Victorian Building Authority v Andriotis
[2019] HCATrans 8
Replacement Transcript
[2019] HCATrans 008
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M134 of 2018
B e t w e e n -
VICTORIAN BUILDING AUTHORITY
Appellant
and
NICKOLAOS ANDRIOTIS
Respondent
KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 12 FEBRUARY 2019, AT 10.00 AM
Copyright in the High Court of Australia
MS K.L.WALKER, QC, Solicitor‑General for the State of Victoria: If the Court pleases, I appear with MS C.M. HARRIS, QC and MS S. GORY for the appellant. (instructed by Victorian Government Solicitor)
MS K.P.HANSCOMBE, QC: Your Honours, in these proceedings I appear with MR T.J.D. CHALKE for the respondent. (instructed by Boris Pogoriller)
KIEFEL CJ: Yes, Ms Solicitor.
MS WALKER: As your Honours would be aware, this appeal concerns the operation of the mutual recognition scheme for occupations embodied in Part 3 of the Mutual Recognition Act 1992 (Cth). It arises in the context of an application for recognition by a particular builder. But of course the Act applies to many more professions, including the legal profession, but including a range of other professions such as asbestos removalists, commercial passenger vehicle operators, electricians – I am not going to give your Honours an exhaustive list, but plainly that broader context could be relevant to an understanding of the operation of the scheme.
In essence, the Act enables a person who is registered for an occupation in one State to gain registration in another State on the basis of their original registration. The question on this appeal is whether the Commonwealth scheme requires registration of a person by the Mutual Recognition Act where that person has been found not to be of good character.
More specifically in this case, Mr Andriotis has been found to have provided false information to New South Wales in support of his registration there and to have been a party to a scheme intended to deceive the regulators. It was found that he had not dealt candidly and honestly with either New South Wales or Victoria in terms of the regulating authorities and that he lacked candour in his evidence to the AAT. Those findings, just as a short reference, are at appeal book 43 to 45, paragraphs 135 to 142.
The AAT of course did conclude that it could refuse his registration on the basis of its finding that he was not of good character and it affirmed the Building Practitioners Board decision in that regard. In the Full Court of course, the Full Court, with slightly different reasons between the joint judgment and Justice Flick but, nonetheless, each of the members of that court considered that the AAT had erred insofar as it relied upon the good character finding as a basis for refusing registration.
Your Honours will see the two grounds of appeal at page 129 of the appeal book. In essence, they raise two main topics. The first ground concerns whether the Mutual Recognition Act permits in a discretionary sense a local registration authority to refuse to register a person who is registered in another State on the basis that the person is not of good character. That first ground concerns the construction of section 20(2) of the Act, in its broader context of course, which provides that the local authority may register a person who has lodged a notice.
The second ground concerns the construction of an express exception to the mutual recognition principle, which permits the second State to apply its own laws, so long as they are not based on the attainment of some qualification or experience relating to fitness to carry on the occupation. I have slightly summarised the effect of section 17(2) there, but of course we will come to the detail of the section.
But the principal point that I want to make is that the two grounds of appeal concern two different sections of the Mutual Recognition Act and operate independently. Ultimately, the Authority submits that the Full Court erred in its construction of both of those provisions; that is, firstly, we contend that section 20(2) confers a limited discretion to refuse to register a person if the person is found to be not of good character.
But, alternatively, we submit that section 17(2) preserves or permit the operation of section 170(1)(c) of the Building Act (Vic), which is the section within the Victorian scheme that makes good character a basis for refusing registration. So, ground 2 is really that the Authority was entitled to rely on the State Act to refuse registration, that that operation of the State Act was not displaced by the Commonwealth scheme.
GAGELER J: That is based on section 17(2) – reading it as a freestanding exception?
MS WALKER: Yes, it is, your Honour. We say, your Honour, that it is – and I will come to this in some detail, but we do say it is an exception to section 17(1) that qualifies the point of initial registration of a person in an occupation and that there is an analogous exception in subsection (4) of section 20 which qualifies the continuing registration. So, we say that the scheme recognises the exception, both at the point of initial registration and at the point of continuing registration.
EDELMAN J: The two grounds need not be entirely independent. If you are right about ground 2 then that could be one reason why “may” is construed as discretionary in the limited sense in which you have described it.
MS WALKER: That is another possible way to understand the interaction of section 17(2) and section 20(2), yes, your Honour, although our principal argument is that if section 17(2) is engaged then the State Act applies as a State Act and one does not need to rely on the discretion in the Mutual Recognition Act, but I accept that your Honour has put to me another way of reading the discretion in section 20(2).
Now, your Honours, out of an abundance of caution, the appellant served section 78B notices really because we say the case is one that concerns ‑ at least in relation to ground 2, the exception to the mutual recognition principle – the way in which the Commonwealth scheme has indicated the extent of its inconsistency with the State scheme; that is, the Commonwealth scheme overrides any State laws to the extent that it applies, but it has set out in section 17(2) an exception which we say effectively is an indication that a State law can continue to apply to a person’s registration notwithstanding the Mutual Recognition Act.
We do not think anything particularly turns upon the constitutional point, but we did think it appropriate to file the section 78B notices really just to make clear the basis on which we say this Mutual Recognition Act scheme operates.
We note also that that understanding of the way the scheme is to operate is reflected in the explanatory memorandum to the Mutual Recognition Act, which is at tab 24 of the bundle of authorities. We say that the scheme was enacted with a view to the Mutual Recognition Act engaging the operation of section 109 of the Constitution so as to display some, but not all, state laws.
If I can perhaps turn now to the oral outline, and can I first turn to the statutory schemes. I want to commence with the Building Act, the Victorian Act. Can I indicate to the Court that we have provided a replacement bundle for tab 4 of the bundle of authorities because we thought, with hindsight, that we were a little too economical with the number of provisions that we included in the joint bundle. What your Honours now have is some greater context and, in particular, the whole of Part 11, which is the part of the Building Act that regulates the registration of builders.
As your Honours might well appreciate, the Building Act is the principal regime governing the registration and regulation of builders in Victoria, and in the ordinary course it is this Act that would apply to a person seeking registration as a builder.
Can I mention briefly also the question of the correct version of the Building Act. Your Honours would have seen in our written outline that the relevant provisions of the Building Act have been amended, really through the course of the proceedings, dating back to the time of the AAT proceedings. There was a version in force at the time that the Building Practitioners Board made its decision. That version was also in force when the AAT held its hearing. But by the time the AAT came to make its decision, the relevant section, 170(1), had been amended.
The parties are agreed that the correct version, for the purposes of this appeal, is version 104. That is the version that was in place at the time that Mr Andriotis made his application, and also at the time that the board refused to register him on 30 November 2015. That, your Honours, is the version that was contained at tab 4, and now has been replaced by the material that I have handed up.
If I can then take your Honours to the Building Act in that form, version 104, we have now provided the contents of the table of provisions, simply to indicate the range of matters that the Act deals with. I do not need to dwell on those, but can I ask your Honours to perhaps start with section 1, which identifies the main purposes of the Act, relevantly, for present purposes:
to regulate building work and building standards –
and then subparagraph (d):
to regulate building practitioners and plumbers ‑
Then, your Honours will come to the definition section and your Honours will see that:
Authority means the Victorian Building Authority established under section 193 –
This is on page 3 of the Act and:
Building Practitioners Board means the Building Practitioners Board under Part 11 –
Can I again pause to note that since the decision‑making process that occurred in relation to Mr Andriotis, both at first instance and in the AAT, the Building Practitioners Board has been abolished and replaced by, effectively, the Victorian Building Authority and, hence, the Authority is the appellant in this matter and all decisions of the board are taken now to be decisions of the Authority.
My apologies, your Honours, there is one key definition that unfortunately has been omitted from this bundle and I will have to ask your Honours to go to the bundle that was filed. I do apologise for this, your Honours, and that is the definition of “occupation” which – my apologies, your Honour ‑ ‑ ‑
GORDON J: I think you are in the wrong Act.
MS WALKER: I am in the wrong Act. I am just getting ahead of myself. I am trying to go to the MRA. If your Honours can come to section 4 of the Building Act, your Honours will see the objectives of the Act are to protect, in paragraph (a):
the safety and health of people who use buildings and places of public entertainment;
…..
(d)to facilitate the adoption and efficient application of –
(i)national building standards ‑
Now, your Honours will then come to Part 11 and Part 11 is a comprehensive part dealing with registration of building practitioners. Your Honours will see, first, section 169 dealing with an application for registration. So, a person can apply to the board, given the version we are dealing with, “to be registered as a building practitioner”. The application must comply with subsection (2). In particular, we note, it must be by reason of subparagraph (ca):
be accompanied by the prescribed information relating to the character of the applicant; and
(cb)be accompanied by an authorisation . . . for the conduct of a police record check on the applicant; and
(d)be accompanied by the appropriate fee . . .
(e)if, under Part 9 the applicant is required to be covered by insurance, include proof that –
(i)the applicant is covered by the required insurance; or
(ii)to the extent that a builder is engaged in domestic building work, the applicant is eligible to be covered by the required insurance.
GAGELER J: Did Mr Andriotis’ application comply with section 169?
MS WALKER: No, it did not entirely.
GAGELER J: So, how does section 170 get to apply to him, just as a matter of Victorian law?
MS WALKER: The reason it did not comply with 169 is that he did not provide the prescribed information relating to character and then, I suppose in that context, having the – the board then wrote to him and said please provide certain information in relation to character, which was prescribed, including the provision of references and it then decided that he was not of good character. Now, your Honour might perhaps have quite rightly indicated that the board might have had a different basis for ‑ ‑ ‑
GAGELER J: Well, can I just go back a step. He made an application that was purportedly under section 20 of the Mutual Recognition Act, I think.
MS WALKER: If one jumps ahead, section 20 requires the lodging of a notice. Technically, the MRA does not provide for an application. It provides for the lodging of a notice, but, yes.
GAGELER J: Well, all I am asking is did the application that he purportedly made under section 20 constitute an application for the purpose of section 169 of the Building Act, in your submission?
MS WALKER: It took the form of an application within the context – within the terms of section 169 in the sense that the application form itself that the board provided to an applicant at that time, in a sense that the documents combined the MRA provisions and the section 169 provisions.
GORDON J: Is that right? I just thought ‑ I misunderstood that he had applied only under section 20 by filling out the form under section 19.
MS WALKER: Well, your Honours, if I can perhaps – I do not know if the original material is before the Court, but the material that he filled out – the forms that he filled out went beyond the matters set out in section 19 of the Mutual Recognition Act and addressed, in addition, the matters required to be addressed under section 169.
Now, perhaps I could jump ahead a little and explain the way in which we say the Mutual Recognition Act scheme works. The Mutual Recognition Act, and perhaps it would be convenient to start with the Mutual Recognition Act ‑ ‑ ‑
GAGELER J: Ms Solicitor, why I was asking is that I just do not for the moment understand how section 170(1)(c) applies as a matter of Victorian law where a person makes an application under section 20 – or makes an application under section 19 of the Commonwealth Act. I just cannot see it.
MS WALKER: Yes, I understand your Honour’s point. I wonder if I might turn to the Mutual Recognition Act and I will perhaps need to come back to the Building Act. My intention had been to show how the Building Act would work if there was no Mutual Recognition Act, but perhaps that is clear enough and the fundamental question is well how does it work when there is a Mutual Recognition Act.
The Mutual Recognition Act, in a sense, provides an alternative pathway to registration. Your Honours will find the Mutual Recognition Act at tab 3 of the bundle. Can I perhaps just briefly defer your Honour’s question until we get to the relevant sections? Just to point out, the principal purpose of the Act is set out in section 3. We do say it is significant that it is the principal purpose, not the sole purpose, which is:
the purpose of promoting the goal of freedom of movement of goods and service providers in a national market ‑
This is where the definition of “occupation” will become relevant. Your Honours will see that at page 14 of the bundle, and I will come back to the text of “occupation” when I address the operation of section 17(2). Can I also indicate, and this perhaps will feed into your Honour’s question, that section 6(2) provides:
This Act does not limit the operation of a law of a State so far as it can operate concurrently with this Act.
Of course that will beg the question: what laws can operate concurrently? We say that will be linked to the argument around section 17(2). Then we come to Part 3 of the Mutual Recognition Act, dealing with occupations. Your Honours will see that section 16(1) says:
The mutual recognition principle as applying to occupations is as set out in this Part.
The part deals with the ability of a person registered in connection with an occupation in a State to carry on an equivalent occupation in another State; we then understand the terminology of “first State” and “second State”. We then come to section 17(1):
The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a)to be registered in the second State for the equivalent occupation; and
(b)pending such registration, to carry on the equivalent occupation in the second State.
Section 17(1), as I indicated earlier, does not deal with what happens once you are registered. How does your registration continue and how might it interact with a State law; that is dealt with in section 20. But what it does indicate is that there is an – entitled after a notification to be registered and:
pending such registration, to carry on the equivalent occupation ‑
which does indicate that there is some positive step to be undertaken by the second State’s authorities. It is not an automatic entitlement that continues simply by the giving of notice. That will also be manifest when I come to section 20.
GAGELER J: Does section 17(1) impose any obligation or confer any right?
