Hanna and Building Practitioners Board
[2017] AATA 481
•13 April 2017
Hanna and Building Practitioners Board [2017] AATA 481 (13 April 2017)
Division: GENERAL DIVISION
File Number: 2016/1929
Re: MOUAYED HANNA
APPLICANT
And:BUILDING PRACTITIONERS BOARD
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 13 April 2017
Place Melbourne
The Tribunal decides to:
affirm the decision of the respondent dated 8 February 2016 to refuse the registration of the applicant in the category of Domestic Builder Limited.
…[sgd] S A Forgie……….
Deputy President
CATCHWORDS – BUILDING PRACTITIONERS – registration refused by Building Practitioners Board of Victoria on basis the applicant failed to satisfy the Board that he was of good character for the purposes of s 170(1)(c) of the Building Act 1993 – decision affirmed
LEGISLATION
Acts Interpretation Act 1901 s 13
Administrative Appeals Tribunal Act 1975 ss 25, 37
Building Act 1993 (Vic) ss 1, 4, 169, 170, 171, 172
Legal Practice Act 2003 (WA) ss 27, 28, 161
Migration Act 1958
Mutual Recognition Act 1992 ss 19, 20, 22, 23, 26, 27
Mutual Recognition (Victoria) Act 1998
Mutual Recognition (Western Australia) Act 2001 ss 3, 4
Taxation Administration Act 1953 s 14ZZKBuilding Regulations 2006 r 1503, and Sch 7
Solicitors’ Admission Rules (Qld) 1968 r 76QCASES
Agapis v A Deputy President of the Administrative Appeals Tribunal at Perth and Ors [2015] HCA Trans 246 (23 September 2015)
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422; 139 ALR 84
Jones v Dunkel (1959) 101 CLR 298
Re Andriotis and Building Practitioners Board [2017] AATA 378
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs, New South Wales (1978) 1 ALD 167
Re Davis (1947) 75 CLR 409
Re Glen Charles Gibbs and Minister for Immigration and Ethnic Affairs [1986] AATA 161
Re Petroulias [2004] QCA 261; [2005] 1 Qd R 643; (2004) 208 ALR 552Re Tkacz; Ex parte Tkacz [2006] WASC 315
REASONS FOR DECISION
Mr Hanna was registered as a bricklayer in New South Wales (NSW) and wanted to be registered as a building practitioner in Victoria in the category of Domestic Builder – Limited (Brickwork) (Class H). In order to achieve that end, he lodged a notice with the Building Practitioners Board (BPB) in Victoria under s 19 of the Mutual Recognition Act 1992 (MR Act). An initial issue arose as to whether the BPB had properly postponed registration in accordance with s 21(3) of the MR Act and whether it had made its decision refusing registration within the maximum seven month period permitted by s 21(3) and s 22(3). I agree with the concession made by Mr Gray solicitor appearing for Mr Hanna that the BPB had properly postponed registration in accordance with s 21(3) and that it had made its decision refusing registration within the period permitted by s 22(3).
The second issue arising in this case is whether Mr Hanna’s registration in NSW entitled him to be registered in Victoria without more or whether the BPB could assess whether he was a person of good character within the meaning of s 170(1)(c) of the Building Act 1993 (Building Act) before deciding whether or not to grant or refuse Mr Hanna’s registration. I have decided that the BPB could make that assessment.
BACKGROUND
Mr Hanna granted New South Wales Individual Contractor Licence – Bricklaying
On 17 August 2015, Mr Hanna lodged an application with the relevant authority in NSW for an Individual Contractor Licence for a period of one year in the category of Bricklaying. Mr Hanna was required to set out details of his practical experience as well as his complete employment history. In response, he stated that his period of experience had been from July 2012 to the current date. He named Mr Alex Dimopoulos of Oxford Builders as his employer or the contractor who had engaged him in the work of a bricklayer. Mr Hanna signed the form declaring that the statements he had made in his application were true and correct.[1] He attached a copy of a document headed “Institute of Training” and certifying that Mr Hanna had, on 12 August 2015, fulfilled the requirements for a Certificate III in Bricklaying/Blocklaying.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents);
Mr Hanna sought registration in Victoria under the MR Act
On 17 September 2015, Mr Hanna lodged with the BPB a notice under s 19 of the MR Act seeking registration as a building practitioner in Victoria in the category of Domestic Builder – Limited (Brickwork) (Class H) (Section 19 Notice). Mr Hanna stated that he had worked in the category in an equivalent position outside Victoria. He set out his personal details including his email address. He also provided information in a number of categories including his licence from NSW, photographic identification and insurance. The Section 19 Notice required Mr Hanna to make a general declaration regarding a range of issues that included whether he had been the subject of disciplinary proceedings in any State, whether he had been convicted or found guilty of an indictable offence involving fraud, dishonesty, drug trafficking or violence, whether he had ever been insolvent under administration and whether an insurer had ever declined, cancelled or imposed special conditions in relation to his practising as a building practitioner in Victoria or in an equivalent occupation in the building and construction industry outside Victoria. Mr Hanna answered all of the questions that were asked of him in the negative. The questions had been preceded by a paragraph advising him:
“The purpose of collecting this general information is to enable the Board to determine whether the applicant is of good character pursuant to section 170(1) of the Building Act 1993.”[2]
[2] T documents; T2-5
Building Practitioners Board postponement of Mr Hanna’s registration
I am satisfied that the BPB gave notice to Mr Hanna that it had postponed the grant of registration until 30 November 2015. It did so by email sent on 9 October 2015. Its reason for postponing registration was that it had not yet finalised its assessment of his application. The BPB postponed Mr Hanna’s registration for a second time. It again notified him by email dated 24 November 2015. This time, the BPB postponed the grant of registration until 8 March 2016. It cited s 22(1)(a) of the MR Act as its reason for the postponement saying:
“Pursuant to section 22(1)(a), the Board may postpone the grant of registration if any of the statements or information in the notice as required by section 19 are materially false or misleading.”
