Plaintiff v Defendant

(a) Is DHS's power under s36(1)(f) limited to persons actually on the premises of the licensed children's service?

(b) To what extent does s36(1)(f) empower DHS to ask questions in respect of past events?

(c) Is ABC entitled to refuse to answer the questions and produce the documents on the basis of the protection against self-incrimination contained in s42?

(d) Can DHS use s36(1)(f) to require the provision of documents?

(e) Were the June and August letters properly addressed?

6 This proceeding does not require the court to consider what did or did not happen in the lift or fracture incidents. Nor does it concern the powers which DHS has to prosecute ABC under the Act in respect of any of the incidents. Its scope is limited to the validity of the June and August letters.

The statutory scheme and relevant provisions

7 The main purpose of the Act is to provide for the licensing and regulation of children's services. The Act contains provisions aimed at ensuring that licenses to operate children's services are only granted to fit and proper persons, that children are protected from hazards and not disciplined unreasonably, that adequate supervision is provided and that licensed premises are appropriately maintained. The regulations contain more detailed provisions about matters such as health and safety requirements, staffing numbers and qualifications, record keeping, and serious incident notification.

8 Enforcement is provided for in part 5 of the Act. Division 1 of part 5 contains specific enforcement powers, which will be considered shortly; those powers can be exercised by any person authorised by the Secretary of DHS pursuant to s35. Division 2 of that part contains DHS's powers in respect of services which are not complying with the Act. Division 3 creates certain offences and provides for procedures relating to enforcement.

9 The only powers of entry, search and seizure, inspection and questioning, which an authorised officer has under the Act, are those contained in ss36 to 38 inclusive.

10 Section 36 is headed "Powers of entry". Sub-section (1) of s36 is of critical importance to this proceeding and provides as follows:

An authorised officer may at any reasonable time, with such assistants as may reasonably be required, for the purpose of ascertaining whether this Act is being complied with -

(a) enter any premises where a licensed children's service is operating or where the authorised officer believes on reasonable grounds that a licensed children's service is operating;

(b) inspect the premises and any plant, equipment, vehicle or other thing used or suspected of being used in the provision of a children's service;

(c) take photographs or video recordings, or make sketches, of the premises or anything at the premises;

(d) inspect and make copies of, or take extracts from, any document kept at the premises;

(e) seize any document, record or any other thing at the premises used or suspected of being used in the provision of a children's service;

(i) to answer a question to the best of that person's knowledge, information and belief;

(ii) to take reasonable steps to provide information.

11 Sub-section (2) of s36 provides a procedure for handling documents, records or things seized under sub-section (1). Sub-sections (3) to (5) qualify the power of entry in respect of residential children's services.

12 Section 37 enables an authorised officer to apply to a magistrate for a search warrant in relation to particular premises, if the officer believes on reasonable grounds that an unlicensed children's service is being operated there. Such a warrant authorises the person to enter the premises and search for "any article, thing or material ... which there is reasonable ground to believe will afford evidence as to the commission of" the offence of carrying on an unlicensed children's service (s37(3)). No doubt the requirement to obtain a warrant from a magistrate reflects the fact that the power to enter and search the premises of somebody who is not a licensee is not one to be exercised lightly.

13 Section 38 provides a specific power of search and seizure at licensed premises, which does not require any application to a magistrate. If an authorised officer has reasonable grounds for suspecting that there is on licensed premises "a particular thing that may be evidence of a commission of an offence against this Act", the authorised officer may exercise the powers under s38. The powers conferred include: the power to enter the premises and search for the thing (s-s(2)); if the thing is found, to inspect and take photographs or video recordings, or make sketches, of the premises or thing (s-s(3)(a)), and to seize the thing if the officer believes on reasonable ground that it is necessary to seize it in order to prevent its concealment, loss or destruction (s-s(3)(b)).

14 There is a specified procedure for either retaining as evidence, or returning, things seized under either s37 or s38 (s39 and s40).

15 If the Secretary of DHS is satisfied that a children's service is not operating in accordance with the Act, the Secretary may, by notice in writing, direct the proprietor of the service to take the steps specified in the notice (s43(1)). If the proprietor fails to comply with the notice within 14 days after service, the Secretary has power to suspend the licence and direct the service to cease operating (s43(2)).

16 Section 42 is another important provision in this case:

It is a reasonable excuse for a person to refuse to answer an authorised officer's questions or produce information to an authorised officer if the requirement is made by the authorised officer for the purpose of determining whether the first-mentioned person has committed an offence.

