FEDERAL COURT OF AUSTRALIA

Ehrke v Australian Building and Construction Commissioner [2020] FCA 267

ORDERS

THE COURT ORDERS THAT:

1.    The Administrative Appeals Tribunal cease to be a party.

2.    The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    On 11 October 2018, Deputy President Forgie of the Administrative Appeals Tribunal (the Tribunal), acting under s 61C of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCI Act), issued an Examination Notice (the Examination Notice) directed to the applicant. The Examination Notice requires the applicant to attend before the Australian Building and Construction Commissioner (the Commissioner) to answer questions relevant to an investigation.

2    The applicant has brought an application under s 39B of the Judiciary Act 1903 (Cth) seeking a declaration that the Examination Notice is invalid and other relief.

3    The applicant submits that the Examination Notice is invalid because it fails to comply with the principles developed in a series of cases concerning coercive notices and, further, is not in the prescribed form. More particularly, she submits that the Examination Notice is invalid because it fails to reveal whether the investigation is into a matter which the Commissioner is entitled to investigate and does not allow her to ascertain whether any questions she is asked are relevant to the investigation.

4    The Commissioner submits that the Examination Notice does not suffer from these alleged defects and, in fact, provides more information than it is required to provide.

5    It will be necessary to set out the form of the Examination Notice in full and the provisions of the BCI Act and Building and Construction Industry (Improving Productivity) Regulations 2017 (Cth) (the BCI Regulations) in some detail before considering the submissions.

The Examination Notice

6    The Deputy President issued the Examination Notice on 11 October 2018. The material that was before the Deputy President has not been placed before the Court.

7    The Examination Notice is as follows:

Form 3––Examination notice to attend and answer questions

COMMONWEALTH OF AUSTRALIA

Building and Construction Industry (Improving Productivity) Act 2016

NOTICE ISSUED TO        Millie Ehrke

EXAMINATION NOTICE TO ATTEND AND ANSWER QUESTIONS

I, Stephanie Forgie, a nominated AAT presidential member, acting under subsection 61C(l) of the Building and Construction Industry (Improving Productivity) Act 2016, require you to attend before the Australian Building and Construction Commissioner at:

to answer questions that are relevant to an investigation by an inspector into a suspected contravention, by a building industry participant, of the Building and Construction Industry (Improving Productivity) Act 2016 or of a designated building law.

Note l:    The details relating to the investigation are specified in Parts 1 to 4 of the Schedule to this notice.

Note 2:    For your right to be represented at the examination by a lawyer of your choice, see subsection 61F(3) of the Building and Construction Industry (Improving Productivity) Act 2016.

WARNING––Under subsection 62(1) of the Building and Construction Industry (Improving Productivity) Act 2016 you will commit an offence if you have been given this notice and fail:

•    to attend to answer questions at the time and place specified in this notice or at such later time as provided for under subsection 61E(3) or (4) of the Building and Construction Industry (Improving Productivity) Act 2016; or

•    to take an oath or make an affirmation, if required to do so under subsection 61F(4) of the Building and Construction Industry (Improving Productivity) Act 2016; or

•    to answer questions relevant to the investigation while attending as required by this notice.

PENALTY:    Imprisonment for 6 months and/or the imposition of a maximum fine of 30 penalty units.

Note 1:    Subsection 62(2) of the Building and Construction Industry (Improving Productivity) Act 2016 provides protection from the requirement to answer questions if legal professional privilege or public interest immunity applies.

Note 2:    A person who attends an examination as required by an examination notice is entitled to be paid fees and allowances in accordance with rules made by the Minister for the purposes of subsection 63(1) of the Building and Construction Industry (Improving Productivity) Act 2016.

SCHEDULE

Part 1

[address (if any) to which the suspected contravention relates]

The Brisbane Quarter Project, 300 George Street, Brisbane, Queensland.

Part 2

[building industry participant or kind of building industry participant]

a)    Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU)

b)    Multiplex Constructions Pty Ltd

c)    Shayer Group

d)    Jones Lang LaSalle (Qld) Pty Ltd

e)    Mr Edward Bland (CFMMEU Official)

Part 3

[suspected contravention of the Building and Construction Industry (Improving Productivity) Act 2016 or designated building law]

The investigation relates to whether, during the period in Part 4 below, Mr Edward Bland and the CFMMEU through its officials, officers, employees or agents contravened:

a)    Section 348 of the Fair Work Act 2009 by organising or taking action against Mutliplex [sic] Constructions Pty Ltd with intent to coerce Mutliplex [sic] Constructions Pty Ltd, or a third person, to engage in an industrial activity, namely to comply with a request made by the CFMMEU to remove Mr Christopher Cray from his position at the Brisbane Quarter Project.

b)    Section 46 of the Building and Construction Industry (Improving Productivity) Act 2016 Act by organising or engaging in unlawful industrial action at the Brisbane Quarter Project.

