Yousefi and Victorian Building Authority - [2018] AATA 3542

Yousefi and Victorian Building Authority [2018] AATA 3542 (19 September 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2017/7203
GENERAL DIVISION  )
Re: Joseph Yousefi
Applicant

And: Victorian Building Authority
Respondent
DIRECTION
TRIBUNAL:               Senior Member Dr M Evans
DATE OF CORRIGENDUM:   25 September 2018
PLACE:                     Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

Paragraph [29] should be changed to read:
“No such Ministerial declaration has been made with respect to building surveyors”.

The first sentence of paragraph [43] should be changed to read:
“At the present time, no such declaration has been made by the Tribunal with respect to building surveyors”.

....................................[sgd]...............................
Senior Member

Division:GENERAL DIVISION
File Number: 2017/7203
Re:Joseph Yousefi
APPLICANT

AndVictorian Building Authority
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:19 September 2018
Place:Perth

The Reviewable Decision of the Respondent dated 16 November 2017 is affirmed.
.........................[sgd]...............................................
Senior Member Dr M Evans
CATCHWORDS
MUTUAL RECOGNITION – application of Mutual Recognition Act 1992 (Cth) – registration of building surveyor – application of mutual recognition principles –substantial equivalence of occupations – Applicant a registered building surveyor in Western Australia – refusal of registration in Victoria – whether activities of building surveyor in Western Australia substantially the same as those of a building surveyor in Victoria under respective registrations – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 25(1), s 43
Building Act 1993 (Vic), s 19, s 19(1)(b), s 19(1)(c), s 24, s 38, s 41, s 43, s 106
Building Act 2011 (WA), s 19, s 19(3), s 19(4), s 20, s 20(1)(c), s 56, s 57, s 58(1),
s 58(1)(b), s 58(1)(c), s 76, s 77, s 78, s 79, s 80, s 110, s 112, s 144
Building Services (Registration) Act 2011 (WA), s 17, s 18
Mutual Recognition Act 1992 (Cth), s 3, s 4(1), s 16, s 17, s 19(1), s 20, s 21, s 23,
s 23(1)(c), s 24, s 28, s 29, s 29(1), s 31, s 31(2), s 32, s 34
Mutual Recognition (Victoria) Act 1998 (Vic)
Mutual Recognition (Western Australia) Act 2010 (WA)
Planning and Environment Act1987 (Vic)
CASES
Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 62 ALD 535
Cleary and Nurses’ Board of the Northern Territory [1996] AATA 171
Re Turner and Registrar, Supreme Court of Queensland and Others (No 2) (2003) 76 ALD 462
Rowe and New South Wales Police Service (1997) 47 ALD 442
Sande v Registrar, Supreme Court of Queensland and Another (1996) 40 ALD 1
SECONDARY MATERIALS
Building Interim Regulations 2017 (Vic), Schedule 7
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA),
r 4A(1)
Building Services (Registration) Regulations 2011 (WA), r 28A, r 28D
National Construction Code 2016, Australian Building Codes Board
REASONS FOR DECISION
Senior Member Dr M Evans
19 September 2018
THE APPLICATION

