C2004/5633, Transcript of Proceedings [2004] AIRCTrans 4361 (12 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 3520

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

C2004/5633
C2004/5635

OCCUPATIONAL HEALTH AND SAFETY
(COMMONWEALTH EMPLOYMENT) ACT 1991

Appeal under Section 48 of the Act
by Telstra Corporation Limited to issue
Improvement Notice Nos. 27121N1

Appeal under Section 48 of the Act
by Telstra Corporation Limited to issue
Improvement Notice Nos. 27121N2

BRISBANE

10.13 AM, WEDNESDAY, 3 NOVEMBER 2004

Continued from 17.9.04

PN257

THE COMMISSIONER: Any change in appearances?

PN258

MR G.M. WATSON: Yes, there is. MR HERBERT now appears with me, Commissioner.

PN259

THE COMMISSIONER: Thank you, Mr Watson. All right. I have received the documentation. I must say I think Mr Smith alluded us to another file that we received through the Registry only yesterday, so my apologies for being somewhat late this morning. But all of those materials have been read and I know that we have received some facsimiles in relation to the proceedings today. Mr Watson or Mr Lindeman, did you wish to make any comment in terms of the proceedings in the order of such today?

PN260

MR LINDEMAN: I've received correspondence indicating - or an email indicating that the Commissioner's associate, Clare Hickey, was saying that we - the proposition that was put forward by the respondent or on behalf of the respondent that somehow there should be a two hour limit on any oral argument. We responded to that, Commissioner, and whilst we don't think we will go in excess of two hours - - -

PN261

THE COMMISSIONER: Yes. Well, I think there was agreement that the jurisdictional hearing today will be finished - - -

PN262

MR LINDEMAN: Today.

PN263

THE COMMISSIONER: - - - today. So I'm not sure that in practice that there will be too much more than two hours that can be allotted, giving the timing of proceedings today.

PN264

MR LINDEMAN: Yes.

PN265

THE COMMISSIONER: We have 10 to 2 - 10 to 12 somewhat and then 12 with a break for lunch.

PN266

MR LINDEMAN: Yes.

PN267

THE COMMISSIONER: And then we will have perhaps an hour or so left over, two hours this afternoon. But perhaps if we start and we will see where we end up. Is that what you expect somewhat - - -

PN268

MR LINDEMAN: Yes, I don't anticipate taking longer than that. I've taken the advantage of, in effect, preparing an aide memoir of our reply which encapsulates what was said by the respondent and just opposes to what is said by them - what our individual responses are in an attempt to try to align where the debate is at particular points in the context of these proceedings.

PN269

THE COMMISSIONER: Thank you, Mr Lindeman.

PN270

MR LINDEMAN: I don't know whether you received a copy of that document, Commissioner.

PN271

THE COMMISSIONER: No.

PN272

MR LINDEMAN: If I can just hold it up. There's sort of a table format. It starts at about the third - or the fifth page.

PN273

THE COMMISSIONER: Yes, I do have that document.

PN274

MR LINDEMAN: Yes. I wonder if I could ask you just to ignore that one and if I can - - -

PN275

THE COMMISSIONER: All right.

PN276

MR LINDEMAN: - - - hand up an alternative.

PN277

THE COMMISSIONER: All right.

PN278

MR LINDEMAN: The nature of proceedings is that we - these are moving documents, obviously, that we were working on. And the later document - - -

PN279

THE COMMISSIONER: All right, it's got additional points been put into that one there.

PN280

MR LINDEMAN: No, well, it's not so much additional, it was more getting the lining up right.

PN281

THE COMMISSIONER: All right.

PN282

MR LINDEMAN: We adopted this table form because we've used it in other cases and found it to have been received with gusto, so we thought, "Well, this is a good idea here".

PN283

THE COMMISSIONER: All right.

PN284

MR LINDEMAN: The nature - I don't know whether the Commissioner is computer literate, but these boxes sometimes have minds of their own, as computers generally do. Can I - just before I take you to that document, the advantage of having it in writing means that I can paraphrase quite a bit of what's said in here. And whilst it runs for some 20-odd pages, 25 pages, half of it is what our opponents say, in any event, so it's really half of it. Can I just raise this point which arises from the directions hearing and that was that there was an order, as I understand it, made by yourself, Commissioner, that there be some decision in relation to the potential prosecution proceedings. My instructing solicitor, Graham Dent, from Spark Helmore received a copy of correspondence from Dibbs, Barker Gosling, lawyers, dated 29 October 2004. And I take it that this is a document that's been forwarded to the Commission as well.

PN285

THE COMMISSIONER: That's right.

PN286

MR LINDEMAN: If I may say so, Commissioner, in my respectful submission that document doesn't really answer the point that was raised; the point being is there to be a prosecution. The letter is saying, "Not now but we reserve the right to do so later". I've indicated to the Commission on the last occasion that certainly in the Runchan's case the experience was that the proceedings - or delaying of information, in effect, overtook the notice of held proceedings and rendered those unnecessary. And I think we agreed on the last occasion, Commissioner, that certainly if there is to be a criminal proceeding that is the appropriate forum to go first.

PN287

Now, we're still left in a quandary now as a result of this letter as to whether or not it is proposed to take criminal proceedings in relation to the events which were the subject of the investigation and then the purported notices. In my respectful submission, Commissioner, this is an unsatisfactory state of affairs and it ought to be resolved because it - I mean, clearly we can put the argument as to jurisdiction, but, Commissioner, you accepted the submissions and there was a discussion with my learned friend and it was agreed essentially, as I understand it, that some decision ought to be made before today's proceedings. What we have been informed and what the Commission has sought, in my respectful submission, is not satisfied by this correspondence.

PN288

THE COMMISSIONER: All right. Well, I will ask Mr Watson. I mean, it does say that:

PN289

No such proceedings are pending and Comcare has no present intention to take the necessary steps to commence such a prosecution by understanding a submission that it does go further to allude to potentially.

PN290

Mr Watson, do you have - what do you say in relation to that particular matter?

PN291

MR WATSON: Only that which we've put in the letter. It's not possible - no independent investigator or authority anywhere in Australia could ever bind itself not to exercise an independent duty, so we've done that which we can by sending out the letter.

PN292

THE COMMISSIONER: Mr Watson, I clearly asked you the question in relation to the last proceedings and I take it that you're indicating that there's - those discussions have been had with your client. There are no proceedings pending as you set out in your correspondence and there are no present intentions to take those steps. And at this stage you envisage no overlapping of criminal proceedings in terms of the preparation or the hearing in relation to this matter. Is that correct?

PN293

MR WATSON: Absolutely correct.

PN294

THE COMMISSIONER: All right.

PN295

MR LINDEMAN: Well, that's the end of the matter. They are my learned friends instructions - - -

PN296

THE COMMISSIONER: And I can understand that they are not going to sign off, Mr Lindeman.

PN297

MR LINDEMAN: With the greatest respect to my learned friend this proposition about prosecuting authorities being sought to fetter their discretion is just absolute bunkum. I mean, a simple question was asked as to whether a decision would be made. These offences are the subject of a statute of limitation in any event, so the simple question is, "Is there going to be a prosecution or isn't there?" This notion that - - -

PN298

THE COMMISSIONER: In any event, I think we've dealt with that to the satisfaction this morning.

PN299

MR LINDEMAN: Well, I don't - as I say, we're effectively in the position where we understand no proceedings are pending and it's not within the contemplation, at least, of those instructing my learned friend.

PN300

THE COMMISSIONER: Thank you, Mr Lindeman.

PN301

MR LINDEMAN: I'm reminded by my instructing solicitor, of course, that one of the prejudices potentially to a party in an appeal of this nature is that the proceedings themselves can be misused potentially as a vehicle for, in effect, obtaining information from a defendant which would otherwise not be required to be given under the normal rules of the party not being required to self-incriminate. In any event, they are interesting matters. I won't - - -

PN302

THE COMMISSIONER: Mr Lindeman, in terms of my role I've asked Mr Watson. I've gone further than his correspondence. I think he's gone further in response this morning. I'm not sure what - I understand and acknowledge your point but I'm not sure what more I can do in terms of that particular - - -

PN303

MR LINDEMAN: I'm indebted to the Commission for that course this morning.

PN304

THE COMMISSIONER: Thank you.

PN305

MR LINDEMAN: Commissioner, you will have received as part of the correspondence also - - -

PN306

MR WATSON: May I just raise something in respect of this document handed to you this morning, Commissioner? Despite my learned friend's contention it's entirely different to the one that we were given yesterday. I've wasted some time reading that, but it's entirely different. There might be some overlap but it's a significantly different document. I think that should be made clear. You were told that they were one and the same. Perhaps you too, Commissioner, wasted your time reading the earlier one. I'm not sure that it will have any adverse effect on the conduct of these proceedings but, at least, that point should be admitted by my learned friend.

PN307

MR LINDEMAN: Well, it's not the case at all, Commissioner. There may be some changes, there may be some minor additions, there may be some highlighting, but the submission that has been handed to you, Commissioner, subject to some workings on last night by myself and some instructions - based on some instructions that I have received is, in substance, identical to the earlier document filed. Commissioner, can I - - -

PN308

THE COMMISSIONER: Well, certainly on first glance I understand Mr Watson's submission that there does - certainly from my markings on it I'm not sure whether the layout that you have simply inserts some other materials. But perhaps - Mr Watson, if you require an adjournment in relation to the assessment of the document after Mr Lindeman has given his submissions or, in fact, Mr Lindeman, if in your submissions you're able to highlight a particular matter where you've inserted additional materials, but at this stage not having had the ability to consider the document in any detail I'm not sure how - certainly on the first point there it seems to be simply pretty much as the - similar to the first document. So, Mr Watson, I think we might have to - - -

PN309

MR WATSON: I'm not suggesting it's going to cause a problem, it's just the mere assertion made earlier was inaccurate. But I will tell you if there is a problem. There probably won't be.

PN310

THE COMMISSIONER: Thank you, Mr Watson.

PN311

MR LINDEMAN: My friend is just attempting to score points here. It's just a waste of time. You're quick to accuse Telstra of wasting time yet he's happy to jump up on his feet and come up with these sorts of - - -

PN312

THE COMMISSIONER: Well, I'm not using the point system today, Mr Lindeman, so - - -

PN313

MR LINDEMAN: All right then. Commissioner, you were provided also with a copy of a transcript of proceedings in a matter that was before Commissioner Smith and concerns an appeal by a health and safety representative, Mr Vogt.

PN314

THE COMMISSIONER: Yes.

PN315

MR LINDEMAN: And my learned friend and I were - as you will have seen from the transcript and the various outlines that were filed with it - were, in a sense, on the same side in that proceeding. We say in substance and if time permits we will take you to the paragraph numbers that clearly and absolutely, in our respectful submission, make the point that the position as advanced by my learned friends on behalf of the respondent and, as I understand it, with the concurrence of Comcare - the position being advanced in this case is the exact opposite to that which was advanced to Commissioner Smith in Vogt.

PN316

Now, it's interesting that one of the criticisms that my learned friend makes of Telstra's submissions is that we go to cases in other jurisdictions and the like and what we really should be doing is going to cases in this jurisdiction. And you will see that in our submission we're happy to do that, because a proper analysis of either the Runchan's decision and the Vogt - clearly the Vogt decision show that Comcare as a policing authority is quite happy to come into this jurisdiction and to say one thing in one case and the opposite in another.

PN317

And, in my respectful submission, that alone makes the position that they are advancing before you in this proceeding untenable, certainly untenable without proper explanation. As I indicated, I will - having regard to what the Commissioner said about the time and what have you - I propose to take you first through the document that I've just handed up to you.

PN318

You will see that we start with a proposition which wasn't contained, I accept, as part of the first document in the sense of being an up-front proposition, but it is certainly contained in - was certainly contained in the body of the submission. And the proposition is this; that Comcare in these proceedings are seeking to re-litigate the decision of the Full Bench in Runchans, namely that:

PN319

An investigator's decision to issue a notice under the Occupational Health and Safety Legislation carries with it a presumption of being correct.

PN320

We will take you in detail to that submission in the course of this written reply.

PN321

On this basis the validity of an investigator's decision would be immune from challenge and no matter how efficient the grounds of the issue of a notice it would effectively be cured by the mere act of the recipient of the notice appealing to the Commission.

PN322

It's rather ironic. If a recipient of a notice appeals that act of appeal is being said to result in the curing of any failure of the issuing investigator complying with his enabling legislation to issue the notice. Going then to the text immediately under:

PN323

The basis of Telstra's submission is simple, namely that as a matter of statutory interpretation ...(reads)... hence there is no valid notice for this Commission to confirm or evoke -

PN324

Etcetera:

PN325

It is in this sense that a jurisdictional issue is raised without a valid notice ...(reads)... submissions made today without the necessity of hearing any evidence.

PN326

You will recall, Commissioner, that was a point that we made.

PN327

THE COMMISSIONER: Yes.

PN328

MR LINDEMAN: Commissioner, I should say - just interpolate here that the respondent continually asserts that various matters that we raise are, in effect, going to the evidence. What we're doing is saying, "Look, you don't decide these sorts of things in some sort of - you know, a rarefied atmosphere or bubble". You're entitled to raise various issues that go to validity or go ultimately to the nature of these hearings in order to test their assertion, that is the respondent and Comcare's assertions, that what's being done is effectively - results in a valid notice having been issued.

PN329

THE COMMISSIONER: I agree with you on that, Mr Lindeman, but it's whether I can make a determination on those points and I'm not making a determination - - -

PN330

MR LINDEMAN: No, no.

PN331

THE COMMISSIONER: But without any particular evidence on the merits in relation to the notice and those specific points. And that's what you're going to take me to.

PN332

MR LINDEMAN: We say that you don't need to at all - to go to any of the evidence.

PN333

The key elements of the jurisdictional argument - the key elements of Telstra's position are simple, namely ...(reads)... proposes to issue an improvement notice he or she must conduct an investigation and then form an opinion -

PN334

We say which must be reasonable -

PN335

... that the person is breaching a provision of the Act or Regulations or has breached a provision of the Act or the Regulation and is likely to breach that provision again.

