Minotaur Constructions (ACT) Pty Ltd v Construction Occupations Registrar (Occupational Discipline)
[2014] ACAT 43
•17 July 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MINOTAUR CONSTRUCTIONS (ACT) PTY LTD v CONSTRUCTION OCCUPATIONS REGISTRAR (Occupational Discipline) [2014] ACAT 43
OR 13/50
Catchwords: OCCUPATIONAL DISCIPLINE – CONSTRUCTION OCCUPATION -– principles of statutory construction in relation to regulatory statutes - construction of sections 19(1), 19(4) and 19(6) of the Construction Occupations (Licensing) Act 2004 (COLA) - tribunal’s jurisdiction and power to make orders under section 19(6) of the COLA - the duty of Registrar to issue, or refuse to issue, licence on application is mandatory – Registrar’s decision must be made “as soon as possible” – decision under review was made outside the permitted time frame - section 19(1), 19(4) and 19(6) are limited to the facts as they existed at the date of the licence application - - regard can be had to evidence to the date of hearing that shed light on relevant facts at the date of licence application - Registrar’s refusal of licence is ultra vires – tribunal’s power and jurisdiction to review Registrar’s ultra vires decision - “accrued rights” to the benefit of the law as it stood at the date of the licence application.
Legislation:ACT Civil and Administrative Tribunal Act 2008, ss 68 and 69
Construction Occupation (Licensing) Act 2004, ss 15, 17, 19, 28, 123, 123A and 123C
Legislation Act 2001, ss 146 and 151B
Subordinate
Legislation:Construction Occupations (Licensing) Regulation 2004, ss 15, and 19, and schedule 4
Cases:B & T Constructions (ACT) P/L v Constructions Registrar and the Owners – Unit Plan 3324 [2013] ACTSC 219
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
Collector of Customs (NSW) v Brian Lawlor Automotive P/L (1979) 41 FLR 338
Comcare Australia v Lees (1997) 151 ALR 647
Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410
Commonwealth v Progress Advertising and Press Agency Co P/L (1910) 10 CLR 45
Drake v Minister For Immigration and Ethnic Affairs (1979) 2 ALD 60
Esber v Commonwealth [1992] HCA 20
Georgalis v ACT Planning and Land Authority [2012] ACAT 1
Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24
R & R Fazzolari P/L v Parramatta City Council (2009) 237 CLR 603
Re Sarina and Secretary, Department of Social Security [1988] 14 ALD 437
Reilly and Secretary, Department of Social Security (1987) 12 ALD 407
Ruchschloss v Simmons and Middlemiss (No2) [2013] ACTSC 133
Secretary, Department of Family & Community Services v Holmes [2000] FCA 513
Shi v Migration Agents Registration Agency [2008] HCA 31
Springhall v Kirner [1988] VR 159
Sunol v Collier [2012] NSWCA 14
Texts/Papers: Pearce D.C. and Geddes R.S, Statutory Interpretation in Australia, 7th Edition
Tribunal:Mr A. Anforth – Senior Member
Date of Orders: 17 July 2014
Date of Reasons for Decision: 17 July 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL OR 13/50
BETWEEN:
MINOTAUR CONSTRUCTIONS
(ACT) PTY LTD
Applicant
AND:
CONSTRUCTION OCCUPATIONS
REGISTRAR
Respondent
TRIBUNAL: Mr A. Anforth – Senior Member
DATE:17 July 2014
FINDINGS
The decision of the Respondent of 11 December 2013 pursuant to section 19 of the Construction Occupations (Licensing) Act 2004 (the COLA) to refuse the Applicant a builder’s licence is ultra vires.
Notwithstanding finding 1, the Tribunal has jurisdiction to review the purported decision.
The proper construction of sections 19(1), 19(4) and 19(6) of the COLA limits relevant facts to those that existed at the date of the licence application lodged on 10 April 2013.
As at the date of the licence application on 10 April 2013 there was no factual basis for the lawful application of sections 19(1) or 19(4) of the COLA to refuse the Applicant a licence, or of section 19(6) of the COLA to defer the making of a decision on the licence.
Independently of findings 3 and 4 above, as at 10 April 2013 the present form of section 19(4) COLA did not exist and therefore this provision does not apply to the licence application of that date.
A decision made under section 19(6) COLA is not a ‘reviewable decision’ for the purposes of section 123A COLA.
ORDERS:
The application is to be listed for directions for the further consideration.
………………………………..
Mr A. Anforth – Senior Member
REASONS FOR DECISION
An overview of the history of the matter
On 10 April 2013, Minotaur Constructions (ACT) P/L (the Applicant) lodged an application with the Construction Occupations Registrar under section 17 of the Construction Occupation (Licensing) Act 2004 (the COLA) for a Class B builder’s licence with Mr Ivan Bulum and Mr Cornelius Hank Van Roon as the proposed nominees of the company. Mr Bulum and his wife were also the directors. Section 15 of the COLA requires that any licensed company have a nominee who is licensed in the relevant class of work to which the company licence pertains. Mr Van Roon subsequently withdrew his nomination, leaving Mr Bulum as the sole nominee. At all relevant times, Mr Bulum held a Class A builder’s licence (200413703).
The Registrar had been involved in a dispute with Mr Bulum and Mr Van Roon in their capacity as the nominees of B & T Constructions P/L (B & T)\ and in the case of Mr Bulum only as the director of. This dispute related to alleged defective work at the Empire Apartments, the Elara Apartment and the Aviva Apartments in Canberra. The Registrar attributed the defective work to Mr Bulum and Mr Van Roon. It was on the basis of that history that on 11 December 2013 the Registrar refused the licence to the Applicant with Mr Bulum as its director and nominee, pursuant to section 19 of the COLA.
The Registrar provided reasons for the decision of 11 December 2013 that centred on the Registrar’s view that it was not desirable or in the public interest that Mr Bulum be licensed to act in the capacity of the director and licensed nominee of the Applicant. The Registrar recited that the uncompleted rectification work at Empire Apartments. There was also an outstanding issue concerning the Elara Apartments.
The Registrar took the view that the failure by B & T to complete the rectification was a serious breach of the COLA that had the potential to undermine public confidence in the administration of the COLA.
The Registrar determined that the public interest was against the licensing of the Applicant with Mr Bulum as its director and nominee. The Registrar made an affirmative decision to deny the licence, nominating only that the decision was made under section 19 of the COLA, without specifying which sub-section of section 19 was relied upon. From the Registrar’s reasons for decision and the facts of the case it appeared that the Registrar relied upon section 19(4) of the COLA as it then stood.
On 24 December 2013, the Applicant lodged an application with the Tribunal for review of the decision of 11 December 2013.
On 30 January 2014 the Registrar filed disciplinary proceedings in the Tribunal against Mr Bulum and B & T for various alleged non-compliances.
On 11 April 2014, the Applicant filed an application for interim rulings concerning the proper construction of sections 19(1) and 19(4) of the COLA and the Tribunal’s jurisdiction and power to make orders under section 19(6) of the COLA. Written submissions were filed by the parties in the manner set out in the chronology below and the interim application was heard on 19 May 2014. Mr C. Erskine SC of Counsel appeared for the Applicant and Mr G. McCarthy of Counsel appeared for the Registrar.
