FEDERAL COURT OF AUSTRALIA Barrie Goldsmith v Migration Agents Registration Authority [2001] FCA 407 ADMINISTRATIVE LAW -Migration – Migration agents – Registration of agents – Construction of regulations requiring agents to undertake continuing professional development courses – Compatibility of regulations with relevant statutory provision – Whether courses must be completed during currency of previous registration or whether it is sufficient they be completed prior to application for re-registration. Migration Act 1958, ss 286, 287, 289, 290, 290A, 299, 504 Acts Interpretation Act 1901, ss 15AA, 46(1)(b) Migration Agents Regulations 1998, reg 6, Schedule 1 BARRIE GOLDSMITH v MIGRATION AGENTS REGISTRATION AUTHORITY N232 of 2001 WILCOX J 11 APRIL 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N232 of 2001 ON APPEAL FROM THE GENERAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: BARRIE GOLDSMITH APPELLANT AND: MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT JUDGE: WILCOX DATE OF ORDER: 11 APRIL 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal made on 6 March 2001 be set aside. 2. In lieu of this decision, it be ordered that: (a) the respondent's decision of 28 November 2000 refusing the applicant's application for registration as a migration agent be set aside; and (b) the respondent enter the applicant's name into the register of migration agents maintained pursuant to s 287 of the Migration Act 1958 with effect from 28 November 2000. 3. The respondent pay the applicant's costs of this proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N232 OF 2001 ON APPEAL FROM THE GENERAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: BARRIE GOLDSMITH APPELLANT AND: MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT JUDGE: WILCOX DATE: 11 APRIL 2001 PLACE: SYDNEY REASONS FOR JUDGMENT WILCOX J: 1 This proceeding, instituted pursuant to s 44 of the Administrative Appeals Tribunal Act 1975, calls into question a decision of the Administrative Appeals Tribunal in relation to the registration of the applicant as a migration agent. The background facts and legislation 2 The applicant, Barrie Goldsmith, is a solicitor. During the period of 12 months that expired on 21 September 2000, he was registered as a migration agent pursuant to Division 3 of Part 3 of the Migration Act 1958. 3 Section 276 of the Migration Act, which appears in Division 1 of Part 3, defines the term "immigration assistance". Section 280 (which is in Division 2 of the Act) makes it an offence, subject to some presently immaterial exceptions, for a person (even a practising lawyer) who is not a registered migration agent to provide "immigration assistance"; as distinct from "immigration legal assistance", a term defined in s 277 of the Act. Section 281 imposes a heavy penalty on a person who is not a registered agent seeking or receiving a fee for giving immigration assistance. 4 Section 286 (which is the first section of Division 3 of the Act) provides for the registration of individuals as migration agents. Section 287 requires a register of registered migration agents to be kept by the Migration Agents Registration Authority ("the MARA"), the respondent to this proceeding. Registration is ordinarily for a period of 12 months: see s 299. 5 Application for registration must be in the approved form and preceded by a public notice: see s 288. Unless one of a number of specified sections prohibits registration, the MARA must register an applicant: see s 289. 6 One of the specified sections is s 290, which applies to all applicants for registration. It forbids registration if the MARA is satisfied that the applicant "is not a fit and proper person to give immigration assistance" or "is not a person of integrity". In considering those matters, the MARA is required to take into account (amongst other things) "whether the applicant has a qualification prescribed by the regulations or a knowledge of migration procedure that the Authority considers to be sound": see s 290(2)(b). 7 An applicant must not be registered if he or she has been refused registration within the period of 12 months prior to his or her application: see s 291. 8 Section 290A of the Act is at the heart of this case. It provides: "If the applicant has been registered at some time in the 12 months before making the application, he or she must not be registered if the Migration Agents Registration Authority is satisfied that the applicant has not met the requirements prescribed by the regulations for continuing professional development of registered agents." 9 The Migration Agents Regulations 1998 contain reg 6, dealing with continuing professional development. That regulation reads: "6. For section 290A of the Act, the requirements for continuing professional development of registered agents are set out in Schedule 1." 10 Schedule 1 of the Regulations includes the following items: "1. A migration agent must, in the year ending on the anniversary of the migration agent's previous registration, complete approved activities that have a value of at least 10 points. 2. At least 6 points must apply to core activities. 3. The Minister may specify, by notice published in the Gazette, approved activities, including: (a) court names; (b) course providers; (c) whether an activity is a core activity or an elective activity; (d) number of points for each activity." 