17 Section 46 (in division 3 of part 5 of the Act) creates a number of offences relating to enforcement, including the following:

(a) without reasonable excuse, obstruct an authorised officer in exercising his or her powers under this Act; or

(b) refuse to answer a question lawfully asked by an authorised officer or to produce a document lawfully required by an authorised officer; or

(c) knowingly make any false or misleading statement in any application or request to the Secretary ...; or

(d) without lawful authority, destroy or damage any notice or document given or prepared or kept under or in accordance with this Act; or

(e) ...

Is the power conferred by s36(1)(f) limited to persons actually on the licensed premises?

18 The June and August letters were addressed and sent to ABC's head office in Queensland. They did not involve a request to any person at the East Melbourne or Bendigo centres. ABC argues that they are therefore beyond power, because an authorised officer may only require a person to answer a question or provide information if that person is actually on the licensed premises at the time of the request. DHS disputes that and says that s36(1)(f) empowers an officer to require any person at any place to answer a question or take reasonable steps to provide information for the permitted purpose.

19 Both sides made submissions as to parliament's presumed intention, based on competing policy considerations. On the one hand, DHS stressed the undoubted importance of protecting young children from harm; it argued that parliament must be presumed to have intended that DHS officers have the widest possible powers to achieve that end. On the other hand, ABC argued that parliament cannot have intended to allow an authorised officer to require a person who is not on the premises (for example, somebody living in a neighbouring house or walking down the street) to answer questions or take reasonable steps to provide information, upon threat of prosecution for a breach of s46(b) if they fail to comply. At the end of the day, the court has to try to glean parliament's intention from the words of the statute and any permissible extrinsic materials.

20 Most of the powers under s36(1) are expressed as things which may be done at "premises". But s36(1)(f) itself contains no such reference. Is the sub-section nevertheless restricted to requesting answers or information at the premises at which the children's service is operating or believed to be operating? To answer that question, it is necessary to look at the contents and structure of s36(1).

21 Sub-section (a) empowers an authorised officer to "enter any premises where a licensed children's service is operating or where the authorised officer believes on reasonable grounds that a licensed children's service is operating." This power of entry would be of little utility unless accompanied by one or more of the other powers in s36(1).

22 An authorised officer may take photographs or video recordings or make sketches "of the premises or anything at the premises" (s-s(c)), and inspect or make copies of or extracts from any document kept "at the premises" (s-s(d)). "The premises" are not defined or identified within those sub-sections; the only sensible construction is that the premises are those which have been entered pursuant to sub-section (a).

23 Sub-section (b) empowers an authorised officer to "inspect the premises and any plant, equipment, vehicle or other thing used or suspected of being used in the provision of a children's service." Sub-section (e) empowers such an officer to "seize any document, record or other thing at the premises used or suspected of being used in the provision of a children's service." In both sub-sections, the expression "used or suspected of being used..." must be a reference to the object which is to be inspected or seized, and "the premises" must be a reference to those which have been entered pursuant to sub-section (a). If "used or suspected of being used..." was intended to be a reference to the premises, rather than the object, there would be no obvious reason to have chosen wording which differed from s-s(a).

24 This analysis shows that sub-sections (a) to (e) should be read as follows: an authorised officer may enter the relevant premises pursuant to sub-section (a) and, whilst there, do any one or more of the things permitted by sub-sections (b) to (e). That structure tends to suggest that the power in sub-section (f) is simply another power to be exercised at premises entered pursuant to sub-section (a).

25 Section 36 is headed "Powers of entry". As the Act was passed before 1 January 2001, such a section heading does not form part of the Act.[1] Nevertheless, the heading may be considered as an aid to interpretation.[2] The use of the word "entry", rather than a broader concept such as "investigation", tends to support the conclusion that all of the powers granted by s36(1) are restricted to premises.

26 Similarly, the explanatory memorandum to the Children's Services Bill 1996 notes that clause 36 "gives powers of entry and inspection to an authorised officer in relation to a licensed children's service." There is no suggestion of a broader investigative power of the type contended for by DHS.

27 The narrow construction is also supported by the following extract from one of the speeches given during the second reading debate in the Legislative Council[3]:

The department is being given greater powers to investigate breaches of the Act. Those powers include: the searching of premises; the seizure of documents and materials; questioning, interviewing and investigating people who are on site; and determining if and what breaches may have occurred.[4]

28 There is nothing in the extrinsic materials to suggest that parliament intended that DHS officers could require questions to be answered and information to be provided by persons not on the licensed premises.

29 Elsewhere in the Act, parliament has made it clear when a power can be exercised in writing, and not in person, for example, by referring to "a notice in writing".[5]

30 Finally, s41 of the Act provides that an authorised officer may not exercise any of the powers under division 1 of part 5 (which includes s36) if she or he fails to produce, on request, her or his identity card "for the inspection by the occupier of the premises." One might ask rhetorically: how could s41 be complied with, if an authorised officer could ask a question by mail, e-mail or over the telephone? The concept of "inspection by the occupier of the premises" would be equally meaningless in the case of a person strolling down the street past a child care centre, who may have seen or heard something at the centre. The terms of s41 provide further support for the argument that the power in s36(1)(f) is one to be exercised at the licensed premises and not at large.

