Industrial Court of New South Wales CITATION: Inspector Hamilton v John Holland Pty Ltd and anor [2009] NSWIRComm 26 PROSECUTOR: Inspector Nathan Hamilton DEFENDANT (Matter Nos 1989 & 1990 of 2007): John Holland Pty Ltd PARTIES: DEFENDANT (Matter Nos 1991 & 1992 of 2007): ACN 061 447 621 Pty Ltd (formerly known as Pells Sullivan Meynink Pty Ltd) INTERVENOR: Attorney General of New South Wales FILE NUMBER(S): IRC 1989 of 2007; IRC 1990 of 2007; IRC 1991 of 2007; IRC 1992 of 2007 CORAM: Boland J President; Walton J Vice-President; Staff J OCCUPATIONAL HEALTH AND SAFETY - Interlocutory proceedings - Prosecutions under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - Notices of motion challenging Industrial Court's jurisdiction to deal with the prosecutions - Constitutional question involving inconsistency between Commonwealth and State laws - Whether because the first defendant was "a non Commonwealth licensee" at the time the charges were laid and, consequently, an "employer" within the meaning of those expressions in the Occupational Health and Safety Act 1991 (Cth), an inconsistency existed between s 4(1) of the Commonwealth Act and the continuing operation of the NSW Act in relation to the first defendant and its employees - Whether the prosecutor was authorised to commence the prosecutions on the ground that the site where the alleged offences occurred was a mine - Further submissions sought as to whether Court should proceed to determine constitutional question in light of proceedings in the High Court that purportedly raised the same question - Held that the site of the incident in each of the charges was not a "mine" at the relevant time within the meaning of the Occupational Health and Safety Act 2000 CATCHWORDS: STATUTORY INTERPRETATION - Occupational health and safety - Interlocutory proceedings - Prosecutions under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - Notices of motion challenging Industrial Court's jurisdiction to deal with the prosecutions - Whether the prosecutor was authorised to commence the prosecutions on the ground that the site where the alleged offences occurred was a mine - Rules of statutory construction - "Context" - Purpose of legislation - Meaning of the word "mine" in Mines Inspection Act 1901 - Meaning of the word "extraction" in Mines Inspection Act 1901 - Held that the site of the incident in each of the charges was not a "mine" at the relevant time within the meaning of the Occupational Health and Safety Act 2000 Coal Mines Regulation Act 1982 Judiciary Act 1903 (Cth) Mine Health and Safety Act 2004 Mines Inspection Act 1901 Mines Inspection Amendment Act 1998 LEGISLATION CITED: Mining Act 1992 Mining Regulation Act 2003 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 1991 (Cth) Occupational Health and Safety Act 2000 Safety, Rehabilitation and Compensation Act 1988 (Cth) Australian Slate Quarries Ltd v Federal Commissioner of Taxation [1923] HCA 69; (1923) 33 CLR 416 Blatch v Archer (1774) 1 Cowp 64 at 65; 98 ER 969 Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 DPP (Cth) v Jeffrey (1992) 58 A Crim R 310 CASES CITED: Waratah Gypsum Pty Ltd v Federal Commissioner of Taxation [1965] HCA 9; (1965) 112 CLR 152 Lennard v Jessica Estates Pty Limited [2008] NSWCA 121; (2008) 159 LGERA 420 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 Purkess v Crittenden (1965) 114 CLR 164 R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 HEARING DATES: 5 February 2009 DATE OF JUDGMENT: 6 March 2009 PROSECUTOR: Mr J V Agius SC with Mr B G Docking and Mr R Reitano of counsel Solicitors: WorkCover Authority of New South Wales Ms F E Miller DEFENDANT (Matter Nos 1989 & 1990 of 2007): Mr G J Hatcher SC with Mr G W McGrath of counsel Solicitors: Herbert Geer Lawyers LEGAL REPRESENTATIVES: Mr R F Lund DEFENDANT (Matter Nos 1991 & 1992 of 2007): Mr I M Neil SC with Ms L M Wilson of counsel Solicitors: Kennedys Lawyers Mr A A Howie INTERVENOR: Ms A M Mitchelmore of counsel Crown Solicitor's Office Ms K Mattes JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, President WALTON J, Vice-President STAFF J Friday 6 March 2009 Matter No IRC 1989 of 2007 INSPECTOR NATHAN HAMILTON v JOHN HOLLAND PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 1990 of 2007 INSPECTOR NATHAN HAMILTON v JOHN HOLLAND PTY LTD Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 Matter No IRC 1991 of 2007 INSPECTOR NATHAN HAMILTON v ACN 061 447 621 PTY LTD (FORMERLY KNOWN AS PELLS SULLIVAN MEYNINK PTY LTD) Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 1992 of 2007 INSPECTOR NATHAN HAMILTON v ACN 061 447 621 PTY LTD (FORMERLY KNOWN AS PELLS SULLIVAN MEYNINK PTY LTD) Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT OF THE COURT [2009] NSWIRComm 26 1 These matters involve challenges brought by way of notices of motion to the Court's jurisdiction to deal with four prosecutions under the Occupational Health and Safety Act 2000 ('NSW OHS Act'). One of the challenges raises a constitutional question involving inconsistency between Commonwealth and State laws. The other concerns the question of whether the prosecutor was authorised to commence the prosecutions on the ground that the site where the alleged offences occurred was a mine, which if that were the case would mean that the prosecutor was not authorised to bring the prosecutions. 2 John Holland Pty Ltd ('first defendant') was part of a joint venture engaged in the construction of the Lane Cove Tunnel that links the Gore Hill Freeway and the M2 Motorway in Sydney. ACN 061 447 621 Pty Ltd (formerly known as Pells Sullivan Meynink Pty Ltd) ('second defendant') was also engaged in the Tunnel's construction, providing various services including geotechnical and geological. 3 On 26 October 2007, Nathan Hamilton, an Inspector employed by the WorkCover Authority of New South Wales commenced prosecutions against the two defendants. It was alleged that both defendants had contravened ss 8(1) and 8(2) of the NSW OHS Act in that from about 27 October 2005 to and including 2 November 2005 "in the MCAA including its intersection with MC5B of the Lane Cove Tunnel" the defendants each failed to ensure the health and safety of employees and other persons. "MCAA" is a reference to the Pacific Highway Exit Ramp Tunnel and "MC5B" is a reference to the Marden Street Ventilation Tunnel. 4 The prosecution of the two defendants arose out of an incident that occurred on 2 November 2005 when it was alleged that employees of Thiess John Holland Joint Venture (of which the first defendant was part), which was contracted to design and construct the Tunnel and associated works, were carrying out excavation works at the junction of MCAA and MC5B. At approximately 1.40 am it was alleged a large section of the Tunnel roof collapsed in the area underneath the junction. The employees working within the Tunnel evacuated the Tunnel as the roof collapsed, thereby escaping injury. 5 Some 13 months after the alleged offences and on 13 December 2006, the first defendant was granted a licence under ss 103 and 104 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ('Cth SRC Act'). The licence was for a fixed period of time. The period was extended until 30 June 2012. The licence remains in force until 30 June 2012 subject to not being suspended or revoked under ss 106 or 107 of the Cth SRC Act. The effect of the operation of the licence is that the first defendant is subject to the rights, liabilities and obligations in the Occupational Health and Safety Act 1991 (Cth) ('Cth OHS Act'). As the prosecutor noted, the first defendant was not subject to those obligations before 13 December 2006. 6 On 13 October 2008, the first defendant filed in this Court notices of motion in respect of the two prosecutions commenced against it. The motions relevantly sought the following declarations and orders: 1. A declaration that this Honourable Court is without jurisdiction to hear or determine these proceedings or purported proceedings against the Defendant. 2. A declaration that the Defendant is and was, at the time and date when these proceedings or purported proceedings were purportedly commenced against it, "a non Commonwealth licensee" within the meaning of that expression in the Occupational Health and Safety Act 1991 (Commonwealth) ("Commonwealth Act") and, consequently, by reason of subsection 4(1), the Commonwealth Act excluded from the application of the Occupational Health and Safety Act 2000 (NSW) ("State Act") to the extent that the State Act relates to occupational health or safety and would otherwise apply in relation to the Defendant. 3. A declaration that (in all the relevant facts and circumstances), at the time and date when the alleged offence occurred, the site of the incident in the charge was a "mine" within the meaning of the State Act (as it then was) and, consequently, the proceedings or purported proceedings against the Defendant were not instituted by a person duly authorised to institute proceedings for an offence under that Act. 4. A declaration that the Order made on 26 October 2007 charging the Defendant with an offence under the State Act is invalid and null and void. 5. An order that these proceedings be dismissed or stayed permanently. 