Australian Rail Tram and Bus Industry Union v Aurizon Operations Ltd

1. [1]

   By an Amended Summons filed 23 June 2022, the Australian Rail, Tram and Bus Industry Union (“the Union”) sought relief in relation to a decision given on 11 February 2022 by the second defendant, National Rail Safety Regulator (“the Regulator”) Ms Susan McCarrey, made through her delegate, Mr Peter Doggett, the Chief Operating Officer (“COO”) of the Office of the Regulator (“ONRSR”). The decision varied the accreditation of Aurizon Operations Limited (“Aurizon”) under the Rail Safety National Law 2012 (NSW) (“the National Law”) to permit the first defendant, Aurizon, to utilise crew cars to facilitate national freight operations from New South Wales to Western Australia.

2. [2]

   The Union is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (the “FWRO Act”). The Union contended that Mr Doggett’s determination of Aurizon’s application for variation of its accreditation was invalid as he was not authorised by an Instrument of Delegation issued by the Regulator on 28 August 2020 (“the Instrument”). The Union also contended that the determination was affected by various errors of law which were jurisdictional in nature.

3. [3]

   The Union sought a declaration pursuant to s 75 of the Supreme Court Act 1970 (NSW) that the granting of the variation was invalid and of no effect. Further, or in the alternative, the Union sought an order in the nature of certiorari quashing the decision of the Regulator. In oral submissions, Mr P Boncardo, counsel for the plaintiff, abandoned the declaratory relief sought.

4. [4]

   Aurizon submitted that the Amended Summons should be dismissed with costs because Mr Doggett, as the Regulator’s delegate, had authority under s 69 of the National Law to determine Aurizon’s application to vary its accreditation. Aurizon also contended that Mr Doggett’s decision was not affected by jurisdictional error, and in particular, that he was lawfully satisfied that Aurizon had met the consultation requirements in the National Law in relation to the proposed variation of Aurizon’s accreditation.

5. [5]

   The Regulator submitted there was no error of law or jurisdictional error established by the Union and, in the alternative, submitted that any error was not material error within the meaning of Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 (“Hossain”).

The National Law

1. [6]

   The National Law was the product of a process instigated in June 2009 by the Council of Australian Governments and the Australian Transport Council to establish a single national regulator for heavy vehicles, rail safety and marine safety, as well as a national rail safety investigator. That process, which was undertaken by the National Transport Commission, culminated in uniform national legislation being devised by the Commonwealth, States and Territories for a rail safety regulation regime. South Australia was the jurisdiction chosen to host the national regulator envisaged by the National Law and its Parliament passed the Rail Safety (National Law) South Australia Act 2012 (SA). The New South Wales Parliament adopted the National Law by the Rail Safety (Adoption of National Law) Act 2012 (NSW).

2. [7]

   Section 3(1) of the National Law details that its main purpose is to provide for safe railway operations in Australia. The objects of the National Law are detailed in s 3(2), which provides:

3. [8]

   Section 4 of the National Law contains various definitions of which the following are important in the present context.

4. [9]

   The ONRSR is defined in s 4 to mean “the Office of the National Rail Safety Regulator under Pt 2 Div 1 of the National Law. Pt 2 Div 1 deals with the establishment, functions, objectives and powers of ONRSR. By ss 12(1)-(2) and 13(1), ONRSR is established as a body corporate and accorded functions of, relevantly, administering the accreditation regime under the National Law and monitoring, investigating and enforcing compliance with the National Law.

5. [10]

   Regulator is defined to mean the National Rail Safety Regulator, or an Acting National Rail Safety Regulator appointed under Pt 2 Div 2.

6. [11]

   Section 17(1) of Pt 2 Div 2 of the National Law provides for the appointment of the Regulator, who is appointed because of their high level of expertise in one or more areas of ONRSR’s functions. The functions of the Regulator are detailed in s 19(1) and include (a) being the chief executive of ONRSR and (b) exercising the functions of ONRSR conferred on the Regulator under the National Law or an Act. Section 37(1) of the National Law provides that the Regulator is the chief executive of ONRSR and responsible for its day-to-day management and for the carrying out of functions conferred on the chief executive under the National Law, an Act or by ONRSR. Section 37(2) requires the chief executive to act consistently with ONRSR policies.

7. [12]

   A ‘rail transport operator’ is defined by s 4 to mean “(a) a rail infrastructure manager; or (b) a rolling stock operator; or (c) a person who is both a rail infrastructure manager and rolling stock operator”. Aurizon is a ‘rail transport operator’ and a ‘rail infrastructure manager’ for the purposes of the National Law. ‘Rolling stock’ is defined in s 4 to mean “a vehicle that operates on or uses a railway, and includes [amongst other things] a locomotive, carriage and rail car”. A ‘rolling stock operator’ is a person who has effective control and management of the operation or movement of rolling stock on rail infrastructure for a railway. ‘Rail infrastructure’ is defined by s 4 to mean “the facilities that are necessary to enable a railway to operate safely” and includes railway tracks and associated track structures, associated buildings, workshops, depots and yards, as well as plant, machinery and equipment. A ‘rail infrastructure manager’ is defined as below:

8. [13]

   Section 4 defines ‘railway operations’ to mean, relevantly, the operation or movement of rolling stock on a railway. ‘Railway premises’ are defined to mean land where rail infrastructure is located, workshops or maintenance depots used in connection with the carrying out of railway operations, and premises used in connection with the carrying out of railway operations as well as rolling stock.

9. [14]

   ‘Union’ is defined to mean an employee organisation such as the plaintiff that is registered or taken to be registered under the FWRO Act or an association of employees or contractors (or both) that is registered or recognised as such an association under State or Territory industrial law.

10. [15]

    ‘Rail safety work’ is defined in s 8(1) to mean, amongst other things, the driving or despatching of rolling stock or any other activity capable of controlling or affecting the movement of rolling stock; the constructing, maintaining, repairing, modifying, monitoring, inspecting or testing of rolling stock; and work involving the development, management or monitoring of safe working systems for railways. Employees who perform work on the ‘crew cars’ the subject of the variation application, including those who perform maintenance work on crew cars, are ‘rail safety workers’ for the purposes of s 8(1).

11. [16]

    Clause 29 of Sch 2 to the National Law concerns the delegation of functions authorised by the National Law. Clause 29(2)(a) provides that a delegation may be general or limited. Clause 29(6) deems a delegated function purportedly exercised by a delegate to have been properly exercised unless the contrary is proved. A function properly exercised by a delegate is taken to have been exercised by the delegator pursuant to cl 29(7) of Schedule 2.

12. [17]

    Section 45 of the National Law deals with delegation in the following terms:

13. [18]

    Part 3 of the National Law concerns the regulation of rail safety. Division 3 establishes rail safety duties. Subdivision 1 concerns principles in that respect and therein s 50 provides as follows:

14. [19]

    The duties of various persons are set out in ss 52-56. A ‘rail transport operator’ has a non-transferrable duty under s 52(1) to ensure, so far as is reasonably practicable, the safety of its railway operations. The content of that duty is elaborated, non-exhaustively, by s 52(2)-(4). Relevantly, s 52(2)(a) requires a rail transport operator to ensure, so far as reasonably practicable, that safe systems for the carrying out of its railway operations are developed and implemented. Rail safety workers, when carrying out rail safety work, have a duty under s 56(1) to: (a) take reasonable care of their own safety (b) take care that their acts or omissions do not adversely affect the safety of other persons and (c) comply, so far as they are reasonably able, with reasonable instructions given by the rail transport operator to allow the operator to comply with the National Law.

15. [20]

    Failures by duty holders to comply with their duties are the subject of criminal sanctions in the circumstances detailed in ss 58-60.

16. [21]

    Division 4 of Pt 3 concerns accreditation of rail transport officers in respect of railway operations. The purpose of accreditation is stated in s 61 as follows:

17. [22]

    Section 62(1)(a) proscribes a person carrying out railway operations unless that person is a rail transport operator accredited under Pt 3, or the person has obtained an exemption from compliance with s 62.

18. [23]

    Accreditation may be granted for the purposes detailed in s 63, including: for the carrying out of railway operations for particular parts of a railway; for services or aspects of railway operations specified in the accreditation; or for other activities relating to railway operations considered appropriate by the Regulator and specified in the accreditation.

19. [24]

    Applications for accreditation are dealt with by s 64. An application is, pursuant to s 64(1), to be made to the Regulator in respect of a railway operation carried out or proposed to be carried out by the operator. The content of an application for accreditation is dealt with in s 64(2). Such an application must be in the manner and form prescribed by the Regulator and is to include, relevantly, a description of the safety management system relating to the railway operations and contain “the prescribed information”. Section 64(3) enables the Regulator to require a rail transport operator who has applied for accreditation to supply further information to the Regulator or verify matters by statutory declaration.

20. [25]

    Section 65 precludes the Regulator from granting an accreditation unless the Regulator is satisfied that the applicant has demonstrated certain matters. Section 65(c)(iii) provides as follows:

21. [26]

    If the Regulator is satisfied of the matters dealt with in s 65, it is required by s 67(1)(a) to notify the applicant that the accreditation has been granted with or without conditions or restrictions. If the Regulator is not so satisfied, the Regulator is required by s 67(1)(b) to notify the applicant that the application has been refused.

22. [27]

    Notification of accreditation is required to specify, pursuant to s 67(4)(b)(ii), the scope and nature of the railway operations in respect of which accreditation is granted and the manner in which those railway operations are to be carried out.

23. [28]

    Subdivision 3 of Div 4 of Pt 3 deals with variations to accreditation.

24. [29]

    Section 68(1) permits an accredited person to, at any time, apply to the Regulator for variation of the person’s accreditation. Section 68(2) requires applications for variation to be made if, relevantly, the applicant proposes to vary the scope and nature of the railway operations in respect of which the applicant is accredited. Aurizon’s application for variation was seemingly made in accordance with this obligation.

25. [30]

    An application for variation is required by s 68(3) to be made in the manner and form approved by the Regulator and, relevantly, must specify the details of the variation being sought and contain “the prescribed information”. The “prescribed information” is detailed in Reg 11 of the Rail Safety National Law National Regulations 2012 (NSW) (“Regulations”) to include, relevantly, the details of the scope and nature of the proposed variation, details of the changes that will be made to the applicant’s safety management system if the proposed variation occurs. Regulation 11(d), as follows, requires an application for variation to contain:

26. [31]

    Section 69 of the National Law deals with the determination of variation applications. Section 69(1)−(2) is expressed in the following terms:

27. [32]

    Division 6 of Pt 3 deals with safety management systems. Section 99(1) requires a rail transport operator to have “a safety management system for railway operations in respect of which the operator is required to be accredited” that is in a form approved by the Regulator; provides for systems and procedures to comply with risk management obligations under the National Law; identifies any risks to safety; provides for the systematic assessment of risks; specifies controls to manage risks and includes procedures to monitor and revise the adequacy of those controls. Other matters which must be included in a safety management system are detailed in s 99(2).

28. [33]

    Section 99(3) is of significance in the present matter and is in the following terms:

29. [34]

    Section 101(1) requires a rail transport operator to implement its safety management system. Section 101(2) requires that a rail transport operator must not, without reasonable excuse, fail to comply with its safety management system for its railway operations.

