Barclay v Commonwealth of Australia through its responsible agency the Department of Defence [2026] QMC 1

MAGISTRATES COURTS OF QUEENSLAND CITATION: Paul Barclay v. Commonwealth of Australia through its responsible agency the Department of Defence [2026] QMC 1 PARTIES: PAUL BARCLAY (Complainant) v COMMONWEALTH OF AUSTRALIA THROUGH ITS RESPONSIBLE AGENCY THE DEPARTMENT OF DEFENCE (Defendant) FILE NO/S: MAG 00176923/23(7) DIVISION: Magistrates Court at Brisbane PROCEEDING: Application ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 30 January 2026 DELIVERED AT: Brisbane HEARING DATE: 27 October 2025 MAGISTRATE: Magistrate Simpson ORDER: The application is dismissed CATCHWORDS: LEGISLATION: ADMINISTRATIVE LAW – Delegation of powers and functions – Delegation of power to authorise an inspector to bring a proceeding – Whether delegation was effective. CRIMINAL LAW AND PROCEDURE – Prosecution powers – Delegation of - Delegation of power to authorise an inspector to bring a proceeding – Whether delegation was effective. ss. 154, 156, 230 Work Health and Safety Act 2011 (Cth) s. 33AB Acts Interpretation Act 1901 (Cth) -- 1 of 11 -- CASES: Lockwood v. Commonwealth (1954) 90 CLR 177 Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 VAW (Kurri Kurri) v Scientific Committee (2003) 58 NSWLR 631 Perpetual Trustee Company (Canberra) Ltd v Lewis (1994) 119 FLR 38 Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCA 820 R v Ashby (2010) 25 VR 107 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales and Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General [2010] NSWIRComm 36 Stone v Guli [2020] QCA 288 Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory (No 2) (2018) 338 FLR 339 Sports Centres Australia Pty Ltd and Others v Commissioner for Australian Capital Territory Revenue and Another (2019) 348 FLR 439 Cassell v The Queen (2000) 201 CLR 189 Jamieson v McKenna [2002] WASCA 325 COUNSEL: J Single SC with S Walpole for the complainant M Rawlings for the defendant SOLICITORS: Commonwealth Director of Public Prosecutions for the complainant Sparke Helmore for the defendant [1] In the preparation of these reasons I have been assisted by and draw upon the written submissions of the parties. The Application and background [2] The defendant is charged by complaint with an offence of failing to comply with a health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (Cth) (WHS Act) and thereby exposing individuals to a risk of death or serious injury or illness contrary to s 32 of the WHS Act. [3] The charge arises out of an incident during a training exercise near Charters Towers on 30 August 2021 during which a 45M Heavy Recovery Vehicle operated by the Australian Army rolled, fatally injuring two soldiers. -- 2 of 11 -- [4] It is alleged that the Commonwealth of Australia, through its responsible agency, the Department of Defence, failed to undertake various measures to eliminate or minimise the risk to the health and safety of the soldiers. [5] The complaint was sworn by Mr Paul Barclay, an employee of Comcare, on 29 August 2023. [6] This application, brought by the defendant, concerns the appointment of inspectors, including Mr Barclay, under the WHS Act and whether Mr Barclay was lawfully able to bring the complaint. [7] The defendant says that two employees of Comcare exercised the powers of an inspector without a valid appointment. It relies upon the argument that the process of appointing these two officers, Ms Beverley Smith and Mr Paul Barclay, as inspectors was tainted by reliance on a defunct and redundant power to do so. As a consequence, both of their appointments are invalid at law, and they are unable to carry the authority of the office of inspector under the WHS Act. [8] If I accept the above the defendant says that given the invalidity of the appointment(s), as an operation of law, Mr Barclay was incapable of bringing a proceeding for a complaint. [9] This argument rests on two propositions: firstly, if Ms Smith did not have the entitlement at law to appoint Mr Barclay as an inspector, then his appointment is invalid. Secondly, if the instrument of appointment relies on a defunct delegation, the instrument is a nullity. [10] If either of those propositions are accepted, the defendant says Mr Barclay was not in the class of persons who were permitted, at law, to commence this proceeding and I should strike out the complaint. Relevant legislation [11] Section 154 of the WHS Act provides: 154 Delegation by regulator (1) The regulator may, by instrument in writing, delegate a power or function under this Act other than this power of delegation to: -- 3 of 11 -- (a) a member of the staff of the regulator who is an SES employee or an acting SES employee; or (b) an inspector; or (c) a member of the staff of the regulator prescribed by regulations. (2) A delegation under this section may be made subject to such conditions as the regulator thinks fit. Note: For further provisions relating to delegations and the revocation of delegations, see the Acts Interpretation Act 1901. [12] Section 156 of the WHS Act provides: 156 Appointment of inspectors (1) The regulator