Marin v The Chiropractic Board of Australia
[2015] SADC 119
•20 August 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MARIN v THE CHIROPRACTIC BOARD OF AUSTRALIA
[2015] SADC 119
Judgment of His Honour Judge McCusker
20 August 2015
ADMINISTRATIVE LAW
CONSTITUTIONAL LAW - PROCEDURAL LAW
Appeal from President's decision in Health Practitioners Tribunal to deal with matters by preliminary hearing under s15(4) - The referral contested by the appellant - President determines to reconsider and reverse the referral of jurisdictional matter owing to the absence of findings - Determines to proceed to form an opinion whether the national Law and s4(3) unconstitutional - Forms an opinion the legislation is constitutionally valid - Appellant appeals the determination to refer both the jurisdiction matter as well as the matter as to constitutional validity - Whether the President's decision an appealable decision pursuant to s23 of the National Law - Meaning of "decision" in this context - Whether error in referring the jurisdiction matter before the making of findings as to factual circumstances - Whether error in referring the constitutional matter for consideration - Whether an opinion amounts to a determination or order or is anterior thereto - Limits on the Tribunal to deal with constitutional matters - Tribunal not a Court - Circumstances in which Tribunal can form an opinion for the purpose of deciding the matters that can be litigated before it - Abrogation of the legislative power of Parliament in constitutional law - Whether s4(3) of the National Law constitutes abrogation - Appeal dismissed.
Health Practitioner Regulation National Law (South Australia) s3, s4, s15(4), s15(8), s23, s193, s196; District Court Act 1991 s42B, s42E, s42F; Australian Constitution s61, referred to.
Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; Allesch v Maunz [2000] HCA 40; Coal and Allied v Australian Industrial Relations Commission [2000] HCA 47; Zammit v Registrar of Firearms [2010] SADC 100; Soo v Physiotherapy Board of Australia [2015] SADC 30; Solution 6 Holdings Ltd and Others v Industrial Relations Commission of New South Wales and Others (2004) 208 ALR 328; Mobitelk (International) Pty Ltd v Dun & Bradstreet (Australia) Pty Ltd (1979) 22 SASR 288; Clisdell v Commissioner of Police (1993) 31 NSWLR 555; Daley v Hughes (2014) 86 NSWLR 729; Director-General of Social Services v Chaney (1980) 47 FLR 80; Owen v State of South Australia (1996) 66 SASR 251; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Metropolitan Water Sewerage and Drainage Board v Histon and Others [1982] 2 NSWLR 720; Rapson v WorkCover Corporation [2007] SASC 172; Bass v Permanent Trustee Co Ltd [1999] HCA 9; Ousley v R (1997) 192 CLR 69; Gelzinis v T & R (Murray Bridge) Pty Ltd [2009] SASC 61; R v Bleby, Johns and Lean; Ex parte the Royal Australian Nursing Federation - Australian Nursing Federation Employees Section (SA Branch) (1973) 4 SASR 445; Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; Qantas Airways Ltd v Lustig [2015] FCA 253; Sunol v Collier (2012) 81 NSWLR 619; Re Adams and The Tax Agents' Board (1976) 12 ALR 239; Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1; Hearne and Another v Street and Others (2008) 248 ALR 609; Re Boulton; Ex parte Construction, Foresty, Mining & Engineering Union (1998) 85 IR 468; Clarkson v Dent and Another (1998) 84 IR 250; Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443; Noakes and Another v Adams and Another (2002) 117 IR 94; The Medical Board of Queensland v Byrne (1958) 100 CLR 582; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; R v Medical Board of South Australia; Ex parte S (1976) 71 LSJS 246; Bonan v Hadgkiss [2007] FCAFC 113; Shire of Yarra Ranges v Russell [2009] VSCA 279; Attorney-General (NSW) v 2UE Sydney Pty Ltd and Others (2007) 236 ALR 385; The Commonwealth of Australia v The State of Queensland and Another (1975) 124 CLR 298; Craig v The State of South Australia (1995) 184 CLR 163; Brandy v Human Rights and Equal Opportunity Commission and Others (1995) 183 CLR 245; G Del Villar and F Nagorcka (2014) 88 ALJ 648; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 76 ALR 36; R v Kirby and Others; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254; Baldwin & Francis Ltd v Patents Appeal Tribunal and Others [1959] 2 All ER 433; In Re RGP Constructions Pty Ltd (In Liquidation); Ewing v Hallett Brick Industries Ltd (1982) 31 SASR 170; Rogers v Baillieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 594; Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police (2008) 234 CLR 532; K Generation Pty Ltd v Liquor Licencing Court [2009] HCA 4; Campbell v R [2008] NSWCCA 214; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; Broadbent v Medical Board of Queensland [2011] FCA 980; Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45; Postmaster-General v Corporation of Liverpool [1923] AC 587; R v Khazaal [2012] HCA 26; Samad Others v District Court of New South Wales [2002] HCA 24; Finance Facilities Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1971) CLR 106; Leach v R [2007] HCA 3; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73; Giris Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1969) 119 CLR 365; Capital Duplicators Pty Ltd and Another v Australian Capital Territory and Another (1992) 177 CLR 248; Gill v State Planning Authority (1979) 20 SASR 580, considered.
MARIN v THE CHIROPRACTIC BOARD OF AUSTRALIA
[2015] SADC 119Introduction
This appeal is brought by Dr Marin (“the appellant”) against the decision of the Tribunal constituted by the President sitting alone on a preliminary matter.
The Chiropractic Board of Australia (“the first respondent”), by complaint dated 16 June 2014 brought proceedings alleging professional misconduct or unprofessional conduct against the appellant. In his defence filed 21 August 2014, the appellant raised a number of jurisdictional difficulties with the proceedings. These were said to be the absence of evidence of a mandatory jurisdictional step, namely valid notice under s 193(2)(b) of Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (“the National Law”),[1] the invalidity of the transitional provisions in the National Law,[2] the abrogation of legislative power in breach of the Constitution Act (SA) 1934,[3] and for the same reason ultra vires by reason of s 61 of the Australian Constitution.[4] These points took a slightly different form in the course of argument before me. I have been guided by the way they have been presented at the hearing of the appeal.[5]
[1] Defence ground 1.1.
[2] Defence ground 1.2.
[3] Defence ground 1.3.
[4] Defence ground 1.4.
[5] Appeal tr p 92.
At a Directions Hearing held on 11 September 2014, the President listed those jurisdictional defences for preliminary hearing pursuant to s 15(4)(a) of the National Law. He did not specify which category of referral was involved, whether a “matter”, a “question of law” or otherwise. The order was made over the appellant’s objection. His counsel contended the matters should be dealt with as part of the substantive hearing.[6]
[6] [2015] SAHPT 1 at para [3].
The powers relied on by the Tribunal in s 15(4) of the National Law are as follows:
The Tribunal constituted of the person presiding over the proceedings may, sitting alone-
(a) deal with-
(i)preliminary, interlocutory or procedural matters; or
(ii)questions of costs; or
(iii)questions of law; or
(b) enter consent orders; or
(c) perform any other function or exercise any other power of a prescribed kind,
and may, for that purpose or as a consequence, while sitting alone, make any determination or order (including a final order) that the person considers appropriate.
The President’s Decision
At the preliminary hearing the appellant, apart from protesting the whole procedure of preliminary hearing,[7] advanced two cases on the proceedings. Firstly the absence of evidence that he had been given the requisite notice required by s 193 of the National Law which the appellant said was fatal to the complaint.[8] Secondly the incompetence of the Tribunal to exercise federal judicial power to decide the issues and in any event s 4(3) was an abrogation of the legislative power and therefore unconstitutional.[9]
[7] Preliminary hearing tr p 12.
[8] Judgment paras [6], [31], [32] and [33]; see Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486.
[9] Judgment paras [6], [8] – [15], [16] – [30].
The President resolved the first question by deciding that the matter be referred back to the Tribunal at the substantive hearing when the bench would be constituted by four members.[10] In other words he reversed the order that the issue be dealt with as a preliminary matter.
[10] Judgment para [34].
As to the second matter, having considered the construction of s 4 of the National Law and the arguments, the President preferred the construction contended by the first respondent and by the Attorney-General, over the appellant’s argument to the contrary. The President ruled:
40 In my opinion the provisions of s 4(3) do not (as contended for by the respondent) involve an impermissible delegation of the core constitutional functions of the Parliament of South Australia.
41 It is common ground that I am sitting as President of a Tribunal presiding over the proceedings.[11] As such I am not in a position to give a definitive answer to the question of constitutional validity.
…
43 It is my opinion that the National Law is valid. …
[11] Section 15 of the National Law.
The appeal to the District Court
The appeal, in its amended form, dated 2 June 2015, invoked s 23 of the National Law which states:
(1) An appeal lies to the District Court against a decision made by the Tribunal.
(2) An appeal against a decision of the Tribunal may be instituted by a party to the proceedings before the Tribunal.
(3) An appeal must be instituted within 1 month of the date of the decision appealed against.
The appeal is to the Administrative and Disciplinary Division of the District Court.[12] This effects the meaning to be given to the word “decision” where it appears in s 23 of the National Law. Section 23, by reason of s 3, adopts the definition of “decision” in s 42B of the District Court Act 1991 which is as follows:
"decision" includes an act (such as the giving or making of a notice, direction, determination, requirement or order) and a failure or refusal to make a decision or act.
[12] Section 3 of the National Law.
The appeal being to the Administrative and Disciplinary Division of the District Court ostensibly means it is an appeal by way of re-hearing.[13] And if so usually error must be shown in the decision or decisions appealed.[14] However those inferences are subject to the express constraints and powers found in s 42E and s 42F of the District Court Act 1991, which are as follows:
[13] Dwyer v Calco Timbers Pty Ltd [2008] HCA 13 at para [2], Allesch v Maunz [2000] HCA 40 at para [23], Coal and Allied v. Australian Industrial Relations Commission [2000] HCA 47 at paras [13], [14].
