Strachan and Victorian Building Authority
[2019] AATA 4891
•18 November 2019
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 1998Occupational 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 Minister for Immigration & Multicultural Affairs [2002] FCAFC 3Yousefi and Victorian Building Authority [2018] AATA 3542
Secondary Materials
Explanatory memorandum to the Mutual Recognition Bill 1992
House Hansard, 3 November 1992, p2432, second reading speech with respect to the Mutual Recognition Bill 1992
REASONS FOR DECISION
Senior Member C.J. Furnell
18 November 2019
In late August or early September 2016, Mr Strachan, as a person registered in Tasmania for an occupation, sought registration in Victoria for an equivalent occupation, being three categories of builder; demolisher low rise, commercial builder (limited) and domestic builder (limited).[1]
[1] The application was initially made to the Victorian Building Practitioners Board. With effect from 1 September 2016 it was abolished and replaced by the Authority: Building Legislation Amendment (Consumer Protection) Act 2016 (Vic), Div 2 of Pt 3
He did so under Victorian legislation[2] which adopts the Mutual Recognition Act1992 (MR Act).[3]
[2] Mutual Recognition (Victoria) Act 1998
[3] This adoption operated to vest in the Commonwealth Parliament power to make laws with respect to matters referred to the Parliament by Victoria’s state Parliament, being laws so adopted - see 51 (xxxvii) of the Constitution. The background to and purpose of the mutual recognition legislation is addressed at length in Yousefi and Victorian Building Authority [2018] AATA 3542 at [13]-[16]. See also Board of Examiners Under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255 at [12]-[15]
Mr Strachan’s registration in Tasmania expired in January 2017.
On 9 February 2017, the Victorian Building Authority (the Authority) purported to decide to refuse what it characterised as Mr Strachan’s application with respect to each occupation in relation to which he sought registration. It said it did so because it was not satisfied that Mr Strachan was of good character “as required under section 170(1)(c) of the Building Act”.
Mr Strachan applied to the Tribunal for review of the Authority’s decisions to refuse registration. He seeks to have the Authority’s decisions set aside and for the Tribunal to decide to grant registration. The only ground on which registration may be granted under the MR Act, however, is registration in another Australian jurisdiction[4], and Mr Strachan was not so registered at the time of the hearing.
[4] MR Act, s20(2)
While what Mr Strachan wants from the Tribunal is clear, the same cannot be said of the Authority. Ultimately, however, it would appear that the Authority wants the Tribunal to either dismiss Mr Strachan’s review application because the Tribunal has no relevant powers or set aside the Authority’s earlier decisions and to decide to refuse registration to Mr Strachan. The Authority contends that the Tribunal is at liberty to refuse registration on the basis that information in the notice Mr Strachan lodged when seeking registration in Victoria was false or misleading.
I am not limited by what the parties want. Instead, I must seek to arrive at the correct or preferable decision. Nevertheless, I have concluded that what Mr Strachan wants reflects the correct or preferable decision. In particular, I have decided to set the Authority’s decisions aside and substitute them with decisions to grant Mr Strachan registration under s20(2) of the MR Act with respect to the occupations in relation to which he sought registration.
Before outlining the reasons for my decision, I should mention the process by which it came about and some contextual issues.
HEARING PROCESS
This review proceeding was conducted “on the papers”. In particular, it was conducted without holding a hearing, by considering documents and material lodged with the Tribunal.[5]
[5] Administrative Appeals Tribunal Act 1975, s34J
Those documents and that material comprise:
(a)a statement of reasons given by the Authority pursuant to s28 of the Tribunal’s constituent legislation (SR);
(b)documents lodged by the Authority with the Tribunal on 12 April 2017 pursuant to s37 of the Tribunal’s constituent legislation (T documents);
(c)submissions made on Mr Strachan’s behalf and lodged with the Tribunal on 15 July 2019 (AS1);
(d)a Statement of Facts, Issues and Contentions lodged by the Authority with the Tribunal on 30 July 2019 in reply to Mr Strachan’s submission (RS1);
(e)submissions made on behalf of Mr Strachan in reply lodged with the Tribunal on 9 August 2019 (AS2);
(f)submissions made by the Authority on 15 August 2019 (RS2);
(g)submissions made by the Authority on 16 September 2019 (RS3); and
(h)submissions lodged on behalf of Mr Strachan on 19 September 2019 (AS3).
On 19 August 2019 the Tribunal invited the parties to make submissions as to the validity or otherwise of certain propositions. It was in response to that invitation that the RS3 and AS3 submissions were lodged.
Certain aspects of the Authority’s conduct in relation to this review process were unsatisfactory. For instance:
(a)The Authority lodged its RS2 submissions after the date set down for hearing of this matter, without any application for leave or consent to do so. They address an issue which the Authority had earlier been invited to address but had declined to address.
(b)The Authority included in its RS3 submissions a copy of an email of 9 September 2016 which, had it had the effect contended for by the Authority, may well have had a significant impact on the outcome of these proceedings. The email had not previously been provided or mentioned despite the Authority’s obligation to have included all relevant documents in the T documents. As a result of it, the Authority withdrew parts of its earlier submissions.
Conduct of this sort does little to assist the Tribunal to fulfil its objectives.[6]
[6] Compare the obligation on each party imposed by s33(1AB) of the Tribunal’s constituent legislation
ANDRIOTIS
On 7 August 2019, shortly before the hearing of this matter on the papers was due to be undertaken, the High Court of Australia published its decision in Andriotis.[7] The facts that were considered by the Court are closely analogous to those here under consideration. In particular, as here, registration in Victoria had been refused because the local registration authority was not satisfied of the applicant’s good character.
