Mubashar and Victorian Building Authority
[2025] ARTA 581
•19 May 2025
Mubashar and Victorian Building Authority [2025] ARTA 581 (19 May 2025)
Applicant/s: Muhammad Mubashar
Respondent: Victorian Building Authority
Tribunal Number: 2023/5553
Tribunal:Senior Member M. Harrowell
Place:Melbourne
Date:19 May 2025
Decision:The Tribunal affirms the decision under review.
..................[SGD]......................................................
Senior Member M. Harrowell
Catchwords
ADMINISTRATIVE LAW – Employment and workplace relations – mutual recognition of occupations – whether registration sought by the applicant in Victoria as a commercial builder is an equivalent occupation to that which the applicant was registered in New South Wales – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (repealed)
Administrative Review Tribunal Act 2024 (Cth)
Building Act 1993 (Vic)
Home Building Act 1989 (NSW)
Mutual Recognition Act 1992 (Cth)
Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009Cases
Board of Professional Engineers of Queensland v Gardner [2021] FCA 564
Cau v Victorian Building Authority [2022] FCA 45
Medical Board of Queensland v Renton [2006] FCA 947; (2006) 152 FCR 566
Victorian Building Authority v Cau [2023] FCAFC 120Statement of Reasons
INTRODUCTION
These reasons relate to an application for review of a decision of the Victorian Building Authority (respondent) refusing an application by Mr Mubashar (applicant) for registration as a commercial builder in Victoria under the Mutual Recognition Act 1992 (Cth) (MRA).
In general terms, the MRA permits a person registered to carry out an occupation in one State to have that registration recognised in another State where the circumstances prescribed in the MRA are met.
The respondent is the licensing authority under the Building Act 1993 (Vic) (Victorian Building Act). The Victorian Building Act requires a builder who carries out commercial and domestic building work to hold a licence.
The application for mutual recognition was lodged by the applicant with the respondent on about 2 June 2023 (recognition application). In the recognition application, the applicant sought registration to do commercial building work. He described his occupation as a carpenter.
At the time the recognition application was lodged, the applicant held a licence in New South Wales (NSW licence) issued under the Home Building Act 1989 (NSW) (NSW HB Act). The NSW HB Act provides for the licensing of builders to carry out residential building work in New South Wales. The NSW licence permitted the applicant to carry out work as a carpenter, kitchen and bathroom renovations, painting and decorating and waterproofing.
The NSW licence only applies to residential building work, essentially the same as domestic building work under the Victorian Building Act. There is otherwise no requirement in New South Wales to hold a licence to undertake commercial building work in that State.
By letter dated 29 June 2023 (Decision), the respondent notified the applicant of its decision to refuse the recognition application. Inter alia, that letter said:
On 29 June 2023 the Victorian Building Authority (VBA) refused your application for registration under the Mutual Recognition Act 1992 in the category of Builder, class of Commercial Builder (Limited).
The VBA refused to grant registration in the above class because your registration in New South Wales is not equivalent to the registration sought in Victoria and equivalence could not be achieved by the imposition of conditions.
The VBA made its decision under Section 23(1)(c) of the Mutual Recognition Act, 1992.
By application lodged 28 July 2023 (review application), the applicant applied to the Administrative Appeals Tribunal (AAT) to review the Decision.
Consequently, as the Decision was made under s 23(1)(c) of the MRA, s 23(2) of the MRA applies. This section states:
A decision to refuse to grant the registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.
Following the lodgement of the review application, in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act), the respondent provided a bundle of documents (Bundle) used in making its decision. The respondent also provided reasons for decision dated 24 November 2023 (respondent’s reasons).
Upon repeal of the AAT Act and the enactment of the Administrative Review Tribunal Act 2024 (Cth), the Administrative Review Tribunal (Tribunal) was authorised to determine the review application.
The review application was heard by the Tribunal on 15 May 2025.
For the purpose of the hearing the Tribunal had been provided with the Bundle, an email from of the respondent dated 16 September 2024 setting out his contentions and a document entitled “Respondent’s Statement of Facts, Issues and Contentions” (SFICS) dated 16 September 2024 setting out the respondent’s contentions.
The applicant represented himself at the hearing. The respondent was represented by Dr Gang of Counsel. The parties made oral submissions and provided further documents to the Tribunal following its enquiries concerning the licenses now held by the applicant.
