Bates v Construction Occupations Registrar (Occupational Discipline)
[2025] ACAT 64
•18 September 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BATES v CONSTRUCTION OCCUPATIONS REGISTRAR (Occupational Discipline) [2025] ACAT 64
OR 15/2025
Catchwords: OCCUPATIONAL DISCIPLINE – Construction Occupations – Reviewable decisions – Tribunal’s jurisdiction to review decision of respondent to disqualify applicant from holding a licence after applicant incurred 15 or more demerit points – Construction of Construction Occupations (Licensing) Regulation 2004 - Tribunal does not have jurisdiction
Legislation cited: Acts Interpretation Act 1901 (Cth), s 15AA
ACT Civil and Administrative Tribunal Act 2008, ss 9, 32, 66
ACT Civil and Administrative Tribunal Legislation Amendment Bill 2008
ACT Civil and Administrative Tribunal Legislation Amendment Act 2008
Construction Occupations (Licensing) Act 2004, ss 56, 60, 61, 89, 91, 92, 93, 95, 97, 98, 100, 123A, 123C, 129
Construction Occupations (Licensing) Bill 2003
Human Rights Act 2004, ss 21, 30
Legislation Act 2001, ss 13, 43, 136, 138, 139, 141, 142, 246, 247, 250
Magistrates Court Act 1930
Statute Law Amendment Act 2009 (No 2), Sch 1
Statute Law Amendment Act 2011 (No 3), Sch 3
Subordinate
Legislation cited: Construction Occupations (Licensing) Regulation 2004, cl 42A, 42B, Sch 4
Magistrates Court (Construction Occupations Infringement Notices) Regulation 2004
Cases cited
Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning and Land Authority [2008] ACTCA 9
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
Disorganized Developments Pty Ltd v South Australia [2023] HCA 22
Eastman v Australian Capital Territory [2014] ACTSC 105
In The Matter of a Bail Application by Isa Islam [2010] ACTSC 147
Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33
Northern Land Council v Quall [2020] HCA 33
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Thiess v Collector of Customs [2014] HCA 12
List of
Texts/Papers cited: Hansard: Debates of the Legislative Assembly for the Australian Capital Territory, 24 June 2003
The Allen Consulting Group, “Occupational Licensing in the ACT Building and Construction Industry: A National Competition Policy Review of the Building Act 1982, the Electricity Act 1971, and the Plumbers, Drainers and Gasfitters Board Act 1982: Final Report,” August 2000
Government Response to the Final Report on the National Competition Policy Review of Occupational Regulation in the ACT Building and Construction Industry Conducted by the Allen Consulting Group - October 2000
Tribunal:Presidential Member J Lucy
Date of Orders: 18 September 2025
Date of Reasons for Decision: 19 September 2025
Date of Publication: 26 September 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 15/2025
BETWEEN:
JOHN DAVID BATES
Applicant
AND:
CONSTRUCTION OCCUPATIONS REGISTRAR
Respondent
TRIBUNAL:Presidential Member J Lucy
DATE:18 September 2025
ORDER
The Tribunal orders that:
The application is dismissed pursuant to section 32(2) of the ACT Civil and Administrative Tribunal Act 2008, as the Tribunal does not have jurisdiction to hear it.
And the Tribunal notes:
Written reasons for the dismissal decision will be provided.
..…..……signed…………..
Presidential Member J Lucy
REASONS FOR DECISION
Introduction
This decision concerns the question of whether the Tribunal has jurisdiction to hear and determine an application for review made by a licensed building surveyor.
The applicant incurred 15 or more demerit points under the Construction Occupations (Licensing) Act 2004 (Act) within three years. The respondent (the Registrar) gave him notice that, as a consequence, the Registrar proposed to disqualify him from holding a building surveyor licence for 12 months and invited him to make submissions about that proposal. The Registrar subsequently served on him a notice of licence disqualification, stating that the Registrar had decided to disqualify him from holding a building surveyor licence for 12 months.
The question for the Tribunal to consider is whether the Registrar’s decision to give the applicant a notice of licence disqualification is a reviewable decision on the basis that it is a decision to “take disciplinary action” within item 19 of Schedule 4 to the Construction Occupations (Licensing) Regulation 2004 (Regulation).
I have found that the words to “take disciplinary action,” in item 19 of Schedule 4 to the Regulation, do not include giving a notice of licence disqualification under section 98 of the Act. Accordingly, the Tribunal does not have jurisdiction to hear and determine the application, and I have dismissed it.
Background
The applicant is a licensed building surveyor. He incurred 15 or more demerit points within a three-year period under the Act.
Section 95 of the Act applies to a licensee if the licensee has a licence and incurred 15 or more demerit points for a construction occupation within the previous 3 years.[1] If section 95 applies, the Registrar is required to:[2]
(a) serve a notice of licence suspension under section 97 on the licensee in relation to the licensee’s licence in the construction occupation; or
(b) serve a notice of licence disqualification under section 98 on the licensee in relation to the licensee’s licence in the construction occupation; or
(c) take any other action against the licensee that—
(i) the ACAT could take or direct the registrar to take; and
(ii) the registrar considers appropriate.
[1] Act, s 95(1)
[2] Act, s 95(2)
Section 98(1) of the Act provides for the requirements of a notice of licence disqualification. Subsection 98(2) provides: “If the licensee has a licence, the licence is cancelled in relation to each construction occupation or occupation class mentioned in the notice on the date of effect.”
Subsection 98(3) of the Act provides: “The licensee is disqualified from holding a licence in each construction occupation or occupation class during the period of licence disqualification and is not entitled to apply for, or be issued with, a licence in the construction occupation or occupation class during the period.”
Section 100 of the Act provides, in effect, that the Registrar is not required to give a licensee an opportunity to make representations to the Registrar before giving a notice of licence suspension or licence disqualification to a licensee under Part 8 (Demerits Points System).
On 21 May 2025, the respondent emailed the applicant, providing him with a notice of intention of disciplinary action resulting from incurring 15 or more demerit points. The notice invited him to respond to the proposed action, that action being to disqualify his building surveyor licence under section 98 of the Act for 12 months.
Mr Bates’ evidence is that he did not receive the respondent’s email of 21 May 2025. However, as I will explain in more detail later in these reasons, he does not contest that the respondent’s email was sent.
On 3 July 2025, the respondent emailed the applicant, providing him with notice of its decision to disqualify him from holding a building surveyor licence for 12 months from 31 July 2025. The notification was said to be made under section 98 of the Act.
