Singh and Chief Executive, Department of Justice and Attorney-General

[2022] AATA 39

Singh and Chief Executive, Department of Justice and Attorney-General [2022] AATA 39 (14 January 2022)

Division:GENERAL DIVISON

File Number:2021/2800                    

Re:Gurwinder Singh  

APPLICANT

Chief Executive, Department of Justice and
Attorney-GeneralAnd  

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:14 January 2022

Place:Brisbane

The Tribunal affirms the decision under review.

............[SGD]..................................................

Member D Mitchell

CATCHWORDS

MUTUAL RECOGNITION – application of mutual recognition principles where licence granted with conditions – where licence being relied upon for mutual recognition is subject to a condition – where that condition is further imposed in issuing the new licence pursuant to mutual recognition principles – Real Estate Agent Licence – decision under review affirmed

LEGISLATION

Estate Agents Act 1980 (Vic)

Mutual Recognition Act 1992 (Cth)

Mutual Recognition (Queensland) Act 1992 (Qld)

Mutual Recognition (Victoria) Act 1998 (Vic)

Property Occupations Act 2014 (Qld)

CASES

Sande v Registrar, Supreme Court of Queensland and Anor (1996) 64 FCR 123

REASONS FOR DECISION

Member D Mitchell

14 January 2022

INTRODUCTION

1. Mr Gurwinder Singh (the Applicant) applied to the Queensland Office of Fair Trading for a Real Estate Agent Licence in accordance with the provisions of the Mutual Recognition Act1992 (Cth) (Mutual Recognition Act).[1]

   [1]     Exhibit 1, T Documents, T2, pages 6-16, Mutual Recognition Application Form 1.

2. The Applicant sought to rely upon his Victorian Estate Agent’s Licence which was subject to a condition.[2]

   [2]     Exhibit 1, T Documents, T2, pages 8 and 19, Mutual Recognition Application Form 1 and Estate Agent’s Licence.

3. On 26 February 2021, a delegate of the Chief Executive, Department of Justice and Attorney-General (the Respondent), pursuant to the Mutual Recognition Act, granted the Applicant a Real Estate Agent Licence with the same condition outlined on his Estate Agent’s Licence.[3]

   [3]     Exhibit 1, T Documents, T1, pages 3-5, Real Estate Agent Licence and Information Notice.

4. The Applicant sought review of that decision, by way of an application made to this Tribunal, on 4 May 2021.[4]

   [4]     Exhibit 1, T Documents, T6, pages 24-30, Application for Review of Decision.

5. A Hearing was held on 17 December 2021. The Applicant appeared by Microsoft Teams, was self-represented and gave evidence under affirmation.

   THE LAW

   Mutual Recognition

6. The purpose of the mutual recognition legislation of the Commonwealth States and Territories is to promote the goal of freedom of movement of goods and service providers in a national market in Australia. This has been established by enactment of the Mutual Recognition Act and equivalent legislation enacted by participating jurisdictions, of which, include Victoria and Queensland.[5]

   [5]     Queensland enacted its participation via the implementation of the Mutual Recognition (Queensland) Act 1992 (Qld). Victoria enacted its participation via the implementation of the Mutual Recognition (Victoria) Act 1998 (Vic).

7. The mutual recognition legislation establishes a scheme for mutual recognition of regulatory standards for goods and occupations throughout the country.

8. Relevantly, the intention of the mutual recognition scheme in relation to service providers is set out in Sande v Registrar, Supreme Court of Queensland and Anor (1996) 64 FCR 123 at 144:

   The Act is intended to remove artificial barriers to the mobility of services and labour caused by regulatory differences among the States and Territories of Australia. If a person is registered to carry out an occupation in one State or Territory, then he or she should be able to be registered and to carry on the equivalent occupation in any other State or Territory, without undergoing examinations or other assessments with respect to educational qualifications and experience. Nevertheless, the Act preserves the right of the State or Territory in which the applying person seeks to practise (described in the Act as the second State) to regulate the manner of carrying on an occupation in that State, so long as the laws of that State apply equally to persons carrying on or seeking to carry on the occupation under the law of the second State (ss 17 and 20 of the Act).

9. The matter before the Tribunal relates to the application for mutual recognition of an occupation and the imposition of conditions on the resulting registration (or in this case, licence), which is dealt with by Part 3 of the Mutual Recognition Act. Part 3 relevantly provides:

   Division 1—Preliminary

   16       Mutual recognition

   (1)       The mutual recognition principle as applying to occupations is as set out in   this Part.