MS WALKER: Section 17(1), in my submission, articulates the mutual recognition principle. The concrete manifestation of the entitlement to which 17(1) refers, we would say, is found in section 20(1). That section really provides the mechanics for the operation of the entitlement referred to in section 17(1), because section 17(1) does not deal with what kind of notification you have to give, nor does it deal with the ability of the second State authority to take the steps of registration and so forth.
So, yes, in a sense, your Honour, but the mechanics of the operation of that entitlement are found elsewhere, particularly in section 20, looking back to the notice given under section 19. Then your Honours will see subsection (2):
However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws:
(a)apply equally to all persons . . .
(b)are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
That subsection of course is central to ground 2 of the appeal. In fact I am going to deal with ground 2 first, and it raises a number of questions, and really the questions perhaps do go in part to the question your Honour is asking me: how does this interact with the Victorian scheme? Our submission is that the mutual recognition principle does leave the Victorian scheme, sections 169 and 170, to operate except insofar as they are based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
EDELMAN J: Is that just really to say anything more, though, than if that construction is correct that there is a discretion under section 20(2) to refuse registration due to the operation of the Victorian provisions that relate to character?
MS WALKER: Your Honour, our principal submission is that this in fact qualifies the entitlement so that the State law is operating as a State law and refusal can occur under the State law. That is because of the way in which the exception is framed, that the mutual recognition principle which we have just seen set out in subsection (1) does not affect the operation of laws – and it must mean State laws or Territory laws – that regulate the manner of carrying on an occupation in the second State, so long as those law meet the then criteria in subparagraphs (a) and (b). So our principal submission is that what section 17(2) is leave intact certain State laws, so long as they meet the description in section 17(2), and it leaves those laws to operate; that is, it allows a regulator to apply a State law as a State law.
GAGELER J: You apply section 170(1) as a State law, and it is very difficult to get to a refusal of an application made under section 19 of the Commonwealth Act. My difficulty is at the level of just seeing how the State law engages with the making of an application under section 19. I am sorry to keep coming back to it, but at some stage I think you need to grapple with that.
MS WALKER: We really say textually, your Honour, if the State law fits within section 17(2), then it operates as a State law because that is what subsection (2) says, that:
the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation -
et cetera. Our contention is that not the whole of section 170(1) but at least the good‑character aspect of that section is such a law and it in conjunction with section 169 fit within the exception and therefore can be applied as State laws.
But, as an alternative, it would be apposite to understand the exception as informing the scope of the discretion under section 20(2). But our principal submission is very much based on the text of section 17(2) - allows for the operation of State laws.
KIEFEL CJ: Just looking at the text, though, the words:
that regulate the manner of carrying on an occupation –
is that really addressed to an entitlement or is it simply to preserve the regulation within the State of how an occupation is carried out once entitlement is determined?
MS WALKER: In our submission, your Honour, it is directed to the former. Now, that really, I suppose, is something that we say flows from the text of section 17 in the first instance. So section 17(1) confers the entitlement to be registered and only pending registration to carry on the occupation and then it is immediately followed by the qualification. So we say that when one looks at the placement of section 17(2), immediately qualifying section 17(1), that textually it should be understood as qualifying the initial entitlement to registration.
GORDON J: I must say when I read 17(1) and 17(2) – 17(1) does not contain – confer an obligation or right. It sets out, in a sense, the scheme, that there would be an entitlement to registration to be registered in a second State. Is not subsection (2) preserving the fact that once you are registered in accordance with this scheme then you are going to be subject to the State laws and if you misbehave the second State can come along and say, notwithstanding you have registration through this scheme, which is streamlined, you are subject to us and we are going to reprimand you and look after you and determine how you are going to behave? Does it do any more than that? That sits then with the way in which sections 19 and 20 are structured. What 20(4) does is it reinforces the very fact that once you have registration your registration is not to be assumed to be continuing absent application of the second State law.
MS WALKER: Can I make perhaps two responses to what your Honour has put to me? The first is to draw your Honour’s attention to section 17(2)(a), which is one of the criteria a law must have in order to fit within the exception and that is the law must apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State. Now, we do place some emphasis on the words “or seeking to carry on”.
KIEFEL CJ: Is that to match it with “pending such registration”, though?
MS WALKER: In my submission, no, your Honour. It is to capture the moment of registration. A person who lodges their notice is at that point seeking to carry on and in my submission that indicates that subsection (2) qualifies both aspects of subsection (1), that is, it clearly contemplates a person who has not yet commenced carrying on the occupation because that is captured by “all persons carrying on”. Those additional words, in my submission, must be given some work to do and what they capture is a person who is not yet carrying on but is seeking to carry on the occupation.
So that is my first answer to your Honour. My second answer is perhaps to put it this way. The text of section 17, 17(1) in particular, deals with registration and activities pending registration. I may be repeating myself, and if I am I apologise, but that is what 17(1) deals with. It deals with that early phase, and in dealing with that early phase it is qualified by the exception.
Section 20(3) deals with what happens once you are registered. Your registration continues. And then subsection (4) effectively applies the exception to the continuance of the registration. Now, it is necessary to place the exception there again because continuance of registration is not dealt with in section 17(1) and therefore the exception in section 17(2) would not qualify the entitlement to continue post registration, because that is not dealt with in section 17(1).
In my submission, the scheme evidences this concern first with registration and what you might do pending registration and then subjects that to an exception. Then later in section 20(3), it deals with continuing registration and again subjects that to materially the same kind of exception. Subsections (3) and (4) are not at all duplicative of anything in section 17.
One can see a scheme that expressly addresses registration and what you can do before registration with an exception, and then later expressly addresses the continuation of your registration and adds an exception. We say that is the appropriate way to understand the way the scheme operates.
BELL J: But how does that address the issue that the Chief Justice raised with you, accepting that under section 17, under the principle pending registration, the exceptions apply but do not bear on the entitlement?
MS WALKER: In my submission, your Honour, that is not the appropriate way to read section 17(2)(a) and its reference to seeking to carry on, because the ability to carry on an occupation pending registration, deals with people who are carrying on an occupation, and that is the first part of subsection (2)(a). The person who wishes to be registered and lodges a notice is the person who is seeking to carry on the occupation. Until they do that, they have no entitlement either to registration or to carry on. So, in my submission, the words “seeking to carry on” are significant and they deal with a person who is not yet carrying on the occupation but wishes to do so, and they enable the State law to operate in relation to the registration of that person.
KIEFEL CJ: Section 17, though, putting the words “entitlement” to one side, is concerned to state the principle which governs the operation of the whole of the Act and the exception to that principle. Section 20 is the provision which really gives the entitlement to carry out the occupation. Registration is necessary and it is the one that provides the entitlement, not only to ‑ on notification and then deals with continuation of registration as subject always to the regulation of the State.
Sections 17(2) and 24 are just simply consistent with each other, are they not? Section 17(2) is stating a qualification to the principle and section 24 says how that will play out in practical terms following registration. But it is 24. It is section 20 which creates the actual entitlement to carry on the occupation.
MS WALKER: Certainly, that is how the joint judgment approached the relationship between section 20(4) and section 17(2). Now, we contend that is an error. We contend the scheme is better understood as 17(2) qualifying registration and ‑ ‑ ‑
KIEFEL CJ: But on your construction you have two provisions, 17(2) and 20(4), directed to the same subject matter.
MS WALKER: No, your Honour. On our construction, they are directed to different subject matter.
KIEFEL CJ: I see. Yes, 17(2) on your construction has to do with entitlement rather than what occurs after registration.
MS WALKER: That is right, your Honour, and so ‑ ‑ ‑
KIEFEL CJ: Which means that you are using a section, section 17, which is concerned to determine the ambit of the mutual recognition principle in order to qualify section 20 entitlement. Is that not what you are doing?
MS WALKER: Yes, that is correct, that is correct, your Honour, we are. The question of where one finds the mutual recognition principle is a slightly tricky one in the sense that if your Honours go back to section 16(1), your Honours will see that proposition that:
The mutual recognition principle as applying to occupations is as set out in this Part ‑
which suggests that it is the whole of the part that operates as the mutual recognition principle. Then, of course, your Honour quite rightly points out that section 17(1), in a sense, states the mutual recognition principle but there says “subject to this Part” and so it is a little elusive to articulate precisely where one finds the mutual recognition principle other than to say it does appear to be the whole of the part.
We say that does sit comfortably with our proposition that, coming back to your Honour’s point about duplication, section 17(2) is not simply a duplication of or section 20(4) is not simply a duplication of section 17(2), both have work to do, they do separate work because 20(4) is concerned only with continuance of registration whereas 17(2) qualifies either the whole of the mutual recognition principle which we say includes initial registration or, more specifically, qualifies what one finds in section 17(1) which is the entitlement to registration.
So, in my submission, one of the errors the court below made, at least, the joint judgment because, I think, Justice Flick approached it somewhat differently, was to simply say, well, 17(2) does not really do any work, it only bites through the operation of section 20(4). We say that textually that really does not work particularly given the reference to seeking to carry on the occupation in section 17(2)(a).
GORDON J: If you are right, what role does section 20(1) have to play, if at all?
MS WALKER: What it does is indicate the mechanics of the notification.
GORDON J: Is that right?
MS WALKER: Yes, because, your Honour, it says:
A person who lodges a notice under section 19 –
Now, there is no reference to section 19 in 17(1), so it then indicates, well, what kind of notification will generate the entitlement? It is a notification under section 19 and I have not taken your Honours to that yet but that is the mechanics, if you like, the extra.
GORDON J: What is interesting are the last words of section 20(1).
MS WALKER: Yes, your Honour. In fact, I think perhaps what your Honour has reminded to deal with is the text of section 20(1):
entitled to be registered . . . as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration -
followed, of course, by the power to grant registration. That perhaps ties in with your Honour Justice Gageler’s question about the interaction between these two schemes. Section 20(1) effectively offers a person a ground of entitlement to registration under the law of the second State because it is as if the law of the second State expressly made provision for registration in the first State to be a ground of registration in the second State.
Now, we say that is another textual indication that what is applying is the registration scheme in the first State, but it is as if it had in it this additional entitlement. But what it does not deal with is disentitling circumstances.
EDELMAN J: But why would one not read section 20(1) as effectively an instantiation of everything that is said in section 17(1) and 17(2)? So the entitlement that it is speaking about is referring back to 17(1) and 17(2) and the reason why one would then need to repeat all of the words in 17(2) and 20(4) is because 17(1) is referring to the entitlement, 20(4) is then referring to the continuance on exactly the same terms.
MS WALKER: Yes, your Honour, and really that is the way we say the scheme works. So we do say ‑ ‑ ‑
EDELMAN J: But that would not be to give 17 direct operation. That would say that the operation of 17 is picked up through section 20(1) and section 20(2), which give the concrete application to that principle.
MS WALKER: Yes. I mean, I suppose I have put it as the mechanical provisions that manifest the entitlement, but I am content with the way your Honour has put it to me. So long as it is understood that the way we put it is 17(2) qualifies 20(1) and, indeed, 20(2).
KIEFEL CJ: But to say that is simply to say that it is qualifying a principle; it is not qualifying the actual application of section 20, which it has been put to you is really what gives rise to the rights, registration.
MS WALKER: Our submission is it does ‑ ‑ ‑
KIEFEL CJ: The scheme of the Act hinges on registration.
MS WALKER: It does, your Honour. That is absolutely right. We say that 17(2) – and there is probably a limit to how many ways I can say this.
KIEFEL CJ: Yes, I understand.
MS WALKER: But we do say 17(2) qualifies the entitlement referred to in section 17(1) and also the entitlement referred to in section 20(1), particularly because the language of 17(2) would otherwise do no work. If the only operation of the 17(2) exception was to be found in section 20(4), then those words “seeking to carry on the occupation” would be otiose.
EDELMAN J: It is not really qualifying it, though, in your submission. It is almost like a dictionary telling you what the entitlement is.
MS WALKER: Yes, it can be understood in that way, I think, of articulating the scope of the entitlement, and we say again, coming back to the section 109 point, expressly articulating the extent to which some State laws are permitted to continue to operate.
KIEFEL CJ: Putting it another way, if section 17(2) was not provided, there would arguably be a question as to the extent to which the principle stated in 17(1) was inconsistent with ‑ the extent to which section 20(4) was inconsistent with the principle as stated. It has to be qualified for section 20(4) to work, or not to be inconsistent.
MS WALKER: Well, not necessarily, your Honour, because section 17(1) does not deal with continuing registration. That work is done by section 20(3).
KIEFEL CJ: Quite so, but my point is, without section 17(2), which could be read to refer to the manner of carrying on an occupation once registered, that allows section 20(4) to be consistent with the statement of principle. You have to qualify the principle to allow section 20(4) to operate.
MS WALKER: I am not entirely sure one has to, but I would accept that the two are consistent. One, I suppose, is at that point imagining a differently drafted Act, but ‑ ‑ ‑
EDELMAN J: If section 20(1) and (2) operated without a section 17 reading, or qualification, as you express it, then one would have a situation where you would be obliged to recognise, but in the same letter where you respond to the recognition on that broad construction you could then say, “Well, we have recognised you but we have immediately applied section 20(4) and you’re not allowed to continue to be recognised.”
