Building Professions Accreditation Corporation Tasmania Ltd v Minister for Infrastructure Energy and Resources - [2005] TASSC 73

[2005] TASSC 73

CITATION:Building Professions Accreditation Corporation Tasmania Ltd
v Minister for Infrastructure Energy and Resources [2005] TASSC 73

PARTIES:BUILDING PROFESSIONS ACCREDITATION
CORPORATION TASMANIA LTD
v
INFRASTRUCTURE ENERGY AND RESOURCES,

MINISTER FOR

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  143/2004
DELIVERED ON:  5 August 2005
DELIVERED AT:  Hobart
HEARING DATE:  10, 15 February 2005
JUDGMENT OF:  Evans J

CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Improper purposes – Irrelevant considerations – Relevant considerations – Unreasonableness – Procedural fairness – No evidence.

Judicial Review Act2000 (Tas).
Building Act2000 (Tas) Pt4.
Aust Dig Administrative Law [1033 – 1036] and [1045]

Statutes – Acts of Parliament – Interpretation – Interpretation Acts and clauses – Tasmania – Application of s10A(1).

Acts Interpretation Act1931 (Tas).
Aust Dig Statutes [41]

REPRESENTATION:

Counsel:
             Applicant:  M E O'Farrell
             Respondent:  P Turner
Solicitors:
             Applicant:  Toomey Manning & Co
             Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 73
Number of paragraphs: 44

Serial No 73/2005
File No 143/2004

BUILDING PROFESSIONS ACCREDITATION CORPORATION TASMANIA LTD
v MINISTER FOR INFRASTRUCTURE ENERGY and RESOURCES

REASONS FOR JUDGMENT EVANS J

5 August 2005

The Building Professions Accreditation Corporation Tasmania Ltd, the applicant, applies pursuant to the Judicial Review Act 2000 ("JRA") for a review of the refusal of the Minister for Infrastructure, Energy and Resources ("the Minister") to authorise the applicant to be an authorised body for the purposes of accrediting specific categories of building practitioners under the Building Act 2000. That Act relevantly provides:

"3 ¾ (1) In this Act unless the contrary intention appears ¾
'accredited building practitioner' means a building practitioner who is accredited under Part 4 and whose accreditation is in force;
'building practitioner' means a person of one of the following categories:
(a)a designer, other than a plumber, who is responsible for the design, documentation or certification of the design or inspection of building work, plumbing work, buildings or plumbing installations;
(b)a building surveyor or assistant building surveyor who is responsible for document assessment, certification, determination or inspection of building work or buildings;
(c)a builder who is responsible for the management, carrying out or certification of building work;

'designer' means an architect, engineer, draftsperson, building designer or building services designer;
'scheme' means the scheme referred to in section 19(2)(a)(i);"
"PART 4 – Accredited building practitioners
Division 1 – Authorised bodies
Application to be authorised body
19 ¾ (1)    An incorporated body or statutory body may apply to the Minister to be an authorised body for the purpose of accrediting a specified category of building practitioner.
(2)   An application is to be accompanied by ¾
(a)     a statement detailing ¾
(i)the scheme under which the body proposes to grant accreditation; and
(ii)the code of conduct by which the body proposes to measure the performance of accredited building practitioners; and
(iii)the categories, and classes of those categories, of accreditation available and the minimum qualifications and experience or competency required for each category and class; and

(b)a statement specifying the representation on proposed committees of the body; and
(c)a prescribed fee.

Granting application
20 ¾ (1) The Minister may authorise a body to be an authorised body if satisfied that ¾
(a)the body has competence and expertise in accrediting building practitioners; and
(b)the statements referred to in section 19 demonstrate that the body is suitable to be an authorised body; and
(c)the proposed scheme meets any guidelines determined by the Minister.

(2)   The Minister may authorise more than one body to be an authorised body for accrediting a specified category of building practitioner.
(3)   The Minister may authorise a body to be an authorised body subject to any conditions the Minister considers appropriate.
(4)   …
(5)   The Minister may issue guidelines in respect of matters relating to a scheme under which accreditation is granted.

Withdrawal of authorisation
21 The Minister, by public notice, may withdraw the authorisation of a body to be an authorised body if ¾
(a)the body fails to comply with any condition of the authorisation; or
(b)the Minister is no longer satisfied as to any matter referred to in section 20(1).

General functions of authorised bodies
22 An authorised body is to ¾
(a)monitor compliance by accredited building practitioners with this Part; and
(b)provide a report to the Director as required by the Director."

A person may apply to an authorised body to be an accredited building practitioner in a particular category and class, s26(1). If the person is granted accreditation, the authorised body is to issue the person with a certificate, s27(1), which certificate remains in force for a period of three years, s28(1). A person must not carry out the work of a building practitioner in connection with building work which requires a building permit and the cost of which exceeds $5,000 unless the person is accredited in the relevant category and class, s23(1).

Guidelines for schemes for the accreditation of building practitioners were issued by the Minister under s20(5). The applicant provided the Minister with a comprehensive application for approval as an authorised body for the purposes of accrediting building practitioners in the categories of architect, engineer, and building surveyor. The application advised that the directors of the applicant would be the President or nominee of the Director of Engineers Australia, Tasmanian Division, the President or nominee of the Manager, Royal Australian Institute of Architects, and the Chairman or nominee and the Registrar of the Board of Architects of Tasmania. The application was said to be made with the endorsement of Engineers Australia – Tasmania Division; the Board of Architects of Tasmania and the Royal Australian Institute of Architects – Tasmanian Chapter and with in-principle support of: Association of Consulting Engineers, Australia – Tasmania Division, Association of Professional Engineers Scientists Managers Australia – Tasmania Division, Association of Consulting Architects – Tasmania Division and Australian Council of Building Design Professionals – Tasmania. In correspondence to which I will return, the Minister in effect told the applicant, with respect to its application, that he was satisfied of the matters specified in s20(1) and accordingly had the power to approve the application but considered that for the reasons he gave he should not do so, his primary reason being that the Tasmanian Compliance Corporation had already been so authorised and a number of detrimental consequences might flow from the authorisation of more than one body to accredit the same category of building practitioner.

The Minister had no discretion

The first contention advanced by the applicant on this review is that the Minister had no discretion to refuse to approve its application once he was satisfied of the matters detailed in s20(1). In other words, once so satisfied, the Minister was obliged to grant the application notwithstanding that the authority given to the Minister in s20(1) and (2) is in each instance vested in conjunction with the word "may". Ordinarily the use of "may" is a strong indicator that the authority granted is permissive, that is, discretionary. The Acts Interpretation Act 1931, s10A, relevantly provides:
"(1) In any Act ¾
…
(c)the word 'may' is to be construed as being discretionary or enabling, as the context requires.
(2) Subsection (1) applies only in respect of a provision of an Act if that provision is passed after the commencement of the Justice Legislation (Miscellaneous Amendments) Act 2000."
As to whether s10A(1) applies pursuant to subs(2) of that section to the Building Act, I note that pursuant to the Justice Legislation (Miscellaneous Amendments) Act 2000, s2(2), that Act, which added s10A to the Acts Interpretation Act, commenced on 14 November 2000. In relation to whether the relevant provisions of the Building Act were "passed after the commencement of the Justice Legislation (Miscellaneous Amendments) Act" there is room for debate about what is meant by "passed" in s10A(2). I am inclined to the view that the reference to when a "provision is passed" refers to the date when a Bill containing the provision finally obtained the approval of both Houses of the Parliament of Tasmania as distinct from the date upon which the Bill received the Royal Assent or the date upon which the provision commenced. It is logical that the rule of construction contained in s10A(1) should only apply to provisions approved by Parliament after the date on which s10A commenced and not provisions approved prior to that date that happen to have received Royal Assent or commenced after that date.

The Bill that now constitutes the Building Act was finally approved by both Houses of Parliament on 5 December 2000 and received the Royal Assent on 20 December 2000. The relevant provisions in the Act commenced on 3 February 2003; see Proclamation under the Building Act 2000 (SR 2003, No 93). As the date of each of these events occurred subsequent to the commencement of s10A, it is unnecessary to further explore which of them fixes the point in time when a "provision is passed" within the meaning of that term in s10A(2).

Consistent with s10A(1), the word "may" in the relevant provisions of the Building Act is to be construed as being discretionary or enabling as the context requires. The application of this statutory rule of construction is not, however, decisive in relation to the proposition advanced by the applicant. The provisions of the Acts Interpretation Act apply:

"… in the interpretation and construction of every Act … except in so far as –
(a)any provision of (the Acts Interpretation Act) is inconsistent with or repugnant to the true intent and object of the particular Act;
(b)the interpretation which any provision of (the Acts Interpretation Act) would give to anything contained in such particular Act … is inconsistent with the context thereof or with any … interpretation contained in such particular Act …", Acts Interpretation Act, s4(1)."