The Applicant is a building surveyor. He is registered in Western Australia as a “Building Surveying Practitioner Level 1 (Individual) (BSP-1)” and a “Building Surveying Contractor Level 1 (Individual) (BSC-1)” with the Building Services Board (under the Western Australian Building Commission) (Exhibit R2, para [2]).
The Applicant has an offer of employment as a building surveyor in Victoria, subject to being able to obtain equivalent registration with the Victorian Building Authority (the Respondent) (T1).
He applied to the Respondent for registration in Victoria as a “Building Surveyor – Unlimited (BSU)” on the basis of his Western Australian registrations, pursuant to the Mutual Recognition Act 1992 (Cth) (Mutual Recognition Act), with an effective application date of 27 October 2017 (T7; Exhibit R2, para [3]).
On 16 November 2017, the Respondent refused the Applicant’s application for registration (the Reviewable Decision) (T6). His application was refused on the basis that his Western Australian registrations were not equivalent to the Victorian registration sought, pursuant to s 23(1)(c) of the Mutual Recognition Act, and that equivalence could not be achieved by the imposition of conditions (T7).
On 6 December 2017, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the Reviewable Decision (T1).
ISSUES
The issue that requires determination by the Tribunal, is whether, pursuant to s 23(1)(c) of the Mutual Recognition Act (and applying the general principles in s 29(1) of the Mutual Recognition Act), the Applicant’s Western Australian registrations are collectively equivalent to the registration he has applied for in Victoria, and if not, whether equivalence can be achieved by the imposition of conditions.
THE NATURE OF THE CURRENT REVIEW
It was correctly noted by the Respondent in its Statement of Facts, Issues and Contentions (Exhibit R2, para [30]-[31]), that the determination of this application under the Mutual Recognition Act by the Tribunal, does not involve a consideration of the Applicant’s work history, experience, competencies and skills as a building surveyor. Rather, an assessment of equivalence is a somewhat technical exercise which evaluates whether the activities undertaken under each registration are substantially the same. The Tribunal explained this to the Applicant at the hearing, and he indicated that he understood that the matter would proceed on that basis.
The Tribunal notes that one of the contentions raised by the Respondent at the hearing was the issuing of permits under the Victorian and Western Australian legislative regimes, and that the Applicant had prior experience in Western Australia issuing similar permits prior to 2012 before the legislation was amended. Consequently, an option for the Applicant to pursue to achieve his objective of registration with the Respondent was to make a merit-based application for registration with the Respondent, based on his work experience. The Tribunal suggested an adjournment to allow the Applicant to pursue this merit-based option, however the Applicant wanted to proceed with the hearing, and for the Tribunal to determine his application based on the Mutual Recognition Act.
MATERIAL BEFORE THE TRIBUNAL
This application was heard by the Tribunal on 12 July 2018. The Applicant was
self-represented and appeared in person with Mr Ali Newman, also a registered building surveyor in Western Australia, as his support person. Both the Applicant and Mr Newman made submissions to the Tribunal, and as is often the case with self-represented Applicants, some of these submissions consisted of evidence. The Respondent was represented by legal counsel, Mr Nicholas Van Hattem of Francis Burt Chambers.
No other witnesses were called by the parties, and the Tribunal did not have the benefit of any expert evidence before it, either at the hearing, or in the written materials.
The following material was put into evidence at the hearing, and has been considered by the Tribunal:
(a)the Applicant’s Submission in Reply to the Respondent’s Statement of Facts, Issues and Contentions, dated 18 April 2018 (Exhibit A1);
(b)further submissions made by the Applicant in an email dated 2 May 2018 (Exhibit A2);
(c)the Applicant’s additional submissions in a bundle of documents dated 10 July 2018, handed up at the hearing (Exhibit A3);
(d)the Respondent’s s 37 documents, comprising documents T1 to T9 (Exhibit R1); and
(e)the Respondent’s Statement of Facts, Issues and Contentions, dated 23 March 2018 (Exhibit R2).
The Tribunal has considered all of the material before it, as well as the oral submissions of the parties, and the evidence of the Applicant and Mr Newman. The Tribunal is satisfied that the parties had an adequate opportunity to present their case and to be heard by the Tribunal.
LEGAL FRAMEWORK
Background to the Mutual Recognition Act
In Sande v Registrar, Supreme Court of Queensland and Another (1996) 40 ALD 1 (Sande) Lockhart J, at 6-7, explained the background to the Mutual Recognition Act as follows:
The first task is to consider the Act: its origin, construction and application. The Act forms part of a legislative scheme which involved the enactment of complementary legislation by the parliament of each of the states and the legislature of each of the territories and the Commonwealth parliament. The purpose of the scheme was to establish the legal framework for the mutual recognition by the states and territories of each other’s differing regulatory standards regarding goods and occupations. It sought to remove (a) unnecessary impediments to interstate trade in goods arising from differing state and territory standards and regulations, and (b) artificial barriers to the mobility of performance of services amongst states and territories arising from local registration or licensing laws. The Act was perceived by the Commonwealth Parliament and by the parliaments of the states and legislatures of the territories as contributing to the creation of a more efficient national market and enhancing Australia’s international competitiveness.
