Industrial Relations Commission New South Wales Medium Neutral Citation: Yancoal Mining Services Pty Ltd v The Secretary NSW Department of Planning and Environment in the capacity as the NSW resources Regulator [2018] NSWIRComm 1044 Hearing dates: 12, 15, 21 and 29 June 2018 Date of orders: 18 July 2018 Decision date: 18 July 2018 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC Decision: Application dismissed Catchwords: WORK HEALTH AND SAFETY – external review – jurisdiction - whether decision made by regulator Legislation Cited: Work Health and Safety Act 2011 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health (1995) 56 FCR 50 WorldAudio Ltd v Australian Communications and Media Authority (2006) 149 FCR 462 Category: Procedural and other rulings Parties: Yancoal Mining Services Pty Ltd (Applicant) The Secretary NSW Department of Planning and Environment in the capacity as the NSW resources Regulator (Respondent) Representation: Counsel: I Neil SC with S Callan (Applicant) K M Richardson SC with S Palaniappan (Respondent) Solicitors: Seyfarth Shaw Australia (Applicant) McCullough Robertson (Respondent File Number(s): 2018/00172342 Judgment 1. The Commission has before it a preliminary question as to its jurisdiction to hear an application filed 1 June 2018, by which the applicant sought, pursuant to s 229 of the Work Health and Safety Act 2011 (NSW) ("the WHS Act"), an external review in respect of decisions it maintained the respondent had made: 1. to issue Prohibition Notice 108 ("PN 108"); 2. to issue Prohibition Notice 113 ("PN 113"); and 3. not to cancel or vary, pursuant to s 207 of the WHS Act, PN 108 and PN 113 (together "the prohibition notices"). 1. The respondent contended that the Commission lacked jurisdiction to hear the application because the respondent had not made any of those decisions. The respondent submitted that the prohibition notices had, contrary to prayers 1, 2, 4 and 5 of the application been issued by inspectors, not the respondent and the respondent had not yet made a decision in respect of the application to it under s 207 of the WHS Act as contended in prayer 3 of the application. 2. Following the taking of evidence, including from Chief Inspector Garvin Burns who issued PN 108, the applicant formally abandoned prayers 1, 2, 4 and 5. The jurisdiction to review then, depended upon prayer 3 of the application which is in the following terms: On the Undertaking set out below: 3. An order that the decision made by the Regulator on or about one June 2018 under s 207 of the Work Health and Safety Act 2011 (NSW) (WHS Act) declining to cancel: 1. Prohibition Notice 108; and 2. Prohibition Notice 113, (together 'relevant Prohibition Notices') be varied, to the effect that the relevant Prohibition Notices are cancelled. It is unnecessary to set out the detail of the undertaking. The legislation 1. The Commission's jurisdiction to conduct the review is found in s 229 of the WHS Act. The section provides: 229 Application for external review (1) An eligible person may apply to the Industrial Relations Commission for review (an external review) of: (a) a reviewable decision made by the regulator, or (b) a decision made, or taken to have been made, on an internal review. (2) The application must be made: (a) if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant's notice, or (b) in the case of any other decision, within 14 days after the day on which the decision first came to the applicant's notice, or (c) if the regulator is required by the Industrial Relations Commission to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided. (3) The Industrial Relations Commission may stay the operation of a decision that is the subject of an external review pending a decision on the review. (4) The Industrial Relations Commission may, on an external review, confirm, vary or revoke the decision concerned. 1. Other relevant provisions are: 206 Changes to notice by inspector (1) An inspector may make minor changes to a notice: (a) for clarification, or (b) to correct errors or references, or (c) to reflect changes of address or other circumstances. (2) An inspector may also, in accordance with section 194, extend the compliance period for an improvement notice. 207 Regulator may vary or cancel notice Except as provided in section 206, a notice issued by an inspector may only be varied or cancelled by the regulator. 224 Application for internal review (1) An eligible person in relation to a reviewable decision, other than a decision made by the regulator or a delegate of the regulator, may apply to the regulator for review (an internal review) of the decision within: (a) the prescribed time after the day on which the decision first came to the eligible person's notice, or (b) such longer period as the regulator allows. (2) The application must be made in the manner and form required by the regulator. (3) For the purposes of this section, the prescribed time is: (a) in the case of a decision to issue an improvement notice the period specified in the notice for compliance with the notice or 14 days, whichever is the lesser, and (b) in any other case, 14 days. 226 Decision of internal reviewer (1) The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the application for internal review is received. (2) The decision may be: (a) to confirm or vary the reviewable decision, or (b) to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate. (3) If the internal reviewer seeks further information from the applicant, the 14-day period ceases to run until the applicant provides the