Building Practitioners Board requested Mr Hanna to provide further information before assessing his application
The BPB wrote to Mr Hanna on 27 January 2016 advising him that, in assessing applications made under the MR Act, it took into account the MR Act and certain provisions of the Building Act 1993 (Vic) (Building Act). Section 170(1) of the Building Act, the BPB advised Mr Hanna, requires it to be satisfied that an applicant is of good character before granting registration. Based on the information that Mr Hanna had provided in support of his application, the BPB told him that it did not have sufficient evidence on which to be satisfied that he was of good character. It advised that it had been unable to verify his work with Oxford Builders. In order for it to consider and be satisfied of Mr Hanna’s good character, the BPB asked him to provide two categories of information under cover of a statutory declaration and to do so by 3 February 2016.
The first category required Mr Hanna to provide:
“Details of your work with Oxford Builders including site addresses, scopes of the work that you were involved in, duration of your involvement, any relevant permits or photographs of your involvement, and additional material that would verify your involvement with Oxford Builders between July 2012 and August 2015.”[3]
[3] T documents; T3-2
The second category of information required him to provide:
“At least (3) written references:
Your references must be in writing, from professional referees who can provide references for you in the context of the performance of the work forming the basis of the experience you presented to the NSW regulator in support of your application for a builder’s licence in that State.
Your references must be people who worked with you, or for whom you worked, and who can verify your experience. You must provide the name, contact telephone number, and, where applicable, registration or licence number of your referees.”[4]
[4] T documents; T3-2
Mr Hanna’s response to the Building Practitioners Board’s request
Mr Hanna replied to the BPB in a letter dated 3 February 2016. He began by complaining about the time that the BPB had taken to respond to his application under the MR Act and about the BPB’s apparent failure to contact Oxford Builders itself. He provided site addresses of two properties in Broadmeadows and one in Oak Park. Other job addresses would be given upon request, Mr Hanna wrote. He was not privy to the relevant permits for some of those were obtained by the developer and the builder and he was confident that, if the BPB contacted Oxford Builders, it could obtain details of the permits. As for his work on those sites, Mr Hanna said that:
“Scope of my work I was involved in were:
∙site visit, measure/calculate quote
∙string line – set out, clean rebate slab
∙preparation, scaffolding OH&S material
∙bricking, cleaning
(c)Duration of my involvement in each of the sites:
∙at brick stage”.[5]
[5] T documents; T4-4
With regard to the BPB’s request for photographs, Mr Hanna wrote:
“This is a cute and curious request.
In the course of my work I have no time to take photos of my work and fellow workers nor of any details of my involvement of my work.
In light of what is an extraordinary request I will enquire with the Builder whether they have any photos but the request for photos of my work involvement is curious, capricious and most unreasonable and is indicative of the view I have formed of your approach to this Application.
May I further suggest that the question and enquiry made by you in your letter evidences lack of understanding that I was a bricklayer undertaking work on a building site, not a supervisor, manager, company director who obtains permits and who has contractual arrangements with the owners.”[6]
[6] T documents; T4-4
Mr Hanna regarded the BPB’s request that he provide names of people he worked with as unreasonable and oppressive. In essence, he thought that he was being asked to verify something that was self-evident by virtue of the MR Act. Was the BPB to make his application as difficult and unreasonable as it could, Mr Hanna asked. He stated that he had:
“… put these matters formally in writing to you so that these matters may be made subject to appropriate Application to a Superior Court to determine whether the course you are adopting in considering or in lack of considering is proper and in accordance with the provisions of the legislation.”[7]
[7] T documents; T4-5
The Building Practitioners Board’s assessment of Mr Hanna’s application
The BPB had made searches in New South Wales and had found that Mr Dimopoulos was the owner and builder listed on one of the Broadmeadow properties and as a joint owner and builder on the other. He was the joint owner and builder on the Oak Park property. The BPB noted that, as Mr Hanna had not given dates as to when he worked on these properties, it had been unable to verify whether the dates on which he worked was in line with its records. In assessing Mr Hanna’s application, an officer of the BPB noted that, where an applicant has the prescribed qualification, he or she is not required to provide a work history or written references. The officer took that and Mr Hanna’s response into account in making his recommendation to the BPB on 3 February 2016:
“Given the applicant has not provided a substantive response to all the concerns raised in the show cause letter it is recommended that an application be refused as the BPB cannot satisfy itself the applicant is of good character based on the information at hand.”[8]
[8] T documents; T5-2
The Building Practitioners Board’s decision regarding Mr Hanna’s application for registration
On 8 February 2006, the BPB wrote to Mr Hanna advising him that it had, at its meeting on 5 February 2026, refused his application for registration in the category of Domestic Builder Limited. The letter advised Mr Hanna that his application had been refused because he had failed to satisfy the BPB that he was of good character as required by s 170(1)(c) of the Building Act.
LEGISLATIVE FRAMEWORK
The MR Act and its object
The MR Act applies to a State but only while it is a participating jurisdiction. Victoria is a participating jurisdiction for there is in force an Act of its Parliament adopting the MR Act.[9] Currently that Act is the Mutual Recognition (Victoria) Act 1998. MR Act’s long title[10] is:
“An Act to provide for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupations”.
[9] MR Act; ss 4(1) and 43
[10] The long title is part of the MR Act: Acts Interpretation Act 1901; s 13(2)(a)
Its principal purpose:
“… is to enact legislation authorised by the Parliaments of States under paragraph (xxxvii) of section 51 of the Commonwealth Constitution, and requested by the legislatures of the Australian Capital Territory and the Northern Territory, for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia.”
Nothing in the Act limits the operation of a law of a State so far as it can operate concurrently with it.[11]
[11] MR Act; s 6(2)
Part 3 of the MR Act deals with the ability of a person who is registered in connection with an occupation in a State, the Australian Capital Territory (ACT) or the Northern Territory (NT) (referred to as the “the first State” in the MR Act) to carry on an equivalent occupation in another State, the ACT or the NT (“the second State”). The word “occupation” is defined in s 4(1) to mean:
“… an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes specialisation in any of the above in which registration may be granted.”
The definition of the word “registration” is also defined in s 4(1):
“registration includes the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation.”
