Bennett and Building Practitioners Board

Bennett and Building Practitioners Board [2017] AATA 1295 (17 August 2017)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2016/2251
GENERAL DIVISION  )
Re: Brody Bennett
Applicant

And: Building Practitioners Board
Respondent
CORRIGENDUM
TRIBUNAL:    Egon Fice, Senior Member
DATE:            23 August 2017
PLACE:          Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

Each reference to ‘Building and Construction Manager – Medium Rise and Low Rise’ be altered to ‘Domestic Builder Limited – other – BCA 1 and 10’.

[sgd].......................................................
Senior Member
Division:GENERAL DIVISION
File Number(s): 2016/2251
Re:Brody Bennett
APPLICANT

AndBuilding Practitioners Board
RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Date:17 August 2017
Place:Melbourne

The Tribunal set asides the decision under review and in substitution determines that Mr Bennett should be granted registration in Victoria as a Builder and Construction Manager – Medium Rise and Low Rise.
[sgd]........................................................................
Egon Fice, Senior Member
BUILDING PRACTITIONERS - registration of building practitioner in Victoria - class Builder-Medium Rise and Low Rise; Construction Manager-Medium Rise and Low Rise - mutual recognition scheme - refusal to grant registration by Building Practitioners’ Board - applicant registered in Tasmania – eligibility criteria - applicant found to be of good character under s. 170(1)(c) of the Building Act 1993 - decision set aside and substituted
Legislation
Building Act 1993 (Cth) ss 169, 170
Legal Practice Act 2001 (WA)
Mutual Recognition Act 1992 (Cth) ss 17, 18, 20, 23
Mutual Recognition (Western Australia) Act 2001 (WA)
Cases
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Re Tkacz; Ex Parte Tkacz (2006) 206 FLR 171
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
Scheme for the Accreditation of Building Practitioners
Building Practitioners’ Board Good Character Policy (dated 9 September 2015)
REASONS FOR DECISION
Egon Fice, Senior Member
17 August 2017

On 20 October 2015 Mr Brody Bennett lodged an application with the Building Practitioners Board (BPB) seeking registration as a building practitioner pursuant to the Mutual Recognition Act 1992 (the Mutual Recognition Act). According to BPB, Mr Bennett made an application to the Tasmanian Department of Justice for a Builder Low Rise License which was granted on 31 August 2015. Although I had the application before me on the hearing of this matter, I did not have correspondence from the Department of Justice indicating his application had been approved. Despite seeking further documents from the BPB at a telephone directions hearing which I held on 2 June 2017, where I mentioned that there were a number of documents referred to in the statement of reasons which were not produced pursuant to s. 28 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), that document was not produced. Rather than delay this matter any further, I have accepted that Mr Bennett’s application for a Builder Low Rise licence was granted as stated.
On 7 March 2016 the BPB wrote to Mr Bennett regarding his application for registration as a building practitioner in Victoria. The Registrar explained that the details Mr Bennett provided of his experience did not match with the building and occupancy permits issued for the works he claimed supported his experience. It stated that on the material currently available to the BPB, it appeared that Mr Bennett had made a number of false or misleading statements in his resume. The Registrar invited a response from Mr Bennett by 21 March 2016.
I should mention than in its Statement of Reasons the BPB said that the letter of 7 March 2016 advised the applicant that the BPB was not satisfied that he was of good character, inviting him to show cause why his application for registration with the respondent should not be refused. With respect to the author of the Statement of Reasons, that is not what the letter states. Nor is the letter a show cause letter. The letter states:
If it were the case that you had made false or misleading statements in your resume, this may indicate a lack of honesty, integrity and candour in your dealings with the regulators. This in turn may mean the BPB would not be satisfied that you are of good character, with the result that your application for registration would be refused.
The BPB invite you to respond to the issues outlined above. Your response may include any documents, information or comments relevant to these issues.
Frankly, I would have expected far more accurate statements to be made by the BPB. While I do not want to be understood as stating there was a deliberate attempt to mislead the Tribunal, the statement made by the BPB in its Statement of Reasons is plainly misleading. It invites the reader to accept that Mr Bennett had been found not to be of good character and that a decision had already been made to refuse his application for registration subject only to Mr Bennett being able to persuade the BPB otherwise.
According to the BPB, Mr Bennett did not respond to the invitation to respond to the matters outlined in its 7 March 2016 letter.
In a letter dated 1 April 2016 the BPB wrote to Mr Bennett stating that his application under the Mutual Recognition Act 1992 (the Mutual Recognition Act) was refused. The reason given for refusal was that Mr Bennett failed to satisfy the BPB that he was of good character as required by s. 170(1)(c) of the Building Act 1993. The BPB did not provide any reasons for coming to that conclusion, although I had no evidence that Mr Bennett sought full reasons to which he was entitled pursuant to s. 28 of the AAT Act.
It appears the only issue I am required to determine is whether Mr Bennett has made false or misleading statements in his application for registration as a builder in Tasmania. If I should find that he has made false or misleading statements in his Tasmanian application, I should then examine the BPB Good Character Policy which it adopted on 9 September 2015 and which I should consider before determining whether or not Mr Bennett is of good character.
THE MUTUAL RECOGNITION ACT PRINCIPLE
The mutual recognition principle dealing with occupations is located in Part 3 of the Mutual Recognition Act. Entitlement to carry on an occupation in a State other than the one in which original registration was obtained is found in s. 17 which, relevantly, 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.
(2)   However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws:
(a)    apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b)    are not based on the attainment of possession of some qualification or experience relating to fitness to carry on the occupation.
Applying the exceptions set out in s. 17(2) of the Mutual Recognition Act, the BPB of Victoria requires an applicant to meet the registration requirements set out in