Factual Background

1. [35]

   Aurizon is an accredited Rail Transport Operator under the National Law, being accredited as both a ‘rail infrastructure manager’ and a ‘rolling stock operator’. Aurizon’s business provides freight services involving the transportation and delivery of mining, metal, industrial and agricultural freight. Aurizon first obtained accreditation to conduct specified railway operations under the National Law on 20 January 2013.

2. [36]

   On 28 August 2020, Susan Jane McCarrey, the Regulator appointed pursuant to s 17 of the National Law, executed the Instrument, being an instrument of delegation. The instrument had the effect of revoking all previous instruments of delegation and delegated various powers and functions to the holder of the office of Chief Operating Officer (“COO”) (being Mr Doggett), subject to the following conditions:

   1. (1)

      References to the holder of an office include a reference to the person for the time being acting in the position.

   2. (2)

      Where the office of Chief Operating Officer is abolished or renamed, the reference to that office is to be taken to be a reference to any successive office where the holder exercises the same functions as the position abolished or renamed.

   3. (3)

      Unless specified in Column 3 of the Schedule, the delegate is not authorised to sub-delegate.

   4. (4)

      The delegation for each of the powers listed in Column 1 is subject to a condition that that delegate must exercise the power in a manner that is consistent with the policies and procedures issued by the Office of the National Rail Safety Regulator.

   5. (5)

      The delegation for each of the powers listed in Column 1 is subject to the conditions, if any, listed in Column 4 of the Schedule.

   6. (6)

      A reference to a section in Column 1 is a reference to both a section in the Rail Safety National Law (WA) and a reference to a section in the Rail Safety National Law (WA), and a reference to a regulation in Column 1 is a reference to both a regulation in the Rail Safety National Law National Regulations 2012 and a regulation in the Rail Safety National Law National Regulations (WA) 2015.

   7. (7)

      The delegation may be revoked or varied at any time, for any reason, by a further instrument in writing.”

3. [37]

   Relevantly, the “nature” of Aurizon’s operations was identified in the accreditation as the “[p]rovision of operating yards and sidings”, “[p]rovision of freight services” and “[p]rovision of rail infrastructure maintenance”.

4. [38]

   On 29 September 2021, pursuant to s 68(1) of the National Law, Aurizon applied to the Regulator for variation of its accreditation. Aurizon’s Application for variation of accreditation (“variation application”), sought to have “crew cars added to Schedule 2, Item 2” of Aurizon’s accreditation. This was identified as being sought “to support the delivery of a new service between east coast and west coast in early 2022”. Aurizon indicated in its application that it had followed its change management process. In response to a question in the application about any changes or enhancements made to Aurizon’s safety management system (“SMS”), Aurizon advised:

5. [39]

   The ‘crew cars’ referred to are otherwise known as ‘Relay Vans’. Relay Vans are passenger rail cars outfitted with sleeping, cooking and other amenities to enable train crew to rest and take breaks while remaining on the train. The train crew can remain on the train when engaged in periods of rest or whilst taking breaks from work, thereby obviating the need for Aurizon to arrange accommodation for crew members off the train. The change in procedure enabled Aurizon to operate the train continuously in contrast to prior operating limitations arising from the lack of accommodation.

6. [40]

   In its application, Aurizon described rolling stock changes relevant to or affected by the proposed variation as involving “leasing a CDBY crew car from CFCLA”. A data sheet in respect to the ‘CDBY crew car’ was appended. The data sheet described the crew cars as ‘wagons’, provided that the ‘wagon type’ was crew accommodation and detailed that the capacity of the crew cars was 9 tonnes and maximum speed was 115km/h.

7. [41]

   Section 6 of the application concerned change management for amendments to Aurizon’s SMS. In answer to the question, “Have you followed your organisations change management process?” and under the heading ‘Consultation/change management process (how)’, Aurizon said:

8. [42]

   In that same section, Aurizon recorded that consultation had not been undertaken with stakeholders but would be “undertaken once stakeholders are identified in risk assessments and the development of change plans”.

9. [43]

   Section 7 concerned ‘Safety Management’. In response to a question requiring Aurizon to advise of any changes or enhancements made to its SMS, including a description of measures to be undertaken to manage newly identified risks, Aurizon detailed that:

10. [44]

    On 27 October 2021, a meeting occurred between Aurizon and ONRSR representatives. On 1 November 2021, Mr Michael McDougall (the ONRSR officer with day-to-day carriage of Aurizon’s variation application) requested additional information which included “a registered and approved implementation plan” and “SMS documents” which sufficiently covered design standards of rolling stock “to address human factors for crew cars”.

11. [45]

    On 18 November 2021, Mr Brendan James (a representative for Aurizon) produced a document entitled “Introduction of Leased Rail First Crew Cars”. The document described its purpose as detailing the implementation plan of lease crew cars from “Rail First” to support “East-West train operations”. The document stated that it applied to both “CDAY and CDBY class wagons, with both classes being leased under a dry lease agreement meaning that Aurizon will be responsible and accountable for all preventative and corrective maintenance tasks (including provisioning).”

12. [46]

    Under the heading “Execution”, the document stated:

13. [47]

    On 26 November 2021, the aforementioned implementation plan (“Introduction of Leased Rail First Crew Cars”) was lodged together with other documents with the ONRSR in support of the variation application.

14. [48]

    On 2 December 2021, Mr McDougall emailed Mr James requesting information specifically about consultation. The email referred to par 5.1 of the “Introduction of Leased Rail First Crew Cars” document.

15. [49]

    On 16 December 2021, Aurizon replied to the email and stated that consultation had been “pushed back”.

16. [50]

    The crew operating Aurizon’s proposed route from Broken Hill, New South Wales, to Kwinana, Western Australia, which would incorporate the crew cars was to be supplied through a labour hire arrangement with Trojan Recruitment Group Pty Ltd (“Trojan”).

17. [51]

    On 21 January 2022, Aurizon lodged with the ONRSR various documents, which included “evidence of consultation” on 17 January 2022 with prospective train drivers to operate Aurizon’s proposed route. This consultation was in the form of a presentation to 10 employees of Trojan Rail (a subsidiary of Trojan).

18. [52]

    It may be noted that, in Mr Doggett’s subsequent Reasons for Decision, he referred to there being no evidence with respect to consultation on 29 September 2021 and insufficient evidence of consultation as at 26 November 2021. He then referred, as mentioned above, to ONRSR’s request on 2 December 2021 for information about any consultations. Mr Doggett noted that ONRSR was informed on 16 December 2022 that Aurizon had “pushed back consultation and on 21 January 2022 had filed documents as evidence of consultation. Mr Doggett referred to the meeting on 17 January 2022 as being attended by “prospective train drivers who were to operate Aurizon’s new national rail route from Newcastle in NSW to Cynara in Western Australia, via Broken Hill, if ONRSR granted Aurizon’s application for variation”.

19. [53]

    The evidence given by Mr Stephen Wright, an organiser of the Union, was that at least one of the Trojan Rail employees who attended the meeting on 17 January 2022 was a member of the Union.

20. [54]

    On 21 January 2022, Mr James emailed Mr McDougall a ‘summary of the briefing session’ conducted with train crew earlier that week. Mr James detailed that crew were taken through draft operating procedures and design specifications of the crew car. He said that crew had provided some feedback that would be adopted and a follow up session in a few weeks’ time would occur where crew would be able to physically inspect the crew car.

21. [55]

    That same day, Mr McDougall prepared an internal draft decision brief. Mr McDougall detailed the background to the variation application as the following:

    1. (1)

       Aurizon was in the process of commencing a new service to transport bulk goods from New South Wales to Western Australia which would utilise crew cars and thus enable train crew to have rest breaks.

    2. (2)

       The route was “new” and used other rolling stock (freight wagons) which were of a type not previously used;

    3. (3)

       Aurizon would initially lease the crew cars. Maintenance requirements and associated procedures in relation to the crew cars had been handed over to Aurizon to enable it to have management and control of the rolling stock.

22. [56]

    Under the heading ‘Key Considerations’, Mr McDougall provided an analysis with respect to s 65 of the National Law. Against the analysis for s 65(c)(iii) was the following:

23. [57]

    In early 2022, the Union learned about Aurizon’s proposal to introduce crew cars and contacted Mr McDougall via Mr Wright. Mr McDougall confirmed that Aurizon had applied to vary its accreditation to permit it to run a ‘relay van’.

24. [58]

    On 2 February 2022, Mr Warren Sallis (Rail Operations Manager, Aurizon) spoke with Mr Wright about the proposed introduction of crew cars to Aurizon and the Union’s desire to be consulted. Mr Wright indicated that the Union was concerned that it had not been consulted on the introduction of the crew cars.

25. [59]

    At a meeting with Mr Greg Wagner (Director, Operations, ONRSR), to discuss the draft decision brief, Mr Wagner provided Mr Doggett with a verbal briefing with respect to Aurizon’s variation application. Mr Doggett tasked Mr Wagner “out of an abundance of caution to seek further written evidence in relation to consultation… to confirm the accuracy of the proposition in the Decision Brief that there was no need for Aurizon to consult the [Union] in relation to the variation”.

26. [60]

    In early 2022, Mr Wright telephoned Mr Sallis about the introduction of crew cars and Aurizon’s variation application. Mr Sallis emailed Mr Wright on 8 February 2022 at 12:54pm detailing, relevantly, that:

    1. (1)

       Aurizon was planning to commence operations soon, involving ‘occupancy of a crew car’;

    2. (2)

       the crew car would be used by workers from Trojan who were under a labour hire agreement, had been consulted on ‘the Procedure for use of the crew car’ and had inspected the rolling stock. These workers had provided feedback that had been incorporated into operating procedures;

    3. (3)

       Aurizon was not aware that any workers impacted were members of the Union but would commit to consulting the Union before its members were involved in use of a crew car.

    4. (4)

       Aurizon has been working cooperatively with ONRSR to finalise the variation to its accreditation to include crew cars as an item of rolling stock permissible for use under its accredited operations.

27. [61]

    Mr Sallis forwarded his email to Mr Wagner and Mr McDougall at 1:29pm that day.

28. [62]

    Mr Wright responded to Mr Sallis’ email at 2:54pm on 8 February 2022, indicating that he was still requesting consultation and a copy of the procedure and information on changes to Aurizon’s SMS. Mr Wright said that the Union did have members that “will be doing this working NOW” and understood that they were “Trojan employees not Aurizon”. Mr Wright requested a time to speak to Mr Sallis.

29. [63]

    On 9 February, Mr Sallis forwarded both his email and Mr Wright’s response to Mr James at 10:50am and Mr Wagner at 1:50pm.

30. [64]

    On 9 February 2022, Aurizon wrote to Mr Wagner and stated the following:

31. [65]

    On 9 February 2022, the Decision Brief was finalised and submitted to Mr Doggett for review and decision. The Decision Brief recorded that Aurizon “have developed a user requirement specification to identify in their SMS, the human factor requirements for crew cars”. Analysing the variation application against the criteria in s 65(c)(iii) of the National Law, the Decision Brief stated (amending the earlier reference to compliance with s 65(c)(iii)):

32. [66]

    Mr Doggett made the following observations regarding the Decision Brief:

33. [67]

    Aurizon submitted it was apparent that Mr Doggett proceeded on the basis that the first point in the above excerpt (at [66]) was correct (i.e., consultation with train crew had occurred), but did not rely on the second point (i.e., he did not proceed on the basis that Aurizon had consulted with the Union).

