Owens v The Builders' Registration Board of Western Australia
[2006] WASC 272
OWENS -v- THE BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2006] WASC 272
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 272 | |
| Case No: | CIV:2476/2005 | 11 AUGUST 2006 | |
| Coram: | BLAXELL J | 6/12/06 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Question of construction determined Declaration that plaintiff has a legal right not to be compelled to attend before the Board or to answer questions on oath | ||
| B | |||
| PDF Version |
| Parties: | WAYNE GREGORY OWENS THE BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA |
Catchwords: | Statutory interpretation Claim for declaration as to legal right dependent upon question of construction Residual powers of Builders' Registration Board following transfer of functions to State Administrative Tribunal Investigation by Board into alleged misconduct by plaintiff builder Coercive powers under s 17 of Builders' Registration Act 1939 Whether Board can require plaintiff to answer questions on oath Privilege against self-incrimination |
Legislation: | Builders' Registration Act 1939 (WA), s 8, s 12D, s 13, s 13A, s 17 State Administrative Tribunal Act 2004(WA), s 66, s 67, s 68 |
Case References: | Coco v The Queen (1994) 179 CLR 427 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 Johns v Connor (1992) 35 FCR 1 Mortimer v Brown (1970) 122 CLR 493 Palfrey v MacPhail & Anor [2004] WASCA 257 Project Blue Sky v Australian Broadcasting Authority (1998) 14 CLR 355 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 Saraswati v The Queen (1991) 172 CLR 1 Sorby v The Commonwealth (1983) 152 CLR 281 Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473 Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 Connell v Reynolds SM (1993) 9 WAR 27 George v Rockett (1990) 170 CLR 104 Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384 Health Insurance Commission v Freeman (1998) 88 FCR 544 JMA Accounting Pty Ltd v Commissioner of Taxation (2004) 139 FCR 537 Johns v Australian Securities Commission (1993) 178 CLR 408 Mansfield v Director of Public Prosecutions for Western Australia [2005] WASCA 79; (2005) 31 WAR 97 Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38 Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 Nguyen v Minister for Health & Ageing [2002] FCA 1241 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Re Bolton; Ex parte Beane (1987) 162 CLR 514 Re Malley SM; Ex parte Gardner [2001] WASCA 29 Thompson v Goold & Co [1910] AC 409 Workers Rehabilitation & Compensation Corp v James (1992) 57 SASR 365 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Defendant
Catchwords:
Statutory interpretation - Claim for declaration as to legal right dependent upon question of construction - Residual powers of Builders' Registration Board following transfer of functions to State Administrative Tribunal - Investigation by Board into alleged misconduct by plaintiff builder - Coercive powers under s 17 of Builders' Registration Act 1939 - Whether Board can require plaintiff to answer questions on oath - Privilege against self-incrimination
Legislation:
Builders' Registration Act 1939 (WA), s 8, s 12D, s 13, s 13A, s 17
State Administrative Tribunal Act 2004(WA), s 66, s 67, s 68
(Page 2)
Result:
Question of construction determined
Declaration that plaintiff has a legal right not to be compelled to attend before the Board or to answer questions on oath
Category: B
Representation:
Counsel:
Plaintiff : Mr D H Solomon
Defendant : Mr R J Price
Solicitors:
Plaintiff : Solomon Brothers
Defendant : Marc Mannes
Case(s) referred to in judgment(s):
Coco v The Queen (1994) 179 CLR 427
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
Johns v Connor (1992) 35 FCR 1
Mortimer v Brown (1970) 122 CLR 493
Palfrey v MacPhail & Anor [2004] WASCA 257
Project Blue Sky v Australian Broadcasting Authority (1998) 14 CLR 355
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328
Saraswati v The Queen (1991) 172 CLR 1
Sorby v The Commonwealth (1983) 152 CLR 281
Case(s) also cited:
Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32
Connell v Reynolds SM (1993) 9 WAR 27
(Page 3)
George v Rockett (1990) 170 CLR 104
Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384
Health Insurance Commission v Freeman (1998) 88 FCR 544
JMA Accounting Pty Ltd v Commissioner of Taxation (2004) 139 FCR 537
Johns v Australian Securities Commission (1993) 178 CLR 408
Mansfield v Director of Public Prosecutions for Western Australia [2005] WASCA 79; (2005) 31 WAR 97
Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38
Mellifont v Attorney-General (Qld) (1991) 173 CLR 289
Nguyen v Minister for Health & Ageing [2002] FCA 1241
Pambula District Hospital v Herriman (1988) 14 NSWLR 387
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Re Malley SM; Ex parte Gardner [2001] WASCA 29
Thompson v Goold & Co [1910] AC 409
Workers Rehabilitation & Compensation Corp v James (1992) 57 SASR 365
(Page 4)
1 BLAXELL J: The plaintiff is a registered builder who is subject to an "investigation" by the defendant ("the Board") into alleged misconduct in connection with two building contracts. The plaintiff has been summoned to appear before the Board to give evidence on oath, following which the matters the subject of the investigation may be referred to the State Administrative Tribunal ("the Tribunal") for disciplinary action. If so, the Tribunal will have power to cancel or suspend the plaintiff's registration under the Builders' Registration Act 1939 ("the BR Act") and also to impose fines.
