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Federal Court of Australia |
Last Updated: 30 January 2004
FEDERAL COURT OF AUSTRALIA
Lawrence v Coal Mining Qualifications Board (NSW) [2004] FCA 37
ADMINISTRATIVE LAW – appeal from decision of Administrative
Appeals Tribunal – review of decision of local registration authorities in
respect of
mutual recognition of occupations – whether Tribunal in error
of law in determining that joint ministerial declarations had
not been applied
consistently with general common law rule applicable to changes in legislation
– whether Tribunal in error
of law in application of statutory provisions
relating to equivalence of occupation – whether Tribunal in error of law
in not
finding that local registration authorities should have enquired into
issue of equivalence – whether leave should be granted
for additional
grounds of appeal – proposed ground concerning reliance on an additional
qualification – proposed ground
concerning legitimate
expectation
Acts Interpretation Act 1901 (Cth) ss 8,
46A, 50
Mutual Recognition Act 1992 (Cth) ss 4(1), 17, 28, 29,
30, 31, 32, 34
Mutual Recognition Act 1992 (NSW)
s 32
Mines Safety and Inspection Regulations 1995 (WA)
reg 2.21
Board of Examiners under the Mines Safety and Inspection
Act 1994 (WA) v Lawrence [2000] FCA 900; (2000) 100 FCR 255 cited
Esber v The
Commonwealth [1992] HCA 20; (1992) 174 CLR 430 cited
Lawrence and Coal Mining
Qualifications Board, Department of Mineral Resources (NSW), Re [2002] AATA 389; (2002) 70
ALD 496 affirmed
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
considered
QUENTIN DERRICK LAWRENCE v
COAL MINING QUALIFICATIONS BOARD (NSW) and BOARD OF EXAMINERS, DEPARTMENT OF
NATURAL RESOURCES AND MINES
(QLD)
W193 of 2002
RD
NICHOLSON J
30 JANUARY 2004
PERTH
ON APPEAL FROM THE
ADMINISTRATIVE APPEALS TRIBUNAL
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BETWEEN:
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QUENTIN DERRICK LAWRENCE
APPELLANT |
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AND:
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COAL MINING QUALIFICATIONS BOARD (NSW)
FIRST RESPONDENT BOARD OF EXAMINERS, DEPARTMENT OF NATURAL RESOURCES AND MINES (QLD) SECOND RESPONDENT |
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DATE OF ORDER:
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|
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WHERE MADE:
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THE COURT ORDERS THAT:
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
ON APPEAL FROM THE ADMINISTRATIVE
APPEALS TRIBUNAL
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AND:
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REASONS FOR JUDGMENT
1 The appellant seeks an order of review in respect of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) given on 24 May 2002: Re Lawrence and Coal Mining Qualifications Board, Department of Mineral Resources (NSW) [2002] AATA 389; (2002) 70 ALD 496. In that decision the Tribunal affirmed decisions of the first respondent dated 13 January 1998 and the second respondent dated 9 July 1999.
2 The first decision was expressed in the following terms in a letter to the appellant dated 13 January 1998:
‘Dear Sir,
MINE OPEN CUT (sic)MANAGER’S CERTIFICATE OF COMPETENCY
I refer to your correspondence seeking registration of your South Australian Mine Manager’s Certificate of Competency under the provisions of the Mutual Recognition (New South Wales) Act 1992.
I wish to inform you that your South Australian Mine Manager’s Certificate of Competency No 175 has been registered for use in New South Wales in accordance with Section 20(2) of the Mutual Recognition (New South Wales) Act 1992, subject to the following conditions.
1. THIS REGISTRATION IS RESTRICTED TO OPEN CUT COAL MINES.
2. Condition 1 is imposed pursuant to Clause 29(2) of the Schedule to the Mutual Recognition Act for the purpose of achieving equivalence of occupations.
The equivalent occupation in New South Wales is the subject of Certificates of Competency granted under Section 19(1)(g) of the Coal Mines Regulation Act, 1982.
...’
