Laing v Carroll

14 By letter dated 10 June 2003, solicitors acting for the State, (Holding Redlich) wrote to the applicant advising him that the VGPG:

· was undertaking a review of the matter and had decided to invite Able to submit a tender; and

· proposed to appoint a Probity Auditor to oversee and scrutinise the tender process and the selection of the successful tenderer.

15 By letter dated 23 July 2003, CMR invited Able to tender for the project. 16 As at 5 August 2003, the applicant suspected that the initial decision of VGPG to exclude Able from the tendering process might constitute a breach of s 298(K)(2)(d) of the Act. He decided that, pursuant to s 83BH(4)(d) of the Act, he would require Mr Howell to produce documents to him. 17 On 5 August 2003, the applicant prepared a document entitled, "Notice Pursuant to Section 83BH(4)(d) Workplace Relations Act 1996." It was addressed to "Mr John Howell, Victorian Government Property Group, Commercial Division, Department of Treasury and Finance, Level 5, 1 Treasury Place …" 18 The 5 August 2003 notice provided as follows: "Dear Mr Howell Notice to Produce Documents - NPAO 01/0033 I, William Laing, am an authorised officer under s.83BG of the Workplace Relations Act 1996 ("the Act"). I am investigating possible breaches of Part XA of the Act. Pursuant to s.83BH of the Act, for purpose of ascertaining compliance of Part XA and other provisions of the Act as prescribed by the Workplace Relations Regulations I am empowered to require persons who have custody or access to documents relevant to that purpose to produce the said documents to me. Pursuant to s.83BH(4)(d) of the Act I require you being a person who has custody of or access to documents relevant to the purpose referred to above to produce to me at the above address by 4 pm, 19 August 2003, the following documents, namely all documents: A) commonly described as or known as a: (1) registration of interest or an expression of interest to provide the Services; (2) invitation to tender to provide the Services; or (3) tender to provide the Services. B) relating or concerning or used or proposed to be used in the: (1) assessment of any registration or expression of interest to provide the Services; (2) selection or non selection, including proposed selection or non selection, of any contractor to be invited to tender to provide the Services; and (3) selection or non selection, including proposed selection or non selection, of any tender to provide the Services, such documents to include but are not limited to documents issued by the Government or CMR Consultants (Australia) Pty Ltd or any related corporate body thereof in the nature of instructions, advice, policy, criteria or guidelines including the documents used in the development or creation thereof. C) concerning or relating to Able Demolitions and Excavations Pty Ltd and: (1) its status under the Demolition Contractor's Pre qualification scheme, howsoever described; (2) the provision of: (a) the Services; (b) demolition works and asbestos removal services on or in connection with any worksite to I May 2003 in the State of Victoria; or (3) discussions between the State's officers and/or agents regarding its performance on any past project, such documents to include but are not limited to communications within the Government. D) comprising, recording or disclosing any contact or dealing between the Government and: (i) the Latrobe Valley Ministerial Taskforce howsoever described; (ii) CMR Consultants (Australia) Pty Ltd or any related corporate body thereof; or (iii) any industrial association, concerning or relating to: (1) any registration of interest or expression of interest to provide the Services including but not limited to any assessment thereof; (2) the selection or non selection of any contractor to be invited to tender to provide the Services; (3) the selection or non selection including the proposed selection or non selection of any tender to provide the Services; (4) any instruction, advice, policy, criteria or guidelines, including the documents used in the development or creation thereof, concerning or relating to: (a) any registration of interest or expression of interest to provide the Services including but not limited to any assessment thereof; (b) the selection or non selection, including proposed selection or non selection, of any contractor to be invited to tender to provide the Services; and (c) the selection or non selection, including proposed selection or non selection, of any tender to provide the Services; or (5) Able Demolitions and Excavations Pty Ltd. E) prepared by, or provided to any person or the Government for the purpose of: (1) assisting in the decision as to who would be invited to tender for the Services; or (2) briefing any person or the Government including but not limited to any Minister, in relation to the decision taken as to who should be invited to tender for the Services. F) for the period up to and including 23 April 2003. Note:

For the purposes of this Notice, the term:

1. "document" includes: (a) any paper or other material on which there is writing; (b) any paper or other material on which there are marks, figure, symbols or perforations having a meaning for persons qualified to interpret them. (c) any article or material or record of information from which sounds, images or writings are capable of being reproduced; and (d) any letter, facsimile, memorandum, file note, briefing note, telephone note, discussion note, diary, industrial instrument, recommendation, advice, report, circular, agenda, minutes, review, appraisal, form, notebook, journal, message slip, receipt, ledger, payment slip, invoice or account; and (e) any map, plan, drawing or photograph.
2. "person" includes but is not limited to: (a) a natural person; (b) a body corporate including an incorporated association or society, (c) an unincorporated body including an unincorporated association or society; (d) a currently or previously registered organisation of employers or employees under any law of the Commonwealth or State; (e) a trust and in relation to a trust, one or more or all of those trustees together; (f) a partnership and in relation to a partnership, one or more or all of the partners together; (g) a joint venture and in relation to a joint venture, one or more or all of the joint venturers; and (h) an alliance, and in relation to an alliance, one or more or all of the alliance members or participants (howsoever described). 3) "industrial association" has the same meaning as "industrial association" in s.298B of the Workplace Relations Act and includes: (a) any branch of an organisation; (b) any official, officer, employee, member, representative or agent of the organisation or any branch of the organisation; (c) the Victorian Employers' Chamber of Commerce and Industry; (d) the Australian Mines and Metals Association (Inc); (e) the Master Builders Association of Victoria; (f) the Australian Industry Group; or (g) the Australian Constructors Association. 4) "related body corporate" has the same meaning as "related body corporate" in s.9 of the Corporations Act, 2001 (Commonwealth). 5) "the Site" means the Lurgi Gas Works, Melbourne, Victoria howsoever described. 6) "the Services" means the provision of demolition works at the Site and the removal of asbestos from the Site. 7) "the Government" means the Government of the State of Victoria and includes any agent, agency, department, officer or office and includes any Minister. Production of documents must be of originals. Copies may only be produced of originals that have been destroyed. A person who contravenes the requirement to produce documents pursuant to section 83BH(4)(d) may be served with a notice to produce documents pursuant to section 83BH(5) of the Act. Failure to comply with this Notice without reasonable excuse may be in contravention of s305A of the Workplace Relations Act 1996 (Cth). Penalty is 6 months imprisonment.

Yours sincerely William Laing Investigator, Interim Building Industry Task Force Department of Employment and Workplace Relations (Cth) An Authorised Officer pursuant to section 83BG of the Workplace Relations Act 1996. It is a serious offence to knowingly provide false or misleading documents in response to this Notice to Produce: Section 137.2. The Criminal Code Act 1995 (Commonwealth) Penalty: Imprisonment for 12 months."

19 By letter dated 25 August 2003, Mr David Shaw of Holding Redlich wrote to the applicant, seeking that he reconsider his decision "to continue to investigate this matter." Mr Shaw stated that: "Our client submits that it is neither reasonable nor appropriate for you to continue to investigate alleged acts that have now been entirely overtaken by events. Moreover, it is not conducive to the orderly conduct of the recommended tender process that your office is now intending to investigate an earlier aspect of the tender. We note that your investigation concerns the previous treatment of the company that is to be one of several companies on the tender invitation list for the recommended tender process. We are instructed to advise that the State will not be complying with the notice and will strenuously defend any attempt by you or your office to act upon or enforce the notice."