11 On 14 July 2000 the MARA sent to the applicant a letter reminding him that his registration would expire on 21 September 2000 and informing him that, in order to re-register, he needed to complete the repeat registration form, pay the application fee of $870 and provide evidence that he had completed the continuing professional development ("CPD") requirements. Unfortunately, the applicant put this letter aside. He overlooked its requirements and took no action to renew his registration, or to undertake the necessary CPD courses, before 21 September 2000. 12 On 26 September 2000 the MARA advised the applicant that his registration had expired. He belatedly sprang into action. On 5 and 6 October 2000 the applicant undertook, or perhaps completed, four core CPD activities. They were worth a total of 11 CPD points. On 9 October 2000 the applicant applied for re-registration as a migration agent. After some correspondence, on 28 November 2000, the MARA refused this application. It gave the following reason: "The Authority is not satisfied that you have met the requirements prescribed by the regulations for continuing professional development of registered agents pursuant to section 290A of the Act." 13 The applicant applied to the Administrative Appeals Tribunal for review of the MARA's decision. In his argument before the Tribunal, the applicant accepted that s 290A of the Act applied to him, as he had been a registered migration agent during the period of 12 months immediately preceding his application for re-registration on 9 October 2000. But he contended that, upon its proper construction, s 290A required only that the CPD requirements be completed prior to the application for re-registration; it was not necessary that they be completed during the period of the earlier registration. The MARA contended to the contrary. Alternatively, the applicant contended that item 1 of Schedule 1 of the Regulations was invalid because of inconsistencies with the Act. The applicant cited to the Tribunal a passage in the judgment of Dixon CJ, Williams J, Webb J and Fullagar J in Shanahan v Scott (1957) 96 CLR 245 at 250: "… such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends." 14 In a decision handed down on 6 March 2001, the Tribunal rejected both the applicant's contentions. The Tribunal affirmed the MARA's decision. 15 On 13 March 2001 the applicant filed in this Court an application for review of the Tribunal's decision. Expedition was granted. I heard the application on 27 March 2001 and reserved my decision. The construction of item 1 of Schedule 1 (i) The applicant's submission 16 Mr R Beech-Jones, counsel for the applicant, argues that the purpose of s 290A and the Regulations is "to ensure that persons who are registered to act as migration agents have maintained their skills by participating in continuing professional development". He points out that s 290A covers two types of applicant: first, those who apply for renewal of their registration within the period of their current registration and, second, those who seek renewal within 12 months of expiration of their registration. He argues that item 1 of Schedule 1 to the Regulations "is consistent with the purpose of the scheme in its application to the first class of persons, but not the second". He says that, although reg 6 refers to CPD requirements for "registered agents", item 1 of Schedule 1 sets out what must be done by a "migration agent", who is not necessarily a registered agent. Mr Beech-Jones argues that, for people whose registration has expired, "the only sensible construction consistent with the purpose of [s 290A] is to read clause 1 of Schedule 1 … so that an applicant, who is not now registered but previously was, will have met the requirements if they have completed activities of at least 10 points within the 12 months prior to their application". Mr Beech-Jones says this construction is supported by the phrase "has not met" in s 290A of the Act. He submits that, by using the phrase "has not met", rather than "did not meet", the legislature indicated that the time at which the applicant must have met the CPD requirements was the date of the application, not the date of expiry of the previous registration. 17 Mr Beech-Jones concedes that his submitted construction of item 1 of Schedule 1 to the Regulations involves a departure from its ordinary meaning. But he says the departure is justified by the principle laid down by s 15AA(1) of the Acts Interpretation Act 1901. That subsection provides: "In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object." 18 Mr Beech-Jones also refers to statements of members of the High Court, in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 321 and Re Bolton; ex parte Beane (1987) 162 CLR 514, about the necessity of departing from the literal interpretation of statutory provisions where it is clear such a reading does not conform with the intention of the legislature and a literal interpretation would yield an absurd or inconvenient result. (ii) The respondent's submissions 19 Counsel for the MARA, Mr G T Johnson, argues there is no construction problem about item 1 of Schedule 1; its requirements are clear: a migration agent must complete approved activities having a value of at least ten points "in the year ending on the anniversary of the migration agent's previous registration". Mr Johnson argues it is impossible to construe those words as a requirement only that the CPD activities be completed before the date of the application for re-registration. He says there is no justification anywhere in the legislation for making a distinction between migration agents who apply for re-registration during the term of their registration and those who apply