Watson v Director-General, Department of Services, Technology and Administration

[2010] NSWADT 44

CITATION:	Watson v Director-General, Department of Services, Technology and Administration [2010] NSWADT 44
DIVISION:	General Division
PARTIES:	APPLICANT Christine Watson (093337) Simon Turner (093338) Marquette Turner Corporation Pty Ltd (093339) Michael Marquette (093340) RESPONDENT Director-General, Department of Services, Technology and Administration
FILE NUMBER:	093337, 093338, 093339, 093340
HEARING DATES:	8 February 2010
SUBMISSIONS CLOSED:	8 February 2010
DATE OF DECISION:	12 February 2010
BEFORE:	Chesterman M - Deputy President
CATCHWORDS:	Jurisdiction of Tribunal – Property, Stock and Business Agents Act 2002 – suspension of licence pending decision regarding disciplinary action
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fair Trading Act 1987 Government and Related Appeals Tribunal Act 1980 Interpretation Act 1987 Home Building Act 1989 Property, Stock and Business Agents Act 2002 Teaching Services Act 1980
CASES CITED:	Commissioner for Fair Trading v Awadallah [2006] NSWADTAP 31 Commissioner for Fair Trading v Cruz [2006] NSWADTAP 51 Handbury Holdings Pty Ltd v Commissioner of Taxation [2009] FCAFC 141 IW v City of Perth (1997) 191 CLR 1 Kelly v Commissioner of Department of Corrective Services (2001) 52 NSWLR 533; [2001] NSWCA 148 Managing Director, Technical and Further Education Commission v Fines (1993) 32 NSWLR 385 Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
REPRESENTATION:	APPLICANT B Compton, solicitor RESPONDENT R Henderson, barrister
ORDERS:	1. Each of the applications constituting these proceedings (file numbers 093337, 093338, 093339 and 093340) is dismissed for want of jurisdiction 2. The Tribunal’s orders made on 6 January 2010 are discharged 3. The directions hearing set down for 15 February 2010 is vacated.

REASONS FOR DECISION

Introduction

1 In these proceedings, four Applicants – Christine Watson, Simon Turner, Marquette Turner Corporation Pty Ltd and Michael Marquette – filed applications on 17 December 2009 seeking the exercise by the Tribunal of its jurisdiction to review reviewable decisions made under the Property, Stock and Business Agents Act 2002 (‘the Act’). The Respondent to each application is the Director-General, Department of Services, Technology and Administration.

2 Ms Watson holds a real estate and strata management agent licence issued under the Act. Mr Turner and Mr Marquette each hold a real estate licence. Marquette Turner Corporation Pty Ltd holds a real estate corporation licence.

3 With the consent of all the parties, the hearing of these four applications has been consolidated.

4 The decisions of which review has been sought are decisions by a delegate of the Respondent, made on 10 December 2009 under section 196 of the Act, that the licences of each Applicant should be suspended pending the determination of whether disciplinary action is to be taken. The grounds on which these decisions were based were set out in show cause notices issued under section 195. Notices of the suspensions and the show cause notices were served on each Applicant on 11 December 2009.

5 Each of the Applicants filed two applications in the Tribunal. In their primary application, they sought orders reviewing the Respondent’s decisions to suspend their licences (hereafter ‘the suspension decisions’). In an accompanying application, they sought orders staying these suspensions pending the determination of their primary application.

6 At a hearing on 23 December 2009, the President of the Tribunal made orders adjourning the hearing of the stay applications on the basis that the Applicants undertook to comply with notices under section 206 of the Act served by the Respondent on each of them on the same day. These notices required them to produce documents within a number of specified categories to the Respondent. The President also gave a direction regarding filing and service by the Respondent of the documents required by section 58 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’).

