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Stone v Guli

 

[2020] QCA 288

SUPREME COURT OF QUEENSLAND

CITATION:

Stone v Guli; Stone v Smith; Stone v Mount Isa Mines Limited & Anor [2020] QCA 288

PARTIES:

In Appeal No 6621 of 2020:

MARK DOUGLAS STONE

(appellant)

v

NATHAN LEIGH GULI

(respondent)

In Appeal No 6622 of 2020:

MARK DOUGLAS STONE

(appellant)

v

ASHLEY ROBIN SMITH

(respondent)

In Appeal No 6623 of 2020:

MARK DOUGLAS STONE

(appellant)

v

MOUNT ISA MINES LIMITED

ACN 009 661 447

(first respondent)

MICHAEL WESTERMAN

(second respondent)

FILE NO/S:

Appeal No 6621 of 2020

Appeal No 6622 of 2020

Appeal No 6623 of 2020

ICQ No C/2019/19

ICQ No C/2019/20

ICQ No C/2019/21

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeals

ORIGINATING COURT:

Industrial Court at Brisbane – [2020] ICQ 6 (Martin J)

DELIVERED ON:

15 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2020

JUDGES:

McMurdo and Mullins JJA and Davis J

ORDER:

Appeals dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – OFFENCES – OTHER PARTICULAR CASES – where the appellant, who was the Executive Director of the Department of Natural Resources and Mines, swore complaints against each of the respondents alleging breaches of the Mining and Quarrying Safety and Health Act 1999 (Qld) (MQSHA) – where the complaints were purportedly made pursuant to a delegation to the appellant from the Director General (the chief executive) of the department – where each of the respondents filed an application in the Industrial Magistrates Court and subsequently the Industrial Court seeking an order that the complaints be struck out for want of jurisdiction – whether the appellant had power to take proceedings against the respondents – whether the specific power of authorisation in the MQSHA impliedly limited the power of delegation so the power in the chief executive could not be delegated – whether the power of the chief executive is a power capable of delegation

Acts Interpretation Act 1954 (Qld), s 4, s 27A, s 42

Coal Mining Safety and Health Act 1999 (Qld), s 73C

Industrial Relations Act 2016 (Qld), s 554, s 556, s 569

Justices Act 1886 (Qld), s 42, s 53

Mining and Quarrying Safety and Health Act 1999 (Qld), s 234, s 257

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited

Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9, considered

Attorney General (NSW) v Built NSW Pty Ltd (2013) 239 IR 102; [2013] NSWCCA 299, cited

Cross Country Realty Pty Ltd v Peebles [2007] 2 Qd R 254; [2006] QCA 501, considered

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, cited

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, considered

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59, considered

Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400; [1998] FCA 831, cited

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17, cited

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50, considered

Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32, cited

R v A2 (2019) 93 ALJR 1106; [2019] HCA 35, cited

R v Wallis (1949) 78 CLR 529; [1949] HCA 30, cited

Re Reference Under s 11 of Ombudsman Act 1976 for an Advisory Opinion: Ex parte Director-General of Social Services (1979) 2 ALD 86; [1979] AATA 34, considered

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, cited

COUNSEL:

In Appeal No 6621 of 2020:

S J Keim SC, with P J Wilson, for the appellant

K A Mellifont QC, with A D Scott, for the respondent

In Appeal No 6622 of 2020:

S J Keim SC, with P J Wilson, for the appellant

C J Murdoch QC for the respondent

In Appeal No 6623 of 2020:

S J Keim SC, with P J Wilson, for the appellant

P Ambrose QC, with M Brooks, for the respondents

SOLICITORS:

In Appeal No 6621 of 2020:

Holding Redlich Solicitors for the appellant

Herbert Smith Freehills for the respondent

In Appeal No 6622 of 2020:

Holding Redlich Solicitors for the appellant

DWF Australia for the respondent

In Appeal No 6623 of 2020:

Holding Redlich Solicitors for the appellant

Minter Ellison for the respondents

  1. [1]
    McMURDO JA:  I agree with Davis J.
  2. [2]
    MULLINS JA:  I agree with Davis J.
  3. [3]
    DAVIS J:  The objects of the Mining and Quarrying Safety and Health Act 1999 (MQSHA), as its name suggests, include to “protect the safety and health of persons at mines”.[1]  It does this by imposing safety obligations upon persons associated with the operation of mines.  One way of enforcing those obligations is the creation of criminal offences for breach.
  4. [4]
    The appellant swore complaints under the Justices Act 1886 against each of the respondents alleging the commission by them of offences against the MQSHA.
  5. [5]
    It was unsuccessfully contended by the respondents before an Industrial Magistrate that the appellant had no authority to commence the criminal proceedings and so the Industrial Magistrates Court had no jurisdiction to hear the complaints.[2]  On appeal to the Industrial Court of Queensland, the respondents’ arguments were accepted and the complaints were struck out for want of jurisdiction.[3]  The appellant appeals from that decision and seeks to reinstate the orders of the Industrial Magistrates Court.

Background

  1. [6]
    At the material time, the appellant, Mr Stone, was the Executive Director of the Department of Natural Resources and Mines (the department) and James Purtill was the Director General which is also the position of chief executive.
  2. [7]
    On 29 August 2017, Mr Purtill delegated powers to the appellant.  The delegation was in writing, relevantly as follows:

DEPARTMENT OF NATURAL RESOURCES AND MINES

Mining and Quarrying Safety and Health Act 1999

Mining and Quarrying Safety and Health Regulation 2017

MINING AND QUARRYING SAFETY AND HEALTH DELEGATION (NO 1) 2017

Power to Delegate

  1. Under section 257(1) of the Mining and Quarrying Safety and Health Act 1999 (the Act), the chief executive administering the Act may delegate the chief executive’s powers under the Act to an appropriately qualified public service employee.

