Jan Ruckschloss v Craig Simmons (No 2)
[2013] ACTSC 133
•19 July 2013
JAN RUCKSCHLOSS v CRAIG SIMMONS & ANOR (No 2)
[2013] ACTSC 133 (19 July 2013)
STATUTES – interpretation – Construction Occupations (Licensing) Act 2004 – separate question – whether there is power under s 21 of the Act to impose conditions on the licences of building surveyors relating to professional engineers – read together with the Building Act 2004 there is such power
Building Act2004 (ACT), ss 26, 28, 29, 47, 48, 67, 69
ConstructionOccupations (Licensing) Act 2004 (ACT), ss 6, 7, 9, 14A, 18, 19, 21, 103, 104
Construction Occupations (Licensing) Regulations 2004 (ACT), r 13
Applicant S20 (2003) 77 ALJR 1165
Attorney General (NSW) v Quin (1990) 170 CLR 1
Attorney-General (SA) v Corporation of the City of Adelaide (2013) 87 ALJR 289
Commonwealth v Progress Advertising & Press Agency Co Pty Ltd (1910) 10 CLR 457
Davids Holdings Pty Ltd v New South Wales Dairy Corporation (1988) 15 ALD 745
Ex parte Walsh and Johnson: In re Yates (1925) 37 CLR 36
Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40
Klein v Domus Pty Ltd (1963) 109 CLR 467
Pyx Granite Company Ltd v Ministry of Housing & Local Government [1958] 1 QB 554
No. SC 414 of 2012
Judge: Master Mossop
Supreme Court of the ACT
Date: 19 July 2013
IN THE SUPREME COURT OF THE )
) No. SC 414 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: JAN RUCKSCHLOSS
Plaintiff
AND: CRAIG SIMMONS
First Defendant
AND: DAVID MIDDLEMISS
Second Defendant
ORDER
Judge: Master Mossop
Date: 19 July 2013
Place: Canberra
THE COURT ORDERS THAT:
The question ordered on 7 June 2013 to be determined separately from any other decision in the case be amended to:
Does the first and/or second defendant have power under s 21 of the ConstructionOccupations (Licensing) Act 2004, or otherwise, to impose conditions on the licences of building surveyors (certifiers) that relate to the plaintiff?
The question as amended by order 1 be answered “Yes”.
On 7 June 2013 I ordered that a question be decided separately from any other decision in the case. That question, slightly reformulated so that it more properly poses a question to be answered, is:
Does the first and/or second defendant have power under s 21 of the ConstructionOccupations (Licensing) Act 2004, or otherwise, to impose conditions on the licences of building surveyors (certifiers) that relate to the plaintiff?
Facts
The following facts are agreed between the parties.
The plaintiff holds a Bachelor of Engineering degree (with Honours). Since 1988 the plaintiff has been practising as a structural engineer in Australia. The plaintiff is currently an engineer practising in the Australian Capital Territory. He is a member of the National Professional Engineering Register Australia with a membership number 45743. He is a Chartered Professional Engineer and a corporate member of the Institute of Engineers Australia.
The second defendant, David Middlemiss, is the Construction Occupations Registrar appointed under s 103 of the Construction Occupations (Licensing) Act 2004 (“COL Act”). I will refer to him as the Registrar. The first defendant, Craig Simmons, the Director, Construction Services Branch, Environment and Sustainable Development Directorate, has issued letters dated 20 November 2012, 14 February 2013 and 29 April 2013 in which he outlines a proposal of the Registrar to place conditions on the licenses of building surveyors relating to the plaintiff.
In order to understand the case it is necessary to say something more about that correspondence which is annexed to the special case.
By letter dated 20 November 2012, first defendant notified the plaintiff that the Registrar was proposing to exercise powers under the COL Act by imposing a condition on the licence of each building surveyor licensed under the COL Act that would require an independent engineer to check any engineering work undertaken by the plaintiff prior to that building surveyor “providing any certification services in relation to such design or advice”. That letter then refers to three developments in which it is alleged that the plaintiff provided engineering services and which are said by the first defendant to be evidence that the professional engineering services provided by the plaintiff to licensed builders and certifiers “has contributed to multiple breaches of the Building Code of Australia (BCA) and the Building Act2004”. The letter emphasises that no decision had been made to impose the suggested condition on building surveyors and that the purpose of the letter was to give the plaintiff the opportunity to respond to the matters raised.
