Southlink Pty Ltd v WorkCover Corporation of South Australia - [2009] SASC 175

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
SOUTHLINK PTY LTD v WORKCOVER CORPORATION OF SOUTH AUSTRALIA
[2009] SASC 175
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice White and The Honourable Justice Kourakis)
19 June 2009
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - DELEGATION OF POWER
Judicial review - two decisions made by officers of WorkCover imposing supplementary levies under s 67, Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA) - plaintiff bus operator - supplementary levies imposed in respect of premises from which a previous operator (Serco) had operated - officers took into account the failure of the plaintiff to employ workers working from the premises who had been injured in the course of their employment with Serco - officers also took into account claims history of Serco at the premises - whether supplementary levies authorised by s 67 - whether the instruments of delegation validly delegated the statutory powers provided for in s 67 - whether, if powers were validly delegated, the decision makers acted within the terms of the delegations.
Held (Bleby and White JJ): determinations not made within scope of the delegations - decisions quashed.
Held (Bleby J): supplementary levies not authorised by s 67.
Held (Kourakis J, dissenting): the instruments of delegation did validly delegate the powers provided for in ss 66 and 67 - the decision makers acted within the terms of those delegations.
WorkCover Corporation Act 1994 (SA) ss 5, 13, 17, 66, 69; Workers Rehabilitation and Compensation Act 1986 (SA) ss 66, 67, 2, 3, 28A, 28B, 28C, 32, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 45A, 45B, 45C, 46, 58B, 58C, 59, 64, 65, 68, 69, 70, 71, 72, 76A; Acts Interpretation Act 1915 (SA) s 37; Occupational Health, Safety and Welfare Act 1986 (SA) ss 67, 67B; Equal Opportunity Act 1984 (SA) ss 5, 66, 67; Passenger Transport Act 1994 (SA); Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA) s 44; Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1991 (SA); Workers Rehabilitation and Compensation (Miscellaneous Regulations) Amendment Act 1995 (SA) s 7; Workers Rehabilitation and Compensation (Rehabilitation Standards and Requirements) Regulations 1996 (SA) reg 5, referred to.
The Commonwealth v Baume (1905) 2 CLR 405, applied.
Day v Hunkin [1938] SASR 121; Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332; Kennedy Cleaning Services (Aust) Pty Ltd v The Workers Rehabilitation and Compensation Corporation (1993) 169 LSJS 310, discussed.
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560; O'Reilly v State Bank of Victoria (1982) 153 CLR 1; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Australian Rail Tram and Bus Industry Union v Torrens Transit Services (2000) 105 FLR 88; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 249 ALR 250; Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332; Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365; R v Trebilco; Ex Parte FS Falkiner & Sons Ltd (1936) 56 CLR 20; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, considered.

SOUTHLINK PTY LTD v WORKCOVER CORPORATION OF SOUTH AUSTRALIA
[2009] SASC 175
Full Court: Bleby, White and Kourakis JJ
BLEBY J.
1. Introduction

The exposition of the background facts and relevant legislation concerning this application is adequately covered in the judgments of White and Kourakis JJ. I will not repeat those facts or the relevant provisions of the Workers Rehabilitation and Compensation Act 1986 (SA) other than where it is necessary for the purpose of these reasons. Where possible, I will use the same abbreviations as White J has adopted.
In my opinion, the first question which must be answered is whether the relevant parts of the Levy Adjustment Scheme on which WorkCover relies to justify the decisions of Ms Milburn and Mr Rhodes are authorised by the WRCA. For this purpose I am not concerned to analyse whether the actions of Ms Milburn and Mr Rhodes were within the terms of the delegation as properly understood. However, before answering that first question it is necessary to repeat a few of the relevant facts and circumstances.
1.1. The Relationship between Serco and SouthLink
When SouthLink commenced operating the bus services previously operated by Serco, there was no sale of Serco’s business to SouthLink nor any transmission of that business or any part of it. Nor was it even a successor in business of Serco in the sense discussed by the High Court in Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd.[1] Nor was there a transmission or succession in the sense discussed by Mansfield J in Australian Rail Tram and Bus Industry Union v Torrens Transit Services Pty Ltd,[2] where the Court required that there be a “practical and real connection” between the two businesses as well as a substantial identity of activities.[3] The only connection in this case was that SouthLink operated some of the same routes that Serco had operated from the same depots using the same buses, and employed some of Serco’s former employees. There is evidence that the modus operandi of SouthLink at those depots was different from that of Serco, possibly in some material respects. However, it is not necessary for the purpose of these reasons to identify those differences.
[1] [2005] HCA 9, (2005) 222 CLR 194.
[2] [2000] FCA 1683, (2000) 105 FCR 88.
[3] Ibid [72], 105.
1.2. The decisions
As White J has pointed out, the supplementary levy imposed by the Milburn decision of 6 February 2006 in respect of both the Elizabeth West and Currie Street depots contained two components: a “Bonus/Penalty Adjustment” related to Element 1 of the Scheme and a “Section 58B” adjustment related to Element 4 of the Scheme. The Bonus/Penalty Adjustment merely repeated the effect of the then apparently extant decision of Mr Batchelor, which decision was subsequently held to be invalid in the circumstances described by White J.
The formal notice of imposition of the levies for the Elizabeth West and Currie Street depots was accompanied by a letter from Ms Milburn which gave, as the only reason:
It has been determined that SouthLink is an employer with a sufficient connection to Serco (Australia) Pty Ltd that a failure to provide suitable employment to the above workers should attract the application of Element 4 of the Levy Adjustment Scheme.
Although not mentioned directly, the reference to a “sufficient connection” is a reference to cl 2.13(d) of LAS06, being the delegation which applied at the time. The relevant provisions of clause 2.13 are set out below.
Paragraph 88 of the Statement of Agreed Facts upon which the case proceeded provides:
88.Ms Milburn had formed the view that there was a sufficient connection between SouthLink and Serco because she believed the following facts and circumstances to be true and relevant:
88.1SouthLink’s Service Contract with the State Government was awarded pursuant to the Passenger Transport Act 1994;
88.2the Service Contract for the Outer North area was for a similar if not the same kind of service previously provided by Serco in that and other areas; …
88.3the granting of the Service Contract was necessary for the conduct of SouthLink’s business, being the running of designated bus services on behalf of the State Government;
88.4SouthLink would be operating within the Outer North area a similar if not the same kind of business to Serco using some of the same buses, servicing the same routes, and operating in some instances from the same location as Serco. It was provided by the Contract that SouthLink could hire its buses from the State Government for a peppercorn rental, being from among those buses previously hired by Serco under its contract; …
88.5The same sections of the users of public transport within the Outer North area that used the services of Serco within the Outer North area would without any discontinuity, use the services of SouthLink;
88.6Following SouthLink’s entry into the Service Contract and from the day that the services commenced being operated by SouthLink, Serco would no longer be able to provide the same passenger transport services;
88.7There was no interruption between the services in the Outer North area provided by Serco and SouthLink, so that from the public’s perspective, there was a continuity of bus operations, and no discernable difference between when Serco operated the business on one day, and SouthLink commenced to operate the business the next day; …
88.8Because of the awarding of the Service Contract to SouthLink in respect of the Outer North area, of necessity Serco would no longer require the employees who had previously been engaged to perform the relevant services to carry out those services;
88.9SouthLink employed a substantial number of Serco’s employees who had previously carried out the services for Serco; …
88.10SouthLink had recognised those employees’ service with Serco for the purposes of calculating certain leave entitlements; …
88.11SouthLink had acknowledged for the purposes of tendering for the Service Contract and applying to the Australian Industrial Relations Commission that “it may be contended that SouthLink is the transmittee, assignee or successor to part of the business of Serco”. In or around May 2005, Ms Milburn was made aware that SouthLink had applied for and obtained an order from the Australian Industrial Relations Commission to the effect that it not be bound by the enterprise agreement that previously bound Serco; …
88.12Clause 12.5 of the plaintiff’s Contract provided that SouthLink must recognise the prior service of each of its employees with Serco as service with SouthLink for the purposes of determining long service leave, sick leave and redundancy payments.
There was no analysis of whether the method of conduct of the business of SouthLink at the respective depots was likely to give rise to a similar claims history to that of Serco or how the “sufficient connection” was relevant to SouthLink’s failure to provide suitable employment for the six employees named in the letter of 6 February.
Paragraph 91 of the Statement of Agreed Facts provides:
91.By letter dated 6 February 2006, a determination was made by Ms Milburn on behalf of WorkCover that SouthLink was an employer with a sufficient connection to Serco to require that it provide suitable employment to former employees of Serco, in default of which an additional penalty levy (on top of the penalty levy for Serco’s work history) would be applied under Element 4 of the Levy Adjustment Scheme. …
The Rhodes decision of 13 February 2008 also purported to impose a supplementary levy relating to Element 1 of the Scheme with some further adjustments. It was in the following terms:
As a Delegate under the Determination of WorkCover Corporation appearing on page 3191 of the South Australian Government Gazette of 26 July 2007 I:
(a)hereby exercise the power delegated to me under the Determination to impose a supplementary levy on SouthLink Pty Ltd under Element 1 of the Levy Adjustment Scheme for the period commencing on the first Return Period after the date of this decision and expiring 36 calendar months from (and including) that Return Period on or subject to the following terms:
(i)    Element 1 has been applied having regard to the claims history of Serco Australia Pty Ltd for the period 1 July 2001 to 23 April 2005 pursuant to paragraph B2.13(d) of the Determination;
(ii)     Element 1 as applied to SouthLink Pty Ltd under (i) above is adjusted so as to impose a supplementary levy of:
(A)1.17% for 36 calendar months after the Return Period referred to in paragraph (a);
which I have determined on the basis that:
(B)such specified supplementary levies take account of the relevant claims performance of Serco Australia Pty Ltd in determining the calculation of Element 1 for the relevant period;
(C)the effect of the specified supplementary levies is substantially the same financial effect as Element 1 of the supplementary levy previously applied to SouthLink Pty Ltd for the periods 24 April 2005 to 30 June 2008 to the extent determined by reference to the claims performance of Serco Australia Pty Ltd for the period 1 July 2001 to 23 April 2005.