6. An order that the Prosecutor pay the Defendant's costs of and incidental to this application, and of and incidental to these proceedings. 7. Such further or other relief as the Court thinks proper. 8. An order that this application be heard at a preliminary jurisdictional hearing separate from any trial of the offence charged against the Defendant in these proceedings. … 7 In the grounds and reasons supporting the motions it was pleaded that: 1. Inspector Nathan Hamilton of the Workcover Authority of NSW ("Prosecutor") initiated or purported to initiate a prosecution in this Honourable Court against John Holland Pty Limited ("John Holland") for alleged breach of s.8 of the Occupational Health And Safety Act 2000 (NSW) ("State Act") during the period from 27 October to 2 November 2005. 2. On 26 October 2007 the Prosecutor applied for the Order initiating or purporting to initiate the prosecution and the Order was made and entered on that same date. 3. By the time and date when the Prosecutor initiated or purported to initiate the prosecution, John Holland was " a non Commonwealth licensee " and, consequently, an " employer " within the meaning of those expressions in the Occupational Health and Safety Act 1991 (Commonwealth) ("Commonwealth Scheme"). John Holland became a non-Commonwealth licensee under the Commonwealth Scheme on 1 January 2007 and remains a licensee under that Scheme. 4. Subsection 4(1) of the Commonwealth Scheme provides, relevantly, that the Scheme is intended to apply to the exclusion of any law of a State (other than a law prescribed under subsection 4(3)) to the extent that the State law relates to occupational health or safety and would otherwise apply in relation to, inter alia , "employers" within the meaning of that expression in the Scheme. 5. Subsection 4(3) of the Commonwealth Scheme provides, relevantly, that if a State law deals with a matter in relation to occupational health or safety that is not dealt with under the Commonwealth Scheme, the regulations may prescribe that State law as not being intended to be excluded by the Commonwealth Scheme. 6. No regulation, transitional or other provision of the Commonwealth Scheme affects the above-mentioned operation of s. 4(1) of the Scheme in relation to John Holland. 7. There is an inconsistency between s. 4(1) of the Commonwealth Scheme and the continuing operation of the State Act in relation to John Holland and its employees, and the Commonwealth Scheme prevails and ousts the operation of the State Act (which to the extent of the inconsistency is rendered invalid by s. 109 of the Commonwealth of Australia Constitution Act ) in relation to the matters that are the subject of the prosecution or purported prosecution. 8. By reason of the matters in grounds 1 to 7 above, this Honourable Court is without jurisdiction to hear or determine these proceedings or purported proceedings initiated by the Prosecutor against the Defendant. 9. Further or alternatively, at all material times prior to the amendments to the Occupational Health and Safety Act 2000 (NSW) ("State Act") commencing on 31 August 2008, the " premises " where the alleged offence occurred constituted a " mine " within the meaning of that expression in s.4 of the State Act (as it then was). Consequently, the proceedings or purported proceedings against the Defendant were not instituted by an inspector who was on 26 October 2006 duly authorized under s.47A of the State Act (as it then was). 10. At all material times prior to 31 August 2008, s.4 of the State Act provided inter alia that " mine " had " the same meaning as in the Mines Inspection Act 1901 ". The Mines Inspection Act 1901 (NSW) (now repealed) in turn, in s. 4A, then defined " mine " as meaning any " any aboveground or underground site where any of the following activities take place: … (b) extraction of metals or minerals ". 11. The " premises " where the alleged offence occurred were a site where inter alia the activity of extraction of metals or minerals (within the meaning of the Mines Inspection Act 1901 (NSW) (repealed), including but not limited to sandstone, took place. 12. By reasons of the matters in grounds 9 to 11 above, this Honourable Court is without jurisdiction to hear or determine these proceedings or purported proceedings initiated by the Prosecutor against the Defendant. 13. In the above premises, this Honourable Court would dismiss or stay permanently these proceedings or purported proceedings initiated by the Prosecutor against the Defendant, with costs. 8 It may be seen that the first defendant's challenge to the Court's power to deal with the prosecutions rested on two bases: (1) that because the first defendant was "a non Commonwealth licensee" and, consequently, an "employer" within the meaning of those expressions in the Cth OHS Act, an inconsistency existed between s 4(1) of the Cth OHS Act and the continuing operation of the NSW OHS Act in relation to the first defendant and its employees. By virtue of s 109 of the Commonwealth Constitution, the Cth OHS Act prevailed and ousted the operation of the State Act in relation to the matters that are the subject of the prosecution, and (2) that the site of the incident (the Lane Cove Tunnel collapse in 2005) giving rise to the prosecutions was at the time when the alleged offences occurred, a "mine" within the meaning of the NSW OHS Act (as it then was) and, consequently, the investigation into the incident was not undertaken, nor were the prosecutions instituted, by a person duly authorised to institute proceedings for an offence under that Act because the prosecutor was an inspector appointed under s 47 of the NSW OHS Act (as it then was) and not s 47A. A person appointed as an inspector under s 47 was not authorised to exercise functions under the NSW OHS Act in relation to a mine. 9 The second defendant filed notices of motion on 20 November 2008 challenging the Court's jurisdiction to deal with the prosecutions against it essentially on the same grounds pleaded by the first defendant in relation to the site being a mine. There was no challenge by the second defendant on any constitutional ground. 10 Notices of a Constitutional Matter (see s 78B of the Judiciary Act 1903 (Cth)) were given to the Attorneys General of the Commonwealth and each of the States and Territories. Only the Attorney General for New South Wales chose to appear in the proceedings and, in doing so, supported the position taken by the prosecutor, namely, there was no inconsistency so as to preclude the bringing of the proceedings against the first defendant. CONSTITUTIONAL ISSUE 11 As to the constitutional issue, the Full Bench was advised that proceedings have been brought in the Federal Court of Australia by corporations other than the first defendant, which raises the same point for determination as that which is before us. We were also advised that there are proceedings before the High Court of Australia in its original jurisdiction, brought by a defendant in Victoria that raises the same constitutional issue. It was suggested that one course open to the Full Bench would be to defer any decision on the constitutional issue, at least until the High Court had dealt with it. 12 Given the potential for the constitutional issue to be dealt with in the High Court, we have decided to confine our decision at this stage to the mine issue, which is dealt with below. Whether we should proceed to deal with the constitutional issue in light of our decision on the mine issue, is a matter we desire the parties to address the Full Bench on at 9.30 am on Friday 13 March 2009. MINE ISSUE The Tunnel 13 The issue under this heading is whether the place that is the subject of the charges was a mine. As earlier explained, if it was a mine, the prosecutor was not authorised to institute the proceedings against the first and second defendants and the Court would be without jurisdiction to hear or determine these proceedings. 14 The Lane Cove Tunnel Project was a 3.6 kilometre stretch of underground tunnel that involved tunnelling under the Pacific Highway at Lane Cove and constructing roadways through the east bound and west bound tunnels each of two lanes, entry and exit ramps, and ventilation tunnels. The tunnels are primarily through Hawkesbury Sandstone and, at the final northern section of the Marden Street ventilation tunnel on control line MC5B and the easterly section of the Pacific Highway Exit ramp on control line MCAA, through Ashfield Shale. 