Sunbuild's inconsistency or repugnancy argument is rejected
72 Before turning to identify the features of the context and purpose of Part 3-4 of the FWA that are pertinent to the construction of ss 501 and 502(1), it is convenient to deal first with Sunbuild's inconsistency or repugnancy arguments (see [13] above). It is apt to begin that consideration with the broad purpose of the FWA. Section 3 of the FWA states that its object or purpose is, in part, to provide a framework for workplace relations that, among other things, provides "… workplace relations laws that are fair to working Australians, are flexible for businesses, [and] promote productivity and economic growth for Australia's future economic prosperity …". The constitutional foundations for the FWA are contained in the definitions of the critical expressions in, among other sections, ss 12 to 14 inclusive. Substantially similar provisions to those were considered and upheld by the High Court in the Work Choices case.
73 The application of the FWA is set out in Part 1-3, the main operative provisions of which are ss 26 and 27. Section 26 makes it clear that the FWA is intended to "cover the field" to the exclusion of the State or Territory industrial laws defined in subs 26(2). However, in relation to the matters set out in s 27 of the FWA, the States and Territories are permitted to make laws which are intended to operate interactively with the laws of the Commonwealth. Occupational health and safety is one of those matters. Relying upon that warrant, the Northern Territory Legislative Assembly passed the WHS Act. In doing so, it used the national Model OHS law that had been adopted by the Commonwealth and most of the States and Territories (see [59]-[60] above). In that process, the Northern Territory Legislative Assembly obviously could not make laws dealing with industrial matters, or employment generally, as its power to do so is expressly excluded by s 26 of the FWA (cf the observations in the Work Choices case at [51]) and that limitation is reinforced by s 53 of the Self-Government Act. I should interpolate that there is no suggestion in this matter that any of the provisions of the WHS Act strays into any of those excluded areas.
74 Nonetheless, the paramount position of the Commonwealth Parliament in relation to industrial matters, elucidated above, makes it incontrovertible that the Commonwealth retains the exclusive power to make whatever industrial laws it considers are appropriate. Permitting the States or Territories to make laws on occupational, health and safety matters under s 27(2)(c) of the FWA does not, in my view, affect this paramount position, whether that relates to occupational, health and safety matters, or industrial law matters generally. It necessarily follows that, if the Commonwealth Parliament chose to make such laws in a way that gave rise to a relevant inconsistency or repugnancy with a law made by the Northern Territory Legislative Assembly - even the Northern Territory's WHS Act - then clearly that law would give way to the Commonwealth law: see the various authorities cited in Rockman at [18]-[24].
75 However, it is unnecessary to consider that issue in this matter because neither s 260 of the WHS Act, nor any other provision of that Act pointed to by Sunbuild, falls into that category. Sunbuild did not (and could not) argue that s 260 of the WHS Act operated to prevent Mr Ramsay bringing proceedings under s 539 of the FWA. If it had, that may have given rise to the second of the three classes of inconsistency discussed by Gummow J in Momcilovic: see at [238]-[245], particularly at [242] and [243]. Since that argument was not put, this is not a situation such as arose in GPAO where a provision of a Northern Territory law had a direct effect on a provision of a Commonwealth law. In that case, a provision of the Community Welfare Act 1983 (NT) was relied upon by the manager of the Child and Family Protective Services unit within the relevant Northern Territory government department to refuse to produce documents under a subpoena issued by the Family Court of Australia under the Family Law Act 1975 (Cth) and Rules. In this respect, I should add that Sunbuild also did not argue that s 79 of the Judiciary Act 1903 (Cth) had any relevant effect on s 260 of the WHS Act, or on this issue more generally. Nor is this a situation where a Commonwealth Act has expressly modified the terms of a Northern Territory law, as happened in Rockman. Instead, the provisions of Part 3-4 of the FWA were intended to add requirements to those in the WHS Act without otherwise affecting them. This is confirmed by the Explanatory Memorandum to the Bill for the FWA. There, Division 3 of Part 3-4 was said to impose "additional requirements on permit holders exercising a right of entry under State or Territory OHS legislation", whilst not overriding those rights, but expressly saving them: see at [12] above.