This provision is an express statement to the effect of that which is implied by the common law. An interpretation provision ordinarily applies "unless the contrary intention appears" even if that phrase is not contained in the provision; Knightsbridge Estates Trust, Ltd v Byrne [1940] AC 613 at 621, Transport Accident Commission v Treloar [1992] 1 VLR 447 at 449, and Buresti v Beveridge (1998) 158 ALR 445 at 447. It may be manifest from legislation, having regard to its language, the context of the relevant provisions and its general scope, purpose and object, that although the word "may" has been used to confer an authority, the authority must be exercised if the circumstances are such as to call for its exercise; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134 – 135 and Samad v District Court of New South Wales (2002) 209 CLR 140 at 152 [32]. Cole vEsanda Ltd [1982] Tas R 130 is a case where this approach to the construction of legislation resulted in a finding that the forfeiture of a boat in the possession of a person who contravened the provisions of the Fisheries Act 1959 was a mandatory and not a discretionary consequence of that contravention notwithstanding the use of the word "may" in a provision of that Act which dealt with the court's power to make a forfeiture order.

The Building Act, Div1, Pt4 , which contains the provisions in question, confers power on the Minister in relation to the authorisation of bodies to accredit building practitioners and to withdraw that authority. The Division fulfils an aspect of an objective of the Act to regulate those involved in the construction and maintenance of buildings. I am unable to discern anything from this objective, the language used in the Division or its context that supports the proposition that the authority bestowed on the Minister imposes a mandatory obligation to approve each body as to which the Minister accepts that the matters detailed in s20(1) have been satisfied. To so hold would mean that every complying body that applied would have to be approved and could result in many bodies being authorised to accredit one or more category of building practitioners. This would be undesirable as without close monitoring and supervision, the various bodies could develop different approaches to and standards for accrediting a practitioner and it could create a climate in which, in order to attract applicants for accreditation and retain the support of applicants accredited by it, a body might be tempted to adopt a less than stringent approach to accreditation standards and to the handling of complaints against practitioners registered with it. A multiplicity of accrediting bodies could also lead to uncertainty in the minds of the members of the public about the body to which enquiries or complaints about a particular practitioner should be made and about the qualifications and qualities that attach to the accreditation of a practitioner. I have no hesitation in concluding that the authority vested in the Minister by s20(1) and (2) in relation to the approval of accrediting bodies is discretionary and not mandatory.

Section 20(1) matters could not be reconsidered in the exercise of the discretion

An alternative contention advanced by the applicant is that if, as I have found, the Minister had a discretion to refuse an application notwithstanding that the matters detailed in s20(1) had been satisfied, the Minister's discretion was fettered by those matters and "he was not permitted to exercise his discretion by re-considering them". Before addressing this contention, I set out the following correspondence, (excluding some formal portions) in relation to the application and the Minister's decision.

Letter from the Minister to the applicant dated 23 March 2004:

"Mr Geoff Harper
Director, Tasmania Division
The Institution of Engineers Australia
Dear Mr Harper
I have before me an application from Building Professions Accreditation Corporation Tasmania Ltd (BPACT) seeking appointment as an Authorised Body pursuant to the Building Act 2000.
The Director of Building Control has indicated that the application is compliant with the Accreditation Guidelines, however you would be aware that under section 20(2) of the Building Act, I am under no obligation to approve any application.
In order to favourably consider your application I need to be convinced that it is in the public interest that BPACT is approved as another Authorised body. I am aware that the scope of authorisation that is being sought is restricted to Professional Engineers and Architects, but this fact still raises some issues that require clarification from your organisation.
I, like the Parliament, as expressed during the debate on the Building Bill, believe that Authorised Bodies need to function in a manner that ensures independence from interest groups and operate in a manner that is fair, open and transparent. This must be considered in the light of the rights and perceptions of Accredited Building Practitioners and consumers.
On the issue of two or more Authorised Bodies offering accreditation services to the same category of Building Practitioners, I cannot see from BPACT's application how it is intended to overcome the potential problems as listed in the dot points below, and without that advice I am not convinced that a proper public interest case has been demonstrated.
I would need to be satisfied that the followings issues have been addressed, particularly in light of the proposed co-existence of two Authorised Bodies that accredit the same categories of building practitioner:
·    Ability to shop between Authorised Bodies to achieve lowest requirement;
·    Inconsistent requirements between Authorised Bodies;
·    Conflicts of interest (perceived or real) between membership and discipline;
·    Inconsistent conditional accreditation;
·    Multiple points of complaint/discipline;
·    Inconsistency of investigation/audit/outcome;
·    Potential for conflicting decisions to be referred to the Director of Building Control;
·    Different standards/approaches to determine competence;
·    Contrary to best practice considering consistency, transparency and the like;
·    Increased consumer cost due to reduced viability of current Authorised Body:
·    General experience is that tied bodies (membership organisations) do not or are not perceived as providing competent and unbiased review of their members' performance.

I am advised that a Memorandum of Understanding (MoU) between various building industry associations, known as the Joint Industry Group (JIG), was signed in August 2002, and that group was unanimous in its view that there should only be one Authorised Body. I quote from the covering letter that accompanied the MoU:
'a single body, rather than a number of disparate bodies, each undertaking the same tasks, will enable an efficient and more consistent application of the Act and therefore result in much greater public benefit'.

I note that two of the industry organisations that signed the JIG MoU, Engineers Australia and the Board of Architects Tasmania, are now Nominating Organisations for the BPACT application.
I am, however, inclined to agree with the original position reached by the JIG back in 2002. I also note that a number of associations are now working in concert with the currently accredited Authorised Body, the Tasmanian Compliance Corporation. by joining the Joint Industry Council and assisting the members they represent gain accreditation. Given the background information on the organisations provided in the BPACT application, it appears to me that this is a more appropriate role.
For BPACT's application to be progressed I would appreciate your advice on how the BPACT intends to address the previously mentioned public interest issues. This will allow my further consideration of BPACT's Application.
For your information, in response to representations from the Local Government Association of Tasmania indicating that the necessary Councils' systems required to facilitate the reforms associated with the Building Act 2000 are not in place. I have just announced that the Act will now not fully commence until 1 July 2004.
Yours sincerely
Bryan Green MHA
MINISTER"

Applicant's letter to the Minister dated 8 April 2004:
"Hon Bryan Green MHA
Minister for Infrastructure, Energy & Resources
Dear Minister
BPACT APPLICATION TO BECOME AN AUTHORISED BODY
UNDER THE BUILDING ACT 2000
Thank you for your letter of 23 March 2004 identifying some issues and advising that the Director of Building Control has indicated that our application is compliant with the Accreditation Guidelines.
We note that section 20(2) of the Building Act allows you to authorise more than one body to be an authorised body for accrediting a specified category of building practitioner.
The development of the requirements for the Act has been a long process which we have voluntarily spent many hours being involved in the Reference Groups right from the beginning. We acknowledge it is a complex matter needing open, consistent and transparent standards and processes.
We believe that it is in the public interest for you to approve our application to become an Authorised Body as our system is based on Nationally accepted competency standards and processes. This will facilitate mutual recognition of practitioners to and from Tasmania and ensure national standards are maintained. BPACT has been set up so that is [sic] at arms length from both professional bodies and individual practitioners to ensure that it can act in the best interests of the public. The National Professional Engineers Board has been set up in a similar manner and a recent review by the ACCC has confirmed this fact. Likewise the NSW Government has authorised the Institution of Engineers Australia (Engineers Australia), as an Accreditation Body under the EP&A Act to accredit qualified persons to provide building and subdivision certification.

Our Code of Professional Conduct and Rules for Building Practitioners clearly sets out the standards for practice expected of practitioners accredited by BPACT. The document will be publicly available to enable everyone to be aware of the standards required by an accredited professional building practitioner. These will be used for the basis for audit, complaints and investigations to ensure a fair, open, consistent and transparent approach. Our responses to the dot point issues in your letter are set out in the attachment to this letter.
We have endeavoured to arrange a meeting with your advisors concerning your letter however this has not been possible in the short term. We would be pleased to meet with you and/or your advisors at your earliest convenience to satisfy any remaining concerns you may have.
Yours sincerely
Geoff Harper
BPACT Ltd
Attachment 1
Responses to issues raised in your letter to Engineers Australia dated 23 March 2004
• SINGLE AUTHORISED BODY CONCEPT
The Board of Architects, Royal Australian Institute of Architects and Engineers Australia did support the concept of a single authorised body which had the support of the whole building industry where all practitioners were assessed prior to receiving accreditation against AQF academic qualifications and nationally accepted competency standards.
This was the basis for the Joint Industry Group's Memorandum of Understanding and I quote from item 1 – Purpose:
'1.1The purpose of this agreement is to establish a single Authorised Body as defined under the Building Act 2000 and to determine the level of Government funding required to create and operate the Authorised Body.
1.2This agreement requires the parties, at their own expense, to provide the criterion and process for the appropriate category(s) and class(es) of Building Practitioner as set out in the Guidelines for Schemes for the Accreditation of Building Practitioner (including AQF framework, national competencies, benchmarks) for approval by the Authorised Body.'

