Dimitrijevich and Commissioner for Fair Trading (NSW)

[2019] AATA 182

Dimitrijevich and Commissioner for Fair Trading (NSW) [2019] AATA 182 (29 January 2019)

Division:GENERAL DIVISION

File Number:           2018/1328

Re:Stefan Dimitrijevich

APPLICANT

AndCommissioner for Fair Trading (NSW)

RESPONDENT

DECISION

Tribunal:Member K Millar

Date:29 January 2019

Place:Adelaide

The decision under review is set aside and remitted to the respondent for reconsideration in accordance with the direction that it give effect to the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009. 

...................[Sgnd].............................

Member K Millar

Catchwords

MUTUAL RECOGNITION OF OCCUPATIONS – Building and Construction – Equivalence of occupations – Whether Tribunal has power to consider equivalence of occupations or impose conditions on a licence where there is a declaration by Ministers – Costs – Whether respondent has acted unreasonably – Decision under review set aside.

Legislation

Acts Interpretation Act 1901 (Cth)

Legislation Act 2003 (Cth)

Mutual Recognition Act 1992 (Cth)

Mutual Recognition (New South Wales) Act 1992 (NSW)

Cases

Kaschula and Director-General, Department of Services, Technology and Administration (NSW Fair Trading) [2011] AATA 781

Medical Board of Queensland v Renton [2006] FCR 947

Secondary Materials

Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009

REASONS FOR DECISION

Member K Millar

29 January 2019

BACKGROUND

1. The applicant holds a Builder – Open licence, with a licence grade of site supervisor in Queensland (the Queensland licence).  He has sought registration in three other jurisdictions under the Mutual Recognition Act 1992 (Cth) (the Act). This application relates to his registration as a Qualified Supervisor Certificate – General Building Work in New South Wales (the NSW licence).

2. The Commissioner for Fair Trading, Department of Service and Innovation granted the applicant a Qualified Supervisor Certificate – Builder, with the condition ‘not to be the Nominated Supervisor for a Contractor, Only as the Employee of a Contractor Licence Holder’.  The Commissioner submits that the occupations are not equivalent without the additional conditions imposed.

3. The applicant considers that this licence should be granted without additional conditions, and has applied for a review of this decision. 

   JURISDICTION

4. The Act applies to States that are participating jurisdictions.[1] Under s 43 of the Act and the Mutual Recognition (New South Wales) Act 1992 (NSW) (the NSW Act), the Act applies to New South Wales.

   [1] Mutual Recognition Act 1992 (Cth) s 5.

5. An application can be made to this tribunal for a review of a decision of a local registration authority.[2]

   [2] Ibid s 34.

6. The term ’local registration authority‘ is defined as a 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.[3]  The Commissioner is responsible for registering builders in New South Wales. 

   [3] Ibid s 4.

   LEGISLATION

7. The object of the Act is to promote the goal of freedom of movement of goods and service providers in a national market in Australia.[4] 

   [4] Ibid s 3.

8. As it applies in this case, the Act allows a person who is registered for a particular occupation in one state or territory to practise that occupation in another state or territory after notifying the local registration authority.  The local registration authority must grant registration unless it postpones or refuses to grant registration.[5] 

   [5] Ibid s 21.

9. The local registration authority may refuse to grant registration if the authority decides that the occupation is not an equivalent occupation and equivalence cannot be achieved by imposing conditions.[6]

   [6] Ibid s 23(1)(c).

10. A Minister from each of two or more state or territories may jointly declare, by notice in the Gazette that specified occupations are equivalent, and may specify conditions that will achieve equivalence.[7]  A declaration may be rescinded or amended in the same way.  The appropriate local registration authority is to give effect to the declaration.[8]

    [7] Ibid s 32(1).

    [8] Ibid s32(4).

11. Division 4 of Part 3 of the Act sets out how the equivalence of occupations is to be determined. Section 29 states that an occupation for which a person in one State can be registered is taken to be equivalent to an occupation for which a person may be registered in a second state if the activities authorised to be carried out under each registration are substantially the same, whether or not this is achieved by the imposition of conditions.  It allows for conditions to be imposed on registration so as to achieve equivalence between occupations in different States.  Section 29(3) states this section has effect subject to any relevant declarations in force under this Division. 

12. Section 30 states that the Part is to be given effect in accordance with relevant declarations made under the Division regarding equivalent occupation, and further states that if a declaration made by the Tribunal and a declaration made by Ministers is inconsistent, the ministerial declaration prevails. 

13. A declaration has been made about builders in the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (the Declaration).

14. The Declaration sets out equivalent occupations for builders at Schedule 25.  Item 11 of Schedule 25 addresses a person who holds a Queensland Builder – Open Licence - Site Supervisor grade licence.  Column B specifies that this is equivalent to Qualified Supervisor Certificate – General Building Work in New South Wales.

15. Clauses 6 and 7 of the Declaration state:

    6.              EQUIVALENT OCCUPATIONS SHOTFIRERS AND PYROTECHNICIANS, PEST AND WEED CONTROLLERS, BUILDING OCCUPATIONS, BUILDERS (2006 UPDATE)

    (1)   The occupation which may be carried on only by a person granted a registration, in the jurisdiction, described in Column A of the Schedule (first jurisdiction) is equivalent to the occupation which may be carried on only by a person granted a registration, in a jurisdiction, described in the same row of the Schedule (second jurisdiction), subject to any conditions, limitations or restrictions indicated in the Schedule.

    7.              DECLARATION NOT TO LIMIT POWERS OF A REGISTRATION AUTHORITY

    (1) Nothing in this Part is intended to affect the powers, under the Mutual Recognition Act 1992, of a registration authority in a second jurisdiction to impose conditions on a registration, provided that the conditions imposed do not relate to the activities authorised to be carried out under the registration unless such conditions applied to the person's registration in the first jurisdiction.