[14] Allesch v Maunz [2000] HCA 40 at para [44] per Kirby J.
Section 42E:
(1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal-
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.[15]
Section 42F:
The Court may, on an appeal-
(a) affirm the decision appealed against;
(b) rescind the decision and substitute a decision that the Court considers appropriate;
(c) remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
[15] Zammit v Registrar of Firearms [2010] SADC 100 at para [44].
Identifying the decision of the President
The first matter to be decided on this appeal is what constituted the “decision”. As stated a decision can include an act, notification, direction, determination, requirement or order and the failure or refusal of the same. In this it seems the answer is indicated by identifying what “decisions” or “decision” the appellant is complaining about.[16] He has consistently complained and objected to the decision to refer questions to a preliminary hearing independently of the cases advanced at that hearing regarding jurisdiction and constitutional invalidity. And that is evident also from the result.
[16] Submission at Appeal tr p 166.
Thus the primary matter the appellant complained of is the order of 11 September 2014 that certain matters be listed for preliminary hearing pursuant to s 15(4)(a). He contended this was misconceived. The appellant contended in addition that the decision to deal with the matter of whether he had been given the requisite notice under s 193 of the National Law, could not be dealt with by preliminary hearing as proposed.[17] The appellant further contended the Tribunal was incompetent to determine if s 4(3) of the National Law is constitutionally valid, whether at preliminary hearing or substantive hearing. Lastly, even assuming the Tribunal was competent to determine a constitutional issue, the conclusion the President reached on that matter was wrong. [18]
[17] Appeal tr p 54, Judgment para [34].
[18] Judgment para [43], Appeal tr p 79.
As may be immediately appreciated this is a peculiar circumstance. As indicated, when the order listing these matters for preliminary hearing was made on 11 September 2014, it was opposed by the appellant. When the matter came on before the President on 6 November 2014 Dr Gray, of counsel for the appellant, renewed the submission that the matters not proceed by way of a preliminary argument.[19] This was a live issue until judgment was handed down on 30 January 2015. That must be so because the President acceded to the argument so far as the notice under s 193(2)(b) was concerned.[20] In that sense the Tribunal made all its decisions on 30 January 2015. So I see no problem with the time for appealing in s 23(3) regarding the primary issue of referral of anything.
[19] Preliminary hearing tr pp 12, 13, 14, 16.
[20] Judgment para [34].
Requirements of an appealable “decision”
What constituted a “decision” for s 23(1) purposes was examined to an extent in the previous decision of Soo.[21] That analysis was essentially concerned with whether where “decision” is used in s 23, it was intended by Parliament to be restricted to such decisions as the Tribunal was empowered by the National Law to make in s 196.[22] Soo ruled that decisions beyond those contemplated by s 196 were intended. That conclusion has been accepted by all sides on this appeal.[23] The current appeal however raises a wider consideration, namely the limits of what constitutes a decision for any appeal to be competent.
[21] Soo v Physiotherapy Board of Australia [2015] SADC 30.
[22] Soo at paras [14], [15].
[23] Appellant’s Summary of Argument at para [5], Summary of Argument of the First Respondent at para [78].
In Solution 6 Holdings[24] consideration was given as to the meaning of the word “decision” by Spigelman CJ. His Honour remarked that the word is of a protean character and takes its colour from its context. Moreover cases interpreting the word in other statutory contexts while providing some guidance should be treated with care.[25] It is with that caution in mind I turn to the authorities.
[24] Solution 6 Holdings Ltd and Others v Industrial Relations Commission of New South Wales and Others (2004) 208 ALR 328
[25] Solution 6 Holdings at para [109].
In Mobitel International[26] the appellant had appealed under the Consumer Credit Act against a consumer report compiled by the respondent. When the appeal came before the Chairman of the Tribunal, the appellant asked, that before evidence was taken, the Tribunal hear argument as to whether a consumer report should be restricted to the company or whether it was permissible to include the credit worthiness of the persons associated with it. The Chairman decided that question. Under the legislation, the Chairman was the only Member able to determine questions of law but there was no equivalent to s 15(4). The decision that resulted was partial only as the Chairman posed a number of scenarios which might need further submissions before the issue was able to be resolved. No judgment other than this ruling was delivered.
[26] Mobitel (International) Pty Ltd v Dun & Bradstreet (Australia) Pty Ltd (1979) 22 SASR 288.
Section 25(1) of the Consumer Credit Act allowed an aggrieved party to appeal to the Supreme Court. On the appeal the respondent argued the appeal was incompetent. That contention was upheld. Walters J, on behalf of the Court, decided the matter upon statutory interpretation. He said that if Parliament had intended an appeal should lie from the Chairman’s determination of a preliminary question of law then it would have given that right of appeal by express language in the same way it had empowered the Tribunal to state a case upon any question of law for the opinion of the Supreme Court under s 24(1). His Honour regarded the vesting of the Chairman with power to determine any question of law in the absence of the other Members of the Tribunal “avoided the use of any language or any form of procedure … which would involve a determination … of a question of law simpliciter being brought before this Court on review”. So it was the specific power to refer questions of law to the Supreme Court which negated, in his Honour’s view, any entitlement to appeal a preliminary decision on a question of law.
Walters J also expressed the opinion that a ruling of the Chairman of the Tribunal on a question of law did not fill the character of a “decision or order” of the Tribunal. It was merely part of the judicial process invoked in order to decide the issues arising on an appeal before the Tribunal in contra distinction to a decision or order of the Tribunal that determines the substantive rights of the parties litigating the appeal. Until the Tribunal had made a decision or order, the determination of the Chairman on a question of law had an “inchoate” effect only. It is to be noted here that, the Health Practitioners Tribunal, when dealing with a question of law may refer “the question” for the opinion of the Full Court.[27] But that under s 15(4) the President is empowered to make a “determination or order”, including a final order. For the latter reason Mobitel in my view is distinguishable.
[27] Section 15(8).
In Clisdell[28] a right of appeal was limited to one against any decision of the Tribunal on a question of law. In addition to rejecting Constable Clisdell’s demand that her absences from work were work caused, the Tribunal added a “recommendation”. Clisdell appealed submitting the Tribunal had no power to make the recommendation.
[28] Clisdell v Commissioner of Police (1993) 31 NSWLR 555 per Sheller JA.
Sheller JA, with whom the other Members of the Court agreed, stated his opinion in the following terms:[29]
An appeal from a decision of a court is from an order or other judicial act which affects adversely the rights claimed by the appellant party. It is not an appeal from a pronouncement by the court of an opinion upon a question of law; Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 624, per Lord Porter, delivering the judgment of the Privy Council. It is directed to modifying or reversing the action of the court appealed from. “Decision” may not have the same connotation in the context of curial power to review an administrative decision. Even so, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338, Mason CJ quoted with approval the tentative opinion expressed by Ellicott J, in Ross v Costigan (1982) 59 FLR 184 at 197; 41 ALR 319 at 331 that the word “decision” means an ultimate or operative determination not a mere expression or opinion or a statement which can of itself have no effect on a person. The Chief Justice said that he would not wish for himself to place emphasis on the words “of itself” in this statement.
[29] At p 558.
The decision then considered whether a condition precedent to an appeal was the existence of a real, even though voidable, decision. Sheller JA made the following remarks:[30]
… The respondent seeks to isolate the recommendation from that decision and argues that if the recommendation was beyond power it was void and, ex hypothesi, not a decision. I would dispose of this argument in the same way that the Privy Council disposed of the similar argument in Calvin v Carr. The recommendation cannot be considered as totally void in the sense of being legally non-existent. So to hold would be unreal. … Even if it is legitimate to isolate the recommendation from the rest of the tribunal’s decision as the respondent contends the recommendation was not, in the language adopted by Mason CJ in Australian Broadcasting Tribunal v Bond, a mere expression of opinion or a statement which can have no effect on a person. The recommendation as part of the tribunal’s reasons for decision to disallow Constable Clisdell’s appeals to it under s 48 was a decision against which an appeal lay to this Court under s 54 if the decision was on a question of law.
Clisdell’s appeal was allowed.
[30] At pp 559, 560.
In Daley’s case[31] the circumstances concerned a litigant requiring a costs assessment of her former solicitor’s costs. The assessor issued “draft reasons” proposing a particular approach to the assessment. The litigant appealed against that “decision” of the costs assessor. The Act conferred a right of appeal without leave from a decision of a costs assessor as to a matter of law and a right of appeal with leave against a determination made by a costs assessor. The appeal was ruled incompetent. The draft reasons did not constitute a decision.[32]
[31] Daley v Hughes (2014) 86 NSWLR 729.
[32] Per Meagher JA at para [3].
Meagher JA observed the relevant Act, the Legal Profession Act 1987, made no provision permitting a costs assessor or panel to make a separate decision as to any question of law or provide a right of appeal in relation to the making of such a decision. In the absence of this, a view reached by an assessor on a question arising in the determination of the costs assessment application did not take on the character of a decision having an effect between the parties until a binding determination was made. Until then it remained an expression of opinion or intention which might be altered or abandoned.[33]
[33] At para [9].
