Minotaur Constructions (ACT) Pty Ltd v Construction Occupations Registrar (Occupational Discipline)

Minotaur Constructions (ACT) Pty Ltd sought to challenge a decision by the Construction Occupations Registrar to refuse the grant of a licence. The dispute centred on the interpretation of sections 19(1), 19(4) and 19(6) of the Construction Occupations (Licensing) Act 2004 (ACT) (the COLA) which deal with the power to refuse or defer a decision on a licence application. The Applicant argued 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). The Applicant contended that there was no basis to refuse the grant of the licence or to defer a decision on the licence under sections 19(1) or 19(4) as there were no disciplinary proceedings afoot at the date that the licence application was lodged. The Applicant also 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 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. The Court considered the principles of statutory interpretation that provide for a minimalist construction of provisions that intrude into existing common law rights or private statutory rights and found 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). The Court found that the same could not be true of section 19(6) of the COLA. The Court held that the power under section 19(6) of the COLA to defer making a decision on the licence application only arises in the Tribunal once the Tribunal is properly seized of jurisdiction in relation to a reviewable decision. Accordingly, the application for review of the Registrar’s decision was dismissed.