Anderson and Victorian Building Authority

Anderson and Victorian Building Authority [2021] AATA 761 (6 April 2021)
Division:GENERAL DIVISION
File Number: 2019/1978
Re:Paul Jamie Anderson
APPLICANT

Victorian Building AuthorityAnd
RESPONDENT

DECISION
Tribunal:Senior Member R Pintos-Lopez
Date:6 April 2021
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
Senior Member R Pintos-Lopez
Catchwords
MUTUAL RECOGNITION – mutual recognition of occupations between States – Applicant holds a Tradesperson’s Licence (Water supply, Sanitary and Drainage Plumbing) in Western Australia – Applicant applied for registration as a plumbing practitioner in Victoria – Respondent refused to register the Applicant in the classes of gasfitting and irrigation (non-agricultural) work – Ministerial Declaration – the equivalence of occupations – equivalence cannot be achieved by conditions – decision under review affirmed
Legislation
Building Act 1993 (Vic)
Mutual Recognition Act 1992 (Cth)
Plumbing Regulations 2018 (Vic)
Cases
Shi v Migration Agents Registration Authority [2008] HCA 31
Secondary Materials
Mutual Recognition Act Ministerial Declaration (9 February 2007)
REASONS FOR DECISION
Senior Member R Pintos-Lopez
6 April 2021

