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Legal issues

5. Three legal issues arose in the proceedings. One was the nature of the review to be conducted in these proceedings. A second issue was the presence or absence of any temporal element in section 195(2) of the WHSA. The third was the content of the ‘reasonable belief” test in section 195.

6. I shall address those matters first.

The review jurisdiction

7. Section 223 of the WHSA provided that a decision to issue a prohibition order pursuant to section 195 was a decision reviewable in accordance with Part 12 of the WHSA.

8. The applicant sought an internal review of the decision to issue the Order. The internal review was not completed within the time allowed by section 226(1) of the WHSA with the result that the original decision was automatically confirmed by the operation of section 226(6).

9. The applicant successfully challenged that result in the Supreme Court of the Australian Capital Territory and that decision was set aside.

10. The respondent then conducted an internal review and the original decision to issue the Order was confirmed on 23 May 2025.

11. The applicant then commenced these proceedings in the Tribunal on 5 June 2025 seeking review of the original decision to issue the Order.

12. Section 229 of the WHSA says that an eligible person (in this case the applicant) may apply to the Tribunal for review of a reviewable decision made by the regulator or a decision made, or taken to have been made, on an internal review.

13. In the present case there was no issue that the Tribunal had jurisdiction and the relevant decision to consider was the decision to issue the Order.

14. The power to engage in a review of the decision to issue the Order is provided by the WHSA provisions I have mentioned.

15. The nature of the review is not defined by the WHSA but by the provisions of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), and 1 particularly sections 68 and 69.

16. The review to be conducted is an administrative merits review, not an appeal from the decision of the decision maker, nor is it a review in the nature of judicial review as may occur pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1989.

17. In merit review proceedings such as these, the Tribunal stands in the shoes of the decision maker and determines for itself, on the material placed before it (subject to one qualification to which I will come), what is the correct and preferable decision to be made.

1 See Jolley v Construction Occupations Registrar [2025] ACTSC 55 at [69]

18. The nature of an administrative merits review was succinctly described in Farrelly & Ors v Construction Occupations Registrar [2025] ACAT 46 (Farrelly) at [44] where it was said: Under s 68(3) of the ACAT Act, the tribunal is required to confirm, vary or set aside the decision under review and, if the decision is set aside, either make a substitute decision or remit the matter for reconsideration in accordance with any direction or recommendation of the tribunal. The principles governing merits review are well understood. The tribunal’s task is to decide what is the correct or preferable decision in the circumstances based on the evidence and submissions at the hearing, regardless whether these were available to the original decisionmaker. It is axiomatic that it is not necessary to establish, or even enquire into, whether the original decision was correct. Thus it is often said the tribunal ‘stands in the shoes’ of the original decision-maker and, in deciding what is the correct or preferable decision, decides the matter afresh.

19. So much was also said by Mossop J in Jolley v Construction Occupations Registrar [2025] ACTSC 55 (Jolley) at [70] wherein his Honour said: The function of conducting an administrative review which may lead to the confirmation, variation or substitution of the original decision where the decision of the Tribunal “is taken to be the decision of the decision-maker” (ACAT Act, s 69(2)(a)) allows the exercise to be characterised as one of administrative merits review. In Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250 at [51], a majority of the High Court described the equivalent jurisdiction of the Commonwealth Administrative Appeals Tribunal in the following terms: [E]xcept where altered by some other statute, which has not occurred here, the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.

20. In Shi v Migration Agents Registration Authority [2008] HCA 31 (Shi) Kiefel J, in a passage subsequently approved by the majority in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 (Frugtniet) at [51], described an administrative merits review in the then Administrative Appeals Tribunal (under statutory provisions relevantly identical to sectionss 68 and 69 of the ACAT Act) at [134] as follows: Section 43(1) expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decisionmaker. The Tribunal has been said to stand in the shoes of the original decision-maker, for the purpose of its review. In Minister for Immigration and Ethnic Affairs v Pochi Smithers J said that, in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person. In Liedig v Federal Commissioner of Taxation, Hill J adopted, as applicable to the Tribunal, what Kitto J said of the Taxation Board of Review in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, namely that its function is “merely to do over again … what the Commissioner did in making the assessment”, within the limits of the taxpayer’s objection.