Part 4

[period during which the suspected contravention took place]

04 July to 06 July 2018

8    The nature of the applicant’s connection with the named building industry participants or the Brisbane Quarter Project is not apparent from the Examination Notice or the other material before the Court.

9    After service of the Notice, the applicant complained to the Commissioner that the Examination Notice failed to give adequate particulars of the investigation. The Commissioner, although maintaining that adequate particulars had been provided, gave the following additional details of the suspected contraventions:

•    at around mid-morning on 4 July 2018, three CFMMEU representatives, including Mr Bland, entered the project listed in the notice. They were asked to identify themselves and take part in a site induction;

•    the CFMMEU representatives returned to the construction area on the project and called a meeting of all workers on site. Following that meeting, the workers withdrew their labour and work ceased for the remainder of the day;

•    on 5 July 2018, a further meeting of the site's workers was held early in the morning, after which the workers again left site;

•    on 6 July 2018, the workers returned to work after a brief morning meeting; and

•    on 5 and 6 July 2018, Ms Ehrke was present at one or more of the meetings identified above.

10    In the course of the hearing, the Commissioner disclaimed any reliance on the additional details provided as supplementing or otherwise affecting the content of the Examination Notice. Nevertheless, the particulars are of some relevance in illustrating the details that were capable of being included in the Examination Notice.

The BCI Act

11    Under s 16(1) of the BCI Act, the Commissioner has functions that include, “investigating suspected contraventions, by building industry participants, of this Act, designated building laws or the Building Code”.

12    The expression “designated building law” is defined in s 5 of the BCI Act to include the Fair Work Act 2009 (Cth) (the FW Act). The expression “building industry participant” is defined in s 5 to include, relevantly, “a building association” and “an officer, delegate or other representative of a building association”. It is not disputed that the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) is a “building association”.

13    The Examination Notice refers to suspected contraventions of s 348 of the FW Act and s 46 of the BCI Act. Section 46 of the BCI Act provides:

A person must not organise or engage in unlawful industrial action.

14    Section 7 of the BCI Act defines “industrial action” to include “a ban, limitation or restriction on the performance of building work by an employee” and “a failure or refusal to perform any building work at all”. The expression “unlawful industrial action” is defined in s 5 to mean industrial action within s 7 which is not “protected industrial action” within s 8 (and within the meaning of that expression in the FW Act).

15    Section 348 of the FW Act provides:

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

16    The expression “industrial activity” is defined in s 19(1) of the FW Act in a similar way to the definition of that expression in s 7 of the BCI Act.

17    Part 2 of Chapter 7 of the BCI Act is entitled “Examination notices”. Section 61B provides for the making of an application by the Commissioner for the issue of an examination notice:

61B    ABC Commissioner may apply to nominated AAT presidential member for examination notice

General requirements

(1)    The ABC Commissioner may apply, in writing, to a nominated AAT presidential member for the issue of an examination notice referred to in subsection (2) if the ABC Commissioner believes on reasonable grounds that a person:

(a)    has information or documents relevant to an investigation by an inspector into a suspected contravention, by a building industry participant, of this Act or a designated building law; or

(b)    is capable of giving evidence that is relevant to such an investigation.

(2)    The examination notice may require the person:

(a)    to give information to the ABC Commissioner; or

(b)    to produce documents to the ABC Commissioner; or

(c)    to attend before the ABC Commissioner and answer questions relevant to the investigation.

…

(5)    An application for an examination notice must be accompanied by an affidavit by the ABC Commissioner including the following:

(a)    the name of the person to whom the application relates;

(b)    details of the investigation (or investigations) to which the application relates;

(c)    the grounds on which the ABC Commissioner believes the person has information or documents, or is capable of giving evidence, relevant to the investigation (or investigations) referred to in paragraph (b);

(d)    details of other methods used to attempt to obtain the information, documents or evidence;

(e)    the number (if any) of previous applications for an examination notice that the ABC Commissioner has made in relation to the person in respect of the investigation (or investigations) referred to in paragraph (b);

(f)    information about whether the ABC Commissioner has made, or expects to make, any other applications for an examination notice in relation to the investigation (or investigations) referred to in paragraph (b) and, if so, the persons to whom those applications relate.

