WALLIS -v- JOHN HOLLAND PTY LTD [2024] WASCA 26 | Case summary

On or about 31 January 2019, the appellant (as an inspector) signed a prosecution notice dated 31 January 2019 charging the first respondent with an offence against s 32 of the WHS Act. The offence created by s 32 is not punishable by imprisonment. It is therefore a summary offence unless the contrary intention appears. See s 4H of the Crimes Act 1914 (Cth). No contrary intention is apparent in s 32 or any other provision of the WHS Act. The proceedings against the first respondent were commenced on the last day of the limitation period applicable to the prosecution of the offence.
On 26 July 2021, the first respondent applied to the Magistrates Court for an order that the prosecution be dismissed, alternatively permanently stayed, on the ground that the prosecution notice was invalid in that the appellant was not authorised to commence the prosecution. On 21 September 2021, Magistrate Hall dismissed the first respondent's application.
On 1 November 2021, the first respondent filed an application in the General Division of the Supreme Court for a review order in respect of Magistrate Hall's decision to dismiss the first respondent's application.
On 8 November 2022, Archer J held that the appellant was not authorised to commence the prosecution. Her Honour declared, relevantly, that the prosecution notice was invalid and that the Magistrates Court lacked jurisdiction to hear and determine the proceedings purportedly commenced by the prosecution notice. Her Honour ordered, relevantly, that there be an order in the nature of certiorari that the proceedings in the Magistrates Court be quashed.

WALLIS -v- JOHN HOLLAND PTY LTD [2024] WASCA 26 | Case summary | Zoe

[37]

The focus of statutory construction is upon the text of the provisions having regard to their context and purpose.
The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority;[5] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT);[6] Travelex Ltd v Federal Commissioner of Taxation;[7] SZTAL v Minister for Immigration and Border Protection.[8]
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd;[9] AB (a pseudonym) v Independent Broad‑based Anti‑corruption Commission.[10]
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross.[11] The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd.[12]
Section 152 of the WHS Act provides, relevantly, that the regulator 'has the following functions'. Those functions include 'to conduct and defend proceedings under this Act before a court or tribunal' (para (h)).
The phrase 'to conduct ... proceedings under this Act before a court' in s 152(h) must be understood in the relevant statutory context. The 'proceedings' to which s 152(h) refers include proceedings for an offence against the WHS Act and proceedings for a contravention of a WHS civil penalty provision. The expression 'to conduct', in the context of conducting legal proceedings, is concerned with the control or management of the proceedings. The expression has a broader connotation than merely 'to carry on' the proceedings. See Raymond v Attorney‑General;[13] Biochem Pharma Inc v Commissioner of Patents.[14] In my opinion, the phrase 'to conduct ... proceedings under this Act before a court' in s 152(h), in its ordinary and natural meaning, includes to bring proceedings for an offence against the WHS Act. It follows that to bring proceedings for an offence against the WHS Act is a function of the regulator within s 152(h).
Section 153(1) of the WHS Act provides that, subject to the Act, 'the regulator has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions'.
The effect of s 153(1) includes, relevantly, empowering the regulator, subject to the WHS Act, 'to do all things necessary or convenient to be done for or in connection with' conducting proceedings under the WHS Act, including bringing proceedings for an offence against that Act.
The grant of a power to a statutory administrative entity 'to do all things necessary or convenient to be done for or in connection with the performance of' specified functions is of substantial breadth. However, the scope of the grant of power must be interpreted having regard to the functions that the statute has conferred on the entity. See Hird v Chief Executive Officer of the Australian Sports Anti‑Doping Authority[15] and the cases there cited.
The phrase 'for or in connection with' in s 153(1) implies that a thing may be necessary or convenient to be done 'in connection with' the performance of the regulator's functions, although not necessary or convenient to be done 'for' the performance of those functions. The words 'in connection with' have a broader connotation than the word 'for'. See Berry v Federal Commissioner of Taxation.[16]
The expression 'in connection with' in a statute is of wide import and, subject to the context in which it appears (including the scope and purpose of the statute), the expression is capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote. See Berry (658 ‑ 659); Collector of Customs v Pozzolanic Enterprises Pty Ltd;[17] Re Warden Calder; ex parte Lee.[18]
The expression 'in connection with' in s 153(1) extends to matters leading up to the performance of the regulator's functions, including matters leading up to the conduct of 'proceedings under this Act before a court or tribunal' within s 152(h).
Section 230(1) of the WHS Act provides that, subject to s 230(4), 'proceedings for an offence against this Act may only be brought by' the regulator (para (a)) or 'an inspector with the written authorisation of the regulator (either generally or in a particular case)' (para (b)).
The WHS Act does not, apart from s 230(1), expressly empower the regulator to authorise an inspector (either generally or in a particular case) to bring proceedings for an offence against the Act.
Section 153(1), which empowers the regulator, subject to the WHS Act, 'to do all things necessary or convenient to be done for or in connection with' bringing proceedings for an offence against the WHS Act, must be read together with, relevantly, s 152(h) and s 230.
When that is done it is apparent that s 230(1) embodies, relevantly, two aspects. First, s 230(1) specifies that, subject to s 230(4), no person or entity, apart from the regulator or an inspector with the written authorisation of the regulator (either generally or in a particular case), may bring proceedings for an offence against the WHS Act. This aspect of s 230(1) stipulates, in effect, the persons and entities who have, and the persons and entities who do not have, standing to bring proceedings for an offence against the Act. Secondly, s 230(1)(b) empowers the regulator, by a written authorisation, to authorise an inspector (either generally or in a particular case) to bring proceedings for an offence against the WHS Act. This aspect of s 230(1) is a substantive provision which confers a power on the regulator in connection with the regulator's function under s 152(h) 'to conduct ... proceedings under this Act before a court', including to bring proceedings for an offence against the WHS Act.
Section 153(1) does not contain an exhaustive statement of the regulator's powers. Section 230(1)(b) confers an additional power.