21. The one qualification to that which fell from her Honour concerns the possible presence of a temporal element to the matter to be adjudicated. That is, for example, the relevant point in time the decision is to operate from may be earlier than the date a merits reviewer is to make its decision. I shall return to that matter shortly.

22. The parties cited a number of decisions from other jurisdictions involving similar legislative regimes to the regime applicable in the present case which purported to support a contention that administrative merits review may be concerned with, or at least involve in some way, consideration of whether the original decision maker rightly formed a reasonable belief.

23. One Full Bench and several first instance decisions of the Industrial Commission of NSW were cited, together with one first instance decision of the Queensland Industrial Relations Commission.

24. Those decisions do not bind me and are distinguishable from administrative merits review proceedings conducted under Territory legislation. Arguably they were wrongly decided. Amongst other reasons, their statements as to what is involved in administrative merits review are not in conformity with binding High Court authority as to the task to be undertaken by a tribunal such as the ACAT.

25. None of those cases cited or considered various High Court cases which describe the issue to be decided quite differently, namely that it is for the Tribunal to make up its own mind on the material placed before it and it was no concern of the reviewer to examine the original decision maker’s decision and whether it was rightly made as if the proceedings were an appeal from that decision, or were in the nature of judicial review of that decision.

26. Most significantly, none of the cases cited by the parties cited or considered Frugtniet.

27. Only one case (Chit Chit Than v SafeWork NSW & Anor [2023] NSWIRComm 1122) cited Shi, but not on the point quoted earlier in these reasons.

28. None of the cases cited or considered Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 (especially at 418-419 per Bowen CJ and Deane J, subsequently affirmed in Shi) to the effect that in administrative merits review proceedings in the Administrative Appeals Tribunal the Tribunal should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the 2 decision-maker at the time of the original decision.

29. Some of the cited cases suggested the correctness of the original decision maker’s decision went to jurisdiction. For example, in Catholic Healthcare Limited v SafeWork NSW [2025] NSWIRComm 1046 the Commissioner said at [41] that the consideration whether the original decision maker did or could have reasonably believed a certain state of affairs went to the question whether the

2 See Frugtniet at [14] notice was issued “without authority”, even if “the circumstances as proved on review would have justified the issue of the notice”.

30. This was expressed in this and other cases cited by the parties as a jurisdictional issue. That is, if a reasonable belief was not or could not have been held by the relevant original decision maker, then all that followed was invalid as being beyond the jurisdiction of the relevant merits review tribunal.

31. No superior court authority was cited within those cases to justify that conclusion, and it seems contrary to the holding in Visscher v SafeWork NSW [2023] NSWCA 164 (Visscher).

32. In Visscher, which concerned the NSW equivalents to those applying in the case before me, Meagher and Gleeson JJA said at [18] that the Commission’s jurisdiction was not dependent upon the inspector having made a valid or lawful decision, and, at [19], that the question as to the validity or otherwise of the prohibition notice had nothing whatsoever to do with the jurisdiction of the Full Bench.

33. Their Honours went on to say at [19] that the Commission’s jurisdiction was to hear the appeal in proceedings which engaged the Commission’s jurisdiction conferred by section 229(4) of the Work Health and Safety Act 2011 (NSW) (the equivalent of section 68(3) of the ACAT Act) and section 146(1)(e) of the Industrial Relations Act 1996 (NSW) (the equivalent of section 9 of the ACAT Act).

34. As I have said earlier, the cases cited by the parties are not binding on me, are distinguishable and seem contrary to the holdings in the High Court cases I have mentioned and the NSW Court of Appeal in Visscher. They are also contrary to Jolley which is binding on me (I have quoted the relevant passage earlier in these reasons).

