Cleanaway Operations Pty Ltd v Hanel - [2025] SASCA 112

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
CLEANAWAY OPERATIONS PTY LTD v HANEL
[2025] SASCA 112
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
2 October 2025
INDUSTRIAL LAW - WORK HEALTH AND SAFETY - DUTIES AND LIABILITIES
INDUSTRIAL LAW - WORK HEALTH AND SAFETY - GENERALLY - APPEAL AND REVIEW
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against conviction.

On 18 August 2014, a vacuum truck owned by the appellant, Cleanaway Operations Pty Ltd (Cleanaway), collided with vehicles at the intersection at the bottom of the South Eastern Freeway, where Cross Road, Glen Osmond Road and Portrush Road meet at Myrtle Bank. The collision caused the death of two people and serious injuries to the driver Mr Hicks, an employee of Cleanaway, and another person.
The respondent, an inspector employed by Comcare, commenced a prosecution against Cleanaway, raising eight counts. Each concerned breaches of duties under the Work Health and Safety Act 2011 (Cth) (the WHS Act) which it was said were owed by Cleanaway to its employees or to others.
Following a trial before a magistrate, Cleanaway was convicted on all eight counts.
On appeal to a single judge, six of the eight convictions were set aside.

Cleanaway appealed against the two remaining convictions, being counts 1 and 2. Count 1 concerned breaches of duties owed by Cleanaway to its employees. Count 2 concerned breaches of duties owed by Cleanaway to persons other than its employees.
Cleanaway broadly contended that:
1.The Magistrates Court of South Australia did not have jurisdiction to hear and determine the charges laid against Cleanaway by the respondent because the respondent lacked lawful authority to issue the Complaint commencing the criminal proceeding.
2.The appeal judge erred in upholding the convictions on charges 1 and 2 on a basis not alleged in the charge sheet or opened.
3.The prosecution failed to prove the allegation that Mr Hicks’ competence to drive all vehicles he might be called upon to drive had not been properly determined.
4.The finding of guilt on charges 1 and 2 was based on an alleged reasonably practicable measure that was not alleged in the charges and on a basis that was not, in any event, open on the evidence.
5.The appeal judge erred in failing to apply the test of causation imposed by s 32(c) of the WHS Act.
Held (the Court), granting leave to appeal and dismissing the appeal:
1.Whether one views the case as depending on the combination of the function identified in s 152(h) of the WHS Act supported by the powers conferred by ss 153 and 230(1)(b), and in addition or alternatively on the function in s 230 supported by the power in s 153, in each case read together with the power of delegation in s 154, the respondent was authorised in writing to commence these proceedings. [128]
2.It has not been demonstrated that the appeal judge erred in his approach to the pleaded counts or his appreciation of the course of the trial, including that Cleanaway was not relevantly prejudiced in any material way by the convictions based on the risks posed by traveling in a vacuum truck with manual transmission down the South Eastern Freeway. [180]
3.It was open to the appeal judge to find that Mr Hicks’ competence had not been properly determined. [195]-[199]
4.The measures pleaded against Cleanaway were not taken and, on the evidence, it was reasonably practicable for them to have been taken. [246]-[247]
5.In the circumstances of this case, it has not been shown that the appeal judge erred in fact or law concerning the “exposure element” in s 32(c) of the WHS Act. [307]-[310]

Acts Interpretation Act 1901 (Cth) ss 13, 15AA, 34AA, 34AB, 46; Australian Securities Commission Act 1989 (Cth) s 11; Corporations Law s 597; Crimes Act 1914 (Cth) ss 4H, 13; Criminal Procedure Act 1921 (SA) s 158; Independent Commissioner Against Corruption Act 2012 (SA) s 7; Judiciary Act 1903 (Cth) s 68; Magistrates Court Act 1991 (SA) s 42; Occupational Health and Safety Act 2004 (Vic) (Vic); Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 68, 70, 73B, 74; Supreme Court Act 1935 (SA) s 50; Work Health and Safety Act 2011 (Cth) ss 3, 4, 14, 15, 16, 17, 18, 19, 20, 31, 32, 33, 152, 153, 154, 155, 156, 163, 165, 171, 230; Work Health and Safety Act 2011 (NSW) (NSW); Work Health and Safety Bill 2011 (Cth), referred to.
Bunnings Forest Products Pty Ltd v Shepherd [1998] WASCA 119; Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723; Carmichael v Commonwealth of Australia [2022] VSC 364; Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288; HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212; John Holland Pty Ltd v Wallis [2022] WASC 358; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; Mercantile Mutual Life Insurance Co v Australian Securities Commission (1993) 40 FCR 409; Wallis v John Holland Pty Ltd [2024] WASCA 26; Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428, discussed.
AB (a pseudonym) v Independent Broad-based Anti-corruption Commission (2024) 278 CLR 300; Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; A v Maughan (2016) 50 WAR 263; Baiada Poultry Pty Ltd v Glenister (2015) 257 IR 204; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Bell v The Queen (2020) 286 A Crim R 501; Berry v Federal Commissioner of Taxation (1953) 89 CLR 653; Berwin v Donohoe (1915) 21 CLR 1; Biochem Pharma Inc v Commissioner of Patents (1998) 82 FCR 87; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Brebner v Bruce (1950) 82 CLR 161; Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Cheung v R (2001) 209 CLR 1; Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare) [2022] SASC 52; Commonwealth: Comcare v Cleanaway Operations Pty Ltd (ACN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54; Contract Control Services Pty Ltd v Brown [2012] VSC 369; Director of Public Prosecutions (Cth) v Haddad [2019] NSWCA 55; Director of Public Prosecutions (DPP) v Frewstal Pty Ltd (2015) 47 VR 660; Director of Public Prosecutions v Phillips (2018) VSC 447; Director, Transport Safety v Metro Trains Melbourne Pty Ltd (2019) 58 VR 355; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; DPP Reference No 2 of 2001 [2001] VSCA 114; Edelsten v Health Insurance Commission (1990) 27 FCR 56; Ex parte Smith (1918) 35 WN (NSW) 54; Ex parte Stuart; Re Mead; Ex parte Anderson; Re Mead (1930) 47 WN (NSW) 60; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Gilmour v Midways Springwood Pty Ltd (1980) 33 ALR 605; Hamilton Island Enterprises Pty Ltd v Federal Commissioner of Taxation [1982] 1 NSWLR 113; Hill v Zuda Pty Ltd (2022) 275 CLR 24; Hird v Chief Executive Officer of Australian Sports Anti-Doping Authority (2015) 227 FCR 95; Hongkong Bank of Australia v Australian Securities Commission (1992) 40 FCR 402; Huth v Clarke (1890) 25 QBD 391; John Holland Pty Ltd v Hanel [2016] SASC 192; John Holland Pty Ltd v Industrial Court of NSW [2010] NSWCA 338; Johnson v Miller (1937) 59 CLR 467; Libke v The Queen (2007) 230 CLR 559; Luxton v Vines (1952) 85 CLR 352; Majar v Northern Land Council (1991) 37 FCR 117; Maxwell v The Queen (1996) 184 CLR 501; M v The Queen (1994) 181 CLR 487; New South Wales v Cahill (No 2) (2011) 210 IR 112; Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108; O’Sullivan v Truth and Sportsman Ltd [1955] SASR 85; Parks Holdings Pty Ltd v Chief Executive Officer of Customs (2004) 81 ALD 365; Police (SA) v Mahon (2022) 141 SASR 374; Raymond v Attorney-General [1982] QB 839; Re Day (2017) 91 ALJR 262; Reedy v O’Sullivan [1953] SASR 114; Re Warden Calder; Ex parte Lee (2007) 34 WAR 289; Royall v The Queen (1991) 172 CLR 378; R v Bates [1911] 1 KB 964; R v Parker [1977] VR 22; R v Radic (2001) 122 A Crim R 70; SafeWork NSW v Grasso Consulting [2022] HCATrans 132; Simpson Design Associates Pty Ltd v Industrial Court of New South Wales (2013) 213 A Crim R 340; S Kidman & Co Ltd v Lowndes CM (2016) 314 FLR 358; State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIR Comm 303; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Taylor v Attorney-General (2019) 268 CLR 224; Thiess Pty Limited v Industrial Court of New South Wales (2010) 78 NSWLR 94; Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266; Vairy v Wyong Shire Council (2005) 223 CLR 422; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; Wyong Shire Council v Shirt (1980) 146 CLR 40; X7 v Australian Crime Commission (2013) 248 CLR 92, considered.

CLEANAWAY OPERATIONS PTY LTD v HANEL
[2025] SASCA 112
Court of Appeal – Criminal: Livesey P, Lovell and Bleby JJA
THE COURT:
Introduction

On 18 August 2014, a vacuum truck owned by the appellant, Cleanaway Operations Pty Ltd (Cleanaway), collided with vehicles at the intersection at the bottom of the South Eastern Freeway, where Cross Road, Glen Osmond Road and Portrush Road meet at Myrtle Bank. The collision caused the death of two people and serious injuries to the driver Mr Hicks, an employee of Cleanaway, and another person.
Mr Philip Hanel (the respondent) is an inspector employed by Comcare, a statutory corporation with responsibility, amongst other matters, for securing the health and safety of workers and workplaces, including by securing compliance with the Work Health and Safety Act 2011 (Cth) (the WHS Act) “through effective and appropriate compliance and enforcement measures”.[1]
[1] WHS Act, s 3(1)(e).
The respondent commenced a prosecution against Cleanaway by a Complaint and Summons dated 15 August 2016, raising eight counts. Each concerned breaches of duties under the WHS Act which it was said were owed by Cleanaway to its employees or to others.
Following a trial before a magistrate, Cleanaway was convicted on all eight counts.[2] On appeal to a single judge, six of the eight convictions were set aside.[3]
[2] Commonwealth: Comcare v Cleanaway Operations Pty Ltd (CAN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54 (Magistrate Smart) (the magistrate).
[3] Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare) [2022] SASC 52 (Kourakis CJ) (the appeal judge).
Cleanaway has appealed against the two remaining convictions, being counts 1 and 2. Count 1 concerned breaches of duties owed by Cleanaway to its employees. Count 2 concerned breaches of duties owed by Cleanaway to persons other than its employees.
Although the parties proceeded as if the matter was governed by the terms of s 158 of the Criminal Procedure Act 1921 (SA), the common form criminal appeal provision, the appeal to the appeal judge was properly governed by s 42(2)(b) of the Magistrates Court Act 1991 (SA):
42—Appeals
(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from committal proceedings).
…
(2)The appeal lies—
(ab) in the case of a sentence passed on the conviction of a person of an offence that is, or offences that include, a major indictable offence—to the Court of Appeal with the permission of the Court of Appeal; or
(b) in any other case—to the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the appeal for hearing and determination by the Court of Appeal).
There are recognised differences between these appeal provisions.[4] As it turns out, little turns on these differences in the circumstances of this case.
[4] Police (SA) v Mahon (2022) 141 SASR 374, [81]-[84] (Livesey P, Lovell and Doyle JJA).
