Fair Work Act 2009
s.604—Appeal of decision

Appeal against decision of Commissioner Cloghan at Perth on 26 October 2015 in matter number C2014/3066 - appeal under Offshore Petroleum and Greenhouse Gas Storage Act 2006 - improvement notice - nature of appeal - historical or current assessment.

[1] This is an appeal, for which permission is required, against a decision of Commissioner Cloghan issued on 26 October 2015 (the Commissioner’s Decision). 1 The Commissioner’s Decision dealt with a preliminary issue associated with an appeal made to the Fair Work Commission (the FWC) under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act) and Rule 53 of the Fair Work Commission Rules 2013.

[2] The background to the appeal was summarised in a decision of President Ross issued on 22 February 2016. 2 In that decision the President refused a request for the referral of the question of law to the Federal Court of Australia pursuant to s.608 of the Fair Work Act 2009 (the FW Act). The President summarised the history of this matter in the following terms:

“[2] In January 2014, Sedco was the registered operator of an offshore drilling rig, Transocean Legend. Transocean Legend was an ‘offshore petroleum facility’ for the purpose of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act). On 23 January 2014, following a planned inspection of Transocean Legend, NOPSEMA issued Sedco with an improvement notice under Schedule 3, clause 78(I) of the OPGGS Act. The improvement notice was issued on the basis that NOPSEMA alleged that it believed that Sedco was contravening clause 9(2)(e) of Schedule 3 of the OPGGS Act.

[3] On 13 February 2014, Sedco applied to the Commission seeking revocation of the NOPSEMA’s decision to issue the improvement notice. The application was made pursuant to clauses 80A and 81 of Schedule 3, Part 4, Division 5 of the OPGGS Act, clause 3 of Schedule 3 of the OPGGS Act, and Rule 58 of the Fair Work Commission Rules 2013.

[4] At a conference convened with the parties on 30 June 2014 the Commission requested that the parties confer to see if they could agree on the proper approach to the appeal, and the appropriate questions to be determined in the appeal. The parties conferred but were unable to agree.

[5] It was accepted by both parties that the hearing of the application is in the nature of an appeal de novo or 'merits review'. The parties disagreed, however, about what materials would be relevant to the Commission's determination of the appeal. Sedco contended that the Commission should determine the appeal based on the facts and law current at the time of the Commission’s decision (current assessment). NOPSEMA contended that the Commission should determine the appeal based on the facts and law current at the time of NOPSEMA’s decision to issue the notice (historical assessment). The parties jointly sought a determination from the Commission as to this preliminary question of law, that is whether the appeal required current assessment or historical assessment.

[6] The preliminary question of law was heard by Acting Commissioner Cloghan on 31 March 2015, who received detailed written and oral submissions from the parties. The substantive hearing in the appeal was held over pending the outcome of the preliminary question of law and the settling of the questions for determination in the substantive hearing.

[7] Acting Commissioner Cloghan delivered his decision on 26 October 2016 and determined that a historical assessment was the appropriate method of determining the application adopting the questions for determination that had been proposed by NOPSEMA. Sedco has appealed the Commissioner’s decision and that appeal is to be heard on 25 February 2016.

[8] It is also relevant to note that the steps required to be taken under the improvement notice were completed in 2014 and that at the time of the Commissioner’s decision the Transocean Legend was no longer a registered facility for the purposes of the OPGGS Act. Despite these considerations Sedco maintains its objection to the improvement notice and continues to press for its revocation.” 3

[3] In refusing the referral request, the President acknowledged that the question of law is fundamental to the FWC’s jurisdiction as the reviewing authority under the OPGGS Act and was an issue of substance and complexity. The President noted the matter was set for the appeal hearing but that the matter would not require Sedco Forex International Inc (Sedco) to do, or not to do anything because the work required under the improvement notice had been done and, in any event, the Transocean Legend was no longer registered for the purposes of the OPGGS Act.

[4] Sedco sought permission to appeal against the Commissioner’s Decision on the basis that it asserted that the decision applied an incorrect approach to the matter referred to him. Sedco advised that it sought to challenge the improvement notice so as to protect its reputation with particular regard to future tendering arrangements. Sedco advised that, even if this appeal was not granted, it was confident that the appeal against the improvement notice would be upheld on an historical basis.

[5] The Commissioner’s Decision set out the relevant terms of clause 81 of schedule 3 of the OPGGS Act as they existed at the time.

“[14] 81 Appeals against decision of OHS inspectors

Appeals to the reviewing authority

(1) If an OHS inspector, in conducting an inspection or having conducted an
inspection:

(a) decides, under clause 39, to confirm or vary a provisional improvement notices; or

(b) decides, under clause 75, to take possession of plant, a substance or a thing at a workplace; or

(c) decides, under clause 76, to direct that a workplace, a part of a workplace, plant, a substance or a thing not be disturbed; or

(d) decides, under clause 77, to issue a prohibition notice; or

(e) decides, under clause 77, that the operator of a facility to whom a prohibition notice has been issued has not taken adequate action to remove the threat to health and safety that caused the notice to be issued; or

(f) decided, under clause 78, to issue an improvement notice;

an appeal against the decision may be made, by written notice, to the reviewing authority by:

(g) …

(2) … (my emphasis)

Appeal does not affect the operation of a decision

(3) Subject to this clause, the making of an appeal against a decision referred to in subclause (1) or (2) does not affect the operation of the decision or prevent the taking of action to implement the decision, except to the extent that the reviewing authority makes an order to the contrary.

