted by the magistrate, ignores the rights of the occupier. In Kuru v New South Wales[57] the High Court considered provisions in the Crimes Act 1900 (NSW) which permitted a police officer who believed on reasonable grounds that a domestic violence offence has recently been, or was being, committed, or was imminent or likely to be committed, to enter and remain in any dwelling-house, if invited to do so by a person who apparently resided there. A police officer could not enter or remain by reason of invitation only if the authority to enter or remain was apparently refused. The following statements by the plurality of Gleeson CJ, Gummow, Kirby and Hayne JJ are relevant:

"As was pointed out in this Court's decision in Plenty v Dillon, it is necessary to approach questions of the kind now under consideration by recognising the importance of two related propositions. First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter. Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land. And in the circumstances of this case it is also important to recognise a third proposition: that an authority to enter land may be revoked and that, if the authority is revoked, the entrant no longer has authority to remain on the land but must leave as soon as is reasonably practicable.

In the case of a police officer's entry upon land, this is not necessarily a great burden. As has already been pointed out, the police officer may then (or earlier) seek a warrant which may be granted in large terms (s 357G(3)). Such a warrant may be sought by telephone (s 359G(4)). It is granted by a Magistrate. Although the grant of a warrant is an administrative act, it is performed by an office-holder who is also a judicial officer enjoying independence from the Executive Government and hence from the police. This facility is thus an important protection, intended by Parliament, to safeguard the ordinary rights of the individual to the quiet enjoyment of residential premises. Where a case for entry can be made out to a Magistrate, the occupier's refusal or withdrawal of permission to enter or remain maybe overridden. However, this is done by an officer who is not immediately involved in the circumstances of the case and who may thus be able to approach those circumstances with appropriate dispassion and attention to the competing principles at stake."

[60] In R v Conway[58] the Court of Appeal considered the general power of a police officer to enter premises pursuant to s 19 PPR Act. As McMurdo P, with whom Atkinson and Mullins JJ agreed, said:

"Nothing in the Act diminishes the long-established common law principle that every unauthorised entry upon private property is a trespass and a person in possession or entitled to possession of premises has the right to exclude others from those premises. A police officer who enters or remains on private property without leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law."

[61] The Industrial Commission has power to deal with a dispute about the exercise or purported exercise of a right of entry.[59] The respondents have the right to make an application to the Industrial Commission to deal with the dispute.[60]

[62] The right of an entry permit holder to enter a workplace is somewhat different to entry of premises by a police officer pursuant to a search warrant. The object of the WHS Act is to protect workers against harm to their health and safety by eliminating or minimising risks. The objects specified in s 3 include:

**(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by - **

(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant; and

(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from particular types of substances or plant as is reasonably practicable."

[63] The right of entry pursuant to s 117 WHS Act is "... free standing where the criteria prescribed by ss 117 and 119 are satisfied": Ramsay and Anor v Menso and Anor.[61]

[64] In Darlaston v Parker[62] Flick J said:

"It must be constantly recalled that any conferral of a statutory right to enter premises, be they private premises or business premises, is a serious encroachment upon liberty and all such statutory provisions must be construed so that 'the encroachment is no greater than the statute allows, expressly or by necessary implication': Citibank Ltd v Federal Commissioner of Taxation per Lockhart J. On appeal, see: Federal Commission of Taxation v Citibank Ltd."

[65] It was an agreed fact that the respondents were "...exercising authority to enter under the Fair Work Act and the Work Health and Safety Act..."[63] However, Mr James' evidence, which disputed the basis of the entry, was not challenged.

[66] The respondents' rights are enforceable, as explained by Reeves J in Ramsay v Sunbuild Pty Ltd.[64] Proceedings for a contravention of the WHS civil penalty provisions in ss 144 and 145 WHS Act may only be commenced by the regulator or an inspector with the written authority of the inspector: s 260 WHS Act. However, the respondents, as persons who may have been affected by contraventions of ss 501 and 502(1) Fair Work Act, could commence proceedings in the Federal Court or Federal Circuit Court seeking appropriate declarations, injunctions and penalties.[65]

[67] The fact that the respondents may be inconvenienced by having to take steps to enforce their rights pursuant to s 142 WHS Act is not a reason for extending the scope of operation of the right of entry. In Plenty v Dillon[66] police officers had entered the appellant's farm for the purpose of serving a summons on his daughter pursuant to the Juvenile Courts Act 1971 (SA). The relevant provision of the Justices Act 1921 to 1975 (SA) provided that a summons could be served personally or by leaving it at the person's last or most usual place of abode. The police officers had no express or implied consent to go on to the appellant's property. The appellant sued for trespass to land. Gaudron and McHugh JJ said:

"A person who enters or remains on property after the withdrawal of the licence is a trespasser. In Davis v Lisle, police officers who had lawfully entered a garage for the purpose of making inquiries were held to have become trespassers by remaining in the garage after they were told by the proprietor to 'get outside'."[67]

"A number of statutes also confer power to enter land or premises without the consent of the occupier. But the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise be tortious conduct.[68]

"Of course, inability to enter private property for the purpose of serving a summons may result in considerable inconvenience to a constable wishing to serve the defendant. But inconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights.[69]

[68] Mr James said that he denied further entry to the respondents because he believed there were no "relevant" workers on the site and that the entry notices "were very general in their nature".[70] He said that he discussed with the respondents that the matter had "... been through the commission previously, there was no evidence that there was (sic) relevant workers on site and that we had - they had - we didn't believe that they had coverage of our site".[71] An entry permit holder is required by s 119(1) WHS Act to give notice of the entry and the suspected contravention, as prescribed by regulation, to the relevant person conducting the business or undertaking and the person with management or control of the workplace.[72] However, the requirement to give notice of entry does not apply if to do so would defeat the purpose of entry, or unreasonably delay the WHS entry permit holder in an urgent case.[73]

[69] Ms Burgess attempted to ascertain whether any relevant workers were in the workforce and asked Mr James to provide the names, contact details and job descriptions of all employees. She also asked to observe and take photographs of new plant.[74] Ms Burgess attempted to explain to Mr James that her request for information was for the purpose of establishing the validity of entry, rather than in relation to the alleged suspected contraventions.[75] Ms Burgess advised Mr James that s 165 of the WHS Act allowed an inspector to make inquiries and require information. She was provided with documents relating to a Queensland Industrial Relations Commission matter from the middle of 2018 but considered that to be a separate matter and therefore the documents were not relevant.[76]

At a glance

Court

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Before

Source

Judgment (511 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (17)