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

1. 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).

2. 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.

3. 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

4. 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.

5. An application can be made to this Tribunal for a review of a decision of a local registration authority.[4]

   [4] Ibid s 34.

6. 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 occupation in the State.[5]  A ’State‘ includes the ACT, and the Registrar is responsible for the registration of builders in the ACT. 

   [5] Ibid s 4.

   LEGISLATION

7. A person who is registered in one State may lodge a written notice with the local registration authority of a second State seeking registration for the equivalent occupation.[6] The notice must meet the requirements set out in s 19(2).  The local registration authority must grant registration unless it postpones or refuses to grant registration.[7] 

   [6] Ibid s19(1).

   [7] Ibid s 21.

8. As it applies in this case, 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.[8]

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

9. Division 4 of Part 3 of the Act sets out how to decide if occupations are equivalent. 

10. An occupation in one state is taken to be equivalent to an occupation in another 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.[9] It allows for conditions to be imposed on registration so as to achieve equivalence between occupations in different States. Of particular significance on this case is that s 29(3) states these provisions have effect subject to any relevant declarations in force under this Division. 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.

    [9] Ibid s 29.

11. Ministers from 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.[10]  A declaration may be rescinded or amended the same way.[11]  The appropriate local registration authority is to give effect to the declaration.[12]

    [10] Ibid s 32(1).

    [11] Ibid s 32(2).

    [12] Ibid s 32(4).

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

13. 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.

14. 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.

15. 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. Column H specifies that this is equivalent to an ACT Builders Licence Class A – BCA – All Classes. It has the condition ’only valid for work as a nominee.’

    RELEVANT CASELAW

16. 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].

17. 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.

18. 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

19. 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.   

20. 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

21. 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].

22. 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.

23. The respondent argues that the condition imposed in the Declaration that the licence of ’only valid for work as a nominee’ is liable to create confusion within the building industry and result in a potential public safety risk.    The technical aspects of registration were supported by a statutory declaration and oral evidence from the Registrar in the ACT.   

24. The Registrar submits there are two ways in which this condition could be interpreted, and as a result the Tribunal should give meaning to the condition.  It invites the Tribunal to make an order to specify the meaning and suggests additional conditions that could be imposed to achieve this clarity. It is submitted that this is required for the resolution of ambiguity and is not an attempt to evaluate equivalence under s 31(1) of the Act, which would be inconsistent with Lawrence. 

    CONSIDERATION

25. Under the Act, a notice in the required form may only result in one of three outcomes: the person is registered in the equivalent occupation in the second State; the grant of registration is postponed; or, the registration is refused.  In this case the registration was refused. 

26. The Act provides three grounds for refusing a registration.  As it is not contended that the applicant provided misleading information or has not provided the required information, the only ground on which the applicant’s registration could be refused is that the occupation in which registration is sought is not an equivalent occupation. 

27. Division 4 of Part 3 sets out how to determine if an occupation is equivalent to another occupation.  A declaration by a Minister is to be given effect by the local registration authority.  A declaration by ministers prevails over any declaration made by the Tribunal.

28. There is a relevant declaration that sets out the equivalent occupation.  In this case a Builder – Open (Site Supervisor) is declared to be equivalent to a Builders Licence Class A BCA – All classes - only for work as a nominee.  The condition ’only for work as a nominee‘ is imposed by the Declaration.   

29. There is weight in the respondent’s argument that the licences are not in fact equivalent, and that the applicant does not have the experience and expertise required for the licence he would be granted in the ACT given the definition of “nominee” in the ACT Act.

30. The decision under review, however, is a decision to refuse the application’s registration in the ACT.  It is not a decision regarding the interpretation of any conditions placed on a registration as this registration has been refused.   To this extent, the Registrar seeks review of a decision that has not yet been made.   

31. The Registrar concedes that the decision it made was incorrect. It is not necessary or appropriate for the Tribunal to enter into a process of either clarifying or adding to a condition that the Minister sees fit to impose.   If the Registrar seeks to impose additional conditions, the Minister may be approached to amend or rescind the Declaration by notice in the Gazette in accordance with s 32(2) of the Act.

