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The Semi-colon and the interpretation of statutes (OHS)

The power and functions of semicolons (legal impact) ?

 

 

I am constantly scrutinising stipulations within the Act/Regulations, which has led me to compile a list of multiple problematic factors observed within. I am going to make use of this forum to list these concerns raised in my mind (not all of them at once). I generally keep these to myself as “disruptors” or let me rather say tools being used to spark interesting conversations during seminars etc. or for creating doubt (usually in legal scenarios – not going to elaborate on this too much).

 

 

With no specific reason for it being the first topic, I state/raise/question the following:

 

The topic of the ”semicolon” ( ; ) although something being overlooked at times, has an enormous impact on the things we should or should not do.

 

Please note that this is not generally a specific question or answer, nor legal advice, but it is merely a starting point of an ongoing discussion that would ultimately lead to a position where the reader thereof would determine whether or not it is a question, statement or concern for themselves.

 

 

THE SEMICOLON ( ; )

 

We find the semicolon in almost every Section or Regulation, and it being a very small/short punctuation mark when compared to the general big words in the Act, we should not think that it has no meaning. In a lot of cases, the semicolon has so much meaning, that it can ultimately change the outcome of how we interpret a Section or Regulation.

 

 

Oxford def : The mark ( ; ) used to separate the parts of a complicated sentence or items in a detailed list, showing a pause that is longer than a comma but shorter than a period compare colon.

 

 

Findlaw def: Generally, semicolons are used to connect two or more related, but independent, clauses in the same sentence.

 

 

From the above, and many other definitions available, we can hopefully concur that the semicolon means “this point or sentence, AND the phrase/sentence that follows”, I have spent a lot of time with the interpretation of statutes, and know that the purposive approach when interpreting legislation plays an immense role in the outcome, and this helped in most of the cases. Although coming to somewhat of a conclusion as to what the intention of the legislator was, I feel that a Law/Section/Regulation should deserve a bit more respect when drafting them. So it would just be fair to make sure that the punctuation marks used are defined or then when not defined, at least consequently applied for the purposes of transparency and clarity. This is currently not the case.

 

 

I am not going to go into all the areas within the Act/Regulations where I have seen this, but here is an example to shed light on the point/question I am raising:

 

 

OHS Act Section 8 :

 

We see the semicolons, which we all know in terms of Section 8(2) and sub-sections to be exact, means you have to do “this one; and this one; and this one…) no objection to this I believe (in this case the semicolon aligns with the definition out there and it creates the understanding that this is the general purpose and meaning of the semicolon).

 

 

Construction Regulation 3 and 4 :

 

Here we find the semicolon being presented to us as a “and” again, which we can also see from the text and knowledge out there that the 180 days and 1800 person days are connected, read in conjunction with the fact that the project value also has to exceed the value benchmark in order for it to be deemed construction work, but due to the fact that the “or” was included right before sub-Reg (c), it means that the semicolon between (a), (b) and (c) fits the def of “and”, but because “or” was included we know that (c) can stand alone, and should the benchmark value be met, it is still deemed to be categorised under what we know to be “permit work”. Up until this stage I am still very happy with the interpretation of the text and agree with the general approach being followed out there.

 

 

My concern comes in with Reg 4, Notification work, I have observed the approach that DOL and companies out there make findings that the PC failed to comply with Reg 4 and should have sufficient proof of the fact that they have complied with Reg 4, even though they are only going to do, let’s say maybe 2 of the first three stipulations (so they are only doing excavation work and work where there is a risk of a person falling, no demolition being done, nor explosives being used). If we follow the approach being seen within OHS Act Section 8 and CR 3 (and the power being given to the semicolon), we will then ultimately come to the conclusion that the PC does not have to comply with CR4. I agree if he is going to make use of explosives to do construction work, that on its own (because of the “or”) are enough to make Reg 4 applicable, which he should then comply with. This is one of my concerns, and proof of the fact that the semicolon meaning changes when comparing Reg 3 and 4. Many experts that I have spoken to also have come to realise that this has to deserve more attention when drafting legislation. It’s only once a person compares the possible legal liability exposures attached to something like a semicolon that we can grasp the seriousness thereof.

 

 

I am going to make use of an example to illustrate the possible legal liability exposure (focusing on Civil liability) that may arise out of or in connection with the incorrect use of the semicolon.

 

 

So for example a Company/Client/Dol stops a site/PC from continuing their work due to the fact that they are doing excavation work and working from a position where there is a fall risk and have not complied with REG 4 (They stop the site because no proof exists that notification was given). They give notice that they may only continue once this has been done in terms of Reg 4.  They have to stop work for about 7 days and lose a lot of money because thereof. They follow the Promotion of Administrative Justice Act remedies, and thereafter approach the court and state that the finding and stopping of work was unlawful based on their interpretation of Reg 4. I am not going to answer it (just a scenario), however, when reading the Bert's Bricks court-case we see the court agreed that the approach and interpretation of the inspector at that time was wrong and unlawful, thus providing the company with the opportunity of claiming all of the money lost due to the standstill of work. This could similarly be the case when you stop your PC.

 

 

I am going to withhold myself from elaborating an further on this topic, however please be advised that there are allot of similar situations throughout the Act and Regulations and we could hopefully have a presentation or video discussion on this from SAIOSH. Your comment will also be appreciated.

 

 

Kind Regards

 

Kevin.