There is also an issue about permission to appeal.[5] The appeal is governed by s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA) and permission to pursue a second appeal is required:
[5]     Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108, [36] (Livesey P, Lovell JA and Stanley AJA).
50—Appeals
(1)     Subject to this section—
(a)     an appeal lies to the Court of Appeal against a judgment of the court constituted of a single judge;
…
(4)     An appeal lies only with the permission of the court—
(a)     from a judgment of any of the following classes:
…
(ii)a judgment given by a single judge on appeal from a judgment of the Magistrates Court; …
Whilst the respondent conceded permission to appeal ground 4, permission should be granted for all grounds. For the following reasons, the appeal should be dismissed.
These reasons are set out as follows:
The relevant statutory provisions – duty and breach
The Complaint and Summons
Factual background
Cleanaway’s grounds of appeal
Appeal ground 5 – invalid authorisation
Cleanaway’s contentions on invalid authorisation
The respondent’s contentions on authorisation
The determination of the authorisation issue
Appeal ground 1: the scope of the prosecution case
The determination of appeal ground 1
Appeal ground 2 – proof of Mr Hicks’ competence
The determination of appeal ground 2
Appeal ground 3 – a finding of guilt on a basis not alleged and not open
The determination of appeal ground 3
Appeal ground 4 – the question of causation
The determination of appeal ground 4
Conclusion
The relevant statutory provisions – duty and breach
Before outlining Cleanaway’s grounds of appeal, it is appropriate to address certain of the relevant statutory provisions.
Section 14 of the WHS Act provides that an employer’s duty cannot be transferred to another person. Section 15 declares that a person may owe more than one duty by virtue of being in more than one class of duty holder. Section 16 provides that two or more persons can concurrently owe the same duty. Section 17 of the WHS Act provides:
17      Management of risks
A duty imposed on a person to ensure health and safety requires the person:
(a)     to eliminate risks to health and safety, so far as is reasonably practicable; and
(b)     if it is not reasonably practicable to eliminate risks to health and safety, minimise those risks so far as is reasonably practicable.
Section 18 of the WHS Act reflects what is sometimes described as the “Shirt calculus”, addressing what is reasonably practicable at the time of any alleged breach:[6]
[6]     Wyong Shire Council v Shirt (1980) 146 CLR 40.
18What is reasonably practicable in ensuring health and safety
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a)     the likelihood of the hazard or the risk concerned occurring; and
(b)     the degree of harm that might result from the hazard or the risk; and
(c)     what the person concerned knows, or ought reasonably to know, about:
(i)the hazard or the risk; and
(ii)ways of eliminating or minimising the risk; and
(d)     the availability and suitability of ways to eliminate or minimise the risk; and
(e)     after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Section 19(1) of the WHS Act imposes the duty, described in the heading to that section as the “Primary duty of care”, on a person conducting a business or undertaking. In this case, that person is Cleanaway. Section 19(1) of the WHS Act provides:
19    Primary duty of care
(1)     A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a)      workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
Separately, s 19(2) of the WHS Act concerns the health and safety of others. Section 19(2) provides:
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
It is in the context of ss 19(1) and 19(2) that s 19(3) of the WHS Act addresses what must be provided by a person such as Cleanaway “so far as is reasonably practicable”:
(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—
(a) the provision and maintenance of a work environment without risks to health and safety; and
(b) the provision and maintenance of safe plant and structures; and
(c) the provision and maintenance of safe systems of work; and
(d) the safe use, handling and storage of plant, structures and substances; and
(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
In this case, having regard to the duties set out in s 19, the consequences of breach are addressed by ss 32 and 33 of the WHS Act:
32      Failure to comply with health and safety duty—Category 2
A person commits a Category 2 offence if:
(a)     the person has a health and safety duty;
(b)     the person fails to comply with that duty; and
(c)     the failure exposes an individual to a risk of death or serious injury or illness.
Penalty:
(a)     In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150 000.
(b)     In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300 000.
(c)     In the case of an offence committed by a body corporate—$1 500 000.
33      Failure to comply with health and safety duty—Category 3
A person commits a Category 3 offence if:
(a)     the person has a health and safety duty; and
(b)     the person fails to comply with that duty.
Penalty:
(a)     In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$50 000.
(b)     In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$100 000.
(c)     In the case of an offence committed by a body corporate—$500 000.

The maximum penalty in s 32 is three times the maximum penalty in s 33. One key difference is the presence of s 32(c) and the requirement that the relevant failure has exposed “an individual to a risk of death or serious injury or illness”.
This case does not concern s 31 of the WHS Act, which creates the offence of what is, in effect, a reckless breach of s 32.
The Complaint and Summons
By the Complaint and Summons dated 15 August 2016, issued by the respondent against Cleanaway, charge 1 provided:
Charge 1
On or about 18 August 2014 at Adelaide in the State of South Australia pursuant to section 32, section 19(1) and section 19(3)(c) of the Work Health and Safety Act 2011 (Cth) (“the Act”) Cleanaway Operations Pty Ltd (ACN 010 745 383) (also known as Transpacific Industries Pty. Ltd.) failed to comply with a health and safety duty in that as a person conducting a business or undertaking Transpacific Industries Pty. Ltd. failed to ensure, so far as was reasonably practicable, the health and safety of workers engaged or caused to be engaged by Transpacific Industries Pty. Ltd. while the workers were at work in that business of undertaking.
Particulars
1.The defendant, Cleanaway Operations Pty Ltd (ACN 010 745 383) (also known as Transpacific Industries Pty. Ltd.) (“TPI”), was at all material times a body corporate.
2.TPI was at all material times a non-Commonwealth licensee and as such subject to the jurisdiction of the Act.
3.The acts and omissions of the defendant took place at workplaces including the TPI depot at Wingfield, South Australia, the South Eastern Freeway in Adelaide and various other places.
4.The undertaking of the defendant included the collection and transport of septic waste pursuant to a contract with Adelaide Hills Council.
5.There was a hazard in the workplace, namely the use of large vacuum trucks travelling on public roads generally and the South Eastern Freeway in particular.
6.The defendant had a health and safety duty pursuant to s. 19(1)(a) and s. 19(3)(c) of the Act to provide and maintain a safe system of work to ensure, so far as was reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the defendant.
7.The defendant failed to comply with that duty in that it exposed a worker, namely Darren Hicks, to risk of death or serious injury.
8.The health and safety risk to which Darren Hicks was exposed was serious injury or death as a result of:
· Collision between vacuum trucks and other road users.
9.There were reasonably practicable measures available to the defendant to control the risks arising from the defendant’s undertaking. The defendant: Failed to maintain a system of work whereby Darren Hicks was prevented from driving vacuum trucks without supervision until his competence to drive all vehicles he may be required to drive in the course of his work was properly determined by the defendant, including the assessment by the defendant of Darren Hicks’ competence in the task of driving a truck with a manual gearbox.
Charge 2 was in identical terms, as were the particulars, save that the relevant failure by Cleanaway was pleaded in the chapeau as one which was concerned with a duty owed to “other persons” as follows:
… failed to comply with a health and safety duty in that as a person conducting a business or undertaking [Cleanaway] failed to ensure, so far as was reasonably practicable, the health and safety of other persons was not put at risk from work carried out as part of the conduct of the business or undertaking.
The six other charges were in similar terms and need not be addressed. As mentioned, the convictions on those were set aside by the appeal judge.
Factual background
The evidence was that Mr Hicks had been recruited by Cleanaway on 11 August 2014 to work as a vacuum truck operator in the liquid division at Wingfield.
Mr Hicks had obtained his unrestricted HR class heavy vehicle driver’s licence on 3 July 2014, following the completion of 15 hours of heavy vehicle training with G&L Heavy Vehicle Driving Centre. That training was conducted in a truck which had a manual transmission.[7]
[7] See exhibit P4.
On the first two days Mr Hicks worked for Cleanaway, 12 and 13 August 2014, he drove Truck 349 which was a vacuum truck with an automatic transmission. On both days, an experienced driver sat with Mr Hicks in the passenger seat as part of a “buddy system”, but did not give Mr Hicks any guidance on his driving.[8]
[8] Exhibit P4; Transcript, pp 226-227.
On 14 August 2014, Mr Hicks drove Truck 349 alone. The Fleet Supervisor for Cleanaway was not aware of any policy or procedure for how long a driver was to be part of the buddy system, nor when the decision would be made that a new driver would drive alone.[9]
[9] Transcript, p 264.
Cleanaway employed Mr Gregory Skinner as a Driver Trainer/Driver Assessor.[10] Mr Skinner said in evidence that, usually, the buddy system took place for a period of two to four weeks and, the less experienced the driver, the longer the period of buddy accompaniment.[11] Other Cleanaway drivers had been accompanied by a buddy for a period of between one and four weeks when they commenced employment with Cleanaway.[12]
[10] Exhibit P4, paragraph 41 and the appeal judge, [91].
[11] Transcript, pp 325-326.
[12] Transcript, pp 98-99, 220.
On 14 August 2014, Mr Hicks undertook a Heavy Vehicle General Driving Assessment with Mr Skinner. The assessment was undertaken using the same truck, Truck 349, which had an automatic transmission.[13] Mr Skinner had no control over the truck the drivers were assessed in, nor was he aware of any procedure for choosing the vehicle used in the driver assessment.[14]
[13] Exhibit P4, [40]-[41], document 45, pp 1, 8; Transcript p 331 and onwards, p 422.
[14] Transcript, pp 310, 337.
The assessment was undertaken by reference to a form different to that which applied for a new driver.[15] Mr Skinner wrote on the form that Mr Hicks was competent in “all tasks” although he had not assessed him in a number of the tasks set out on the form including “Gear lever in gear”, “Gear changing clutch operation” and “uses low gear”.[16]
[15] Exhibit P4, document 34. Exhibit P9. See Transcript, pp 329, 331, 333-334, 342.
[16] Exhibit P4, document 34. Transcript, pp 333-338, 342-343.
On 18 August 2014, Mr Hicks and a colleague, Mr Melbourne, were allocated the “Adelaide Hills run”.[17] Mr Melbourne was not required to mentor or buddy Mr Hicks. They drove separate trucks.[18]
[17] Transcript, pp 101, 103.
[18] Transcript, p 103.
Mr Hicks was allocated Truck 105, a vacuum truck with a manual transmission.[19] Cleanaway had not assessed Mr Hicks in a vehicle with a manual transmission before he was allocated Truck 105, and the dispatcher responsible for allocating trucks and drivers to particular runs was not subject to any requirement to consider the driver’s level of training or experience when allocating a truck or run.[20]
[19] Exhibit P4, [43]; Transcript, pp 102, 104, 311.
[20] Transcript, pp 308, 210.
On 18 August, Mr Hicks’ seventh day driving a heavy vehicle on a road, and fifth day working at Cleanaway,[21] Mr Hicks and Mr Melbourne drove to Woodside in their respective trucks via the South Eastern Freeway.[22] It was the first time Mr Hicks had driven a heavy vehicle on the South Eastern Freeway.[23]
[21] Exhibit P4, [23], [36] and [43].
