Vuong and Building Services Board (WA)
[2020] AATA 2663
•6 August 2020
Vuong and Building Services Board (WA) [2020] AATA 2663 (6 August 2020)
Division:GENERAL DIVISION
File Number(s): 2018/4475
Re:Terence Vuong
APPLICANT
AndBuilding Services Board (WA)
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:6 August 2020
Place:Sydney
The decision under review is affirmed.
.............................[SGD]...........................................
Senior Member A Poljak
CATCHWORDS
MUTUAL RECOGNITION – equivalence of occupation – building surveying practitioner level 2 – building surveying work – imposition of conditions – application of Mutual Recognition Act 1992 – WA registration – NSW registration – decision under review affirmed
LEGISLATION
Building Professionals Act 2005 (NSW) ss 3, 5, 5A
Building Professionals Regulation 2007 (NSW) sch 1, regs 4, 7
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) reg 4A
Building Services (Registration) Act 2011 (WA) s 9
Building Services (Registration) Regulations 2011 (WA) regs 6, 28AMutual Recognition Act 1992 (Cth) ss 17, 20, 29
CASES
Board of Examiners Under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255
REASONS FOR DECISION
Senior Member A Poljak
6 August 2020
Mr Terence Vuong, the applicant, held a Certificate of Individual Accreditation (Council) as an accredited certifier under the Building Professionals Act 2005 (NSW) (“NSW Act”) in the category of “A2 - Accredited Certifier- Building Surveying Grade 2” a set out in Schedule 1 of the Building Professionals Regulation 2007 (NSW) (“NSW Regulations”) for the period 15 March 2017 to 14 March 2018 (“NSW Registration”). The NSW Registration was subject to, inter alia, the following condition:
The holder of the certificate may carry out the certification work authorised by the certificate only on behalf of the council (“NSW Condition”)
On 14 December 2017, the applicant applied to the respondent for registration as a Building Surveying Practitioner under the Building Services (Registration) Act 2011 (WA) (“WA Act”) pursuant to the Mutual Recognition Act 1992 (Cth) (“MR Act”).
On 4 January 2018, the respondent decided to grant the applicant’s application for registration for the period 4 January 2018 to 4 January 2021 as a “Building Surveying Practitioner Level 2” subject to the imposition of a condition on his registration “Restricted To: Carrying out certification work for and on behalf of a local government authority only” (“the condition”). This is the decision under review in these proceedings.
On 2 August 2018, the applicant applied for review of the decision. On 28 August 2018, the applicant also sought an extension of time for making the application. The respondent did not oppose the application for an extension of time.
RELEVANT LEGISLATIVE PROVISIONS
MR Act
Section 17 of the MR Act provides:
(1) The mutual recognition principle is that, subject to this Part, 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) pending such registration, to carry on the equivalent occupation in the second State.
(2) However, 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, so long as those laws:
(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
Subsection 20(5) the MR Act provides:
(5) The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person’s registration in the first State or that are necessary to achieve equivalence of occupations.
Section 29 of the MR Act relevantly provides:
(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
(2) Conditions may be imposed on registration under this Part so as to achieve
equivalence between occupations in different States.
…
NSW Act and Regulations
The NSW Act and NSW Regulations have since been repealed but remain relevant to these proceedings as they were in force at the time the applicant applied for and received his NSW registration and at the date of the decision under review.
Section 3 of the NSW Act defines an “accredited certifier” as “the holder of a certificate of accreditation as an accredited certifier”.
Subsections 5(1) and (1A) of the NSW Act relevantly provides:
(1) A person may apply to the Board for a certificate of accreditation or the renewal of a certificate of accreditation.
(1A) An application for accreditation to carry out certification work only on behalf of councils may not be made except on the recommendation of a council.