35. Accordingly, the issue on a merits review in the Tribunal was as described in Frugtniet, Shi, Drake, Jolley and Farrelly as set out above. The temporal element

36. Kiefel J addressed the possibility of a temporal element in the relevant decision in Shi at [143] wherein her Honour said: Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.

37. That is, where the relevant decision contains no temporal element, the parties are at liberty to tender evidence in administrative merit review proceedings of matters occurring after the original decision (as well as other material which existed beforehand but which was not placed before the original decision maker).

38. In this case I am of the view that there is some temporal element in section 195 of the WHSA.

39. In these proceedings the respondent’s case was limited to section 195(1)(b). Section 195 said: 195 Power to issue prohibition notice (1) This section applies if an inspector reasonably believes that— (a) an activity is occurring at a workplace that involves, or will involve, a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard; or (b) an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard. (2) The inspector may give a person who has control over the activity a direction prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied. (3) The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable.

40. Section 195(1)(b) speaks to the future. That is, the question is whether, at the point in time when the inspector is considering all relevant matters, a reasonable belief may be formed as to whether an activity may (in the future) occur that, if it occurs, will involve a serious risk of injury to a person which emanates from an immediate or imminent exposure to a hazard.

41. If it were otherwise, then in a case such as this where the relevant construction has finished and the applicant left the site, the decision would have to be in the applicant’s favour because there was no relevant activity, no relevant workplace and no relevant risk of injury in existence.

42. Therefore, it is my view that section 195(1)(b) contains a temporal element. In my view the Tribunal must place itself at the same point in time as when the prohibition notice was issued. It follows, as Kiefel J said in Shi, that I should limit myself to evidence which was in existence at the time the prohibition notice was issued (whether or not it was placed before the original decision maker). When this issue was being discussed during the hearing I invited the parties to provide any material which had not been given to the original decision maker if they so desired.

Reasonable belief

43. The expression “reasonable belief” in section 195 of the WHSA and its synonyms appear in other statutes, and its meaning has been examined in those other statutory contexts.

44. In George v Rockett [1990] HCA 26 the High Court considered the meaning of the expressions “reasonable grounds for suspecting” and “reasonable grounds for believing” where they appeared in section 679 of the Criminal Code (Qld).

45. At [8] the Court said: When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

46. At [14] their Honours said: The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

47. In NSW, when considering the words “reasonably believes” where they appeared in the Work Health and Safety Act 2011 (NSW), the position appears to be that 3 the following principles apply.

48. First, for a reasonable belief to be held, objective circumstances must exist to induce the belief in the mind of a reasonable person. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition.

49. Second, the grounds which can reasonably induce an inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

50. Third, the objective circumstances sufficient to show a reason to believe something need to point more clearly than a suspicion. But there is no need for the circumstances to establish on the balance of probabilities that the subject matter in fact occurred or exists.

51. Fourth, sufficient evidence to hold a reasonable belief requires a lesser standard than evidence that is objectively capable of proving the fact beyond reasonable doubt, or on the balance of probabilities.

52. Fifth, although a merits review tribunal may consider additional inquiries that an inspector may have undertaken, an inspector is not required to conduct a full investigation, nor is the inspector required to satisfy themselves to the level of proof of a breach of the Work Health and Safety Act 2011 (NSW).

53. Both parties submitted that those principles applied in this case to the meaning of “reasonably believes” in section 195. That position seems sensible and logical, and I will assume that position to be correct without deciding myself whether that position is strictly correct.

3 As set out in Catholic Healthcare Limited v SafeWork NSW [2025] NSWIRComm 1046 at [28] The factual background

54. On 11 February 2025, the respondent was the principal contractor on a building site on the corner of Wilbow and Easty Streets, Phillip. The site was known as “Woden Greens”.