[22] Transcript, p 106.
[23] Transcript, pp 415, 425-427, 449.
During the ascent, Mr Hicks drove Truck 105 in first or second gear.[24] This was the second full day Mr Hicks had driven a heavy vehicle without direct supervision.[25] It was Mr Hicks’ first day driving a truck with a manual synchromesh gearbox.[26]
[24] Transcript, p 430.
[25] Transcript, p 413.
[26] Transcript, pp 414, 423, 425-427.
Once the trucks driven by Mr Hicks and Mr Melbourne were at capacity, Mr Melbourne proceeded to Heathfield via the South Eastern Freeway. After he arrived at Heathfield, the gates were closed and Mr Melbourne called Mr Hicks and told him to turn around and proceed to Bolivar via Portrush Road.[27]
[27] Transcript, p 106.
At the start of the descent on the South Eastern Freeway, Mr Hicks had the seven gear vacuum truck in fifth gear. He was travelling at between 60 and 70 kph. The truck increased in speed to no more than 80 kph. The exhaust brake was on.
Mr Hicks used the foot brakes to slow the truck down but was unable to slow it sufficiently to change the truck into a lower gear. His use of the foot brake was ineffective to slow the vehicle, and it continued to gain speed. The truck became uncontrollable, and the collision followed.[28]
[28] Transcript, pp 430-435, 450-451.
As a result of the collision, two drivers of vehicles were killed and a third was seriously injured. Mr Hicks suffered serious injuries, and his right leg was amputated above the knee.
Following the collision, Cleanaway drafted guides and procedures addressing the risks associated with using trucks with manual gearboxes down steep descents. These included:
1.“Transpacific Toolbox Talk – New Heavy Vehicle Laws on the South Eastern Freeway”, which instructed employees that the signs on the South Eastern Freeway about the use of low gear meant that “a gear that is low enough to limit the speed of the truck or bus without the need to use the primary brake” and about the proper use of arrester beds and that the “use of the right gear avoids the need to use an arrester bed”.[29]
2.The draft document “Quick Reference Guide TTS Wingfield Liquid Fleet Manual” provided that “[n]ew fleet drivers must not drive heavy vehicles unsupervised until they have been assessed as competent … which must include South Eastern Freeway driving”.[30]
[29] Exhibit P4, document 35.
[30] Exhibit P8, p 3; Transcript, pp 296-297.
Cleanaway’s grounds of appeal
Cleanaway’s grounds of appeal are as follows:
Ground 1: Failure to hold the prosecution to its case as pleaded and opened 1.
1.The learned Chief Justice erred in upholding the convictions on charges 1 and 2 on a basis not alleged in the charge sheet or opened.
2. Having found at [10] that the particulars to the charges alleged that the Appellant was required to properly determine Hicks’ competence to drive all vehicles he may be called upon to drive, including a manual vehicle, and having held at [42] that the Prosecution had not proved the allegations as particularised in the charges, the learned Chief Justice erred in failing to uphold the appeal and dismiss charges 1 and 2. (Judgment at [10], [42].)
Ground 2: Failure of the prosecution to prove the allegation that Hicks’ competence to drive all vehicles he might be called upon to drive had not been properly determined.
2. The learned Chief Justice erred in failing to hold that that the Prosecution was required to prove in respect of both charges 1 and 2, pursuant to its allegations at particular [9] of both charges, and did not prove, that Hicks’ competence to drive all vehicles that he might be called upon to drive, including manual vehicles, had not been properly determined where the uncontested evidence was that such competence had been determined and certified by authorised assessors under the statutory scheme for determining such competence in the State of South Australia. (Judgment [16], [124])
Ground 3: Finding of guilt on charges 1 and 2 based on an alleged reasonably practicable measure that was not alleged in the charges and on a basis that was not, in any event, open on the evidence.
3.1 The learned Chief Justice erred in finding that the Appellant was, to satisfy its duty, required to discreetly assess Hicks’ competence in gear selection for a descent on the South Eastern Freeway, when such an allegation was not made in the charge sheet for either charge 1 or 2.   Further or alternatively, it was not open on the evidence to find that it was a reasonably practicable measure that would have minimised the risk. (Judgment at [16])
3.2 The learned Chief Justice erred in finding that the Appellant was guilty of charges 1 and 2 because it had failed to discreetly assess Hicks’ competence in gear selection on descent of the South Eastern Freeway when such act or omission was not specified as a reasonably practicable measure the subject of charges 1 and 2. (Judgment at [16])
3.3 The learned Chief Justice erred in holding that an onus rested on the Appellant to prove that it was not reasonably practicable to assess Hicks’ competence in gear selection on descent of the South Eastern Freeway. (Judgment at [14], [16] and [123])
3.4The learned Chief Justice’s finding that the truck’s brake failure was exacerbated by Hicks’ failure to use gears effectively was against the evidence and not open to find, beyond reasonable doubt. (Judgment at [54])
3.5The learned Chief Justice’s finding that Hicks had attempted to change down from 5th gear when it was too late was against the evidence and not open to find beyond reasonable doubt. (Judgment at [96])
3.6 Having been conceded by the prosecution and on the basis of the evidence, it was not open to the learned Chief Justice to find other than that Hicks was a competent driver who had driven competently down the South Eastern Freeway on 18 August 2014.
Ground 4:Causation
4.1 The learned Chief Justice erred in failing to apply the test of causation imposed by s32(c) of the Work Health and Safety Act 2011, as most recently explained by the New South Wales Court of Criminal Appeal in the decision of Grasso. (Judgment [56]-[65])
4.2The learned Chief Justice erred in finding that the New South Wales provision the subject of the decision in Grasso must be different to s32(c) of the Work Health and Safety Act 2011, when the provisions are identical and part of a National harmonised scheme, and his Honour was bound to follow and apply Grasso unless finding that it was clearly wrong. (Judgment [61])
4.3 Applying the correct test of the element of causation, as explained in Grasso, it was not open on the evidence to find the s32(c) element proved, beyond reasonable doubt.
Reasons at [64], [67])
Ground 5: Authorisation
5.1 The Magistrates Court of South Australia did not have jurisdiction to hear and determine the charges laid against the Appellant by the Respondent because the Respondent lacked lawful authority to issue the Complaint commencing the criminal proceeding AMC-16-11227.
Whilst appeal ground 5 concerned a point not taken before the magistrate or the appeal judge, it was common ground that it was open to be taken before this Court. It is convenient to commence with that ground.
Appeal ground 5 – invalid authorisation
There was no dispute between the parties that the charges comprised “summary offences” within s 4H of the Crimes Act 1914 (Cth) (Crimes Act), nor that the Magistrates Court had jurisdiction over these Commonwealth offences by the conferral of federal jurisdiction under s 68(2) of the Judiciary Act 1903 (Cth).
Page six of the Complaint and Summons nominated the Commonwealth Director of Public Prosecutions (the CDPP) as the prosecutor, and there was no dispute between the parties that the CDPP could prosecute this case.
Whilst there was no dispute that the respondent was appointed an inspector under s 156 of the WHS Act, Cleanaway contended that he was not properly authorised in writing to commence this proceeding and, without that authority, the Complaint and Summons signed by him on 15 August 2006 was, and remains, invalid.
Cleanaway contended that because a valid Complaint and Summons was an essential pre‑condition to the Magistrates Court of South Australia having and exercising jurisdiction to hear and determine the charges against Cleanaway, there was no jurisdiction to hear the matter, enter convictions or impose any penalty.
Because the proceedings were beyond the jurisdiction of the Magistrates Court, they comprised a nullity with the result that the proceedings and purported convictions must be set aside.
There was no dispute between the parties that s 13 of the Crimes Act empowered any person to institute a prosecution for an offence against a Commonwealth Act unless the contrary intention appeared in the Act or Regulation creating the offence.[31] Section 13 provided:
[31] See, generally, Brebner v Bruce (1950) 82 CLR 161; Taylor v Attorney-General (2019) 268 CLR 224, [18]-[36] (Kiefel CJ, Bell, Gageler and Keane JJ).
13 Institution of proceedings in respect of offences
Unless the contrary intention appears in the Act or regulation creating the offence, any person may:
...
(b) institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction.
There was no dispute between the parties that s 230 of the WHS Act, at the least, evinced a contrary intention, so as to restrict the class of people at liberty to bring proceedings for an offence against the WHS Act. Section 230 relevantly provided:
230    Prosecutions
(1)     Subject to subsection (4), proceedings for an offence against this Act may only be brought by:
(a)      the regulator; or
(b) an inspector with the written authorisation of the regulator (either generally or in a particular case).
(2)     An authorisation under subsection (1)(b) is sufficient authority to continue proceedings in any case where a court amends the charge, warrant or summons.
...
(4)     Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an offence against this Act.
The Explanatory Memorandum concerning the Work Health and Safety Bill 2011 (Cth) relevantly provided:[32]
[32] Explanatory Memorandum to the Work Health and Safety Bill 2011 (Cth), pp 81-82.
Clause 230 Prosecutions
769. Subclause 230(1) provides that proceedings for an offence against the Bill can only be brought by the regulator or an inspector authorised in writing (generally or in a particular case) by the regulator.
It can be seen that the effect of s 230 of the WHS Act was to permit the following people to exercise the power to bring proceedings for an offence against the WHS Act:
1.the regulator (s 230(1)(a));
2.an inspector with the written authorisation of the regulator (s 230(1)(b)); and
3.the CDPP (s 230(4)).
Under the WHS Act, the regulator is “Comcare”,[33] a statutory corporation established under s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). By s 74(1A) of the SRC Act, Comcare is constituted by a Chief Executive Officer appointed by the Governor-General.[34]
[33] WHS Act, s 4.
[34] Comcare is also a body corporate with perpetual succession, SRC Act, s 74(1)(a).
By reason of s 13 of the Crimes Act (and s 230), ss 152(h) and 153 of the WHS Act, Comcare had relevant functions and power concerning proceedings for an offence against the WHS Act. By s 154(1)(b) of the WHS Act it was also authorised to delegate in writing functions and powers to an inspector. Relevantly, ss 152(h), 153 and 154 of the WHS Act provided:
152 Functions of regulator
The regulator has the following functions:
…
(h)     to conduct and defend proceedings under this Act before a court or tribunal;
…
153Powers of regulator
(1)     Subject to this Act, the regulator has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(2)     Without limiting subsection (1), the regulator has all the powers and functions that an inspector has under this Act.
154Delegation by regulator
(1)     The regulator may, by instrument in writing, delegate a power or function under this Act other than this power of delegation to:
(a)a member of the staff of the regulator who is an SES employee or an acting SES employee; or
(b)an inspector; or
(c)a member of the staff of the regulator prescribed by regulations.
(2)     A delegation under this section may be made subject to such conditions as the regulator thinks fit.
Note:For further provisions relating to delegations and the revocation of delegations, see the Acts Interpretation Act 1901.

