Rodney Morrison v Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd.

Occupational Health and Safety Act 1983 s 15(1) s 16(1) s 48(1)(a) Occupational Health and Safety (Administration) Regulation 1992 LEGISLATION CITED : Supreme Court (Summary Jurisdiction) Act 1967 4(1) Common Law Procedure Act Criminal Procedure Act s 55 Public Sector Management Act 1988 s 12 Barton v Croner Trading Pty Ltd (1984) 3 FCR 95 Bedingfeld v Keogh (1912) 13 CLR 601 at 604 Beckwith v R (1976) 135 CLR 569 at 576 Berwin v Donohoue (1915) 21 CLR 1 25 Brebner v Bruce (1950) 82 CLR 161 Bruce v Jarrett (1926) SASR 96 Callahan v WorkCover Authority of NSW (1996) NSW IRC 47 Dever v Creevy ex parte Creevy (1992) 1 Qd.R 232 Ex parte Smith (1918) 35 WN (NSW) 54 Ex parte Stuart re Mead and ors (1930) 47 WN (NSW) 60 Ex parte Wright Heaton and Co (1895) Vol. X11 WN (NSW) 25 Gilmour v Bastian (1917) 24 CLR 14) Gilmour v Bastian (1918) 34 WN (NSW) 239 Gilmour v Midways Springwood Pty Ltd (1980) 3 A.Crim.R 197 Gouriet v Union of Post Office Workers [1977] 3 WLR 300 at 310 Holland v Jones (1917) 23 CLR 149 Kemp John Graham v Gough and Gilmour Holdings Pty Ltd NSW CCA (unreported 14 February 1995) CASES CITED : McConnell Dowell Constructions (Aust) Pty Ltd v Environmental Protection Authority [2000] NSWCCA 367 at paragraph [11], McDonnell v Smith (1918) 24 CLR 409 MacCarron v Coles Supermarket Australia Pty Ltd (2001) 23 WAR 353 at [34] Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 per Brennan J at 610 Price v Humphries [1958] 2 QB 353, Project Blue Sky Inc. & ors v Australian Broadcasting Authority (1998) 194 CLE 355 [69] at 381) Re Water and Sewerage Employees - Wages Division (Metropolitan) Award and ors. (1983) 4 IR 67 at 72 Rabczynski v Morrison (1988) WAR 71 R v Bacon (1973) 1 NSWLR 87 R v Turner [1910] 1 KB 346 R v Waller (1910) 1 K.B. 364 367 Shulz v Virgin (1966) SASR 94 Thompson v Goold & Co [1910] AC 409 at 420) Thompson v The Queen (1989) 169 CLR 1 Traveland Pty Ltd v Doherty (1982) 63 FLR 41 at 46 Turner v Tsaousis (1974) 7 S.A.S.R 408,

HEARING DATES: 05/10/2002 DATE OF JUDGMENT: 06/11/2002

PROSECUTOR: Ms A Katzmann SC with Mr M Cahill SOLICITORS: Mr G Henderson PricewaterhouseCoopers Legal

DEFENDANT: (Dartbrook Coal Pty Ltd) Mr R J Buchanan QC with Mr M Shume SOLICITORS: LEGAL REPRESENTATIVES: Mr G McCann Sparke Helmore

DEFENDANT: (Tecrete Industries Pty Ltd.) Mr B Hodgkinson SC SOLICITORS: Mr R Walker Clayton Utz

JUDGMENT: - 52 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No. IRC 2262 of 2001 Rodney Morrison v Dartbrook Coal Pty Ltd. Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 Matter No IRC 2263 of 2001 Rodney Morrison v Tecrete Industries Pty Ltd. Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2000] NSWIRComm 127

1 On 27 March 2001, Rodney Morrison, the Assistant Director of Performance Improvement at the Department of Mineral Resources, filed applications for orders under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 supported by affidavits seeking to bring proceedings against Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd for offences under s 16(1) and s 15(1) respectively of the Occupational Health and Safety Act 1983. In each application for an order Mr Morrison stated he was "… a person who has received the written consent of the Director General of the Department of Mineral Resources to institute this prosecution under s 48 of the Occupational Health and Safety Act 1983 …". In each supporting affidavit Mr Morrison stated in paragraph 1: I am the Assistant Director of Performance Improvement at the Department of Mineral Resources and empowered under s 48 of the Occupational Health and Safety Act, 1983, to institute proceedings in this matter. 2 Section 48 of the Act is in the following terms: Authority to prosecute 48(1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) with the written consent of the Minister or a prescribed officer; or (b) an inspector; or (c) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate. (2) In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by the Minister or a prescribed officer, shall be evidence of that consent without proof of the signature of the Minister or prescribed officer, as the case may be.

3 By separate notices of motion, each defendant challenges the validity of the proceedings and seeks an order that the prosecution against them be dismissed or, alternatively, that the prosecution be permanently stayed. Dartbrook Coal seeks a declaration that the memorandum dated 20 March 2001 with its accompanying notation was not written consent to the prosecutor, Mr Rodney Morrison, to commence the prosecution. The grounds and reasons in support of the motion were stated to be that the prosecution was invalidly commenced and that the prosecutor (Rodney Morrison) did not possess the written consent of the prescribed officer, being the Director General of the Department of Mineral Resources, at the time the proceedings were instituted pursuant to s 48(1)(a) of the Occupational Health and Safety Act. Accordingly, the motion asserted that Mr Morrison as prosecutor was unable to prove the essential elements of the alleged breach of s 16(1) of the Act. In the alternative, the grounds stated that there should be a permanent stay for abuse of process as Mr Morrison as prosecutor did not possess the written consent of the prescribed officer at the time the proceedings were instituted pursuant to the provisions of s 48(1)(a) of the Act, and by failing to have such written consent at the time of instituting the proceedings, the prosecutor was unable to prove his case. As a further alternative, the declaration was sought because, it was stated, the prosecutor must be authorised to commence the prosecution either directly by the Act or by the Minister or a prescribed officer, and that approval of the institution of the prosecution by the Department of Mineral Resources did not constitute a written consent for an identified officer of the Department to institute proceedings as a prosecutor in his own name. The same orders were sought by Tecrete upon the same grounds.

4 It appeared to be common ground that the prosecutor, when filing the application for order on 27 March 2001, did not attach a copy of the written consent to his affidavit or otherwise disclose the terms of the written consent to which he referred in his application. At the callover, an order was sought and made that the prosecutor provide the defendants with a copy of the written consent within seven days. In response to that order, solicitors acting for the prosecutor provided a copy of what was claimed to be the written consent to institute proceedings dated 26 March 2001. That was the only document supplied in compliance with the order to provide the defendant with a copy of the written consent. The document supplied was a five page memorandum carrying the heading "Department of Mineral Resources" and underneath it the words "Confidential". Under the word "memorandum" appeared the words: "a matter considered by the Assessment and Review Committee on 19/3/2001". The memorandum was addressed to Alan Coutts, the Director General's Office - St Leonards and was stated to be from Rod Morrison, Convenor, Assessment and Review Committee. The subject was stated to be "fatal accident Raydon Rich, Dartbrook Colliery" and below that the following was entered - "a progress report on the prosecution against Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd". The document was dated 20 March 2001. The document gave background to the accident wherein Raydon Rich was killed whilst assisting in the task of installing crib roof supports in an underground coal mine. The document then dealt with various matters under the headings of "Coronial Inquest", "relationship between Dartbrook and Tecrete", "memorandum to Director General", "reference documents", "breaches", "matters considered in reaching decision" and "Recommendations". Under the heading "Breaches", a sub-heading dealing with potential breaches of legislation, Dartbrook Coal Pty Ltd is mentioned in relation to s 16(1) of the Act and Tecrete Industries Pty Ltd in relation to s 15(1) of the Act. The recommendation was in the following terms: The Committee recommends that the prosecution against Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd be initiated by the Department …

5 At the conclusion of the memorandum, immediately after the recommendation, appeared the type written word "approved". There was then a space and the name "A Coutts" and underneath it "Director General" also typed. The signature of Mr Coutts appeared immediately above his name and after the words "Director General" " appeared. The heading of the document, where it was directed to Mr Coutts, had the words "St Leonards" crossed out with what appears to be "AC 26/3" in handwriting beside it and the following line, which stated "From: Rod Morrison, Convenor, Assessment and Review Committee", had beside the word "from" a handwritten arrow. It was accepted by all parties that this meant the memorandum had been directed from Mr Coutts back to Mr Morrison.

6 There were significant proportions of the document which were blacked out under a claim for legal professional privilege made by the prosecutor. After considering the full entries in the document and the relevant case law, I was satisfied that the claim for legal professional privilege was properly made out.

7 From other evidence it appears that attached to the memorandum directed to Mr Coutts was a document which carried the words: A recommendation to proceed with the prosecution against Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd, subject to the advice of counsel. This document indicated that the undersigned members of the Assessment and Review Committee (of whom there were four) agreed to the recommendation made to the Director General. It is the adequacy of this memorandum signed and approved by the Director General which is central to the challenge raised by the defendants.

8 For the defendants, another memorandum was tendered addressed to Mr Coutts from Mr Morrison concerning the fatal accident at Dartbrook Colliery. This document, although dated 21 February 2001, is in very similar form to the memorandum dated 20 March 2001 which was signed by Mr Coutts and which is relied on by the prosecutor as constituting the authority to take the prosecution against the defendants. There are some differences in this memorandum. Paragraph 6, headed "Recommendations", stated: 6.1 The Committee recommends that a prosecution against Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd be initiated by the Department, … 6.2 The Committee recommends that provided 6.1 above is satisfied that a Statement of Facts be drafted, charges be filed and summonses issued by the Department. This action is recommended given that the statutory period for commencing a prosecution concludes on 31 March 2001. Again, parts of this document had been blacked out under a claim for legal professional privilege which was further considered and upheld during the course of the hearing on the notice of motion. This memorandum concludes with a hand written note signed by Mr Coutts and apparently dated 21 February 2001: "Report noted, approved to proceed in accordance with recommendation 6.1 and 6.2 above". Although large portions of this document were blacked out, it is apparent that approval had been given to continue with the preparation of charges so long as certain matters were satisfied. Those matters were not disclosed in the exorcised document but it seems clear from other portions of the document that they were legal requirements to be satisfied before the prosecution could be commenced.