PN336

Now, Telstra's comment on this is that:

PN337

Telstra denies that either it or its CEO is breaching or has breached and are likely to ...(reads)... occurred at Chermside for the purpose of Section 47.

PN338

That term you will see is called up in that provision.

PN339

THE COMMISSIONER: Yes.

PN340

MR LINDEMAN:

PN341

The notice must specify the breach of the provision of the Act or Regulations that ...(reads)... occur and set out the reasons for that opinion.

PN342

Now, we respectfully submit, that means they have got to say why. And you will note, Commissioner, that although it's said that - things are said like, "Oh, a proper reading of the notice really answers all the questions we raise", but the submissions of the respondents still today that are with you still don't tell us what the breach is or the reasons why the opinion is held that there was a breach. We say it's simply - the reason for that is simply that they are unable to do so. Now, just then reading the bottom of the last sentence of 3:

PN343

The notices failed to provide reasons for the investigator's opinion as required by the Act and ...(reads)... and the Commission should decline to hear the matter further.

PN344

In fact, the Commission would lack jurisdiction, in our respectful submission, to hear and determine the appeals on the merits. Now, Comcare's position:

PN345

Comcare seeks through the responses made to Telstra's argument to avoid the issues raised in ...(reads)... which do not require the hearing of any evidence as we say the case is here.

PN346

Then further:

PN347

The respondents enter into an exercise of recasting Telstra's arguments inaccurately then criticising that redefined position.

PN348

We say they are sort of establishing straw castles and then blowing them away.

PN349

The proper examination of what Telstra has actually submitted does not bear out the respondent's analysis.

PN350

Well, we go to that in detail. Further:

PN351

They are supporting their own choice to minimise references to and/or reliance on authority ...(reads)... inconsistent with the High Court authority.

PN352

And that's detailed at the reply. Further:

PN353

They are suggesting that in any event even if Telstra's propositions were valid ...(reads)... Telstra has selected this tabular table format.

PN354

Now, you will see that in relation to the first of the propositions that are raised by the respondents, the left-hand column, there is great effort gone into actually finding particular references, line references, where we've asserted that what we're raising - effectively raising is a threshold issue. And then saying that really one doesn't exist. And we say as to that:

PN355

Telstra does not resile from the proposition that this application raises a threshold question ...(reads)... or that the issues do not go to jurisdiction.

PN356

Now, in relation to the allegation in the left-hand column that we're really guilty of time-wasting we say this, we unequivocally reject that suggestion. If this matter goes to a hearing we say there - I think the parties agree we would be looking at two to three months. Now, if I can just take you to what my learned friend said in the Vogt matter. And that's in the quotation at the bottom of the page, Commissioner. He starts off by saying:

PN357

It's not really, in fact, a question as to whether the Commission has better things to do.

PN358

And he goes on and the final sentence is important. He says:

PN359

There is a general public interest in terminating inappropriate litigation.

PN360

Well, hear, hear, we adopt that submission whole-heartedly.

PN361

MR LINDEMAN: Now - - -

PN362

MR WATSON: Could I just ask something? The matters from Vogt, are they somehow or another, evidence before you? Or is it giving rise to some sort of argument in the nature of an estoppel? We weren't told anything about this until yesterday, and - - -

PN363

THE COMMISSIONER: I think there has been reference made to that particular decision, though. Certainly from the very beginning of these proceedings, I think Mr Watson. And certainly Rutgens and if my memory serves me correctly, there was reference made to all of those three decisions.

PN364

MR WATSON: There was. In fact I think it was listed as one of a very small number of cases of the Commission.

PN365

THE COMMISSIONER: Yes.

PN366

MR WATSON: Under this provision of section 48. This material was just sent to you without any notice to us. We think it is in the nature of evidence.

PN367

THE COMMISSIONER: Yes.

PN368

MR WATSON: And we were waiting to hear on the basis it was tendered. For example, is there some kind of estoppel argument being raised against us, some kind of legal argument that we can't backtrack on it? And we would like to be heard on it about whether or not you can utilise it. May I just say something about it? Although it is asserted to have been a similar case, it was not. The decision taken there by the health and safety representative, Mr Vogt, was taken pursuant to section 29.

PN369

THE COMMISSIONER: Are these submission though that you could make in reply?

PN370

MR WATSON: Not really, because if my learned friend is going to go on about this, we would like to know what it is we are replying to. Is he saying that we are estopped? Or is he saying that somehow or another, whether by law or some other factor, we are prevented from raising the argument? I might say this, Commissioner, I have been doing this for a fair while now, I have never before heard a submission that a party is bound by its submissions and its counsel in another case. Its other case where those submissions weren't accepted.

PN371

In other words, as I understand it even though we say that it was a legally irrelevant point, it being a very different kind of case. Mr Lindeman is telling you that you are bound by what I said to Commissioner Smith in that case, not what Commissioner Smith decided. He didn't accept the submission. In other words, it is something of a waste of time. I have made some submissions yesterday to the New South Wales Court of Appeal which weren't accepted either. But it would be a bit of surprise if they are being applied today as the law.

PN372

THE COMMISSIONER: Well, Mr Watson, I would expect in relation to this matter, as you made reference to to simply pick a transcript extract without some qualification provided to the Commission about the nature and circumstances of that case, and as you say to endeavour to persuade the Commission that simply by representation of a client with a different set of circumstances in relation to that matter should be an issue that the Commission is immediately persuaded and bound by, is not a submission that at this stage I am satisfied with. But I would expect to hear you, and I have heard you, on as I understand your immediate objection.

PN373

But allow Mr Lindeman to run his particular argument. But I note your objection, and I am assuming that you will provide some other reference. I don't think it is such a shock that there would have been further reference made to this particular case though. But I understand your concern with the manner in which it is raised in terms of your representation and the particular extract. But I will allow Mr Lindeman to make his submission.

PN374

MR WATSON: Thank you, Commissioner.

PN375

THE COMMISSIONER: Thank you.

PN376

MR LINDEMAN: I should say this, Commissioner, that one of the responses - and we will come across it in due course - of the respondents in this case was to say in respect of cases from other jurisdictions, "Look, why are we looking at cases from other jurisdictions". And we have got a response to that. But what we should be doing is looking at cases that have been determined in this jurisdiction. We are not raising any question of estoppel. What we are saying is, as I indicated earlier, it is surprising in the extreme that certain things would be said to Commissioner Smith about the operation of this law and the nature of appeals to this Tribunal.

PN377

And it is our submission, Commissioner, that proceedings - appeals from the decision of an investigator to confirm or cancel a provisional and prove those issues by health and safety representative are for all intents and purposes identical to the present proceedings. What we are dealing with is a decision, although it is triggered by a different mechanism - it may not be triggered by a direction to go and investigate what has occurred here, because the investigation occurs because Telstra in the Vogt matter had the right to have the PIN reviewed by an investigator.

PN378

Once the investigator comes to review that PIN, the exercise of that power is for all intents and purposes identical to the power to - as from the result of an investigation, to actually issue an improvement notice. Certainly not the same as the issuing of a prohibition notice, which was the question in Rutgens.

PN379

So what we are doing is we are responding to a challenge that was clearly thrown out to us in the reply of my learned friend. And now he is calling foul. He is involved in this matter, this can hardly be of any surprise to him. We are putting what he said - what we do is we adopt, we put it no higher than we adopt the submissions that were put by Comcare to the Commission, to Commissioner Smith.

PN380

THE COMMISSIONER: Well, there is no debate that that is an issue in relation to the last statement you made reference to that I have to be mindful of, but specifically in relation to the circumstances of this matter. And the issues in relation to that other case can be brought before me, there is no debate with that. But I have to be - determine the matter on the circumstances.

PN381

MR LINDEMAN: Absolutely.

PN382

THE COMMISSIONER: Yes.

PN383

MR LINDEMAN: Absolutely. We don't say that the decision of Commissioner Smith is in any way binding on you, Commissioner, at all.

PN384

THE COMMISSIONER: He may consider differently, Mr Lindeman.

PN385

MR LINDEMAN: I should say this, Commissioner, in case I don't get the opportunity to make the point later. But in my learned friend's outline, he says this:

PN386

In those circumstances, Comcare requested the AIRC take this opportunity...

PN387

This is in the Vogt matter:

PN388

To declare certain guidelines in respect of the appropriate use of the OH and S Act. We submit that these guidelines are uncontroversial.

PN389

So my learned friend was seeking to encourage Commissioner Smith to actually take a test case approach in Vogt, and suggest that they are somehow prejudiced by our reference to Vogt. In the light of the challenge and in the light of Comcare's position in that proceeding, to try to encourage the Commissioner to go beyond the circumstance of the case before him, and to actually promulgate some basic guidelines for the assistance of parties that may come in other proceedings.

PN390

All of that together, in my respectful submission, clearly shows if there is a - there is a different position being adopted today. And of course they can put a different position to the Commission today. But what is the rationale for doing so? And what has changed between when my learned friend was before Commissioner Smith and today?

PN391

Page six at the top, your Honour, you will see there that there is a reference to - the point being made by my learned friends is that Webster v Lampard is authority for the proposition that look, you don't decide cases on these preliminary threshold issues, save in exceptional circumstances. Can I just read an extract from that judgment, and a copy of that case would have been provided to the Commission, in accordance with - in the Commission's directions.

PN392

THE COMMISSIONER: Yes.

PN393

MR LINDEMAN: On page two of 16 of that web copy of the case, at about point five of the case you will see there is a reference to as Dixon J commented in Day v Victorian Railway Commissioner, and then quoting. Do you have that, Commissioner?

PN394

THE COMMISSIONER: I am not sure - do you know which index it is behind? I know it is in here.

PN395

MR LINDEMAN: No, I - it is a case of Webster and Webster v Lampard.

PN396

MR WATSON: We provided, as I understand it, the report from the authorised Commonwealth Law Reports, not some web thing.

PN397

MR LINDEMAN: Well, the copy that we were served - - -

PN398

THE COMMISSIONER: Yes. All I am asking is anyone able to locate it in the folder.

PN399

MR LINDEMAN: Commissioner, I will just read it out to you. It is a fairly uncontroversial point.

PN400

THE COMMISSIONER: I know it is in here.

PN401

MR LINDEMAN: I will read this quotation. And no doubt this is what my learned friend had in mind when he made the point:

PN402

A case must be very clear indeed to justify the summary intervention of a court to prevent a plaintiff submitting his or her case for determination in...(reads)... the proceedings amounts to an abuse of process, or is vexatious. But once it appears...

PN403

And you will need to underline those words:

PN404

...that there is a real question to be determined whether a factor of law, and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous or vexatious and an abuse of process.

PN405

Of course, we are not seeking to do that. But you will note that Dixon J, as he then was, in Day v Victorian Railways Commissioner was inserting a proviso to the rule. Once it appears - we are at the - it doesn't appear in this case stage. We are putting arguments here to say - that fall within the proviso. You haven't got a valid notice before you, therefore really, there is nothing to confirm. Sorry, there is nothing to affirm or cancel. More importantly, there is nothing - there is no substitute decision you could make which is of the kind that is being made in the notices.

PN406

Now, going to the top of page six, Telstra's response is written here:

PN407

Telstra rejects the respondent's characterisation of its submission, which is based on a narrow and misconceived view of what constitutes a jurisdictional...(reads)... an investigator, going to (f), decides under section 47 to issue an improvement notice -

PN408

Is the link to section 48(6):

PN409

Reviewed power, namely, the reviewing authority may affirm or revoke the decision appealed against under subsection 1. This requires a validly executed notice to provide jurisdiction.

PN410

And there is the issue of jurisdictional submissions relating - thereto raised by Telstra, require evidence or the consideration of the merits. They are capable of being resolved, as we say on the face of the notices. And then going to the next paragraph:

PN411

This characterisation of Telstra's invoking of the Commission's jurisdiction is rejected -

PN412

And that is - a proposition is made that in fact the moment Telstra asks the Commission to inquire into or decide upon whether or not the improvement notices are invalid, this is invoking the proper jurisdiction of the Commission. If there is no jurisdiction, the AIRC could not rule on whether or not the notices are valid. What we say is, and continually say, and we emphasise, is that this Commission has all the jurisdiction to determine whether it has jurisdiction to hear a matter. And that is absolutely trite.

PN413

And we are embarking on the exercise of submitting to the jurisdiction - rather, submitting to the jurisdiction insofar as the arguments that we raise point to the fact of the invalidity of the notices, and therefore the fact that there is then no warrant, need, or ability to embark upon a hearing of the merits.

PN414

And so we say that the characterisation of Telstra's invoking of the Commission's jurisdiction is rejected. That by lodging the appeals, Telstra has - so we say that by lodging the appeals - this is critical, Telstra has gained for its CEO, who is named as a responsible person, the protection provided for in the Act itself, namely an automatic stay on the operation of the decision to issue an improvement notice. That is referenced in section 48(4). This is an extremely important consideration, when a failure by the responsible person to ensure that the notice is complied with, is a serious offence under the Act. That is referenced in section 47(6).

PN415

So what we are saying, Commissioner, is that the legislation itself recognises the ability of somebody who is served with a notice, an improvement notice specifically, being able to in effect put a stop on the effect of that notice. That is, to raise a barrier or a protection against the capacity to be prosecuted on the basis of that notice. And that is what Telstra has done, by way of an entitlement that is contained in the Act itself, and no more.

PN416

THE COMMISSIONER: There is a couple of points, Mr Lindeman, is that you say to me on the faces of it that the CEO does not meet the definition of a responsible person under the legislation?

PN417

MR LINDEMAN: That is correct. Yes, that is what is we say.

PN418

THE COMMISSIONER: On what basis do you say that in terms of the definition that the CEO, that he is not an appropriate officer?

PN419

MR LINDEMAN: Commissioner, we deal with that in answer specifically to - - -

PN420

THE COMMISSIONER: Yes.