MS WALKER: That is right, your Honour, and that was the solution in a sense to the problem that these kinds of schemes give rise to. That was the solution to the problem offered by I think all members of the Full Court: “Yes, you might be required to register a person, but you can immediately commence disciplinary proceedings against them.” We say that is an artificial and very inefficient way to pursue the legislative objective. If it is open to do that, then there would seem to be no reason why it is not simply open to refuse a person registration, so long as the State law under which you are refusing their registration is one that applies equally to all and is not:
based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
We say that it is quite consistent with the mutual recognition principle and the way in which the Act has been drafted for that exception to operate both at the point of registration and later on any assessment of continuing registration, because of course a person might be quite properly registered and then a year later undertake some conduct which gives rise to some sort of disciplinary proceeding, and that would be some scope for subsection (4) to operate in those circumstances.
But the way in which your Honour has put it to me is really the way in which the Full Court considered the problem of registering. Being required to register a person who is demonstrably not of good character, the solution was said to be, well, the authority could immediately take steps of a disciplinary kind in relation to that person, and we say that that really reveals the artificiality of requiring a person to register, and we say of course textually the scheme envisages that there will not be a requirement to register in relation to persons, in particular in this context, persons who are not of good character where good character is a basis for refusal under the State law.
Now, we do say that a law of that kind, even applying at the point of registration, does regulate the manner in which an occupation is to be carried on because what it is regulating, albeit at the point of deciding whether to authorise you to carry on in the occupation, it is directed to the manner in which the occupation may be performed in the sense that a good character requirement is designed to ensure that a person will carry out their occupation in a professionally appropriate manner.
It is not imposed just as a matter of preference, because it would be nice if builders were people of good, moral standing; it is imposed because it is considered that it is relevant to the manner in which they will carry out their occupation as a builder.
So we say, assuming that I have persuaded your Honours that 17(2) can do some work here and can enable a local registration authority to apply some State laws at the point of registration, we then say that the good character requirement found in section 170 of the Building Act (Vic) is a law of that kind that can be applied as a basis for refusal, even though it might appear that a person has an entitlement under sections 17 and 20, perhaps, of the Mutual Recognition Act.
Now, it is necessary of course, then, to demonstrate that the relevant Victorian law, namely, section 170(1)(c), which imposes the good character requirement, read with subsection (2), which authorises the Authority to refuse registration if it is not satisfied of the matters in subsection (1) – it is necessary to demonstrate that that legislation fits within the exception because plainly if it did not fit within the exception the Authority could not validly have applied it. We say, firstly – and I have touched on this already – that a good character requirement is directed to regulating the manner in which a profession or occupation is carrying on.
The qualities of good character or honesty and integrity are, we say, matters that do regulate the manner of carrying out the profession both of initial and enduring significance and of course, commonly, a reason for removing a person’s registration and specifically in the Building Act a reason for removing a person’s registration is that they are not a fit and proper person, which is analogous to but perhaps broader than a character requirement.
Now, we also would say that there is no real dispute that the relevant provisions of the Building Act apply equally to all persons carrying on or seeking to carry on, so all persons who apply to the Victorian Building Authority to carry on the occupation of builder are subject to the good character requirement. We do not think that is in dispute, but then of course we need to address subparagraph (b) is this kind of law a good character requirement based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
In that regard we contend that good character is not a qualification as that term is used in section 17(2)(b). Relatedly, I will just flag, we will say that the same applies, and indeed must apply, to the same language when used in section 20(4)(b), bearing in mind, of course, that that section deals with the continuing registration. If a person being a fit and proper person was a qualification relating to fitness to carry on the occupation, then the disciplinary provision that one finds in section 179 of the Building Act could not be applied to someone whose registration had occurred and was continuing.
I am jumping ahead a little but I did want to flag that immediately as a reminder that, when we are asking the question about what “qualification” means in section 17(2), it is used again in the same colocation, with the same language, basically, in section 20(4). We say the answer to what is a qualification must be the same for section 20(4) as it is for section 17(2).
NETTLE J: Is that because he ceases to be a fit and proper person under 179 - is “no longer a fit and proper person”?
MS WALKER: That was the form ‑ and I come to another version issue, your Honour ‑ of the Act until quite recently.
NETTLE J: But at relevant times.
MS WALKER: It does depend on what your Honour means by “relevant times”, so at the time ‑ ‑ ‑
NETTLE J: The time of application.
MS WALKER: At the time of application there was a “fit and proper person” requirement relating to his conduct as a building practitioner. That was the 2015 version. In 2016 it was changed. The entire disciplinary provision, section 179, was replaced and it became “is no longer a fit and proper person”. In September 2018, the Act was further amended so that section 179(1)(g), now just says “is not a fit and proper person”.
Of course it is section 179(1)(g) that would apply if this matter were to go back – if the Authority was unsuccessful and all it has available to it are disciplinary matters because Mr Andriotis was entitled to be registered, then it would have to apply the present version of section 179, “not a fit and proper person”. We would say that is not a qualification that would be effectively precluded from operation by section 20(4).
NETTLE J: I must say you have lost me.
MS WALKER: I am sorry.
NETTLE J: I had understood your proposition to be that fitness and propriety should not be regarded as a qualification relating to fitness to carry on ‑ ‑ –
MS WALKER: That is right, your Honour.
NETTLE J: ‑ ‑ ‑ having regard to the contents of section 179 of the Building Act inter alia.
MS WALKER: Inter alia, yes. Thank you, your Honour. Yes, that is precisely ‑ ‑ ‑
NETTLE J: And what I took 179 of the Building Act to say is that if a builder ceases to be a fit and proper person he may be disciplined, which assumes ex hypothesi that he was registered upon the basis that he was a fit and proper person.
MS WALKER: That is what the Act previously said, your Honour, unfortunately ‑ ‑ ‑
NETTLE J: Does the change in legislation after that affect the validity of that proposition?
MS WALKER: I do not think it does, your Honour. From our perspective, we say that a fit and proper person requirement, and dealing in the first instance with disciplinary matters, is not a law based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation under section 20(4).
Because it is not a law of that kind, continuance of registration is subject to that disciplinary section, and we would say the change in language does not affect that because the inquiry is nonetheless into whether a person is fit and proper, either because they were never fit and proper or because they are no longer fit and proper. We say that does not really substantially alter the proposition that that “fit and proper” ground in whichever form it is found is not a law based on the attainment or possession of a qualification. We say by parity of reasoning a law directed at character which, we say, is of the same quality as a law directed at “fit and proper” is also not a law based on the attainment or possession of some qualification, and that requires some attention to what “qualification” might mean.
Now, of course, it is context dependent and, in fact, the authorities suggest that the term “qualification” can have a variety of meanings. It could encompass only a formal educational qualification. It could encompass a formal educational qualification, some sort of certificate gained by passing a test, even perhaps a driver’s licence, for example, which is gained after passing a driving test. It could encompass membership of a recognised professional body. In some circumstances, could encompass practical skill and experience.
Now, in its broadest meaning, it could mean literally anything that is required for a person to be registered. That would be a thing that qualifies them for the occupation. But, we say the text, context and purpose of the language of section 17(2) requires that the term “qualification” be understood to have a narrower meaning than that very, very broad meaning.
Now, at this point, can I ask your Honours to go back to the definition of “occupation” in section 4 of the Mutual Recognition Act and your Honours will see there that it is – this is not a definition of “qualification”. The term “qualification” is not defined in the Mutual Recognition Act, contrast the Building Act where it, in fact, is defined as meaning a “formal education or qualification” et cetera, but not defined in the Mutual Recognition Act but the word “qualification” is used within a definition, a definition of “occupation” and it is used to identify the kinds of occupations to which the Mutual Recognition Act applies, which are those occupations:
that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper) -
So, plainly, the word “qualification” is being used in that definition in its broadest sense. Now, of course, we would also accept that as a general proposition cognate expressions in a statute should be given the same meaning unless the context requires otherwise but we contend that the text and context do require otherwise in this case. In fact, we say that textually when one pays close regard to the contrast between the definition of “occupation” and the use of the term “qualification” there and the text of section 17(2) that it really cannot have the same meaning and that is because if I can then address ‑ ask your Honours to go back to section 17(2)(b), what is being addressed in that subsection is a law:
based on the attainment or possession of some qualification or experience -
In the definition of “occupation”, experience was given as an example of a qualification. But in 17(2)(b) “experience” is used as something different from “qualification”. So, in my submission, it is plain that “qualification or experience”, that that language means that “qualification” does not have the same meaning that it has in the definition of “occupation”, because it would be duplicative to then add “or experience”. One could have simply said “qualification”.
Now, we also say, your Honours, that that reasoning is consistent with a decision of this Court in R v Refshauge which is in the bundle of authorities, volume 2 at tab 18. This was a decision concerning section 29D(1) of the National Health Act (Cth) which your Honours will see is set out at page 415 of the bundle or page 473 of the report. That section says:
The Director‑General may refer to a Specialist Recognition Advisory Committee the question whether a particular medical practitioner should, having regard to his qualifications, experience and standing in the medical profession and the nature of his practice, be recognized for the purposes of this Act as a specialist, or as a consultant physician, in a particular speciality.
So your Honours will see there the references to “qualifications, experience and standing”. Your Honours will see the nature of the argument at the bottom – the final paragraph on page 416 of the bundle or page 474 of the report:
The contention . . . is that the Advisory Committee and the Appeal Committee misconstrued the word “qualifications” in s 29D(1), in that they wrongly understood it to be confined to “academic qualifications”.
You can see then the reference to:
formal qualifications, in the nature of a degree, diploma, fellowship, or membership, granted by some recognized body.
Without detaining your Honours too long in the detail of the case, your Honours will see commencing around line 30 on page 417 of the bundle or 475 of the report:
If the word “qualifications” means personal qualities or accomplishments, a consideration of the qualifications of a particular medical practitioner would include consideration not only of his skill and completence but also of his experience, because experience may in itself constitute a qualification in the wider sense of the word.
I pause to say that is plainly how the definition of “occupation” regarded the term “qualification”. But then his Honour Justice Gibbs goes on to say:
If the word “qualifications” were used in its wider sense, the express reference to “experience” in the subsection would be unnecessary and the reference to some of the other matters mentioned might also be unnecessary. That in itself indicates that “qualifications” is used in the narrower, but natural, sense of academic qualifications.
We say, your Honour, that that reasoning applies equally to the language of section 17(2)(b), that the juxtaposition there of “qualification or experience” indicates that “qualification” is not used in its broadest sense; it is used in a narrower sense, and we say to refer to not necessarily academic qualifications, but some kind of qualification following completion of an examination, for example. Now, depending on the particular context it might include, to the extent when medical practitioners were still regulated through this scheme, it might have included membership of the Royal College of a particular speciality, for example. We do accept that it does not require necessarily that a person have completed some sort of degree, but that it does require attention to a qualification issued by a body following an examination, and most likely following a course of study.
We say the Full Court erred in the way it understood the term “qualification,” because it understood “qualification” in the broader sense, and the textual matters were overlooked by it. We also say that the court perhaps placed inappropriate emphasis on what it said was the “natural and ordinary meaning” of the term “qualification” because really, the term “qualification”, in a sense, there is no particular starting point one has to address it in the context of the text. As Justice Gibbs said in Refshauge, the natural meaning of “qualification” is in fact an educational qualification.
GAGELER J: Are you going to say anything about the statutory purpose, how your construction fits the statutory purpose?
MS WALKER: Yes, I am, your Honour. In fact, that is precisely what I was about to come to. We also do contend that the court below erred in relation to the way in which their Honours approached the statutory purpose. Can I immediately go back to the point that I made when I drew your Honour’s attention to the purpose of the MRA and that is to say that it is not the sole purpose, as a matter of text.
The purpose set out in section 3 of promoting the free movement of, relevantly, “service providers in a national market” is the principal purpose of the Act. That must follow from the qualification of the word “purpose” by the use of the word “principal” so one can accept it is the main purpose. The joint judgment, in fact, when quoting the purpose, omitted the qualifier “principal” and then proceeded as if this was the sole purpose of the scheme.
BELL J: How does that subtlety assist your argument?
MS WALKER: Can I come at that in a slightly long‑winded way, your Honour, by starting with the observation made by Chief Justice Gleeson in Carr v Western Australia (2007) 232 CLR 138. I am not going to take your Honours to it but the particular passage is at 142 to 143:
Legislation rarely pursues a single purpose at all costs.
I am sure your Honours are all familiar with the proposition. I am still quoting:
the general purpose of legislation of the kind here in issue is reasonably clear; but it reflects a political compromise . . . The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object?
In terms of how far does the legislation go in pursuit of its purpose or object, we say the text is the surest guide. What we then say is the text makes plain that the principal purpose of achieving free movement is not achieved at all costs and in particular it is not achieved by displacing all State laws that regulate the manner in which people carry on their profession, including of course at a time when they are seeking to carry on but are not yet carrying on the profession.
So what we say is that 17(2) reveals that or reinforces the proposition that the Mutual Recognition Act does not exclude the capacity of the States to impose their own requirements for registration. It restricts that capacity; it does not exclude it. The joint judgment below did use the language of restriction at paragraph 120. So the question is the extent of the restriction on the States or, to put it slightly differently, the scope of the capacity to regulate that is undoubtedly left.