9 The defendants also tendered Minutes of the Meeting of the Assessment and Review Committee held on 19 March 2001. That meeting was held in Mr Morrison's office in the presence of four Review Committee members. That meeting apparently dealt with a number of matters including the death of Raydon Rich at Dartbrook Colliery. Under this heading, apart from matters blacked out as being privileged, the following entries appeared: This matter is concerned with the death of R Rich and … . Legal advice from Mr M Cahill of counsel dated 13 March 2001 was tabled at the Committee … Outcome. The Committee confirms its earlier advice to recommend the prosecution of Dartbrook Coal Pty Ltd under s 16(1) and Tecrete Industries Pty Ltd under s 15(1) of the O H & S Act …The summons be redrafted by corporate counsel in the appropriate form for lodging with the Industrial Commission. A memorandum be prepared advising the Director General of progress in this matter. Also tendered for the defendants was a collection of documents numbering in excess of 60, which were examples of documents providing consent by the Director General to institute proceedings under the Occupational Health and Safety Act. Those documents invariably referred to s 48(1)(a) of the Act and stated that consent to institute proceedings by Mr Morrison against a named defendant under a particular section of the Act was thereby given. All these documents specifically named and authorised Mr Morrison to take the proceedings. These documents all appeared to have been signed during the course the year 2001 by the Director General.

10 Transcript of proceedings before Kavanagh J in April 2002, concerning evidence given by Mr Coutts on a related but different point as to authority to commence proceedings under the Act, was tendered by senior counsel for Dartbrook. In that case, the defendants raised the adequacy of the consent to prosecute moving from the basis that the prosecutor was obliged to prove consent. An issue in that case about the nature of the onus cast upon the prosecutor does not directly arise in the present proceedings. Another issue was the width of the apparent consent given by the Director General to Mr Morrison to commence proceedings under the Act which led the prosecutor to rely, at least in part, upon an internal memorandum containing an approval by Mr Coutts as Director General of the Department. The defendants in that case sought to cross-examine Mr Coutts and Mr Morrison about the course of events leading up to the prosecution being initiated, and it was said that a further issue arose as to whether there was any authorisation for Mr Morrison to be the person who would institute the proceedings. The authorisation relied upon, even if accepted, would only authorise the Department to take some action, not Mr Morrison. It was on this basis that cross-examination of Mr Coutts took place and the transcript of the proceedings limited to his evidence was tendered in the present proceedings.

11 Mr Coutts was cross-examined on circumstances where he had given approval to prosecute even though a guideline for consultation prior to prosecution had not yet been complied with. Mr Coutts' evidence was that the state of the material he considered was such that he was satisfied that there should be a prosecution, although he was open to persuasion by the defendant: overall, his concern was that he was being pushed closer to the time limit for commencing proceedings and decisions therefore had to be made. Mr Coutts then heard what the defendant had to put, but finding no information to persuade him from the course he had determined, he reconfirmed that prosecution action should be taken. In the course of this answer, Mr Coutts gave the following evidence: In fact I make these decisions in every case of prosecutions that come before me, where with a report from the Assessment Review Committee, and there are a series of them, as far as I am concerned that is a decision point.

The consents for instituting proceedings were usually signed after Mr Coutts decided to launch a prosecution: often the documentation for consent was prepared for signature because his availability to sign documents was difficult to ascertain. It was the practice of the Department to have consent documents signed by Mr Coutts and have them signed before the prosecution was filed. Consents signed by Mr Coutts would leave his office, would go back to the legal branch and be made available to Mr Morrison as the prosecutor.

12 In relation to the form of consent, Mr Coutts gave the following evidence: We have a standard consent form. Since we have initiated prosecutions we have a standard consent form which is in this format. Once I have made a decision on the recommendation to prosecute, that allows the documentation to be initiated by our legal people, they will bring up for consent the process, the simple consent forms, which I will sign, they will go back to the legal branch to deal with as they see fit to deal with them. That is the standard form of a consent form.

Later, Mr Coutts added the following statement in his evidence: This was a somewhat unusual case because of the Premier's guidelines. Normally after me approving a decision of the Assessment and Review Committee and the lodging of the necessary documentation, there would be a consent form given to me to sign which would then attach to the relevant documents. 13 For the prosecution, affidavits of Mr Morrison and Mr Robert Regan were read. Mr Morrison stated that in August 1998 he was appointed to the position of Assistant Director, Performance Improvement, Department of Mineral Resources. In that position he had been responsible for convening the Assessment and Review Committee of the Department since its inception in September 1999. He described the Committee's responsibilities as including recommending prosecutions for breaches of the Occupational Health and Safety legislation to be approved by the Director General. Mr Morrison said that on 19 March 2001 the Committee, which was convened by him, considered the fatal accident involving Raydon Rich at Dartbrook Colliery. On 20 March, the Committee produced a memorandum to the Director General recommending prosecutions against Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd be initiated by the Department. That memorandum is the document referred to in paragraphs [4] and [5]. Mr Morrison said that on 26 March 2001 the Director General approved the recommendation to prosecute the defendants. Mr Morrison then gave evidence of the practice of the Department: The usual practice of the Department when the approval of the Director General has been obtained to prosecute a defendant under New South Wales Occupational and Health Safety Legislation is for me, in my capacity as Assistant Director, Performance Improvement, to institute proceedings. I have instituted prosecutions for the Department since the Committee's inception.

14 In his affidavit, Mr Regan stated that in October 1999 he was appointed to the position of Assistant Director, Safety Operations, Department of Mineral Resources, New South Wales. Approximately one week after his appointment he became a member of the Assessment and Review Committee of the Department. He described the Committee's responsibilities to include recommending prosecutions for breaches of New South Wales Occupational Health and Safety legislation to be approved by the Director General. Mr Morrison, Assistant Director, Performance Improvement, had been the convenor of the Committee since its inception in September 1999. He confirmed that on 19 March 2001 the Committee considered the fatal accident involving Raydon Rich at Dartbrook Colliery and that, on 20 March 2001, the Committee produced a memorandum to the Director General recommending prosecutions against the present defendants. He referred to the same memorandum as identified by Mr Morrison in his affidavit. Mr Regan noted that on 26 March 2001 the Director General approved the recommendation to prosecute. In relation to the Department's usual practice on prosecutions, Mr Regan stated: The usual practice of the Department when the approval of the Director General has been obtained to prosecute a defendant under New South Wales Occupational and Health and Safety Legislation is for Rodney Morrison as Assistant Director, Performance Improvement, to institute prosecution proceedings. Mr Morrison has instituted prosecutions for the Department since the Committee's inception.

SUBMISSIONS 15 For Dartbrook, it was submitted that summary prosecutions are commenced by, and in the name of, an individual. It was said that in summary matters prosecutions were notionally private and that there was a historical right, well recognised, whereby an individual wishing to see the law enforced could bring a private prosecution. In Gouriet v Union of Post Office Workers [1977] 3 WLR 300 at 310, the House of Lords described this as an historical role "which goes right back to the earliest days of our legal system". Thus, "Laws of Australia" (Volume 11.4, Chapter 3, paragraph 10) noted: Historically, prior to the development of police forces, the principal responsibility for law enforcement lay with private citizens. At common law, therefore, the general rule is still that any individual may file a charge alleging the commission of an offence against an enactment for the benefit of the public at large. The principal means of limiting private prosecutions are: statutory controls on who may initiate prosecutions under particular Acts; the requirement of the consent of a public official in certain cases; and, in the higher courts, the power vested in the Director of Public Prosecutions to take over and terminate prosecutions which were privately initiated. In summary matters, all prosecutions are notionally private, in that the police officer, or other public official, is acting as informant in a personal capacity in his or her own name and not, as in indictable offences, on behalf of the Crown. The informant, or his or her authorised representative, conducts the prosecution personally, or through counsel as though it were a private suit. The costs, which may be awarded to the successful informant who is acting in an official capacity (for example, police, municipal by-laws officers and other summary prosecutors), are paid to the agency for which he or she works. In relation to some summary offences, the legislature has limited the categories of persons who may file or lay a charge, information or complaint, thereby effectively excluding private prosecution. In other cases, the legislation nominates authorised informants without necessarily limiting private prosecutions.

16 Similarly, in Halsbury's Laws of Australia (Volume 9), paragraph 130 -13225, under the heading "Who can prosecute" the following entry appears: Subject to the statutory provisions which create the offence, any person can commence a prosecution if the breach of law is of a public nature. That right is not taken away except for express words of the legislation, and the fact that a person is specified as having a right to commence does not mean that no other person can. However, in some cases a prosecution for a particular class of offence cannot be commenced without the consent of the Attorney-General or some other designated public official. In some jurisdictions the Director of Public Prosecutions (the Director) exercises the power to consent to a prosecution by grant of that power by the Attorney-General. Where consent is required, it must be obtained before the information is laid.

17 Attention was also drawn to a judgment of the High Court in Brebner v Bruce (1950) 82 CLR 161. In that case, a police constable had laid a complaint under Regulation 63 of the Telephone Regulations which made it an offence to use objectionable, obscene or offensive language whilst using any telephone. The police constable did not obtain authority from the Postmaster General but reliance was placed on s 13 of the Crimes Act which provided that unless the contrary intention appears in the Act or regulation creating the offence, any person might institute proceedings for the summary conviction of any person in respect of any offence against a law of the Commonwealth punishable on summary conviction. In his judgment Fullagar J quoted from the judgment of Hood J (speaking for the court) in Steane v Whitchell (1906) V.L.R. 704, where his Honour said: … we may start with the proposition that, generally speaking, any person may be the informer, but sometimes the statute giving the penalty allows only particular persons to be informers. In the absence of sufficient indication to the contrary, if the penalty is given to the party aggrieved he must be the informer; or else it must appear that the information is laid at his instance, and if the enactment is framed solely and exclusively for the benefit of a particular body of persons, the information must be laid with the authority of that body of persons: Burns v Justice of the Peace (30th ed.), vol. i, p 1106, titled Conviction. The presumption thus being that any person may be the informant, we then look to the Statute imposing the penalty to see if there be any express or implied limitation. There are three classes of Statutes in the construction of which questions of this kind have frequently arisen. In the first class the fact the offence is of a public nature - Cole v Coulton (1980) 2 El & El 695 [121 E.R. 261]; Sargood v Veale (1891) 17 V.L.R. 660; Lizars v Sabelberg (1905) V.L.R. 608 - or that the Legislature has shown that it intended it to be dealt with as an offence of a public nature by providing that it be heard in the ordinary manner and before the ordinary tribunals (R v Stewart (1896) 65 L.J M.C. 83), has led the Court to the conclusion, in the absence of some fairly plain indication to the contrary, that any member of the public may prosecute. In the second class the destination of the penalties or the nature and description of the offence, as one in which only certain persons or bodies, or certain classes of persons are interested, has resulted in a decision that the information must not be in the name of any person other than one of those indicated. In these cases, if nothing more appears, the information must be laid or exhibited by, or must at least show on its face that it is laid at the instance and with the authority of the persons or one of the persons interested: …The third class differs from the second in that the Legislature has, by further or other provisions, shown an intention that an officer or employee, or it may be a person authorized for the purpose, may lay an information in his own name, though for the benefit of the person or persons interested" (at 173-174).