The letter prompted the solicitors for the plaintiff to write to Mr Simmons on 26 November 2012 contending that the Registrar did not have power to impose such a condition because there was no power under the COL Act to regulate engineers. The letter submitted that the Registrar was attempting to do indirectly what he could not do directly and that he would be acting ultra vires.
There was then further correspondence between the parties on 30 November 2012, 1 December 2012, 3 December 2012 which it is not necessary to recount. On 14 February 2013 Mr Simmons wrote to the plaintiff outlining five other projects in relation to which the Territory had materials available that indicate “that you have been associated with significant design failures with respect to the further projects”. The letter provided details in relation to each of those projects. Once again the letter provided the plaintiff with the opportunity to make any submission in relation to the material put to him as to “why in light of any of the latter eight matters the Registrar should not forthwith take steps to place a condition on each building surveyor’s licence that would require them to use an independent engineer to check any engineering work undertaken by you prior to the surveyors providing any certification services in relation to your engineering design work or advice”.
On 29 April 2013 the first defendant sent another letter to the plaintiff relating to expert evidence that had become available to the Territory relating to another development in which the plaintiff was said to have been involved.
Submissions
The plaintiff submitted that the Registrar had no power under the COL Act to regulate engineers and hence no power to impose a condition under s 21 of the Act that related to the plaintiff. The principle submissions made by the plaintiff can be summarised as follows.
(a) The long title of the Act, “An Act to regulate construction occupations, and for other purposes”, and the fact that s 7 of the COL Act includes a list of “construction occupations” which does not include engineers are indications that the Act gives “no power to regulate engineers”.
(b) Had parliament intended that the Registrar would have power to “regulate engineers” it could easily have included engineers in the list of construction occupations but did not do so.
(c) The second defendant cannot do indirectly what he cannot do directly and is not able to use his powers for an ulterior object of “the regulation of engineers” however desirable that may seem to be in the public interest: Pyx Granite Company Ltd v Ministry of Housing & Local Government [1958] 1 QB 554 at 572, Davids Holdings Pty Ltd v New South Wales Dairy Corporation (1988) 15 ALD 745 at 746.
(d) It is a long accepted principle of statutory construction that every citizen is at liberty, prima facie, to carry out his business in his own way within the law and it will not be held that the legislature has intended by any statute to impair that liberty unless it has expressed that intention by plain words or by necessary implication from the language used: Commonwealth v Progress Advertising & Press Agency Co Pty Ltd (1910) 10 CLR 457 at 464; Ex parte Walsh and Johnson: In re Yates (1925) 37 CLR 36 at 93.
(e) The proposed condition, being directed to an individual, is “fundamentally at odds with the most basic principle of the Rule of Law”. The plaintiff referred to the decision of Spender J in Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40 at [49] in which his Honour said “Laws must be of general application. If government can arbitrarily select those to whom the law, and consequent sanctions, will apply, there is no Rule of Law, but arbitrary whim.”
(f) The imposition of a condition on building surveyors relating to the plaintiff would be inconsistent with s 47 of the Building Act2004 (which I set out below).
The defendants’ principle submissions were that the provisions of the COL Act either by themselves or in combination with those of the Building Act2004 empowered the imposition of the suggested condition.
The defendants referred to a number of sections of the COL Act and the Construction Occupations (Licensing) Regulations (“COL Regulations”). The defendants also referred to the role of building surveyors under the Building Act (where they are referred to as certifiers) and the relationship between the role of building surveyors and engineers under that Act, in particular in ss 28, 29, 47 and 48 of that Act.
The defendant accepted that the power to impose terms or conditions on a licence
(a) is not unrestricted and that the conditions must be for the purpose of carrying into effect the relevant Act;
(b) that any conditions must fairly and reasonably relate to the licenses for which application has been made and not be imposed for an ulterior object; and
(c) that the discretion to impose the condition must be exercised in good faith.
