Laing v Carroll

VICTORIA DISTRICT REGISTRY VID 1505 OF 2004

REASONS FOR JUDGMENT KENNY J: 82 I have had the benefit of reading in draft the reasons for judgment of Spender and of Lander JJ. It is unnecessary for me to repeat their Honours' description of the facts, or discussion of the judgment of the learned primary judge, the parties' submissions and the relevant law. It suffices for me to state that I agree with the orders proposed by Lander J and, as will appear, substantially for the reasons stated by him. 83 First, the primary judge was correct in holding that he had power to grant declaratory relief of the kind sought by the appellant: see Federal Court of Australia Act 1976 (Cth), s 21(1). As pointed out by Lander J, the appellant has the burden of establishing that the primary judge erred in the exercise of his discretion. 84 Secondly, on examination of the relevant statutory provisions, it does not seem to me that the proceeding gave rise to any question concerning the validity of the document dated 10 October 2003 and entitled "Notice Pursuant to Section 83BH(4)(d) Workplace Relations Act 1996". A reading of s 83BH of the Workplace Relations Act 1996 (Cth) ("the Act") shows that the power conferred by s 83BH(4)(d) must only be exercised for "compliance purposes" within the meaning of s 83BH(1) and in conformity with s 83BH(2), (3) and (8). This means that, during ordinary working hours (or as otherwise stated in s 83BH(2)) an authorised officer (see s 83BG) may - in a place of business in which the authorised officer has reasonable cause to believe, pertinently, that there are documents relevant to compliance purposes (see s 83BH(3)(b)) - require the custodian of a document (or a person with access to it) to produce the document to the officer within a specified period. An authorised officer is obliged, before entering such a place of business, to announce that he or she is authorised to enter the place and, if the occupier or a representative of the occupier is present, the officer must produce an identity card to that person for inspection (see s 83BH(8)). 85 There is no statutory requirement that an exercise of the power conferred by s 83BH(4)(d) must take written form. Furthermore, the Act does not require an authorised officer to inform the custodian of the document or the occupier of his or her purpose in exercising the power. Instead, having regard to s 83BH(8), all that the authorised officer must do is announce his or her authority to enter the place in which the power is to be exercised and produce an identity card to an occupier or an occupier's representative if present. Accordingly, I agree with Lander J that the decision in Thorson v Pine (2004) 139 FCR 527, which concerned a notice under s 86(1A)(c) of the Act, is distinguishable from the present case. No question of the validity of a notice arises in this case. In any event, even if this were not so, I would agree with Spender J that the document given by the appellant to the respondent on 10 October 2003 ("the 10 October 2003 document") stated with adequate clarity the purpose for which the appellant required the respondent to produce documents. 86 Thirdly, the declaratory relief sought by the appellant should not have been refused on the ground that the respondent, by virtue of s 6(2), was not liable for prosecution under s 305A(1), for contravention of a requirement under s 83BH(4)(d). In this circumstance, it was proper, so it seems to me, for the appellant to seek the declaratory relief, which, if granted, would be likely to secure the production of the documents he sought. This consideration militates in favour of the grant of declaratory relief, rather than against it, always providing that the statutory conditions for an exercise of power are met. 87 Whilst it is true that the "reasonable excuse defence", for which provision is made in s 305A(2), could have no application in civil proceedings for declaratory relief, this need not occasion any injustice of the kind that the primary judge apparently had in mind. Depending on the circumstances of the particular case, in considering whether to grant declaratory relief, a court might well have regard to why it was that there had been a failure to comply with a requirement under s 83BH(4)(d) of the Act. 88 Fourthly, for the reasons stated by Lander J, I reject the respondent's submissions that the requirement was invalid because it was oppressive in terms. For the reasons stated by both Spender and Lander JJ, I agree that the documents sought in paragraphs (C)(2)(b) and (C)(3) of the 10 October 2003 document are not relevant to an inquiry into whether the State of Victoria has failed to comply with Part XA of the Act in the circumstances outlined; and, therefore, that their production would not be relevant for the purpose of ascertaining whether the provisions of Part XA had been complied with. Declaratory relief should not extend to documents falling within these paragraphs. I do not consider, however, that documents falling within paragraph D(5) are subject to the same objection. For the reasons stated by Lander J, I would therefore deny declaratory relief only in respect of documents within paragraphs (C)(2)(b) and (C)(3) of the 10 October 2003 document. 89 Finally, for the reasons stated by Lander J, I am also of the view that nothing has happened since the primary judge delivered judgment to lead to a different result. 90 In this regard, I wish only to add a short comment on the respondent's argument that the power conferred by s 83BH(4)(d) was spent upon the institution of the subsequent civil proceeding for, amongst other things, a declaration of contravention of Part XA of the Act. 91 In the present case, the question is whether, as a matter of statutory construction, the power conferred on an authorised officer by s 83BH(4)(d) of the Act was extinguished once the civil proceeding commenced. Notwithstanding that it concerns a different statutory provision, the decision of the majority of the High Court of Australia in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 is helpful on this question. The majority held that a corporation could not invoke the privilege against self-incrimination and, in the course of so doing, considered the validity of a notice issued to corporate defendants under s 29(2)(a) of the Clean Waters Act 1970 (NSW). This provision empowered an "authorised officer" to require the production of documents in certain circumstances. The notice was issued after the commencement of a prosecution. The majority held that the notice was valid. Mason CJ and Toohey J held, at 507, that, once it was accepted that the documents could be obtained under a notice to produce, there could be no objection to the production under the statutory notice. Brennan J stated, at 517-8, that it was not an abuse of the Court's process to take advantage of a "legitimate means of obtaining evidence". McHugh J held, at 559, that there was no contempt, although he contemplated that there might be, "if the exercise of a statutory power 'would give such a party advantages which the rules of procedure otherwise deny him'". 92 In this case, the respondent does not contend that the appellant will obtain an advantage beyond that which is permitted to a litigant by the Rules of Court. 93 Consideration of s 83BH(4) shows that it confers powers upon an authorised officer to ascertain a range of things, including whether there has been compliance with the provisions of Part XA of the Act, the terms of an AWA, or other provisions of the Act that are prescribed by the regulations under the Act. I conclude that the power conferred by s 83BH(4)(d) is not spent upon the institution of civil proceedings because its purposes are not limited to investigating prior to deciding to prosecute but are expressly conferred for the broad compliance purposes set out in s 83BH(1) of the Act. 94 For the reasons stated, I am persuaded that the primary judge erred in the exercise of his discretion, and I would make the following orders:

1. The appeal be allowed; and
2. The order of the primary judge dismissing the application be set aside. 95 I would also declare: The respondent is required by s 83BH(4)(d) of the Workplace Relations Act 1996 (Cth) to produce to the appellant the documents described in paragraphs marked (A)(1)-(3), (B)(1)-(3), (C)(1) & (2)(a), (D)(1)-(5) and (E)(1)-(2) of the document dated 10 October 2003 and headed "Notice Pursuant to Section 83BH(4)(d) Workplace Relations Act 1996". 96 Probably assuming that s 347 of the Act applied in this proceeding, the primary judge made no order as to costs and neither party sought costs on the appeal. Indeed, nothing at all has been said about the costs of the appeal or the costs at first instance. In this circumstance, I would make no order as to costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

