Cau and Victorian Building Authority
[2020] AATA 4851
•2 December 2020
Cau and Victorian Building Authority [2020] AATA 4851 (2 December 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1284
Re:Massimo Cau
APPLICANT
Victorian Building AuthorityAnd
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:2 December 2020
Place:Perth
The Reviewable Decision of the Respondent dated 5 March 2020 is affirmed.
..................[sgd]......................................................
L M Gallagher, Member
CATCHWORDS
MUTUAL RECOGNITION – application of Mutual Recognition Act 1992 (Cth) – registration of building surveyor – application of mutual recognition principles – substantial equivalence of occupations – Applicant a registered building surveyor in Western Australia – refusal of registration in Victoria – whether activities of building surveyor substantially the same as those of a building surveyor under respective registrations – decision under review affirmed
LEGISLATION
Administrative Appeals Act 1975 (Cth) – s 25(1)Mutual Recognition Act 1992 (Cth) – ss 19(1), 20, 20(5), 23(1), 23(1)(c), 29(1), 31(1), 31(2), 31(3), 34(1),
Planning and Environment Act 1987 (Vic)
Victorian Building Act (Vic) – ss 19, 24(1), Pt 3Western Australian Building Act (WA) – ss 17, 20, 20(1)(c)
CASES
Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255
Re Turner and Registrar, Supreme Court of Queensland and Others (No 2) (2003) 76 ALD 462
Rowe and New South Wales Police Service (1997) 47 ALD 442
Sande v Registrar, Queensland Supreme Court (1996) 40 ALD 1
Victorian Building Authority v Andriotis [2019] HCA 22Yousefi and Victorian Building Authority [2018] AATA 3542
SECONDARY MATERIALS
Building Services (Complaints Resolution And Administration) Regulations 2011 (WA) –
reg 4A(1)
Building Services (Registration) Regulations 2011 (WA) – reg 28A
National Construction CodeVictorian Building Regulations – sch 10, item 1
REASONS FOR DECISION
L M Gallagher, Member
2 December 2020
THE APPLICATION
Mr Cau is a senior building surveyor with a local government authority[1] and a director of a building surveying company (T6).[2] Mr Cau is registered in Western Australia as a
‘Building Surveying Practitioner Level 1 (Individual)’ (BSP-1) and as a ‘Building Surveying Contractor Level 1 (Company)’ (BSC-1) with the Building Services Board (under the Western Australian Building Commission) (together, the Western Australian registrations) (T2, pages 18 and 19).[3]
[1] R1, Tab 5 at [4.6] and [4.7].
[2][3] See also R1, Tab 5, Attachment MC07.
On 14 February 2020, Mr Cau applied to the Victorian Building Authority (the Authority) for registration as a building practitioner in Victoria in the category of Building Surveyor – Unlimited (BS-U) (the Victorian registration) on the basis of his Western Australian registrations, pursuant to the Mutual Recognition Act 1992 (Cth) (Mutual Recognition Act) (T2, pages 9 to 20).
On 25 February 2020, the Authority wrote to Mr Cau requesting proof of insurance,
which he provided in the form of a Certificate of Currency dated 28 February 2020
(T3 and T4).
On 5 March 2020, the Authority refused Mr Cau’s application for registration
(the Reviewable Decision) (T5). Mr Cau’s application was refused on the basis that, pursuant to s 23(1)(c) of the Mutual Recognition Act:
(a)His Western Australian registrations were not equivalent to the registrations sought in Victoria; and
(b)Equivalence could not be achieved by the imposition of conditions (T5).
On 5 March 2020, Mr Cau applied to the Administrative Appeals Tribunal (the Tribunal)
for a review of the Reviewable Decision (R1, Tab 1).
On 17 March 2020, an email from the Licensing Services Directorate of the Department of Mines, Industry Regulation and Safety in Western Australia to Mr Cau setting out the definition of building surveying work.[4] The email also stated that:
Individual building surveyors who wish to provide certification services to the public must be registered as a building surveying contractor level 1 or level 2.
[4] R1, Tab 3. See definition of building surveying work extracted at paragraph [18] below.
ISSUE BEFORE THE TRIBUNAL
The issue for determination by the Tribunal is whether, pursuant to s 23(1) of the Mutual Recognition Act (and applying the general principles of s 29(1) of the Mutual Recognition Act), Mr Cau’s Western Australian registrations (BSP-1 and BSC-1) are collectively equivalent to the registration he has applied for in Victoria (BS-U) such that he could be granted registration in Victoria by way of mutual recognition pursuant to s 23(1)(c) of the Mutual Recognition Act, and, if not, whether equivalence can be achieved by the imposition of conditions.
The scope of the current review
As noted by Senior Member Dr M Evans in Yousefi and Victorian Building Authority [2018] AATA 3542 (19 September 2018) (Yousefi):
(a)the determination of this application under the Mutual Recognition Act by the Tribunal does not involve a consideration of the Applicant’s work history, experience, competencies and skills as a building surveyor.[5] Where these matters are referred to in the present matter, it is in order to preserve the factual and chronological picture.
(b)rather, an assessment of equivalence is a somewhat technical exercise which evaluates whether the activities undertaken in each registration are substantially the same.[6]
[5] Yousefi at [7].
[6] Yousefi at [7].
The Authority shares Senior Member Dr M Evans’ view that the present matter ought to proceed on the basis set out in paragraph [8] above.[7] Mr Cau, however, does not and considers that the Authority ‘is taking a very narrow view of what registration actually means.’[8] Mr Cau is of the view that his responsibilities, roles and experiences are demonstrative of the ‘equivalency of the occupations’.[9] Mr Cau considers that the task at hand is:
…not to look at what the actual statute empowers…[but to] have a look at what activities a person who is registered is conducting…[10]
[to consider] whether the applicant is engaged in an equivalent occupation and therefore entitled to registration in Victoria…[11]
[7] See R1, Tab 6 at [11] and [12] and transcript, page 11 [40]-[45] and page 37 [15]-[30].
[8] Transcript, page 5 at [25].
[9] R1, Tab 7 at [12].
[10] Transcript, page 7 [15]-[20].
[11] R1, Tab 7 at [7].
At hearing, Mr Boni (for Mr Cau), went on:[12]
[12] Transcript, pages 6 [5]-[45] and 7 [5], [15]-[20].
MR BONI:The definition of registration is very significant in understanding what the Act is about. So the Act is not about a comparison of registration as such. It’s actually about saying what activities does a person actually engage in on account of holding a registration. It’s quite a different test.