[62]

Solomon J has developed the relevant statutory framework in detail. Rather than reproduce the entirety of the statutory framework I will focus on the aspects of the framework that are essential to my reasoning. However, these reasons should be understood in the context of the fuller statutory framework as developed by Solomon J.
The WHS Act differentiates between the regulator's functions and the regulator's powers. There is a similar differentiation throughout the Act in relation to other roles provided for by the Act. For example, the Act specifies the functions and powers of health and safety representatives (s 68). So too the Act provides for the functions and powers of inspectors (s 160). Broadly speaking, the Act adopts the language of persons 'performing' functions and 'exercising' powers (see eg s 3(1)(f), s 68(2)). Similar language is used in other statutory contexts. See, for example, s 19E, s 33 and s 34AAA of the Acts Interpretation Act.
A legislative differentiation between an administrative body's functions and powers is relatively commonplace. Ordinarily, a body's functions are concerned with its purposes, duties and activities; the body is conferred with powers to enable it to carry out those purposes, duties and activities. It will be seen, moreover, that in the context of the WHS Act (as in many other statutory contexts) the functions of the regulator interact with its powers - the general grant of power to the regulator in s 153(1) of the Act is 'to do all things necessary or convenient to be done for or in connection with the performance of its functions'. Accordingly, the regulator's general power is restricted by reference to the regulator's functions.
Turning, then, to look in more detail at the functions and powers of the regulator, pt 8 of the Act is entitled '[t]he regulator'. Division 1 of pt 8, entitled '[f]unctions of regulator', addresses functions (s 152), powers (s 153) and delegation (s 154). In terms of functions, s 152 of the WHS Act provides:

[71]

Section 230(1) of the WHS Act is a provision by which the 'contrary intention' appears for the purpose of s 13 of the Crimes Act 1914 (Cth). Section 13 of the Crimes Act provides, relevantly and in effect, that unless the contrary intention appears in the Act or regulation creating the offence, any person may institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction. In providing for a contrary intention s 230 designates those who are permitted to bring proceedings for an offence against the WHS Act. Only the limited class of persons described in s 230(1) and (4) of the WHS Act may bring proceedings for an offence against the Act.
Section 230(2) contemplates that there may be '[a]n authorisation under subsection (1)(b)' (emphasis added).
The WHS Act goes on to provide for a procedure that applies where, in relation to a particular act, matter or thing, no prosecution has been brought within a certain time and a person reasonably considers that it constitutes a particular type of offence (s 231). The person may make a request to the regulator that a prosecution be brought (s 231(1)). Where the regulator will not bring a prosecution the person may request the regulator to refer the matter to the Director of Public Prosecutions (s 231(3)). The Director must consider the matter and advise the regulator whether the Director considers that a prosecution should be brought (s 231(4)). If the regulator declines the Director's advice to bring proceedings the regulator must give written reasons for the decision not to bring proceedings (s 231(6)).
Nothing in the s 231 procedure enlarges the designated class of persons in s 230(1) and (4) who may bring proceedings for an offence against the WHS Act.
The role of an 'inspector' is provided for under the WHS Act, most particularly in pt 9 of the Act. The regulator may, by instrument, appoint certain classes of persons as an inspector (s 156). Those persons include a member of the staff of the regulator (s 156(a)). The regulator may also suspend or end such an appointment (s 159). An inspector has specified functions and powers under the Act (s 160). Those functions and powers include to investigate contraventions of the Act and to assist in the prosecution of offences (s 160(e)). Various other powers are provided for throughout pt 9. In the exercise of an inspector's compliance powers (ie the functions and powers conferred on an inspector under the Act) he or she is subject to the regulator's directions (s 162(1)).

[72]

Before the primary judge the appellant argued that s 230 itself was the source of the regulator's function and power to provide a written authorisation to an inspector to bring proceedings for an offence against the WHS Act.
The primary judge held that the relevant function was found in s 152(h) (being encompassed within the regulator's function to conduct and defend proceedings under the Act), not in s 230,[28] and the relevant power was found in s 153(1).[29] But, even if s 230 was construed to contain a relevant function, the primary judge concluded that the instrument of delegation did not delegate the power to perform that function.[30] Her Honour concluded that there was a delegation of those functions and powers contained in the listed sections, but not powers conferred by unlisted sections to perform functions contained in the specified sections.[31]
The appellant takes a different approach before this court. The appellant effectively relies on two propositions. He says:
1. Section 230(1)(b) of the WHS Act confers a function on the regulator, namely, the function of authorising inspectors to bring proceedings for an offence against the Act. The power to perform that function is found in the general power in s 153(1) of the Act.
2. The instrument of delegation effectively delegates the regulator's power to perform the function of authorising inspectors to bring proceedings for an offence against the Act to Mr Blucher as the Acting General Manager of Comcare. The delegation also, by its terms, delegates to Mr Blucher the power to perform that function.
In the latter respect, the appellant submits that the instrument of delegation expressly delegated the function under s 230(1)(b) of the WHS Act. It was a function specified in sub‑pt 2.A of sch 1 conformably with par 2 of the delegation insofar as 's 230' and 'Prosecutions' were listed therein. The word 'under', in the phrase 'the powers and functions under the following sections of the WHS Act' as preceded the table at sub‑pt A, is said to be apt to pick up the general power in s 153(1). The appellant submits that the s 153(1) power is relevantly 'under' s 230 of the WHS Act because the power attaches to the function.
The first respondent denies that the primary judge erred in any of the respects asserted in the ground of appeal. The first respondent says that:
1. On its proper construction, s 230(1)(b) of the WHS Act does not impose any function on the regulator. Nor does s 230(1)(b) confer on the regulator any power capable of delegation.
2. If it is a 'function' at all, the written authorisation of an inspector to bring proceedings for an offence against the WHS Act falls within the ambit of s 152 of the Act - in this respect the first respondent refers to both s 152(b) and s 152(h).
3. The regulator's power to give an inspector written authorisation to bring proceedings for an offence against the WHS Act is derived from the 'plenary' power (so characterised by the first respondent) conferred by s 153(1) of the Act.
4. No relevant function or power is identified, still less specified, in sub‑pt 2.A of sch 1 to the instrument of delegation. Moreover, no section of the WHS Act mentioned therein imposes on the regulator any function, nor confers any power, to provide an inspector with written authorisation to bring proceedings for an offence against the Act.
In support of their submissions the parties referred to and relied on HongkongBank of Australia Ltd v Australian Securities Commission[32] and Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission[33]. The first respondent also referred to and relied on Perpetual Trustee Co (Canberra) Ltd v Lewis[34] in support of its preferred construction of the instrument of delegation.
These, and other authorities referred to by the parties, provide useful illustrations of how the courts have approached the task of identifying relevant functions and powers and whether they have been delegated effectively by an instrument of delegation. It must, however, be understood that these authorities were concerned with different statutory regimes and different textual considerations (both as to the relevant written law and the specific instrument of delegation). In that respect the earlier authorities are only of limited assistance. The task of the court in this appeal is to construe the WHS Act and the instrument of delegation dated 24 October 2017. It is not to apply by analogy what the parties seek to derive from earlier authorities that considered similar problems in a different statutory context where the specific instrument of delegation employed different language.
In the circumstances, while I have had regard to the approaches detailed in the authorities referred to and relied on by the parties, little is accomplished by repeating what is found in those authorities. I prefer, instead, to focus on the text, context and purpose of the WHS Act and the instrument of delegation.

