Inspector Hamilton v John Holland Pty Ltd and anor

Inspector Hamilton v John Holland Pty Ltd and anor - [2009] NSWIRComm 26 - NSWIRComm 2009 case summary — Zoe

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1 These matters involve challenges brought by way of notices of motion to the Court's jurisdiction to deal with four prosecutions under the Occupational Health and Safety Act 2000 ('NSW OHS Act'). One of the challenges raises a constitutional question involving inconsistency between Commonwealth and State laws. The other concerns the question of whether the prosecutor was authorised to commence the prosecutions on the ground that the site where the alleged offences occurred was a mine, which if that were the case would mean that the prosecutor was not authorised to bring the prosecutions. 2 John Holland Pty Ltd ('first defendant') was part of a joint venture engaged in the construction of the Lane Cove Tunnel that links the Gore Hill Freeway and the M2 Motorway in Sydney. ACN 061 447 621 Pty Ltd (formerly known as Pells Sullivan Meynink Pty Ltd) ('second defendant') was also engaged in the Tunnel's construction, providing various services including geotechnical and geological. 3 On 26 October 2007, Nathan Hamilton, an Inspector employed by the WorkCover Authority of New South Wales commenced prosecutions against the two defendants. It was alleged that both defendants had contravened ss 8(1) and 8(2) of the NSW OHS Act in that from about 27 October 2005 to and including 2 November 2005 "in the MCAA including its intersection with MC5B of the Lane Cove Tunnel" the defendants each failed to ensure the health and safety of employees and other persons. "MCAA" is a reference to the Pacific Highway Exit Ramp Tunnel and "MC5B" is a reference to the Marden Street Ventilation Tunnel. 4 The prosecution of the two defendants arose out of an incident that occurred on 2 November 2005 when it was alleged that employees of Thiess John Holland Joint Venture (of which the first defendant was part), which was contracted to design and construct the Tunnel and associated works, were carrying out excavation works at the junction of MCAA and MC5B. At approximately 1.40 am it was alleged a large section of the Tunnel roof collapsed in the area underneath the junction. The employees working within the Tunnel evacuated the Tunnel as the roof collapsed, thereby escaping injury. 5 Some 13 months after the alleged offences and on 13 December 2006, the first defendant was granted a licence under ss 103 and 104 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ('Cth SRC Act'). The licence was for a fixed period of time. The period was extended until 30 June 2012. The licence remains in force until 30 June 2012 subject to not being suspended or revoked under ss 106 or 107 of the Cth SRC Act. The effect of the operation of the licence is that the first defendant is subject to the rights, liabilities and obligations in the Occupational Health and Safety Act 1991 (Cth) ('Cth OHS Act'). As the prosecutor noted, the first defendant was not subject to those obligations before 13 December 2006. 6 On 13 October 2008, the first defendant filed in this Court notices of motion in respect of the two prosecutions commenced against it. The motions relevantly sought the following declarations and orders: 1. A declaration that this Honourable Court is without jurisdiction to hear or determine these proceedings or purported proceedings against the Defendant.