This position was again emphasised in the joint submission by fourteen bodies, including the Tasmanian Building and Construction Industry Training Board, concerning transitional provisions. A key issue in the submission was that for the public benefit it was essential that the competencies of building practitioners needed to be assessed prior to accreditation. A copy of the covering letter to the then Minister dated 21 August 2003 is attached for your information. I can supply a copy of the full submission on request.
Our support for a single body changed when the basis for accreditation for some building practitioners moved away from the AQF educational framework and nationally accepted competencies. To allow practitioners to be accredited based on evidence such as two or three completion certificates is not an adequate test of competence and will not give the public any confidence in practitioners accredited in this way.
We supported and assisted with the preparation of the application submitted by the Department of Consumer Affairs and Fair Trading, which recognised that there was a difference between academically qualified professionals, who had already had their competencies assessed against national standards, and other practitioners both in the processing of applications and the fees to be paid.
The Tasmanian Compliance Corporation (TCC) does not have the support of the whole of the industry nor is their basis for accreditation the AQF academic qualifications combined with nationally accepted competency standards.
• Ability to shop between authorised bodies to achieve lowest requirements
The minimum requirements for accreditation are set out in the Ministerial Guidelines for accreditation purposes and all Authorised Bodies are required to meet these. It would be a commercial decision for practitioners as to which Authorised Body they wished to be accredited by.
BPACT's requirements meet the Ministerial Guidelines and are based on nationally accepted competence standards which are also recognised internationally. We believe that this is essential to allow mutual recognition to occur between different states and territories in Australia and to the wider world.
We believe that it is in the public's interest to ensure that building practitioners meet nationally recognised standards.
We are committed to maintaining national standards and are not interested in reducing standards to attract additional practitioners to be accredited with us.
• Inconsistent requirements between Authorised Bodies
All requirements are set out in the Ministerial Guidelines and the Act and all Authorised Bodies are required to meet these. Should there be major problems with inconsistencies we would be prepared to meet with other Authorised Bodies under the Chairmanship of the Director of Building Control to resolve issues as they may arise.
·    Conflicts of Interest (perceived or real) between membership and discipline
BPACT is an independently incorporated body and its only members are its directors.
Only one of its initial directors is likely to be an accredited building practitioner. The directors have a wide range of skills and experience including those of an: engineer, company director, architect, lawyer, accountant, arbitrator, tax agent, registered company auditor, teacher, association manager and insurance agent.
Our application provides for the Building Practitioners Management Committee to review all processes and procedures that underpin the operation of the scheme. This Committee will advise the Authorised Body on any changes to processes and policies that are deemed to be necessary.
The Committee shall comprise the President/Chairman or nominee from the following organisations:
•   Engineers Australia – Tasmania Division,
•   Board of Architects of Tasmania,
•   Association of Consulting Engineers, Australia – Tasmania Division,
•   Royal Australian Institute of Architects – Tasmanian Chapter,
•   Association of Professional Engineers Scientists Managers Australia – Tasmania Division,
•   Association of Consulting Architects – Tasmania Division
•   Australian Council of Building Design Professionals – Tasmania
•   the Director or nominee of the Office of Consumer Affairs and Fair Trading, and
•   Consumer Representative, not associated with any of the above bodies
An invitation will also be extended to the Tasmanian Government Representative on the National Profession Engineers Board, and a Tasmanian representative on the Architects Accreditation Council of Australia.
• Inconsistent conditional accreditation
BPACT's application does not provide for any conditional accreditation and transitional accreditation is only provided for the engineers as follows:
'TRANSITIONAL PROVISIONS
Provisional accreditation for a period of up to six months will be issued to existing engineering practitioners in accordance with the Minister's guidelines.'
Under these circumstances we do not see how there could be any inconsistent conditional accreditation.
• Multiple points of complaints/discipline
A complaint can only be made to the Authorised Body who has accredited the practitioner and since people will only be accredited by one body then the complaint will have to be to the accrediting Authorised Body.
Similarly only the accrediting Authorised Body will be able to discipline a building practitioner.
Our website will clearly list all our accredited practitioners and therefore it will be easy for the public to identify where to lodge a complaint. We assume the Departments website will also list all accredited practitioners and identify clearly who has accredited them.
• Inconsistency of investigation/audit/outcome
Processes for investigations are clearly set out in the act.
The Ministerial guidelines requires under the 'Scope of Audit' that Auditors are to be independent of the authorised body and the building practitioner thus no matter if there was only one Authorised Body then audits are required to be carried out by third parties anyway. Our application provides for the use of ISO third party certification, a person on the list of approved auditors issued by Department of Treasury and Finance or other approved persons.
We also note that section 31 allows the Director to authorise any person to audit the work of an accredited building practitioner as if that person was carrying out an audit as an authorised body so it will be necessary for any/all authorised bodies to liaise with the Director regarding suitable auditors.
With the investigation of complaints, no matter which authorised body receives a complaint, in most cases an expert panel will be formed to consider matters and will make a decision on the facts available. This is no different from the court system having numerous judges or appointing juries to hear cases.
• Potential for conflicting decisions to be referred to the Director of Building Control
We are uncertain what type of conflicting decisions could be referred to the Director, as each complaint will be considered by the relevant Authorised Body only. If problems arise then we would be prepared to meet with other authorised bodies under the Chair of the Director to resolve them.
• Different standards/approaches to determine competence
The Ministerial Guidelines, attachment 2 as set out below, specify the competence required for categories engineer and architect and our application requires applicants, after the transitional period, to be register on the National Professional Engineers Register (NPER) or be a registered architect.
'Engineer Category
Competencies required to be registered on the National Professional Engineers Register.
Architect Category
Registration under the Architects Act 1929.'
·Contrary to best practice considering consistency, transparency and the like

Trade Practice Legislation, ACCC investigations, competition policy and the Hilmer report would suggest current best practice is a competitive market.
Our Code of Professional Conduct and Rules for Building Practitioners clearly sets out the standards for practice expected of practitioners accredited by BPACT. The document will be publicly available to enable everyone to be aware of the standards required by an accredited professional building practitioner. These will be used for the basis for audit, complaints and investigations to ensure a fair, open, consistent and transparent approach.
• Increased consumer cost due to reduced viability of current Authorised Body
Our application reduces the cost to the applicants and thus to the consumer compared with the TCC for individual applicants. If competition will reduce the TCC's viability then it should review its pricing policies. TCC was advised in writing on 7 October 2002 by the Chair of the Joint Industry Group (JIG), with a copy to Graeme Hunt, that the JIG rejected the TCC expression of interest for JIG to become involved with TCC's application to become an Authorised Body and had reaffirmed it's the JIG's position to become an authorised body in its own right.
We believe that competition is in the best interest of consumers.
Both the Board of Architects and Engineers Australia have indicated from the commencement of the Reference Groups activities some two years ago that they would both apply to be an authorised body. The Architects Act 1929 was amended to allow the Board of Architects to become an authorised body. Even when the JIG application was made, both bodies indicated that if the joint application was not successful then they would apply in their own rights.
Therefore it should not be a surprise to either your Department or the TCC that there is now a second application. The TCC should have priced their fees appropriately to ensure its viability with more than one authorised body. Even at the time TCC submitted its application they were aware of a second application.
Your predecessor, the Hon Jim Cox advised Geoff Harper that he had indicated to the TCC that he would approve a second authorised body if a complying application was forwarded to him by the Director of Building Control.
· General experience is that tied bodies (membership organisations) do not or are not perceived as providing competent and unbiased review of their members' performance
BPACT has been set up so that it is at arms length from both professional bodies and individual practitioners to ensure that it can act in the best interests of the public. The National Professional Engineers Board has been set up in a similar manner and a recent review by the ACCC has confirmed this fact. Likewise the NSW Government has authorised the Institution of Engineers Australia (Engineers Australia), as an Accreditation Body under the NSW EP&A Act to accredit qualified persons to provide building and subdivision certification.
The competence of practitioners will be independently assessed against national competencies prior to practitioners applying to BPACT Ltd for accreditation.
The performance of practitioners will be judged against a publicly available Code of Professional Conduct and Rules for Building Practitioners and reviewed by independent auditors as required in the Ministerial Guidelines."