2 The plaintiff contends that on a proper construction of the BR Act, the Board does not have the coercive powers of investigation that it is purporting to exercise. By an originating summons under O 58 r 11 of the Rules of the Supreme Court he applies for a declaration that he has a legal right not to be compelled to attend before the Board or to answer the questions that will be put to him.
3 The determination whether the plaintiff is entitled to that declaration depends upon a question of construction of the BR Act (and in particular s 17 of that Act). In my view, that question of construction needs to be considered in light of the history of the legislation including amendments effected by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 ("the Conferral Act") which transferred certain functions from the Board to the Tribunal. The question also needs to be considered in the context of the powers conferred on the Tribunal under the State Administrative Tribunal Act 2004 ("the SAT Act"). In this regard, the following statement by McHugh J in Saraswati v The Queen (1991) 172 CLR 1 at 21 is pertinent:
"Sometimes the purpose of the legislation is expressly stated; sometimes it can be discerned only by inference after an examination of the legislation as a whole; and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted."
4 I express the opinion at the outset that the question of construction is an awkward one, in that it is not possible to arrive at a totally satisfactory interpretation of the relevant provisions.
The relevant provisions of the BR Act
5 On 1 January 2005 the Conferral Act effected significant amendments to the BR Act. Prior to then, the Board had full powers to
(Page 5)
- investigate and inquire into alleged misconduct by a registered builder, and one of its functions (under subs 8(1) of the BR Act) was:
"(d) to cancel or suspend the registration of any person under this Act."
"The Board may allege to the State Administrative Tribunal that there is proper cause for disciplinary action as mentioned in section 13, against a builder who is registered under this Act."
7 At all material times s 13 has set out the grounds on which formerly the Board, and now the Tribunal, may cancel or suspend the registration of any builder. Relevant to the present matter, the Tribunal has power to cancel or suspend the registration of any builder:
"(c) who has been guilty of any negligence or incompetence in connection with the performance of any building work ...
(d) who has been guilty of any fraudulent conduct in regard to the carrying out or completion of any building work; or
(da) who has been guilty of conduct that is ... misleading ... in relation to ... a contract for the carrying out or completion of building work ... "
8 It is also important to note that under s 13A the Tribunal may "instead of, or in addition to, cancelling or suspending the registration of the builder under this Act impose a fine not exceeding the prescribed amount".
9 Prior to the Conferral Act, s 17 of the BR Act provided the Board with significant coercive powers "for the purpose of conducting any investigation or inquiry authorised to be made under this Act". The Conferral Act amended s 17 by deleting the words "or inquiry" in the body of the section but not in the heading. Consequently, s 17 now reads as follows:
(Page 6)
- "17. Powers on investigation or inquiry
(1) For the purpose of conducting any investigation authorised to be made under this Act, the Board may -
(a) require any person -
(i) to attend before the Board;
(ii) to produce any document before the Board;
(b) inspect any document produced before it, retain the document for such reasonable period as is required, and make copies of the document or any of its contents;
(c) require any person to swear to answer truly any relevant question put to that person by the Board (and for that purpose may administer any oath or affirmation);
(d) require any person attending before the Board to answer any relevant question put to that person by the Board; and
(e) require and take any statutory declaration."