34. [68]

    The Union submitted that the assertion that Aurizon had consulted with it was erroneous. No such consultation had occurred, nor did it occur prior to Aurizon’s variation application being approved on 11 February 2022 by Mr Doggett.

35. [69]

    The Union’s submission in this respect is correct insofar as it refers to the first version of the brief and no consultation occurring with the Union. However, Aurizon is correct to submit that Mr Doggett did not proceed on the basis that the second assertion was correct. Rather, he found that the Union had not been consulted regarding the change because “none of the affected Rail Safety workers were members of the [Union].”

36. [70]

    As recorded in the Notice of Accreditation dated 11 February 2022 and pursuant to s 69(1)(a) of the National Law, Mr Doggett varied Aurizon’s accreditation by inserting “(10) Crew Cars” into item 2 of Sch 2 of Aurizon’s accreditation. This, not the decision brief, is the decision under review.

Decision of Mr Doggett

1. [71]

   On 2 June 2022, the Regulator filed Mr Doggett’s Statement of Reasons. I have variously referred to parts of those reasons earlier and will not repeat them here, but rather refer to any additional elements that attracted attention below.

2. [72]

   Mr Doggett referred to various findings made by him underpinning the decision to vary Aurizon’s accreditation as follows:

3. [73]

   Under the heading “Further Reasons”, being reasons in addition to those earlier referred to with respect to the “Decision”, Mr Doggett stated at [42]-[48]:

4. [74]

   The first defendant, Aurizon, submitted:

5. [75]

   The Union, submitted:

6. [76]

   These issues will be considered further in the discussion of the various grounds below.

Grounds of the Amended Summons

1. [77]

   By the Amended Summons, the Union abandoned paras 2 and 4 of the original grounds. In oral submissions, Mr Boncardo also abandoned grounds 1, 1D and 3 of the Amended Summons. There were then left seven grounds in support of the relief sought in the Amended Summons. Those grounds are as follows:

Consideration

1. [78]

   The Union’s contention on this ground was that the condition in the Instrument which attached to the delegation of the Regulator’s power under s 69(1) of the National Law to determine variation applications to Mr Doggett was to be construed such that the power to delegate did not extend to any “determinations that result in a significant change to the scope and nature of the operations of an applicant”, even if no relevant ONRSR procedure existed.

2. [79]

   The condition reads:

3. [80]

   The Union’s contention was developed in the following way:

   1. (1)

      In the absence of a “relevant ONRSR procedure” determining whether a change to the scope and nature of the operations of an applicant is significant, the condition is not entirely inoperable.

   2. (2)

      Because the delegation by the Regulator of the power under s 69(1) of the National Law was limited by the condition even in the absence of a “relevant ONRSR procedure”, an application for variation of accreditation that effected a significant change in the scope and nature of the operations of an applicant was to be determined by the Regulator personally.

   3. (3)

      The ordinary meaning of “significant” captures changes that are important or of consequence. Changes of importance or consequence must concern both the scope and nature of the applicant’s operations. The noun “operations” can extend to an applicant’s industrial or business activities. In the context of the Instrument, it should be construed as referring to an applicant’s “railway operations” as that expression is defined in s 4 to the National Law. “Railway operations” captures, relevantly, the commissioning, use, modification, repair or decommission of rolling stock; the operation or movement of rolling stock; or the movement or causing of movement of rolling stock for the purposes of operating a railway service.

   4. (4)

      The requirement for there to be a “significant” change required a comparison between the scope and nature of the applicant’s operations at the time the variation application is made and that which would exist if the application were granted.

   5. (5)

      Whether a change in the scope and nature of an applicant’s railway operations is relevantly significant is an objective question. Assessment of the character of the change is not conditioned on the formation of an opinion or state of mind by the delegate or delegator, but on the change actually meeting the description detailed in the instrument of delegation.

   6. (6)

      It is a matter for this Court to ascertain whether or not a change to the scope and nature of an applicant’s operations is “significant”.

   7. (7)

      It is non-sensical to assume that the Regulator intended a delegate to exercise decision-making functions in relation to applications that effected significant changes where no “relevant ONRSR procedure” had been issued.

   8. (8)

      The addition of ‘crew cars’ was an addition to the type of rolling stock which Aurizon was accredited to operate. This was an extension of its railway operations insofar as it involved the commission or use of different rolling stock; the operation or movement of different rolling stock on a new railway; the maintenance of rolling stock; and the movement of rolling stock for the purposes of operating a new railway service.

   9. (9)

      Crew cars were materially different from the vehicles and locomotives to which Aurizon’s accreditation applied as they:

   10. (10)

       The change effected by the variation was important and of consequence in the context of Aurizon’s accreditation. It involved the addition of new rolling stock which were unique in Aurizon’s railway operations and which had consequent effects on Aurizon’s conduct of railway operations. It encompassed the addition of a new route and the implementation of a way of working which had previously not been engaged in by Aurizon.

   11. (11)

       The change was, therefore, a significant one in regard to the scope and nature of Aurizon’s accreditation. Aurizon’s application was not one which could be dealt with by the COO under the limited authority conferred by the Instrument and was required to be determined by the Regulator personally. The COO’s determination of Aurizon’s application was therefore not authorised and was invalid.

4. [81]

   Aurizon’s response to ground A1 was that the condition ought properly be construed as meaning that if no relevant ONRSR procedure exists which determines the significance of a proposed variation, then the delegation of the power under s 69(1) is not limited by any condition. Aurizon contended that the instrument does not require or permit the delegate (or this Court) to undertake an objective assessment of the significance of a proposed variation because only a relevant ONRSR procedure could determine whether a proposed variation is significant and therefore beyond the scope of the delegate’s power. Aurizon contrasted the condition on the power under s 69(1) with the conditions on other delegations in the Instrument (of powers under ss 72, 104(1), 104(2), 175(3) and 175(4)) which do not require a relevant ONRSR procedure to determine whether the condition is operative.

5. [82]

   It was submitted that, if a relevant ONRSR procedure did exist, the exercise of the power by Mr Doggett and the findings in the Decision Brief and Statement of Reasons all support a finding that the variation application was not determined to be a significant change according to such a procedure.

6. [83]

   In the alternative, Aurizon submitted that, if the condition is one that required an objective assessment by this Court, the variation application did not “result in a significant change to the scope and nature of the applicant’s operations” in light of Aurizon’s accredited railway operations at the time of the application.

7. [84]

   In my view, the correct construction of the condition when read in the context of the whole of the Instrument, including the phrase in parentheses (“as determined in the relevant ONRSR procedure”) is that the delegation of the power under s 69(1) is only limited where a relevant ONRSR procedure has determined that an application would “result in a significant change to the scope and nature of the operations of an applicant”.

8. [85]

   Section 45(2) of the National Law empowers the Regulator to delegate a function or power of the Regulator under the National Law, such as the function in s 69(1) of the National Law. If a function is delegated, the delegated function must be exercised “in accordance with any conditions to which the delegation is subject”.

9. [86]

   By the Instrument, the Regulator delegated specified powers and functions under the National Law to Mr Doggett, the holder of the office of the COO subject to certain conditions. This included condition 5 which stated, “[t]he delegation for each of the powers listed in Column 1 is subject to the conditions, if any, listed in Column 4 of the Schedule”. The function in s 69(1) was delegated to Mr Doggett subject to the condition which, for convenience, is repeated:

10. [87]

    The operative part of the condition for present purposes is the phrase “a significant change to the scope and nature of the operations of an applicant (as determined in the relevant ONRSR procedure)” (“the phrase”).

11. [88]

    The words in brackets plainly form part of the first part of the sentence which constitutes the condition. The comma appearing immediately after the brackets demonstrates a separation between that introductory component of the sentence and that which follows.

12. [89]

    It is reasonably clear that the words in brackets have a relation to the whole of the phrase as the condition concerns changes to existing determinations of the scope and nature of operations by reference to the original accreditation.

13. [90]

    The words in brackets, therefore, govern the balance of the phrase and in doing so govern what will or will not be caught by the condition. I accept the submission by Aurizon that the words “the relevant ONRSR procedure” in this respect are determinative of whether the delegate does or does not have power to determine a variation application.

14. [91]

    In addition to the aforementioned grammatical analysis of the condition, I note the words “as determined” in the brackets also signify that the procedure adopted will determine when the condition will operate.

15. [92]

    Further, in that respect, the condition on the power under s 69(1) in the Instrument may be contrasted with the conditions on other delegations in the Instrument such as those relating to ss 72, 104(1), 104(2), 175(3) and 175(4), which do not require a relevant ONRSR procedure to determine whether the condition is operative for a particular application. The condition does not require the delegate to undertake a comparison between an applicant’s current and potential future operations. If it did, substantial questions as to uncertainty would be created by the provision.

16. [93]

    I do not consider the operation of the presumption of regularity assists in resolving the question raised by this ground.

17. [94]

    In light of my finding, it is not necessary for me to decide whether Aurizon’s variation application did result in a “significant” change to the scope and nature of their operations.

18. [95]

    I reject Ground A1.

19. [96]

    Although it was raised squarely by the Union in the final ground of the Amended Summons (ground 5) and expressed as “further and in the alternative to grounds 2B and 3”, the parties agreed (and the oral argument proceeded on the basis) that it would be necessary to address the issue of the proper construction of s 99(3)(a) of the National Law (“the construction issue”) immediately following the delegation issue. This was said to reflect the status of the construction issue being “the most important [legal] point” raised by the Amended Summons, in circumstances where the construction of s 99(3)(a), as a pure question of law, will affect the determination of those grounds warranting a factual inquiry, such as ground 2B (see [196] below).

20. [97]

    As noted at [33] above, s 99(3) of the National Law sets out the consultation requirements when establishing safety management systems.

21. [98]

    In oral argument, the Union approached the issue of s 99(3)(a)’s construction as being raised in the first instance by ground 5 of the Amended Summons, such that the focus of the exercise of construction was whether “the requirement under s 99(3)(a)(iii) is limited to consultation with unions who have as members… persons referred to in s 99(3)(a)(i)”.

22. [99]

    However, ground 5 does not stand in isolation with respect to the construction issue, which is also raised by ground 1B of the Amended Summons. That ground directs attention to whether s 99(3)(a)(i) is “limited to consultation with persons who carry out railway operations, rather than as extending to persons who work on or at the operator’s railway premises or with the operator’s rolling stock”.

23. [100]

    In light of the respective formulations of those grounds and the overarching construction issue, it appears that grounds 1B and 5 should be dealt with together.

24. [101]

    At the outset, before turning to the specific contentions of the parties, in light of the principles governing the orthodox process of statutory construction, the following features of s 99(3)(a) should be noted:

    1. (1)

       the consultation requirement is mandatory, as indicated by the use of the word “must” in the chapeau;

    2. (2)

       the persons required to be consulted by an operator prior to a variation are cumulative, as indicated by the use of the conjunctive “and” between each clause of sub-section (3)(a);

    3. (3)

       a successful variation application is expressly preconditioned on satisfaction of the consultation requirement (see ss 65(c)(iii) and 69(1) of the National Law);

    4. (4)

       s 99(3)(a) casts a wide net over those persons who are required to be consulted with as a precondition to a successful variation application, extending, where appropriate, to the public and to other rail transport operators (where they are both parties to an interface agreement “relating to risks to safety of railway operations”); and

    5. (5)

       it operates as part of a national scheme intended, to the extent possible, to provide for “safe railway operations in Australia” (see s 3(1) of the National Law).