Powers Delegated

  1. I delegate the power of the chief executive to appoint an officer or employee of the public service as an inspector or an inspection officer under section 122(1) of the Act to the Chief Inspector of Mines.
  2. I delegate the powers of the chief executive under the provisions of the Act and Mining and Quarrying Safety and Health Regulation 2017 (the Regulation) as specified in Column 1 of the Schedule to the holders of the offices specified in Column 3 of the Schedule.
  3. The description of the power delegated by the chief executive in Column 2 of the Schedule is a summary of the chief executive’s power and is not to be relied upon as a statement of the extent of the power delegated. The officer or holder of office to whom power is delegated must, in each case, refer to the Act or Regulation for the full text of the relevant section of the Act or Regulation.
  4. This delegation commences on 1 September 2017 or upon execution, whichever is the later.

This delegation is made by James Purtill, Director-General, Department of Natural Resources and Mines:

Signed:

James Purtill

Director-General[4]

Department of Natural Resources and Mines

Dated: [29/8/17]

SCHEDULE

Mining and Quarrying Safety and Health Act 1999 (the Act)

Mining and Quarrying Safety and Health Regulation 2017 (the Regulation)

Column 1

Sections of the Act and Regulation containing Powers Delegated

Column 2

Description of Power Delegated by Chief Executive

Column 3

Office

Mining and Quarrying Safety and Health Act 1999

All sections of the Act

All the powers of the chief executive under the Act

Deputy Director-General

Executive Director

…”[5]

  1. [8]
    The respondent, Mount Isa Mines Limited (MIM), operates a copper mine (the mine).[6]  MIM allegedly employed the respondent, Michael Westerman, as Site Senior Executive[7] for the mine, the respondent, Nathan Leigh Guli, as the Mine Superintendent[8] and the respondent, Ashley Robin Smith, as Electrical Supervisor-Secondary[9] at the mine.
  2. [9]
    By the MQSHA, safety obligations are imposed upon persons who hold the positions held by each respondent.[10]
  3. [10]
    On 23 February 2016, at the mine, a gas cylinder exploded badly injuring a Mr Dimes who was working as an electrician.
  4. [11]
    On 22 September 2017, the appellant swore complaints against each respondent.[11]  Those complaints alleged various offences said to be committed by breach of safety obligations.  Consequent upon the complaint, a Justice of the Peace issued summonses[12] requiring the appearance of each respondent in the Industrial Magistrates Court to answer the complaints.
  5. [12]
    It is unnecessary to descend into an analysis of the charges.  Each complaint contained the following:

“THE COMPLAINT OF MARK DOUGLAS STONE of 1 William Street, Brisbane in the State of Queensland, a public officer within the meaning of section 142A of the Justices Act 1886 and a person delegated the powers of the Chief Executive under section 257(1) of the Mining and Quarrying Safety and Health Act 1999, made this 22nd day of September 2017 before the undersigned, a Justice of the Peace for the said State, who says that: [various charges followed]”[13]

  1. [13]
    Clearly enough, the complaints are purportedly sworn by the appellant pursuant to powers delegated to him by the chief executive pursuant to s 257 of the MQSHA.
  2. [14]
    All the respondents appeared in the Industrial Magistrates Court at Mount Isa pursuant to the summonses.
  3. [15]
    On 8 March, 8 April and 16 April 2019, just after the third anniversary of the accident which injured Mr Dimes, applications were filed by each respondent in the Industrial Magistrates Court seeking the dismissal of the criminal proceedings on the basis that the appellant did not have the authority to swear the complaints and therefore the Industrial Magistrates Court did not have jurisdiction to hear them.
  4. [16]
    The Industrial Magistrate dismissed the applications on 1 July 2019.[14]  Her Honour held that s 257, and the delegation made by Mr Purtill, authorised the appellant to swear the complaints.
  5. [17]
    Appeals from that decision to the Industrial Court were filed on 11 and 12 July 2019.[15]  The appeals were allowed and the complaints were dismissed,[16] it being held that the power of the chief executive to swear complaints could not be delegated by force of s 257.
  6. [18]
    That decision is the subject of the current appeal to this court.[17]  Appeals to this court from the Industrial Court are limited to appeals grounded in errors of law or excess or want of jurisdiction.[18]  The challenge here is based on alleged errors of the Industrial Court in construing certain sections of the MQSHA.  If made out, the appellant would establish an error of law.

Mining and Quarrying Safety and Health Act 1999

  1. [19]
    Since the swearing of the complaints by the appellant, the MQSHA has been amended.  What appear below are the provisions as they stood at the time the complaints were sworn and the summonses issued.  Section 257, which is contained in Part 17 of the MQSHA, is the provision under which the delegation relied upon by the appellant was made.  That section provides:

257 Delegations

  1. (1)
     The Minister or chief executive may delegate his or her powers under this Act to an appropriately qualified public service employee.
  1. (2)
     In this section—

appropriately qualified includes having the qualifications, experience or standing appropriate to exercise the power.

Example of standing—

a person’s classification level in the public service

  1. [20]
    Part 17 is headed “Administration”.  In some respects, that is misleading.  Part 17 only contains five sections.[19]  There is the general delegation power which is s 257.  Section 258 deals with the delegation of the chief inspector’s powers.  Section 259 empowers the chief executive to require certain persons to provide information.  Section 260 compels the chief executive to maintain certain records and s 261 entitles the chief inspector to approve forms.  Many other provisions outside Part 17 concern the administration of both the MQSHA and the department.
  2. [21]
    The office of chief executive is not created by the MQSHA, although the chief executive is referred to in the Act and various powers and obligations are conferred upon him.  The dictionary provides as follows:

chief executive means the chief executive of the department in which this Act is administered.