The information provided included that the applicant was registered under the Victorian Building Act to do domestic building work, that registration being separately obtained to the registration sought by the current review application, as well as a third registration in connection with undertaking roof plumbing work. For present purposes, these other registrations are not relevant.
The issue for determination in this application is whether the applicant was entitled to mutual recognition under the MRA for the purpose of him being registered in Victoria to carry out commercial carpentry work in circumstances where his registration in New South Wales under the NSW HB Act related to the carrying out of residential building work in that State.
In essence, the applicant advanced two propositions in support of his application for mutual recognition.
First, the applicant said he had applied for mutual recognition based on his NSW licence and advice he had received from the respondent in an email dated 26 May 2023 (Bundle p 23). I note that an email dated 4 July 2023 was subsequently sent by the respondent to the applicant apologising for conflicting information concerning mutual recognition requirements (Bundle p 27).
Secondly, the applicant said that the activity he was seeking mutual recognition for was that of a carpenter which, essentially, involves the same work whether done in the context of commercial building work or domestic building work.
The respondent’s position was that:
(a)the MRA only operated to permit recognition of registration in Victoria if the applicant seeking registration in Victoria was required to be and was registered to carry out the particular activity in another State, in this case New South Wales, and
(b)the applicant was not required to be registered in New South Wales to carry out commercial work as a carpenter. This was because the NSW HB Act only applied to residential building work (equivalent to domestic building work under the Victorian Building Act) and there was no other legislation in New South Wales requiring a licence.
ANALYSIS
The question raised in the review application is whether registration sought by the applicant in Victoria as a commercial builder is an equivalent occupation to that which the applicant was registered in New South Wales so as to entitle the applicant to mutual recognition under the MRA.
It is common ground that the NSW licence held by the applicant was to do residential building work as set out above. Also, there was no dispute that it was not necessary to be registered in New South Wales to carry out commercial work as a carpenter of the type set out above.
Section 17(1) of the MRA states the mutual recognition principle in the following terms:
(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a) to be registered in the second State for the equivalent occupation; and
(b) pending such registration, to carry on the equivalent occupation in the second State.
Section 17(2) provides that the mutual recognition principle is subject to an exception in the following terms:
(2) However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws:
(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
That is, s 17 recognises a distinction between registration to carry out an occupation and regulation of the manner in which the occupation is carried out.
In the current proceedings, for the purpose of the MRA, the first State is the State of New South Wales. The second State is the State of Victoria. The local registration authority of the second State is the respondent.
Section 19 sets out the requirements for lodging a notice with the local registration authority and the requirements for that notice.
The entitlement to registration and continued registration of an applicant is found in s 20 of the MRA. Section 20(1) provides:
A person who lodges a notice in accordance with section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration
The local registration authority may refuse the application circumstances prescribed by s 23(1). This section relevantly provides:
23 Refusal of registration
(1) A local registration authority may refuse the grant of registration mentioned in subsection 20(1) 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.
Section 4(1) of the MRA provides the following definitions:
activity means an activity authorised to be carried on under an occupation that requires registration
equivalent, when used in relation to occupations, has a meaning affected by Division 4 of Part 3.
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.
As is apparent from the definitions of both “activity” and “occupation”, the MRA is concerned with an occupation that requires registration.
In relation to “equivalent occupations” Division 4 of Part 3 of the MRA provides:
Division 4—Equivalent occupations
28 Equivalent occupations
The equivalence of occupations carried on in different States is to be determined in accordance with this Part.
29 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 in accordance with 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.
30 Declarations as to equivalent occupations
(1) This Part is to be given effect in accordance with relevant declarations (if any) made under this Division regarding equivalent occupations.
(2) If a declaration made by the Tribunal and a declaration made by Ministers are inconsistent, the ministerial declaration prevails.
(3) A declaration under this Part does not affect the registration of any person already registered (except in the case of a declaration made by the Tribunal in relation to that person specifically.
…
32 Declarations by Ministers
(1) A Minister from each of 2 or more States may jointly declare, by notice in the Gazette, that specified occupations are equivalent, and may specify or describe conditions that will achieve equivalence.
(2) The declaration may be amended or rescinded in the same way.
