STENDER and CITY OF COCKBURN
[2025] WASAT 44
•15 MAY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH (MISCELLANEOUS PROVISIONS) ACT 1911 (WA)
CITATION: STENDER and CITY OF COCKBURN [2025] WASAT 44
MEMBER: MS C BARTON, MEMBER
HEARD: 7 APRIL 2025
DELIVERED : 15 MAY 2025
FILE NO/S: DR 37 of 2024
BETWEEN: TAMIKA LEIGH STENDER
First Applicant
AIDEN FRANCIS STENDER
Second Applicant
AND
CITY OF COCKBURN
Respondent
Catchwords:
Local government - Public health and safety - Tutoring business - Order requiring immediate cessation of activities - Review of order - Statutory construction - Whether commercial unit used for private tutoring a 'public building' - Meaning of 'assemble' - Meaning of 'educational purposes' - Whether Class 5 or Class 9b building - Meaning of 'assembly building'
Legislation:
Building Act 2011 (WA), s 37
Building Regulations 2012 (WA), reg 31A(3)
Health (Miscellaneous Provisions) Act 1911 (WA), s 3, s 36(1), Pt VI, s 173, s 173(a), s 176(1), s 176(5), s 178, s 178(1), s 178(3), s 178(4), s 180(1)
Health (Public Buildings) Regulations 1992 (WA), reg 5, reg 6(1), reg 7(1), reg 7(3), reg 13, reg 16, Pt 3
Independent Commission Against Corruption Act 1988 (NSW), s 2A
Interpretation Act 1984 (WA), s 6, s 18, s 19(1)(a), s 19(1)(b)(i), s 19(2), s 44(1)
School Education Act 1999 (WA)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(3), s 29(5)
Result:
Application dismissed
Category: A
Representation:
Counsel:
| First Applicant | : | Ms B Moharich |
| Second Applicant | : | Ms B Moharich |
| Respondent | : | Mr DP Gillett |
Solicitors:
| First Applicant | : | Moharich & More |
| Second Applicant | : | Moharich & More |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463
CIC Insurance Ltd v Bankstown Football Club [1997] 187 CLR 384
City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61
Clarke and Shire of Chittering [2007] WASAT 218
Hayward v The State of Western Australian [2025] WASCA 35
ICAC v Cunneen (2015) 256 CLR 1
Mohammadi v Bethune [2018] WASCA 98
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Since mid-2022, Tamika Leigh Stender and Aiden Francis Stender (applicants) have operated a Kip McGrath educational tutoring business at Unit 6, 9 Merino Entrance, Cockburn Central (Unit).
On 6 March 2024, the City of Cockburn (respondent or City) issued the applicants with an order requiring the immediate cessation of activities at the Unit (Order). The City considers the Unit may not meet the necessary minimum health and safety requirements for a Class 9b public building as referred to in the National Construction Code (NCC).
On 11 March 2024, the applicants commenced a proceeding in the Tribunal seeking a review of the Order pursuant to s 36(1) of the Health (Miscellaneous Provisions) Act 1911 (WA) (HMP Act). Specifically, the applicants seek orders from the Tribunal setting aside the City's decision to issue the Order and revoking the Order.
On 13 March 2024, the Order was stayed by the Tribunal pending the determination of this proceeding.
For the reasons that follow, I am satisfied that the Unit is a public building for the purposes of the HMP Act and the NCC and, consequently, will decline to make the orders sought by the applicants.
Factual background
Certain matters were not in dispute between the parties.[1] I make the findings set out in this paragraph in relation to those matters:
[1] Statement of issue to be determined and agreed facts filed by the parties on 11 February 2025 (Agreed facts).
(a)The applicants are the registered proprietors of the Unit. The Unit is formally known as Lot 6 on Survey-Strata Plan 61074, being the whole of the land in Certificate of Title Volume 2794 Folio 977.
(b)The strata scheme is a commercial showroom/office style precinct with frontages to Merino Entrance and Baling Street. The Unit has a frontage to Baling Street.
