Lawson v Registrar of Motor Vehicles
[2017] SADC 36
•12 April 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
LAWSON v REGISTRAR OF MOTOR VEHICLES
[2017] SADC 36
Ruling of His Honour Judge Millsteed
12 April 2017
ADMINISTRATIVE LAW - JUDICIAL REVIEW
Appeal filed in the District Court of South Australia purportedly pursuant to s 98ZA of the Motor Vehicles Act 1959 (MVA), against a refusal by the Registrar of Motor Vehicles to review the revocation of the Appellant’s appointment as an ‘authorised examiner’ - interlocutory application filed by the Respondent for the appeal to be dismissed on the grounds that the Court does not have jurisdiction to hear the appeal – Registrar contends that decision to revoke was made under the definition of authorised examiner in s 5 of the MVA (Part 1 MVA) in which case no appeal lies - Respondent contends that decision to revoke was made pursuant to general power to administer the MVA as conferred on Registrar under s 7(1) in which case an appeal lies - whether definition provision can be used as more than an aid to construction.
Held: legislature had not shown a clear intent for definition to be used as source of power to revoke - interlocutory application dismissed.
Motor Vehicles Act 1959 s 98ZA, referred to.
Australian Broadcasting Commission Tribunal v Bond (1990) 170 CLR 321; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; San v Rumble (No. 2) [2007] NSWCA 259; Alaeddin v Registrar of Motor Vehicles [2011] SASC 72; Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, considered.
LAWSON v REGISTRAR OF MOTOR VEHICLES
[2017] SADC 36Introduction
Jonathon Lawson (the Appellant) has filed an appeal, purportedly pursuant to s 98ZA of the Motor Vehicles Act 1959 (MVA), against a refusal by the Registrar of Motor Vehicles (Registrar/Respondent) to review the revocation of the Appellant’s appointment as an authorised examiner under the MVA. This is a ruling on an interlocutory application filed by the Respondent that the appeal be dismissed on the grounds that the District Court of South Australia does not have jurisdiction to hear the appeal.
The issue which is determinative of this application is whether a decision to revoke the appointment of an authorised examiner is one made under s 5 (Part 1 MVA), as the Respondent contends, or s 7 (Part 2 MVA), as the Appellant contends. If the Respondent’s contention is correct, then, the Appellant’s only remedy lies in an application for judicial review to the Supreme Court of South Australia. If the Appellant’s contention is correct, then, the Appellant has a right of appeal to this court under s 98ZA of the MVA. For the reasons set out in this ruling, I am satisfied that the latter contention is correct and that the Respondent’s application must be dismissed.
Background
On 28 October 2015 the Registrar signed an Instrument of Appointment appointing the Appellant an authorised examiner for the purposes of the MVA. The Instrument of Appointment relevantly stated:
I, Julie Holmes, REGISTRAR OF MOTOR VEHICLES appointed by the Governor pursuant to section 7 of the Motor Vehicles Act, 1959 (“the Act”) hereby appoint from the date of this instrument:
JONATHAN DAVID LAWSON
Of: ……………………………………….
as an Authorised Examiner (“the examiner”) pursuant to section 5 of the Act subject to the following conditions: …
(my underlining)
On 22 March 2016 Mr Paul Gelston, a delegate of the Registrar, provided to the Appellant written notice that his appointment as an ‘authorised examiner’ had been revoked. The reasons for the revocation are not relevant to the present application.
On 21 April 2016 Mr Moran of Iles Selley Lawyers, the Appellant’s solicitors, wrote to the Respondent seeking a review of that decision under s 98Z of the MVA.
By letter dated 2 May 2016 Ms Clare Heathcote, Manager of Standards and Accreditation, Department of Planning Transport and Infrastructure (‘the Department’) on behalf of the Registrar responded to the Appellants’ solicitors’ letter and asserted that no review was available to the Appellant. The letter stated:
Section 98Z of the [MVA] states:
‘A person who is aggrieved by a decision of the Registrar under Part 2, 3, 3A, 3C or 3D may within 1 month of the making of the decision, apply to the Registrar for a review of the decision’.
Authorised Examiners are not appointed under Part 2, 3, 3A, 3C or 3D of the [MVA]. As such, a review pursuant to s 98Z cannot be undertaken.
However, should Mr Lawson wish to pursue a judicial review of the decision, he may make an application to the Supreme Court of South Australia.
…
On 18 May 2016 the Appellant’s solicitors wrote to Ms Heathcote and queried whether the Registrar was prepared to reconsider Mr Gelston’s decision.
By letter dated 24 May 2016 Ms Heathcote informed the Appellant’s solicitors that a review would not be undertaken.