The parties were invited to make any further oral submissions they wished. There was some discourse between the Tribunal and Counsel and the matter was then reserved for decision on the understanding that the Tribunal would go only so far as to rule on the statutory construction issues after which the parties would further consider their positions.
Chronology of applications and decisions
The following chronology of relevant events is distilled from the Registrar’s reasons for decision, the decision of Burns J in B & T Constructions (ACT) P/L v Constructions Registrar and the Owners – Unit Plan 3324 [2013] ACTSC 219; the affidavit of Mr Benjamin Green; and the Tribunal’s own records. In short, that history appears to be as follows:
18 October 2011 A rectification order was made in relation to B & T for work at the Empire Apartments.
16 October 2011 B & T sought review by the Tribunal.
3 November 2011 The Environment and Sustainable Development Directorate (ESDD) issued a controlled activity order to B & T in respect of activities at the Apartments.
11 July 2012 The Tribunal made a consent order in relation to both the rectification order against B & T and the controlled activity order at Empire Apartments, save in respect of three items which remained outstanding.
6 August 2012 The Tribunal confirmed the rectification and controlled activity orders against B & T in respect of two of the three outstanding items at Empire Apartments.
31 August 2012 B & T lodged an appeal with the Appeal Tribunal in respect of the order of 6 August 2012.
7 November 2012 The Tribunal confirmed the rectification orders against B & T in respect of the third outstanding item at Empire Apartments.
7 February 2013 The appeal by B & T in the Appeal Tribunal was removed to the Supreme Court.
10 April 2013 The Applicant lodged an application for licensing with Mr Bulum as the nominee.
23 July 2013 The ESDD filed two applications with the Tribunal concerning the non-completion of the work required by the rectification orders of 18 October 2011 and 3 November 2011 at the Empire Apartments.
6 November 2013 The Supreme Court delivered a decision dismissing the transferred appeal by B & T and upholding the rectification and controlled activity orders, with a variation that is not presently relevant. An appeal against this decision is still pending in the ACT Court of Appeal.
11 December 2013 The Registrar refused the Applicant’s application for licensing with Mr Bulum as the nominee.
24 December 2013 The Applicant lodged an application with the Tribunal for review of the decision to refuse the licence.
2 January 2014 The General President made procedural directions for the filing of relevant evidence.
30 January 2014 The Registrar filed applications for discipline in relation to Mr Bulum and B & T. These applications have not yet been determined.
11 April 2014 The Applicant filed an application for interim orders concerning the proper construction of section 19 of the COLA and consequently the Registrar’s power to refuse the licence.
17 April 2014 The General President made orders for the filing of submissions in relation to the construction of section 19 and listed the interim application for hearing on 19 May 2014.
6 May 2014The Respondent filed Submissions dated 5 May 2014 on the section 19 construction issue; its List of Authorities and a statement by Mr Benjamin Green with Annexures ‘A’ to ‘Q’. Mr Green is the Deputy Construction Registrar. Mr Green stated that the rectification work at Empire Apartments had not been completed and provided a background to the issues at Elara Apartments
13 May 3014 The Applicant filed its Outline of Submissions on the section 19 construction issue; a statement by Mr Maurice Sebastian Falcetta and its List of Authorities.
The statement by Mr Falcetta was to the effect that the rectification work at Empire Apartments is ‘almost complete’ and has been held up by factors beyond the control of B & T. B & T continued to oppose the disciplinary orders sought in relation to the Elara Apartments.
16 May 2014 The Respondent filed his Submissions in Reply.
The COLA legislation
The right of the Applicant to apply for a construction occupation licence is contained in section 17 of the COLA.
17Licence applications
(1)An individual, corporation or partnership may apply to the registrar to be licensed in a construction occupation or, for a construction occupation that is divided into classes, in an occupation class.
Note 1If a form is approved under s 128 for an application, the form must be used.
Note 2A fee may be determined under s 127 for this section.
Note 3An entity’s entitlement to apply for a licence may be affected by a disqualification (see s 98 (3)).
(2)However, a corporation or partnership may apply under subsection (1) in relation to a construction occupation or occupation class only if the regulations allow a corporation or partnership to be licensed in the occupation or class.
(3)The regulations may prescribe the requirements for applications.
(4)If this Act or the regulations prescribe requirements for applications, the registrar need not consider an application that does not comply with the requirements.
A corporation can only be licensed if it has a relevantly qualified nominee who is responsible for the construction work, pursuant to section 28 of the COLA.
28Nominees of corporations and partnerships
(1)A corporation or partnership is eligible to be licensed only if it complies with subsection (2) or (3).
(2)The corporation or partnership complies with this subsection if—
(a)it has a single nominee appointed by it; and
(b)the nominee is responsible for the supervision of the construction services provided by it.
(3)The corporation or partnership complies with this subsection if—
(a)it has 2 or more nominees appointed by it; and
(b)each nominee is responsible for the supervision of particular construction services provided by it; and
(c)there is a written record of the construction services each nominee is responsible for supervising; and
(d)between them, the nominees are responsible for the adequate supervision of all the construction services to be provided by the corporation or partnership.
(4)A corporation or partnership may, in writing, appoint an eligible individual to be a nominee.
(5)If the nominee is to be responsible for the adequate supervision of only some of the construction services to be provided by the corporation or partnership, the appointment must state the services for which the nominee is responsible.
(6)For subsection (4), an individual is an eligible individual if the individual—
(a)is eligible under the regulations to be appointed as a nominee; and
(b)is licensed in the construction occupation and occupation class (if any) appropriate for each of the construction services for which the individual is to be responsible; and
(c)agrees in writing to the appointment.
(7)A nominee of a corporation or partnership automatically stops being a nominee if the nominee—
(a)ceases to be eligible under the regulations to be appointed as a nominee; or
(b)ceases to be licensed in a construction or occupation class (if any) appropriate for any of the construction services for which the nominee is responsible.
Under section 15 of the Construction Occupations (Licensing) Regulation 2004 (the COLA Regulation), the Applicant is entitled to apply for a builder’s licence provided its nominee is a licensed builder:
15 Corporations and partnerships eligible for some occupations
(1) A corporation or partnership is eligible to be licensed only in the following construction occupations or occupation classes:
…
(b) builder;
…
(2) Also, a corporation or partnership is eligible to be licensed in a construction occupation or occupation class only if the corporation or partnership has a nominee who is licensed in the occupation or class.
…
Under section 19 of the COLA Regulation, a person may be a nominee of a company if they are a director of the company and personally hold the relevant licence being sought by the company:
19Eligibility to be nominee—Act, s 28 (4)
An individual is eligible to be a nominee of a corporation or partnership if—
(a) for a corporation—the individual is a director or employee of the corporation; and
...
(c) the individual is licensed in a construction occupation that the corporation or partnership is licensed in or applying to be licensed in; and
...
(e) for a construction occupation divided into classes—either—
(i)the individual is licensed in the same class as, or a class that allows the exercising of the same functions as, the class the corporation or partnership is licensed in or applying to be licensed in; or
(ii) the corporation or partnership has a nominee mentioned in subparagraph (i); and
...
The power of the Registrar to reject the Applicant’s application for a licence is found in section 19 of the COLA. Prior to 6 August 2013 section 19 read:
19 Decision on licence application
19(1) If an entity applies for a licence for a construction occupation or occupation class, the registrar must issue, or refuse to issue, the licence.