15 The objectives of the Project were set out in the Project Deed. The first three of these appear to be the main objectives: (a) improve the efficiency of east-west travel along the corridor for road based transport modes through a reduction in congestion and improved travel times; (b) improve air quality and reduce traffic noise, particularly along the arterial road network, through a reduction in surface traffic volumes and congestion; (c) improve the amenity of the local community through: (i) improving safety, connectivity and access for pedestrians and cyclists on Epping Road; (ii) improving air quality and reducing traffic noise along the arterial road network; (iii) reducing traffic and congestion on Epping Road and other roads; (iv) improving local access by reducing restrictions on traffic turning movements on Epping Road; and (v) enhancing the urban fabric of the Lower North Shore; … We note that none of the Project's objectives refer to the mining or extraction of minerals or metals. The legislation 16 The NSW OHS Act presently provides for the definition of a "mining workplace" as meaning a place of work: (a) that is a mine to which the Mine Health and Safety Act 2004 applies, or (b) at which activities under the Petroleum (Onshore) Act 1991 or the Petroleum (Offshore) Act 1982 are carried out. 17 Section 3 of the Mine Health and Safety Act 2004 refers to s 6 of that Act for the definition of a "mine". The definition is extensive and for present purposes it is only necessary to refer to s 6(1): (1) This Act applies to the following places of work (which are called mines in this Act): (a) any place where the extraction of material from land for the purpose of recovering minerals or quarry product is carried out, (b) any place where the treatment of any such extracted material, or the treatment of minerals or quarry product, is carried out, if that place is at or near the place from which the material, minerals or quarry product were extracted, (c) any place where the storage or treatment of waste resulting from: (i) the extraction of material from land for the purpose of recovering minerals or quarry product, or (ii) the treatment of minerals or quarry product, is carried out, if that place is at or near the place from which the material, minerals or quarry product were extracted, (d) any place where recycling operations are carried out, if that place is at or near the place from which material was extracted from land for the purpose of recovering quarry product to be used in the recycling operations, (e) any place where the manufacturing of ready-mix concrete or bitumen hot mix is carried out, if that place is: (i) at or near a place from which material was extracted from land for the purpose of recovering quarry product, and (ii) under the control of the same person or entity that has control of the place referred to in subparagraph (i), (f) any place where mining exploration is carried out, Note. See subsection (6). (g) any place where the treatment of zircon, rutile, ilmenite, monazite and associated minerals is carried out, (h) any place where offshore exploration or mining activities within the meaning of the Offshore Minerals Act 1988 are carried out, (i) any place where operations associated with the care, security or maintenance of a place referred to in paragraph (a)–(h), (j) or (k) are carried out during any time when activities or operations at that place are suspended, (j) any place where operations associated with the decommissioning or abandonment of a place referred to in paragraph (a)–(i) are carried out, (k) any place where an activity or operation referred to in paragraph (a)–(j) is or has been carried out, and that is being rehabilitated. 18 The current version of the NSW OHS Act only applied from 1 September 2008. The version of the NSW OHS Act that applied at the time of the incident giving rise to these prosecutions, at the time the prosecutions were initiated, and up until 31 August 2008, provided for the definition of a "mine" as having the same meaning as in the Mines Inspection Act 1901. The Mines Inspection Act in s 4A defined a "mine" as follows: 4A Definition of "mine" (1) In this Act, mine means any aboveground or underground site where any of the following activities take place: (a) exploration for metals and minerals, (b) extraction of metals or minerals. (2) Without limiting subsection (1), mine includes: (a) the treatment of metals or minerals extracted from a site referred to in subsection (1) if the treatment is carried out at a place at, adjoining or near the site, and (b) any machinery, equipment, appliance or plant, whether moveable or not, or any building, laboratory, tunnel, drift, haul road or other structure or work, that is situated at a site referred to in subsection (1) and that is used in connection with an activity referred to in subsection (1), and (c) any place where waste resulting from an activity referred to in subsection (1) is stacked, stored or treated if the place is at, adjoins or is near the site where the activity takes place, and (d) any quarry and any ready mix concrete or bitumen hot mix plant that adjoins, and is in common ownership with, the quarry (whether or not the plant uses material excavated from the quarry in the manufacture of the concrete or bitumen), and (e) any place on which treatment and separation plants are installed for the recovery and treatment of zircon, rutile, ilmenite, monazite and associated minerals, and (f) any part of a site referred to in subsection (1) where environmental rehabilitation is being carried out (irrespective of whether mining operations at the site have been completed), and (g) any abandoned mine (other than an abandoned mine used for the storage, treatment or disposal of waste that is unconnected with an activity referred to in subsection (1)), and (h) any place where operations for the care, security and maintenance of a site referred to in subsection (1) are being carried out during any time when mining operations at the site are suspended, and (i) any place where restoration, decommissioning or abandonment operations of a site referred to in subsection (1) are being carried out. 19 Notably, the Mines Inspection Act defined "metal and mineral" to include "sandstone": see s 4. There was evidence that at the site of the Tunnel and between about October or November 2004 and about the middle of 2006, sandstone and shale "were being removed by a road header and underground dump trucks and removed from the site by road trucks." 20 We note that the Mines Inspection Act was repealed by s 191(a) of the Mine Health and Safety Act 2004 with effect from 1 September 2008. It was in force, however, at times material to the present prosecutions and supplied the definition of a mine for the purposes of the NSW OHS Act prior to 1 September 2008. 21 At times material to the present prosecutions, the NSW OHS Act provided in s 106: 106 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) with the written consent of a Minister of the Crown, or (b) with the written consent of an officer prescribed by the regulations, or (c) by an inspector, or (d) 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 a Minister or a prescribed officer, is evidence of that consent without proof of the signature of the Minister or prescribed officer. 22 Section 4 of the same Act defined "inspector" as "an inspector appointed under Division 1 of Part 5". That Division relevantly provided: 47 Appointment of inspectors (otherwise than in connection with mines or coal workplaces) (1) WorkCover may appoint as inspectors for the purposes of this Act and the regulations any of the following persons: (a) a statutory officer, (b) a public servant, (c) a person employed by a public or local authority, (d) a person belonging to a class of persons prescribed by the regulations. (2) A person appointed as an inspector under this section is not authorised to exercise functions under this Act in relation to a mine or a coal workplace. 47A Appointment of inspectors in connection with mines (1) The Minister may appoint as an inspector for the purposes of this Act and the regulations any person who is, or could be appointed or designated as, an inspector, mine safety officer or investigator under the Mines Inspection Act 1901. (2) An instrument appointing a person as an inspector under this section may limit the functions that the person has as such an inspector. (3) A person appointed as an inspector under this section is only authorised to exercise functions under this Act in relation to a mine, but may exercise functions under Division 2 in relation to premises other than a mine for the purpose of investigating any matter under this Act in relation to a mine. 23 It was common ground that the prosecutor in these proceedings was appointed by the WorkCover Authority under s 47(1) and not the Minister under s 47A. The defendants' submissions 24 The defendants provided comprehensive written submissions. Mr I Neil SC with Ms L Wilson of counsel led the oral submissions for both defendants on the mine issue. Those submissions consisted of three main propositions, which also encapsulated the main points raised in the written submissions: (1) that the prosecutor carried the onus of proving that s 47(2) of the NSW OHS Act did not apply; (2) section 4(1) of the Mines Inspection Act relevantly applied to a site where one or more stipulated activities take place. One of those activities was identified in s 4A(1)(b) of the Mines Inspection Act as the "extraction of … minerals". The context and syntax of s 4A indicated an intention to use the word "site" to describe the whole of the discrete workplace in which a stipulated activity took place, regardless of where or