The mutual recognition principle
Section 17 is found in Division 1 of Part 3 and sets out the “mutual recognition principle” in so far as it applies to a person’s entitlement to carry on an occupation:
“(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a)to be registered in the second State for the equivalent occupation; and
(b)pending such registration, to carry on the equivalent occupation in the second State.
(2)However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on of an occupation in the second State, so long as those laws:
(a)apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b)are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.”[12]
[12] MR Act; s 4(1)
The “local registration authority” of a State for an occupation “… means 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.”[13]
[13] MR Act; s 4(1)
Entitlement to registration
Division 2 of Part 3 is concerned with entitlement to registration. It has two themes: notification given by a person seeking registration under the MR Act to the local registration authority; and entitlement to registration and continued registration.
A. Notification to local registration authority
A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for an equivalent occupation in accordance with the mutual recognition principle.[14] Section 19(2) sets out what must be included in the notice lodged by the person seeking registration in the second State:
[14] MR Act; s 19(1)
“The notice must:
(a)state that the person is registered for the occupation in the first State and specify that State; and
(b)state the occupation for which registration is sought and that it is being sought in accordance with the mutual recognition principle; and
(c)specify all the States in which the person has substantive registration[[15] for equivalent occupations; and
(d)state that the person is not the subject of disciplinary proceedings in any State (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations; and
(e)state that the person’s registration in any State is not cancelled or currently suspended as a result of disciplinary action; and
(f)state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any special conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any State; and
(g)specify any special conditions to which the person is subject in carrying on any such occupation in any State; and
(h)give consent to the making of inquiries of, and exchange of information with, the authorities of any State regarding the person’s activities in the relevant occupation or occupations or otherwise regarding matters relevant to the notice.”
[15] “substantive registration means registration under a law of a State, but does not include deemed registration.”: MR Act; s 4(1).
Sections 19(3) and (4) relate to the documents that must accompany the notice. The person lodging a notice must verify the statements made in the notice in accordance with s 19(2) by statutory declaration.[16] Amendment to the notice may be permitted by the local registration authority after it has been lodged.[17]
[16] MR Act; s 19(5)
[17] MR Act; s 19(6)
B. Entitlement to registration and continued registration
Section 20(1) provides that:
“A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.”[18]
Section 20(2) provides that the local registration authority may grant registration on that ground and may grant renewals of that registration. Once registered in the second State, a person continues to be entitled to be registered on that ground whether or not his or her registration ceases in the first State.[19]
[18] MR Act; s 20(1)
[19] MR Act; s 20(3)
Continuance of the person’s registration is the subject of s 20(4). It provides:
“Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws:
(a)apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b)are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.”
The local registration authority may impose conditions on registration. Section 20(5) provides:
“The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person’s registration in the first State or that are necessary to achieve equivalence of occupations.”
Section 20 has effect subject to the provisions of Part 3.[20] That brings me to deemed registration and a grant of registration by the local registration authority. When a person lodges a notice with the local registration authority under s 19 and a grant or refusal of registration is pending, he or she is taken to be registered as provided in s 20(1). That is called “deemed registration” but it does not itself provide a basis for registration in another State.[21] Section 27 provides that, with certain qualifications, a person may carry on the occupation in the second State as if the deemed registration were a substantive registration in that second State.
[20] MR Act; s 20(6)
[21] MR Act; s 25
Section 26 sets out six circumstances in which a person’s deemed registration ceases. Only one is relevant in this case:
“A person’s deemed registration in the second State ceases if the local registration authority of the State refuses to grant registration, subject to any determination of the Tribunal.”[22]
[22] MR Act; s 26(3)
Section 23 provides the circumstances in which a local registration authority may refuse a grant of registration:
“(1) A local registration authority may refuse the grant of registration if:
(a)any of the statements or information in the notice as required by section 19 are materially false or misleading; or
(b)any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or
(c)the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
(2)A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.”
C. When registration must be granted and when it may be postponed
As a general rule, registration must be granted within one month after the notice is lodged with the local registration authority under s 19.[23] When granted, registration takes effect from the date the notice was lodged.[24] That is consistent with the fact that a person has deemed registration by virtue of s 25 when he or she lodges a notice under s 19 of the MR Act.
[23] MR Act; s 21(1)
[24] MR Act; s 21(2)
Provided it does so within one month of lodgement of the notice, a local registration authority may decide to postpone or refuse the grant of registration.[25] If the decision is to postpone, the period of the postponement may not be greater than six months. Unless a decision is made to refuse or grant the registration before the end of the period of postponement, the person is entitled to registration immediately at the end of that period:
“… and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.”[26]
[25] MR Act; s 21(3)
[26] MR Act; s 21(4)
Section 22(1) provides for the postponement of the grant of registration:
“A local registration authority may postpone the grant of registration if:
(a)any of the statements or information in the notice as required by section 19 are materially false or misleading; or
(b)any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or
(c)the circumstances of the person lodging the notice have materially changed since the date of the notice or the date it was lodged; or
(d)the authority decides that the occupation in which registration is sought is not an equivalent occupation.”
The Building Act 1993 (Vic) (Building Act)
Section 169(1) of the Building Act provides that a person may apply to the BPB to be registered as building practitioner. The person’s application must comply with s 169(2). Among the requirements is a requirement that the notice must be accompanied by the prescribed information relating to the character of the applicant.[27] Section 170 provides:
[27] Building Act; s 169(2)(ca)
“(1) The Building Practitioners Board must register an applicant in each category or class provided for if it is satisfied that the applicant –
(a) has complied with section 169; and
(b) either –
(i) holds an appropriate prescribed qualification; or
(ii)holds a qualification that the Board considers is, either alone or together with any further certificate, authority, experience or examination equivalent to a prescribed qualification; and
(c)is of good character; and
(d)has complied with any other condition prescribed for registration in that category or class.
(2)The Building Practitioners Board may refuse to register an applicant if the requirements of subsection (1) are not met.
** * * *
(5)In this section qualification means any degree, diploma, certificate, accreditation, authority, training, experience or examination (whether obtained inside or outside Victoria).”
