Rafferty and Building Professionals Board

The applicant, Mr Rafferty, sought to have his Victorian building surveyor accreditation recognised in New South Wales under the Mutual Recognition Act 1992 (Cth). The Building Professionals Board of New South Wales (the Board) had issued Mr Rafferty with a certificate of accreditation, but imposed certain conditions on it, which Mr Rafferty contended were not justified. The matter came before Professor M J McGrowdie, Senior Member.

The central legal issue before the Senior Member was whether the conditions imposed by the Board on Mr Rafferty's New South Wales accreditation were lawful and reasonable, given his existing accreditation as a building surveyor in Victoria. Specifically, the question was whether the Board had a sufficient basis to impose these conditions, which effectively limited the scope of Mr Rafferty's practice in New South Wales compared to his Victorian accreditation.

The Senior Member reasoned that the Board's power to impose conditions under the Mutual Recognition Act was not unfettered. It required a demonstrable justification related to the protection of public interest or the maintenance of professional standards within New South Wales. In this instance, the Senior Member found that the Board had not adequately demonstrated that the conditions were necessary to address any deficiency in Mr Rafferty's Victorian accreditation or to mitigate any specific risks to the New South Wales building industry. The Senior Member applied the principle that mutual recognition should facilitate, not unduly restrict, the practice of an occupation across states, provided the applicant meets the essential requirements of the receiving state.

The Senior Member affirmed the decision of the Board in part, but varied the conditions imposed on Mr Rafferty's accreditation. The Senior Member found that some of the conditions were not justified by the evidence before the Board and were therefore unreasonable.