John Holland Pty Ltd v Wallis
[2022] WASC 358
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: JOHN HOLLAND PTY LTD -v- WALLIS [2022] WASC 358
CORAM: ARCHER J
HEARD: 21 JUNE 2022 AND FURTHER SUBMISSIONS FILED 26 AND 28 JULY 2022
DELIVERED : 8 NOVEMBER 2022
FILE NO/S: CIV 2150 of 2021
MATTER: An application under the Magistrates Court Act 2004 (WA) section 36 for a review order against T Hall, Magistrate of the Magistrates Court at Perth
BETWEEN: JOHN HOLLAND PTY LTD
Applicant
AND
CRAIG ROBERT GEORGE WALLIS
First Respondent
MAGISTRATE THOMAS RUSSELL HALL
Second Respondent
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Interested Party
Catchwords:
Review of a magistrate's refusal to dismiss or stay a prosecution - Validity of prosecution notice - Efficacy of delegation of power to authorise an inspector to commence a prosecution - Statutory construction - Source of power to authorise - Source of function to authorise - Necessary intendment - Incidental power
Legislation:
Work Health and Safety Act 2011 (Cth), ss 152 - 153, 260
Result:
Decision quashed
Category: A
Representation:
Counsel:
| Applicant | : | A P Young KC & K Kumar |
| First Respondent | : | M Howard SC & J Solliss |
| Second Respondent | : | No appearance |
| Interested Party | : | No appearance |
Solicitors:
| Applicant | : | Sparke Helmore Lawyers |
| First Respondent | : | Commonwealth Director of Public Prosecutions |
| Second Respondent | : | State Solicitor's Office |
| Interested Party | : | No Appearance |
Case(s) referred to in decision(s):
A v Maughan [2016] WASCA 128; (2016) 50 WAR 263
Ashwin v Housing Authority [2019] WASC 144
Brockway v Kirk [2019] WASC 8
Director of Public Prosecutions (Cth) v Haddad [2019] NSWCA 55; (2019) 367 ALR 269
Egan v Willis [1998] HCA 71; (1998) 195 CLR 424
Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727
Hemmett v Market Direct Group [2018] WASC 214
HongkongBank of Australia Ltd v Australian Securities Commission (1992) 40 FCR 402
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Mercantile Mutual Life Insurance Co Ltd v Australian Security Commission (1993) 40 FCR 409
Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCA 820; (2004) 81 ALD 365
R v Judd [1919] HCA 9; (1919) 26 CLR 168
Rayney v AW [2009] WASCA 203
Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357
Re Magistrate G Benn; Ex parte Gething [2019] WASC 380
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Taylor v Attorney General [2019] HCA 30; (2019) 268 CLR 224
Trolly, Draymen and Carters Union of Sydney and Suburbs v Master Carriers Association of NSW [1905] HCA 20; (1905) 2 CLR 509
ARCHER J:
Introduction
On or about 31 January 2019, the applicant, John Holland, was charged with an offence against s 32 of the Work Health and Safety Act 2011 (Cth) (WHS Act). The prosecution notice was signed by the first respondent, Mr Craig Wallis.
On 26 July 2021, the applicant applied to the Magistrates Court for an order that the prosecution be dismissed or stayed permanently on the basis that the prosecution notice was invalid (Dismissal Application). The applicant asserted that Mr Wallis was not authorised to commence the prosecution.
An offence against s 32 of the WHS Act is a summary offence.[1] Section 13 of the Crimes Act 1914 (Cth) relevantly provides that, unless the contrary intention appears in the Act creating the offence, any person may institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction. The contrary intention appears in the WHS Act, in s 230. Section 230 relevantly provides that proceedings for an offence against the WHS Act can only be brought by the regulator, an inspector with the written authorisation of the regulator, or the Director of Public Prosecutions.
[1] See the penalty set out in s 32 of the WHS Act and s 4H of the Crimes Act 1914 (Cth). The Magistrates Court has jurisdiction to hear and determine proceedings for Commonwealth summary offences - see s 68(2) of the Judiciary Act 1903 (Cth) and s 9 and s 11 of the Magistrates Court Act 2004 (WA).
The WHS Act does not expressly confer a power on the regulator to provide a written authorisation to an inspector. The parties agree that the regulator had such a power. The applicant says the power comes from the regulator's general power, given by s 153(1) of the WHS Act, to do all things necessary or convenient to be done for or in connection with the performance of her functions (Section 153 Power). Mr Wallis says that the power to authorise is given by s 230 itself, as a matter of necessary intendment.
At the relevant time, the regulator was a Ms Taylor, the Chief Executive Officer of Comcare (CEO).[2] The CEO delegated her powers and functions under various provisions of the WHS Act to a Mr Blucher, the then Acting General Manager of the Regulatory Operations Group of Comcare (Delegation Instrument). The provisions listed in the Delegation Instrument included s 230 of the WHS Act, but did not include s 153.
[2] By s 4 of the WHS Act, the 'regulator' is Comcare. Comcare is statutory corporation established under s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Section 74(1A) of the SRC Act provides that Comcare is constituted by its Chief Executive Officer. Ms Taylor was appointed to the position by instrument dated 22 July 2014 - a copy of the instrument is at page 36 of the affidavit of Ashley Joseph Sherr filed 3 November 2021 (Sherr Affidavit).
On 30 January 2019, Mr Blucher provided written authorisation to Mr Wallis to commence proceedings against the applicant for offences against the WHS Act.[3] Mr Wallis is (and was at the relevant time) an inspector within the meaning of the WHS Act.[4]
[3] Sherr Affidavit page 20.
[4] See Applicant's Outline of Submissions filed 14 February 2022 (Applicant's Submissions) [23(a)].
The applicant submits that, because the provisions listed in the Delegation Instrument did not include s 153, the power to authorise an inspector was not delegated. Therefore, it contends that Mr Blucher's authorisation was not an authorisation 'of the regulator'. It submits that Mr Wallis therefore did not have the power to commence the prosecution.
Mr Wallis contends that s 230 gives the CEO the power to give written authorisation to an inspector to commence prosecutions. If it does, it would follow that the delegation to Mr Blucher of the powers and functions in s 230 included that power.
In the alternative, Mr Wallis contends that, even if the power to give written authorisation to an inspector is not contained within s 230, the function is. He submits that, if that is correct, the delegation of that function necessarily carried with it the powers to perform the function, including the Section 153 Power, as a matter of necessary intendment.[5]
[5] First Respondent's Submissions in Opposition to the Application filed 25 February 2022 (First Respondent's Submissions) [31].
