Hughes and Victorian Building Authority
[2025] ARTA 113
•6 February 2025
Hughes and Victorian Building Authority [2025] ARTA 113 (6 February 2025)
Applicants:Michael Hughes
Respondent: Victorian Building Authority
Tribunal Number: 2024/0915
Tribunal:General Member K. Thornton
Place:Melbourne
Date:6 February 2025
Decision:The decision under review is varied so that the Applicant is entitled to registration as:
a)Domestic Builder Limited to carpentry;
b)Domestic Builder Limited to construction of shade structures;
c)Domestic Builder Limited to site works involved in relocating a dwelling;
d)Domestic Builder Limited to restumping and re-blocking;
e)Domestic Builder Limited to construction of footings and slab work;
f)Domestic Builder Limited to earthworks and excavation work;
g)Domestic Builder Limited to insulation work; and
h)Domestic Builder Limited to sheet plastering.
The Applicant’s application for registration as Domestic Builder (Unlimited) with conditions and Commercial Builder (Limited) with conditions is refused.
................................[sgd]........................................
General Member K. Thornton
Catchwords
MUTUAL RECOGNITION – Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTMR Act) – Applicant registered in New Zealand as a Licensed Building Practitioner – Carpentry – whether Applicant is entitled to be registered as a Domestic Builder (Unlimited) and Commercial Builder (Limited) with conditions by operation of the TTMR Act – consideration of the Trans-Tasman mutual recognition principle – consideration of occupations and activities – whether activities ‘substantially the same’ – whether equivalence can be achieved by conditions – decision under review varied.
Legislation
Building Act 1993 (Vic)
Building Act 2004 (NZ)
Building Regulations 2018 (Vic)
Mutual Recognition Act 1992 (Cth)
Trans-Tasman Mutual Recognition Act 1997 (Cth)Cases
Board of Examiners v Lawrence (2000) 100 FCR 255
Cau v Victorian Building Authority [2022] FCA 45
Little and Victorian Bar Inc [2024] AATA 2852
Medical Board (Qld) v Renton (2006) 152 FCR 566
Re Rowe and New South Wales Police Service (1997) 47 ALD 442
Re Wearne and NSW Police Service (1994) 34 ALD 315
Victorian Building Authority v Andriotis (2019) 268 CLR 168; [2019] HCA 22
Victorian Building Authority v Cau (2023) 298 FCR 319Secondary Materials
Building (Definition of Restricted Building Work) Order 2011 (NZ) SR 2011/317
Building (Designation of Building Work Licensing Classes) Order 2010 (NZ) SR 2010/43
Licensed Building Practitioner Rules 2007 (NZ)Statement of Reasons
INTRODUCTION
This is an application for review made pursuant to the Trans-Tasman Mutual Recognition Act 1997 (Cth) (‘TTMR Act’) for review of a decision of the Respondent (‘the Victorian Building Authority’) made on 1 February 2024 (‘decision under review’ otherwise known as ‘the original decision’).
The original decision was a refusal by the Respondent to register the Applicant as a building practitioner in the category of Domestic Builder (Unlimited) and Commercial Builder (Unlimited) in Victoria in accordance with s 22(1)(c) of the TTMR Act.
On 13 February 2024, the Applicant lodged an application for review with the Administrative Appeals Tribunal (‘AAT’).
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’).[1]
[1] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
Since the filing of the application, and prior to the Hearing of the matter before the Tribunal, the Applicant refined his application to seek registration as Domestic Builder (Unlimited) with conditions, and Commercial Builder (Limited) with conditions.[2]
[2] The Applicant also later sought registration in relation to ‘metal roofing systems’ but chose not to pursue this further during the hearing of the application. It has not been considered further.
Similarly, the Respondent revisited its original decision, and advised the Applicant that the Respondent considered the Applicant is entitled to registration in the classes of:
(a)Domestic Builder Limited to carpentry;
(b)Domestic Builder Limited to construction of shade structures;
(c)Domestic Builder Limited to site works involved in relocating a dwelling;
(d)Domestic Builder Limited to re-stumping and re-blocking;
(e)Domestic Builder Limited to construction of footings and slab work;
(f)Domestic Builder Limited to earthworks and excavation work;
(g)Domestic Builder Limited to insulation work; and
(h)Domestic Builder Limited to sheet plastering.
The Respondent otherwise contended that the Applicant should be refused registration in the class of Domestic Builder (Unlimited) and Commercial Builder (Limited) with conditions as proposed by the Applicant.
Hearing of the application
The Hearing of the application took place in the Melbourne Registry of the Tribunal by video on 6 December 2024. The Applicant was self-represented but assisted by his father (Mr Michael Hughes Snr). The Respondent was represented by Ms Alice Wharldall of counsel, instructed by Ms Amrita Maharaj, a solicitor from the Victorian Building Authority. The Applicant gave evidence and was cross-examined. The Respondent called evidence from Mr John Spiteri, an expert witness from the Victorian Building Authority. Mr Spiteri was cross-examined by the Applicant. The Tribunal received into evidence the Applicant’s Bundle of Material,[3] the Applicant’s Reply,[4] the T-documents,[5] and the Respondent’s Statement of Facts, Issues and Contentions plus Annexures.[6]
[3] Exhibit A1.
[4] Exhibit A2.
[5] Exhibit R1.
[6] Exhibit R2.
For the reasons that follow, the Tribunal has decided to vary the original decision in accordance with the conditions set out in paragraph 6 above. The Tribunal otherwise refuses the Applicant’s application for registration as a Domestic Builder (Unlimited) with conditions, and Commercial Builder (Limited) with conditions.