when the stipulated activity happened to take place from time to time. It cannot have been intended that the application of s 4A(1)(b) was to be confined only to those parts of the workplace in which the activity of extracting minerals was actually taking place at a particular time. That being so, the essential nature of a tunnel is that the material through which the tunnel is driven is taken out to create a void. When the material is taken out of the tunnel, it is "extracted" according to the natural and ordinary meaning of the word. The majority of the tunnelling work that took place at the Lane Cove Tunnel Project was through sandstone, which is identified as a mineral in s 4 of the Mines Inspection Act . That is enough to satisfy the requirements of s 4A(1)(b) of the Mines Inspection Act ; and (3) the prosecutor contended that the underground activities of the defendants did not fall within the ordinary or literal meaning of the word "extraction" that made up part of the phrase "extraction of metals or minerals" (as used in the s 4A definition of "mine" of the Mines Inspection Act ) because those activities did not have the object of extraction of, the getting of, the purpose of producing as a product or the purpose of winning any of the substances that made up the Ashfield Shale, Dyke or Hawkesbury Sandstone. However, a purposive element was not an essential requirement of the application of s 4A(1)(b) of the Mines Inspection Act . By its ordinary and natural meaning as it was used in s 4A(1)(b), the word "extraction" is concerned only with the act of taking a mineral out of the ground. Why that was done, or what was done with the mineral thereafter, is extraneous and therefore irrelevant to s 4A(1)(b). Prosecutor's submissions 25 In summary, the prosecutor contended that the place alleged in each Application for Order was not a "mine" within the meaning of the NSW OHS Act which picked up the s 4A definition of "mine" in the Mines Inspection Act for the following reasons: (a) the underground activities of the defendants did not fall within the ordinary or literal meaning of the word "extraction" that made up part of the phrase "extraction of metals or minerals" because those activities did not have the object of extraction of, the getting of, the purpose of producing as a product or the purpose of winning any of the substances that made up the Ashfield Shale, Dyke or Hawkesbury Sandstone; (b) the underground activities of the defendants did not fall within the technical, commercial or industry meaning of the word "mine" nor the phrases "extraction of metals or minerals" or "mining operations" as shown by how the activities were contemporaneously described by the designers, constructors and geotechnical professionals connected with the Lane Cove Tunnel Project; (c) the context of the surrounding provisions in the Mines Inspection Act and the background provided by other statutory provisions that formed a scheme of legislation, namely, the Mining Act 1992 (NSW) and Mining Regulation 2003 (NSW), required that the charge place be a "mining operation" or a "mining area", or both, and it was not open to find that the facts fell within the meaning of these expressions; (d) one purpose of the Mines Inspection Amendment Act 1998 that introduced the s 4A definition of "mine" was to widen the definition if events were caused by mining operations or arose out of a mining area, however, the charge place was not such a site; and (e) the operation of the statutory provisions contended for by the defendants is "absurd", "extraordinary", "capricious", "irrational" or "obscure". Putting it another way, the inconvenience or improbability of the result is against the defendants. 26 Furthermore, noting the gaps in the evidentiary material that had been filed and served by the defendants, the prosecutor contended that neither Ashfield Shale nor the Dyke that were excavated during the charge period at the charge place fell within the definition of "metal and mineral" in s 4(1) of the Mines Inspection Act. 27 The prosecutor also submitted that it was for the defendants to satisfy the Court in respect of their motions that the relevant place in the charges was a mine. They had not done so. That is to say, the defendants had an evidentiary onus, which had not been discharged: see DPP (Cth) v Jeffrey (1992) 58 A Crim R 310 at 313; Purkess v Crittenden (1965) 114 CLR 164 at 168, 171; Blatch v Archer (1774) 1 Cowp 64 at 65; 98 ER 969 at 970. CONSIDERATION OF MINES ISSUE 28 There was no difference between the parties that if the place alleged in each Application for Order was a mine, the prosecutor was not authorised to institute proceedings against the defendants under the NSW OHS Act as it applied at the relevant time. This is because the prosecutor was appointed as an inspector by the WorkCover Authority pursuant to s 47(1) of the NSW OHS Act and by virtue of s 47(2) was not authorised to exercise functions under that Act in relation to a mine. One of the functions of an inspector was to institute proceedings for an offence against the Act: s 106. 29 The central question to be decided in this case, therefore, is whether the definition of "mine" in the NSW OHS Act at the relevant time - a definition imported from the Mines Inspection Act - means that the place that is the subject of the charges was a mine. Whether the place was a mine is to be determined in accordance with the relevant principles that apply to statutory interpretation. In that regard, the defendants placed particular reliance on the terms of s 4A(1)(b) of the Mines Inspection Act, which provides that "…mine means any aboveground or underground site where any of the following activities take place … (b) extraction of metals or minerals." It was submitted that because the activity of extracting sandstone (defined as a mineral) took place at the site ("site" to be regarded as the project site and not confined to the precise location where the collapse occurred) it necessarily followed that the site was a mine. It was submitted that the purpose of the activity of extracting the sandstone was irrelevant; all that needed to happen in order for the site to be regarded as a mine for the purposes of the NSW OHS Act was the activity. The statutory definition of "mine", it was submitted, was clear and unambiguous and displaced any technical, commercial or industry meaning of that expression. Rules of statutory construction 30 The rules of statutory construction allow the courts to avoid an irrational or absurd result of a particular interpretation unless the language of the provision in question is intractable or where, although the language is not intractable, the operation of the provision, read literally, is such as to indicate that it could not have been intended by the draughtsperson: Lennard v Jessica Estates Pty Limited [2008] NSWCA 121; (2008) 159 LGERA 420 per Tobias JA at [52], citing Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 per Mason and Wilson JJ at 321 where their Honours said: On the other hand, when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended. 31 In Lennard, Tobias JA also referred with approval to R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681. In that case, Spigelman CJ observed (at 687 [13]-[15]): [13] The contemporary approach to construction is well described as 'literal in total context' (E Dreidger Construction of Statutes (2nd ed, 1983) p2). See eg CIC Insurances Ltd v Bankstown Football Club Ltd (1995-97) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490; 72 ALJR 841 at [69]. The courts no longer "make a fortress out of the dictionary" ( Cabell v Markham 148 F2d 737 (1945) at 739 per Learned Hand J. [14] Putting to one side obvious typographical errors (see Bennion Statutory Interpretation (3rd ed, 1997) pp675-677), the court supplies words "omitted" by the draftsperson only in the sense that the words so included reflect in express, and therefore more readily observable, form, the true construction of the words actually used. In my opinion, the authorities do not warrant the court supplying words "omitted" by inadvertence per se. [15] Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed. ( McAlister (1990) 169 CLR 324 at 330; R v Di Maria (1996) 67 SASR 466 at 472-474). If a court can construe the words actually used by the Parliament to carry into effect the Parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the Court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction. "Extraction" 32 This is a case that hinges on the proper construction to be given to the word "extraction" in s 4A(1)(b) of the Mines Inspection Act. The defendants say the word should be given its plain and ordinary meaning, whereas the prosecutor contends that to do so would lead to an irrational or absurd result and that the word must be read down to be consistent with the purpose of the legislation. 