The proper construction of s 11(b)
75 The heading and chapeau to s 11 of the ESOS Act recognise that the requirements set out in s 11 are applicable to providers and registered providers. Paragraph 11(g) expressly relates to a provider that is not a registered provider, and paragraph 11(h) expressly relates to a provider that is a registered provider, or which has previously been registered. Otherwise, the other paragraphs are directed to the situation of a "provider", which as I have mentioned above is defined by s 6E and includes a registered provider and a person who seeks to provide courses to overseas students.
76 The primary issue that is raised by the applicant's first question of law is whether, in relation to a provider that is a registered provider, s 11(b) of the ESOS Act, and its reference to "is complying, or will comply", requires that the decision-maker be satisfied of either limb, the first limb only, or both limbs.
77 I have considered a number of authorities where courts have been invited to construe "and" disjunctively, and "or" conjunctively. These authorities are not directly relevant, because they concern the construction of other statutes. However, they are useful to the extent that they show how other courts have approached similar problems. In the former category, where courts have been invited to construe "and" disjunctively, is the decision of the Supreme Court of the Northern Territory in Re the Licensing Ordinance (1968) 13 FLR 143. Blackburn J, in addressing the authorities that were cited to the court, stated at 146-147 -
… Each of them in my opinion falls into one or the other of two categories. The first category is that of cases where, if "and" was given its natural meaning, the result was so extraordinary… that in order to make sense of the provision the court was obliged to say that it must read the word "and" as if it had been "or". The cases in the second category were those in which there was a list of items, the items being joined by "and" and the list being governed or affected by words which showed that the list was a list of alternatives. …
…
In my opinion, the proposition that "and" can sometimes mean "or" is true neither in law nor in English usage, and the authorities do not show otherwise.
78 There have been a number of instances where in construing a provision containing the word "or" the prima facie grammatical sense has been adjusted so as to give effect to the obvious intention of the provision, or otherwise to avoid a contradiction or absurdity: Walker v York Corporation [1906] 1 KB 724; Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627. There are other instances where, without any necessary strain upon the language of the statute, "or" has been held on its true construction to have a conjunctive meaning: R F Brown & Co Ltd v T and J Harrison (1927) 43 TLR 633 at 637 (Bankes LJ, Atkin LJ and Lawrence J agreeing). In giving separate reasons, Atkin LJ referred to the absurdity of an alternative disjunctive construction, and stated at 639 -
… I disagree with the learned judge in his view that the word "or" can never have a conjunctive sense. I think it quite commonly and grammatically can have a conjunctive sense. It is generally disjunctive, but it may be plain from the collocation of the words that it is meant in a conjunctive sense, and certainly where the use of the word as a disjunctive leads to repugnance or absurdity it is quite right within the ordinary principles of construction adopted by the Court to give the word a conjunctive use. Here it is quite plain that the use of the word as a disjunctive leads to an absurdity … In addition to that, there is a repugnancy, because to use the word in a disjunctive sense is plainly repugnant to the second part of the section.
79 There are some general statements in the authorities concerning the ordinary meaning of the word "or". In Morgan v Thomas (1882) 9 QBD 643, a case concerning the construction of a will, Jessel MR stated at 645-646 -
You will find it said in some cases that "or" means "and;" but "or" never does mean "and;" unless there is a context which shews it is used for "and" by mistake.
80 In Green v Premier Glynrhonwy Slate Company Ltd [1928] 1 KB 561, in addressing a suggested construction of a workers' compensation statute that would lead to reading "or" as "and", Scrutton LJ stated at 568 -
You do sometimes read "or as "and" in a statute. In Brown & Co v Harrison [(1927) 43 TLR 394] MacKinnon J read "or" as "and" in the Carriage of Goods by Sea Act, 1924, and his decision was confirmed by this Court. But you do not do it, unless you are obliged, because "or" does not generally mean "and" and "and" does not generally mean "or".