(3) The declaration has effect only in relation to the States concerned.
(4) The appropriate local registration authority is to give effect to the declaration.
Declarations made by various Ministers of particular States under s 32 are found in the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (2009 Declaration). These tables set out what is described as a “mutual recognition matrix” and includes identification of States where there is no equivalent declared or where the other jurisdiction has no provision for licensing.
In Schedule 13: Mutual recognition matrix - Kitchens, Bathrooms and Laundries of the 2009 Declaration, item , which relates to the Victorian Building Act category Commercial Builder Limited (CB-L) Registration – Non Structural Fitout - Code T Limited to Kitchens, Bathrooms and Laundry Renovation, states there is “No equivalent declared” for New South Wales.
Various decisions of the Federal Court of Australia have considered the operation of the MRA and what is meant by the expression equivalent occupation used in the MRA.
In its submissions, the respondent referred to the decision of the Full Court of the Federal Court in Victorian Building Authority v Cau[1] (Cau appeal decision). That decision was an appeal from a decision of Colvin J in Cau v Victorian Building Authority[2] (Cau first instance decision). Cau first instance decision was in respect of an appeal from a decision of the AAT.
[1][2023] FCAFC 120.
[2][2022] FCA 45.
In the Cau first instance decision, Colvin J allowed the appeal from the AAT and remitted the proceedings, his Honour determining “that the Tribunal did not address or apply a correct legal view as to the nature of its tasks in determining whether the activities authorised to be carried out under each registration are substantially the same”.[3]
[3] summary of grounds 1 and 2 at [48] on which Mr Cau succeeded
In doing so, his Honour referred to the decisions of Board of Professional Engineers of Queensland v Gardner[4] and Medical Board of Queensland v Renton[5] (Renton). Of the operation of the MRA, Colvin J said at [20]-[21]:
20 Recently, in Board of Professional Engineers of Queensland v Gardner [2021] FCA 564, Logan J applied the reasoning of Kiefel J (as the Chief Justice then was) in Renton at [28]‑[33] which may be summarised as follows:
(1) The objective of the mutual recognition principle does not prevent a conclusion that there is no equivalent occupation in the second State.
(2) Equivalence is tested, pursuant to s 29(1), by determining whether the activities authorised to be carried out under each registration are substantially the same, or may be so with the imposition of conditions. That question is to be determined by reference to the terms and statutory context of the registration in each State.
(3) The inquiry 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.
(4) To the extent, at least, that the legislation in the first State or the second State or both does not list the activities that are authorised then they must be taken to be the activities usually associated with the profession which is the subject of the registration. In some cases evidence may be necessary to identify those activities.
21 The earlier statement in Renton at [23] by her Honour that the approach in Re Rowe had been endorsed in Board of Examiners v Lawrence must be understood in the context of the above statements. It is the identification of the professional activities that may be carried out based upon the relevant authorisations that must be the subject of the comparison, not the extent to which there are differences between the statutes. The question is not whether the statutory consequences of carrying out those activities are the same or there are differences in the form of regulation. The focus is on the occupational activities that are authorised.
[4][2021] FCA 564
[5] [2006] FCA 947; (2006) 152 FCR 566
In the Cau appeal decision, the Full Court said at [39]-[40]:
39 Further, as the primary judge also observed (at J [11]-[12]), there is a distinction between activities that are permitted to be carried out under the registration for an occupation and activities (or functions or powers) that are permitted to be carried out by reason of the fact of registration or in consequence of registration. The primary judge illustrated the distinction by reference to a registered general medical practitioner authorised in one State, but not another, to issue a certificate under a statute. The primary judge said the certification power was in consequence of registration, but formed no part of the registered occupation or the activities of a general medical practitioner conducted under that registration: at J [11]-[12]. We agree with the primary judge that such a distinction can be drawn.
40 The relevant phrase in s 29(1) is also to be read in the context that s 17(2) draws an evident distinction between, on the one hand, "registration" as an authorisation of a person required by or under legislation for carrying on an equivalent occupation and, on the other, laws that regulate the manner of carrying on an occupation. The mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws, amongst other things, apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State. Laws that regulate the manner of carrying on an occupation are laws that operate after or by reason of the fact of registration for an occupation. Therefore, laws that regulate the manner of carrying on an occupation cannot inform an enquiry into the question of whether a person is entitled to registration by operation of the mutual recognition principle: Andriotis at [16], [33]-[36] (Kiefel CJ, Bell and Keane JJ), [73]-[79] (Gageler J). Laws that regulate powers or functions conferred on a person registered for an occupation in a State fall into a similar category as laws that regulate the manner of carrying on an occupation because in each case the applicable laws operate after or by reason of the fact of registration.