[7] Victorian Building Authority v Andriotis [2019] HCA 22 (Andriotis)
In the decision, all seven justices of the Court agreed (by way of four sets of reasons) that there was no entitlement to refuse registration on that basis. This was at least partly because the discretion afforded by the MR Act to refuse registration was exhaustively defined in the MR Act and, as so defined, it did not empower the Authority to refuse registration on character grounds.
FACTUAL CONTEXT
On 8 January 2016 Mr Strachan was registered or licensed as an accredited building practitioner under the Tasmanian Building Act 2000. That accreditation would appear to have become a building services licence issued under the Tasmanian Occupational Licensing Act 2005.[8]
[8] Occupational Licensing Act 2005, Schedule 5, Part 4,clause 1
On 22 August 2016 Mr Strachan purportedly sought registration in Victoria as a building practitioner in certain categories.
On 25 August 2016, the predecessor of the Authority advised Mr Strachan that his “application” did not constitute an effective notice under the relevant provision of the MR Act. This was due to an alleged failure by Mr Strachan to have provided all the information required in such a notice. Mr Strachan was told that he needed to provide certain additional information in order for his application to proceed.
The additional information sought from Mr Strachan was provided in various items of correspondence, culminating in an email of 5 September 2016.
The Authority contends[9] that, by email of 9 September 2016, it postponed the grant of registration to Mr Strachan pursuant to s22(1)(a) of the MR Act. I reject that contention. Registration may be postponed under that section within one month of lodgement of a notice under the MR Act seeking registration[10] if any statement or information in the notice is materially false or misleading. In the email of 9 September 2016, the Authority purported to postpone registration because it was “currently seeking to verify whether material provided in support of your application is materially false or misleading”. Neither s22(1)(a) nor any other provision of the MR Act authorised postponement of the grant of registration pending the verification of material provided by a registration applicant. Hence, there was no effective exercise by the Authority of the MR Act’s registration postponement power. Given this conclusion, I do not address the submission made on behalf of Mr Strachan that I should disregard the email.[11]
[9] RS3[10]
[10] MR Act, s21(3)
[11] AS3[52]
On 29 November 2016, the Authority advised Mr Strachan of a requirement under the Building Act 1993 (Vic) that it be satisfied that an applicant for registration be of good character before granting registration. The Authority went on to invite a response from Mr Strachan in relation to certain issues and discrepancies alleged to arise in material he had submitted, particularly in relation to his initial application for registration in Tasmania.
On 6 December 2016 Mr Strachan provided the Authority with his response to those issues and alleged discrepancies.
On 31 January 2017 Mr Strachan’s building services licence under Tasmania’s Occupational Licensing Act 2005 expired.
As I mentioned earlier, on 9 February 2017 the Authority purported to decide to refuse Mr Strachan’s “application” with respect to each occupation in relation to which he had sought registration.
As is apparent from this outline of the facts, the Authority took no effective action to postpone the grant of registration to Mr Strachan, and took no action whatsoever to refuse the grant of registration to him prior to 9 February 2017.
LEGISLATIVE CONTEXT
Under the MR Act, in 2016[12] and as a person then registered in Tasmania for an occupation,[13] Mr Strachan was entitled to be registered in Victoria for the equivalent occupation.
[12] MR Act, s17
[13] Noting that “registration” in the MR Act includes licensing required under legislation for the carrying on of an occupation; s4(1)
The entitlement of Mr Strachan to registration was subject to an exception. In particular, his entitlement in 2016 did not affect the operation of most Victorian laws that regulated “the manner of carrying on” of an occupation.[14]
[14] MR Act, s17(2)
That entitlement was also subject to Mr Strachan having notified the Authority, it being the Victorian local registration authority under the MR Act for the occupations with respect to which Mr Strachan was seeking registration, at least as from 1 September 2016. In this regard, the MR Act provides for the lodgement of notification in s19.
As is apparent from my outline of the facts, Mr Strachan lodged a s19 notification with the Authority by 5 September 2016 at the latest.
In RS2, the Authority contends that the information contained in the s19 notice is materially incorrect, when the accuracy or otherwise of that information is assessed in the context of the facts subsisting at the time of the hearing of this matter. As I perceive it, this is not a submission to the effect that Mr Strachan did not lodge a s19 notification.
In RS3, the Authority withdrew its earlier submission to the effect that no fraud was involved.[15] Instead, it submits that Mr Strachan could not be considered to have lodged a valid s19 notification if fraud was present in the procurement of his registration in Tasmania.[16] Rather coyly, however, the Authority does not submit that fraud was so present. According to the Authority, “[w]hether or not fraud is involved in this case is a matter left to the Tribunal”. I do not find that any fraud is involved in this case. The Authority does not contend that fraud is so involved, has previously expressly contended that it is not so involved[17] and has pointed to no material on which I might arrive at a finding of fraud. In its letter to Mr Strachan of 29 November 2016, the Authority raised certain issues and discrepancies which it alleged arose in material submitted by him, particularly in relation to his initial application for registration in Tasmania. The Authority has not sought to establish the validity of the allegations made in that letter. Even if it had successfully done so, however, this would not have been sufficient to arrive at a finding of fraud, especially in light of Mr Strachan’s response of 6 December 2016 to the allegations.
[15] RS3[20]
[16] RS3[15]
[17] RS2[13]
As Mr Strachan lodged a s19 notification with the Authority:
(a)He became entitled to be registered in Victoria in equivalent occupations, as if Victorian law expressly provided that registration in Tasmania is a sufficient ground of entitlement to registration.[18]
(b)The Authority became empowered to grant registration on that ground.[19]
(c)The Authority also became empowered to postpone or refuse the grant of registration within one month of lodgement of Mr Strachan’s notice.[20]
(d)The Authority became obliged to grant registration within that one month period,[21] assuming it did not (as it did not) postpone or refuse registration within that month.[22]
(e)The Authority also became obliged to give Mr Strachan written notice of any decision by it to, for example, postpone or refuse the grant of registration.[23] I note that by letter dated 10 February 2017, the Authority gave Mr Strachan notice of its decisions of 9 February 2017 to refuse registration.