7 At a further hearing on 6 January 2010, I ordered as follows, by consent of the parties: (a) the suspension decisions should be stayed pending compliance by the Applicants with undertakings, resembling those given by them on 23 December 2009, to produce specified documents; and (b) on receipt of notification from the Respondent that these undertakings had been complied with, the suspension decisions should be set aside. I also set aside the direction previously given for filing and service of documents under section 58 of the ADT Act.

8 The Respondent did not question the Tribunal’s jurisdiction at either of these hearings. But in a letter to the Registrar dated 14 January 2010, the Respondent expressed doubt as to whether a decision to suspend a licence under section 196 of the Act was reviewable by the Tribunal. The Respondent also indicated that the question whether the Applicants had complied with the undertakings given on 6 January 2010 had not yet been determined.

9 In a further letter to the Registrar, dated 21 January 2010, the Respondent stated that it wished to contest the Tribunal’s jurisdiction and asked for the proceedings to be relisted for argument on this matter. The letter put forward brief reasons why the Tribunal’s jurisdiction was open to question.

10 Copies of both these letters were sent to the Applicants’ solicitor, Mr Bailey Compton of Leverage Australia. In a letter dated 22 January 2010 to the Respondent (of which a copy was sent to the Registrar), he stated, giving brief reasons, that in the view of the Applicants the Tribunal did have jurisdiction. He also stated that, if the Tribunal agreed this view, he would seek an order that the Respondent pay the Applicants’ costs occasioned by the objection to jurisdiction on an indemnity basis.

11 In written submissions filed on 5 February 2010, Ms Henderson, counsel for the Respondent, contended that for reasons set out in the submissions the Tribunal should dismiss for want of jurisdiction the primary applications and the stay applications that the Applicants had lodged and should vacate the orders made on 6 January 2010.

12 On 8 February 2010, Ms Henderson and Mr Compton addressed me on the question of jurisdiction. That question is the subject of the present judgment.

Relevant legislation

13 Under section 38 of the ADT Act, the Tribunal has jurisdiction under an enactment to review a decision made by an administrator in the exercise of a statutory function if the enactment so provides.

14 The provision on which the Applicants relied in claiming that the Tribunal possessed jurisdiction to review the suspension decisions is section 200 of the Act. This section, which falls within Part 12 of the Act, is in the following terms:-

200 Review of disciplinary action by ADT

A person against whom disciplinary action is taken by the Director-General may apply to the Administrative Decisions Tribunal under the Administrative Decisions Tribunal Act 1997 for a review of the Director-General’s decision on the disciplinary action or on a review of the disciplinary action.

15 The suspension decisions were made under section 196. This states:-

196 Power to suspend licence or certificate of registration when show cause notice served

(1) When a show cause notice is served on a person, the Director-General may by notice in writing to the person suspend the person’s licence or certificate of registration pending a determination by the Director-General of whether to take disciplinary action under this Act against the person.

(2) The Director-General may only suspend a licence or certificate of registration under this section if satisfied that the grounds for disciplinary action specified in the show cause notice would, if established, justify the suspension or cancellation of the licence or certificate of registration.

(3) Such a suspension may not be imposed for a period of more than 60 days after the show cause notice is served.

(4) The Director-General is not required to afford a person an opportunity to be heard before taking action against the person under this section.

(5) The Director-General can revoke a suspension under this section at any time by notice in writing to the suspended person.

(6) This section does not limit or otherwise affect any power to suspend a licence or certificate of registration under section 64A of the Fair Trading Act 1987 .

16 A number of other sections within Part 12 of the Act contain provisions relating in different ways to ‘disciplinary action’.

17 Section 191 is headed ‘Grounds for disciplinary action’. It states that ‘disciplinary action under this Part can be taken against’ a licence holder on grounds such as the following: contravening the Act or regulations made under the Act, contravening a condition attached to the licence; acting unlawfully, improperly, unfairly or unlawfully in the course of carrying on business or exercising functions under the licence; not being a fit and proper person to be involved in the direction, management or conduct of the business of a licensee; breaching an undertaking given to the Director-General; and failing to pay a monetary penalty imposed ‘pursuant to the taking of disciplinary action under this Part’.