BACKGROUND
A brief chronology of the matter is as follows:
(a)On 21 September 2023, the Applicant was issued with a New Zealand Practising Licence in the Licence Class of ‘Carpentry’ (otherwise known as a Licensed Building Practitioner, or ‘LBP’ – Carpentry);[7]
(b)On 12 January 2024, the Applicant submitted a Notice pursuant to s 18 of the TTMR Act seeking registration in Victoria as a Domestic Builder (Unlimited) and Commercial Builder (Unlimited) (‘original Notice’);[8]
(c)On 1 February 2024, the Respondent notified the Applicant of its decision to grant the Applicant’s application on the basis of his equivalent New Zealand registration being Domestic Builder (Limited to carpentry) and refusing his application for Commercial Builder (Unlimited);[9]
(d)On 13 February 2024, the Applicant lodged an application with the AAT seeking review of the VBA’s decision of 1 February 2024;[10]
(e)On 26 September 2024, the Applicant sought registration in the class of Domestic Builder (Unlimited) with conditions, and Commercial Builder (Limited) with conditions (‘revised Notice’);[11] and
(f)On 29 October 2024, after a further assessment by Mr Spiteri (‘the Spiteri assessment’),[12] the Respondent accepted that the Applicant is entitled to additional classes of registration as a Domestic Builder (see paragraph 6 above). However, the Respondent maintained that the Applicant’s registration in New Zealand is not equivalent to Domestic Builder (Unlimited) or Commercial Builder (Limited).[13]
[7] Exhibit R1 24.
[8] Ibid 16.
[9] Ibid 36.
[10] Ibid 38.
[11] Exhibit A1 6.
[12] Exhibit R2, Annexure, 29–37.
[13] Ibid [30].
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal is whether the occupation for which the Applicant was registered in New Zealand is equivalent to the occupations for which he now seeks registration in Victoria under his revised Notice within the meaning of s 28 of the TTMR Act.
Applicant’s contentions
In his revised Notice dated 26 September 2024, the Applicant maintained that he is entitled to the following qualifications under the TTMR Act:[14]
(a)Domestic Builder (Unlimited): subject to the condition ‘not to use any construction methods or materials that contain and/or involve External Plastering, Brick and Block laying’; and
(b)Commercial Builder (Limited): subject to the condition ‘not to use any construction methods or materials that contain or involve External Plastering, Brick and Block laying’.
[14] Exhibit A1 6.
The Applicant relies upon his LBP – Carpentry as provided for under the Building Act 2004 (NZ) (‘Building Act (NZ’)) as demonstrating his ability to meet the competencies for this licence class.
The Applicant also sought registration in the licence class of ‘metal roofing systems’, despite not seeking such registration at the time of his original notice on 12 January 2024 which is a requirement under s 18 of the TTMR Act. At the hearing of this matter, the Applicant did not press his application for registration in this class and it is not considered further by this Tribunal.
Respondent’s contentions
The Respondent contends that the LBP – Carpentry licence class does not entitle the Applicant to registration as either Domestic Builder (Unlimited) or Commercial Builder (Limited) under the Victorian legislation.[15] The Respondent accepts that the Applicant is entitled to be granted registration in the Domestic Builder (Limited) classes as described at paragraph 6 above, but otherwise maintains the legislation does not permit the Applicant to be registered as a Domestic Builder (Unlimited) or Commercial Builder (Limited).[16]
[15] Exhibit R2 [62.2].
[16] Exhibit R2 [62].
LEGISLATIVE FRAMEWORK (MUTUAL RECOGNITION)
Trans-Tasman Mutual Recognition Act 1997 (Cth)
Section 3 of the TTMR Act sets out its ‘Principal purpose’:
(1)The principal purpose of this Act 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 recognising within Australia regulatory standards adopted in New Zealand regarding goods and occupations.
(2)The legislation is as contemplated by the Trans‑Tasman Mutual Recognition Arrangement entered into on 9 July 1996 between the Commonwealth of Australia, New Zealand, the States of New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania, the Australian Capital Territory and the Northern Territory.
Part 3 of the TTMR Act deals with ‘Occupations’. Relevantly, s 15(2) provides that Part 3 ‘deals with the ability of a person who is registered in connection with an occupation in New Zealand to carry on an equivalent occupation in Australia’. Section 16 sets out the Trans-Tasman mutual recognition principle.
Section 18(1) provides that:
A person who is registered in New Zealand for an occupation may lodge a written notice with the local registration authority of an Australian jurisdiction for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the Trans‑Tasman mutual recognition principle.
Section 19(1) creates an ‘Entitlement to registration’ as follows:
A person who lodges a notice under section 18 with a local registration authority of an Australian jurisdiction is entitled to be registered in the equivalent occupation, as if the law of the jurisdiction that deals with registration expressly provided that registration in New Zealand is a sufficient ground of entitlement to registration.
Section 19(5) permits the local registration authority to impose conditions on registration as follows:
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 New Zealand or that are necessary to achieve equivalence of occupations.
Section 22(1)(c) provides that a local registration authority ‘may refuse the grant of registration if … 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’.
The equivalence of occupations is to be determined in accordance with pt 3, div 4 of the TTMR Act. The ‘General principle’ provided for at s 28 states:
(1) An occupation for which persons may be registered in New Zealand is taken to be equivalent to an occupation for which persons may be registered in an Australian jurisdiction if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
(2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different participating jurisdictions.
‘Occupation’ is defined in s 4 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 a specialisation in any of the above in which registration may be granted.
Section 33 of the TTMR Act provides that a decision of a local registration authority may be reviewed by an Australian Tribunal.
Mutual Recognition Act 1992 (Cth)
The Mutual Recognition Act 1992 (Cth) (‘MR Act’) is a similar scheme which allows for the mutual recognition of occupations between States and Territories in Australia.