We say that it is consistent with the principal purpose to see the scheme as directed at ensuring that educational qualifications or qualifications following the sitting of an examination, for example, and relevant experience that are recognised in one State will be equally sufficient for each other State. But it is also consistent with that for the scheme to allow a State authority to decline to register a person who is not of good character.
GAGELER J: Ms Solicitor, the difficulty with that submission is that it overlooks a lot of history. You go back to the 50s, 60s and 70s and look at the section 92 cases in this Court you will see numerous cases – Boyd v Carah Coaches is one, Hughes & Vale (No 2) is another – where you have State licensing regimes with these vague expressions like “fit and proper person”, “good character” being used by local registration authorities to keep out the interstate competition. That is the history against which this legislation comes into being. You need to take that into account, I think, when you are looking at the purpose of promoting freedom of movement of service providers in a national market, which is the statutory purpose here.
MS WALKER: I certainly accept what your Honour puts to me in that the history is indeed relevant. The extrinsic materials refer to or record a concern about artificial barriers. They reflect a concern with differing regulatory schemes and they reflect a concern with inefficiency of the process for a service provider to move between States at the time and of course I accept that that reform process that produced the MRA occurred in light of the history of matters between States, as your Honour has referred to.
But, in my submission, the proposition that the mutual recognition scheme would require a State to register a person who has been found demonstrably to not be of good character ought not be accepted. But the scheme does intend to promote the free movement of service providers and, in particular, what it intends to ensure is that if you have a certificate that justifies you being a waterproofer in New South Wales then, even if Victoria might not have considered that certificate to be sufficient, you can say, “Well, I’m registered in New South Wales and I will come to Victoria and I can be registered in Victoria”, but what we do say is that, notwithstanding the history, the text of the scheme expressly recognises that there is to be left for a State some capacity to regulate registration.
EDELMAN J: What do you say about the statement in the second reading speech at page 2433 that:
Local registration authorities will be required to accept the judgment of their interstate counterparts of a person’s educational qualifications, experience, character or fitness to practise.
MS WALKER: About that, your Honour, we say two things. Firstly, we note that that was relied upon by the joint judgment below supporting the approach that the joint judgment took. We say, firstly, that one thing is quite notable about that list of matters and that is that it is quite different from the text of section 17(2).
GORDON J: It takes into account 19(2)(h), does it not, and that is this that part of the process of applying for registration is that you give consent to the second State making the very necessary inquiries about the activities in the first State, so there is this exchange of information. So, although the list is not, in fact, completely matched it recognises the way in which the scheme is to work, that is, you rely upon the judgment of them but at the same time you are entitled to make inquiries and raise things with the first State that may give rise to questions about whether or not the first State might take steps.
MS WALKER: Yes, your Honour, it would facilitate that but we would say that the scheme does not indicate that the only State that can take steps in relation to a person who is not of good character or who has obtained their first State registration by false statement, as occurred here, we would say it is not the case that the only State that can take any steps in relation to that person is the first State because the first State may have no particular interest or resources to pursue disciplinary proceedings in relation to that person or otherwise cancel their registration, particularly if the person is not practising in the first State as, again, is the case in this particular context.
So, yes, of course, your Honour is right it does – section 19(2)(h) does facilitate that process and it is available but we say that does not mean that the option for the second State having obtained information from the first State that suggests there is a problem to then refuse registration, it does not follow from the power to engage in that form of information gathering that the second State has no power to act having found the troubling information from the first State. The second State does not have to rely upon the regulatory authorities of the first State to take action.
Again, we say, that would lead to considerable problems in the operation of the scheme because there may simply be circumstances where the first State, for whatever reason, does not take action in relation to a person who is demonstrably not of good character.
Can I come back to the second reading speech for a moment? The other point we would make about the second reading speech is that it does appear that the concepts of “educational qualifications, experience, character, or fitness to practice” were regarded as separate matters. We say, indeed, that is so, that a qualification is not the same as character.
Now, of course, the reference there to “qualifications” is specifically educational qualifications, but we say that actually is indeed what was meant by “qualification” in section 17(2) and in section 20(4). Again, going back to section 20(4), we would say for the purpose of ongoing registration and disciplinary processes, it must be right that a person’s character and fitness to practise can be relied on as a disciplinary – a ground for disciplinary action. Yet, if character and fitness to practise is a qualification, then 20(4) would appear to preclude the second State from relying on those matters as a basis for taking disciplinary action.
So to be consistent – to give 20(4) a sensible meaning to allow disciplinary action for qualification or not a fit and proper – sorry, for character or not a fit and proper person, to give that operation to section 20(4), means you really must give the same meaning to “qualification” in section 17(2).
KIEFEL CJ: That might be a convenient time for the Court to take its break.
AT 11.20 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.36 AM:
KIEFEL CJ: Yes, Ms Solicitor.
MS WALKER: Can I just correct an answer that I gave to Justice Gageler, or perhaps clarify. Your Honour asked me whether the application made by Mr Andriotis complied with section 169. It complied with the requirements in section 169(1) which set out a range of matters that have to be dealt with in the application. Subsequently, pursuant to section 169(3) the board wrote to Mr Andriotis seeking further information and it was at that point that Mr Andriotis did not provide the further information that was sought by the board. So it was in that way that the application did not comply with section 169 rather than a failure to deal with the listed matters in section 169(1).
Can I also, perhaps remaining with section 169 of the Building Act, and can I ask your Honours to go to it, give a different example of the work, we say, that section 17(2) will do in the context of an initial application for registration or lodgement of a notice under the Mutual Recognition Act, and that is the requirement in section 169(2)(e)(i) that an applicant for registration under the Victorian Building Act prove that they are covered by insurance if they are required to have insurance under Part 9.
Under section 170(1)(a) of the VBA the Authority is to consider whether it is satisfied the person has complied with section 169, and that would include the proof of insurance requirement. If not satisfied of proof of insurance, the Authority may refuse registration by reason of section 170(2).
We say that insurance requirement will operate by virtue of section 17(2) of the Mutual Recognition Act because, we say, proof of insurance, that requirement, is a law concerning the manner in which an occupation is carried on; that is, that the occupation is carried on by a person who is insured and not one directed to qualifications or experience in the relevant sense, even though it might fall within the broadest understanding of “qualification”. We would say a person who does not demonstrate that they have the requisite insurance does not have some absolute entitlement to registration under section 17(1) or section 20(1) of the Mutual Recognition Act. This is a basis on which registration could be refused to a person who is uninsured.
Now, we say, turning back to the Mutual Recognition Act, this is consistent with the way the Mutual Recognition Act deals with persons operating under deemed registration. I have not managed to take your Honours to those provisions in any detail yet, but your Honours will find them at page 26 of the bundle in tab 3. Division 3 of Part 3 deals with interim arrangements and provides for deemed registration of a person who lodges a notice but before the local authority has taken the step of granting or refusing registration.
So your Honours will see the concept of “deemed registration” in section 25. The duration of the deemed registration is found in section 26 and you will see in subsection (2) that the:
deemed registration in the second State ceases if the person becomes substantively registered –
and in subsection (3):
ceases if the local registration authority of the State refuses to grant registration –
and there are some other bases for cessation. Then your Honours will see section 27 which deals with activities under deemed registration. So, firstly, in subsection (1):
A person who has deemed registration in the second State may carry on the occupation in the second State as if the deemed registration were substantive registration –
However, they may do so only subject to various matters. Subsection (3):
Without limiting anything in this Division:
(a)the person may not carry on the occupation in the second State without complying with any requirements regarding insurance . . . and the like that are designed to protect the public, clients, customers or others –
Now, that section plainly allows the application of an insurance requirement to a person who is deemed to be registered. There is nothing in the Mutual Recognition Act that expressly deals with insurance in relation to a person at the point of registration or after registration. But we say that what section 17 ‑ ‑ ‑
GORDON J: Unless section 20(4) picks it up.
MS WALKER: Section 20(4) would deal with the continuance ‑ ‑ ‑
GORDON J: That would be from the point one second after registration.
MS WALKER: That is right, your Honour, but we would say that 17(2) will pick up an insurance requirement at the point of applying for registration so that if a person does not have the insurance they are able to be refused by reason of the exception to the mutual recognition principle, bearing in mind that if they do not have the insurance at the time they file their notice they would not be able to carry on the occupation pursuant to the deemed registration. That would be the effect of section 27(3), but perhaps they do not need to or want to carry on the occupation during that deemed period. But plainly the Act identifies a concern with requirements that are designed to protect the public, clients, customers or others, and it goes back perhaps to your Honour Justice ‑ ‑ ‑
GORDON J: Is that necessary – sorry, one more question.
MS WALKER: That is all right, your Honour.
GORDON J: Is that right in relation to section 20(5) where the second State could impose a condition that says you are entitled to registration but you have to get insurance?
MS WALKER: That would also, I suppose, be a possible condition.
GORDON J: That is what 20(5) is directed at, is it not?
MS WALKER: Well, 20(5) is ‑ ‑ ‑
GORDON J: One of the things it is directed at.
MS WALKER: ‑ ‑ ‑ directed to a number of things. It is certainly directed to a power to impose conditions on registration. But again we say the scheme does not envisage that the things you can do after registration of that kind preclude simply refusing on the basis that a person is not insured, particularly given that that is a uniform requirement for any builder who seeks to be registered to practise as a builder in Victoria, that that person has insurance.
Section 27 reveals - coming back to your Honour Justice Gageler’s question about the purpose of the Act, section 27(3) reveals that the Act is not unconcerned with protection of the public clients and customers of persons. In other words, it does not pursue the objective, the principal purpose of free movement of services between the States at all cost, and we say this is a textual indication of the Act retaining a concern about laws that are directed to the protection of the public, and so forth.
It makes special provision for deemed registration because that of course is at a time before the local authority has had an opportunity to consider whether a person is to be registered or perhaps whether there are, as your Honour Justice Gordon put to me, to be conditions imposed on the person’s registration.
But we say it would be odd that, although a person may not carry on the occupation in the second State without complying with an insurance requirement, they could nonetheless be required to be registered without having the proof of insurance. That, in my submission, would be a possible but strained and somewhat odd way to read the scheme.
KIEFEL CJ: Ms Solicitor, I think you are yet to deal with the discretion argument.
MS WALKER: Your Honour is quite correct, and I am coming to that in just a moment, because I did want to perhaps just advert to the email that we received from the Court in relation to the trans‑Tasman scheme.
KIEFEL CJ: Does that bear upon the construction that the Court should follow here?
MS WALKER: In my submission, in a sense, yes, but in another sense, no, and can I explain the dual answer. Yes, it does bear upon the construction in the sense that the schemes are materially the same in many sections, and I apologise, I have not considered whether absolutely every section is identical, but many sections are identical. In particular, the sections with which we are concerned are identical, and so the construction of the Mutual Recognition Act will necessarily inform the construction of the trans‑Tasman scheme.
KIEFEL CJ: Does the international dimension add anything to the purposes or the approach one takes to the Mutual Recognition Act, the Commonwealth Act?
MS WALKER: It appears from the extrinsic materials that the trans‑Tasman scheme was intended really to, in effect, apply to New Zealand the same scheme that had been adopted in relation to free movement of services simply within Australia. Now, one might say, well at the international level one lacks perhaps the same constitutional concerns that your Honour Justice Gageler put to me, but I do not think we could seek to say that the later enactment of the trans‑Tasman scheme impacts on the way in which one is to understand the operation of the Mutual Recognition Act.
But broadly speaking, we would say that the construction of the two schemes ought to be the same because of the substantial identicality of the provisions, and we do not seek to make anything of the fact that an international player, if you like, another country rather than a State or Territory, has been brought into the scheme.
The schemes are I think intended to operate in the same way, which is why I said in a sense the answer to your Honour’s question is no, because there simply is not any material difference that one could point to to say, well, something means this in the Mutual Recognition Act, but it means something different in the Trans‑Tasman Act, and I do not think I could place any weight on the fact that an international aspect has been adopted in the trans‑Tasman context.
Now, that does bring me to ground 1 which of course concerns the discretion under the Mutual Recognition Act, and this arises if your Honours consider that section 170(1)(c) of the Building Act did not apply as a State law. We then say that, nonetheless, the Authority had a discretion under the Commonwealth Act to refuse to register Mr Andriotis as a builder on the basis of the factual findings that it made. This ground principally concerns the power to register a person that is found in section 20(2) of the Mutual Recognition Act.
We have already touched of course on some aspects of the scheme but can I focus, perhaps, with some greater precision on the way in which section 20 operates. Firstly, of course, we say that the terms of the text of section 20(2) use the language “may grant”:
The local registration authority may grant registration on that ground –
being the ground referred to in section 20(1) and:
may grant renewals of such registration.
The language of “may” is repeated in section 21(3). Section 21 deals with the action that the Authority must take following the lodgement of the notice and effectively registration must be granted within one month after the notice is lodged – that is in subsection (1). Subsection (3) says:
However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration.
