Hitchcock and Environment Protection Authority
[2011] AATA 117
•23 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 117
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4292
GENERAL ADMINISTRATIVE DIVISION ) Re PHILLIP HITCHCOCK Applicant
And
ENVIRONMENT PROTECTION AUTHORITY
Respondent
DECISION
Tribunal Senior Member J L Redfern Date 23 February 2011
Place Sydney
Decision The Tribunal does not have jurisdiction to review the decision of the Environment Protection Authority and, therefore, the application for an extension of time is refused ...............[sgd]...............................
J L Redfern
Senior Member
CATCHWORDS
JURISDICTION – Whether Tribunal has jurisdiction to review decision under Mutual Recognition Act 1992 (Cth) – decision to refuse renewal of accreditation – no right of review – extension of time not granted – no jurisdiction to review decision
Hempel and the Civil Aviation Safety Authority [2006] AATA 188
Administrative Appeals Tribunal Act 1975 (Cth) : s 25(1), 29(7)
Contaminated Land Management Act 1997 (NSW) : s 3(2), 52, 53, 56(1)
Environmental Protection Act 1970 (Vic)
Mutual Recognition Act 1992 (Cth) : s 3, 16, 17, 19, 20, 21, 22, 23, 34(1)
Australia, House of Representatives, Debates, 3 November 1992
Mutual Recognition Bill 1992, Explanatory Memorandum
REASONS FOR DECISION
23 February 2011 Senior Member J L Redfern BACKGROUND
1. Mr Hitchcock is an environmental auditor. In 2005 he was accredited under the Environmental Protection Act 1970 (Vic) (EP Act). In July 2005 he applied for registration as a site auditor, and in August 2005 he was granted registration as a site auditor in New South Wales by the New South Wales Environment Protection Authority (EPA). He also applied for, and was granted, registration in Western Australia and South Australia. He made his applications for registration under the Mutual Recognition Act 1992 (Cth) (MR Act).
2. Mr Hitchcock's accreditation was renewed in New South Wales for each year from 2006 to 2008. He applied for renewal in July 2009 but on 24 June 2010 received a letter from the EPA requesting him to “show cause” why his application for accreditation and renewal should not be refused. Mr Hitchcock’s application for renewal of accreditation was refused by the EPA on 6 August 2010.
3. On 27 October 2010 Mr Hitchcock applied to this Tribunal for a review of the decision of the EPA, having already applied for an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975 (AAT Act).
4. The EPA contends the Tribunal does not have jurisdiction to review the decision and opposes the extension of time application on this basis alone.
5. The matter before the Tribunal is whether it has jurisdiction to review the decision of the EPA to refuse to renew Mr Hitchcock’s accreditation as a site auditor in New South Wales. If there is no jurisdiction, it is common ground the application for an extension of time must fail as there would be no utility in allowing the review to proceed.
6. This is an important issue for Mr Hitchcock as there is otherwise no right of review from the decision of the EPA.
ISSUES FOR DETERMINATION
7. It is common ground that the Tribunal does not possess a general power to review decisions made under Commonwealth legislation. Its power to review a decision is dependent on there being an act or a legislative instrument providing for an application to the Tribunal for a review of the decision: s 25(1) of the AAT Act and Hempel and the Civil Aviation Safety Authority [2006] AATA 188 at 15.
8. Mr Hitchcock contends that the decision to refuse his application for renewal of accreditation by the EPA is a decision under s 34 (1) of the MR Act and, as such, the Tribunal has jurisdiction to review the refusal. The EPA contends the refusal was made under the Contaminated Land Management Act 1997 (NSW) (CLM Act), not the MR Act, and there is no right of review.
9. The issue for determination is whether the Tribunal has jurisdiction to review this matter and, in particular, whether the refusal by the EPA is a “decision of a local registration authority in relation to its functions” under the MR Act.