PN421

MR LINDEMAN: You recall, Commissioner, that the respondent in their - - -

PN422

THE COMMISSIONER: I simply wanted to debate - - -

PN423

MR LINDEMAN: They said, "Oh, look don't worry. You know, the CEO is synonymous with the company, is synonymous. Merely it is just a form of address". But the important thing here is - to focus on is it is only the responsible person who is liable. And for the person to be a responsible person, as we come to, they have to actually be the party that is as the term suggests, responsible for the activity which is alleged to give rise to the risk. Now, there is no suggestion that the CEO has an office at Chermside. And that is the beginning and the end of it.

PN424

I mean, the CEO is the CEO, doing the work of a CEO. He is not running Chermside, and that is the point. The - it would be open, you will see we say, to - it would have been open to the investigator here to have either issued a notice to the person in charge of the call centre as the responsible person. Or they could have nominated Telstra in its corporate style as the party being responsible.

PN425

You will see also there is the difficulty that fitting this notion of, you know, responsible person with an actual offence that is - I mean, there is a whole - a series of alleged contraventions, which we say are not, you know, sufficiently clear because the alternatives are not chosen and it is not - - -

PN426

THE COMMISSIONER: I mean, this - I agree with you this is a series of issues. The definition - I mean, I think you are - there is the corporate veil issues that you are referring to in relation to the CEO, and the offences under the Act. But there is also the definition in terms of the appropriate person and their experience in relation to these occupational health and safety matters.

PN427

But there is also the difficulty in relation to your submission as to who is - the CEO obviously is the corporate face, and has within his supervision, I would have thought, all of those appropriate people in terms of the delegation of his powers. That is, the person who is in charge of those particulars at the Chermside office.

PN428

MR LINDEMAN: Yes, the responsible person is defined:

PN429

Where, having conducted an investigation, forms the opinion that a person: (a) is ...(reads)... in writing to that person -

PN430

in this section called the Responsible Person. So there has to be, if you like, an actual presence, not a nominal presence, but I think what you are saying, Commissioner, is correct.

PN431

THE COMMISSIONER: That is specifically why I asked the question. Because part of the remedy in relation to this notice is what is on the face of the notice, the remedying of the training programs for this particular site, and throughout, if in fact, the broadening argument is taken up of a range of offices. So that is who, in terms of satisfying the argument, that is what I am asking.

PN432

MR LINDEMAN: Well, it is a chicken and egg argument, isn't it, Commissioner, because what we say fundamentally is that the structure of the legislation only envisages corrective action taken following an investigation. Here, on the face of the documents themselves, the investigation was limited to Chermside, yet the force of the notices are said to apply throughout Australia.

PN433

We say that simply on looking at the document, and looking at the Act, that can't - that just can't occur because ..... investigation. He has to have conducted an investigation as one of the prerequisites, and so we don't get into that extended argument. And hence, the need to understand the meaning of responsible person in the context of the actual empowering provision in section 47, which is in term limited to a notion - and there must be an investigation.

PN434

THE COMMISSIONER: Yes. The details of that investigation are not before me.

PN435

MR LINDEMAN: No. And you don't need them.

PN436

THE COMMISSIONER: That is right. Right.

PN437

MR LINDEMAN: But you can look at what the documents say about it. The document says that there was an investigation at Chermside, and no more, and purports to extend the remedial measures throughout the whole organisation. That is all you need.

PN438

THE COMMISSIONER: All right.

PN439

MR LINDEMAN: Yes. And my learned instructor makes a very important point to me, and that - and I should refer it to you, Commissioner, and - but unlike a lot of the state legislation - certainly the legislation in Victoria, and I understand it would be the same position in all other states - there is an officer liability clause. That is, that an officer which is broadly defined to include a director, and clearly the CEO would fall into that category, can be liable for the same effects as the employer if it can be shown - the formula in Victoria, for example, is that the officers consented, connived, or by his wilful neglect - be implicated in the - - -

PN440

THE COMMISSIONER: I understand the sensitivity in relation to that particular clause, and that is why I specifically asked you in relation to these questions about the appropriate person. But also - anyway, I think I have understood your submission in relation to that.

PN441

MR LINDEMAN: Thank you. We go into some further detail just further into the document.

PN442

THE COMMISSIONER: Yes.

PN443

MR LINDEMAN: So we know this - and I am at the - on page 6, reading from (2), and the fourth paragraph - sorry, yes, the fifth paragraph:

PN444

This characterisation of Telstra's invoking of the Commission's jurisdiction is rejected.

PN445

And I think I have made that point. Go to the next point, then. A limitation in section 48(6), namely the power to only substitute for the decision such decision being a decision of the kind appealed against as it thinks appropriate provides yet another jurisdictional, as well as a practical impediment to any attempt to review the merits.

PN446

And we refer to ..... cited in our provisional submission, but we repeat here, for your assistance. Now, going to point (3), there is an allegation that we go to evidence. We say this in relation to allegation. Telstra is not relying upon evidence on any issues relating to the merits of the appeal. Telstra's assertions is just for various matters, in its submission highlight issues that arise from any reading of the approved notices. For example, in relation to paragraph C(b)(iii) and (iv):

PN447

Telstra has submitted that the notices go beyond the power of the investigator -

PN448

and this is the point that I just made to you, Commissioner, that is to the extent it goes to having an operation throughout Australia -

PN449

if the investigator purports to extend the operation of the notices beyond Chermside Telstra says -

PN450

which we say is not empowered to do -

PN451

then you must specify the scope of that extension with certainty. For example, what is a call centre.

PN452

We know what a call centre is for the purposes of Telstra, because that is - that is just a case of giving the operation at Chermside, the place which is identified by both name and address: (a) if you like, a purpose, but when you try to extend it, you know, you then have to say this: well, in what sort of places - I mean, you know, unless it can be suggested that all so-called call centres are the same throughout Australia - of course we don't know that. The important point is that given the criminal penalties that eventually flow from any failure to comply with improvement notices. It is a matter which we just emphasise again and again.

PN453

The references to correspondence which have been filed in the Commission, and the regulatory material identified in that correspondence are not raised as evidence of matters going to the merits hearing. Rather, they verify Telstra's attempts to establish some understanding with respect to the notices, and that those were rejected by the respondent. This and like observations elsewhere in Telstra's submission shows that the respondent cannot point to any breach.

PN454

What we are saying - we continually tried to get you to tell us all this - is it about. And every attempt by us to do so has been thwarted. The reference to paragraph 7 is in the formal proof that the investigator's powers to validity to undertake an investigation. This is a document that can be examined on its face. It does not require evidence, although its scope and effect may be the ..... and therefore it is not an issue that goes to the merits aspects of the appeal.

PN455

So it is not pressed, the statement in paragraph (b) in relation to the Queensland Code, subject to some observations of a statutory interpretation basis relevant to section 4. A quick reading of paragraphs 14 and 38 of our original submission, which are, you will see, in the left-hand column, criticised, indicated they do not speculate as to the evidence that may be given in future.

PN456

These assertions are indicative - that is, that we are making the point there that is underlined, Commissioner - that, as I have already mentioned, one of the methods used by our opponents to attempt to answer our submissions is to recast them, and to then try to knock down that straw-house. Paragraph 14 does not speculate as to future evidence. It highlights the failure of the notice to ..... directly or specifically, or indirectly by reference to actions required by the notice; that is the remedies to identify that: (a) contravention of the Act, required by section 47, which failure lies at the heart of the applicant's submission, and looks to the consequences of this in terms of the actions, the notice required to be taken on an Australia-wide basis.

PN457

Paragraph 38 does not speculate as to the nature of the future evidence. On the contrary, it simply states that Telstra will resist any attempt in this application to draw upon any material in the investigator's report as a basis to cure defects in the notices. The Commission is entitled to look at matters relevant to jurisdictional issues. For example, evidence of the appointment of the investigator, and the directions - sorry, the direction to investigate in this matter, filed with the Commission via the respondent.

PN458

The Commission has got very broad powers to inform itself under the Workplace Relations Act, in short. A reading of the references relied upon by the respondent in this part of its submission again highlights that the respondent's interpretation of the matters identified does not accord with the facts. Subsequent criticism a rejection of its own interpretation therefore cannot advance the respondent's case.

PN459

Then in relation to the point on the left-hand column:

PN460

Telstra does not resile from the fact that from the time it received the notices it sought clarification by way of particulars.

PN461

Then, going to the following paragraph.

PN462

This is because nothing on the face of those, either directly or indirectly as we have indicated, indicated what the contravention was. Nor will the actions required by the notice rectify any breach of the Act.

PN463

What they - they say, effectively, is "Go and have another search around and see if you can, you know, find ways to improve your conduct." In these circumstances Telstra's requests for particulars are both reasonable to expected. None of these requests - and you should have four particulars after that word, if that is possible - - -

PN464

THE COMMISSIONER: I mean, it does - the notice does specify the breach in relation to 16(1) and 16(2).

PN465

MR LINDEMAN: No, no, that just simply - it simply - - -

PN466

THE COMMISSIONER: I mean, I know the nature of those particular provisions.

PN467

MR LINDEMAN: Yes. What the notices do is to simply say, "Here is conduct; that is a breach." Now, what we say is that that is not - that doesn't amount to the identification of a breach.

PN468

THE COMMISSIONER: In terms of the particularisation.

PN469

MR LINDEMAN: No, no, in terms of a breach. I mean, you don't just - I mean, I think we have - the Commissioner will have noted that in our original submissions we took you to a case which is a New South Wales case, in the criminal court by Grave J, where he, in very eloquent terms, sets out the mere fact that there had been an accident doesn't meant that there has been an offence or a breach of the legislation.

PN470

What happens in this - all they are saying is, you know, incident - breach. Instead of saying, you know, this is the thing that was - that gave rise to an unreasonable risk, therefore it is a breach. And why is it a breach? Because A, B, C, D, or E. None of which is there. And neither do the recommended remedies fix what, of course, we say is not there. Then going back to their submission, Commissioner, none of these requests for particulars is inconsistent with Telstra's submissions. We say we have naturally sought to understand what they're on about. At the directions hearing the respondent expressed concern that delay in these proceedings represented a risk in itself.

PN471

If that was true, then Telstra would address it. However, on any reading of the notice, it is not possible to discern what the breaches of the Act are alleged to be. The absence of particulars is also important insofar as notices, as they stand, do not satisfy the pre-conditions necessary for the issue of valid notice. This failure cannot be corrected, we say, by the provision the particulars at this time. There is no power under the Act for the investigator to amend or vary an improvement notice; certainly not one that has been appealed.

PN472

And the provision of full particulars prior to a hearing cannot advance the respondent's position. Then there's references to paragraphs 52, 105, 107 - you will see those over the page - and we say essentially that those references again are another example of a recasting - I really don't need to take you any further than to actually point you to what Mr Watson said and that is at page 9 where he said:

PN473

Commissioner, may I say just this: there is a lot of smoke and mirrors about this including ...(reads)... matter dealt with on the merits. There's no more I can say.

PN474

We say that the exchange and the position taken by my learned friend on behalf of his clients in the directions hearing was clearly one of saying: "Look, let's just have this hearing." In other words, Commissioner, presume that everything that has been done is correct. We say that when the exchange I've read is considered in conjunction with the respondent's express refusal to provide particulars - and they're contained in the correspondence - it's difficult to reconcile the assertion that's now being advanced, that is, as you will see in the left-hand column:

PN475

As Telstra well knows, when the matter first came before the AIRC the respondent was prepared to answer and deal with the issues relating to particularisation of the claim.

PN476

Far from the point. They had said, if I respond to that, they would only do so if they were directed to do so by the Commission; and certainly nothing in that part of the transcript that we've quoted suggests they ..... in the contrary; rather, it goes the other way. It is submitted any attempt to invoke section 111(1)Q of the Work Place Relations Act to amend a purported improvement notice which does not comply to the requirements of the Act would: (1) amount to issuing rather than correcting except for the improved notice; (2) could not satisfy the requirements of section 40H(6) in relation to the substitution point which I've made; (3) further and by way of augmenting (1) and (2), any amendment would amount to jurisdictional error in the sense identified by the joint judgment of the High Court in Craig v South Australia.

PN477

This statement, we say, really lies at the absolute heart of what's before you, Commissioner. Less obviously, an inferior court, can, while acting wholly within the general area which jurisdiction fall - it's a jurisdictional error by doing something which it lacks authority to do. If, for example, it is essential condition of the existence of the jurisdiction with respect to a particular matter that if a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is of the kind of matter which the court has jurisdiction to entertain.

PN478

Very apposite words. Going on: a suggestion that this Commission or indeed any court cannot look to the interpretation of similar legislation and other Australian jurisdictions or overseas for guidance in the absence of relevant binding authorities is quite, we say, quite amazing. You will recall in our first submission, Commissioner, that we were at pains to point to the factual historical way in which this legislation - the Federal Act and the various states OH&S Act came - has at their source the Rovens Committee Report and we say that section 4 in this Act itself clearly shows Parliament's intention that there be a similar approach taken, certainly, by the Commonwealth in accepting state pieces of legislation.

PN479

It is accepted that when considering the interpretation of expressions of statutes that regard must be had to precedent cases. The meaning determined in that case may be binding - see Mayer and Co in the Forsyth case. It seems clear from the unanimous decision of the High Court in the Bitumen and Oil Refinery case - details as fully set out here - but where comparing light provisions it is acceptable to give that section similar application and meaning as has been used in other jurisdictions. This approach has been followed in several cases including the Camden Park case, which is referred to, where the Court said:

PN480

It is highly desirable that there be conformity with decisions between states where legislative provisions are identical.

PN481

And, as Pearce, on statutory interpretation points out at page 87:

PN482

Any adherence to an interpretation of light legislation from another jurisdiction ...(reads)... be the benefit of uniform decisions on the provision in question.

PN483

So not only is it common practice to make references to judicial attitudes towards - as well as the interpretation of legislation across various jurisdictions. In fact, the Full Bench in Rutchens referred to and quoted with apparent approval passages from Chrysler United Kingdom Limited v McCarthy, the English decision, at the Industrial Reports there; and also the Deary v Nadson Hide Upholstery case. I think, in fact, the Full Bench quoted some of the provisions which we quoted in our submission to you, which has been filed.