Section 123C of the Act provides:
The following may apply to the ACAT for a review of a reviewable decision:
(a) an entity prescribed by regulation for the decision;
(b) any other person whose interests are affected by the decision.
Section 123A of the Act provides that a reviewable decision means a decision prescribed by regulation.
Clause 42A of the Regulation provides:
A decision mentioned in schedule 4, column 3, under a provision mentioned in column 2 in relation to the decision is prescribed.
Schedule 4 to the Regulation relevantly provides:
|
On 4 July 2025, the applicant applied to the Tribunal for a review of the respondent’s decision.
An issue has arisen as to whether the respondent’s decision is a “reviewable decision” which the Tribunal has jurisdiction to review.
Tribunal’s jurisdiction: The issue
The Tribunal only has jurisdiction to hear an application if jurisdiction is conferred upon it by legislation. Section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that “[a] person may apply to the tribunal if an authorising law provides that the application may be made.”
Item 22 of Schedule 4 to the Regulation provides that a decision to “give notice of licence disqualification without opportunity to make representations” is a reviewable decision. It does not provide that a decision to give notice of licence disqualification with an opportunity to make representations is reviewable.
The applicant accepts, in his written submissions of 2 September 2025, that the notice of intended disciplinary action was served upon him, even though he did not see the email. As he accepts, section 247(1)(d) of the Legislation Act 2001 allows notice to be given by emailing the notice to a person’s email address. “Email address” is defined in section 246 of the Legislation Act 2001 to include the latest email address kept in the records of the administrator of the law, which in this case is the Registrar. Subsections 250(3) and (4) deem service by email to be valid if there is no reply message indicating that the email server did not send the email or that the email address is not an address of the recipient. In the absence of such a message, service is complete when the Registrar sends the email to the recipient’s email address.
The applicant accepts that the Registrar was entitled to rely upon the email address provided by Mr Bates. He also accepts that the Registrar did in fact give notice and invite representations.
The issue, then, is whether the Registrar’s decision to give the applicant a notice of licence disqualification, after giving him an opportunity to make representations, is a reviewable decision.
The parties provided the Tribunal with detailed written submissions on this issue and also made oral submissions as to the Tribunal’s jurisdiction at an initial hearing and an adjourned hearing, through their counsel.
At the conclusion of the adjourned hearing, I made an order dismissing the applicant’s application, on the basis that the Tribunal does not have jurisdiction to hear it. I told the parties that I would provide my reasons for that decision later.
These are those reasons.
Respondent’s submissions
The respondent has not taken a position as to whether or not the Tribunal has jurisdiction in this matter. The respondent “does not assert that the Tribunal lacks jurisdiction” but raises some jurisdictional issues for the Tribunal’s consideration.[3]
[3] Respondent’s Submissions Regarding Stay Application filed on 27 August 2025 at [15]
The respondent provided helpful submissions on the legislative history of the relevant provisions and other considerations relevant to whether the Tribunal has jurisdiction. The respondent submitted that “there are two possible interpretations of the relevant provisions of the COL Act and the COL Regulation.”[4] One of those interpretations is that the Registrar’s decision to give a licensee a notice of disqualification, in circumstances where the Registrar has first provided the licensee with an opportunity to make representations, is not a reviewable decision.[5] The other interpretation is that that decision is reviewable, being a decision captured by item 19 of Schedule 4 to the Regulation (being a decision to “take disciplinary action”).[6]
[4] Respondent’s Supplementary Submissions Regarding Stay Application,” filed 12 September 2025 at [19]
[5] Respondent’s Submissions Regarding Stay Application filed on 27 August 2025 at [13]
[6] Respondent’s Submissions Regarding Stay Application filed on 27 August 2025 at [14]
The respondent accepted “the applicant’s assertion that it would be unusual if the effect of the relevant provisions of the COL Act and COL Regulation is that a decision of the Registrar to impose a ‘lesser’ sanction on a licensee (pursuant to s 95(1)(c) of the COL Act) is reviewable by ACAT, but a decision to serve a notice of licence suspension or licence disqualification (pursuant to s 95(1)(a) or (b)) is not.”[7]
Applicant’s submissions
[7] Respondent’s Supplementary Submissions Regarding Stay Application,” filed 12 September 2025 at [21]
The applicant’s case is that the Tribunal has jurisdiction to hear and determine his application under item 19 of Sch 4 to the Regulation, which refers to a decision made under section 95 of the Act to “take disciplinary action.”
The applicant accepts that one reading of items 19 to 22 of Schedule 4 to the Regulation is that a decision to give notice of licence suspension or notice of licence disqualification without an opportunity to make representations is reviewable, but a such a decision made after giving an opportunity to make representations is not reviewable. The applicant acknowledges that the words “without opportunity to make representations” in items 21 and 22 could be taken to imply that a decision described in those items, made after an opportunity to make representations, is not reviewable.
The applicant says, however, that there is no apparent legislative purpose for carving out decisions to suspend or disqualify from the review process, where other decisions of lesser severity may be reviewed by the tribunal.
The applicant refers to item 19 of Schedule 4 to the Regulation which provides that a decision to “take disciplinary action” under section 95 of the Act is a reviewable decision. The applicant notes that “the range of possible action under s.95 includes any action that the ACAT could take” and submits that “this must be a reference to an application under s.56, and in turn to s.66 of the ACAT Act relating to occupational discipline orders.” The applicant points out that “[t]he range of such orders under the ACAT Act includes everything from a reprimand to disqualification, cancellation, or a fine.”[8]
[8] Applicant’s Written Submissions in Reply in Support of Stay Application, filed 2 September 2025 at [11]
The applicant submits:[9]
If item 21 and 22 were read as excluding a right of review in any suspension of disqualification where representations had been invited, it would lead to the result that every disciplinary action from the lightest to the most severe is reviewable, except for those two situations. That is manifestly absurd, and manifestly unreasonable.
[9] Applicant’s Written Submissions in Reply in Support of Stay Application, filed 2 September 2025 at [12]
The applicant relies upon section 138(c) of the Legislation Act 2001. Section 138 provides that, in Part 14.2:
working out the meaning of an Act means —
(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displacing the apparent meaning of the Act; or
(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the Act in any other case.
Section 139(1) of the Legislation Act 2001 (which is in Part 14.2 of the Act) provides: “In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.” The term “Act” in sections 138 and 139 includes a statutory instrument (such as a regulation).[10]
[10] Legislation Act 2001, ss 13, 136.
