2007 WAIRC 01273

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2007 WAIRC 01273

CORAM
: THE HONOURABLE M T RITTER, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER P E SCOTT

HEARD
:
WEDNESDAY, 19 SEPTEMBER 2007
FINAL WRITTEN SUBMISSIONS FILED WEDNESDAY, 26 SEPTEMBER 2007

DELIVERED : FRIDAY, 30 NOVEMBER 2007

FILE NO. : FBA 9 OF 2007

BETWEEN
:
THE WORKSAFE WESTERN AUSTRALIA COMMISSIONER
Appellant

AND

THE ORIGINAL CROISSANT GOURMET PTY LTD
Respondent

ON APPEAL FROM:

JURISDICTION : OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL
CORAM : COMMISSIONER S M MAYMAN
CITATION : 2007 WAIRC 01039
FILE NO : OSHT 1 OF 2007

CatchWords:
Occupational Safety and Health Act 1984 - Appeal against decision of Occupational Safety and Health Tribunal - Appeal under s49(2a) Industrial Relations Act -  Appeal in the public interest - Error of law - Tribunal purported to cancel the appellant’s improvement notices - Irrelevant consideration relied on by Tribunal - No evidence to support orders of Tribunal - Criteria for issuing of improvement notices - Criteria for issuing of prohibition notices - marking of plant under OSH Regulation 2.9 - Tribunal’s powers under s51A(5) - Further review by Tribunal - Tribunal purported to make all orders under the jurisdiction and powers in s51A(5)(c) Occupational Health and Safety Act 1984 - ‘Make such other decision with respect to the notice as seems fit’ - Relevant context and nature of the review and further review of Tribunal not taken into consideration - Orders of Tribunal not ‘with respect to’ the improvement notices - Failure to comply with s26(3) Industrial Relations Act or otherwise to provide the parties with an opportunity to be heard - Procedural fairness -Opportunity to be heard – Hearing rule – Practical injustice suffered by Appellant - Appeal upheld

Legislation:
Occupational Safety and Health Act 1984 (WA)
s3A(1)(b)(ii), s5, s48, s48(1), s48(2), s49, s49(1), s51, s51(6), s51A, s51A(1), s51A(3), s51A(5), s51G, s51I(1), s54, s61.

Occupational Safety and Health Regulations 1996 (WA)
2.15, 2.16, 2.9, 4.14(1), 4.43(1).

Industrial Relations Act 1979 (WA)
s7, s26(3), s49, s49(1), s49(2), s49(2a), s83, s83(4), s49(5), s113

Interpretation Act 1984 (WA)
s5, s18, s46(1), s46(1a).

Industrial Relations Commission Regulations 2005
96(1)

Occupational Safety and Health Legislation Amendment and Repeal Bill 2004



Result:
Appeal upheld
REPRESENTATION:
Counsel:
APPELLANT : MS A CRICHTON-BROWNE (OF COUNSEL)
RESPONDENT : MR T CARMADY (OF COUNSEL)
Solicitors:
APPELLANT : THE WORKSAFE WESTERN AUSTRALIA COMMISSIONER
RESPONDENT : WILLIAMS & HUGHES, BARRISTERS & SOLICITORS


Case(s) referred to in reasons:

Attorney General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485
Bennett v Higgins (2005) 146 IR 205; (2005) 85 WAIG 3653
BHP Billiton Iron Ore Pty Ltd (BHPB) v Construction, Forestry, Mining and Energy Union of Workers (2006) 151 IR 361; (2006) 86 WAIG 1193; [2006] WASCA 549
Building Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Butler v Johnston, Guild and Somes (1984) 55 ALR 268
Civil Service Association of Western Australia Incorporated v The Commissioner of Police, Western Australian Police (2006) 86 WAIG 639
Commissioner of Taxation (Cth) v Scully (2000) 201 CLR 148
Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297
FCT v Holmes (1995) 58 FCR 151; 138 ALR 59
Fox v Percy (2003) 214 CLR 118
Jeilles v Secretary, Department of Employment and Workplace Relations [2007] FCA 1590
Jennings Constructions v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 465
Kioa v West (1985) 159 CLR 550
McDowell v Baker (1979) 144 CLR 413
Monaco v Arnedo Pty Ltd (unreported); Full Court, S Ct of WA; Library No 940481; 6 September 1994
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273.
Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247 O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
Nordland Papier AG v Anti-Dumping Authority (1999) 93 FCR 454; 161 ALR 120
Pantorno v The Queen (1989) 166 CLR 466
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v L (1994) 122 ALR 464
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Resources; Ex parte Cazaly Iron Ore Pty Ltd [2007] WASCA 175 Salomon v Salomon & Co Ltd [1897] AC 22
Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1; [2005] NSWCA 208
Solomons v District Court of New South Wales and Others (2002) 211 CLR 119
Technical Products Pty Ltd v State Government Insurance Office (1989) 167 CLR 45; 85 ALR 173
Thiess Pty Ltd v The AFMEPKU (2006) 86 WAIG 2495
Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 225 CLR 88
Veloudos and Others v Young (1981) 56 FLR 182
Wilson v Anderson (2002) 213 CLR 401
Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642; 81 ALR 260 at 267
Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational Health, Safety and Welfare (1994) 74 WAIG 2

Case(s) also cited:

Australasian Society of Engineers, Moulders and Foundry Workers, Industrial Union of Workers, Western Australian Branch and Electrical Trades Union of Workers of Australia (Western Australian Branch) and Amalgamated Metal Workers and Shipwrights Union of Western Australia v State Energy Commission of Western Australia (1990) 71 WAIG 315.
Civil Service Association of Western Australia Incorporated v Public Service Commissioner of Western Australia (1937) 17 WAIG 22.
Grade Pty Ltd (Formerly World Enzymes Pty Ltd) v Graham McCorry, Department of Productivity and Labour Relations (1993) 73 WAIG 2016.
Kioa and Others v Minister for Immigration and Ethnic Affairs and Another (1985) 62 ALR 321.
Smith v Allan, Secretary, Treasury of New South Wales 31 NSWLR 52.
The Construction, Forestry, Mining and Energy Union of Workers v BHP Billiton Iron Ore Pty Ltd and Integrated Group Ltd t/a Integrated Workforce (2005) 85 WAIG 1954.
Western Australian Government, Tramways, Motor Omnibuses and River Ferries’ Employees’ Union of Workers, Perth v Commissioner of Railways (1947) 27 WAIG 517.
Western Mining Corporation Limited v Amalgamated Metal Workers and Shiprights Union of Western Australia, Australian Electrical, Electronic, Foundry and Engineering Union, WA Branch, and The Constructions, Mining and Energy Workers’ Union of Australia, Western Australian Branch (1991) 71 WAIG 2009.


Reasons for Decision

RITTER AP:

The Appeal/Application
1 This is an appeal, or an application for leave to appeal if leave is required, and then an appeal if leave is granted. For ease of reference I will refer to the applicant/appellant as “the appellant”. The application/appeal is against a decision of the Commission sitting as the Occupational Safety and Health Tribunal (the Tribunal). The decision was constituted by an order made on 15 June 2007. Reasons for decision were published on 28 August 2007. In making the decision the Tribunal was purporting to exercise the jurisdiction contained in ss51A and 51G of the Occupational Safety and Health Act 1984 (WA) (the OSH Act).

The Right of Appeal
2 Section 51I(1) of the OSH Act provides that listed provisions of the Industrial Relations Act 1979 (WA) (the Act) “apply to the exercise of the jurisdiction” of the Tribunal conferred by s51G, with such modifications as are prescribed under s113 of the Act and as may be necessary or appropriate.
3 Section 49 of the Act is one of the sections listed in s51I(1) of the OSH Act. It is about appeals to the Full Bench from decisions of the Commission. Section 49(2) provides for a right of appeal against a “decision” of the Commission. Section 49(2a) provides that an appeal does not lie from a “finding” unless in the opinion of the Full Bench the matter is of such importance that, in the public interest, an appeal should lie. Pursuant to s51I of the OSH Act, these subsections apply to the decisions and findings of the Tribunal. A decision is defined in s7 of the Act to include an “award, order, declaration or finding”. A finding is defined in s7 of the Act to mean a “decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate”.

Outline of Events and Relevant Sections of the OSH Act
4 To understand and analyse the grounds of appeal it is necessary to set out the events and course of proceedings before the Tribunal in some detail.

(a) The Respondent
5 As stated by the Tribunal in its reasons in paragraph [7], the respondent, “is engaged in the baking industry producing a range of products which are distributed across Australia. The employer’s operations are continuous, 24 hours per day, 7 days per week. Some 50 employees are engaged at the site in Hamwell Way, Bassendean. New pressure vessels were recently installed by the employer in the plantroom driving the cool rooms associated with the production process.”

(b) The Inspection
6 The first relevant event was on 17 May 2007. Senior Inspector John Lawrence Ebert of WorkSafe went to the Bassendean workplace of the respondent and did three things:-
(i) Issued Improvement Notice 302645 about 2 pressure vessels, pursuant to s48 of the OSH Act. (The first improvement notice).
(ii) Issued Improvement Notice 302646 about 2 pressure vessels, pursuant to s48 of the OSH Act. (The second improvement notice).
(iii) Marked 2 pressure vessels.

(c) Improvement Notices
7 Section 48 of the OSH Act is:-
“48. Inspectors may issue improvement notices
(1) Where an inspector is of the opinion that any person — 
(a) is contravening any provision of this Act; or
(b) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated,
the inspector may issue to the person an improvement notice requiring the person to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention.
(2) An improvement notice shall — 
(a) state that the inspector is of the opinion that the person — 
(i) is contravening a provision of this Act; or
(ii) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated;
(b) state reasonable grounds for forming that opinion;
(c) specify the provision of this Act in respect of which that opinion is held;
(d) specify the time before which the person is required, to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention; and
(e) contain a brief summary of how the right to have the notice reviewed, given by sections 51 and 51A, may be exercised.
(3) A person, other than the employer, issued with an improvement notice shall forthwith give the notice, or a copy of it, to the employer, and where — 
(a) under subsection (1), an improvement notice is issued to an employer; or
(b) under this subsection an improvement notice, or a copy thereof, is given to an employer,
the employer shall cause the notice, or a copy of it, to be displayed in a prominent place at or near any workplace affected by the notice.
(3a) A person shall not remove an improvement notice displayed under subsection (3) before the requirements of that improvement notice have been satisfied.
(3b) Subsection (3a) does not apply in respect of an improvement notice that is suspended under section 51 or 51A or that has ceased to have effect.
(3c) If an improvement notice is issued —
(a) to a selfemployed person in respect of a contravention of section 21; or
(b) to a body corporate to which section 21B applies in respect of a contravention of that section,
the person or body shall comply with subsection (3) and (3d) as if the person or body were an employer.
(3d) If an improvement notice is modified by the Commissioner under section 51(5)(b), the employer shall cause a copy of the Commissioner’s decision to be displayed with the improvement notice, or a copy of it, as required by subsection (3).
(4) Subject to sections 51 and 51A, if a person —
(a) is issued with an improvement notice; and
(b) does not comply with the notice within the time specified in it,
the person commits an offence.
(5) A person issued with an improvement notice commits an offence if the Commissioner is not notified forthwith upon the requirements of the improvement notice being satisfied.
(6) If a person contravenes subsection (3), (3a), (3c) or (3d), the person commits an offence.”

8 Section 5 of the Interpretation Act 1984 (WA), defines “Act”, “regulation” and “written law”, in such a way that the OSH Act is an “Act”, and the Occupational Safety and Health Regulations 1996 (WA) (the OSH Regulations) is a “regulation” which is a subset of “subsidiary legislation”. “Subsidiary legislation” and “Acts” are part of what is defined as a “written law”.
9 Relevantly, s46(1) and (1a) of the Interpretation Act then provides:-
“(1) A reference in a written law to a written law shall be construed so as to include a reference to any subsidiary legislation made under that written law.
(1a) An example of the operation of subsection (1) is that a reference in an Act to “this Act” includes a reference to any subsidiary legislation made under the Act.