The NSW Regulations may provide for different categories of certificate of individual accreditation. Section 5A of the NSW Act provides:
(1) The Board may issue the following classes of certificate of accreditation:
(a) a certificate of corporate accreditation as an accredited certifier which may only be issued to a body corporate that has at least one director who is an accredited certifier and has as directors or employs at least 2 other persons who are accredited certifiers,
(b) a certificate of individual accreditation as an accredited certifier which may only be issued to an individual.
(2) The regulations may provide that different categories of certificate of individual accreditation may be issued by the Board.
(3) Without limiting subsection (2), the regulations may prescribe one or more categories of individual accreditation in relation to persons who carry out certification work only on behalf of councils.
Regulation 4 of the NSW Regulations provides that:
(1)The categories of certificates of accreditation that may be issued by the Board are set out in Column 1 of the Table in Part 1 of Schedule 1.
(2)A certificate of accreditation of a category set out in Column 1 of the Table in Part 1 of Schedule 1 authorises the holder to do anything set out in Column 2 of that Table opposite the category of certificate of accreditation.
Regulation 7 of the NSW Regulations sets out prescribed conditions of certificates of accreditation. Regulation 7(3) provides that “it is a condition of every certificate of accreditation that is issued on an application referred to in section 5(1A) of the Act that the holder of the certificate may carry out the certification work authorised by the certificate only on behalf of a council.”
WA Act and Regulations
Under the WA Act, a person may apply to the Respondent for registration as a building service practitioner in a class of building service practitioner prescribed by the Building Services (Registration) Regulations 2011 (WA) (“WA Regulations”). For the purposes of subsection 9(1) of the WA Act, “building surveying practitioner level 2” is prescribed by regulation 6(1)(bb).
Building surveying work has the meaning given in regulation 4A of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (WA CRA Regulations); regulation 28A of the WA Regulations.
APPLICANT’S SUBMISSIONS
The applicant claims that the condition added to his WA accreditation is unfair and very onerous. He claims it causes a significant imbalance and places him at a disadvantage compared to other equivalent building surveyors in WA. The applicant claims that it is much easier to obtain accreditation in WA compared with NSW and he should not have the condition attached to his WA accreditation.
The applicant identified four building surveyors in the Government of Western Australia’s Register of Building Surveying Contractors and Practitioners (“WA Register”) which he said had similar accreditation and/or experience as himself and provided screenshots of their accreditation in the NSW Building Professionals Board Register (“NSW Register”) for comparison. In particular, he identified the following (pseudonyms used to protect the identity of persons not parties to these proceedings):
§Mr XY
NSW A3 accreditation + 4 years’ experience + qualification = WA Level 1 unrestricted
§Mr XZ
NSW A4 accreditation + 3 years’ experience + qualification = WA Level 1 unrestricted
§The applicant
NSW A2 accreditation + 20 years’ experience + qualification + WA Level 2 with condition
Most relevantly, the applicant identified Mr XR, who held a Certificate of Individual Accreditation (Council) as an A1 - Accredited Certifier - Building Surveying Grade 1. The accreditation was subject to the same condition as applied to the applicant’s NSW registration. Mr XR applied under the MR Act to obtain accreditation in WA and was granted the equivalent license in WA; Building Surveying Practitioner Level 1 (Individual) - without conditions. The applicant claims that it would be consistent for him to therefore be granted a license in WA for Building Practitioner Level 2 (Individual) - without conditions.
The applicant also claims that the respondent has set a precedent in accepting that the roles and responsibilities carried out by a building surveyor employed by local government in NSW is equivalent to that of a level of accreditation as prescribed by the WA Regulations. The applicant further contends that the respondent has deemed the experience gained in NSW local government as meeting the experience criteria required by a Building Surveying Practitioner – Level 1.
Finally, the applicant identified Mr XG for comparison. The applicant claimed that the respondent granted him accreditation in WA with greater scope. He states that Mr XG was an A1 Conditional accredited certifier in NSW with a condition restricting him to not carry out certification works for buildings that incorporate alternative solutions relating to fire safety. In WA he was accredited as a Building Surveying Practitioner – Level 1 without conditions.