On 2 June 2016 the Appellant made an application to this Court which sought to appeal both Mr Gelston’s decision of 22 March 2016 and the Registrar’s refusal to review that decision under s 98Z.
On 26 July 2016 the Respondent filed an application for the appeal to be dismissed.
The application came on for hearing on 1 November 2016. The Appellant was represented by Mr C. Handshin and the Respondent by Ms D. Seal.
Before canvassing the parties’ arguments it is necessary to refer to the legislative scheme under the MVA.
Statutory framework
The long title of the MVA is an ‘An Act to consolidate and amend certain enactments relating to the registration of motor vehicles, drivers licences and third party insurance, and for other purposes’.
The statute is divided into the following parts: Part 1 - Preliminary (ss 1-6); Part 2 - Registration of Motor Vehicles (ss 7-71B); Part 3 - Driver’s licences (ss 72‑98AAG); Part 3A - Motor driving instructors’ licences (s 98A); Part 3B - Demerit points scheme (ss 98AB-98BI); Part 3C - Towtrucks (ss 98D-98PG); Part 3D - Disabled persons’ parking permits (ss 98R-98X); Part 3E - Rights of review and appeal (ss 98Z-98ZA); Part 4 - Third party insurance (ss 99-134); Part 4A - Trials of automotive techniques (ss 134B-134M); and Part 5 - Supplementary provisions (ss 135-148).
The Registrar is authorised to administer the MVA pursuant to appointment by the Governor under s 7(1). Section 7 which is contained in Part 2 states:
Registrar and officers
(1)The Governor may appoint a Registrar of Motor Vehicles and such deputy registrars of motor vehicles as the Governor considers necessary for the administration of this Act.
(2)A deputy registrar may, subject to and in accordance with any directions given by the Registrar, act on behalf of the Registrar—
(a) during the absence of the Registrar;
(b) at any time in any matters allotted to the deputy registrar by the Registrar.
(4)The Registrar may delegate any of his or her powers or functions under this Act or any other Act to—
(a) a person for the time being occupying a specified office or position; or
(b) a specified person or specified body of persons that, in the opinion of the Registrar, has appropriate qualifications or experience to exercise the relevant powers or functions.
(5)A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated.
(6) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the power of the delegator to act in any matter; and
(d) is revocable at will by the delegator.
(7)A person to whom a power or function is delegated under this section must not contravene, or fail to comply with, a condition to which the delegation is subject.
Part 3 - authorised examiners and testers
Part 3 ‘Driver’s licences’ deals, inter alia, with the experience and fitness necessary for a person to obtain a driver’s licence, a learner’s permit or a provisional licence. For present purposes, it is necessary to refer to s 79A and other provisions relating to ‘authorised examiners’ and ‘testers’.
Section 79(1) provides that the Registrar may not issue a licence or learners permit to an applicant who has not held a licence during the period of five years immediately preceding the application. This is subject to two exceptions, one of which is that the applicant has produced to the Registrar a certificate signed by a ‘tester’ certifying that the applicant has passed the prescribed theoretical examination conducted by that tester in the prescribed manner: s 79(1)(a).[1]
[1] Section 79(2) states:
Regulations made for the purposes of this section may provide that, for the purposes of this Act, a person will not be regarded as having passed an examination unless the person has answered correctly not less than a prescribed number of questions asked in the examination (but, despite such a regulation, the Registrar may treat a person as not having passed an examination for the purposes of this Act if an incorrect answer has been given to a question dealing with a matter that, in the Registrar's opinion, is of special importance).
Section 79(3) contains the following definition of ‘tester’:
tester means—
(a)a police officer; or
(b)a person appointed by the Registrar as a tester for the purposes of conducting a theoretical examination for the purposes of this section.
Section 79A deals with the driving experience necessary for a person to obtain a driver’s licence. This is the only provision in the MVA which prescribes the function of an authorised examiner. The section relevantly states:
79A—Driving experience
(1)Subject to subsection (2), the Registrar must not issue a licence to an applicant who has not held a licence at some time during the period of 5 years immediately preceding the date of the application unless—
(a) the applicant—
(i) has held a learner's permit—
…
(ii) has produced to the Registrar a logbook that—
(A) is in a form approved by the Registrar; and
(B) has been completed in accordance with the instructions contained in the logbook so as to verify that the applicant has satisfied the prescribed requirements relating to the applicant's driving experience; and
(iia)has produced to the Registrar a certificate signed by a tester certifying that the applicant has, in the manner required by the Registrar, passed a hazard perception test conducted by the tester; and
(iii)has produced to the Registrar a certificate signed by an authorised examiner certifying that the applicant has passed a practical driving test conducted by the examiner; or
(b) the applicant satisfies the Registrar by such evidence as the Registrar may require that—
(i)the applicant has at some time during the period of 5 years immediately preceding the date of the application held—
(A) an interstate licence; or
(B)a foreign licence of a type approved by the Registrar by notice in the Gazette; or
(ii) the applicant—
(A)has at some time held a licence issued under this Act, an interstate learner's permit, an interstate licence or a licence issued under the law of some other place outside this State; and
(B)has obtained satisfactory driving experience.