…

18    Section 61C provides for the issuing of an examination notice upon the Commissioner’s application:

61C    Issue of examination notice

(1)    A nominated AAT presidential member to whom an application for an examination notice has been made must issue the examination notice if the presidential member is satisfied of the following:

(a)    that an inspector has commenced the investigation (or investigations) to which the application relates;

(b)    that there are reasonable grounds to believe that the person to whom the application relates has information or documents, or is capable of giving evidence, relevant to the investigation (or investigations);

(c)    that any other method of obtaining the information, documents or evidence:

(i)    has been attempted and has been unsuccessful; or

(ii)    is not appropriate;

(d)    that the information, documents or evidence would be likely to be of assistance in the investigation (or investigations);

(e)    that, having regard to all the circumstances, it would be appropriate to issue the examination notice;

(f)    any other matter prescribed by the regulations.

(2)    A nominated AAT presidential member must not issue an examination notice except in the circumstances referred to in subsection (1).

…

19    Section 61D specifies the form and content of an examination notice as follows:

61D    Form and content of examination notice

An examination notice must:

(a)     if a form is prescribed by the regulations—be in that form; and

(b)    if the notice requires a person to give information under paragraph 61B(2)(a) to the ABC Commissioner—specify the time by which, and the manner and form in which, the information is to be given; and

(c)    if the notice requires a person to produce documents under paragraph 61B(2)(b) to the ABC Commissioner—specify the time by which, and the manner in which, the documents are to be produced; and

(d)    if the notice requires a person to attend before the ABC Commissioner to answer questions relevant to an investigation—specify the time and place for the attendance; and

(e)    be signed by the nominated AAT presidential member who issued it; and

(f)    include any other information prescribed by the regulations.

…

20    Section 61F applies where an examination notice requires attendance to answer questions:

61F    Conduct of examination etc.

Application of section

(1)    This section applies if a person is required by an examination notice to attend before the ABC Commissioner to answer questions relevant to an investigation.

ABC Commissioner to conduct examination

(2)    The ABC Commissioner must conduct the examination of the person.

Representation by lawyer

(3)    The person may, if he or she so chooses, be represented at the examination by a lawyer of the person’s choice.

Oath or affirmation

(4)    The ABC Commissioner may require the information or answers given by the person at the examination to be verified by, or given on, oath or affirmation, and either orally or in writing. For that purpose, the ABC Commissioner may administer the oath or affirmation.

…

21    Importantly, s 62 provides for circumstances in which a person commits an offence:

62     Offence for failing to comply with examination notice

(1)    A person commits an offence if:

(a)    the person has been given an examination notice; and

(b)    the person fails:

(i)    to give information or produce a document in accordance with the notice; or

(ii)    to attend to answer questions in accordance with the notice; or

(iii)    to take an oath or make an affirmation, when required to do so under subsection 61F(4); or

(iv)    to answer questions relevant to the investigation while attending as required by the examination notice.

Note:    A court may impose a maximum penalty of 30 penalty units instead of, or in addition to, a term of imprisonment. A body corporate that is convicted of an offence may be fined up to 5 times that maximum penalty (see subsections 4B(2) and (3) of the Crimes Act 1914).

Penalty:    Imprisonment for 6 months.

(2)    This Part does not require a person to give information, produce a document or answer questions if to do so would disclose information that:

(a)    is the subject of legal professional privilege; or

(b)    would be protected by public interest immunity.

…

22    Section 102(1) provides that a person is not excused from, relevantly, answering a question “under an examination notice” on the ground that to do so would contravene any other law, or might tend to incriminate the person or otherwise expose the person to a penalty or other liability.

23    Section 102(2) provides that, in the case of an individual who, relevantly, answers a question “under an examination notice”, neither the answer given nor any information, document or thing obtained as a consequence of giving the answer, is admissible in evidence against the individual in any proceedings (subject to specified exceptions).

24    Section 103 provides that a person who answers a question in good faith “when required to do so under an examination notice” is not liable to any proceedings for contravening any other law because of that conduct, or civil proceedings for loss, damage or injury of any kind suffered by another person because of that conduct.

The BCI Regulations

25    Section 7(c) of the BCI Regulations provides that, for the purposes of s 61D(a) of the BCI Act, Form 3 of Schedule 1 sets out the form of an examination notice that requires a person to attend before the Commissioner to answer questions relevant to an investigation.

26    The Examination Notice set out above is in Form 3, save that non-standard information has been added, such as the name of the examinee, the time and date of the examination and the details included in Parts 1 to 4 of the Schedule to the Form. The words in parentheses and italics are part of the prescribed form.