20 On 11 September 2003, the applicant prepared a second notice directed to Mr Howell, in almost identical terms to the 5 August 2003 notice. It required the documents referred to in the notice to be produced to the applicant by 25 September 2003. On 17 September 2003 the applicant left the second notice at VGPG's mail centre at Treasury Place for delivery to Mr Howell. 21 By letter dated 24 September 2003, Mr Shaw requested that the applicant grant Mr Howell a 14 day extension to enable advice to be given to Mr Howell regarding compliance with the notice. The applicant agreed to an extension of the date for compliance to 9 October 2003. 22 On 8 October 2003, Mr Shaw wrote to the applicant in the following terms: "Dear Mr Laing Morwell Gasworks Remediation Project We refer to previous correspondence in relation to the Notice dated 11 September 2003 addressed to John Howell of the Victorian Government Property Group (VGPG) purporting to require him to produce documents under section 83BH of the Workplace Relations Act 1996 (Notice NPAO 01/0069) (the Notice). We are instructed to contest the validity of the Notice. However, we are also instructed that, as a result of changes made to the roles of various persons within the VGPG, Peter Carroll is now (and will for the foreseeable future remain) the Project Director for the Morwell Gasworks Remediation Project in place of Mr Howell. In this capacity, Mr Carroll is now the person within the VGPG responsible for any documents held by the VGPG which may fall within the scope of the Notice. Mr Carroll has "the custody of, or access to" such documents within the meaning of section 83BH(4)(d) of the Workplace Relations Act. We do not concede that Mr Howell has or had, at the time the Notice was issued, such custody or access. In these circumstances, we suggest that Mr Carroll is the appropriate person to whom any requirement to produce documents of the kind described in the Notice should be directed. Accordingly, we request that you formally withdraw the Notice directed to Mr Howell and invite you instead to direct a fresh Notice in the same terms to Mr Carroll. We anticipate that we would be instructed to contest the validity of any such fresh Notice, but not on the ground that Mr Carroll lacked relevant custody or access. In view of the time constraints contained in the Notice, we ask that you indicate the course you propose by 1.00 pm tomorrow or undertake to take no action to enforce the Notice for a period of 7 days pending your further consideration of this matter. Yours sincerely HOLDING REDLICH"

23 On 9 October 2003, the applicant responded to Mr Shaw in the following terms: "Dear Mr Shaw

Morwell Gasworks Remediation Project - Notice NPAO 01/0069

I refer to your faxed letter of 8 October 2003 in response to Notice NPAO 01/0069 directed to Mr John Howell. I am considering your request and in order to do so, would you please advise me of the following: · The date upon which you contend Mr Howell ceased to be the person responsible for any documents held by the VGPG which may fall within the scope of the Notice; · The date upon which you contend Mr Carroll became the person responsible for any documents held by the VGPG which may fall within the scope of the Notice; and · Whether the VGPG would present Mr Carroll at the VGPG office to accept service of a s83BH(4)(d) Notice tomorrow at a time nominated by myself. I ask that a response be faxed to my office by 5.00 pm today. Yours sincerely W Laing Investigator, Interim Building Industry Taskforce Department of Employment and Workplace Relations (Cth)"

24 Later on 9 October 2003, Mr Shaw sent the following letter by facsimile transmission to the applicant: "Dear Mr Laing

Morwell Gasworks Remediation Project - Notice NPAO 01/0069

We refer to correspondence in relation to Notice NPAO 01/0069 and, in particular, your letter dated 9 October 2003. You will recall that in our letter of 24 September 2003, we requested an extension of time to obtain further instructions in relation to your Notice. In the course of obtaining these instructions, we were told that Mr Howell had ceased to be the person responsible for the documents and that Mr Carroll had become the person responsible for the documents. We advise that Mr Carroll can be available between 10 a.m. and 12 noon tomorrow to meet with you at a specific time convenient to you. Mr Carroll will meet with you at the Security Desk and, in accordance with normal procedure, accompany you to the mail room so that any document you may wish to give him can go through the screening process. Of course, this arrangement is subject to your agreement to withdraw the notice addressed to Mr Howell. In the absence of your agreement to that effect, we ask that you undertake by return facsimile not to take any action to enforce Notice NPAO 01/0069 without 7 days' prior notice to us. In the absence of this undertaking, we will be forced to issue proceedings in the Federal Court challenging the validity of the Notice and injuncting you from taking action to enforce it. Yours sincerely HOLDING REDLICH"