18 Subsections (1) and (2) of section 192 state:-

Disciplinary action

(1) Each of the following actions is disciplinary action that the Director-General can take against a person under this Act:


(a) caution or reprimand the person,

(b) give a direction to the person requiring the person to give a specified undertaking to the Director-General as to the manner in which the person will conduct business or exercise functions under a licence or certificate of registration held by the person,

(c) give a direction to the person requiring the person to take specified action within a specified time in connection with the conduct of business or the exercise of functions under a licence or certificate of registration,

(d) impose a monetary penalty on the person of an amount not exceeding 100 penalty units in the case of an individual or 200 penalty units in the case of a corporation,

(e) impose a condition on the person’s licence or certificate of registration,

(f) suspend the person’s licence or certificate of registration for a period that does not exceed the unexpired term of the licence or certificate of registration,

(g) cancel the person’s licence or certificate of registration,

(h) declare the person to be a disqualified person for the purposes of this Act, either permanently or for a specified period,

(i) disqualify the person from being involved in the direction, management or conduct of the business of a licensee.

(2) A power conferred by this Act to take disciplinary action against a person is a power to take any one or more of the actions that constitute disciplinary action.

19 Section 193 empowers the Director-General to decide to take no action in a matter that has been the subject of consideration ‘whether or not the Director-General determines that there are grounds for taking disciplinary action in connection with the matter’.

20 Section 194(1) states that any person may make a complaint to the Director-General ‘setting out matters that are alleged to constitute grounds for taking disciplinary action against a person under this Act’. Section 194(1) authorises ‘action under this Part’ even though no complaint has been made.

21 Section 195 states:-

195 Show cause notice

(1) The Director-General may serve a show cause notice on a person if the Director-General is of the opinion that there is reasonable cause to believe that there are grounds for taking disciplinary action against the person.

(2) A show cause notice is a notice requiring a person to show cause why disciplinary action should not be taken against the person under this Act on the grounds specified in the notice.

(3) A show cause notice is to be in writing and is to specify a period of not less than 14 days after service of the notice as the period that the person to whom the notice is directed has to show cause as required by the notice.

(4) The person on whom a show cause notice is served may within the period allowed by the notice make oral or written submissions to the Director-General in respect of the matters to which the notice relates. In the case of a corporation, submissions may be made by a director or officer of the corporation.

22 Section 197 authorises the Director-General to inquire into and investigate ‘the matters to which a show cause notice relates and the submissions, if any, made by or on behalf of the person to whom the show cause notice relates in relation to those matters’.

23 Section 198 states:-

198 Taking of disciplinary action

(1) If the Director-General is satisfied that there are grounds for taking disciplinary action under this Act against a person on whom a show cause notice has been served, the Director-General may by order in writing served on the person take such disciplinary action against the person as the Director-General thinks is warranted.

(2) The order must include a statement of the reasons for the Director-General’s decision on the matter.

24 During the argument before me, mention was made of the power to suspend licences conferred on the Director-General by section 64A of the Fair Trading Act 1987. This power would be exercisable in a case such as the present because the Minister responsible for this Act is also responsible for the Property, Stock and Business Agents Act 2002. So far as relevant, section 64A states:-

64A Suspension of licences

….

(2) If the Director-General is of the opinion that there are reasonable grounds to believe that:


(a) a licensee has engaged in conduct that, under legislation administered by the Minister, constitutes grounds for suspension or cancellation of the licence, and

(b) it is likely that the licensee will continue to engage in that conduct, and

(c) there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of that conduct unless action is taken urgently,


the Director-General may, by notice served on the licensee, suspend the licence for a period of not more than 60 days specified in the notice, commencing on service of the notice.

(3) A notice under subsection (2) has effect according to its terms, whether or not the licensee has been afforded an opportunity to be heard as to whether the licence should be suspended….

