Minister for Immigration v Roberts
[2011] FMCA 77
•25 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MINISTER FOR IMMIGRATION v ROBERTS & ANOR | [2011] FMCA 77 |
| MIGRATION – Migration Review Tribunal – standard business sponsor – false and misleading information – new legislative regime – whether retrospective. |
| Legislative Instruments Act 2003, s.12 Migration Act 1958, ss.140M, 140L, 140K Migration Legislation Amendment (Worker Protection) Act 2008, item 45 of Schedule 1 Migration Regulations 1994, reg 2.90 |
| Baker v R (2004) 223 CLR 513 (2004); (2004) 78 ALJR 1483; 210 ALR 1; [2004] HCA 45 Bennion on Statutory Interpretation, Lexis Nexis, Fifth Edition, 2008 |
| Applicant: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| First Respondent: | VENUS INOCENCIA ROBERTS (TRADING AS HALLS CREEK BAKERY) |
| Second Respondent | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1512 of 2010 |
| Judgment of: | Riley FM |
| Hearing date: | 8 February 2011 |
| Date of Last Submission: | 8 February 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 25 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Horan |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the First Respondent: | No appearance |
| Solicitors for the Respondent: | No appearance |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | No appearance |
ORDERS
There be an order in the nature of certiorari to bring in to court and quash the decision of the second respondent in matter 1004962 made on 24 September 2010.
There be an order in the nature of mandamus requiring the second respondent to rehear and determine according to law the first respondent’s application for review of the decision of the delegate of the applicant that was made on 31 May 2010.
No order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1512 of 2010
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Applicant
And
| VENUS INOCENCIA ROBERTS (TRADING AS HALLS CREEK BAKERY) |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application by the Minister for review of a decision of the Migration Review Tribunal.
The first respondent applied for approval as a standard business sponsor under Division 3A of Part 2 of the Migration Act 1958 (“the Act”). That approval was given on 5 August 2008. In the meantime, the first respondent had nominated her brother for the position of cook at her bakery. The nomination was approved and the brother entered Australia on 22 November 2008.
In the course of an audit, it was discovered that the first respondent’s bakery had ceased trading before the brother’s arrival in Australia. The brother had never worked as a cook in the first respondent’s bakery, but had instead found work on a building site.
On investigation, a delegate of the Minister found that the first respondent:
a)had failed to comply with her sponsorship undertakings in various respects; and
b)had provided three items of false or misleading information to the Department.
Applying s.140M of the Act, the delegate barred the first respondent for five years:
a)from sponsoring more people for a subclass 457 business long stay visa under her existing approval as a standard business sponsor; and
b)from making future applications for approval as a standard business sponsor.
The Tribunal on review noted that the Act and the Migration Regulations 1994 (“the Regulations”) had been relevantly amended with effect on and from 14 September 2009, being a date between the provision of the false or misleading information and the delegate’s decision. The Tribunal considered that it should not take into account the provision of the false or misleading information for reasons which it explained at paragraphs 5 to 10 of its reasons for decision. Those paragraphs are as follows:
5.Prior to 14 September 2009, Division 3A of the Act provided for cancelling of a sponsorship, or barring of a sponsor if an undertaking was breached, or in other circumstances: ss.140J, 140K and 140L. Regulations 1.20HA and 1.20HB prescribed the circumstances in which such actions may be taken, and the criteria to be considered when deciding whether to take an action. These provisions were repealed with effect from 14 September 2009, and replaced with a new scheme that permits sanctions to be imposed on sponsors and former sponsors for failing to satisfy sponsorship obligations and for other reasons: Migration Legislation Amendment (Worker Protection) Act 2008 and Migration Amendment Regulations 2009 (No.5). In the case of a person who has breached an undertaking prior to 14 September 2009, the Minister, or Tribunal on review, can no longer take a cancelling or barring action under s.140L as it stood prior to 14 September 2009, but may instead take one or more of the actions in s.140M, as amended. According to the Explanatory Memorandum to the Migration Legislation (Worker Protection) Bill 2008, s.140M is intended to maintain the effect of the cancelling and barring provisions set out in the repealed s.140L: at [148]. However, in applying s.140M, regard must be had to the prescribed circumstances and criteria in repealed r.1.20HA and r.1.20HB: Migration Legislation Amendment (Worker Protection) Act 2008, item 45(6).
