The imposition of conditions - s 515
30 Jurisdictional error on the part of the delegate and the Full Bench, however, has been exposed in their respective construction and application of the power to impose conditions contained in s 515 of the Fair Work Act.
31 The reasoning of the delegate in respect to s 515 was Delphic. Those reasons recorded the submission as follows:
[15] In its submissions, the MUA concedes that, given the length of time that has elapsed between the last occasion such training was undertaken by Mr Tracey and the lodgement of the application in this matter "it may be appropriate to make further training a condition of the permit being issued".
The following conclusion implicitly rejected that submission:
[67] Having carefully considered all of the available circumstances in this matter and having particular regard to the permit qualification matters for the purposes of s. 512 of the Act, I have concluded that I am not satisfied that Mr Tracey is a "fit and proper person" and accordingly, I must refuse the application to issue a permit.
The reasoning of the Full Bench was more explicit. The Full Bench concluded that the power to impose conditions was enlivened only once a conclusion had been reached that a person was a fit and proper person. The reasoning of the Full Bench thus stated in part as follows:
[43] It is firstly to be observed that the exercise of the power to impose a condition on an entry permit when it is issued is discretionary. Secondly, an entry permit will only be issued if the Commission is satisfied that the officer of the applicant for a permit is a fit and proper person to hold an entry permit. If the Commission is not satisfied that the officer is a fit and proper person to hold an entry permit, there is no power in s.512 to issue the permit. It must follow that the question of whether the Commission will impose a condition on an entry permit when it is issued will arise only after the Commission is first satisfied that the officer of the applicant for a permit is a fit and proper person to hold the permit.
[44] As s.512 makes clear, entry permits may only be issued to a person whom the Commission is satisfied is a fit and proper person to hold an entry permit. It would undermine the legislative intent that underpins s.512 if a person who is assessed as not being a fit and proper person to hold an entry permit could nevertheless be issued with such a permit merely by the imposition of conditions. The power to impose a condition under s.512 seems to us to be exercisable usually after the Commission is satisfied that a relevant official is a fit and proper person to hold an entry permit but there is some concern, for example about the past conduct of the official having regard to the permit qualification requirements in s.513(1), which falls short of rendering that official unsuitable to hold an entry permit. It may also be the case that in an appropriate application the question whether a person is a fit and proper person to hold an entry permit is very finely balanced and the imposition of a condition might tip the balance in favour of the level of satisfaction required.
32 With respect to the Full Bench, its approach to the construction of s 515 was erroneous. First, the construction failed to pay sufficient attention to the text of the provision. The text of s 515(1) ("when [an entry permit] is issued") stands in contradistinction to that of s 515(4) ("after it has been issued"), suggesting that s 515(1) contemplates consideration of whether conditions should be imposed conjointly with consideration of whether the official for whom the permit is sought is a "fit and proper person to hold the entry permit".
33 Second, the Full Bench's concern that it would "undermine the legislative intent that underpins s.512 if a person who is assessed as not being a fit and proper person to hold an entry permit could nevertheless be issued with such a permit merely by the imposition of conditions", begs the question as to the nature of the assessment required by s 512.
34 At [25], the Full Bench correctly stated that the question of whether an official is a fit and proper person to hold a permit will necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. The Full Bench went on to state that "[t]hese are all to be found in Part 3-4 of the Act". It is here that the Full Bench, with respect, fell into error. Certainly, some limitations and conditions are found within the Fair Work Act: a requirement to give notice of an intended entry is one example (s 487); a requirement that a permit holder exercising a right of entry does not "intentionally hinder or obstruct any person, or otherwise act in an improper manner" is another (s 500). However, the conditions that are specificially set forth in the Act need not be exhaustive, because the Commission is empowered by s 515 to impose others.