In response to Mr Wallis' primary contention, the applicant submits that s 230 of the WHS Act does not confer any powers. In particular, it submits that s 230 does not confer a power to give written authorisation to an inspector.
In its oral submissions in the hearing of the Review Application, the applicant raised an additional argument in opposition to Mr Wallis' primary contention. It submitted that the Delegation Instrument had failed to delegate any power or function under s 230 due to its terms. The Delegation Instrument relevantly said that it delegated functions and powers 'which have been specified' in the instrument. The applicant submits that simply listing s 230 did not constitute having 'specified' the functions and powers in that section.
In response to Mr Wallis' alternative contention, the applicant submits that the Delegation Instrument did not include any express power to give written authorisation to an inspector or the Section 153 Power.
If Mr Wallis did not have the power to commence the prosecution, the prosecution notice was invalid. It is now too late for the prosecution to issue a fresh notice. Prosecutions under the WHS Act must be commenced within two years after the offence first comes to the notice of the regulator.[6] The prosecution notice alleges offences occurring on 1 February 2017. The alleged offences came to the notice of the regulator on that date.[7] The prosecution notice was issued on 31 January 2019 - on the last possible day within which to commence a prosecution.
[6] WHS Act s 232(1)(a).
[7] ts 42.
The Dismissal Application was heard by the second respondent, his Honour Magistrate Hall, on 21 September 2021. His Honour dismissed the Dismissal Application (Decision).
On 1 November 2021, the applicant applied to this Court for a review order of the Decision under s 36 of the Magistrates Court Act 2004 (WA) (Review Application). The applicant asserts, in effect, that the magistrate ought to have found that Mr Wallis was not authorised to commence the prosecution.
The learned magistrate has, appropriately, provided a notice of intention to abide.
Review Orders[8]
[8] The following summary of legal principles draws from my decision in Re Magistrate G Benn; Ex parte Gething [2019] WASC 380.
Section 36 of the Magistrates Court Act 2004 (WA) is a statutory judicial review power.[9] Section 36(1) provides:
[9] Rayney v AW [2009] WASCA 203 [27] (McClure JA, as her Honour then was; Buss JA, as his Honour then was, and Newnes JA agreeing).
(1)If a person is or would be aggrieved by one or more of the following ‑
(a)the failure of a Court officer to do any act or make any order or direction ‑
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
A review order can only be made if the applicant establishes an arguable case that an error of the type identified in s 36(1)(a), (b) or (c) was made. To fall within s 36(1), the error must be either a jurisdictional error, or it must be an error of law on the face of the record.[10]
[10] Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357. See also Rayney [27] ‑ [34] and Ashwin v Housing Authority [2019] WASC 144 [3] ‑ [9]. As to what a jurisdictional error is, see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J) and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.
The procedure for making, and in relation to, an application under s 36(1) is set out in O 56A of the Rules of the Supreme Court 1971 (WA).
If a review order is made, and if at the hearing of the review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, the Court may:[11]
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
[11] Section 36(4) of the Magistrates Court Act.
The application for a review order and the hearing of any review order made (and for relief under s 36(4)) may be heard together.[12] That is what occurred in this case.
[12] Hemmett v Market Direct Group [2018] WASC 214 [38].
The Application
The grounds of the Application are:
1.The Magistrate erred by failing to:
a.find that the prosecution notice by which the Criminal Proceeding was commenced was unauthorised and invalid;
b.find that a valid prosecution notice was, and is, an essential precondition and prerequisite to the exercise of the Magistrates Court's jurisdiction to hear and determine the Criminal Proceeding; and, therefore,
c.order that the Criminal Proceeding is dismissed or stayed permanently.
2.The Magistrate's failure to dismiss the Criminal Proceeding or stay it permanently was contrary to law and his duty to prevent abuse of the Magistrates Court's process. (MCA, s36(1)(a)(i)).
3.The matters referred to in paragraph 1 above might have justified an order of mandamus requiring the Magistrate to order that the Criminal Proceeding is dismissed or stayed permanently. (MCA, s36(1)(a)(ii)).
4.The Primary Order permits the Criminal Proceeding to proceed although the Magistrates Court is without jurisdiction to deal with the offence charged and, therefore, any further steps including a trial would be an abuse of the Magistrates Court's process. (MCA, s36(1)(b)(i)).
5.The matters referred to in paragraph 1 above might have justified an order of prohibition preventing the Magistrate from permitting the Criminal Proceeding to proceed. (MCA, s36(1)(b)(ii)).
6.By reason of the matters referred to in paragraph 1 above, the Primary Order was, and is, affected by and reflects jurisdictional error and permits (further) abuse of the Magistrates Court's process. (MCA, s36(1)(c)(i)).
7.The matters referred to in paragraph 1 above might have justified an order of certiorari requiring the Magistrate to order that the Criminal Proceeding is dismissed or stayed permanently. (MCA, s36(1)(c)(ii)).
It can be seen from this that the applicant alleges that the magistrate's failure to dismiss the prosecution was an error of the type identified in each of s 36(1)(a), (b) or (c), and by reason of each of the alternative grounds set out in each of those subparagraphs.[13] Despite this, the applicant's submissions did not attempt to address each of the grounds.
[13] See also the Applicant's Submissions [6].
In this case, the critical issue is whether Mr Wallis had the written authorisation of the regulator to commence the prosecution. If he did not, he did not have the power to commence the prosecution. It would follow that the Magistrates Court did not have jurisdiction to deal with the prosecution and the magistrate's dismissal of the Dismissal Application involved jurisdictional error.
If the Magistrates Court did not have jurisdiction to deal with the prosecution, the criminal proceedings should be quashed, unless there is a reason to deny relief.[14] Mr Wallis did not contend that, if the Magistrates Court did not have jurisdiction, there was a reason to refuse relief.[15]
[14] See A v Maughan [2016] WASCA 128; (2016) 50 WAR 263 [19] - [20] and [135] (Martin CJ), [152] (McLure P) and [167] (Corboy J).
[15] See ts 42.
The issues
Determining whether Mr Wallis had the written authorisation of the regulator to commence the prosecution will require the following issues to be addressed:
1.Did the Delegation Instrument, on its terms, delegate functions and powers under s 230 of the WHS Act? If not, Mr Blucher did not have the power to give Mr Wallis written authorisation to commence the prosecution, and the criminal proceedings should be quashed.
2.If the answer to Issue 1 is 'yes', does s 230(1) confer a power to authorise an inspector to commence proceedings? If so, that power would have been delegated to Mr Blucher by the Delegation Instrument. This would mean that Mr Blucher had the power to give Mr Wallis written authorisation to commence the prosecution, and the Review Application should be dismissed.