VICTORIA DISTRICT REGISTRY VID 1505 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT LANDER J: 97 The appellant is an employee of the Commonwealth in the Department of Employment and Workplace Relations and attached to the Interim Building Industry Taskforce (the Taskforce) as an investigator. He is an authorised officer for the purposes of s 83BG(1) of the Workplace Relations Act 1996 (the Act). 98 The respondent is an employee of the State of Victoria (the State) to whom a notice was given under s 83BH(4)(d) of the Act to produce documents. The notice was not complied with. 99 The appellant sought a declaration: '[t]hat the respondent is required by section 83BH(4)(d) of the Workplace Relations Act 1996 to produce the documents described in the Notice served upon him by the applicant on 10 October 2003 to the applicant …' 100 This is an appeal from a decision of a judge of this Court refusing, in the exercise of that judge's discretion, to grant the declaratory relief sought by the appellant. 101 In early 2002 the State decided to remediate certain land which had previously been occupied by the Morwell gas works in the Latrobe Valley. To do so, it made the Victorian Government Property Group (the VGPG), an entity within the Department of Treasury and Finance, responsible for undertaking the remediation project. 102 In May 2002 the VGPG advertised for registrations of interest by demolition contractors in relation to demolition work at the site. Able Demolitions and Excavations Pty Ltd (Able) was one of eight parties who forwarded a registration of interest to the VGPG. 103 CMR Consultants (Australia) Pty Ltd (CMR) was engaged to evaluate the registrations of interest and to select a short list of demolition contractors to be invited to tender for the project work. On 21 February 2003 CMR advised Able that it would not be one of those parties invited to tender. Those invited to tender were notified on 21 February 2003 that tenders should be submitted by 30 April 2003. 104 On 11 March 2003 Able's solicitor complained to the Taskforce about Able's exclusion from the short list of tenderers. Able contended that it had been excluded from the short list of tenderers because it was not a party to an enterprise agreement to which the Construction Forestry Mining and Energy Union (the CFMEU) was a party. 105 The appellant, as a member of that Taskforce, considered Able's complaint. He reached the view that the State may have breached s 298K(2)(d) of the Act by refusing to engage Able as an independent contractor for a prohibited reason in s 298L(1)(h) of the Act, because Able was entitled to the benefit of a certified agreement under s 170LK of the Act. 106 On 14 April 2003 the applicant wrote to Mr John Howell, who then had responsibility within VGPG for the project, requesting the provision of various categories of documents concerning the tender process. In doing so, it advised Mr Howell that the appellant was 'investigating whether the State of Victoria (the State), or any other entity, has breached Part XA of the [Workplace Relations Act 1996 Cth] in refusing to allow Able Demolitions and Excavations Pty Ltd (Able) to tender for the Lurgi Gasworks Demolition Project (the Project)'. 107 The appellant then set out in detail the facts which appeared to him to exist. They are not relevantly different to these reasons. 108 On 24 April 2003 Mr David Shaw, a partner in Holding Redlich solicitors, wrote to the appellant advising that they acted for the State and would be responding as soon as possible. On 7 May 2003 the appellant wrote to VGPG's solicitors seeking to arrange a time for inspection of the documents referred to in his letter to Mr Howell of 14 April 2003. 109 In the meantime, CMR had written to each of the tenderers advising them that in order not to prejudice Able's position the closing date for tenders would be extended for about six weeks until the Taskforce investigation had been completed. 110 On 28 May 2003 CMR again wrote to the demolition contractors advising them that tenders would not close at the end of that extended six week period because the appellant's investigations were still continuing. The demolition contractors were advised that they would be given 14 days notice of the date for the tenders closing. 111 On 10 June 2003 the State's solicitors wrote to the appellant advising, inter alia, that it would now invite Able to submit a tender for the demolition work on the project. It advised the appellant that the decision had been made without any admission on the part of the Government that it acted improperly or in contravention of the Act. 112 Moreover, it advised the appellant that the tender process would be supervised by a Probity Auditor who would oversee and scrutinise the tender process and the selection of the successful tenderer. 113 On 23 July 2003 CMR wrote to Able inviting Able to tender for the demolition project. 114 On 5 August 2003 the appellant served a document entitled, 'Notice Pursuant to Section 83BH(4)(d) Workplace Relations Act 1996' on Mr John Howell of the VGPG (the first Howell notice). Service was effected by leaving the notice with the receptionist of the State's solicitors. 115 The first Howell notice required production of documents created on or before 23 April 2003. 116 On 18 August 2003 the State's solicitors wrote to the appellant seeking a further seven days in which to comply with the notice. The appellant agreed. 117 On 25 August 2003 the State's solicitors wrote to the appellant advising that the State would not comply with the notice. 118 It wrote: 'We refer to your letter dated 5 August 2003 and the Notice purportedly issued pursuant to s 83 BH(4)(d) of the Workplace Relations Act 1996 (Cth) of the same date. We have now obtained instructions from the State of Victoria in relation to these matters. 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 of 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. We request on your behalf of the State that you reconsider your decision to continue to investigate this matter. If you wish to discuss this matter further, please contact David Shaw of this office.' 119 The appellant determined to proceed with the investigation and, on 11 September 2003, prepared a second notice directed to Mr Howell (the second Howell notice) to produce documents which was in almost identical terms to the first Howell notice. 120 On the same day, the appellant attempted to serve the second Howell notice on Mr Howell intending to invoke the requirement for Mr Howell to provide the documents whilst the appellant was on the premises. 121 When he attended the premises, however, the appellant was told by the receptionist that Mr Howell told her that he would not see the appellant nor accept any documents from him. The appellant was told that, for security reasons, the receptionist could not accept any letters or parcels which had to be delivered to the mailroom for checking. The appellant was told that if he wished to serve any documents they should be served on VGPG's solicitor, Mr Shaw. His details were given to the appellant. 122 On 17 September 2003 the appellant again attended at the offices of VGPG and was directed from the security desk to the mail centre where he left the second Howell notice for delivery to Mr Howell. 123 On the next day he faxed a letter to the State's solicitors advising them of the circumstances of his attempt to make a requirement for the production of documents on 17 September. He attached the second Howell notice. 124 On 24 September 2003 the State's solicitors requested an extension of time of 14 days be granted to comply with the second Howell notice. On 25 September 2003 the appellant agreed. 125 On 8 October 2003 the State's solicitors wrote to the appellant 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'

126 It is rather curious that none of the VGPG, the State or its solicitors had previously advised the appellant that Mr Howell might not be a person who ever had custody of or access to the documents sought by the appellant. 127 On 9 October 2003 the appellant responded to that letter and wrote: '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)'

128 The State's solicitors responded to the appellant's letter of 9 October 2003 on the same day in the following terms: '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'

