Migration Agents Registration Authority v Barrie Goldsmith
[2001] FCA 778
•22 JUNE 2001
FEDERAL COURT OF AUSTRALIA
Migration Agents Registration Authority v Barrie Goldsmith [2001] FCA 778
ADMINISTRATIVE LAW – re-registration by Migration Agents Registration Authority – under Migration Act 1958 (Cth) of applicant who has been registered at some time in the twelve months before application – prohibiting re-registration if applicant has not met the requirements prescribed by the regulations for continuing professional development (CPD) – regulations requiring CPD to be completed in the year of the previous registration – whether Act contemplates CPD may be completed at any time up until application for registration – whether regulations invalid as being inconsistent with Act
Acts Interpretation Act 1901 (Cth) s 46(1)(b)
Migration Act 1958 (Cth) ss 287, 288(1), 288(1A), 289, 290(1), 290A, 291
Migration Legislation Amendment (Migration Agents) Act 1977 (Cth)
Migration Agents Regulations 1998 (Cth) reg 6 Sch 1Shanahan v Scott (1957) 96 CLR 245 at 250 applied
Morton v Union Steamship Co of New Zealand (1951) 83 CLR 402 cited
One Tel Ltd v Australian Communications Authority [2001] FCA 54 citedOne Tel Ltd v Australian Communications Authority (2000) 176 ALR 529 cited
Hanlon v The Law Society [1981] AC 124 cited
Minister for Immigration & Multicultural Affairs v Singh (2000) 171 ALR 53 cited
Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915 cited
Gould v Brown as liquidator of Amann Aviation Pty Ltd (in liq) (1998) 193 CLR 346 citedMIGRATION AGENTS REGISTRATION AUTHORITY v BARRIE GOLDSMITH
N 397 OF 2001HEEREY, MANSFIELD AND GYLES JJ
22 JUNE 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
SYDNEY DISTRICT REGISTRY
N 397 OF 2001
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
MIGRATION AGENTS REGISTRATION AUTHORITY
APPELLANTAND:
BARRIE GOLDSMITH
RESPONDENTJUDGE:
HEEREY, MANSFIELD AND GYLES J
DATE OF ORDER:
22 JUNE 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The appellant pay the respondent’s costs to be taxed, including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SYDNEY DISTRICT REGISTRY
N 397 OF 2001
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
MIGRATION AGENTS REGISTRATION AUTHORITY
APPELLANTAND:
BARRIE GOLDSMITH
RESPONDENT
JUDGE:
HEEREY, MANSFIELD AND GYLES JJ
DATE:
22 JUNE 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HEEREY J:
The history of this matter and the relevant statutory provisions are set out in the judgments of the other members of the Court.
The issue on which this case turns is the construction of s 290A of the Migration Act 1958 (Cth).
Section 290A is directed at the point in time where the Authority is considering an application for registration, that being an application by a particular category of applicant, namely one who has been registered at some time in the twelve months before making the application.
The expression “has not met the requirements” is couched in the perfect tense. It is speaking of a state of affairs existing in the past and continuing up until the present, that is to say up until the time at which the application is being considered. The Authority’s argument on the appeal necessarily involves a reading of s 290A in which the critical expression is used in the pluperfect tense, that is to say connoting a state of affairs which came to an end at some point in the past – “had not met the requirements”.
As well as conflicting with the language of s 290A, the Authority’s argument is at odds with the policy revealed by the Act.
The Act contemplates that there may be a gap in registration, but as long as this is no more than twelve months the applicant does not have to publish notice of the application: s 288(1A). Of course, during the period of that gap, the applicant is not a registered agent and the restrictions of Pt 3 Div 2 apply.
If the gap is longer than twelve months, the applicant’s position is no different from that of a person who has never been a registered agent.
If the applicant has been registered at some time in the twelve months before the application then, as already mentioned, s 290A applies. Since the whole point of continuing professional development is that a registered migration agent should have knowledge that is up to date, the later that knowledge is acquired before making the registration application, the better. Conversely, the Authority’s argument would impute to Parliament an intention that someone whose continuing professional development was acquired as long as two years before registration should be registered whereas a person who acquired that development the day before registration should not.