The submissions

27    The applicant relies upon a body of authorities dealing with coercive notices issued pursuant to statutes including the Trade Practices Act 1975 (Cth), the Income Tax Assessment Act 1936 (Cth), the Workplace Relations Act 1996 (Cth) and the FW Act. The applicant submits that, consistently with the principles derived from these authorities, a person who receives an examination notice should be able to ascertain from the face of the notice whether it is a notice that the Commissioner was entitled to issue and whether the questions that are asked are relevant to the investigation into the suspected contravention. She submits that, “the Notice is invalid because it does not contain the necessary details required of a notice of this kind”.

28    The prescribed form, Form 3, requires the inclusion of details relating to the investigation, including the “suspected contravention” of the BCI Act or designated building law. The applicant submits that this also requires the Examination Notice to provide sufficient details to allow her to judge whether questions she is asked are, or are not, relevant to the investigation.

29    The applicant submits that there are five areas in which the particulars in the Schedule to the Examination Notice are defective. They are:

(1)    Part 3 fails to state precisely who it is alleged has contravened the relevant provisions – the applicant is left to guess at which individuals, other than Mr Bland, the investigation might relate to.

(2)    Part 3(a) does not specify what “action” it is alleged was taken in an attempt to coerce, who took that action and when, during the period from 4 to 6 July 2018, it was taken.

(3)    Part 3(a) alleges that the suspected contravention relates to action taken against Multiplex Constructions Pty Ltd “or a third person”, but does not specify who the third person is.

(4)    Part 3(a) does not specify who within the CFMMEU made the alleged request to remove Mr Cray, to whom the request was made, how the request was made and when it was made during the period from 4 to 6 July 2018.

(5)    Part 3(b) does not specify who organised the alleged unlawful industrial action, what that action was, what groups of employees took the action, how the action was organised, when the action was taken during the period from 4 to 6 July 2018 and how the action was unlawful or unprotected.

30    The applicant submits that the absence of these details makes it impossible for her to ascertain whether the investigation is into a matter which the first respondent is entitled to consider. The applicant also submits that, more importantly, the absence of particulars makes it impossible for her to identify the extent of the investigation, and this means that she cannot ascertain whether the questions she is asked are relevant to the investigation. She submits that will put her in the invidious position of not knowing whether she is compelled to answer questions in circumstances where there are penal consequences for failing to answer. The applicant also submits that she must be able to understand the relevance of the questions asked because the application of ss 102 and 103 also depends upon their relevance.

31    The Commissioner submits that the cases relied upon by the applicant concerning other legislative schemes are irrelevant to the present case. He contends that the BCI Act is distinguishable from the other legislative schemes because the BCI Act and Regulations deal expressly and exhaustively with all form and content requirements of examination notices. The Commissioner submits that the applicant’s submission that there are freestanding principles which have application to all coercive notices is misconceived.

32    The Commissioner submits that the Examination Notice complies with the requirements of the prescribed form. He also argues that the requirement in the form to specify the “suspected contraventions” of the BCI Act or designated building law only requires specification of which section of the BCI Act or designated building law is alleged to have been contravened.

Consideration

Validity of the Examination Notice

33    The applicant places substantial reliance upon the judgment of the Victorian Court of Appeal in Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2018] VSCA 165. That case was concerned with the validity of a notice to provide information and produce documents issued under s 9(1) of the Occupational Health and Safety Act 2004 (Vic). In passages emphasised by the applicant, Kaye JA held:

78    There is no direct authority on the requirements that are necessary to be fulfilled in order that a notice under s 9 of the OHSA be valid. However, there are a number of decisions concerning provisions contained in other legislation which, in a similar manner to s 9 of the OHSA, entitled an investigative or enforcement authority to require the compulsory provision to it of information or documents. The principles, outlined in those cases, need to be adapted, in order to allow for differences between the legislation in those cases and s 9 of the OHSA, both in the language in which the particular provisions were couched, and also in order to take into account the different legislative contexts in each case. Nevertheless, and bearing that caveat in mind, the decisions in those cases are based, significantly, on general principles, that are applicable to the general class of provisions, to which s 9 of the OHSA belongs, and which entitle an investigative or enforcement authority to require the compulsory provision to it of information or documents.

79     The fundamental principle, discussed in the cases, is that a notice, requiring the compulsory provision of information or documents, must fulfil two important conditions. First, the notice must disclose, on its face, that it is an exercise of the power which is conferred on the Authority by the statutory provision in question. Secondly, the notice must specify, with reasonable clarity, the information that the recipient is required to provide, or the documents that the recipient is required to produce, so as to enable it to be judged whether the Authority in question is entitled to require the provision of the information or documents stipulated in the notice.