(2) …
(3) If—
(a)an applicant for a licence has been disqualified from holding or obtaining a licence or learner's permit in this State, or in another State or Territory of the Commonwealth, as a consequence of an offence committed or allegedly committed (whether in this State or elsewhere)—
(i)while the person held a learner's permit or interstate learner's permit (provided the person did not also hold a licence or interstate licence in respect of another class of motor vehicle); or
(ii)after the expiry of such a permit but before obtaining any licence or interstate licence; and
(b)the applicant has held a licence or interstate licence at some time during the period of 5 years immediately preceding the date of the application but has not held a licence or interstate licence since the end of the period of disqualification,
the Registrar must not issue a licence to the applicant unless—
(c)the applicant has, since the end of the period of disqualification, held a learner's permit for a continuous period of at least 3 months; and
(ca) the applicant has produced to the Registrar a certificate signed by a tester certifying that the applicant has, since the end of the period of disqualification, passed a hazard perception test conducted by the tester; and
(d)the applicant has produced to the Registrar a certificate signed by an authorised examiner certifying that the applicant has, since the end of the period of disqualification, passed a practical driving test conducted by the examiner.
(4) In this section—
hazard perception test means a test approved by the Registrar as a hazard perception test for the purposes of this Act;
tester means—
(a) a police officer; or
(b) a person appointed by the Registrar as a tester for the purposes of conducting a hazard perception test.
(my underlining)
Pursuant to s 79A(1) the Registrar is not permitted to issue a licence or learners permit to an applicant who has not held a licence within the previous five years unless the applicant, among other things, produces a certificate signed by a tester certifying that the applicant has passed a hazard perception test and a certificate signed by an authorised examiner certifying that the applicant has passed a practical driving test. An applicant is also required to produce such certificates under s 79A(3) where the applicant has been disqualified from holding or obtaining a licence or learner's permit as a consequence of an offence committed in certain circumstances.
In contrast to the definitions of ‘tester’ and ‘hazard perception test’ which are set out in s 79A(4), the definitions of ‘authorised examiner’ and ‘practical driving test’ are located in s 5, the interpretation provision in Part 1. Those definitions are as follows:
authorised examiner means:
(a) A police officer appointed by the Commissioner of Police for the purpose of conducting practical driving tests; or
(b) A person appointed by the Registrar for the purpose of conducting practical driving tests; or
(c) A person appointed by some public authority, and approved by the Registrar, for the purpose of conducting practical driving tests.
(my underlining)
practical driving test in relation to a person applying for a licence, means a test approved by the Registrar as a practical driving test in relation to a class of licence to which the licence sought by the person belongs.
Section 80 provides the Registrar with power to require an applicant for a drivers licence or learners permit to undergo tests, or to furnish evidence, with respect to the applicant’s ability or fitness to drive and to refuse an application where there has been non-compliance with the section. The section does not refer to either an authorised examiner or a tester.
The section states:
80 - Ability or fitness to be granted or hold licence or permit
(1)If in the opinion of the Registrar it is desirable that the ability or fitness of an applicant for the issue or renewal of a licence or learner's permit, or of the holder of a licence or learner's permit, to drive a motor vehicle should be tested, the Registrar may require the person to undergo such tests or to furnish such evidence of ability or fitness to drive as the Registrar directs.
(1a)The Registrar may, with the approval of the Minister, direct that all applicants for the issue or renewal of a licence or learner's permit who are of a particular class must undergo such tests, or furnish such evidence as to ability or fitness to drive a motor vehicle, or a motor vehicle of a particular class, as the Registrar may require.
(2)Medical tests required by the Registrar under this section must be conducted in accordance with guidelines published or adopted by the Minister by notice in the Gazette and the results of the tests must be applied by the Registrar, in accordance with any policies published or adopted by the Minister by notice in the Gazette, in assessing the person's competence to drive motor vehicles or motor vehicles of a particular class.