6.Against that background, the Tribunal concludes that where it is reviewing a decision to bar or cancel a sponsor as a result of breaches of undertakings occurring before 14 September 2009, it can no longer take action under s.140L as in force prior to that date. Instead, the Tribunal may take the actions specified in s.140M (to bar or cancel a sponsor’s approval) and the circumstances in which those actions may be taken are now prescribed under s.140L. However, for these cases, the relevant prescribed circumstances and criteria are those in the repealed r.1.20HA and r.1.20HB (as in force immediately before 14 September 2009). The Tribunal notes that the transitional provisions accompanying these changes specifically relate to circumstances in which a person has breached an undertaking prior to 14 September 2009 and clearly have the effect of preserving the old circumstances and criteria in r.1.20HA in relation to the review of such cases.
7.However, the Tribunal’s powers and responsibilities with respect to the review of sanctions imposed for the provision of false information are less clear. Faced with that lack of clarity and the absence of relevant judicial guidance, the Tribunal takes the view that such breaches should be treated in a comparable fashion to breaches of sponsorship undertakings, discussed above. That is, where the breach occurred prior to 14 September 2009, it should be treated as a breach of the repealed r.1.20HB, but subject to the new sanctions regime of s.140M, after taking into account the criteria enumerated at r.1.20HB, Item 1 or 2, as appropriate.
8.The Tribunal notes that all of the alleged breaches giving rise to the sanctions imposed on the sponsor in the present case occurred prior to 14 September 2009, and are of two kinds; breaches of undertakings and providing false information to the Minister. Whilst the delegate, in what is otherwise a very impressive and thoroughly-researched decision, has correctly cited the sponsor for alleged breach of its undertakings under the old r.1.20CB(1) regime, she has cited it for three breaches of r.2.90, despite the fact that all relevant contraventions occurred well before 14 September 2009. In the Tribunal’s assessment, the latter transgressions should appropriately have been assessed against, and if appropriate cited as, breaches of r.1.20HB Items 1(b), (c) and (d), and sanctioned under s.140M, after considering the factors set forth at r.1.20HB, Items 1(a) and (b). This is not an academic or idle point, since the contraventions described in r.1.20HB and r.2.90 respectively are substantially different.
9.Accordingly, the Tribunal has decided since the date of the hearing that it has no alternative but to find that the sponsor did not commit the three breaches of r.2.90 particularised in the delegate’s decision record, notwithstanding that she may have admitted to them at various stages in the primary decision/review process, presumably in ignorance of her legal position. She was, in essence, sanctioned for three counts of an administrative offence that did not exist at the relevant time. Those three alleged breaches were:
· Reg. 2.90 – Providing an incorrect ABN on the pay records of the sponsored person
· Reg. 2.90 – Providing an incorrect business street address on the nomination application
· Reg. 2.90 – Providing false information about the operational status of the sponsored person’s workplace at a time when it was in fact inoperative.
10.The Tribunal’s attention has been drawn to the distinction between cancellations under s.109 and s.116 of the Act respectively, and it has been suggested that the present matter is akin to a s.116 cancellation, insofar as it is not bound by the delegate’s particularisation and classification of the applicant’s alleged misdeeds, as in the case of a s.109 cancellation, but may make findings in relation to matters not considered by the primary decision maker. On that basis, it has been suggested that the Tribunal may lawfully assess the applicant’s alleged misconduct against the pre-14 September 2009 criteria at r.1.20HB, instead of those at r.2.90, and make corresponding findings. The Tribunal, while not disputing the technical soundness of this advice, is most reluctant to follow it, if for no other reason than that by placing itself in the role of primary decision maker in this way, it effectively deprives the applicant of the possibility of merits review in the event of an adverse decision. It has therefore resolved to adopt the course set out at paragraph 9 above in relation to the r.2.90 matters, and confine itself to merits review of the decisions relating to alleged breaches of undertakings and the appropriateness of the sanctions imposed by the delegate.
