RSA Express Pty Ltd v Guilfoyle - [2020] FCA 1157

FEDERAL COURT OF AUSTRALIA
RSA Express Pty Ltd v Guilfoyle [2020] FCA 1157

File number: QUD 401 of 2019

Judgment of: GREENWOOD J

Date of judgment: 12 August 2020

Catchwords: CONSTITUTIONAL LAW – consideration of an application to dismiss paragraphs of an amended Statement of Claim which seek to plead relief based upon facts said to give rise to a claim of invalidity arising by operation of s 109 of the Constitution – consideration of a claim said to arise under s 117 of the Constitution – consideration of a claim said to arise under s 46(1)(a) of the Competition and Consumer Act 2010 (Cth)

Legislation:
Competition and Consumer Act 2010 (Cth), ss 2B, 46(1)(a), 80, 82

Competition Policy Reform (Queensland) Act 1996 (Qld), ss 3‑6, 8, 10, 13, 14

National Vocational Education and Training Regulator Act 2011 (Cth), ss 3‑6, 9, 11, 21‑29, 32‑34, 43, 44, 47, 48, 55, 56

Commonwealth Constitution, ss 51(i), (xix), (xx), (xxxvii); 92, 109, 117

National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 (Cth)

National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 (Cth)

Vocational Education and Training (Commonwealth Powers) Act 2012 (Qld)

Work Health and Safety Act 2011 (Qld), ss 3, 152‑154, 230‑267, 276; Schedule 2, ss 25‑27, 44, 48; Schedule 5, s 4

Work Health and Safety Act and Other Legislation Amendment Act 2017 (Qld)

Work Health and Safety Regulation 2011 (Qld), ss 289, 291, 298, 299, 316‑327; Schedule 19, s 5

Communiqués arising out of meetings of the Council of Australian Governments: 7 December 2009 (Brisbane); 13 February 2011 (Canberra); and 19 August 2011 (Canberra)

CPCCWHS1001 Prepare to Work Safely in the Construction Industry

Cases cited:
Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237

APLA Limited v Legal Services Commissioner (NSW) (2005) 224 CLR 322

Henry v Boehm (1973) 128 CLR 482

Momcilovic v The Queen (2011) 245 CLR 1

New South Wales v The Commonwealth and Carlton (1983) 151 CLR 302

Street v Queensland Bar Association (1989) 168 CLR 461

Victoria v Commonwealth (1937) 58 CLR 618

Work Health Authority v Outback Ballooning Pty Ltd (2019) 93 ALJR 212

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 151

Date of last submission/s: 12 November 2019

Date of hearing: 12 November 2019

Counsel for the Applicant: D A Savage QC and S R Grant

Solicitor for the Applicant: Priority Business Lawyers

Counsel for the Respondents: S J Keim SC and K Blore

Solicitor for the Respondents: Crown Law

ORDERS

QUD 401 of 2019

BETWEEN:
RSA EXPRESS PTY LTD

Applicant

AND:
AARON GUILFOYLE, WORK HEALTH AND SAFETY PROSECUTOR

First Respondent

STATE OF QUEENSLAND

Second Respondent

ORDER MADE BY:

GREENWOOD J

DATE OF ORDER:

12 AUGUST 2020

THE COURT ORDERS THAT:
1.Paragraphs 8(a) and 17‑29 of the Amended Statement of Claim filed on 1 October 2019 are struck out.
2.The applicant in the principal proceeding is given leave to file a Further Amended Statement of Claim (if any) within 21 days.
3.The proceedings as against the first respondent, Aaron Guilfoyle, Work Health and Safety Prosecutor, is dismissed.
4.The applicant in the principal proceeding pay the costs of the first and second respondents in the principal proceeding of and incidental to the interlocutory application of the respondents to the principal proceeding filed on 17 October 2019.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
GREENWOOD J:

These proceedings are concerned with an interlocutory application by the respondents to the principal proceeding for orders that the first respondent be removed as a party to the proceeding; that particular paragraphs of the applicant’s amended statement of claim be struck out with leave to re‑plead; that particular paragraphs be struck out without leave to re-plead; and that particular paragraphs of the foreshadowed amended originating application be refused leave or be dismissed.
I will address the content of each order in the course of these reasons.
There are three principal causes of action addressed by the amended statement of claim under challenge in this application. The contention of the respondents is that on the assumption that the material facts pleaded by the applicant are made good at trial, those facts do not reveal a cause of action in respect of any of the three challenged causes of action as pleaded.
The three claims are these.
First, the applicant says that steps taken by a person holding the office or position of the Work Health and Safety “regulator” (by operation of Part 1 of Schedule 2 to the Work Health and Safety Act 2011 (Qld) (the “WHS Act”)) (the “WHS regulator”), said to be acting at all times on behalf of the State of Queensland (the “State”), on 14 December 2018 to amend an agreement made between the WHS regulator and the applicant in September 2017, taken together with a further amendment made on 8 August 2019, together with the terms of s 325 of the Work Health and Safety Regulation 2011 (Qld) (the “WHS Reg”) made pursuant to the WHS Act, are inconsistent with “the approval under” the National Vocational Education and Training Regulator Act 2011 (Cth) (the “NVETR Act” or alternatively the “Act”), and to the extent of the inconsistency, the steps are said to be invalid by operation of s 109 of the Commonwealth Constitution (the “Constitution”). The amendment made on 14 December 2018 is said to have commenced on 1 March 2019. The way in which the matter is framed in the pleading is not the way the contention was put in oral argument. I will return to that matter later in these reasons.
Second, the applicant pleads that the steps so taken discriminate against “any Australian citizen not resident in Queensland on the basis that an individual resident outside Queensland is precluded by [the two amendments described above] from obtaining training in [a particular course]” and the issue of a document described as a “general construction induction training card” (s 319 of the WHS Reg), described in the construction industry and by administrators as a “white card”, in contravention of the protection afforded under s 117 of the Constitution.
Third, the applicant pleads that the conduct of the WHS regulator in making the two amendments to the September 2017 agreement on behalf of the State was the expression of the exercise of the WHS regulator’s substantial power in six pleaded markets which “has lessened or will substantially lessen competition” in each market in the way pleaded, in contravention of s 46(1)(a) of the Competition and Consumer Act 2010 (Cth) (the “CCA”).
The applicant also pleads that the amendment of 14 December 2018 which commenced on 1 March 2019 discriminates in interstate trade in the provision of white cards under the agreement of September 2017, in protection of businesses conducted in Queensland offering white cards, in contravention of s 92 of the Constitution. The respondents make a number of criticisms of the way in which that cause of action is pleaded by reference to para 13 of the amended statement of claim. However, para 13, in the context of the pleading of the claim based upon the contended contravention of s 92, is one of the paragraphs the respondents seek to strike out but with leave granted to re‑plead the relevant matters.
There are a number of other criticisms made of particular paragraphs of the amended statement of claim and I will address those matters having addressed the principal grounds of challenge to the causes of action mentioned above.
Before turning to those matters, and the particular capacities of the parties, it is necessary to set out the background which led to the co‑operative arrangements between jurisdictions which led to the enactment of the NVETR Act and the relationship between that Act and the capacity of jurisdictions to take statutory or executive steps which engage or intersect with the regime established under the Commonwealth Act. It has been necessary for the Court to identify the various COAG resolutions relating to these matters, the Intergovernmental Agreement, and the precise content of the implementation arrangements concerning the cooperative scheme between the Commonwealth and the States and Territories affecting the questions in issue in this proceeding.
The steps taken by the Council of Australian Governments (COAG)
At the meeting of COAG on 2 July 2009, COAG agreed to a work plan for reforms “to the Vocational Education and Training system”. COAG agreed to address a number of major reforms including developing models for a national regulatory body for vocational education and training with a view to increasing the level of investment in nationally accredited training and ensuring that the training system, and the products of the training system, are responsive to the needs of individuals, businesses and industry.
Those matters were again taken up at the COAG meeting on 7 December 2009. At that meeting, COAG agreed to establish a national vocational education and training (VET) regulator “to drive better quality standards and regulation and to strengthen Australia’s international education sector”. The regulator would be responsible for the “registration and audit” of “registered training providers” and the “accreditation of courses” in the sector. The regulator would be established under Commonwealth legislation. A national standards council would be established to provide advice to the Ministerial Council for Tertiary Education and Employment on national standards for regulation including registration, quality assurance, performance monitoring, reporting, risk, audit, review and renewal of providers and accreditation of “VET qualifications”: COAG Communiqué, 7 December 2009.
The Communiqué recognises that Victoria and Western Australia would continue to regulate providers of training in the sector in their states but would enact legislation to mirror the Commonwealth legislation.
The Communiqué also recognizes that all providers wishing to operate in more than one jurisdiction would be registered through the national regulator. The framework for establishing the new regulator would be negotiated through an agreement between all governments resulting in, it was hoped, an Intergovernmental Agreement. The regulator was to be operational from 2011. These aspirational matters would of course be subject to the terms of the Intergovernmental Agreement and the detailed implementation through the relevant statutory arrangements.
These matters were again taken up by COAG extensively in its meeting of 13 February 2011. The Communiqué says that “in recognition of the importance of skills and workforce development, COAG (with the exception of Victoria and Western Australia) agreed in principle to the Intergovernmental Agreement (IGA) for Regulatory Reform of Vocational Education and Training (VET) with sign‑off by the end of February 2011”. The Communiqué observes that the IGA will establish a national VET regulator “to drive better quality standards and regulation across the Australian VET sector”.
The Implementation Arrangements
The implementation of the in principle Intergovernmental Agreement was effected by three pieces of legislation: the NVETR Act; the National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 (Cth) (the “Transitional Act”); and the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 (Cth). Particular provisions of the NVETR Act commenced on 12 April 2011 and others on 1 July 2011. Relevantly for present purposes, all provisions of the legislation had commenced by 1 July 2011.
By Part 7, Division 1 of the NVETR Act, the National Vocational Education and Training Regulator (the “National VET Regulator” or “NVETR”) is established. The functions are set out at s 157. There are 16 express functions, such other functions as are conferred by the mechanism identified, and any function incidental to those functions. I will return to the provisions of that Act later in these reasons. The National VET Regulator established by the Act is known as the Australian Skills Quality Authority (“ASQA”). ASQA commenced operations on 1 July 2011 in New South Wales, the Australian Capital Territory and the Northern Territory.
The constitutional foundation for the Commonwealth legislation is a combination of those powers conferred on the Commonwealth Parliament under s 51 of the Constitution to make laws with respect to the subject matter recited at s 51(i), (xix) and (xx); those matters referred to the Parliament of the Commonwealth by the Parliament of any State or States (s 51(xxxvii)); and s 122 (concerning government of the territories): s 4 of the Act. Section 5 of the NVETR Act defines the meaning of the term referring State. A State is a referring State if, for the purposes of s 51(xxxvii) of the Constitution, the parliament of the State has referred the matters “covered by” subsections (3) and (5) to the Commonwealth Parliament, or the State has adopted the relevant version of the NVETR Act (and the Transitional Act) and has referred “the matter” covered by subsection (5) to the Commonwealth Parliament: s 5(1). Subsection (3) covers the matters to which the referred provisions relate, to the extent of laws with respect to those matters, by including the referred provisions in the relevant version of the NVETR Act (and the Transitional Act). Subsection (5) covers the “referred VET matters” to the extent of the making of laws with respect to those matters by making express amendments to the NVETR Act or the Transitional Act. Section 6 defines the meaning of “referred VET matters”. Those matters include: the registration and regulation of vocational education and training organizations; the accreditation or other recognition of vocational education and training courses or programs; and the issue and cancellation of vocational education and training qualifications and statements of attainment: s 6(1).
The States of New South Wales, Queensland, South Australia and Tasmania have referred particular matters to the Commonwealth Parliament. They have done so by a text-based referral by enacting laws adopting the text of the national VET legislation, and referring powers to the extent necessary to render each provision a valid law of the Commonwealth extending to that State and referring the power to make continuing amendments to the adopted text. Neither Victoria nor Western Australia has referred power in relation to the relevant matters to the Commonwealth Parliament.
In the case of the Queensland referral legislation, the Vocational Education and Training (Commonwealth Powers) Act 2012 (Qld) (the “VET Powers Act (Q)”), provides that the national VET legislation (defined to mean the NVETR Act and the Transitional Act) is “adopted”, “within the meaning of s 51(xxxvii) of the Commonwealth Constitution”(that is, a text based referral) to the extent that the matters in the national VET legislation are within the legislative powers of the parliament of the State (s 5(1)), and each “continuing VET matter” is referred to the Commonwealth Parliament, “but only to the extent of the making of laws with respect to the matter by making express amendments to the national VET legislation”: s 5(2). Section 5(4) provides that the reference of a matter under s 5(2) has effect only if, and to the extent that, the matter is not included in the legislative powers of the parliament of the Commonwealth (otherwise than by reference for the purposes of s 51(xxxvii)). Section 4 identifies each of the “matters” which are a “continuing VET matter” to the extent falling within the legislative powers of the State Parliament. They include: the registration and regulation of vocational education and training organizations; the accreditation or other recognition of vocational education and training courses or programs; the issue and cancellation of vocational education and training qualifications or statements of attainment; and the standards to be complied with by a vocational education and training regulator.
The objects of the NVETR Act are: to provide for national consistency in the regulation of vocational education and training (VET); to regulate VET using a standards‑based quality framework and risk assessments where appropriate; to protect and enhance quality, flexibility and innovation in VET and Australia’s reputation for VET nationally and internationally; to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia’s social and economic needs for a highly educated and skilled population; to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and to facilitate access to accurate information relating to the quality of VET.
The text of the NVETR Act as adopted for the purposes of s 51(xxxvii) and the subject of the reference under s 5(2) as to future amendments to the national VET legislation addresses three topics that should be noted. The first concerns applications to the NVETR for registration of a person as “an NVR registered training organisation”. The second concerns applications for the accreditation of a “course” as a “VET accredited course”. The third concerns the power of the NVETR to issue a “VET qualification” and a “VET statement of attainment”.
As to the first matter, s 16 provides that a person may apply to the NVETR for registration, including renewal of registration, as an NVR registered training organisation (an NVR “RTO”). In deciding whether to grant such an application, the NVETR must consider the matters at s 17 including the applicable conditions set out under Subdivision B of Division 1 of Part 2 of the NVETR Act. Subdivision B sets out the conditions of registration which must be complied with: s 21. The conditions are set out at ss 22‑28. Additional conditions may be imposed under s 29. The conditions include compliance with “Standards” for RTOs, the “Quality Standards”, and the “Australian Qualifications Framework”. Detailed requirements are provided for concerning these compliance obligations together with provisions concerning administrative sanctions for non‑compliance.
If the NVETR grants the application, the applicant must be notified in writing of the applicant’s “scope of registration”, period of registration and any conditions imposed under s 29(1): s 18. The term “scope of registration” in relation to an NVR RTO means “the things that an organisation is registered to do”: s 3. The definition provides that the scope of registration will allow the RTO to:
(a) both:
(i)provide training and assessments resulting in the issue of “VET qualifications” or “VET statements of attainment” by the organisation; and
(ii)provide assessments resulting in the issue of VET qualifications or VET statements of attainment by the organisation; or
(b)provide assessments resulting in the issue of VET qualifications or VET statements of attainment by the organisation.
The term “VET qualification” means “a testamur, relating to a VET course, given to a person confirming that the person has achieved learning outcomes and competencies that satisfy the requirements of a qualification”: s 3. The term “VET statement of attainment” is defined to mean “in relation to units of competency or modules of a VET course … a statement given to a person confirming that the person has satisfied the requirements of units of competency or modules specified in the statement”: s 3. The term “VET course” means one of three things: the units of competency of a training package that is endorsed by the Ministerial Council; the modules of a VET accredited course; or the modules of a course accredited by a VET Regulator of a non‑referring State: s 3. An RTO’s scope of registration may be the subject of an application for variation so as to enable a VET course, not presently within the scope of the RTO’s registration, to be offered having regard to ss 32‑34.

