Federal Court of Australia

Victorian Building Authority v Cau [2023] FCAFC 120

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent's costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    Part 3 of the Mutual Recognition Act 1992 (Cth) provides a mechanism by which a person who is registered for an occupation in one State is entitled to registration in the equivalent occupation in another State after notifying the local registration authority of the other State. The local registration authority may refuse registration in the other State if 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. This appeal concerns the approach to be taken by a local registration authority and the Administrative Appeals Tribunal on review to the determination of equivalence.

2    The respondent, Massimo Cau, is registered in Western Australia for the occupation "Building Surveying Practitioner Level 1 (Individual)" and as a "Building Surveying Contractor Level 1 (Company)". Mr Cau is required to be registered for that occupation under the provisions of the Building Services (Registration) Act 2011 (WA) and Building Services (Registration) Regulations 2011 (WA). A person cannot carry on work as a building surveyor in Victoria if required to be registered for that occupation under the provisions of the Building Act 1993 (Vic) and Building Regulations 2018 (Vic). Mr Cau applied to the Victorian Building Authority to be registered for the occupation "Building Surveyor – Unlimited" (a class of building practitioner under the Building Act (Vic) and Building Regulations (Vic)) in accordance with the Mutual Recognition Act. The Authority refused Mr Cau's application on the grounds that his Western Australian registrations were not equivalent to registrations he sought in Victoria and equivalence could not be achieved by the imposition of conditions.

3    Mr Cau applied to the Tribunal for review of the Authority's decision. The Tribunal affirmed the Authority's decision. Mr Cau appealed to this Court from the Tribunal's decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal reached the view that the occupations were not equivalent because registration under the Building Act (Vic) authorises a building surveyor to issue certain permits and directions, whereas registration under the Registration Act (WA) does not authorise a building surveyor to issue the same kinds of permits and directions, as in Western Australia those functions are performed by a separate permit authority or not at all. Whether it was correct to assess equivalence on the basis of such statutory functions and powers is the issue in this appeal.

4    The primary judge concluded that the Tribunal's approach was not correct and made orders allowing the appeal, setting aside the Tribunal's decision and remitting the matter to the Tribunal for determination according to law and the primary judge's reasons: Cau v Victorian Building Authority [2022] FCA 45 (J).

5    Section 28 of the Mutual Recognition Act provides that the equivalence of occupations carried on in different States is to be determined in accordance with Pt 3. Relevantly, s 29(1) of the Act provides:

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).

6    The primary judge found (all emphasis in original) that words used in the phrase "'activities authorised to be carried out under each registration' … direct attention to the activities that comprise the nature and extent of the occupation being registered" (at J [11]). He explained that the "activities" to which reference is made in that phrase are not "activities that may be authorised by reason of the fact of registration or in consequence of registration" but "activities that can be carried out under the registration of the occupation. His Honour held that "the activities being carried out under the registration are those professional activities that form part of the occupation" (at J [12]). The distinction his Honour drew, then, was between s 29(1) as requiring equivalence in specified functions which are authorised to be performed by registered persons, for example the statutory function of issuing building permits, and s 29(1) as requiring equivalence in the broader occupational activities that a person may undertake if registered.

7    His Honour concluded that on the proper construction of the section, it was the latter equivalence that was required. His Honour expressed that conclusion at J [73]:

For reasons that have been given, the phrase "activities to be carried out under each registration" refers to those activities which comprise the occupational activities for which persons may be registered. In the context of the terms of the Mutual Recognition Act and its stated purpose, s 29 is concerned with expressing the circumstances in which registration for an occupation in one State will be a sufficient basis to secure registration for the occupation in another State. The requirement is that the activities authorised under the occupational registration are substantially the same in each case. The focus is upon the activities that are covered under the registration not upon the statutory authority that registration consequentially confers to then sign certificates, issue permits or serve notices requiring compliance.

8    The primary judge summarised the Tribunal's approach to the application of s 29(1) of the Mutual Recognition Act at J [69]-[71]. His Honour observed that the Tribunal compared "functions in the relevant legislation that are authorised by the relevant registrations" (at J [69]). His Honour observed that "no part of the Tribunal's reasons involved a consideration of the activities that formed part of the occupation of a building surveyor or the nature and extent of those occupational activities which a registered building surveyor could undertake" (at J [70]). Rather, the Tribunal considered the "activities to be carried out under each registration" referred to the statutory authorities that could be exercised by a registered building surveyor under building legislation in each of the two States (at J [71]). In other words, "[i]t treated those words as referring to the authority conferred upon registered building surveyors by the scheme that regulated building activities rather than upon the activities of the occupation for which those persons were registered" (at J [71]). Consequently, the Tribunal failed to consider whether there was equivalence as to the "activities that were covered by the registration as a building surveyor" (at J [75]).