MEMBER:But to say on account of holding a registration is something different to the wording of the Act if the activities authorised to be carried out under each registration. Do you see what I mean?
MR BONI:For mutual recognition to exist there needs to be some form of registration.
MEMBER:Yes. I don’t think anyone is disputing that, but I am looking at 26(1) where it says:
If the activities authorised to be carried out under each registration are substantially the same.
So it seems to me that the match up exercise takes place between registration A and registration B and the activities that are authorised under that registration, where I think what I am hearing the applicant’s argument is that it’s the activities that the person of a particular occupation actually carries out, registration aside.
MR BONI: Yes. …I would further submit the definition is seeking to define a registration very widely, which is in keeping with the principle of the Mutual Recognition Act itself where it is seeking -it’s an enabling Act. It’s not a restricting Act, it’s an enabling of people engaged in an equivalent occupation in one state to practice that equivalent occupation in another.
MEMBER: The word “enabling” is used a lot in this context in these types of arguments …wouldn’t it need to be enabling within the scope of what the Act enables? I hear what you’re saying that the view is that it’s a very narrow interpretation, but is an interpretation incorrect just because it’s narrow? It could be that it’s narrow because it’s narrow.
…it doesn’t automatically render it to be incorrect.
MR BONI:…What we need to do is not look at what the actual statute empowers, what we need to do is have a look at what activities a person who is registered is conducting, and if those activities are very similar, and they don’t have to be the same as the activities that are carried out in Victoria in this case, they are very similar, then we have an equivalent occupation and then by virtue of the Act in this case the applicant is entitled to be registered as a building surveyor in Victoria.
In the present matter, and in light of its comments at paragraph [10] above, the Tribunal sees no reason to depart from the approach set out by Senior Member Dr M Evans in Yousefi.[13] As noted by Mr Ayre (for the Authority) at the hearing:[14]
…it doesn’t matter for the purpose of the Mutual Recognition Act whether or not the individual has carried on the particular functions that are authorised under the registration. It’s not what they have actually done that matters, but what they are authorised to do under the registration and the allied legislation that matters,
and the tribunal in Yousefi actually made observations to similar effect later on in the decision…
[13] See extract at paragraph [17] below, particularly paragraphs [25] to [36] of the Yousefi decision.
[14] Transcript, page 11 at [30]-[35].
Therefore, the Tribunal proceeds on the basis that the correct approach is to compare the functions in the relevant legislation that are authorised by the relevant registrations.
MATERIAL BEFORE THE TRIBUNAL
Mr Cau’s application was heard by the Tribunal on 23 September 2020. The parties appeared at the hearing by telephone.[15] Mr Cau was represented by Mr Stefano Boni
from Western Legal Pty Ltd. The Authority was represented by legal counsel, Mr Glyn Ayres from Owen Dixon Chambers West, instructed by Ms Phey Goh from the Authority.
[15] Following the changes to national circumstances due to the COVID-19 pandemic, the Tribunal’s policy is not to conduct in-person hearings as a temporary measure.
The parties did not call any witnesses.
The Tribunal received into evidence a Tribunal Book (R1), being an indexed bundle of documents filed by both parties and comprising the entirety of the available documentary evidence. R1 contains:
(a)Tab 1 – Notification of review by the Tribunal, including Mr Cau’s application for review and related documents, dated 6 March 2020;
(b)Tab 2 – the T documents (68 pages) (T1-T7);[16]
[16] Refer to footnote 2.
(c)Tab 3
– Email from Mr Cau dated 28 April 2020, providing statement from the Department of Mines, Industry Regulation and Safety of Western Australia dated
17 March 2020;
(d)Tab 4 – Tribunal directions;[17]
(e)Tab 5
– Mr Cau’s Statement of Facts, Issues and Contentions (SFIC),
with attachments, undated and filed on 15 May 2020;
(f)Tab 6 – the Authority’s SFIC dated and filed on 15 June 2020;
(g)Tab 7 – Mr Cau’s submissions in reply, undated and filed on 30 June 2020; and
(h)Tab 8 – Tribunal’s listing notice.[18]
[17] The Tribunal did not formally tender its own directions into evidence at the hearing. Rather, it acknowledged the inclusion of the directions in R1 by the Authority and did not expressly exclude them from the bundle as a matter of administrative convenience.
[18] Refer similarly, to footnote 17.
The Tribunal has considered all of the material before it, as well as the oral submissions of the parties, and the evidence of Mr Cau and the Authority. The Tribunal is satisfied that the parties had an adequate opportunity to present their case and to be heard by the Tribunal.
LEGISLATION AND GENERAL PRINCIPLES
The Tribunal refers to legal framework and general principles relevantly set out by
Senior Member Dr M Evans in Yousefi, as follows:
Background to the Mutual Recognition Act
[13]In Sande v Registrar, Supreme Court of Queensland (1996) 40 ALD 1 (Sande) Lockhart J, at 6–7, explained the background to the Mutual Recognition Act as follows:
The first task is to consider the Act: its origin, construction and application. The Act forms part of a legislative scheme which involved the enactment of complementary legislation by the parliament of each of the states and the legislature of each of the territories and the Commonwealth parliament. The purpose of the scheme was to establish the legal framework for the mutual recognition by the states and territories of each other’s differing regulatory standards regarding goods and occupations. It sought to remove (a) unnecessary impediments to interstate trade in goods arising from differing state and territory standards and regulations, and (b) artificial barriers to the mobility of performance of services amongst states and territories arising from local registration or licensing laws. The Act was perceived by the Commonwealth Parliament and by the parliaments of the states and legislatures of the territories as contributing to the creation of a more efficient national market and enhancing Australia’s international competitiveness.
The Act arose out of a series of meetings of the heads of government of the Commonwealth, states and territories, which had been conducted over two years or more with the objective of achieving better relations between the governments to improve the operation of the national economy. Agreement was reached by the heads of government at the Special Premier’s Conference in October 1990, and the scheme was finalised on 11 May 1992, when the heads of government signed the final agreement endorsing a version of the prospective legislation which was substantially in the form in which the Act was enacted. The agreement required the states and territories to use their best endeavours to pass the necessary legislation by 31 October 1992, and for the Commonwealth to use its best endeavours to pass legislation by 1 January 1993.