25 The applicant responded with a facsimile transmission later on 9 October 2003, in the following way: "Dear Mr Shaw

Morwell Gasworks Remediation Project - Notice NPAO 01/0069

I refer to your letter of 9 October 2003 in response to my letter of same date in relation to the above notice. The purpose of this letter is to advise you that I have decided not to enforce Notice NPAO 01/0069. I will serve a new s83BH(4)(d) Notice on Mr Peter Carroll at 11.30 tomorrow morning. Would you please advise Mr Carroll of this arrangement. Following the service of the Notice, I will fax a copy of the Notice to your office. Yours sincerely W Laing Investigator, Interim Building Industry Taskforce Department of Employment and Workplace Relations (Cth)" 26 On 10 October 2003, the applicant attended at the VGPG's offices at 1 Treasury Place, Melbourne. He met the respondent at the security desk. He identified himself as an authorised person and told him that he required him to produce documents contained in a notice addressed to the respondent. He showed the respondent that notice. He told the respondent that the notice contained the details of the documents he was seeking. The respondent requested that the applicant hand him a copy of the notice outside the building because of the security policy of VGPG. The parties then stepped outside the building. The applicant then gave the respondent the notice, which was in identical terms to the second notice given to Mr Howell, that is, materially identical to the first notice given to Mr Howell which is set out at [18] above. 27 By letter dated 17 October 2003, sent by facsimile transmission at 12.17 pm, Mr Shaw informed the applicant as follows: "Dear Mr Laing

Morwell Gasworks Remediation Project - Notice NPAO 01/0083

We refer to Notice NPAO 01/0083 which you provided to Mr Peter Carroll on 10 October 2003. We confirm our instructions in respect of previous similar notices, to the effect that the State submits that you do not have power under section 83BH(4)(d) of the Workplace Relations Act 1996 ("the Act") to require production of the documents described in the notice. As you are aware, the State has invited Able Demolitions and Excavations Pty Ltd ("Able") to submit a tender for the demolition works defined in the notice as "the Services". In these circumstances, it is plain that the provisions of Part XA of the Act "have been complied with" within the meaning of section 83BH(1)(b). The powers in section 83BH may be exercised for the purpose of "ascertaining whether" provisions of Part XA have been complied with, not for the purpose of confirming that fact. Nor are the powers available to ascertain whether the provisions had, at an earlier time, been complied with (although the State maintains that they were, in any event, so complied with). We also draw your attention to section 6 of the Act and note that the State cannot be prosecuted for an offence against the Act. The same result applies in respect of civil penalties for contraventions of the Act. It follows from this that the coercive powers found in section 83BH cannot be used in order to investigate compliance by the State with the Act. The powers are intended to be used for the purpose of investigating contraventions which might be the subject of enforcement action and to lay the foundation for such action where appropriate. They are not available to be exercised for some other purpose. It is a further consequence of the limited application of the Act to the State that a notice cannot be enforced against an agent or employee of the State in respect of alleged non-compliance by the State with the Act. In addition, and in any event, the notice would be too wide and oppressive even if it had been issued for an authorised purpose. We refer in particular to paragraphs (C)(2)(b), (C)(3) or (D)(5), which seek broad classes of documents not defined by reference to the question whether provisions of Part XA of the Act have been complied with in relation to the pre-tender process concerning the Services as defined. We therefore ask you, as previously, to withdraw Notice NPAO 01/0083 and not issue any further notice in respect of this matter. In the absence of your agreement to that effect, we ask that you undertake not to take any action to enforce that notice without 7 days' prior notice to us. In view of the notice requiring a response from our client at 4.00 pm this afternoon, we seek your immediate response. In the absence of this undertaking, we will be forced to issue proceedings in the Federal Court challenging the validity of the notice, enjoining you from taking action to enforce it and seeking costs. Yours sincerely HOLDING REDLICH" 28 The applicant obtained legal advice regarding the matters raised in Mr Shaw's letter and decided that no reasonable excuse had been given for failing to produce the documents referred to in the 11 October 2003 notice. He sought and received approval from the Director of the Taskforce to commence this proceeding. 29 Meanwhile, Mr Shaw attempted to seek an undertaking that compliance with the notice would not be sought pending the resolution of legal issues related to it in an appropriate court. Mr Shaw informed Ms Twigg of the Taskforce that if the applicant did not give the undertaking he sought, the respondent and the State were prepared to go to court that afternoon. No indication was given by Ms Twigg that the applicant intended to issue this proceeding. 30 At about 4 pm on 17 October 2003, Mr Shaw spoke to Mr Rawson of the Australian Government Solicitor's office who told him that the applicant would shortly be issuing a proceeding seeking a declaration that the respondent comply with the notice, but that compliance with the notice would not be pressed whilst the proceeding was pending. 31 On 15 December 2003, CMR accepted Able's tender. Able entered into possession of the Morwell site on 19 January 2004.