(2a)If—
(a)a person fails to comply with a requirement of the Registrar under this section; or
(b)the Registrar is satisfied—
(i)after considering the results of tests or evidence required under this section; or
(ii)from information furnished to the Registrar by a health professional or from any other evidence received by the Registrar,
that a person is not competent to drive a motor vehicle or a motor vehicle of a particular class,
the Registrar may—
(c)refuse to issue a licence or permit to the person; or
(d)refuse to renew the person's licence or permit; or
(e)suspend the person's licence or permit for such period as the Registrar considers necessary in the circumstances of the case, or until the person satisfies the Registrar, in such a manner as the Registrar directs, that he or she is competent to drive a motor vehicle; or
(f)remove a classification from the person's licence, or substitute for a classification endorsed on the person's licence another classification.
(3)The Registrar may issue to any person who has been required to undergo tests, or to furnish other evidence of ability or fitness to drive a motor vehicle, a temporary driving permit authorising that person, subject to such conditions and restrictions as may be specified in the permit, to drive motor vehicles.
(4)A temporary driving permit has, subject to any conditions and restrictions specified in the permit, effect as a licence.
(5)…
Regulations
Regulation 93 of the MVA Regulations provides the Registrar with power to impose conditions on the tests performed by authorised examiners under s 80. The regulation states:
93 – Appointment of authorised examiners
(1) The Registrar, may, when appointing a person as an authorised examiner, or at any time by notice in writing to an authorised examiner, impose conditions limiting the kinds of tests that the authorised examiner may conduct as required by the Registrar under section 80 of the Act to assess the ability or fitness of applicants for the issue or renewal of licences and learner’s permits.
(2) The Registrar may, for the purpose of testing the proficiency of an applicant for appointment as an authorised examiner, require the applicant to undergo such tests (whether written, oral or practical) as the Registrar considers necessary.
(3) An applicant for appointment as an authorised examiner (other than an employee in the Transport Department) is not entitled to undergo a proficiency test required by the Registrar under sub regulation (2) unless he or she has paid the appropriate fees set out in Schedule 1 Part 1.
(my underlining)
As underlined above, the regulation provides the Registrar with power to impose conditions on the tests an ‘authorised examiner may conduct as required by the Registrar under section 80’. However, as mentioned, s 80 does not state that an authorised examiner may conduct tests the Registrar may require an applicant to undergo for the purpose of determining that person’s ability or fitness to drive. I will return to discuss the significance of this later.
Rights of review and appeal
There is no general right of appeal to the District Court against administrative decisions made under statutory authority or otherwise: see s 8(1) of the District Court Act 1991 (DCA). The Court sitting in its Administrative and Disciplinary Division only has appellate jurisdiction with respect to appeals against administrative decisions conferred on the Court by another Act: s 8(3) and s 42B DCA.
Rights of review and appeal are conferred in the MVA under Pt 3E, which relevantly states:
98Z – Review by Registrar
(1) A person who is aggrieved by a decision of the Registrar under Part 2, 3, 3A, 3C or 3D may, within 1 month of the making of the decision, apply to the Registrar for a review of the decision.
…
(6) On a review under this section, the Registrar may confirm or vary the decision under review or set aside the decision and substitute a new decision.
98ZA – Appeal to the District Court
(1) A person who is dissatisfied with a decision as confirmed, varied or substituted by the Registrar on a review under section 98Z may appeal to the District Court against the decision.
…
It is clear that a person may only appeal to this Court under s 98ZA where the person has applied for a review under s 98Z and is dissatisfied with the decision made under review. Reviews may be conducted only in relation to decisions made by the Registrar under Part 2, 3, 3A, 3C or 3D of the MVA. Accordingly, a person has no right of appeal to this Court with respect to a decision made by the Registrar which was not made under any of those Parts.
It should be observed that on the hearing of the present application the Respondent’s counsel accepted that s 98ZA should be construed so as to provide for a right of appeal where the Registrar has refused to review a decision under s 98Z. This construction is clearly correct. Section 98Z is a remedial provision providing for a review of administrative decisions made by the Registrar. Accordingly, no narrow view should be taken of the word ‘decision’.[2]
[2] See Australian Broadcasting Commission Tribunal v Bond (1990) 170 CLR 321at [29].
The issue
There is no provision in the MVA or the Motor Vehicles Regulations 2010 (MVA Regulations) which explicitly gives the Registrar power to appoint and to revoke the appointment of an authorised examiner. However, there is no dispute that the Registrar has such power. The existence of the power to appoint an authorised examiner is implied in s 79A and reg. 93.
By virtue of s 36 of the Acts Interpretation Act 1915 (SA),[3] this power must be taken to include power to revoke the appointment of an authorised examiner exercisable at the discretion of the Registrar. There is also no dispute that the Registrar’s power to revoke such an appointment had been validly delegated to Mr Gelston pursuant to s 7(4) of the MVA. What is in dispute is the source of the Registrar’s power.