The mechanism for implementing the scheme was s 51(xxxvii) of the Commonwealth Constitution, which empowers the Commonwealth parliament, subject to the Constitution , to make laws for the peace, order, and good government of the Commonwealth with respect to:
‘…Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law…’
In the case of the mutual recognition legislation, the states and territories agreed to request and empower the Commonwealth to pass a single Commonwealth Act which, once enacted by the Commonwealth, would override any state or territory Acts or regulations that are inconsistent with the principles of mutual recognition set out in the Act.
[14]The relevant request and authorisations by the Parliaments of Western Australia and Victoria are the Mutual Recognition (Western Australia) Act 2010 (WA) and the Mutual Recognition (Victoria) Act 1998 (Vic), respectively.
[15] Lockhart J continued on, at 18 of Sande, to state that:
The Act is intended to remove artificial barriers to mobility of services and labour caused by regulatory differences among the states and territories of Australia. If a person is registered to carry out an occupation in one state or territory, then he or she should be able to be registered and to carry on the equivalent occupation in any other state or territory, without undergoing examinations or other assessments with respect to educational qualifications and experience. Nevertheless the Act preserves the right of the state or territory in which the applying person seeks to practise (described in the Act as the second state) to regulate the manner of carrying on an occupation in that state so long as the laws of that state apply equally to persons carrying on or seeking to carry on the occupation under the law of the second state, ss 17 and 20 of the Act.
Purpose of the Act
[16]The principal purpose of the Mutual Recognition Act is set out in s 3 of the Mutual Recognition Act which provides as follows:
The principal purpose of this Act is to enact legislation authorised by the Parliaments of States under paragraph (xxxvii) of section 51 of the Commonwealth Constitution, and requested by the legislatures of the Australian Capital Territory and the Northern Territory, for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia.
Mutual recognition principle and occupations
[17]Section 16 of the Mutual Recognition Act is contained in “Part 3 — Occupations” and provides that:
(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.
(Original emphasis.)[18]Section 17 of the Mutual Recognition Act sets out the “mutual recognition principle” as follows:
(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 or possession of some qualification or experience relating to fitness to carry on the occupation.
[19]Section 4(1) of the Mutual Recognition Act contains the following relevant definitions:
conditions, when used in relation to occupations, means conditions, limitations or restrictions.
…
equivalent, when used in relation to occupations, has a meaning affected by Division 4 of Part 3.
…
local registration authority of a State for an occupation means the person or authority in the State having the function conferred by legislation of registering persons in connection with their carrying on that occupation in the State.
occupation means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted.
…
registration includes the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation.
Registration process
[20]Section 19(1) of the Mutual Recognition Act provides that a person may apply for registration in accordance with the mutual recognition principle, and specifically:
(1)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.
[21]With respect to entitlement to registration and continued registration,
s 20 of the Mutual Recognition Act 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 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.
(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 to 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.
(5)The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person’s registration in the first State or that are necessary to achieve equivalence of occupations.
(6) This section has effect subject to this Part.
[22]The action that must be taken following the lodgement of the notice by an Applicant is provided for in s 21 of the Mutual Recognition Act:
(1)Registration must be granted within one month after the notice is lodged with the local registration authority under section 19.
(2)When granted, registration takes effect as from the date the notice was lodged.
(3)However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration.
(4)If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.
[23]Section 23 of the Mutual Recognition Act provides that the local registration authority may refuse registration. The relevant subsections are:
(1) A local registration authority may refuse the grant of registration if:
…
(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.
(2)A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.
[24]The notification of the decision must be in writing, pursuant to s 24 of the Mutual Recognition Act:
A local registration authority must give the person who lodges a notice in accordance with section 19 a notice in writing of its decision to grant registration, or to postpone or refuse the grant of registration, or to impose conditions on registration.
Equivalence of occupations
[25]Section 28 of Division 4 of Part 3 of the Mutual Recognition Act, provides that “[t]he equivalence of occupations carried on in different States is to be determined in accordance with this Part.”
[26]Section 29 of Division 4 of Part 3 of the Mutual Recognition Act relevantly 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.
(Emphasis added.)
[27]In Western Australia, the applicable legislation under which building surveying practitioners and contractors are registered is the
Building Services (Registration) Act 2011 (WA) (BSRA), s 17 and 18.
In Victoria, the applicable legislation under which registration is sought is the Building Act 1993 (Vic) (the Victorian Building Act), specifically s 169.[28]Pursuant to s 32 of the Mutual Recognition Act, Ministers can make a declaration that specified occupations are equivalent. These declarations are also published in the Gazette. Section 32 of the Mutual Recognition Act provides:
(1)A Minister from each of 2 or more States may jointly declare,
by notice in the Gazette, that specified occupations are equivalent, and may specify or describe conditions that will achieve equivalence.(2)The declaration may be amended or rescinded in the same way.
(3)The declaration has effect only in relation to the States concerned.
(4)The appropriate local registration authority is to give effect to the declaration.
[29]No such Ministerial declaration has been made with respect to quantity surveyors.
[30]In Rowe and New South Wales Police Service (1997) 47 ALD 442 (Rowe), at para [12], Deputy President Forgie explained the steps that the Tribunal should apply when considering the substantial equivalence of occupations under s 29 of the Mutual Recognition Act:
It is clear from this section that there are, in practical terms, five distinct steps to be undertaken in determining the equivalence of occupations. The first is to identify the occupation for which the person is registered in the first state or territory. This is followed by the identification of the activities authorised to be carried out under that registration. The third step is to identify an occupation in the second state or territory for which a person may be registered and the fourth to ascertain the activities authorised to be carried out under that registration. A comparison is then made between the activities authorised to be carried out under each of the registrations to determine whether those activities are substantially the same. That is the fifth step. Part of that fifth step is to consider whether conditions should be imposed on registration to achieve equivalence between those occupations.
(Emphasis added.)
[31]These steps were summarised by Deputy President Purvis in Re Turner and Registrar, Supreme Court of Queensland and Others (No 2) (2003) 76 ALD 462 (Turner) at [28]:
In order that the relevant ‘substantial equivalence of occupation’
… may be ascertained a number of distinct steps of inquiry have to be undertaken namely:(1) identify the occupation for which the person is registered in the first state or territory;
(2) identify the activities authorised to be carried out under that registration;
(3) identify an occupation in the second state or territory for which a person may be registered;
(4) ascertain the activities authorised to be carried out under that registration;
(5) a comparison is then made between the activities authorised to be carried out under each of the registrations to determine whether those activities are substantially the same and recognise whether conditions should be imposed on registration to achieve equivalence between those occupations.