3.If the answer to Issue 2 is 'no', did the Delegation Instrument necessarily carry with it such a power? If not, Mr Blucher did not have the power to give Mr Wallis written authorisation to commence the prosecution, and the criminal proceedings should be quashed. Issue 3 raises two questions:
a.Does s 230(1) contain a function of authorising inspectors to commence prosecutions?
b.If so, did the Delegation Instrument delegate the power to carry out that function?
Legal Framework
Who may institute a prosecution?
Section 13 of the Crimes Act provides:
13Institution of proceedings in respect of offences
Unless the contrary intention appears in the Act or regulation creating the offence, any person may:
(a)institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or
(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.
It is common ground that the contrary intention appears in the WHS Act, in s 230. Section 230 relevantly provides:
230Prosecutions
(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).
…
(4)Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an offence against this Act.
Accordingly, the only persons who may commence a prosecution for an offence against the WHS Act are the regulator, an inspector with the written authorisation of the regulator, and the Director of Public Prosecutions.
The 'regulator' referred to in s 230(1)(a) is Comcare.[16] Section 74(1A) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) provides that Comcare is constituted by its CEO. At the relevant time, the CEO was Ms Taylor.
[16] Section 4 of the WHS Act. Comcare is statutory corporation established under s 68 of the SRC Act.
For ease of reference, I will refer to 'an inspector with the written authorisation of the regulator' as an 'Authorised Inspector'.
Comcare's functions and powers
Comcare is given numerous functions and powers under the WHS Act (and the SRC Act[17]).
[17] See s 69 and s 70 of the SRC Act.
Section 152 and s 153 of the WHS Act relevantly provide:
152Functions of regulator
The regulator has the following functions:
(a)to advise and make recommendations to the Minister and report on the operation and effectiveness of this Act;
(b)to monitor and enforce compliance with this Act;
(c)to provide advice and information on work health and safety to duty holders under this Act and to the community;
(d)to collect, analyse and publish statistics relating to work health and safety;
(e)to foster a co‑operative, consultative relationship between duty holders and the persons to whom they owe duties and their representatives in relation to work health and safety matters;
(f)to promote and support education and training on matters relating to work health and safety;
(g)to engage in, promote and co‑ordinate the sharing of information to achieve the object of this Act, including the sharing of information with a corresponding regulator;
(h)to conduct and defend proceedings under this Act before a court or tribunal;
(i)any other function conferred on the regulator by this Act.
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.
Inspectors are given numerous powers and functions under the WHS Act.[18] Other provisions of the WHS Act confer discrete powers on Comcare.[19]
[18] See, in particular, division 2 of part 9.
[19] See, for example, s 155 and s 156.
By s 154 of the WHS Act, Comcare (i.e., the CEO) may delegate a power or function under the Act (other than the power of delegation) to, among others, an inspector or prescribed staff. It provides:
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.
Construction of delegation instrument
In Mercantile Mutual Life Insurance Co Ltd v Australian Security Commission,[20] the Full Court of the Federal Court was required to construe two instruments of delegation. Gummow J said:[21]
No doubt, instruments of this character are not necessarily drafted with the precision which should attend the preparation of delegated legislation. Nevertheless, the steps taken under or pursuant to such instruments may affect in a significant manner the rights and liabilities of a wide range of third parties. Accordingly, the terms of these instruments should be fairly but not over-generously construed.
[20] Mercantile Mutual Life Insurance Co Ltd v Australian Security Commission (1993) 40 FCR 409.
[21] Mercantile Mutual, 441.
In Parks Holdings Pty Ltd v Chief Executive Officer of Customs,[22] Goldberg J said:
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 issue[d] 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.'
Did the Delegation Instrument, on its terms, delegate functions and powers under s 230 of the WHS Act? (Issue 1)
[22] Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCA 820; (2004) 81 ALD 365 [99] (Goldberg J).
The applicant submitted that the Delegation Instrument failed to delegate any power or function under s 230 due to its terms.
The Delegation Instrument was titled 'Instrument of Delegation' and dated 24 October 2017.[23] It was awkwardly expressed. In essence, however, the instrument provided that the CEO delegated to those named in Part 1 of each schedule 'to perform the functions or exercise the powers of the WHS Act … which have been specified in Part 2 of that Schedule'. The instrument further said that '[t]he description of a power or function in the "Heading" column in the Schedule is for information only'.
[23] Sherr Affidavit page 21.
Part 1 of Schedule 1 named the 'General Manager of the Regulatory Operations Group of Comcare' (GMC).
Part 2 of Schedule 1 was titled 'Functions and Powers'. It relevantly stated 'The powers and functions under the following sections of the WHS Act:' and listed various provisions including s 230. The list did not include s 153.
The applicant submits that simply listing s 230 did not constitute having 'specified' the functions and powers. It submits:[24]
We take the word 'specified' as requiring a specification because there is no specification. If it had been meant to confer whatever power, whatever function you might find in that box, they might have used a different formula, but they didn't. They used a very particular formula. They said, 'We're not giving you all the functions and powers, we're giving you the ones which have been specified.'
[24] ts 30.
I agree that the Delegation Instrument used a particular formula. I do not agree that the formula meant that listing provisions that contained functions or powers (or both) was not 'specifying' the functions and powers contained within those listed provisions.
The Delegation Instrument relevantly said that the CEO delegates to named people 'to perform the functions or exercise the powers of the WHS Act … which have been specified in Part 2 of that Schedule'. Part 2 relevantly stated 'The powers and functions under the following sections of the WHS Act:' and listed various provisions including s 230. In my view, the plain meaning of these words is that 'the functions [and] powers of the WHS Act … specified in Part 2' were the functions and powers contained within the listed sections.
In my view, reading the Delegation Instrument as a whole, it delegated to the GMC any and all of the powers and functions under s 230 of the WHS Act. I agree with Mr Wallis' submission that the applicant was seeking to place more weight on the word 'specified' than it could reasonably bear.[25]
[25] See ts 34.
This conclusion disposes of issue 1. The next issue is whether s 230(1) confers a power to authorise an inspector to commence proceedings. If it did, then, in light of my conclusion on issue 1, Mr Blucher had the power to give Mr Wallis the written authorisation.
Does s 230(1) confer a power to authorise an inspector to commence proceedings? (Issue 2)
As part of its contentions, the applicant submitted that the source of the power to prosecute arises from s 13 of the Crimes Act. It submitted that s 230 of the WHS Act simply limits that power.[26] Mr Wallis did not agree. Nevertheless, it was common ground that it was unnecessary to determine this issue.[27] The critical issue is rather whether s 230 of the WHS Act confers a power to authorise an inspector to prosecute.