129 Again, on the same day, the appellant wrote to the State's solicitors addressing the matter raised by those solicitors in their letter of 9 October 2003. The appellant wrote: '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)' 130 In his affidavit in support of the declaration sought the appellant deposed to the events on 10 October 2003: '39. On 10 October 2003 at approximately 11.30am I attended at the offices of the Victorian Government Property Group at 1 Treasury Place, Melbourne. I did so because I believed that this was the location of Carroll's office and, having regard to the contents of Holding Redlich's letter of 8 October 2003 I considered that Carroll was the person who had custody of the documents which I believed were relevant to my investigation. I met Carroll at the security desk. I identified myself to Carroll as an authorised officer and showed him my identity card. I explained to Carroll that I required him to produce documents to which he had custody and access, and showed him notice NPAO 01/0083 ('the Carroll Notice'). I told Carroll that this Notice contained the details of the documents I was seeking. Carroll then asked me if I could hand him a copy of the Carroll Notice outside of the building because of the Victorian Government Property Group's security policy. I agreed to this and we stepped outside the building. Carroll then took possession of the Carroll Notice approximately two to three metres outside the front door of the premises on the patio immediately outside the revolving front door. We stood under the roof covering the front entrance of the building. The Carroll Notice was in identical terms to the second Howell Notice and required the production of documents by 4.00pm on 17 October 2003. Now shown to me and marked "WL-21" is a copy of that notice.' 131 The notice which was served was in the following form: 'Notice Pursuant to Section 83BH (4)(d) Workplace Relations Act 1996 Mr Peter Carroll Victorian Government Property Group Commercial Division Department of Treasury and Finance Level 5, 1 Treasury Place MELBOURNE VIC 3002 Dear Mr Carroll Notice to Produce Documents - NPAO 01/0083 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 WorkplaceRelations 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, 17 October 2003, the following documents created prior to 23 April 2003, 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 guidelinesincluding 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 23 April 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. 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.' 132 The notice was in identical terms to the second Howell notice which was not materially different from the first Howell notice. 133 On 17 October 2003 the State's solicitors, and by now Mr Carroll's solicitors, wrote to the appellant in the following terms: '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' 134 The appellant sought legal advice and decided to bring these proceedings. 135 The appellant's solicitor spoke to the respondent's solicitor and advised him that these proceedings would be brought. In answer to a question from the respondent's solicitor, the appellant's solicitor said that the appellant would not seek to have the respondent comply with the notice whilst the proceedings were pending and that the respondent would have an opportunity to comply with the notice if the Court made the declarations sought by the appellant. 136 These proceedings were issued on the same day. 137 On 15 December 2003 CMR accepted Able's tender and Able entered into possession of the site on 19 January 2004. 138 Section 83BA of the Act creates an 'Employment Advocate'. The Employment Advocate's functions are set out in s 83BB of the Act. Relevantly, the Employment Advocate has the following functions: '(c) providing advice to employers and employees, in connection with AWAs, about the relevant award and statutory entitlements and about the relevant provisions of this Act; … (e) investigating alleged breaches of AWAs, alleged contraventions of Part VID and any other complaints relating to AWAs; (f) investigating contraventions of Part XA.' 139 Section 83BG of the Act empowers the Employment Advocate to appoint as an authorised officer a person who is appointed or employed by the Commonwealth: s 83BG(1)(a). The appellant is an authorised officer appointed by the Employment Advocate pursuant to s 83BG(1). 140 Section 83BG(2) provides: '(2) In exercising powers or performing functions as an authorised officer, an authorised officer must comply with any directions of the Employment Advocate.' 141 The powers of an authorised officer are set out in s 83BH of the Act: '(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; (c) interview any person; (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). (6) Where a document is produced to an authorised officer under paragraph (4)(d) or subsection (5), the authorised officer may: (a) inspect and copy the document; and (b) if the authorised officer gives a receipt to the person who produced the document - retain the document for as long as necessary for the purpose of exercising powers or performing functions as an authorised officer. (7) While an authorised officer retains a document, the authorised officer must permit the document to be inspected and copies, at any reasonable time, by: (a) the person otherwise entitled to possession of the document; or (b) a person authorised by the person otherwise entitled to possession of the document. (7A) An authorised officer may, without force, enter a place of business in which a person ordinarily performs work or conducts business if the authorised officer has reasonable cause to believe that the person has information relevant to compliance purposes. (7B) An authorised officer must not enter a place of business under subsection (7A) if he or she has reasonable cause to believe that the person concerned is not in that place. (7C) An authorised officer who enters a place of business under subsection (7A) may interview the person concerned in that place. (8) Before entering a place under this section, an authorised officer must announce that he or she is authorised to enter the place. If the occupier or another person who apparently represents the occupier is present, the authorised officer must produce his or her identity card to that person for inspection. (9) In this section: copy, in relation to a document, includes take extracts from the document.' 142 The notice, the subject matter of the proceedings before the primary judge and this appeal, was given pursuant to s 83BH(4)(d). 143 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.' 144 However, s 6 of the Act 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.' 145 Thus it is that Mr Carroll cannot be liable to be prosecuted for an offence under s 305A(1) of the Act. 146 Part XA of the Act deals with freedom of association and, in particular, Division 2 of Part XA deals with conduct to which the part applies. 147 Section 298K(2)(d) provides: '(2) 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.' 148 The 'prohibited reasons' referred to in s 298K are spelt out in s 298L which relevantly provides: '(1) Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned: … (h) is entitled to the benefit of an industrial instrument or an order of an industrial body.' 149 'Industrial instrument' is defined in s 298B of the Act: 'industrial instrument means 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.' 150 The primary judge held that the only provision in the Act which deals with a person's failure to comply with a notice given under s 83BH(4)(d) is that section which provides that the failure is a criminal offence: s 305A(1); but that because of the provisions of s 6(2) the respondent is not liable to be prosecuted under that section. 151 The primary judge found, correctly in my view, that there was an obligation under s 83H(4)(d) to comply with a notice and that the Court could, in the exercise of its discretion, make a declaration of the kind sought. 152 However, he reasoned that the appellant was seeking to achieve by the application for declaratory relief, at [55]: '… 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.' 153 His Honour said that the reasons mentioned in the paragraph cited were sufficient in the exercise of the Court's discretion to refuse to grant the relief sought in the application. 154 However, he said that there was another independent reason which was also sufficient in itself to refuse to grant the declaration. 155 He said, at [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.' (In Thorson v Pine the same judge was called upon to consider a notice under s 86(1A)(c) of the Act.) 156 In the decision under appeal the primary judge found that the second paragraph of the notice sought the documents 'for the purpose of ascertaining the compliance of [sic] Part XA and other provisions of the Act as prescribed by the Workplace Relations Regulations'. He said that any person to whom the document was delivered 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'. 157 He said: '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.' 158 He went on to find that 'the Court considers that the notice is invalid on its face'. 159 It is not easy to understand why his Honour dealt with the question of the validity of the notice in considering the Court's exercise of its discretion to grant the relief sought. If the notice was invalid then the question of discretion would never arise. 160 Next, he considered whether a breach of s 298K of the Act had been established. 161 I think a fair reading of his Honour's reasons is that his Honour inclined to the view that a breach had been established but that he did not need to make any final decision. 162 His Honour concluded: '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.' 163 For the reasons I have already given, it seems that his Honour found two reasons for refusing to exercise his discretion in favour of the applicant. First, because the appellant was trying to do by the backdoor what he could not do directly. Secondly, because the notice was invalid. For the reasons already given, if the notice was invalid then, in my opinion, the question of discretion did not arise. 