(f)Mr Strachan was taken to have been registered in Victoria “pending the grant or refusal of registration”.[24] This gave rise to a deemed registration in favour of Mr Strachan, as opposed to what the MR Act characterises as substantive registration.[25]
[18] MR Act, s20(1)
[19] MR Act, s20(2)
[20] MR Act, s 21(3)
[21] MR Act, s21(1)
[22] Andriotis at [109]
[23] MR Act, s24
[24] MR Act, s25
[25] MR Act, s26
I digress here to emphasise my characterisation of s20(2) of the MR Act as a section which simply empowered the Authority to grant registration on a particular ground. Pursuant to the section, a local registration authority (such as the Authority) “may” grant registration. Use of the word “may” in the section does not connote a broad discretion to grant or to refuse registration. Instead, as used in s20(2), it simply operates to empower a local registration authority to grant registration on the one ground identified in the Act[26] (which, when applied in our case, was registration in Tasmania) and, possibly, to confer a limited discretion to refuse registration in the circumstances for refusal specifically identified in the Act.[27]
[26] Andriotis at [43]-[44] per Kiefel CJ, Bell and Keane JJ and [159] per Edelman J
[27] Andriotis at [90] per Gageler J
In light of the factual and legislative context just outlined, I turn now to address the decisions the subject of review and the nature of the Tribunal’s role in relation to them.
DECISIONS UNDER REVIEW AND TRIBUNAL’S ROLE IN RELATION TO THEM
On application made to it, the Tribunal is given jurisdiction to review decisions of a local registration authority in relation to its functions under the MR Act.[28]
[28] MR Act, s34
As a general rule, the particular decisions the subject of review in a proceeding ought to be clearly identified.[29]
[29] Taylor v Department of Social Security (1988) 79 ALR 327 at 334-albeit that on occasion it has been considered not essential to do so; Johanson and the Civil Aviation Safety Authority [2012] AATA 239, at [28]
In this matter the Authority, as a local registration authority, might be considered to have made or purportedly made a number of decisions in relation to its functions under the MR Act.
The Authority’s conduct in not granting registration on expiry of one month after lodgement of Mr Strachan’s notification under s19 might be said to reflect a decision to refuse to either grant or consider the grant of registration. This was the nature of the decision said to found the Tribunal’s jurisdiction in Lawrence[30] (and noting that, for the purposes of the Tribunal’s constituent legislation,[31] a refusal to make a decision is a decision).
[30] Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 176 ALR 305 at [47]
[31] Administrative Appeals Tribunal Act 1975, s3(3)
Here, however, there is nothing to suggest that the Authority refused to make a decision on expiry of one month after lodgement of Mr Strachan’s notification under s19. Instead, it would appear that the Authority simply failed to make a decision. A failure to decide (unlike a refusal to decide) is not a decision.[32]
[32] Re Carson and Comcare [2011] AATA 103 at [31]
This is not to say that no decision arose on expiry of that one month period. In fact, the Authority is deemed to have made a decision when that period expired. In particular, the Authority is deemed under the Tribunal’s constituent legislation[33] to have made a decision not to grant registration. Such a decision is so deemed to have been made because of the Authority’s failure to grant registration within the one month time frame prescribed by the MR Act for the granting of registration.[34]
[33] Administrative Appeals Tribunal Act 1975, s25(5)
[34] MR Act, s21(1)
In the factual context, this decision not to grant registration with respect to each relevant occupation would be deemed to have been made by no later than 5 October 2016 (the October 2016 decisions).
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
The February 2017 decisions did not reflect an exercise (or even a purported exercise) of powers conferred by such an enactment. The power purportedly being exercised by those “decisions” was a power to refuse registration absent satisfaction as to the applicant’s good character under Victoria’s Building Act 1993. That Act is not an enactment which provides for Tribunal review of decisions.
The Tribunal is able to review the October 2016 decisions despite them not being expressly identified as the decisions the subject of the Tribunal’s review in Mr Strachan’s applications for review. The October 2016 decisions were encapsulated within his review applications. Mr Strachan was seeking review of the Authority’s decisions to refuse him registration. The decisions of the Authority that were operative to effect that refusal were (as previously outlined) the October 2016 decisions.
The incorrect identification of the decision under review in an application for review is not fatal where the intention of the applicant is (as here) clear.[41] In this regard, “[n]o narrow or pedantic approach is called for in determining whether a decision falls within the scope of review by the tribunal”.[42] This is especially so where (as here) the applicant was not legally represented at the time of lodgement of his review application and any mis-description as to the decision under review would not, given the nature of the Authority’s submissions, appear to have had any impact on the Authority’s approach in this proceeding. As Deputy President Jarvis stated in Kowalski[43] “…[i]nstruments should be construed in accordance with the maxim falsa demonstratio non nocet, that is, an imperfect or inaccurate description will not vitiate an instrument…”.
[41] Kowalski and Repatriation Commission [2008] AATA 903 at [135]
[42] Director-General of Social Services v Hales (1983) 5 ALN N162 at N164
[43] Kowalski at [133]-[134]
Having identified the decisions the subject of review it is important to bear in mind the nature of the role played by the Tribunal, and the constraints it is under, in conducting that review.