[74]

The WHS Act does not expressly (in the sense of 'in terms') provide that one of the regulator's functions is to authorise an inspector to bring proceedings for an offence against the Act.
Nor does the WHS Act expressly confer a power on the regulator to authorise an inspector to bring proceedings for an offence against the Act. It is, however, common ground that the regulator has such a power. Before this court the parties agreed that the power to authorise comes from the regulator's general power in s 153(1) of the Act.[35] (It should be observed that the powers under s 153(1) are not specified in sch 1 to the instrument of delegation - the only relevant reference is to s 230 of the Act.) While, in this respect, there is agreement as to the source of the relevant power, there is a contest as to the nature and source of the relevant function (or, indeed, on the first respondent's argument, whether there is a function to authorise at all). The appellant and the first respondent each posit a function, and the source for that function, that best suits their respective argument on the proper construction of the instrument of delegation.
There are four sub‑sections to s 230 of the WHS Act. They each do different work:
1. Sub‑section (1) describes who may bring proceedings for an offence against the Act and provides, subject to s 230(4), that proceedings for an offence against the Act 'may only' be brought by those persons.
2. Sub‑section (2) clarifies and extends the effect of an authorisation under s 230(1)(b) - the authorisation provides authority to continue proceedings despite amendment of the charge, warrant or summons initiating the proceedings.
3. Sub‑section (3) requires the regulator to issue and publish guidelines as to the prosecution of offences, and the acceptance of WHS undertakings, under the WHS Act. This requirement is in the nature of a duty imposed on the regulator. It is, nonetheless, undoubtedly a function that has been conferred on the regulator by the Act within the conception of s 152(i) of the Act. In this respect it can be seen that s 230 - at least in s 230(3) - confers a function on the regulator.
4. Sub-section (4) is a saving provision to avoid any suggestion that s 230(1) might affect the ability of the Director of Public Prosecutions to bring proceedings for an offence against the WHS Act.
Section 230(1) is the key provision for the purpose of the appeal. The statutory purpose or object of s 230(1) is to prescribe who may bring proceedings for an offence against the WHS Act. So understood it is not a provision creating rights or liabilities or expressly reposing functions or powers on the regulator. In limiting the persons who may bring proceedings for an offence against the Act, thus evincing a contrary intention for the purpose of s 13 of the Crimes Act, s 230(1) does not expressly confer any function or power. Section 230(1) is in the nature of a 'standing' provision - it simply identifies the persons who have the necessary standing to bring proceedings for an offence against the Act.
It was not suggested that, by providing that the regulator may bring proceedings for an offence against the WHS Act, s 230(1)(a) conferred a function on the regulator. Any such suggestion would be untenable given the express statement of the regulator's functions in s 152. There is provision, in s 152(h), that the regulator's functions include the conduct of proceedings under the Act. The breadth and generality of s 152(h) covers anything that might be thought to emerge from s 230(1)(a). The relevant function is conferred by s 152(h) rather than s 230(1)(a). Nothing in s 230(1)(a) affects the regulator's functions under the Act. That is all the more so given s 230(1)'s status as a standing provision.
Section 230(1)(b) of the WHS Act is similar in character to s 230(1)(a). There is, however, one material difference. The standing afforded to an inspector is dependent on 'the written authorisation of the regulator'.
In that respect, as a matter of necessary implication, s 230(1)(b) contemplates that the regulator may authorise an inspector to bring proceedings for an offence against the Act. Two things follow. First, it must be that the regulator is empowered under the Act to authorise an inspector to bring proceedings for an offence against the Act. The parties rely on the general power in s 153(1) as supplying the requisite power. I agree that the power to authorise an inspector to bring proceedings for an offence against the Act is sourced in s 153(1). The only other possible candidate is s 230(1)(b) itself. But this, as I have explained, is simply a standing provision - it assumes the existence of the requisite power to authorise but does not itself confer that power. Second, as has been seen, the powers that may be exercised by the regulator pursuant to s 153(1) attach to a function. Without a function of the regulator there is nothing to which a power conferred by s 153(1) can attach. So there must be a relevant function.
The first respondent argued, and the primary judge accepted, that the relevant function was that in s 152(h). I disagree. Section 152(h) is concerned with the regulator itself conducting or defending proceedings. It is thus apt to cover the sort of activity contemplated by s 230(1)(a). But authorising another to bring proceedings for an offence against the WHS Act is qualitatively different to conducting or defending proceedings under the Act oneself, even if the other person to be authorised is an inspector appointed by the regulator who is subject to the regulator's directions.
In addition, the act of authorisation is anterior to, and a necessary pre‑condition for, the conduct of proceedings for an offence against the Act where those proceedings are brought by an inspector. And, in any case, it should not be assumed that the regulator's authorisation under s 230(1)(b) will necessarily result in the conduct of any proceedings under the Act. An authorisation may, as in the present appeal, be in respect of a particular case. But it may also be a written authorisation that applies 'generally'. In this respect s 230(1)(b) contemplates that the regulator may grant an inspector a general authorisation to bring proceedings for an offence against the Act as he or she sees fit. This possibility illustrates that authorisation under s 230(1)(b) is separate and distinct from the conduct or defence of any proceedings under the Act.
For these reasons I do not accept that the regulator's function of conducting and defending proceedings under the Act takes in authorising an inspector to bring proceedings for an offence against the Act. Rather, in my view, the relevant function emerges by necessary implication from the terms of s 230(1)(b). The WHS Act, conformably with the terms of s 230(1)(b), confers on the regulator the function of providing an inspector with written authorisation to bring proceedings for an offence against the Act (either generally or in a particular case).
I acknowledge that there is, with such a function, little practical distinction between the function to be performed (ie authorising inspectors to bring proceedings for an offence against the Act) and the power to be exercised to carry out the function (ie the power to so authorise). But this is not uncommon. It is accepted that functions and powers are sometimes treated interchangeably or with blurred dividing lines.[36] And, as is shown by the result in Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission, the two may be 'inevitably intertwined'.[37]
I also acknowledge that the first respondent argued that true 'functions' have the character of duties imposed by Parliament that the regulator is obliged to perform. On this basis, according to the first respondent, s 230(1) of the WHS Act was 'wholly inapt' to be construed as imposing any function on the first respondent.[38] This submission is misdirected and must be rejected. There are four reasons why it provides no answer to the conclusion I have reached as to the relevant function that has been conferred on the regulator by the Act.
First, as a matter of language, one would not ordinarily speak of functions being imposed on an administrative body. Rather, the legislature reposes functions on the body. The first respondent's choice of language is telling. It seeks to invoke the language of duty and obligation rather than language consistent with the conferral of a function on an administrative body.
Second, the authority relied on for the submission, Majar v The Northern Land Council,[39] was one where the court was distinguishing between the specification of functions and objects.[40] In that context it is more logical to associate the notion of a function with something that an administrative body has a duty to perform. That is not the present case. The functions as listed in s 152 of the WHS Act are concerned with purposes, duties and activities, not merely duties. There is, in my view, no foundation in the text, context or purpose of the WHS Act to conclude that an activity of authorising inspectors to bring proceedings for an offence against the Act is incapable of constituting a function of the regulator for the purpose and within the meaning of that word when used in the Act.
Third, the first respondent's suggestion that functions ought to have the character of duties is inconsistent with the analysis in Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission. There the relevant function, as found by the Full Court of the Federal Court of Australia, was one of authorising persons to apply to a court for an examination order under s 597 of the then Corporations Law. Plainly there was no duty to so authorise. The absence of any duty did not prevent the Full Court accepting that a function of authorisation was relevantly reposed in the ASC. Nothing in the text, context or purpose of the WHS Act requires a different result in the present appeal.
Finally, as I have attempted to explain, it is not a case of construing s 230(1)(b) of the WHS Act as imposing (to use the first respondent's word) any function. Rather, the relevant function emerges by necessary implication from s 230(1)(b).
I am satisfied, for these reasons, that the appellant has in substance established his first proposition. I do not accept that s 230(1)(b) of the WHS Act expressly confers a function on the regulator. But, as a matter of necessary implication, it emerges from the terms of s 230(1)(b) that the Act confers on the regulator the function of providing an inspector with written authorisation to bring proceedings for an offence against the Act (either generally or in a particular case). A correlative power to perform that function is found in the general power in s 153(1) of the Act.

