Boutros v Director General Department of Finance and Services, New South Wales Fair Trading
[2011] NSWADT 181
•28 July 2011
Administrative Decisions Tribunal
New South Wales
Case Title: Boutros v Director General Department of Finance and Services, New South Wales Fair Trading Medium Neutral Citation: [2011] NSWADT 181 Hearing Date(s): 17 June 2011 Decision Date: 28 July 2011 Jurisdiction: General Division Before: C Huntsman, Judicial member
Decision: The decision is affirmed.
Catchwords: Reviewable decision; whether mandatory statutory provisions; application for a licence where applicant previously permanently disqualified from holding a licence; Tribunal's jurisdiction
Legislation Cited: Sections 12(2), 20D, 20E, 20F Motor Dealers Act 1974; section 63 Administrative Decisions Tribunal Act
Cases Cited: Chase Oyster Bar Propriety Limited And Others V Hammo Industries Propriety Limited And Another [2010] NSWCA190; Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355;
Texts Cited: Category: Principal judgment Parties: Elias Anthony Boutros and Leila Boutros, (Applicants)
Director General Department of Finance and Services, New South Wales Fair Trading (Respondent)Representation - Counsel: Counsel
S.J Stanton (Applicant)- Solicitors: M Nicoletti (Respondent)
File number(s): 103299 Publication Restriction:
REASONS FOR DECISION
Background
This is an application for review of the decision of the Director-General to refuse to grant a licence to Mr and Mrs Boutros (the applicants) under the Motor Dealers Act 1974 (the MD Act). The decision dated 26 October 2010 was affirmed on internal review on 18 November 2010.
It is not in dispute in this matter that at the time of the application the applicants were subject to disqualification from holding a licence: on 5 December 2002 the respondent made a decision to permanently disqualify the applicants from holding a licence, or being concerned in the direction, management or conduct of a business under the MD Act ("the disqualification decision"). Subsequently no application for review of the disqualification decision was pursued by the applicants.
The application for review was listed for a preliminary hearing as to the Tribunal's jurisdiction on 17 June 2011. The parties' representatives filed detailed written submissions which were supplemented with oral submissions during the hearing. These will be further detailed below.
By way of further background the following matters are noted. The applicants were the directors of the corporation called LLRAC Pty Ltd from 30 November 1993. LLRAC was licensed as a motor dealer under the MD Act from 26 November 1997. It is said by the Respondent that due to information received about breaches of relevant legislation by the applicants, LLRAC was served with a Notice of Suspension of Licence and during the period of suspension the respondent commenced prosecution action under the MD Act. In December 2002 the respondent served on LLRAC A Notice to Show Cause. On 10 September 2002 LLRAC was convicted in the Burwood Local Court of 33 counts of speedometer interference and failure to produce records, and penalties were imposed by the court. (This history, as summarised in the respondent's written submissions for the hearing, was not contested by the applicant during the proceedings: the Tribunal makes no findings in relation to this history for the purpose of the current proceedings). On 5 December 2002 the respondent served the applicant and LLRAC with a determination permanently disqualifying LLRAC and the applicants from holding a licence or being concerned in the direction, management or conduct of the business under the MD Act. No application for review of the decision of 5 December 2002 was made by the applicants within relevant time periods as prescribed by legislation. During the hearing the Tribunal was informed that the applicants had, previous to applying for the licence the subject of the current review proceedings, applied to this Tribunal for an extension of time to review the disqualification decision, however, the applicants had decided to withdraw that application. The Tribunal was told that the applicants then proceeded to make the application for a licence which is the subject of the decision in the current review proceedings.
Legislative provisions
The present matter involves a consideration of provisions of the Motor Dealers Act 1974 and the Administrative Tribunal Act 1997. The Motor Dealers Act 1974 (the MD Act) provides for statutory regulation of motor dealers, and their industry. The Administrative Decisions Tribunal Act 1997 (the ADT Act) provides, amongst other matters, for review of administrative decisions.
Section 12 of the MD Act provides for grant of applications for a licence by the respondent (section 12 is set out at paragraph 17, below).
