Shi and Commissioner for Fair Trading (NSW)
[2024] AATA 2224
•3 July 2024
Shi and Commissioner for Fair Trading (NSW) [2024] AATA 2224 (3 July 2024)
Division:General Division
File Number:2023/3885
Re:Frank Shi
APPLICANT
Commissioner for Fair Trading (NSW)And
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:3 July 2024
Place:Sydney
The decision of the Respondent’s delegate dated 19 May 2023 is set aside and substituted with a decision that Mr Shi is not entitled to registration pursuant to the Trans-Tasman Mutual Recognition (New South Wales) Act 1996 (NSW) to registration under the Design and Building Practitioners Act 2020 (NSW) as a mechanical engineer.
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Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MUTUAL RECOGNITION – application of Trans-Tasman Mutual Recognition (New South Wales) Act 1996 – substantial equivalence – mutual recognition principle – application for professional mechanical engineer under Design and Building Practitioners Act 2020 (NSW) – current registration as roles with air-conditioning specialty under Building Act 2004 (NZ) – whether being an independent qualified person and producer statement author is substantially equivalent to being a professional mechanical engineer – decision under review is set aside and substituted
LEGISLATION
Building Act 2004 (NZ)
Design and Building Practitioners Act 2020 (NSW)
Design and Building Practitioners Regulation 2021 (NSW)
Mutual Recognition Act 1992 (Cth)Trans-Tasman Mutual Recognition (New South Wales) Act 1996 (NSW)
CASES
Medical Board of Queensland v Renton [2006] FCA 947
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
3 July 2024
INTRODUCTION
The removal of impediments to professional practice across the constituent elements of a federation serves the interests of economic efficiency. The Mutual Recognition Act 1992 (Cth) (‘MRA Act’) gives effect to this goal. Under the scheme implemented by the MRA Act, a person qualified to engage in an occupation in a State or Territory may, subject to registration under the scheme, engage in that occupation in other jurisdictions forming part of the scheme, without the need to re-qualify in each jurisdiction.
A similar approach operates as between New Zealand and all Australian States and Territories.[1] The Trans-Tasman Mutual Recognition (New South Wales) Act 1996 (NSW) (‘the TTMR-NSW Act’) permits registration in equivalent occupations as between New South Wales and New Zealand. Registration in an Australian State or Territory is not a precondition for registration under the Trans-Tasman scheme.
[1] See Trans-Tasman Mutual Recognition Act 1997 (Cth) and related State and Territory legislation.
An important element of such schemes is that the occupations, howsoever described in particular jurisdictions, must be substantially equivalent. In Medical Board of Queensland v Renton [2006] FCA 947, Kiefel J (as her Honour then was) noted that equivalence is tested 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. This is determined by reference to the terms and statutory context of the registration in each State. In other words, determining whether two regulated occupations are equivalent is based on a comparison of the functions undertaken in the respective occupations, as well as the eligibility requirements to obtain registration. The focus of the exercise is upon the formal requirements as laid down in the respective jurisdictions, rather than the personal qualities of the applicant, such as relevant experience.
THE APPLICATION
Mr Shi (the Applicant) has practised as an air conditioning specialist for the past two decades in New Zealand. He relocated to Australia, and on 1 May 2023, applied to NSW Fair Trading for registration as a mechanical engineer under the Design and Building Practitioners Act 2020 (NSW) (‘the DBP Act’).[2] He provided evidence of his employment record in New Zealand, including relevant qualifications and certificates. He gave the appropriate notice on the prescribed form.[3]
[2] T-documents, 7.
[3] T-documents, 10.
On 19 May 2023, his application was refused by a Regulatory Operations Officer (ROO) of NSW Fair Trading (the Respondent).[4] His application was refused on the incorrect ground that the Applicant’s lack of registration in an Australian State was fatal to his application, and that “We can only issue an equivalent registration based on the classes you hold interstate”.[5]
[4] T-documents, 9.
[5] The ROO appears to have proceeded by reference to the Mutual Recognition Act 1992 (Cth). The Notice Form states that it should only be used if the claimant is ‘currently registered or licensed in any Australian state (including Territory) or New Zealand and you are applying for recognition of that occupation in New South Wales’: T-documents, 10.
Mr Shi seeks merits review of the decision by the ROO.[6]
[6] The TTMR-NSW Act provides that a refusal decision by a local registration authority is subject to merits review by this Tribunal: see Trans-Tasman Mutual Recognition (New South Wales) Act 1996 (NSW) Schedule, s 33(1) (TTMR- NSW Act)
The application was heard on 17 January 2024. The Respondent’s solicitor, Mr P. McAdam, did not seek to defend the grounds for the adverse registration decision, which he maintains is correct in substance. Final submissions were filed in this matter on 31 January 2024.