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(ii) under the control of the same person or entity that has control of the place referred to in subparagraph (i), (f) any place where mining exploration is carried out, Note. See subsection (6). (g) any place where the treatment of zircon, rutile, ilmenite, monazite and associated minerals is carried out, (h) any place where offshore exploration or mining activities within the meaning of the Offshore Minerals Act 1988 are carried out, (i) any place where operations associated with the care, security or maintenance of a place referred to in paragraph (a)-(h), (j) or (k) are carried out during any time when activities or operations at that place are suspended, (j) any place where operations associated with the decommissioning or abandonment of a place referred to in paragraph (a)-(i) are carried out, (k) any place where an activity or operation referred to in paragraph (a)-(j) is or has been carried out, and that is being rehabilitated. 18 The current version of the NSW OHS Act only applied from 1 September 2008. The version of the NSW OHS Act that applied at the time of the incident giving rise to these prosecutions, at the time the prosecutions were initiated, and up until 31 August 2008, provided for the definition of a "mine" as having the same meaning as in the Mines Inspection Act 1901. The Mines Inspection Act in s 4A defined a "mine" as follows: 4A Definition of "mine" (1) In this Act, mine means any aboveground or underground site where any of the following activities take place: (a) exploration for metals and minerals, (b) extraction of metals or minerals. (2) Without limiting subsection (1), mine includes: (a) the treatment of metals or minerals extracted from a site referred to in subsection (1) if the treatment is carried out at a place at, adjoining or near the site, and (b) any machinery, equipment, appliance or plant, whether moveable or not, or any building, laboratory, tunnel, drift, haul road or other structure or work, that is situated at a site referred to in subsection (1) and that is used in connection with an activity referred to in subsection (1), and (c) any place where waste resulting from an activity referred to in subsection (1) is stacked, stored or treated if the place is at, adjoins or is near the site where the activity takes place, and (d) any quarry and any ready mix concrete or bitumen hot mix plant that adjoins, and is in common ownership with, the quarry (whether or not the plant uses material excavated from the quarry in the manufacture of the concrete or bitumen), and (e) any place on which treatment and separation plants are installed for the recovery and treatment of zircon, rutile, ilmenite, monazite and associated minerals, and (f) any part of a site referred to in subsection (1) where environmental rehabilitation is being carried out (irrespective of whether mining operations at the site have been completed), and (g) any abandoned mine (other than an abandoned mine used for the storage, treatment or disposal of waste that is unconnected with an activity referred to in subsection (1)), and (h) any place where operations for the care, security and maintenance of a site referred to in subsection (1) are being carried out during any time when mining operations at the site are suspended, and (i) any place where restoration, decommissioning or abandonment operations of a site referred to in subsection (1) are being carried out. 19 Notably, the Mines Inspection Act defined "metal and mineral" to include "sandstone": see s 4. There was evidence that at the site of the Tunnel and between about October or November 2004 and about the middle of 2006, sandstone and shale "were being removed by a road header and underground dump trucks and removed from the site by road trucks." 20 We note that the Mines Inspection Act was repealed by s 191(a) of the Mine Health and Safety Act 2004 with effect from 1 September 2008. It was in force, however, at times material to the present prosecutions and supplied the definition of a mine for the purposes of the NSW OHS Act prior to 1 September 2008. 21 At times material to the present prosecutions, the NSW OHS Act provided in s 106: 106 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) with the written consent of a Minister of the Crown, or (b) with the written consent of an officer prescribed by the regulations, or (c) by an inspector, or (d) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate. (2) In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by a Minister or a prescribed officer, is evidence of that consent without proof of the signature of the Minister or prescribed officer. 22 Section 4 of the same Act defined "inspector" as "an inspector appointed under Division 1 of Part 5". That Division relevantly provided: 47 Appointment of inspectors (otherwise than in connection with mines or coal workplaces) (1) WorkCover may appoint as inspectors for the purposes of this Act and the regulations any of the following persons: (a) a statutory officer,

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24 The defendants provided comprehensive written submissions. Mr I Neil SC with Ms L Wilson of counsel led the oral submissions for both defendants on the mine issue. Those submissions consisted of three main propositions, which also encapsulated the main points raised in the written submissions: (1) that the prosecutor carried the onus of proving that s 47(2) of the NSW OHS Act did not apply; (2) section 4(1) of the Mines Inspection Act relevantly applied to a site where one or more stipulated activities take place. One of those activities was identified in s 4A(1)(b) of the Mines Inspection Act as the "extraction of … minerals". The context and syntax of s 4A indicated an intention to use the word "site" to describe the whole of the discrete workplace in which a stipulated activity took place, regardless of where or when the stipulated activity happened to take place from time to time. It cannot have been intended that the application of s 4A(1)(b) was to be confined only to those parts of the workplace in which the activity of extracting minerals was actually taking place at a particular time. That being so, the essential nature of a tunnel is that the material through which the tunnel is driven is taken out to create a void. When the material is taken out of the tunnel, it is "extracted" according to the natural and ordinary meaning of the word. The majority of the tunnelling work that took place at the Lane Cove Tunnel Project was through sandstone, which is identified as a mineral in s 4 of the Mines Inspection Act . That is enough to satisfy the requirements of s 4A(1)(b) of the Mines Inspection Act ; and (3) the prosecutor contended that the underground activities of the defendants did not fall within the ordinary or literal meaning of the word "extraction" that made up part of the phrase "extraction of metals or minerals" (as used in the s 4A definition of "mine" of the Mines Inspection Act ) because those activities did not have the object of extraction of, the getting of, the purpose of producing as a product or the purpose of winning any of the substances that made up the Ashfield Shale, Dyke or Hawkesbury Sandstone. However, a purposive element was not an essential requirement of the application of s 4A(1)(b) of the Mines Inspection Act . By its ordinary and natural meaning as it was used in s 4A(1)(b), the word "extraction" is concerned only with the act of taking a mineral out of the ground. Why that was done, or what was done with the mineral thereafter, is extraneous and therefore irrelevant to s 4A(1)(b). Prosecutor's submissions