So, again, we have “may” take two steps: postponing or refusing. Again, in section 22, which deals with postponement, one sees some identified bases for postponing the grant of registration. Firstly, if any of the statements or information in the section 19 notice are materially false or misleading. Secondly, if any document or information required has not been provided or is materially false or misleading and (c) the circumstances have materially changed since the date of the notice or the Authority decides the occupation is not an equivalent occupation.
Notably, and going back, your Honour Justice Gordon reminded me of section 19(2)(h), which is the provision providing for consent:
to the making of inquiries of, and the exchange of information with, the authorities of any State regarding the person’s activities in the relevant occupation –
Justice Flick in the court below held that section 22 permits postponement where the Authority, in effect, is still awaiting material or is still in the process of its decision‑making processes following the inquiries that can be made under section 19(2)(h). That, of course, makes perfect sense, but what it also indicates, if it be right, is that the grounds for postponement set out in section 22 are not exhaustive. But it would be odd if a State said, “Before we decide whether to register, we shall make inquiries of the first State.”
We do that perhaps quite expeditiously within a week, but five weeks later we still have not heard from the first State; they have not got back to us about the activities of this person. Surely, it is open in those circumstances to the Authority to postpone its decision about grant or refusal, even though waiting for information from the first State is not expressed as a ground for postponement. That was what was held below and, we say, quite rightly so, that the matters set out in section 21(1) are not exhaustive statements of the bases on which a decision to postpone may be taken. We also point in section 22(2):
If the grant of registration has been postponed, the local registration authority may in due course grant or refuse the registration.
Again, “may refuse” are the words that we would emphasise. We see then what one might say is a hard time limit of six months. Then one comes to section 23 “Refusal of registration” and one sees a considerable parallel between section 23(1) and section 22(1). The grounds there set out for refusal include that:
the statements or information in the notice as required by section 19 are materially false or misleading –
like 22(1)(a) ‑
any document or information as required by subsection 19(3) has not been provided or is materially false or misleading‑
like 22(1)(b). There is no equivalent of 22(1)(c) but ‑ ‑ ‑
GORDON J: It is picked up by 19(1) too, is it not, though? It is a precursor to having an equivalent occupation.
MS WALKER: Section 23(1)(c), your Honour? Yes, that is right.
GORDON J: They are really section 19 requirements rather than 22 requirements.
MS WALKER: What we say, though, is that the requirements in 22(1)(a) and (1)(b) for postponement are the same as the requirements in 23(1)(a) and (1)(b) for refusal. There is also 22(1)(d) about equivalence and 23(1)(c) about equivalence. So one sees a great deal of similarity between the two sections. They each say the local authority may do something if certain matters occur. What I have put to your Honours is that 22(1) is not properly to be regarded as an exhaustive statement of when the Authority may postpone a decision about registration because it may be waiting for information under section 19(2)(h).
We also say that section 23(1) is not an exhaustive statement of the bases on which refusal may occur. We note that textually it does not say that it is an exhaustive statement of the grounds of refusal; it continues with the use of the term “may”. Ultimately, we say that the scheme of the Act, and in particular going back to section 22, the drafter’s choice to use the term “may” is an indication that the Authority retains a residual discretion to refuse registration.
Now, principally we have put that as a discretion that is confined by reference to the scheme which does, as we have said, demonstrate a focus on a number of things. One is the accuracy of information that is provided to regulatory authorities. The other, through section 27, is protection of the public that may well be necessary. The third would be the exception to the mutual recognition principle in section 17(2) which, as your Honour Justice Edelman put to me, can inform the scope of the discretion that we say can be found in section 20(2).
So that, we say, is the appropriate way to understand the use of the term – the language, really, to be a little broader, the language in section 20(2), “the authority may grant registration”. That is intended to reflect a discretion. We have referred in our written submissions also to section 33(2A) of the Acts Interpretation Act 1901 (Cth), which of course provides that where “may” is used, a discretion is intended to be conferred.
In Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285, at page 304, Justice Gaudron described this as an “absolute rule of construction”. The extrinsic materials to the Bill that introduced section 33(2A) into the Acts Interpretation Act - and I might take your Honours to this - it is in volume 2 of the bundle of authorities at tab 25. But the commentary in the explanatory memorandum is quite telling. It is page 550 of the bundle, and the third full paragraph records:
There is a rule of interpretation that “may” means “shall” in some circumstances. Accordingly, out of caution, it has become customary to follow the word “may” with the words “at (his) discretion”. This is cumbersome, particularly when expressed in non‑sexist language. Parliamentary Counsel never draft “may” as meaning “shall”. It is proposed to define “may” as always importing a discretion. However, in the interests of caution, proposed new s. 33(2A) will only apply to Acts assented to after the amendment is made.
The Mutual Recognition Act was assented to after the amendment was made. So we say that in light of that, the choice by Parliamentary Counsel to use “may” is significant. We also accept that the Acts Interpretation Act does allow for the expression of a contrary intention, but we say that there is no contrary intention revealed in this Act and, indeed, what one sees is that other parts of the legislation use the mandatory term “must”.
So, in section 21(1), to which I have already taken the Court to, it provides registration must be granted within one month, although that ultimately is qualified.
Section 24, there is an obligation to notify. The local registration authority must notify. There are other sections that also use the word “must” in relation to a local registration authority. I will not take your Honours through all of them but I will just mention them: sections 31(4) and (5), section 34(3) and section 37.
So, what one sees is a contrasting use of the terms “may” and “must” and a direction in the Acts Interpretation Act that “may” is intended to import a discretion. Other parts of the Act we would say use “may” in contexts where it would properly be understood to confer a discretion, for example, section 20(5) that your Honour Justice Gordon mentioned to me about “may impose conditions”.
We say also that in understanding the scope of the discretion conferred by section 20(2), other sections of the Mutual Recognition Act indicate that matters other than those identified in the section 19 notice may be relevant to the exercise of the local registration authority’s power to register. Again, we do place some emphasis on section 19(2)(h), which enables:
the making of inquiries of, and the exchange of information with, the authorities of any State.
Those inquiries are not limited to the matters the subject of the section 19 notice, but extend to the person’s activities in the relevant occupation or occupations. We do note that that language was given some significance by Justice de Jersey in Re Petroulias in which his Honour observed that the section assumes the relevance of matters which may fall outside the strict confines of section 19(2) and the earlier subparagraphs of section 19(2).
So, one would have to say, well, what is the purpose of enabling those inquiries to be made if there is no discretion to refuse registration upon receipt of information which, whilst not negating the truth of the propositions in section 19(2) that the person has attested to by statutory declaration, nonetheless calls into question the appropriateness of that person to be registered for the occupation in the second State.
BELL J: Among other things, the requirement of 19(2)(h) presumably assists the local registration authority in determining, relevantly for the purposes of postponement or refusal, whether material in the section 19 notice is materially false or misleading.
MS WALKER: It would enable that potentially, yes, but we would say it is broader than – it is certainly articulated in language that is broader than the matters that are set out in the preceding subparagraphs. If the purpose was to obtain information to assist in evaluating whether the section 19 notice was false or misleading in a material way, one might have expected that that would be the language of the provision permitting the gathering of information.
But it is regarding the person’s activities in the relevant occupation or occupations or otherwise regarding matters relevant to the notice, and we say the latter of course is matters relevant to the notice. The former, the person’s activities in the relevant occupation or occupations, is considerably broader because it might include, for example, conduct of the applicant which has not yet triggered any kind of disciplinary proceedings under section 19(2)(d), or that are referred to in section 19(2)(d). So, section 19(2)(d) requires the applicant to state that they are:
not the subject of disciplinary proceedings in any State (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations –
But it is of course possible that the person has engaged in conduct which might trigger that kind of disciplinary action, but if no disciplinary action has been started the person is quite able truthfully to state that they are not the subject of these kinds of disciplinary proceedings.
NETTLE J: But if the registration authority got word of it, presumably it would postpone the registration under 22, awaiting what happened in the State of registration.
MS WALKER: That is one option, that it could choose to do that.
NETTLE J: That is what it is for, is it not? It waits and sees what the home State does about it. If all turns out well then it will grant registration. If it goes badly for the applicant, it will refuse it.
MS WALKER: In my submission, your Honour, it is possible of course that, bearing in mind the second State only has six months, that the first State might not have completed its process within that six months.
NETTLE J: I suppose in that case the State would refuse registration and take its chance on appeal.
MS WALKER: Indeed, and we would say that it is quite open to the second State to refuse registration. It is firstly not required to await the outcome of whether the first State decides to do something or not. But secondly, even if it were required to await that outcome, that outcome may not happen in the timeframe that this Act mandates and if it does not have an outcome then it could choose to refuse.
GORDON J: The Act assumes that it will be complied with. If the Act has decided that there is sufficient consultation with the relevant States, it will be sufficient time to enable the operation to work. That is how the scheme is set up, is it not?
MS WALKER: The scheme, in my submission, your Honour, in relation to the timeframe is set up to ensure that a decision is made principally within one month, but with the allowance of a postponement and then with a hard deadline of six months to ensure that a person has finality. But what that does not say is the nature of the decision you have to make. It may or may not be enough time for the first State to provide information, go through disciplinary processes, the first State might decide, “Well, the practitioner is no longer practising in our State. We’re not that concerned. We’re not going to take any steps”.
In my submission, the scheme does not require that the second State, having been told by the first State, “Well, yes, this person did do something that’s really not very desirable, but we’re not taking any disciplinary action”, for whatever reason, that the second State must ignore the information it has obtained under section 19(2)(h) and must register the person notwithstanding that it has reached the conclusion that the person is not of good character.
On the good character point, can I just go back for a moment to something your Honour Justice Gageler put to me about a concern that, historically, States were using what your Honour described as “vague requirements” as barriers, artificial barriers, to movement of perhaps goods and people. One of the features of this scheme, again, that I have not yet really managed to draw your Honours’ attention to, is that under the MRA merits review of a decision by a local State registration authority will occur in the AAT, so you do have a federal overlay in terms of supervision of State application of requirements such as good character.
That is what happened here. There was, of course, an appeal to the AAT, and the AAT reached its views about the lack of good character of the applicant. That overlay of a Commonwealth decision‑making body, in my submission, will go a significant way to ensuring that there is not a use of this kind of requirement as a device to deny registration.
In addition, of course, the States did sign up to this scheme and it should not be assumed that requirements of good character or fit and proper person type requirements would be used by States as artificial barriers to practice between States. What they are used for is as mechanisms to ensure protection of the community. But if there is any thought that a State might be adopting an inappropriate approach to the good character requirement, for example, that will be dealt with by the fact that the AAT will engage in merits review and from there, of course, the Federal Court, on appeal. So there is a protection against the kind of problem that your Honour identified earlier.
I have probably, I suspect, dealt with the purpose of the Act sufficiently in my submissions on ground 2, but again we say that, when understanding the scope of the discretion we say is found in section 20(2), the principal purpose of the Act is indeed the principal purpose, but the Act does reveal concerns with other matters which would be relevant to understanding the scope or limit on the discretion we say is conferred by section 20(2).
We do not say, your Honours, that it is a discretion that is at large. We say it is a discretion informed by features of the scheme, including section 17(2) itself, which evidences a concern to admit the operation of certain State laws and those State laws can inform the discretion, as your Honour Justice Edelman put to me.
We say it is informed also by the plain concern with accuracy of information and we say that would extend not only to the accuracy of the information in the section 19 notice but the accuracy of the information the person gave to the first State when they sought registration and obtained registration in the first State.
That is particularly relevant here because it was possible for Mr Andriotis to say, “Yes, I am registered in New South Wales,” quite truthfully. Depending on how wide one understands the term “misleading” to be, it is not misleading of him to say, “I am registered in New South Wales as a waterproofer,” but the AAT found that in the document that he filed with the New South Wales Registration Authority he had given false, incorrect information about the nature of the qualification that he held.
We would say that if the second State becomes aware of a matter of that kind it is entitled in its discretion under section 20(2) to refuse his registration. To some extent the parties perhaps have moved a little closer together in terms of the ability of a second State authority to refuse registration to a person registered in the first State in the sense that, in his written submissions, Mr Andriotis accepts that the concept of what is misleading is quite broad and can encompass, for example, the fact that a person has engaged in conduct that has the potential to attract disciplinary sanctions in the first State, even though section 19(2)(d) has been literally complied with because no actual disciplinary processes have been commenced.
So it may be that the parties are not as far apart as we thought, although in our written submissions we have raised some questions about the way in which the respondent’s approach to section 23 operates. But fundamentally we say one way or the other, if the second State obtains information ‑ and howsoever it obtains that information, whether it is from the applicant themselves or from the other State – but obtains information that the applicant has, for example, provided false information to the first State in support of their application for registration or engaged in conduct that would have the potential to attract disciplinary proceedings, either in the first State or the second State, then the discretion to refuse can be exercised.
Ultimately, we say the way in which Mr Andriotis has approached the operation of section 23(1) – and I am now at, I am sure your Honours will be delighted to know, at point 11 on my oral outline – effectively, as we understand Mr Andriotis’ written submissions, he says if a person lodges a literally true section 19 notice relevantly stating that they are not the subject of any disciplinary action but in fact they have engaged in conduct that has the potential to attract disciplinary sanctions, then their section 19 notice is misleading and the power to refuse registration under section 23(1) is engaged.