The defendants emphasised the fact that the doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the Court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion: Wade, Administrative Law (6th ed, Oxford University Press, 1988) at 407; Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36-37; Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473; Applicant S20 (2003) 77 ALJR 1165 at [69].
The plaintiff submitted in reply that the question of reasonableness or good faith did not arise because his submission was that there was no power at all to regulate engineers under the COL Act. It was not a case of assessing whether, within an accepted power, the exercise of that power was reasonable but rather whether regulation of engineers was simply beyond the scope of the Act.
Statutory provisions
In order to understand these submissions and answer the separate question it is necessary to have regard, in some detail, to the provisions of the COL Act and, to a lesser extent, the Building Act.
I have set out the long title of the COL Act above.
Section 6 and 7 of the Act have the effect of defining what is a “construction occupation”. Those sections provide:
6 What is a construction practitioner?
(1) A construction practitioner is an entity that provides, has provided or proposes to provide a construction service.
(2) A construction service is the doing or supervision of work in a construction occupation.
Note Supervise—see dict.
(3) For this Act, the regulations may—
(a) prescribe work as work in a construction occupation; and
(b) exclude work from a construction occupation.
7 What is a construction occupation?
Each of the following is a construction occupation:(a) asbestos assessor;
(b) asbestos removalist;
(c) builder;
(d) building assessor;
(e) building surveyor;
(f) drainer;
(g) electrician;
(h) gasfitter;
(i) plumber;
(j) plumbing plan certifier;
(k) works assessor.
It should be noted that construction occupations are listed in s 7 and include “building surveyor” but do not include “engineer” or any equivalent. Although s 6(3) permits the COL Regulations to expand the definition of “construction occupation”, they do not do so. Section 9 of the Act defines what a “building surveyor” is. The effect of s 9 in combination with s 14A of the Act is that a building surveyor is an entity that provides, has provided or proposes to provide, one or more of three identified classes of service. Those classes are a “building certification service”; an “exemption assessment service”; or a “works assessment service”. Those three categories are further defined so that:
(a) a “building certification service” is the doing of “building certification work” which is, in turn, anything that a building certifier may or must do under the Building Act2004;
(b) an “exemption assessment service” involves assessing whether works are exempt from all or part of the Building Act;
(c) a works assessment service involves assessing whether or not a development is exempt from approval under the Planning and Development Act2007 or providing a unit title assessment report under the Unit Titles Act2001.
It is important to note the condition suggested by the defendants (see [6] above) would involve a restriction on building surveyors when they provided “certification services”.
Part 3 of the Act is headed “Construction practitioners licenses”. It provides a scheme for applications for, and granting of, licences to individuals, corporations or partnerships that apply to be licensed in a construction occupation or, for a construction occupation that is divided into classes, in an occupation class. It permits the regulations to prescribe when an entity is eligible or not to be licensed in a construction occupation or occupation class, including the qualifications that the entity must have in order to be eligible. Section 19 of the Act provides for a decision on a licence application. Section 21 of the Act relates to conditions that may be imposed on licences. It provides:
21 Licence conditions
(1) The regulations may prescribe—
(a) conditions on licences; and
(b) when conditions on licences (whether imposed under the regulations or by the registrar) take effect.
(2) The registrar may amend a licence by putting a condition on the licence, or by amending or cancelling a condition the registrar has put on the licence, at any time by written notice given to the licensee, unless the regulations provide otherwise.
(3) The registrar may amend a licence by putting a condition on the licence, or amending the licence, only if satisfied that it is necessary or desirable to protect the public.
Part 4 of the Act provides a scheme for the making of rectification orders against licensees and sets out other obligations of licence holders. Part 5 of the Act relates to licence suspension and occupational discipline. Part 6 of the Act has various provisions relating to compliance auditors appointed under the Act. Part 7 of the Act contains offence provisions. Part 8 of the Act sets up a scheme of demerit points for licensees. Part 9 of the Act is headed “Administration”. Section 103 of the Act provides for the appointment of a public servant as the Construction Occupations Registrar. Section 104 of the Act outlines the Registrar’s functions. It provides:
104 Registrar’s functions
(1) The registrar has the following functions:
(a) to keep the registers under this Act;
(b) to administer operational Acts;
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
(c) to decide applications in relation to licences;
(d) to maintain the standard of construction occupations by—
(i)acting on complaints made about construction practitioners, including by applying to the ACAT for occupational discipline if appropriate; and
(ii)providing construction practitioners with information about developments in the construction industry.
