Dimitrijevich and Construction Occupations Registrar (ACT) - [2019] AATA 183

Dimitrijevich and Construction Occupations Registrar (ACT) [2019] AATA 183 (29 January 2019)
Division:GENERAL DIVISION
File Number: 2018/1257
Re:Stefan Dimitrijevich
APPLICANT

AndConstruction Occupations Registrar (ACT)
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
Administrative Appeals Tribunal Act 1975 (Cth)
Construction Occupations (Licensing) Act 2004 (ACT)
Legislation Act 2003 (Cth)
Mutual Recognition Act 1992 (Cth)
Mutual Recognition (Australian Capital Territory) Act 1992 (ACT)
Cases
Lawrence v Coal Mining Qualifications Board (NSW) [2004] FCA 30 (30 January 2004)
Sande vRegistrar, Supreme Court of Queensland (1995) 134 ALR 560
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

The applicant holds a Builder – Open - Site Supervisor licence issued by the Queensland Building and Construction Commission. He has sought registration in a number of jurisdictions as builder under the Mutual Recognition Act 1992 (Cth) (the Act).
This matter relates to his registration in the Australian Capital Territory (ACT). The applicant’s registration was refused because a delegate of the Construction Occupations Registrar (Registrar) found there was no equivalent licence in the ACT. The applicant has applied for a review of this decision.
Ultimately, because the Minister has declared that the licence held by the applicant is equivalent to a Builders Licence Class A licence in the ACT,[1] subject to a limitation, and a declaration by the Minister is binding on this Tribunal, the applicant is successful. This is despite cogent arguments by the Registrar that the occupations are not, in fact, equivalent.
[1] All classes only valid for work as a nominee (Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009, cl 6 and Schedule 25, item 11).
JURISDICTION
The Act applies to participating jurisdictions.[2] A participating jurisdiction is defined in as a jurisdiction that has an Act that gives the Commonwealth power to enact the Act or adopts the Act,[3] and under the Mutual Recognition (Australian Capital Territory) Act 1992 the Act applies to the ACT.
[2] Mutual Recognition Act 1992 (Cth) s 5.
[3] Ibid s 43.
An application can be made to this Tribunal for a review of a decision of a local registration authority.[4]
[4] Ibid s 34.
A ’local registration authority’ is as a person or authority in the State having the function of registering persons in connection with their carrying on that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 183
Decision Date: 29 January 2019

CaseChat Overview and Summary

This matter concerned an appeal by Dimitrijevich against a decision of the Construction Occupations Registrar (ACT). The dispute arose from Dimitrijevich's application for a licence, which the Registrar had refused. The core of the disagreement centred on the effect of a Ministerial Declaration concerning the mutual recognition of occupations, specifically in the building and construction industry, and whether the Registrar had the power to impose conditions or assess equivalence when such a declaration was in force.

The court was required to determine whether the Registrar had acted beyond its power in refusing to grant Dimitrijevich a licence, particularly in light of a Ministerial Declaration that purportedly established the equivalence of certain occupations. A key legal issue was whether the existence of such a declaration rendered otiose any further assessment of occupational equivalence by the Tribunal, as suggested by previous Federal Court authority. The court also considered the Registrar's arguments regarding the practical implications of granting a licence under the declaration, including concerns about the applicant's qualifications and the nature of the equivalent licence in Queensland.

The court applied the principle established in *Lawrence v Coal Mining Qualifications Board (NSW)*, which held that where a Ministerial declaration is made under the relevant legislation, a tribunal is not obliged to conduct its own review of occupational equivalence, as the declaration renders the issue moot. The court noted that the Registrar acknowledged acting beyond its power in its submissions. However, the court declined to make an order for costs against the Registrar, finding that the Registrar had not acted unreasonably.

The decision under review was set aside and remitted to the Registrar for reconsideration. The Registrar was directed to give effect to the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 in its reconsideration of Dimitrijevich's application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In these circumstances, I do not consider the Registrar has acted unreasonably, and decline to make an order for costs. DECISION The decision under review is set aside and remitted to the Registrar for reconsideration in accordance with the direction that it give effect to the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009.

Ratio Decidendi

Legal Principle Established

Justice Nicholson of the Federal Court in Lawrence v Coal Mining Qualifications Board (NSW) stated:[13] In the course or oral submission it was submitted for the appellant that … the Tribunal was obliged not only to consider the Ministerial declaration but also examine the evidentiary matrix concerning the activities in his particular occupation in order to form its view about equivalence. … When a Ministerial declaration is made there is no purpose in a tribunal acting pursuant to s 31 to carry out a review on the issue of equivalence. (emphasis added)……. The making of a Ministerial declaration pursuant to s 32 renders otiose the same issue of equivalence arising in s 31. [13] [2004] FCA 37 (30 January 2004) [40] – [41]. The Registrar relies on Sande v Registrar, Supreme Court of Queensland, in which was said that the Act:[14]… should be applied in a practical, commonsense sense way, regard being had to the substance of the matter and to the substantial equivalence of occupations. The spirit of the legislation is to eliminate such occupational problems between the states.[14] (1996) 134 ALR 560, 565. Sande has limited application in this case as these remarks were in the context of an assessment of the equivalence of occupations. In this case there is a Declaration in force in relation to the occupation and, as noted in Lawrence, there is no purpose in the Tribunal carrying out a review of equivalence of the occupations. APPLICANT’S ARGUMENTS The applicant states that his application was submitted in the correct form, and that should the Tribunal assess the equivalence of the occupation it will be acting beyond the power conferred on it as the Declaration will prevail regardless of any such assessment. The applicant identifies a number of appeal grounds that relate to errors that he identifies in the decision. However, as the Tribunal conducts a merits review de novo, it is not concerned with identifying errors in the decision but rather looks at the decision afresh. RESPONDENT’S ARGUMENTS The Registrar acknowledges it acted beyond power and the better or preferable decision is for the registration to be granted.[15][15] Respondent’s Statement of Facts, Issues and Contentions [95]. It is argued that granting registration in the form allowed by the Declaration is problematic because the licence that would be granted would allow the applicant to do work the Registrar states he is not qualified to do. In particular:(a)The Site Supervisor licence issued in Queensland does not allow the applicant to undertake building work. It is a class of licence that allows supervision of building work that is carried out by others;(b)The ACT does not have an equivalent licence, or indeed an equivalent licensing scheme. The ACT does not license trades such as plumbers or electricians where these trades are supervised by a licensed individual;(c)The applicant does not have the minimum level of study required for the licence, and has only completed units towards the minimum level of study. To register as Class A Builder in the ACT a person must have tertiary qualifications in building and not less than two years full time building work experience, with at least one year of experience after achieving the relevant qualification; (d)The Construction Occupations (Licensing) Act 2004 (ACT) (the ACT Act), in particular s 28 of that Act, assumes that a ‘nominee’ is licensed in the relevant construction occupation; and (e)The applicant would not be able to undertake building work in Queensland with his current licence, but the licence issued under the Declaration would allow him to have an effectively unrestricted building licence in the ACT.