…
(3) The registrar must refuse to issue a licence for a construction occupation or occupation class to an applicant if—
(a) the registrar is not satisfied that the applicant is eligible to be licensed in the occupation or class; or
(b) the applicant is disqualified from holding a licence under section 98 (Licence disqualification).
(4) If an application for occupational discipline in relation to an applicant or nominee of an applicant has been made by the registrar under division 5.2 (Occupational discipline—licensees), the registrar need not decide whether to licence the applicant until the application has been dealt with by the ACAT, and any appeal or review arising from the occupational discipline, is finished.
Section 19 was amended by section 27 of the Construction and Energy Efficiency Legislation Amendment Act 2013 effective 26 August 2013 to read:
19Decision on licence application
(1)If an entity applies for a licence for a construction occupation or occupation class, the registrar must issue, or refuse to issue, the licence.
...
(3)The registrar must refuse to issue a licence for a construction occupation or occupation class to an applicant if—
(a)the registrar is not satisfied that the applicant is eligible to be licensed in the occupation or class; or
(b)the applicant is disqualified from holding a licence under section 98 (Licence disqualification).
(4)The registrar may refuse to issue a licence for a construction occupation or occupation class to an applicant if—
(a)the applicant, a director or nominee of an applicant that is a corporation, or a partner or nominee of an applicant that is a partnership, is a licensee or former licensee (however described) under this Act or a corresponding law who—
(i)is prohibited from providing a construction service (however described) under this Act or a corresponding law; or
(ii)is subject to occupational discipline (however described) under this Act or a corresponding law; or
(iii)the registrar believes on reasonable grounds surrendered a licence (however described) in circumstances that related to a ground for occupational discipline (however described) under this Act or a corresponding law; and
(b)the registrar believes on reasonable grounds that the refusal is necessary or desirable to protect the public.
...
(6)If an application for occupational discipline in relation to an applicant or nominee of an applicant has been made by the registrar under division 5.2 (Occupational discipline—licensees), the registrar need not decide whether to licence the applicant until the application has been dealt with by the ACAT, and any appeal or review arising from the occupational discipline, is finished.
The relevant effect of the amendment to section 19 was to add new section 19(4) effective 26 August 2013 and to renumber former section 19(4) as new section 19(6).
ACAT legislation empowering review of the Registrar’s decision by the Tribunal
Sections 68 and 69 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) set out the power of the Tribunal to review decisions.
68Review of decisions
(1)This section applies if the tribunal reviews a decision by an entity.
(2)The tribunal may exercise any function given by an Act to the entity for making the decision.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
(3)The tribunal must, by order—
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.
69Effect of orders for administrative review
(1)This section applies if the tribunal makes an order under section 68 (3) in relation to a decision.
(2)The order—
(a)is taken to be the decision of the decision-maker; and
(b)takes effect from the day the tribunal makes the order, unless the tribunal orders otherwise.
It is significant to note for present purposes that sections 19(1) and (4) of the COLA, as they presently stand, relate to the power to refuse a licence application; whereas section 19(6) is only a power to defer making any decision on a licence application pending outstanding disciplinary action against the applicant for the licence or its nominee.
Section 123A of the COLA provides that ‘reviewable decisions’ (that is, decisions reviewable by the Tribunal) are prescribed in the COLA Regulation. Section 123C of the COLA defines the persons who may exercise that right of review.
Schedule 4 of the COLA Regulation provides that a decision to refuse a licence under section 19(1) of the COLA is reviewable by the Tribunal. Schedule 4 does not define a ‘reviewable decision’ to include section 19(4) of the COLA, or a decision under 19(6) to defer making a decision on a licence application.
It may be that the power to refuse a licence under section 19(4) of the COLA is a subset of the more broadly expressed power in section 19(1) and hence, a decision to refuse a licence under section 19(4) would be a ‘reviewable decision’ under section 19(1). The same could not be true of section 19(6) of the COLA.
Assuming a decision under section 19(6) to defer making a decision on a licence application can be properly described as a ‘decision’ for the purposes of section 68 of the ACAT Act, it is still the case that section 68 relies upon the COLA and in particular Schedule 4 of the COLA Regulation, as its source of jurisdiction. Schedule 4 does not confer a right of review on the Tribunal for decisions made under section 19(6) of the COLA.
In the context of the COLA, the Tribunal is not a primary decision maker; rather it reviews a defined range of decisions that have already been the subject of a primary decision. In this sense the Tribunal’s role is akin to that the Commonwealth Administrative Appeals Tribunal as set out in Comcare Australia v Lees (1997) 151 ALR 647. In order to be seized of jurisdiction the Tribunal must have before it for review a decision of the kind set out in Schedule 4 of the COLA Regulation. It may be that once properly seized of jurisdiction in this manner, sections 68 and 69 of the ACAT Act permit the Tribunal to exercise any power that may have been open to the Registrar, including the power under section 19(6) of the COLA to defer making a decision on the licence application. But this is not the same thing as saying that the decision under review is a decision by the Registrar under section 19(6); not the least because the Registrar did not in fact purport to make any such decision, but rather made an affirmative decision to refuse the licence. Even viewed as a source of power (as opposed to jurisdiction), the power in section 19(6) only arises in the Tribunal once the Tribunal is properly seized of jurisdiction in relation to a reviewable decision. Hence the need to identify the relevant reviewable decision.
The decision under review is explicitly a decision to refuse the licence under section 19 of the COLA; implicitly it is a decision relying on section 19(4) of the COLA notwithstanding that the Registrar now disavows any reliance on section 19(4).
The Registrar’s disavowal of reliance on section 19(4) is properly made for two separate reasons:
(a) Section 19(4) did not exist at the time that the licence application was lodged and can therefore have no present application (Esber v Commonwealth [1992] HCA 20)( accrued rights based on the existing law);
(b) Even apart from (a) it is still the case that there were no disciplinary proceedings afoot either at the time of the licence application in April 2013 or at the time the Registrar made the decision of 11 December 2013 (accrued rights based on existing facts).
It seems the Registrar approaches the section 19(6) jurisdictional issue of paragraphs 23 above in the following manner. The decision made under section 19(4) cannot be supported but the Applicant’s appeal against an ultra vires decision does give rise to jurisdiction in the Tribunal. Once seized of that jurisdiction, the Tribunal then has access to the power in section 19(6) which can be exercised on the basis of the facts as they stood at the date of the hearing in the Tribunal. These facts include the later disciplinary proceedings.
The issue for determination
At its broadest, the issue framed by the parties seems to concern the construction of sections 19(1), 19(4) and 19(6) of the COLA. In particular, it concerns whether section 19(6) is to be applied on the facts as they stood at the date of the licence application lodged by the Applicant, or whether the Tribunal may have regard to facts occurring after the date of the application, i.e. whether there is an accrued right based on existing facts as at the date of the licence application.
More specifically, the issue as framed by the parties appears to be whether in applying section 19(6) the Tribunal can and should have regard to the extant disciplinary proceedings against Mr Bulum that were only commenced after the application for a licence was made by the Applicant and after the Registrar’s decision of 11 December 2012.
For reasons alluded to above and discussed below, the Tribunal is of the view that there are other more basic issues that need to be determined, namely: what is the decision that the Tribunal is called upon to review; whether the Registrar’s decision to refuse the licence is ultra vires; and whether section 19(6) of the COLA can be a source of any jurisdiction or power in the Tribunal in the present case.