may, by instrument, appoint any of the following as an inspector: (a) a member of the staff of the regulator; (b) a person who is appointed as an inspector under a corresponding WHS law of a State; (c) a person in a prescribed class of persons. [13] Section 230 of the WHS Act provides: 230 Prosecutions (1) Subject to subsection (4), proceedings for an offence against this Act may only be brought by: (a) the regulator; or (b) an inspector with the written authorisation of the regulator (either generally or in a particular case). (2) An authorisation under subsection (1)(b) is sufficient authority to continue proceedings in any case where a court amends the charge, warrant or summons. (3) The regulator must issue, and publish on the regulator’s website, general guidelines for or in relation to: (a) the prosecution of offences under this Act; and (b) the acceptance of WHS undertakings under this Act. (4) Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an offence against this Act. -- 4 of 11 -- [14] Section 33AB of the Acts Interpretation Act 1901 (Cth) (AIA), is in the following terms: Anything done by or in relation to a person purporting to act under an appointment (including an acting appointment) under an Act is not invalid merely because: (a) for any appointment—the occasion for the appointment had not arisen; or (b) for any appointment—there was a defect or irregularity in connection with the appointment; or (c) for any appointment—the appointment had ceased to have effect; or (d) for an acting appointment—the occasion to act had not arisen or had ceased. The Facts [15] The background facts are uncontested for the purpose of this application, and I adopt the summary as set out by the complainant’s counsel. [16] At all relevant times Mr Justin Napier, the General Manager of the Regulatory Operations Group of Comcare, had the power to issue instruments of appointment appointing inspectors under s 156 of the WHS Act. [17] Mr Napier had that power delegated to him by an Instrument of Delegation dated 12 May 2014. The Instrument of Delegation dated 12 May 2014 was revoked on 19 November 2015 (Revoked Delegation). On 19 November 2015, a new Instrument of Delegation was issued (In-Force Delegation). [18] Ms Smith was appointed as an inspector under the WHS Act by an instrument of appointment (IOA) dated 8 September 2017 signed by Mr Napier. [19] The Smith IOA referred to the source of power as being “Pursuant to section 156 of the Work Health and Safety Act 2011 (Cth) (WHS Act) and in exercise of the powers and functions delegated by the Instrument of Delegation dated 12 May 2014” of Mr Napier. -- 5 of 11 -- This was a clerical error. The instrument of delegation referred to had been replaced by the In-Force Delegation. [20] Both the Revoked Delegation and In-Force Delegation delegated the power to appoint inspectors under s 156 of the WHS Act to the General Manager of the Regulatory Operations Group of Comcare (Mr Napier’s position), such that, Mr Napier had, at the relevant time, the power to appoint inspectors under s 156. While Mr Napier referred to the Revoked Delegation, the In-Force Delegation was materially the same and properly delegated the power to Mr Napier. [21] On 23 August 2022, Ms Smith, Senior Director of National Operations of Comcare, signed the First Barclay IOA. The First Barclay IOA appointed Mr Barclay as an inspector under the WHS Act, with conditions. [22] On 20 March 2023, Ms Smith, in the same role, signed the Second Barclay IOA. The Second Barclay IOA appointed Mr Barclay as an inspector under the WHS Act, without conditions. [23] Both the First and Second Barclay IOAs were worded as follows (emphasis added): Pursuant to section 156(a) of the Work Health and Safety Act 2011 (WHS Act) and in exercise of the powers and functions delegated by the relevant instrument of delegation, the Senior Director National Operations in the Regulatory Operations Group of Comcare hereby appoints the following person to be an Inspector for the purposes of the WHS Act. [24] Ms Smith’s appointments of Mr Barclay had to have occurred in her capacity as an inspector under s 154(1)(b) of the WHS Act (and so pursuant to the Smith IOA) because: a. Ms Smith’s role as Senior Director of National Operations of Comcare is not an SES position; b. Ms Smith was not otherwise acting in an SES position at the relevant times; -- 6 of 11 -- c. accordingly, Ms Smith could not have appointed Mr Barclay as an inspector pursuant to s 154(1)(a) of the WHS Act. [25] On 29 August 2023, the CEO of Comcare, Mr Gregory Vines, signed a written authorisation authorising Mr Barclay, as an inspector, to bring proceedings against the Defendant. The competing arguments [26] The central plank of the defendant’s argument is that an instrument of appointment, whose validity is founded under legislation, should not be construed broadly, nor loosely interpreted. Moreover, where the legislature has imposed pre-conditions to the allocation of powers under an enactment, those pre-conditions should be strictly adhered to. The purpose of the instrument is to provide the formal conferral of the powers and responsibilities