76 Instead, at its highest, Sunbuild's case is that, on Mr Ramsay's interpretation, there is a disharmony or clash between the provisions of s 260 of the WHS Act and s 539 of the FWA that is said to give rise to a relevant inconsistency or repugnancy. That is said to arise essentially because the former provision does not allow someone in Mr Ramsay's position to bring proceedings for a contravention of the applicable provisions of the WHS Act, whereas the latter does for a contravention of the corresponding provisions of the FWA. For the reasons set out below, this characterisation of the relationship between the apposite provisions of these two pieces of legislation is, in my view, erroneous. Nonetheless, even if this disharmony or clash did amount to a relevant inconsistency or repugnancy between the FWA and the WHS Act, two things are relatively clear. First, the provisions of Part 3-4 of the FWA that are in contention in this case could not be characterised as laws dealing with OHS matters. Instead, as ss 6(1) and 6(5) of the FWA state (see at [28] and [29] above), and as the title to Part 3-4 clearly implies, they relate to a particular industrial matter, viz the rights of union officials to enter work premises. That this is, by nature, an industrial matter is apparent from the provisions of s 26(2)(f) of the FWA (see at [34] above). This analysis helps explain why the WHS Act defers to the FWA on this matter by provisions such as ss 124 and 133 (see at [67] above). It would therefore follow from the reasoning set out above (at [74]) that, in this situation, the provisions in Part 3-4 of the FWA would prevail. Secondly, I agree with Mr Friend's submissions that, in the present circumstances, there is no basis upon which the provisions of the WHS Act could be used to construe the provisions of the FWA. This is so, in my view, even though the WHS Act is a part of the national Model OHS law scheme of which the Commonwealth is a part, evidenced by the fact that it has itself passed the national Model OHS law through the Commonwealth Parliament: see at [59]-[60] above. On this aspect, it is worth adding that Sunbuild does not suggest there is any relevant disharmony or clash between the provisions of the FWA and those of the Work Health and Safety Act 2011 (Cth), nor between the provisions of the latter and the WHS Act.
77 More fundamentally, I do not consider this so-called disharmony or clash amounts to a relevant inconsistency or repugnancy in the sense discussed in the authorities on this issue. All that has happened in the apposite provisions of these two pieces of legislation is that each Legislature has provided a different system for the enforcement of what are, essentially, procedural provisions within each relating to the rights of entry to premises by union officials. They are procedural provisions, in my view, because they only apply to the enforcement of a civil penalty provision under the WHS Act, or a civil remedy provision under the FWA. Moreover, neither has any application in relation to proceedings for the substantive offences under the WHS Act that are set out in Part 2 Division 5 (ss 30 to 34 inclusive). For those offences, the applicable enforcement provisions are those set out in Part 13 Division 1 (ss 230 to 233). If the FWA and the WHS Act had created different norms of conduct, criminal procedures, or levels of penalties, in relation to those offences, then that may have required a consideration of the issues discussed in Momcilovic. However, that is not the situation here.
78 The significant differences between the two systems of enforcement for these procedural provisions are as follows. First, as is noted above at [68], ss 144 to 146 of the WHS Act include unreasonableness as an element of the contravention. There is no such element in the contraventions described in ss 500 to 502 of the FWA. Secondly, s 144(2) of the WHS Act places a reverse evidential burden on the accused to show he or she had such a reasonable excuse. There is no similar reverse onus in s 501 of the FWA. Finally, there is a significant difference between the time limits set for the bringing of contravention proceedings. Section 544 of the FWA fixes that time limit at six years after the day on which the contravention occurred, whereas s 261 of the WHS Act fixes it at two years.
79 These different systems for the enforcement of the civil penalty, or civil remedy provisions of these two pieces of legislation operate as separate systems not having any obvious effect on the other, apart from the fact that the conduct constituting a contravention of both is similar, but importantly, not the same. Each Legislature has therefore chosen to adopt a different set of procedural rules which create some advantages and some disadvantages. Within this setting, I consider the difference between the right to bring proceedings under s 539 of the FWA and the limitation in s 260 of the WHS Act, falls into the same category. For these reasons, I do not consider there is any merit in Sunbuild's argument that any disharmony or clash between these provisions of these two pieces of legislation (if it exists at all) gives rise to any relevant inconsistency or repugnancy.
80 Finally, on this aspect, it is necessary to deal with the submissions about the effect of ss 267 and 263 of the WHS Act. First, turning to s 267 of the WHS Act (set out at [69] above), for the reasons given above, I do not consider that provision could have any impact on the construction of any of the provisions of the FWA. Even if it could, Sunbuild did not point to any corresponding provision of the FWA whose construction might be affected by it. It is therefore unnecessary to determine whether that provision only applies to the enforcement of the civil penalty provisions in the WHS Act, or to a right of action in civil proceedings more generally. As to s 263 of the WHS Act, while it, too, could not be used in construing the provisions of the FWA, there is merit in the argument put on behalf of Mr Ramsay that this provision supports his position that the WHS Act effectively acknowledges the existence of these independent but parallel systems for the enforcement of the civil penalty, or civil remedy provisions, of the WHS Act and the FWA respectively. In this respect, I reject Mr Wyvill's argument that s 263 of the WHS Act is solely directed to avoiding double jeopardy in proceedings for contraventions of the equivalent Model OHS laws in force in other jurisdictions. Specifically, the reference to "an Act of the Commonwealth" would, in my view, clearly encompass both the provisions of the Work Health and Safety Act 2011 (Cth) and the FWA.