(b)am of the opinion that such supplementary levy and such adjustments as necessary and appropriate to best give effect to the objects of the Workers Rehabilitation and Compensation Act 1986 (WRCA) as specified in Section 2 of the WRCA and the primary objects of the WorkCover Corporation as specified in Section 12 of the WorkCover Corporation Act 1994 and having regard to the matters permitted to be considered under Section 67(1) of the WRCA and that, in particular (but without limiting the generality of the foregoing):
(i)    the reasons for quashing the application of the supplementary levy previously applied to SouthLink Pty Ltd in the periods 24 April 2005 to 30 June 2008 under Element 1 of the LAS which was determined by reference to the claims performance of Serco Australia Pty Ltd do not derogate from the substantive grounds for applying such a supplementary levy to SouthLink Pty Ltd (including the substantive ground that there is a sufficient connection between SouthLink Pty Ltd and Serco Australia Pty Ltd to make such a decision on the grounds set out in the affidavit of Cheryl Milburn sworn the 3^rd day of May 2007); and
(ii)     the other adjustments made to the LAS in the terms above are necessary and appropriate to give effect to the re-application of such a supplementary levy to SouthLink Pty Ltd in the circumstances.
The affidavit of Cheryl Milburn referred to did not form part of the agreed facts, but we were told that para 88 of the Statement of Agreed Facts replicates the relevant substance of her affidavit. As in the case of the Milburn decision, there was no analysis of whether the method of conduct of the business of SouthLink at the respective depots was likely to give rise to a similar claims history to that of Serco. All that seems to have been relied on was the “sufficient connection” in a business sense between Serco and Southlink.
1.3. The clauses of the Scheme relied on – Element 1
Clause 2.3 of LAS07 relevantly provides:
2.3Element 1 is the grant of a remission or the imposition of a supplement on a particular employer determined having regard to:
(a) the incidence or costs of claims for compensable disabilities suffered by a particular employer’s workers (disregarding claims excluded from the ambit of section 67(1)(b) of the WRCA by regulation); or
(b) the performance or otherwise by the employer of measures determined by the Corporation to reduce the incidence or costs of those compensable disabilities,
subject to … [certain conditions not presently relevant].
Element 1 in its terms could only relate to the costs and claims experience of SouthLink. In order to take account of the claims experience of Serco, which each of the decisions did, the Delegate had to rely on various provisions of cl 2.13 of the Scheme. Clause 2.13 of LAS07 relevantly provides:
2.13In order to give effect to the Levy Adjustment Scheme in a manner which will best achieve the objects of the WRCA under section 2 of the WRCA and the primary objects of the Corporation under section 12 of the WCA the Delegate may adjust the operation of the Levy Adjustment Scheme as follows:
…
(d) the Delegate may apply an Element or Elements to a particular employer by having regard to the claims history and other circumstances of another employer where, in the opinion of the Delegate, the connection between the particular employer and the other employer is such that it is appropriate to do so;
…
(h) the Delegate may make such further or other adjustment of the operation of the Levy Adjustment Scheme as may in the opinion of the Delegate, best give effect to the objects of the WRCA (as specified in section 2 of the WRCA) and the primary objects of the Corporation (as specified under section 12 of the WCA) and having regard to the matters permitted to be considered under section 67(1) of the WRCA (and for which purpose the Delegate may form the opinion required under section 67(1)(e) of the WRCA);
…
(j) the Delegate may apply the Levy Adjustment Scheme to an employer that does not have the requisite claims history to allow the application of Elements in the Levy Adjustment Scheme by:
(i)imputing such a claims history on the basis of the information available to the Delegate and applying the relevant Elements accordingly; and
(ii)making such adjustments subsequently as the Delegate considers appropriate if subsequent claims history is materially at variance with the imputed claims history,
however, … [not relevant for present purposes].
Clause 2.13 of LAS06 is in substantially identical terms.
In each case the Delegate considered that there was sufficient connection between Serco and SouthLink at the particular location that it was appropriate to have regard to the claims of history of Serco in the application of Element 1 at that location. They therefore relied on cl 2.13(d). Mr Rhodes also purported to rely on cl 2.13(h) and (j).
If s 67 of the WRCA does not justify reference to Serco’s claims history in the manner described in fixing Element 1 of SouthLink’s supplementary levy, then such reference cannot be justified by cl 13.2(d), (h) or (j), and the decisions relating to Element 1 will be invalid.
1.4. The clauses of the Scheme relied on – Element 4
In her decision of 6 February 2006 Ms Milburn relied, for the “Section 58B” adjustment, on the application of Element 4. Clause 2.6 of LAS06 relevantly provides:
2.6Element 4 is the imposition of a supplement where the particular employer fails to provide suitable employment for a worker of that employer who has been incapacitated for work in consequence of a compensable disability and is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employment being employment for which the worker is fit and, subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity, unless-
(a)it is not reasonably practicable to provide employment; or
(b)the worker left the employment of that employer before the commencement of the incapacity for work; or
(c)the worker terminated the employment after the commencement of the incapacity for work; or
(d)the employer currently employs less than ten employees, and the period that has elapsed since the worker became incapacitated for work is more than one year,
subject to … [certain conditions not presently relevant].
In its terms that provision could only apply to a failure by SouthLink to provide suitable employment for one of its own incapacitated workers. Ms Milburn took into account the fact that SouthLink had failed to provide suitable employment for five named partially incapacitated workers of Serco previously employed at the Elizabeth West depot, and one such worker previously employed at the Currie Street depot. Ms Milburn appears to have relied on the powers of s 58B to be able to “require”[4] SouthLink to provide suitable employment to such workers as if s 58B of the WRCA had application to SouthLink in these circumstances. Plainly it did not. She also relied on cl 2.13(d) of the Scheme, considering that there was sufficient connection between the two companies to take into account “the claims history and other circumstances” of Serco. Reliance was also placed on cl 2.13(h) of the Scheme to justify the use of the non-employment by SouthLink of the six former Serco workers.
[4] Paragraph 91, Statement of Agreed Facts.

In summary, the only expressed reason for imposing the supplementary levies on SouthLink relating to Element 4 is by reference to SouthLink’s failure to employ, at some but not all locations where it carries on business, workers who suffered disabling work related injuries whilst employed by another employer at the same locations, which employer happened to have the type of “connection” with SouthLink to which reference has been made. There is no suggestion that the disabilities of the six former Serco workers bore any connection to the modus operandi adopted by SouthLink. There is no evidence that there was even any enquiry by WorkCover as to whether any suitable employment for the workers was available from SouthLink. SouthLink seems, for the purposes of the application of Element 4, to have been treated as if it were the employer of the six workers for the purposes of s 58B of the WRCA.
The supplementary levies based on Element 4 are not said to relate to any general policy of SouthLink relating to the employment or non-employment of disabled workers generally. The Section 58B adjustments relate to the failure to employ particular disabled workers only.
2. Whether the levies are authorised by s 67 of the WRCA
The question for determination is whether, in the case of the application of Element 1 and Element 4 of the Levy Adjustment Scheme, s 67 of the WRCA permits reference to be made only to the claims experience of Serco and the failure of SouthLink to employ workers who became disabled through working for Serco at the relevant locations.
Section 67 of the WRCA provides:
67—Adjustment of levy in relation to individual employers
(1)The Corporation may, in relation to a particular employer, having regard to all or any of the following matters—
(a)     the adequacy or inadequacy of measures taken by the employer to reduce the incidence of work related traumas;
(b)     the incidence or costs of claims for compensable disabilities suffered by the employer's workers (disregarding claims of a class excluded from the ambit of this paragraph by regulation);
(c)     the rehabilitation facilities or services for disabled workers provided by the employer, or the absence or inadequacy of such facilities or services provided by the employer;
(d)     the employer's practices as to the retention, employment or re-employment of disabled workers (and, in particular, any failure on the employer's part to provide, in accordance with this Act, employment to a worker who has suffered a compensable disability in the employer's employment);
(e)     such other matters (whether similar or dissimilar to those referred to above) as the Corporation considers relevant,
grant to the employer a remission of the levy that would be otherwise payable or impose on the employer a supplementary levy (as the case may require).
(2)If the Corporation imposes a supplementary levy on an employer under subsection (1), it may also require the employer to observe conditions stipulated by the Corporation in a written notice given by the Corporation to the employer.
(3)If an employer fails to comply with a condition imposed under this section, the Corporation may impose on that employer a further supplementary levy.
(4)The Corporation may, for any proper reason—
(a)     vary or revoke a condition imposed under this section; or
(b)    revoke or reduce a supplementary levy imposed, or a remission of levy granted, under this section.
(5)The Corporation may establish rehabilitation and return to work programs for disabled workers on terms under which an employer who participates in the program by providing employment for disabled workers and complying with the other conditions of the scheme is entitled to reduction of the levy that would otherwise be payable by the employer on a basis set out in the scheme.
(6)The terms and conditions of a rehabilitation and return to work scheme established under subsection (5) must be promulgated by regulation.
2.1.   Paras (a)-(d) and Element 1
None of paras (a)-(d), and in particular para (b), of subsection (1) enable recourse to be had to Serco’s claims history or to its performance or otherwise of measures to reduce the incidence of claims costs in the application of Element 1 to SouthLink. All those paragraphs relate to matters concerning the activities or omissions of the “particular employer” referred to in the opening words of the subsection, in this case, SouthLink. I accept that the definition of “employer” in s 3 of the WRCA includes a “former employer”. However, that can have no application to the expression used in s 67 because it relates to the same particular employer throughout. So much has already been decided by a majority of this Court in Kennedy Cleaning Services (Aust) Pty Ltd v The Workers Rehabilitation and Compensation Corporation.[5] It follows that if recourse to Serco’s claims history and related matters is to be justified, it can only be under para (e) of s 67(1). I will return to a consideration of that paragraph.
