Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan

Regulatory framework: Home Building Act

1. Part 3 of the Home Building Act establishes a licensing scheme for persons who contract to do "residential building work". Residential building work is defined to include "any work involved in, or involved in co-ordinating or supervising any work involved in, the construction of a dwelling, that is designed or constructed for use as a residence": cl 2 of Sch 1. An individual must not do any residential building work except as, or on behalf of an individual, a partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work: Home Building Act, s 4.
2. A contractor licence authorises the holder to contract to do any residential building work or any specialist work that is described in the contractor licence: Home Building Act, s 21. The Home Building Regulation 2014 (NSW) prescribes categories of residential and specialist work, which includes plumbing work and liquefied petroleum gasfitting work: cls 13, 14.
3. Section 20 of the Home Building Act relevantly provides: 20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if - … (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or … (2) The Secretary may, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence. (3) The Secretary must refuse an application for a contractor licence if - (a) the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued, or … (4) (Repealed) (5) A decision of the Secretary relating to the specification of qualifications and experience, or additional standards or other requirements under subsection (2) cannot be reviewed by the Tribunal in an application for an administrative review made under this or any other Act. …

Administrative review by Tribunal

1. A person aggrieved by a decision made by the Secretary under s 20 of the Home Building Act to refuse an application for a contractor licence may apply to NCAT for administrative review of that decision under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act): s 83B(1).
2. Section 63 of the ADR Act states: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

The Instrument

1. In refusing Mr Kalkan's application for a contractor licence, the Commissioner's delegate applied an instrument made on 17 April 2018 by the Commissioner, entitled "Qualification requirements for an endorsed contractor licence, supervisor certificate or tradesperson certificate for plumbing, gasfitting and related specialist work" (the Instrument). Made under ss 33D(1)(a) and (b) of the Home Building Act, the Instrument set out the "possession of qualifications … and the possession of experience … necessary for an applicant for the issue of a supervisor certificate, endorsed contractor licence or tradesperson certificate" in several categories, including those the subject of Mr Kalkan's application for a contractor licence.
2. Table 1 of the Instrument lists the qualifications and experience an applicant must hold to be granted a contractor licence in eight categories of plumbing. Category 1A of Table 1 lists those relevant to Mr Kalkan's application: "plumbing, gas fitting, draining and LP gas fitting".
3. Headed "qualifications", Column 2 of Category 1A of Table 1, lists the qualifications an applicant must hold to be granted a contractor licence or tradesperson certificate (the qualification requirement): 1. a "Certificate III in Plumbing", or 2. an "Apprenticeship which includes a Certificate III in Plumbing".
4. Headed "experience", Column 3 of Category 1A of Table 1 lists the experience an applicant must obtain to be granted a contractor licence or tradesperson certificate (the experience requirement): 1. "Evidence of completion of an apprenticeship and at least two (2) years' combined industry experience in [relevant work]"; or 2. "At least two years' combined industry experience in [relevant work] and that this was obtained after completion of Certificate III in Plumbing."
5. "Relevant work" is defined in para (b), Column 2 of Category 1A of Table 1 to include, "design and size heated and cold water services and systems", "read and interpret plans" and "design and size stormwater drainage systems".
6. The Commissioner's delegate found that having completed a Certificate III in Plumbing, Mr Kalkan met the qualification requirement. However, the delegate found that Mr Kalkan did not satisfy the experience requirement because he did not have two years' combined industry experience obtained after completion of a Certificate III in Plumbing.

Amendment to Home Building Act

1. The Building Legislation Amendment Act 2021 (NSW) (the Amendment Act), commenced on 5 July 2021. Schedule 3 of that Act introduced a series of amendments to the Home Building Act, of which two are relevant to this appeal:

Amendment to s 20(2)

1. Prior to 5 July 2021, s 20(2) of the Home Building Act read: "(2) The regulations may fix or provide for the Secretary to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued."
2. Clause 1 of Sch 3 to the Amendment Act amended s 20(2) of the Home Building Act, to read: "(2) The Secretary may, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence."