10 Accordingly the reference in s48(1) of the OSH Act to “contravening” or having “contravened” any provision of “this Act”, includes the OSH Regulations.

(d) Marking of Plant
11 OSH Regulation 2.9 is:-
“2.9. Marking of plant
If an inspector issues an improvement notice or a prohibition notice that relates to any plant at a workplace then the inspector may mark the plant, or any part of it, to indicate that it is not to be used and a person must not — 
(a) use, or cause to be used, any plant, or any part of it, that is marked to indicate that it is not to be used; or
(b) without the authority of an inspector to do so, remove, obliterate, or otherwise interfere with the mark.
Penalty for a person who commits the offence as an employee: the regulation 1.15 penalty.
Penalty in any other case: the regulation 1.16 penalty.”

(e) Contents of the Two Improvement Notices
12 The first improvement notice (302645) said it was in “relation to: Pressure vessels - Chinese built ammonia plant” at the Bassendean workplace. Senior Inspector Ebert wrote that he formed the opinion the respondent was contravening OSH Regulation 4.43(1). The notice said the grounds for this opinion were: “I have formed the opinion that the above place is a workplace and that the above units are not set up as required by AS 3873 in that the safety valves are separated from the vessels by stop valves and that the safety valves are not vented to outside of the building. This may lead to a very hazardous situation for employees with an accidental release of ammonia gas.”
13 The first improvement notice directed the respondent to take the following remedial work by no later than 7 June 2007 at 4:30pm:-
“(i) Vent the safety valves of the above vessels to the outside of the building and to an area where no one can be adversely affected by the release of ammonia gas.
(ii) Ensure that there are no stop valves that can isolate the safety valves from the above vessels.”

14 The second improvement notice (302646) was also in “relation to: Chinese built ammonia pressure vessels”. The second improvement notice said Senior Inspector Ebert formed the opinion the respondent was contravening OSH Regulation 4.14(1). The grounds for the opinion were said to be: “I have formed the opinion that the above place is a workplace and that you have the above plant in use in contravention of the above regulation in that the plant is not registered as required by the Commissioner or any other regulatory authority.”
15 The second improvement notice required the respondent to remedy this by no later than 25 May 2007 at 4:30pm. The respondent was directed to have the plant “appropriately assessed and registered as required before further use”.

(f) Senior Inspector Ebert’s Marking of the Plant
16 As mentioned Senior Inspector Ebert also marked the two pressure vessels. This involved placing a sticker on the plant in the following form:-
“PLANT NOT TO BE USED

I have issued Improvement/Prohibition Notice No: __________ that relates to this item of plant.
This item of plant/part (specifiy) ____________________ MUST NOT BE USED without the authority of an inspector.
Inspector ____________ Number _______ Date _______

It is an offence to remove, obliterate or otherwise interfere with this tag without the authority of an inspector (regulation 2.9 of the Occupational Safety and Health Regulations 1996).”

(g) Review by the Appellant
17 Pursuant to s51 of the OSH Act the respondent by letter dated 21 May 2007 sought a review by the appellant of the first and second improvement notices. Section 51 of the OSH Act is:-
“51. Review of notices
(1) An improvement notice or prohibition notice may, in accordance with this section, be referred for review to the Commissioner by — 
(a) the person issued with the notice; or
(b) the employer (if any) of the person issued with the notice.
(2) A reference under subsection (1) may be made in the prescribed form — 
(a) in the case of an improvement notice, within the time specified in the notice as the time before which the notice is required to be complied with;
(b) in the case of a prohibition notice, within 7 days of the issue of the notice or such further time as may be allowed by the Commissioner.
[(3) and (4) repealed]
(5) On the reference under this section of an improvement notice or a prohibition notice for review, the Commissioner shall inquire into the circumstances relating to the notice and may — 
(a) affirm the notice;
(b) affirm the notice with such modifications as seem appropriate; or
(c) cancel the notice,
and, subject to section 51A, the notice shall have effect or, as the case may be, cease to have effect, accordingly.
(6) The Commissioner shall give to the person that referred the matter for review, and to any other person that was entitled under subsection (1) to refer the notice for review, a notice in writing of the decision on the reference and of the reasons for that decision.
(6a) In dealing with a reference for the review of a prohibition notice the Commissioner may refer to an expert chosen by the Commissioner such matters as appear appropriate and may accept the advice of that expert.
(7) Pending the decision on a reference under this section for the review of a notice, the operation of the notice shall — 
(a) in the case of an improvement notice, be suspended; and
(b) in the case of a prohibition notice, continue, subject to any decision to the contrary made by the Commissioner.”

18 The respondent’s general manager was advised in writing of the outcome of the s51 review by letter from the appellant, dated 25 May 2007. Relevantly, the letter said:-
“…
Improvement notice no. 302645
Having considered your submission and the circumstances in which the above notice was issued, I have decided to affirm the content of the notice and agree to modify the date for compliance for the above notice to 5.00pm on 10 August 2007.
I would like to note the seriousness of issues relating to the notice. I am informed the safety valves of the pressure vessels have not been set up according to Australian Standard AS 3873. They are required to be set up according to this standard by law. This standard establishes safety standards and, because the pressure vessels do not comply, it cannot be guaranteed that they are safe. The risks from failure of the pressure vessels are extreme because ammonia is a highly hazardous substance.

Improvement notice no. 302646
Having considered your submission and the circumstances in which the above notice was issued, I have decided to affirm the content of the notice. I agree to modify the date for compliance for the above notice to 5.00pm on 10 August 2007.

Pressure vessels cannot be used
Please note that the pressures vessels cannot be used because they have been marked as ‘do not use’, under regulation 2.9. They can be used once Inspector Ebert has been informed of compliance with the notices and verified this.

Display of notices
For the information of your employees, you are directed to display a copy of this letter and the notice it modifies in a prominent place at any workplace affected by the notice.” (emphasis is in original)

(h) The Referral to the Tribunal for Further Review
19 On 30 May 2007 the respondent filed a notice of referral to the Tribunal, purportedly under s51A of the OSH Act and regulation 96(1) of the Industrial Relations Commission Regulations 2005. Section 51A of the OSH Act is:-
“51A. Further review of notices
(1) A person issued with notice of a decision under section 51(6) may, if not satisfied with the Commissioner’s decision, refer the matter in accordance with subsection (2) to the Tribunal for further review.
(2) A reference under subsection (1) may be made in the prescribed form within 7 days of the issue of the notice under section 51(6).
(3) A review of a decision made under section 51 shall be in the nature of a rehearing.
(4) The Tribunal shall act as quickly as is practicable in determining a matter referred under this section.
(5) On a reference under subsection (1) the Tribunal shall inquire into the circumstances relating to the notice and may — 
(a) affirm the decision of the Commissioner;
(b) affirm the decision of the Commissioner with such modifications as seem appropriate; or
(c) revoke the decision of the Commissioner and make such other decision with respect to the notice as seems fit,
and the notice shall have effect or, as the case may be, cease to have effect accordingly.
[(6) repealed]
(7) Pending the decision on a reference under this section, irrespective of the decision of the Commissioner under section 51, the operation of the notice in respect of which the reference is made shall — 
(a) in the case of an improvement notice, be suspended; and
(b) in the case of a prohibition notice, continue, subject to any decision to the contrary made by the Tribunal.”

20 The notice of referral said the respondent had referred to the Tribunal the “review of improvement notice 302645 + 302646”. The grounds of the referral were written as:-
“We are happy to comply with the requests of notices 302645 + 302646 we are requesting that whilst we try to meet these requirements that we are able to operate”.

(i) The Tribunal’s Jurisdiction
21 The jurisdiction of the Tribunal is provided or confirmed by s51G of the OSH Act. This section is:-
“51G. Industrial Relations Commission sitting as the Occupational Safety and Health Tribunal
(1) By this subsection the Commission has jurisdiction to hear and determine matters that may be referred for determination under sections 28(2), 30(6), 30A(4), 31(11), 34(1), 35(3), 35C, 39G(1), (2) and (3) and 51A(1).
(2) When sitting in exercise of the jurisdiction conferred by subsection (1) the Commission is to be known as the Occupational Safety and Health Tribunal (the “Tribunal”).
(3) A determination of the Tribunal on a matter mentioned in subsection (1) has effect according to its substance and an order containing the determination is an instrument to which section 83 of the Industrial Relations Act 1979 applies.”

The Course and Outcome of the Tribunal Hearing
(a) 12 June 2007 – Adjournment and Inspection
22 The referral came before the Tribunal for hearing on 12 June 2007. At the commencement of the hearing it became apparent that the plant the subject of the two improvement notices, and which had been marked, was still being used. This was prima facie contrary to the marking of the plant. Counsel for the appellant said the continued use of the plant was not previously known by the appellant. The respondent’s counsel sought an adjournment to more fully prepare for the hearing. To determine that application the Tribunal heard evidence from Senior Inspector Ebert about the dangerousness of the plant. There was then an adjournment for lunch. After that the Tribunal granted an adjournment of only 24 hours because of the risk caused by the continued operation of the pressure vessels on the site.
23 That afternoon the Tribunal inspected the premises and plant of the respondent.

(b) 13 June 2007 – Commencement of Hearing, Amendment of Referral and Meeting with the Tribunal
24 At the suggestion of the Tribunal the referral was amended at the hearing which commenced in the afternoon of the next day. This was because, as the Tribunal later described in its reasons, the respondent “sought to refer the improvement notices at first instance and not the notice of the [appellant] issued on 25 May 2007”. The amendment was “to reflect that the issue before the Tribunal was the [appellant’s] notice in respect of” the two improvement notices. (Reasons paragraph [21]).
25 Counsel for the respondent also informed the Tribunal that some progress had been made overnight about the first improvement notice. Counsel provided a copy of a letter dated 7 June 2007 by Belcold Pty Ltd, a refrigeration consultancy company, which set out a timetable of remedial work. (T27). The letter said the first improvement notice could be satisfied by the work which was described in the letter and this would be completed by lunch time on Monday 18 June 2007. Counsel also advised he was aware that Senior Inspector Ebert was in a position to inspect, on Monday afternoon, to ensure compliance with the first improvement notice. There was then discussion about whether the review of the first improvement notice would be adjourned until after, say, 19 June 2007 to enable Senior Inspector Ebert to perform the inspection. (T27).
26 Counsel then referred to the second improvement notice and said it was not in issue that the plant had not been registered. Counsel said what was in issue was whether the plant was safe or unsafe and there would be some expert evidence about that. (T32). Counsel said the respondent sought the revocation of the decision of the Commissioner under s51A(5)(c) of the OSH Act and the making of another decision about the notices and the marking of the plant. (T32). Counsel then advised that the parties were in dispute about whether the Tribunal had jurisdiction or power to review the marking of the plant or whether this was only held by the Health and Safety Magistrate. (See OSH Regulations 2.15 and 2.16). Counsel submitted the decision of the Tribunal could be to re-issue the improvement notices with an extension of the times for the improvement and the lifting of the marking. (T33).
27 Counsel for the appellant said she wanted the matter to move forward to a decision about the first or second notice. The Commissioner then suggested a meeting in her chambers. The transcript does not reveal the purpose or outcome of that meeting.

(c) 13 June 2007 – Opening by Respondent’s Counsel
28 The next thing transcribed was the recommencement of the hearing. Counsel for the respondent opened by providing photographs and a site map of the work premises. (T36-T37). Reference was again made to the remedial work to be done and that the premises would shut down on Saturday for this purpose. Counsel said this was the evidence of the respondent about the first improvement notice. It was submitted “the remedial work is happening in a timely fashion and that steps have been taken to ensure that the health and safety of staff is preserved until the work is finished.” (T38).
29 There was then some discussion between counsel and the Tribunal about the safety of the premises and the process of registration of the plant. Counsel submitted the respondent was hoping to have the marking of the plant lifted so that during the registration process they could keep using the plant. (T44). It was submitted and asserted the appellant did not disagree with this and that the marking could be removed if other things were done, prior to registration. Counsel submitted the second improvement notice could stay in place about the registration, but the marking of the plant could be lifted in the meantime. (T45). Counsel made submissions about the cost of the potential closure of the respondent’s work premises.