The Respondent’s Submissions
In this case the parties adopted the unusual practice that the Respondent filed his Submissions first.
The Respondent conceded that section 19(4) of the COLA has no application in the present case and submitted that the Tribunal should defer any decision on the licence to the Applicant under the power provided in sections 19(6), seemingly by the logic described at paragraph 27 above.
The Respondent submitted that the Tribunal was entitled to have regard to the history of events occurring after the licence application of April 2013 in the exercise of its discretion under section 19(6) of the COLA. These facts included the outstanding disciplinary proceedings against Mr Bulum and the possibility that if the Applicant is granted a licence then Mr Bulum may transfer the business of B & T to the Applicant and wind up B & T. The winding up of B & T would result in the frustration of the outstanding rectification issues and disciplinary action against B & T.
The Respondent denied that the Applicant had the benefit of any form of accrued right based on the existing facts as they stood in April 2013.
The Applicant’s Submissions
The Applicant submitted that section 19 demonstrated a right to a licence subject to satisfaction of prerequisites in the COLA. Section 19(1) provided that the Registrar ‘must’ grant the licence; and can only refuse the licence if there is a relevant statutory ground for the refusal at the date of the licence application, which did not exist in the present case.
The Applicant submitted that the power to refuse a licence under sections 19(1) or 19(4), or to defer a decision on the licence under 19(6), was a temporally conditioned power: that is, it is a decision made on the facts as they stood at the date of the licence application (an accrued right based on the existing facts). Insofar as there were no disciplinary proceedings afoot at the date that the licence application was lodged (or at the date of the Registrar’s decision), there was no basis under either section 19(1) or section 19(4) to refuse the grant of the licence and no basis for deferring a decision on the licence under section 19(6).
The Applicant took issue with the evidence of Mr Green for the Respondent to the effect that the rectification work at Empire Apartments has not been completed and contends that this dispute is not a relevant consideration for the purposes of either section 19(4) or 19(6).
The Applicant did not specifically advert to issue of the non-existence of section 19(4) at the date of the licence application.
Respondent’s Submissions in Reply
The Respondent submitted that the word ‘must’ in section 19(1) of the COLA imported nothing other than an imperative that a decision must be made on an application; that is, only that it eventually be made. It did not carry any implication for when that decision must be made or upon what basis it was made.
The Respondent relied heavily upon Shi v Migration Agents Registration Agency [2008] HCA 31 for the proposition that the Tribunal may have regard to all the facts that existed to the date of the Tribunal’s hearing, and that no part of section 19 is a temporally conditioned provision.
Matter raised by the Tribunal:
At the hearing, the Tribunal raised with the parties for their consideration the principles of statutory interpretation that provide for a minimalist construction of provisions that intrude into existing common law rights or private statutory rights (R&R Fazzolari P/L v Parramatta City Council (2009) 237 CLR 603 at [619-20]; Commonwealth v Progress Advertising and Press Agency Co P/L (1910) 10 CLR 45; Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410; Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24). The Tribunal notes that a similar issue was raised in the context of the COLA in Ruchschloss v Simmons and Middlemiss (No2) [2013] ACTSC 133.
Specifically, it was put to the parties that the right to participate in trade and commerce in a chosen trade/profession is a right that existed at common law prior to the COLA. The COLA has abrogated the common law right and then imposed a licensing regime to regulate the trade. The legislative policy underpinning statutes of a regulatory kind such as the COLA require a construction that is sufficient to achieve its legislative policy but that intrudes to the least extent into these existing rights. This approach to the construction should apply to the COLA as whole and therefore should apply equally to provisions that deal with the granting of the licence and to those that refuse licences.
It would be fair to say that neither party was excited by the Tribunal’s contribution and they both declined the opportunity to make submissions on the point.
Consideration of the issues
Notwithstanding the position of the parties on the issue, the Tribunal chooses to commence its consideration of the issues from the higher level of abstraction and work down to the more specific issues of construction that arisen in this case.
In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56, French CJ and Hayne J (with Kiefel agreeing) reviewed some of the basic principles of statutory interpretation. In particular the Court noted the importance of the legislative ‘context’ being determined from the text and scope of legislation as a whole when determining the construction of a particular provision in the legislation:
24. The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”. That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. [footnotes omitted]
24. Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative ‘intention’ is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have”. And as the plurality went on to say in Project Blue Sky: [footnotes omitted]
“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” [footnote omitted]
To similar effect, the majority in Lacey v Attorney-General (Qld) said: [footnote omitted]
“Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.” [footnote omitted]
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
26. A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said: [footnotes omitted]
“Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.”
And as the plurality said in Australian Education Union v Department of Education and Children’s Services: [footnote omitted]
“In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.”
Context
27. Because ‘context’ loomed large in argument in this Court, particularly in the submissions of the respondents in these appeals, it is necessary to say something more about the use of ‘context’ in statutory interpretation.28. It is not to be doubted that the relevant provisions must be construed in context, and the contrary was not suggested in argument. But there was some debate about what use could be made of provisions of the Liability Act in construing the definition of ‘personal injury damages’ in the 1987 Legal Profession Act. [footnote omitted]
29. In construing the definition of ‘personal injury damages’ contained in the Liability Act (“damages that relate to the death of or injury to a person caused by the fault of another person”) it is no doubt necessary to have regard not only to the words of the definition but also to the context in which the definition was set. So much follows from what has been said about statutory construction in the cases to which reference has been made. [footnote omitted]
30. Nothing said in The Producers' Co-operative Distributing Society Ltd v Commissioner of Taxation (NSW) in this Court or on appeal to the Privy Council denies the general proposition that regard must be had to context or requires that a definition which is picked up from one statute (the source Act) and applied in another be construed by reference only to its words without regard to the context provided by the source Act. Indeed, in the Producers' Co-operative Case, Dixon J expressly acknowledged the need to consider the context provided by the other provisions of the source Act when considering a definition provided for in that Act and picked up and applied by another. [footnotes omitted]
31. It may be accepted that there are some limitations to the use that can properly be made of other provisions of the source Act when construing a definition in the source Act that is picked up and applied by another Act. As both Latham CJ and the Privy Council pointed out in the Producers' Co-operative Case, if the definition that is picked up is to be applied in the source Act only “unless the context or subject-matter otherwise indicates or requires”, the particular meaning that the term in question may have in any particular provision of the source Act will not elucidate the meaning of the general definition of the term. But it by no means follows from this observation that a definition should be construed without regard to its context. That is why the Privy Council in the Producers' Co-operative Case treated the activities which the source Act in question permitted as explaining “the general meaning and application of the definition” in question. [footnotes omitted]
In the present instance the legislative context and intention is to provide a measure of protection for consumers of services provided by builders. The intent of the COLA is essentially one of balancing the protection of the consumer against the right of builders to engage in their chosen trade.
The legislative scheme purports to achieve this purpose, inter alia, by imposing restrictions or limitations on the prior rights of builders to engage in their trade; compulsory duties of rectification on builders for defective work; and disciplinary sanction for non-compliance with the regulatory framework.