[5] (1993) 169 LSJS 310, 319 Duggan J, Mattheson J concurring, Legoe J contra.
2.2. Paras (a)-(d) and Element 4
The same applies to the non-employment of former Serco workers by SouthLink for the purposes of the “Section 58B” adjustment and Element 4. Apart from para (e) of s 67(1), the only possible justification for that element of the supplementary levy is s 67(1)(d). It is necessary to consider that paragraph in more detail.
The supplementary levies in this case are not related to SouthLink’s practice as to the retention of disabled workers. SouthLink has never employed the workers in question. For the same reason, the levies cannot relate to SouthLink’s practice as to re-employment of disabled workers. The only question is whether they relate to SouthLink’s practice as to the “employment” of disabled workers. In my opinion that expression does not justify the imposition of the supplementary levies in this case.
In the first place, para (d) refers to the employment of disabled workers. In context, this can only relate to the engagement or initial hiring of disabled workers. The continued employment of disabled workers is covered by the expressions “retention” and “re-employment” appearing in the same paragraph. Significantly, the paragraph does not refer to an employer’s practice as to the non-employment of or the refusal to employ disabled workers. The question is whether such practices are intended to be included in the expression “employment … of disabled workers”. In my opinion, such practices are not so included.
First, I rely on the absence of any reference to such practices in the paragraph. However, that alone may not be enough. An employer’s practice as to the retention of disabled workers will necessarily include consideration of and will be judged by the employer’s practice of not retaining disabled workers. An employer’s practice as to re-employment will necessarily include consideration of and will be judged by the employer’s practice of not employing its disabled workers. In each case, one is a necessary corollary of the other. Can the same be said of an employer’s practice as to the employment (i.e. engagement) of disabled workers as necessarily including a consideration of and being judged by the employer’s practice of not employing disabled workers?
At this point I must digress and ask who is covered by the expression “disabled workers”. For the purposes of the WRCA, “worker” is defined as meaning:[6]
(a)a person by whom work is done under a contract of service (whether or not as an employee);
(b)a person who is a worker by virtue of section 103A;
(c)a self-employed worker,
and includes a former worker and the legal personal representative of a deceased worker;
[6] WRCA s 3(1).
Section 103A refers to certain types of volunteers performing work of a prescribed class. A self-employed worker means a self-employed person to whom WorkCover has extended the protection of the Act pursuant to s 103.[7] “Disabled worker” is not defined but “disability” is.[8] I would take the expression as used in para (d) to mean a worker, as defined, who suffers a disability, as defined.
[7] WRCA s 3(1).
[8] Section 3(1) WRCA defines “disability” of a worker as meaning:
(a)any physical or mental injury including—
(i)loss, deterioration or impairment of a limb, organ or part of the body, or of a physical, mental or sensory faculty; or
(ii)a disease; or
(iii)disfigurement; or
(b)where the context admits—the death of the worker,
and includes a secondary disability;
“Secondary disability” is defined as meaning:
… a disability that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior disability.
That is a narrower class of person than the class protected by, for example, s 67(1) of the Equal Opportunity Act 1984 (SA).[9]
[9] Section 67(1) of the Equal Opportunity Act provides:
67—Discrimination against applicants and employees
(1)It is unlawful for an employer to discriminate against a person on the ground of impairment—
(a) in determining, or in the course of determining, who should be offered employment; or
(b) in the terms or conditions on which employment is offered.
Section 66 of the Act provides:
66—Criteria for establishing discrimination on the ground of impairment
For the purposes of this Act, a person discriminates on the ground of impairment—
(a)if he or she treats another unfavourably because of the other's impairment, or a past or presumed impairment;
(b)if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i)the nature of the requirement is such that a substantially higher proportion of persons who do not have such an impairment complies, or is able to comply, with the requirement than of those persons who have such an impairment; and
(ii)the requirement is not reasonable in the circumstances of the case;
(c)if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons who have such an impairment, or on the basis of a presumed characteristic that is generally imputed to persons who have such an impairment;
(d)if, in circumstances where it is unreasonable to do so—
(i)he or she fails to provide special assistance or equipment required by a person in consequence of the person's impairment; or
(ii)he or she treats another unfavourably because the other requires special assistance or equipment as a consequence of the other's impairment;
(e)if he or she treats a person who is blind or deaf, or partially blind or deaf, unfavourably because the person possesses, or is accompanied by, a guide dog, or because of any related matter (whether or not it is his or her normal practice to treat unfavourably any person who possesses, or is accompanied by, a dog).
One does not have to be a “worker” in order to invoke the protection of that Act. “Impairment” is defined as meaning “intellectual impairment or physical impairment”.[10] It is a wider concept than “disability”, and notions of discrimination on the ground of impairment contained in s 66 of the Equal Opportunity Act in determining or in the course of determining who should be offered employment covers a much wider field than simply failing to employ. While failing to employ a disabled worker may, in some circumstances, amount to a breach of s 67(1) of the Equal Opportunity Act, WorkCover could not take into account under s 67(1)(d) of the WRCA a breach of the Equal Opportunity Act which did not involve a “worker” as defined or a worker who was not “disabled” in the sense discussed above. To do so would probably not promote any object of the WRCA.
[10] Section 5(1) Equal Opportunity Act.
I assume for present purposes that a practice of employing disabled workers includes a practice of not employing disabled workers. There are limitations on the class of person who might be the subject of a failure to employ for the purpose of s 67(1)(d) when compared with the class of persons who may be protected by s 67(1) of the Equal Opportunity Act. It is still a very wide class. Section 67(1)(d) would also relate simply to the non-employment of disabled workers for whatever reason, whether discriminatory or not. An employer’s practice as to the non-employment of disabled workers will be difficult to ascertain without some form of detailed enquiry by WorkCover. It is relatively easy for WorkCover to detect an employer’s failure to retain or to re-employ its own injured workers. That will be evident from WorkCover’s own records and the notifications required by ss 58A and 58C of the WRCA. Such a failure, consistent with the scheme of the Act, could well justify the imposition of a supplementary levy.
An employer’s practice as to the non-employment of disabled workers generally is much more difficult to ascertain without individual and possibly detailed enquiry into the practice of that individual employer. The pool of workers to which it applies extends well beyond the pool of the employer’s workers to which the other expressions apply. It may necessitate an enquiry into the engagement of every employee by the employer over an indefinite period of time. It is much easier to establish by example a practice of engaging disabled workers than it is to establish a practice of non-engagement of disabled workers. One must first establish that there was a disabled worker reasonably eligible and available and who applied for the position. So there are almost insuperable difficulties of proof of such practice which do not attend proof of the practice of engaging disabled workers.
Even satisfaction by WorkCover or its delegate of the practice of employing disabled workers will present substantial difficulties without some form of detailed enquiry by or on behalf of the WorkCover into the affairs of each individual employer. That is an enquiry the nature of which would be much more complex than merely having regard to the information already within WorkCover’s knowledge as to whether an employer has retained or not or has re-employed or not one its own disabled workers. That in itself suggests that the “employment” of disabled workers is not relevant to the imposition of a supplementary levy.
That view is reinforced by recourse to the history of s 67. Before it was first enacted in its present form in 1991,[11] sub-s (1) contained provisions setting out the matters to which WorkCover could have regard when granting a remission of the levy. It included the following paragraph:
(d)the desirability of providing the employer with an incentive to employ or re-employ workers who have suffered compensable disabilities, [Emphasis added].
Subsection (2) contained provisions setting out the matters to which WorkCover could have regard when imposing a supplementary levy on an employer. It included the following paragraphs:
(c)the failure of the employer to provide, in accordance with this Act, employment to a worker who has suffered a compensable disability in the employer’s employment;
(d)the failure of the employer to retain in his or her employment a worker who has suffered a compensable disability in that employment; [Emphasis added]
[11] Section 18, Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1991 (SA) (No 4 of 1991).
The concept of the desirability of employing disabled workers other than the employer’s own disabled workers was only brought into account in granting a remission. The concept of failing to provide employment for the employer’s own workers, not disabled workers generally, was only brought into account in imposing a supplementary levy.
In 1991 the structure of s 67 changed to its present form. Since then, sub-s (1) has, for all material purposes, remained unchanged. The new sub-s (1) conflated the provisions, previously contained in sub-ss (1) and (2), relating respectively to the granting of remissions and the imposition of supplementary levies. An analysis of the conflation in relation to each of the paragraphs suggests that there was no intention to change the substance, and that the introduction of “employment” into the new paragraph (d) was intended, as was the word “employ” in the old paragraph (d), to relate only to the grant of a remission. That view is supported by recourse to Hansard where, in introducing the Bill containing the amendment, all the Minister said of the amendment to s 67 in the second reading speech was that it “restates the conditions under which remissions of levy may be granted, or supplementary levies imposed, by the Corporation”.[12]
[12] Hansard, 21 November 1990, p 2103.
Sections 28A-28D of the WRCA set up a scheme for the establishment of rehabilitation and return to work plans for incapacitated workers.[13] Section 28A(4) provides that a rehabilitation and return to work plan may impose obligations on the worker “and on the employer”, i.e the employer or former employer of the worker. Section 28A(6) provides that the plan is binding on the worker and the employer. It is not, nor could it be, binding on any other employer. Section 28C requires that rehabilitation and return to work plans must comply with standards and requirements imposed by regulation. The Workers Rehabilitation and Compensation (Rehabilitation Standards and Requirements) Regulations 1996 (SA) specifies standards and requirements for both rehabilitation programs and rehabilitation and return to work plans. A plan in respect of a particular employee must be in writing.[14] While a rehabilitation and return to work plan contemplates the possibility of returning to work with a different employer, as mentioned above, the plan is only binding on the worker and his or her employer.
[13] Sections 28A-28C were inserted by s 7, Workers Rehabilitation and Compensation (Miscellaneous Regulations) Amendment Act 1995 (SA) (No 35 of 1995). Section 28D was not inserted until 2008. See Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 1998 (SA) (No 17 of 2008) s 9.