Regulation 1503 of the Building Regulations 2006 (Building Regulations) provides that:
“For the purposes of registration under section 170 of the Act, the prescribed qualifications for registration of a category and a prescribed class of building practitioner set out in column 2 of the Table in Schedule 7 are the relevant qualifications set out in column 3 of the Table in Schedule 7 for that category and class.”
The qualifications prescribed for a “class of domestic builder (limited)” are “a certificate issued by the Authority, after examination of the applicant, certifying that
the applicant has adequate knowledge and experience to carry out, manage or arrange to carry out the components of domestic building work specified in the certificate”.[28]
[28] Building Regulations; Schedule 7, Item 16
Under the Building Act, registration as a building practitioner lasts until it is cancelled under Part 11.[29] A building practitioner’s registration may also be suspended. The BPB may suspend it if the building practitioner fails to comply with s 170(2), which imposes obligations to pay an annual fee to the Building Administration Fund and to be covered by insurance as required by Part 9.[30] The suspension lasts until the person pays the annual fee or gives the BPB written proof that he or she has made the appropriate arrangements regarding insurance. Section 172(4) provides that the BPB must revoke the suspension when payment is made and written proof is given but s 172(4A) provides that:
“Despite anything to the contrary in subsection (4), the Board may decide not to revoke the suspension of a person who has been suspended for more than 3 years unless the Board is satisfied that the person –
(a) is of good character; and
(b) had a satisfactory reason for the extended period of suspension.”
[29] Building Act; s 171
[30] Building Act; s 172(3)
CONSIDERATION
Mr Gray, solicitor for the applicant, initially submitted that Mr Hanna was entitled to registration by virtue of s 22(3) of the MR Act. He was entitled to registration, he had submitted, because the BPB had failed to postpone the grant of registration in accordance with ss 21 and 22 of the MR Act. Mr Gray later acknowledged that the postponement had been properly made and that the BPB had refused to register Mr Hanna within the six month period that followed its initial postponement of registration. I am satisfied that the BPB gave notice to Mr Hanna by means of an email sent on 9 October 2015 that it had postponed the grant of registration until 30 November 2015. The BPB told Mr Hanna that it had not yet finalised its assessment of his application.
Failure to grant registration or postpone the grant of registration
Mr Gray submitted that the BPB’s emails dated 27 October 2016 and attached to its submissions disclose no reason for its postponement of Mr Hanna’s registration. They do not suggest that the BPB formed an opinion that the notice under s 19 contained significant or material errors for the purposes of s 22(1) of the MR Act. On that basis, the purported postponement was of no effect and, by virtue of s 21(4) of the MR Act, Mr Hanna is entitled to registration. He believed that Mr Hanna’s application for registration had already been assessed on 3 February 2016.
There are two emails dated 27 October 2016. Each was sent by Ms Louise Wiley, the BPB’s Registration Officer, to Mr Michael Chiller, the BPB’s lawyer. Apart from identifying the emails she forwarded in the Subject line of her email, Ms Wiley made no comment about the emails that she forwarded. One email forwarded an email dated 9 October 2015 from the BPB to Mr Hanna. The other forwarded an email dated 24 November 2015 from the BPB to Mr Hanna. I have referred to the relevant text of each at [5] above. After an adjournment, Mr Gray obtained instructions from Mr Hanna to the effect that he had received both emails when they had been sent to him. In both instances, he had received them at a time well before 8 March 2016 to which the BPB had postponed Mr Hanna’s grant of registration. Ms Wiley’s emails forwarding copies of those emails to Mr Chiller simply forwarded them. They played no part in the decision-making process.
Refusal decision made within time
Mr Gray initially submitted that Mr Hanna was entitled to registration by virtue of s 22(3) of the MR Act. He was entitled to registration, he had submitted, because the BPB had failed to postpone the grant of registration in accordance with ss 21 and 22 of the MR Act. Mr Gray later acknowledged that the postponement had been properly made and that the BPB had refused to register Mr Hanna within the six month period that followed its initial postponement of registration. I agree with Mr Gray that the BPB had properly postponed registration in accordance with s 21(3) and that it had made its decision refusing registration within the maximum seven month period permitted i.e. the initial period of one month contemplated by s 21(3) and the further period of up to six months for which registration may be postponed when regard is had to s 22(3). That means the deeming effect of s 22(3) had no operation. That is to say, Mr Hanna was not entitled to registration under s 20 by virtue of any failure to postpone registration or failure to make a decision refusing him registration within the period of the permitted postponement.
May the BPB refuse registration under the MRA if not satisfied that Mr Hanna is of good character?
Mr Gray submitted that the BPB is not permitted to reassess Mr Hanna’s NSW registration for defects when assessing an application for registration under the MR Act. Its enquiries are limited to determining whether Mr Hanna is registered in NSW and whether there are formal defects on the s 19 notice. It is outside its powers to raise other issues. He cited reasons for decision given by Deputy President Thompson in Re Glen Charles Gibbs and Minister for Immigration and Ethnic Affairs.[31] In particular, he cited Deputy President Thompson’s reference to a decision given by the Tribunal’s first President, Brennan J, as he then was, in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs, New South Wales[32] (Brian Lawlor) as authority for the proposition that the Tribunal had power to set aside an administrative decision where that decision was ultra vires and could have been so declared by a court.
[31] [1986] AATA 161
[32] (1978) 1 ALD 167
A. General considerations
The Full Court of the Federal Court dismissed an appeal from the President’s decision in the Brian Lawlor case.[33] The essence of the view taken by the majority, Bowen CJ and Smithers J, is expressed in the judgment of the Chief Justice:
“... In the view which I take as to the meaning of s. 25 of the Administrative Appeals Tribunal Act ... an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong. ...”[34]
[33] Collector of Customs (New South Wales) v Brian LawlorAutomotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1; Bowen CJ and Smithers J; Deane J dissenting
[34] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at [23]; 317; 346; 7
The BPB has made a decision in fact. It is a decision that is made in relation to its function to decide whether to grant or refuse Mr Hanna’s registration in response to his notice given to the BPB under s 19 of the MR Act. That is a decision that it has made in relation to its functions under the MR Act. By virtue of s 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act), Mr Hanna was entitled to review the BPB’s decision.