34    The cases referred to by Kaye JA at [78]–[79] include Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565; 57 FLR 368 at 375–376; Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581 at 584, 591 (dealing with s 155 of the Trade Practices Act 1975 (Cth)); Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 525 (s 264 of the Income Tax Assessment Act 1936 (Cth)); Thorson v Pine [2004] FCA 805 at [5]–[9]; Donnelly v O'Donnell (2005) 146 IR 434 at [4] (s 86(1A) of the Workplace Relations Act 1996 (Cth)); D’Anastasi v Environment, Climate Change and Water NSW (2011) 81 NSWLR 82 at [39]–[43] (s 193 of the Protection of the Environment Operations Act 1997 (NSW); and Construction, Forestry, Mining and Energy Union v Alfred (2016) 242 FCR 35 at [16], [24]–[25] (s 712 of the FW Act). In Aurora, Kaye JA distilled from these cases principles which his Honour held were applicable to a general class of provisions which entitle an authority to require the compulsory provision of information or documents (see also [86]–[96]). However, his Honour acknowledged that these principles need to be adapted to different legislative contexts (see also [91]).

35    The decision of the High Court in Ousley v The Queen (1997) 192 CLR 69 provides an example of where one of the principles described by Kaye JA at [79] was not transposable to a different statutory context. The High Court was concerned with s 4A of the Listening Devices Act 1969 (Vic), which required that a warrant specify a number of prescribed matters. The majority (Toohey J at 83, McHugh J at 110–111 and Gummow J at 128) held that, as the provision comprehensively set out all the matters required to be stated in a warrant, there was no further requirement that the basis of the jurisdiction to issue the warrant also be disclosed. The case is authority for the proposition that the validity of a coercive notice must depend upon construction of the particular statutory scheme under which the notice is issued.

36    There are two significant differences between the circumstances of this case and the circumstances in Aurora and the cases it considered. The first is that s 61D(a) of the BCI Act requires that an examination notice must be in the prescribed form, whereas there was no prescribed form under the statutory schemes considered in the other cases. Section 7 of the BCI Regulations provides that Form 3 sets out the form of an examination notice that requires a person to attend before the Commissioner to answer questions relevant to an investigation. Form 3 sets out the matters required to be stated in such an examination notice.

37    The applicant submits that there is a principle identified in Aurora that the recipient of a coercive notice should be able to ascertain from the face of the notice whether it is a notice that the issuer was entitled to issue. However, the application of that principle depends upon the particular statutory scheme in question and must yield to any contrary intention. Section 61D of the BCI Act comprehensively describes the form and content requirements of an examination notice. Section 61D(a) of the BCI Act and s 7 of the BCI Regulations make it clear that an examination notice that requires a person to attend before the Commissioner to answer questions relevant to an investigation must be in Form 3. Form 3 expressly and comprehensively sets out the matters required to be included. There is no room for any implication of unstated requirements by reference to a general principle applicable to different statutory regimes. The Examination Notice is not subject to any independent requirement that it must disclose that it is a notice the Deputy President was entitled to issue.

38    The second difference is that the present case is specifically concerned with a notice to attend to answer questions, whereas Aurora and the other cases dealt with notices for the production of information or documents.

39    In Aurora, Kaye JA at [79] identified a principle that a coercive notice must specify, with reasonable clarity, the information or documents required to be provided, so as to enable it to be judged whether the authority is entitled to require the provision of that information or those documents. Form 1 under the BCI Regulations requires specification of the information required to be given. Form 2 requires specification of the documents or kinds of documents required to be produced. Those forms are consistent with the principle identified in Aurora. Where an application is made to declare such an examination notice invalid, the Court can make a judgment as to whether the information or documents are relevant to the investigation described in the examination notice. If they are adjudged not to be relevant, the examination notice will be invalid since it purports to require information or documents that cannot, under ss 61B(2) and 61C(1)(b) of the BCI Act, be required to be given or produced.

40    The applicant submits that Aurora supports the proposition that the Examination Notice must provide sufficient details to enable her to judge whether any question asked by the Commissioner during the examination is relevant to the investigation. However, an examination notice to produce information or documents is quite different from an examination notice to answer questions. The difference is that Form 3 does not require specification of the questions that are to be asked.

41    Section 61B(1) provides, relevantly, that the Commissioner may apply for the issue of an examination notice if the Commissioner believes on reasonable grounds that a person is capable of giving evidence that is relevant to such an investigation. Section 61B(2) provides that the examination notice may require the person to attend before the Commissioner and answer questions relevant to the investigation. Consistently with s 61B(1) and (2), Form 3 requires the recipient to attend before the Commissioner to answer questions that are relevant to an investigation by an inspector into a suspected contravention. Section 62 provides that a person commits an offence if the person has been given an examination notice and fails to answer questions relevant to the investigation while attending as required by the examination notice, the maximum penalty for which is six months’ imprisonment.

