Ruckschloss v Simmons
[2014] ACTSC 340
•17 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ruckschloss v Simmons and Anor |
Citation: | [2014] ACTSC 340 |
Hearing Dates: | 21 and 22 November 2013 |
DecisionDate: | 17 December 2014 |
Before: | Penfold J |
Decision: | 1. The appeal is dismissed. 2. The parties will be heard about any other necessary orders. |
Category: | Principal Judgment |
Catchwords: | ADMINISTRATIVE LAW – Appeals from Administrative Authorities – separate question – whether construction occupations registrar can impose conditions on licensed building surveyors relating to acceptance of advice from engineers or from a named engineer. APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – appeal from interlocutory decision of Master answering a separate question – appeal lies to single Judge – Master’s reasoning not shown to have been erroneous – Master’s answer to question not shown to be wrong – appeal dismissed. STATUTES – ACTS OF PARLIAMENT – Operation and Effect of statutes – Construction Occupations (Licensing) Act 2004 (ACT) – separate question – whether there is power under s 21 of the Act to impose conditions on the licences of building surveyors relating to engineers. |
Legislation Cited: | Constitution, s 92 Racial Discrimination Act 1975 (Cth) Administrative Decisions (Judicial Review) Act 1989 (ACT), s 6(1)(d) Building Act 2004 (ACT), ss 47, 48, 48(3)(i), 48(3)(j) Construction Occupations (Licensing) Regulation 2004 (ACT), reg 29 Court Procedures Rules 2006 (ACT), r 1521 Explanatory Statement, Construction Occupations (Licensing) Bill 2003 (ACT), cl 21 Australian Capital Territory, ACT Legislative Assembly Debates, ACT Legislative Assembly, 20 November 2003, 4383, Simon Corbell |
Cases Cited: | Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1949] 2 All ER 680 The Commonwealth and the Postmaster-General v The Progress Advertising and Press Agency Co. Proprietary Ltd (1910) 10 CLR 457 |
Texts Cited: | Sir William Wade and Christopher Forsyth, Administrative Law (Oxford University Press, 9th ed, 2009) Dennis Pearce, ‘Principles of Legality and Human Rights: Seeking the Hymn Sheet’ (paper presented at 2013 Public Law Weekend conference, Centre for International and Public Law, ANU College of Law, 15 November 2013) |
Parties: | Jan Ruckschloss (Appellant) Craig Simmons in his capacity as Director, Constructions Services Branch, Environment and Sustainable Development Directorate (First Respondent) David Middlemass in his capacity as ACT Construction Occupations Registrar (Second Respondent) |
Representation: | Counsel Mr A Street SC (Appellant) Mr R Clynes (First and Second Respondents) |
| Solicitors KJB Law (Appellant) ACT Government Solicitor (First and Second Respondents) | |
File Number: | SC 414 of 2011 |
Decision under appeal: | Court: ACT Supreme Court Before: Master Mossop Date of Decision: 19 July 2013 Case Title: Jan Ruckschloss v Craig Simmons & Anor (No 2) Citation: [2013] ACTSC 133 |
Introduction
Jan Ruckschloss is an engineer. By originating application filed on 6 December 2012, he sought judicial review of the conduct of two officers of the Department of Environment and Sustainable Development, one of them being the Construction Occupations Registrar (the Registrar), being conduct that, Mr Ruckschloss said, would have an effect on his work as an engineer.
Mr Ruckschloss applied for an interim injunction preventing the two departmental officers continuing with their proposed conduct pending determination of the judicial review application. The application for the interim injunction was heard by Sidis J on 14 March 2013, and on 22 March 2013 her Honour refused to issue the injunction sought unless Mr Ruckschloss gave certain undertakings.
The matter was then docketed to the Master, and on 31 May 2013 his Honour ordered that one aspect of the application be determined as a separate question under r 1521 of the Court Procedures Rules 2006 (ACT).
The separate question was argued before the Master on 19 June 2013, and on 19 July 2013 the Master handed down his decision on the question (Ruckschloss v Simmons & Anor (No 2) [2013] ACTSC 133).
This is an appeal from that decision of the Master.
Background
Mr Ruckschloss holds a Bachelor of Engineering degree with Honours and is a member of the National Professional Engineering Register Australia, a Chartered Professional Engineer and a corporate member of the Institute of Engineers Australia.
The two departmental officers are involved in the regulation of construction work in the ACT. One aspect of that regulation is that a certificate of occupancy, to the effect that among other things a building is fit for occupation and use, may be issued in reliance on certificates and other documents given to the Registrar by a licensed building surveyor (often referred to, including in these reasons, as a “certifier”).
At some point before November 2012 concerns arose about the standard of the professional engineering services provided by Mr Ruckschloss, and it was suggested in a letter to Mr Ruckschloss from the first respondent that Mr Ruckschloss’s services had “contributed to multiple breaches of” the Building Code of Australia (BCA) and the Building Act 2004 (ACT). That letter notified the appellant that the second respondent (the Registrar) proposed to exercise his powers under the Construction Occupations (Licensing) Act 2004 (ACT) (the COL Act) by imposing a new condition on the licence of each licensed certifier; that condition would require an independent engineer to check any of Mr Ruckschloss’s engineering work before the certifier could provide “any certification services in relation to” that work. I shall refer to that condition as the proposed condition.
In this and another letter, a total of eight projects were identified in which either breaches of the BCA or relevant legislation, or “significant design failures”, had been linked with Mr Ruckschloss’s involvement in the project concerned. Another relevant project was mentioned in a further letter to Mr Ruckschloss
It is clear that the proposed condition would make Mr Ruckschloss’s services significantly less attractive to those engaged in the construction industry than the services offered by any engineer whose work was not required, in effect, to be checked by another qualified engineer.
It seems that at the point when the respondents decided to impose the proposed condition on certifiers’ licenses, there was no direct regulation of engineers in the ACT. It was agreed that, by January 2013, a scheme for regulating the work of engineers was being developed.
Mr Ruckschloss challenged the respondents’ power to impose the proposed condition, asserting in short that the relevant legislation gave the respondents:
(a)no power to regulate engineers; and
(b)therefore no power to impose a condition on licences under that legislation that related to the appellant.
Although it was not specifically identified in the originating application, it seems that the initial challenge relied on s 6(1)(d) of the Administrative Decisions (Judicial Review) Act 1989 (ACT), which is relevantly as follows:
(1)If a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person aggrieved by the conduct may apply to the Supreme Court for an order of review in relation to the conduct on any 1 or more of the following grounds:
...
(d) that the enactment under which the decision is proposed to be made does not authorise the making of the proposed decision;
The Master framed a question to be determined separately as:
Does the first and/or second defendant have power under s 21 of the ConstructionOccupations (Licensing) Act 2004, or otherwise, to impose conditions on the licences of building surveyors (certifiers) that relate to the plaintiff?
His Honour answered the question “Yes”.
Mr Ruckschloss has appealed from the Master’s decision.
Nature of appeal
It was agreed that this appeal is from an interlocutory decision of the Master, and that an appeal from such a decision lies as a right to a single Judge of the Supreme Court (Supreme Court Act 1933 (ACT), s 9(2)(a)).
The appeal
The grounds of appeal against the Master’s decision are as follows:
(a) That his Honour erred in law in the proper construction of s21(2) of the Construction Occupations (Licensing) Act 2004.
(b) That his Honour erred in law by failing to take into account the nature, structure, purpose and text of the Construction Occupations (Licensing) Act 2004 in construing the scope of the power under s21.
(c) That his Honour erred by failing to take into account that the appellant was not within the construction occupation or occupation class the subject of the licensing power under Part 3 Division 3.1 in construing the scope of the power to impose a condition.
(d) That his Honour erred by failing to take into account that the condition must be operative on the licence of the applicant under the Construction Occupations (Licensing) Act 2004.
(e) That his Honour erred by failing to take into account that the scope of the power to impose conditions under s21 was confined to the provisions of services by the applicant for the licence.
(f) That his Honour erred in law by failing to hold that s21 does not authorise a condition operative upon a third party so as to burden a third party in the provision of services by the third party in a construction occupation or for a construction occupation.
