Australian Health Practitioners Regulation Agency

[2012] FWA 8776

Note: An appeal pursuant to s.604 (C2012/5894) was lodged against this decision - refer to Full Bench decision dated 13 March 2013 [[2013] FWCFB 661] for result of appeal.

[2012] FWA 8776

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.240—Bargaining dispute

Australian Health Practitioners Regulation Agency
(B2012/825)

SENIOR DEPUTY PRESIDENT KAUFMAN MELBOURNE, 17 OCTOBER 2012

Application to deal with a bargaining dispute - jurisdiction - National System Employer - referral legislation - Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld)

[1] The Australian Health Practitioner Regulation Agency (AHPRA) is in the process of bargaining for an enterprise agreement in Western Australia. It contends that any agreement must be made in Fair Work Australia under the provisions of the Fair Work Act 2009 (the Act). As there is a dispute about the agreement and the bargaining representatives for the agreement are unable to resolve the dispute, AHPRA has applied, pursuant to section 240 of the Act, for Fair Work Australia to deal with the dispute.

[2] A preliminary issue has arisen. AHPRA contends that it is a national system employer for the purposes of the Act. The Community and Public Sector Union/Civil Service Association (CSA), which has been bargaining with AHPRA for an agreement, contends that AHPRA is not a national system employer and that any agreement that is made must be made in the Western Australian Industrial Relations Commission under the provisions of the Industrial Relations Act 1979 (WA). It is accepted that if AHPRA is a national system employer bargaining must be under the Act and Fair Work Australia has jurisdiction to deal with the dispute.

[3] The contention that AHPRA is a national system employer is put on two alternative bases. The first is that it is a single national entity created through an act of the Queensland Parliament and, being an employer in respect of which the state of Queensland has referred its industrial relations powers to the Commonwealth, it falls within the extended definition of national system employer contained in sections 30D and 30N of the Act. The second basis is that it is a constitutional corporation, in that it is a trading and/or financial corporation and thus falls within the definition of national system employer contained in section 14(1) of the Act.

[4] I acceded to a request from Mr C O’Grady, counsel for AHPRA, that I only deal with the first matter as if I find that AHPRA is a national system employer it will not be necessary to determine whether it is a constitutional corporation.

BACKGROUND

[5] AHPRA was created as part of the move to a national scheme for the regulation and accreditation of health professionals in Australia. As explained by AHPRA, underlying the rationale for its creation was the need to address the inherent inefficiencies and inconsistencies flowing from regulation by the various state based boards that had historically undertaken this role. The new national scheme was the subject of extensive consultation and consideration at the highest levels of Government from at least 2005. AHPRA was created as a single national agency through complementary legislation establishing a national registration and accreditation scheme for the regulation of health practitioners and the registration of students undertaking programs of study that provide a qualification for registration in a health profession or clinical training in a health profession.

[6] The national scheme arose out of an Intergovernmental Agreement for a National Registration and Accreditation Scheme for the Health Professions which was signed by the Prime Minister and the Premiers of the Australian States and Territories on 26 March 2008 (the Intergovernmental Agreement) 1.

WHAT IS AHPRA?

[7] Constitutionally it was not possible for the Commonwealth government to bring such a national scheme into existence through legislation, so the States and Territories came to an agreement under the auspices of the Council of Australian Governments (COAG) to jointly set up a national scheme by passing initial host legislation in Queensland and then passing similar legislation in the other states and territories.

[8] At clause 2.5 of the Intergovernmental Agreement it was noted COAG had agreed to:

“establish a single national scheme, with a single national agency encompassing both the registration and accreditation functions.”

[9] The Intergovernmental Agreement also noted the intention of COAG to make Queensland the host of the national scheme laws (at clause 6.3). To this end, the first legislation enacted under the Intergovernmental Agreement was the Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 (Qld) (Administrative Arrangements Act) which received Royal Assent on 25 November 2008. The Administrative Arrangements Act comprised six sections and a Schedule entitled Health Practitioners Regulation (Administrative Arrangements) National Law (Administrative Arrangements National Law).