We put to your Honours a different pathway to refuse registration because we have said actually there is a discretion in section 20(2), but if your Honours are against me on that and one does have to fall within one of the subparagraphs in section 23(1), then we would say that adopting Mr Andriotis’ own construction, although his section 19 notice was literally true, the AAT found that he was not of good character, that he had provided incorrect information to the New South Wales authority and that he was party to a scheme intended to deceive the regulators.
Each of those matters had and has the potential to attract disciplinary action in New South Wales and we have referred in our written submissions to relevant provisions of the Home Building Act which include in section 43(1) the power to cancel an authority if the authority was issued because of a misrepresentation, whether fraudulent or not and we say well, here there was a misrepresentation as to the nature of his qualifications.
We also point to section 56 of the Home Building Act which permits the secretary to take disciplinary action against the holder of a contractor licence on various grounds, including that the person is not a fit and proper person to hold the licence, that they are guilty of improper conduct or that the licence was improperly obtained.
We say that the findings made by the AAT are such that he had conducted himself in a manner that has the potential to attract disciplinary sanction in New South Wales. Those facts were unchallenged on appeal and the joint judgment made some remarks about the serious nature of the factual findings that were made. So we say well, if the only power that the AAT had to refuse registration had to be found in section 23(1) based on the proposition that the section 19 notice was materially misleading, we would say the AAT had that power ‑ ‑ ‑
KIEFEL CJ: Ms Solicitor, the notice of appeal, ground 1, does not really refer to section 23(1). It directs attention to the discretion under section 20(2), which might lead one to believe that it was premised on the fact that 23(1) might be engaged but where we say section 20(2) is the area for argument in this appeal.
MS WALKER: I certainly understand the point your Honour is putting to me. The reason, I suppose, that it has come up in the way it has come up and it was not part of the notice of appeal is that the construction that Mr Andriotis has advanced for the scheme, including what we would say is a broad understanding of when a notice is misleading, came for the first time in the written submissions filed in this Court. This was not the way the matter was put below. So really it is, I suppose, an answer to the construction advanced by the respondent to say even on your own construction which you have now advanced in this Court the AAT decision would have been correct given the factual findings.
KIEFEL CJ: You mean on the premise that if the discretion is constrained to section 23(1) all of the findings are there?
MS WALKER: That is right, your Honour.
KIEFEL CJ: And the conclusion follows.
MS WALKER: That is right, your Honour. I probably cannot take it any further. I do wish to expressly note that there was a notice of contention in the Full Court that did raise section 23(1) but because section 23(1) had not been addressed in this way by Mr Andriotis in the lower courts this particular argument was not addressed by the notice of contention.
So the notice of contention effectively has been remitted back to the AAT by the Full Federal Court. But what we would say is if your Honours accept my learned friend’s approach to the scheme and, in particular, the approach to section 23(1)(a) then, on the facts as found, there is a legal basis for the AAT’s decision. It simply misidentified the basis for its power to refuse, but it had the power to refuse and that of course is the Eastman point that we have identified to the Court.
KIEFEL CJ: Do you need to vary the orders of the Full Court, then?
MS WALKER: We would, I think.
KIEFEL CJ: Because the orders are, did you say, remit to be heard and decided again according to law?
MS WALKER: Yes. But if we are successful, your Honour, we would seek to have both orders 1 and 2 set aside.
GAGELER J: So you want a new ground of appeal? And you need special leave.
MS WALKER: Your Honour might be right about that. As I say, he did come up very late in terms of the way in which the scheme has been addressed by Mr Andriotis in his written submissions. But, yes, I would have to accept we would need a new ground of appeal.
EDELMAN J: Effectively an alternative argument that you are trying to adopt, based upon the respondent’s submissions.
MS WALKER: Yes. We do not urge it upon the Court. So in that sense, we have said our principal argument is that the discretion is found in section 20(2), and that is our ground of appeal. But what we have said is if your Honours were to accept the way in which Mr Andriotis says the scheme should operate, nonetheless the orders should remain. Your Honour Justice Gageler may well be right in those circumstances; perhaps we need a new ground of appeal.
NETTLE J: But you face the difficulty, do you not, that neither the authority nor the AAT has yet exercised the discretion reposed in section 23? We cannot.
MS WALKER: We would say that the discretion has been exercised, albeit without reference to the correct source of power.
NETTLE J: The discretion has been exercised under a different provision, a different discretion.
MS WALKER: That, I suppose, is the question: is it sufficiently different? But the discretion to refuse has plainly been exercised, or a refusal has occurred. In fact, the AAT, I think, thought that it was doing so under section 170 of the Building Act. In the Full Court ‑ ‑ ‑
NETTLE J: All I will say is that a discretion to refuse registration on the basis that a man is not a fit and proper person and a discretion to refuse on the ground that he has told lies, whilst related, are two different things.
MS WALKER: Yes, they are two different things, although plainly, of course, the facts that would establish one might be precisely the same as the
facts that would establish the other. Really, I suppose, that is our point here: if this discretion is only to be found in section 23(1), but would encompass a materially misleading section 19 notice in circumstances of the kind that I have been discussing, we would say the factual findings have been made that would suffice to allow that discretion to operate, and that if a source of power to do an act exists, but the repository was mistaken as to the source of the power, the decision is nonetheless valid.
KIEFEL CJ: Ms Solicitor, would you like to consider your position over the luncheon adjournment? If you need an application for special leave with a formulated ground, perhaps we could hear from you after lunch.
MS WALKER: Thank you, your Honour, I appreciate that.
KIEFEL CJ: In the meantime we will proceed with the – if you have nothing else to add, other than this ground – unformulated ground, we might hear from the respondent but not in relation to this area for the moment.
MS WALKER: Thank you, your Honour.
KIEFEL CJ: Thank you. Yes, Ms Hanscombe.
MS HANSCOMBE: If your Honours please. Your Honours, although the learned Chief Justice said a moment ago that the Court did not seek to hear from us on this latter point ‑ ‑ ‑
KIEFEL CJ: If you could proceed upon the other arguments just for the meantime until we could come back to this after lunch.
MS HANSCOMBE: I just wondered – I am happy to do that, of course, your Honours, I wondered if I might be able to short circuit the whole thing because it seems to us it has arisen from a misunderstanding of one sentence in our written submissions, but as the Court pleases.
KIEFEL CJ: That might be timely for you to indicate that so that Ms Solicitor can consider this in relation to the course that the appellant wishes to take. So, yes, please, we will hear from you in relation to that.
MS HANSCOMBE: I thought that might assist. I think that the misapprehension, and it is always very unhappy, is it not, for a barrister to stand up and say to a court it looks like I have written something ambiguous which has confused my opponent.
KIEFEL CJ: We are used to hearing it.
MS HANSCOMBE: I regret that, if your Honour please. I think this arises from our paragraph 35 in our written submission where we were analysing the decision in Re Petroulias and, in particular, where we were analysing, I thought unambiguously, Justice of Appeal Davies’ consideration of the facts in that case. In Petroulias, and it might be convenient to go to the text of the relevant two paragraphs in Petroulias - Petroulias is at tab 20 of the bundle and the relevant paragraphs are 55 and 56 which are at 456 of the bundle.
GORDON J: What page number of the report is that, please?
MS HANSCOMBE: Of the report, is 656.
GORDON J: Thank you.
MS HANSCOMBE: Where his Honour said:
In this case the statement required in the notice by s. 19(2)(d) was materially false for the reasons stated by the Chief Justice.
Mr Petroulias, you will recall, was an applicant for admission to legal practice who had been prosecuted for activities when he worked at the Tax Office, not as a legal practitioner. Those facts had not been disclosed to the Queensland Registrar who was exercising the power to admit a practitioner to legal practice. So, they were the facts stated in the reasons of the Chief Justice:
A statement in the terms of s. 19(2)(d) would, in my opinion, be materially misleading, within the meaning of s. 22(1)(a), if, notwithstanding that it was literally true, the person knew of matters affecting him which, if they were known by the registration authority in the first State, would have been the subject of disciplinary proceedings against him in that State or of preliminary investigations or action that might lead to such disciplinary proceedings.
I emphasise those latter words which come directly from the statute because it seems that our analysis of this and the next paragraph:
Moreover if, after the date of the notice or the date on which it was lodged, some such disciplinary proceedings or preliminary investigation or action that might lead to disciplinary proceedings commenced against the applicant in the first State or if, after the date of the notice or the date on which it was lodged, circumstances arose which, had they arisen before the date of notice or lodgement would have resulted in a misleading statement . . . in either case this would be a material change of circumstances -
Now, it seems to us – and this is the only thing I want to clarify for the benefit of the Court and my learned friend – that our analysis of that passage at paragraph 35 of our written submissions has been taken that an applicant under the Mutual Recognition Act when he makes his section 19(2) declaration has to engage in some internal act of introspection about all the things he has ever done in his life, and that is not what the section says. The section is directed to external events in the external world. The section says the declaration must:
state that the person is not the subject of disciplinary proceedings in any State –
not just the first State; any State:
(including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations –
That is not an invitation to introspection, “What have I ever done in my life that somebody might take disciplinary proceedings about?” That is a statement “I do not know of any action on foot at the moment, however preliminary it may be, that might lead to disciplinary proceedings”.
KIEFEL CJ: Yes. Do I understand you to say then, Ms Hanscombe, that it was not intended by the written submissions to suggest that this Court should undertake some fact‑finding exercise and seek to undertake the task which has been remitted to the Tribunal?
MS HANSCOMBE: No, certainly not. You will see in our three‑page oral outline we have attempted to correct the misapprehension that we sadly gave rise to. That is all I wanted to say, but it may clear up some of the latter part of my learned friend’s submissions. Going back to the text of the statute and dealing with section 20 first – I withdraw that, if I may. Dealing with section 20 first, I am sorry, section 20(1) provides expressly:
A person who lodges a notice –
That is the triggering act:
with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State deals with registration expressly provided that registration in the first State is a sufficient ground –
Now, if you are going to give work to that phrase, “the sufficient ground of entitlement to registration”, our primary submission is that leaves no room for a discretion such as was sought to be exercised by the VBA or its predecessor in title, and affirmed by the AAT.
As we understand our learned friend’s submission, it boils down to saying those words need to be read as a necessary but not sufficient ground, because there is still room for some other reason not to register. That, in a nutshell, is our argument about the proper construction of section 20(2), and the fact that section 20(2) is enacted after the amendments to the Acts Interpretation Act, in our submission, does not displace that.
It is well established - and we have cited Finance Facilities as an example and the Acts Interpretation Act itself expressly provides - that a statutory rule of construction must yield to a contrary intention. We say that the scheme of Division 2 of this Act in particular does display such a contrary intention - then operates in a perfectly orderly way from the triggering act of lodging the application under section 19.
Once you have lodged that application and you have made the necessary declarations you have, as our learned friend has said, to give consent to the making of inquiries and the exchange of information with the authority of any State regarding the person’s activity in the relevant occupation or otherwise regarding matters relevant to the notice.
The only purpose of requiring that consent to those inquiries is to act in aid, we submit, with sections 21, 22 and 23. The reason for that is this: once you lodge your notice, the registering authority has some options. The fact that it has options does not mean it has a discretion. It has three possible things it can do. It can register. That is the end of that. It is not this case. It can postpone registration. The grounds on which it can postpone registration are expressly provided by section 22, subsection (1) of which has four possible reasons for postponement. Three of them are concerned with the inquiries that can be made or whether the occupation is equivalent.
The change in circumstances, as my learned friend has pointed out, is not reflected in section 23 which provides for refusal of registration, and we would say that gives a breathing space to the registering authority in the second State. So you have postponed. You have had to do that within a month. The Act then allows six months from the date of the lodgement to make a decision.
You cannot postpone for longer than six months, 22(3), and:
the person is entitled to registration immediately at the end of that period, unless registration was refused at or before the end of that period.
Then we see that section 23(1) mirrors section 22(1)(a), (b) and (d). And 22 is about equivalence, so I need not worry about that. The fact that these three courses are laid out for the registration authority in the second State shows, we say, that there is no discretion. What there is is perfectly workable machinery to allow inquiries to be undertaken so that the registering authority in the second State is satisfied with the application.
What is said against this construction in respect of these issues of character by our learned friends is, “Well, it is very artificial, is it not, if you think this person is of bad character, to have to register him and then immediately commence some proceeding dealing with whether he is fit and proper or of good character,” or whatever this week’s version of the Building Act says. The answer to that, we would say, is twofold. It might look artificial, but this scheme is designed to facilitate the movement of goods and services in myriad occupations for many thousands of people across the Commonwealth. The efficiencies in this Act are a primary focus, as appears from the second reading speech and appears from the purpose in the Act itself.
The second thing we would say about it is that there is a temporal aspect. Whether the test is no longer fit and proper or is not fit and proper does not really matter, because the inquiry that is being made is at the time of the disciplinary proceeding brought pursuant to the Building Act ex hypothesi, having become registered, the inquiry is then: what about this person now? That gives a perfectly workable means of regulating the activities of the practitioner in that occupation.
GAGELER J: Is another view of the operation of the scheme that it simply leaves questions of fitness and propriety or good character to the State of origin and that those questions would be excluded in this case from operation by reason of section 20(4)(b)?