Mr Gray submitted that the BPB carried a burden of proof. In some instances, one party or another may carry a burden of proof. An applicant seeking review of a reviewable objection decision made by the Commissioner of Taxation, for instance, has a burden of proving that an assessment is excessive or, in any other case, that the taxation decision concerned should not have been made or should have been made differently. That burden is imposed by s 14ZZK of the Taxation Administration Act 1953. No such burden of proof has been imposed by the MR Act on the decision-maker. In the absence of such a provision, no burden of proof lies on either party. Each and every party, and every person representing a party, must use his or her best endeavours to assist the Tribunal to fulfil its objective set out in s 2A of the AAT Act. That requires it to pursue certain objectives in carrying out its functions. When an application has not been resolved at an earlier time, its role is, as stated by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs:[35]
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.”[36]
[35] [1979] AATA 179; (1979) 24 ALR 577
[36] [1979] AATA 179; (1979) 24 ALR 577 at 589
B. The authorities
Ms Harris relied on the judgment of the Full Court of the Supreme Court of Western Australia in Re Tkacz; Ex parte Tkacz[37] while Mr Gray sought to distinguish it. The case revolved around Mr Tkacz’s application to be admitted to practise law in Western Australia. He had previously been convicted of a criminal offence in New South Wales but had been admitted to practice in that State. Mr Tkacz’s application was made under the MR Act and the Mutual Recognition (Western Australia) Act 2001 (WA) (WAMR Act), which was then in force.[38] Section 4(1) of the WAMR Act adopts the MR Act as originally enacted together with any amendments.
[37] [2006] WASC 315; Martin CJ, Murray and Templeman JJ
[38] By virtue of s 3(2), the WAMR Act ceased to have effect on 28 February 2011 but the adoption of the MR Act, as amended, continued uninterrupted from 1 March 2011 by virtue of the provisions of the Mutual Recognition (Western Australia) Act 2001 (WA).
Section 27 of the Legal Practice Act 2003 (WA) (LPA) set out the qualifications required for admission as a legal practitioner. Section 28 of the LPA provided that the person may be admitted as a legal practitioner by the Court if that person has the qualifications specified in s 27 and, among other matters:
“(b) has provided to the Board such evidence as the Board may require showing to the satisfaction of the Board that the person is of good fame and character and fit and proper to be so admitted;
(c)has obtained from the Board a certificate that the person has –
(i)provided the evidence required under paragraph (b); and
(ii)observed and complied with the provisions of this Act and the rules.”
The reference to the “Board” is a reference to the Legal Practice Board of Western Australia (LPBWA). The LPBWA is empowered to conduct an enquiry as to whether a person is of good fame and character and a fit and proper person to be admitted.
Responsibility to issue practising certificates is given to the LPBWA, which may refuse to issue such a certificate if not satisfied that the applicant is a fit and proper person and competent to practise in Western Australia. Part 12 of the LPA deals with complaints against legal practitioners. The Court is empowered to strike a practitioner from the Roll of Practitioners. Section 161 provides that:
“Nothing in this Part [12] affects the jurisdiction of the Supreme Court with respect to legal practitioners.”
The Full Court said of s 161:
“ It may reasonably be inferred from this section that it was the intention of the legislature to preserve the inherent jurisdiction of the Court with respect to the supervision of the conduct of legal practitioners and the Court’s inherent power to determine which persons are to be accepted as practitioners of the Court, and either admitted to, or removed from, its Roll.”[39]
[39] [2006] WASC 315 at [21]
The Full Court found that the Court is a relevant local registration authority for the purposes of admission to practice and that the LPBWA is the local registration authority for the purposes of the issue of a practice certificate. It considered whether the purpose of mutual recognition legislation and the traditional role of superior courts to regulate and control the conduct of legal practitioners were at odds:
“… On the one hand, the clear and obvious purpose of the mutual recognition legislation is to create a national scheme under which the capacity of an occupational registering authority to delay or refuse the registration in that jurisdiction of a person who is registered in any other jurisdiction is severely curtailed, so that registration in one jurisdiction leads virtually automatically to registration in each other jurisdiction in which it is sought. On the other hand, the inherent jurisdiction of the superior courts to determine who shall be recognised as practitioners of those courts, and to regulate and control their conduct, goes back to antiquity, and has long been accepted to be a fundamental facet of a court’s capacity to administer justice.”[40]
[40] [2006] WASC 315 at [44]
The Full Court determined that there was no necessary tension between the two objectives. Indeed, the MR Act had been crafted in such a way as to give effect to the mutual recognition principle whilst preserving the capacity of a superior court to determine for itself who, and who would not, be admitted as its practitioners.[41] Its reasoning was along the following lines:
[41] [2006] WASC 315 at [45]
(1)It has long been held in Australian superior courts, and upheld by the High Court in Re Davis,[42] that, unless the legislature enacts otherwise by express words or necessary implication, they retain a residual discretion to determine whether a person approved by a body such as the LPBWA would be admitted to practice.[43]
[42] (1947) 75 CLR 409; Starke, Dixon, McTiernan and Williams JJ; Latham CJ dissenting
[43] [2006] WASC 315 at [47]-[57]
(2)In enacting the LPA and particularly s 161 of that Act, the Western Australian legislature has expressly recognised the Supreme Court’s power to refuse to admit a person to practice even though that person possesses all of the requisite qualifications and experience.[44]
[44] [2006] WASC 315 at [58]-[61]
(3)“ The LPA is a law that regulates the manner of carrying on the occupation of legal practitioner in the State of Western Australia. It recognises the power of the Court to refuse to admit a person to the practice of that occupation even though he or she may have all the specified qualifications or experience necessary to fit them to carry on that occupation. It is a law which applies equally to all persons carrying on or seeking to carry on the occupation of legal practitioner in Western Australia. Accordingly, the clear and express effect of s 17(2) of the MRA(Cth) is to provide that the mutual recognition principle does not affect the operation of that aspect of the LPA.”[45]
[45] [2006] WASC 315 at [63]
(4)Section 20 of the MR Act sets out a person’s entitlement to registration and to continued registration. It must be read with s 17(2) and consistently with the clear purpose and effect of s 17(2). It follows that:
“… where s 20(1) refers to a law of the second State expressly providing that ‘registration in the first State is a sufficient ground of entitlement to registration’ it should be taken to be a reference to a sufficiency of the qualifications or experience necessary to secure registration. …”[46]
[46] [2006] WASC 315 at [64]
(5)The Full Court looked at the proper characterisation of a superior court’s capacity to determine who will, and who will not, be admitted as a legal practitioner and the words of the qualification in s 17(2)(b) i.e. the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State provided, among other matters, they are not based on the “… attainment or possession of some qualification or experience relating to fitness to carry on the occupation.” (emphasis added). It said:
“… The long-standing capacity of superior courts to determine that only the persons with the requisite personal qualities of character to be admitted to, or remain on, the Roll would not easily fit within the description of ‘some qualification or experience’. Accordingly, that capacity of the superior courts, including the Supreme Court of Western Australia, remains unaffected by the mutual recognition legislation.