The Tribunal went on to vary the delegate’s decision by reducing the period of the bar from five years to three years.
The Minister argued before this court that the Tribunal was in error in not taking into account the false and misleading information. The first respondent did not participate in the proceedings but filed a submitting appearance save as to costs. The second respondent did not appear at all.
Grounds of application
The Minister stated the following as the grounds of his application:
Ground 1
In reaching his decision the second respondent failed to take into account relevant considerations, being three instances when the first respondent provided false information to the applicant;
Particulars
The first respondent provided false information to the applicant in relation to
a)the ABN on the pay records of a person sponsored by the first respondent;
b)the street address of the first respondent on the nomination application; and
c)the operational status of the first respondent’s Halls Creek Bakery place of business.
The second respondent failed to take into account these three instances of the provision of false information in reaching his decision. He should have found that these three instances of provision of false information were in breach of the Migration Regulations 1994 (Cth), and that sanctions should apply as provided for under s 140M of the Migration Act 1958 (Cth).
Ground 2
In reaching his decision the second respondent mistakenly determined that he was unable to apply Regulation 2.90 of the Migration Regulations 1994 (Cth) to instances of the first respondent providing false information to the applicant.
Particulars
The second respondent’s determination that he was unable to apply Regulation 2.90 because it was introduced after the provision of the false information occurred was an error. He should have found that Regulation 2.90 was current at the time that the primary decision was made, related to false or misleading information provided by a standard business sponsor, and provided an additional circumstance where the applicant could take one or more of the actions provided for under s 140M of the Migration Act 1958 (Cth).
Legislation
The amendments which became effective on 14 September 2009 changed the sponsorship regime by, among other things, replacing sponsorship undertakings with sponsorship obligations, and formulating the consequences of failing to comply with sponsorship obligations.
Since 14 September 2009, s.140K to s.140M of the Act have provided that:
Section 140K
Sanctions for failing to satisfy sponsorship obligations
Actions that may be taken in relation to approved sponsors
(1) If a person is an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken:
(a) the Minister may do one or more of the following:
(i) if regulations are prescribed under section 140L, bar the sponsor under subsection 140M(1) from doing certain things;
(ii) if regulations are prescribed under section 140L, cancel the person's approval as a sponsor under subsection 140M(1);
(iii) apply for an order for a civil penalty under Part 8D;
(b) the person may be issued with an infringement notice, as an alternative to civil penalty proceedings, under section 140R;
(c) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.
Actions that may be taken in relation to former approved sponsors
(2) If a person was an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken:
(a) the Minister may do either or both of the following:
(i) if regulations are prescribed under section 140L, bar the person under subsection 140M(2) from making future applications for approval;
(ii) apply for an order for a civil penalty under Part 8D;
(b) the person may be issued with an infringement notice, as an alternative to civil penalty proceedings, under section 140R;
(c) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.
(3) To avoid doubt, subsections (1) and (2) do not limit the circumstances in which:
(a) the Minister may:
(i) bar a sponsor under section 140M from doing certain things; or
(ii) cancel a person's approval as a sponsor under section 140M; or
(b) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.
Section 140L
Regulations may prescribe circumstances in which sponsor may be barred or sponsor's approval cancelled
Circumstances in which the Minister may take action
(1) The regulations may prescribe:
(a) either or both of the following:
(i) circumstances in which the Minister may take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;
(ii) other circumstances in which the Minister may take one or more of the actions mentioned in section 140M; and
(b) the criteria to be taken into account by the Minister in determining what action to take under section 140M.
Circumstances in which the Minister must take action
(2) The regulations may prescribe either or both of the following:
(a) circumstances in which the Minister must take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;
(b)other circumstances in which the Minister must take one or more of the actions mentioned in section 140M.