Once the proper construction of s 290A is adopted, it follows that the primary judge was correct in applying the principle in Shanahan v Scott (1957) 96 CLR 245 at 250:
“The result [of the authorities discussed] is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.”
What is accepted to be the correct construction of reg 6 and sch 1 par 1 of the regulations operates to create criteria for registration which are substantially different from those which s 290A mandates.
Counsel for the Authority did not contend that s 46(1)(b) of the Acts Interpretation Act 1901 (Cth) gave the regulations a meaning which would support the Authority’s rejection of the respondent’s application. That being so, I do not think this Court should embark on the exercise of reconstruction of the regulations to meet some purely hypothetical eventuality.
The appeal should be dismissed with costs.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate:
Dated: 22 June 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 397 OF 2001
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
MIGRATION AGENTS REGISTRATION AUTHORITY
APPLICANTAND:
BARRIE GOLDSMITH
RESPONDENT
JUDGE:
HEEREY, MANSFIELD AND GYLES JJ
DATE:
22 JUNE 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
MANSFIELD J:
This appeal is from a decision of Wilcox J given on 11 April 2001. His Honour set aside a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 6 March 2001, and ordered that the decision of the appellant of 28 November 2000 refusing the respondent’s application for registration as a migration agent under the Migration Act 1958 (Cth) (“the Act”) be set aside and that the appellant enter the respondent’s name onto the register of migration agents maintained pursuant to s 287 of the Act, with effect from 28 November 2000.
The short issue on this appeal is the validity of item 1 of Sch 1 of the Migration Agents Regulations 1998 (“the Regulations”). That in turn depends upon the proper construction of s 290A of the Act. The learned Judge at first instance determined that that provision of the Regulations was not authorised by s 290A of the Act, save to the extent that it was preserved with a limited operation by reason of s 46(1)(b) of the Acts Interpretation Act 1901 (Cth) (“the AIA”).
To explain how that issue arises, it is necessary to refer in a little detail to the nature of the proceeding and to surrounding provisions of the Act.
The Migration Legislation Amendment (Migration Agents) Act 1997 (Cth) (“the amending Act”) introduced significant changes to Div 3 Pt 3 of the Act concerning registration of migration agents. Prior to the amending Act coming into force, the registration of registered migration agents lasted for twelve months after the registration (s 299(1) as previously in force). Unless that person was about to be deregistered, the predecessor of the appellant was obliged to renew the registration (s 300 as previously in force). The amending Act introduced provisions whereby a registered migration agent must re-apply for registration under s 288 (although that person, if registered in the twelve months prior to the application, need not advertise the application: s 288(1)). It also introduced s 290A, which effectively provided for the imposition of mandatory continuing professional development of registered agents. It is in the following terms:
“If the applicant has been registered at some time in the 12 months before making the application, he or she must not be registered if the Migration Agents Registration Authority is satisfied that the applicant has not met the requirements prescribed by the regulations for continuing professional development of registered agents.”
Section 289 obliges the appellant to register an applicant for registration unless one of certain specified sections prohibits that registration. For present purposes, the only relevant section specified is s 290A.
Section 290A was part of the tranche of amendments which came into force on 21 January 1999: s 2(4) and Sch 3 Pt 2 of the amending Act. Part 1 of Sch 3 states the object of that tranche of amendments:
“This Schedule makes amendments to provide for continuing professional development of registered agents by:
(a)requiring migration agents to apply for registration each year; and
(b)requiring applicants for repeat registration to meet prescribed standards of continuing professional development (as well as standards of good character).”
At the same time, s 288 of the Act was amended. The requirement in subs (1A) that an applicant for registration publish in the prescribed way a notice of the application and so be exposed to an objection process was qualified in the following terms:
“This requirement does not apply to an individual who has been registered at some time in the 12 months immediately before making the application.”
The delayed commencement of part of the amendments introduced by the amending Act, including in particular s 290A, was to provide migration agents with some lead time to get ready to meet the requirements of continuing professional development of migration agents as a condition of re-registration: par 5 of the notes to cl 2 of the Migration Legislation Amendment (Migration Agents) Bill 1997 which subsequently became the amending Act, and the Explanatory Memorandum to that Bill circulated by authority of the Minister for Immigration and Multicultural Affairs.