after the expiration of that term. 20 Mr Johnson says that the construction of item 1 of Schedule 1 advanced by the MARA, and accepted by the Tribunal, "helps ensure the competency and professional standards of migration agents and serves the protection of the public". He submits: "It provides an incentive for them to improve their knowledge and competency, by undertaking continuing professional development, while practising. It means that those who use a migration agent can know that, as well as the training that the agent received prior to current registration, the agent must, in the current year, while practising, get sufficient points to obtain further registration if he/she wishes to continue practice the following year. The price that if the agent does not do so, he/she will be refused registration and excluded for a year provides an incentive for the agent to remain up to date." (iii) Conclusions 21 I have no doubt that the purpose of requiring migration agents to undertake CPD courses is that stated by Mr Johnson. Contrary to some comments made by Mr Beech-Jones, s 290A and the CPD provisions in the Regulations are not punitive provisions. They are, as Mr Johnson says, protective provisions designed to reduce the likelihood of members of the public being misinformed by persons practising as migration agents. The need for continuing professional development of migration agents arises out of the frequency, and extent, of changes to the regulations governing available types of visa and the requirements and procedures relating to them. In the absence of regular updates of information, there is a serious risk of migration agents leading clients astray. 22 However, recognition of the important purpose served by CPD courses does not take one far in resolving the argument about the proper construction of item 1 of Schedule 1 to the Regulations. It is not easy to see that Mr Johnson's construction of the provisions is more conducive to satisfaction of the purpose than is that of Mr Beech-Jones. Assume the applicant in this case had undertaken in October 1999 the courses he completed on 5 and 6 October 2000. On anybody's view, he would have satisfied the requirements of Schedule 1; the points would have been earned during the currency of his previous 12 months registration. The applicant would have been entitled to renew his registration, either from the expiration of his current registration, on 21 September 2000, or during the ensuing 12 months; in either case, without undertaking any further CPD courses. It might not have been until nearly 12 months after commencement of the renewed term, up to nearly three years after his October 1999 courses, that he attended new CPD courses. Even if the applicant had renewed immediately, the gap between courses might have been nearly two years. It is difficult to see how this provides a better result, in terms of the purpose of the CPD requirements, than the situation where an applicant completes the requirements immediately before renewal of his or her registration. 23 However, while I do not think Mr Johnson's reference to the purpose of the legislation advances his argument about construction, I find his primary submission irresistible. As a matter of language, it is impossible to read item 1 of Schedule 1 as referring to some only of the persons who apply for re-registration, or as providing only that the CPD courses are to be completed prior to the application for re-registration. 24 Clause 6 of the Regulations describes the CPD requirements set out in Schedule 1 as being "[f]or section 290A of the Act"; that is as being prescribed for the purposes of that section. Section 290A imposes a barrier to registration of an applicant who fulfils the condition of having "been registered at some time in the 12 months before making the application". The barrier is that the applicant must not be registered if the MARA "is satisfied that the applicant has not met the requirements prescribed by the regulations" for CPD of registered agents. Section 290A makes no distinction between applicants answering the description of having been registered at some time during the previous 12 months who are still registered, at the date of application, and those who are not. Neither does reg 6 or item 1 of Schedule 1. As a matter of construction, the same rules apply to both categories of applicant. 25 Further, it is impossible, by anything that can properly be called a process of construction, to read the words "in the year ending on the anniversary of the migration agent's previous registration" as including a period of time that fell outside that year but was before the date of the application for re-registration. 26 The applicant's argument on the construction point must be rejected. The validity of item 1 of Schedule 1 (i) The applicant's submissions 27 Mr Beech-Jones submits that, if item 1 of Schedule 1 will not bear the construction for which he contends, it must be held to be invalid because of inconsistency with the scheme of the Act. He relies on the principle enunciated in Shanahan v Scott, quoted at para 13 above. Mr Beech-Jones points out that the Governor-General's power to make regulations is limited, by s 504 of the Act, to regulations "not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act". Mr Beech-Jones notes that the Administrative Appeals Tribunal accepted that item 1 of Schedule 1 of the Regulation "goes beyond the terms of section 290A in requiring that the CPD requirements be completed in the year ending on the anniversary of the agent's previous registration rather than in the year prior to the application for re-registration stated by section 290A". 