Hindrance, Obstruction and Improper Manner
47 Section 767(1) and (2) provide as follows:
Hindering, obstruction etc. in relation to this Part
(1) A permit holder exercising, or seeking to exercise, rights:
(a) under section 747, 748 or 760; or
(b) under an OHS law in accordance with section 756 or 757;
must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 8 for enforcement.
Section 767(1), it will be noted, provides that a permit holder must not "intentionally hinder or obstruct" any person or otherwise act in an "improper manner". A number of potential sources of difficulty emerge from what may otherwise be regarded as a comparatively simple provision. These potential difficulties include establishing that any conduct was pursued "intentionally"; giving content to the expression "hinder or obstruct"; and identifying an "act" that constitutes acting in "an improper manner".
48 A person can intentionally hinder or obstruct another person, it has been said, by an active act or by conduct which is essentially negative in character: cf. Standen v Feehan [2008] FCA 1009 at [21], 175 IR 297 at 300 per Lander J. Pincus J gave the term "obstruct[ion]", then appearing in s 125(10) of the Conciliation and Arbitration Act 1904 (Cth), the same meaning in Nicol v Parr (1985) 11 IR 141 (at 143 to 144). In so concluding, Pincus J drew support as follows from a decision concerning the obstruction of a police officer:
Next, it was contended that some more positive action than that proved is necessary to constitute obstruction within the meaning of the statute. It was said that, in particular, merely requiring Mr Nicol to leave is insufficient. The weight of authority is against that contention. In Hinchcliffe v Sheldon [1955] 3 All ER 406, Lord Goddard CJ at 408, in a police obstruction case, said that "obstructing" means "making it more difficult for the police to carry out their duties". What the defendant did certainly falls within that description. Further, the submission that in such a context the notion of obstruction requires some positive action is inconsistent with the view expressed by the High Court in O'Reilly v Commissioners of the State Bank of Victoria (1983) 57 ALJR 342 at 347.
The requirement that conduct be "intentional" may serve to exclude any accidental obstruction: cf. Pounder v Police [1971] NZLR 1080 at 1084.
49 Care must be taken in not too readily placing reliance upon the manner in which perhaps the very same statutory expressions as used in one context are incorporated in a different statutory context. Whilst recognising that qualification, the guidance gleaned by Pincus J, from a police obstruction case, remains of continuing assistance. The statutory expression used in s 767(1) that must constantly be recalled is "intentionally hinder or obstruct". Again in the context of a police case, in Plunkett v Kroemer [1934] SASR 124 Napier J was considering an appeal from a summary conviction for hindering a police officer in the execution of his duties. The police officer was demanding entrance to licensed premises. In that context His Honour observed:
It must be conceded that, for the purposes of this charge, the complainant has to prove an actual hindrance, in the sense of some appreciable obstruction to, or interference with, the performance by the constable of his duty; but "hinder" is not a word of art, or capable of precise definition, and it is a question of fact and of degree whether in the circumstances of the particular case the obstruction or interference was appreciable. If the constable is frustrated in his attempt to perform his duty, or retarded in the execution thereof, then, clearly, he has been "hindered"; but I think that the fair and natural meaning of the word goes further than that. I think that a constable is "hindered" by any obstruction or interference that makes his duty substantially more difficult of performance. To take a simple illustration. If a constable is chasing a suspected person and a bystander deliberately trips the constable, but the agility of the constable enables him to keep his feet, and to continue the pursuit without any material delay, I think that the act of the bystander is a "hindrance" within the meaning of this section.
It seems to me that the plain commonsense of the case is in accordance with the findings and conclusion of the justices. It is impossible to separate the act of physical obstruction from the conduct that preceded it. Upon the reasoning of the Chief Justice in Lentahall v. Curran, [1933] S.A.S.R. 248, I think that the act of the appellant in warning those inside the hotel of the approach of the police was in itself a hindrance; but, however that may be, there is no doubt that it created a situation in which speed - upon the part of the police - was essential, and a comparatively slight delay might well be fatal to the successful performance of their duty. A delay that might be trivial in other circumstances might well be regarded as appreciable in the circumstances as found by the justices, and I see no reason for disturbing the conviction.
