Lawrence v Coal Mining Qualifications Board (NSW)

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FEDERAL COURT OF AUSTRALIA

Lawrence v Coal Mining Qualifications Board (NSW) [2004] FCA 37

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – review of decision of local registration authorities in respect of mutual recognition of occupations – whether Tribunal in error of law in determining that joint ministerial declarations had not been applied consistently with general common law rule applicable to changes in legislation – whether Tribunal in error of law in application of statutory provisions relating to equivalence of occupation – whether Tribunal in error of law in not finding that local registration authorities should have enquired into issue of equivalence – whether leave should be granted for additional grounds of appeal – proposed ground concerning reliance on an additional qualification – proposed ground concerning legitimate expectation

Acts Interpretation Act 1901 (Cth) ss 8, 46A, 50
Mutual Recognition Act 1992 (Cth) ss 4(1), 17, 28, 29, 30, 31, 32, 34
Mutual Recognition Act 1992 (NSW) s 32

Mines Safety and Inspection Regulations 1995 (WA) reg 2.21

Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255 cited
Esber v The Commonwealth (1992) 174 CLR 430 cited
Lawrence and Coal Mining Qualifications Board, Department of Mineral Resources (NSW), Re (2002) 70 ALD 496 affirmed
Maxwell v Murphy (1957) 96 CLR 261 considered

QUENTIN DERRICK LAWRENCE v COAL MINING QUALIFICATIONS BOARD (NSW) and BOARD OF EXAMINERS, DEPARTMENT OF NATURAL RESOURCES AND MINES (QLD)
W193 of 2002

RD NICHOLSON J
30 JANUARY 2004
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W193 OF 2002

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

QUENTIN DERRICK LAWRENCE
APPELLANT

AND:

COAL MINING QUALIFICATIONS BOARD (NSW)
FIRST RESPONDENT

BOARD OF EXAMINERS, DEPARTMENT OF NATURAL RESOURCES AND MINES (QLD)
SECOND RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

30 JANUARY 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The notice of motion dated 12 November 2003 brought on behalf of the appellant seeking extension of time and leave to amend the notice of appeal be refused.

2.The appeal be dismissed. 

3.The appellant pay each of the respondent’s costs of the appeal. 

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W193 OF 2002

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

QUENTIN DERRICK LAWRENCE
APPELLANT

AND:

COAL MINING QUALIFICATIONS BOARD (NSW)
FIRST RESPONDENT

BOARD OF EXAMINERS, DEPARTMENT OF NATURAL RESOURCES AND MINES (QLD)
SECOND RESPONDENT

JUDGE:

RD NICHOLSON J

DATE:

30 JANUARY 2004

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. The appellant seeks an order of review in respect of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) given on 24 May 2002:  Re Lawrence and Coal Mining Qualifications Board, Department of Mineral Resources (NSW) (2002) 70 ALD 496. In that decision the Tribunal affirmed decisions of the first respondent dated 13 January 1998 and the second respondent dated 9 July 1999.

  2. The first decision was…

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Details
Case
[2004] FCA 37
Decision Date

CaseChat Overview and Summary

In the case of Lawrence v Coal Mining Qualifications Board (NSW), the appellant sought recognition of his South Australian First-class Mine Manager’s Certificate of Competency for coal mines in New South Wales and Queensland. Both applications were restricted to lower certificates for open-cut coal mines. The appellant applied to the Administrative Appeals Tribunal for review of these decisions, arguing that he should be entitled to recognition for all coal mines, including underground mines. The Tribunal, however, found that the relevant Ministerial declarations, which had the effect of restricting recognition to open-cut coal mines, were made after the relevant decisions and therefore did not apply retroactively.

The primary legal issue was whether the Ministerial declarations could be applied retroactively to affect the appellant’s applications for recognition. The Tribunal held that the declarations, which were legislative in nature, did not apply to events that occurred before their enactment. The appellant argued that the Tribunal should have considered the evidence of his activities in his occupation to determine equivalence, but the Tribunal found that such consideration was unnecessary when a Ministerial declaration had already been made. The Tribunal also rejected the argument that it should not affirm the local registration authorities' decisions based on the Ministerial declarations because the declarations were not gazetted at the time of the original decisions.

