WHETHER JUDICIAL POWER
42. As we have already said, the regime described above can fairly be characterised as a licensing regime. That is not to usurp the relevant enquiry, but rather to describe the regime with tolerable accuracy. The registration of liquidators has, at its foundation, the requirement for requisite skill and probity: see s 1282. Section 1292 is directed to these same matters. Each section is enlivened by considerations of satisfaction and the issues on which satisfaction is required are entrusted to bodies with appropriate professional skills to make informed decisions. Section 1292(2)(d) directs an enquiry as to whether, amongst other things, duties have been adequately and properly carried out in the past. It is not expressed in terms of a general enquiry as to whether the person is fitted by skill and character to remain a liquidator. Nevertheless, an enquiry whether the person has in the past failed to perform or carry out his or her duties adequately and properly can be seen as a reasonable surrogate for an enquiry as to the fitness of the person, especially considering its place in s 1292(2) and all the terms of s 1292(2). The satisfaction of the Board that the liquidator has failed in his or her duties in the past enlivens the power of the Board to deal with the registration. In the exercise of such power, it will be a matter for the Board to take into account, in accordance with the structure, terms and purpose of the Corporations Act, such considerations as it considers to be relevant to that course of action. That the enquiry as to the past is seen as a guide to whether the person is fit and proper to remain registered as a liquidator can be seen by the phrase at the end of s 1292(2)(d):
or is otherwise not a fit and proper person to remain registered as a liquidator.
43. The only consequence of the exercise of the power conferred by s 1292(2) is to cancel or suspend a statutory right that is itself conferred by the Corporations Act, or, to take a step contemplated by s 1292(9). The right embodied in registration is conferred subject to the power to cancel or suspend and is expressly stated to last until cancelled or suspended. The exercise of the power deprives a person of nothing that had not been conferred on that person by the grant of the voluntary application made by the person to be a registered liquidator.
44. The purpose or object of the enquiry undertaken by the Board, in exercising the power conferred by s 1292(2), is not the ascertainment or enforcement of any legal right, but the determination whether, in the view of the Board, taking into account past failures of duties, a defeasible right should continue into the future. No punishment is imposed by reason of any conclusion that duties or functions have not been carried out or performed adequately and properly. Rather, upon being satisfied of past failures of duty, the Board is empowered to deal with the continued existence of a statutory right. The only consequence of the making of an order under s 1292(2) is that the registration of the liquidator ceases, either permanently or for so long as a suspension may be in force. If a failure to carry out or perform duties or functions properly and adequately constitutes a contravention of the Corporations Act or of any other provision, that is not the matter, relevantly, for the Board to decide. Even if the Board were to conclude that there had been a failure to carry out and perform relevant duties and functions adequately and properly, and even if it be the fact that that failure constituted a contravention of the law, the punishment of that contravention would be a matter for an entirely different tribunal, namely, a court exercising an entirely different species of power, namely, judicial power.
45. The exercise of power under s 1292(2)(d) does not turn on the Board being satisfied as to a legal standard. It may be that the failure to carry out and perform a relevant duty or function is an offence. However, that is not what the Board is called upon to determine by the terms of s 1292. The question of the adequacy and propriety of the carrying out or performance is to be judged by the Board by making an evaluative or subjective determination. Having made that evaluative or subjective determination, the Board will consider whether the rights of the registered liquidator as to the future are to be changed by the exercise of the power under s 1292(2) in the light of all the considerations before it that are considered relevant.
46. The relevant tripartite taxonomy of governmental power: power appropriate to be exercised exclusively by the judicial branch, power appropriate to be exercised exclusively by the executive branch and power appropriate to be exercised by either the judicial or executive branch was illuminated by Isaacs J in British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1926) 38 CLR 153 (the "Second BIO case"), esp at 174-81. Underpinning this division lie historical notions as to the appropriate distribution of governmental power in society and the need for the workable functioning of government in the broad sense. In relation to powers which may be exercised either by a court or by the executive, "the character of the function takes its colour largely from the primary character of the functionary, and depends also on how the decision is made binding and how enforced": the Second BIO case at 177. This is not just a matter of labelling. It concerns how power is exercised and with what aim and consequence, in order to understand what species of power is being exercised: Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189; Re Ranger Uranium Mines; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 665-66; R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 628; and R v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 at 305. It is important in this enquiry to recognise that it relates to the nature of governmental power. It is not an enquiry limited to derivation of conclusions from a priori reasoning, though such analysis is, of course, an essential part of the process.
47. This "functional analysis" (for which expression see HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at 562) is deeply entrenched in Constitutional analysis in this field: see the above cases and see also Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd (1959) 101 CLR 652; R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1; Cominos v Cominos (1972) 127 CLR 588 at 606-607; Re Dingjian; Ex parte Wagner (1995) 183 CLR 323 at 360; Sue v Hill (1999) 199 CLR 462 at 481-82; and Pasini v United Mexican States (2002) 209 CLR 246 at [12].
48. If one takes the exercise of power here - that is to terminate or suspend a right or status, created by statute, by reference, in part, to past conduct - it can be readily accepted that a court might do this or an administrative tribunal might do this. This is not a power which is inherently judicial. The character of the Board, the undoubted bringing to bear by the Board of professional standards (with the knowledge of which its members can be taken to be imbued), an absence of an assigned task of deciding a controversy between parties as to the existence or not of present mutual rights and obligations of those parties upon the application of the law to past events, the exercise of an evaluative and discretionary power in the protection of the public as to whether a person is fit and proper to continue to hold a position of importance provided for by the statute, all combine to give the conclusion that the conferral on the Board of the power in s 1292 is not judicial.
49. It is simply wrong to conclude from Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 or Rich v Australian Securities and Investments Commission that somehow the tasks of the Board are to decide upon existing rights and obligations by application of law to past events and to punish consequentially upon those findings. The consequence of the satisfaction of the Board that the person has failed to carry out or perform adequately or properly his or her duties in the past (which may or may not involve examination of, or conclusions as to, facts which, if found, would amount to an offence) is to enliven the power to take one of the steps provided for by s 1292(2) and (9). The exercise of that power might depend on other considerations considered by the Board beyond the question of past failure to perform duties. If steps are taken, they may alter or end an existing legal right for the future. If they do, that can be seen as no more than a change to the right, the potential for which change was immanent within the original grant of the right. The distinction between deciding whether a legal right created by the statute should exist in the future, and deciding what legal rights or obligations in fact exist is fundamental: Re Ranger Uranium at 665-66; Precision Data at 189; Brandy at 268; and Luton v Lessels (2002) 210 CLR 333 at [22] and [67].
50. The function of the Board is not, as was submitted, to find (as an exercise of deciding present rights and obligations in the above sense) whether an offence has been committed and, if so, to inflict a punishment therefor. It is, as we have said, to assess whether someone should continue to occupy a statutory position involving skill and probity, in circumstances where (not merely because) the Board is satisfied that the person has failed in the performance of his or her professional duties in the past. Messrs Gould and Albarran say that punishment or a penal or harmful consequence is finally inflicted on the person consequent upon the finding of the committal of an offence prescribed by law. That is not what s 1292(2) says the function of the Board is. It is not, in substance, what the Board does.
51. The procedural indicia set out in Part 9.2 division 3, taken individually or together, do not change the character of the power. In particular, the fact that an order is made or that costs can be awarded does not change the substance of the Board's task set out above, and the formality of the hearing and the power to adduce evidence likewise are not incidents of power limited to courts.