50 Not surprisingly, the same approach was followed in the subsequent decision of the Supreme Court of South Australia in Leonard v Morris (1975) 10 SASR 528. There in issue were the offences of "hindering a member of the police force in the execution of his duty" and "resisting a member of the police force in the execution of his duty". In that context Bray CJ concluded at 530 to 531:
Everyone agrees that nothing is to be described as hindering or resisting unless it involves a conscious and voluntary act. But is that all? Is it enough if such an act does, objectively speaking, constitute a hindrance to or a resisting of someone who happens to be a member of the police force and who happens to be engaged at the time in the execution of his duty? I think not. In the analysis which follows I deal primarily with hindering. Resisting presents less difficulties. With regard to the actus reus which constitutes hindering I accept it that, while some overt act is required and mere inaction cannot amount to hindering …, any act of interference or obstruction which makes the duty of the police officer substantially more difficult of performance is a hindering within the meaning of the section (Plunkett v. Kroemer). But the mere performance of a conscious and voluntary act which makes the duty of the police officer substantially more difficult of performance cannot be enough to constitute the offence, otherwise a lame man crossing the road, without adverting to the consequences of his action and without any knowledge of the circumstances, who causes a police car in pursuit of a fleeing criminal, also in a car, to slow down or stop so that the fugitive car gets away would be guilty of the offence and that would be absurd. Some further mental element is necessary; in addition there may be possible justifications.
What is that mental element? I think the defendant must either intend substantially to impede the particular individual who happens, whether known or unknown to him, to be a police officer in the performance of whatever that individual is engaged in, which happens whether known or unknown to the defendant, to be in the execution of his duty as a member of the police force, or else he must, being aware that what he is doing or about to do is likely so to impede that individual, decide nevertheless to do it or go on doing it. (citations omitted)
51 In Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241 Gray J again reviewed some of the authorities, including those concerning an obstruction of a highway and hindering police officers. There in issue was s 306 of the Industrial Relations Act 1988 (Cth) which made it an offence to "hinder or obstruct a person in the exercise of a power…". The defendant had refused to allow union officers to see records. In that context Gray J gave content to the reach of the statutory provision there in issue as follows at 256 to 257:
The words "hinder" and "obstruct" have often been used in the creation of offences. Well-known examples involve such things as obstructing the highway, and hindering a police officer in the execution of his or her duty. The authorities dealing with those offences recognise the necessary connection between the concept of obstruction or hindering and the nature of the activity obstructed or hindered. For instance, it is plain that every person using a highway is, in a sense, obstructing it; the space occupied from time to time by one single user cannot be occupied simultaneously by any other user. The purpose of the highway, however, is passage and repassage, so that it is recognised that the user of the highway for this purpose will not amount to an obstruction. As the High Court (consisting of Latham CJ, Rich and Dixon JJ) said in Schubert v Lee (1946) 71 CLR 589, at p 594:
Where the alleged obstruction consists in the physical presence of the defendant upon the highway it becomes necessary to reconcile the prohibition of obstruction of a highway with the reasonable user of the highway by members of the public: See Adams v Horan (1906) 26 NZLR 169. Every user of a highway for the purpose for which a highway is intended may theoretically at least lessen its commodiousness for the use of other members of the public. But that arises from the nature of things. What is not permitted is the lessening in a substantial degree of the commodiousness of the use of the highway for legitimate purposes by using it for purposes other than a highway.
See also Haywood v Mumford (1908) 7 CLR 133 at 138 in the judgment of Griffith CJ. Similarly, with respect to the offence of hindering a police officer, it has been recognised that an act which might otherwise amount to a hindering will not do so if there is lawful excuse for it, or if it is reasonable in the circumstances not to regard the police officer as hindered. See Leonard v Morris (1975) 10 SASR 528 at 533 in the judgment of Bray CJ, with respect to the question of lawful excuse (advising a person not to answer questions) and in the judgment of Wells J (at 543-544), with respect to taking into account all of the circumstances to determine the reasonableness of what might otherwise have been a hindrance.
