FEDERAL COURT OF AUSTRALIA
Apache Northwest Pty Ltd (ABN 58 009 140 854) v Agostini [2009] FCA 534
Held: It could not be said that the provision of the s 63 information was for the purposes of the 1969 State Act.
Judiciary Act 1903 (Cth) s 39B(1)
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 56, 59, 66, 70, 646, 646(e)
Acts Amendment (Petroleum) Act 1990 (WA) Pt III
Petroleum Pipelines Act 1969 (WA) ss 4, 4(4), 6, 11, 12, 21, 24, 25, 35, 37, 41, 62, 63, 64, 65, 67
Petroleum Submerged Lands Pipelines Regulations of 2007 regs 23, 44
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
Fencott v Muller (1983) 152 CLR 570
Johns v Australian Securities Commission (1993) 178 CLR 408
Katsuno v The Queen (1999) 199 CLR 40
Landsal Pty Ltd (in liq) v Rei Building Society (now The Co-operative Building Society of SA) (1993) 113 ALR 643
Mandurah Enterprises Pty Ltd -V- Western Australian Planning Commission [2008] WASCA 211
Marcel v Commissioner of Police (1992) Ch 225
Mills v Meeking (1990) 169 CLR 214
Morris v Director of the Serious Fraud Office (1993) 3 WLR 1
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Pileggi v Australian Sports Drug Agency (2004) 138 FCR 107
Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495
TVW Enterprises Ltd v. Duffy, M.J. & Ors [1985] FCA 109
WAD 67 of 2009
MCKERRACHER J
22 MAY 2009
PERTH
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY | WAD 67 of 2009 |
| APACHE NORTHWEST PTY LTD (ABN 58 009 140 854) AND APACHE ENERGY LTD (ABN 39 009 301 964) Applicants
|
| AND: | DAVID AGOSTINI AND KYM BILLS IN THEIR CAPACITY AS PANEL MEMBERS OF THE OFFSHORE PETROLEUM REGULATORY INQUIRY First Respondents
THE STATE OF WESTERN AUSTRALIA Second Respondent
|
| JUDGE: | |
| DATE OF ORDER: | 22 MAY 2009 |
| WHERE MADE: | PERTH |
THE COURT ORDERS THAT:
1. The answer to the preliminary question is no.
2. I will hear the parties in relation to further or other relief.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY | WAD 67 of 2009 |
| BETWEEN: | APACHE NORTHWEST PTY LTD (ABN 58 009 140 854) AND APACHE ENERGY LTD (ABN 39 009 301 964) Applicants
|
| AND: | DAVID AGOSTINI AND KYM BILLS IN THEIR CAPACITY AS PANEL MEMBERS OF THE OFFSHORE PETROLEUM REGULATORY INQUIRY First Respondents
THE STATE OF WESTERN AUSTRALIA Second Respondent
|
| JUDGE: | MCKERRACHER J |
| DATE: | 22 MAY 2009 |
| PLACE: | PERTH |
REASONS FOR JUDGMENT
INTRODUCTION
1 On 3 June 2008 a series of gas explosions occurred at Varanus Island off the North West coast of Western Australia (the Varanus Island Incident). Pipelines and production facilities at Varanus Island were then and still are conducted by the applicants (Apache). On 9 July 2008 the second respondent (the State) announced an investigation into the Varanus Island Incident.
2 Following the State’s announcement, on 21 July 2008, the first of a series of notices was given to Apache under s 63 of the Petroleum Pipelines Act 1969 (WA) (the 1969 State Act). Documents were sought. Apache complied with that notice and several subsequent notices. A substantial body of information was supplied by such documents.
3 Earlier this year the Commonwealth Government, together with the State announced the final form of a further inquiry (the 2009 Inquiry). In March and April 2009, apparently without consent or approval of Apache, the State provided to the first respondents (the Panel) for the purposes of the 2009 Inquiry, the information which had been provided (under compulsion) by Apache to State inspectors who had been appointed under s 62 of the 1969 State Act and who had issued the various s 63 notices (the s 63 information).
4 The 2009 Inquiry had no power to compel the production of documents.
5 The Panel were not, at the time, State inspectors.
6 Apache complain that the State’s release to the Panel of the s 63 information was unauthorised. The information was provided by Apache to the State only ‘for the purposes of the 1969 State Act’.
7 Apache contends that the purposes of the 2009 Inquiry have always gone well beyond the purposes of the 1969 State Act both as to its subject matter and as to the intended ultimate recipients of its reports. Those reports will, in part, rely on the s 63 information. The respondents contend otherwise.
JURISDICTION
8 By Apaches’ application, an injunction is sought against both first respondents to restrain them from dealing with the s 63 information. Mr Kym Bills as an officer of the Commonwealth (see [17] and [19] below). There is no dispute as to the jurisdiction of the Court. However, I am also satisfied (as I must be) that the Court has jurisdiction to hear the entire matter as a consequence of s 39B(1) of the Judiciary Act and the Court’s accrued jurisdiction in relation to the common sub-stratum of facts giving rise to the single justiciable controversy: Fencott v Muller (1983) 152 CLR 570; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 585; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457.
PRELIMINARY ISSUES – THE PRINCIPLES
9 There is, at this stage, a single issue. Apache accepts that if the single issue is not determined in its favour, the proceeding must be dismissed. If the issue is determined in its favour, then there can be further consideration of the appropriate relief, if any.
10 I am satisfied that this is an appropriate proceeding in which the intended preliminary question may be determined. The facts are agreed. If the issue were resolved against Apache, it would be fully determinative.
11 Provision is made under O 29 r 2 of the Federal Court Rules for the Court to order that the decision of any question separately from any other question be determined, whether before, at or after any trial. The objective of making such an order will always be to save time and costs to the parties so long as the interests of justice are satisfied. As Toohey J observed in TVW Enterprises Ltd v. Duffy, M.J. & Ors [1985] FCA 109 an order under this rule provides:
… a useful procedure in certain cases though its usefulness depends upon the obtaining of answers which are likely to make a substantive hearing unnecessary, at least if the questions are answered in a particular way. The decision ultimately is one for the Court though naturally it will have regard to the attitude of the parties.
12 See also Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 at [7]; Landsal Pty Ltd (in liq) v Rei Building Society (now The Co-operative Building Society of SA) (1993) 113 ALR 643 at 647; CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 per Kirby P at 607; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [50].
THE QUESTION POSED
13 The single issue on which the Court has been asked to urgently decide is:
Whether the disclosure by officers of the State to the Panel, for the purposes of the 2009 Inquiry by the Panel, of documents provided to officers of the State by Apache under notices issued pursuant to s 63 of the 1969 State Act compelling production of the documents, was for the purposes of the 1969 State Act and the Regulations within the meaning of s 63 of the 1969 State Act?
14 Section 63 of the 1969 State Act provides as follows:
63. Powers of inspectors
(1) For the purposes of this Act and the regulations, an inspector, at all reasonable times and on production of the certificate furnished to him under section 62 —
(a) may enter any licence area;
(b) may inspect and test any pipeline;
(c) may take samples of any substance being conveyed by a pipeline; and
(d) may require a licensee, or any other person who has the custody of any books, records, documents, maps or plans relating to a pipeline or proposed pipeline to produce to him those books, records, documents, maps or plans and may inspect, take extracts from and make copies of any of those books, records, documents, maps or plans.
(2) A person who is the occupier or person in charge of any building, structure or place shall provide an inspector with all reasonable facilities and assistance for the effective exercise of his powers under this section.
(3) A person shall not, without reasonable excuse, obstruct or hinder an inspector in the exercise of his powers under this section. (emphasis added)
BACKGROUND FACTS
15 Apache carries on the business of exploration, production and sale of oil and natural gas and holds numerous interests in oil and gas fields which are located in and around the North West of Western Australia, including within the Varanus Hub.
16 Apaches’ operations include:
(a) production facilities outside the coastal waters of Western Australia (being waters on the landward side of a line drawn 3 nautical miles from the base line of the territorial sea of Australia adjacent to Western Australia). Those facilities:
(i) are the subject of petroleum production licences granted under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (the 2006 Commonwealth Act); and
(ii) were prior to the commencement of the 2006 Commonwealth Act the subject of petroleum production licences under the Petroleum (Submerged Lands) Act 1967 (Cth) (the 1967 Commonwealth Act);
(b) production facilities within the coastal waters of Western Australia, which are the subject of production licenses granted under the Petroleum (Submerged Lands) Act 1982 (WA) (the 1982 State Act);
(c) pipelines connecting those production facilities to a processing plant on Varanus Island, which are the subject of:
(i) pipeline licenses granted under the 2006 Commonwealth Act (to the extent that the pipelines lie outside the coastal waters of Western Australia);
(ii) pipeline licenses granted under the 1982 State Act (to the extent that the pipelines lie within the coastal waters of Western Australia); and
(iii) a pipeline licence granted under the 1969 State Act (to the extent that the pipeline lies above the low water mark) (pipeline licence no 12 (PL 12));
(d) a processing plant on Varanus Island which is the subject of a licence granted under the 1969 State Act (PL 12); and
(e) pipelines connecting the processing plant on Varanus Island to the mainland of Australia, which are the subject of:
(i) pipeline licenses (including PL 12) granted under the 1969 State Act (to the extent that the pipelines lie above the low water mark); and
(ii) pipeline licenses granted under the 1982 State Act (to the extent that the pipelines lie within the coastal waters of Western Australia).
17 The Panel (as I have defined the first respondents) are the members of the 2009 Inquiry. Mr Bills is an ‘officer of the Commonwealth’ (see [19]) for the purposes of s 39B(1) of the Judiciary Act 1903 (Cth).