In R & R Fazzolari P/L v Parramatta City Council (2009) 237 CLR 603 at 619-620, French CJ addresses the common law presumption that statutes are presumed not to interfere with vested proprietary rights, at least to an extent that is not necessary to achieve the purpose of the statute:
40. Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of interpretive approaches where statutes are said to affect such rights.
41. Blackstone said that the common law would not authorise the “least violation” of private property notwithstanding the public benefit that might follow. He accepted however that the legislature could compel acquisition and in so doing wrote: [footnotes omitted]
“All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.”
It was and has remained the case in England and Australia that compulsory acquisition and compensation for such acquisition is entirely the creation of statute. [footnote omitted]
42. The attribution by Blackstone, of caution to the legislature in exercising its power over private property, is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights. It was expressed by Griffith CJ in Clissold v Perry, a land resumption case, thus: [footnotes omitted]
“In considering this matter it is necessary to bear in mind that it is a general rule to be followed in the construction of Statutes such as that with which we are now dealing, that they are not to be construed as interfering with vested interests unless that intention is manifest.”
The presumption has been restated on more than one occasion in this Court. That does not, of course, authorise the court to put to one side “the unambiguous effect of the words which the Parliament has seen fit to use”. [footnotes omitted]
43. The terminology of “presumption” is linked to that of “legislative intention”. As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights. That approach resembles and may even be seen as an aspect of the general principle that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. It operates in the United Kingdom as a manifestation of a “principle of legality” and has been described in Australia as an aspect of the rule of law. [emphasis added]
The above principle has been applied in the context of legislation that purports to restrict a person’s rights to work in a chosen trade. In Commonwealth v Progress Advertising and Press Agency Co P/L (1910) 10 CLR 457, the Commonwealth sought to rely upon a regulation making power to prohibit the private publication of a telephone directory. The High Court unanimously held the Commonwealth had no such power. The thrust of all judgements is consistent with that of O’Connor J (at 464):
In ascertaining what was the real intention of the legislature two well known principles of interpretation must be applied. The first is that, as every citizen is at liberty prima facie to carry on his business in his own way within the law, it will not be held that the legislature has intended by any Statute to impair that liberty unless it has expressed that intention by plain words or by necessary implication from the language it has used. The second rule is that general words in a Statute will ordinarily be construed with no wider meaning than is necessary to carry into effect its object and purpose…
In Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410, the majority of the High Court held that a statutory provision authorizing the Committee to regulate fruit marketing did not extend to the Committee prohibiting the growing and geographical distribution of fruit by existing growers. The majority view is consistent with that of Starke J:
It is a sound rule of construction that the rights of citizens are not to be destroyed or taken away “unless you have plain words which indicate that such was the intention of the Legislature” (cf. In re Cuno; Mansfield v. Mansfield; London and North-Western Railway Co. v. Evans). “Prima facie a trader in a free country in all matters ‘not contrary to law may regulate his own mode of carrying on his trade according to his own discretion and choice’” (Mogul Steamship Co. v. McGregor, Gow & Co.). Clearly, the statute has interfered with this right to some extent, and the question is—to what extent? [footnotes omitted]
In Springhall v Kirner [1988] VR 159, Crockett J held that a conservation statute did not extend to permitting the withdrawal of existing fishing rights and said:
Finally the construction for which the Plaintiff contends gains cogent support from the principle of statutory construction that, unless it is unavoidable, an enactment should not be construed in a manner that would lead to the loss of a person’s valuable right without payment of compensation….
Any construction of the legislation that would have the effect of diminishing the value of the Plaintiff’s licence by placing limitations on the area of its availability without the payment of compensation is to be avoided. Unless it very clearly appears to the contrary, it must be assumed that Parliament did not intend the legislation to have such a meaning. [footnote omitted]
Section 19(1) of the COLA provides that the Registrar ‘must’ issue or refuse to issue a licence once the application is lodged. The Applicant contends that the word ‘must’ carries a connotation of temporal imperative: that is, that the Registrar is required to make a decision and to make it promptly or at least within a reasonable time. The Applicant’s contention is consistent with the idea that delay, or at least an unreasonable delay by the Registrar in making a decision, will unfairly impact on the Applicant’s capacity to engage in its trade. Even a prompt refusal by the Registrar will at least allow the earlier activation of appeal processes by the Applicant.
The Respondent contends that the word ‘must’ connotes no more than the requirement that the Registrar make a decision at some point in time: that is, that eventually a decision is made, without any connotation of promptness on the Registrar’s part. This submission was made with full cognizance of section 146(2) of the Legislation Act 2001, which provides:
In an Act or statutory instrument, the word must, or a similar term, used in relation to a function indicates that the function is required to be exercised.
The adoption of the Respondent’s construction would potentially lead to the conclusion that the determination of an application, and any potential appeal from an eventual refusal, may be held up indefinitely with the consequent effect that the Applicant may be precluded from its trade indefinitely. It is not easy to see how a potentially indefinite delay of this kind is consistent with section 146(2) above or the common law principles in Fazzolari.
Where a statute provides for the doing of some act but does not fix a specific time for its doing, the common law usually implies a reasonable time limit for the action.[1] The Interpretation Act of some states of Australia now provided that the inferred time limit is ‘with all convenient speed’[2].
[1] Pearce D.C. and Geddes R.S, Statutory Interpretation in Australia, 7th Edition, at [6.52]
[2] ibid
Section 151B of the Legislation Act 2001 deals with the issue as follows:
151BDoing things for which no time is fixed
(1)This section applies if—
(a)under an Act or statutory instrument, something must or may be done; but
(b)no time is provided for doing the thing.
(2) The thing must or may be done as soon as possible and as often as needed. [emphasis added]
The Tribunal notes that section 151B applies to legislative provisions that are framed in both ‘may’ and ‘must’ terms and therefore applies to section 19(1), 19(4) and 19(6) of the COLA. The effect is that the Registrar is required to determine the application, whether under s19(1), 19(4) or s19(6), as soon as possible after the application is lodged.
In Georgalis v ACT Planning and Land Authority [2012] ACAT 1, President Spender had the following to say about the term ‘as soon as possible’ in section 151B(2) of the Legislation Act 2001:
56. Pearce and Geddes have stated that the expression “as soon as possible” does not require that whatever it is that has to be done must be carried out as soon as anyone could possibly do it. Citing Amann Aviation Pty Ltd v Commonwealth, the authors contend that the expression means “as soon as possible in the circumstances which prevail and apply to the party concerned”. Although some cases have referred to the expression as meaning “within a reasonable time”, particularly Starke J in Bowes v Chaleyer, Pearce and Geddes considered that this interpretation seems too generous to the person obliged to carry out the activity. [footnotes omitted]
57. In Bowes v Chaleyer the High Court had before it a contract for the sale and shipment of goods, “Half as soon as possible. Half in six months.” Isaacs and Rich JJ regarded “as soon as possible” as “somewhat more stringent than ‘a reasonable time’”. [footnote omitted]
58. In Swv Pty Ltd v Spiroc Pty Ltd Barrett J in the New South Wales Supreme Court considered Bowes v Chaleyer and Vines v Djordjevitch and concluded as follows: [footnote omitted]
…But the passages I have quoted are sufficient to illustrate four basic propositions: first, the words “as soon as possible” take their meaning from the context in which they are used; second, they do not indicate the greatest degree of speed humanly achievable; third, they import a requirement of reasonable expedition or such despatch as is reasonably practicable; and, fourth, a “reasonable time” marks the very outer limit of “as soon as possible”. [footnote omitted]
In the present case the application was lodged on 10 April 2013 but was not determined by way of refusal until 11 December 2013. Between these dates section 19(4) was inserted into COLA and the Supreme Court delivered its judgment in relation to the appeal by B & T. Only after this date did the Registrar commenced the disciplinary proceedings against Mr Bulum and B & T.