In circumstances where the respondent was an inspector under the WHS Act, the question is whether he had written authorisation to bring proceedings for an offence against the WHS Act.
This part of the case featured conflicting approaches to what is a function as distinct from a power, as well as the source of any relevant function or power. Key to the case was the Instrument of Delegation dated 19 November 2015, addressed below.
On 22 July 2014, Ms Jennifer Taylor was appointed the Chief Executive Officer of Comcare for a term of five years commencing on 24 August 2014.[35]
[35] AB, p 283.
By a Comcare “Instrument of Appointment – Inspector” dated 15 August 2014, issued under the WHS Act, the respondent was appointed an inspector pursuant to s 156 of the WHS Act.[36]
[36] AB, p 351.
The appointment of Mr Justin Napier as the “General Manager Regulatory Operations at Comcare” was approved by letters and notices of appointment and assignment dated 14 May 2015,[37] and 15 May 2015,[38] and these were accepted by Mr Napier on 21 May 2015.[39]
[37] AB, p 352.
[38] AB, p 353.
[39] AB, p 354.
By an Instrument of Delegation dated 19 November 2015, Ms Taylor purported to make a number of delegations pursuant to s 154 of the WHS Act. These were made in the following terms:[40]
DELEGATE to each person, meeting the criteria specified in sub-section 154(1) of the WHS Act,[41] from time to time occupying or performing the duties of a position in Comcare specified in Part 1 of each schedule to this Instrument to perform the functions or exercise the powers of the WHS Act and Work Health and Safety Regulations 2011 (Cth) (WHS Regulations) which have been specified in Part 2 of that Schedule.
[40] AB, p 285.
[41] Subsection 154(1) of the WHS Act states: The regulator may, by instrument in writing, delegate a power or function under this Act other than this power of delegation to:
(a) a member of the staff of the regulator who is an SES employee or acting SES employee; or
(b) an inspector; or
(c) a member of the staff of the regulator prescribed by the regulations.
The instrument also provided that, in accordance with s 46 of the Acts Interpretation Act 1901 (Cth), that Act applied to the instrument and to the provisions of the instrument “as if they were an Act and the provisions of an Act”.[42] One of the schedules to that instrument concerned the General Manager of the Regulatory Operations Group of Comcare. That schedule addressed “the powers and functions” under various sections of the WHS Act, including under s 230, “Prosecutions”. A similar instrument dated 24 October 2017 made a similar delegation concerning similar powers and functions.[43]
[42] AB, p 285.
[43] AB 301.
As foreshadowed, it is the effect of this Instrument of Delegation in the context of the WHS Act provisions already mentioned which is in issue.
On 10 August 2016, Mr Napier purported to authorise the respondent to bring proceedings against Cleanaway for offences against the WHS Act, which occurred on 18 August 2014 in relation to a Cleanaway vacuum truck colliding with three cars at the intersection of the South Eastern Freeway, Portrush Road and Cross Road, Adelaide, South Australia. Reference was made in this instrument to s 32 of the WHS Act and the authorisation was purportedly given under s 230(1)(b) of the WHS Act.[44]
[44] AB, p 317.
Cleanaway targeted the instrument dated 19 November 2015, and the purported delegation to the General Manager of the Regulatory Operations Group of Comcare of the powers conferred on Comcare under the specified sections of the WHS Act which, as has been seen, relevantly only included s 230.
In support of its primary case on invalid authorisation, Cleanaway relied upon the decision of Archer J in John Holland Pty Ltd v Wallis, where her Honour held that a delegation in similar terms to this case was not effective to authorise a prosecution.[45]
[45] John Holland Pty Ltd v Wallis [2022] WASC 358.
As will be seen, after judgment was reserved, the Court of Appeal of Western Australia overruled the decision of Archer J and, in further submissions, Cleanaway invited this Court to disagree with and depart from that decision, whereas the respondent invited this Court to follow it.[46]
[46] Wallis v John Holland Pty Ltd [2024] WASCA 26 (Wallis v John Holland).
Cleanaway’s contentions on invalid authorisation
On the case of Cleanaway, s 230(1) of the WHS Act did not confer any power on anyone. It merely limited and restricted the class of persons who, but for the contrary intention it evinced, would otherwise be both empowered and authorised to bring proceedings for an offence against the WHS Act.
Cleanaway drew a distinction between having the power to bring proceedings and being authorised to do so. It submitted that no inspector required the power to bring proceedings for an offence against the WHS Act. However, no inspector could exercise that power without first obtaining the written authorisation of the Chief Executive Officer of Comcare to bring proceedings.
Cleanaway contended that Comcare’s functions were described in s 152 and its plenary power was conferred by s 153 of the WHS Act. Other provisions of the WHS Act conferred other, discrete powers on Comcare. In some instances, these included the conferral of discrete powers on inspectors. For example:
1.Comcare was conferred powers to obtain information by s 155 of the WHS Act;
2.Comcare was conferred powers to appoint inspectors by s 156 of the WHS Act; and
3.Comcare and its inspectors were conferred powers of entry, as well as various powers following entry, by ss 163, 165 and 171 of the WHS Act.
In this context, Cleanaway contended that Comcare’s power to give an inspector written authority to bring proceedings for an offence against the WHS Act was derived from its plenary power conferred by s 153(1) of the WHS Act.[47]
[47] And not by s 230 of the WHS Act.
Whilst Cleanaway allowed for the possibility that there was a further plenary power conferred by s 70 of the SRC Act, s 73B of the SRC Act provided that the functions and powers of Comcare under the WHS Act may not be delegated. By contrast, the Note 2 to s 73B of the SRC Act provided that “the delegation of Comcare’s functions and powers under the [WHS Act] is dealt with in s 154 of that Act”.
Apart from drawing a distinction over the source of Comcare’s plenary power, Cleanaway addressed the writing by which the respondent was said to have been authorised to bring proceedings for offences under the WHS Act. As will be seen, particular emphasis was given to the fact the relevant instrument referred only to s 230 and not to ss 152 or 153 of the WHS Act.
Cleanaway contended that none of the specified sections in the instrument dated 19 November 2015 conferred any power to give a written authorisation to bring proceedings. Accordingly, said Cleanaway, the instrument was not effective to confer any power on Mr Napier to give the respondent written authorisation to bring proceedings against Cleanaway concerning an offence against the WHS Act.
In those circumstances, because the Chief Executive had not given written authorisation to Mr Napier, and because the Chief Executive’s instrument did not confer any power to give written authorisation to the respondent to bring proceedings, there was no valid written authorisation given to the respondent at any time to bring proceeding against Cleanaway.
As for Comcare’s power of delegation under s 154(1) of the WHS Act, Cleanaway relied upon the following observations of Goldberg J in Parks Holdings Pty Ltd v Chief Executive Officer of Customs:[48]
A provision which requires an act to be in writing must be considered by reference to the context in which it appears. The notion that something be done in writing is designed to provide a measure of formality and official identification. In the present context the reason for the delegation to be in writing is no doubt to ensure that any official act carried out pursuant to the instrument of delegation which affects the rights of persons, or impinges upon commercial or personal activities, is seen to be within power and authorised. One can readily appreciate the issues of proof of authority which would arise in the context where the power to delegate acts which impinged upon the rights of individuals was given with no permanent recorded proof of such delegation. As Miles CJ noted in Perpetual Trustee Co (Canberra) Ltd v Lewis (as Delegate for the Commissioner for ACT Revenue) (1994) 119 FLR 38 at 45; 123 ACTR 17 at 24:
The power to issue notices like those issues pursuant to section 18(2) of the Taxation (Administration) Act is a power “whose exercise will be likely adversely to affect rights of the individuals”: O’Reilly v Commissioners of State Bank of Victoria (1982) 153 CLR 1 at 12 per Gibbs CJ. Therefore an instrument which delegates such a power or part of it should not be construed loosely”.
[48] Parks Holdings Pty Ltd v Chief Executive Officer of Customs (2004) 81 ALD 365, [99] (Goldberg J).
Cleanaway also relied on what it contended was a long line of cases where criminal convictions had been quashed due to the absence of the requisite authority or approval to bring proceedings.[49]
[49] R v Bates [1911] 1 KB 964, 965 (Lord Alverstone CJ, Lawrance and Pickford JJ); Berwin v Donohoe (1915) 21 CLR 1, 25 (Isaacs J, with whom Powers J agreed),27 (Higgins J, with whom Powers J agreed); Ex parte Smith (1918) 35 WN (NSW) 54 (Ferguson J); Ex parte Stuart; Re Mead; Ex parte Anderson; Re Mead (1930) 47 WN (NSW) 60, 61 (Halse Rogers J); O’Sullivan v Truth and Sportsman Ltd [1955] SASR 85, 87 (Ross J); R v Parker [1977] VR 22, 29 (Young CJ). Recently, this statement was referred to and applied in Director of Public Prosecutions v Phillips (2018) VSC 447, 639 [13]-[16] (Ginnane J); Gilmour v Midways Springwood Pty Ltd (1980) 33 ALR 605, 607 (Brennan J); A v Maughan (2016) 50 WAR 263, [152] (McLure P, with whom Corboy J agreed); Director, Transport Safety v Metro Trains Melbourne Pty Ltd (2019) 58 VR 355, [3]-[53] (Garde J); Director of Public Prosecutions (Cth) v Haddad [2019] NSWCA 55, [12]-[13] (Bell P, White and Brereton JJA).
Alternatively, Cleanaway contended that the terms of the instrument dated 19 November 2015 were wholly ineffective to confer on Mr Napier, or anyone else occupying the position of General Manager of the Regulatory Operations Group of Comcare, the power to authorise the respondent to commence proceedings against it for any contravention of the WHS Act.
Following the decision of the Court of Appeal of Western Australia in Wallis v John Holland,[50] Cleanaway made further written submissions. Cleanaway commenced with the propositions that the Court of Appeal decided only that the relevant statutory power to authorise a prosecution under the WHS Act is found in s 153(1) and not s 230 of the WHS Act and, in addition, the decision did not otherwise engage the rule obliging this Court to follow the decision of another intermediate appellate court. In particular, insofar as the Court of Appeal drew any conclusion about the effect of the particular instrument in this case, this Court was not obliged to follow that ruling.
[50] Wallis v John Holland [2024] WASCA 26.
Whilst Cleanaway acknowledged that Wallis v John Holland involved a decision of an intermediate appellate court on a similar question arising in relation to the same Commonwealth legislation, on similar but not identical instruments of purported delegation and authorisation, it was necessary to observe the difference between the holding of the decision and its ratio. Only the ratio, insofar as it concerned federal or uniform legislation, bound this Court.[51] Cleanaway relied on the following explanation given by McHugh J in Woolcock Street Investments Pty Ltd v CDG Pty Ltd:[52]
The common law distinguishes between the holding of a case, the rule of the case and its ratio decidendi. The holding of a case is the decision of the court on the precise point in issue — for the plaintiff or the defendant. The rule of the case is the principle for which the case stands — although sometimes judges describe the rule of the case as its holding. The ratio decidendi of the case is the general rule of law that the court propounded as its reason for the decision.