Contemporaneously with those amendments, reg 6 and Sch 1 of the Regulations came into force: cl 2(1) of the Regulations. Regulation 6 provided:
“For s 290A of the Act, the requirements for continuing professional development of registered agents are set out in Schedule 1.”
Schedule 1 to the Regulations deals with continuing professional development. Item 1 is the relevant one for present purposes. It is in the following terms:
“A migration agent must, in the year ending on the anniversary of the migration agent’s previous registration, complete approved activities that have a value of at least 10 points.”
It is the requirement that the approved activities be completed “in the year ending on the anniversary of the migration agent’s previous registration” which is the critical requirement in issue in this matter. The balance of the Regulations deals with the means by which courses and course providers may be approved, the nature of core activities, the rating of professional development activities, and the like.
The respondent, during the twelve months that expired on 21 September 2000 was registered as a migration agent under the Act. In accordance with s 301 the appellant, by letter dated 14 July 2000, reminded him that his registration would expire on that date. The respondent took no action to review his registration, or to undertake any continuing professional development (“CPD”) courses before 21 September 2000.
On 26 September 2000, the appellant informed the respondent that his registration had expired. The respondent then took some action to apply for re-registration as a migration agent. He recognised that first he would need to complete CPD to a certain level. On 5 or 6 October 2000 he completed CPD activities which, in terms of Sch 1 of the Regulations, were approved activities that had the required points value. On 9 October 2000 he then applied for re-registration as a migration agent. On 28 November 2000 the appellant refused that application. It gave the following reason:
“The Authority is not satisfied that you have met the requirements prescribed by the Regulations for continuing professional development of registered agents pursuant to s 290A of the Act.”
It was not so satisfied because the CPD had not been completed prior to the expiry of his registration on 21 September 2000.
The respondent applied to the Tribunal for review of that decision. He argued before the Tribunal firstly that s 290A of the Act, upon its proper construction, required only that, provided the application for re-registration was made within twelve months of the expiration of the earlier registration, the CPD requirements need be completed prior to the application for registration, rather than during the period of the earlier registration. The Tribunal rejected that construction of item 1 of Sch 1 of the Regulations. On appeal to the Court, Wilcox J also rejected that contention. His Honour said:
“As a matter of language, it is impossible to read item 1 of Schedule 1 as referring to some only of the persons who apply for re-registration, or as providing only that the CPD courses are to be completed prior to the application for re-registration.”
The respondent has given no notice of contention in respect of that aspect of the decision. It has not been argued on this appeal that item 1 of Sch 1 of the Regulations has some different meaning.
Consequently, on this appeal, it may be taken that upon the proper construction of item 1 of Sch 1 of the Regulations, the words “in the year ending on the anniversary of the migration agent’s previous registration” require that the respondent, or any other person seeking re-registration, complete the CPD requirements within the period of the previous registration.
The alternative argument before the Tribunal and before Wilcox J was that item 1 of Sch 1 of the Regulations was invalid because it is inconsistent with the scheme of the Act. That inconsistency was said to arise because it required the CPD requirements to be satisfied during the currency of the previous registration, whereas (it was contended) s 290A of the Act contemplates that the prescribed CPD requirements will be able to be satisfied by applicants for re-registration at any time before the application for re-registration or its determination. The Tribunal rejected that contention also.
However, it was upon that basis that the respondent succeeded before Wilcox J. His Honour concluded that s 290A demonstrated a legislative intention that the CPD requirements to be specified in the Regulation may be met in the period up to the period of the new application, or perhaps its determination. On the facts, they were met by the time of the application for re-registration. The requirement that they be met during the currency of the previous registration imposed by item 1 of Sch 1 of the Regulations was inconsistent with that legislative intent.