The above sequence of events creates the appearance that the Registrar did not attempt to determine the application ‘as soon as possible’ after it was lodged on 10 April 2013. Although there is no express evidence on this point, there is also no express evidence from the Registrar that efforts were made to decide the application ‘as soon as possible’. The Tribunal must draw such inferences as seem probable on the evidence before it, and the conclusion is that the Registrar did delay in making a decision on the licence application and therefore did not make the decision on the application ‘as soon as possible’.
If it were the case, as appears to the Tribunal, that the Registrar’s decision of 11 December 2013 was taken outside the time frame permitted by section 151B, then it may be that the decision is ultra vires for that reason. It would also be ultra vires by reason of having taken into account considerations that occurred outside the permitted statutory time frame.
The Registrar’s decision of 11 December 2013 would further be ultra vires by reason of its purported reliance on section 19(4) which did not exist at the date of the licence application (accrued rights based on the existing law).
The Tribunal has the power to determine the lawful validity of any decision of the Registrar in so far as the lawfulness of the decision forms a part of the de novo review process by the Tribunal (Sunol v Collier [2012] NSWCA 14; Re Sarina and Secretary To the Department of Social Security [1988] 14 ALD 437).
If the conclusions at paragraphs 62-63 above were adopted then a kind of statutory hiatus would ensure. The decision made on 11 December 2013 would be void but the time for the Registrar to make another decision on the licence application of April 2013 has also expired. The application would be caught in limbo. This would not be a practical outcome to the matter.
The Tribunal’s powers of review extend to the review of a purported decision that may in fact be ultra vires (Collector of Customs (NSW) v Brian Lawlor Automotive P/L (1979) 41 FLR 338). On this basis, the Tribunal is empowered to finalise the present review application and in this manner avoid a potential legislative hiatus.
In the process of completing the review of the Registrar’s actual decision under section 19(1) or 19(4) of the COLA to refuse the licence, the Tribunal must still resolve the issue of statutory construction between the parties, namely: whether the licence application is to be determined on the basis of the facts and law as they stood at the date of the licence application; or whether the subsequent intervening events and change in the law are also relevant considerations. If the Tribunal stands in the shoes of the Registrar for the purposes of section 19(4) and is able to have regard to the facts to the date of the hearing, then subject to the caveat below, it is plain that the Tribunal would have the power to make the order sought by the Respondent under section 19(6). Conversely, if the Tribunal must determine the section 19(4) issue on the facts as they stood at the date of the licence application then there would be no basis for confirming the Registrar’s decision and it would be set aside. There would be no power to make any order under section 19(6).
The caveat referred to above concerns the accrued right of the Applicant to have its licence application determined on the law as it stood on 10 April 2013, which did not include the existence of any form of section 19(4) which is a sufficient basis in its own right to void the Registrar’s decision.
Even if the role of section 19(4) in the Registrar’s decision is ignored, the issue of the accrued rights based on existing facts still arises in relation to section 19(6).
Section 151B of the Legislation Act 2001 and the common law principles set out above remain relevant to the outstanding issue of statutory construction for two reasons. First, if the Registrar is required to make a decision under section 19(1) (or 19(4)) ‘as soon as possible’ after the application is lodged, then this would point to a construction that the Registrar was intended to make the decision on the basis of the facts as they stood at that time and not the facts as they might stand after an indefinite period into the future.
Secondly, the use of the term ‘must’ (and ‘may’) and its connotation of ‘as soon as possible’ that arises from s151B of the Legislation Act 2001 is consistent with the common law principles discussed above, in that it points to the intention that a decision be made in a manner that least impinges upon the Applicant’s capacity to carry out its trade. A decision that can be deferred indefinitely is likely to have the converse effect on the Applicant’s capacity to trade.
These considerations alone point to a construction of section 19(1) (or 19(4)) that is time limited and that requires the decision to be made as soon as possible on the facts as they exist at the date of the licence application. It is a form of accrued rights based on existing facts, namely the right to have the application assessed according to the facts as they stood at the date of the application.
If the Tribunal is wrong to construe ‘as soon as possible’ as requiring a focus on the facts as they stood at the date of the licence application, it is still not the case that ‘as soon as possible’ admits an indefinite delay or a delay of some 6 months to permit intervening events to transpire.
The same considerations point to a similar construction of section 19(6) of the COLA, namely that the Registrar is required to make a decision to defer consideration of the licence application on the facts as they stood at the date of the licence application. In the present case, at the date of the licence application there were no disciplinary proceedings afoot in the Tribunal against Mr Bulum or any other relevant person. Therefore, the statutory prerequisite contained in section 19(6) for its application did not exist at the date of lodgement of the licence application and hence no lawful application of section 19(6) could arise for the Tribunal.
A conclusion that the Tribunal is confined to a consideration of the facts that existed at the date of licence application (or soon thereafter) does not mean that the Tribunal is limited to the evidence as it stood at the date of the licence application. The Tribunal can have regard to evidence arising to the date of the hearing, but only insofar as it sheds light on the relevant eligibility criteria (facts) as they stood at the date of the licence application.
Both parties have addressed the Tribunal on the limited issues of the accrued rights based on existing facts. The Applicant’s submissions are generally consistent with the approach of the Tribunal set out above. The Respondent’s submissions urge that the Tribunal is entitled to have regard to the evidence and the facts that arise after the licence application and can exercise the power in sections 19(1) and 19(6) of the COLA in the light of these subsequently occurring facts.
The parties have referred the Tribunal to a raft of cases said to bear on the issue of whether the Tribunal must determine the application by reference to the facts as they existed at the date of the licence application or at the date of the hearing. Most of these turn on a prior issue of construction concerning whether the provisions in question are temporally conditioned or not.
The relevance of Shi v Migration Agents Registration Authority [2008] HCA 31
The Registrar primarily relied upon the High Court decision in Shi v Migration Agents Registration Authority [2008] HCA 31 and encouraged a close reading of this decision by the Tribunal. The Applicant also relied upon this same decision. The Tribunal proposes to take up the invitation to engage in a close reading of this case.
The decision concerning an appeal from the Administrative Appeals Tribunal to cancel a migration agent’s licence under section 303(1) of the Migration Act 1958 (Cth). Section 303(1) read:
303(1) The Migration Agents Registration Authority may:
(a)cancel the registration of a registered migration agent by removing his or her name from the register; or
(b)suspend his or her registration; or
(c) caution him or her;
if it becomes satisfied that:
…
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
…
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
The Authority cancelled the appellant's registration as an agent on 14 July 2003. The reasons for the cancellation were described by Kirby J as follows[3]:
...The Authority’s decision set out its factual findings and the evidence on which such findings were based, as well as its reasons for taking the course that it did. The Authority found several defects affecting the appellant’s dealings with clients; his knowledge of the Migration Act and relevant Regulations; his control of his office, financial and other records; and his supervision of his staff. Many of the breaches of the Code of Conduct found by the Authority related to cases in which the appellant had provided assistance to non-citizens applying for protection visas, sought on the basis of claims to refugee status. Having regard to these breaches, the Authority recorded that it was satisfied that the appellant was not a person of integrity or a fit and proper person to give immigration assistance.