81 In In re Diplock [1941] 1 Ch 253, another case concerning the construction of a will, Greene MR stated at 260 -
The word "or" is prima facie, and in the absence of some restraining context, to be read as disjunctive …
82 In Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 the House of Lords considered the proper construction of a penal statute that made "the owner or master" of a ship from which oil was discharged guilty of an offence. The question before the House was whether both the owner and master could be convicted of the offence, and it was held by a 3-2 majority that both the master and the owner of the ship could be convicted of the offence, for to hold otherwise would result in absurdity: see at 522F (Lord Wilberforce) and 524A, 524E and 525A (Lord Salmon). Lord Simon of Glaisdale concluded at 523D that the drafter used "or" for "and" in error. Lord Wilberforce, in reaching his conclusion, stated at 520E-521A -
To say that what we have to decide is whether "or" is conjunctive or disjunctive or, putting it more bluntly, whether "or" means "and," appears to me, with respect, to be a dangerous simplification. It is the meaning of the phrase as a whole that concerns us.
…
In logic, there is no rule which requires that "or" should carry an exclusive force. Whether it does so depends on the context. So one must ask what, in a legal context, is the meaning of an assertion that "A or B" is to be guilty of an offence? … It seems clear enough that where the law says that something is to happen to "A or B," if what is intended is an exclusionary alternative (i.e., one, but not the other), the law must state either some qualification by which the affected person may be determined), or must name a third person by whom the choice may be made.
83 Returning to questions of logic, Lord Wilberforce stated at 522C -
If all these meanings are rejected, there remains the course of treating "or" as expressing a non-exclusionary alternative - in modern logic symbolised by "v". In lawyer's terms this may be described as the course of substituting "and" for "or," or, rather the course of redrafting the phrase so as to read: "the owner and the master shall each be guilty," or, if the phrase of convenience were permitted "the owner and/or the master." To substitute "and" for "or" is a strong and exceptional interference with a legislative text, and in a penal statute one must be even more convinced of its necessity. It is surgery rather than therapeutics.
84 In Delaney v Celon (1980) 24 SASR 443, Jacobs J construed "or" in a crimes compensation statute as meaning "and, in an appropriate case", with the consequence that two types of application were not mutually exclusive, but could co-exist -
(7) Subject to this Act, on an application under this section the court may order -
(a) that the victim be paid by the Crown such amount as the court thinks fit by way of compensation for the injury suffered by him;
or
(b) that the dependants of a dead victim be paid by the Crown such amount as the court thinks fit by way of compensation for the financial loss suffered by them (to be proportioned between the various claimants as the court thinks fit),
together with such amount (if any) by way of costs as the court thinks fit.
85 In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Court (Burchett, Branson and Tamberlin JJ) considered the Minister's power to refuse or cancel a visa in s 501(1) of the Migration Act 1958 (Cth), as in force at the relevant time. The power was engaged if, inter alia -
(2) … the Minister:
(a) having regard to:
(i) the person's past criminal conduct; or
(ii) the person's general conduct;
is satisfied that the person is not of good character.
…
86 The Full Court held at 194-195 that it was not conceivable that Parliament intended that a conclusion as to a person's good character should be based exclusively on past criminal conduct, without regard being had to any recent good conduct, whether or not falling within the description of "general conduct". Accordingly, s 502(2) did not limit the matters to which the Minister should have regard, and having regard to context, the word "or" should not be read as strictly disjunctive, but was to be read as -
… a kind of hybrid of disjunctive and conjunctive, equivalent to "or, or as well", conveying the meaning that the decision may be reached having regard to either or both of the kinds of conduct referred to.
87 In Pileggi v Australian Sports Drug Agency [2004] FCA 955; 138 FCR 107, Kenny J considered the proper construction of reg 17(1) of the Australian Sports Drug Agency Regulations 1999 (Cth), which was in the following terms -
(1) The Agency may ask a competitor for a sample orally or by written notice.