[14] Workers Rehabilitation and Compensation (Rehabilitation and Requirements) Regulations 1996 (SA) reg 5(a).
The regulations require that a rehabilitation and return to work plan contain a notice to the employer that failure to cooperate with respect to the implementation of a rehabilitation and return to work plan or to provide suitable employment for an injured worker may be considered by WorkCover as appropriate grounds to impose on that employer (i.e. the worker’s employer) a supplementary levy in accordance with s 67 of the WRCA.[15]
[15] Workers Rehabilitation and Compensation (Rehabilitation and Requirements) Regulations 1996 (SA) reg 5(i)(A),
The sanction of a supplementary levy therefore depends on whether or not the worker’s employer cooperates in the implementation of the plan, especially in respect of obligations of re-employment. There is nothing in the Scheme which is dependent on employment by another employer of the disabled worker, neither is there any suggestion of a remission of the levy upon an employer for doing so.
That whole legislative scheme is therefore consistent with non-retention and non-re-employment of an employer’s disabled workers giving rise to the imposition of a supplementary levy on that employer. It places no sanction on a different employer for not employing a disabled worker. That is consistent with the term “employment” in s 67(1)(d) relating only to the possible grant of a remission of the levy, but not the imposition of a supplementary levy.
Consistent with that approach, sub-ss (5) and (6) of s 67 were added by amendment in 1995,[16] in fact by amendment to an existing amending Bill,[17] thereby reinforcing the parliamentary intention that the employment of disabled workers should result, if anything, in a remission of the levy, and should therefore act as an inducement to employers to employ disabled workers.
[16] Section 28 Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1995 (SA) (No 35 of 1995).
[17] See Hansard, 6 April 1995, p 1805.

It is almost impossible to conceive any scheme of practical and universal application which might reveal a practice of deliberate non-employment of disabled workers which might justify the imposition of a supplementary levy. Indeed, failure to employ a particular disabled worker is not necessarily evidence of a practice of refusing to employ disabled workers. Whether it is in a particular case could well give rise to substantial dispute which may never be satisfactorily resolved, and the resolution of which could consume enormous resources simply not justifiable for the determination of whether or not a supplementary levy should be imposed.
I therefore conclude that, while para (d) justifies the imposition of a supplementary levy for a practice of non-retention and failing to re-employ one’s own disabled workers, the practice of employment of disabled workers is only intended to affect the grant of a remission of the levy.
The second reason why, in my opinion, para (d) does not justify the imposition of the supplementary levy in this case is that para (d) is limited to consideration of the practice of the non-employment (if it applies at all) of disabled workers generally and not the non-employment of particular workers at a particular location because they happen to have become disabled while employed by a particular employer which happened, at the time, to carry on business at the same location. If para (d) has any application to the practice of non-employment of disabled workers, the paragraph requires some enquiry into the practice of the employer generally, and this will almost certainly require consideration of the policy on which the practice is based and consideration of any other circumstances where, or at least some enquiry into whether, the employer has in fact employed disabled workers. The generality of the expression used would also preclude consideration of the practice at only one location where the employer operates from more than one location. Furthermore, the ascertainment of a practice would at least require establishment of knowledge on the part of the employer that a disabled worker was willing and available to be engaged in the position being filled by the employer.
Nothing is known of the reasons why, in this case, SouthLink did not employ the workers in question or whether it was even aware of them. The fact that it did not employ them says nothing about the reasons why it did not or whether it has or has not a practice of employing disabled workers. The reason for imposing the supplementary levy related solely to the fact that SouthLink operates the same bus routes from the same premises as did a previous employer, and the non-employment by SouthLink of some workers of that previous employer who were and remain partially disabled. It did not relate to any general practice of SouthLink relating to the non-employment of disabled workers.
For these reasons I conclude that the imposition of the supplementary levy based on Element 4 was not justified under para (d). That leaves para (e) on which WorkCover must rely in order to justify both Elements of the supplementary levies in this case.
2.3. Section 67(1)(e)
Paragraph (e) of s 67(1), read by itself, is cast in extremely wide terms. It may be that the words in brackets were intended merely to negate the application of the ejusdem generis rule of construction. Whether or not the words have that effect does not really matter. One must take their inclusion to mean that there is, taking para (e) alone, to be no limitation on the type of matters beyond those mentioned in paras (a)-(d) that WorkCover can take into account in granting a remission or imposing a supplementary levy except by reference to the objects and purposes of the WRCA.[18] By such a limitation para (e) would be limited to matters which can fairly be said to promote one or more of the objects of the Act. It would nevertheless leave open an extremely wide discretion on the part of WorkCover in determining the matters to which it might have regard for the purposes of s 67(1).
[18] See Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365, 384 Windeyer J; R v Trebilco; Ex Parte FS Falkiner & Sons Limited (1936) 56 CLR 20, 32 Dixon J; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, 40 Mason J.
One of the objects of the Act is to ensure that the Scheme is fully funded on a fair basis.[19] That might be said to justify WorkCover taking into account, in fixing a supplementary levy, any matter which promotes the object of a fully funded Scheme, the only limitation being that it must be “on a fair basis”. Opinions will inevitably differ as to what constitutes a fair basis but, if that is the only limit, it would allow for a wide range of matters to be considered having no necessary relevance to the matters listed in paras (a)-(d) of s 67(1). Assuming that they were otherwise considered fair, it would include matters of the type taken into account in respect of the SouthLink supplementary levies.
[19] Section 2(1)(d) WRCA.
However, that approach to the interpretation of para (e) immediately exposes a problem with the drafting of s 67(1). The opening words allow WorkCover to have regard to “all or any” of the matters listed in paras (a)-(e). That means that WorkCover can ignore, if it wishes, all the matters mentioned in paras (a)-(d) and rely solely on para (e) in order to impose a valid levy. It would be otherwise if sub-s (1) provided that WorkCover must “have regard to the following matters”. There can be no doubt that paras (a)-(d) are all matters that would promote, in varying degrees, most of the objects of the Act.[20] But they could be ignored in favour of a wide range of other matters that could be directed towards the fulfilment of a single object of the Act such as, for example, the provision of the efficient and effect administration of the Scheme set up by the Act,[21] or ensuring that the Scheme is fully funded on a fair basis,[22] being objects to which the matters referred to in paras (a)-(d) have little or no relevance.   It follows that, if para (e) bears that extremely wide meaning, Parliament need only have drafted sub-s (1) in the following terms:
(1)The Corporation may, in relation to a particular employer, having regard to such matters as the Corporation considers relevant, grant to the employer a remission of the levy that would be otherwise payable or impose on the employer a supplementary levy (as the case may require).
[20] Section 2(1) of the WRCA provides:
2—Objects of Act
(1) The objects of this Act are—
(a)to establish a workers rehabilitation and compensation scheme—
(i)     that achieves a reasonable balance between the interests of employers and the interests of workers; and
(ii)    that provides for the effective rehabilitation of disabled workers and their early return to work; and
(iii)    that provides fair compensation for employment-related disabilities; and
(iv)    that reduces the overall social and economic cost to the community of employment-related disabilities; and
(v)    that ensures that employers' costs are contained within reasonable limits so that the impact of employment-related disabilities on South Australian businesses is minimised; and
(b)    to provide for the efficient and effective administration of the scheme; and
(c)    to establish incentives to encourage efficiency and discourage abuses; and
(d)     to ensure that the scheme is fully funded on a fair basis; and
(e)     to reduce the incidence of employment-related accidents and disabilities; and
(f)    to reduce litigation and adversarial contests to the greatest possible extent.
[21] Section 2(1)(b) WRCA.
[22] Section 2(1)(d) WRCA.
On that interpretation of para (e), paras (a)-(d) are entirely otiose. They serve no useful purpose.
Were those paragraphs intended merely to be examples of what could be taken into account? The sub-section does not say so. Instances abound in modern legislation where Parliament has stated a general proposition followed by examples of its application. The sub-section is not drawn in that way. By use of the word “any” in the opening words it allows the exclusion from consideration of the matters contained in paras (a)-(d).
Parliament must have intended paras (a)-(d) to have some work to do. It must have intended, as the opening words of the sub-section suggest, that WorkCover should at least direct its mind to the various factors affecting the employer mentioned in those paragraphs. That therefore raises a question as to whether Parliament did indeed intend para (e) to have such wide literal application.
In interpreting a statute it is a well-known rule, applied by Griffith CJ in The Commonwealth v Baume,[23] that “such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.[24] That passage has received more recent endorsement by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority.[25]
[23] (1905) 2 CLR 405.
[24] Ibid 414.
[25] [1998] HCA 28, [71], (1998) 194 CLR 355, 382. See also numerous other cases cited by Pearce and Geddes Statutory Interpretation in Australia (6^th ed), 44-45, [2.22].
However, to give para (e) no effect because it renders the sub-section absurd would also be to offend the same principle.
In my opinion there is one way in which para (e) can be construed in order to give effect to the provisions of paras (a)-(d) whilst also giving effect to the parliamentary intention that those matters should not be the only matters to which WorkCover may have regard. Paragraphs (a)-(d) relate exclusively either to the activities, omissions, or practices of the “particular employer” referred to in the opening words of the sub-section or to certain features pertaining to the workers of that employer. Each of those paragraphs is linked in a material way to that particular employer. In order to make sense of para (e) and to give it work to do, its provisions need to be limited in the same way. The necessary implication, if the sub-section is to be construed as a whole, is that the matters referred to in para (e) are similarly limited and relate to matters concerning that employer or its workers or concerning the conduct of its business, whether similar or dissimilar to those matters referred to in paras (a)-(d). In my opinion s 67(1) should be construed in that manner.