ss. 169 and 170 of the Building Act 1993 (Vic) (the Building Act). Relevantly, s. 169 provides:
(2) The application must –
…
(ca) be accompanied by the prescribed information relating to the character of the applicant; and
(cb) be accompanied by an authorisation signed by the applicant for the conduct of the police record check on the applicant; and
…
(3) The Board may ask the applicant to give it any more information than it reasonably requires to determine the application and may refuse the application if the applicant does not comply with the request within a reasonable time.
Section 170 of the Building Act relevantly provides:
(1) The Building Practitioners Board must register an applicant in each category or class applied for if it is satisfied that the applicant –
(a)    has complied with section 169; and
(b)    either –
(i)     holds an appropriate prescribed qualification; or
(ii)    holds a qualification that the Board considers is, either alone or together with any further certificate, authority, experience or examination equivalent to a prescribed qualification; and
(c)is of good character; and
(d)has complied with any other condition prescribed for registration in that category or class.
(2) The Building Practitioners Board may refuse to register an applicant if the requirements of subsection (1) not met.
…
In the context of Mr Bennett’s case, an applicant seeking registration in a second State as a builder is nevertheless required to satisfy the registering authority in the second State (in this case the BPB) that he or she was of good character as required by s. 170(1)(b)(ii) of the Building Act.
The exclusion set out in s. 17(2) of the Mutual Recognition Act was dealt with by the Full Bench of the Supreme Court of Western Australia (Martin CJ, Murray and Templeman JJ) decision in Re Tkacz; Ex Parte Tkacz (2006) 206 FLR 171. That case involved the admission of a legal practitioner to practice in Western Australia by way of recognition of their admission to practice in Supreme Court of New South Wales. Prior to admission in New South Wales, Mr Tkacz fully disclosed a criminal conviction and the Legal Practice Admission Board of New South Wales took that into account but, in any event, allowed his admission.
Mr Tkacz made his application to the Legal Practice Board of Western Australia rather than to the Supreme Court under administrative arrangements between the two bodies. The Legal Practice Board of Western Australia informed Mr Tkacz that it could not provide him with practising certificate on the basis of information provided and invited him to make written submissions and show cause why, in view of his conviction, a certificate should be provided. The Court had no evidence that Mr Tkacz in fact lodged written submissions with the Board but in any event the Board advised Mr Tkacz that it had resolved to hold an enquiry for the purpose of determining whether he was of good fame and character and fit and proper to be admitted.
However, after receiving advice from counsel, the Board concluded it had no power to conduct an enquiry under the Legal Practice Act 2001 (WA) for the purpose of determining whether Mr Tkacz was of good fame and character and fit and proper to be admitted. The board subsequently resolved to rescind its resolution to hold an enquiry and advised Mr Tkacz that the matter would be considered pursuant to the provisions of the mutual recognition legislation. Apparently the Board had also authorised the Chairman to sign a certificate to the effect that Mr Tkacz had observed and complied with the provisions of the Mutual Recognition (Western Australia) Act 2001 (WA). The Board advised the Supreme Court of the circumstances of Mr Tkacz’s application including his previous conviction and arranged for counsel to appear on its behalf as amicus curiae in proceedings connected with Mr Tkacz’s admission. When the motion came on for hearing before the Court, Mr Tkacz was admitted to practice.
The Court noted that the Legal Practice Act 2001 (WA) set out the qualifications required for admission as a legal practitioner, which included demonstrating that the applicant was of good fame and character and a fit and proper person to be admitted. It then reviewed the relevant provisions in the Mutual Recognition Act (Cth), particularly noting that s. 18 of the Mutual Recognition Act extends to an occupation carried on by an individual where the individual is subject to more than one system of registration or more than one local registration authority in a State. It cited the example of a legal practitioner, which involved both admission as a legal practitioner by a Court and the issue of a practising certificate by another body. In Western Australia, the Court is a relevant local registration authority for the purposes of admission to practice and the Board is the authority for purposes of the issue of a practising certificate.
Mr Tkacz had been admitted to practice in New South Wales following full disclosure of his prior conviction. This meant that the Legal Practice Admission Board of New South Wales had determined he was of good character and a fit and proper person to be admitted in New South Wales. Mr Tkacz therefore argued that there was no ground upon which the application for admission could be refused or postponed by the West Australian Supreme Court.
The Board submitted that the specific provisions of the mutual recognition legislation should be read and construed subject to the inherent power of the Court with respect to the supervision of the conduct of legal practitioners. The Board contended that this power extended to an inherent jurisdiction to control the admission and removal of legal practitioners from the Roll of Practitioners. Therefore, it was open to the Court to refuse to admit Mr Tkacz if it was not satisfied that he was a person of good character and fit and proper to be admitted to practice even though such a ground is not specified as a ground upon which registration may be refused under s. 23 of the Mutual Recognition Act 1992 (Cth). Section 23 relevantly provides:
(1) A local registration authority may refuse the grant of registration if:
(a)    any of the statements or information on 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.
The Court considered the issues posed by the competing submissions. It said, at 182 :
However, the fundamental issue posed by the competing submissions to which we have referred is more problematic. On the one hand, the clear and obvious purpose of the mutual recognition legislation is to create a national scheme under which the capacity of an occupational registering authority to delay or refuse the registration in that jurisdiction of a person who is registered in any other jurisdiction is severely curtailed, so that registration in one jurisdiction leads virtually automatically to registration in each other jurisdiction in which it is sought. On the other hand, the inherent jurisdiction of the superior courts to determine who shall be recognised as practitioners of those courts, and to regulate and control their conduct, goes back to antiquity, and has long been accepted to be a fundamental facet of a court’s capacity to administer justice.
The Court reached a resolution by stating, at 182 :
However, a more detailed consideration of the MRA(Cth) and the legislation of this State relating to the admission of legal practitioners, read in the context of the inherent jurisdiction of the Court, reveals that there is no necessary tension between these objectives, and indeed, that the MRA(Cth) is crafted in such a way as to give effect to the mutual recognition principle whilst preserving the capacity of a superior court to itself determine which persons are to be admitted as its practitioners.
The Court then explained as follows, at 186 :
The LPA is a law that regulates the manner of carrying on the occupation of legal practitioner in the State of Western Australia. It recognises the power of the Court to refuse to admit a person to the practice of that occupation even though he or she may have all the specified qualifications or experience necessary to fit them to carry on that occupation. It is a law which applies equally to all persons carrying on or seeking to carry on the occupation of legal practitioner in Western Australia. Accordingly, the clear and express effect of s 17(2) of the MRA(Cth) is to provide that the mutual recognition principle does not affect the operation of that aspect of the LPA.
The Court found support for the view expressed above in s. 20 of the Mutual Recognition Act which deals with entitlement to registration and continued registration. Relevantly, s. 20 provides:
(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 sufficient ground of entitlement to registration.
(2)The local registration authority may grant registration on that ground and may grant renewals of such registration.
(3)Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State.
(4)Continuance of registration is otherwise subject to the laws of the second State, to the extent which those laws:
(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
…
The Court explained that s. 20 of the Mutual Recognition Act should be read and construed consistently with the purpose and effect of s. 17(2) (at 187). Therefore, where s. 20(1) provides that registration in the first State is sufficient ground of entitlement to registration, that should be understood as a reference to a sufficiency of the qualifications or experience necessary to secure registration.
Furthermore, it is clear that s. 20(1) was not intended to compel registration in the second State given that s. 20(2) expressly uses the word may rather than the word shall. Additionally, s. 20(4) makes it clear that continuance of registration is subject to the laws of the second State where those laws apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State and are not based on the attainment or possession of some qualifications or experience relating to fitness to carry on the occupation. The Court concluded, at 187 :
So, the language of s 17(2) of the MRA(Cth) is replicated in s 20(4) of that Act, relating to continuance of registration. The long-standing capacity of the superior courts to determine that only the persons with the requisite personal qualities of character be admitted to, or remain on, the Roll would not easily fit within the description of “some qualification or experience”. Accordingly, that capacity of the superior courts, including the Supreme Court of Western Australia, remains unaffected by the mutual recognition legislation.
Although the Court in Re Tkacz relied on its inherent jurisdiction to apply the character test regardless of the fact that the relevant registration authority in the first State found that test had been met, in Mr Bennett’s case, there is express provision in the Victorian Building Act which requires an applicant to be of good character.
Accordingly, I accept that the requirement to establish good character in accordance with s. 170(1)(c) of the Building Act applies to Mr Bennett. Even if Mr Bennett satisfied the qualification and experience requirements for the registration which he sought in Victoria, the BPB was entitled to seek information which would confirm that he met the good character requirements for a grant of registration. The good character requirement found in the Building Act cannot properly be described as a qualification or experience relating to fitness to carry on the occupation. It applies equally to all persons seeking to carry on the occupation of a domestic builder. It falls within the exception described by s. 17(2) of the Mutual Recognition Act.
MR BENNETT’S TASMANIAN APPLICATION