Section 20F of the MD Act provides for an application for review by the Tribunal, from a decision of the respondent to refuse to grant an application for a licence, or from a decision of the respondent to disqualify a licence holder from holding a licence. (Section 20F is set out at paragraph 19, below).
Section 20E of the Act provides for disciplinary measures by the respondent and section 20E(1)(d) provides that the Director-General may disqualify the holder of a licence, or any person involved in the direction, management or conduct of the business, from being the holder of a licence, or being concerned in the direction, management or conduct of the business in respect of which a licensed it is required. (Section 20E is set out at paragraph 18, below)
Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Director-General, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The parties' submissions
As noted above, the parties' representatives made detailed written submissions and oral submissions at the hearing. Those submissions will not be summarised in their entirety in these written reasons for decision. The Tribunal will detail the main arguments.
The respondent presented two main arguments: the first was that the Tribunal does not have jurisdiction in this matter because the decision to refuse to grant a licence to the applicants, on the facts in the present matter, is not a reviewable decision. The second main argument was that even if the decision is a reviewable decision, the Tribunal must find, according to section 12(2)(b) of the MD Act, that it was mandatory for the respondent to refuse the applicants' application for the grant of a licence because the applicants were permanently disqualified in 2002.
The applicant states that the decision under review is a reviewable decision and provides legal submissions to support this view; and further states that the legislation permits the applicant to seek review by the Tribunal of the respondent's refusal to grant the applicants a licence, and that such extends to a proper consideration by the Tribunal of the entire history of the applicants' licence eligibility: the applicants submit that on review the applicants are entitled to present evidence that the applicants are fit and proper persons, and to traverse factual material and history relating to the licence disqualification. The applicant rejects the respondent's proposition that the very fact of the applicant's disqualification in 2002 mandates, pursuant to section 12 (2)(b) of the MD Act, that the current application for the grant of the licence must be refused by the respondent.
Discussion of law and evidence
In this matter it was not in dispute that the applicants had, in 2002, been permanently disqualified from holding a licence or being involved in the direction, management or conduct of the business in respect of which a licence is required. What is in dispute is how relevant legislation applies to this situation.
The Tribunal will set out the relevant legislation as the parties have made detailed submissions as to the meaning to be given to various legislative provisions.
Section 12 of the MD Act provides for the grounds on which an application for a licence is to be granted or refused:
12 Grounds on which application to be granted or refused
(1) Subject to subsections (2), (4), (5), (6) and (8), the Director-General shall grant an application for a licence.
(2) An application for a licence made by a natural person shall be refused if it appears to the Director-General that:
(a) the applicant has not attained the age of 18 years,
(b) the applicant is disqualified from holding a licence,
(c) the applicant is an undischarged bankrupt,
(d) the applicant does not have, or is not likely to continue to have, sufficient financial resources to enable the person to carry on business pursuant to the authority that would be conferred by the licence if it were granted,
(e) the applicant is not a person likely to carry on such a business honestly and fairly,
(f) the applicant does not have the prescribed qualifications or does not have sufficient knowledge or expertise to carry on such a business,
(f1) the applicant is a controlled member of a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2009 ,
Note: Controlled members are prohibited from applying for licences-see section 27 of the Crimes (Criminal Organisations Control) Act 2009 .
(g) the applicant is in any other way not a fit and proper person to be the holder of a licence, or
(h) any person with whom the applicant intends to carry on, in partnership, business pursuant to the authority that would be conferred by the licence if it were granted is a person in respect of whom the Director-General would be required to refuse an application for the licence if that person were the applicant, or
(i) the applicant has (as an adult), within the preceding 10 years, been found guilty of an offence involving, or relating to:
(i) stealing a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900 ), or
(ii) receiving, or unlawful possession of, a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900 ) or a motor vehicle part.