[51] Hill v Zuda Pty Ltd (2022) 275 CLR 24, [26] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ); CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, [49] (Gummow, Heydon and Crennan JJ).
[52] Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, [59] (McHugh J).
Whilst the holding of the Court of Appeal was clear enough, namely that the prosecution was authorised, Cleanaway submitted that the ratio of the decision was not clear. Cleanaway described the reasoning of the three members of the Court as “opaque and contradictory”.
President Buss considered that s 153(1) was not the only available source of power. Buss P construed s 230(1)(b) as having two aspects, comprising both a restriction on standing as well as an empowerment to authorise an inspector to bring proceedings.[53]
[53] Wallis v John Holland [2024] WASCA 26, [51], [64] (Buss P).
By contrast, Vaughan JA held that the general power in s 153(1) was the material source of power and,[54] contrary to the ruling of Buss P, s 230 was not a source of power but merely “a ‘standing’ provision”.[55] His Honour held that it was a “matter of necessary implication” that s 230 contemplated that the regulator may authorise an inspector to bring proceedings.[56]
[54] Wallis v John Holland [2024] WASCA 26, [96] (Vaughan JA).
[55] Wallis v John Holland [2024] WASCA 26, [117] (Vaughan JA).
[56] Wallis v John Holland [2024] WASCA 26, [120] (Vaughan JA).
Justice Vaughan held that the relevant function was not to be found in s 152(h) but emerged by necessary implication from the terms of s 230.[57] Vaughan JA gave particular emphasis and a wide meaning to the use of the word “under” in the relevant instrument, and explained that this best achieved the purpose of the delegation, with the result that the relevant power in s 153 could be said to arise “under” s 230 despite not having been mentioned in the instrument.[58]
[57] Wallis v John Holland [2024] WASCA 26, [121]-[123] (Vaughan JA).
[58] Wallis v John Holland [2024] WASCA 26, [152], [156]-[157] (Vaughan JA).
The third member of the Court, Solomon J, held that the function of authorising inspectors to bring a prosecution was contained in s 230(1) and it was not merely a standing provision.[59] Cleanaway submitted that this appeared to be contrary to the view of Vaughan JA.
[59] Wallis v John Holland [2024] WASCA 26, [237], [249] (Solomon J).
In addition, Solomon J took the view that the relevant plenary power in s 153 was the source of power that attached to the function conferred by s 230.[60] Though his Honour allowed that the construction of the instrument adopted by Archer J was “open and available”,[61] having regard to the object of the instrument, the intertwined nature of the power conferred by s 153, and the function contained in s 230(1), the use of the word “under” in the instrument should be given a wide meaning.[62] Solomon J held that the delegation was capable of conveying an intention to delegate the function and any necessary attaching power to enable the authorisation of inspectors to bring proceedings.[63]
[60] Wallis v John Holland [2024] WASCA 26, [238] (Solomon J).
[61] Wallis v John Holland [2024] WASCA 26, [250] (Solomon J).
[62] Wallis v John Holland [2024] WASCA 26, [253] (Solomon J).
[63] Wallis v John Holland [2024] WASCA 26, [253] (Solomon J).
Cleanaway contended that there were compelling reasons for this Court not to follow the decision in Wallis v John Holland, particularly as, on the question of the ruling about the Commonwealth legislation, the decision was plainly wrong.
In these circumstances, Cleanaway contended that the respondent was not authorised to sign, nor to cause or permit to be filed in the Magistrates Court, any Complaint and Summons commencing any criminal proceeding against Cleanaway for alleged breaches of s 32 of the WHS Act.
The respondent’s contentions on authorisation
The respondent countered that he was authorised to bring proceedings within the meaning of s 230(1)(b) of the WHS Act by reason of the written authorisation given by Mr Napier on 10 August 2016.[64]
[64] AB, p 317.
At the time of his written authorisation, Mr Napier was the General Manager of the Regulatory Operations Group of Comcare,[65] and authorised by the Instrument of Delegation given by the regulator, the Chief Executive Ms Taylor, dated 19 November 2015.[66] According to the respondent, that instrument did not need to name Mr Napier,[67] and could be made generally and by reference to the relevant section of the WHS Act, s 230.[68]
[65] Instrument of Appointment dated 14 May 2015, AB, p 352.
[66] AB, p 285.
[67] Acts Interpretation Act 1901 (Cth), s 34AA.
[68] Acts Interpretation Act 1901 (Cth), s 34AB(1)(a).
The respondent contended that the essential question under this ground of appeal was whether the Instrument of Delegation had to expressly refer to s 153, as well as s 230, of the WHS Act in order to be effective. That is to say, the only link in the chain of authorisation which appeared to be under challenge by Cleanaway was whether the Instrument of Delegation from the Chief Executive to Mr Napier was effective to allow Mr Napier to authorise the respondent to bring the proceedings.
On the case of the respondent, the Instrument of Delegation expressly delegated to Mr Napier the function of bringing proceedings under s 230(1)(b) of the WHS Act and, by its terms, also delegated to him the power to perform that function, being the power to make an effective authorisation to an inspector.
The respondent highlighted that the instrument delegated and authorised Mr Napier “to perform the functions or exercise the powers of the WHS Act … which have been specified in Part 2 of that Schedule”.[69] Under that part, s 230 “Prosecutions” was listed as both a power and function.[70]
[69] AB, p 285.
[70] AB, p 287.
The respondent acknowledged that statutes may draw a distinction between powers and functions.[71] Nonetheless, the expressions define what it is that the body can do.[72] Whilst ss 152 and 153 of the WHS Act refer separately to “functions” and to “powers”, they come under the heading to Division 1 of Part 8, “Functions of Regulator”, and the heading formed part of the statute.[73]
[71] Edelsten v Health Insurance Commission (1990) 27 FCR 56, 62-63 (Northrop and Lockhart JJ); Mercantile Mutual Life Insurance Co v Australian Securities Commission (1993) 40 FCR 409 (Mercantile Mutual), 422 (Lockhart J),
[72] D Pearce, Statutory Interpretation in Australia, (9^th ed), [12.31].
[73] Acts Interpretation Act 1901 (Cth), s 13.
Accordingly, the respondent contended that as s 230(1)(b) of the WHS Act conferred a function on the regulator to authorise inspectors to bring proceedings, the effect was similar to the way in which the Full Court of the Federal Court had evaluated s 597 of the Corporations Law in Mercantile Mutual. That is to say, that s 597 conferred a function, but not the power, on the Australian Securities Commission to authorise a person to make a relevant application.[74]
[74] See Hongkong Bank of Australia v Australian Securities Commission (1992) 40 FCR 402; Mercantile Mutual (1993) 40 FCR 409, 422 (Lockhart J).
In addition, as the relevant function was not separately provided for, the respondent submitted that, in consequence, it remained a function of the regulator as described by s 152(i) of the WHS Act.
This contention was rejected by Archer J in John Holland Pty Ltd v Wallis.[75] The respondent contended that Archer J was wrong to conclude that authorising another, such as an inspector, to institute proceedings fitted within the ordinary meaning of the words in s 152(h) of the WHS Act and could be described as “to conduct” proceedings. On the approach of Archer J, the delegation had to expressly delegate the function under s 152(h) before anyone other than the Chief Executive could authorise an inspector to institute a proceeding for a contravention against the WHS Act.
[75] John Holland Pty Ltd v Wallis [2022] WASC 358, [64] (Archer J).

The respondent took issue with this approach, contending that the regulator could delegate “a power or function” under s 154 of the WHS Act.
The respondent noted that in John Holland Pty Ltd v Wallis, Archer J correctly identified the finding made by the Full Court of the Federal Court in Mercantile Mutual,[76] but disagreed with what followed:[77]
Section 597(2) sets out who may make an Examination Application. Section 597(2) does not expressly confer on the ASC the function of authorising a person to make Examination Applications, nor the power to authorise. Rather, it is simply that it can be discerned from s 597(2) that the ASC was intended to have this function.
[76] John Holland Pty Ltd v Wallis [2022] WASC 358, [112] (Archer J).
[77] John Holland Pty Ltd v Wallis [2022] WASC 358, [113] (Archer J).
The respondent contended that, other than by s 230(1)(b), there was no other express conferral of the function to commence proceedings on the regulator, and this had been accepted by Archer J.[78]
[78] John Holland Pty Ltd v Wallis [2022] WASC 358, [64].
The respondent relied on the terms of the Instrument of Delegation and the references made to the performance of functions, as well as to powers and functions, as indicating that the regulator had delegated any powers necessary for Mr Napier to perform the functions nominated, including that under s 230(1)(b) of the WHS Act. Accordingly, the respondent submitted that the Instrument of Delegation intended to, and gave, Mr Napier power to give a written authorisation to an inspector to bring proceedings under s 230(1)(b) of the WHS Act. This, contended the respondent, was consistent with a fair reading of the Instrument of Delegation.[79]
[79] And not an overly generous construction of it, Mercantile Mutual (1993) 40 FCR 409, 441 (Gummow J).
The respondent also contended that though the wording of the delegations was different, the reasoning of the plurality in Mercantile Mutual assisted the conclusion that the Instrument of Delegation effectively delegated both the function under s 230 and the power necessary under s 153 of the WHS Act, even though only the former was expressly cited in the document.[80] In particular, in Mercantile Mutual, the two instruments of delegation referred to “powers and functions conferred or expressed to be conferred on the [ASC] by or under the following provisions” of the Corporations Law, without making reference to s 11(4) of the ASC Law which the Full Court held was the relevant “power provision”. Even though the instrument only referred to the “function provision” of s 597 of the Corporations Act, this was nonetheless held to effectively delegate the power to perform the function. That was so notwithstanding that the “power provision” was not mentioned and appeared in a different statute.
[80] Mercantile Mutual (1993) 40 FCR 409.
Accordingly, the respondent drew an analogy with the Instrument of Delegation in this case, which referred only to the “function provision” of s 230 of the WHS Act, but not the “power provision” of s 153 of the WHS Act.
Insofar as Archer J rejected this approach in John Holland Pty Ltd v Wallis,[81] the respondent invited this Court to reject it. The respondent acknowledged that the delegation before Archer J in John Holland Pty Ltd v Wallis was in materially the same terms as the Instrument of Delegation before this Court, and that her Honour considered and construed the same provisions of the WHS Act as are raised for consideration by this Court.
[81] John Holland Pty Ltd v Wallis [2022] WASC 358, [120]-[130] (Archer J).
Nonetheless, the respondent contended that what was before this Court was not a pure question of statutory construction but a requirement to construe the effect of the Instrument of Delegation in circumstances where this Court is not bound by the decision of Archer J and may reach its own view. In particular, the respondent contended that those decisions which required that interstate courts follow intermediate appellate decisions on Commonwealth legislation, or the Australian common law, had no application.[82]
[82] Cf, Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Hill v Zuda Pty Ltd (2022) 275 CLR 24, [25]-[26] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ). Obviously, there is no need for this Court to follow the approach which requires single judges to follow other single judges of co-ordinate authority when interpreting Commonwealth legislation unless the second court takes the view that the first court was clearly wrong, cf Hamilton Island Enterprises Pty Ltd v Federal Commissioner of Taxation [1982] 1 NSWLR 113, 119 (Rogers J).