The Court in Daley followed the decision of Deane J in Chaney.[34] Chaney concerned s 44(1) of the Administrative Appeals Tribunal Act 1975 which gave a right of appeal on questions of law from any decision of the Administrative Appeals Tribunal. The term “decision” was defined in s 3(3) of that Act to include a myriad of different actions which Deane J aptly described as including a reference to a litany of activities of both positive and negative nature culminating in doing or refusing to do any other act or thing. This extension of the term “decision” in s 3(3) was commented on by Deane J as follows:
… The provisions of s 3(3) would seem more apposite to define a reference to the substantive "decision" of the original decision maker than to confine the scope of a reference to a "decision" of the Tribunal upon review. Subject to that qualification, the specific activities mentioned in the definition in s 3(3), which are in the nature of effective action rather than intermediate "decision" on the path to such action, provide some indication that a reference to "decision" in the Act is, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination. The indication which s 3(3) provides to that effect is, however, slight.
[34] Director-General of Social Services v Chaney (1980) 47 FLR 80.
In Chaney Deane J noted the Tribunal had not at the relevant stage purported to make any determination disposing of the application for review which had been made to it, all that had happened was that it had made a ruling on a preliminary question of jurisdiction and it had made an interim order pending the determination of the application for review. Furthermore if an appeal could be brought at any intermediate stage of the proceedings that would involve disruption of the proceedings before the Tribunal for complex procedural and documentation reasons.
Deane J’s decision in Chaney was limited to whether the topics within the preliminary hearing were appealable decisions. The point made by Dr Gray, of counsel for the appellant, is that the concern with the decision to refer is a matter distinct from the topics within the referral and any decisions regarding those topics.
To provide additional appreciation of the reasoning of Deane J the following remarks are instructive:
… All that has happened is that the Tribunal has made a ruling on a preliminary question of jurisdiction and has made an interim order pending the determination of the application for review. The preliminary ruling did no more than assert the Tribunal's authority to embark on the hearing and determination of the review on the merits and the interim order, if validly made, was "for the purpose of securing the effectiveness of" that hearing and determination (s 41(2)). It may be that further information placed before the Tribunal as the hearing proceeded may have led the Tribunal to alter its views on the question of jurisdiction or to revoke or vary the interim order which it had made. In these circumstances, the question which arises under the first issue is whether the grant to the Court of jurisdiction to hear and determine an appeal on a question of law "from any decision of the Tribunal" is restricted to an appeal from a decision of the Tribunal which effectively disposes of an application for review or whether the "decision" in respect of which such an appeal may be entertained by the Court has a wider meaning such as, for example, to include any decision or ruling expressed or made by the Tribunal as a preliminary to, or in the actual course of, the hearing of the proceeding before it. The answer to that question depends upon the meaning to be given to the word "decision" in s 44(1) of the Act. …
(The emphasis is mine.)
As an examination shows s 3(3) of the Administrative Appeals Tribunal Act as examined by Deane J contained in the extended meaning of “decision” the descriptors being “act”, the “making … or refusing to make … an order or determination”, the “giving or refusing to give a direction” and “making a … requirement”. There is a clear point of comparison between the provision in the Administrative Appeals Tribunal Act and the provision in s 42B of the District Court Act.
I note the point made by Dr Gray[35] that Deane J qualified his conclusion in the following passage which she contended had application to the case before me:
The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act. The qualifications referred to are an appeal pursuant to s 44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent "decisions" may properly be given.
As has been said, the ruling that the Tribunal had jurisdiction to hear the application for review simply asserted the Tribunal's jurisdiction to continue to hear the application on the merits. That ruling did not effectively dispose of the proceedings or any independent part thereof. …
(The emphasis is mine.)
[35] Appeal tr p 166.
I note Dr Freckleton QC, of counsel for the first respondent, while contending the appeal incompetent, there being no appealable decision,[36] accepted the matter required a case by case approach and that this was allowed in those observations of Deane J in Chaney. It is clearly the case that Deane J in his reasons conducted a qualitative examination of the particular “decision” relied on. Moreover it is the case that some cases involving a clear preliminary point which would save the parties from a long hearing, might be lost at first instance and yet be allowed on appeal, to the advantage of the parties and the justice of the matter. On the other hand the circumstances referred to by Deane J of constant appeals would result in the work of the Court being frustrated. That is leaving aside any aspect that might be dealt with under the power to prevent an abuse of the Court’s processes.
[36] Summary of Argument of the First Respondent para [81].
The second reading speech to the Bill for the enactment of the District Court (Administrative and Disciplinary Division) Amendment Act 2000[37] and which inserted s 42B provides minimal indication of the intent of the legislation but is a permissible consideration.[38] In the second reading the Honourable the Attorney-General K T Griffin stated:
The purpose of these appeals is to permit a person, who is affected by a decision of government about his or her affairs, to have the decision reviewed by the Court. The government does not propose any change to this fundamental purpose, nor to the substance of the appeal intended, but seeks to amend the legislation creating such appeals to make the nature of the appeal as clear as possible to the users of the process and to the Court.
Because these appeals have been created statute by statute over several decades, the wording which defines the nature and scope of the appeal in each case can vary considerably from one Act to another, even though the substance of the Court’s inquiry is intended to be the same. …
The reality is that it is the same appeal which is intended. What is intended is a review of the administrative decision, with a discretion to receive new evidence and a broad power to decide differently. …
If anything it appears to me to point towards a restrictive construction of s 42B but is hardly determinative of that.
[37] Act No 4 of 2000.
[38] Owen v The State of South Australia (1996) 66 SASR 251.
Was there an appealable “decision”?
The jurisdiction exercised by the President was s 15(4). That provides a discretion to deal with preliminary matters, as well as interlocutory or procedural matters. It also permits the Tribunal to deal with questions of law. Once that procedure is embarked on, the Tribunal is enabled to make a determination or order (including a final order). There is no other power given to the Tribunal.
The question of whether it is an appealable decision is to be determined separately from the question of whether any such decision ought to be departed from for “cogent reasons”. I therefore deal first with whether it is of a type amounting to an appealable decision.
Apart from the statutory dictates, an appealable decision requires an act adversely affecting the rights of the appellant.[39] Generally the term means the ultimate or operative determination.[40] But it is not limited to the final dispositive resolution.[41] Moreover the approach is to regard the decision as an entirety and the part or parts constituted by opinion cannot be isolated from that entirety. In this regard an opinion can have an adverse effect.[42] The exercise is an evaluative process as to what constitutes “effective action”.[43]
[39] Sheller JA in Clisdell.
[40] Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
[41] Metropolitan Water Sewerage and Drainage Board v Histon and Others [1982] 2 NSWLR 720.
[42] Sheller JA in Clisdell.
[43] Per Deane J in Chaney.
Dr Gray contended the referral should not have happened. It was a decision which remained operative to 31 January 2015 when in part it was confirmed and in part reversed. The decision to refer was an act that adversely affected the rights of the appellant in a permanent way.
In Rapson’s case[44] White J, with whom the other Members of the Court agreed, dealt with the issue of questions referred in the context of the case stated procedures.[45] In that case his Honour stated the limitations on the case stated mechanism as distinct from dealing with a matter by way of preliminary hearing in the following terms:[46]
… It cannot be used to have this Court give mere advisory opinions, or to answer questions which are hypothetical, or which, if they are to have any application in the case giving rise to the referral, depend upon further findings of fact. The answers on the case stated must be capable of determining the rights and liabilities of the parties, or at least of resolving an intermediate step in the determination of those rights. …
[44] Rapson v WorkCover Corporation [2007] SASC 172.
[45] Section 86A Workers Rehabilitation and Compensation Act 1986.
[46] At para [11].
In Bass[47] the Court dealt with the circumstances where questions of fact remained open on the referral and said:[48]
… Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. … Courts have traditionally declined to state – let alone answer – preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.
[47] Bass v Permanent Trustee Co Ltd [1999] HCA 9
[48] At para [49]
In this case at all times the appellant has strenuously resisted the referral. The law in my view supported his position and constrained the way in which the discretion given to the President ought to be exercised. Once the appellant had a right he was entitled to insist on it and there would be both tactical and cost implications that were important to him which he lost when his opposition was overruled. In my opinion that would satisfy the requirement that the decision adversely affected the rights of the appellant. It is reasonable to conclude that it had that operative effect.
The decision was partially reversed and corrected or cured. But the other part proceeded. The other part of it, the determination of the constitutional issue, was arguably only opinion. But that could not be isolated from the whole decision to refer. It was an element in a conclusive act which the appellant is entitled to argue adversely affected his rights and had the requisite operative effect. It seems to me the decision of 11 September 2014 was an appealable decision. It remained so when confirmed, even if only partially, on 31 January 2015. Its innate requisites had not altered. In my conclusion the decision relied on by the appellant satisfies the requirements.
These conclusions are the same in my opinion whether the referral was of a “preliminary matter” or, as Dr Gray says, of a question of law. It is undoubtedly a difficult question but I conclude, an appealable decision existed and the proceedings before me are competent.
Jurisdiction
I start by considering the context and nature of the case advanced by the appellant before the Tribunal to appreciate how the President dealt with the matter referred. It is helpful to reiterate what was generally involved in the proceedings before him. In this case, the challenge made before the President was a collateral challenge and taken at the outset of the proceedings. In Ousley’s case[49] McHugh J said:
A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision. In In re Preston, however, Lord Scarman used the term "collateral challenge" to include any process challenging a decision - including an application for judicial review - other than a proceeding by way of appeal. This use of the term is readily intelligible. However, with the widespread availability of judicial review procedures, it conduces to clarity of thought, in my opinion, if the term "collateral challenge" is confined to challenges that occur in proceedings where the validity of the administrative act is merely an incident in determining other issues.
[49] Ousley v R (1997) 192 CLR 69 at 98-99
The appellant’s plea denied the Tribunal’s power to hear and determine the complaint because of the absence of requisite steps. On such a collateral challenge the onus is on the complainant to establish the pre-requisites of the legislation. An alternative approach might have been to seek judicial review on proceedings seeking a declaration in the Supreme Court. That course of action was not followed.[50] Also relevant for these purposes, particularly as they relate to the establishment of jurisdictional facts, are the provisions in s 18 of the National Law and s 42E(2) of the District Court Act 1991.