The Respondent contends that the authorities regarding the MR Act are relevant to the Tribunal’s application of the TTMR Act.[17] The Tribunal agrees with this contention. The relevant authorities will be examined further below.
[17] Exhibit R2 [21].
LEGISLATIVE FRAMEWORK (NEW ZEALAND)
Building Act 2004 (NZ)
The Applicant holds registration as a ‘Licensed Building Practitioner – Carpentry’ under the Building Act (NZ).[18]
[18] Ibid [32]
Section 84 of the Building Act (NZ) provides that:[19]
All restricted building work must be carried out or supervised by a licensed building practitioner who is licensed to carry out or supervise the work.
[19] Exhibit A1 322
Section 85(1) provides that:
A person who is not a licensed building practitioner commits an offence if he or she carries out restricted building work while not supervised by a licensed building practitioner who is licensed to carry out or supervise the carrying out of restricted building work of that kind.
Similarly, s 85(2) provides that:[20]
A person who is a licensed building practitioner commits an offence if he or
she—
(a)carries out restricted building work and is not licensed to carry out restricted building work of that kind; or
(b)supervises restricted building work and is not licensed to carry out or supervise the carrying out of restricted building work of that kind.
[20] Ibid.
‘Restricted building work’ is defined in s 7 as any building work declared by the Governor-General to be ‘restricted building work.’[21]
[21] Ibid 255.
The Building (Definition of Restricted Building Work) Order 2011 (NZ) provides a definition of ‘restricted building work’ for the purposes of the Act as:[22]
(a)The construction or alteration of the primary structure of a house or a small-to-medium apartment building, or the external moisture-management system of a house or a small-to-medium apartment building;
(b)Of the following kinds: bricklaying or blocklaying work, carpentry work, external plastering work, foundations work, and roofing work; and
(c)Where the work is of a kind for which a licensing class to carry out or supervise the work has been designated under s 285 of the Building Act (NZ).
[22] Exhibit R2, Annexure, 26.
A ‘small-to-medium apartment building’ means a building that contains only two or more residential units or residential facilities, and has a maximum calculated height of less than 10 m.[23]
[23] Building (Definition of Restricted Building Work) Order 2011 (NZ) cl 3: <>
Section 285 of the Building Act (NZ) provides that the Governor-General may designate a licensing class or classes for carrying out or supervising particular types of building work or building inspection work.[24]
[24] Exhibit A1 524.
The Building (Designation of Building Work Licensing Classes) Order 2010 (NZ) prescribes the licensing classes designated and building work that licensed building practitioners (‘LPBs’) are licensed to carry out or supervise.[25] Clause 4 provides for nine licensing classes. An LPB who is licenced in a class, is licensed to carry out or supervise building work of the type specified in that row.[26] There are nine licensing classes as follows: Design, Site, Carpentry, Roofing, External plastering, Bricklaying and blocklaying, Foundations, Concrete structure, and Steel structure.[27]
[25] Ibid 50–1.
[26] Ibid 50.
[27] Ibid 50–1.
Relevantly for class of Carpentry, a person licensed under this class can undertake carpentry for any building that is a category 1, category 2, or category 3.[28]
[28] Exhibit A1 51.
The definitions for category 1 building, category 2 building and category 3 building are set out in the Schedule.[29]
[29] Ibid 54–5.
Section 353(1) of the Building Act (NZ) provides that there must be rules containing the following minimum standards (LPB standards):[30]
(a)minimum standards of competence (including standards relating to knowledge and skills) that must be met for each licensing class; and
(b)minimum standards for demonstrating current competence for each licensing class that must be met for continued licensing, and for the frequency at which assessments of current competence must be carried out.
[30] Ibid 549.
The Licensed Building Practitioner Rules 2007 (‘LBP Rules’) set out the minimum standard of competence required for each licence class by reference to the competencies set out in Schedule 1 to the Rules.[31] Schedule 1 sets out the competencies that make up the minimum standard for each licence class, and the performance indicators that the Registrar will have regard to when determining whether a competency has been met.[32] The competencies cover the nine license classes set out above.
[31] Ibid 1166.
[32] Ibid 1185–215.
The Carpentry Licence Class Competencies contain four competencies and their respective performance indicators.[33] Section 314B of the Building Act (NZ) provides an LBP must (a) not misrepresent his or her competence; and (b) carry out or supervise building work only within his or her competence.[34]
[33] Ibid 1197–9.
[34] Ibid 536.
LEGISLATIVE FRAMEWORK (VICTORIA)
Building Act 1993 (Vic)
Part 11 of the of the Building Act 1993 (Vic) (‘the Building Act (Vic)’) deals with the Registration of building practitioners.[35] Section 171 provides that building practitioners (including builders) may be registered by the VBA ‘in a category or class’.
[35] Building Act 1993 (Vic): <>
The classes of building practitioners in each category (and the qualifications for each class) are prescribed in the Building Regulations 2018 (Vic) at sch 9, reg 257 (‘Building Regulations (Vic)’).
Section 169(1) of the Building Act (Vic) provides that a person who is not registered in a particular category or class of building practitioner under this Part must not represent or imply that the person is registered in that category or class of registration. Section 169A provides the prohibition but in relation to domestic building work.
Section 169EA provides that a person must not carry out a type of building work that is prescribed for the purposes of this section unless the person is registered and that registration authorities the carrying out of building work.
Section 169F provides that a person must not carry out domestic building work under a major domestic building contract unless the person is a registered builder or a licenced building employee.