(d) 13 and 14 June 2007 – Witnesses for the Respondent
30 The respondent’s counsel then called Mr Kenneth John Beer to give evidence. Mr Beer has a Bachelor of Engineering and graduated from the University of Western Australia in 1970. He specialises in mechanical engineering. He gave evidence about design registration and the pressure vessels. It is not necessary to discuss his evidence in any detail. At the end of Mr Beer’s evidence the Tribunal adjourned until the following day.
31 At the commencement of the hearing on 14 June 2007, the respondent called Mr Allen Keith Bernhardi to give evidence. He said he had a long involvement in the baking industry and was presently seconded to work for “Yarrows”, the parent company of the respondent. Mr Bernhardi gave evidence about the remedial work which was to be done to comply with the first improvement notice. Again it is not necessary to detail his evidence. Counsel for the respondent informed the Tribunal they did not have any more witnesses. (T79).

(e) 14 June 2007 – Opening by the Appellant’s Counsel and the Appellant’s Witness
32 Counsel for the appellant then opened her case. (T79 ff). This commenced with submissions about the relevant OSH Regulations. There were also submissions about the interaction between the two improvement notices and the OSH Regulations. A submission was made that the respondent was “a long way away from getting the plant registered”. (T81). Submissions were then made about the first improvement notice and the relevant Australian Standard. Counsel summarised that the second improvement notice was about the registration of the pieces of plant and the first improvement notice was about how the plant was set up or installed. This had led, after inspection by Senior Inspector Ebert, to a belief that the two regulations were contravened which are specified in the two improvement notices. Senior Inspector Ebert also decided to exercise his power under OSH Regulation 2.9, to mark the plant and prohibit it from being used. (T82). The Tribunal asked counsel why Senior Inspector Ebert did not issue a prohibition notice. The Tribunal also questioned whether it was the intention of the appellant that the machinery would stop, given the compliance dates in the improvement notices were some way into the future. (T82).
33 Counsel answered that although it was a question which could be asked of the Senior Inspector, he may have been of the view that the risk of harm was not serious and imminent so that a prohibition notice could not have been issued. The Senior Inspector could however write improvement notices and exercise his discretion under OSH Regulation 2.9, as he did, to mark the plant, with the effect that the plant could not then be used. Counsel reiterated the appellant was not aware the plant was still being used until the first day of the hearing. Counsel said the compliance dates were prefaced upon the plant not being used. (T84).
34 Counsel for the appellant concluded her opening by saying the appellant wanted the notices to be affirmed. She said the second improvement notice was based upon the plant not being registered and there seemed to be no dispute about that, so the notice was valid. With respect to the first notice, counsel submitted the plant had not been installed with correct safety valves and exits for gas and so the notice was also valid. It was also submitted the compliance dates of 18 June 2007 for the first improvement notice and 10 August 2007 for the second improvement notice, should remain. During the opening it was also agreed that the submissions about whether the Tribunal had jurisdiction to review the marking of the plant would be made in closing.
35 Senior Inspector Ebert then gave his evidence. Again it is unnecessary to review the detail.

(f) 14 June 2007 – Closing Submissions of the Appellant’s Counsel
36 Following Senior Inspector Ebert’s evidence the Tribunal called upon counsel for the appellant to make her closing submissions. (T105). Submissions were made about the relevant sections of the OSH Act and the OSH Regulations and the evidence about both improvement notices. Counsel then made submissions about whether the Tribunal had jurisdiction to review the decision of Senior Inspector Ebert to mark the plant under OSH Regulation 2.9. The submission was that only the Health and Safety Magistrate had this jurisdiction.

(g) 14 June 2007 – Closing Submissions of the Respondent’s Counsel and Re-listing
37 Counsel for the respondent then started his closing submissions. (T120). The Tribunal informed him it would like to have the matter finished that day so she could re-list it for 10:30am the next day for the handing down of the decision. In his submissions counsel for the respondent emphasised the removal of the marking of the plant under OSH Regulation 2.9. (T122). It was submitted this could be done by a revocation of the first improvement notice and then a reinstatement of it with the obligation imposed by the marking excised; or an affirmation of the decision with a modification, being the excision of the marking of the plant.
38 With respect to the first improvement notice it was submitted the plant be allowed to operate until the remedial work was completed on Monday 18 June 2007. (T122). With respect to the second improvement notice, it was accepted by counsel that the plant had not been registered but he said the process of registration was now underway. This would take about six weeks to be completed. (T122). Submissions were then made about whether the Tribunal had jurisdiction to review the marking of the plant. (T125 ff). At the conclusion of these submissions there was discussion about the form of orders sought by each party. (T131). The Tribunal advised it intended to hand down a minute of proposed order the next day and then list a speaking to the minute. (T132).

(h) 14 June 2007 – Reply by the Appellant’s Counsel and Re-Listing
39 Counsel for the appellant then made some submissions in reply. At the conclusion the Tribunal again said the matter was listed for tomorrow at 10:30am when a minute would be handed down. (T139).

(i) 15 June 2007 – Minute of Proposed Orders and the Speaking to the Minute
40 At the commencement of the hearing on the next day the Tribunal said it had considered the submissions and reached a decision. (T141). No reasons were then delivered. It appears from the transcript that the parties had been handed a minute of proposed order by the Tribunal. This was then read by the Tribunal. Afterwards the Tribunal said “that concludes the minute … and my determination of this matter”. (T142). The Tribunal said it needed to know from the parties how long they required to consider speaking to the minute as the Tribunal wanted to issue the order later that morning. The proceedings were adjourned pro tem to enable counsel to consider the minute and take instructions.
41 When the Tribunal reconvened, submissions were made by both counsel about the form of some of the orders to be made. After this the Tribunal stood the matter down for a short period of time whilst changes were made to the minute. Upon resumption both counsel concurred with the redrafted form of the minute. (T147/8). The Tribunal then said the order would issue within the next hour and copies would be made available.

(j) The Tribunal’s Publication of Reasons
42 The Tribunal said the reasons would issue as soon as reasonably practicable. (T148). At that stage the Tribunal had not given any reasons even in oral summary form, for the publishing of the minute of proposed order or the making of the order. In my respectful opinion it would have been far better if the Tribunal had done so. I accept the Tribunal was understandably concerned about the safety of the workplace and wanted to make orders expeditiously. Despite this however I cannot see any reason why at least short oral reasons could not have been given and expanded on later. The provision of reasons is a normal component of the process of judicial determination or arbitration. The purpose and benefits of reasons being formed and published are set out in Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at paragraphs [26]-[28].

The Order of the Tribunal
43 The order made on 15 June 2007 and appealed against (if leave is required and granted) is:-
“WHEREAS the Occupational Safety and Health Tribunal has heard this application and has determined that it will issue its decision and publish its reasons for that decision later;
WHEREAS having heard Mr T Carmady (of counsel) on behalf of The Original Croissant Gourmet Pty Ltd and Ms A Crichton-Browne (of counsel) on behalf of the Worksafe Western Australia Commissioner, the Occupational Safety and Health Tribunal, pursuant to the powers conferred under the Occupational Safety and Health Act 1984 (“the Act”) hereby:
1. REVOKES that part of the Worksafe Western Australia Commissioner’s notice referring to Improvement Notice 302645 as affirmed on 25 May 2007 with an extended compliance date and, in accordance with s 51A(5)(c) of the Act, cancels Improvement Notice Number 302645. The revocation of the Worksafe Western Australia Commissioner’s notice and the cancellation of the Improvement Notice Number 302645 will take effect on and from the issuance of this Order.
2. MAKES the following Orders with respect to the venting of safety valves and the location of stop valves relating to all pressure vessels in the plant room of The Original Croissant Gourmet Pty Ltd:
(a) THAT the safety valves of the pressure vessels be immediately vented to the outside of the building to an area where no one can be adversely affected by the release of ammonia;
(b) ENSURE that there are no stop valves that can isolate the safety valves from the pressure vessels;
(c) THAT the scope of works referred to in Order 2. be commenced within 24 hours following the issuance of this Order and completed by close of business Monday, 18 June 2007;
(d) THAT The Original Croissant Gourmet Pty Ltd be prohibited from operating the pressure vessels in the plant room until the scope of works referred to in Order 2(a) and 2(b) has been completed; and
(e) THAT the Worksafe Western Australia Commissioner or a delegated representative knowledgeable in the area of plant inspects the modifications referred to in Order 2. and reports back to the Occupational Safety and Health Tribunal by close of business Tuesday, 19 June 2007.
3. REVOKES that part of the Worksafe Western Australia Commissioner’s notice referring to Improvement Notice 302646 as affirmed on 25 May 2007 with an extended compliance date and, in accordance with s 51A(5)(c) of the Act, cancels Improvement Notice Number 302646. The revocation of the Worksafe Western Australia Commissioner’s notice and the cancellation of the Improvement Notice Number 302646 will take effect on and from the issuance of this Order.
4. MAKES the following Orders with respect to the registration of all pressure vessels in the plant room of The Original Croissant Gourmet Pty Ltd:
(a) THAT all pressure vessels contained in the plant room be appropriately assessed and registered in accordance with the terms of the Occupational Safety and Health Regulations, 1996;
(b) THAT The Original Croissant Gourmet Pty Ltd be prohibited from operating the pressure vessels in the plant room on or before Friday, 10 August 2007 except for:
(i) any operation that might be required for the registration process pursuant to the Occupational Safety and Health Regulations, 1996 to be concluded; or
(ii) any reduced pressure in the plant room vessels considered by a Worksafe Inspector, knowledgeable in the area of plant, to be sufficient to allow for the safe operation of the plant.
(c) THAT the Worksafe Western Australia Commissioner or a delegated representative knowledgeable in the area of plant inspects the modifications referred to in Order 4. and reports back to the Occupational Safety and Health Tribunal by close of business Friday, 10 August 2007.
5. REQUIRES that all access of person(s) through, in and around the area containing the pressure vessels be prohibited, within reason, until all acts required by Order 2 and 4 herein have been completed.
6. REQUIRES that a copy of this Order be provided to every person, including employees, employers, subcontractors and any other person(s) in or around the workplace by The Original Croissant Gourmet Pty Ltd until such time as the terms of this Order have been met.
7. LIBERTY to apply is reserved to either party to vary the times in Orders 2(c), 2(d), 4(b), 4(c), 5. and 6. or to refer any matter relating to the implementation of Order 4 (b)(ii) to the Occupational Safety and Health Tribunal.”

The Reasons of the Tribunal
(a) Introduction
44 The Tribunal commenced its reasons for decision with an introduction and setting out of relevant background. The reasons then mentioned the amendment of the application.

(b) Evidence and Submissions
45 The Tribunal summarised the respondent’s “Evidence and Submissions” and discussed the evidence of Mr Beer and Mr Bernhardi. The Tribunal then summarised the respondent’s legal submissions about whether there could be a review of the marking of the plant. The Tribunal discussed the appellant’s evidence and submissions. Included within this was a discussion of the evidence of Senior Inspector Ebert and a summary of the legal submissions of the appellant.

(c) Credibility
46 The Tribunal then commenced a section of its reasons headed “Conclusion and Findings”. A first sub-heading was “Credibility”. The Tribunal found all the evidence of the witnesses to be credible, except for some speculative evidence on one point which is immaterial to the appeal. The Tribunal also said “to the extent of any inconsistency between the three witnesses the Tribunal accepts the evidence of Inspector Ebert and Mr Beer over Mr Bernhardi”. ([56]).

(d) Jurisdiction to Review Marking of Plant
47 The Tribunal decided the jurisdictional issue about whether the Tribunal could review the marking of the plant. It decided it did not have this jurisdiction. (See paragraphs [57] and [58] of the reasons and OSH Regulations 2.15 and 2.16).

