"The applicant sought to show that this approach to construction might have "a number of unattractive consequences". It suggested that an applicant confronted with a lengthy investigation process could continuously file applications during the course of that process as more equipment had been acquired, further employees' [sic] retained or further clients identified. As the applicant's eligibility position improved from month to month, it could file a succession of applications. It was suggested that it could not have been the legislative policy to encourage multiple overlapping applications.
Whilst I recognise the practical difficulties that could emerge from such a procedure, the argument does not seem to me to go to the proper construction to be put on the subsection according to its own terms. There is just as much substance in the respondent's submission that the subsection may have been designed to avoid the very situation to which the applicant points.
It may well have been designed to discourage a mere shell of an applicant lodging an application and then building up its eligibility qualifications over the investigation period until such time as it could claim total compliance with the criteria."
23 The Tribunal derived little help from the object of the IRD Act which, as set out in s 3, is to promote the development, efficiency and international competitiveness of Australian industry by encouraging research and development activities. The Tribunal found the provision for cancellation of registration in s 39G of more assistance, noting that the power to cancel registration "may well indicate that criteria may be met obliging the Board to register an applicant but as circumstances change in an applicant's activities, the question of cancellation of registration is to be considered."
24 The IRD Act provides if an Australian research agency meets the criteria formulated under s 39F(2) it is entitled to registration; s 39F(4). Moreover, a research agency is only entitled to remain registered while it continues to meet the relevant criteria; s 39G(2). Under s 39F(6) the respondent has power to vary the class of Australian research and development activities in respect of which an agency is registered but it may not exercise this power unless it "is satisfied that the agency is qualified to perform those additional activities"; s 39F(7). Section 39F(7) makes clear that the respondent is not entitled to exercise its power to vary the class of Australian research and development activities in respect of which an agency is registered in a way that would jeopardise the ability of a registered agency to continue meeting the criteria for registration.
25 The IRD Act expressly states that the registration of an Australian research agency such as the applicant is to take effect "on and from" the date on which its application for registration is received by the respondent; s 39F(5). It does not, however, make any express statement about the date by which the criteria laid down by the respondent must be met. The Tribunal accepted, correctly in my view, the general approach identified by Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329 at 333 where his Honour said:
"[T]he general approach of the tribunal has been to regard the administrative decision making process as a continuum and to look upon the tribunal's function as a part of that continuum so that, within the limits of a 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. That function was enunciated in Re Tiknaz and Director-General of Social Services (1981) 4 ALN No 44. The approach there taken has since been generally adopted."
26 As Hill J pointed out in Akai however, it is necessary to determine whether the Act gives any indication that the decision as to registration has to be made by reference to a particular point in time. If so, facts occurring after that date cannot be taken into account. The Tribunal interpreted s 39F(5) as providing such a point in time. The Tribunal based this conclusion on its understanding of the purpose of s 39F(5) as being:
"intended to confer benefits on applicants where the investigation of their claims (as in this case) was lengthy. … If the applicant was ultimately successful, then it was deemed to have the benefits of registration retrospectively to the date on which the application was received by the Board."
27 I do not disagree with this statement of the purpose of s 39F(5). The Tribunal, however, concluded that this purpose made the date the application was received by the respondent the relevant date for considering the application "as it was the date on which the Board would have continued to focus over the 15 months of its investigation." With respect, there appears to be circularity in this reasoning. The respondent would be required to focus on the application date only if that date were the date by which the criteria are to be met. Logically it is not valid to use the statement that the respondent would focus on the application date as a premise in the argument, the conclusion of which is that the application date is the date by which the criteria are to be met.
28 Before me, as before the Tribunal, the applicant submitted that s 39F(1) indicates that the application is concerned with something that is to be done in the future and is therefore consistent with the conclusion that the criteria do not have to be met at that point in time. I am not convinced by this submission. The words, "an Australian research agency for the purpose of performing a particular class of Australian research and development activities on behalf of registered eligible companies" might just as well be seen as a compound description of the type of research agency with which the subs (1) is concerned. Some support for the applicant's position can be found in subs (4), which uses the present tense in requiring the respondent to be satisfied that the "applicant" (rather than the application) meets the criteria and "is qualified to perform" the relevant activities. Subsection (4) is also subject to s 39F(9) which recognises that the respondent may need to make inquiries as to an applicant's qualifications. It is implicit in s 39F(4) and s 39F(9) that, irrespective of whether an applicant met the criteria at the date of the application, if the respondent found that as a result of events occurring since that time the applicant was no longer able to meet the criteria then it would not be eligible for registration. It might be expected that if the legislature intended that the respondent ignore any improvement in an applicant's qualifications occurring after the date of the application this would have been made explicit.
29 The applicant also put an argument as to the "unattractive consequences" of the respondent's view. Like the Tribunal, I do not find this argument convincing. As the Tribunal said, there is as much substance in the opposing scenario painted by the respondent. The position is that the IRD Act gives little, if any, guidance as to the date by which the criteria for registration must be met. I am certainly unable to discern any support for the respondent's position that the Act requires the decision to be made with reference to a particular point in time.
30 The respondentsubmitted that any view other than that the criteria must be met by the date of the application would result in a body being "validly registered at a time before it met the statutory criteria." Strictly speaking this is correct but as it could only occur once the criteria have been met it would not render the criteria otiose. I do not accept that in this limited sense such a result would be so inconsistent with the purpose of the legislation that the possibility should be rejected.
31 The object of the Act is to promote the development, improved efficiency and international competitiveness of Australian industry by encouraging research and development activities; s 3. Registration (with its attendant advantages) is a means of facilitating that object and a central concern is the necessity for an applicant to meet the criteria before being registered and while remaining registered. I am unable to see how the conclusion that the criteria must have been met at the date of application is any more consistent with the purpose of the Act, or with the promotion of registration as a means of facilitating that purpose, than a conclusion that the criteria must have been met at the date of the respondent's decision or the date of the Tribunal's decision. I see no inconsistency between the policy of the Act and the possibility that an applicant may become registered having met the criteria for registration after the date its application was made.
32 For these reasons I find that the Tribunal was in error in not deciding the question of the applicant's entitlement to registration on the basis of the facts before it, including evidence of events that occurred after the date of the application to the respondent. The matter should therefore be remitted to the Tribunal for further consideration. Having come to this conclusion, question (b) in the notice of appeal (see [10] above) does not arise.