His Honour had regard to the wording of s 290A, and to the Second Reading Speeches of the Minister for Immigration and Multicultural Affairs and, in the Senate, of the Minister for Aboriginal and Torres Strait Islander Affairs representing the Minister for Immigration and Multicultural Affairs. He concluded that item 1 of Sch 1 of the Regulations, because it imposed the requirement that CPD requirements be completed during the period of the previous year of registration which was not consistent with the intent of s 290A of the Act, departed from or varied the scheme which the legislature had adopted: see Shanahan v Scott (1957) 96 CLR 245 per Dixon CJ, Williams, Webb and Fullagar JJ at 250. Wilcox J then applied s 46(1)(b) of the AIA so as to read item 1 of Sch 1 of the Regulations so as not to exceed the power to make regulations under s 504 of the Act. By that means, his Honour read item 1 of Sch 1 of the Regulations as requiring applicants for re-registration as migration agents to have completed the specified CPD requirements prior to the application for re-registration. As noted above, there was no issue whether the cut-off date was the date of the application for re-registration or the date of its determination by the appellant. As the respondent satisfied that requirement, and there was no other issue as to his eligibility for re-registration, his Honour set aside the decision of the Tribunal and ordered the appellant to enter the respondent’s name into the register of migration agents maintained pursuant to s 287 of the Act, with effect from 28 November 2000.
In my judgment, the introductory words of s 290A refer to the period of twelve months during which the applicant for re-registration was registered as a result of that last registration rather than to the date on which the applicant for re-registration was last registered. The words “has been registered” in s 290A clearly refer to the status of being registered during a prior registration period, rather than to the act of prior registration. That is a construction with which counsel for the appellant agreed. That construction also reflects the fact that the registration of a registered agent lasts for twelve months after the registration: s 299(1).
I also consider that it is clear that s 290A contemplates that there may be a period of time after the elapse of a period of registration and before re-registration during which a previously registered migration agent may apply for re-registration. That period of time may be up to twelve months. That prospect did not arise prior to 21 January 1999.
Prior to the amending Act, s 299(1) was in the same terms and s 300 then obliged the predecessor of the appellant, at the end of the period of registration, to renew the registration. Section 299(2), as then in force, provided that the renewed registration “continues for twelve months from the renewal”. Automatic renewal meant that there was no prospect of an hiatus in the period of registration. The amending Act contemplated the prospect of such an hiatus. Section 301 preserves an obligation on the part of the appellant to give notice of the impending end of the period of registration, albeit in different terms. But s 290A operates to impose as a condition of re-registration, if an applicant for registration has been registered at some time in the twelve months before making the application, the requirement that the prescribed CPD requirements have been met. Similarly, s 288(1A) exempts an applicant for re-registration, who “has been registered at some time in the 12 months immediately before making the application”, from the obligation to publish in the prescribed way notice of the application.
In my judgment, because s 290A imposes CPD requirements as a condition of re-registration, where re-registration is sought within twelve months of the applicant having been registered, it provides a facilitated vehicle for re-registration provided the condition specified in s 290A, and the requirements of s 288 other than under s 288(1A) are satisfied. I respectfully agree with the conclusion of Wilcox J at first instance, and his with Honour’s reasons for that conclusion. Section 290A a scheme under which the CPD requirements are to be satisfied as the time of the application for re-registration, or perhaps when that application is determined by the appellant. The use of the words “has not met” in context mean has not met at the time of the application or its determination. The legislature, in my view, did not intend to impose or to authorise by regulation the imposition of requirements that impose the prescription of CPD requirements which must be satisfied before the period of current registration has expired, even though the application for re-registration could be made up to twelve months later. If that were the legislative intention, the consequence to the respondent (and to other applicants for re-registration within twelve months of the elapse of the previous registration) would be that the application must be refused: s 290A. And it would mean that any such person must not then be registered as a migration agent for a further period of twelve months: s 291. In effect, if item 1 of Sch 1 of the Regulations is authorised by s 290A, by virtue of the failure to complete CPD requirements before the elapse of the then current period of registration, a registered migration agent may not be registered as a migration agent for a further period of one year after the application for re-registration following the elapse of the current period of registration. If the appellant’s contention is correct, the respondent was unwise to have applied for re-registration promptly after he had completed his CPD requirements, and within twelve months of the elapse of this prior registration (in his case, within about three weeks of that time). But s 290A contemplates such an application in that period. It no doubt was contemplated as providing for cases where the CPD requirements were not met for reasons of hardship such as illness, or for personal reasons such as absence on holidays, or oversight, or for other reasons. The practical consequence of the appellant’s contention is that a migration agent who did not complete the CPD requirements during the current period of registration could not then be registered for a period of twelve months. Section 290A would create an entitlement to apply for re-registration, for a migration agent whose period of registration had lapsed only if the CPD requirements had been met before the elapse of the last period of registration. A person such as the respondent would not have the option of seeking re-registration in the ensuing twelve month period even if in that period of twelve months the CPD requirements had been completed and even if the appellant regarded that person as a fit and proper person to give immigration assistance, not by reason of s 290A but by reason of item 1 of Sch 1 of the Regulations.