His Honour continued at 257 to 258:
Among the obligations of an employer pursuant to s 286 of the Act is an obligation to make available certain documents and records for inspection. If an authorised officer attends at premises, and asks to see certain documents or records which he or she is entitled to inspect, some positive act will usually be required on the part of the employer, or the occupier of the premises, to make those documents and records available. As Mr Heerey put it in argument, merely to indicate that the relevant documents and records can be found somewhere in a filing cabinet within a large building would amount to a hindrance or obstruction of the right to inspect. The exact content of the positive obligation will depend upon the circumstances. If records are stored in a computer, it may be necessary for an employee with knowledge of the operation of the computer and the relevant codes to make available the relevant records for inspection. Failure to do so will amount to a hindrance or obstruction. The fact that the employee concerned would otherwise be engaged in some other work will not mean that he or she has been hindered or obstructed by the inspecting officer. If that were not so, the right to inspect would be negated. Thus, it is open to the inspecting officer, as Mr Davey and Mr Dillon did, to examine a computer screen for the purpose of looking at relevant records, even though the particular computer might otherwise be used for some ordinary work of an employee, without hindering or obstructing that employee.
His Honour finally concluded at 258:
It follows that the proper construction of the phrase "hinder or obstruct" in the proviso to s 286(1) involves a requirement that the authorised officer do some positive act by way of hindrance or obstruction, or at least decline to move from a place in which he or she is likely to hinder or obstruct an employee. Apart from a failure to move, it is difficult to envisage a hindrance or obstruction that would fall within the proviso to s 286(1) but would not involve some positive conduct on the part of the authorised officer. Even if it is unnecessary to reach this conclusion, I am of the view that the mere presence of an authorised officer who is the subject of violent dislike by one or more employees, to the extent that those employees are prepared to cease work while the authorised officer is on the premises, cannot amount to a hindrance or obstruction by the authorised officer of those employees in the performance of their work.
52 For the purposes of s 767(1) it is considered that the reference to "intentionally hinder or obstruct" is a reference to any act or conduct that actually makes it more difficult for the person who is "hindered or obstructed" to discharge his functions, other than an act or conduct which is accidental. The act must be of such a nature that it is an "appreciable" obstruction or interference. A trivial act, or even an act which could not reasonably be regarded as an obstruction or interference, would not fall within s 767(1).
53 The Full Court has recently, in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90 considered the requirement of intention for the purposes of s 767. Spender J concluded that "whether in a criminal trial or in proceedings for civil remedy, the test for intention is a subjective not an objective one": at [26]. Dowsett J also concluded that the "requirement that any hindrance or obstruction be intentional prima facie requires that there be a subjective intention to hinder or obstruct": at [46]. But this decision had not been handed down at the time of the hearing and, accordingly, none of the parties either then or subsequently have made any submissions addressed to it.
54 Difficulty is also encountered in construing the last of the phrases in s 767(1), namely the proscription of a "permit holder" acting "in an improper manner." Presumably the Parliamentary draftsman saw no need to confine an act which amounts to "act[ing] in an improper manner" to an intentional act. But conduct which falls outside of an intentional hindrance or an intentional obstruction of a person, and yet falls within an "act in an improper manner" is not further defined by either s 767 or the Act as a whole.
55 A contravention of s 767 on the basis of acting in an "improper manner", however, is not made out merely by reason of a refusal on the part of those seeking access to premises to identify the particulars of any occupational health or safety concern that they may have in mind: Hogan v Riley [2010] FCAFC 30. Finn, Lander and Jessup JJ there concluded:
[22] The essence of the Federal Magistrate's conclusion that Messrs Kivalu and O'Mara had contravened s 767(1) of the WR Act seems to have been their refusal to provide particulars of the "safety breach" which they alleged, other than to say that there had been an "incident". In so ruling, however, his Honour was implicitly imposing upon the organisers an obligation to which they were not subject under the OHS Act. …
Their Honours then set out the terms of s 78 of the Occupational Health and Safety Act 1989 (ACT), which conferred a right of entry "without notice" and a right not to "tell the occupier of the premises that the representative is on the premises if … to do so would defeat the purpose for which the premises were entered". They then continued:
... On the facts of the present case, therefore, the organisers were entitled to enter the Convention Centre site without providing Iqon with particulars of the safety matter which they wished to investigate. Section 767(3) of the WR Act takes the provisions of the OHS Act as its starting point. Save in a much more obvious case of hindrance or obstruction than the present one was, we would not regard s 767(1) as concerned to qualify or to reduce the underlying entitlement to enter upon the existence of which subs (3) is based.
Notwithstanding the difference in language between the language of this provision within the Australian Capital Territory legislation and ss 77 and 78 of the New South Wales Act, it may similarly be concluded that a contravention of s 767 would not be made out merely by reason of those seeking access not informing an occupier of the safety concerns they had in mind.