HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJVICTORIAN BUILDING AUTHORITY APPELLANT
AND
NICKOLAOS ANDRIOTIS RESPONDENT
Victorian Building Authority v Andriotis
[2019] HCA 22
7 August 2019
M134/2018
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
Representation
K L Walker QC, Solicitor-General for the State of Victoria, and C M Harris QC with S Gory for the appellant (instructed by Victorian Government Solicitor)
K P Hanscombe QC with T J D Chalke for the respondent (instructed by Boris Pogoriller)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Statutes – Construction – Statutory powers – Mutual recognition – Where s 17(1) of Mutual Recognition Act 1992 (Cth) provides that person registered in one State for occupation entitled to be registered in equivalent occupation in second State where person lodges written notice with local registration authority of second State – Where s 20(1) of Mutual Recognition Act provides that registration in first State sufficient ground of entitlement to registration in second State – Where s 20(2) of Mutual Recognition Act provides that local registration authority of second State "may" grant registration on that ground – Where s 17(2) of Mutual Recognition Act provides that mutual recognition principle subject to exception that it does not affect operation of laws that regulate manner of carrying on occupation in second State, provided laws not based on attainment or possession of some qualification or experience relating to fitness to carry on occupation – Where respondent registered as waterproofer in first State – Where respondent refused registration in second State for non-compliance with "good character" requirement in local Act – Whether local registration authority has discretion to refuse registration – Whether "good character" requirement is law based on "qualification" relating to fitness to carry on occupation.
Words and phrases – "character requirement", "disciplinary action", "discretionary power", "entitlement to registration", "fitness to carry on an occupation", "good character", "local registration authority", "may", "mutual recognition principle", "mutual recognition scheme", "qualification or experience", "registration for an occupation", "residual discretion", "sufficient ground of entitlement to registration".
Acts Interpretation Act 1901 (Cth), ss 2, 13, 15AA, 33.
Building Act 1993 (Vic), ss 170, 179, 180.
Mutual Recognition Act 1992 (Cth), ss 3, 6, 16, 17, 19, 20, 21, 22, 23, 33, 36, 37.
KIEFEL CJ, BELL AND KEANE JJ. The factual background and statutory provisions relevant to this appeal are set out in the reasons of Nettle and Gordon JJ. It is not necessary to repeat them in full.
This appeal concerns the operation of the Mutual Recognition Act 1992 (Cth) ("the MRA"). The MRA was enacted pursuant to s 51(xxxvii) of the Commonwealth Constitution, which provides for the power of the Commonwealth legislature "to make laws for the peace, order, and good government of the Commonwealth with respect to … matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of…
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- Case
- [2019] HCA 22
- Decision Date
CaseChat Overview and Summary
The central legal issues before the High Court were whether the MRA, specifically section 20(1) which establishes an entitlement to registration in a second State based on registration in a first State, allowed for a discretion to refuse registration on character grounds. Furthermore, the Court had to consider whether the "good character" requirement under the Victorian Act constituted a law regulating the manner of carrying on an occupation that was not based on a "qualification" or "experience" relating to fitness to carry on that occupation, as contemplated by section 17(2) of the MRA.
The High Court reasoned that section 20(1) of the MRA establishes a clear entitlement to registration in the second State, provided the applicant has lodged the required notice. The Court found that this provision leaves little room for discretion based on an applicant's character or prior conduct. It held that the "good character" requirement in the Victorian Act was a law based on a qualification relating to fitness to carry on the occupation, and therefore fell within the exception provided by section 17(2) of the MRA. Consequently, the MRA did not permit the Board to consider Mr. Andriotis' character when assessing his application for registration.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, BELL AND KEANE JJ, GAGELER J, NETTLE AND GORDON JJ, EDELMAN J
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