(g) That his Honour erred in law by taking into account that the Registrar could impose any condition necessary or desirable for the protection of the public.
(h) That his Honour erred in law by failing to take into account that the power to impose a condition in protection of the public was confined to protection of the public in respect of the applicant for the licence.
(i) That his Honour erred in law by failing to take into account that the condition sought to be imposed was not confined to protection of the public in respect of the applicant for the licence but extended to purported protection of the public in the provision of services by the appellant.
(j) That his Honour erred in law by taking into account the assumption that the condition sought to be imposed had an effect on persons generally in the position of the appellant rather than an effect upon the appellant alone.
(k) That his Honour erred in law by failing to distinguish between the scope of the power and requirements for exercise of the power.
(l) That his Honour erred in law by taking into account irrelevant considerations to the scope of the power being the Building Act 2004.
(m) That his Honour erred in law by failing to take into account that the Registrar could not impose a condition under s21 that could not be imposed by the Regulations.
(n) That his Honour erred in law by failing to take into account that the Regulations could not impose a condition that operated in a discriminatory manner between other engineers and the appellant as an individual.
(o) That his Honour erred in law by failing to hold that s21 did not authorise the imposition of a condition by the Registrar that operated in a discriminatory manner between other engineers and the appellant as an individual.
It will be apparent that these 15 appeal grounds in fact raise only a small number of challenges to his Honour’s decision, and that several of the challenges simply assert error rather than identifying the nature of the error asserted (except to the extent that the “error” consists of finding against the appellant’s submissions at first instance).
The Construction Occupations (Licensing) Act 2004
It seems to me that the relevant version of the COL Act is that Act as in force at 6 December 2012 when Mr Ruckschloss filed his original application (that version of the Act remained in force from 2 March 2012 to 8 July 2013).
The long title of the COL Act is “An Act to regulate construction occupations, and for other purposes.” The construction occupations to be regulated are defined in s 7 as follows:
7What is a construction occupation?
Each of the following is a construction occupation:
(a)asbestos assessor;
(b)asbestos removalist;
(c)builder;
(d)building assessor;
(e)building surveyor;
(f)drainer;
(g)electrician;
(h)gasfitter;
(i)plumber;
(j)plumbing plan certifier;
(k)works assessor.
The occupational group whose licences were proposed to be amended by the inclusion of the proposed condition were the building surveyors (certifiers).
Section 21 of the COL Act provides for conditions to be imposed on licences by regulation, or by amendments to licences made by the Registrar, as follows:
21Licence conditions
(1)The regulations may prescribe—
(a)conditions on licences; and
(b)when conditions on licences (whether imposed under the regulations or by the registrar) take effect.
(2)The registrar may amend a licence by putting a condition on the licence, or by amending or cancelling a condition the registrar has put on the licence, at any time by written notice given to the licensee, unless the regulations provide otherwise.
(3)The registrar may amend a licence by putting a condition on the licence, or amending the licence, only if satisfied that it is necessary or desirable to protect the public.
The appellant’s arguments – in general
In argument at the appeal hearing, it became apparent that the appellant’s challenges to the respondents’ proposed actions could be summarised as follows:
(a)That the Master erred in failing to find that s 21 of the COL Act, properly construed, did not authorise the imposition of the proposed condition on licences issued to certifiers.
(b)That if s 21, properly construed, did authorise the imposition of the proposed condition, it must have been to that extent invalid because of the discriminatory effect of the conditions (an argument also put to the Master, but in slightly different terms and in reliance on different authorities).
The appellant notes that the current argument is confined to the scope of the power, and does not extend to how it has been exercised. There is no immediate challenge to the imposition of the proposed condition to the extent that it is an exercise of any power that is available under s 21, and in particular there is no challenge to the respondents’ plan to impose the proposed condition based on the respondents’ approach to the decision-making process, and no claim that the proposed condition is not appropriate to protect the public. That is, if the Registrar has the power under s 21 to impose conditions relating to the appellant personally, the appellant does not claim that the power has been improperly exercised, although counsel reserves the right to make such a claim in other proceedings.
The proper construction of s 21
No explicit exclusion of proposed condition
It is accepted that there is nothing in the COL Act or other relevant legislation that explicitly prevents the imposition of the proposed condition.
No explicit regulation of engineers
Instead, the appellant relies on a more general argument that the COL Act as a whole simply does not contemplate that engineers or their activities may be regulated under it, in particular by the imposition of conditions on members of occupational groups who are required to be licensed under it, and therefore there is no power under s 21 that can be exercised as proposed.
Counsel seeks to make out this argument in two ways, first simply by pointing to all the provisions of the legislation that do not refer to engineers, and secondly by pointing to a small number of provisions that, he argues, are actually inconsistent with the proposition that conditions relating to engineers as a group, or to a named engineer, could be imposed.
Application of the COL Act to engineers and architects
One of the appellant’s key arguments rests on the fact that the COL Act does not provide for the licensing of either architects or engineers.
Neither profession is included in the list of “construction occupations” set out in s 7 of the Act (at [20] above). There is material in parliamentary documents confirming that the Act is not intended to provide for the regulation of architects, and the appellant says that it is implicit that engineers are also excluded.
In the second reading speech for the Construction Occupations (Licensing) Bill 2003 (20 November 2003), Minister Corbell said:
The occupational licensing reform set out in the legislation will affect builders, electricians, plumbers, drainers and gasfitters, building surveyors - in other words, building certifiers - and plumbing plan certifiers. The architectural profession has not been included in the present legislation, as consultation with the profession has confirmed that there are particular issues that require consideration through a separate reform process.
The Explanatory Statement for that Bill identified the Bill as introducing “a separate licensing and disciplinary regime” and said of the proposed licensing provision:
Clause 21 enables conditions to be placed on, or removed from, a licence at any time, by issuing a written notice to the lessee. A decision to place conditions on a licence is reviewable by the Administrative Appeals Tribunal. In addition to the registrar’s power to impose conditions, the Regulations may prescribe standard conditions on licences and state when conditions on licences (whether imposed under the Regulations or by the registrar) take effect. The fundamental reason for this provision is in order that the work a licensee may undertake can be limited where it becomes apparent that restriction is necessary for public health, safety or amenity as provided for in construction standards.
Counsel for the appellant points to provisions which he says make it clear that the legislation is aimed at regulating licensees and not anyone else, being:
(a)s 17 of the COL Act, which permits applications to be made for licensing in a construction occupation (as defined in s 7);
(b)s 104A of the COL Act, under which the Registrar may approve a code of practice for a construction occupation or class of construction occupation, and also for a construction service (which involves work in a construction occupation (s 6(2)); and
(c)s 87 of the COL Act which provides for the enforcement of licence conditions and codes of practice by creating offences of contravening a licence condition or code of practice.
Counsel is clearly right in pointing out that the COL Act establishes a licensing scheme for specified occupations not including engineers or architects, and establishes various mechanisms, including the imposition of licence conditions and the approval of codes of practice, for regulating people engaged in those specified occupations. [
He is no doubt also correct in saying that Minister Corbell’s reference to architects being excluded from the COL Act regulation (at [31] above) does not mean that engineers are included (any more than it means that doctors or lawyers are included).
However, the next step in counsel’s argument is not so convincing. It may be, in counsel’s terms, “crystal clear” that the COL Act does not establish a licensing or disciplinary scheme for architects or engineers, but that does not mean that it is also clear that, in counsel’s words, the COL Act provides “no power in respect of” architects or engineers. Apart from anything else, it is not clear what providing “no power in respect of engineers” would actually mean (beyond meaning, as is common ground, “not establishing a licensing or disciplinary scheme applying to engineers”).
The fact that neither the licensing scheme nor the various regulatory mechanisms provide for the regulation of architects or engineers does not of itself establish that the regulation of the relevant construction occupations may not involve actions that affect architects or engineers.
In particular, it does not establish, or even provide a basis for arguing, that in the absence of a licensing or disciplinary scheme for architects or engineers nothing can be done under the COL Act, even for purposes clearly set out in the COL Act, if it affects an architect or engineer in any way.