3 The second decision was expressed in the following terms in a letter to the appellant dated 8 July 1999:
‘Dear Mr Lawrence
Your application under the Mutual Recognition Act for registration in Queensland as holder of a First-Class Mine Manager’s Certificate of Competency (Coal Mines), received in this office on 1 July 1999
Attached please find the grant of registration to you of a Queensland Limited Mine Manager’s Certificate of Competency (Open-cut Coal Mines).
You may also be eligible for the grant of registration in Queensland of a First-class Mine Manager’s Certificate of Competency (Metalliferous Mines), based on your Western Australian First Class Mine Manager’s Certificate of Competency, should you wish to apply.
I have to advise that the Board of Examiners refuses you a grant of registration in Queensland as holder of a First-class Mine Manager’s Certificate of Competency (Coal Mines), because here that would entitle you to manage both open-cut and underground coal mines. The Queensland Board defines the meaning and scope of the term coal mines used in your South Australian certificate of competency, in the context of coal mining in that State, as embracing open-cut coal mining only.
...’
4 The review is sought in terms of an amended application. However, as a consequence of matters arising in argument at the hearing of the appeal a notice of motion has been brought by the appellant seeking to further amend the application and seeking for extension of time in respect of filing and service of the notice of motion. These matters will be dealt with subsequently in these reasons.
BACKGROUND CIRCUMSTANCES
5 By an application dated 12 December 1997 the appellant made application to the first respondent for recognition pursuant to the Mutual Recognition Act 1992 (Cth) (‘the Act’) of his South Australian First-class Mine Manager’s Certificate of Competency, restricted to coal mines.
6 On 17 December 1997 the appellant made an application to the Western Australian Board of Examiners for recognition of the same occupation exemplified by the South Australian First-class Mine Manager’s Certificate of Competency, restricted to coals mines.
7 In the case of both applications the recognitions granted were restricted to a lower certificate of competency, namely, for only open-cut coal mines and no recognition was given to the equivalent South Australian registration so far as it covered underground and open-cut mining. The appellant therefore applied to the Tribunal for a review of these decisions which had been made on 13 January 1998 and 8 July 1999 respectively.
8 The application in respect of Western Australia was the first to proceed. The Tribunal recommended that the application relating to New South Wales be adjourned to await the outcome in the Western Australian application on the understanding that it could be influenced by rulings in it.
9 On 25 June 1999 the Tribunal set aside the Western Australian decision under review and in substitution decided that the appellant was entitled to be granted a First-class Mine Manager’s Certificate by the Board of Examiners under reg 2.21 of the Mines Safety and Inspection Regulations 1995 (WA), subject to the condition that such certificate be restricted to coals mines of any kind, including underground coal mines and open-cut coal mines, with effect from 17 January 1998.
10 On 30 June 1999 the appellant applied to the second respondent for recognition of his First-class Mine Manager’s Certificate of Competency (Coal Mines) from South Australia. On 8 July 1999 the second respondent advised the appellant that he had been granted a Queensland Limited Mine Manager’s Certificate of Competency (Open-cut Coal Mines) and refused him a grant of registration with respect to underground coal mines. It stated that it did so because it considered that the meaning of coal mines as used on the South Australian Certificate, in the context of coal mining in that State, embraced open-cut coal mining only.
11 On 16 July 1999 the appellant applied to the Tribunal for a review of the decision of the second respondent.
12 An appeal was then lodged by the Western Australian Board of Examiners against the decision of the Tribunal made on 25 June 1999. As a consequence, the applications for review in respect of the New South Wales and Queensland decisions were adjourned to await the outcome of the decision on the appeal to the Full Court.
13 On 5 July 2000 the Full Court (French, Lee and Carr JJ) delivered their reasons in Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence [2000] FCA 900; (2000) 100 FCR 255. The Court ordered that the appeal be dismissed. The consequence was that since that date the appellant has held undisputed registrations for coal mines of any kind including underground coal mines and open-cut coal mines in both South Australia and Western Australia.
14 On 25 August 2000 the South Australian Minister for Minerals and Energy and the Queensland Minister for Mines and Energy, in expressed reliance on s 32 of the Act, executed a Ministerial Declaration jointly declaring equivalence between (1) the occupation which may be carried on by a person granted a Restricted First-Class Mine Manager’s Certificate of Competency under South Australian legislation; and (2) the occupation which may be carried on by a person granted a Limited Mine Manager’s Certificate of Competency under Queensland legislation being a certificate in respect of open-cut coal mines. This Ministerial Declaration was published in the Queensland Government Gazette on 1 September 2000 and in the Commonwealth Government Gazette on 10 April 2002.