[3] Shi v Migration Agents Registration Authority [2008] HCA 31 at [12]
The bases for the Authority’s decision to cancel the licence can be divided into two alternative categories:
(a)a range of historical facts that constituted breaches of the Code of Conduct by Mr Shi per section 303(1)(h)) of the Migration Act (the historical issue); or
(b)a range of historical facts concerning his dealings with clients that reflected adversely on Mr Shi fitness to hold a licence per section 303(1)(f) of the Migration Act (the fitness issue).
The Administrative Appeals Tribunal initially reviewed the findings concerning the historical breaches of the Code and found that 51 of the alleged breaches were substantiated.[4] The Tribunal did not affirm the cancellation of the licence based on the substantiated breaches of the Code of Conduct. The Tribunal then considered whether the substantiated historical breaches led to the conclusion that Mr Shi was not a fit and proper purpose to hold a licence. The Tribunal determined that notwithstanding the breaches, it was not satisfied that Mr Shi was not a fit and proper person to hold a licence.
[4] Shi and Migration Agents Registration Authority [2005] AATA 851 at [10]; Migration Agents Registration Authority v Shi [2006] FCA 1236 at [4]; Shi v Migration Agents Registration Authority [2008] HCA 31 at [51] and [127]
For the purpose of determining the truth of the alleged historical breaches the Tribunal had regard to all the evidence available to the date of the hearing (the historical issue). [5]
[5] Shi v Migration Agents Registration Authority [2008] HCA 31 at [16][17][39][45] and [51]
For the purpose of determining whether the substantiated historical breaches made Mr Shi unfit to hold an agents licence, the Tribunal had regard to the all the evidence to the date of the hearing as well as to events or facts that had occurred to the date of the hearing (the fitness issue).[6]
[6] Shi v Migration Agents Registration Authority [2008] HCA 31 at [16]and [17]
The Authority appealed to the Federal Court concerning the manner in which the Tribunal dealt with the fitness issue. In particular, the Authority argued that the Tribunal should have confined itself to the facts and evidence as they stood at the date of the Authority’s decision and should not have had regard to after occurring facts or evidence.
It is not clear from the High Court’s decision whether the Authority also appealed to the Federal Court concerning the manner in which the Tribunal determined the historical issue.[7] Whatever the truth may be, the historical issue received only a small amount of attention by the judges in the High Court. This is probably because the Authority did not seek to disturb the Tribunal’s finding of the breaches of the Code, which were findings of fact and thus non-appellable before the Federal Court. At most, the Authority would have been concerned that the Tribunal did not take the view that those established breaches of the Code were alone sufficient to cancel the licence without the need to consider the fit and proper person test.
[7] The passage of Hayne and Heydon JJ in Shi v Migration Agents Registration Authority [2008] HCA 31 at [95] suggest that this was the case but other passages from Kirby J and Kiefel J suggest otherwise, see [128]
On review in the Federal Court, the primary judge held that the Tribunal should have limited itself to the evidence and facts as they stood at the date of the Authority’s decision in relation to the fitness issue.[8] On appeal the Full Court affirmed the decision of the primary judge.[9]
[8] Shi v Migration Agents Registration Authority [2008] HCA 31 at [20] and [128]
[9] Shi v Migration Agents Registration Authority [2008] HCA 31 at [21]
Mr Shi appealed to the High Court. Before the High Court, the submissions did address both the historical issue and the fitness issue. In relation to the historical issue Kiefel J (with whom Crennan J concurred) noted that Mr Shi conceded the temporal element involved in the historical issue but argued that such was not case with the fitness issue:
131. The appellant acknowledged a temporal element to be present with respect to the conduct constituting breaches of the Code of Conduct. He denied that considerations as to his integrity and fitness to provide immigration assistance could be limited in point of time.
Kirby J reviewed the ambit of the Tribunal’s powers on review. He noted that that there was no general presumption concerning whether the Tribunal could have regard to the evidence and facts arising after the decision under review:
27. In this Court, the Authority propounded a general presumption which, it said, applied in respect of administrative appeals to bodies such as the Tribunal. It argued that there was a presumption of law that the rights of parties to an appeal under an Act are to be determined on the basis of the materials that existed at the time of the decision subject to appeal, absent some explicit indication to the contrary. To support this suggested presumption, the Authority relied on a dictum of McHugh JA in Strange-Muir v Corrective Services Commission of New South Wales. [footnote omitted]
28. The status of the Authority's suggested presumption is not certain. In Strange-Muir, the Court of Appeal of New South Wales was divided and Priestley JA, who favoured the orders made by McHugh JA, expressly limited his concurrence to his construction of the particular legislation at issue. He did not appear to embrace the propounded presumption. There are dangers for legal reasoning in the over-ready resort to presumptions. However, it is unnecessary to resolve whether such a general presumption exists in this case. It is preferable to decide the issue by reference to the language of the interlocking legislation. [footnotes omitted]
Kirby J noted that whether the Tribunal could have regard to events that occurred after the Tribunal’s reviewable decision depended on the construction of the enabling Act. Where the decision under review was one relating to an identified past event then the power of review would not permit regard to events that occurred after that past identified event, although this would not prevent recourse to after acquired evidence concerning the past identified event:
43. Nature of the decision under review: Fourthly, although the foregoing considerations lead to a conclusion that the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision, the fact that the review contemplated by s 43 of the AAT Act is one addressed to a "decision", inferentially arising under a different federal enactment, makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review. [footnote omitted]
44. Sometimes, it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events. If, for example, under federal legislation, a pension is payable at fortnightly rests, by reference to particular qualifications that may themselves alter over time, a "review" of an administrative "decision" to grant or refuse such a pension, by reference to statutory qualifications, may necessarily be limited to the facts at the particular time of the decision. [emphasis added]
It is important to note from the above and in what followings from the Court that the use of the term evidence per se is not a reference to either an historical fact or a state of being (fitness to hold a licence). It is a reference to the logical probity material that may, or may not, point to the existence of the historical fact or state of being. To have regard to the evidence that exists at the date of the hearing, of itself says nothing about the date at which the fact in question must be established. The evidence to the date of the hearing may be later acquired evidence concerning the prior historical fact.
When addressing the fitness issue Hayne and Heydon JJ held that the Tribunal should have regard to all the evidence and facts as they stood at the date of the hearing[10] and concluded[11]:
Nothing in the provisions of the Migration Act fixed a particular time as the point at which a migration agent's fitness to provide immigration assistance was to be assessed. Unlike some legislation providing for pension entitlements, in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements, the provisions of s 303 of the Migration Act contained no temporal element. It follows that when the Tribunal reviews a decision made under s 303, the question which the Tribunal must consider (is the Tribunal satisfied that the person concerned is not a fit and proper person to give immigration assistance?) is a question which invites attention to the state of affairs as they exist at the time the Tribunal makes its decision. MARA's argument to the contrary should have been rejected in the courts below. [footnote omitted]
[10] Shi v Migration Agents Registration Authority [2008] HCA 31 at [97-99]
[11] Shi v Migration Agents Registration Authority [2008] HCA 31 at [101]
It is important to note that these comments pertain only to the fitness issue and that their Honours came to this conclusion because there was nothing in the fitness issue part of section 303 that limited its consideration to a particular point in time. Their Honours did not address whether facts occurring after the Authority’s decision could be taken into account concerning the historical Code breaches.