Note—

This is also the law under the Acts Interpretation Act 1954, section 36 but, because of the particular nature of this Act, is included here to avoid confusion with the chief executive of, for example, a mining company.

  1. [22]
    The reference in s 257 to “the Minister” is a reference to the minister of the Crown administering the MQSHA.[20]  The MQSHA grants various powers[21] to, and imposes various obligations upon the Minister.
  2. [23]
    Two officers are referred to in the delegation, namely the Deputy Director-General and the Executive Director.  Neither are referred to in the MQSHA.  They are persons who hold those offices within the department which administers the MQSHA.
  3. [24]
    As already observed, the MQSHA places safety and health obligations on various persons.  Section 31 then creates an offence of failing to discharge that obligation.  It provides:

31 Discharge of obligations

A person on whom a safety and health obligation is imposed must discharge the obligation.

Maximum penalty—

  1. (a)
     if the contravention caused multiple deaths—2000 penalty units or 3 years imprisonment; or
  1. (b)
     if the contravention caused death or grievous bodily harm—1000 penalty units or 2 years imprisonment; or
  1. (c)
     if the contravention caused bodily harm—750 penalty units or 1 year’s imprisonment; or
  1. (d)
     if the contravention involved exposure to a substance that is likely to cause death or grievous bodily harm—750 penalty units or 1 year’s imprisonment; or
  1. (e)
     otherwise—500 penalty units or 6 months imprisonment.”
  1. [25]
    Part 14 deals with legal proceedings.  Division 2 of Part 14 deals with proceedings for offences.  Sections 234, 235 and 236 are as follows:

234 Proceedings for offences

  1. (1)
     A prosecution for an offence against this Act is by way of summary proceedings before an industrial magistrate.
  1. (2)
     More than 1 contravention of a safety and health obligation under section 31 may be charged as a single charge if the acts or omissions giving rise to the claimed contravention happened within the same period and in relation to the same mine.
  1. (3)
     A person dissatisfied with a decision of an industrial magistrate in proceedings brought under subsection (1) who wants to appeal must appeal to the Industrial Court.
  1. (4)
     The Industrial Relations Act 2016 applies, with necessary changes, to a proceeding before an industrial magistrate brought under subsection (1) and to a proceeding on appeal before the Industrial Court brought under subsection (3).
  1. (5)
     Proceedings for an offence against this Act may only be taken by—
  1. (a)
     the commissioner; or
  1. (b)
     the chief executive; or
  1. (c)
     another appropriately qualified person, with the written authorisation of the chief executive, either generally or in a particular case.
  1. (6)
     An authorisation under subsection (5)(c) is sufficient authority to continue proceedings in any case where the court amends the charge, warrant or summons.
  1. (7)
     In this section—

person dissatisfied with a decision in a proceeding means—

  1. (a)
     a party to the proceeding; or
  1. (b)
     a person bound by the decision.

235 Recommendation to prosecute

  1. (1)
     The following persons may recommend to the commissioner that there be a prosecution for an offence against this Act—
  1. (a)
     an inspector;
  1. (b)
     a district workers’ representative;
  1. (c)
     a site senior executive.
  1. (2)
     Subsection (1) does not limit the commissioner’s power to prosecute.

236 Limitation on time for starting proceedings

A proceeding for an offence against this Act must start within the latest of the following periods to end—

  1. (a)
     1 year after the commission of the offence;
  1. (b)
     6 months after the offence comes to the complainant’s knowledge but 3 years after the commission of the offence;
  1. (c)
     if the offence involves a breach of an obligation causing death and the death is investigated by a coroner under the Coroners Act 2003—2 years after the coroner makes a finding in relation to the death.”
  1. [26]
    The office of “commissioner” (referred to in s 234(5)) is not created by the MQSHA.  The commissioner referred to in the MQSHA is the Commissioner for Mine Safety and Health under the Coal Mining Safety and Health Act 1999.[22]
  2. [27]
    Section 73C of the Coal Mining Safety and Health Act 1999 identifies the functions of the Commissioner as follows:

73C Commissioner’s functions

The functions of the commissioner are—

  1. (a)
     to advise the Minister on mine health and safety matters generally; and
  1. (b)
     to fulfil the roles of chairperson of the coal mining safety and health advisory committee and chairperson of the mining safety and health advisory committee under the Mining and Quarrying Safety and Health Act 1999; and
  1. (c)
     to monitor and report to the Minister and to Parliament on the administration of provisions about safety and health under this Act and other mining legislation; and
  1. (d)
     to perform the functions given to the commissioner under the provisions of this Act and other mining legislation.”
  1. [28]
    The MQSHA grants various powers[23] to and imposes various obligations upon the Commissioner.

Decision of the Industrial Court

  1. [29]
    Two separate but related arguments were raised by the present respondents and accepted in the Industrial Court.
  2. [30]
    Firstly, it was observed that s 257 identified the powers which could be delegated by the minister or chief executive as “powers under [the MQSHA]”.[24]  The Industrial Court held that the “power” to take proceedings is not a power “under” the MQSHA.[25]  The Industrial Court held that “under” was synonymous with “conferred by”[26] and that the power to prosecute was not conferred by the MQSHA.[27]  The court held that the power to “take proceedings”[28] was a power conferred by the common law and/or by s 42 of the Acts Interpretation Act 1954, not by s 234.[29]  Section 42 of the Acts Interpretation Act 1954 provides:

42 Any person may prosecute etc.

Any person may take a proceeding for the imposition or enforcement of a penalty, or the making of a forfeiture order, under an Act.”

