1. Only a brief summary of the relevant facts is necessary for the purposes of these Reasons.
2. Pako has provided labour hire services in the meat processing industry across Australia since around 2014, before the LHL Act and its licensing system came into effect (in June 2018 and April 2019 respectively).
3. In around July 2019, under section 17 of the LHL Act, Pako applied for a licence to provide labour hire services. It was licensed as a provider of those services on 26 August 2020 for three years, with an Expiry Date of 26 August 2023 (Pako's Licence).
4. Despite the Authority sending six reminders about the need to renew in April, May, June, July and August 2023,[4] Pako did not do so before the Expiry Date. After realising that fact, Pako twice emailed the Authority on 13 September 2023 asking for access to a link to renew and apologising for being late.[5]
5. On the same day, the Authority responded stating that, as Pako's Licence had expired, it could not be renewed and Pako was required to make a new application.[6] Pako was informed that, as that Licence had expired, it was 'unable to provider (sic) labour hire services until a new application has been submitted and a new licence granted'. Pako made its New Application on 15 September 2023.[7]
6. After various requests for information were made and responded to and inquiries made, on 3 March 2025, the Authority made the Refusal Decision.
7. As I understood it, Pako had continued to operate as a provider of labour hire services in the period 13 September 2023 to the date of the Refusal Decision.

1. Before addressing the interpretation issue, I summarise relevant features of the LHL Act.

1. Relevantly, section 1 says that the purposes of the LHL Act are:

(a) to establish a licensing system to regulate the provision of labour hire services; and

(b) to impose civil penalties upon providers and users of labour hire services who obtain those services from anyone other than licensed providers of labour hire services; and

(c) to establish the [Authority] and the office of Labour Hire Licensing Commissioner, and to provide for their functions and powers; and

(d) to provide for the development of a voluntary code of practice for the labour hire industry; and

(e) to provide for the appointment of inspectors to monitor compliance and to provide for their powers

(a) to protect workers from being exploited by providers of labour hire services and hosts; and

(b) to improve the transparency and integrity of the labour hire industry.

1. Relevant definitions are as follows:[8]
   • A person provides labour hire Services:

(a) in the course of conducting a business of providing recruitment or placement services, the provider recruits one or more individuals for, or places one or more individuals with, another person (a host) to perform work in and as part of a business or undertaking of the host; and

(b) the provider also procures or provides accommodation for the individuals for some or all of the period during which the individuals perform the work; and

(c) the individuals are workers for the provider, within the meaning of section 9(2)(a);

(a) in the course of conducting a business of providing contractor management services, the provider recruits one or more individuals for, or places one or more individuals with another person (a host) to perform work in and as part of a business or undertaking of the host; and

(b) the individuals are workers for the provider, within the meaning of section 9(2)(b).

• Host means 'a person to whom a provider provides labour hire services';
• Interested person means 'a person or organisation who has an interest in the protection of workers or the integrity of the labour hire industry';
• Provider is a person who provides labour hire services if 'in the course of conducting a business, the provider supplies one or more individuals to another person (a [Host]) to perform work in and as part of a business or undertaking of the host and the individuals are workers for the provider, within the meaning of section 9(1)';
• An individual is a Worker for a Provider:

(a) an arrangement is in force between the individual and the provider under which the provider supplies, or may supply, the individual to one or more other persons to perform work; and

(b) the provider is obliged to pay the individual (in whole or part) for the performance of the work by the individual, whether directly or indirectly through one or more intermediaries;

Or if an arrangement is in force between the individual and the Provider under which the Provider:

(a) recruits the individual for, or places the individual with, one or more other persons to perform work, being persons who are obliged to pay the individual (in whole or part) for the performance of the work by the individual, whether directly or indirectly through one or more intermediaries; or

(b) recruits the individual as an independent contractor for one or more other persons to perform work, and manages the contract performance by the independent contractor.

1. Section 17 provides for the making of an application for a Licence authorising the person to provide Services. Section 17(2) specifies the information required to accompany an application. That information includes details of officers of bodies corporate or those of natural persons who have decision making roles in a business. The person who has responsibility for the day to day operations must be nominated.
2. The application must include declarations made by relevant individuals including that they are fit and proper (section 17(4)). Whether a person is regarded as fit and proper is addressed in Division 2 of Part 3 and defined in section 22 of the LHL Act.
3. An application must provide information about whether the applicant is registered with the Australian Taxation Office[9] and WorkSafe Victoria[10] (section 19(1)).
4. Section 18 provides that a person is not eligible to make an application for a Licence in certain circumstances, including where, within the preceding two years, a Licence (however held) was cancelled (other than on the initiative of the person or other prescribed purposes[11]).
5. Whether making a new application (including where the applicant is providing Services at the time) or renewing an existing Licence, sections 23(1) and (2) require that the application include a declaration that relevantly, to the applicant's knowledge the applicant has complied with specified legal obligations or has a plan to ensure it does so. The specified legal obligations are:

(a) laws relating to taxation;

(b) laws relating to superannuation;

(c) laws relating to occupational health and safety;

(d) laws relating to workers' compensation;

(e) labour hire industry laws;

(f) workplace laws;

(g) migration laws;

(h) applicable minimum accommodation standards;

(i) any other prescribed laws.