(5) If, during the suspension of a licence under this section, the Director-General is satisfied that the facts and circumstances that gave rise to the suspension have so altered that the suspension should be terminated, it is the duty of the Director-General, by further notice specifying the date of termination, to terminate the suspension without delay and restore the licence to the licensee….

(8) A licensee may apply to the Administrative Decisions Tribunal for a review of a decision of the Director-General under this section.

25 Mention was also made of two familiar provisions, sections 33 and 34, of the Interpretation Act 1987. So far as relevant here, these state:-

33 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

34 Use of extrinsic material in the interpretation of Acts and statutory rules

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:…

(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House…

The Respondent’s submissions

26 The Respondent’s objection to jurisdiction was founded on the proposition that a decision to suspend a licence under section 196 does not involve the ‘taking’ of any ‘disciplinary action’ and therefore is not a decision within the scope of the review jurisdiction conferred on the Tribunal by section 200.

27 In seeking to establish this proposition, Ms Henderson relied on a number of what I will call ‘textual indications’ conveyed by the provisions within Part 12 to which I have just referred. In an amplified version, these aspects of her submissions are summarised in the later section of this judgment headed ‘My conclusions’.

28 Ms Henderson submitted also that the review jurisdiction conferred by an enactment on the Tribunal may encompass ‘some, but only some’ of the decisions made by administrators under the enactment. In support of this proposition, she cited the decision of an Appeal Panel, constituted by me, in Commissioner for Fair Trading v Awadallah [2006] NSWADTAP 31 and the Appeal Panel’s decision in Commissioner for Fair Trading v Cruz [2006] NSWADTAP 51.

29 In Awadallah, I held that the Tribunal’s review jurisdiction under section 83B of the Home Building Act 1989 did not extend to a decision by the Commissioner for Fair Trading under section 43(1) cancelling a supervisor certificate that had been issued under the Act. Ms Henderson cited a dictum of mine at [57]. But in order to put this in context, I consider it useful to quote from two earlier paragraphs of the decision. The passages of relevance are as follows:-

51 I have found this a difficult case to decide. The difficulties spring chiefly from the drafting of s 83B of the Act, whose import is less than crystal clear for three reasons at least. First, it defines the range of decisions that are reviewable by reference to three quite different criteria, invoked in different ways…. Secondly, it does not stipulate which decisions are not reviewable. Thirdly, in singling out certain categories of decision as reviewable it does not appear to implement any coherent policy.

52 My conclusion, after careful consideration, is that the appeal should succeed. In essence, this conclusion is the outcome of two factors: (a) that there are strong textual reasons for holding that the holder of an authority that has been cancelled under s 43(1) should not be deemed to be also, for the purposes of s 83B(1), an ‘applicant for the issue’ of the relevant licence; and (b) that, as I have just said, there appears to be no coherent policy underlying s 83B that would justify interpreting it otherwise than according to its literal meaning….

57 With regard to the issues of policy raised in this case, I agree with Mr McDonnell that the only ‘policy’ clearly discernible from s 83B, read in conjunction with other relevant provisions, is that some, but only some, of the decisions of the Director-General with regard to authorities should be reviewable. If no more specific policy than this can be identified, there is, in my view, no basis for departing from purely textual interpretation so as to comply with s 33 of the Interpretation Act .

30 Ms Henderson pointed out that in Cruz, the Appeal Panel approved and followed Awadallah. In addition, it identified, at [47], ‘several cases where, within the one licensing scheme, there has been a restricted conferral of review jurisdiction’.

31 In two decisions of the Court of Appeal on which Ms Henderson relied, analogous questions were raised concerning the jurisdiction of the Government and Related Appeals Tribunal.