Section 19 of the Mutual Recognition Act provides that a person who is registered in a State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation. The written notice itself requires a number of matters to be disclosed and those are set out in s. 19(2). The remainder of s. 19 provides:
(3) The notice must be accompanied by a document that is either the original or a copy of the instrument evidencing the person’s existing registration (or, if there is no such instrument, by sufficient information to identify the person and the person’s registration).
(4) As regards the instrument evidencing the person’s existing registration, the person must certify in the notice that the accompanying document is the original or a complete and accurate copy of the original.
(5) The statements and other information in the notice must be verified by statutory declaration.
(6) The local registration authority may permit the notice to be amended after it is lodged.
Given that the hearing before this Tribunal is a hearing de novo, I would have expected to have been provided either with the original or a copy of the instrument evidencing Mr Bennett’s existing registration. I did not have such a document before me. I should not have to remind the BPB of its obligations under s. 37 of the AAT Act to provide to the Tribunal all of the material upon which its findings were made and any other documents which may be relevant to review by this Tribunal.
The essence of the statement made by the BPB regarding why Mr Bennett’s application under the Mutual Recognition Act was refused appears to be because the statements he made on his Tasmanian application regarding his building experience were false and misleading. It appears that the BPB was also dissatisfied with the references provided in support of Mr Bennett’s Tasmanian application and the fact that Mr Bennett did not respond to what the BPB described as the show cause notice, which is in fact the letter dated 7 March 2016 outlining the problems it identified with each of the projects