The statutory context 32 Section 83BH of the Act, so far as is material, provides: "(1) An authorised officer may exercise powers under this section for the following purposes (compliance purposes):

(a) for the purpose of ascertaining whether the terms of an AWA have been complied with, or are being complied with;

(b) for the purpose of ascertaining whether the provisions of Part VID or Part XA have been complied with, or are being complied with;

(c) for the purpose of ascertaining whether other provisions of this Act that are prescribed by the regulations have been complied with, or are being complied with.

(2) The powers may be exercised at any time during ordinary working hours or at any other time at which it is necessary to do so for compliance purposes.

(3) An authorised officer may, without force, enter:

(a) a place of business in which the authorised officer has reasonable cause to believe that work to which an AWA applies is being performed or has been performed; or

(b) a place of business in which the authorised officer has reasonable cause to believe that there are documents relevant to compliance purposes; or

(c) a place of business in which the authorised officer has reasonable cause to believe that a breach of Part VID (AWAs) or Part XA (freedom of association) has occurred, is occurring or is likely to occur.

(4) An authorised officer may do any of the following in a place referred to in subsection (3):

(a) inspect any work, material, machinery, appliance, article or facility;

(b)as prescribed by the regulations, take samples of any goods or substances;

(d)require a person who has the custody of, or access to, a document to produce the document to the authorised officer within a specified period.

(5) If a person fails to comply with a requirement under subsection (4) to produce a document, an authorised officer may, by written notice served on the person, require the person to produce the document at a specified place within a specified period (not being less than 14 days)." 33 Section 305A provides: "(1) A person is guilty of an offence if the person contravenes a requirement made by an authorised officer under paragraph 83BH(4)(d) or subsection 83BH(5). Penalty: Imprisonment for 6 months. (2) Subsection (1) does not apply if the person has a reasonable excuse." 34 Section 6 provides: "(1) This Act binds the Crown in each of its capacities. (2) However, this Act does not make the Crown liable to be prosecuted for an offence." 35 Section 298K(2)(d) provides that: "A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(d) refuse to engage another person as an independent contractor." 36 Section 298L(1)(h), so far as is material, provides that: "Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because…the independent contractor…concerned:

(h) is entitled to the benefit of an industrial instrument or an order of an industrial body." 37 Industrial instrument is defined in s 298B to mean: "…an award or agreement, however designated, that:

(a) is made under or recognised by an industrial law; and

(b) concerns the relationship between an employer and the employer's employees, or provides for the prevention or settlement of a dispute between an employer and the employer's employees."

Can s 83BH(4)(d) be enforced in respect of State documents or at all by declaration? 38 The documents sought by the applicant are held by the respondent in his capacity as an employee of the State. The only provision in the Act which deals with the failure to comply with a requirement made under s 83BH(4)(d) is s 305A(1). Section 305A(1) creates a criminal offence for contravention of a requirement made by an authorised officer under s 83BH(4)(d) or s 83BH(5). As a consequence of s 6(2), a State, and State employees, through whom a State acts, cannot be prosecuted under s 305A(1). 39 Counsel for the respondent submitted that s 83BH does not create an obligation to comply with a requirement under sub-section 4(d) thereof. They contended that paragraph (d) does not create the obligation, the existence of which the applicant seeks to have declared. That is so, they submitted, irrespective of the fact that the respondent represents the State. 40 Counsel for the applicant submitted that where power is exercised under s 83BH(4)(d) and a requirement is made to produce documents, a failure to comply constitutes a contravention of the requirement. They referred, in that context, to s 22(1)(j) of the Acts Interpretation Act 1901 (Cth) which confirms that a failure to comply constitutes a contravention. Accordingly, so the argument ran, a declaration of non-compliance can be made, in such circumstances, by a court. 41 If the respondent has failed to comply with a requirement made by the applicant that may constitute a breach of the Act and, in an appropriate case, the applicant would be entitled to sue for a declaration that the respondent has breached the Act: see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 393 (per McHugh, Gummow, Kirby and Hayne JJ). 42 However, counsel for the respondent submitted that s 305A is the only provision in the Act that deals with the consequences of a failure to comply with s 83BH(4)(d) and that s 305A must be considered when identifying the intended scope of s 83BH(4)(d). Yet counsel agreed that the question whether s 83BH(4)(d) created an obligation to comply with its terms was a separate question from whether a person who fails to comply with a requirement made under it can be prosecuted under s 305A. 43 Counsel for the applicant submitted that s 305A was not a provision designed to ensure compliance with s 83BH(4)(d). It is still possible that compliance with a requirement not occur, notwithstanding a successful prosecution under s 305A, followed by a custodial sentence or a fine.