(Emphasis added.)
[32] In Sande, Davies J stated, at 2, that:
It is fundamental to the operation of these provisions that there be an equivalence between occupations carried on in different states. Such equivalence will exist where the activities authorised to be carried out under each registration are substantially the same. Equivalence may be achieved by means of the imposition of appropriate conditions.
(Emphasis added.)
[33]Deputy President McMahon, in Cleary and Nurses’ Board of the Northern Territory [1996] AATA 171 (Cleary), further explained:
To establish what is an equivalence of occupation for the purposes of s 17, it is necessary to look to s 29. Sub-section (1) merely requires the activities in both States to be ‘substantially the same’. There is no requirement that they be identical. The section, it should be noted, directs attention to the activities to be carried on, not to the legal system of registration. (Emphasis added.)
[34]In Turner, Deputy President Purvis considered the meaning of “substantially the same” at [24]–[25]:
(24)The context in which the word ‘substantially’ is found is as a qualification upon the word ‘same’. That is the word means something less than ‘the same’, that is, ‘identical with’. It seems to the tribunal that the more apt paraphrase of the concept is by the use of the words ‘in the main’ or ‘as to the greater part’ or ‘essentially’:
see also Secretary, Department of Social Security v Wetter (1993) 40 FCR 22 at 29; 29 ALD 310 at 317; 112 ALR 151 at 158 ; Cmr for Superannuation v Scott (1987) 71 ALR 408 at 411.(25)The word does not stand alone but qualifies the concept of ‘the same’. When considered in the context of the intent of the legislation, as already discussed, that of mutually recognising the equivalence of occupations, it is appropriate to consider whether the activities of the relevant occupations are ‘in the main’ or ‘as to the greater part’ the same. The judge of fact is to look at the totality of the activities in which a licensed conveyancer is able to engage and the totality of the activities in which a solicitor is able to engage and as a matter of fact and common sense ask the question whether these activities are in the main, or as to the greater part the same. While ‘substantially’ cannot be quantified(seeRe Lokuge and Department of Employment, Education and Training (1994) 35 ALD 785at 788; Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367; 42 FLR 331 ) it does suggest that a significant and considerable portion of the activities must be the same.
A determination as to the latter depends partly on the tribunal’s own judgment and partly on the burden of the evidence tendered. Whether there is a substantial sameness is a question of fact.(Emphasis added.)
[35]Further, in Turner at [18], Deputy President Purvis stated that the appropriate approach to the question of equivalence was a practical, common sense one:
(18)The above mentioned provisions have as a fundamental prerequisite to their operation the existence of an equivalence between occupations carried on in different states such equivalence existing were the activities authorised to be carried out under each registration are substantially the same. It is to be observed however, that equivalence may be achieved by means of the imposition of appropriate conditions… However, …the Act is to be applied in a practical, common sense manner regard being had to the substance of the matter and to the substantial equivalence of occupations. The Act seeks to facilitate the right of Australians entitled to practise in one state or territory to pursue their vocations throughout Australia without submitting themselves to examinations or obtaining qualifications required by another region: … It is not a matter of forcing the will of one state upon another. (Emphasis added.)
[36]Equivalence must be determined on a case by case basis, and will depend upon the specific occupations and statutes in question. In Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 62 ALD 535 (Lawrence), Lockhart J[19] stated at [68]:
The occupation in respect of which registration is sought in the second state must be an equivalent occupation to that for which the applicant is registered in the first state. Equivalence is tested pursuant to s 29(1) by determining whether the activities authorised to be carried out under each registration are substantially the same whether or not that result is achieved by means of the imposition of conditions. That is a judgment to be made by reference to the terms and statutory context of the registration in each state. (Emphasis added.)
[19] [sic] French J.
Building surveying work
Regulation 4A(1) of the Building Services (Complaints Resolution and Administration) Regulations 2011 (WA) (the WA Building Services Regulations) defines
building surveying workas:
(a)the examination of plans and specifications for a building or incidental structure to assess the safety, accessibility and energy efficiency of a building or incidental structure if the building or incidental structure is built in accordance with the plans and specifications; and
(b)the examination of an existing building or incidental structure to assess the safety, accessibility and energy efficiency of the building or incidental structure.
Regulation 28A of the Building Services (Registration) Regulations 2011 (WA) defines building surveying work level 1 as:
building surveying work in respect of any building or incidental structure.
JURISDICTION
Section 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that the jurisdiction of the Tribunal is given to it by other enactments, which grant the Tribunal jurisdiction to review certain decisions made under those enactments.
Section 34(1) of the Mutual Recognition Act provides that an application can be made to the Tribunal for review of a decision of a local registration authority in relation to its functions.
The Reviewable Decision was made under s 23(1)(c) of the Mutual Recognition Act[20]
in relation to its statutory functions.
[20] Refer to paragraph [4] above.
As such, the Tribunal is satisfied it has jurisdiction in the present matter.
In addition to the orders that can be made by the Tribunal set out in s 43(1) of the AAT Act, the Mutual Recognition Act confers further and more specific powers on the Tribunal as follows:
(a)On a review, the Tribunal may make an order that a person who is registered in a particular occupation in a particular State is or is not entitled to registration in another state in a particular occupation, and may specify or describe conditions that will achieve equivalence (s 31(1) of the Mutual Recognition Act).
(b)
On such a review, and in certain circumstances, the Tribunal may make a declaration that occupations carried on in two States are not equivalent,
which will be published in the Gazette (ss 31(2) and 31(3) of the Mutual Recognition Act).
To date, no such declaration has been made by the Tribunal with respect to quantity surveyors. As noted by Senior Member Dr M Evans in Yousefi;[21]
…the Tribunal will only make such a declaration in rare circumstances.
It should exercise caution in doing so, as explained by Deputy President McMahon in Cleary, at [48]-[50], and only after receiving “strong evidence”…
[21] At [43].
MR CAU’S SUBMISSIONS
Mr Cau submitted that he should be registered as a building surveyor in Victoria by way of mutual recognition of his Western Australian registrations. This is because, Mr Cau submitted:
(a)He carries out activities in WA both in the capacity of an independent building surveyor and as an employee of a local government authority.[22]
[22] R1, Tab 5 at [9.6].