The applicant submitted that interpreting Schedule 4 to the Regulation as excluding his right of review would be absurd or unreasonable.[11] Accordingly, he said, an interpretation that best achieves the purpose of the legislation is to be preferred.
[11] Applicant’s Further Submissions on Jurisdiction of Tribunal, filed 10 September 2025 at [14]
The applicant submitted that the regulation-making power in section 123A of the Act was not to be construed as authorising the making of unjust, arbitrary, capricious or unreasonable regulations. In his submission, that was a reason to favour his construction of it (and thereby to construe it as a valid regulation).
It is submitted for the applicant that there is nothing in the text, context or extrinsic materials to suggest that there was a deliberate purpose of excluding cancellations or suspensions where representations had been invited. The scheme of allowing minor disciplinary orders to be reviewed demonstrated, in the applicant’s submission, “an overall intention to allow review of all disciplinary decisions, whether or not representations were invited.”[12]
Consideration
[12] Applicant’s Written Submissions in Reply in Support of Stay Application, filed 2 September 2025 at [14]
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, regard is also to be had to its context and purpose.[13]
[13] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [14]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39]
The words “without opportunity to make representations” in items 21 and 22 of Schedule 2 to the Regulation provide a strong indication that the legislature’s intention is that the giving of a notice of licence suspension or disqualification will only be reviewable if the licensee has not been given an opportunity to make representations before that decision was taken.
Two principles of statutory construction are relevant. The first is that “when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power”.[14] The second is that a court, when construing a statutory provision, should strive to give meaning to every word in the provision and should avoid a construction which leaves any provision as superfluous, void or insignificant.[15]
[14] Northern Land Council v Quall [2020] HCA 33, Kiefel CJ, Gageler and Keane JJ at [61], citing Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678
[15] Northern Land Council v Quall [2020] HCA 33, Kiefel CJ, Gageler and Keane JJ at [61], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71].
Each of the items in Schedule 4 to the Regulation confers power on the Tribunal, in that, when read with sections 123A and 123C of the Act and clauses 42A and 42B of the Regulation, each gives the Tribunal power to review a decision specified in the item. The Tribunal’s power to review a decision to “take disciplinary action” is a general power, not subject to limitations and qualifications. The Tribunal’s powers to review a decision to give a notice of licence suspension or disqualification are specific powers, subject to the limitation that the licensee has not been given an opportunity to make representations.
The application of the principle referred to above suggests that the general power to review a decision to “take disciplinary action” cannot be exercised to do that which is the subject of the special power – that is, it is not the source of the Tribunal’s jurisdiction to review a decision to give a notice of licence suspension or disqualification under sections 97 and 98 of the Act.
The second principle, that a construction leaving a provision as superfluous should be avoided, also supports that construction. If the words “take disciplinary action” in item 19 of Schedule 4 to the Regulation were construed to include giving notice of a licence suspension or disqualification under sections 97 or 98, then items 21 and 22 would be superfluous.
There is another textual reason to prefer this construction.
Section 93(1) of the Act (“Deleting demerit points”) refers to demerit points taken into account for “other action (disciplinary action) allowed to be taken under section 95(2)(c).” A definition within a section would normally only apply within the section itself. However, as the definition refers specifically to section 95(2)(c), this suggests that the use of the term “disciplinary action” in relation to section 95 in item 19 of Schedule 4 to the Regulation may refer only to section 95(2)(c) and not to section 95(2)(a) and (b). This inference is strengthened by the circumstance that only section 95(2)(c) uses the term “action”; section 95(2)(a) and (b) refer to serving a notice.
The action which may be taken under section 95(2)(c) is “any other action.” The word “other” means that the action is not action the subject of section 95(2)(a) or (b).
As the applicant pointed out,[16] the term “disciplinary action” is also used in item 15 of Schedule 4 to the Regulation, referring to action which the Registrar may take under section 56(1)(b), (c) and (d). In that context the term does not refer to action taken under section 95(2)(c). It does not necessarily follow, however, that “disciplinary action” in item 19 does not mean action under section 95(2)(c), consistently with the definition in section 93 which expressly refers to that provision. Column 2 in the Schedule makes express that it refers to disciplinary action taken under section 95.
[16] Applicant’s Further Submissions on Jurisdiction of Tribunal, filed 10 September 2025 at [19]
The term “disciplinary action” as it appears in each item in Schedule 4 to the Regulation is to be construed in the context of the other columns applying to each item. A “reviewable decision” is a “decision mentioned in schedule 4, column 3, under a provision mentioned in column 2 in relation to the decision.”[17] That is, for item 15, the reviewable decision is “disciplinary action” under section 56(1) and, for item 19, the reviewable decision is “disciplinary action” under section 95. The term “disciplinary action” in each case takes its meaning from the associated provision.
[17] Act, s 123A; Regulation, cl 42A.
When working out the meaning of the items in Schedule 4 to the Regulation, it is important to consider the purpose of those items, and the provisions of the Act to which they refer, as required by section 138 of the Legislation Act 2001. The task of ascertaining that purpose is facilitated by a review of the legislative history of the relevant provisions.
Legislative history
Schedule 4 to the Regulation is to be construed in the context of the legislative history of that Regulation and the provisions in the Act to which the Schedule refers. Understanding that broader context “has utility if, and in so far as, it assists in fixing the meaning of the statutory text.”[18] It is to be borne in mind that “[l]egislative history and extrinsic materials cannot displace the meaning of the statutory text.”[19]
[18] Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39, Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ at [87], citing Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39]; Thiess v Collector of Customs [2014] HCA 12 at [22].
[19] Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, French CJ, Hayne , Crennan, Bell and Gageler JJ at [39]
In working out the meaning of an Act, material not forming part of the Act may be considered.[20] That includes, but is not limited to, presentation speeches and explanatory statements.[21] At common law, the context in which legislation must be understood includes legislative history and extrinsic materials.[22]
[20] Legislation Act 2001, s 141(1)
[21] Legislation Act 2001, s 142
[22] Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, French CJ, Hayne , Crennan, Bell and Gageler JJ at [39]
The Construction Occupations (Licensing) Bill 2003 was introduced into Parliament as part of a legislative package which included a draft Regulation.