15 At a directions hearing before the Tribunal seeking review of the decision of the first respondent the Tribunal was informed that the first respondent did not intend to make a declaration and would rely on the merits of its position and was ready to proceed. However, on 25 May 2001 the South Australian Minister for Minerals and Energy and New South Wales Minister for Mineral Resources executed a joint Ministerial Declaration of Equivalency published in the New South Wales Government Gazette on 1 June 2001 and in the Commonwealth Government Gazette on 3 April 2002.
16 The effect of the declarations was to declare that because no underground coal mines exist in South Australia, a South Australian First-Class Mine Manager’s Certificate of Competency is equivalent to First-Class Mine Manager’s Certificate of Competency (Metalliferous Mines) and Limited Mine Manager’s Certificate of Competency (Open-Cut Coal Mines) in Queensland, and to Above Ground Mine Manager’s Certificate of Competency (Metalliferous Mines) and Open-Cut Mine Manager’s Certificate of Competency (Open-Cut Coal Mines) in New South Wales.
17 The Tribunal postponed the hearing of the appeals at the request of the respondents until after the publication of the joint Ministerial Declarations in the Commonwealth Government Gazette.
18 On 24 May 2002 the Tribunal heard the appeals. It will be observed that was four years and four months after the filing of the application by way of appeal against the decision of the first respondent and two years ten months after the filing of the appeal against the decision of the second respondent.
RELEVANT LEGISLATIVE PROVISIONS
19 In the reasons of the Full Court in Lawrence the statutory framework relevant to the issues arising on this appeal are fully examined. It is not intended to repeat here in full what was there stated but reference to it is of assistance in understanding the operation of the statutory provisions in issue.
20 There are certain statutory provisions which merit repetition here. The objective of the Act is to provide for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupations. So far as that principle relates to occupations, it is expressed as follows in s 17 of the Act.
’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.
(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 carrying on or seeking to carry on the occupation under the law of the second State; and
(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.’
21 The word ‘equivalent’ is defined in s 4(1) of the Act when used in relation to occupation as to mean conditions, limitations or restrictions. Section 28 of the Act provides for the equivalence of occupations carried on in different States to be determined in accordance with that Part.
22 The general principles of determining equivalence are those set out in s 29:
‘29
(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
(2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States.
(3) This section has effect subject to any relevant declarations in force under this Division.’
23 In s 30 it is provided that the Part is to be given effect in accordance with relevant declarations (if any) made under the Division regarding equivalent occupations. Section 31 makes provision for declarations by the Administrative Appeals Tribunal and s 32 makes provision for declarations by Ministers. The provisions relating to the Tribunal are as follows:
‘31
(1) On a review, the Tribunal may make an order that a person who is registered in a particular occupation in a particular State is or is not entitled to registration in another State in a particular occupation and may specify or describe conditions that will achieve equivalence.
(2) On such a review, the Tribunal may make a declaration that occupations carried on in 2 States are not equivalent, but only if the Tribunal is satisfied that:
(a) the activities involved in the occupations are not substantially the same (even with the imposition of conditions); or
(b) registration in one State should not entitle registered persons to carry on a particular activity or class of activity in the other State, where:
(i) the activity or class of activity is a material part of the practice of a person registered in the first State for the occupation; and (ii) the activity or class of activity, if carried out by a person not conforming to the appropriate standards, could reasonably be expected to expose persons in the other State to a real threat to their health or safety or could reasonably be expected to cause significant environmental pollution (including air, water, noise or soil pollution); and (iii) it is not practicable to protect the health or safety of such persons from that threat or the environment from such pollution by regulating the manner in which services in the occupation are provided.
(3) The Registrar or other proper officer of the Tribunal must cause a notice setting out the terms of a declaration under this section to be promptly published in the Gazette.
(4) A declaration made on the basis of paragraph (2)(b) has effect for no longer than 12 months, and the local registration authority must promptly notify appropriate authorities in each other State and the Commonwealth of the declaration.