PN484

Notwithstanding that both of those cases were each concerned with an improvement notice and not a prohibition notice appeal. There are also important differences in the issues raised by an improvement notice and a prohibition notice, in particular in relation to the necessary pre-conditions to the issue of the notice. An issue that is, of course, critical to the matter before this Commission. You recall, Commissioner, I indicated at the directions hearing - I think I've repeated this in the first submission that we filed - that in a prohibition notice the trigger is not the capacity to indicate or the breach of the legislation or to select from the way in which it is said the breach occurs, as is the case with improvement notice; it's triggered by whether or not there is an immediate threat, or words to the like effect.

PN485

I think I said to you on the last occasion that I wouldn't want to be quoted saying that in every case but one would have thought that it's difficult to envisage a situation where a question of whether or not there is an immediate threat would be anything but a subjective issue and therefore, almost invariably, it would be one that depends on the facts of the case. We say that these cases are quite different for the reasons we have previously given in our submissions because they, in fact, depend on the capacity to identify a breach of the legislation in the way in which we say it ought to be done.

PN486

Telstra has also previously made the point that in Rutchen - Rutchen's is concerned with - clearly though it's a prohibition notice and the pre-requisitions for such a notice are substantially different - the point I've just made, and we would point to the Wormald Security case, principally for the proposition that the method that the Full Bench of Western Australia used in looking to this whole issue of whether there were similarities is to actually look at the relevant provisions, to analyse them and then to identify the differences; and we commend that sort of approach to the Commission in this case.

PN487

You will see then on page 11 we are dealing with them in paragraph (d) the effect of what we understand our learned friends to be saying is: look, once we file the appeal that's - because it's an appeal - is to be by way of re-hearing de novo and because the Full Bench in Rutchen said that includes the calling of new evidence and all that sort of stuff, that if you apply that sort of analysis to this case that, really, any problems would be overcome by the capacity to call evidence. We simply say that that's not - and if you apply the decision in Craig's case, referable to pre-conditions, we don't get to that point. That's the point we open with in our response which has got the (d) along side it. And then going on:

PN488

To adopt Comcare's reason would allow the Commission or an inferior court to claim jurisdiction over a matter no matter how erroneous ...(reads)... Federal Court's discretion and/or attempt to defend a prosecution for an alleged breach of a notice by raising its invalidity.

PN489

Commissioner, you will recall that in relation to that point there is that neat little issue that has been raised by the Deary v Nadson Hide case - and, I think, confirmed in the McCarthy case - that because the offence-creating provision referrable to the failure to comply with a notice does not contain with it the qualification of practicability, the defendant is obliged, because of the existence of the right to appeal, to raise any question of practicability in an appeal hearing rather than as a defence to a prosecution.

PN490

That creates another practical impediment on the failure to lodge an appeal. And, of course, that's one of the underlying reasons no doubt that Comcare would be wanting to say: "We should be just going into this appeal holus-bolus." You can't be coming here and saying in the way that we're advancing our argument: look, we've appealed - but what we say is: but before you get to the merits let's see whether there's a valid notice. They're effectively saying we can't do that.

PN491

THE COMMISSIONER: The issue of practicability is not an issue that's easily ascertained on the papers.

PN492

MR LINDEMAN: No, no. Well, we go into that in some detail.

PN493

THE COMMISSIONER: Because your threshold - yes, I understand that.

PN494

MR LINDEMAN: We simply say this in relation to the notion of practicability. We say that unlike the situation under the Queensland legislation, under the Federal Act, and various other State Acts including Victoria, South Australia and Western Australia, the general duty obligation, section 16, is subject to the qualification of practicability. And what we say in a sense rhetorically, you know, look because of what the Full Court in Victoria in Chugg said that you've got to determine the issues of practicability that state of knowledge about hazard or risks and a way of removing a mitigating hazard or risk, you've got to determine those objectively.

PN495

And we say if you sort of apply that thinking to the notion that here is an offence, you know, part of the reasoning and/or the remedy would be expected to say, well, look, this particular offence has occurred. Why? Because you haven't got A, B, C or D facility which other people have remedied. You know introduce A, B, C, D and you know everybody knows what we're talking about. That's not the case here. So, look, we don't say, "You've got to determine the issue of practicability."

PN496

All we're saying is how does the respondent contend that in relation to a performance breach which is at - that is section 16, a general duty, which is subject to the qualification of practicability which incorporates the notion of you know looking at these things objectively - how does the respondent - how do the respondents intend that what is stated in this notice, and having regard to the remedies which we accept are not mandatory - we don't put those forward as mandatory - but the remedy itself doesn't alter the description of the offence, the reasons why or the remedy you know tell us anything about you know some other facility that - or some other corrective action that could have been raised either notionally, or have been raised, or exist out there in industry to believe any alleged risk and that's all explained.

PN497

In the sense of saying, look, you know rhetorically, how does it happen, you know. And that doesn't require any evidence at all. So I've indicated this is raised by - it's at D, Craig's case - to adopt Comcare's reasoning would allow the Commission or an inferior Court as I say - - -

PN498

MR WATSON: You've already read that.

PN499

MR LINDEMAN: - - - ..... jurisdiction. I mentioned that. To say that the applicant should have gone to the Federal Court - - -

PN500

MR WATSON: You've already read that.

PN501

MR LINDEMAN: I've read that. Thank you. I'm indebted to you, Mr Watson. Rather the applicant must seek the exercise of the Federal Court's discretion. I think I've read that. Telstra is happy to point to the fact that in ..... arguments were advanced on behalf of the respondent investigator supported by Comcare. Commissioner, I might just - I think I refer to this argument a little later in the thing. I'll just ask you just to ignore that little comment there at the moment. I think it fits more aptly in the place where I've placed it later.

PN502

Now, you will see in paragraph 4 what is being set up there in paragraph 5 the reference to Lipaharg v The Queen, there is an attempt by the respondents to characterise what constitutes jurisdiction in an event. What we say is - in a very narrow way and in substance I can just take you straight to what was in fact said in the judgment at paragraph 78. At point 3 of the page in our response:

PN503

The term jurisdiction here as elsewhere gives rise to difficulty. It is a generic term. A point made by Isaacs J in Baxter v The Commissioner for Taxation. It is used in a variety of senses: some relating to geography, some to persons and procedures -

PN504

and we've highlighted those two matters but we say that they're apposite here -

PN505

Others to constitutional and judicial structures and powers thus Federal jurisdiction is the authority or ...(reads)... process identifies the power of a Court to make orders of a particular description.

PN506

Then I've recited part of what was submitted:

PN507

Jurisdiction may be used (1) to describe the admitability of the defendant to the Court's writs etcetera.

PN508

Now, what is important is the word "may" after jurisdiction. So you can see that the quote that our learned friends have relied on itself doesn't purport to be all embracing or an all embracing definition. It just says jurisdiction may be used in the three senses which I've identified and they're subjected to analysis. The important point is that it's just yet another case of either recasting something that has been put elsewhere, and then using it as a basis to artificially narrow, in this case, the scope of what has been accepted law as being a jurisdictional issue.

PN509

We go on to point out of course that the Lipaharg case was concerned with a conspiracy and a charge, and whether it fell within in that case the geographical jurisdiction in terms of where the conspiracy was said to have occurred, and of course unlike this Commission, there is inherent jurisdiction in the South Australian Courts. So I think I can comfortably go to our responses to the admitability to jurisdiction has been previously submitted without objection from the respondent: that the Commission, like any other Court or Tribunal, has all the power to decide whether the matter that was brought before it falls within its jurisdiction or not.

PN510

And we refer to Craig, a quotation from Craig's authority. Telstra is happy to point to the fact that in Rutchen, arguments were advanced on behalf of the respondent investigator and supported by Comcare at pages 241 and 242 that:

PN511

Asserting that no valid appeal existed due, it was said, to the failure to prepare the appeal in a form that did not ...(reads)... to Australian National Rail's submission that there was no presumption as to the correctness of the decision under appeal.

PN512

MR WATSON: If it's any assistance to my learned friend, we don't dispute any of these matters raised on this section.

PN513

MR LINDEMAN: "While the Full Bench did not provide a direct answer - - -

PN514

MR WATSON: We never put it in writing and we don't do it now.

PN515

MR LINDEMAN: We've said - we've agreed that we try and conduct our addresses within the time allotted. I've been interrupted now three times.

PN516

MR WATSON: I'm saving time. We don't dispute the matters in this section.

PN517

MR LINDEMAN: Well - - -

PN518

MR WATSON: Oh, well.

PN519

THE COMMISSIONER: Give that there is no objection in that particular - - -

PN520

MR LINDEMAN: Well, if there's nothing - I don't - if the points we make are conceded, I don't press them.

PN521

THE COMMISSIONER: Well, I think Mr Watson has qualified it by your earlier remarks, Mr Watson, haven't you? In relation to those particular points?

PN522

MR WATSON: Well, these matters - what Rutchen decided - we've never put that in contest. We're not challenging that.

PN523

THE COMMISSIONER: Yes.

PN524

MR LINDEMAN: Just going to the final - I think the point we've made has been made amply, but just - reading from the last paragraph on page 15 then of that section:

PN525

Telstra acknowledged that ...(reads)...jurisdiction to hear this matter on the evidence and make determinations under Section 46 -

PN526

I think that should be "made under Section 48(6) of the Act".

PN527

However, if no valid notices have been issued then the Commission cannot propose to revoke -

PN528

We've made this point again and again. Now, in paragraph 12 on the respondent's ledger side:

PN529

Telstra has repeatedly made submissions that the ...(reads)... raise the need for evidence.

PN530

We say as to those propositions Telstra joins issue with these matters. And we do say that on the basis of what we've previously said both herein and in our previous submissions. We make no comment because it's not required in respect of paragraph 14 - sorry, 13. 14; in relation to the appointment and a valid direction we say this:

PN531

Telstra does not resile from its submissions on the validity of the appointment of the respondent as a potential basis going to invalidity.

PN532

What we say effectively is this; we offer a solution.

PN533

If Senior Counsel undertakes to the Commission that, if necessary, it can establish that the respondent's ...(reads)... being the ability to go beyond Chermside, because we've already made those provisions.

PN534

Then paragraph 15:

PN535

Telstra appears to submit that the improvement notices are invalid because it disputes that ...(reads)... If the claim is already submitted they go to jurisdiction.

PN536

Now, paragraph 16: We're there talking about this business of the call centre.

PN537

Uncertainty about -

PN538

And I'm reading from our response.

PN539

THE COMMISSIONER: Yes.

PN540

MR LINDEMAN: Because I think that what we say shows what we're arguing against.

PN541

Uncertainty about what the respondent means by a call centre and the failure to ...(reads)... then that is one that should be specified.

PN542

Over the page and this is page 7:

PN543

The respondent's position is akin to challenging Telstra to a guessing game ...(reads)... should not be a matter of gamesmanship requiring parties to guess.

PN544

Paragraph 18: I think I can just go to the statement of the respondents again here.

PN545

Telstra joins issue with the respondent's assertion that's contained in paragraph 18 ...(reads)... most of which have objects and purpose provisions.

PN546

And it's worth just having a quick look, Commissioner, at what two of those are in Section 3 of the Commonwealth OH and S Act. Now, specifically (c) and (e). (c) says:

PN547

The objects of this Act are; (c) to ensure that expert advice is available on occupational health and safety matters affecting employees and contractors.

PN548

We understand that to mean that Comcare is, in a sense, the body that's ultimately co-ordinating these things to provide that sort of advance. And (e) - and the other purpose we rely on is:

PN549

To foster a co-operative consultative relationship between employers and employees of the workplace on the health and safety and welfare of such employees at work.

PN550

We say:

PN551

Neither of these objectives can be advanced by unclear and imprecise allegations and wrongdoing which appear incapable of being articulated by the respondent.

PN552

Now, we just make the point that we've never used the word "vibe". We need to say no more than that. Then going to 19 and 20:

PN553

Telstra maintains its position in relation to the matters stated in (f) and (g), paragraphs 1 to 4 ...(reads)... is another case of re-jigging what we say.

PN554

In fact the quote - and we rely on the bold print that was inserted in our original submissions at those paragraphs. It says this:

PN555

On the material before me it would, I think, be quite wrong to refuse to entertain the submissions ...(reads)... efficiency of the improvement notices.

PN556

What they are doing is saying there is a presumption that one of these notices is issued. "It's correct. Let's go straight into the hearing".

PN557

THE COMMISSIONER: The notice does point to the - in terms of particularly what you said on page 17 where you say there's lack of specification of the Act or omission on the part of Telstra - and I know there's a separate debate about Telstra's CEO, but it does - the notice does point to:

PN558

Due to Telstra's national usage of training modules.

PN559

There's a conclusion that there's lack of information, instruction and training in relation to those modules and they are the things that are expected under the notice to be remedied in terms of this particular improvement notice. Where do you say that they don't meet - I know that before you get to that you say that there's particulars that are lacking in terms of constituting the contravention, but where do you say that those things don't meet the requirement in terms of setting out the Act or omission on the part of Telstra?

PN560

MR LINDEMAN: The difficulty, Commissioner, is that having regard to the very extensive key learning module as a module that exists and that are the subject of this criticism, it's not suggested what the Act or omission is that constitutes the breach. Just simply to say that a process is wanting doesn't tell us what alleged breach is.

PN561

THE COMMISSIONER: It does go on to refine that a little more, though, doesn't it.

PN562

The appropriate management of headset safety, acoustic incident severity indicators, reporting systems, incident -

PN563

MR LINDEMAN: Well, it's merely, you know, extending the scope or explaining the module; not telling us what it is that's wanting. And, indeed, if you go to remedial action you will see that that equally doesn't tell us what's wrong with it. What they are saying is, "Review them". Assuming, Commissioner, this is a way to test it, Telstra went and looked at their learning modules again and said, "Well, we've reviewed them. We don't see anything wrong with them". What would the response be - - -

PN564

THE COMMISSIONER: Well, see, your submission is that there's no specification of how to improve them.

