Strachan and Victorian Building Authority

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.