information to the internal reviewer. (4) The applicant must provide the further information within the time (being not less than 7 days) specified by the internal reviewer in the request for information. (5) If the applicant does not provide the further information within the required time, the decision is taken to have been confirmed by the internal reviewer at the end of that time. (6) If the reviewable decision is not varied or set aside within the 14-day period, the decision is taken to have been confirmed by the internal reviewer. (Emphasis added) 1. It will be apparent from the above extracts from the WHS Act that there is a distinction between a request that the regulator exercise the power under s 207 and an application for an internal review under s 224. The applicant made clear that it did not contend there had been an application for an internal review. 2. An application for an internal review must be determined, or is, in accordance with s 226 (6), taken to be determined, within the period prescribed in s 226 (1), subject to any extension allowed by s 226 (3). 3. A request under s 207 is not subject to any specified time limit. 4. At the outset of the debate on this preliminary question, I raised with the applicant the alternative of making an application for an internal review, pointing out that such review would be determined, or taken to be determined, by the time the jurisdictional question was heard and determined. The applicant acknowledged the availability of that option, which would obviate any jurisdictional debate, but was determined to press ahead. Submissions 1. The applicant submitted that there was an explicit refusal to cancel the prohibition notices. It disavowed any reliance on a constructive failure to decide by reason of the passage of time. It submitted that the effect of the regulator's conduct, after the requests for cancellation were made, was to refuse to cancel the notices or, alternatively to refuse to make a decision to cancel the prohibition notices. 2. The conduct to which the applicant pointed was: 1. a request by the applicant on 16 May 2018 to cancel PN 108; 2. a request by the applicant on 24 May 2018 to cancel PN 113; 3. a letter dated 23 May 2018 (that is, before the request relating to PN 113) from Ms Lee Shearer, Deputy Secretary Resources Regulator, in which she; 1. expressed the concern of the Resources Regulator that workers at the mine remained potentially exposed to risk; 2. advised that discussions going forward would be held with duty holders at the mine only; 3. requested that correspondence from the applicant "regarding prohibition notices currently in effect", that is PN 108 and PN 113, be signed off by nominated senior managers and officers of the applicant; 4. indicated that, should the applicant request cancellation of the prohibition notices, then the Resources Regulator would need to be satisfied of a number of specified matters; and 5. the Resources Regulator will take "such reasonable time as necessary" to respond to such a request. 1. an enquiry, by letter dated 30 May 2018, from the applicant as to the legal basis for the request in 3(c) above; 2. a response by letter dated 1 June from Ms Shearer querying the "resistance" to a reasonable request which would give comfort to the regulator "should it be required to make decisions under the legislation". 1. The applicant further submitted that: 1. refusal may be inherent in conduct or action; 2. the letters dated 7 and 8 June 2018 from Ms Shearer to the applicant, in which the regulator denies having made a decision in respect of the cancellation requests and seeks further information, should not be given weight; and 3. notwithstanding its disavowal of reliance on constructive failure, submitted that if the regulator's argument expressed in its letter of 7 June were accepted an applicant would be prevented from pursuing an application for external review no matter how long the regulator took or how convincingly the regulator's conduct evidenced a refusal. Such a result would defeat one of the objects of the WHS Act, "being to ensure appropriate scrutiny and review of actions taken by persons exercising powers under the Act: see section 3 (1) (f)". 1. The respondent submitted that prayer 3 should be struck out on the basis that it sought a review of a decision "declining to cancel" the prohibition notices. The concept of "declining to cancel", it was submitted does not fall within s 223 (1) or (2) which define reviewable decisions. There was no significant debate on this issue, probably because, even if it were correct, it could be overcome by a simple amendment. The applicant expressed a willingness to amend if necessary. I do not find it necessary to decide the point. 2. More substantively the respondent submitted that: 1. it was significant that the applicant was unable to identify the date on which the explicit refusal occurred; 2. there was nothing in the conduct of the regulator in the period 16 May to 1 June 2018 that supports a conclusion that a refusal decision has been made; 3. the circumstances can be distinguished from those in Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health (1995) 56 FCR 50 and WorldAudio Ltd v Australian Communications and Media Authority (2006) 149 FCR 462; and 4. the applicant's argument in relation to the objects of the WHS Act is not to the point given the availability of an internal review and the specific time limits that apply on such review. 