(b)Comparing the activities in paragraph [26(a)] above with the activities authorised to be carried out by a registered building surveyor in Victoria demonstrates differences in the activities permitted to be carried out by an independent building surveyor in Western Australia compared to an independent building surveyor in Victoria.[23]
[23] R1, Tab 5 at [9.7]-[9.8]
(c)
The differences referred to in paragraph [26(b)] above are on account of legislative controls and restrictions imposed on the respective States’ building surveyors,
rather than a difference in their qualifications or experience,[24]
[24] R1, Tab 5 at [9.9].
the tertiary qualifications and experience required for each registration in each jurisdiction being substantially similar.[25]
[25] R1, Tab 5 at [9.10]-[9.11].
(d)
Therefore, insofar as academic or technical qualifications and requirements,
the two occupations are equivalent occupations,[26] the differences coming about through what the relevant state legislation permits a registered building surveyor to do.[27]
(e)A registered building surveyor in Victoria is permitted to carry out a number of functions, which are not permitted to be carried out by law by an independent Western Australian registered building surveyor and can only be carried out in Western Australia by a permit body.[28] The permit body can only carry out its functions through its employees who operate with the delegated authority with the permit body.[29]
(f)He is an employee of a local government authority, and in this role has the delegated authority to carry out the functions referred to the context of those permitted to be carried out by a registered building surveyor in Victoria (in paragraph [26(e)] above). Mr Cau holds the necessary registrations enabling him to do so.[30]
(g)In fulfilling the functions of his role as an employee of a local government authority, Mr Cau undertakes all of the functions which a Victorian registered building surveyor undertakes and more.[31]
(h)In light of the above, he carries on an equivalent occupation in Western Australia to that of a Victorian registered building surveyor.
[26] R1, Tab 5 at [9.11].
[27] R1, Tab 5 at [9.13].
[28] R1, Tab 5 at [9.14]-[9.15].
[29] R1, Tab 5 at [9.16].
[30] R1, Tab 5 at [9.18].
[31] R1, Tab 5 at [9.19]-[9.20].
Mr Cau also sought to distinguish the present matter from Yousefi on the basis of his being employed by a permit authority and holding delegated authorities to deal with a range of building issues.[32] Given the rationale for the present Tribunal adopting the approach taken in Yousefi (set out at paragraphs [8], [11] and [12] above), these factual matters have no bearing on the Tribunal’s deliberations on the point. As noted by the Authority (and correctly,
in the Tribunal’s view):[33]
So it’s not the case that the delegations authorise the carrying out of some new or different occupation or extend the occupation of the building surveyor as is found the legislation. It just so happens that Mr Cau is a building surveyor and he has been delegated the power to issue building permits but that’s not relevant for the purpose of the inquiry under the Mutual Recognition Act.
[32] Transcript, page 16 at [15]-[40] and page 28 at [45].
[33] Transcript, page 19 at [15].
Regarding his claimed entitlement to registration, Mr Cau cited numerous paragraphs of the decision of Victorian Building Authority v Andriotis [2019] HC 22 (7 August 2019),
as follows:[34]
[34] Footnotes omitted.
…
[2]This appeal concerns the operation of the Mutual Recognition Act 1992 (Cth) (“the MRA”). The MRA was enacted pursuant to s 51(xxxvii) of the Commonwealth Constitution , which provides for the power of the Commonwealth legislature “to make laws for the peace, order, and good government of the Commonwealth with respect to … matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States”. The relevant referrals by the States and the requests by the legislatures of the Territories followed upon an intergovernmental agreement between the Commonwealth, the States and the Territories concerning mutual recognition.
[3]The principal purpose of the MRA is to promote the goal of freedom of movement of goods and service providers in a national market in Australia. That goal is sought to be achieved by providing for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupations, as the MRA’s long title suggests. Part 2 of the MRA deals with goods produced in or imported into a State and their sale in another State. 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.
…
[23]A construction of s 17(2)(b) which excludes a law which allows a local registration body to determine the question of the fitness of a person to carry on an occupation as a prerequisite to registration is consistent with the scheme of the MRA and the mutual recognition principle on which it is founded.
…
[26]The fact that, when granted, registration takes effect as from the date of notice further confirms, if that were necessary, that notification of registration is the basis for the entitlement. It does not suggest as necessary any further consideration of matters which it may be expected the first State has addressed when granting registration, such as fitness or suitability for the occupation. This is borne out by what was said in the Second Reading Speech of the Bill that became the MRA:
“A person will only need to give notice … to be entitled immediately to commence practice in an equivalent occupation in that second State or Territory. Local registration authorities will be required to accept the judgment of their interstate counterparts of a person’s educational qualifications, experience, character or fitness to practise.”
…
[28]The VBA submits that a person registered in the first State cannot be said to have an absolute entitlement to registration. This may be seen by the operation of s 17(2) with respect to a State law. The VBA gives as an example s 169(2)(e)(i) of the Building Act, which requires an applicant for registration under that Act to prove that they have insurance cover. Section 17(2) would permit that requirement to be imposed.
[29]The answer to the submission lies in the power given by the MRA to the local registration authority of the second State to condition registration under s 20(5). It may do so as long as the conditions are not more onerous than would be imposed in similar circumstances. The use of that power to condition would be consistent with the scheme of the MRA; satisfaction of a requirement of a State Act as a precondition to a grant would not.
…
[39]It is difficult to accept that any kind of discretion to refuse a grant of registration could exist in a scheme which provides a rule by which an entitlement to a grant of registration arises on fulfilment of the notification provisions and where power is given to a local registration authority to refuse registration on limited grounds relating to the provision of false and misleading information in the notice or the lack of an equivalent occupation. It is especially difficult when it is expressly provided that the law of the second State is to be taken to accept registration in the first State as a sufficient ground of entitlement to registration under the MRA.
Mr Cau went on to submit that (therefore) the Authority’s refusal to grant his application for registration (for reasons set out at paragraph [4) above) ‘directly undermines the intent’ of the Mutual Recognition Act.[35]
[35] R1, Tab 5 at [9.27]-[9.28].
As to equivalence and how to measure it for present purposes, Mr Cau submitted that:
(a)
the occupation in which he is engaged, and for which he requires a
Western Australian registration is an equivalent occupation to that of a Victorian registered building surveyor;[36]
[36] R1, Tab 5 at [9.29].
(b)the measure of ‘equivalence’ is not to be based solely on what functions a registration permits a practitioner to engage in, but rather what functions a practitioner is actually engaging in through the pursuit of his occupation;[37]
[37] R1, Tab 5 at [9.30].