1. Renewals of Licences are dealt with in section 28 which is set out below.
2. Providers have annual reporting obligations, including confirmation about compliance with taxation and WorkSafe obligations and other matters going to:[12]
   • The number of workers engaged;
   • The kind of work done;
   • Any incidents that were required to be reported under workplace laws;
   • The number of workers' compensation applications made;
   • The industrial instruments that determined the terms of their employment or engagement; and
   • Whether workers held temporary work visas in the reporting period.
3. An annual Licence fee must be paid (section 35).
4. Section 32 allows for any Interested Person to object to the grant or renewal of a Licence, including on the basis relevant persons are not fit and proper or because the applicant does not or will not comply with the legal obligations referred to in section 23. As per the definition set out earlier ([20] above), Interested Persons are those who have 'an interest in the protection of workers or the integrity of the labour hire industry'.
5. Section 44 requires Providers to notify the Authority of any changes prescribed by the Labour Hire Licensing Regulations 2018 (Vic) (LHL Regulations) within 30 days of the change. The prescribed changes are a relevant person no longer being fit and proper or not being in compliance with the section 23 legal obligations.[13]
6. Relevantly, section 26 provides that a Licence comes into force on the day specified in the Licence and remains in force until the expiry date specified in the Licence. That date must not be later than three years after the day on which the Licence came into force.

1. Part 3, Division 7 of the LHL Act empowers the Authority to vary, suspend and cancel Licenses.
2. While variation and cancellations require a show cause process to be followed (under section 42), the suspension powers can be used immediately as long as the Provider receives written notice including certain matters and the suspension period does not commence until that notice has been given (under section 39).
3. The Authority may only suspend a Licence under section 39(1) if it:
   • Believes on reasonable grounds that the holder of the Licence has contravened the LHL Act or Regulations; or
   • Is no longer satisfied that each relevant person in relation to the Licence is a fit and proper person (as described in section 22); or
   • Is not satisfied that each relevant person in relation to the Licence is compliant with legal obligations as described in section 23; or
   • Is satisfied that the holder of the Licence has given materially incorrect or misleading information to the Authority or that the Licence was obtained or renewed because of materially incorrect or misleading information;

• The Authority is satisfied that, unless the Licence is suspended, substantial harm or detriment of any kind will be caused to one or more persons;

• The Authority is satisfied of the prescribed matters, if any. I note that none have been prescribed.

1. Part 5 of the LHL Act deals with the powers of inspectors in respect of the production of documents (Division 2) and, amongst other things, their powers of entry, search and seizure (Division 3).
2. Under section 72, those powers apply to entry and search of properties and the seizure of things from non-licensed occupiers. The powers are to be exercised for the purpose of monitoring compliance with the LHL Act and/or Regulations.
3. Part 6 of the LHL Act is headed 'Civil penalties' and grants the Authority the power to take civil action for contraventions of the LHL Act or the LHL Regulations.
4. The Authority may seek the imposition of pecuniary penalties or any other order the court considers appropriate (section 93(2)). Those 'other' orders made include an injunction or 'any other orders that the court considers necessary to stop the conduct or remedy its effects' (section 93(3)).
5. Section 93(5) says that, for the purposes of determining the amount of a pecuniary penalty, the court must have regard to:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered as a result of the contravention; and

(c) the circumstances in which the contravention took place.

1. Section 93(7) says that a civil action for a contravention must be made within six years of the contravention.

1. Section 48 of the LHL Act requires the Authority to establish and keep a Register of Providers.
2. Section 49 explains that the purposes of the Register are to record information about Licence holders and Licences including conditions, variations, suspensions and cancellations.
3. The Authority 'must' record in the Register a range of details about Providers and, relevant to this matter, the 'date on which the [Licence] came into force and its expiry date'.
4. Section 29(9) of the LHL Act requires the Authority to record the fact of an application for renewal of a Licence on the Register.
5. The Authority may include other information on the Register such as the name and business names of entities where there has been a Licence refusal, a Licence renewal refusal, suspension and/or cancellation or where an investigation or proceedings are on foot (section 49).
6. One of the other purposes of the Register is to make certain information collected by the Authority available to the public (section 48(2)(d)).
7. Any person can search and take copies of the whole of, or extracts from, the Register (section 48(4)).
8. Section 49 provides for information to be published on an internet site maintained by the Authority. That may include information of the kind described above and other Provider details such as the dates Licences commence and expire.