Part 3, div 3 deals with ‘Decisions on building permits and other matters’. Relevantly, s 24A(1)(a) provides that a building surveyor must not issue a building permit in relation to building work unless the relevant building surveyor is satisfied that the building work is to be carried out by a person who is specified under s 24B as a builder for that work. Section 24B provides that if the cost of building works exceed the prescribed amount (the prescribed amount being $10,000), the builder must be a registered building practitioner, the building owner, an architect, or an endorsed building engineer.[36]
Building Regulations 2018 (Vic)
[36] Building Regulations 2018 (Vic) (‘Building Regulations (Vic)’) reg. 36B: <>
Schedule 9 of the Building Regulations (Vic) prescribe classes of building practitioners and prescribed qualifications.
Clause 6 of sch 9 identifies the classes of building practitioner in respect of the category of builder as follows:
(a)Commercial builder has eleven classes;[37]
(b)Domestic builder has thirty classes;[38] and
(c)Demolisher has three classes.[39]
[37] Building Regulations (Vic) (n 36) sch 9 cl 6 (a)–(k).
[38] Ibid sch 9 cl 6 (l)–(zo).
[39] Ibid sch 9 cl 6 (zp)–(zr).
Regulation 261 provides that a person who is registered in a class of domestic builder set out in column 2 of the table in sch 12 is authorised to carry out the domestic building work set out in column 3 of that table corresponding to that class of domestic builder.
Schedule 12 sets out the domestic building work authorised to be carried out by registered domestic builders.
The works authorised to be carried by commercial builders is not defined in the regulations.[40] Instead guidance is found in the VBA’s guide “What is commercial building work?” which states that:[41]
A person registered as a Commercial Builder is responsible for managing and arranging the carrying out of all components of building work for the construction of commercial buildings and structures (class 2–9 buildings and structures, and class 10b buildings not associated with a domestic building, as classified by the Building Code of Australia), or as classes of that work, such as structural fit-out work, non-structural fit-out work, structural landscaping work, construction of shade structures work and the erection of signs work.
[40] Exhibit R2 [52].
[41] Exhibit A1 145.
ANALYSIS
The Respondent has identified from the relevant authorities five distinct steps which provide assistance in determining equivalence of occupation:[42]
The first is to identify the occupation for which the person is registered in [New Zealand]. This is followed [second] by the identification of the activities authorised to be carried out under that registration. The third step is to identify an occupation in [Australia] for which a person may be registered and fourth to ascertain the activities to be carried out under that registration. A comparison is then made between the activities authorised to be carried out under each of the registrations to determine whether those activities are substantially the same. That is the fifth step. Part of that fifth step is to consider whether conditions should be imposed on registration to achieve equivalence between those occupations.
[42] Exhibit R2 [22], citing Re Rowe and New South Wales Police Service (1997) 47 ALD 442, 444 and Victorian Building Authority v Cau (2023) 298 FCR 319, 330 [42] (‘Cau’).
The Tribunal agrees that this is the correct approach and has applied each of these five steps in the below analysis.
First step: Identifying the occupation for which the person is registered in New Zealand
Mutual recognition only applies where there is a registration requirement for an occupation.[43] The definition of ‘occupation’ under s 4 of the TTMR Act means ‘an occupation, trade, profession or calling of any kind that may be carried on only by registered persons…’[44]
[43] Ibid [24] citing Cau v Victorian Building Authority [2022] FCA 45, [7] (Colvin J); quoted with approval in Cau (n 42) 329 [38].
[44] Ibid.
The Respondent relied upon Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence,[45] in which Justice French (as his Honour then was) stated that the occupation for which a person is registered is identified ‘by reference to the terms of the “registration” … informed by or read with the statutory provisions under which such registration is effected’.[46] Reliance is also placed upon the objective of the mutual recognition scheme as identified by his Honour:[47]
The objective of mutual recognition is to allow the legal entitlement to carry on an occupation in one State to be recognised and the like legal entitlement for an equivalent occupation conferred in the second State.
[45] (2000) 100 FCR 255 (‘Lawrence’).
[46] Exhibit R2 [25], citing ibid 281 [64].
[47] Lawrence (n 45) [65].
Those statements were endorsed by Justice Kiefel (as her Honour then was) in Medical Board of Queensland v Renton.[48] Justice Kiefel held:[49]
In my respectful view the requirements of equivalence of occupation under the Mutual Recognition Act are not met by considering whether a person may carry out in the first State activities associated with the profession for which registration is sought in the second State. The enquiry is as to whether the statute under which registration is granted in the first State itself authorises the activities of the profession in the second State. For the mutual recognition principle to operate, an affirmative answer is required.
[48] (2006) 152 FCR 566.
[49] Ibid [31].
Her Honour also held, consistent with Justice French’s views in Lawrence that the objective of the mutual recognition principle does not prevent a conclusion that there is no equivalent occupation. Indeed, her Honour held:[50]
The mutual recognition principle has no operation where one State does not provide for the registration of an occupation or profession. The Mutual Recognition Act does however recognise, in the definition of ‘occupation’, that there may be registration granted for a specialty as a separate occupation or profession. Where State legislation does provide for registration of a specialty as a separate occupation the mutual recognition scheme may have operation.
[50] Ibid [33].
The Applicant in this case holds registration as a ‘Licensed Building Practitioner – Carpentry’ under the Building Act (NZ).
As described above, s 84 of the Building Act (NZ) provides that all restricted building work must be carried out or supervised by a licensed building practitioner who is licensed to carry out or supervise the work.
The Respondent contends that the occupation for which the Applicant is registered is limited by the concept of ‘restricted building work’. The Tribunal agrees with this contention. As set out by the authorities referred to above, the enquiry as to what is authorised in the first State is paramount. Justice Kiefel held that the Tribunal’s approach in Renton in considering the second state’s legislation was in error:
[29]The approach of the Tribunal was to consider, in the first place, what was authorised by the New South Wales Act. It observed that s 99 of that Act authorises the practice of medicine and this was expressed to include surgery. It then reasoned that it may be taken to authorise other specialities. At another point the Tribunal observed that a person would not infringe the Act by carrying on the profession of intensivist in New South Wales under a general registration. If a person could undertake that work it could be said that the New South Wales Act authorises the same activities as the Queensland Act with respect to an intensivist.