55. Three residential apartment towers were being constructed at that site, each of approximately 17 stories.

56. On 11 February 2025, Mr Ali Afshar was employed as a concrete patcher by a subcontractor (Junior & Sons) to another subcontractor (Pacific Formwork) which had contracted to the applicant.

57. Mr Afshar had entered the site at about 6am and was working on a recently poured vertical concrete wall filling imperfections in the wall. Whilst doing so he was standing on some horizontal formwork ply (the Platform) which had no edge protection installed to prevent workers from falling off either end.

58. The respondent’s case was that the Platform was not available to be used, and should not have been used, as a platform from which to undertake any work.

59. Whilst on the Platform, and at about 6:40am, Mr Afshar inadvertently stepped backwards to commence filling cracks in the concrete wall and stepped off one end of the Platform, falling approximately 2m to the ground. Mr Afshar suffered some cuts to his head and received first aid treatment.

60. The scene of the accident appears in the photograph which is Annexure A to these reasons, and which was tendered in evidence. Both parties accepted the captions, as being accurate.

61. WorkSafe ACT was notified. Inspectors Fletcher and Woolgar attended the scene at about 1:35pm that day.

62. Inspectors Fletcher and Woolgar interviewed Messrs Hobbs, Agett and Mayer. Messrs Hobbs and Agett were Safety Quality and Environment Supervisors employed by the respondent. Mr Mayer was an employee of Pacific Formwork and had been working with Mr Afshar at the time of the accident.

63. The inspectors were told that column formwork had been hand stripped and workers were to fill imperfections and cracks. This activity had previously been completed in the same way higher up the column.

64. They were told that Messrs Mayer and Afshar were standing on the formwork (captioned “Wooden formwork deck” in the photograph above). Mr Afshar had been on the left-side (as one faced the concrete wall), patching concrete using a trowel whilst Mr Mayer was to his right.

65. The inspectors were told that Mr Afshar had a bucket of mix on the upper scaffold bay and had loaded the trowel and stepped backwards to commence filling cracks when he fell hitting his head.

66. They were told by Mr Mayer that it was normal practice for the formwork to be left in place as a work platform for concrete patching, caulking and painting activities to occur. Mr Mayer told the inspectors that they had done it in other areas on the site, and he intended to do more in the same way but at a higher level in the future.

67. They were told that the area was cordoned off after the incident and scaffolders were directed to check other areas that had similar activity occurring to ensure no gaps existed between the formwork and the scaffold and to install hop up brackets if required to control the fall risk at the ends of the formwork work platforms. Hop up brackets were installed at incident scene after the accident occurred and before inspectors attended the site. They can be seen in the photo above.

68. The inspectors were told that a Safe Work Method Statement (a SWMS) had been submitted to the applicant by Pacific Formwork. That SWMS had been reviewed by the applicant, but the SWMS failed to identify that the controls to be used for working at height were “Platform Ladder or EWP”, neither of which could be used for this patching activity given there was insufficient space available.

69. In short, the Pacific Formwork SWMS did not adequately address the circumstances encountered by Messrs Afshar and Mayer. The applicant’s SWMS, being of a more general nature because of the applicant’s position as head contractor, also did not address the circumstances although, in my view, it was not required to do so because of the specialised work being undertaken at the time.

70. Inspector Fletcher understood from her conversation with either Mr Hobbs or Mr Agett that they had asked the scaffolders to check for other locations on the site where similar risks might have been present.

71. The inspectors inspected the scene, took photographs and viewed closed circuit television footage. When they inspected the scene, they observed the hop up brackets which had been installed post-accident but prior to the inspectors’ arrival. Inspector Fletcher regarded the hop up brackets as an adequate safety measure to prevent further falls from the Platform.

72. Inspector Fletcher then issued a verbal prohibition notice prohibiting the applicant from allowing or directing workers to work from any formwork to conduct patching, painting or any other activities due to inappropriate controls measures have been installed to minimise the risk of falling.

