Strachan and Victorian Building Authority

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Strachan and Victorian Building Authority [2019] AATA 4891 (18 November 2019)

Division:GENERAL DIVISION

File Numbers:         2017/1328, 2017/1329 and 2017/1331

Re:Ben Strachan

APPLICANT

AndVictorian Building Authority

RESPONDENT

DECISION

Tribunal:Senior Member C.J. Furnell

Date:18 November 2019

Place:Melbourne

The Tribunal sets aside each decision under review and, in substitution for the decisions so set aside, decides to grant Mr Strachan registration under s 20(2) of the Mutual Recognition Act 1992 with respect to the occupations in relation to which he sought registration.

..[sgd]......................................................................

Senior Member C.J. Furnell

Catchwords

MUTUAL RECOGNITION – application of Mutual Recognition Act 1992 – registered builder in Tasmania – refusal of registration as builder in Victoria – postponement of registration – effect of Andriotis – misapplication of good character test – effect of notification under section 19 Mutual Recognition Act 1992 – entitlement to registration – decisions under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Constitution
Building Act 1993 (Vic)
Building Act 2000 (Tas)
Mutual Recognition Act 1992 (Cth)
Mutual Recognition (Victoria) Act 1998

Occupational Licensing Act 2005 (Tas)

Cases

Bhattarai and Migration Agents Registration Authority (Migration) [2018] AATA 3151
Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255
Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Director-General of Social Services v Hales (1983) 47 ALR 281
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Frugtniet v Australian Securities and Investments Commission (2019) 367 ALR 695;
[2019] HCA 16
Gee and Director-General of Social Services (1981) 3 ALD 132
Hutchinson v Comcare [2019] FCA 1440
Johanson and the Civil Aviation Safety Authority (2012) 127 ALD 195; [2012] AATA 239
Kowalski and Repatriation Commission [2008] AATA 903
Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753
Linfox Australia Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2019] FCAFC 131
LQTF and National Disability Insurance Agency [2019] AATA 631
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469
Morgan and Secretary, Dept of Social Services (Social Services Second Review) [2019] AATA 17
Nelson and Repatriation Commission (2007) 94 ALD 418; [2007] AATA 1069
Radge and Commissioner of Taxation (2007) 95 ALD 711; [2007] AATA 1317
Re Carson and Comcare [2011] AATA 103
Re Cleary and Nurses’ Board of the Northern Territory (1996) 41 ALD 395
Re Filsell and Comcare (2009) 109 ALD 198
Re Western Australian International Education Marketing Group and Australian Trade Commission [2003] AATA 1267
Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Superannuation Warehouse Australia Pty Ltd and Australian Securities and Investments Commission [2019] AATA 88
Victoria Legal Aid v Kuek and Another (2010) 26 VR 700
Taylor v Department of Social Security (1988) 79 ALR 327
Victorian Building Authority v Andriotis [2019] HCA 22
X v…

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Details
Case
[2019] AATA 4891
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Strachan for review of decisions made by the Victorian Building Authority (the Authority) to refuse his registration as a builder in Victoria. Mr Strachan was registered as a builder in Tasmania and sought registration in Victoria under the *Mutual Recognition Act 1992* (Cth). The Authority had initially made decisions in October 2016, which Mr Strachan contended were operative decisions refusing his registration. Subsequently, in February 2017, the Authority purported to make further decisions refusing registration on the grounds that Mr Strachan was not of good character, as required by the *Building Act 1993* (Vic). The Administrative Appeals Tribunal (AAT) was required to determine which set of decisions was the subject of its review.

The primary legal issue before the Tribunal was to identify the operative decisions that affected Mr Strachan's rights and were therefore amenable to review. The Tribunal also had to consider the scope of its review powers, particularly in light of the High Court's decision in *Frugtniet*, which clarified that the AAT stands in the shoes of the original decision-maker and is subject to the same constraints. This includes only taking into account considerations that the original decision-maker could have considered at the time of the original decision.

The Tribunal reasoned that the February 2017 decisions were not operative to affect Mr Strachan's rights, as they merely affirmed the earlier October 2016 decisions. The earlier decisions were considered operative because they refused registration and did not give effect to Mr Strachan's immediate entitlement to be registered under the *Mutual Recognition Act 1992*. The Tribunal applied the principle that it should review the operative decision that affects a person's rights, rather than a subsequent decision that merely affirms or varies it. Furthermore, the Tribunal confirmed that a decision must be made in purported exercise of powers conferred by a relevant enactment to be reviewable.