(c)
the authority’s refusal to grant his application failed to recognise that his occupation as a registered BSP-1 is equivalent to the occupation of a registered
‘Building Surveyor – Unlimited’ (BS-U) in Victoria;[38] and
(d)
being engaged in an equivalent occupation, having applied for registration under
s 19(1) of the Mutual Recognition Act, he is entitled to such registration,
without further enquiry by the Authority.[39]
[38] R1, Tab 7 at [4].
[39] R1, Tab 5 at [9.31].
THE AUTHORITY’S SUBMISSIONS
The Authority submitted that the Tribunal cannot be satisfied that Mr Cau’s WA registrations are equivalent to the Victorian registration applied for because the range of activities authorised by his WA registrations is substantially narrower than the range and nature of activities authorised by the Victorian registration.[40]
[40] R1, Tab 6 at [9].
Mr Cau disagrees with the Authority’s submission at paragraph [30] above and says that the test for mutual recognition and registration as a building surveyor in Victoria is not whether the Victorian and Western Australian registrations are equivalent, but whether
Mr Cau is engaged in an equivalent occupation in Victoria on account of his Western Australian registrations.[41]
[41] R1, Tab 7 at [9].
The Authority went on to make the following further submissions (and Mr Cau the following reply submissions) regarding the equivalency test to be applied in the present matter:
The Equivalency Test
Authority’s submission
Mr Cau’s submission in reply
It is relevant to compare the activities authorised by the Victorian registration of BS-U against the activities authorised by Mr Cau’s WA registrations.[42]
Disagrees. The comparison is not of the activities authorised by the registrations, but rather what activities are permitted to be carried out by Mr Cau on account of holding such registration.[43]
Mr Cau has provided evidence to the Authority and to the Tribunal about his professional experience and his competencies in building surveying work. This evidence is irrelevant to the assessment of equivalency under the Mutual Recognition Act and to any other question before the Tribunal.[44]
Disagrees. The role and activities carried on by Mr Cau on account of holding a registration is fundamental in assessing the equivalency of the occupation under the Act.[45]
In Lawrence, French and Carr JJ found that the determination of equivalency is to be made according to the terms of the statutory context of the registration in each State. The range of activities authorised by the relevant registrations in Victoria and Western Australia must be determined by reference to the Acts and regulations governing the building industries in each state.[46]
Disagrees.[47]
In Victoria, the relevant legislation is the Building Act 1993 (Vic) (the Victorian Building Act) and the Building Regulations 2018 (Vic) (the Victorian Building Regulations).[48] In Western Australia, the relevant legislation is the Building Act 2011 (WA) (the WA Building Act), the Building Regulations 2012 (WA) (the WA Building Regulations) and the WA Building Services Regulations.[49]
Agrees.[50]
The degree of equivalency that is required under s 29 of the Mutual Recognition Act is that the registrations be ‘substantially the same.’ ‘Substantially the same means a degree of equivalency that is less than ‘the same’, but higher than ‘substantially similar.’ Registrations can be made substantially the same by the imposition of conditions.[51]
Disagrees and says further that s 29 of the Mutual Recognition Act requires that the occupations permitted to be carried out under a registration must be substantially the same and that occupations can be made substantially similar by the imposition of conditions.[52]
In assessing equivalency, it is only relevant to consider activities authorised by relevant registrations under the respective regulatory regime. This is the plain meaning of words ‘activities authorised to be carried out under each registration’ as prescribed by s 29 of the Mutual Recognition Act. It is not relevant to consider activities that a registered practitioner may undertake by authority of some other appointment, employment or engagement. The scope of the equivalency test is clearly limited to activities that are directly authorised by the grant of registration itself.[53]
Agrees that in assessing equivalency, it is only relevant to consider the activities permitted to be carried out by the relevant registrations under the relevant State’s regulatory regime.
Disagrees with the remainder of the Authority’s submission.[54]
[42] R1, Tab 6 at [14].
[43] R1, Tab 7 at [14].
[44] R1, Tab 6 at [15].
[45] R1, Tab 7 at [15].
[46] R1, Tab 6 at [16]. The Authority has cited Lawrence at pages 68 and 154 respectively. The Tribunal takes these references to mean paras [68] and [154] of Lawrence.
[47] R1, Tab 7 at [16]. Mr Cau goes on to cite paragraph [68] of the Lawrence decision but makes no submission following on from this or otherwise explaining his reason for the disagreement.
[48] Item 1, Sch. 10 of the Victorian Building Regulations set out the functions to be performed by a BS-U in Victoria, for all classes of building of unlimited height or floor area.
[49] R1, Tab 6 at [17].
[50] R1, Tab 7 at [17].
[51] R1, Tab 6 at [18].
[52] R1, Tab 7 at [18].
[53] R1, Tab 6 at [19].
[54] R1, Tab 6 at [19].
The Authority made the following submissions[55] regarding the Victorian BS-U registration and the Western Australian BSP-1 and BSC-1 registrations authorising different activities regarding the assessment and issuing of building permits, as follows:
[55] R1, Tab 6 at [21] to [24] and R1, Tab 7 at [21] to [27].
(a)In Victoria, a building surveyor is authorised to issue building permits[56] in certain circumstances[57] having considered matters relevant to his or her assessment in doing so.[58]
[56] Section 19 of the Victorian Building Act.
[57] Those circumstances being set out in Part 3 of the Victorian Building Act.
[58] R1, Tab 6 at [22].
(a)
In Western Australia, a building surveyor (in any category of building registration)
is not authorised to issue a building permit. Rather, a permit authority is authorised to issue a building permit in Western Australia, if the authority is satisfied that the application complies with the necessary requirements.[59]
[59] Section 20 of the WA Building Act. See R1, Tab 6 at [22] and R1, Tab 7 at [22].
(b)
In Western Australia, a building surveyor is required to provide a certificate of
design compliance to the permit authority[60] and the WA Building Act does not require a building surveyor to assess, certify or approve compliance with other legal requirements.[61] In contrast, s 24(1) of the Victorian Building Act requires that a building surveyor must not issue a building permit unless he or she is satisfied that the building work and the building permit will comply with the entirety of the Victorian Building Act and regulations, provisions of the Planning and Environment Act 1987 (Vic) and other compliance issues such as relevant consents from reporting authorities being obtained.[62]
(c)
The Victorian legislation gives building surveyors a far greater discretion and
more responsibility, as it requires a building surveyor to assess compliance with various legal and statutory requirements specific to Victoria, not only compliance with the National Construction Code. Therefore, the activities and functions of a Victorian building surveyor exceed those required by the WA registrations.[63]
[60] Section 20(1)(c) of the WA Building Act. See R1, Tab 6 at [23]. Mr Cau is of the view that a building surveyor may provide a certificate of design compliance to the permit authority, but such provision is not a requirement, (given that) an applicant for a building permit may remit an uncertified building permit application to a permit authority for certification by the permit authority (R1, Tab 7 at [33]).