[81]

The purpose or object of the instrument of delegation is to delegate functions or powers under the WHS Act. That, in my view, appears from the operative part of the instrument of delegation. It is also apparent from the circumstance that the delegation states that it makes the delegations in the instrument pursuant to s 154 of the Act. Section 154(1), as has been seen, provides that the regulator may delegate a function or power under the Act. That statutory role of s 154(1) informs the purpose or object of the instrument of delegation.
The appellant seemingly relies on a more specific purported purpose or object of the instrument of delegation - the reference to s 230 and the heading 'Prosecutions' is said to support a purpose or object that, relevantly to the issues on appeal, the delegation is to enable a person occupying the position of General Manager to authorise an inspector to bring proceedings for an offence against the WHS Act.[45]
I am unable to derive that more specific purpose or object from a fair reading of the instrument of delegation in context. The purpose of the instrument of delegation - like the purpose of a statute - resides in its text and structure. Purpose must be derived from what the instrument says and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[46] The more specific purpose or object posited by the appellant assumes the legitimacy of the appellant's preferred construction which, in turn, drives the contended for purpose or object. The process of reasoning is innately circular. The more specific purpose or object cannot, in my view, be identified from the instrument of delegation read in context. There is plainly a purpose or object of delegating functions or powers under the WHS Act. The extent of that delegation is only capable of ascertainment by construction of the instrument of delegation rather than a priori assumption about the relevant purpose of the delegation.
The first respondent submitted that, on its proper construction, the reference to s 230 in sub‑pt 2.A of sch 1 to the instrument of delegation did not successfully delegate any function or power.[47]
The notice of contention having been rejected, that submission on the part of the first respondent can only be accepted if s 230 does not confer any function to be performed or provide for any power to be exercised. And, even if that was the case, the submission could only be accepted if that is the only construction open on the text of the instrument of delegation read and construed in context. If there is an available constructional choice - one that would see the effective delegation of a function or power under the WHS Act - the construction providing for an effective delegation must be preferred. That is the effect of the legislative commandment in s 15AA of the Acts Interpretation Act given the identified purpose or object of the instrument of delegation.
There is, however, a function expressly conferred by s 230(3) (see [116.3] above). This, at the least, is delegated by the relevant part of the instrument of delegation. The first respondent's submission that the instrument of delegation was not effective to delegate any function or power cannot be accepted.
What, then, of the function of providing an inspector with written authorisation to bring proceedings for an offence against the WHS Act (either generally or in a particular case) as emerges from s 230(1)(b) of the Act by necessary implication? The relevant part of the instrument of delegation has work to do even if there is no delegation of this function. But that does not answer whether, properly construed, the relevant part of the instrument of delegation extends to providing for the delegation of the performance of this function. Rather, the issue turns on whether providing a written authorisation to an inspector to bring proceedings for an offence against the WHS Act constitutes performing a function under s 230 of the Act for the purpose and within the meaning of the instrument of delegation.
In support of the appellant's first proposition senior counsel for the appellant referred to the use of 'under' in s 230(2) of the WHS Act. Senior counsel submitted that 'under' was synonymous with 'by' and was used in a context where the meaning was 'pursuant to' or 'by virtue of'.[48]
I did not understand senior counsel for the appellant to be suggesting that the use of 'under' in s 230(2) of the WHS Act had implications for the use of the same word in the instrument of delegation. Nor, in my view, could it do so; the instrument of delegation applies to many varied functions and powers under the Act and its regulations. It can hardly be supposed that in delegating functions and powers under identified statutory and other provisions the regulator had in mind the use of the word 'under' in s 230(2). But it should be remembered that s 154(1) permits the delegation of functions and powers 'under' the Act. Where, by the instrument of delegation, the same language is used (there being a delegation of functions and powers 'under' identified statutory and other provisions), the use of the word 'under' should be understood and construed consistently. That is relevant insofar as, in s 154(1), the Act provides for a beneficial power to delegate functions and powers so that the regulator may better perform its functions and exercise its powers to bring about fulfilment of the objects in s 3. That beneficial power of delegation is assisted by a broad and generous construction of the word 'under'.
Lindgren J has said that the word 'under' admits of degrees of precision on the one hand and of looseness and inexactness on the other.[49] The word 'under' has a narrower meaning than the phrases 'in connection with' or 'in relation to'. It will sometimes, but not always, be synonymous with the word 'by'. As Malcolm CJ (Anderson J and Einfeld AJ agreeing) stated in R v TKACZ:

[83]

Accordingly, the word 'under' may mean 'by or in accordance with'. It may also have a wider meaning - the word is said to be capable of 'varied relational reach' depending on context.[51] In Chan v Cresdon Pty Ltd there was a guarantee of a tenant's obligations 'under this lease'. The plurality (Mason CJ, Brennan, Deane & McHugh JJ) held that the word 'under', in the context in which it appeared, referred to 'created by, in accordance with, pursuant to or under the authority of, the lease'.[52] An obligation arising from a common law tenancy at will did not answer that description. In another contractual setting it has been held that there will be a dispute 'under' a settlement deed if the outcome of the dispute is 'governed or controlled' by the settlement deed.[53] Similarly, the words 'under a contract' in a statute may direct attention to the source of the obligation in question.[54] It has been observed that the dictionary meanings of the word 'under' are many and include 'having regard to', 'taking account of' and 'subject to the authority, control direction or guidance of'.[55]
Another possible meaning of the term 'under', when referring to a function or power 'under' an Act or a particular statutory provision, is that of 'by reason of the existence of'.[56]
I consider that a wider meaning of the word 'under', as has been accepted as being open on the use of the word, best achieves the purpose or object of s 154(1) of the WHS Act and the instrument of delegation. Such a wider meaning is, in my view, consistent with the context in which the word 'under' appears - the beneficial power of delegation is assisted by a broad and general construction of the word 'under'. In my view, when used in s 154(1) of the WHS Act and the instrument of delegation, the word 'under' means 'created by, existing by reason of, in accordance with, pursuant to or through the authority of'.
This wider meaning facilitates and better effectuates the delegation of the regulator's functions and powers. It avoids or limits the scope for uncertainty as to whether a function or power is capable of delegation or has been delegated. It is not necessary to consider fine distinctions as to whether a particular function or power is conferred 'by' a particular provision, something which would otherwise bedevil the day‑to‑day operations of those tasked with administering the WHS Act. In any case, for the reasons I have already explained, the beneficial power in s 154(1) is assisted by a broad and generous construction of the word 'under'; and the word 'under' in the instrument of delegation should be construed conformably with the use of that word in s 154(1).
The wide meaning of the word 'under' leads inevitably to the conclusion that the function of providing an inspector with written authorisation to bring proceedings for an offence against the WHS Act (either generally or in a particular case) is a function 'under' s 230 of the Act. The function is one that emerges from s 230(1)(b) of the Act by necessary implication. The relevant function exists by reason of or is in accordance with, pursuant to or through the authority of s 230.
So too, in my view, the correlative power to perform the function is a power under s 230 of the Act.
The power exercisable to perform the function of providing an inspector with written authorisation to bring proceedings for an offence against the WHS Act (either generally or in a particular case) is sourced in s 153(1) of the Act rather than s 230. But, contrary to the primary judge, I do not consider that this means that the power is not one 'under' s 230. The primary judge considered that the 'plain words' of the instrument of delegation delegated 'functions and powers contained within the sections listed, but not powers given by unlisted sections to perform functions contained in the specified sections'.[57] This, in my respectful view, involves a departure from the language of the instrument of delegation and the proper construction of that language. The text used by the instrument of delegation, in conformity with s 154(1), delegates functions and powers 'under' the various listed sections rather than functions and powers 'contained within' the listed sections. And, as I have explained, the word 'under' as used in the instrument of delegation has a wide meaning.
The relevant power is not contained within s 230. But, for the reasons I have given, the relevant function emerges from s 230(1)(b) of the WHS Act by necessary implication. The power to authorise an inspector to bring proceedings for an offence against the Act attaches to that function in such a way that the function and the power are properly characterised as being intertwined. In the circumstances, the power to authorise, albeit a power properly sourced in s 153(1), is a power 'under' s 230 of the Act for the purpose and within the meaning of the instrument of delegation. The power to authorise an inspector to bring proceedings for an offence against the Act exists by reason of or is in accordance with, pursuant to or through the authority of s 230.
It follows that, properly construed, the instrument of delegation was effective to delegate to Mr Blucher, as Acting General Manager of the Regulatory Operations Group of Comcare, the power to authorise an inspector under s 230(1)(b) of the WHS Act to bring proceedings for an offence against the Act.

[87]

The Work Health and Safety Act 2011 (Cth) (WHS Act) is an Act relating to work health and safety, and for related purposes.[58] It provides, amongst other things, for the prosecution of offences relating to workplace safety. As will be explained, a prosecution under the WHS Act may be brought by the 'regulator', or an inspector authorised by the regulator. The 'regulator' is Comcare,[59] which is a statutory corporation.[60]
Comcare is constituted by its Chief Executive Officer,[61] who, at the relevant time, was a Ms Jennifer Taylor. An inspector authorised by the regulator to bring a prosecution under the WHS Act, was thus an inspector authorised by Ms Taylor.
The appellant, Mr Wallis, was an inspector with Comcare. This appeal concerns a workplace safety prosecution under the WHS Act. The appellant brought the prosecution against the first respondent in the Magistrates Court of Western Australia in his capacity as an authorised inspector on the last day on which a prosecution could be brought (31 January 2019).
The appellant's authority to bring a prosecution against the first respondent was not conferred by Ms Taylor. Rather, it was conferred by a Mr Blucher, another senior officer of Comcare. By a document entitled 'Instrument of Delegation' (Delegation), dated 24 October 2017, Ms Taylor delegated a range of functions and powers to Mr Blucher. The appellant brought the prosecution against the first respondent on the basis that the Delegation enabled Mr Blucher to authorise the appellant to bring the prosecution.
The first respondent contended that the Delegation was ineffective to give Mr Blucher the ability to authorise an inspector to bring a prosecution. The prosecution against the first respondent was therefore brought without power. The first respondent challenged the prosecution on that basis in the Magistrates Court. The learned magistrate rejected the first respondent's position. The first respondent challenged that decision in the Supreme Court under s 36 of the Magistrates Court Act 2004 (WA). The primary judge upheld the first respondent's contention, holding that the Delegation was ineffective to enable Mr Blucher to authorise Mr Wallis to bring a prosecution. The prosecution was therefore brought without power and was required to be dismissed. It was then too late to bring a fresh prosecution. Mr Wallis appeals from the primary judge's decision, contending that the Delegation was effective, and Mr Wallis therefore had the power to bring the prosecution.
For the reasons that follow, I respectfully take a different view from the primary judge. I consider that on a proper construction of the WHS Act and the Delegation, there was an effective delegation from Ms Taylor to Mr Blucher so as to enable Mr Blucher to authorise Mr Wallis to bring the prosecution against the first respondent.