PN565

MR LINDEMAN: Well, there's no specification of what precisely is wrong with them and why, the reasons why, which is then supported further by the absence - the ability to identify a specific remedy which it is alleged would improve or cement the position.

PN566

THE COMMISSIONER: I mean that - - -

PN567

MR LINDEMAN: Commissioner, could I - I'm sorry, Commissioner, I cut you off.

PN568

THE COMMISSIONER: That's all right.

PN569

MR LINDEMAN: Could I just make the point that if you take the opportunity to go back to what you said in our original submissions at paragraphs 31 and 32 you will see that we've attempted to set out very carefully what we say is wrong with the - - -

PN570

THE COMMISSIONER: The reason I query that is because the introduction of the ..... legislation is, and correct me if I'm wrong, but as I understand it, that is the nature of - consistent with the ..... legislation, that employers are not spoon fed in terms of their specifications and how to improve.

PN571

MR LINDEMAN: Commissioner, it's been said that the ..... legislation was facilitating the employers requests to self-regulate, if you like. What's critical in relation to this legislation is that when you look at what Fullager J said in Chugg v Pacific Dunlop case in Victoria, that's this, that it's not - when you're looking at breach, you have to find - you have to look to a specific act or omission. It's not - you don't look at the conduct and say, you know - the obligation is a performance based obligation which doesn't tell you what it is that you need to do to achieve safety in the workplace. But when you go to breach, and that's what we're critically concerned with here, what you've got to do is to specify the particular act or omission which is said to give rise to the contravention. And that's the fundamental - I mean, that's the fundamental problem here. In fact that's not what they do. They just don't comply with the requirements of Chugg v Pacific Dunlop, Commissioner. They don't have to necessarily tell us how to fix it because the remedial provisions are not mandatory requirements. They can include those if they wish, but what we need to know is what it is that we need to fix, and that's our problem. You see, in each case it's - the notices say, "Go and find out what's wrong by way of remedy."

PN572

THE COMMISSIONER: I think I took you away. You were at point 19, 20, I think.

PN573

MR LINDEMAN: Yes. Then going to paragraph 21. I've made that point, Commissioner.

PN574

THE COMMISSIONER: Yes, you have.

PN575

MR LINDEMAN: Now, then - - -

PN576

THE COMMISSIONER: 24, 26.

PN577

MR LINDEMAN: I think that's where we then make some further additional submissions:

PN578

Telstra joins issue with the respondent's contentions in paragraph 24 to 26. The improvement notices ...(reads)... namely, it points to the respondent's ignorance and/or unwillingness in a sense to follow their enabling legislation.

PN579

Then over the page, 27:

PN580

Telstra joins issue for the reasons advanced.

PN581

Again, it's to the points raised - that is, this is a reference to other decisions in other States and countries.

PN582

Essentially, in any appeal under the OHS legislation against an improvement notice ...(reads)... both of these matters are fundamental to the underlying requirement of an improvement notice, that is, proof of an offence.

PN583

Then we deal with practicability and the criticisms made of our reference to that provision. I have already partly dealt with those so I'll try and rip through this quickly if I can.

PN584

The requirements that are in the form of who alleges a contravention of general duty must prove ...(reads)... the impugned conduct must be measured against the elements of practicability.

PN585

You will recall our previous submissions, Commissioner. We made the point that the Victorian legislation conveniently sets those out under four headings under the definition and that for all intents and purposes they have been adopted - that is those four headings, as being what reasonable practical steps the qualifications of section 16 in fact mean. So we go on:

PN586

Even though the alleged solution to a problem is not adequate unless it includes a consideration of practicability ...(reads)... of the respondent particularising the precise nature of the alleged contravention.

PN587

When we use the word "particularisation", we're saying by way of the setting out in the notice of what's alleged to be the act of - the acts or omissions giving rise to the risk or an unreasonable risk. And being an inspector under the Queensland Act - we made that point.

PN588

PN589

In raising the matter referred to in the preceding paragraph, Telstra is merely suggesting or highlighting ...(reads)... Telstra does not, as the respondent suggests, seek any ruling -

PN590

and so forth. Then, obligations for the validity of the improvement notices:

PN591

Telstra seeks to advance threshold submissions which it is submitted go to the question of the Commission's power under section 48(6).

PN592

And we say:

PN593

These matters include the following. (a) Insofar as the respondent alleges that the CEO of Telstra ...(reads)... has purported to serve upon the CEO a legal instrument for which the CEO can face personal criminal liability.

PN594

We make that point again and again and again.

PN595

THE COMMISSIONER: How would that be distinct then if what you say is that more appropriately the person in charge or supervising the call centre at Chermside would be the more appropriate person to be served under the reasonable person test?

PN596

MR LINDEMAN: Yes. The - - -

PN597

THE COMMISSIONER: Responsible person.

PN598

MR LINDEMAN: The - what's interesting, I mentioned that in Victoria we've got the officer rule which triggers in the - would trigger the CEO and, as I've indicated, the formula there is that the offence can only be committed if - it's established as having been committed if the prosecution in, for example, an offence could prove that the CEO in this instance, either consented, denied or wilfully failed. There's authority for the proposition that that formula applies the requirement of proof of full mens rea to that sort of situation, so whilst, as we've submitted, there's no similar provision of that kind here, the only offences that are committed by employees under this legislation right up to senior management are the breaches of the employee, which is in section 21 of the Act, and that is predicated on - I'll just read it:

PN599

An employee must at all times while at work take all reasonable practical steps for ensuring that the employer does not take any action or make any omission that creates a risk or increases an existing risk to the health and safety of the employee or of other persons (whether employees or not) at or near the place at which the employee is at work.

PN600

There's a requirement of cooperating and so forth. It's clear that section 24 would provide a justification if one - sorry, section 21, I'm sorry, would provide all the justification necessary to site a responsible person because the proposition would be that an act or omission giving rise to risk which occurs at a centre which is being operated by - or, rather, which is being supervised by, perhaps, the responsible person in a particular instant, then there's the argument that that person would be liable in any event under section 21. We deal in detail with that matter at paragraphs 29 and 30 of the submissions.

PN601

THE COMMISSIONER: Yes.

PN602

MR LINDEMAN: We say, then after that bolded section and the reminder that criminal liability is potentially triggered, in clear uncomplicated language, Section 47(1) authorises the issuing of an improvement notice to "that person" who in the opinion of the investigator "is contravening or has contravened", etcetera. Telstra clearly has a separate corporate legal existence as a person. It is the responsible person only who, by operation of Section 47(6) is potentially rendered liable for non-compliance with an improvement notice and not, as suggested, that person's employer, whether he is recognised as a proper officer or not.

PN603

And we point out that the notion of proper officer has no existence under the Occupational Health and Safety Commonwealth Employment Act. Telstra has its own legal status as that person for the purposes of Section 47(1), we say, by virtue of Section 22 of the Interpretations of Legislations Act which, of course, is the section cited also by the respondents. As to Telstra's appeal, despite the naming of the CEO as the responsible person, there can be no doubt that Telstra is an employer affected by the decision as required by the appeal provision in Section 48(1)(g) in respect of an improvement notice which purport - rather, improvement notices which purport, on their face, to arise from where an investigator, in conducting an investigation, or having conducted an investigation, decides under Section 47 to issue an improvement notice.

PN604

Now, the source of those quotes is stated at paragraph 32. We say that there has been a failure to respond on the face of the notices to comply with the mandatory requirements of Section 47(3)(a) and, in respect of which, the respondent's explanation at paragraph 32 asserts:

PN605

Any fair reading of the notice discloses a proper basis for the opinion.

PN606

This response neither qualifies as a reason for that opinion or advise any other - provides any answer at all. Telstra's position is, and always has been, that insofar as the respondent, in forming his opinion that the CEO of Telstra contravened and, rather than electing as required by the disjunctive "or", has contravened, etcetera, the Act, failed on the face of such notice to comply with the mandatory requirements of the Act.

PN607

Then the improvement notices are invalid and, to put it another way, do not qualify as valid - a valid exercise of the power to form an opinion required by Section 47. As to the comment on paragraph 33, the respondent's submission again is submissions as to the failure on the face of the notice, as we describe it, a known remedy for any alleged impugned conduct and, instead, obliging Telstra to undertake risk assessments, etcetera, demonstrates the fact that the respondent could not have formed an opinion of the existence of an offence. And we take you to the Full Court's decisions which we accept is essentially about where the proof of - not essentially, it is about where the proof of practicability under the Victorian legislation lies, and that's been, in my direct experience, been applied to breaches of Section 16 of the Commonwealth O H and S Act. This observation was made by the joint judgments of Dawson, Toohey and Gaudron at 260:

PN608

PN609

In some cases mere identification of the cause of a perceptible risk may, as a matter of commonsense, ...(reads)... some method which would remove or mitigate a perceptible risk or hazard.

PN610

Telstra's observations on the nature of remedial measures raised by the respondent in his improvement notice leads, we submit, to the opposite conclusion and inferences discussed above, namely, the failure by the respondent to identify, in his remedial measures, some method which would remove or mitigate a perceptible risk or hazard and leads to the inference that there was no failure to provide, so far as is practicable, a safe workplace.

PN611

Then we go to the conclusions, and at 37 we say Telstra rejects the characterisation of what it seeks, contained in the paragraph 37 of the respondent's submission and repeats what is contained in its submission, namely, it is submitted that insofar as Telstra purported improvement notices are suspect for the various reasons arise and, in particular, because they each allege breaches by the CEO, as distinct from the employer as envisioned by Section 16 of the Act, the Commission should decline to either amend such notice and/or deal with the merits on the basis that it lacks jurisdiction to do so.

PN612

We then, under the heading which is on page 24, which should more conveniently be at the top of page 25, we make this observation in relation to the referral point which was discussed or raised by the respondent in 4(d). We discussed in part, and make this point: the respondent in paragraph 4(d) submits that Telstra must know that, if there was to be a challenge to the validity of the improvement notice, this had to occur in another place, probably the Court. Telstra notes that there is no authority cited for this proposition. It is without foundation.

PN613

Comcare tried to convince the Full Bench in Ruchton's case to follow this course but was unsuccessful and here it goes, again. The Commission is just as entitled as any other court to determine whether proceeding on matter which is the subject matter of statutory prerequisite is properly before the Commission. True it is that, pursuant to Section 46 of the Workplace Relations Act, the Commission can refer a question to the Federal Court. If the Commission was minded to seek the Court's assistance, Telstra would not resist such a course being adopted in this case. And we'd be happy to provide you with assistance in that regard, if you were minded to consider that option.

PN614

I note the time, Commissioner. It's about 3 past - - -

PN615

THE COMMISSIONER: You've run pretty close, though, Mr Lindeman.

PN616

MR LINDEMAN: Pardon?

PN617

THE COMMISSIONER: You've run pretty close to your time.

PN618

MR LINDEMAN: I am, but what I was hoping to do was to simply take you, by way of the numbers of the - the paragraph numbers in the Vogt matter to submissions which we would, in a sense, adopt. Now, I'm happy just to give you a list of those, in due course. I can read them out. Simply I can make some observations on them, if it would be convenient. It would only take a matter of about five minutes, if that would be convenient for lunch. The point is being made that some of my time has been taken - - -

PN619

THE COMMISSIONER: Well, if it's only going to take five minutes, so that Mr Watson can respond in full, we might do that now.

PN620

MR LINDEMAN: If the Commissioner pleases. Commissioner, I should read Section 29 very quickly. Section 29 provides this:

PN621

Where a health and safety representative for a designated - - -

PN622

THE COMMISSIONER: Just so that I understand what you're doing, you're taking me to the particular clauses - - -

PN623

MR LINDEMAN: I just want to take you to paragraph numbers - - -

PN624

THE COMMISSIONER: Right.

PN625

MR LINDEMAN: - - - in the Vogt decision.

PN626

THE COMMISSIONER: In the decision?

PN627

MR LINDEMAN: Yes. Now, I can read those into the transcript, or I can simply - - -

PN628

THE COMMISSIONER: I don't think there's any necessity to read those in - to read the actual - because we all have that particular decision.

PN629

MR LINDEMAN: Yes.

PN630

THE COMMISSIONER: If you just want - what's the overriding submission that you're making here in relation to - - -

PN631

MR LINDEMAN: The overriding submission is simply this, that what appears in - or what was put on behalf of Telstra in the Vogt matter by way of the - sorry, what was put on behalf of the respondent and Comcare in the Vogt matter is the opposite to that which - that's Commissioner Smith - relation to the way in which the Commission should deal with an appeal from a decision, in that case, of the investigator to cancel Mr Vogt's notice, the same as here.

PN632

THE COMMISSIONER: Given that you have made that particular submission, perhaps just give me the particular paragraph numbers that you want to draw to my attention in relation to that particular decision, and I'll certainly go through those because you have made the submission, and Mr Watson has responded to those, and it will be - - -

PN633

MR LINDEMAN: It will give you the opportunity to look at those paragraphs at lunch time.

PN634

THE COMMISSIONER: Yes, because it will be - I think we've established between the parties, it's a matter of looking at the particular circumstances of that particular case and the relevance - transferability of those arguments to these circumstances.

PN635

MR LINDEMAN: Dealing with the submissions that were made on 11 February 2002, paragraph number 7, paragraph number 13, paragraph number 15 - - -

PN636

THE COMMISSIONER: That's, of course, unless doing it this way puts you at a disadvantage, Mr Watson, but, given your earlier submission - - -

PN637

MR WATSON: No, no.

PN638

MR LINDEMAN: Just get a highlighter and just hit the - - -

PN639

MR WATSON: I'm not even going to write it down. My learned friend can go for his life.

PN640

MR LINDEMAN: I'm indebted to my friend. Paragraph number 7, 13, 15, 27, 38, 62, 66. Then dealing with the transcript on 5 April 2002, paragraph 94, paragraph 97, 107, 110, 112, 114. There's a re-statement by Commissioner Smith at paragraph 238 of - - -

PN641

THE COMMISSIONER: But, ultimately, I would have to look at his particular decision, rather than - - -

PN642

MR LINDEMAN: I don't think you need, for present purposes, Commissioner, at all. The matter was not ultimately determined on some of these submissions.

