Mental Health Australia Ltd v Registrar, Act Long Service Leave Authority
[2019] ACTSC 188
•19 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Mental Health Australia Ltd v Registrar, ACT Long Service Leave Authority |
Citation: | [2019] ACTSC 188 |
Hearing Date: | 16 May 2019 |
DecisionDate: | 19 July 2019 |
Before: | McWilliam AsJ |
Decision: | See [87]. |
Catchwords: | JUDICIAL REVIEW – PROCEDURAL FAIRNESS – Where decision made to deregister plaintiff as an employer under the Long Service Leave (Portable Schemes) Act 2009 (ACT) – where defendant subsequently required plaintiff to register again without any further application made by plaintiff – whether plaintiff notified of issue being considered by defendant before decision made – whether plaintiff afforded opportunity to be heard JUDICIAL REVIEW – ERROR OF LAW – Whether plaintiff is an employer in the community service industry under the Long Service Leave (Portable Schemes) Act 2009 (ACT) – whether plaintiff directly engaged in the industry |
Legislation Cited: | Legislation Act 2001 (ACT) ss 141, 180 Long Service Leave (Community Sector) Amendment Bill 2009 (ACT) Long Service Leave (Portable Schemes) Bill 2009 (ACT) |
Cases Cited: | Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 |
Text cited: | Australian Institute of Health and Welfare, National Classifications of Community Services (2002) |
Parties: | Mental Health Australia Ltd (ABN 57 600 066 635) (Plaintiff) Registrar, ACT Long Service Leave Authority (Defendant) |
Representation: | Counsel J Macken (Plaintiff) P Bindon (Defendant) |
| Solicitors Badgery & Rafferty Lawyers (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 552 of 2018 |
McWilliam AsJ:
Mental Health Australia Ltd (MHA), the plaintiff, is seeking judicial review of a decision made by the Registrar of the ACT Long Service Leave Authority (the Authority) requiring it to be registered under the Long Service Leave (Portable Schemes) Act 2009 (ACT) (the Act). The Act provides a legislative scheme which enables employees in the community sector industry to transfer, and thus retain, their long serve leave entitlements when they move to another employer in the same industry.
MHA had been previously registered under the Act. In 2017, it wrote to the Authority and indicated that it did not consider it should remain registered, as it did not consider it was an eligible employer covered by the Act. On 27 June 2017, the Authority agreed that MHA was not an employer covered by the Act and de-registered the organisation.
On 9 October 2018, after MHA had sought a refund of monies it had paid to the Authority while registered (either to itself or the eligible employees), and without warning to MHA, the Authority purported to revoke its decision of 27 June 2017 and notified MHA that it was now required to be registered again. That correspondence has brought the parties to the Supreme Court. MHA filed an application for judicial review on 7 December 2018 and proceeded on an amended application filed on 17 May 2019.
Relief sought
MHA seeks orders that the decision of the Registrar of the Authority dated 9 October 2018 (Decision) be quashed, that the Authority be prohibited from relying on the Decision, and a declaration that the MHA is not an employer for the community sector industry within the meaning of s 6 and Schedule 3, s 3.1 of the Act.
There are two issues the parties seek to have resolved. The first is that MHA says it was denied procedural fairness in relation to the Decision. The second is that MHA says the Authority has misconstrued the Act and that, properly construed, MHA does not fall within the definition of an employer for the community sector industry within the meaning of the Act.
The Court’s power
The Decision had immediate effect on MHA’s rights, interests and liabilities, including exposing it to a criminal offence for failure to register under the Act (s 31(1) of the Act) and is therefore a decision amenable to judicial review: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
Issue 1: Was MHA denied procedural fairness?
The Court must first determine whether the Authority was required to afford MHA procedural fairness before making the Decision, by reference to the statutory framework discussed below and common law principles.
If procedural fairness was required, the Court must next determine the content required in the circumstances of the present case and whether that obligation was met or breached.
If there was a breach of the obligation to afford procedural fairness, the Court considers the consequences that flow from the breach, again by reference to the statutory framework.
Principles relevant to the obligation and content of procedural fairness
There was no issue that procedural fairness was required under the Act. The Authority accepts, as a general proposition, the implication of procedural fairness as a strong common law presumption applicable to any statutory power, the exercise of which may adversely affect legally recognised rights or interests: CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [367] per Gageler J. See also Plaintiff S51/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [97]. Such a presumption may only be displaced by “a clear, contrary legislative intention”: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 (WZARH) at [30] per Kiefel, Bell and Keane JJ.