By contrast, in his further written submissions on the effect of the decision of the Court of Appeal in Wallis v John Holland, the respondent contended that this Court should not depart from a decision of another intermediate appellate court on the interpretation of Commonwealth legislation, uniform national legislation or the common law of Australia unless convinced that the interpretation is plainly wrong or there is a compelling reason not to do so. Whilst intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, they would ordinarily be expected to give them great weight.[83]
[83] Hill v ZudaPty Ltd (2022) 275 CLR 24, [25]-[26] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ). See also Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [134]-[135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
Though the respondent acknowledged that there were differences in reasoning between the Court of Appeal judgments in Wallis v John Holland, all three judges rejected the same argument advanced by Cleanaway. No member of the Court of Appeal considered that s 230 of the WHS Act conferred neither a function nor a power. Rejecting the approach of Cleanaway, the respondent contended that the conclusion that the delegation was effective was reached by the Court of Appeal applying orthodox principles of statutory construction, including those in s 15AA of the Acts Interpretation Act 1901 (Cth), which applied to the Instrument of Delegation by force of s 46 of that Act.
The determination of the authorisation issue
This Court must consider the statutory text having regard to the evident context and purpose of the provisions under consideration. The determination of meaning cannot be considered without regard to the context, including the general purpose and policy of the relevant provisions.[84] When considering the purpose of legislation, this must be derived from the statutory text rather than from any assumption made about the desired operation of the relevant provisions.[85]
[84] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [14] (Kiefel CJ, Nettle and Gordon JJ); AB (a pseudonym) v Independent Broad-based Anti-corruption Commission (2024) 278 CLR 300, [21] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ).
[85] Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, [26] (French CJ and Hayne J).
The WHS Act and a long line of authorities recognise a distinction between the functions of a statutory body and its powers. Typically, the purposes or activities of the body are described as its functions, whereas it is separately conferred the powers to perform those functions.[86]
[86] Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1, 4-8 (Bowen CJ); Majar v Northern Land Council (1991) 37 FCR 117, 136 (Olney J).
In Mercantile Mutual, the Full Court of the Federal Court addressed a challenge to examination orders made under s 597 of the Corporations Law, and held that there had been an effective delegation, relying on the general plenary power in s 11(4) of the Australian Securities Commission Act 1989 (Cth). [87] In so doing, the Court followed earlier Full Court decisions. The Court held that if the phrase in the authorisations was to be construed as indicating (erroneously) that the only relevant head of power was s 597(1), then nevertheless the authorisations were supported under the statutory power conferred by s 11(4). Section 597(1) identified the relevant function to which the conferral of power in s 11(4) applied.
[87] Mercantile Mutual (1993) 40 FCR 409.
Black CJ observed that the relevant instrument mistakenly viewed s 597 as the relevant source of power, but that this was not fatal:[88]
… As Lockhart J points out, it is clear from the material before the court that the second respondent assumed that the source of his power to authorise the third respondents to apply to the court under s 597 was that section itself.
I consider that the instrument of authorisation reflects the ASC’s mistaken assumption, but this conclusion is not fatal to the valid exercise of the power that the ASC had by reason of the combination of s 11(4) of the ASC Act and s 597 of the Corporations Law: see Brown v West (1990) 169 CLR 195 at 203. This case is quite different from Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1.
There must of course be limits to the general principle that an act purporting to be done under one statutory power may be supported under another statutory power. …
[88] Mercantile Mutual (1993) 40 FCR 409, 412 (Black CJ).
Lockhart J considered the issue from the perspective of the Australian Securities Commission (ASC) and who may be authorised by the ASC to make application to a court under s 597 of the Corporations Law to seek an examination order:[89]
The ASC Act draws a distinction between the functions and powers of the ASC, a distinction well recognised in the law with respect to the functions and powers of administrative bodies. The distinction is between functions or purposes or activities of an administrative body on the one hand, and the powers conferred upon it to perform or execute those functions, purposes and activities on the other. As Northrop J and I observed in Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 63:
“The types of statutory contexts in which the expressions ‘functions’ and ‘powers’ of such bodies appear to differ considerably. Sometimes the two expressions are treated interchangeably or with blurred dividing lines; whilst some statutory definitions of ‘functions’ provide that ‘functions include powers and duties’: see the definition of function in Stroud’s Judicial Dictionary of Words’ and Phrases (5^th ed, 1986) and Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117 at 130; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 677-678; Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 37 FLR 457.”
See also Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 per Bowen CJ at 4 and 8.
Since the ASC has many diverse functions conferred on it from various statutory sources, obviously there is a need for it to be invested with incidental powers, the logical repository of which is the ASC Act itself. … It is clear from the language of s 597(1), (2) and (3) of the Corporations Law that the Parliament envisaged that the functions, purposes or activities of the ASC would include the authorisation of persons, other than an official manager, liquidator or provisional liquidator of a corporation, to make application to a court under s 597 in relation to that corporation.
…
In my opinion these considerations lead to the conclusion that s 597 itself confers the function upon the ASC of authorising persons to apply to a court for an order under s 597.
[89] Mercantile Mutual (1993) 40 FCR 409, 422 (Lockhart J, with whom Black CJ agreed).
Soon after this decision, the New South Wales Court of Appeal took a different view regarding the same legislation in Burns Philp & Co Ltd v Murphy,[90] albeit agreeing that the authorisation given by the ASC was valid.
[90] Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723.
In his reasons, Mahoney JA took the view that the State law – then relevantly s 597 of the Corporations Law – could not in combination with the plenary power provision in the Commonwealth Act – s 11(4) of the Australian Securities Commission Act 1989 (Cth) – be relied on to confer power on a Commonwealth authority to effect the relevant delegation:[91]
But the Commonwealth and the various State Corporation Laws are drawn in terms which assume that ASC will do, and be able to do, what the terms of those laws assume it to do. Thus, they assume that it will, within s 597, be able to “authorise” a person to make a s 597 application. It is therefore necessary to see how the legislative scheme operates to confer that power on ASC.
Two things have been suggested: that the power granted to ASC by s 11(4) of the Australian Securities Commission Act (“to do whatever is necessary for or in connection with, and reasonably incidental to, the performance of its functions”); and that the power granted to it by s 11(7) (“the Commission has any functions and powers that are expressed to be conferred on it by a national scheme law of another jurisdiction”), operate in this way.
Judges of the Federal Court, in the cases to which I have referred, have concluded that ASC has power to act under the New South Wales Act to authorise a person to make a s 597 application because such a power is, within s 11(4) of the Australian Securities Commission Act, necessary or incidental to the performance of its functions within that paragraph. With appropriate hesitation, I have come to a different conclusion. What is involved is the doing of something which a State Act purports to empower it to do or assumes it may do. But the “functions” of a Commonwealth authority prima facie cannot be conferred on it, as such, by a State; consequently, the power to grant an authority under s 597 of a State Act prima facie cannot be one of the “functions” of the ASC.
I am of the opinion that the power to grant an authority under s 597 is conferred by s 11(7) of the Australian Securities Commission Act. The Australian Securities Commission Act, as a Commonwealth Act, confers on a Commonwealth authority “functions and powers that are expressed to be conferred on it by” a State Act. Section 597(1), I think, operates to do that.
[91] Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723, 726 (Mahoney JA).
In separate reasons, Clarke and Handley JJA explained the context in which the issue arose:[92]
… Section 597(1) appears to be an interpretation provision which defines “prescribed person” as including “any other person authorised by the Commission”. Mr Bathurst QC submitted that this assumes but does not confer the power to authorise others, which must be found elsewhere.
The principal issue thus became whether s 597(1) conferred or was expressed to confer any power or function on the ASC in relation to the grant of such authorities. If it did there was no dispute that it had been delegated to Mr Braham and validly exercised by him in favour of the new trustees. Mr Bathurst QC submitted that the source of the ASC’s power to grant an authority under s 597(1) was s 11(4) of the Australian Securities Commission Act 1989 (Cth) which provides: “The Commission has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions.”
Section 11(7) further provides: “The Commission has any functions and powers that are expressed to be conferred on it by a national scheme law of another jurisdiction.”
Section 11(7) applies to functions and powers which cannot, for constitutional reasons, be conferred by State law alone on the ASC as a Federal corporation. As a Federal law it authorises the ASC to receive and exercise functions and powers which are “expressed to be conferred” on it by State law: see Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 126-127. The States have passed national scheme laws such as the Corporations Law (NSW) which, despite their terms, do not of their own force confer functions and powers on the ASC but are only expressed to do so. Such functions and powers are picked up and vested in the ASC by s 11(7).
The claimants’ point is that s 597(1) is a mere definition section which is not expressed to confer any function or power. The issue thus became whether s 11(4) was the source of the ASC’s function or power to grant an authority for the purposes of s 597 or whether that function or power was expressed to be conferred by s 597(1) and actually conferred by s 11(7).
[92] Burns Philp v Murphy (1993) 29 NSWLR 723, 729 (Clarke and Handley JJA).
Their Honours explained why the general plenary power in s 11(4) did not assist:[93]
… If s 11(4) was the source of the ASC’s power the claimants would succeed in relation to the instrument of 21 March 1991 because the powers under s 11(4) were not delegated by that instrument. It would then be necessary to consider the later instruments of delegation by the ASC which were relied upon by the new trustees. If the matter were free of authority we would have concluded that the power was derived by implication from s 597(1), was expressed to be conferred by that section, and was delegated by the instrument of 21 March 1991.
Section 11(4) confers on the ASC powers which are necessary for or reasonably incidental to the performance of its functions. Such a provision is frequently inserted in a statute for more abundant caution but any grant of power statutory or otherwise carries with it by implication all incidental powers necessary for its effective exercise. Section 11(4) therefore adds nothing to the express powers and functions otherwise conferred on the ASC: see D’Emden v Pedder (1904) 1 CLR 91 at 110, Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 120, 121 and Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 496; see also McCarthy & Stone (Development) Ltd v Richmond upon Thames London Borough Council [1992] 2 AC 48 at 68.
[93] Burns Philp v Murphy (1993) 29 NSWLR 723, 730 (Clarke and Handley JJA).
Justices Clarke and Handley took a similar approach to Mahoney JA, although, as has been seen, they would have been prepared to find that the requisite power could be derived by implication from s 597(1):[94]
Section 11(4) only applies where it is possible to identify a function of the Commission. It does not apply in terms to the Commission’s powers. The distinction between a function and a power is not clear and in some contexts may be illusory but it is drawn in several places in s 11. …
Nothing of significance for present purposes ought to turn on any distinction between function and power, and in particular on whether s 597(1) is expressed to confer on the ASC a power to authorise others to act as prescribed persons or only a function of doing so. If nevertheless it is necessary to know whether s 597(1) is expressed to confer this function, and the Court should conclude that it does then s 597(1) is the source of the function and by necessary implication confers all powers necessary for its effective exercise. On the other hand if s 597(1) does not confer that function s 11(4) has nothing to operate on and cannot be the source of the power. In the result we have reached the firm conclusion that this function or power is, by necessary implication, expressed to be conferred by s 597(1), and is actually vested in the ASC by s 11(7). The challenge to the appointment of the new trustees as prescribed persons therefore fails.