16. The notes that follow cl 7 are:

    Notes:

    The table at the attached Schedule depicts the registration outcome for any person already licensed in an occupation in a particular jurisdiction (column A of each row) should they seek to be licensed in an occupation in a second jurisdiction (potentially in any other column in the same row). Registration shall be granted by the second jurisdiction in the terms specified provided the applicant is already registered in the equivalent occupation in the first jurisdiction.

    If a licence is not included in the declaration, or if the licence outcome depicted on the Schedule is the statement ‘No equivalent declared’, the decision on licence recognition will be made by the relevant registration authority in accordance with the other provisions of the Mutual Recognition Act 1992.

    CONSIDERATION

17. The central issue in this case is whether, when there is a declaration in place, the Commissioner can impose conditions on a licence that do not appear in the declaration.

18. As set out in the related matters, as a Ministerial Declaration prevails under s 30 of the Act. Under s 32 of the Act, a local registration authority is to give effect to the declaration.

19. The Commissioner contends that it can impose additional conditions that do not appear in the Schedule to achieve equivalence. 

20. An object of the Act is to promote the freedom of movement of service providers in a national market.   It is consistent with that object that people can readily determine whether a licence for an occupation in one state or territory will entitled them to practise that occupation in another state or territory without having to resort to an individual assessment in each case.  This has been achieved by the Declaration by the Ministers.  In forming a view as to the content of the Declaration and the equivalence of occupations, Ministers have the benefit of advice of specialist bodies such as the Commissioner. 

21. The object of the Act must be kept in mind in looking at the meaning of cl 6 and 7 of the Declaration.[9] The note contained in the Declaration forms part of the Declaration,[10]  and assists in giving meaning to these clauses.

    [9] Acts Interpretation Act 1901 (Cth) s 15AA; Legislation Act 2003 (Cth) s 13.

    [10] Legislation Act 2003 (Cth) s 13; Acts Interpretation Act 1901 (Cth) s 13.

22. Clause 6 of the Declaration states that the occupations are equivalent if they appear in the Schedule, and sets out that the conditions, limitations or restrictions are those specified in the Schedule.  A plain reading of this clause is that conditions, limitations or restrictions that apply to all those who hold a particular licence in the first jurisdiction will be specified in the Schedule. 

23. The Commissioner submits that cl 7 of the Schedule allows for the imposition of additional conditions on the applicant’s licence.  Clause 7 allows a person whose ability to practise a profession is subject to individual conditions, limitations or restrictions in the first jurisdiction, to have the same conditions imposed in the second jurisdiction.   It does not allow conditions that were not in effect in the first state to be imposed on a licence in the second state. 

24. For example, if an individual person has had a restricted licence in one state following disciplinary proceedings against that person, it would allow the same conditions to be placed on the licence in the second state. It does not allow for a local registration authority to conduct a new assessment of whether the occupations are equivalent and impose additional conditions according to that assessment. 

25. The applicant does not have any additional conditions imposed on his Queensland licence, and it follows he cannot have additional conditions imposed on the licence in New South Wales. 

26. The Commissioner refers to Kaschula and Director-General, department of Services, technology and Administration (NSW Fair Trading)[11] and Medical Board of Queensland v Renton[12]. However, both of these cases involve an assessment of the equivalence of occupations where the licence held by the person did not have an equivalent specified in a declaration, and have limited application to the facts of this case where there is a declaration in place. 

    [11] [2011] AATA 781.

    [12] [2006] FCR 947.

27. The Commissioner has put forward cogent arguments about why the occupations are not, in fact, equivalent.  If this is the case, it is open to the Minster to amend or rescind the Declaration.[13]

    [13] Mutual Recognition Act 1992 (Cth) s 32.

    COSTS

28. Section 35 of the Act allows the Tribunal to order a party in proceedings before it to pay costs if the party has acted unreasonably.  The applicant seeks costs, in which case it must be shown that the Commissioner has acted unreasonably. 

29. The applicant is self-represented, but is legally qualified and has provided a copy of his admission to the roll of practitioners.

30. The applicant submits the Commissioner has not acted in accordance with the Model Litigant Guidelines, in particular that there was no alternative dispute resolution process, and that the Commissioner sought and was granted additional time to comply with the directions.

31. The applicant submits the Commissioner was not willing to undertake alternative dispute resolution.  I do not accept this was the case.   A hearing date for this matter was available before a conciliation date and on this being put to the applicant he chose to accept the earlier hearing date.  

32. The Commissioner sought and was granted further time to comply with directions.  The Commissioner complied with the date as extended.  The applicant then also sought further time to comply with directions, and was granted this additional time without any objection from the Commissioner.  Seeking and being granted further time is not unreasonable.

33. The applicant also submits his application for a licence was dealt with in an arbitrary manner.  The Commissioner has a legitimate interest in ensuring public safety where a person is conducting an inherently dangerous activity such as building.  It is proper for the Commissioner to carefully consider the registration of building professionals.  While the proper course, if there is doubt about the equivalence of the occupations, is for the Minister to vary or rescind the Declaration, it is not unreasonable for the Commissioner to carefully consider the issuing of licences for building work.

34. As the Commissioner has not acted unreasonably, the application for costs is declined. 

    DECISION

35. The decision under review is set aside and remitted to the Commissioner for reconsideration in accordance with the direction that it give effect to the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009. 

36.      

37.     I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for the decision herein of Member K Millar.

...................[Sgnd].......................

Administrative Assistant Legal
Dated: 29 January 2019

Date of hearing:	30 November 2018
Applicant:	Self-represented
Advocate for the Respondent:	Ms A Kumar, Commissioner for Fair Trading (NSW)