Bailey Trading as Bailey's Electrical and Building Services v Dall [2005] ICQ 16 (2005) 178 QGIG 399

[Extract from Queensland Government Industrial Gazette, dated 22 April, 2005, Vol. 178, No.17, pages 399-404] INDUSTRIAL COURT OF QUEENSLAND Electrical Safety Act 2002 – s. 172 – appeal against issue of improvement notice Colin Bailey Trading as Bailey’s Electrical and Building Services AND Allan John Dall (No. C77 of 2004) AND Colin Bailey Trading as Bailey’s Electrical and Building Services AND Allan John Dall (No. C79 of 2004) PRESIDENT HALL 7 April 2005 DECISION The aim of the Electrical Safety Act 2002 (the Act), is to eliminate the human cost to individuals, families and the community of the death, injury and destruction that can be caused by electricity; see s. 4(1) of the Act. Accordingly, the purpose which the Act seeks to achieve is the establishment of a framework for: (a) preventing persons from being killed or injured by electricity; and (b) preventing property from being destroyed or damaged by electricity; see s. 4(2) of the Act. The Act seeks to achieve that purpose, inter alia, by imposing obligations on persons who may affect the electrical safety of others by their acts or omissions, by making regulations about achieving electrical safety and by providing consumers with protection against failures of persons who perform electrical work to properly perform and complete the work; see s. 5(a), (b)(i) and (d). The obligations contemplated by s. 5(a) are imposed on a variety of persons by Part 2, Division 2 of the Act. Materially, s. 36 provides: “Obligation of installer of electrical equipment or electrical installation A person who installs electrical equipment or an electrical installation has an obligation to ensure that – (a) the way the electrical equipment or installation is installed is electrically safe; and (b) the processes followed for installing the electrical equipment or installation ensure that, when installed, it will be electrically safe; and (c) after the electrical equipment or installation is installed, the person tests and examines it to ensure it is electrically safe.”. The expression “electrically safe” is defined at s. 10(2) of the Act. Relevantly, for an electrical installation, “electrically safe” means that all persons and property are safe and free from electrical risk from the equipment or installation and all persons and property are free from electrical risk from the operation or use of the installation; see s. 10(2)(a), (b) and (c). The expression “free from electrical risk” is itself expanded by s. 10(4) to mean, for a person or property, that the electrical risk to the person or property is as low as reasonably achievable, having regard to: “(a) likelihood of harm, and (b) likely severity of harm.”. By s. 10(1) of the Act, “electrical risk” is defined as follows: “(a) in relation to a person, the risk to the person of death, shock or injury caused directly by electricity or originating from electricity; or (b) in relation to property, the risk to the property of – (i) damage caused by a cathodic protection system; or (ii) loss or damage caused directly by electricity or originating from electricity.”. The making of the Regulations contemplated by s. 5(b)(i) is authorised by s. 210 of the Act which provides: “(1) The Governor in Council may make regulations under this Act. (2) Without limiting subsection (1), a regulation may prescribe – (a) ways of discharging a person’s electrical safety obligation; and (b) ways of ensuring the electrical safety of persons or property; and (c) safety and technical requirements for electrical work; and (d) safety and technical requirements for working in contact with, or near to, exposed parts; and -- 1 of 7 -- 2 (e) safety and technical requirements, and approval requirements, for electrical equipment, including for the hiring, selling, testing and using of electrical equipment; and (f) safety and technical requirements for electrical installations, works of electricity entities, electric lines and electricity supply; and (g) amendments, cancellations, suspensions and transfers of approvals and other authorities required under the regulation; and (h) requirements for the labelling, marking and testing of electrical equipment, including requirements for the provision of electrical equipment for testing, the disposal of electrical equipment after testing, and the extend to compensation, if any, payable for electrical equipment damaged or destroyed during testing; and (i) requirements for safety management plans; and (j) safety and technical requirements, and registration requirements, for cathodic protection systems; and (k) notification and reporting requirements for serious electrical incidents and dangerous electrical events; and (l) all matters about electrical licences, including the following – (i) classes of electrical licences; (ii) the periods for which particular electrical licences are to be in force; (iii) financial and insurance requirements for electrical licence holders; (iv) particular requirements applying to the making of applications for the issue, renewal or reinstatement of electrical licences; (v) eligibility requirements for the issue, renewal or reinstatement of electrical licenses, including requirements as to suitability, requirements for particular qualifications and requirements for the successful completion of examinations or courses stated in the regulation or chosen by the chief executive; (vi) the keeping of a register for recording licence information; (vii) requirements for keeping licences and registers up to date, including for the provision of information for keeping licences and registers up to date; (viii) restrictions on advertising by electrical licence holders; and (m) discipline of electrical licence holders; and (n) matters of an administrative nature. (3) A regulation may prescribe offences for breaches of the regulation, and may fix a penalty of not more than 40 penalty units for a breach. (4) A regulation may prescribe fees payable under this Act, and may also provide for the refund or remission of fees. (5) A regulation may provide for a distribution entity to impose charges for the carrying out of activities of the distribution entity authorised under a regulation.”. By s. 41(1) and (3) of the Act, if a provision of a regulation is identified as a provision that provides a way of discharging a person’s electrical safety obligation, the person fails to discharge the electrical safety obligation if the person contravenes the regulation provision. Importantly, there is no provision to make it a defence that any alternative way in which the person adopts to discharge the electrical safety obligation gives the same level of protection as the prescribed way. The regulation making power at s. 210 of the Act has been exercised to make the Electrical Safety Regulation 2002 (the Regulations). The provisions at Part 5, Division 1 of the Regulations, are provisions which are identified as provisions which prescribe a way of discharging the electrical safety obligations of an employer or self-employed person: see s. 65. It is apparent from the heading to Part 5, viz. “Electrical Installations” and the structure of Part 5, and from the presence of Part 5 Division 2, that the obligations referred to at s. 65 are not limited to the obligations at s. 30 of the Act but include, inter alia, the obligations at s. 36 of the Act. Importantly, ss. 66 and 67 of the Regulations provide: “66 Licensed electrical worker to comply with wiring rules A licensed electrical worker who performs electrical work on an electrical installation must ensure that the electrical installation, to the extent it is affected by the electrical work, is in accordance with the wiring rules. Maximum penalty – 40 penalty units. 67 Employer to ensure electrical work complies with wiring rules A licensed electrical contractor who employs a licensed electrical worker to perform electrical work on an electrical installation must ensure that the electrical installation, to the extent it is affected by the electrical work, is in accordance with the wiring rules. Maximum penalty – 40 penalty units.”. The reference to “wiring rules” is explained by Schedule 8 to the Regulations. Schedule 8 provides that “wiring rules” *means AS/NZS 3000:2000 (Electrical installation) (known as the Australian and New Zealand Wiring Rules). -- 2 of 7 -- 3 [*Whilst it is not necessary to resolve the issue to determine the appeals before the Court, the assumption made in argument that the reference to the wiring rules is ambulatory, may not be well founded; compare Pearce and Geddes, Statutory Interpretation in Australia, 5th ed paragraph 6.19.] Breach of an obligation imposed by Part 5, Division 1 of the Regulations is a criminal offence; see s. 27 of the Act. Further, where a regulation identifies itself as a provision that prescribes a way of discharging a persons electrical safety obligation, ss. 23 and 24 of the Criminal Code Act 1899 are excluded; see s. 46(2) of the Electrical Safety Act 2002. It is however, a defence for the defendant to prove that the commission of the offence was due to causes over which the person had no control; see s. 46(1) of the Act. Of course, because the Act imposes penalties for its breach, if two reasonable constructions are open, the more lenient one should be preferred, Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2) (2001) 2 QdR 538 at [75]. Prosecution is not the only remedy for the correction of breach. Consistently with s. 5(d), s. 153 of the Act authorises a person appointed under the Act as an Inspector who reasonably believes that a person (a) is