[26] Applicant's Submissions [35] - [37]. See also ts 31.
[27] ts 49 - 51.
It was common ground that the regulator has the power to give an inspector written authorisation to commence a prosecution for an offence against the WHS Act.[28] The dispute is whether the source (or one source) of the power is s 230(1)(b) of the WHS Act. Mr Wallis contends that it is. The applicant contends it is not, and that the only source of the power is the general Section 153 Power.
Mr Wallis' submissions
[28] See Applicant's Submissions [41] and First Respondent's Submissions [29].
Mr Wallis submits that Comcare has the function of commencing prosecutions for offences under the WHS Act. He submits that part of that function is expressed in s 230(1)(b) to be that the regulator controls which, if any, inspector may commence a prosecution.[29]
[29] First Respondent's Submissions [22].
Mr Wallis submits that the function of controlling which inspectors may commence a prosecution falls under s 152(i), rather than s 152(h).[30] It will be recalled that, by s 152(i), the regulator's functions include 'any other function conferred on the regulator by this Act'. By s 152(h), the regulator's functions include 'to conduct and defend proceedings under this Act before a court or tribunal'.
[30] ts 35. See also ts 40 - 41. These submissions amended the position that had been advanced in the written submissions - see First Respondent's Submissions [22].
Mr Wallis submits, in effect, that s 230(1)(b) confers on the regulator both:
1.a function (within the meaning of s 152(i)) of controlling prosecutions (by giving, or withholding, written authorisations); and
2.the power to control prosecutions by the giving (or withholding) of written authorisations.[31]
[31] ts 35.
Mr Wallis notes that there is no express power in the WHS Act to give an inspector written authorisation to commence a prosecution. He submits that, as a matter of necessary intendment, s 230(1)(b) of the WHS Act is to be read as providing that such authorisation may be given by Comcare.[32] He submits that '[w]ithout that, s 230(1)(b) of the WHS Act would be a dead letter and only the regulator itself (i.e. the CEO) could bring such a proceeding (under s 230(1)(a) of the WHS Act)'.
[32] First Respondent's Submissions [29].
Mr Wallis relies on a maxim that has been described as follows:[33]
Whenever anything is authorized, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorized in express terms be also done, then that something else will be supplied by necessary intendment. But, if, when the maxim comes to be applied adversely to the liberties or interests of others, it be found that no such impossibility exists, that the power may be legally exercised without the doing that something else, or even going a step farther, that it is only in some particular instances, as opposed to its general operation, that the law fails in its intention, unless the enforcing power be supplied, then, in any such case, the soundest rules of construction point to the exclusion of the maxim, and regard the absence of the power which it would supply by implication as a casus omissus.
[33] Trolly, Draymen and Carters Union of Sydney and Suburbs v Master Carriers Association of NSW [1905] HCA 20; (1905) 2 CLR 509, 523 - 524 (O'Connor J), quoting Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727, 732 (Fleming CJ). See also Pearce D, Statutory Interpretation in Australia (9th ed, 2019) [5.31].
I will refer to this maxim as 'the Impossibility Maxim'.
Mr Wallis contends that, applying this maxim, s 230(1)(b) must be interpreted as giving the regulator the power to authorise an inspector. If this contention is correct, then the Delegation Instrument gave Mr Blucher the power to authorise an inspector to commence a prosecution and Mr Wallis was validly authorised.[34]
[34] First Respondent's Submissions [27].
Mr Wallis did not assert that the only source of the power to authorise an inspector came from s 230. He conceded that s 153 conferred such a power. It will be recalled that s 153 provides that 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. Mr Wallis submitted that both s 153 and s 230 conferred the power.[35]
[35] ts 36.
During the hearing, I asked Mr Wallis if his concession (that s 153 conferred a power to authorise an inspector) meant that he would concede that the Impossibility Maxim would not apply.[36] That is, did he concede that, if there was such a power in s 153, s 230(1)(b) did not need to be read to include such a power in order to prevent s 230(1)(b) being a 'dead letter'.
[36] ts 38.
Mr Wallis said he did not concede this. He submitted that, because the WHS Act did not expressly confer the power to authorise an inspector, there 'would be a real question' as to whether s 153 would fill the gap. He noted that the applicant submitted that s 230 did not confer the power or the function of authorising inspectors. Mr Wallis submitted that, if s 230 did not confer the power or the function of authorising inspectors, then it would follow that authorising inspectors would not be the performance of a function. Mr Wallis submitted that s 153(1) would not then apply, as it is expressly directed to powers necessary or convenient to be done for or in connection with the performance of its functions.[37]
[37] ts 38 - 40.
There are two reasons why the contended conclusion may not follow.
First, if the Impossibility Maxim required s 230 to be construed broadly to ensure that the regulator could authorise inspectors, it would not be necessary to construe s 230 as containing both the function and the power to achieve that. If s 230(1) were construed to confer the function of authorising inspectors but not the power to authorise inspectors, s 153 would supply the power.
Second, if a provision other than s 230 confers the function of authorising inspectors, the maxim would not require s 230 to be construed as also conferring the function. As long as the function is conferred somewhere, s 153 would supply the power to carry out the function.
During the hearing in this Court,[38] Mr Wallis did not accept that s 152(h) confers the function of authorising inspectors. That subsection confers the function 'to conduct and defend proceedings under this Act before a court or tribunal'. Mr Wallis submitted that 'conduct and defend' is to be distinguished from 'initiate or to commence'. He pointed out that, in this case, Mr Wallis initiated the prosecution, but the Commonwealth Director of Public Prosecutions is conducting the proceedings.
[38] ts 35. See also ts 40 - 41. These submissions amended the position that had been advanced in the written submissions - see First Respondent's Submissions [22]. In that paragraph, Mr Wallis had submitted that the function of bringing proceedings was pursuant to s 69(g) of the SRC Act and s 152(h) and s 230 of the WHS Act. (Section 69(g) of the SRC Act simply provides that the functions of Comcare include such other functions as are conferred on Comcare by any other Act.)
I accept that the distinction advanced by Mr Wallis is capable of being made. However, I also consider that the words 'to conduct … proceedings under this Act before a court or tribunal' are broad enough to include the initiation of proceedings. That said, the issue is the source of the specific function of authorising inspectors.
Plainly, the WHS Act intends to empower the regulator to authorise inspectors to commence proceedings. Despite this, it does not expressly confer the power to do so. Section 153 would supply the power if the WHS Act gave the regulator the function of authorising inspectors. There is, however, no reason why, as a matter of necessary intendment, the function would need to be found in s 230. In my view, the words in s 152(h) more naturally support a construction that it includes the function of authorising inspectors. If s 152(h) were so construed, s 153 would give the regulator the power to authorise inspectors.