18 The Western Australian Minister for Mines and Petroleum (the State Minister) appointed Mr David Agostini as his nominated member of the 2009 Inquiry. Mr Agostini was named by the Commonwealth as specified personnel under a contract for service between the Commonwealth and Agostini Consulting Pty Ltd.
19 The Commonwealth Minister for Resources and Energy (the Commonwealth Minister) appointed Mr Bills as his nominated member of the 2009 Inquiry. Mr Bills is the Executive Director of Transport Safety Investigation at the Australian Transport Safety Bureau, within the Commonwealth Department of Infrastructure, Transport, Regional Development and Local Government.
20 The 2009 Inquiry is funded by the Commonwealth Government.
21 The State, through the Department of Mines and Petroleum (State Department) administers petroleum exploration and production in accordance with the 1969 State Act and the 1982 State Act.
22 The National Offshore Petroleum Safety Authority (NOPSA) has assisted the State by providing technical advice and services to the State pursuant to services contracts dated 6 July 2007 and 26 June 2008.
23 The conditions of pipeline licences issued under the 1969 State Act, and regulations made under the 1982 State Act and the 2006 Commonwealth Act (and, prior to its repeal, the 1967 Commonwealth Act) require Apache to have in place an approved safety case for the pipelines and facilities. Apache have prepared the Varanus Hub Safety Case, which is an integrated safety case encompassing offshore production facilities and pipelines in the Varanus Hub.
24 The Apache Safety Case for the Varanus Hub acknowledges State and Federal regulation. It provides, at 1.4:
1.4 Legislative Requirements and Regulations
Most of the facilities comprising the Varanus Hub lie in WA State waters, except John Brookes and East Spar which lie in Commonwealth waters. Therefore both WA State and Commonwealth legislation apply for the Varanus Hub.
The applicable Commonwealth regulations are:
· Schedule 7 of the Commonwealth Petroleum (Submerged Lands) Act 1967 [G4];
· Petroleum (Submerged Lands) (Management of Safety on Offshore Facilities) Regulations 1996 [G58];
· Petroleum (Submerged Lands) (Occupational Health and Safety) Regulations 1993 [G59];
· Petroleum (Submerged Lands) (Pipeline) Regulations 2001 [G60]; and
· Petroleum (Submerged Lands) (Diving Safety) Regulations 2003 [G61].
The applicable State regulations are:
· Petroleum (Submerged Lands) (Management of Safety on Offshore Facilities) Regulations 2007 [G37];
· Petroleum (Submerged Lands) (Occupational Health and Safety) Regulations 2007 [G38];
· Petroleum (Submerged Lands)(Management of Well Operations) Regulations 2006 [G39];
· Petroleum (Submerged Lands) (Pipelines) Regulations 2007 [G40]; and
· Petroleum Regulations 1987 [G41].
The Safety Case has also been prepared in line with the NOPSA Safety Case Guidelines [G5].
25 On 3 June 2008, an explosion (or more accurately a series of explosions) occurred in the area of part of the pipelines running between the Varanus Island processing facility and the mainland of Australia above the low watermark of Varanus Island, the subject of PL 12.
26 The Varanus Island Incident resulted in the temporary shut down of all of Apaches’ operations on Varanus Island, namely the production facilities and connected platforms, including gas export to the mainland.
27 Immediately following the Varanus Island Incident an investigation team began an investigation into it (the Investigation). That team included:
(a) Mr Shayne Sherman, General Manager Investigation Services Unit of the State Department, an inspector appointed on 28 February 2008 by the Director Petroleum and Royalties Division of the State Department under the 1969 State Act, the 1982 State Act, the 1967 Commonwealth Act (prior to its repeal) and the 2006 Commonwealth Act (after its enactment); and
(b) two representatives of NOPSA, namely, Mr Brian Richardson and Mr Zbigniew Lambert, who provided services under the services contracts between NOPSA and the State referred to at par 8 of the Statement.
(these persons are collectively referred to as the Investigation Team).
28 On 9 July 2008, the State established the terms of reference of the Investigation. On 17 October 2008, Mr Sherman was replaced in the Investigation Team by Mr Alic Trpcev, Acting General Manager Investigation and Enforcement Branch of the State Department, who was an inspector appointed by the Director Petroleum and Royalties Division of the State Department under s 62 of the 1969 State Act, the 1982 State Act, the 1967 Commonwealth Act (prior to its repeal) and the 2006 Commonwealth Act (after its enactment).
29 In April 2009, Mr Sherman resumed his role in the Investigation Team and on 6 April 2009, the Executive Director Petroleum and Environment Division of the State Department appointed Mr Sherman as an inspector under the 1969 State Act.
30 A sequence of notices gave rise to Apache, under compulsion, giving information to the State (the s 63 information). On 21 July 2008, Mr Sherman sent a letter to Mr Tim Wall of Apache requiring Apache to provide certain information to the State under s 63 of the 1969 State Act (the First 21 July 2008 Notice).
31 On 22 July 2008, Apache hand delivered to the State documents in response to the First 21 July 2008 Notice.
32 On 21 July 2008, Mr Sherman sent a letter to Mr Wall requiring Apache to provide certain information to the State under s 63 of the 1969 State Act (the Second 21 July 2008 Notice).
33 On 6 August 2008, Apache hand delivered to the State documents, in response to the Second 21 July 2008 Notice.
34 On 24 July 2008, Mr Sherman sent a letter to Mr Wall requiring Apache to provide certain information to the State under s 63 of the 1969 State Act (the 24 July 2008 Notice).
35 On 6 August 2008, Apache hand delivered to the State documents in response to the 24 July 2008 Notice.
36 On 11 August 2008, Mr Sherman sent a letter to Mr Wall requiring Apache to provide certain information to the State under s 63 of the 1969 State Act (the 11 August 2008 Notice).
37 On 15 August 2008, Apache provided to the State documents in response to the 11 August 2008 Notice under cover of Apaches’ letter to the State dated 15 August 2008.
38 The State produced a report into the Investigation on 7 October 2008 (the Investigation Report). It is unnecessary to repeat the contents of that Report at length. Relevantly, the executive summary to it reads as follows:
Varanus Island is situated approximately 100 km west of Karratha. Located on the island are oil and gas production facilities operated by Apache Energy Ltd. A number of facilities are located offshore in the waters surrounding Varanus Island and are connected by subsea pipelines to the production facilities on Varanus Island. Collectively, this complex is operated by Apache Energy Ltd, such that hydrocarbons are fed to the Varanus Island facilities and processed prior to export either via two sales gas pipelines to the mainland, or via a crude oil export line to transit tanker vessels.
On the afternoon of the 3 June 2008, at approximately 13:30, a series of explosions followed by fires occurred at the Apache operated facility on Varanus Island.
At the time of the event, there were 150 personnel at the Apache facility on Varanus Island and a further 16 on adjacent offshore platforms.
There were no reported injuries or fatalities as a result of the explosions and fires.
The explosions and fires were concentrated in an area adjacent to the Harriet Joint Venture (HJV) gas plant, on the NNE beach pipeline corridor, where 6 pipelines in close proximity to each other cross the beach.
The plant was shutdown, isolated and vented. All personnel at the Apache Varanus Island onshore facility were mustered and accounted for. By the evening of 3 June 2008 all personnel were evacuated except a skeleton crew of 14 persons who stayed on the island for monitoring purposes.
The fires were extinguished in the early hours of the 5 June 2008.
Apache oil and gas production related activities on the island are regulated under the Western Australian Petroleum Pipelines Act 1969, which is administered by the Western Australian Department of Industry and Resources. The department initiated an investigation into the events of the 3 June 2008. The National Offshore Petroleum Safety Authority (NOPSA) was requested by the department to assist in the conduct of its investigation of the incident and documented terms of reference for the investigation were prepared.
The investigation found that:
1. The activities on the island prior to the incident can be described as routine. The Apache production plant was being operated as normal, with only routine work being carried out. Some project construction work was being undertaken within the plant area. There is no evidence that this project work activity had any impact on, or contributed to the incident.
2. There was no evidence of any contemporaneous extrinsic activity contributing to the cause of the incident.
3. Evidence indicates that the immediate cause of the incident was the rupture of the 12” sales gas pipeline at the NNE beach crossing and that the gas released from the ruptured pipeline ignited very soon after the rupture.
4. Evidence to date indicates that the pipe was being operated at a pressure within its design envelope. The rupture occurred due to thinning of the pipe wall due to corrosion of the external surface of the pipe resulting in excessive stresses in the pipe wall.
Evidence indicates that as a consequence of the initial 12” sales gas pipeline rupture and ignition of the gas released, the adjacent Campbell / Sinbad to Varanus Island 12” infield gas pipeline also ruptured and released gas which contributed to the fire. As a result of direct or radiant heat impact from the initial ruptures and fires on the beach, the 16” sales gas pipeline and the 6” Harriet Gas Line also ruptured at the boundary of the HJV plant. In addition, part of the HJV plant was damaged.
39 The summary went on to identify indications of possible causes, some possible offences and some possible breaches of licence conditions. The only present relevance of those conclusions is in identifying the subject matter of the Investigation. In no sense does this proceeding engage the merits of any aspect of the views expressed in the Investigation Report.
40 In 2009, on 1 April, Mr Trpcev sent a letter to Mr Wall requiring Apache to provide certain information to the State under s 63 of the 1969 State Act (the 1 April 2009 Notice). On 2 April 2009, Apache provided to the State documents in response to the 1 April 2009 Notice.