1. The LHL Act commenced on 26 June 2018 but the licensing requirements in issue, which are contained in Part 3 of the LHL Act, did not come into force until 29 April 2019.
2. At the hearing, there was discussion about the significance of the commencement date for the LHL Act as a whole (26 June 2018), the commencement date of the provisions in Part 3 of the LHL Act, including section 28 (29 April 2019) and the commencement date for the LHL Regulations (23 October 2018). Pako submitted that the fact the LHL Regulations (including regulation 13 which contains a relevant definition - see further below) was made before section 28 came into force meant an aspect of the Authority's submissions about the significance of regulation 13 could not be accepted.
3. In the end, I was not persuaded that anything relevant to my current task could be drawn from the fact that regulation 13 (prescribing a period before which a renewal application could be made) came into force before section 28(1). That was because there was nothing in the LHL Act or Regulations which clarified the issue either way.

Conclusions on the nature of the licensing system

1. As indicated by the above summary, the licensing system established by the LHL Act and Regulations requires high levels of disclosure and reporting by Providers at the time of application, renewal and during the life of a Licence.
2. It is incumbent on Providers to comply with all laws relevant to the Services they provide, including those which concern the proper payment of workers and appropriate and safe working conditions.
3. Through the Register and the Authority's website, the public and other Interested Persons are readily able to ascertain whether a person or body corporate is licenced and, if so, when the Licence commenced and will expire. It appears that the section 4(b) object of transparency is intended to be achieved by those means and by allowing Interested Persons to make objections to the grant of Licence applications or renewals.
4. Pako proposed that the licensing system provides something akin to rights for Providers: they can have some confidence that, provided they remain compliant with all legal obligations, they will hold their Licence for the full three year term and can expect to receive a favourable response to an application for renewal. While accepting that the licensing system may provide confidence of that kind for Providers, as discussed further below, I did not consider those expectations ought to be described as 'rights' or ought to be regarded as creating something similar to legally enforceable 'rights'.
5. Having regard to the stated purposes, objects and content of the LHL Act, in my view, the Parliament intended to impose high standards of compliance and accountability on the labour hire industry. The obligations on Providers require high standards of conduct and regular engagement with the Authority as regulator. I read the LHL Act as imposing all of those obligations on Providers as a means to ensure that the objects are met, namely, the protection of workers from exploitation by Providers and transparency and integrity in the industry.
6. It is in light of those conclusions, I have considered how to interpret section 28 of the LHL Act.

The dispute: the correct interpretation of section 28

(1) The holder of a licence may make an application for renewal of the licence during the prescribed period before or after the expiry date of the licence.

(2) An application for renewal of a licence must -

(a) include the prescribed information; and

(b) be accompanied by the prescribed application fee (if any).

(3) If an application is made for the renewal of a licence before the expiry date, the licence is taken to remain in force until -

(a) the licence is renewed; or

(b) the application is withdrawn; or

(c) the application for renewal is refused.

(4) If an application is made for the renewal of a licence after the expiry date, the licence is taken, despite the expiry of the licence, to have been in force from the expiry date and to remain in force until -

(a) the licence is renewed; or

(b) the application is withdrawn; or

(c) the application for renewal is refused.

For the purposes of section 28(1) of the Act, the prescribed period before the expiry of the licence is 6 months.

1. There was no controversy between the parties about section 28(2).
2. As is apparent, sections 28(3) and (4) make provision for an existing Licence holder to be able to continue to provide Services until the renewal application is finalised, whether by the grant or refusal of a further Licence or due to the withdrawal of the application.
3. The differing submissions as to the impact of section 28(4) on the meaning of section 28(1) are discussed later.
4. The primary issue between the parties was whether section 28(1) should be read in one of the following ways.
5. Pako's position was that an application for renewal may be made in the six month prescribed period before the expiry date and at any time after the expiry date.
6. In oral submissions, Pako's counsel confirmed that, on its construction, there was no time limit on when an application for renewal could be made and, specifically, it was not confined to the maximum Licence period of three years specified in section 26. Pako's counsel further clarified its position was that, if an application for renewal was made 'after' the expiry date, as a consequence of section 28(4), the Provider was taken to have been licensed since the day after the expiry date of their original Licence. That is, on making an application, they are licensed with retrospective effect.
7. The Authority's position was that an application for renewal may be made in any prescribed period before the expiry date or the prescribed period after the expiry date. However, the effect of regulation 13 of the LHL Regulations is that there is only a prescribed period for when an application for renewal may be made before the expiry date.
8. As a consequence, where there is no prescribed period for an application for renewal to be made after the expiry date, no renewal applications can be made at all once a Licence has expired. Further, the Authority submitted that, unless and until a prescribed period after the expiry date is included in the LHL Regulations, section 28(4) cannot be relied on.
9. The practical consequences for Pako are:
   • If the first reading applies, it made its renewal application in time (treating the New Application made on 15 September 2023 as a renewal application) and further, because of section 28(4), it was entitled to continue to provide Services up to when the Refusal Decision was made in March 2025 and beyond, because the 'renewal application' has not been granted, withdrawn or refused; or
   • If the second reading applies, it was not entitled to make a renewal application at any time after 26 August 2023 and it was not entitled to continue to provide Services thereafter. Further, given the Refusal Decision, it currently remains unlicensed and unable to provide Services.