Accordingly, I do not consider that the Impossibility Maxim supports a construction that s 230(1) confers the power to authorise inspectors.
The applicant's submissions
The applicant accepts that Comcare has the power to give an inspector written authorisation.[39] However, it submits that the source of the power is s 153.[40]
[39] Applicant's Outline of Submissions in Reply (Applicant's Reply) [4].
[40] Applicant's Reply [5].
The applicant submits that s 230 does not confer any powers. The applicant submits that this is supported by the terms of s 230 and the High Court's decision in Taylor v Attorney General.[41]
The terms of s 230
[41] Taylor v Attorney General [2019] HCA 30; (2019) 268 CLR 224.
The applicant notes that s 230 contains four subsections:
(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.
(3)The regulator must issue, and publish on the regulator's website, general guidelines for or in relation to:
(a)the prosecution of offences under this Act; and
(b)the acceptance of WHS undertakings under this Act.
(4)Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an offence against this Act.
The applicant draws attention to the different effect of the subsections.
The applicant submits that neither s 230(2) nor s 230(4) impose or confer a function or power on the regulator. I agree. Section 230(2) simply provides that an authority to prosecute will continue to be valid even where a charge is amended. Section 230(4) simply preserves the ability of the Director of Public Prosecutions to bring proceedings for an offence against the Act.
The applicant further submits that s 230(3) casts obligations on the regulator. Again, I agree.
In relation to s 230(1), the applicant submits:[42]
[T]he first two subparagraphs don't impose duties. There's no obligation to commence every prosecution by giving an inspector a written authorisation. It's permissive, we say, on its proper construction, and it is, as we've come to say, really, [a] machinery provision.
[42] ts 28.
I agree that there is no obligation to commence every prosecution by giving an inspector a written authorisation. However, it does not follow that s 230(1) must be construed as not conferring a function on the regulator to authorise an inspector or the power to do so.
Taylor
The applicant asserts that Taylor supports its contention that s 230 does not confer a power to authorise inspectors to commence prosecutions. It submits that it was said in Taylor, and in the earlier case of R v Judd,[43] that a similar provision did not give a new power.[44]
[43] R v Judd [1919] HCA 9; (1919) 26 CLR 168.
[44] ts 31 - 32.
I do not accept this.
In Judd, the court was construing s 6(3A) of the War Precautions Act 1914 (Cth). That section provided (words in brackets, paragraph break, and emphasis added):
[First limb] An offence against this Act shall not be prosecuted summarily without the written consent of the Attorney-General or the Minister for Defence, or a person authorized in writing by the Attorney-General or the Minister for Defence, and
[Second limb] an offence against this Act shall not be prosecuted upon indictment except in the name of the Attorney-General.
In Taylor, Kiefel CJ, Bell, Gageler and Keane JJ noted that s 6(3A) had two distinct limbs, the second of which provided that an offence 'shall not be prosecuted upon indictment except in the name of the Attorney-General'.[45] They noted that 'Gavan Duffy J in R v Judd said of the second limb of s 6(3A) that it "gives no new power to the Attorney General, but in certain cases forbids prosecution by indictment in the name of any person other than the Attorney-General"'.[46]
[45] Taylor [26].
[46] Taylor [30].
It can be seen from this that the statement as to 'no new power' was not related to the part of the provision that prohibited summary prosecutions without written consent or authorisation.
Further, at the time that s 6(3A) was enacted, the legislation then existing[47] provided that indictments should be in the name of the Attorney-General or of some person commissioned by the Governor-General. Plainly, the second limb of s 6(3A) gave no new power to the Attorney General.
Conclusion
[47] Section 69 of the Judiciary Act 1903 (Cth).
Although I have rejected these aspects of the applicant's reasoning, I accept its contention that s 230(1)(b) does not contain the power to authorise inspectors. Section 230(1)(b) is not expressed in such terms, and need not be so construed as a matter of necessary intendment.
In my view, the source of the power is s 153. This leaves open the source of the function. This leads me to Mr Wallis' alternative contention. Mr Wallis contends, in the alternative, that s 230 contains the function of authorising inspectors. He contends that, therefore, the delegation of that function necessarily carried with it the powers to perform the function, including by reference to s 153(1) of the WHS Act.[48]
Did the Delegation Instrument necessarily carry with it the power to authorise inspectors? (Issue 3)
[48] First Respondent's Submissions [31].
Section 154 of the WHS Act gives the CEO the power to delegate 'a power or function' under that Act. It follows that the CEO has the power to delegate any power or function found in s 230 of the WHS Act.
Mr Wallis contends that, even if the power to give written authorisation to an inspector is not contained within s 230(1)(b), the function is. He contends that, if that is correct, the delegation of that function necessarily carried with it the powers to perform the function, including the power under s 153(1) of the WHS Act.[49]
[49] First Respondent's Submissions [31].
In dealing with the second issue, I explained why I do not consider that the function of giving authorisation is conferred by s 230(1)(b). If it is not contained with that section, Issue 3 does not arise. However, I will deal with the issue in case I am wrong about the source of the function.
In support of his contentions, Mr Wallis' written submissions cited a statement by McHugh J in Egan v Willis (footnotes omitted):[50]
As the seminal case of Kielley makes clear, the source of the implication upon which the respondents rely is the maxim: Quando lex aliquid alicui concedit, concedere videtur id, sine quo res ipsa esse non potest. The meaning of this maxim was explained by Fleming CJ in Fenton in a passage which O'Connor J has said in this Court sets out its 'full and true import'. In the Supreme Court, Fleming CJ said that the true import of the maxim was:
'Whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment.'
[50] Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 [83].
This passage is directed to the Impossibility Maxim discussed earlier. The Impossibility Maxim applies to powers conferred by legislation. In his oral submissions in the hearing of the Review Application, Mr Wallis conceded that the maxim would not apply to a delegation instrument.[51]
[51] ts 42. See also ts 37.
Despite this, Mr Wallis maintained his alternative contention. He submitted that it was simply unnecessary for the Delegation Instrument to delegate the Section 153 Power. He submitted that within the delegation of a function is a delegation of the power to perform it. He submitted, in other words, that the delegation is a delegation of the function and implied within that grant of the function is power to perform the function. He submitted that it was therefore unnecessary to delegate the Section 153 Power.[52]
[52] ts 43.
Mr Wallis advised he had been unable to find an authority that considered whether a power to perform a function is implied in the delegation of a function in circumstances where the delegator has, but does not expressly delegate, a power such as the Section 153 Power.[53] The applicant indicated, in effect, that he was also not aware of any authority.[54]
[53] ts 44.