32. The Tribunal finds that the Declaration sets out the equivalence of occupations, and that a Builder – Open (Site Supervisor) is declared to be equivalent to a Builders Licence Class A BCA – All classes - only for work as a nominee.

33. It follows that the Registrar incorrectly refused the registration of the applicant.  As the equivalence of occupations is a matter for the Ministers as specified in the Declaration, and the Registrar has foreshadowed changes to the Declaration, the appropriate course is to set aside the decision and return it for reconsideration in accordance with the Declaration. 

    COSTS

34. The applicant seeks costs against the Registrar.  The Tribunal may order a party in proceedings before it to pay costs under s 35 of the Act if the party has acted unreasonably.

35. In Wright v Nurses Board of the Australian Capital Territory[16] costs were awarded under the Act in circumstances where the applicant was refused registration as a mental health nurse on the purported basis that the applicant had not completed specialist training required of mental health nurses.  At the hearing the respondent conceded that a registered nurse was equivalent to a mental health nurse, but disputed that the applicant’s profession was an ’occupation‘ as defined by the Act and argued that therefore it was not covered by the ambit of the Act.  It was found the case the applicant came to the Tribunal to meet was conceded at hearing, but he was then faced with a technical argument which was not previously put to him.

    [16] [1996] AATA 196.

36. The applicant submits the circumstances are similar in his case as the Registrar has conceded that the decision to refuse his registration was incorrect and the correct and preferable decision is to grant his registration.   The Registrar states the issue of registration was conceded early in the process and the model litigant rules have been followed.  They deny they have changed their positon and submit Wright can be distinguished because in that matter the respondent changed position at the hearing. 

37. The applicant states that the Registrar changed the reasons for its decision on eight occasions. He states that in an email dated 5 January 2018 he was advised to withdraw his application, then on 15 February 2018 he received a refusal to issue the registration. On the same day he said there was a notice of a decision under s 22(1)(b) of the Act but this provision does not concern refusal. On 15 February 2018, he received a refusal stating his registration was refused under s 23(1)(c).

38. I do not consider one enquiry as to whether he wished to withdraw his application, or the communication of this outcome on several occasions unreasonable. In this case, the Registrar has acted consistently with the assessment that the activities authorised under the licence held by the applicant are not equivalent to the activities authorised by the licence in the ACT. This assessment is not without merit.  The qualifications required for a Class A Builder in the ACT, being tertiary qualifications and at least two years of experience, and the qualifications held by the applicant being four units of competency towards an incomplete Advanced Diploma of Building and Construction (Management) are significantly different.  The Registrar submits that the limitation “only valid for work as a nominee” does not practically restrict the type of building work the applicant could undertake. 

39. The Registrar is a specialist in construction occupations, and has an interest in public safety of building work, where the risks to public safety if work is not adequately performed are high.  Where public safety may be at risk, an examination of a person’s qualifications and active questioning of the equivalence of occupations is not unreasonable. 

40. The applicant also submits that the Registrar acted unreasonably, and with a disregard in the disparity between the applicant’s and the Registrar’s financial resources by pursuing this matter to hearing. He submits this matter should have been determined on the papers without the need for a hearing. The circumstances in which a hearing can be dispensed with are set out in s 34J of the AAT Act and require a determination by the Tribunal that the issues can be adequately determined on the papers as well as the consent of the parties. In this case, the Tribunal did not make a determination that the review of the decision can adequately be determined on the papers, and the question of whether the parties consented to a hearing on the papers did not arise. This submission has no merit.

41. While the Registrar has ultimately been unsuccessful, the case was conducted in a manner consistent with the Registrar’s assessment that the applicant did not have equivalent qualifications to undertake building work. 

42. In these circumstances, I do not consider the Registrar has acted unreasonably, and decline to make an order for costs. 

    DECISION

43. 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. 

I certify that the preceding forty three (43) 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:	3 September 2018
Solicitor for the Applicant:	Ms S Heidenreich
Advocate for the Respondent:	Ms K Musgrove
Solicitors for the Respondent:	ACT Government Solicitor