Background
Background to the litigation
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
Decision
Reasons for decision
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].
