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Administrative Appeals Tribunal of Australia |
Last Updated: 13 June 2002
ADMINISTRATIVE APPEALS TRIBUNAL )
) No (W1998/25,
) (W1999/233
GENERAL ADMINISTRATIVE DIVISION )
Re QUENTIN DERRICK LAWRENCE
Applicant
And COAL MINING QUALIFICATIONS BOARD, DEPARTMENT OF MINERAL RESOURCES (NSW)
Respondent
Re QUENTIN DERRICK LAWRENCE
Applicant
And BOARD OF EXAMINERS, DEPARTMENT OF NATURAL RESOURCES AND MINES (QLD)
Respondent
Tribunal Associate Professor S D Hotop, Deputy President
Date 24 May 2002
Place Perth
Decision The Tribunal: No W1998/25 Affirms the decision under review; No W1999/233 Affirms the decision under review.
..........(sgd S D Hotop)........................
Deputy President
CATCHWORDS
PROFESSIONAL QUALIFICATIONS - Mutual Recognition - applicant certificated in South Australia as a first class mine manager (restricted to coal mines) - applicant applied for registration in New South Wales and Queensland for equivalent occupation - local registration authority in New South Wales granted registration in form of open cut mine manager's certificate of competency (restricted to open cut coal mines) - local registration authority in Queensland granted registration in form of limited mine manager's certificate of competency (open-cut coal mines) - applicant applied to Tribunal for review of decisions of local registration authorities - Declarations regarding equivalent occupations made by Ministers from South Australia, New South Wales and Queensland - Declarations subsequently notified in Commonwealth of Australia Gazette - whether Tribunal required to give effect to Ministerial Declarations in determining application for review.
Acts Interpretation Act 1901 ss 15AA, 15AB, 17(m)
Mutual Recognition Act 1992 ss 4, 16, 17, 18, 19, 20, 21, 23, 24, 28, 29, 30, 31, 32, 34
Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284
Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255
Esber v The Commonwealth (1992) 174 CLR 430
Jebb v Repatriation Commission (1988) 8 AAR 285
Re Lawrence and Department of Minerals and Energy (1999) 55 ALD 751
Maxwell v Murphy (1957) 96 CLR 261
Ogston v Repatriation Commission (1999) 86 FCR 578
24 May 2002 Associate Professor S D Hotop, Deputy President
1. Quentin Derrick Lawrence ("the applicant") has applied to the Tribunal for review of the following decisions:
* a decision of Mr B R McKensey, Chairman, Coal Mining Qualifications Board, Department of Mineral Resources (NSW), communicated to the applicant by letter dated 13 January 1998;
* a decision of the Board of Examiners, Department of Mines and Energy (Qld) (now called Department of Natural Resources and Mines), dated 8 July 1999, communicated to the applicant by letter of the same date signed by Mr P J Minahan, Chairman, Board of Examiners.
2. At the hearing the applicant appeared in person without representation, the Coal Mining Qualifications Board ("the New South Wales respondent") was represented by Mr P Saidi of counsel, and the Board of Examiners ("the Queensland respondent") was represented by Mr P Applegarth of Senior Counsel. The Tribunal had before it the statement and documents ("T documents") lodged by each respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits:
* copy of Hansard record of the "second reading speech" of the Minister for Science and Technology in relation to the Mutual Recognition Bill 1992 in the House of Representatives on 3 November 1992, and of the subsequent debate in the House of Representatives on 12 November 1992 - tendered by the applicant (A1);
* copy of New South Wales Government Gazette notice, dated 1 June 2001, of Ministerial Declaration made under s 32 of the Mutual Recognition Act 1992 by the Minister for Minerals and Energy (SA) and the Minister for Mineral Resources (NSW) on 25 May 2001 - tendered by the New South Wales respondent (R1);
* copy of Ministerial Declaration made under s 32 of the Mutual Recognition Act 1992 by the Minister for Minerals and Energy (SA) and the Minister for Mines and Energy (Qld) on 25 August 2000, together with copy of Queensland Government Gazette notice thereof dated 1 September 2000 - tendered by the Queensland respondent (R2);
* copy of Ministerial Declaration made under s 32 of the Mutual Recognition Act 1992 by the Minister for Minerals and Energy (SA) and the Minister for Mines and Energy (Qld), dated 5 December 2000 and 8 November 2000 respectively, together with copy of Queensland Government Gazette notice thereof dated 9 February 2001 - tendered by the Queensland respondent (R3).