RESPONDENT’S SUBMISSIONS
The respondent contends that the basis for the imposition of the relevant condition was to achieve equivalence between the applicant’s NSW Registration under the NSW Act and registration under the WA Act. The respondent submits that the condition imposed on the applicant’s registration is, in substance, the same condition which applies to the applicant’s NSW registration pursuant to subsection 20(5) the MR Act for the following reasons:
§The activities authorised by the NSW Regulations for a “Category A2 - Accredited Certifier - Building Surveying Grade 2” as set out in the Table in Part 1 of the Schedule, are broadly equivalent to the activities authorised by regulation 4A of the WA CRA Regulations for a “building practitioner level 2”; and
§As the applicant’s NSW certificate of accreditation was for work only on behalf of councils, his accreditation as a “A2 - Accredited Certifier - Building Surveying Grade 2” was limited by the prescribed condition contained in regulation 7(3) of the NSW Regulations. As a result, the authorised activities to be carried out under the applicant’s NSW registration were not substantially similar to the activities authorised to be carried out by a “building surveying practitioner level 2” for the purposes of the WA Act; and
§The relevant condition applied to the applicant’s WA accreditation was necessary to seek equivalency between the applicant’s NSW registration and his WA registration.
The respondent advised that further information showed that Mr XY and Mr XZ did not apply to the respondent for accreditation under the MR Act. As such, these are irrelevant for comparison in these proceedings.
The respondent acknowledges that the decisions in respect of Mr XR and the applicant are inconsistent but contends that comparing the applicant’s registration with other building surveyors was not the correct approach. The respondent submits that the only test is one of equivalency having regard to the activities prescribed by the relevant legislative provisions. The fact that the respondent made a previous decision inconsistent with the relevant legislative provisions does not set a precedent for future applications.
CONSIDERATION
The building surveyors identified by the applicant in his submissions are of little assistance. I concur with the respondent that Mr XY and Mr XZ are not relevant as they did not apply for accreditation in WA under the MR Act. Mr XG is also of little relevance to the issues in these proceedings.
Mr XR is relevant for comparison with the applicant, however, despite the respondent making an inconsistent decision regarding the registration of Mr XR, it does not set a precedent binding the respondent, nor does it bind this Tribunal. The task of this Tribunal is to come to the correct and preferable decision. In this case, this requires a proper construction of the legislative provisions to determine whether the condition imposed on the applicant’s WA Registration was necessary to achieve equivalency with his NSW Registration.
The applicant’s NSW Registration was granted following an application for renewal of accreditation as a Council Accredited Certifier to carry out certification work only on behalf of councils. As prescribed by regulation 7(3) of the NSW Regulations, the condition “the holder of the certificate may carry out the certification work authorised by the certificate only on behalf of a council” was applied to the applicant’s certificate. This limited the scope of activities as provided as set out in the Table in Part 1 of Schedule 1 of the NSW Regulations. WA does not have an equivalent qualification.
As Justice French said in Board of Examiners Under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255 at [68]:
The occupation in respect of which registration is sought in the second State must be an equivalent occupation to that for which the applicant is registered in the first State. Equivalency is tested pursuant to s 29(1) by determining whether the activities authorised to be carried out under each registration are substantially the same whether or not that result is achieved by the imposition of conditions. That is a judgement to be made by reference to the terms and statutory context of the registration in each State.
The correct interpretation of the NSW Act and NSW Regulations is that the applicant had registration in NSW in an occupation which was not, without the relevant condition, equivalent to a Building Surveying Practitioner Level 2 (Individual) in WA. The relevant condition was necessary to ensure equivalency between the applicant’s NSW registration and his WA registration.
DECISION
The decision under review is affirmed.
I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
..............................[SGD]..........................................
Associate
Dated: 6 August 2020
Date(s) of hearing: 16 August & 27 September 2019 Applicant: In person Solicitors for the Respondent: Department of Mines, Industry Regulation and Safety
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Statutory Construction
-
Jurisdiction
-
Procedural Fairness
0