The Court dismissed the appeal, concluding that the Tribunal was correct in its interpretation of the Act and the function of the Tribunal under the Administrative Appeals Tribunal Act 1975. The Court ordered that the appeal be dismissed and that the appellant pay the respondents' costs of the appeal.

Orders

Orders of the court

1. The notice of motion dated 12 November 2003 brought on behalf of the appellant seeking extension of time and leave to amend the notice of appeal be refused.

2. The appeal be dismissed.

3. The appellant pay each of the respondent’s costs of the appeal.

Background

Background to the litigation

The review is sought in terms of an amended application. However, as a consequence of matters arising in argument at the hearing of the appeal a notice of motion has been brought by the appellant seeking to further amend the application and seeking for extension of time in respect of filing and service of the notice of motion. These matters will be dealt with subsequently in these reasons.BACKGROUND CIRCUMSTANCES By an application dated 12 December 1997 the appellant made application to the first respondent for recognition pursuant to the Mutual Recognition Act 1992 (Cth) (‘the Act’) of his South Australian First-class Mine Manager’s Certificate of Competency, restricted to coal mines. On 17 December 1997 the appellant made an application to the Western Australian Board of Examiners for recognition of the same occupation exemplified by the South Australian First-class Mine Manager’s Certificate of Competency, restricted to coals mines. In the case of both applications the recognitions granted were restricted to a lower certificate of competency, namely, for only open-cut coal mines and no recognition was given to the equivalent South Australian registration so far as it covered underground and open-cut mining. The appellant therefore applied to the Tribunal for a review of these decisions which had been made on 13 January 1998 and 8 July 1999 respectively. The application in respect of Western Australia was the first to proceed. The Tribunal recommended that the application relating to New South Wales be adjourned to await the outcome in the Western Australian application on the understanding that it could be influenced by rulings in it. On 25 June 1999 the Tribunal set aside the Western Australian decision under review and in substitution decided that the appellant was entitled to be granted a First-class Mine Manager’s Certificate by the Board of Examiners under reg 2.21 of the Mines Safety and Inspection Regulations 1995 (WA), subject to the condition that such certificate be restricted to coals mines of any kind, including underground coal mines and open-cut coal mines, with effect from 17 January 1998. On 30 June 1999 the appellant applied to the second respondent for recognition of his First-class Mine Manager’s Certificate of Competency (Coal Mines) from South Australia. On 8 July 1999 the second respondent advised the appellant that he had been granted a Queensland Limited Mine Manager’s Certificate of Competency (Open-cut Coal Mines) and refused him a grant of registration with respect to underground coal mines. It stated that it did so because it considered that the meaning of coal mines as used on the South Australian Certificate, in the context of coal mining in that State, embraced open-cut coal mining only. On 16 July 1999 the appellant applied to the Tribunal for a review of the decision of the second respondent. An appeal was then lodged by the Western Australian Board of Examiners against the decision of the Tribunal made on 25 June 1999. As a consequence, the applications for review in respect of the New South Wales and Queensland decisions were adjourned to await the outcome of the decision on the appeal to the Full Court.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The role of the Tribunal in providing review is relevantly provided for in the following portion of s 34:‘34(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.(2)In subsection (1):Decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.…’ The Mutual Recognition (New South Wales) Act 1992 (NSW) and the Mutual Recognition (Queensland) Act 1992 (QLD) referred to the Commonwealth Parliament, to the extent they were not otherwise included in its legislative powers, such powers as were necessary for the proper enactment of the Act. The applications made by the appellant to the first respondent and to the second respondent applied in accordance with the mutual recognition principle, for registration in New South Wales and Queensland respectively in respect of the occupation relating to his First Class Mine Manager’s Certificate of Competency (Coal Mines). The applications did not specify what was the relevant State legislation under which the equivalence was to be found. The contents of the State legislation have played no part in the written or oral submissions relating to this appeal.REASONS OF THE TRIBUNAL After referring to the relevant background circumstances and the statutory environment and the content of the ministerial declarations, the Tribunal turned to what it described as a preliminary question of law, namely, the issue of whether Ministerial declarations made on 25 May 2001 and 25 August 2000, as subsequently published in the Gazette, affected the appellant’s application for review. The position it found was that the relevant Ministerial declarations had not been made and had not, therefore, come into force when the appellant lodged with each of the respondents the relevant notice under s 19 of the Act seeking registration for the equivalent occupation or when each of the respondents made its decision under s 20 of the Act in relation to that notice or when the appellant, pursuant to s 34(1), lodged with the Tribunal an application for review of those decisions by the respondents. This was because the Ministerial declarations had since been made and came into force on 3 April 2002 and 10 April 2002. Before the Tribunal the appellant submitted that in accordance with the mutual recognition principle, he was, by virtue of his registration in South Australia, entitled under s 20 of the Act to be registered in the equivalent occupation in New South Wales and in Queensland, namely, the occupation of first-class mine manger of coal mines (including open-cut and underground mines). He supported this by reference to the decision of the Full Court in Lawrence. He submitted that the relevant Ministerial declarations represented an attempt by the Ministers concerned to thwart the mutual recognition principle. The Tribunal found that the matter before it did not involve the repeal of any Commonwealth statutory provisions, regulations or disallowable instruments and accordingly ss 8, 46A and 50 of the Acts Interpretation Act 1901 (Cth) whereby rights accrued under the repeal provisions are preserved, were not applicable. Nevertheless, it accepted that the Ministerial declarations made under s 32(1) of the Act were ‘legislative in nature and have legislative effect’. It considered that it might therefore be arguable that in the absence of clear contrary legislative intent, those Ministerial declarations ‘ought not … to be understood as applying to facts or events that have already occurred in such way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events’: Maxwell v Murphy (1957) 96 CLR 261 at 267.