On 24 June 2003, the Minister for Health and Minister for Planning, Mr Corbell, made a statement in Parliament, tabling the exposure drafts of the Construction Occupations (Licensing) Bill and Regulations 2003.[23] The Minister stated:
… This package of legislative reforms represents a significant proposal to improve the regulation of the building industry trades. The process of reform has been under way since 1998 when Planning and Land Management released a discussion paper on the options for moving to a single licensing regime to cover architects, builders, electricians, plumbers, drainers and gas fitters.
Following that discussion paper, a national competition policy review of occupational licensing was undertaken in 2000. …
Mr Speaker, the previous government endorsed most of the recommendations of that review but did not proceed to implement the recommendations prior to the change of government in October 2001. This government has taken the opportunity to consider the relevance of the recommendations, given the time passed since the initial review was undertaken. We endorsed the implementation of reforms to the current licensing regime, as it is clear that there are substantial improvements that can be made which will benefit both licensees and consumers.
…
Perhaps the most significant reform contained within this legislative package is the creation of more flexible and effective forms of disciplinary action against delinquent licence holders. This includes a new demerit points system for licensees, and the capacity to issue infringement notices under the Magistrates Court Act 1930 against unlicensed persons who do work requiring a licence.
The demerit points system will ensure that licensed persons are held accountable for the work that they undertake by providing an effective sanction against persistent breaches, particularly where that work is not in accordance with approved standards. The infringement notice system will enable “on-the-spot” fines to be administered, where unlicensed persons are found to be doing work requiring a licence or where a licensed person is undertaking work not allowed under their licence.
[23] Hansard: Debates of the Legislative Assembly for the Australian Capital Territory, 24 June 2003, page 2294.
It is notable that the Minister considered the most significant reform brought about by the legislation as being “the creation of more flexible and effective forms of disciplinary action against delinquent licence holders.” That included the introduction of the demerit points system. The Minister considered that the demerit points system would “ensure that licensed persons are held accountable for the work that they undertake by providing an effective sanction against persistent breaches, particularly where that work is not in accordance with approved standards.”
Those comments tend to suggest that the mischief being addressed by the Act and Regulation was the lack of an effective sanction for licensed persons, and that disciplinary action against “delinquent” licence holders was perceived by the legislature to be insufficiently flexible and effective. The purpose of the demerit points systems appears to have been to create a simple and cost-effective way of disciplining licence holders who acquired a large number of demerit points for “persistent breaches.”
The Minister referred, in his speech, to the “national competition policy review of occupational licensing was undertaken in 2000.” That is a reference to the Final Report in August 2000, prepared by the Allen Consulting Group, entitled “Occupational Licensing in the ACT Building and Construction Industry: A National Competition Policy Review of the Building Act 1982, the Electricity Act 1971, and the Plumbers, Drainers and Gasfitters Board Act 1982” (National Competition Policy Review Report). The Preface to that report states that it was “prepared on behalf of the Government of the Australian Capital Territory but does not necessarily represent the views of the Government.”
The authors of the National Competition Policy Review Report, who described themselves as the “Review Team,” indicated that there were “a number of problems with the current arrangements” for disciplining licensees. It commented:[24]
the costs of prosecuting unlicensed individuals providing building and construction work are prohibitive for the Department and rarely undertaken. Therefore threat of prosecution is not a deterrent for unlicensed tradespeople.
[24] National Competition Policy Review Report, page 53, cl 8.1.6
The Review Team stated that it was “concerned that some of the review legislation makes it hard to take effective action under the standard show cause procedure.” The Review Team noted that “[i]ndustry … indicated preference for a demerit points system of discipline whereby the penalties are based on the severity of the contravention.” The Team stated:[25]
There was some debate about the level of penalties that should be applied:
• one view is that the current penalties are insufficient to provide a sufficient deterrent; and
• the alternative view is that the costs of the prosecution process are so large that they deter prosecution for small offences.
[25] National Competition Policy Review Report, page 54, cl 8.1.6
Having referred to submissions it had received, the Team stated:[26]
The Review Team suggests that an appropriately structured demerit points system should provide a system of penalties such that minor contraventions can be punished, and multiple or large offences have sufficient penalties attached such that they are a real deterrent. It recommends a system of progressively increasing penalties as the number of major defects incurred increases. It also recommends that, given the potential damage that a major defect can cause, these penalties be of sufficient amounts to act as a deterrent.
[26] National Competition Policy Review Report, page 55, cl 8.1.6
It then made the following recommendation:[27]
A system of demerit points should be adopted, with increasing penalties based on number of major/minor defect or re-inspections. The level of penalty should be set at such a level that the penalty acts as a deterrent. In order to further strengthen the disciplinary action available, automatic show cause actions could occur after a pre-determined number of major defects or re-inspections are incurred by the same individual within a set period of time.
[27] National Competition Policy Review Report, page 55, cl 8.1.6
The Government Response to the National Competition Policy Review Report indicated that this recommendation was “agreed,” but also indicated that there was a need for further consultation on the detail.[28]
[28] Government Response to the Final Report on the National Competition Policy Review of Occupational Regulation in the ACT Building and Construction Industry Conducted by the Allen Consulting Group - October 2000
The explanatory statement to the Construction Occupations (Licensing) Bill 2003 stated, relevantly:
This Bill introduces significant reforms to the regulation of building and construction industry trades. The Bill implements the recommendations of the National Competition Policy Review of Occupational Licensing
in the ACT, which reflected reform proposals that had been considered over a number of years.
…
… Some new provisions have been included to improve the effectiveness of the regulatory scheme, including a demerits points system for licensees.
…
Part 5 Automatic licence suspension and disciplinary action
Part 5 outlines the circumstances in which a licence can be automatically suspended, and the disciplinary process where the registrar determines that the grounds for taking action exist.
…
Disciplinary action by registrar
Clause 53 lists the disciplinary grounds in relation to a licensee. A disciplinary ground must exist for the registrar to commence disciplinary action.
Part 8 Demerit Points System
Part 8 establishes a demerit points system for licensees and former licensees, and outlines the operations of the system.
…
If a licensee has incurred 15 or more demerit points within a construction occupation within the previous three years, Clause 93 allows the registrar to serve a notice of licence suspension, or disqualification on the licensee. Alternatively the registrar may take other disciplinary action against the licensee if particular circumstances do not support suspension or disqualification. Before making a decision on the appropriate action to take, the registrar must take into account the need to protect public safety, the financial capacity of the licensee, the nature and regularity of the breaches, and the likelihood of further disciplinary incidents relating to the licensee. The registrar may also take into account any other relevant information.