Insertion of cl 159

1. Clause 4 of Sch 3 to the Amendment Act, inserted cl 159 into Sch 4 (Savings and Transitional Provisions) of the Home Building Act: 159 Qualifications and experience required by licence and certificate applicants 1) For the purposes of section 20(2), a notice published in the Gazette before the commencement of the amending Act, specifying the qualifications and experience required to be held by an applicant for a contractor licence, is taken to have been validly made and to be valid on and from the date the notice was published. …

Whitehouse v Commissioner for Fair Trading

1. Apparently, the amendments to the Home Building Act were introduced to overcome the effect of the decision in Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 (Whitehouse). In that decision, the Tribunal held that in determining an application for administrative review of a decision to refuse to grant a contractor licence, an instrument made under s 33D of the Home Building Act was not binding on NCAT.
2. In Whitehouse, the Tribunal considered whether ss 20(2) and 20(3) of the Home Building Act (as they existed at that time) operated to require the Commissioner (and on review, the Tribunal) to refuse to grant an application for a contractor licence in circumstances where the licence applicant, Mr Whitehouse, failed to meet the requirements contained in an instrument made by the Commissioner under s 33D of the Home Building Act. That instrument related to "general building work" (the subject instrument).
3. The Tribunal noted that the regulations made under the Home Building Act did not "fix or provide for the Secretary to determine additional standards or other requirements that must be met before any contractor licence is issued", as permitted by s 20(2) of the Home Building Act.
4. The Tribunal went on to consider whether it was bound to apply the subject instrument. Section 64(1) of the ADR Act required the Tribunal to "give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision". The Tribunal concluded that the subject instrument, while a policy made by the Commissioner, was not in the nature of "Government policy", within the meaning of the ADR Act, s 64(5): at [39]. The Tribunal reasoned that, as a consequence, it was not required to give effect to the subject instrument in deciding Mr Whitehouse's application for a contractor licence.
5. The Tribunal found that while Mr Whitehouse did not meet the requirements contained in the subject instrument, he had "equivalent (or in fact higher) qualifications than those determined by the respondent" and to apply the subject instrument would "produce an unjust result in the circumstances of this case": [60]-[61]. Applying that reasoning, the Tribunal decided to grant Mr Whitehouse a contractor licence.
6. The reasoning in Whitehouse has been adopted in several decisions of the Tribunal including McGowen v Commissioner of Fair Trading [2021] NSWCATAD 46 and Carrigan v NSW Fair Trading [2018] NSWCATOD 60.

Decision under appeal.

1. In a decision made on 2 September 2021, the Tribunal set aside the Commissioner's decision to refuse to grant Mr Kalkan a contractor licence and in substitution for that decision, granted Mr Kalkan a contractor licence.
2. In oral reasons given for that decision the Tribunal: 1. accepted, as contended by the Commissioner, that Mr Kalkan did not meet the Experience Requirement contained in the Instrument; 2. decided that cl 159 of Sch 4 of the Home Building Act did not apply because Mr Kalkan had applied for a contractor licence and the Commissioner had decided to refuse to grant that application before that provision came into effect; 3. adopted the reasoning in Whitehouse at [35]-[36] that it was not bound to apply the Instrument because it was not "government policy"; and 4. exercised the discretion to grant Mr Kalkan a contractor licence.

Grounds of appeal

1. The Commissioner has a right to appeal against a decision made by the Tribunal on any question of law or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
2. In the grounds of appeal, the Commissioner asserts that the Tribunal: 1. misconstrued s 20(2) of the Home Building Act; 2. erred in concluding that cl 159(1) of Sch 4 to the Home Building Act did not have retrospective operation.