"(2) A person who fails, neglects, or refuses to comply with any lawful order or requirement of the Board made under section 17 commits an offence and is liable to a penalty of $2000."
11 Following the Conferral Act, the functions of the Board as set out in s 8 of the BR Act do not include any that specifically relate to the power (under s 12D) to make an allegation to the Tribunal. However subs 8(1) does include a function:
"(g) generally, to carry out the provisions of this Act."
12 Subsection 8(2) also provides:
(Page 7)
- "(2) The Board shall have such powers as are reasonably necessary or expedient for the purpose of enabling it to carry out its functions ... "
The relevant provisions of the SAT Act
13 Section 36 of the SAT Act makes it clear that when there is an allegation under s 12D of the BR Act, the Board becomes a "party" to the matter thereby brought before the Tribunal. Following the commencement of such proceedings the Tribunal has power to summon witnesses (s 66) and to require them to give evidence on oath or affirmation (s 67). The Tribunal's powers under s 67 are very similar to those of the Board (under s 17 of the BR Act), but are subject to the very significant qualification that a witness cannot be compelled to answer a question if excused from doing so by s 69(1). Section 69(1) of the SAT Act relevantly provides:
"69. (1) Unless it would be contrary to section 68 ... a person is excused from answering a question or producing a document or other material in a proceeding if the person could not be compelled to answer the question or produce the document or material in proceedings in the Supreme Court."
14 Section 68 of the SAT Act provides:
"68. Privilege against self-incrimination
(1) A person is not excused from complying with a requirement under this Act to answer a question or produce a document or other material in a proceeding on the ground that the answer or the production of the document or other material might incriminate the person or render the person liable to a penalty.
(2) However neither -
(a) an answer given by the person that was given to comply with the requirement; nor
(b) the fact that a document or other material produced by the person to comply with the requirement was produced,
- is admissible in evidence in any criminal proceedings against the person other than proceedings for perjury or for an offence against this Act arising out of the false or misleading nature of an answer."
15 It is also significant that s 96 and s 97 of the SAT Act create offences for the failure of any person to comply with a summons or to give evidence as required, but only if that person does so "without reasonable excuse".
The agreed facts
16 By notice dated 28 September 2004 the Board informed the plaintiff of its intention to hold a "full inquiry" into alleged misconduct contrary to s 13 of the BR Act. The notice provided particulars of the allegations which concerned separate building contracts for work to be done at Southern River and Beaconsfield. In respect of the Southern River contract it was alleged that the plaintiff had been party to a fraudulent or alternatively misleading representation to the City of Gosnells that the owner of the works was to be the builder when in fact the plaintiff was to carry out the building work. It was also alleged that the plaintiff had been negligent by failing to comply with certain requirements of the Home Building Contracts Act, failing to obtain a building licence in his own name, and failing to ensure that a policy of home indemnity insurance was in place.
17 In relation to the Beaconsfield contract, the notice from the Board alleged that the plaintiff had been a party to a fraudulent or alternatively misleading representation to the City of Fremantle that the owner of the works was to be the builder when in fact the plaintiff was to carry out the building work. It was further alleged that the plaintiff was negligent in failing to comply with provisions of the Home Building Contracts Act and in failing to ensure that a policy of home indemnity insurance was in place.
18 The inquiry into these matters was initially set down for hearing on 15 December 2004, but prior to then the Board advised the plaintiff that it would be rescheduled for a later date. (In this regard it is relevant to note that the legislative changes brought about by the Conferral Act were due to take effect as from 1 January 2005.)
19 On 13 June 2005 the plaintiff was served with a summons issued under s 17(1) of the BR Act requiring him to attend before the Board to give evidence on oath. Attached to that summons was a letter stating that
(Page 9)
- the Board was "investigating" the plaintiff's involvement in the matters set out in the previous notice dated 28 September 2004. The plaintiff was required "to provide an explanation in relation to these matters", following which the Board would determine whether or not any of the same should be referred to the Tribunal for disciplinary action.