…
… [I]n our opinion, the established and long recognised power of the Court to determine whether a person should be admitted to its Roll, irrespective of whether or not they possess the requisite educational qualifications and experience, is unaffected by the mutual recognition legislation, and applies equally to applicants for admission under that legislation as it does to applicants for admission who rely only on the provisions of the LPA.”[47]
[47] [2006] WASC 315 at [66]-[69]
(6)The Full Court also supported the conclusion that it reached by a separate line of reasoning. It starts back with s 20 and, in particular, with s 20(2) which the Full Court said reinforced the proposition that s 20(1) is not intended to compel registration in the second State contrary to the exception to the mutual recognition principle expressly established by s 17(2). Section 20(2) provides that “The local registration authority may grant registration on that ground and may grant renewals of such registration.” (emphasis added). The Full Court observed:
‘ The use of the word ‘may’ rather than the imperative ‘shall’ is consistent with the approach reflected in the High Court’s decision in In Re Davis (supra) and with the scheme of provisions such as s 28 of the LPA. That conclusion is further reinforced by s 20(4) of the MRA(Cth) which provides:
(4)Continuance of registration is otherwise subject to the laws of the second State, to the extent that those laws:
(a)apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b)are not based on the attainment or possession of some qualification or experience relating to fitness to carry on that occupation.’”[48]
[48] [2006] WASC 315 at [65]
The Queensland Court of Appeal has also recognised that it retains inherent power in relation to the admission of legal practitioners even though its powers might be thought to have been curtailed by r 76Q of the Solicitors’ Admission Rules 1968. Rule 76Q provides:
“A decision of the Registrar in relation to the admission, under the Mutual Recognition Act, of an interstate practitioner as a solicitor is not subject to appeal or review by the Court or Court of Appeal.”
In his judgment in Re Petroulias,[49] de Jersey CJ, with whom Davies JA agreed, said:
“ If the Court of Appeal had admitted Mr Petroulias, by registering him as a solicitor in Queensland under the Act, then that Court would retain the inherent capacity to set aside that registration if effected irregularly, as where premised on a circumstance shown not to have existed. This is especially so bearing in mind the strength of the inherent jurisdiction of the court in relation to the legal profession, which is a pervasive jurisdiction not readily diminished or displaced. (I am indebted to Davies JA for reference to the statement by Dixon J, as he then was, in In re Davis [1947] HCA 53; (1947) 75 CLR 409, 424, set out in para [60] of the reasons of Davies JA.) That inherent power would exist notwithstanding the avenue for ‘review’ as such, under the Administrative Appeals Tribunal Act. Section 34 should not be read as excluding that inherent jurisdiction: they comfortably, and workably, co-exist. Likewise, therefore, because of r 76K, the Registrar – as the delegate of the Court of Appeal – must be seen to retain that residual authority. Critical to that conclusion is the delegation effected by r 76K. Exercising that authority would not, in terms of r 76Q, involve ‘appeal (against) or review by the court or Court of Appeal’ of the Registrar’s decision: he would be revisiting it himself.”[50]
[49] [2004] QCA 261; [2005] 1 Qd R 643; (2004) 208 ALR 552; de Jersey CJ, McMurdo P and Davies JA
[50] [2004] QCA 261; [2005] 1 Qd R 643; (2004) 208 ALR 552 at [35]; 653; 558
In his recent decision in Re Andriotis and Building Practitioners Board,[51] Senior Member Fice analysed these authorities and also referred to a passage from the transcript of an application for leave to appeal heard by Nettle J in Agapis v A Deputy President of the Administrative Appeals Tribunal at Perth and Ors.[52] He concluded:
“… Even if Mr Andriotis satisfied the qualification and experience requirements for the registration which he sought in Victoria, the BPB was entitled to seek information which would confirm that he met the good character requirements for a grant of registration. The good character requirement found in the Building Act cannot properly be described as a qualification or experience relating to fitness to carry on the occupation. It applies equally to all persons seeking to carry on the occupation of a domestic builder. It falls within the exception described by s 17(2) of the Mutual Recognition Act.”[53]
[51] [2017] AATA 378; Senior Member Fice
[52] [2015] HCA Trans 246 (23 September 2015)
[53] [2017] AATA 378 at [28]
C. What is “good character” in the context of the Building Act?
The concept of “good character” is referred to only twice in the Building Act as enacted when Mr Hanna lodged his notice under s 19 of the MR Act: s 170(1)(a) and s 172(4A)(a). I have set them out at [6] and [33] above. It is not a concept that is defined in the Building Act or in the Building Regulations made under it. Although given in the context of a decision made under the Migration Act 1958 (Migration Act), the judgment of Lee J is equally applicable to the context of the Building Act when it sets out the ordinary meaning of the expression “good character”:
“Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a … subjective opinion … A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character … Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”[54]
[54] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422; 139 ALR 84; Davies, Lee and RD Nicholson JJ at 431-432; 94 per Lee J
The context in which good character must be decided is important. Even under the Migration Act, different considerations may influence the consideration if the person whose character is under scrutiny has applied for a business visa rather than a visa for entertainment or tourist purposes. The scope and purpose of the visa would be relevant as would considerations relating to the harm to the Australian community were the visa to be granted.
