Strik and Director-General, Department of Services, Technology and Administration
[2011] AATA 177
•21 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 177
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/4894
GENERAL ADMINISTRATIVE DIVISION )
ReTimothy STRIK
Applicant
AndDirector-General, Department of Services, Technology and Administration
Respondent
DECISION
TribunalMr RP Handley, Deputy President
Date21 March 2011
PlaceSydney
DecisionThe decision under review is affirmed.
.....................[sgd].....................
Mr RP Handley
Deputy President
CATCHWORDS
PROFESSIONS AND TRADES – registration - mutual recognition – refusal of registration in second State – whether personally prohibited from carrying on occupation – whether statements or information false or misleading – notice required under s 19 not made – entitlement to registration not enlivened - decision under review affirmed
WORDS AND PHRASES – ‘prohibit’
RELEVANT ACT
Mutual Recognition Act 1992 (Cth): ss 3, 6, 17, 19, 20, 23, 34
Home Building Act 1989 (NSW)
Mutual Recognition (New South Wales) Act 1992 (NSW)
CITATIONS
Strik and Commissioner for Fair Trading [2009] NSWADT 306
Re Petroulias [2005] 1 Qd R 643; (2004) 208 ALR 552; [2004] QCA 261
OTHER AUTHORITIES
Macquarie Concise Dictionary (5th ed, 2009)
Oxford English Dictionary Online (2nd ed, November 2010, Oxford University Press) (accessed 17 March 2011)
REASONS FOR DECISION
| 21 March 2011 | Mr RP Handley, Deputy President |
Tim Strik has applied for a review of a decision of the Director-General of the NSW Department of Services, Technology and Administration to refuse his application under the Mutual Recognition Act 1992 (Cth) (the MR Act) for a contractor’s licence permitting him to do electrical work on the ground that he had previously been refused such a licence in NSW.
Background
On 7 September 2010, Mr Strik applied to the Department of Fair Trading (now the Department of Services, Technology and Administration) (referred to hereafter as ‘the Department’) under the MR Act for a qualified supervisor’s certificate for the occupation of electrician on the basis of his ACT registration as an “unrestricted electrician”. In the application form, Mr Strik answered ‘No’ to question 7(ii) “Have you … ever been refused or disqualified from holding a licence, authority, certificate or registration or had any such instrument cancelled or suspended?”
By letter dated 23 September 2010, the Department responded noting that on 2 December 2008 and 17 February 2009 Mr Strik had applied for a qualified supervisor certificate for electrical wiring work under the Home Building Act 1989 (NSW), both of which applications had been refused on the ground that Mr Strik had provided false and misleading information. Mr Strik applied to the Administrative Decisions Tribunal (ADT) for a review of the decision of the Commissioner for Fair Trading dated 18 February 2009 on the latter application.
On 10 December 2009, the ADT affirmed the Commissioner’s decision finding that Mr Strik was not a fit and proper person to hold a qualified supervisor’s certificate as a result of his using a licence card that was a “fake”: Strik and Commissioner for Fair Trading [2009] NSWADT 306. The ADT found, at [31], that “it is implausible that Mr Strik did not know that his licence was not genuine” and was, therefore, not satisfied that Mr Strik has “sufficient moral integrity and rectitude of character” to be a fit and proper person to hold such a licence. Mr Strik appealed against this decision to the ADT Appeal Panel which, on 6 May 2010, affirmed the decision: Strik and Director-General, Department of Services, Technology and Administration [2010] NSWADTAP 33.
In its letter dated 23 September 2010, the Department asked for Mr Strik’s reasons for not disclosing his two previous applications that had been refused and also asked for verification of his name. Mr Strik responded on 27 September 2010 providing a copy of his driver’s licence and stating that he had misinterpreted question 7(ii) and should have ticked ‘Yes’ in answer to that question. He explained that when he went through the form with the Department’s counter staff and raised his previous applications, he had been advised “don’t worry about that as they will check your previous file anyway”.
On 9 November 2010, the Department wrote to Mr Strik informing him that his application had been refused. The basis of the decision appears to be that he had previously been refused such a licence in NSW on the ground that he was not a fit and proper person to be the holder of a qualified supervisor certificate. On 10 November 2010, Mr Strik applied to the Tribunal for a review of this decision.
By letter dated 3 November 2010, Mr Strik had also sought an internal review from the Department, having not had a reply to his response dated 27 September 2010. On 15 November 2010, having conducted an internal review, a delegate affirmed the decision to refuse Mr Strik’s application.