Part 3 of the Act deals with the accreditation of courses. Section 43 provides that a person may apply to the NVETR for the accreditation of a course as a VET accredited course. A “course” is defined by s 3 to mean a course of vocational education and training. The term “VET accredited course” means, if the NVETR has delegated to a body the function of accrediting a course, a course accredited by that body, or in any other case, a course accredited by the NVETR. Section 44 provides that in deciding whether to grant such an application the NVETR must consider whether the course meets the relevant “Standards” and the “Australian Qualifications Framework”: s 44(2). A person must comply with any conditions imposed on the accreditation of a VET accredited course: ss 47 and 48. The NVETR may at any time amend an accredited course if thought necessary to do so or cancel an accredited course.
Part 4 addresses the topic of the NVETR’s power to issue and cancel VET qualifications. Section 55 provides that the NVETR may issue a VET qualification to a person who is a current or former VET student if the Regulator is satisfied, on reasonable grounds, that the person has successfully completed the requirements of the qualification: s 55(1). The NVETR may issue a VET statement of attainment to a person in relation to units of competency or modules of a VET course if the Regulator is satisfied, on reasonable grounds, that the person has successfully completed the requirements of the units of competency or modules of the VET course: s 55(2). The NVETR may only issue a VET qualification or VET statement of attainment in relation to an NVR RTO “in exceptional circumstances”: s 55(3). Two examples of those circumstances seem to be contained in s 55(4) and (5), which recognise that the NVETR may issue a VET qualification or VET statement of attainment in relation to a former RTO at any time or in relation to a time when an organisation was not an NVR RTO. The section seems to recognise that in non-exceptional circumstances a VET qualification or VET statement of attainment will be issued by an NVR RTO. As to the terms “VET qualification”, “VET statement of attainment” and “VET course” see [25] of these reasons.
Section 56 provides that the NVETR may cancel a VET qualification or VET statement of attainment issued to a person by an NVR RTO or former RTO if the Regulator is satisfied on reasonable grounds of the matters recited at s 56(1).
The applicant in the principal proceeding, RSA Express Pty Ltd (RSA), is an NVR registered training organisation (RTO). It trades under the name “Express Online Training”, providing online training services. RSA is approved under the NVETR Act to provide training in the competencies for a course described as “CPCCWHS1001 Prepare to work safely in the construction industry”: para 1, amended statement of claim (“ASOC”) (the “Course”).
As to that course, the following matters should be noted based on a document described as “Release: 1” for the course (the “Release”). The course is described by the Release accessed on 21 July 2020 as a “unit of competency” which specifies the mandatory work health and safety training required prior to undertaking construction work. The unit requires the person to demonstrate personal awareness and knowledge of health and safety legislative requirements in order to work safely and prevent injury or harm to self and others. It covers identifying, and orally reporting, common construction hazards, understanding basic risk control measures, and identifying procedures for responding to potential incidents and emergencies. It also covers correctly selecting and fitting common personal protective equipment (PPE) used for construction work. The Release recites that the unit meets the “general construction induction training requirements” of “Part 1.1 Definitions and Part 6.5 of the Model Work Health and Safety Regulations” and particular divisions of Occupational Health and Safety Regulations applicable in Western Australia and Victoria.
The Release recites that “it is expected that site‑specific induction training will be conducted prior to conducting construction work”. The Release also recites that “licencing, legislative, regulatory or certification requirements apply to this unit” and “relevant work health and safety state and territory regulatory authorities should be consulted to confirm jurisdictional requirements”. The “Unit Sector” is described in the Release as “Construction”. The course consists of four broad elements with fourteen, in all, subtopics. Element 1 is concerned with the topic of: “Identify health and safety legislative requirements of construction work”. Element 1.1 refers to: “Basic roles, responsibilities and rights of duty holders are identified and explained according to jurisdictional health and safety legislative requirements” [original emphasis in the Release]. Element 1.3 is concerned with identifying and explaining construction safe work practices. Element 2 is concerned with identifying construction hazards and risk control measures. Element 3 is concerned with identifying health and safety communication and reporting processes. This element also addresses identifying health and safety documents, the roles of designated health and safety personnel and the procedures for reporting hazards, incidents and injuries. Element 4 is concerned with identifying incident and emergency response procedures. The Release refers to the “Foundation Skills” essential to performance in this unit of competency and the “Range of Conditions” that may affect performance. As to that matter, the Release says this:
Range of Conditions
This section specifies work environments and conditions that may affect performance. Essential operating conditions that may be present (depending on the work situation, needs of the candidate, accessibility of the item, and local industry and regional contexts) are included. Bold italicised wording, if used in the performance criteria, is detailed below.
Jurisdictional health and safety requirements must include at least one of the following state and territory Acts or their equivalent:
· Australian Capital Territory: Work Health and Safety Act 2011
· New South Wales: Work Health and Safety Act 2011
· Northern Territory: Work Health and Safety (National Uniform Legislation) Act 2011
· Queensland: Work Health and Safety Act 2011
·        South Australia: Work Health and Safety Act 2012
·        Tasmania: Work Health and Safety Act 2012
· Victoria: Occupational Health and Safety Act 2004
·        Western Australia: Occupational Safety and Health Act 1984
[original emphasis]
As to Queensland and the Work Health and Safety Act 2011 (Qld) (the “WHS Act”), the background is this. In July 2008, the COAG participants entered into the Intergovernmental Agreement for Regulatory and Operational Reform in OHS. By that agreement, the jurisdictions agreed to work together to develop and implement model work health and safety laws and to ensure that the harmonized work health and safety laws remained consistent over time by requiring any future changes affecting the operation of the laws to be referred to the Workplace Relations Ministers’ Council (“WRMC”) for decision at a national level. The national review of model laws was completed in January 2009 resulting in two comprehensive reports being submitted to the WRMC. The reports made recommendations on the proposed content of a national model work health and safety Act. An exposure draft was released in September 2009. Commonwealth, state and territory jurisdictions agreed to enact a model Act and national model Regulations by the end of December 2011. The Queensland WHS Act adopted the recommended model Act together with the model Regulations. The Act addresses a number of changes to other industry-specific legislation so as to achieve harmonization and consistency with the national model Act. Thus the WHS Act gives effect to the national model WHS Act to ensure that the Queensland legislation embraces the harmonized model as endorsed by COAG and is consistent with the legislation in other jurisdictions.
Section 3 of the WHS Act recites that the main object of the Act is to provide for a balanced and nationally consistent framework to ensure the health and safety of workers and workplaces by reference to a number of objectives including protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimization of risks arising from work; promoting the provision of advice, information, education and training in relation to work health and safety; providing a framework for continuous improvement and progressively higher standards of work health and safety; and by recognizing that regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or other particular types of substances or plant as is reasonably practicable: s 3(1) and (2).
The Regulation‑making power under the WHS Act is contained in s 276 of the Act in relation to any matter stated in Schedule 3. The Model Regulation, Work Health and Safety Regulation 2011 (Qld) (the “WHS Reg 2011”) was enacted pursuant to that power. Chapter 6 of that Regulation addresses the topic of “Construction Work”.
Before examining aspects of the WHS Act and the WHS Reg 2011 relevant to the pleading and the questions in issue in the present application, it is necessary to return to the NVETR Act to identify the way in which that Act seeks to address the extent to which a law of a State or Territory either does, or does not, apply in relation to particular matters. Section 9 of that Act addresses the topic of: “Immunity from State and Territory laws”. Section 9(1) provides that an NVR registered training organisation operating in a State or Territory “is not subject to a law of the State or Territory relating to” the following matters, subject to subsections (2) and (3):
(a) the registration and regulation of vocational education and training organisations; or
(b) the accreditation or other recognition of vocational education and training courses or programs; or
(c) the issue and cancellation of vocational education and training qualifications or statements of attainment; or
(d) the collection, publication, provision and sharing of information about vocational education and training; or
(e) investigative powers, sanctions and enforcement in relation to any of the above.
Section 9(2) addresses the topic of: “Extent organisation remains subject to those laws”. Section 9(2) provides that the NVR RTO “is subject” to “that law” of a State or Territory (that is, a law of the State or Territory relating to one of the five topics set out at s 9(1)) to the extent to which that law relates to any one of six matters including the following matters: “(d) the qualifications or other requirements to undertake or carry out any business, occupation or other work (other than that of a vocational education and training organisation)”. Section 9(3) provides that an NVR RTO is subject to a law relating to one of the five matters in s 9(1) if that law applies whether or not a person is a training organisation, or the law is specified in regulations made for the purposes of s 9(3) and as agreed by the Ministerial Council.
Accordingly, s 9(1) identifies the scope of the immunity an NVR RTO operating in a State or Territory enjoys from a law of that State or Territory; s 9(2) qualifies the scope of that immunity such that an NVR RTO is not immune from such a law that relates to any one of the matters in s 9(1) to the extent that the law relates to the requirements or qualifications of an NVR RTO to undertake or carry out any business, any occupation or any other work not being that of a vocational education and training organisation; and s 9(3) is engaged as earlier described.
Section 11 of the NVETR Act addresses the topic of: “Addressing inconsistency between Commonwealth and State and Territory laws”.
Section 11(1) provides that s 11 has effect despite anything else in the Act or the TransitionalAct.
Section 11(2) provides that the section applies to the interaction between a provision (called the “displacement provision”) of a law of a referring State or a Territory and a provision (the “Commonwealth provision”) of the NVETR Act (or the Transitional Act) only if the displacement provision is declared by a law of the State or Territory to be a “VET legislation displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision)”.
If s 11 applies having regard to s 11(1) and (2), the Commonwealth provision does not prohibit the doing of an act, or impose a liability for doing an act, if the displacement provision specifically permits, authorizes or requires the doing of that act: s 11(3).
Section 11(4) provides that the Commonwealth provision does not operate in, or in relation to, the State or Territory to the extent necessary to ensure that no inconsistency arises between the Commonwealth provision and the displacement provision, to the extent to which the displacement provision would, apart from this subsection, be inconsistent with the Commonwealth provision.
Section 11(5) provides that subsections (3) and (4) do not apply in relation to the displacement provision to the extent to which the Regulations provide that those subsections do not so apply.
Section 11 recognizes that a referring State or Territory might enact a provision of a law that, according to its terms (and declared to be a displacement provision) displaces the operation of a provision of the NVETR Act or the Transitional Act, in which event prohibitions or liabilities arising under those Commonwealth Acts are not engaged if the displacement provision permits, authorizes or requires the doing of the relevant act, and thus, to avoid an inconsistency, the Commonwealth provision does not operate.
It is necessary to note further aspects of the WHS Act and the WHS Regulation 2011. Sections 152 and 153 of the WHS Act provide for the functions and powers of the “regulator”. Those functions and powers are cast in broad terms. The functions include advising the Minister on the operation and effectiveness of the WHS Act, monitoring enforcement and compliance, and providing and supporting education and training on matters relating to work health and safety. Part 1 of Schedule 2 provides for the appointment of the regulator.
Part 13 of the WHS Act addresses the topic of: “Legal proceedings” (ss 230‑267). Section 230(1) provides that subject to s 230(4), proceedings for an offence against the WHS Act may only be taken by the WHS prosecutor, or in respect of particular offences, by an inspector with the written authorization of the WHS prosecutor. Schedule 2 provides for the establishment of the WHS prosecutor. The WHS prosecutor represents the State and has the status, privileges and immunities of the State: Schedule 2, ss 25‑26. The functions of the WHS prosecutor, under Schedule 2, s 27 are these.
(a) to conduct and defend proceedings under this Act before a court or tribunal; and
(b) to advise the regulator on matters relating to this Act; and
(c)any other function given to the WHS prosecutor under this or another Act.
The powers are those powers conferred under the Act: see Part 13, for example s 230 and s 260. The appointment of the WHS prosecutor, term, conditions and related matters are provided for by Schedule 2, ss 31‑40. Schedule 2, s 41 provides for the establishment and functions of the “Office of the WHS Prosecutor” which is under the control of the WHS prosecutor: Schedule 2, s 44. The regulator has a duty to disclose particular information to the WHS prosecutor relevant to proceedings. The WHS prosecutor must issue guidelines under Schedule 2, s 48.
As to the model WHS Reg 2011 (Qld) (hereafter referred to as the “Regulation” or the “WHS Reg 2011”), the following aspects of the Regulation should be noted. As earlier mentioned, Chapter 6 addresses the topic of “construction work” which under s 289(1) and (2) is broadly defined. It is not necessary to identify all of those matters in these reasons. Section 291 addresses the meaning of “high risk construction work”. Part 6.3 sets out the duties of persons conducting a business or undertaking carrying out construction work and high risk construction work. Sections 298 and 299 address the security of the workplace and the need for a safe work method statement for high risk construction work. Many other aspects of construction work and the risks of such work are addressed in detail in Parts 6.3 and 6.4.
Part 6.5 addresses the topic of: “General construction induction training” (ss 316‑327). Part 6.5 is the Part of the model WHS regulation referred to in the document outlining the elements of the “unit of competency” noted at [29]‑[31] of these reasons in describing the relevant “course” for the purposes of this application.
Section 316 provides that a person conducting a business or undertaking must ensure that general construction induction training is provided to a worker engaged by the person who is to carry out construction work, if the worker has not successfully completed general construction induction training; or successfully completed such training more than two years previously and has not carried out construction work in the preceding two years.
Section 317 provides that a person conducting a business or undertaking must not direct or allow a worker to carry out construction work unless the worker has successfully completed general construction induction training and, if the training was completed more than two years previously, the worker has carried out construction work in the previous two years. Section 317 also requires a person conducting the relevant undertaking to ensure that the worker holds a “general construction induction training card” or if the card has been applied for but has not yet issued, ensure that the worker holds a “general construction induction training certification” issued within the preceding sixty days.
The term “general construction induction training” means “training delivered in Australia by an RTO for the specified VET course for general construction induction training”: the Regulation, s 5, Schedule 19. An “RTO” means “a training organisation listed as a registered training organisation on the National Register under the [NVETR Act]”: Schedule 19. I note that at January 2020, 3,683 RTOs were listed on the National Register established under the NVETR Act. The term “specified VET course” is defined to mean a range of courses concerning specified aspects of work such as, for example, “asbestos removal”. The term includes a course entitled Work Safety in the Construction Industry or a “corresponding” subsequent VET accredited course (such as CDCCWHS1001): see [29]‑[31] of these reasons; Regulation, Schedule 19.
The term “general construction induction training card” (“card” or “white card”) means:
(a) for part 6.5, division 2, a general construction induction training card issued under that division; or
(b)otherwise – a general construction induction training card issued –
(i)under a corresponding WHS law; or
(ii)by an RTO under an agreement between the regulator and an RTO or a corresponding regulator and an RTO.
Accordingly, an RTO, as defined, might enter into an agreement with the regulator, or enter into an agreement with a “corresponding regulator” enabling, in either case, the RTO to issue a card. The power of the regulator to enter into such agreements is set out in s 325, mentioned later in these reasons. The term “corresponding regulator” means “the holder of a public office, or a public authority, of the Commonwealth, or of a State, who or which is responsible for administering a corresponding law”: s 4, Schedule 5, WHS Act.

