Agapis v Plumbers Licensing Board

background 1 The Water Services Licensing Act 1995 (WA) (the Act) regulates the licensing of plumbers in Western Australia. Section 59 and s 59B of the Act establish the respondent as the authority concerned with and responsible for the licensing and regulation of plumbers in Western Australia. Plumbers are also regulated by the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA) (the Regulations). The Regulations are made pursuant to s 59J and s 61 of the Act. 2 Regulation 9(1) requires every plumber to have a licence or permit issued by the respondent which authorises them to carry out work. It is an offence to contravene this regulation. Regulation 11 identifies the classes of licences and permits that the respondent may issue. Relevantly, this includes a plumbing contractor's licence. A plumbing contractor's licence authorises the holder to carry out various types of plumbing work. A person undertaking such work without a licence would contravene reg 9 of the Regulations. 3 On 3 March 2011, the applicant held a contractor license for plumbing, roof plumbing, draining, gasfitting and LP gasfitting in New South Wales, under the Home Building Act 1989 (NSW). On that date, the applicant applied to the respondent for a plumbing contractor's licence pursuant to s 19 of the Mutual Recognition Act 1992 (Cth), which applies in Western Australia by reason of the Mutual Recognition (Western Australia) Act 2010. 4 By the operation of s 17(2) of the Mutual Recognition Act 1992, reg 17(1) of the Regulations applied to the applicant's application for a plumbing contractor's licence to work in Western Australia. This regulation required an applicant for the licence to be a fit and proper person. 5 The application form for the plumbing contractor's licence completed by the applicant required the applicant to disclose whether he had been convicted or found guilty of any offence; and whether there were any charges pending against him. The applicant answered each question "No". The answers were false because the applicant had been convicted of four offences in New South Wales and also the applicant was then facing charges of aggravated burglary and common assault in Western Australia. The applicant was subsequently convicted of burglary in the District Court of Western Australia and sentenced to a term of one year and three months imprisonment suspended for two years. 6 By a letter dated 28 April 2011, the respondent advised the applicant that his application for a plumbing contractor's licence had been refused. The letter stated that on 27 April 2011, "the Board resolved that you are not a fit and proper person to hold a plumbing contractor's licence" due "to inaccurate and insufficient information" having been provided to the Board in respect of that requirement. 7 On 15 June 2012, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) to set aside the decision of the respondent. The decision of the respondent can be reviewed by the Tribunal pursuant to s 34 of the Mutual Recognition Act 1992. 8 On 28 March 2013, Senior Member Penglis affirmed the respondent's decision to refuse to issue the applicant a plumbing contractor's licence, concluding that the applicant was not a "fit and proper person" to hold the licence for which he had applied (Agapis v Plumbers Licensing Board [2013] AATA 187).

What is the answer to the question of law? 20 The question of law posed by the applicant is answered in the negative. 21 This is because this question has been considered and determined by the Full Court (Bowen CJ, Smithers and Deane JJ) in the case of Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, in a manner adverse to the applicant's contention. 22 In that case, the Full Court considered a contention that the conferral upon the Tribunal of quasi-judicial functions was beyond the legislative competence of the Parliament because it thereby purported to confer part of the judicial power of the Commonwealth upon a Tribunal that was not a court constituted pursuant to Ch III of the Constitution. 23 The Full Court rejected the argument. At 584, the Full Court observed: The general functions conferred upon the Tribunal are plainly administrative in character…Neither the fact that the Tribunal possesses certain procedural powers ordinarily enjoyed by courts nor the fact that the Tribunal is authorized to decide questions of law arising in the proceedings before it means that, in performing these administrative functions, it is exercising judicial power. (Footnotes omitted.) 24 The applicant relied, in his formulation of the question of law, upon the case of Lane v Morrison (2009) 239 CLR 230. However, that case dealt with the conferral of powers upon the Australian Military Court and provides no assistance in answering the question of law which was formulated by the applicant. 25 As mentioned, the allegations and assertions included under the heading of "Grounds relied on" insofar as they can be understood, travel beyond the scope of the question of law and, therefore, do not fall for consideration. 26 It follows that the applicant's appeal is dismissed. 27 However, I will, for the sake of completeness, refer to a complaint which was made by the applicant, which was the subject of an interlocutory skirmish between the applicant and the respondent. 28 This was the applicant's contention that the respondent had not demonstrated that there was a statutory basis for requiring the applicant to have a plumbing contractor's licence issued under the Act and Regulations in order to carry out plumbing contractor's work in Western Australia. In my view, there is plainly a statutory basis for requiring the applicant to have such a licence in order to carry out plumbing contractor's work in Western Australia. The relevant statutory provisions are comprised by ss 59, 59B, 59J and 61 of the Act and regs 9, 11 and 12 of the Regulations. There is no substance in the applicant's complaint. 29 As I mentioned, the applicant's appeal is dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

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