B & T Developments (ACT) 3 Pty Ltd & Ors v ACT Planning and Land Authority & Construction Occupations Registrar & Anor (Administrative Review)

[2014] ACAT 75

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

B & T DEVELOPMENTS (ACT) 3 PTY LTD & ORS v ACT PLANNING AND LAND AUTHORITY & CONSTRUCTION OCCUPATIONS REGISTRAR & ANOR (Administrative Review) [2014] ACAT 75

AT 11/110 and AT 11/124

Catchwords:             ADMINISTRATIVE REVIEW – reviewable decisions – consent agreement – section 55 ACT Civil and Administrative Tribunal Act 2008 – enforcement – administrative review proceedings – whether tribunal has jurisdiction to make an order for purposes of section 74 ACT Civil and Administrative Tribunal Act 2008

Legislation:ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 16-17, 22, 55, 66, 68-69, 74, Dictionary, Part 4, Part 4A, Div 6.2-6.3.

Human Rights Commission Act 2005 (ACT) s 53E.

Planning and Development Act 2007 (ACT) ss 355, 361.

Construction Occupations (Licensing) Act 2004 (ACT) ss 38, 40.

Administrative Appeals Tribunal Act 1989 (Cth) s 43.

Magistrates Court Act 1930 (ACT) s 258.

Subordinate              ACT Civil and Administrative Tribunal Regulations 2009

Legislation:s 5.

Cases:Powell v Administrative Appeals Tribunal (1998) 89 FCR 1

Madafferi v the Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326

Pochi v Minister for Immigration and Ethnic Affairs (1980) 4 ALD 139

Isaacs v The Commissioner of Taxation (2006) 151 FCR 427

Winthrop and Smith v Minister for Immigration and Ethnic Affairs (1980) 2 ALD 873

Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585

Tribunal:                  Professor P. Spender – Presidential Member

Date of Orders:  4 December 2014
Date of Reasons for Decision:         4 December 2014

AUSTRALIAN CAPITAL TERRITORY        )          AT 11/110

CIVIL & ADMINISTRATIVE TRIBUNAL     )          and AT 11/124

BETWEEN:

B & T DEVELOPMENTS (ACT) 3 PTY LTD

B & T CONSTRUCTIONS (ACT) PTY LTD

and CORNELIUS HANK VAN ROON

Applicants

AND:

ACT PLANNING AND LAND AUTHORITY

Respondent 1

CONSTRUCTION OCCUPATIONS REGISTRAR

Respondent 2

THE OWNERS UNITS PLAN 3324

Party Joined

TRIBUNAL:            Professor P. Spender – Presidential Member

DATE:  4 December 2014      

ORDER

Upon the Tribunal finding that it lacks jurisdiction to make the orders sought, the applications for interim orders are dismissed.

………………………………..

Professor P. Spender

Presidential Member

REASONS FOR DECISION

1. These reasons explain why the Tribunal considers that it lacks jurisdiction to make the orders sought under section 74 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). In summary, the Tribunal considers that the reference to ‘order’ in section 74(1) should not be read as including a final decision made under sections 55(1)(c) and 68 of the ACAT Act in an administrative review matter. Therefore there is no relevant ‘order’ which would ground the consequential orders in section 74(2) of the ACAT Act, as sought in the application for interim orders.

2. In the reasons below, a reference to “ACAT” or “tribunal” refers to the ACT Civil and Administrative Tribunal generally, whereas “Tribunal” refers to the current member.

Background

1. The original applicants in these proceedings were B & T Developments (ACT) 3 Pty Ltd, B & T Constructions (ACT) Pty Ltd and Cornelius Hank Van Roon.  The respondents are the ACT Planning and Land Authority (ACTPLA) and the Construction Occupations Registrar.  The subject matter of the application was a unit title property in Forrest (the property).  The owners corporation of the relevant property, The Owners Units Plan 3324, was joined to the proceedings.  For ease of reference, the respondents shall be referred to in these reasons as the ‘Regulators’ and the applicants shall be referred to collectively as the ‘Developers’.

2. This proceeding concerns an application for interim orders by the Regulators under section 74 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). The applications for interim orders will be hereafter referred to as the ‘enforcement applications’. 