Because the decision as it stands is technically incorrect, it must be set aside. However, I am satisfied that the occupation for which Mr Shi is registered in New Zealand is not equivalent to the role of mechanical engineer under the DPB Act. It is not substantially equivalent to the occupation of mechanical engineer, as applied under the Design and Building Practitioners (DBP) scheme. I stress that this is not in any way a criticism of Mr Shi, who has enjoyed an accomplished career in New Zealand in an area of speciality relating to air-conditioning systems.
TRANS-TANSMAN MUTUAL RECOGNITION ACT 1996 (NSW)
As noted, the TTMR-NSW Act permits registration in equivalent occupations as between New Zealand and New South Wales (NSW).
Part 3 of the Schedule to the TTMR-NSW Act deals with occupations. This Part deals with 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 provides that the Trans-Tasman mutual recognition principle is that, subject to this Part, a person who is registered in New Zealand for an occupation is, by virtue of the TTMR-NSW Act, 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; and pending such registration, to carry on the equivalent occupation in the jurisdiction.
Importantly, the Trans-Tasman 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 an Australian jurisdiction, so long as those laws apply equally to all persons carrying on or seeking to carry on the occupation under the law of the jurisdiction; and are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
Section 18 specifies the procedure for application by notice and sets out the notice requirements. There is no contest that Mr Shi complied with these requirements.
Section 19 provides that a person who lodges a notice under section 18 with a local registration authority of an Australian jurisdiction is entitled to be registered in the equivalent occupation, as if the law of the jurisdiction that deals with registration expressly provided that registration in New Zealand is a sufficient ground of entitlement to registration.
Importantly, once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in New Zealand.
Section 22 deals with refusal of registration, and provides, inter alia, that a local registration authority may refuse the grant of registration, if… ‘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’.[7]
[7] TTMR-NSW Act clause 22(1)(c).
Section 28 sets out the general principle that 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 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).
THE DESIGN AND BUILDING PRACTITIONERS ACT 2020 (NSW)
The DBP Act is designed to improve confidence in the construction industry in NSW, particularly in relation to residential apartment buildings, following a spate of building failures resulting from poor design or execution. It regulates the design, construction, and licensing of practitioners in the construction of residential apartment buildings, boarding houses and residential care buildings.[8]
[8] The classes or types of buildings are prescribed in section 12 of the Design and Building Practitioners Regulation 2021 (DBP Regulation) to be class 2, 3 and 9c buildings. Class 2 buildings are residential apartment buildings, class 3 buildings are residential buildings that are neither houses or residential apartment buildings, and class 9c buildings are residential care buildings that may contain residents who have various care needs.
Section 42 of the DBP Act provides that the Design and Building Practitioners Regulation 2021 (NSW) (‘the Regulations’) may make provision for the registration of classes of professional. Professional engineers are identified as a discrete class. Section 97 sets out various pathways for qualification as a professional engineer.
Clause 32 of Schedule 1 of the Regulations provides that a registered professional engineer who holds registration as a ‘professional engineer—mechanical’ is authorised to carry out professional engineering work in an area of mechanical engineering.
Part 5 of Schedule 2 of the Regulations sets out the requirements for professional engineers. Clause 26 governs experience and clause 27 governs knowledge and skills.
26 Experience—all classes of professional engineer
Must have 5 years recent relevant practical experience.
27 Knowledge and skills—all classes of professional engineer
(1) Pathway 1
(a) Knowledge
Must know and understand the following, to the extent that they are relevant to the prescribed area of engineering to which a particular class of registration as a professional engineer relates—
(i) engineering principles for natural and physical science and sustainable engineering,
(ii) mathematics, numerical analysis, statistics and computer and information sciences,
(iii) specialist knowledge,
(iv) engineering design and construction, and the physical, natural and environmental factors that may impact the design and construction.
(b) Skills
Must be able to do the following, to the extent that the skill is relevant to the prescribed area of engineering to which a particular class of registration as a professional engineer relates—
(i) apply established engineering methods to engineering issues,
(ii) apply engineering techniques, tools and resources,
(iii) apply systematic engineering synthesis and design processes,
(iv) apply systematic approaches to the management of engineering projects.
(2) Pathway 2
(a) Knowledge
No additional knowledge other than the knowledge required to be recognised or registered as a professional engineer by a recognised engineering body.
(b) Skills
No additional skills other than the skills required to be recognised or registered as a professional engineer by a recognised engineering body.
(3) Pathway 3
(a) Knowledge
No additional knowledge other than the knowledge required—
(i) to be recognised or registered as a professional engineer by a professional body of engineers that operates with a professional standards scheme, and
(ii) to satisfy the knowledge requirements of the professional standards scheme.