Here, the common law presumption that procedural fairness applies has not been excluded by any express words in the Act, or by a necessary implication to the contrary.
There was also no dispute about the well-established principle that procedural fairness in a particular case must always be moulded to the particular circumstances of that case. The Authority relied on Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 (Ex parte Lam) at [37] per Gleeson CJ, [48] per McHugh and Gummow JJ. To this may be added: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 (VEAL) at [25]; Kioa v West (1985) 159 CLR 550 (Kioa v West) at 585 per Mason J; Russell v Duke of Norfolk [1949] 1 All ER 109 at 118; Mobil Oil Australia Pty Ltd v Commissioner of Taxation (1963) 113 CLR 475 at 503–504 per Kitto J; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552–553.
As to the content of the obligation, the principles relevant to the arguments made in this case include the following:
(a)The statutory framework is critical, as the common law attaches the principles of natural justice to the exercise of the public power under the statute. Those principles cannot be ignored on the basis that procedural fairness may be afforded at a later stage: see Minister for Local Government v South Sydney City Council [2002] NSWCA 288; 55 NSWLR 381 (South Sydney) at [15], [40]–[43] per Spigelman CJ; Annetts v McCann (1990) 170 CLR 596 (Annetts) at 598 per Mason CJ, Deane and McHugh JJ; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 (Saeed) at [11]–[15].
(b)Decision-makers must give persons likely to be affected by their decision an opportunity to address credible, significant and relevant information known to the decision-maker, whether or not the decision-maker proposes to take it into account: VEAL at [17]; Kioa v West per Brennan J at 628–629.
(c)This extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material: Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591–2.
(d)The requirements of procedural fairness in a particular case must be tested by reference to what the repository of power knew at the time of the exercise of the power, or what she (in this case) would have known if she had adopted a reasonable and fair procedure: Kioa v West per Brennan J at 620.
(e)In circumstances where the ‘gist’ of information is disclosed, the substance of the information disclosed must be ‘sufficient to enable any person wishing to make a submission … to do so’: Minister for Immigration and Citizenship v Maman [2012] FCAFC 13; 200 FCR 30 at [37]–[42]; Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561 at 574.
Statutory framework relevant to the content of the duty
The aspects of the Act relevant to whether MHA is an employer to which the Act applies are discussed below with regard to Issue 2.
Procedurally, an employer ‘for a covered industry must apply to the registrar for registration on the employers register’ within a month of becoming such an employer or within any additional time allowed by the registrar: s 31(1) of the Act. That is, if MHA is an employer ‘for a covered industry’, it must be registered.
Upon an application for registration under s 31 of the Act, the registrar must ‘register the person as an employer for the industry if satisfied the person is an employer for the industry’, or in any other case, refuse the application: s 32(2) of the Act. The important point to note is that s 32 is enlivened only following an application for registration (emphasis added):
32Dealing with applications for registration as employer
(1) This section applies if a person applies to the registrar under section 31 for registration as an employer for a covered industry.
Given that the Act includes a power to register, and a power to refuse registration, it might be inferred that the power in s 32 impliedly extends to a power to revoke registration. However, this implied power to revoke would be exercisable only upon application of an employer, as that is the condition for the exercise of the power to register. Such an inference arises by the application of s 180 of the Legislation Act 2001 (ACT) (Legislation Act):
180Power to make decision includes power to reverse or change
(1)Power given by a law to make a decision includes power to reverse or change the decision.
(2) The power to reverse or change the decision is exercisable in the same way, and subject to the same conditions, as the power to make the decision.
MHA submitted that there might be an implied power to act unilaterally under s 30(3) of the Act, which permits the registrar to correct a mistake, error or omission in the ‘employers register’ prescribed and defined under s 30(1) of the Act. However, the Authority did not rely on that section, and given that s 30 is directed to the keeping and editing of a register of employers, the preferable construction is that the section is a facilitative provision directed to the form of the register and ensuring that it is a correct record. In context, the provision should not be construed as supplying a substantive power to require registration or deregistration of an employer.