The indication in the Explanatory Statement that the Bill was “implement[ing] the recommendations of the National Competition Policy Review of Occupational Licensing in the ACT” provides some insight into the mischief being addressed by the Bill. It may be inferred that the legislature was addressing the mischief, identified in the report, that “the costs of prosecuting unlicensed individuals providing building and construction work are prohibitive for the Department and rarely undertaken” and therefore the existing penalties were ineffective. It may also be inferred that a purpose of the demerits system was to provide “a real deterrent.” As stated expressly in the Explanatory Statement, a purpose of the demerits points system was “to improve the effectiveness of the regulatory scheme.”
As Mr Hassall proposed, for the Registrar, at the adjourned hearing, it may be inferred that the demerits system was intended to be “self-executing” to some extent. The legislature did not initially make provision for “automatic show cause actions,” as recommended in the Report, if the term “show cause” indicated that the authors of the Report intended a licensee to be given an opportunity to show cause why disciplinary action should not be taken. However, by requiring the Registrar to take action when 15 or more demerit points were incurred within a three year period, it did provide for “automatic” disciplinary sanctions to apply after “a pre-determined number of” demerit points had been incurred “within a set period of time,” as recommended in the Report, albeit that the Registrar was given a discretion as to the form of disciplinary action to take.
The Act also contained provision for a more conventional form of disciplinary action, to be taken in response to the existence of a disciplinary ground, and only after providing a licensee with procedural fairness.
The Act, as enacted, contained “Division 5.2: Disciplinary Action by Registrar” (sections 54 to 65). The Act specified in section 54(1) a number of “disciplinary grounds.” It provided, in section 55, that the Registrar may give a licensee a disciplinary notice if satisfied that a disciplinary ground existed. A notice had to give a licensee an opportunity to provide a written response.[29] Section 60 of the Act provided that, if the Registrar had given a licensee a disciplinary notice and taken into account any response, the Registrar was empowered to take disciplinary action if satisfied on reasonable grounds that a disciplinary ground was established.[30]
[29] Act as enacted, section 56(1)(d)
[30] Act as enacted, s 60(1)-(3)
Section 61(1) of the Act set out various forms of disciplinary action the registrar could take, from issuing a reprimand, to imposing conditions on a licence, to cancelling a licence and disqualifying a licensee from applying for a licence for a stated period. The Act contained a definition of “disciplinary action,” being “action the registrar may take under section 61(1).”
The Act, in its original form, contained a Part 8, “Demerit Points System” (sections 89 to 102). The Registrar was empowered to record, in the demerit points register, demerit points where “a demerit disciplinary ground exists in relation to a licensee.”[31] The term “demerit disciplinary ground” was defined for Part 8 to include a disciplinary ground in relation to the licensee for which the registrar may take disciplinary action under section 60, but to exclude certain grounds for which an infringement notice could be issued.[32] The term “infringement notice” was defined by reference to section 117 of the Magistrates Court Act 1930.[33] Under that Act, an infringement notice could be given in relation to an infringement notice offence.[34] The Magistrates Court (Construction Occupations Infringement Notices) Regulation 2004, as notified, provided that offences against sections 81 and 84 of the Act were infringement notice offences. These involved pretending to be licensed and providing a service without the required licence.
[31] Act as enacted, section 91(1)
[32] Act as enacted, section 89
[33] Act as enacted, section 89
[34] Magistrates Court Act 1930 (as at 2004), ss 117, 120
The Registrar was required to record, in the demerits points register, the prescribed number of demerit points, if a demerit disciplinary ground existed in relation to a licensee.[35] The Registrar was required to give licensees warning notices when they reached 10 demerit points. If the Registrar recorded a demerit point against a licensee for a construction occupation and in the previous 3 years, and the licensee had incurred at least 10 other demerit points for the construction occupation, and the Registrar had not sent the licensee a warning notice within 3 months before the demerit point was incurred, registrar was required to notify the licensee of how many points the licensee had and the effect of Part 8 of the Act.[36]
[35] Act as enacted, section 91(1)
[36] Act as enacted, section 92(1) and (2)
Section 95 of the Act applied if a licensee had incurred 15 or more demerit points for a construction occupation within the previous 3 years.[37] Section 95(2) provided:
(2) The registrar must consider the disciplinary incidents for which the licensee incurred the demerit points and—
(a) serve a notice of licence suspension under section 97 on the licensee in relation to the licensee’s licence in the construction occupation; or
(b) serve a notice of licence disqualification under section 98 on the licensee in relation to the licensee’s licence in the construction occupation; or
(c) take any other disciplinary action against the licensee that the registrar considers appropriate.
[37] Act as enacted, section 95(1)
Section 93 provided that demerit points were deleted from the register once a form of disciplinary action was decided upon. When originally enacted, section 93(1) of the Act provided:
93 Deleting demerit points
(1) This section applies to demerit points incurred by a licensee for a construction occupation, recorded in the register and taken into account for—
(a) a notice of licence suspension under section 97 or
(b) a notice of licence disqualification under section 98; or
(c)other disciplinary action allowed to be taken under section 95(2)(c).
Section 93(2) provided:
(2) The demerit points are deleted from the register at the beginning of the period of suspension or disqualification, or on the imposition of the disciplinary action, relating to the licence for the construction occupation.
Sections 97 and 98 of the Act provided for the Registrar to serve on a licensee a notice of licence suspension or notice of licence disqualification respectively. The notice was to state the date, at least 21 days after the day the notice was served on the licensee, when the suspension of the licensee’s licence, or the disqualification of the licensee to obtain a licence and the cancellation of the licence, was to begin.[38]
[38] Act as enacted, section 97(1)(c), 98(1)(c) and (d)
Section 100 of the Act provided that the Registrar could take serious forms of disciplinary action without giving the licensee an opportunity to be heard. It provided:
The registrar may give a notice of licence suspension or licence disqualification to a licensee under this part without giving the licensee an opportunity to make representations why the notice should not be given.
There is no explanation, in any of the extrinsic material, as to why this provision was included. However, it may be inferred that the provision for the Registrar to suspend a licence or disqualify a person from holding one, without hearing from the person first, was designed to make the system work quickly and efficiently.
It is to be noted that section 100 addressed (and still addresses) the forms of disciplinary action contemplated by section 95(2)(a) and (b), but not the disciplinary action contemplated by section 95(2)(c). This is probably because, as a matter of statutory construction, the power in section 95(2)(c) was not conditioned upon the Registrar giving a licensee an opportunity to make representations about any other forms of disciplinary action the Registrar may take. In circumstances where the “Demerits points system” required the Registrar sanction a licensee upon the licensee incurring 15 demerit points, the normal rules of procedural fairness were displaced.