It follows that, in the application of Items 1 and 4, of the Delegation, a consideration of the claims experience of another employer above can have no application. It could only have relevance as an “other matter” for the purposes of para (e) if the relevant work practices and modus operandi were so similar that WorkCover could be satisfied that, because of those work practices and modus operandi of the employer, in this case SouthLink, a similar claims experience was likely. That will not follow merely because of the type of connection relied on in this case by WorkCover. There is no evidence of any relevant enquiry having been conducted by WorkCover. It also follows that to the extent that the “connection” relied on is authorised by the Delegation in cl 2.13, it is not authorised by s 67(1).
In the case of the application of Item 4, the type of connection which might justify consideration of another employer’s claims experience for the purpose of Item 1 cannot have relevance to the imposition of a levy for not employing disabled workers because they are disabled workers of that other employer. The fact that six disabled workers of a former employer are not employed by another employer because they suffered their disability while employed by that particular named employer cannot, of itself, justify a supplementary levy. That fact has nothing to do with the relevant circumstances of the other employer. That fact can be of no greater relevance than SouthLink’s failure to employ six disabled workers because they suffered their disability while employed by any other named employers. The reason invoked in the Milburn decision for imposing the supplementary levy was not that they were disabled workers whom SouthLink could have employed. We do not know whether that was so or not. The reason for imposing the levy was that they were Serco’s disabled workers. It is the reliance on the fact that they were Serco’s disabled workers that was the irrelevant consideration. It follows that, to the extent that the Delegation authorised the application of Item 4 in this case it is not authorised by s 67(1).
It remains to consider the possible effect of the decision of this Court in Kennedy Cleaning Services (Aust) Pty Ltd v The Workers Rehabilitation and Compensation Corporation.[26] That case involved the sale and purchase of a contract cleaning business from one company to another. The shareholders in the vendor company became, in the same proportions, 50% shareholders in the purchasing company. Some of the directors remained the same. The business continued to operate in the same manner. WorkCover imposed a supplementary levy on the purchaser company based on the claims experience of the vendor. It did so pursuant to s 67(1)(e). There is no doubt that there was a transmission of the same business from the vendor to the purchaser. The matter came before the Full Court on a special case stated in which the question posed was “whether, in imposing a supplementary levy pursuant to section 67 of the Act, WorkCover is entitled to have regard to the claims history of an employer other than [the purchaser], and in particular an employer who was the predecessor in title to the business now conducted by [the purchaser]”. As reported the question was answered:
In imposing a supplementary levy pursuant to Section 67 of the Act, WorkCover is entitled, if relevant, to have regard to the claims history of a former employer [the vendor] as well as the employer at the time of the updating of the registered employees [the purchaser] levy rate at 8th July 1991.
[26] (1993) 169 LSJS 310.
Although the answer to the case stated was agreed upon by all three judges, they were not unanimous in their reasons. Duggan J wrote a judgment with which Matheson J concurred. His reasons differed in some material respects from those of Legoe J, whose reasons turned largely on the application of the extended definition of “employer” in s 3 of the WRCA, being reasons which the majority, in my respectful opinion correctly, rejected.
Duggan J[27] rejected a submission that, based on the opening words of the sub-section, only matters concerning the present employer could be taken into account. However, his Honour acknowledged that the expression “the employer” in paras (a)-(d) must refer to the “particular employer” mentioned in the opening words of the sub-section. His Honour appears not to have considered the basis on which I have reached my conclusion.
[27] Ibid 319.
His Honour concluded;[28]
The question remains as to whether the claims history of an employer who was the previous owner of the business can in any circumstances be a matter which the Corporation is entitled to take into account by virtue of para (e). I have no doubt that such an enquiry may well give rise to considerations relevant to the general purposes of the Act. One of the obvious purposes of the power to impose a supplementary levy is to allow for adjustment by reason of matters which might bear upon the incidence of claims for compensation such as the particular type of work undertaken by a business or the work-place practices of that business. Where a business is sold but continues to be operated in the same or a similar manner after the sale, the claims history of the previous owner may well be relevant to an enquiry of this nature. [Emphasis added].
[28] Ibid 319-320.
I take his Honour to mean that the previous employer’s claims history and work practices may be relevant to a determination under s 67(1) where there has been a sale of the business and where the business “continues to be operated in the same or a similar manner after the sale”. In other words, it is related to the manner in which the particular employer the subject of the supplementary levy operates the business and the relevance of those matters to its likely claims record. That it is not inconsistent with the view I have expressed as to the operation of s 67(1), in that it is related solely to the activities and omissions of the particular employer referred to sub-s (1).
If I am wrong in that view as to the reasons of the majority, I would nevertheless distinguish Kennedy on the facts, in that the ratio decidendi of the case is confined to the sale and purchase of a business where that business is continued in the same manner by the new proprietor. There was no such sale and purchase, transmission or succession in this case.
2.4. Conclusion
For these reasons I would grant the relief sought by SouthLink on its application for judicial review and would quash both the Milburn decision and the Rhodes decision as being beyond the powers conferred by s 67(1) of the WRCA.
3. Section 67 and the ability to increase a supplementary levy
Because it affects some aspects of the validity of the supplementary levies in question, it is convenient to deal briefly with one further aspect of the interpretation of s 67 concerning the ability to increase a supplementary levy.
Section 67 says nothing about the period of operation of any supplementary levy or remission. It could be indefinite or for a fixed period. As will be seen, cl 2.2 of the Scheme requires that it be fixed for a discrete period. No-one has suggested that that provision is beyond power.
I agree with White J that under the provisions of s 67 WorkCover cannot increase a supplementary levy during the period in which it operates unless that is done in accordance s 67(3). That seems to me to be the necessary implication from the provisions of sub-s (3) and (4). It would seem to have the additional and perhaps unintended consequence that the remission of a levy during its period of operation cannot be increased either. However, that does not mean that a supplementary levy cannot be revoked or expire by effluxion of time and a different and higher levy then imposed. Section 67(4)(b) makes that clear. Whether that can be done and by whom will depend on the terms of the delegation. The only implication I draw from s 67 is that a supplementary levy (and a remission) cannot be increased during its term, whatever that may be and however that may be fixed.
4. The Milburn decision – authority to impose a supplementary levy
I agree with White J, for the reasons that he gives, that Ms Milburn had no authority to impose the supplementary levy which reflected both Elements 1 and 4. In the circumstances her authority was limited to making an assessment of Element 4 and not Element 1. Her authority did not extend to imposing a supplementary levy which reflected the net effect of more than one Element.
The several documents constituting the Levy Adjustment Scheme from time to time are extremely complex and difficult to understand. The attempt to delegate the establishment and prescription of the form of the Levy Adjustment Scheme, and its alteration, to a variety of delegates in the same document as the various functions under the Scheme are delegated makes for substantial confusion of the role on the part of the various delegates. One gets the impression that the various versions of the Scheme have been written to fit the author’s understanding of an existing administrative scheme, rather than from a consideration of the function or functions to be delegated and how and to whom they should be delegated.
As is apparent from White J’s analysis, unless and until one decides at each point which of three possible meanings the word “Delegate” has, the Scheme seems to defy rational interpretation. Such difficulties are apparent in the interpretation of cl 2.2 on which this aspect of Ms Milburn’s decision founders. Clause 2.2 of LAS06, being the Scheme under which Ms Milburn purported to make her decision, provides:[29]
2.2The remission to be granted or the supplement to be imposed on a particular employer shall be the result, in net terms, of the application of the discrete elements of remission or supplement described in Elements 1 to 10 set out below.
Accordingly, the Delegate shall determine, within any discrete period, the application of a single remission or supplement which reflects the net effect of Elements 1 to 10 (provided that the part of the remission that reflects the operation of Element 2 of the Levy Adjustment Scheme may be payable as a lump sum).
[29] Clause 2.2 of LAS07 is in identical terms save that it refers to Elements 1 to 11.

The first paragraph, standing by itself, might present a workable scheme. If there were no requirement for the fixing of a discrete period for the levy but only for the operation of the various Elements, or if the operation of the Scheme was not limited by the effect of s 67 itself by preventing an increase of the levy save in the limited circumstances contemplated by sub-s (3), the Scheme might be able to work merely by applying from time to time the arithmetic effect of the several remissions or supplements caused by the application of the various Elements. However, the fact is that cl 2.2 requires a single remission or supplement to be fixed and that it be fixed for a “discrete period”. The duration of that period may well influence the level at which the remission or supplement in respect of a particular Element is fixed. The imposition of the levy therefore requires coordinated action with the fixing of a single remission or supplement for each discrete period. It requires the “Delegate” referred to in the second paragraph to be one who can determine the total amount of the remission or supplement and the discrete period. That cannot be done by one of the specific delegates.
The second paragraph of cl 2.2 could in theory apply to a specific delegate where only one Element is invoked to fix the remission or supplement. However, that runs the risk of one specific delegate acting and precluding, for the duration of the period, the application of another Element, because a supplementary levy cannot be increased other than in accordance with the provisions of s 67(3) of the WRCA.
It is the provisions of cl 2.2 which require the fixing of a single remission or supplement for a discrete period which in turn requires that the Delegate referred to in that paragraph be one of the general delegates.
5. Increasing the supplementary levy
Assuming for present purposes the validity of the Batchelor decision on which the Milburn decision was built, I agree with White J that the Milburn decision was invalid, but not only because it increased the levy in circumstances not authorised by s 67.
Clause 2.2 of LAS06 requires the Delegate to determine “within any discrete period” the application of a single remission or supplement. A decision as to a remission or supplement must therefore always contain a reference to the period during which the remission or supplement will apply. It is not possible, other than in accordance with s 67(3), to increase a supplementary levy during the period.
Clause 2.13, in the opening paragraph, purports to empower the Delegate to “adjust” the operation of the Levy Adjustment Scheme according to the provisions of the paragraph which follow. Clause 2.13(c) allows the Delegate “to terminate the operation of any Element of the Levy Adjustment Scheme for a particular employer for a definite or indefinite period”. That does not allow the Delegate to terminate the discrete period for which the supplement or the remission is fixed. It allows termination of the operation of an Element for a period within the discrete period initially fixed. However, to be consistent with s 67, any termination of an Element cannot occur if it has the effect of increasing either a supplementary levy or a remission.