18 The general rule that a private individual may bring proceedings alleging a criminal offence must give way to statutory limitations. Thus in Bedingfeld v Keogh (1912) 13 CLR 601 at 604 Griffith CJ said: The general rule of law was stated by Kay L.J., in R v Stewart (1896) 1 QB 300 at 303, as follows:- Prima facie there is no doubt that anybody may take proceedings to recover a penalty. That is an old rule and is well established. The Act now under consideration in terms provides that penalties shall be imposed for certain acts, and that these penalties shall be regarded as though they were penalties incurred under the Summary Jurisdiction Act. In order to prevent the application of the general rule, it must be shown that the Act in plain terms prevents anyone, except certain specified persons, from prosecuting offences under the Act. I can find no such provision. Apart from that general rule of law, in New South Wales the Fines and Penalties Act 1901, by sec.4 provides that: 'any fine, from a penalty or forfeiture imposed or authorised to be imposed by any Act may be sued and proceeded for by any person whomsoever unless by the Act imposing the same such right to sue or proceed is expressly given to any officer or person by name or designation'. What is necessary to be established, therefore, is that the Pure Food Act expressly gives some particular person the right to sue. (at 604).

19 To similar effect was the judgment of Ferguson J in Gilmour v Bastian (1918) 34 WN (NSW) 239. That matter arose out of a municipal election where the point was taken that the prosecution had not been authorised by or on behalf of the council. His Honour expressed the view that the issue depended upon the provisions of the Fines and Penalties Act and then stated: So in every case where a penalty is imposed by an Act it is necessary to look at the Act to see first: whether the right to sue for the penalty is expressly given to any person, and secondly, whether the Act makes any specific direction for the appropriation of the penalty. Now, Section 191 of the Local Government Act provides that penalties imposed by the Act or ordinances, may be recovered in a summary way before any two justices. It says nothing about the person who may sue for a penalty, but it goes on to provide how the penalty shall be appropriated; it "shall, when recovered be paid to the council …". It follows the exact words of Section 5 of the Fines and Penalties Act; it uses the same expression, "when recovered, shall be paid". So that, if there were nothing else in question, it would be clear that as the right to proceed for the penalty is not expressly given to any person by name or designation it might be sued for by any person whomsoever, although no part of the penalty when recovered was to go to him. But it is contended that there are other sections in the Local Government Act by which the right to proceed for a penalty is expressly given to some person by name or designation. Section 193 has been referred to, but I do not think it touches this question. It assumes that the council has taken proceedings of some sort, and then simply makes the necessary incidental provision as to those proceedings … So I think the Fines and Penalties Act is conclusive on the question, and that this penalty may be recovered by any person who choses to proceed for it, although when it is recovered the amount is to be paid to the council (at 240-241). It is to be noted that the judgment was affirmed on appeal ( Gilmour v Bastian (1917) 24 CLR 14).

20 The terms of s 48 require the written consent to be given before the proceedings are instituted. This was said to be consistent with the judgment of the Full Federal Court in Traveland Pty Ltd v Doherty (1982) 63 FLR 41 at 46. The Full Court also noted that the sub-section there under consideration made no express provision as to the form the consent should take or as to the detail or particularity with which the proceedings must be identified. Similarly, in Ex parte Smith (1918) 35 WN (NSW) 54 Ferguson J dealt with an objection after conviction that the prosecution was not taken with the written consent of the Attorney-General or the Minister for Defence or a person authorised in writing by the Attorney-General or the Minister for Defence. In that case, there was no evidence that the prosecutor had the written authorisation of the Attorney-General or the Minister. In relation to the intention and operation of such a provision, Ferguson J stated: I think that the intention of the Act was to prevent unauthorised and possibly malicious proceedings by irresponsible persons. It has been contended that as the Act does not provide that the written consent must be given before the proceedings are instituted it is sufficient if the Attorney-General or the Minister for Defence adopts the proceedings at any time before the hearing. I think that would defeat the object of the section, and, in my opinion, the consent must be obtained before the prosecution is instituted. On appeal to the High Court, that approach was upheld in McDonnell v Smith (1918) 24 CLR 409. It is of interest that the court endorsed the cases referred to by Rich J during argument. Rich J is noted as stating that the necessity for getting the prescribed consent to a prosecution was a check on irresponsible persons who might heatedly, although from patriotic motives, institute proceedings. The mischief aimed at by the sub-section was the harassing of people by frivolous prosecutions. He then asked: "Must not the initial stage of the proceedings be sanctioned by some responsible person?" (at 411).

21 The approach in McDonnell and Smith was followed by Brennan J in Gilmour v Midways Springwood Pty Ltd (1980) 3 A.Crim.R 197. There, proceedings were brought pursuant to the Trade Practices Act with the consent of the Minister. The Minister had given consent to the institution of a prosecution specifying the offences to be prosecuted in the Statement of Consent which he signed. However, another offence was found in the Information. Brennan J said of this situation:

The difference may be of significance, for if the Minister has not consented to the prosecution of the offences alleged in the Information, the court has no jurisdiction to entertain proceedings and the prosecution must fail (Bates [1911] 1 KB 964 approved by Isaacs J in Berwin v Donohoe (1915) 21 CLR 1 at p 25). It would seem, on the authority of Berwin v Donohoe, that if the Minister's consent were expressed in quite general terms that would suffice. Where the Minister limits his consent, the limitation is one which the informant is bound to observe in the laying of the information.

22 In Ex parte Stuart; re Mead and ors (1930) 47 WN (NSW) 60, Halse Rogers J dealt with an objection where prosecutions for certain breaches of the Scaffolding and Lifts Act had been commenced by an Inspector who initially did not appear to have the consent of the Minister as required but who commenced subsequent proceedings and tendered a consent. However, that document bore no date and no evidence was tendered as to the date on which the authority was given. Of this situation his Honour stated: It is clear that the authority must be obtained before the institution of proceedings - that is before the laying of the information - and as there was no evidence that authority had been given at the date on which the information in these cases were laid there was a defect in proof of the case for the prosecution and the convictions cannot be sustained (at 61).

23 The case of Ex parte Wright Heaton and Co (1895) Vol. XII WN (NSW) 25 provides another example of the application of the principle referred to in the preceding paragraphs. There, the informant was the Inspector of Licensed Vehicles from the Borough of Orange and the then Chief Justice noted that the informant had not shown that he had any authority to prosecute. The object of the by-law under which he purported to move was that no one should commence a suit or lay an information unless directed to do so by the Council, the By-law Committee or the Mayor. While the informant's duties were to carry out the by-laws with respect to licensed vehicles, to see that licences were only issued to vehicles which were proper to be used for their particular work and to oversee other matters of a like kind, the mere holding of that office did not itself show that the Council thought him a proper person to be entrusted with the conduct of prosecutions. He may have had a general authority from the Council, the By-Law Committee or the Mayor to lay informations but there was no information either that he had such general authority or any special authority to prosecute the present case.

24 It was submitted that proof that the person who commenced the proceedings was competent to do so, is, if a question arises or a challenge is made, a matter for the prosecutor to establish in order to secure a conviction. Failure to prove authority to institute the proceedings will lead to a dismissal of the matter (Callahan v WorkCover Authority of NSW (1996) NSW IRC 47 especially at p 7).

25 In Shulz v Virgin (1966) SASR 94, Walter AJ was dealing with provisions of the South Australian Health Act which permitted proceedings to be instituted with the authority of the Central Board of Health or the local Board of Health for a particular district. The section provided that the authority could be either general or particular and may be proved by the production of the authority in writing under the hand of the Chairman or the Secretary of the Board. Walters AJ stated that clearly the intention of the legislature in enacting this provision was to restrict the operation of the general rule that any person may lay a complaint or information for an offence against a legislative provision for the benefit of the general public, independently of any authority from the party or parties to whom the penalties are to be awarded. Applying the judgment in McDonald v Smith, his Honour accepted that the initial stage of the proceedings must be sanctioned by some responsible person. In this case, no evidence was adduced either by the inspector or in any other way which established that he was authorised to institute the proceedings. His Honour expressed the view that it was not proper to ask the justices to take judicial notice of the fact that the inspector was the proper officer of the Board: in any event, the mere identification of the respondent as the inspector of the local board did not prove that he was the officer of the board, nor did it prove that he possessed the powers which might or might not have been conferred upon him by the board. It was not appropriate to apply a presumption of regularity in relation to the institution of such proceedings as might properly be applied in England, where the justices' clerk is ordinarily a person who has qualifications as a barrister or a solicitor of the Supreme Court and whose function it is to advise justices on points of law. Such persons were called upon to satisfy themselves that the proceedings were properly commenced but his Honour hesitated to extend that presumption to every complaint received by Justices of the Peace in a country town where every summons is issued on a complaint. Finally, his Honour adopted the approach of Napier J in Bruce v Jarrett (1926) SASR 96: I may add that the necessity for due proof of the required forms of procedure arises as a matter of law … The Court cannot control the exercise of discretions conferred upon the Board, and forms of procedure do not necessarily ensure the exercise of a sound discretion; but the Court can and should insist on being satisfied that the Board has gone through the forms which, if attended to, would remind it of its responsibility.

26 Another example of lack of authority was provided in the case of Rabczynski v Morrison (1988) WAR 71. That case involved a prosecution under the Wildlife Conservation Act which provided that all proceedings in respect of offences were to be taken by and in the name of the Executive Director or by and in the name of any person authorised in that behalf by the Executive Director. The complaint did not refer to the fact that the complainant was a person so authorised but described him as a wildlife officer. In oral evidence the complainant referred to the fact that he was so authorised and further evidence showed that he relied upon, as express authority, a duty statement under the Public Service Act which was issued to the complainant and which listed such activities as one of the duties. Pidgeon J noted that the duty statement was not produced and then, curiously, notes that it did not appear to have been signed by the Executive Director and that it did not purport to be an instrument of authorisation. In those circumstances he considered that there was insufficient evidence of authorisation.