(3) Without affecting the generality of subsection (2) (g), the Director-General may, in determining whether an applicant is not a fit and proper person to be the holder of a licence, have regard (if such be the case) to the fact that the applicant:
(a) has, during the period of 10 years that last preceded the making of the application, been convicted of, or served any part of a term of imprisonment for, an offence in New South Wales or elsewhere involving fraud or dishonesty,
(b) was, at the time of the making of the application, bound in relation to such an offence by a recognizance,
(c) had, at the time of the making of the application, a charge pending against the applicant in relation to such an offence, or
(d) has, at any time, been convicted of an offence against this Act or the regulations or any other enactment administered by the Minister.
(3A) Without affecting the generality of subsection (2) (g), a person is not a fit and proper person to be the holder of a licence if the Director-General has reasonable grounds to believe from information provided by the Commissioner of Police in relation to the person that:
(a) the person is a member of, or regularly associates with one or more members of, a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2009 , and
(b) the nature and circumstances of the person's relationship with the organisation or its members are such that it could reasonably be inferred that improper conduct that would further the criminal activities of the declared organisation is likely to occur if the person is granted a licence.
...(4) ... [provisions relating to body corporates]....
(6) An application for a licence may be refused if:
(a) some other licence is in force in respect of a place of business, or any part of a place, to which the application relates, or
(b) the carrying on of the business at that place or part of a place is, for any reason, unlawful.
(7) Where an application for a licence is refused, the Director-General shall forthwith, by notice in writing served on the applicant, inform the applicant of the refusal and of the ground on which the refusal is based and, where the application was accompanied by the prescribed fee for the licence, the Director-General shall, as soon as practicable, refund to the applicant that fee.
(7A) The Director-General is not, under subsection (7), Part 2 of the applied Act (within the meaning of section 10) or any other Act or law, required to give any reasons for refusing an application for a licence because of subsection (3A) to the extent that the giving of those reasons would disclose any criminal intelligence.
(8) An application for a licence shall not be granted until the applicant has paid to the Director-General the prescribed fee (which may include an initial contribution to the Fund) for the licence.
(9) Where an application for a licence is granted:
(a) the applicant shall be deemed to be the holder of the licence granted, and
(b) theDirector-General shall forthwith, by notice in writing, inform the applicant of the granting of the application.
(10) Notwithstanding anything in this section, the Director-General may refrain from granting an application for a licence unless:
(a) any natural person to whom the application relates, and
(b) the directors and officers of any body corporate to which the application relates,
or such of them as the Director-General specifies or refers to, has or have appeared personally before the Director-General and satisfied the Director-General as to such relevant matters referred to in this section as the Director-General thinks appropriate.
Sections 20D and 20E provide for disciplinary measures, including suspension or disqualification of the licence of a licence holder:
20D Notices to show cause
(1) Where, at any time, the Director-General is of the opinion that there are reasonable grounds for believing that:
(a) a licence may have been improperly obtained or, at the time a licence was granted, there may have been grounds for refusing to grant it,
(b) the holder of a licence has been convicted of an offence against this Act or the regulations or any other enactment administered by the Minister,
(b1) the holder of a licence has been convicted of an offence under section 22 (2) or (4) of the Road Transport (Vehicle Registration) Act 1997 (Affixing of interstate number-plates on registrable vehicles in New South Wales),
(c) the holder of a licence may have failed to comply with this Act or the regulations, a condition or restriction to which the licence is subject or an order of the Tribunal applicable to the holder,
(d) the holder of a licence has, within the period of 10 years that last preceded the grant of the licence, been found guilty of an offence involving fraud or dishonesty punishable on conviction by imprisonment for 3 months or more,
(d1) the holder of a licence has (as an adult), within the preceding 10 years or the period of 10 years that last preceded the grant of the licence, been found guilty of:
(i) an offence involving, or relating to, stealing a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900 ), or
(ii) receiving, or being in unlawful possession of, a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900 ) or a motor vehicle part,
(d2) in the light of evidence acceptable to the Director-General, the holder of the licence is probably receiving or dealing in stolen goods,
(e) the business to which a licence relates is being carried on in a dishonest or unfair manner,
(f) if a person were not the holder of a licence, the Director-General would be required by section 12 (2), (3A) or (4) to refuse an application by the person for a licence,
(g) in the case of a holder of a dealer's licence (being a body corporate), the holder:
(i) is in the course of being wound up,
(ii) is under official management,
(iii) is a body corporate in respect of which a receiver or manager has been appointed, or
(iv) has entered into a compromise or scheme of arrangement with its creditors,
or may, for any other reason, be unable, or is likely to become unable, to meet the holder's liabilities,
(h) the holder of the licence has, for a period of 1 month or more, ceased to carry on the business to which the licence relates at a place of business to which the licence relates,
(i) the holder of the licence is contravening another Act or an instrument made under another Act by carrying on the business to which the licence relates at a place of business to which the licence relates, or
(j) the holder of a licence is, for any other reason, not a fit and proper person to continue to hold a licence,
theDirector-General may, by notice in writing served on the holder of the licence, call upon the holder to show cause, within such period, being not less than 14 days, as is specified in the notice, why the holder should not, for the reasons specified in the notice, be dealt with in accordance with this Division.