The Act arose out of a series of meetings of the heads of government of the Commonwealth, states and territories, which had been conducted over two years or more with the objective of achieving better relations between the governments to improve the operation of the national economy. Agreement was reached by the heads of government at the Special Premier’s Conference in October 1990, and the scheme was finalised on 11 May 1992, when the heads of government signed the final agreement endorsing a version of the prospective legislation which was substantially in the form in which the Act was enacted. The agreement required the states and territories to use their best endeavours to pass the necessary legislation by 31 October 1992, and for the Commonwealth to use its best endeavours to pass legislation by 1 January 1993.
The mechanism for implementing the scheme was s 51(xxxvii) of the Commonwealth Constitution, which empowers the Commonwealth parliament, subject to the Constitution, 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 any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law…’
In the case of the mutual recognition legislation, the states and territories agreed to request and empower the Commonwealth to pass a single Commonwealth Act which, once enacted by the Commonwealth, would override any state or territory Acts or regulations that are inconsistent with the principles of mutual recognition set out in the Act.
The relevant request and authorisations by the Parliaments of Western Australia and Victoria are the Mutual Recognition (Western Australia) Act 2010 (WA) and the Mutual Recognition (Victoria) Act1998 (Vic), respectively.
Lockhart J continued on, at 18 of Sande, to state that:
The Act is intended to remove artificial barriers to mobility of services and labour caused by regulatory differences among the states and territories of Australia. If a person is registered to carry out an occupation in one state or territory, then he or she should be able to be registered and to carry on the equivalent occupation in any other state or territory, without undergoing examinations or other assessments with respect to educational qualifications and experience. Nevertheless the Act preserves the right of the state or territory in which the applying person seeks to practise (described in the Act as the second state) to regulate the manner of carrying on an occupation in that state so long as the laws of that state apply equally to persons carrying on or seeking to carry on the occupation under the law of the second state, ss 17 and 20 of the Act.
Purpose of the Act
The principal purpose of the Mutual Recognition Act is set out in s 3 of the Mutual Recognition Act which provides as follows:
The principal purpose of this Act is to enact legislation authorised by the Parliaments of States under paragraph (xxxvii) of section 51 of the Commonwealth Constitution, and requested by the legislatures of the Australian Capital Territory and the Northern Territory, for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia.
Mutual recognition principle and occupations
Section 16 of the Mutual Recognition Act is contained in “Part 3 – Occupations” and provides that:
(1)The mutual recognition principle as applying to occupations is as set out in this Part.
(2)This Part deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.
(3)In this Part, the first-mentioned State is called the first State, and the other State is called the second State. (Original emphasis.)
Section 17 of the Mutual Recognition Act sets out the “mutual recognition principle” as follows:
(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.
Section 4(1) of the Mutual Recognition Act contains the following relevant definitions:
conditions, when used in relation to occupations, means conditions, limitations or restrictions.
…
equivalent, when used in relation to occupations, has a meaning affected by Division 4 of Part 3.
…
local registration authority of a State for an occupation means the person or authority in the State having the function conferred by legislation of registering persons in connection with their carrying on that occupation in the State.
occupation means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted.
…
registration includes the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation.
Registration process
Section 19(1) of the Mutual Recognition Act provides that a person may apply for registration in accordance with the mutual recognition principle, and specifically:
(1)A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.
With respect to entitlement to registration and continued registration, s 20 of the Mutual Recognition Act provides:
(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.
(2)The local registration authority may grant registration on that ground and may grant renewals of such registration.
(3)Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State.
(4)Continuance of registration is otherwise subject to the laws of the second State, to the extent to which 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.
(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.
(6)This section has effect subject to this Part.
The action that must be taken following the lodgement of the notice by an Applicant is provided for in s 21 of the Mutual Recognition Act:
(1)Registration must be granted within one month after the notice is lodged with the local registration authority under section 19.
(2)When granted, registration takes effect as from the date the notice was lodged.
(3)However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration.
(4)If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.
Section 23 of the Mutual Recognition Act provides that the local registration authority may refuse registration. The relevant subsections are:
(1)A local registration authority may refuse the grant of registration if:
…
(c)the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
(2)A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.
The notification of the decision must be in writing, pursuant to s 24 of the Mutual Recognition Act:
A local registration authority must give the person who lodges a notice in accordance with section 19 a notice in writing of its decision to grant registration, or to postpone or refuse the grant of registration, or to impose conditions on registration.
Equivalence of occupations