LEGISLATIVE FRAMEWORK
10. The MR Act was enacted by the Commonwealth Parliament in March 1993 following discussion, and finally agreement, between the Commonwealth and the States to implement a scheme, applying uniformly throughout Australia, for the mutual recognition by the States and Territories of each other's differing regulatory standards regarding goods and occupations: Mutual Recognition Bill 1992, Explanatory Memorandum, clauses 1 to 6 (Explanatory Memorandum)
11. The MR Act forms part of the national legislative scheme which involved the enactment of uniform legislation for mutual recognition in each State and Territory. Section 3 of the MR Act provides,
The principal purpose of this Act is to enact legislation authorised by the Parliaments of States under paragraph (xxxvii) of section 51 of the Commonwealth Constitution, and requested by the legislatures of the Australian Capital Territory and the Northern Territory, for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia.
12. Part 3, Division 1 of the MR Act deals with the mutual recognition of occupations as between States. Section 16 relevantly provides,
(1) The mutual recognition principle as applying to occupations is as set out in this Part.
(2) This Part deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.
13. Section 17 describes the “mutual recognition principle” as follows,
(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a) to be registered in the second State for the equivalent occupation; and
(b) pending such registration, to carry on the equivalent occupation in the second State.
(2) However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws:
(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
14. A person who is registered for an occupation in a State may apply to the local registration authority of another State for registration of the equivalent occupation in that State: s 19 of the MR Act. If a person lodges such an application they may be entitled to registration and continued registration under s 20 of the MR Act which provides,
(1) A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.
(2) The local registration authority may grant registration on that ground and may grant renewals of such registration.
(3) Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State.
(4) Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws:
(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
(5) The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person's registration in the first State or that are necessary to achieve equivalence of occupations.
(6) This section has effect subject to this Part.
15. Section 21 of the MR Act sets out the action that must be taken by the local registration authority following the lodging of a notice under s 19 and provides that the application must be granted, postponed or refused within one month after the notice is lodged. A local registration authority may postpone the registration in certain circumstances (s 22) and may refuse to grant registration under s 23 of the MR Act if,
(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or
(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or
(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
16.. Section 34(1) of the MR Act provides,
(1) Subject to the Administrative Appeals Tribunal Act 1975 , application may be made to the Tribunal for review of a decision of a local registration authority in relation to its functions under this Act.
17 The CLM Act deals with the management and remediation of contaminated land and its objects, as stated in section 3(2) relevantly include,
(c) to provide for the accreditation of site auditors of contaminated land to ensure appropriate standards of auditing in the management of contaminated land
18. Section 52 of CLM Act deals with applications for renewal accreditation of site auditors in New South Wales and includes the following provisions,
(3) The EPA is to determine an application for renewal of accreditation as a site auditor by granting or refusing the application.
(4) The EPA may refuse to grant renewal of accreditation as a site auditor on any of the grounds referred to in section 56 (1) or if the applicant fails to comply with this section or a requirement made under this section.
(5) The EPA must give notice in writing of the determination of the application to the applicant, including:
(a) if the application is granted, notice of the period for which the renewal of accreditation is granted and any conditions to which the accreditation is subject, and
(b) if the application is refused, the reasons for the refusal.
(6) If an application for renewal of an accreditation that is in force is made to the EPA within the time (if any) prescribed by the regulations, the accreditation remains in force until notice in writing of the determination of the application is given to the applicant.
19 Under s 56 (1) of the CLM Act, the EPA may suspend, revoke or refuse to renew the site auditor’s accreditation if it is of the opinion that one or more of the grounds set out in ss(1) exist, which include,
(b) the site auditor has contravened:
(i) any of the provisions of this Part, or
(ii) any of the provisions of the regulations, or
(iii) a condition to which the accreditation is subject, or
(iv) a direction given to the site auditor by the EPA under this Part...
(h) the action is justified having regard to:
(i) the quality of the site auditor’s work in relation to site audits in recent accreditation periods, or
(ii) any formal or informal disciplinary action taken against the site auditor under this Act, or
(iii) any other matter that the EPA considers to be relevant to the site auditor’s suitability for accreditation.