(5) The local registration authority is to give effect to the decision on the review, and must thereafter act in conformity with the decision in relation to other persons seeking registration.’
24 Section 32 provides a follows in respect of ministerial declarations:
‘32
(1) A Minister from each of 2 or more States may jointly declare, by notice in the Gazette, that specified occupations are equivalent, and may specify or describe conditions that will achieve equivalence.
(2) The declaration may be amended or rescinded in the same way.
(3) The declaration has effect only in relation to the States concerned.
(4) The appropriate local registration authority is to give effect to the declaration.’
25 The role of the Tribunal in providing review is relevantly provided for in the following portion of s 34:
‘34
(1) Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Tribunal for review of a decision of a local registration authority in relation to its functions under this Act.
(2) In subsection (1):
Decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
...’
26 The Mutual Recognition (New South Wales) Act 1992 (NSW) and the Mutual Recognition (Queensland) Act 1992 (QLD) referred to the Commonwealth Parliament, to the extent they were not otherwise included in its legislative powers, such powers as were necessary for the proper enactment of the Act.
27 The applications made by the appellant to the first respondent and to the second respondent applied in accordance with the mutual recognition principle, for registration in New South Wales and Queensland respectively in respect of the occupation relating to his First Class Mine Manager’s Certificate of Competency (Coal Mines). The applications did not specify what was the relevant State legislation under which the equivalence was to be found. The contents of the State legislation have played no part in the written or oral submissions relating to this appeal.
REASONS OF THE TRIBUNAL
28 After referring to the relevant background circumstances and the statutory environment and the content of the ministerial declarations, the Tribunal turned to what it described as a preliminary question of law, namely, the issue of whether Ministerial declarations made on 25 May 2001 and 25 August 2000, as subsequently published in the Gazette, affected the appellant’s application for review. The position it found was that the relevant Ministerial declarations had not been made and had not, therefore, come into force when the appellant lodged with each of the respondents the relevant notice under s 19 of the Act seeking registration for the equivalent occupation or when each of the respondents made its decision under s 20 of the Act in relation to that notice or when the appellant, pursuant to s 34(1), lodged with the Tribunal an application for review of those decisions by the respondents. This was because the Ministerial declarations had since been made and came into force on 3 April 2002 and 10 April 2002.
29 Before the Tribunal the appellant submitted that in accordance with the mutual recognition principle, he was, by virtue of his registration in South Australia, entitled under s 20 of the Act to be registered in the equivalent occupation in New South Wales and in Queensland, namely, the occupation of first-class mine manger of coal mines (including open-cut and underground mines). He supported this by reference to the decision of the Full Court in Lawrence. He submitted that the relevant Ministerial declarations represented an attempt by the Ministers concerned to thwart the mutual recognition principle.
30 The Tribunal found that the matter before it did not involve the repeal of any Commonwealth statutory provisions, regulations or disallowable instruments and accordingly ss 8, 46A and 50 of the Acts Interpretation Act 1901 (Cth) whereby rights accrued under the repeal provisions are preserved, were not applicable. Nevertheless, it accepted that the Ministerial declarations made under s 32(1) of the Act were ‘legislative in nature and have legislative effect’. It considered that it might therefore be arguable that in the absence of clear contrary legislative intent, those Ministerial declarations ‘ought not ... to be understood as applying to facts or events that have already occurred in such way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events’: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267.
31 The Tribunal found that prior to the making of each of the abovementioned Ministerial declarations the appellant had acquired two rights. The first was the right to be ‘registered in the equivalent occupation’ pursuant to s 20(1) of the Act by reason of his having lodged a valid notice under s 19 of that Act with each of the ‘local registration authorities’ (namely, the respondents). The second was the right to have the decisions, which were made by the respondents under s 20(2) of the Act in response to the s 19 notices lodged with them by him, reviewed by the Tribunal by reason of his having lodged with the Tribunal valid applications for review of those decisions pursuant to s 34(1) of the Act: cf Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 440. It considered these rights were required by the appellant by reason of, and in accordance with, the Act.