32 The first of these cases, Managing Director, Technical and Further Education Commission v Fines (1993) 32 NSWLR 385, related to the Tribunal’s jurisdiction to review decisions of the Technical and Further Education Commission under the Teaching Services Act 1980. Under section 87(1) of that Act, an officer employed by the Commission could be suspended from duty by the Commission pending the investigation of a charge of breach of discipline. Under section 85(2), the Commissioner could impose penalties if such a charge was established by evidence. Under section 24 of the Government and Related Appeals Tribunal Act 1980 (‘the GREAT Act’), an employee of the Commission could appeal to the Tribunal against any decision of the Commissioner of a kind referred to in section 23 (1). This subsection included, at paragraph (e), a decision ‘to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention or contravention of any law or any rule or direction of the employer’.

33 Ms Henderson drew my attention to the following passage within the judgment of Handley JA (with whom Mahoney and Sheller JJA agreed) at 393:-

The Tribunal has jurisdiction to review a decision to suspend an employee where the suspension is imposed following a finding that the employee was guilty of misconduct (s 23(1)(e) of the GREAT Act). A decision to suspend until a charge of breach of discipline has been dealt with cannot be reviewed by the Tribunal.

34 In the second case, Kelly v Commissioner of Department of Corrective Services (2001) 52 NSWLR 533; [2001] NSWCA 148, the Government and Related Appeals Tribunal applied this statement of principle in ruling that it had no jurisdiction to hear an appeal by an employee of the Depart of Corrective Services against his suspension, accompanied by withdrawal of his salary, pending investigation of a charge of misconduct laid against him. The issue again turned on the interpretation of section 23(1)(e) of the GREAT Act. In a brief passage at 566-567 [86], Heydon JA (with whom Giles JA and Rolfe A-JA agreed) held that the Tribunal was correct in so ruling. This passage includes the following observation by his Honour (at 566):-

While the decision to recommend dismissal was part of a disciplinary process, the decision to suspend was only an interim suspension while that disciplinary process was being completed.

35 Ms Henderson submitted that the distinction drawn by Heydon JA was significant in the present case, providing support for the proposition that a decision to suspend a licence under section 196(1) did not involve ‘taking disciplinary action’.

The Applicants’ submissions

36 In his submissions on behalf of the Applicants, Mr Compton placed significant emphasis on principles stated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. He cited two passages from the judgment of Brennan CJ at [34] and [41], explaining the broad approach to be adopted in statutory interpretation. These passages are as follows (footnotes are omitted):-

34. A provision conferring a general power and a provision prescribing the manner in which the repository of that power must exercise it have to be read together. In Colquhoun v Brooks , Lord Herschell said:

" It is beyond dispute, too, that we are entitled and indeed bound when construing the terms of any provision found in a statute to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to shew that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act."

When the Parliament confers a power and statutorily directs the manner of its exercise, "[t]he ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains": Morton v Union Steamship Co of New Zealand Ltd .

41. The purpose of construing the text of a statute is to ascertain therefrom the intention of the enacting Parliament. When the validity of a purported exercise of a statutory power is in question, the intention of the Parliament determines the scope of a power as well as the consequences of non-compliance with a provision prescribing what must be done or what must occur before a power may be exercised.

37 Mr Compton relied also on the following passage, addressing the concept of a ‘hierarchy of provisions’, from the judgment of the majority judges (McHugh, Gummow, Kirby and Hayne JJ) at [70]:-

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

38 In addition, Mr Compton cited a passage in Handbury Holdings Pty Ltd v Commissioner of Taxation [2009] FCAFC 141 at [31], in which the Full Court of the Federal Court, referring to this passage in Project Blue Sky, describing ‘the problem of reconciling apparently conflicting parts’ of a statute as ‘well-worn territory’. It is not necessary to quote this passage.

39 In Mr Compton’s submission, the correct way to view a decision to suspend a licence under section 196(1) of the Act was as a ‘subset’ of the particular example of ‘disciplinary action’ described in section 192(1)(f). It was, he said, not just a ‘preliminary step’ taken in advance of disciplinary action.