   (2)       This Part deals with the ability of a person who is registered in connection   with an occupation in a State to carry on an equivalent occupation in another               State.

   (3)       In this Part, the first‑mentioned State is called the first State, and the other   State is called the second State.

   17       Entitlement to carry on occupation

   (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.

   ……

   Division 2—Entitlement to registration

   19       Notification to local registration authority

   (1)       A person who is registered in the first State for an occupation may lodge a           written notice with the local registration authority of the second State for the    equivalent occupation, seeking registration for the equivalent occupation in      accordance with the mutual recognition principle.

   ……

   20       Entitlement to registration and continued registration

   (1)       A person who lodges a notice under 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.

   (2)       The local registration authority may grant registration on that ground and   may grant renewals of such registration.

   ……

   (5) The local registration authority may impose conditions on the registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person’s registration in the first State or that are necessary to achieve equivalence of occupations.

   ……

   23       Refusal of registration

   (1)       A local registration authority may refuse the grant of registration if:

   (a)       any of the statements or information in the notice as required by                   section 19 are materially false or misleading; or

   (b)       any document or information as required by subsection 19(3) has not                   been provided or is materially false or misleading; or

   (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.

   ……

   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 under this Part so as to achieve          equivalence between occupations in different States.

   ……

10. Section 4 of the Mutual Recognition Act provides that, unless the contrary intention appears:

    conditions, when used in relation to occupations, means conditions, limitations or restrictions.

    ……

    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/Licencing Scheme

11. The regulation of the Real Estate industry in Victoria is governed by the Estate Agents Act 1980 (Vic) (Estate Agents Act), together with associated subordinate legislation. The Estate Agents Act provides that a person shall not exercise, carry on, act as or hold themselves out to be estate agents or to undertake the business of an estate agent unless they are a licensed estate agent. The penalty for an individual found to be carrying out such activities is 500 penalty units or imprisonment for 12 months.[6]

    [6] Section 12(1) of the Estate Agents Act.

12. The Estate Agents Act outlines the eligibility requirements to obtain an estate agent’s licence,[7] that conditions may be imposed before an estate agent’s licence is granted[8] and the requirements placed on agents and their representatives as licensed estate agents.[9]

    [7] Section 14 of the Estate Agents Act.

    [8] Section 21A of the Estate Agents Act.

    [9]     Part IV of the Estate Agents Act.

13. An Estate Agent is defined in section 4 of the Estate Agents Act as:

    estate agent or agent means any person (whether or not he carries on any other business) who exercises or carries on or advertises or notifies or states that he exercises or carries on or that he is willing to exercise or carry on or in any way holds himself out to the public as ready to undertake the business of—

    (a) selling buying exchanging letting or taking on lease of or otherwise dealing with or disposing of;

    (b)negotiating for the sale purchase exchange letting or taking on lease of or any other dealing with or disposition of;

    (c)collecting rents for—

    any real estate or business on behalf of any other person

14. The regulation of Real Estate Agents is similarly governed by the Property Occupations Act 2014 (Qld) (Property Occupations Act), together with associated subordinate legislation. The Property Occupations Act provides that a person must not, for reward, perform an activity that may be done under the authority of a property agent licence[10] unless they hold the relevant licence, and the performance of such activities is authorised under that licence or otherwise by the Act. The penalty for an individual found to be carrying out such activities is 200 penalty units or imprisonment for 2 year[11].

    [10] A property agent is an auctioneer or real estate agent: section 15 of the Property Occupations Act.

    [11] Section 97 of the Property Occupations Act.

15. The Property Occupations Act outlines the eligibility requirements to obtain a real estate agent licence,[12] that conditions may be imposed before a real estate agent licence is granted[13] and the requirements placed on agents and their representatives as licensed real estate agents.[14]

    [12] Part 2 of the Property Occupations Act.

    [13] Section 54 of the Property Occupations Act.

    [14]    Part 3 of the Property Occupations Act.

16. Section 26 of the Property Occupations Act provides that:

    (1)A real estate agent licence authorises the holder of the licence to perform the following activities as an agent for others for reward—

    (a) to buy, sell (other than by auction), exchange or let real property or interests in real property;

    (b) to buy, sell (other than by auction), exchange, or let businesses or interests in businesses;

    (c) to negotiate for the buying, selling, exchanging, or letting of something mentioned in paragraph (a) or (b);

    (d) to collect rents.