MS HANSCOMBE: I am not sure yet I understand your Honour’s question. Do you mean the questions that are raised by our learned friends about what occurred in New South Wales prior to the section 19 notice?
GAGELER J: I may be misunderstanding your most recent submission, but I thought it was addressed to the possibility that, having registered Mr Andriotis in Victoria, the board could immediately – or now the Authority could immediately deregister him or move to deregister him on the ground of bad character.
NETTLE J: Under the Building Act.
GAGELER J: Under the Building Act.
MS HANSCOMBE: Under the Building Act. The board could move to initiate any proceeding it thought it had jurisdiction to move and if the question was, is this person now, presently, fit and proper or of good character that would be a competent investigation and it might be a competent reason to deregister him – I do not know. But the one thing that shows it would not be artificial is that if the board did do that, he would have whatever opportunities he would be normally entitled to in relation to that – that is, he could put material to the board or whatever course he chose to take. But if, as our learned friends say, you can pre‑empt all that and you can do it at the time of the lodgement of the section 19 notice and just refuse under section 20, then he does not even get to that.
GAGELER J: Yes, I follow. What I was putting to you was that one reading of section 20(4)(b) is that that ground of deregistration is not available in the case of someone who has been registered under section 20.
MS HANSCOMBE: Yes, I heard my learned friend say that. It is not clear to us because this requirement of being fit and proper is an ongoing temporal requirement which is applicable to everybody who is a registered builder in Victoria. It would then be dealt with as a registered builder in Victoria. That is how this statute will have to work with every other registering statute in every other participating jurisdiction. That is the way the two have to fit together – remembering again that this statute is sitting over the top of multiple State and Territory statutes that regulate multiple occupations and multiple sorts of goods.
It is intended to permit, once you are through the gateway and you have become registered – it is intended to permit that the local requirements of that occupation will then be regulated in the same way as they would be had you been registered by the Building Act to start with. Registration paths or gateways are parallel.
KIEFEL CJ: That might be a convenient time.
MS HANSCOMBE: If your Honours please.
KIEFEL CJ: The Court will adjourn until 2.15 pm.
AT 12:43 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
KIEFEL CJ: Yes, Ms Solicitor.
MS WALKER: If your Honours please. In light of the clarification of the position of the respondent on the construction of section 23(1), we do not seek to add any ground of appeal or take any further steps.
KIEFEL CJ: Good. Thank you, Ms Solicitor.
MS HANSCOMBE: If the Court pleases. Just before lunch I was responding to a question from his Honour Justice Gageler, and I think I did not answer it completely. We do say, as you know, that “fit and proper” or a character requirement is a qualification within the meaning of section 17(2)(b), and it would follow that it is a qualification within the meaning of section 20(4)(b). But I think I misapprehended your Honour’s question. The power to register is to be found, as we have seen, in section 20(2). Section 20(1) establishes the entitlement. Section 20(2) empowers - authorises the Victorian Building Authority to register.
But that registration then effects registration as if, going back to subsection (1), the registration law in the second State expressly provided that registration in the first State were a sufficient ground. So that means that we effectively put into section 169 of the Victorian Act, “This person is registered in New South Wales, in an equivalent occupation”. The registration itself is then pursuant to Part 11 of the Building Act. Part 11 of the Building Act contains the disciplinary regime established by section 179.
The answer to what I think was the question your Honour Justice Gageler was asking me is “fit and proper” or “character”, however it is expressed, accepting that is a qualification, is not a thing that is immutable about a person. It is not like a condition of birth. It is a thing which is affected by - and effected by, for that matter - conduct. That means – we need to look at tab 6 for the current version, which is at page 89 of the bundle - that once the person had been registered under this Act under Part 11, if:
the Authority believes on reasonable grounds that the practitioner is not –
“is not”, present tense:
a fit and proper person to practise as a building practitioner –
disciplinary action could be taken. There is no difference, we would say, in the change from “is no longer” to “is not” because they are both in the present tense. They are both about the condition of this person at the time disciplinary action is initiated. It also is the case, we would say, that subparagraph (h) could operate. Concern expressed by our learned friends would be caught by subparagraph (h):
the practitioner has obtained the practitioner’s registration under this Part –
and I submit that the registration is under this Part, although the route to this Part is by the MRA ‑
or any required insurance on the basis of information or a document that was false or misleading –
The concern that my learned friend raises, that we are obliged to register this person even though we have concerns about what happened in New South Wales, can adequately be addressed by this regime. It is not the case, on our submission, that anybody needs to wait for New South Wales to do anything once the person is registered. I hope that is a more comprehensible and clearer answer to your Honour’s question.
I have dealt already, I think, with paragraphs 7 to 11 of our oral argument, our 3 page outline. I would like, if I may, to come back to the cases which are said to be the countervailing appellate authorities for the propositions that we put; namely, Tkacz, Petroulias and Scott. The first in time and, we say, a perfectly orthodox application of section 19 of the Mutual Recognition Act is Petroulias. Petroulias is at tab 20 of the bundle. It is reported as [2005] 1Qd R 643.
The facts, you will recall, in Petroulias were that Mr Petroulias had been working in the tax office, he had been convicted of offences that had occurred in the course of that conduct, not as a legal practitioner. He had become admitted as a legal practitioner. He applied for admission pursuant to the Mutual Recognition Act. At page 648 of the report, 448 of the bundle, the Chief Justice sets out these facts. Relevantly, over the page, he had made the declaration at line 14:
“I am not the subject of . . . any preliminary investigations . . . that might lead to . . . disciplinary proceedings . . . in relation to my occupation as a solicitor.”
At paragraph 8 of the judgment, in fact, he was the subject of preliminary investigations that might lead to disciplinary proceedings in relation ‑ ‑ ‑
GORDON J: Does that mean any more than that his section 19 notice was false?
MS HANSCOMBE: No, it does not mean any more than that.
KIEFEL CJ: That is why you say Petroulias is simply an orthodox application of section 19.
MS HANSCOMBE: Yes, we do. Indeed, in terms over the page at paragraph 19 of the judgment:
Mr Petroulias could not make the declaration required by s. 19(2)(d) of the Act, because he was in fact subject to such a “preliminary investigation . . . Because of that inaccuracy –
This is line 9:
which relates to matters of serious potential relevance to his being registered as a solicitor, the notice did not accord with s.19, and the notice was consequently not apt to crystallise the entitlement to registration in Queensland provided for by s. 20.
That is the gravamen of what Mr Petroulias had done. The judgment concerned a question as to whether the provisions of the Mutual Recognition Act had ousted the ability of the court as a court of – the superior court of record to regulate its practitioners. That came about by a somewhat circuitous route.
In Queensland at the time, the authority of the court to admit a person to practise had been delegated to the registrar. The registrar had made a decision. The rules governing the conduct of the registrar said the registrar’s decision is an administrative decision. It is not subject to appeal or judicial review. Any complaint about it has to go to the AAT. There was a question whether the Court of Appeal of Queensland had jurisdiction to revisit the registrar’s decision once this had come to light, that Mr Petroulias had made a false declaration.
What the Chief Justice said, was beginning over at paragraph 32 on page 653 of the report - the rules are set out at paragraph 32. I do not seek to read rules out to your Honours. At paragraph 35, in the middle of the page:
If the Court of Appeal had admitted Mr Petroulias, by registering him as a solicitor in Queensland under the Act, then that Court would retain the inherent capacity to set aside that registration if effected irregularly, as where premised on a circumstance shown not to have existed.
Then it goes ‑ ‑ ‑
KIEFEL CJ: This is to do with the inherent jurisdiction relating to the legal profession but that is a long way from this case.
MS HANSCOMBE: Yes, indeed. Indeed.
KIEFEL CJ: Your point really is that Petroulias does not assist.
MS HANSCOMBE: My point is that Petroulias is irrelevant on the construction and the operation of the Mutual Recognition Act because what was under consideration in the different ways by the three judges was whether the Court of Appeal had had its inherent jurisdiction ousted and likewise in Tkaczc we say. Now, the three judges in Petroulias approached the thing a little bit differently, each from their own perspective but each ‑ ‑ ‑
KIEFEL CJ: Do you say that either of the other two cases bears upon this matter of law - is helpful to the construction of the statute from your perspective?
MS HANSCOMBE: From our perspective, no. I mean, they bear upon it because our learned friends say that they are direct authority that there is a discretion under section 20(2) of the Mutual Recognition Act and we say they are actually about a quite different subject matter. Although I have to say that Scott says, in terms – this is at 23 of the bundle and the relevant passage appears - I do not think there is an authorised report. In the bundle there is a medium-neutral citation [2009] TASSC 12.
Ms Scott had done pretty much the same thing, except she had engaged in more conduct over a longer time, but she had made also an incorrect section 19 declaration. At 512 of the bundle, having referred to Professor Dal Pont’s text on lawyers’ responsibility and ethics:
The cases to which Professor Dal Pont referred did not concern applications for admission under the Mutual Recognition Act. My view is that the overall duty of candour that normally applies to applications for admission is not as broad in the case of applications under the mutual recognition regime. That is because the Mutual Recognition Act, s20(1), establishes entitlement to admission under the Act as if the law of the second State expressly provides that admission in the first State is sufficient ground of entitlement to admission, provided that the applicant is a person who has lodged a notice seeking admission under s19. On its face, s20(1) leaves little room for a discretion based on the applicant’s character or prior conduct. However –
and this is why I have troubled your Honours with this –
there is authority for the proposition that there is a remaining discretion.
Both Petroulias and Tkacz are cited.
GORDON J: Is it your contention that that last sentence is inaccurate?
MS HANSCOMBE: Yes. I take the Court to it only for the purpose of answering the Chief Justice’s question to me.
I do not know if I need trouble the Court anymore with this point. That is exactly what we say, that when you read these three cases carefully in their different ways, what they were concerned with was whether the Mutual Recognition Act had ousted this special regime applying to legal practitioners being supervised by a court.
KIEFEL CJ: Does that take us back to paragraph 12 of your outline?
MS HANSCOMBE: Yes, it does. It is also interesting to notice in the Mutual Recognition Act that section 18 expressly adverts to that different regime as an example of a regime where there may be two registering authorities. So in this present case the Victorian Building Authority has no corresponding or analogous inherent jurisdiction as the court, of course.
It does take me back, as your Honour the Chief Justice says, to paragraph 12. Our learned friends call in aid that there are disciplinary processes available in New South Wales which are cognate to those in section 179 of the Victorian Act. They say that the findings in the AAT as to Mr Andriotis’ registration in New South Wales would be apt to be caught by the New South Wales statute.
But we say that begs the question, because if we are right about the construction of the Mutual Recognition Act, the findings the AAT made, and the inquiry it embarked on, were never open to it to begin with. It is the case, I think, on the evidence and so far and I am aware, that there is no preliminary action of any kind that would catch section 19(2)(d). I think I have dealt with 17 to 20, and in passing with 15 and 16.
EDELMAN J: Can I just ask you about 15 and 16?
MS HANSCOMBE: Yes.
EDELMAN J: As I understand your proposition, if one looks at section 179(1)(g), the questions of fitness and propriety, to the extent to which fitness and propriety includes, for example, matters of character, that would not fall within section 20(4).
MS HANSCOMBE: My point is that qualification, at the time of the entitlement being crystallised, in respect of character in particular, since that is a thing that is not constant about a person, the character may not be the same post‑registration.
EDELMAN J: Yes. So one reads, then, section 20(4)(b) in a temporal sense?
MS HANSCOMBE: Yes. I think you have to, to make it work.
EDELMAN J: How does one do that with the words of section 20(4)(b)?
MS HANSCOMBE: The only way that you can reconcile 20 – well, I should not say the only way, the only way I have thought of that you can reconcile 20(4)(b) with section 179 of the Building Act is to say:
Continuance of registration is otherwise subject to the laws of the second State -
must at least extend to those post‑registration events which are occasioned by the conduct of the person. You have to distinguish their character at the time of qualification; that is at the time of the entitlement crystallising from their conduct as a practitioner. I cannot say to your Honour that this is perfectly constructed. But if you read the statute in that way, the two statutes can be made to work together.
NETTLE J: But you read 17(2)(b), the qualification, as including a qualification that constituted a fitness and propriety, do you not?
MS HANSCOMBE: Yes, at the time of the application.
NETTLE J: At the time of registration.
MS HANSCOMBE: Yes.
NETTLE J: Similarly, when you come across to 20(4)(b), you read it as a qualification ‑ ‑ ‑
MS HANSCOMBE: Yes, we would.
NETTLE J: ‑ ‑ ‑ other than one which, I beg your pardon, one which includes fitness and propriety.
MS HANSCOMBE: Yes, we would.
NETTLE J: So, that in 20(4)(b) the qualification or experience relating to fitness to carry on the occupation has nothing to say about fitness and propriety?
MS HANSCOMBE: Nothing to say about ongoing conduct. What it would seem to be directed to would be, for example, to come quite away from this question of character, remembering that most qualifications are going to be technical qualifications, that the second State cannot then say, well, sorry, you might be registered as a plumber in New South Wales and you might have the relevant certificates from an institute in New South Wales but we now are only going to recognise plumbing certificates granted by the RMIT. It is, in our submission, it is important to keep in mind the enormous scope of this regime and the enormous variety of occupations it is going to apply to. I think I have said everything in my oral outline. Is there anything I can clarify?