Section 28 of Division 4 of Part 3 of the Mutual Recognition Act, provides that “[t]he equivalence of occupations carried on in different States is to be determined in accordance with this Part.”
Section 29 of Division 4 of Part 3 of the Mutual Recognition 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.
(3)This section has effect subject to any relevant declarations in force under this Division.
(Emphasis added.)
In Western Australia, the applicable legislation under which building surveying practitioners and contractors are registered is the Building Services (Registration) Act 2011 (WA) (BSRA), s 17 and 18. In Victoria, the applicable legislation under which registration is sought is the Building Act 1993 (Vic) (the Victorian Building Act), specifically s 169.
Pursuant to s 32 of the Mutual Recognition Act, Ministers can make a declaration that specified occupations are equivalent. These declarations are also published in the Gazette. Section 32 of the Mutual Recognition Act provides:
(1)A Minister from each of 2 or more States may jointly declare, by notice in the Gazette, that specified occupations are equivalent, and may specify or describe conditions that will achieve equivalence.
(2)The declaration may be amended or rescinded in the same way.
(3)The declaration has effect only in relation to the States concerned.
(4)The appropriate local registration authority is to give effect to the declaration.
No such Ministerial declaration has been made with respect to quantity surveyors.
In Rowe and New South Wales Police Service (1997) 47 ALD 442 (Rowe), at para [12], Deputy President Forgie explained the steps that the Tribunal should apply when considering the substantial equivalence of occupations under s 29 of the Mutual Recognition Act:
It is clear from this section that there are, in practical terms, five distinct steps to be undertaken in determining the equivalence of occupations. The first is to identify the occupation for which the person is registered in the first state or territory. This is followed by the identification of the activities authorised to be carried out under that registration. The third step is to identify an occupation in the second state or territory for which a person may be registered and the fourth to ascertain the activities authorised to be carried out under that registration. A comparison is then made between the activities authorised to be carried out under each of the registrations to determine whether those activities are substantially the same. That is the fifth step. Part of that fifth step is to consider whether conditions should be imposed on registration to achieve equivalence between those occupations.
These steps were summarised by Deputy President Purvis in Re Turner and Registrar, Supreme Court of Queensland and Others (No 2) (2003) 76 ALD 462 (Turner) at [28]:
In order that the relevant ‘substantial equivalence of occupation’ … may be ascertained a number of distinct steps of inquiry have to be undertaken namely:
(1)identify the occupation for which the person is registered in the first state or territory;
(2)identify the activities authorised to be carried out under that registration;
(3)identify an occupation in the second state or territory for which a person may be registered;
(4)ascertain the activities authorised to be carried out under that registration;
(5)a comparison is then made between the activities authorised to be carried out under each of the registrations to determine whether those activities are substantially the same and recognise whether conditions should be imposed on registration to achieve equivalence between those occupations.
In Sande, Davies J stated, at 2, that:
It is fundamental to the operation of these provisions that there be an equivalence between occupations carried on in different states. Such equivalence will exist where the activities authorised to be carried out under each registration are substantially the same. Equivalence may be achieved by means of the imposition of appropriate conditions. (Emphasis added.)
Deputy President McMahon, in Cleary and Nurses’ Board of the Northern Territory [1996] AATA 171 (Cleary), further explained:
To establish what is an equivalence of occupation for the purposes of s 17, it is necessary to look to s 29. Sub-section (1) merely requires the activities in both States to be ‘substantially the same’. There is no requirement that they be identical. The section, it should be noted, directs attention to the activities to be carried on, not to the legal system of registration. (Emphasis added.)
In Turner, Deputy President Purvis considered the meaning of “substantially the same” at [24]-[25]:
(24) The context in which the word ‘substantially’ is found is as a qualification upon the word ‘same’. That is the word means something less than ‘the same’, that is, ‘identical with’. It seems to the tribunal that the more apt paraphrase of the concept is by the use of the words ‘in the main’ or ‘as to the greater part’ or ‘essentially’: see also Secretary, Department of Social Security v Wetter (1993) 40 FCR 22 at 29; 29 ALD 310 at 317; 112 ALR 151 at 158 ; Commissioner for Superannuation v Scott (1987) 71 ALR 408 at 411.
(25) The word does not stand alone but qualifies the concept of ‘the same’. When considered in the context of the intent of the legislation, as already discussed, that of mutually recognising the equivalence of occupations, it is appropriate to consider whether the activities of the relevant occupations are ‘in the main’ or ‘as to the greater part’ the same. The judge of fact is to look at the totality of the activities in which a licensed conveyancer is able to engage and the totality of the activities in which a solicitor is able to engage and as a matter of fact and common sense ask the question whether these activities are in the main, or as to the greater part the same. While ‘substantially’ cannot be quantified (see Re Lokuge and Department of Employment, Education and Training (1994) 35 ALD 785 at 788; Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367; 42 FLR 331 ) it does suggest that a significant and considerable portion of the activities must be the same. A determination as to the latter depends partly on the tribunal’s own judgment and partly on the burden of the evidence tendered. Whether there is a substantial sameness is a question of fact.
(Emphasis added.)
Further, in Turner at [18], Deputy President Purvis stated that the appropriate approach to the question of equivalence was a practical, common sense one:
(18) The above mentioned provisions have as a fundamental prerequisite to their operation the existence of an equivalence between occupations carried on in different states such equivalence existing were the activities authorised to be carried out under each registration are substantially the same. It is to be observed however, that equivalence may be achieved by means of the imposition of appropriate conditions… However, …the Act is to be applied in a practical, common sense manner regard being had to the substance of the matter and to the substantial equivalence of occupations. The Act seeks to facilitate the right of Australians entitled to practise in one state or territory to pursue their vocations throughout Australia without submitting themselves to examinations or obtaining qualifications required by another region: ... It is not a matter of forcing the will of one state upon another. (Emphasis added.)
Equivalence must be determined on a case by case basis, and will depend upon the specific occupations and statutes in question. In Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 62 ALD 535 (Lawrence), Lockhart J stated 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. Equivalence 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 means of the imposition of conditions. That is a judgment to be made by reference to the terms and statutory context of the registration in each state. (Emphasis added.)
JURISDICTION
Section 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that the jurisdiction of the Tribunal is given to it by other “enactments”, which grant the Tribunal jurisdiction to review certain decisions made under those enactments:
(1)An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
Section 34 of the Mutual Recognition Act provides that an application can be made to the Tribunal for review of a decision of a local registration authority:
Review of decisions
(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 .
(3)If a local registration authority gives a person written notice of the making of a decision referred to in subsection (1), the notice must include a statement to the effect that:
(a)subject to the Administrative Appeals Tribunal Act 1975, application for review of the decision may be made to the Tribunal by a person whose interests are affected by the decision; and
(b)except where subsection 28(4) of that Act applies, application may be made in accordance with section 28 of that Act by or on behalf of that person for a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving the reasons for the decision.
(4)Any failure to comply with subsection (3) does not affect the validity of the decision.
(Original emphasis.)
The Reviewable Decision of the Respondent was made under s 23(1)(c) of the Mutual Recognition Act (Exhibit R1, T6 and T7) as a part of the Respondent’s statutory functions, and accordingly, is reviewable by this Tribunal.
