Electrical Licensing Committee v Whatalec Pty Ltd; Electrical Licensing Committee v Brindley

In this matter, the respondents brought judicial review applications in respect of decisions made by the Electrical Licensing Committee. The Committee applied for dismissal of the applications pursuant to s 13 Judicial Review Act 1991 (“JR Act”). Whether the Court was required to dismiss the judicial review applications turned on the scope of the right to review by the Queensland Civil and Administrative Tribunal conferred by s 172 Electrical Safety Act 2002 (“ESA”) in respect of a “disciplinary decision” as defined in s 167 of the ESA. The Chief Justice held that the right to review under s 172 extended to a decision under s 121(1)(a) of the ESA as to whether grounds existed to take disciplinary action, and was not limited to decisions under s 121(1)(b) as to whether disciplinary action should be taken, with the consequence that the applications had to be dismissed under s 13 of the JR Act.

Holmes CJ

25 June 2021

Section 121(1) Electrical Safety Act 2002 (“ESA”) provides that:

“121 Decision about taking disciplinary action

(1) As soon as practicable after completing the disciplinary hearing, the licensing committee—

(a) must decide whether the ground exists for taking disciplinary action against the person; and

(b) if the committee decides that the ground exists for taking disciplinary action against the person—must decide whether disciplinary action is to be taken, and if so, the details of the disciplinary action; and

(c) must give the person a written notice informing the person of what the committee has decided.” [4].

Section 172 of the ESA permits a person whose interests are affected by a “disciplinary decision” to seek review of it by the Queensland Civil and Administrative Tribunal (“QCAT”), with a “disciplinary decision” defined in s 167 of the ESA as follows:

“disciplinary decision means a decision of the licensing committee about—

(a) whether to take disciplinary action against the holder of an electrical licence; or

(b) what disciplinary action to take against the holder of an electrical licence.” [5].

The respondents in each matter applied under the Judicial Review Act 1991 (“JR Act”) for review of the Committee’s decisions pursuant to s 121(1)(a) of the ESA that grounds existed for taking disciplinary action against them and of the Committee’s subsequent decisions pursuant to s 121(1)(b) to take disciplinary action. Both parties considered that the right to apply to QCAT for review under s 172 of the ESA was restricted to a decision made by the Committee under s 121(1)(b) of the ESA. The respondents argued that s 167 of the ESA left the respondents with a right to review by QCAT that was “limited to the sanction imposed, rather than the decision [under s 121(1)(a) of the ESA] which led to its imposition”. [14]. The Committee contended, however, that such a review entailed consideration of whether grounds for taking the disciplinary action existed and the respondents’ “attempt to substitute judicial review for that process should not be countenanced”. [2]. Accordingly, and pursuant to s 13 of the JR Act, the Committee sought dismissal of the judicial review applications. [1]. Section 13 of the JR Act requires dismissal of judicial review applications where there is an alternative right of review and the Court is satisfied that it is in the interests of justice to dismiss the application. [7].

The Chief Justice observed that if the parties’ construction of s 167 of the ESA was correct, then there was no independent right to review of the decision under s 121(1)(a) and so the judicial review applications could not be dismissed under s 13 of the JR Act. [15]. In contrast to the legislation considered in Turner v Valuers’ Registration Committee of Queensland [2001] 2 Qd R 100, which was relied upon by the Committee, the decision under s 121(1)(a) of the ESA “was a free-standing decision which could be a precursor to the s 121(1)(b) decision … but it was not part of it”. [15].

Her Honour did not accept the parties’ construction of s 167 of the ESA. Noting the principle of statutory construction that a court “must strive to give meaning to every word of the provision” ([17]), Holmes CJ considered that the parties’ construction failed to give the preposition “about” in s 167 of the ESA any work to do. [17]. “About” was a word of “wide import” that, in s 167 of the ESA, was “properly read as meaning ‘connected with’”. [19].

The term “disciplinary decision” in s 167 of the ESA, her Honour reasoned, “must extend to more than the decisions” under s 121(1)(b) of the ESA. [19]. The Chief Justice held:

“ … there is an obvious and necessary connection between a decision that a ground exists for disciplinary action and a decision whether to take disciplinary action; the first decision is the essential first step towards the making of the second. That being so, a decision that a ground exists is a decision ‘about’ whether to take disciplinary action, and falls within the definition of ‘disciplinary decision’ in s 167 [of the ESA].” [19].

Consequently, s 172 of the ESA also provided for review by QCAT of decisions made under s 121(1)(a). [20].

In the result, the applications for statutory orders of review were dismissed pursuant to s 13 of the JR Act. [22].

S Walpole of Counsel