3. At the hearing the parties were afforded the opportunity to make submissions initially in relation to a preliminary question of law - namely, whether or not the abovementioned Ministerial Declarations made on 25 May 2001 (Exhibit R1) and 25 August 2000 (Exhibit R2) are to be given effect by the Tribunal for the purpose of deciding the present applications for review. Accordingly, the parties did not present any oral evidence at this stage but merely presented written and oral submissions in relation to the abovementioned question of law.
4. At a directions hearing on 18 March 2002 the respondents were granted leave to file Commonwealth of Australia Gazette notices of the abovementioned Ministerial Declarations. On 15 April 2002 the Queensland respondent filed a copy of Commonwealth of Australia Gazette (No GN 14, 10 April 2002) notice of the abovementioned Ministerial Declarations made under s 32 of the Mutual Recognition Act 1992 by the Minister for Minerals and Energy (SA) and the Minister for Mines and Energy (Qld) on 25 August 2000, and 5 December 2000 and 8 November 2000. On 17 April 2002 the New South Wales respondent filed a copy of Commonwealth of Australia Gazette (No GN 13, 3 April 2002) notice of the abovementioned Ministerial Declaration made under s 32 of the Mutual Recognition Act 1992 by the Minister for Minerals and Energy (SA) and the Minister for Mineral Resources (NSW) on 25 May 2001. At a resumed hearing on 17 April 2002 the abovementioned copies of the Commonwealth of Australia Gazette notices were formally tendered in evidence by the respondents and were marked Exhibit R4 and Exhibit R5, respectively. The parties were then accorded the opportunity to make further submissions in relation to the abovementioned Commonwealth of Australia Gazette notices and the preliminary question of law referred to in paragraph 3 above. The respondents were content, however, to reiterate their former submissions on the basis that they were to be adapted to take account of the publishing of the abovementioned Commonwealth of Australia Gazette notices, and they chose not to make any additional submissions. The applicant, likewise, maintained his original submission on the same basis.
The Factual Background
5. The background facts, about which there is no dispute between the parties and as found by the Tribunal on the basis of the T documents and exhibits, are as follows.
6. The applicant is the holder of a "(Restricted) Mine Manager's Certificate of Competency, First Class" (No 175) issued by the Board of Examiners for Mine Managers, Department of Mines and Energy (SA), pursuant to the Mines and Works Inspection Act 1920 (SA) and Regulations made thereunder, on 21 May 1993. That Certificate expressly states that it is "Restricted to coal mines".
7. The applicant also holds a "First Class Mine Manager's Certificate of Competency" (No 186) issued by the Board of Examiners for Mine Managers, Department of Mines and Energy (SA), pursuant to the Mines and Works Inspection Act 1920 (SA) and Regulations made thereunder, on 1 September 1995.
8. The applicant also holds a "First Class Mine Manager's Certificate of Competency" (No 470) issued by the Board of Examiners, Department of Minerals and Energy (WA), pursuant to the Mines Regulation Act 1946 (WA) and Regulations made thereunder, on 7 December 1994.
9. On 15 December 1997 the applicant lodged with the New South Wales respondent a form of notice in accordance with s 19 of the Mutual Recognition Act 1992 ("the MR Act") applying for registration in New South Wales, in accordance with the "mutual recognition principle" applying to occupations as set out in Part 3 of the MR Act, as a
"1st Class Mine Manager's Certificate (sic) ..."
pursuant to the provisions of that Act. The notice was signed by the applicant and was accompanied by a statutory declaration, signed by the applicant and dated 12 December 1997, verifying the contents of the notice, as required by s 19(5) of the MR Act.
10. By letter dated 13 January 1998 Mr B R McKensey, Chairman of the New South Wales respondent, wrote to the applicant in the following terms:
"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.
..."
11. On 19 January 1998 the applicant lodged with the Tribunal an application for review (No W1998/25) of the abovementioned decision of the Chairman of the New South Wales respondent dated 13 January 1998.
12. At a meeting of the New South Wales respondent held on 3 February 1998 the abovementioned decision of the Chairman was confirmed. The Minutes of that meeting relevantly state:
"...
(6) General Business
MUTUAL RECOGNITION APPLICATION - QUENTIN LAWRENCE
The Secretary tabled copies of the abovementioned application and accompanying documentation.