[10] Section 18 of the Administrative Arrangements National Law provided:

“18 National Agency

(1) The Australian Health Practitioner Regulation Agency is established.

(2) The National Agency--

(a) is a body corporate with perpetual succession; and

(b) has a common seal; and

(c) may sue and be sued in its corporate name.”

[11] Section 3 of the Administrative Arrangements National Law provided that:

“(1) The object of this Law is to facilitate the development and implementation of the National registration and accreditation scheme for health practitioners.”

[12] Section 3(2) provided that “functions under the Law” were to be exercised “having regard to the objectives of the national registration and accreditation scheme, as set out in the COAG agreement.”

[13] Section 4 of the Administrative Arrangements Act provided that the Administrative Arrangements National Law applied as a law of the jurisdiction of Queensland and as so applying was a part of the Administrative Arrangements Act.

[14] As its name suggests, the Administrative Arrangements Act created the mechanisms by which AHPRA could come into existence and prepare for the introduction of the national scheme. To this end, by operation of the Administrative Arrangements National Law:

• AHPRA was established on 1 February 2009 when section 18 commenced;



• AHPRA was given all the powers of an individual and in particular, the power to enter into contracts, acquire property, both real and personal, and to do anything necessary or convenient to be done in the performance of its functions 2;
• AHPRA was to establish a national and local offices in each participating jurisdiction 3; and
• AHPRA was to appoint a chief executive officer 4 and employ staff5.

[15] AHPRA’s Director Finance and Corporate Operations was employed on 7 December 2009 and its Director National Board Services was employed in January 2010. They both gave evidence in these proceedings.

[16] It is readily apparent that in a very real sense the preparatory work necessary for the implementation of the national scheme commenced from the date of assent to the Administrative Arrangements Act, 25 November 2008.

[17] On 3 November 2009, the Health Practitioner Regulation National Law Act 2009 (Qld) (Queensland National Law Act) received Royal Assent. It also contains, as a schedule, the Health Practitioner Regulation National Law (National Law) which by operation of section 4 of that Act applies as a law of Queensland and, as so applying is a part of that Act.

[18] Section 10 of the Queensland National Law Act repealed the Administrative Arrangements Act.

[19] Each State and Territory subsequently passed complementary legislation:

• Health Practitioner Regulation National Law Act 2009 (QLD)



• Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)



• Health Practitioner Regulation National Law (Victoria) Act 2009



• Health Practitioner Regulation National Law (Tasmania) Act 2010



• Health Practitioner Regulation National Law (South Australia) Act 2010



• Health Practitioner Regulation National Law (WA) Act 2010



• Health Practitioner Regulation National Law (ACT) Act 2010



• Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT)

(National Law Acts)

[20] Each of the National Law Acts provides by its section 4 that the Queensland National Law (albeit in some jurisdictions with modifications in relation to the retention of existing State complaints and other like matters), either by adoption or by it being set out as a schedule to the particular National Law, applies as a law of the particular jurisdiction as if it were a part of the National Law Act of the individual jurisdiction. By way of example the New South Wales National Law provides:

“4 Adoption of Health Practitioner Regulation National Law

The Health Practitioner Regulation National Law, as in force from time to time, set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland:

(a) applies as a law of this jurisdiction; and

(b) as so applying, may be referred to as the Health Practitioner Regulation National Law (NSW); and

(c) as so applying, is a part of this Act.”

The Victorian equivalent is in almost identical terms.

[21] The Explanatory Note to the New South Wales Bill and the Explanatory Memorandum to the Victorian Bill, each stated in respect of each of their clause 4’s:

“... and each of the entities created by the National Law is created not only by Queensland law but the law of each jurisdiction. For example, each National Board will not only be a Queensland body but also a body of each of the jurisdictions in which the National Law is applied. Section 7 of the National Law clarifies that the effect is the creation of one national entity rather than separate bodies in each jurisdiction.”

[Emphasis added]

[22] Section 7 provides:

“It is the intention of the parliament of this jurisdiction that this law as applied by an act of this jurisdiction, together with this law as applied by acts of the other participating jurisdictions, has the effect that an entity established by this law is one single national entity, with functions conferred by this law as so applied.”