(c)The Unit is a ground plus one storey building with a total area of 165.6 square metres.
(d)There is one toilet on each floor.
(e)On 17 September 2014, the City granted development approval for a change of use at the Unit from 'Showroom/Warehouse' to 'Office/Showroom/Warehouse'.
(f)On 25 October 2014, the City issued a building permit for an 'Office/Warehouse Internal Fitout' at the Unit.
(g)On 19 February 2015, the City issued an occupancy permit to occupy and use the Unit as a Class 5 building.
(h)Pursuant to the NCC, a Class 5 building is defined as - '… an office building used for professional or commercial purposes'.
(i)The applicants purchased the Unit in June 2022. Since mid-2022, the applicants have operated a Kip McGrath educational tutoring business at the Unit.
(j)The tutoring business operates from 3.30 pm to 7.00 pm Monday to Thursday and from 8.30 am to 12.00 pm on Saturday mornings.
(k)The business operates small group tutoring sessions by appointment. Each session runs for one hour. The children are dropped off by their parent or guardian prior to the session and are picked up from the Unit immediately after their session. There is a 10-minute gap between one tutoring session ending, and the next beginning to allow for this changeover.
(l)Under the Kip McGrath method of tutoring, each small group has a maximum of five students per tutor. In practice, the applicants operate with four students per tutor. Each tutor is a qualified school teacher and each student has an individual learning plan that they work to within the tutoring session.
(m)On average, there are four tutor groups with an average of four children operating in the building per hour. Therefore, the usual total number of people in the Unit at any one time is:
(a)one manager;
(b)four tutors; and
(c)sixteen children.
(n)There are three tutoring rooms, one on the ground floor and two on the first floor.
(o)The tutoring business is not required to be registered under the School Education Act 1999 (WA).
(p)Officers of the City carried out an inspection of the Unit on 14 September 2023 in the presence of the applicants. At the time of the inspection there were:
(a)eight computer stations and seating for 16 students in the tutoring room on the ground floor;
(b)four computer stations and seating for eight students in the smaller of the two tutoring rooms on the first floor; and
(c)eleven computer stations and seating for 20 students in the larger of the two tutoring rooms on the first floor. In total, there were 23 computer stations and seating for 44 students in the three tutoring rooms.
(q)Children move between the computer stations and other seating, depending upon the nature of the tutoring, and are configured into groups depending upon whether they are undertaking group or individual tasks.
(r)If the use of the Unit by the Kip McGrath educational tutoring business does constitute a 'public building' under the HMP Act, then the respondent says the following modifications to the Unit are required to be made:
(i)the provision of additional toilets;
(ii)the modification of the staircase so that the stairs have treads of not less than 280 millimetres wide and risers not exceeding 180 millimetres in height. The current stairs have treads of 260 millimetres wide and risers of 190 millimetres; and
(iii)the installation of additional directional exit signs.
Issue for determination
The following issue arises for determination, as formulated and agreed by the parties:
(a)Is the Unit a 'public building' for the purposes of Pt VI of the HMP Act?
The legal framework
The expression 'public building' is defined in s 173 of the HMP Act (in Pt VI of the Act) to mean:
(a)a building or place or part of a building or place where persons may assemble for —
(i)civic, theatrical, social, political or religious purposes; and
(ii)educational purposes; and
(iii)entertainment, recreational or sporting purposes; and
(iv)business purposes;
and
(b)any building, structure, tent, gallery, enclosure, platform or other place or any part of a building, structure, tent, gallery, enclosure, platform or other place in or on which numbers of persons are usually or occasionally assembled,
but does not include a hospital.
A person who proposes to construct, extend or alter a public building must make an application for that purpose to the local government unless a building permit is required for the building work under the Building Act 2011 (WA) (Building Act).[2]
[2] HMP Act, s 176(1) and s 176(5).