(e) “Legal Considerations”
48 The Tribunal next commenced a section of reasons headed “Legal Considerations”. The Tribunal said that its role was “administrative in nature”. ([59]). The Tribunal quoted ss51A, 48 and 49 of the OSH Act. Section 49 of the OSH Act, which has not been quoted earlier, is:-
“49. Inspectors may issue prohibition notices
(1) Where an inspector is of the opinion that an activity is occurring or may occur at a workplace which activity involves or will involve a risk of imminent and serious injury to, or imminent and serious harm to the health of, any person, the inspector may issue to a person that is or will be carrying on the activity, or a person that has or may be reasonably presumed to have control over the activity, a prohibition notice prohibiting the carrying on of the activity until an inspector is satisfied that the matters which give or will give rise to the risk are remedied.
(2) An inspector who issues a prohibition notice, other than in respect of an activity as defined in subsection (7), shall remain at the workplace until the employer has been advised of the notice and, where the notice is in respect of an activity that is occurring, the prohibited activity has ceased.
(3) A prohibition notice shall — 
(a) state that the inspector is of the opinion that in the workplace there is occurring or may occur an activity which involves or will involve a risk of imminent and serious injury to, or imminent and serious harm to the health of, a person;
(b) state reasonable grounds for forming that opinion;
(c) specify the activity which in the inspector’s opinion involves or will involve the risk and the matters which give or will give rise to the risk;
(d) where in the inspector’s opinion the activity involves a contravention or likely contravention of any provision of this Act, specify that provision and state the reasons for that opinion; and
(e) contain a brief summary of how the right to have the notice reviewed, given by sections 51 and 51A, may be exercised.
(4) A person, other than the employer, to whom a prohibition notice is issued shall forthwith give the notice, or a copy of it, to the employer, and where — 
(a) under subsection (1), a prohibition notice is issued to an employer; or
(b) under this subsection a prohibition notice, or a copy thereof, is given to an employer,
the employer shall cause the notice, or a copy of it, to be displayed in a prominent place at or near any workplace affected by the notice.
(4a) A person shall not remove a prohibition notice displayed under subsection (4) before the requirements of that prohibition notice, taking into account any modifications made under section 51(5), have been satisfied or the prohibition notice has ceased to have effect.
(4b) If a prohibition notice is issued —
(a) to a selfemployed person in respect of a contravention of section 21; or
(b) to a body corporate to which section 21B applies in respect of a contravention of that section,
the person or body shall comply with subsection (4) and (4c) as if the person or body were an employer.
(4c) If a prohibition notice is modified by the Commissioner under section 51(5)(b), the employer shall cause a copy of the Commissioner’s decision to be displayed with the prohibition notice, or a copy of it, as required by subsection (4).
(5) Subject to sections 51 and 51A, if a person issued with a prohibition notice does not comply with the notice, the person commits an offence.
(6) If a person contravenes subsection (4), (4a), (4b) or (4c), the person commits an offence.
(7) The application of this section extends to residential premises that are being or may be occupied by an employee as mentioned in section 23G(2), and for that purpose —
(a) in this section —
(i) “workplace” includes such premises; and
(ii) references to imminent and serious injury to, or imminent and serious harm to the health of, a person are to be read as applying only to an employee;
and
(b) in this section and section 50 “activity” includes the occupation of such premises.”

49 In paragraph [61] the Tribunal said that, “relevant to the Tribunal’s considerations in these matters as referred are the provisions for an inspector to issue a prohibition notice …”. This is a reference to s49 of the OSH Act.
50 The Tribunal then considered the nature of its task by citing the Industrial Appeal Court (IAC) decision of Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational Health, Safety and Welfare (1994) 74 WAIG 2. The Tribunal said that at the time of Wormald Security, reviews were conducted by the Commission. The Tribunal said the OSH Act had been amended but the legislation about the operation of the Tribunal today “has some similarities”. The Tribunal quoted from the reasons of Franklyn J at page 4 of Wormald Security where his Honour said there was, “no question of the onus being on the person seeking the review to establish that the notice should not have issued, either in the form in which it did or at all, although he would of course be entitled to adduce evidence to that effect. The inquiry being “into the circumstances relating to the notice” it necessarily, in my view, requires that the Commissioner inquire into and ascertain for himself the validity of the Inspector’s opinion and the relevant circumstances giving rise thereto as set out in the notice.” The Tribunal said it considered these observations to be relevant.
51 The Tribunal said at paragraph [63] that after conducting an inquiry (under s51A(5) of the OSH Act) it had three options. These were to affirm, modify or revoke the decision of the appellant. The Tribunal said the third option under s51A(5)(c) of the OSH Act was the broadest. The Tribunal said that under the former OSH Act the Commission’s powers were narrower than those it presently possessed.
52 The Tribunal said s51A(5)(c) provided for the revocation of the appellant’s decision and the making of such other decisions with respect to the notices as the Tribunal “seems fit”. The Tribunal then quoted definitions of each of the words “as”, “seem” and “fit” from the Macquarie Dictionary Online, Fourth Edition 2005 (28 August 2007). The Tribunal also quoted from paragraph [12.7] of Statutory Interpretation in Australia, 6th edition, D C Pearce and R S Geddes, 2006 where the authors discussed the meaning of the expression “in respect of”. ([63]-[64]). (The part of the paragraph quoted by the Tribunal is quoted later in these reasons).
53 The Tribunal then said its decision “would need to be well adapted or suited to the findings of the inquiry having regards to the objects of the [OSH Act] in particular the first four objects as prescribed in s 5 of the [OSH Act]”. ([64]).
54 The Tribunal referred to the reasons of Nicholson J in Wormald Security about the meaning of the word “risk”, and the reasons of Nicholson J and Franklyn J about the expression “imminent and serious”. ([65]-[66]). This expression is still used in s49(1) of the OSH Act.
55 The Tribunal then said in paragraph [67] of its reasons:-
“67 Critical to the issuance of a prohibition notice is whether the inspector is of the opinion that an activity involves or will involve a risk of imminent and serious injury or harm. Having regard for the statute the Tribunal considers the issuance of an improvement notice even when combined with an administrative decision pursuant to reg 2.9 to ‘mark’ the pressure vessels requiring the employer to cease operating the plant is a less serious consequence than the issuance of a prohibition notice. More stringent provisions apply when the decision has been made to issue a prohibition notice. Provisions within s 49(2) require an inspector to “remain at the workplace” until such time as the activity the subject of the prohibition notice has ceased. The operation of a prohibition notice under review by the WorkSafe Commissioner or a further review by the Tribunal continues s 51(7)(b) and s 51A(7)(b), subject to any decision to the contrary made by either the WorkSafe Commissioner or the Tribunal. The matters the subject of a prohibition notice are prohibited “until an inspector is satisfied that the matters which give or will give rise to the risk are remedied”. By comparison no such provisions are reflected in the statute when an inspector issues an improvement notice.”

(f) Findings
56 The next section of the Tribunal’s reasons was headed “Findings”. The main findings made by the Tribunal were:-
(i) It was not in dispute that when the two improvement notices were issued the safety valves were separated from the pressure vessels by stop valves and not vented to the outside of the building. Also the pressure valves which had been installed in November 2006 and operative from half way through January 2007 were not registered. ([68]).
(ii) It was conceded by the respondent that at no stage since 17 May 2007 had the pressure vessels ceased to operate, with the exception of short term shut down periods, despite the marking of the plant pursuant to OSH Regulation 2.9. ([70]).
(iii) Each of the two improvement notices “met the terms required of such issuance with one exception”. ([70]). In effect the Tribunal said this was that the respondent’s premises on 17 May 2007 had a significant risk that ammonia, a toxic gas, could be released into the workplace. Accordingly the Tribunal found “the appropriate action on the day in question to ensure a shut down of the pressure vessels and associated plant would have been to issue prohibition notices”. ([70]).
(iv) After quoting some of Senior Inspector Ebert’s evidence the Tribunal found that issuing improvement notices and marking the plant was inappropriate. ([72]). The Tribunal found the circumstances were more serious than situations in which inspectors would normally issue prohibition notices. ([72]).
(v) The Tribunal said from the evidence of Senior Inspector Ebert he appeared to be guided by WorkSafe’s policy. The Tribunal then said, “… there was no information available on which such an opinion could have been reached other than the opinion envisaged by s49(1), that being operation of the pressure vessels ‘would involve’ a risk of imminent and serious injury to or harm to any person”. ([75]).
(vi) In making this finding the Tribunal followed the meaning of the expression “imminent and serious” as discussed by the IAC in Wormald Security. ([76]).
(vii) In paragraph [77] the Tribunal said it found “in such circumstances unregistered equipment was normally from another state and there were visual indications that the plant was more than 90% satisfactory. The Tribunal finds that on the basis of the lack of detail available to Inspector Ebert at the employer’s premises that the unregistered pressure vessels in the plantroom, the risk of inhalation of ammonia gas accidentally released from the pressure vessels into the plant room together with the potential for an explosion to occur was severe, more so at the employer’s premises than circumstances where WorkSafe inspectors had issued prohibition notices in the past. Inspector Ebert had a reasonable basis on which to issue prohibition notices.”
(viii) The respondent did not challenge statements contained in the improvement notices, the issuing of the notices and the provisions of the OSH Act and OSH Regulations which Senior Inspector Ebert relied upon to support his opinions. The placement of the mark on the plant was the issue of most concern to the respondent. ([79]).

(g) Conclusions
57 The next section of the Tribunal’s reasons was headed “Conclusions”. The major conclusions reached were:-
(i) The Tribunal had conducted an inquiry as required and was satisfied that on 17 May 2007 Senior Inspector Ebert thought the ongoing operation of the pressure vessels in the plant room at the employer’s premises involved a serious risk of injury or harm to the health of persons in and around the plant. ([80]).
(ii) There was clear evidence to support a “serious” risk. “The one contentious issue for the Tribunal to consider was whether at the time the risk referred to involved or would involve ‘imminent’ injury or harm to any person as required by s49(1) of the Act”. ([80]).
(iii) Having regard to the opinions of Senior Inspector Ebert as set out in the two improvement notices, the Tribunal found the situation at the respondent’s premises posed risks which were “imminent and serious” under s49(1) of the OSH Act. ([81]-[83]).
(iv) Despite the marking of the plant, the respondent did not “cease operations”. ([84]). At the time of the s51 review the risk at the respondent’s premises was unchanged. The risk remained “serious and imminent” and the decision of the appellant on 25 May 2007 to affirm each improvement notice ought be revoked. ([84]).
(v) The Tribunal, having revoked the decision of the appellant, was required under s51A(1)(c) to “make such other decision with respect to the notice as seems fit”. The Tribunal concluded “it seems fit” to prohibit the operation of the machinery effective on and from the issuing of any orders by the Tribunal. The failure of the respondent to shut down the plant, despite the marking, was taken into account by the Tribunal in determining the appropriate action to take. This was said to be not a relevant factor in the Tribunal’s decision to revoke the appellant’s decision. It was however relevant when considering what appropriate action ought now occur. ([85]).
(vi) After reviewing some of the evidence of Senior Inspector Ebert, the proposed remedial works and the remaining registration process, the Tribunal concluded that “if there is a safe operating level able to be achieved by [the respondent], then the pressure vessels ought to be allowed to operate within the terms of the order”. ([87]). The Tribunal thought the respondent ought to consult with a delegated representative of the appellant to oversee the progress of the registration of the plant. The Tribunal said it was “unable to conclude at this point whether a safe alternative option for operation of the pressure vessels is available”. (87]).
(vii) In the absence of information indicating the plant could operate safely, “it seems fit” to issue orders prohibiting the operation of the pressure vessels in the plant room until the registration process had been concluded. As part of this, access of all persons through, in and around the area containing the pressure vessels should be prohibited, within reason, until such time as the registration process and the alterations to the safety valves and venting was complete. ([88]).
(viii) It is appropriate to set out in full the final substantive paragraph of the Tribunal’s reasons:-
“90 Having revoked the WorkSafe Commissioner’s decision of 25 May 2007 and having concluded that the risk associated with the operation at the pressure vessels in the plant room at the employer’s premises was on 17 May 2007, the day the improvement notices were issued was “imminent and serious” the Tribunal concludes that Improvement Notice Number 302645 and Improvement Notice Number 302646 ought be cancelled with effect on and from the issuance of any orders. The Tribunal concludes, having regard for the definition of “practicability” under the Act, together with the presence of risk considered to be “imminent and serious” that the pressure vessels in the plantroom at the employer’s premises ought cease operating on and from the issuance of any orders. The Tribunal concludes “it seems fit” as those words are envisaged by s 51A(5)(c) of the Act to issue orders requiring:

- The immediate venting of safety valves to the outside of the building to an area where no one can be adversely affected by the release of ammonia;
- the relocation of stop valves to ensure that safety valves associated with the pressure vessels are not isolated;
- commencement of works associated with these two matters within 24 hours following the issuance of any orders resulting from this determination and completed by close of business, Monday, 18 June 2007;
- The employer implement the assessment process and have registered all pressure vessels from the plantroom in accordance with the Regulations; and
- That the WorkSafe Commissioner or a delegated representative knowledgeable in the area of plant inspect the modifications once the registration process has been complete and report back to the Tribunal.