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(a) the underground activities of the defendants did not fall within the ordinary or literal meaning of the word "extraction" that made up part of the phrase "extraction of metals or minerals" because those activities did not have the object of extraction of, the getting of, the purpose of producing as a product or the purpose of winning any of the substances that made up the Ashfield Shale, Dyke or Hawkesbury Sandstone; (b) the underground activities of the defendants did not fall within the technical, commercial or industry meaning of the word "mine" nor the phrases "extraction of metals or minerals" or "mining operations" as shown by how the activities were contemporaneously described by the designers, constructors and geotechnical professionals connected with the Lane Cove Tunnel Project; (c) the context of the surrounding provisions in the Mines Inspection Act and the background provided by other statutory provisions that formed a scheme of legislation, namely, the Mining Act 1992 (NSW) and Mining Regulation 2003 (NSW), required that the charge place be a "mining operation" or a "mining area", or both, and it was not open to find that the facts fell within the meaning of these expressions; (d) one purpose of the Mines Inspection Amendment Act 1998 that introduced the s 4A definition of "mine" was to widen the definition if events were caused by mining operations or arose out of a mining area, however, the charge place was not such a site; and (e) the operation of the statutory provisions contended for by the defendants is "absurd", "extraordinary", "capricious", "irrational" or "obscure". Putting it another way, the inconvenience or improbability of the result is against the defendants. 26 Furthermore, noting the gaps in the evidentiary material that had been filed and served by the defendants, the prosecutor contended that neither Ashfield Shale nor the Dyke that were excavated during the charge period at the charge place fell within the definition of "metal and mineral" in s 4(1) of the Mines Inspection Act. 27 The prosecutor also submitted that it was for the defendants to satisfy the Court in respect of their motions that the relevant place in the charges was a mine. They had not done so. That is to say, the defendants had an evidentiary onus, which had not been discharged: see DPP (Cth) v Jeffrey (1992) 58 A Crim R 310 at 313; Purkess v Crittenden (1965) 114 CLR 164 at 168, 171; Blatch v Archer (1774) 1 Cowp 64 at 65; 98 ER 969 at 970. CONSIDERATION OF MINES ISSUE