44 When the provisions of s 83BH(4)(d), s 83BH(5) and s 305A are read together, they disclose a statutory scheme which has the following steps:

· the making of a requirement to produce documents and/or

· the issuing of a notice for the production of documents, followed by

· a right to prosecute designed to ensure that the requirement and/or the notice is complied with. 45 In the ordinary course one would prosecute, or threaten to prosecute, a person who defied a requirement under s 83BH(4)(d) in order to encourage compliance. That does not deny the availability of the remedy of a declaration but calls into question whether, as a matter of discretion, that relief should be granted where the legislation provides what is, in effect, a statutory enforcement mechanism. 46 Counsel for the respondent submitted that the provisions of s 6 of the Act showed that the applicant was unable to prosecute the respondent under s 305A and that a requirement which cannot be enforced under s 305A is not otherwise enforceable. They contended that the Act, when ss 6, 83BH and 305A were read together, did not intend that a requirement made of a State under s 83BH(4)(d) be enforceable. 47 If s 83BH(4)(d) was not intended to be applicable to a State, and no requirement under it could be made of a State, the section itself would have so provided. There is no reason why it is not possible for declaratory belief to be granted in respect of a State's refusal to comply with a requirement. It is a totally different question whether, in the exercise of the Court's discretion, it should grant declaratory relief if to do so would be to permit the applicant to achieve by way of declaration that which he could not achieve by way of prosecution or threatened prosecution. 48 The jurisdiction of this Court to grant declaratory relief is wide: see s 21 of the Federal Court of Australia Act 1976 (Cth). That section provides that: "(1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. (2) A suit is not open to objection on the ground that a declaratory order only is sought." 49 In McLeish v Faure (1979) 40 FLR 462 at 473-474, a Full Court of this Court (J B Sweeney, Evatt and Northrop JJ) described the power contained in s 21 as being "conferred in permissive terms" and noted that the court "has a discretion whether to exercise the power." In McLeish, the Full Court determined that a declaration could be granted under s 21 notwithstanding that s 140(5) of the Conciliation and Arbitration Act 1904 (Cth) denied the grant of consequential relief in the nature of a declaration and that that Act was central to the Court's deliberations. 50 As the learned authors of Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4th ed) said at para [19-090], in reference to abundant citations: "…no statute should be interpreted as ousting the court's declaratory jurisdiction unless it does so in the clearest possible terms." 51 However at [19-105], the learned authors recognised that a limitation on a court's jurisdiction to make declarations may arise by necessary implication. Is such a limitation to be applied in the instant circumstances or is the true question to be considered, whether this Court should exercise its discretion to refrain from granting a declaration? 52 In Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421 at 435-436 Gibbs J said: "The jurisdiction to make a declaration is a very wide one. Indeed, it has been said that, "under O.XXV, r. 5, the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion": Hanson v. Radcliffe Urban District Council (4); and see Barnard v. National Dock Labour Board (5); and Ibeneweka v. Egbuna (6). However, the jurisdiction may be ousted by statute, although the right of a subject to apply to the court for a determination of his rights will not be held to be excluded except by clear words: Pyx Granite Co. Ltd. v Ministry of Housing and Local Government (1)." 53 After considering various provisions in the relevant legislation and authorities dealing with the appropriate relief, Gibbs J said at 437: "There is nothing in the provisions considered in those cases that indicates a clear intention to exclude the power of the court to make a declaratory order. The Act does not provide a specific remedy to which the holder of an exploration license who seeks to establish the rights which it gives him is bound to resort." 54 The respondent's submissions to the effect that the application is fundamentally flawed or misconceived are rejected. The Act does not make it clear that the Court's declaratory jurisdiction is ousted in respect of s 83BH(4)(d). However, that is not to deny the possibility that the terms of ss 6, 83BH and 305A, when read together, might show that the Court should exercise its discretion to refrain from granting a declaration, especially in circumstances where the Act provides a mechanism designed to ensure compliance with s 83BH(4)(d) and (5).