Division 2 of Part 6.5 addresses the topic of: “General construction induction training cards”. Section 319 of Division 2 is in these terms:
319     Issue of card
(1)A person who has successfully completed general construction induction training in Queensland may apply to the regulator for a general construction induction training card.
(2)The application must be made in the way and in the form approved by the regulator.
(3)The application must include the following –
(a)the applicant’s name and any evidence of identity required by the regulator;
(b)either –
(i)a general construction induction training certification issued to the applicant; or
(ii)a written declaration by the person who provided the general construction induction training on behalf of the relevant RTO that the applicant has successfully completed general construction induction training;
(c)       be accompanied by the relevant fee.
(4)       The application must be made –
(a)within 60 days after the issue of the general construction induction training certification; or
(b)if the application is accompanied by a declaration mentioned in subsection (3)(b)(ii), at any time after completion of the general construction induction training.
(5)The regulator must issue a general construction induction training card to the applicant if –
(a)the application has been made under this section; and
(b)the regulator is satisfied that the applicant has successfully completed general construction induction training.
(6)The regulator must make a decision on the application as soon as practicable.
(7)If the regulator has not decided on the application within 60 days, the applicant is taken to hold a general construction induction training card until a decision is made.
[emphasis added]
Section 321 is concerned with applications to the regulator for the issue of replacement cards which have been lost, stolen or destroyed. Section 322 provides that the regulator may refuse to issue a card or a replacement card if the applicant has given false or misleading information concerning a material particular or has failed to provide the required information or has produced a certification obtained on the basis of false or misleading information.
Section 325(1) confers power on the regulator to enter into an agreement with an RTO, as defined, “that empowers the RTO to exercise the functions and powers of the regulator under ss 319, 321 and 322, with any necessary alterations”.
Subsections (2), (3) and (4) are in these terms:
325 RTO may enter agreement to issue cards
…
(2)If an RTO with whom the regulator has entered an agreement under this section exercises functions and powers of the regulator in accordance with the agreement, the exercise of those functions and powers has the same effect as if they had been exercised by the regulator.
(3)Without limiting subsection (2) –
(a)a decision of an RTO in exercising a function or power of the regulator in accordance with the agreement is taken to be a decision of the regulator; and
(b)a general construction induction training card issued by the RTO is taken to have been issued by the regulator.
(4)Nothing in an agreement under this section prevents the regulator from exercising its functions and powers under this division.
The amended statement of claim (“ASOC”)
Having regard to those matters, it is now necessary to examine the elements of the ASOC under challenge. References in the ASOC to the Prepare to work safely in the construction industry course are references to the “Course”: see [29] of these reasons.
The applicant is RSA. The first respondent is Aaron Guilfoyle, the WHS prosecutor. The second respondent is the State of Queensland. The first respondent is joined on the footing that he is the WHS prosecutor appointed under Schedule 2, s 31 of the WHS Act. The ASOC does not otherwise, however, engage with the role, functions or powers of the WHS prosecutor.
By para 3, the WHS regulator, as the representative of the State, entered into agreements with RTOs pursuant to s 325 of the WHS Reg 2011. In September 2017, RSA and the regulator exercising the power under s 325 entered into an agreement (the “2017 Agreement”) by which the applicant as RTO was authorised:
(a)to provide training of individuals seeking construction induction training by way of the course, assessment and the issue of a white card under s 319 of the Regulation;
(b)to issue a white card under the Regulation to an individual on successful completion of the course, including assessment; and
(c)to re‑issue a white card in certain circumstances.
By para 5, the 2017 Agreement contained these clauses.
First, the regulator deems training to be successfully completed if the performance assessment has been completed by direct observation of the learner by an assessor achieved either by the assessor observing the learner “physically” (which presumably means in the physical presence of the learner) and/or by an assessor observing the learner via audio and visual media in real time: cl 2(b).
Second, the RTO must require the person to provide, with their application, a “certification” and “declaration evidence” for the “mode of delivery” as “documented in Appendix 1” to the 2017 Agreement: cl 3(a).
Third, the RTO must allow a representative of the regulator, being either an inspector appointed under the WHS Act or a WHS(Q) officer, to enter a venue where the course is being conducted or delivered for the purposes of an audit: cl 15.
Fourth, the RTO acknowledges that the regulator may amend the conditions of the 2017 Agreement at any time by giving, by email, 21 days prior notice of amendments to the conditions: cl 16.
Fifth, the mode of delivery of the course could be by face‑to‑face delivery, electronic‑based delivery and by distance‑based delivery: Appendix 1.
By para 6, RSA exercised the power conferred under s 325 by providing training to individuals by delivering the course by audio and visual media in real time from its place of business in New South Wales to individuals located in Queensland and all other States and the ACT and the Northern Territory, in compliance with its obligations arising under the NVETR Act.
By para 8, on 14 December 2018, the regulator exercised the power in cl 16 to amend the conditions of the 2017 Agreement. The amended conditions were to commence on 1 February 2019. However, that date was extended to 1 March 2019 (the “2019 Conditions”). By para 8, the amendment was made in exercise of the power “referred to in paragraph 6” (which seems to be a misplaced cross‑reference in the pleading). By para 8, the amendment was made in the exercise of the power granted to the regulator under s 325 of the Regulation and applied to all agreements made by the regulator with RTOs under s 325 wherever located in Australia. By para 9, the 2019 Conditions introduced by the amendment were these.
First, the regulator determines training to be completed in Queensland where, for face‑to‑face training, the physical location of the training and assessment is in Queensland; and, for online delivery, where circumstances apply, the candidate must reside in a rural area within Queensland and the RTO delivering the training must be based in Queensland: cl 2.
Second, the regulator deems training to be successfully completed if the training has been delivered face‑to‑face except that, in circumstances where the candidate resides in a rural area, the training may be delivered electronically via online delivery: cl 3(b).
Third, the regulator deems training to be successfully completed if the performance assessment has been delivered face‑to‑face, except that, in circumstances where the training has been delivered to candidates residing in a rural area, the performance assessment may be delivered electronically via online delivery performed in real time via appropriate audio and visual media where the assessor must observe the candidate at all times and a record of the assessment must be made: cl 3(c).
Fourth, the RTO must require a candidate to provide, before undertaking training, a “certification” and “declaration evidence” of the mode of delivery: Appendix 1.
As to defined terms, the 2019 Conditions contain a definition of “Electronically/Electronic Based delivery” which includes web‑based resources, computer‑based resources and online interactions incorporating direct observation of the learner via audio and visual media in real time in accordance with the assessment requirements of the course, for use only where the student lives rurally. “Real time” has a particular definition and the term “Rural/Rurally” is defined to mean “where a candidate resides a distance of 100 kilometres or more from any RTO offering face to face delivery of [the course]”. Appendix 1 to the 2019 Conditions refers to face‑to‑face delivery and electronic‑based delivery with evidence to be provided in support of electronic‑based delivery, including evidence to demonstrate that the candidate resides a distance of 100 kilometres or more from any RTO offering face‑to‑face delivery of the course.
By para 12A, the regulator on 8 August 2019 further amended the 2017 Agreement (as amended by the 2019 Conditions). That amendment was made under s 325 of the WHS Reg and applied to all RTOs, wherever geographically located in Australia. By para 12C, the further amendment removed the 2019 Conditions and adopted the following clauses (the “Amended 2019 Conditions”).
First, the RTO must not issue a card to a person unless the person has completed the Course in Queensland and meets the regulator’s requirements for successfully completing training in Queensland: cl 1.
Second, the regulator deems training to be successfully completed in Queensland having regard to three circumstances. The first is that the training is compliant with all relevant requirements under the Vocational Education and Training (VET) Quality Framework: cl 2(a). The second is that the training has been delivered face‑to‑face, except that, where the candidate resides in a rural area as defined in Appendix 1, the training may be delivered electronically via online delivery: cl 2(b). The third is that the performance assessment has been delivered face‑to‑face, except that, where the training has been delivered to candidates residing in a rural area, the performance assessment may be delivered electronically via online delivery recognising, however, that the assessment must be performed in real time via appropriate audio and visual media and the assessor must observe the candidate at all times and an electronic recording of the assessment must be made and retained: cl 2(c).
Third, the RTO must require a candidate to provide, prior to undertaking training, certifications and declarations and evidence of the mode of delivery documented in accordance with Appendix 2: cl 3.
Fourth, advertising and promotion undertaken by the RTO must expressly refer to the requirement for face‑to‑face training delivery in Queensland, subject to the exemption for students residing in a rural area (as defined by Appendix 1): cl 13.
Fifth, the RTO must not use advertising directed to encouraging students residing in Queensland, but not in a rural area, to undertake online training to receive a card issued under the approval of another jurisdiction: cl 14.