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28 There was no difference between the parties that if the place alleged in each Application for Order was a mine, the prosecutor was not authorised to institute proceedings against the defendants under the NSW OHS Act as it applied at the relevant time. This is because the prosecutor was appointed as an inspector by the WorkCover Authority pursuant to s 47(1) of the NSW OHS Act and by virtue of s 47(2) was not authorised to exercise functions under that Act in relation to a mine. One of the functions of an inspector was to institute proceedings for an offence against the Act: s 106. 29 The central question to be decided in this case, therefore, is whether the definition of "mine" in the NSW OHS Act at the relevant time - a definition imported from the Mines Inspection Act - means that the place that is the subject of the charges was a mine. Whether the place was a mine is to be determined in accordance with the relevant principles that apply to statutory interpretation. In that regard, the defendants placed particular reliance on the terms of s 4A(1)(b) of the Mines Inspection Act, which provides that "…mine means any aboveground or underground site where any of the following activities take place … (b) extraction of metals or minerals." It was submitted that because the activity of extracting sandstone (defined as a mineral) took place at the site ("site" to be regarded as the project site and not confined to the precise location where the collapse occurred) it necessarily followed that the site was a mine. It was submitted that the purpose of the activity of extracting the sandstone was irrelevant; all that needed to happen in order for the site to be regarded as a mine for the purposes of the NSW OHS Act was the activity. The statutory definition of "mine", it was submitted, was clear and unambiguous and displaced any technical, commercial or industry meaning of that expression. Rules of statutory construction 30 The rules of statutory construction allow the courts to avoid an irrational or absurd result of a particular interpretation unless the language of the provision in question is intractable or where, although the language is not intractable, the operation of the provision, read literally, is such as to indicate that it could not have been intended by the draughtsperson: Lennard v Jessica Estates Pty Limited [2008] NSWCA 121; (2008) 159 LGERA 420 per Tobias JA at [52], citing Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 per Mason and Wilson JJ at 321 where their Honours said:

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On the other hand, when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended. 31 In Lennard, Tobias JA also referred with approval to R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681. In that case, Spigelman CJ observed (at 687 [13]-[15]): [13] The contemporary approach to construction is well described as 'literal in total context' (E Dreidger Construction of Statutes (2nd ed, 1983) p2). See eg CIC Insurances Ltd v Bankstown Football Club Ltd (1995-97) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490; 72 ALJR 841 at [69]. The courts no longer "make a fortress out of the dictionary" ( Cabell v Markham 148 F2d 737 (1945) at 739 per Learned Hand J. [14] Putting to one side obvious typographical errors (see Bennion Statutory Interpretation (3rd ed, 1997) pp675-677), the court supplies words "omitted" by the draftsperson only in the sense that the words so included reflect in express, and therefore more readily observable, form, the true construction of the words actually used. In my opinion, the authorities do not warrant the court supplying words "omitted" by inadvertence per se. [15] Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed. ( McAlister (1990) 169 CLR 324 at 330; R v Di Maria (1996) 67 SASR 466 at 472-474). If a court can construe the words actually used by the Parliament to carry into effect the Parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the Court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction. "Extraction"