  1. [31]
    The Industrial Court held that s 234 of the MQSHA did not confer any power but restricted the class of persons who could exercise the common law power to those listed in paragraphs 234(5)(a), (b) and (c).[30]
  2. [32]
    The appellant, both in the Industrial Court and here, submitted that the term “powers under [the MQSHA]” as it appears in s 257 ought not to be read as identifying only powers, the exclusive source of which is the MQSHA.  It was submitted that a broader meaning ought to be attributed to the term, namely to identify powers “beneath and covered by” the MQSHA.  It was submitted that s 234 removed the right of persons to take proceedings for offences against the MQSHA, and regulated who could take proceedings.  It did so by exempting the persons listed in s 234(5) from the prohibition, thus empowering them to take proceedings.  In that way, it was submitted, the power to prosecute is a power “under the [MQSHA]”.  That submission was rejected by the Industrial Court.[31]
  3. [33]
    Secondly, it was submitted by the respondents and accepted by the Industrial Court that the power of delegation conferred by s 257 was of a general nature while the power of authorisation, in s 234 was specific to the taking of criminal proceedings.  This, the Industrial Court held,[32] enlivened the principles explained in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia[33] and the often quoted passage:

“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”[34]

  1. [34]
    The Industrial Court held that the specific power of authorisation in s 234 impliedly limited the general power of delegation such that it was not available to the chief executive to delegate to the appellant the power the chief executive obtained through s 234(5)(b) to commence the proceedings against the respondents.  Any power of the appellant to take proceedings could only come through an authorisation specifically made under s 234(5)(c).[35]  It was not argued by the appellant either in the Industrial Court or in this court that the delegation expressed to be made pursuant to s 257 was an authority for the purposes of s 234(5)(c).
  2. [35]
    The appellant’s submission to the Industrial Court was that the notion of a delegation of a power is different to an authorisation to do something.  A delegation enables the delegate to stand in the shoes of the principal and exercise the principal’s power.  An authorisation authorises the person authorised to exercise a power vested in him or her.  Further, it was submitted that s 234(5)(c) imposed no restrictions upon the exercise of the power of authorisation that were inconsistent with the power of delegation under s 257.  Therefore, it was submitted, the chief executive could proceed by one of two paths.  Firstly, he could delegate, pursuant to s 257, the power vested in him by s 234(5)(b).  Alternatively, he could authorise the taking of proceedings pursuant to s 234(5)(c).  That submission was rejected.

The current appeal

  1. [36]
    The notice of appeal raises seven different complaints about the judgment of the Industrial Court.  All, one way or another, challenge the conclusion that, on a proper construction of the MQSHA, the appellant did not have the right to take proceedings against the respondents if that right was purportedly sourced only in a delegation from the chief executive under s 257.  The correctness of that conclusion is the only issue raised by the appeal.  There is no need to address that point by reference to the various grounds of appeal.
  2. [37]
    Ultimately, the disposal of the appeal turns on the construction of the MQSHA, in particular, ss 234 and 257.  However, two particular issues arose, as was appreciated by the Industrial Court.  The first was whether the specific power of authorisation in s 234(5)(c) impliedly limited the power of delegation in s 257 so the power in the chief executive in s 234(5)(b) could not be delegated pursuant to s 257.  The second is whether the power of the chief executive in s 234(5)(b) is a power capable of delegation by the terms of s 257.

The impact of the Anthony Hordern principle

  1. [38]
    Section 234(5) relevantly provides:
    1. (a)
      the authority may be given by the Commissioner[36] or the chief executive;[37]
    2. (b)
      the authority must be a “written authorisation”;
    3. (c)
      the authority must be in favour of “another appropriately qualified person”.[38]
  2. [39]
    Section 257 relevantly provides:
    1. (a)
      the power may be delegated by either the minister or the chief executive;
    2. (b)
      the power may be delegated to a “appropriately qualified public service employee”.[39]
  3. [40]
    Section 27A of the Acts Interpretation Act 1954 concerns the delegation of functions or powers.  By s 27A(3):