27 The Full Court of the Queensland Supreme Court in Dever v Creevy, ex parte Creevy (1992) 1 Qd.R 232 gave consideration to a question of the authority to take a prosecution in circumstances where the authority was not tendered in the Local Court but was before the Full Court on appeal, "for all purposes". The Fair Trading Act provided that proceedings for an offence against the Act "shall not be instituted without the Commissioner's consent first had and obtained". Before the Magistrate, the point was taken that the authority of the prosecutor had not been proved. The Magistrate noted that there appeared to be on the file an authority by the Commissioner to commence the proceedings although it was not known how it came to be on the file: senior counsel for the defendant objected to it being tendered in the proceedings. The document was not tendered in the proceedings before the Magistrate and counsel for the prosecutor relied on the provisions of the Evidence Act that the authority of any person to take any proceedings shall be presumed unless the contrary is proved. The Full Court, nevertheless, held that where an issue as to the existence of a requisite consent to prosecute was raised then the prosecution was obliged to prove it if its case was not to fail. The matter was resolved on appeal, however, because of the court's power to consider new evidence: the document was tendered in the appeal proceedings and was accepted by counsel for the appellant as being before the court "for all purposes". 28 Dever v Creevey provides a particular example because of a specific statutory power, whereby an authority not proved at first instance may be proved on appeal. McPherson ACJ gave a brief history of provisions requiring consent or authority before proceedings could be instituted, noting that provisions in a similar form had been in use "for a very long time". His Honour noted that during and after the Revolution of 1688 criminal informations were much abused in England and that, in 1692 by statutory provision, the filing of private informations were prevented except by express order of the court. In England a further enactment was necessary to restrict the power of private individuals to prefer a Bill of Indictment before a Grand Jury. In Knowlden v The Queen (1864) 5B. and S. 532; 122 E.R. 930, the Court of Queens Bench held that it was not necessary for the requisite consent to be averred in the indictment and left to the jury at trial to decide as a question of fact whether such authority existed. In R v Waller (1910) 1 K.B. 364, 367, the Court of Criminal Appeal held that the prosecution was not called upon to prove the consent of the Director of Public Prosecutions as part of its case before the jury; the matter would not arise unless objection was taken by the accused, in which event it was a question "in each particular case as to the evidence that the court would require to satisfy itself whether there is any ground for the objection". His Honour considered a variety of authorities, many of which were referred to in the current proceedings, and then concluded: The decisions are by no means easy to reconcile. It is, however, clear that if the requisite consent has not in fact been given before proceedings are instituted, and the omission to obtain it emerges in the course of the case, the prosecution must fail: ex parte Stuart; re Mead (1930) 47 WN (NSW) 60; Timaru Transport Co Ltd v Ministry of Transport [1980] 2 NZLR 638, 647. … It is, I think, also clear from the decisions in that and other cases that the requisite consent is not to be considered as in the nature of an element of the offence. It is one of procedure: Price v Humphries [1958] 2 Q.B. 353; Turner v Tsaousis (1974) 7 SASR 488 …(at 236).

29 In a separate judgment, Thomas J looked at the nature of the statute prescribing the steps to be taken before prosecution. His Honour noted that given the virtually unlimited range of persons who could bring proceedings having regard to the provisions of the Acts Interpretation Act, the purpose of such provision "… may be discerned [as] preventing busy bodies from bringing trivial complaints and to protect persons from being charged unless a responsible officer [the Commissioner] considers prosecution appropriate. (cf Traveland Pty Ltd v Doherty (1982) 63 FLR 41,46). In noting that the Commissioner's consent was not an element of the offence but rather a procedural prescription, his Honour stated that failure on the part of the prosecution to lead evidence as part of its proof would not, per se, render the prosecution ineffective if the point is not taken by the defence. The necessary consent may be presumed in the same way that regularity of proceedings may be generally presumed: Berwin v Dononhoe (1915) 21 CLR 1, 25. His Honour then stated: Although Isaacs J was in dissent, no contrary view was expressed by any other member of the court. His Honour presented the following succinct summary: (1) if the Attorney-General has not in fact consented to that prosecution, the prosecution must fail (R v Bates (1911) 1 KB 964; (2) if the defendant does not object that the consent has not been in fact given to that prosecution, the consent in fact will be presumed (R v Metz 11 Cr.App.R 164); (3) the principles that the officer designated is presumed to do his duty (R v Waller (1910) KB 364 at p 367); (4) the defendant will be confined to the scope of his objection.

30 His Honour further noted that, whilst the prescribed officer may give such a consent in general terms, he may also chose to confine the consent in narrow terms and if that is done the prosecution is confined to that narrow ambit. The propositions that his Honour saw as emerging from the authorities were as follows: (1) Unless the defendant raises the point, it is not necessary that evidence of the consent be placed before the court. In the absence of any issue in relation to it it will be presumed, or at least its absence will not stand in the way of a conviction. (2) The defence may raise the point at any time, and it is not limited to doing so before the prosecution closes it case. (3) Once the issue is raised, the prosecution bears the onus of showing compliance with the statutory requirement. (4) If at the end of the day it emerges that no consent exists, or that the consent is defective in the sense that the actual prosecution does not conform to it, the prosecution fails. (5) If the point is raised after the close of the prosecution case the court has a discretion, but leave will ordinarily be granted to re-open the case to prove the consent. (6) Amendments may be permitted but not to such extent as will convert a non-conforming prosecution into a conforming one, or a conforming prosecution into a non-conforming one. The extent of non-conformity in each case involves a question of degree. The question is really one of identity of the particular prosecution as the one to which the official has consented. It must be able to be seen as the same creature even though some of its features are differently described. Gilmore is a helpful example of a variance creating a different creature and Traveland of variances that did not (at 247). In a separate judgment, the third member of the court, Byrne J, agreed with the analysis of McPherson ACJ and Thomas J concerning the meaning and effect of the document.

31 In Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223, the Full Court of the Supreme Court of Western Australia gave consideration to the Minister's consent to commence a prosecution in circumstances where the consent was not before the court but a letter to the Crown Law Department purportedly signed by the Minister, stating that he had consented to the prosecution some months previously. In dealing with how a signature of an authorising person may be proved, Malcolm CJ referred to R v Turner [1910] 1 KB 346 where the Court of Criminal Appeal was asked to consider how the consent of the Director of Public Prosecutions should be proved. In that case, Channell J, giving judgment for the court, said: In our opinion, without laying down a general rule as to what would be necessary in every possible case, it would be sufficient if some person who has been in correspondence with the Director of Public Prosecutions gives evidence to the effect that he received the document in the ordinary course of correspondence and believes it to be signed by the Director of Public Prosecutions (at 357-358). The Chief Justice then noted that, generally, the necessary consent is given either by signature of a form of consent as in Berwin v Donohoe and Turner or by endorsement of the consent on the complaint or information itself as in Holland v Jones (1917) 23 CLR 149. Speaking of the purpose of such provisions, the Chief Justice said: The purpose of provisions requiring the consent of the Attorney-General or a Minister to the institution of a prosecution is to ensure than no-one is harassed by a frivolous prosecution and that the prosecution is sanctioned by a responsible person: see McDonnell v Smith (1918) 24 CLR 409 at 411, per Rich J, in argument which was adopted by the court in dismissing the appeal (at 412). The Attorney-General or the Minister is under a duty to examine the facts and make a decision whether or not to consent to or authorise the prosecution as "an official act". Any challenge to the fact that he had may result in the prosecution being required to prove that he had …(at 229). The Chief Justice concluded that a statement by way of instructions by letter informing the Crown Law Department that a consent was given earlier was not itself a "consent" for the purposes of the Act - I would have no difficulty in holding that a form of consent for the purposes of Section 114(1)(a) purporting to be signed by the Minister and contained in a separate document or endorsed upon the complaint would constitute the signature an 'official signature' and the document an 'official document' within the meaning of Section 56(b) of the Evidence Act. In the present case, however, we have a "statement" in the form of a letter addressed to the Crown Law Department stating: 'This is to advise that in October 1989 I gave the Chief Executive Officer … consent to proceed with prosecution …". Thus the statement is an out of court statement relating to the fact of consent. As such, it is, on the face of it, objectionable on the ground of hearsay if it refers to an oral consent. If it refers to a consent in writing it is objectionable on the ground that it is secondary evidence of a document without proof that the document is unavailable because it has been lost or destroyed. I appreciate that the consent referred to in Section 114(1)(a) is not one which is necessarily required to be in writing (at 231).

32 In a separate judgment, Rowland J considered that, on its face, the letter addressed to the Crown Law Department from the Minister was not a judicial or an official document but simply a letter said to be from the Minister asserting a fact. It therefore needed to be proved as any other fact. The objection to its admission was properly taken and that would be sufficient to allow the appeal.