- That all access of person(s) through, in and around the area containing the pressure vessels be prohibited, within reason, until the proposed works envisaged for the weekend commencing 16 June 2007 until the conclusion of the registration process have been completed.

- That a copy of any Orders issuing be provided to all persons in and around the site including employees, employers, subcontractors and any other person(s) by The Original Croissant Gourmet Pty Ltd until such time as the terms of any Order issuing have been met.”

The Grounds of Appeal
58 The notice of appeal was filed on 4 July 2007. As stated the Tribunal published its reasons on 28 August 2007. The appellant then filed an application on 4 September 2007 for an order to amend the grounds of appeal to the terms set out in a minute attached to the application. The application to amend was consented to by the respondent at the hearing and an order granting the application was made. (Technically, this order should have been made subject to the Full Bench granting leave to appeal, if required, but nothing turns on this.)
59 As amended, the grounds of appeal are:-
“Grounds of Appeal
1. The Occupational Safety and Health Tribunal (the Tribunal) erred in law in failing to comply with section 26(3) of the Industrial Relations Act 1979 (the IR Act) or to otherwise provide the parties with an opportunity to be heard as to whether:
1.1 it had jurisdiction to make the orders in paragraphs 2, 4, 5 and 6 of the final orders it made on 15 June 2007; and
1.2 upon the review of an improvement notice it was open to the Tribunal to consider whether it would have been appropriate for the inspector to have issued a prohibition notice.
2. The Tribunal erred in law in deciding that it had jurisdiction to make the orders in paragraphs 2, 4, 5 and 6 of the final orders it made on 15 June 2007.

Particulars
2.1 Upon the referral to it of a matter pursuant to section 51A(1) of the Occupational Safety and Health Act 1984 (the Act) the jurisdiction of the Tribunal was limited to making orders which effected the terms of Improvement Notice 302645 and Improvement Notice 302646 (the Notices) and/or whether the Notices had effect or ceased to have effect. The orders in paragraphs 2, 4, 5 and 6 do not relate to the Notices at all.
2.2 If the jurisdiction of the Tribunal is not limited in the manner set out in paragraph 2.1 of these Grounds of Appeal, in any event the Tribunal did not have jurisdiction to make the orders in paragraphs 2, 4, 5 and 6 of the final orders it made on 15 June 2007.
3. The Tribunal erred in law in deciding, in paragraphs 1 and 3 of the final orders made on 15 June 2007, firstly to revoke the decisions of the WorkSafe Western Australia Commissioner to affirm the Notices, and secondly to cancel the Notices.

Particulars
3.1 Upon the review of the Notices it was not open to the Tribunal to consider whether it would have been appropriate for the inspector to have issued prohibition notices.
3.2 The Tribunal failed to properly exercise the discretion which section 51A(5) of the Act reposed in it, because upon the facts the results embodies in paragraphs 1 and 3 of the orders made on 15 June 2007 are plainly unreasonable and unjust.

Particulars of the Facts
3.2.1 There was no evidence that an error had been made in the issuing of the Notices, or that there was insufficient evidence to support the issuing of the Notices.
3.2.1.1 The decision of the inspector not to issue prohibition notices under section 49 of the Act does not have any impact upon the validity and appropriateness of the Notices.
3.2.1.2 All of the evidence supported the issuing of the Notices, and neither of the parties sought to present evidence to the contrary or make submissions to the contrary.”

The Respondent’s Position
60 Prior to the hearing of the appeal, the respondent through its solicitors respectfully advised that although they would be bound by any order made by the Full Bench, it was not intending to actively participate in the hearing of the appeal. Counsel for the respondent appeared at the hearing to seek leave to withdraw. Counsel submitted the equipment which was the subject of the orders of the Tribunal was in the process of being replaced. The Full Bench was told the work the subject of order 2 had been completed. We were also told the plant had been approved by Worksafe to operate within parameters. Counsel also said the registration process had not been completed but the respondent had obtained a source of alternative equipment and was in the process of installing it. This equipment already had design registration in Western Australia, so that once the equipment was satisfactorily installed the last step in the registration process would follow almost as a matter of course. Counsel submitted that in a practical sense the events on the ground had overtaken the orders that had been made. It was accordingly submitted any decision by the Full Bench would not have any practical consequences. Counsel did not however submit the Full Bench should dismiss the appeal on this basis.

Practical Consequences of the Appeal being Determined
61 Nevertheless the respondent’s counsel’s submissions raised the issue of whether there was any point in proceeding to hear and determine the application/appeal. The appellant’s counsel made a number of submissions in support of the proposition that there were practical consequences if the appeal was determined and therefore the hearing ought to proceed. I then advised the appellant’s counsel on behalf of the Full Bench that although there were some concerns about this issue, the Full Bench had not reached a position where we considered there was no point in proceeding with the appeal. We therefore excused the respondent’s counsel from attending, if that was what he chose to do, and heard the application/appeal. I also said the Full Bench would grant leave to the appellant, after the hearing, to file additional submissions about the practical consequences of the appeal being determined. This was later formalised in an order which gave the appellant liberty to address this and other issues, in additional written submissions to be filed within 7 days of the hearing. By the time the order was made, the respondent’s counsel had withdrawn. Accordingly an order was also made that the appellant should serve the respondent with the additional written submissions and the respondent had the right within 14 days thereafter to file written submissions in response.
62 The appellant’s additional written submissions were duly filed and the respondent advised the Full Bench it did not intend to file submissions. The additional written submissions of the appellant, amongst other things, dealt with the issue of the practical consequences of the appeal being determined.
63 In my opinion the Full Bench ought not dismiss the application/appeal on the basis that it is devoid of practical consequences. I will explain this opinion after my reasons for deciding the substance of the appeal. It is easier to do so at that juncture.

Leave to Appeal
64 The appellant submitted that s49(2a) of the Act did not apply to the decision of the Tribunal because the order made was not a “finding”. It was submitted the order was not made in the course of the proceedings but finally decided, determined or disposed of the matter to which the proceedings related. The difficulty with this contention is that the intent and content of the order was that it did not finally dispose of the proceedings. This is apparent from orders 2(e) and 4(c).
65 The appellant submitted that if the order of the Tribunal did constitute a finding then the matter was of such importance that in the public interest the proposed appeal should lie. In the notice of appeal there were seven particulars supporting this contention. In summary these were:-
(i) The proposed appeal raised important questions of jurisdiction relevant to all references to the Tribunal pursuant to s51A of the OSH Act.
(ii) The Full Bench had not previously considered these issues.
(iii) It was in the public interest that the parties be provided with an opportunity to be heard. It was submitted the Tribunal did not provide this.
(iv) The orders of the Tribunal were beyond jurisdiction so that the order could not be enforced. It was within the public interest that orders be enforced.
(v) It was important that there be certainty about the possible outcomes of a reference to the Tribunal pursuant to s51A of the OSH Act.
(vi) That part of the order which cancelled the notices would be an encouragement to people to whom notices were issued pursuant to s48 and s49 of the OSH Act to apply to seek a review of the notices pursuant to s51A of the OSH Act in the hope that even if the circumstances relating to the notice did not reveal error or lack of evidence to support it being issued, the Tribunal will cancel the notices. It was accordingly in the public interest to resolve the capacity of the Tribunal to make the type of orders which it did.
(vii) It was in the public interest to resolve the issue of whether notices issued pursuant to s48 or s49 of the OSH Act could be cancelled as it potentially inhibited the ability of notices to achieve compliance with the OSH Act.

66 There is overlap in these particulars. In my opinion particulars (i), (ii) and (iii) sufficiently expressed the appellant’s position.
67 In Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247 I discussed the requirements of s49(2a) of the Act at paragraphs [12]-[14] of my reasons, which were agreed with by Gregor SC and Smith C. I there stated:-
“12 The appellant accepted that the order made by the Commission was a “finding” as defined in s7 of the Act. This was because the order did not finally dispose of the matter before the Commission at first instance. Accordingly, the appellant also accepted that s49(2a) of the Act applied to the appeal. This subsection provides that an appeal does not lie from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie. The subsection focuses the attention of the Full Bench upon “the matter”. It seems that a determination is to be made as to whether the matter, as opposed to individual appeal grounds, is of such importance that, in the public interest, an appeal should lie. Accordingly, it seems that the Full Bench may not form the opinion that an appeal should lie on only some of the grounds.
13 In RRIA v AMWSU and Others (1989) 69 WAIG 1873, the Full Bench at 1879 said that the words “public interest” in s49(2a) of the Act should not be narrowed to mean “special or extraordinary circumstances”. As stated by the Full Bench, an application may involve circumstances which are neither special nor extraordinary but which are, because of their very generality, of great importance in the public interest. The Full Bench, on the same page, went on to say that important questions with likely repercussions in other industries and substantial matters of law affecting jurisdiction can give rise to matters of sufficient importance in the public interest to justify an appeal. The RRIA decision was cited with approval and applied in the recent Full Bench decision of CSA v Shean (2005) 85 WAIG 2993 at 2995-2997.
14 The forming of the opinion referred to in s49(2a) of the Act involves a value judgment and is clearly a matter which the Full Bench needs to assess on a case by case basis, having regard to the issues which the proposed appeal will give rise to.”

68 The emphasis in s49(2a) is upon the “matter” and the “public interest”. The public interest is the required element not what might be important to the parties.
69 In this matter I am satisfied, on the basis of particulars (i) and (ii) that it is in the public interest that the appeal should lie. As submitted, the proposed appeal raises important questions about the jurisdiction and powers of the Tribunal, which in my opinion ought to be resolved by the Full Bench. I do not think particular (iii) of itself raises a matter of “public interest”. The asserted denial of being heard may well have been important to the parties at the hearing and form a valid ground of appeal but it is not a matter of public interest. Although having the right to be heard is an important part of procedural fairness, its application in this case does not, in my opinion, satisfy the public interest criteria. For the reasons mentioned however in my opinion the Full Bench ought to make an order that the appeal should lie under s49(2a) of the Act.

Analysis of the Tribunal’s Order
70 It is helpful to clarify what the order purported to do to decide the grounds of appeal.
71 Orders 1 and 3 firstly purported to revoke part of what was described as the appellant’s “notice”. Order 1 revoked that part of the “notice” about the first improvement notice and order 3 that part of the “notice” about the second improvement notice. Secondly orders 1 and 3 purported to cancel the first and the second improvement notices. Thirdly orders 1 and 3 set out the time when the orders would take effect, being from the issuing of the order.
72 Orders 2 and 4 were orders requiring actions to be taken about the subject matter of the first and second improvement notices. Order 2 was about the remedial work to be done to the pressure vessels. Order 4 was about the registration and operation of the pressure vessels. Orders 2(e) and 4(c) required the appellant or a knowledgeable delegated representative to inspect the “modifications” contained in orders 2 and 4 and report back to the Tribunal by the dates there specified. Order 5 was ancillary to orders 2 and 4 and was about the access of people to the area of the pressure vessels. Order 6 required the publication of the order to the people there named.
73 From the Tribunal’s reasons it seems apparent that the Tribunal purported to make all orders under the jurisdiction and powers in s51A(5)(c) of the OSH Act. That is the Tribunal revoked the decisions of the appellant and then purported to make a decision with respect to the notices as it saw fit.

