Impossibility maxim

John Holland Pty Ltd v Wallis [2022] WASC 358

Was an inspector authorised to launch a prosecution for workplace offences?  One issue was whether a particular statutory power6 covered this via the ‘impossibility maxim’ – Whenever anything is authorized … and it is found impossible to do that thing unless something else not authorized in express terms be also done, then that something else will be supplied by necessary intendment7.  Professor Pearce (at [5.3]) deals with this more intuitively under Conferral of Power Carries Power of Performance.

Archer J said ‘no’ given another provision was wide enough to cover the situation.  A ‘power to perform’ is implied only to the extent shown to be necessary8.

This principle is from Episode 91 of interpretation NOW!


6 s 230(1)(b) of the Work Health and Safety Act 2011 (Cth).

7 Trolly (1905) 2 CLR 509 (at 523), TWU [2008] FCAFC 26 (at [38]).

8Essendon [2014] FCA 1019 (at [278]), Djordjevich [2022] VSC 732 (at [85-93]).