The orders that can be made by the Tribunal are set out in s 43 of the AAT Act which provides:
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Section 31 of the Mutual Recognition Act confers more specific powers on the Tribunal as follows:
(1)On a review, the Tribunal may make an order that a person who is registered in a particular occupation in a particular State is or is not entitled to registration in another State in a particular occupation, and may specify or describe conditions that will achieve equivalence.
Similarly, under s 31(2) of the Mutual Recognition Act, the AAT may make a declaration that occupations carried on in two states are not equivalent, which will be published in the Gazette:
(2)On such a review, the Tribunal may make a declaration that occupations carried on in 2 States are not equivalent, but only if the Tribunal is satisfied that:
(a)the activities involved in the occupations are not substantially the same (even with the imposition of conditions); or
(b)registration in one State should not entitle registered persons to carry on a particular activity or class of activity in the other State, where:
(i)     the activity or class of activity is a material part of the practice of a person registered in the first State for the occupation; and
(ii)    the activity or class of activity, if carried out by a person not conforming to the appropriate standards, could reasonably be expected to expose persons in the other State to a real threat to their health or safety or could reasonably be expected to cause significant environmental pollution (including air, water, noise or soil pollution); and
(iii)    it is not practicable to protect the health or safety of such persons from that threat or the environment from such pollution by regulating the manner in which services in the occupation are provided.
(3)The Registrar or other proper officer of the Tribunal must cause a notice setting out the terms of a declaration under this section to be promptly published in the Gazette.
(4)A declaration made on the basis of paragraph (2)(b) has effect for no longer than 12 months, and the local registration authority must promptly notify appropriate authorities in each other State and the Commonwealth of the declaration.
(5)The local registration authority is to give effect to the decision on the review, and must thereafter act in conformity with the decision in relation to other persons seeking registration.
At the present time, no such declaration has been made by the Tribunal with respect to quantity surveyors. Indeed, the Tribunal will only make such a declaration in rare circumstances. It should exercise caution in doing so, as explained by Deputy President McMahon in Cleary, at [48]-[50], and only after receiving “strong evidence”:
48. The consequences of making a declaration are set out in sub-sections (3), (4) and (5). Clearly the making of such a declaration affects interests other than those of a particular applicant. If any such declaration were to be contemplated by the Tribunal then, in my view, it would be incumbent upon the Tribunal to seek from the applicant evidence as to the views of others that might be affected. In the present circumstances, the various Nursing Associations would undoubtedly wish to be heard on the question whether the occupation of nursing as registered in this State is not equivalent to the occupation of nursing as registered in the Northern Territory.
49. To make such a declaration therefore would be a matter of some gravity. The Tribunal would need particularly strong evidence before it could be satisfied that registration in one State should not entitle registered persons to carry on a particular activity or class of activity in the other State.
50. In particular, strong evidence would be required that any activity or class of activity could reasonably be expected to expose persons in the second State to a real threat to their health or safety. This is strong language. It is not sufficient to raise the possibility of a risk. There is inherent in the use of the words ‘real threat’ a sense of imminent peril. That danger must arise directly from the fact of registration in the second State. The evidence in this case falls far short of the standard required.
APPLICANT’S SUBMISSIONS
The Applicant submitted that he should be registered as a building surveyor in Victoria by way of mutual recognition of his Western Australian registrations. This is because, the Applicant submitted, the activities of a building surveyor in Western Australia and Victoria are substantially the same. The Applicant’s argument in this regard is summarised in paragraph [29] of Exhibit A1 as follows:
·education and experience that is required for the occupation of building surveyors is the same in both states;
·building surveyor role is the same in both states;
·building surveying work as defined in legislations (sic) is the same in both states;
·professional liability of a western (sic) Australian building surveyor in relation to certificate of compliance is the same as responsibility of a Victorian building surveyor in relation to building permit in Victoria; and
·activities involved in the occupations are the same in both states; and
·building Surveyors in all around Australia refer to the National Construction Code and Australian Standards for building surveying work. Therefore, the differences are not significant and not to a large degree.
With respect to education and experience, the Applicant submitted that (Exhibit A3, pages 2-3):
(a)The qualifications and experience required for registration to undertake level 1 building surveying work is set out in r 28D of the Building Services (Registration) Regulations 2011 (WA) and are: “Bachelor of Building Surveying and Certification granted by the Central Queensland University; or an equivalent qualification as determined by the Board” and “experience in building surveying work for periods totalling at least the equivalent of 3 years full-time”.
(b)Schedule 7 of the Building Interim Regulations 2017 (Vic) also states the qualifications of a building surveyor (unlimited) as:
(a)“a degree in building surveying from a university or institution approved and authorised under Part 4.3 of the Education and Training Reform Act 2006 to conduct an accredited course leading to that degree”; and
(b)“3 years of practical experience to the satisfaction of the Authority”.
With respect to what can generally be carried out under each registration, the Applicant submitted that (Exhibit A3):
(a)Level 1 building surveying work is defined by r 28A of the Building Services (Registration) Regulations 2011 (WA) (the BSR Regs): “building surveying work level 1 means building surveying work in respect of any building or incidental structure”. This can be contrasted with “building surveying work level 2” which is restricted to certain classes of buildings, and floor area and storey restrictions.
(b)An explanation of the responsibilities of a “building surveyor (unlimited)” in Exhibit A3 from page 2 of a “Practitioner Guide” on the Respondent’s web page titled, “What is Building Surveyor work? A guide to read before you apply for registration” (Practitioner Guide) states:
Persons registered in the Building Surveyor (Unlimited) class are responsible for carrying out the functions of a building surveyor in respect of buildings of all BCA classes, regardless of the height and floor area.
In contrast, the role of a “building surveyor (limited)” is limited by square meterage and to buildings of up to three storeys in height.
The Applicant also referred to the following overviews of the work of a building surveyor (Exhibit A3, page 13):
(a)regulation 4A(1) of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) defines “building surveying work” as:
(a)the examination of plans and specifications for a building or incidental structure to assess the safety, accessibility and energy efficiency of a building or incidental structure if the building or incidental structure is built in accordance with the plans and specifications; and
(b)the examination of an existing building or incidental structure to assess the safety, accessibility and energy efficiency of the building or incidental structure.
(b)The Practitioner Guide, at page 1, provides the following overview of “what is building surveyor work?”:
Building Surveyors provide independent oversight of buildings and building work throughout the construction process and upon completion of construction to ensure that buildings are safe for use, accessible and energy efficient.
Although not referred to by the Applicant, the Tribunal notes that this overview continues on to state:
They do this by:
·   assessing and approving (where appropriate) applications for building permits
·   undertaking inspections of buildings and building work
·   approving building occupation/use (where appropriate).
A person registered as a Building Surveyor in Victoria may carry out the following functions under the Building Act 1993:
·issue building permits
·carry out inspections of buildings and building work
·issue certificates of final inspection and occupancy permits
·approve temporary occupation of buildings, and
·enforce safety and building standards through:
-       giving and enforcing directions to fix non-compliant building work
-       causing a building notice to be served
-       making building orders, and
-       making emergency orders (municipal building surveyors only).