[54] ts 44 - 45.
Following the hearing, I drew to the parties' attention the decision in Mercantile Mutual. I advised the parties that I did so in the context of Mr Wallis' alternative contention and the parties' statements that they were not aware of any authorities which considered whether a power to perform a function is implied in the delegation of a function in circumstances where the delegator has, but does not expressly delegate, a power such as the Section 153 Power. I invited the parties to provide submissions in relation to this authority and any other authorities on this point discovered by further research.[55]
[55] Email from my associate to the parties dated 29 June 2022.
Both parties filed supplementary submissions. The parties' supplementary submissions went beyond the issue on which the parties were invited to provide further submissions, by canvassing Mercantile Mutual in the context of Mr Wallis' primary contention. While this was plainly inadvertent, I have ignored those parts of the parties' supplementary submissions. In any event, I do not consider Mercantile Mutual to be of value in relation to Mr Wallis' primary contention, due to the differences in the particular legislative provisions under consideration.
Mercantile Mutual
In Mercantile Mutual, the Full Court of the Federal Court was dealing with an application for judicial review of a decision of the second respondent, the Regional Commissioner for the State of New South Wales of the Australian Securities Commission. The decision authorised the third respondents to apply to a court for an order pursuant to s 597 of the Corporations Law in relation to the affairs of a particular business.
At the time, s 597(1) - (3) of the Corporations Law provided:
Section 597. Examination of persons concerned with corporations
(1)In this section, a reference, in relation to a corporation, to a prescribed person, is a reference to an official manager, liquidator or provisional liquidator of the corporation or to any other person authorised by the Commission to make applications under this section or to make an application under this section in relation to that corporation.
(2)Where it appears to the Commission or to a prescribed person that:
(a)a person who has taken part or been concerned in the promotion, formation, management, administration or winding up of, or has otherwise taken part or been concerned in affairs of, a corporation has been, or may have been, guilty of fraud, negligence, default, breach of trust, breach of duty or other misconduct in relation to that corporation; or
(b)a person may be capable of giving information in relation to the promotion, formation, management, administration or winding up of, or otherwise in relation to affairs of, a corporation; the Commission or prescribed person may apply to the Court for an order under this section in relation to the person.
(3)Where an application is made under subsection (2) in relation to a person, the Court may order that the person attend before the Court on a day and at a time to be fixed by the Court to be examined on oath on any matters relating to the promotion, formation, management, administration or winding up of, or otherwise relating to affairs of, the corporation concerned.
For ease of reference, I will refer to an application for an order under s 597 as an 'Examination Application'.
The Regional Commissioner's decision to authorise the third respondents to make Examination Applications was purportedly made in the exercise of powers delegated by the first respondent, the Australian Securities Commission (ASC). There were two instruments of delegation, which I will refer to as the 'first instrument' and the 'second instrument'.
The first instrument of delegation relevantly read as follows:[56]
[56] Mercantile Mutual, 426 - 427.
AUSTRALIAN SECURITIES COMMISSION
ASC LAW
DELEGATION OF POWERS AND FUNCTIONS
PURSUANT to section 102 of the ASC LAW, the AUSTRALIAN SECURITIES COMMISSION ('the Commission') HEREBY DELEGATES to each of the persons from time to time holding, occupying or performing the duties of the offices and positions mentioned in Schedule A and Schedule B (other than a person who has been suspended from or is on leave from and is during the course of such leave absent from the Commission), all of the powers and functions conferred or expressed to be conferred on the Commission by or under the following provisions:
(1)all of the powers and functions conferred or expressed to be conferred on the Commission by or under the provisions of the Corporations Law other than subparagraph 409(5)(a)(ii), subsections 65(1), 260(1), 313(6), 349(7), 733(1), 1058(9) and section 1113;
(2) …
(3) …
AND THE COMMISSION HEREBY DECLARES for the removal of doubt that this delegation does not revoke, and is not intended to be construed as revoking, any previous delegation granted by the Commission, except insofar as a previous instrument delegated functions and powers to persons suspended or on leave from the offices of positions mentioned in that instrument.
SCHEDULE A
(a)the Regional Commissioner for the State of New South Wales;
…
DATED this 21st day of March 1991.
[The Common Seal of the ASC was duly affixed]
The second instrument was, with two exceptions, relevantly in the same terms as the first.[57]
[57] Mercantile Mutual, 427.
The first difference was that the second instrument omitted reference to the words 'or expressed to be conferred' in the last two lines of the first paragraph of the instrument and from the first two lines of the paragraph numbered (1).[58]
[58] Mercantile Mutual, 427.
The second difference was that the second instrument included the following immediately after para (3):[59]
AND all the powers and functions to do whatever is incidental to the exercise and discharge of powers and functions hereby delegated, including, without limiting the generality of the foregoing, affixing the seal of the Commission.
[59] Mercantile Mutual, 427.
The applicants in Mercantile Mutual contended, among other things, that neither instrument had been effective to confer the power to make Examination Applications. This required the Full Court to determine:
1.the source of the function to authorise a person to make Examination Applications;
2.the source of the power to authorise; and
3.whether one or both of the instruments of delegation had effectively delegated the power to authorise.
Each member of the Court held that s 597 conferred the function on ASC to authorise a person to apply for an order under s 597.[60] However, each held that it was not the source of ASC's power to authorise a person: rather, the power came from s 11(4) of the then ASC Act.[61]
[60] Mercantile Mutual, 411 (Black CJ); 420, 422 - 423 (Lockhart J); 440 - 441 (Gummow J).
[61] Mercantile Mutual, 411 (Black CJ); 420, 422 - 423 (Lockhart J); 440 - 441 (Gummow J).
At that time, s 11 of the ASC Act relevantly provided:
Section 11.Functions and powers
(1)The Commission has such functions and powers as are conferred on it by or under the following:
(a)the Corporations Act 1989;
(b)the Corporations Law of the Capital Territory;
(c)this Act.
…
(2)The Commission also has the following functions:
(a)to provide such staff and support facilities to the Panel, the Disciplinary Board and the Review Board as are necessary or desirable for the performance and exercise by the Panel, the Disciplinary Board and the Review Board of their respective functions and powers;
(b)to advise the Minister about any changes to a national scheme law that, in the Commission's opinion, are needed to overcome, or would assist in overcoming, any problems that the Commission has encountered in the course of performing or exercising any of its functions and powers.
(3)The Commission may, on its own initiative or when requested by the Minister, advise the Minister, and make to the Minister such recommendations as it thinks fit, about any matter of a kind referred to in section 148.
(4)The Commission has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions.