42    It is clear that the recipient of an examination notice to attend to answer questions is only required to answer questions relevant to the investigation into the suspected contravention. It is common ground that the relevance of a question must be determined objectively from the face of the examination notice.

43    However, the applicant’s submission that the Examination Notice should be declared invalid now because she cannot tell from that document whether the questions she will be asked are relevant, cannot be accepted. That is because the questions she will be asked do not have to be disclosed until she attends for the examination. Until the questions become known by being asked, it cannot be judged whether or not the particulars in the Examination Notice are adequate to demonstrate that the questions are relevant to the investigation into the suspected contraventions.

44    The Examination Notice contains some particulars of the suspected contraventions. The particulars include the statutory provisions suspected to have been contravened; the place; the dates; the names of two of the suspected contraveners; the name of an entity alleged to have been subjected to the contravening conduct; and, broadly, the nature of the suspected contravention. The Examination Notice indicates that the suspected contraventions involve industrial action taken to coerce Multiplex Constructions Pty Ltd or an unnamed third party into complying with a request made by the CFMMEU to remove Mr Cray from his position at the Brisbane Quarter Project.

45    Some questions may be asked at the examination before the Commissioner which, having regard to the particulars supplied in the Examination Notice, may be obviously relevant to the investigation into the suspected contraventions. Some questions may be obviously irrelevant. Some questions may be not clearly relevant, nor clearly irrelevant. There may be some questions the relevance of which cannot be judged, one way or another. Until the questions become known by being asked, their relevance or irrelevance or the difficulty in judging their relevance can only be a matter of speculation. Accordingly, the applicant’s submission that the Examination Notice fails to provide sufficient details to allow her to judge whether the questions she is asked are relevant to the investigation cannot be accepted at this stage—it depends upon what questions are asked.

46    In some cases, the suspected contraventions may be so vaguely described and so lacking in particularity in an examination notice that it is apparent that whatever questions are asked, very few could be judged to be relevant to the investigation. In such a case, the examination notice may be argued to be invalid, perhaps on the ground that it is an abuse of process, or that it fails to comply with the prescribed form. This is not such a case. The particulars in the Examination Notice are, on their face, adequate to allow a number of questions to be asked that would be obviously relevant to the suspected contraventions.

47    I reject the applicant’s submission that the Examination Notice should be declared invalid because she cannot tell from that document whether the questions she will be asked are relevant.

48    It may be observed that by procuring an examination notice which contains only vague particulars of the suspected contravention, the Commissioner will create a rod for his own back. An examinee can only be compelled to answer questions that are relevant to an investigation into a suspected contravention. If, upon an objective reading of the examination notice, it cannot be determined whether a question is relevant, the examinee cannot be compelled to answer it. The greater the generality of the description of the suspected contravention in an examination notice, the greater may be the difficulty in establishing that a particular question is relevant. On the other hand, a well-particularised examination notice will make it easier for the relevance of any particular question to be demonstrated. It is not apparent why the Examination Notice in this case failed to include the particulars known to the Commissioner and subsequently provided to the applicant (described at [9]), but it is obvious that if those particulars had been included, the scope for disputation about the relevance of questions to be asked at the examination would be substantially lessened.

49    The Commissioner submits that the Examination Notice provides more particulars than are in fact required. Form 3 requires that Part 3 of the Schedule include, “suspected contravention of the Building and Construction Industry (Improving Productivity) Act 2016 or designated building law”. The Commissioner submits that, on its proper construction, this part of the form only requires specification of the section of the Act suspected to have been contravened, and requires no other particulars of the suspected contravention.

50    I reject the Commissioner’s submission. First, Part 3 of the Schedule to Form 3 refers to a “suspected contravention” of the BCI Act or designated building law. That phrase is picked up from s 16(1)(b) of the BCI Act, which provides, relevantly, that the Commissioner has the function of, “investigating suspected contraventions…of this Act [or] designated building laws”. The phrase also appears in s 61B(1)(a), which refers to the Commissioner’s belief on reasonable grounds that a person has information or documents relevant to, “an investigation by an inspector into a suspected contravention…of this Act or a designated building law”. In both provisions the use of the phrase “suspected contravention” encompasses conduct that is suspected to contravene the BCI Act or a designated building law, and does not refer merely to the section of the Act suspected to have been contravened. The phrase “suspected contravention” in Form 3 should be interpreted as having the same meaning as in the BCI Act: see s 13(1)(b) of the Legislation Act 2003 (Cth).

