1. 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]
2. 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]
3. 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]
4. 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]
5. 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]

1. For the reasons that follow, I find that the Unit is a 'public building' for the purposes of Pt VI of the HMP Act.
2. 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.
3. 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.
4. 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.

1. 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.
2. 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]
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.
4. 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.
5. 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]
6. 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.
7. Having found that the Unit is a public building, I will decline to make the orders sought by the applicants.

1. 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.

1. 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.

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.

[1] Statement of issue to be determined and agreed facts filed by the parties on 11 February 2025 (Agreed facts).

[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).

[9] NCC 2022 Volume One - Building Code of Australia (1 May 2023), A6G10.

[10] NCC 2022 Volume One - Building Code of Australia (1 May 2023), A6G10, Explanatory Information.

[11] NCC 2022 Volume One - Building Code of Australia (1 May 2023), Schedule 1 Definitions, Glossary.

[12] NCC 2022 Volume One - Building Code of Australia (1 May 2023), Schedule 1 Definitions, Glossary.

[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.

[15] Imago Holdings at [66] citing Mohammadi at [32].

[16] Interpretation Act, s 6.

[17] Interpretation Act, s 44(1).

[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'.

[19] Interpretation Act, s 19(1)(a).

[20] Interpretation Act, s 19(1)(b)(i).

[21] Interpretation Act, s 19(2).

[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).

[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.

[29] First and Second Applicants' Legal Submissions, para 9 to para 12.

[30] First and Second Applicants' Legal Submissions, para 13.

[32] First and Second Applicants' Legal Submissions, para 18.

[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.

[35] Respondent's submissions in relation to preliminary issue, para 14; ts 10, 7 April 2025.

[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.

[37] Interpretation Act 1984 (WA), s 18.

[39] Health Amendment Bill, Second Reading, 6 June 1991, page 2871.

[40] NCC 2022 Volume One - Building Code of Australia (1 May 2023), A6G10, Explanatory Information.