20 On 13 July 2005 the plaintiff's solicitors requested that the Board provide further and better particulars of the alleged misconduct, but by letter dated 18 July 2005 that request was refused.
21 When the plaintiff attended before the Board on 27 July 2005 in answer to the summons, his solicitor submitted that the defendant was not empowered to conduct the investigation proposed or to require that the plaintiff to give evidence. The Board then adjourned the hearing sine die pending the resolution of the present issues.
The submissions of the plaintiff
22 The key question of construction is whether the power of the Board (under s 12D of the BR Act) to make an allegation to the Tribunal that there is proper cause for disciplinary action means that it also has power to conduct an "investigation authorised to be made under this Act" (in terms of s 17). There is clearly no express power to conduct such an investigation and the plaintiff contends that there is no provision in the BR Act capable of establishing an implied power to that effect.
23 The plaintiff particularly relies upon the failure of s 8 to include any function which is specifically relevant to the power of the Board to make an allegation under s 12D. It is submitted that the general provisions in s 8(1)(g) and s 8(2) cannot provide the basis for an implied power to conduct an investigation under s 17, because there were previously specific functions which had that effect. As I understand this argument, the general provisions should not be construed so as to increase their scope of operation beyond that which they had when there were specific provisions conferring power on the Board to hold investigations and inquiries into misconduct.
24 If, however, subs 8(1)(g) and (2) are to be construed as providing the Board with power to conduct an investigation for the purposes of s 12D then the plaintiff contends that that would still not amount to an "investigation authorised to be made under this Act" (as per s 17).
25 A further reason advanced by the plaintiff as to why the BR Act does not provide the Board with coercive powers is that such an implication
(Page 10)
- would offend common law principles as to civil rights. In this regard the fundamental common law principle that a person is not obliged to answer questions that might incriminate him or subject him to a penalty applies to non-judicial and quasi judicial proceedings such as those that the Board intends to conduct (Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 341).
26 It is well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect (Daniels Corporation v ACCC (2002) 213 CLR 543, 553). It is submitted that this presumption applies to the BR Act because it does not expressly interfere with fundamental rights, and an implication of coercive powers is unnecessary.
The submissions made on behalf of the Board
27 The Board contends that it has the power, and hence the authority, to conduct an investigation as to whether grounds exist for it to make an allegation to the Tribunal under s 12D of the BR Act. This power is said to be found in:
- the provisions of s 8(2) of the BR Act, read with s 8(1)(g) and s 12D; and/or
- the provisions of s 12D of the BR Act, read with s 50(1) of the Interpretation Act 1984 (WA); and/or
- the incidental statutory power inherent in the power under s 12D of the BR Act, namely the well-established principle of interpretation that:
" ... a power conferred by a legislature carries with it the power necessary for its performance or execution. The express power impliedly authorises everything which can fairly be regarded as incidental or consequential to the power itself." (Johns v Connor (1992) 35 FCR 1, 10)
(Page 11)
- confers upon the Board the supplementary or special powers therein provided for the purposes of that investigation.
29 It is further submitted that there are textual considerations which support a construction as contended by the Board. In this regard:
- Section 18(1) of the BR Act allows a member of the Board or an authorised person to enter the premises of a local government and obtain information relating to applications for and the issue of building licences. This power is apt to be used within the context of an investigation by the Board (including an investigation into a matter which might possibly become the subject of an allegation under s 12D).
- Section 19A (which was inserted by the Conferral Act) provides that a person may be "investigated" notwithstanding the surrender of that person's registration.
- Section 20A(1) allows a member of the Board or an authorised person to enter upon any land and inspect building work. This power can only relate to an investigation as there is no point in having an inspection for the sake of an inspection alone.
- The power to take proceedings for offences against the BR Act pursuant to s 8(1)(f) and s 21 must carry with it the power to conduct prior investigations.
- Section 23B(1)(b) (which was inserted by the Conferral Act) requires that the Board's annual report include details of:
"(a) the number, nature and outcome, of -
(i) investigations and inquiries undertaken by, or at the direction of, the Board; and
(ii) matters that have been brought before the State Administrative Tribunal under this Act."
