Barnes and Victorian Building Authority - [2019] AATA 4796

Barnes and Victorian Building Authority [2019] AATA 4796 (31 October 2019)
Division:GENERAL DIVISION
File Number: 2018/0825
Re:Gabriel Barnes
APPLICANT

AndVictorian Building Authority
RESPONDENT

DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:31 October 2019
Place:Melbourne

The Tribunal affirms the decision dated 18 January 2018.

. ..........[sgd].............................................................
Mr A. Maryniak QC, Member
Catchwords
MUTUAL RECOGNITION – application Mutual Recognition Act 1992 – registered building surveyor in Tasmania – refusal of registration as building surveyor in Victoria – application of mutual recognition principles - whether activities substantially the same – decision under review affirmed.
Legislation
Building Act 1993 (Vic)
Building Act 2016 (Tas)
Building Interim Regulations 2017 (Vic)
Mutual Recognition Act 1992 (Cth)
Cases
Andriotis v Victorian Building Authority [2018] FCAFC 24
Medical Board of Queensland v Renton [2006] FCA 947
Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123
Turner and Registrar Supreme Court Queensland [2003] AATA 887
REASONS FOR DECISION
Mr A. Maryniak QC, Member
31 October 2019

The Applicant is a registered building surveyor (unlimited) pursuant to the

Building Act 2016
(Tas) (the Tasmanian Building Act).
On 2 October 2017 the Applicant submitted notice pursuant to section 19 of the

Mutual Recognition Act 1992
(MR Act) to the Respondent seeking Victorian registration as a building surveyor (unlimited).
On 18 January 2018 the Respondent refused the Applicant’s application for registration as a building surveyor in Victoria on the basis that his occupation as a building surveyor in Tasmania was not equivalent to the Victorian occupation and therefore could not be mutually recognised under the MR Act.
The Applicant has applied to the Tribunal for a review of that refusal decision.
Issue
The agreed issue for determination is:
Are the activities that a registered building surveyor (unlimited) in Tasmania (pursuant to the Tasmanian Building Act) is authorised to carry out substantially the same as, and therefore equivalent to, a building surveyor (unlimited) registered in Victoria, pursuant to the Building Act 1993 (Vic) (the Victorian Building Act)?
Law
The principal purpose of the MR Act is to promote the goal of freedom of movement of goods and service providers in a national market in Australia. Part 3 is concerned 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. Pursuant to s 39(1) of the MR Act it is the duty of each state registration authority to facilitate the operation of this part and in particular to make use of the power to impose conditions in such a way as to promote the mutual recognition principle.
Section 29(1) of the MR Act relevantly states:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 4796
Decision Date: 31 October 2019

CaseChat Overview and Summary

This matter concerned an application by Mr. Barnes, a registered building surveyor in Tasmania, for registration as a building surveyor in Victoria under the *Mutual Recognition Act 1992* (Cth). The Victorian Building Authority refused his application, leading to the dispute heard by Mr. A. Maryniak QC, Member. The core of the dispute revolved around whether Mr. Barnes's activities as a building surveyor in Tasmania were substantially the same as those required for registration in Victoria.

The legal issues before the Tribunal were whether the activities undertaken by a registered building surveyor in Tasmania, particularly concerning the approval of building work, were substantially the same as those undertaken by a building surveyor in Victoria for the purposes of the *Mutual Recognition Act 1992*. This required an examination of the regulatory frameworks governing building approvals in both states, specifically the distinction between "High Risk/Permit Work" and "Medium Risk/Notifiable Work" in Tasmania, and the absence of such risk categorisation in Victoria.

The Tribunal reasoned that while the *Mutual Recognition Act 1992* aims to remove artificial barriers to interstate trade, the activities in question were not substantially the same. In Tasmania, building surveyors can approve "Medium Risk/Notifiable Work," which excludes a substantial range of new buildings. "High Risk/Permit Work" in Tasmania requires a building permit issued by a Permit Authority, a role that involves more than administrative functions and is distinct from the activities of a building surveyor. In contrast, Victorian building surveyors can assess and approve all building work, as no risk categories exist, and all work is subject to a building permit unless exempted. The Tribunal concluded that these differences were substantive and significant, meaning the activities were not substantially the same.