(1A) By way of example of the operation of subsection (1) (d2), the Director-General may consider that the holder of a licence in whose custody stolen goods are found is probably receiving or dealing in stolen goods.
(2) The holder of a licence on whom a notice to show cause has been served, a person with whom, pursuant to section 19 (2), the holder of the licence carries on, in partnership, the business to which the licence relates or, where the holder is a body corporate, a director or officer of the body corporate may, within the period specified in the notice, make submissions, orally or in writing, and adduce evidence with respect to the matters to which the notice relates.
(2A) The holder of a licence on whom notice to show cause has been served under this section may not surrender the licence unless the Director-General has made a determination under section 20E in relation to each matter to which the notice relates.
(3) The Director-General may conduct such inquiry or make such investigation in relation to the matters to which the notice relates and the submissions made, if any, and the evidence adduced, if any, by or on behalf of the holder of the licence in relation to those matters as the Director-General thinks fit.
(4) Subsection (1) does not require the Director-General to disclose any criminal intelligence in a notice served on the holder of a licence because of the matter referred to in section 12 (3A).
20E Determination of disciplinary measures by the Director-General
(1) If, after compliance with section 20D, the Director-General is satisfied that any matter referred to in section 20D (1) has been established, the Director-General may do any one or more of the following:
(a) reprimand the holder of the licence,
(b) require the holder of the licence to comply within a specified time with a requirement specified by the Director-General,
(c) suspend the licence for a period not exceeding 12 months,
(d) disqualify the holder of the licence or any person concerned in the direction, management or conduct of the business to which the licence relates from holding a licence or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required, either permanently or for such period as the Director-General thinks fit,
(e) impose a condition or restriction to which the licence shall be subject,
(f) cancel the licence.
(1A) Without limiting the powers conferred by subsection (1), among the requirements that the Director-General may specify under subsection (1) (b) is a requirement that the holder of the licence concerned:
(a) make an additional contribution to the Fund of such amount as the Director-General specifies, or
(b) indemnify the Fund to such extent as the Director-General specifies in the event of a particular contingency arising concerning the activities of the holder of the licence.
(1B) Despite subsection (1), the Director-General must cancel the licence concerned if satisfied that:
(a) a matter referred to in section 20D (1) (d1) has been established, or
(b) in the case of a licence holder that is a body corporate, if the body corporate were not the holder of a licence, the Director-General would be required by section 12 (4) (k) to refuse an application by the body corporate for a licence.
(1C) Despite subsection (1), the Director-General must cancel the licence concerned if satisfied that the matter referred to in section 12 (3A) has been established.
(2) Where, under subsection (1), the Director-General requires the holder of a licence to comply with a requirement specified by the Director-General, the holder of the licence shall comply with the requirement within the time specified by the Director-General under that subsection.
(3) Where the Director-General disqualifies the holder of a licence under subsection (1) (d), the Director-General shall cancel the licence.
(4) Where the Director-General suspends or cancels a licence under this section, the suspension or cancellation shall take effect on and from such day as is determined by the Director-General and notified, by notice in writing, to the holder of the licence.
(5) Where the Director-General:
(a) suspends a licence-the holder of the licence, or
(b) cancels a licence-the former holder of the licence,
shall return the licence to the Director-General within a period specified by the Director-General when suspending or cancelling the licence.