33 The word "extraction" is defined in the Macquarie Dictionary (fourth edition, 2005) relevantly, as a noun, as "the act of extracting". "Extract", as a verb, is defined as "to draw forth or get out by force: to extract a tooth." The Oxford English Dictionary On Line (Oxford University Press, 2008) defines "extraction" as "The action or process of drawing (something) out of a receptacle; the pulling or taking out (of anything) by mechanical means; withdrawal or removal (of a person); an instance of this." The quotations referring to the use of the word in relation to mining cite: "1794 MORSE Amer. Geog. 592 The extraction of gold [from mines] is neither very laborious nor dangerous in Brazil." 34 The pulling or taking out (of anything) by mechanical means as a definition of extraction, or "to draw forth or get out by force", clearly would encompass the taking out of sandstone in the Lane Cove Tunnel if one accepts the word should be given its plain and ordinary meaning. The difficulty we have, however, with accepting that proposition is that it would lead to an irrational outcome. 35 The Hawkesbury sandstone formation is the surface bedrock in the centre of the Greater Sydney Basin. Most of the city of Sydney lies on Hawkesbury sandstone. It is not surprising, therefore, that most of the tunnelling for the Lane Cove Tunnel was through Hawkesbury sandstone. The construction placed on the word "extraction" by the defendants would mean that any activity involving the extraction of sandstone in the Sydney region, regardless of the purpose of the extraction, would necessarily be a mine, thereby attracting all of the statutory requirements of the Mines Inspection Act. In that regard it might be noted, for example, that s 7(1) of the Mines Inspection Act provided: (1) The Minister shall grant a certificate of competency as production manager to every applicant who is duly reported by the board of examiners to have passed the examination satisfactorily, and to have given satisfactory evidence of the applicant's sobriety, qualifications, experience, ability, and general good conduct, and that the applicant has had practical experience in a mine for at least three years. 36 The consequence of the defendants' position would be that the extraction of sandstone for the purpose of laying a foundation for a house or other building or creating a pathway, garden or backyard swimming pool, would cause that site to be a mine requiring, inter alia, a production manager to be appointed who satisfied the special requirements of s 7(1) of the Mines Inspection Act. In cases where s 41 of the Mines Inspection Act applied, it would also require "an accurate plan of the proposed workings of the mine to be prepared in accordance with [s 41] by: (a) a qualified mining engineer, or (b) a production manager, or (c) a registered mining surveyor". We do not believe any of this could have been the intention. Context 37 Section 4A(1)(b) of the Mines Inspection Act referred to the activity of "extraction of metals or minerals." But that has to be seen in the context of a statute that dealt with mines and the mining of metals or minerals. The long title of the Mines Inspection Act was "An Act to make better provision for the regulation and inspection of mines other than coal and shale mines; to regulate the treatment of the products of such mines; and for purposes incidental to or consequent on those objects." Another aspect of the context are the provisions of s 4A(2) which, whilst expanding the ordinary meaning of the word "mine", concern activities that are either associated with a mine, a mining process or the extraction of metal or minerals (we deal separately with the matter of a quarry below). Likewise, the elaborate system of regulation in the Mines Inspection Act colours the word "extraction" in s 4A(1)(b) so as to limit the word, on a purposive construction, to activities associated with mining as contemplated in the Act - extraction for the purpose of mining metals and minerals. So the Act was concerned, inter alia, with the regulation and inspection of mines where the activity was the extraction of metals or minerals other than coal or shale. 38 Thus, it may reasonably be expected that the owner of an operating mine subject to the provisions of the Mining Inspection Act would be engaged in mining for metals or minerals. That is to say, the owner of a mine would be engaged in the activity of mining for the purpose of extracting metals or minerals - "mining in the sense of sinking a shaft and tunnelling in pursuit of a desired substance": NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 513 per Kitto J. It is clearly the case on the evidence that the defendants were not engaged on the Lane Cove Tunnel Project for the purpose of extracting sandstone, but rather for the purpose of constructing a tunnel to build a roadway. In our opinion, the defendants were engaged in civil engineering works, that is, the excavation of, or tunnelling through, sandstone for the purpose of building a roadway. The removal of sandstone was merely a necessary incident of creating a tunnel in which to construct the underground roadway. 39 In Blue-Metal Quarries the majority (Dixon CJ, Williams and Taylor JJ) remarked at 524: "No one speaks of a bluestone mine. The phrase would sound odd and incongruous." The same, we think, can be said of a "sandstone mine", the extraction of sandstone being usually associated with quarrying. Whilst the extended definition of "mine" in the Mines Inspection Act included a quarry, "quarry" was defined in that Act as meaning: any place, open cut, or excavation wherein or whereby any operation is carried on above ground for or in connection with the purpose of obtaining any metal or mineral other than coal or shale and any place adjoining thereto on which any product of the quarry is stacked, stored or treated (our emphasis). The excavation of a tunnel for the purpose of building a motorway could hardly be described as a quarry. 40 Another way of looking at the issue is that an owner of a mine engaged in the activity of extraction of minerals could be said, as a matter of ordinary English usage, to be engaged in mining operations. We note that s 4A(2)(f) and (h) of the Mines Inspection Act in fact referred to "mining operations": f) any part of a site referred to in subsection (1) where environmental rehabilitation is being carried out (irrespective of whether mining operations at the site have been completed), and … (h) any place where operations for the care, security and maintenance of a site referred to in subsection (1) are being carried out during any time when mining operations at the site are suspended, and… See also s 41(1A) of the Mines Inspection Act , which required an accurate plan to be prepared "before the commencement of any mining operations". 41 The Mines Inspection Act did not define "mining operations". The principal legislation regulating the mining industry (other than coal mining) is the Mining Act 1992 and it did define "mining operations" as meaning "operations carried out in the course of mining". The Mining Act, however, did not (and does not) cover the extraction of sandstone because sandstone was not defined as a mineral for the purpose of that statute in circumstances where the Act applied to the "prospecting for and mining minerals". The definition of "mining operations" in that Act is, therefore, of limited assistance. 42 However, the term "mining operations" has been considered judicially. In Australian Slate Quarries Ltd v Federal Commissioner of Taxation [1923] HCA 69; (1923) 33 CLR 416 Knox CJ observed at 418-419: Operations undertaken for the purpose of obtaining a mineral may be fairly described as mining operations. 43 In the same case, Starke J said at 424: In a general way, excavating the earth for the purpose of obtaining metals, metallic ores, or minerals is ordinarily and popularly described in Australia as a mining operation. 44 In Waratah Gypsum Pty Ltd v Federal Commissioner of Taxation [1965] HCA 9; (1965) 112 CLR 152, McTiernan J observed at 160: But there are certain metals, minerals and substances which have been traditionally recovered by underground workings. They have thus become associated in idea with the concept of a mine and the association of ideas has made it inevitable that whatever the form of the excavation that is made for the purpose of winning them, whether underground or open-cast, it will be called a mine and the operations will be called mining. No evidence of purpose to extract minerals 45 It may be seen that in each of these authorities "mining operations" has been considered to have a purpose, namely, obtaining or winning minerals from the earth. A mine will have been created for a particular purpose. Where the activity in the mine is the extraction of a mineral one may reasonably conclude the purpose of the mine is to extract a mineral or minerals from the earth. If one were to regard the Lane Cove Tunnel as a mine, was the purpose to extract minerals? 