The Applicant seeks review of a decision made by the Respondent, the Victorian Building Authority, dated 14 March 2019, that the Applicant’s interstate licence, being a Tradesperson’s Licence (Water supply, Sanitary and Drainage Plumbing) issued by the Plumbers Licensing Board of Western Australia, was not an equivalent occupation to the Victorian registration of registered plumbing practitioner in the classes of “Gasfitting work” and “Irrigation (non-agricultural) work” and that the imposition of conditions could not achieve equivalence.
For the reasons that follow, the decision under review is affirmed.
BACKGROUND AND RELEVANT FACTS
On 5 February 2019, the Applicant applied to the Respondent via the mutual recognition scheme for registration as a plumbing practitioner in the following classes of plumbing work:
(a)drainage work;
(b)gasfitting work;
(c)irrigation (non-agricultural) work;
(d)sanitary work; and
(e)water supply work.
Attached to the Applicant’s application were various supporting documents including documents that showed that:
(a)the Applicant holds a certification, dated 23 September 2012, in relation to completion of “Plumbing Australian Context Training” at Swinburne University of Technology.
(b)On 17 December 2013, VETASSESS provided the Applicant with an assessment for migration purposes entitled and “Offshore Technical Skills Record” in relation to the occupation “Plumber (General)” that stated that the Applicant had been assessed as competent in the units in the Australian Qualifications Framework qualification Certificate III in Plumbing and assessed as suitable for migration purposes. The document notes that the skills assessment is undertaken for the purposes of migration and does not guarantee the likely success of obtaining licensing registration or employment.
(c)On that same date, VETASSESS issued a document certifying that the Applicant had been assessed as competent in the units of competency for “Plumber (General)”.
On 8 February 2019, a licensing registration search of the Department of Mines, Industry Regulation and Safety of Western Australia, showed licence details for the Applicant for the licence type Tradesperson Plumber in the classes of water supply, sanitary and drainage plumbing. An email dated 11 February 2019, from the Western Australian Department to the Respondent indicates that the Applicant was first issued with his of accreditation on 14 April 2016, pursuant to an apprenticeship scheme.
On 12 February 2019, the Department of Mines, Industry Regulation and Safety of Western Australia told the Respondent that irrigation work in Western Australia is deemed as non-regulated work unless the irrigation system is to be connected to a potable water supply, wherein an isolation valve and backflow prevention device is to be installed by a licensed plumbing contractor.
On 14 March 2019, the Respondent partially granted the Applicant’s registration Victoria in the classes of plumbing work: “Water Supply”, “Drainage work” and “Sanitary work”, and refused to register the Applicant as a registered plumbing practitioner in the classes of “Gasfitting work” and “Irrigation (non-agricultural) work” in Victoria.
On 10 April 2019, the Applicant applied for review of the Respondent’s decision of 14 March 2019.
RELEVANT PROVISIONS
Mutual Recognition Act 1992 (Cth)
Section 16 of Part 3 (Occupations) of the Mutual Recognition Act 1992 (Cth) (the Act) provides:
(1) The mutual recognition principle as applying to occupations is as set out in this Part.
(2) This Part deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.
(3) In this Part, the first-mentioned State is called the first State, and the other State is called the second State.
Section 17 of the Act specifies that principle and provides:
(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a)to be registered in the second State for the equivalent occupation; and
(b)pending such registration, to carry on the equivalent occupation in the second State.
Section 19(1) of the Act requires notice to be provided by the person seeking registration and provides:
A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.
Section 20 of the Act concerns consequences of a successful application and provides in part:
(1) A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.
(2) The local registration authority may grant registration on that ground and may grant renewals of such registration.
Section 23(1) of the Act provides power to the Respondent to refuse a grant of registration and provides:
A local registration authority may refuse the grant of registration if:
(a)any of the statements or information in the notice as required by section 19 are materially false or misleading; or
(b)any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or
(c)the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
(Emphasis added.)
In relation to what is an “equivalent occupation”, s 29 of the Act provides:
(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
(2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States.
(3) This section has effect subject to any relevant declarations in force under this Division.
Section 32(1) of the Act provides that a Minister from each of two or more States may jointly declare that specified occupations are equivalent and may specify or describe conditions that will achieve equivalence. Section 32(4) imposes an obligation on the local registration authority with respect to any declaration, which is that the “appropriate local registration authority is to give effect to the declaration”.
Mutual Recognition Act Ministerial Declaration
On 9 February 2007, the States and Territories executed a ministerial declaration pursuant to s 32 of the Act (the Ministerial Declaration).
The Ministerial Declaration contains schedules in respect of various occupations. Schedule 6 concerns registrations for plumbing occupations. Item 20 of that schedule concerns a Western Australian tradesperson’s license equivalence in Victoria and provides:
Registration – Plumbing (Draining) work
AND
Registration – Plumbing (Sanitary) work
AND
Registration – Plumbing (Water Supply) work
Building Act 1993 (Vic)
Part 12A of the Building Act 1993 (Vic) (the Building Act) is entitled “Plumbing work”. Section 221A of the Building Act provides that the purpose of Part 12A is to regulate plumbing work with the aim of ensuring that it is carried out safely and competently.
Division 3 of Part 12A of the Building Act concerns the licensing and registration of plumbers. Section 221M concerns licensing to carry out a particular class of plumbing work. Section 221O provides the Respondent capacity to register a person to carry out a particular class of plumbing work. Section 221X provides the Respondent with a discretion to impose conditions on licensing or registration of a person.
Section 221B of the Building Act contains definitions including in relation to a “class of plumbing work” which it provides means “a class of plumbing work specified by the regulations.”
Plumbing Regulations 2018 (Vic)
Regulation 12(1) of the Plumbing Regulations 2018 (Vic) (the Regulations) provides that for the purposes of s 221C(1) of the Building Act, the following work (other than work referred to in subregulation (2)) is plumbing work:
(a)backflow prevention work;
(b)drainage work;
(c)fire protection work;
(d)gasfitting work;
(e)irrigation (non-agricultural) work;
(f)mechanical services work;
(g)refrigerated air-conditioning work;
(h)roofing (stormwater) work;
(i)sanitary work;
(j)thermostatic mixing valve work;
(k)Type A appliance conversion work;
(l)Type A appliance servicing work;
(m)Type B gasfitting work;
(n)Type B gasfitting advanced work;
(o)water supply work.
Part 4 of the Regulations defines various classes of plumbing work including “gasfitting work” at r 19:
(1) Gasfitting work is the construction, installation, replacement, repair, alteration, maintenance, testing or commissioning of any pipe, appliance, flue, fitting, apparatus, control or other item that is involved with the supply or use of gas and that is fitted downstream of the gas supply point and includes—