BACKGROUND FACTS
20. The facts relevant to the jurisdictional issue are not in dispute. Mr Hitchcock's accreditation was granted by the EPA in August 2005 and was renewed each year until 2009. Conditions were imposed under section 53 of the CLM Act and included a condition that,
The auditor must maintain a good understanding of guidelines made or approved by the EPA under section 105 of the Act.
21. In February 2008, a special condition was placed by the EPA on Mr Hitchcock's accreditation in NSW, requiring his audits to be reviewed by a three year accredited NSW site auditor. Mr Hitchcock complied with that special condition.
22. On 6 July 2009, Mr Hitchcock applied to the EPA for renewal of his accreditation as a NSW site auditor. On 22 October 2009 he requested the removal of the special condition on his accreditation. Even though the EPA did not renew Mr Hitchcock’s accreditation, it remained in force until such time as his application for renewal was determined.
23. On 24 June 2010 Mr Hitchcock received a letter from the EPA asking him to “show cause” why his application for accreditation renewal should not be refused. The letter referred to work undertaken by Mr Hitchcock for a site in Newcastle and stated there were "serious issues of concern regarding the standard of audit work". Particulars of the issues of concern were set out in an attachment to the letter.
24. On 7 July 2010 Mr Hitchcock provided a response to the letter of 24 June 2010, setting out the reasons why his accreditation for renewal should not be refused and responding to each of the "issues of concern".
25. On 6 August 2010 Mr Hitchcock received a further letter from the EPA notifying him his application for renewal was refused and his accreditation as an auditor in NSW expired on 6 August 2010. The letter stated that the Mr Hitchcock's application for renewal was refused on the grounds that he had breached a number of the provisions of s 56(1) of the CLM Act, namely he had failed to demonstrate a good understanding of guidelines and to implement the requirements (s 56(1)(b)(i)); breached the accreditation condition to maintain a good understanding of guidelines made or approved by the EPA under s 105 of the CLM Act (s 56(1)(b)(iii)), and failed to maintain a high professional standard and to produce audit work of a high standard to provide a robust basis for further decisions relating to contaminated sites (s 56(1)(h)(i)).
26. Mr Hitchcock remains registered as an environmental auditor in Victoria and this continues to be his primary accreditation. He also remains registered as an environmental auditor in Western Australia and South Australia. The decision of the NSW EPA is said to have broader implications for Mr Hitchcock because he says he has received a letter from the EPA in Victoria asking him to show cause in relation to his appointment as an environmental auditor under the EP Act, having regard to the refusal of the EPA in NSW to renew his accreditation in NSW. The relevant authorities in Western Australia and South Australia have indicated that they will follow the decision of the Victorian EPA.
SUBMISSIONS OF THE PARTIES
27. Counsel for Mr Hitchcock contends that the decision of the EPA to refuse renewal of accreditation is a decision of the EPA “in relation to its functions under this Act”. There is no justification to read the provision narrowly or to confine the review jurisdiction of the Tribunal to “decisions under this Act”. The words “in relation to”, based on their ordinary meaning, are broad enough to include the original registration, renewal and the imposition of conditions on registration.
28. It does not matter that the decision of the EPA was made under sections 52(4) and 56(1) of the CLM Act. A decision can be both made under the CLM Act and at the same time be a decision of the EPA in relation to its functions under the MR Act. If the decision is of this “dual character”, s 34 of the MR Act is still enlivened. In any event, the EPA exercised the function of refusing to renew registration “because of and by force of” s 20 of the MR Act. It is further argued that one of the reasons given for failure to renew accreditation was the failure of Mr Hitchcock to comply with one of the conditions of renewal. As s 20 (5) of the MR Act permits the imposition of conditions, it can “even more comfortably be concluded” that the refusal was a decision of the EPA in relation to its functions under the MR Act.
29. The EPA argues there would be an anomaly created if site auditors who practice nationally have access to review of administrative decisions in a Commonwealth Tribunal when those who practice locally have no such access. Counsel for Mr Hitchcock says there is no anomaly. The nature of federation means that persons who conduct their affairs across state borders will be subject to Commonwealth regulation and commensurate rights of review. Moreover, it would be anomalous for the Tribunal to have jurisdiction to review initial registration decisions and the imposition of conditions but not decisions to refuse renewals.