For instance, it seems likely that licence conditions imposed on, say, builders or plumbers might affect the work of architects or engineers, at least to the extent that conditions affecting how construction work can be undertaken will put constraints on the feasibility of particular designs or engineering solutions.
Counsel for the appellant also makes the following submissions in support of his general proposition about the relationship between the COL Act and engineers:
(a)that the scope of the power conferred by s 21 is “informed by s 21 and the structure of [the COL Act]”;
(b)that s 6 defines a “construction service” as “the doing or supervision of work in a construction occupation”, and a construction occupation does not include engineering work;
(c)that s 21 only gives the registrar a power to impose conditions “referable to the work of the licensee”;
(d)that s 21 should be read as if it restricted the conditions that may be imposed to conditions “in respect of the work by the licensee”;
(e)that s 21(3), which permits licence amendments only if the registrar “is satisfied that it is necessary or desirable to protect the public” is clearly only intended to apply where the need is to protect the public “in respect of” the particular licensee;
(f)that Pt 4 of the COL Act, which deals with the power to make rectification orders, only permits rectification orders to be made against licensees or former licensees;
(g)that although Pt 6A of the COL Act provides information-gathering powers broad enough to permit the Registrar to seek information from architects or engineers, the power is only given in relation to information “reasonably required by the Registrar for the administration and enforcement of the [COL Act]”;
(h)that although s 103 includes engineering in the list of qualifications that make a person eligible to be appointed as the Registrar, this does not mean that the COL Act is intended to allow the regulation of engineers;
(i)that reg 29 of the Construction Occupations (Licensing) Regulation 2004 imposes obligations on a licensee if the licence is to be amended or endorsed.
The appellant says, in summary, that the legislation is intended to permit the regulation of licensees, specifically by regulating their own work and their performance of that work, not by regulating the work of any third party.
By and large, these submissions re-state rather than support the appellant’s basic proposition, that s 21 does not authorise the imposition of the proposed condition. Most of them do not go beyond reiterating that engineers are not an occupational group licensed under the COL Act. None of them establishes that a condition attached to a licence issued under that Act cannot refer to or relate to or affect an engineer.
This aspect of counsel’s approach is in my view of limited value. There is no doubt that the COL Act provides for the imposition of conditions on licensed practitioners of specified construction occupations not including engineers, and provides a specific criterion for the imposition of such conditions. However, if a proposed condition can be justified by reference to that condition, the fact that it affects a person who is not licensed under the Act does not seem to have any necessary consequences. For instance, a condition prohibiting licensed electricians, on safety grounds, from using a particular kind of wiring or electrical plug would presumably affect an ACT manufacturer or distributor of the relevant fittings, but if the condition were justified on the grounds of protection of the public, I cannot see that it could be argued that the condition was beyond power because distributors of electrical fittings were not regulated by the Act.
The respondent addressed this question in written submissions simply by listing various provisions of the COL Act, of regulations made under that Act, and of the Building Act. Since I have not been persuaded by the appellant’s submissions, I have fortunately not felt any obligation to work through the provisions mentioned by the respondent and try to infer what arguments might be made by reference to them.
Inconsistency between s 21 and other provisions
Counsel for the appellant made several submissions based on alleged inconsistencies between s 21 (if it were intended to empower the Registrar to impose conditions of the proposed kind) and specific provisions of relevant legislation.
Notice requirements for conditions imposed by licence amendments
Counsel said that s 21(2) of the COL Act, in only requiring notice to be given to licensees whose licences are to be altered (whether by imposing conditions or amending or cancelling existing conditions), shows a legislative intention that the licence changes may only involve conditions relating to the licensee and not conditions that relate to any other person. The argument is that if it were intended that conditions could be altered to affect other people, then there would be a requirement for those other people to be notified.
However, counsel concedes that the appellant’s challenge is not just to the Registrar’s power to amend existing licences under s 21(2) to impose conditions affecting people other than the licensee, but would extend to the inclusion, by regulation under s 21(1), of such conditions on licences as issued. To that extent, he concedes that the notice requirement in s 21(2) does not provide a complete basis for the asserted restrictions on the scope of s 21.
This argument is, however, unsustainable even to the extent that it relates to licence conditions imposed by amendment.
First, it is easy to identify other ways in which the amendment of a licence might properly affect a person who is given no right to be notified of the change. New licence conditions could affect, perhaps substantially, the employees of a licensee, whether a certifier, builder, electrician or any other person licensed to engage in a construction occupation. For instance, a restriction on the kinds of building projects in which a licensee could participate might lead the licensee to reduce the number of people employed in his or her business. Counsel’s argument would require s 21 to be read as precluding the imposition of licence conditions that might affect employees working for a person holding a construction occupation licence.
Secondly, s 21(2) says that the Registrar “may amend a licence ... by written notice given to the licensee”. The effect of this provision is not to give a right of advance notice, or any kind of procedural fairness, even to the licensee. Rather, the licence is amended by giving written notice to the licensee, who is the person who is bound by the licence condition and required to act in accordance with it. It would be both unfair and possibly ineffective to change licence conditions without giving notice to the licensee, but other people who might be affected by the new or amended condition (as distinct from having obligations under it) will become aware of the impact as the licensee begins to operate in accordance with the amended licence. The giving of written notice to the licensee is what makes the amendment operative, and the failure to give direct advice to others who might be affected is irrelevant to making the amendment effective. Thus, no conclusions about the intended scope or impact of licence conditions can be drawn from the failure to provide for notice to be given to anyone other than the licensee concerned.
Interaction between COL Act and Building Act
Sections 47 and 48 of the Building Act (as in force from 1 July 2012 to 21 May 2013) are relevantly as follows:
47Structural engineer’s certificate
(1)A certifier may require the owner of a parcel of land where building work is being, or has been, carried out to give the certifier the certificates by professional engineers about the structural sufficiency, soundness and stability of the building as erected or altered for the purposes for which the building is to be occupied or used.
(2)The certifier may require the certificates only if satisfied on reasonable grounds that it is desirable to do so in the interests of people who occupy or use, or are likely to occupy or use, the building or part of the building that is being, or has been, erected or altered.
(3)The certifier may require the certificate at any time before or after the completion of building work.
48Completion of building work
(1)This section applies if—
(a)building work appears to have been completed; and
(b)either—
(i) the certifier is satisfied on reasonable grounds that the work has been completed—
(A) in accordance with this Act; and
(B) in accordance with, or substantially in accordance with, the approved plans; or
(ii) the certifier is satisfied on reasonable grounds that—
(A) the work has not been completed in accordance with this Act; and
(B) the work has been completed in accordance with, or substantially in accordance with, the approved plans or plans that have been approved plans for the work, but are no longer approved plans in the circumstances prescribed by regulation; and
(c)the building as erected or altered is structurally sufficient, sound and stable for the purposes for which it is to be occupied or used.
(2)A regulation may prescribe when work is or is not substantially in accordance with approved plans.
(3)Within 7 days after the day the certifier is satisfied, the certifier must give to the construction occupations registrar the following:
(a)...
(i)if a certificate has been obtained under section 47 (Structural engineer’s certificate)—the certificate;
(j)if no certificate under section 47 has been obtained—a written statement to the effect that—
(i) the certifier is satisfied that the building as erected or altered is structurally sufficient, sound and stable for the purposes for which it is to be occupied or used; and
(ii) no certificate under section 47 is required;
Section 48 requires an engineering “clearance” as part of the certification process. It permits a certifier either to provide an engineer’s certificate obtained under s 47, or to state his or her own satisfaction that the building is structurally sufficient, sound and stable for purpose and that no engineer’s certificate is required.
Counsel says that s 48, in allowing a certifier to choose between:
(a)attesting to the structural soundness of a building him or herself (s 48(3)(j)); or
(b)relying on, and providing, a certificate obtained from a professional engineer under s 47 to similar effect (s 48(3)(i));
establishes a regime that would be inconsistent with the power to impose a condition on a certifier’s licence that he or she cannot rely on a certificate provided by a named engineer.
I note first that “professional engineer” as used in s 47 does not seem to be defined anywhere, making s 47 of apparently uncertain scope.