88 Kenny J rejected a submission that had been advanced on behalf of the applicant that would require a lawful request to be either oral or in writing, but not a combination of oral and written communications. Her Honour read the word "and" for the word "or", stating at [37] -
37. … A literal reading of reg 17 might provide some support for the applicant's contention. Thus, reg 17(1) provides that ADSA may ask a competitor for a sample "orally or by written notice" (emphasis added). Counsel for the applicant offered no other justification for this approach. In contrast, a purposive approach to interpretation would support reading the word "and" for the word "or"; and, having regard to the matters mentioned in [43]-[44] and ss 15AA and 46 of the Acts Interpretation Act, this approach is to be preferred: see Smith v Papamihail (1998) 88 FCR 80, at 88-89 per Carr J, followed in Re Peat Resources of Australia Pty Ltd; Ex parte Pollock (2004) 181 FLR 454 at [23] per Malcolm CJ, see also [98] per Steytler J and [115] per McKechnie J; and Pearce and Geddes, Statutory Interpretation in Australia (5th ed, 2001), para 2.25. A request under reg 17 will be made when, viewed objectively and having regard to the attendant circumstances, the words used clearly convey to the competitor that he or she is being asked to provide a sample at a particular place and time. Regulation 17(2) makes express provision for this statement of place and time.
89 For the purposes of determining the proper construction of s 11(b) of the ESOS Act, I take as a starting point the approach of Lord Wilberforce in Federal Steam Navigation Co Ltd v Department of Trade and Industry, which is not to treat the question in issue as being whether "or" means "and", because that is an oversimplification. The true question is what idea is conveyed by s 11(b) as a whole, having regard to its text, context, and purpose in the way explained in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue at [47].
90 I do not accept the primary construction advanced on behalf of the applicant, namely that s 11(b) is ambulatory so that there are exclusionary alternatives, namely that "will comply" is relevant only to a provider yet to be registered, and "is complying" is relevant only to a registered provider. For the reasons that follow, the assumption underlying that submission fails because within the four corners of the ESOS Act, both limbs of s 11 are capable of being applicable to both categories of provider. Nor do I accept the alternative literal construction advanced by counsel for the applicant that in all cases it is sufficient if either limb is engaged. Such a construction would give the decision-maker an arbitrary choice, without reference to any express criteria, and would border on the absurd in the context of the objects of the legislation.
91 Part 4 of the ESOS Act makes provision for the making of a national code by the Minister having as its purpose the provision of nationally consistent standards and procedures for registered providers, and those who deliver educational services on behalf of registered providers: s 34. Under s 85 of the ESOS Act, the actions that may be taken by an ESOS agency against a registered provider in respect of a breach of the code extend to taking action against a provider even if the provider was not yet registered at the time of the relevant breach -
85 ESOS agency may take action for breaches occurring before provider was registered
The ESOS agency for a registered provider may take action against the provider under section 83 even if the provider was not yet registered at the time of the relevant breach.
92 It is therefore within the contemplation of the ESOS Act that a provider that was not registered at the relevant time may be assessed as not complying, or as having not complied, with the national code. That may occur at the time the decision-maker assesses whether the registration requirements are met, and it may occur after registration, as s 85 provides. By way of example, under Part C of the National Code 2017 there are requirements that relate to applications for registration and re-registration in the nature of information that is required. The introduction to Part D of the National Code 2017 refers to these requirements -
These standards detail the specific requirements registered providers must meet to comply with their obligations. These obligations need to be met at the point of CRICOS registration and throughout the CRICOS registration period. Obligations and requirements that relate specifically to the registration process for CRICOS purposes are covered under Part C.
(Emphasis added.)
93 Likewise, Standard 11 of the National Code 2018 contains additional registration requirements, which include a requirement to seek certain approvals under Standard 11.1, and the provision of information as requested by the ESOS Agency under Standard 11.2.
