Bungree Aboriginal Association Limited v NSW Registrar of Community Housing

General or external appeal jurisdiction

The Tribunal exercises different types of jurisdiction and Part 3 of the NCAT Act deals with the jurisdiction of the Tribunal. The jurisdiction of the Tribunal consists of the general jurisdiction, the administrative review jurisdiction, the appeal jurisdiction and the enforcement jurisdiction. Under s 29(1) the Tribunal has general jurisdiction over a matter if: 1. legislation (other than the NCAT Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and 2. the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.
Both parties agree that the decision made by the Registrar does not fall within the administrative review jurisdiction of the Tribunal. The enforcement jurisdiction does not arise for consideration.
In its appeal jurisdiction the Tribunal has external and internal appeal jurisdiction. Under s 31 of the NCAT Act the Tribunal has external appeal jurisdiction over a decision made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision.
Section 25 of the National Law provides for an "appeal" to the Tribunal from certain decisions of the Registrar. In essence, the respondent argues that, as s 25 uses the word "appeal", this appeal is an external appeal within the meaning of s 31 of the NCAT Act. The respondent refers to the decision in CTG v NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60 at [19]-[20] where the relevant national legislation made no reference to the term "appeal" but used the language "external review". In those circumstances the Tribunal held that it was exercising its review functions rather than its appeal functions. The respondent states that the converse is also true, and this matter falls within the external appeal jurisdiction of the Tribunal and is therefore excluded from the Tribunal's general jurisdiction by virtue of s 29(1)(b).
Bungree notes that the purpose of the National Law is to provide for a national system of registration, monitoring and regulation of community housing providers. As each state and territory has its own administrative body with its own legislative framework, Bungree states that it is unsurprising that the National Law would adopt the language of "appeal" as a means to trigger the review powers in each jurisdiction. Bungree refers to the relevant provisions in the legislation in the Australian Capital Territory (ACT), Queensland, South Australia and Tasmania.
In South Australia clause 5 of the South Australian Civil and Administrative Tribunal Regulations 2015 provides that a decision under the National Law falls within the review jurisdiction of the South Australian Civil and Administrative Tribunal. In Queensland, provisions of the National Law were incorporated into the Housing Act 2003 (Qld). Under that Act an entity may apply to the Housing Chief Executive for a review of the decision by the Registrar to cancel the registration of a registered provider. This appears to be essentially a form of internal merits review. In the ACT the "Appeal Tribunal" means the ACT Civil and Administrative Tribunal. As the legislation governing that Tribunal does not contain any provisions dealing with external appeals, it appears that the Tribunal deals with these matters in its administrative review jurisdiction. In Tasmania, the relevant legislation is the Magistrates Court (Administrative Appeals Division) Act 2001 (Tas). That Act specifically states that a review of the decision by the Court is to be by way of hearing de novo (s 64).
In light of the fact that "appeals" from decisions under the National Law in the above jurisdictions proceed by way of a rehearing or de novo hearing, Bungree argues that it would be an incongruous outcome if under the national regime NSW was the only jurisdiction in which a hearing under s 25 of the National Law was not a hearing de novo or a rehearing. However, the analysis by reference to the appeal or review provisions applying in other states and territories is not particularly helpful. The relevant state and territory legislation referred to by Bungree employ different terms applicable to their own legislative and review body environment. Indeed, for example, the ACT Tribunal does not have an "external appeal" jurisdiction. Furthermore, in Queensland, the appeal to the Housing Chief Executive for a review of a cancellation decision is essentially a form of internal merits review. It is clear that in each state and territory the "appeal" from a decision of the Registrar has been adapted to suit local circumstances.
Bungree points out that when the National Law was introduced, the relevant "Appeal Tribunal" in NSW was the Administrative Decisions Tribunal (ADT). In the Administrative Decisions Tribunal Act 1997 (NSW) there was no such thing as an "external appeal". The ADT had the power to make original decisions and to review reviewable decisions. It is apparent that the ADT would not have been exercising its power to make original decisions in appeals under the National Law. Bungree therefore submits that it was envisaged that an appeal under the National Law would be by way of a review by an administrative tribunal. While there may be some force to this submission, it does not assist in determining the nature and scope of the appeal to this Tribunal. In any event, as was noted in Tasty Chicks Pty Limited v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 245 CLR 446, the nature of a "review" is a creature of statute and its nature may vary.