3. The background to the enforcement applications was that a rectification order was made by the Construction Occupations Registrar under section 38 of the Construction Occupations (Licensing) Act 2004 (COLA Act) against the Developers on 18 October 2011 and a controlled activity order was made by the ACT Planning and Land Authority (ACTPLA) under section 355 of the Planning and Development Act 2007 (the Planning Act) against the Developers on 3 November 2011 in relation to some building work undertaken by the Developers at the property. The Developers commenced proceedings in the tribunal to set aside both orders. On 11 July 2012, the parties reached an agreement regarding the Developers’ applications and the terms of that agreement formed the terms of an order made by the tribunal under section 55 of the ACAT Act on the same day (the Section 55 Order).

4. The enforcement applications were filed on 22 July 2013 and amended on 30 August 2013.  The amended applications sought the following orders:

   (1)The applicant pay $20,000, or such other sum as the Tribunal deems fit, to the Territory arising from the applicant’s non-compliance with the order of the Tribunal made on 11 July 2012.

   (2)Any other orders that the Tribunal sees fit.

5. The grounds relied upon for the orders were as follows:

   (1)An order was made by the Tribunal on 11 July 2012, in matter numbers AT 11/110 and AT 11/124, which gave effect to the consent agreement filed by the parties in the Tribunal on 27 June 2012.

   (2)The consent agreement lists various items of work the subject of the Rectification Order dated 18 October 2011 to be carried out by the applicant.

   (3)Subsequent to the Tribunal’s order dated 11 July 2012, the applicant has failed to complete the works the subject of the Tribunal’s Order dated 11 July 2012.

   (4)As a result the applicant is in breach of the Tribunal Order.

6. Similar applications were made mutatis mutandis in relation to the controlled activity order dated 3 November 2011.

7. The relevant provisions of the Section 55 Order stated as follows:

   Whereas –

   (1)the parties have reached an agreement as to the terms of a decision of the Tribunal that is acceptable to them;

   (2)the terms of the agreement have been reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal;

   (3)the Tribunal is satisfied that a decision consistent with those terms would be within the powers of the Tribunal;

   (4)by consent, the Tribunal makes orders in the terms of the agreement signed by the parties and annexed hereto as Attachment A.

1. The agreement that constituted Attachment A of the Section 55 Order required the Developers to undertake certain work. The Regulators allege that at least some of this work had not been done within the timeframe specified in the Section 55 Order. The Regulators therefore sought to enforce the Section 55 Order against the Developers by way of an order made by the tribunal under section 74 of the ACAT Act.

2. Section 74 of the ACAT Act states as follows:

   74Failure to comply with order

   (1)A party to an application must not, without reasonable excuse, fail to comply with a tribunal order.

   (2)If a party contravenes subsection (1), the tribunal may do 1 or more of the following:

   (a)order the person to pay to the Territory a stated amount (not more than any amount prescribed by regulation);

   (b)if the party is the applicant—strike out the application in relation to the dispute;

   (c)if the party is the respondent—make an order in favour of the applicant.

   (3)If the tribunal orders a person who is the subject of an application for occupational discipline to pay an amount, the tribunal must tell the person that, if the person does not pay the amount, the person’s licence or registration may be suspended or cancelled under section 76.

   (4)Failure to tell a person that the person’s licence or registration may be suspended or cancelled does not affect any action a registrar takes in relation to the person under section 76.

   (5)This section does not limit any other power of the tribunal under this Act.

1. The Developers argue that the tribunal does not have jurisdiction to make the order sought by the Regulators.  The Developers do not concede that they have failed to comply with the tribunal order but the parties assumed this to be the case only for the purpose of determining the question of jurisdiction. 

The Regulators’ Arguments

1. The Regulators argued that section 74(2) of the ACAT Act provides certain powers to assist the tribunal in giving effect to its own process in the event of non-compliance with a prior tribunal order. These powers stand ‘separate and apart’ from enforcement of orders made by way final relief, whether money or non-money orders, which are matters for the Magistrates Court under section 71 of the ACAT Act. Section 74(2)(a) of the ACAT Act provides one of those powers, namely for an order that a person pay a ‘stated amount’ by reason of the non-compliance. The ‘stated amount’ in section 74(2)(a) should be determined by reference to the seriousness, nature and circumstances of the non-compliance.

2. The Regulators argue that the tribunal ordered the work to be done in the Section 55 Order and, as a consequence, sections 68 and 69 of the ACAT Act operated. These provisions state as follows:

   68Review of decisions

   (1)This section applies if the tribunal reviews a decision by an entity.

   (2)The tribunal may exercise any function given by an Act to the entity for making the decision.

   NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

   (3)The tribunal must, by order—

   (a)confirm the decision; or

   (b)vary the decision; or

   (c)set aside the decision and—

   (i)make a substitute decision; or

   (ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.

