Rd and CM Phipps v The Regulator under the Electrical Safety Act 2002
[2020] QCAT 519
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
RD and CM Phipps v The Regulator under the Electrical Safety Act 2002 [2020] QCAT 519
PARTIES: RD AND CM PHIPPS (applicant)
v
THE REGULATOR UNDER THE ELECTRICAL SAFETY ACT 2002 (respondent)
APPLICATION NO/S:
GAR228-19
MATTER TYPE:
General administrative review matters
DELIVERED ON:
26 November 2020
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Ann Fitzpatrick
ORDERS:
The decision made by the Electrical Licensing Committee dated 13 June 2019 is confirmed.
CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review matter – where decision to refuse re-instatement of licence – eligibility requirements
Electrical Safety Act 2002 (Qld), s51, s60, s61, s170(1), s172, s210(m)
Electrical Safety Regulation 2013 (Qld), s48, s54, s61
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s19, s20, s21
REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Proper respondent
The Tribunal notes the advice of the respondent that in accordance with section 122(3) of the Electrical Safety Act 2002 (Qld) (ES Act), the proper respondent is The Regulator under the Electrical Safety Act 2002. The record is amended accordingly.
Background
RD and CM Phipps trade as Phipps Electrical. After a gap of approximately 5 years, the partnership wished to resume work as an electrical contractor, with Mr Phipps as the qualified businessperson (QBP) and qualified technical person (QTP) for the partnership. RD and CM Phipps applied to re-instate its electrical contractor licence on 13 May 2019. The application was refused on 22 May 2019 by the Electrical Safety Office.
The 22 May 2019 decision refused the application because:
(a)A partnership applying for a Queensland electrical contractor licence must nominate a qualified technical person (QTP) and qualified business person (QBP) who meet all current eligibility requirements.
(b)The current eligibility for a Queensland electrical contractor licence requires the QTP and QBP to complete additional courses of instruction/examination approved by the Regulator.
(c)The nominated QTP Mr Phipps does not currently meet the eligibility requirements for this role.
RD and CM Phipps sought an internal review of the decision on 30 May 2019 under section 170(1) of the ES Act. On 13 June 2019 the Chairperson of the Electrical Licensing Committee decided that the original decision to refuse the application for an electrical contractor licence was confirmed.
The reasons for the decision were:
(a)Under new eligibility requirements all new electrical contractor applications from 1 July 2018 must meet new QTP and QBP eligibility requirements.
(b)The QBP requirements have been met by providing evidence of operating a business for more than five years and completing competency units of study.
(c)The QTP requirements for an unrestricted electrical contractor licence have not been met. Three competency units are required to be completed: Apply currency of safe working practices and compliance verification of electrical installations; Conduct compliance inspection of single phase LV electrical installations; and Conduct compliance inspection of LV electrical installations with demand exceeding 100 A per phase.
RD and CM Phipps seek a review of the 13 June 2019 decision by this Tribunal under section 172 of the ES Act and in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). By section 19 of the QCAT Act the Tribunal has all the functions of the decision maker for the reviewable decision being reviewed. By section 20 of the QCAT Act the purpose of the review is to produce the correct and preferable decision. The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.
Applicant’s position
On behalf of RD and CM Phipps, Mr Phipps attempted to re-instate a previous, expired electrical contractor’s licence in early 2019. He was told that he was unable to re-instate the licence. Mr Phipps complained that he had been told by the licencing board in 2014 that he had 5 years to May 2019, to re-instate the licence without having to reapply and pay fees for the following 5 years. Mr Phipps complained that he had not been told about the change.
Mr Phipps was informed by the Electrical Safety Office on 7 March 2019 that his electrical contractor licence had expired. Further, by section 54 of the ES Act an electrical contractor’s licence may be issued, renewed or reinstated for a maximum of 1 year. Mr Phipps was also told that from 1 January 2019 there were new training requirements which he would have to meet. The Electrical Safety Office said that the only way to seek a review or appeal the eligibility criteria is after an application has been made and an outcome decided.
Mr Phipps complained about the need to undertake further study to be eligible as a QTP.
As a result, RD and CM Phipps applied for an unrestricted contractor’s licence. The refusal and internal review decision have led to the current application before the Tribunal.
I have referred to the Assessor’s note for the application for review of licensing decision, filed as part of the documents provided pursuant to s21 of the QCAT Act. The Assessor records that:
(a)Mr Phipps held a contractor’s electrical licence from 13 May 2005 until 12 May 2014.
(b)When Mr Phipps let the licence expire in 2014, he was advised correctly at that time, that he had five years from the date of expiry to 12 May 2019 in which he could re-apply for an electrical contractor licence and still be eligible as QTP and/or QBP. It was noted that a person who had been a QTP or QBP on a Queensland electrical contractor licence within the last five years met eligibility. I refer to this point later in the decision. It would not appear to be correct.
(c)New eligibility requirements came into effect from 1 July 2018, which no longer provided the eligibility pathway under the advice to Mr Phipps in 2014.
(d)eSafe articles published in June 2018 prior to the 1 July 2018 changes were sent to Mr Phipps email address but were never opened. A subsequent article dated May 2019 was also sent to the email address and was opened.
Mr Phipps submits that changes to the ES Act and eligibility requirements are retrospective legislation which is unfair. He submits that the Regulator has falsely accused all existing temporarily suspended licence holders of being incompetent.
Mr Phipps says that he did not receive notice of the changes because his email address was not in use. He complains that he has not received any phone calls or texts to inform him of the change.
