Validity of the Examination Notice
33 The applicant places substantial reliance upon the judgment of the Victorian Court of Appeal in Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2018] VSCA 165. That case was concerned with the validity of a notice to provide information and produce documents issued under s 9(1) of the Occupational Health and Safety Act 2004 (Vic). In passages emphasised by the applicant, Kaye JA held:
78 There is no direct authority on the requirements that are necessary to be fulfilled in order that a notice under s 9 of the OHSA be valid. However, there are a number of decisions concerning provisions contained in other legislation which, in a similar manner to s 9 of the OHSA, entitled an investigative or enforcement authority to require the compulsory provision to it of information or documents. The principles, outlined in those cases, need to be adapted, in order to allow for differences between the legislation in those cases and s 9 of the OHSA, both in the language in which the particular provisions were couched, and also in order to take into account the different legislative contexts in each case. Nevertheless, and bearing that caveat in mind, the decisions in those cases are based, significantly, on general principles, that are applicable to the general class of provisions, to which s 9 of the OHSA belongs, and which entitle an investigative or enforcement authority to require the compulsory provision to it of information or documents.
79 The fundamental principle, discussed in the cases, is that a notice, requiring the compulsory provision of information or documents, must fulfil two important conditions. First, the notice must disclose, on its face, that it is an exercise of the power which is conferred on the Authority by the statutory provision in question. Secondly, the notice must specify, with reasonable clarity, the information that the recipient is required to provide, or the documents that the recipient is required to produce, so as to enable it to be judged whether the Authority in question is entitled to require the provision of the information or documents stipulated in the notice.
34 The cases referred to by Kaye JA at [78]-[79] include Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565; 57 FLR 368 at 375-376; Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581 at 584, 591 (dealing with s 155 of the Trade Practices Act 1975 (Cth)); Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 525 (s 264 of the Income Tax Assessment Act 1936 (Cth)); Thorson v Pine [2004] FCA 805 at [5]-[9]; Donnelly v O'Donnell (2005) 146 IR 434 at [4] (s 86(1A) of the Workplace Relations Act 1996 (Cth)); D'Anastasi v Environment, Climate Change and Water NSW (2011) 81 NSWLR 82 at [39]-[43] (s 193 of the Protection of the Environment Operations Act 1997 (NSW); and Construction, Forestry, Mining and Energy Union v Alfred (2016) 242 FCR 35 at [16], [24]-[25] (s 712 of the FW Act). In Aurora, Kaye JA distilled from these cases principles which his Honour held were applicable to a general class of provisions which entitle an authority to require the compulsory provision of information or documents (see also [86]-[96]). However, his Honour acknowledged that these principles need to be adapted to different legislative contexts (see also [91]).
35 The decision of the High Court in Ousley v The Queen (1997) 192 CLR 69 provides an example of where one of the principles described by Kaye JA at [79] was not transposable to a different statutory context. The High Court was concerned with s 4A of the Listening Devices Act 1969 (Vic), which required that a warrant specify a number of prescribed matters. The majority (Toohey J at 83, McHugh J at 110-111 and Gummow J at 128) held that, as the provision comprehensively set out all the matters required to be stated in a warrant, there was no further requirement that the basis of the jurisdiction to issue the warrant also be disclosed. The case is authority for the proposition that the validity of a coercive notice must depend upon construction of the particular statutory scheme under which the notice is issued.
36 There are two significant differences between the circumstances of this case and the circumstances in Aurora and the cases it considered. The first is that s 61D(a) of the BCI Act requires that an examination notice must be in the prescribed form, whereas there was no prescribed form under the statutory schemes considered in the other cases. Section 7 of the BCI Regulations provides that Form 3 sets out the form of an examination notice that requires a person to attend before the Commissioner to answer questions relevant to an investigation. Form 3 sets out the matters required to be stated in such an examination notice.
37 The applicant submits that there is a principle identified in Aurora that the recipient of a coercive notice should be able to ascertain from the face of the notice whether it is a notice that the issuer was entitled to issue. However, the application of that principle depends upon the particular statutory scheme in question and must yield to any contrary intention. Section 61D of the BCI Act comprehensively describes the form and content requirements of an examination notice. Section 61D(a) of the BCI Act and s 7 of the BCI Regulations make it clear that an examination notice that requires a person to attend before the Commissioner to answer questions relevant to an investigation must be in Form 3. Form 3 expressly and comprehensively sets out the matters required to be included. There is no room for any implication of unstated requirements by reference to a general principle applicable to different statutory regimes. The Examination Notice is not subject to any independent requirement that it must disclose that it is a notice the Deputy President was entitled to issue.
38 The second difference is that the present case is specifically concerned with a notice to attend to answer questions, whereas Aurora and the other cases dealt with notices for the production of information or documents.