(Page 12)
- thereof) supports the Board's case that Parliament intended that it should ordinarily undertake an investigation prior to making an allegation under s 12D.
31 It is further submitted that the construction advanced by the Board promotes the statutory purpose or object of the BR Act. The obvious purpose is to impose standards for builders and to enable those standards to be enforced for the benefit and protection of the public to whom builders provide services. Many, if not all, of the 14 grounds of disciplinary action under s 13(1) are evaluative in character. Accordingly, it would not be possible for the Board to determine whether or not to make an allegation under s 12D without first conducting an investigation.
The proper construction of the BR Act
32 As already noted, the BR Act does not contain any provision which expressly empowers the Board to carry out an investigation when performing its functions. However, it seems obvious that the Board would be unable to perform most of its functions without a prior "investigation" (in the sense in which that term is commonly understood). To take an obvious example, the duty of the Board under s 8(1)(fa) to "carry out building information and educational activities" could not be performed without some prior investigation as to needs in those areas. Similarly, the Board could not possibly make a complaint to the Building Disputes Tribunal (under s 12A) in respect of faulty building work without a prior investigation of the relevant circumstances.
33 Section 50 of the Interpretation Act 1984 effectively provides that the conferral of a statutory power includes a conferral of such other powers as are reasonably necessary for the exercise of that power. It necessarily follows that the power conferred on the Board under s 12D of the BR Act to make an allegation to the Tribunal carries with it the power to conduct a prior investigation into the circumstances that might justify such action. (This conclusion can be reached without resort to any consideration of the Board's functions and powers under s 8.)
34 However, it is an entirely different question whether an investigation by the Board for the purposes of s 12D is an "investigation authorised to be made under this Act" within the meaning of s 17. Clearly, s 17 must be given some limitation in scope because the very nature of some of the Board's investigations would preclude the use of coercive powers (eg an investigation into educational needs).
(Page 13)
35 I have already indicated my view that it is not possible to determine the present question of construction within the four corners of the BR Act. The amendments effected by the Conferral Act and the overall statutory context including the SAT Act must also be taken into account. In my opinion, the real question to be determined is what Parliament should be taken to have intended when it removed the words "or inquiry" from s 17, inserted s 12D, and repealed par (d) of s 8(1) of the BR Act.
36 To my mind, the obvious purpose and object of those amendments was to separate the function of prosecuting registered builders for alleged misconduct from the function of determining those allegations. When the BR Act was enacted in 1939, it was not unusual for a statutory authority to have all-encompassing powers to investigate, prosecute, and determine matters which gave rise rise to penalties within the area of its operation. It is only in more modern times that legislation enacted by Parliament has come to reflect the view that the combination of such roles is inappropriate and untenable.
37 It was consistent with this trend that amendments to the BR Act in 1991 removed from the Board the function of determining complaints as to faulty building work and vested that function in a separate Building Disputes Tribunal. Those amendments left the Board with the residual power (in s 12A) to prosecute complaints before the Disputes Tribunal.
38 The provisions in the BR Act that are the subject of the present question of construction are a continuation of this same trend. In each instance, Parliament has essentially determined that there was an area of the Board's previous activities where there should be a separation of the roles of investigator/prosecutor and inquirer/judge. Nevertheless, the Board continues to exercise functions where it both investigates and determines matters which might possibly become contentious and require a hearing, namely
- applications by architects and engineers to become registered as builders (s 9A);
- applications by other persons including companies to become registered as builders (s 10);
39 Having identified what I consider to be the primary purpose of the legislation relevant to the present question of construction, I now turn to the basic principles to be applied. Section 18 of the Interpretation Act 1984 requires that a construction be adopted which promotes the underlying purpose or object of the legislation. Although that
(Page 14)
- construction will usually be found in the literal or grammatical meaning of the words used:
"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." (Project Blue Sky v Australian Broadcasting Authority (1998) 14 CLR 355, 384.)