[emphasis added].”

[23] AHPRA’s submissions included:

“The intention and effect of the Intergovernmental Agreement and the complementary laws in each State and Territory was to create a single national agency with effect from 1 July 2010 known as the Australian Health Practitioner Regulation Agency (i.e. AHPRA). The single national agency:

(a) has one Australian Business Number - ABN 78 685 433 429 (Ilott

paragraph 49);

(b) has one Tax File Number - TFN 911 809 182 - and one registration for

fringe benefits tax purposes (Ilott paragraph 49);

(c) has a bank account for the single national agency (Ilott paragraph 49); (d) has a single payroll system, PayGlobal, to pay all employees of AHPRA

(Ilott paragraph 49);

(e) reports its taxation as a single national agency (Ilott paragraph 49);

(f) has a single Chief Executive Officer (Ilott paragraphs 32 to 34);

(g) has insurance policies which apply to the single national agency (Ilott

paragraph 49);

(h) has an accounting system for the single national agency (Ilott paragraph

49); and

(i) has an Information Technology system for the single national agency

(Ilott paragraphs 40 and 49).”

“The view that AHPRA is a single national agency is supported by a clear statement of legislative intent in each piece of legislation in each State and Territory. In the National Law (as adopted in each State and Territory), the clear intention of the Parliament of each State and Territory is identified in section 7(1) of the National Law. ...

“The Explanatory Notes to the Second Qld Act (the only Parliamentary material drafted to explain the intention behind the National Law) confirms:

‘Clause 7, subclause (1) clarifies that the effect of each jurisdiction applying the National Law, and therefore a national entity of the same name and membership being established in each jurisdiction, is that only one single national entity of that name is created rather than multiple entities of that name, one in each jurisdiction.’”

[24] The National Law Acts were enacted in each jurisdiction and came into operation on 1 July 2010, except in Western Australia where the operative date was 18 October 2010. The history of the passing of the National Law Acts may be found at paragraph 18 of the statement of Mr Chris Robertson, the Director National Board Services of APHRA.

[25] Each jurisdiction has enacted a provision in the terms of section 23 of the Queensland National Law, whereby it is provided that:

(1) The Australian Health Practitioner Regulation Agency is established.

(2) The National Agency—

(a) is a body corporate with perpetual succession; and

(b) has a common seal; and

(c) may sue and be sued in its corporate name.

(3) The National Agency represents the State.

(4) Schedule 3 sets out provisions relating to the National Agency.

[26] Section 23 of the Queensland National Law is in almost identical terms to section 18 of the Administrative Arrangements Act, save that section 18(c) provides that the National Agency has the status, privileges and immunities of the State and there is no equivalent to section 23(4). In my opinion, nothing turns on the differences for the purposes of this matter and no submissions were made about it.

[27] AHPRA came into existence on 1 February 2009 as a creature of the Queensland Parliament, with the commencement of section 18 of the Administrative Arrangements Act.

[28] Although the Administrative Arrangements Act was repealed on 1 July 2010 when the Queensland National Law Act commenced, AHPRA, as matter of fact, continued to operate. I doubt that, as a matter of law, the mere repeal of the Administrative Arrangements Act extinguished the juristic entity that was and remains AHPRA.

[29] Absent the repeal of the Administrative Arrangements Act by section 10 of the Queensland National Law Act, it seems to me that it would not be arguable that AHPRA was anything but a Queensland entity, albeit having been created for a national purpose, it having been created by the Administrative Arrangements Act.

[30] As I apprehend the argument advanced on behalf of CSA, it contends that AHPRA has been created in each State and Territory by their respective Parliaments by operation of the National Law Acts. Although it is possible, as a matter of law, that more than one state can, by legislation in each jurisdiction, constitute the one entity 6 that is not what happened with the creation of AHPRA.