PN643

THE COMMISSIONER: All right. Well, you provide me, and I'll have to go through and look at those particular provisions.

PN644

MR LINDEMAN: Yes.

PN645

THE COMMISSIONER: Yes.

PN646

MR LINDEMAN: The point I'm making here is at 238 Commissioner Smith repeated the substance of what was submitted on behalf of Comcare and the respondent in that first hearing and without any objection on the part of Mr Watson. Then 330 and 331, 871, 874 and 875, and we would link 871 and 875, then 879, then there was an outline under the signature of my learned friend, Mr Watson, and we point to the paragraph 2, starting on page 1, and, in particular - sorry, paragraph 3(a) and (b), and paragraph 4.

PN647

THE COMMISSIONER: I will certainly consider those particular provisions. But I do have to say - and I will go back and examine your submission there - that it was a 2002 decision, the transcript was some time prior to that in that particular matter and I will have to specifically - and I think you have acknowledged this - look at the particular circumstances of that particular matter.

PN648

MR LINDEMAN: Yes. I've made the submission to you earlier, Commissioner, that section 29 provides for the issuing of a provisional improvement notice which can be the subject of a reference to an inspector, who then either confirms or cancels in the same way that the Commission would do - - -

PN649

THE COMMISSIONER: Yes.

PN650

MR LINDEMAN: And that decision, in turn, is the subject of - and appeals potentially to this Commission; and that is what occurred. Mr Vogt was an occupational health and safety representative and he issued a number of notices which had been referred by Telstra to the Commission for review and the investigator cancelled the - being said in cases where - I think the Act actually says that what the reviewing investigator can do is either cancel or issue his own notice.

PN651

Effectively, what he does, in my respectful submission, is to issue a provisional improvement notice if he affirms the notice. But where he cancels it he doesn't have to do anything beyond, saying: "I am cancelling the provisional improvement notice." So you effectively get into the same situation before the Commission, albeit by a slightly different method.

PN652

THE COMMISSIONER: All right. Anything else at this point then, Mr Lindeman?

PN653

MR LINDEMAN: No. Thank you, Commissioner.

PN654

THE COMMISSIONER: I might just take a five minute adjournment, Mr Watson, and then we will hear from you after that.

PN655

MR WATSON: Thank you.

SHORT ADJOURNMENT [12.13pm]

RESUMED [12.24pm]

PN656

THE COMMISSIONER: Thank you, Mr Watson.

PN657

MR WATSON: Commissioner, may I commence by taking you back to the new document filed on behalf of Telstra.

PN658

THE COMMISSIONER: Yes.

PN659

MR WATSON: There was a section, which was on page 25, which picked up on the submission that we made that if there was a challenge to the validity, the challenge had to occur at another place, probably the Federal Court. That was a submission made by us on a misunderstanding of the way in which Telstra had put its case. I don't suggest that that's correct. We wouldn't stand by that. It's plain as day that this Commission has the ability to determine jurisdiction in an ordinary sense.

PN660

We had thought at the time we made that submission that the attack was made at a different level which leads me to take you back to the very front page of this new submission; because it's only really yesterday when we received the draft of this - and last night when Mr Herbert and I sat down to debate it that I really think I ever came to grips with the actual challenge that was to be made by Telstra. The proposition set out in bold, we would respectfully submit, is just wrong but it's the first new paragraph where the assertion is made - quoting from it:

PN661

The basis of Telstra's submission is simple -

PN662

etcetera. It's all the discussion regarding the validity of the improvement notice. Now, there's a lot of dressing and there's a lot of unnecessary issues raised apart from that that, in fact, as we read this document and hear the submissions made today, this is all about whether or not the improvement notices on their face are valid. There are two short - and we would respectfully submit - complete answers to that submission. The first is that in issuing the notices in the form in which they were issued the inspector did no more, no less than that which he was required by law to do.

PN663

Could I show you a copy of regulation 34 of the regulations made under the Occupational Health and Safety Act? That's an extract from the regulations, of course. The Commissioner will see that this regulation deals with the form of certain notices. There's an introductory provision, which, because it employs the word "must", is mandatory in its nature. So that a notice issued by an investigator must be issued in accordance with, and relevantly, regulation 34D; it's form 5. That bundle which I just gave to you has attached to it form 5. Sorry to do this to you, Commissioner, but it may be necessary for you to have access while I make this submission to the improvement notices issued by Mr Groothoff.

PN664

THE COMMISSIONER: I have those right here.

PN665

MR WATSON: If you look, Commissioner, at form 5, the mandatory layout of an improvement notice, you will find that Mr Groothoff has followed it to the very letter. May I just point out some of the features of complaint made by Telstra and show the answer to them. In the substantive provision, where it says, "I, name of investigator", there's a reference to the actual phraseology used by Mr Groothoff, that is, "contravening, has contravened and is likely to contravene".

PN666

Just pausing there, as we understood Telstra's submissions made in writing and today, it was said that that set up a mutually exclusive alternative and reliance by the investigator on the alternatives made the whole of the notice unsound. Well, with respect, the submission is wrongly founded and shouldn't have been made. It's a mandatory requirement that the notice be issued in that form. Then you will see that it specifies that there was a contravention of a section of the Act or regulation; so that one inserts the number.

PN667

Now as we understand it, Telstra's submissions are that because that's all the notice did, it was bad in form and invalid. Again, that submission was wrong. It shouldn't have been made. We followed the mandatory requirements of the law. Then you will see, Commissioner, that the notice calls for the, "reasons for my opinion" and then provides a space for what is described as "a brief description of contravention". Commissioner, we would respectfully submit that that is a total answer to all of those many, many words of attack of Telstra on the form of the notice. There's a second complete answer to it. And in this respect I will need to take you briefly to the OH&S Act. Commissioner, do you have a copy of that there?

PN668

THE COMMISSIONER: I do, Mr Watson.

PN669

MR WATSON: I'm going to pause on the way through and just take you to two little items on the way through to the substantive provisions upon which we rely to this submission, only to save time. Could I take you first of all to section 3: Objects. May I point out some of the objects which were not mentioned by my learned friend? The first, that is, the primary object - because the Courts have said that the objects, when expressed in legislation, are to be interpreted together but in, characteristically, a descending order of importance.

PN670

The first is to secure health safety, etcetera: that's the primary object. Then: to protect persons; then: to ensure expert advice is available; then: to promote an occupational environment, etcetera; then: to foster a co-operative, consultative relationship. The whole of that has to be read together. We would respectfully submit, when that is done, it points to the fact that what we are dealing with in this instance is a case of an administrative notice. It's not to be construed as an indictment or lack of will but, rather, it be given a spirit and intendment in terms of promoting the safety and health, etcetera, of workers.

PN671

Could I then briefly take you to section 29; only because it's on the way through. But what I'm going to show you here now relates to the submission which I will make in due course as to the use that can be made or, we would submit, the inability to make any use in relation to the case of Vogt. In section 29, there's a reference to a different thing altogether. It's a provisional improvement notice. The Commission will see that in sub-section (1) there's a reference to a health and safety representative for a designated work group. That's a matter of art; that's a person who has been appointed for a particular work place to take on this role. It's not necessary to go to the other parts of the Act to define that further because the submission is a simple one: sub-section (1) relates to:

PN672

Where a health and safety representative -

PN673

I will pause there. That's what Mr Vogt was -

PN674

believes, on reasonable grounds, that there's a contravention -

PN675

etcetera. May I just ask you to bear those words, "believes on reasonable grounds", in mind when we move to the next section I wish to show you which is section 47.

PN676

Section 47, of course, relates to the issue of an improvement notice and it's the section relevant here. Section 29 was relevant to the case of Mr Vogt. In distinction with the position in section 29, all section 47(1) requires is that following an investigation an investigator forms the opinion. There is no reference to believes on reasonable grounds. When you see the submissions made in Vogt, the importance of that becomes important; but I will come back to that issue.

PN677

Much has been made in my learned friend's submissions in writing and orally regarding what were described as mandatory requirements in the improvement notice. In particular, reliance was placed upon section 47(3). For the reasons we advance in relation to regulation 34 and form 5, we respectfully submit that there has been complete compliance with that. Again at the cost of repetition, we would make the submission that when one reads section 47(3), one's reading is something which must be interpreted so as to benefit health and safety of workers.

PN678

It's not like an indictment and it's not like a will. It's not subject to strict construction. 3(a) only requires the contravention and opinion and the reasons for the opinion be given: that was done. Commissioner, during argument you suggested to my learned friend that you could read the notice and understand it.

PN679

THE COMMISSIONER: I'm not sure if I suggested. I asked him some questions in relation to it.

PN680

MR WATSON: I think I should withdraw that and say implicit in the questions, it was something which you could understand in the sense that it pointed to a training module and the like and specified what had to be done. The bare assertion by the recipient of such a notice that "I can't understand what you mean", if that's a valid basis for challenging a notice, no notice could ever succeed.

PN681

THE COMMISSIONER: Well, if I can - I don't want to interrupt your submissions, but just on that point if I can take you back. If provided the form 5 - and we've chartered through to some extent the comparison with the actual improvement notice here - and in relation to section 47, it makes reference to that it must specify the breach of the provision of this Act or the regulations that in the investigator's opinion is occurring or is likely to occur. Now, this particular notice makes reference to subsection 16(1) and 16(2) which are under the heading of the General Duties.

PN682

MR WATSON: Yes.

PN683

THE COMMISSIONER: So how do you - given the predominance of the submissions by Mr Lindeman that there the notice is invalid because of lack of particularisation and specification, that it's too vague, what is your response in that it relies on those particular provisions for the breach?

PN684

MR WATSON: That's what the Act requires us to do. In short, when one reads section 47 combined with as one must do regulation 34 and form 5 that is all that is required to be done. More may render the notice invalid because it doesn't follow its mandatory form. Less may render it invalid. Invalidity of the notice is the next matter to which I'll turn and we say it's not important. But they're not arguments which are here. In other words, if section 16(1) alone was specified and nothing more, there would have been a failure to comply with regulation 34 insofar as the reasons for opinion were not given. But once the reasons for opinion are given briefly as the form requires that's sufficient.

PN685

THE COMMISSIONER: All right. So, Mr Watson, you're saying the mere reference to a provision of this Act meets the requirement of 47(3) even if that provision is the general duty in nature. It doesn't require any further particularisation than that?

PN686

MR WATSON: Yes. That's for the purposes of issuing a notice. And then behind the scenes as, Commissioner, you well know because it's been raised by my learned friend time and time and time again, there has been an investigation. They sought your direction that they be supplied with a copy of the report and they were given it. Whether or not this supply is sufficient information for it to be understood by the recipient all becomes a matter for evidence. If the investigator has formed an opinion in good faith but which is wrong, then that's to be investigated by a hearing. It can't mean that on the bare assertions by the recipient of the notice without evidence that the notice becomes invalid.

PN687

THE COMMISSIONER: The alternative way for that question is if, in fact, an alternative provision was to be nominated whether there is such a specific provision or regulation in this Act that directly refers to a breach in relation to - and I'm just looking at that specific provision first of all in terms of the breach of the notice - not all of the other information - but whether there is such a specific provision that would identify the acoustic shock that we are talking about here.

PN688

MR WATSON: I perhaps should deal with this in a little more detail because in the first notice which is identified by being the last number 1, there is actually specification of contravention of section 16(1) and to particular regulations. In the second notice the specification of the breach of the general provision 16(1) but also section - subsection 2(3) which is more specific, then the notice can't be read we respectfully submit without understanding that in each instance the details upon which the investigator is focused are revealed in first, the reasons for opinion and, secondly, the remedial action which should be taken.

PN689

THE COMMISSIONER: Yes. I'm not suggesting that you look at that in isolation just charting through that one in the first instance.

PN690

MR WATSON: The point is this: is that I'm not saying this was deliberate but there have been submissions made to you that both and each of these improvement notices focussed upon a particular incident. And so it was said that the investigator has done more than see it an incident therefore breach. We would ask you to look at them again, Commissioner, neither improvement notice specifies an incident. Both frame it in terms of a risk of injury. There is nothing wrong with that. The legislation actually would encourage someone to act before an injury occurred.

PN691

In discussion last night on this issue, Mr Herbert, who has got a macabre sense of humour, told me of a Queensland case where there was an insufficient fence high up in a work place and a man fell over and plunged to his death. It was thought that he died because he fell and hit the ground but he hadn't. He had had a heart attack. He had died and then fallen to the ground. But the prosecution continued not on the basis that that man had been injured - because he wasn't - by lack of a fence, but rather that a lack of a fence could cause an injury to some other worker and it succeeded on that basis. Framing an improvement notice without relying on a particular incident but rather on the basis of the risk of injury to others is not only acceptable but at its fundamental level desirable.

PN692

It would be better if an improvement notice was issued that a guard be placed on a machine before a worker had their hand injured rather than after. But time and time again it was said that we focussed upon an incident. We haven't. And if there is some problem with a detail of the remedial action to be taken, if there is some particular problem with one aspect or two aspects of things revealed in the notice; that's the nature of the rehearing, the hearing de novo with which this Commission is charged so that there might be an amelioration of the terms. But, Commissioner, there is something more fundamental to all of this that I want to show you about section 48 if I may now do that.

PN693

THE COMMISSIONER: Just in relation to that example that you've provided the provisions referred to in 61 are fairly generic. I note what you say about 16(e) in terms of the reference to training and supervision. The charting then though for the reasons for my opinion: in relation to that example, you would expect that there would be some reference to the particular incident or, in fact, some reference to the fact that there was no particular fence in terms of your analogy. In this particular example here, is that not a problem that there has been no reference to the incident and, in fact, no reference to even the general subject in terms of the acoustic shock or the particulars there; only a reference to the training modules in general?

PN694

MR WATSON: That's in reference to improvement notice number 2.

PN695

THE COMMISSIONER: That's correct.

PN696

MR WATSON: You'd have to read both improvement notices together. And if one looked at improvement notice number 1, there is a reference to a risk of employees being exposed to acoustic incidents as a result of power interruptions. A rather specific reference.