Suspension of improvement notices etc.

(4) If the decision appealed against is a decision under clause 78, to issue an improvement notice, the operation of the decision is suspended pending determination of the appeal, except to the extent that the reviewing authority makes an order to the contrary.

(5) If the decision appealed against is a decision of an OHS inspector, under clause 39, to confirm or vary a provisional improvement notice whose operation has been suspended pending the inspection of the matter to which the notice relates, the operation of the notice is further suspended pending determination of the appeal, except to the extent that the reviewing authority makes an order to the contrary.

Reviewing authority’s decision on appeal

(6) The reviewing authority may:

(a) affirm or revoke the decision appealed against under subclause (1) or (2); and

(b) if it revokes the decision – substitute such other decision as it thinks appropriate.

(7) If the decision is:

(a) varied; or

(b) revoked; or

(c) revoked with the substitution of another decision;

the decision is taken to have effect, and always to have had effect accordingly.

…” 4

[6] Having considered a number of authorities, including the High Court of Australia’s decision Shi v Migration Agents Registration Authority (Shi), 5 the Commissioner concluded that the nature of the review he was required to undertake lay in the provisions of the relevant legislation. Having reached that conclusion, the Commissioner determined that the FWC as the reviewing authority under the OPGGS Act, was required to review the decision to issue the improvement notice at the time it was issued. The Commissioner concluded:

“[83] Having considered the objects of Schedule 3 of the OPGGS Act which is to promote, secure and manage a safe working environment and the overall scheme of the Schedule, I am satisfied that the Commission, as the reviewing authority, is required to consider an OHS Inspector’s decision at the time it was made.

[84] For the above reasons, the questions for determination will be those set out by NOPSEMA in paragraph [19] of this Decision.”  6

[7] Earlier in his decision the Commissioner recited the National Offshore Petroleum Safety and Environmental Management Authority T/A NOPSEMA (NOPSEMA) position in the following terms:

“[19] The Respondent submits that the questions for determination are as follows:

“(1) Whether, on the evidence and material before the Commission, the Applicant was, as at 23 January 2014, contravening clause 9(2)(e) of Schedule 3 of the OPA on the basis of the reasons set out in IN 0539.

(2) If the answer to (1) is in the affirmative, whether, on the evidence and information before the Commission, and based on the facts in existence as at 23 January 2014, the issuing of IN 0539 was, in the exercise of discretion, the preferable decision.”” 7

[8] At face value there appears to be a difference in the conclusion reached in these last two paragraphs of the Commissioner’s Decision. However, on a fair reading of the decision, we think that he adopted the NOPSEMA approach which enabled consideration of any material put to the FWC as part of the appeal process, so as to form a view about whether an improvement notice should have been issued in January 2014. We have approached the appeal from that perspective.

Appeal grounds

[9] Sedco asserts that the Commissioner’s Decision is not consistent with the requirement for a hearing de novo agreed by the parties. That is, the de novo hearing requires a current assessment rather than an historical assessment. In this regard, Sedco also asserts that the Commissioner’s Decision is inconsistent with a proper construction of the OPGGS Act, together with the following authorities:

• Shi; 8



• Australian National Railways Commission v Rutjens (Rutjens); 9 and



• Re Aged Care Services 27 (Kirralee) Pty Ltd and Secretary, Department of Health and Ageing (Kirralee). 10

[10] Sedco asserts that the OPGGS Act, and these decisions, mean that the Commissioner was in error in determining to adopt an historical approach to the review of the improvement notice. Sedco assert that the Commissioner’s Decision ran contrary to what it described as the “presumptive rule” approach articulated by McHugh J in the High Court of Australia’s decision of Re Coldham; Ex parte Brideson (No 2) 11 which established that there is a presumption in favour of exercising a power of court review on the basis of a current assessment. Sedco asserted that the Commissioner erred in founding his conclusion on the definition of “review” in as much as the description of “reviewing authority” does not evidence an intention or requirement for an historical assessment.

[11] Additionally, Sedco advise that, after the appeal against the improvement notice was lodged, the OPGGS Act was amended in relation to the provisions relating to improvement notices. Consequently, the maintenance of an historical approach to the review of the improvement notice would give rise to questions about the standing of the original legislative provision.

[12] NOPSEMA’s position was that the Commissioner’s Decision was correct in that it was consistent with the provisions of the OPGGS Act and the same (and additional) authorities relied upon by Sedco. NOPSEMA argued that the matter referred to the FWC incorporated a temporal element which required that the appeal be limited to the state of affairs at the time of the inspection which led to the improvement notice. NOPSEMA distinguished between these circumstances and those considered in Shi, Rutjens and Kirralee.

[13] NOPSEMA oppose any grant of permission to appeal the Commissioner’s Decision. It contends that, even if permission to appeal in this matter was refused and the matter proceeded before the Commissioner on the basis of an historical assessment, the parties retained their appeal rights.