164 A number of grounds were advanced on this appeal. 165 First, the appellant argued that the primary judge was wrong to find that the notice was invalid on its face; secondly, that the primary judge took into account matters irrelevant to the exercise of his discretion; thirdly, that he failed to take into account matters relevant to the exercise of his discretion; and fourthly, that he imposed a fetter on the exercise of his discretion in finding that there was an inbuilt mechanism for the enforcement of s 83BH(4)(d) and (5) in s 305A. 166 In my opinion, all four grounds were made out. 167 Section 21 of the Federal Court of Australia Act 1976 (Cth) provides: '(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.' 168 It is well settled that the jurisdiction to make a declaration is a very wide one: Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421 at 435 per Gibbs J. The exercise of the jurisdiction is subject to the discretion of the Court which, of course, must be exercised judicially. The jurisdiction may be ousted by statute but only where the statute indicates a clear intention to exclude the power of the Court to make a declaratory order. There is nothing in the Act which would indicate a clear intention to exclude the Court's very wide jurisdiction to grant declaratory relief pursuant to s 21 of the Federal Court of Australia Act. 169 In my opinion, his Honour was right to conclude that he had jurisdiction to make the order. 170 Because the making of a declaration is discretionary and because one of the reasons for the refusal was in the exercise of the primary judge's discretion, the appellant has the burden of establishing that the primary judge erred in the exercise of that discretion: House v The King (1936) 55 CLR 499 at 504. It is only in the case of error that a discretionary judgment can be set aside on appeal: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [21] per Gleeson CJ, Gaudron and Hayne JJ. 171 The powers in s 83BH must only be exercised for the purposes of s 83BH(1) of the Act and only, of course, by an authorised officer. The powers given the authorised officer are very wide. An authorised officer is entitled to enter, without force, any of the places of business referred to in s 83BH(3) provided that he or she has reasonable cause to believe any of the separate matters mentioned in pars (a), (b) or (c) and provided, of course, the power is being exercised for one of the purposes in s 83BH(1) of the Act. 172 Section 83BH(8) requires the authorised officer to announce, before entering a place of business under s 83BH(3), that he or she is authorised to enter the place. The authorised officer must also produce his or her identity card to the occupier of the premises or any other person who apparently represents the occupier who is present. 173 Once the authorised officer is on one of the places of business referred to in s 83BH(3), the authorised officer may exercise any of the powers in s 83BH(4). 174 Those powers include the power to 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: s 83BH(4)(d). 175 Section 83BH(4)(d) does not require the authorised officer to give any notice in writing to the person whom he requires to produce the document. 176 Indeed, s 83BH(4)(d) contemplates that such a requirement could arise spontaneously out of either an inspection of work, material, machinery, appliance, article or facility, or an interview of any person: s 83BH(4)(a) and (c). 177 The obligation to give a notice under s 83BH only arises if the authorised officer wishes to exercise the further power given to the authorised officer under s 83BH(5). That power can only be exercised where there has been a failure to produce a document to the authorised officer as required under s 83BH(4)(d). 178 The appellant argued that his Honour's previous decision in Thorson v Pine [2004] FCA 1316 should be overruled because it was wrong. 179 In my opinion, the correctness of that decision does not need to be examined. Thorson v Pine was a decision under s 86 of the Act. That section empowers an inspector (who is a person appointed under s 84 of the Act) to require a person having the custody of or access to a document to produce the document to the inspector within a specified period: s 86(1A)(b)(iv). A notice which is given under s 86(1A)(b)(iv) must be in writing: s 86(4A). 180 If notice is given, a person is not excused from producing the document on the ground that the production of the document may tend to incriminate the person: s 86(4B). 181 Section 86 provides for a more formal requirement than that provided in s 83BH(4)(d) of the Act. In my opinion, what might be required under that section for compliance with the section is not necessarily the same as that which is required under s 83BH(4)(d). 182 In my opinion, Thorson v Pine was not relevant in a consideration of this matter. 183 In my opinion, the primary judge was wrong to conclude that this notice was invalid on the face of it because the person to whom the document was delivered would not have the slightest idea of what the other provisions of the Act as prescribed by the Regulations were or what purpose the applicant was attempting to achieve. 184 All the authorised officer had to do in exercising the power under s 83BH(4)(d) was first to comply with s 83BH(8) before entering the place of business; secondly, to have the belief that the place of business which he was about to enter was a place where a breach of Part VID or Part XA of the Act had occurred; and thirdly, whilst on those premises require a person who had the custody of, or access to, the document to produce the document to him. Of course, the power could only have been exercised for the purpose of ascertaining whether the provisions of Part VID or Part XA have been complied with. 185 No further obligation was imposed on the authorised officer by s 83BH other than those to which I have referred. There was no obligation to reduce the notice to writing although, in this case, the notice was in writing. 186 There is no obligation in s 83BH when an authorised officer enters a place of business under s 83BH(3) to announce the purpose for which entry has occurred. The only obligations upon an authorised officer are those contained in s 83BH(8). Therefore, the authorised officer may enter a place of business pursuant to s 83BH(3) without advising the occupier or another person who apparently represents the occupier the purpose of the entry. 187 The authorised officer does not have an obligation to advise the purpose for which he or she inspects any work, material, machinery, appliance, article or facility (s 83BH(4)(a)), takes samples of any goods or substances (s 83BH(4)(b)), or interviews any person (s 83BH(4)(c)). 188 In those circumstances, there is no warrant to read into s 83BH(4)(d) an obligation imposed upon the authorised officer to state precisely the powers which the authorised officer is exercising when requiring a person who has the custody of, or access to, a document to produce the document to the authorised officer. 189 In my opinion, his Honour's conclusion that the notice was invalid, on its face, was wrong because his Honour sought to impose upon the appellant obligations which were not imposed by the Act. 190 A failure to comply with s 83BH(4) by a person who has the custody of, or access to, a document can give rise to two further results which are not mutually exclusive. 191 First, the authorised officer can give the further notice provided for in s 83BH(5) requiring the person to produce the document at a specified place within a specified period. 192 Alternatively, the person might be prosecuted under s 305A. 193 If the authorised officer adopts the first procedure and gives a notice under s 83BH(5) and that notice is not complied with by the person to whom the notice is directed, the person may be prosecuted under s 305A(1). 194 In this case, because of the operation of s 6(2) of the Act, the respondent could not be prosecuted. 195 In those circumstances, the appellant only had one avenue available to him under the Act and that was to give notice under s 83BH(5). However, in view of the stated attitude of the respondent, it was clear that if notice were given under s 83BH(5) the notice would not be complied with. 196 The only sanction as I have mentioned under the Act (i.e. a prosecution under s 305A(1)) would not have been available because the respondent was an employee of the State who had the protection of s 6(2) of the Act. 197 It was no doubt, for those reasons, that the appellant adopted the procedure of seeking a declaration from this Court which, if granted, would be a powerful reason for the State to comply. 198 Where no criminal sanction was available and no other civil remedy also available, it seems to me entirely appropriate that the appellant issued these proceedings seeking a declaration of the kind sought. 