9    The primary judge concluded that the Tribunal's approach to the application of s 29(1) of the Act involved an error of law. He characterised that error (at J [84]) in the following manner.

The Tribunal's error was to misconceive the nature of its task under the legislation. In consequence, it inquired into the wrong factual matters. Instead of focussing on the activities that formed the extent of the occupation that was the subject of the registration as a building surveyor in each of the two States (being the activities conducted under the registration) it considered the consequential statutory authority that might be exercised by a person so registered (being activities that could be conducted under the building legislation by reason of the registration). In so doing, it committed a legal error.

10    The Authority contends that the primary judge erroneously held that "the activities authorised to be carried out under" a registration within the meaning of s 29(1) of the Mutual Recognition Act are not to be identified by reference to the activities that a person who holds that registration is authorised to carry out under legislation in force in the State or Territory in which the registration is held. Thus, the Authority contends, the primary judge also erroneously held that the Tribunal erred in law or failed to carry out its statutory task by comparing the activities a registered building surveyor is authorised to carry out under legislation in Western Australia and Victoria and determining, on the basis of that comparison, whether or not the occupation of building surveyor in Western Australia is equivalent to that occupation in Victoria.

11    As there is no dispute that the Tribunal approached the application of s 29(1) in the manner the primary judge described in his reasons for decision, the outcome of this appeal turns on whether, as a matter of statutory interpretation, the Tribunal correctly approached its statutory function of reviewing the Authority's decision that the occupation "Building Surveyor – Unlimited" in Victoria "is not an equivalent occupation" to "Building Surveying Practitioner Level 1 (Individual)" in Western Australia. The particular question raised by the appeal is whether the primary judge erred in concluding that the Tribunal misconceived the nature of the factual enquiry that s 29(1) of the Mutual Recognition Act mandates for the purpose of evaluating whether "activities authorised to be carried out under each registration are substantially the same". For the reasons that follow his Honour did not err in reaching that conclusion.

Registration required for the relevant occupations

12    The sections of the Victorian and Western Australian building legislation that provide that the occupation "building surveyor" may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification, are not confined to s 169 of the Building Act (Vic) and ss 17 and 18 of the Registration Act (WA), as was suggested in Yousefi and Victorian Building Authority [2018] AATA 3542 (at [27]) and adopted by the Tribunal.

13    The Building Act (Vic) creates a number of offences relating to an unregistered person making representations that the person is registered as a building surveyor (ss 169-169B) and carrying out work as a building surveyor (s 169D). The Building Act (Vic) makes provision for applications to be made to the Authority for registration as a building surveyor (ss 170-170D). The Authority must register an applicant as a building surveyor if the Authority is satisfied of certain matters including that the applicant either: (i) holds the prescribed qualifications for the registration; or (ii) unless the regulations otherwise provide (which they do not), holds a qualification that the Authority considers is, either alone or together with any further certificate, authority, experience or examination equivalent to a prescribed qualification (s 171(1)(a)).

14    The Building Regulations (Vic) prescribe two classes of building surveyor: unlimited and limited (Sch 9, Pt 2, para 2). The prescribed qualifications for the class of building surveyor (unlimited) are: (a) the successful completion of a Bachelor of Building Surveying from Homesglen Institute or Victoria University; and (b) at least 3 years practical experience.

15    Section 169D of the Building Act (Vic) provides (notes omitted):

169D    Offence to carry out work as building surveyor unless registered

(1)    A person must not carry out work as a building surveyor unless—

(a)    the person is registered under this Part as a building surveyor; and

(b)    the person's registration authorises the person to carry out that work.

(2)    For the purposes of this Act, carrying out work as a building surveyor includes—

(a)    carrying out functions as a municipal building surveyor; and

(b)    carrying out work or functions as a private building surveyor; and

(c)    carrying out any functions conferred on a building surveyor or relevant building surveyor under this Act or the building regulations or under any other Act or regulations.

(3)    Subsection (1) does not apply to a person who is authorised under this Act or the building regulations to carry out work on behalf of a building surveyor.