[3] Section 36 of the Acts Interpretation Act 1915 (SA) states:
36 - Power to appoint includes power to remove etc
Words giving power to appoint to any office or position, or to appoint a deputy, will be taken to include power, exercisable at the discretion of the person in whim the power to appoint is vested-
(a) to suspend or remove any person appointed under the that power; or
(b) to reinstate or reappoint ay person so suspended or removed; or
(c) to appoint some other person, temporarily or permanently, in the place of a person so suspended or removed; or
(d) to appoint some other person, temporarily or permanently, to the office or position-
(i)where a person previously appointed is, for any reason, unable to carry out the duties of the office or position; or
(ii)where the office or position is vacant.
Ms Seal, counsel for the Respondent, submitted that the power is derived from the definition of authorised examiner in s 5. Accordingly, the decision to revoke the Appellant’s appointment was made under Part 1. Because the right to apply for review under s 98Z does not apply to decisions under that Part no appeal to this Court is available under s 98ZA, though judicial review of the decision may be pursued by application to the Supreme Court.
Mr Handshin, counsel for the Appellant, submitted that the Registrar’s appointment under s 7(1) to administer the MVA implicitly gives the Registrar the powers necessary to enable the Registrar to properly perform her functions, including the power to appoint and to revoke the appointment of an authorised examiner. In other words, the power is an aspect of the general power conferred on the Registrar to administer the MVA. Because s 7(1) is contained in Part 2, the decision to refuse to undertake a review under s 98Z gives rise to a right of appeal under s 98ZA.
Consideration
As stated at the outset, I accept the Appellant’s contention.
General principles
The primary principle of statutory construction is that a provision must be construed consistently with the language and purposes of the statute in question.[4] In Project Blue Sky Inc v Australian Broadcasting Authority in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ said:[5]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the units of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
(footnotes omitted)
[4] San v Rumble (No. 2) [2007] NSWCA 259 at [8].
[5] (1998) 194 CLR 355 at [69]-[71].
Alaeddin
The construction advocated by the Respondent was accepted by Gray J in Alaeddin v Registrar of Motor Vehicles.[6] Gray J dealt with an application to the Supreme Court for judicial review of a decision of a delegate of the Registrar to suspend the applicant’s authorised examiner endorsements on his Motor Driving Instructor licence. His Honour treated the suspension of endorsements as a decision to suspend the applicant’s appointment as an authorised examiner. The Appellant did not present his case on the basis that there was no statutory provision empowering the Registrar to suspend. However, Gray J considered that as a matter preliminary to the disposition of the application, it was necessary for him to identify the source of the power to suspend such an appointment. He concluded:[7]
I turn now to the Registrar’s submissions. Although it is problematic to rely on section 5 of the Motor Vehicles Act as the source of statutory power as section 5 is the interpretation section in the Act, I accept the Registrar’s submission that the definition of authorised examiner in section 5 implies that the Registrar has the power to appoint authorised examiners. The existence of such a power is recognised by regulation 93 of the Motor Vehicles Regulations, which relevantly provide: “[t]he Registrar may, when appointing a person as an authorised examiner ...”. In my view, it is implicit that Parliament intended for the Registrar to have a power to appoint authorised examiners. By virtue of section 36 of the Acts Interpretation Act, the power to appoint includes the power to suspend. In addition, it is my view that it is implicit that the power to appoint includes the power to set conditions and deal with necessary and incidental matters to the power of appointment. These matters, in the ordinary course, would deal with conditions of revocation, suspension and variation of the appointment.
Therefore, I am of the view that the suspension of the authorised examiner endorsements on Mr Alaeddin’s Motor Driving Instructor licence was not ultra vires.
(Footnote omitted)
[6] [2011] SASC 72.
[7] [2011] SASC 72 at [50]-[51].
It is not necessary to determine whether the views expressed by Gray J in relation s 5 represent part of the ratio decidendi in Alaeddin because, even if they do, the decision does not constitute a binding precedent, as Ms Seal conceded. As Gummow J said in Businessworld Computers Pty Ltd v Australian Telecommunications Commission:[8]
Stare decisis involves courts being bound by appellate decisions standing above them and in the same hierarchy.
[8] (1988) 82 ALR 499 at [55].
In accordance with that principle, a single judge of this court, whilst bound by a decision of the Full Court or the Court of Criminal Appeal, is not bound by a single judge of the Supreme Court. Of course, the decision of a single judge of the Supreme Court is of persuasive authority and requires careful attention.[9] In the present case, with considerable hesitation I feel obliged to depart from the construction of s 5 favoured by Gray J, noting that on the face of his judgment he may not have been assisted by argument in relation to s 7 constituting the relevant source of power.