94 In my judgment, the idea conveyed by s 11(b) of the ESOS Act is that the decision-maker should be satisfied that the provider, or registered provider, is complying, and will comply, with such of the provisions of the Act and the instruments referred to in the paragraph that are applicable to that provider. This idea is conveyed by the text of s 11(b) in a compressed, rolled-up way. Not all provisions of all instruments referred to in s 11(b) will be applicable to all applicants to which the criteria in s 11 must be applied. This proposition has different dimensions to it. The provisions of Part 3 of the ESOS Act require compliance by registered providers. As I have identified, some of those provisions require the maintenance of a continuing state of affairs, such as the keeping of records. Other provisions require a positive act of compliance if and when the occasion arises. And other provisions proscribe particular acts or conduct by a registered provider. Similarly, the national code has some provisions which require a state of continuing compliance by a registered provider, as well as other provisions requiring compliance if and when the occasion arises. Accordingly, in relation to a registered provider seeking renewal of its registration, both limbs of s 11(b) have potential work to do.
95 I have come to the same conclusion in relation to providers which are yet to be registered providers. Both limbs of s 11(b) of the Act have application, because the Act contemplates that a provider that applies to be a registered provider may be required to comply with the national code prior to registration. That compliance may be assessed at the time of making a decision under s 10(1) of the Act, and if it is later ascertained after registration that there was a breach of a requirement under the national code relating to the application for registration, the ESOS agency may take action under s 83 of the Act, as s 85 of the Act permits.
96 There are other contextual matters that are relevant to the primary construction advanced on behalf of the applicant. The first relates to the history of the provision. As I have mentioned, counsel for the respondent submitted that s 15AC of the Acts Interpretation Act is engaged -
15AC Changes to style not to affect meaning
Where:
(a) an Act has expressed an idea in a particular form of words; and
(b) a later Act appears to have expressed the same idea in a different form of words for the purpose of using a clearer style;
the ideas shall not be taken to be different merely because different forms of words were used.
97 I do not consider that s 15AC is engaged here. Section 2 of the Acts Interpretation Act provides that the Acts Interpretation Act applies to all Acts. I will assume that an amending Act may be a "later Act" for the purposes of s 15AC(b). However, I do not accept that s 11 was introduced by the 2016 amendments for the purpose of expressing the same idea in a different form of words "for the purpose of using a clearer style". The amending Act, which was the Education Services for Overseas Students Amendment (Streamlining Regulation) Act 2015 (Cth), does not state any such purpose, and nor does the explanatory memorandum to the Bill: cf, Income Tax Assessment Act 1997 (Cth), s 1.3. One of the main purposes of the amendments claimed by the explanatory memorandum and supported by the text of the amendments was to vest the power of registration in the ESOS agency directly, whereas previously ASQA had acted as a delegate of the Secretary, and had the dual functions to which I referred at [20] above. To that extent, there was a substantive change, which is not to be characterised as a change for the purpose of expressing the same idea in a clearer style. Coupled with that principal change were other changes. The question of compliance with the ELICOS Standards or Foundation Program Standards, if applicable to the provider, was introduced. Further, in relation to s 11(b) a change in focus from that in the repealed s 9AB(1)(f) was introduced, namely from a state of "no reason to believe" that the provider "is not complying, or will not comply" with the Act and the national code, to a positive state of satisfaction of compliance. In W A Pines Pty Ltd v Bannerman [1980] FCA 79; 30 ALR 559, Lockhart J, with whom Bowen CJ agreed, reviewed a number of authorities and construed the phrase "reason to believe" in s 155 of the Trade Practices Act 1974 (Cth) as requiring actual belief, together with reasonable grounds or cause for that belief: at 570. In George v Rockett [1990] HCA 26; 170 CLR 104 at 112, the court stated that "[w]hen a statute prescribes that there must be 'reasonable grounds' for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person", citing (inter alia) Lord Atkin's "famous, and now orthodox" dissenting speech in Liversidge v Anderson [1942] AC 206, and the reasons of Lockhart J in W A Pines Pty Ltd v Bannerman. See also, Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 at [56] (French CJ). The Court in George v Rockett also addressed, at 116, what constitutes a state of belief, describing it as an inclination of the mind that may rest on more slender evidence than proof -
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
98 As to the negative form, "the Secretary has no reason to believe", appearing in s 9AB(1)(f) of the ESOS Act before the 2016 amendments, it was the absence of a belief formed on reasonable grounds that was the relevant subjective jurisdictional fact. As a corollary, the presence of such a belief might be regarded as a disqualifying jurisdictional fact. On the other hand, after the 2016 amendments, under s 11(b) the decision-maker must be satisfied of the existence of compliance and of an affirmative estimation as to future compliance. Although no onus of proof is involved, s 11(b) requires the existence of an affirmative state of satisfaction in order to be engaged. In addressing the question of satisfaction, the decision-maker must act according to law. A failure to be satisfied may be reviewable for error of law, or jurisdictional error, on one of the range of grounds essayed in Avon Downs Pty Ltd v Commissioner of Taxation (Cth) [1949] HCA 26; 78 CLR 353 at 360 (Dixon J), and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [119]-[131] (Crennan and Bell JJ), and see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 275-276 (Brennan CJ, Toohey, McHugh and Gummow JJ).