The Chairman addressed all members, briefing them on this particular case and informed the members of his action, after seeking legal advice, to register Mr. Lawrence's South Australian Mine Managers' Certificate of Competency and restricting such registration to Open Cut Coal Mines, as there are no operating Underground Coal Mines in South Australia.
It was pointed out that Mr. Lawrence had appealed to the Administrative Appeals Tribunal and that such appeal was pending.
The Board endorsed the actions of the Chairman and Secretary and re-affirmed the Chairman had previously had a mandate to refuse applications, or impose conditions on approved recognitions, without prior approval, taking into consideration time constraints placed on the processing of Mutual Recognition Applications.
However members agreed that from now on, all future applications for mutual recognition, which have been recommended for refusal, or the imposition of conditions, should be referred to the Board, prior to final action being taken.
...".
13. On 1 July 1999 the applicant lodged with the Queensland respondent a form of notice in accordance with s19 of the MR Act applying for registration in Queensland, in accordance with the "mutual recognition principle" applying to occupations as set out in Part 3 of the MR Act, as holder of a "First-class Mine Manager's Certificate of Competency (Coal Mines)" pursuant to the provisions of that Act. The notice was signed by the applicant and was accompanied by a statutory declaration, signed by the applicant and dated 30 June 1999, verifying the contents of the notice, as required by s 19(5) of the MR Act.
14. On 8 July 1999 the Queensland respondent decided, pursuant to the MR Act, to grant to the applicant registration in the form of a "Limited Mine Manager's Certificate of Competency (Open-cut Coal Mines)", with effect from 1 July 1999. The applicant was informed of that decision by letter dated 8 July 1999 from Mr P J Minahan, Chairman of the Queensland respondent, in the following terms:
"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 on your South Australian certificate of competency, in the context of coal mining in that State, as embracing open-cut coal mining only.
...".
15. On 16 July 1999 the applicant lodged with the Tribunal an application for review (No W1999/233) of the abovementioned decision of the Queensland respondent dated 8 July 1999.
16. On 25 August 2000 a Ministerial Declaration was made under s 32(1) of the MR Act jointly by the Minister for Minerals and Energy (SA) and the Minister for Mines and Energy (Qld), and notice thereof was published in the Queensland Government Gazette No 5 dated 1 September 2000, in the following terms:
Whereas no underground coal mines exist in South Australia, we jointly declare that:
(a) the occupation which may be carried on only by a person granted a Restricted First Class Mine Manager's Certificate of Competency pursuant to the Mines and Works Inspection Act 1920 (South Australia) (as amended) and the Mines and Works Inspection Regulations 1966 (South Australia) (as amended), being a certificate restricted to coal mines; and
(b) the occupation which may be carried on by a person granted a Limited Mine Manager's Certificate of Competency pursuant to s 57(1)(c) of the Coal Mining Act 1925 (Queensland) (as amended), being a certificate in respect of open-cut coal mines;
are equivalent.
The Honourable Wayne Matthew MP
South Australian Minister for Minerals and Energy and Minister Assisting the Deputy Premier
The Honourable Tony McGrady MP
Queensland Minister for Mines and Energy and Minister Assisting the Deputy Premier on Regional Development
Dated this 25th day of August 2000."
17. On 25 May 2001 a Ministerial Declaration was made under s 32(1) of the MR Act jointly by the Minister for Minerals and Energy (SA) and the Minister for Mineral Resources (NSW) and notice thereof was published in the New South Wales Government Gazette No 93 dated 1 June 2001 in the following terms:
Ministerial Declaration
WHEREAS no underground coal mines exist in South Australia, we jointly declare that:
(a) the occupation which may be carried on only by a person granted a South Australian Certificate Item A in Schedule 1; and
(b) the occupation which may be carried on only by a person granted a New South Wales Certificate Item F in Schedule 1
are equivalent; and
(a) the occupations which may be carried on only by a person granted a South Australian Certificate Item B in Schedule 1; and
(b) the occupations which may be carried on only by a person granted both New South Wales Certificates Items D and F in Schedule 1
are equivalent; and
(c) the occupation which may be carried on only by a person granted a South Australian Certificate Item C in Schedule 1; and
(d) the occupation which may be carried on only by a person granted a New South Wales Certificate Item E in Schedule 1
are equivalent.
Dated this 25th day of May 2001.