199 The primary judge reasoned that he should not exercise his discretion to grant the declaration because the respondent was not liable to prosecution and therefore the respondent had lost the chance to claim that he had a reasonable excuse not to produce the documents. 200 In my opinion, that reasoning is fallacious. This was not a prosecution under s 305A. Indeed, the respondent was not liable to be prosecuted under that section. 201 Indeed, if the respondent had been liable to prosecution that might have been a reason not to make a declaration that the respondent had failed to comply with the Act. The very fact that the respondent was not liable to prosecution was a reason to make a declaration. 202 Whether if he could have been prosecuted he might have had a statutory defence to the prosecution was not relevant, in my opinion, in considering whether a declaration should be made that he is required to produce documents in compliance with the Act. 203 It might be a relevant consideration, in determining whether, in the exercise of the Court's discretion, the declaration should be made, whether the respondent had a reasonable excuse not to produce the documents. 204 In this case, the respondent did not offer any excuse so, in those circumstances, the fact that he did not have available to him a statutory defence to a prosecution which could not be brought was, in my opinion, entirely irrelevant. 205 For those reasons, in my opinion, the primary judge erred in finding that the notice was invalid on its face. Further, he erred in taking into account a matter which was irrelevant, namely the non-availability of a statutory defence to a prosecution which could not be brought. He also failed to take into account a relevant consideration, namely, the absence of a sanction available to the authorised officer where the person in default is an employee of the State. Lastly, he was wrong to impose any fetter on the general discretion to grant the declaratory relief because there was an inbuilt mechanism for the enforcement of s 83BH(4)(d) and (5) in s 305A. In fact, there was no such inbuilt mechanism under s 305A because the respondent, in these proceedings, was not a person within the reach of the sanction. 206 The respondent contended before the primary judge that the notice was invalid on its face and void and of no effect because the notice was oppressive in its terms and too wide because, by paragraphs (C)(2)(b), (C)(3) and (D)(5), it purports to seek broad classes of documents not defined by reference to the question whether the provisions of Part XA of the Act had been complied with in relation to the pre-tender processes. 207 That matter was not addressed by the trial judge but needs to be addressed on this appeal. 208 It is not entirely clear what the respondent means by the notice being oppressive. If it is meant that the notice put the respondent to inconvenience and cost that, in my opinion, is not a reason for finding a notice of this kind to be invalid. Moreover, there was no evidence before the primary judge, nor any evidence before this Court, that the respondent would be put to any trouble, inconvenience or cost of any kind but, more relevantly, of a burdensome kind. 209 If there is a necessary connection between the documents sought in s 83BH(4)(d) and the purposes for which the power is given, it is no objection to complying with a notice that it would be burdensome to furnish the information or produce the document: Melbourne Home of Ford Pty Ltd & Ors v Trade Practices Commission & Anor (1980) 31 ALR 519. I reject the contention that the notice is invalid because it is burdensome. 210 It was also argued that the notice was oppressive because the documents identified in paragraphs (C)(2)(b), (C)(3) and (D)(5) are not relevant to the purpose for which the requirement was made in the s 83BH(4)(d) notice. 211 In my opinion, the documents sought in paragraphs (C)(2)(b) and (C)(3) are not relevant to an investigation into whether there has been a possible breach of Part XA of the Act. 212 Any documents relating to Able and Demolition Works and Asbestos Removal Services on or in connection with any work site to 23 April 2003 in the State of Victoria do not seem, on the face of it, to be relevant into whether the State of Victoria has breached Part XA of the Act in failing to allow Able to tender in respect of Morwell Gasworks Remediation Project. Moreover, in my opinion, the documents identified in paragraph (C)(3) are not relevant to that inquiry because it is not suggested that Able was not invited to tender because of its performance on any past project. In my opinion, the documents identified in paragraphs (C)(2)(b) and (C)(3) are not relevant to the investigation. 213 The documents in paragraph D(5) are, in my opinion, relevant to the investigation being carried out by the appellant. 214 Documents comprising any contact or dealing between the State and any industrial association concerning, or relating to, Able would be relevant into whether there has been a breach of Part XA of the Act, especially in view of the fact that the suspicion is that Able was excluded from the short list of tenderers because it was not a party to an enterprise agreement to which the CFMEU was a party. 215 A notice of this kind is like a subpoena. The documents sought must be identified with sufficient particularity to allow the person to whom the notice is addressed to comply with the notice. It may only seek documents which are relevant to the power being exercised. If the notice goes further then it may be set aside as being oppressive or the notice may be limited by severing from the notice documents which are beyond the reach of the authorised officer giving the notice. 216 In my opinion, paragraphs (C)(2)(b) and (C)(3) may be severed from the notice: Parker v Churchill (1986) 9 FCR 334 at 350. Indeed, the respondent conceded so much before the primary judge, a concession to which the respondent ought to be held. 217 For all those reasons, in my opinion, the primary judge was wrong to refuse the appellant's application for a declaration in the terms sought. 218 There was no relevant reason before the primary judge why the declaration should not have been made. 219 The respondent has argued that even if this Court is of the opinion that the primary judge erred in failing to make the declaration sought, this Court should not make the declaration because of circumstances which have occurred since the matter was before his Honour. 220 An affidavit has been filed by the respondent's solicitor exhibiting an application which was issued in this Court (No. VID 111 of 2005) on 16 February 2005 pursuant to s 298T of the Act in which the appellant is applicant and the State of Victoria respondent (the penalty proceedings). 221 In that application, the appellant seeks: '3. A declaration that the respondent, on or about 21 February 2003 contravened paragraphs 298K(2)(d) of the [Workplace Relations] Act by refusing to engage Able Demolitions and Excavations Pty Ltd as an independent contractor on the Morwell Gasworks Remediation Project for a prohibited reason. 4. An order imposing a penalty on the respondent in respect of such contravention. 5. Such other orders as to the Court may seem just.' 222 That application was supported by an affidavit of the appellant's solicitor, Craig Rawson, in which he deposed to the course of these proceedings and the institution of this appeal. 223 In that affidavit he has deposed: '7. Depending on the facts which may ultimately emerge it is possible that the State of Victoria made a decision to refuse to engage Able as an independent contractor on or about any or all of the following dates: 7.1 21 February 2003 when Able were advised by the Project Manager retained by the State of Victoria that they would not be invited to tender for the Project; 7.2 26 February 2003 when representatives of Able met with the Project Manager and were (allegedly) informed that Able had not been on the tender list because its Registration of Interest did not comply with the requirement of the Latrobe Valley Ministerial Taskforce and there was a continuing dispute regarding a previous project undertaken by Able; or 7.3 7 March 2003 when solicitors for the State of Victoria wrote to Able's solicitor confirming that Able would not be invited to tender for the project. 8. If the State of Victoria did decide to refuse to engage Able as an independent contractor and did so because of, or for reasons that included, a reason prohibited by section 298L of the WR Act then it contravened paragraph 298K(2)(d) of the WR Act. 9. If Laing is successful in obtaining the State's documents it is likely that those documents will tend to suggest either that the State of Victoria has, or has not, contravened s298K(2)(d). Accordingly the Taskforce does not wish to prosecute proceedings under Part XA of the WR Act until Laing has exhausted his rights to ascertain whether the provision of Part XA have been complied with.' 224 He further deposes that any application of the kind under s 298T of the Act must be brought within two years from the date on which the cause of action accrued. In that regard he says that the proceedings are governed by the time limitation period provided by s 5(5) of the Limitation of Actions Act 1958 (Vic). Section 5(5) of that Act provides that an action to recover any penalty or forfeiture or sum by way of penalty or forfeiture coverable by virtue of any enactment shall not be brought after the expiration of two years from the date on which the cause of action accrued. 