[31] In my view it is clear that the intention of all the jurisdictions was that there would only be only the one single national entity established to administer the national scheme. The creation of this entity was achieved by section 18 of the Administrative Arrangements Act. That “The Australian Health Practitioner Regulation Agency is established” by an Act of the Parliament of each jurisdiction does not in my view alter the situation. The establishment of AHPRA in each jurisdiction did not, in my view, recreate AHPRA or create seven different AHPRAs. As was made clear in the explanatory memoranda to which I have referred, its establishment in each jurisdiction was for the purposes of that jurisdiction.

[32] That each State and Territory “established” AHPRA as an entity in its own jurisdiction and for the purposes of that jurisdiction does not derogate from the fact that the juristic entity was established by the Administrative Arrangements Act in 2009 in Queensland and its existence has continued. In my view, its continued existence was not extinguished by the repeal of the Administrative Arrangements Act or the coming into operation of the National Law Acts. To assert otherwise flies in the face of reality. The observations of Deane, J in R v Duncan; Ex parte Australian and Steel Pty Ltd are apposite:

“It is competent for the legislature to constitute or to authorize the constitution of an entity unknown to the common law. This the Acts have, in their concurrent operation, done in the case of the Tribunal. It is unnecessary to define with precision the nature of the statutory entity which has been established.” 7

It is not necessary that I define with precision the nature of the State and Territory entities.

[33] The CSA contends that as AHPRA has been brought into existence through State and Territory legislation for a public purpose it is a public statutory authority in each State and Territory jurisdiction. This contention seems to me to miss the point. In the first place it begs the question as to how and when AHPRA came into existence. Secondly, that it is a public statutory authority that operates in each state jurisdiction does not derogate from the proposition that it is a Queensland entity that does so operate albeit for a public purpose that extends beyond the limits of that one state.

[34] CSA then notes the differences in the legislation in each jurisdiction as indicating that AHPRA is an entity of each jurisdiction. It is the case that each State and Territory has used similar, but not identical, means to achieve the same end; the creation of a national scheme for the regulation of health practitioners. However, as I noted earlier that that has been done for the purposes of the States and Territories does not affect the status of AHPRA, the entity created in 2009.

IS AHPRA A NATIONAL SYSTEM EMPLOYER?

[35] Having found that AHPRA is the body corporate with perpetual succession established by section 18 of the Administrative Arrangements National Law, it is necessary to ascertain whether it is a national system employer.

[36] The FW Act defines national system employer and employee:

Division 3—Definitions relating to the meanings of employee, employer etc.

13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.

14 Meaning of national system employer

(1) A national system employer is:

(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of the Acts Interpretation Act 1901).

Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.

Particular employers declared not to be national system employers

(2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(a) that employer:

(i) is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

(ii) is a body established for a local government purpose by or under a law of a State or Territory; or

(iii) is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and

(b) that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

(c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.

(3) Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer.

Endorsement of declarations

(4) The Minister may, in writing:

(a) endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or

(b) revoke or amend such an endorsement.

(5) An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the endorsement, revocation or amendment.

Employers that cannot be declared

(6) Subsection (2) does not apply to an employer that:

(a) generates, supplies or distributes electricity; or

(b) supplies or distributes gas; or

(c) provides services for the supply, distribution or release of water; or

(d) operates a rail service or a port;

unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body.

(7) Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory.

[37] By operation of section 14(2) of the FW Act, an employer is not a national system employer if it is established for a public purpose by or under a law of a state or territory, and that employer is specifically declared not to be a national system employer.

[38] The referral in Queensland is governed by the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) (Qld Referral Act). The Qld Referral Act provides for a general referral of industrial relations powers to the Commonwealth except for matters excluded from the reference by section 6 of the Qld Referral Act.

[39] Section 6(d) of the Qld Referral Act excludes from the referral “matters relating to public sector employees and employers”. If AHPRA is a public sector employer it is excluded from the Queensland referral and cannot be a national system employer.

[40] The terms “public sector employee” and “public sector employer” are defined in section 3 of the Qld Referral Act as follows:

“public sector employee means –

(a) a person employed or appointed in or by a public sector employer; or

(b) the chief executive of a public sector employer.”

