(a) for the purpose of preventing or minimising the potential for the Australian Institute of Building Surveyors and other builder associations to apply for authorisation; and

(b) to prevent the existing Authorised Body from becoming financially unviable.

28 Difficult questions can arise as to what must be established in order to show than an identified proper purpose is sufficient to render the exercise of a power beyond power. In Warringah Shire Council and Others v Pittwater Provisional Council (1992) 26 NSWLR 491, at 509, Kirby P said:

"In the nature of human affairs, it is rare that individuals, still less corporations such as local government authorities, act as they do exclusively for a particular purpose. It is of the nature of human motivation (and still more, if it can be ascertained, the motivation of corporations governed and directed by numerous individuals) that their purposes are complex and multifarious. From this truism a controversy has arisen as to the extent to which an illicit, irrelevant or impermissible purpose for the exercise of statutory powers will render that exercise beyond power, with the serious consequences that follow. In England, the courts have adopted a test which requires the complainant to prove that the 'achievement of the irrelevant, illicit or unlawful purpose was the dominant purpose of the donee of statutory power in doing what it did'. This stringent test has been praised by Professor Wade. See H W R Wade, Administrative Law, 6th ed, (1988) at 439ff. In earlier times a 'sole test' Sydney Municipal Council v Campbell) had been adopted. But this was clearly too stringent. On the other hand, Professor JM Evans, in the 4th edition of SA de Smith's Judicial Review of Administrative Action (1980) at 329, regarded the English test as too stringent: presenting the courts with a 'legal porcupine' which required them to embark upon speculation for which they are ill equipped. In Australia, a different test has been adopted which makes it more difficult to establish the improper purpose ground of review. In Thompson v Randwick Municipal Council, the High Court held that an abuse of power occurs if the purpose of the administrator is an improper one and 'a substantial one' in the sense that no attempt would have been made to exercise the power if it had not been for that purpose. The test has been criticised as internally contradictory: see, eg, M Allars, Introduction to Australian Administrative Law (1990) at 178. It has been suggested that, in Samrein Pty Limited v Metropolitan Water Sewerage and Drainage Board the High Court used language more reminiscent of the English test. But whatever the test, it is difficult to establish an improper purpose."

29 Has the applicant established that the Minister's decision to reject its application was influenced by an improper purpose? The prime purpose of the Building Act is the regulation of those involved in the construction and maintenance of buildings. To that end provision is made for an entity, the Minister, to authorise a body or bodies to accredit building practitioners and to withdraw that authority. A body so authorised is also required by s22(a) to monitor compliance by accredited building practitioners with the Act, Pt4. That Part: contains provisions requiring building practitioners to obtain accreditation, s23(1); obliges an authorised body to audit the work of building practitioners it has accredited, s30(1) and investigate professional misconduct or unsatisfactory professional conduct it finds in the course of an audit, s33(3); and provides for the making of complaints of professional misconduct and unprofessional conduct to an authorised body about a building practitioner it has accredited and empowers that body to investigate and deal with the complaint and impose consequential orders, ss32 - 41. The legislation envisages that an authorised body or authorised bodies will play a significant role in the regulation of building practitioners. Insofar as the Minister is given a discretion as to the authorisation of bodies that satisfy the requirements of s20(1), it can be seen that the Minister should predominantly be influenced in the exercise of that discretion by matters that bear on the appropriate regulation of building practitioners, keeping in mind the concerns of all those who have an interest in that objective. As I have said, the primary reason for the Minister's refusal to allow the applicant to be an authorised body was the fact that another body had already been so authorised and his concern about adverse consequences that could flow from more than one body being empowered to accredit the same category of building practitioner. This is a legitimate concern which is consistent with the purpose of maintaining a sound system for the regulation of building practitioners. In his letter of 23 March 2004, the concerns noted by the Minister in relation to authorising more than one body to accredit the same category of building practitioner include: "Increased consumer cost due to reduced viability of current Authorised Body". In his letter of 15 June 2004, the Minister said:

"Although it may be argued that competition would lower accreditation charges and increase the standard of service provided by the competing Authorised Bodies, such arrangements must be predicated on a much larger number of practitioners seeking accreditation that we have in Tasmania.