33 In the light of these authorities, the following submissions were made on behalf of Dartbrook - (a) The Occupational Health and Safety Act 1983, which created the offence, breach of which is alleged in the present proceedings, excluded the general common law rule and limited the right to institute proceedings for an offence against the Act or Regulation. (b) The consent in writing of the Director General of the Department of Mineral Resources (the relevant prescribed officer) was required for the institution of the present proceedings - s 48(1)(a) of the Act and Clause 3 of the Occupational Health and Safety Administration Regulation, 1992. (c) The procedure in summary proceedings before the Commission in Court Session is governed by s 168 of the Industrial Relations Act 1996. That section applies the Commission's rules in lieu of the rules made under the Supreme Court Act. (d) Rule 217B requires that proceedings be commenced by application for an order stating "the capacity in which the prosecutor is taking the proceedings". (e) The normal practice of the Department is for the Director General, Mr Coutts, to sign a formal "consent to institute proceedings" naming the person to whom such consent is being given. (f) The application filed on 27 March 2001 alleged that Rodney Morrison was 'a person who has received the written consent of the Director General of the Department of Mineral Resources to institute this prosecution under s 48 of the Occupational Health and Safety Act 1983 …' . (g) An affidavit in support of the application averred that Mr Morrison was "empowered under s 48 of the Occupational Health and Safety Act 1983 to institute proceedings in this matter". No further detail was provided. (h) No "consent to institute proceedings" in accordance with the Department's normal practice was executed. Instead, the prosecution relies upon a "confidential" internal memorandum dated 20 March 2001, containing a large amount of material claimed to be privileged, which concludes with the recommendation that a prosecution "be initiated by the Department". The recommendation was endorsed "approved" by the Director General on 26 March 2001. This memorandum does not constitute a written consent for Mr Morrison to institute proceedings in his own name. (i) In accordance with the general law and the requirements of the Commission's rules, when read together with s 48(1)(a), it is clear that any written consent to institute proceedings under s 48(1)(a) had to authorise the prosecutor personally before the proceedings could be instituted by him - this accords with the Department's normal practice. (j) The application for an order proceeded expressly on the false premise that Mr Morrison was "a person who has received the written consent of the Director General" presumably upon the assumption that the normal and necessary steps have been taken. (k) The premise upon which the proceedings were commenced is, upon examination, unsustainable. The necessary element for the validity of the proceedings is missing. The pre-conditions set by s 48(1)(a) is not, in fact, satisfied. No written consent to the institution of the proceedings by Rodney Morrison was ever given. (l) The oversight is incurable. It cannot be remedied by reference to the memorandum of 20 March 2001 which read at its highest, provides a general internal approval to proceed to prosecution action by the Department but does not itself satisfy the remaining formal steps which needed to be taken, including that the Director General give his consent to the prosecutor in writing prior to the institution of the proceedings .

34 It was then submitted for Dartbrook that, there being no relevant consent, the Court had no jurisdiction and the proceedings were a nullity (R v Angel (1968) 2 All ER 607); Gilmour v Midway Springwood Pty Ltd (1980) 3 A.Crim.R 196; Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223 at 227). The proceedings were a nullity and it would be contrary to the public interest and oppressive if they continued.

35 Dartbrook relied on transcript of proceedings before Kavanagh J and a bundle of forms, whereby the Director General had consented to certain prosecutions being commenced by Mr Morrison, as establishing a standard practice within the Department. It was submitted that the issue in this case was whether a document which did not conform to that standard practice was capable legally of being regarded as consent to institute proceedings. It was accepted that the practice might have no statutory or regulatory status and, while it was an administrative practice, it: (a) accorded with the law and legal requirements to commence a prosecution; (b) it could be contrasted with the purpose of the memorandum which is relied upon in this case. The Department had a practice for the purpose of giving consent to the institution of proceedings - that was different from the memorandum relied upon in this case and the memorandum did not have that purpose. 36 The Director General's memorandum was no more than an internal document acknowledging that the matter might proceed to prosecution and in that sense was similar to the memorandum of 21 February which contained a recommendation for prosecution although it was not relied upon as proving the authority under s 48 of the Act. The February memorandum was a recommendation to proceed with the prosecution subject to the advice of counsel - the March memorandum was entitled "A Progress Report". It was said that the memorandum of 20 March was one of a series of internal memoranda which result ultimately in the Director General being satisfied that the matter is sufficiently developed and that proceedings can be commenced but it represented no more than internal approval for the continuing of the further steps which then became necessary, namely, that there would need to be executed formal consents and documents prepared and lodged in the Commission. The document contained privileged material and was clearly unintended to satisfy the provision of a document to meet public scrutiny if required to become available.

37 The question therefore arose whether this internal memorandum "full of evidentiary material" would satisfy the provisions of s 48 of the Act simply because it had Mr Coutts' approval. The fact that the document contained confidential material may bear upon its character. This was obviously a document intended to serve internal departmental purposes - it was not intended to serve as a consent to prosecute. The intended use of the document gave a guide to the quality of the approval and whether it was appropriate to regard it as a consent to institute proceedings.

38 The bundle of documents evidencing consent to institute proceedings under the Act, without exception, gave consent to, and named, Mr Morrison as the person to initiate the proceedings. The evidence of Mr Morrison and Mr Regan, saying that since September 1999 the practice has been that Mr Morrison has initiated proceedings for the Department, did not really go far enough to satisfy the requirements of the Act.

39 It was further submitted for Dartbrook that Mr Morrison, on the authorities, was not able to take the prosecution in his private capacity: here, the Act specified those who could take or authorise the taking of proceedings under the Act thus demonstrating a clear legislative intention that proceedings for an offence under this Act could not be taken by any person. Section 48 contemplated that classes of persons, as nominated, may institute proceedings but all persons within the class must necessarily commence the prosecution in his or her own name. The prosecution has to be instituted personally. The present proceedings were either a private prosecution or an authorised prosecution. The necessity for authority could not be overcome by an officer of the Department saying "I am in the Department. I usually do these things." The Act itself says the prosecution has to be instituted by a person who has received written consent. The common law requires it to be a person and the Criminal Procedure Act requires it to be a person. The Commisson's Rules also require proceedings to be instituted by a person.

40 Senior counsel for Tecrete adopted the submissions made for Dartbrook. In addition, it was pointed out that the March memorandum relied upon by the prosecutor was entitled "A Progress Report". It therefore seemed that the purpose of the memorandum was to advise the Director General of the progress of the matter and no more. The document could not stand as a consent under s 48 of the Act. The Committee reporting to the Director General did not contemplate in terms, nor did it recommend in terms, that any particular person take the prosecution - the document could therefore not stand as an approval for Mr Morrison to commence these proceedings.

41 For the prosecutor, it was submitted that the administrative practice adopted in other cases by the Department was irrelevant: that practice had no statutory or regulatory force. Secondly, the principal argument for the defendants appeared to be that consent to prosecute was not given to Mr Morrison personally: as a matter of fact that was wrong and, secondly, as a matter of law it was unnecessary.

42 In relation to the issues of fact, the whole of the evidence made it clear that it was custom and practice that Mr Morrison initiated prosecutions and it was apparent that the Director General was aware of that custom and practice. The memorandum from Mr Morrison to the Director General contained the written consent to prosecute. The memorandum from Mr Morrison to Mr Coutts was endorsed with Mr Coutts' approval and Mr Morrison acted on it. The approval was given to Mr Morrison who made the recommendation to prosecute - it was a matter of logic that Mr Morrison was authorised to commence the proceedings.

43 Section 48 of the Act neither expressly nor implicitly required that the proceedings be commenced by a named individual except in two discrete circumstances: there were only two class of persons who may commence proceedings other than those with the written consent of the Minister or a prescribed officer, namely, an inspector or secretary of an industrial organisation of employees, the members of which are concerned in the proceedings. All that s 48(1) required was that the written consent of either the Minister or the prescribed officer had been obtained before the proceedings were instituted. That had occurred in this case. It was also submitted that s 55 of the Criminal Procedure Act was a complete answer to the submissions for the defendants. Section 55 provides: A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons. Armed with the written consent of the Minister or prescribed officer, it was submitted that anyone can commence the proceedings on behalf of the Department and that Mr Morrison had habitually done so was of interest but no more.

44 The prosecutor drew attention to the judgment of the Full Federal Court in Barton v Croner Trading Pty Ltd (1984) 3 FCR 95. It was submitted that this case made it clear that the court was entirely unconcerned whether the named prosecutor was authorised to institute the proceedings in circumstances where there was a provision almost identical to s 48(1) of the Act. Section 163(4)(b) of the Trade Practices Act 1974 provided: Proceedings before the Court in accordance with this section - … (b) shall not be institute except with the consent in writing of the Minister or of a person authorised by the Minister, by writing under his hand, to give such consent The Attorney General was responsible for administering this part of the Act and published in a Gazette a notice authorising the Minister of State for Home Affairs and Environment to give consent, for the purposes of paragraph 163(4)(b) of the Trade Practices Act 1974, to the institution of proceedings in respect of offences against Part V of the Act. It was submitted for the defendant that the consent from one Minister to another was bad. It was said that the authorisation given by the Attorney-General was an authorisation in favour of any person who may, from time to time, hold the office of Minister of State for Home Affairs and Environment: if it were intended to confer the authority only upon the incumbent Minister, he would have been named. It was further submitted that paragraph (b) refers to "a person authorised by the Minister". The defendant argued that an ambulatory authority is not an authority to "a person".

45 The Full Court drew attention to the judgment of Windeyer J which was affirmed on appeal in Owendale Pty Ltd v Anthony (1967) 117 CLR 539. That case involved a provision whereby the Minister could delegate to "any person or authority" any of his powers or functions under an ordinance except the power of delegation. The delegation relied upon was a delegation "to the person for the time being holding or performing duties of an officer specified in the First Schedule to this Instrument all my powers and functions under this Ordinance except the powers to make regulations". The officer who signed the notice at the time held one of the offices specified in the First Schedule. Windeyer J referred to the decision of Starke J in Noble and Bear v The Commonwealth (1943) 17 ALJ 184 at 185, and commented: Since then, delegations to the holders of specified offices have becomes commonplace in the administrative system of the Commonwealth; and provided that there by an identifiable person the holder of the office, I consider they are a valid exercise of a statutory power to delegate to 'any person'. That approach was considered by the Full Court to be decisive.

46 While s 48 was headed "Authority to Prosecute" and sub-section (1)(a) spoke of the "written consent" of the Minister or the prescribed officer, nothing turned on the fact that the Director General "approved" of the institution of the prosecution. There is no difference between the use of the word "consent" in the section and the use of "approved" in the memorandum. Support for this proposition was found in the judgment of the Court of Criminal Appeal in John Graham Kemp v Gough and Gilmour Holdings Pty Ltd (unreported, 14 February 1995). In that case, Carruthers J, speaking for the court, stated:

Some statutes required the "consent" of the relevant person or organisation; others require the requisite "approval"; others require the requisite "authority". It does not matter which word is used, as they all have the same effect and are intended to achieve the same purpose. If such consent, approval or authority is required to be in writing, it is clearly sufficient if it is endorsed on the information or other documents initiating the proceedings.

47 Further, it was submitted that, under the Act, there was no prescribed form for consent of the Minister or prescribed officer: so long as it was provided in writing that was sufficient. Consent will be no less effective because it is contained in an internal memorandum. To the contrary, the fact that the consent was granted to initiate the prosecution in the contents of a memorandum recommending the prosecution arising out of the circumstances set out in that document was indicative that the Director General gave his written consent to the prosecution.