41 In the present instance, I consider that it is particularly helpful to look at the consequences of the competing interpretations as an aid to arriving at the proper construction. If the Board's contended construction is correct, it will mean that there is potential for two separate hearings on each occasion that misconduct is alleged against a builder. The first hearing (pursuant to s 17 of the BR Act) would be for the purpose of the Board determining whether or not to make an allegation under s 12D; the second hearing (before the Tribunal) would be for the purposes of determining the merits of that allegation and whether or not sanctions should be imposed. To my mind, this is a very striking consequence of the proposed construction, and one must necessarily wonder why Parliament would see a need for two separate hearings.
42 If, on the other hand, s 17 of the BR Act is construed as not conferring coercive powers on the Board for the purposes of s 12D, then the position would remain the same as it was before the Conferral Act, namely there would be a single hearing. It is difficult to see what disadvantage the Board (or the public interest) can possibly suffer if there continues to be a single hearing for the resolution of allegations of misconduct. A representative of the Board will still have the right to question the builder, to call witnesses, and to have all relevant documents produced. In my view, this latter construction is more consistent with an underlying purpose of simply separating the roles of investigator/prosecutor and inquirer/judge.
(Page 15)
43 There is yet another consideration which in my opinion compellingly points to a construction other than that contended by the Board. This is the absence of any provision in s 17 and s 16(2) of the BR Act which addresses the common law privileges against self-incrimination and self-exposure to a penalty.
44 In providing for hearings before the Tribunal, Parliament has struck a careful balance between the public interest in uncovering relevant facts and the civil rights of individuals summoned to give evidence at such hearings. Consequently, s 68 of the SAT Act abrogates the common law privilege against self-incrimination, but at the same time provides a measure of protection by stipulating that the evidence given by a person is inadmissible in any subsequent criminal proceedings.
45 If Parliament had intended that the Board should exercise the coercive powers in s 17 for the purposes of an investigation under s 12D of the BR Act, it surely would have struck the same careful balance in respect of the privilege against self-incrimination. Yet when one looks at s 17 and s 16(2) it is very clear that this has not occurred.
46 In this regard, s 16(2) creates an absolute offence for failure to comply with a requirement of the Board under s 17, regardless of whether or not there might be a reasonable excuse. It may well be that this provision abrogates the privilege against self-incrimination altogether:
"In deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve. The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation. In such cases it will be so, notwithstanding that the answers given may be used in subsequent legal proceedings." (Pyneboard Pty Ltd v Trade Practices Commission (1982) - (1983) 152 CLR 328, 341. See also Mortimer v Brown (1970) 122 CLR 493, 495,
(Page 16)
- 498, and Sorby v The Commonwealth (1983) 152 CLR 281, 309 - 310.)
47 Irrespective of whether s 16(2) of the BR Act has this effect, it is obviously a very different provision from s 96 and s 97 of the SAT Act which create the equivalent offence only when the conduct occurs "without reasonable excuse". It is also a matter of great significance that within the BR Act itself, s 39 excuses equivalent conduct before the Building Disputes Tribunal which occurs with "reasonable excuse". It follows that in respect of both the SAT Act, and the 1991 amendments to the BR Act:
" ... the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but ... " (to a limited extent) " ... has also determined upon abrogation or curtailment of them." (Coco v The Queen (1994) 179 CLR 427, 437.)
48 Obviously, this has not happened with the amendments to the BR Act effected by the Conferral Act, and these do not manifest the same degree of care shown by Parliament when enacting those other provisions. In this regard the failure to amend the heading to s 17 is the most obvious discrepancy, and in my view, the reference to "inquiries" in s 23B(1b)(a)(i) is similarly confusing.
49 Although the heading to s 17 does not form part of the BR Act (s 32, Interpretation Act 1984) the full legislative intent in amending that section is hard to discern. It may well be that an "investigation authorised to be made under this Act" should be taken to mean the procedures provided for in s 9A and s 10. However, the coercive powers under s 17 seem to be somewhat excessive for these purposes, and I respectfully suggest that this is a question which deserves further legislative attention so that Parliament's intention may be known.
50 All that matters for present purposes is that the considerations I have outlined clearly show that the coercive powers under s 17 are not available to the Board for the purposes of determining whether or not to make an allegation under s 12D. It follows that there should be a declaration in the terms applied for by the plaintiff.
0
28
0