(3) Different circumstances and different criteria may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been, approved as a sponsor.
Section 140M
Cancelling approval as a sponsor or barring a sponsor
Actions that may be taken in relation to approved sponsors
(1) If regulations are prescribed under section 140L, the Minister may (or must) take one or more of the following actions in relation to an approved sponsor:
(a) cancelling the approval of a person as a sponsor in relation to a class to which the sponsor belongs;
(b) cancelling the approval of a person as a sponsor for all classes to which the sponsor belongs;
(c) barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals for different kinds of visa (however described);
(d) barring the sponsor, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).
Action that may be taken in relation to former approved sponsors
(2) If regulations are prescribed under section 140L and a person was an approved sponsor, the Minister may (or must) bar the person, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).
Also since 14 September 2009, reg. 2.90 has provided that:
Regulation 2.90
Provision of false or misleading information
(1) This regulation applies to a person who is or was:
(a) a standard business sponsor; or
(b) a professional development sponsor; or
(c) a temporary work sponsor.
(2)For subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance is that the Minister is satisfied that the person has provided false or misleading information to Immigration or the Migration Review Tribunal.
(3)For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:
(a)the purpose for which the information was provided; and
(b)the past and present conduct of the person in relation to Immigration; and
(c) the nature of the information; and
(d)whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person; and
(e)whether the information was provided in good faith; and
(f)whether the person notified Immigration immediately upon discovering that the information was false or misleading; and
(g) any other relevant factors.
The amendments to the Act were introduced by the Migration Legislation Amendment (Worker Protection) Act 2008. That Act contained transitional provisions in item 45 of Schedule 1 as follows:
(1)This item applies in respect of a person who, immediately before this Schedule commences:
(a) is a standard business sponsor; or
(b)is an approved sponsor, other than an approved professional development sponsor.
(2)The new law applies to the person, on and after the day on which this Schedule commences, as if the person were approved as a sponsor under section 140E of the new law in relation to the class prescribed by the regulations for standard business sponsors.
(3)The terms specified in the person’s approval as a sponsor under section 140G of the old law continue to apply, on and after the day on which this Schedule commences, to the person.
(4)A term of a kind specified in the person’s approval as a sponsor under section 140G of the old law may be prescribed by the regulations for the purposes of paragraph 140GA(2)(a) of the new law.
Note: This means that the term may be varied under section 140GA of the new law.
(5)If the person had made an undertaking under section 140H of the old law, then, on and after the day on which this Schedule commences:
(a) the undertaking ceases to have effect; and
(b)the person must satisfy any applicable sponsorship obligation prescribed by the regulations under section 140H of the new law.
(6)However, if, before the day on which this Schedule commences, the person breaches an undertaking made under section 140H of the old law, then section 140M of the new law applies as if regulations made under sections 140J and 140K of the old law (and as in force immediately before this Schedule commences) were regulations prescribed under section 140L of the new law.
(7) To avoid doubt, the new law applies:
(a)in the case of a partnership – in respect of a partner even if the partner has not made an election under section 140Z of the old law in relation to a sponsorship obligation; and
(b)in the case of an unincorporated association – in respect of a member of the committee of management of the association even if the member has not made an election under section 140ZE of the old law in relation to a sponsorship obligation.
Minister’s contentions
The Minister contended that:
a)the Tribunal was wrong to have excluded from its consideration the false and misleading statements made by the first respondent to the Department;
b)reg. 2.90 operates according to its terms, without the need for any application of the transitional provisions; and
c)applying reg. 2.90 according to its terms does not give an objectionable, retrospective effect to reg. 2.90 or s.140M.