25. [102]

    The final feature noted in the paragraph above foreshadows the overarching “purpose, objects and guiding principles” of the National Law. Those objects are contained at [7] above and, for present purposes, may be summarised relevantly as “the provision [of] a national system of rail safety, including by providing a national scheme for national accreditation of rail transport operators in respect of railway operations” (s 3(2)(c)); “the effective management of safety risks [and] the safe carrying out of railway operations” (s 3(2)(d) and (e)); and “to promote the effective involvement of relevant stakeholders, through consultation and cooperation, in the provision of rail safety operations” (s 3(2)(j)). The specific purpose of the accreditation scheme is also set out in s 61, which states that “[t]he purpose of accreditation of a rain transport operator in respect of railway operations is to attest that the rail transport operator has demonstrated to the Regulator the competence and capacity to manage risks to safety associated with those railway operations.”

26. [103]

    In light of these features of s 99(3)(a) in particular, and the National Law generally, the parties were able to frame the field of dispute as to the construction of s 99(3)(a) in relation to each ground.

27. [104]

    As to ground 5, the Union contended that the operative word in s 99(3)(a)(iii) was “representing”, such that, properly construed, the sub-section “ensured that unions as stakeholders were consulted with if they were able to represent the industrial interests of the persons detailed in s 99(3)(a)(i)” (emphasis added). This proposed construction was said to rely upon a broad understanding of the word “representing” in s 99(3)(a)(iii), such that it means “being entitled to speak or act on behalf of”. This in turn was said to accord with the general law’s “conventional and well-settled understanding” of unions (citing R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71; [1957] HCA 19 at 81 (“Dunlop Rubber”)).

28. [105]

    Aurizon countered this contention on the basis that “Union” is defined in the National Law (s 4(1)) such that s 99(3)(a)(iii) requires consultation with:

29. [106]

    On Aurizon’s case, that definition of “union” carried “membership” as a central conception, such that the word “representing” in s 99(3)(a)(iii) was confined to those Unions with members amongst the persons referred to in s 99(3)(a)(i). Further, Aurizon sought to distinguish the Union’s reliance on the general law conception of unions by emphasising the primacy of the statutory scheme in construing s 99(3)(a), which is a point I accept (see [115]-[119] below). It was submitted that “[t]his case is not about the significance of a union’s eligibility rules for determining whether there is an ‘industrial dispute’ or whether a union ‘was entitled to represent the industrial interests of the person’ for the purposes of… the Fair Work Act 2009 (Cth).”

30. [107]

    In respect of ground 1B, the Union contended that Mr Doggett had misconstrued s 99(3)(a) by declining to consult with it on the basis that none of the members of the cabin car crew were members of the Union. (being “persons who carry out those railway operations” in accordance with sub-section (3)(a)(i)), without accounting for persons “who work on or at the operator’s railway premises or with the operator’s rolling stock”. Aurizon resisted this argument on the basis that Mr Doggett considered that persons “work[ing] on or at the operator’s railway premises or with the operator’s rolling stock were ‘not likely to be affected’” by the variation of the SMS.

31. [108]

    In construing s 99(3)(a), it is important to avoid affording every word of the provision its ordinary and natural meaning without regard to context and purpose, so as to fall into the trap of literalism (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] (“Project Blue Sky”)). That trap was considered by the NSW Court of Appeal in Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 (“Sydney Seaplanes”). In Sydney Seaplanes at [26]–[41], Bell P (as the Chief Justice then was) issued the following summary of “the applicable principles of statutory construction”, which I respectfully adopt in the present case:

32. [109]

    In the present context of the National Law, it is important to note that ss 33 and 34 of the Interpretation Act 1987 (NSW) do not apply formally, as the National Law contains its own Sch 2 of “miscellaneous provisions relating to interpretation”. Relevantly, Sch 2 includes the following clauses:

33. [110]

    Neither party’s counsel, nor my own research, could locate any authority which had directly considered the proper construction of s 99(3)(a) of the National Law.

34. [111]

    It is with the foregoing principles and matters in mind that attention is now turned to the proper construction of the National Law.

35. [112]

    As noted above, the Union’s argument on ground 5 focussed on the meaning to be applied to the word “representing” as it appears in s 99(3)(a)(iii), namely that “representing” is used in s 99(3)(a)(iii) “in the sense of ‘being entitled to speak or act on behalf of”. This was said to result in a construction of s 99(3)(a)(iii) that “captures any union that represents the industrial interests of persons likely to be affected by the safety management system, regardless of whether the union has members amongst the group of workers detailed in s 99(3)(a)(i)”.

36. [113]

    At the outset of its written submissions, the Union referred to this construction being open, in the first order, from the definition of the word “represent” in the Oxford English Dictionary. In this context, I note the limited utility of reference to dictionary definitions in the process of statutory construction as noted in Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 at [52]–[55]:

37. [114]

    Thus, Mr Boncardo turned to “a consideration of the context of s 99(3)(a)(iii and the purposes of the provision” in order to fortify his proposed construction. The principal “contextual matter” that he raised, which received considerable focus in oral submissions, was “the legal understanding of trade unions”. That submission was advanced by reference to Dunlop Rubber at 81, where it was said that a union:

38. [115]

    In oral argument, Mr Boncardo conceded, by reference to the submission of Dr Roche (with whom Mr Pulsford appeared for Aurizon), that “these cases, Dunlop Rubber and Regional Express… deal with points of statutory construction that are somewhat removed from s 99 of the National Law”. I accept that concession but would take it further, so as to say that Dunlop Rubber and Regional Express are significantly removed from s 99 of the National Law and therefore provide limited assistance to the process of statutory construction, least of all because neither case was concerned with a consultation process expressly confined to a group of workers “likely to be affected by” (see s 99(3)(a)(i)) a particular thing or subject matter. Rather, they were concerned with industrial disputes affecting an entire industry (Dunlop Rubber) or class of workers vested with a particular right (Regional Express).

39. [116]

    That the Dunlop Rubber line of jurisprudence may be distinguished from s 99(3)(a) of the National Law is made clearest by a consideration of s 540(6) of the Fair Work Act 2009 (Cth) (the “FW Act”), which was the statutory basis of the dispute in Regional Express and was found in that case to be informed by “historical context”, including “the Dunlop Rubber principle cases” (see [29]−[33]). Section 540(6) of the FW Act, which limits the persons who may apply for orders in relation to contraventions or proposed contraventions of civil remedy provisions, relevantly provides:

40. [117]

    A comparison of the words used in s 540(6) of the FW Act as against the words in s 99(3)(a) of the National Law, albeit in different contexts and dealing with different subject matters, is illuminating to the extent that s 540(6) expressly contemplates that entitlement to represent a person, as opposed to actual membership, will enliven the industrial association’s power to apply for an order. No such words appear in s 99, those words presumably seeking to ensure that statutory effect is given to the Dunlop Rubber principle. Applying the same logic, it may be argued that, by the wording of s 99, Parliament declined to give effect to the Dunlop Rubber principle, notwithstanding that the principle may be distinguished on a subject matter basis in any event. The distinct formulation of s 540(6) also suggests that “representation” (s 99(3)(a)(iii)) is a concept separate to “entitlement to represent” (s 540(6)(b)(ii)), contrary to Mr Boncardo’s foundational submission.

41. [118]

    The aforementioned distinction between the FW Act and s 99(3)(a) was picked up by Dr Roche, who argued that the FW Act contains:

42. [119]

    As noted at [105]–[106] above, Aurizon developed its case on the construction issue by emphasising that “union” was a defined term in s 4(1) of the National Law, such that its meaning was fixed by reference to the FW Act and could not be altered by the general law. This point also supports the distinction of Dunlop Rubber and Regional Express, to the extent that “union” is defined as “an employee organisation that is registered, or taken to be registered, under the [FWRO Act]”. On this basis, it can be inferred that in the course of drafting provisions of the National Law concerning unions (such as s 99(3)(a)(iii)), Parliament was aware of the Fair Work legislative scheme (including both the FWRO and FW Acts) and its effect (Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40 at [81]), including the distinction between a union’s broader “entitlement to represent” a group workers, and its actual “representation” of a smaller group of workers.

43. [120]

    The context foreshadowed by Dr Roche in the extract at [118] above was the “immediate context” of s 99, namely, other provisions of the National Law. To that end, the Court was first taken to s 249 of the National Law, which was correctly identified as the only other provision that enshrines a consultation requirement and provides:

44. [121]

    Dr Roche relied upon the difference between the wording of ss 99(3)(a)(iii) and 249(2)(c) as supporting Aurizon’s narrower construction of subs (3)(a)(iii), on the basis that “if in s 99 the intention of Parliament had been to mandate a consultation with the union, that’s the sort of language that it would have used, not the language of representing”. That distinction takes on greater significance when the even more “immediate” context of the word “representing” is considered, namely, “the persons referred to in subparagraph (i)” of s 99(3)(a). By s 99(3)(a)(i), the scope of the relevant union “representation” is confined to “persons likely to be affected by the safety management system or its review or variation”, with those persons stated (non-exhaustively) deemed to be:

    1. (1)

       persons who carry out the railway operations subject to the safety management system in question;

    2. (2)

       persons who work on or at the railway operator’s (i.e. Aurizon’s) premises; and

    3. (3)

       persons who work with the operator’s rolling stock.

45. [122]

    It is entirely uncontroversial to observe that the reference in s 99(3)(a)(iii) to “the persons referred to in [s 99(3)(a)(i)]” comprises words of confinement in respect of the scope of the consultation to be undertaken. That confinement must be given some effect in determining the scope of the word “representing”, lest Parliament’s intention not to provide for unfettered consultation will be compromised. The construction favoured by Aurizon achieves that effect, by confining representation with reference to the concept of membership, whilst the Union’s construction would, at its highest, not confine the scope of consultation (cf, expand the scope of consultation), in circumstances where different express words are used to provide for an almost unfettered consultation process in s 249(2)(c) of the National Law (see [120] above).

46. [123]

    Another feature of s 99(3)(a)(i) that is relevant to the present construction of subs (3)(a)(iii) is that it requires consultation with the very persons working on or at the site of the relevant railway operations or with the relevant rolling stock. This is a mandatory provision, the non-satisfaction of which would preclude variation in accordance with s 69(1) of the National Law. Direct consultation with those workers, from a practical perspective, would necessarily confine the scope of “representation” in s 99(3)(a)(iii) in circumstances where unions ordinarily act or make representations on behalf of their constituent members or workers, recognising that, to adopt the language of Isaacs and Rich JJ in Australian Tramway Employees’ Association v Prahran & Malvern Tramway Trust (Union Badge Case) (1913) 17 CLR 680; [1913] HCA 53 at 694–695:

47. [124]

    That is to say, the scope of union consultation will necessarily be broader where workers are unable to be consulted properly or to make effective representations. However, that is not the case in respect of a safety management system variation under the National Law, which expressly mandates that workers are to be consulted in accordance with s 99(3)(a)(i) and given the opportunity to make representations to the railway operator. This feature of s 99(3)(a) also draws attention to the fact that the process of consultation occupies a territory entirely distinct from the industrial dispute process, from which the expanded notion of “representing” as constituting “entitlement to represent” originates, further undermining the Union’s proposed construction as drifting too far from the text of s 99(3)(a)(iii). This point is considered in further detail below (see [133]–[135]).

