Fischer v The Governing Board of JAS-ANZ [2016] NZHC 378 (8 March 2016)

Last Updated: 12 April 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-463-63 [2016] NZHC 378

BETWEEN	GEOFFREY WAYNE FISCHER First Applicant
AND	MICHAEL JOHN FISCHER Second Applicant
AND	THE GOVERNING BOARD OF JAS-ANZ Respondent

Hearing:	3 March 2016
Counsel:	G W Fischer in Person R Brown and K Wevers for Respondent
Judgment:	8 March 2016

_{JUDGMENT OF SIMON FRANCE J}

Introduction

[1] In 1991 the governments of New Zealand and Australia agreed to establish the Council of the Joint Accreditation System of Australia and New Zealand (JAS-ANZ). The purpose was to achieve consistency in the area of quality assessment. The first purpose was to:

[F]acilitate the harmonisation of conformity assessment structures, including quality management systems certification, product certification, laboratory accreditation and personnel certification in Australia and New Zealand.

[2] Pursuant to this, JAS-ANZ accredits organisations (conformity assessment bodies) who in turn assess and decide whether particular individuals or systems

_{conform to industry standards and schemes.}

FISCHER v GOVERNING BOARD OF JAS-ANZ [2016] NZHC 378 [8 March 2016]

[3] The applicant, Mr Geoffrey Fischer, is a person interested in the area known as Non-Destructive Testing. He has at times held licences in the use of ionizing radiation, and certificates in the disciplines of magnetic particle inspection, liquid penetrant inspection and ultrasonic thickness management. The other applicant, Mr Michael Fischer, is the director of a company that provides these services.

[4] The relevant industry standard is currently ISO 9712:2012, although strictly speaking the 2005 version is the relevant document for these proceedings (the Standard). The Standard is called “Non-destructive testing – Qualification and certification of NDT personnel”. There is a conformity assessment body authorised by JAS-ANZ to monitor and certificate in regards to this Standard – it is called the Certification Board for Inspection Personnel (CBIP). CBIP’s authorisation from JAS-ANZ essentially means JAS-ANZ is satisfied that the processes CBIP has in place meet the requirements of ISO 9712:2005.

[5] The applicants disagree. They say that CBIP is misinterpreting the Standard, and consequently its certification requirements are not compliant. Mr George Fischer made a complaint to JAZ-ANZ about this. JAZ-ANZ looked into it, did not agree and concluded that no further action was required. It is this decision the applicants seek to challenge.

Reviewability

[6] The respondent concedes the decision, although not made under a statutory power of decision, is sufficiently public in nature to engage the Court’s common law jurisdiction to review exercises of public power.¹ The Board is appointed by Ministers of State from New Zealand and Australia to carry out a regulatory type role. It is accepted the applicant’s complaint concerned whether a conformity assessment body’s scheme complied with the Standard, and so has public

_{consequences. I accept this characterisation and proceed to determine the matter.}

¹ The respondents cite a passage from Keith J in Royal Australia College of Surgeons v Phipps [1999] 3 NZLR 1 at 11–12 (CA). See also Wilson v White [2004] NZCA 191; [2005] 1 NZLR 189, and the discussion in Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [JAIntro01–07].

The issue

[7] At issue is the interpretation of provisions in ISO 9712:2005 concerning the period for which certificates may be issued, and how many renewals there may be before a recertification exercise is required. The wording of the current 2012

Standard is sufficiently similar to its predecessor on which CBIP’s scheme is based

to make the issue not moot.

[8] The CBIP model is to require annual renewals, and recertification every ten years. The applicants contend that ISO 9712:2005 allows only one renewal. It is accepted recertification need only occur every ten years, but if that is the aim, the basic period of the certificate must be five years, thereby allowing one renewal through to ten year recertification. If the period of certification is one year, there can be one renewal and accordingly recertification must be after two years.

Discussion

[9] The relevant provisions provide:

ISO 9712:2005(E)

10.3 Validity

10.3.1 The period of validity shall not exceed five years from the date of certification indicated on the certificate and/or wallet card.