    (2)A real estate agent may perform the activities mentioned in subsection (1) in the carrying on of a business, either alone or with others, or as an employee of someone else.

    APPLICATION PROCESS

17. On 25 January 2021, the Applicant made a mutual recognition application seeking a licence for the property occupation classified as ‘Real Estate Agent’ in Queensland.[15]

    [15]    Exhibit 1, T Documents, T2, pages 6-16, Mutual Recognition Application Form 1.

18. The Applicant sought to rely on his then current Estate Agent’s Licence issued in Victoria.[16] That licence was issued, pursuant to the Mutual Recognition Act, on 24 September 2019 and included the following condition:[17]

    The licensee must not advertise or undertake the business of selling or negotiating for the sale of any real estate or business on behalf of any other person by conducting or attempting to conduct an auction.

    [16]    Exhibit 1, T Documents, T2, pages 8 and 19, Mutual Recognition Application Form 1 and Estate Agent’s Licence.

    [17]    Exhibit 1, T Documents, T2, page 19, Estate Agent’s Licence.

19. On 1 February 2021, the Respondent sought confirmation from the Victorian Business Licensing Authority of the Applicant’s licence/registration type, number, condition/restrictions and that the declaration he had made was correct.[18]

    [18]    Exhibit 1, T Documents, T3, page 20, Request for information sent to the Business Licensing Authority.

20. On 2 February 2021, the Business Licensing Authority provided verification that the details provided by the Applicant in relation to his Estate Agent’s Licence were correct.[19]

    [19]    Exhibit 1, T Documents, T4, pages 21-22, Response provided by the Business Licensing Authority.

21. On 26 February 2021, the Respondent issued the Applicant with a Real Estate Agent Licence with effect from 25 January 2021, imposing the identical condition to that which appeared on his Estate Agent’s Licence.[20]

    [20]    Exhibit 1, T Documents, T1, page 3, Information Notice.

22. In the Information Notice – Imposing a condition, dated 26 February 2021, the Respondent provided that the reasons for imposing a condition on the Applicant’s Real Estate Agent Licence were:[21]

    Applying for licence by mutual recognition under the Act enables a person, who holds a licence interstate, to obtain the equivalent licence in another State.

    Section 20(5) of the Act states that the local licencing authority may impose conditions on licences, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were effected apart from this Part, unless they are conditions that apply to the person’s licence in the first State or that are necessary to achieve equivalence of occupations.

    It has been noted that your licence currently held in Victoria was issued subject to the condition/s stated above.

    As your licence in Queensland has been approved subject to an interstate licence and must be equivalent to your interstate licence, the chief executive has added the condition/s as held on your interstate licence, to your licence issued in Queensland.

    [21]    Exhibit 1, T Documents, T1, pages 4-5, Information Notice.

23. On 4 May 2021, the Applicant made an application to this Tribunal seeking review of the Respondent’s decision to impose a condition on his Real Estate Agent Licence.[22] In making that application, the Applicant attached a Statement of Attainment in relation to accredited units he had completed as part of a Certificate IV in Property Services (Real Estate).[23] The Applicant provided that the reason he claimed the Respondent’s decision to impose a condition on his licence was wrong was because:[24]

    I originally got the SOA in Queensland, I can send a copy of it if required as there was no option to attach additional documents. I finished the course in QLD as we were planning to move here but for some reason, we couldn’t make it by the time I had to continue in VIC. When I applied they put this restriction because their units are different which I was told. Hence, if I have completed the course here, I have completed the course [sic] why would I still be getting the same restriction?

    [22]    Exhibit 1, T Documents, T6, pages 24-30, Application for Review.

    [23]    Exhibit 1, T Documents, T6, pages 38, Statement of Attainment – Certificate IV in Property Services       (Real Estate).

    [24]    Exhibit 1, T Documents, T6, pages 28, Application for Review.

    ISSUES

24. The issue before the Tribunal is whether the condition imposed by the Respondent on the Applicant’s Real Estate Agent Licence pursuant to section 20(5) of the Mutual Recognition Act should have been so imposed.

    CONTENTIONS

25. At Hearing, the Applicant contended that the licence number he was assigned for the Real Estate Agent Licence he was issued by the Respondent was the same licence number he was issued with in January 2019 which did not include any conditions. As such, he contended that no records were matched and therefore, the Respondent had made an incorrect decision.