contravening a provision of the Act or (b) has contravened a provision of the Act in circumstances that make it likely that the contravention will continue or be repeated, to issue a direction to the person to remedy the contravention or the causes of the contravention or likely contravention; see s. 153(1) and (2). Whilst the direction may be given orally or in writing, if given orally it must be confirmed in writing; see s. 153(3). A written direction (or confirmation) must state pursuant to s. 153(4): “(a) that the inspector believes the person - (i) is contravening a provision of this Act; or (ii) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated; and (b) the provision the inspector believes is being, or has been, contravened; and (c) briefly, how the provision is being contravened; and (d) the action the person must take to remedy the contravention or likely contravention; and (e) the day before which the person is required to remedy the contravention or likely contravention.”. Subsections (1) to (4) of s. 153 are not without their difficulties. Given the nature of the only available defence, it seems to me that the reference to “contravention” should be treated as a reference to facts which would constitute a contravention, save where the defence at s. 46(1) is made out; compare Wesche v G Scotts Transport Pty Ltd (2005) 178 QGIG 150 at 152. It is hardly likely that an Inspector is intended to stand mutely by and mull over whether the person had any control over the commission of the offence. Neither does it seem to me to be maintainable that the reference at s. 153(4)(b) and (c) are intended to be a reference to s. 27 of the Act. Section 27 will always be the provision contravened. Given the obligation to say how the provision is being contravened and what must be done to remedy the contravention, it seems to me that the reference to “contravention” is a reference to the obligation at Part 2, Division 2 to be “contravened”. The present tense at s. 153(1)(a) and the reference to likelihood of continuance or of repetition at s. 153(1)(a) suggests, bearing in mind the penal nature of the statute, that a complete and fully constituted contravention which is unlikely to reoccur may not be made the subject of a direction. That construction derives support from s. 153(4)(d) and (5) which imposes an obligation to remedy the contravention or likely contravention, not the consequences of the contravention. A person aggrieved by a direction under s. 153(2) has a right of appeal to this Court; see s. 172(1) and the definition of “original decision” at s. 167. There is no record. The appeal must inevitably be by way of a hearing de novo; notwithstanding that s. 175(2) declares the appeal to be by way of rehearing. The point of difficulty is the approach to be taken when the issue on the appeal is whether the Inspector had power to issue the direction. Any appeal is a creature of statute and the nature of any appeal must be determined by construction of the statute which created it: see Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd 135 CLR 616 at 621 to 622 per Mason J, Re Coldham and Others; Ex parte Brideson (No. 2) (1990) 170 CLR 267 at 273 to 274 per Deane, Gaudron and McHugh JJ; and Coal And Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1353 per Gleeson CJ, Gaudron and Hayne JJ. Here, the starting point is s. 175(2) which provides, inter alia, that the appeal “…is unaffected by the decision of the entity which made the decision appealed against.”. That provision, I take to be a restatement of the traditional rule that on an appeal by way of hearing de novo, the party successful below, enjoys no advantage, and must, if s/he can, win the case a second time; see Sweeney v Fitzharding (1906) 4 CLR 216. Here, of course there is a second reason for denying the Respondent the advantage of a presumption that the decision appealed against was correct. The appeal is not an appeal against a judicial determination; nor indeed an appeal against an administrative body required to act in a quasi- judicial manner, e.g. hearing evidence and submissions and giving reasons. The issue of a direction pursuant to s. 153(2) is a purely administrative act. In hearing the appeal, this Court exercises original jurisdiction; compare Turnbull -- 3 of 7 -- 4 v New South Wales Medical Board (1976) 2 NSWLR 281 at 299 per Glass J.A and there is not scope for a presumption of correctness; compare McCaughey v Stamp Duties Commissioner (1945) 46 SR (NSW) 192 at 207. Doubtless, in determining whichever the power at s. 153(2) had come into existence, the Court must ask itself the question posed for the Inspector by s. 153(1), i.e. the question is whether the Court entertains a reasonable belief that a person has committed a continuing contravention or a contravention likely to continue or be