48 It was accepted that the approval from the Director General was to the Department and that the Department itself could not initiate a prosecution. The question really was whether the Director General had given his written consent to the commencement of the proceedings. It followed from the content of the document that he had given his consent and it was a matter for the Department as to who was the person to be named as the prosecutor in the proceedings. From what has been proved from the practice of the Department that was to be Mr Morrison and this was a memorandum from Mr Morrison to Mr Coutts.

49 The cross-examination of Mr Coutts in other proceedings, which was tendered by Dartbrook to demonstrate the Department's custom and practice in relation to the signing of consent forms, demonstrated that Mr Coutts made decisions to prosecute and then later had a standard form of consent endorsed. It was suggested that the importance of this evidence was that the decision making process involved in deciding to prosecute occurred before the signing of the standard form. 50 In relation to the internal documents, the memorandum of 21 February approved a recommendation to prosecute but in terms which suggested that it was an interim step in the process of decision making. The recommendation to prosecute required that certain conditions be satisfied. The memorandum of 20 March clearly showed that the Director General consented to the prosecution. The fact that it was referred to as a "Progress Report" was of no consequence: what was of consequence was whether the consent to the prosecution was contained within that document.

51 It was not necessary and never was necessary for the Director General to specifically clothe Mr Morrison with written approval to initiate the prosecutions on behalf of the Department as long as he provided the Department with a form of consent or approval. It did not matter whether Mr Morrison or anyone on behalf of the Department initiated the prosecution. The practice may indicate as a fact that Mr Coutts contemplated that Mr Morrison would be the prosecutor but the legislation did not require that he be the person to initiate the prosecution.

52 It may well have been that the form of words appearing in the application and in the affidavit supporting the application for summons may have created the artificial argument now raised. Where Mr Morrison says that he is the person who received the written consent of the Director General, in truth he was that person - he received the written consent from the Director General in his hands. Mr Coutts returned the memorandum to Mr Morrison. There could not be any doubt that Mr Morrison came into possession of the document via Mr Coutts. Mr Coutts' initials appeared beside the word "St Leonards" which is crossed out with an arrow directing the memorandum back to Mr Morrison. The only reason that Mr Morrison described himself as the person who has received the written consent was to comply with the Rules of the Commission. Even if Mr Morrison had not deposed that he was a person who had received the written consent of the Director General but had attached the document of consent in purely general terms, he would be able to show that he had the written consent of the Director General to commence the proceedings. A presumption of regularity would apply.

53 The memorandum approved by Mr Coutts authorised the Department to institute the proceedings: it was accepted by the prosecutor that the Department could not institute proceedings as the Department, and that an individual would have to commence the proceedings. Approval having been given for the institution of proceedings, it must have been contemplated that an individual on behalf of the Department would institute the proceedings. The Act required written consent for the commencement of the proceedings. That requirement has been complied with and the words "by the Department" in the memorandum were otiose.

54 In relation to the provisions of s 48(1)(a) of the Act, the prosecutor pointed out that no form of written consent was prescribed and, even if there were, the provisions of s 80(1) of the Interpretation Act 1987 provide that strict compliance is not necessary - substantial compliance is sufficient. It was submitted that, provided the consent was in writing, that was sufficient.

55 Further, it was submitted that there was no statutory or other requirement that authority be given to a person who initiates the prosecution. All that the legislation required was written consent to the commencement of the prosecution; it did not additionally demand that the authority be conferred on any specific person. 56 There was nothing in s 48 which required that the written consent to prosecute must name the prosecutor. Such a construction is unwarranted on the plain reading of the Section or on application of general principle. Nothing in s 48 expressly required that, where proceedings for an offence were instituted with the written consent of the prescribed officer, they may only be instituted by a person authorised in writing to do so. Within the section, paragraph (1) is in contrast with paragraphs (b) and (c) and the paragraphs are disjunctive.

57 These submissions for the defendants were argued to have the effect of seeking the Court to read into the legislation words that were not there. This was contrary to principle: It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clearness it is the wrong thing to do. (Thompson v Goold & Co. [1910] AC 409 at 420).

DELIBERATION 58 In this matter, the argument for the defendants is presented as raising questions of principle in commencing criminal proceedings in the Commission in Court Session, namely, that there must be a proper consent, and proper consent separate from the consideration of whether or not to prosecute and, secondly, the consent to prosecute must be granted to a named individual as a natural person rather than to an entity such as a Department of Government. After a consideration of the authorities it is my view that the issue is one of construction: (eg Brebner v Bruce (1950) 82 CLR 161; Bedingfeld v Keogh (1912) 13 CLR 303; Gilmour v Bastian (1918) 34 WN (NSW) 230). The questions which arise are these: What is required by s 48(1)(a) of the Act to constitute consent?; and, What is the true nature and effect of the memorandum of 20 March 2001 containing the Director General's signature and approval?

59 In approaching the proper construction of s 48(1) the usual principles are applicable: the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provision of the statute - the content, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. Thus the process of construction must always begin by examining the content of the provision that is being construed. (Project Blue Sky Inc. & ors v Australian Broadcasting Authority (1998) 194 CLR 355 [69] at 381).

60 Although the Act imposes criminal penalties, s 48 is procedural - it forms no part of the offence and is not an element of the offence (Price v Humphries; Turner v Tsaousis; Dever v Greevey; ex parte Creevey; MacCarron v Coles Supermarkets Aust. Pty Ltd). Thus, although the Act creates offences and provides a penalty, the ordinary rules of construction are applied - a strict approach is unnecessary (Beckwith v R (1976) 135 CLR 569 at 576 per Gibbs J).

61 It is appropriate to commence the task of answering these questions of construction by considering what the courts have said about the object of provisions which require consent, authority, approval or like terms in order that a prosecution may be taken or continued. Legislatures, over the years, have used a variety of descriptions, but to the same effect (Kemp v Gough & Gilmour Holdings). The necessity for consent is a check on irresponsible persons who might heatedly, although from patriotic motives, institute proceedings: the mischief aimed at by such sections is the harassing of people by frivolous prosecutions thus requiring proceedings to be sanctioned by some responsible person (per Rich J in McDonnell v Smith (1918) 24 CLR 409 at 411); the object of such a provision is that no one should commence a suit or lay an information unless directed to do so by the nominated body, be it the council, a by-law committee or the mayor (Ex parte Wright Heaton & Co (1895) Vol XII WN (NSW) at 11); the intention of such a provision is to prevent unauthorised and possibly malicious prosecutions by irresponsible persons (Ex parte Smith (1918) 35 WN (NSW) 54); the general purpose to be served by such a provision is to prevent frivolous or vexatious proceedings (McConnell Dowell Constructions (Aust) Pty Ltd v Environmental Protection Authority [2000] NSWCCA 367 at paragraph [11]; such provisions have a purpose of preventing busybodies from bringing trivial complaints and to protect persons from being charged unless a responsible officer considers it appropriate (per Thomas J in Dever v Creevy; ex parte Creevy (1992) 1 Qld.R 232, adopting the Full Federal Court in Traveland v Doherty (1980) 63 FLR 41 at 46); the prosecution must be sanctioned by some responsible person and the court is to be satisfied that the board has gone through the forms which would remind it of its responsibilities (Shulz v Virgin (1996) SASR 49, adopting Bruce v Jarrett (1926) SASR 96); and, when considering consent to a prosecution, the Attorney-General is under a duty to examine the facts and to make a decision whether or not to consent to or authorise a prosecution (Palos Verdes Estates v Carbon (1992) 6 WAR 223 at 229). The importance of this line of authority is that the emphasis is upon avoiding frivolous or vexatious prosecutions and ensuring that proper consideration is given to allowing a prosecution to commence: these are broad and general considerations and, importantly, do not direct attention to compliance with administrative steps, nor are such administrative steps deemed to be necessary as a matter of principle in order that there be a valid consent.

62 In the present matter, I am satisfied that the Director General has had laid before him on at least two occasions sufficient detail for him to be able to reach a considered opinion as to whether or not these prosecutions against the defendants were appropriate prosecutions to be taken. The procedure adopted prior to the grant of consent under the Act to commence a prosecution involved consideration by a special committee convened for the purpose and in this case the taking of external advice from counsel as well as having some of the more formal matters attended to by Departmental legal officers. The Director General is the person who is to undertake this duty to consider whether or not the commencement of a prosecution is justified. Isaacs J in Berwin v Donohoe (1915) 21 CLR 1 at 25 stated the principle to be that the officer designated is presumed to do his duty, applying R v Metz (1915) 11 Cr.App.R 164. The Director General is therefore presumed to have undertaken the task of considering the material put before him by the committee recommending the prosecutions.

63 Some of the cases have emphasised that an important consideration is whether or not it is shown that the prosecution has in fact been authorised: if not in fact authorised the prosecution fails. This was the approach adopted by Isaacs J in Berwin v Donohoe and by the Court in Dever v Creevy; ex parte Creevy (1992) 1 Qd.R 232. In the present matters, I am satisfied that the Director General has in fact authorised prosecutions under s 15(1) and s 16(1) of the Act against the defendants as charged. His note on the February memorandum discloses that the Director General was alive to the interim nature of the recommendations and had approved continuing steps. His signature and redirection of the March memorandum approved the prosecution under s 15(1) and s 16(1) of the Act arising from the fatal accident at Dartbrook Colliery. Having regard to what I have earlier set out as the purpose of provisions such as s 48(1)(a) of the Act, this is a finding of significance which strikes at the core of the arguments put on behalf of the defendants. I should mention at this point that it may be considered that there is a conflict between a court being satisfied that the authorising body has in fact authorised the prosecution, and the presumption that the authorising body has done its duty. Isaacs J in Berwin, spoke of the necessity for both steps, thereby suggesting that these expressions deal with different, although related, matters. In my view, the requirement that the authorising body has "in fact" authorised the prosecution, directs attention to the nature of the charge or charges (here s 15(1) and s 16(1)) of the Act). It also encompasses cases where there has been a total failure to authorise the prosecution as distinct from the adequacy of the authorisation. The presumption that the designated officer has performed his duty is a reference to the prima facie position and may extend to the duty to consider the relevant material before giving consent to the prosecution.