It is, in my view, significant that s 290(1) obliges the appellant not to register an applicant for registration as a migration agent if it is satisfied that that applicant is not a fit and proper person to give immigration assistance, including having regard to the extent of that person’s knowledge of migration procedures and to whether that person has a qualification prescribed by the Regulations or a knowledge of migration procedure that the appellant considers sound: s 290(2)(a) and (b): see s 289. That is a requirement applicable to all applicants for registration, including applicants for re-registration. The re-registration procedure is facilitated only to the extent that it grants relief from the obligation to publish notice of the application under s 288(1A), which then exposes the applicant to the risk of objection to the registration being made by a third party. The only apparent balance for that concession is that imposed by s 290A requiring an applicant for re-registration to meet the CPD requirements. There is no purpose relevant to the public benefit or to the protection of the public evident to me, having regard to those considerations, which would support the conclusion that s 290A supports regulatory prescription requiring the CPD requirements to be met during the current period of registration as distinct from the period up to twelve months after that period of registration has lapsed, during which a re-registration application may be made. The Second Reading Speeches do not, in my view, give any support to the contention to the contrary. If the appellant’s contention is correct, a new applicant for registration who is a fit and proper person to give immigration advice would be eligible for registration, but a person who had been registered in the previous twelve months and who had completed the CPD requirements and who is a fit and proper person to give immigration advice would not be able to be registered during the twelve months after registration had elapsed.
I do not consider that the scheme of the Act, in particular s 290A, adopts or contemplates that plan.
There is, in this matter, nothing raised to suggest that in any other respect the context of the CPD requirements in Sch 1 of the Regulations extends beyond the scope of the regulation-making power. That power discloses that the legislature had generally left to the Regulations the nature and content of the CPD requirements: Morton v Union Steamship Co of New Zealand (1951) 83 CLR 402 at 410. However, as Hill J said in One.Tel Ltd v Australian Communications Authority [2001] FCA 54 at [72], a regulation which is inconsistent with the legislation purporting to authorise it will be invalid: see also Hely J at first instance in One.Tel Ltd v Australian Communications Authority (2000) 176 ALR 529 at 537. For the reasons expressed, I consider that item 1 of Sch 1 of the Regulations imposes a requirement as to the time by which the CPD requirements must be met which is inconsistent with the time by which those requirements be met.
Consequently, I respectfully agree with the conclusion of Wilcox J that item 1 of Sch 1 of the Regulations, as it imposes the requirement that the CPD requirements in the case of the respondent had to be met by 21 September 2000, is to that extent inconsistent with s 290A of the Act. The regulation making power in s 504 of the Act only empowers regulations which are not inconsistent with the Act. That part of the Regulations, in my view, adds a new and different means of carrying out the purposes of s 290A of the Act and departs from and varies the plan which the legislature has adopted to achieve its ends: cf Shanahan v Scott (supra).
By supplementary written submissions filed after the hearing, the appellant contends that the learned judge at first instance erred in his application of s 46(1)(b) of the AIA. It is however accepted that, if the appellant fails on its principal contention, the orders made by Wilcox J should stand, and the appeal should be dismissed. As the question does not directly arise whether item 1 of Sch 1 of the Regulations as presently drawn (and in the light of the conclusion that it invalidly imposes a date by which CPD requirements must be met) requires that the CPD requirements must be met only in the period from the commencement of the current registration, I do not consider it appropriate to determine that issue. It is not otherwise necessary, in my view, to address the application of s 46(1)(b) of the AIA on this appeal.
In my judgment the appeal should be dismissed. I consider that the appellant should pay to the respondent costs of the appeal to be taxed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 22 June 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 397 OF 2001
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
MIGRATION AGENTS REGISTRATION AUTHORITY
APPELLANTAND:
BARRIE GOLDSMITH
RESPONDENT
JUDGE:
HEEREY, MANSFIELD and GYLES JJ
DATE:
22 JUNE 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
GYLES J:
This is an appeal from a judge of the Court in which a decision of the Administrative Appeals Tribunal (“the AAT”) was set aside pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and it was ordered that the Migration Agents Registration Authority (“the Authority”) decision of 28 November 2000 refusing the application by Barrie Goldsmith (“the applicant”) for registration as a migration agent be set aside and that the Authority enter the applicant’s name into the register of migration agents maintained pursuant to s 287 of the Migration Act 1958 (Cth) (“the Act”) with effect from 28 November 2000.