Grounds of Appeal – Overview
74 Ground 1 asserts a failure to comply with s26(3) of the Act or alternatively, “otherwise provide the parties with an opportunity to be heard” about whether the Tribunal had jurisdiction to make the orders it did. Ground 2 asserts the Tribunal did not have jurisdiction to make orders 2, 4, 5 and 6. Ground 3 asserts error of law in the making of orders 1 and 3 because, in effect, in revoking the appellant’s decision and cancelling the notices, the Tribunal took into account an irrelevant consideration and there was no evidence to support the orders.
75 Counsel for the appellant argued the appeal grounds in ascending numerical order. In my opinion it makes sense to consider the grounds in the opposite way. This is because if the Tribunal erred in law and had no jurisdiction to make orders 1-6 it does not matter whether an opportunity to be heard was provided or not. The orders will be required to be set aside in any event. The issues relevant to grounds 2 and 3 are interrelated.

Ground 3
(a) Statutory Construction
76 The determination of both grounds 2 and 3 requires an understanding of Part 6 of the OSH Act. Part 6 is headed “Improvement and prohibition notices”. I have earlier quoted relevant ss48, 49, 51 and 51A of the OSH Act which are relevant. The statutory construction of the OSH Act must take place in accordance with the usual principles. I summarised these in Thiess Pty Ltd v The AFMEPKU (2006) 86 WAIG 2495 at paragraphs [54]-[57]. I said there, with the agreement of Smith and Harrison CC:-
“54 In Wilson v Anderson (2002) 213 CLR 401, Gleeson CJ said at [8]:-
“In the construction or interpretation of a statute, the object of a court is to ascertain, and give effect to, the will of parliament. Courts commonly refer to the “intention of the legislature”. This has been described as a “very slippery phrase”, (Salomon v Salomon & Co Ltd [1897] AC 22 at 38, per Lord Watson) but it reflects the constitutional relationship between the legislature and the judiciary… Parliament manifests its intention by the use of language, and it is by determining the meaning of that language, in accordance with principles of construction established by the common law and statute, that courts give effect to the legislative will.”

55 In Attorney General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485 at [113], Kirby J reiterated that it is necessary when engaging in the exercise of statutory construction to focus attention “upon the crucial language of the relevant provisions before other aids to construction are considered”.
56 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ at [69] quoted from the reasons of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 320, the effect that the meaning of a statutory provision must be determined “by reference to the language of the instrument viewed as a whole”.
57 Although the focus must be on the meaning of the language used in the statute, s18 of the Interpretation Act, requires that in “the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object”. As stated however by the Full Federal Court in R v L (1994) 122 ALR 464 at 468/9, the command contained in provisions like s18 of the Interpretation Act “can have meaning only where two constructions are otherwise open”, and the section “is not a warrant for redrafting legislation nearer to an assumed desire of the legislature”.”

(b) Review of Improvement and Prohibition Notices
77 Consistently with its heading, Part 6 of the OSH Act allows for the issuing of improvement notices and prohibition notices by an inspector. The issuing of an improvement notice or a prohibition notice may be referred for review to the appellant under s51. A further review, of the decision of the appellant, may be referred to the Tribunal under s51A.
78 In my opinion it is plain that an inspector’s power to issue improvement and prohibition notices are complementary. They are not alternative powers or processes. They are both methods aimed at achieving the objectives set out in s5 of the OSH Act. A key object of the Act may be summarised as being the promotion, protection and enhancement of the safety and health of people at work.

(c) The Tribunal’s Error
79 The reason why the Tribunal purported to revoke the decision of the appellant about the first and second improvement notices was because at the time of the appellant’s decision the “risk remained ‘serious and imminent’”. ([84]). Earlier, in paragraph [80] the Tribunal said the one contentious issue for it to consider was “whether at the time the risk referred to involved or would involve ‘imminent’ injury or harm to any person as required by s49(1) of the Act”. With great respect I do not understand how the Tribunal arrived at the conclusion that this was so. This issue was not put before the Tribunal by the parties by the terms of the reference or submissions at the hearing. It was not submitted by either party that Senior Inspector Ebert and the appellant were in error in the former issuing improvement notices and the latter affirming them with modification, because prohibition notices ought to have been issued instead. Nor was this brought up by the Tribunal at the hearing. Although this overlaps with ground 1, it seems clear the earliest this was raised was perhaps with the delivery of the minute of proposed order and more fully when the reasons for decision were published. In my opinion, for reasons more fully explained below, whether or not a prohibition notice could or should have been issued by Senior Inspector Ebert or whether circumstances existed which could support the issuing of a prohibition notice at the time of the appellant’s review and decision, were not considerations relevant to whether the decision of the appellant ought to be revoked. Accordingly appeal ground 3 is established.
80 In addition as pointed out by the appellant, the phraseology used by the Tribunal in its reasons was not in any event at all times consistent with wording of s49(1) of the OSH Act. As stated in the appellant’s outline of submissions:-
“42. In any event, the Tribunal mis-stated and mis-applied the criteria for the issuing of a prohibition notice as: “an imminent and serious risk” (Reasons for Decision para 75); “a serious risk of injury or harm” (para 80); “a serious risk” (para 80); “imminent injury or harm” (para 80); “risks considered by the Tribunal to be imminent and serious” (para 82); “the risk remained serious and imminent” (para 84); “the absence of any information indicating the plant can operate safely” (para 88); “the risk … was imminent and serious” (para 90); and “having regard for the definition of ‘practicability’ under the Osh Act, together with the presence of risks considered to be imminent and serious” (para 90).”

(d) Relevant Criteria for Notices
81 I accept the appellant’s submission that the only criteria which are necessary for an inspector to issue an improvement notice is one of the two set out in s48(1)(a) and (b) of the OSH Act. An inspector may form the opinion that a person has contravened or is contravening the OSH Act. At that point the discretion to issue an improvement notice is triggered. The purpose of an improvement notice is to cause the contravention to be remedied. Section 48(2) provides for the contents of an improvement notice. Nowhere in s48 nor s49 is there any text or context which prevents an inspector issuing an improvement notice, or makes it wrong in law or fact to do so, where the circumstances also might exist for the issuing of a prohibition notice.
82 The criteria governing the issuing of a prohibition notice is different from an improvement notice. They may be broken down into the following elements:-
(i) An activity is occurring or may occur at a workplace.
(ii) An inspector is of the opinion that the activity involves or will involve a risk.
(iii) That risk is of imminent and serious injury to, or imminent and serious harm to the health, of any person.

83 As stated by Franklyn J in Wormald Security at page 3, “serious and imminent” qualify the injury/harm, not the risk. When those circumstances exist an inspector may issue a prohibition notice to the person carrying on the activity or who may be reasonably presumed to have control over the activity (s49(1) of the OSH Act). The purpose and effect of a prohibition notice is that it prohibits “the carrying on of the activity until an inspector is satisfied that the matters which give or will give rise to the risk are remedied” (s49(1)).
84 Accordingly, whilst the criteria for the issuing of an improvement notice is a contravention of the OSH Act, no such criteria is required to issue a prohibition notice. (See Wormald Security page 3). The effect of a prohibition notice is to stop an activity which an inspector believes involves or will involve a risk of the type described in s49(1). The marking of plant under OSH Regulation 2.9 can occur when an improvement or prohibition notice is issued. The consequence of a mark being placed is the use of the plant must stop. Therefore any activity involving the use of the plant is stopped.

(e) Review by the Appellant
85 As stated an improvement notice or prohibition notice may be referred for review to the appellant by the people specified in s51(1) of the OSH Act. The scope of the review by the appellant is set out in s51(5) of the Act. The appellant “shall inquire into the circumstances relating to the notice”. The reference to “the notice” is clearly to the improvement or the prohibition notice which has been issued. After undertaking the inquiry, s51(5) provides the appellant with three alternative powers which may be exercised. They are to affirm the notice, affirm the notice with such modifications as seem appropriate or cancel the notice. Section 51(5) then provides that subject to s51A the improvement or prohibition notice has effect or ceases to have effect accordingly.
86 Each of the appellant’s powers under s51(5) are about and directed to “the notice”. In this case, the subject of the referral to the appellant was the first and second improvement notices. In conducting the review, the appellant had no power to revoke or cancel the improvement notices and in their place issue a prohibition notice, or something similar. Indeed the powers of the appellant under s51(5) are tightly constrained as I have set out.
87 As referred to earlier, when Wormald Security was decided the jurisdiction to review which the appellant now possesses under s51 was held by the Commission. Accordingly, the observations by Franklyn J (with whom Ipp J agreed) in Wormald Security about the nature of the then review by the Commission are now apposite to that undertaken by the appellant. At page 4 his Honour said (with the “Commissioner” meaning the Commission and not the appellant):-
“A person to whom a prohibition notice is issued is entitled to refer that notice to the Industrial Relations Commission for review as of right (s51(1)). On such reference the Industrial Relations Commission (‘the Commissioner’) is required and obliged to “inquire into the circumstances relating to the notice”. Having done so he may affirm it as is or with such modification as seems appropriate or cancel it (s51(5)). Those provisions in my opinion make it clear that the review is directed to establishing whether, on the evidence available to the Commissioner, the Inspector was justified in forming the opinion in question.” (emphasis added)

88 Later on the same page Franklyn J added:-
“In other words he must approach the facts and circumstances as found by him on his inquiry as if he were the Inspector determining whether, on those facts and circumstances, he could reasonably form the opinion formed by the Inspector of the particular activity, having regard also to the reasons and matters set out in the notice. If so, he affirms the notice. If not, depending on the opinion formed by him as to such matters, he either affirms it with modifications or cancels it as is appropriate.”

89 Accordingly when an improvement notice is issued the question for the appellant is whether the inspector was justified in forming the opinion set out in s48(1) of the OSH Act. The forming of this opinion does not depend on whether a prohibition notice could also have been issued, or whether it was preferable that a prohibition notice had been issued.