Mr Bennett referred to for the purpose of establishing the relevant experience level required. Mr Bennett relied on 15 projects but only six of those projects, described as Sea Spray Avenue, Cape Woolamai; 3/7 Grandview Road, Cowes; 4/7 Grandview Road, Cowes; 253 Sanctuary Drive, Cowes; 59 McHaffie Drive, Cowes; and Toyota Manufacturing Plant appear to have been subjected to close scrutiny.
A Stage 3 Review, presumably conducted by the BPB in April 2016, refers to Mr Bennett’s work history/experience being supplied in a separate document listing 15 sites. It outlines their addresses, start and finish dates of the work, a description of the work, Mr Bennett’s roles and responsibilities and the registered builder details. These documents were not provided in the section 37 documents (as they should have been) and were only later provided following my request. In addition, in the s. 28 statement made by BPB, particularly in relation to each of the six projects which were the subject of scrutiny, reference was made to the date on which the building permit was issued and when the certificate of occupancy was issued. Initially, I did not have any documents in evidence supporting those statements. Following my request, I received documents dealing with Permit details under the Permit Levy System provided by the Building Commission. I have relied on those documents for the purposes of writing these reasons and coming to a decision. Although Mr Bennett, in his Tasmanian application, referred to some 15 worksites for the purposes of establishing his work experience, for unexplained reasons, the BPB only referred to 6 of those, describing them as projects. I shall first refer to those and then examine briefly other construction jobs cited by Mr Bennett.
Project 1 – Seaspray Avenue, Cape Woolamai
In his statement of experience, Mr Bennett said he worked on this property, which he described as a single story, four-bedroom timber framed house, between March 2014 and September 2014. He described himself as being the Leading Hand responsible for setting out and completing all aspects of the carpentry work. He also set out in detail the scope of those works. The registered builder is described as Mr Gary Cox from G. J Gardiner Homes.
In its s. 28 Statement, the BPB raised concern because it said that the building permit on that property was issued in May 2014, two months after Mr Bennett said his experience on that project commenced and the certificate of occupancy was issued in December 2014, approximately three months after the claimed experience finished.
The Permit Details indicate that the permit was issued on 6 May 2014 and the occupancy/final inspection date was 2 December 2014.
Mr Bennett provided copies of some of his 2014 diary entries, having made it clear that that was the only diary that he had retained. He also provided some copies of invoices which referred to the work done on the Seaspray Avenue property. The first of those invoices is dated 12 May 2014. The final invoice provided by Mr Bennett regarding this property appears to be 22 September 2014 although there is a further invoice dated 23 February 2015 which Mr Bennett has indicated relates to the Seaspray property. While it is clear that the dates Mr Bennett claimed he worked on that property do not accord precisely with the Permit Details, that does not lead to the conclusion that work was not conducted as claimed by Mr Bennett. For example, just because the building permit was issued on 6 May 2014 does not preclude work having started before that permit was granted. The only way that can be determined is by obtaining evidence from Mr Cox. Furthermore, I noted that in the same period, Mr Bennett worked on a property situated at Seagrove Way, Cowes. Given the similarity in names, there appears to be ample room for confusion.
In fact Mr Cox provided two statements, one dated 12 July 2016 and the second 9 August 2016. His first statement refers to another property, which is situated at 31 Seagrove Way, Cowes, Victoria. I will deal with that presently. In the second statement, Mr Cox set out the addresses of 17 properties which he said Mr Bennett had worked on since 2014. Amongst those properties is listed 11 Seaspray Avenue, Cape Woolamai where Mr Cox said Mr Bennett worked between 6 May 2014 and 2 December 2014. Those dates correspond precisely with the dates for issuing a building permit and occupancy/final inspection dates recorded on the Permit Details form from the Building Commission.
Project 2 & 3 – 3/7 and 4/7 Grandview Road, Cowes (units)
In his application for Tasmanian registration Mr Bennett said that he worked on this project between February 2014 and June 2014. He described it as double storey, three bedroom, timber framed axon cladding home. Mr Bennett said he was responsible for the lock-up and the fix (which I understood to mean rectification work) on this house. He explained the scope of works he conducted. The registered builder in this case was Mr Shane Neil from Blue Mist Constructions. Mr Neil was the second referee on Mr Bennett’s Tasmanian application. Mr Neil said the following in the reference attached to Mr Bennett’s Tasmanian application:
I have known Brody for five years. During this time Brody and myself [sic] have worked on various projects together, namely 59 McHaffie Drive and 3/7 & 4/7 Grandview Road, Cowes.
Brody has always proven to be a very honest, loyal and diligent person both in his professional and personal dealings. He has always displayed the necessary knowledge of the building construction industry to satisfactory [sic] complete all tasks for which he has been responsible for.
