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 32Mines 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 consideredQUENTIN DERRICK LAWRENCE v COAL MINING QUALIFICATIONS BOARD (NSW) and BOARD OF EXAMINERS, DEPARTMENT OF NATURAL RESOURCES AND MINES (QLD)
W193 of 2002RD 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
APPELLANTAND:
COAL MINING QUALIFICATIONS BOARD (NSW)
FIRST RESPONDENTBOARD OF EXAMINERS, DEPARTMENT OF NATURAL RESOURCES AND MINES (QLD)
SECOND RESPONDENTJUDGE:
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
APPELLANTAND:
COAL MINING QUALIFICATIONS BOARD (NSW)
FIRST RESPONDENTBOARD OF EXAMINERS, DEPARTMENT OF NATURAL RESOURCES AND MINES (QLD)
SECOND RESPONDENT
JUDGE:
RD NICHOLSON J
DATE:
30 JANUARY 2004
PLACE:
PERTH
REASONS FOR JUDGMENT
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.
The first decision was…
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- Case
- [2004] FCA 37
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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).