16    The various terms "municipal building surveyor", "private building surveyor" and "relevant building surveyor" are all defined in the Building Act (Vic) and "building surveyors" who meet those descriptions have certain functions and powers conferred on them under the provisions of that Act. These provisions suggest that "carrying out work as a building surveyor" (emphasis added) as an occupation for which registration is required in Victoria extends beyond carrying out functions as conferred on a municipal building surveyor, private building surveyor, or relevant building surveyor under the Victorian legislation. That is, s 169D makes it clear that carrying out work as a building surveyor "includes" carrying out those functions, but that is manifestly not an exhaustive description of the "work as a building surveyor" in Victoria because a building surveyor may carry out work other than as a municipal building surveyor, private building surveyor or in the performance of a function conferred under the legislation.

17    The Registration Act (WA) makes provisions for applications to be made to the WA Building Services Board for registration as a "building service practitioner" or "building service contractor" in a class prescribed by the regulations (ss 9, 12-16). Two such classes are 'building surveying practitioner level 1' (reg 6(1)(ba)) and 'building surveying contractor level 1 (company)' (reg 6(2)(dc)). A "building service practitioner" is defined in s 3 of the Registration Act (WA) as a person registered under s 17. The Board must register an applicant as a building service practitioner (or contractor) if satisfied that the application has met certain criteria including, in the case of a building service practitioner, holding the prescribed qualifications and experience (ss 17, 18). Subject to that Act, registration in a class of building service practitioner entitles a person who is registered as a building service practitioner to use a title prescribed by the regulations for that class of practitioner (s 10) and, in the case of a building service contractor, to carry out "prescribed building services" (s 11). The term "prescribed building service" means a building service that is prescribed by the regulations (s 3). The relevant prescribed building services are "building surveying work level 1 as the person issuing a compliance certificate" (reg 4(ba)).

18    The Registration Act (WA) also creates a number of offences relating to using the title (building surveying practitioner level 1), claiming that a person is a registered as a building surveying practitioner (or company) level 1, or advertising to carry out or carrying out building surveying work level 1 unless registered or entitled to carry out that work (ss 4-7).

19    Regulation 28D prescribes the qualifications for various categories of building surveying practitioner. In the case of a building surveying practitioner level 1, the prescribed qualifications were as follows (endnotes omitted):

…

Set 1 applied to all registrations from 1 July 2013, while Sets 2, 3 and 4 applied to registrations until 30 June 2013, to all registrations of certain eligible persons and to all renewals of registrations.

20    It follows that the relevant comparison is between Building Surveying Practitioner Level 1 (Individual) (WA) and Building Surveyor – Unlimited (Vic). The requirements in each State, as to the qualifications and experience necessary for registration in the relevant occupations, are similar.

Functions under the building legislation for the registered occupations

21    In Victoria, in addition to regulating registration for the occupation "Building Surveyor – Unlimited", the Building Act and Building Regulations (Vic) regulate building work in that State. In Western Australia, building work is regulated separately under the Building Act 2011 (WA) and Building Regulations 2012 (WA). The Building Act and Building Regulations (Vic) confer certain powers and functions on a person who is a registered Building Surveyor – Unlimited. Likewise, the Building Act and Building Regulations (WA) make provision for a person who is a registered Building Surveying Practitioner Level 1 to perform certain functions.

22    It is not necessary to undertake a detailed analysis and comparison of the Building Act and Regulations (Vic) and Building Act and Regulations (WA). The approach to regulation of the building industry in each State is similar but not uniform. As a consequence, the powers and functions of the relevant occupations are different under the building legislation in each State. However, in the exercise of the powers and the performance of the functions under the legislation in each State, the work (activities) carried out can broadly be described as "work as a building surveyor".

23    In Victoria, a person registered for the occupation of "Building Surveyor – Unlimited" may (as a municipal building surveyor or appointed private building surveyor) issue building permits (Pts 3 and 6); inspect building works during and upon completion of those works and give directions to fix non-compliant work (Pt 4); and issue occupancy permits at the conclusion of the building works (Pt 5). In Western Australia, a separate "permit authority" has the statutory power and function to issue building and occupancy permits (Pts 2 and 4). Inspections during building works are also regulated in a different manner (s 36(1); regs 26-29). A permit authority cannot issue a building permit unless a certificate of design compliance has been issued and cannot issue an occupancy permit unless a certificate of construction compliance has been issued. Certificates of design compliance and construction compliance must be signed by a "building surveyor", here, relevantly, a person registered in the occupation Building Surveying Practitioner Level 1 (Individual). Therefore, in general terms, in each State "building surveyors" perform functions that involve verifying that the plans and specifications of buildings the subject of an application for a building permit conform to the applicable building standards and that buildings the subject of a building permit are constructed in accordance with the plans, specifications and applicable building standards.