39 In Aurora, Kaye JA at [79] identified a principle that a coercive notice must specify, with reasonable clarity, the information or documents required to be provided, so as to enable it to be judged whether the authority is entitled to require the provision of that information or those documents. Form 1 under the BCI Regulations requires specification of the information required to be given. Form 2 requires specification of the documents or kinds of documents required to be produced. Those forms are consistent with the principle identified in Aurora. Where an application is made to declare such an examination notice invalid, the Court can make a judgment as to whether the information or documents are relevant to the investigation described in the examination notice. If they are adjudged not to be relevant, the examination notice will be invalid since it purports to require information or documents that cannot, under ss 61B(2) and 61C(1)(b) of the BCI Act, be required to be given or produced.
40 The applicant submits that Aurora supports the proposition that the Examination Notice must provide sufficient details to enable her to judge whether any question asked by the Commissioner during the examination is relevant to the investigation. However, an examination notice to produce information or documents is quite different from an examination notice to answer questions. The difference is that Form 3 does not require specification of the questions that are to be asked.
41 Section 61B(1) provides, relevantly, that the Commissioner may apply for the issue of an examination notice if the Commissioner believes on reasonable grounds that a person is capable of giving evidence that is relevant to such an investigation. Section 61B(2) provides that the examination notice may require the person to attend before the Commissioner and answer questions relevant to the investigation. Consistently with s 61B(1) and (2), Form 3 requires the recipient to attend before the Commissioner to answer questions that are relevant to an investigation by an inspector into a suspected contravention. Section 62 provides that a person commits an offence if the person has been given an examination notice and fails to answer questions relevant to the investigation while attending as required by the examination notice, the maximum penalty for which is six months' imprisonment.
42 It is clear that the recipient of an examination notice to attend to answer questions is only required to answer questions relevant to the investigation into the suspected contravention. It is common ground that the relevance of a question must be determined objectively from the face of the examination notice.
43 However, the applicant's submission that the Examination Notice should be declared invalid now because she cannot tell from that document whether the questions she will be asked are relevant, cannot be accepted. That is because the questions she will be asked do not have to be disclosed until she attends for the examination. Until the questions become known by being asked, it cannot be judged whether or not the particulars in the Examination Notice are adequate to demonstrate that the questions are relevant to the investigation into the suspected contraventions.
44 The Examination Notice contains some particulars of the suspected contraventions. The particulars include the statutory provisions suspected to have been contravened; the place; the dates; the names of two of the suspected contraveners; the name of an entity alleged to have been subjected to the contravening conduct; and, broadly, the nature of the suspected contravention. The Examination Notice indicates that the suspected contraventions involve industrial action taken to coerce Multiplex Constructions Pty Ltd or an unnamed third party into complying with a request made by the CFMMEU to remove Mr Cray from his position at the Brisbane Quarter Project.
45 Some questions may be asked at the examination before the Commissioner which, having regard to the particulars supplied in the Examination Notice, may be obviously relevant to the investigation into the suspected contraventions. Some questions may be obviously irrelevant. Some questions may be not clearly relevant, nor clearly irrelevant. There may be some questions the relevance of which cannot be judged, one way or another. Until the questions become known by being asked, their relevance or irrelevance or the difficulty in judging their relevance can only be a matter of speculation. Accordingly, the applicant's submission that the Examination Notice fails to provide sufficient details to allow her to judge whether the questions she is asked are relevant to the investigation cannot be accepted at this stage - it depends upon what questions are asked.
46 In some cases, the suspected contraventions may be so vaguely described and so lacking in particularity in an examination notice that it is apparent that whatever questions are asked, very few could be judged to be relevant to the investigation. In such a case, the examination notice may be argued to be invalid, perhaps on the ground that it is an abuse of process, or that it fails to comply with the prescribed form. This is not such a case. The particulars in the Examination Notice are, on their face, adequate to allow a number of questions to be asked that would be obviously relevant to the suspected contraventions.
47 I reject the applicant's submission that the Examination Notice should be declared invalid because she cannot tell from that document whether the questions she will be asked are relevant.
48 It may be observed that by procuring an examination notice which contains only vague particulars of the suspected contravention, the Commissioner will create a rod for his own back. An examinee can only be compelled to answer questions that are relevant to an investigation into a suspected contravention. If, upon an objective reading of the examination notice, it cannot be determined whether a question is relevant, the examinee cannot be compelled to answer it. The greater the generality of the description of the suspected contravention in an examination notice, the greater may be the difficulty in establishing that a particular question is relevant. On the other hand, a well-particularised examination notice will make it easier for the relevance of any particular question to be demonstrated. It is not apparent why the Examination Notice in this case failed to include the particulars known to the Commissioner and subsequently provided to the applicant (described at [9]), but it is obvious that if those particulars had been included, the scope for disputation about the relevance of questions to be asked at the examination would be substantially lessened.
49 The Commissioner submits that the Examination Notice provides more particulars than are in fact required. Form 3 requires that Part 3 of the Schedule include, "suspected contravention of the Building and Construction Industry (Improving Productivity) Act 2016 or designated building law". The Commissioner submits that, on its proper construction, this part of the form only requires specification of the section of the Act suspected to have been contravened, and requires no other particulars of the suspected contravention.