[30]There are a number of difficulties in the process of construction undertaken by the Tribunal, in my respectful view. Section 99 of the New South Wales Act may authorise the undertaking of surgery in conjunction with the practice of medicine, but it does not recognise surgery, or any other specialty, as a distinct occupation or profession for which registration may be granted. It may be seen from the provisions relating to conditional registration that it recognises that some persons may hold qualifications from specialist colleges or institutions as specialists, but it does not provide for their registration as such. No legal entitlement to carry on the profession of intensivist or other specialty is provided by the system of registration under the New South Wales Act.
It follows therefore that the Applicant’s occupation as a Licensed Building Practitioner – Carpentry means he registered to carry out ‘restricted building work’. The next step in the process is to identify the activities for which the Applicant is registered to carry out New Zealand.
Second step: Identifying the activities for which the person is registered in New Zealand
The concept of ‘restricted building work’ is defined by s 7 of the Building Act (NZ) and related legislative instruments as follows:[51]
restricted building work means any building work that is—
(a)building work of a kind declared by the Governor-General by Order in Council to be restricted building work (see subsection (2)); or
(b)design work of a kind declared by the Governor-General by Order in Council to be restricted building work (see subsection (2))
[51] Exhibit A1 255.
The kinds of building work and design work declared to be restricted building work are contained in the Building (Definition of Restricted Building Work) Order 2011 (NZ).[52]
[52] Exhibit R2, Annexure, 23–8.
Section 285 of the Building Act (NZ) provides that the Governor-General may designate a licensing class or classes for carrying out or supervising particular types of building work or building inspection work.[53] Those classes are provided for in cl 4 of the Building (Designation of Building Work Licensing Classes) Order 2010 (NZ).[54] Carpentry is one of these classes.
[53] Exhibit A1 524.
[54] Ibid 50-1.
The LPB Rules set out the competencies and performance indicators for the carpentry licence class in sch 1 under ‘Carpentry Licence Class Competencies’.[55]
[55] Ibid 1197–9.
The LPB Rules provide at cl 4:[56]
(1)The minimum standard of competence for a class of licence is meeting all of the competencies set out for that class of licence in Schedule 1.
(2)In determining whether a person meets a competency, regard must be had to the extent to which the person meets the performance indicators set out for that competency in Schedule 1.
[56] Ibid 1171.
The Respondent contends that the activities of the occupation LBP – Carpentry, for the purpose of s 28(1) of the TTMR Act, are the competencies and performance indicators set out in sch 1 of the LBP Rules, to the extent that those activities fall within the definition of ‘restricted building work’.[57]
[57] Exhibit R2 [41].
The four competencies under the Carpentry licence class are:[58]
(a)Competency 1 – Demonstrate knowledge of the regulatory environment of the building construction industry.
(b)Competency 2 – Demonstrate knowledge of current building and trade practice.
(c)Competency 3 – Carry out planning and scheduling for carpentry work.
(d)Competency 4 – Carry out Carpentry work.
[58] Exhibit A1 1197.
Competency 3 and 4 have the following performance indicators, which in the Tribunal’s view form the activities for which the Applicant is registered in New Zealand.[59] They are:
[59] Ibid 1198–9.
(a)Competency 3 – Carry out planning and scheduling for carpentry work:
(i)Read and interpret working drawings, specifications, programme schedules and quantity lists.
(ii)Order and coordinate material and supply.
(b)Competency 4 – Carry out Carpentry work:
(i)Prepare site for construction.
(ii)Construct concrete foundations and/or pile foundations.
(iii)Construct concrete structures.
(iv)Construct, set out and erect floor, wall and roof frames and trusses and/or install prefabricated elements.
(v)Prepare works to receive pre-cast/pre-fabricated and in-situ elements and install.
(vi)Install light weight profiled metal roofing.
(vii)Fix exterior claddings.
(viii)Set out, install, finish and make weathertight exterior joinery.
(ix)Construct timber stairs, ramps and barriers.
(x)Install internal linings, panelling and mouldings.
(xi)Install internal fittings, finishings and hardware.
(xii)Construct decks, balconies and verandahs.
(xiii)Install insulation systems.
The above competencies are also set out in the Licensed Building Practitioners Guide which describe the Carpentry Licence Class Competencies.[60] That Guide also states that Carpentry LBPs can:[61]
· carry out or supervise Carpentry work on any category of building
· construct foundations without a Foundations licence
· install lightweight profiled metal roofing without a Roofing licence.
[60] Exhibit A1 1241–2.
[61] Ibid 1242.
The Spiteri assessment also confirms that the above competencies reflect the scope of work that that an LBP – Carpentry is licenced to carry out.[62]
[62] Exhibit R2, Annexure, 31–2.
The Tribunal finds that the activities an LBP – Carpentry is registered to carry out is as reflected in paragraphs 69 and 70 above.
Third step: Identifying an occupation for which a person may be registered in Victoria
The Building Regulations (Vic) prescribe commercial and domestic builder classes for which a person may be registered in Victoria.
The occupation of Domestic Builder (Unlimited) is provided for in sch 9, cl 6 of the Building Regulations (Vic). The class of Domestic Builder (Unlimited) provides authorisation for ‘carrying out all components of domestic building work’.[63] ‘Domestic building work’ is defined in s 3(1) of the Domestic Building Contracts Act 1995 (Vic) to mean ‘any work referred to in section 5 that is not excluded from the operation of this Act by section 6’.[64]
[63] Building Regulations (Vic) (n 36) sch 12 item 1.