225 For those reasons, the penalty proceedings were commenced notwithstanding that the appellant's investigations had not completed because he had not obtained the documents the subject matter of the s 83BH(4)(d) notice. 226 He concludes his affidavit: '15. The Taskforce does not wish to prosecute these proceedings at this stage for the reasons given in paragraphs 7 to 9 herein. By reason of the matters set out in those paragraphs there are a range of possible outcomes to Laing's investigation. One of those possible outcomes is that the Taskforce will wish to prosecute proceedings against the State of Victoria in respect of an alleged contravention of s298K(2)(d) of the WR Act. However that is only one possibility. Because the Taskforce has not been able to gain access to the State's documents it is not possible to estimate the likelihood of that possibility being reached. Accordingly the Applicant submits that the efficient and effective administration of justice would be best served by adjourning these proceedings until such time as Laing has been able to conclude his investigation. 16. If the applicant does decide to prosecute these proceedings at some point in the future the Applicant submits that there would be no prejudice to the State of Victoria's position by reason of any adjournment at this stage. The documents which Laing is still attempting to obtain are documents held by the State of Victoria. Unlike either Laing or Hadgkiss, the State of Victoria is well aware of their contents, and has been on notice for nearly two years that the Taskforce seeks access to those documents. Those documents are likely to be relevant to two principal issues that will arise if these proceedings are prosecuted: 16.1 whether the State of Victoria refused to engage Able as an independent contractor; and 16.2 (if so) whether that refusal was for a reason prohibited by section 298L of the WR Act. In respect of the second of these issues by reason of s298V of the WR Act the State of Victoria bears a reverse - onus of proof in any proceedings commenced under s298T of the WR Act. Accordingly the complete absence at trial of any documents or other evidence which may bear on the reason or reasons for which the State of Victoria excluded Able from the list of contractors to be invited to tender for the project would have the result that the State would be unable to rebut the reverse - onus so as to establish that its actions were not actuated by any prohibited reason. It is quite possible that any documents which Laing is successful in obtaining from the State of Victoria would support the State of Victoria's case in this proceeding.' 227 The respondent's solicitor has also exhibited the statement of claim in the penalty proceedings. 228 In that statement of claim it is pleaded: '22. The Conduct of the Respondent was: (a) conduct carried out with a purpose or intent relating to the fact that a person is bound by an award, a certified agreement or an AWA for the purposes of s.298F(2)(b) of the WR Act; (b) conduct in Victoria for the purposes of s.496 of the WR Act; and (c) a refusal to engage another person as an independent contractor for the purposes of s.298K(2)(d) of the WR Act. 23. The Conduct of the Respondent was carried out for reasons that included the following reasons: (a) Able participated in the Section 170LK Proceeding; and (b) Able was entitled to the benefit of the Adex Agreement; ("Reasons for the Conduct") 24. The Reasons for the Conduct are prohibited reasons under s.298L(1)(h) and s.298L(1)(j) of the WR Act. 25. By reason of the matters pleaded in paragraphs 21 to 24 above, the Respondent contravened s.298K(2)(d): (a) on 21 February 2003; (b) alternatively, on 26 February 2003; (c) alternatively, on 7 March 2003.' 229 Apparently, the penalty proceedings should not have been instituted by Mr Laing who did not have authority to do so. A Notice of Motion was filed on 25 February 2005 by the applicant and Nigel Hadgkiss seeking an order that Nigel Hadgkiss, who had the requisite authority, be substituted for the appellant as the applicant in the penalty proceedings. 230 On 15 March 2005 the respondent applied to strike out the application in the penalty proceedings. 231 On 16 March 2005 Merkel J made the following orders: '1 The applicant deliver a Statement of Claim on or before 6 April 2005. 2 The respondent file and serve a Defence on or before 27 April 2005. 3 The applicant file and serve any Reply on or before 4 May 2005. 4 The parties exchange an outline of submissions on or before 20 May 2005. 5 Direct parties exchange any responding submissions on or before 27 May 2005. 6 Any affidavits of the parties be filed and served on or before 4 May 2005. 7 Fix the motions for hearing at 10 am on Friday 3 June 2005. 8 Reserve Costs.' 232 The respondent contended that the powers conferred on the appellant by s 83BH of the Act for the purpose of ascertaining whether the provisions of Part XA have been complied with, or are being complied with, are now spent. They are spent because the appellant has commenced the penalty proceedings. Thus, it follows, goes the argument, that the investigatory phase is complete and the declaration should now not be made. 233 The respondent contended that the appellant's solicitor has asserted in the penalty proceedings that in fact Part XA was not complied with. The respondent argued that the statement of claim shows that it was prepared by senior and junior counsel and the appellant's solicitor has certified that there is a proper basis for the allegations in paragraphs 23-25 of the statement of claim. Such a certificate is required by O 11 r 1B and Form 15B of the Federal Court Rules. 234 The respondent also contended that the declaration should not be made because, in doing so, the Court might make 'findings of facts which "cut across" determination of the penalty proceedings by Merkel J, since in so doing, the Court would necessarily make findings about the tender process in respect of which the Notice has been served. But these questions are now subsumed in the substantive penalty proceedings which ought to be allowed to progress in the ordinary manner'. 235 The respondent also contended that the s 83BH notice 'cannot be used for the purpose of gathering evidence for use in the penalty proceedings, since that is not a purpose provided in s 83BH'. The respondent contended that having instituted the penalty proceedings any disputes in relation to discovery, production of documents and available privileges should be determined in those proceedings as usual by reference to the pleadings. 236 I will deal with the respondent's contentions in reverse order. 237 In my opinion, the proposition that the notice cannot be used for the purpose of gathering evidence for use in the penalty proceedings is wrong. The purpose of s 83BH is to enable the authorised officer to gather evidence in accordance with s 83BH(4) in any place of business which he or she is authorised to enter. 238 In my opinion, contrary to the respondent's contention, a purpose of the issue of a notice under s 83BH(4)(d) is to gather evidence for use in subsequent proceedings if the person authorised to bring subsequent proceedings is of the opinion that the provisions of Part XA may not have been complied with or contravened. 239 The second aspect of that third contention of the respondent is that any disputes in relation to discovery and production of documents should be determined in the penalty proceedings. 240 Discovery and production of documents will be relevant matters in the penalty proceedings. However, it does not follow, because the parties may be called upon to make discovery and give inspection of documents in those proceedings that the declaration should not be made in these proceedings. 241 If a declaration had been made of the kind that has been sought by the appellant that would not relieve the respondent in subsequent penalty proceedings from making discovery. The procedure in s 83BH(4)(d) should not be understood as being an application by the appellant for discovery. The procedure in s 83BH(4)(d) does not require the party to whom the notice is given to make discovery. It requires that person to produce a document identified in the notice to the authorised officer. 242 It may be that the party to whom the notice is directed has a number of other documents which would be relevant in subsequent penalty proceedings which are not sought in the notice but will become discoverable in the penalty proceedings. 243 So also it may be that a document sought in the notice will not be discoverable in the penalty proceedings because it does not satisfy the test for discovery in those proceedings. 