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 JJ
MR 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
There is a positive statement made in s20(3) that once substantively registered, the entitlement to registration continues despite a cessation of registration elsewhere. Arguably implicit from this positive statement is a negative proposition to the effect that, prior to substantive registration, the entitlement to registration that arises on lodgement of a s19 notification does not survive a cessation of registration elsewhere.[49]
[49] I note a possible alternative argument. The provision which has, on substantive registration, the entitlement to registration continuing whether or not registration interstate ceases might not have been intended implicitly to convey the converse as it was concerned with another matter, registration renewal after substantive registration. It was intended to ensure that the entitlement to registration continue despite cessation of registration interstate “…so as to enable renewal of registration in the second State”- See the commentary in the explanatory memorandum to the Mutual Recognition Bill 1992 (EM), cl21
That the MR Act conveys, implicitly, this negative proposition might be said to find support in the provisions of the Act dealing with the duration of deemed registration under the Act.
Put simply, under those provisions, Mr Strachan’s deemed registration could not have survived the cessation of his Tasmanian registration (which, as stated earlier, occurred in January 2017). This is because his deemed registration could not continue after the occurrence of any of a number of events, including Mr Strachan ceasing to be “substantively registered” in Tasmania.[50]
[50] MR Act, s26(4)
Hence, a construction of the MR Act which has the entitlement to registration which arose in Mr Strachan’s favour on lodgement of his s19 notification not continuing beyond the cessation of his Tasmanian registration in January 2017 is, arguably, consistent with the fact that his deemed registration under the MR Act could not have survived beyond that cessation.
This is a construction reflective of that adopted by Nettle and Gordon JJ in Andriotis. Their Honours stated (by way of obiter dicta) that revocation of an applicant’s registration in one State while registration was suspended under the MR Act in another State would operate to remove the relevant person’s entitlement to registration in the other State.[51]
[51] Andriotis at [126]
This statement of their Honours addresses a question not in issue in this proceeding, being whether the entitlement to registration arising on lodgement of a s19 notification survives cessation of interstate registration. The Tribunal is not here concerned with the duration of that entitlement. Instead, the concern being addressed relates to the duration (or consequences of acquisition) of a separate, additional, entitlement to registration conferred by the MR Act.
In particular, at the time of the decisions the subject of review (being the October 2016 decisions not to grant registration), Mr Strachan had an entitlement to immediate registration, an entitlement which had arisen in his favour on expiration of one month after lodgement of his s19 notification as a result of the Authority not having either granted registration or taken action to postpone or refuse the grant of registration in that one month period.[52]
[52] MR Act, s21(4)
This entitlement to registration is separate from and additional to that which had arisen in Mr Strachan’s favour on lodgement of his s19 notification. It was “more than that created at lodgement”.[53] More specifically, on acquisition of an immediate entitlement to registration “… no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved”.[54]
[53] Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255 at [45]
[54] MR Act s21(4)]
This prohibition on objection being taken to a s19 notification operated to foreclose refusal (or postponement) of the grant of registration to Mr Strachan for reasons that might have otherwise justified an exercise of the MR Act power to do so.[55] Indeed, the purpose of that prohibition may well have been to render an immediate entitlement to registration as something akin to automatic registration.[56]
[55] Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255 at [45]
[56] EM cl23 where it is said that if a registration authority neither refuses nor postpones registration with one month of lodgement of a s19 notification “registration is automatic at the end of that month”. While what is said in an explanatory memorandum may well not control the meaning of the language employed by the legislature, it may assist in the identification of the legislature’s purpose in employing that language- see Linfox Australia Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2019] FCAFC 131 at [95]
One result of Mr Strachan having acquired an immediate entitlement to registration is that registration giving effect to that entitlement could not have been refused because of a material change in circumstances since lodgement of his s19 notification[57] (a point to which I will return in considering the relevance of the cessation of Mr Strachan’s Tasmanian registration in January 2017).
[57] MR Act, s22(1)(c)
Hence, the Authority is deemed (by virtue of the October 2016 decisions) to have refused Mr Strachan’s registration at the very time of his acquisition of an immediate entitlement to registration. What, if anything, can the Tribunal now do about it?
WHAT, IF ANYTHING, TO BE DONE ABOUT DECISIONS UNDER REVIEW?
As to what the Tribunal may now do, the Authority puts alternative contentions. One is, in essence, that the Tribunal cannot now do anything about that registration refusal.
In considering this contention I note that the Authority failed to:
(a)accept Mr Strachan’s entitlement to be registered that arose on lodgement of his s19 notice;
(b)accept Mr Strachan’s entitlement to immediate registration that arose on expiry of one month after having lodged his s19 notice; and
(c)observe its obligation to grant registration within one month of Mr Strachan’s lodgement of his s19 notice.[58]
[58] I note that these failures occurred despite the Authority’s obligation under the MR Act to facilitate the operation of that Part of the MR Act as gave rise to the entitlements, obligations and powers which I outlined in discussing the consequences under the MR Act of Mr Strachan having lodged a notification under s19 of the MR Act-see MR Act s39
As a result of these failures, Mr Strachan did not acquire substantive registration in Victoria when he became entitled to it and when the Authority became obliged to grant it. In particular, he did not acquire substantive registration in Victoria before cessation of his “registration” in Tasmania.
Nevertheless, the Authority submits, in essence, that the Tribunal cannot now undo the consequences of these failures and give effect to the immediate entitlement to registration which Mr Strachan had acquired under the MR Act.
In particular, given cessation of Mr Strachan’s Tasmanian registration, the Authority submits that the Tribunal does not have the power now to give effect to the immediate entitlement to registration which Mr Strachan had acquired under the MR Act as:
(a)“The powers of the Tribunal on a review are set out in section 31 of the MR Act.”[59] (In this regard, s31 provides that “[o]n a review, the Tribunal may make an order that a person who is registered in a particular occupation in a particular State is or is not entitled to registration in another State in a particular occupation, and may specify or describe conditions that will achieve equivalence.”)