48. [125]

    The preceding discussion of s 99(3)(a)(i) serves to highlight the fact that, although the persons required to be consulted in accordance with subs (3)(a) casts quite a wide net and encompasses, where appropriate, the public (which favours a broader application of “representing”), that wide net is cast on the basis that all persons required to be consulted are “likely to be affected by the safety management system or its review or variation”, which necessarily limits the scope of consultation. It is in this context that the word “representing” is used in subs (3)(a)(iii), as opposed to the broader words “entitled to represent” or “and any relevant union”. This choice of wording appears to be commensurate with the contemplated scope of consultation, taking account of the stated purposes of the National Law. That is, wide consultation with persons “likely to be affected by the safety management system” which is itself specific to a particular rail operator in accordance with the regulatory scheme established by the National Law.

49. [126]

    On the other hand, and to emphasise this point, the codes of practice approved under Div 5 of the National Law may affect all or any rail safety workers indiscriminately. It is in this context that the broader choice of wording in s 249(2)(c) is made, such that the meaning of “representing” in s 99(3)(a) may be confined by the necessarily narrower consultation process contemplated by that section as opposed to s 249(2)(c). This position finds further support in the fact that s 99(3)(a)(v) requires consultation with the public as appropriate, whilst s 249(2)(5) requires that a copy of an approved code of practice “is available for inspection by members of the public without charge at ONRSR’s office during normal business hours”.

50. [127]

    Just as Aurizon referred to s 249(2)(c) of the National Law in aid of its construction of s 99(3)(a)(iii), on the basis that it is the only other provision of the Law mandating “consultation”, so too did it rely upon s 99(3)(a)(ii), which is the only other provision in the National Law which relevantly adopts the word “representing”. Reliance is placed upon subs (3)(a)(ii) in recognition of the principle that, subject to contrary indication in the text of the statute, “it is to be presumed that [an expression in a statutory provision] has the same meaning wherever it appears in the [statute]”: Regional Express at [21], citing Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; Kline v Official Secretary to the Governor-General (2013) 249 CLR 645 at [32]; Tabcorp Holdings Ltd v Victoria (2016) 90 ALJR 376 at [65].

51. [128]

    As noted above at [97], s 99(3)(a)(ii) provides that “[b]efore… varying [a] safety management system, the operator must, so far as is reasonably practicable, consult with health and safety representatives (within the meaning of the occupational health and safety legislation) representing any of the persons referred to in subparagraph (i)” (emphasis added). The “occupational health and safety legislation” refers to the Work Health and Safety Act 2011 (NSW) (“the WHS Act”) which provides at s 62:

52. [129]

    Section 68 of the WHS Act sets out the “powers and functions of health and safety representatives”, including “to represent the workers in the work group in matters relating to work health and safety”, consistent with the main object of the WHS Act, which is to “provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces”.

53. [130]

    Aurizon seized upon two aspects of the “health and safety representative” scheme in support of its narrower construction of s 99(3)(a)(iii). First, the fact that representation is confined to those workers who are members of the particular work group: see ss 50–52 of the WHS Act regarding the formation and features of a “work group”. Secondly, the fact that s 69 of the WHS Act generally confines health and safety representation to “matters that affect, or may affect, workers in that [work] group” (emphasis added). That is to say, it is membership of the work group that enlivens representation by the elected health and safety representative, just as Aurizon asserts that membership of a union enlivens the consultation requirement in s 99(3)(a)(iii). Both of these matters are clearly open on the text of s 99(3)(a)(ii) and the relevant provisions of the WHS Act.

54. [131]

    The Union countered this point on several bases, which culminated in a submission that s 99(3)(a)(ii) in fact “assists the Plaintiff’s construction as it underscores that formal membership of a trade union under s 99(3)(a)(iii) is not envisaged”. Rather, what is envisaged is membership of a group of workers that a union is able to represent. Essentially, this was said to result from aspects of the election process in Pt 5, Div 3, Sub-Div 4 of the WHS Act, which includes s 62, such that a health and safety representative may be elected unopposed under s 63; or a worker may be represented by a person that they did not vote for, preferring an unsuccessful candidate, with the result that “a health and safety representative will ‘represent’ workers in their work group regardless of the consent or acquiescence of a particular worker”.

55. [132]

    This submission proceeds on a number of misapprehensions. First, the Union seeks to draw parallels between a “union” in subs (3)(a)(iii) and a “health and safety representative” in subs (3)(a)(ii) to suggest that both subsections contemplate a broad formulation of “representation”. The principle in Regional Express (see [127] above) does not extend that far, and instead requires focus upon promoting harmony and consistency in the application of the common expression, namely “representing”.

56. [133]

    On that basis, the Union’s submission proceeds on the assumption that a union operates in the same way as a health and safety representative. That is not the case, the distinction being made clearest in the present context by the process of “electing” a health and safety representative, with the result that every member of a particular work group will be “represented” irrespective of their participation in the election process, or their interest in being represented more generally. In this respect, union membership, and the participation of members in a union’s processes, is entirely voluntary, whereas health and safety representation for members of a particular work group is mandatory in nature (once a requested has been issued and an election conducted in accordance with Pt 5, Div 3 of the WHS Act).

57. [134]

    In practical terms, the operation of the health and safety representation regime in that manner extinguishes the notion of an “entitlement to represent” workers in a work group; the members of the group are either represented or they are not, the only independent variable being membership of the work group. Such a regime is entirely alien to unions who operate in recognition of the right to freedom of association and the right to be represented: see FW Act, s 3(e); Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; [2011] FCAFC 14 at [14]; Freedom of Association and Protection of the Right to Organise Convention (1948) No 87, Pt 1, Art 2. This observation is fortified by the terms of s 69 of the WHS Act, as raised by Aurizon (see [130] above), including the exception where “a member of another work group asks for the representative’s assistance” (subs (2)(b)). By analogy to the union context, such a request would presumably result in that worker becoming a member of the union, lest the notion of membership lose all practical utility.

58. [135]

    Secondly, and in much shorter compass, the Union’s argument that a health and safety representative has a “freestanding ability” to represent work group members’ interests does not assist its construction, given that a union possesses the same ability in respect of its members. To expand the point raised at the end of the paragraph above, it is difficult to comprehend a scenario in which a union unilaterally (or on its “freestanding ability”) takes up a representative cause in respect of a particular non-member worker absent that worker expressly asking for the union’s assistance.

59. [136]

    The preceding observations as to the Union’s argument on s 99(3)(a)(ii) presage an important issue undermining its construction as a whole, namely, that industrial law (both statutory and in the general law) is distinct from work health and safety law, although there are obvious practical parallels and harmony between the two laws should be promoted (see [140]-[143] below). To misunderstand that distinction is to pay insufficient heed to the statutory language in the first order, for example, in circumstances where the Union submitted that what s 99(3)(a)(ii) and (iii) envisage is “membership of a group of workers that a union [or a health and safety representative] is able to represent”. That submission distorts the statutory text, which refers to a group of workers that the relevant body or person is “representing”, in the active voice. Further, as noted above, a health and safety representative is not “able” or “entitled” to represent a work group; it represents that work group.

60. [137]

    In Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 at [35] (“Black”), Simpson AJA addressed a comparable argument concerning the relevance of similar words in “cognate legislation” in the construction of a particular statutory provision. In the present case, the Union’s reliance upon the Dunlop Rubber line of authority in support of its construction raises a similar argument in practical terms, by reference to s 540(6) of the FW Act (see [116] above).

61. [138]

    Returning to Black, in that case the Crown sought to rely on s 66(1)(b) of the Criminal Procedure Act 1986 (NSW), which requires a charge certificate to specify “the offences that are to be the subject of the proceeding against the accused person”, in support of a construction of s 25E(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) whereby the words “that offence … the subject of the proceedings” would encompass “more than one offence”. In rejecting that argument, Simpson AJA reasoned that:

62. [139]

    The same observation can be made in respect of the relationship between s 99(3)(a)(iii), with its use of the word “representing”, and s 540(6) of the FWRO Act, with its use of the words “entitled to represent” (in order to give express statutory effect to the longstanding general law principle established in Dunlop Rubber and re-affirmed in Regional Express) as was made by Simpson AJA in Black concerning the relationship between the Criminal Procedure Act and the Crimes (Sentencing Procedure) Act.

63. [140]

    The Commonwealth FWRO Act, and the aforementioned judicial decisions, are clearly directed towards a context and purpose far removed from that of the National Law, namely, “relations within workplaces between federal system employers and federal system employees and … [the reduction of] the adverse effects of industrial disputation” (see s 5(1) of the FWRO Act). The National Law, on the other hand, is expressly directed to the provision of “safe railway operations in Australia”, one small aspect of which, amongst many others, is consultation with unions in specific circumstances.

64. [141]

    This point may be encapsulated in the observation that whilst the FWRO Act is an industrial law statute, in the sense that it governs the relationships between employers and employees, including the conciliation and arbitration of industrial law disputes, the National Law is a regulatory statute governing a particular industry, with the promotion of safety within that industry at its heart. Taken in addition to the textual distinctions considered at [115]–[119] above, that observation suffices to distinguish the meaning of the word “representing” in s 99(3)(a)(iii) of the National Law from the concept of union “representation” in the general law.

65. [142]

    That distinction also operates necessarily to confine the scope of the “representation” contemplated by s 99(3)(a)(iii), in circumstances where the Dunlop Rubber and Regional Express line of authority has as its axis the law of industrial conciliation and arbitration. On that axis, “[t]he participation by unions is critical to a system of conciliation and arbitration like the one that has existed in NSW for over 120 years and also existed in the Commonwealth too in the 20th century” (see Secretary of the Ministry of Health v The New South Wales Nurses and Midwives’ Association [2022] NSWSC 1178 at [615]) or, to put it another way, “[t]he system of arbitration adopted by the [Commonwealth Conciliation and Arbitration Act 1904 (Cth)] is based on unionism. Indeed, without unions it is hard to conceive how arbitration could be worked” (see H B Higgins, A New Province for Law and Order (Constable, 1922) at 15).

66. [143]

    The same cannot be said of union participation in the regulation of safe railway operations in Australia, save for the extent to which their consultation is mandated by the text, properly construed, of the National Law. In this regard, there is a danger to the Union’s construction of s 99(3)(a)(iii) in that it depends largely on matters extraneous to the language of the statute and essentially cannot stand by reference to the statutory wording in the first order (see Black at [33]). Put another way, the Union’s proposed construction of s 99(3)(a)(iii) cannot stand with the principle that the process of statutory construction must “start and end with a consideration of the text of the statute”: see, for example, Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; [2007] HCA 1 at [116].

67. [144]

    Of course, it is axiomatic that consideration of the text and immediate context can only go so far and regard must be had to the broader context of s 99(3)(a)(iii), which “extends to the existing state of the law, legislative purpose and any mischief which the statute was intended to remedy”: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 at 408; Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 at [324]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]. As to the first aspect of “broader” context, namely, the “existing state of law”, it has been dealt with at [114]–[119] above.

68. [145]

    The necessary inquiry into the broader contextual matters bearing upon the construction of s 99(3)(a) is made slightly more difficult by the fact that none of the explanatory note or second reading speeches accompanying the Rail Safety (Adoption of National Law) Bill 2012 (NSW) expressly refer to consultation requirements, either with a union or more generally. Instead, the explanatory note simply paraphrases the statutory purpose and objects as contained in s 3 of the National Law. Consideration of those objects, as expressly enshrined by the National Law, is an important step in the process of construing s 99(3)(a).