[14] NOPSEMA assert that the adoption of a current approach to the appeal would render an appeal nugatory in a manner inconsistent with the objective of the legislation. In terms of the amendments made to the OPGGS Act since the improvement notice was issued, NOPSEMA assert that these are not material to the issue here and do not assist in clarifying the intention of the legislation at an earlier time. Further, NOPSEMA assert that the Commissioner did not err relative to the “presumptive rule” but rather, correctly applied the approach in Shi. In terms of the asserted difficulties with the application of the approach adopted by the Commissioner, NOPSEMA relies on a recent decision in Technip Oceania Pty Ltd v National Offshore Petroleum Safety and Environmental Management Authority T/A NOPSEMA 12 which dealt with an appeal against the issuing of a prohibition notice. Additionally, NOPSEMA assert that other decisions13 recognised legislative differences which supported its position that the Commissioner was correct in the adoption of an historical approach.

Consideration

[15] In Rutjens the Full Bench explored the different types of appeal proceedings. 14 Whilst we return to this analysis shortly, it is important to note that the potential exists for some confusion about the use of the term “de novo”. The Full Bench in Rutjens remarked:

“Phillips’ case is an example of the third category of appeal, namely, an appeal de novo. An appeal of this nature involves a fresh hearing with the parties being entitled to begin again and adduce new evidence: see Sweeney v Fitzhardinge (1906) 4 CLR 716; Simpson Ltd v Arcipreste (1989) 53 SASR 9. To add to the confusion this appeal is frequently described as a ‘‘rehearing’’ (Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd at 620 per Mason J).” 15

[16] As a preliminary observation, we note that the term “de novo” might be taken to have a mandatory current assessment characteristic devoid of consideration of historical factors. For the reasons that follow, we have adopted an approach to the parties’ submissions which refers to two distinct concepts; namely, the limitation of an appeal under the OPGGS Act to the circumstances that prevailed at the time the improvement notice was issued and alternatively, to an appeal which is founded on a current assessment of the relevant circumstances. In so doing, we have endeavoured to minimise the potential for confusion about the temporal nature of the appeal.

[17] As a matter of convenience we have initially considered the Full Bench decision in Rutjens. That decision was an appeal against a decision pursuant to the then s.48 of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (the OHS Act). That appeal related to a prohibition notice issued by an inspector. The OHS Act provided for an appeal to the Australian Industrial Relations Commission against such a notice. The Full Bench considered the specific appeal provisions in the OHS Act in the context of its consideration of the nature of the appeal. The Full Bench stated:

“It is well established that appeals may generally be divided into three main categories: an appeal strictly so called (sometimes referred to as an appeal stricto sensu); an appeal by way of rehearing; and an appeal de novo.” 16

[18] Having considered these three categories the Full Bench then observed:

“Despite the fact that these three categories of appeal are well established and much discussed in the authorities, it is important to bear in mind the observation of Cox J in Wigg v Architects Board of South Australia at 114 that:

“It is not to be supposed, of course, that a statutory appeal procedure will always fit easily into one or other of the three categories discussed above.
It is open to a legislature to create any kind of appeal it pleases, including a hybrid that exhibits features of more than one of the classic categories.” 17

[19] The Full Bench concluded:

“The nature of the appeal provided in s 48 of the OH & S Act must ultimately depend on the terms of the statute conferring the right.” 18

[20] The Full Bench then considered the powers and functions of the authority from which this decision the appeal lies. It concluded:

“The power to make, on appeal, such a decision as it thinks appropriate subject only to the requirement that it is a decision of the kind appealed against, points to the conclusion that the Commission is required to decide the case on the facts and law which exist at the date of its decision: see Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267; 33 IR 473; Public Service Association of South Australia v Federated Clerks’ Union of Australia; South Australian Branch (1991) 173 CLR 132; 39 IR 304; R v His Honour Judge Rendit; Ex parte Health Commission of Victoria [1982] VR 279.

Given the nature of the proceedings before the primary decision-maker and the terms of s 48 of the OH & S Act we have concluded that an appeal pursuant to s 48 is to involve a hearing de novo. As previously stated an appeal of this nature involves a fresh hearing with the parties entitled to begin again and adduce new evidence. The essential issue to be determined by the Commission on appeal is whether it is, on the evidence before it, satisfied that it is ‘‘reasonably necessary to issue a prohibition notice in order to remove an immediate threat to the health or safety of any person’’ (s 46(1)).

The conclusions reached by the primary decision-maker in this regard will be relevant to the determination of the issue before the Commission but they are not decisive. The task of the Commission on appeal is to make its own decision, in place of the investigator, on the basis of the evidence and material before the Commission. There is no presumption that the investigator’s decision is correct.” 19

[21] We summarise these conclusions in the following terms. Firstly, the diversity of appeal approaches and types needs to be acknowledged in so far as this extends to the manner of the appeal, the considerations involved and the extent to which it involves an historical or contemporary assessment of the originating decision. Secondly, the provisions of the originating legislation are fundamental to the determination of the characteristics of the appeal and require an analysis of the objective and specific provisions of that legislation. Thirdly, there is significant authority which indicates that an appeal should be determined on the facts and law which exist at the date of its decision but such an approach must be consistent with the underpinning legislation. Finally, even if such a contemporary approach is adopted, the conclusions reached by the primary decision-maker will be relevant.