(2) The registrar has any other function given to the registrar under this Act or another Territory law.
The reference to “operational Acts” in s 104(1)(b) is a reference to the Acts which are listed in s 16 of the Act which include a number of building and development related pieces of legislation including of the Building Act 2004.
Part 10 of the Act provides for the establishment of advisory boards for construction occupations. Part 11 provides a statutory process for the making and investigation of complaints about licensees if they are alleged to have breached the COL Act or an operational Act. Part 11AA provides statutory authority for the sharing of “public safety information” between various Territory agencies. “Public safety information” is defined as meaning “information in relation to a situation that presents or is likely to present a risk of death or injury to a person, significant harm to the environment or significant damage to property, that is disclosed to, or obtained by, a public safety agency because the agency is, or has been, a public safety agency.” This provision is included to overcome the constraints that might otherwise apply as a consequence of the Privacy Act1988 (Cth) to such information exchange. Part 11AB of the Act has specific provisions relating to the provision of energy efficiency rating statements. Part 11A provides for administrative review of certain decisions by the ACAT. The remaining parts of the Act, Parts 12, 14, 16, 17 contain miscellaneous and transitional provisions.
The Building Act provides for the appointment of a certifier for building work. The certifier must be entitled under the COL Act to perform services as certifier for the work. The effect of this is to require a building surveyor who is licensed under the COL Act to be appointed. Certifiers consider applications for building approval for building work: s 26 and may issue a building approval: s 28. If certain conditions are met then the certifier must issue the building approval: s 28(2). One of the conditions that must be met is that the certifier must be satisfied on reasonable grounds that the plans meet each of the approval requirements under s 29 of the Act. Section 29 of the Act includes as one of the approval requirements for plans that:
(f) the building as proposed to be erected or altered will be structurally sufficient, safe and stable.
Plainly enough, in order to form that opinion, the certifier will need to have regard to the plans and any supporting documentation that is either specifically required by the Act or Regulations to accompany them, the certifiers own expertise and any other consultant or resource which the certifier considers necessary. Sections 47 and 48 of the Act appear in Division 3.6 which is entitled “Completion of building work”.
Section 47 provides:
47 Structural engineer’s certificate
(1) A certifier may require the owner of a parcel of land where building work is being, or has been, carried out to give the certifier the certificates by professional engineers about the structural sufficiency, soundness and stability of the building as erected or altered for the purposes for which the building is to be occupied or used.
(2) The certifier may require the certificates only if satisfied on reasonable grounds that it is desirable to do so in the interests of people who occupy or use, or are likely to occupy or use, the building or part of the building that is being, or has been, erected or altered.
Section 47(1) of the Act is somewhat difficult to understand in that it refers to “the certificates” as if “the” certificates were necessarily already in existence, which may well not be the case. I interpret it as giving a power to require an owner to provide certificates which may or may not predate the request from the certifier.
Section 48 sets out what must be done upon completion of building work. It requires a certifier to give to the Registrar a series of documents relating to the approval and construction of the building. It provides:
48 Completion of building work
(1) This section applies if—
(a) building work appears to have been completed; and
(b) either—
(i)the certifier is satisfied on reasonable grounds that the work has been completed—
(A) in accordance with this Act; and
(B) in accordance with, or substantially in accordance with, the approved plans; or
(ii)the certifier is satisfied on reasonable grounds that—
(A) the work has not been completed in accordance with this Act; and
(B) the work has been completed in accordance with, or substantially in accordance with, the approved plans or plans that have been approved plans for the work, but are no longer approved plans in the circumstances prescribed by regulation; and
(c) the building as erected or altered is structurally sufficient, sound and stable for the purposes for which it is to be occupied or used.
(2) A regulation may prescribe when work is or is not substantially in accordance with approved plans.
(3) Within 7 days after the day the certifier is satisfied, the certifier must give to the construction occupations registrar the following:
...