69Effect of orders for administrative review

(1)This section applies if the tribunal makes an order under section 68 (3) in relation to a decision.

(2)The order—

(a)is taken to be the decision of the decision-maker; and

(b)takes effect from the day the tribunal makes the order, unless the tribunal orders otherwise.

1. The Regulators argued that when the tribunal made its order varying the decisions under review by ordering the Developers to perform the work described in the Section 55 Order and within the timeframe stated in the order, it was exercising a power under section 68 of the ACAT Act (in this case via section 55 of the ACAT Act), not directly exercising the powers conferred by the applicable enactments under which the original decisions were made i.e. the COLA Act and the Planning Act. However, section 68 invested the tribunal with all the powers that were available to the original decision-makers, whether relied upon or not. In that way, relevant to this case, the tribunal had power under section 38 of the COLA Act and section 355 of the Planning Act to order, and ordered in this case, that the applicants perform the work described in the Section 55 Order and within the period specified. The fact that section 69(2)(a) of the ACAT Act operates so that the tribunal’s Section 55 Order ‘is taken to be the decision of the decision-maker’ in each case does not change the fact that the tribunal made the order. Therefore, for the purposes of section 74(2)(a) of the ACAT Act the tribunal’s power to order a person to ‘pay to the Territory a stated amount’ is engaged when a party, without reasonable excuse, fails to comply with a ‘tribunal order’.

2. The Regulators further argue that there is no reason to distinguish orders made in the tribunal’s civil or disciplinary jurisdictions from orders made in its administrative review jurisdiction. The tribunal’s jurisdiction must be given its full operation. Further, the tribunal’s power under section 74(2)(a) – (c) of the ACAT Act allows the tribunal to impose consequences of different kinds, as appropriate, when a party does not comply with a tribunal order.

3. The Regulators made a separate submission regarding the ACT Civil and Administrative Tribunal Regulations 2009 (the ACAT Regulations).  Section 5 of the ACAT Regulations states as follows:

   5Maximum amount payable for failure to comply with occupational discipline order—Act, s 74 (2) (a)

   The following amounts are prescribed:  

   (a)for an individual—$4 000;

   (b)for a corporation—$20 000.

1. The Regulators argued in the case of non-compliance with other tribunal orders, the reference to ‘occupational discipline order’ in section 5 of the ACAT Regulations means that ‘the stated amount’ may only be so ordered in that category of case. Section 5 of the ACAT Regulations does not imply that orders under section 74 of the ACAT Act can only be made in occupational discipline matters because the regulation cannot narrow the ambit of the power under section 74(2)(a) of the ACAT Act. There is no reason to imply a narrowing of jurisdiction because, as a matter of statutory interpretation, the power under section 74(2)(a) should be given its full operation.

2. The Regulators further argued that the tribunal’s orders must be understood as being operative orders that govern the rights and obligations of the parties.  They are not just a conduit from the primary order that was made by the original decision-maker.  Therefore, the tribunal’s order stands in its own right and operates independently as orders between the parties.

3. The Regulators contended that once recognition is given to the fact that the operative order governing the rights and obligations of the parties is an order under section 68 of the ACAT Act, everything falls into place. For example, if a party was not happy with an order of the tribunal made under section 68, its remedy is to appeal against the order of the tribunal – this demonstrates that the tribunal order is not a revision or variation of the primary decision-maker’s decision under section 38 of COLA Act or section 355 of the Planning Act. The Regulators relied upon the reasoning of French J (as he then was) in Powell v Administrative Appeals Tribunal[1] (Powell) where his Honour commented upon the power in section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth). This provision is extracted in the schedule to these reasons below. French J stated the following in Powell:

   The Tribunal is empowered to do what the decision-maker under review could do. The source of its power is s 43(1) ... The content of the power it confers is defined by the particular enactment under which the decision to review was made. It may be arguable that where the Tribunal substitutes a new decision for the old it can be said to exercise power under the relevant enactment. I am inclined to the contrary view that even in that case it exercises power conferred by s 43(1) of the Administrative Appeals Tribunal Act and that in doing so it cannot be regarded as exercising power under the other enactment. However that may be, when the Tribunal affirms a decision in my opinion it exercises a power conferred by s 43(1 )(a). It does not exercise afresh the power conferred by the enactment under which the decision reviewed was made.
   ...
   

   [1](1998) 89 FCR 1.

   [2]Powell v Administrative Appeals Tribunal (1998) 89 FCR 1, 12.