I agree with the submissions of Bungree that, in general, the relevant legislation in the other jurisdictions referred to makes plain that an "appeal" in this context is by way of rehearing or a de novo hearing. Neither the NCAT Act nor the Adoption Act, however, make any reference to the powers of the Tribunal on appeal from a decision of the Registrar.
Bungree submits that because there is some ambiguity in the use of the term "appeal" and because the relevant legislation is silent on the form or nature of such an appeal, the appeal, in the language of s 29(1)(b), "does not otherwise fall within" the other jurisdictions of the Tribunal. There is therefore nothing in the National Law prohibiting the Tribunal from exercising its jurisdiction under s 29 of the NCAT Act, that is, in the general jurisdiction. In support of this submission Bungree refers to s 38(1) of the NCAT Act which provides that "The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision". It is unclear to me how a single provision relating to the procedure of the Tribunal is relevant to whether the Tribunal is exercising power in its external appeal or general jurisdiction. While an examination of procedural and other features of the Tribunal may be a useful guide to how the Tribunal should exercise its powers in a particular jurisdiction, a single procedural provision is highly unlikely to be determinative of the nature of the Tribunal's jurisdiction.
The better view, in my opinion, is that submitted by the respondent that, by analogy with the Tribunal's findings in CTG v NSW Department of Education, Early Childhood and Care Directorate (as recently followed in Two Cubed Pty Ltd v Secretary of the Department of Education NSW [2019] NSWCATAD 122 at [17] discussing the Children (Education and Care Services) National Law (NSW) which provides for "external review") the reference to "appeal" rather than "review" is a strong indication that this "appeal" is an external appeal within the meaning of s 31 of the NCAT Act.

Nature of an external appeal

Section 79 of the NCAT Act provides as follows: 79 Making and determination of external appeals (1) An external appeal may be made to the Tribunal by a person entitled to do so under enabling legislation on such a basis or grounds, or in such circumstances, as may be provided by that legislation. (2) In determining an external appeal, the Tribunal may: (a) in the case of enabling legislation that specifies the orders that may be made by the Tribunal on the appeal - make any of those orders, or (b) in any other case - make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (i) the appeal to be allowed or dismissed, (ii) the decision under appeal to be confirmed, affirmed or varied, (iii) the decision under appeal to be quashed or set aside, (iv) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (v) the whole or any part of the case to be reconsidered by the decision-maker whose decision is under appeal, either with or without further evidence, in accordance with the directions of the Tribunal.
The nature and extent of the Tribunal's external appeal jurisdiction with respect to an appeal from a decision under than National Law is a matter of statutory construction. The principal categories of appeals were described in Fox v Percy [2003] HCA 22; 214 CLR 118 at 124: Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word "rehearing". The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term "appeal", or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.
While the High Court in Fox v Percy was referring to appeals in relation to courts, the same broad principles apply to tribunals (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 202 - 203). The High Court noted in Dwyer v Calco Timbers Pty Ltd [2008] HCA 13 at [2] that the categories of appeal set out in Fox v Percy "cannot represent a closed class and particular legislative measures… may use the term 'appeal' to identify a wholly novel procedure or one which is a variant of one or more of those just described."
Bungree notes that the orders provided for by s 79 provide for the same relief as those in s 43 of the Administrative Appeals Tribunal Act 1975 (Cth). Bungree refers to the case of Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 as authority for the proposition that s 43 confers "merits review" jurisdiction on the Commonwealth Administrative Appeals Tribunal. The Court's decision in Shi, however, stated at [25] that general provisions such as s 43 need to be read in conjunction with the specific provisions of the enabling legislation, in that case the Migration Act 1958, in order to determine the ambit of the review in question and the manner in which it should be conducted. As was pointed out by the authors in Control of Government Action: Text, Cases & Commentary (R Creyke, J McMillan and M Smyth, Fourth Edition, LexisNexis Butterworths, 2015), the main point emphasised by the High Court in Fox v Percy, Coal and Allied and Shi is: …that the extent of the statutory appeal must be discerned from the terms of each statute, taking account of the nature of the appeal body and the decision under appeal, the grounds of appeal and the powers of the appeal body. Two issues that arise prominently in the cases are whether the appeal body can receive fresh evidence and, allied to that, whether the function of the appeal body is to correct error or to make a fresh determination.