[91]

Section 3(2) provides that in furthering subsection (a), 'regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable'.
Part 2 of the WHS Act concerns health and safety duties. It sets out the health and safety duties imposed on people conducting or working in businesses and undertakings and the principles that apply to those duties. Division 5 of pt 2 provides for offences and penalties. The appellant purported to bring the prosecution against the first respondent under s 32 for failure to comply with a health and safety duty that exposed an individual to the risk of death or serious injury.
Part 7 of the WHS Act is entitled 'Workplace entry by WHS entry permit holders'. Part 7 includes various rights and obligations in respect of the holder of a 'WHS entry permit'. Part 7 also provides for civil penalty provisions for contraventions of those rights or obligations. The civil penalty provisions in Part 7 stand in contrast to the offences and penalties provided for in Part 2.
Part 8 of the WHS Act is entitled 'The regulator'. Under s 4 the regulator is Comcare, which is therein defined as 'the body corporate established under section 68 of the Safety, Rehabilitation and Compensation Act 1988' (SRC Act). The long title of the SRC Act states that it is a statute 'relating to the rehabilitation of employees of the Commonwealth and certain corporations and to workers' compensation for those employees and certain other persons, and for related purposes'. Section 69 of the SRC Act sets out functions of Comcare. Those functions are generally related to the matters to which the SRC Act is directed; primarily rehabilitation and compensation. The functions do not include the bringing or conducting of prosecutions. Section 69(g) of the SRC Act provides that Comcare's functions also include 'such other functions as are conferred on Comcare by any other Act'. The note to the provision states: 'Functions have also been conferred on Comcare by other Acts, such as ... the [WHS Act].'
Section 70 of the SRC Act provides that 'Comcare has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions'. The section is not expressed to be limited to the functions provided for in the SRC Act alone (contrast s 70B(1) of the SRC Act). Section 73B of the SRC Act provides for the delegation of Comcare's powers other than under the WHS Act. It states:

[109]

The appellant's case advanced, in substance, three propositions. First, the appellant submitted that the function of authorising an inspector was conferred by s 230(1)(b).[73] Secondly, the requisite power attaching to that function was conferred by s 153.[74] Thirdly, although the delegation did not make express reference to s 153, the text of the Delegation together with the introductory words of pt 2 of Sch 1 and its express reference to s 230, were sufficient on their proper construction to delegate the function contained in s 230 and the power conferred by s 153 to authorise inspectors to bring a prosecution.[75]
Turning to the first proposition, the appellant submitted that on a proper construction of the WHS Act, the function of authorising an inspector to bring a prosecution was contained in s 230(1)(b). Contrary to the finding of the primary judge, that function was not encompassed by s 152(h) because there is a distinction between, on the one hand, a person or entity bringing a proceeding, and on the other hand, the authorising of a different person to bring a proceeding. On the plain meaning of the statutory language, only s 230(1)(b) provides for the authorisation of inspectors. No other provision in the WHS Act referred to the appointment of an inspector to bring a prosecution. Moreover, s 152 on its own terms is not an exhaustive list of the regulator's functions. Section 152(i) refers expressly to other functions conferred by the WHS Act.
The appellant also submitted that the terms of s 230(2) provided textual support for the proposition that s 230(1)(b) provides for the function of appointing inspectors. Section 230(2) refers to '[a]n authorisation under subsection 1(b)'. The appellant contended that such language supported the contention that subsection (1)(b) confers the function of appointing inspectors.
The appellant's position was that as Part 2 of Schedule 1 to the Delegation expressly listed s 230, there could be no doubt that the relevant function was effectively delegated to the appellant under s 154. As to the second proposition and the source of the relevant power, the appellant accepted the conclusion of the primary judge (as contended for by the first respondent) that the source of power for the function of authorisation of inspectors to bring a prosecution was to be found in the plenary power conferred by s 153. This aspect of the matter was therefore common cause between the appellant and the first respondent.
The appellant contended by the third proposition that the Delegation effectively delegated the relevant power even though it did not include s 153 in the list of statutory provisions in Part 2 of Schedule 1. In that regard, the appellant drew attention to the text of the Delegation. Paragraph 2 purported to delegate powers and functions to the relevant person or persons 'to perform the functions or exercise the powers of the WHS Act ... which have been specified in Part 2' of the relevant schedule. Part 2 of Schedule 1 referred to 'The powers and functions under the following sections of the WHS Act' and listed s 230. The appellant submitted that on a proper construction, those words were apt and sufficient to include the power conferred by s 153 even though that section was not expressly listed. Section 153 was the power that attached to the function conferred by s 230(1)(b). It was the relevant power 'under' s 230 and therefore was encompassed by the Delegation on its proper construction. In short, the appellant submitted that 'the s 153 power is relevantly 'under' s 230 of the WHS Act because the power attaches to the function'.[76] Thus, the combination of the words 'the powers and functions ... of the WHS Act' and (in effect) 'the powers and functions under s 230 of the WHS Act', was sufficient.

[140]