69. [146]

    This step was expressly picked up in Mr Boncardo’s submissions, both written and oral, which emphasised that one of the stated objects of the National Law is “to promote the effective involvement of relevant stakeholders, through consultation and cooperation, in the provision of safe railway operations” (s 3(2)(j)) (emphasis added). Absent a formal definition of “relevant stakeholders”, it was argued that, in the context of the entire scheme contemplated by the National Law, unions (such as the Union) are “relevant stakeholders”. It was said to follow, in reliance upon cl 7 to Sch 2 of the National Law, that a broad construction of s 99(3)(a)(iii) that required a greater degree of union consultation would best achieve the above-mentioned object (s 3(2)(j)).

70. [147]

    On its face, I accept that argument, as it is trite to observe that a greater degree of consultation corresponds to a greater degree of involvement by relevant stakeholders, and s 99(3)(a)(iii) expressly contemplates that a “union representing any of the persons in s 99(3)(a)(ii)” is a relevant stakeholder. This is completely in step with the overarching object of the National Law, into which unions are undoubtedly incorporated as a point of consultation because they can, and do, play an important role in the identification and thereby the avoidance of risks that may compromise the safety of railway operations in Australia (see, also, s 3(1)(c) of the WHS Act, which provides that the Act should operate to “encourag[e] unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices”). However, the status of a union as a “relevant stakeholder” does not unilaterally correspond to an unfettered right to consultation, the specific scope and nature of which is fixed by the words of s 99(3)(a)(iii) of the National Law.

71. [148]

    In this regard, I reject Aurizon’s argument that the Union, or any relevant union for that matter, is not a “relevant stakeholder” under the National Law because it is not specified as a party bearing “shared responsibility for rail safety” in s 50(1) of the National Law. Section 50(3)(b) of the National Law specifies that “the persons and classes of persons referred to in subsection (1)” (which does not include unions) should “be consulted on… measures to manage risks to safety associated with railway operations”. Aurizon’s reliance on this provision is misguided on two bases. First, s 50 is directed to the duties of the specified parties in implementing and managing the scheme contemplated by the National Law, as opposed strictly to consultation (as is s 99(3)(a)(iii)). Taking this factor into account, it is entirely reasonable that unions would not be held responsible for the implementation of the scheme. In fact, there would be valid questions about the propriety of any such arrangement on the language of s 50.

72. [149]

    Secondly, the absence of unions from s 50 is of little to no moment once reference is made to s 99(3)(a)(iii), which expressly mandates that any union “representing the persons referred to in s 99(3)(a)(i)” is to be consulted with prior to the approval of a safety management system variation. In this regard, there is a somewhat circular inquiry, as attention is diverted back to the proper meaning of the word “representing” in s 99(3)(a)(iii) as the fulcrum of the construction issue. This much was candidly acknowledged/conceded by Mr Boncardo in oral argument, who emphasised the importance of s 3(2)(j) of the National Law in construing s 99(3)(a)(iii), with the qualification that “a union is contemplated as being a relevant stakeholder for the purposes of s 99(3)(a)(iii) in the event that it represents, in the sense of being entitled to represent the individual interests of, workers likely affected by the safety management system” (emphasis added). I take this as an acknowledgement that the object stated in s 3(2)(j) cannot unilaterally transpose the words of s 99(3)(a)(iii) to assume the construction contended for by the Union. Rather, there must be concomitant textual or contextual factors supporting that construction, particularly in respect of the word “representing”.

73. [150]

    This aligns with the state of High Court authority concerning the proper approach to statutory construction, which emphasises that the process must begin and end with the statutory text. That formulation arises from Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 (“Consolidated Media”), where the Court unanimously held at [39] that:

74. [151]

    Although these authorities were not expressly cited by Aurizon, their effect was adopted in its ultimate submission that the Union’s construction of s 99(3)(a)(iii) “requires the Court to effectively read the words ‘entitled to represent’ in place of the language actually used by the National Law (‘representing’)”, where the context and purpose of the National Law do not support such a reading.

75. [152]

    I accept this submission, having regard to the language of the provision and the preceding contextual matters raised by the parties. Although Mr Boncardo properly contended that the Union’s construction of s 99(3)(a)(iii) would give effect to the object in s 3(2)(j), that point cannot, in and of itself, oust the words used in s 99(3)(a)(iii), namely, “representing”. Further, I do not accept the inverse point implicit in the Union’s argument, that Aurizon’s construction would not give effect to the object in s 3(2)(j). In this regard, Dr Roche dealt with the practical implications of Aurizon’s preferred construction in oral argument as follows:

76. [153]

    The “practical difficulties” foreshadowed by Dr Roche in the submission extracted above were raised by the Union in writing, as follows:

77. [154]

    The influence of these “practical difficulties” can be dealt with in relatively short compass. First, the Union’s submissions at [21] somewhat overstate the “difficulty” created by those practical matters, in circumstances where the criteria of union membership are relatively well settled, thereby providing for a relatively straightforward inquiry for the purposes of determining whether the s 99(3)(a)(iii) consultation requirement is enlivened. For example, a worker’s union membership status is undoubtedly an objective fact, such that the Union’s reference to a worker’s subjective intention is misguided and arguably irrelevant.

78. [155]

    To the extent that, to support its proposed construction, the Union relies upon perceived incongruity between the right to freedom of association and any enquiry by Aurizon into whether the workers referred to in s 99(3)(a)(i) are members of a union, that reliance is not assisted by Mr Boncardo’s reference to s 349(1)(b) of the Fair Work Act, which provides:

79. [156]

    It is not contended that Aurizon’s construction of s 99(3)(a)(iii) would require Aurizon to knowingly or recklessly make misrepresentations to workers regarding their right to union membership. Nor does Aurizon’s construction derogate from a worker’s right to refuse to answer any enquiry as to their union membership, where they have been informed that such enquiry has been made for the purposes of enlivening the consultation requirement in s 99(3)(a) of the National Law. The practical relevance of this point, as raised by the Union, is further limited when s 349(1)(b) is read with s 346 of the Fair Work Act, which prohibits “adverse action” being taken by an employer against an employee on the basis that the employee is an officer or member of a union.

80. [157]

    Second, in relation to the Union’s submission in [22] regarding the time at which the consultation requirement crystallises being something of a “straw man argument”, in that although it is correct that Aurizon did not expressly address this matter, that omission properly reflected the fact that the matter of timing was not in dispute for the purposes of ground 5 of the Amended Summons. It is clear, on the terms of s 99(3)(a), as a matter of practical logic and in light of the settled understanding of “consultation” at general law (see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd [2010] FCA 591; (2010) 268 ALR 514 at [45]), that consultation must occur at some time after the variation is proposed and before it is submitted for final determination. Once the requisite consultation has occurred, to the satisfaction of the railway operator, the persons required to be consulted and the ONRSR, then the statutory obligation is discharged and need not occur continuously. It is of no consequence that persons required to be consulted may join the operation at some indeterminate time in the future, as re-opening the consultation requirement would create a potentially infinite loop of consultation and give rise to an “unreasonable, capricious, [or] absurd” set of consequences (Friends of Leadbeter’s Possum Inc v VicForests (2018) 260 FCR 1; [2018] FCA 178 at [227] (“Leadbeter’s”); see, generally, Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26).

81. [158]

    The two aforementioned matters foreshadow the third, and arguably most important, point on this issue, which is that the “difficulties” raised by the Union are, at their highest, just that, and do not rise to the level of unreasonableness, capriciousness or absurdity. The limited relevance of such practical considerations, which cannot supplant the orthodox contextual process of statutory construction, is well settled, and was pellucidly described by Sundberg, Jessup and Middleton JJ in ConnectEast Management Ltd v Commissioner of Taxation (Cth) (2009) 175 FCR 110; [2009] FCAFC 22 at [41] (“ConnectEast”):

82. [159]

    This statement remains good law and underscores that the practical difficulties raised by the Union cannot displace the words of s 99(3)(a)(iii) properly construed. Indeed, the very case relied upon by the Union to support the relevance of those matters extracted at [153] above in fact tends to defer to the principle affirmed in ConnectEast. Thus, in Leadbeter’s, Mortimer J (as her Honour then was) reasoned as follows at [227]–[230] (see, also (2021) 285 FCR 70; [2021] FCAFC 66, allowing an appeal against the substantive relief in that matter):

83. [160]

    Fourthly and finally, to the extent that the matters in [22] raise questions of fact, reasonableness, logic or rationality in respect of Mr Doggett’s opinion as to the satisfaction of the consultation requirement, including by reference to the asserted resignation of a number of contracted workers from a particular union, such questions are properly directed to ground 2B of the Amended Summons. Ground 2B asserts that Mr Doggett fell into “jurisdictional error by unreasonably or irrationally concluding that there was no requirement that the plaintiff be consulted… because the plaintiff had no members amongst affected rail safety workers” in circumstances where Mr Doggett was aware of Mr Wright’s email sent on 8 February 2022. There is no assertion of unreasonableness or irrationality in ground 5, which is directed to the misapprehension of a statutory function by the misconstruction of s 99(3)(a)(iii).

84. [161]

    The Union sought to fortify its argument by referring to the “beneficial and remedial purpose of s 99(3)” in its written reply submissions as follows:

85. [162]

    It is broadly correct to describe the National Law as a “beneficial” statute, given that it is concerned with the promotion of “industrial safety” (see, for example, Waugh v Kippen (1986) 160 CLR 156; [1986] HCA 12; Deal v Father Pius Kodakkathanath (2016) 258 CLR 281; [2016] HCA 31 at [36], cited in P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters), to describe s 99(3) as a “beneficial” provision in promoting direct consultation with the persons specified in subs (3)(a) (see, for example, ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 at [29]), and to observe that those descriptions may be relevant to the extent that s 99(3)(a)(iii) gives rise to a “constructional choice”. However, the “beneficial” status of s 99(3), much like the aforementioned “practical consequences”, cannot displace the orthodox process of statutory construction, taking account of context and purpose.

86. [163]

    In this regard, in Sydney Seaplanes, Leeming JA wrote at [97]:

87. [164]

    That observation is equally apt in the present case, where the preceding textual and contextual matters (such as the words of confinement in s 99(3)(a)(i); the broader language of “any relevant union” in s 249(2)(c); that membership of a work group enlivens representation for the purposes of s 99(3)(a)(ii); the distinct context of work health and safety; and, most obviously, the clear textual distinction between “representation” and an “entitlement to represent” (cf, Dunlop Rubber), indicate that the word “representing” in s 99(3)(a)(i) ought to be construed more narrowly than what is contended for by the Union.

88. [165]

    The significance of these factors is not diminished or relegated by the “beneficial” character of the provision. For example, the argument that consultation with a union “entitled to represent” the workers in s 99(3)(a)(i) is an aspect of the “beneficial and remedial” status of the wider provision is undermined by the fact that subs (3)(a)(i) expressly mandates direct consultation with those workers (see [122]–[124] above), which is an aspect of the overarching purpose of the provision. That matter points further against reading “representing” as referring to an “entitlement to represent”, and in favour of union membership enlivening the requirement of representation.

89. [166]

    For the foregoing reasons, Mr Doggett did not fall into jurisdictional error by misconstruing the requirement under s 99(3)(a)(iii) as limited to consultation with unions who have amongst their members the persons referred to in s 99(3)(a)(i). It follows that ground 5 of the Amended Summons must be rejected.