46 There is not a scintilla of evidence to suggest that was the case. None of the documentary material in evidence emanating from the defendants suggest the Tunnel was a mine or that mining operations involving the activity of extracting minerals were to be carried out: § the Design and Construction Deed to which the first defendant was a party (jointly and severally with Thiess Pty Ltd, both companies being referred to as the 'Contractor') allows the Trustee (Lane Cove Tunnel Nominee Company Pty Limited) to engage the Contractor "to plan, design, construct and commission the Project Works and to carry out the Contractor's works…" Project Works is defined in the Deed to mean "the physical works which the Trustee must design, construct and complete under the Project Deed including: (a) the Motorway; (b) the Service Works; (c) the Local Road Works; and (d) the Property Works…" There was no mention of a mine or mining works; § the project site was referred to in the Deed as a "Construction site", not a mine or mining operation; § there was no reference to a mine or mining or, in specific terms, the extraction of minerals (including sandstone) in the Project Deed; § there was no reference to a mine or mining or, in specific terms, the extraction of minerals (including sandstone) in the Report into the causes of the subsidence by Professor Brown dated 2 November 2005; § there was no reference to a mine or mining or, in specific terms, the extraction of minerals (including sandstone) in the article "Design of the Lane Cove Tunnel, Sydney" by D J Maconochie, N Loganathan and R Bertuzzi. Section 44 of Mines Inspection Act 47 Section 44 of the Mines Inspection Act, as it applied at the relevant time, lends support for the construction we have placed on s 4A(1)(b). That section provided: In the case of any mine in or about which any person is employed: (a) where any working is commenced: (i) for the purpose of sinking a shaft or driving a tunnel for the purpose of opening up a vein, lode or mineral deposit, or (ii) in connection with quarrying operations, or … the owner or general manager of the mine shall give notice thereof to an inspector, within fourteen days after the commencement, abandonment, discontinuance, recommencement, or change; and if such notice is not given, the owner or general manager shall be guilty of an offence against this Act. In the present case, according to the evidence, the purpose of driving the tunnel was to build a roadway. Definition of "mine" pre-1998 48 It is instructive to consider the history of the coverage of mines by the occupational health and safety legislation. The predecessor of the NSW OHS Act, the Occupational Health and Safety Act 1983, did not contain a definition of mine, but it applied to mines by virtue of the general definitions of "place of work" and "premises" in s 4 of that Act, except that Division 4 of Part 3 of the Act did not apply to a mine within the meaning of the Mines Inspection Act 1901 or the Coal Mines Regulation Act 1982. Division 4 of Part 3 dealt with the appointment and powers of inspectors. The NSW OHS Act commenced on 1 September 2001 and, in doing so, repealed the 1983 Act. As it will have been seen, the NSW OHS Act imported the definition of mine from the Mines Inspection Act. The definition of mine in that Act was amended in 1998 (by the Mines Inspection Amendment Act 1998 No 69) when the definition being relied upon by the defendants was included. Prior to that amendment the definition of mine in the Mines Inspection Act was as follows: " Mine " means and includes any place, open cut, shaft, tunnel, drive, level, or other excavation, drift, gutter, lead, vein, lode, or reef wherein or whereby any operation is carried on for or in connection with the purpose of obtaining any metal or mineral other than coal or shale, by any mode or method, and any place adjoining thereto on which any product of the mine is stacked, stored or treated, and any place whether adjoining thereto or not on which the treatment of zircon, rutile, ilmenite, monazite and associated minerals are installed, and also includes: (a) any quarry; (a1) any place where mining operations are carried out by means of dredging, pumping, sluicing or similar method; (b) any place where two or more men are employed in connection with prospecting operations for the purposes of discovery or exploration of or for any metal or mineral whether by drilling or any other method; and (c) so much of the surface of any place and the buildings, workshops, changehouses, structures and works thereon, whether completed or in course of construction or erection, surrounding or adjacent to the shaft, outlets or site, of a mine as hereinbefore defined as are occupied by the owner together with the mine for the purposes of or in connection with the working of the mine, or the removal from the mine of refuse, or the health, safety or welfare of persons employed in, at or about the mine. It will be noted the definition refers to "the purpose of obtaining any metal or mineral …" Legislative intention 49 The new definition inserted by the Mines Inspection Amendment Act 1998 (and the one presently relied upon by the defendants) appears to have come about by virtue of Parliament's desire to conform to the International Labour Organisation's Convention No. 176 on safety and health in mines. The second reading speech (Hansard, Legislative Council, 24 June 1998) stated: The Mines Inspection Act 1901 and the General Rule made under it provide the ground rules for the safe operation of mines, other than coal and shale mines, in New South Wales. The International Labour Organisation - ILO - recently published Convention No. 176 on safety and health in mines. As part of this Government's commitment to the highest standards of safety in mines in New South Wales, the Mines Inspection Act and the General Rule were reviewed to ensure compliance with the ILO standard. The Mines Inspection Amendment Bill amends the Mines Inspection Act 1901 to bring it into line with the ILO convention. A wide-ranging consultation took place during the drafting process. The Mines Inspection Act is also to be amended so that it reflects current standards. The Act presently covers all quarries, along with certain processing plants associated with quarries, such as ready-mix concrete and asphalt plants. Salient features of the bill are: the definitions of "mine" and "treatment" have been widened to bring these sites under the jurisdiction of the mines inspectorate, and mines inspectors are given jurisdiction over certain events that occur outside mines if they are caused by mining operations. This will eliminate any uncertainty as to whether these matters are the responsibility of WorkCover or the mines inspectorate. For example, flying rock propelled out of a mining area by blasting will become part of the inspectorate's jurisdiction. Previously, it was unclear whether such damage was a matter for WorkCover, the mines inspectorate or some other authority. WorkCover supports the new definitions. Currently an increasing number of people are involved in the management of mines, who do not come from a traditional engineering background. A manager of a mine either has to have formal qualifications acceptable to a board of examiners, or must hold a permit to manage an operation employing no more than 20 people. The Act does not presently allow for people who may wish to manage mines but do not fit the current criteria. Thus an artificial barrier has been created. It is therefore proposed to create a class of mine manager, called general managers, who will have the responsibility for daily supervision, control and management at their mines. General managers need not have mining qualifications. However, if they do not and the mine employs more than 20 people, they must appoint a person with those qualifications to supervise production in their mines. 50 ILO Convention No. 176, Safety and Health in Mines Convention, 1995 relevantly provides: Article 1 1. For the purpose of this Convention, the term mine covers - (a) surface or underground sites where the following activities, in particular, take place: (i) exploration for minerals, excluding oil and gas, that involves the mechanical disturbance of the ground; (ii) extraction of minerals, excluding oil and gas; (iii) preparation, including crushing, grinding, concentration or washing of the extracted material; and (b) all machinery, equipment, appliances, plant, buildings and civil engineering structures used in conjunction with the activities referred to in (a) above. 