   Similar reasoning led North J in Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587 to conclude that a decision of the Refugee Review Tribunal under s 415(2)(a) of the Migration Act, affirming a decision of the Minister to refuse the grant of a protection visa, was not itself a decision to refuse the grant of the visa. It was not therefore reviewable by the Administrative Appeals Tribunal under s 500(1)(c) of the Act.[2]

4. The Full Court of the Federal Court in Madafferi v Minister for Immigration and Multicultural Affairs[3] (Madafferi) similarly stated:

   By virtue of s 43 of the Administrative Appeals Tribunal Act 1975
   empowering it to “exercise all the powers and discretions that are conferred by the relevant enactment on the person who made the decision”, the AAT stands in place of the primary decision-maker - Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99; Liedig v Commissioner of Taxation (Cth) (1994) 50 FCR 461; Commissioner of Taxation (Cth) v Swift (1989) 20 ATR 1434; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. However as was pointed out in Powell v Administrative Appeals Tribunal (1998) 89 FCR 1 at 12 (French J) the source of the AAT's power is s 43 of the AAT Act. It does not exercise afresh the power conferred by the enactment under which the decision was made. A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a
   power conferred by the enactment under which the primary decision-maker has made his or her decision. See also Szajntop v Gerber (1992) 23 ATR 403 (Hill J). Analogous reasoning in Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 507 led North J to conclude that a decision of the Refugee Review Tribunal affirming a decision of the Minister to refuse a visa was not itself a decision to refuse the grant of the visa. The reasoning in Powell led to the conclusion that a decision of the AA T affirming a delegate's decision was not a judicially reviewable decision under the Migration Act and therefore
   was unaffected by the limitations on the jurisdiction of the Court imposed by Pt 8 as it stood prior to the amendments which came into effect in

   October 2001.

   [3] (2002) 118 FCR 326.

5. The Regulators therefore contended that the tribunal, when it assumes the powers that were available to the primary decision-maker due to the operation of section 68(2) of the ACAT Act, exercises power under section 68 to make what it considers to be the correct and/or preferable decision and orders accordingly what must be done. Thus, the Regulators asserted that, in every way, the tribunal decides the question afresh and by reference to the evidence before it, regardless of what happened or did not happen or what evidence was or was not before the primary decision-maker. Therefore the operative decision is that of the tribunal not that of the primary decision-maker. In support of the latter proposition, the Regulators relied upon Pochi v Minister for Immigration and Ethnic Affairs[4], which confirmed that all the powers available to the decision-maker are available to the tribunal, provided they were available for the purposes of making the decision under review. 

   [4](1980) 4 ALD 139, 143.

6. The Regulators emphasised that these are de novo proceedings and therefore (as discussed below) the distinction drawn by the Developers between administrative review of a decision and a decision in response to a different application to the tribunal, such as a civil dispute or an occupational discipline matter, is a distinction without any real substance at all, because the tribunal start afresh in exercising its powers in an administrative review proceeding.  In support of this proposition, the Regulators relied upon Isaacs v The Commissioner of Taxation[5] as follows:

   Section 43 of the Tribunal Act empowers the Tribunal to exercise all the powers and discretions conferred upon the decision-maker whose decision is [435] under review, provided it does so for the purpose of reviewing a decision.

   Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. The review of the objection decision involved the question of whether the assessment of the Taxpayer’s liability for tax, in respect of the 1998 Tax Year, was correct. Accordingly, the Tribunal could exercise all of the Commissioner’s powers and discretions in relation to the making of the assessment for the 1998 Tax Year. 

   ..

   Further, it is neither necessary nor permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the Commissioner’s powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review, or whether the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review (see Commonwealth Bank Offıcers Superannuation Corp Pty Ltd v Commissioner of Taxation (Cth) (2005) 148 FCR 427 at [29]).

   [5](2006) 151 FCR 427, 434.

1. The Regulators acknowledge that the tribunal is not, in strict legal terms, making a rectification order or a controlled activity order, even if it varies a decision or substitutes a decision for one that has been made before. But it did order (in this case) that certain work was to be done and specified the time within which it was to be done. Therefore its orders were made pursuant to section 68 of the ACAT Act, not the power that was conferred by the enactment under which the original decision was taken. Therefore, in this case the stipulation that certain work is to be done with its certain specified time becomes an operative order of the tribunal which, if not complied with, engages the tribunal’s power under section 74 to impose sanctions.