Sixth, Appendix 1 contains a schedule of defined terms including “Electronically/Electronic Based delivery”, “Real Time” and “Rural/Rurally”, as described earlier. The Amended 2019 Conditions contain an Appendix 2 which refers to face‑to‑face delivery and electronic‑based delivery with evidence to be provided in support of electronic‑based delivery including evidence demonstrating that the candidate resides 100 kilometres or more from any RTO in Queensland offering face‑to‑face delivery of the Course in Queensland.
By para 13, RSA says that it conducts its business of providing training in the Course by way of online delivery and the subsequent provision of a white card upon successful completion of the Course and the assessment requirements from its premises in New South Wales and does not have premises from which it conducts business in Queensland.
By para 14, RSA contends that the amendment introducing the 2019 Conditions discriminates in interstate trade in the provision of white cards under the Agreement, in protection of businesses conducted in Queensland offering white cards. It pleads that that follows because under the amendment introducing the 2019 Conditions, only an RTO based in Queensland can provide training in the Course to an individual, assess that individual and subsequently issue a white card to that individual; an individual resident in Queensland is precluded from obtaining training in the Course from any RTO based outside Queensland; and an individual resident outside Queensland is precluded from obtaining training in the Course and the issue of a Queensland white card.
By para 15, RSA says that as a result of the amendment introducing the 2019 Conditions, RSA is unable to continue its business of providing training in the Course and the issue of white cards to individuals as described at [82] of these reasons; is unable to compete with any RTO based in Queensland for the provision of training in the Course or white cards; and has suffered loss of revenue from its business of providing training in the course and the issue of white cards.
By para 16, the amendment of 14 December 2018 introducing the 2019 Conditions contravenes s 92 of the Constitution.
By para 16A, as to the further amendment introducing the Amended 2019 Conditions, RSA says that those changes discriminate in interstate trade in the provision of white cards under the Agreement in protection of businesses conducted in Queensland because: only an RTO based in Queensland can provided face‑to‑face training in the Course to an individual and assess that individual in completing the Course and subsequently issue a white card to that individual; an individual resident in Queensland is precluded from obtaining training and assessment in the Course from an RTO based outside Queensland unless the individual resides a distance of 100 kilometres or more from any RTO in Queensland; and an individual resident outside Queensland is precluded from obtaining training and assessment in the Course and the issue of a white card without travelling to Queensland.
By para 16B, RSA says that by reason of the amendment introducing the Amended 2019 Conditions, RSA is unable to continue to conduct its business of providing training and assessment in the Course and the issue of white cards to individuals who reside outside Queensland. It says it is unable to compete with any RTO based in Queensland for the provision of training and assessment in the Course, or the issue of white cards, to individuals who reside within 100 kilometres of any RTO offering face‑to‑face training in Queensland, by online delivery and the subsequent provision of white cards upon successful completion of the Course and assessment from its premises in New South Wales, in compliance with the approval it has under the NVETR Act. RSA says that it has suffered loss of revenue.
By para 16C, RSA contends that the further amendment and the Amended 2019 Conditions contravene s 92 of the Constitution.
By paras 16C‑16G, RSA contends that s 319(1) of the WHS Reg discriminates in interstate trade in the provision of the Course in protection of businesses conducted in Queensland by requiring training in the Course to have been successfully completed in Queensland. At para 16G, RSA draws those paragraphs together with a conclusion that s 319(1) of the WHS Reg contravenes s 92 of the Constitution.
At paras 17‑21, RSA frames its pleading based upon s 109 of the Constitution.
Section 109 is in these terms:
109 Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
The respondents, and in particular the State, seek to strike out all of these paragraphs.
At para 17, RSA pleads that the State of Queensland has adopted the NVETR Act within the meaning of s 51(xxxvii) of the Constitution. Those arrangements are identified earlier in these reasons and the adopting Act is described as the VET Powers Act (Q): see [20]‑[22] of these reasons.
At para 18, RSA pleads that under the VET Powers Act (Q), the State referred power to the Parliament of the Commonwealth in relation to “continuing VET matters” and, in particular, these matters: the accreditation or other recognition of vocational education and training courses or programs; the issue and cancellation of vocational education and training qualifications or statements of attainment; the standards to be complied with by a vocational education and training regulator; and investigative powers, sanctions and enforcement in relation to any of the above three matters.
At para 19, RSA pleads that the assessment of performance evidence for the Course, as approved in the accreditation of the Course under the NVETR Act, is to be done by direct observation of the student by an assessor, either by an assessor observing the student physically or by the assessor observing the learner via audio and visual media in real time by online delivery.
By para 20, RSA pleads that the making of the amendment to the 2017 Agreement, by the 2018 amendment introducing the 2019 Conditions and the further amendment introducing the Amended 2019 Conditions, is inconsistent with the approval under the NVETR Act. The particulars of that matter are these.
First, the Course is “a national training package competency for attainment of a nationally recognised generic construction induction qualification, being the basis of a nationally recognised white card”.
Second, under the NVETR Act accreditation, any RTO approved to provide the Course under that Act has the right to provide training and assessment in the Course either face‑to‑face or by online delivery and any student has the right to obtain training and assessment in the Course either face‑to‑face or by online delivery.
Third, the amendment and the further amendment preclude the training and assessment in the Course by way of online delivery to any student resident in Queensland within 100 kilometres of an RTO.
By para 21, the amendment and the further amendment under s 325 of the WHS Reg are said to be in breach of s 109 of the Constitution. The particulars of that matter are these.
First, pursuant to the NVETR Act, the conditions, terms and requirements of the approval of the competency for the Course are brought into force as part of a law of the Commonwealth.
Second, an RTO with approval to provide training and assessment in the Course must comply with such terms, conditions and requirements.
Third, the powers of the regulator pursuant to ss 319, 321, 322 and 325 of the WHS Reg must be exercised consistently with the conditions, terms and requirements of the approval of the competency for the Course brought into force as part of a Commonwealth law.
Before examining the adequacy of that formulation of the claim of invalidity by operation of s 109 of the Constitution, in the making of the amendment of 14 December 2018 and the further amendment leading to the amended 2019 Conditions (at paras 19 and 20 of the ASOC and at paras 17‑21 generally), these principles concerning the approach to s 109 contained in the observations of Kiefel CJ, Bell, Keane, Nettle and Gordon JJ at [29] and [31] to [35] in Work Health Authority v Outback Ballooning Pty Ltd (2019) 93 ALJR 212 (“Outback Ballooning”) ought to be noted:
Approaches to inconsistency
[29] When a law of a State is inconsistent with a law of the Commonwealth, s 109 of the Constitution resolves the conflict by giving the Commonwealth law paramountcy and rendering the State law invalid to the extent of the inconsistency.
…
[31]     In Victoria v Commonwealth (“The Kakariki”), Dixon J referred to two approaches which might be taken to the question whether an inconsistency might be said to arise between State and Commonwealth laws. They were subsequently adopted by the Court in Telstra Corporation Ltd v Worthing, Dickson v The Queen and Jemena Asset Management (3) Pty Ltd v Coinvest Ltd.
[32]     The first approach has regard to when a State law would “alter, impair or detract from” the operation of the Commonwealth law. This effect is often referred to as a “direct inconsistency”. Notions of “altering”, “impairing” or “detracting from” the operation of a Commonwealth law have in common the idea that a State law may be said to conflict with a Commonwealth law if the State law in its operation and effect would undermine the Commonwealth law.
[33]     The second approach is to consider whether a law of the Commonwealth is to be read as expressing an intention to say “completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or manner to which its attention is directed”. This is usually referred to as an “indirect inconsistency”. A Commonwealth law which expresses an intention of this kind is said to “cover the field” or, perhaps more accurately, to “cover the subject matter” with which it deals. A Commonwealth law of this kind leaves no room for the operation of a State or Territory law dealing with the same subject matter. There can be no question of those laws having a concurrent operation with the Commonwealth law.
[34]     The question whether a State or Territory law is inconsistent with a Commonwealth law is to be determined as a matter of construction. In a case where it is alleged that a State or Territory law is directly inconsistent with a Commonwealth law it will be necessary to have regard to both laws and their operation. Where an indirect inconsistency is said to arise, the primary focus will be on the Commonwealth law in order to determine whether it is intended to be exhaustive or exclusive with respect to an identified subject matter.
[35]     It is not to be expected that a Commonwealth law will usually declare that it has this effect. In some cases the detailed nature or scheme of the law may evince an intention to deal completely and therefore exclusively with the law governing a subject matter. It may state a rule of conduct to be observed, from which the relevant intention may be discerned. Any provision which throws light on the intention to make exhaustive or exclusive provision on the subject matter with which it deals is to be considered. A provision which, expressly or impliedly, allows for the operation of other laws may be a strong indication that it is not so intended. The essential notion of indirect inconsistency is that the Commonwealth law contains an implicit negative proposition that nothing other than what it provides with respect to a particular subject matter is to be the subject of legislation.
[citations omitted]