repeated. But to move beyond the proposition that s. 153(2) identifies the standard of proof and casts the onus upon the Respondent, and to assert that s. 153(1) limits the Court to an enquiry about whether the Inspector’s belief was reasonably open to him is to stand the legislative scheme on its head. The Court has not been taken to any extrinsic materials which would support such a course. Given the aim of the purpose of the Act (discussed alone), it is scarcely likely that the legislature intended the Court to set aside directions shown to be entirely appropriate, because the Inspector did not have access to all of the evidence placed before the Court and could not reasonably have come to a conclusion which was (in truth) correct. The interpretation which will best achieve the purpose of an Act is, of course, to be preferred to any other interpretation; see s. 14A(1) Acts Interpretation Act 1954. I move then from the considerations common to both appeals to the singular circumstances of each appeal. Appeal No. C77 of 2004 Appeal No. C77 of 2004, is about a direction issued by Inspector Allan John Dall on 25 October 2004. The direction, which was reduced to writing, concerned electrical installation work at a shed at 67 Lawsons Road, South Gympie. It was directed to Colin Bailey trading as Bailey’s Electrical and Building Services. Four deficiencies in the electrical installation were identified. The written direction asserted that: (a) electric cable had been placed in such a way and place that it is likely that abrasions to the cable insulation could be caused by contact with sharp steel edges, (b) electric cable had been installed without mechanical protection to protect the cable from damage by external sources, (c) electric cables had been installed without being securely fixed to a stable structure, and (d) a particular cable had not been suitably terminated and protected. The provisions said to have been contravened were s. 27 of the Act and s. 67 of the Regulations. For reasons given above, it seems to me that reference should have been made to ss. 36 and 41 of the Act which connect breach of s. 67 of the Regulations with the “creation of offence” section (viz. s. 27). Helpfully the provisions of the AS/NZS 3000:2000 which were said not to have been complied with were nominated in the case of each alleged deficiency. A consequence is that the direction to “ensure the installation complies with the wiring rules AS/NZS 3000:2000” satisfies s. 153(4)(d). The date of compliance was 15 November 2004. The direction was subsequently stayed by consent (s. 174) to protect the appeal. If the appeal fails, the stay must be vacated and a new date of compliance set. Mr Dall gave evidence. Although his evidence-in-chief was by way of swearing to the facts, it was supported by photographs tendered through Mr Dall which amply show the deficiencies at (a), (b) and (d) above. I am satisfied on the balance of probabilities that: (1) the deficiency at (a) above involves non compliance with AS/NZ5 3000/2000, s.1.10.1 (d), (2) the deficiency at (d) involves non-compliance with AS/N25 3000/2000, s. 1.10.1(a); and (3) the deficiency at (d) involves non-compliance with AS/N25 3000:2000, s. 1.7.7. The problem is with the deficiency at (c). I am satisfied that there is a non-compliance with AS/NZS 3000:2000 s. 3.9.3 in that being a wiring system which is not resting on a continuous surface, it is not supported by suitable means and in that, being deemed likely to be disturbed (see s. 3.9.5.2(a)), it is not supported by suitable means. I am, however, far from satisfied that it is more probable than not (in the Briginshaw v Briginshaw (1938) 60 CLR 336 sense) that the installation is at risk of damage caused by its own weight, because the method of support or fixing does not to comply with AS/NZS 3000:2000, s. 3.9.6. The photograph might cause one to wonder about the matter, but in the absence of precise evidence about the fixing of the end of the cable and the weight of the cable, no inference may properly be drawn. Of course, for reasons given, the cable must be secured in any event. Mr Colin Bailey admits that Bailey’s Electrical and Building Services was engaged to install the wiring complained of, and admits that one of his employees carried out the installation. The substantial basis of his appeal is that the installation had been tampered with. Given the magnitude of the task involved in running the cabling between the metal beams and the roof and between metal struts and the sides of the shed, one might wonder why anyone would bother. No name is mentioned. The case put is that after completion of the installation Mr Bailey visited the shed. He does not claim to remember seeing a different installation. Mr Bailey’s evidence is that he would have noticed it and remedied the installation