(b) Skills
No additional skills other than the skills required—
(i) to be recognised or registered as a professional engineer by a professional body of engineers that operates with a professional standards scheme, and
(ii) to satisfy the skill requirements of the professional standards scheme.
Clause 32 relates specifically to mechanical engineers:
32 Professional engineer—mechanical
(1) Pathway 1—qualifications. At least 1 of the following—
(a) an accredited 4 year full-time or equivalent part-time undergraduate bachelor degree in mechanical engineering or engineering with a major in mechanical engineering,
(b) an accredited postgraduate masters degree in—
(i) mechanical engineering, or
(ii) engineering with a major in mechanical engineering,
(c) a non-accredited qualification that has been assessed as being equivalent to an accredited qualification in paragraph (a) or (b)—
(i) for a qualification that was conferred by an Australian university or tertiary institution—by an Australian signatory to the Washington Accord, or
(ii) for a qualification that was conferred by a foreign university or tertiary institution—by an assessing authority for the skilled occupation of mechanical engineer.
(2) Pathway 2—qualifications. Recognition or registration as a professional engineer in an area of mechanical engineering by a recognised engineering body.
(3) Pathway 3—qualifications. Recognition or registration as a professional engineer in an area of mechanical engineering by a professional body of engineers that—
(a) operates with a professional standards scheme, and
(b) requires the successful completion of a qualification relevant to carrying out professional engineering work in accordance with the professional standards scheme.
Pathway 1 is by qualifications. Pathway 2 is by recognition or registration as a professional engineer by an assessing authority for the skilled occupation of mechanical engineer. Pathway 3 is by recognition or registration as a professional engineer in an area of mechanical engineering by a recognised engineering body.
These pathways and the associated standards apply if a person applies directly for registration as a mechanical engineer.
THE PRESENT CLAIM
Mr Shi holds a Graduation Certificate in heating, ventilation, and air-conditioning engineering, awarded in 1991 from Shenyang University in the People’s Republic of China. This qualification was assessed by the New Zealand Qualification Authority (NZQA) as comparable to the educational level of a two-year diploma from a New Zealand polytechnic.[9]
[9] T-documents, 28.
He also holds a Certificate in Refrigeration and Air Conditioning (Level 2) from the Manukau Institute of Technology, an approved Institute of Technology accredited under the provisions of the Education Act 1989 (NZ).[10]
[10] T-documents, 29.
The Applicant provided his curriculum vitae to the Tribunal.[11] The curriculum vitae sets out his extensive employment history in the areas of heating, ventilation and air-conditioning over some two decades in New Zealand. From 2003 to 2009, the Applicant held technician roles involving the installation and maintenance of air-conditioning and refrigeration systems for domestic and commercial purposes. Since 2009, the Applicant has assumed managerial roles in the same area and was responsible for the design and project management aspects within these companies.
[11] T-documents, 31-32.
The Applicant also outlines his main professional achievements in his curriculum vitae. These encompass his various qualifications for his participation in training courses across China and New Zealand and his membership in several engineering and building associations in New Zealand. Since 11 March 2019 he has been a member of Engineering New Zealand.
He has provided a certificate indicating that he was a financial member of the Institute of Refrigeration Heating and Air Conditioning Engineers of New Zealand Inc. from 1 January – 31 December 2023.[12]
[12] T-documents, 35.
He also provided a Professional Indemnity, Certificate of Insurance, issued in the name of Tempro Refrigeration and Air-Conditioning Ltd for ‘Professional services Design, Specification & Advice in respect of HVAC Systems. Building WOF inspections’, for the period 6 August 2022 to 6 August 2023.
Current registrations in New Zealand
Apart from his qualifications, certificates and work history, Mr Shi relies on two categories of registration, as an Independent Qualified Person (IQP), and as a Producer Statement Author.
Registration as an Independent Qualified Person (IQP)
Mr Shi has been registered under the Building Act 2004 (NZ) as an IQP across 6 principalities or districts in New Zealand.[13]
[13] T-documents, 15-22.
These registrations are issued under the Building Act 2004 (NZ). Mr Shi is authorised to undertake the inspection, maintenance reporting of building features limited to mechanical ventilation or air condition systems. There is no reference to the design of building elements, the integration of plans, or the signing of compliance declarations certifying that designs comply with the stringent statutory requirements such as those provided under the DBP legislation. In NSW, such functions can only be performed by a professional engineer registered under the DBP Act.
The Respondent submits that the IQP registrations relied upon by Mr Shi are not in “equivalent occupations” as they are not substantially the same (pursuant to the general principle in section 28 of the Schedule to the TTMR-NSW Act) as the registration sought by Mr Shi.