10.3.2 Certification shall be invalid

a) at the option of the certification body after reviewing evidence of unethical behaviour,

b) if the individual fails to meet the visual acuity requirements of 7.2.1 a),

c) if a significant interruption takes place in the individual’s work within the scope of the certificate until such time as the individual meets requirements for recertification, or

d) if the individual fails recertification, until such time as the individual meets the requirements for recertification or initial certification.

10.4 Renewal

10.4.1 Prior to the completion of the first period of validity, certification may be renewed by the certification body for a new period of similar duration, provided the certificate holder supplies documentary evidence of

a) satisfactorily fulfilling, during the preceding 12 months, the vision requirements of 7.2.1 a), and

b) continued satisfactory work activity, relevant to the certification, without significant interruption.

10.4.2 If the criterion 10.4.1 b) for renewal is not met, the individual shall follow the same rules as for recertification (see 10.5).

10.5 Recertification

10.5.1 General

Prior to completion of each second period of validity, or at least every ten years, the certified individual may be recertified by the certification body for a similar period, provided the individual meets the criterion 10.4.1 a) for renewal and meets the following conditions, as applicable.

The plain reading

[10] On its face the Standard appears to provide a relatively clear structure, which is as the applicant contends. It all fits together:

(a) the period of validity (ie the basic term) can be for any period up to five years;

(b) renewal must be before the “first period of validity” ends. It can be

for a similar period;

(c) prior to the end of the second period of validity, a certificate holder may obtain a further certificate for a similar period, but in addition to the renewal requirements, the candidate must meet further conditions (recertification conditions).

[11] On this reading emphasis is given to the fact that the recertification obligation is fixed by reference to renewal. The “or at least every ten years” found in 10.5.1 is, on this reading, superfluous. Since the maximum term of validity is five years, if

there can be only one renewal recertification must necessarily occur at least every ten years. The presence of a superfluous clause such as “or at least every ten years” can be easily enough explained as being an avoidance of doubt inclusion.

An alternative reading

[12] The alternative reading, which underlies CBIP’s model, is to give separate life to “or at least every ten years”. The proposition is that regardless of the period of validity of the certificate, recertification need only occur every ten years. This approach reflects the proposition that the key policy concern is just to ensure that recertification is done at least every ten years. On its face that would seem quite a likely period. There would not be too many occupations or trades where retesting of core skills is required every year or two years.

[13] This policy concern can be given effect to by divorcing renewal and recertification. If the recertification provision is just read on its own, it does not mangle the language to read “or at least ten years” as an alternative period. That is, do it before the second period of renewal or at least every ten years as you choose. The merit in this approach from an interpretation viewpoint is that it gives “or at least every ten years” a purpose. The criticism is that it treats 10.5.1 as a standalone provision when in reality it seems to be part of a sequenced structure. It is an odd drafting approach to carefully talk about first and second periods of validity if in reality ten years is the key regardless of the length of the period of validity.

What do the drafters say?

[14] ISO Standards are one set of standards available for adoption by industry. There are alternative standard producing bodies, and many countries have their own standards bodies. Sometimes these national bodies will promulgate the ISO standard as a domestic one, either as is or in a modified form. Standards Australia, for example, uses ISO 9712 but publishes it unchanged as AS3998.

[15] ISO Standards are developed by a panel of experts within a technical committee. Their aim is to provide a common platform for the exchange of goods and services between countries. One of the most prominent is ISO 9001 which is the Quality Management System Standard. The process for creating a Standard is that a draft is prepared by a technical committee, then circulated to ISO’s members for comment and feedback and ultimately voted on by members.

[16] The Chair of JAS-ANZ advises that his organisation maintains contact with many standard-setting bodies. In response to Mr Fischer’s complaint, the Chief Executive emailed the ISO agency to ascertain if assistance could be obtained with the correct interpretation. It is convenient first to summarise what happened and then to turn to the specific content of the responses.

[17] The initial request was met with a response that ISO cannot assist with that type of request. Next, however, a response was in fact received from the Chair of the relevant sub-committee. The Chair set out her understanding of the provision which favoured giving pre-eminence to the ten year recertification period, and downplaying the rest. JAS-ANZ replied by asking for confirmation that the CBIP model complied. The answer was yes.