41 On 9 January 2009, the Commonwealth Government and the State announced the 2009 Inquiry.
42 The Ministerial Council on Minerals and Petroleum Resources (the MCMPR) was established by the Council of Australian Governments in June 2001. It still operates. The MCMPR comprises:
(a) the Commonwealth Minister for Resources, Energy and Tourism;
(b) the State and Territory Ministers with responsibility for minerals and petroleum;
(c) the New Zealand Minister of Energy (who has observer status);
(d) the Papua New Guinean Minister for Mining (who has observer status); and
(e) the Papua New Guinean Minister for Petroleum and Energy (who has observer status).
43 The ‘scope’ and objectives of the MCMPR are as follows:
The mission of the Ministerial Council on Mineral and Petroleum Resources (MCMPR) is to contribute to the national wellbeing by promoting the progressive and sustainable development of the Australian mining, minerals and petroleum industries.
MCMPR’s objectives include:
· progressing constructive and compatible changes to the basic legislative and policy framework for the sustainable development of minerals and petroleum resources, including influencing the direction of climate change response measures;
· facilitating economically competitive development of the minerals and petroleum industries;
· improving coordination and, where appropriate, the consistency of policy regimes;
· encouraging new and expanded investment in competitive minerals and petroleum development opportunities; and
· providing an opportunity for information and policy exchange.
The Council considers issues under three broad strategic priorities: competitiveness, sustainability and Indigenous reconciliation. The competitiveness and sustainability categories concern issues which impact on the minerals and petroleum sectors’ operational capabilities, investment, safety and environment. The Indigenous reconciliation category focuses on the importance of working effectively with Indigenous communities, addressing Indigenous disadvantage, and promoting economic independence. The Council consults with the Ministerial Council on Energy on the nation’s energy needs, resources and policies.
44 In March and April 2009, without the consent of Apache, the State provided to the Panel for the purpose of the 2009 Inquiry some of the documents produced by Apache to the State in response to the s 63 notices. It intends to provide others of those documents to the Panel for that purpose.
45 The Panel was aware at the time that some documents provided to it by the State had been provided by Apache to the State pursuant to s 63 of the 1969 State Act for the purposes of that Act. The Panel was not aware at the time that other documents provided to it by the State had been provided by Apache to the State pursuant to s 63 of the 1969 State Act for the purposes of that Act. The Panel was later made aware of that fact.
46 Without the consent of Apache, the Panel has made and proposes in the future to make use of the s 63 information provided to the State pursuant to notices issued under s 63 of the 1969 State Act described above.
APPLICABLE LEGAL PRINCIPLE
47 The High Court has repeatedly held that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect (for example, see Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [11]).
48 The sole issue is whether the release of the s 63 information to the Panel is for the purposes of the 1969 State Act or Regulations. The reason this issue is central to Apaches’ complaint is because of the statement of principle articulated in Johns v Australian Securities Commission (1993) 178 CLR 408 at 424.
49 It is desirable, in my view, to focus, as did senior counsel for Apache, on the facts of Johns’case as those facts do provide at least an indication, as to circumstances in which the principle established in Johns’ case may fall for consideration. The facts in Johns were that in September 1990 the Government of Victoria appointed a Royal Commission to inquire into the affairs of the Tricontinental group of companies of which Mr Johns was, for each such company, the Managing Director. At the same time the Attorney General for Victoria gave a ministerial direction to the National Companies and Securities Commission (NCSC) to arrange for an investigation into the affairs of Tricontinental by the same Royal Commissioners. On the same day, the NCSC appointed the Royal Commissioners as inspectors to carry out the investigation. However, before the Royal Commissioners embarked on their hearing, the functions of the NCSC devolved to the Australian Securities Commission (ASC). In February of the following year, the ASC delegated to Ms Megay its powers and functions under Pt 3 of the Act pursuant to which Mr Johns was given a notice to appear for examination before Ms Megay in relation to the investigation of the activities of the Tricontinental group. Under compulsion he appeared before her on a number of occasions and answered questions. Transcripts of the hearings were then given to the Royal Commission. Ms Megay also gave written permission for the Royal Commission to use the transcripts in a public hearing. When copies of those transcripts were tendered in evidence at the public hearing, the Royal Commission made copies available to the media. In the following year, Mr Johns brought a proceeding in this Court for review of the decision of the ASC which resulted in the handing over of the transcripts to the Royal Commission and for orders against media bodies restraining further publication of them. That application was dismissed. The decision to dismiss was subsequently affirmed on appeal by a majority of a Full Court of this Court. Special leave was given to appeal to the High Court on the validity of the decision by Ms Megay to release the transcripts to the Royal Commission in circumstances which allowed the information to be published generally.
50 Brennan J (at 423-425), as his Honour then was and with whom Dawson J (at 435), Gaudron J (at 458) and McHugh J (at 467) relevantly agreed, observed:
Information is intangible. Once obtained, it can be disseminated or used without being impaired, though dissemination or use may reduce its value or the desire of those who do not have it to obtain it. Once disseminated, it can be disseminated more widely. A person to whom information is disclosed in response to an exercise of statutory power is thus in a position to disseminate or to use it in ways which are alien to the purpose for which the power was conferred. But when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself be limited by the purpose for which the power was conferred. In other words, the purpose for which a power to require disclosure of information is conferred limits the purpose for which the information disclosed can lawfully be disseminated or used. In Marcel v Commissioner of Police of the Metropolis [[1992] Ch. 225, at p 234. The Vice-Chancellor's view in this respect was affirmed on appeal: see [1992] Ch., esp. at pp. 261, 262.] Sir Nicolas Browne-Wilkinson V-C said, in reference to a statutory power conferred on police to seize documents:
"Powers conferred for one purpose cannot lawfully be used for other purposes without giving rise to an abuse of power. Hence, in the absence of express provision, the Act cannot be taken to have authorized the use and disclosure of seized documents for purposes other than police purposes."
And in Morris v Director of the Serious Fraud Office [[1993] Ch. 372, at p. 381], Sir Donald Nicholls V-C said in reference to information acquired by exercise of statutory powers:
"The compulsory powers of investigation exist to facilitate the discharge by the SFO of its statutory investigative functions. The powers conferred by s 2 are exercisable only for the purposes of an investigation under s 1. When information is obtained in exercise of those powers the SFO may use the information for those purposes and purposes reasonably incidental thereto and such other purposes as may be authorized by statute, but not otherwise. Compulsory powers are not to be regarded as encroaching more upon the rights of individuals than is fairly and reasonably necessary to achieve the purpose for which the powers were created. That is to be taken as the intention of Parliament, unless the contrary is clearly apparent."
A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed. The statute imposes on the person who obtains information in exercise of the power a duty not to disclose the information obtained except for that purpose. If it were otherwise, the definition of the particular purpose would impose no limit on the use or disclosure of the information. The person obtaining information in exercise of such a statutory power must therefore treat the information obtained as confidential whether or not the information is otherwise of a confidential nature. Where and so far as a duty of non-disclosure or non-use is imposed by the statute, the duty is closely analogous to a duty imposed by equity on a person who receives information of a confidential nature in circumstances importing a duty of confidence.
A person who obtains information in exercise of the powers conferred by s 19 of the Act comes under a statutory duty of confidence with respect to the information thus obtained. It is therefore important to ascertain the purposes for which such information can be legitimately used or disclosed. In the first place, the power conferred by s 19 of the Act to require a person to appear for examination and to answer questions is conferred for the purpose of obtaining "information relevant to a matter that [the ASC] is investigating, or is to investigate, under Division 1" of Pt 3 of the Act. So the information acquired by conducting a s 19 examination may be used for the purposes of such an investigation. In addition, s 127(3) authorizes disclosure of otherwise confidential information by, inter alia, the members and staff members of the ASC for the purposes of performing the official functions of the person making the disclosure. As investigations are but some of the functions of the ASC (most of which are prescribed by Pt 2 of the Act) the Act contemplates that information acquired on examinations under s 19 may be used and disclosed for the purpose of the performance or exercise of any of the functions of the ASC Then, certain purposes other than the performance of the functions of the ASC are approved by sub-ss (2) and (4) of s 127. Information obtained in exercise of the powers conferred by s 19 may therefore be used or disclosed for the purpose of the performance of any of the functions of the ASC and for any of the purposes mentioned in sub-ss (2) and (4) of s 127. But for no other purpose.
The purposes for which information may legitimately be used or disclosed are one thing; the means by which information is used or disclosed are another. Section 127 of the Act relates to purposes; s 25(3) relates to means. The two provisions must be read together. Section 25(3) cannot be read as conferring a broad discretionary power to disseminate information obtained in exercise of powers conferred by s 19 [I am, with respect, unable to accept a view of s 25(3) as broad as that embraced by the Full Court of the Supreme Court of Western Australia in interpreting s 298(8) of the Companies (Western Australia) Code in Wardley Australia Ltd. v. Attorney-General (W.A.) (1991), 5 W.A.R 453, at p. 468.]. The power conferred by s 25(3) must be exercised consistently with the provisions of s 127 so that the giving to a person of "a copy of a written record of the examination ... together with a copy of any related book" under s 25(3) is authorized only if it be for a purpose consistent with s 127. Section 25(3) can be read as authorizing the ASC to give copies of a transcript to another person in cases in which the disclosure of the information contained therein is authorized by s 127(2), (3) or (4). Or s 127(2), (3) or (4) can be read as themselves authorizing the employment of appropriate means (including the giving of transcripts) by which to disclose the information that can legitimately be disclosed in accordance with those sub-sections. It matters not whether those provisions be read in one way or the other. The extent of the authority to give a transcript is the same: it is a limited authority. (emphasis added)
51 The language of Brennan J is deliberate. His Honour describes dissemination of information ‘in ways which are alien to the purpose for which the power was conferred’. His Honour stresses that when a power to require a disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself be limited by the purpose for which the power was conferred. (emphasis added) In Katsuno v The Queen (1999) 199 CLR 40 (at [24]) the High Court approved of Brennan J’s analysis in Johns 178 CLR 408 (at 424). It held that the practice of the Chief Commissioner of supplying details or information obtained as a result of inquiries made pursuant to s 21(3) of the Juries Act to a prosecutor (as happened in that case), or to anyone else other than the Sheriff prior to the delivery of a copy of the panel in open court was unlawful and, if necessary, its continuance could be restrained by injunction: see also Gleeson CJ at [2], McHugh J at [54] and Kirby J at [110].