(i) if a certificate has been obtained under section 47 (Structural engineer’s certificate)—the certificate;
(j) if no certificate under section 47 has been obtained—a written statement to the effect that—
(i) the certifier is satisfied that the building as erected or altered is structurally sufficient, sound and stable for the purposes for which it is to be occupied or used; and
(ii) no certificate under section 47 is required;
(k) if, in the certifier’s view, the requirements of section 69 (1), (2) or (3) (Certificates of occupancy) have been satisfied—written advice that the registrar would be justified in issuing a certificate of occupancy for the building under section 69 (1), (2) or (3);
...
(n) a copy of the following documents and papers relating to the building work:
(i) any application to the certifier under this Act and any accompanying document;
(ii) all plans or drawings;
(iii) any approval, certificate, determination, notification or permission issued or given (a relevant document);
(iv) any certificate or other document given or prepared by someone else that the certifier has relied on for the purpose of issuing or giving a relevant document;
(v) the certifier’s working papers and calculations that are relevant to the issuing or giving of a relevant document.
Section 48 only applies where the conditions in s 48(1) are met. Where it applies the certifier must do what is required by s 48(3), namely, provide the various documents to the Registrar. The Registrar then has power to issue a certificate of occupancy under s 69 of the Act and may rely upon the documents given to the Registrar by the certifier under s 48, including the advice under s 48(3)(k) that the issuing of a certificate would be justified.
There are some oddities in the drafting of s 48(1). Paragraph (b), which relates to whether or not the building is completed in accordance with the Act and the approved plans, is clearly based upon the satisfaction of the certifier since it refers to the certifier being satisfied on reasonable grounds. Paragraph (a) would also appear to be based upon the opinion of the certifer since it refers to the building work “appearing” to be complete. Logically, given the obligations in s 48, it should be the appearance to the certifier which is relevant and hence the paragraph should probably be read as if is said “building work appears to the certifier to have been completed; and”. Paragraph (c) is more problematic. It is not expressly based on the opinion of the certifer. It does not say, for example, “the certifier is of the opinion that the building as erected or altered is structurally sufficient, sound and stable for the purposes for which it is to be occupied or used”. Rather, its drafting would suggest that condition (c) is an objective fact which provides a precondition to the exercise of power under s 48(3). It is hard to see what utility there would be in making paragraph (c) a jurisdictional fact and, in my view, it would be more appropriate to read that paragraph as being based upon the certifiers opinion notwithstanding that such an interpretation fits awkwardly with the text of the section.
In any event, whether or not such an interpretation is given to s 48(1)(c), it can be seen from the scheme of s 48 that the role of the certifier is absolutely central in ensuring that the prescribed requirements, including requirements as to quality and safety, are met. It is the certifier’s opinion as to the matters under s 48(1) which will determine whether or not documents are provided to the Registrar. The certifiers decision that the preconditions in s 48(1) are met, which gives rise to the obligation to submit documents to the Registrar, will, in a practical sense, be determinative of whether or not a certificate of occupancy is issued because the Registrar will rely upon the documents provided to be satisfied that it is appropriate to issue a certificate of occupancy. Thus, the robustness of the certification process is central to the operation of the Act.
Consideration
In my view the separate question should be answered in a manner favourable to the defendants. My reasons for that conclusion are as follows.
The power to impose licence conditions in s 21(2) is in general terms. The express qualifications on the power are that the power:
(a) cannot be exercised if the regulations provide otherwise: s 21(2);
(b) can only be exercised “if satisfied that it is necessary or desirable to protect the public”: s 21(3).
There are no regulations which “provide otherwise”.
The requirement in s 21(3) that the Registrar be satisfied that it is necessary or desirable to protect the public is an indication that the purpose of regulation of construction occupations is the protection of the public. Given the varying activities conducted by those carrying out construction occupations, the protection of the public can involve a range of things. It certainly extends to the protection of the public in so far as they deal with licencees. An example of this would be the regulation of their dealings with members of the public when entering contracts for the provision of services. It is also open, in my view, to regulate the quality of their work so as to protect the broader public, who have not dealt directly with the person carrying out the construction occupation, from the possible consequences of defective or inadequate decisions by that person. It is this latter category of conditions which does, in my view, encompass conditions relating to the plaintiff.