244 The respondent's contention rather assumes that the notice under s 83BH(4)(d) is no more than an application for discovery by the authorised officer. In my opinion, that premise to the respondent's contention is not correct. 245 I also reject the respondent's contention that there is a real risk that this Court could make findings of fact which would cut across the determination of the penalty proceedings by Merkel J. In my opinion, there is no such risk. There is no dispute, on the facts, that a notice was given by the appellant under s 83BH(4)(d). The respondent does not dispute that he failed to comply with the notice. He has offered no reason for his failure to comply. In those circumstances, there is no risk whatsoever that this Court could make findings of fact which might cut across the determination of the penalty proceedings. 246 That leaves for consideration the respondent's primary contention that this Court should not make the declarations sought because of events which have occurred since the hearing before the primary judge. The respondent's contention is that the notice is spent because of the issue of the penalty proceedings. 247 In support of his contention, the respondent has pointed to the fact that the statement of claim filed in the penalty proceedings carries with it a certificate that there was a proper basis for the allegations in paragraphs 23 -25 of the statement of claim. 248 In those paragraphs it is claimed that the respondent has breached the provisions of Part XA of the Act. 249 In my opinion, that certificate is not inconsistent with the appellant seeking to have this Court make the declaration that ought to have been made by the primary judge. 250 The appellant's solicitor has simply asserted in the penalty proceedings that the State of Victoria has breached Part XA of the Act. 251 That is not inconsistent with a claim by the appellant in these proceedings that the respondent to these proceedings has failed to comply with the respondent's obligations under s 83BH(4)(d) of the Act. 252 In my opinion, to ask this Court to make the declaration which should have been made by the primary judge is not inconsistent with a claim that there is a proper basis for the allegations in paragraphs 23-25 of the statement of claim. 253 There is no evidence before this Court for a finding that the certificate given by the appellant's solicitors in the penalty proceedings is false. Such a finding could not be made without, of course, giving the appellant's solicitor an opportunity to address that matter. 254 In my opinion, the certificate given by the appellant's solicitor in the penalty proceedings does not assist the respondent in respect of his contention that the investigative powers given for compliance purposes under s 83BH are spent. 255 The question to be determined is whether the bringing of the penalty proceedings by themselves means that this Court should not make a declaration of the kind sought. The penalty proceedings are not criminal proceedings. They are proceedings for a civil penalty under the Act. 256 There is authority for the proposition that an investigative power should not be exercised after proceedings had been brought against the person subject to the investigation: Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; The Melbourne Steamship Company Ltd v Moorehead (1912) 15 CLR 333. 257 In the first case, the Court considered s 15B of the Australian Industries Preservation Act 1906 (Cth) which empowered the Comptroller-General of Customs to require 'any person to whom he believes to be capable of giving any information in relation to the alleged offence to answer questions and produce documents in relation to the alleged offence'. 258 The Comptroller-General sought to exercise that power by requiring the respondent company and its manager to answer questions. Both the respondent company and its manager refused to answer the questions and they were charged on Information. 259 One of the questions before the Court was whether the section, which empowered the Comptroller-General to require persons to answer questions and produce documents, was itself unconstitutional and invalid because it was an improper vesting of the judicial power of the Commonwealth in the Comptroller-General. 260 In his judgment, O'Connor J said, at 379: 'When the Comptroller makes his requirement under section 15B there can be no proceeding pending in a Court. He is not empowered to use the section with reference to an offence when once it has been brought within the cognizance of the Court.' 261 In the second case, the same section was under consideration in different circumstances. In that case, the Attorney-General had instituted a prosecution under the Australian Industries Preservation Act 1906-1909 (Cth) against several defendants, not including the appellants. 262 Whilst those proceedings were pending, the Comptroller-General asked questions of the appellants relating to agreements, arrangements or understanding between the appellants and the defendants to those other proceedings. 263 Griffiths CJ said, at 341: 'In my opinion, when the Attorney-General has formally instituted a prosecution in this Court in respect of an alleged offence, the power as well as the purpose of s 15B is exhausted so far as regards the persons whom the Attorney-General alleges to have committed the offence for which he prosecutes, whether they are made parties to the suit or not.' 264 Barton J agreed with O'Connor J's dicta in the first case and said at 346: 'When the point has been reached at which the Crown institutes such proceedings in respect of the subject matter of the questions, there is no right in the Comptroller-General to institute such an inquiry. That subject matter has passed into the hands of the Courts alone.' 265 Isaacs J agreed that the Comptroller-General could not ask these questions of persons who had been charged but did not agree that the Comptroller-General's power was spent in respect of persons who had not been charged. 266 In the first case, the question which the Court addressed was whether or not the power given to the Comptroller-General was in fact a judicial power and therefore unconstitutional. O'Connor J read the section down so that, in his view, the section did not vest any judicial power in the Comptroller-General. 267 In the second case, the matter was one of statutory construction and whether, having regard to the existence of the power which was available to be exercised by the Comptroller-General, it could be exercised by the Comptroller-General against persons who were not parties to a prosecution already brought. 268 In Pioneer Concrete (Vic) Pty Ltd & Ors v Trade Practices Commission & Anor (1982) 152 CLR 460, the Court considered s 155 of the Trade Practices Act 1974 (Cth) which confers powers on the Commission or members of the Commission to require a person to appear before the Commission to give any evidence required by the Commission either orally or in writing and to produce documents. 269 Ro-Mix Concrete Pty Ltd brought proceedings against the appellants in the Federal Court of Australia alleging that the appellants had entered into and given effect to certain anti-competitive contracts, arrangements or understandings in contravention of s 45 of the Trade Practices Act. Ro-Mix applied for injunctions and damages. Whilst the proceedings were still pending, the Acting Chairman of the Commission served notices under s 155 on the appellants and three officers of the companies asserting that the appellants were capable of furnishing information and producing documents relevant to the matters and constituted or might constitute contraventions of s 45. Those matters were the same as were the subject of the proceedings instituted by Ro-Mix. The appellants brought proceedings against the respondents for declarations that the notices were not authorised by s 155. 270 Lockhart J held that, because proceedings were pending, the notices constituted an exercise of the judicial power of the Commonwealth and were an interference with judicial proceedings. The notices were therefore void. The service of the notices constituted contempt of court. 271 The Trade Practices Commission appealed and the Full Court of the Federal Court allowed the appeal. The appellants appealed to the High Court. Gibbs CJ rejected the appellants' argument that the power under s 155 confers judicial power upon the Commission as being untenable. He said, at 467: 'The inquiry in the present case is made for administrative purposes: to enable the Commission to decide whether there is sufficient evidence to enable it, or the Minister, to institute proceedings. Under s 155, the Commission can do no more than gather information; he cannot make a determination as to the facts, or apply the law to them, in any way that is binding, authoritative or coercive. The power given by s 155 is not a judicial power.' 