The Applicant also made submissions that his Western Australian registration would entitle him to registration in New South Wales and Queensland. In support, he referred to an email dated 8 February 2018 from the New South Wales Building Professionals Board which stated that “[s]ubject to qualification from the Building Commission in WA you would be eligible for Accredited certifier – building surveying grade 1…subject to similar conditions as previously advised”; and an email dated 22 May 2018 from the Queensland Building and Construction Commission which states that “[t]he attached Registered Building Practitioners Level 1 Certificate from WA is equivalent to Building Certifier 1 standard” (Exhibit A3, pages 7 and 10). At the hearing, the Applicant argued that the Respondent accepts registrations from those States as equivalent, which is a further indication of equivalence (see also transcript, page 5).
Accordingly, the Applicant did not suggest any conditions to assist the achievement of equivalence because he was of the view that the activities in both jurisdictions are substantially the same, and that conditions were not required to achieve equivalence.
RESPONDENT’S SUBMISSIONS
The Respondent made the following submission (Exhibit R2, para [7]):
It is submitted that the Tribunal cannot be satisfied that the Applicant’s Western Australian registrations are equivalent because the range and nature of activities authorised by his Western Australian registrations are substantially narrower than the range and nature of activities authorised by the Victorian registration being sought.
The Respondent made the following submissions about the activities of building surveyors in the two jurisdictions and their lack of equivalence (Exhibit R1, T2, paras [20]-[24]; see also, Exhibit R2, paras [16]-[29]):
Western Australia Registration – Building Surveying Practitioner Level 1
20. Mr Yusefi’s Western Australia registrations are in the Category of ‘WA – Building Surveying Practitioner Level 1 (BSP-1)’ and ‘WA – Building Surveying Contractor Level 1 (BSC-1)’. A BSP-1 may only sign a certificate of design, construction or building compliance whereas a Victorian registered BSU’s role is broader in that a BSU may issue a building permit.
21. The BSP-1 also has limited power to inspect building works relative to the powers of a BSU. While a BSP-1 may undertake mandatory inspections following installation of safety systems, BSUs may carry out more general inspections to verify that the work complies with the building permit, the Building Act and the Regulations.
22. The BSU’s powers extend to issuing building notices to facilitate compliance with the Building Act and Regulations, and to issuing a building order against non-compliant builders at the expiration of a building notice period. A further point of distinction is that, unlike a BSU, a BSP-1 has no role in assessing and determining protection works.
Western Australia Registration – Building Surveying Contractor Level 1
23. A BSC-1 is limited to certifying compliance of any building or incidental structure; they cannot issue building permits. In Western Australia, building permits are issued by the relevant Permit Authority. This necessarily means that a BSC-1 cannot carry out two key functions that a BSU is authorised to carry out, namely, issuing building permits and occupancy permits.
24. Further, a BSC-1 has a far more limited role in relation to mandatory inspections in comparison to a BSU, and no role in the enforcements of building standards or the assessment and determination of protection works, which can be undertaken by a BSU.
The Respondent further submitted (Exhibit R2, paras [28]-[29]) that:
28. Ultimate decision-making responsibility for key stages of the building control process in Western Australia is vested in the permit authority, rather than the building surveyor appointed in respect of the building work as is the case in Victoria.
29. These differences are not merely formal; they are substantial. The activities authorised by registration in Victoria (such as the issue of an occupancy permit or building permit) require consideration and assessments of a broader range of compliance issues than the activities authorised by registration in Western Australia (such as the issue of a certificate of building compliance).
The Respondent further submitted that the imposition of conditions would not be appropriate to achieve equivalence because (Exhibit R2, para [33]):
To achieve equivalence through the imposition of conditions, it would be necessary to prevent the applicant from carrying out many of the most important functions of a Victorian building surveyor: in particular, issuing building permits and certificates of occupancy. This is clearly impractical, and would defeat the purpose of the registration.
CONSIDERATION
The Tribunal will now consider and apply the five step process identified by Deputy President Forgie in Rowe, as summarised by Deputy President Purvis in Turner.
The specific occupations in each state have already been identified, and discussed above. As noted above, the Applicant is a building surveyor and holds two registrations in Western Australia, BSP-1 and BSC-1. He is seeking registration as a building surveyor in Victoria – specifically as a BSU – under the Mutual Recognition Act. In the majority of the submissions made by the parties, the two Western Australian registrations are dealt with together, and consequently the Tribunal will do the same in this consideration.
Before proceeding to identify and compare the activities authorised to be carried out under each registration, the Tribunal agrees with the Applicant’s observation that the tertiary qualifications and experience required for the registrations in each jurisdiction are substantially similar. However, qualifications and experience are different to the activities that are authorised to be carried out under each registration, and it is these activities that the Tribunal must consider when applying the five step process from Rowe and Turner.
There was some discussion at the hearing regarding the time frame of the activities carried out under each registration, based on paragraph [152] of the decision of Carr J in Lawrence, which reads as follows:
There is nothing in the Act which suggests that the relevant registration either in the first state or in the second state must be for an occupation which is currently carried on in either of those states at the time when an application is made for registration. In my view, no such condition should be implied. In any particular area of human activity circumstances can change so that, for example, it may be uneconomical to mine below ground at one time but the market may improve to the extent that underground mining is justified. The technology for recovery of underground coal might change from time to time, rendering previously uneconomical deposits worth recovering. Section 29 of the MR Act [Mutual Recognition Act] speaks of ‘activities authorised to be carried out under each registration’. In my opinion, the Act should be construed so that registration for an occupation is taken to mean authority to carry out activities either currently or in the future.
Some doubt was raised by the Applicant as to whether the wording used by Carr J at the beginning of this paragraph suggested that the Tribunal could take into account activities that were previously authorised to be undertaken under a registration (transcript, page 20). This was because, according to the Applicant, he was qualified to issue permits in Western Australia prior to 2012 before the Western Australian legislation was amended to reallocate this role to a permit authority. In the Tribunal’s opinion, the process is not retrospective, and indeed, to base such an analysis on versions of the legislation which are not current would create considerable confusion and undermine the purpose of the mutual recognition legislation by moving it toward a merit-based process. In the Tribunal’s opinion, Carr J is referring to a factual change as to whether a particular type of mine was operating at a particular time. Carr J makes it clear at the end of paragraph [152], through reference to “activities…currently or in the future”, that the process is not retrospective and that the current legislation must be considered.
The Tribunal recognises that, as submitted by the Applicant, when one considers the general description of each registration, as noted above in para [46], they appear to be substantially similar. For example, both registrations are the highest level of registration in each jurisdiction and are unrestricted in terms of building height and floor area. Further, as noted above in para [47], an overview of the work that a building surveyor undertakes in each jurisdiction shows that both jurisdictions require the building surveyor to “assess the safety, accessibility and energy efficiency” of buildings when they are being completed. However, the five step test identified in Rowe and Turner requires the Tribunal to identify and compare the activities authorised to be carried out under each registration in more specific detail than this general overview.
As noted in paragraph [48] above, the Applicant submitted that he would be entitled to registration in New South Wales and Queensland, and that the Respondent accepts registrations from these States as being equivalent. The Tribunal does appreciate that this perception would add to the Applicant’s frustration about the process of mutual recognition. There was, however, no other evidence before the Tribunal as to whether this is in fact the practice of the Respondent. In any event, the Tribunal notes that the process of comparison that must be undertaken by the Tribunal is specific to the two State jurisdictions in question – namely the State in which the person is initially registered (in this case, Western Australia) and the State in which they are seeking to be registered (in this case, Victoria). Consequently, whether the Respondent has recognised the equivalence of a registration in other States is not directly relevant to this comparison, because each State has a different legislative regime.
To illustrate the substantial equivalence of the occupations in Western Australia and Victoria, the Applicant also submitted at the hearing that a substantial part (he estimated approximately 90%) of the role of a building surveyor in all Australian jurisdictions was clarification of compliance with the National Construction Code. There was, however, no expert or other evidence before the Tribunal to corroborate this percentage. Further, at the hearing, counsel for the Respondent submitted in response that whilst certification of compliance with the National Construction Code may be a substantial part of the role of a building surveyor in Western Australia, in Victoria, building surveyors are empowered under their registration to undertake additional activities which exceed those authorised under the Western Australian registration.
These were summarised above in the section, “Respondent’s submissions”, and will also be discussed here. At the hearing, the main focus of the submissions by the Respondent’s counsel was the difference in the assessment and issuing of building permits between Western Australia and Victoria (see for example, transcript, page 30-31), so this will be the main focus of the Tribunal’s discussions.
The Tribunal notes that, with respect to the assessment and issuing of building permits:
(a)
In Western Australia, a permit authority, and not a building surveyor, issues a building permit (s 20, Building Act 2011 (WA) (the Western Australian Building Act)). It is the permit authority that must grant the building permit if it is satisfied of a list of factors labelled from (a) through to (s) of s 20 of the Western Australian Building Act. One of these factors is that there is a certificate of design compliance from a building surveyor which complies with s 19 Western Australian Building Act (s 20(1)(c) Western Australian Building Act). The certificate should contain a statement from the building surveyor that if the building or incidental structure is completed in accordance with plans and specifications, that the building or structure complies with applicable standards (s 19(3) Western Australian Building Act), namely the National Construction Code. In the certificate of compliance, the building surveyor may also specify inspections and tests that the building surveyor thinks should be conducted during or at the completion of the building work