under an enactment to the appointee, in such a manner that citizens impacted by its operation are conscious of the limitations and extent of the appointee’s powers. If the IOA is misleading then the law does not provide a remedy to cure it. [27] To support this argument the defendant relies upon passages from Mercantile Mutual Life Insurance Co Ltd v Australian Security Commission (1993) 40 FCR 409, 441; Perpetual Trustee Company (Canberra) Ltd v Lewis (1994) 119 FLR 38, 45; Park Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCA 820, [99]; Public Service Association and Professional Officers Association Amalgamated Union of New South Wales and Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General [2010] NSWIRComm 36 [62]; Stone v Guli [2020] QCA 288, [82]-[83] and R v Ashby (2010) 25 VR 107, 112-113. [28] To expand on this theme the defendant argues that an IOA should be read as strictly as an Act of parliament. It says that the IOA in question here should be viewed as a complete instrument; it is clear on its face, without ambiguity in its terms. It did not suffer from an internal irregularity, or inconsistency with legislative provisions. It was simply an instrument which was not effective in assigning statutory authority. In this way, the reference to a redundant delegation is not a matter of a mistake, nor is it a defect to cure, the instrument is simply one that was ineffective. -- 7 of 11 -- [29] The defendant says that courts view similar instruments where they were clear, but simply ineffective, in their allocation of statutory power as nullities and relies upon Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory (No 2) (2018) 338 FLR 339, 352 [77] - [79] and Sport Centres Australia Pty Ltd and Others v Commissioner for Australian Capital Territory Revenue and Another (2019) 348 FLR 439, 463-464 [126] to support this argument. [30] Lastly, the defendant says that if the complainant relies upon the de facto officer rule or s33AB of the AIA to cure the defect in the IOA then the question remains; was the officer, Mr Barclay aware of the defect in his IOA or Ms Smith’s IOA when he signed the complaint? If he was then he can’t continue to act under that IOA once that knowledge is held. To support this argument the defendant relies upon an oral decision I gave in another matter Daniel Black v. Commonwealth of Australia (Department of Defence) MAG000156144/23(1) on 6 February 2025. That decision relied in part on the explanatory memorandum to s33AB of the AIA and its reference to Cassell v The Queen (2000) 201 CLR 189. [31] The complaint’s counsel urges care when examining the authorities relied upon by the defendant and says that each of them are either not authority for the proposition put or are not factually applicable to this case. For example, the defendant says an IOA should not be construed broadly, nor loosely interpreted relying upon Mercantile Mutual for that statement. But that is not the words used by Gummow J at 441. He instead says: No doubt, instruments of this character are not necessarily drafted with the precision which should attend the preparation of delegated legislation. Nevertheless, the steps taken under or pursuant to such instruments may affect in a significant manner the rights and liabilities of a wide range of third parties. Accordingly, the terms of these instruments should be fairly but not over- generously construed. (my emphasis) [32] Further, the complainant says all that needed is an analysis of the instrument with reference to the requirements of the particular statute. It relies upon Gummow J again in Mercantile Mutual at 437: In my view, the truth of the matter can only be found by analysis of the particular statute or other written law said to authorise of empower the making of the -- 8 of 11 -- decision in question. Having regard to any specification of manner and form and, on a more general level, to the subject matter, scope and purpose of the law, is it a requirement that the decision maker specify in writing the source of the authority relied upon? Is such a requirement made directory or mandatory by the law in question? … If there be no such requirement, or if the requirement be directory in character, it must be very difficult to sustain a case that the propriety of the decision in question is to be judged by that head of power expressly relied upon (if any) to the exclusion of any other enabling authority. Here, none of the heads of power suggested to support the authorisation specify any particular form, nor, indeed, that it be embodied in any written instrument. Nor does reliance upon one rather than another head of power lead to any difference in the consequences for third parties … [33] The approach above has been endorsed in VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631, [29] – [32]. [34] In response to the proposition that an IOA should be read as strictly as an Act of parliament, Ms Single SC took me to Wallis v John Holland Pty Ltd [2024] WASC and relied upon Vaughan JA at [131] to [132]: Instruments of delegation of statutory functions and powers are to be construed conformably with ordinary