The parties' submissions

24    In reliance on Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence [2000] FCA 900; (2000) 100 FCR 255 at [68] (French J), the Authority contends that "determining whether the activities authorised to be carried out under each registration are substantially the same … is a judgment to be made by reference to the terms and statutory context of the registration in each State". The Western Australian and Victorian legislation set out, in detail, so the Authority contends, the activities that a registered building surveyor is authorised to perform in each State. The Authority submits that the distinction the primary judge drew, between activities that may be authorised by reason of the fact of registration and activities that are authorised in the sense that they may be performed under the registration of the occupation is unsound and wrong. The Authority submits that distinction invites decision-makers to ignore the statutory powers and functions that are conferred on the holders of a particular registration, and these form part of the "statutory context" of that registration. The Authority also contends that the distinction introduces vagueness and uncertainty into the analysis of whether the two registered occupations are "equivalent".

25    The Authority submits that the primary judge erroneously held (at J [18]) that the Mutual Recognition Act "applies the mutual recognition principle to occupations that are equivalent (see s 16(1)) not to equivalency in the statutory powers or authority that can be exercised by persons who are registered to carry out such occupations". The Authority submits that, in reaching that conclusion, the primary judge relied on Medical Board (Qld) v Renton [2006] FCA 947; (2006) 152 FCR 566 and Board of Professional Engineers of Queensland v Gardner [2021] FCA 564 (at J [20]) and that these authorities, properly understood, do not support his approach.

26    The essence of Mr Cau's submissions in the appeal are that the primary judge made no error for the reasons he gave in his judgment. Additionally, Mr Cau submits, by reference to Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 268 CLR 168 (at [155] per Edelman J), which referred to the text Taking Rights Seriously (Harvard University Press, 1977) by the late Prof Ronald Dworkin, that the notion of "equivalent occupations" is the key concept within the mutual recognition principle. That is, the principle necessitates a focus on a general approach to be taken when comparing the occupations across States. Mr Cau submits, in reliance on Sande v Registrar, Supreme Court (Qld) (1996) 64 FCR 123 (at 127-128) and Renton (at [23]), that the Mutual Recognition Act should be applied in a common-sense manner with regard had to the substance of the matter and to substantial equivalence of occupation not substantial equivalence after a detailed analysis of the specific aspects of the legislative schemes in each State.

What are the "activities" to be taken into account for the "substantially the same" enquiry?

Applicable principles of statutory interpretation

27    While the analysis of the meaning of a provision in a statute or legislative instrument starts and finishes with the text, the text must be considered in context and having regard to the legislative purpose: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). Where different interpretations are open, the interpretation that would best achieve the purpose or object of the Act is to be preferred to each other interpretation: Acts Interpretation Act 1901 (Cth), s 15AA. To that end, material not forming part of the Act that is capable of assisting in the ascertainment of the meaning of the provision to be considered may be taken into account, either to confirm the ordinary meaning of the provision or to determine the meaning in cases where meaning is ambiguous, obscure, absurd or unreasonable: Interpretation Act, s 15AB.

28    In CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) summarised the "modern approach to statutory interpretation" as follows:

[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd [(1986) 6 NSWLR 363 at 388], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

Context and purpose of the Mutual Recognition Act

29    The origin and purpose of the Mutual Recognition Act and the framework of Pt 3 were considered and explained in Lawrence at [12]-[29] (French J), [89]-[107] (Lee J), [128]-[130] (Carr J, in dissent) and Andriotis at [2]-[7] (Kiefel CJ, Bell and Keane JJ), [54]-[57] (Gageler J), [105]-[119] (Nettle and Gordon JJ) and need not be repeated.

30    In summary, the Act originated out of a desire to establish a national scheme for the mutual recognition of regulatory standards for goods and occupations within Australia. Its principal objective was to remove artificial barriers to interstate trade in goods and the mobility of labour caused by regulatory differences among Australian States and Territories. The Act was passed pursuant to the power conferred on the Commonwealth under s 51(xxxvii) of the Constitution to make laws with respect to matters referred to the Commonwealth Parliament by State Parliaments.