[22] In its consideration of the circumstances of that matter, the Full Bench in Rutjens had noted the provisions of the OHS Act and that the matter that gave rise to the appeal was a prohibition notice under that legislation. The Full Bench observed that this prohibition notice prohibited the continuation of a workplace practice. Whilst the Full Bench did not explicitly state that this practice might, were it not for the prohibition notice, have continued, we think this could reasonably be inferred. As a consequence, the adoption of a current approach to the appeal did not ensure a given outcome of the nature which would follow if the approach urged upon us by Sedco was followed.

[23] In Shi, the High Court of Australia was concerned with an entirely different circumstance in terms of the registration of a migration agent which had been cancelled and was the subject of various challenges. The Court held that the review of a decision under the Migration Act 1958 (the Migration Act), as it then applied, required the Tribunal to be satisfied that at the time of the review the person was a fit and proper person to give immigration assistance.

[24] The Court’s decision in that matter again commenced from the provisions of the Migration Act as a starting point. 20 Having considered those provisions, Kirby J stated:

“[25] Focusing on the legislation: To resolve the question of whether the Tribunal has exceeded or mistaken its jurisdiction and powers a court must give close attention to the enabling legislation. It is undesirable to attempt universal or unqualified propositions. Here, the issue is how to define the jurisdiction and powers of the Tribunal in conducting a review of a decision of the Authority, having regard both to the general provisions of the AAT Act, affording the power of review, and to the more specific provisions of the Migration Act, defining the characteristics of the decision that is subject to review. Only when all of the relevant features of the two inter-related statutes are understood can a correct decision be arrived at as to the ambit of the review in question and the manner in which it should be conducted.

[26] The starting point is a recognition that the Parliament has not spelt out in explicit terms an answer to the first question in this appeal. There is nothing in s 43 of the AAT Act to indicate whether, “[f]or the purpose of reviewing a decision”, the Tribunal is to have regard to the facts and circumstances at the time the “decision under review” was made or at the time of the Tribunal’s making of a “decision in writing”. It is this silence that necessitates examination of the inter-related legislation relevant to the particular case. The inter-relationship determines the character of the “decision” that is under review and the “powers and discretions” that the Tribunal is to exercise pursuant to s 43(1) of the AAT Act.” 21

[25] His Honour then considered the legislation which gave rise to the Tribunal, 22 before making the following observations:

“[43] Nature of the decision under review: Fourthly, although the foregoing considerations lead to a conclusion that the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision (61), the fact that the review contemplated by s 43 of the AAT Act is one addressed to a “decision”, inferentially arising under a different federal enactment, makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review.

[44] Sometimes, it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events. If, for example, under federal legislation, a pension is payable at fortnightly rests, by reference to particular qualifications that may themselves alter over time, a “review” of an administrative “decision” to grant or refuse such a pension, by reference to statutory qualifications, may necessarily be limited to the facts at the particular time of the decision.” 23

[26] And further:

“[46] There is thus a general approach deriving in particular from the statutory function of substituting one administrative decision for another. Nevertheless, the particular nature of the “decision” in question may sometimes, exceptionally, confine the Tribunal’s attention to the state of the evidence as at a particular time (68).” 24

[27] Hayne and Heydon JJ similarly reviewed the relevant legislation. They observed:

“[98] It has long been established (99) that:

“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.” (Emphasis added.)

And MARA accepted in argument in this Court that in conducting its review the Tribunal was not limited to the record that was before MARA (100). It submitted, however, that the Tribunal had to consider the circumstances “as appear from the record before it as they existed at the time of the decision under review”.” 25

[28] Their Honours continued, to state:

“[99] Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.” 26

[29] They noted that there was nothing in the Migration Act which determined the time at which any review must be conducted and that a proper construction of the Migration Act required that the assessment of a person under that Act be made in current terms.

[30] Kiefel J also observed:

“[132] The nature of the review conducted by the Tribunal depends upon the terms of the statute conferring the right, rather than upon the identification of it as an administrative authority entrusted with a particular type of function (131). The jurisdiction of the Tribunal, a statutory tribunal, depends upon there having been a decision made which it is authorised to review (132). Section 25 of the AAT Act, together with s 306 of the Migration Act, provides that authority with respect to a decision under s 303(1) of the Migration Act. Section 25(4) of the AAT Act limits the Tribunal’s powers to a review of that decision.” 27

[31] Having considered the legislative structure her Honour then addressed the Tribunal’s capacity to consider all of the material available to it rather than being limited to the material before the initial decision-maker. She then stated:

“[146] The question which here arose for the Authority under s 303(1), which it answered, was whether it should exercise its powers, under paras (a) to (c) of the sub-section, because the grounds in paras (h) and (f) were established, in particular because the appellant had breached the Code of Conduct. That part of the decision which comprises the finding, that the ground in para (h) had been made out, was referable to conduct which had occurred to a point in time. That is the nature of the finding required by the provision. It follows that the Tribunal was restricted to a consideration of events to that point and not those occurring later, in determining for itself whether there had been non-compliance with the Code. The appellant accepted as much in his submissions.” 28

[32] It appears clear to us that in key respects the decision in Shi also requires the reviewing authority to adopt a review consistent with the provisions of the relevant legislation. Absent a legislative limitation, this would generally involve consideration of all of the material put before it. Again, however, depending on the nature of the review as dictated by the terms of the legislation and the type of the decision being reviewed, there may be a requirement for a review at a particular time and for an assessment of the initial decision.