2. As elaborated below, the Developers argued that enforcement raises different issues in administrative review matters and it is necessary to look to the authorising laws which provide for enforcement. The Regulators accepted that there are other provisions in other acts which provide for enforcement however they argued that section 74 of the ACAT Act has nothing to do with the enforcement of the primary decision. Although the Regulators acknowledged that section 74 contemplates consequences for not complying with a procedural order, they asserted that it is possible to impose a penalty that a sum be payable to the Territory of a stated amount for non-compliance with a substantive requirement when parties, for whatever reason, do not comply with a tribunal order. When queried about the operation of section 69(2) of the ACAT Act, which operates when the tribunal makes an order under section 68(3) in relation to a decision and stipulates that the order is taken to be a decision of the decision-maker, the Regulators said that section 68(2) enables the relevant regulator to take or treat the tribunal’s order (made under an entirely separate power) as if it were a rectification order or a controlled activity order and act accordingly. But none of that changes the central proposition that the order of the tribunal is an order of the tribunal, section 69(2) does not turn it into something else. It merely enables the tribunal order to be taken for the purposes of the relevant legislation to be rectification order or a controlled activity order. But it still stands and operates as an order of the tribunal, even if section 69(2) gives it some linkage to other legislation.

The Developers’ Arguments

1. The Developers argued that the tribunal has not ‘ordered’ the Developers to undertake the work in the rectification order. Therefore there is no ‘order’ of the tribunal that has been breached. The Developers contended that the tribunal had exercised its power of administrative review to vary the respondent’s decision in the Section 55 Order. It is not an ‘order’ to undertake the work. Therefore there is no relevant ‘order’ for the purposes of section 74 of the ACAT. The Developers argued, for example, that the Regulators’ decision to issue the Developers with a rectification order was made under Part 4 of COLA Act. The order which the Regulators may make is limited by the terms of section 38 of COLA Act. The COLA Act provides remedies for contravention of rectification orders. For example, section 40 provides that it is an offence for a person to intentionally fail to comply with a rectification order.

2. The consent decision of 11 July 2012 is not an ‘order’ to undertake rectification work. It was merely the tribunal making an administrative decision pursuant to a power to do so where the parties had reached agreement rather than making a decision after a tribunal hearing. The Developers contend that the tribunal’s capacity to enter a decision under section 55 is limited by subsection 55(1)(c), that is the tribunal can only make such a decision if the agreed terms would be ‘within the powers the tribunal’. It is therefore necessary to examine the powers of the tribunal more generally. The Developers submitted that a decision under section 55 of the ACAT Act is confined by the powers of the tribunal in section 68 of the ACAT Act. Those powers may be supplemented by a further powers set out in an ‘authorising law’. The Developers drew attention to the definition of ‘authorising law’ in the Dictionary of the ACAT Act:

   “authorising law” means–

   (a)     a territory law that provides that an application may be made to the tribunal;

   and

   (b)     for a civil dispute-includes this Act.

3. The Developers contended that section 55 of the ACAT Act does not extend the powers of the tribunal beyond those contained in section 68 exercisable in respect of the relevant ‘authorising laws’ i.e. section 38 of the COLA Act and section 361 of the Planning Act. Importantly, the Developers argued that section 55 of the ACAT Act gives no original power to the tribunal to order rectification work to be undertaken.

4. The Developers emphasised the tribunal’s administrative review role. The jurisdiction conferred on the tribunal by the ACAT Act falls into 3 broad categories. Part 4 of the ACAT Act confers jurisdiction on the tribunal to determine ‘civil dispute applications’ in sections 16 and 17. Section 16 of the ACAT Act sets out the kinds of matters that may arise in civil dispute applications before the tribunal and section 22 provides that the tribunal has, in relation to civil disputes, the same powers the Magistrates Court i.e. those powers set out in section 258 of the Magistrates Court Act. The operative event in relation to civil disputes is the tribunal ordering something be done.

5. The second category of jurisdiction conferred on the tribunal, argued the Developers, is the ability to make orders for ‘occupational discipline’. This jurisdiction is provided for in Division 6.2 of the ACAT Act. Section 66 of the ACAT Act provides a series of orders which the tribunal may make against the respondent to an occupational discipline application. Here the tribunal is the ‘first port of call’. Similarly, argued the Developers, section 53E of the Human Rights Commission Act 2005 provides that ACAT must make certain orders where an unlawful act of discrimination has been found to have occurred.  These orders are ACAT orders and the powers that ACAT may exercise under this provision are analogous to injunctive and compensatory powers. 