principles of statutory construction. As was said by Goldberg J in Parks Holding Pty Ltd v. Chief Executive Officer of Customs: [A]n instrument of delegation is not legislation but, in principle, the manner in which it is construed is guided by the authorities regarding statutes. There is no reason to construe an instrument more strictly. Indeed, observing that instruments of this character are not necessarily drafted with the precision that should attend the preparation of delegated legislation……….. [35] Vaughan JA goes onto refer to Gummow J regarding a fair but not overly generous interpretation and concludes with a reference to not employing a loose construction of the instrument. Plainly there are limits on the extent of the construction of these and like instruments but they are not equivalent to Acts of parliament nor should they be read as such. [36] In response to the defendant’s arguments that it says are supported by Burridge and Sports Centres the complainant argues that these cases turn on their own particular facts and the construction of the instruments in question. They do not have application -- 9 of 11 -- here because they are about non-existent delegations, not an erroneous reference within an instrument where there was in any event a head of power in place. [37] The complainant says that the IOAs are valid for the following three reasons: 1. There is no express statutory obligation in the WHS Act to specify the source of the delegated power. The starting point must be the statutory requirements. The requirements of a s 156 appointment are: a. the appointment is by instrument; b. the appointment is to a prescribed person; and c. it is the appointment as an inspector. And that is all that was required for the Smith IOA and all of these conditions were met on the facts. 2. The valid In-Force Delegation existed at the relevant time. It was the power delegated by the In-Force Delegation which was, in fact, exercised, notwithstanding the erroneous reference to a revoked delegation in the document. 3. The mistaken reference to the Revoked Delegation in no way led to any material difference in the procedures or consequences attending the exercise of power. [38] So if I hold that the Smith IOA was valid then the relevant Barclay IOA was also valid because it complied with the relevant statutory requirements. Moreover, the Barclay IOAs did not contain any reference to the Revoked Delegation. Further, the complainant argues, by reference to Lockwood v. Commonwealth (1954) 90 CLR 177 at 184, that a mistaken reference to an incorrect source of power does not necessarily impugn the validity of an administrative act of an appointment. There may be another statutory power to support it. Here it says the In Force Delegation was that alternate source of power. [39] The complainant’s argument on the de facto officer or s33AB point starts with the proposition that they don’t rely upon it. But if they did then knowledge of the relevant -- 10 of 11 -- officer as to any defect is not contemplated by the section or Cassel. This is demonstrated in Jamieson v McKenna [2002] WASCA 325 at [15]: …..Not only was no authority cited to us in support of that proposition but it is a proposition which runs counter to the rationale for the principle which is protection of members of the public who deal with or are effected by the official acts of de facto officers reasonably assuming the validity of the official’s appointment. The doctrine would afford little protection to those who it is intended to protect if it’s application depended on the subjective state of mind of the de facto officer. Conclusion [40] Dealing with the last point first: the complainant doesn’t rely upon s33AB of the AIA nor the de facto officer principle. Further it says, and I accept upon reflection, that my view expressed about that in the Daniel Black matter were in error. I did not consider Jamieson v McKenna when I gave that decision. Knowledge by Mr Barclay as to the validity of his IOA is irrelevant. That point can be put to one side. [41] The balance of the arguments can be dealt with by accepting the correct approach is found in Mercantile Mutual. A fair but not overly generous approach is to be taken with reference to the construction of the instrument. I reject that the IOAs should be construed on a strict basis. They are not an Act of parliament and may not always be drafted with such precision. [42] Going back the bare essence of what was required in the IOAs under the WHS Act, there is no express statutory obligation in the WHS Act to specify the source of the delegated power. Therefore a reference to an erroneous Revoked Delegation particularly in circumstances where there was an In Force Delegation in effectively the same terms has no bearing on it’s validity (see Lockwood). All of the conditions of s 156 of the WHS Act were met in the Smith IOA even if it erroneously referred to a Revoked Delegation. Therefore she was entitled to issue the Barclay IOAs and following that he was entitled to bring the complaint. [43] Following these reasons the application to strike out the complaint is dismissed. -- 11 of 11 --