(6) A person disqualified under subsection (1) (d) shall not, while disqualified:
(a) hold a licence, or
(b) be concerned in the direction, management or conduct of a business for which this Act requires a licence to be held.
In relation to reviews to the Tribunal, section 20F relevantly provides:
20F Reviews by the Administrative Decisions Tribunal
(1) If the Director-General:
(a) refuses to grant an application for, or suspends or (under any provision of this Act) cancels, a licence, or
(b) imposes a condition or restriction under section 14, or
(c) imposes a disqualification referred to in section 20E (1) (d),
the applicant for the licence, the person who held the licence or the person disqualified (as the case may be) may apply to the Administrative Decisions Tribunal for a review of the decisions of the Director-General.
(2) On an application for a review of a decision of the Director-General to refuse to grant a licence to a person because of a fact referred to in section 12 (3) or (5), the Administrative Decisions Tribunal may determine that the fact should be ignored on one or more of the following grounds:
(a) the triviality of the acts or omissions giving rise to the offence concerned,
(b) the time that has passed since the offence concerned was committed,
(c) the subsequent good behaviour of the offender,
(d) any other ground prescribed by the regulations
Is the decision under review a reviewable decision?
The Tribunal carefully considered the submissions by both parties on this issue and these written reasons for decision will not address all aspects of those submissions. The submissions were discussed with the parties' representatives during the hearing. The respondent made a number of submissions, including that there was a distinction between the criteria in section 12 (2) (a),(b) and (c) of the MD Act, which the respondent stated did not require a decision to be made, and the other criteria in section 12(2) (d) -(g) of the MD Act, all of which required the respondent to form a view as to those criteria and to reach a "decision" in relation to those criteria. An analogy with cases relating to the issue of a notice of suspension of a drivers licence was made. The case of RTA v Wilson & Anor [2002] NSWCA 279 was referred to in some detail: essentially it is submitted by the respondent that similarly to the issue of the notice of suspension of a drivers licence due to 12 to demerit points, in deciding to refuse the applicants' application for the grant of a licence, no decision was made by the respondent. It is said that given the applicants' disqualification, section 12(2)(b) of the MD Act provides for mandatory refusal and so there is no decision made by the respondent. Given the lack of such decision, and considering the provisions of sections 6 and 7 of the ADT Act, there is no reviewable decision and the Tribunal has no jurisdiction.
The applicant rejects this interpretation of the legislative requirements. The applicant submits that the legislation makes clear that where the Director-General refuses an application for a licence the person who is the applicant may appeal or seek review of the decision by the Tribunal. The applicants submit that to find differently would be to subvert the review function in the MD Act, and envisaged by the ADT Act, and would be contrary to the purpose of the legislation. The applicant refers to section 8 of the ADT Act in support of the applicants' view as to the decision being a reviewable decision.
I am satisfied that the decision under review is a reviewable decision. I am not satisfied that the legislative provisions relating to the suspension of a licence due to accrual of a specific number of demerit points, is analogous to the provisions of section 12 of the MD Act and related provisions of the MD Act. The words of the statute are clear in providing for review of a decision to refuse an application for the grant of a licence. Further, subsection 12(2) of the MD Act does not draw any distinction between the various grounds in subparagraphs (a)-(g), so that the Tribunal could draw a conclusion that a decision under one subparagraph is to be treated differently, in the context of the ability to apply for review by the Tribunal, to a decision under another subparagraph of section 12. The Tribunal is not persuaded that any provision of the ADT Act lends support to the respondent's contention. As such the Tribunal is satisfied, having found that the decision is a reviewable decision, that the Tribunal has jurisdiction in relation to the decision under review.
On the evidence in the present case, does the fact of the applicants' disqualification mean that the Tribunal must affirm the decision under review?
In answering this question, which the parties' representatives agreed during the hearing was a threshold issue listed for determination in this preliminary hearing on 17 June 2001, the Tribunal has carefully considered the parties submissions and applicable legislation.