(b)Those powers of the Tribunal are only exercisable if Mr Strachan is registered interstate.
(c)In considering whether those powers are exercisable, the Tribunal is required to apply the facts as they now exist.
(d)Those facts reveal that Mr Strachan is not now registered interstate.
[59] RS 16
I do not accept this submission. Its validity is dependent on s31 of the MR Act being the sole repository of the Tribunal’s powers in this matter[60] and the section being inapplicable in the circumstances.[61]
[60] RS 16, 33
[61] RS 18
I accept the latter aspect of the Authority’s contention. For the Tribunal now to make an order under s31 that Mr Strachan is or is not entitled to registration in Victoria, he would need now to be registered in another Australian jurisdiction. He is not.
I reject, however, the former aspect of the Authority’s contention. Section 31 is not the sole repository of the Tribunal’s powers in this matter. That section simply serves to confer a certain, specific, power on the Tribunal in addition to its normal powers,[62] a power apt to be used in addressing an issue not in contention in this proceeding (the equivalence of occupations).[63]
[62] Yousefi and Victorian Building Authority [2018] AATA 3542 at [41]
[63] The section appears in Division 4 of Part 3 of the MR Act, a Division “…concerned only with determination of equivalence of occupations for the purposes of the Part”-Andriotis at [67] per Gageler J
The Tribunal’s other powers, such as those found in s43 of its constituent legislation, are not expressly excluded by the MR Act and no basis was identified for concluding that they had been excluded by implication.
Those other powers include a power to affirm a decision under review and a power to set aside such a decision and make a substitute decision.
Affirmation of the decisions made by the Authority would not be appropriate; it would not reflect a correct or preferable decision in the circumstances. Indeed, the Authority is not seeking affirmation. It does not contend that it was authorised to do what it did (or is deemed to have done) in response to Mr Strachan’s immediate entitlement to registration under the MR Act. It does not seek to defend the actions it took (or is deemed to have taken).
The Authority is right not to do so.
It is clear that the Authority could not do what it is deemed to have done in the October 2016 decisions. In those decisions, it refused registration to Mr Strachan despite his immediate entitlement to registration and despite the Authority then being obliged to grant registration.
It is also clear that the Authority could not do what it purported to do in the February 2017 decisions. As Andriotis makes clear, in refusing registration to Mr Strachan, the Authority impermissibly applied a precondition applicable to registration under Victoria’s internal registration pathway to the mutual recognition pathway.[64] The Authority refused Mr Strachan’s registration as it was not satisfied that he was of good character. The requirement to be so satisfied arose under Victoria’s internal pathway to registration found in the Building Act 1993 (Vic) and operated as a precondition to registration under that Act.[65] The inapplicability to registration under the mutual recognition pathway of preconditions applicable to registration under the Victorian pathway is a consequence of the mutual recognition principle found in s17 of the MR Act which preserves, by way of exception to the principle, only those Victorian laws that regulate “the manner of carrying on” of an occupation, not those laws that regulate the entitlement to carry on an occupation.[66]
[64] See SR [10] where the Authority identifies what it characterises as two pathways to registration-this reflects the proposition that “…there are two paths to registering for an occupation: either a person can apply under the prevailing State regulatory scheme (here, the Building Act), or, if they are registered for an equivalent occupation in another State, they can apply for recognition of that registration under the Mutual Recognition Act. These are therefore two parallel means of achieving the same end.” -see Andriotis at [106] per Nettle and Gordon JJ
[65] Depending on the timing of Mr Strachan’s application the Authority may, in any event, have applied the wrong test in refusing his application for registration. Before 1 September 2016 the test was of “good character” Building Act 1993, s170(1)(c). After 1 September 2016 (so as to apply if the registration application was made on 5 September 2016), however, the legislation had changed so that the Authority had to be satisfied, amongst other things, that an applicant was a fit and proper person
[66] Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123 at 144; see also Re Cleary and Nurses’ Board of the Northern Territory (1996) 41 ALD 395 at [23]
Further, as previously stated, the Authority’s power to refuse registration in response to an entitlement to registration arising under the MR Act is defined exhaustively in the MR Act. That power is only exercisable within a limited time frame (one month from lodgement of the relevant s19 notice, absent postponement of the decision within one month of lodgement). The 9 February 2017 “decisions” fell well outside that timeframe.
Even if the Authority had power on 9 February 2017 to refuse registration to Mr Strachan under the MR Act, the Authority did not purport to exercise that power. Instead, it purported to exercise a power under Victorian legislation on the basis of a consideration (the character of Mr Strachan) which was irrelevant to its proper exercise of the MR Act power.
Lastly, affirmation would simply serve to leave the so-called decisions intact,[67] an unlikely result in a context where the decisions (be it the February 2017 decisions or the October 2016 decisions) are ones which the Authority lacked capacity to make and the Tribunal is duty bound to come to the correct or preferable decision.[68]
[67] Shi v Migration Agents Registration Authority(2008) 235 CLR 286at [100]
[68] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 78
CAN A DECISION NOW BE MADE REFUSING REGISTRATION?
In a telephone directions hearing on 9 August 2019, the Authority was asked to identify the nature of the decision it was seeking from the Tribunal.
After being alerted to the potential range of decisions that could be made by the Tribunal under s43 of its constituent legislation, the Authority indicated that it is seeking a decision to set aside its original registration refusal decisions and for the Tribunal to make, in substitution, fresh registration refusal decisions.
In RS2 it repeats that request. In particular, in RS2 the Authority submitted that Mr Strachan’s registration could be refused by the Tribunal on the basis of a ground for registration refusal found in s23 of the MR Act. This ground for registration was enlivened (according to the Authority) by the cessation in January 2017 of Mr Strachan’s registration in Tasmania, causing information he provided in his s19 notification to have become materially false.