However, it should also be noted that in Outback Ballooning, Gageler J at [67], observed that “a recurring source of difficulty has been a conceptually problematic but stubbornly persistent perception of the need to classify some State or Territory law detractions from, or impairment of, a Commonwealth law as a ‘direct’ inconsistency, and to classify other State or Territory law detractions from, or impairments of, a Commonwealth law as ‘indirect’ inconsistency”. Gageler J observes that the reality of Commonwealth legislation is “more complex than this conceptual dichotomy admits”. Inconsistency “depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed”: Ex parte McLean (1930) 43 CLR 472 at 483. The “canonical” principle is that a State or Territory law will be inconsistent with a Commonwealth law to the extent that the State or Territory law would alter, impair or detract from the operation of the Commonwealth law: Victoria v Commonwealth (1937) 58 CLR 618 at 630 (the Kakariki Case), Dixon J.
Gageler J at [68] in Outback Ballooning observes that most Commonwealth laws will have a definite area of “affirmative operation” which recognises the concurrent operation of some, but not all, State and Territory laws. Gageler J at [70] in Outback Ballooning observes that the notions of “direct” and “indirect” inconsistency “do not appear as distinct concepts in the canonical formulation of the basic test” and observes at [71] that the “more complete explanation” of inconsistency is that offered by Aickin J in Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 280. The complete passage at 280 is in these terms:
The two different aspects of inconsistency [direct and indirect inconsistency] are no more than a reflection of different ways in which the Parliament may manifest its intention that the federal law, whether wide or narrow in its operation, should be the exclusive regulation of the relevant conduct. Whether it be right or not to say that there are two kinds of inconsistency, the central question is the intention of a particular federal law. The field of its operation may be regarded as wide or narrow and produce inconsistency because of the intention to cover a particular field exclusively or because of an intention to regulate specific conduct so that any other regulation of that conduct is inconsistent because the attempt to regulate the identical conduct in a different manner, or perhaps at all, necessarily impairs the operation of federal regulation of that conduct.
[emphasis added]
In New South Wales v The Commonwealth and Carlton (1983) 151 CLR 302 at 330, Mason J observed that the legal operation of the two laws may be such that the State law alters, impairs or detracts from rights and obligations created by the Commonwealth law, or it may appear that the State law alters, impairs or detracts from the “object or purpose” sought to be achieved by the Commonwealth law. Mason J observes that in either situation, there is a case for saying that the intention underlying the Commonwealth law was that it should operate to the exclusion of any law of the State having either of those two effects.
In Outback Ballooning at [73], Gageler J observes that in determining whether a State or Territory law is inconsistent with a Commonwealth law, there is a need to determine “at the first stage of the analysis the extent, if any, to which the Commonwealth law is intended to operate as a complete or exhaustive statement of the law on a subject matter”. His Honour also observes, emphasising the point made by Gummow J in APLA Limited v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at [204]‑[208] and again in Momcilovic v The Queen (2011) 245 CLR 1 at [258], that only once the intended legal and practical operation of the Commonwealth law is determined can the extent, if any, to which the other law, if operative, would alter, impair or detract from that operation, be determined.
Having regard to these principles, there are a number of difficulties with the pleading of the matters relating to contended invalidity under s 109 of the Constitution. The first is that RSA seeks to rely upon invalidity as between an amendment to the 2017 Agreement by reason of the 2018 amendment introducing the 2019 Conditions and the further amendment introducing the Amended 2019 Conditions, on the one hand, and the assessment of performance evidence for the particular Course as approved by reason of the accreditation of the Course under the Commonwealth NVETR Act, on the other hand. Accordingly, the contended inconsistency engaging s 109 of the Constitution is an inconsistency between an agreement as amended and an accreditation given under the NVETR Act. The pleading does not, in terms, identify a provision of a law of a State which is said to be inconsistent with a law of the Commonwealth on the footing that the State law operates to alter, impair or detract from the operation of a particular Commonwealth law. Inconsistency under s 109 of the Constitution is engaged by a question arising as between a law of the Commonwealth and a law of the State, not as between agreements made and steps taken in furtherance of agreements made under a power contained in a State Act, and a step such as accreditation of a course referable to a power conferred under a Commonwealth Act. Nor does the pleading seek to deal with the possibility of an inconsistency between a valid law of the Commonwealth in terms of the object or purpose of the Commonwealth law and a particular State law in the sense in which Mason J speaks about that matter as described at [107] of these reasons. The further difficulty is that the pleading does not seek to deal with the Commonwealth law by establishing precisely the scope, operation, object or purpose of the law and nor does it seek to construe or characterise the relevant text with a view to then examining the precise text of the State law so as to determine whether an inconsistency arises according to the jurisprudence. Counsel for RSA sought to deal with that very considerable difficulty by saying that inconsistency was said to arise as between s 44 of the NVETR Act and s 325 of the model WHS Reg made under the model WHS Act. The pleading needs to address that matter expressly and in a way which conforms with the jurisprudence on s 109 so as to crystalize a coherent pleading of a claim to invalidity. The other difficulty with the pleading is that it does not seek to identify the scope or operation of the model WHS Act and s 325 of the model WHS Reg in the context of construction work and the associated question of addressing construction industries in that work, and the intersection of those matters with the scope, operation and purpose of the Commonwealth Act and the provisions of the Commonwealth Act which indicate its true content and operation, or the terms of the course referencing the WHS Act and regulation.
For these reasons, paras 17 to 21 of the ASOC are to be struck out.
By paras 22 and 23 of the ASOC, RSA says this:
22.Further, the Amendment and the Further Amendment discriminates against any Australian citizen not resident in Queensland on the basis that an individual resident outside Queensland is precluded by the Amendment and the Further Amendment from obtaining training in the Course and issue of a white card under the WHS Reg.
23.In the circumstances, the Amendment and the Further Amendment are in breach of s 117 of the Constitution.
Section 117 of the Constitution is in these terms:
117 Rights of residents in States
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
The leading authority on the construction and operation of s 117 of the Constitution is Street v Queensland Bar Association (1989) 168 CLR 461 (“Street”). At 566 and 567, Gaudron J said this:
There is a particular subtlety in the language of s 117 in that its focus is entirely on the individual. It does not direct a comparison between classes or groups, as do some legislative provisions directed to the elimination of discrimination. Instead, it directs a comparison between the actual position of the person invoking s 117 and the position he or she would enjoy if resident in the State where he or she claims to be subject to a disability or discrimination.
[emphasis added]
Those observations of Gaudron J take up the dissenting observations of Stephen J in Henry v Boehm (1973) 128 CLR 482. In Henry v Boehm at 501, Stephen J compared the actual situation of the out‑of‑State resident with the hypothetical situation that resident would have been in if he were a resident of the legislating State. His Honour observed that “the process of comparison which [s 117] calls for must be undertaken”. His Honour observed that “the plaintiff’s actual situation must be contrasted with a hypothetical one which differs from actuality only because it assumes the plaintiff to be a resident of South Australia [the legislating State in that case]; in making the comparison called for by s 117, no departure from actuality is to be made other than one, relating to the plaintiff’s residence”.
Mason CJ took up those observations of Stephen J in Henry v Boehm which led the Chief Justice to this observation at 484:
So it is no answer that a challenged statutory requirement as to residence applies equally to all, to those resident in the legislating State as well as those resident out of the State; the disadvantage involved in compliance with the requirement may nevertheless apply unequally by compelling the out‑of‑State resident to give up his place of abode in order to qualify for admission in the legislating State [recognising that the particular case was concerned with a residential qualification relating to the admission of barristers].
The Chief Justice also expressed these observations about s 117 at 486:
Its form and language indicate that s 117 is directed towards individuals and their protection from disability or discrimination of the kind contemplated by the section, and that it is not, except to that extent, a restriction on State or Commonwealth legislative power. So a person not subjected to any relevant disability or discrimination by a particular law could not have that law held invalid by establishing that it subjects a third person to such a disability or discrimination; that circumstance would not lead to a striking down of the offending law. Conversely, a person who would, but for s 117, be so affected by the law is immune from its operation in so far as it subjects him [or her] to impermissible disability or discrimination, though the law itself remains valid in its application to persons who would not be so affected.
In terms of the individual focus of s 117, the Chief Justice returned to that matter at 486 and 487 and said this:
However, as Stephen J points out, the terms of the section invite a comparison of the actual situation of the out‑of‑State resident with what it would be if he were a resident of the legislating State. The section does not invite a comparison between his [or her] actual situation and that of other residents of the legislating State.
Accordingly, the approach is to compare the actual circumstances of the out‑of‑State resident with what would be his or her position if he or she were to be a resident of the legislating State, and form a view about the role of the “notional fact of residence”. The Chief Justice, at 489, said this:
I would apply the principle, along the lines mentioned above, that s 117 renders a disability or discrimination invalid if the notional fact of residence within the legislating State would effectively remove the disability or discrimination or substantially deprive it of its onerous nature.
In Street, Brennan J said this at 503 and 504:
[s 117] confers an immunity on individuals or, if we choose to employ the rhetoric of rights, confers a constitutional right not to be subjected to a certain disability or discrimination. The object of s 92 is to secure the freedom of markets; the object of s 117 is to secure equal treatment for the individuals whom it protects. …
Section 117 is a singular provision. It does not purport to limit the grant of legislative power to the Commonwealth, to restrict the scope of any power of a State, to afford any protection against the subjection of a person in a State to a disability or discrimination imposed by or under a valid law if that person is not a subject of the Queen resident in another State or to afford any protection against disability or discrimination imposed on any person in a Territory.
…
Section 117 makes the persons within the class it describes immune from (“shall not be subject … to”) an impermissible disability or discrimination however imposed. … A law which imposes an impermissible disability or discrimination on a protected person is not invalid; it remains in full force and, except in relation to protected persons, in full effect. Uniquely in the Constitution, s 117 carves out an area of personal immunity which cannot be breached by law, executive action or judicial order.
In Street, at 525, Deane J said this:
The reference in s 117 to a “subject of the Queen” must be understood, in contemporary circumstances, as a reference to a subject of the Queen of Australia, that is to say, as a reference to an Australian citizen. In terms, the section confers upon such a “subject of the Queen” who is resident in any State an immunity from being “subject in any other State to any disability or discrimination which would not be equally applicable to him [or her] if he [or she] were … resident in such other State” (emphasis added). As Stephen J pointed out in Henry v Boehm, what the section requires is a comparison between the non‑resident citizen’s actual position under the impugned law and the position in which he would be under that law if he were resident in the particular State. If the non‑resident citizen is subjected in that State to discrimination or disability which would not be “equally applicable to him” if he were resident, the guarantee of s 117 will, to that extent, be infringed.
Having regard to those observations, it is sufficient to note two things about paras 22 and 23 of the ASOC.
First, the party asserting the immunity afforded by s 117 is an entity described as RSA. It is not a citizen in the sense discussed by the authorities.
Second, the pleading does not come to grips with comparing the actual position of RSA (on the assumption that RSA is an out‑of‑State resident) with the position RSA would be in if it were a resident of the legislating State, the State of Queensland. In other words, the applicant does not seek to demonstrate that s 117 is operating so as to render a disability or discrimination invalid having regard to the “notional fact of residence within the legislating State”, as the instrument of removing the “disability or discrimination or substantially depriving it of its onerous nature”, as discussed by Mason CJ in Street. No doubt that arises because RSA cannot be, hypothetically or otherwise, a resident of the State of Queensland but, in any event, the comparison made is one engaging the position of third parties which is not the focus of the section at all.
Accordingly, paras 22 and 23 must be struck out.
Paragraphs 23 to 29 of the ASOC plead facts said to be material facts going to a claim arising under the Competition and Consumer Act (2010) (Cth).
The elements of that claim are these.
By para 24, it is said that at all material times there existed markets for the supply of training and assessment in the Course to persons in Queensland; for the supply of training and assessment in the Course and the issue of a white card to persons in Queensland; for the supply of replacement white cards to persons in Queensland; for the supply of training and assessment in the Course to persons resident outside Queensland; for the supply of training and assessment in the Course and the issue of a white card to persons resident outside Queensland; and for the supply of replacement white cards to persons resident outside Queensland. These markets are described as follows:
(a)the Qld Course Supply Market;
(b)the Qld White Card Market;
(c)the Qld Card Replacement Market;
(d)the General Course Supply Market;
(e)the General White Card Market; and
(f)the General Card Replacement Market.
By para 25, the applicant pleads that the Course was a unit of competency accredited under the NVETR Act which had to comply with the Standards for VET Accredited Courses and the Australian Qualifications Framework under the NVETR Act. RSA says that as an RTO registered under the NVETR Act, it was required to comply with the Standards of the VET Quality Framework including the Standards for Registered Training Organisations (RTOs) 2015 under the NVETR Act. It says that the accreditation of the Course required the assessment of competency in the Course to be done by direct observation of a learner by an assessor either physically (face‑to‑face) or by audio and visual media in real time (online). It says that its conduct in providing the Course was regulated by the Australian Skills Quality Authority under the NVETR Act.
By para 26, RSA says that the State of Queensland is engaged “in business” in the six markets earlier described through provision of the Course by face‑to‑face assessment through TAFE Queensland and High Schools operated by the State in Queensland.
By para 27, RSA pleads that the conduct engaged in by the regulator in making the amendment of 14 December 2018 introducing the 2019 Conditions and the further amendment of 8 August 2019 introducing the Amended 2019 Conditions involved these matters.
First, the conduct was an exercise of the regulator’s “substantial power in the markets” being the “power to control the entrance of providers of the Course to the markets, and the terms under which entrance to the markets is to be granted”.
Second, the conduct has lessened, or will substantially lessen, competition in each of the markets earlier described by preventing the Course from being supplied by online assessment other than to persons who reside a distance of 100 kilometres or more from any RTO offering face‑to‑face delivery of the Course in Queensland, in contravention of s 46(1)(a) of the CCA.
Third, the conduct was engaged in, and is continuing to be engaged in, by the regulator, in the exercise of his power in the pleaded markets.
Fourth, in the alternative to the second proposition advanced above (at [132] of these reasons), the conduct was engaged in, and is continuing to be engaged in, by the regulator in the exercise of his power in the six pleaded markets (which presumably means in all six markets rather than in each market).
Fifth, the conduct was engaged in, and is continuing to be engaged in, by the regulator as representative of the State of Queensland.
Sixth, the conduct will have the effect, or likely effect, of preventing RSA from remaining in the markets on the basis that RSA does not provide its services from within the State, in contravention of s 46(1)(a) of the CCA. For this description of the conduct, the markets are described in each case followed by the words “and/or” which means that the conduct is occurring in (a) and/or (b) and/or (c) and/or (d) and/or (e) and/or (f). That pleading raises a multiplicity of possibilities of conduct in one or more markets. A similar approach is adopted in relation to the markets (that is both aggregated and distributed) in relation to the description of the conduct for the purposes of the fourth matter described at [134] of these reasons.