That conclusion is borne out by the text of the Act, as enacted.
Section 95(2)(c) gave the Registrar power to take other disciplinary action, defined to mean “action the Registrar may take under section 61(1).”[39] Section 61(1) commenced with the words “If the registrar may take disciplinary action in relation to a licensee or former licensee, …” then provided for the types of disciplinary action the Registrar could take. The condition in section 61(1) (being that “the registrar may take disciplinary action”), being the precondition to taking disciplinary action, was satisfied if section 95(2)(c) was engaged, because of the terms of that provision, authorising such action. If, on the other hand, the Registrar decided to take disciplinary action under Division 5.2, then the Registrar was required to provide a licensee with procedural fairness by giving the licensee a disciplinary notice (section 55) and an opportunity to make representations (section 56(1)(d)). In other words, if the disciplinary process was commenced under Division 5.2, the condition in section 61(1) would not be satisfied unless the disciplinary notice had been given to a licensee and any response considered (see section 60(3)(a)).
[39] Act, Dictionary
Section 95(2)(c) effectively provided a shortcut to section 61 of the Act, where a licensee had incurred fifteen demerit points within three years. Section 94 (Warning notices) provided some degree of procedural fairness, being the provision of a warning when the licensee reached ten demerit points. Otherwise, for reasons given above, the scheme clearly manifested an intention to displace the requirements of procedural fairness, insofar as the Registrar was not required to give licensees an opportunity to be heard as to disciplinary action taken under section 95(2)(c).
The Act, as enacted, also provided for some rights of review.
Section 124(1) of the Act provided: “Application may be made to the AAT for review of an [sic] reviewable decision” (referring to the former ACT Administrative Appeals Tribunal). Subsection 124(2) of the Act provided that “[t]he regulations may prescribe which decisions are reviewable decisions.” Clause 45 of the Regulation contained in schedule 1 to the Act, as enacted, provided for certain decisions of the registrar to be reviewable decisions. These did not include decisions under sections 95 to 98 of the Act. The taking of disciplinary action under section 60 was, however, a reviewable decision.[40]
[40] Regulation, as enacted, clause 45(n); contained in Schedule 1 to the Act, as enacted
The legislative choice not to provide for rights of review in relation to disciplinary decisions made as part of the operation of the demerits points system is consistent with a legislative intention for that system to operate in a quick, cheap and efficient manner, providing a deterrent for “delinquent licence holders,” without the costs associated with the previous disciplinary schemes. This may be seen to serve similar purposes to the introduction of infringement notices for unlicensed persons. Both reforms replaced a more costly prosecution system with a system with fewer procedural protections, which was intended to be more effective.
The Act was amended when ACAT was created, including by transferring some of the functions of the Registrar and the AAT to ACAT.
The Explanatory Statement to the ACT Civil and Administrative Tribunal Legislation Amendment Bill 2008 relevantly provided:
Construction Occupations (Licensing) Act 2004
This part provides that, in future, the registrar may apply to the ACAT for an occupational discipline order for an [sic] licensee under this Act (previously the registrar held a hearing and imposed disciplinary sanctions). In hearing a matter, the ACAT consider a number of matters. These are similar to those previously required to be considered by the Board but now also include the more general considerations set out in section 65(3) of the ACAT Bill.
This part also makes a number of related consequential amendments – for example, it replaces references in the Act to “disciplinary ground” to “ground for occupational discipline”.
This part also provides that an application may be made for a review of specified administrative decisions in the Act (previously brought before the Administrative Appeals Tribunal) to the ACAT. A review is not provided for taking disciplinary action (as that decision is now taken by the ACAT itself). A new ground of review is included in respect of the demerits scheme (Part 8).
Construction Occupations (Licensing) Regulation 2004
This part provides that an application may be made for a review of specified administrative decisions in the Act (previously brought before the Administrative Appeals Tribunal) to the ACAT. A new ground of review is included in respect of the removal of material from the register (s111 of the Construction Occupations (Licensing) Act 2004).
The ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACAT Legislation Amendment Act) made a number of significant amendments to the Act and Regulation. It repealed Division 5.2 and inserted a new Division. The new Division gave the Tribunal (ACAT) responsibility for disciplinary action instead of the Registrar. It provided for grounds for occupational discipline (section 55) and gave the Registrar power to apply to ACAT for an occupational discipline order if the Registrar believed on reasonable grounds that a ground for occupational discipline existed in relation to a licensee (section 56(1)).
The ACAT Legislation Amendment Act omitted the definition of “disciplinary action” in the Dictionary to the Act and other places in which it appeared. However, the term “disciplinary action” was used in some of the new amendments.
The ACAT Legislation Amendment Act substituted a new section 93(1)(c) (relating to the deletion of demerit points) as follows: “(c) other action (disciplinary action) allowed to be taken under section 95 (2) (c).”
It also substituted a new section 95(2)(c), which gave the registrar power, where a licensee had incurred 15 demerit points, to:
(c) take any other action against the licensee that—
(i) the ACAT could take or direct the registrar to take; and
(ii) the registrar considers appropriate.
There is no indication that the legislature intended to change the existing situation by the replacement of section 95(2)(c), being that the Registrar was not required to give a licensee notice of the proposed disciplinary action before taking it. Action that “the ACAT could take” (within section 95(2)(c)(i)) includes action under section 66 of the ACAT Act and under section 58(2)(a) of the Act. Action that ACAT could direct the Registrar to take (within section 95(2)(c)(ii)) includes action under section 58(2)(b) of the Act. Each of those provisions applies where ACAT “may make an order for occupational discipline” or “may make an occupational discipline order” (ACAT Act, section 66(1); Act, section 58(1)). The legislation evinces a clear intention that the Registrar is not obliged to hear from the licensee before acting under section 92(2); the registrar is empowered to take that action once 15 demerit points have been incurred, and “must” take some form of action.
The ACAT Legislation Amendment Act also:
(a) introduced a new Part 11A of the Act. This provided (ss 123A-123C) for certain persons to be permitted to apply to ACAT for review of a reviewable decision.