In RS3, the Authority also requests that the Tribunal make new registration refusal decisions in substitution for its original decisions, again on the basis of a ground for registration refusal found in s23 of the MR Act. However in this instance, a ground was said to be enlivened by Mr Strachan having incorrectly answered a question in his s19 notification, causing the information so provided in that notification to be false or misleading information.[69]
[69] RS3[27]
I reject the Authority’s submissions concerning the application of the registration refusal power found in s23 of the MR Act. As to:
(a)The submission it made in RS2: an event occurring roughly three or four months after lodgement of Mr Strachan’s s19 notification (ie, the cessation of Tasmanian registration in January 2017) does not render any statement or information in the notification materially false or misleading. In this context, the Authority is not contending that any such statement or information was false or misleading when it was made or provided.
(b)The submission it made in RS3: the Authority simply suggests that an incorrect answer to a question posed in the s19 notification form enlivens the power to refuse registration. It omits, and does not address, the requirements found in s23 for materiality and for the relevant statement or information to be in the s19 notification as a result of a requirement imposed by s19. Consequently, I have no basis on which to conclude that the alleged inaccuracy in Mr Strachan’s response to the relevant question was material. Moreover, and in any event, the allegedly inaccurate response is to a question which s19 does not require be posed.
In any event and quite apart from the Authority’s submissions, however, I have concluded that I cannot accede to its request and make a decision, in substitution for the decisions under review, refusing registration to Mr Strachan, for at least three reasons.
First, refusal of registration would be inconsistent with the attributes of Mr Strachan’s immediate entitlement to registration which he acquired under the MR Act. As outlined previously, having so acquired that immediate entitlement, his registration could not then be refused or postponed on any of the grounds provided for in the MR Act that might have otherwise justified refusal or postponement.
In particular, the MR Act provisions dealing with registration refusal exhaustively define the power of the Authority to refuse registration.[70] That power ceased to be exercisable once one month had expired after lodgement of Mr Strachan’s s19 notification. Hence, when Mr Strachan’s immediate entitlement to registration arose, the power to refuse his registration became incapable of exercise.
[70] Andriotis at [27] [39] [128] [135]
Put another way, Mr Strachan could only have been refused registration by the Authority in the circumstances and on the limited grounds specified in the Act.[71] As previously stated, one such circumstance is that the registration refusal power be exercised within one month of lodgement of the relevant s19 notification (assuming that registration was not postponed within that month, as it was not in the case of Mr Strachan). As that power was not so exercised, it became incapable of being exercised when that one month period expired.
[71] MR Act, s23
Second, registration of Mr Strachan cannot now be refused given the nature of the power exercised by the Tribunal when making a decision in substitution for a decision the subject of review.
In order to make a decision in substitution, the Tribunal needs to draw upon the powers of the primary decision-maker (in this case, the Authority),[72] being powers that would have been available for exercise by the primary decision-maker when making the decision the subject of review.[73]
[72] Ibid
[73] Lees v Comcare [1999] FCA 753 at [39]. See also Hutchinson v Comcare [2019] FCA 1440 at [4] and the earlier reference to the Frugtniet decision.
At the time of the October 2016 decisions, Mr Strachan had acquired an immediate entitlement to registration. As I just outlined, at that time, there would have been no registration refusal power available for exercise by the Authority. Hence, the Tribunal has no registration refusal power to draw upon. (The same applies even if the decisions the subject of review are the February 2017 decisions.)
Third, registration of Mr Strachan cannot now be refused given the nature of the role being performed by the Tribunal. In drawing upon the powers available to the Authority, the Tribunal’s task is to do over again that which was done by that decision-maker,[74] “…in accordance with the law as it applied to…” that decision-maker,[75] subject to the same constraints as applied to the decision-maker.[76]
[74] Shi v Migration Agents Registration Authority (2008) 235 CLR 286at [100], [134]
[75] Ibid at [134] per Kiefel J (as Her Honour then was)
[76] Re Western Australian International Education Marketing Group and Australian Trade Commission [2003] AATA 1267- see also the earlier reference to the Frugtniet decision.
At the time of the October 2016 decisions, the courses of action available to the Authority were constrained by the MR Act. At that time, it could (and was obliged to) do only one thing; register Mr Strachan.
In accordance with the law and subject to the same constraints as applied to the Authority at the time of the October 2016 decisions, there is no power upon which the Tribunal can draw enabling it to now decide to refuse Mr Strachan’s registration.
CAN A DECISION NOW BE MADE GRANTING REGISTRATION TO MR STRACHAN?
Like the Authority, Mr Strachan is also seeking to have the Authority’s decisions set aside. Unlike the Authority, however, he is asking for the Tribunal to make decisions granting him registration in substitution for the Authority’s previous decisions.
While a decision to refuse registration cannot now be made, decisions to grant Mr Strachan registration in substitution for the decisions the subject of review may now be made, drawing upon a power that would have been available for exercise by the Authority when making those decisions.
In particular, a power that would have been available for exercise by the Authority when making the October 2016 decisions is the power found in s20(2) of the MR Act to grant registration on the ground of Mr Strachan’s registration in Tasmania. Contrary to the Authority’s submissions and despite the fact that Mr Strachan ceased to be registered in Tasmania in January 2017, the Tribunal may now exercise that power and grant registration on that ground.