Pursuant to s 178(1) of the HMP Act, a person must not open or use a public building unless the local government has issued a certificate of approval in relation to the public building specifying:
(a)the purpose or purposes for which the public building may be used; and
(b)the maximum number of persons that the building may be used to accommodate.
Further, pursuant to s 178(3) of the HMP Act, a person must not use a public building for a purpose other than a purpose specified in the certificate of approval or to accommodate more persons than specified in the certificate of approval.
It is an offence to contravene a provision of s 178 of the HMP Act.[3]
[3] HMP Act, s 178(4).
Regulations made under the HMP Act provide for the safety and health of persons in public buildings.[4] Relevantly, the Health (Public Buildings) Regulations 1992 (WA) (Regulations) provide the form in which the application for a certificate of approval must be made and the form in which the local government is to grant the certificate.[5] Regulation 7(1) of the Regulations sets out a Table with a list of uses to assist in ascertaining the maximum number of persons that may be accommodated in the floor area of a public building (other than large licensed premises) according to the type of use by m2 per person.
[4] HMP Act, s 180(1).
[5] Regulations, reg 5 and reg 6(1).
Where no provision is made in the Table to reg 7(1) of the Regulations in relation to a particular public building or a particular class of public building, the maximum number of persons that may be accommodated in the public building or a public building of that class shall be as approved by the Chief Health Officer after consulting the local government.[6]
[6] Regulations, reg 7(3).
Part 3 of the Regulations set out a number of 'miscellaneous requirements' designed to facilitate the safe occupation and use of a public building, including in the event of an emergency. For example, reg 13 of the Regulations provides for the dimensions of steps (treads and risers) and reg 16 of the Regulations provides that exit signs are to be kept visible and illuminated.
The provisions of the NCC are relevant to the classification of public buildings. Pursuant to the governing requirements of Volume 1 of the NCC, the Building Code of Australia (BCA), a Class 9 building is a building of a public nature. The classification process assists in understanding risks in a building or part of a building, according to its use.[7] The technical building requirements for Class 9 buildings are also set out in the BCA.[8]
[7] NCC 2022 Volume One - Building Code of Australia (1 May 2023), A6G1, Explanatory Information.
[8] Pursuant to s 37 of the Building Act, all buildings in Western Australia are to comply with applicable building standards. An 'applicable building standard' includes the governing requirements of the BCA: see reg 31A(3), Building Regulations 2012 (WA).
Class 9 buildings include the following sub-classifications:[9]
(a)Class 9a - a health-care building including any parts of the building set aside as laboratories, and includes a health-care building used as a residential care building;
(b)Class 9b - an assembly building including a trade workshop or laboratory in primary or secondary school.
(c)Class 9c - a residential care building.
[9] NCC 2022 Volume One - Building Code of Australia (1 May 2023), A6G10.
The NCC 'Explanatory Information' for Class 9 buildings provides, relevantly, that Class 9b buildings are assembly buildings. These buildings can include:[10]
•theatres, cinemas and halls, churches, schools, early childhood centres, kindergartens, preschools and child-minding centres; and
•indoor cricket, tennis, basketball centres and sport stadiums; and
•nightclubs, discotheques, bar areas providing live entertainment and/or containing a dance floor, public halls, dance halls and other places of entertainment; and
•snooker halls; and
•bus and railway stations.
[10] NCC 2022 Volume One - Building Code of Australia (1 May 2023), A6G10, Explanatory Information.
An 'assembly building' is defined in the NCC as follows:[11]
[11] NCC 2022 Volume One - Building Code of Australia (1 May 2023), Schedule 1 Definitions, Glossary.
Assembly building: A building where people may assemble for—
(a)civic, theatrical, social, political or religious purposes including a library, theatre, public hall or place of worship; or
(b)educational purposes in a school, early childhood centre, preschool, or the like; or
(c)entertainment, recreational or sporting purposes including—
(i)a discotheque, nightclub or a bar area of a hotel or motel providing live entertainment or containing a dance floor; or
(ii)a cinema; or
(iii)a sports stadium, sporting or other club; or
(d)transit purposes including a bus station, railway station, airport or ferry terminal.