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35 The Hawkesbury sandstone formation is the surface bedrock in the centre of the Greater Sydney Basin. Most of the city of Sydney lies on Hawkesbury sandstone. It is not surprising, therefore, that most of the tunnelling for the Lane Cove Tunnel was through Hawkesbury sandstone. The construction placed on the word "extraction" by the defendants would mean that any activity involving the extraction of sandstone in the Sydney region, regardless of the purpose of the extraction, would necessarily be a mine, thereby attracting all of the statutory requirements of the Mines Inspection Act. In that regard it might be noted, for example, that s 7(1) of the Mines Inspection Act provided: (1) The Minister shall grant a certificate of competency as production manager to every applicant who is duly reported by the board of examiners to have passed the examination satisfactorily, and to have given satisfactory evidence of the applicant's sobriety, qualifications, experience, ability, and general good conduct, and that the applicant has had practical experience in a mine for at least three years. 36 The consequence of the defendants' position would be that the extraction of sandstone for the purpose of laying a foundation for a house or other building or creating a pathway, garden or backyard swimming pool, would cause that site to be a mine requiring, inter alia, a production manager to be appointed who satisfied the special requirements of s 7(1) of the Mines Inspection Act. In cases where s 41 of the Mines Inspection Act applied, it would also require "an accurate plan of the proposed workings of the mine to be prepared in accordance with [s 41] by: (a) a qualified mining engineer, or (b) a production manager, or (c) a registered mining surveyor". We do not believe any of this could have been the intention. Context 37 Section 4A(1)(b) of the Mines Inspection Act referred to the activity of "extraction of metals or minerals." But that has to be seen in the context of a statute that dealt with mines and the mining of metals or minerals. The long title of the Mines Inspection Act was "An Act to make better provision for the regulation and inspection of mines other than coal and shale mines; to regulate the treatment of the products of such mines; and for purposes incidental to or consequent on those objects." Another aspect of the context are the provisions of s 4A(2) which, whilst expanding the ordinary meaning of the word "mine", concern activities that are either associated with a mine, a mining process or the extraction of metal or minerals (we deal separately with the matter of a quarry below). Likewise, the elaborate system of regulation in the Mines Inspection Act colours the word "extraction" in s 4A(1)(b) so as to limit the word, on a purposive construction, to activities associated with mining as contemplated in the Act - extraction for the purpose of mining metals and minerals. So the Act was concerned, inter alia, with the regulation and inspection of mines where the activity was the extraction of metals or minerals other than coal or shale. 38 Thus, it may reasonably be expected that the owner of an operating mine subject to the provisions of the Mining Inspection Act would be engaged in mining for metals or minerals. That is to say, the owner of a mine would be engaged in the activity of mining for the purpose of extracting metals or minerals - "mining in the sense of sinking a shaft and tunnelling in pursuit of a desired substance": NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 513 per Kitto J. It is clearly the case on the evidence that the defendants were not engaged on the Lane Cove Tunnel Project for the purpose of extracting sandstone, but rather for the purpose of constructing a tunnel to build a roadway. In our opinion, the defendants were engaged in civil engineering works, that is, the excavation of, or tunnelling through, sandstone for the purpose of building a roadway. The removal of sandstone was merely a necessary incident of creating a tunnel in which to construct the underground roadway. 39 In Blue-Metal Quarries the majority (Dixon CJ, Williams and Taylor JJ) remarked at 524: "No one speaks of a bluestone mine. The phrase would sound odd and incongruous." The same, we think, can be said of a "sandstone mine", the extraction of sandstone being usually associated with quarrying. Whilst the extended definition of "mine" in the Mines Inspection Act included a quarry, "quarry" was defined in that Act as meaning: any place, open cut, or excavation wherein or whereby any operation is carried on above ground for or in connection with the purpose of obtaining any metal or mineral other than coal or shale and any place adjoining thereto on which any product of the quarry is stacked, stored or treated (our emphasis).

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It is therefore proposed to create a class of mine manager, called general managers, who will have the responsibility for daily supervision, control and management at their mines. General managers need not have mining qualifications. However, if they do not and the mine employs more than 20 people, they must appoint a person with those qualifications to supervise production in their mines. 50 ILO Convention No. 176, Safety and Health in Mines Convention, 1995 relevantly provides: Article 1 1. For the purpose of this Convention, the term mine covers - (a) surface or underground sites where the following activities, in particular, take place: (i) exploration for minerals, excluding oil and gas, that involves the mechanical disturbance of the ground; (ii) extraction of minerals, excluding oil and gas; (iii) preparation, including crushing, grinding, concentration or washing of the extracted material; and (b) all machinery, equipment, appliances, plant, buildings and civil engineering structures used in conjunction with the activities referred to in (a) above. 51 The similarity between Article 1(a) of the ILO Convention and the definition of mine at s 4A(i) inserted into the Mines Inspection Act in 1998 is obvious. Also obvious is Parliament's intention to widen the definitions of "mine" and "treatment" to bring certain sites under the jurisdiction of the mines inspectorate, and to give mines inspectors jurisdiction over certain events that occurred outside mines if mining operations caused them. 52 There was nothing in the second reading speech to suggest it was Parliament's intention in amending the Mines Inspection Act in 1998 that any activity involving the extraction of minerals, regardless of the purpose of the extraction (eg, removal of spoil containing sandstone in order to build a car park), was to be regarded as a mine. Such a broadening of the definition from what previously applied would have had very significant implications for, amongst others, the civil engineering industry, yet nothing was said in the second reading speech about such implications. Mine Health and Safety Act - definition of mine 53 The definition of mine in the NSW OHS Act, as supplied by the Mines Inspection Act, continued to apply until 1 September 2008 when the Mines Inspection Act was repealed by the Mine Health and Safety Act 2004. At the same time, the NSW OHS Act was amended by the Mine Health and Safety Act. The amendments replaced the definition of mine in s 4 of the NSW OHS Act as follows: mining workplace means a place of work:

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