[61] Mr Cau disagrees and say that a building surveyor must assess that a proposed building or incidental structure complies with all relevant laws and legal requirements prior to the issue of a building permit by a permit authority (R1, Tab 7 at [25], citing ss 17 and 20 of the WA Building Act).
[62] R1, Tab 6 at [23]. Mr Cau is of the view that the legislative framework in Australia imposes a similar or greater obligation on a building surveyor (see R1, Tab 7 at [26].
[63] R1, Tab [6] at [24]. Mr Cau disagrees and says that (while) the legislative regimes in Victoria and Western Australia differ, the activities engaged in by registered building surveyors in each State are the same or substantially similar (R1, Tab 7 at [27]).
The Authority went on to make numerous submissions (and Mr Cau responsive submissions) regarding the Victorian BS-U registration and the Western Australian
BSP-1 and BSC-1 registrations authorising different activities regarding:
(a)the inspection of building work;[64]
(b)protection works;[65]
(c)enforcement of safety and building standards;[66] and
(d)approving buildings for occupation or use.[67]
[64] R1, Tab 6 at [25] to [26] and R1, Tab 7 at [28] to [29].
[65] R1, Tab 6 at [27] to [30] and R1, Tab 7 at [30] to [33].
[66] R1, Tab 6 at [31] to [33] and R1, Tab 7 at [34] to [37].
[67] R1, Tab 6 at [34] to [36] and R1, Tab 7 at [38] to [40].
The parties’ positions on the matters set out at paragraph [32] above diverge in several respects. The most relevant point of difference on those matters for present purposes is that in relation to the enforcement of building and safety standards and approving buildings for occupation or use, the Authority is of the view that in Victoria these powers are vested with building surveyors. The Authority says that in Western Australia, however,
the equivalent powers are vested in the permit authority.[68] Mr Cau disagrees and says that in both cases a building surveyor in Western Australia carries out all the functions of a Victorian building surveyor.[69]
[68] R1, Tab 6 at [32], [33] and [36].
[69] R1, Tab 7 at [37] and [40].
The Authority submitted in conclusion that the differences in the activities authorised by the Victorian BS-U registration and the Western Australian BSP-1 and BSC-1 registrations are substantial, and equivalence cannot be achieved by the imposition of conditions
(and Mr Cau further submissions in response),[70] noting that:
(a)In Western Australia, decision-making responsibility for key stages of building control process is vested in a permit authority rather than a building surveyor appointed in respect of building work. The Activities authorised by a BS-U in Victoria require consideration and assessment of a broader range of compliance issued, than the activities authorised by WA registrations.[71] Mr Cau made no submissions on this point as he did not know what was being referred to as ‘key stages’ by the Authority.[72]
(b)
The Mutual Recognition Act imposes a general duty on the Authority to facilitate the operation of the mutual recognition scheme, including to make use of its power to impose conditions provided by s 20(5) of the Mutual Recognition Act.[73]
Mr Cau disagrees and says that s 20 of the Mutual Recognition Act imposes an obligation on the Authority to register an applicant engaged in an equivalent occupation, with or without conditions.[74]
(c)To achieve equivalence through the imposition of conditions would require preventing Mr Cau from carrying out some of his functions of a BS-U in Victoria, which would be impractical and would deviate from the functions conferred upon a BS-U in Victoria and defeat the purpose of the registration.[75] Mr Cau disagrees and maintains that the activities carried out by a building surveyor in Victoria are the same or similar to the activities carried out by a building surveyor in Western Australia.[76]
[70] R1, Tab 6 at [37] to [45] and R1, Tab 7 at [41] to [47].
[71] R1, Tab 6 at [37].
[72] R1, Tab 7 at [41].
[73] R1, Tab 6 at [39].
[74] R1, Tab 7 at [43].
[75] R1, Tab 6 at [45].
[76] R1, Tab 7 at [46] and [47].
CONSIDERATION
Mr Cau is a senior building surveyor and holds two registrations in Western Australia
(set out and defined in paragraph [1] above). He is seeking registration as a building surveyor in Victoria under the Mutual Recognition Act (see paragraph [2] above).
Mr Cau submitted the Western Australian registrations to the Authority with his application for the Victorian registration and both of the registrations constituting the Western Australian registrations were considered together in assessing equivalency. Accordingly, in most of the parties’ submissions, the Western Australian registrations are dealt with together.
The Tribunal will continue in that vein in its consideration.
At the hearing, the main focus of Mr Cau’s submissions was the comparison between the activities authorised to be carried out by a registered building surveyor in Victoria and those that Mr Cau is authorised to carry out in his role as an employee of a government authority. In this role, Mr Cau submitted, he has the delegated authority to carry out the functions permitted to be carried out by a registered building surveyor. Therefore, in Mr Cau’s submission, he carries out an equivalent occupation in Western Australia to that of a Victorian registered building surveyor and his application should succeed. The Tribunal has earlier addressed the flaws in Mr Cau’s approach to the equivalency test in the context of the scope of this review.[77]
[77] See paragraphs [8] to [12] above.
The task for the Tribunal in the present matter is, however, to consider and apply the
five-step process identified by Deputy President Forgie in Rowe, as summarised by Deputy President Purvis in Turner. This process requires the Tribunal to identify and compare in specific detail the activities authorised to be carried out under each registration in each of the respective jurisdictions in question.
The main focus of the Authority’s submissions was (as it was in Yousefi), the difference in the assessment and the issuing of building permits between Western Australia and Victoria.[78]
[78] See paragraphs [31] to [37] above.
Given the clear parallels between the present matter and Yousefi,[79] the Tribunal adopts the reasoning of Senior Member Dr M Evans in forming its opinion that, as a matter of statutory construction, the activities relating to the assessment and issuing of building permits in Western Australia and Victoria are quite different, and cannot be regarded as substantially similar. Senior Member Dr M Evans’ reasons were as follows:
[79][64]…the permits regime under the Victorian legislation gives the building surveyor a far greater discretion, and far more responsibility than in Western Australia, and requires the building surveyor to assess compliance with various legal and statutory requirements that are specific to Victoria, and not just compliance with the National Construction Code.