(b) Inserted into the Regulation a new Part A, which provided for reviewable decisions to be identified in Schedule 4 (ss 42A, 42B)
(c) Inserted a new Schedule 4 into the Regulation which relevantly included the following items:
column 1
itemcolumn 2
sectioncolumn 3 decision column 4
entity
… 16 Act, 95 take disciplinary action licensee 17 Act, 96 refuse application for licence or renewal applicant for licence or renewal 18 Act, 97 give notice of licence suspension or disqualification without opportunity to make representations person whose licence suspended or disqualified
This schedule includes the “new ground [or grounds] of review … in respect of the demerits scheme” referred to in the Explanatory Statement to the ACT Civil and Administrative Tribunal Legislation Amendment Bill 2008. It identifies reviewable decisions which may be made within that scheme.
The introduction of Schedule 4 to the Regulation at the same time that the definition of “disciplinary action” was inserted into section 93(1)(c) of the Act strengthens the inference that the legislature intended, by “take disciplinary action” in item 16 of Schedule 4, to refer only to action taken under section 95(2)(c). That inference is further strengthened by the circumstance that item 18, which is referable to section 95(2)(a) and (b), was inserted at the same time. That indicates an intention to limit the circumstances in which a person the subject of a notice of licence suspension or disqualification may apply for review of that decision.
There is no explanation in the extrinsic materials of why the legislature chose to provide for a right of review of a decision to take disciplinary action under section 95(2)(c) of the Act, but not to provide a right to review a decision to issue a notice of suspension or disqualification after providing an opportunity to make submissions. As the applicant points out, the disciplinary action which may be taken under section 95(2)(c) includes less serious forms of disciplinary action, such as a reprimand.
It may be, however, that the legislative intention was to provide for a review by ACAT in circumstances where a disciplinary sanction had been imposed by the Registrar without first hearing from the applicant. The legislature may have considered that the scheme did not provide for the Registrar to hear from a licensee if taking action under section 95(2)(c) of the Act.
In 2009, there were some further amendments to the Act and the Regulation. Under a new section 56(1)(b), the Registrar was given the power to reprimand the licensee, require the licensee to complete a course of training, or impose or amend a condition on the licence, as an alternative to apply to ACAT for an occupational discipline order.[41] The Regulation was amended to add a new reviewable decision, being the Registrar’s decision to “take disciplinary action” under section 56(1)(b) of the Act.[42]
[41] Statute Law Amendment Act 2009 (No 2), Sch 1, Pt 1.4, item 1.11
[42] Statute Law Amendment Act 2009 (No 2), Sch 1, Pt 1.5, item 1.13, introducing new item 13A in Sch 4 to Regulation
There is no indication, and no reason to consider, that this amendment was intended to alter the meaning of “disciplinary action” in item 16 of Schedule 4 to the Regulation.
In 2011, a further amendment was made to Schedule 4 to the Regulation, to correct an inadvertent error in item 19. The Statute Law Amendment Act 2011 (No 3) amended Schedule 4 to the Regulation, providing, with an explanatory note:[43]
[43] Statute Law Amendment Act 2011 (No 3), Sch 3, Pt 3.11, item 3.49
substitute
19 Act, 97 give notice of licence suspension without opportunity to make representations person whose licence suspended 19A Act, 98 give notice of licence disqualification without opportunity to make representations person whose licence disqualified Explanatory note
Item 19 currently refers to a decision under the Act, section 97 to give notice of licence suspension or disqualification without opportunity to make representations. However, a decision to give notice of licence disqualification is made under the Act, section 98. This amendment replaces item 19 with 2 new items that refer to the correct decisions under the 2 provisions.
This amendment demonstrates that the legislature considered the reviewable decisions of giving notice of licence suspension and disqualification under sections 97 and 98 of the Act again, and again decided that those decisions should only be reviewable if the affected person had not been given an opportunity to make representations.
Those items in Schedule 4 were later renumbered.
Purposive interpretation
The applicant submits that interpreting Schedule 4 as excluding his right of review would be absurd or unreasonable within section 138(c) of the Legislation Act 2001, and that the Tribunal is required to prefer the construction that best achieves the purpose of the legislation under section 139 of that Act.
The applicant relies upon In The Matter of a Bail Application by Isa Islam [2010] ACTSC 147 as a guide to the Tribunal in understanding how section 139 of the Legislation Act 2001 operates. In that case, Penfold J pointed out that section 139 takes a different approach from orthodox purposive interpretation provisions, such as section 15AA of the Acts Interpretation Act 1901 (Cth), which require a construction of a provision that promotes the purpose underlying the Act to be preferred to one that does not. As her Honour observed, section 139 “requires adoption of the meaning that best achieves the legislative purpose” (original emphasis). That is, it “specifies exactly which meaning, determined by reference to legislative purpose, is to be adopted.”[44]
[44] In The Matter of a Bail Application by Isa Islam [2010] ACTSC 147 at [43]
The applicant did not identify the purpose of items 19 to 22 of Schedule 4 to the Regulation in his written submissions. However, at the adjourned hearing, the applicant’s counsel, Mr Erskine SC, identified the purpose of the legislature as being that all disciplinary decisions should be reviewable.
Mr Erskine SC said, at the adjourned hearing, that it can be gleaned from ACT statutes generally that there is a general legislative purpose to make disciplinary action either the purview of ACAT (as an original decision-maker), or if disciplinary action may be taken by an agency or statutory authority, that action is generally reviewable by ACAT. Mr Erskine SC said this could be seen specifically in section 56 of the Act.
It is hard to reconcile the purpose, as identified by the applicant, with the text of the provisions of Schedule 4 to the Regulation. The express carve-outs (“without opportunity to make representations”) from items 21 and 22 are in tension with such a purpose.
It is not a conventional process of statutory interpretation to consider what the legislature has done in other Acts, and then to infer that its purpose must have been to do the same thing in a particular piece of legislation. Even if this were a legitimate approach, there are features of the Act which are atypical of disciplinary statutes. In particular, there is no other disciplinary regime in the Territory of which I am aware, or which the parties identified, which employs a demerits points system.
Mr Erskine SC suggested that the purpose of items 21 and 22 of Schedule 4 may be to remove any doubt that, if a licensee has not been given an opportunity to make representations about a proposed suspension or disqualification, the licensee has a right of review. He submitted that the purpose of section 100 of the Act (which allows the registrar to make such decisions without giving a person an opportunity to make representations) was an exercise of abundant caution, for the avoidance of doubt. It was, he said, to make plain that the failure to give a person an opportunity to make representations would not invalidate the decision.