Section 12 (2)of the MD Act clearly provides that where certain specified circumstances apply in the case of an applicant for a licence, then the Director-General shall refuse the application. The use of the word "shall" means that it is a non-discretionary matter. Some circumstances require consideration of a very narrow factual issue, for example, the applicant's age - subsection 12(2)(a) provides that if the Director-General is satisfied that the applicant is under 18 years of age then the Director-General shall refuse the application for the grant of a licence. Other circumstances require a more complex fact-finding exercise, for example subsection 12(2) (g) of the MD Act requires consideration of whether the applicant is "in any other way not a fit and proper person to be the holder of a licence". In respect of all the circumstances which the Director-General is directed to consider under subsection 12(2), if satisfied of the particular circumstance, the Director-General shall refuse the application for a licence.
Relevant to the present case are the provisions of section 12(2)(b) of the MD Act. That provision states that the Director-General shall refuse an application for a licence if it appears to the director general that the applicant is disqualified from holding a licence. That the Director-General is to refuse an application in such circumstances is clear from the use of the word "shall".
I am satisfied that once it is established, as fact, that an applicant for a licence is disqualified from holding a licence, then section 12(2) of the MD Act provides that the Director-General shall refuse the application for a licence. In the present case there is no dispute that the applicants are currently disqualified from holding a licence: the applicants are disqualified on a permanent basis by the decision made in 2002.
The applicant submits that the Tribunal, in conducting a review of the current decision, must consider all the matters which the applicant wishes to raise in the context of the history of the matter including, in essence, matters relevant to the decision to disqualify the applicant - that is, the Tribunal should consider the merits of the original decision (the disqualification decision) as a relevant matter in deciding whether the applicants should be granted a licence under the Act. The applicant submits that the applicant should be able to rely on evidence that the applicant is a fit and proper person to be the holder of a licence. The Tribunal observes that section 12 of the MD Act, which provides the legislative framework for the grant of an application for a licence, does not provide for any consideration of the merit of an applicant's disqualification, rather it provides that where an applicant is disqualified from holding a licence, the application for a licence shall be refused. Section 12(2) does not invite the decision maker, in deciding whether to refuse the licence application, to assess the disqualification, section 12(2) states that the application for a licence shall be refused if the applicant is disqualified - it is the fact of the existing disqualification which is relevant.
It is the decision under section 12(2) to refuse the application for a licence which is the subject of the current proceedings and on my construction of that provision I am satisfied, having regard to the fact of the applicants' disqualification, that the correct and preferable decision, according to the law and evidence as discussed above, is that the application for a licence be refused. As such I am satisfied that the correct and preferable decision, according to the law and evidence, is to affirm the decision under review on this basis.
In making this finding I have carefully considered the applicants' submissions as to the construction of the legislation, and the Tribunal's jurisdiction to review whether the decision refusing the applicants' application for a licence. I was not persuaded by the applicants' submissions that the applicants should be entitled, in the current proceedings, to examine the merit of the disqualification decision, and adduce other relevant evidence to demonstrate that the applicant is a fit and proper person or should be granted a licence on some other ground under section 12(2) of the Act. For the reasons discussed above, the Tribunal is satisfied that under the provisions of section 12(2)(b) of the MD Act, once the fact of disqualification is proved, section 12(2) provides that the Director-General is to refuse the application for a licence. Section 12 does not provide for an examination of the circumstances behind the disqualification.
The applicant relied on submissions linking various provisions of the MD Act. In particular, the applicant submitted that section 20F of the MD Act, which provides for review by the Tribunal of a refusal to grant an application for a licence, or a decision to impose a disqualification, meant that such decisions were reviewable decisions. The respondent noted that relevant provisions of the legislation referred to a decision to impose a disqualification on a licence holder, and the current decision was to refuse an application by a disqualified applicant. The Tribunal is not persuaded, as set out above, that the decision under review is a decision to disqualify the applicants from holding a licence (as current licence holders), which is a reviewable decision under s20F - the applicants were not current licence holders, nor was the decision under review a decision to disqualify the applicants. The decision under review, is a decision to refuse the applicants' application for a licence. This decision did not involve a consideration of the original disqualification decision, or the merits or facts of that decision, rather s12(2)(b) states that the licence application shall be refused if the applicant is disqualified. In the present case the evidence is that the applicants were permanently disqualified in 2002.