(f) The Further Review by the Tribunal
90 As stated the “decision” of the appellant may be referred for further review to the Tribunal under s51A of the OSH Act. It is that “decision” which is the “matter” referred to in s51A(1) and (2) of the OSH Act. (The Tribunal’s orders 1 and 3 referred to the “notice” of the appellant whereas s51A(3) is about a review of the “decision made under s51” of the OSH Act by the appellant. Nothing turns on this however). The “notice” of the appellant referred to in s51A(1) and s51(6) of the OSH Act is the notice of the decision rather than the decision itself.
91 The method and purpose of the review described by Franklyn J in Wormald Security, and now applicable to the appellant, in part shapes the nature and contents of any further review by the Tribunal.
92 Section 51A(3) provides that the review of the decision under s51 is in the nature of a “rehearing”. The word “rehearing” is one that has shades of meaning (Building Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620-621, cited with approval in Fox v Percy (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at [207]). Mason J in Sperway at page 621 said that although there was no “absolute rule”, where “a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo …”. At page 622 his Honour said the issue was one of discerning the legislative intent. Here, that is gleaned from the structure of the review process and s51A of the OSH Act.
93 Section 51A(5) provides that the Tribunal shall “inquire into the circumstances relating to the notice”. This is the same expression as used in s51(5). In my opinion the “notice” referred to is the improvement or prohibition notice, as the case may be, as opposed to the notice of decision of the appellant provided for in s51(6) of the OSH Act. An inquiry into the circumstances relating to the improvement/prohibition notice is thus required. This seems to contemplate the prospect of hearing evidence on the topic, as occurred in this instance. Having inquired into the circumstances, the Tribunal is in a position to review and assess the appellant’s decision. The Tribunal has 3 powers which it may exercise under s51A(5) of the OSH Act. The first two follow the same form as the powers of the appellant in s51(5)(a) and (b). Section 51A(5)(c) of the OSH Act is however cast in different terms to the power of the appellant under s51(5)(c). The latter simply permits the cancellation of the notice whilst the former permits the revocation of the decision of the appellant and the making of “such other decision with respect to the notice as seems fit”. The reference to “the notice” here is to the improvement and prohibition notice and not the notice of the appellant’s decision. To some extent the difference in the power is to accommodate the fact that the Tribunal exercises a higher level of review than the appellant. Accordingly there are two levels of decision which have already occurred, the inspector issuing the notice and the appellant’s review. The OSH Act allows for the Tribunal in certain circumstances to make orders which impact on both of the prior levels of decision.
94 The OSH Act does not contain express criteria to guide the Tribunal in the exercise of its powers contained in s51A(5). In other words it does not set out the particular facts and circumstances which may or may not lead to an affirmation or revocation of the decision of the appellant. It must be remembered however that the role of the Tribunal is to “further review” the “matter”, which is the appellant’s decision. (See also s51A(3)). The method for and purpose of the making of the appellant’s decision has been set out earlier by reference to Wormald Security. As stated it is no part of the review of an improvement notice to consider whether a prohibition notice could or should have been issued in addition to or instead of that notice. In my opinion it is also therefore no part of the “further review” by the Tribunal. The Tribunal in effect, is to inquire into the circumstances relating to the notice to see if the appellant’s decision about the justifiability of the inspector forming the opinion he did, is in turn justified. This construction is enhanced by each of the powers in s51A(3) being directed to “the decision of [the appellant]”. It would be a strange outcome in my opinion if the powers of the Tribunal, after a review of the appellant’s decision, were substantially different to and broader than those of the appellant.
95 If there be any ambiguity in the Tribunal’s powers under s51A(5) of the OSH Act, reference to the Second Reading Speech of the Minister, in support of the Occupational Safety and Health Legislation Amendment and Repeal Bill 2004, which, when passed and commenced, inserted s51A, supports the above construction. (See s18 of the Interpretation Act). The Minister said on 8 April 2004, (Parliamentary Debates), page 2019:-
“Safety and health tribunal: The Act currently provides for a number of matters to be referred to a safety and health magistrate for resolution. The Bill reflects the general principle that prosecutions should continue to be dealt with by the courts, while providing that more administrative matters, such as the entitlement of an employee to wages and conditions under the stop-work provisions, and appeals of the commissioner’s decisions in relation to reviews of notices, for example, should be dealt with by a specialist safety and health tribunal.”

96 The notion of an “appeal” against the appellant’s decision is not consistent with the Tribunal having much broader powers than the appellant – including to traverse at large the issue of health and safety that gave rise to an improvement notice, revoking the appellant’s decision, cancelling the notice and the substitution of orders it thinks fit about the health or safety of the workplace in question.

(g) Conclusion on Ground 3
97 Ground 3 has been established because the Tribunal relied on an irrelevant consideration in deciding to revoke the improvement notices in orders 1 and 3. There was no basis on the evidence consistent with the review which the Tribunal was required to undertake which reasonably permitted the revocation of the appellant’s decision. In any event the marking of the plant ought to have had the effect of prohibiting the operation of the machinery which the Tribunal was concerned about.

Ground 2
(a) Necessity to Decide the Ground
98 It is strictly unnecessary to decide ground 2. This is because the Tribunal only has the power to make an “other decision” under s51A(5)(c) of the OSH Act, where the appellant’s decision has been revoked. I have decided the Tribunal erred in law in deciding to revoke the two improvement notices. Therefore the power to make an “other decision” did not arise. Nevertheless I will decide it as the ground involves important issues and was fully argued by the appellant’s counsel.

(b) “As Seems Fit”
99 The appellant submitted that given the scope of the Tribunal’s inquiry was limited to “the circumstances relating to the notice” it was “logical” that the decisions it could make were also limited to decisions about the notice. It was also submitted the Tribunal construed the words “as it seems fit” in s51A(5)(c) of the OSH Act in isolation from the words “with respect to the notice”.
100 In my opinion, from a fair reading of the reasons for decision of the Tribunal as a whole, it acted on the basis it was permitted to consider at large the facts and circumstances that give rise to the issuing of the improvement notices, and if it thought workplace safety could have been enhanced by taking some different course to that of the inspector and the appellant, it could revoke the appellant’s decision; and then make any order it saw fit consistently with the objects set out in s5 of the Act. As set out earlier, in my opinion, the jurisdiction and powers of the Tribunal were not so broad.
101 In my opinion the Tribunal’s application of the expression “as seems fit” in paragraphs [64] and [85] of its reasons, did not adequately take into account “with respect to the notice”, the preceding words in s51A(5)(c). Although the expression was quoted in paragraph [63] it was not referred to in paragraph [64] where the Tribunal set out the nature of the decision it thought it was able to make. Additionally, in paragraph [85] although again quoting that part of s51A(5)(c) which contains “with respect to the notice”, the Tribunal concluded “‘it seems fit’ [sic] as those words are intended in s 51A(5)(c) to prohibit the operation of the machinery effective on and from the issuance of any orders”. In my opinion this was not a decision “with respect to the notice”. As I have said the “notice” in this instance was the two improvement notices. The Tribunal may make a decision with respect to or about “the notice”, not the facts and circumstances which existed at the workplace in question and gave rise to the issuing of the notice.

(c) “With Respect to the Notice”
102 The appellant was critical of the reliance by the Tribunal of only part of paragraph [12.7] of Pearce and Geddes to support its understanding of this expression. The heading to paragraphs [12.5]-[12.14] of Pearce and Geddes, Statutory Interpretation in Australia, 6th edition, is “Drafting Expressions”. Paragraph [12.7] is about “‘In respect of’, and similar phrases”. The passage quoted by the Tribunal was:-
“… the expression is ‘of broad import’: per Toohey and Gaudron JJ in O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374; 92 ALR 213 at 226. In the same case, McHugh J said (at 376; 228) the phrase ‘requires no more than a relationship, whether direct or indirect, between two subject matters’. The words are ‘among the broadest which could be used to denote a relationship between one subject matter and another’: per Lehane J in Nordland Papier AG v Anti-Dumping Authority (1999) 93 FCR 454 at 461; 161 ALR 120 at 126. However, the relationship must be between distinct subjects or subject matters.”

103 The appellant points out that the Tribunal did not refer to those parts of the paragraph which emphasise the relevance of context. For example in paragraph [12.7] Pearce and Geddes also say:-
“However, Deane, Dawson and Toohey JJ in Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 at 653; 81 ALR 260 at 267 described this as ‘going somewhat too far’. They continued: ‘The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends’. The same parties were before the court again in Technical Products Pty Ltd v State Government Insurance Office (1989) 167 CLR 45; 85 ALR 173. This time Brennan, Deane and Gaudron JJ (at 47; 175) described the words as having ‘a chameleon-like quality in that they commonly reflect the context in which they appear’.”

104 The authors also refer to FCT v Holmes (1995) 58 FCR 151 at 155; 138 ALR 59 at 62 as another example of the meaning of the expression being dictated by its context. Reference is also made to “the useful summary of the cases in Jennings Constructions v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 465 at 480-2”. There, Olsson J at page 481 said, “the exact width of the expression will very much depend on the precise context in which it appears and a consideration of the purpose or object underlying the relevant legislation (Butler v Johnston, Guild and Somes (1984) 55 ALR 268).” This observation was agreed with by Doyle CJ at page 469 whose reasons were in turn agreed with by Prior J and Nyland J.
105 The reasons of the joint judgment in Technical Products Pty Ltd v State Government Insurance Office (1989) 167 CLR 45 at 47; 85 ALR 173, quoted by Pearce and Geddes were cited with approval by McHugh J as part of the majority in Solomons v District Court of New South Wales and Others (2002) 211 CLR 119 at [45].
106 Finally, as summarised by Le Miere J, with whom Wheeler and Pullin JJ agreed, at paragraph [31] in Bennett v Higgins (2005) 146 IR 205; (2005) 85 WAIG 3653:-
“[31] The phrase "in respect of" has a very wide connotation and has been said to have the widest possible meaning of any expression intended to convey some connection or relation between two subject-matters to which the words refer: McDowell v Baker (1979) 144 CLR 413 and 419 per Gibbs J, but reflects the context in which it appears: Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45 at 47 and 51; Commissioner of Taxation (Cth) v Scully (2000) 201 CLR 148 at 171.”

(d) The Tribunal’s Error
107 I accept the submission that the opinion of the Tribunal, about the breadth of its power to make an order, “with respect to the notice as seems fit” did not take sufficient account of the context within which the expression appeared. The relevant context was the structure of the OSH Act and the nature of the review by the appellant and the further review by the Tribunal. The expression “with respect to” did not fix upon the facts and circumstances which gave rise to the notice but “the notice” itself. I accept the submission of the appellant that orders 2 and 4 and the ancillary orders 5 and 6 were not “with respect to” the first and second improvement notices and were therefore beyond the jurisdiction and power of the Tribunal to make.
108 As to what might be “such other decision with respect to the notice as seems fit”, the appellant pointed out that if the Tribunal exercises the powers set out in s51A(5)(a) or (b), the consequence for the notice are apparent. It is either affirmed, affirmed with any modifications made by the appellant or affirmed with different modifications made by the Tribunal. Where the decision is to revoke the appellant’s decision to affirm the notice however the consequence for the notice is not clear. The power of the Tribunal to “make such other decision with respect to the notice as seems fit” allows the Tribunal to make a decision about the status of the notice as a consequence of the revocation of the appellant’s decision. The Tribunal may for example decide the notice will cease to have effect.
109 I also accept the appellant’s submission that if s51A(5)(c) of the OSH Act enabled the Tribunal to issue orders such as those in paragraphs 2(d), 4(b) and 5, the Tribunal could prohibit an activity without satisfying itself of any of the matters set out in s49 of the OSH Act. I accept that, in the context of a staged process of review, the granting of such a power would be expected to be explicit. This is not present and the text and context suggests the more limited power referred to earlier.
110 Another relevant factor is that the penalty for non-compliance with an order of the Tribunal is a maximum of $2000 (s83(4) of the Act). In contrast the penalty for non-compliance with a prohibition notice by a body corporate with no prior record for the same offence is $50,000 (s54 and s3A(1)(b)(ii) of the OSH Act). This suggests the legislature did not intend s51A(5)(c) of the OSH Act to give the Tribunal the power to make orders similar to the issuing of a prohibition notice. As colourfully set out in the appellant’s Further Written Submissions, the way in which the Tribunal construed its jurisdiction and powers involved a “transmogrification” of its role “from that of a reviewer of a decision [by the appellant] under section 51 of the Osh Act, to a that of a law enforcer with a role similar to WorkSafe Inspectors, but without any of the limitations which the Osh Act imposes upon the powers of WorkSafe Inspectors”. ([42]). I do not accept the legislators intended the Tribunal to be an entity of this type.
111 For these reasons appeal ground 2 is also established.

Ground 1

(a) Necessity to Decide the Ground
112 Again it is not strictly necessary to decide this ground, but in deference to the argument of the appellant’s counsel and because the ground involves issues of general importance I will do so.

(b) Section 26(3) of the Act
113 The ground is drafted on the premise that the Tribunal had a duty under s26(3) of the Act or “otherwise” to allow the parties to make submissions about the issues described in the ground. Section 26(3) of the Act is listed in s51I(1) of the OSH Act as applying to and in relation to the exercise of jurisdiction by the Tribunal. Section 26(3) provides:-
“(3) Where the Commission, in deciding any matter before it proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission shall, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information.”

114 In my opinion this aspect of the ground is not established. This is because the Tribunal did not take into account “any matter or information that was not raised before it on the hearing of the matter”. In making the orders the Tribunal only relied upon evidence and information of which the parties were aware.

