Councils carry out their operational functions by way of powers and functions delegated to their authorized officers from the Chief Executive Officer (CEO).  If delegation of a power or a function is found not to exist where previously thought to, there could be wide reaching consequences for operational decision making, in particular, jeopardising Council’s enforcement and prosecution function.

In John Holland Pty Ltd v Wallis [2022] WASC 358, the Applicant (John Holland) sought a review of a decision by Magistrate Hall in the Western Australia Magistrates’ Court dismissing its application to stay a prosecution brought against it, on the basis that the prosecution notice (which commenced the prosecution proceeding) was invalid. John Holland argued that the prosecution notice was invalid because the Informant (Mr. Wallis) was not properly authorised to commence the proceeding against it under section 32 of the Work Health and Safety Act 2011 (Cth) (WHS Act).

The Power

In reviewing the Magistrates’ decision, Archer, J in the Supreme Court considered the source of the power to bring the prosecution.

Section 230 of the WHS Act provides that proceedings for an offence against the WHS Act can only be brought by either: the regulator (Comcare); an inspector with written authorisation of the regulator; or the Director of Public Prosecutions.

Mr Wallis argued that the source of the power to bring the proceedings arose by necessary implication, on the basis of section 230 of the WHS Act, which was contained in the Delegation Instrument. That is, if Mr Wallis has written authorisation, that written authorisation, by necessary intendment, came from Comcare (the s.230 power).

John Holland argued the source of the power to bring proceedings is contained in section 153(1) of the WHS Act which gives Comcare a general power to “do all things necessary or convenience to be done for or in connection with the performance of her functions (the s.153 power). Section 152 lists the functions of Comcare, which includes the function in s.152(h) for Comcare to conduct and defect proceedings under the Act.

The Delegation

At the relevant time, Ms. Taylor was CEO of Comcare.  Ms. Taylor delegated her powers and functions under various provisions of the WHS Act to Mr. Blucher, the then Acting General Manager of Regulatory Operations Group of Comcare (Delegation Instrument).  The provisions listed on the Delegation Instrument included s. 230 but did not include s.153. Sometime later, Mr. Blucher provided written authorisation to Mr. Walls (an inspector within the meaning of the WHS Act) to commence proceedings against John Holland for an offence under s 32 of the WHS Act.

John Holland argued because the provisions listed in the Delegation Instrument did not include s.153, the power to authorise Mr. Wallis had not delegated.  Therefore, Mr. Blucher’s authorisation was not an authorisation of ‘the Regulator’ as required in s.230. As such, Mr. Walls did not have power to commence the prosecution.

Mr. Wallis argued that s.230 gives the CEO the power to give written authorisations to an inspector to commence prosecutions. As such, the delegation by the CEO to Mr. Blucher of the powers and functions in s.230 included that power.

Alternatively, Mr. Wallis argued, even if the power to give written authorisation is not contained in s 230, the function is and if the function is, then the powers to perform the function, including the powers in s.153, by necessary intendment.

The Issue before the Court

The critical issue is whether Mr. Wallis had the written authority of the Comcare to commence the prosecution.  If he did not have written authority, he did not have power to commence the prosecution and as such, the Magistrates’ Court did not have jurisdiction to deal with the prosecution and Magistrate Hall’s dismissal of the application to stay the prosecution involved jurisdictional error. The remedy for jurisdictional is an order quashing the criminal proceeding.

In those circumstances, the further prosecution of John Holland would be statute barred because prosecutions under the WHS Act must be commenced within two years after the offence first comes to the notice of Comcare. The prosecution notice signed by Mr. Wallis, was signed on the last possible day to commence the proceeding.

The Court’s Decision

In making its decision, the Court relied heavily on the proper construction of the Delegation Instrument.  The Court held that given such instruments were not necessarily drafted with precision, the terms of the instruments should be fairly, but not over-generously construed.

In particular, Archer, J held:

1. the Delegation instrument delegated to Mr. Blucher ‘any and all of the functions and powers under s.230 of the WHS Act.’ This is because, adopting a plain reading, the delegation instrument contained a schedule titled ‘Functions and Powers’ with various provisions listed underneath alongside various officers’ names.
2. s.230 does not however confer a power to authorise an inspector to commence proceedings. The source of the power to authorise an inspector to commence proceedings is found in s.153 and the Delegation Instrument, does not include s.153.
3. the function of authorising an inspector to commence proceedings is also not contained in s.230. This is because the words of s.152(h) more naturally support a construction that it includes the function of authorising inspectors; and
4. s.230 cannot be construed as also containing the function of commencing proceedings by necessary intendment, in light of the wording of the function in s.152(h). Therefore, the Delegation Instrument did not carry with it the powers in s.153 by necessary intendment when it delegated to Mr. Blucher ‘any and all of the functions and powers under s.230 of the WHS Act’.

Accordingly, Archer, J held that the Delegation Instrument did not delegate the power to authorise inspectors.

Key Takeaways – go back to basics

1. What is unusual about this case is that Counsel for John Holland was focused on a wholesale review of the powers and functions available to the Informant to bring the proceeding in the first place, rather than reliance upon an assumption that because charges had been issued, that the Informant necessarily had the power to do so. Counsel in this case undertook a thorough review of the Informant’s purported exercise of power, by checking that the source of power to bring the prosecution was actually delegated to the Informant.  There is a good lesson to be learnt about the operation of the assumption that just because an Informant has brought countless proceedings in the past without challenge, doesn’t necessarily mean they in fact have power to do so.
2. Go back to basics and consider, via a checklist or similar, that the sources of statutory powers and functions have been appropriately delegated. This is especially important when departmental staff changes occur.
3. When considering commencing prosecution proceedings ensure the named Informant is appropriately authorised to bring proceedings before the proceedings are commenced.
4. Check statutory time limits for bringing proceedings and where possible, bring the proceeding early.

If you have any questions or require any assistance in this regard, don’t hesitate to call us.