32 The Tribunal then found as follows on its obligations in the circumstances:
’29. The applicant’s right to be "registered in the equivalent occupation" pursuant to s 20(1) of the MR Act is, by reason of s 20(6), subject to the other provisions of Part 3 of that Act. Division 4 of Part 3 of the MR Act contains provisions dealing with Declarations as to equivalent occupations, namely ss 30-32. By s 30(1), Part 3 of the Act is to be given effect in accordance with any relevant Declarations made under Division 4 regarding equivalent occupations. By s 32(4), the relevant local registration authority is to give effect to any relevant Ministerial Declaration as to equivalent occupations made under s 32(1). The Tribunal, when reviewing a decision of a local registration authority pursuant to s 34(1) of the MR Act, "stands in the shoes" of that authority and determines the matter afresh, and is likewise bound by s 32(4) of the MR Act to give effect to any relevant Ministerial Declaration as to equivalent occupations made under s 32(1). Accordingly, in the present case the Tribunal is bound by s 32(4) of the MR Act to give effect to the two relevant Ministerial Declarations as to equivalent occupations that have been made under s 32(1) – namely, the Ministerial Declaration made on 25 August 2000 and notified in the Commonwealth of Australia Gazette on 10 April 2002 (see paragraphs 16 and 19 above) and the Ministerial Declaration made on 25 May 2001 and notified in the Commonwealth of Australia Gazette on 3 April 2002 ...’
33 Turning to the effect of the Ministerial declarations the Tribunal reasoned as follows:
‘Furthermore, in the Tribunal’s opinion ss 30(1) and 32(4) of the MR Act manifest clear intention on the part of the legislature that effect is to be given by a local registration authority (and by the Tribunal when reviewing a relevant decision of a local registration authority) to a relevant Ministerial Declaration made under s 32(1) of the Act upon its being notified in the Commonwealth of Australia Gazette, notwithstanding that such Declaration may affect an existing application for registration by notification to a local registration authority under s 19 of the MR Act or an existing application, pursuant to s 34(1) of the MR Act, to the Tribunal for review of a decision of a local registration authority made under s 20 of that Act. Section 30(3) of the MR Act in terms relates only to existing registrations and, in the Tribunal’s opinion, has no bearing on the present question of whether a Ministerial Declaration under s 32(1) affects an entitlement to be registered pursuant to s 20 of the Act. Nor, in the Tribunal’s opinion, the Minister’s "second reading speech" in relation to the Mutual Recognition Bill 1992 in the House of Representatives on 3 November 1992, and the subsequent debate in the House of Representatives in relation to that Bill on 12 November 1992 (which were cited by the applicant ...), provide any assistance as regards the proper determination of that question.’
34 The Tribunal then found accordingly that the appellant was entitled, by reason of his possessing a South Australian First-Class Mine Manager’s Certificate of Competency Restricted to Coal Mines, to the equivalent registration in New South Wales in accordance with the Ministerial declarations, namely, ‘Open-cut Mine Manager’s Certificate of Competency (Open-cut Coal Mines)’ and in Queensland to the ‘Limited Mine Manager’s Certificate of Competency (Open-cut Coal Mines)’. Accordingly, the Tribunal affirmed the decision of each of the respondents under review before it.
WHETHER TRIBUNAL WRONGLY TOOK INTO ACCOUNT MINISTERIAL DECLARATIONS
35 It is convenient to commence by the examining the grounds of appeal as they appear in the amended application as it stood at the commencement of the hearing before considering the notice of motion for extension of time and for amendment of the notice of appeal by the addition of other grounds.
36 The first ground of appeal is directed to the Tribunal’s conclusions that the Ministerial declarations in issue were legislative in nature and had legislative effect, was not applied consistently with the general common law rule applicable in the case of changes to existing legislation as set out in Maxwell v Murphy.
37 The principle in Maxwell v Murphy is applicable to rights or liabilities which the law has defined by reference to past events. The Tribunal referred to the two rights which the law had defined by reference to the past events in relation to the appellant. Neither of those rights, and relevantly the right to be registered in the equivalent occupation, was affected by the making of the Ministerial declarations. It is not necessary to consider whether the Tribunal was correct in concluding that the Ministerial declarations were legislative in nature and had legislative effect. This is because, even if that was so, the making of the declarations did not affect the rights as the law had defined them in relation to the appellant. The appellant still had a right to have his applications determined in accordance with the Act including its provisions concerning equivalent occupations. The law had not conferred upon the appellant a right to be registered in the equivalent occupation as that was defined at a particular date. The right to be registered in the equivalent occupation is a right to be registered in a respective occupation (if any) which either is declared to be an equivalent occupation by a joint declaration or is lawfully determined to be an equivalent occupation by the local registration authority. In my opinion the Tribunal was correct to conclude that the Ministerial declarations had not affected the appellant’s rights.