The Tribunal concluded that the October 2016 decisions were the operative decisions subject to review. It set aside these decisions and substituted them with decisions granting Mr Strachan registration, finding that he had acquired an entitlement to registration upon lodging his notification under section 19 of the *Mutual Recognition Act 1992*, and that his Tasmanian registration continued to provide a sufficient ground for registration in Victoria.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Following the October 2016 decisions, the Authority purported to make a decision to refuse registration to Mr Strachan on 9 February 2017 with respect to each relevant occupation because it was not satisfied that he was of good character (the February 2017 decisions). The requirement to be so satisfied was said by the Authority to arise under a particular provision of Victoria’s Building Act 1993. Which of the two sets of decisions, the October 2016 decisions and the February 2017 decisions, is the subject of the Tribunal’s review? I have concluded that it is the former set. First, the February 2017 decisions to refuse registration were not operative to affect Mr Strachan’s rights. While in making them, the Authority “sought to bring matters to some finality or to make an adjudication,”[35] and so arguably make a “decision” they were not, at law, effective to alter rights or impose liabilities.[36] In effect, they merely affirmed the earlier, deemed, decisions (the October 2016 decisions). It was those earlier decisions that affected Mr Strachan’s rights by not giving effect to what was then Mr Strachan’s immediate entitlement to be registered (a point to which I will return), and by refusing registration. Each of those earlier decisions was “a decision in fact that was affecting rights and liabilities even though the decision had not been lawfully made.”[37][35] Bhattarai and Migration Agents Registration Authority (Migration) [2018] AATA 3151 at [39][36] Director-General of Social Services v Hales (1983) 47 ALR 281 at 305-306; see also Nelson and Repatriation Commission [2007] AATA 1069 at [41]-[47][37] Radge and Commissioner of Taxation [2007] AATA 1317 at [24] Hence, it is the set of earlier operative decisions that ought to be the subject of review by the Tribunal. They were the operative decisions. In this regard, as was noted in Gee:[38]It is inconsistent with the tenor of the Act that the Tribunal should concern itself not with an operative decision which affects a person’s rights but merely with a decision which has simply affirmed or varied the operative decision. Moreover, the Tribunal would not be able effectively to use the power conferred by s 43 of the Act to set aside the decision under review and to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal …[38] Gee and Director-General of Social Services (1981) 3 ALD 132 at 141; see also LQTF and National Disability Insurance Agency [2019] AATA 631 at [37] Second, while the invalidity of a decision might not preclude the Tribunal’s review of it,[39] in order to be reviewable by the Tribunal, a decision still must be one made in purported exercise of powers conferred by a certain type of enactment, being an enactment that provides that applications may be made to the Tribunal for review of decisions made in exercise of powers conferred by the enactment.[40] [39] Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307[40] Administrative Appeal Tribunal Act 1975, s25; Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 315-316

Ratio Decidendi

Legal Principle Established

In the recent decision of the High Court of Australia in Frugtniet,[44] in describing that role, the Tribunal was (with my emphasis) said to:[be] …not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision. Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide…[45][S]tand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints.The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review.[46] [Accordingly, the]… AAT has no jurisdiction to make a decision on the material before it taking into account a consideration which could not have been taken into account by the primary decision-maker in making the decision under review…[47][44] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16[45] Frugtniet at [14]-[15] per Kiefel CJ, Keane and Nettle JJ[46] Frugtniet at [51] per Bell, Gageler, Gordon and Edelman JJ[47] Frugtniet at [53] per Bell, Gageler, Gordon and Edelman JJMR STRACHAN’S ENTITLEMENT TO REGISTRATION AND LOSS OF TASMANIAN REGISTRATION As mentioned earlier, on lodgement of his notification under s19 of the MR Act, Mr Strachan acquired an entitlement to registration and was deemed to have been registered in Victoria “pending the grant or refusal of registration”. Pursuant to s20(3) of the MR Act, once registered, “the” entitlement of Mr Strachan to registration would have continued “whether or not registration…ceases…” (in his case) in Tasmania. Before considering what might be implied from this section, I pause to clarify two aspects of it. First, the reference to “registered” would appear to be a reference to the substantive registration under (in our case) Victorian law which occurs when effect is given to the entitlement to registration conferred by the MR Act[48] on the “sufficient ground” of registration (again, in our case) in Tasmania. Further, given the context, the reference to “the” entitlement to registration would appear to be a reference to the entitlement that arises under s20(1) of the MR Act on lodgement of a s19 notification.[48] MR Act, s20