64 In Ex parte Stuart re Meade (1930) 47 WN (NSW) 60, the court was of the view that in a provision framed in a similar way to s 48 of the Act the authority to proceed with a prosecution must be given before the date upon which the information is laid and the absence of evidence of the date of conferral of authority would lead to the failure of the prosecution. The evidence in these prosecutions establishes that approval for the prosecutions was given by the Director General on 26 March 2001 - the day before the applications for summons against the defendants were filed in the registry of the Commission. I am therefore satisfied that the Director General's authority was granted before the date upon which the applications for summons were filed. 65 The next issue concerns the adequacy of the consent to commence the prosecution given by the Director General signing the memorandum of 20 March 2001 and thus approving of the recommendation made by the Committee.

As pointed out by the Full Federal Court in Traveland in relation to a similar provision, there is no express provision as to the form of the consent or as to the detail or particularity with which proceedings must be identified. In Australia, it has long been established that authority to prosecute in general terms will be sufficient where the statutory provision is itself in general terms. (see, more recently Water Board v Environment Protection Authority (1994) 83 LGERA 174 at 179). Thus, in Berwin, an authority in the following terms was held to be effective: The Attorney-General of the Commonwealth hereby consents to a prosecution being instituted against Arthur George Berwin for an offence against the Trading against the Enemy Act. Of this provision, Isaacs J said: No one other section than Section 3 requires such consent and the presumption is that the consent was given with reference to Section 3. No other prosecution or offence or challengeable conduct on the part of Berwin within the purview of the Act is suggested. In short, there is nothing but the present set of circumstances to which, so far as it appears, the consent could possibly have reference, and the consent was entrusted to the Crown officer Donohoe actually prosecuting in this particular case. But if it is to be presumed that the Attorney-General has done his duty in examining the circumstances of this case, his consent in the terms in which he has given it is sufficient. And that is the conclusion to which I come. If that is not to be the presumption, the written consent is to be treated as a memorandum under the Statute of Frauds, it would be disastrous. A complicated set of circumstances may be reviewed by the Attorney-General, and his consent to a prosecution under the Act may be given in general terms leaving to it to the Crown Solicitor to formulate the charge. If the precise form of a charge were necessary to be stated, then the provisions of the Justices Acts and the Crimes Act permitting amendments and guarding against the old fatalities for variances would be inoperative. If the defence definitely challenges the fact that the Attorney-General has examined the facts of that particular case, the prosecution may be put to prove that he has; but, as I say, no such challenge was made here. The objection was merely as to the form of the documents (at 26 - 27). In relation to this form of authority given by the Attorney-General, Higgins J stated: It is said that this consent is not sufficiently specific, does not specifically refer to this particular prosecution. It is not pretended that there is any other prosecution to which it could possibly refer. There is only one offence specified in the information, an offence under Section 3 (see Acts Interpretation Act 1904, Section 8); and there is no offence mentioned in the Acts that requires the consent of the Attorney-General except an offence against Section 3. It is quite true that the words and the written consent might also be applicable to some other offence than that specified in the information; but the words are distinctly applicable to that so specified … Inasmuch as the prosecution in this case answers the description of the prosecution to which consent has been given, it is not necessary for the prosecutor to give evidence identifying the former with the latter. It is for the accused to rebut the presumption that the consent refers to this prosecution (Seewall v Evans; Leake on Contracts, 5th Ed. p 137). It is for the accused to show that the written consent which on its face and without any straining of words, can fit this prosecution, does not relate to it (and see R v Metz). Even if there were two prosecutions to which the consent would be equally applicable, evidence would be admissible to show to which the consent is applicable; the consent would not be a bad consent. There would be a sufficient description even if evidence had to be given to show to which prosecution the consent referred (Shardlow v Cottrell; Plant v Bourne). (at 28-29).

66 In a separate judgment in Berwin, Powers J stated that he did not propose to add anything to the reasons given by Isaacs and Higgins JJ as to the objection to the consent of the Attorney-General (at 38). Further, in Berwin it was stated that a signature to a form of consent is sufficient: this was the approach adopted in R v Turner (1910) 1 KB 346 and adopted in Palos Verdes Estates Pty Ltd v Carbon. In R v Bacon (1973) 1 NSWLR 87 the Court of Criminal Appeal stated:

The first of these problems concerns the manner in which the Minister may give his approval, and the way in which approval can be proved or disproved. We think that the Minister must do more than decide in his own mind to approve; his approval must be in some overt form . It need not be in writing, although it is undoubtedly preferable that it should be. As has been the common practice where such consent is required, it may be endorsed on the information or other document initiating the proceedings. Although it may be in completely general terms, an approval may be limited to the prosecution of the specified offence …what must be proved is the institution of the proceedings in respect of the particular offence or offences before the Court (at 94-95). ( emphasis added ) These cases show a determined approach by the courts over a number of years resulting in a considerable degree of flexibility being applied as to what is sufficient to constitute authority or consent to commence prosecutions under a general provision such as s 48(1)(a) of the Act.

67 From the various cases it can be seen that: a simple signature in a form of consent will suffice (Berwin; Turner; Palos Verdes Estates Pty Ltd); the consent need only be in some overt form (R v Bacon); and, the authority can be contained in a separate document and need not necessarily be endorsed on a complaint (Palos Verdes Estates Pty Ltd).

68 The terms of s 48(1)(a) of the Act state that proceedings for an offence against the Act may be instituted with the written consent of the Minister or prescribed officer. There was no issue in this case that the Director-General was a prescribed officer by virtue of the operation of Clause 3 of the Occupational Health and Safety (Administration) Regulation 1992. I have earlier expressed the view that, by signing and signifying his approval on the memorandum of 20 March 2001, the Director General had, in fact, authorised these prosecutions. The defendants argue, however, additional details had to be attended to - a proper form of consent was required and a person had to be nominated to undertake the prosecution. It was not sufficient and led to invalidity for the Director General to simply nominate the Department to initiate the prosecution as recommended by the Review Committee.

69 In resolving this issue, I have been guided by the judgment of French J in Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403. In that case, the Full Court of the Federal Court was considering provisions of the Income Tax Assessment Act whereby the Commissioner or a person authorised by him had full and free access to all buildings, places, books, documents and other papers for any purpose of the Act. A simple form of authority given by the Commissioner was, at first instance, held to be invalid. The Full Court overturned that finding and, in particular, French J considered whether an authorisation must be directed to a specific proposal to enter some building or place and examine documents therein. His Honour expressed the view that the verbiage of the section contemplated the existence of an authority in general terms, and continued: A judicial requirement for such authorisation involved the imposition of a procedural safeguard on the exercise of the Commissioner's power. The concept of curially imposed procedural safeguards is not entirely novel. Rules of natural justice are an obvious example. In my opinion, however, it is not open to the Court in the present case to create a new category of rules which would impose a procedural fetter on the exercise of this quite 'wide' statutory power in order to ensure that its repository gives due regard to common law rights. It follows from the above that the written authority to be produced on demand pursuant to s 263(2) will constitute proof of a general authorisation if it contains a statement by the Commissioner that the officer is so authorised. There can be no superadded requirement that it show on its face the premises to be searched and the books, documents and other papers which are the subject of the search. In this regard, the approach which would generally require these details to be shown reflects the imposition of ancillary procedural rules that cannot be found in the language of the section. … in the context of Section 263(2) the only relevant question is whether each of the authorisations constituted "an authority in writing signed by the Commissioner stating that the officer was authorised to exercise powers under this section". As to the first point, the fact that the authorisations refer to the exercise of powers under other Acts does not alter their character for the purposes of s 263(2). (at 434).

70 Once it is accepted, as I have, that the prosecutions were, in fact, authorised and consented to by the Director-General, that appears to be all that is required by s 48(1)(a). To adopt the words of French J and to then require the authorisation to specify a person to take the prosecution in order for the consent to be valid would be to impose superadded requirements and the imposition of ancillary procedural rules that are not found in the language of the section. Further, the imposition of an inflexible code of administration on the section as suggested by the arguments for the defendants would expose this provision to the type of unintended difficulties referred to by Issacs J in Berwin. In another statutory context, Morling J in Murchison v Keating (No.2) (1984) 54 ALR 3l86 said: The necessity to obtain the Treasurer's consent to a prosecution under the Banking (Foreign Exchange) Regulations is no more than an administrative safeguard against the formulation of charges which the Treasurer might think do not warrant prosecution (at 394). In this context it is relevant that the requisite consent is not to be considered as in the nature of an element of the offence: it is one of procedure ( Price v Humphries [1958] 2 QB 353; Turner v Tsaousis (1974) 7 S.A.S.R 408; Dever v Creevy; ex parte Creevy (1993) 1 Qd.R at 236; MacCarron v Coles Supermarkets Aust. Pty Ltd [2001] WASCA 61 per Kennedy J). These considerations lead to the conclusion that neither as a matter of construction nor on the application of legal principle, that a consent under s 48(1)(a) requires the nomination of a person to undertake the prosecution. There is, therefore, no basis to elevate the practice of the Department in relation to forms of consent to a necessary requirement for the constitution of a valid consent. The cases I have referred to strongly tend against such an approach.

71 I have already dealt with the defendants' submission that an effective consent under s 48(1)(a) of the Act requires the Director General to nominate a person to take the prosecution. That submission was further supported by suggesting that the common law, the Common Law Procedure Act and the Rules of the Commission required a prosecution to be taken by a "person". There are a number of problems for this proposition. Section 48(1)(a) does not require consent to be conferred upon "a person". Section 168 of the Industrial Relations Act imposes no such requirement. Rule 217B merely requires that the application and affidavits filed indicate the capacity in which the applicant takes the prosecution. There is force in the prosecutor's submission that both the application and the affidavit of Mr Morrison were correct when they stated that he had received the written authority of the Director General to commence the proceedings: that is not an assertion that Mr Morrison was named in the consent as the person to take the prosecution nor was this necessary for reasons already given. In accordance with the Department's usual practice, Mr Morrison as Convenor of the Review Committee had sent the recommendation to Mr Coutts as Director General; Mr Coutts in approving the recommendation for prosecution had sent a signed approval constituting consent for the prosecution back to Mr Morrison; the usual administrative practice of the Department was that Mr Morrison would thereafter act as the prosecution and the legal department would draft the particulars and necessary documentation for the filing of the prosecutions. Section 48 does not attempt to regulate this procedure. There is no lack of validity because the authority to prosecute is in general terms, leaving it to Departmental officers to formulate the charges and conduct the prosecution.