6. These provisions must be contrasted to the administrative review jurisdiction of the tribunal. Although there is no doubt that the tribunal exercises de novo power under section 68 of the ACAT Act, the Developers argued that where the ACAT Act deals with administrative review it does not speak in terms of the tribunal ordering things to be done in the same sense that you might be ordered to do something in the civil jurisdiction or as a consequence of the findings of unlawful discriminatory conduct.

7. Administrative review is the third category of jurisdiction. Part 4A of the ACAT Act sets out procedures for the tribunal to deal with applications for ‘administrative review’. The jurisdiction of the tribunal to hear applications for administrative review derives not from the ACAT Act but from the authorising laws which provide that such an application may be made. The outcome of the administrative review process before the tribunal is to be found in Division 6.3. Although the tribunal might may make the ‘orders’ set out in section 68 with respect to a decision under review, the event which has ongoing operative effect is the ‘decision’ which the tribunal has reviewed, whether it be confirmed, varied or set aside. The effect given to any such ‘decision’ arises not because the tribunal has ‘ordered’ that the actions take place but because of statutory effect which the authorising law gives to the ‘decision’. It is not that the tribunal has ‘ordered’ anyone to do anything that an obligation arises. It is because there is a statutory decision on foot that any obligation arises. Relying upon Powell v Administrative Appeals Tribunal[6] and Winthrop and Smith v Minister for Immigration and Ethnic Affairs[7], the Developers contended that the metes and bounds of that obligation and the means of enforcing it are found in the provisions of the authorising law.

   [6](1998) 89 FCR 1, 11-13.

   [7](1980) 2 ALD 873, 876.

8. The Developers further submitted that this is consistent with section 69 of the ACAT Act which provides that ACAT’s decision takes effect as the decision of the primary decision-maker. It is enforceable as if it is a decision of the primary decision-maker and not because of some independent enforcement power emanating from the fact of it being an ACAT ‘order’. Therefore when ACAT exercises its power pursuant to section 68 of the ACAT Act in respect of rectification order decision under section 38 of the COLA Act, the means of enforcing the tribunal’s decision are those contained within the COLA Act. This is entirely consistent with a tribunal ‘standing in the shoes of the decision-maker’ when it exercises its administrative review jurisdiction.

9. Therefore the Developers stated that the tribunal has no jurisdiction to make an order under section 74 in the circumstances of this case. Compliance with the decision reached by the tribunal on 11 July 2012 is achieved by the provisions of the COLA Act and the Planning Act. Effect is given to the decision in accordance with the provisions of the COLA and Planning Acts. There is simply no ‘order’ made by the tribunal upon which the section 74 of the ACAT Act operates.

10. The Developers pointed to an inconsistency that would arise if the Tribunal accepted the Regulators’ argument. On this scenario, if a decision comes to the tribunal, even if it is not set aside or varied, then all of a sudden, merely by virtue of the fact that it is before the tribunal, the Developers would then be exposed to a new range of penalties for non-compliance. In particular, the Developers would have no capacity to take advantage of the qualifications and defences that are set out in the COLA Act and the Planning Act which operate at the point of the decision by the primary decision-maker. Therefore, merely by virtue of coming before this tribunal, the Developers would lose protections that might otherwise have been available to them. For example section 40 of the COLA Act makes it an offence to fail to comply with a rectification order. This requires a prosecution and a defendant would have certain protections, including the right to silence and proof beyond reasonable doubt. Further, the prosecution would have to show that the person intentionally failed to comply with a rectification order. This stipulation is not contained within section 74 of the ACAT Act. Further, there are specific defences provided in section 40(3) of the COLA Act that may be pleaded as a defence to a prosecution e.g. if the party proves that he or she is in partnership and they did not know about the failure to comply. There is no such requirement in section 74 of the ACAT Act. Therefore, merely by an excursion to the tribunal, without even a variation of the order, the respondent would be exposed to a range of penalties significantly different to that which is provided under the COLA Act.

11. The Developers argued that it is important not to overlook the consistency of the enforcement regimes when interpreting section 74 of the ACAT Act. Another example is section 361 of the Planning Act which states that the maximum penalty for non-compliance with a controlled activity order is set out in Schedule 2 Column 3 of the Planning Act which, in turn, provides for a maximum penalty of 60 penalty units which was $6600 for an individual. The Developers argued that this scheme is not consistent with the Regulators’ argument which would allow someone to come to the tribunal to obtain a penalty of $20,000 from the tribunal under section 74 of the ACAT Act. When the legislature has devised a variety of different enforcement mechanisms in the authorising legislation, it is difficult to imagine that it was intended that this enforcement regime could be sidestepped by going to ACAT which exposes the respondent to a limitless penalty under section 74 of the ACAT Act.