The effect of section 100 is to displace the common law presumption that a statutory power is conditioned upon a duty to give procedural fairness.[45] It was, in my view, included in the Act to make plain that none of the decisions referred to in section 95(2) were conditioned upon such a duty (that intention being manifest in the case of section 95(2)(c) for reasons given above).
[45] Disorganized Developments Pty Ltd v South Australia [2023] HCA 22 at [32]-[33]
As Schedule 4 lists reviewable decisions, it is unlikely that a decision, taken only in certain circumstances, would be included in the list to avoid doubt that it is covered by a general category, such as “disciplinary action.” That strategy would be more likely to create doubt. For these reasons, I do not find this submission of the applicant to be persuasive.
The applicant submitted that interpreting Schedule 4 as excluding the applicant’s right of review would be absurd or unreasonable, within the definition of “working out the meaning of the Act” in section 138 of the Legislation Act 2001. I do not accept that the construction which the applicant rejects, and which I prefer, is absurd or unreasonable. However, even if it were, it would follow that section 139(1) of the Legislation Act 2001 applied, requiring the Tribunal to prefer the interpretation that would best achieve the purpose of the Act (or Regulation), when working out its meaning.
The purpose of the legislature when enacting items 19 to 22 of Schedule 4 to the Regulation (as presently numbered) is not plain. It may, however, be concluded that a purpose of the demerits points system was to provide for a quick, cheap and effective disciplinary system which provided an effective sanction against persistent breaches. A right of review of disciplinary decisions made on the basis of this system was not initially included in the legislation, probably to advance the purpose of maintaining a system which was quick and cheap, and which provided deterrence for persistent breaches. The legislature was focused upon deterrence, speed and economy, not upon licensees’ rights or procedural fairness.
When a right of review of a notice of licence suspension or disqualification was inserted into the legislative scheme, it was only a limited right, being for decisions made without opportunity to make representations. The legislature clearly expressed an intention to exclude notices of licence suspension or disqualification given after an opportunity to make representations. As indicated above, the right of review of disciplinary sanctions of lesser severity is provided on the basis that the Registrar is not required to provide licensees with an opportunity to be heard before imposing such sanctions. The legislature apparently contemplated that the Registrar would not do so.
A factor in favour of this construction of the legislative scheme is that it means that the provisions in items 19 to 22 of Schedule 4 to the Regulation “give effect to harmonious goals.”[46] All of the reviewable decisions in relation to the demerits points system in the present items 20 to 22 of Schedule 4 relate to disciplinary decisions made without giving the affected person an opportunity to make representations. The Registrar is not expressly required to give an applicant an opportunity to make representations before refusing an application for renewal of a licence under section 96 of the Act (a reviewable decision under item 20), in circumstances where the licensee has incurred 15 or more demerit points for the construction occupation within the previous 3 years. The better construction of that provision is that the Registrar may refuse such an application without first hearing from an applicant.
[46] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [70]
My preferred construction of items 19 to 22 of the Regulation reflects an inferred legislative purpose of providing for the review of disciplinary decisions, but only where the person affected had not first been provided with procedural fairness. It avoids the potential absurdity (as claimed by the applicant) of making minor disciplinary decisions reviewable, and not making certain types of more serious disciplinary decisions reviewable, with no good reason. The common thread is that the right of review attaches to decisions where procedural fairness has not previously been provided.
The applicant advanced an argument that:
(a)If the decision to give a licensee a notice disqualification, when taken after giving the licensee an opportunity to make representations, was not a reviewable decision, that would be illogical, absurd and unjust, because less serious disciplinary action would be reviewable, whereas action denying a person their livelihood would not be;
(b)Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality, because this could not have been intended by the legislature;
(c)A provision of subordinate legislation should be construed so as not to exceed, the power given by the Act under which it is made, pursuant to section 43(1) of the Legislation Act 2001;
(d)Schedule 4 should therefore be construed so that its provisions do not operate in a way which is absurd or unreasonable.
One significant problem with this argument is that Schedule 4 to the Regulation was inserted by the ACAT Legislation Amendment Act. It was not made by the Executive under section 129 of the Act.
Another reason for rejecting the argument is, for reasons given above, I do not consider that the construction I have adopted leads to an absurd or unreasonable result. On the contrary, the provisions give effect to harmonious goals. They balance the need to provide procedural fairness, with the purpose of achieving a quick and effective disciplinary system.
Interpretation compatible with human rights
The applicant relied upon section 30 of the Human Rights Act 2004, which provides: “So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.” The applicant submitted that a construction of the Regulation which denied a licensee a right of review of a decision to suspend a licence, or a decision to disqualify a person from holding a licence, would be inconsistent with section 21 of the Human Rights Act 2004. That section provides:
Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
That provision does not have application in this case. Section 21 applies to civil proceedings,[47] but it does not have the effect that a legislative provision which provides for only limited merits review of an administrative decision is not compatible with the “Fair Trial” human right.[48] The Tribunal, in a merits review, is not deciding “rights and obligations” within section 21 of the Human Rights Act 2004, but rather is making an administrative decision. Licensees have a right to seek judicial review of all administrative decisions, consistently with section 21.
Conclusion
[47] Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 at [101]; Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning and Land Authority [2008] ACTCA 9 at [38]
[48] See Eastman v Australian Capital Territory [2014] ACTSC 105 at [88]
I have concluded, for the reasons given above, that the reviewable decision in item 19 of Schedule 4 to the Regulation, being to “take disciplinary action” under section 95 of the Act, refers only to a decision taken under section 95(2)(c) of the Act to take disciplinary action. It does not encompass a decision to serve a notice of licence suspension or disqualification under section 97 or 98 of the Act.
Accordingly, the Tribunal does not have jurisdiction to hear and determine the applicant’s application. I have dismissed the application under section 32(2) of the ACAT Act, on the basis that it is frivolous, vexatious or lacking in substance.
ORDER
The Tribunal orders that:
The application is dismissed pursuant to section 32(2) of the ACT Civil and Administrative Tribunal Act 2008, as the Tribunal does not have jurisdiction to hear it.
And the Tribunal notes:
Written reasons for the dismissal decision will be provided.
………………………………..
Presidential Member J Lucy
| Date(s) of hearing: | 4 and 18 September 2025 |
| Counsel for the Applicant: | Mr C Eskine SC |
| Solicitors for the Applicant: | BAL Lawyers |
| Counsel for the Respondent: | Mr M Hassall |
| Solicitors for the Respondent: | ACT Government Solicitor |
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