McLeod and Queensland Building and Construction Commission

McLeod and Queensland Building and Construction Commission [2019] AATA 143 (14 February 2019)
Division:GENERAL DIVISION
File Number: 2018/2374
Re:Alexander Maverick MCLEOD
APPLICANT

AndQueensland Building and Construction Commission
RESPONDENT

DECISION
Tribunal:Senior Member D R Davies
Date:14 February 2019
Place:Brisbane

The decision under review is varied to the extent that QBCC grants Mr McLeod the following Licence:
1.Builder - Open Licence Class Contractor Grade Restricted to BCA 1a, 2, 4, 10.
2.Builder - Open Licence Class Builder Grade subject to the condition that all building work other than that authorised by Builder - Open Licence Contractor Grade Restricted to BCA 1a, 2, 4, 10, is restricted to the provision of supervisory services, management services and administration services as defined in the QBCC Act.

........................[SGD].................................
Senior Member D R Davies
CATCHWORDS
MUTUAL RECOGNITION – equivalent occupations – builders licence – whether New South Wales and New Zealand licences are equivalent to Queensland licence – whether the activities authorised to be carried out under a New Zealand Licence are substantially the same – decision under review is varied
LEGISLATION
Building Act 2004 (NZ)
Home Building Act 1989 (NSW)
Home Building Regulation 2014 (NSW)
Mutual Recognition Act 1992 (Cth)
Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009) (Cth)
Queensland Building and Construction Commission Act 1991 (Qld)
Queensland Building and Construction Commission Regulation 2018 (Qld)
Trans-Tasman Mutual Recognition Act 1997 (Cth)
SECONDARY MATERIALS
Building (Definition of Restricted Building Work) Order 2011 (NZ)
Building (Designation of Building Work Licensing Classes) Order 2010 (NZ)
Licensed Building Practitioner Rules 2007 (NZ)
National Construction Code, NCC 2016 Amendment 1, Volume 1, Clause A3.2
REASONS FOR DECISION
Senior Member D R Davies
14 February 2019
INTRODUCTION

The Applicant, Mr Alexander Maverick McLeod (Mr McLeod) seeks the review of the decision of the Respondent, the Queensland Building and Construction Commission (QBCC), that it grant him a Queensland Builder – Open Licence subject to the conditions that it was restricted to carrying out domestic building work and for all other works, the provision of supervisory services and administration services as defined in the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
The issue is whether the activities authorised to be carried out under the licences which Mr McLeod holds in each of New South Wales and New Zealand are equivalent to those of a Queensland Builder - Open Licence without conditions, pursuant to:
·In the case of the New South Wales licence, the Mutual Recognition Act 1992 (Cth) (MR Act); and
·In the case of the New Zealand licences, the Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTMR Act).
Each of the MR Act and TTMR Act provides that an application may be made to the Administrative Appeals Tribunal to review a decision of a local registration authority in relation to its functions under each of those Acts. In this case, the local registration authority is the QBCC.
BACKGROUND
Mr McLeod holds a New South Wales Contractor Licence (NSW Licence) and a New Zealand Licence for Licence Class, Carpentry and Licence Class, Site, Area of Practice 3 (NZ Licence).[1]
[1] Exhibit 1, Tribunal Documents, T1, p19.
On 5 May 2018, Mr McLeod applied to the QBCC for a Queensland Builder - Open Licence on the basis of mutual recognition of his NSW Licence and NZ Licence.
By letter dated 4 April 2018,[2] the QBCC notified Mr McLeod of its decision to approve his application for a Queensland Builder - Open Licence with a restriction to domestic building construction work only under the MR Act on the basis that his NSW Licence only covered domestic building construction work in New South Wales. The QBCC also notified