Crennan J agreed with Kiefel J on the issue of the Tribunal’s power to have regard to facts and evidence occurring after the decision under review.[12]
[12] Shi v Migration Agents Registration Authority [2008] HCA 31 at [117]
Kiefel J distinguished the historical issue of the Code breaches from the fitness issue. Her Honour noted that the historical issue was one to be considered on the facts that existed at the time of the alleged breaches of the Code. Events occurring after the date of the alleged Code breaches could only be relevant insofar as they shed light on the alleged historical breaches themselves:
The question which here arose for the Authority under s 303(1), which it answered, was whether it should exercise its powers, under pars (a) to (c) of the sub-section, because the grounds in pars (h) and (f) were established, in particular because the appellant had breached the Code of Conduct. That part of the decision which comprises the finding, that the ground in par (h) had been made out, was referable to conduct which had occurred to a point in time. That is the nature of the finding required by the provision. It follows that the Tribunal was restricted to a consideration of events to that point and not those occurring later, in determining for itself whether there had been non-compliance with the Code. The appellant accepted as much in his submissions.[13]
[13] Shi v Migration Agents Registration Authority [2008] HCA 31 at [146]
The fitness issue was said to raise a different kind of issue that was not temporally conditioned in the sense of being an historical fact and thus the Tribunal could have regard to all facts and evidence at the date of the hearing in determining this issue:
148. The ground in s 303(1)(f) involves the Tribunal in considerations of a different kind. The ordinary meaning of a person's “integrity” is plain enough. The expression “fit and proper” is one traditionally used with reference to an office or vocation, “fit” being referable to a person's honesty, knowledge and ability. A person's knowledge of migration procedure is one of the matters listed in s 290(2) of the Migration Act, as necessary to be taken into account by the Authority in determining whether a person is not fit and proper or not a person of integrity. That section provides that a person must not be registered as a migration agent if the Authority is not satisfied that they have those characteristics. [footnote omitted]
149. Section 303(1)(f) provides that the Authority may take disciplinary action if it “becomes satisfied” that a registered migration agent is not a person of integrity or otherwise not a fit and proper person to give immigration assistance. The Migration Act provides the Authority with an ongoing role, to monitor the conduct of agents and to take disciplinary action where necessary. The reference to the Authority becoming satisfied was considered by Tracey J to identify a point in time, one at which the Authority was no longer satisfied about the agent. The topic with which s 303(1)(f) is concerned is not, however, one which identifies particular conduct, as is the case with respect to breaches of the Code of Conduct. The enquiry posed by the paragraph is a general one, and it may be considered by the Tribunal in that way. It does not limit an assessment of an agent's integrity and fitness to what has been conveyed by any breaches. There is no reason why the Tribunal’s review should not extend to any information which sheds light upon the presence or absence of the necessary characteristics in the migration agent. The list in s 290(2) is not exhaustive. There is good reason why the Tribunal should be in a position to consider the most recent material bearing upon the question of an agent’s integrity and their fitness to continue to provide immigration assistance. By this means facts such as an agent's subsequent conviction for a serious offence could be taken into account. The relevance of such a factor, to the question of an agent's integrity and fitness, is confirmed by its specification in s 290(2), as a matter which must be taken into account by the Authority in connection with their registration. [footnote omitted]
The legislation in Shi contained two issues, the historical issue and the fitness issue. These two issue were in the alternative and not conjunctive. It is sufficiently clear to the present Tribunal that the High Court took the position that the determination of the historical issue was limited to the facts that existed when the breaches of the Code were alleged to have been committed, albeit later evidence may be admitted concerning the historical facts. With no disrespect intended, as a matter of logic no other conclusion could possibly be open in relation to the historical issue. Later facts were only admitted in relation to the issue of the continuing character fitness of Mr Shi.
Returning to the construction of section 19 COLA:
When read in the light of sections 146(2) and 151B of the Legislation Act 2001 and common law principles of statutory construction referred to above, section 19(1) of the COLA is plainly a temporally conditioned provision to be applied ‘as soon as possible’ after the licence application was lodged.
Section 19(4) of the COLA is also a temporally condition provision. More to the point it has specific statutory prerequisites that are themselves discrete historical facts, being those set out in sections 19(4)(a)(i), (ii) and (iii). The public test in s19(4)(b) is not a separate test to that in section 19(4)(a); paragraphs 19(4)(a) and (b) are conjunctive. Unless section 19(4)(a) is satisfied, no issue arises under section 19(4)(b).
Applying the ratio in Shi leads to the inescapable conclusion that only the facts that existed at the time of the licence application by the Applicant can be relevant in determining whether the historical facts set out in s19(4)(a) existed at the time. The Registrar concedes that these facts did not exist and that section 19(4) has no application. This concession is consistent with the evidence.
Section 19(6) COLA applies if two historical facts are both found to exist, namely:
(a)a licence application has been made by an applicant; and
(b)occupational disciplinary proceedings are afoot at the time the licence application was made.
Both these requirements focus on a specific point in time. Section 19(6) is thus concerned with existing historical facts and is not of the kind of continuing fitness issue considered in Shi. Applying Shi, the relevant issue for the Tribunal under section 19(6) is whether these two historical facts ever existed. The Registrar conceded that they did not and that concession is consistent with the evidence. Thus section 19(6) also has no application in the present matter.
Other submissions:
In the light of the findings at paragraphs 100 and 101 above, it is not strictly necessary to consider the other cases to which the parties referred the Tribunal.
Some cases follow the line of authority starting with Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 and note the Tribunal’s general duty to arrive at the correct or preferable decision on the material (facts and evidence) before the Tribunal. These cases concerned public interest and character tests and are of the same kind as the fitness issue in Shi. This line of authorities does not address the Tribunal’s role in the context of a decision that turns on the existence of discrete historical facts.
Other of the cases concern the grant of pension and like rights, based on the existence of qualifying eligibility at a particular point in time (Secretary, Department of Family & Community Services v Holmes [2000] FCA 513; Re Reilly and Secretary, Department of Social Security (1987) ALD 407). In these cases, the issue for the Tribunal was whether the qualifying historical facts existed at the time of the application made to the Secretary. The Tribunal could have regard to later evidence but only insofar as it shed light on the relevant historical facts. The Tribunals were found to be in error in treating the right to a pension as being a continuing right that could be reviewed on the facts as the stood as the date of the Tribunal’s hearing. These cases are consistent with the findings in Shi on the historical issue and are apposite to section 19 of the COLA which is of a similar temporally conditioned nature.
Some of the cases are of the nature of Esber v Commonwealth [1992] HCA 20, which is authority for the principle of an accrued rights based on the existing laws at the time an application is made. This issue has present relevance and has been addressed above.
Disposition of this application:
It was the parties’ joint position that the Tribunal deal with the statutory construction issue addressed above but go no further in the disposition of the substantive application. Accordingly the matter is now to be listed for directions.
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Mr A. Anforth – Senior Member
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