“public sector employer means any of the following –

(a) a Minister

(b) a department or public service officer;

(c) an employing office;

(d) a registry or other administrative office all a court or tribunal of the state of any jurisdiction;

(e) an agency, authority, commission, corporation, instrumentality, office, or any other entity, not otherwise mentioned in the preceding paragraph, established under an Act or under State authorisation for a public or State purpose.”

[41] The CSA submitted that the Queensland referral excluded AHPRA from the general referral because it falls within section 3(e) of the Qld Referral Act. AHPRA is undoubtedly an entity of the type referred to in the introductory words of section 3(e). It does not fall within sub-section (a) to (d).

[42] The question boils down to whether it was established under an Act or under State authorisation for a public or State purpose. It was established under an Act; the Administrative Arrangements Act. The question is thus further refined to whether AHPRA was established for a public or State purpose.

[43] The history for the creation of AHPRA and reasons for its creation demonstrate that it was established for an Australian public purpose. The Qld Referral Act could manifestly only exclude from the referral entities established for a Queensland public or State purpose. Albeit AHPRA was established for a purpose that encompasses Queensland, it was established for an Australian purpose - to enable the adoption of a national law to facilitate the development and implementation of a national registration and accreditation scheme for health practitioners 8. In my view, the submissions of AHPRA at paragraphs 21 to 36 correctly state the position. I set them out and adopt them as part of my reasons.

“Application of the FW Act

21. The FW Act applies to national system employers.

22. The extended definition of a national system employer in sections 30D and 30N of the FW Act includes an employer in a State that is a referring State. Where a State has referred its industrial relations powers to the Commonwealth an employer will, if they come within the terms of the referral, be a national system employer.

23. Alternatively the ordinary meaning of a national system employer as set out in section 14 of the FW Act includes:

(a) constitutional corporations (section 14(1)(a)); and

(b) a body corporate incorporated in a Territory (section 14(1)(e)).

Extended Definition

24. AHPRA contends it comes within the extended definition of a national system employer.

25. The referral in Queensland is governed by the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) (the Qld Referral Act). The Qld Referral Act provides for a general referral of industrial relations powers to the Commonwealth except for matters excluded from the reference by section 6 of the Qld Referral Act. The issue thus resolves into whether AHPRA falls within the exclusion to the referral.

26. Section 6 of the Qld Referral Act excludes from the referral, relevantly "matters relating to public sector employees and employers".

27. The terms of public sector employee and public sector employer are defined in section 3 of the Qld Referral Act as follows:

“public sector employee means –

(a) a person employed or appointed in or by a public sector employer; or

(b) the chief executive of a public sector employer.”

“public sector employer means any of the following –

(a) a Minister

(b) a department or public service officer;

(c) an employing office;

(d) a registry or other administrative office all a court or tribunal of the state of any jurisdiction;

(e) an agency, authority, commission, corporation, instrumentality, office, or any other entity, not otherwise mentioned in the preceding paragraph, established under an Act or under State authorisation for a public or State purpose.”

28. AHPRA is not caught by subsections (a) – (d) of this definition. Whilst on one view AHPRA it could be caught by subsections (e) of the definition, such a reading cuts against both the extrinsic material to which regard may be had in accordance with sections 14B of the Acts Interpretation Act 1954 Qld (Acts Interpretation Act) and the history of the provision.

29. In the second reading speech which accompanied the Fair Work (Commonwealth Powers) and other Provisions Bill (Qld) the Attorney-General and Minister for Industrial Relations said:

the state’s industrial relations powers for the private sector. This bill also sets out the conditions under which Queensland makes this referral to ensure Queenslanders the best result under the national industrial relations system.

Clauses 5 and 6 of the Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 allow the Commonwealth to legislate exclusively with respect to all employers in Queensland, with the exception of state and local government. The bill provides for the national system to cover all the private sector and some commercial elements of the public sector including government owned corporations. The Queensland system will continue to cover the 300,000 employees in the state Public Service and local government, including the Brisbane City Council and local government owned corporations” (emphasis added).