40 The other major component of Mr Compton’s argument was to the effect that the evident purpose of section 200 of the Act, defining the scope of the Tribunal’s review jurisdiction, was to include steps of a disciplinary nature taken by the Director-General that would have a significant impact on licence-holders. He pointed out that a suspension for as long as 60 days, such as section 196 permitted, could inflict substantial financial loss on the licence-holder and could well lead to the closure of his or her business. He emphasised also that, if review by the Tribunal were not available, the only recourse for an aggrieved licence-holder who considered the suspension to be unjustified would be to proceed by way of prerogative writ in the Supreme Court. In advancing these arguments, he relied on section 33 of the Interpretation Act 1987.

41 Referring also to section 34 of this Act, Mr Compton handed up a copy of the Second Reading Speech for the Bill which became the Property, Stock and Business Agents Act 2002. In this speech, delivered on 9 May 2002, the then Minister for Fair Trading, the Hon John Aquilina, described the Act’s disciplinary provisions as a ‘new disciplinary framework… that will allow fast action’. Having referred to show cause notices and to the types of disciplinary action available to the Director-General, the Minister said:-

When urgent action is needed to protect consumers from significant loss or harm, the Bill enables the Director-General to issue, when public risk is immediate, a public warning alert to all consumers to the risks of dealing with a particular person, and to immediately suspend a licence in situations of serious risk.

42 At the conclusion of this paragraph in Hansard, the Minister said: ‘There will be access to the Administrative Decisions Tribunal for review of all disciplinary decisions.’

43 In reply to a question from me regarding the practicability of reviewing a suspension decision that could at most last for 60 days, Mr Compton pointed out that the review jurisdiction expressly conferred on the Tribunal by section 64A of the Fair Trading Act 1987 could be effectively invoked even though the same maximum period was prescribed by this section. He referred to the fast-track procedures set out in the Tribunal’s Practice Note No 9 (General Division: Licence Suspensions under the Fair Trading Act 1987).

44 With reference particularly to the two Court of Appeal decisions cited by Ms Henderson (see [31 – 35] above), Mr Compton argued that they should be distinguished because they dealt with employment matters, not with licensing procedures for businesses such as those carried on by the Applicants.

My conclusions

45 In my judgment, the words used in the relevant sections within Part 12 of the Act, properly interpreted within their statutory context, require that the Respondent’s objection to jurisdiction be upheld. They provide strong textual reasons for so ruling, overriding any contrary considerations of policy.

46 I accept a submission made by Ms Henderson that it is important in this context to take account of the fact that these sections consistently use the phrase ‘take disciplinary action’, or some variant such as ‘taking disciplinary action’. It is the manner of use of this phrase (or a variant) that is significant, not the manner of use of the term ‘disciplinary action’.

47 To do otherwise would be to take insufficient account of a principle stated by the High Court in a case on which Mr Compton relied for other reasons. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, the majority judges stated as follows at [71] (footnotes are omitted):-

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In Commonwealth v Baume , Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent”.

48 What I consider to be the correct approach to this task of interpretation may be outlined as follows. As stated in section 196(1) of the Act, the power that the Director-General exercised in making the suspension decisions in this case was a power to suspend a licence ‘pending a determination by the Director-General of whether to take disciplinary action under this Act’ against the holder of the licence. For this reason, suspending a licence under this subsection must be regarded as a measure distinct from, and antecedent to, that of ‘taking disciplinary action’, not as an instance of taking such action.

49 The distinction drawn here is, as Ms Henderson submitted, analogous to the distinction drawn by Heydon JA in Kelly v Commissioner of Department of Corrective Services (2001) 52 NSWLR 533; [2001] NSWCA 148, in the sentence quoted above at [34].