[50] Gelzinis v T & R (Murray Bridge) Pty Ltd [2009] SASC 61 at paras [21], [22]
It is helpful to add the remarks of Wells J in R v Bleby[51] as follows:
… It is, of course, true to say that, speaking generally, the word “jurisdiction” means the authority which a court or other tribunal has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. Courts such as the High Court in England and the Supreme Courts in Australia (subject to limits imposed with respect to federal matters) are usually said to have an unlimited jurisdiction; a limitation of a court’s jurisdiction may be imposed either as to the kind and nature of the matters of which it may take cognizance, or as to the geographical area which jurisdiction shall extend, or as to both such modes of restriction. But the jurisdiction of an inferior court or tribunal to whom mandamus, prohibition or certiorari may go, may be more extensively circumscribed, and, for the purpose of demarcating its limits, legislatures in England and in this country have, for very many years, adopted the only practicable means of doing so by indicating, expressly or by necessary implication, that certain facts must exist before the tribunal referred to may proceed with the hearing of a matter on the merits in pursuance of the purpose for which the tribunal was created. It has become conventional to refer to such a form of demarcation by saying that the legislature may provide that, before a tribunal has the authority to take cognizance of a particular matter or class of matters, certain facts, collateral to the issues on the merits, must be proved.
No stereotyped form of drafting has ever been prescribed, or become settled, whereby passages specifying the collateral facts to be proved may be rendered clearly distinguishable from those denoting the matters for determination on the merits. …
In order to determine what (if any) collateral facts have been designated as essential to the jurisdiction, the legislation must be carefully analysed.
(The emphasis is mine.)
[51] R v Bleby, Johns and Lean; Ex parte the Royal Australian Nursing Federation – Australian Nursing Federation Employees Section (South Australian Branch) (1973) 4 SASR 445 at 461, 463
Clearly a power exists for the Tribunal constituted of the President to deal with collateral issues as preliminary “matters” or “questions of law” and make any determination or order (including a final order) as he may consider appropriate.[52] But, as I have indicated, the appellant’s argument is that the exercise of that discretion was not at large and in the given case was wrongly exercised by the President. The jurisdictional fact concerning whether or not there was due notice under s 193(2)(b) required a fact finding process. The appellant also argued the constitutional matter was not something that could be dealt with by the Tribunal as it was not a court.[53] Both the first respondent and the Attorney conceded it was not a court. The appellant’s argument was that as a state tribunal, the Health Practitioners Tribunal is incapable of answering a question of constitutional validity because it requires the exercise of Commonwealth judicial power.[54] This meant the constitutional invalidity argument ought not to have been referred either.
[52] S 15(4).
[53] C.f. Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; Qantas Airways Ltd v Lustig [2015] FCA 253.
[54] Sunol v Collier (2012) 81 NSWLR 619. See Appeal tr pp 8, 24, 38.
I understood the appellant to ultimately confine his argument regarding the error of the referral to an erroneous referral of the issue of constitutional validity.[55] In that regard the contention was that the only way the Tribunal could consider the constitutional validity was in the manner described by Brennan J, the then President of the Administrative Appeals Tribunal, in Re Adams and The Tax Agents’ Board.[56] That is as an incidental assumption in the process of deciding that which the Tribunal is actually charged with deciding under the relevant legislation.[57] In particular the appellant contended s 15(4) could not be used to provide an opinion. In part because it specifically talks of making a “determination or order”.[58]
[55] Appeal tr p 39.
[56] (1976) 12 ALR 239 at 241.
[57] Appeal tr pp 159, 160, 162.
[58] Appeal tr pp 33, 35.
A further argument was advanced namely that the President had formed the view he was required to deal with these matters “in limine”.[59] If so he was in error. Moreover, so the argument went, it was never defined what part of s 15(4) was invoked, whether it was a “preliminary matter” or a “question of law” that was being dealt with.[60] The appellant sought to reinforce this argument by pointing to the lack of draft orders in respect to the preliminary matters indicative of some confusion both as to the process and as to what were the matters being referred.[61] All these points were made to overturn the decision to deal with the matters or questions at a preliminary hearing.
[59] Appeal tr p 12.
[60] Appeal tr pp 13, 17, 33.
[61] Preliminary Hearing tr p 71, Appeal tr pp 24, 37, 54.
The exercise of discretion under s 15(4)
Consideration of the appellant’s argument is hampered by the lack of reasons for referring the matter for preliminary hearing. Not that I think there were in the circumstances an obligation on the President to give reasons when he made the order and such a contention was never advanced before me by the appellant.
In Bray’s case[62] the proceedings concerned a claim for damages for breach of s 45 of the Trade Practices Act regarding cartel arrangements relating to vitamin products. The respondent sought to set aside the initiating processes disputing both the jurisdiction and whether the plaintiff had a prima facie case for relief. Merkel J ruled that it was not appropriate to determine the jurisdiction application as a preliminary question given the need to make findings bearing on that question.[63]
[62] Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1.
[63] At paras [174], [200].
In the course of considering the matter His Honour made the following remarks:
185Shin Kobe Maru[64], Gray[65] and Adamson[66] are not authority for the proposition that the Court is under a duty to determine its jurisdiction as soon as that matter is raised, irrespective of any inconvenience or inappropriateness attendant on doing so at that stage.
186The timing issue was considered by Katz J in Khatri v Price [1999] FCA 1289 at [14] where his Honour observed:
"Because any Australian court is a court of limited jurisdiction, its `first duty', when there has been a purported invocation of its jurisdiction, is to satisfy itself that it has the jurisdiction purportedly invoked: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; (1911) 12 CLR 398 at 415 (Griffith CJ). In making his well-known statement, Griffith CJ gave, as a reason for the existence of such a `first' duty, `if only to avoid putting the parties to unnecessary risk and expense'. That reason appears to imply that the duty is one which must be fulfilled `first' in the sense that the court concerned must determine the question of its jurisdiction before hearing any evidence or argument on issues which would arise in the proceeding if it did have the jurisdiction purportedly invoked. However, in spite of that reason having been given by Griffith CJ, the duty has not been generally understood to be `first' in that sense. The duty has been generally understood instead as permitting the court concerned to exercise a discretion (subject, obviously (if the court is not the High Court), to appellate or supervisory review, whichever is appropriate) to postpone determining the question of its jurisdiction until after it has heard the whole case, provided, however, that having done so, it then `first' determines that question."
187In my view the Court is not under a duty to forthwith determine if it has jurisdiction to proceed with the hearing of the present proceeding as soon as that was raised as a bona fide issue. In the usual course a court must satisfy itself that it has jurisdiction in the proceeding but the time at which it does so is a matter for the court. In many cases it may be desirable for the court to deal with the jurisdictional issue as a preliminary issue but it is not under an unqualified duty to do so. Ultimately, it is for the court to determine, in interests of the justice, the time at which and the manner in which a jurisdictional issue is to be determined.
(The emphasis is mine.)
[64] [1994] HCA 54.
[65] [1985[ HCA 67.
[66] [1979] HCA 6.
In Hearne’s case,[67] a case relied upon by the first respondent, the proceedings concerned contempt charges relating to implied undertakings upon discovery. In the course of his decision Kirby J stated:[68]
As all parties recognised, the issue of the competency of the residents' appeal to the Court of Appeal raised a question of jurisdiction. It involved the permissibility of further proceedings following the primary judge's determination. It is conventional for courts to deal with matters of jurisdiction at an initial stage, for, without jurisdiction, other issues fall away. If there is no jurisdiction, a court normally has no business entering into arguments about any substantive or procedural questions, except perhaps the consequential disposition of costs.
Thus, as the judges in the Court of Appeal recognised, the objection to the competency of the appeal, whilst requiring some attention to the evidence and a proper understanding of the factual background to the proceedings, raised a threshold or primary question to be resolved before all others.
(The emphasis is mine.)
[67] Hearne and Another v Street and Others (2008) 248 ALR 609.
[68] At paras [17], [18].
Boulton’s case[69] concerned applications for an order nisi for constitutional and other writs and concerning the non-allowable award matters provided for in the Workplace Relations Act 1996. The prosecutor contended that the variations proposed by the Senior Deputy President would have the result of removing certain rights earlier won by conciliation and arbitration.[70] It argued that was beyond constitutional power on the basis of s 51(xxxi) of the Constitution. Kirby J said in respect to the constitutional argument:[71]
In point of principle, it would seem to me, the Constitution being part of the law of the land, that if a constitutional challenge to the jurisdiction of a court or tribunal is available, it ought to be taken as soon as practicable and before that court and tribunal concerned. Every court or tribunal in this country must, where objection is taken to its jurisdiction, determine that objection as a preliminary question. If it has no lawful jurisdiction it may not assume that it has and it ought not to pretend that is has. I find it difficult to see how resolution of the issue can properly be avoided when it lies at the threshold of the proceedings.
(The emphasis is mine.)
Kirby J ordered that the issues be determined in the High Court.
[69] Re Boulton; Ex parte Construction, Forestry, Mining & Engineering Union (1998) 85 IR 468.
[70] At para [11].
[71] At paras [18] - [20], [22],
On the other hand, in Clarkson’s case[72] the appellant appealed against the dismissal of her unfair termination application. It was dismissed on the grounds of lack of jurisdiction, as the Commission determined the appellant was not an employee. The Commissioner had resolved that issue as a preliminary point on the basis of documentary material but absent any oral evidence.
[72] Clarkson v Dent and Another (1998) 84 IR 250.