27A Delegation of functions or powers

  1. (3)
     The delegation, or a revocation of the delegation, must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for the purpose. …”
  1. [41]
    There is no definition of “appropriately qualified person” for the purposes of s 234.  There is a definition of “appropriately qualified public service employee” for the purposes of s 257 which is set out earlier in these reasons.[40]  That is not an exhaustive definition.
  2. [42]
    The fact that the class of persons who may delegate under s 257 (the minister and the chief executive) is different to the class who may authorise a prosecution under s 234(5) (the Commissioner and the chief executive) is beside the point.  The chief executive may commence a prosecution under s 234(5)(b) and may, under s 257, delegate his “powers under [the MQSHA]” and the issue is whether the chief executive’s power to take proceedings under s 234(5)(b) can be delegated under s 257.
  3. [43]
    While there is no definition of “appropriately qualified person” for the purposes of s 234, the meaning of that term in that section must derive, not only from the words themselves, but from the context in which they appear and the purpose which they are intended to fulfil.[41]  An “appropriately qualified person” referred to in s 234(5)(c) must be a person “appropriately qualified” for the task which the person is being authorised to complete, namely the taking of criminal proceedings.  That must surely be judged against the person’s “qualifications [and] experience”.[42]  The class of persons to fall within the meaning of the phrase “appropriately qualified” in s 234 is equivalent[43] to those defined as “appropriately qualified” in s 257, namely those who “[have] the qualifications, experience or standing appropriate to exercise the power”.
  4. [44]
    By s 27A(3) of the Acts Interpretation Act, an delegation must be “in or evidenced by writing”.  Section 234 requires “written authorisation”.  The respondents submit that “written authorisation” contemplates that the authorisation itself is in writing and does not contemplate an oral authorisation confirmed or evidenced in writing.
  5. [45]
    Again, the term “authorised in writing” takes its meaning from the words, and their context and by reference to the intended purpose.  The obvious purpose of s 234(5) is to prohibit members of the general public from taking proceedings for offences under the Act but to permit a narrow class of persons to do so.  That class includes persons nominated by one of the specified members of the class.  That authorisation is a formal process and there must be writing.  Provided that a document is in existence before the proceedings are “taken”, it matters not whether the form of the document is by way of authorisation or written confirmation of authorisation.
  6. [46]
    Therefore, both ss 234 and 257 allow delegation (or authorisation) by the chief executive:
    1. (a)
      to a person who is qualified to exercise the power;
    2. (b)
      provided the delegation or authorisation is in writing or evidenced by writing.
  7. [47]
    The real point of distinction between the two sections is that s 257 only allows delegation to a “public service employee” who is “appropriately qualified” whereas s 234(5) allows any “appropriately qualified person” to be authorised to take proceedings.
  8. [48]
    Obvious policy reasons explain why the class of persons who may be authorised under s 234 is wider than the class identified in s 257.  The powers vested in the minister and the chief executive (apart from by s 234(5)) are all ones which concern fulfilment of regulatory objectives and are clearly ones which ought to be taken within the public service.  Prosecutions, on the other hand, can, and often are, outsourced to lawyers in private practice.  This is an established practice.  The Criminal Code, allows indictments to be signed and presented by Crown Law officers, Crown Prosecutors “or some other person appointed in that behalf by the Governor in Council”.[44]
  9. [49]
    Therefore, the power to delegate under s 257 has a narrower operation than the power to authorise under s 234.  A delegation under s 257 cannot be made in a way other than that identified by s 234.  A delegation under s 257 cannot be made to a person who could not be authorised by s 234.
  10. [50]
    In Anthony Hordern, the operation of the general power was held to be excluded in relation to the subject matter of the specific power where there were conditions and restrictions applying to the exercise of the specific power.  The essence of the rule is that the general power is read down so that the restrictions placed upon a specific power are not rendered otiose.
  11. [51]
    The principle was expressed by Dixon J (as his Honour then was) in R v Wallis[45] in this way:

“… If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38.”[46]

  1. [52]
    After considering various decisions where the rule had been considered, Gummow and Hayne JJ, in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom,[47] observed:

Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the ‘same power’, or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.”[48]

  1. [53]
    That passage was adopted in the joint judgment of Gummow, Hayne, Crennan and Bell JJ in Plaintiff M70/2011 v Minister for Immigration and Citizenship.[49]
  2. [54]
    Here there is no restriction imposed by s 234 which does not apply to the exercise of delegation under s 257.  Section 234 empowers the chief executive to authorise any person to take proceedings.  The restrictions upon the exercise of that power are that the person receiving the benefit of the delegation must be “appropriately qualified” and the authority must be written.  Both these restrictions apply to the delegation power in s 257 which is subject to a further limitation, namely that the person to whom the delegation is made must be a “public service employee”.
  3. [55]
    It was argued by the respondents that the exercise of the power of authorisation under s 234 gave rise to different considerations than the exercise of the power of delegation under s 257.  It was submitted that s 234 required consideration of the appropriateness of the person authorised to conduct a prosecution.  That much can be accepted.  Contrary to the respondents’ submissions, that does not suggest that the general power of delegation is limited by the specific power of authorisation in s 234.
  4. [56]
    Various powers of the chief executive which are obviously capable of delegation are created by the MQSHA.  Those powers are diverse.  Section 61 confers a power to protect abandoned mines.  Section 122 confers a power to appoint mining safety inspectors.  Section 231 empowers the chief executive to issue certificates with evidentiary significance.
  5. [57]
    The chief executive chose to delegate all the powers to each of the applicant and the Deputy Director-General.  There is nothing to suggest that he did not turn his mind to the appropriateness of those two persons to exercise each of those powers and indeed the power of prosecution in s 234(5)(b).  The issue here is the construction of the relevant provisions of the MQSHA, not the way the powers were in fact exercised.  The fact that there are two separate grants of power which may result in the same outcome does not mean that one limits the other.[50]
  6. [58]
    Here, the specific grant of power in s 234 is not limited by any restrictions which are not imposed on the power to delegate under s 257.
  7. [59]
    In at least one way, the two main matters for consideration in this appeal overlap.  If the authority to prosecute bestowed by s 234(5)(b) is not a power which may be delegated under s 257, then the two sections are not dealing with the same power.  For the reasons which follows, that is the case.
  8. [60]
    Therefore, for various reasons the Anthony Hordern principle does not assist in the construction of ss 234 and 257.

Is the authority to prosecute in s 234(5)(b) a power referred to in s 257?