Similar considerations arise when interpreting the concept of “good character” when it appears in the Building Act. It must be influenced by the purposes and objectives of the Act. Those purposes include the regulation of building work and building standards and the regulation of building practitioners.[55] In so far as they are relevant to the occupation of a bricklayer, the objectives of the Building Act include those that are:
[55] Building Act; ss 1(a) and (d)
“(a) to protect the safety and health of people who use buildings and places of public entertainment;
(b)to enhance the amenity of buildings;
(c)…
(d)to facilitate the adoption and efficient application of –
(i)national building standards; and
(ii)…
(e)to facilitate the cost effective construction and maintenance of buildings …
(f)to facilitate the construction of environmentally and energy efficient buildings;
(g)to aid the achievement of an efficient and competitive building … industry.”[56]
[56] Building Act; s 4(1)
When assessing whether a person is of “good character”, regard must be had to these objectives in the overall context of a scheme of regulation of building work and of building standards as well as of the regulation of building practitioners. It might be thought that a person seeking registration as a Domestic Builder – Limited (Brickwork) (Class H) might not have to possess the same enduring moral qualities of a person seeking registration as a Domestic Builder – Unlimited or an engineer, building surveyor, building inspector and so on. That is not necessarily so for enduring moral qualities such as integrity and honesty must surely be common to all. Qualifications relevant to particular work and experience in doing that work are one thing. They mean that it is likely that a person knows how to do the work to the proper standard. That is illustrated by the qualifications required for a person to be registered as a domestic builder (limited). As I have set out at [32] above, the qualification required is a certificate from the appropriate person certifying that the applicant has adequate knowledge and experience to carry out, manage or arrange to carry out the components of domestic building work specified in the certificate.
A person’s enduring moral qualities such as integrity and honesty are not directed to whether a person is capable of doing the work but to the qualities that make it more likely that he or she will do the work to that proper standard according to applicable building standards. They may be assessed in various ways but past and current conduct will be relevant. Even if past conduct reflects poorly upon a person’s character, it will not necessarily be determinative. Other factors such as the passage of time and more recent conduct will be relevant. That is consistent with the nature of the prescribed information that an applicant for registration is required to provide under s 169(2)(ca) of the Building Act in relation to character. I also note that the BPB has issued a Good Character Policy, which is also consistent with that approach.
The Building Act also refers to a person’s being a “fit and proper person to practise as a building practitioner”. Both references are found in s 179(1), which provides that the BPB may make any one or more of the decisions set out in s 179(2)[57] if it finds that a registered building practitioner is, among other matters:
[57] Eight decisions may be made under s 179(2) and range from reprimanding the person to cancelling his or her registration and disqualifying the person from being registered for a period up to three years.
“(a)-(c) …
(d)has been guilty of conduct in relation to his or her practice as a building practitioner which –
(i)is constituted by a pattern of conduct or by gross negligence or gross incompetence in a particular matter; and
(ii)shows that he or she is not a fit and proper person to practise as a building practitioner; or
(da)has shown in the information provided to the Board under section 172A that he or she is not a fit and proper person to practise as a building practitioner; or
(e)-(h)…
Section 172A, to which reference is made in s 179(2)(da), requires a building practitioner to notify the BPB of any change to prescribed information about the practitioner provided to it under s 169(2)(ca) and to do so without delay after the change occurs. Section 169(2)(ca) requires an application for registration as a building practitioner to be accompanied by prescribed information relating to the character of the applicant. Regulation 1509 of the Building Regulations provides:
“Prescribed information as to character of applicant for registration
For the purposes of section 169(2)(ca) of the Act, the prescribed information relating to character to be provided with an application for registration as a building practitioner is whether—
(a) the applicant has within the last 10 years as an adult or the last 5 years as a child, been convicted or found guilty of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence involving fraud, dishonesty, drug trafficking or violence; or
(b) the applicant has ever been insolvent under administration; or
(c) any licence, permit, registration or other authority enabling the applicant to work as a building practitioner in Victoria or in an equivalent occupation in the building and construction industry in another State or Territory has ever been cancelled or suspended; or
(d) the applicant has ever been disqualified from holding, or been refused a licence, permit, registration or other authority enabling the applicant to work as a building practitioner in Victoria or in an equivalent occupation in the building and construction industry in another State or Territory; or
(e) the applicant has been fined, reprimanded or cautioned for any breach of an Act, regulations, rules, professional conduct or code of ethics, in relation to working as a building practitioner in Victoria or in an equivalent occupation in the building and construction industry in another State or Territory; or
(f) any insurer has ever declined, cancelled, or imposed special conditions in relation to the provision of professional indemnity insurance, public liability insurance, or any other indemnity insurance in respect of the applicant working as a building practitioner in Victoria or in an equivalent occupation in the building and construction industry in another State or Territory.
* * * * *”
The expression “fit and proper person to practise as a building practitioner” is not defined but it gains its meaning from its context in s 179 and from the Building Act generally. One part of that context is that s 179 gives the BPB power to make a decision affecting, within the confines of s 179(2), the registration of a registered building practitioner. That is a context different from those in which “good character” is what must be determined. In those contexts, a person is either not registered or he or she has been registered but his or her registration has been suspended for failure to pay an annual fee to the Building Administration Fund or give to the BPB written proof of holding appropriate insurance. The enquiry of whether a person is a fit and proper person to practise as a building practitioner may include his or her enduring moral qualities to be registered but may go beyond those qualities to his or her conduct in carrying on the occupation and so ability to carry it on. This is apparent from the general discussion of the concept of “fit and proper” in Australian Broadcasting Tribunal v Bond,[58] which, although in a different context, is equally relevant in this:
“The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”[59]
D.Relevance of good character criterion in the Building Act in assessing an MR applicaton
[58] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11; Mason CJ, Brennan J, Deane, Toohey and Gaudron JJ
[59] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11 at 380; 40; 56 per Toohey and Gaudron JJ
If it were not for s 17(2) of the MR Act, Mr Hanna would unquestionably be entitled to registration in Victoria as a building practitioner in Victoria in the category of Domestic Builder – Limited (Brickwork) (Class H). It is accepted by the BPB as the equivalent occupation of the occupation for which he is registered in NSW. That is the result of applying the mutual recognition principle in s 17(1) of the MR Act.