By para 28, RSA seeks an injunction pursuant to s 80 of the CCA requiring the regulator to further amend the Agreement by reinstating particular clauses and an injunction restraining the regulator from enforcing the Amended Agreement and the Further Amended Agreement.
By para 29, RSA seeks damages under s 82 of the CCA calculated as its loss of profits incurred from 18 December 2018 as a result of the introduction of that amendment.
The State of Queensland seeks to strike out paras 24 to 29 of the ASOC.
The structure of the pleading is a little unusual. It asserts that there are six markets relevant to the conduct later pleaded. It then asserts that the second respondent, the State of Queensland, is in business in the markets (which presumably means in any and all of the markets) through the provision of the particular course by face‑to‑face assessment through two mechanisms, the institutions known as TAFE Queensland (Technical and Further Education institutions within Queensland) and secondary education institutions known as High Schools operated by the State of Queensland. The material facts which establish that the State of Queensland is in business by providing the course through TAFE institutions and its secondary educational institutions are not pleaded.
In any event, the conduct relied upon as contravening conduct is conduct on the part of the regulator in making the amendment and the further amendment as earlier described. There is no pleading that the regulator, or the institution of the regulator, carries on a business. The proposition based on the material facts pleaded in the ASOC seems to be that the State of Queensland carries on a business by providing the course and assessment through its educational institutions at the Technical and Further Education level and at the level of secondary schools and, by reason of that engagement, the regulator’s conduct falls within the scope of the CCA. The CCA provides, by s 2B, that the provisions of Part IV of the Act bind the Crown in the right of each of the States so far as the Crown “carries on a business, either directly or by an authority of the State or Territory”. As earlier described, Part 8 of the WHS Act addresses the topic of the “regulator”. Section 152 of that Act establishes the functions of the regulator. Section 153 describes the powers of the regulator. Section 154 deals with delegations by the regulator. No element of those provisions of the Act contemplates any notion of the regulator carrying on a business. Part 1 of Schedule 2 addresses the topic of the “appointment of regulator”. The Governor in Council may appoint a public service officer as the regulator. The regulator is appointed under the provisions of the Public Service Act 2008 (Qld). When “acting”, the regulator must act independently when making a decision under the WHS Act, but otherwise the regulator is subject to direction in the person’s capacity as a public service officer and an officer of the department. For present purposes, it may be assumed that the regulator is to be treated as part of the Crown. The regulator, by operation of s 2B of the CCA, will be bound by the provisions of Part 4 to the extent that the regulator carries on a business. Aspects of these provisions have been mentioned earlier in these reasons.
Apart from the CCA, the provisions of the Competition Policy Reform (Queensland) Act 1996 (Qld) may be engaged. That Act contains a definition of the notion of an “application law”. Section 4 of the Act refers to the “Competition Code” which is a schedule version of the text of Part IV of the CCA adopted by the Act and related provisions. Section 5 provides that the text of the Competition Code, as in force for the time being, applies as a law of Queensland subject to any future modifications to that law as contemplated by s 6 of the Act. Section 8 of that Act provides that the Competition Code, set out in the Schedule to the Act, applies to, and in relation to, persons carrying on a business within the jurisdiction; or persons ordinarily resident in the jurisdiction; or persons otherwise connected with the jurisdiction; or bodies corporate incorporated or registered under the law of this jurisdiction. Section 10 provides that the text of the Competition Code, applying as a law of this jurisdiction, may be cited as the Competition Code of Queensland. Section 13 provides that the application law of this jurisdiction binds (so far as the legislative power of the Parliament permits) the State of Queensland and each other State, so far as the relevant State carries on a business, either directly or by an authority of that State. Section 14 provides that the application law of each participating jurisdiction other than Queensland, binds the State of Queensland so far as the State carries on a business, either directly or by an authority of the State. Section 3 provides that an application law means a law of a participating jurisdiction that applies the Competition Code, either with or without modifications, as a law of the participating jurisdiction; or any regulations or other legislative instrument made under such a law; or the Competition Code, applying as a law of the participating jurisdiction, either with or without modifications.
Like s 2B of the CCA, s 13 provides that the application law of the State of Queensland binds the State of Queensland so far as it carries on a business either directly or by an authority of the State.
The ASOC asserts that the regulator has engaged in conduct in contravention of the CCA. In order for the regulator to engage in a contravention of s 46(1)(a) of the CCA, the regulator must be shown to be carrying on a business. It is not enough that the State of Queensland might or might not be engaged in aspects of carrying on a business in some way, shape or form. The regulator engages in conduct. It does so within the limits of its statutory powers and functions. It either does or does not carry on a business. The ASOC must demonstrate material facts which, if made good, demonstrate that the regulator is carrying on a business. If the regulator is carrying on a business, it might or might not be doing so in the pleaded markets and it might or might not have engaged in the conduct in contravention of s 46(1)(a) of the CCA or alternatively, conduct in contravention of the text of s 46(1)(a) of the Competition Code. However, material facts must be pleaded that demonstrate that the regulator is engaged in carrying on a business. Those facts are not pleaded. Accordingly, paras 24 to 29 must be struck out.
Those paragraphs of the pleading that purport to engage the first respondent who is the WHS prosecutor, do not involve any pleading of material facts which engages the conduct of that person. These proceedings constituted by the originating application filed by RSA on 28 June 2019 are not proceedings under, or for the purposes of, the WHS Act. The proceeding as against the first respondent is to be struck out.
Apart from the paragraphs of the ASOC already discussed, the State seeks an order striking out paras 3(c), 8(a) and 13 of the ASOC. Paragraph 3(c) is an assertion that prior to 18 March 2019, the regulator represented the State of Queensland in relation to conduct under s 152 of the WHS Act. The criticism of that paragraph is that by para 27(e), RSA pleads that the conduct engaged in by the regulator in making the Amendment to the Agreement of September 2017 (made on 14 December 2018 with the Conditions commencing on 1 March 2019) and the Further Amendment (made on 8 August 2019) was engaged in, and is continuing to be engaged in, by the regulator as the representative of the State of Queensland. Thus, the State says that RSA seems to be pleading that the regulator prior to 18 March 2019, and only prior to 18 March 2019, represented the State in the exercise of the functions under s 152 of the WHS Act, while also asserting by para 27(e) that the regulator represented the State after that date.
As to the position prior to 18 March 2019 concerning the regulator, the position is this. Section 152(1)(h) provided that one of the functions of the regulator was to conduct and defend proceedings under the WHS Act before a Court or Tribunal. Section 152(2) provided that “[t]o remove any doubt, it is declared that proceedings mentioned in subsection (1)(h) may be taken by or against the regulator in the name ‘the regulator under the Work Health and Safety Act 2011’”. Section 152 was amended by the Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) (the “WHS Amendment Act”) to omit s 152(1)(h) from the WHS Act and to omit s 152(2) from that Act. The WHS Amendment Act introduced into the Act Part 4 of Schedule 2 which established the “WHS prosecutor”. As earlier described, the WHS prosecutor by s 26 of Div 1 of Part 4 represents the State of Queensland and the function that was s 152(1)(h) became a function of the WHS prosecutor under s 27 of Div 2 of Part 4 of Schedule 2. By para 3(c), RSA seems to be asserting as a matter of construction of the legislation prior to 18 March 2019 that the regulator represented the State of Queensland and by para 27(e), RSA seems to be pleading that conduct after that date continued to be conduct on the part of the regulator as the representative of the State of Queensland. The two paragraphs may well be consistent.
As to para 8(a) of the ASOC, there seems to be an anomalous cross‑reference to para 6 in that paragraph and thus para 8(a) ought to be struck out.
As to para 13 of the ASOC, it is in these terms:
13. The Applicant (and other RTOs outside Queensland) –
a.conducts its business providing training in the Course by way of online delivery and the subsequent provision of a white card upon successful completion of the course and [its] assessment requirements from its premises in New South Wales; and
b.does not have premises from which it conducts business in Queensland.
The criticism of para 13 is that it creates ambiguity because of the reference to the word “its”. The State says that the term “its” may refer to the Course’s assessment requirements or to the assessment requirements of the applicant as part of its business. I do not propose to strike out the paragraph. RSA will be given leave to make changes to the paragraph to clarify the precise boundaries of the contention. It will be given leave to do so as part of a broader order for leave to amend the ASOC.
Having regard to all of these considerations, the orders will be that paras 8(a) and 17‑29 be struck out. RSA will be given leave to re‑plead the causes of action dismissed by reason of this decision. It may be that the applicant is able to frame causes of action in a proper way. It ought to be given an opportunity to do so. The applicant will be ordered to file an amended statement of claim within 21 days (if any). RSA is to pay the costs of the respondents of and incidental to the application.