Section 12(2) does not provide for examination of the disqualification or any consideration of the merit of the disqualification decision. Rather, it is the fact of the prior disqualification, that is a relevant fact in the decision under review.
The Tribunal notes the applicant's submissions that section 20F(2) enables the Tribunal to consider matters including the time which has passed since the commission of the offences, and the applicants' subsequent good behaviour. However the Tribunal observes that section 20F(2), which allows the Tribunal to determine that facts may be ignored on specified grounds, relates to a decision to refuse an application for a licence because of facts referred to in s12(3) or (5) - in the present case it is the fact of disqualification, a fact referred to in s12(2) and not s12(3) or (5), which is in issue. Section 20F(2) does not apply to a decision based on a fact referred to in s12(2).
The legislation provides that a person subject to such a disqualification may apply for review of that decision. The decision was made in 2002. Time limits apply to review applications and the reasons that time limits apply is recognised as including that fairness to all parties flows from the timing of a review hearing being proximate in time, to the time of the making of the decision under review. The disqualification decision was made in 2002. At the time of the application for a licence it was some eight years from the time of that decision. In the present matter there is no application before the Tribunal requesting a review of a decision made in 2002, nor is there an application before me requesting an extension of time to make an application to review the disqualification decision of 2002. Accordingly, in the present proceedings, I am not required to determine an application for review of a decision made in 2002, nor am I required to consider whether an extension of time should be granted for such an application. There are no such applications before me in the current proceedings.
The applicants made submissions that the Tribunal had jurisdiction based on principles enunciated by the Supreme Court of New South Wales in the case Chase Oyster Bar Propriety Limited And Others V Hammo Industries Propriety Limited And Another [2010] NSWCA190. This was a case dealing with questions relating to the powers of the Supreme Court, in exercising its supervisory jurisdiction. In particular, the case focused on a determination by an adjudicator under the Building and Construction Industry Security of Payment Act, and whether such a determination was amenable to judicial review, leading, in appropriate cases, to orders by the Supreme Court in the nature of certiorari for jurisdictional error. The Court found that, in exercise of its supervisory jurisdiction, the Supreme Court has power to determine an adjudication application, not made in compliance with relevant legislation, and can set it aside granting relief in the nature of certiorari. As part of its consideration the Supreme Court referred to a decision of the High Court and the applicant referred the Tribunal to this decision: Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 (at paragraphs 91 and 92). This was a case where the High Court examined whether the Australian Content Standard made by the Australian Broadcasting Authority was invalid to the extent it was inconsistent with the Trade Agreement and Protocol. The relevant Australian Content Standard was made pursuant to section 122 of the relevant statute. The High Court found that section 122 was to be viewed in the context of section 160 of the relevant statute, which the Court saw were interlocking provisions, and the Court found that s160 was the dominant provision of the statute, directing how the function conferred by section 122 was to be carried out. The High Court found that s122 functions must be carried out within the framework imposed by section 160 of the relevant legislation (refer paragraph 81 of the decision). The High Court examined whether the act which was done under section 122, in breach of section 160, was invalid. The Court found that the distinction between mandatory and directory provisions was not the issue, the issue was whether an act done in breach of a legislative provision is invalid. The High Court note with approval a previous decision of the Supreme Court of NSW dealing with the issue of mandatory and discretionary provisions.
After careful consideration, I have not found the cases cited above to have application to the present case: the High Court decision focuses on whether an act done in breach of a relevant statute is invalid. In the present case the Tribunal was not presented with evidence to suggest that a decision maker had performed acts in breach of relevant statutory provisions, in making the decision under review. In the present case the decision under review is the decision to refuse the applicants' application for a licence, such decision being made under the provisions of section 12(2) of the MD Act. The Supreme Court, in the case of Chase Oyster Bar Propriety Limited And Others V Hammo Industries Propriety Limited And Another [2010] NSWCA190, focuses on a decision made by an adjudicator in respect of which there is jurisdictional error, and considers the supervisory jurisdiction of the Supreme Court in this situation. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 provides a useful discussion of the general principles of statutory construction and interpretation which the Tribunal has carefully considered. The High Court (per McHugh, Gummow, Kirby and Hayne JJ) stated at paragraphs 69-71:
Conflicting statutory provisions should be reconciled so far as is possible
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute[45]. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"[46]. In Commissioner for Railways (NSW) v Agalianos [47], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed[48].