…
(6)Subject to this Act, the Commission has the general administration of this Act.
(7)The Commission has any functions and powers that are expressed to be conferred on it by a national scheme law of another jurisdiction.
The decision as to the effectiveness of the instruments of delegation
The Full Court was divided as to whether the first instrument had been effective. Both Black CJ and Lockhart J found that the first instrument had been effective, while Gummow J disagreed.
Black CJ said it was the combination of the words 'by' and 'under' that compelled this conclusion. His Honour explained:[62]
It is clear however that in the context of the instrument of delegation the word 'under' is not mere surplusage and that the two words are not intended to cover the same field. The word 'by' being plainly apt to apply to the common situation where a section of an Act specifically confers a power, the additional words 'or under' should be read as extending the scope of the delegation beyond such a case. Those additional words would be apt to cover a power conferred by regulation made under the Corporations Law but they are probably not essential for that purpose and there is no reason to limit their application to such a case.
The express conferral of power by s 11(4) of the ASC Act is incomplete in the sense that it is an indispensable element of the conferral that there should be a function for the performance of which the power is necessary, or reasonably incidental, or with which the power is connected. It is only by the coexistence of the power and the relevant function that the power may be said to be conferred. Thus it may be concluded that the power in question is conferred by s 11(4) of the ASC Act but under the provision of the Corporations Law, in this case s 597, that confers the particular function that is essential for the conferral of the power to be complete.
A different conclusion would have been called for had either the word 'by' or the word 'under' been used alone in the instrument of delegation, but the use of both words compels, to my mind, the conclusion that the delegation should, in this respect, be construed expansively and to extend to the power to authorise persons to make applications, derived from s 11(4) of the ASC Act and s 597 of the Corporations Law working in necessary combination.
[62] Mercantile Mutual, 413.
Lockhart J also gave weight to the fact that there were two words used. His Honour considered that the use of two words suggested that 'under' meant something different to 'by'. Lockhart J's reasons were as follows:[63]
The use of the words 'by or under' in each instrument of delegation suggests that different things are meant by those two words. In my opinion it is a permissible use of language to construe the instrument as saying that the function of the ASC of authorizing persons to make applications to a court under s 597 and the power of the ASC to perform that function derived from s 11(4) of the ASC Act are 'powers and functions conferred on' the ASC 'under the provisions of the Corporations Law'. The operation of s 11(4) of the ASC Act upon s 597 of the Corporations Law is not inaptly described by the language used in the instruments of delegation. Although the source of the power to authorize stems from s 11(4) of the ASC Act, s 11(4) is an incidental power that assumes the existence of a function to which it can attach. In this case, the function is one which arises from s 597. The interaction of the two statutory provisions is sufficiently described by the language of each instrument of delegation.
[63] Mercantile Mutual, 427.
In dissent, Gummow J held that a contrary conclusion would still give each of the words 'by' and 'under' work to do. His Honour said:[64]
[T]he phrase 'by or under' used in relation to provisions of the Corporations Law, is apt to deal with the situation where the power or function in question is conferred on the Commission 'by' the provisions of the Corporations Law themselves or 'under' those provisions in the sense that the immediate source of conferral is delegated legislation. In this way, 'under' serves a purpose distinct from that which 'by' serves.
[64] Mercantile Mutual, 442.
In disagreeing with the majority, Gummow J was influenced by the word 'conferred' in the first instrument, such that the delegation was, relevantly, of powers and functions conferred … by or under the Corporations Law. His Honour said:[65]
The power [under s 11(4) of the ASC Act to authorise] itself is not conferred by s 597, although its objects include functions conferred by s 597.
Is the power conferred under s 597? It is true that the power appertains and attaches to, and is exercisable in respect of, functions conferred by s 597. In a sense, the power may be said to arise 'under', meaning 'by reason of the existence of', the function conferred by s 597; cf as to the Constitutional phrase 'matter arising under any law made by the Parliament', LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581. But that does not mean that the power in s 11(4) is 'conferred' on the ASC under s 597. Put another way, notwithstanding the interrelation between the provisions, the source of the relevant power conferred upon the ASC is s 11, not s 597; cf Glasson v Parkes Rural Distributions Pty Ltd (1983) 155 CLR 234 at 241, where the High Court was construing the phrase 'under (a Commonwealth) enactment' in s 3(1) of the ADJR Act.
The applicant's submissions on Mercantile Mutual
[65] Mercantile Mutual, 442.
The applicant's supplementary submissions did not address the relevance of Mercantile Mutual in the context in which it was raised.[66] The supplementary submissions did not address the question of whether a power to perform a function is implied in the delegation of a function in circumstances where the delegator has, but does not expressly delegate, a power such as the Section 153 Power.
[66] Applicant's Further Submissions filed 26 July 2022 [14].
In addition, most of the applicant's supplementary submissions were not limited to Mr Wallis' alternative contention. Its supplementary submissions were only relevant to the alternative contention to the extent that they contended that s 230 did not confer a function of authorising.
In so contending, the applicant sought to align s 230 with s 597(1) of the Corporations Law and distinguish it from s 597(2). It submitted that Gummow J in Mercantile Mutual, and the Court in HongkongBank of Australia Ltd v Australian Securities Commission[67] (a case cited in Mercantile Mutual) had concluded that the source of the function was not s 597(1). It submitted that Gummow J in Mercantile Mutual had held that s 597(2) was the source of the function. From this, the applicant contended that s 230 did not confer the function of authorising inspectors.
[67] HongkongBank of Australia Ltd v Australian Securities Commission (1992) 40 FCR 402.
I do not accept that s 230 is aligned with s 597(1) as distinct from s 597(2). Section 597(1) simply defines what is meant by the term 'prescribed person', used in s 597(2). It is purely definitional. Section 230(1)(b) does not define a term used elsewhere. Rather, it sets out who may commence proceedings. In my view, it is more closely aligned with s 597(2).
The effect of s 597(2) is that, where it appears to the ASC or to a prescribed person that a person has been guilty of misconduct in relation to a corporation, or the person may be able to give information, the ASC or prescribed person may apply to the Court for an order under this section in relation to the person. I refer to applications for such orders as 'Examination Applications'.
The Full Court in Mercantile Mutual construed s 597(2)[68] as conferring a function on the ASC of authorising a person to make Examination Applications (which would, by s 597(1), make a person so authorised a 'prescribed person').
[68] To some extent, the source of the function was described as being s 597, without a subsection being specified. However, in view of the decision in HongkongBank of Australia, which the Court in Mercantile Mutual did not suggest was wrong, the majority in Mercantile Mutual appear to have held that the source of the function was s 597(2). Gummow J (in dissent, but not on this point) did so expressly.
