Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
Before turning to consider each of the grounds of review, it must be noted that, to a significant extent, the Applicant's written and oral submissions proceeded, or at least appeared to proceed, on the premise that the Court's task involved a reconsideration of the merits of the decision. That premise is not correct. As was said by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. 11 It is not disputed that the factors the Respondent was required to take into account were affected by the proper construction of reg 20.3(3)(a). The issue was whether the Respondent's construction of reg 20.3(3) (see [6] above) was the proper construction. In my view, subject to one exception which did not affect the Applicant adversely, it was the proper construction. 12 The Respondent concluded that reg 20.3(3)(a)(ii) refers to employment in a company or firm in which an employee undertakes patent work for that company or firm and does not extend to include experience in a law firm undertaken on behalf of client companies or firms. Again, subject to one issue which does not affect the outcome of the current application, the Respondent's construction was consistent with the express words of the 1990 Patents Act and the Regulations. 44 The Applicant nevertheless submitted that if that was the object of the legislation and the Regulations, then the regulation is both over and under-inclusive. It is over-inclusive in the Applicant's submission because a person who is employed as a technical assistant for one year but spends the whole year making photocopies will nevertheless qualify for registration even though he or she has gained no experience with patent specifications. It is under-inclusive because a person who has spent a year drafting patent specifications under the supervision of a registered practitioner outside a traditional patent practice or a corporate context (eg at a university legal department) may not qualify for registration. (Whether the Respondent would or should consider a university legal department under those circumstances as a "patent attorney's practice" within the meaning of reg 20.3(3)(a)(i) is an interesting question.) These criticisms, though not without force, do not advance the Applicant's case. Every system of rules-based credentialing, and every bright-line rule generally, suffers from the same flaws: no doubt there are many articled clerks who spend two years in a conference room reviewing documents and never learn to draft a pleading or a contract; and, no doubt, there are many 17 year-olds who are mature enough to vote (and some 19 year-olds who are not). Despite these drawbacks, bright-line rules are preferred over case-by-case decision-making in many instances because it is judged by the rule-making authority where the advantages in administrative efficiency, transparency, and certainty outweigh the disadvantages of over and under-inclusiveness. Ultimately, the Applicant's case boils down to the complaint that the Regulations are unfair and ought to be redrawn. However, the rule the Applicant seeks, whereby an Australian legal practitioner, having provided patent advice for the requisite period, is exempted from having to obtain further work experience in order to become a registered patent attorney, is a matter for government to provide for, not the courts. While the rejection of his application by the Respondent may seem unjust to the Applicant, it must be remembered in considering an application for judicial review that "the court has no jurisdiction simply to cure administrative injustice": Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36. 45 For the foregoing reasons, the Applicant's construction point fails.