[94] Burns Philp v Murphy (1993) 29 NSWLR 723, 730-731 (Clarke and Handley JJA).

The respondent also relied upon Carmichael v Commonwealth of Australia for the proposition that the different expressions used regarding the application of the exposure element in Grasso v SafeWork and in Cleanaway Operations Pty Ltd v Hanel (by the appeal judge) were not inconsistent:[248]
Clearly, the offence created by s 32 of the WHS Act does not require proof of any harm or damage. However, that does not mean that the exposure element cannot be discussed or understood by reference to a causal relationship of some kind. In its broadest sense, ‘causation’ is simply the ‘relation of cause to effect’. Both Grasso and Cleanaway make clear that, for the purposes of s 32 (when applied to the duty in s 19(1)):
(a) the relevant ‘cause’ is the failure to eliminate or minimise risks to health and safety ‘so far as is reasonably practicable’; and
(b) the relevant ‘effect’ is the exposure of a person to a risk of death or serious injury or illness – and not the actual occurrence of such death, injury or illness.
(Citations omitted.)
[248] Carmichael v Commonwealth of Australia [2022] VSC 364, [32] (Incerti J).
Later in her Honour’s reasons, Incerti J explained:[249]
[249] Carmichael v Commonwealth of Australia [2022] VSC 364, [35] (Incerti J).
In my view, the fundamental difficulty presented by the exposure element of the offence created by s 32 of the WHS Act is not labelling the relationship between breach and exposure to risk (whether that label be ‘causation’, a ‘nexus’ or some other ‘connection’), but rather defining the risk to which a person was actually exposed, and the strength of the relationship between the breach and exposure required to found criminal liability:
(a) in relation to defining the risk, I note Walton J’s observation in Grasso that the exposure element of the offence is concerned with the ‘risk as pleaded in the particular circumstances at a particular time when a person is exposed to risk’ (emphasis added). As noted by Cavanagh J, this requires a retrospective assessment by reference to the particularised measures and the relevant events that actually occurred; and
(b)     in relation to the strength of the relationship, I note that:
(i)      Walton and Cavanagh JJ in Grasso each separately required a ‘significant or substantial’ relationship between the breach and exposure to risk (applying Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338), Walton J further noting that the connection ‘must be sufficiently substantial to permit a conclusion of criminal responsibility’; whereas
(ii)     Kourakis CJ in Cleanaway formulated the relevant test as whether compliance with the duty (to take all reasonably practicable measures) ‘would have materially reduced the risk to which workers or others were exposed even if the risk substantially arose out of circumstances for which the PCBU [person conducting a business or undertaking] was not responsible’.
(Citations omitted.)
On this basis, the respondent argued that there was no substantive difference between the approaches taken in Grasso v SafeWork and by the appeal judge because they involved differences of expression which ultimately led to the same outcome.
The respondent referred to the application for special leave to appeal to the High Court in the matter of Grasso v SafeWork, where it was submitted that any difference between that case and the appeal judge’s decision was “linguistic rather than substantive”.[250] Whilst the language of causation was used in Grasso v SafeWork, both decisions “correctly identify the need for there to be in fact a connection between the breach of duty on the one hand and the exposure of an individual to risk on the other”.[251]
[250] SafeWork NSW v Grasso Consulting [2022] HCATrans 132 (12 August 2022) (Gageler, Steward and Gleeson JJ), p 12.
[251] SafeWork NSW v Grasso Consulting [2022] HCATrans 132 (12 August 2022) (Gageler, Steward and Gleeson JJ), p 12.
Accordingly, submitted the respondent, it was of no consequence whether the appeal judge followed Grasso v SafeWork. The respondent submitted that the language used by the appeal judge was to be preferred because using “causation‑based language” was undesirable:
1.It had a different legal meaning in other established legal contexts, such as in the law of negligence;
2.It was liable to suggest, wrongly, that the statutory offences required proof of a causal link between the employer’s conduct and any accident or injury.[252] In other words, using that language was liable to suggest, incorrectly, that the cause of the collision must be proved.
[252] Vibro-Pile (2016) 49 VR 676, [83] (Maxwell P, Redlich and Whelan JJA).
The respondent contended that the appeal judge did not conflate the different elements of the offence under s 32 of the WHS Act. Rather, the appeal judge expressly distinguished s 32 from the basic offence under s 33 and described the effect as being the “critical additional element of s 32”, being the exposure element.[253]
[253] Appeal judge, [36].
Moreover, the appeal judge did not err in concluding that the proper construction to s 32 of the WHS Act was that the connection which must be proved between the alleged failure to comply with the duty, and the exposure to the identified risk resulting from the failure to comply with the duty, was that there were reasonably practicable measures available to Cleanaway which, if adopted, would have materially reduced the risk.[254]
[254] Appeal judge, [18].
The respondent relied on the proposition that even if it were concluded that the causation test expressed in Grasso v SafeWork was in some way different to the test applied by the appeal judge, the appeal judge specifically contemplated that different test and determined that the “exposure element” was still made out.[255]
[255] Appeal judge, [65].
Accordingly, the respondent contended that there could be no substantial miscarriage of justice.
The determination of appeal ground 4
The form of s 32 of the WHS Act relied on in this case corresponds with the harmonised provisions, including the provision considered in Grasso v SafeWork.[256] An offence under s 32 of the WHS Act comprises the following elements:
1.The existence of a health and safety duty (the “duty element”);
2.The failure to comply with that duty (the “breach element”); and
3.The exposure of an individual to the risk of death or serious injury or illness resulting from the failure to comply with the duty (the “exposure element”).
[256] Grasso v SafeWork [2021] NSWCCA 288, [15]-[17] (Walton J).
Respectfully, it is preferable to describe the third limb as the “exposure element” rather than a test of causation.[257] That better reflects the text of the provision and avoids the potential for confusion with the use of the concept of causation in other contexts. The question in this case, however, is not whether Grasso v SafeWork or Vibro-Pile should be followed, but whether the appeal judge relevantly erred in fact or law when considering the exposure element, s 32(c) in this case, and whether it had been established that the exposure resulted from the breach of duty.
[257] Vibro-Pile (2016) 49 VR 676, [84]-[86] (Maxwell P, Redlich and Whelan JJA); Carmichael v Commonwealth of Australia [2022] VSC 364, [26] (Incerti J).
Grasso v SafeWork was a case where the defendant and its director had been convicted after a roof collapsed during the demolition of the old Sydney Entertainment Centre, narrowly missing two workers. They succeeded in setting aside those convictions on appeal because, on the evidence, the engineering advice they gave had not been followed.
Had the advice been followed and had the roof collapsed, they may have been liable for the exposure of workers to the risk of death or serious injury. As it was, no failing by them exposed demolition workers to the risk of death or serious injury,[258] and the expert analysis on the breach issue (the failure to adopt computer modelling) did not assist the determination of the exposure element.[259] As this issue was explained by Walton J:[260]
… the appeal should be upheld with respect to the issue of causation, essentially upon the basis of the conclusions reached by Cavanagh J that there were too many intervening events or factors to permit the finding that the way in which Mr Grasso depicted his advice diagrammatically without additional words was a substantial and significant cause to the demolition workers being exposed to a risk of death or injury whilst they were undertaking demolition work. Further, there was an absence of evidence as to how and why a failure to undertake computer modelling constituted a substantial cause of the risk to which the workers were exposed at the time the risk materialised.
[258] Grasso v SafeWork [2021] NSWCCA 288, [2] (Simpson AJA).
[259] Grasso v SafeWork [2021] NSWCCA 288, [7] (Simpson AJA).
[260] Grasso v SafeWork [2021] NSWCCA 288, [12] (Walton J).
In the same case, Cavanagh J explained:[261]
… it is important not to conflate non-compliance with a health and safety duty with the issue of causation which is an essential element of the offence. Breach must be assessed prospectively but causation must be assessed having regard to what actually occurred.
In Bulga this Court said:
“[I]t was necessary to establish whether the failure to appoint an SAC was causally related to the risk of the employee’s safety which occurred on the evening in question. That question is to be determined by the application of common sense to the facts in question, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter”.[262]
The causation question which arises in this matter is how or whether the conduct of GCE as particularised by the respondent was causally related to the risk to the safety of the demolition workers that occurred at the time when they were working under the roof.
[261] Grasso v SafeWork [2021] NSWCCA 288, [99]-[101] (Cavanagh J).
[262] Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338, [128] (Bathurst CJ, Hidden and Davies JJ).
In Work Health Authority v Outback Ballooning Pty Ltd, the High Court explained that, under the harmonised system of work health laws, s 19(2) requires that a person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of persons “is not put at risk from work carried out as part of the conduct of the business or undertaking”.[263] Section 19(3) provides that, without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as reasonably practicable, various matters directed to the protection of employees and others from risks to their health and safety from work carried out as part of the conduct of the business or undertaking.[264]
[263] Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428, [2] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
[264] Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428, [2] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
The WHS Act is contravened when there is a failure by the person conducting a business or undertaking to take particularised measures to prevent exposure to an identifiable risk.[265] At the heart of any prosecution for offending under s 32 for a breach of the duty under s 19 is the exposure of workers and others to the risk of death or serious injury, and that does not require proof that there has been the manifestation of that risk, still less that a relevant accident or incident has actually caused death or serious injury. As the Victorian Court of Appeal explained in Vibro-Pile:[266]
As has been repeatedly pointed out in the authorities, proof of breach is independent of any link with injury or death.[267] Thus, the High Court in Kirk said:
It is not necessary that harm has already befallen an employee for an offence to have been committed. Where an inspector authorised under the OH&S Act identifies a risk to the health, safety or welfare of employees present at a workplace, which an employer has not addressed, [the general duty] may be contravened. An obvious example would be the failure to guard dangerous machinery.
In many instances, as the plurality judgment in Kirk[268] pointed out, the specification in the charge of the measure which the employer should have taken will identify the risk being addressed. Proof that the specified measure would have eliminated or reduced that risk establishes the requisite nexus between the employer’s omission and the risk. There is no necessity to introduce notions of causation. As we have suggested, such notions are likely to lead to misunderstanding, as occurred in this case.
Moreover, undue focus on the accident is likely to lead to an inappropriately narrow definition of the risk the subject of the charges. This point has been succinctly expressed, in terms approved by the New South Wales Industrial Court, as follows:
[C]areful attention must be paid to the correct identification of the risk the subject of the charges … [I]t is inappropriate to seek to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight: it is the general class of risk which matters. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation.[269]
[265] Kirk (2010) 239 CLR 531, [12]-[13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338, [11] and [123] (Bathurst CJ, Hidden and Davies JJ), concerning predecessor legislation.