[18] Based on this, JAS-ANZ advised Mr Fischer of the Chair’s opinion and that consequently it considered his complaint needed no further action. Mr Fischer replied querying the standing of the Chair of the ISO Committee to give this opinion. This led JAS-ANZ to ask ISO if there was any formal process it could use. In response, it seems the initial JAS-ANZ request was submitted to all committee members by way of ballot. The subsequent answer appears to disagree with the Chair and to favour Mr Fischer’s viewpoint, although the respondent queries that interpretation. The end result is that there is a clear response one way from the Chair of the ISO Committee, and arguably a different answer from the Committee as a whole. As will be seen the Chair provides reasons for her view, the Committee does not.

If a CB decide to establish an annual validity period of 12 months, my reading of ISO 9712:2005, Clauses 10.3, 10.4 and 10.5 would suggest that recertification should be every two years, not every ten years.

Clause 10.3.1 allows a body to establish a period of validity not exceeding five years from the date of certification. The CB [certification body] has chosen one year.

Clause 10.4.1 allows a body to renew an individual’s certification prior to the completion of the first period of validity. In this case it would be before the end of one year.

Clause 10.5.1 allows certification bodies to re-certify individuals prior to completion of each second period of validity providing the individual meets the criterion 10.4.1 a).

[20] The Chair of the Committee replied:

The ISO/TC135/SC7 committee did hold a meeting last week for which I did bring up the issue of the difficulty in interpreting ISO 9712:2012 standard with regards to your enquiry. We will be keeping your concern on file for consideration during the next revision of ISO 9712.

With regards to your enquiry, your reading and understanding is correct but there is some flexibility for the recertification interval. The intent of the standard is to ensure that recertification is conducted no later than 10 years following the commencement of a certificate.

A certification scheme can certainly be established as you have indicated (validity one year, renewal before end of year and thus every two years) but you are exceeding the recertification requirement of the standard. ISO 9712:2005 10.5.1 allows certification bodies to re-certify individuals prior to completion of each second period of validity providing the individual meets the criterion 10.4.1 a)... but it also says “or at least every ten years”. Therefore there is some flexibility in determining your recertification interval as long as it does not exceed ten years from the initial certification.

The intent within ISO 9712:2012 is the same ... recertification must be completed no later than 10 years following initial certification, anything less than the 10 years is still within the requirement of the standard.

[21] JAS-ANZ then asked:

If a scheme was structured in the following way, would this meet the intent of the standard:

validity period 12 months,

renewal at the end of 12 months, and recertification every 10 years

Yes as long as the recertification date does not exceed 10 years from the date of initial certificate date.

Example

Validity starts (Certified): October 14, 2014 Renewal completed: October 14, 2015 (and every year after)

Recertification completed by (maximum): October 14, 2024

Just for my own information, may I also ask Steve why you may want to move to an annual renewal period. Just looking to understanding for future consideration of next versions of the standard.

[23] Finally it is necessary to set out the reply from the organisation itself following its internal ballot process:

In response to your enquiry detailed below:

“I have the following enquiry in relation to ISO 9712:

If a CB decide to establish an annual validity period of 12 months, my reading of ISO 9712:2005, Clauses 10.3, 10.4 and 10.5 would suggest that recertification should be every two years, not every ten years.

Clause 10.3.1 allows a body to establish a period of validity not exceeding five years from the date of certification. The CB has chosen one year.

Clause 10.4.1 allows a body to renew an individual’s certification prior to the completion of the first period of validity. In this case it would be before the end of one year.

Clause 10.5.1 allows certification bodies to re-clarify individuals prior to completion of each second period of validity providing the individual meets the criterion 10.4.1 a).

...

Following a Committee Internal Ballot (CIB) with ISO/TC135/SC7 – Personnel Qualification, it was agreed by consensus that your understanding is correct and “meets” the requirements of ISO 9712:2012.

Taking into account your request for clarification, ISO/TC135/SC7 will be considering revisions and improvements to the current wording within the standard.

