Goel and Building Services Board (WA)

[2021] AATA 171

Goel and Building Services Board (WA) [2021] AATA 171 (10 February 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1565

Re:Sanjay Goel

APPLICANT

AndBuilding Services Board (WA)

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:10 February 2021

Place:Sydney

The decision under review is affirmed.

.............................[sgd]...........................................

Senior Member M Griffin QC

CATCHWORDS

MUTUAL RECOGNITION – equivalence of occupations – domestic building work – imposition of conditions – application of Mutual Recognition Act 1992 (Cth) – WA registration – Victoria registration – decision under review affirmed

LEGISLATION

Building Contracts Act 1995 (Vic)

Building Regulations 2018 (Vic)

Building Services (Registration) Act 2011(WA)

Mutual Recognition Act 1992(Cth)

REASONS FOR DECISION

Senior Member M Griffin QC

10 February 2021

BACKGROUND

1. On 11 December 2019, the Applicant submitted a written notice to the Respondent of equivalent occupation – Building, Painting or Survey pursuant to the provisions of the Mutual Recognition Act 1992 (Cth) (MR Act) to be registered as a Building Services Practitioner under the Building Services (Registration) Act 2011 (WA) (BSR Act).

2. The Applicant was registered in Victoria as a builder and was seeking registration as a building practitioner in Western Australia on the basis that he had a relevant occupation (or equivalent) occupation in other states including New South Wales and Queensland. The Queensland licence was not subject to any conditions and the New South Wales licence was subject to a condition that limited building to “not to exceed three storeys in height”. At the hearing, the Applicant submitted without objection, that the New South Wales licence was now unlimited as to conditions.

3. The Applicant was registered in Victoria as a domestic builder (unlimited), and it was that registration which was assessed by the Respondent.

4. On 10 January 2020, the Respondent granted the Applicant registration as a Building Services Practitioner and subject to the condition “Restricted To: BCA [Building Code of Australia] 1(a), 2, 4 and 10” (original decision).

5. The Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review and, following a decision to remit the original decision of the Respondent for reconsideration, the Respondent set aside its original decision, granted the Applicant registration as a building contractor (individual) and building practitioner (individual) under the BSR Act subject, however, to a restriction of the BCA 1(a), 2, 4 and 10 (decision under review).

   RELEVANT LEGISLATION AND ANALYSIS

6. The means by which the Respondent registered the Applicant in Western Australia was pursuant to the provisions of the Commonwealth legislation, the MR Act. That legislation provides for the registration of certain categories of suitably qualified people in states other than where the primary registration or licence is located. In this case, the Applicant was relying upon his Victorian building licence to support an application in Western Australia.

7. The Applicant argued that the Victorian Building Authority (VBA) permitted his registration.

8. The VBA website referred to by the Applicant in submissions at the hearing and provided during the course of the hearing refers to various “building classes” which are building classifications under the National Construction Code and referred to as class 1 through to class 10.

9. During the hearing, the Applicant abandoned an argument that he should be registered under class 3 but pursued an argument that he was entitled to build, in Western Australia, class 1(b) buildings which that website appears to regard as domestic building work, specifically “a boarding house, guest house or hostel with a floor area less than 300 m²”. The Applicant then referred to part of the website which commences “What is domestic building work?”.

10. The Commonwealth legislation allows recognition among states of similar qualifications. The purpose of the Commonwealth legislation is to equip the prospective licensee with as close as possible the licence to that which he holds. In this case, the licence which is held is in Victoria.

11. It is to be noted that the Commonwealth legislation does not attempt to create an absolute reproduction of the original (Victorian) licence. Its purpose is to achieve as much as possible an equivalent licence.

12. The limitations to the Applicant’s Victorian licence are not to be found in the VBA website but rather, by reference to the legislation and regulations which regulate the licensing of domestic builders in Victoria.

13. Pursuant to schedule 12 of the Building Regulations 2018 (Vic), the Applicant is entitled to carry out all components of domestic building work in Victoria. “Domestic building work” is defined in section 5 of the Domestic Building Contracts Act 1995 (Vic). There are, however, limitations to the Applicant’s right to construct buildings in Victoria.

14. Furthermore, the definition of “home”, in that legislation, is directly related to the domestic building work, in the Tribunal’s opinion.

15. The definition of “home” provides further limitation to the scope of domestic building as the licence is applicable to the Applicant.

16. Thus, the Applicant, because of those limitations can, in a general sense, only build domestic buildings which do not include hotels, motels, for example, to which class 1(b) refers. There is a fundamental equivalence, therefore, between the Applicant’s Victorian registration and the registration granted by the Respondent in Western Australia, by the exclusion of classes 1(b) and 3 in the Western Australian licence.

17. Although it might be the case that there are some very slight variations between the provisions of the Victorian licence and that which is apprehended by the BCA, nonetheless, in the Tribunal’s opinion, those differences are, in a practical sense, inconsequential.

18. In the Tribunal’s opinion, equivalence is achieved in Western Australia by limiting the Applicant’s Western Australian licence to classes 1(a), 2, 4 and 10 of the BCA. By that limitation, there is as near as possible an equivalence with the present Victorian licence which the Applicant possesses.

    DECISION

19. The decision under review is affirmed.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

.............................[sgd]...........................................

Associate

Dated: 10 February 2021

Date of hearing:	5 November 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Mr J Derby, Department of Mines, Industry Regulation and Safety