(s 19(4) Western Australian Building Act). At the Tribunal hearing, Mr Newman submitted on behalf of the Applicant that s 144 of the Western Australian Building Act provides that the permit authority has no responsibility, and is not under a duty to form its own opinion about a matter signed off in a certificate of building compliance or design compliance.
(b)This can be contrasted with s 19 of the Victorian Building Act in which a building surveyor issues the building permit. Further, under s 19(1)(b) and (c) of the Victorian Building Act, the building surveyor may issue the permit with conditions or refuse the permit altogether. Under s 24 of the Victorian Building Act, the building surveyor must not issue a building permit unless he or she is satisfied that the building will comply with various legal requirements including that the building work and the building permit complies with the Victorian Building Act and the Building Regulations, as well as provisions of the Planning and Environment Act 1987 (Vic) and other compliance issues such as relevant consents from reporting authorities being obtained.
In the Tribunal’s opinion, as a matter of statutory construction, the activities relating to the assessment and issuing of building permits in Western Australia and Victoria are quite different, and could not be regarded as substantially similar. Although the Applicant argued that in Western Australia the issuing of a permit was an administrative function that did not require specialist building surveying qualifications, the permits regime under the Victorian legislation gives the building surveyor a far greater discretion, and far more responsibility than in Western Australia, and requires the building surveyor to assess compliance with various legal and statutory requirements that are specific to Victoria, and not just compliance with the National Construction Code. In the area of building permits, the activities of a building surveyor under the Victorian registration regime exceed those required under the Western Australian registration, and could not be regarded as substantially similar.
Additionally, under the Victorian statutory regime, building surveyors undertake additional activities with respect to safety and compliance issues relating to the construction and use of buildings, which in Western Australia are undertaken by the permit authority. Under