Letter from the applicant to the Director of Building Control dated 27 April 2004:
"Mr R Pearce
Director of Building Control
Dear Robert
BPACT APPLICATION TO BECOME AN AUTHORISED BODY
UNDER THE BUILDING ACT 2000
The purpose of this letter is to follow up on the two issues you raised at our meeting with you and John Dowling from Minister Green's office on 22 April 2004.
1 Perception of 'closed shop' regulation

We understand the current political sensitivity in relation to industry bodies 'self regulating' and acknowledge that in some instances, eg the legal profession, outcomes may have been less than optimal from customers' perspective.
We do not believe that this will be an issue in relation to BPACT operating as an Authorised body, in large part because the government has wisely been very clear on how accreditation bodies must be set up and operate. BPACT has been set up as an independent not-for-profit company drawing on expertise from senior industry representatives. Of its five directors, it is likely that only one will seek accreditation as a building practitioner.
The requirements for clear and transparent process will alleviate any real concern that consumers may have. BPACT's Code of Conduct will be publicly available on a website for both consumers and practitioners. This code is not like a traditional code of ethics, it sets out in clear terminology the proper standards for the conduct and level of accountability that clients can expect from practitioners. There will be a need for some consumer education in this regard and BPACT's plans are already in place to address this issue will be initiated as soon as our application is formally approved.
2 Why can't BPACT and TCC work together?

As discussed at our meeting, BPACT is aimed at the academically qualified professional end of the building industry (primarily engineers and architects) where there are already stringent requirements in place for professional accreditation through the National Professional Engineering Register and the Board of Architects of Tasmania. In consideration of a single accreditation body we became very concerned when it became apparent that the stringent accreditation and transitional arrangements that we strongly support became very much 'watered down' in order to satisfy other parts of the industry.
To become registered, engineers and architects are required to complete a four or five year university degree, or equivalent, followed by at least two/three years of documented practical experience which is assessed against nationally accepted competence standards and a peer review including a face to face interview.
Given that professionals are required to go through stringent requirements we do not believe that they should be subsidising, through higher fees, the costs to manage issues within other sectors of the industry.
Timing is obviously of the essence, with the 1 July 2004 implementation date rapidly approaching. We appreciate your acknowledgement that the delays in addressing our application, predominantly due to reassignment of political responsibilities, have been outside BPACT's control and that in the interests of fairness and equity a decision on our application needs to be finalised very soon or alternatively the implementation date further delayed.
We look forward to meeting with Minister Green on Monday 3 May 2004 to personally discuss any issues he may have in regard to our Application.
Yours sincerely
Geoff Harper
BPACT Ltd"

Letter from the applicant to the Minister dated 4 May 2004:
"Hon Bryan Green MHA
Minister for Infrastructure, Energy & Resources
Dear Minister
BPACT APPLICATION TO BECOME AN AUTHORISED BODY
UNDER THE BUILDING ACT 2000
Thank you for the opportunity to meet with you on Monday.
We believe that it is in the public interest for you to approve our application to become an Authorised Body as our accreditation system is based on Nationally accepted competency standards and processes.
BPACT's company objective, as outlined in our application, is to provide an accreditation system for professional building practitioners in Tasmania at a minimal cost to the professional and therefore the community.
With regards to your concern of perceived conflicts of interest, BPACT is an independently incorporated not-for-profit body and its only members are its directors. Only one of its initial directors is likely to be an accredited building practitioner. The directors have a wide range of skills and experience including those of an: engineer, company director, architect, lawyer, accountant, arbitrator, tax agent, registered company auditor, teacher, association manager and insurance agent.
Our Code of Professional Conduct and Rules for Building Practitioners clearly sets out the standards for practice expected of practitioners accredited by BPACT. The document will be publicly available to enable everyone to be aware of the standards required by an accredited professional building practitioner. These will be used for the basis for audit, complaints and investigations to ensure a fair, open, consistent and transparent approach.
As set out in our application, the Department of Consumer Affairs is prepared to provide a complaints handling system to BPACT. We undertake to forward all complaints to the Department of Office of Consumer Affairs for investigation, other than those complaints that are vexatious, frivolous, misconceived or lacking in substance. This will ensure there is no conflict of interest (real or perceived) in handling complaints.
At our meeting you also asked whether we were aware of any instances where there was more than one body accrediting the same groups of practitioner. In NSW there is more than one body authorised to accredit building certifiers under their Environmental Planning & Assessment Act.
Your commitment to provide us with the outcome of your deliberations by Wednesday 13 May 2004 is appreciated.
Yours sincerely
Geoff Harper
BPACT Ltd"

Letter from the Minister to the applicant dated 13 May 2004:
Mr Geoff Harper
Director
Building Professions Accreditation Corporation Tasmania Ltd
Dear Mr Harper
I refer to my meeting with you and Mr Bevan on Monday 3 May 2004 and the subsequent correspondence to me dated 4 May 2004.
After due consideration of your application, I regret to inform you that I am not convinced that it is in the overall public interest for me to authorise the Building Professions Accreditation Corporation Tasmania Ltd as an authorised body under the Building Act 2000.
I thank you for your interest, and the time and effort taken in the preparation of your application.
Yours sincerely
Bryan Green MHA
MINISTER"

Letter from the applicant to the Minister dated 17 May 2004:
Hon Bryan Green MHA
Minister for Infrastructure, Energy
&: Resources
Dear Minister,
BPACT Application to Become an Authorised Body under the Building Act 2000

I refer to your letter of 13 May 2004, in which you declined authorisation of BPACT under section 20 of the Building Act 2000, on the grounds of 'public interest'.
In reference to your decision, BPACT hereby requests a complete and detailed statement of reasons pursuant to section 29 of the Judicial Review Act 2000 including, but not exclusively, the scope of the 'public interest' requirement.
Your response within 14 days would be appreciated considering the date for the implementation of the Act is 1 July 2004.
Yours faithfully,
Geoff Harper
Director"

Letter from the Minister to the applicant dated 15 June 2004:
"Mr Geoff Harper
Director
Building Professions Accreditation Corporation Tasmania Ltd
Dear Mr Harper
I refer to your letter received at my office on 19 May 2004 requesting a statement of reasons pursuant to section 29 of the Judicial Review Act 2000 relating to the decision notified in my letter to you dated 13 May 2004.
I confirm my previous advice that I am satisfied of each of the matters specified in section 20 of the Building Act 2000. I am thus empowered to grant the application and the question for me is whether I should exercise that power. I have determined that I should not so for the following reasons, which are to be read in conjunction with my previous correspondence to you on this issue.
Lack of Independence of BPACT
BPACT'S Board members are all present or past office bearers of associations whose members would be seeking accreditation by BPACT. Whilst it is true that professional expertise will be required in order to resolve technical complaints and disputes, there is a modern trend, that in my view is desirable, to include non-affiliated consumer representation in bodies such as this so that non-technical issues are appropriately addressed.
There are a number of salient issues raised in the May 2001 National Competition Council, Staff Discussion Paper, Reforming the Regulation of Professions.
'However, self-regulatory processes have a number of limitations that mean that they are unlikely to be relied upon solely where significant potential harms arise from poor professional practice. In particular, professional associations frequently adopt the dual roles of disciplinary body and advocate of the interests of the profession (that is, acting as professional trade unions). These roles necessarily hold the potential for conflict, with the result that professional associations' ability to act as standards setting and disciplinary bodies tends to be compromised.
In addition, self-regulatory schemes are usually wholly internal to the profession, with no significant involvement of non-practitioners in the processes in most cases. Thus, the operations of the regulatory system are based solely on the perspectives of members of the profession and, hence, are unlikely to reflect fully the wider interests of its customers and of the general public.
Professional standards may therefore tend to favour the rights of practitioners unduly and provide less than optimal levels of consumer protection. The problems of lack of independence are likely to be of particular concern in relation to dispute resolution, with fellow practitioners perceived as being likely to judge their peers' actions sympathetically in most cases.
Problems of maintaining public confidence are also possible where processes lack transparency and accountability. Self-regulatory systems tend to score poorly on these criteria, again reflecting the tendency for a collegiate view to be taken, although some notable successes have been achieved.
Finally, the limited ability of self-regulatory bodies to apply meaningful sanctions for poor or unethical practice can tend to undermine confidence that such practices will be effectively deterred.
These weaknesses of self-regulatory schemes mean that few professions are now entirely self-regulated. Arguably, a long-term trend in many countries has been for increasing levels of government involvement in co-regulatory schemes. This involvement seeks to preserve many of the positive features of self-regulation, while adding some statutory backing in order to extend the 'reach' of regulation, and to increase credibility by adding an element of independence from the profession.'