because it was untidy. The inference is said to be that at the time of Mr Bailey’s visit, the installation was in accordance with Mr Bailey’s obligations, and that a person or persons unknown, subsequently altered the -- 4 of 7 -- 5 installation. Given the ample evidence that (save as to the switchboard) there is no physical sign of movement of the installation, it seems to me to be more likely that Mr Bailey simply did not notice the installation. (The employee has since left Mr Bailey’s service and was not available as a witness). The matter of the switchboard warrants special mention. The occupier of the shed (Mr Constantine Parastatidis) was called as a witness by the Respondent to meet the case of tampering. The gentleman was also, of course, Mr Bailey’s customer. Messrs Bailey and Parastatidis are involved in civil litigation about the installation. Mr Parastatidis was always likely to be a difficult witness. Difficulty did arise when Mr Bailey cross-examined Mr Parastatidis on a claim that the switchboard had been moved. If established, the claim would have answered the case that deficiencies (c) and (d) were contraventions. With respect to Mr Parastatidis, I doubt that the gentleman was entirely frank in his evidence. But that does not assist Mr Bailey. The Court is not entitled to speculate nor to choose between guesses where the possibilities are not unlimited. In the absence of any evidence supporting a positive inference that the switchboard had been moved, the inference may not be drawn. For completeness, I add that pointing to what might or might not be saw dust or wood shavings underneath the fuse box in a photograph of the switchboard, is far from sufficient. Same as to minor matters, the appeal must fail. I order that the direction of Alan John Dall issued on 25 October 2004 which is the subject of appeal in No. C77 of 2004 be varied: (a) by adding to the passage “Electrical Safety Act 2002, s. 27” the words “s. 36 and s. 41(2)”; and (b) by substituting 15 April 2005, for 25 November 2004 as the date before which the contraventions must be remedied; But, otherwise confirm the direction. I vacate the order granted in application No. C76 of 2004, staying the aforesaid direction of Allan John Dall. Appeal No. C79 of 2004 Appeal No. C79 of 2004, arises out of the attempted installation of an air-conditioner at the premises of Mr Victor Toonen at 265 Black Mountain Road, Cooroy. The facts, in shortened form, were that Mr Toonen agreed to purchase an air-conditioner from Energex Homesuite, the trading name of Energex Retail Pty Ltd. Energex Retail Pty Ltd arranged for Brendan Summers Air-Conditioning to undertake the work of installation. Brendan Summers Air-Conditioning engaged Colin Bailey (trading as Bailey’s Electrical and Building Services) to undertake the necessary electrical work. When turned on the air-conditioner did not work. The air-conditioner has not worked to the day of hearing. A complaint was made to the manufacturer of the air-conditioner. The manufacturer arranged for a business trading as Laguna Bay Air-Conditioning to inspect the installation. That inspection occurred. As a result of that inspection, Brendan Summers Air-Conditioning was asked to undertake certain remedial work. Brendan Summers Air-Conditioning attempted to contact Mr Colin Bailey but was unable to do so. In the event, Brendan Summers Air-Conditioning engaged another electrician, Messrs Barry Alexander Mills, who attended upon the site and made certain alterations to bring the installation into accordance with the manufacturer’s specifications. Those alterations did not cause the air-conditioner to work. Mr Mills did not anticipate the alterations would cause the air-conditioner to function. It was Mr Mill’s opinion that the problem was caused by excessive voltage drop. Ultimately, an Inspector under the Electrical Safety Act 2002, viz. Allan John Dall (the Inspector involved in No. C77 2004), was dispatched to the site. As a result of inspections which he conducted and calculations which he performed, Mr Dall issued a written direction under s. 153(2) on 23 June 2004. The written notice nominated s. 27 as the provision of the Act which had been contravened, and nominated s. 36 as creating the relevant obligation. Doubtless in reliance upon the proposition that because the Electrical Safety Regulation 2002 identifies itself “as a provision that prescribes the way of discharging the person’s electrical safety obligation”, s. 41(3) of the Act attached, with the consequence that the obligation s. 36 might be discharged only by complying with the Electrical Safety Regulation 2002. The written notice went on to identify how it was that Mr Bailey had failed to comply with the Regulation. Reference was made to s. 67 of the Electrical Safety Regulation 2002 which provides: “A licensed electrical contractor who employs a licensed electrical worker to perform electrical work on an electrical installation must ensure that the electrical installation, to the extent that is affected by the electrical work, is in accordance with the wiring rules.”