(a)any gas appliance in, or on, a caravan or a vessel; and
(b)any roof sheeting and roof flashing that is necessary for the purpose of any work described in this subregulation; and
(c)any design work that is incidental to, or associated with, any work described in this subregulation.
(2) Gasfitting work does not include—
(a)any specialised gasfitting work; or
(b)any Type B gasfitting work; or
(c)any cleaning, painting or preparation work in relation to gas pipes or gas pipe joints that does not involve the connection, disconnection or alteration of those pipes or joints; or
(d)the connection or disconnection of a gas storage container for the purpose of filling or refilling, exchanging, storing or disposing of the container; or
(e)any work in relation to an item that is involved with the supply or use of gas that relates to the propulsion system, or any system that is powered by the propulsion system, of any motor vehicle or vessel.
Regulation 20 of the Regulations defines “irrigation (non-agricultural work)”:
(1) Irrigation (non-agricultural) work is—
(a)the construction, installation, replacement, repair, alteration, maintenance, relining, testing or commissioning of any part of an irrigation system from the connection point to the last valve controlling any pressurised zone in the system; and
(b)any design work that is incidental to, or associated with, any work described in paragraph (a).
(2) Irrigation (non-agricultural) work does not include the construction, installation, replacement, repair, alteration, maintenance, relining, testing or commissioning of an irrigation system used for the purposes of agriculture.
ISSUE
The issue to be determined in this application is whether a Tradesperson (Water Supply, Sanitary and Drainage Plumbing) recognised by the relevant Western Australian licensing board is equivalent to that of a registered plumbing practitioner in Victoria in the classes of “Gasfitting work” and “Irrigation (non-agricultural) work” and, if not, whether equivalence can be achieved by the imposition of conditions.
CONSIDERATION
The Respondent submits that the Applicant has the onus to satisfy the Tribunal of the existence of a statutory right meaning that the relevant categories of registration are equivalent by reference to s 29(1) of the Act.[1] The Respondent refers to various decisions of the Tribunal in support. I consider that no question as to onus arises. The role of the Tribunal, and the absence of any onus provision such as exists in relation to reviews of certain taxation decisions, is as expressed in the Respondent’s written submissions in Shi v Migration Agents Registration Authority [2008] HCA 31 at [147] by Kiefel J (Crennan J agreeing), and that is to determine what is the correct or preferable decision by conducting the Tribunal’s own, independent, assessment and determination of the same question that the original decision–maker was required to address.
[1] Paragraphs 15 to 20 of the Respondent's Statement of Facts, Issues and Contentions, dated 1 October 2019.
The Respondent relies upon s 23(1)(a) of the Act, which provides that a local registration authority may refuse the grant of registration if any of the statements or information in the notice as required by s 19 are materially false or misleading. The Respondent submits that in answer to the question of whether the Applicant had been convicted of any offence involving fraud, dishonesty, drug-trafficking or violence that was punishable by imprisonment of six months or more, that the information in the Applicant’s s 19 notice was materially false or misleading. The Respondent submits that a National Police History Check showed that the Applicant was found guilty of the offences “assault a female – offender a male” and damage to property, both of which the Applicant failed to declare. Once the principal question of whether the Applicant holds an equivalent occupation from Western Australia as set out in ss 23(1) and 29 of the Act is resolved, the question of the Applicant’s statements or information in his notice to the Respondent becomes unnecessary to determine. On the basis of my decision to reject equivalence, it is unnecessary for me to decide this question.
On 14 March 2019, the Respondent determined the Applicant’s application for mutual recognition registration on the basis of the relevant item of the Ministerial Declaration. Section 32(4) of the Act imposes a requirement upon the local registration authority to give effect to the Ministerial Declaration.
The Ministerial Declaration is clearly intended to assist the relevant local registration authority to determine equivalency of classes of occupations, but it also imposes an obligation on those authorities. Both Western Australia and Victoria are signatories to the Ministerial Declaration and what is contained in the schedules to the Declaration is a combined assessment of the equivalency of those classes as compared between jurisdictions. The Respondent is obliged to give effect to that assessment not only by reference to the classes expressly contained therein, but also by reason that certain classes are not included in the schedule or that certain conditions to achieve equivalence are not expressed. An applicant’s individual circumstances could also be relevant to a determination.
Regulation 12(1) of the Regulations specifies that “plumbing work” in Victoria under the Building Act includes drainage work, sanitary work and water supply work: r 12(1)(b), (i) and (o). Such work is recognised under the Ministerial Declaration. However, the definition of “plumbing work” in Victoria includes other work within the definition that is not included under the Ministerial Declaration, relevantly gasfitting work, irrigation (non-agricultural) work, Type B gasfitting work and gasfitting advanced work: r 12(1)(d), (e), (m) and (n).
The Regulations further define “gasfitting work” and “irrigation (non-agricultural work)” under r 19 and 20. Gasfitting work concerns work that is involved with the supply or use of gas and that is fitted downstream of the gas supply point. It is significant that the Ministerial Declaration makes no mention of this work in relation to the equivalency in Victoria of a Western Australian registration. Similarly, r 20 of the Regulations makes plain that “irrigation (non-agricultural) work” concerns irrigation systems, but not irrigation for the purposes of agriculture. The Applicant’s Western Australian licence is restricted to the supply of “potable water” rather than for the purposes of irrigation.
The Victorian plumbing registration is not equivalent to the Applicant’s Western Australian licence in the classes of “gasfitting work” and “irrigation (non-agricultural) work”. Section 32(4) of the Act imposed an obligation on the Respondent to give effect to the Declaration when deciding the Applicant’s application. The absence of the classes of “gasfitting work” and “irrigation (non-agricultural) work” as equivalent in the Ministerial Declaration, in the circumstances of the definitions for those classes of work under the Regulations, and in the context of s 32(4), means that the decision to deny mutual recognition of those classes of work was correct.
I accept and find that the imposition of conditions on the classes of registration “irrigation (non-agricultural) work” or “gasfitting work” in terms of restricting the classes to activities that the Applicant is authorised to carry out under his Western Australian licence would be unreasonable, as it would make the classes of registration in Victoria something other than the current work.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Pintos-Lopez

[sgd]........................................................................
Associate
Dated: 6 April 2021

Date of hearing: 26 June 2020

The Applicant: Self-represented

Advocate for the Respondent: Miriam Fletcher

[2021] AATA 761

6 April 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Standing

Remedies

Appeal

Date of hearing:	26 June 2020
The Applicant:	Self-represented
Advocate for the Respondent:	Miriam Fletcher