[9] Engebretson v Bartlett (2007) 16 VR 417 at [54]-[56].
Definition provisions: general principles
As observed in Alaeddin, the Respondent’s reliance on s 5 as the relevant source of power is problematic. The general principle is that statutory definitions do not operate other than as an aid to the construction of the relevant statutory provisions. The function of a definition is not to enact substantive law.[10] In Gibb v Federal Commissioner for Taxation[11] Barwick CJ, McTiernan and Taylor JJ said:[12]
The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way.
[10] Kelly v R (2004) 218 CLR 216 at 253 (McHugh J).
[11] (1966) 118 CLR 628.
[12] (1966) 118 CLR 628 at 635; also see Randwick Municipal Council v Rutledge (1959) 102 CLR 54 at 69 (Windeyer J), Hurstville City Council v Hutchison (2003) 200 ALR 308 at [63] (Mason P).
However, as the High Court observed in Moreton Bay Regional Council v Mekpine Pty Ltd, ‘the general principle may be modified by a clear contrary legislative intent’.[13] A contrary intention may appear from context or legislative purpose.[14]
[13] (2016) 256 CLR 437 at [62] (French CJ, Kiefel, Bell and Nettle JJ).
[14] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [6] (French CJ).
No clear contrary intent
In my view, the MVA fails to show such a clear contrary intent; in particular, because there is no sound reason why s 7 cannot be construed as the source of power for the appointment of an authorised examiner. As Brennan J said in Johns v Australian Securities Commission:[15]
An authority conferred by statute is construed as authorising everything that can be fairly regarded as incidental to or consequential upon the authority itself.
[15] (1993) 178 CLR 408 at 428-429.
In AA v ACC[16] Finkelstein J summarised the relevant general principles as follows:[17]
Under the common law, where a statutory function is conferred upon a person there will (when it is necessary) be implied a power to do what is necessary for the performance of that function: Attorney- General v Directors of Great Eastern Railway Co (1880) 5 App Cas 473. It is not sufficient for the power to be desirable. The power must be necessary in the sense that without it the statutory function would not achieve its purpose: Ward v Metropolitan Police Commissioner [2005] 2 WLR 1114 at 1122.
[16] (2005) 219 ALR 666.
[17] (2005) 219 ALR 666 at 669.
The provision in s 79A for the carrying out of practical driving tests by authorised examiners would be frustrated if the Registrar did not have power to appoint authorised examiners. The power is necessary because without it, s 79A would fail to achieve its purpose. The only source of power is the Registrar’s implied power under s 7(1) unless the definition of authorised examiner is given a substantive operation inconsistent with general principles of statutory construction.
This construction agitated by the Appellant receives support from s 80 and regulation 93. As earlier discussed, regulation 93 provides the Registrar with power to impose conditions on the tests an ‘authorised examiner may conduct as required by the Registrar under section 80’. However, the section does not expressly state that an authorised examiner may conduct tests the Registrar requires to be conducted under that section for the purpose of determining an applicant’s ability or fitness to drive less still provide for the appointment of an authorised examiner for such purposes. Indeed, the section makes no reference to authorised examiner at all.
Regulation 93 implies that in addition to the function of conducting practical driving tests for the purposes of s 79A, the Registrar has the power to require an authorised examiner to conduct tests to determine the ‘ability or fitness of an applicant to drive a motor vehicle’ for the purposes of s 80. In my view, the section contemplates the Registrar may require tests which may not necessarily amount to a ‘practical driving test’ as defined in s 5, and as referred to in the definition of authorised examiner in s 5. If that is so, then the only possible source of power for the appointment of a s 80 authorised examiner lies in the general powers conferred on the Registrar pursuant to s 7(1).
Significantly, in my view, the construction contended for by the Respondent would produce a curious and illogical result. Authorised examiners and testers both perform tests for the purposes of s 79A which are intended to assist the Registrar to determine whether an applicant for a driver’s licence has sufficient experience and ability. As set out earlier, testers are defined in s 79A(4) to include a person appointed by the Registrar as a tester for the purpose of conducting a hazard perception test. No express power is given to the Registrar in the MVA or the regulations thereunder to make such an appointment.
On the Respondent’s argument, the definition of tester provides the relevant power. Thus revocation of a tester’s appointment constitutes a decision under Part 3 of the MVA, providing a right of review under s 98Z, and a right of appeal under s 98ZA, whereas an authorised examiner aggrieved by revocation of his or her appointment must pursue judicial review. Parliament could not have intended that testers and authorised examiners who perform similar functions under s 79A should be subject to dichotomous rights of review and appeal.