[266] Vibro-Pile (2016) 49 VR 676, [84]-[86] (Maxwell P, Redlich and Whelan JJA).
[267] Kirk (2010) 239 CLR 531, 553 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Director of Public Prosecutions (DPP) v Frewstal Pty Ltd (2015) 47 VR 660, [41] (Maxwell P), [126]‑[127] (Priest and Kaye JJA).
[268] Kirk (2010) 239 CLR 531, [14] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[269] State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIR Comm 303, [26], cited in New South Wales v Cahill (No 2) (2011) 210 IR 112, [39], [45] (Boland P, Walton VP and Staff J).
A portion of this passage was cited with approval in Grasso v SafeWork.[270]
[270] Grasso v SafeWork [2021] NSWCCA 288, [21] (Walton J).
Granted, whilst workplace prosecutions are usually commenced in the wake of death or serious injury, that should not be permitted to obscure what are the elements of a charge under s 32 of the WHS Act.[271] That is consistent with what was observed by the Court of Criminal Appeal in Unity Pty Ltd v SafeWork NSW:[272]
While prosecutions for breach of occupational safety laws are rarely, if ever, brought where there has not been a serious injury or death, the test of breach of duty nevertheless remains prospective. However, there are different levels of particularity at which risks can be assessed. Prospectively, a reasonably broad approach may be appropriate; by contrast, a retrospective analysis of the precise circumstances of an injury or fatality may lead to a narrow description of the risk which materialised. …
[271] Vibro-Pile (2016) 49 VR 676, [1] (Maxwell P, Redlich and Whelan JJA).
[272] Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266, [55] (Basten JA, with whom Beazley P and Wilson J agreed).
In Vibro-Pile, the convictions concerned offences under s 21 of the Occupational Health and Safety Act 2004 (Vic). The Court of Appeal explained that the prosecution in that case needed only to establish that:[273]
(a)there was a risk to employee health and safety;
(b)the measures identified as necessary would have eliminated or reduced the risk (as the case may be); and
(c)it was ‘reasonably practicable’ in the circumstances for the employer to have taken those measures.
[273] Vibro-Pile (2016) 49 VR 676, [6] (Maxwell P, Redlich and Whelan JJA).
Clearly, the third limb in s 32 of the WHS Act, the “exposure element”, did not form part of the prosecution case in Vibro-Pile.
When looking at the third limb of s 32, the exposure element under s 32(c), it may be accepted that it is necessary to look at the issue having regard to the context in which it arises, namely, a criminal prosecution, but that does not mean that it is necessary to use the language of causation. Some care should therefore be exercised when considering passages such as the following:[274]
Causation is to be viewed in a common sense and a practical way, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 (“Royall”) at [17] (per Mason CJ), [19] (per Deane and Dawson JJ) and [15] and [21] (per Toohey and Gaudron JJ). As Allsop P stated in Whelan, Heath Andrew v R [2012] NSWCCA 147 at [2], whilst causation is an issue that has been the subject of much debate in some legislation in the civil sphere, in crime, it remains, in many contexts a jury question and is governed by the test in Royall. The question is one of fact, dealt with by common sense, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter and so the causal connection must be sufficiently substantial to permit a conclusion of criminal responsibility.
One further observation may be made with respect to causation. The question of causation will necessarily be impacted by the manner in which the charges are framed but, as a foundational proposition, the question excited by causation is whether the duty holder’s acts or omissions cause the risk as pleaded in the particular circumstances at a particular time when a person is exposed to the risk: The Crown in the Right of theState of New South Wales (Department of Education and Training) v Maurice O’Sullivan (2005) 143 IR 57; [2005] NSWIRComm 198 at [45].
[274] Grasso v SafeWork [2021] NSWCCA 288, [28]-[29] (Walton J).
In this case, the appeal judge was aware of the “exposure element” but preferred to avoid using the language of causation. The appeal judge explained his conclusion on the exposure element in the following way:[275]
By ground five Cleanaway contends that the Magistrate erred in finding that the ‘causation’ element of the offences was satisfied by proof that the alleged measures would have reduced the risk. Cleanaway submits that the Magistrate should have found that, the prosecution was required to prove that the omission to put in place the alleged measures was a significant or substantial cause of the nominated people being exposed to the specified risk of serious injury or death.
I would dismiss ground five because on a proper construction of s 32 of the Act the only connection which must be proved between the exposure to risk and the alleged breach of duty is that there were reasonably practicable measures which, if adopted by [Cleanaway], would have materially reduced the risk to which workers or others were exposed even if the risk substantially arose out of circumstances for which [Cleanaway] was not responsible.
[275] Appeal judge, [17]-[18].
At the core of Cleanaway’s complaints are two propositions. The first is that the relevant risk was caused by the failure of the brakes rather than by the failure to properly evaluate and instruct Mr Hicks regarding the appropriate means of traveling down steep descents, such as the Freeway, in a fully laden vacuum truck using a manual transmission. The second is that the appeal judge ignored the third limb, eliding the breach and exposure elements.
To a significant extent the first proposition is answered by various of the reasons given concerning the earlier grounds.
There was evidence to support the findings made by the magistrate and upheld by the appeal judge that a cause of the loss of control, and by inference the risk of death or serious injury, was the failure to evaluate and instruct Mr Hicks regarding appropriate manual gear selection. The weight of the expert and lay evidence led by the respondent was accepted as demonstrating that a significant and material cause of the exposure of Cleanaway’s workers and others to death or serious injury was the failure to implement reasonably practicable measures which would have ensured that Mr Hicks’ driving ability was properly evaluated before he got onto the Freeway, or at the least Mr Hicks was instructed about how to make an appropriate gear selection in circumstances such as those applying on 18 August 2014.

It ought not be overlooked that there was no opinion evidence called in opposition to those of Dr Rechnitzer’s opinions that were accepted.
Cleanaway had no clear system for evaluating Mr Hicks’ competence and it could have kept him in trucks with automatic transmission, or operating with the assistance of a buddy, until his competence to drive a vacuum truck with a manual transmission on his own down a descent such as the Freeway had been properly evaluated. In any event, it was open to find that it was by reason of his inexperience that Mr Hicks selected the wrong gear at the start of his descent and was unable to control the speed of the truck and keep it at a safe speed until it was necessary to apply the brakes and bring the truck to a stop at the bottom of the Freeway.
Mr Hicks lost control well before that stage, and was travelling at around 80 km/h and unable to change down or effectively apply the footbrake as the alarm sounded when the decline steepened, after he had passed the two arrester beds.[276]
[276] Appeal judge, [94]-[95]; Magistrate, [236]-[238].
As for the suggested misapplication by the appeal judge of the third element concerning the exposure to risk, the appeal judge was well aware of the need for this to be separately established:[277]
The critical additional element of s 32 of the Act, which distinguishes it from the basic offence enacted by s 33, is that a person is exposed to a risk of death or serious injury or illness in respect of which all reasonably practicable measures to eliminate or minimise the risk have not been taken. The metes and bounds of a discrete offence against s 32 of the Act are therefore subject to the further, narrowing filter, that a person has been exposed to the risk which the employer has failed to eliminate or minimise. It follows even more strongly, therefore, that an offence against s 33 is delineated by the particular risk to which a person has been exposed. A charge which alleged that a person was exposed to a multiplicity of risks, would necessarily be bad for duplicity. The conclusion in respect of s 32 supports the taking of a symmetrical approach to s 33 of the Act even though exposure to a risk is not an element of the basic offence.
There can be no offence against s 32 of the Act if the only risk flowing from the failure to take all reasonably practical measures to minimise or eliminate it, is of minor harm. However, the concept of exposure requires something more than simply the failure to minimise risk. There is a distinction between failing to eliminate or minimise risks to health and safety (to use the language of s 17 of the Act) and putting a person at risk (to use the language of s 19(2)) on the one hand, and that element of s 32(c) of the Act which is exposing an individual to risk on the other. Some examples may help to illuminate that distinction.
[277] Appeal judge, [36]-[37].
The appeal judge then gave two relevant examples:[278]
A PCBU conducting an enterprise who fails to check the brakes of heavy vehicles as often as it is reasonably practicable to do so fails to minimise the risk of a collision caused by a brake failure. That PCBU does not ensure the safety of the enterprise’s workers and puts others at risk. The PCBU, therefore, breaches the duty and commits an offence against s 33 of the [WHS Act] even if the vehicle has not left the garage after the last inspection was due. So too if the vehicle is driven well after a scheduled inspection even though the brakes are nevertheless found to be in proper working order. However, if the truck is driven out of the garage, and the brakes are then found to have a latent fault which might have resulted in a catastrophic brake failure, and the basic offence been committed, but in addition, persons in the vehicle’s path have also been exposed to risk. An offence against s 32 of the Act will therefore have been committed.
So too, with respect to a failure to assess the competence of a newly engaged driver. A failure to make an assessment when it is reasonably practicable to do so, will result in a breach of the duty and a failure to minimise risk and the commission of a s 33 offence. If the driver is found, in fact, to be perfectly competent to drive the vehicle on the route it took, no one will have been exposed to a risk. On the other hand, if the driver is shown not to have the necessary competencies to control the speed of the truck and manage a brake failure down the steep route on which the truck was driven, the PCBU commits a s 32 offence.
[278] Appeal judge, [38]-[39].
Whilst the appeal judge expressed a preference for the approach taken in Vibro-Pile rather than the approach taken in Grasso v SafeWork, and whether or not he had a misunderstanding about the respective statutory tests, his preference was clearly in connection with avoiding the language of “causation” and adhering to the statutory test.[279] The question was whether the exposure to the risk of death or serious injury or illness resulted from the failure of Cleanaway to comply with the duty element.
[279] Appeal judge, [53]-[55], [63]-[65].
To a significant extent, the criticisms made by Cleanaway have been answered by Incerti J in Carmichael v Commonwealth of Australia in the passages earlier set out.[280] The appeal judge did not misunderstand or elide the exposure element when upholding the finding that it had been proved that the exposure to death or serious injury resulted from the breach of duty.
[280] Carmichael v Commonwealth of Australia [2022] VSC 364, [31]-[35] (Incerti J).
However, it is in any event significant that, even on the approach favoured by Cleanaway, the appeal judge found that “causation” was established:[281]
If, contrary to my construction of s 32, I were to consider the element of exposure through the prism of causation in this case, then I would find that notwithstanding the brake defects, the failure to instruct Mr Hicks, on the effective use of gears to retard the speed of the truck when descending the Freeway, was a significant cause of the risk of collision, between the vacuum truck and other road users, arising from an inability to stop the truck, notwithstanding the brake defects.
[281] Appeal judge, [65].
In the circumstances of this case, these findings were open on the evidence, and it has not been shown that the appeal judge erred in fact or law concerning the exposure element. Appeal ground 4 should be dismissed.
Conclusion
Permission to appeal should be granted. The appeal should be dismissed.