  1. [61]
    All parties referred to Griffith University v Tang[51] and drew arguments from the consideration by the High Court of the term “decision … under an enactment” which has some similarity to the term “power under” the MQSHA.  There was even some argument as to whether both the limbs of the test laid down in Tang[52] had been complied with.
  2. [62]
    In Tang, after referring to the three parts of the definition of “decision to which [the Judicial Review Act 1991] applies”,[53] namely “a decision”, “of an administrative character”, “made … under an enactment”, Gummow, Callinan and Heydon JJ observed: “there are dangers in looking at the definition other than as a whole”.  Tang concerned the statutory interpretation of decisions which may be the subject of judicial review under the provisions of the Judicial Review Act 1991.  The context in which the term is used in that Act, and the purposes for which it is intended are far removed from the questions raised in the present case.  Here, the question is whether the power to take a proceeding for an offence against the MSQHA is a “power under [the MQSHA]” which can be delegated under s 257 and that is determined by construing the MQSHA not by reference to similar language in different statutes.
  3. [63]
    I am not convinced that a power (whatever its source) which can only be exercised by a person who holds a particular position under the MQSHA (here Commissioner or chief executive) or has an authority from such a person is not a power “under the Act”, which authorises the exercise of the power.[54]  It is, though, unnecessary to decide the point.
  4. [64]
    The respondents submitted that the phrase in s 234(5) describing proceedings which “may only be taken” by the Commissioner, chief executive, or person authorised by the chief executive excludes a person to whom the chief executive’s power under s 234(5)(b) is delegated under s 257.  That flows, it was submitted, because a delegate under s 257 is not one of the only three persons who may take proceedings.
  5. [65]
    The phrase “may only” is not the key to the issue of construction which arises here.  It is necessary to consider the notion of the power or right which was allegedly delegated pursuant to s 257 and determine whether on a proper construction of s 257 the power or right is delegated by the purported delegation that was signed.
  6. [66]
    The common law notion of a delegation of power, as opposed to an authority to act was described by Brennan J (as his Honour then was) sitting as the President of the Administrative Appeals Tribunal in Re-Reference Under s 11 of Ombudsman Act 1976 for an Advisory Opinion: Ex parte Director-General of Social Services.[55]  There, his Honour said:

“Where the relevant power is not delegable, the only acts by which the power can be exercised are the acts of the authority and acts which, having regard to the nature of the power, the authority may authorize another to perform on his behalf and which have been so authorized.

But where the relevant power is delegable and has been delegated, the delegate may – without further authorization – act in effective exercise of the power. His acts are to treated as acts vicariously done by the authority. He is not an agent to exercise the authority’s power; he may validly exercise the power vested in him. The distinction is brought out by Scott LJ in Blackpool Corporation v Locker [1948] 1 KB 349 at 377 in rejecting a submission that the relationship of principal and agent existed between the Minister and a local council to which he had delegated certain powers: ‘In my opinion that view of the legal relationship between them is radically mistaken. As I have already said, the circulars contained (together with much explanatory matter) ministerial legislation with statutory force, transferring to the local authorities concerned the Minister’s legal power to override the common law rights of individual members of the public, for the purposes defined in the circulars, and limited by their conditions.’

There is a confusing similarity between the exercise of an authority’s power by the authorized acts of another, and the exercise by an authority’s delegate of the power delegated to him. In either case the act – whether the act of the authorized person or the act of the delegate – is a valid exercise of power. Nonetheless, the sources of validity are different, though it must be said that the term ‘delegation’ has frequently been used to describe either case without distinguishing between them. For some purposes, a distinction must be made.”[56]

  1. [67]
    Subsections 27A(3D) to (6) of the Acts Interpretation Act 1954 alter the common law position.  Those subsections are:

27A Delegation of functions or powers

(3D) Anything done by or in relation to the delegate in relation to the delegation is taken to have been done by or in relation to the delegator.

Example—

Under an Act an evidentiary certificate purporting to be signed by an office holder is evidence of the content in any proceeding (the facilitation provision). The Act confers a general power of delegation on the office holder. The office holder uses the power to delegate the function of issuing the certificate to someone else. Under subsections (3C) and (3D) (and (6) and (7)), the facilitation provision is taken to provide for the certificate purporting to be signed by the delegate as having been signed by the delegator.

  1. (4)
     A delegated function or power may be exercised only in accordance with any conditions to which the delegation is subject.
  1. (5)
     The delegate may, in the performance of a delegated function or in the exercise of a delegated power, do anything that is incidental to the delegated function or power.
  1. (6)
     A delegated function or power that purports to have been performed or exercised by the delegate is taken to have been properly performed or exercised by the delegate unless the contrary is proved.”
  1. [68]
    Section 27A is subject to any contrary intention appearing in the MQSHA.[57]  No contrary intention appears and for the reasons which follow the distinction between the power of delegation in s 257 and the power to authorise under s 234(5)(c) is logical.
  2. [69]
    By s 42 of the Acts Interpretation Act:

42 Any person may prosecute etc.

Any person may take a proceeding for the imposition or enforcement of a penalty, or the making of a forfeiture order, under an Act.”

  1. [70]
    Section 42 reflects the common law.  All citizens may commence summary proceedings prosecuting an offence.  Section 234(5) of the MQSHA removes that right leaving the holders of two offices (the chief executive and the Commissioner) and a class of persons (those authorised in writing by the chief executive) to take proceedings for offences.
  2. [71]
    Section 234(4) of the MQSHA provides that the Industrial Relations Act 2016 applies to proceedings before an Industrial Magistrate.  Section 569 of the Industrial Relations Act 2016 applies the Justices Act 1886 to criminal proceedings for offences against the MQSHA.
  3. [72]
    Section 42 of the Justices Act provides:

42 Commencement of proceedings

  1. (1)
     Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant’s lawyer or other person authorised in that behalf.

(1A) However, where a defendant is present at a proceeding and does not object, a further charge or an amended charge may be made against the defendant and be proceeded with although no complaint in writing has been made in respect thereof.

  1. (2)
     Where a defendant has been arrested on any charge and no complaint in writing has been made and in a case to which subsection (1A) applies particulars of the charge against the defendant shall be entered on the bench charge sheet.”
  1. [73]
    A “public officer” is defined by the Justices Act as:

public officer means—

  1. (a)
     an officer or employee of the public service of the State or the Commonwealth; or
  1. (b)
     an officer or employee of a statutory body that represents the Crown in right of the State or the Commonwealth; or
  1. (c)
     an officer or employee of a local government;

who is acting in an official capacity.”