38 I do not, therefore, consider this ground of appeal can succeed.
WHETHER TRIBUNAL ERRED IN REGARDING ITSELF BOUND TO GIVE EFFECT TO MINISTERIAL DECLARATIONS
39 The first contention under this ground is that the Tribunal erred in law in finding that s 30(1) and s 32(4) of the Act manifested a clear intention that effect was to be given by the local registration authority to a relevant Ministerial declaration under s 32(1) of the Act upon its being published in the Commonwealth of Australia Gazette notwithstanding that such declaration may affect an existing application pursuant to s 19 or pursuant to s 34(1) to the Tribunal for review.
40 In the course of oral submissions it was submitted for the appellant that in the course of reaching its decision in relation to the appellant’s applications the Tribunal was obliged to not only consider the Ministerial declaration but also examine the evidentiary matrix concerning the activities in his particular occupation in order to form its view about equivalence. In support, reliance is placed on s 31(2). However, that subsection only comes into operation on a review conducted pursuant to s 31(1). Subsection 31(2) refers to on ‘such’ a review, which is a reference back to the prior subsection. When a Ministerial declaration is made there is no purpose in a tribunal acting pursuant to s 31 to carry out a review on the issue of equivalence.
41 The case for the appellant seeks to support this by contending that s 32(4) should be read subject to the exercise of the power in s 31(2). There is no foundation for that submission. The regime of declarations established by s 32 exists independently of the regime of declarations resulting from enquiry by the Tribunal established by s 31. The making of a Ministerial declaration pursuant to s 32 renders otiose the same issue of equivalence arising in s 31.
42 Attention is then directed to the provisions of s 30(3) preserving the right of a person already registered. I accept that s 30(3) does not do more than address the right of a person already registered. It does not provide any foundation for the contentions for the appellant concerning the application of s 31 and s 32.
43 It was also contended for the appellant that there are exceptions to the proposition that the Tribunal is required to take into account the law as it stands as at the date of its decision. However counsel for the appellant was unable to support the submission by reference to any authority or to particularise the nature of the exceptions.
44 It is also part of the appellant’s case that the Tribunal was wrong to reach the view that it can affirm a decision of a local registration authority (in this case those of the respondents) on the ground of the Ministerial declarations when those declarations were not gazetted either at the time of the original decision of the relevant local registration authority or until after the lodging of the appeal against those decisions. The Tribunal’s view that it was so entitled was based upon the provisions of s 32(4) of the Act. Such view was clearly correct in terms of the Act and in terms of the function of the Tribunal as determined by the Administrative Appeals Tribunal Act 1975 (Cth).
45 In the amended application it was stated that the Tribunal erred in law in finding that the Minister’s second reading speech in relation to the Mutual Recognition Bill 1992 and the subsequent debate on that Bill did not provide any assistance concerning the proper determination of the question of whether a Ministerial declaration under s 32(1) affected an entitlement to be registered pursuant to s 20 of the Act. That contention was not pressed in oral argument and provides no foundation to support this aspect of the case for the appellant.
FAILURE TO TAKE INTO ACCOUNT RELEVANT CONSIDERATION OF VALID REGISTRATION IN WESTERN AUSTRALIA
46 This is a proposed additional ground of appeal to which the notice of motion (filed on 12 November 2003) is applicable. If time is extended and leave granted, it is proposed to argue on behalf of the appellant that the Tribunal erred in law in failing to take into account all relevant considerations for the determination of the appeal, in particular the fact that the appellant had a valid registration in Western Australia that was capable of mutual recognition notwithstanding the joint Ministerial declarations issued by the respondents. It would be said that the registration was known to the Tribunal and that the Tribunal referred to the decision of the Full Court in Lawrence so that the Tribunal should have considered the existence of the Western Australian registration when considering the issue of mutual recognition of qualifications in New South Wales and Queensland. If it had done so, it is said the only possible result would have been to provide the appellant with registration in New South Wales and Queensland pursuant to the mutual recognition principle in accordance with the reasoning of the Full Court in Lawrence.