Consideration

1. The Tribunal has concluded that it does not have jurisdiction to make the orders sought by the Regulators in this case. Although the Tribunal recognises the force of the Regulators’ arguments about the operation of the words ‘order’ in section 55 and 74 of the ACAT Act, the provisions must be read in the context of the ACAT Act as a whole and in particular regard must be had to the overarching obligation of the tribunal under section 55(1)(c) to be satisfied that an order or decision in, or consistent with, the agreed terms would be —

   (i)within the powers of the tribunal; and

   (ii)appropriate for the tribunal to make. 

2. The words ‘decision in’ in section 55(1)(c) have been emphasised above because that provision contemplates the distinction between an order of the tribunal and a decision of the same tribunal. Importantly, the tribunal considers that the words in section 55(1)(c) must be read in conjunction with sections 68 and 69 of the ACAT Act. Section 68 makes it perfectly clear that there are certain, relatively narrow, outcomes from an application for administrative review in the tribunal. Section 69 expressly states that an effect of an order for administrative review is that it is taken to be the decision of the original decision-maker. The power in section 74 must be read subject to the express wording in sections 55, 68 and 69 when enforcement of an administrative review order is sought.

3. The Developers are inviting the tribunal to disregard the reference to the word ‘order’ in section 55, or interpret the word ‘order’ in section 55 to mean the same as it does under section 43 of the Administrative Appeals Tribunal Act – that is ‘make a decision’. It is not appropriate to completely disregard the word ‘order’ in section 55 of the ACAT Act in relation to administrative review proceedings, not only because it would create a tautology in section 55(1)(c) and section 55(2) but also because section 69 expressly contemplates that the tribunal has made an ‘order’ under section 68(3) in relation to a decision. Similarly the mandatory language of section 68(3) requires that the tribunal must, by order, confirm, vary or set aside the decision. However, to enable sections 55, 68 and 69 to be integrated with the general scheme of administrative decision making, the word ‘order’ in section 55(2) must be interpreted as facilitating the making of the decision in the agreed terms. The consequence of making that decision is that the order is taken to be the decision of the primary decision-maker due to the operation of section 69(2)(a) and the enforcement of the decision lies in the authorising laws. Although the tribunal accepts the arguments of the Regulators that the decision of the tribunal is a fresh and independent decision arising from a de novo hearing which must be distinguished from the decision of the primary decision-maker, the effect of section 69(2)(a) is that the order is regarded as a decision of the decision-maker with the requisite statutory consequences for enforcement. The order made by ACAT pursuant to section 68(3) is not an order which is independently enforceable under section 74, because there is no residual order other than the section 68(3) decision which is taken to be that of the primary decision-maker under section 69(2)(a).

4. This conclusion does not limit the circumstances in which the tribunal can make orders in the administrative review division of the tribunal (or otherwise) because the ACAT Act uses the word ‘order’ to refer to many types of interlocutory and dispositive orders. However, the consequences of an order under section 68, which forms the foundation of the tribunal’s power to make orders under section 55 in administrative review matters where the parties have filed agreed terms, is a decision and not an order which is capable of supporting a remedy where the tribunal orders the person to pay to the Territory a stated amount under section 74(2)(a).

5. The consequence of a failure to comply with an order under section 55 in administrative review proceedings must take into account the nature of the power that has been exercised under section 68 ACAT Act. The tribunal’s jurisdiction in administrative review proceedings is derived from the authorising laws. Where an authorising law confers power upon the tribunal to review a reviewable decision, the tribunal exercises the power under section 68 of the ACAT Act, by ‘standing in the shoes’ of the original decision-maker. Therefore determining the consequence of a failure to comply with a section 55 order in administrative review proceedings, the tribunal must consider the consequences of a failure to comply with the varied decision which are stipulated in the authorising law.

6. Similarly, the Section 55 Order clearly states that an order has been made by the tribunal, but cannot be interpreted to be the conferral of an original power upon the tribunal to make an order for work to be done in a time that is stipulated in the terms stated in the agreement made between the parties on 11 July 2012. In contradistinction to the power that is exercised by the tribunal in civil claims, certain occupational discipline applications and discrimination matters, when the tribunal exercises a merits review power in the administrative review division, it is derived from the decision of the original decision-maker.