1. The parties were essentially in agreement as to the principles of statutory interpretation.[14]
2. The following comes from the Authority's submissions.
3. The principles of statutory interpretation require a court to consider 'the ordinary and grammatical meaning of the words used, taking into account both context and legislative purpose'.[15]
4. In order to ascertain the 'context' and 'legislative purpose' of a particular statutory provision, a court can consider:

1. Time, place and any other circumstance that could rationally assist understanding of meaning;[16] 2. The facts and circumstances which were within the knowledge or contemplation of the legislation, including the matrix of facts in which the statute was enacted;[17] and

• The state of the law before the enactment of the legislation, including to discover the mischief intended to be remedied.[18]

5. In R v A2,[19] Kiefel CJ and Keane J stated at [33]:

Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. 'Mischief' is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

1. The context cannot, however, displace the actual language used in the statute.[20]
2. Section 35(a) of the Interpretation of Legislation Act 1984 (Vic) (ILA) provides that a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object.
3. Delegated legislation made under an Act cannot be taken into account for the purposes of the interpretation of the Act itself. That position is consistent with section 22 of the ILA which provides that subordinate instruments must be construed as operating to the full extent of, but so as not to exceed, the legislative power of the State or the power to make the subordinate instrument covered by the Act under or pursuant to which it is made.
4. Pako's written submissions included the following proposition:[21]

All words in a statute should be given work to do, since the drafters could not have intended to insert provisions which have no substantive effect:

1. I refer below to its related submissions as to surplusage.
2. Pako submitted that an analysis of the consequences associated with differing interpretations can clarify a provision's true meaning. It referred to a passage in McHugh J's decision in Kingston v Kerprose.[22] The full passage was as follows:

If the grammatical meaning does give rise to an injustice or anomaly, however, a real doubt will usually arise as to whether Parliament intended the grammatical meaning to prevail . . . As Cardozo J said in Re Rouss . . . 'Consequences cannot alter statutes, but may help to fix their meaning'. A resulting anomaly or injustice is not itself, however a ground for departing from the grammatical meaning. Equally the natural and ordinary grammatical meaning of the provision is not decisive.

1. Pako also relied on CIC Insurance Ltd v Bankstown Football Club Ltd[23] and the High Court of Australia's statement that:

Further, the inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

1. The 'steps above' were of the same kind as those summarised above in [71]-[72].
2. I found the following commentary from 2.17 in the 10th edition of Statutory Interpretation in Australia to be consistent with the thrust of the parties' submissions and of assistance (citations footnoted below):[24]

An expression that has been used to complement the concept of 'constructional choice' is 'relative coherence'. This term was adopted by Gageler and Keane JJ in Taylor v Owners - Strata Plan No 11564:

Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.

The expression 'relative coherence' was endorsed by Kiefel CJ, Bell and Nettle JJ in SAS Trustee Corporation v Miles and applied in Edwards v Virgin Blue International Pty Ltd; Will v Brighton; Kirby v Health Care Complaints Commission. In ENT19 v Minister for Home Affairs Kiefel CJ, Gageler and Jagot JJ put it that 'provisions are intended to give effect to harmonious goals'.

Pako's submissions on section 28(1) of the LHL Act

1. Pako submitted that section 28(1) ought to be read as referring to two points in time when an application to renew a Licence may be made:
   • During the prescribed period before the expiry date of the Licence; and
   • At any time after the expiry date.
2. Pako submitted that the reference to 'the prescribed period' was confined to the time before the expiry date and had no application or relevance to the time after. While not submitting that the content of regulation 13 bore upon the proper meaning of section 28(1), Pako submitted that the regulation was concerned only with the time before expiry which, by virtue of regulation 13 was six months.
3. In support of its position regarding the 'after' period, reliance was placed on the wording of section 28(4), the ordinary reading of which was said to confirm that an application for renewal could be made at any time after expiry. It was noted that there was no qualification to section 28(4) such as a reference to the application having been made after the expiry date and during the prescribed period.
4. Pako submitted that, if section 28(1) was read in the manner proposed, each and every word was given meaning and work to do and further, that section 28(4) had meaning and work to do at all relevant times. It submitted that, on the Authority's reading, section 28(4) was surplus because, with no prescribed period, it had no operation.
5. In support of that position, Pako's counsel relied on a 1905 High Court of Australia decision[25] (which in turn relied on a 1688 decision[26]) to contend that the Authority's reading would lead to 'surplusage'. The High Court described that concept in the context of statutory interpretation as follows, (after referring to the 1688 decision):[27]

It was said to be a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other constriction they may be made useful and pertinent.

1. At the hearing, Pako submitted that, while both parties' proposed interpretations of section 28(1) were grammatically plausible, its construction gave meaning to all of the words in the section and was consistent with section 28(4). Further it submitted it ought to be assumed that all of the words in section 28 were included for a reason.