72 It is also erroneous to suggest, as put by the defendants, that only a "person" can be given an authority to prosecute under s 48(1)(a), as a matter of general legal principle quite apart from the construction of s 48. As already mentioned, the Full Federal Court in Barton v Croner Trading Pty Ltd (1984) 3 FCR 95, allowed an authority granted by one Minister to another Minister, without naming that Minister, and rejected an attack that an authority so granted did not comply with the statutory provision by not granting the authority to "a person". The attack that an authority had to name a particular Minister and could not be ambulatory, was rejected. I have pointed out earlier in this judgment that on its proper construction the terms of s 40(8)(1)(a) does not require the grant of a consent "to a person" - it merely requires that there be consent to the prosecution. On a consideration of the numerous cases which have been canvassed in this matter the defendants' proposition as a matter of legal principle or logic fails. This is especially so once it is accepted that: (a) a general authority is valid and effective; (b) no particular form of consent or authority is required; (c) the detail or particularity of the proceedings need not be identified; (d) it is not necessary to allege all the elements of the offence in the consent; (e) a signature of a form of consent is sufficient; (f) the consent or authority may be contained in a separate document to the information or summons; (g) a general authority is not invalid as amounting to an impermissible delegation; (h) all that is required is the signature of the designated person in order to institute the proceedings; (i) that the holder of an office, from time to time, is effective in nominating a person who may take a prosecution; (j) it is erroneous to impose superadded conditions and administrative requirements upon a general consent; (k) the presumption is that the designated officer granting the authority has performed his duties; and (l) the authority or consent to prosecute is a matter of procedure as is the issue of a summons - then it is impossible to see why the consent must name the person who is to prosecute the case to which consent had been given. While it might offend a tidy mind that a consent under s 48(1)(a) of the Act does not name the person to undertake the prosecution, the section simply does not require it - as dealt with earlier in this judgment the object of this type of consent provision is to ensure that a responsible person considers the matter and that unreasonable or vexatious prosecutions are not commenced. 73 The defendants then argue that the purpose and intent of the memorandum of 20 March 2001 was not to grant a consent to a nominated person to commence a prosecution. The memorandum was said to be no more than a decision to commence a prosecution with the intention that the usual documentation and standard form of consent nominating a specified officer, usually Mr Morrison from the Department, as the person to take the proceedings. In this respect, it is again to be recalled that in Traveland the Full Federal Court held that a general provision like s 48 of the Act does not preclude a consent to the institution of proceedings being worded in general terms with the identification of the precise offence, the particular wording of the charge and the content of any particulars being left to those responsible for the actual institution and conduct of the proceedings. The court there contemplated that not only the particulars of the charge but also the persons responsible for the actual institution and conduct of the proceedings need not form part of the consent for the consent to be valid. Similarly, in Berwin the prosecutor does not seem to be named in the general authority which the High Court considered to be valid.

74 In my view, this particular challenge is to be decided by reference to the substance of the memorandum of March 2001 rather than being diverted by its form as an internal memorandum apparently crippled, so the defendants would have it, for the purposes of s 48 of the Act by containing "evidentiary material". It is well established and accepted that courts will look to the substance of a matter rather than its form to determine its character (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 per Brennan J at 610) noting the difference between the substance of an action as distinct from its form as recognised in Krishna Behari v Brojeswari Chowdranee (1875) LR 2 IndApp 283; and in an industrial context, in Re Water and Sewerage Employees - Wages Division (Metropolitan) Award and ors. (1983) 4 IR 67 at 72). Indeed, in Traveland, the Full Federal Court stated that the conclusion they had reached was that the proceedings were, in nature and in substance, proceedings to the institution of which the Minister had given his written consent (at 49). More recently, the Full Court of the Commission in Court Session, in Workcover Authority of NSW v Lucon (Australia) Pty Ltd [2002] NSWIRComm 68, has added to this line of authority. At paragraph 60 of the judgment the Full Court stated that "an application for summons" under the Rules might appropriately be considered as an available method prescribed by the Rules for an application for an order under the Summary Jurisdiction Act - The effect of an order under s 4(1)(a) is, in substance, and in effect, 'to summon' or 'to summons' the person nominated to appear before the Court. The use therefore of the word 'summons' and not 'order' is of no consequence. It is trite that the law will usually look to the substance rather than the form of the transaction and procedures to decide validity. Of particular significance to the present debate is the conclusion stated by the Full Court at paragraph 66 - In any case, an objective consideration of the applications for summonses and the accompanying affidavits makes clear that they were applications for orders within the meaning of s4(1)(a) of the Summary Jurisdiction Act. The character of the documents is to be determined by considering their substantive character rather than by focussing on the manner in which they may be titled or upon the prosecutor's subjective intentions: The Queen v Loewenthal; ex parte Blacklock (1974) 131 CLR 338 at 345 per Mason J; Minister for Youth and Community Services v Health and Research Employees Association of Australia, NSW Branch (1987) 10 NSWLR 543 at 549 per Kirby P; and see also Taylor v Environment Protection Authority 50 NSWLR at 55-56 and Coulson v T Lambert Pty Ltd [1976] AR NSW 45 at 46.

75 In this case, the evidence discloses consideration on two occasions by the Director General of whether prosecutions should be commenced against the defendants. The February memorandum accepted that there was a case against the defendants and that prosecutions should be commenced subject to further consideration, apparently by legal representatives. The second memorandum of March 2001 contained considerable detail concerning the fatal accident and concluded with a recommendation to the Director General that prosecutions should be commenced against the defendants. The memorandum, in terms, sought the approval of the Director General to commence the prosecution. The memorandum served no other purpose and that purpose is clear on its face and was not materially altered by being labelled a "progress report". The memorandum itself did not contemplate that approval by the Director General would be subject to some further step such as the signing of a standard form of consent, such that only when that step was taken was it contemplated that authority was given for the prosecutions. The Departmental practice relied upon by the defendants demonstrates that there was a well understood process: Mr Morrison convened the Review Committee; the Review Committee considered each case where prosecution action under the Act was possible; if the Review Committee formed the view that prosecution action was warranted it would set out the facts and the reasons why the Committee had reached that view; the recommendation would then be sent to the Director General; if the Director General approved of the recommendation, steps would be taken to draw the appropriate charge within the Department and Mr Morrison, acting as prosecutor, would institute proceedings in the appropriate place. In Mr Coutts' evidence before Kavanagh J, he made it clear that when he received the recommendation of the Review Committee that was the point at which a decision was made. If he accepted the recommendation then he would approve the prosecution being initiated in the Commission. In my view, it is at this point, when the Director General signs the recommendation approving the prosecution, that consent under s 48(1)(a) is given. The standard form document used by the Department is subsequently signed and represents no more than evidence of the decision made by the Director General to consent to the prosecution.

76 It is on this basis that I have firmly come to the view that, regardless of its form, the memorandum of March 2001, in substance, pursuant to s 48(1)(a) constituted, consent to commence proceedings under the Act. Importantly, the same document demonstrates that the Director General had significant material placed before him by the Review Committee upon which he could make a considered decision as to whether to consent to the prosecution or to decline to do so. This memorandum was, at the very least, approval in some overt form, an approach approved by the Court of Criminal Appeal in R v Bacon.

77 The evidence in this case demonstrates that the usual process involved the Director General considering, in some detail, the question of whether or not to approve a prosecution. That administrative system suggests that it is the actual intention of the Review Committee and the Director General that endorsement of a recommendation is in fact approval or consent to commence a prosecution. (No point is taken in this case as to whether the use of the word "approval" amounts to a consent but in the light of the judgment of the Court of Criminal Appeal in Kemp this is hardly a concession). Whatever may be made of the intention behind the memorandum and the intention of the Director General in approving the recommendation to commence these prosecutions, the judgment in Lucon makes it clear that attention must be focussed on the substance of the documents and not what may be inferred as the intention of their makers. In my view, on either approach, the substance of the March 2001 memorandum, when signed and approved by the Director General, was to consent to the prosecutions being commenced against the defendants, thus satisfying the requirements of s 48(1)(a) of the Act.

78 In their submissions the defendants have contended that s 48(1) does not confer a right on any person to commence a prosecution under the Act - that right is confined to three specified classes. It was then submitted that Mr Morrison's prosecutions could not survive the challenge to validity if they were, in fact, private prosecutions. I do not need to resolve the issue of the width of s 48(1) although I am inclined to the construction contended for by the defendants (but see Crichton v Victorian Dairies Ltd (1965) VR 49 at 57). It does not appear from the evidence that Mr Morrison has attempted to commence these prosecutions in a private capacity - the applications and their supporting affidavits refer to s 48 and the applications specifically refer to Mr Morrison receiving the written consent of the Director General to institute the prosecutions. It is on this material that I conclude that the prosecutions are not private and to be valid must be consented to by the Director General.

79 A final point taken by Dartbrook was that Mr Morrison could not take the proceeding without having the written consent of the Director General - for Mr Morrison to act on Department practice would offend the provisions of the Public Sector Management Act 1988. For Mr Morrison to be so authorised would require a delegation to him by the Director-General pursuant to s 12. This point is misconceived. There is no suggestion that the Director General was delegating his functions under the Public Sector Management Act to Mr Morrison - nor was he attempting to delegate his authority to give consent to a prosecution under s 48 of the Act. No issue arises as to the evidentiary basis for such a delegation.

80 Although the issue of the standard of proof to be applied in the resolution of these issues was touched upon in the argument, it was suggested by the defendants that the issue did not directly arise in these proceedings. I am able to state that, whatever be the proper standard of proof, I am satisfied that the Director General has given his consent to the prosecutions in these cases. In the absence of full argument on the matter, and in light of the view which I have formed applying the highest standard, it is unnecessary to reach a concluded view on the question of the standard of proof applicable. The debate between the parties, however, has ranged over a number of authorities and, in light of the views expressed by them, my preliminary view is that the civil standard applies. The granting of consent is a question of procedure and that fact is a relevant consideration. In Thompson v The Queen (1989) 169 CLR 1 it was accepted that the principles of the criminal law would not be offended if facts essential to the existence of jurisdiction in the court to enter judgment are required to be established according to the civil standard of proof (see especially p 12-13). This approach was applied to a consideration of the validity of an authority to prosecute by Kennedy J in MacCarron . ORDERS 81 In accordance with the views I have expressed concerning the validity of the consent granted by the Director General to commence these prosecutions, the following orders are made:

1. The Notice of Motion filed by each defendant is dismissed. 2. The defendants are to pay the costs of the prosecution in relation to each Notice of Motion. oo00oo

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.