Appeals are only created with respect to an appeal against a refusal to register the applicant as an employer: s 37 of the Act. The applicant for registration may apply to the governing board for review of the registrar’s decision: s 37(2).
The Act also provides for review of a number of other ‘reviewable decisions’ by the means of applying for review to the governing board. The types of decisions that may be reviewed under the Act are contained in Schedule 5 to the Act. None of the decisions listed are of the type in question here. Section 82 of the Act enables a further right of review to the ACT Civil and Administrative Tribunal. However, the right of review is created in respect of ‘reviewable decisions’.
Content of the duty
The Authority argued that the statutory scheme described above overall permitted procedural fairness to be given at a later stage, as MHA was able to respond to the Decision letter and there were procedures for review. The Authority argued that it had not taken any steps under s 79 of the Act to enforce the obligation, and therefore there were further opportunities for dialogue. The Authority even submitted that the present proceedings had ‘cured’ any failure to afford an opportunity to be heard because the legal argument as to the proper construction of the Act has been reviewed by this Court.
Such arguments must be rejected as being contrary to established legal authority (South Sydney, Annetts and Saeed). First, under the scheme of the Act, the Decision was not a mere recommendation, or the first step in a multi-staged process. If MHA does nothing upon receiving the letter from the Authority, it is exposed to potential prosecution for a criminal offence for not being registered under the Act. The content of procedural fairness is not determined by whether the Authority chooses to enforce an obligation imposed, pursuant to s 79 of the Act.
Second, to the extent that the Act provides levels of review, those later stages are by different decision-makers. The Registrar makes the initial decision. If it is a reviewable decision, the review is carried out by the governing board: s 80A of the Act. If there is an external review, that is provided by ACAT. As the authorities referred to above make clear, an opportunity to be heard at a second or later stage, once a public power has already been exercised with direct operative effect, is not a substitute for an opportunity to be heard at the first stage. That is particularly so in the context of later judicial review proceedings in this Court, which are limited to questions of law, and are clearly no substitute for an opportunity to be heard on the merits of an issue relating to the registration of an employer.
Contrary to the submission of the Authority, properly construed, the Act requires that procedural fairness be given at the initial stage of decision-making, when the Registrar is considering whether to register an employer under the Act.
As to what was required to fulfil the obligation, applying the established principles above, the statutory framework required first, that the issue was properly disclosed. Accordingly, in this case, the Authority was required to notify MHA that it was purporting to reconsider its initial decision of June 2017 as to whether MHA should be registered as an employer under the Act.
Second, procedural fairness required that MHA as the affected party was given an opportunity to address the issue, by way of providing further information, if MHA wished to do so, and making submissions.
Was the duty breached?
MHA submitted that it did not have any notice about the facts or circumstances which apparently moved the Authority to consider revocation of the deregistration of MHA. It relied on the correspondence with the Authority in the period following June 2017 up to 9 October 2018.
It is unnecessary to set out the contents of each letter to or from the Authority over that period. It suffices to note that there were three letters from the Authority dated 15 August 2017, 11 April 2018 and 8 October 2018. None of the correspondence raises any issue about the Authority having in contemplation a unilateral decision to require MHA to reregister under the Act. The first indication of the substance of the issue only arose in the correspondence notifying MHA of the Decision itself on 9 October 2018:
In addition to not refunding the monies, the Authority has decided that MHA should be reregistered pursuant to s 31 of the Act.
…
For the reasons set out above, as Registrar of the Authority I have reassessed the registration of MHA under the Act and has (sic) made the decision that MHA should be reregistered pursuant to section 31 of the Act …
In line with this decision, please make the necessary arrangements to be reregistered with the portable long service leave scheme as a matter of urgency.
…
I appreciate that this reversal of decision to now reregister MHA might come as a surprise to MHA and I apologise for the confusion caused on our part.
MHA’s submissions were in part directed to a ‘legitimate expectation’, and there is some authority to the effect that expectations created by a decision-maker may affect the practical content of the requirements of fairness in a particular case: Ex parte Lam at [33]. However, this is not a case where there was an expectation created during a decision-making process. Rather, a decision was made in June 2017 and given legal effect. The decision-making process was complete. The earlier decision in 2017 did not create a mere expectation; it created a legal right. The Decision made in October 2018 was a new or separate decision.