Finally, the NCC definition of 'public building' in the Western Australian provisions of the BCA is consistent with the definition of 'public building' in s 173 of the HMP Act. The NCC definition is as follows:[12]
Public building: A Class 6 licensed premises or a 9b building where persons may assemble for —
(a)civic, theatrical, social, political or religious purposes; or
(b)educational purposes; or
(c)entertainment, recreational or sporting purposes; or
(d)business purposes.
[12] NCC 2022 Volume One - Building Code of Australia (1 May 2023), Schedule 1 Definitions, Glossary.
I next set out the principles of statutory construction that are to be applied in determining whether the Unit is a 'public building' for the purposes of s 173 of the HMP Act.
Principles of statutory construction
The process of statutory construction involves the attribution of meaning to the text of a provision, in its context, having regard to the object or purpose of the statute to be construed.[13] A statutory provision must be construed so that it is consistent with the language and purpose of all the provisions of the statute.[14]
[13] Hayward v The State of Western Australian [2025] WASCA 35 at [310].
[14] Mohammadi v Bethune [2018] WASCA 98 (Mohammadi) at [32]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]. See also Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132 at [24]; CIC Insurance Ltd v Bankstown Football Club [1997] 187 CLR 384 at 408.
In City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61 (Imago Holdings), the Western Australian Court of Appeal stated:[15]
…
The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions[.]
[15] Imago Holdings at [66] citing Mohammadi at [32].
Section 18 of the Interpretation Act 1984 (WA) (Interpretation Act) provides the following guidance:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
Although the HMP Act does not expressly refer its purpose or object, its long title states that it is '[a]n Act to deal with certain matters concerning public health'.
Definitions contained in a written law apply to the construction of the text of the written law that contain those definitions.[16] Further, words and expressions used in subsidiary legislation have the same respective meanings as in the written law under which the subsidiary legislation is made.[17]
[16] Interpretation Act, s 6.
[17] Interpretation Act, s 44(1).
Generally, the ordinary meaning of a word in a statute will prevail. In Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463 (Australian Leisure), his Honour Hall J stated:[18]
… If it is intended that a word in a statute will be used in a specific way that may not accord with ordinary usage such an intention is generally reflected in a definition in the statute. Absent such a definition, the ordinary meaning should prevail unless there is something in the context to suggest that another meaning is intended[.]
[18] Australian Leisure at [22]. This is consistent with the approach of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 at [94] in which his Honour Edelman J stated, 'where a statute employs a term in its ordinary sense, there can be no warrant for the extension of the meaning beyond its ordinary sense'.
Extrinsic material may be used to confirm the ordinary meaning conveyed by the text of a statutory provision taking into account its context in the statute and the purpose or object underlying the statute.[19] Regard may also be given to extrinsic material to determine the meaning of a statutory provision that is ambiguous or obscure.[20] Material that the Tribunal may have regard to includes relevant parliamentary debates, second reading speeches and explanatory memoranda.[21]
[19] Interpretation Act, s 19(1)(a).
[20] Interpretation Act, s 19(1)(b)(i).
[21] Interpretation Act, s 19(2).
Tribunal's consideration
The application falls within the Tribunal's review jurisdiction. The review of the respondent's decision to issue the Order is by way of a hearing de novo for the purposes of producing the correct and preferable decision based on the material before the Tribunal at the time of the review.[22] The Tribunal may make any order it considers appropriate including an order to affirm, vary or set aside the respondent's decision.[23]
[22] State Administrative Tribunal Act 2004 (WA), s 27(1) and s 27(2). The Tribunal may consider new material whether or not it existed at the time the decision was made by the respondent.
[23] SAT Act, s 29(3). The Tribunal's decision is to be regarded as, and given effect as, a decision of the respondent: SAT Act, s 29(5).