The Tribunal affirmed the decision of the Victorian Building Authority to refuse Mr. Barnes's registration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In respect of Certificates of Completion, section 313(2) of the Tasmanian Building Act provides that a Certificate of Completion is prima facie evidence of the High Risk/Permit Work complying with the relevant performance requirements of the NCC:313. Evidence of compliant building workUnless evidence is provided to the contrary, building work is taken to comply with this Act if it complies with the relevant performance requirements of the National Construction Code.Unless evidence is provided to the contrary, building work is taken to comply with the relevant performance requirements of the National Construction Code if –(a) in relation to permit building work –(i)a building permit is issued in respect of the building work; and(ii)a certificate of completion is issued in respect of the building work; and(b) in relation to notifiable building work, a certificate of completion is issued in respect of the building work. Further, it is unlawful to perform High Risk/Permit Work in Tasmania unless there is a valid building permit in force (as stipulated by section 138(1) of the Tasmanian Building Act) and the failure of the Permit Authority to determine an application for a building permit within a specified period does not authorise an applicant to commence the proposed High Risk/Permit Work (section 141(6) of the Tasmanian Building Act). Consideration The Tribunal notes that building surveyors in Tasmania can approve Medium Risk/Notifiable Work. However, Medium Risk/Notifiable Work is different from High Risk/Permit Work. Medium Risk/Notifiable Work, for example, does not involve construction of a substantial range of new buildings including office buildings, apartment buildings, shops, cafes, restaurants, milk bars, barber’s shops, public laundry, carpark buildings, warehouses, hospitals, schools, aged care buildings (Director’s Determination, at 46). This is so by virtue of their exclusion from the definition of Medium Risk/Notifiable Work in Tasmania. In Victoria, building surveyors can assess and approve all building work as no risk categories exist. This means that they approve projects that would otherwise fall within the High Risk/Permit Work category in Tasmania. The Victorian Building Act and Victorian Building Regulations legislate that all building work is subject to the issuing of a building permit, unless an exemption exits for the proposed work under the Victorian Building Regulations. The Applicant did not suggest any conditions to assist the achievement of equivalence, presumably because he was of the view that the activities in both jurisdictions were, contrary to the findings of this Tribunal, substantially the same and thus conditions were not required to achieve equivalence. The Tribunal is conscious of the fact that the objectives of the MR Act are to remove artificial barriers to interstate trade and movement of good and labour: Andriotis [2018] FCAFC 24 at [14]. However, whilst noting the evidence of Mr Dale Webster, Executive Director, Consumer Building and Occupational Services that the role of the Tasmanian Permit Authority was largely administrative, on balance, the Tribunal concludes its role is not simply that of a ‘rubber stamp’. The Permit Authority has work to do in the process in Tasmania as outlined in the Respondent’s submissions discussed above, such work not being within the activities carried out by Tasmanian building surveyors.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Further, it is unlawful to perform High Risk/Permit Work in Tasmania unless there is a valid building permit in force (as stipulated by section 138(1) of the Tasmanian Building Act) and the failure of the Permit Authority to determine an application for a building permit within a specified period does not authorise an applicant to commence the proposed High Risk/Permit Work (section 141(6) of the Tasmanian Building Act). Consideration The Tribunal notes that building surveyors in Tasmania can approve Medium Risk/Notifiable Work. However, Medium Risk/Notifiable Work is different from High Risk/Permit Work. Medium Risk/Notifiable Work, for example, does not involve construction of a substantial range of new buildings including office buildings, apartment buildings, shops, cafes, restaurants, milk bars, barber’s shops, public laundry, carpark buildings, warehouses, hospitals, schools, aged care buildings (Director’s Determination, at 46). This is so by virtue of their exclusion from the definition of Medium Risk/Notifiable Work in Tasmania. In Victoria, building surveyors can assess and approve all building work as no risk categories exist. This means that they approve projects that would otherwise fall within the High Risk/Permit Work category in Tasmania. The Victorian Building Act and Victorian Building Regulations legislate that all building work is subject to the issuing of a building permit, unless an exemption exits for the proposed work under the Victorian Building Regulations. The Applicant did not suggest any conditions to assist the achievement of equivalence, presumably because he was of the view that the activities in both jurisdictions were, contrary to the findings of this Tribunal, substantially the same and thus conditions were not required to achieve equivalence. The Tribunal is conscious of the fact that the objectives of the MR Act are to remove artificial barriers to interstate trade and movement of good and labour: Andriotis [2018] FCAFC 24 at [14]. However, whilst noting the evidence of Mr Dale Webster, Executive Director, Consumer Building and Occupational Services that the role of the Tasmanian Permit Authority was largely administrative, on balance, the Tribunal concludes its role is not simply that of a ‘rubber stamp’. The Permit Authority has work to do in the process in Tasmania as outlined in the Respondent’s submissions discussed above, such work not being within the activities carried out by Tasmanian building surveyors. The Tribunal finds, upon considering all of the submissions of the parties and the relevant statutory provisions, the activities relating to building approvals and the granting of building permits are substantially distinct as between Tasmania and Victoria, and cannot be regarded as substantially the same. The differences are substantive and of such significance that even if the Tribunal were to accept the Applicant’s characterisation of evaluating ‘the sum total of the activities authorised to be carried out are substantially the same’, which it does not, the Tribunal could not be satisfied that the sum total of the activities were substantially the same.