I would have no hesitation in recommending Brody [sic] application to become a registered building practitioner as in the past I have found him to be honest, diligent, loyal, hardworking and completed his work to the highest level. He is a highly skilled project manager, who possesses both leadership and organizational skills.
The Permit Details provided to me by the BPB lists the address as 7 Grandview Grove Cowes. The permit was issued on 27 March 2014, the application having been made on 25 November 2013. The occupancy/final inspection date was 25 November 2014. Mr Bennett produced three invoices in relation to this property, dated 7 June 2014, 14 June 2014 and 9 July 2014.
Mr Neil provided a letter to the BPB dated 17 July 2016 in which he stated:
This is to verify that Brody Bennett was subcontracted to this company for new builds located at,
a. 3 & 4 & Grandview Road Cowes, Vic
Brody performed the Lock-up and fix for these builds between May and October 2014.
…
Brody has worked with us on a number of builds over the years, including this year. He is not responsible for applying for permits or the Certificate of Occupancy, so notwithstanding the dates he indicated on his application we would not have approved demolition or construction work prior to permits being issued. He has undertaken multiple projects & often concurrently we can understand some confusion with the dates originally provided.
Project 5 – 59 McHaffie Drive, Cowes (his statement of experience attached to his Tasmanian application lists McHaffie Drive after Sanctuary Drive- but no project number assigned)
Mr Bennett said that he worked on this property between January 2013 and July 2013. He described his position as a carpenter/leading hand responsible for the lock-up, fix and completion of the house. He set out in detail the scope of works.
The Permit Details provided by the Building Commission disclose the builder as Mr Neil from Blue Mist Constructions (mis-described on the form as Blemist). It discloses that the permit was issued on 6 March 2013 but the occupancy/final inspection date is not recorded. In his letter dated 17 July 2016 (A4) Mr Neil said:
59 McHaffie Drive, Cowes, Vic
Brody was the leading hand/carpet the responsible for the lock-up, fix and completion of this house between March and September 2014.
When it was put to Mr Bennett in cross examination that the dates he stated he worked on this property were different to those described by Mr Neil, Mr Bennett said that Mr Neil was correct. He accepted that he had made an error about those dates. In his referee report, when asked to list the roles in which he knew the applicant had worked, Mr Neil said:
Carpenter responsible for the lock-up, fix and completion of McHaffie Drive, Cowes.
When asked about the working arrangements he had with Mr Bennett, Mr Neil said:
I have known Brody for 5 years. On the McHaffie Drive job we worked together about 3 – 4 days a week for five months.
Mr Neil added:
I have no hesitation in recommending Brody to become a registered builder. He is competent in all aspects of the trade and is approachable and professional. Highly recommended.
Project 4 – 253 Sanctuary Drive, Cowes
This construction was described as a two story, 5 bedroom, timber framed house. Mr Bennett said he worked on that build between May 2013 and November 2013. His role was as the Carpenter responsible for the lock-up, fix and completion of the house. He set out in detail the scope of works for which he was responsible. The builder responsible for that house was Mr Vern Carr from Hotondo Homes.
The Permit Details from the Building Commission indicate that the building permit on this property issued on 16 April 2014 and the occupancy/final inspection date was 18 June 2015. I had no further evidence regarding the work Mr Bennett claims he completed on this property. It would appear, from the Permit Details, that Mr Bennett has either referred to the wrong property or has the wrong dates. I did not have any evidence from Mr Vern Carr.
Project 6 – Toyota Manufacturing Plant
Mr Bennett described this build as the internal fit out and alucabond clad two offices. He said the work was conducted between October 2011 and January 2012. Mr Bennett described his role as being responsible for the entire scope of those works which were detailed in his application form. The builder in that case was Mr Courtney Campbell from CWC Constructions Pty Ltd.
Mr Campbell provided to Mr Bennett the First Referee’s Statement for the purposes of his Tasmanian application. In answer to the question regarding the details of the work arrangements he had with Mr Bennett, which he described as being part-time, Mr Campbell said:
Over the past 7 years Brody will work for me anywhere from 1 week to 3 months at a time. On average 4 months a year.
Mr Campbell described the roles Mr Bennett worked in as: Supervising; Project managing; Estimating and ordering materials; and All carpentry. He described the classes of buildings Mr Bennett had undertaken work on in a building capacity as: Construction Manager – Open; and Builder Medium Rise and Low Rise. Mr Campbell also described the following work undertaken and competency disclosed:
·     Re-stumping and moveing [sic] re-locatable buildings.
·     Single and double story frames, lock-ups and fix.
·     Organising carpenters to work under Brody
Brody has a high level of organising trades and getting materials into some of our busiest jobsites and seems to always find a solution to a problem.
Brody has been a qualified carpenter for 9 ½ years. Brody has worked on about 25 to 30 of my jobs and I only employ him for approximately 25% of his time.
Brody is able to manage all aspects of the construction process. He is approachable and professional. I would highly recommend Brody as a domestic builder.
As I have explained above, the BPB referred only to those properties described as the