. That reference was necessary because Mr Colin Bailey had not carried out the work himself. The work had been carried out by an employee. (The employee had since left Mr Bailey’ service and was unavailable as a witness). The written direction went on to state briefly, how the provision was being contravened and (helpfully) indicated which of -- 5 of 7 -- 6 the provisions of the AS/NZS 3000:2000 were not complied with. Now reproduced, is the brief description and the brief indication of what must be done to remedy the contravention: “(1) Brief description of how the provision is being contravened (2) Action the person must take to remedy the contravention or likely contravention (1) The installer of electrical equipment has failed to ensure the when the electrical equipment has failed to ensure the when the electrical equipment is installed it will be electrically safe. This is evidenced by the electrical contractor failing to ensure the installation at the site location complies with wiring rules. (2) Ensure the installation complies with the wiring rules, in particular – (a) AS/NZS 3000/2000 cl 1.8 Design of an electrical installation. (i) Correct functioning of the electrical installation for the use intended. (b) AS/NZS 3000/2000 cl 1.8.4 Voltage drop.”. The date by which the contravention was to be remedied was nominated as 23 July 2004. There was an internal review. It was an outcome of the internal review that the improvement notice was varied to show a new compliance date of 8 December 2004. The internal review did not lead to any other change. The delay and change of compliance date arose because the gentleman to whom the internal review of Mr Dall’s direction had been delegated, Mr Malcolm Richards, had found inaccuracies of Mr Dall’s calculation of the voltage drop. But there was still a voltage drop. Mr Richards gave evidence. I am satisfied that there was a voltage drop which exceeded the permissible level at s. 1.8.4 of the AS/NZS 3000:2000. There was no suggestion that Mr Richard’s mathematics were incorrect. Neither was there any suggestion that the data which he had used was incorrect. The attack seems rather to have been upon the acquisition of the data. In the course of his evidence on 16 February 2005, Mr Richards explained how he went about calculating the length of the conductor which, of course, is directly related to the loss of voltage. Mr Richards said: “And what you did at the premises? -- I attended the premises with Mr Alan Dall and Mr Neil Caldwell, another senior electrical safety Inspector, with a view to getting as accurate a reading as possible on the length and size of conductors and clarify all the issues on site at that time. And could you tell the Court the significance of getting an accurate interpretation of the length of the – is it the conductors, I’m sorry, that you said? - - Yes, they’re – if I can describe the site, there was a 240 metre Energex server of cable to accurately measure. Then there was the actual switchboard for the premise, back up to the top of the pole and there was a 42 metre span of 2 phase twisted cable across the top of the hill in the middle, then there was 145 metre span of aluminium conductors across the valley which there was a fair bit of vegetation in the bottom of that valley and that arrived at a pole close to Mr Toonen’s premises and then there was a section of underground which was under the house and then a circuit from the switchboard out to the air-conditioner. And what did you use to make the measurements? – There were two ways we measured it. In the first instance, we purchased a role of string from a hardware store. Mr Neil Caldwell, the Inspector, actually walked through the valley, dragging the string. We dragged the string the length of the conductors from pole to pole, then we pulled the string out, laid it in a linea direction on the ground and measured it against the tape measure to get an accurate reading. That was our first method. While we were on site, an Energex official turned up and he had a device which – like a pair of binoculars you could look through and point them at a target and on screen, it would give you an accurate measure of the reading and we – after we’d spent two hours going to this length to get the very accurate reading, we measured it using that device and got exactly the same reading. So, how confident are you of the readings which appear in paragraph 9 of your affidavit? -- I’d be confident to a metre or two of those actual readings.”