The Authority argued that the duty was not breached for four separate reasons. First, there was ongoing correspondence between MHA and the Authority after June 2017, which ‘led the Registrar to continue considering the Plaintiff’s registration status under the Act’. The Authority submitted there were plainly opportunities for MHA to be heard on the Decision over the course of that process, and even after the Decision had been made, there were further opportunities to discuss the Decision.
Second, although the Authority accepted that its change of position was a surprise to MHA, it argued that the consideration of the issue of whether or not MHA should be registered under the Act had remained live because MHA continued in correspondence with the Registrar to agitate for a refund of the contributions it had previously made to the Authority.
The third argument put by the Authority was that it was MHA who initiated a review of its registration status under the Act, and thereby had the opportunity to provide the Authority with whatever material it considered to be relevant to that review. The only material the Authority took into account in revisiting its decision of June 2017 was material that had already been supplied to it by MHA.
Fourth, the Authority submitted that the evidence now relied upon does not depart in any significant way from the general thrust of the information contained in MHA’s constitution, which was relied upon by the Authority in making the Decision. Therefore, had MHA been afforded procedural fairness, it would not have made any difference to the Decision. The Authority relied upon WZARH to support that submission. It appears the argument was directed towards MHA not having suffered any practical injustice, in that MHA did not lose any opportunity to advance its case, because the Authority did not raise any new matter to be taken into account.
The Authority’s fourth argument is more properly characterised as addressing the consequences of breach (discussed separately), rather than whether any breach occurred.
As to the remainder of the Authority’s arguments, none of the above submissions can succeed. The Authority had made its decision to deregister MHA in June 2017. Not only that, it had given effect to that decision, by deregistering MHA as an employer under the Act, effective from January 2017. There was no ongoing dialogue about that decision. No further application was made by MHA. Contrary to the Authority’s submission, no review process was occurring in relation to that decision. The issue was resolved and had legal effect from 27 June 2017.
The ongoing correspondence between MHA and the Authority from that date to October 2018 was directed to the consequences of deregistration for an earlier period of time, the preservation of any entitlements for employees and whether any refund was payable for the period in which MHA had been registered.
MHA was not at any point notified that the Authority was, of its own accord, revisiting the issue of whether it was “an employer for a covered industry” and therefore required to be registered under the Act going forward. The extract of the correspondence from the Authority on 9 October 2018 set out above is telling. It acknowledges that the decision was a complete ‘surprise’.
Contrary to the Authority’s submission, the surprise was plainly a product of a failure to afford MHA any awareness that the Authority was purporting to reconsider its previous decision to deregister MHA.
It is not to the point that the Authority only took into account information that MHA had supplied as part of its initial application to review the registration. As the High Court made clear in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [25], procedural fairness is directed to the process, not the conclusion. See also Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [59]. What the Authority considered in terms of information already supplied is irrelevant because the Authority did not raise the issue of re-registration with MHA.
The questions here are whether it was unfair, having regard to the statutory framework, for the Authority to adopt a procedure of reconsidering the registration of MHA without informing it that such deliberations were occurring, and whether the course adopted by the Authority denied MHA an opportunity to be heard on that critical issue. The answer to both those questions must be yes. A denial of procedural fairness has therefore been established.
Consequences of the breach
The case of WZARH does not support the Authority’s position. The argument that the applicant in that case lost no opportunity to advance his case, or suffered no practical injustice (relying on Ex parte Lam), was distinguished on the circumstances there under consideration: at [36]-[38].
In any event, to the extent that the argument in WZARH and Ex part Lam is relevant to the facts before the Court here, the cases may be seen as applications of the discretionary consideration to grant relief articulated in Steadv State Government Insurance Commission (1986) 161 CLR 141. The test is not whether the outcome would have ultimately been the same had procedural fairness been afforded, but whether anything could have been said. To say that there is ‘no practical injustice’ reflects the Court’s concern with the utility of granting relief. The consideration is directed to the possibility of a different outcome, not the probability.
Here, it cannot be said that MHA lost no opportunity to advance its case or suffered no practical injustice. It has suffered the injustice of not knowing there was any ongoing issue about its registration. The lack of such knowledge resulted in no opportunity to put submissions or other material (such as what was before the Court on judicial review) to the Authority seeking to persuade it that it is not an organisation to which the Act applies. As seen from the discussion in Issue 2, there was much that could have been said, had MHA been afforded the opportunity.