26. The Applicant told the Tribunal that:

    ·He first got his Real Estate Agent Licence in Queensland in 2019.

    ·He then moved to Victoria and used that licence to obtain an Estate Agent’s Licence by mutual recognition.

    ·It was clear, when looking at the Victorian Estate Agent’s Licence, that it was issued pursuant to mutual recognition so he does not understand why the Respondent, in granting him his current licence, would not have looked in the system, seen his initial licence was from Queensland and taken that into consideration when granting the licence.

    ·He did not understand how he could have been issued with the same licence number, yet the Respondent did not consider his previous Queensland registration.

    ·When he arrived back in Queensland in January 2021, he went to the Respondent’s shopfront and wanted to have his Real Estate Agent Licence reactivated. He took his Estate Agent’s Licence with him and was told at the counter that he should apply using the mutual recognition forms, and that he would be asked for his expired Queensland licence, or for further information, if required.

    ·After being issued with the Real Estate Agent Licence, he contacted the Respondent in May 2021 to try and sort out the condition but was told the only way he could have it sorted out was to make an application to the AAT, so that is what he did.

    ·He was then told by the Respondent, during the Tribunal process, that he could apply to have the condition removed from his licence for an $89.75 fee; however, he had already paid the Tribunal application fee.

    ·He is stressed about the process. Had he been told in May to apply to have the condition removed, that is what he would have done, rather than make an application to the Tribunal.

    ·He has been mucked around by the system and wants to leave it all in the Tribunal’s hands.

    ·His Principal (employer) asked that he have the condition removed from his licence.

    ·When asked what the practical effect of the condition on his licence was, that:

    oHe cannot conduct auctions, which is fine as he does not have an auctioneer’s licence.

    oIn an abundance of caution, his Principal has said that he is not to list properties for sale by auction and is not to be involved in such sales due to the uncertainty of the effect of the condition.

    oIf there was no condition on his licence, he believes he could list property for sale by auction.

    oIn Victoria, he did not get involved with auctions at all, as he thought the condition meant he could not list property for sale by auction.

    ·He understands that his Queensland Real Estate Agent Licence that was issued in 2019 expired in 2020, so when he moved back to Queensland in 2021, he did not have a licence to work as a real estate agent.

    ·He agreed he wanted to get back to work as soon as possible, as he was initially out of work.

1. The Applicant contended that, as he was issued with an unrestricted licence in 2019, he continues to meet the educational requirements in Queensland to be issued with a Real Estate Agent Licence, without the condition not allowing him to engage with the auction process.

2. The Respondent did not dispute the Applicant’s qualifications as, in mutual recognition application cases, where the occupations are seen to be equivalent, no assessment is undertaken of the person’s qualifications or experience. Such assessment or evaluation is not required by virtue of the mutual recognition principles and operation of the Mutual Recognition Act.

3. The Respondent submitted that, on 28 July 2021, when the Applicant contacted them regarding the removal of the condition from his licence, that he was advised of the following:[25]

   ·     The Applicant to withdraw his application to the AAT immediately.

   ·     The Applicant to send an email to the Respondent requesting to have the condition removed from the licence along with evidence to satisfy the licence requirements to be eligible for the amendment in accordance with Section 71(3) of the Property Occupations Act 2014 (POA).

   ·     Section 71(2) of the POA requires payment for amending a condition. The current fee schedule states there is a fee of $89.75 to amend a condition of a licence.

   [25]    Exhibit 4, Submissions by the Respondent, page 2, paragraph 8.

4. The Respondent submitted that once the Applicant requested the condition be amended, or in his case removed, an assessment would be made to ensure that could occur and, if he met the eligibility requirements in Queensland, the condition would be removed.[26]

   [26]    Exhibit 4, Submissions by the Respondent, page 2, paragraph 9.

5. The Respondent contended that, in accordance with section 20(5) of the Mutual Recognition Act, as the Applicant had sought to be issued with a Real Estate Agent Licence pursuant to the mutual recognition principles, it was restricted to issuing a licence that ensured occupational equivalence.[27] The Respondent noted that applicants for occupational licences pursuant to the Mutual Recognition Act are deemed to be licensed and eligible to work in Queensland once they possess a receipt for the applicable fee and hold a current, equivalent licence, thereby allowing them to commence work immediately and effectively, bypassing the processing time included where a standard licence application is made.[28]

   [27]    Exhibit 4, Submissions by the Respondent, page 1, paragraphs 5-6.