52 The decisions in Marcel v Commissioner of Police (1992) Ch 225 and the Vice Chancellor, Sir Donald Nicholls in Morris v Director of the Serious Fraud Office (1993) 3 WLR 1 each involved purposes which were narrower than that presently under consideration. In the case of Morris, as in the case of Johns, the information which was compulsorily obtained was to be used only for the statutory investigative functions either existing or intended and for purposes reasonably incidental thereto.
53 In my view, a question arises as to whether the broader purpose expressed in s 63, namely that of the 1969 State Act opens the scope for greater usage of the s 63 information.
54 In considering the purposes, Apache stresses that the powers under s 63 of the 1969 State Act are vested in an inspector and not in any other person. (By s 4(1) of the 1969 State Act, unless the contrary intention appears ‘inspector’ means ‘a person appointed an inspector under this Act’). The powers of inspectors so appointed to compel production of documents are limited to those powers expressed in s 63 of the 1969 State Act. In the Second Reading Speech of the 1969 State Act it was explained that the inspectors would be invested with the usual powers which are given to petroleum inspectors, that is, they would have ‘access to relevant areas in order to inspect and test equipment and to inspect and take extracts from relevant documents’.
55 However, the respondents point out and, in my view correctly, that the role of inspectors under the 1969 State Act and Regulations is quite limited. Certainly in the context of s 63, the role is limited to gathering information. The power conferred under s 63 is constrained only by the power being exercised ‘for the purposes of this Act and the Regulations’. Those purposes are broad. If it be Apaches’ argument that the purposes, where referred to in s 63, are confined to the inspectors’ own purposes at the time of service of a notice, then, in my view, that argument can only be correct if the inspectors’ purposes are understood to be the general purposes of the Act and Regulations. The powers and functions conferred in many of the provisions of the 1969 State Act go well beyond those that may be exercised by an inspector. There would be little point in gathering the information if it could not be put to the purposes of the Act.
APPROACH TO THE QUESTION
56 I have attempted in these reasons to identify the purposes of the 1969 State Act and Regulations in order to ascertain whether the release of the information to the 2009 Inquiry was done for the purposes of the 1969 State Act and Regulations. In doing so, it has also been necessary to examine the purposes of the 2009 Inquiry.
57 The 1969 State Act is one of many which provide that a power may be exercised ‘for the purposes of this Act’. Yet it does not, in terms, spell out the ‘purposes of the Act’. Some statutes now spell out in express terms their purposes. This is particularly helpful when a provision of the Act is said to be applicable for the purposes of the Act. Once the purpose can be ascertained, there are other clear rules of construction such as the rule from Mills v Meeking (1990) 169 CLR 214 per Dawson J that a literal approach will give way to a construction which would promote the purpose of the Act over one which would not.
58 By force of statute, it is now generally accepted that the purposive approach has universal application. It is not confined to situations of ambiguity or inconsistency.
59 Courts have had for many years to attempt to identify the purpose of a statute. Of the tools used in such statutory interpretation (consideration of text, structure and context), it is now accepted that context is the first matter to be considered. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 in a joint judgment, the Court said:
the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as [the reports of law reform bodies], one may discern the statute was intended to remedy.
60 The respondents rely heavily on context in their arguments concerning the need to administer the 1969 State Act so that it may interact with other legislative instruments and regulatory frameworks.
61 Although the context in which the purposes of the 1969 State Act are to be construed include the interactive legislative and regulatory matrix with which the 1969 State Act must work, nowhere in the Act is there express reference of the purpose or intention that functions exercised for the purpose of the 1969 State Act are also intended to be functions for the purpose of the other elements of the legislative and regulatory matrix in which the 1969 State Act operates. As I have observed elsewhere in these reasons, that stands to some degree, in contrast to the provisions of the 2006 Commonwealth Act where some such recognition does appear.
62 Professor RS Geddes, co-author of Pearce and Geddes, Statutory Interpretation in Australia (5th ed, 2001) Chs 2 and 3 in an article in (2005) 2 UNELJ “Purpose and Context in Statutory Interpretation” said (footnotes omitted):
Since the introduction of ss 15AA and 15AB of the Acts Interpretation Act 1901 (Cth) and the provisions based on them in the states and territories, the courts have had a great deal to say about how they operate. An attempt has been made elsewhere to gather some of these statements together and to evaluate them.
Here I have limited myself to some recent cases considering the underlying central question associated with s 15AA and equivalent provisions; the identification of purpose or object.
Under s 15AA and its equivalents, in the interpretation of a provision of an Act the interpreter must attempt to discover the purpose or object underlying the Act and, if possible, adopt an interpretation furthering that purpose or object. But how the purpose is to be identified is not spelt out. Some legislation contains a statement of its purpose (or purposes). Apart from that, the legislatures have made little contribution to the question of how to define the purpose or object relevantly. General statements contained in legislation as to its purpose or objects need to be treated with caution. As Brennan CJ and McHugh J observed in IW v City of Perth [(1997) 191 CLR 1, 12] such statements should be understood by reference to other provisions contained in the legislation. Just as it makes no sense to interpret a provision without regard to the rest of the enactment, it is sometimes apparent that a general statement of purpose must be tempered by the contents of other provisions in the enactment. In other words, like any other provision in legislation, a purpose or objects clause must be interpreted in its context. (emphasis added)
63 After examining several cases, the learned author continued:
Most statutes do not contain a purpose or objects clause. In these instances the challenge is to deduce the relevant purpose of the provision being interpreted from its context, using that term in its widest sense, and without an explicit starting-point.
64 After considering the decision of Kenny J in Pileggi v Australian Sports Drug Agency (2004) 138 FCR 107, the author concluded (relevantly to this issue):
(1) Legislation is to be interpreted with reference to its underlying purpose or object and its context, using that term in its broadest sense, including extrinsic material.
(2) The task is informed by the Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB and equivalent provisions, together with the statements of principle identified as the ‘modern approach to statutory interpretation’ in CIC Insurance.
(3) This means that both the underlying purpose or object and the context are to be considered initially, rather than after it has been concluded that the provision in question is ambiguous or unclear.
(4) A statement of purpose or object, as with any other provision contained in legislation, is to be interpreted in its context.
(5) Presumptions of interpretation are to be used, but they are necessarily overridden by interpretations properly arrived at by reference to underlying purpose or object and context.
65 In my view, the question posed by the parties must be answered against two important background features. The first is to recognise the significant breadth of apparent purposes in the 1969 State Act; notwithstanding that it does not expressly recognise the interaction of the State’s role under the 1969 State Act with the surrounding statutory and regulatory regime. Those other statutes regulate usage of the same pipeline or pipelines owned by the same company in the same broad geographic location.
66 The second significant feature is that on any reading of the terms of reference of the 2009 Inquiry, they appear to go beyond (perhaps well beyond) the immediate purposes of the 1969 State Act.
TERMS OF REFERENCE OF THE 2009 INQUIRY
67 It is central to resolution of the dispute to identify the terms of reference and thus the purposes of the 2009 Inquiry. The terms of reference and the context in which they were announced are as follows:
Independent inquiry into the occupational health and safety (OHS) and integrity regulation for upstream petroleum operations with a focus on the incident at the facilities operated by Apache Energy Ltd on Varanus Island
Introduction
The Commonwealth and Western Australian Governments will jointly conduct an independent Inquiry into the effectiveness of regulation for upstream petroleum operations with a focus on the incident at Apache Energy Ltd's facilities on Varanus Island.
In Western Australian waters and islands, (including Commonwealth and State waters) the occupational health and safety (OHS) and the integrity of operations and facilities for Australia's upstream petroleum industry is regulated by the Department of Industry and Resources (DoIR) and/or the National Offshore Petroleum Safety Authority (NOPSA), depending on jurisdiction.
Specifically, Apache Energy Ltd's operations and facilities on Varanus Island are regulated under Pipeline License PL12 which is granted under the Western Australian Petroleum Pipelines Act 1969. Regulatory responsibility for OHS and integrity of the operation and facilities on Varanus Island lies with DoIR. NOPSA provides technical advice and contractor services to DoIR under a "Service Contract".
NOPSA, established in 2005, is a Commonwealth statutory agency responsible for occupational health and safety of offshore petroleum operations in Commonwealth waters (and in State and Territory designated coastal waters, where power has been conferred to it). NOPSA regulates the health and safety provisions of the Offshore Petroleum Act 2006 in Commonwealth waters and the Western Australian Petroleum (Submerged Lands) Act of 1982 in designated coastal waters. This covers offshore platforms and pipelines that feed into the Varanus Island hub.
OHS and integrity for the onshore (mainland) portions of the gas export pipelines are the responsibility of DoIR. The Western Australian Department of Consumer and Employment Protection (DoCEP) provides regulatory services to DoIR for these portions of the pipelines under a "Memorandum of Understanding".
Background
On 3 June 2008, a series of explosions followed by fires occurred at the Apache Energy Ltd operated facility on Varanus Island. There were no reported injuries or fatalities as a result of the explosions and fires.
Following the incident on Varanus Island, DoIR as the regulator requested NOPSA to undertake an investigation into the incident. The Investigation was conducted jointly by DoIR and NOPSA in accordance with an agreed Terms of Reference.