Consideration

1. The central question raised by this appeal is whether in determining Mr Kalkan's application for administrative review, the Tribunal erred by applying the provisions of the Home Building Act as they stood at the date Mr Kalkan applied for a contractor licence (7 January 2021) that is, prior to the amendments introduced by the Amendment Act.
2. As a consequence of the amendment made to s 20(2) of the Home Building Act, the Secretary may "by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence". Section 20(3) of the Home Building Act provides that the Secretary must refuse an application for a contractor licence if the Secretary is not satisfied that "any such requirement" being a requirement contained in a gazetted notice, "would be met were the contractor licence to be issued". The expression "any such requirement" in s 20(3) of the Home Building Act refers back to the immediately preceding provision, s 20(2) of that Act specifically, "the requirements specified in any notice published in the Gazette".
3. The Instrument is a "notice published in the Gazette", which specifies "qualifications and experience … required to be held or met by an applicant for a contractor licence". It follows that if the Tribunal was required to apply the version of the Home Building Act in force from 5 July 2021, ss 20(2) and 20(3) in combination would require the Tribunal to refuse to grant a contractor licence to Mr Kalkan because he did not meet the experience requirement stipulated by the Instrument.
4. The Tribunal reasoned that to apply the amended version of the Home Building Act would offend the presumption that legislation does not have a retrospective operation. The Tribunal found that the amendments are not retrospective as "there is no evidence or nothing in the provision to indicate that they apply retrospectively": reasons for decision, p 2.
5. By cl 159 of Sch 4 of the Home Building Act, the Instrument is deemed to be validly made and to be valid from the date it was published, 17 April 2018. However, if as suggested by the Commissioner, of itself, cl 159 operates to cure the problem identified by the Tribunal in Whitehouse, we cannot agree. That problem related not to the validity of the Instrument, but rather to the fact that the requirements contained in the Instrument were not "requirements" for the purpose of s 20(2) of the Home Building Act. That is, those requirements were neither fixed by regulations made under that Act, nor made by the Secretary pursuant to a power conferred by those regulations, and therefore the Tribunal was not required to refuse a contractor licence on the basis that the applicant failed to satisfy those requirements.
6. It follows that, consistent with the decision in Whitehouse, the version of the Home Building Act in operation before the enactment of the Amendment Act did not require the Commissioner (or the Tribunal on review) to refuse an application for a contractor licence if the applicant did not meet a requirement contained in the Instrument.
7. However, this does not resolve the question of which version of the Home Building Act the Tribunal was required to apply when determining Mr Kalkan's application for administrative review. The Commissioner contends it was the version in force at the date the Tribunal made its decision, that is, 5 September 2021. Mr Kalkan, on the other hand contends, as the Tribunal apparently concluded, that it was the version in force when he made his initiating application to the Commissioner for a contractor licence (7 January 2021). (Mr Kalkan filed the initiating application and the Commissioner refused that application before the commencement of the Amendment Act. Mr Kalkan filed his application for review of the Commissioner's decision and the Tribunal determined that application after the commencement of the Amendment Act. For convenience we will refer to the relevant dates as the date the Commissioner determined Mr Kalkan's initiating application and the date the Tribunal determined Mr Kalkan's application for administrative review of the Commissioner's decision.)
8. In determining which version of the Home Building Act the Tribunal was required to apply, it is first necessary to examine the terms of the ADR Act and the Home Building Act. Neither spell out in explicit terms the answer to that question. In contrast, s 65(2) of the ADR Act directs the Tribunal in determining an application for an administrative review of an administratively reviewable decision, to give effect to any relevant Government policy in force at the time the administratively reviewable decision was made…".
9. Section 63(1) of the ADR Act provides that in "determining an application for an administrative review … of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it", including "any relevant factual material" and "any applicable written or unwritten law". In undertaking that task the Tribunal may have regard to "relevant factual material" that post-dates the date of the administratively reviewable decision. That is apparent from the text of s 63(1) of the ADR Act: "the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it" which includes "any relevant factual material".