The Milburn decision, having set out the supplementary levy to apply at each of the two locations, included, in each case, the following:
1.This schedule replaces all other schedules or notices in respect of levy rates to apply to this location for the period 1 March 2006 to 30 June 2006.
Prior to 1 March 2006 there was, in each case, assuming the validity of the Batchelor decision, a supplementary levy relating only to Element 1 of the Scheme. The discrete period which he was required to fix under LAS05 expired on 30 June 2006. The effect of the paragraph quoted above is that the Milburn decision purported to terminate the Batchelor decision, including the period he had fixed for its operation, and imposed a new supplementary levy for the period 1 March 2006 to 30 June 2006. No-one had power to determine the period fixed by Mr Batchelor. Ms Milburn certainly did not, as she held no delegation in respect of Element 1.
If I am wrong in that, and the effect of the Milburn decision was merely to increase the existing supplementary levy for the duration of the period fixed by Mr Batchelor, then I agree with White J that the decision was invalid for that reason.
6. The Milburn decision – application of Element 4
I agree with White J’s conclusion that the Milburn decision is also invalid for the reason that the application of Element 4 in SouthLink’s circumstances was not authorised by cl 2.13(d) of LAS06.
I also agree that, if it was possible for Ms Milburn to have regard to the failure of SouthLink to employ Serco’s partially disabled workers, the other grounds of attack based on the terms of the Scheme fail for the reasons given by White J. However, my agreement should not be taken as qualifying in any way my opinion as to the invalidity of the determination based on the operation of s 67(1) of the WRCA.
7. The Rhodes decision
I agree with White J that the Rhodes decision also went outside the terms of LAS07 for the reasons that White J gives but only on the assumption, which I do not accept, that the relevant terms of LAS07 were authorised by s 67.
8. Occupational Health Safety and Welfare Act levy
I agree with the conclusion of White J on this issue and with the reasons that he gives.
WHITE J:
The plaintiff (SouthLink) seeks judicial review of two decisions made by the defendant (WorkCover). The summons was referred for hearing by the Full Court.
Since 2000, SouthLink has provided bus services in Adelaide. Until April 2005, it operated its buses from a depot at Lonsdale. In April 2005 SouthLink obtained an additional contract and commenced operating also from a depot at Elizabeth West and from a depot in the City of Adelaide (initially on North Terrace and later in Currie Street).
SouthLink is registered by WorkCover as an employer under the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA).[30] Since 2006, WorkCover has imposed on SouthLink, in relation to the remuneration paid to its workers at the Elizabeth West and Currie Street depots, supplementary levies under s 67 of the WRCA. The supplementary levies are an addition to the ‘industry levy’ payable by SouthLink under s 66 of the WRCA.
[30] s 59(1).
SouthLink disputes, on a number of grounds, the validity of two decisions of WorkCover imposing the supplementary levies.
SouthLink contends that the decision-makers within WorkCover have exceeded their delegated powers because they have misconceived and, or in the alternative, misapplied the roles and functions delegated to them. It contends, in the alternative, that even if the decision-makers did act within the powers delegated to them, those delegations did not delegate validly the discretion to impose a supplementary levy vested in WorkCover by s 67(1) of the WRCA.
The hearing before the Full Court proceeded on the basis of an agreed statement of facts and on agreed documents.
Statutory Context
WorkCover is a statutory corporation whose principal function is to administer the WRCA. Save in respect of employees of exempt employers, WorkCover has the responsibility of making compensation payments to, or on behalf of, workers who suffer a compensable disability.[31] A disability is compensable if it arises from employment.[32] Subject to some exceptions which are not presently material, all employers of workers within South Australia must be registered by WorkCover.[33] For the purpose of funding the liabilities which it must meet under the WRCA, WorkCover is required to establish and maintain a fund entitled the ‘Compensation Fund’.[34] The principal source of income for the Fund is the levies which (with limited exceptions) employers must pay to WorkCover.[35]
[31] WRCA s 46(1).
[32] WRCA s 30(2).
[33] WRCA s 59(1).
[34] WRCA s 64(1).
[35] WRCA s 66(1), s 67(1).
Section 66 of the WRCA provides for a levy, payable by all employers (other than exempt employers), which is calculated as a percentage of the aggregate remuneration (as defined in s 65) paid by the employer in a given period (the “industry levy”). At relevant times,[36] s 66(1)-(8) provided:
[36] Section 66 was amended by the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA) s 44, but the amendment has not yet come into force in its entirety. The amendments have no application in the present case.
66 — Imposition of levies
(1)An employer (not being an exempt employer) is liable to pay a levy to the Corporation under this section.
(2)The levy is a percentage of the aggregate remuneration paid to the employer's workers in each class of industry in which the employer employs workers.
(3)The Corporation may for the purposes of this section divide the industries carried on in the State into various classes.
(4)The Corporation may determine any question as to the class of industry in which an employer employs workers.
(5)     …
(6)     The Corporation—
(a)     must fix the percentages applicable to the various classes of industry by notice published in the Gazette; and
(b)     may, by subsequent notice published in the Gazette, vary the percentages so fixed.
(7)Subject to subsection (9), a percentage fixed under subsection (6) in relation to a class of industry must not exceed 7.5%.
(8)In fixing the percentage applicable to a particular class of industry the corporation must have regard to—
(a)     the extent to which work carried on in that class is, in the opinion of the Corporation, likely to contribute to the cost of compensable disabilities; and
(b)     the need for the Corporation to establish and maintain sufficient funds—
(i)to satisfy the Corporation's current and future liabilities in respect of compensable disabilities attributable to traumas occurring in a particular period from levies raised from remuneration paid in that period; and
(ii)to make proper provision for administrative and other expenditure of the Corporation; and
(iii)to make up any insufficiency in the Compensation Fund resulting from previous liabilities or expenditures or from a reassessment of future liabilities.
It can be seen that s 66 requires employers (other than exempt employers) to pay a levy, calculated as a percentage of the aggregate remuneration paid by them. Employers must pay the percentage of remuneration which is fixed by WorkCover for the class of industry in which the employer operates, but that percentage may not exceed 7.5% (s 66(7)).
Section 66(9) provides for circumstances in which WorkCover may, despite subs (7), fix a levy rate which exceeds 7.5%. Subsection (12) permits WorkCover, in prescribed circumstances, to remit the levy payable by an employer and subs (13) provides for the payment of a minimum levy.
Section 67 of the WRCA grants WorkCover a discretionary power to remit the levy that would be otherwise payable by an employer or, alternatively, to impose on the employer a supplementary levy. In the form which was applicable at the time of the decisions which are the subject of the present summons,[37] s 67 provided:
[37] Section 67 was amended by the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008, s 45, but that amendment has not yet come into force. The amendments have no application in the present case.
Adjustment of levy in relation to individual employers
(1)The Corporation may, in relation to a particular employer, having regard to all or any of the following matters—
(a)     the adequacy or inadequacy of measures taken by the employer to reduce the incidence of work related traumas;
(b)     the incidence or costs of claims for compensable disabilities suffered by the employer's workers (disregarding claims of a class excluded from the ambit of this paragraph by regulation);
(c)     the rehabilitation facilities or services for disabled workers provided by the employer, or the absence or inadequacy of such facilities or services provided by the employer;
(d)     the employer's practices as to the retention, employment or re-employment of disabled workers (and, in particular, any failure on the employer's part to provide, in accordance with this Act, employment to a worker who has suffered a compensable disability in the employer's employment);
(e)     such other matters (whether similar or dissimilar to those referred to above) as the Corporation considers relevant,
grant to the employer a remission of the levy that would be otherwise payable or impose on the employer a supplementary levy (as the case may require).
(2)If the Corporation imposes a supplementary levy on an employer under subsection (1), it may also require the employer to observe conditions stipulated by the Corporation in a written notice given by the Corporation to the employer.
(3)If an employer fails to comply with a condition imposed under this section, the Corporation may impose on that employer a further supplementary levy.
(4)     The Corporation may, for any proper reason—
(a)     vary or revoke a condition imposed under this section; or
(b)     revoke or reduce a supplementary levy imposed, or a remission of levy granted, under this section.
(5)The Corporation may establish rehabilitation and return to work programs for disabled workers on terms under which an employer who participates in the program by providing employment for disabled workers and complying with the other conditions of the scheme is entitled to reduction of the levy that would otherwise be payable by the employer on a basis set out in the scheme.
(6)The terms and conditions of a rehabilitation and return to work scheme established under subsection (5) must be promulgated by regulation.
Exempt employers are also liable to pay a levy to WorkCover as a contribution to the expenses incurred by WorkCover in administering the WRCA in a way which benefits all employers, whether exempt or non-exempt.[38] The levy payable by exempt employers is also a percentage of the remuneration paid by them, being a percentage of the levy which would have been payable by the employer if it was not an exempt employer.
[38] WRCA s 68.
The WRCA contains a number of provisions concerning the procedure for the payment of levies and for their enforcement. Unless excused from doing so, each employer must provide a monthly return to WorkCover detailing, amongst other things, the aggregate remuneration which it paid to its workers in the preceding month, and must pay the levy applicable to that remuneration.[39] Apart from noting that the obligations on employers in this respect are enforceable by sanctions,[40] it is not necessary for present purposes to recount the powers of enforcement vested in WorkCover.
[39] WRCA s 69.
[40] WRCA ss 70 and 71.
Some aspects of s 67 should be noted. First, it is apparent that the power to grant a remission in s 67(1) is a power to reduce the levy which would otherwise be payable, but not to eliminate it altogether.
Section 67 does not contain any express stipulation as to the form which a supplementary levy may take but there are indications that it is to take the form of an adjustment of the industry levy payable under s 66. First, the imposition of a supplementary levy is the converse of the grant of a remission of the levy which would otherwise be payable which, as noted, is a percentage of the remuneration paid by the employer. That naturally suggests that the supplementary levy takes the form of an additional percentage of the aggregate remuneration paid by the employer. This is consistent with a supplementary levy being an “adjustment” of the levy otherwise payable under s 66, as contemplated by the heading to s 67.