On 7 October a report on “The Findings of the Investigation into the Pipe Rupture and Fire Incident on 3 June 2008 at the Facilities Operated by Apache Energy Ltd on Varanus Island was provided to the Western Australian Minister for Mines and Petroleum and the Commonwealth Minister for Resources and Energy. The investigation was jointly conducted by DoIR and NOPSA, and the report was prepared by NOPSA.
The report focused on the technical causes of the incident and not the regulatory systems or the actions of the regulators. It also identified that Apache Energy Ltd, as the operator of the facilities, and its co-licensees, may have committed offences under Western Australian legislation and its pipeline licences. Further investigations are being undertaken by DoIR to establish what, if any, enforcement action is warranted.
Scope of the Inquiry
The Inquiry will consider the effectiveness of the regulatory regime for OHS and integrity that applied to Apache Energy Ltd's operations and facilities at the Varanus Island and the role of DoIR, NOPSA and DoCEP.
It is anticipated that the proposed inquiry would encompass the Western Australian Petroleum Pipelines Act 1969, and interaction with other legislative instruments including the Western Australian Petroleum (Submerged Lands) Act 1982 and the Commonwealth Offshore Petroleum Act 2006.
Structure of the Inquiry
Due to the complexity of the regulatory regime, it is proposed that the inquiry will be conducted by a two-member Expert Panel that has the following areas of expertise:
· Experience in the concept and theory of safety regulation, implementation and/or investigation; and
· Petroleum/pipeline safety and/or major hazard facility experience in Australia and/or in international locations.
Appointments to the Expert Panel will be undertaken jointly by the Western Australian Minister for Mines and Petroleum and the Commonwealth Minister for Resources and Energy.
Project management, office accommodation and corporate services for the Expert Panel and executive and secretarial support staff will be provided by the Western Australia and the Commonwealth Governments.
The Panel will report within three months of the commencement of the inquiry and costs will be capped at $1,000,000. Funding for the Inquiry will be met by the Commonwealth Government.
Inquiry Process
It is envisaged that the inquiry will be undertaken in a series of stages incorporating a desk-top review of existing documentation, interviews with officials and company representatives, and as a final deliverable, a report with recommendations, to both the Western Australian Minister for Mines and Petroleum and Commonwealth Minister for Resources and Energy.
Both Ministers will refer the report and recommendations to the Ministerial Council on Mineral and Petroleum Resources (MCMPR) for its consideration.
Terms of Reference
With respect to the Varanus Island incident, the Inquiry will:
· Review safety-related documentation that existed in the lead-up to the incident including that related to activity undertaken by the operator in accordance with safety case commitments and requirements outlined in the relevant licences for operation.
· Examine the effectiveness of NOPSA and DoIR and the arrangements underpinning the operating regime.
· Assess the adequacy of the responses from the owners/operators of the operations and facilities including an assessment of the adequacy of pipeline licence (PL12) safety obligations, safety case documentation and implementation.
· Consider options and make recommendations (if required) to improve the regulatory regime and the safety and integrity of petroleum operations and facilities, particularly integrated onshore/offshore operations and facilities in Commonwealth and Western Australian jurisdictions.
With respect to reporting, the inquiry will:
Present a report and recommendations to the Western Australian Minister for Mines and Petroleum and the Commonwealth Minister for Resources and Energy and MCMPR within three months of the commencement of the inquiry. The Ministers will then refer the report and recommendations to the Ministerial Council on Mineral and Petroleum Resources (MCMPR) for its consideration.
Addendum
Since the proposal for an independent inquiry into the occupational health and safety (OHS) and integrity regulation for upstream petroleum operations was agreed between the Commonwealth and Western Australian Governments in December 2008, two further major incidents, one of which involved a fatality, have occurred in upstream petroleum operations off Western Australia.
Both incidents involved cyclone emergencies during the period of Cyclone Billy from 15th-24th December 2008. The incidents involved integrated maritime/upstream petroleum operations on two separate vessels, the Karratha Spirit (which resulted in one fatality) and the Castoro Otto (which had a crew of 300 on board but no injuries reported).
Both incidents are currently the subject of investigations by the relevant authorities. OHS and integrity are the responsibility of the National offshore Petroleum Safety Authority (NOPSA) and the Australian Maritime Safety Authority (AMSA) depending on jurisdiction under the Commonwealth Offshore Petroleum Act 2006 and the Commonwealth Navigation Act 1912.
As was the case with the Varanus Island incident, these investigations will focus on the technical causes of the incident and not the regulatory systems or the actions of the regulators.
While the primary focus of the independent inquiry will be the effectiveness of the regulatory regime for OHS and integrity that applied to Apache Energy Ltd's operations and facilities on Varanus Island and the role of the Department of Industry and Resources (DoIR), NOPSA and the Department of Consumer and Employment Protection (DoCEP), the inquiry will, to the extent practicable in the timeframe, also consider the effectiveness of the regulatory regime for OHS and integrity that applied to the Karratha Spirit and the Castoro Otto and the role of NOPSA and AMSA. (emphasis added)
68 It will be recalled that the statutory regimes apply in:
(a) State onshore areas, under the 1969 State Act
(b) State regulated offshore waters, under the Petroleum (Submerged Lands) Act 1982 (“the 1982 State Act”) and
(c) Commonwealth offshore areas, the Offshore Petroleum and Greenhouse Gas Storage Act 2006 – (“the 2006 Cth Act”).
69 The terms of reference of the 2009 Inquiry itself indicate, the 2009 Inquiry is to consider the effectiveness of the ‘regulatory regimes for occupational health and safety and integrity that apply to Apaches’ operation and facilities at the Varanus Island and the role of various departments’. In considering specifically the regulatory regime from the State’s perspective, the provisions of the 1969 State Act involved:
(a) The State Minister making a direction under s 41 of the 1969 State Act in respect of matters about which regulations may be made under the Act, including:
(i) the construction, maintenance and operations of pipelines and the safety measures to be taken in respect thereof (s 67(1)(a) of the 1969 State Act);
(ii) the inspection of pipelines (s 67(1)(b) of the 1969 State Act);
(iii) the escape of substances from a pipeline (s 67(1)(d) of the 1969 State Act); and
(iv) the prevention of damage to land used for the construction and operation of pipelines (s 67(1)(g) of the 1969 State Act);
(b) The Governor in Executive Council making or amending regulations about the above matters;
(c) The Minister declining to renew the licence under s 11 of the 1969 State Act;
(d) The Minister cancelling the licence for failure to comply with the 1969 State Act, pursuant to s 24(1)(b) of the 1969 State Act.
70 To the extent the 2009 Inquiry is inquiring into regulatory regimes for occupational health and safety and integrity that apply, the State says, correctly, that topic is very much a major part of the purposes of the 1969 State Act.
71 Apache emphasises, however, that the heading of the 2009 Inquiry as well as the first paragraph makes it clear that the 2009 Inquiry is addressing the regulation for ‘upstream’ petroleum operations. It may well be that there is a focus on the Varanus Island Incident but, as Apache observes, ‘upstream operations’ generally, takes the geographic location of the 2009 Inquiry’s work outside of the area to which the 1969 State Act applies.
72 Although none of the parties has referred to any relevant legislative definition of ‘upstream’, the dictionary definitions are as follows. The New Shorter Oxford English Dictionary (1993) defines ‘upstream’ in the oil and gas industries as being ‘at or towards the source of production; spec. At a stage in the process of extraction and production before the raw material is ready for refining’. The Macquarie Online Dictionary defines ‘upstream’ as:
adjective
--adverb 1. towards or in the higher part of a stream; against the current.
--adjective 2. situated farther up the stream.
3. moving or facing upstream.
73 What can be said about ‘upstream’ relevantly to the ambit of the 2009 Inquiry is that it is addressing regulation over (amongst other things), pipelines at locations which, like a stream, include the portion which runs back to the source.
74 ‘Upstream regulation’ at large, necessarily embraces (as the inquiry into the ship incidents makes clear) an inquiry by the Panel into geographic locations which are outside of the operational sphere of the 1969 State Act.
THE PURPOSES OF THE 1969 STATE ACT
75 The object of the 1969 State Act, apparent from its long title, is to make provision ‘relating to the construction, operation and maintenance of pipelines for the conveyance of petroleum and for purposes connected therewith’. (The definition of petroleum in s 4 embraces gas).
76 Structurally, the 1969 State Act is divided into five parts. The first deals with interpretation and the power of the Minister to make certain declarations for interpretation purposes. The second deals with licences and acquisition of land and rights over land including cancellation of licences. Part III is directed to the construction and operation of pipelines. It emphasises that a pipeline is to be constructed along the route authorised in the licence in respect of the pipeline. Part IV is directed to registration of licences and related instruments. Part V contains miscellaneous provisions including practices of which judicial notice shall be taken, the power of the Minister to delegate powers and functions, the appointment of inspectors and the powers of inspectors, the creation of certain offences and the power to make regulations.
77 Looking at the statute in more detail, there are several categories of implementation of the primary object or purpose which may be drawn from the 1969 State Act.
78 Licensing is provided for under s 6 of the 1969 State Act. There is a prohibition on constructing and operating a pipeline without a licence or pursuant to the consent of the Minister. Section 12 relates to conditions which might be imposed on a licence. It is clear from such conditions that the concern of the Act is not just safety but also with the integrity or reliability of the operation of the pipeline, that is, with economic principles in addition to safety. The intention is to ensure that pipelines for which approval has been given do in fact operate as well as the aim that they function safely. Pipelines perform an important economic function for the State as the agreed documents indicate.