Nevertheless, Gummow J concluded that the words were not sufficient to delegate the power that was conferred by s 11(4) of the ASC Act. In this regard, Gummow J's conclusion differed from the position adopted by Black CJ and Lockhart J. Gummow J concluded, however, that the power was conferred by the second instrument of delegation which, as noted above, contained the additional words conferring powers 'incidental' to the exercise of functions.
The appellant relied upon the decision in Mercantile Mutual in support of the submission that s 230(1)(b) confers the function of authorisation on the regulator. The appellant submitted that the effect of s 230(1)(b) is 'similar to the way the Full Federal Court assessed s 597 of the Corporations Law' as conferring the function of authorisation, but not the power.[89] The appellant submitted that there is 'a clear analogy' between s 230(1)(b) of the WHS Act and s 597 of the Corporations Law.[90]
The appellant also relied upon the decision in Mercantile Mutual in support of its contention that the Delegation was effective to delegate not only the functions of authorisation but also the relevant power, notwithstanding the absence of any express reference to s 153 of the WHS Act (which, as noted, both parties accepted was the source of the power attaching to the function). The appellant referred to the words in paragraph 2 of the Delegation 'to perform the functions or exercise the powers of the WHS Act' noting that the relevant power was conferred by the WHS Act itself, in contrast to the delegations in Mercantile Mutual where the power was conferred by a different Act (the ASC Act).[91] Referring to observations in Mercantile Mutual as to the breadth of the word 'under', the appellant submitted that the words of paragraph 2 of the Delegation together with the words 'the powers and functions under the following sections of the WHS Act' (emphasis added) were sufficient to delegate the power conferred by s 153 of the WHS Act.[92]
In contrast, the first respondent argued that the decision in Hongkongbank was consistent with its submission that s 230(1) is a mere 'machinery or procedural provision' serving the purpose explained at paragraph [199] above and does not confer an[93]function.93 The first respondent relied particularly on the passage in Hongkongbank set out at paragraph [203] above. In respect of the Delegation, the first respondent also pointed to the conclusion of Gummow J that the delegation was only effective by reason of additional words in the further delegation considered in that matter that do not app[94]r in the Delegation.94
The parties' respective positions in respect of the Hongkongbank and Mercantile Mutual decisions in this appeal reflected in large measure the submissions made before the primary judge. The primary judge concluded that s 230(1)(b) did not contain the function of authorisation of inspectors.[95] Although the primary judge considered that s 230(1)(b) was 'closely aligned' with s 597(2) of the Corporations Law,[96] her Honour reasoned that the function of authorising inspectors was encompassed by the express function of conducting proceedings conferred by s 152(h) of the WHS Act, and therefore 'the function does not need to be found in s 230'.[97]
As to the delegation of the power conferred by s 153, her Honour observed that Black CJ and Lockhart J placed emphasis on the use of both words 'by' and 'under' and, as noted above, Black CJ said expressly that the conclusion would be different if only one of those words had been used.[98] The primary judge understood both Black CJ and Lockhart J in Mercantile Mutual to have concluded that the word 'under' had an expanded connotation only because it was used in addition to the word 'by'.[99] The primary judge also observed that a less liberal construction was appropriate because the Delegation affected liabilities that included the liability to prosecution.[100] The primary judge concluded that the plain words of the Delegation could not be understood to delegate a power contained in a statutory provision that was not listed in the schedule.[101]

[148]

The ICAC Act also set out specific powers given to the Independent Commissioner. These were compulsive powers such as the power of an investigator to require the provision of information and the power of an examiner to issue a summons for appearance of a person to be examined, or for the production of documents. Section 36 provided that on completing an investigation or at any time during an investigation, the independent Commissioner 'may refer a matter to the relevant law enforcement agency for further investigation and potential prosecution'[110] and 'refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible.'[111] The ICAC Act did not contain a plenary power such as that contained in s 153 of the WHS Act. As in the WHS Act, s 16(1) of the ICAC Act provided that the Independent Commissioner 'may delegate a function or power under the Act'.[112]
Mr Bell contended that the Independent Commissioner had no power to refer the matter directly to the DPP.[113] The DPP submitted that the capacity of the Independent Commissioner to refer a matter for prosecution to the Director is conferred by s 7(1)(a)(i), and that it was not necessary for the ICAC Act to confer a specific power on the Independent Commissioner to refer a matter to the DPP because any person or entity had the capacity to do so.[114] The primary judge upheld Mr Bell's contention and considered that s 36(1) exclusively confers on the Independent Commissioner a power of referral for prosecution and confines that power to referral of a matter to the relevant law enforcement agency for eventual prosecution. The primary judge considered that the ICAC Act drew a distinction between the mere conferral of functions, addressed by s 7, and the conferral of powers such as are addressed by s 36.[115] The conferral of a function by s 7(1)(a)(i), to refer a matter for prosecution, is insufficient to confer a power to do so; the power to do so is exclusively conferred by s 36.
The Full Court overturned the decision of the primary judge. The Full Court referred to the passages in Edelsten and Mercantile Mutual regarding the distinction between functions and powers. The Full Court nevertheless explained that the expression 'function' is protean, and its meaning must be determined by context.[116] The natural reading of s 7 was that it conferred on the Independent Commissioner 'the capacity to refer a matter to the Director for Prosecution'.[117] The Full Court observed that s 7 was the only provision in the ICAC Act that identified and conferred functions on the Independent Commissioner and several provisions confer specific powers. The Full Court explained that the absence of a specific power conferred on the Commissioner did not mean that the Commissioner does not have the capacity to act to exercise a function conferred by s 7. No additional power needed to be expressed for the function authorised by s 7. Section 7 itself authorised the Commissioner to undertake those functions.[118]
The analysis of the Full Court suggests that where a statute plainly contemplates the exercise of a function by an administrative body, it may be that the provision containing the function itself confers the power and that it is not necessary to identify the express conferral of power elsewhere in the statute.[119] That may be all the more evident where the statute does not contain a provision conferring a plenary power for the exercise of functions.
Returning to the provisions of the WHS Act, the following features may be observed:

[150]

Given the clear distinction drawn by the WHS Act between functions and powers, and notwithstanding the protean nature of the notion of 'function', it is appropriate here to adopt the meaning of a function and a power explained by the Federal Court in both Edelsten and Mercantile Mutual. Having regard to the understanding and identification of functions in those cases, in my view, s 230(1) is more than a mere expression of contrary intention to address s 13 of the Crimes Act and cannot be understood as merely definitional, procedural or descriptive. In that respect, s 230(1) of the WHS Act has more substantive significance than s 597(1) of the Corporations Law, considered in Mercantile Mutual. As the primary judge observed, it is more similar to s 597(2).
Consistently with the observations of Lockhart J set out above, there is to be gleaned from s 230 a plainly discernible function of authorisation. It may be accepted that generally the bringing of a proceeding for an offence under the WHS Act is a sub-set of the function of the conduct of proceedings under the WHS Act. However, in the absence of s 230(1)(b), there would be no basis upon which an inspector would be able to bring a prosecution. Moreover, the act of authorising someone else to prosecute is conceptually and temporally distinct from prosecuting oneself. In my view, s 230(1) serves a broader purpose than merely to express the 'contrary intention' referred to in s 13 of the Crimes Act. Section 230(1)(b) provides for the function of the regulator to authorise inspectors to bring a proceeding for an offence under the WHS Act. That is fortified by the words in s 230(2), 'an authorisation under subsection (1)(b)'. The construction of s 230(1) of the WHS Act pressed by the first respondent is unduly narrow. And its reliance on the passage in Hongkongbank set out at paragraph [203] above is inapt; that passage is primarily concerned with the conferral of power, not function, and was directed to the terms of s 597(1) which are narrower than s 230(1). I also would not accept the submission advanced by the first respondent that a function denotes a form of duty that is absent from s 230(1). As I have noted, the description of functions and powers explained in Edelsten and Mercantile Mutual is apt. That description does not suggest a notion of duty.
As to the source of power, it may be that adopting the analysis in Bell, s 230 itself provides that power. That possibility is reinforced by the use of the word 'ability' in subsection (4). That would be consistent with the suggestion of Gummow J in Mercantile Mutual that a power to authorise might be conferred by implication.[120] However, in circumstances where the WHS Act expressly provides for a plenary power (in contrast to the legislation considered in Bell), I consider the better view is that the plenary power contained in s 153 is the source of power that attaches to the function conferred by s 230(1)(b). The conferral of power in s 153 is subject to the WHS Act but is otherwise expressed in broad and unqualified terms. Like s 70 of the SRC Act, s 153 is not expressed to be limited to the regulator's functions under the WHS Act. The provision reflects a legislative intention of broad application. Where the WHS Act contemplates a function to be undertaken by the regulator that is not the subject of an express conferral of power, that power is to be found in s 153. That is perhaps all the more applicable to less coercive powers (such as the power of authorising inspectors), consistently with the structure of the WHS Act referred to in paragraph [179] above.