10. Although a different statutory regime was being considered, the decision of the High Court in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 (Shi) (Kirby, Hayne, Heydon, Crennan and Kiefel JJ) is consistent with that analysis. That decision concerned the question of whether, in reviewing a decision of the Migration Agents Registration Authority (the Authority) to cancel Ms Shi's registration as a migration agent, the Administrative Appeals Tribunal (AAT) was restricted to considering the facts and circumstances as they existed at the time of the Authority's decision. The relevant provisions of the Administrative Appeals Tribunal Act 1975 (Cth) and the enabling legislation, the Migration Act 1958 (Cth), were silent on that question. The High Court concluded that the Federal Court had erred in holding that the AAT was limited to considering the facts and circumstances as they existed at the time of the Authority's decision. At [143] Kiefel J (with whom Crennan J agreed) said: "Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time." (Footnotes omitted)
11. However, we are unable to agree with the contention advanced by the Commissioner that Shi is authority for the proposition that in determining an application for review the Tribunal is required to apply the version of the enabling legislation in force at the time of the Tribunal's decision. The High Court did not address that issue but rather confined its consideration to the question of whether the Tribunal was permitted to consider facts and circumstances which post-dated the Authority's decision.
12. Nonetheless, for the reasons that follow we agree with the Commissioner's contention that the Tribunal was required to apply the version of the Home Building Act in force at the date of its decision.
13. First, the relevant provisions of the ADR Act and the Home Building Act each use the present tense. Section 63(1) of the ADR Act provides that in determining an application for an administrative review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it (emphasis added).
14. Similarly, the present tense is used in the relevant provisions of the Home Building Act. For example, 20(1) of the Home Building Act provides that the Secretary must refuse an application for a contractor licence if: the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence (s 20(1)(a)), the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by ss 33B and 33C (s 20(1)(a1)); the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued (s 20(2)(a)); the Secretary is not satisfied with the applicant's proposed arrangements for supervision of the work which the contractor licence will authorise the applicant to contract to do (s 20(2)(b))(emphasis added).
15. Second, there is nothing in Div 3 (Powers on administrative review) of Pt 3 (Role of the Tribunal) of the ADR Act in which s 63 is contained, or the ADR Act as a whole, to suggest that the expression "applicable written or unwritten law" should be read to mean "applicable written or unwritten law as at the date the administratively reviewable decision was made".
16. Finally, this is not a case where an applicant applying for administrative review of an administratively reviewable decision could be said to have an "accrued" right within the meaning of s 30(1)(c) of the Interpretation Act 1987 (NSW). Section 30(1)(c) of the Interpretation Act provides that the amendment of an Act does not affect any right, privilege, acquired or accrued under the Act.
17. In Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 (Esber), the High Court considered the application of s 8(c) of the Acts Interpretation Act 1901 (Cth), the Commonwealth equivalent to s 30(1)(c) of the Interpretation Act.
18. Mr Esber had applied to the AAT for review of a decision by the Commissioner for Employees' Compensation to refuse to permit him to redeem weekly payments being paid to him by way of a lump sum payment under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). After Mr Esber applied to the AAT for review of that decision, but before the AAT determined that application, the 1971 Act was repealed by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). The latter did not permit an applicant to redeem weekly payments by way of a lump sum payment. On appeal, the High Court by majority (Mason CJ, Deane, Toohey and Gaudron JJ) determined that the AAT was required to apply the provisions of the 1971 Act, reasoning that once Mr Esber lodged an application to the AAT, he had a right to have the decision reconsidered and determined by the AAT. That right was a "substantive right" and "in the absence of a contrary intention, the right was protected by section 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act": at [24].
19. The principles stated by the majority in Esber, were considered by the Tribunal in Duncan v Commissioner of Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 121 (Duncan) at [17]-[35]. That decision concerned an application for review to one of NCAT's predecessors, the NSW Administrative Decisions Tribunal, of a decision to refuse to grant a real estate agent's licence. The Tribunal concluded that Mr Duncan did not have an accrued right, "only a hope or expectation that the Commissioner would exercise the discretion [to grant a real estate agent's licence] favourably".
20. Leaving to one side the fact that Mr Kalkan's application for administrative review of the Commissioner's decision was made after the date the Amendment Act came into effect, it could not be said that prior to that date he had an "accrued right" to be granted a contractor licence. The right he had was no more than a right to have his application determined and falls short of an "accrued right" for the purposes of s 30(1)(c) of the Interpretation Act.
21. The Tribunal erred in applying the version of the Home Building Act in force before the Amendment Act came into force.
22. The Appeal must be allowed.