In support of its contention that in an appeal from a decision of the Registrar the Tribunal is to hear the matter afresh, Bungree refers to the procedural matters set out in Part 4 of the NCAT Act. In particular, Bungree refers to: 1. the requirement in s 38(2) of the NCAT Act that the Tribunal is not bound by the rules of evidence and may inform itself in any manner it thinks fit, subject to the rules of natural justice; 2. that the Tribunal is to act with as little formality as the circumstances of the case permit and according to good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 38(4)); 3. that the Tribunal is to take such measures as are reasonably practicable to ensure that the parties to the proceedings before it understand the nature of the proceedings, and, if requested to do so, to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s 38(5); and 4. in accordance with s 38(6) the Tribunal is to ensure that all relevant material is disclosed to it so as to enable it to determine all of the relevant facts in issue in any proceedings.
Bungree submits that there is nothing in the National Law or the NCAT Act that suggests these rules are not applicable to the determination of an appeal under s 25 of the National Law. That may be so, but does not necessarily advance any consideration of the nature of an external appeal in this case.
The respondent points out that there is no provision in either the NCAT Act or the Adoption Act for the Tribunal to exercise all the powers, functions and discretions of the Registrar. This is in contrast to s 81(2) of the NCAT Act with respect to internal appeals and to s 63(2) of the Administrative Decisions Review Act 1979. The respondent submits that this is an indication that the appeal to the Tribunal is an appeal stricto sensu or a rehearing limited to the information that was before the Registrar which turns on the identification of an error. Furthermore, the respondent argues that this is particularly the case as the Registrar was required to be satisfied that Bungree's registration should not be cancelled.
The respondent's submission is supported by Wakefield v Commissioner of State Revenue [2019] QSC 85 at [35] in which it was held that where the decision appealed is one which depended upon the decision-maker being satisfied of a particular fact or matter, the appellant needs to demonstrate an error of principle in the decision-maker reaching, or not reaching, that state of satisfaction, before the Court would intervene. Where that is shown, the next question would be whether the Court can or should re-exercise the discretion, or whether the matter should be sent back to the decision maker. In that case the Court held that it would not construe the relevant legislative provision as conferring a power on the Supreme Court to stand in the shoes of the Commissioner, and re-exercise any discretionary power conferred on the Commissioner. As was noted in Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 at 273-274, however, the issue remains one of statutory construction.
As I have set out above, the primary element in the decision that was made by the Registrar was whether the Registrar had a reasonable belief that Bungree was not complying with the community housing legislation. "A reasonable belief" may be similar to the notion of a decision-maker reaching a level of satisfaction and the matters discussed in Wakefield therefore have some relevance.
As noted previously, neither the NCAT Act nor the Adoption Act specifically provide that the Tribunal in determining the appeal is to proceed by way of a rehearing or that new evidence can be taken into account. The Parliament has done so in respect of some external appeals under the NCAT Act. For example, an external appeal with respect to "lands legislation" (except if otherwise provided by the lands legislation) is to be by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence received by the decision-maker, may be given in the appeal with the leave of the Tribunal (cl 14 of Schedule 3, NCAT Act). A similar approach has been taken in NSW with respect to the National Law concerning health practitioners. The Health Practitioner Regulation National Law (NSW) provides in s 159(3) that an appeal "is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given".
In DGM v NSW Trustee and Guardian [2017] NSWCATAP 220 the Appeal Panel was dealing with the nature and extent of an appeal from a decision of the Mental Health Review Tribunal provided for in s 50 of the NSW Trustee and Guardian Act 2009. The Appeal Panel stated at [82]-[83]: 82 Significantly, the appeal is not by way of a new hearing. Unlike internal appeals to NCAT under internal appeal jurisdiction or appeals to the Supreme Court under the TG Act, no provision is made for the matter to proceed as a new hearing nor for a party to adduce fresh evidence: cf s 80(3) of the NCAT Act and s 49(2)(b) of the TG Act. 83 Rather, in determining the appeal, NCAT has different order making powers to those of the Supreme Court being those powers provided by s79(2)(b) of the NCAT Act (above). This includes power to vary or set aside orders, substitute another order or remit the proceedings for rehearing with or without new evidence.