30. Counsel for the EPA submits the decision to refuse recognition was made under sections 52 and 56 of the CLM Act and not under the MR Act. The only power the Tribunal has to review decisions is in respect of those decisions specifically authorised under the MR Act, such as a decision by a local registration authority to grant registration (s 20 and s 21); a decision to impose conditions on registration (s 20(5)); a decision to postpone registration (s22); and a decision to refuse a grant of registration (s 23). It is submitted that once registration is granted, continuance of registration is otherwise subject to the laws of the local jurisdiction by reason of the s 6 and s 20(4) of the MR Act. The MR Act does not refer to or authorise a local registration authority to refuse to renew registration.
31. Counsel for the EPA contends that the MR Act is about the entitlement of a person registered to carry on an occupation in one State to be registered in another for the equivalent occupation. Whether that person continues to be registered will be determined under the laws of the local jurisdiction and not the MR Act. The only limit on the operation of the laws of the local jurisdiction is that they must not be discriminatory or based on some qualification or experience relating to fitness to carry on the occupation (s 20(4)(a) and (b) of the MR Act).
CONSIDERATION
32. Mr Hitchcock argues the authority of the EPA to refuse renewal of accreditation is “because of and by force of” the MR Act and, as such, s 34 provides a legislative basis for review by the Tribunal. I do not accept this contention.
33. It is clear from the provisions of Part 3 that the MR Act creates an entitlement to recognition and provides a legislative mechanism for registration. The legislation focuses on the gateway for registration and recognises continued entitlement to registration but not does, of itself, create the obligation on the local registration authority to renew registration. Section 20 (2) of the MR Act recognises that the local registration authority, in this case the EPA, may renew registration but does not provide for renewal. Similarly, there is no specific provision dealing with refusal to renew registration. This is in contrast to s 21 of the MR Act, which provides that registration must be granted, postponed or refused within one month after a notice is lodged under s 19.
34. The relevant legislative provisions that deal with renewal of registration and refusal to renew registration (or accreditation as it is referred to under the New South Wales legislation) are contained in the CLM Act. Section 52(3) of the CLM Act provides that the EPA must determine an application for renewal of accreditation by granting or refusing the application and s 52(4) provides that the application for renewal may be refused on any of the grounds in s 56(1). Section 56(1) also provides for the EPA to refuse renewal.
35. In my view, the decision to refuse renewal of accreditation was made pursuant to s 52(4) and s 56(1) of the CLM Act. The MR Act is not authority for or the source of power under the CLM Act. The MR Act and the CLM Act operate independently of, but concurrently with, each other. There is no inconsistency, except to the extent that the MR Act seeks to promote uniformity in standards in respect of the accreditation of occupations as between the States and Territories. Where there is inconsistency, the MR Act prevails but the MR Act is not otherwise intended to affect State laws and this is clear from the Explanatory Memorandum at clause 12,
The Commonwealth Act will provide a comprehensive scheme for mutual recognition which will operate independently of other State laws and therefore will not require modification of those laws to enable its implementation. This is achieved through section 109 of the Constitution, which provides that a Commonwealth Act prevails over a State Act to the extent of any inconsistency.
36. Mr Hitchcock also argues that, notwithstanding this, it is possible for a decision to be made under local state legislation, in this case the CLM Act, but still be a reviewable decision for the purposes of section 34 of the MR Act.
37. I accept this contention. Rights of review to a Commonwealth tribunal (such as the Administrative Appeals Tribunal) may still be available, even where a decision is made under State legislation, provided jurisdiction is conferred on the Tribunal under an enactment. This would not necessarily be an “anomaly” as special rules often apply where trade is conducted across borders. However, the critical issue for determination is the meaning of “a decision of a local registration authority in relation to its functions under this Act”. This is a question of statutory interpretation. While it is relevant to consider the breadth of the words “in relation to”, the most useful analysis is to focus on the “functions” of the EPA under the MR Act as it is decisions in relation to these functions that are reviewable by the Administrative Appeals Tribunal under s 34 of the MR Act.