The Full Bench of the Industrial Relations Commission of New South Wales stated:[73]
This appeal raises yet again the difficulties which arise in determining an issue, even of a jurisdictional nature, at the threshold rather than during the substantive proceedings when all relevant facts are available to enable the final determination to be made. The position here was compounded in that the facts and what should be inferred therefrom were sharply disputed and no witnesses were called to properly assist the commissioner to make findings in all the circumstances. Indeed, having reviewed the material on what occurred at first instance, and on hearing counsel fully on the appeal, we are satisfied that the proceedings before the commissioner miscarried. …
Their Honours cited remarks supportive of their approach made by Kirby P, as he then was, in the Majik Markets.[74]
[73] At p 250.
[74] Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443.
In Noakes case[75] the proceedings sought an order declaring void contractual arrangements between the parties on the grounds of unfair contract. The respondents filed a Notice of Motion seeking that the Industrial Relations Commission in Court Session rule it did not have jurisdiction. Marks J dismissed the respondents’ motion. He stated:[76]
Also of significance is the approach to be adopted in determining questions of jurisdiction at a preliminary stage. The relevant principles have been set out in a recent judgment of a Full Bench of this Court in Euphoric Pty Ltd v Ryledar Pty Ltd [2002] NSWIRComm 136. I refer in particular to the judgment of the President and Vice President of this Court at paras 8 to 14. I am not satisfied that this is an appropriate time at which to determine this issue having regard to the observations of the Full Court decision in Nagle v Tilberg (1993) 51 IR 8 at 10 to 12 referred to in their Honours' judgment. That is I am not satisfied that the respondents are in a position at this stage of the proceedings to clearly demonstrate that this Court lacks jurisdiction to deal with the matter.
[75] Noakes and Another v Adams and Another (2002) 117 IR 94.
[76] At para [16].
In my view, when matters of fact need to be resolved, the approach that should be taken is that described by Merkel J in Bray’s case. As Merkel J said there, it is a matter of judgment in the particular case. I infer Kirby J in Boulton concluded a different approach in the case of constitutional challenges. But that would be because such cases usually have no need of factual findings.
I think it must be said on the basis of these cases that so far as it involved the referral of the s 193 point the President was clearly in error. Indeed two things flow from the reversal by the President of his earlier order. Firstly that he thought better of the initial approach given the need to find an adequate matrix of fact. Secondly his reversal indicates he did not approach the exercise of his powers under an erroneous impression that he was mandated to deal with jurisdiction matters as preliminary issues. That also deals with the appellant’s argument that once referred he had to decide the point. He did not. He could, as he did, reverse the effect of his decision to deal with the jurisdiction contention as a preliminary point.
As it was specifically addressed, I note the two letters said to constitute the Notice dated 9 January 2014 and 24 June 2014. No doubt the letters will be a mainstay in the argument advanced by the appellant before the President when the matter resumes. So too will be the contention of the first respondent that this Notice requires nothing more than what was done. On this argument, the notice is not a condition of jurisdiction. Section 193(2)(b) on that argument involves a mechanical step and not one to be complicated by unwarranted strictures that are not implied in the legislation, nor by references to the rules of natural justice which do not operate in these circumstances.[77]
[77] Summary of Argument of the First Respondent paras [64], [71], The Medical Board of Queensland v Byrne (1958) 100 CLR 582 at 594, 595; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at paras 42] and [44]; cf R v Medical Board of South Australia; Ex parte S (1976) 71 LSJS 246.
But in any case these considerations belong to the President on the matter referred back.[78] Leaving aside the fact that the matter of the initial referral is no longer in dispute by reason of the President’s order and therefore a moot point before this Court at best,[79] it is not for me to do anything that might interfere with his task in this regard. That includes whether or not the parties might refine the nature of the contest by filing draft orders.[80]
[78] Summary of Argument of the First Respondent Outline paras [58] – [61].
[79] Bonan v Hadgkiss [2007] FCAFC 113 at 8; Shire of Yarra Ranges v Russell [2009] VSCA 279 at 18, 20, 21, 22.
[80] The appellant’s submissions in this regard at appeal tr pp 45, 46, 47, 49, 51, Appellant’s Summary of Argument at paras [38] – [41], footnote no 46.
Referring a Constitutional issue
The appellant argued that s 15(4) of the National Law could not be engaged to resolve a constitutional issue.[81] Most particularly this was because the provisions gave the President limited power. That is to deal with the matters by “determination or order” not by “opinion”.[82] Moreover despite the insistence of the President that the Tribunal was not in the position to give a definitive answer to the question of constitutional validity[83] and the result was limited to an opinion, as a matter of characterisation this was in every regard a decision.[84] To suggest the matter remained reversible during the hearing was in the circumstances not tenable.[85]
[81] Appeal tr p 25.
[82] Section 15(4).
[83] Judgment para [41].
[84] Appeal tr p 26.
[85] Appeal tr p 80.
In 2UE[86] a complaint was lodged for homosexual vilification to the Equal Opportunity Division of the Administrative Decisions Tribunal (NSW). The complaint was upheld. 2UE was ordered to broadcast an apology and costs were ordered. The radio station appealed arguing that the provision in the Anti-Discrimination Act contravened the constitutional immunity for political speech. Moreover the Tribunal did not have jurisdiction to hear or determine a question arising under the Commonwealth Constitution or involving its interpretation. The New South Wales Court of Appeal declared the Tribunal had no jurisdiction to determine whether the provisions of the Anti-Discrimination Act should be read down so as not to infringe the constitutional implications of freedom of communication in political matters.
[86] Attorney-General (NSW) v 2UE Sydney Pty Ltd and Others (2007) 236 ALR 385.
The Tribunal presided over by a District Court Judge had referred two preliminary questions. These were whether the Tribunal was a court for the purposes of s 39 of the Judiciary Act and accordingly competent to decide matters arising under or involving the interpretation of the Commonwealth Constitution. Alternatively whether the Tribunal was competent to consider any question of law relating to its jurisdiction. Before the Court of Appeal it was accepted the Tribunal was not a court. Therefore the case decided only the second question.[87]
[87] 2UE at paras [5], [6], [7].
Spigelman CJ who wrote the principle decision noted the common agreement with the expression of the rule by Brennan J, then President of the Administrative Appeals Tribunal, in Re Adams and The Tax Agents Board[88] in the following terms:
It follows that neither the Tribunal nor the Board can give a definitive answer to the question of Constitutional validity. It is one thing to deny to the Tribunal and the Board the power definitively to answer the question; it is another thing to deny their competence to consider and to reach an opinion on the question. An opinion formed by an administrative body on such a question does not, however, produce any effect in point of law. It is incapable of adding to or subtracting from any authority, or purported authority, conferred by the challenged statute. It is incapable of affecting any legal requirement as to the exercise of an authority actually conferred upon the administrative body. … An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal affect.[89]
[88] Above cited.
[89] Per Spigelman CJ in 2UE at paras [33], [34].
Spigelman CJ went on to note this dicta provided the Tribunal authority to consider the constitutional immunity and interpret the relevant sections in conformity with that immunity. While he expressed some hesitation with that dicta, he affirmed the ability of the Tribunal in the case before him to pursue such a course.[90] His decision then proceeded on the effect of s 31 of the New South Wales Interpretations Act.[91] That provision gave a directive that legislation be construed so as not to exceed the legislative power of Parliament.
[90] At para [37].
[91] At para [38].
His Honour then noted the effect of s 39(1) of the Judiciary Act was to remove from state courts any jurisdiction with respect to matters arising under or interpreting the Constitution whether the jurisdiction was to be found in state jurisdiction or federal jurisdiction. The federal jurisdiction of state courts and the jurisdiction to decide matters arising under the Constitution or involving its interpretation depended solely on s 39(2) of the Judiciary Act.[92] Clause 5 of the Constitution had no continued effect with respect to decision makers who are not state courts.[93] His Honour went on:[94]
Section 39(1) removes jurisdiction from courts. It does not speak in any way to the exercise of powers by tribunals who have what is often conveniently described as a “jurisdiction”, but which word does not signify the same kind of power. Federal jurisdiction, in the sense of the exercise of the judicial power of the Commonwealth, cannot be exercised by a tribunal as a manifestation of the executive arm of Government, whether of the Commonwealth or of a state. That restriction arises by reason of the text and structure of the Constitution, including particularly the strong doctrine of separation of powers arising from Ch III of the Constitution. It does not turn, in my opinion, on s 39(2) of the Judiciary Act.
[92] At paras [49], [50].
[93] At para [51].
[94] At para [55].
His Honour reached a conclusion that ultimately this was an exercise of judicial power and in particular an exercise of the judicial function. That includes the function of advisory opinion. That was not to be confused in any way with the “opinion” referred to by Brennan J in Re Adams’ case.[95] This conclusion was reached solely on the basis of the application of the decision in Brandy.[96] That was because the enforcement of the orders by certification upon filing in the Supreme Court operated as a judgment of the Court.[97] Indeed in reaching that result the Chief Justice expressly rejected the contention that merely forming a view on jurisdiction involved making a determination on constitutional issues in a manner binding on the parties or which involved the exercise of federal jurisdiction or federal judicial power.[98]
[95] See The Commonwealth of Australia v The State of Queensland and Another (1975) 134 CLR 298 at 327, 328 per Jacobs J; Craig v The State of South Australia (1995) 184 CLR 163 at 179.
[96] Brandy v Human Rights and Equal Opportunity Commission and Others (1995) 183 CLR 245.
[97] 2UE at para [64].
[98] 2UE at paras [70], [75], [76], [80]. See G Del Villar and F Nagorcka (2014) 88 ALJ 648.