47 For this ground to succeed the Tribunal would have had to be satisfied that each of the respondents had before it an application from the appellant based not only on the South Australian registration but also on the Western Australian registration. The Tribunal made a clear finding that the application to each was based on the South Australian registration. Therefore, there could have been no failure by the Tribunal to consider the issue, which in any event was not activated before it.
48 In any event, there are proper foundations for that finding by the Tribunal in the evidence. At the time the appellant applied to the first respondent seeking unrestricted registration in relation to coal mining in New South Wales, the first respondent had been advised by the local registration authority in Western Australia or on its behalf that his Western Australian certificate did not extend to underground mining. In the case of the application to the second respondent, the decision of that respondent quoted at the commencement of these reasons expressly draws the appellant’s attention to what the position might be in relation to his Western Australian certificate if he pursued an application in respect of it.
49 For these reasons I consider that even if time was extended and leave granted to argue this ground of appeal it could not succeed. For that reason the extension of time and grant of leave will be refused.
DENIAL OF PROCEDURAL FAIRNESS BY DENIAL OF LEGITIMATE EXPECTATION
50 This is the second additional ground which the notice of motion addresses. It is proposed to argue for the appellant that the Tribunal erred in law in failing to find that the appellant had been denied procedural fairness because when the appellant as an unrepresented person agreed to adjourn the appeal pending the outcome of the appeal against the Western Australian decision to refuse recognition, he had a legitimate expectation that he would be treated fairly by the Tribunal and that it would act on the basis of the outcome of the Full Court decision when determining the appeals against the respondents’ decisions and that the respondents would not take action by joint Ministerial declaration to defeat any adverse finding resulting from the decision of the Full Court in Lawrence. The kernel of his legitimate expectation is said to have been that the applications the subject of this appeal would be heard on the basis of the facts as they stood at the date the application was adjourned and of the law as determined by the decision of the Full Court.
51 Even if leave was granted this ground could not succeed. In the first place, it proceeds on the mistaken view that the outcome of the Western Australian appeal was going to be determinative of questions of equivalence between South Australia and the respondents’ States. That was clearly not the case. The applications to New South Wales and Queensland were going to involve different facts and different evidence. Furthermore, there was no suggestion, let alone evidence, that there was a promise or representation, let alone agreement, that the applications would be dealt with on the basis of the facts as they stood at a particular time prior to the determination of the Tribunal’s hearing. Additionally, there is no evidence of promises that a particular procedure would be followed in making a decision. Likewise, there is no evidence of the making of a representation or promise by any party or entity or person not to make a joint Ministerial declaration. The authorities relied upon for the appellant in potential support of this proposed ground concern a different area of discourse, namely, the opportunity to answer adverse material or a requirement that the executive be held to representations or a promise made by a public authority that a particular procedure would be followed in making a decision.
52 Additionally, the ground is cast in ways that are addressed more to the conduct of the respondents than to the Tribunal and it is only the decision of the Tribunal which is on appeal to this Court.
53 For these reasons I consider that this proposed ground could not succeed. Accordingly, extension of time and leave to amend the notice of appeal will also be refused in respect of that proposed ground.
CONCLUSION
54 For the above reasons I consider the appeal should be dismissed.
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I certify that the preceding fifty-four (54) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice
RD Nicholson.
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Associate:
Dated: 30 January 2004
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Pro Bono Counsel for the Appellant:
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Mr G Mohen
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Pro Bono Solicitor for the Appellant:
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Friedman Lurie Singh
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Counsel for the First Respondent:
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Mr JA Kernick
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Solicitor for the First Respondent:
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New South Wales Department of Mineral Resources
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Counsel for the Second Respondent:
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Mr PDT Applegarth SC
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Solicitor for the Second Respondent:
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Crown Law Queensland
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Date of Hearing:
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14 October 2003
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Date of last written submissions:
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9 December 2003
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Date of Judgment:
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30 January 2004
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