  1. [74]
    Public officers are afforded various powers and procedural advantages under the Justices Act.[58]  However, nothing in these provisions derogates from the right of any citizen to swear a complaint under s 42 and thereby “take proceedings”.
  2. [75]
    Therefore, proceedings can be commenced or “taken” in one of three ways:
  1. by arrest of the defendant without warrant;[59]
  2. by the making of a complaint;[60] or
  3. by means “otherwise expressly provided”.
  1. [76]
    A complaint may commence a criminal proceeding in one of two ways.  The complaint may found the issue of an arrest warrant[61] or, as here, cause a Justice of the Peace to issue a summons pursuant to s 53.  Various provisions of other legislation “otherwise expressly provide” for the commencement of proceedings, most notably the Police Powers and Responsibilities Act 2000.[62]  Those provisions need not be considered here.
  2. [77]
    A complainant (including one who is a “public officer”) is personally a party to the proceeding commenced.  Various provisions apply specifically to proceedings commenced by complaint made by a public officer.[63]  In Cross Country Realty Pty Ltd v Peebles,[64] the complainant, Mr Peebles, was an officer employed by the Office of Fair Trading.  He swore a complaint alleging summary offences against the Property Agents and Motor Dealers Act 2000.  A provision of that Act limited the time for commencement of proceedings to one year after the commission of the offence or “six months after the commission of the offence comes to the complainant’s knowledge”.  There was good evidence that the fact of the commission of the offence came within the knowledge of the department which employed Mr Peebles (a public officer) within one year but did not come within Mr Peebles’ knowledge until much later.
  3. [78]
    In holding that the proceeding was commenced in time, this court held:

“…Proceedings under the Act may be brought summarily under the Justices Act 1886. Under the Justices Act s 142A, complaints under the Act can be brought by a ‘public officer’, a broadly defined term which includes ‘an officer or employee of the public service of the State …’. Both Mr Peebles and Mr Cushion were public officers entitled to bring complaints under the Act. But the complainant in each of the complaints the subject of this application was not Mr Cushion but Mr Peebles. The plain words of s 589 require only that the proceeding for an offence against the Act be taken within one year after the offence is said to have been committed (s 589(1)(a)) or six months after the commission of the alleged offence comes to the complainant’s knowledge as long as that is within two years after the commission of the alleged office (s 589(1)(b)). Giving the words in s 589(1) their ordinary meaning, the term ‘complainant’ in s 589(1)(b) means the complainant who brings the proceedings for an offence or offences under the Act, here Mr Peebles…”[65]

  1. [79]
    The personal nature of the position of a complainant can also be seen in relation to the liability for costs.  In Latoudis v Casey,[66] proceedings were brought under the Magistrates (Summary Proceedings) Act 1975 (Vic) whose provisions were relevantly equivalent to ss 42 and 53 of the Justices Act.  Like in Queensland, there was a power to award costs against an unsuccessful complainant.  The defendant successfully defended the charge and secured an award of costs.  That was subject to appeal.  Questions arose as to whether the complainant could claim the protection of the principle that the Crown does not generally receive or pay costs.  Brennan J observed:

“A police officer who, in the ordinary course of his duties, commences a prosecution against a defendant is serving the public interest, not his own. Yet he is the defendant’s adversary in the prosecution and an order for payment of the defendant’s costs must be made against him personally, or not at all.”[67] (emphasis added)

And Dawson J:

“… a police informant remains personally liable as a matter of law to pay any costs awarded against him that an order for costs may be, and commonly is, regarded as a means of penalizing or discouraging any improper or unreasonable behaviour on an informant’s part in the conduct of the proceedings. Matters such as the failure properly to investigate a matter, lack of good faith in bringing the proceedings,  or the failure to prosecute the proceedings in a proper manner may warrant the making of an order for costs against a police informant.”[68]

  1. [80]
    Appeals come to the District Court against orders made on a complaint by a magistrate.  The right of appeal vests personally in the complainant.  Section 222 provides:

222 Appeal to a single judge

  1. (1)
     If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”[69] (emphasis added)
  1. [81]
    These provisions demonstrate that it is the complainant who is empowered by the Justices Act to “take proceedings” by swearing a complaint in his or her name and then prosecuting the complaint in his or her name.
  2. [82]
    When the written authority is given the power being exercised when the complaint is sworn is not the power of the chief executive but is the power vested in the person authorised by s 234(5)(c) to exercise the power which he has.  Therefore, he or she swears a complaint in his or her name, participates in the criminal proceeding in his or her name and bears the consequences of acting in that capacity as a complainant.
  3. [83]
    Section 234(5)(b) operates so the chief executive is not affected by the prohibition in s 234(5).  He is free, because of the exemption in s 234(5)(b) to exercise his right to swear a complaint under s 42 of the Justices Act and to prosecute the complaint in his name.  He may, by s 234(5)(c), authorise another to exercise their right to do likewise.  He may not, under s 257, delegate the right to take proceedings which s 234(5)(b) gives him.  A person swearing a complaint does not do so in the name of or in the exercise of a power or right of another.  They do not do so as a delegate, in the sense explained in s 27A of the Acts Interpretation Act.
  4. [84]
    Section 257 contemplates a delegation of power so that the person to whom the power is delegated exercises the power of the chief executive.  It does not contemplate the authorisation of the exercise of a power which is not a power of the chief executive.
  5. [85]
    Therefore, if a person other than the Commissioner or chief executive is to be exempted from the prohibitions against taking proceedings for offences under the MQSHA, that exemption must come via an authority under s 234(5)(c), not a delegation under s 257.
  6. [86]
    The Industrial Court was right to hold that the appellant had no power to take proceedings against the respondents.
  7. [87]
    I would dismiss each appeal.