Respondent’s argument regarding legislative scheme
The Respondent argued that the legislature’s intention to give the definition of authorised examiner a substantive operation may be distilled from the legislature’s use of other definitions purportedly for substantive purposes. Ms Seal argued that this was a feature of the legislative scheme under the MVA. In particular, reliance was placed on the following:
·First, ‘practical driving test’ is defined in s 5 to mean a test approved by the Registrar. No provision has been made in the MVA or the MVA Regulations which explicitly gives the Registrar power to approve such tests though the existence of the power is recognised in s 79A.
·Secondly, s 81A(13) makes it an offence for the holder of a provisional licence under the age of 25 years to drive a ‘high powered vehicle’, an expression defined in s 5 as follows:
high powered vehicle means a motor vehicle:
(a)belonging to a class of vehicles prescribed by the regulations as high powered vehicles for the purposes of this Act; or
(b)of a kind included in this definition by the Registrar by notice in the Gazette,
but does not include a motor vehicle of a kind excluded from this definition by notice in the Gazette.
No provision has been made in the MVA or the regulations which explicitly gives the Registrar power to approve practical driving tests for the purposes of s 79A or to include in or exclude from the definition of ‘high powered vehicle’ certain kinds of motor vehicles for the purposes of s 81A(13). Accordingly, the Respondent argues, these powers must arise from the relevant definitions.
In my view, this argument is flawed because, as with the definition of authorised examiner, it wrongly assumes that the powers are not implied in s 7(1). It is necessary to imply the powers relating to practical driving tests and high powered vehicles to give effect to the legislative scheme. The definitions recognise the existence of those powers but s 7(1) implicitly provides them.
Ms Seal further submitted that it is significant that the legislature has determined that the rights of review and appeal under Part 3E only apply with respect to those decisions made by the Registrar which concern a person’s right to register a motor vehicle (Part 2), to obtain a licence or learners permit to drive a motor vehicle (Part 3), to obtain a motor driving instructor’s licence (Part 3A), to obtain a towtruck certificate (Part 3C) or to obtain a disabled person’s parking permit (Part 3D). By contrast, the rights of review and appeal under Part 3E do not apply to a decision made with respect to the demerits point scheme (Part 3B), third party insurance (Part 4), trials of automotive technologies (Part 4A) and supplementary matters (Part 5).
With respect to Part 5, Ms Seal placed particular emphasis on s 139 which relevantly states:
139 - Inspection of motor vehicles
(1) The Registrar, an authorised officer, a police officer or a person authorised in writing by the Registrar to examine motor vehicles in accordance with this section may –
(a)examine any motor vehicle for the purpose of –
(i)ascertaining any facts on which payment of any fee or payment to the Registrar in respect of the vehicle depends; or
(ii)verifying any information disclosed in an application made to the Registrar in respect of the vehicle or any evidence provided by the applicant in response to a requirement of the Registrar under this Act;
(ab) where an application to register, or transfer the registration of, a motor vehicle has been made, examine the motor vehicle for the purpose of ascertaining whether –
(i)the vehicle complies with an Act or law that regulates the design, construction or maintenance of such a vehicle; or
(ii)the vehicle would, if driven on the road , put the safety of persons using the road at risk; or
(iii)the vehicle or part of the vehicle is stolen;
(ac)where notice of the making of an alteration or addition to a registered motor vehicle is given, or required to be given, to the Registrar by a person under section 44, examine the motor vehicle for the purpose of –
(i)verifying the information disclosed in such a notice or any evidence provided by the person in response to a requirement of the Registrar under that section; or
(ii)ascertaining whether –
(A)the vehicle complies with an Act or law that regulates the design, construction or maintenance of such a vehicle; or
(B)the vehicle would, if driven on the road , put the safety of persons using the road at risk; or
(C)the vehicle or part of the vehicle is stolen;
…
(2) An authorisation to examine motor vehicles –
(a)may be subject to conditions; and
(b)may be revoked at any time.
…
The work to be performed by an examiner appointed under s 139 is relevant to an exercise of the Registrars powers under Part 2 to require the payment of a prescribed fee (s 20), to refuse to register a motor vehicle if the motor vehicle fails to comply with an Act or law that regulates the design, construction or maintenance of such a vehicle; or would, if driven on the road, put the safety of persons using the road at risk; or the vehicle or part of the vehicle is stolen (s 24(3)) and to require a person to give notice (s 44(1)) and evidence (s 44(1a)) of the making of any alteration or addition to a motor vehicle to be registered.