With respect to representation the NCC report went on to say:
'A common feature of professional regulatory bodies until recent times has been their domination by members of the regulated profession. In many cases, regulatory bodies have been comprised solely of members of the profession, while in other cases there has been only token representation from other areas, including provision for Ministers to appoint one or two non-professionals, or requirements for a consumer representative.
More recently, new or revised professional regulation statutes have tended to broaden the membership of regulatory bodies. These reconstituted bodies tend to include consumer representation and, in some instances lawyers, with the intention of ensuring that the regulatory body follows appropriate processes in discharging its responsibilities. Notably, however, representation from outside the profession being regulated has generally remained limited. In virtually all cases, non-professionals have formed a small minority of the members of regulatory bodies.
It is not possible to specify in detail a range of interests that should be represented on all professional regulatory bodies, since specific circumstances and requirements will differ. However, a number of general requirements can be identified.
First, the regulatory body should be constituted in such a way as to ensure that a range of relevant interests is represented on it and to ensure that it is adequately equipped to carry out all its tasks. This means that members should be drawn from a range of backgrounds. Second, while it is clear that the regulatory body requires the expertise of members of the profession, its composition should avoid the possibility of professional interests predominating. Inclusion of a minority of members from the profession is sufficient to ensure access to relevant expertise. Having a majority of members of the profession increases the scope for professional dominance of decision-making.
Third, given that consumer protection constitutes the largest part of the justification for professional regulation in most circumstances, there should be strong consumer representation on regulatory bodies.'

The BPACT Board members are as follows:
•     Chair of Board of Architects
•     President, Royal Australian Institute of Architects
•     Chapter Manager, Royal Australian Institute of Architects
•     Registrar, Board of Architects & Director of Engineers Australia and
•     Past President, Engineers Australia

I am of the view that this mix of office bearers does not achieve the objectives of enhancing consumer protection and is therefore not in the public interest.
During the Parliamentary debate on the Bill similar concerns were raised and the following extract acts as an overview.
Mr Hidding 'If it (accreditation) lies with the registered builders, you are not going to build in one scrap of protection more for the consumer from those people because you are actually elevating those people to a position of quite some privilege once they are accredited.'
'But quite seriously there are such fundamental problems in this with people accrediting, inspecting, checking all the way through, there is this incestuous arrangement that will not engender any trust by the ordinary consumer in the building industry in Tasmania.'

In total there are forty pages of Hansard containing concerns expressed by Mr Hidding calling for an independent arrangement to accredit the building industry. I agree in substance with those concerns.
I cannot accept that simply by the act of incorporation all BPACT Director affiliations are no longer relevant.
Lack of Transparency in BPACT Scheme processes.
Under the submitted scheme the decision-making quorum is any 3 of the Directors. It is quite conceivable that only Directors who are associated with a profession may review and make decisions relative to a practitioner in that profession; hence the level of transparency is not as it should be.
Under the Company Rules BPACT can delegate its functions to any sub-committee. The Building Practitioners Management Sub-Committee draws its membership from 7 professional associations and 2 consumer areas however the Decisions Review and Complaints Sub-Committees each comprise of (at least) 3 members nominated by BPACT. Whilst it is true that the membership of the Complaints Committee requires there to be 1 non-professional, association with the professional organisations is not precluded.
BPACT can dismiss any complaint without investigation if it considers it to be vexatious or frivolous. No guidance is provided in either the scheme or the Company Rules as to how BPACT would determine what was considered to be vexatious or frivolous.
BPACT can investigate complaints in it's own right and can determine the outcome of any complaint.
At Section 9 of the BPACT Scheme reference is made to the Office of Consumer Affairs and Fair Trading providing assistance investigations. It is not properly a function of the Office of Consumer Affairs and Fair Trading to undertake investigative functions for BPACT. The functions of that Office are statutory ones, and it is no part of those functions to assist private bodies with their enquiries. That is the function of those bodies to undertake.
Relative to any matter under consideration, the Company Rules allow any Director of BPACT, providing they disclose a conflict of interest, to vote on the matter and retain benefits relating to that matter.
Viability of 2 Authorised Bodies competing for accreditation clients
The Building Act contemplates that multiple Authorised Bodies could be appointed. There was an expectation when the Bill was drafted that individual representative bodies may seek to accredit their own members. It was not contemplated that competition would be establish between Authorised Bodies seeking to accredit the same class of building practitioner.
Although it may be argued that competition would lower accreditation charges and increase the standard of service provided by the competing Authorised Bodies, such arrangements must be predicated on a much larger number of practitioners seeking accreditation that we have in Tasmania.
Competition in a small market has the potential to render the existing (or both) Authorised Body(s) financially unviable. This is a particularly relevant consideration as I have been advised that if I were to authorise the BPACT application, then the Australian Institute of Building Surveyors would seek to become an Authorised Body to accredit their members. Builder associations have conveyed a similar sentiment.
Yours sincerely
Bryan Green MHA
MINISTER"

In his letter to the applicant of 15 June 2004, the Minister confirmed that with respect to the applicant he was satisfied as to each of the matters detailed in s20(1). Consistent with s20(1)(b), the Minister was accordingly satisfied that the statement provided by the applicant pursuant to s19(2) demonstrated that the applicant was suitable to be an authorised body. The statement detailed the applicant's scheme, s19(2)(a)(i), and specified the representation on proposed committees of the applicant, s19(2)(b). Consistent with s20(1)(c), the Minister must have been satisfied that the applicant's scheme met the guidelines he had approved. The guidelines required that the scheme include details of any rules of the applicant and details of any committees to be established. As to committees, the guidelines state that they should have appropriate representation. In his letter the Minister also detailed his reasons for refusing the applicant's application and made observations to the effect that:

·The mix of office bearers on the applicant's Board did not achieve the objective of enhancing consumer protection and was therefore not in the public interest.
·It was desirable to include non-affiliated consumer representation on accreditation bodies so that non-technical issues were appropriately addressed.
·Under the applicant's scheme it was conceivable that only directors associated with a particular profession could review and make decisions in relation to a practitioner in that profession and hence the level of transparency was not as it should be.
·Under the applicant's rules, the complaint committee could be constituted by members of the same profession as that of the member who was the subject of the complaint.
·The reference in the applicant's scheme to the Office of Consumer Affairs and Fair Trading providing assistance in relation to investigations was not appropriate as this was not a function of that statutory body.
·Under the applicant's rules, a director who disclosed a conflict of interest was still entitled to vote in relation to the relevant matter.

In support of its contention, the applicant submits that observations such as the above amount to an impermissible re-consideration by the Minister of matters as to which he had expressed satisfaction for the purposes of s20(1). The applicant in effect submits that as the Minister was satisfied as to those matters, it was not open to him to review them for the purpose of the exercise of his discretion to approve its application. These submissions are untenable and find no support in the legislation. Put another way, they amount to a contention that the Minister must exercise his discretion on the basis of matters other than those detailed in s20(1). Once it is accepted that the Minister has a discretion pursuant to s20(1), there can be no justification for so confining the discretion. There is good reason for the Minister in the exercise of his discretion, to pay regard to the degree of his satisfaction in relation to a body's compliance with s20(1). Insofar as that provision specifies the requirements that must be satisfied to be eligible for approval as an accrediting body, they are minimal requirements. Plainly the Minister would be more likely to exercise his discretion in favour of a body as to which his degree of satisfaction was high, and less likely to exercise his discretion in favour of a body as to which his degree of satisfaction was low, for example, a body that barely satisfied the requirements.

Unreasonableness

The next contention advanced by the applicant is that the Minister's rejection of its application was "inherently unreasonable, in the sense intended by Associated Provincial Picture Houses, Ld v Wednesbury Corporation [1948] 1 KB 223 and encapsulated by the JRA, ss17(2)(e) and 20(g)". Section 17(2)(e) provides that a ground of review is "that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made". Section 20(g) provides that an improper exercise of a power is taken to include "an exercise of a power that is so unreasonable that no reasonable person could so exercise the power".