The applicant had been a registered migration agent for some years. His last annual registration commenced on 22 September 1999 and was to expire on 21 September 2000. The applicant, despite a reminder issued by the Authority, did not apply for repeat registration prior to expiration of his registration and had not completed the requirements of Continuing Professional Development (“CPD”) provided for by the Migration Agents Regulations 1998 (Cth) (“the Regulations”) made pursuant to the Act prior to 21 September 2000. On 5 and 6 October 2000 the applicant purported to complete satisfaction of CPD requirements. The applicant then sought registration as a registered agent. On 28 November 2000 the Authority refused the applicant’s application on the ground that:
“… the Authority is not satisfied that you have met the requirements prescribed by the regulations for continuing professional development of registered agents pursuant to s 290A of the Act.”
The respondent sought review of that decision by the AAT which held that the Regulations required that the applicant satisfy the CPD requirements by 21 September 2000 but that he had failed to do so, with the result that the prohibition imposed by s 290A applied, and the decision of the Authority was affirmed.
STATUTORY BACKGROUND
The critical sections of the Act are as follows:
“290A Applicant for repeat registration must not be registered if he or she has not done continuing professional development
If the applicant has been registered at some time in the 12 months before making the application, he or she must not be registered if the Migration Agents Registration Authority is satisfied that the applicant has not met the requirements prescribed by the regulations for continuing professional development of registered agents (emphasis added).
…
299 Period of registration
(1)Subject to sections 302 and 303 and subsection (3), the registration of a registered agent lasts for 12 months after the registration.
…
301Migration Agents Registration Authority must warn of expiry
One month before the period for which a registered agent is registered will end under section 299, the Migration Agents Registration Authority must give the agent a written notice stating when the period will end.”
There are no provisions which enable cancellation or suspension of registration due to failure to comply with the requirements for CPD, although such provisions exist for other causes.
The critical provisions of the Regulations are as follows:
“6. For section 290A of the Act, the requirements of continuing professional development of registered agents are set out in Schedule 1.” (emphasis added)
Schedule 1 of the Regulations states:
“1. A migration agent must, in the year ending on the anniversary of the migration agent’s previous registration, complete approved activities that have a value of at least 10 points.” (emphasis added)
PRIMARY DECISION
The applicant appealed to the Federal Court pursuant to s 44 of the AAT Act and the primary judge held:
(1)that the ordinary meaning of Item 1 of Schedule 1 of the Regulations is that it required the satisfaction of the CPD obligation by 21 September 2000. In this his Honour agreed with the Authority and the AAT;
(2)that Item 1 of Schedule 1 of the Regulations so construed would be invalid because it is inconsistent with the scheme of Part 3 of the Act, in particular s 290A, as it imposes a requirement, being that the CPD activities be completed during the course of the previous year of registration, that is not present in s 290A and is inconsistent with the words “has met” in that section. His Honour found that Item 1 of Schedule 1 went beyond merely subsidiary means of carrying into effect what is enacted in the Act itself or being incidental to the execution of explicit provisions of the Act as provided for in Shanahan v Scott (1967) 96 CLR 245 (“Shanahan”) (particularly at 250);
(3)that s 46(1)(b) of the Acts Interpretation Act 1901 (Cth) was applicable enabling the regulation to be read so as to avoid invalidity. His Honour held that as the Governor-General could have made a regulation requiring that applicants for re-registration as migration agents complete the prescribed courses prior to the application for re-registration but subject to no other time limit and that that meaning should be applied to Item 1 of Schedule 1, with the consequence that the applicant would qualify for registration and the decisions of the AAT and the Authority were wrong.
ARGUMENT ON APPEAL
The arguments on appeal were the same in substance as those at first instance, with the exception that there was no challenge to the decision of his Honour as to the ordinary construction of Item 1 of Schedule 1. The arguments therefore focussed on the invalidity of the regulation and appear sufficiently from the judgement appealed from and from these reasons.