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals[49]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions[50]. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other"[51]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision[52]. In The Commonwealth v Baume [53] Griffith CJ cited R v Berchet [54] to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
And the Court further stated at paragraphs 79 to 81
The express words of s 160 require the ABA to carry out its functions in accordance with the directions given by that section. Section 160 therefore provides the conceptual framework in which the functions conferred by s 158 are to be carried out. The function specified in s 158(j) encompasses the direction in s 122 to "determine standards" to be observed by commercial and community television broadcasting licensees. The carrying out of the directions in s 122 is therefore one of the functions of the ABA.
If s 122(1) and (2) were given their grammatical meaning, without regard to the provisions of s 160, they would authorise the making of standards which were inconsistent with Australia's obligations under international conventions or under its agreements with foreign countries. However, the express words of s 122(4) and the mandatory direction in s 160 show that the grammatical meaning of s 122(1) and (2) is not the legal meaning of those sub-sections. When s 122 is read with s 160, the legal meaning of s 122 is that the ABA must determine standards relating to the Australian content of programs but only to the extent that those standards are consistent with the directions in s 160. If, by reason of an obligation under a convention or agreement with a foreign country, it is impossible to make an Australian content standard that is consistent with that obligation, the ABA is precluded by s 160 from making the standard, notwithstanding the literal command of s 122(1) and (2). Accordingly, in making the Australian Content Standard in December 1995, the ABA was under an obligation to ensure that the Standard was not inconsistent with the Trade Agreement or the Protocol.
The majority judges in the Full Court in the present case were therefore in error in holding that the relationship of s 160 and s 122 is that of a general and a special provision. They are interlocking provisions, with s 160 - the dominant provision - directing how the function conferred by s 122 is to be carried out. The power conferred by s 122 must therefore be exercised within the framework imposed by s 160.
In the present case there is no provision of the statute, the MD Act, which provided a framework indicating that section s12(2) was to be constructed other than by the clear words of the section, in the context of the MD Act. When the MD Act is viewed as a whole there is nothing which indicates that s12(2) is subordinate to any other part of the legislation so that the words used in s12(2) should be read differently to their clearly stated meaning. Indeed, the importance of s12(2) may be indicated by the provisions of section 20D(1)(f) of the MD Act which provides that the Director-General may require a licence holder to show cause if there are reasonable grounds for believing that : if a person were not the holder of a licence, the Director-General would be required by section 12 (2), (3A) or (4) to refuse an application by the person for a licence. Further, section 20D(1)(a) provides that a licence holder may be required to show cause if the Director-General is of the opinion that there are reasonable grounds for believing that: a licence may have been improperly obtained or, at the time a licence was granted, there may have been grounds for refusing to grant it (and the Tribunal notes grounds for refusing to grant a licence would include those set out in s12(2)). Therefore, other provisions of the MD Act indicate the importance of licence approval/refusal decisions being made consistently with the requirements of section 12(2) of the MD Act. Considering the provisions of the MD Act as a whole, I am satisfied that s12(2) should be given the meaning which is clearly indicated by the words used. As detailed above, I am satisfied that the words of section 12(2)(b) provide that where an applicant is disqualified from holding a licence the Director General shall refuse the application for a licence.
In the present case, the fact of the applicants' disqualification is established and is not in dispute. As discussed above, on this basis I find, having regard to the fact of the applicants' disqualification, that the correct and preferable decision, according to the law and evidence, is that the application for a licence be refused. As such I am satisfied that the correct and preferable decision, according to the law and the evidence, is to affirm the decision under review.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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