As recognised in the proposition advanced by the applicant, statutory provisions such as s20(g) are intended to adopt the principles developed by the common law in relation to the judicial review of administrative decisions alleged to be unreasonable; see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 167 and more generally Kioa & Ors v West & Anor (1985) 159 CLR 550. A helpful discussion of the common law principles is contained in Wednesbury (supra) where Lord Green MR at 231 – 233 emphasises that the court's role is not to decide what is reasonable or unreasonable, its task being to decide whether a decision which is prima facie within the power of the decision-maker is one that no reasonable decision–maker, acting within the four corners of the decision-maker's jurisdiction, could have made. At 230 he said:

"It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere."

When assessing whether an exercise of power is unreasonable for the purposes of s20(g), the following passage from In Re W (An Infant) [1971] AC 682, Lord Hailsham, at 700, should be borne in mind:
"Not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable. There is a band of decisions within which no court should seek to replace the individual's judgment with his own."

See also Prasad (supra) at 167 and Willarra Pty Ltd v McVeigh (1984) 54 ALR 65 at 107.

Of more general assistance in relation to the role of a court reviewing an administrative decision is the decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In that case, after quoting a passage from the decision on appeal in which the Full Court had said that the reasons of the decision-maker under review were entitled to a beneficial construction, Brennan CJ, Toohey, McHugh and Gummow JJ, at 271 – 272, said:

"When the Full Court referred to 'beneficial construction', it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (1993) 43 FCR 280. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker. The Court continued: 'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error'.
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin 1990) 170 CLR 1 at 35-36:
'The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

The first ground on which the applicant contends that the Minister's decision was unreasonable is that as the Minister was satisfied that the statement provided by the applicant pursuant to the Building Act, s19(2), demonstrated that the applicant was suitable to be an authorised body, s20(1)(b), it was unreasonable to introduce "issues to demonstrate that it was not suitable".

In his letter of 23 March 2004, the Minister, in summary said that authorised bodies should function in a manner that ensured independence from interest groups and operate in a manner that is fair, open and transparent. He said he needed to be convinced that it was in the public interest that the applicant be approved as an authorised body in addition to the Tasmanian Compliance Corporation which had already been authorised and he listed 11 potential problems that could result from more than one body being so authorised. He noted that a memorandum of understanding signed by various building industry associations that included Engineers Australia and the Board of Architects Tasmania was unanimous in the view that a single accrediting body, rather than a number of disparate accrediting bodies would enable an efficient and more consistent application of the Building Act and would result in much greater public benefit. The Minister said he was inclined to agree with that view.

In his letter of 15 June 2004 providing reasons for rejecting the applicant's application, the Minister said that his reasons should be read in conjunction with his previous correspondence and addressed several additional matters, some of which have already been mentioned in par10 of these reasons.

What emerges from the Minister's correspondence is that he was not persuaded that it was in the public interest that he should authorise a second body to accredit building practitioners in the categories the applicant sought to cover. Whilst the Minister considered a number of matters that were related to the appropriateness of accrediting the applicant, he did not, as this ground of the applicant's contention implies, contradict his acceptance that the applicant was suitable to be an authorised body by addressing matters that were relevant to the degree of the applicant's suitability.

The second ground on which the applicant contends that the decision was unreasonable is that a number of matters "indicate the irrationality of the Minister's decision". Matters advanced in support of this ground include:

(1)That the Minister's view that it was better to authorise only one accrediting body cut across the legislative scheme of the Building Act.
(2)That the Minister's use of public interest as a ground for rejecting the application had no basis as there is nothing in the legislation that separately requires the Minister to consider the public interest.
(3)That the Minister's use of the National Competition Council ("NCC") staff discussion paper was inherently irrational because:
(i) the Minister did not take into account that the NCC had not adopted it; and
(ii) the statements referred to by the Minister were taken out of context and no attempt was made to justify the type of regulation that the Minister sought to adopt.
(4)That the Minister's views concerning the viability of the approved authorised body was against the general requirements for a better competitive environment.
(5)The Minister's reliance on comments made by and said by the Leader of the Opposition.
(6)The Minister's view that his authorisation of the applicant would lead to an application for approval by the Institute of Building Surveyors. This was entirely speculative and baseless and is not established by the evidence. However, even if proved, it involves an acceptance of the proposition that the applicant's application was not being dealt with on its merits, but rather by reference to facts that were not referable to its suitability, competence or expertise.

Section 20(1) expressly provides that the Minister may authorise more than one body to accredit a specified category of building practitioner. I cannot find in that provision or any of the balance of the legislation a scheme of the nature of that which the applicant propounds, that is, a scheme that favours more than one body being accredited. In this regard, in my view, the Minister's decision is unfettered and it was open to him to conclude that it was preferable to authorise one body only. He expressed that preference in the context of the public interest. The applicant submits that the Minister should not have had regard to the public interest as the legislation did not require him to do so. I take a contrary view. The Act contains provisions referable to the construction and maintenance of buildings that are redolent of a concern for the interests of the public. I am far from persuaded that by reason of any of the first two matters relied upon by the applicant it can be said that the Minister's decision was so unreasonable that no reasonable person could have so decided. The same goes for the other matters relied upon by the applicant: the Minister's reference to the NCC staff discussion paper; his views concerning the viability of the already approved authorised body; his reliance on comments made in Hansard by the Leader of the Opposition; and the Minister's view that authorisation of the applicant would lead to an application for approval by the Institute of Building Surveyors. In broad terms, the Minister referred to these matters in order to inform the applicant of matters he had considered in the course of reaching his decision. None of these matters provide any basis for concluding that the Minister's decision was so unreasonable that no reasonable person could have so decided.

Failing to take account of relevant considerations

The applicant contends that the Minister's decision was an improper exercise of power, JRA s17(2)(e), as he failed to take into account the following relevant considerations, s20(b):

(a)That in accrediting building professionals, the applicant was required to act according to law, including the Building Act, s26.
(b)That the process of accreditation of building professionals is appealable to the Building Appeals Board under s42(1), and review by a magistrate under s46(1).
(c)The criteria provided by s20 as a matter relevant to the exercise of his discretion, as distinct from a finding of jurisdictional fact.
(d)That an approval of the application could be made subject to any conditions considered appropriate under s20(3).
(e)That it was possible to authorise more than one body to accredit the same category of building practitioner.

For the ground of failing to take into account a relevant consideration to be made out, it is necessary to establish that the decision-maker failed to take into account a consideration which the decision-maker was bound to take into account. The factors a decision-maker is bound to consider are determined by construing the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the Court to determine whether those enumerated factors are exhaustive or merely inclusive; see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985 – 1986) 162 CLR 24, Mason J at 39. In this case it is plain that compliance with s20(1) was a consideration that the Minister was bound to take into account. This matter is raised in consideration (c) above. It is unnecessary to explore whether the Minister was also bound to take into account any of the other considerations enumerated by the applicant, as for the reasons that follow I do not accept that Minister did not pay regard to them. As to consideration (c), I have already found the degree to which the applicant satisfied the requirements of s20(1) was relevant to the exercise of the Minister's discretion, and in my view it is plainly apparent from his correspondence that he took that into account. As to consideration (e), it is also plain that the Minister recognised that s20(2) contemplated that it was possible to authorise more than one body to accredit the same category of building practitioner. In the second paragraph of the Minister's letter of 23 March 2004, he expressly referred to that power when explaining that he was not obliged to approve the applicant's application. The detailed attention the Minister gave to the application demonstrates that he was well aware that he could approve it, even though the Tasmanian Compliance Corporation had already been approved as an accreditation authority. The failure of the Minister to expressly advert to considerations (a), (b) and (d) does not mean that he did not pay regard to them. In this regard I adopt the approach taken to an appeal against sentence when the sentencer has not expressly adverted to some relevant matters; see Reynolds v R A46/1974, Green CJ and Chambers J at 1. In the absence of any indication to the contrary, I conclude that the Minister was well aware that the applicant would be required to act according to the law and that he was aware of the provisions of the Act as to: his right to approve applications subject to conditions; appeals; and reviews.

Whilst what I have said is sufficient to dispose of this contention, it is appropriate to set out the following passage from Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 which deals with the ground of failing to take account of relevant considerations contained in the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJRA"), s5(1) and (2)(b), which are in similar terms to the JRA, ss17(2)(e) and 20(b). At 374 – 375, Deane J said:

"As has been seen, a failure to take a relevant consideration into account in the exercise of a power is, under s5(1) and s5(2)(b), a permissible ground for attacking a decision pursuant to s5 of the Administrative Decisions (Judicial Review) Act, 1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. In this regard, I consider that the following comments of the United Kingdom Court of Appeal (Megaw, James and Geoffrey Lane LJJ) in Elliott v Southwark London Borough Council [1976] 2 All ER 781; [1976] 1 WLR 499 at 507), in relation to a local authority, are appropriate in respect of the recommendations of the Committee and the decision of the Minister in the present case: 'It is clear that the matters which the local authority should consider … vary from case to case. It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions'."