It is clear that a decision by the Registrar with respect to a person’s right to register a motor vehicle is, by virtue of its inclusion in Part 2, subject to review and appeal under Part 3E, while a decision by the Registrar under Part 5 to authorise, or to revoke the authorisation of, a person to examine a motor vehicle for Part 2 purposes is not covered by Part 3E.
Ms Seal submitted that the legislative scheme reflected an intention on the part of the legislature to make decisions made by the Registrar subject to Part 3E rights of review and appeal where they affected the rights of persons to register or drive motor vehicles or tow trucks and so on; whereas decisions made by the Registrar impacting on the appointment of authorised examiners for the purposes of s 79A, examiners for the purposes of Part 2, as set out above, and other third parties providing ‘underlying mechanics’ fell outside the scope of Part 3 E. It was submitted:[18]
MS SEAL: The rights of a person to drive, in essence, yes. The rights of a person to have a car registered, the rights of a person to obtain a licence to operate such a vehicle or, in the case of a tow truck driver, a certification to operate that vehicle on the road. That is the character of all of the decisions of the Registrar under Parts 2, 3, 3A, 3C or 3D of the Act to which the review rights in Part 3 apply. The rest of the decisions under the Act relate - dealt with the Registrar, relate to what I refer to as the mechanics underlying that. The persons who can undertake certifications, the types of tests that people need to undertake, extensions of time frame, material that has to be provided or doesn't have to be provided. Matters like that are the matters that are excluded from the review rights. The Respondent would submit that that is the nature of the right under Part 5, the discretions I pointed to. They support the mechanics, you need to have a person appointed as an authorised examiner to allow a driver to get a certificate. But that is not a matter for which the review applies here.
To the extent that a third party may be affected by those decisions in a way that is detrimental to them, there are, of course, potentially the rights of judicial review in that regard.
However, we would - the respondent would submit there is a clear distinction between the character of decisions that Parliament has determined should be subject to the merits review process or a review by the Registrar and then an appeal to this court -
[18] T 16-17.
This argument must be rejected. First, it is clear that the parts in the MVA subject to rights of review and appeal under Part 3E are not directed solely at the rights of drivers. As mentioned, Part 3 (s 79 and s 79A) provide for the appointment of testers by the Registrar to conduct theoretical examinations and hazard perception tests. The appointment and revocation of such appointments is subject to a right of review and appeal. Furthermore, Part 3A governs the issue of motor driving instructor licences. The Registrar has a discretion to grant such a licence (s 98A(2)) and upon such conditions as the Registrar thinks fit (s 98A(2a)). The Registrar’s decision under Part 3A affects only the right of a third party and would, on the Respondent’s argument, fall within the category of ‘underlying ‘mechanics’.
Secondly, it is clear that decisions may be made by the Registrar which affect the rights of a person to drive a motor vehicle are not subject to rights of review and appeal under Part 3E. For example, under Part 5:
·the Registrar may refuse to deal with any application under the MVA made by a person purporting to be an agent of the applicant in the absence of evidence that the agent was authorised to act on behalf of the applicant (s 135);
·the Registrar has a discretion to issue a new licence or learner’s permit bearing appropriate endorsements where the original licence or learner’s permit is not in a form allowing for an endorsement to be made varied or removed (s 139BB);
·the Registrar is vested with powers with respect to the service and commencement of notices of driving disqualification (s 139BD).
I do not think that this brief examination supports the Respondent’s argument that the legislature intended that decisions made by the Registrar should not be subject to review and appeal under Part 3E if they related to the appointment of third parties and the functions to be performed by them.
For these reasons expressed above I reject the Respondent’s contention that this court has no jurisdiction to hear the appeal.
Appellant’s alternative argument
The Appellant presented an alternative argument. In the light of my findings it is not strictly necessary to deal with it. However, in the event that this matter goes on appeal it is appropriate that I express my view on it. As I understood Mr Handshin’s argument, if the Registrar’s power to revoke the Appellant’s appointment in fact stemmed from the definition of authorised examiner in s 5, the decision made by Mr Gelston was effectively made under s 7(4) by reason of the Registrar’s power having been delegated to him under that provision.
I would reject that argument. Mr Gelston’s power to revoke the Appellant’s appointment would have remained an exercise of power derived from s 5. His delegation simply gave him the authority to exercise that power. If that were not the case, then, whether an authorised examiner has a right of review and appeal under Part 3E would depend, unacceptably, on whether the revocation of his or her appointment was made by the Registrar or a delegate of the Registrar. That cannot be right.
Orders
1Interlocutory application dismissed.
2Date for the hearing of the appeal to be fixed.
3I will hear the parties as to costs.
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