The Tribunal is obliged to make the correct or preferable decision on the material before it, not the material before the primary decision-maker.[77] This means that the Tribunal might, for instance, be bound to receive and consider evidentiary material right up to the time it becomes functus officio. However, this only applies in relation to material that is probative and relevant.[78]
[77] Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at [52]; Hutchinson v Comcare [2019] FCA 1440 at [4]
[78] Superannuation Warehouse Australia Pty Ltd and Australian Securities and Investments Commission [2019] AATA 88 at [78]; Hutchinson v Comcare [2019] FCA 1440 at [22]
Whether material is probative and relevant depends on the statute concerned. As Moore J stated in X v Minister for Immigration & Multicultural Affairs:[79]
…[t]he nature of any obligation on an administrative decision-maker to consider material provided by a person with an interest in the decision, is to be ascertained having regard to the statutory context in which the power to decide is conferred. The subject matter, scope and purpose of a statute may give rise to an implication that the decision be based on the most current material available to the decision maker.
[79] [2002] FCAFC 3 at [50]
It may be that it is “…normally the case that an administrative decision-maker is obliged to make the decision on the basis of material current at the date when the decision is made.”[80] But whether this is so in any particular case is (as Moore J made clear) a matter of construction of the statute concerned.[81] Hence, for example, in proceedings concerning cancellation of the entitlement to a disability support pension, regard is had only to the position subsisting on the date of cancellation.[82]
[80] X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3 at [15]; see also Victoria Legal Aid v Kuek and Another (2010) 26 VR 700 at [32]
[81] See also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44, per Mason J
[82] Morgan and Secretary, Dept of Social Services (Social Services Second Review) [2019] AATA 17 at [20]
There are two particular aspects of the MR Act that are relevant in determining whether the cessation of Mr Strachan’s registration in Tasmania in January 2017 is probative and relevant to an exercise by the Tribunal (standing in the shoes of the Authority) of the power under s20(2) of the MR Act to grant Mr Strachan registration in Victoria.
The first becomes apparent when regard is had to the Tribunal’s role when making a decision in substitution for a decision the subject of review. As I previously stated, in making such a decision, the Tribunal draws upon the powers of the primary decision-maker (in our case the Authority), doing over again that which was done by the decision-maker (or, at least, that which was deemed to have been done, given the nature of the October 2016 decisions). This is done in accordance with the law and subject to the same constraints as applied to the decision-maker.
Hence, the first aspect of the MR Act to be considered is whether it imposes some constraint which operates to confine the material to be considered when exercising the s20(2) power to grant registration in a way which precludes consideration of an event such as Mr Strachan’s cessation of his Tasmanian registration in January 2017. Put simply, is there a statutory basis for so confining the material to be considered?[83] There is.
[83] Shi at [99]
The law that applied to the Authority at the time of the October 2016 decisions (and which applies to the Tribunal in doing over again that which was then deemed to have been done by the Authority) not only precluded a consideration of any material change in circumstances as a ground for refusing registration but constrained the scope to take, or not take, various steps in response to Mr Strachan’s immediate entitlement to registration. Under the MR Act, having then lost any power to refuse registration, only one course of action was available to be taken. Mr Strachan had to be registered.
The second aspect of the MR Act to be considered relates to the first. It is derived from the proposition that the considerations of relevance to a decision-maker are determined by the “question raised by the statute for consideration”[84] or the “question raised by statute for decision”.[85]
[84] Frugtniet at [15]
[85] Frugtniet at [51]
In order to ascertain the question or questions raised by the MR Act in the context of a proposed exercise of the s20(2) power to grant registration regard needs to be had to the nature of that power.
In summary and as previously outlined, s20(2) is an empowering provision, possibly coupled with a limited discretion to refuse registration in the circumstances provided for in the MR Act. The power is exercisable in relation to a person who has become entitled to registration after lodgement of a s19 notification. The power does not confer a broad discretion to refuse registration. In particular, where registration is not postponed or refused within one month of lodgement of a s19 notification, the power to refuse or postpone registration becomes no longer exercisable. Instead, the power to grant registration under s20(2) becomes one which must be exercised.
Given the nature of the s20(2) power, the questions raised for consideration by its proposed exercise in the context of this proceeding are whether Mr Strachan acquired an entitlement to registration under the MR Act and, if so, whether, under that Act, the Authority had a discretion to refuse registration or to do anything other than grant registration in response to that entitlement.
The considerations of relevance to these questions comprise facts or circumstances occurring or subsisting on or before expiry of the one month period after lodgement of his s19 notification. This is because the answer to:
(a)The question of whether Mr Strachan acquired an entitlement to registration depends on the factual issue of whether or not he lodged a notification under s19 of the MR Act.
(b)The question of whether the Authority had a discretion (despite that entitlement) to refuse registration depends on the factual issue of whether the Authority exercised its power under the MR Act to refuse registration within one month of lodgement of Mr Strachan’s s19 notification.
(c)The question of whether the Authority had a discretion to not act on Mr Strachan’s entitlement depends on the factual issue of whether the Authority exercised its power under the MR Act to refuse or postpone registration within one month of lodgement of Mr Strachan’s s19 notification entitlement.
Accordingly, the cessation of Mr Strachan’s registration in Tasmania in January 2017 is not a consideration of relevance to the statutory questions to be decided in this matter. As such, it is not something to be taken into account now by the Tribunal in doing over again that which was done by the Authority (or, at least, deemed to have been done) in making the October 2016 decisions.
IS A DECISION TO GRANT REGISTRATION THE CORRECT OR PREFERABLE DECISION?
Not only may a decision to grant Mr Strachan registration now be made, such a decision must be made if I am to draw upon the Authority’s powers and make a decision in substitution for the decisions the subject of review. Moreover, the making of such a decision would be consistent with the legislature’s apparent intent, as reflected in the MR Act.