[33] The Tribunal’s decision in Kirralee dealt with an appeal against an audit review of an aged care facility. In that matter the Tribunal reviewed the relevant legislation and purpose. It noted that the initial decision imposed progressive sanctions subject to various performance requirements. After this initial decision the aged care facility proceeded to institute the required initiatives which were approved through an audit process. It then sought a review of the sanction decision. The Tribunal considered the relevant legislation in the context of the decision in Shi. It distinguished between an administrative review of the initial decision and a judicial review and stated:

“[22] A consideration of the function involved in undertaking administrative review is the first point to consider. Administrative review is, in the main, clearly distinguishable from that of judicial review. Judicial review determines whether an earlier made decision is correct in law. The decision reviewed will be either right or wrong in whole or in part. Administrative review concerns itself with whether the earlier made decision is the correct or the preferable decision. A decision is “correct” if it is in accordance the facts as presented and with the law. To the extent which this involves an application of the law it is a requirement imposed on all administrative decision makers and does not result in them undertaking a judicial function. A preferred decision is one which determines between a number of possible outcomes which is in the best interests of the parties and the community taking into account the findings of fact, the policy background to the legislation, any Ministerial or departmental directions or guidelines or other material which may give legitimate guidance. In the absence of any legislative direction as to the time a decision must be considered, it is usual for administrative decision makers to consider the circumstances as at the date the decision is reached. The Tribunal does not exercise the judicial power of the Commonwealth. It must therefore be an administrative decision maker. The Tribunal has followed the usual practise of taking all of the circumstances relevant as at the date it determines a case into account. In the absence of any legislative imperative arising in the Act there is no reason why the Tribunal should not follow the general rule. There is no direct provision in that Act establishing a date to bind or guide a decision maker. The Tribunal accepts that such a temporal limitation may arise by necessary implication having regard to the terms of an Act.

[23] The question then is does any temporal limitation arise by necessary implication when reconsideration or review is being conducted following findings of fact leading to the imposition of sanctions under the Act?

…

[25] There are two functions involved in reconsidering or reviewing a reviewable decision. The first is the fact finding. Facts occur in a time frame. An administrative decision maker can only find the facts as he/she apprehends them at a particular time. Whether a subsequent reviewer makes the same assessment of the facts will depend on what material is before him/her at the time of review. If the material on which the conclusions of fact are reached are the same or similar then it may be expected the same or similar findings would follow. This is amply demonstrated in the facts of this case where the applicant admits the findings of fact and accepts that there were 33 non compliant breaches. It would therefore be extraordinary if the delegate on reconsideration or this Tribunal on review found otherwise. It is possible some event occurring after a finding in a reviewable decision may alter or explain a fact as found in the reviewable decision. If that is the case then clearly in making the correct decision this is something which a subsequent reviewer would take into account — just as it would other facts which existed but which were not before the reviewable decision maker but which were put before the subsequent reviewer. This part of the function is not based on any consideration of a temporal limitation unless expressly imposed by an Act and none is either expressed or arises by implication in the Act.

[26] The second function is to determine whether the facts should result in a sanction being imposed and, if so, the level of the sanction. This is clearly a discretionary consideration and is distinguishable from the fact finding function. There is generally no reason as to why a decision maker cannot consider events found to exist after the reviewable decision was made which may assist the decision maker in exercising a discretion. Rather than subverting the underlying objectives of a statutory scheme a reconsideration or review should be regarded as enhancing those objectives in undertaking this function. A discretion may be exercised to increase or reduce the level of sanction imposed. There will always be a time gap between a reviewable decision being reached and its reconsideration and even a longer time between any reconsideration and review by this Tribunal. Not to take into account events occurring in those time gaps is to superimpose a technique more akin to the undertaking of judicial review than it is to undertake an administrative review function. In the absence of any express or implied temporal constraint administrative decision making is, and should be, regarded as a continuum and not something limited to a particular moment in time. Accordingly the Tribunal considers events occurring after a reviewable decision has been made but which are germane to the proper exercise of a discretion should be taken into account when that discretion is being considered by subsequent decision makers.” 29

[34] Having considered the applicable legislation the Tribunal adopted a current approach to its review. It is, however, significant that we note that in so doing it made observations about the basis upon which the initial decision had been made.