51 The similarity between Article 1(a) of the ILO Convention and the definition of mine at s 4A(i) inserted into the Mines Inspection Act in 1998 is obvious. Also obvious is Parliament's intention to widen the definitions of "mine" and "treatment" to bring certain sites under the jurisdiction of the mines inspectorate, and to give mines inspectors jurisdiction over certain events that occurred outside mines if mining operations caused them. 52 There was nothing in the second reading speech to suggest it was Parliament's intention in amending the Mines Inspection Act in 1998 that any activity involving the extraction of minerals, regardless of the purpose of the extraction (eg, removal of spoil containing sandstone in order to build a car park), was to be regarded as a mine. Such a broadening of the definition from what previously applied would have had very significant implications for, amongst others, the civil engineering industry, yet nothing was said in the second reading speech about such implications. Mine Health and Safety Act - definition of mine 53 The definition of mine in the NSW OHS Act, as supplied by the Mines Inspection Act, continued to apply until 1 September 2008 when the Mines Inspection Act was repealed by the Mine Health and Safety Act 2004. At the same time, the NSW OHS Act was amended by the Mine Health and Safety Act. The amendments replaced the definition of mine in s 4 of the NSW OHS Act as follows: mining workplace means a place of work: (a) that is a mine to which the Mine Health and Safety Act 2004 applies, or (b) at which activities under the Petroleum (Onshore) Act 1991 or the Petroleum (Submerged Lands) Act 1982 are carried out. 54 Section 47A was also amended to read: 47A Appointment of inspectors in connection with mining workplaces A person appointed as a government official under the Mine Health and Safety Act 2004 is taken to have been appointed as an inspector for the purposes of this Act and the regulations. Such a person is only authorised to exercise functions under this Act in relation to a mining workplace, but may exercise functions under Division 2 in relation to premises other than a mining workplace for the purpose of investigating any matter under this Act in relation to a mining workplace. 55 The defendants submitted that the effect of inserting "mining workplace" in lieu of "mine" in the NSW OHS Act was that the "activities" test for determining whether or not a site was a mine for the purposes of that Act was changed to a purposive test. The result was achieved by the combined effect of the amended sections 3 and 6 of the Mine Health and Safety Act. It was submitted that if it had applied at the material times, a purposive test such as that incorporated into the NSW OHS Act from 1 September 2008 onwards may have excluded the Lane Cove Tunnel site from the definition of a mine – although it was not necessary to determine that issue. 56 The defendants drew attention to ss 3 and 6 of the Mine Health and Safety Act. Section 6 was set out earlier in this judgment but we repeat it here for convenience (together with the definition of mineral in s 3): 3 Definitions … mineral means any substance that is for the time being a mineral within the meaning of the Mining Act 1992 or the Offshore Minerals Act 1999, but does not include coal. … 6 Application of Act (1) This Act applies to the following places of work (which are called mines in this Act): (a) any place where the extraction of material from land for the purpose of recovering minerals or quarry product is carried out, (b) any place where the treatment of any such extracted material, or the treatment of minerals or quarry product, is carried out, if that place is at or near the place from which the material, minerals or quarry product were extracted, … (2) Any building, structure, pit, shaft, drive, level, incline, decline, excavation or work that is: (a) at a place referred to in subsection (1) (a)–(h), and (b) in the course of construction, and (c) intended to be part of a mine, is taken to be part of the mine constituted by that place. (3) This Act also applies to the following places, whether or not they are places of work: (a) an abandoned mine (other than an abandoned mine used for the storage, treatment or disposal of waste that is not connected with an activity or operation referred to in subsection (1) (a)–(h)), (b) any place described in subsection (1) (a)–(k) during any time when activities or operations at that place are suspended, (c) any place on which drilling operations (within the meaning of section 68) are carried out, (d) any land (that is not otherwise a mine within the meaning of subsection (1)) on which activities or uses take place that are the subject of, or required to be the subject of, a permit under Division 3 of Part 6. (4) For the purposes of this section, the extraction of material from land for the purpose of recovering minerals or quarry product includes: (a) any activity that is ancillary to, or connected with, extracting material for such a purpose, and (b) such other activities as may be prescribed by the regulations, but does not include any activity or class of activity that is excluded from the operation of this subsection by the regulations. (5) For the purposes of this section (but subject to the regulations), a place (the relevant place ) is taken to be near a place if: (a) the relevant place is operating on an ongoing basis, and (b) the relevant place (or any part of it) is within 10 kilometres of the nearest boundary of the place. … 57 As a consequence of the amendments to the NSW OHS Act by the Mine Health and Safety Act, the notion of "purpose" in the definition of mine, which existed in the pre-1998 version of the Mines Inspection Act, re-appeared in the Mine Health and Safety Act and hence the NSW OHS Act (it may be noted that the Mine Health and Safety Bill was assented on 28 September 2004, but the relevant amendment to the NSW OHS Act did not commence until 1 September 2008). Moreover, the Mine Health and Safety Act in s 11 made it clear that the Act did not apply to civil engineering works associated with the extraction or treatment of quarry product: 11 Act does not apply to civil engineering works (1) Subject to the regulations and any notice given by the Minister under section 7 (1) (b), this Act does not apply to: (a) any place where the extraction or treatment of quarry product is carried out, where those activities are an integral part of any civil engineering work, or (b) any place where underground work involving the extraction or treatment of quarry product is carried out, where that work is an integral part of any civil engineering work. (2) In this section, civil engineering work means the construction, structural alteration, repair, maintenance and demolition of, for example, airports, docks, harbours, inland waterways, dams, river and avalanche and sea defence works, roads and highways, railways, bridges and tunnels, viaducts and works related to the provision of services such as communications, drainage, sewerage, water and energy supplies. 58 Once again, notwithstanding the clarification in s 11, the second reading speech (Hansard, Legislative Assembly, 7 May 2004) made no mention of what would arguably have been a complete reversal of Parliament's asserted intention under the Mines Inspection Act to extend the definition of mine to cover such industries as civil engineering if the defendants' contentions are to be accepted. 59 In the Minister's second reading speech it was stated: The subjects of this legislation are metalliferous and other mines, and extractive industry quarries, which form a significant part of our State's economy and support our way of life. This sector of the mining industry is distinct from coalmines, which are covered by separate legislation. About 5,000 miners work to make this sector of the mining industry a success. History has shown that the employees in this industry have suffered from an unacceptably high rate of fatalities and injuries. They need legislation that protects them from the unique and potentially catastrophic risks of mining. That is the basic purpose of the bill. The bill is a refinement of the Mine Health and Safety Bill 2002, which was introduced in December 2002 but which lapsed when Parliament was dissolved prior to the last election. There was extensive consultation with mining industry parties leading up to the introduction of the 2002 bill. The intervening period has provided an extended opportunity for consultation. The bill has been amended and strengthened in the light of comments received. I wish to place on record the Government's appreciation of the contribution of industry parties to the consultation process. I can assure each and every one of those parties that their comments have all been taken into account in the process of preparing this legislation. I would like to acknowledge the contributions made to the bill by these organisations, in alphabetical order: the Australian Mines and Metals Association; the Australian Workers Union; the Construction, Forestry, Mining and Energy Union Mining, Energy Division; the then Crushed Stone and Sandstone Association, now known as the Cement, Concrete and Aggregates Association; the Lightning Ridge Miners Association, and the Minerals Council of New South Wales. … The extent of mining operations involved ranges from large mines employing hundreds down to one- or two-person undertakings in places such as Lightning Ridge. The operations are spread throughout the State and include many that are worked only intermittently. This wide variety of mining workplaces represents a regulatory challenge that is capably addressed by the bill. Later I will indicate how this will be achieved. The Mine Health and Safety Bill will repeal and replace the Mines Inspection Act 1901. It will complete the modernisation and clarification of the mining legislation concerning occupational health and safety. I turn now to describe the overall framework that the bill will put in place for health and safety in mines. The Occupational