Mr McLeod that his application under the TTMR Act in relation to his NZ Licence had been postponed for one month because “QBCC does not have an equivalent licence class for the occupation in which registration is sought”. (First Decision).
[2] Exhibit 1, Tribunal Documents, T6, pp87-88.
By letter dated 4 May 2018,[3] the QBCC notified Mr McLeod of its decision to refuse to grant his application for a Queensland Builder - Open Licence pursuant to the TTMR Act because in respect of his NZ Licence “the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of condition”. (Second Decision).
[3] Exhibit 1, Tribunal Documents, T8, p92.
By letter dated 28 May 2018,[4] the QBCC notified Mr McLeod that following a review of its previous decision it had decided to approve Mr McLeod’s application for a Queensland Builder – Open Builder Licence with the following conditions:
“Mutual recognition
(1) Carrying out domestic building works; and
(2)For all other work, the provision of supervisory services, management services and administration services as defined in the QBCC Act”. (Third Decision).
[4] Exhibit 1, Tribunal Documents, T10, p95.
The QBCC in its Statement of Findings and Reasons for the Decision submitted to this Tribunal, states that the Third Decision replaced the Second Decision.[5]
[5] Exhibit 1, Tribunal Documents, T2, p33.
On 24 April 2018, Mr McLeod made an Application for review of the decision of the QBCC to the Administrative Appeals Tribunal.[6]
[6] Exhibit 1, Tribunal Documents, T1.
The QBCC Licence search which was tendered by the QBCC[7] records that Mr McLeod holds two licences issued by the QBCC:
[7] Exhibit 13, QBCC Licence Search – Individual, created on 15 October 2018.
1.Licence Class – Builder-Open
Licence Grade – Builder Licence
Conditions – Mutual Recognition
Details: (1) Carrying out domestic building work; and
(2) For all other work, the provision of supervisory services, management services and administration services as defined by the QBCC Act
2.Licence Class – Builder-Open
Licence Grade – Site Supervisor
The second licence Builder-Open Site Supervisor is not the subject of the present review application. This review application is in respect of the conditions imposed by the QBCC on the first licence – Builder-Open Licence Grade - Builder.
LEGISLATIVE FRAMEWORK
Mr McLeod seeks the mutual recognition of his NSW Licence and NZ Licence for a Builder-Open Licence in Queensland without condition. Accordingly, it is necessary to consider the provisions of mutual recognition legislation in respect of the Australian States and New Zealand.
Mutual Recognition Act 1992 (Cth)
The mutual recognition provisions applying to occupations within Australia are set out in the MR Act. Part 3 of the MR Act sets out the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.
Section 17 of the MR Act provides that the mutual recognition principle is that a person who is registered in the first State for an occupation is entitled after notifying the local registration authority of the second State, for the equivalent occupation to be registered in the second State for the equivalent occupation.
Section 29 of the MR Act provides:
“General principles
(1)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).
(2)Conditions may be imposed on registration under this Part, so as to achieve equivalence between occupations in different States.
(3)This section has effect subject to any relevant declarations in force under this division.”
Section 32 of the MR Act relevantly provides that a Minister from each of two or more States may jointly declare, that specified occupations are equivalent, and may specify or describe conditions that will achieve equivalence. Such a declaration has effect only in relation to the States concerned and the local registration authority is required to give effect to that declaration.
Trans-Tasman Mutual Recognition Act 1997 (Cth)
The mutual recognition provisions applying to occupations between New Zealand and Australia are set out in the TTMR Act. Part 3 of the TTMR Act sets out 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 of the TTMR Act provides that the Trans-Tasman mutual recognition principle is that a person who is registered in New Zealand for an occupation is entitled after notifying the local registration authority of an Australian jurisdiction for the equivalent occupation to be registered in the jurisdiction for the equivalent occupation.
Section 28 of the TTMR Act provides:
“General principle
(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 are 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 Park so as to achieve equivalence between occupations in different participating jurisdictions.
(3)This section has effect subject to any relevant declarations in force under this Division.”
Section 31 of the TTMR Act provides for a Minister from New Zealand and a Minister from each of one or more Australian jurisdictions to jointly declare that specified occupations are equivalent and may specify or describe conditions that will achieve equivalence.
CONSIDERATION
A number of exhibits were tendered by the parties and admitted into evidence before this Tribunal. Mr McLeod appeared before the Tribunal and gave evidence and made submissions assisted by Mr Alan Tupicoff. The QBCC called two witnesses, Mr Vincent Kneebone, the Technical Licensing Team Leader at the New Zealand Ministry of Business Innovation and Employment, who gave evidence by telephone. Mr Graham Easterby, the Licensing Manager at the QBCC, appeared and gave evidence to the Tribunal.
It is necessary to consider the position in relation to each of Mr McLeod’s NSW and NZ Licences.
New South Wales Licence
Mr McLeod holds a New South Wales Contractor – Licence Class - Builder issued under the Home Building Act 1989 (NSW) (NSW HB Act).[8]
[8] Exhibit 1, Tribunal Documents, T4, p75.
Section 21 of the NSW HB Act provides that a contractor licence authorises its holder to contract to do any residential building work that is described in the contractor licence. Schedule 1, clause 2 of the NSW HB Act defines “residential building work” as meaning any work involved in, or involved in coordinating or supervising the construction, alteration, additions, repairing, renovation, decoration or protective treatment of a dwelling.
Schedule 4 of the Home Building Regulation 2014 (NSW) provides extended descriptions of work authorised by Contractor Licences issued under the NSW HB Act. Relevantly under this Regulation, the extended description for work authorised by a New South Wales Contractor General Building Work Licence Class is:
“Any work that is residential building work under the Act.
Any work that is specialist work done in connection with a dwelling that is an integral part of an overall contract to do other residential building work that is not specialist work.”
As previously mentioned, section 32 of the MR Act provides that a Minister from each of two or more States may jointly declare that specified occupations are equivalent, and may specify or describe conditions that will achieve equivalence. The New South Wales Contractor Licence General Building Work is the subject of such a declaration under Schedule 25 of the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth) (MR Declaration 2009) which declares that a New South Wales Endorsed Contractor Licence – General Building Work is equivalent to a Queensland “Builder - Open Licence – Contractor Grade Restricted to BCA 1a, 2, 4, 10”. BCA 1, 2, 4, 10 refers to the classes of buildings under the Building Code of Australia:[9]
[9] National Construction Code, NCC 2016 Amendment 1, Volume 1, Clause A3.2.
“Class 1a:
A single dwelling being –
A detached house, or
One of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall including a row house, a terrace house, a town house or villa unit.
Class 2:
A building containing two or more sole-occupancy units, each being a separate dwelling.
Class 4:
A dwelling in a building that is Class 5, 6, 7, or 9 if it is the only dwelling in the building.
Class 10:
A non-habitable building or structure -
Class 10(a) – a non-habitable building being a private garage, carport, shed or the like; or
Class 10(b) – a structure being a fence, a mast, antenna, retaining or freestanding wall, swimming pool or the like; or
Class 10(c) – a private bushfire shelter.”
The QBCC in its submission to the Tribunal[10] concedes that it relied on a previous declaration when applying conditions to Mr McLeod’s licence under the MR Act and that it did not rely on the MR Declaration 2009. The QBCC further concedes that Mr McLeod’s Queensland Licence with respect to equivalence with his New South Wales Contractor – General Building Work Licence should be: “Builder-Open Licence – Contractor Grade Restricted to BCA 1a, 2, 4, 10”.
[10] Exhibit 12, Letter QBCC to AAT dated 14 January 2019.
Accordingly, I find that in accordance with the MR Act and the MR Declaration 2009,