[160]

It may also be noted that paragraph 5 of the text of the Delegation states expressly that s 46 of the Acts Interpretation Act applies to the Delegation.[123]
The court is therefore required to adopt the interpretation of the Delegation that best achieves its purpose or object. As Bell P observed in Sydney Seaplanes Pty Ltd v Page,[124] that is not so much a matter of constructional choice as legislative fiat. The learned author of Statutory Interpretation in Australia describes s 15AA as imposing a mandatory obligation to interpret legislation in a way that gives effect to its purpose or object.[125]
That legislative fiat is to find the construction that 'best achieves' the Delegation's object. In 2011, s 15AA of the Acts Interpretation Act was amended to adopt the words 'that would best achieve the purpose or object of the [Delegation]' in substitution for the words 'that would promote the purpose or object'. As explained in the explanatory memorandum relating to the amending Act, the amendment was made to accommodate the observations of Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop Ltd,[126] where their Honours explained that the previous words of the section did not provide for a construction which will best achieve the object, but rather was limited to choices between a construction that would promote the purpose or object and one that would not.[127]
That constructional exercise directs attention to the object or purpose of the Delegation. In my view, the evident object or purpose of the Delegation was to delegate to others the ability to perform functions and exercise powers under the WHS Act. The court is required to adopt an interpretation of the Delegation that best achieves that object. Of course, that does not permit the court to find an interpretation that the words simply cannot bear. However, if the words are capable of conveying a meaning that achieves the identified object, then that is the construction that the court must adopt.
I have concluded that the function of authorising inspectors to bring a prosecution is contained in s 230(1) of the WHS Act. Section 230 was expressly listed in the Schedule. There can be no question, therefore, that the Delegation effectively delegated the functions contained in s 230, including the function in s 230(1) of authorising inspectors. The remaining issue is whether the Delegation effectively delegated the power provided by s 153, notwithstanding the absence of any express reference to that section.
In my view, the construction preferred by the primary judge was open and available to her Honour, but it was a narrow reading of the Delegation. The Delegation is to be read as a whole. In that regard, I note the following features.
First, at the outset in paragraph 1 the Delegation is said to be made pursuant to s 154 of the WHS Act. As explained, s 154(1) of the Act gives the regulator a broad and fairly unconstrained capacity to delegate 'a power or function under [the WHS Act]'. Secondly and as noted, the substantive text in paragraph 2 of the Delegation provides for the delegation of the ability 'to perform the functions or exercise the powers of the WHS Act' which are specified in Part 2. Thirdly, the list of sections in Part 2 of Schedule 1 is introduced by the words 'the powers and functions under the following sections of the WHS Act'.
The reference to s 230 in the list of sections in Part 2 of Schedule 1 must be read in the context of those features and in the context of the WHS Act as a whole, including the objects set out in s 3(1) and with regard to the principle in s 3(2). Adapting the observation of Black CJ in Mercantile Mutual, it would be odd, in that context to arrive at a result whereby a function that cannot be discharged without a power had been delegated, but the power required to make the delegation of that function meaningful had not been delegated. And to adapt the observation of Lockhart J, s 153 is a conferral of incidental power that assumes the existence of functions to which it can attach. Without functions such as that conferred by s 230(1)(b), there is nothing to which the power in s 153 can attach; the sections are intertwined, albeit that one is the function and the other is the power.
Further, as explained, s 230 contains the relevant function and was undoubtedly specified. In my view the incidental power conferred by s 153 that attaches to the function in s 230(1)(b) may be said to arise 'under s 230' so as to enable Mr Blucher to perform the relevant function. The exact meaning of the word 'under' depends upon the context in which it appears.[128] It may first be observed that s 154 itself provides for the delegation of a power or function 'under' the Act. Although Black CJ and Lockhart J in Mercantile Mutual found an expanded meaning in the word 'under' when combined with the word 'by', it is consistent with the reasoning of at least Black CJ to observe that in its natural sense, the word 'under' carries a broader connotation than the word 'by'. The natural meaning of the word 'under' includes the notion of 'in accordance with'.[129] In my view, in light of the object of the Delegation and the intertwined nature of the power conferred by s 153 and the function contained in s 230(1), the word 'under' in this context should be given a wide meaning. In the context referred to above, the power conferred by s 153 of authorising an inspector to bring a prosecution may be said to be 'in accordance with' the function to which it attaches, that is, the function in s 230(1). It follows, in my view, that a natural reading of the Delegation is capable of conveying an intention to delegate the function and any necessary attaching power so as to enable Mr Blucher to authorise inspectors to bring a prosecution. As that is the interpretation that best achieves the object of the Delegation, it is the construction that the court is required to adopt.
In support of its position, the first respondent referred to two cases. The first was the decision of Miles CJ in Perpetual Trustee Company (Canberra) Ltd v Lewis (as Delegate for the Commissioner for ACT Revenue).[130] Section 18 of the relevant legislation provided that the Commissioner for Taxation had power in defined circumstances to issue an instrument requiring a person to do a number of things:[131]

WALLIS -v- JOHN HOLLAND PTY LTD [2024] WASCA 26 (22 March 2024)

At a glance

Court

Decision date

Before

Source

Judgment (255 paragraphs)

Legislation Cited (9)

Cases Cited (28)