Secondly, s 69(2) of the WRCA requires the monthly written return to be submitted by each employer to WorkCover to be accompanied by the levy payable by the employer. This suggests that the WRCA contemplates one levy being payable even if the industry levy has been supplemented by an additional levy under s 67. That also suggests that the supplementary levy should be a percentage of the employer’s remuneration.
At the hearing, both parties accepted that a supplementary levy should take the form of an additional percentage of the aggregate remuneration paid by the employer to its workers.
Section 67 is the sole source of a power in WorkCover to impose a supplementary levy.
Section 67 also contemplates that (other than in the limited circumstances to which s 67(3) applies) WorkCover may, in respect of any given period, impose only a single supplementary levy which, once fixed, cannot be increased. Section 67(1) vests in WorkCover a power to impose a supplementary levy. Section 67(3) stipulates one limited circumstance only in which a further supplementary levy may be applied, and s 67(4) permits the revocation or reduction of a supplementary levy, but not its increase. The implication is that once a supplementary levy has been imposed in relation to a given period, it may not be increased (other than in the limited circumstances contemplated by s 67(3)). WorkCover also accepted that the scheme which it had developed for the implementation of s 67 (to which reference will be made later) specifically contemplated that there may be only a single remission or a single supplement in relation to any discrete period.
Although s 67 does not expressly empower WorkCover to distinguish between the locations at which an employer employs workers when exercising its powers of remission or imposition under s 67, the scheme developed by WorkCover for the implementation of s 67 does contemplate that such a differentiation may be made. Neither party suggested that such a differentiation was not authorised by s 67.
The Operations of SouthLink
Before 2000, public bus services in Adelaide and the surrounding metropolitan areas were, in the main, provided by a statutory corporation, TransAdelaide. In 2000, the State Government invited tenders for the rights to operate all the Adelaide metropolitan bus services. Tenders were invited in relation to six contract areas. Four operators were successful in their tenders. Australian Transport Enterprises Pty Ltd (ATE) was successful in tendering for an area known as ‘Outer-South’. Another company, Serco, was the successful tenderer in relation to three areas: Outer-North, North-South, and Outer-North-East. Each of the successful tenderers entered into a contract to operate bus services in their contract area for a period of five years, with rights of renewal.
ATE fulfilled the obligations under its contract relating to the Outer-South area through its subsidiary, SouthLink, which commenced providing bus services in 2000. At all times, it has provided the buses for the Outer-South area from a depot at Lonsdale. That depot had been previously used by TransAdelaide and, as part of the contract process, was made available to ATE (and SouthLink) at a peppercorn rental.
In 2005, ATE exercised its right of renewal in relation to the Outer-South area.
Serco did not exercise its rights of renewal in relation to any of its three areas. This triggered a new tender process for its contract areas. ATE was the successful tenderer for the Outer-North area (including a City spine route) previously contracted to Serco. It entered into a contract on 17 February 2005 for the provision of passenger transport services in the Outer-North area. ATE then subcontracted its obligations to SouthLink and SouthLink commenced operating bus services in that area on 24 April 2005.
Although the agreed facts did not address this point, I infer that ATE or SouthLink also entered into an agreement to lease, at a peppercorn rental, the depot at Elizabeth West formerly occupied by Serco. For reasons which are unclear, it was unable to do the same immediately in relation to the depot in Currie Street, Adelaide which had been formerly occupied by Serco. However, subsequently (on 30 May 2005) it did occupy the Currie Street site.

In Reg v Home Secretary, Ex p. Venables[83] Lord Browne-Wilkinson, referring to the same passage from the reasons of Bankes LJ in Ex p. Kynoch, said:
These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v. Port of London Authority, Ex parte Kynoch Ltd; British Oxygen Co. Ltd. v. Board of Trade. But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (1995), pp. 506 et seq., paras. 11-004 et seq.[84] (footnotes omitted)
[83] [1998] AC 407.
[84] Reg v Home Secretary, Ex p. Venables [1998] AC 407 at 497 per Lord Browne-Wilkinson.
In Minister for Immigration and Ethnic Affairs v Gray[85] French and Drummond JJ reached a similar conclusion:
As Bowen CJ and Deane J observed in Drake (at 420):
‘... the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power.’
This is particularly so in the case of a power which involves high volume decision-making or which may, in any event, because of its subject matter, be expected to attract policy guidelines. Certain classes of immigration decision are necessarily high volume, such as those relating to the grant of visas and entry permits. The exercise of the power to deport involves a direct interference with individual liberty. Common concepts of justice suggest that, while each case is to be considered on its individual merits, like cases will generally be treated similarly. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question.[86]
[85] (1994) 50 FCR 189.
[86] Minister for Immigration and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206.
I have no doubt that s 17(2)(b) of the WorkCover Corporation Act 1994 authorises WorkCover to delegate its powers on condition that its delegates observe, at least as a general rule, its policies. There is nothing in the Delegation that precludes an employer submitting that the policy should be changed or departed from in its particular case. The General Delegates are authorised by Item [2.13](h) to do just that. However, SouthLink did not make any such submissions to WorkCover in this case.
It would be completely impractical for the Board of WorkCover, or any person or persons to whom it delegated the power in s 67 of the Act, to actively consider whether or not the policy should be departed from in every case, even where no application to depart from the policy was made. No principle of administrative law demands that an administrative decision maker revisit the application of a settled policy every time he or she exercises a discretion like that conferred by s 67 of the Act. If there were such a principle, the administrative regulation of industry and commerce in contemporary Australian society would quickly come to a grinding halt.
Ground (g)
SouthLink complains further that the Delegation is invalid because it distorts the s 67(1) discretion by failing to ensure that the Delegates have regard to all of the considerations provided for in that sub-section. Moreover, it argues that this failure is not remedied by Item [2.13](d), because the Delegates are not required to have regard to that Item, and because that Item is weighted toward the imposition of a supplementary levy rather than the granting of a remission.
SouthLink’s complaint that the Delegation did not exhaust all of the relevant considerations fails to have regard to the terms of s 67 of the Act. Section 67 permits WorkCover to have regard to all or any of the considerations therein prescribed as it sees fit. Neither s 67 of the Act nor the Act as a whole require WorkCover, or any person to whom the power is delegated, to act on all of the relevant considerations. WorkCover need only turn its mind to whether or not to grant remissions or impose supplements. The WorkCover Board did so before formulating the policy that finds its expression in the terms of the Delegation. The General Delegates are authorised to vary that policy and revisit all relevant matters if and when they see fit. It follows that the ground that the Delegation precludes a consideration by the Delegates of many relevant considerations is not made out.
Ground (h)
SouthLink’s complaint in ground (h) is that the Delegation is invalid because it purports to divide the discretion provided for in s 67(1) amongst a number of Elements Delegates. It argues that this is contrary to the objective of s 67(1), which (it contends) requires that a single mind determine whether a single supplementary levy, or single remission, should be imposed or granted.
As I have explained above, on a proper construction of the Delegation it gives the power of imposing a supplementary levy or granting a remission, based on the particular matters for which they are each responsible, to the Elements Delegates jointly and severally. The issue is therefore whether such a delegation is allowed under the statute.
It can be accepted that the delegations to the Elements Delegates do not allow them to have regard to all of the matters that are relevant to the exercise of the discretion conferred by s 67 of the Act. However, the conferral of wide powers on the General Delegates has the result that the exercise of the discretion under s 67 of the Act is not distorted. In every case where the General Delegates do not act to vary the result of the Delegation, it is because they, in the exercise of their discretion, have decided not to. SouthLink does not challenge the imposition of the levies on the ground that the General Delegates improperly failed to review the decision of Ms Milburn.
Furthermore, the restriction on the scope of Ms Milburn’s discretion is expressly authorised by s 17(2)(b) of the WorkCover Corporation Act 1994.
In any event, for the reasons I have given, in determining whether the Delegation impermissibly restricts the discretion conferred by s 67 of the Act, the delegation to Ms Milburn and the Elements Delegates cannot be considered in isolation. Taken together, the powers conferred on the Elements Delegates and the General Delegates allow the administrative decisions pursuant to s 67 of the Act to be made in accordance with the policy expressed in the Delegation, but subject to the power of the General Delegates to exercise the discretion conferred by that section, without being absolutely bound by the terms of the Delegation.
That was no doubt the purpose of including within the Delegation the direction to the Delegates to give effect to its terms “in a manner which will best achieve the objects of the WRCA under s 2 of the WRCA and the primary objects of the Corporation under s 12 of the WCA”.
The Rhodes Determination
Ground (a)
The complaint that Mr Rhodes applied a free standing supplementary levy based on his assessment of Element 1 and without having regard to all of the other Elements largely reflects ground (f) of the challenge to Ms Milburn’s decision. To that extent it must be dismissed for the same reasons given in [368]–[377]above.
It is also contended that Mr Rhodes misconceived his function in that he failed to have regard to the other Elements, and as a result failed to impose a single supplementary levy which was the net effect of all of those Elements.
Mr Rhodes’ reasons for invoking the particular Element with which he was concerned, because of the invalidity of the Batchelor decision, should not be confused with the actual determination made by him. The reasons appearing in the document headed “Exercise of Delegated Authority” are, on their face, confined to the reason for applying Element 1; they do not purport to deal with the imposition of a single levy pursuant to Item [2.2].