6 Projects. In fact, in his attachment to the Tasmanian registration application, Mr Bennett referred also to the following properties: 31 Seagrove Way, Cowes; 4 Echidna Grove, Cowes; Meldrum Court, Cowes; 30 Corona Avenue, Cape Woolamai; Lot 415 Mitre Court, Cowes; Lot 40 Elvington Avenue, Cowes; 286 Panorama Avenue, Sunset Strip; 4 Bruce Avenue, Surf Beach; and Lot 170 Happy Valley Drive, Sunset Strip.
I also had in evidence a list of properties on which Mr Bennett worked for Mr Keith Donohue of Coldon Homes and Mr Gary Cox of G. J. Gardiner. Homes. Mr Donohue listed a further 10 properties on which Mr Bennett worked between 31 March 2014 and 1 April 2016. Mr Donohue was not called to give evidence. Mr Cox listed an additional eight properties which he said Mr Bennett worked on for him in addition to those which I have already listed above. Those works were conducted between July 2014 and May 2016. Mr Cox was not called to give evidence.
In the bundle of documents provided after the hearing, which included some diary notes and handwritten invoices, those properties to which I have referred above are all mentioned in those documents. They support what was said by Mr Bennett and the referees as well as the other builders I have named above. There was no evidence to the contrary.
Mr Bennett also provided a curriculum vitae (CV) setting out his work history, education and references. Prior to the work he referred to in his Tasmanian licence application, Mr Bennett disclosed the following work history:
2001 – 2004, G & G Ryan Constructions, Apprentice Carpenter
2005 – 2006, G & G Brian Constructions, worked as a subcontracting Carpenter
2007 – 2008, Keystone Design & Build as Subcontracting Carpenter
2009 CWC Constructions as Subcontracting Carpenter
2010 – 2012, Todd Divine Homes as Subcontracting Carpenter
2013, Todd Divine Homes, CWC Constructions as Subcontracting Carpenter
2014-2016, Coldon Homes, Gj Garnder Homes, Fairhaven, Hotondo, Blue Mist Constructions, F & M Mackay Constructions, CWC Constructions all as Subcontracting Carpenter
Mr Bennett noted that in addition to what he stated in his work history, there were a number of small jobs which he had done throughout the years but which he had not listed. He said:
Details of work undertaken: In my 15 years working in the building industry I have completed an enormous variety of jobs. During my apprenticeship I learnt the trade completing many renovations on older style homes. This grounding gave me a wide scope of knowledge of materials, safety requirements and the building industry in general, as no two jobs are the same. I then began to branch out and started to subcontracting from the builders.
At Keystone Design and Build I was required to work on large brand-new double story homes. This was great experience for me as I continued to gain confidence and knowledge when reading detailed & difficult plans all while executing and producing work to a high standard.
…
I now currently employ two apprentice carpenters and continue subcontracting my services to various builders. I am employed to execute many aspects of the carpentry trade namely, Decks, Pergola’s, Base stage, Frame stage, Lock up stage, fixed stage and completion stage of new homes.
Mr Bennett also described the following educational achievements:
1997 – 2001 Koo Wee Rup Secondary College – Completed Year 10
2001 – 2004 Carpentry Apprenticeship
Awarded in 2004 Certificate III in General Construction BCG30798
Chisholm Institute – AQF level 3
2014 Completed Certificate IV in Building and Construction (Building) CPC 40110
Builders Academy Australia AQF level 4
I also had in evidence a letter from Mr Todd Divine of Todd Divine Homes, dated 22 September 2016. He described Mr Bennett as an extremely reliable, honest and hard-working carpenter who worked full-time for his building company, Todd Divine Homes (Retirement Lifestyle Villages) between February 2011 and December 2013. Mr Divine said Mr Bennett worked on specific stages and was personally responsible for undertaking jobs ranging from minor carpentry through to complete house construction. Mr Divine described Mr Bennett’s skills in the following way:
Brody is a great carpenter/builder and always executed his work to a very high standard and takes pride in his profession. He employed an apprentice for the first year and then took on a second apprentice for the following two years.
Phillip Island and surrounds as a fast developing but compact market where to survive you need to be a good tradesperson, great manager/communicator and careful business operator. I have continued to observe Brody’s building skills and ability to manage a busy work environment while still maintaining professionalism and physically completing jobs to satisfaction of his clients.
I have no hesitation recommending Brody for his registration as a domestic builder in Victoria as he has a proven work history with our company.
CLAIMED INADEQUATE EXPERIENCE LEVEL
One of the concerns expressed by the BPB was that Mr Bennett lacked the requisite two years’ experience required for a builder licence in respect of Medium Rise and Low Rise constructions. As is set out at the commencement of each Referee’s Statement, the Scheme for the Accreditation of Building Practitioners outlines the experience and competence requirements for various classes of builder. For a Builder – Medium Rise and Low Rise as well as Construction Manager – Medium Rise and Low Rise, the experience and competence is stated to be:
Two years in the scope of work for those applicants with a building trade qualification (carpentry, bricklaying etc.)
Mr P Matthews, who appeared on behalf the BPB, put to Mr Bennett in cross examination that he did not have two years’ work experience in the relevant types of construction but rather 16 months because of the errors noted in his stated work experience dates. While Mr Bennett accepted that he had made an error, much of the experience that Mr Bennett has had and which is relevant to his application appears to have either been discarded by the BPB or not put into evidence until this hearing was held. In fact, if I were to take into account Mr Bennett’s experience with Todd Divine Homes between 2010 and 2013, and various others including CWC Constructions, it should be clear that Mr Bennett does satisfy the two-year requirement.