55 The applicant seeks to achieve by way of declaratory relief that which he is incapable of achieving, or encouraging the achievement of, by way of prosecution or threatened prosecution. He is effectively engaging in "an attempt to do indirectly or by the back-door what cannot be done directly": see Australian Building Construction Employees' and Builders Labourer's Federation v Master Builders Association of New South Wales (1986) 69 ALR 515 at 525 per Beaumont J. The Act provides an inbuilt mechanism for the enforcement of s 83BH(4)(d) and (5). Granting declaratory relief in the instant circumstances would enable the applicant to side step that mechanism, and, as is later developed at [65], deny the respondent the chance to claim that he had a reasonable excuse not to produce the documents, when he was required by the applicant to do so.

56 The above consideration is a sufficient basis for the Court to refuse, in the exercise of its discretion, to grant the relief sought in the application. A further discretionary consideration against the grant of relief is developed below under the heading "the notice point". It, as will be shown, is a further independent basis for the refusal of the grant of a declaration in this case. Together the two considerations provide a very strong basis for the Court to refuse to grant a declaration in this matter.

The notice point 57 The applicant chose to require the respondent to produce documents in accordance with a notice. There is no necessity for a requirement under s 83BH(4)(d) to be made by way of a notice. Section 83BH(5) contemplates the use of a notice by an authorised person where there has been a failure to produce documents required under s 83BH(4)(d). However, there is nothing to prevent an authorised person making a requirement by way of a notice. 58 When a notice is used to make a requirement it will not be effective to do so unless, on its face, it can be seen to be within the power of the authorised person to seek the documents contained in the notice; see Thorson v Pine [2004] FCA 1316. 59 Counsel for the applicant submitted that the notice given by the authorised person to the respondent must be considered in the context of the history of their client's investigation, which included the service of a notice, in materially identical form, on the respondent's predecessor and correspondence with Mr Shaw (the State's solicitor) about related issues. 60 Further, they contended that a brief conversation, outside 1 Treasury Place, between the parties in which the applicant told the respondent that he required the documents contained in the notice be produced to him, must be considered in determining the validity of the applicant's requirement under s 83BH(4)(d) given by the notice. 61 For the reasons given in Thorson, the Court rejects those submissions. The notice is either valid or invalid on its face. The applicant, having chosen to require the documents by notice, is bound by his choice. 62 The power given by s 83BH(1)(b) is conferred for: "the purpose of ascertaining whether the provisions of Part VID or Part XA have been complied with, or are being complied with." The power given by s 83BH(1)(c) is conferred: "for the purpose of ascertaining whether other provisions of this Act that are prescribed by the regulations have been complied with, or are being complied with." 63 The first paragraph of the notice states that the applicant is "investigating possible breaches of Part XA of the Act". But in the second paragraph of the notice, in disclosing his purpose in seeking the documents referred to in the notice, the applicant cast his net far wider by saying: "Pursuant to s 83BH of the Act, for the purpose of ascertaining compliance of [sic] Part XA and other provisions of the Act as prescribed by the Workplace Relations Regulations. I am empowered to require persons who have custody or access to documents relevant to that purpose to produce the said documents to me." (emphasis supplied). 64 Any person receiving the notice would not have the slightest idea what the other provisions of the Act "as prescribed by the Regulations" were or what purpose the applicant was attempting to achieve. 65 There is one difference between the circumstances in Thorson and those prevailing here when one considers the consequences of a failure to comply with the notice. In Thorson privilege against self-incrimination was lost. Here it is not. Practically, that matters little to the respondent, as he cannot be prosecuted for failing to produce the documents as a servant of the State. Significantly, the respondent, if required by a declaration of this Court to produce the documents is in a worse position than would a non-State employee be if such a person faced prosecution under s 305A. It would be open for the non-State employee to raise the defence of reasonable excuse under s 305A(2). Any issue concerning whether the respondent had a reasonable excuse not to produce documents does not arise on an application for a declaration to enforce a requirement under s 83BH(4)(d). The respondent loses the right in civil proceedings which, would be open to a non-State employee in criminal proceedings, from which the respondent is immune. This is a remarkably ironic state of affairs. On account of such a consideration, in addition to the other discretionary matters already examined, the Court (even if it was otherwise satisfied that it was empowered to enforce a requirement by the giving of the notice served by the applicant) would not grant the applicant declaratory relief. 66 Although it is strictly unnecessary for the Court to deal with this issue, given it has considered the issue in the context of its discretion to refuse declaratory relief, the Court considers that the notice is invalid on its face. 67 By referring to the power for its issue being sourced in "other provisions of the Act…etc)" the notice does not identify with precision the source of the authority of the applicant. On the contrary it uses the language of the statute, rolling up together the provisions of s 83BH(1)(b) and (c), while deleting the reference to Pt VID contained in s 83BH(1)(b). 68 Borrowing from the language of Thorson at [30] and, correcting the typographical error in the use of "confirmed" rather than "conferred", it is appropriate to say, in the instant circumstances, that the power conferred by s 83BH(1) is referable to a purpose. It will trouble the authorised person little to identify that purpose and once identified, allow the recipient to adjudge its relevance and hence the validity of the request. It will only be a source of confusion for the authorised person to refer to purposes which he clearly did not have in mind in making the requirement for production, such as those referred to in s 83BH(1)(c).