28 The Tribunal went on to say: "… paragraph 1 of Schedule 1, whilst going beyond the terms of section 290A, can nevertheless be said to complement the purpose of the Act and should not be regarded as ultra vires and invalid. The Tribunal is aware that the consequences for the Applicant are severe, and will affect the livelihood of his business. However, severe consequences seem to have been contemplated by the Government, and, in all the circumstances, the Tribunal does not consider it has any justification for interfering with the ordinary meaning of paragraph 1 of Schedule 1 of the Regulations." 29 Mr Beech-Jones criticises that reasoning. He says: "It merely restates the AAT's view of the literal meaning of clause 1 of schedule 1. Presumably the reference to 'contemplated by the Government' is a reference to the content of the secondary material [described below]. However, on the approach adopted by the AAT that material could not be invoked to support the validity of the regulation … In any event, a reading of that material does not provide any support for the validity of a regulation in the form of clause 1 of schedule 1." (ii) The respondent's submissions 30 Mr Johnson disputes the application to this case of the principle stated in Shanahan v Scott. He says that reg 6 and item 1 of the Schedule to the Regulations "do not undermine or vary" the scope of s 290A; they merely supply the requirements envisaged by that section, namely the "requirements prescribed for continuing professional development of registered agents". (iii) Conclusions 31 In determining whether item 1 of Schedule 1 to the Regulations is inconsistent with the scheme of Part 3 of the Migration Act, the crucial provision is s 290A. The issue is whether Part 3 contemplates that the prescribed CPD requirements will be requirements that can be satisfied by applicants for re-registration at any time before the application for re-registration or whether the regulations may lawfully require they be satisfied during the currency of the previous registration. It is common ground that no provision of Part 3, other than s 290A, casts any light on that issue. So it is necessary carefully to consider the terms of that section. 32 The critical words of s 290A are: "the applicant has not met the requirements prescribed by the regulations". Mr Beech-Jones submits that, if Parliament had contemplated requirements that must be met during the currency of the previous registration, the more appropriate wording would have been: "the applicant did not meet the requirements prescribed by the regulations". 33 I think there is substance in that contention. The section is directed at the decision to be made by the MARA, in response to an application for registration by a person who was registered at some time within the previous year. The command of the section is to the MARA: "he or she must not be registered". The condition of the operation of the section is that the MARA is satisfied of something; plainly that means satisfied at the time the MARA has to determine its attitude to the application. The matter about which it has to be satisfied is that the applicant "has not met" the prescribed requirements; that is, has not at that time, met those requirements. 34 This understanding of s 290A is supported by the explanation of the section in Second Reading Speeches. Section 290A was introduced into the Migration Act by the Migration Legislation Amendment (Migration Agents) Act 1997. In moving the second reading of the Bill for that Act, the Minister for Immigration and Multicultural Affairs, Mr Ruddock, said: "At present, once an agent is registered, there are no incentives for them to maintain or improve their knowledge and professional competency. Clients, therefore, have no way of knowing whether an agent has made the effort to keep abreast of changes to the Migration Act and regulations. The bill contains provisions designed to improve the competency and ethical practice of all migration agents. From 21 March 1999, all agents seeking to re-register must demonstrate that they have met criteria in relation to undertaking continuing professional development. The details of this requirement will be set out in regulations. Agents who fail to meet this requirement will be refused re-registration and will not be permitted to continue to practise in the industry until they reapply and meet the requirements. I am aware that this is a serious measure. It potentially affects the livelihood of some people in small business. But it is necessary both in the public interest and in the interests of consumers." [Emphasis added.] 35 When the Bill reached the Senate, the Second Reading Speech was delivered by Senator Herron, Minister for Aboriginal and Torres Strait Islander Affairs. He said: "Consumer protection will be enhanced with the introduction of universal competency standards for initial registration. In addition, there will be new professional development standards at the re-registration stage. Agents who fail to meet these new standards will be refused re-registration and will not be eligible to re-apply for a further 12 months." [Emphasis added.] 