s 106 of the Victorian Building Act, a building surveyor may cause a building notice to be served on an owner of a building in a variety of circumstances, including if the building surveyor is of the opinion that building work that has been carried out contravenes a building permit, the Victorian Building Act or regulations; if the use of the building contravenes the Victorian Building Act or regulations; and for other safety or health reasons specified in that section. Further, generally, under Division 2 of Part 8 of the Victorian Building Act, building surveyors can issue building orders requiring owners of land to stop work, undertake work, cease occupation of a building, or evacuate a building. In Western Australia, building surveyors cannot undertake similar activities, and instead, under Division 5 of Part 8 of the Western Australian Building Act, the permit authority is responsible for making these types of building orders (see s 110 and s 112 Western Australian Building Act).
Similarly, under s 38 of the Victorian Building Act, a building surveyor is authorised to issue a certificate of final inspection. Part 5 of the Victorian Building Act provides that an application for an occupancy permit must be made to a building surveyor (s 41 Victorian Building Act), and a building surveyor is authorised to make a decision about an application for an occupancy permit which includes a decision to issue the permit with or without conditions, or to refuse an occupancy permit (s 43 Victorian Building Act). However, under s 58(1) in Part 4 of the Western Australian Building Act, the application for an occupancy permit is made to the permit authority who must grant the occupancy permit if the permit authority is satisfied of the matters listed in subsections (a) through to (l) of the Western Australian Building Act. Two of these matters relate to the building surveyor who must sign a certificate of construction compliance or building compliance (see s 58(1)(b) and (c)) under s 56 and s 57 of the Western Australian Building Act). Consequently, the activities of the building surveyor, under these two statutory regimes, cannot be said to be substantially similar because the Victorian building surveyor has responsibilities in connection with the issuing of permits which the Western Australian building surveyor does not have because these activities are undertaken by the relevant permit authority.
When one compares other provisions of the Victorian and Western Australian legislation with respect to the other activities of building surveyors, there are some other differences whereby the Victorian building surveyor is empowered to undertake additional activities to those that a building surveyor is authorised to undertake in Western Australia. For example, under Part 7 of the Victorian Building Act, a building surveyor has a more active role in assessing whether protection works are required to protect an adjoining property. The building surveyor will consider and make a determination about the appropriateness of the proposed protection works. However, in Western Australia, the responsibility to protect an adjoining property rests with the “person responsible for [the] work” (see for example, s 76, 77, 78, 79, and 80 of the Western Australian Building Act) and the building surveyor is not mentioned in these statutory provisions.
After undertaking the comparison of activities authorised to be carried out under each of the registrations, it cannot be concluded that the activities are substantially the same. As noted above, there is no requirement that the activities should be identical, however they could not be said to be in the main or as to the greater part, the same, particularly because of the additional activities undertaken by a building surveyor under the registration in Victoria, which are not undertaken by building surveyors in Western Australia.
For the reasons outlined above, it cannot be concluded that the activities undertaken under the registrations in Western Australia and Victoria are substantially similar.
Additionally, as the registration in Victoria requires the building surveyor to undertake additional activities, which include assessing compliance with various legal and statutory requirements that are specific to Victoria, the differences are too substantial to be resolved through the imposition of conditions. In this regard, the Tribunal agrees with the Respondent’s submission that ‘to achieve equivalence through the imposition of conditions, it would be necessary to prevent the applicant from carrying out many of the most important functions of a bit Victorian building surveyor’ including the issuing of permits, which is impractical and would defeat the purpose of the registration (Exhibit R2, para [33]).
CONCLUSION
The Tribunal does not regard it appropriate in the circumstances to make a general declaration under s 31(2) of the Mutual Recognition Act that the occupations carried on under the registrations in Western Australia and Victoria are not equivalent. The Tribunal is mindful of the comments of Deputy President McMahon in Cleary, discussed earlier in these reasons for decision. Given that the making of such a declaration would affect interests beyond those of the Applicant, in order to make such a declaration, the Tribunal would need to be satisfied that it was desirable to make such a declaration based on evidence from others that might be affected. These may include the Building Services Board of Western Australia and the Australian Institute of Building Surveyors. The Tribunal does not have any submissions or evidence of this kind before it, and further notes that such a declaration was not sought by the Respondent.

The Tribunal appreciates that this has been a frustrating process for the Applicant. At the hearing, the Applicant stated that he had moved to Western Australia from Victoria, and has some experience in Victoria, as well as in the Northern Territory and Western Australia. There is no doubt that he has extensive experience as a building surveyor, and as noted above, the Applicant has had practical experience with the issuing of permits in Western Australia prior to 2012 when these functions were overtaken by the permit authority. However, as noted above, the process by which the Tribunal is required to undertake in order to assess substantial similarity under s 29(1) of the Mutual Recognition Act is essentially one of statutory comparison. It is not a process by which the individual skills and work experience of the Applicant are taken into account. However, as also noted above, the Applicant retains the option of making an application to the Respondent to be assessed on the basis of merit, which may achieve the outcome sought by the Applicant in the first place, namely registration as a BSU in Victoria without conditions.
DECISION
The Reviewable Decision of the Respondent dated 16 November 2017 is affirmed.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

..........................[sgd]..............................................
Administrative Assistant Legal
Dated: 19 September 2018

Date of hearing: 12 July 2018

Applicant: In person

Counsel for the Respondent: Nicholas Van Hattem

Date of hearing:	12 July 2018
Applicant:	In person
Counsel for the Respondent:	Nicholas Van Hattem