Secondly, it is true that the proposed condition under s 21 of the COL Act would in a factual sense confine the scope of the options provided to certifiers by s 48 of the Building Act, to the extent that it would exclude the certifier’s ability to use one particular engineer as the sole provider of a s 47 certificate. However, I do not accept that this creates any legislative inconsistency as such, rather than simply a factual limit on the operation of the Building Act.
I cannot see, for instance, that an exercise of the legislature’s undoubted power to define “professional engineer” for the purposes of the Building Act by reference to the possession of particular engineering qualifications would be inconsistent with ss 47 and 48 of that Act to the extent that it excluded engineers without the recognised qualifications. Similarly, that s 21 of the COL Act permitted a factual limit being applied to the class of engineers who could provide certificates under s 47 of the Building Act would not make s 21 inconsistent with the Building Act.
Conclusions
None of the aspects of the COL Act and the Building Act referred to by counsel seem to require, or even permit, s 21 to be interpreted as excluding the imposition on licensees of a license condition that might affect the work of engineers, or of a particular engineer.
To the contrary, the relationship between certifiers and professional engineers created by ss 47 and 48 of the Building Act, if anything, tends to support the proposition that s 21 should be available to ensure that certifiers only rely on engineering advice considered to be competent.
Criticisms of the Master’s judgment
The specific criticisms of the Master’s judgment do not generally take the appellant’s case any further than the substantive submissions about the interpretation of s 21 that were made by counsel on the appeal.
At [22], the Master relevantly said:
Part 4 of the Act provides a scheme for the making of rectification orders against licensees and sets out other obligations of licence holders. Part 5 of the Act relates to licence suspension and occupational discipline. Part 6 of the Act has various provisions relating to compliance auditors appointed under the Act. Part 7 of the Act contains offence provisions. Part 8 of the Act sets up a scheme of demerit points for licensees. Part 9 of the Act is headed “Administration”. Section 103 of the Act provides for the appointment of a public servant as the Construction Occupations Registrar. Section 104 of the Act outlines the Registrar’s functions.
Counsel for the appellant criticises his Honour’s statement that Pt 5 of the Act relates to licence suspension and occupational discipline. The criticism is that his Honour should have said that Pt 5 relates to licence suspension and occupational discipline “of licensees”.
His Honour is also criticised for not specifying that Pt 9 of the Act, headed “Administration”, authorises the creation of codes of practice “for licensees”.
I cannot see the point of these criticisms, unless counsel is submitting that by failing to specify these limits, his Honour displayed some confusion over the scope of the licensing scheme created by the COL Act. There is no doubt that the Master was well aware that the licensing scheme was a scheme for licensing members of construction occupations as defined, and it seems most likely that his Honour failed to note the two points made by counsel only because he could see no need for such repetition. However, as already noted (at [36] above) the fact that the licence suspension, occupational discipline, and creation of codes of practice provided for by the COL Act apply directly only to licensees under that Act does not establish that regulation of members of construction occupations cannot have any impact on any other person or group, including another occupational group.
At [32] of his judgment the Master said:
In any event, whether or not such an interpretation is given to s 48(1)(c), it can be seen from the scheme of s 48 that the role of the certifier is absolutely central in ensuring that the prescribed requirements, including requirements as to quality and safety, are met. It is the certifier’s opinion as to the matters under s 48(1) which will determine whether or not documents are provided to the Registrar. The certifiers decision that the preconditions in s 48(1) are met, which gives rise to the obligation to submit documents to the Registrar, will, in a practical sense, be determinative of whether or not a certificate of occupancy is issued because the Registrar will rely upon the documents provided to be satisfied that it is appropriate to issue a certificate of occupancy. Thus, the robustness of the certification process is central to the operation of the Act.
Counsel criticises the Master’s comment that:
the role of the certifier is absolutely central in ensuring that the prescribed requirements, including requirements as to quality and safety, are met.
The criticism is that the Master should have specified that the role of the certifier is central in ensuring that requirements as to quality and safety are met “by licensees”. Such an addition to the Master’s comment would however change its meaning, at least as it applied to licensees who were certifiers; in such a case it would state that the role of the certifier is absolutely central in ensuring that the certifier meets quality and safety requirements, a comment quite different from (and far less useful than) the comment in fact made by the Master. His Honour’s comment, as I understand it, refers to the certifier’s role in ensuring that all the other people, in particular but not necessarily only licensees, involved in the construction of a building have complied with relevant quality and safety requirements.
I do not understand counsel’s comments, made in relation to [32] of the Master’s judgment, that s 48 of the Building Act cannot be elevated to a central provision “beyond the scope of its terms”, and that his Honour’s reference to the importance of the robustness of the certification process is “an embellishment”, not a “proposition of construction”. His Honour’s comment may indeed not be a proposition of construction, but it is nonetheless a relevant comment to make about the role of the certifier under the COL Act.
Other criticisms are made by reference to mis-readings of his Honour’s comments. At [41] the Master said:
The certification decision under s 48 is then relied upon by the Registrar in making the ultimate decision under s 67 as to whether the requirements of the Act have been met which would lead to the issue of a certificate of occupancy. Although the Registrar may have regard to more than just the material provided to the Registrar under s 48: see s 67(2), unless the Registrar is to repeat the work of the certifier, the quality and reliability of the documents given to the Registrar under s 48 is central to the operation of these parts of the Act.
Counsel criticises what he reads as a statement by the Master that s 48 is central; however, what his Honour actually says in this paragraph is that “the quality and reliability of the documents given to the Registrar under s 48” are central to the operation of the Act, not that s 48 itself is central.
At [36] the Master said:
The requirement in s 21(3) that the Registrar be satisfied that it is necessary or desirable to protect the public is an indication that the purpose of regulation of construction occupations is the protection of the public. Given the varying activities conducted by those carrying out construction occupations, the protection of the public can involve a range of things. It certainly extends to the protection of the public in so far as they deal with licencees. An example of this would be the regulation of their dealings with members of the public when entering contracts for the provision of services. It is also open, in my view, to regulate the quality of their work so as to protect the broader public, who have not dealt directly with the person carrying out the construction occupation, from the possible consequences of defective or inadequate decisions by that person. It is this latter category of conditions which does, in my view, encompass conditions relating to the plaintiff. (emphasis added)
Counsel criticises the Master on the ground that the first sentence in this paragraph should say “that the purpose of regulation of construction occupations is the protection of the public in respect of the licensee”, and that this last phrase has been omitted by his Honour; counsel conceded that it had also been omitted from the legislation. This submission simply begs the question. Counsel cannot establish that the legislation was intended to protect the public only from any direct risks arising from the involvement of licensees simply by asserting that the qualification he puts forward should be read into the legislation; rather, he needs to demonstrate that the qualification was actually intended and implicit in the legislation. Counsel submits that it would be inconsistent to read the legislation as aimed at the protection of public from everyone, but it does not seem to me to be inconsistent with anything in particular to seek to protect the public, in relation to construction work, from anyone whose work feeds into the work of the certifier of that construction work, at least in such a significant way as the work of an engineer may do under s 48 of the Building Act.
Counsel criticises the Master for saying in [36] that the protection of the public “certainly extends to the protection of the public in so far as they deal with licencees”. He says that “in so far as they deal with” should be replaced by “in respect of”, but counsel provides no basis for this claim, and no explanation of what difference this would make, although I assume that counsel’s view is that “in respect of licensees” describes a narrower interaction between the public and licensees than “in so far as they deal with licensees”.
Counsel also criticises the last two sentences in [36] of the Master’s judgment (emphasised in the extract at [70] above). Counsel reads his Honour’s reference to “their work” as applying to the work of engineers, whereas it seems to me that grammatically that phrase, and “Their dealings” in the preceding sentence, must refer back to the work of the group last mentioned before that reference, being licensees. In support of his interpretation, counsel says that if “their work” refers to the work of the certifier (one kind of licensee), then the last sentence of his Honour’s paragraph is a non sequitur. I suspect that counsel is right in this particular comment, to the extent that the Master’s statement applied to certifiers as distinct from members of other licensed construction occupations. The fact that members of the broader public have not dealt with persons carrying out construction occupations in relation to a particular building may mean that they need to be protected by the work of the certifier who, in effect, is responsible for checking and approving the work of members of other construction occupations. However, it does not necessarily require members of the public to be protected from people providing services to members of those other construction occupations in any different way from the way in which the owner of the building needs to be protected. The certifier has a role in protecting both the owner of the building and members of the public who might use the building at any stage from dangers created by inadequate work by other licensees or others involved in the building project. This slight oddity in his Honour’s reasoning does not, however, undermine the validity of his conclusions more generally.