Competition in a small market has the potential to render the existing (or both) Authorised Body(s) financially unviable. This is a particularly relevant consideration as I have been advised that if I were to authorise the BPACT application, then the Australian Institute of Building Surveyors would seek to become an Authorised Body to accredit their members. Builder associations have conveyed a similar sentiment."

These comments of the Minister are expressly directed to his concern about detrimental consequences that might flow from approving more than one accredited body, a concern that is consistent with the need to maintain a sound system for regulating building practitioners in accordance with the objectives of the Act.

30 I am not satisfied that the Minister's expression of concern about the viability of the already authorised body and the possibility that the Australian Institute of Building Surveyors and other building associations might apply to be authorised bodies indicates, let alone establishes, that an improper purpose influenced his refusal to approve the applicant's application.

31 The applicant contends that there was no evidence or other material to justify the making of the decision, JRA, s17(2)(h). In its written submissions, the applicant revised this contention to a submission that the Minister had no evidence on which to base his findings concerning:

(a) competition in the market, or the size or viability of the market;

(b) the financial viability of competing authorised bodies;

"The ground mentioned in section 17(2)(h) ... 18(2)(h) is taken not to be made out -

(i) the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and

(ii) there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or

(i) the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and

Plainly s21(a) does not apply so it falls to the applicant to establish that the decision was based on the existence of a particular fact and the fact did not or does not exist. To establish that the decision was based on a particular fact involves establishing that the particular fact was critical to the making of the decision, Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; (1990) 170 CLR 321, Mason CJ at 357 - 358.

33 The JRA, ss17(2)(h) and 21(b) are in similar terms to the ADJRA, ss5(1)(h) and 3(b). As to the latter provisions, Black CJ, agreed with by Spender and Gummow JJ said in Re Curragh Queensland Minding Limited (1992) 34 FCA 212, par36:

"It remains to consider the concluding words of s5(3)(b): 'and that fact did not exist'. Since the ground in s5(1)(h) is a 'no evidence' ground, and since s5(3)(b) requires, in that context, that it be established that the person who made the decision based the decision on the existence of a particular fact as a requirement for making out the ground, the concluding words 'and that fact did not exist' must be taken to impose an additional requirement. In Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 519-521 Wilcox J examined the history and meaning of s5(3)(b). His Honour observed that whilst it might have been thought appropriate to provide for an administrative decision to be struck down where the decision was based upon the assumption of a particular fact of which the decision-maker had no evidence, a deliberate decision was made in drafting the ADJR Act to restrict more tightly the operation of the ground. By reference to the background to the provision his Honour considered that it was understandable that, when Parliament turned to non-jurisdictional findings of fact in s5(3)(b), it required the applicant for review to show more than that there was no evidence before the decision-maker of the fact found, or assumed, as the basis of the decision. The applicant was required to negative the fact and, as his Honour noted, this may constitute a heavy burden, especially where the facts are obscure. But the language of s5(3)(b) shows that its concluding words do impose an additional requirement and the history of the section, discussed by Wilcox J in Television Capricornia, tends to confirm that this is so.