73. The inspectors left the site at about 2:45pm.

74. Inspector Fletcher requested she be provided with the Toolbox Talk held by Precast Projects, the Toolbox Talk held by Hindmarsh Construction, the daily sign in for Messrs Afshar and Mayer, the SWMS for Precast Projects “Working at Heights”, a witness statement from a worker who observed the accident, the applicant’s investigation report once complete, an Incident Report from Precast Projects, any photographs taken relating to the incident and any CCTV footage of the incident which included activities leading up to the incident and post incident (from 6am–8am). All of those materials were subsequently provided.

75. Subsequently, Inspector Fletcher issued a prohibition notice.

Decision

76. In my view the correct and preferable decision was to issue the prohibition notice.

77. As mentioned earlier, the parties agreed that a reasonable belief under section 195 involved objective circumstances, an inclination of the mind towards assenting to, rather than rejecting, a proposition whilst perhaps something to surmise or conjecture, the belief must be more than suspicion but need not establish on the balance of probabilities that the subject matter in fact occurred or exists, a full investigation is not required and sufficient evidence to hold a reasonable belief requires a lesser standard than evidence that is objectively capable of proving the fact on the balance of probabilities.

78. In the present case I am satisfied that the platform was not made available by the applicant to, nor should have been used by, Pacific Formwork and its employees and sub-contractors.

79. Nevertheless, it had been used, and an accident had resulted in the absence of edge protection.

80. At the time the respondent’s inspectors attended the site they were told, without contradiction, by Mr Mayer that he and others had used such platforms before and were intending to use them again. It follows that there was, in the absence of edge protection, a real risk of a similar accident occurring.

81. It is true that scaffolders on site had been directed to inspect other similar areas on the site. There was disagreement whether those scaffolders were directed by the respondent to install edge protection, and whether the scaffolders had installed the hop up brackets at the site of the accident of their own volition.

82. I do not need to decide that factual dispute because after the inspectors were told by Messrs Hobbs and Agett that scaffolders were told to inspect the site for similar dangers, they were never subsequently informed by the respondent what those inspections had revealed and whether edge protection had been installed.

83. In the absence of subsequent confirmation of those matters and placing myself in the shoes of the inspectors at that time, it was reasonable to believe that there existed a possibility of a similar accident occurring. This belief was more than a suspicion, but less than proof on the balance of probabilities, and it was not up to the inspectors to inspect elsewhere nor to make subsequent inquiries as to whether the respondent undertook any remedial action. I note that it was open to the respondent to lead evidence before me that the scaffolders had indeed inspected the balance of the site that day and that any similar dangers elsewhere on the site had been removed that day (or the next few days) but no such evidence was led.

84. There was some evidence led of an email from Mr Hobbs to the respondent dated 28 March 2025 asking that the prohibition notice be “closed out” i.e. removed, because the respondent was using the fall protection shown in the photographs he attached to his email. But that email was sent approximately six weeks after the accident.

85. Given section 195 of the WHSA has a protective purpose, it was reasonable to believe on the date the prohibition notice issued that an activity (being the activity engaged in by Messrs Afshar and Mayer and in the absence of edge protection) may later occur at Woden Green that, if it occurred, would involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard (being the lack of edge protection).

86. Both parties agreed that if I decided that the correct and preferable decision was to issue the prohibition notice, that I should vary the decision so that the prohibition notice ended on 28 March 2025, the date Mr Hobbs provided evidence to the inspectors of fall protection systems being used. I accept that position.

Orders 1. The decision by the respondent to issue the prohibition notice dated 12 February 2025 is varied so that the prohibition notice operated for the period 12 February 2025 to 28 March 2025 only.

……………………………….. Acting Presidential Member G Curtin SC Date(s) of hearing: 10, 11 and 12 November 2025 Counsel for the Applicant: Mr R Coffey Solicitors for the Applicant: Pinsent Masons Counsel for the Respondent: Ms J Cunliffe Solicitors for the Respondent: ACT Government Solicitor Annexure A