In Sunol,[99] the proceedings involved four questions of law referred to the Full Court by the Tribunal again regarding statements published by Mr Sunol which allegedly vilified homosexual people contrary to the Anti-Discrimination Act. A conciliation agreement had been reached between the parties but purportedly breached and the offended party, Mr Collier, sought to register the agreement. The constitutional validity of provisions of the Anti-Discrimination Act were then put in issue. The Tribunal proceeded, assuming its limitations on constitutional matters but notwithstanding, that it could refer the same as a question of law.[100]
[99] Above cited.
[100] At para [6]
The decision commenced with a summary of the rules as they related to tribunals and in the following terms:[101]
Federal jurisdiction is the authority exercised by a court to determine an issue in federal juridical power. A matter will involve the exercise of federal judicial power if, for example, one party has a defence which owes its existence to a law of the Commonwealth Parliament: LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575 at 581. The resolution of any matter arising under the Constitution or involving its interpretation will constitute an exercise of federal judicial power: British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; 217 CLR 30. Once such a matter is identified, the whole of the jurisdiction being exercised by the court is federal jurisdiction: Felton v Mulligan [1971] HCA 39; 124 CLR 367 at 373. Accordingly, the applicable law must be that identified under Commonwealth law: it may be a State law picked up and applied by a Commonwealth law, such as ss 79 and 80 of the Judiciary Act 1903 (Cth). However, such provisions operate only in respect of federal jurisdiction being exercised by a court of a State or Territory.
The Tribunal is not a court for the purposes of s 77(iii) of the Constitution, and therefore is not the recipient of powers conferred by Commonwealth statutes effecting an investiture in accordance with that provision: Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; 66 NSWLR 77. However, it does not follow that the powers and authority conferred on the Tribunal by State law in some way evaporate immediately an issue is raised in a case, as to, for example, the Constitutional validity of a provision of the State law under which a claim has been made. Pursuant to covering cl 5 of the Constitution Act 1902 (NSW), the Tribunal is bound by the Constitution. If the law is invalid, it is not invalid because a court has declared it to be such: it is invalid because a "pretended law made in excess of power is not and never has been a law at all": South Australia v The Commonwealth [1942] HCA 14; 65 CLR 373 at 408 (Latham CJ). As his Honour continued, "[a]nybody in the country is entitled to disregard it".
If the Tribunal is persuaded that a State law is invalid and cannot support a claim, it may decline to grant relief. Alternatively, it may grant relief, in which case the unsuccessful party may disregard the order or, more prudently, take steps to have the order set aside. In this respect, the decision of the Tribunal is, like the decision of an administrative official, effective only to the extent that it has understood the law correctly. …
[101] At paras [7], [8], [9].
The Court then went on to examine the 2UE decision. It concluded that, although the Tribunal must take account of constitutional limitations, in accordance with covering clause 5 of the Constitution Act, it did not follow that such questions, “arise in an appeal before it, nor that it has power to refer such questions to the Supreme Court”. The better view was that the questions did not arise in the appeal because they were not matters in respect of which it had jurisdiction under the Administrative Decisions Tribunal Act.[102] The Court then went on to state:[103]
Contrary to the suggestion in Radio 2UE at [76], a decision of the Tribunal in respect of a particular matter may depend upon a view about the constitutional validity of State legislation, but that opinion is not registered as a judgment, nor is it enforceable as such against any person. If the opinion led the Tribunal to decline to make an order, the unsuccessful party might challenge that result by seeking in the Supreme Court an order in the nature of mandamus, or a declaration as to the constitutional validity of the law sought to be enforced. If the Tribunal makes an order, on the basis that the law was indeed valid, the other party, being unsuccessful, could challenge the order by seeking to have it set aside on the ground that the law which supported it was constitutionally invalid. In each case, the Tribunal acted on the basis of an opinion as to the validity of the law in question, but its decision was not in any legal sense determined by that opinion. It did not have jurisdiction to determine the question: the validity of the order will depend upon the conclusion of the Supreme Court (and if challenged, the High Court) as to the correct answer to the constitutional question.
(The emphasis is mine.)
[102] At para [19]
[103] At para [20]
It seems to me that this approach characterised the Administrative Decision Tribunal (NSW) Act as administrative and subject at all times to the ultimate supervision of the Supreme Court. As such its conclusions were effective only to the extent that it had understood the law correctly.[104] The Sunol decision again has been subject to criticism.[105] But it is important authority permitting state tribunals to take into account constitutional questions when construing state legislation. It is authority I follow in this matter.
[104] Sunol at para [9]
[105] G Del Villar and F Nagorcka (2014) 88 ALJ 648 at 565, 657
As I raised with counsel in argument that the navigation of constitutional minefields by bodies exercising administrative power is well described in industrial jurisprudence.[106] In Re Ranger Uranium[107] the Union notified the Conciliation and Arbitration Commission of a dispute between it and the company due to the purported summary dismissal of seven workers. By s 24 of the Act the Commission was required in proceedings relating to an industrial dispute to “determine whether there is an industrial dispute and if so, who are the parties and what are the matters in dispute and record its findings”. The Union’s contention was for a variation of the Award by inserting new provisions reinstating the dismissed employees. The Commissioner concluded he had no jurisdiction in the matter and the Union eventually sought an order nisi for mandamus.
[106] Appeal tr p 3
[107] Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 76 ALR 36
The key contest in argument is described in the following passage:[108]
… Thus the only question which arises is whether the dispute notified is capable of resolution by the exercise of the powers of conciliation and arbitration conferred upon the Commission by s 18 of the Act.[109] …
It was contended on behalf of the company, both before the Commission and in this court, that the dispute notified required for its resolution the exercise of the judicial power of the Commonwealth and was thus a dispute which the Commission was not empowered to entertain.
It is clear that reinstatement may be claimed as a legal right or as a remedy for breach of a legal obligation. Section 5 of the Act is illustrative of situations in which reinstatement is a curial remedy for the breach of a legal obligation. A dispute as to the existence or enforcement of a legal right to reinstatement or as to the breach of a legal obligation properly remedied by an order for reinstatement is a dispute which necessarily involves the exercise of judicial power. In conformity with s 71 of the Constitution (which reposes the judicial power of the Commonwealth in Chapter III Courts), the Commission is not endowed with judicial power, and hence has no jurisdiction to entertain disputes as to the existence or enforcement of legal rights or obligations: [authorities omitted].
[108] Re Ranger at pp 40, 41
[109] “to prevent or settle industrial disputes by conciliation or arbitration”
The dispute was properly viewed as a claim for the creation of an obligation on the part of the employer with the creation of new rights and obligations, a clear exercise of arbitral power. While it was contended the resolution of the dispute necessarily involved the determination of whether the dismissals were harsh, unjust or unreasonable and that in turn involved a determination of whether the employer was in breach of the Award, it did not thereby involve an exercise of judicial function, even though it was precisely the same task as undertaken by the Court when determining a breach of the Award pursuant to s 119 of the Act. The Court stated the critical difference in the following passage:[110]
Inquiry into and determination of facts for the purpose of ascertaining what rights and obligations should be brought into existence in settlement of an industrial dispute does not cease to be an exercise of arbitral power merely because, in the course thereof, the Commission may form an opinion as to the existing legal rights and obligations of the parties. As was pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 61 ALJR 401 at 409, the formation of an opinion as to legal rights and obligations does not involve the exercise of judicial power, at least if it is "a step in arriving at the ultimate conclusions on which [is based] the making of an award intended to regulate the future rights of the parties". For, as was there made clear, "the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights."
(The emphasis is mine.)
[110] At p 43.
In my view the approach as set out in Sunol, replicates the approach taken in the Conciliation and Arbitration Commission. That is that the matter of constitutional validity was upon examination assumed, or not. The parties could resolve those issues if they remained determinative by means of a prerogative writ. That was despite powers in s 107 of the Conciliation and Arbitration Act 1904[111] which allowed the Commission to refer questions of law to the then Australian Industrial Court for opinion. Referral by this means was only one of a number of avenues that could be resorted to.
[111] See 8th Edition updated to 1.2.84.
It seems to me that the fact that the Tribunal cannot make a binding determination on constitutional questions, whether within the substantive hearing or as a preliminary point, is equivalent to the Commission in Ranger being unable to make a binding decision. In each case the exercise has a different purpose from the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist or are deemed to exist at the moment the proceedings are initiated. It is merely the “factum” upon which the Tribunal proceeds but one subject to correction by an appropriate forum.[112]
[112] R v Kirby and Others; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 at 281.
In the case before me on appeal the President dealt with the quandary in the following terms:[113]
The way forward is clear namely that the Tribunal should evaluate whether the fundamental propositions raised by the respondent as to the invalidity of the National Law have any merit. If the conclusion is reached that there is no merit in the argument put forward by the respondent then the matter should proceed in the normal way. Should the respondent disagree with that course they have the opportunity to approach the Supreme Court for remedy. If on the other hand an opinion is reached that the National Law is invalid then the Attorney or the complainant have a similar recourse to the Supreme Court.
It seems plain that the President adopted the Sunol approach to the matter.
[113] Judgment para [12].
I disagree with the contention that, despite his reasoning indicating the contrary, the President dealt with the matter by a decision of a judicial character. In my conclusion such a contention must be rejected. In Baldwin & Francis,[114] Lord Denning stated the rule that I accept in the following terms:[115]
… It has long been decided that “where a reason is assigned as the foundation of a judgment, all presumption or intention that the court went upon better grounds is excluded”: see Burn’s Justice of the Peace (30th Edn) Vol V p 374. That statement rests on the authority of Lord Mansfield himself, supported by Willes and Buller JJ, who sat beside him: see R v Upton Gray (Inhabitants); and if it is correct, as I think it is, it forbids us from presuming that the judge took alternative (D) into account.