Counsel criticises the Master’s reasoning by reference to other inputs into the work of a certifier, saying that even if some inputs (eg software or equipment as discussed at length by the Master) can be regulated via the certifier’s licence, it is not logical to say that input consisting of work done by a third party can be similarly regulated, because an engineer’s work is not just another input. Counsel provides no authority or argument establishing or explaining why it would be illogical to treat an engineer’s work as simply another input.
At [42] the Master said:
It is not to the point to submit, as did the plaintiff, that engineers are not listed in the list of construction occupations and hence there was no power under the Act to “regulate engineers”. A condition regulating the quality of inputs into certification decisions may have consequences for engineers just as it might have consequences for software manufacturers in the example given above. Whether that amounts to “regulation of” engineers or software manufacturers does not really matter so long as the power is available under s 21(2). The fact that engineers are not listed amongst the list of construction occupations does not carve out from the operation of the Act an immunity for engineers from any effect that the operation of the Act might otherwise have on them.
Counsel criticises his Honour’s comment that it is not to the point that the Act does not give power to regulate engineers, but simply by repeating his submission that “it is key to understanding s 21 that there’s no power to regulate engineers”. This, however, is the appellant’s argument, which his Honour seems to have rejected, rather than any proof of that argument.
Counsel says that his Honour’s reference to there being no immunity for engineers carved out from the operation of the Act addresses the wrong question, because the real question is the scope of the power conferred by s 21. However, it seems to me that determining the scope of the power includes identifying whether any particular matters are carved out of what might otherwise appear to be the scope of that power, and that the Master’s comment is relevant to this question.
The Master said at [44]:
The Act does not disclose an intention that certificates or advice from “professional engineers” be uncritically accepted, either by the certifier or the Registrar. There is nothing in the Act which elevates the status of such certificates or other opinions of “professional engineers” to matters which cannot be questioned. Fundamentally, the point of the Act is one which is designed to ensure that buildings are safe. That involves expertise and judgment on the part of all concerned. There is nothing in the Act to indicate that notwithstanding the fundamental public interest in ensuring the safety of buildings, the discretions of the Registrar or certifiers in relation to their functions under the Act are constrained by a requirement that they must accept any opinion or certificate of a “professional engineer” just because of its source. Given the link between inputs into the certification process, including engineering certificates, and the ultimate satisfaction by the Registrar that the Act has been complied with and a certificate of occupancy should issue, I do not think s 47 of the Act can be read as giving an entitlement to rely upon the certificate of any “professional engineer” that cannot be qualified by a condition imposed under s 21 of the COL Act. Ultimately, the material that is provided has to be sufficient to satisfy the Registrar that the requirements of the Act and the approved plans for the work have been complied with.
Counsel says that his Honour’s comment at [44] that s 47 does not give a certifier an entitlement to rely on an engineer’s certificate that cannot be qualified by a s 21 condition shows a recognition that the imposition of the proposed condition is inconsistent with s 47 of the Building Act. Further, counsel says, since s 47 is facilitative, it cannot be read as being able to be limited or overridden by a condition imposed by the registrar under separate legislation. This seems to me to be another question-begging submission. Whether the condition and s 47 are inconsistent depends on whether s 47 is read, by reference to all relevant material, as excluding or recognising any regulation under s 21 of the actions of certifiers in their dealings with engineers. I have already indicated my view that s 47 does not prevent the confining of the class of people whose certificates may be relied on by a certifier if that confining is otherwise authorised by s 21 (at [55] above). If counsel’s submission rests on any particular legal principle, counsel did not identify that principle.
Counsel agrees with his Honour’s comment at [44] that the fundamental purpose of the COL Act and the Building Act is to ensure the safety of buildings, but reiterated that it is also the fundamental purpose of the COL Act to make provisions in respect of licensees and the disciplining of licensees. Presumably, although this was not articulated, counsel means that ensuring the safety of buildings could not extend the operation of a licensing scheme whose purpose is regulating the relevant activities of licensees; to the extent that the implication of counsel’s submission is that the licensing scheme is not itself aimed at building safety, I reject it.
At [46] and [47] the Master said:
46. Similarly, if the Registrar forms the view that a particular input into the certification process, namely the advice or certificates of “professional engineers” may not be reliable the Registrar is not bound under the Act to accept that advice or certificate uncritically. Section 69 involves the Registrar being satisfied that the building work has been completed on the basis of the prescribed requirements. While forming the opinion that the preconditions for the issue of a certificate of occupancy have been met, the Registrar is not bound to accept the advice of the certifier. Further, where that advice is based on engineering advice or certificates then the Registrar is not bound to accept it for the purposes of issuing a certificate under s 69.
47. Once this point is reached, namely that for the purposes of ss 29, 48, 69 the certifier or the Registrar is not compelled to accept the opinion of a “professional engineer”, it would be going too far to suggest that ss 47 and 48 should be read as precluding conditions under s 21 of the COL Act which affect the input into certification decisions from “professional engineers”. Rather, in my view, s 21(2) should be read, consistent with the fundamental purpose of the COL Act, when read with the Building Act, of ensuring the safety of buildings, as permitting conditions relating to input into certification decisions by “professional engineers”.
Counsel agrees with his Honour’s statement at [46] that the Registrar has a capacity to refuse to accept a certifier’s advice, but says that his Honour’s conclusion that a condition could be imposed under s 21 that had the effect of qualifying s 47 was “just not correct”.
Conclusions
None of the specific criticisms of his Honour’s reasons raise any doubts in my mind:
(a)about the conclusions reached by his Honour; or
(b)about those I have separately reached by reference to counsel’s construction arguments;
being that there is nothing in the COL Act or the Building Act that requires s 21 of the COL Act to be read as excluding the imposition of a condition on a certifier’s licence relating to the use of an engineer’s certificate provided by the appellant, if the imposition of such a condition is a proper exercise of the power given by s 21 to protect the public.
Discrimination against the appellant
The appellant’s arguments
The second limb of counsel’s argument is that if s 21, properly construed, does give power to impose a condition that discriminates against a particular individual, then the provision is to that extent invalid. He says that the principle that a clear legislative intent is needed to effectively confer a discriminatory power is beyond challenge. This proposition may be correct, depending on the meaning that is given to the word “discriminatory”, but as stated does not seem to take the argument very far..
Counsel for the appellant also makes a subsidiary argument to the effect that even if the Master was correct in finding that s 21 allowed the regulation of inputs into the work of certifiers, and that the work of an engineer was simply an input, the regulation of those inputs could not be done on a discriminatory basis by naming a particular individual.
The Master at [50] and [51] dealt with the discrimination argument as put before his Honour:
50. The submission based on the decisions in Commonwealth v Progress Advertising and Ex parte Walsh and Johnson do not lead to any different conclusion from that stated above. The principles in the passages relied upon by the plaintiff can be characterised as manifestations of the principle of legality as that interpretative principle is explained recently in Attorney-General (SA) v Corporation of the City of Adelaide (2013) 87 ALJR 289 at [42], [145]-[150]. In the present case the purpose, text and structure of the COL Act and the Building Act are sufficient, in my view, to disclose a power to impose conditions which affect persons in the position of the plaintiff, notwithstanding that such an [effect] may be substantial and adverse.
51. The submission based on Haneef was one which was not developed in oral submissions to any extent. In my view, notwithstanding the merits of Justice Spender's decision, neither it, nor the passage upon which the plaintiff relied in his submissions would prevent a condition being imposed on a building surveyor if that condition is within the scope of the legislation having regard to its text, structure and purpose.
Counsel for the appellant rejects his Honour’s approach to this question, simply saying that the Master was wrong to say that the legislation discloses a power to impose conditions that effectively “discriminate”, because, counsel says, an express power to discriminate is needed for the validity of such provisions. Counsel says that even people who are regulated by the COL Act cannot be discriminated against personally under that Act, and certainly people not caught by that Act cannot be subject to such discrimination.