30. It is clear from this passage that the intention of Parliament was to refer the regulation of the private sector and some elements of the public sector, but to exclude from the scope of the referral the Queensland State Public Service and Queensland local Government. On any view, AHPRA could not be described as part of the Queensland State public service or Queensland local Government. For reasons expanded upon below, it has a commercial element and is analogous to a Government-owned corporation.

31. Similarly the explanatory notes which accompanied the Fair Work (Commonwealth Powers) and Other Provisions Bill (Qld) provide, relevantly:

“6 Matters excluded from the reference

Clause 6 sets out the matters that are excluded from the references under section 5, being matters relating to:

(a) Ministers or Members of Parliament;

(b) the Governor, the Office of the Governor, the Government House and its associated administrative unit;

(c) judicial officers or members of State tribunals, or their associates;

(d) public sector employees and employers;

(e) persons appointed or engaged by the Governor, Governor in Council, or a Minister under any Act, law or authority;

(f) officers or employees of the parliamentary service;

(g) law enforcement officers; or

(h) local government sector employees and employers.

As the Commonwealth Parliament has power to make laws with respect to constitutional corporations, entities that are constitutional corporations cannot be excluded from the references. However, some constitutional corporations are declared by Queensland legislation not to be “national system employees”, in accordance with section 14 of the Commonwealth Fair Work Act. For the sake of clarity, the definition of “public sector employer” provides that the term does not include the entities set out in Schedule 1. Although the entities set out in Schedule 1 may be constitutional corporations (and therefore could not be excluded from the reference), they are specified as not being “public sector employers” for the avoidance of doubt and for the assistance of persons reading the legislation.”

32. Once again, the concern of Parliament appears to have been to exclude Queensland Public Sector Entities from the referral.

33. The construction contended for by AHPRA is also supported by the legislative history of subsection (e) of the definition of public sector employer in the Qld Referral Act. This part of the definition simply picks up the definition of "government entity" contained in section 24 of the Queensland Public Service Act 2008. That section provides relevantly:

“24 What is a government entity

(1) An entity is a government entity if it is—

(a) a department or part of a department; or

(b) a public service office or part of a public service office; or

(c) an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State

(d) purpose; or

(e) a part of an entity mentioned in paragraph (c); or

(f) another entity, or part of another entity, declared under a regulation to be a government entity; or

(g) a registry or other administrative office of a court of the State of any jurisdiction”

34. It is submitted that the Qld Referral Act’s replication of the language used sub section 24 (1) (c) of the Queensland Public Service Act 2008 is consistent with an intention to exclude from the referral Queensland public sector entities. There would appear to be no intention to exclude entities like AHPRA which manifestly have a national focus.

35. Finally, the Acts Interpretation Act provides, relevantly:

“35 References to Queensland to be implied

(1) In an Act—

(a) a reference to an officer, office or entity is a reference to such an officer, office or entity in and for Queensland; and

(b) a reference to a locality, jurisdiction or other thing is a reference to such a locality, jurisdiction or other thing in and of Queensland.

(2) In an Act, a reference to an office or entity established by or under an Act need not include the words ‘Queensland’ or ‘of Queensland’ merely because the words form part of its name or title.”

36. The effect of this provision would appear to be that the reference to "an agency... established under an Act... for a public or State purpose" is a reference to an agency "in and for Queensland" and should not be taken to be a reference to an Agency like AHPRA which is a national agency created for a national purpose.”

[44] AHPRA’s application under section 240 of the Act is properly made and Fair Work Australia is able to deal with it.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr C. O’Grady, of counsel, appeared for AHPRA.

Ms L. Kennewell, appeared for the CPSU.

Hearing details:

2012

Melbourne, Perth

June 7, August 13.

 1   Attachment "CR-5" to the statement of Chris Robertson, Exhibit A1.

 2   Section 19

 3   Section 23

 4   Section 28

 5   Section 31

 6   R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1982 - 1983) 158 CLR 535, per Deane, J at p 586 - 7

 7   Ibid at p.587

 8 Preamble to the Administrative Arrangements Act

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