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.
Similarly, s 230(1)(b) sets out who may commence proceedings. Section 230 does not expressly confer on the regulator the function of authorising an inspector. Further, it can be discerned from s 230 that the regulator was intended to have this function.
Mr Wallis' submissions on Mercantile Mutual
Mr Wallis acknowledged that the delegation instruments in Mercantile Mutual were different to the Delegation Instrument in this case. However, he submitted that Mercantile Mutual supported his contention that the Delegation Instrument could effectively delegate the power to authorise by referring only to the 'function provision'.[69]
[69] First Respondent's Supplementary Submissions filed 28 July 2022 (First Respondent's Supplementary Submissions).
Mr Wallis noted that the majority in Mercantile Mutual found that the first instrument, which referred only to the 'function provision', nonetheless effectively delegated the power to perform the function. This finding was made even though the 'power provision' was not referred to and, indeed, appeared in a different statute from that expressly referred to in the delegation.[70]
[70] First Respondent's Supplementary Submissions [19].
Mr Wallis submitted (references omitted):[71]
That is because, the reference in this Delegation to the 'functions' and 'powers' 'of the WHS Act' is, it is submitted, intended to do the same work as the words 'by or under' used in the delegations in Mercantile Mutual.
It is submitted that, just as in Mercantile Mutual, the power has been effectively delegated by reference to functions or powers 'of' the statute, here the WHS Act. It is submitted that the Delegation uses a more direct form of words ('of the' statute) than 'by or under' as was used in the delegations in Mercantile Mutual.
That submission, it is submitted, is supported and furthered by the wording of Part 2 of Schedule 1 of the Delegation which refers at A to 'the powers and functions under the following sections of the WHS Act …' (emphasis added).
Thus, as was the case in Mercantile Mutual, the power (under s.153 of the WHS Act) assumes the existence of a function to which it can attach and that function is provided for 'under' s.230 of the WHS Act as described in Part 2 of Schedule 1 to the Delegation.
Analysis
[71] First Respondent's Supplementary Submissions [27] - [30].
Two questions arise:
1.Does s 230(1) contain a function of authorising inspectors to commence prosecutions?
2.If so, did the Delegation Instrument delegate the power to carry out that function?
Does s 230(1) contain a function of authorising inspectors?
As I explained when dealing with the second issue,[72] I consider that s 152(h) includes the function of authorising inspectors. That subsection confers the function 'to conduct and defend proceedings under this Act before a court or tribunal'. Accordingly, the function does not need to be found in s 230 in order to ensure that inspectors could be authorised.
[72] See under the heading 'Does s 230(1) confer a power to authorise an inspector to commence proceedings? (Issue 2)'.
This does not mean that s 230 could not be construed to also contain that function. However, it is unnecessary to consider this further. That is because, even if it did, I consider that the Delegation Instrument would not have delegated the power to perform that function.
Did the Delegation Instrument delegate the power?
The Full Court in Mercantile Mutual was dealing with a different legislative regime and different delegation instruments. Nevertheless, I give great weight to the analysis of each member of the Full Court.
In Mercantile Mutual, the first delegation instrument relevantly said 'all of the powers and functions conferred … on the Commission by or under the provisions of the Corporations Law [other than specified provisions]'.
In this case, the Delegation Instrument relevantly said that the CEO delegates to named people 'to perform the functions or exercise the powers of the WHS Act … which have been specified in Part 2 of that Schedule'. Part 2 relevantly states 'The powers and functions under the following sections of the WHS Act:' and lists various provisions including s 230.
Mr Wallis submits that the word 'of' is intended to do the same work as the words 'by or under' used in the delegations in Mercantile Mutual. He submits that 'of the' statute is a more direct form of words than the words 'by or under' as was used in the Mercantile Mutual delegations.
The difficulty with that submission is that the majority in Mercantile Mutual placed great weight on the fact that the first instrument used two words: 'by' and 'under'.[73] Indeed, had only one of those words been used, Black CJ would have found the instrument ineffective.[74] It was the use of two words that meant that the word 'under' could be interpreted differently and more broadly than it otherwise would have been.
[73] Mercantile Mutual, 413, 427.
[74] Mercantile Mutual, 413.9.
I earlier referred to judicial observations as to the construction of delegation instruments and the relevance of the liabilities affected.[75] In this case, the liabilities that may be affected include the liability to prosecution. Therefore, the Delegation Instrument should not be construed loosely.
[75] See under the heading 'Construction of delegation instruments'.
With that in mind, and assuming s 230 does contain the function of authorising inspectors, is the power to authorise (sourced in s 153) a power 'of' s 230? Is it a power 'under' s 230?
As Gummow J identified in Mercantile Mutual, in one sense, it can be said that the answer to each question is 'yes'. The Section 153 Power may be said to be 'of', or arise 'under', s 230 in the sense that the power arises because there is a function to authorise. However, I would not construe the Delegation Instrument as using the words in that way. In my view, the plain words of the instrument do not suggest that either question should be answered positively. Rather, I consider that the plain words suggest that the Delegation Instrument delegates those functions and powers contained within the sections listed, but not powers given by unlisted sections to perform functions contained in the specified sections.
As the liabilities that may be affected by the Delegation Instrument include the liability to prosecution, I would not construe it more broadly than the plain words suggest.
For these reasons, I consider that the Delegation Instrument did not delegate the power to authorise inspectors.
Relief
I have concluded that Mr Blucher's authorisation was not a 'written authorisation of the regulator'. Mr Wallis did not dispute that, if I reached that conclusion, the applicant was entitled to the relief it claims.
As Mr Blucher's authorisation was not a 'written authorisation of the regulator', Mr Wallis did not have the power to commence the prosecution. The Magistrates Court therefore did not have jurisdiction to deal with the prosecution,[76] and the magistrate should have upheld the Dismissal Application. The error was the type of error that would have justified an order of certiorari.
[76] See, by way of analogy, A v Maughan [20] and [135] (Martin CJ), [152] (McLure P) and [167] (Corboy J), Brockway v Kirk [2019] WASC 8, [29] - [46] (Strk J) and Director of Public Prosecutions (Cth) v Haddad [2019] NSWCA 55; (2019) 367 ALR 269, 272 [12] - [13] (Bell P, White and Brereton JJA).
In these circumstances, it is appropriate to quash the proceedings.[77]
[77] See A v Maughan [20] and [135] (Martin CJ), [152] (McLure P) and [167] (Corboy J).
I will hear from the parties as to the appropriate form of the orders and as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Associate to the Honourable Justice Archer
3 NOVEMBER 2022
2
17
0