CASE PROCEDURES – appeals – OH&S review – cl.81 Offshore Petroleum and Greenhouse Gas Storage Act 2006 – r.53 Fair Work Commission Rules 2013 – application by Sedco seeking revocation of a decision by NOPSEMA to issue Improvement Notice 539 (IN 539) – application made pursuant to clause 81 of Schedule 3, Part 4, Division 5 of the OPGGS Act and rule 53 of the FWC Rules – important to note that Sedco has undertaken the work required under IN 539 – parties did not agree to the approach to be adopted by the Commission in hearing the application, and consequently, the appropriate questions to be determined – Sedco submitted that the Commission was required to consider the OHS Inspector’s decision and exercise of discretion to issue IN 539 as at the date of the hearing – NOPSEMA submitted that the Commission was required when considering the OHS Inspector’s exercise of discretion to issue IN 539, to adopt a ‘historical assessment’ – the nature of the appeal must ultimately depend on the terms of the statute conferring the right [Coldhan] – when exercising its powers a Tribunal required t pay ‘attention to the state of affairs existing at the time the Tribunal makes its decision’ [Shi] – OPGGS Act does not explicitly set out the approach to be adopted by the Commission – appropriate to consider the nature of decisions which can be made by OHS inspectors and the powers of the Commission as a reviewing authority – issuance of an improvement notice is not automatic or mandatory, inspector required to exercise a discretion – Sedco’s approach to the hearing was not whether the inspector had a ‘requisite reasonable belief’, but whether the Commission, at the time of the hearing, is satisfied on reasonable grounds the Sedco was contravening the OPGGS Act – appeal by Sedco not a review in the ordinary sense, but a fresh application for the Commission to determine a matter at the time of the hearing – approach appears to be inappropriate, and somewhat artificial – the Commission was being asked to make a determination on the inspector’s decision on the basis of circumstances which he could not possibly be aware of at the time he made the declaration – Commission has wide powers of determination of the matter – tests for the issuing of an improvement notice must be in accordance with the statute – satisfied that the decision to issue an improvement notice is ‘time specific’ to an inspection being carried out, based on reasonable grounds – satisfied that the Commission, as the reviewing authority, is required to consider an OHS Inspector’s decision at the time it was made – questions for determination will be those set out by NOPSEMA. Sedco Forex International Inc v National Offshore Petroleum Safety and Environmental Management Authority t/a NOPSEMA
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