Rafferty and Building Professionals Board

[2017] AATA 574

Rafferty and Building Professionals Board [2017] AATA 574 (2 March 2017)

Division:GENERAL DIVISION

File Number(s):      2016/5239

Re:Gary Rafferty

APPLICANT

Building Professionals BoardAnd  

RESPONDENT

DECISION

Tribunal:Professor M J McGrowdie, Senior Member

Date:2 March 2017

Date of written reasons:        28 April 2017

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

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Professor M J McGrowdie, Senior Member

CATCHWORDS

BUILDING PRACTITIONERS – mutual recognition – surveyor – activities – New South Wales – Victoria – certificate of accreditation – conditions – decision affirmed

LEGISLATION

Mutual Recognition Act 1992 (Cth) s 29

CASES

Rowe and New South Wales Police Service [1997] AATA 200

WRITTEN REASONS FOR ORAL DECISION

Professor M J McGrowdie, Senior Member

28 April 2017

1. The Tribunal is not, by agreement, looking at the merits of the application, nor whether or not Mr Rafferty now satisfies the conditions on his certificate of accreditation by lodging further information with the Building Professionals Board (the Board).  The Tribunal is looking at that question which we have defined, namely, whether there is mutuality, in effect, or whether the accreditation is essentially for substantially the same thing.

2. So that is the question the Tribunal is focussing on.  It is a very narrow question but I have been trying to follow this very closely and look at the materials and to hear in detail what each of the parties has had to say. Prior to the hearing I had a look through the material before me, and I have an appropriate degree of understanding of the matter because I know about, in broad terms, the Building Code of Australia, surveying and engineering and the Environment Protection Authority.  In the past, I have practised to a large degree in environmental matters and matters involving engineers, surveyors and the Building Code of Australia and so forth, so I have got some appreciation of what this matter is about.

3. The difficulty is what the Board was doing was comparing professions with professions.  Mr Rafferty is a very highly experienced and practising surveyor, no matter where he works in Australia, but the fact is, different States have different legislative provisions.

4. It is not the role, in my view, that is being compared.  It is not surveyor and surveyor.  Mr Rafferty is a surveyor in New South Wales and in Victoria. He is doing the same job in both States.   

5. The activities under section 29 of the Mutual Recognition Act 1992 (Cth) (the Act) must be looked at. The activities are the day-to-day activities of Mr Rafferty’s work as a surveyor. Whether there are differences in terms of the regulation between States so far as those activities are concerned must be determined. Mr Rafferty is just as much a surveyor in New South Wales as in Victoria, but in Victoria, unless a person has a degree or the equivalent there, they must get a fire certificate. In New South Wales a fire certificate is not required for smaller projects.

6. I think Mr Rafferty is most concerned about having an unrestricted certificate so he has greater accreditation when engaged by employers or doing work on his own.  An unrestricted certificate would mean he can sign off on everything, and I think in New South Wales, if a person has accreditation without conditions, they have a bit more freedom than somebody in Victoria who has an unrestricted A1 certificate in that that person can approve smaller projects in terms of departures from the fire requirements under the Building Code of Australia. Not that that is particularly important, because Mr Rafferty is not dealing in small projects.  Mr Rafferty is dealing in skyscrapers and warehouses.

7. In New South Wales it seems standard at the moment that a person would have to get a fire certificate even for small projects, but in Victoria you would have to as well.

8. As I understand it, for the purposes of this application, Mr Rafferty is seeking mutual recognition in respect of his Victorian registration.

9. The bottom line is that it is the activities authorised to be carried out under each registration that are to be compared, and if there is a difference then they are to be adjusted by conditions.

10. Whether Mr Rafferty thinks that the Board has been over-zealous or not, it has exercised a function that it is authorised to undertake, and that is as set out by Mr Lynch in Annexure C to his statement dated 17 February 2017.

11. The decision in Rowe and New South Wales Police Service [1997] AATA 200 dealt with a situation where there was no equivalent occupation, but the decision has been followed by members of the Tribunal, so has been applied in many cases since 1997. In that decision Deputy President Forgie articulates the steps to be taken when assessing equivalent occupations. The first step is to identify the occupation, that is, a surveyor, followed by the identification of the activities of surveyors in New South Wales which are authorised to be carried out under that registration. The third step is to identify the occupation in the other State. Then the activities carried out under that registration must be considered and then a comparison must be made of the two.

12. Annexure C makes that comparison, and where there are differences, section 29 of the Act says that where there is some adjustment to be made, that adjustment can be made by way of conditions, and that is what has happened here.

13. I would be reasonably confident though, that if Mr Rafferty was to attempt to provide the additional information that has been suggested, he might well obtain an unrestricted accreditation. However, there was a requirement that Mr Rafferty fulfil the other conditions be a certain date. That requirement has now been modified to allow Mr Rafferty at any time, including immediately, to satisfy the conditions to obtain an unrestricted accreditation.

14. For the reasons above, and based on Mr Rafferty’s evidence and the material before me, I am not persuaded that the decision made by the Board on 13 May 2016 should be set aside and accordingly I affirm that decision.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Professor M J McGrowdie, Senior Member

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Associate

Dated: 28 April 2017

Date(s) of hearing:	2 March 2017
Applicant:	In person
Counsel for the Respondent:	R Bhalla
Solicitors for the Respondent:	C Nelson, Crown Solicitor's Office NSW