The Minister accepted that an Act will be presumed to not have a retrospective operation unless it clearly says otherwise. A classic statement of the relevant principle is in the judgment of Dixon CJ in Maxwell v Murphy(1957) 96 CLR 161; (1957) 31 ALJR 143; [1957] ALR 231 at 267 where his Honour said:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
However, the Minister submitted that the position was not entirely straightforward. For example, in Coleman v The Shell Company of Australia Limited (1943) 45 SRNSW 27, Jordan CJ said at 30 to 31:
As to the first question, it is to be noted that there has been some ambiguity in the use of the word “retrospective.” In some cases, it has been said that it would give a retrospective operation to a statute to treat it as impairing an existing right or obligation or creating a new right or obligation: In re School Board Election for Parish of Pulborough[1]; In re Athlumney.[2] On the other hand, it was said by Buckley L.J in West v Gwynne[3] that an Act is retrospective if it provides that as at a past date the law shall be taken to have been that which it was not. It is not retrospective because it interferes with existing rights. Most Acts do. There is no presumption that interference with existing rights is not intended; but there is a presumption that an Act speaks only as to the future. Similarly it has been said that an amendment of a section in an Act makes it retrospective in its original form but not retrospective so far as it is new: Ex parte Todd.[4]
Upon a consideration of the authorities, I think that, as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.
[1] [1892] 3 Ch. 402 at 420-1
[2] [1898] 2 Q.B. 547 at 551-2.
[3] [1911] 2 Ch. 1 at 11-12.
[4] (1887) 19 Q.B.D. 186 at 195.
That passage was referred to with approval by the High Court in Baker v R (2004) 223 CLR 513 (2004); (2004) 78 ALJR 1483; 210 ALR 1; [2004] HCA 45 at [30]. The Minister also relied on the following statement in Bennion on Statutory Interpretation, Lexis Nexis, Fifth Edition, 2008 at page 317, saying that example 97.3 was particularly apposite to the present case:
It is important to grasp the true nature of objectionable retrospectivity, which is that the legal effect of an act or omission is retroactively altered by a later change in the law. However, the mere fact that a change is operative with regard to past events does not mean that it is objectionably retrospective. Changes relating to the past are objectionable only if they alter the legal nature of a past act or omission in itself. A change in the law is not objectionable merely because it takes note that a past event has happened, and bases new legal consequences upon it.
Example 97.3 The Estate Agents Act 1979, which introduced a new scheme for the regulation of estate agents, authorises the making of an order prohibiting a person from engaging in estate agency work if he appears unfit to practice on any of various grounds including that he ‘has been convicted of an offence involving fraud or other dishonesty or violence’. Held This includes a conviction incurred before the commencement of the 1979 Act because that indicated unfitness just as much as a conviction incurred after the commencement would.[5]
[5] Antonelli v Secretary State for Trade and Industry [1998] QB 948. See also R v Field, R v Young [2002] EWCA Crim 2913, [2003] 3 All ER 769 at [60] (order under Criminal Justice and Court Services Act 2000 s 28); R (on the application of Wright and others) v Secretary of State for Health and another [2006] EWHC 2886, [2007] 11 All ER 825 at [26].
Consideration
The authorities relied on by the Minister concerned Acts of Parliament. There are various other authorities to the same effect. For example, in La Macchia v Minister for Primary Industry (1986) 72 ALR 23, in the Full Federal Court Toohey J, with whom Bowen CJ agreed, said at page 26:
Secondly, while the Minister could not have given a notice prior to the sub-section coming into operation, he was not constrained thereafter to rely upon a conviction that itself occurred after the sub-section came into operation. The commission of an offence, whether before or after 31 August 1985, is a circumstance warranting the giving of notice under sub-s (3A). The order does not have retrospective effect simply because it relies upon conduct that occurred before the power existed see Re a Solicitor’s Clerk [1957] 1 WLR 1219 at 122; O’Neill v Reid [1959] NZLR 331 at 335-6; Customs and Excise Commissioners v Thorn Electrical Industries Ltd [1975] 1 All ER 439 at 447-8.
Similarly, French J, as his Honour then was, said at page 33:
The fact that the power to cancel a licence under sub-s.9A(3A) is conditioned upon a class of past events, does not mean that the inclusion in that class, of events which predated the law, renders its operation retrospective.