Relevant Legislation and Issues
Section 19(1) of the MR Act provides that a person who is registered for an occupation in one State (the first State) may lodge a written notice with the local registration authority for that occupation in another State (the second State) “seeking registration for the equivalent occupation in accordance with the mutual recognition principle”. Section 19(2) sets out the statements/information that “must” be contained in that notice. Relevantly, the notice must:
(e) state that the person’s registration in any State is not cancelled or currently suspended as a result of any disciplinary action; and
(f) state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any special conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any State; and
…
Section 19(5) requires that s 19(2) statements and other information “must be verified by statutory declaration”.
Section 20(1) provides for mutual recognition for a person who lodges an application under s 19:
20(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.
Section 23(1) states that a local registration authority may refuse a grant of registration if, amongst other grounds:
(a) any of the statements or information in the notice as required by section 19 are false or misleading; or
…
The Tribunal has a limited jurisdiction pursuant to s 34(1) of the MR Act to review “a decision of a local registration authority in relation to its functions under this Act.”
At the hearing, Mr Coss, for the Director-General, sought to rely principally on s 19(2)(f). Thus, the issue for the Tribunal is whether the prior refusal of Mr Strik’s applications for a NSW licence constitutes his being ‘personally prohibited’ from carrying on the occupation of an electrician in NSW. If the refusals constitute such a prohibition, the consequence of this is that Mr Strik’s notice, lodged on 7 September 2010, seeking NSW registration cannot satisfy the requirements of s 19(2) of the MR Act.
Submissions and Evidence
Mr Strik told me that when he completed his application for registration in NSW under the terms of the MR Act, he went through the form with the counter staff at the Department and asked whether he should include something on the form about his previous applications for registration, referring to question 7(ii) on the form. The counter staff said his completion of the form looked “OK” and that he should not worry about his previous applications because a check would be made on his file anyway. Then when he received the Department’s letter dated 23 September 2010 seeking further information, he responded by letter dated 27 September 2010 stating that it looked like he had misinterpreted question (question 7(ii)) and should probably have ticked ‘Yes’ in answer to the question. Mr Strik said his intention was not to mislead the Department in any way. Rather he was acting on the advice of counter staff.
Mr Strik submitted that s 19(2)(e) and (f) do not apply in his case: in particular, he contended that he has not been prohibited from carrying on the occupation of electrician in any State. In any event, the Department does not have the power to refuse his application for registration under s 23(1) because he did not make a false or misleading statement. Essentially, he corrected the information he had provided on the application form when this was questioned by the Department.
Mr Coss, for the Director-General, referred the Tribunal to the decision of the Queensland Court of Appeal in Re Petroulias [2005] 1 Qd R 643 where, in a matter involving an application for the registration of a solicitor in Queensland pursuant to the provisions of the MR Act, the applicant was unable to make the statement required by s 19(2)(d) and therefore the statutory declaration verifying the statement required by s 19(5). The Court found that “the notice did not accord with s 19, and the notice was consequently not apt to crystallize the entitlement to registration in Queensland provided for by s 20”: per de Jersey CJ at [19]; see also McMurdo P at [48].
Mr Coss said in Mr Strik’s case, he is unable to make the statement required by s19(2)(f) and so s 20(1) is therefore not enlivened. He is unable to make the s 19(2)(f) statement because he has had two applications for registration in NSW refused. Mr Coss said he had been unable to find any relevant authority to assist in interpreting the words ‘personally prohibited’ in paragraph (f). He submitted that these words should be given a broad interpretation in accordance with the context of the MR Act, including by reference to s 6(2) (“This Act does not limit the operation of a law of a State so far as it can operate concurrently with this Act.”) and s 17(2) (“the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State”).
Mr Coss contended that because Mr Strik provided the Department with false or misleading information by answering question 7(ii) in the negative, this enlivens the power of the Department to refuse the grant of registration under s 23(1)(a). (He questioned the credibility of Mr Strik’s evidence about what he had been told by the Department’s counter staff because of the instruction given to staff that they must not provide advice to customers.)
Consideration
As stated above, the issue for the Tribunal is whether the prior refusal of Mr Strik’s applications for a NSW licence under the Home Building Act 1989 (NSW) constitutes his being personally prohibited from carrying on the occupation of an electrician in NSW.
The word ‘prohibit’ is not defined in the MR Act. According to the principles of statutory interpretation, it should, therefore, be interpreted according to its ordinary meaning when considered in the context of the Act. The verb ‘prohibit’ is defined in the Macquarie Concise Dictionary (5th edition) as meaning “1. to forbid (an action, a thing) by authority … 3. to prevent; to hinder”. The Oxford English Dictionary (2nd ed) defines ‘prohibit’, relevantly, as “To ban or exclude (a person or thing) from an action or place; to prevent, hinder”.
In terms of the context of the MR Act, I note that the principal purpose of the MR Act, stated in s 3, is that of “promoting the goal of freedom of movement of goods and service providers in a national market in Australia”. However, s 6(2) states that the Act “does not limit the operation of a law of a State so far as it can operate concurrently with this Act”. The mutual recognition principle as it applies to occupations is set out in s 17(1) and states that
… 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) …
However, s 17(2) states “the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State … ”.