90. [167]

    By ground 1B of the Amended Summons, the Union contended that Mr Doggett fell into jurisdictional error by “misapprehending the nature of the opinion he was required to form under ss 65(c)(iii) and 60(1)(a) of the [National Law] by misconstruing the requirement under s 99(3)(a)(i) of the [National Law] as limited to consultation with persons who carry out railway operations, rather than as extending to persons who work on or at the operator’s railway premises or with the operator’s rolling stock”.

91. [168]

    Ground 1B, like ground 5, therefore raises a point of construction, in respect of s 99(3)(a)(i) of the National Law. However, unlike ground 5, which received considerably more attention in written and oral argument, ground 1B may be dealt with in relatively short compass, given that the process of statutory construction must begin and end with the statutory text, contextual matters only assisting insofar as they “assist in fixing the meaning of the statutory text” (Consolidated Media at [39]; see, for example, Interpretation Act 1987 (NSW) s 34).

92. [169]

    It was common ground between the parties, by reference to the Statement of Reasons, that Mr Doggett had confined his consultation, for the purposes of s 99(3)(a)(i), to “persons who carry out those railway operations”, namely, “the crew on the prospective new national route”. In this regard, Aurizon submitted that:

93. [170]

    That Mr Doggett had determined that the latter two categories of rail worker specified in s 99(3)(a)(i) were not “likely to be affected” by Aurizon’s application was said by Dr Roche to be borne out by the following passages from the Statement of Reasons:

94. [171]

    Two observations ought to be made in response to that submission. First, at [12] of the Statement of Reasons, Mr Doggett did no more than to recite the terms of s 99(3)(a) of the National Law, without any regard to its proper construction or application. This cannot unilaterally serve to establish that Mr Doggett sought to consult with the persons specified in s 99(3)(a)(i) as “likely to be affected”, especially where it was conceded by Dr Roche that he did not. In this regard, the reliance upon [12] of the Statement of Reasons was misguided and somewhat anomalous.

95. [172]

    Secondly, whether Mr Doggett was satisfied that persons who “work on or at the operator’s railway premises or with the operator’s rolling stock” were “likely to be affected by a variation of the SMS” is not to the point, in circumstances where ground 1B contends that such satisfaction was itself premised on an erroneous construction of s 99(3)(a)(i). Thus, the relevant question becomes one of the proper construction of that provision.

96. [173]

    Turning to that question, I accept the Union’s submission that Mr Doggett misconstrued s 99(3)(a)(i) of the National Law by determining that persons who “work on or at the operator’s railway premises or with the operator’s rolling stock” were not “likely to be affected by a variation of the SMS”. Section 99(3)(a)(i) clearly and expressly contemplates that all of the persons referred to therein (see [125]) are “likely to be affected” by a proposed variation to a safety management system and are therefore required to be consulted prior to the variation of a safety management system.

97. [174]

    In this respect, s 99(3)(a)(i) may be said to operate as a deeming provision, by use of the word “being”, in that although (presumably as was considered by Mr Doggett) certain persons specified in s 99(3)(a)(i) may not in fact be affected personally or directly by a particular safety management system, the provision establishes that they are likely to be, as a form of “statutory fiction”, in order to give effect to the purpose and objects of the National Law, namely to “provide for safe railway operations in Australia” (s 3(1)) and “to promote the effective involvement of relevant stakeholders, through consultation and cooperation, in the provision of safe railway operations” (s 3(2)(j)). (On the matter of deeming provisions and statutory fictions, see, generally, Redland Shire Council v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641; [1974] HCA 4 at 655 per Gibbs J; Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62 at [115]; Plaintiff B9/2014 v Minister for Immigration and Border Protection (2014) 227 FCR 494; [2014] FCAFC 178 at [21]–[23]. I do not consider that there is relevantly any distinction between the word “being” – as appears in s 99(3)(a)(i) – and the words “is taken to be” or similar formulations.

98. [175]

    Seen in that light, this construction finds favour with cl 7 of Sch 2 to the National Law, which prefers “the interpretation that will best achieve the purpose and object of this Law” over any other interpretation. It is axiomatic that consulting with all of the workers specified in s 99(3)(a)(i) will “promote the effective involvement of relevant stakeholders, through consultation and cooperation, in the provision of safe railway operations” (s 3(2)(j) of the National Law).

99. [176]

    To accept the contrary construction advanced by Aurizon would be essentially to excise the words “work on or at the operator’s railway premises or with the operator’s rolling stock” from s 99(3)(a)(i), which is entirely untenable having regard to the overarching purpose of the National Law, which is itself to be achieved in part by the promotion of effective consultation with relevant stakeholders. One would be hard-pressed to think of more relevant stakeholders than the persons working at an operator’s premises or with its rolling stock, who are the immediate colleagues of the “persons who carry out those railway operations”. The construction favoured by Aurizon is also untenable by reference to the Consolidated Media principle (at [39]), whereby the text must fundamentally inform the construction of the statutory provision.

100. [177]

     The preceding discussion may appear to suggest that s 99(3)(a)(i) gives rise to a “constructional choice”, to be determined by reference to context and purpose, in light of ambiguity in its terms. However, that is not the case. Rather, Aurizon’s contended construction proceeds on the fundamental misapprehension of s 99(3)(a)(i) as providing a non-exhaustive list of “persons likely to be affected” (as would ordinarily be indicated by the use of the word “including”), whereas the provision expressly provides that “persons who work on or at the operator’s railway premises or with the operator’s rolling stock” are, as mentioned above, essentially deemed to be “persons likely to be affected” by the proposed variation. This is indicated by the deliberate use of the word “being”, which casts a wider net of consultation with rail workers directly.

101. [178]

     My conclusion on the construction of s 99(3)(a)(i) is fortified by an important aspect of the provision’s immediate context, namely s 99(3)(a)(ii) and (iii). As was discussed at length in relation to ground 5, those sub-sections mandate consultation with health and safety representatives and/or any union representing “any of the persons referred to in subparagraph 99(3)(a)(i)” (emphasis added). It is therefore clear that those provisions treat the persons referred to in subpar (i) as “likely to be affected by a variation of the SMS” and, thus, required to be consulted. Indeed, it would be a very unusual reading of the National Law if representatives of persons who “work on or at the operator’s railway premises or with the operator’s rolling stock” were required to be consulted, with that consultation requirement not extending to the workers themselves.

102. [179]

     It follows, for the reasons given above, that Mr Doggett’s determination as to the consultation requirement in s 99(3)(a)(i) was infected by legal error. However, that does not suffice to uphold ground 1B, in circumstances where Mr Boncardo confined the relief sought to an order in the nature of certiorari predicated upon the existence of jurisdictional error by Mr Doggett and it being beyond dispute that “not every error of law is a jurisdictional error”: Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [66] (“Kirk”); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163]; Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431; (2022) 320 IR 198 at [176] (“Paramedics Association”).

103. [180]

     At the outset of this inquiry, it is important to note three matters of principle regarding jurisdictional error, the subject having recently received consideration by the High Court in Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3 (“Stanley”). First, whether a particular error of law is jurisdictional will depend on the proper construction of the relevant statute which is, in this case, the National Law (see Stanley at [56] per Gordon, Edelman, Steward and Gleeson JJ; Project Blue Sky at [91]; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [34]; Hossain at [27]; MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 at [30]). Secondly, jurisdictional error (including by an inferior court) will be made out if the decision-maker “misconstrues [the statute conferring its jurisdiction]… and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case” (Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at 177–178 (“Craig”)). This is the very form of error raised by ground 1B.

104. [181]

     In Craig, the High Court drew a distinction between inferior courts and “statutory tribunals” in considering the relevant threshold of jurisdictional error. In that regard, the Court made the following observations (at 176–179):

105. [182]

     The distinction described in the above passage reflects the third relevant principle regarding jurisdictional error in Australian law and is largely dispositive, for the reasons given below, of the question of whether Mr Doggett fell into jurisdictional error by misconstruing s 99(3)(a)(i) of the National Law.

106. [183]

     In Paramedics Association at [179], I observed that “[t]here has been some debate as to whether Craig’s distinction or presumption still holds”, without deciding that issue (see, also, M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) at [4.360]).

107. [184]

     This debate was not ventilated in the present matter and, thus, the Court has not been directed to any authority to suggest that the distinction described in Craig, between an inferior court and a “statutory tribunal”, has been usurped or seriously undermined. Rather, in Stanley, the majority of the High Court gave implicit endorsement to the distinction in stating that Craig authoritatively “described the scope of an inferior court’s ordinary jurisdiction” (at [56]). Further, at [161], Jagot J (in describing “some basic principles” of jurisdictional error) stated that in Craig “the distinctions between the jurisdiction of an inferior court and a statutory tribunal and between an error within and outside jurisdiction were confirmed” (emphasis added).

108. [185]

     In New South Wales, to the extent that there has been some flexibility surrounding the Craig distinction, that flexibility has been confined to circumstances where a statutory tribunal was, in essence, exercising jurisdiction “similar to the ordinary jurisdiction of a court of law” (Absolon v NSW TAFE Commission [1999] NSWCA 311 at [146]), where the relevant statute granted a right of appeal against a tribunal’s decisions on “pure questions of law” (see Custom Credit Corporation Ltd v Commercial Tribunal of New South Wales [2000] ASC 155-041; [1999] NSWSC 1021 at [101]−[102]) or, most pertinently, where the relevant statute granted the decision-maker the power to determine a question of law authoritatively (see Paramedics Association at [179], cf Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 at [36] (“Chase Oyster Bar”)).

109. [186]

     None of those circumstances endure in relation to Mr Doggett’s decision-making power, nor to the relevant terms of Pt 3, Div 4 and Div 6, Sub-div 1 of the National Law, governing the “accreditation” (and variation) and “safety management system” procedures. Indeed, one may consider that the distinction in Craig would bear even greater weight against the position that Mr Doggett could fall into non-jurisdictional error of law, given that he was not a member of, or empowered by an Act constituting, a “statutory tribunal” formed for the purposes of resolving disputes between parties. Rather, he was an individual (and delegated) administrative decision-maker (aligning most closely with the final category of “courts, tribunals and bureaucrats”; see Judicial Review of Administrative Action and Government Liability at [4.360]).

110. [187]

     On the proper construction of s 99(3)(a)(i) and the National Law more broadly, that characterisation of Mr Doggett’s decision-making authority operates to confine the scope for non-jurisdictional error of law significantly. In the first order, s 99(3)(a)(i) provides for a mandatory process of consultation, by the use of the word “must” in subs (3). That mandatory language is also reflected in s 65(c)(iii) of the National Law (the application of which to a variation application is prescribed by s 69(1)), which relevantly provides that the “Regulator must not grant accreditation to an applicant unless satisfied that the applicant has demonstrated… that the applicant… has met the consultation requirements set out in Division 6 in relation to the applicant’s safety management system” (emphasis added).