38. The functions of the EPA under the MR Act are set out in the legislation and can be summarised as follows:
· Consideration of initial applications for registration under the mechanisms provided, which may include the granting, postponing or refusal of the application (s 20(1) and ss 21 to 23);
· Imposition of conditions in respect of those applications (s 20(5));
· Notification to the applicant of decisions in writing (s 24);
· Functions that may arise under the “deeming of registration” provisions (s 27(4) and (5)), and
· Miscellaneous obligations under the general provisions (eg ss 37 to 40).
39. The “functions” of a local registration authority under the MR Act do not include renewal of registration or refusal to renew registration. These functions are exercised by the EPA under the CLM Act and this is specifically recognised in the MR Act, which states that the “continuance of registration is otherwise subject to the laws of the second State.”
40. This is also confirmed by the Second Reading Speech for the Mutual Recognition Bill 1992 by the Minister for Science and Technology and Minister Assisting the Prime Minister on 3 November 1992 (Australia, House of Representatives, Debates, 3 November 1992, pg 2432). When outlining the “Operation of the Scheme”, the Minister stated,
The focus of mutual recognition is on the regulation of goods at point of sale and on entry by registered persons into equivalent occupations in another State or Territory. Mutual recognition will not affect the ability of jurisdictions to regulate the operation of businesses or the conduct persons registered in an occupation.
41. There is no anomaly in a party having access to rights of review to a Commonwealth tribunal in respect of the initial registration and conditions imposed pursuant to that registration but not in relation to renewal and refusal of renewal. The MR Act provides a scheme for recognition and focuses on the entry point for recognition. As this is a national scheme facilitated by the Commonwealth, it would be expected that Commonwealth rights of review may follow. As the Minister stated when outlining the appeal process,
To avoid costly and lengthy appeals processes in State and Territory courts, the Commonwealth Administrative Appeals Tribunal will hear appeals against decisions of local registration authorities and will have the power to declare an occupation to be non-equivalent. States and Territories have agreed to vest the AAT with this additional jurisdiction.
42. On the other hand, it would be anomalous for there to be access to review for a refusal to renew the registration of a person who gained initial registration under the MR Act but no review where the person was registered under the CLM Act. Both applicants should be treated equally once initial registration is granted and it would be inconsistent with s 6 and s 20(4) of the MR Act and with the purpose of the legislation as outlined in the Explanatory Memorandum and by the Minister for there to be different rights of review.
43. The decision to refuse renewal of accreditation was in part because Mr Hitchcock breached the accreditation condition of being required to have a good understanding of the relevant guidelines. Mr Hitchcock contends that this provides a basis for jurisdiction. I disagree. The function originally exercised by the EPA was to impose a condition on accreditation under the CLM Act which was consistent with s 20(5) of the MR Act. Section 20(5) of the MR Act recognises that a local registration authority may impose conditions but its main purpose is to limit the scope of conditions imposed to give effect to the national scheme. The decision now sought to be challenged does not relate to the decision to impose the condition or whether it was permitted by s 20(5) but rather enforcement of that condition. In my view, this does not enliven jurisdiction to conduct a review under s 34.
44. For these reasons, I find that the decision of the EPA is not a “decision of a local registration authority in relation to its functions” under the MR Act. Therefore, the Tribunal does not have jurisdiction under s 34 of the MR Act to review the decision of the EPA to refuse renewal and I refuse Mr Hitchcock’s application for an extension of time under s 29(7) of the AAT Act.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J L Redfern
Signed: .............[sgd]...................................................................
AssociateDate of Hearing 29 November 2010
Date of Decision 23 February 2011
Counsel for the Mr Hitchcock Mr R P L Lancaster, SC
Solicitor for the Mr Hitchcock McDonald Johnson Solicitors
Counsel for the Respondent Mr David MallonSolicitor for the Respondent New South Wales Environment Protection Authority
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