[114] Baldwin & Francis Ltd v Patents Appeal Tribunal and Others [1959] 2 All ER 433.
[115] At p 447.
Finally I do not regard the power of the Tribunal in s 15(4) to “determine or order” as preventing a consideration of the constitutional validity. The situation is that having formed the “opinion” the President may order the matter to proceed or not at the substantive hearing. Much the same was the ultimate result in Ranger.
The cogency of the referral
It is not necessary to reiterate the points I have already made about the discretion under s 15(4). These are covered above and by the discussion of the authority of Rapson’s case. I find the remarks referred to by me there as binding in my consideration of what the President did.
There is at least one obvious purpose of the provision in s 15(4). That is to deal with a matter for the more efficient resolution of the contest albeit in the given case the contest involves an administrative process as distinct from a judicial process.[116] Earlier decisions of the Court are to the effect that the procedure of raising and determining a matter as a preliminary point should only be resorted to when, whichever way it is decided, it will be conclusive of the whole matter.[117] But that does not appear to be current practice. Rather it seems based upon efficiencies of disposal and the saving of time and cost.
[116] Bass v Permanent Trustee (above cited) at para [51].
[117] In Re RGP Constructions Pty Ltd (In Liquidation); Ewing v Hallett Brick Industries Ltd (1982) 31 SASR 170 at 172 per Walters J; see also Rogers v Baillieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 594.
In my conclusion the constitutional issue is a “matter” that can be included within the description of a preliminary matter in s 15(4). Moreover it is apt to describe it as dealing with a question of law though not deciding the question of law. The matter is one the Tribunal must consider to discharge its function and this is borne out by cases like Ranger Uranium. Whether it has the desired effect of saving the parties time and money and tending to efficiencies is not contingent on whether it is a judicial determination or an opinion and falling within this lesser category.
I therefore conclude it was a matter that could be dealt with as a preliminary matter so long as resolved within the limits of the powers of the Tribunal. I have pointed to apparent deficiencies in the President’s approach to the referral but these are not in the circumstances cogent reasons to depart from the end result. Had the President referred the Constitutional matter alone, given that it can be dealt with without evidence, I would not have regarded the initial referral in error. So the result is the same given the s 193(2)(b) point has been returned to the substantive hearing.
The interpretation of section 4
The parties both before the President and before this Court agreed that the constitutional issue was dependant on a construction of the Act and in particular s 4 of the Act.[118] In Gypsy Jokers the Court stated the correct approach as follows:
The first step in the making of that assessment of the validity of any given law is one of statutory construction. So far as different constructions appear to be available, a construction is to be selected which would avoid rather than lead to a conclusion of constitutional invalidity [authorities omitted]. …[119]
[118] Appeal tr p 58, Summary of Argument of the First Respondent para [24.1], Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police (2008) 234 CLR 532 at para [11].
[119] The appellant relied on the decision of K Generation Pty Ltd v Liquor Licencing Court [2009] HCA 4 at para [46] which is to the same effect.
The President indicated he preferred the construction of the legislation advanced by the first respondent and rejected that advanced by the appellant. Section 4(3) in his opinion did not involve an impermissible delegation of the core constitutional functions of the Parliament of South Australia.[120] He stated in the following terms:[121]
A reading of s 4 of the National Law is a clear articulation that in effect the Queensland law is South Australian law. The power of the Governor is simply to insert a Schedule into the Act which sets out the National Law. This the Governor is enabled to do pursuant to s 4(3). It is something that is very limited and something that is precisely identified. It is not that the Governor can do anything that the Governor would like to do. It is essentially a mechanical provision. It cannot be construed as the provision of a law making facility to an unelected official. It is simply the power to incorporate something within a Schedule or by a Schedule in the law. What is being orchestrated by the legislature is a mechanism by which there can be harmony between state laws and there is no vagueness or licence given to the Governor.
[120] At paras [36], [40], [43]
[121] Para [27]
The provisions to be examined are as follows:
4—Application of Health Practitioner Regulation National Law
(1) In this section—
South Australian Health Practitioner Regulation National Law text means—
(a) until a regulation is made under subsection (3)—the text set out in the schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland as in force on 1 July 2010;
(b) thereafter—the Health Practitioner Regulation National Law (South Australia) set out in the Schedule inserted under subsection (3) (as in force for the time being).
(2) The South Australian Health Practitioner Regulation National Law text—
(a) applies as a law of South Australia; and
(b) as so applying may be referred to as the Health Practitioner Regulation National Law (South Australia); and
(c) as so applying, forms a part of this Act.
(3)In connection with the operation of subsections (1) and (2), the Governor may, by regulation, insert a Schedule into this Act that sets out the Health Practitioner Regulation National Law (South Australia).
(4)If, after the commencement of this section, the Parliament of Queensland enacts a provision to make an amendment to the schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland, the amendment does not apply in South Australia but the Governor may, by regulation, modify the Health Practitioner Regulation National Law (South Australia) text to give effect to that amendment as a law of South Australia.
(5)The Governor may, as part of any regulation made under subsection (4), make any additional provision (including so as to modify the terms of an amendment that has been made by the Parliament of Queensland or to provide for related or transitional matters) considered by the Governor to be necessary to ensure that the amendment made by the Parliament of Queensland has proper effect under the law of South Australia.
(6)A regulation made under this section may, if the regulation so provides, take effect from the day of the commencement of an amendment made by the Parliament of Queensland in that State (including a day that is earlier than the day of the regulation's publication in the Gazette).
(7)Section 10 of the Subordinate Legislation Act 1978 does not apply to a regulation made under subsection (3) (but will apply to any subsequent regulation making a modification under this section).
The appellant contended the construction was indicated by the progression of the provisions. Firstly until regulation was made in subsection (3) the text of the Queensland Act in force on 1 July 2010 was the law. Superseding this would be the Schedule inserted under subsection (3). Each would alternatively constitute the National Law text. But critically the Governor, “may, by regulation insert a schedule into this Act that sets out” the text. It was this provision that the appellant said constituted the abrogation.[122]
[122] See Appellant’s Summary of Argument paras [22], [23], [24], [25].
In particular the appellant contended the impermissible provision was a Henry VIII clause.[123] That is a grant to the Executive exemplified by the Statute of Proclamations 1539 (repealed in 1547) by which Henry VIII was given wide powers to legislate by proclamation. It was contended by the appellant s 4(3) mimicked this in vesting in the Governor the power to make any law by regulation. A vesting of such breadth must be beyond power. No allowable construction, and certainly not the one contended by the President’s reasons, could avoid that result on a plain reading of the provision.[124]
[123] Appeal tr pp 70, 72.
[124] See Appeal tr pp 55, 58, 62, 63.
The key, as I understand, to the appellant’s argument is that what constitutes the Schedule in s 4(3) is not defined. So for the sake of the argument it could be anything.[125] It was for the Governor to determine what was the Schedule. The error of the President is that his reasoning[126] fails to appreciate the problem “what is the Schedule”?[127] This is compounded by the fact that pursuant to s 4(7), s 10 of the Subordinate Legislation Act 1978 does not apply to a regulation made under subsection (3) and therefore there is no mechanism to oversee or hold in check the exercise of power.[128] The scale of the Schedule was also relevant, and in this case a schedule of 191 pages.[129]
[125] Appeal tr p 64.
[126] At para [38].
[127] Appeal tr p 65.
[128] Appeal tr p 65.
[129] Appeal tr p 69.
The first respondent, on the other hand, emphasised the situation in existence before a regulation was made under s 4(3). That is the “text” was the Queensland Act as in force on 1 July 2010. In this context what s 4(3) empowered the Governor to do by regulation was merely to place into Schedule 2 the National Law as then in force in South Australia.[130] Thus, the Governor when making the regulation under s 4(3) was not empowered to make any amendment whatsoever to the content of the National Law text or the National Law as in force in South Australia. Any substantive amendment to that could only be done by further regulation under s 4(4) or s 4(5). That was a mechanism to ensure that the South Australian Act marched in step with the Queensland provisions.[131]
[130] Summary of Argument of the First Respondent para [28]
[131] Summary of Argument of the First Respondent paras [29], [30]
In advancing this argument the first respondent took the Court through the history of the Bill[132] and the anxiety of some members of the Parliament with the original Bill which provided for the automatic incorporation of the Queensland provisions to achieve the in-step effect. That suggested the South Australian law could be determined by another State and for that reason the in-step mechanism was to be achieved rather by the current provisions.[133] On the authority of Owen’s case it was permissible to have account of this history of the Bill and it clearly does indicate no abrogation was intended.[134]
[132] Appeal tr p 112
[133] Appeal tr pp 115, 118, 122, 128
[134] Appeal tr p 131
In Campbell v R[135] Spigelman CJ dealing with the correct approach to “context” in statutory construction stated:[136]
The idea that words have a “natural and ordinary meaning” is not a proposition that is applied without regard to context. …
Context must be considered in the first instance and not merely after some kind of ambiguity has been thought to arise. Furthermore, “context” is used in a wide sense to encompass the purpose of the legislation [authorities omitted].
To similar effect the Court in Alcan’s case[137] stated:
… The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision [authorities omitted], in particular the mischief [authorities omitted] it is seeking to remedy.
[135] [2008] NSWCCA 214
[136] At paras [48], [50]
[137] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at para [47]
In this matter the context is not merely the text of s 4 with its seven subsections, each contributing to the meaning of the other. It also involves appreciating the purpose of the Act. It is an Act for the provision of a National scheme for the regulation of health practitioners and as such needs essentially the same provisions to apply in each State for national conformity. That is well described in the decision of Broadbent.[138] The scheme is aptly described in that decision in the following terms:[139]
… The executive governments of each participating jurisdiction entered into the Intergovernmental Agreement and each jurisdiction enacted uniform legislation, based on the model law. The national scheme is the expression of cooperative federalism to establish, by State legislative instruments in each separate jurisdiction, a common or uniform set of laws and organs to achieve the particular policy objectives adopted by COAG and reflected in the State legislation. The model law was enacted by the State of Queensland as host jurisdiction and foundation constitutional actor in developing the national scheme.