The denial of procedural fairness results in the Decision being set aside for legal error. However, the parties urged upon the Court a course whereby, in the event the Court determined there had been a denial of procedural fairness, the Court should nevertheless also proceed to determine the heart of the dispute between the parties (being Issue 2). This is because Issue 2 is largely based on questions of statutory construction, which was fully argued during the hearing, with the necessary evidence placed before the Court for the issue to be determined. The evidence was admitted on the basis that whether an employer is covered by the Act is a jurisdictional fact, which entitles the Court to receive evidence relevant to that fact and determine the question for itself.
The parties were concerned that if the Court set aside the Decision without considering Issue 2, there would be a risk that the same determination as to whether MHA was an employer under the Act would be made by the Authority after it had complied with its procedural fairness obligations. The result would be that the parties would return to Court in some months’ time for resolution of the same outstanding issue in dispute between them now. As this would not promote the just and efficient resolution of the real issues in dispute between the parties, it is appropriate to deal with Issue 2.
A separate jurisdictional issue
Before considering the substance of the second issue raised by the parties, there is one jurisdictional matter that should be noted. Even if I had not found a denial of procedural fairness, there was an equally fundamental issue that, in my view and having undertaken the task of statutory construction above, squarely arises in relation to the Authority’s jurisdiction to make the Decision. On the proper construction of the Act as set out above, once the Authority had communicated its decision to MHA to deregister it in June 2017 and given effect to the deregistration, the statutory framework (ss 31 and 32 in particular) did not give the Authority power to unilaterally revisit that question, nor does it appear that any such power could have been necessarily implied. When MHA contacted the Authority, it did so about an entirely different matter, namely what the consequences were for itself and its employees regarding monies paid while it was registered as an employer under the Act. It did not make a further application in relation to its registration and a decision about registration may only be made on an application from an employer. The Decision may therefore have been beyond power for a different reason, namely that no current application was before the Authority to enliven its power to act.
The parties did not approach the case with that issue in contemplation. It would therefore have been necessary to raise it with the parties in order to allow them an opportunity to consider it and make submissions on the fundamental question of whether the Authority was acting under any statutory power when making the Decision. However, as a result of the findings in relation to Issues 1 and 2, further consideration of any separate lack of jurisdiction in that regard is otiose.
Second Issue: Is MHA an employer in a covered industry?
Statutory framework
There is no objects or purpose provision in the Act. However, the plain intention of the Act as divined from its overall content and scheme is to provide for workers employed in certain industries, where the nature of their employment is traditionally casual and subject to a number of different employers, to earn and retain long service leave. In the Territory, those industries are described as ‘covered industries’, being the building and construction industry, the contract cleaning industry, the community sector industry, and the security industry: s 6 of the Act.
The explanatory statements for the original Long Service Leave (Portable Schemes) Bill 2009 (ACT) and the Long Service Leave (Community Sector) Amendment Bill 2009 (ACT) (Community Sector Bill), which expanded the scheme as created by the Act to include the community sector industry, confirm the mischief the Act sought to address: employees in the covered industries are often casual workers or in contract employment over long periods of time, which hinders their ability to accrue long service leave in the industry. Therefore, a portable long service leave scheme administered by a single integrated authority for all of the covered industries was established by the Act.
Section 31 of the Act provides:
31 Application for registration by employers
(1)An employer for a covered industry must apply to the registrar for registration on the employers register not later than—
(a)1 month after becoming an employer for the industry; or
(b) the end of any additional time the registrar allows.
Maximum penalty: 50 penalty units.
…
(2)An offence against this section is a strict liability offence.
The term “employer” is defined under the Act (underlining added):
7 Who is an employer?
(1) An employer, for a covered industry, is a person engaged in the industry in the ACT who—
(a) employs someone else (whether in the ACT or elsewhere) to carry out work in the industry; or
(b)is declared to be an employer for the industry under section 12 (Declarations by Minister—additional coverage of Act).
…
(3)However, the following are not employers:
…
(e)for a stated covered industry—an entity prescribed in the covered industry schedule for the covered industry; …
For the present purpose, there is no relevant ministerial declaration made under the Act that is applicable to the MHA.
