Kaschula and Director-General, Department of Services, Technology and Administration (NSW Fair Trading)

[2011] AATA 781

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 781

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2499

GENERAL ADMINISTRATIVE DIVISION		)
Re		THEODOR KASCHULA

Applicant

And DIRECTOR-GENERAL, DEPARTMENT OF SERVICES, TECHNOLOGY AND ADMINISTRATION (NSW FAIR TRADING)  

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member  

Date4 November 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review   

.................[Sgd].............................

Senior Member

CATCHWORDS

MUTUAL RECOGNITION – whether applicant entitled to be granted registration in New South Wales as an electrical contractor by reason of his registration as an electrical fitter in Queensland – no equivalence of occupation – decision under review affirmed

Electrical Safety Act 2002 (Qld) ss 20, 59

Electrical Safety Regulation 2002 (Qld) reg. 25

Mutual Recognition Act 1992 (Cth), ss 32, 34

Mutual Recognition (New South Wales) Act 1992 (NSW), ss 17, 23, 29, 31, 34

Medical Board of Queensland v Renton 152 FCR 566; [2006] FCA 947

REASONS FOR DECISION

4 November 2011 Dr P McDermott, RFD, Senior Member  

BACKGROUND

1. The applicant has a Queensland Electrical Work Licence which licenses him to perform work as an electrical fitter in Queensland. The applicant applied to have that registration mutually recognised in New South Wales. His application requested a Qualified Supervisor’s Certificate. On 8 June 2011 the respondent made a decision to refuse the application for a licence. This is the reviewable decision which is the subject of the application to this Tribunal. The Tribunal can review the decision pursuant to ss 31(1) and 34 of the Mutual Recognition (New South Wales) Act 1992 (NSW) and s 34 of the Mutual Recognition Act 1992 (Cth). This application was determined on the papers with the consent of the parties.

THE MUTUAL RECOGNITION PRINCIPLE

2. The mutual recognition principle is outlined in s 17(1) of the Mutual Recognition (New South Wales) Act 1992 which provides:

Themutual recognitionprinciple 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.

3.      The Mutual Recognition (New South Wales) Act 1992, under s 23(1)(c), provides as follows:

A local registration authority may refuse the grant of registration, if:

...

(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.

4.      The Mutual Recognition (New South Wales) Act 1992, under s 29(1), also provides that:

An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State 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).

5. It should also be mentioned that s 29(2) of the Mutual Recognition (New South Wales) Act 1992, allows conditions to be imposed on registrations,

… so as to achieve equivalence between occupations in different States.

PRINCIPLE OF EQUIVALENCE OF OCCUPATION

6.      The principle of equivalence of occupation under the mutual recognition principle has been discussed by Kiefel J in Medical Board of Queensland v Renton as follows[1]:

…, it is registration for an occupation in the State of original qualification that is the subject of recognition under the Mutual Recognition Act. The question which must be asked when a person invokes the provisions of that Act is – what is the occupation for which that person is registered in the first State? That question is to be answered by reference to the terms of the registration in the first State informed by, or read with, the statutory provisions under which registration is effected. The objective ofmutual recognitionis 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.

[1] 152 FCR 566 at 573-574; [2006] FCA 947 at [27].

REGISTRATION IN THE FIRST STATE

7.      Having regard to these observations of Kiefel J in Renton, it is important to have regard to the occupation for which the applicant is registered in the “first State” which is Queensland as well as the statutory provisions under which such registration is granted.

8. In Queensland there are two types of licence that are issued under s 59 of the Electrical Safety Act 2002 (Qld): an electrical work licence and an electrical contractor licence.

9. There is evidence before me (and I so find) that the applicant has a current electrical work licence as defined by s 20(1) of the Electrical Safety Act 2002 (Qld).[2] An electrical fitter licence is one of the eligible classes of electrical work licence: see Electrical Safety Regulation 2002 (Qld), reg. 25(c). The possession of this licence permits the performance of electrical equipment work such as assembling a switchboard and repairing an electric motor.[3]

[2] T3, fols 26-29.

[3] T1, fol 3.

10. There are other classes of licence that are issued in Queensland such as an electrical mechanic licence which is issued under s 59 of the Electrical Safety Act 2002 (Qld). This licence enables the holder of such a licence to perform all electrical work.[4] The applicant does not hold such a licence.

[4] T1, fol 3.

11.     The applicant asserts that at the end of 2010 the Queensland authorities agreed to give him what he states was “… an Electrical Mechanic permit to enable me to work as an Electrical Mechanic under the supervision of an Electrical Mechanic”.[5] However, the mutual recognition confirmation document from the Queensland licensing authority does not disclose that the applicant now holds such a permit or licence.[6]

[5] T2, fol 12.

[6] T4, fol 30.

EQUIVALENCE OF OCCUPATIONS

12.     Kiefel J in Renton remarked:

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.[7]

[7] 152 FCR 566 at 573-574; [2006] FCA 947 at [27].

13.     I am not satisfied that there is equivalence of occupation between the holder of an electrical fitter licence in Queensland and a Qualified Supervisor’s Certificate in New South Wales. The latter certificate enables the holder of that certificate to disconnect and reconnect fixed electrical equipment.[8] Certainly, in Queensland the holder of an electrical fitter licence would not be able to undertake such work.

[8] T9, fol 38.

14.     Ministers from two or more States may make a declaration that specified occupations are equivalent.[9] The Ministerial Declaration of 9 February 2007 declares that there is no equivalent occupation in New South Wales for the holder of a Queensland electrical fitter licence.[10] There has not been any legislation which has been passed after this declaration was made.

[9] Mutual Recognition Act 1992 (Cth) s 32.

[10] See Schedule 10 of the Ministerial Declaration of 9 Feb 2007.

15.     I accordingly do not consider that there is an occupation in New South Wales for which the applicant can be registered.          

16.     There is no material before me which enables me to be satisfied that equivalence of occupation can be satisfied by the imposition of conditions upon a particular class of New South Wales licence. Certainly, no such conditions were advanced by the applicant and any conditions that would be imposed would have to safeguard public safety.

17.     I should mention that there are various pathways that need to be fulfilled to meet the qualification requirements for the issue of an electrical licence in New South Wales: these requirements include the satisfaction of proficiency in AS/NZS 3000:2007 or a certificate of proficiency as an electrician from the Vocational Training Authority. There is no material before me that the applicant meets the requirements in one of those pathways.

18.     The applicant, who has extensive overseas experience, may be able to present a case for having a restricted electrical work licence in New South Wales.[11]

[11] T1, fol 3.

DECISION

19.     I affirm the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: ..............[Sgd]...............................................................
  Associate

Heard on the papers
Date of Decision  4 November 2011