1. As to the construction of the 1 June letter the respondent drew particular attention to: 1. the language in the third last paragraph and in particular the sentences: "We would be grateful if you would confirm your company's objection to complying with this request. In the event the company elects not to comply with the request we will assess other options…" (respondent's emphasis) 1. The language and the second last paragraph in particular the sentences: "In closing the Regulator, in considering such a high risk-activity or the amendment of any notices under the Act, is entitled to take into account if duty holders understand the current risks posed." (respondent's emphasis) 1. The language of the final paragraph: "We look forward to hearing from you." 1. In reply the applicant: 1. submitted that the letter of 1 June must be read in the context of the applicant's request on 24 May 2018 to cancel PN 113 and the applicant's letter of 30 May 2018; 2. drew attention to the phrase "should it be required to make decisions under the relevant legislation" in the letter of 1 June and submitted that the language is "entirely prospective" indicating that there was no existing undecided request to cancel the prohibition notices; 3. noted Ms Shearer's letter referred to only two actions on the part of the regulator being: 1. "considering such a high-risk activity"; and 2. to consider "the amendment of any notices". 1. submitted that neither action identified in (3) involved consideration of a request to cancel the notice; 2. submitted it was clear from the letter that the regulator was actively maintaining the position expressed in the letter of 23 May and did not, at 1 June, consider there was before the regulator request the cancellation of the prohibition notices; 3. emphasised that the applicant's case was that Ms Shearer, through her correspondence of 23 May and 1 June evinced a definite act of mind refusing to exercise a substantive power: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337; and 4. observed that the identification of a specific date was not a necessary part of the applicant's case. It submitted there was an objective manifestation, by at least 1 June 2018, that a refusal decision had been made. Consideration 1. The debate comes down to a consideration of correspondence issued by the regulator on 23 May and 1 June 2018. I observe that, although the letters are related to regulatory action they are not legislation or even delegated legislation and construction of them should not be undertaken as if they were. 2. I accept the arguments advanced by the respondent as to the conclusions to be drawn from the correspondence of 23 May and 1 June 2018. 3. I would add that the letter of 23 May, properly understood, sought information from the applicant relevant to a cancellation request. A key element of that information is confirmation that key duty holders of the applicant are fully aware of the circumstances at the mine and the steps taken to eliminate or mitigate the identified risks and are themselves satisfied that the prohibition notices are unnecessary. Further, to support that level of reassurance, the regulator sought confirmation that a rigorous engineering-based evaluation informed the development of such opinions. Seeking such information is consistent with ongoing consideration. I do not consider it indicative of a refusal decision. 4. I note that the letter of 23 May precedes the cancellation request of 24 May in relation to PN 113 and cannot therefore be taken, by itself, to be a refusal of that request. I accept however that the letter of 1 June reiterates the regulator's view as to the involvement of senior officers of the company and the impact that may have on the regulator's decisions. That is, however, consistent with an ongoing consideration of the cancellation requests. Like the other information sought by the regulator, it is intended go into the mix of factors enabling the regulator to make a decision. 5. It is clear there is, in the correspondence, no express refusal to cancel the prohibition notices or to refuse, or decline, to make a decision about cancellation. Rather there is language evidencing the seriousness of the circumstances at the mine, a continuing concern for the safety of workers at the mine, an ongoing assessment of the situation and a request for more information from the applicant. These factors point to active consideration of the applicant's requests for cancellation of the prohibition notices. They do not suggest that a decision or decisions have been made. The context referred to by the applicant does not cause me to change my view as to the proper construction of the correspondence. 6. The argument that the reference to amendment but not cancellation in the letter of 1 June points to a refusal decision having been made must be rejected. The language is consistent with continuing consideration. The legislation in s 207 refers to "vary or cancel". It is elevating the drafting of correspondence to the level of legislation to suggest that reference to one but not the other points to the inevitable conclusion that cancellation has been excluded. It does not. 7. I conclude, by reference to the correspondence of 23 May and 1 June, that the Resources Regulator has not made a decision to refuse to cancel the prohibition notices or to refuse to make a decision about the cancellation of those notices. 8. I simply observe that view is confirmed by the correspondence of 7 and 8 June 2018. Order 1. I therefore order that the application be dismissed. ********** 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. Decision last updated: 18 July 2018