99 For the above reasons, in relation to the decision-maker's appraisal of compliance by a registered provider applying for renewal of registration under the ESOS Act, there is a difference between s 9AB(1)(f) of the Act before the 2016 amendments, and s 11(b) after the amendments, that does not amount to a mere change in style of language.
100 However, the rejection of the submission of counsel for the respondent in relation to the application of s 15AC of the Acts Interpretation Act does not entail an acceptance that the history of the provision supports the construction advanced on behalf of the applicant. In relation to the primary submission advanced on behalf of the applicant, I do not consider that the text, history, or context of the provision supports a construction that would have the decision-maker appraise for the purposes of s 11 the prospect of future compliance of an applicant for registration, but not an applicant for renewal of registration. In the absence of a clearly expressed intention, that is a most improbable outcome that is not supported by the surrounding provisions of the Act, and is not consistent with its objects. The Act limits the period of registration, including upon renewal, to seven years: s 10A(2)(e); s 10G(2)(f). There are provisions providing for the extension or continuation of registration in certain circumstances, but subject to those provisions the Act evinces a policy that registration will end unless renewed. By incorporating as a jurisdictional fact that a provider "meets the registration requirements" into s 10E(1) relating to the consideration of an application for renewal of registration, the Act evinces an intention that in order to obtain renewal of registration, an applicant must meet the same extensive registration requirements of s 11, just as an applicant for initial registration would. The process of a renewal application includes the possibility of an audit of any matter relating to the application: s 11A(4)(b). It would be an extraordinary outcome if the future compliance of a provider not yet registered was relevant under s 11(b), yet upon renewal the future compliance of a registered provider was not relevant in circumstances where there would usually be a history from which the likelihood of future compliance might be estimated.
101 For all the above reasons, the applicant's claim that the Tribunal fell into error in its construction of s 11(b) of the ESOS Act is rejected. When regard is had to the full legislative context, the word "or" in the phrase "is complying, or will comply" recognises the different types of obligations under the Act and the national code with which compliance is required, and is not to be construed so as to differentiate between providers yet to be registered, and registered providers seeking renewal, as counsel for the applicant submitted. The idea conveyed by the provision is that the decision-maker is to be satisfied as to whether an applicant for registration, renewal of registration, or the addition of a course, is complying or will comply, as appropriate, with the vast range of obligations arising under the legislation and the relevant legislative instruments having regard to their different character: cf, Delaney v Celon (1980) 24 SASR 443 at 445 (Jacobs J). This does not involve the brute force substitution of the word "or" by the word "and" on the ground that there has been some obvious drafting slip. It is an ambulatory construction that is directed across those obligations that require a continuing state of compliance at the time of the consideration of the application, and those obligations that require compliance if and when the occasion arises. Past non-compliance with any type of obligation may inform the decision-maker's appraisal of the prospect of future compliance. This is a purposive construction of s 11(b) that is harmonious with the other provisions of the Act and the relevant legislative instruments such as the national code, and is to be preferred over all other constructions: Acts Interpretation Act, s 15AA. It accommodates the fact that some obligations to which a provider applicant may be subject will require compliance at the time of application, and others will require future compliance, and gives effect to the objects of the Act by requiring as a subjective jurisdictional fact satisfaction by the ESOS agency of both current compliance and prospective compliance.