This passage is also relevant to the contention I now turn to.

Took account of irrelevant considerations

The applicant contends that the Minister's decision was an improper exercise of power, JRA, s17(2)(e), as he took into account irrelevant considerations, s20(b).

As to relevance, in a case such as the present a problem lies in ascertaining what are the proper limits of the discretion. In R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 the High Court said, at 49 – 50:

"In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view', to use the words of Dixon J in Browning (1977) 74 CLR, at p 505 . In that case his Honour went on to remark, (as he had done earlier in Swan Hill Corporation v Bradbury (1937) 56 CLR 746, at p 758), 'on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power'.
The applicant therefore shoulders a very heavy, indeed an impossible, burden when it seeks to show in this case that the Tribunal has no discretion to refuse consent except on the ground that the transfer will bring about a contravention of the Act. This comes very close to saying that the Tribunal has no discretion to exercise at all."

The applicant has detailed a multitude of matters which it asserts are irrelevant but were considered by the Minister. I will not list them. It is inevitable that in the course of any decision-making process, matters that ultimately turn out to be of little or no relevance are considered by the decision-maker. The consideration of such matters does not establish that the decision is an improper exercise of power. Such a conclusion can only be reached if it can be established that an irrelevant consideration was taken into account and that it has played a material part in the decision-maker's determination. I am not persuaded that this can be said of any of the matters detailed by the applicant.

Improper purpose

The applicant contends that the Minister's decision was an improper exercise of power, JRA, s17(2)(c), for a purpose other than the purpose for which the power was conferred, s20(c), the ulterior objectives being:

(a)for the purpose of preventing or minimising the potential for the Australian Institute of Building Surveyors and other builder associations to apply for authorisation; and
(b)to prevent the existing Authorised Body from becoming financially unviable.

Difficult questions can arise as to what must be established in order to show than an identified proper purpose is sufficient to render the exercise of a power beyond power. In Warringah Shire Council and Others v Pittwater Provisional Council (1992) 26 NSWLR 491, at 509, Kirby P said:

"In the nature of human affairs, it is rare that individuals, still less corporations such as local government authorities, act as they do exclusively for a particular purpose. It is of the nature of human motivation (and still more, if it can be ascertained, the motivation of corporations governed and directed by numerous individuals) that their purposes are complex and multifarious. From this truism a controversy has arisen as to the extent to which an illicit, irrelevant or impermissible purpose for the exercise of statutory powers will render that exercise beyond power, with the serious consequences that follow. In England, the courts have adopted a test which requires the complainant to prove that the 'achievement of the irrelevant, illicit or unlawful purpose was the dominant purpose of the donee of statutory power in doing what it did'. This stringent test has been praised by Professor Wade. See H W R Wade, Administrative Law, 6th ed, (1988) at 439ff. In earlier times a 'sole test' Sydney Municipal Council v Campbell) had been adopted. But this was clearly too stringent. On the other hand, Professor JM Evans, in the 4th edition of SA de Smith's Judicial Review of Administrative Action (1980) at 329, regarded the English test as too stringent: presenting the courts with a 'legal porcupine' which required them to embark upon speculation for which they are ill equipped. In Australia, a different test has been adopted which makes it more difficult to establish the improper purpose ground of review. In Thompson v Randwick Municipal Council, the High Court held that an abuse of power occurs if the purpose of the administrator is an improper one and 'a substantial one' in the sense that no attempt would have been made to exercise the power if it had not been for that purpose. The test has been criticised as internally contradictory: see, eg, M Allars, Introduction to Australian Administrative Law (1990) at 178. It has been suggested that, in Samrein Pty Limited v Metropolitan Water Sewerage and Drainage Board the High Court used language more reminiscent of the English test. But whatever the test, it is difficult to establish an improper purpose."

Has the applicant established that the Minister's decision to reject its application was influenced by an improper purpose? The prime purpose of the Building Act is the regulation of those involved in the construction and maintenance of buildings. To that end provision is made for an entity, the Minister, to authorise a body or bodies to accredit building practitioners and to withdraw that authority. A body so authorised is also required by s22(a) to monitor compliance by accredited building practitioners with the Act, Pt4. That Part: contains provisions requiring building practitioners to obtain accreditation, s23(1); obliges an authorised body to audit the work of building practitioners it has accredited, s30(1) and investigate professional misconduct or unsatisfactory professional conduct it finds in the course of an audit, s33(3); and provides for the making of complaints of professional misconduct and unprofessional conduct to an authorised body about a building practitioner it has accredited and empowers that body to investigate and deal with the complaint and impose consequential orders, ss32 – 41. The legislation envisages that an authorised body or authorised bodies will play a significant role in the regulation of building practitioners. Insofar as the Minister is given a discretion as to the authorisation of bodies that satisfy the requirements of s20(1), it can be seen that the Minister should predominantly be influenced in the exercise of that discretion by matters that bear on the appropriate regulation of building practitioners, keeping in mind the concerns of all those who have an interest in that objective. As I have said, the primary reason for the Minister's refusal to allow the applicant to be an authorised body was the fact that another body had already been so authorised and his concern about adverse consequences that could flow from more than one body being empowered to accredit the same category of building practitioner. This is a legitimate concern which is consistent with the purpose of maintaining a sound system for the regulation of building practitioners. In his letter of 23 March 2004, the concerns noted by the Minister in relation to authorising more than one body to accredit the same category of building practitioner include: "Increased consumer cost due to reduced viability of current Authorised Body". In his letter of 15 June 2004, the Minister said:

"Although it may be argued that competition would lower accreditation charges and increase the standard of service provided by the competing Authorised Bodies, such arrangements must be predicated on a much larger number of practitioners seeking accreditation that we have in Tasmania.
Competition in a small market has the potential to render the existing (or both) Authorised Body(s) financially unviable. This is a particularly relevant consideration as I have been advised that if I were to authorise the BPACT application, then the Australian Institute of Building Surveyors would seek to become an Authorised Body to accredit their members. Builder associations have conveyed a similar sentiment."

These comments of the Minister are expressly directed to his concern about detrimental consequences that might flow from approving more than one accredited body, a concern that is consistent with the need to maintain a sound system for regulating building practitioners in accordance with the objectives of the Act.

I am not satisfied that the Minister's expression of concern about the viability of the already authorised body and the possibility that the Australian Institute of Building Surveyors and other building associations might apply to be authorised bodies indicates, let alone establishes, that an improper purpose influenced his refusal to approve the applicant's application.

No evidence

The applicant contends that there was no evidence or other material to justify the making of the decision, JRA, s17(2)(h). In its written submissions, the applicant revised this contention to a submission that the Minister had no evidence on which to base his findings concerning:

(a)competition in the market, or the size or viability of the market;
(b)the financial viability of competing authorised bodies;
(c)other bodies seeking authorisation.

The JRA, s21, provides:

"The ground mentioned in section 17(2)(h) … 18(2)(h) is taken not to be made out ¾
(a)unless ¾
(i)the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and
(ii)there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or

(b)unless ¾
(i)the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and
(ii)the fact did not or does not exist."

Plainly s21(a) does not apply so it falls to the applicant to establish that the decision was based on the existence of a particular fact and the fact did not or does not exist. To establish that the decision was based on a particular fact involves establishing that the particular fact was critical to the making of the decision, Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321, Mason CJ at 357 – 358.

The JRA, ss17(2)(h) and 21(b) are in similar terms to the ADJRA, ss5(1)(h) and 3(b). As to the latter provisions, Black CJ, agreed with by Spender and Gummow JJ said in Re Curragh Queensland Minding Limited (1992) 34 FCA 212, par36:

"It remains to consider the concluding words of s5(3)(b): 'and that fact did not exist'. Since the ground in s5(1)(h) is a 'no evidence' ground, and since s5(3)(b) requires, in that context, that it be established that the person who made the decision based the decision on the existence of a particular fact as a requirement for making out the ground, the concluding words 'and that fact did not exist' must be taken to impose an additional requirement. In Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 519-521 Wilcox J examined the history and meaning of s5(3)(b). His Honour observed that whilst it might have been thought appropriate to provide for an administrative decision to be struck down where the decision was based upon the assumption of a particular fact of which the decision-maker had no evidence, a deliberate decision was made in drafting the ADJR Act to restrict more tightly the operation of the ground. By reference to the background to the provision his Honour considered that it was understandable that, when Parliament turned to non-jurisdictional findings of fact in s5(3)(b), it required the applicant for review to show more than that there was no evidence before the decision-maker of the fact found, or assumed, as the basis of the decision. The applicant was required to negative the fact and, as his Honour noted, this may constitute a heavy burden, especially where the facts are obscure. But the language of s5(3)(b) shows that its concluding words do impose an additional requirement and the history of the section, discussed by Wilcox J in Television Capricornia, tends to confirm that this is so.

