McPhillimy and Department of Transport and Main Roads (Qld)

[2020] AATA 556

McPhillimy and Department of Transport and Main Roads (Qld) [2020] AATA 556 (28 February 2020)

Division:GENERAL DIVISION

File Number:               2019/8561

Re:Peter McPhillimy

APPLICANT

Department of Transport and Main Roads (Qld)And  

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:28 February 2020

Date of written reasons:        17 March 2020

Place:Brisbane

The Tribunal has no jurisdiction to determine the application

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

Deputy President Dr P McDermott RFD

CATCHWORDS

MUTUAL RECOGNITION – whether applicant entitled to be granted registration in Queensland as an electrical contractor by reason of his registration in  Queensland  for traffic management design – no occupation – no jurisdiction to determine the application

LEGISLATION

Mutual Recognition Act 1992 (Cth)

National Vocational Education and Training Regulator Act 2011 (Cth)

CASES

Medical Board of Queensland v Renton (2006) 152 FCR 566

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

17 March 2020

BACKGROUND

1. Mr McPhillimy (“the applicant”) has made a number of representations to the Department of Transport and Main Roads (“the Department”) for the mutual recognition of his New South Wales Prepare for Work Zone Traffic Management Plans qualifications.

2. On 17 September 2019, his initial representation was in an email to the Department.

3. On 27 September 2019, the Department advised the applicant that there was no mechanism for the recognition of interstate qualifications or accreditations for traffic management design.

4. On 30 September 2019, the applicant made a declaration of an Equivalent Occupation Registration Notice (“the Notice”). The occupation named in the Notice was “Traffic Management Design”. The applicant also provided evidence that the applicant had the qualification in New South Wales of “Prepare a Work Zone Traffic Management Plans” and that his qualification was current.

5. On 30 September 2019 and 4 November 2019, the applicant sought mutual recognition of his qualification.

6. On 9 December 2019, the Department advised the applicant that they had no power to recognise the qualification specified in the Registration Notice.

7. On 17 December 2019, the applicant made an application to the Tribunal.

   MUTUAL RECOGNITION

8. The principal purpose of the Mutual Recognition Act 1992 (“the Act”) is outlined in section 3 of the Act which provides:

   3         Principal purpose

   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 promoting the goal of freedom of movement of goods and service providers in a national market in Australia.

9. The mutual recognition principle is outlined in s 17(1) of the Act which provides:

   (1)  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.

10. The Act , under s 23(1)(c), provides as follows:

    (1)  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.

11. Pursuant to s 29(1) of the Act:

    (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).

12. It should also be mentioned that s 29(2) of the Act, allows conditions to be imposed on registrations “… so as to achieve equivalence between occupations in different States”.

13. The following definitions appear under s 4 of the Act:

    "occupation" means 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

    …

    "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.

    PRINCIPLE OF EQUIVALENCE OF OCCUPATION

14. The principle of equivalence of occupation under the mutual recognition principle was explained by Kiefel J (as she then was) in Medical Board of Queensland v Renton (“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] (2006) 152 FCR 566 at 573-574.

    REGISTRATION IN THE STATE OF ORIGINAL QUALIFICATION

15. It is important to examine whether registration of the qualification of preparing a work zone management plan in the first State is required by legislation. The definition of “registration” in s 3 of the Act requires that the process of registration is required by or under legislation for carrying on an “occupation”. That is why in Renton Keifel J emphasised that regard had to be had to “the terms of the registration in the first State informed by, or read with, the statutory provisions under which registration is effected”.

16. The applicant, who was granted an adjournment to obtain legal advice, was unable to point to any statutory provisions in New South Wales which enables the registration of his qualification of “Prepare a Work Zone Traffic Management Plans”. The respondent has been unable to identify any relevant legislative scheme in New South Wales that relates to the qualification of the applicant. In these circumstances, the application for the mutual recognition of this qualification cannot proceed.

    LOCAL REGISTRATION AUTHORITY

17. It is also important to have regard to the definition of “local registration authority” in s 4 of the Act:

    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.

18. The applicant has not been unable to identify any relevant Queensland legislation which relates to the registration of qualifications. The National Vocational Education and Training Regulator Act 2011 (Cth) has no relevance to the application.

    DECISION

19. The Tribunal decides that there is no jurisdiction to determine this application.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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

Associate

Dated: 17 March 2020

Date of hearing:	5 February 2020 and 28 February 2020
Applicant:	By phone
Solicitors for the Respondent:	Crown Solicitor, Mr Nathan Harris