As I have previously stated, in making a decision in substitution for the decisions the subject of review, the Tribunal draws upon powers of the Authority, and does over again that which was done by the Authority (or, in our case, that which was deemed to have been done by the Authority) in making those decisions, applying the law that bound the Authority at the time those decisions were made. Under that law (and as previously outlined), the Authority was bound to grant registration to Mr Strachan. “Under s 21 of the Mutual Recognition Act, a local registration authority has only three options: to grant, postpone or refuse the registration. If it does not postpone or refuse, it "must" grant the registration within one month.”[86] Hence, application of the law binding the Authority leaves the Tribunal, standing in the shoes of the Authority, with only one option; the grant of registration.
[86] Andriotis at [109]
The legislature’s intent that registration be granted in circumstances such as those under consideration in this proceeding is made apparent not only by the MR Act’s express imposition of an obligation to do so.
The MR Act has been structured by the legislature to give a local registration authority only the three options I just mentioned when a person such as Mr Strachan lodges a s19 notification. Granting registration to Mr Strachan reflects one of those options. A failure to grant him registration, however, would not reflect any of those options. Instead, it would be suggestive of a fourth option unintended by the legislature, one enabling the deferral of decision-making pending a change in circumstances. Such a fourth option would be directly inconsistent with both the apparently unqualified duty which the legislature thought fit to impose on local registration authorities to grant registration once one month had expired after lodgement of a s19 notification and the broader duty of local registration authorities to facilitate the operation of that Part of the MR Act of particular relevance in these proceedings.[87]
[87] MR Act, s39
Not only would a failure to register Mr Strachan now reward deferral of decision-making in the face of those duties, more broadly it would:
(a)Reflect a failure to give effect to the legislature’s apparent intent that the authority in an Australian jurisdiction charged with the responsibility for registering those who wished to a carry on a particular occupation in the jurisdiction “…be required to accept the judgment of their interstate counterparts of a person's educational qualifications, experience, character or fitness to practise.”[88]
(b)Give effect to conduct that, in Mr Strachan’s case, operated to frustrate the objective of mutual recognition underlying the mutual recognition principle expressed in the MR Act,[89] being “…to “allow the legal entitlement to carry on an occupation in one state to be recognised and the like legal entitlement for an equivalent occupation conferred in the second state”.[90]
(c)Serve to impede exercise of an ability which the legislature intended be conferred by the MR Act, the ability of a person registered to carry out an occupation in one State “…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.”[91]
[88] House Hansard, 3 November 1992, p2432, second reading speech with respect to the Mutual Recognition Bill 1992
[89] MR Act, s17
[90] Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence (2000) 200 FCR 255 at [65]
[91] Sande v Registrar, Supreme Court of Queensland 64 FCR 123 at 580
On the other hand, the grant of registration to Mr Strachan in response to his immediate entitlement to registration would be consistent with:
(a)Characterisation of the entitlement as something akin to automatic registration, a characterisation which (as I previously noted) was adopted in the explanatory memorandum and one which may be taken into account in seeking to ascertain the legislature’s intent as expressed in the MR Act, in particular, in those provisions of the MR Act as deal with the creation and attributes of immediate entitlements to registration.
(b)The previously identified objective of mutual recognition. At the time of the decisions the subject of review and consistently with that objective, Mr Strachan was entitled to conferral of a legal right to carry on in Victoria the occupation which he was then legally entitled to carry on in Tasmania.
CONCLUSION
For the foregoing reasons I have decided to set the Authority’s decisions aside and make, in substitution for those decisions, decisions to grant Mr Strachan registration under s20(2) of the MR Act with respect to the occupations in relation to which he sought registration.
COSTS
The MR Act empowers the Tribunal to order a party in proceedings to pay costs if the party has acted unreasonably.[92]
[92] MR Act s35
While I have concluded that the Authority was wrong to do so, I do not believe it was unreasonable for it to have refused to grant registration under the MR Act to Mr Strachan given that he now does not have registration in any other Australian jurisdiction.
What I do think was unreasonable, however, was:
(a)The Authority’s pursuit of an application to dismiss Mr Strachan’s application for review on the basis that it had no reasonable prospect of success.[93]
(b)The introduction through RS3 of material that should have been with the T documents.
(c)An apparent failure by the Authority to consider prior to RS2 the potential application by the Tribunal of its powers under s43 of its constituent legislation.
(d)In purporting to respond to propositions put by the Tribunal, the Authority raising in RS3 the issue of fraud without identifying any basis for application of the issue in the circumstances.
(e)In purporting to respond to propositions put by the Tribunal, the Authority altering in RS3 the basis on which it contended that Mr Strachan’s registration ought be refused.
[93] See Re Filsell and Comcare (2009) 109 ALD 198 at [33] where it was stated that “…applications to dismiss under s 42B should not be made except in appropriate cases”.
Given the foregoing I believe that the Authority ought pay a proportion of Mr Strachan’s reasonable costs in relation to these proceedings. An appropriate proportion seems to me to be in the order of 20%. The parties will, however, be given an opportunity to be heard in relation to this.
DECISIONS
The Tribunal sets aside each decision under review and, in substitution for the decisions so set aside, decides to grant Mr Strachan registration under s20(2) of the MR Act with respect to the occupations in relation to which he sought registration.
Either party may make an application in relation to the costs of the proceedings within 14 days of the date of this decision. If no such application is made, the Tribunal orders that the Authority pay 20% of Mr Strachan’s reasonable costs in relation to the proceedings.
127. I certify that the preceding 126 (one hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Chris Furnell
...[sgd].............................................
Associate
Dated: 18 November 2019
Date of hearing on the papers:
1 October 2019
Advocate for the Applicant:
Solicitors for the Applicant:
Paul Graham
HWL EBSWORTH
Advocate for the Respondent:
Miriam Fletcher
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