[64] Domestic Building Contracts Act 1995 (Vic): <>
Section 5 provides for a wide variety of work that can be carried on a home and associated work in relation to the construction or erection of a building. Section 6 provides that the Domestic Building Contracts Act (Vic) does not apply to work in relation to a building intended to be used only for business purposes.
The occupation of Commercial Builder (Limited) is also provided for in sch 9, cl 6 of the Building Regulations (Vic). The Building Regulations (Vic) prescribe eleven ‘commercial builder’ classes. Unlike the occupation of ‘domestic builder’, there is no such definition for ‘commercial builder’ as described above. The nature of ‘commercial building work’ is classified by the Building Code of Australia and is as set out in the VBA guide ‘What is commercial building work’.[65]
[65] Exhibit R2, Annexure, 36; Exhibit A1 145.
The Tribunal finds that the occupations of Domestic Builder (Unlimited) and Commercial Builder (Limited) are as reflected above.
Fourth step: Identifying the activities to carried out under that registration
A person who holds registration as a Domestic Builder (Unlimited) is permitted to carry out ‘all components of domestic building work’.[66] The scope of activities permitted by the Domestic Building Contracts Act (Vic) include:[67]
[66] Building Regulations (Vic) (n 36) sch 12 item 1.
[67] Domestic Building Contracts Act 1995 (Vic) s 5.
(a)the erection or construction of a home, including—
(i) any associated work including, but not limited to, landscaping, paving and the erection or construction of any building or fixture associated with the home (such as retaining structures, driveways, fencing, garages, carports, workshops, swimming pools or spas); and
(ii) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage to the home or the property on which the home is, or is to be;
(b)the renovation, alteration, extension, improvement or repair of a home;
(c)any work such as landscaping, paving or the erection or construction of retaining structures, driveways, fencing, garages, workshops, swimming pools or spas that is to be carried out in conjunction with the renovation, alteration, extension, improvement or repair of a home;
(d)the demolition or removal of a home;
(e)any work associated with the construction or erection of a building—
(i) on land that is zoned for residential purposes under a planning scheme under the Planning and Environment Act 1987; and
(ii) in respect of which a building permit is required under the Building Act 1993;
(f)any site work (including work required to gain access, or to remove impediments to access, to a site) related to work referred to in paragraphs (a) to (e);
(g)the preparation of plans or specifications for the carrying out of work referred to in paragraphs (a) to (f);
(ga)the managing or arranging of the carrying out of work referred to in paragraphs (a) to (g);
(h)any work that the regulations state is building work for the purposes of this Act.
A person who holds registration as a Commercial Builder (Limited) is permitted to carry out the following activities in respect of each of the limited commercial building classes as provided for in sch 9, cl 6 of the Building Regulations (Vic):[68]
[68] Sch 9 cl 6(b)–(k).
·Commercial builder (limited to the construction of low rise building work);
·Commercial builder (limited to the construction of medium rise building work);
·Commercial builder (limited to the construction shade structures work);
·Commercial builder (limited to the erection of signs work);
·Commercial builder (limited to the installation of blinds and awnings work);
·Commercial builder (limited to non-structural fit-out work);
·Commercial builder (limited to steel erection work);
·Commercial builder (limited to structural fit-out work);
·Commercial builder (limited to structural landscaping work); and
·Commercial builder (limited to waterproofing work).
The Tribunal finds that the activities to be carried out under the registration of Domestic Builder (Unlimited) and Commercial Builder (Limited) are as stated above.
Fifth step: Comparison of the activities to be carried out under each occupation
The Applicant’s occupation in New Zealand is a limited to ‘Licensed Building Practitioner – Carpentry’. He seeks registration in Victoria as a:
·Domestic Builder (Unlimited) with a condition ‘not to use any construction methods or materials that contain and/or involve External Plastering, Brick and Block laying’; and
·Commercial Builder (Limited) with a condition ‘not to use any construction methods or materials that contain or involve External Plastering, Brick and Block laying’.
A comparison of the activities to be carried out under each occupation follows.
LBP Carpentry v Domestic Builder (Unlimited)
An LBP – Carpentry is limited to carry out or supervise restricted building work in the class of carpentry only. Section 85(2) of the Building Act (NZ) provides that a person who is a licenced building practitioner commits an offence if they carry out or supervise restricted building work for which they are not licensed.[69]
[69] Exhibit A1 322.
Other LPB licence classes are Design, Site, Roofing, External plastering, Bricklaying and blocklaying, Foundations, Concrete structure, and Steel structure.
A Domestic Builder (Unlimited) on the other hand is authorised to ‘carrying out all components of domestic building work’.[70]
[70] Building Regulations (Vic) (n 36) sch 12 item 1.
The Respondent contends that the activities of these two occupations authorised to be carried out under each registration is not ‘substantially the same’ as required by s 28(1) of the TTMR Act.[71]
[71] Exhibit R2 [49].
The Tribunal accepts this submission. The activities of Domestic Builder (Unlimited) are clearly far broader than the activities authorised in the class of LBP – Carpentry. This is consistent with the findings of the Spiteri assessment which states as follows:[72]
… [a] person registered in the class of Domestic Builder (unlimited) is responsible for carrying out or managing or arranging the carrying out of all components of domestic building work for the construction, renovation, improvement or maintenance of a home (class 1, 2, and 4 buildings, and associated class 10 buildings).
The NZ licencing scheme consists of seven registrations or licences based upon types of works. Carpentry is one of these seven registrations, a person holding a carpentry registration or licence may only undertake or manage only this component of construction work. They cannot supervise or carry out work any other categories unless licenced in those categories, therefor a NZ carpenter licence or registration is not unlimited in scope and therefore not equivalent to the Victorian Domestic Builder (unlimited) registration.