50 I reject the Commissioner's submission. First, Part 3 of the Schedule to Form 3 refers to a "suspected contravention" of the BCI Act or designated building law. That phrase is picked up from s 16(1)(b) of the BCI Act, which provides, relevantly, that the Commissioner has the function of, "investigating suspected contraventions…of this Act [or] designated building laws". The phrase also appears in s 61B(1)(a), which refers to the Commissioner's belief on reasonable grounds that a person has information or documents relevant to, "an investigation by an inspector into a suspected contravention…of this Act or a designated building law". In both provisions the use of the phrase "suspected contravention" encompasses conduct that is suspected to contravene the BCI Act or a designated building law, and does not refer merely to the section of the Act suspected to have been contravened. The phrase "suspected contravention" in Form 3 should be interpreted as having the same meaning as in the BCI Act: see s 13(1)(b) of the Legislation Act 2003 (Cth).
51 Second, the language of Form 3, considered as a whole, is consistent with requiring a description of the suspected conduct comprising or forming part of the suspected contravention. Note 1 within Form 3 states that, "The details relating to the investigation are specified in Parts 1 to 4 of the Schedule to this notice". That language seems to be picked up from s 61B(5)(b) of the BCI Act, which provides that an application for an examination notice must be accompanied by an affidavit which includes, "details of the investigation (or investigations) to which the application relates". The applicant did not advance any argument that Part 3 of the Schedule to Form 3 must include the same details provided in the Commissioner's affidavit, but, even so, the phrase used in Form 3 should be taken to be used consistently with the BCI Act. That use encompasses the suspected conduct comprising the suspected contravention, and does not merely refer to the section of the Act suspected to have been contravened. What must be disclosed in Form 3 is the "details relating to the investigation", including details of the suspected conduct.
52 Third, the purpose of the Schedule to Form 3 must be to appraise the examinee of the "details relating to the investigation", so that when the person is examined, he or she can make a judgment as to whether the questions asked are relevant to the investigation of the suspected contravention. As has been discussed, the examinee is not obliged to answer questions that, on the face of the examination notice, are irrelevant or cannot be determined to be relevant. On the Commissioner's argument, the Schedule would reveal only the address (if any) to which the suspected contravention relates (in Part 1), the building industry participant or kind of building industry participant (Part 2), the section of the Act suspected to have been contravened (Part 3) and the period during which the suspected contravention took place (Part 4). Without any description of the suspected conduct, it can be imagined that relatively few questions could be judged to be relevant to the investigation of the suspected contravention. To take the present case as an example, if the particulars in Part 3 of the Schedule to the Examination Notice had been omitted, and the applicant were asked whether she was aware of Mr Cray, or whether she was aware of a request by the CFMMEU to remove Mr Cray from the site, she may well be entitled to decline to answer on the basis that the question could not be judged to be relevant to the investigation. That is because it would be unknown whether Mr Cray had anything to do with the suspected contravention under investigation. That would be inconsistent with the provision of details of the investigation to the examinee for the purpose of allowing the examinee to judge whether questions are relevant and have to be answered.
53 Fourth, the Commissioner did not explain why the legislative intention might be to withhold particulars of the suspected conduct known to the Commissioner from the examinee. Such a purpose - involving requiring an examinee to answer relevant questions while, at the same time, withholding information that could allow the examinee to determine the relevance of the questions asked - would seem inconsistent with the object in s 3(2)(c) of the BCI Act of ensuring respect for the rights of building industry participants. The Commissioner's construction would only promote disputes about the relevance of questions and consequent disruption of examinations. That would seem inconsistent with the object in s 3(2)(e) of providing effective means for investigating and enforcing the BCI Act and designated building laws. The consequences of the Commissioner's construction would be inconsistent with the effective administration of examinations under the BCI Act.
54 For these reasons, I reject the Commissioner's submission that Part 3 of the Schedule to Form 3 requires only the specification of the section of the Act suspected to have been contravened and does not require particulars of the suspected conduct constituting or forming part of the suspected contravention. Part 3 requires a description of the suspected conduct that comprises, or is part of, the suspected contravention under investigation.
55 The applicant's submissions tend to suggest that an examination notice must contain particulars of the suspected contravention of the type and detail that would be required for the prosecution of an alleged offence. It may be noted that in Aurora, Kaye JA held at [91] that a "suspected contravention" need not be described in terms that would be appropriate for an allegation of contravention. It must be remembered that under s 61C(1) of the BCI Act, an examination notice is issued to assist in an investigation into a suspected contravention by allowing the Commissioner to obtain information, documents or evidence that cannot be obtained by other methods. Therefore, at the time when the examination notice is issued, it is most unlikely that the Commissioner will be in a position to give full particulars explaining how and why a suspected contravention amounts to a contravention. Form 3 does not stipulate any level of particularity of the suspected contravention that must be provided. That is because the particulars that are capable of being provided by the Commissioner will vary substantially from case to case.
56 The particulars described by the applicant (at para [29]) as missing may well be part of the information that the Commissioner is seeking to find out by examining the applicant. It follows that the applicant's submission that the Examination Notice is invalid because it fails to provide such particulars cannot be accepted.