Health and Safety Act is umbrella occupational health and safety legislation in New South Wales applying to all workplaces. This is a longstanding arrangement, beginning with the first Occupational Health and Safety Act in 1983. The arrangement is reinforced by the Occupational Health and Safety Act 2000. The Mines Inspection Act has been the means of specific health and safety regulation in the metalliferous mining and quarrying industry. The current arrangement is that the Mines Inspection Act is associated legislation of the Occupational Health and Safety Act. This bill does not continue the associated legislation model; rather, the new Act should be read in conjunction with the Occupational Health and Safety Act 2000. The relationship between the Occupational Health and Safety Act and the mining-specific legislation will be similar to the current arrangement in that the Occupational Health and Safety Act will continue to prevail in the case of any inconsistency. This arrangement makes it clear that employers have fundamental duties towards employees and that the employees, in turn, have fundamental rights relating to their health, safety and welfare in employment. … The current Mines Inspection General Rule 2000 took a similar approach in introducing systematic safety management. Some of its key provisions are now being given more prominence by being moved into the Mine Health and Safety Act. Consequently, the bill is not introducing essentially new measures in this area but, rather, is consolidating those that are currently in place. It nevertheless will be necessary for mines and quarries to make some adjustments to how they do things. This is not expected to be onerous. Flexible regulation-making powers have been included in the legislation to support all parts of industry in its time of change. The Department of Mineral Resources will play an important role in working with industry to achieve the transition from the old to the new legislation. Places covered by the present Mines Inspection Act are defined by a combination of mining activity and proximity to that activity. While it is necessary to continue using the activity and proximity criteria to define the multitude of small operations covered by the legislation, an alternative improved arrangement will be made for large operations. The Mine Health and Safety Bill will result in amendments to the Mining Act 1992 to allow for the registration of mine holdings. A mine holding will define the boundaries of large operations and, consequently, the area of application of the Mine Health and Safety Act. The Minister administering the Mine Health and Safety Act will be given increased ability to define places to which the Act applies. Savings provisions also have been introduced so that if a government officer commences an investigation in good faith and subsequently it is discovered or determined that the relevant place was not within that officer's jurisdiction, the matter will be able to be handed over to the correct agency. This will provide legislative support to the working relationship between officers of the Department of Federal Resources and the WorkCover Authority. Notices and evidence will be preserved in the handover. … A key aspect of any safe system of work is the presence of suitably competent people in key positions. The Mines Inspection Act makes provision for the granting of a number of certificates of competence through boards of examiners. The Mine Health and Safety Bill will lead to the establishment of a Metalliferous Mines and Extractive Industries Competence Board. The new board will replace the existing board of examiners. The board will have tripartite membership, with government, employer and employee organisations being represented. The membership of the board will be supplemented by expertise in the area of the development and assessment of competence within a vocational education and training context as required. The board will have responsibility for reviewing and developing competence standards and assessment processes. It will be responsible for administering assessment and certification processes. The board will also have the capacity to recognise and implement national standards for competence in the mining industry. … The schedules to the bill contain consequential and necessary amendments to other Acts. They are generally to improve underlying administrative frameworks and the relationship between the statutes. Schedule 1 contains amendments to the Mining Act 1992. These amendments insert provisions to create the mine holdings referred to earlier. They also make amendments to the colliery holding provisions, as a means of improving the relationship between the Coal Mine Health and Safety Act and the Mining Act. Schedule 2 contains amendments to the Occupational Health and Safety Act 2000. Item [3] of schedule 2 inserts a definition of "mining workplace", which is used to define the mining jurisdiction for the purposes of the Occupational Health and Safety Act. This provision also makes it clear that places covered by the Petroleum (Onshore) Act 1991 and the Petroleum (Submerged Lands) Act 1982 are within that jurisdiction. Proposed section 47A of the Occupational Health and Safety Act will result in a person being appointed as a government official under the Mine Health and Safety Act being deemed to be appointed as an inspector under the Occupational Health and Safety Act. This is the means by which government officials will derive most of their powers. Schedule 3 makes sensible amendments to the Coal Mine Health and Safety Act 2002, and schedule 4 makes consequential amendments to other legislation. 60 It may be seen from the second reading speech that there appeared to be no consultation with industry representatives other than in the industry of mining; that the subjects of the legislation were metalliferous and other mines, and extractive industry quarries; that the purpose of the bill was to enact legislation that protected miners from "the unique and potentially catastrophic risks of mining"; the new legislation would make it "necessary for mines and quarries to make some adjustments to how they do things. This is not expected to be onerous"; "The schedules to the bill contain consequential and necessary amendments to other Acts. They are generally to improve underlying administrative frameworks and the relationship between the statutes" (our emphasis). None of this is indicative of an intention on the part of the legislature to do other than put in place special provisions to secure the health and safety of miners in metalliferous and other mines, and extractive industry quarries. It does not indicate that the Mines Inspection Act defined a mine in the expansive way contended for by the defendants. 61 The fact that the legislature considered it necessary to make it clear in s 11 that the Mine Health and Safety Act did not apply to "any place where underground work involving the extraction or treatment of quarry product is carried out, where that work is an integral part of any civil engineering work", but not necessary to provide that civil engineering work generally was excluded from the purview of the Act, suggests that it was not the intention under the former Mines Inspection Act that it would apply in the broad literal way contended for by the defendants. 62 It is perhaps arguable, in light of the provisions of s 11 of the Mine Health and Safety Act, that it may be implied the former Mines Inspection Act applied, inter alia, to "any place where underground work involving the extraction or treatment of quarry product is carried out, where that work is an integral part of any civil engineering work". However, the defendants contended that under s 4A(1)(b) of the Mines Inspection Act, if the activity of extraction of minerals occurred at a site, the site was a mine. The defendants did not attempt to submit that, because the extraction of sandstone was an integral part of the civil engineering work involved in constructing the underground roadway, the site of the Lane Cove Tunnel was, therefore, a mine. Such a submission would not, in any event, have been open. Given the terms of s 4A(1)(b), either the activity of extraction of minerals marked the place as a mine or it did not. There was no scope to qualify the activity as being an integral part of civil engineering works. 63 We reject the defendants' contentions that the enactment of the Mine Health and Safety Act indicated a previous legislative regime that defined a mine in such wide terms that any site where the activity of extracting minerals occurred, regardless of the purpose of the extraction, was a mine. Finding 64 The Full Bench finds that the site of the incident in each of the charges was not a "mine" at the relevant time within the meaning of the Occupational Health and Safety Act 2000. Directions 65 These matters are listed for directions at 9.30 am on Friday 13 March 2009 for the purpose of hearing the parties as to whether the Full Bench should proceed to deal with the constitutional issue. _________________ 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.