Did Mr Kalkan complete a Certificate III in plumbing in 2015?

1. In the hearing of the appeal, Mr Kalkan advanced the alternative argument that while he was not awarded a Certificate III until 2020, he had in fact completed that certificate in 2015. The Commissioner accepts that if that argument is accepted, Mr Kalkan would satisfy the experience requirement contained in the Instrument.
2. We decided to exercise the power conferred by s 80(1)(e) of the NCAT Act and set aside the decision under appeal and to consider whether another decision should be made in substitution for the decision under appeal. We gave the parties the opportunity to provide short written submissions on whether: 1. as a matter of fact, Mr Kalkan's 2015 qualifications entitled him to a Certificate III in Plumbing? 2. as a matter of construction, Mr Kalkan's 2015 qualifications satisfy the requirements of the Instrument?
3. Mr Kalkan was a member of the Australian Defence Force between 2011 and 2015. In evidence given in the proceedings below, Mr Kalkan said: 1. while in the ADF and based in Victoria, he did "all the book work, the theory part of an apprenticeship"; 2. he passed everything including the "Cert III and Cert IV" and in addition, did a "Journeyman Test" where he was tested on his "practical experience"; 3. that he conceded that he had not completed an apprenticeship in plumbing; 4. when he left the ADF he was unaware that he needed to apply for a Certificate III; 5. when, in or about 2015, he realised he needed to apply for a Certificate III, he made enquiries of TAFE NSW about obtaining his "licence". He was told his "units were not compliant … they were too old"; 6. in 2018, at the recommendation of TAFE he went to Skills Certified, apparently a Registered Training Provider, which said that he needed evidence to support his claims about his "on-job experience", including references from former employers. In addition, he was told he needed to obtain "two separate first aid certificates".
4. In July 2015, Mr Kalkan was issued with several certificates by a Registered Training Organisation, attesting that he had successfully completed various "knowledge units". In March 2016, the Victorian Commissioner for Vocational Training issued Mr Kalkan a "craft certificate" stating that he had satisfied the "requirements for trade recognition and is adequately trained to pursue the trade of plumbing". Mr Kalkan does not assert that this certificate is the equivalent of an apprenticeship in plumbing.
5. The Commissioner accepts that there appears to be significant overlap between the qualifications held by Mr Kalkan in 2015 and those which resulted in him ultimately being granted a Certificate III in 2020. However, the Commissioner submits that the reference to the qualification requirement in the Instrument, "at least two years combined industry experience … obtained after completion of Certificate III in Plumbing", could not be read to mean as "completing units of study that may support a Certificate III in Plumbing". Available material does not support a finding that Mr Kalkan "completed" a Certificate III in plumbing in 2015, contends the Commissioner.
6. We agree. Further, it could not be said that in 2015 Mr Kalkan had "completed" all the units of study to be issued a Certificate III. On his own account Mr Kalkan was told by Avante Education that he could not be issued with that certificate until he provided evidence that he had relevant work experience and had undertaken further units of study.
7. We find that Mr Kalkan did not complete a Certificate III in plumbing until August 2020. It follows that Mr Kalkan does not have at least two years' combined industry experience obtained after completion of that certificate. Section 20(3) of the Home Building Act therefore requires that we refuse to grant Mr Kalkan a contractor licence. The decision made by the Commissioner must be affirmed.

Orders 1. The appeal is allowed. 2. The decision of the Tribunal made on 2 September 2021, is set aside. 3. In substitution for that decision the decision made by the Commissioner on 29 April 2021 to refuse to grant Mr Kalkan a contractor licence is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 April 2022