34 Accepting for present purposes that the Minister made findings to the effect of those that are the subject of the applicant's contention that can be categorised as decisions on particular facts, the applicant has not negatived those facts. Whilst that is sufficient to dispose of this contention, I will, deal with portions of the Minister's letters that relate to the findings in contention; they have already been set out in par28 of these reasons. Each of the findings in contention relates to the issue of viability. As to the Minister's comment to the effect that competition in a small market may render more than one authorised body financially unviable, he said that this was "a particularly relevant consideration" as he had been advised that other bodies may also seek authorisation. This statement demonstrates no more than that the Minister's comment was of particular relevance to the issue of viability. It does not show that the issue of viability was critical to the ultimate decision, that is, the Minister's rejection of the applicant's application. Viability was only one of the 11 concerns the Minister listed in his letter of 23 March in relation to authorising more than one accrediting body. Most of the other concerns he listed are more immediate and substantial than his forecast in relation to viability. I am not persuaded that the Minister's views on viability were critical to his ultimate decision. In these circumstances the no evidence contention also fails because the decisions relied upon to found the contention are not the ultimate decision in issue and it has not been established that they are critical to that decision.

35 The final contention advanced by the applicant is that a breach of the rules of natural justice happened relating to the making of the decision, JRA, s17(2)(a). The applicant has detailed five grounds in support of this contention. I will set out each ground before dealing with it:

36 The JRA, ss17(1) and (2)(a) and 18(1) and (2)(a) relate to natural justice. The JRA, s17(1) and (2)(a), and the ADJRA, s5(1)(a), similarly provide that:

"A person who is aggrieved by a decision to which this Act applies ... may apply to the [Court] for an order of review relating to the decision ... on any of the following grounds:

(a) that a breach of the rules of natural justice - happened relating to [JRA] - occurred in connection with [ADJRA] - the making of the decision."

The similarities are much the same between the JRA, s18(1) and (2)(a), and the ADJRA, s6(1)(a), which cover conduct relating to the making of a decision.

37 Whilst the parties approached the applicant's natural justice contention on the assumption that the rules of natural justice apply to the Minister's decision, I note that the JRA, s17(2)(a), of itself, provides no basis for that assumption. In Kioa & Ors v West & Anor (supra) the High Court considered the effect of the ADJRA, and in particular, s5(1)(a) of that Act and confirmed that it imposed no obligation that the rules of natural justice should be observed in relation to every decision to which that Act applied; see Gibbs CJ at 566 - 567, Mason J at 576 - 577, Wilson J at 594 and Deane J at 630. The views expressed by the members of the court in relation to the ADJRA are equally applicable to the JRA, the former Act being the obvious source of many of the provisions in the latter Act. I accordingly approach this matter with the following in mind. Broadly speaking the purpose of the JRA is to simplify and reform the procedure of judicial review, rather than change the substantive law; Gibbs CJ at 567, Mason J at 576 - 577 and Wilson J at 594. An assessment of whether the rules of natural justice apply to any particular decision is to be determined from a consideration of the provisions of the enactment that bestows the decision-making power and the common law; Gibbs CJ at 560 - 566, Mason J at 576 - 577 and 584 and Brennan J at 609 and 611. The rules of natural justice are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise, that is, procedural fairness, a term that conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case; Brennan J at 622 and Mason J at 585.

38 Consistent with the parties' assumption, I am satisfied that the rules of natural justice apply to the decision in question. However, the applicant's contention in relation to this ground appears to have been drawn in the expectation that the stringent requirements that are commonly imposed on a decision-maker in respect of disciplinary proceedings where the law requires that the subject of the proceedings should be given notice of what is alleged and the findings which might be made, apply to the decision of the Minister. As to those stringent requirements see Yung v Adams (1997) 150 ALR 436. I am not satisfied that the demands of fairness impose such a broad and onerous burden on the Minister in relation to the procedure to be followed in the making of his decisions. Paraphrasing the words of Brennan J in Kioa at 612 and 615: the principles of natural justice have a flexible quality which, chameleon-like, evoke a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power; in some circumstances the contents of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred.

39 I turn to the issue of whether the procedures adopted by the Minister in relation to his decision were unfair and amounted to a breach of natural justice.

(a) Having decided to take into account the modern trend to include non-affiliated consumer representation in accreditation bodies, the Minister failed to provide the applicant with any, or any sufficient opportunity to provide evidence or make submissions in relation to that issue.