111. [188]

     The deliberate use of that mandatory language (cf, “is to assess” per s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) in Stanley, which was held to be a jurisdictional requirement in respect of an inferior court) is a significant textual indicator that Parliament did not intend to vest the Regulator (or a delegate, such as Mr Doggett) with jurisdiction to determine the scope of the consultation requirement in s 99(3), such that failure to apply s 99(3)(a)(i) on its proper construction constituted a “misconception of the nature of the function” being performed under the National Law and caused the decision-maker to fall into jurisdictional error. This line of reasoning accords with what was said by Spigelman CJ in Chase Oyster Bar at [38]–[41], as follows:

112. [189]

     I would make a similar observation with respect to the words “must, so far as is reasonably practicable” (in s 99(3)(a)) and, perhaps more critically, to the words “must not grant accreditation… unless satisfied that the applicant has demonstrated” (in s 65 of the National Law). In circumstances where Mr Doggett misconstrued s 99(3)(a)(i) and did not consult with particular persons “likely to be affected” by the proposed variation, it was not possible for him legally to be satisfied that the applicant had met the consultation requirements in Pt 3, Div 6 of the National Law. It follows that, in determining the variation application as he did, Mr Doggett fell into jurisdictional error.

113. [190]

     This conclusion reflects the proper inquiry to be undertaken by this Court, that is, into whether the decision-maker’s state of satisfaction (i.e. as to the consultation requirement) “has been properly formed according to law”: QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; (2013) 67 MVR 322 at [36] (“Miller”). In that same paragraph of Miller, which was cited by Aurizon in its written submissions, Basten JA quoted the following passage from the judgment of Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42 at 432:

114. [191]

     Nothing in the statutory context, nor the purpose or structure of the National Law, undermines the positive conclusion as to jurisdictional error, particularly where the provision of safe railway operations (including through the promotion of effective stakeholder consultation) is the paramount purpose of the statute.

115. [192]

     All of these considerations serve simply to fortify the consideration of Craig, whereby, having “asked [himself] a wrong question” as to s 99(3)(a)(i), Mr Doggett exceeded his authority and powers under the National Law and therefore reached a decision “otherwise than in accordance with the law”. Such an error of law “is jurisdictional error which will invalidate any order or decision… which reflects it”.

116. [193]

     Ultimately, this was reflected in Dr Roche’s comment that “to be clear… we would accept if the decisionmaker had misconstrued the statute, that would be a jurisdictional error”.

117. [194]

     I would uphold ground 1B.

118. [195]

     Contrary to the structure of the Amended Summons and the wording at the outset of ground 5 (“[f]urther and in the alternative to ground 2B… above”), the Union acknowledged that ground 2B was in fact advanced in the alternative to ground 5 and was premised on “the construction of s 99(3)(a)(iii) contended for [by the Union] being rejected and s 99(3)(a)(iii) requiring that for a union to represent one or more persons referred to in s 99(3)(a)(i), those persons need to be a member of the union”. For the reasons given at [112]–[166] above, I rejected the Union’s contended construction of s 99(3)(a)(iii) and dismissed ground 5 of the Amended Summons.

119. [196]

     For the reasons given subsequently, at [167]–[194], I upheld ground 1B of the Amended Summons and found that Mr Doggett’s decision to approve Aurizon’s variation application was vitiated by jurisdictional error. On that basis, it is not strictly necessary to determine ground 2B. However, in the interests of completeness, I will address the parties’ arguments on this ground briefly as follows.

120. [197]

     As already noted, ground 2B asserted that Mr Doggett fell into jurisdictional error by “unreasonably or irrationally concluding that there was no requirement that the plaintiff be consulted with in relation to the proposed variation… because the plaintiff had no members amongst affected rail safety workers”. The source of the asserted unreasonableness or irrationality was said to be the email described at [62] above, from Mr Wright to Mr Sallis.

121. [198]

     That email was sent at 2.54pm on 8 February 2022 and read as follows:

122. [199]

     Mr Wright’s email was in reply to the following email from Mr Sallis, which was sent two hours earlier, at 12.54pm on 8 February 2022:

123. [200]

     Critically, on 9 February 2022, Mr James forwarded Mr Sallis and Mr Wright’s email correspondence from the previous day to Mr Wagner (ONRSR’s Director of Operations), accompanied by the following covering email (see [64] above):

124. [201]

     At [26]–[27] of the Statement of Reasons, Mr Doggett summarised the preceding correspondence as follows:

125. [202]

     At [37]–[38] of the Statement of Reasons, Mr Doggett summarised his opinion as to Aurizon’s satisfaction of the consultation requirement in the following terms:

126. [203]

     The Union seized upon these passages as disclosing unreasonableness or irrationality on the basis that Mr Doggett failed to “grapple” with the email exchange, going so far as to submit that “Mr Doggett appears to have blithely ignored Mr Wright’s… email [of 8 February 2022]… notwithstanding that he refers to it at [26(b)] to the Statement of Reasons”. I find it very difficult to reconcile those two portions of the Union’s argument; prima facie, the reference to the RTBU’s reply email to Aurizon at [26(b)] is the logical opposite of ignorance of that email, which undermines the very basis of ground 2B.

127. [204]

     Even taking this argument at its highest, as suggesting that [26] and, in particular, [27] constituted an inaccurate summary of the correspondence and could not support the conclusion in [37], I do not accept it. For instance, Mr Wright’s email was not received by the ONRSR in an information vacuum. Instead, it must be understood in context, as part of the exchange of correspondence between the parties on 8 and 9 February 2022, which is reflected in the composition of [26] of the Statement of Reasons. Further, [27] does not purport to quote Mr James’ email. It simply seeks to summarise the relevant conclusion contained therein, namely that Aurizon did not accept the correctness of Mr Wright’s statement that some of the “Trojan employees” were members of the Union as of 8 February 2022.

128. [205]

     In that respect, the Union’s submission as to the import of [26]–[27] and [37] of the Statement of Reasons falls well foul of Brennan CJ, Toohey, McHugh and Gummow JJ’s warning that “the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].

129. [206]

     It was not in dispute between the parties that to succeed on a ground asserting unreasonableness, irrationality, or illogicality in an administrative decision, one must satisfy a “very high bar”, such that the Union was required to demonstrate that “no rational decision maker could have reached the conclusion in the first sentence of [37] [of the Statement of Reasons] on the materials available”. This accords with the preponderance of authority concerning what was formerly known as “Wednesbury unreasonableness”: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [26]–[29]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]–[131]; Minister for Immigration and Border Protection v MZZMX (2020) 280 FCR 1; [2020] FCAFC 175 at [23]; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [32]–[35] (“Djokovic”). In Djokovic at [35], the Full Court indicated that:

130. [207]

     Mr Boncardo accepted that Mr Sallis’ initial email to Mr Wright on 8 February 2022 “by itself… does [not], in terms of the conclusion that none of the affected rail safety workers were members of the RTBU”, support a finding of unreasonableness, irrationality or illogicality. However, as noted above, and in terms, he contended that Mr Wright’s reply at 2.54pm would have led any reasonable and rational decision-maker not to conclude that “none of the affected rail safety workers were members of the [Union]”. It was the Union’s core submission that this was not undermined by Mr James’ email to Mr Wagner on 9 February 2022. To that effect, the Court’s attention was drawn to the following matters:

131. [208]

     I do not accept these contentions. In respect of point a), the characterisation of Mr Wright’s language as “pellucidly clear” overlooks the subsequent qualification that the workers were “Trojan employees not Aurizon”. Further, in circumstances where there would be only 10 Trojan employees engaged to operate the crew cars (see [51] above), the reference to “members that will be doing this working [now]” was lacking in concrete detail. One may have expected such detail in circumstances where Mr Sallis had previously asserted Aurizon’s understanding that there were no crew car workers amongst the Union’s members, and where his email followed “discussions [with Mr Wright] last week” and sought to provide “confirmation” of Aurizon’s understanding.

132. [209]

     Turning to points b) and c), I consider the effect of Mr James’ email to Mr Wagner on 9 February to be insurmountable, as the email plainly sets out the basis for Aurizon’s belief that Mr Wright’s assertion was incorrect, namely, independent consultation with Trojan and the relevant workers themselves, which yielded information that “a couple of workers have resigned from the RTBU in recent times”. To the extent that the Union submits that this information gave rise to “a further degree of imprecision and ambiguity”, it cannot and does not rise so high as to found unreasonableness, irrationality or illogicality in reliance thereupon. Further, the distinction between an assertion of objective incorrectness and a belief as to incorrectness is immaterial and takes an excessively fine-toothed comb to the evidence.

133. [210]

     Finally, the matter in d) is not strictly to the point, given that (at [37] of the Statement of Reasons) Mr Doggett stated that he “had no reason to doubt Aurizon’s credibility in connection with this evidence, or at all”. It is also prudent to note that the correspondence between Mr Sallis and Mr Wright on 8 February 2022 was received by the ONRSR in response to Mr Doggett having tasked Mr Wagner “out of an abundance of caution to seek further written evidence in relation to consultation… to confirm the accuracy of the proposition in the Decision Brief that there was no need for Aurizon to consult the [Union] in relation to the variation” (Statement of Reasons at [34]–[35]). Further, the Union’s complaint about a lack of objective evidence to discount Mr Wright’s assertion in his email of 8 February 2022 may apply with equal force to that very email (expanding upon the matters raised at [209] above). It may also be telling that Mr Wright did not follow his email up until 14 February 2022 at 4:17pm, some six days after he sent it (only two hours after Mr Sallis’ initial email), in circumstances where the decision on the variation application was made on 11 February 2022.

134. [211]

     For the foregoing reasons, I find that Mr Doggett’s conclusion that the Union was not consulted “because none of the affected rail safety workers were members” of the Union was not unreasonable, irrational or illogical. Rather, it was based on findings or inferences of fact logically supported by the body of documentary evidence before him.

135. [212]

     Although it is not strictly necessary to reach a conclusion on this ground, I would reject ground 2B of the Summons.

136. [213]

     Ground 1C is expressed as “further and in the alternative to 1B”, which ground has been upheld. It is unnecessary then to decide ground 1C.

137. [214]

     As Dr Roche correctly submitted, even though ground 1A is not expressed in the alternative, it is framed on the basis that Aurizon had consulted with the classes of persons referred to in s 99(3)(a)(i) of the National Law. As the requisite consultation under that provision has been found not to have occurred, per my findings with respect to ground 1B, ground 1A is strictly speaking not engaged, and any analysis is academic. It is unnecessary to decide this ground.

Conclusion

1. [215]

   The Court rejects grounds A1, 2B and 5 of the Amended Summons. The Court upholds ground 1B and finds it unnecessary to decide grounds 1A and 1C.

2. [216]

   The Union confined the relief sought to an order in the nature of certiorari as expressed in the second prayer for relief in the Amended Summons. Having regard to the findings of the Court as to jurisdictional error under ground 1B that relief is available although there was little discussion of the final form of orders in that respect during the hearing of the matter.

3. [217]

   It is appropriate that Short Minutes of Order be brought in by the Union after consultation with the Defendants to reflect this judgment.

4. [218]

   I will reserve the question of costs.

5. [219]

   The parties should confer as to a timetable with respect to any disputed question regarding costs and otherwise provide Short Minutes of Order agreeing costs either in the Short Minutes mentioned above at [217] or by separate Short Minutes filed later in time in accordance with the directions of the Court.

Directions

1. [220]

   The Court makes the following directions:

   1. (1)

      The Union shall bring in Short Minutes of Order by 10.00am Thursday 11 May reflecting this judgment.

   2. (2)

      Costs are reserved.

   3. (3)

      Any agreement as to costs may be incorporated in Short Minutes of Order brought in under 1 above or by Short Minutes of Order forwarded at a later time to the Chambers of the Court but in any case, no later than 21 days after this judgment.

   4. (4)

      Any dispute as to costs shall the determined upon a timetable agreed between the parties which timetable shall be forwarded to the Chambers of the Court within 21 days of this judgment.