Registration as a Producer Statement Author
Mr Shi is registered as a Producer Statement Author by the Auckland Council.[14] The letter of confirmation dated 3 November 2020 states:
The information provided demonstrates that you have the experience and qualifications to satisfy Council, that you have the competence to issue producer statements.
Please note that Council has accepted the information provided in good faith and will rely upon any producer statements you might issue to demonstrate compliance with the New Zealand Building Code subject to the limitations set out in the below table.
[14] T-documents, 23.
Building complexity:
Refer to Auckland Council Producer Statement Policy – AC2301
Building complexity listed on Register (Low/Med/High) Low/Med Type or work:
Mechanical
Practice Field: Mechanical services - contract work up to a total value of $250,000 Expiry Date: 27 October 2023
The role of a Producer Statement Author is explained in a policy document produced by the Auckland Council – AC2301 (the Policy). This is an internal document and does not have legislative force.
Part 1 of the Policy describes its purpose as to “provide guidance so that authors can provide producer statements during the building consenting and inspection process”. The policy relates primarily to the consent stage of the building process. I note the following features of the Producer Statement Author role.
(a)The Producer Statement Author scheme is not legislated, but rather a policy of Auckland Council;
(b)The Auckland Council is not obliged to accept a producer statement, as there is an inbuilt discretion (4.1(a)). There are no penalties for a failure to comply with the Policy (other than potential de-registration as a Producer Statement Author). There are no penalty provisions in the policy as it is not legislatively based.
(c)There is no requirement to provide the types of declarations provided under the DBP Act (design compliance declarations). Under the DBP Act, there are penalties for failing to provide a design compliance declaration,[15] and the Secretary may issue a stop work order should work likely be carried out in contravention of the Act.[16] An example of a stop work order would be where a building practitioner is undertaking building work without a design compliance declaration.[17] There is no such provision in the Producer Statement Policy.
[15] Design and Building Practitioners Act 2020 (NSW) s 9 (‘DBP Act’).
[16] DBP Act s 89.
[17] DBP Act s 19.
Auckland Council takes a risk-based approach to the acceptance of producer statements. The levels of risk are set out at paragraph 27.7 of the Policy. There are 3 levels of risk – low, medium and high.
(a)Low risk is up to 3 stories in height;
(b)Medium risk is more expansive, set out at paragraph 27.13, and
(c)High risk work involves design or construction of complex buildings of importance level 3; 4 and 5 or multi-storey (4 or more storey) buildings; complex specific design or envelope design.
According to the letter of confirmation, Mr Shi is registered for low/medium complexity. Such buildings are not necessarily within the scope of design work under the DBP Act.
Accordingly, the Respondent submits that Mr Shi’s registration as a Producer Statement Author is not an equivalent occupation for the purposes of the entitlement to registration set out in section 19 of the Schedule to the TTMR-NSW Act. A Producer Statement Author is not “substantially the same”, as the role of a mechanical engineer under the DPB Act. Moreover, the class of buildings to which each role relates are significantly different. In short, he is not registered in New Zealand as a Producer Statement Author for the same category of buildings as provided for under the DBP Act.
I reiterate what was said above in relation to the process of establishing equivalence. This requires a comparison of the functions undertaken in the respective occupations, as well as the eligibility requirements to obtain registration. The focus of the exercise is upon the formal requirements as laid down in the respective jurisdictions, rather than the personal employment experience of the Applicant.
I am mindful of the pathways for registration as a mechanical engineer under the DPB Act, which are set out above.
Mr Shi does not have equivalent qualifications to satisfy Pathway 1. Pathway 2 and 3 depend upon recognition or registration as a professional engineer by an assessing authority or recognised engineering body.
I do not consider that his current registration as a Producer Statement Author and as an Independent Qualified Person provide a sufficient basis for registration under the DPB Act as a mechanical engineer. I have also examined the various certificates provided by Mr Shi.
My conclusion is that there is no equivalence between his qualified occupation in New Zealand and that for which he seeks registration under New South Wales under the TTMR-NSW Act.
I therefore consider that the correct and preferrable decision is to refuse Mr Shi’s application for registration as a mechanical engineer under the TTMR-NSW Act.
DECISION
The decision of the Respondent’s delegate dated 19 May 2023 is set aside and substituted with a decision that Mr Shi is not entitled to registration pursuant to the Trans-Tasman Mutual Recognition (New South Wales) Act 1996 (NSW) to registration under the Design and Building Practitioners Act 2020 (NSW) as a mechanical engineer.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of
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Associate
Dated: 3 July 2024
Date(s) of hearing: 17 January 2024 Date final submissions received: 31 January 2024 Applicant: In person Solicitors for the Respondent: P McAdam, NSW Department of Customer Service
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