(c) Applicability of Procedural Fairness
115 As discussed with counsel during the hearing of the appeal, the use of the word “otherwise” in ground 1 is broad enough to encompass a denial of “common law” procedural fairness by the Tribunal. As stated by Buss JA with the agreement of Wheeler and Pullin JJA in Re Minister for Resources; Ex parte Cazaly Iron Ore Pty Ltd [2007] WASCA 175 at paragraph [267]:-
“[267] Absent a clear legislative intention to the contrary, a statutory power must be exercised with procedural fairness to parties whose interests might be adversely affected by its exercise. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 27–28 [81]–[83].”

116 The contents of s26(3) of the Act does not cover the field of requirements of procedural fairness by the Commission or Tribunal or provide any “clear legislative intention”. Nor does the OSH Act in giving the Tribunal jurisdiction to conduct a “further review” by way of an “inquiry” and “rehearing”.
117 Although the observations of Buss JA were made in the context of an administrative decision, procedural fairness must ordinarily be provided to parties to court and arbitral hearings – because almost axiomatically their interests are potentially affected. Accordingly the exercise by the Tribunal of its jurisdiction and powers had to be in a procedurally fair way.
118 One of the fundamental requirements of procedural fairness is a right to be heard. In Jeilles v Secretary, Department of Employment and Workplace Relations [2007] FCA 1590, Logan J said at paragraph [23]:-
“[23] A convenient summary of the content of procedural fairness or natural justice, as sometimes it’s called, as known to our law, is to be found in a leading Australian text on administrative law, namely: Aronson, Dyer and Groves, “Judicial Review of Administrative Action”, Third Edition, at p 370. There, the learned authors state:
There are two traditional rules of natural justice. The hearing rule requires a decision maker to hear a person before making a decision affecting the interests of that person.”

119 The hearing rule clearly applied to the hearing and determination by the Tribunal of the referral.

(d) Contents of the Hearing Rule
120 The contents of procedural fairness do not have a fixed content. They have been described as having a “chameleon like”, “flexible quality” depending upon, amongst other things, the relevant legislative scheme, the nature of the judicial hearing, inquiry or administrative decision and the circumstances of the individual case. (See Brennan J in Kioa v West (1985) 159 CLR 550 at pages 612-613).
121 As a result and as stated in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 225 CLR 88, in the joint judgment of the 5 sitting members of the court, at paragraphs [14]-[16]:-
“[14] … Rather, as procedural fairness is directed to the obligation to give the appellant a fair hearing, it is necessary to begin by looking at what procedural fairness required the Tribunal to do in the course of conducting its review.
…
[16] … Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.” (The reference to the “Tribunal” was to the Refugee Review Tribunal).

122 This aspect of the reasons of the High Court was applied by the Court of Appeal in Cazaly Iron Ore at [280]. Importantly, as stated by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]:-
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”.

123 The Full Court in VEAL cited this paragraph in support of the proposition that “the application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case”. ([25]).
124 A relevant illustration of this is the decision of the IAC in BHP Billiton Iron Ore Pty Ltd (BHPB) v Construction, Forestry, Mining and Energy Union of Workers (2006) 151 IR 361; (2006) 86 WAIG 1193; [2006] WASCA 549. This was an appeal against a decision of the Full Bench of the Commission. One issue which the IAC had to consider was whether the President had denied BHPB procedural fairness in the way he decided the appeal. The President, in his reasons, departed from the basis on which the parties conducted the application at first instance, which was also the basis on which the Tribunal decided the application and BHPB conducted the Full Bench appeal. The President did this without any warning being given to the parties. Le Miere J (with whom Wheeler and Pullin JJ agreed) at paragraph [39] said:-
“[39] … By not alerting the parties to the possibility that he might depart from the basis upon which the parties had conducted the case, the President failed to afford them a reasonable opportunity to put what ever case they might have wished to put in the circumstances. BHPB was denied the right to be heard in relation to that matter.”

125 In coming to this conclusion Le Miere J cited authorities which are also relevant to the present appeal. They included Pantorno v The Queen (1989) 166 CLR 466 and cases which have followed it including Monaco v Arnedo Pty Ltd (unreported); Full Court, S Ct of WA; Library No 940481; 6 September 1994, Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 and Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1; [2005] NSWCA 208. In Seltsam, Ipp J, with whom Mason P agreed, reviewed a number of cases including Monaco and said at paragraph [78]:-
“[78] These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.”

(e) Application of the Hearing Rule
126 In my opinion, this aspect of the “hearing rule” applied to and was breached by the Tribunal as:-
(i) In the reference before the Tribunal the respondent said it was “happy to comply” with the two notices of improvement but wanted to be “able to operate” whilst “trying to meet these requirements”.
(ii) For this to happen the marking of the plant needed to be removed. This is what the respondent sought. (See for example the respondent’s counsel’s opening at T27, 32 and 33, summarised earlier; and counsel’s closing at T122 and 125 ff, also summarised earlier). This issue in turn lead to the question of whether the Tribunal had jurisdiction to review the marking.
(iii) The respondent also argued the appellant’s decision could be revoked or modified to “excise” the marking.
(iv) There was some discussion and evidence about the possible issuing of a prohibition notice by the Senior Inspector. The Tribunal did not however inform either counsel that:-
(aa) A relevant consideration in deciding the further review was whether the inspector ought to have issued a prohibition notice, or the circumstances to issue a prohibition notice existed at the time of the appellant’s decision.
(bb) This was a possible basis for the appellant’s decision to be revoked.
(cc) The Tribunal was contemplating making orders of the nature of what became 2, 4, 5 and 6.
(dd) The Tribunal therefore believed it had the jurisdiction and power to make these types of orders.
(v) These issues were not within the reasonable contemplation of the parties as being relevant to the outcome of the further review. They were beyond the boundaries of both the reference and way the parties conducted the case.
(vi) Counsel for the appellant and respondent therefore had no opportunity to lead evidence or make submissions about them.
(vii) There was accordingly a breach of procedural fairness.

(f) Conclusion – The Tribunal’s Error
127 In this combination of circumstances in my respectful opinion the hearing of the further review was not conducted in a procedurally fair way. The appellant suffered “practical injustice” as it did not get the opportunity to call evidence or make submissions about the method and basis upon which the Tribunal decided the further review. If the Tribunal had provided this opportunity, it may be that the appellant and/or the respondent would have been able to persuade it that it did not have the jurisdiction or power to make the orders which it was contemplating.
128 For these reasons in my opinion ground 1 has also been established.

Determination of the Appeal
129 I earlier referred to the issue of whether there was any practical consequence of the appeal being determined. It is not the role of the Full Bench to provide advisory opinions on academic points which do not affect the rights and interests of the parties. (See Civil Service Association of Western Australia Incorporated v The Commissioner of Police, Western Australian Police (2006) 86 WAIG 639 at [11]). The Full Bench will therefore not decide an appeal where the issues or questions raised are “useless”, “merely hypothetical” or “dead”. (Veloudos and Others v Young (1981) 56 FLR 182 at 190).
130 In the Further Written Submissions the appellant’s counsel set out what she considered to be “the practical implications of the appeal”. In summary these were that if the orders of the Tribunal were set aside this would:-
(i) Enliven the two improvement notices which would require compliance, enable enforcement and expose the respondent to risk of penalty if it did not comply with the notices.
(ii) Enliven the mark placed by Senior Inspector Ebert on the pressure vessels pursuant to OSH Regulation 2.9 with consequences of prohibition, enforcement and exposure to penalty.
(iii) Remove the entitlement granted by the Tribunal to the respondent by order 4(b) to operate the pressure vessels after 10 August 2007 regardless of whether they were registered or safe to operate.
(iv) Remove the possibility that the appellant would not be able to prosecute the respondent for failure to register the pressure vessels because by order 4(a) the Tribunal imposed its own requirement enforceable pursuant to s83 of the Act and the principle of double jeopardy and issue estoppel may prevent the respondent being prosecuted twice for the same act or omission.

131 In her oral submissions at the hearing of the appeal the appellant’s counsel also said that if a workplace inspector attended the respondent’s workplace in the future and saw the plant was still being used whilst not registered, an improvement notice as a tool of enforcement may not be available to the inspector, because the Tribunal had decided it was not appropriate and instead made its own orders.
132 The lapse of time has to some extent overtaken the relevance of the improvement notices. The appellant’s decision was that both the first and second improvement notices were modified by making 10 August 2007 the date for compliance. These decisions were purportedly revoked by the Tribunal on 15 June 2007. The remedial work required by the Tribunal’s order 2 was to be completed by close of business, 18 June 2007 and be reported back to the Tribunal by 19 June 2007. Order 4 required prohibition from operation of the pressure vessels by close of business on 10 August 2007 except for the purposes described in that order. The application/appeal was not heard until after all of these dates.
133 As set out earlier however the entitlement to mark plant under OSH Regulation 2.9 is dependent upon an improvement notice or prohibition notice being issued. The Tribunal purported to cancel the two improvement notices on 15 June 2007. Although it is not a matter which needs to be finally determined in this appeal, it is at least arguable that the cancellation of the notices led to the mark either no longer applying, being invalid, or incapable of enforcement. It appears that the respondent was quite possibly still using the plant on 15 June 2007 and perhaps thereafter. If this did occur any breach of OSH Regulation 2.9 is possibly not enforceable because of the revocation of the improvement notices by the Tribunal on the morning of 15 June 2007. By the same token however order 4(a) of the Tribunal could not be enforced because it was beyond jurisdiction.
134 Additionally I think there is merit in submission (iii) above. Submission (iv) I consider to be unlikely as a matter of law or fact. I also think there is some merit in the submission that if the plant was still being used or was used again and the orders of the Tribunal were not set aside, it would be unclear whether an inspector could properly issue an improvement notice given the decision and orders made by the Tribunal and its reasons for decision.
135 Overall I am not convinced that this is a case where the issues are “academic” or “dead” so as to cause the appeal to be dismissed. In addition and with respect, the Tribunal misconceived the nature and function of the further review and the scope of its powers. For that reason the Tribunal made orders which exceeded its jurisdiction. In this combination of circumstances it is appropriate to set aside the orders made.

The Review of the Occupational Safety and Health Act 1984 – The Hooker Report
136 During the hearing of the appeal reference was made to the most recent review under s61 of the OSH Act carried out by independent barrister Mr Richard Hooker of Wickham Chambers. (Final Report: Review of the Occupational Safety and Health Act 1984, 6 December 2006 (the Hooker Report)). The issue of whether the Full Bench should take into account any relevant aspect of the Hooker Report was raised during the hearing of the appeal. In the appellant’s Further Written Submissions it was submitted it would be an error of law for the Full Bench to consider the Hooker Report in determining the appeal. This was because it was not the type of extrinsic material which either the common law or the Interpretation Act permitted to be considered by a judicial body when construing the meaning of legislation.
137 In my opinion it is not necessary to determine this submission as the appeal can be decided without reference to the Hooker Report. Accordingly I have not considered the report in preparing these reasons for decision.

Minute of Proposed Orders
138 In my opinion, pursuant to s49(5) of the Act, the following orders should be made and a minute published in these terms:-
1. The appeal is upheld
2. The decision of the Occupational Safety and Health Tribunal is quashed.

139 The effect of these orders will be that the decision of the appellant about the two improvement notices will again be operative. Although the appellant sought a substitution of the Tribunal’s orders with orders that the decisions of the appellant about the two improvement notices be affirmed, my present view is that this is unnecessary. If the appellant continues to contend otherwise, submissions can be made by way of a speaking to the minute at the appropriate time.

BEECH CC:
140 I have had the advantage of reading in advance a draft of the Reasons for Decision of His Honour.  I agree that that the appeal should be upheld and with the order proposed.  I have nothing to add.

SCOTT C:
141 I have had the benefit of reading the draft Reasons for Decision of His Honour the Acting President. I agree with those reasons and the orders proposed and have nothing to add.

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