In my view, the ordinary meaning of the word ‘prohibit’ when interpreted in the context of the MR Act is broad enough to encompass a situation where a local registration authority has previously refused an application for registration by the person in the particular occupation, thereby ‘forbidding’ the person from undertaking that occupation. If the word ‘prohibit’ were to be construed as excluding a refusal of registration under the State legislation this would undermine the manner in which the local registration authority in a State or Territory regulates the occupation which would be contrary to the intention of the MR Act.
Thus, in Mr Strik’s case, because his applications for a qualified supervisor certificate for electrical wiring work under the Home Building Act 1989 (NSW) have been refused, I am satisfied that he has been “personally prohibited” from carrying on that occupation in NSW within the meaning of s 19(2)(f) of the MR Act. What then, is the consequence of this in terms of the entitlement to registration in s 20?
The Queensland Court of Appeal decision in Re Petroulias, referred to above, while not binding on the Tribunal, in my view correctly sets out the way in which ss 19 and 20 operate. The written notice that an applicant for registration in the second State is required to lodge under s 19 “must” satisfy the requirements of s 19(2). The requirement for the notice to include the specified statements and information is mandatory. That this is so is reinforced by the requirement in s 19(5) for the applicant to verify the statements and other information by statutory declaration. Where in Re Petroulias a similar situation arose and a notice did not comply with the requirements of s 19(2), De Jersey CJ said, at [19], that “the notice was not apt to crystallize the entitlement to registration” in the second State, which in that case was Queensland. In other words, if a notice does not contain the requisite statements or information, the entitlement to registration under s 20 is not enlivened.
Thus, because the notice lodged by Mr Strik failed to satisfy the requirements of s 19(2)(f) as a result of his being personally prohibited from carrying on the occupation of electrician in NSW, s 20(1) of the MR Act was not enlivened and consequently Mr Strik had no entitlement to registration as an electrician in NSW under the mutual recognition principle set out in the MR Act. However, I assume that it is always open to Mr Strik to apply for registration as an electrician in NSW under the provisions of the Home Building Act 1989.
Mr Coss also sought to rely on s 23(1) of the MR Act which enables a local registration authority to refuse the grant of registration if “(a) any of the statements or information in the notice as required by s 19 are materially false or misleading”. Mr Coss contended that by not revealing in the application form that he had previously been refused registration in NSW, Mr Strik had provided false or misleading information. Mr Strik’s response to this is that when he completed the form, he went through the form with the Department’s counter staff who said his completion of the form looked “OK” and that he should not worry about his previous applications because a check would be made on his file anyway. Then when he received the Department’s letter dated 23 September 2010 referring to his two previous applications for registration and seeking further information, he responded by letter dated 27 September 2010 stating that it looked like he had misinterpreted question 7 and should probably have ticked ‘Yes’ in answer to the question (question 7ii).
In my view, there is insufficient evidence to enable me to make a finding as to what information may or may not have been provided to Mr Strik by the counter staff. The Department’s letter of 23 September 2010 required Mr Strik to give reasons for not disclosing that two previous applications had been refused and stated that it had “postponed” Mr Strik’s application until the information was received. In my view, Mr Strik did give reasons in his response dated 27 September 2010 and it was then a matter for the Department to determine his application.
The Department’s decision is set out in a letter to Mr Strik dated 9 November 2010. In refusing his application, the delegate of the Director-General appears to be relying principally on a finding that Mr Strik had applied unsuccessfully for registration as an electrician in Queensland and then successfully for registration in the ACT as a means of “trying to circumvent the licensing requirements of NSW” where it had already been determined that he was “not a fit and proper person to be the holder of a qualified supervisor certificate”. The delegate fails to make any reference to the MR Act, referring instead to the Mutual Recognition (New South Wales) Act 1992 (NSW) as the basis of his decision. In my view, the delegate was clearly confused. Mr Strik’s application for review is one brought under the MR Act and not its NSW counterpart.
In view of my finding that s 20 of the MR Act is not enlivened in Mr Strik’s case and the lack of clarity in the Department’s handling of the s 23(1) issue, I have decided not to make any finding about whether Mr Strik made a false or misleading statement in the statement he made in relation to question 7(ii) of the application form. My finding that s 20 of the MR Act is not enlivened requires that, in any event, the decision to refuse Mr Strik’s application for registration under the MR Act must be affirmed.
Decision
The decision under review is affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: ..............[sgd]............................................................
A Veness, Associate
Date of Hearing: 14 March 2011
Date of Decision: 21 March 2011
Applicant representative: Self-representedRespondent representative: Jamie Coss, Legal Officer for Director-General, NSW Department of Services, Technology and Administration
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