Schedule 3 of the Act provides:
3.1 What is the community sector industry?
The community sector industry is—
(a) in relation to the ACT—
(i) the industry of providing child care services; and
(ii) the industry of providing residential aged care services; and
(iii) the industry of providing community aged care services; and
(iv) the industry of providing the following residential care services:
(A) care accommodation or homes for disadvantaged people where nursing or medical care is not provided as a major service;
(B) residential corrective services for young offenders; and
(v) the industry of providing non-residential care welfare services (including fund-raising services for welfare services) not included in other community sector industries; and
(vi) the industry of providing employment placement services for disabled people; and
(vii) the industry of providing community service advocacy services; and
(b)in relation to a reciprocating State—the community sector industry within the meaning of the corresponding law of the State.
Clause 3.4 of Schedule 3 expressly provides that a court or tribunal is not an employer for the community sector industry. This suggests that the definition of who is an ‘employer engaged in’ the community sector industry is broad, as such a clause would not otherwise have been necessary.
It must also be accepted that this is a piece of social legislation and as such is to be construed beneficially, rather than narrowly or strictly: State Government Insurance Office (Qld) v Crittenden (1966) 117 CLR 412. Similar legislation in other jurisdictions has been construed in that manner: see Lindner Pty Ltd v Builders Licensing Board [1982] 1 NSWLR 612 at 613.
The beneficial purpose of the legislation is achieved in a number of ways. One example is that the Act provides a degree of flexibility, in that a person moving from the community sector industry to an organisation that is not an employer engaged in that industry will not automatically lose their accrued benefit – the Act allows for a break of 4 years before the person loses a long service leave entitlement: ss 47(1), 65(1) and 66(1)(b) of the Act.
Arguments of the parties
It will be seen from the above statutory regime that whether MHA is ‘an employer for a covered industry’ under s 31 of the Act depends upon whether it is ‘engaged in the industry’. As stated above, that question is a jurisdictional fact, in that the obligation to make an application to the Authority to register only arises on that criterion being established: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [28].
MHA argued that it is not ‘engaged in the industry’ because it does not provide any of the services specified in cl 3.1 of Schedule 3 to the Act.
The Authority argued that MHA is engaged in the industry because it provides either:
(a)“non-residential care welfare services” (cl 3.1(a)(v) of Sch 3 to the Act), or
(b)“community service advocacy services” (cl 3.1(a)(vii) of Sch 3 to the Act).
Does MHA provide non-residential care welfare services?
MHA relied on affidavit evidence of its Chief Executive Officer, Mr Frank Quinlan. It included MHA’s constitution and various position descriptions of MHA’s employees.
MHA is a charitable organisation registered with the Australian Charities and Not-for-Profit Commission (ACNC). According to the ACNC Register, MHA is:
… the peak, national, nongovernment organisation representing and promoting the interests of the Australian mental health sector, committed to achieving better mental health for all Australians…
MHA’s constitution provides:
2.1 The primary objects for which the [MHA] is established are to:
(a) promote and facilitate improvements in the mental health and quality of life of Consumers, their Carers and families;
(b) increase the effectiveness and enhance the long term viability of charities, not-for-profit and other private and public organisations in the mental health sector by promoting partnerships and service coordination to improve the identification, management, treatment and support of Consumers and Carers; and
(c) promote awareness of and improve the mental health and wellbeing of Consumers, Carers and all Australians.
The evidence establishes that MHA is a peak policy body for mental health organisations. A list of the voting members of MHA was in evidence. They included organisations such as: Lifeline Australia, the Royal Flying Doctor Service of Australia, the Black Dog Institute, Beyondblue Limited, the Pharmacy Guild of Australia, Relationships Australia and the Royal Australian and New Zealand College of Psychiatrists. It can be seen that MHA does not provide any service directly to individuals in need of mental health and welfare assistance. Rather, it represents those organisations who are ‘at the coalface’ of providing mental health and welfare services.
Peak lobbying, advocacy or representative bodies are common in many industries. Analogous examples might include the ACT Law Society, which represents lawyers and law firms, and co-ordinates initiatives (such as pro bono schemes for advice), but does not actually employ solicitors to give legal advice directly to clients; or the Australian Medical Association, which promotes the interests of doctors and the health care needs of patients, but does not provide medical services directly to patients.