The Honourable WAYNE MATTHEW M.P.,
South Australian Minister for Minerals and Energy
and Minister Assisting the Deputy Premier
Dated this 25th day of May 2001
The Honourable EDWARD OBEID OAM MLC,
New South Wales Minister for Mineral Resources
SCHEDULE 1
DOMAINS OF MINING BEING LEGALLY APPLICABLE TO THE STATUTORY CERTIFICATES OF MINE MANAGEMENT COMPETENCY HEREUNDER, FOR SOUTH AUSTRALIA AND NEW SOUTH WALES
The hatched domain indicates there are no underground coal mines in South Australia.
The table only depicts those certificates referenced in Ministerial Declarations.
DOMAIN METALLIFEROUS COAL
South Australia: Item B South Australia: Items A, B
Open-cut
New South Wales: Item D New South Wales: Item F
South Australia: Items B,C South Australia: Items A, B
Underground
New South Wales: Item E
Item State Certificate Statute
A SA First class mine manager's certificate of Mines and Works Inspection
competency restricted to coal mines. Act 1920 as amended, and the Mines and Works Inspection Regulations 1966 as amended.
B SA First class mine manager's certificate of Mines and Works Inspection competency. Act 1920 as amended, and
the Mines and Works Inspection Regulations 1966 as amended.
C SA First class underground mine manager's Mine and Works Inspection
certificate of competency. Act 1920 as amended, and
the Mines and Works
Inspection Regulations 1966
as amended.
D NSW Above ground mine manager's certificate Part 2, Divisions 1.2A and 3
of competency (metalliferous mines). of the Mines Inspection Act
1901 No. 75 as amended.
E NSW Below ground mine manager's certificate of Part2, Divisions 1,2A and 3 competency (underground metalliferous of the Mines Inspection Act mines). 1901 No 75 as amended.
F NSW Open cut mine manager's certificate of Part 2, Divisions 2, 3 and 4 competency (open cut coal mines). of the Coal Mines Regulation Act 1982 No. 67 as amended.
18. On 3 April 2002 notice of the Ministerial Declaration dated 25 May 2001 (referred to in paragraph 17 above) was published in the Commonwealth of Australia Gazette No GN 13.
19. On 10 April 2002 notice of the Ministerial Declaration dated 25 August 2000 (referred to in paragraph 16 above) was published in the Commonwealth of Australia Gazette No GN 14.
The Legislation
20. The relevant provisions of the MR Act are as follows:
"4.(1) In this Act, unless the contrary intention appears:
...
'local registration authority' of a State for an occupation means the person or authority in the State having the function conferred by legislation of registering persons in connection with their carrying on that occupation in the State;
'occupation' means an occupation, trade, profession or calling of any kind 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), and includes a specialisation in any of the above in which registration may be granted;
...
'registration' includes the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation;
...
'Tribunal' means the Administrative Appeals Tribunal.
(2) This Act is to be interpreted in accordance with the Acts Interpretation Act 1901 as in force at the date on which this Act receives the Royal Assent.
...
Division 1 - Preliminary
16.(1) The mutual recognition principle as applying to occupations is as set out in this Part.
(2) This Part deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.
(3) In this Part, the first-mentioned State is called 'the first State', and the other State is called 'the second State'.
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.
18.(1) This Part applies to individuals and occupations carried on by them.
(2) This Part extends to an occupation carried on by an individual, where the individual is subject to more than one system of registration or more than one local registration authority in a State, and accordingly this Part applies in relation to each such system of registration and each such authority.
(3) Without limiting subsection (2), an example of such an occupation is that of a legal practitioner, which involves both the admission as a legal practitioner by a court and the issue of a practising certificate by another body.
19.(1) A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.
...
20.(1) A person who lodges a notice under section 19 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 that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.
(2) The local registration authority may grant registration on that ground and may grant renewals of such registration.
(3) Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State.
(4) Continuance of registration is otherwise subject to the laws of the second State, to the extent to which 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.
(5) The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person's registration in the first State or that are necessary to achieve equivalence of occupations.
(6) This section has effect subject to this Part.
21.(1) Registration must be granted within one month after the notice is lodged with the local registration authority under section 19.
(2) When granted, registration takes effect as from the date the notice was lodged.
(3) 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.
(4) If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and 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.
...
23.(1) A local registration authority may refuse the grant of registration if:
(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or
(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or
(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
(2) A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.