PN697

THE COMMISSIONER: Yes. And so therefore you say that that read in isolation with the general duties is enough in terms of the particularisation?

PN698

MR WATSON: Yes. And then reading notice number 2, one can read it - and again it doesn't have to be read like the Tax Act - it's an administrative notice.

PN699

THE COMMISSIONER: Thank goodness.

PN700

MR WATSON: ..... that employees hadn't been provided with information instruction etcetera. And then in terms of the remedial action to be taken, there's reference to E; learn training modules, head set safety, acoustic incident severity indicators. In (2), a reference to acoustic incidents and in (3) a reference to acoustic incidents. We'd respectfully submit that if you couldn't read that and understand what it meant, you're not trying.

PN701

But there is a more fundamental submission that I would like to make, if I may. And I am not trying to avoid that, but I would dearly love to show you the fundamental flaw in the proposition placed before you by Telstra.

PN702

It is section 48 that concerns us here. When dealing with a jurisdictional issue, one has to look at what this Commission is being asked to do. In section 48, there is a threshold point, subsection 1:

PN703

Where an investigator in conducting an investigation, and relevantly here (f), decides under section 47 to issue an improvement notice, an appeal against the decision may be made by notice in writing to the reviewing authority.

PN704

You, Commissioner, of course are the reviewing authority. What is it that you would be asked to review? The decision, not the notice. The jurisdictional question which arises and which any Tribunal is permitted to determine includes things as to whether or not there has been - this is just one example, proper service. So that before an appeal can be brought, it has got to be given by notice in writing.

PN705

So the Commission may inquire for example, was notice in writing given to the investigator regarding this appeal. Without it, there would be no jurisdiction to engage the Commission. There are other examples. For example, it had to be within jurisdiction, the Federal jurisdiction, if they were just state-based claims. Those sorts of issues are needed to be determined. Once engaged, the only inquiry here is regarding the decision to issue the notice. It is nothing whatsoever to do with the form of the notice. The form of the notice is relevant, because it tells us things about the decision to issue it and the opinion upon which it was based.

PN706

In other words, the whole of the attack described as a jurisdictional attack, on the form of the notice, is misguided. Can I just demonstrate a very good reason why that is so. Reading section 48 again as I will show you in a moment, means that an appeal can be lodged before a notice is issued. If you look at item (g), an employer can appeal - an employer affected, can appeal the decision to issue a notice without apparently relating it back to the notice at all. There would be incidentally some scope for that to work. That shouldn't be regarded as an otiose provision.

PN707

For example, if it was something that there was a noxious material alleged to be being used in some process in foodstuffs, well an employer who didn't want their reputation improperly damaged, let us assume, could try and attack the decision before the notice was ever issued. So the matter could be stopped there. And if the investigator was motivated by improper bases, then the appeal could work. In other words, the notice is only secondary and perhaps even redundant to the primary consideration, which is to look at the substance of a matter as to whether or not the decision should have been made, and the decision in light of section 16 or like provision. And all of it ultimately responsible to the objects of the Act in section 3.

PN708

In other words, we respectfully submit on that basis that whatever it is - I will come back to that. Whatever it is Telstra is asking you now to do, Commissioner, we ask you to decline to do and to let the case go on. The reason why I framed it that way is because one would have thought by now, there having been a directions hearing, two sets of written submissions by Telstra, oral submissions, that someone might have said what it was that you were being asked, Commissioner, to order.

PN709

Are you being asked now to vary the notice, or revoke the notice, or dismiss the appeal. Or to give some other form of relief, which is some sort of opinion that this shouldn't have occurred. What is the form of order which they would ask you to make. Why hasn't it been revealed even now, close to 1 o'clock, as to what that form of order should be. We don't know. We don't even know yet what would be the consequences if it is in fact that they are asking you to dismiss the appeal, rather than revoke the notice. Can someone ask you to find that a notice is fundamentally invalid, and then ask you revoke it. It doesn't seem logical. We still haven't heard that.

PN710

Commissioner, they are my substantive submissions. I now only wish to address one or two other things which have been raised on the way. In respect of the submissions in Mr Vogt's case, we did a little bit of a tally here amongst ourselves, because I was concerned that I may have missed something. And I will only give you the experience of Mr Herbert and myself. But between us we have 49 years of doing cases, and we have never done one together before, so they have been in different court rooms. We have never confronted a submission - - -

PN711

THE COMMISSIONER: Has it not been allowed, Mr Watson?

PN712

MR LINDEMAN: Too dangerous.

PN713

MR WATSON: The point is, we have never heard a submission based on the fact that submissions made by someone in another case should somehow take the place of the law. But be that as it may, for all its novelty value, it doesn't have any bearing here. When you look at the submissions, they were made in the context of a section 29 case. And when you read my submissions, they are directed on the basis of a case called George v Rocket, a High Court decision which related to whether or not a belief could be held by a particular person, comparable to the position of Mr Vogt.

PN714

Also, you will see that the submissions were made in the context of a case where substantive material evidence of an expert character have been called and heard. And on behalf of Mr Vogt, timetables relating to his evidence being breached. Moreover, they are made in the context of Mr Vogt, as you will see recorded in the submissions, expressing somewhat tepidly an intention of withdrawing the appeal. Hardly like this case.

PN715

There is one other matter which I think I should raise, if only because it is said so often, we want to kill it off now. And it relates to the suggestion that this is a two to three month trial. We have got no idea how that estimate could be made. It is not a short trial.

PN716

THE COMMISSIONER: I think there was reference to some 38 witnesses in the original.

PN717

MR WATSON: Yes.

PN718

THE COMMISSIONER: That is only from memory.

PN719

MR WATSON: We don't know who those people are. But we thought it wasn't a short trial. We thought it might be a two week case, and if things didn't go smoothly, even three weeks. But we just don't know where that estimate comes from. The second matter is a matter of procedure. I think I might have been verballed. At no time did I ever agree that these proceedings could not go ahead if a decision was made to make a criminal prosecution. That is another issue altogether, to be determined on another day, and it may never ever, ever arise. But I didn't say that.

PN720

Finally, I want to say just something about the way in which we addressed the matters to the chief executive officer. All we said in our submissions was that that was the appropriate way of addressing Telstra. And we don't think that there has been any problem with that. For example, the chief executive officer hasn't lodged separately an appeal. In other words, it is just a game - - -

PN721

THE COMMISSIONER: Sorry, I didn't hear that.

PN722

MR WATSON: It is just a game. Telstra knows that these notices are directed at it. The reference to the chief executive officer was a polite way of addressing it to a person at the corporation. It is a typical way of doing it. Telstra filed no appeal with reference to the chief executive officer, they know full well what we are doing. Then finally, if that was some kind of, according to them act of invalidity, well we would say why. Why wouldn't, if a responsible person is to be given its proper meaning, it be the chief executive officer.

PN723

Contrary to my learned friend's submissions, when the improvement notices themselves are directed at things like the format of the national training module, we suspect that the head person at Chermside would have very little say in respect of that. And ultimately, it is hard to say why it wouldn't come home to the chief executive officer. It is for those reasons, Commissioner, that we ask you to decline whatever kind of relief they are seeking and in due course we will ask you for some directions so that we can advance this case and get it back on the road to hearing.

PN724

THE COMMISSIONER: Just on that point, Mr Watson, just - and Mr Lindeman raised the other issue in terms of the CEO in relation to the criminal proceedings. Do you have any submission in relation to that?

PN725

MR WATSON: We have - we are not pursuing orders against the CEO, at any level. That was merely a way of directing it to Telstra and addressing it as common courtesy would dictate, as they acknowledge by appealing only on behalf of Telstra and not the CEO. It would be an odd result that if we could say, "Oh, yes, we gave notice in writing to Telstra, we sent it to the accounts department in Adelaide".

PN726

THE COMMISSIONER: So you say that that was administratively appropriate and that the CEO in any event, you say, meets the responsible person test?

PN727

MR WATSON: Yes. We are not seeking any orders against that person - I think it is Dr Switkowski, personally. So - we think Telstra acknowledges that in the way that the appeal is brought. Thank you, Commissioner.

PN728

THE COMMISSIONER: Mr Lindeman?

PN729

MR LINDEMAN: Commissioner, that's rejected absolutely. I mean, section 46 - 47(6) says this:

PN730

The responsible person must ensure that to the extent that the notice relates to any matter over which the person has control, the notice is complied with. Penalty $10,000.

PN731

What are Comcare submitting in terms of what would happen if the notices are not complied with here given the last point that we've raised - that they would never seek to enforce these notices against the CEO? The CEO is the only person against whom these notices could be enforced.

PN732

THE COMMISSIONER: But isn't that more reason why it's the appropriate person to have the notices sent to?

PN733

MR LINDEMAN: With the greatest of respect, no, Commissioner, because there'd be no expectation that he would have - there would be no reasonable expectation that the CEO of an organisation would have day to day management in respect of issues like - whatever they are. We're arguing here in a - you know, in a vacuum. You have clearly and unequivocally asked my learned friend what it is that the reasons are. You could not have done it more clearly or, if I may say with the greatest of respect, eloquently than saying, "Look, in respect of your example, there's no offence." So you would simply say, "The reasons for my belief that there was a breach in respect of the workplace where the man fell, whether he fell or not, is there was no fence." The remedy, put up a fence. A perfect example of how a notice should be written.

PN734

Commissioner, just going back to the first point that's raised, or I should perhaps go backwards. It's said with great force again that we haven't indicated what we seek from the Commission. I refer the Commission to the written submissions where, in the conclusions, we say this as the last sentence:

PN735

The Commission should decline to either amend such a notice and/or to deal with the merits on the basis that it lacks jurisdiction to do so.

PN736

In the conclusion of the submissions, or the reply filed today, the Commission should decline to either amend such notice and/or deal with the merits on the basis that it lacks jurisdiction to do so.

PN737

On the basis of the submission you would simply conclude that you do not have - because you do not have valid notices before you, you do not have jurisdiction to proceed to hear any appeals as to the merits. It's in the form of a permanent stay effectively. What does that mean in practical terms? Well, if Comcare could, and my friend has been asked and he can't tell you what the reasons are for the breach here and/or indeed the breaches here, but if they could formulate a breach - that is, by particularising the general duty relevant to what they say the specific risk was found to be at Chermside, if one was found, and what they say by way of what the reasons are why it's said that that particular risk exists and Telstra, or more specifically Telstra CEO board, bears responsibility in respect of the existence of that risk, if they can say that - if they can describe what they are, tell us.

PN738

You see, the difficulty is that we said throughout our submission, Commissioner, that there can be no limit whatsoever to any hearing on the merits unless they're confined by the nature of the breach - that is the particular acts or omissions which are said to give rise to a breach of what is otherwise a perfectly general duty. You would be embarking, Commissioner, on some totally undefined investigation. More importantly, as we've said repeatedly in our submission, that the power of the Commission here is to either affirm or cancel and/or substitute for the decision something which falls into the same category. Well, how do we determine the category of opinions that have been - - -

PN739

THE COMMISSIONER: Well, Mr Lindeman, when I asked Mr Watson those particulars in terms of the breach and he took me to 16(1) and 16(2)(e), I think it is from memory, and then I asked him, well, if they are the general duties and there's some particularity in 16(2)(e) in terms of the supervision and training, and then if you move on, he - and I said they are general duties but - when I asked him how would the employer - I think a question to that effect - be aware of the particulars, because that's predominantly what was - what your case in this is about as I understand it in terms of that the notice has been vague, and I acknowledge what Mr Watson's saying, that there's been again a focus on the notice, but the questions in relation to Mr Watson were along the lines of where are the other specifications. And if you look at the improvement notice in terms of 271(2)INI or IN1, where it sets out the incident, and it sets out the reference to the acoustic incidents as a result of power interruptions and a conclusion that there are two other Telstra centres where similar incidents have occurred, and that particular improvement notice asks or specifies that the employer move on to undertake a risk assessment, where do you say in relation to those reasons that there is a lack of information?

PN740

MR LINDEMAN: It doesn't tell you what in relation to acoustic incidents is the risk. Just to simply say - - -

PN741

THE COMMISSIONER: But isn't that why it's - isn't that why it's requiring the action in terms of the improvement that a risk assessment be undertaken to identify and minimise the hazards?

PN742

MR LINDEMAN: No, no. Well, what we say that it's simply a fishing expedition. You will find that in the paragraph numbers that we raise in respect of the Vogt case, that that was one of the propositions that was put, that what Mr Vogt was doing was essentially just, you know, engaging in a fishing expedition which is precisely what's happening here because it's not indicated - - -

PN743

THE COMMISSIONER: The other notice does refer to, as I said to Mr Watson, the training in terms of what training is provided and been reviewed.

PN744

MR LINDEMAN: Can I just say this - - -

PN745

THE COMMISSIONER: Yes.

PN746

MR LINDEMAN: - - - that even if one were to be generous and say that it specified a risk, what is the reason for that risk. See you test - you test whether or not there is a risk by the requirement to state what the reason for the risk is - that is, answering the question why is it a risk.

PN747

THE COMMISSIONER: Yes.

PN748

MR LINDEMAN: There's no answer provided. Nor could Mr Watson provide an answer to you.

PN749

MR WATSON: Well, I can. I'll tender the report. I'm pretty offended, after a while, of hearing about how this is a fishing expedition and how there's no proper basis. This whole thing has been denied a proper evidential basis. We can tender the report and you can see whether or not my learned friend should be making submissions of that character.

PN750

MR LINDEMAN: We've - - -

PN751

MR WATSON: I can tell you, Commissioner.

PN752

MR LINDEMAN: We have been at one in our submissions, and my learned friend was at pains to say that the report ought not to be, and he says in his reply to the submissions that the report should not be - form part of anything to do with these preliminary submissions.

PN753

THE COMMISSIONER: But I think in fairness - I mean, it was stated at the initial hearing that this wasn't a matter that required evidence and that I'm being asked to make this determination on the face of the papers.

PN754

MR LINDEMAN: You are.

PN755

THE COMMISSIONER: That's before the Commission.

PN756

MR LINDEMAN: Yes.