[35] The parties also referred us to a number of other decisions. Whilst we have taken all of these into account we do not think that they demonstrate the adoption of an approach which is materially different to that which was applied in both Rutjens and Shi. Notwithstanding this, we think it appropriate that we briefly remark on a recent appeal against a prohibition notice issued pursuant to the OPGGS Act. In Technip Oceania Pty Ltd v National Offshore Petroleum Safety and Environmental Management Authority T/A NOPSEMA, 30 Watson VP also reviewed the authority established by the legislation. As was the case in Rutjens the prohibition notice was current in that it related to work being undertaken at the time of the appeal. The Vice President’s conclusion is indicative of the approach he adopted to this appeal:

“[33] A range of other arguments and factors were raised in the substantial evidence before me. I have not found it necessary to deal with them in coming to my conclusion. As Inspector Barnes, and NOPSEMA, in defending the prohibition notice, did not properly consider the low probability of the risks involved, they placed inappropriate weight on the safety case submitted by Technip for the project and they effectively required a practice at variance with industry standards I am of the view that it did not conclude on reasonable grounds that the separation of the vessels for 48 hours would involve an immediate threat to the health and safety of the divers. Further, I am not satisfied that it was reasonable for the Inspector to conclude that it was reasonably necessary to issue PN 614 in order to remove the threat.” 31

[36] In this respect the decision represented a review of the initial decision but it is clear, appropriately, in our view, that it was founded on all of the information ultimately put on appeal.

[37] We have considered the provisions of the OPGGS Act in the context of these authorities in order to determine the nature of the improvement notice under that Act and the nature of an appeal against such a notice. In his decision, the Commissioner remarked on the stark options given to him in the following terms:

“[25] While I am grateful for the shorthand expressions of "current" versus "historical" approach, in my view, the focus should not be on labels but upon the legislation itself.” 32

[38] For reasons which will become clear, we consider that the purported clear dichotomy between the current assessment and the historic assessment contended by the parties before the Commission was artificial and unhelpful.

[39] The action which is under appeal was the issuing of an improvement notice. It is clear from the OPGGS Act that an improvement notice is issued when a duly qualified inspector has formed the opinion, consistent with clause 78 of schedule 3 that there is a breach or non-compliance with the OPGGS Act. That improvement notice is clearly directed at avoiding risk to employees and ensuring compliance with the operators’ safety obligations. An improvement notice does not detract from the primary safety obligation required of an operator. Clauses 77 and 78 of schedule 3 of the OPGGS Act differentiate between the basis for issuing improvement and prohibition notices in a number of respects. Firstly, clause 77(1) of schedule 3 requires an inspector to have conducted an inspection as an element in the formulation, on reasonable grounds, that a prohibition notice is necessary to remove an immediate threat. In contrast, clause 78(1) of schedule 3 establishes the power to issue an improvement notice whilst an inspection is being conducted. A failure to issue an improvement notice in accordance with these inspection requirements may give rise to an issue of jurisdiction with respect to the power to issue a notice at all, but we do not think this by itself establishes a temporal element to an appeal against such a decision.

[40] The FWC powers on appeal, set out in clause 81 of schedule 3 of the OPGGS Act, also do not disclose a specific temporal character in terms of the appeal. However, some guidance can be found in the duties of an operator under the OPGGS Act and in the appeal provision itself. Sedco advise that it seeks to appeal the original improvement notice so as to clear its name and record for the purpose of future tendering processes. The proposition that, having complied with an improvement notice, an appeal which is founded only on a current assessment must then mean that the improvement notice is revoked with effect from the date it was issued, would not appear to be consistent with an essential purpose of the OPGGS Act. Such an approach, if applied to that end, could have the effect of reducing the significance of the decision to apply an improvement notice in a circumstance where that notice has been complied with. Without implying any criticism of Sedco, the possibility that an operator against whom multiple improvement notices had been issued, but ultimately complied with, could then have those notices all removed through an appeal process must represent an inconsistency with the general duties of an operator expressed, at all times, in clause 9 of schedule 3 in the following terms:

“9   Duties of operator

General duties

(1)  The operator of a facility must take all reasonably practicable steps to ensure that:

(a) the facility is safe and without risk to the health of any person at or near the facility; and

(b) all work and other activities carried out on the facility are carried out in a manner that is safe and without risk to the health of any person at or near the facility.

Note 1:       See also clause 16.

Note 2:       Breach of a requirement under this subclause is an offence: see Division 1A.

Specific duties

(2)  The operator of a facility is taken to be subject, under subclause (1), to each of the following requirements:

(a) to take all reasonably practicable steps to provide and maintain a physical environment at the facility that is safe and without risk to health;

(b) to take all reasonably practicable steps to provide and maintain adequate facilities for the welfare of all members of the workforce at the facility;

(c)  to take all reasonably practicable steps to ensure that any plant, equipment, materials and substances at the facility are safe and without risk to health;

(d) to take all reasonably practicable steps to implement and maintain systems of work at the facility that are safe and without risk to health;

(e)  to take all reasonably practicable steps to implement and maintain appropriate procedures and equipment for the control of, and response to, emergencies at the facility;

(f)  to take all reasonably practicable steps to provide all members of the workforce, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their activities in a manner that does not adversely affect the health and safety of persons at the facility;

(g)  to take all reasonably practicable steps to monitor the health and safety of all members of the workforce and keep records of that monitoring;

(h)  to take all reasonably practicable steps to provide appropriate medical and first aid services at the facility;

(i) to take all reasonably practicable steps to develop, in consultation with:

(i) members of the workforce; and

(ii) if a member of the workforce at the facility has requested a workforce representative in relation to the member to be involved in those consultations--that workforce representative;

a policy, relating to occupational health and safety, that:

(iii) will enable the operator and the members of the workforce to cooperate effectively in promoting and developing measures to ensure the occupational health and safety of persons at the facility; and

(iv)  will provide adequate mechanisms for reviewing the effectiveness of the measures; and

(v)  provides for the making of an agreement that complies with subclauses (5) and (6).