In support of the proposition that discriminatory legislation is to that extent invalid, counsel refers me to the following material:
(a)Gerhardy v Brown (1985) 159 CLR 70 at 128; [24], where Brennan J said:
A discriminatory law or a discriminatory act done in due obedience to the law denies the human right of equality before the law, referred to in the third preamble to the Convention. The right to equality before the law without distinction as to race is guaranteed by the States Parties to the Convention (Art.5).
(b)Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 (QEC) at 233, where Brennan J said:
Although the independence of the States in the exercise of their powers is protected by the implication, discrimination in itself is not an universal touchstone of invalidity. In the Pay-roll Tax Case, Barwick C.J. said that "the discriminating nature of a legislative provision will not itself be definitive of invalidity". And in Victoria v. The Commonwealth, Williams J. said:
" Discrimination against a State, where it can be seen to be justified, is not a ground for invalidating a Commonwealth law which would otherwise be authorised by a legislative power conferred on the Commonwealth Parliament ... in my opinion [it] could not be contended, that discrimination in itself would be sufficient to invalidate such a law." (Emphasis added.)
It would state the implication too widely to say simply that the Commonwealth is prohibited from making any discriminatory law which involves the placing on the States of special burdens or disabilities affecting the exercise of their powers. It is not consistent with the plenary nature of the powers of the Commonwealth to deny the validity of a discriminatory law enacted under a power which supports the discrimination. (citations omitted)
(c)Melbourne Corporation v Commonwealth (1947) 74 CLR 31 (Melbourne Corporation) at 61, where Latham CJ said:
But why should legislation "discriminating" in this—or any other sense—against States or Commonwealth (as the case may be) be held to be invalid? It is true that taxation laws made by the Commonwealth Parliament must not discriminate between States or parts of States—Constitution, s. 51 (ii.). But this specific provision against discrimination in the case of this class of laws emphasises the absence from the Constitution of any provision prohibiting Federal legislation "discriminating" against the States or prohibiting State legislation "discriminating" against the Commonwealth.
In my opinion the reason why such legislation is invalid is that what is called "discrimination" shows that the legislation is really legislation by the Commonwealth with respect to a State or State functions as such and not with respect to the subject in respect of which it is sought to bind the State—or, in the case of a State law specifically dealing with and seeking to control Commonwealth functions, that the State Parliament is really endeavouring to make laws with respect to the Commonwealth or Commonwealth functions as such. The Commonwealth Parliament has no power to make laws with respect to State governmental functions as such, and the State Parliaments have no power to make laws with respect to Commonwealth governmental functions as such. It is upon this ground, in my opinion, that what is called "discriminatory" legislation may properly be held to be invalid.
(d)Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 (Castlemaine Tooheys) at 478, where Gaudron and McHugh JJ said:
A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant to the object to be attained; a law is discriminatory if, although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support that distinction.
These cases do not appear to support the appellant’s submission. Gerhardy v Brown required consideration whether a law of South 0Australia restricting the right of non-Pitjantjatjara people to enter certain Pitjantjatjara lands was inconsistent with the Racial Discrimination Act 1975 (Cth). That is, it involved a specific legislative prohibition on racial discrimination, subject to certain exceptions. No specific prohibition on discrimination of any sort has been identified in the appellant’s case.
Castlemaine Tooheys arose under s 92 of The Constitution; a South Australian Act had a disproportionate impact in South Australia on a company based elsewhere but selling bottled beer in South Australia in non-refillable bottles, and the resulting “discrimination” was held to be contrary to s 92. The quoted extract from Castlemaine Tooheys simply describes discriminatory legislation – it does not specify that it is necessarily invalid.
The other two cases, QEC and Melbourne Corporation, are about discrimination against the States. Discrimination by the Commonwealth against the States also has a distinctive source and a distinctive significance; it is not a concept readily applied in cases involving individuals.
In QEC Brennan J said that “discrimination in itself is not an universal touchstone of invalidity”.
In Melbourne Corporation, the relevant legislation was found to be invalid not because it was discriminatory as such but because, as Latham CJ explained, the discriminatory nature of the legislation in question revealed it to be an attempted exercise of a specific power not possessed by the relevant legislative body (ie to legislate in respect of the functions of the other constitutionally recognised level of government).
Counsel submitted, however, that the principles found in these authorities are of general application to discrimination against individuals.
A significant problem with counsel’s argument is that the cases quoted do not say that a discriminatory law is necessarily invalid. In each case there was a specific obstacle to the legislative discrimination, whether an express provision in a Commonwealth law (Gerhardy v Brown) or in the Constitution (Castlemaine Tooheys), or an obstacle inferred from the Constitution, being an obstacle to the Commonwealth legislating:
(a)with respect to the functions of a State (Melbourne Corporation); or
(b)so as to impose a special burden or disability on the States that is not imposed on other persons (QEC).
Counsel for the appellant also relies on Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 for the proposition that:
Unless the Parliament makes unmistakeably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.
That proposition, counsel said, had been followed in Coleman v Power (2004) 220 CLR 1 at [185], where Gummow and Hayne JJ said:
Fundamental common law rights are not to be eroded or curtailed save by clear words.
Counsel also said that Maloney v The Queen (2013) HCA 28 at [63], [120], [218] and [290] had recognised a fundamental common law right not to be discriminated against as an individual. I have examined the paragraphs cited, and confess to being unable to discern in any of them support for (or even allusion to) the propositions relied on by counsel.
In argument, counsel has effectively abandoned the submission that a law passed dealing with a named individual, and a law giving a power to impose discriminatory conditions, would be discriminatory and therefore invalid. He refined his proposition to say that legislation permitting individuals to be treated unequally should display a clear intention to do so, and that legislation should not be interpreted as facilitating discrimination against individuals so as to treat them unequally unless the legislation clearly intends that result.
As the Master also noted (at [86] above), counsel seems to be alluding to the principle of legality (discussed below at [103]). I can only assume that he has avoided identifying his argument in this way because of the need, in relying on that principle, to identify a fundamental right or freedom of the appellant that was under threat.
Counsel for the appellant concedes that a provision permitting regulations to restrict what a certifier can rely on, including by preventing a certifier relying on any person who has been found by the registrar to be a danger to the public, would be a law of general application rather than a discriminatory and invalid law. He further concedes that this would be different from the current case only because there would need to be a process laid down for a finding that the person was a danger to the public.
I am inclined to agree with counsel that a formal process involving procedural fairness by which the particular grounds for discriminating against an engineer could be established would be preferable, but I note that in this case procedural fairness has been extended to the appellant and that is what has provided the basis for the current challenge. I also note, without accepting that it would necessarily address a substantive challenge to a discriminatory provision, the submission made by counsel for the respondents that procedural fairness is in any case entrenched in our current legal system (a proposition supported by the fact that procedural fairness was provided in this case despite the absence of any specific requirement to do so).
The principle of legality
The Master referred to the re-statement of the principle of legality in Attorney-General (SA) v Corporation of the City of Adelaide (2013) 87 ALJR 289 at [42] and [145]-[150], and rejected the proposition that this principle excluded the interpretation of s 21 advanced by the respondents (quoted at [86] above). The principle was explained by French CJ at [42]:
Statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common lawhttp:// - . The common law presumption against the parliamentary intention to infringe upon such rights and freedoms has been described as an aspect of a "principle of legality" which governs the relationship between parliament, the executive and the courts. The presumption is of long standing and has been restated over many years. It can be taken to be a presumption of which those who draft legislation, regulations and by-laws are aware. To apply it is to act conformably with legislative intention as explained by this Court in Lacey v Attorney-General (Qld) - . (citations omitted)
Reliance on the principle of legality requires first the identification of a fundamental right or freedom that can be said to be infringed by the legislation being construed. Counsel for the appellant did not go further than articulating a general right not to be discriminated against, but the authorities he relied on did not establish any such right.
Furthermore, the principle of legality does not prevent legislative encroachment upon fundamental common law rights and freedoms. It merely requires that the intention so to encroach be “unmistakeably clear” in the legislation concerned.