(b) Having decided to take into account that the mix of the applicant's office bearers did not achieve the objectives of enhancing consumer protection and was therefore not in the public interest, the Minister failed to provide the applicant with any, or any sufficient opportunity to provide evidence or make submissions in relation to that issue.

40 The Guidelines for schemes for the accreditation of building practitioners approved by the Minister, pursuant to the Building Act, s20(5), included advice that committees dealing with matters such as accreditation, audits and complaints needed to have "appropriate external representation". In his letter of 23 March 2004, the Minister informed the applicant, "I ... believe that Authorised Bodies need to function in a manner that ensures independence from interest groups and operate in a manner that is fair, open and transparent. This must be considered in the light of the rights and perceptions of Accredited Building Practitioners and consumers". In my view the applicant was given sufficient opportunity to address the desirability of including appropriate non-affiliated consumer representatives within its organisation and the appropriateness of the mix of its office bearers. The applicant responded to the Minister's letter by defending its structure as detailed under the last heading in the attachment to its letter to the Minister dated 8 April 2004. In explaining his decision in his letter of 15 June 2004, the Minister listed the members of the applicant's Board and observed: "I am of the view that this mix of office bearers does not achieve the objectives of enhancing consumer protection and is therefore not in the public interest." That observation was well within the ambit of the concerns about which the Minister had made the applicant aware. Failure to accord natural justice cannot be substantiated on the basis of grounds (a) and (b).

(c) Having decided to take into account the size of the market for accreditation bodies and the potential effect on their financial viability, the Minister failed to provide the applicant with any, or any sufficient opportunity to provide evidence or make submissions in relation to that issue.

41 In his letter of 23 March 2004, the Minister expressly, albeit obliquely, raised the issue of viability when he identified one of the potential problems that arose from the authorisation of more than one accrediting body as being: "Increased consumer cost due to reduced viability of current Authorised Body". Plainly the size of the market was relevant to that concern. The applicant's response in relation to this issue is set out under the penultimate heading in the attachment to its letter to the Minister dated 8 April 2004. In brief the applicant said that competition was in the best interests of the community and that if competition reduced the viability of the existing Authorised Body, then it should review its pricing policy. In my view the applicant had adequate notice of the Minister's concerns about viability. Ground (c) cannot sustain a finding that the Minister failed to accord the applicant natural justice.

(d) The Minister failed to give the applicant any, or any sufficient opportunity to make submissions on the correct construction of the Building Act, s20(2).

(e) The Minister failed to provide the applicant with any, or any sufficient opportunity to provide evidence, or make submissions in relation to any conditions that might be imposed under the Building Act, s20(3).

42 The second and third paragraphs of the Minister's letter of 23 March 2004 provided the applicant with notice of the manner in which the Minister viewed his obligations under the Building Act, s20(2). Thereafter the applicant had ample opportunity to make submissions to the Minister in relation to a contrary construction of that provision. Similarly the applicant had ample opportunity to provide evidence or make submissions to the Minister in relation to conditions that he might impose under the Building Act, s20(3), but did not do so. These grounds provide no basis for a finding that the applicant was denied natural justice.

(f) The Minister did not provide the applicant with an opportunity to respond to:

* his findings concerning the mix of office bearers;

* his views concerning the size of the market, or the viability of the Tasmanian Compliance Corporation or his expectations of applications from other bodies.

43 As to the first dot point, I am unpersuaded that the dictates of procedural fairness required that the applicant be given an opportunity to comment on the NCC staff discussion paper. The Minister's reference to that paper in his letter of 15 June 2004 related to matters within the ambit of concerns that he had raised in his letter of 23 March 2004. The paper did not relate to the primary reason for the Minister's rejections of the application, his concern about authorising more than one accrediting body. The Minister's failure to afford the applicant an opportunity to comment on the paper did not amount to a denial of natural justice. The matters raised in the second and third dot points of this ground have been dealt with in my reasons in relation to grounds (a), (b) and (c).