In Re A Solicitor's Clerk (1957) 1 WLR 1219 the Disciplinary Committee of the Law Society had made an order under s.16(1) of the Solicitors' Act 1941, as amended by s.11(1) of the Solicitors' (Amendment) Act 1956, directing that no solicitor should thereafter employ the appellant, a solicitor's clerk who had been convicted of larceny in 1953 without the permission of the Law Society. The appellant contended that the Committee was giving retrospective effect to the Act of 1956 by applying it to a conviction which took place in 1953. Lord Goddard CJ, with whom Barry and Havers JJ, agreed said (at 1222):-
"...In my opinion this Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as a solicitor's clerk in the future and what happened in the past is the cause or reason for the making of the order, but the order has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before the order was made should be void or voidable, or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force or before the order was made. This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past…".
The principle against retrospectivity was perhaps most simply stated by the Full Court of the Supreme Court of Victoria in Robertson v City of Nunawading [1973] VR 819 at 824 where the court said:
… this principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that … .
While the Parliament can choose to give Acts of Parliament a retrospective operation by clear words to that effect, the prohibition on Commonwealth delegated legislation having a retrospective operation is virtually absolute. Section 12 of the Legislative Instruments Act 2003 provides as follows:
(1)Subject to subsection (2), a legislative instrument that is made on or after the commencing day, or a particular provision of such an instrument, takes effect from:
(a)the day specified in the instrument for the purposes of the commencement of the instrument or provision; or
(b)the day and time specified in the instrument for the purposes of the commencement of the instrument or provision; or
(c)the day, or day and time, of the commencement of an Act, or of a provision of an Act, or of the occurrence of an event, that is specified in the instrument for the purposes of the commencement of the instrument or provision; or
(d) in any other case--the first moment of the day next following the day when it is registered.
Note: There are certain instruments that, by virtue of subsection 55(2), are made before, but treated as having been made on, the commencing day.
(2)A legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered and as a result:
(a)the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration would be affected so as to disadvantage that person; or
(b)liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration.
(3)The effect of subsections (1) and (2) on a legislative instrument is subject to any contrary provision for commencement of the instrument in the enabling legislation for the instrument if the enabling legislation is an Act or a provision of an Act.
However, the present case does not concern retrospective delegated legislation. That is because reg. 2.90 of the Regulations is not retrospective in any objectionable sense. Rather, in the words of Robertson, reg. 2.90:
… merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future ….
By applying reg. 2.90 and being satisfied that an approved business sponsor had provided false or misleading information to the department at any time in the past, the Minister was authorised by s.140M of the Act to bar the sponsor for a period of time from:
a)sponsoring more people under his or her existing approval; and
b)making future applications for approval as a sponsor.
Although the sponsor’s existing right to sponsor was thereby limited, it was only limited for prospective sponsorships and prospective approvals. Thus, on ordinary principles, the operation of the legislative scheme was not retrospective. Accordingly, the Tribunal was in error in excluding from its consideration the three instances in which the first respondent gave false and misleading information to the department.
The Minister suggested that, rather than remitting the matter to the Tribunal for reconsideration, it may have been possible for the court to substitute for the Tribunal’s decision the five year bar that the delegate had originally imposed. This suggestion was made on the basis that it appeared that the only reason that the Tribunal did not affirm the five year bar was the view that the Tribunal took of the retrospectivity issue.
It was not unequivocally stated by the Tribunal that it would have affirmed the delegate’s decision but for the view the Tribunal took of the retrospectivity issue. As the Tribunal’s decision is discretionary, and as many factors are taken into account in determining the sanction ultimately imposed, I consider that it would be wrong of this court to reinstate the delegate’s decision. The matter will be remitted to the Tribunal for further consideration according to law.
The applicant in his application did not seek an order for costs. The respondents did not participate in the proceedings. The first respondent did nothing to necessitate the current application. In the circumstances, there will be no order as to costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 25 February 2011
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