[24] The view of the Chair is clear, and comes with an explanation as to what the rationale is. It may be argued the view of the Committee is equally clear, but for the last observation that the scheme outlined (which is one year validity two year recertification) “meets” the requirements. As the respondent observes, this comment

somewhat leaves open the proposition that the Committee had not turned its mind to the key issue of whether an alternative scheme of annual renewals and ten year recertification would also meet the requirements.

[25] Telling against this uncertainty is the way JAS-ANZ initially posed the question:

would suggest that recertification should be every two years, not every ten years

and the way ISO replied, namely “your understanding is correct”. If the answer stopped there it would be unequivocal but the addition of “meets the requirements” leaves scope for debate.

Conclusion on meaning

[26] I have not found this easy because I suspect it is a case where an ambiguously worded, or arguably inadequately worded, document pushes one to a particular obvious reading whereas the alternative is really intended.

[27] The applicants’ interpretation makes sense only if there is good reason to be limited to one renewal. The applicants’ interpretation implies an underlying policy that one should pick the desirable period of recertification, and then work backwards from that to make the renewal period half that. On this approach the length of the initial certification period is being driven solely by the capacity to have only one renewal, and not by any intrinsic merit in the particular period. There is no evidence suggesting a sound policy reason for that. And if there is no magic in the length of the period, there seems no good reason to allow only one renewal.

[28] The respondent submits I should give considerable weight, if not defer, to the views of the ISO. In this area I am not particularly troubled by that proposition per se, especially when phrased as “considerable weight”. The problem is in identifying what the ISO view is.

[29] In the end I consider it is preferable to state some propositions for the assistance of JAS-ANZ. I will then explain why a substantive conclusion on the interpretation is not required. The propositions are:

(a) the applicants’ interpretation is the obvious reading;

(b) it is probable, but not certain, that the ISO Committee response agrees

with the applicants’ position that only one renewal is possible;

(c) the alternative view is not the obvious reading but is an available reading. It requires “or at least every ten years” to be seen as a stand-alone recertification option divorced from the validity period. It is a reading that does considerable damage to the apparent structure, but on the evidence before me seems more sensible and consistent with policy. That, however, is a matter wholly within JAS-ANZ’s expertise;

(d) the disadvantage of the applicants’ interpretation is that a model such as CBIP which seems to allow for increased monitoring without requiring full recertification is prevented for no apparent good reason;

(e) I do not consider there is any material difference in the 2012 wording.

[30] It is not necessary to go beyond this and give a definitive answer. It is enough to identify the alternative interpretation as the less likely interpretation but an available one. The Standard is not incorporated in New Zealand by any statute or regulation. Concerning its application JAS-ANZ is a specialist body with experience, and familiarity across the entire range of standard-setting documents. What is appropriate implementation of the Standard is a matter best left to JAS-ANZ.

Other issues

[31] The applicant queried the process followed by JAS-ANZ, contending that it was inappropriate to rely only on the Chair of the ISO sub-committee and that other

bodies should have been consulted. I do not agree, both on the particular level and the general. On the particular, it is an ISO Standard in dispute and the inquiry was directed towards that agency. That is an obvious place to go and why more is needed, as Mr Fischer submits, is unclear. On the more general level, a large measure of discretion must reside with a body such as JAS-ANZ in relation to the sources on which it relies to reach its decision. What can be said is that Mr Fischer was given every opportunity to put forward his view and any supporting material.

Relief

[32] For reasons already stated I am declining any formal relief. However, even if I had been firmer in favour of the applicants’ interpretation as being correct, I would not have made any order as regards the complaint decision. I am advised that CBIP’s accreditation is currently being considered as part of the normal four yearly cycle. There is accordingly opportunity for JAS-ANZ to respond to the contents of this judgment. Further, neither of the applicants themselves presently hold certificates, let alone one due for renewal or recertification. The complaint is therefore general in nature and not directed at their specific situation. There is nothing that directly requires relief, and the judgment answers the core question to the extent needed.

Costs

[33] Despite relief being declined, I indicate my preliminary view is that costs should lie where they fall. However, the respondents may file a memorandum if

_{they seek a different outcome, and the applicant can of course respond.}

Simon France J