79 By s 21 of the 1969 State Act, there is provision in general terms for the State Minister to give a direction to a person requiring the pipeline operator to carry the gas of or for a third party. Section 35 of the 1969 State Act creates an offence of ceasing to operate a pipeline other than in very limited circumstances. It is an indictable offence, punishable by imprisonment for five years. There are also offences of stealing from a pipeline and damaging a pipeline or permitting or suffering waste to escape from a pipeline (ss 64, 65 and 37). There is a broad regulatory making power consistent with those statutory powers (s 67).
80 The Minister has the power (s 24 of the 1969 State Act) to cancel a licence where a licensee has not complied with the conditions to which the licence is subject or has not complied with a provision of the Act or the Regulations or has not paid the relevant fees. The Minister may refuse to renew a licence (s 11). Accordingly, consideration of whether a licensee has complied with requirements imposed under that Act (or Regulations) may be required as may be any appropriate response to a failure to comply. There is also consideration required as to whether additional or alternative requirements should be imposed by or under the Act to ensure the safety or reliability of pipelines. There may be the consideration of whether any changes should be made to the Act’s administration to better provide for the safety and reliability of pipelines. This includes, as the State argues the provision of a report to the Commonwealth so that the State and Commonwealth can work towards a common goal, considering that in many instances (such as the present), the pipeline is the same pipeline or pipelines travelling over both State and Commonwealth controlled land or sea.
81 The State Minister may give directions under s 41 of the 1969 State Act as to any matter with respect to which regulations may be made. Prosecutions may be conducted either by an officer of the State or in the case of indictable offences by the State Director of Public Prosecutions.
82 The State submits that the purposes of the 1969 State Act do not necessarily exclude provision of information obtained under s 63 of that Act to the Commonwealth. According to the State, it depends on the relevant factual context. If, for example, information provided under s 63 revealed a Commonwealth offence which was totally unrelated to the business of regulating the gas pipeline, (say price-fixing) then release of that information to the Commonwealth would not be authorised. Quite to the contrary in this situation, however, the State argues the s 63 information is integral to the sharing of responsibilities by the State and the Commonwealth in respect of the same pipeline or pipelines traversing the same broad geography but regulated by three different statutes and two different governments.
83 The State contends that the 1969 State Act expressly recognises its interaction with the offshore regime in the definition of pipeline (s 4) where there is a reference to pipes or system of pipes which excludes a pipeline defined in the 1982 State Act in par (a) of the definition. However if this, as I apprehend it, is the best available example of the 1969 State Act recognising the contextual statutory framework, such that the s 63 information given by Apache was given, in effect for the purposes of all of the relevant legislative instruments, then, taken alone, in my view it falls well short of doing so.
84 There is specific power in the 1969 State Act (s 25) for the Minister at the request of a Minister of the State or a Minister of the Commonwealth to direct to a licensee to make changes in the route or position of the licensee’s pipeline. A common feature of all legislation regulating pipeline use is that the pipeline licences will describe the route that a pipeline takes so that the exercise of the power to direct a change of route would necessarily, particularly in the present case, involve the exercise of an equivalent power under the 1982 State Act but quite possibly under the 2006 Commonwealth Act. So, accordingly, changes to the regulatory requirements imposed by or under the 1969 State Act may have to take into account what happens offshore under a different legislative regime. It may, as a matter of practical reality, be necessary to communicate with persons responsible for the administration of the offshore legislation in order to determine whether or not it would be feasible to make a direction under s 25 of the 1969 State Act. Such a communication would be meaningless, it is argued, unless each of the parties had access to relevant information which could have a bearing upon the consequences of such a direction being given. Accordingly, a communication in that context, the State argues for example, to the Commonwealth Minister or to NOPSA which has administrative responsibilities under the 1982 State Act and the 2006 Commonwealth Act must be within the purposes of the 1969 State Act. Although Apache appears to disagree with this submission, in my view it appears to be correct. But even if the submission is correct, it only goes part of the way to supporting the State’s argument.
85 Although the 1969 State Act does not expressly acknowledge the role it and the State plays in the legislative and administrative matrix, it has been amended on a number occasions including by Part III of the Acts Amendment (Petroleum) Act 1990 (WA). That Act was designed to ‘rationalise the requirements of State and Federal laws for petroleum production and exploration’. That is reflected in Hansard, 2 November 1989 at pp 4201-4204 and on 3 July 1990 within pp 3121-3129, 4 July 1990 within pp 3232-3235 and 11 July 1990 within pp 3616-3617. There is little doubt that the legislative intention was and remains that the purpose of the 1969 State Act (including where that purpose is referred to in s 63), is that it be part of a broader scheme. In the case of offshore petroleum mining operations, the 1969 State Act will apply to only one component of a larger operation in one part of a pipeline running from an offshore production facility to the Western Australian mainland. The other components and other parts of the pipeline will be regulated by other State and Commonwealth legislation and the administration will be shared between Commonwealth and State authorities. These features all underlie the importance of cooperation between the respective governments, agencies and regulators. But the existence of these common features may not necessarily be sufficient to answer in the affirmative the question posed by the parties.
86 The 2006 Commonwealth Act in contrast, expressly recognises the interaction of the different responsibilities. The legislative matrix includes the joint authority established under the 2006 Commonwealth Act (s 56). The joint authority for the offshore area is constituted by the State and Commonwealth Ministers under s 59. Most of the functions under the 2006 Commonwealth Act such as the issuing of licences and cancellation of licences will be functions exercised by the joint authority. There is provision for delegation of the functions of a joint authority in s 66 to two persons, one of whom is a Commonwealth employee and the other an employee of the State. There is also by s 70 of the 2006 Commonwealth Act designation of the State Minister as a designated authority who is given various functions, again under that Act, generally of a more minor nature such as receiving and dealing with applications. NOPSA by s 646 is given functions under the 2006 Commonwealth Act which include functions conferred effectively by the 1982 State Act. In addition it is given functions in s 646(e) to investigate accidents, occurrences and circumstances that affect or have the potential to affect the occupational health and safety of persons engaged in offshore petroleum operations or offshore greenhouse gas storage operations. That function is not in terms limited by reference to the area from which the threat emerges. Accordingly an incident onshore governed by the 1969 State Act could, where it concerns the safety of individuals in the offshore areas, be a concern of NOPSA under that subsection.
87 Each of the respondents has also pointed to the fact that there are provisions for licensees to provide Safety Cases. This arises under the Regulations made under the 2006 Commonwealth Act and also by Regulations under each of the State Acts. These Safety Cases are necessarily uniform or at least consistent, when they apply to the same pipeline or pipelines. Therefore, for the purposes of informing the State Minister or a State department of what is an appropriate Safety Case to be required under the 1969 State Act, it may be necessary to communicate with those responsible for administration of Safety Cases offshore. Similarly, under the Petroleum Submerged Lands Pipelines Regulations of 2007 (regs 23 and 44) there is provision for the submission of a pipeline management plan. That plan provides for the role of NOPSA in approving a safety plan before operational consent is given by the State Minister.
88 Accordingly, it follows that while the 1969 State Act can apply only to one part of the pipeline, it is a component of the larger operation. Thus the regulation requirements imposed by or under one Act may effect the requirements of another. For all these reasons, the respondents stress that there is a real practical, legislative and administrative interdependency and integration between the regimes.
89 The short response to this submission appears to me, once again, to be that the content of the 1969 State Act does support a conclusion that it has a broad purpose. But even that purpose, in the context of the pleaded issues, has to be tested against the release of the s 63 information in light of the principle in Johns’ case.
90 In addition, it is argued, the State may need to engage particular expertise upon which it can take advice. One could, given the legislative structure, readily perceive such expertise to lie in a body such as NOPSA to advise in relation to the 1969 State Act. There would be little purpose in being able to consult experts in order that the State might discharge its obligations under the Act if it could not adequately brief the experts on such matters. In the present circumstances the officers of NOPSA also formed part of the State’s 2008 Investigation. No suggestion has been raised that this was an illegitimate role for the NOPSA officers or for the State.
91 Again, the short response to all of these points from Apache is that the issue under consideration is not pragmatism or ‘the convenience of Ministers’ but the rule of law.
92 For that basal submission, Apache draw from Gaudron J in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 (at [56]) where her Honour said:
Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less. (emphasis added)
93 Similarly in Johns 178 CLR 408 at 467, McHugh J observed:
Information obtained under s.19 is subject to a statutory obligation of confidence. A statute conferring compulsory powers of examination is strictly construed. It is construed as authorising only those actions which are necessary to give effect to the purpose for which the power is conferred and whatever is reasonably incidental to that purpose Morris v. Director of the Serious Fraud Office, [1993] Ch. 372, at p 381. Section 19 defines the purpose for which persons are made the subject of examination under that section. It is to obtain information that is relevant to a matter that the A.S.C is investigating or is to investigate. An A.S.C member who obtains information under s.19 has no power to use the information for any purpose other than that purpose or such other purposes as the legislation authorises. Thus, the examiner, upon receiving the information, becomes subject to an obligation to keep the information confidential unless it is necessary to use the information for the purposes of the Act. The terms of s.22 of the Act, which require the examination to be in private, reinforce the conclusion that information obtained under s.19 is obtained in confidence. (emphasis added)
94 Thus Apaches’ case is not to argue with the need for cooperation between Ministers. Its argument is that, relevantly to this case, at least, ‘the convenience of Ministers’ (or those to whom their powers are delegated) must give way to the rule of law.
THE PURPOSE AND FUNCTIONS OF THE 2009 INQUIRY
95 Each of the respondents has also stressed that the 2009 Inquiry is simply the product of an executive action. It has no statutory authority. It has no coercive powers. Either of the State or the Commonwealth Minister could conduct an inquiry about any aspect of his or her portfolio and, indeed, would be expected to do so. Those conducting the 2009 Inquiry (the Panel), it is argued, are not doing anything that an ordinary citizen could do for himself or herself. It is not as though the s 63 information has been released to a Royal Commission. The real question however always comes back to the question posed by the parties. Was the disclosure to the Panel (which was not ‘internal’) and intended to release its reports beyond the State, for the purposes of the 1969 State Act?