36 At a later point in his speech, Senator Herron said: "At present, once an agent is registered, there are no incentives for them to maintain or improve their knowledge and professional competency. Clients therefore have no way of knowing whether an agent has made the effort to keep abreast of changes to the Migration Act and Regulations. The bill contains provisions designed to improve the competency and ethical practice of all migration agents. From 21 March 1999, all agents seeking to re-register must demonstrate that they have met criteria in relation to undertaking continuing professional development. The detail of these criteria will be set out in the Regulations. The requirement to meet professional development criteria will have to be met by agents every twelve months when they seek re-registration. Agents who fail to meet this requirement will be refused re-registration and will not be permitted to continue to practice in the industry until they re-apply and meet the requirements." [Emphasis added] 37 The words I have emphasised must have been intended to refer to the provision that became s 290A. There was no other provision (existing or proposed) that required migration agents to meet CPD requirements. Yet, on the construction of item 1 of Schedule 1 to the Regulations advanced by counsel for the MARA, and which I adopt, what the Ministers envisaged is exactly what item 1 does not permit agents to do; it is not open to agents who fail to meet the requirements – that is, who have failed to accumulate ten CPD points during the year – to "re-apply and meet the requirements". They must wait 12 months before re-applying (s 291) and are then evaluated in the same way as a first-time applicant; that is, pursuant only to s 290 and free of any CPD requirement. 38 In their Second Reading Speeches, both Ministers acknowledged that the requirement imposed by s 290A was "a serious measure" that potentially affected the livelihood of some people. They made no apology for that fact, contending that the provision was necessary in the public interest and in the interests of consumers. That attitude is understandable, but the seriousness of the measure is relevant in assessing whether this is a case in which it may be said, in the words used in Shanahan v Scott, that item 1 is merely "subsidiary means of carrying into effect what is enacted in the statute itself" and "is incidental to the execution of its specific provisions" (in which event it is valid) or whether it "attempts to widen the purposes of the Act, to add new and different means of carrying them out" or "to depart from or vary the plan which the legislature has adopted" (in which case it is not, subject to one matter). I think item 1 imposes a requirement – that the CPD activities be completed during the course of the previous year of registration – that is not present in s 290A. As this case shows, the difference may be important to the result of a particular application. And the result of an application has a critical impact on an applicant's entitlement to carry on business as a migration agent. It may have a significant effect on an applicant's income. 39 The reservation about invalidity made in the preceding paragraph arises out of s 46(1)(b) of the Acts Interpretation Act. That paragraph reads: "(1) Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then: (a) … (b) any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power." 40 It seems to me that s 46(1)(b) applies to this case. It requires me to read item 1 of Schedule 1 to the Regulations so as not to exceed the power conferred on the Governor-General in respect of CPD requirements. Plainly, the Governor-General could have made a regulation requiring that applicants for re-registration as migration agents complete, prior to the application for re-registration, courses worth not less than ten points, at least six of which are in core subjects. That being so, s 46(1)(b) requires me to read the item in this way. Accordingly, I apply that meaning to item 1, not because that is its natural or intended meaning, but because s 46(1)(b) so requires. Disposition 41 Amongst the orders sought by the applicant in the Application filed to institute the proceeding, was order (ii) in these terms: "The decision of the Tribunal be set aside and in lieu thereof it be ordered that: (a) The Respondent's decision of 28 November 2000 be set aside; (b) The Respondent be ordered to enter the Appellant's name into the register of migration agents maintained pursuant to section 287 of the Act with effect from 28 November 2000." 42 It would be appropriate to make an order in those terms only if I were satisfied that the applicant was entitled, as a matter of law, to have the MARA's decision set aside and to have his name entered in the register of migration agents. If I was not so satisfied, the proper course would be to remit the matter to the Administrative Appeals Tribunal for further hearing and a determination according to law. 43 At the conclusion of submissions, I raised with counsel the appropriateness of making an order in the form of order (ii), if I ruled for the applicant in respect of either of the points argued. Counsel for the MARA agreed there was no other issue in the case and, in that eventuality, it would be appropriate to make order (ii). I will do so. 44 I also asked counsel about costs. Neither counsel contested the proposition that costs should follow the event, at least if the applicant were successful. Accordingly, I will order that the MARA pay the applicant's costs of the proceeding. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 11 April 2001 Counsel for the Applicant: R Beech-Jones Solicitors for the Applicant: Goldsmiths Lawyers Counsel for the Respondent: G T Johnson Solicitors for the Respondent: Sparke Helmore Date of Hearing: 30 March 2001