24. A local registration authority must give the person who lodges a notice in accordance with section 19 a notice in writing of its decision to grant registration, or to postpone or refuse the grant of registration, or to impose conditions on registration.
...
28. The equivalence of occupations carried on in different States is to be determined in accordance with this Part.
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 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.
30.(1) This Part is to be given effect in accordance with relevant declarations (if any) made under this Division regarding equivalent occupations.
(2) If a declaration made by the Tribunal and a declaration made by Ministers are inconsistent, the ministerial declaration prevails.
(3) A declaration under this Part does not affect the registration of any person already registered (except in the case of a declaration made by the Tribunal in relation to that person specifically).
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.
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.
...
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.
...".
The MR Act has been adopted by the Parliaments of New South Wales and Queensland: see, respectively, the Mutual Recognition (New South Wales) Act 1992 (NSW) and the Mutual Recognition (Queensland) Act 1992 (Qld).
21. The Acts Interpretation Act 1901 relevantly provides:
"15AA(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
15AB(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act 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 and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;
(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted;
(c) any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted;
(d) any treaty or other international agreement that is referred to in the Act;
(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
(f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;
(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and
(h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.
(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.
...
17 In any Act, unless the contrary intention appears:
...
(m) Gazette means the Commonwealth of Australia Gazette, and includes the Australian Government Gazette published during the period commencing on 1 July 1973 and ending immediately before the commencement of subsection 5(2) of the Acts Interpretation Amendment Act 1976;
...".
The preliminary question of law: do the ministerial declarations made on 25 may 2001 and 25 august 2000, as subsequently notified in the gazette, affect the applicant's application for review?
22. The power to make the relevant Ministerial Declarations in this case is conferred by s 32(1) of the MR Act in the following terms:
"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."
That power is exercised, according to s 32(1), "by notice in the Gazette". The term "Gazette" is not defined in the MR Act and, accordingly, it is appropriate to turn to the Acts Interpretation Act 1901 in search of a statutory definition of that term. Section 17 of that Act relevantly provides:
"In any Act, unless the contrary intention appears:
...
(m) Gazette means the Commonwealth of Australia Gazette, ...".
The term "Act" in s 17 is a reference to an Act passed by the Parliament of the Commonwealth: see s 38(1) of the Acts Interpretation Act 1901. Accordingly, the Tribunal finds that the relevant Ministerial Declarations in this case took effect, pursuant to s 32(1) of the MR Act, only when they were notified in the Commonwealth of Australia Gazette; not when they were previously notified in the relevant State Government Gazettes. The dates of effect of the relevant Ministerial Declarations are therefore as follows:
* 10 April 2002, in the case of the Ministerial Declaration made jointly by the Minister for Minerals and Energy (SA) and the Minister for Mines and Energy (Qld) on 25 August 2000;
* 3 April 2002, in the case of the Ministerial Declaration made jointly by the Minister for Minerals and Energy (SA) and the Minister for Mineral Resources (NSW) on 25 May 2001.
23. The position in the present case is, therefore, that the relevant Ministerial Declarations had not been made (let alone come into force) when:
* the applicant lodged with each of the respondents the relevant notice under s 19 of the MR Act "seeking registration for the equivalent occupation in accordance with the mutual recognition principle";
* each of the respondents made its decision under s 20 of the MR Act in relation to the relevant s 19 notice lodged by the applicant; and
* the applicant, pursuant to s 34(1) of the MR Act, lodged with this Tribunal an application for review of those decision made by the respondents.
Those Ministerial Declarations have, however, since been made, and have come into force (as set out in paragraph 22 above) on 3 April 2002 and 10 April 2002. The question which arises in these circumstances is whether those Ministerial Declarations affect the determination of the present applications for review. The more specific question which arises is whether the Tribunal, in determining those applications for review, is required, pursuant to s 32(4) of the MR Act, to give effect to those Ministerial Declarations. The applicant concedes (correctly, in the Tribunal's opinion) that, if the answer to that question is in the affirmative, the decisions under review must necessarily be affirmed by the Tribunal at this stage. If, on the other hand, the Tribunal answers the above question in the negative, it will be necessary for the Tribunal to conduct a further resumed hearing for the purpose of receiving evidence and additional submissions and ultimately reviewing the respondents' decisions on the merits.