   [28]    Exhibit 4, Submissions by the Respondent, page 2, paragraph 7.

6. In relation to the Applicant’s reference to the same licence number being issued to him when his mutual recognition application was granted on 26 February 2021, as he had previously held a Queensland Real Estate Agent Licence from 15 January 2019 until it expired on 15 January 2020, the Respondent submitted that the licence number attaches to a person. As such, where a person reapplies for a licence or seeks to be licensed for further licence categories, the one licence number continues to apply, with the activities being authorised being updated upon each grant of licence, renewal, or amendment. This is an administrative facility.

7. The Respondent contended that, in making the decision on 26 February 2021 to issue the Applicant with a Real Estate Agent Licence pursuant to the Mutual Recognition Act, it was unable to make any other decision than to grant that licence with the same conditions as the Applicant’s Victorian Estate Agent’s Licence and as such, the Tribunal should affirm that decision.

   CONSIDERATION

8. In this matter, the Applicant is seeking mutual recognition of his Estate Agent’s Licence, issued by the Victorian Business Licensing Authority, in order to be issued with a Queensland Real Estate Agent Licence.

9. There is no suggestion in this matter that the occupation of a holder of an Estate Agent’s Licence in Victoria and that of a Real Estate Agent Licence in Queensland are not equivalent occupations. The issue in this matter relates to the carryover of the condition placed on the Applicant’s Estate Agent’s Licence (being the licence he seeks to be recognised for the purpose of being issued with a Real Estate Licence) to the issued Real Estate Agent Licence.

10. The Tribunal understands that the Applicant contends that he had previously held an unrestricted Real Estate Agent Licence in Queensland, has the required qualifications and experience, has been issued with the same licence number and as such, should not have subsequently be granted a licence with conditions. While the Tribunal appreciates the Applicant’s frustration, it is noted that it was his choice to seek a Real Estate Agent Licence pursuant to the Mutual Recognition Act rather than the Property Occupations Act. The Tribunal accepts that the Applicant may not have appreciated that the condition on his Estate Agent’s Licence would carry through to his Real Estate Agent Licence by doing so, and that may have, in part, been due to a miscommunication issue at the time of making his application. This, however, does not change the fact that he sought to be granted a Real Estate Agent Licence by mutual recognition.

11. The Mutual Recognition Act is clear in relation to when a registration (or in this case, a licence) can be issued and in relation to when a condition can be imposed on such a licence.

12. A person who is licensed in one state can lodge a notice seeking a licence for the equivalent occupation with another state. The second state may grant the licence, with or without conditions. In imposing conditions on a licence, the second state may not impose conditions that are more onerous than would be imposed in similar circumstances, having regard to the relevant qualifications and experience, should that licence be issued in the absence of mutual recognition principles, unless they are conditions that apply to the person’s registration in the first state, or are necessary to achieve equivalence of occupations.[29]

    [29] Section 20(1), (2) and (5) of the Mutual Recognition Act.

13. In this instance, while the occupation of an estate agent and real estate agent are accepted to be equivalent, the Applicant’s Estate Agent’s Licence includes a condition that effectively modifies the activities that licence authorises. As such, in granting a Real Estate Agent Licence, in accordance with the mutual recognition principles, the licence being granted must be equivalent to that which the Applicant sought recognition of.

14. By seeking a licence in accordance with the mutual recognition principles, where the occupations are considered to be equivalent, no assessment is undertaken in relation to the relevant formal qualifications and experience held by the person seeking the licence. The second state is relying on the assessment completed by the first state.

15. Therefore, in this case, the Tribunal considers that the correct and preferrable decision is that the Applicant be granted a Real Estate Agent Licence with the same condition applied to that which was applied to his Estate Agent’s Licence.

16. It is noted that it is open to the Applicant to, at any time, seek to have the condition removed, and while the Tribunal acknowledges the Applicant’s frustration with the licence application process, that is not a matter for the Tribunal.

    DECISION

17. For the reasons set out above, the decision under review is affirmed.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..............[SGD]...................................................

Associate

Dated: 14 January 2022

Date of hearing:

17 December 2021

Applicant:

Advocate for the Respondent:

By MS Teams

Mr Peter Rashford

Department of Justice and Attorney-General