Evidence of the eSafe articles being sent to Mr Phipps’ email address has been filed by the respondent. I accept that attempts were made to inform Mr Phipps of the changed eligibility requirements. I do not consider that the respondent was responsible for contacting Mr Phipps in any other direct way.
Legislation
Provision of an electrical contractor’s licence, as at the date of the decision refusing reinstatement, and currently, is governed by:
(a)Sections 59, 60 and 61 of the ES Act which deal respectively with the issue, renewal or reinstatement of an electrical licence. In each case, the application must comply with requirements prescribed by regulation; the Regulator may refuse the electrical licence; and the Regulator must apply any eligibility requirements prescribed under regulation.
(b)Section 61 of the ES Act which enables a person who was the holder of an expired licence to apply for reinstatement of the licence within 1 year after the licence expiry. I conclude that if re-instatement of an expired licence is not possible, an applicant must seek the issue of a new licence.
(c)Section 210 (m) of the ES Act enables the making of Regulations in relation to all matters about electrical licences including the periods for which particular electrical licences are to be in force and eligibility requirements for the issue, renewal or reinstatement of electrical licences, including relevantly requirements for particular qualifications and requirements for the successful completion of examinations or courses stated in the regulation or chosen by the Regulator.
The Electrical Safety Regulation 2013 (ES Regulation), current from 13 May 2019, covering the time of the decisions to refuse re-instatement or issue of a licence, and a further amended ES Regulation current at the present time both provide at:
(a)Section 48 - the eligibility requirements for an electrical contractor, including that the work will be performed by a QTP. Section 7 defines a QTP and requires that the person has finished a course of instruction required by the Regulator on technical aspects of performing electrical work.
(b)Section 54 - that an electrical contractor licence may be issued, renewed or reinstated for a maximum of 1 year.
(c)Section 55 – to reinstate an electrical licence the Regulator must be satisfied the applicant continues to satisfy the eligibility requirements for the licence.
(d)Section 61 – that the Regulator may decide what examination or instruction a person must undertake to assess competency.
The version of the ES Act which was current at the date of expiry of Mr Phipps’ licence in May 2014[1] was in the same terms as the current section 61 of the ES Act requiring an application for reinstatement to be made within 12 months of expiry of a trade contractor’s licence.
[1]Electrical Safety Act 2002 (Qld) current as at 1 January 2014, s61.
Consideration
It has never been the case either at the time of expiry of Mr Phipps’ licence in May 2014 or at the time he applied for re-instatement in 2019 that an electrical contractor’s licence could be issued for more than 1 year at a time or that an application for re-instatement could be made more than one year after expiry.
To the extent Mr Phipps thought that he was excused from renewing his licence annually and that he had a 5 year time frame for reinstatement, Mr Phipps appears to have misunderstood the advice he was given in May 2014 or perhaps he was given wrong advice. Mr Phipps has not provided any contemporaneous record of his conversation with the licensing board. It is in any event irrelevant because the real issue is what the law was at the time.
The only record of the advice given appears in the assessor’s note referred to earlier. The note records that what Mr Phipps was told was that if he had held a contractor’s licence and had been a QTP and QBP within 5 years prior to the application for a new licence then he would be eligible to be granted the new licence. That advice relates to the eligibility requirements for a QTP and QBP at that time.
The eligibility requirements changed from 1 July 2018 requiring extra study and qualifications.
In referring to the definitions of a QTP and QBP in each of the relevant versions of the Regulation, being the Regulation current in 2013[2] before expiry of RD and CM Phipps’ licence, the later Regulation current at the date of expiry of the licence[3]; the Regulation in force as at the date of the refusal decisions,[4] and the current Regulation[5], each definition provides that a QBP is a person who is a fit and proper person, is competent and either has finished a course of instruction or has been operating a business for a period of or periods totalling 5 years. There is no similar provision that if a person has held an electrical contractor’s licence in the last 5 years, they remain eligible as a QTP. The assessor’s note is not accurate insofar as it refers to the eligibility for re-instatement of an electrical contractor’s licence as at May 2014 by reference to the definition of a QTP.
[2]Electrical Safety Regulation 2002 (Qld) current as at 1 July 2013, s7.
[3]Electrical Safety Regulation 2013 (Qld) current as at 1 January 2014, s7
[4]Electrical Safety Regulation 2013 (Qld) current as at 13 May 2019, s7
[5]Electrical Safety Regulation 2013 (Qld) current as at 1 September 2020 7, s302, s303; Electrical Safety Regulation 2013 (Qld) current from 1 September 2018 to 31 December 2018, s7.
Each definition of a QTP in the various Regulations requires a person to have satisfactorily finished a course of instruction or an examination required by the Regulator (or in earlier versions the Chief Executive) on technical aspects of performing electrical work.
CM Phipps and RD Phipps as an applicant for an electrical contractor’s licence are bound by the legislation in force at all relevant times.
This is not a case of retrospective application of new obligations on persons with existing rights. If that were the case one would usually find transitional provisions in amending legislation. It is the case that the Regulator is entitled to and has always been able to prescribe appropriate courses of study to enable qualification as a QTP. It is not the case, as submitted by Mr Phipps that the Regulator treats previous licence holders as incompetent.
The purpose of the ES Act and ES Regulation is to ensure safety of licensed electrical workers and the community. To that end electrical licensing arrangements are established under the Act and Regulation which ensure any QTP is up to date with relevant technical knowledge. It would be contrary to the safety requirements of the legislation to allow old qualifications to stand for a period of 5 years. That has never been the case in any version of the legislation.
I find that the correct and preferable decision is that the decision made by the respondent dated 13 June 2019 is confirmed.
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