Mr McLeod’s Licence under the QBCC Act with respect to equivalence with Mr McLeod’s NSW Licence – General Building Work is “Builder-Open Licence – Contractor Grade Restricted to BCA 1a, 2, 4, 10”.
New Zealand License
The next issue to consider is the equivalence of Mr McLeod’s NZ License in Queensland pursuant to the TTMR Act.
Subsection 30(2) of the QBCC Act provides that contractors’ licenses are to be divided into classes by regulation which may specify the class or classes of building work to which it relates.
Schedule 2 of the Queensland Building and Construction Commission Regulation 2018 (Qld) (QBCC Regulation) provides for various classes of licence. Schedule 2, Part 6 clause 1(1) of the QBCC Regulation provides for “Builder-open licence”. The permitted scope of work for a “builder-open licence” is set out in Part 6, clause 2 and relevantly is:
“(1) For the licence class mentioned in section 1(1) -
(a)   building work on all classes of buildings; and
(b)   Prepare plans and specifications that are –
(i)     for the licensee’s personal use; or
(ii)    for use in building work to be performed by the licensee personally.
(2)However, the scope of work does not include –
(a)   a completed building inspection for an interested party for the building, or
(b)   personally carrying out any building work for which –
(i)a fire protection licence is required; or
(ii)an occupational license is required unless the licensee holds the occupational license.”
The term “occupational licence” is defined in Schedule 2 of the QBCC Act to mean:
“A licence or registration for an occupation that is –
(a)issued to a person by an entity other than the commission; and
(b)required by the person to carry out the occupation.”
The Building (Designation of Building Work Licensing Classes) Order 2010 (NZ) (Building Order 2010 NZ) sets out the classes of building licences issued in New Zealand.[11] Mr McLeod holds a NZ Licence for “Carpentry Class” and a “Site Class Area of Practice 3”.[12]
[11] Exhibit 1, Tribunal Documents, T3, p55.
[12] Exhibit 1, Tribunal Documents, T3, p54.
Mr McLeod has not applied to the QBCC for a licence under the TTMR Act on the basis of his New Zealand Carpentry Licence. His Application to the QBCC for a Queensland Builder - Open Licence is on the basis of his NSW Licence and his NZ Licence.[13]
[13] Exhibit 1, Tribunal Documents, T3, p44.
In his submissions to this Tribunal, Mr McLeod contended that the activities which are able to be undertaken under both his New Zealand Carpentry Licence and Site Licence should be considered when determining whether the activities authorised to be carried out under his New Zealand Licence are substantially the same as those under the Queensland Builder - Open Licence.
However, section 28 of the TTMR Act clearly refers to whether “an occupation … in New Zealand” is equivalent to “an occupation … in an Australian jurisdiction” and whether “the activities authorised to be carried out under each registration are substantially the same.” I consider this means that it is necessary to determine whether the particular occupation or, in this case, licence class in New Zealand is equivalent to the occupation or licence class in Australia. In the context of the present case, this means that Mr McLeod’s New Zealand Carpentry Licence and Site Licence are to be considered separately in determining whether the activities authorised to be carried out under that Licence Class are substantially the same as those under a Queensland Builder - Open Licence.
Clause 4 of the Building Order 2010 NZ provides that a “Carpentry” licensing class is a Trade licensing class and that the type of building work that it authorises is:
“Carpentry for any building that is - (a) category 1… (b) category 2… (c) or category 3 building.”
Mr Kneebone in his statement[14] and in his evidence to the Tribunal said that a Carpentry Licence allows someone to construct or alter residential buildings made using traditional methods and materials.[15] He also said that:
“A Queensland Building and Construction Commission (QBCC) carpentry licence is considered equivalent to a New Zealand LBP carpentry licence. A carpentry licence entitles a practitioner in either jurisdiction to carry out carpentry work consisting of construction or alteration of buildings using generally traditional methods and materials.”[16]
[14] Exhibit 6, Statement of Vincent Thomas Evert Kneebone, dated 31 July 2018.
[15] Exhibit 6, Statement of Vincent Thomas Evert Kneebone, dated 31 July 2018, paragraph 20.
[16] Exhibit 6, Statement of Vincent Thomas Evert Kneebone, dated 31 July 2018, paragraph 25.
Mr Kneebone in his evidence also referred to the Licensed Building Practitioner Rules 2007 (NZ) (LBP Rules NZ) which are Annexure A “VTK01” to his statement.[17] Those Rules at pages 30-32 set out the Carpentry Licence Class Competencies and a series of performance indicators relating to those competencies. The competencies are:
“Competency 1: Demonstrate knowledge of the regulatory environment of the building construction industry.
Competency 2: Demonstrate knowledge of current building and trade practice.
Competency 3: Carry out planning and scheduling for carpentry work.
Competency 4: Carry out Carpentry work.”
[17] Exhibit 6, Statement of Vincent Thomas Evert Kneebone, dated 31 July 2018, Annexure “VTEK-01”.
As previously mentioned, the permitted scope of work for a Queensland Builder - Open Licence includes building work on all classes of buildings.[18] Schedule 2 of the QBCC Act defines “building work” as being a wide range of activities including:
[18] QBCC Regulation Schedule 2, Part 6, Clause 2.
(a)the erection or construction of a building; or
(b)the renovation, alteration, extension, improvement or repair of a building; or
(c)the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or
(d)any site work…;
(e)the preparation of plans or specifications for the performance of building work; or
(f)contract administration carried out by a person in relation to the construction of a building design by the person; or
(g)fire protection work; or
(h)carrying out of site testing and classification in preparation for the erection or construction of a building on the site; or
…