DECISION
I do not, with respect, agree that the Regulations are beyond power unless they are read down pursuant to s 46(1)(b) of the Acts Interpretation Act. Section 290A of the Act in terms contemplates that there will be requirements prescribed by regulations for CPD of registered agents. The Regulations do provide for CPD of registered agents. Indeed, it would be odd if they provided for CPD of persons other than registered agents. For example, in the present case, when the continuing professional points were “earned” the applicant was not registered. CPD is a well understood concept in many fields. It is designed to keep the knowledge of licensed practitioners up to date. It is quite distinct from qualification to practise. This dichotomy appears in the Act. Qualification is dealt with by s 290 of the Act and separate Regulations. CPD is dealt with by s 290A of the Act and was introduced as part of a comprehensive set of legislative provisions revising the regulation of registered migration agents.
Until then, registered migration agents were entitled to automatic renewal of registration upon payment of a prescribed fee. The amendments introduced to the Act by the Migration Legislation Amendment (Migration Agents) Act 1977 (Cth) provide for a twelve month period of registration (s 299 of the Act) and the consequent necessity to apply each year for repeat registration, with an obligation on the Authority to remind the agent of that obligation one month before expiry of the current registration (s 301 of the Act). An agent already registered is exempted from the obligation to give notice and to advertise. That obligation applies to initial applicants (s 288(1A) of the Act). If s 290A has not been complied with, registration is forbidden (s 289). Attention focussed on Item 1 of Schedule 1 in his Honour’s judgment, but this is but one clause in a scheme of CPD, the establishment of which was one of the clear objectives of the legislature in bringing in the 1997 amendments, and which must be taken by the Court to be, as it plainly is, in the public interest.
As I have said, s 290A requires the prescribing of regulations for CPD of registered agents. Section 504(1) of the Act provides:
“504 Regulations
(1)The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act …”
Regulation 6 and Schedule 1 provides a sensible and coherent scheme for the CPD of registered agents. Amongst other things, it requires the accumulation of at least ten points for each year of registration. This is, in itself, sensible and coherent. If a registered practitioner does not achieve those points, then he or she has not met the prescribed requirements. It was suggested during argument that such an inflexible system might work hardship in the event, for example, of extended illness or absence overseas. That may be so, although the speed with which the respondent was able to accrue points when he was motivated would point in the other direction. The Court is in no position to judge how the scheme operates in practice. We have not even been taken to the detail of it. Any licensing system can throw up instances of hardship. That does lead to invalidity. This scheme is well within the bounds of s 504(1) of the Act.
In my opinion, counsel for the appellant is correct in his submission that the regulations here do not widen the purposes of the Act, add new and different means of carrying out or depart from or vary the plan which the legislature has adopted to attain its ends as was held in Shanahan (at 250). He obtains support from the authorities to which he referred, including Morton v Union Steamship Co of New Zealand (1951) 83 CLR 402 (particularly at 410) and One Tel Ltd v Australian Communications Authority [2001] FCA 54 (per Hill J at par 72) and at first instance at (2000) 176 ALR 529 (per Hely J at 537). The principles are explained in D Pearce and S Argument, Delegated legislation in Australia (Butterworths, 2nd Ed, 1999 (at par 14.3). In my opinion, the decision relied upon by counsel for the respondent of Minister for Immigration & Multicultural Affairs v Singh (2000) 171 ALR 53 (particularly at pars 63 to 65) was a very different case, where the delegated legislation had an effect which was actually contrary to the express provisions of the statute.
I do not agree with the submission that the words “has met” in s 290A of the Act compel a different result. They simply mean that the applicant must show that he or she has met the requirements of the Regulations as they stand by the time the matter is to be considered. Those words say nothing as to the content of the regulations, including temporal aspects of them. In my opinion, to construe s 290A as submitted is to accept the implicit invitation of the respondent’s counsel which is, in effect, to concentrate on the position of the respondent and, in so doing, ignore the clear parliamentary intention and bring down a scheme judged to be required in the public interest.