One of the ways by which the quality of building surveyors’ work is likely to be assured is through their qualifications. That is dealt with in s 18 which permits the regulations to determine the eligibility requirements for particular occupations and regulation 13 of the COL Regulations which permits the Registrar to declare the qualifications that are necessary for eligibility for a licence in a construction occupation.
However once licenced, one of the ways in which the quality of the outcomes of certification decisions can be influenced is through conditions which control either the process by which certification decisions are made or the inputs into such decisions. Precisely what conditions might be necessary is very much dependent on the evidence that is available to the Registrar and the requirement that the Registrar be satisfied that any condition is necessary or desirable for the protection of the public.
If, for example, it appeared that some building surveyors, for the purpose of ss 28(2)(b) and 29(f) or s 48(3)(j)(i) (which involve satisfaction as to the structural sufficiency, safety and stability of a building) were making use of a proprietary software package which the Registrar was satisfied was inaccurate in a way that led to certification of plans or recommending the issuing of certificates of occupancy for buildings which were unsafe, it would, in my view, be open to impose a condition that limited the use which could be made of that software package. The precise nature of the condition would, within the scope of s 21(2) of the COL Act be a matter for the Registrar.
Engineering advice or certification is another input into a certifiers decision which can lead to the satisfaction required by 28(2)(b) or s 48(3)(j)(i) of the Building Act. Just as, if the evidence justified it, the Registrar might be satisfied that it was appropriate to impose a condition that limited the use to which particular software might be put by a certifier, so too is it open to limit the use which can be made of engineering advice or engineering advice of a particular kind. This is simply another input into the certification decision which can have an influence on quality of the certification decision and hence on the safety of the buildings constructed as a consequence of those decisions.
The certification decision under s 48 is then relied upon by the Registrar in making the ultimate decision under s 67 as to whether the requirements of the Act have been met which would lead to the issue of a certificate of occupancy. Although the Registrar may have regard to more than just the material provided to the Registrar under s 48: see s 67(2), unless the Registrar is to repeat the work of the certifier, the quality and reliability of the documents given to the Registrar under s 48 is central to the operation of these parts of the Act.
It is not to the point to submit, as did the plaintiff, that engineers are not listed in the list of construction occupations and hence there was no power under the Act to “regulate engineers”. A condition regulating the quality of inputs into certification decisions may have consequences for engineers just as it might have consequences for software manufacturers in the example given above. Whether that amounts to “regulation of” engineers or software manufacturers does not really matter so long as the power is available under s 21(2). The fact that engineers are not listed amongst the list of construction occupations does not carve out from the operation of the Act an immunity for engineers from any effect that the operation of the Act might otherwise have on them.
The plaintiff submitted that reading the Act as permitting conditions on building surveyors that might have an effect on the nature of engineering advice that building surveyors, in their role as certifiers, might make use of was inconsistent with s 47 of the Building Act. There is, in my view, a reasonable argument that the terms of s 47 and s 48 would be inconsistent with the imposition of conditions under s 21 that have the effect of confining the capacity of certifiers to rely upon the certificates provided by a “professional engineer” or otherwise rely upon the opinion of a “professional engineer” for the purposes of performing their work. That would be on the basis that the Act establishes a regime that specifically refers to “professional engineers”. Although that term is not defined in the legislation, the Act clearly gives certificates from such persons a particular status. Where certificates from professional engineers are required under s 47 they then may be relied upon under s 48 and provide an alternative to the certifier himself or herself providing a statement that the building is structurally sufficient, sound and stable for the purposes for which it is to be occupied or used: see s 48(3)(i)–(j). Therefore, it might be argued, the Act itself gives a status to the certificates of “professional engineers” and, reading the Act as a coherent whole, s 21 should not be permitted to detract from that status by qualifying the circumstances under which such a certificate could be relied upon.