96 There were at least two major functions of the 2009 Inquiry. One was to provide a report to the State Minister, one was to provide a report to the Commonwealth Minister. There was also the question of a report being provided (directly or indirectly) to MCMPR (I will come back to this). The State argues that provision of the documents to the Panel for both or all purposes is a purpose of the 1969 State Act. Alternatively, if release to the Commonwealth Minister, is not authorised by the 1969 State Act, there can be no doubt that release to the State Minister is authorised.
97 The Panel contend that it is apparent under the 1969 State Act that the State Minister is empowered to obtain comprehensive advice from external experts about a petroleum explosion in a pipeline and/or related matters. At the very least, the Panel stresses that it is beyond argument that the State may seek external expert advice in relation to the safety issue arising in connection with the Varanus Island Incident. If the State Minister is obtaining that advice in circumstances where there is an obligation of confidence imposed on those briefed for the purposes of giving the advice, then the process of releasing the s 63 information in order to obtain that advice must be within the purposes of the 1969 State Act and the Regulations according to the Panel.
98 In my view there can be no doubt that the State is and was entitled to obtain expert advice on this issue.
99 To do so, it may need to obtain that advice from external sources. Those external sources may include officers of the Commonwealth. Implicit in this acceptance is that there is little point in obtaining advice on such important matters without being able to brief the experts in relation to that advice. Again, this may be so, but the further question must be how such experts are briefed and what is the ambit of the role of such experts?
100 The Panel contends that the power to requisition documents under s 63 in aid of the purposes of the legislation entails also the power to have the information subjected to expert analysis and advice by reason of the provisions of s 50 of the Interpretation Act 1984 (WA). That section provides as follows:
50. Statutory powers, construction of
(1) Where a written law confers upon a person power to do or enforce the doing of any act or thing, all such powers shall also be deemed to be conferred on the person as are reasonably necessary to enable him to do or to enforce the doing of the act or thing.
(2) Without prejudice to the generality of subsection (1), where a written law confers power —
(a) to provide for, prohibit, control or regulate any matter, such power includes power to provide for the same by the licensing or registration thereof or the granting of permits and power to prohibit acts whereby the prohibition, control, or regulation of such matter might be evaded;
(b) to grant a licence, registration, lease, right, permit, authority, approval, or exemption, such power includes power to impose reasonable conditions subject to which such licence, registration, lease, right, permit, authority, approval or exemption may be granted;
(c) to approve any person, matter, or thing, such power includes power to withdraw approval thereof;
(d) to give directions, such power includes power to express the same in the form of prohibitions.
(3) Subject to section 3(3), this section applies to written laws passed or made after the commencement of this Act.
101 Experts, it is said, are frequently engaged under a duty of confidentiality to advise governed bodies or governments on issues gleaned as a result of exercising compulsory document requisitions or notices. Obvious examples include solicitors or counsel advising in relation to legal issues but the list of professionals who would be engaged by government bodies in those circumstances is much broader.
102 I can see no difficulty with the State being permitted to obtain advice from independent experts bound by a duty of confidentiality so long as the advice which the State seeks and to the extent it uses the s 63 information is confined to the purposes of the 1969 State Act. The difficulty is that the terms of reference on their face go beyond the purposes of the 1969 State Act. The first of the terms of reference speaks of relevant licences for operation as distinct from the single pipeline licence PL 12 which is issued by the State. The terms of reference are clearly directed to the integrated regulatory regime. Within the 2009 terms of inquiry is the inquiry into the incidents involving the cyclone emergencies affecting two separate ships. Those are matters going well beyond the 1969 State Act. A report on those matters cannot be said to be within the purposes of the 1969 State Act. Secondly, the Panel’s report was to be provided, not only to the State but also to the Commonwealth and, at least on the face of the terms of inquiry, directly or indirectly to the MCMPR. As with the Commonwealth, the constituent members of that Council may well have an interest in obtaining the report from the Panel in order to guide their future deliberations at the locations for which those members are responsible. But it would be impossible to say that the receipt by the members of that Council could be for the purposes of the 1969 State Act.
103 The Panel argue that the State Minister would have power to provide the report received from the 2009 Inquiry directly to the Commonwealth, therefore there is no reason the Panel should not do so. In my view, if the content of the report were to rely upon the s 63 information, the answer to this question would be ‘No’. To do so would be no more appropriate than the release of transcripts to the Royal Commission in Johns 178 CLR 408 even though the subject matter there being examined was virtually identical to subject matter in the ASC transcripts. One may also have anticipated that the ASC and the Royal Commissioners would work harmoniously towards common goals in Johns’ case. Perhaps to a point that could also be said of the Police Commissioner and the Commonwealth Director of Public Prosecutions in Katsuno 199 CLR 40. But in neither instance was it possible to conclude that the purposes of the recipient of the information were the same as the purposes of the provider of the information.
104 The Panel contends that whilst the binding principle from Johns’case cannot be questioned, in construing the purposes of the 1969 State Act a broad approach is essential. The issue involves a very limited number of sophisticated entities which are licensees under the 1969 State Act. Each of those entities including Apache has necessarily subjected itself to the regime within the 1969 State Act. Such entities must be taken to appreciate that the purposes of the Act for safety of workforce, safety of the public, the integrity of the pipeline and the reliability of the supply of gas to the State are of such significant import that a narrow view of purpose and thus of the use of s 63 documents should not be taken.
105 Senior counsel for Apache responds that s 63 of the 1969 State Act applies not only to licensees but also to ‘any other person’. It would follow that others (perhaps a limited group also) who may hold documents or information which could be relevant for the purposes of the Act and the Regulations could be required to give up such material only to find that its content was also released to the 2009 Inquiry and probably to the MCMPR.
106 The Panel’s point is that one should not narrowly construe the purposes of the Act and the Regulations in light of the significance of the legislative regime. I agree. I accept in any case, that the purposes of the 1969 State Act are broad purposes. But whether it be a very large multinational or a person at the other end of the sophistication scale, the principle in Johns’case applies. I can discern nothing in the judgments of the High Court (in Johns’case or in subsequent decisions) which would suggest that the application of the principle varies according to the sophistication of the citizen to whom it is to be applied.
SEVERANCE
107 The Panel submits that while the release of the s 63 information to the Panel was permissible for all purposes, in the alternative, if the release to the Commonwealth or indirectly to the MCMPR is beyond power, then it is possible to sever that aspect of the action taken by the State so as to preserve the action that is within power.
108 In support of the argument on behalf of the Panel that any (denied) unauthorised release can be severed from the authorised release, the Panel relies upon a recent decision of the Court of Appeal in Western Australia. In Mandurah Enterprises Pty Ltd -V- Western Australian Planning Commission [2008] WASCA 211, McLure JA (with whom Buss JA and Murray AJA agreed), having concluded that a taking order of all but a zoned portion of a Lot 30 was within power considered whether the invalid acquisition of the zoned portion invalidates the taking of all the lots the subject of the action:
90 The appellants by their conduct below and in the appeal implicitly accept that the common law doctrine of severability applies to taking orders under the Land Act. They did not challenge the validity of the taking order generally but only in relation to the nominated lots. A challenge to the taking order generally would have required the joinder of all persons whose land had been taken by the taking order.
91 The common law doctrine of severability as it applies to subsidiary legislation was explained by the High Court in Harrington v Lowe (1996) 190 CLR 311:
As to the common law in Australia, the position, as established by the earlier decisions of this Court to which we have referred appears to be that a valid operation for the sub-rules might be preserved after textual surgery by operation of the 'blue pencil' rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance. But this latter step may be taken only where in so doing there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to the subject matter dealt with from what it would otherwise be (328).
92 The common law also applies to administrative decisions: Peters v Attorney General (NSW) (1988) 16 NSWLR 24, 41 approved in Malubel Pty Ltd v Elder (No 2) (1998) 73 ALJR 269. The court in Peters held that the doctrine of severability applied to warrants issued in excess of power. The court said severance was available unless the invalid aspect forms part of an inseparable context or the warrant would operate differently or produce a different result from that which was intended. The relevant inquiry appears to be whether the instrument would have been made without the invalid portion (Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (3rd ed, 2004) 642).
93 Applying the test in Peters and because the references to the individual lots are textually severable, the taking of Lot 30 can and should be severed from the valid taking of Lots 7, 8 and 49.
94 The remaining question is whether the invalid taking of the zoned portion of Lot 30 invalidates the taking of the reserved portion of that lot. There can be no doubt that, with knowledge of all relevant facts, the taking order in respect of the reserved portion of Lot 30 would still have been made. The zoned portion of Lot 30 is not part of an inseparable context, nor does its severance produce an unintended result. Moreover, I am not persuaded the failure to undertake the necessary steps to survey and subdivide the reserved portion from the balance of Lot 30 prior to the making of the taking order is an impediment to severance. They are mechanical steps which can and would have been taken if the decision makers had not acted in the mistaken belief that a crossing was required to Lot 30. Any severability order relating to Lot 30 would be conditional upon all necessary steps being taken by the respondent to subdivide the zoned portion of Lot 30 from the balance of the lot. (emphasis added)
109 However, Apache argues it is not possible to sever the legitimate from the illegitimate in this instance. In other words, as an example, it is not possible to sever a reference to the Commonwealth Minister which might be illegitimate from what might be a lawful reference to the State Minister. The reasons advanced by Apache are these. First, the disclosure was by a series of acts for an undifferentiated entire purpose which is that specified by the terms of reference. Secondly, unlike the case of Mandurah Enterprises,on which the Panel relies, it is not possible to ‘blue pencil’ by some textual severance. It is not a situation in which one may remove out of a schedule the unauthorised lots in order to save the instrument as in the case of Mandurah. Thirdly, Apache argue that it is not possible to say about the terms of reference that the same disclosure would have occurred if the portions of the 2009 Inquiry which are outside the purposes of the 1969 State Act had not been part of the inquiry. Finally, it is argued that severance is too late as it has all happened. The disclosure to which the preliminary question is directed has all occurred and has done so in relation to the undifferentiated entirety of the terms of reference.