Ratio Decidendi

Legal Principle Established

I do not, therefore, consider this ground of appeal can succeed.WHETHER TRIBUNAL ERRED IN REGARDING ITSELF BOUND TO GIVE EFFECT TO MINISTERIAL DECLARATIONS The first contention under this ground is that the Tribunal erred in law in finding that s 30(1) and s 32(4) of the Act manifested a clear intention that effect was to be given by the local registration authority to a relevant Ministerial declaration under s 32(1) of the Act upon its being published in the Commonwealth of Australia Gazette notwithstanding that such declaration may affect an existing application pursuant to s 19 or pursuant to s 34(1) to the Tribunal for review. In the course of oral submissions it was submitted for the appellant that in the course of reaching its decision in relation to the appellant’s applications the Tribunal was obliged to not only consider the Ministerial declaration but also examine the evidentiary matrix concerning the activities in his particular occupation in order to form its view about equivalence. In support, reliance is placed on s 31(2). However, that subsection only comes into operation on a review conducted pursuant to s 31(1). Subsection 31(2) refers to on ‘such’ a review, which is a reference back to the prior subsection. When a Ministerial declaration is made there is no purpose in a tribunal acting pursuant to s 31 to carry out a review on the issue of equivalence. The case for the appellant seeks to support this by contending that s 32(4) should be read subject to the exercise of the power in s 31(2). There is no foundation for that submission. The regime of declarations established by s 32 exists independently of the regime of declarations resulting from enquiry by the Tribunal established by s 31. The making of a Ministerial declaration pursuant to s 32 renders otiose the same issue of equivalence arising in s 31. Attention is then directed to the provisions of s 30(3) preserving the right of a person already registered. I accept that s 30(3) does not do more than address the right of a person already registered. It does not provide any foundation for the contentions for the appellant concerning the application of s 31 and s 32. It was also contended for the appellant that there are exceptions to the proposition that the Tribunal is required to take into account the law as it stands as at the date of its decision. However counsel for the appellant was unable to support the submission by reference to any authority or to particularise the nature of the exceptions. It is also part of the appellant’s case that the Tribunal was wrong to reach the view that it can affirm a decision of a local registration authority (in this case those of the respondents) on the ground of the Ministerial declarations when those declarations were not gazetted either at the time of the original decision of the relevant local registration authority or until after the lodging of the appeal against those decisions. The Tribunal’s view that it was so entitled was based upon the provisions of s 32(4) of the Act. Such view was clearly correct in terms of the Act and in terms of the function of the Tribunal as determined by the Administrative Appeals Tribunal Act 1975 (Cth).