Section 21 does not in my view reveal a legislative intention to encroach on any obvious fundamental right or freedom of engineers as such. If a fundamental right or freedom of engineers (or any other relevant group) had been identified, it may be that s 21 as interpreted and applied by the respondents might have encroached on it, and might be found to have done so otherwise than in “unmistakeably clear” terms.
Further submissions
In written submissions filed by leave after the hearing, counsel for the respondent commented on the cases mentioned above in relation to the discrimination argument, which had been cited at the appeal hearing without advance notice to the respondent. Counsel also included in his submissions a copy of a paper by Dennis Pearce, ‘Principles of Legality and Human Rights: Seeking the Hymn Sheet’ (paper presented at 2013 Public Law Weekend conference, Centre for International and Public Law, ANU College of Law, 15 November 2013). A copy of those submissions, including the attached paper by Professor Pearce, appears to have been served on the appellant’s solicitors, but the appellant made no subsequent application for leave to file submissions in reply to the respondent’s filing of that paper.
Professor Pearce’s paper cited two cases in support of the identification of the ability to carry on one’s own business or trade as a right protected by the principle of legality, one being The Commonwealth and the Postmaster-General v The Progress Advertising and Press Agency Co. Proprietary Ltd (1910) 10 CLR 457, which was also raised by the appellant before the Master.
At 464 of that judgment, O’Connor J said, referring to “two well known principles of interpretation”:
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 at 425, Higgins J said:
the Legislature “must not be deemed to take away or extinguish the right” of the growers or agents to carry on the business “unless it appear, by express words, or by plain implication, that it was the intention of the Legislature to do so.
In the same case at 428, Starke J said:
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”. “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’”. (citations omitted)
In his paper, Professor Pearce noted that:
what is fundamental in one age or place may not be so regarded in another. Accordingly, what is necessary to displace the assumption may have a variable standard.
He went on to quote the High Court in Bropho v Western Australia (1990) 171 CLR 1 at 18, where Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:
If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear.
The cases identified by Professor Pearce raise the possibility that some kind of common law right to carry on or practice a trade or profession might, at least in 1925, have been able to be identified such that legislation would not be read as limiting that right without plain words or necessary implication. However, since counsel for the appellant did not pursue this particular aspect of the principle of legality before me, despite the respondent providing Professor Pearce’s paper in which those cases are listed as possibly identifying a fundamental right or freedom subject to the principle of legality, I make no further comment on them.
Conclusions
In the absence of any argument that the principle of legality excludes an interference with an identified fundamental right or freedom of the appellant in the absence of clear words in or a necessary implication from the COL Act, I make only the following general comments. A law should not lightly be interpreted as permitting unequal treatment of individuals, but a law that is clearly intended to permit such treatment is not for that reason invalid. I also consider that a law need not specify explicitly that it permits unequal treatment of individuals if the purposes, subject matter and text of the law make it clear that distinctions may need to be drawn between different individuals to give effect to those purposes. If the explicit power to impose conditions on licensed certifiers in order to protect the public properly requires in this case the use of a condition naming an individual in an occupation not licensed under the Act, then I cannot see any basis for reading down that power to exclude the use of such a condition.
I further conclude that s 21, to the extent that it does permit a condition to be imposed that refers to a named individual, may be “discriminatory” but, in the absence of any explicit or implicit prohibition on such “discrimination”, either by reference to the principle of legality or otherwise, the provision is not for that reason invalid or beyond the relevant legislative power.
The respondents’ arguments
Scope for challenging Registrar’s exercise of power
Counsel for the respondents seems to regard the fact that this proceeding has arisen out of an application for judicial review under the Administrative Decisions (Judicial Review) Act as eliminating any need to address the interpretation of s 21.
Accordingly, instead of engaging in any substantial way with the arguments about the interpretation of s 21 put on behalf of the appellant, counsel argues:
(a)that the legislation specifies in s 21(3) the limit on the Registrar’s power under s 21(3) to add conditions to the licences issued to certifiers, being that the conditions may only be imposed if the Registrar is satisfied that doing so is necessary or desirable to protect the public; and
(b)that the only challenge available to the imposition of a condition under s 21 is that it has not been imposed fairly and reasonably for that purpose.
As to the test for whether any particular condition could be imposed under s 21, counsel relies on Fawcett Properties Ltd v Buckingham County Council [1959] 2 AII ER 321 (Fawcett). In that case, the Court of Appeal (whose decision was subsequently upheld by the House of Lords (Fawcett Properties Ltd v Buckingham County Council [1961] AC 636)) summarised the background to the task of assessing the validity of a condition imposed under a limited power. The case was relied on by Walsh J (with whom the other members of the High Court agreed) in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 (Allen Commercial Constructions) at 499-501.
Fawcett involved an attempt to strike down as ultra vires a condition attached to a planning permission The condition was in the end held to be valid because the appellant had not shown that it was unreasonable, that it was unrelated to or inconsistent with the policy underlying the relevant planning proposals, or that irrelevant considerations had been taken into account or relevant considerations had not been considered in the decision to impose it.
The condition attached to the planning permission in Fawcett was that the property in question could only be occupied by “persons whose employment or latest employment is or was employment in agriculture [or certain related activities]”. Counsel for the respondents suggested some parallel with the current case, to the extent that the condition related in part to the “personality” of the occupier. I am not convinced that describing a limited class of persons who could occupy the property is relevantly comparable to describing a named individual who could not occupy the property or, in the current case, a named individual who cannot provide engineering services that can be relied on by certifiers. However, having regard to my conclusions set out at [116] above, the significance of naming an individual in a condition imposed under s 21(2) needs no further consideration.
In Fawcett, Lord Evershed MR said at 323I:
I take first the more broad and general attack by counsel for the company on the validity of the condition, viz., that in spite of the generality of the language of s. 14 (1) of the Act, “... such conditions as they think fit”, it is not open to the local planning authority to impose a condition in reference to a proposed structure related not to the manner in which the building may be used (e.g., as a residence, or as a shop, etc.) but to the class of persons who may use or occupy it. On this point I am content to adopt the conclusion and reasoning of ROXBURGH, J., who stated that acceptance of such an argument would involve reading some gloss or qualification into the language chosen by Parliament and that he could find no sufficient justification for doing so.
Lord Evershed said later, at 324E-G:
To my mind the most difficult question is whether, when regard is had, on the one hand, to the planning scheme and proposals of the council, and the reasons given by the council for the imposition of the condition in December, 1952, and, on the other hand, to the scope and effect of the condition itself according to a fair interpretation of the language, the latter ought to be treated as having been beyond the council’s powers, not being fairly and reasonably related to the former. In formulating the question, I have, as a matter of language, substituted (by reference) the words “the planning scheme and proposals of the council” for the words used by ROXBURGH, J., “the local planning requirements”. Both forms of words depart somewhat from the language of LORD DENNING in Pyx Granite Co., Ltd. v. Ministry of Housing and Local Government (1) ([1958] 1 All E.R. 625), where he spoke (ibid., at p. 633) of the requirement that the conditions should “fairly and reasonably relate to the permitted development”.
He then explained that the test to be applied was derived from the terms of the legislation concerned, and went on to quote Lord Greene in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1949] 2 All ER 680 at 682:
[34C]
“What, then, is the power of the courts? The courts can only interfere with an act of an executive authority if it be shown that the authority have contravened the law. It is for those who assert that the local authority have contravened the law to establish that proposition. On the face of it, a condition of this kind is perfectly lawful. It is not to be assumed prima facie that responsible bodies like local authorities will exceed their powers, and the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for the local authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a local authority, what purports to be an exercise of that discretion can only be challenged in the courts in a very limited class of case. It must always be remembered that the court is not a court of appeal. The law recognises certain principles on which the discretion must be exercised, but within the four corners of those principles the discretion is an absolute one and cannot be questioned in any court of law.
“What, then, are those principles? They are perfectly well understood. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found, expressly or by implication, matters to which the authority exercising the discretion ought to have regard, then, in exercising the discretion, they must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question they must disregard those matters. Expressions have been used in cases where the powers of local authorities came to be considered relating to the sort of thing that may give rise to interference by the court. Bad faith, dishonesty––those, of course, stand by themselves––unreasonableness, attention given to extraneous circumstances, disregard of public policy, and things like that have all been referred to as being mattes which are relevant for consideration.”
