Bates v Construction Occupations Registrar (Occupational Discipline)

Bates, a licensed building surveyor, incurred 15 or more demerit points within three years, triggering potential disciplinary action under the Construction Occupations (Licensing) Act 2004. The Construction Occupations Registrar (the Registrar) gave Bates notice of the intended disciplinary action, inviting him to make representations. After considering Bates’ submissions, the Registrar issued a notice of licence disqualification for 12 months. Bates sought a review of the Registrar’s decision by the ACT Civil and Administrative Tribunal (the Tribunal). The Registrar did not contest the Tribunal’s jurisdiction but raised jurisdictional issues. The central issue was whether the Registrar’s decision to give Bates a notice of licence disqualification, after giving him an opportunity to make representations, constituted a "reviewable decision" under the Construction Occupations (Licensing) Regulation 2004, thereby granting the Tribunal jurisdiction.

The Tribunal found that the words "take disciplinary action" in item 19 of Schedule 4 to the Regulation did not encompass the giving of a notice of licence disqualification under section 98 of the Act. The Tribunal concluded that the decision to give a notice of licence disqualification, after providing an opportunity to make representations, was not a reviewable decision. The Tribunal dismissed Bates’ application for review on the basis that it did not have jurisdiction to hear it.

The Tribunal's decision hinged on the interpretation of "disciplinary action" in item 19 of Schedule 4 to the Regulation. The Tribunal found that the term "disciplinary action" in item 19 referred only to action taken under section 95(2)(c) of the Act, not to actions under sections 95(2)(a) or (b). The Tribunal concluded that the right of review applied only to disciplinary actions taken without providing an opportunity to make representations, thereby excluding the decision at issue.

The Tribunal rejected Bates’ argument that the construction of the Regulation leading to the exclusion of his right of review was absurd or unreasonable. The Tribunal noted that the legislative intent appeared to focus on creating a quick, cheap, and effective disciplinary system, rather than on procedural fairness for licensees. The Tribunal found that its construction of the Regulation balanced the need for procedural fairness with the purpose of achieving an effective disciplinary system.

The Tribunal dismissed the application as frivolous, vexatious, or lacking in substance. The Tribunal ordered that the application be dismissed and noted that written reasons for the dismissal decision would be provided.