Accepting for present purposes that the Minister made findings to the effect of those that are the subject of the applicant's contention that can be categorised as decisions on particular facts, the applicant has not negatived those facts. Whilst that is sufficient to dispose of this contention, I will, deal with portions of the Minister's letters that relate to the findings in contention; they have already been set out in par28 of these reasons. Each of the findings in contention relates to the issue of viability. As to the Minister's comment to the effect that competition in a small market may render more than one authorised body financially unviable, he said that this was "a particularly relevant consideration" as he had been advised that other bodies may also seek authorisation. This statement demonstrates no more than that the Minister's comment was of particular relevance to the issue of viability. It does not show that the issue of viability was critical to the ultimate decision, that is, the Minister's rejection of the applicant's application. Viability was only one of the 11 concerns the Minister listed in his letter of 23 March in relation to authorising more than one accrediting body. Most of the other concerns he listed are more immediate and substantial than his forecast in relation to viability. I am not persuaded that the Minister's views on viability were critical to his ultimate decision. In these circumstances the no evidence contention also fails because the decisions relied upon to found the contention are not the ultimate decision in issue and it has not been established that they are critical to that decision.

Natural justice

The final contention advanced by the applicant is that a breach of the rules of natural justice happened relating to the making of the decision, JRA, s17(2)(a). The applicant has detailed five grounds in support of this contention. I will set out each ground before dealing with it:

The JRA, ss17(1) and (2)(a) and 18(1) and (2)(a) relate to natural justice. The JRA, s17(1) and (2)(a), and the ADJRA, s5(1)(a), similarly provide that:

"A person who is aggrieved by a decision to which this Act applies … may apply to the [Court] for an order of review relating to the decision … on any of the following grounds:
(a)that a breach of the rules of natural justice – happened relating to [JRA] – occurred in connection with [ADJRA] – the making of the decision."

The similarities are much the same between the JRA, s18(1) and (2)(a), and the ADJRA, s6(1)(a), which cover conduct relating to the making of a decision.

Whilst the parties approached the applicant's natural justice contention on the assumption that the rules of natural justice apply to the Minister's decision, I note that the JRA, s17(2)(a), of itself, provides no basis for that assumption. In Kioa & Ors v West & Anor (supra) the High Court considered the effect of the ADJRA, and in particular, s5(1)(a) of that Act and confirmed that it imposed no obligation that the rules of natural justice should be observed in relation to every decision to which that Act applied; see Gibbs CJ at 566 – 567, Mason J at 576 – 577, Wilson J at 594 and Deane J at 630. The views expressed by the members of the court in relation to the ADJRA are equally applicable to the JRA, the former Act being the obvious source of many of the provisions in the latter Act. I accordingly approach this matter with the following in mind. Broadly speaking the purpose of the JRA is to simplify and reform the procedure of judicial review, rather than change the substantive law; Gibbs CJ at 567, Mason J at 576 – 577 and Wilson J at 594. An assessment of whether the rules of natural justice apply to any particular decision is to be determined from a consideration of the provisions of the enactment that bestows the decision-making power and the common law; Gibbs CJ at 560 – 566, Mason J at 576 – 577 and 584 and Brennan J at 609 and 611. The rules of natural justice are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise, that is, procedural fairness, a term that conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case; Brennan J at 622 and Mason J at 585.

Consistent with the parties' assumption, I am satisfied that the rules of natural justice apply to the decision in question. However, the applicant's contention in relation to this ground appears to have been drawn in the expectation that the stringent requirements that are commonly imposed on a decision-maker in respect of disciplinary proceedings where the law requires that the subject of the proceedings should be given notice of what is alleged and the findings which might be made, apply to the decision of the Minister. As to those stringent requirements see Yung v Adams (1997) 150 ALR 436. I am not satisfied that the demands of fairness impose such a broad and onerous burden on the Minister in relation to the procedure to be followed in the making of his decisions. Paraphrasing the words of Brennan J in Kioa at 612 and 615: the principles of natural justice have a flexible quality which, chameleon-like, evoke a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power; in some circumstances the contents of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred.

I turn to the issue of whether the procedures adopted by the Minister in relation to his decision were unfair and amounted to a breach of natural justice.

Grounds (a) and (b)

(a)Having decided to take into account the modern trend to include non-affiliated consumer representation in accreditation bodies, the Minister failed to provide the applicant with any, or any sufficient opportunity to provide evidence or make submissions in relation to that issue.
(b)Having decided to take into account that the mix of the applicant's office bearers did not achieve the objectives of enhancing consumer protection and was therefore not in the public interest, the Minister failed to provide the applicant with any, or any sufficient opportunity to provide evidence or make submissions in relation to that issue.

The Guidelines for schemes for the accreditation of building practitioners approved by the Minister, pursuant to the Building Act, s20(5), included advice that committees dealing with matters such as accreditation, audits and complaints needed to have "appropriate external representation". In his letter of 23 March 2004, the Minister informed the applicant, "I … believe that Authorised Bodies need to function in a manner that ensures independence from interest groups and operate in a manner that is fair, open and transparent. This must be considered in the light of the rights and perceptions of Accredited Building Practitioners and consumers". In my view the applicant was given sufficient opportunity to address the desirability of including appropriate non-affiliated consumer representatives within its organisation and the appropriateness of the mix of its office bearers. The applicant responded to the Minister's letter by defending its structure as detailed under the last heading in the attachment to its letter to the Minister dated 8 April 2004. In explaining his decision in his letter of 15 June 2004, the Minister listed the members of the applicant's Board and observed: "I am of the view that this mix of office bearers does not achieve the objectives of enhancing consumer protection and is therefore not in the public interest." That observation was well within the ambit of the concerns about which the Minister had made the applicant aware. Failure to accord natural justice cannot be substantiated on the basis of grounds (a) and (b).

Ground (c)

(c)Having decided to take into account the size of the market for accreditation bodies and the potential effect on their financial viability, the Minister failed to provide the applicant with any, or any sufficient opportunity to provide evidence or make submissions in relation to that issue.

In his letter of 23 March 2004, the Minister expressly, albeit obliquely, raised the issue of viability when he identified one of the potential problems that arose from the authorisation of more than one accrediting body as being: "Increased consumer cost due to reduced viability of current Authorised Body". Plainly the size of the market was relevant to that concern. The applicant's response in relation to this issue is set out under the penultimate heading in the attachment to its letter to the Minister dated 8 April 2004. In brief the applicant said that competition was in the best interests of the community and that if competition reduced the viability of the existing Authorised Body, then it should review its pricing policy. In my view the applicant had adequate notice of the Minister's concerns about viability. Ground (c) cannot sustain a finding that the Minister failed to accord the applicant natural justice.

Grounds (d) and (e)

(d) The Minister failed to give the applicant any, or any sufficient opportunity to make submissions on the correct construction of the Building Act, s20(2).
(e) The Minister failed to provide the applicant with any, or any sufficient opportunity to provide evidence, or make submissions in relation to any conditions that might be imposed under the Building Act, s20(3).

The second and third paragraphs of the Minister's letter of 23 March 2004 provided the applicant with notice of the manner in which the Minister viewed his obligations under the Building Act, s20(2). Thereafter the applicant had ample opportunity to make submissions to the Minister in relation to a contrary construction of that provision. Similarly the applicant had ample opportunity to provide evidence or make submissions to the Minister in relation to conditions that he might impose under the Building Act, s20(3), but did not do so. These grounds provide no basis for a finding that the applicant was denied natural justice.

Ground (f)

(f)The Minister did not provide the applicant with an opportunity to respond to:
·   the NCC staff discussion paper;
·   his findings concerning the mix of office bearers;
·   his views concerning the size of the market, or the viability of the Tasmanian Compliance Corporation or his expectations of applications from other bodies.

As to the first dot point, I am unpersuaded that the dictates of procedural fairness required that the applicant be given an opportunity to comment on the NCC staff discussion paper. The Minister's reference to that paper in his letter of 15 June 2004 related to matters within the ambit of concerns that he had raised in his letter of 23 March 2004. The paper did not relate to the primary reason for the Minister's rejections of the application, his concern about authorising more than one accrediting body. The Minister's failure to afford the applicant an opportunity to comment on the paper did not amount to a denial of natural justice. The matters raised in the second and third dot points of this ground have been dealt with in my reasons in relation to grounds (a), (b) and (c).

The originating application is dismissed.