51    Second, the language of Form 3, considered as a whole, is consistent with requiring a description of the suspected conduct comprising or forming part of the suspected contravention. Note 1 within Form 3 states that, “The details relating to the investigation are specified in Parts 1 to 4 of the Schedule to this notice”. That language seems to be picked up from s 61B(5)(b) of the BCI Act, which provides that an application for an examination notice must be accompanied by an affidavit which includes, “details of the investigation (or investigations) to which the application relates”. The applicant did not advance any argument that Part 3 of the Schedule to Form 3 must include the same details provided in the Commissioner’s affidavit, but, even so, the phrase used in Form 3 should be taken to be used consistently with the BCI Act. That use encompasses the suspected conduct comprising the suspected contravention, and does not merely refer to the section of the Act suspected to have been contravened. What must be disclosed in Form 3 is the “details relating to the investigation”, including details of the suspected conduct.

52    Third, the purpose of the Schedule to Form 3 must be to appraise the examinee of the “details relating to the investigation”, so that when the person is examined, he or she can make a judgment as to whether the questions asked are relevant to the investigation of the suspected contravention. As has been discussed, the examinee is not obliged to answer questions that, on the face of the examination notice, are irrelevant or cannot be determined to be relevant. On the Commissioner’s argument, the Schedule would reveal only the address (if any) to which the suspected contravention relates (in Part 1), the building industry participant or kind of building industry participant (Part 2), the section of the Act suspected to have been contravened (Part 3) and the period during which the suspected contravention took place (Part 4). Without any description of the suspected conduct, it can be imagined that relatively few questions could be judged to be relevant to the investigation of the suspected contravention. To take the present case as an example, if the particulars in Part 3 of the Schedule to the Examination Notice had been omitted, and the applicant were asked whether she was aware of Mr Cray, or whether she was aware of a request by the CFMMEU to remove Mr Cray from the site, she may well be entitled to decline to answer on the basis that the question could not be judged to be relevant to the investigation. That is because it would be unknown whether Mr Cray had anything to do with the suspected contravention under investigation. That would be inconsistent with the provision of details of the investigation to the examinee for the purpose of allowing the examinee to judge whether questions are relevant and have to be answered.

53    Fourth, the Commissioner did not explain why the legislative intention might be to withhold particulars of the suspected conduct known to the Commissioner from the examinee. Such a purpose—involving requiring an examinee to answer relevant questions while, at the same time, withholding information that could allow the examinee to determine the relevance of the questions asked—would seem inconsistent with the object in s 3(2)(c) of the BCI Act of ensuring respect for the rights of building industry participants. The Commissioner’s construction would only promote disputes about the relevance of questions and consequent disruption of examinations. That would seem inconsistent with the object in s 3(2)(e) of providing effective means for investigating and enforcing the BCI Act and designated building laws. The consequences of the Commissioner’s construction would be inconsistent with the effective administration of examinations under the BCI Act.

54    For these reasons, I reject the Commissioner’s submission that Part 3 of the Schedule to Form 3 requires only the specification of the section of the Act suspected to have been contravened and does not require particulars of the suspected conduct constituting or forming part of the suspected contravention. Part 3 requires a description of the suspected conduct that comprises, or is part of, the suspected contravention under investigation.

55    The applicant’s submissions tend to suggest that an examination notice must contain particulars of the suspected contravention of the type and detail that would be required for the prosecution of an alleged offence. It may be noted that in Aurora, Kaye JA held at [91] that a “suspected contravention” need not be described in terms that would be appropriate for an allegation of contravention. It must be remembered that under s 61C(1) of the BCI Act, an examination notice is issued to assist in an investigation into a suspected contravention by allowing the Commissioner to obtain information, documents or evidence that cannot be obtained by other methods. Therefore, at the time when the examination notice is issued, it is most unlikely that the Commissioner will be in a position to give full particulars explaining how and why a suspected contravention amounts to a contravention. Form 3 does not stipulate any level of particularity of the suspected contravention that must be provided. That is because the particulars that are capable of being provided by the Commissioner will vary substantially from case to case.

56    The particulars described by the applicant (at para [29]) as missing may well be part of the information that the Commissioner is seeking to find out by examining the applicant. It follows that the applicant’s submission that the Examination Notice is invalid because it fails to provide such particulars cannot be accepted.

Whether the Deputy President or the Tribunal is the proper second respondent

57    When the applicant commenced her proceeding, the Commissioner was named as the first respondent and the Tribunal as the second respondent. The Commissioner contended that the Deputy President, rather than the Tribunal, should have been named as the second respondent. The applicant was then permitted to join the Deputy President as an additional respondent. In case I am wrong in my view that the applicant has not established the invalidity of the Examination Notice, I will consider whether relief should have been sought against the Tribunal or against the Deputy President.