On 28 February 2008 Mr Rhodes personally sent to SouthLink notification of the imposition of a supplementary levy operative from 1 March 2008. That notice expressly referred to the Element 4 levy by noting that it was suspended. It will be remembered that that part of the levy attributable to Ms Milburn’s determination had been suspended by reason of the application for review made by SouthLink. Indeed, in the document “Exercise of Delegated Authority”, Mr Rhodes expressly referred to an affidavit of Ms Milburn dealing with the connection between SouthLink and Serco. Plainly then Mr Rhodes was aware of Ms Milburn’s determination. If, by reason of her suspension of Element 4, Ms Milburn had not yet imposed, or even purported to impose, a supplementary levy, there can be no objection to the imposition by Mr Rhodes of a single levy with a supplement based on Element 1. Even if the effect of the Milburn determination was to impose a supplementary levy but to suspend the obligation to pay it, it seems a little unreal to suggest that Mr Rhodes imposed a separate free standing levy when the form in which the notice was given simply accommodated what was thought to be appropriate given the review of Ms Milburn’s decision. There is no evidence on which it can be found that Mr Rhodes was not aware that the effect of his determination with respect to Element 1, which is the only matter dealt with by the document headed “Exercise of Delegated Authority”, was that in accordance with Item [2.2], of the Delegation he was required to impose a single levy reflecting both his, and any other extant determination. That he did determine to impose a single composite levy is evidenced by the formal notification given on 28 February 2008 to which I have referred. It was WorkCover’s policy, as expressed in Item [2.2] to impose a supplementary levy whenever an Element was applicable and to accumulate the Elements into a single levy. So far, therefore, all that has been shown is that Mr Rhodes approached his task in accordance with the policy of the Delegation; he found that Element 1 should be applied and he imposed a single levy. Mr Rhodes cannot be said to have misconceived his function when he has so obviously complied with the policy evident in the Delegation.
Nonetheless, it is submitted that Mr Rhodes was required by the terms of the Delegation to consider the other Elements prescribed in the Delegation. It is not suggested, however, that SouthLink was entitled to a remission under any of those Elements. SouthLink can hardly contend that Mr Rhodes acted beyond power because he failed to consider whether an additional supplement might have been applicable. In any event, no such submissions were made to WorkCover or this Court. Even more fundamentally, the very nature of the Elements militates against finding an implication in the Delegation that all of the Elements must be considered before imposing a supplement in accordance with any one of them. The circumstances relating to the other Elements may not yet have been discovered or may still be under investigation. There can be no sensible reason to delay imposing any supplement until the applicability of all of the Elements has been determined. The requirement in Item [2.2] that the supplementary levy imposed be the net result of the application of the Elements must be read as a reference to the net result of such of the Elements that have been determined to apply at the time of imposing the supplementary levy or granting the remission. It is also for practical reasons of this kind that s 67(4) of the Act should not be construed as exhausting WorkCover’s power to impose a levy on its first exercise.
The only possible basis on which it can be said that Mr Rhodes exceeded his power (and that is, ultimately, what must be proved by SouthLink) is that he was bound, but failed, to exercise, or at least consider, his powers to depart from that policy by deferring the imposition of the supplementary levy or by varying the operation of the scheme implemented pursuant to the Delegation. However, it has not been shown, to apply the test suggested by Gummow J in Khan,[87] that Mr Rhodes was not ready to depart from the policy if the circumstances warranted it. It is not suggested that Mr Rhodes ignored a submission that the policy manifested by Item [2.2] should not be followed in this particular case. Nor is it suggested that there were factual circumstances, of which he knew or ought to have known, that so obviously called for a departure from that policy that he was bound to consider doing so. The challenge to the validity of the Rhodes decision on this ground must fail.
[87] Khan v Minister for Immigration and Ethnic Affairs (Unreported, Fed Crt, Gummow J, Dec 1987).
Grounds (b)-(d)
The complaint that there was an insufficient connection between SouthLink and Serco raises the issues discussed in [312] above. For the reasons there given Serco’s claim history was a relevant matter both as an indicator of SouthLink’s future claims history and because SouthLink was, in substance, the successor to Serco’s transport operations. The decision to recoup from SouthLink the amount that could properly have been recovered from Serco was a reasonable exercise of the statutory discretion, having regard to the competing interests of SouthLink and other employers in its industry. The terms of Item [2.13], the formula set out in the 2007-2008 guide to the “Bonus/Penalty Scheme”, and WorkCover’s solicitor’s letter to SouthLink of 7 April 2008 show that the supplementary levy was calculated to recover the costs over and above the industry average incurred in compensating Serco’s injured workers. For the reasons I have given, it was a proper exercise of the statutory discretion to fix a supplementary levy on SouthLink pursuant to s 67 of the Act for that purpose. Therefore, I would dismiss the complaints I have summarised in sub-paragraphs (b) to (d) of [292] above.
Ground (e)
The underlying complaint on this ground is that Mr Rhodes improperly fixed the supplementary levy given the invalidity of the Batchelor decision. However, the Batchelor decision was, as I earlier explained, due to his lack of authority under the terms of the Delegation. The effect of the invalidity was that a properly authorised Delegate was free to impose a supplementary levy on the basis of those provisions of the Delegation that were applicable to SouthLink. For the reasons given in the preceding paragraph that is what Mr Rhodes did.
Ground (f)
It can be accepted that Mr Rhodes’ working documents show that he ignored SouthLink’s claim history. However, those same documents show that the levy imposed by Mr Rhodes was calculated to recoup, for the benefit of the fund and employers of that industry class, the cost of compensating and rehabilitating Serco’s injured workers. SouthLink’s claims experience was not relevant to that exercise of the power. The Act did not require Mr Rhodes to forego recovery of the burden imposed on the Compensation Fund by the Serco claims because of SouthLink’s better claims experience. If the supplementary levy imposed by Mr Rhodes had been calculated to meet SouthLink’s expected claims, then it may have been arguable that Mr Rhodes failed to have regard to a material consideration or that he adopted a method, or reached a conclusion, that was manifestly unreasonable. However, that question need not be further explored because Mr Rhodes was pursuing a legitimate object. The costs of the Serco claims were relevant to that consideration. SouthLink’s claims history was not.
Occupational Health Safety and Welfare levy
Towards the end of the hearing of this matter SouthLink was given leave to challenge the levies imposed on it on the following ground:
… WorkCover had no authority to impose upon SouthLink any OHS&W levy, alternatively, that such portion of any OHS&W levy paid by SouthLink which is referable to any supplementary review invalidly imposed are liable to be refunded.
SouthLink initially contended that the Act did not authorise the imposition of a charge described on WorkCover invoices as an occupational health safety and welfare levy. By s 67B of the Occupational Health Safety and Welfare Act 1986 (the OHS & W Act), a prescribed percentage of levies paid to WorkCover must be paid to the State department responsible for the administration of that Act as a contribution. I will refer to that amount as the OHS & W charge. SouthLink contended that the OHS & W Act did not provide a statutory basis for charging employers an amount to cover WorkCover’s liability under s 67B of the OHS & W Act. The result of that construction would be to condemn the Compensation Fund to an ever increasing deficit. SouthLink’s contention is plainly inconsistent with s 66(1) of the Act, which imposes a liability on employers to pay the WorkCover levy, and with s 66(8) of the Act, which requires WorkCover to have regard to the need to maintain sufficient funds to meet its liabilities in fixing the levy.
In written submissions provided after the hearing of this matter SouthLink accepted that when WorkCover fixes an industry levy rate it can have regard to the commitments that must be paid out of the Compensation Fund, including the OHS & W charge.
In my view, WorkCover is also authorised to have regard to the OHS & W charge in fixing a supplementary levy. I have already discussed the width of s 67(1)(e) and why the phrase “such other matters” should not be read down. It is difficult to see how the statutory charge imposed by the OHS & W Act, which, if not factored into a supplementary levy, would often defeat the very purpose of its imposition, is not a relevant matter. If the OHS & W charge could not be added WorkCover would never be able to recover in full the excessive claims costs of a poorly performing employer. As a result it would be forced to increase the industry levy rate above what would otherwise have been WorkCover’s preferred level.
Next, SouthLink argued that because the OHS & W charge was charged as a percentage on the total of the industry levy and supplementary levy, it was not in fact imposed as part of the levy. In my view the fact that the OHS & W charge is separately identified on an account does not lead to the conclusion that it is not a part of the levy imposed.
In its written submission SouthLink raised yet a further basis for challenging the OHS & W charge. It contended that insofar as it was calculated by reference to the industry levy, the OHS & W charge had not been included in the notice published in the Gazette as required by s 66(6) of the Act. The grant of leave to amend the summons for judicial review did not extend to this ground. The ground on which leave was given challenged the existence of a power to impose “any OHS & W levy”; the ground did not raise the validity of the manner in which the power was exercised on this occasion. The latest version of SouthLink’s submission raises difficult questions of construction of both the Act and the OHS & W Act. We have not heard from WorkCover on that issue because of the late stage at which it was raised. In the circumstances it should not be further entertained.
In its written submission, SouthLink also contends that the automatic application of the OHS & W charge was invalid because it cannot be characterised as discretionary. The “automatic application” of the charge of which SouthLink complains is no more than the application of a policy. WorkCover may have a discretion not to impose the charge on an individual employer, but for obvious reasons it is difficult to imagine the circumstances that would call for a departure from the policy. The Delegation should be read as carrying with it the authority to increase the supplementary levy by no more than the amount that is necessary to ensure that the Compensation Fund recovers, in net terms, the amount of the supplementary levy fixed by the Elements Delegates. The authority to do so is implicit in the grant of power to do what is “necessary to give effect to the Element”. It would be absurd to give the Delegation a construction that required the General Delegates, if not the Board, to impose the levy itself because the Elements Delegates did not have the power to impose the OHS & W charge which, in all or almost all cases, would be imposed at the particular rate determined under the OHS & W Act.
Conclusion

I would dismiss the summons for judicial review.

58B—Employer's duty to provide work
(1) If a worker who has been incapacitated for work in consequence of a compensable disability is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer from whose employment the disability arose must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity).
(2) Subsection (1) does not apply if—
(a)it is not reasonably practicable to provide employment in accordance with that subsection (and the onus of establishing that lies in any legal proceedings on the employer); or
(b)the worker left the employment of that employer before the commencement of the incapacity for work; or
(c)the worker terminated the employment after the commencement of the incapacity for work; or
(d)deleted
(e)the employer currently employs less than 10 employees, and the period that has elapsed since the worker became incapacitated for work is more than 1 year.