1. As to the purpose of the section, Pako submitted that it appeared to allow renewal applications to be made before and after the expiry of the Licence, ensuring that the Licence holder can be confident their Licence will be taken to be in force while the renewal application is pending (on the basis of sections 28(3) and (4)). It submitted:

The protection afforded to the [Licence] holder while the Authority is considering the renewal application is an important feature of the provision. The purpose is to allow the [Licence] holder to continue to operate while the administrative task of considering the application is considered. It is a commonsense approach to licence regulation that does not offend the objectives of the statute, and is consistent with it, because the [Licence] holder has previously had its [Licence] approved by the Authority. It follows that there is a prima facie assumption that it continues to meet the [Licence] requirements until found otherwise. To exclude the words of section 28 that provide this valuable protection would be to undermine the purpose of the clause.

1. At the hearing and in response to comments I made about what appeared to be a regulatory regime primarily directed towards the interests of workers, Pako submitted that the purpose of the LHL Act was to establish a licensing system which was not stated to be solely for the protection of workers or not to be intended to take account of Providers. As indicated earlier, reference was made to Providers having 'rights' under the system.
2. Pako said that the licensing system provided certainty to Providers, a timeline and a guarantee that they could hold their Licence until it expired. In support of that submission, I was referred to the High Court of Australia's decision in Lacey v Attorney-General of Queensland.[28] The relevant passage was at [44]:

The application of the rules [of construction] will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.

1. I was invited to resist the temptation to conclude the LHL Act was not one that balanced rights. While it was conceded that it was mainly directed at protecting workers, I was asked to give meaning to the words in section 28(1) in respect of renewals and the rights of Providers.[29]

1. Pako referred to section 1 of the LHL Act and the regulatory scheme as a whole, submitting that the 'broad objectives of the statute' were to:

(a) Regulate the labour hire industry with the aim of protecting vulnerable labour hire workers;

(b) Institute a licensing system which fairly balances the need of labour hire users and Providers with the protections to be afforded to the vulnerable workers;

(c) Penalise those in the industry who operate outside the licencing system; and

(d) Provide powers to the Authority to give effect to those aims.

1. After referring to the consideration of consequences as a tool of statutory interpretation, Pako's written submissions stated that the Authority's interpretation could be viewed as follows (footnotes omitted):
   1. A labour hire provider that inadvertently misses a renewal deadline ought not face the draconian consequence of having to shut down its business immediately until a new license is submitted and considered by the Authority (which can be at its leisure given there is no timeline by which a determination must be made, as demonstrated by this case). That would mean that a labour hire business would need to shut down entirely. This would likely be the end of it. That would be a harsh outcome that is disproportionate to its mistake. That is the construction contended for by the Authority. That is not consistent with the objective of a system that fairly balances the need of labour hire users and labour hire providers.
   2. A good example of how the legislation would, if construed the Authority's way, produce an unreasonable outcome has occurred with Pako. Through poor administration, it inadvertently failed to apply to renew its license prior to its expiry. Several weeks later, it made its application indeed, the evidence relied on by the Authority was that there was around 19 minutes between Pako gaining actual knowledge of the issue and its attempt to renew. Around 18 months later, a significant proportion of which has been caused by the Authority not responding in a timely way, Pako now stands accused of operating without a license for the entire duration of this period. What was Pako supposed to do? Shut down its operations and make all employees redundant? Stop supplying the 5% to 10% of the meat industry in Victoria that depends on its labour hire? Could Parliament have really intended this outcome from a mere administrative error that resulted in an application being made several weeks later than it should have? It seems unlikely, bordering on absurd.
2. At the hearing, the Authority's interpretation was said to be a 'draconian regime' and to be 'potentially catastrophic' for Providers who are unable to continue to provide Services until their Licence is renewed. It was noted that there was no mention of such an intention in the Explanatory Memorandum or other extrinsic materials.
3. The submissions went on to propose that Pako's preferred construction would ensure that a Provider who brings their Licence renewal application after its expiry would still be subject to the regulatory powers of the Authority. Reference was made to the compliance powers set out in Part 3, Divisions 6 and 7 of the LHL Act which were said to 'provide enforcement capabilities to address any potential for exploitation'(see summary at [32]-[40] above).
4. It was suggested that consideration of the reasons for the failure to apply on time would be relevant to the Authority's substantive consideration of any renewal application, 'such that any misuse of the ability to apply after expiry could readily be identified and stamped out'.
5. The final written submission was that the LHL Act:

seeks to regulate the industry to prevent exploitation, not to penalise otherwise compliant businesses for minor oversights. An interpretation of the Act that favours regulation for its own sake, as appears to be the Authority's position, does not align with its intended objectives.