I consider that the activities authorised to be carried out under a New Zealand Carpentry Class Licence are not substantially the same as those authorised to be carried out under a Queensland Builder - Open Licence and that for the purposes of the TTMR Act a New Zealand Carpentry Class Licence is not equivalent to a Queensland Builder - Open Licence.
It therefore remains to consider whether the activities authorised to be carried out under Mr McLeod’s New Zealand Site Area of Practice 3 Licence, are substantially the same as those under the Queensland Builder - Open Licence.
The Building Order 2010 NZ to which I have previously referred provides in clause 4 that the type of building work that a licence holder is licensed to carry out or supervise for the Site Licence Class is:
“Co-ordination or oversight of some or all of the construction or alteration of any building that is –
(a) a category 1 building; or
(b) a category 2 building; or
(c) a category 3 building.”
Mr Kneebone gave evidence that a person who holds a New Zealand Site Licence is unable to carry out or supervise restricted building work.[19]
[19] Exhibit 6, Statement of Vincent Thomas Evert Kneebone, dated 31 July 2018, paragraph 8.
Restricted building work is defined relevantly by clause 5 of the Building (Definition of Restricted Building Work) Order 2011 (NZ) as being building work that is the construction or alteration of the primary structure or the external moisture management system of a house or small–to–medium apartment building, as well as certain types of trade work.
Mr Kneebone also gave evidence that “All of the licence classes (including Trade, Site and Design), with the exception of Carpentry, include areas of practice”[20] and that “…an area of practice is an area within a licence class in which a practitioner’s competence can be assessed”.[21]
[20] Exhibit 6, Statement of Vincent Thomas Evert Kneebone, dated 31 July 2018, paragraph 12.
[21] Exhibit 6, Statement of Vincent Thomas Evert Kneebone, dated 31 July 2018, paragraph 13.
In the present case, Mr McLeod’s Site Licence is for Area of Practice 3.
Mr Kneebone in his statement[22] and oral evidence gave evidence that the Building Act 2004 (NZ) regulates persons who contract for residential building work of certain types, but does not regulate those contracting for other building work including commercial building work.
[22] Exhibit 6, Statement of Vincent Thomas Evert Kneebone, dated 31 July 2018.
Mr Kneebone in his statement[23] gave evidence that the scope of work for the Site Licence Class is also set out in the Building Order 2010 NZ as “coordination or oversight of some or all of the construction or alteration of a building.” He said that the “site licence, unlike any other licence, does not entitle a licence holder to carry out or supervise restricted building work. The licence currently only allows a person to coordinate and oversee building work.”
[23] Exhibit 6, Statement of Vincent Thomas Evert Kneebone, dated 31 July 2018, paragraphs 21 and 22.
The Site Licence Area of Practice 3 is a reference to the provisions of the LBP Rules NZ to which I have previously referred.[24] Those rules at pages 24-29 set out the Site Licence Class Competencies and performance indicators for each area of practice. It provides that:
“This licensing class covers Practitioners responsible for coordinating and overseeing the construction or alteration of any category of building. This licensing class includes:
Site 1 (Coordination or oversight – Category 1 Buildings)
Site 2 (Coordination or oversight – Category 1, 2 and 3 Buildings)
Site 3 (Management – Category 1, 2 and 3 Buildings).”
The references in the LBP Rules NZ to categories of buildings are categories referred to in the Building Order 2010 NZ to which I have previously referred.
[24] Exhibit 6, Statement of Vincent Thomas Evert Kneebone, dated 31 July 2018, Annexure “VTK01”.
The LBP Rules NZ at page 24 set out the Site Licence Class Competencies as being:
“Competency 1: Demonstrate knowledge of the regulatory environment of the building construction industry.
Competency 2: Apply technical knowledge of construction methods and Practice.
Competency 3: Organise and manage building projects.
Competency 4: Manage personnel.
Competency 5: Provide technical supervision.”
I consider that the Site Licence Competencies and Areas of Practice Performance Indicators under the LBP Rules NZ are competencies which relate to the coordination or oversight of building work rather than the actual carrying out or performance of building work.
Having regard to the permitted scope of work for a Queensland Builder - Open Licence and the definition of Building Work under the QBCC Act to which I have previously referred, I find that the activities authorised to be carried out under a New Zealand Site Area of Practice 3 Licence are not substantially the same as those under the Queensland Builder - Open Licence without the imposition of conditions.
The licence which the QBCC has issued to Mr McLeod is recorded in Exhibit 13 as being:
“Licence Class: Builder-Open.
Licence Grade: Builder Licence.
Conditions: Mutual Recognition.
Details: (1) Carrying out domestic building work; and
(2) For all other work, the provision of supervisory services, management services and administration services as defined in the QBCC Act.”
Exhibit 13 also records that Mr McLeod holds a Builder - Open Site Supervisor Licence which I have previously mentioned is not relevant to the present application.
The first condition details referred to above relating to the carrying out of domestic building work, arise from the mutual recognition of Mr McLeod’s NSW Licence. In view of my findings in relation to the equivalence of his NSW Licence, in this respect Mr McLeod’s Queensland Licence will be varied as follows:
Builder - Open Licence Contractor Grade Restricted to BCA 1a, 2, 4, 10.
As I have found that Mr McLeod’s New Zealand Site Licence Area of Practice 3 is not equivalent to the Queensland Builder - Open Licence without the imposition of conditions, it is necessary to consider what are the appropriate conditions.
The QBCC has submitted that, as the relevant competencies in respect to Mr McLeod’s New Zealand Site Licence Area of Practice 3 under the LBP Rules NZ relate to coordination or oversight, rather than the physical performance of building work, the conditions which it applied to the Builder-Open Licence restricting the scope of work for other than Domestic Building Work 2 “Supervisory Services”, “Management Services” and “Administration Services” as those terms are defined in Schedule 2 of the QBCC Act are appropriate.
I am satisfied that in accordance with section 28 of TTMR Act, by the imposition of the conditions which were applied by the QBCC to Mr McLeod’s Builder - Open Licence for work other than that authorised by Builder - Open Licence Contractor Grade Restricted to BCA 1a, 2, 4, 10 equivalence is able to be achieved with Mr McLeod’s New Zealand Site Licence Area of Practice 3.
CONCLUSION
Accordingly, I order that the decision under review be varied as follows:
The QBCC grants Mr McLeod the following Licence:
1.Builder - Open Licence Class Contractor Grade Restricted to BCA 1a, 2, 4, 10.
2.Builder - Open Licence Class Builder Grade subject to the condition that all building work other than that authorised by Builder - Open Licence Contractor Grade Restricted to BCA 1a, 2, 4, 10, is restricted to the provision of supervisory services, management services and administration services as defined in the QBCC Act.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D R Davies

..........................[SGD].................................
Associate
Dated: 14 February 2019

Date of hearing: 18 January 2019

The Applicant:

Advocate for the Applicant:

In person

Mr Alan Tupicoff

Representative for the Respondent:

Mr Dean McNulty

[2019] AATA 143

14 February 2019

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