(3)  Subclause (2) does not limit subclause (1).”

[41] The nature of an improvement notice under the OPGGS Act and the nature of the appeal contemplated by that Act establish that this capacity to affirm, vary or revoke an improvement notice must be applied with regard to the fundamental purpose of that notice. 33 Clause 78 of schedule 3 of the OPGGS Act stated, at the time the improvement notice was issued:

“78 Power to issue improvement notices

Issue of improvement notice

(1) If, in conducting an inspection, an OHS inspector believes on reasonable grounds that a person:

(a) is contravening a provision of a listed OHS law; or

(b) has contravened a provision of a listed OHS law and is likely to contravene that provision again;

the OHS inspector may issue an improvement notice, in writing, to the person (the responsible person).

(2) If the responsible person is the operator, the improvement notice may be issued to the operator by giving it to the operator’s representative at the facility.

(3) If the responsible person is an employer (other than the operator) of members of the workforce, but it is not practicable to give the notice to that employer:

(a) the improvement notice may be issued to the employer by giving it to the operator’s representative at the facility; and

(b) if the notice is so issued—the operator must ensure that a copy of the notice is given to the employer as soon as practicable afterwards.

Matters to be specified in notice

(4) The notice must:

(a) specify the contravention that the OHS inspector believes is occurring or is likely to occur, and set out the reasons for that belief; and

(b) specify a period within which the responsible person is to take the action necessary to prevent any further contravention or to prevent the likely contravention, as the case may be.

(5) The period specified in the notice must be reasonable.

(6) The notice may specify action that the responsible person is to take during the period specified in the notice.

Extension of period

(7) If the OHS inspector believes on reasonable grounds that it is appropriate to do so, the OHS inspector may, in writing and before the end of the period, extend the period specified in the notice.

Duty of responsible person

(8) The responsible person must ensure that the notice is complied with to the extent that it relates to any matter over which the person has control.

(9) A person commits an offence if:

(a) the person is subject to a requirement under subclause (8); and

(b) the person omits to do an act; and

(c) the omission breaches the requirement.

Penalty: 100 penalty units.

Notification of operator’s representative

(10) If an improvement notice is issued to an employer (other than the operator) of members of the workforce in circumstances other than the circumstance referred to in subclause (3), the employer must immediately ensure that a copy of the notice is given to the operator’s representative at the facility.

Notification of health and safety representative etc.

(11) If a notice is issued to the operator or to an employer (other than the operator) of members of the workforce, the operator’s representative at the facility must:

(a) give a copy of the notice to each health and safety representative for a designated work group having group members performing work that is affected by the notice; and

(b) cause a copy of the notice to be displayed in a prominent place at or near each workplace at which the work is being performed.

Notification of employer, owner etc.

(12) Upon issuing a notice, the OHS inspector must give a copy of the notice to:

(a) if the notice is:

(i) given to a member of the workforce who is an employee; and

(ii) in connection with work performed by the employee;

the employer of that employee; and

(b) if the notice relates to any workplace, plant, substance or thing that is owned by a person other than:

(i) a responsible person; or

(ii) a person who is an employer referred to in paragraph (a);

that owner; and

(c) if the notice is issued to a person who owns any workplace, plant, substance or thing, because of which a contravention of a listed OHS law has occurred or is likely to occur:

(i) the operator of the facility; and

(ii) if the employer of employees who work in that workplace or who use that plant, substance or thing is a person other than the operator—that employer.”

[42] The adoption of an exclusively contemporary approach to the review of improvement notices under the OPGGS Act creates the very real potential for notices which were validly and appropriately issued at a given point in time and which consequently identified potential safety failings, to be revoked as if they had not been issued without good reason. It may be entirely appropriate that the removal of the safety risk then properly requires the revocation of the improvement notice but, absent some assessment of the circumstances under which that notice was issued, an exclusively contemporary approach represents an incomplete and, in historic terms, a potentially misleading outcome in the case of improvement notice, of this kind.

[43] A further factor derives from clause 78(4), (5) and (6) of schedule 3 of the OPGGS Act which establishes the term of an improvement notice. If the notice is complied with during its term, the improvement notice effectively ceases to have effect. In this case there is no dispute that Sedco complied with the notice and consequently, no dispute that, if the appeal reviews the circumstances only in current day terms, the improvement notice must be revoked. Consequently, any such review, undertaken on a strictly contemporary basis, must produce the same outcome. In effect, once an improvement notice has been complied with, an appeal against it must focus on whether or not it should have been instituted in the first instance. In contrast, an appeal against an improvement notice, or, for that matter a prohibition notice which is current under the OPGGS Act could result in a decision to revoke, alter or uphold the particular notice, based on the circumstances applicable at the time of that appeal. In this respect it is important to note that the decision in Rutjens was an appeal against a then current prohibition notice.