While the context of the appeal in DGM is different in that s 50(2) of the NSW Trustee and Guardian Act provides that there is a right of appeal in respect of questions of law or with leave on any other ground, the case serves to illustrate that the Tribunal's external appeal jurisdiction is different to its other jurisdictions and the order making powers in s 79(2)(b) do not, in themselves, amount to providing for an appeal by way of a new hearing.
Turning now to the nature of the decision being appealed from, Bungree submits that the decision and appeal involve a matter of public interest. Bungree is an Aboriginal community based organisation providing a wide range of services for indigenous people residing in the Central Coast and Hunter regions of NSW. Bungree states that cancellation of its registration will deeply impact its ability to deliver services, including to Aboriginal people suffering from various forms of disadvantage. Assistance available to registered community housing providers would be removed if Bungree ceases to be registered.
While there may be particular concerns and issues that might arise by virtue of the fact that Bungree is an Aboriginal organisation, the particular circumstances of the individual case are not necessarily helpful in determining the nature and extent of the appeal provisions under the National Law and the Adoption Act. Those provisions, of course, apply to all registered community housing providers in NSW and are of general application. It is important to note, however, that community housing is an important part of housing provision in NSW and, in particular, social housing provision.
The respondent notes that, unlike the cancellation of registration of a professional person which results in the inability of the person to continue to practice their profession, there is no requirement for community housing providers to in fact be registered under the National Regulatory System for Community Housing in NSW. If registration was cancelled, Bungree would continue to be able to manage the properties it owns (as an unregistered provider) but would have to transfer management of its Aboriginal Housing Office and Community Services properties to other community housing providers on the instructions of those agencies. The respondent states that, of its portfolio of 94 properties, Bungree could continue to manage the 30 properties it owns but would need to transfer the 64 properties owned by other agencies. In the respondent's view, these matters support its view that the appeal is limited and not by way of a new hearing.
The respondent states that Bungree could continue to provide its other services, such as aged care, child protection and disability services, but accepts that deregistration would have funding consequences for Bungree arising from the transfer of assets and termination of leasing arrangements. The respondent states that the interests of Bungree's tenants would be taken into account in these circumstances, although some current tenants, if they are in fact ineligible for social housing but have been placed in a social housing property by Bungree, would lose their tenancies.
The respondent also submits that the provisions of the National Law contain certain temporal limitations which indicate that the evidence which can be considered on appeal is limited in nature. The respondent refers to s 20(1)(c) of the National law which provides that the Registrar may issue a notice of intent to cancel registration if the Registrar is of the opinion that the provider's failure to comply with the community housing legislation is serious and requires urgent action. The provider is then given a limited time within which to respond. The respondent submits that the legislative intent of the cancellation process would be undermined if an appeal were a hearing de novo resulting in a lengthy process.
The respondent refers to the decision of the Victorian Court of Appeal in Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 which concerned an appeal from a decision of the relevant Victorian body to cancel the registration of a pharmacist suspected of large drug importations. The Victorian body was empowered to take "immediate action" against a pharmacist to protect public safety. As in this case, the legislation was silent on the nature of the "appeal". The Court of Appeal found at [119] that the appeal under the relevant law is: …neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not 'open slather', but nor is it an appeal confined to error.
The Court of Appeal was influenced in its determination by the fact that a decision to take immediate action suggests a temporal limitation and the circumstances at the time are the relevant circumstances to be taken into account, not events which may have happened after the decision was made. In holding that the decision should be considered in the light of not only the evidence placed before the decision-maker at the time, but also any additional evidence that bears directly upon the position as it was when the original decision was made, the Court was conscious that, because of the requirement to act immediately, the material before the decision-maker was likely to be incomplete.
The decision in question in this appeal does not have the same requirement to act immediately as was considered by the Victorian Court of Appeal in Kozanoglu. The notice of intent to cancel was issued after a lengthy investigation and Bungree was given an opportunity to respond to the intention to cancel registration and could have made a request for that time to be extended. Thus, the decision was made only after taking into account any information and submissions provided by Bungree. Nevertheless, the case is important in holding that information can only be relevant on appeal if it might bear upon the decision actually taken at the time it was taken.

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