KIEFEL CJ: No, thank you, Ms Hanscombe.
MS HANSCOMBE: If your Honours please.
KIEFEL CJ: Anything in reply, Ms Solicitor?
MS WALKER: Ms Harris will address the Court with a short reply, your Honours.
MS HARRIS: Your Honours, if I could first very briefly refer to the two appellate cases that Ms Hanscombe referred to – she referred to the fact that we had relied on three appellate cases. I just wish to draw the Court’s attention to a discussion in the Re Petroulias Case without taking the Court to that discussion which is an obiter discussion but it is relevant to the Court’s understanding of the Mutual Recognition Act scheme and those paragraphs are at paragraphs 21 to 30 of that reported volume.
I will not take the Court’s time now in going to it but there is a recognition in that passage that the Court is not denied all discretion in that case in respect of the admission of practitioners and the submission we would be making and I will make that in a more clear way through the Re Tkacz Case is that there is nothing in the statutory scheme that suggests if such a discretion does exist, as we say it does, it would be limited to the situation of legal practitioners and the inherent jurisdiction of the Court to admit them.
So, because the Re Tkacz Case is a clear illustration, I will not go specifically to the Re Petroulias Case. Re Tkacz was quite relevant, we say, to the operation of the Mutual Recognition Act because unlike the situation in Re Petroulias, Mr Tkacz had been admitted in New South Wales after having disclosed certain criminal offences. So the New South Wales authority had been aware of those criminal offences and had nevertheless admitted Mr Tkacz.
The question then came to the court in Western Australia whether Mr Tkacz could be admitted pursuant to the provisions of the Mutual Recognition Act. We say that the way the Full Court dealt with this question was to say that the mutual recognition actually provided for, had retained the capacity for the local legislation which also, in turn, recognised the court’s inherent jurisdiction to regulate the admission of practitioners to operate.
So it was not a question of something specific about the inherent jurisdiction being taken to override the provisions of the Mutual Recognition Act. The court’s discussion was to the effect that the Act, in fact, preserved that capacity and relevantly to our argument that the way in which it said that the Act preserved that capacity did not draw on any distinction particular to legal practitioners or the inherent jurisdiction of the court, but to the way the Act, in fact, operated.
So, your Honours, if I could draw your Honours’ attention to paragraph 45. Paragraph 45 was a response to the issue that had been set up of a suggested possible conflict between the Mutual Recognition Act provisions and the inherent jurisdiction of the court to regulate the admission of legal practitioners. In paragraph 45, the Full Court says that:
a more detailed consideration of the MRA(Cth) and the legislation of this State relating to the admission of legal practitioners, read in the context of the inherent jurisdiction of the Court, reveals that there is no necessary tension between these objectives, and indeed, that the MRA(Cth) has been crafted in such a way as to give effect to the mutual recognition principle whilst preserving the capacity of a superior court to itself determine which persons are to be admitted as its practitioners.
The court then discusses the inherent jurisdiction, but if I could ask this Court to move to paragraph 62 where the court then discusses the Mutual Recognition Act. It is this analysis that we say shows that there is nothing distinct about the court’s recognition of the ability of the inherent jurisdiction to operate. That is specific only to the inherent jurisdiction of the court and legal practitioners. So at 63, the Full Court notes that:
The LPA -
in Western Australia:
regulates the manner of carrying on the occupation of legal practitioner in the State of Western Australia.
That is the language of section 17(2).
It recognises the power of the Court to refuse to admit a person to the practice of that occupation even though he or she may have all the specified qualifications or experience necessary to fit them to carry on that occupation. It is a law which applies equally to all persons carrying on or seeking to carry on the occupation of legal practitioner in Western Australia. Accordingly, the clear and express effect of s 17(2) of the MRA(Cth) is to provide that the mutual recognition principle does not affect the operation of that aspect of the LPA.
So, if I can just pause there. That is a recognition that section 17(2) in the Full Court’s opinion, did apply to the question of admission; that is, the grant of registration in the language of the Mutual Recognition Act. The court then went on in paragraph 64 to say:
Section 20 of the MRA(Cth) should be read and construed consistently with the clear purpose and effect of s 17(2). So, where s 20(1) refers to a law of the second State expressly providing that “registration in the first State is a sufficient ground of entitlement to registration” it should be taken to be a reference to a sufficiency of the qualifications or experience necessary to secure registration. Moreover, the proposition that s 20(1) was not intended to compel registration in the second State contrary to the exception to the mutual recognition principle expressly established by s 17(2) is reinforced by s 20(2) of the MRA(Cth) which provides:
(2)The local registration authority may grant registration on that ground and may grant renewals of such registration.
The court then goes on, in paragraph 65 to refer to the language “may” rather than “shall” reflecting the court’s approach in Re Davis, and of course that is a case specific to admission of legal practitioners. But the court then concludes at paragraph 66:
So, the language s 17(2) of the MRA(Cth) is replicated in s 20(4) of that Act, relating to continuance of registration.
I interpose that, we say, shows that the court had earlier been really talking about the registration phase. Then the conclusion:
The long‑standing capacity of the superior courts to determine that only the persons with the requisite personal qualities of character be admitted to, or remain on, the Roll would not easily fit within the description of “some qualification or experience”. Accordingly, that capacity of the superior courts, including the Supreme Court of Western Australia, remains unaffected by the mutual recognition legislation.
Then the court wraps up that consideration of the statutory scheme in paragraph 67, by saying:
Nor is any other conclusion supported by the language of ss 22 and 23 of the MRA(Cth) which specified grounds upon which registration “may” be postponed or refused (respectively). While the use of the word “may” is obviously intended to convey the existence of a discretion to postpone or refuse, rather than a duty to postpone or refuse, if the legislature had intended that the specified grounds be exhaustive of those discretionary powers, one would have expected the word “if” in each of those sections to be followed by the phrase “and only if”.
GAGELER J: What was the nature of the jurisdiction being exercised by the Full Court in this case?
MS HARRIS: The Full Court was exercising, your Honour, the jurisdiction referred to it – the start of the judgment records that the General Division of the court heard argument relating to an application by Mr Tkacz for admission as a legal practitioner.
GAGELER J: Yes. And at the end of the judgment they order that he be admitted as a legal practitioner. So it seems to be - I do not know if it is a de novo appeal or a de novo hearing on some sort of appeal, or whether it is simply in the original jurisdiction of the court.
MS HARRIS: It appears to be an original hearing rather than an appeal, your Honour, and it may well be that this was the method that the court chose to exercise its powers as a local registration authority.
GAGELER J: That is my question: is the court assuming that it fits the description of a local registration authority? If it is, it would be a very odd result that this legislation would allow for an appeal to the Administrative Appeals Tribunal from a decision made by a Supreme Court in its inherent jurisdiction. I just wonder if the entire premise of this discussion is misplaced.
MS HARRIS: Your Honour, section 18(3) of the Act does refer expressly to the example of an occupation which is subject to more than one system of registration.
GAGELER J: But it carefully avoids equating a Supreme Court with a local registration authority.
MS HARRIS: It refers in subsection (3) to the admission as a legal practitioner by a court and the issue of a practising certificate by another body.
GAGELER J: The other body being, obviously, a local registration authority but the court ‑ ‑ ‑
MS HARRIS: It does suggest in conjunction with subsection (2) a possible recognition that the court for that purpose is, because it talks about more than one local registration authority in each State. As just pointed out to me, at paragraphs 23 to 24 at page 178 of the reported volume, the court also recognised that situation. It referred to section 18 and it concluded in paragraph 24:
It follows, therefore, that in Western Australia, the Court is the relevant local registration authority for the purposes of admission to practice, and the Board is the relevant local registration authority for the purposes of the issue of a practice certificate.
GAGELER J: The consequence of that view was that if the decision had gone the other way the applicant could have applied to the federal AAT for a review of the decision of the Supreme Court.
MS HARRIS: There may well, your Honour, be a question of whether the scheme could support that conclusion. There was also a discussion in that case of a possible argument – a constitutional argument based on Chapter III, that the Mutual Recognition Act just could not apply to courts in their role with respect to the admission of practitioners.
That was rejected on the basis that a requirement that for one superior court to recognise the admission in another State by another State’s superior court of a legal practitioner did not have an effect inconsistent with Chapter III, but it may well be, if it came to a consideration of the appeal provision in respect of the AAT, there might be questions about that specific provision. Of course, that is not a question for this particular appeal.
The point we wish to make, your Honour, is that there is nothing in the court’s discussion in Re Tkacz of the statutory provisions of the Mutual Recognition Act which the court regarded as providing room for the Legal Practice Act in Western Australia and the inherent jurisdiction in order to operate that would mean that it did not apply to other local registration authorities.
Your Honours, just to conclude on Re Tkacz, like the passages that I pointed out in Re Petroulias, the court pointed out the very difficult consequences that would arise if there is no provision anywhere in the Mutual Recognition Act for some discretion to refuse registration to a person known to be not of good character. The court in that case called it a perverse result and similar observations were referred to in Re Petroulias.
Leaving those cases behind, if I can refer to an observation in the oral outline of the respondents, at paragraph 16 there is a discussion of what might be encompassed by the word “qualification” in section 17(2)(b) and the observation is made that:
reading the word “qualification” in s. 17(2)(b) as limited to the attainment of some technical qualification is inapt. For example, a residency requirement in a statute might equally be covered.
That is in fact a subject matter specifically addressed by the Mutual Recognition Act in section 36. If I could ask the Court to turn to the language of section 36 it says:
Residence or domicile in a particular State is not to be a prerequisite for or a factor in entitlement to the grant, renewal or continuation of registration arising under this Part.
So as a matter of response to paragraph 16 of the oral outline it is clear that residency could not operate any local law requirement as to its residency, but we also draw the Court’s attention to the statement that:
Residence or domicile . . . is not to be a prerequisite for or a factor in entitlement to the grant, renewal or continuation of registration -
That does suggest first that “entitlement”, as used in the Act, reinforces the need to read it subject to the part, as section 17(1) tells us it must be, and section 20(1), which refers to entitlement is also, by reason of section 20(6), to have effect subject to the part. We put that forward as another reason why caution needs to be exercised in reading “entitlement” as some sort of absolute entitlement because it is implicit in the language of section 36 that there might be qualifications on the entitlement and that then comes back to the point made by my learned leader that section 20(2) refers to the grant of registration on the ground of the notice, which does establish some entitlement but it is subject to disentitle in circumstances and we say the Act recognises that.
NETTLE J: How does that square with 21(1) that registration must be granted within a month, unless of course under 22 it is postponed or, under 23, it is refused?
MS HARRIS: Your Honour, we say it is the fact that section 21(1) is qualified by section 21(3) that recognises the power of ‑ ‑ ‑
NETTLE J: Postponement.
MS HARRIS: ‑ ‑ ‑ or refusal.
NETTLE J: But postponement under 22 is limited to the fact, as iterated in (1)(a),(b), (c), (d) and (e) and refusal is limited to the three factors identified in subsection 23(1).
MS HARRIS: Not expressly limited, your Honour. They are not stated in an exhaustive sense and that was something that the court drew attention to in Re Tkacz.
NETTLE J: It looks pretty exhaustive. Why would one not read it as exhaustive? You can do it if, otherwise you must grant admission or registration.
MS HARRIS: It would have been open to make it absolutely crystal clear that the local registration authority had no discretion to refuse other than on those grounds. The language could be – the local registration authority must not refuse the grant of registration unless or, as the record in Re Tkacz observed, if and only if this criterion apply, and we say it is not expressed exhaustively. Your Honours referred to section 21. Section 21(4) observes the ability to refuse where fraud is involved. It uses the odd language of:
no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.
Section 21(4) itself does not provide the power of refusal of registration. So the source of that power must be found elsewhere.
NETTLE J: That is in 23.
MS HARRIS: Well, if it is in 23, your Honour, it is also not expressly stated. It is not one of the expressly identified categories. We say that section 23 might well work in that way, recognising a further category than the categories in (a). Your Honours, the final point I wish to make was in respect of the observation made by Ms Hanscombe that if, as Justice Edelman pointed out, the position is that someone – that a local registration authority might receive a section 19 notice, be aware of matters going to the applicant’s good character that would not be a matter that the local registration authority could act on in respect of registration, that they could then take action immediately with respect to disciplinary action. The submission was made that, at least, in that case there is a process that will unfold and there will be procedural fairness given to that applicant.
Now, there has already been a reference made to the provision for a merits review in the AAT, which will ensure that there is, ultimately, a very complete opportunity for procedural fairness. But we would also absolutely accept that if a local registration authority wished to act in its discretion – a discretion, we say, it does have – to refuse on the basis of a character consideration, procedural fairness would apply. In this case procedural fairness was observed by a local registration authority writing to the respondent and inviting some further information about the experience that he said he had had and he did respond to that. That is referred to in the AAT reasons at paragraphs 3 and 4. If there is nothing further, those are our submissions.
KIEFEL CJ: Thank you, Ms Harris. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.
AT 2.59 PM THE MATTER WAS ADJOURNED
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