Is the notice too wide in some respects? 69 Counsel for the respondent took issue with the width of the notice. They drew particular attention to the terms of Pts (C)(2) and (3) and D(5); see [18] above. It is unnecessary for the Court to rule on this issue, given its finding concerning the invalidity of the notice.

Section 298K - whether a breach can be established. 70 Counsel for the respondent submitted that a discretionary consideration against the grant of declaratory relief was that the breach of s 298K, which the applicant sought to investigate, was incapable of being established. First, it was said that the applicant could not, as at 10 October 2003, have held the view that the State had breached s 298K because by then Able had been invited to tender. That submission is rejected. Corrective conduct taken after conduct in breach of the Act (assuming the conduct to be in breach for the purposes of the argument only) cannot cure the original breach. 71 Second, counsel for the respondent submitted that no application under s 298K could be made out, because at no material time did the State engage a sub-contractor for the project and refuse to engage Able. Although it is unnecessary to give an opinion on this point, there is a tinge of unreality about that submission. An omission of a contractor from a list of tenderers is highly arguably a refusal to engage that person as an independent contractor. 72 Third, counsel for the respondent submitted that s 298K was incapable of being breached by the State in respect of Able, because the certified agreement to which Able is a party is invalid. Again, this is not a matter on which it is necessary for the Court to provide its view. For current purposes it is sufficient to say that the applicant cannot be expected, for the purposes of any investigation he conducts, to do other than assume the validity of any relevant industrial agreement. It is preferable, therefore, that the Court not express a view about the validity of what is known as the "Adex agreement", as that may be a matter requiring resolution if, and when, any s 298K application is made to the Court by the applicant, in respect of the State's alleged treatment of Able.

Reasonable excuse 73 Counsel for the applicant objected to certain affidavit evidence given by Mr Shaw which went to the issue of whether the respondent had a reasonable excuse not to produce the documents. The issue of "reasonable excuse" or the lack thereof, was raised by the applicant in his statement of claim. Although counsel for the applicant correctly point out that a reasonable excuse cannot bear upon whether there is an obligation to comply with a s 83BH(4)(d) requirement for the purposes of a declaration, it can plainly relate (as it has done here) to whether the Court should refrain from granting relief. Consequently the Court considers that Mr Shaw's affidavit should be received into evidence in its entirety.

Orders 74 For the foregoing reasons, the Court considers that it should exercise its discretion to refrain from granting declaratory relief in the application. It does so upon the assumption, that the Court was empowered, in the circumstances, to grant a declaration as requested by the applicant, in respect of the respondent as an employee of the State of Victoria. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Counsel for the Applicant: Mr R Tracey QC with Mr P O'Grady

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr K Bell QC with Mr S Mcleish

Date of Hearing: 27 and 28 October 2004