1. When I enquired, Pako's counsel stated that, on its reading of sections 28(1) and 28(4), 'after' meant at any time after the relevant expiry of a Licence and so an application for renewal could be made up to and beyond the standard three year Licence term and even up to 10 years after the Licence had expired. Pako also submitted that the effect of section 28(4) would be that the Provider was to be treated as having been registered from the day after their Licence had expired. It was conceded that the latter was 'generous' and 'might raise eyebrows'.
2. At the hearing, further submissions were made on the question of the Authority's enforcement powers. Pako submitted that, while its proposed reading would mean the relevant Provider could not be prosecuted for operating unlicensed (contrary to section 13), it could be prosecuted for other breaches of its Licence obligations such as failing to provide annual information (under section 34), to pay annual Licence fees (under section 35) and to give notice of certain changes (under sections 43 and 44).
3. The deterrent effect of those prosecutions was said to lie in the civil penalties which could be applied which were comparable to those for operating unlicensed.
4. I note that the penalty for a breach of section 13 by a body corporate is a maximum of 3200 penalty units. The same maximum applies to a body corporate:
   • Which engages in prohibited avoidance arrangements (section 16(2));[30] or
   • Fails to within 30 days notify the Authority of prescribed changes, such as a relevant person no longer being fit and proper or compliant with their obligations under section 23 (under sections 43, 44(1) and regulation 24).
5. All other civil penalties are set at a maximum of 800 penalty units, except for two which are set at 160 penalty unit.
6. As to timing, it was suggested that the length of time between the expiry of a Licence and application for its renewal would be a factor in the Authority's decision making, with a longer delay being a more significant factor. It was suggested that approach would strike a fair balance between the key objectives of protecting workers and the rights of providers and would not undermine the former objective.
7. It was contended that 'little to no harm' would be done to workers as a result of any uncertainty about whether a Provider held a current Licence: a check of the public Register would indicate to others that the Provider was not licenced and that would harm the Provider and no one else. I understood that to presume that other operators in the industry would not contract or otherwise deal with an unlicensed Provider.

The Authority's submissions on section 28(1) of the LHL Act

1. The Authority submitted that an ordinary and grammatical meaning of the words used in section 28(1) is that 'the prescribed period' is the descriptor for both the prepositions 'before' and 'after'. In other words, it proposed that it should be read as (additional words underlined):

The holder of a licence may make an application for renewal of the licence during the prescribed period before or the prescribed period after the expiry date of the licence.

1. The Authority submitted that Parliament intended for the executive to be able to prescribe a period in delegated legislation which allowed for applicants to make a renewal application either before or after the expiry of their Licence. It was said to be 'common in the English language to not repeat an adjective where it is intended to be used to describe more than one preposition'.
2. The Authority contended that the fact the executive 'ultimately only prescribed a time before the expiry reflects that it did not wish to prescribe a time after the expiry date of the [Licence].' It was said to follow that, when read with section 28(1), sections 28(3) and 28(4) were only relevant to the extent that the executive has prescribed a period either before or after the expiry date of the Licence.
3. That interpretation was said not to render section 28(4) nugatory 'as it will come into effect if Parliament ever decides to amend the LHL Regulations to include a prescribed period after the expiry date'.
4. The Authority referred me to section 26 which makes clear that a Licence comes into effect on the day specified and remains in force until the specified expiry date and which cannot be later than three years after the day the Licence comes into force.
5. It noted that there is no provision in the LHL Act which grants the Authority (or Tribunal on review) a discretion to extend a person's Licence or extend the period in which a Provider can apply for renewal. In those circumstances and taking its reading of section 28(1), in the absence of a period after expiry being prescribed, a Provider can only apply for renewal up to the day of expiry.

1. The Authority's submissions started with the purpose of the LHL Act.
2. It submitted that Act was enacted in light of the 'significant evidence of exploitation of workers in the labour hire industry' and to address that mischief, referring to submissions made by the Authority in Labour Hire Licensing Authority v UNG Services Pty Ltd.[31]
3. Reference was also made to the LHL Act having a 'protective purpose' reflected in the key object of the Act being that in section 4(a) - that is to protect vulnerable labour hire workers from exploitation by Providers. It noted the related object in section 4(b), being to improve the transparency and integrity of the labour hire industry and therefore to improve commercial conditions for law abiding businesses.
4. Reference was made to the purposes in sections 1(a) and (b) of the LHL Act (see [18] above).
5. Referring to:
   • Section 13, which prohibits a person from providing Services unless the person is the holder of a Licence that is in force;
   • Section 14 which prohibits the advertising of Services by persons who are not licensed to provide them; and
   • Section 94 which identifies both of those provisions as civil penalty provisions,

the Authority submitted that it was 'thus critical' to the enforcement of those powers that it is 'patently clear' for the Authority, hosts, Providers, workers and the public to know whether a person holds a Licence or not. It noted that the Authority's publicly available and searchable website allows anyone to find out the status of a person or entity's Licence status.

1. The Authority posed the following as a consequence if Pako's interpretation of section 28(1) applied:

If Pako's construction is accepted, it would create confusion and uncertainty in the regulation and enforcement of the licensing system as it would not be certain whether a person's [Licence] had expired or not. It would lead to the absurd outcome that a [Provider] could continue to provide [Services] after its [Licence] had expired for years on end and if the [Authority] went to enforce the compliance of [section 13], that [Provider] could simply submit a renewal application and retrospectively fix any compliance issues. That would leave everyone in the dark as to who has a valid [Licence] at any given time. Such a construction of s28(4) would make enforcement near impossible and would be contrary to the clear purposes of the [LHL Act].