PN757

THE COMMISSIONER: I think that was the questioning to you at the outset. Whether I can make these determinations without hearing evidence, and they have been your submissions - - -

PN758

MR LINDEMAN: Absolutely.

PN759

THE COMMISSIONER: - - - that in terms of the - that they are invalid in terms of the lack of evidence. And that has been the basis of the jurisdictional hearing.

PN760

MR LINDEMAN: They are invalid - - -

PN761

THE COMMISSIONER: Sorry, not on the basis of the evidence. My apologies.

PN762

MR LINDEMAN: - - - because of the failure to comply with the mandatory requirements of Section 47. Mr Contin says - look, the first thing I should say is that what we're facing is a totally new - yet a totally new position again on behalf of the respondent and Comcare. There's no attempt in any way of support the submissions that were provided to you in writing. And it's done on the basis, "Well, we didn't really understand what you were putting". Well, with the greatest of respect, we explained in some detail in our written submission precisely what the basis of our submissions were and it's submitted that they do fully contain what the basis of our assertions are here. Commissioner - - -

PN763

THE COMMISSIONER: I'm not sure that I agree with that, that there is a totally new argument there. I think the Form 5 goes to responding to your submissions.

PN764

MR LINDEMAN: Well, can I say this; the Form 5, Commissioner, does no more to describe the particular - the type of form that's to be used. There is nothing in Regulation 34 that says if you comply with the form you, therefore, comply with Section 47.

PN765

THE COMMISSIONER: All right.

PN766

MR LINDEMAN: There is nothing in Regulation 34 that says that. In any event, the law in relation to attempting to use a regulation, if you like, as the basis for determining what the meaning of the Act might be - and it's submitted there is no - there can be no argument that the requirements of Section 47 to - particularly Section 47(3)(a) which says:

PN767

The notice must specify the contravention of a provision of this Act or the Regulation that, in the investigator's opinion is occurring or is likely to occur -

PN768

And set out the reasons for that opinion. There can be no argument that there's any difficulty with that proposition. There's no ambiguity there. More importantly the disjunctive "or" is used in Section 47(3)(a). The disjunctive "or" is used also in the form of the notice, which is Form 5. It picks up the requirements of Section 47(3)(a). It contains the word "or, or has" - clearly requires, in my respectful submission, one or the other to be simply deleted. There is nothing in Regulation 34, Commissioner, that operates to invalidate any notice which has been issued that doesn't comply in absolute terms with Form 5.

PN769

Regulation 34 is merely a facilitatory provision which helps to establish a form of - a common form for an improvement notice. It, in no way, does anything to alter the requirements which are clearly set out in Section 49. Indeed, this is what the learned authors of statutory interpretation in Australia, Pearce and Getty, says on this point at 3.23, all of which is instructive but going to the basic inclusion:

PN770

Generally speaking when a provision of an Act is under scrutiny delegated legislation -

PN771

which, of course, we're dealing with when we look at the Regulation -

PN772

... can hardly be considered to be material "which is capable of assisting in the ascertainment of the meaning of the provision". Therefore it would be inadmissible under Section 15AB of the Acts Interpretation Act 1901, Commonwealth, and its counter-parts.

PN773

presumably in other States. See 3.14:

PN774

However, if the Court concludes that it is so capable the delegated legislation may be ...(reads)... leads to a manifestly absurd or unreasonable result.

PN775

How could it be said that the requirements in Section 47(3)(a) create - - -

PN776

THE COMMISSIONER: But in terms of Section 47(3)(a) the Form 5 does specify certainly the provision of the Act in terms of the breach, in terms of 16(1) and (2).

PN777

MR LINDEMAN: Yes. Correct.

PN778

THE COMMISSIONER: And it specifies the period. I mean, there is - the discrepancy in terms of between what is presented in the Form 5 and what you say is the gap in the employer's knowledge - I mean, what the investigator has to provide on the improvement notice. There is - I'm acknowledging your submission that you're saying that Telstra is unsure to some extent - I think in terms of the reasons - but in terms of what needs to be provided in the Form 5 and in terms of the Commission's jurisdiction, as pointed out by Mr Watson, there is a provision there that's specified in terms of the breaches.

PN779

There are some reasons there in terms of the incident, that the amalgamation of both - reasoning is provided on both notices and there is a time period and there is remedy action that's set out on those notices in terms of review of the training period and, in fact, the risk assessment.

PN780

MR LINDEMAN: Well, with the greatest of respect, Commissioner, we've put our arguments as to those points, but let's concentrate on the point that we're in agreement with and that is the absence of the reasons as to why they say that there's been a contravention. And it's the package which would tell us what the debate is about; that is the package of - that's set up by Section 47(3)(a). We need to know why it's said, for example, that acoustic incidences give rise to risk.

PN781

Because otherwise what are we reviewing? We're not reviewing the report, we're reviewing an allegation of breach and the reasons why it's said that that allegation of breach exists. You can't begin to even determine what the scope of the evidence would be - or what the scope of the inquiry is unless we have those essential ingredients, which we do not have. That's all quite apart from our arguments that these - that this breach is alleged to lie at the feet of the CEO, which we say are the reasons we've provided in both our original submission and our reply are not answered - in my respectful submission are simply not answered by saying, "Oh, it's a convenient form of address". Just going over the page - I don't think I've read this to you. This is at 324:

PN782

However, it would seem that if the conflict is irreconcilable -

PN783

That is if you have got - you conclude - this, with respect, doesn't mean that you can't, but there are some manifest - absurdity or unreasonable result arising from the provisions of Section 47 and, in particular, 47(3)(a). It says:

PN784

However, it would seem that if the conflict is irreconcilable in the final result the regulation must give way.

PN785

That is, give way to the Act. It dies. There's nothing - there's no conflict between the regulation. The regulation is just, as I submitted, simply facilitative as to form. But it does not - in terms of the form it can't be read as saying that where there's a disjunctive between whether the offence - see, if it was said that there had been a past offence which is likely to be re-offended - or there is a present continuing offence, that makes a big difference in terms of what Telstra can look at to formulate a view as to what it is said that the CEO has done wrong.

PN786

As I said, Commissioner, there is a danger in simply looking to - or rather looking at the allegation that there is a risk by reference to something because there's been an investigation. As I indicated, the decision of Grove J that I referred to this morning very eloquently said that the mere fact that there has been an incident does not mean that there's been a breach of the legislation. So we say that the "or" is disjunctive, whether you're looking at the Form 5 or you're looking at Section 47. We say that there's no conflict. We say that, in truth, nothing in Regulation 34 or in Form 5 advances the respondent's position in any shape or form.

PN787

THE COMMISSIONER: Before you do that - Mr Watson, there was one question that I did want to put to you that I've overlooked and that was the raising of the matter by Mr Lindeman in terms of the competent appointment and direction of the investigator. I think he put a challenge there in relation to whether there was an appropriate appointment.

PN788

MR WATSON: A funny challenge because we gave them that information. Of course I will give that undertaking: we have already provided it to them. It was sent to you the day after the last hearing.

PN789

MR LINDEMAN: I'm sorry, Commissioner, I was just distracted. What was that exchange?

PN790

THE COMMISSIONER: It's just that I'm not sure that I have those in my papers, Mr Watson.

PN791

MR WATSON: I mean, that's clearly a matter for evidence but we can send them to the Commission as well; that's the delegation what-not. We can do that in the next day or so. But we've sent them to them some time ago.

PN792

THE COMMISSIONER: That was the issue that you raised, Mr Lindeman, about the appointment and the scope of the direction?

PN793

MR LINDEMAN: As we pointed out, if it's Mr Watson's position today, as it was in paragraph 14 of his reply or response, that there exist documents which validly ..... and there exists a direction, which validly directs, and both those documents comply with the enabling legislation and the law relevant to the allegation, then there will be no argument.

PN794

THE COMMISSIONER: All right. Well, I think Mr Watson has undertaken to provide those so that they can be done. Was there anything else, Mr Lindeman?

PN795

MR LINDEMAN: Yes, Commissioner. In terms of companies, we submit that companies have a registered address; they are, in every sense, as required by section 22 of the Acts Interpretations Act, a separate legal being. Any correspondence can be addressed to the CEO, not necessarily by name - or could be addressed to him as a responsible person - section 47(1). We ask the question: why, in section 47(2), is the reference to the person in charge not what one would expect, in fact, and that is the person in charge of the facility rather than the CEO? We say the submissions in relation to the CEO that have been advanced here today and/or are contained in the submissions simply make no sense. They don't recognise that there is a separate legal existence in the sense of a legal person, as raised by section 47, for the purposes of the issuing of a notice.

PN796

THE COMMISSIONER: I suppose that's why I asked you those questions in terms of the particularising - I mean, who is in charge of undertaking or delegating appropriate resources for risk assessments, for review of national training strategies, those sorts of things. It seems reasonable that - firstly, to send a notice of this importance to a prominent person within the company who could oversee all of these matters or, no doubt, delegate to the appropriate person if, in fact, there's a range of managerial people responsible for the things that are indicated in those improvement notices.

PN797

MR LINDEMAN: Commissioner, the question is not, with the greatest respect, what would be reasonable in terms of the practicalities of things. The question is: what does section 47 say with respect to the capacity to allocate, if you like, a responsibility to somebody other than the employer. That is simply optional. The notice could have been directed to Telstra Corporation or it could have been addressed to a person who could be identified as falling within the definition of a responsible person.

PN798

THE COMMISSIONER: All right.

PN799

MR LINDEMAN: If the Commission pleases. My instructing solicitor says it could be Telstra Corporation, care of the chief of section. There's no need to refer to the executive whatsoever. But, critically, Commissioner, the point is that the way the notices have been issued, in my respectful submission, the only party that's at risk is the CEO, the responsible person named. And that's the fundamental problem with naming somebody other than the person who fits within a responsible person definition.

PN800

I might make this point, Commissioner: that it's probably the case that my learned friends, in their combination of years in practice, have not had the sort of submission that was made in respect of what was said by Comcare in the Vogt matter because it is a brave lawyer indeed that stands up in the same Tribunal, albeit differently constituted, in what we say are proceedings which are, we accept, not identical but we say that they are essentially the same. The submissions that we point to were of the nature that fit, that wholly fit, the type of appeal that's on foot here.

PN801

My learned friend took you to section 29. It's the section 29(10) decision. That was a decision of the investigator to cancel, which triggered the equivalent power in the Commission in the Vogt matter under section 47, albeit at a different sub-section, to - and it's specifically 48(2)(a) where, "An investigator, having conducted an investigation, decides under section 29 to cancel an original improvement notice", etcetera. Then that can be the subject of an appeal, which was actioned by, in that case, Mr Vogt, the provisional - so it moved forward a step to what he has mentioned.

PN802

THE COMMISSIONER: Mr Lindeman, just on that - I don't want to confine you but any estimate as to - just so I can schedule the luncheon adjournment - whether we should press on at this point? How long do you think - - -

PN803

MR LINDEMAN: It might be useful if you would take the adjournment. I expect to be no longer than 10 minutes.

PN804

THE COMMISSIONER: My preference would have been to hear those submissions and to conclude the matter.

PN805

MR LINDEMAN: All right.

PN806

THE COMMISSIONER: Thank you, Mr Herbert.

PN807

MR LINDEMAN: I should add in relation to the alleged surprise that things that have been advanced to this Commission should be, in effect, thrown back in the faces of those who raised them. Commissioner. what we have to look at here is the fact that my learned friends appear for the regulatory authority. And it's not the case that we're dealing with two private litigants. We're dealing with a position that is being advanced by the regulatory authority.

PN808

Presumably, one would expect there to be some consistency flowing through submissions by a regulatory authority of the nature of Comcare and that's not even what has occurred, in our respectful submission. We would ask you to look in particular in that regard at paragraph numbers 875 and 876 in the Vogt matter to which we, I think, have referred you earlier. We have indicated what - the nature of the order that we seek or what action we seek. We say that there has been absolutely no doubt that it be dealt with the CEO.

PN809

It's interesting that my learned friends were advancing submissions on the spirit and the intendment of the Occupational Health and Safety Act when they specifically scoffed and poured scorn on Telstra's submissions which were based on the purpose of the legislation.

PN810

It's submitted, Commissioner, that in substance what has been advanced on behalf of the respondent and the regulatory authority here is what we said up front in our submissions today. That is: that they are putting forward a framework in relation to the issuing of notices which they say, once issued there is some form of presumption; that everything that was done was done in good faith and must be taken as having complied with all necessary legal requirements. Exactly the same submission as we say was raised in the Rutchen's matter and was rejected.

PN811

Rejected with the Full Bench saying specifically and based on authority that once an appeal comes before this Commission and it's submitted, one has to obviously ..... saying but you feel is validly before the Commission. It proceeds without any presumption. Now, it's been - it was Telstra's position in Rutchen and it's - sorry - it's Comcare's position - was Comcare's position in Rutchen and again in this case that you just treat everything that was done here as being regular. And it follows from that that there should be some sort of presumption of correctness.

PN812

That was rejected and it's rejection should continue in this case and for all of the reasons that we've indicated, Commissioner. And the most important one being that you simply would not know what it is that you're supposed to be either cancelling or confirming or what alternative remedial action you might be expected to oblige to be taken unless we know what it is. It's said to be fundamentally wrong in these notices. We just don't know. We don't continue to say it because just for the sake of it. We simply do not know what it is that is said constitutes the risk and, in particular, the reasons why there is or was a risk whatever it might be.

PN813

Commissioner, you have seen what we have said about particulars not being appropriate at this stage. And we make that point that now that the matter is here and our friends don't point to any power for onset of an appeal for either the Commission, or indeed the respondent to somehow cure a defect by providing particulars. We say that if the appropriate way that Comcare should proceed is that if they believe that there is a way in which a breach could be properly articulated and the reasons as to why that breach exists can be properly articulated, well, that has to be done in a new notice. They're the submissions for Telstra. Thank you.

PN814

THE COMMISSIONER: Thank you, Mr Lindeman. All right. On the basis there is nothing else, I'll adjourn and reserve my decision.

ADJOURNED INDEFINITELY [1.33pm]