Vuong and Building Services Board (WA)
[2019] AATA 519
•22 March 2019
Vuong and Building Services Board (WA) [2019] AATA 519 (22 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/4475
Re:Terence Vuong
APPLICANT
AndBuilding Services Board (WA)
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:22 March 2019
Place:Sydney
The Tribunal has jurisdiction to review the decision of the Respondent made under section 20(5) of the Mutual Recognition Act 1992 (Cth).
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Senior Member A Poljak
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – mutual recognition – decision to impose condition on registration – whether Tribunal has jurisdiction to review the imposition of an equivalent or identical condition – power under which conditions imposed is discretionary – Tribunal has jurisdiction to review decision
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 25
Mutual Recognition Act 1992 (Cth) ss 20(5), 33, 34
CASES
Schulz and Medical Board of Queensland [2001] AATA 468
Schulz v Medical Board of Queensland [2001] FCA 1771
REASONS FOR DECISION
Senior Member A Poljak
22 March 2019
Mr Terence Vuong, the applicant, seeks review of a decision to impose a condition on his registration as a ‘Building surveying practitioner level 2’ under the Building Services (Registration) Act 2011 (WA) (“WA Act”) pursuant to the Mutual Recognition Act 1992 (Cth) (“MR Act”) (“the decision”). The basis for the imposition of the condition was to achieve equivalence between the applicant’s NSW registration under the Building Professionals Act 2005 (NSW) (“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 section 20(5) of the MR Act which 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.
These proceedings concern a jurisdictional question raised by the respondent, namely, that the Administrative Appeals Tribunal (“the Tribunal’) does not have jurisdiction to review the decision. The respondent submits that a decision under section 20(5) of the MR Act is not reviewable if it simply involves the imposition of a condition in order to achieve equivalence of occupations or involves the imposition of the same condition which applies in the first State. In support of this proposition the respondent relies on the decision of Schulz and Medical Board of Queensland [2001] AATA 468 (“Schulz”). I disagree. For the following reasons, I find that this Tribunal does have jurisdiction to review the decision.
The Tribunal has no general power to review decisions; it may only review decisions in relation to which jurisdiction has been conferred on it by an enactment; see section 25 of the Administrative Appeals Tribunal Act1975 (Cth).
Section 34 of the MR Act provides:
(1) Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Tribunal for review of a decision of a local registration authority in relation to its functions under this Act.
(2) In subsection (1):
“decision” has the same meaning as in the Administrative Appeals Tribunal Act 1975.
As already stated above, the respondent contends that Schulz supports the proposition that decisions made under section 20(5) of the MR Act, insofar as they simply involve the imposition of equivalent conditions or the same condition which applies in the first State, are not reviewable. This contention is misconceived. In Schulz, conditions were automatically applied to the applicant’s registration as a medical practitioner in Queensland as a result of disciplinary proceedings pursuant to section 33 of the MR Act. This power is a substantially different power to that provided for by section 20(5) of the MR Act. Section 20(5) is discretionary and requires consideration of what appropriate conditions are to be applied.
On appeal to the Federal Court of Australia, in Schulz v Medical Board of Queensland [2001] FCA 1771 at [14] and [15] Justice Kiefel said:
[14] Reference was also made to s 20(5), in support of the contention that the Board could be expected to consider what, if any, conditions to impose. The provision would appear to allow a local registration authority to add conditions where another State has not done so. In that process it requires consideration of what might be a comparable condition in the other State. It would not seem to me to have application in circumstances where a condition has automatically been applied to registration, as a result of disciplinary action. Where that occurs the second registering authority might consider whether it should apply at all. This is a different power to that given under s 20(5).
[15] There was no decision and no refusal capable of providing the AAT with jurisdiction under its Act…
Section 33 of the MR Act does not call for any decision itself on the part of the second State; see Schulz v Medical Board of Queensland [2001] FCA 1771 at [10]. Accordingly, Schulz is distinguishable from the present proceedings.
Having regard to the power conferred on the Tribunal by section 34 of the MR Act, the Tribunal has jurisdiction to review the decision of the respondent made under section 20(5) of the MR Act.
I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 22 March 2019
Date of hearing: 5 March 2019 Applicant: In person Solicitors for the Respondent: Mr J Derby, Department of Mines, Industry Regulation and Safety
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