[138] Broadbent v Medical Board of Queensland [2011] FCA 980 at paras [108] – [135]
[139] At para [128]
The proposition that a parliamentary intent might be deduced that the Governor was empowered to insert a Schedule containing anything he or she chose irregardless of the focus of the provisions is wrong.[140] One would pause long before attributing such an intent to Parliament. It evokes the remark of the Earl of Birkenhead in Postmaster-General v Corporation of Liverpool[141] that he would watch with interest the Parliamentary progress of such a suggestion. But it seems to me in any event there are two aspects on a textural basis that are at variance with such an approach. These are the meanings to be given to the words, “in connection with the operation of subsections (1) and (2)”, and the word, “may”, that appear in s 4(3).
[140] See Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45 at paras [56] – [63].
[141] [1923] AC 587 at 598
The meaning to be attributed to “in connection with” is hardly controversial. It is understood by its statutory context and purpose.[142] Thus the Governor’s function in subsection (3) is connected to and indeed governed by the provisions of (1) and (2). That indicates a text which will implement what in fact the Queensland law implements, namely a National Law. The Schedule is so designed and constrained. This is perhaps the effect of the argument advanced by the first respondent.
[142] R v Khazaal [2012] HCA 26 at para [31]
The meaning of the word “may” has variable meanings. Any discretion[143] must again yield to the purpose.[144] The approach required here in my opinion is described in Samad[145] in the following terms:
When a statutory power is conferred by the use of words of permission, there may arise a question whether the effect is to impose an obligation, or, at least, an obligation that must be performed in certain circumstances. Even where it is plain that the intention of the legislature was permissive, questions may arise as to the nature of the considerations that the person in whom the power is confided may be entitled or bound to take into account in the exercise of the discretion conferred. Issues of this kind are to be resolved as a matter of statutory interpretation, having regard to the language of the statute, the context of the relevant provision, and the general scope and objects of the legislation [authorities omitted].
[143] Section 34 Acts Interpretation Act 1915
[144] Section 22 Acts Interpretation Act 1915
[145] Samad Others v District Court of New South Wales [2002] HCA 24 at para [32]
In context, and in particular having regard to the purpose of the provision is to ensure the South Australian provisions conform with the National Scheme, in my view the discretion must be used when the insertion of the Schedule into the Act becomes appropriate. And the Schedule must be such as will affect the National scheme. In those circumstances the Governor was required to exercise his or her delegated authority.[146] It is wrong to attribute to him any freedom or plenary power in the matter. I so conclude.
[146] Finance Facilities Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1971) 127 CLR 106 at 134-5; Leach v R [2007] HCA 3 at para [38].
Abrogation
The appellant argued the separation of powers by virtue of Kable.[147] That decision stands for the proposition that neither the Commonwealth nor the State can legislate in a way that might alter or undermine the constitutional scheme set up by Chapter III of the Constitution. However I do not understand it as authority for the proposition that the doctrine of the separation of powers operates in the State.
[147] Appeal tr p 71, Kable v Director of Public Prosecutions (NSW) [1996] HCA 24.
In his reasons for decision, McHugh J explained a State law which gave a State court power to determine issues of a purely non-governmental nature would be invalid not because it breached any entrenched doctrine of the separation of powers in the State Constitution but because it gave the appearance of a court invested with federal jurisdiction not being independent of its State government.[148] Moreover it does not stand for the proposition that there exists a prohibition on the South Australian Parliament conferring legislative power on another body including the Governor as in the current circumstances.
[148] McHugh J at para [22].
In Dignan’s case,[149] the Transport Workers Act provided the Governor-General with power to make regulations not inconsistent with the Act and should have the force of law with respect to the employment of transport workers. The validity of the provision was attacked as an attempt to grant the Executive a portion of the legislative power vested by the Constitution in Parliament, in contradiction of s 1 of the Constitution.
[149] Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73.
Dixon J stated the opinion of the Court in the following passage:[150]
… But I think the judgment [in Roche v Kronheimer (1921) 29 CLR 329] really meant that the time had passed for assigning to the constitutional distribution of powers among the separate organs of government, an operation which confined the legislative power to the Parliament so as to restrain it from reposing in the Executive an authority of an essentially legislative character. I, therefore, retain the opinion which I expressed in the earlier case that Roche v Kronheimer did decide that a statute conferring upon the Executive a power to legislate upon some matter contained within one of the subjects of the legislative power of the Parliament is a law with respect to that subject, and that the distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law. …
(The emphasis is mine.)
[150] At pp 100–101.
In Giris[151] the Income Tax Assessment Act provided that unless the Commissioner was of the opinion that it would be unreasonable to apply the section, tax would be payable on certain trust income at a special rate declared by Parliament. The legislation required the Commissioner to have regard to certain features and, “such other matters, if any, as he thinks fit”. Inter alia it was argued the provision was invalid as an impermissible delegation of legislative power so complete as to amount to an abdication of such power.
[151] Giris Pty Ltd v The Commissioner of Taxation of The Commonwealth of Australia (1969) 119 CLR 365.
Barwick CJ rejected that argument and stated:[152]
… In the case of such discretions the legislature itself determines the grounds of liability leaving it only to the official to resolve the relevant facts nominated by the legislature as requisite to attract the stated liability. No doubt whilst the Parliament may delegate legislative power it may not abdicate it. Here, even though once the Commissioner's discretion is exercised in respect of a particular taxpayer and a particular year of income the consequences of that exercise are beyond recall except by means of retroactive legislation, it cannot, in my opinion, properly be said that the legislature has done more than delegate a legislative function.
[152] At pp 373-374.
In Capital Duplicators[153] in a dissenting decision, but not as to the rule, Mason CJ, Dawson and McHugh JJ stated:
There are very considerable difficulties in the concept of an unconstitutional abdication of power by Parliament. So long as Parliament retains the power to repeal or amend the authority which it confers upon another body to make laws with respect to a head or heads of legislative power entrusted to the Parliament, it is not easy to see how the conferral of that authority amounts to an abdication of power. …
[153] Capital Duplicators Pty Ltd and Another v Australian Capital Territory and Another (1992) 177 CLR 248 at 265.
In advancing the proposition that the statute amounted to impermissible abrogation, the appellant made reference to Gill’s case.[154] In that case, the provision under examination read:[155]
The Governor may from time to time by proclamation, amend or vary any provision of the Land Acquisition Act 1969-1972 in order to ensure that a person who had an interest in the land immediately before the commencement of this Act shall be entitled to obtain compensation for any divestment or diminution of that interest or any adverse effect on that interest occasioned by the vesting of the land provided for by this Act, in the same manner and to the same extent as he would have been had the Authority acquired the land pursuant to that Act to the extent of the interest vested in the Authority pursuant to this Act.
[154] Gill v State Planning Authority (1979) 20 SASR 580.
[155] At pp 584-585.
The Court[156] noted that while the remarks were unnecessary for its decision, went on to say:
… It appears to effect a delegation of the supreme legislative power of Parliament. The purpose of including it was, no doubt, worthy, but we have grave doubts whether it can validly be characterized as a law for the peace, welfare and good government of the State and whether therefore, it is intra vires. Its position under the State Constitution Act is also problematical. It is to be fervently hoped that no occasion arises for invoking it. We particularly invite attention to the remarks of Napier CJ in Ross Chenoweth Ltd v Hayes (1955) SASR 66 at 73:
“When it is acting within the scope of its plenary powers – in the due and ordinary course of legislation – Parliament can, undoubtedly, confide to subordinate agencies authority to make by-laws or the like as to subjects specified in the enactment, and with the object of carrying the enactment into operation, and effect (see Hodge v The Queen (1883) 9 App Cas 117 at 132), but it is – to say the least of it – debatable whether the State Parliament could – without an amendment of the Constitution Act – create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence (R v Burah (1878) 3 App Cas 889 at 905; In re the Initiative and Referendum Act [1919] AC 935 at 945).”
[156] At p 589.
However the appellant accepted that proposition did not quite align with his submission but advanced the authority as consistent with the Kable decision and was authority that there was no power in the South Australian Parliament to abrogate the legislative power.[157]
[157] Appeal tr p 76.
Irrespective of my conclusions in respect to the construction of s 4, even assuming that the true construction is otherwise, I still reject the appellant’s contentions. Consistent with the early authorities cited, it seems to me that it would be an unwarranted containment on the legislative power of the State Parliament in these circumstances to say it could not appoint someone, including a member of the Executive, to exercise the power on its behalf so long as it entirely retained the ability to revoke that power. Even at the highest one can put the appellant’s case, there is no grant to the Governor that equates to a plenary power. It is always subject to the change of heart of the legislature.[158]
[158] Summary of Argument of the First Respondent’s Outline paras [33], [34]. I am much indebted to the article of the late former Chief Justice of Western Australia, the Honourable David Malcolm, “The Limitations, if any, on the Powers of Parliament to Delegate the Power to Legislate” (1992) 66 ALJ 247.
To the extent that the appellant maintains the argument that the National Board exercises a state executive power ultra vires s 61 of the Constitution I reject the argument. The Board and the Australian Health Practitioners Regulation Agency (“AHPRA”) derive their authority from State legislation. It does not purport to confer nor could it confer any part of the Executive power of the Commonwealth.
I confirm the President’s decision. The appeal is dismissed.
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