Even if I am wrong about that, it is important to bear in mind that this Tribunal, on hearing a matter, is not limited to the evidence which was before the primary decision maker. That much is clear from what the High Court of Australia said in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 where Hayne and Heydon JJ said, at 315:
Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary-decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.
There is no provision in the Mutual Recognition Act of which I am aware which would limit my enquiry to the evidence which was before the primary decision-maker. Some of the references before me, dated as recently as August 2016, indicate Mr Bennett continues in the work which he was previously undertaking. I had no evidence before me on the hearing of this matter or since that he has ceased that work. Therefore, I find that Mr Bennett does satisfy the two-year requirement in the scope of work and there is no question that he holds an appropriate building trade qualification, that being carpentry.
GOOD CHARACTER
In its s. 28 statement, the BPB stated that it assessed Mr Bennett’s character in accordance with its Good Character Policy which it adopted 9 September 2015. That document describes the concept of good character in the following way:
1. The concept of “character” is broad. It can encompass a person’s private and personal attributes or qualities. It can also encompass a person’s reputation in the sense of the relative estimation or esteem in which a person is held in the public realm. The public and private aspects of “character” mean that it is a concept that can have both objective and subjective elements.
2. The BPB has a statutory responsibility to register or reinstate only those applicants that it can be satisfied are of good character. In order to properly exercise a statutory responsibility, the BPB must reach a reasoned and objective view of the impact of the applicant’s character history on their good character as an applicant for registration or reinstatement. The BPB will consider aspects of the applicant’s character history relevant to the duties and responsibilities of the applicant will be required to observe.
The BPB’s Good Character Policy document sets out a number of characteristics which it considers apply in the case of an applicant for registration as a builder. Relevant in Mr Bennett’s case are the following:
(a)    demonstrating honesty and fairness in financial and professional dealings on behalf of oneself, clients;
…
(d)    Demonstrating respect for and compliance with the law including all applicable state, local, and federal laws, regulations, statutes, technical and professional codes and standards;
…
(g)    Dealing forthrightly, honestly and with candour with registration and regulatory authority;
…
While the Tribunal is not bound to apply a policy designed to guide decision-making, the existence and content of a lawful government policy guiding the exercise of statutory power is a matter which the Tribunal is bound to take into account and to give such weight as it thinks proper. In the Federal Court of Australia (Neaves, French and Drummond JJ) decision in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, French and Drummond JJ said, at 205 – 206:
It is right to say that the Tribunal, which operates as part of a continuum of administrative decision-making, is not bound by governmental policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review:
“If the original decision maker has properly paid regard to some general government policy and reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”
Drake v Minister for Immigration and Ethnic Affairs (1979) 406 FLR 409 at 420.
The place of government policy in the Tribunal’s decision-making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other. But its decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy: Drake (supra) at 421. This is nothing more than a statement of what is sometimes called the non-fettering principle which applies generally to statutory tribunals and decision-makers:…
The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored. It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, and acceptance of the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application.… But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal.
Plainly, the Tribunal is not bound by government policy. Nevertheless, particularly where the policy relates to a discretionary power which may be exercised by the Tribunal, it is in the interests of consistent decision-making that it be taken into account.
It appears that the BPB’s principal concern with Mr Bennett’s application was that he had misstated the dates on which he had worked on projects he claimed satisfied the experience requirements for the licence Builder-Medium Rise and Low Rise. While that undoubtedly did occur, Mr Bennett at the hearing of this matter freely admitted that he probably got the dates confused. In fact, he suggested that because he had many jobs going at any one time, that might explain why he had confused the dates. The brief examination I was able to make of his 2014 diary as well as some of the invoices supports what Mr Bennett said. In fact, when I examined all of the documents in evidence, it is plain that Mr Bennett has been an extremely busy builder since about 2010. Mr Bennett was also frank about the fact that he employed subcontractors at times and did not necessarily do all of the work himself. He said he did a big percentage of that work but not all. Taking into account all the circumstances in this case, I find that Mr Bennett did not attempt to mislead or deceive the BPB by reason of inaccuracies in the dates on which he claimed he had completed qualifying work.
The BPB also appeared to be concerned because Mr Bennett did not respond to what it claimed was a show cause letter. As I have already stated above, the letter of 7 March 2016 is not a letter informing Mr Bennett that his registration application was refused unless he were able to substantiate his work experience claims. That letter simply pointed out that Mr Bennett apparently made a number of false or misleading statements (described as his resume) on his application form, the discrepancies being identified by the dates on which building permits were issued and when certificates of occupancy issued. In order to clarify the position, it invited Mr Bennett to respond. The fact that Mr Bennett did not respond does not indicate anything about his character. It is he who suffers the detriment because, clearly, his application would be refused if he were not able to clarify queries raised by the BPB.
The final concern articulated by the BPB was that Mr Bennett obtained registration as a licensed builder in Tasmania even though he had never worked as a builder in Tasmania. In cross examination Mr Bennett agreed he had no projects on foot in Tasmania and that nothing was planned, although he was looking at work in Queensland. In his evidence-in-chief Mr Bennett explained that he made his application in Tasmania because he had been told it was quicker. This issue, amongst others, was raised in what BPB described as a Stage 3 Review, dated 9 February 2016. Under the heading Concerns/Conclusions, it was stated that Mr Bennett had not established an interstate history. He provided the BPB with a Victorian address and drivers’ licence; his references were from persons based in Victoria; and the work history only listed the work he had completed in Victoria. As to his character, the reviewer stated:
There are some small discrepancies between permits and the work history that was supplied with the application. Applicant has only provided details of work completed in Victoria.
Regardless of the above concerns, the reviewer concluded:
Concerns were raised as the applicant does not establish interstate presence and appears to have only lived and worked in Victoria. Due to the jobs listed above, the accuracy of the permits, the applicant’s qualifications (Certificate IV in Building and Construction) I am unable to see reason for this application to be refused.
It is clear from the evidence, and Mr Bennett readily admitted, that he had not been involved in the building industry in Tasmania but nevertheless choose to make his application there in the belief that having established his qualifications in Tasmania and being granted registration as a licensed builder in that State, it should be a simple and rather quick matter to have that qualification recognised under the Mutual Recognition Act in Victoria. I suspect Mr Bennett now regrets that decision. Nevertheless, what he has done in an attempt to obtain registration in Victoria via the Mutual Recognition Act is not unlawful nor is it in any way improper. There is nothing in that Act which requires an applicant to have worked in the State where the first licence was granted in order to be eligible under the Act to be licensed/registered in the second State. It is, of course, a different matter if the first licence or registration was obtained fraudulently or by misrepresentation of material facts. That is not the position in Mr Bennett’s case.
The final point I should make regarding character is that Mr Bennett provided a significant number of references attesting not only to his character but also to his skills as a builder. I have already referred to references provided by very significant builders in the industry, all of whom have spoken highly of Mr Bennett as a builder and as an honest and trustworthy person. In addition, I also had in evidence a number of references from individuals who have used Mr Bennett in the construction of their homes. They all speak very highly of his skills as a builder and as a trustworthy tradesman with exceptional organisational skills. There was also a statement from a former apprentice who performed his apprenticeship with Mr Bennett over a period of three years.
On the evidence before me on the hearing of this matter, I find that Mr Bennett is a person of good character.
CONCLUSION
I have found that Mr Bennett satisfies the eligibility criteria for the grant of the licence Builder-Medium Rise and Low Rise and Construction Manager-Medium Rise and Low Rise. I have also found that Mr Bennett satisfies the good character requirement in
s. 170(1)(c) of the Building Act.
Accordingly, I find that the decision made by the BPB 1 April 2016 to refuse to grant to Mr Bennett registration under the Mutual Recognition Act in the Class Builder-Medium Rise and Low Rise; and Construction Manager-Medium Rise and Low Rise was not the preferable decision. I set aside that decision and in substitution determine that Mr Bennett should be granted registration in Victoria as a Builder and Construction Manager – Medium Rise and Low Rise.

71. I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the written reasons herein of Egon Fice, Senior Member

[sgd]….........................................
Associate
Dated 17 August 2017

Dates of hearing 27 February 2017

Advocate for the Applicant

Counsel for the Respondent

Mr C Brewer, Builder Registration Pty Ltd

Mr P Matthews

Advocate for the Respondent

Mr M Chiller, Building Practitioners Board

[2017] AATA 1295

23 August 2017

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