The respondent issued the Order because it considers the Unit to be a public building for the purposes of Pt VI of the HMP Act and, consequently, the Unit must satisfy the health and safety requirements for a Class 9b building under the NCC.
There was no dispute that the question for determination in this proceeding is whether the Unit is a 'public building' for the purposes of Pt VI of the HMP Act.
The expression 'public building' is defined in s 173 of the HMP Act to mean, relevantly, a building or place (or part of a building or place) where persons may assemble for educational purposes. It also means, relevantly, any building (or part of a building or other place) in which numbers of persons are usually or occasionally assembled. The words 'assemble' and 'assembled' in the definition of 'public building' are not separately defined in the Act and, consequently, 'assemble' and 'assembled' carry their ordinary meaning.
In the Macquarie Dictionary Online, the expression 'assemble' (and 'assembled') is defined as follows:
verb (assembled, assembling)
–verb (t) 1. to bring together; gather into one place, company, body or whole.
2. to put or fit (parts) together; put together the parts of (a mechanism, etc.).
–verb (i) 3. to come together; gather; meet.
The applicants contend that the concept of 'assembly' for the purposes of s 173 of the HMP Act should be interpreted in its context, including the Regulations and the NCC (which addresses the safety, in buildings, of large numbers of people).[24] In this context, they say that 'assembly' is not one of mere physical presence or visiting, but the gathering of persons together of their own volition for certain specified purposes.[25] According to the applicants, the specified purposes in s 173(a) of the HMP Act all have distinct 'gathering' type purposes, such as political rallies and conferences etc.[26] Further, it is the applicants' position that the Unit is not a Class 9b 'assembly' building because the Unit is not a place where children attend for educational purposes such as a 'school, early childhood centre, preschool, or the like'.[27] Rather, the children attend the Unit by appointment for private tutoring, and consequently, the applicants say that the Unit is akin to a consulting room, which is a Class 5 office building used for commercial purposes.[28]
[24] ts 3 and 6, 7 April 2025.
[25] First and Second Applicants' Legal Submissions, para 6 and para 7.
[26] First and Second Applicants' Legal Submissions, para 8.
[27] First and Second Applicants' Legal Submissions, para 24 to para 26.
[28] ts 6, 7 April 2025.
The applicants referred the Tribunal to the High Court authority of ICAC v Cunneen (2015) 256 CLR 1 (Cunneen). Based on that authority, it is the applicants' position that the Tribunal should have regard to the ordinary meaning of a defined term when construing it.[29] The applicants say that a public building, as it is ordinarily understood, is one which is frequented by members of the public usually without the requirement for a specific invitation, such as a shopping centre or a sporting ground.[30]
[29] First and Second Applicants' Legal Submissions, para 9 to para 12.
[30] First and Second Applicants' Legal Submissions, para 13.
The applicants accept that the definition of 'public building' does not exclude activities conducted on private property.[31] However, they contend that the definition of 'public building' should be construed in the context of the purpose of the HMP Act which deals with matters concerning public health. Whilst the concept of 'public health' is not defined in the HMP Act, the applicants say that its meaning should be guided by the definition of 'public place' in s 3 of the HMP Act which 'includes every place to which the public ordinarily have access, whether by payment of fee or not'. Consequently, it is the applicants' position that the HMP Act primarily regulates public places in ways that one would reasonably expect to be encompassed in the protection of public health and safety and not a private place used for private tutoring.[32]
[31] ts 14, 7 April 2025.
[32] First and Second Applicants' Legal Submissions, para 18.
In contrast, the respondent contends that, consistent with the ordinary meaning of 'assemble', the children who attend the Kip McGrath business at the Unit 'come together' or 'gather' for educational purposes, namely, to receive tutoring by qualified school teachers.[33] It is the respondent's position that a public building need not be a place to which the public ordinarily have access and may be private property.[34]
[33] Respondent's submissions in relation to preliminary issue, para 7 and para 8.