58    Section 61A of the BCI Act provides:

61A    Minister may nominate AAT presidential members to issue examination notices

(1)     The Minister may, by writing, nominate an AAT presidential member to issue examination notices under this Part.

(2)     The Minister may nominate an AAT presidential member who is a Judge to issue examination notices under this Part only if the Judge has consented, by writing, to the nomination.

 (3)     A nomination ceases to have effect if:

(a)     the nominated AAT presidential member ceases to be an AAT presidential member; or

(b)     the Minister, by writing, withdraws the nomination.

(4)     A nominated AAT presidential member has, in performing a function of or connected with issuing an examination notice under this Part, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

59    Section 61B(1) provides that the Commissioner may apply in writing to a nominated AAT presidential member for the issue of an examination notice. Section 61C(1) requires a nominated AAT presidential member to whom an application has been made to issue the examination notice if satisfied of the matters set out in the provision.

60    The question that arises is whether an AAT presidential member issues an examination notice in their personal capacity, or in their capacity as a member of the Tribunal. If it is the former, the Deputy President is the proper respondent. If it is the latter, the Tribunal is the proper respondent.

61    In Hilton v Wells (1985) 157 CLR 57, Gibbs CJ held at 72:

It clearly appears from these authorities that where a power, judicial or non-judicial, is conferred by statute upon a court or a judge, it is not necessarily conferred on the court or the judge as such - the question is one of construction. Where the power is conferred on a court, there will ordinarily be a strong presumption that the court as such is intended. Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to "judge" rather than to "court" indicates that the power was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it.

62    His Honour went onto say at 72–73:

Even if it were to be assumed that the fact that the power conferred by s. 20 is conferred on "a Judge" gives rise to a prima facie presumption that it is conferred on the judge as such, and that he will determine it as a member of the court to which he belongs, we consider that there are sufficient indications in the statute to rebut that presumption. In the first place it is clear that if the judge is a member of the Supreme Court of a State, or of the Supreme Court of the Northern Territory, the power is not conferred on the Supreme Court of the State or Territory, but upon the judge as a designated person…Since when s. 20 refers to "a Judge" it in some cases refers to a judge as a designated person, it is unlikely that the Parliament intended in other cases to refer to the judge as such and to confer power on the court. Secondly, the nature of the power conferred is of importance in deciding whether the judge on whom it is conferred is intended to exercise it in his capacity as a judge or as a designated person. If the power is judicial, it is likely that it is intended to be exercisable by the judge by virtue of that character; if it is purely administrative, and not incidental to the exercise of judicial power, it is likely that it is intended to be exercised by the judge as a designated person…

63    I accept the Commissioner’s submission that s 61A of the BCI Act indicates that the power to issue an examination notice is conferred upon a presidential member of the Tribunal in his or her personal capacity.

64    First, the nomination is personal to particular presidential members. Not every presidential member need be nominated, and a nomination will not necessarily continue in force while the nominee is a presidential member since, under s 61A(3), the Minister may withdraw the nomination.

65    Second, under s 61A(2), the Minister may nominate a presidential member who is a judge to exercise the power to issue an examination notice. In Hilton, an indicator that the power was intended to be exercised by the judge as a designated person was that the power was purely administrative and not incidental to the exercise of judicial power. A judge who is a presidential member exercises an administrative power under s 61C as a designated person. That suggests that a nominated presidential member who is not a judge also exercises the power as a designated person. It is unlikely that an inconsistent position was intended.

66    Third, if the power to issue an examination notice is conferred in the nominee’s capacity as a presidential member of the Tribunal, then s 61A(4) would have no work to do. Presidential members who perform duties in that capacity already enjoy the same protection and immunity as a Justice of the High Court in the performance of their duties pursuant to s 60(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The inclusion of s 61A(4) reflects an intention that the presidential member instead exercise the power in his or her personal capacity.

67    Fourth, the expression “an AAT presidential member” is defined in s 5 to mean “a person who is a presidential member of the Administrative Appeals Tribunal”. In Grollo v Palmer (1995) 184 CLR 348, the plurality considered it significant that the relevant powers were expressed to be conferred, not on judges of the Federal Court, but on “a person who is a judge”. The reference to “a person” in s 5 suggests that the power is conferred upon a presidential member in his or her personal capacity.

68    For these reasons, I consider that the proper second respondent is Deputy President Forgie. I will make an order, pursuant to r 9.08 of the Federal Court Rules 2011 (Cth), that the Tribunal cease to be a party.

Conclusion

69    For the reasons I have given, I reject the applicant’s contention that the Examination Notice is invalid. The application must be dismissed.

Associate:    

Dated:    6 March 2020