That mutual recognition principle is, however, subject to the qualification in s 17(2). With one exception, the mutual recognition principle is subject to the operation of laws that regulate the manner of carrying on an occupation in the second State being, in this case, Victoria. The Building Act and the Building Regulations are laws that regulate the manner of carrying on an occupation in Victoria. They regulate who may carry on the occupation of a building practitioner and when the entitlement to do so is lost or suspended. They are laws that apply equally to all persons carrying on, or seeking to carry on, the occupation of a building practitioner in Victoria. Therefore, their operation is not excluded by s 17(2)(a) of the MR Act.
The issue is whether they are excluded by the operation of s 17(2)(b) and, more particularly, whether the criterion in s 169(2)(ca) is “… based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.” It is apparent from the meaning of “good character” as it is used in the Building Act that it relates to a person’s enduring moral qualities. It does not relate to a person’s qualification for the particular category or prescribed class of building practitioner for that is the subject of r 1503 of the Building Regulations and Schedule 7. It does not relate to a person’s ability to carry on the occupation of a building practitioner in a particular category or prescribed class. It relates to a person’s enduring moral qualities. It is not based on a person’s possessing some qualification or experience relating to fitness to carry on the occupation of a building practitioner.
Therefore, I have concluded that the BPB was entitled to refuse Mr Hanna’s request for registration in the category of Domestic Builder (Limited) on the basis that he had failed to satisfy it that he was of good character as required by s 170(1)(c) of the Building Act.
Does Mr Hanna satisfy the criterion in s 170(1)(c) of the Building Act?
When I expressed surprise that Mr Hanna was not being called to give evidence, Mr Gray responded to the effect that my surprise was of no forensic concern to him. I remain surprised for there are issues that arise on the evidentiary material that I have and that I would have expected Mr Hanna to address in giving evidence. They are issues on which I would have expected the BPB’s counsel, Ms Harris to explore in cross-examination. Mr Hanna may have responses to the issues that would allay all concerns but, in his absence, I do not have any factual foundation on which I am satisfied that he is of good character as required by s 170(1)(c). That is quite apart from any inference I could draw from his failure to give evidence in support of his own application. His reasons for failing to do so have not been explained in circumstances in which it is reasonable to expect that he would have given evidence. It follows that I could draw the inference that his evidence would not have been helpful to his case.[60]
[60] Jones v Dunkel (1959) 101 CLR 298
Whether I draw that inference or do not, the evidentiary material raises the following issues, all of which would need to be considered in assessing whether Mr Hanna is a person of good character:
(1)In his statement, Mr Hanna said that, in his application for NSW registration, he had stated that he had worked for Oxford Builders from 2012 when he should have stated that he had done so from 2013. He says that it was the fault of Mr Alex Dimopoulos of Oxford Builders or of one of his staff. Mr Dimopoulos had assisted him as he struggled to read the form properly.
(a)His statement may be at odds with his letter to the BPB dated 3 February 2016 when he addressed its letter to him of 27 January 2017. Mr Hanna has not stated in that four page letter that he has had any assistance in writing it although he does ask whether it is fair that the BPB asks him to respond in seven days “in the circumstances where I need to have assistance from an English speaking person”.
(b)There is no suggestion that Mr Hanna has gone back to the NSW licensing authorities to correct his statement which must be characterised as a false or misleading statement. It may be that his error was unintentional or that it was made in extenuating circumstances but, in the absence of his appearance at the hearing, I have no foundation on which to make that finding.
(c)There is no evidence whether the NSW licensing authorities would want to reconsider their registration of Mr Hanna for an Individual Contractor Licence for a period of one year in the category of Bricklaying.
(2)Paragraph 7 of Mr Hanna’s statement states that he “worked for Oxford Builders Pty Ltd from 2012” (emphasis added) which he corrected to 2013 as I have just noted. On its face, this suggests that Mr Hanna worked for Oxford Builders continuously from 2013. At the same time, he referred to bricklaying for three building projects at three addresses. He makes no mention of the nature of the bricklaying that he undertook or the length of time for which he was engaged in bricklaying. Was the work continuous with him moving from one project to another? These are questions of the sort that Mr Hanna could have addressed had he given evidence.
(3)Mr Hanna has not responded to the BPB’s requests for information and for references. It made that request in a letter dated 27 January 2017 and appearing on its face to have been sent to him by email if not by post. After a lengthy letter complaining about the information he had been asked to obtain, he asked for an extension of time on the very day on which he had been asked to provide that information i.e. 3 February 2016. Why he had not asked for the extension at an earlier time is not explained on the face of the letter.
These are matters that call into question Mr Hanna’s integrity and honesty in dealing with authorities in NSW and in Victoria. The scheme of regulation imposed by the Building Act and the Building Regulation requires persons to have those moral qualities in order for it to operate efficiently and effectively if it is to achieve its objectives. It may be that he has answers and explanations that would deflect those questions but, in the absence of Mr Hanna’s giving evidence, I am not satisfied that he is of good character as required by s 170(1)(c) of the Building Act. Therefore, I have decided to affirm the BPB’s decision dated 8 February 2016 to refuse the grant of registration to Mr Hanna as a building practitioner in Victoria in the category of Domestic Builder – Limited (Brickwork) (Class H).
I certify that the sixty three preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie.
Signed: ……[sgd]....................................
Associate
Date of Hearing: 30 March 2017
Date of Decision: 13 April 2017
Solicitor for the Applicant: Mr James Gray
Just Law
Counsel for the Respondent: Ms Claire Harris
Solicitor for the Respondent: Mr Michael Chiller
Victorian Building Authority
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