I certify that the preceding one hundred and fifty‑one (151) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood.
Associate:
Dated: 12 August 2020

File number:	QUD 401 of 2019
Judgment of:	GREENWOOD J
Date of judgment:	12 August 2020
Catchwords:	CONSTITUTIONAL LAW – consideration of an application to dismiss paragraphs of an amended Statement of Claim which seek to plead relief based upon facts said to give rise to a claim of invalidity arising by operation of s 109 of the Constitution – consideration of a claim said to arise under s 117 of the Constitution – consideration of a claim said to arise under s 46(1)(a) of the Competition and Consumer Act 2010 (Cth)
Legislation:	Competition and Consumer Act 2010 (Cth), ss 2B, 46(1)(a), 80, 82 Competition Policy Reform (Queensland) Act 1996 (Qld), ss 3‑6, 8, 10, 13, 14 National Vocational Education and Training Regulator Act 2011 (Cth), ss 3‑6, 9, 11, 21‑29, 32‑34, 43, 44, 47, 48, 55, 56 Commonwealth Constitution, ss 51(i), (xix), (xx), (xxxvii); 92, 109, 117 National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 (Cth) National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 (Cth) Vocational Education and Training (Commonwealth Powers) Act 2012 (Qld) Work Health and Safety Act 2011 (Qld), ss 3, 152‑154, 230‑267, 276; Schedule 2, ss 25‑27, 44, 48; Schedule 5, s 4 Work Health and Safety Act and Other Legislation Amendment Act 2017 (Qld) Work Health and Safety Regulation 2011 (Qld), ss 289, 291, 298, 299, 316‑327; Schedule 19, s 5 Communiqués arising out of meetings of the Council of Australian Governments: 7 December 2009 (Brisbane); 13 February 2011 (Canberra); and 19 August 2011 (Canberra) CPCCWHS1001 Prepare to Work Safely in the Construction Industry
Cases cited:	Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 APLA Limited v Legal Services Commissioner (NSW) (2005) 224 CLR 322 Henry v Boehm (1973) 128 CLR 482 Momcilovic v The Queen (2011) 245 CLR 1 New South Wales v The Commonwealth and Carlton (1983) 151 CLR 302 Street v Queensland Bar Association (1989) 168 CLR 461 Victoria v Commonwealth (1937) 58 CLR 618 Work Health Authority v Outback Ballooning Pty Ltd (2019) 93 ALJR 212
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	151
Date of last submission/s:	12 November 2019
Date of hearing:	12 November 2019
Counsel for the Applicant:	D A Savage QC and S R Grant
Solicitor for the Applicant:	Priority Business Lawyers
Counsel for the Respondents:	S J Keim SC and K Blore
Solicitor for the Respondents:	Crown Law

ORDER MADE BY:	GREENWOOD J
DATE OF ORDER:	12 AUGUST 2020