Dimitrijevich and Commissioner for Fair Trading (SA)

[2019] AATA 185

Dimitrijevich and Commissioner for Fair Trading (SA) [2019] AATA 185 (29 January 2019)

Division:GENERAL DIVISION

File Number:          2018/1599

Re:Stefan Dimitrijevich

APPLICANT

AndCommissioner for Fair Trading (SA)

RESPONDENT

Decision

Tribunal:Member K Millar

Date29 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 – Ministerial declarations – Equivalence of occupations – Imposition of conditions on a licence – Building and Construction – determination of the equivalence of occupations when a Ministerial declaration has been made – 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 (South Australia) Act 1993 (SA)

Cases

Wright v Nurses Board of the Australian Capital Territory [1996] AATA 196

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 Building Work Supervisor – Any Building Work – BCA – All Classes in South Australia (the South Australian licence)

2. The Commissioner for Consumer Affairs in South Australia granted this licence subject to certain conditions.  The Commissioner submits that the occupations are not equivalent without the additional conditions imposed.  The applicant considers that this licence should be granted without additional conditions, and has applied for a review of this decision. 

3. As the Minister has made a declaration that the Queensland licence is equivalent to the South Australian licence, and that declaration is binding on the Tribunal, the applicant is successful.  If the Minister no longer considers the occupations are equivalent, the Minister can vary or rescind the Declaration. 

   JURISDICTION

4. The Act applies to States that are participating jurisdictions.[1] Under s 43 of the Act and the Mutual Recognition (South Australia) Act 1993 (SA) the Act applies to South Australia.

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

5. Under s 34 of the Act, an application can be made to this Tribunal for a review of a decision of a local registration authority.

6. The term ’local registration authority‘ is defined as 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.[2]  The Commissioner for Fair Trading is responsible for registering builders in South Australia. 

   [2] 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.[3] 

   [3] 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.[4] 

   [4] 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.[5]

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

10. A Minister from each of two or more states or territories may jointly declare, by notice in the Gazette that specified occupations are equivalent, and may specify conditions that will achieve equivalence.[6]  A declaration may be rescinded or amended the same way.  The appropriate local registration authority is to give effect to the declaration.[7]

    [6] Ibid s 32(1).

    [7] Ibid s 32(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.  Subsection 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 occupations, and that if a declaration made by the Tribunal and the Ministers are 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 F specifies that this is equivalent to Building Work Supervisors registration – Any Building Work BCA – All classes.

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.

17. A local registration authority is to give effect to the declaration.[8] 

    [8] Ibid s 32.

    CONSIDERATION

18. 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. What is contended is that the Commissioner can impose additional conditions that do not appear in the Schedule to achieve equivalence. 

19. 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 in 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. 

20. 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.

21. Clause 6 of the Declaration states that the occupations are equivalent if they appear in the Schedule.  Clause 6 also states conditions, limitation or restrictions are 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. 

22. The Commissioner submits that cl 7 of the Schedule allows the imposition of additional conditions on the applicant’s licence.  This 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. 

23. For example, if an individual has had a restricted licence in one state following disciplinary proceedings against the 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. 

24. 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 South Australia. 

25. It is not consistent with the object of the Act to enable free movement of service providers for a local registration authority to assess each individual application to make a new determination on whether the occupation is equivalent where the occupation is specified in the Declaration. To do so would mean a local registration authority could effectively override a Declaration by the Ministers. The interpretation contended by the Commissioner is inconsistent with s 32(4) of the Act, which requires a local registration authority to give effect to a declaration.

26. The Commissioner has put forward arguments about why the occupations are not, in fact, equivalent.  According to the Commissioner, building work supervisors can be the registered building work supervisor without being an officer or employee of the contractor, but in Queensland, a person cannot perform supervisory services and must be an officer or employee of the building work contractor.  The Commissioner submits that the qualifications and experience required for a person to be licensed in South Australia are greater than that required in Queensland. 

27. As there is a declaration made by the Ministers, the Tribunal is bound by the declaration and cannot undertake an assessment of the equivalence of the occupations.  It is open to the Minster to amend or rescind the Declaration if it is considered that the occupations are not equivalent.[11]

    [11] 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. 

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

30. The applicant is self-represented, but is legally qualified and is admitted to the Supreme Court of Victoria. He submits that as the Commissioner referred to the Declaration rather than to a section of the Act he has had to obtain legal advice as he did not know under what authority the decision was made.  I do not find this submission plausible given his legal qualifications and his lengthy submissions showing his extensive knowledge of the legislation. 

31. In regard to the list of authorities, the applicant also failed to provide a list of authorities, and can hardly rely on this as unreasonable in those circumstances.  There were no cases relied on by the Commissioner of which he was unaware, and he did not seek further time to respond to any aspects of the Commissioner’s case.  

32. The applicant states he was not aware the Commissioner was going to rely on cl 7 until he received the statement of facts, issues and contentions.  The applicant received this well in advance of the hearing and was given additional time to provide any further response.  I do not consider this unreasonable.  This distinguishes this matter form Wright v Nurses Board of the Australian Capital Territory,[12] in which the respondent changed its position at the hearing. 

    [12] [1996] AATA 196.

33. The Commissioner sought and was granted further time to comply with directions.  The applicant then also sought further time to comply with directions, and was granted this additional time without any objection from the Commissioner.

34. The applicant submits the Commissioner was not willing to undertake alternative dispute resolution and cites an email in which the Commissioner’s representative notes the applicant had previously declined an offer of conciliation and at that time the Commissioner had indicated it was willing to attend conciliation. It is stated the Commissioner is not aware of what has changed since then and is concerned that conciliation may not be a useful process unless there has been a material change in the applicant’s position.  It notes the parties are currently far apart, and that it may be useful for the applicant to identify why he has changed his position and the parameters of a potential resolution.

35. This does not itself show unwillingness to enter into an alternative dispute resolution process, or that the Commissioner has acted unreasonably.  Ultimately this discussion was a moot point as a hearing date was available before a conciliation date and on this being put to the applicant he chose to accept the earlier hearing date.  

36. While the Commissioner’s submissions about the ability to impose additional conditions on the applicant’s licence have not been accepted, the Commissioner had cogent reasons for seeking to apply these conditions.  These reasons relate to the Commissioner’s view of the licence held by the applicant, and not to the applicant personally. 

37. As I am not satisfied the Commissioner has acted unreasonably, the application for costs is declined.     

    DECISION

38. 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. 

I certify that the preceding thirty eight (38) 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:	Mr W Ambrose
Solicitors for the Respondent:	Crown Solicitors Office