In my view such an argument should not be accepted. The Act does not disclose an intention that certificates or advice from “professional engineers” be uncritically accepted, either by the certifier or the Registrar. There is nothing in the Act which elevates the status of such certificates or other opinions of “professional engineers” to matters which cannot be questioned. Fundamentally, the point of the Act is one which is designed to ensure that buildings are safe. That involves expertise and judgment on the part of all concerned. There is nothing in the Act to indicate that notwithstanding the fundamental public interest in ensuring the safety of buildings, the discretions of the Registrar or certifiers in relation to their functions under the Act are constrained by a requirement that they must accept any opinion or certificate of a “professional engineer” just because of its source. Given the link between inputs into the certification process, including engineering certificates, and the ultimate satisfaction by the Registrar that the Act has been complied with and a certificate of occupancy should issue, I do not think s 47 of the Act can be read as giving an entitlement to rely upon the certificate of any “professional engineer” that cannot be qualified by a condition imposed under s 21 of the COL Act. Ultimately, the material that is provided has to be sufficient to satisfy the Registrar that the requirements of the Act and the approved plans for the work have been complied with.
A certifier who receives a certificate under s 47 from a “professional engineer” is not bound to uncritically accept it and pass it on to the Registrar under s 48(3)(i). The certificate must be one which the certifier considers it is appropriate to rely upon and appropriate to provide a basis for the certifier’s advice to the Registrar that the issuing of a certificate of occupancy is justified: s 48(3)(m). The same point can be made at the building approval stage in relation to the certifier’s satisfaction that the approved requirements referred to in s 29(f) have been met.
Similarly, if the Registrar forms the view that a particular input into the certification process, namely the advice or certificates of “professional engineers” may not be reliable the Registrar is not bound under the Act to accept that advice or certificate uncritically. Section 69 involves the Registrar being satisfied that the building work has been completed on the basis of the prescribed requirements. While forming the opinion that the preconditions for the issue of a certificate of occupancy have been met, the Registrar is not bound to accept the advice of the certifier. Further, where that advice is based on engineering advice or certificates then the Registrar is not bound to accept it for the purposes of issuing a certificate under s 69.
Once this point is reached, namely that for the purposes of ss 29, 48, 69 the certifier or the Registrar is not compelled to accept the opinion of a “professional engineer”, it would be going too far to suggest that ss 47 and 48 should be read as precluding conditions under s 21 of the COL Act which affect the input into certification decisions from “professional engineers”. Rather, in my view, s 21(2) should be read, consistent with the fundamental purpose of the COL Act, when read with the Building Act, of ensuring the safety of buildings, as permitting conditions relating to input into certification decisions by “professional engineers”.
Having articulated this conclusion I can state briefly my reasons in relation to the other arguments advanced by the plaintiff summarised at [10] (c), (d) and (e) above.
The submission that the Registrar cannot do indirectly what the Registrar cannot do directly is a submission which falls away once it is accepted that there is power to impose conditions on certifiers which have consequences for “professional engineers”.
The submission based on the decisions in Commonwealth v Progress Advertising and Ex parte Walsh and Johnson do not lead to any different conclusion from that stated above. The principles in the passages relied upon by the plaintiff can be characterised as manifestations of the principle of legality as that interpretative principle is explained recently in Attorney-General (SA) v Corporation of the City of Adelaide (2013) 87 ALJR 289 at [42], [145]-[150]. In the present case the purpose, text and structure of the COL Act and the Building Act are sufficient, in my view, to disclose a power to impose conditions which affect persons in the position of the plaintiff, notwithstanding that such an affect may be substantial and adverse.
The submission based on Haneef was one which was not developed in oral submissions to any extent. In my view, notwithstanding the merits of Justice Spender's decision, neither it, nor the passage upon which the plaintiff relied in his submissions would prevent a condition being imposed on a building surveyor if that condition is within the scope of the legislation having regard to its text, structure and purpose.
Conclusion
In the light of the above, the separate question should be amended so that it is in the form set out at [1] above. The question should then be answered “Yes”.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Mossop.
Associate:
Date: 19 July 2013
Counsel for the plaintiff: Mr M Spry
Solicitor for the plaintiff: KJB Law
Counsel for the defendants: Mr R P Clynes
Solicitor for the defendants: ACT Government Solicitor
Date of hearing: 19 June 2013
Date of judgment: 19 July 2013
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