The Submissions
24. The applicant submitted in essence that, in accordance with the mutual recognition principle, he was, by virtue of his registration in South Australia, entitled under s 20 of the MR Act to be registered in the equivalent occupation in New South Wales and Queensland - namely, first class mine manager of coal mines (including open cut and underground coal mines) - in accordance with the decision of this Tribunal in Re Lawrence and Department of Minerals and Energy (1999) 55 ALD 751 (upheld on appeal by a majority of the Full Court of the Federal Court of Australia in Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255). He submitted that the relevant Ministerial Declarations represented an attempt by the Ministers concerned to thwart the mutual recognition principle and to prevent his South Australian qualification from being recognised in their home States. He cited the "second reading speech" of the Minister for Science and Technology in relation to the Mutual Recognition Bill 1992 in the House of Representatives on 3 November 1992 with respect to the mutual recognition principle. He also referred to s 30(3) of the MR Act which provides that a Ministerial Declaration "does not affect the registration of any person already registered" and submitted that the relevant Ministerial Declarations in this case have no effect on his registration in New South Wales and Queensland and that the Tribunal, notwithstanding those Ministerial Declarations, should determine for itself the occupations in New South Wales and Queensland which are equivalent to the occupation for which he is registered in South Australia, and decide that he is entitled to registration for those occupations in New South Wales and Queensland.
25. The respondents made extensive submissions the essence of which may be summarised as follows:
* the applicant does not have the right to have his claim for registration under the MR Act in New South Wales and Queensland determined by reference only to the facts in existence at the date of lodgment of his s 19 notice; on the contrary, the Tribunal, in determining that claim, may have regard to the facts that have occurred up until the date of the Tribunal's decision, including the making of a Ministerial Declaration under s 32(1) of the MR Act: Jebb v Repatriation Commission (1988) 8 AAR 285 at 289.
* to the extent that the making of a Ministerial Declaration under s 32(1) of the MR Act is treated as an alteration to the law, the applicant nevertheless does not have the right to have his claim for registration under the MR Act in New South Wales and Queensland determined by reference to the law as it existed at the date of lodgment of his s 19 notice: Ogston v Repatriation Commission (1999) 86 FCR 578;
* if the applicant were to be treated as having accrued rights prior to the alteration to the law effected by the relevant Ministerial Declarations in this case (which is not conceded), ss 30(3) and 32(4) of the MR Act manifest a clear intention that the applicant's right to registration under s 20 should be affected by a Ministerial Declaration which is made after the date of lodgment of his s 19 notice;
* s 32(4) of the MR Act requires the appropriate local registration authority - and, on review, the Tribunal "standing in the shoes" of that local registration authority - to give effect to a Ministerial Declaration made under s 32(1) in determining a claim for registration in an equivalent occupation pursuant to s 20 of that Act;
* the relevant Ministerial Declarations in this case, as regards the occupations declared thereby to be equivalent, are strictly in accord with the decisions of the respondents presently under review by the Tribunal and, accordingly, the Tribunal is obliged, pursuant to s 32(4) of the MR Act, to affirm those decisions.
Consideration and Findings
26. The Tribunal's review function was summarised by the Federal Court of Australia (French J) in Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 at 297 as follows:
"The Tribunal is empowered in reviewing a decision to exercise 'all the powers and discretions that are conferred by any relevant enactment on the person who made the decision': s 43(1), Administrative Appeals Tribunal Act. In so doing it does not discharge a merely supervisory role considering whether the decision under review was the correct or preferable one on the material before the primary decision-maker. It is required to determine whether the decision was the correct or preferable one on the material before the Tribunal: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, per Bowen CJ and Deane J (at 419) and per Smithers J (at 438). It is not confined to a consideration only of events which occurred up to the time of the decision under review: see Commonwealth v Ford (1986) 9 ALD 433 at 437, per Wilcox J. The proper approach for the Tribunal is to regard the administrative decision-making process as a continuum and to look upon its function as a part of that continuum so that within the limits of reconsideration of the decision under review, the Tribunal considers the applicant's entitlement from the date of application or other proper commencing date to the date of the Tribunal's decision: see Jebb v Repatriation Commission (1988) 8 AAR 285 at 289, per Davies J. Where a question of entitlement to some benefit arises, the Tribunal can consider the entitlement as at the date of the decision under review and subsequently. The nature of the decision under review must, however, be kept in mind. Review of a decision to cancel a pension, for example, would be limited to whether, on the material before the Tribunal, cancellation was the correct or preferable decision at the time it was made: see Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 345, per Davies J. In that case the decision under review was that of a delegate of the Secretary affirming the earlier decision of an officer. The function of the Tribunal was to reconsider the earlier decision and to determine whether the cancellation decision was the correct or preferable one to have been made at that time."
