Building Professions Accreditation Corporation Tasmania Ltd v Minister for Infrastructure Energy and Resources [2005] TASSC 73 - TASSC 2005 case summary — Zoe

[7]

"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."

[8]

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:

Parties

Applicant/Plaintiff:

# Building Professions Accreditation Corporation Tasmania Ltd

Respondent/Defendant:

Minister for Infrastructure Energy and Resources \[2005\] TASSC 73

Legislation Cited (2)

Justice Legislation (Miscellaneous Amendments) Act 2000

Review Act 2000

Cases Cited (23)

Building Professions Accreditation Corporation Tasmania Ltd v Minister for Infrastructure Energy and Resources [2005] TASSC 73 (5 August 2005)

This provision is an express statement to the effect of that which is implied by the common law. An interpretation provision ordinarily applies "unless the contrary intention appears" even if that phrase is not contained in the provision; Knightsbridge Estates Trust, Ltd v Byrne [1940] AC 613 at 621, Transport Accident Commission v Treloar [1992] 1 VLR 447 at 449, and Buresti v Beveridge (1998) 158 ALR 445 at 447. It may be manifest from legislation, having regard to its language, the context of the relevant provisions and its general scope, purpose and object, that although the word "may" has been used to confer an authority, the authority must be exercised if the circumstances are such as to call for its exercise; Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134 - 135 and Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140 at 152 [32]. Cole v Esanda Ltd [1982] Tas R 130 is a case where this approach to the construction of legislation resulted in a finding that the forfeiture of a boat in the possession of a person who contravened the provisions of the Fisheries Act 1959 was a mandatory and not a discretionary consequence of that contravention notwithstanding the use of the word "may" in a provision of that Act which dealt with the court's power to make a forfeiture order.

13 As recognised in the proposition advanced by the applicant, statutory provisions such as s20(g) are intended to adopt the principles developed by the common law in relation to the judicial review of administrative decisions alleged to be unreasonable; see Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 167 and more generally Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550. A helpful discussion of the common law principles is contained in Wednesbury (supra) where Lord Green MR at 231 - 233 emphasises that the court's role is not to decide what is reasonable or unreasonable, its task being to decide whether a decision which is prima facie within the power of the decision-maker is one that no reasonable decision-maker, acting within the four corners of the decision-maker's jurisdiction, could have made. At 230 he said:

When assessing whether an exercise of power is unreasonable for the purposes of s20(g), the following passage from In Re W (An Infant) [1971] AC 682, Lord Hailsham, at 700, should be borne in mind:

14 Of more general assistance in relation to the role of a court reviewing an administrative decision is the decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. In that case, after quoting a passage from the decision on appeal in which the Full Court had said that the reasons of the decision-maker under review were entitled to a beneficial construction, Brennan CJ, Toohey, McHugh and Gummow JJ, at 271 - 272, said:

22 For the ground of failing to take into account a relevant consideration to be made out, it is necessary to establish that the decision-maker failed to take into account a consideration which the decision-maker was bound to take into account. The factors a decision-maker is bound to consider are determined by construing the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the Court to determine whether those enumerated factors are exhaustive or merely inclusive; see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985 - [1986] HCA 40; 1986) 162 CLR 24, Mason J at 39. In this case it is plain that compliance with s20(1) was a consideration that the Minister was bound to take into account. This matter is raised in consideration (c) above. It is unnecessary to explore whether the Minister was also bound to take into account any of the other considerations enumerated by the applicant, as for the reasons that follow I do not accept that Minister did not pay regard to them. As to consideration (c), I have already found the degree to which the applicant satisfied the requirements of s20(1) was relevant to the exercise of the Minister's discretion, and in my view it is plainly apparent from his correspondence that he took that into account. As to consideration (e), it is also plain that the Minister recognised that s20(2) contemplated that it was possible to authorise more than one body to accredit the same category of building practitioner. In the second paragraph of the Minister's letter of 23 March 2004, he expressly referred to that power when explaining that he was not obliged to approve the applicant's application. The detailed attention the Minister gave to the application demonstrates that he was well aware that he could approve it, even though the Tasmanian Compliance Corporation had already been approved as an accreditation authority. The failure of the Minister to expressly advert to considerations (a), (b) and (d) does not mean that he did not pay regard to them. In this regard I adopt the approach taken to an appeal against sentence when the sentencer has not expressly adverted to some relevant matters; see A46/1974, Green CJ and Chambers J at 1. In the absence of any indication to the contrary, I conclude that the Minister was well aware that the applicant would be required to act according to the law and that he was aware of the provisions of the Act as to: his right to approve applications subject to conditions; appeals; and reviews.

25 As to relevance, in a case such as the present a problem lies in ascertaining what are the proper limits of the discretion. In R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 the High Court said, at 49 - 50:

"In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view', to use the words of Dixon J in Browning (1977) 74 CLR, at p 505 . In that case his Honour went on to remark, (as he had done earlier in Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746, at p 758), 'on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power'.

(1998) 158 ALR 445

(1971) 127 CLR 106

(2002) 209 CLR 140

(1985) 6 FCR 155

(1985) 159 CLR 550

(1984) 54 ALR 65

(1996) 185 CLR 259

(1993) 43 FCR 280

(1981) 38 ALR 363

(1979) 144 CLR 45

(1937) 56 CLR 746

(1992) 26 NSWLR 491

(1990) 170 CLR 321

(1986) 13 FCR 511

(1997) 150 ALR 436

Building Professions Accreditation Corporation Tasmania Ltd v Minister for Infrastructure Energy and Resources [2005] TASSC 73

At a glance

Court

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Catchwords

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Judgment (43 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (23)

Building Professions Accreditation Corporation Tasmania Ltd v Minister for Infrastructure Energy and Resources [2005] TASSC 73 (5 August 2005)