[34] Respondent's submissions in relation to preliminary issue, para 10 to para 12; ts 9 - 10, 7 April 2025.
In support of its position, the respondent points to the Table in reg 7(1) of the Regulations which sets out the maximum persons that may be accommodated in a public building by reference to specific uses, such as 'Conference room - unfixed seating', 'Gymnasium' and 'Meeting/conference room'. The respondent says that all of these uses may require invitation, appointment or membership for the purposes of access, and are unlikely to be places to which the public would ordinarily have access.[35]
Disposition
[35] Respondent's submissions in relation to preliminary issue, para 14; ts 10, 7 April 2025.
For the reasons that follow, I find that the Unit is a 'public building' for the purposes of Pt VI of the HMP Act.
First, the starting point in construing the expression 'public building' is the text of the HMP Act, in its context. Part VI of the HMP Act expressly defines 'public building' to mean, relevantly, a building or place (or part of a building or place) where persons may assemble for specified purposes, including educational purposes. Consistent with s 6 of the Interpretation Act, this statutory definition applies to the construction of the expression 'public building' for the purposes of Part VI of the HMP Act.
Second, the word 'assemble' (in the definition of 'public building') is not defined in the HMP Act and, consequently, it takes its ordinary meaning which is, relevantly, 'to come together; gather; meet'. Whether or not persons come together or gather at a building at their own volition, by specific invitation, or by the inducement of a private appointment or membership, is not, in my view, determinative. I find, based on the activities conducted at the Unit, that children come together or gather at the Unit for private tutoring. There was no dispute, and I find, that the usual number of people at the Unit at any one time is a total of 21, comprising one manager, four tutors, and sixteen children. Whilst neither the HMP Act nor the Regulations specify the minimum number of people that must assemble in a building for it to be considered a public building, I am satisfied that a total number of 21 persons at the Unit at any one time is sufficient to meet the ordinary meaning of 'assemble'.[36] The activities conducted at the Unit can be distinguished from a private study group or private music lessons which typically involve a limited number of persons at a residence or other building at any one time.
[36] In Clarke and Shire of Chittering [2007] WASAT 218 there was no dispute that a function centre which had a maximum accommodation limit of 20 persons was considered a public building under the HMP Act.
Third, a building (or part of a building) will fall within the meaning of a 'public building' if persons assemble at a building (or part of a building) for one of the purposes specified in the definition including, relevantly, 'educational purposes'. The expression 'educational purposes' in the definition of 'public building' is not defined in the HMP Act and, accordingly, it takes its ordinary meaning, which is:
adjective 1. relating to education
2. tending to educate.
Having regard to the form in which the private tutoring sessions are conducted at the Unit, which was agreed by the parties, I find that the purpose for which the children come together or gather at the Unit is 'educational', that is, the tutoring relates to their education or is tending to educate them. Further, in my view, the meaning of the expression 'educational purposes' extends beyond the traditional notion of a 'school' which is defined in s 3 of the HMP Act to mean and include 'any premises in or upon which children or other persons are assembled for the purpose of instruction, including religious instruction.' Nevertheless, I observe that a building (or part of a building) where children assemble for private tutoring arguably falls within the definition of a 'school' for the purposes of the HMP Act.
Fourth, a construction of 'public building' that would promote the purpose or object underlying the statutory definition is to be preferred.[37] In Cunneen, the High Court relied on the ordinary understanding of corruption to narrow the meaning of the expression 'corrupt conduct' in the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act). The High Court adopted this approach because it concluded that a broader interpretation of the expression would be inconsistent with the principal objects in s 2A of the ICAC Act, enabling the Independent Commission Against Corruption to exercise its extraordinary coercive powers in areas ranging well beyond what was intended by the legislature.[38]
[37] Interpretation Act 1984 (WA), s 18.
[38] Cunneen at [3].