. Mr Bailey’s submission is that the electrician sent to the site could not be expected to take those steps to measure the conductor and could not be expected to have access to the equipment available to the Inspectors. The submission was that in the circumstances the electrician would assess voltage drop in some other way. The fundamental problem with that submission is, that although the Electrical Safety Act 2002 is not an act of strict liability, it is an act which imposes absolute obligations. The Electrical Safety Regulation 2002, having adopted the AS/NZS 3000:2000, Mr Bailey’s employee (for whom Mr Bailey was responsible) could discharge the obligation at s. 36 of the Act only by complying with AS/NZS 3000:2000. To succeed on the defence mounted by Mr Bailey it would be necessary for Mr Bailey to establish what the employee did and then take the Court to provisions in the AS/NZS 3000:2000 which permitted the task to be performed in that way. -- 6 of 7 -- 7 Mr Bailey did not supervise the employee. The employee was unavailable as a witness. Mr Bailey could not take the first step. Mr Bailey was forced to make bricks without straw. The argument became: (i) no reputable electrician would have left the job in the state in which the evidence showed work had been left; (ii) it follows that the employee did not leave the work in the state shown the evidence; and (iii) it followed that someone else had tampered with the work. (In fairness to Mr Mills I should add that all the evidence is, that the modifications which he made did not contribute to or exacerbate voltage drop). Whilst I have some admiration for the energy and determination which Mr Bailey has shown in defence of the reputation of his business, all of that is speculation. There is no evidence (at all) to suggest tampering. It follows that in so far as the direction under s. 153(2) relates to the matter of voltage drop, it should be confirmed. In the course of argument submissions were made that there had been a breach of s. 150 of the Regulations, in that the employee did not test his work. The evidence of Mr Toonen provides factual basis for the submission. However, it seems to me that although the consequences of such a contravention may have remained, the contravention was not continuing and was not likely to be repeated. In my view any such contravention cannot be used to support the issue of the notice under s. 153 (ii) of the Electrical Safety Act 2002. The written direction places explicit reliance upon s. 1.8 of AS/NZS 3000:2000. In the course of argument it emerged that the provision relied upon was s. 1.8.1(b). That provision, headed “General”, requires that the design of an electrical installation shall take account of the correct functioning of the electrical installation for the use intended. The argument seems to be that: (a) s. 1.8.1(b) was contravened in that the installation did not cause the air conditioner to function; (b) that there was therefore a breach of s. 67 of the Electrical Safety Regulation 2002; and (c) in consequence of the operation of s. 41 of the Electrical Safety Act 2002 a breach of obligation of s. 36 of the Act had occurred. Conceding that the argument was not developed in any detail, I have great difficulty with it. To begin with, s. 1.8.1(b) presents as an introductory rather than a substantive provision. Additionally, it does not appear to me that the aims and purposes of the Electrical Safety Act 2002 at s. 4 and the Regulations making power at s. 210, which must be read as provisions in a penal statute, would support a regulation about functioning simpliciter. A stream cannot rise higher than its source. And if such a regulation may not be made, the Electrical Safety Regulation 2002 may not side-step the difficulty by adopting wiring rules which contain such a provision. In my view that element of the written notice should be set aside. I order that the written direction which is the subject of the proceedings in No. C79 2004 be varied by the deletion of paragraph (2)(a) requiring Mr Bailey to remedy the contravention or likely contravention by ensuring the correct functioning of the electrical installation for the use intended. Because the direction was stayed by consent, it is necessary also for the Court: (a) to vacate the stay ordered in number No. C78 of 2004; and (b) order the variation of the written direction by substituting for the compliance date of 8 December 2004 a compliance date of 4 May 2005. I otherwise confirm the written direction. My Associate will make arrangements for Orders about the return of exhibits in either appeal to be dealt with on the papers. Dated 7 April 2005. D.R. HALL, President. Appearances: Mr C. Bailey and with him Mr R. Bailey for the Appellant Released: 7 April 2005 Ms J. Cameron of the Department of Industrial Relations for the Respondent. Government Printer, Queensland The State of Queensland 2005. -- 7 of 7 --