Footnotes

[1]  Section 6(a).

[2]Stone v Mount Isa Mines Limited, Westerman, Guli and Smith, unreported, Industrial Magistrates Court at Brisbane, 1 July 2019.

[3]Smith v Stone; Guli v Stone; Mount Isa Mines Limited v Stone [2020] ICQ 6.

[4]  Which is also the position of chief executive.

[5]  Appeal Record Book (ARB) pages 272-273.

[6]Mining and Quarrying Safety and Health Act 1999: s 21 “Meaning of operator”, s 38 “Obligations of operators”.

[7]Mining and Quarrying Safety and Health Act 1999: s 22 “Meaning of site senior executive”, s 39 “Obligations of site senior executives for mine”.

[8]Mining and Quarrying Safety and Health Act 1999: s 36(1), a superintendent being a “person at [the] mine who may affect safety and health of persons at [the] mine”.

[9]Mining and Quarrying Safety and Health Act 1999: s 36(1), an Electrical Supervisor-Secondary being a “person at [the] mine who may affect safety and health of persons at [the] mine”.

[10]Mining and Quarrying Safety and Health Act 1999, ss 30 and 31.

[11]Justices Act 1886, s 42; ARB pages 56-74, 76-84, 86-101 and 103-121.  The particulars of the complaints were amended on 25 September 2017.

[12]Justices Act 1886, s 53; ARB pages 75, 85 and 102.

[13]  See, for example, ARB page 56.

[14]Stone v Mount Isa Mines Limited, Westerman, Guli and Smith, unreported, Industrial Magistrates Court at Brisbane, 1 July 2019.

[15]Industrial Relations Act 2016, s 556.

[16]Smith v Stone; Guli v Stone; Mount Isa Mines Limited v Stone [2020] ICQ 006; the power of dismissal is bestowed by the Justices Act 1886, s 158(2).

[17]Industrial Relations Act 2016, s 554.

[18]Industrial Relations Act 2016, s 554(1).

[19]  Sections 257-261.

[20]Acts Interpretation Act 1954, s 33(2).

[21]  Sections 63, 67, 68, 71, 89, 90, 108, 109, 110, 111, 119, 201 and 254C.

[22]Mining and Quarrying Safety and Health Act 1999, s 8 and sch 2 “Dictionary”, definition of “commissioner”.

[23]  Sections 61, 63, 119, 122, 126A, 127, 202, 231, 239, 244, 254C, 259 and 230.

[24]Smith v Stone; Guli v Stone; Mount Isa Mines Limited v Stone [2020] ICQ 006 at [13].

[25]  At [40].

[26]  At [39] and [40].

[27]  At [40].

[28]Mining and Quarrying Safety and Health Act 1999, s 234(5).

[29]  At [25], [26] and [40].

[30]  At [40].

[31]  At [34] and [40].

[32]  At [58].

[33]  (1932) 47 CLR 1.

[34]  At 7.

[35]  At [58].

[36]  The person identified in s 234(5)(a).

[37]  The person identified in s 234(5)(b).

[38]  Section 234(5)(c), emphasis added.

[39]  Section 257, emphasis added.

[40]  Paragraph [19].

[41]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519, [39], SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at 368, [14], 374-375, [35]-[40], R v A2 (2019) 93 ALJR 1106 at 1116-1118, [31]-[37], 1131, [124], 1138-1139, [163].

[42]  Section 257(2).

[43]  Apart from the fact that the class of persons in s 257 is limited to “public service employee[s]”.

[44]  Section 560.

[45]  (1949) 78 CLR 529.

[46]  At 550.

[47]  (2006) 228 CLR 566.

[48]  At 589, [59].

[49]  (2011) 244 CLR 144 at 187-188, [84].

[50]Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 408, approved in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 535, 547 and 561 and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 586.

[51]  (2005) 221 CLR 99.

[52]Griffith University v Tang (2005) 221 CLR 99 at 130-131, [89].

[53]Judicial Review Act 1991, s 4.

[54]cf Attorney-General (NSW) v Built NSW Pty Ltd (2013) 239 IR 102 at 119-120, [89].

[55]  (1979) 2 ALD 86.

[56]  At 94.

[57]Acts Interpretation Act 1954, s 4.

[58]Justices Act 1886, ss 56A, 142A, 158A and Part 5 Division 2 which concerns “private complaints” (see definition in s 4) alleging an indictable offence.

[59]Justices Act 1886, s 65 concerns how a person arrested without warrant is dealt with.  The power of a citizen to arrest without warrant is a common law power.

[60]  Sections 42 and 57.

[61]Justices Act 1886, s 57.

[62]  Section 365; Arrest without warrant by a police officer, ss 370 and 371; Arrest pursuant to arrest warrant or complaint of a police officer, s 382 issue by police officer of a notice to appea.

[63]  Sections 142A, 158A and in relation to indictable offences, see Part 5 Divisions 2 and 4.

[64]  [2007] 2 Qd R 254.

[65]  At 257, [9].

[66]  (1990) 170 CLR 534.

[67]  At 544-545.

[68]  At 560-561.

[69]  Legislative notes omitted.

Close

Editorial Notes

  • Published Case Name:

    Stone v Guli; Stone v Smith; Stone v Mount Isa Mines Limited & Anor

  • Shortened Case Name:

    Stone v Guli

  • MNC:

    [2020] QCA 288

  • Court:

    QCA

  • Judge(s):

    McMurdo JA, Mullins JA, Davis J

  • Date:

    15 Dec 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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