110 To examine these respective contentions, it is correct to say that the s 63 information was made available to the Panel (at different times) and as to the purpose, the only purpose that one can glean from giving the s 63 information to the Panel is to facilitate the purposes of the 2009 Inquiry itself. Those purposes do include but go beyond the purposes of the 1969 State Act.
111 It cannot be said that the purposes of the Panel in light of the terms of reference of the 2009 Inquiryare the same as the purposes of the 1969 State Act.
112 It is also not possible to say that if that portion of the Panel’s inquiry which goes beyond the purposes of the 1969 State Act (dealing with upstream operations generally, ships and releasing reports to the Commonwealth Minister and the MCMPR) were not within the terms of reference of the 2009 Inquiry that it would still have been conducted for the purposes of examining only matters directly relevant to the purposes of the 1969 State Act.
113 Next, the disclosure to which the preliminary question is directed has all taken place and must necessarily have taken place in relation to the terms of reference of the 2009 Inquiry. It is the actual release of the s 63 information rather than the usage of it to which the preliminary question is directed. I think the question has been properly framed by the parties.
114 Senior counsel for the Panel has assured the Court that the Panel will not release its report to the MCMPR. That assurance is, of course, entirely accepted by the Court. But it addresses use rather than disclosure. The question posed, correctly in my view, is directed to the purposes of the initial release of the s 63 information to the Panel.
ANALYSIS
115 From reading the terms of reference and general context of the 2009 Inquiry, the following observations can be made.
116 First, it is the intention of the Panel to give a report not only to the State Minister but also to the Commonwealth Minister. Also it was the intention (certainly at the time the 2009 Inquiry was announced) that the report and recommendations would be received by the MCMPR for its consideration.
117 Senior counsel for the State submits that the appropriate construction to be placed on the terms of reference is that the report and recommendations will only be given to the Ministers who will then in turn give them to MCMPR. But the question must relate to the conduct of releasing the s 63 information when it was known that the intention of the 2009 Inquiry was that the report and recommendations were to reach not only the Ministers but also the MCMPR. As indicated, this is a body which embraces Ministers from other States and Territories and even potentially New Zealand and Papua New Guinea. Certainly, it goes well beyond the State Minister and Commonwealth Minister.
118 The second obvious feature of the terms of reference of the 2009 Inquiry is that while the terms do embrace examination of issues which are well within the purposes of the 1969 State Act, they also go beyond the ambit of that Act. Even accepting the respondents’ argument that the State operates within a legislative and administrative context in which there is close integration between the State and Commonwealth control over any given pipeline (in this case Apaches’ pipeline), it is clear that this Inquiry is proposing to examine ‘two further major incidents’ involving cyclone emergencies connected with the maritime/upstream petroleum operations on two separate vessels, the Karratha Spirit which resulted in one fatality and the Castor Otto which had a crew of 300 on board but no injuries reported. While it may well be that the s 63 information would be of no interest to the 2009 Inquiry in relation to those issues, it is nevertheless quite clear that the subject matter of those issues is completely divorced from, or to use the language of Brennan J ‘alien to’ the Varanus Island Incident and the purpose for which Apaches’ documents were compulsorily acquired under s 63 of the 1969 State Act.
119 Unlike the Royal Commission which was the subject of analysis in Johns 178 CLR 408, this Inquiry does not, as far as the evidence indicates, have any corporate entity, statutory authority or powers of coercion. Argument for the respondents turns on the submission that the 2009 Inquiry being conducted by the Panel is something that could have been done in-house by either of the Commonwealth or State governments. The distinction is that independent experts are being used in order to take advantage of their knowledge, experience and skills. In those circumstances, it is said, there can be no relevant legal distinction between using the s 63 information internally for the purposes of the 1969 State Act on the one hand and releasing it to the Panel which is advising the State.
120 Apaches’ response to this, which I think is correct, is that it is not to the point that you can find some of the purposes of the 1969 State Act reflected in the proposed work of the Panel. Once it was clear that the Panel intended to carry out functions which go beyond the purposes of the 1969 State Act, it cannot be said that the release is for the purposes of the 1969 State Act.
121 In the terms of the 2009 Inquiry, it is clear that there is no expressed limitation to the 1969 State Act. Nor would that be expected. Clearly the Commonwealth and national interests were of very real importance. The Commonwealth was paying for it. As to its subject matter, the nature of the inquiry is to review regulations for all ‘upstream operations’. There is a reference to licences (ie plural) rather than the Apache licence PL 12 which applied under the 1969 State Act. The reference to the vessels could only be referable to an inquiry into the regulation for all ‘upstream operations’ in the terms of reference as distinct from matters pertaining to the 1969 State Act.
122 The 2009 Inquiry is legitimately a joint inquiry looking at all of the upstream petroleum operations regardless of which legislation applies. But necessarily that takes it outside the scope of the 1969 State Act.
123 Apache argue that the question is not, as framed by the respondents, that if you had an inquiry under the 1969 State Act limited to its purposes, could you rule out questions about another part of the pipeline or another licence on the grounds of relevance? The answer to that may well be no. However, in this situation the starting point is that the 2009 Inquiry is on its face much broader. It is not limited to matters governed by or the purposes of the 1969 State Act. The answer to the question which is posed by the parties cannot be determined by use of the converse approach, that is, by identifying matters in the 2009 Inquiry which are relevant to the 1969 State Act so as to establish that the disclosure is necessarily for the purposes of the 1969 State Act. Once you have an inquiry which is a review of regulation for all upstream operations including other licences and vessels, it is an inquiry necessarily beyond the purposes of the 1969 State Act.
124 The State point to the fact that the s 63 information could be obtained in other ways as Apache were under an obligation after the Varanus Island Incident to give the Director General of the State Department a written report giving ‘full information on the accident’: see regs 23 and 24 of the 1970 State Regulations. The Minister could also require the licensee to submit ‘such reports on the operation of the pipeline as the Minister may direct under the Act’: see reg 25 of the 1970 State Regulations. Licence conditions can and do require the production of documents to the Minister. As such, directions, regulations and licence conditions can and do give the State Minister the right to directly obtain from the licensee documents which may be required under s 63 of the 1969 State Act. In that statutory context the State argues that there is no basis for implying in the 1969 State Act any restriction on the provision of documents obtained under s 63 of that Act to the State Minister or his Department.
125 It may well be that the s 63 information could have been obtained for the benefit of the 2009 Inquiry through other legitimate means just as the s 63 information itself was originally acquired on a legitimate basis. However, the fact that the s 63 information was lawfully acquired and can be conveniently and pragmatically conveyed to the 2009 Inquiry is not an answer to the question posed by the parties which is whether the release of the information to the 2009 Inquiry was, at the time it was released, for the purposes of the 1969 State Act and the Regulations.
CONCLUSION
126 From the Court’s perspective, the parties have cooperated most efficiently to enable this aspect of the dispute to be determined promptly. While I repeat my expression of appreciation for counsels’ assistance, arriving at the conclusion I have reached has not been without difficulty. There have been aspects of the submissions of all counsel which I have found most persuasive.
127 There is undoubtedly a high desirability of achieving safety, security and reliability in relation to gas and petroleum pipelines.
128 The action of the State in releasing the s 63 information to the Panel was a pragmatic, convenient and sensible means of briefing the Panel. This was in order to provide relevant information in order to obtain advice on which the State, the Commonwealth and, on the face of the terms of reference, the MCMPR could proceed.
129 The rule described in Johns’ case precludes information obtained for a particular purpose under statutory compulsion to be used for another purpose unless authorised to do so by statute. The rule has application as much in commercial activities as in criminal law. Further the rule of law does not, for that purpose, distinguish between the position of an individual citizen and a sophisticated multi-national. Although the purposes of the 1969 State Act may well be broad and may necessitate co-operative federalism, the purposes of the 2009 Inquiry went significantly beyond the purposes of the 1969 State Act.
130 The information provided under compulsion by Apache was provided pursuant to powers exercised by State inspectors. The release of the s 63 information to the Panel was to persons whose function and purposes went well beyond those of the 1969 State Act. The release of the s 63 information cannot, in my view, be said to be for the purposes of the 1969 State Act.
131 It follows that it cannot be said that the disclosure by officers of the State to the Panel for the purposes of the 2009 Inquiry by the Panel of documents provided to officers of the State by Apache under notices issued pursuant to s 63 of the 1969 State Act compelling production of the documents was for the purposes of the 1969 State Act and the Regulations within the meaning of s 63 of the 1969 State Act. I order as follows:
(a) The answer to the preliminary question is: No.
(b) I will hear the parties in relation further or other relief.
| I certify that the preceding one hundred-thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. |
Associate:
Dated: 22 May 2009
| Counsel for the Applicants: | A Robertson SC with BD Luscombe |
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| Solicitor for the Applicants: | Mallesons Stephen Jaques |
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| Counsel for the First Respondents: | K Pettit SC |
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| Solicitor for the First Respondents: | Australian Government Solicitor |
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| Counsel for the Second Respondent: | R Mitchell SC with L Dias |
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| Solicitor for the Second Respondent: | State Solicitor for Western Australia |
| Date of Hearing: | 14-15 May 2009 |
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| Date of Judgment: | 22 May 2009 |