The present case involves the applicant's entitlement to registration in the "equivalent occupation", pursuant to s 20(1) of the MR Act; it does not involve a cancellation of the applicant's registration in an occupation.
27. The present case does 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, whereby rights accrued under the repealed provisions are preserved, are not applicable. The present case does, however, involve Ministerial Declarations under s 32(1) of the MR Act which, in the Tribunal's opinion, are legislative in nature and have legislative effect. It might, therefore, be arguable - consistently with the general common law rule that applies in the case of changes to existing legislation - that, in the absence of a clear contrary legislative intent, those Ministerial Declarations "ought not...to be understood as applying to facts or events that have already occurred in such a 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) 96 CLR 261 at 267.
28. Prior to the making of each of the abovementioned Ministerial Declarations, the applicant had acquired the following relevant rights:
* the right to be "registered in the equivalent occupation" pursuant to s 20(1) of the MR 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 right to have the decisions, which were made by the respondents under s 20(2) of the MR Act pursuant 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 MR Act (see Esber v The Commonwealth (1992) 174 CLR 430 at 440).
The abovementioned rights were acquired by the applicant by reason of, and in accordance with, the MR Act.
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 (see paragraphs 17 and 18 above).
30. Furthermore, in the Tribunal's opinion ss 30(1) and 32(4) of the MR Act manifest a 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, do 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 - Exhibit A1), provide any assistance as regards the proper determination of that question.
31. The findings of the Tribunal are accordingly as follows:
* in accordance with the Ministerial Declaration made under s 32(1) of the MR Act jointly by the Minister for Minerals and Energy (SA) and the Minister for Mineral Resources (NSW) on 25 May 2001, as notified in the Commonwealth of Australia Gazette on 3 April 2002, the applicant, by reason of his relevant registration in South Australia (namely, (Restricted) Mine Manager's Certificate of Competency, First Class, Restricted to Coal Mines), is entitled to the equivalent registration in New South Wales, namely, "Open Cut Mine Manager's Certificate of Competency (Open Cut Coal Mines)";
* in accordance with the Ministerial Declaration made under s 32(1) of the MR Act jointly by the Minister for Minerals and Energy (SA) and the Minister for Mines and Energy (Qld) on 25 August 2000, as notified in the Commonwealth of Australia Gazette on 10 April 2002, the applicant, by reason of his relevant registration in South Australia (namely, (Restricted) Mine Manager's Certificate of Competency, First Class, Restricted to Coal Mines), is entitled to the equivalent registration in Queensland, namely, "Limited Mine Manager's Certificate of Competency in respect of Open-cut Coal Mines".
By the decision under review in Application for Review No W1998/25 (see paragraph 10 above), the New South Wales respondent granted to the applicant the registration in New South Wales which has been declared by the abovementioned Ministerial Declaration made on 25 May 2001 to be equivalent to the applicant's relevant registration in South Australia on the basis of which he sought registration in New South Wales. Likewise, by the decision under review in Application for Review No W1999/233 (see paragraph 14 above), the Queensland respondent granted to the applicant the registration in Queensland which has been declared by the abovementioned Ministerial Declaration made on 25 August 2000 to be equivalent to the applicant's relevant registration in South Australia on the basis of which he sought registration in Queensland.
Decision
32. For the above reasons the Tribunal:
* affirms the decision of the New South Wales respondent dated 13 January 1998, the subject of Application for Review No W1998/25;
* affirms the decision of the Queensland respondent dated 8 July 1999, the subject of Application for Review No W1999/233.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Signed: ......(sgd V Wong).........
Associate
Date/s of Hearing 7 June 2001, 1 August 2001, 17 April 2002
Date of Decision 24 May 2002
Counsel for the Applicant In person
Counsel for the Respondent Mr P Saidi
(New South Wales Coal Mining Qualifications Board)
Solicitor for the Respondent Mr B Maguire
Legal Services Unit
Department of Mineral Resources (NSW)
Counsel for the Respondent Mr P Applegarth SC
(Queensland Board of Examiners)
Solicitor for the Respondent Mr B O'Shea
Crown Law
Department of Justice (Qld)
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