31 If parliament wishes to give DHS officers broad powers to interrogate any person, no matter who they are or where they are located, orally or in writing, with the threat of prosecution under s46 if they fail to respond, it must do so in clear and unambiguous language.

32 Because the requests contained in the June and August letters were not made to a person at the relevant premises, I conclude that they do not involve a valid exercise of the power conferred by s36(1)(f). That is a sufficient reason for granting ABC the relief which it seeks.

Alternative arguments

33 Notwithstanding that conclusion, I gave considerable thought to the question of whether I should make findings in relation to ABC's alternative arguments, because they raise matters of general importance. However, the more time I spent analysing the alternative arguments, the more convinced I became that the relevant portions of the Act are poorly drafted. Furthermore, my analysis threw up issues on which the parties had not addressed me.

34 Sections 36(1)(f), 42 and 46(b) all concern the power of an authorised officer to ask questions or require the production of something under the Act. Reading them together is not easy, for a number of reasons. I will give one example.

35 An authorised officer's only power to require someone to answer a question is that contained in s36(1)(f)(i); that is clearly the questioning envisaged by both s42 and s46(b).

36 But the position is far less clear regarding information. Although s42 uses the expression "produce information", an authorised officer's only power to obtain "information" is the power in s36(1)(f)(ii) to require a person to "provide information". "Produce" and "provide" are sufficiently similar in meaning that nothing seems to turn on those different words. But why have different words been used?

37 The real problem comes in trying to reconcile s46(b), which makes it an offence to refuse to produce "a document", with s36(1)(f)(ii) and s42, which refer to the provision or production of "information". This issue is relevant if one considers the alternative argument that s36(1)(f)(ii) does not entitle DHS to call for the production of documents which are not on the licensed premises.

38 "Information" is not defined in the Act. Its ordinary or natural meaning is of knowledge communicated or received concerning some fact, subject, event or circumstances.[6] Although it may be conveyed in written form, information is not itself a physical object. On the other hand, a document is a physical object, capable of being inspected, seized, held, copied and destroyed. Read in isolation, I would doubt that s36(f)(ii) empowers an authorised officer to require the production of documents.

39 That conclusion is strengthened when one looks at the language used elsewhere in the Act. The legislature has specifically used the word "document" elsewhere in s36. An authorised officer may inspect, make copies or take extracts from "any document" kept at the premises (s36(1)(d)), or seize any "document, record or other thing" at the premises (s36(1)(e)). If a document, record or thing is so seized, s36(2) imposes certain obligations on the authorised officer in relation to the "document or thing". By contrast, in s36(1)(f)(ii) the legislature has chosen not to refer to a "document" or other physical object. Read in isolation, I would presume that the different words in s36(1) were chosen intentionally and would give effect to that legislative choice. It would follow that an authorised officer would not have power to compel the production of documents by s36(1)(f)(ii).

40 But such a conclusion seems to sit uncomfortably with s46(b), which makes it an offence to refuse to "produce a document lawfully required by an authorised officer". What is the source of an authorised officer's power to lawfully require somebody to "produce a document"? The powers of inspection, copying and seizure of documents contained in ss36(1)(d) and (e) do not appear to require a person to produce documents to the authorised officer; it seems that the officer can exercise those powers without any co-operation from a person on the premises. Similarly, the search powers in s37 and s38 do not require a person on the premises to "produce a document". That seems to leave s36(1)(f)(ii) as the only possible source of an authorised officer's power to lawfully require somebody to "produce a document". If that is correct, then "information" in s36(1)(f)(ii) must mean or include "document", contrary to my earlier analysis. Although I was addressed in relation to the interpretation of s36(1)(f)(ii), no attempt was made to reconcile it with s46(b).

41 This is just one example of the many problems one experiences in trying to construe the relationship between ss36(1)(f), 42 and 46(b). However, because it is clear that the requests contained in the June and August letters were beyond power, it is not necessary to resolve the alternative arguments.

42 I will hear from the parties as to the precise form of orders and as to costs.

[1] Interpretation of Legislation Act 1984, s36(2A),(3).

[2] Interpretation of Legislation Act 1984, ss35(b), 36(4).

[3] Hon. M M Gould MLC, 30 October 1996, at p446 of Hansard.

[4] Emphasis added.

[5] For example, ss14(1), 43(1).

[6] See for example Macquarie Dictionary, 4th edition at p730; Oxford English Dictionary, 2nd edition, vol vii at p944.