1. The Authority conceded that its construction 'may have harsh consequences for those like Pako who have inadvertently failed to apply for a renewal' before their Licence expiry date. However, it submitted it was a matter for the executive to remedy that impact by prescribing a period after the expiry date. It was not a matter that could be remedied by either the Authority or the Tribunal.
2. The Authority drew attention to the fact that the LHL Act allows the Authority (and so the Tribunal on review) to, under section 24(2), grant an applicant a Licence if it is satisfied that it is appropriate in all the circumstances, even if the application does not satisfy one or more matters in that subsection (which includes compliance with its legal obligations under section 23). As I understood it, that power could be made use of to balance the harsh consequences referred to above.
3. The Authority placed significance on how Pako's reading of section 28(1), including the proposed retrospective application of section 28(4), would hinder the Authority's capacity to enforce the LHL Act. Leaving aside differences between the parties as to whether it would be 'impossible' for the Authority to take enforcement action, the Authority submitted that, if a person or entity was not licenced, then they would not be subject to any regulation. It would show as not being licensed on the Register and public website and the Authority would have no power to check for compliance with matters such as the mandatory annual provision of information and payment of fees. Because that entity would not be on the Authority's 'radar' it would not be alert to investigating its compliance with the LHL Act in respect of the treatment of workers. It would be operating unregulated and without any oversight.
4. The Authority contended that, if Pako's reading of section 28(1) applied, if the entity became aware that the Authority was looking into whether it was providing Services unlicensed, it could simply apply to renew its Licence and the Authority would be unable to enforce the section 13 prohibition on operating unlicensed.
5. Further, if it was correct that there was no end date on when a Provider could apply for renewal, it could operate for more than the mandatory maximum three year period of a Licence and then, on application for renewal, be treated as if it had been licenced for that whole time, whether it be three, 10 or 20 years.
6. On Pako's submissions as to balancing rights of Providers against protection of workers, the Authority submitted that any implied rights of Providers as described appeared to be in excess of the express purposes of the LHL Act.

1. I accept that the wording in section 28(1) of the LHL Act is capable of two meanings, neither of which are wholly ungrammatical or unnatural. I further accept that the reading proposed by the Authority has some awkwardness attached to it.
2. After considering the parties' submissions in light of the statutory scheme and, in particular the licensing system described above, I find the Authority's proposed reading of the words in section 28(1) of the LHL Act is correct.
3. I agree with the Authority's submission that, as is common in the English language, an adjective is not repeated where it is intended to be used to describe more than one preposition. As a result, section 28(1) anticipates that regulations may be made specifying a period before and after the expiry of a Licence during which the Licence may be renewed. The fact no regulation has in fact been made for one of those options does not change the fact there is a power for one to be made.
4. I am satisfied that reading accords with the overall purposes and objects of the LHL Act and is consistent with a licensing regime that requires detailed information to be provided when applications are made, whether for a new or renewed Licence.
5. I reject the proposition that, when read within the context of the LHL Act's licensing system and section 28(4), the purpose of section 28(1) is to allow the Licence holder to continue to operate while the administrative task of considering the application is considered. Pako's submissions relied on that being a commonsense approach where the Licence holder had previously had its Licence approved by the Authority and contended that there was a prima facie assumption that it continues to meet the Licence requirements until found otherwise.
6. As summarised above, the system requires the same information on renewals as for a new application. Like new applications, renewal applications are notified to the public via the Register (and potentially the Authority's website). Interested Persons may make objections to applications whether they be new or renewals. Those provisions lead me to be satisfied that, on renewal, the same close attention to detail that is called for in new applications is again required, supported by the annual reporting. On my reading, no assumption as to compliance with all relevant laws and as to the fitness and propriety of the relevant individuals is made except as provided for in section 28(3) (where the application is made in the prescribed six month period).
7. The licensing regime I described earlier is not one which would sit comfortably with the notion that a previously licensed person or body corporate could fail to re-apply and then continue trading for an indefinite period without having updated the necessary information as at the expiry date and then each following year or being subject to the Authority's powers of suspension and cancellation. While I have noted that the Authority's inspectors can enter premises of non-licenced persons and take enforcement action against them, those processes lack the speed of an immediate suspension.
8. If it were the case that the Parliament intended that a Provider could obtain retrospective protection from prosecution from operating while unlicensed (under sections 28(1) and (4)), it would not only sit uncomfortably with the licensing system as a whole but could be expected to have made that intention express.
9. Even accepting that Providers acquire some expectations as a result of their licensing, Pako's interpretation of section 28(1) and (4) gives too great weight to those expectations as compared to the object of protecting workers and promoting transparency. Pako's reading in effect allows for shadow Providers to operate without oversight by the Authority or accountability to the broader public.
10. While accepting that section 28(1) might have been better drafted, I am satisfied that the Authority is correct to contend that the option of prescribing a period in which a renewal application can be made remains open and means that section 28(4) would then have work to do. The fact it is not operable now does not render the sub-section as surplus in the sense that it is 'superfluous, void, or insignificant' such that Pako's reading is required to make it 'useful and pertinent'. I agree with the Authority's submission that, later in the life of the now around six year old LHL Act, a period after the expiry date in which renewals can be made might be introduced with section 28(4) allowing Providers more time than at present.
11. Pako's submissions asked rhetorically what it should have done when it became aware Pako's Licence had expired. I reject the proposition that the LHL Act intended for it to continue to operate while unlicensed given it had the six months before to make its application for renewal so its business could have continued seamlessly from one Licence period to another.
12. Given the strict compliance required in other provisions, including as to notifying certain changes within 30 days (sections 43 and 44) and the provision of substantial information on an annual basis, it appears to me to be more consistent with the purposes and objects of the LHL Act to require attention to detail rather than to accommodate forgetful Providers. On that topic, I note again that six reminders were sent before Pako's Licence expired.
13. Where a Licence gives an entitlement in Victoria to provide Services (and provides protection for an individual or body corporate providing Services from prosecution), attention to its lifespan is not a mere administrative task but the foundation for the whole enterprise.
14. I am satisfied that the Authority's construction of section 28(1) is the choice with greater relative coherence with the identified statutory purposes and objects.