50 Furthermore, section 196(1) states that this suspension power is exercisable ‘when a show cause notice is served on a person’. In section 195, which is the section authorising the Director-General to serve such a notice, it is similarly made clear that this measure is distinct from, and antecedent to, that of ‘taking disciplinary action’. This follows from (a) the provision in subsection (1) that a notice may be served ‘if the Director-General is of the opinion that there is reasonable cause to believe that there are grounds for taking disciplinary action against the person’ and (b) the statement in subsection (2) that a show cause notice is ‘a notice requiring a person to show cause why disciplinary action should not be taken against the person…’

51 Other provisions of Part 12 of the Act invoke the concept of ‘disciplinary action’ being ‘taken’ against a person. It is to be found in the opening words of section 191 and of both subsections (1) and (2) of section 192. It is also to be found in sections 193, 194(1) and 198(1).

52 Section 198(1) confers on the Director-General a power to ‘take disciplinary action’ against a person, by means of an ‘order in writing’. The exercise of this power is subject to two conditions precedent, set out in subsection (1). These are (a) that the Director-General is satisfied that there are grounds for taking disciplinary action under the Act against the person and (b) that a show cause notice has been served on the person. The section also requires in subsection (2) that the order includes ‘a statement of the reasons for the Director-General’s decision on the matter’.

53 These features of the statutory regime created by Part 12 of the Act define and regulate the ‘taking’ of ‘disciplinary action’ against a person. And under section 200, it is only ‘a person against whom disciplinary action is taken by the Director-General’ who may apply to the Tribunal for a review of ‘the Director-General’s decision on the disciplinary action’.

54 The chief textual indication that the term ‘disciplinary action’, as used in section 200, includes or might include a decision under section 196(1) to suspend a person’s licence is to be found in paragraph (f) of section 192(1). This subsection lists the ‘actions’ constituting ‘disciplinary action that the Director-General can take against a person’. Paragraph (f) includes the following ‘action’ in the list: ‘suspend the person’s licence or certificate of registration for a period that does not exceed the unexpired term of the licence or certificate of registration’.

55 The contention, however, that this is enough to support a ruling that a person whose licence is suspended under section 196(1) is ‘a person against whom disciplinary action is taken’ encounters at least two impediments within the provisions that I have been discussing.

56 One formidable impediment is the proposition on which Ms Henderson principally relied. This is simply that according to the express terms of section 196(1) itself, this power to suspend is to be exercised ‘pending a determination by the Director-General of whether to take disciplinary action’. This phraseology conveys a strong implication that the Director-General, when exercising the power, does not ‘take disciplinary action’. The Director-General may, but will not necessarily, take such action after conducting an investigation under section 197 of the alleged matters that prompted the issue of a show cause notice and the decision to suspend.

57 The other impediment is that if this contention were correct the requirements set out in section 198 regarding the ‘taking of disciplinary action’ would not apply to the ‘taking of disciplinary action’ under section 196(1). Despite the apparent intent of section 198 both to confer on the Director the power to take such action and to regulate the exercise of this power, there would exist an independent and concurrent power to ‘take disciplinary action’, namely the suspension power conferred by section 196(1). The Director-General’s exercise of powers under both provisions would be subject to one common condition: namely, that a show cause notice had been served. This in turn is subject to the pre-requisite in section 195(1) that ‘the Director-General is of the opinion that there is reasonable cause to believe that there are grounds for taking disciplinary action against the person’. But a suspension of a licence under section 196(1) would not be subject to the two other requirements in section 198 mentioned above at [52]: i.e. (a) that the Director-General was satisfied that there were ‘grounds for taking disciplinary action’ and (b) that the order by which such action was taken included ‘a statement of the reasons for the Director-General’s decision on the matter’. Instead, a quite different condition laid down in section 196(2) would apply: namely, that the Director-General was satisfied ‘that the grounds for disciplinary action specified in the show cause notice would, if established, justify the suspension or cancellation of the licence’.