7. The Tribunal notes the arguments made by the Regulators regarding the Powell and Madafferi cases and agrees with the point made by the Regulators about those cases, particularly that of Justice French in Powell, that the tribunal is not ‘exercising power under the other enactment’ rather, it is exercising a power conferred by section 68 of the ACAT Act. It does not exercise afresh the power conferred by COLA Act or the Planning Act upon the primary decision-maker. However, again to paraphrase Justice French, the content of the power exercised by ACAT is defined by the particular enactment under which the decision under review was made. This is exemplified by the reasoning of North J in Daher v Minister for Immigration and Ethnic Affairs[8]  where North J concluded that the Refugee Review Tribunal, in affirming a decision of the Minister to refuse a protection visa, was not itself making a decision to refuse the grant of the visa.

   [8](1996) 70 FCR 585, 587.

8. Although when reviewing a decision the tribunal exercises a de novo jurisdiction, its review jurisdiction is derived from the relevant enactment.  In particular the jurisdiction does not result in the ordering of a rectification order or a controlled activity order.

9. Therefore ACAT is not exercising jurisdiction which is equivalent to the powers it possesses in relation to civil claims with a corresponding remedial framework. Rather, section 69 of the ACAT Act expressly states that the order is taken to be the decision of the primary decision-maker. This supports the interpretation that the remedies provided in the authorising laws flow from the ACAT order. Therefore the tribunal cannot order the person to pay the Territory a stipulated amount for breach of the Section 55 Order. Rather, the remedies for any failure of the developers to comply with the agreement lie in the provisions of the COLA Act which regulate the failure to comply with rectification order or the Planning Act regarding the controlled activity order.

10. The Tribunal’s reasoning above is primarily derived from the wording of the relevant provisions of the ACAT Act, by analogy with section 43 of the Administrative Appeals Tribunal Act 1989 (Cth) and comparing the nature of the tribunal’s merits review power in its administrative review division with its original jurisdiction in relation to civil claims, occupational regulation and discrimination. 

1. However, the arguments made by the Developers about the consistency of the enforcement regimes in the authorising laws and the ACAT Act is also persuasive. It seems implausible that the failure to comply with a controlled activity order would result in a maximum penalty of $6600 for individuals in the Planning Act, but interpreting it as an order under section 74 of the ACAT Act would result in an unlimited penalty. In this regard, the Tribunal acknowledges that the Regulators have only sought $20,000, perhaps because this amount is comparable to the maximum amount payable in an occupational discipline order under Regulation 5 of the ACAT Regulations. The Tribunal agrees with the parties’ submissions that section 74 of the ACAT Act cannot be read down by section 5 of the ACAT Regulations. However, the Tribunal is not persuaded that the legislature intended for two penalty regimes to operate in tandem, one contained in authorising legislation which provides a maximum penalty of $6600 and some protections for the respondent and another with an unlimited penalty which is bereft of any comparable protections.

2. The Tribunal must emphasise that its conclusion is only relevant to final orders in administrative review matters made under section 55 of the ACAT Act. These reasons are not an exhaustive statement about the remedial consequences of sections 55, 68 and 69 of the ACAT Act. It merely concludes that the tribunal does not have jurisdiction to order a person to pay a stated amount under section 74 where there has been an alleged breach of the tribunal’s order under section 68 of the ACAT Act via orders made under section 55 of the ACAT Act.

Conclusion

1. The tribunal does not have jurisdiction in this matter to order the Developers to pay the Territory the sum of $20,000.  The application for interim orders is accordingly dismissed.

   ………………………………..

   Professor P. Spender

   Presidential Member

Schedule

Section 43 Administrative Appeals Tribunal Act 1975 (Cth)

(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

HEARING DETAILS

FILE NUMBER:	AT 11/110 and AT 11/124
PARTIES, APPLICANTS:	B & T Developments (ACT) 3 Pty Ltd; B & T Constructions (ACT) Pty Ltd; and Cornelius Hank van Roon
PARTIES, RESPONDENTS:	ACT Planning and Land Authority, and Construction Occupations Registrar
PARTIES, PARTY JOINED	The Owners – Units Plan No 3324
COUNSEL APPEARING, APPLICANTS	Mr G McCarthy
COUNSEL APPEARING, RESPONDENTS	Mr P Walker SC
SOLICITORS FOR APPLICANT	ACT Government Solicitors
SOLICITORS FOR RESPONDENT	Trinity Law
SOLICITORS FOR PARTY JOINED	Goodman Law
TRIBUNAL MEMBER:	Professor P Spender