272 In respect of the second argument that the power might in some cases be used to interfere with judicial proceedings, Gibbs CJ said at 467-468: 'I incline to think that if the power were used to assist a party in proceedings already pending, in a way that would give such a party advantages which the rules of procedure would otherwise deny him, there would be a contempt of court. As at present advised I would agree with the decision in Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182. However, not every investigation into facts which are the subject of pending proceedings constitutes a contempt of court: see Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 and the authorities there discussed. In the present case it was not shown that the person that gave the notice had any intention to interfere with the course of justice, or that there was a real risk that the exercise of the powers under s 155 would in the circumstances have that effect. The power is a drastic power and is capable of abuse and must be exercised with care. However, it was not shown that its exercise in the present case would amount to a contempt of court.' 273 Mason J agreed that the power conferred under s 155 was not an exercise of judicial power or incidental to that power. He addressed the alternative argument that the exercise of the power under s 155 could interfere with the judicial process. He said that whilst s 155 does not itself address the questions of contempt of court, it should be read as not authorising the Commission to commit a contempt. He accepted that there may be some cases where the exercise of such a power might interfere with the judicial process and might therefore amount to a contempt of court. He held that this was not one of them. 274 In Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, the Court was concerned with the power given to the appellant under s 29(2)(a) of the Clean Waters Act 1970 (NSW) which empowered an authorised officer to require 'the occupier of any premises from which pollutants are being or are usually discharged into any waters to produce to that authorised officer any reports, books, plans, maps or documents relating to the discharge from the premises of pollutants into the waters …'. The respondent was charged before the Land and Environment Court with offences under the Clean Waters Act. After the charge had been laid, the prosecutor served on the corporation a notice under s 29(2)(a) requiring the production of documents relating to the offences. 275 The High Court held that the privilege of self-incrimination does not apply to corporations. 276 Mason CJ and Toohey J, having found that the privilege of self-incrimination does not apply to corporations then turned their attention to s 29(2)(a) of the Clean Air Act and said, at 507: 'Once it is accepted, in conformity with the view we take, that by resort to the court's own process in the form of a notice to produce it is possible to compel production of the information sought during the currency of the proceedings, we see no persuasive reason for construing s 29(2)(a) restrictively so that it becomes subject to a limitation which is not applicable to the notice to produce. As the court's own process can be used to compel production, resort to the statutory power for the same purpose cannot amount to an abuse of process.' 277 Brennan J said there could be no abuse of a Court's process by a party taking advantage of a legitimate means of obtaining evidence to be used in pending litigation. 278 McHugh J said at 557: 'It is not open to doubt that a notice may be issued under s 29(2)(a) for the purpose of obtaining evidence to support a prosecution under the Clean Waters Act. Nor is there any reason to suppose that the power cannot be used to obtain evidence to support the prosecution of an offence under the State Pollution Control Commission Act. Nothing in the terms of s 29(2)(a) suggests that the power conferred by that provision to obtain evidence against a person is spent once proceedings against that person have been commenced. Why then should there be read into the statutory provision the limitation that the power can never be used after the commencement of a prosecution?' 279 He said at 558-559: 'Obtaining evidence under a statutory power for the purpose of assisting a party in pending litigation does not necessarily constitute an interference with the procedures of the courts. The evidence gathering procedures of a party are not limited to the use of court procedures. No interference with the process of the courts or the course of justice occurs merely because a party avails itself of a statutory power to obtain evidence during the course of pending litigation. The mere use of such a power during the pendency of litigation is not a contempt of court even when the sole purpose of the exercise of the power is to assist a party to obtain evidence for use in that litigation. To constitute a contempt, the party must exercise the power in such a way that it interferes with the course of justice. Thus, there might be a contempt if the exercise of statutory power "would give such a party advantages which the rules of procedure would otherwise deny him". Something more is required than that the party exercise the power for the purpose of obtaining evidence for use in pending litigation.' 280 The power given the authorised officer under s 83BH of the Act is not a judicial power but an administrative one for the purpose of gathering evidence to determine, in a case such as this, whether there has been compliance with or a contravention of Part XA of the Act. If it is thought that there has been such a contravention and if it is thought that a prosecution should follow, the evidence which is gathered by the s 83BH procedure will be available to support the prosecution case. The respondents did not argue, correctly in my opinion, that s 83BH was invalid because it vested a judicial power in the authorised officer. He argued that, because the penalty proceedings had been brought, the power given under s 83BH is spent. 281 It is to be noted that, in the end result, the parties to the penalty proceedings are both different parties to these proceedings. The prosecutor is a different party and the respondent is the State of Victoria. However, the respondent would argue, that is a distinction without a difference. A prosecutor is another officer appointed under the Act for the purpose of bringing the proceedings. The State of Victoria is the employee of the respondent in these proceedings. I think it would be appropriate then to proceed upon the basis that, for all intents and purposes, the parties are the same to both proceedings. 282 The State of Victoria has no privilege against self-incrimination. Indeed, because of the provisions of s 6(2), it cannot commit a criminal offence so it has no reason to enjoy a privilege. 283 There is nothing in s 83BH itself which suggests that the power is spent when proceedings for a penalty are brought against a party who cannot be guilty of a criminal offence. There is no reason to construe the powers given in s 83BH as being limited in exercise to a time immediately before the commencement of penalty proceedings. 284 Indeed, for the reasons given by the majority in Environment Protection Authority v Caltex Refining Co Pty Ltd, no such construction should be given. 285 I would accept that, if the appellant used this procedure for the purpose of interfering with the Court's process, he could be guilty of a contempt of court. Therefore, if he had made a request for documents, for that reason then he might be guilty of a contempt and the request would be an abuse of process. However, he made this request before the penalty proceedings were brought. 286 There is no suggestion that he made this request other than for the purposes contained in the section itself, that is, to investigate whether or not the State of Victoria had contravened Part XA of the Act. At the time he made the request it was clearly valid. When these proceedings came before the primary judge, the appellant was entitled to a declaration, in my opinion, in the terms sought. The request did not become invalid or spent by reason of the commencement of the penalty proceedings. In those circumstances, the appellant is entitled to the declaration. 287 No order was made by the primary judge as to costs. Nothing had been said on appeal in relation to the costs before the primary judge or on appeal. I would make no order as to costs. 288 I would make the following orders: 1. Appeal allowed. 2. The order of the primary judge dismissing the application is set aside. 289 I would declare: The respondent is required by s 83BH(4)(d) of the Workplace Relations Act 1996 to produce the documents described in paragraphs (A)(1)-(3), (B)(1)-(3), (C)(1) and (2)(a), (D)(1)-(5) and (E)(1)-(2) dated 10 October 2003 and headed 'Notice Pursuant to Section 83BH(4)(d) Workplace Relations Act 1996'. I certify that the preceding one hundred and ninety-three (193) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Counsel for the Appellant: Mr Richard Tracey QC with Mr Paul O'Grady

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Ms Kristine Hanscombe SC with Ms Rachel Doyle

Solicitor for the Respondent: Holding Redlich Lawyers