Such organisations are certainly allied to, and engage with, the industry they represent. Whether they are engaged in the industry of legal services or medicine is a different question.
Does a body such as the MHA provide ‘non-residential care welfare services’? The Authority relied on the ordinary dictionary definition of ‘welfare’, set out in the Oxford English Dictionary relevantly as follows:
The state or condition of doing or being well; well-being, prosperity, success; the health happiness, and fortunes of a person or group.
Organized provision for the basic physical and material well-being of people in need, esp financial support as provided for by legislation. Also: provision of initiatives, funding, or facilities within a business or other institution to maintain or improve the well-being of workers, students etc.
…
Financial support given by the state to those who are unemployed or otherwise in need; frequently in on welfare. …
The Authority argued the definition was broad and was directed towards activities that provide or promote assistance or benefits for people including in respect of their health. The Authority further submitted that there would need to be some justification for limiting general words so that they are not given their plain and ordinary meaning, relying on Commissioner for ACT Revenue v Dataflex Pty Ltd [2011] ACTCA 14; 5 ACTLR 271 at [42].
The context of the clause 3.1(a) is important here. ‘Non-residential welfare’ services are to be read against the immediately preceding industry, namely the provision of ‘residential care services’. Read in context, MHA is clearly not a body that provides a non-residential welfare service. The services MHA provides are lobbying, advocating for better policy and representing the interests of its members. Those activities are not services that could be categorised as a ‘non-residential welfare services’.
Even if the plain and ordinary meaning of ‘welfare’ were isolated and applied (a construction eschewed by MHA as not paying sufficient regard to the context of either the phrase or the clause), I do not consider that the services MHA provides should be properly described as a ‘welfare’ service. MHA does not provide a service of organized provision for the basic physical and material well-being of people in need (applying the dictionary definition most apt to these circumstances). The services it provides are one step removed.
Nor do I consider that the purpose of the Act promotes a construction that extends the scope of the clause to include peak policy or lobbying groups such as MHA, as opposed to many of the direct service organisations that are members of MHA. The employment position descriptions for those employed by MHA appeared to be of a very different type to the peripatetic nature of contract and casual workers in the community sector industry. MHA employs, at different levels of seniority, policy and projects officers and finance and corporate services officers.
The evidence establishes that while experience in the community sector industry may be an advantage in working for MHA, it is not the essential pre-requisite. For example, one does not need to be a qualified mental health counsellor or psychologist in order to lobby different levels of government for better policies relating to mental health.
In summary, the express words, placed in their context and with due regard for the Act’s beneficial purpose, result in a construction of the Act that excludes MHA from being a provider of ‘non-residential welfare services’.
Does MHA provide community service advocacy services?
MHA’s position was that although it provided advocacy services, those services were not what would be described as ‘community service’ advocacy services. Mr Quinlan’s affidavit evidence was as follows:
[MHA]’s constituent body is other mental health bodies operating nationally or within other States and Territories. [MHA]’s primary function is to represent and promote the interests of its constituent bodies and to provide strategic leadership in influencing policy and funding decisions at the Federal level.
The advocacy deposed to in the preceding paragraph is the full extent of the advocacy services provided by the [MHA] …
The Authority argued that the ordinary meaning of the words ‘community service advocacy services’ is sufficiently broad to encompass the work done by MHA. Similarly, paragraph 3.1(a)(vii) of Sch 3 to the Act is inherently a ‘catch-all’ category, unambiguously broad and unspecific. The Authority relied on the exclusion of a court or tribunal from the definition of ‘employer’ as further contextual support for the broad definition of ‘community sector industry’.
The Court was taken to a document entitled National Classifications of Community Services, published by the Australian Institute of Health and Welfare, which was referred to in the second reading speech for the Community Sector Bill. Section 141 of the Legislation Act permits a wide discretion as to the extrinsic material that may be taken into account in construing legislation. However, I am not convinced the Court would use the said document as an aid to construction of the words of the Act in question here. The introduction states that:
The primary objective of the publication is to provide a basis for consistent classification, across a diverse range of services types, of the delivery of community services in terms of the activities provided to clients, and the setting in which such services are delivered.