...
“... I think that ATKIN, J., was right in considering that the restrictions on the power of imposing conditions were nothing like so broad as the majority thought, but I am not sure that his language might not be read in rather a different sense from that which I think he must have intended. I do not find in any of the language that he used any justification for thinking that it is for the court to decide the question of reasonableness rather than the local authority. I do not read him as in any way dissenting from the view which I have ventured to express, that the task of the court is not to decide what it thinks is reasonable, but to decide whether the condition imposed by the local authority is one which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose.”
Counsel also refers me to Sir William Wade and Christopher Forsyth, Administrative Law (Oxford University Press, 9th ed, 2009) at 361-362 to the effect that a legislative power to impose conditions is not unrestricted, and in particular may not be abused by being exercised for reasons unrelated to the legislation.
I do not need to consider this material in detail, but by reference to the various authorities cited by counsel for the respondent, it seems that four questions could usefully be asked in determining whether a condition able to be imposed by the Registrar under s 21(2) was validly imposed:
(a)Is the condition fairly and reasonably related to the criterion specified in s 21(2) for the exercise of the power?
(b)In deciding to impose that condition, did the Registrar have regard to all relevant matters and only to relevant matters?
(c)In deciding to impose that condition, has the Registrar in any way abused the power concerned?
(d)Is the decision to impose the condition a decision that no reasonable Registrar acting within his or her powers could have made?
If the first two questions can be answered “yes” and the third and fourth questions answered “no”, then any challenge to the imposition of the condition must fail. In fact the last three questions may be subsumed under the first question, in that they seem to identify particular aspects of the requirement that the condition be “fairly and reasonably related” to the criteria for imposing conditions. It may nevertheless be useful to identify the various ways in which a decision maker may come to imposing a condition that is not fairly and reasonably related to the relevant criteria.
However, while this may be a useful exercise in a general sense, it does not seem to be particularly useful here. The difficulty with the respondent’s submissions is that they do not address either the ground of judicial review raised by the originating application (that the relevant legislation simply did not empower the Registrar to impose the proposed condition) or the arguments made by the appellant in support of his challenge to the Master’s construction of the legislation.
The judicial review ground raised by the appellant in this case was addressed very briefly by Lord Evershed in Fawcett, as quoted at [122] above. It was dealt with at more length in Allen Commercial Constructions; before considering whether a condition imposed on a consent to a development application was imposed in a proper exercise of the relevant authority’s discretion, Walsh J dealt at 496-499 with an argument that the relevant legislation, an Ordinance made under the Local Government Act 1919 (NSW), did not permit the imposition of such a condition at all (either on a proper construction of the Ordinance, or because if the Ordinance did purport to confer such a power, it was to that extent ultra vires).
Instead of addressing the scope of the power conferred on the Registrar under s 21, counsel for the respondent submits that the condition relating to the appellant was “fair and reasonable” having regard to the intention of the COL Act and the Building Act. He then goes on to submit that in fact, the real question is not whether the condition was fair and reasonable but whether it was a condition that “no reasonable authority acting within the four corners of their jurisdiction could have decided to impose”.
Counsel also cites In re an appeal from the Credit Tribunal by John Martin & Co. Ltd (1974) 8 SASR 237 (John Martin) as further authority for this proposition, noting that “the proper test is the unreasonableness or capriciousness” of the decision. In that case, the challenge to the decision of the Credit Tribunal had two limbs, one of which required interpretation of the enabling legislation to determine the scope of the Tribunal’s power and the other requiring a consideration of the manner in which the Tribunal had exercised the discretion conferred by that power. Two members of the Supreme Court (Bray CJ and Sangster J) rejected the challenge to the Tribunal’s exercise of its power, while Jacobs J found that the legislation concerned would not have permitted the Tribunal to exercise its discretion in the way sought by the appellant.
Fawcett, Allen Commercial Constructions and John Martin all involved, and were ultimately determined by, a consideration of the reasonableness of the administrative decision under challenge. However, this indicates only that in each case, the court did not accept the challenge to the scope or validity of the legislation that was the first limb of the argument; it does not establish that the reasonableness of the exercise of the power is the only question to be determined.
Because of the approach he takes to the nature of the judicial review task, counsel for the respondent has not responded to the arguments made by the appellant about the respondents’ lack of power under the relevant legislation to impose the proposed condition, except to the extent that he has addressed the discrimination arguments as discussed above. Nor, however, does he seek any finding that the respondents’ conduct, or their proposal, was reasonable, and I refrain from expressing any views about that matter.
Conclusions
I have found this a difficult appeal to deal with.
Counsel’s approaches
First, as already noted, counsel did not in any serious way engage with each other’s arguments.
Counsel for the appellant sought to persuade me that the Master had misinterpreted the relevant legislation, and s 21 of the COL Act in particular, by identifying aspects of the legislation which he said supported the appellant’s interpretation of the legislation, aspects of his Honour’s decision that counsel said were wrong, and authorities said to be relevant to determining the scope for legislation to discriminate among individuals without risking invalidity.
Counsel for the respondent did not respond to these submissions except by filing, with leave, written submissions about some of the authorities relied on in the discrimination argument, which authorities had apparently only been identified by counsel for the appellant at the last minute (at [107] above).
Instead, counsel for the respondents made submissions about the grounds on which specific conditions sought to be imposed by a regulatory authority could be challenged. Since he concluded by making it clear that the reasonableness of the proposed condition in this case did not need to be determined, I can only assume that the real burden of his submissions was that the unreasonableness of a decision to impose a particular condition is the only ground on which such a decision can be challenged, that the appellant’s challenge by reference to the scope of the legislation accordingly fell at the first hurdle and that therefore it did not need any substantive response from the respondents.
For my purposes, however, counsel’s submissions are effectively at cross-purposes. The respondent may have correctly identified the grounds on which the imposition of a particular condition under valid legislation can be challenged, but this does not seem to exclude, or to address, the question raised by the appellant whether the legislation concerned validly confers power to impose the particular proposed condition, however properly such a decision was made. The respondent’s approach strikes me as surprising, given that the latter question (about the interpretation of the legislation) not only arises directly under both the appellant’s originating application and the Administrative Decisions (Judicial Review) Act but also arose in the three cases relied on by the respondent to support what seems to have been an argument that only the exercise of the discretion is liable to challenge under that Act.
The question
Secondly, the question stated was in my view not framed in such a way as to enable any sensible answer to be given to it.
Quite apart from the issues identified at [126] above (which would be relevant in giving a complete answer to the question as framed), the question relies on the phrase “conditions ... that relate to the [appellant]”. This is a non-specific expression anyway, but it raises a particular problem in this case because of the way the matter has been argued before me. That is, the question does not distinguish between the different possible meanings of “relate to” that could require different answers to the question.
In particular, whether conditions could be imposed relating to the appellant individually and by name is a different question from whether conditions could be imposed that related to the appellant in that they happened to affect him along with any other members of a class described generically.
The appellant’s initial arguments to the effect that the legislation did not permit any action to be taken that could affect an engineer in any way would, if accepted, require the question to be answered “no”. However, his later arguments about individual discrimination might, if accepted, only have excluded conditions dealing with the appellant by name (or perhaps by a very specific description intended to identify only him), so might enable a qualified “yes” to the question. If those arguments are not accepted, an unqualified “yes” might seem to be available, but that “yes” would then need to be qualified by reference to the issues raised by counsel for the respondent and mentioned at [126].
For these reasons, instead of commenting on the appropriate answer to the question framed by the Master, I shall simply indicate my views on the appeal as such, and refrain from making any further orders until I have heard from counsel about whether any other orders are required.
I record only that I have not been persuaded by the appellant’s submissions:
(a) that the Master erred in the reasoning his Honour applied in determining how to answer the question stated; or
(b)that the question stated by the Master should have been answered “no”.
Orders
The appeal is therefore dismissed. I shall hear the parties as to whether and if so what further orders are required.
| I certify that the preceding one hundred and forty-six [146] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |
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