[1] In these Reasons definitions are shown through the bolding of names or terms. Italics and bold are used to define cases.

[3] Pako's written submissions dated 28 April 2025 and the Authority's written submissions received on 2 May 2025.

[4] Materials filed under section 49 of the VCAT Act (Section 49) 55-17 - 55-28.

[6] Section 49, 66. See also further request made by Pako and further response from the Authority Section 49, 69-70 and records of telephone calls Pako made to the Authority - 62 and 73a.

[7] See confirmation of receipt - Section 49, 73b.

[9] As required, for goods and services tax, pay as you go withholding tax and fringe benefits tax - see Labour Hire Licensing Regulations 2018 (Vic) (LHL Regulations), regulation 10.

[10] Holding a certificate of currency issued by WorkSafe - see LHL Regulations, regulation 10(2).

[11] The relevant prescribed purposes are in LHL Regulations, regulation 9.

[14] Pako's written submissions dated 28 April 2025 [8] and the Authority's written submissions [34]-[38].

[15] Referring to State of Victoria v Thompson [2019] VSCA 237 [27] citing R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 [124]-[125].

1. [16] Referring to Commissioner of State Revenue v EHL Burgess [2015] VSCA 269; (2015) 209 LGERA 314 (per Tate and Kyrou JJA and Robson AJA) (Burgess) [52] citing Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322, 332 [12]. The Court of Appeal upheld the correctness of Burgess and the way in which it set out and applied the principles of statutory interpretation in Australian Investment and Development Pty Ltd v Commissioner of State Revenue [2019] VSCA 69 [60] (per Hargrave, T Forrest and Emerton JJA) (Australian Investment and Development).
2. [17] Ibid, also citing Minister for Immigration & Multicultural Affairs v WABQ [2002] FCAFC 329; (2002) 121 FCR 251, 271 [71], 281 [106].

[18] Referring to Burgess, [51] citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

[19] [2019] HCA 35; (2019) 93 ALJR 1106, 1117 (R v A2), citations excluded.

1. [20] Referring to Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) [71], applied in Burgess [111] and Australian Investment and Development [78] and Gebrehiwot v McCutcheon [2020] VSC 109 [34], [69].

[21] Referring to Minister for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565 at 574 [63] (Gummow J); Australian Crime Commission v AA Pty Ltd [2006] FCAFC 30; (2006) 149 FCR 540 at 545 [25]; and Project Blue Sky [69].

[22] (1987) 11 NSWLR 404 at 421 (McHugh JA) citing Re Rouss 116 NE 782 at 785, citations omitted.

[23] [1997] HCA 2.

[24] Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; SAS Trustee Corporation v Miles [2018] HCA 55; Edwards v Virgin Blue International Pty Ltd [2020] SASFC 98; Will v Brighton [2020] NSWCA 355; Kirby v Health Care Complaints Commission [2021] NSWCA 139; and ENT19 v Minister for Home Affairs [2023] HCA 18 [87].

[25] The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 (Baume).

[26] R v Berchet [1794] EngR 1806; (1688) 1 Show KB 106.

[28] [2011] HCA 10 (Lacey).

[29] Pako referred me to the decision in Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36 [40] to submit that the usual approach to interpretation 'may be of little assistance where a statutory provision strikes a balance between competing interests' including where it 'reflects a political compromise'. There was nothing before me to indicate section 28(1) (or any other provision) of the LHL Act was such a provision.

[30] The prohibition on 'avoidance arrangements' in section 16(2) concerns arrangements entered into where it is known or there are reasonable grounds to suspect that they are for the purpose of avoiding or circumventing an obligation imposed under the LHL Act.

[31] [2022] VSC 640 [80]-[81].