[72] Ibid, Annexure, 37.
LBP Carpentry v Commercial Builder (Limited)
As noted above, an LBP – Carpentry is limited to carrying out or supervising restricted building work in the class of carpentry only. ‘Restricted building work’ is defined in the Building Act (NZ) as works carried out on a house or the external moisture-management system of a small-to-medium apartment building.[73] This definition would be classified as ‘domestic building work’ for the purposes of the Building Act (Vic) and the Domestic Building Contract Act 1995 (Cth).
[73] Exhibit A1 255.
A Commercial Builder (Limited) is limited to certain classes of work as set out above. The qualifications for registration of each class are set out in sch 9, pt 3 of the Building Regulations (Vic).
The Respondent submits that because a Commercial Builder (Limited) class necessarily involves the construction of commercial building and structures, the Applicant’s LBP – Carpentry occupation is not ‘substantially the same’ as the activities of a Commercial Builder (Limited) in Victoria.[74]
[74] Exhibit R2 [55].
The Tribunal accepts this submission. The activities permitted to be carried out by a Commercial Builder (Limited) (in any class) are not substantially the same as the activities authorised in the class of LBP – Carpentry. This is because the Applicant, as an LBP – Carpentry, is not permitted to carry out commercial building works within the definition of the New Zealand regime. A Commercial Builder (Limited) in Victoria is so authorised, therefore the activities authorised to be carried out under each regime are not substantially the same.
This is consistent with the findings of the Spiteri assessment which provides as follows:[75]
A person registered as a Commercial Builder is responsible for managing and arranging the carrying out of all components of building work for the construction of commercial buildings and structures (class 2–9 buildings and structures, and class 10b buildings not associated with a domestic building, as classified by the Building Code of Australia), or classes of that work, such as:
Commercial building is not considered restricted building work in NZ. There is no comparable New Zealand commercial building license to complete a comparison against. The NZ LBP Carpentry licence allows a practitioner to work on restricted building work which relates to residential construction only, and a licence is not required to undertake commercial building work in New Zealand, therefor the VBA is not obliged to consider commercial building registration for LBPs under the Trans-Tasman Mutual Recognition Act.
[75] Exhibit R2, Annexure, 36.
Can equivalence be achieved through the imposition of conditions?
The question as to whether equivalence can be achieved through the imposition of conditions was considered by the High Court in Victorian Building Authority v Andriotis (‘Andriotis’).[76] In Andriotis, the High Court was considering s 169(2)(e) of the Building Act (Vic) which required an applicant to be covered by insurance before they could be registered as a building practitioner.
[76] (2019) 268 CLR 168; [2019] HCA 22 (‘Andriotis’).
The High Court considered the powers under s 20(5) of the MR Act in regard to the imposition of insurance conditions by a local registration authority.
As noted by the Respondent, Kiefel CJ, Bell and Keane JJ observed that the MR Act ‘does not suggest as necessary any further consideration of matters which it may be expected the first State has addressed when granting registration, such as fitness or suitability for the occupation’.[77]
[77] Exhibit R2 [24] n 22, citing Andriotis (n 76) 178 [26].
The Applicant seeks registration as a Domestic Builder (Unlimited) with conditions and as a Commercial Builder (Limited) with conditions.
The conditions proposed by the Applicant are the same, that is, ‘not to use any construction methods or materials that contain or involve External Plastering, Brick and Block laying’.[78]
[78] Exhibit A1 6.
These conditions appear to be derived from the Building (Definition of Restricted Building Work) Order 2011 (NZ) which provides that restricted building work for the purposes of the Building Act (NZ) is building work that is:[79]
[79] Building (Definition of Restricted Building Work) Order 2011 (NZ) cl 5.
(2) …
(a) the construction or alteration of—
(i)the primary structure of a house or a small-to-medium apartment building; or
(ii)the external moisture-management system of a house or a small-to-medium apartment building; and
(b) of a kind described in subclause (3); and
(c)of a kind for which a licensing class to carry out or supervise the work has been designated by Order in Council under section 285 of the Act.
(3) The kinds of building work referred to in subclause (2)(b) are—
(a) bricklaying or blocklaying work:
(b) carpentry work:
(c) external plastering work:
(d) foundations work:
(e) roofing work.
The Respondent contends that equivalence cannot be achieved through the imposition of conditions.[80]
[80] Exhibit R2 [56].
In regard to Domestic Builder (Unlimited), the Respondent contends ‘that it would be incongruous to impose conditions which restrict the work permitted under an otherwise-unlimited domestic builder registration — particularly in circumstances where the Building Act (Vic) allows for the grant of multiple limited domestic builder registrations’.[81]
[81] Ibid [50.2].
In regard to Commercial Builder (Limited), the Respondent contends that ‘the scope of the activities of each occupation is too divergent to be reconciled by conditions: the LBP –Carpentry registration authorises the carrying on of restricted building work (which is residential work) within the competence of the carpentry licence class, whereas the Victorian occupation involves commercial building work (involving a different scale and type of buildings)’.[82]
[82] Exhibit R2 [56].
The Tribunal agrees that equivalence cannot be achieved through the imposition of conditions as sought by the Applicant for the reasons advanced by the Respondent, and for the reasons identified in the Spiteri assessment.
As noted above, a Domestic Builder (Unlimited) in Victoria is responsible for carrying out all components of domestic building work. This is the broadest category of Domestic Builder available in Victoria. The New Zealand licensing scheme consists of seven licence classes, of which carpentry is one. An LBP –Carpentry can only carry out or supervise works in that category. It is not unlimited in scope like the Domestic Builder (Unlimited) class. In the Tribunal’s view, equivalence cannot be achieved through the imposition of conditions.