In the area of building permits, the activities of a building surveyor under the Victorian registration regime exceed those required under the Western Australian registration, and could not be regarded as substantially similar.[65]Additionally, under the Victorian statutory regime, building surveyors undertake additional activities with respect to safety and compliance issues relating to the construction and use of buildings, which in Western Australia are undertaken by the permit authority.
Under s 106 of the Victorian Building Act, a building surveyor may cause a building notice to be served on an owner of a building in a variety of circumstances, including if the building surveyor is of the opinion that building work that has been carried out contravenes a building permit, the Victorian Building Act or regulations; if the use of the building contravenes the Victorian Building Act or regulations; and for other safety or health reasons specified in that section. Further, generally, under Division 2 of Part 8 of the Victorian Building Act, building surveyors can issue building orders requiring owners of land to stop work, undertake work, cease occupation of a building, or evacuate a building. In Western Australia, building surveyors cannot undertake similar activities, and instead, under Division 5 of Part 8 of the Western Australian Building Act, the permit authority is responsible for making these types of building orders (see s 110 and s 112 Western Australian Building Act).[66]Similarly, under s 38 of the Victorian Building Act, a building surveyor is authorised to issue a certificate of final inspection. Part 5 of the Victorian Building Act provides that an application for an occupancy permit must be made to a building surveyor (s 41 Victorian Building Act), and a building surveyor is authorised to make a decision about an application for an occupancy permit which includes a decision to issue the permit with or without conditions, or to refuse an occupancy permit (s 43 Victorian Building Act). However, under s 58(1) in Part 4 of the Western Australian Building Act, the application for an occupancy permit is made to the permit authority who must grant the occupancy permit if the permit authority is satisfied of the matters listed in subsections (a) through to (l) of the Western Australian Building Act. Two of these matters relate to the building surveyor who must sign a certificate of construction compliance or building compliance (see s 58(1)(b) and (c)) under s 56 and s 57 of the
Western Australian Building Act). Consequently, the activities of the building surveyor, under these two statutory regimes, cannot be said to be substantially similar because the Victorian building surveyor has responsibilities in connection with the issuing of permits which the Western Australian building surveyor does not have because these activities are undertaken by the relevant permit authority.[67]When one compares other provisions of the Victorian and Western Australian legislation with respect to the other activities of building surveyors, there are some other differences whereby the Victorian building surveyor is empowered to undertake additional activities to those that a building surveyor is authorised to undertake in Western Australia.
For example, under Part 7 of the Victorian Building Act, a building surveyor has a more active role in assessing whether protection works are required to protect an adjoining property. The building surveyor will consider and make a determination about the appropriateness of the proposed protection works. However, in Western Australia, the responsibility to protect an adjoining property rests with the “person responsible for [the] work”
(see for example, s 76, 77, 78, 79 [sic], and 80 of the Western Australian Building Act) and the building surveyor is not mentioned in these statutory provisions.[68]After undertaking the comparison of activities authorised to be carried out under each of the registrations, it cannot be concluded that the activities are substantially the same. As noted above, there is no requirement that the activities should be identical, however they could not be said to be in the main or as to the greater part, the same, particularly because of the additional activities undertaken by a building surveyor under the registration in Victoria, which are not undertaken by building surveyors in Western Australia.
[69]For the reasons outlined above, it cannot be concluded that the activities undertaken under the registrations in Western Australia and Victoria are substantially similar.
[70]Additionally, as the registration in Victoria requires the building surveyor to undertake additional activities, which include assessing compliance with various legal and statutory requirements that are specific to Victoria, the differences are too substantial to be resolved through the imposition of conditions. In this regard, the Tribunal agrees with the Respondent’s submission that ‘to achieve equivalence through the imposition of conditions, it would be necessary to prevent the applicant from carrying out many of the most important functions of a bit [sic] Victorian building surveyor’ including the issuing of permits, which is impractical and would defeat the purpose of the registration (Exhibit R2, para [33]).
(Emphasis added.)
CONCLUSION
In light of the above, and given the comments of Deputy President McMahon in Cleary,
the Tribunal considers it would be inappropriate to make a general declaration under s 31(2) of the Mutual Recognition Act that the occupations carried on under the registrations in Western Australia and Victoria are equivalent.
Given that the making of such a declaration would affect interests beyond those of Mr Cau, in order to make such a declaration, the Tribunal would need to be satisfied that it was desirable to make such a declaration based on evidence from others that might be affected.[80] No submissions nor evidence of this kind are before the Tribunal.
[80] These may include the Building Services Board of Western Australia and the Australian Institute of Building Surveyors.
The Tribunal makes clear, for completeness, that it has no reason to doubt that Mr Cau is experienced as a building surveyor in Western Australia and in his role with his current employer at the permit authority. However, the process which the Tribunal is required to undertake in order to assess substantial similarity under s 29(1) of the Mutual Recognition Act is essentially one of statutory comparison. As noted throughout this decision, it is not a process by which the individual skills and work experience of the Applicant are taken into account. The Tribunal acknowledges that this has been an ongoing source of frustration for Mr Cau.
DECISION
The Reviewable Decision of the Respondent dated 5 March 2020 is affirmed.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of
L M Gallagher, Member..........................[sgd]..............................................
Associate
Dated: 2 December 2020
Date of hearing: 23 September 2020 Counsel for the Applicant: Stefano Boni Solicitors for the Applicant: Western Legal Pty Ltd Counsel for the Respondent: Glyn Ayres Solicitors for the Respondent: Owen Dixon Chambers West
The T documents in this matter appear in R1 at Tab 2, pages 23 to 94. R1 was filed with the Tribunal on
10 September 2020 and referred to throughout the hearing. However, the page numbering referred to in this decision reflects the original numbering adopted in the copy of the T documents originally filed with the Tribunal on 2 April 2020.
The Tribunal emphasises that the Victorian registration sought by Mr Cau and the Western Australian registrations held by him are identical to that sought and held by Mr Yousefi in Yousefi. The Tribunal has earlier explained why the additional delegations held by Mr Cau through his employment have no bearing on the outcome of his application. Hence, the present matter cannot be distinguished from Yousefi on that basis
(see paragraph [27] above).
0
4
0