58 In my opinion, these features of sections 195, 196 and 198 indicate that ‘taking disciplinary action’ is conceived in Part 12 as a measure that the Director-General is authorised to adopt when, but only when, appropriate ‘grounds’ have been established. In the Macquarie Dictionary, the term ‘disciplinary’ is defined as ‘of or for discipline; promoting discipline’ and the lengthy definition of ‘discipline’ includes references to ‘punishment’ and ‘correction’ and to the imposition of ‘rules of conduct or behaviour’. The ‘taking’ of ‘disciplinary action’ that Part 12 authorises has in my view the objective of ‘correcting’ the person concerned on account of proven misconduct or unsatisfactory conduct and thereby maintaining appropriate standards of conduct within the occupations to which the Act’s provisions apply. On the other hand, suspension of a licence under section 196(1) is authorised as a temporary protective measure when there exist only ‘reasonable grounds’ for believing that ‘disciplinary action’ may be warranted.

59 It should be mentioned also that under section 220 of the Act the Director-General is required to maintain a register, on which various listed matters are to be entered. These include any ‘disciplinary action taken’ under the Act. This register is to be open to public inspection. If a suspension decision under section 196(1) were to be treated as an instance of ‘disciplinary action’ being ‘taken’, it would have to be entered on this public register even though later investigations might show that the suspected conduct thought to justify the notice never occurred.

60 These indications as to the meaning of ‘taking disciplinary action’ are, in my judgment, strong enough to overcome any contrary indications arising from the fact that suspension of a licence is designated by section 192(1)(f) as a form or mode of ‘disciplinary action’ available to the Director-General. It does not follow inevitably from this that any decision of the Director-General to suspend a licence necessarily involves the ‘taking’ of ‘disciplinary action’. By way of analogy, it may be noted that section 192(1)(e) designates the imposition of a condition on a licence as a form of ‘disciplinary action’ available to the Director-General. Under sections 17 and 20 of the Act, the Director-General may grant licences, such as those held by the Applicants, subject to conditions of specified types. It could not, I believe, be contended that a decision under these provisions to grant a licence subject to conditions would involve the taking of ‘disciplinary action’ within the meaning of section 200.

61 Virtually none of the matters outlined in the four preceding paragraphs was mentioned at the hearing. I should therefore make it clear that while I believe them to be relevant to my decision in this case, that decision is primarily based on the features of the legislation discussed elsewhere in this section of my judgment.

62 I acknowledge the force of Mr Compton’s submission that it seems to be anomalous – and indeed to contradict the statement by Mr Aquilina quoted above at [52] – that the Tribunal should have jurisdiction to review a range of decisions under section 198 of the Act amounting to ‘disciplinary action’, but that a licence-holder seeking review of a decision to suspend his or her licence under section 196(2) should be compelled to approach the Supreme Court. By contrast, a suspension under section 64A of the Fair Trading Act 1987 is reviewable by the Tribunal. Yet this contrast could prompt the argument (which was not made before me) that the legislature, having expressly conferred review jurisdiction by enacting section 64A(8) of the Fair Trading Act 1987, chose not to do so when subsequently enacting section 200 of the Property, Stock and Business Agents Act 2002.

63 I should add also that although it is accepted that ‘beneficial’ legislation should be interpreted liberally and with due regard to its aims and objectives, this principle does not override all other considerations. As Brennan CJ said in IW v City of Perth (1997) 191 CLR 1 at 12, ‘Although a provision of [such an] Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural’. In his judgment in Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154 at [7], Weinberg J said:-

It goes without saying that this focus upon a purposive approach does not authorise the courts to legislate a meaning to promote the purpose or object underlying a statute unless that meaning can properly be discerned from the words of the Act itself.

The orders to be made

64 For the foregoing reasons, each of the applications constituting these proceedings is dismissed for want of jurisdiction.

65 In consequence, the Tribunal’s orders made on 6 January 2010 are discharged.

66 In addition, the directions hearing set down for 15 February 2010 is vacated.