35 Once it is recognised that the assessment of fitness and propriety is to be made by reference to all of the applicable conditions upon the exercise of rights conferred by the grant of a particular permit, including any imposed under s 515, there is no undermining of legislative intent as the Full Bench suggested. This construction of s 515 is to be preferred, as it is consistent with the discernible legislative intent to provide the Commission with a capacity to facilitate the balance contemplated by s 480 and, regarding the imposition of conditions, to do so harmoniously both in relation to the grant of a permit and the Commission's supervision of its subsequent use (see ss 505(2), 505A(3)(a), 507(1) and 508(2)).
36 This preferred construction of s 515 also avoids the tension inherent in the alternative construction. It would be surprising if the legislature intended that, having just determined that a person is a fit and proper person to hold an entry permit by reference to the matters set out in s 513(1), the Commission should as a second step impose further conditions on the permit directed to the same considerations (s 515(2)). In each of the two examples given by the Full Bench at [44] as to when such a two-step process might arise, there is a question as to whether the first step (satisfaction as to fitness and propriety) was properly reached. The examples relied upon by the Full Bench to support its contrary construction of s 515, with respect, are not persuasive.
37 Reference was also made to observations made by the Full Court in Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23, (2009) 175 FCR 201. The construction of a particular statutory provision must, of course, be dictated by the terms of the text of the legislation in question, and the observations which follow were made about a different statutory scheme. Nevertheless, the observations made are illustrative of the preferred approach in the present case.
38 Section 152AT(4) and (5) of the Trade Practices Act 1974 (Cth) there provided as follows:
(4) The Commission must not make an order under para (3)(a) unless the Commission is satisfied that the making of the order will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.
(5) An order under para (3)(a) may be unconditional or subject to such conditions or limitations as are specified in the order.
Jacobson, Lander and Foster JJ at 228 concluded:
[147] Another matter which arose on this application and which was argued before the Tribunal was the effect of s 152AT(5). As has already been observed, the Tribunal did not consider whether it could impose conditions or limitations so as to allow it to reach the satisfaction required by s 152AT(4) because it was not satisfied that the making of the orders exempting Telstra would promote the LTIE.
[148] Mr O'Bryan contended that s 152AT(5) had no part to play unless the ACCC (or the Tribunal on review) was of the opinion that the making of the order will promote the LTIE or, if not of that certain opinion, at a point near to being of that opinion. He was not able to articulate the point at which s 152AT(5) would engage, save that the ACCC must reach some sort of prima facie opinion that an order exempting would promote the LTIE but has unarticulated reservations.
[149] We cannot accept that contention. The purpose of s 152AT(5) is to give the ACCC a tool to fashion the appropriate conditions and limitations when it thinks that the application by the carrier or carriage service provider for an order exempting that carrier or carriage service provider ought to be made. The purpose of s 152AT(5) is to allow the ACCC to fashion appropriate conditions and limitations which would go towards promoting the LTIE.
[150] In our opinion, it cannot be said that there is some threshold that must be reached by the applicant before the question of conditions or limitations arises. As we have already noted, the ACCC is not constrained to either grant or refuse the application. What the ACCC must do on an application is to consider whether it should make an order of the kind in s 152AT(4) and, in doing so, must at all times keep in mind whether the order could be made if appropriate conditions and limitations were imposed.
39 Notwithstanding the error in construction on the part of the delegate and the Full Bench, the relief sought by the Maritime Union should nevertheless be refused in the exercise of the Court's discretion for the following two reasons.
40 First, before the delegate the Maritime Union did not advance a submission as to the ambit of the power conferred by s 515 or as to its proper application to any permit issued to Mr Tracey.
41 Second, it was common ground between the parties that it remains open to the Maritime Union to make a fresh application for an entry permit for Mr Tracey. Although the principal submission advanced on behalf of the Maritime Union on the limited construction of ss 512 and 513 has been rejected, the consideration of any such fresh application would differ from that in the instant case insofar as, in accordance with these reasons, the consideration of a fresh application would take into account the power to impose conditions under s 515 without the need for Mr Tracey to first be found a "fit and proper" person.