Whilst it is not necessary to resort to other matters to arrive at this result, it is worth recalling that there are circumstances where regulations and the statute may, in effect, be construed together. This is applicable where, as here, legislative amendments result in “a framework built on by contemporaneously prepared regulations”, in which case the latter may be a reliable guide to the meaning of the former: see Hanlon v The Law Society [1981] AC 124 (at 194), cited in Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915 per Black CJ, Heerey and Sundberg JJ (at par 41).
Each side pointed to passages in the Second Reading Speeches to the Migration Legislation Amendment (Migration Agents) Bill 1997 (Cth) (Hansard, Senate, 11 November 1997, AGPS, Canberra) which it was claimed supported their respective arguments. I do not need to resort to this assistance but, if I did, I would find more support for the contentions of the appellant rather than those of the respondent.
Something was made in argument of the unreasonable result which would follow in this case, and similar cases, by the operation of s 291 of the Act, which, it was suggested, would lead to prohibition upon registration for an inordinately long period. It appears that this argument may have affected the way in which the primary judge approached the matter. In my view, even if this point is correct, it cannot circumscribe the proper construction and operation of s 504 of the Act taken together with s 290A. If there is a genuine grievance, it is for the Legislature to amend the Act or for the Executive to amend the Regulations. The result cannot be achieved by construction. As it happens, I disagree with this construction of the effect of s 291 in circumstances such as the present if the registered agent who does not complete the CPD requirements is properly advised. If that person applies as for an initial registration, gives the appropriate notice and runs the gauntlet of objections and de novo scrutiny of qualifications and so on then, in my view, s 291 is no barrier to such an application. If, however, such a person applies for what is called repeat registration, taking advantage of the exemption from giving notice provided by s 288(1A), then he or she will be judged accordingly, and will be refused registration in circumstances where s 291 will have operation. It is unnecessary to explain in detail my reasons for coming to this view or deal with the ramifications of it, as it is not directly in issue. For good reasons no doubt, each party before this Court was happy to argue the case on a wider view than mine as to the operation of s 291.
I should also say that I am far from persuaded that the phrase “has been registered at some time”, which appears in s 290A, means having been in a state of being registered, as put by both parties, rather than having become registered. In the context of a twelve month period of registration, with the necessity to re-apply, and with the express obligation on the Authority to give a one month reminder to the registered agent, it is not unreasonable for the Legislature to work on the basis that an application for repeat registration will be made whilst registration is still on foot, so that it will be effective at the expiry of the then current registration. This is commonplace with various kinds of licences and registrations. It also receives support from s 288(1A). However, again, it is unnecessary to pursue this issue further, as it is not critical to my construction of s 290A for the purposes of this case.
I should add that I do not agree that s 46(1)(b) of the Acts Interpretation Act would save this scheme in the way proposed by the primary judge or in any other way if (contrary to my opinion) it were otherwise invalid. That section is as follows:
“(1)Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:
(a)…
(b)any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power.”
In my opinion, it does not authorise redrafting of a regulation to, as in this case, alter the date by which the points are to be obtained and remove the requirement that the party be a registered agent. Even if it did, the solution proposed is not satisfactory as it does not give any time period during which the points are to be accumulated, that is, there is no commencement point fixed and no satisfactory end point fixed. The fixing of these points involves policy choices in which a court should not become involved. The preconditions referred to in Gould v Brown as liquidator of Amann Aviation Pty Ltd (in liq) (1998) 193 CLR 346 in relation to s 15A of the Acts Interpretation Act (a similar section) are not satisfied. However, again, it is not necessary to pursue this issue at length. Firstly, it is moot as far as I am concerned. Secondly, the parties are agreed that if invalidity of the regulation is upheld, then the respondent succeeds with or without the application of s 46(1)(b) of the Acts Interpretation Act. The appropriateness of this concession is not a matter for us.
CONCLUSION
I would allow the appeal and restore the order of the AAT confirming the decision of the Authority. The respondent to the appeal, Goldsmith, should pay the costs of the appeal and of the proceedings at first instance. I would hear any application the respondent is advised to make under the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.
Associate:
Dated: 22 June 2001
Counsel for the Applicant: G J Johnson Solicitor for the Applicant: Spark Helmore Counsel for the Respondent: R T Beech-Jones Solicitor for the Respondent: Goldsmith Lawyers Date of Hearing: 24 May 2001 Date of Judgment: 22 June 2001
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