[44] Consequently, whilst the proper application of the approach in Rutjens and Shi generally requires the FWC to reach a conclusion based on the circumstances applicable at the time it conducts its assessment of the appeal, we think it is incumbent on the FWC to review the circumstances under which the initial improvement notice was issued. In Rutjens, the Full Bench stated:

“The conclusions reached by the primary decision-maker in this regard will be relevant to the determination of the issue before the Commission but they are not decisive. The task of the Commission on appeal is to make its own decision, in place of the investigator, on the basis of the evidence and material before the Commission. There is no presumption that the investigator’s decision is correct.” 34

[45] In the circumstances here, a review based solely on a current assessment is at risk of simply being a device to expunge a notice. We think the primary issue which the Commissioner should have had put before him was to determine whether, based upon the material now before the Commission, the decision to issue the improvement notice was appropriate. This involves a consideration of whether Sedco was contravening clause 9(2)(e) of schedule 3 of the OPGGS Act.

[46] Further, a strictly contemporary approach may lead to the inevitable conclusion that there would never be any value in granting an appeal because the notice no longer had any work to do. This would also have the effect of defeating the very notion of an appeal on merit as comprehended by that Act.

Disposition of the appeal before us

[47] In this matter the parties requested that the Commissioner decide between an historical or current approach. For the reasons we have outlined we think that such a simple election misrepresents the nature of the FWC’s task under the OPGGS Act. Further, whilst that task will generally involve an assessment of the circumstances at the time of the review, where the notice being appealed against has already expired, any such appeal should be primarily directed at the circumstances which prevailed at the time the notice was issued. This approach is required because a strictly contemporary approach must lead to a predetermined outcome which is not consistent with the scheme of the OPGGS Act.

[48] In approaching the task required by the OPGGS Act, additional material that sheds light on whether the notice should have been issued at that time may be received and considered in an appeal. This is an appropriate form of de novo hearing in a matter such as this.

[49] Further, whilst the primary issue to be determined by the FWC is whether the improvement notice should have been issued at that time, it may also, in appropriate circumstances, be necessary for the FWC to determine whether an improvement notice should apply at the time it makes a decision. This arises because of the myriad of circumstances in which a review of an improvement notice may be sought. This includes where the practical context in which the notice has been issued has significantly changed, such as in this case. In such cases, the ultimate disposition of the appeal might well require a consideration of the present circumstances.

[50] This conclusion means that, whilst we agree that the Commissioner correctly identified the major issue to be determined in the appeal, his decision did not fully take into account the extent to which a contemporary assessment of the matter may lead to a decision to review the improvement notice as part of its ultimate disposition. Whilst we have concluded that this reflects the manner of the issue put to him to determine, we are unable to agree with the entirety of his conclusion. Further, we think it important that the approach to an appeal of this nature is founded on temporal considerations consistent with the relevant legislation and this raises matters of public interest. 35 We have decided on this basis to grant permission to appeal.

[51] In this respect we think it is open to the FWC to decide if an improvement notice was validly (or invalidly) issued at the time, based upon all of the materials that are before the FWC on the appeal, and to determine whether the notice should be revoked or varied as the circumstances then require. In so far as the Commissioner’s conclusion precluded the FWC from reaching a contemporary view about an improvement notice, having assessed its historical appropriateness, we think this reflects error.

[52] We uphold the appeal and refer the application back to the Commissioner to determine in accordance with this decision.

Appearances:

G Archer SC and T Martin for the Applicant.

M Ritter SC and T Ling for the Respondent.

Hearing details:

2016.

Perth:

25 February 2016.

 1   Sedco Forex International Inc v National Offshore Petroleum Safety and Environmental Management Authority T/A NOPSEMA [2015] FWC 7239.

 2   Sedco Forex International Inc. v National Offshore Petroleum Safety and Environmental Safety Authority T/A NOPSEMA [2016] FWC 761.

 3   Ibid.

 4   [2015] FWC 7239.

 5   (2008) 235 CLR 286.

 6   Sedco Forex International Inc v National Offshore Petroleum Safety and Environmental Management Authority T/A NOPSEMA [2015] FWC 7239.

 7   Ibid.

 8   (2008) 235 CLR 286.

 9   (1996) 66 IR 237.

 10   [2009] AATA 840.

 11   [1990] HCA 36.

 12   [2016] FWC 495.

 13   Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd (2004) 138 FCR 428; Hallett v City of Port Phillip (2015) 208 LGERA 204.

 14   (1996) 66 IR 237, 242-48.

 15   Ibid 244.

 16   Ibid 243.

 17   Ibid 244.

 18   Ibid 245.

 19   Ibid 247.

 20   (2008) 235 CLR 286, 290 [4].

 21   Ibid 295.

 22   Ibid 297 [31]-[40].

 23   Ibid 300 (citations omitted).

 24   Ibid 301 (citations omitted).

 25   Ibid, 314 (citations omitted).

 26   Ibid 315.

 27   Ibid 324 (citations omitted).

 28   Ibid 329.

 29   [2009] AATA 840.

 30   [2016] FWC 495.

 31   Ibid.

 32   Sedco Forex International Inc v National Offshore Petroleum Safety and Environmental Management Authority T/A NOPSEMA [2015] FWC 7239.

 33   Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) sch 3, cl 81.

 34   (1996) 66 IR 237, 247.

 35   GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343 [26]-[27].

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