It is not a document expressly written for, or directed to, the meaning of the words in the Act under consideration here. Further, the phrase ‘community service advocacy services’ in the Act does not expressly or impliedly incorporate any particular classification in the document. It cannot be said that when the Legislature used those words in para 3.1(a)(vii), what was intended was a reference to a particular classification in the National Classifications of Community Services.
Even if such extrinsic material was taken into account, it is not particularly helpful in determining what the intended meaning of ‘community service’ advocacy services is. The document does not contain such a definition. The closest references are to types of classifications for advocacy services, such as ‘individual advocacy’, ‘court advice and advocacy’, and ‘social planning, social action and group advocacy not elsewhere classified’. The classification of ‘group advocacy’ incorporates ‘activities that aim to change or maintain existing social policies and programs’ by ‘lobbying appropriate organisations’ about social policy issues of relevance to the general public or to specific groups. That classification may or may not be broad enough to cover the activities of MHA, but even making the assumption that it is, it does not answer the question of whether these types of activities constitute ‘community service’ advocacy within the intended meaning of the Act. In my view, using such extrinsic material as a means of ascertaining the legislative intention of a particular phrase only results in further uncertainty.
The better approach is to construe paragraph 3.1(a)(vii) in the context of the other paragraphs of the clause in Sch 3 to the Act. They are child care services, aged care services, residential care services for the disadvantaged or residential corrective services for young offenders, non-residential welfare services, and employment placement services.
It can be seen that these are all services provided directly to people in need of support of some kind. In my view, the type of services that would fall within ‘community service’ advocacy are those that also involve direct contact with clients in need, such as advocating on behalf of individuals or groups of individuals and assisting them in securing the above named services. MHA’s advocacy services are of a different kind. The activities of MHA operate indirectly, through advocacy at a higher, representative level in liaising with governments and raising awareness. The ‘clients’ of MHA are member organisations who appear to be (although the evidence was not detailed on this point) service providers to the individuals or groups of individuals in need of support.
Further, MHA is not providing ‘community service’ advocacy. MHA advocates on behalf of its members, many of whom provide a community service, but it does not provide ‘community service’ advocacy in a direct, individual patient, or client focused, way. Its membership comprises mental health bodies which operate nationally or in particular States and Territories. On the evidence before the Court, MHA operates in a closely aligned – but nevertheless different – industry, for the purposes of the Act.
Again, when regard is had to the purpose of the Act, the exclusion of MHA from the definition of an employer providing ‘community service’ advocacy services does not detract from the overall protection and preservation of an employee’s long service leave entitlements when he or she remains within the covered industry. Although the Act is beneficial legislation, this does not automatically require that categories of covered employers must be read as broadly as possible. The intention of the Act is to provide and protect the long service leave entitlements of persons who may be temporarily or casually employed by a series of different organisations because of the nature of the work they do.
Accordingly, upon the proper construction of the Act, MHA is not an ‘employer for a covered industry’. The Decision to require MHA to register as an employer under the Act was based on an error of law.
Relief
As legal error has been established through a denial of procedural fairness, and alternatively through misconstruction or misapplication of the Act, the Decision will be set aside. There is no extant application before the Authority requiring any further consideration.
The Court has a wide discretionary power to make declarations. In Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437–438, Gibbs J held the following requirements should be satisfied before the Court exercises its power to make declarations:
(a)the question must be a real and not a hypothetical or theoretical one;
(b)the applicant must have a real interest in raising it; and
(c)there must be a proper contradictor.
Those requirements are satisfied here. Declaratory relief as to the status of MHA as an employer is appropriate given the history of communications between the parties, their intention that the issue be decided by the Court in these proceedings and the desirability of the parties being bound given MHA’s potential exposure to criminal sanctions.
The Authority confirmed that if the Court found the Decision was based on the error of law for which MHA contended, it was unnecessary to make an order as to prohibition, as it would abide by the findings of the Court.
As MHA has been entirely successful on its application, costs should follow the event.
Accordingly, the Court makes the following declaration and orders:
(1) It is declared that Mental Health Australia Ltd (ABN 57 600 066 635) is not an employer for the community sector industry within the meaning of s 6 and Schedule 3, clause 3.1 of the Long Service Leave (Portable Schemes) Act 2009 (ACT).
(2) The decision of the Registrar, Long Service Leave Authority, dated 8 October 2018, is set aside.
(3) The defendant is to pay the plaintiff’s costs.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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