Further, commercial building is not considered restricted building work in New Zealand.[83] As noted in the Spiteri assessment ‘[t]here is no comparable New Zealand commercial building licence…’[84] In the Tribunal’s view it is not possible to achieve equivalence through the imposition of conditions. Commercial building work in Victoria is, by its very nature, non-residential. An LBP – Carpentry can only carry-on restricted building work, which is residential. The Tribunal’s view is that equivalence cannot be achieved through the imposition of conditions.
[83] Ibid, Annexure, 36.
[84] Ibid.
What is within the scope of an LBP – Carpentry are the foregoing Domestic Builder Limited classes as identified by the Spiteri assessment and as set out in the Building Regulations (Vic):[85]
(a)Domestic Builder Limited to carpentry. The domestic building work authorised to be carried out in this class is at sch 12, item 21 of the Building Regulations (Vic).
(b)Domestic Builder Limited to construction of shade structures. The domestic building work authorised to be carried out in this class is at sch 12, item 7 of the Building Regulations (Vic).
(c)Domestic Builder Limited to site works involved in relocating a dwelling. The domestic building work authorised to be carried out in this class is at sch 12, item 18 of the Building Regulations (Vic).
(d)Domestic Builder Limited to re-stumping and re-blocking. The domestic building work authorised to be carried out in this class is at sch 12, item 19 of the Building Regulations (Vic).
(e)Domestic Builder Limited to construction of footings and slab work. The domestic building work authorised to be carried out in this class is at sch 12, item 11 of the Building Regulations (Vic).
(f)Domestic Builder Limited to earthworks and excavation work. The domestic building work authorised to be carried out in this class is at sch 12, item 10 of the Building Regulations (Vic).
(g)Domestic Builder Limited to insulation work. The domestic building work authorised to be carried out in this class is at sch 12, item 27 of the Building Regulations (Vic).
(h)Domestic Builder Limited to sheet plastering. The domestic building work authorised to be carried out in this class is at sch 12, item 23 of the Building Regulations (Vic).
[85] Ibid, Annexure, 34-7.
SUMMARY OF ANALYSIS
The Applicant is entitled to be granted registration in the classes of:
(a)Domestic Builder Limited to carpentry;
(b)Domestic Builder Limited to construction of shade structures;
(c)Domestic Builder Limited to site works involved in relocating a dwelling;
(d)Domestic Builder Limited to restumping and re-blocking;
(e)Domestic Builder Limited to construction of footings and slab work;
(f)Domestic Builder Limited to earthworks and excavation work;
(g)Domestic Builder Limited to insulation work; and
(h)Domestic Builder Limited to sheet plastering;
The Applicant is not eligible for registration in the class of Domestic Builder (Unlimited) and Commercial Builder (Limited) with conditions as proposed by the Applicant.
ANCILLIARY MATTER
Costs
In his (undated) written submissions, the Applicant sought an application for costs ‘due to the onerous conditions and unreasonable timeframes, loss of income, inability to trade at full capacity, the inability and uncertainty around when this matter will be resolved’.[86]
[86] Exhibit A1 6.
The Respondent contends that each party ought to bear its own costs, ‘as is the usual position in the Tribunal’.[87]
[87] Exhibit R2 [60].
As noted by the Respondent, s 34 of the TTMR Act provides that an Australian Tribunal may order a party in proceedings before it to pay costs if the party has acted unreasonably. This power is identical to s 35 of the MR Act which also permits the Tribunal to order a party to pay costs.
The issue of costs was considered by this Tribunal in Little and Victorian Bar Inc:[88]
…the usual position of parties in the Tribunal is that they bear their own costs and have no entitlement to recover their costs from the other side. In Re Wearne and NSW Police Service (1994) 34 ALD 315 the power to award costs under s 35 of the Mutual Recognition Act 1992 (Cth) [8] was described by Deputy President McMahon as an unusual power and not one to be exercised lightly. We respectfully agree.
[88] [2024] AATA 2852 [29].
There is no evidence before the Tribunal that the Respondent has acted unreasonably in this case. Indeed, the large volume of correspondence exhibited in this matter demonstrates that the Respondent has acted with reasonableness to try and bring these matters to a head.[89] It is accepted that the Respondent has varied its position on the original decision, but there is no evidence of unreasonableness in doing so.
[89] See, eg, Exhibit A1 20–47.
The Applicant’s application for costs in this proceeding is refused.
DECISION
The decision of the Tribunal is that the Respondent’s decision of 1 February 2024 be varied. The Applicant is to be granted registration in the classes of:
(a)Domestic Builder Limited to carpentry;
(b)Domestic Builder Limited to construction of shade structures;
(c)Domestic Builder Limited to site works involved in relocating a dwelling;
(d)Domestic Builder Limited to re-stumping and re-blocking;
(e)Domestic Builder Limited to construction of footings and slab work;
(f)Domestic Builder Limited to earthworks and excavation work;
(g)Domestic Builder Limited to insulation work; and
(h)Domestic Builder Limited to sheet plastering.
It follows that the Applicant’s application for registration as Domestic Builder (Unlimited) with conditions and Commercial Builder (Limited) with conditions is refused.
I certify that the preceding 115 (one-hundred-and-fifteen) paragraphs are a true copy of the reasons for the decision herein of General Member K. Thornton
..............................[sgd].....................................
Associate
Dated: 6 February 2025
Date of hearing: 6 December 2024 Representative for the Applicant: Mr Michael Hughes Snr Counsel for the Respondent: Ms Alice Wharldall Solicitors for the Respondent: Ms Amrita Maharaj, Senior Lawyer, Victorian Building Authority
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