There was no dispute, and I find that the purpose of Pt VI of the HMP Act and the Regulations, is to ensure that buildings (or part of a building) where persons, including children, assemble for specified purposes are safe to occupy. This finding is supported by the limit on the number of persons that may occupy a public building in reg 7(1) of the Regulations and the requirements for public buildings set out in Pt 3 of the Regulations. Whilst there is no reference to 'Tutoring' or 'Private Tutoring' in the Table in reg 7(1) of the Regulations, I find that the Table of uses is not exhaustive. The maximum number of persons that may be accommodated in a public building where no provision is made in the Table is the number approved by the Chief Health Officer (after consultation with the local government) as provided in reg 7(3) of the Regulations. Moreover, the legislature has adopted a definition of 'public building' in s 173 of the HMP Act which is broad in its scope. To construe the meaning of 'public building' narrowly by relying on the ordinary meaning of the word 'public,' as the applicants contend, does not promote the purpose of Pt VI of the HMP Act which, in the context of this proceeding, is to ensure buildings in which persons assemble for education purposes are safe to occupy.
Fifth, I do not accept the applicant's contention that the meaning of 'public building' should be constructed having regard to the definition of 'public place' in s 3 of the HMP Act, which includes 'every place to which the public ordinarily have access, whether by payment of a fee or not'. The Table of uses in reg 7 of the Regulations are not all places to which the public ordinarily have access, as many (such as a gym or conference room) would require an invitation or membership. The expression 'public building' is separately defined in Pt VI of the HMP Act and, consequently, the activities conducted at the Unit should be evaluated in the context of that definition.
Finally, the applicants say that the NCC definition of 'assembly building' supports a narrow interpretation of 'public building' where persons gather together of their own volition for certain specified purposes. I consider the NCC definitions to be of limited assistance to the task at hand, which is to construe and apply the statutory definition of 'public building' in the HMP Act. Nevertheless, I accept that buildings classified as Class 9b for the purposes of the NCC are referred to in the NCC as 'assembly buildings' which is an expression that is defined in the NCC in similar terms to a 'public building' in the HMP Act; both expressions include a building where persons may assemble for educational and other specified purposes. Notably, the second reading speech for the Health Amendment Bill, which introduced the definition of 'public building' in s 173 of the HMP Act, provides that the expression had been redefined so that it is 'more appropriately aligned' to the definition of 'assembly building' in the BCA at that time.[39]
[39] Health Amendment Bill, Second Reading, 6 June 1991, page 2871.
The NCC definition of 'assembly building' refers to a building where people may assemble for educational purposes 'in a school, early childhood centre, preschool or the like'. However, the examples given in the NCC Explanatory Information for 'assembly buildings' include, but are not expressly limited to, 'schools, early childhood centres, kindergartens, preschools and child-minding centres'.[40] It follows that the nature of 'assembly buildings' is not limited to the examples provided in the NCC and, for the purposes of the HMP Act, may extend to a building (or a part of a building) in which children gather or come together for private tutoring for the reasons I have already given.
[40] NCC 2022 Volume One - Building Code of Australia (1 May 2023), A6G10, Explanatory Information.
Having found that the Unit is a public building, I will decline to make the orders sought by the applicants.
Conclusion
I am satisfied that the Unit used by Kip McGrath for private tutoring falls within the meaning of a 'public building' because children come together or gather at the Unit for educational purposes. Consequently, the issue before the Tribunal is answered in the affirmative as follows:
(a)The Unit is a 'public building' for the purposes of Part VI of the HMP Act.
Subject to hearing from the parties, the correct and preferable decision is to dismiss the application and affirm the respondent's decision made on 6 March 2024 requiring the applicants to cease all activities at the Unit.
Orders
Subject to hearing from the parties, the Tribunal will order:
1.The application for review is dismissed.
2.The decision of the respondent made on 6 March 2024 requiring the applicants to cease all activities at Unit 6, 9 Merino Entrance, Cockburn Central, is affirmed.
3.The proceeding is listed for a directions hearing at 10.00 am on 26 May 2025 at 565 Hay Street, Perth, Western Australia.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
15 MAY 2025
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