Of the analysis of Colvin J in the Cau first instance decision, which I have set out above, the Full Court said[6]:
50 The Authority's submission overstates, if not misrepresents, the significance of the primary judge's observations about Renton and Gardner. The primary judge cited Renton and Gardner at J [21]-[22] for the purpose of placing the apparent endorsement of Re Rowe by Kiefel J (at [23]) into context. The primary judge's summary of the propositions for which Renton and Gardner stand (at J [20]) was not challenged in the appeal. The conclusion that the primary judge reached (at J [21]) was that "[i]t is the identification of the professional activities that may be carried out based upon the relevant authorisations that must be the subject of the comparison, not the extent to which there are differences between the statutes" says nothing about the source of the information to be used for that purpose. As his Honour earlier observed (at J [17]) that "may or may not be detailed in the relevant legislation". The primary judge relied on Renton and Gardner for the proposition that whatever may be the source of the information, the comparison to be undertaken is between activities associated with the occupation, not between statutory functions. That reasoning is sound. It leaves open, correctly with respect, the possibility that legislation establishing the requirement for registration for an occupation may or may not be a source of information from which to identify the relevant activities.
51 In any event, the meaning of s 29(1) of the Mutual Recognition Act is a question of law. The primary judge's interpretation is either correct or not as matter of law. If his interpretation is ultimately correct, any error in his process of reasoning is neither here nor there.
[6] [2023] FCAFC 120 at [50].
In short, the effect of these decisions is that it is necessary to look at the legislative grant of the authorisations in question to determine whether they contain “information from which to identify the relevant activities” which are permitted by the authorisations for the purpose of determining whether there is an “equivalent occupation” for the purpose of mutual recognition.
In the present case, registration under the NSW HP Act is only for the carrying out of residential building work. There is no requirement for registration to carry out commercial work.
The applicant says that the activity of carpentry and the other activities for which registration was sought in Victoria is the same activities as that for which he was authorised in New South Wales.
I do not accept this submission.
Applying the principles set out in the decisions of the Federal Court referred to above, it is necessary to look at the legislative authorisations in both New South Wales and Victoria to determine what are the activities to which each grant applies. In this case, where there is no requirement for authorisation to carry out commercial work in New South Wales, such work is not an “activity” as defined in s 4(1) as it is not one that “requires registration”.
Rather, the only activity that “requires registration” of the applicant in New South Wales is the carrying out of residential building work which, in the present case, is the same as domestic building work as defined in the Victorian Building Act.
As such, for the purpose of the MRA, there is no equivalent occupation in New South Wales as the carrying out of commercial building work does not require registration in order to be authorised to carry out such work.
The fact the physical work of a carpenter may be the same under the different categories of commercial work and residential building work/domestic building work does not detract from the fact that the licensing legislation in both States effectively distinguishes these two activities. Consequently, for the purpose of the MRA, working as a commercial builder and working as a domestic builder are different occupations.
This is no different than many other forms of licence which, by reason of the legislative grant, provide authorisations to do similar things but in different circumstances. An example is licenses that permit driving different classes of vehicles and equipment.
It follows that the MRA does not operate to require the respondent to register the applicant under the Victorian Building Act in the category of Builder, class of Commercial Builder (Limited) as there is no authorisation held by the applicant for an equivalent occupation in New South Wales.
In reaching this conclusion, I should note that the application to be registered as a commercial builder was not combined with an application to be registered as a domestic builder. Prima facie, if that had been the form of the application, s 29(2) may have permitted registration under the Victorian Building Act, on conditions limiting the registration to domestic building work only.
DECISION
The decision of the respondent is affirmed.
Date(s) of hearing: 15 May 2025 Applicant: In person Counsel for the Respondent: Dr D. Gang Solicitors for the Respondent: Ms B. Duzelovski, Victorian Building Authority
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