31    Consistently with its origin, s 3 identifies the principal purpose of the Act as the enactment of legislation authorised by the Parliaments of the States under s 51(xxxvii) of the Constitution "for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia". In an amendment made after the Authority's decision under review, s 3A was added to the Act. That section affirms that the purpose of the Act is "to promote the goal of freedom of movement of goods and service providers in a national market in Australia" and states that "Part 3 provides for individuals who are registered for an occupation in one State to be registered for, and carry on the activities of, an equivalent occupation in a second State" (emphasis added).

32    As Kiefel J observed in Renton at [27], "[t]he objective of mutual recognition is to allow the legal entitlement to carry on an occupation in one State to be recognised and the like legal entitlement for an equivalent occupation conferred in the second State". Of course, it is not mutual recognition for the sake of recognition. The underlying objective is to facilitate mobility of labour and the economic benefits that flow from removing barriers to movement of labour between locations within Australia. Thus, mobility of labour forms part of the wider objective of promoting freedom of movement of goods and service providers in a national market in Australia: Andriotis at [3] (Kiefel CJ, Bell and Keane JJ), [55] (Gageler J), [105] (Nettle and Gordon JJ). Part 3 of the Act gives effect to the objectives of mutual recognition with respect to labour or "occupations" that are regulated and require registration.

33    Section 16(1) provides that the mutual recognition principle "as applying to occupations that are equivalent" is as set out in Pt 3. The focus of the provisions dealing with the entitlement to carry on an equivalent occupation is on registration for an occupation in the first State and registration for the equivalent occupation in the second State (ss 16(2), 17(1), 19(1)).

34    Section 20(1) provides that a person who lodges a notice 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)(c) provides that a local registration authority may refuse the grant of registration if 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.

35    Section 29(1), set out earlier in these reasons, deals with the circumstances in which an occupation in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State. As the primary judge observed, the focus of the provisions of Pt 3 is on registration for an occupation. Therefore, in context, the relevant phrase in s 29(1) is to be read as "activities authorised to be carried out under each registration for the occupation".

36    Absent the contrary intention, "occupation" is defined in s 4(1) as:

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.

37    Absent the contrary intention, "registration" is defined in s 4(1) to include "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". It follows that the phrase "authorised … under each registration" is to be construed in a context in which the definition of "registration" includes any form of authorisation of a person required by or under legislation. Further, "activities … to be carried out" is to be construed in a context in which the definition of "registration" includes forms of authorisation for carrying on an occupation. These are all textual indications that the phrase "activities authorised to be carried out" alludes to activities to be carried out under an authorisation for carrying on an occupation. That is, the word "activities" is linked to carrying on an occupation for which an authorisation is required.

38    As the primary judge observed at J [7]:

It may be noted that the provision applies where there is a registration requirement for an occupation. In such cases, equivalency (and therefore the right to registration in a second State based upon registration in another) depends upon whether the activities that can be carried out under the registration of the occupation are "substantially the same". There are, of course, different forms of regulation by which similar authority to carry out an occupation may be conferred upon registered persons. Some statutory schemes regulating occupational activities express in broad terms the nature and extent of the relevant authority to undertake particular occupational activities that is conferred by registration. Other schemes may contain a detailed description of the activities that comprise the occupation that may be carried out by registered persons. Despite such differences, the schemes may, in substance, authorise the same activities.

39    Further, as the primary judge also observed (at J [11]-[12]), there is a distinction between activities that are permitted to be carried out under the registration for an occupation and activities (or functions or powers) that are permitted to be carried out by reason of the fact of registration or in consequence of registration. The primary judge illustrated the distinction by reference to a registered general medical practitioner authorised in one State, but not another, to issue a certificate under a statute. The primary judge said the certification power was in consequence of registration, but formed no part of the registered occupation or the activities of a general medical practitioner conducted under that registration: at J [11]-[12]. We agree with the primary judge that such a distinction can be drawn.

40    The relevant phrase in s 29(1) is also to be read in the context that s 17(2) draws an evident distinction between, on the one hand, "registration" as an authorisation of a person required by or under legislation for carrying on an equivalent occupation and, on the other, laws that regulate the manner of carrying on an occupation. 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, amongst other things, apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State. Laws that regulate the manner of carrying on an occupation are laws that operate after or by reason of the fact of registration for an occupation. Therefore, laws that regulate the manner of carrying on an occupation cannot inform an enquiry into the question of whether a person is entitled to registration by operation of the mutual recognition principle: Andriotis at [16], [33]-[36] (Kiefel CJ, Bell and Keane JJ), [73]-[79] (Gageler J). Laws that regulate powers or functions conferred on a person registered for an occupation in a State fall into a similar category as laws that regulate the manner of carrying on an occupation because in each case the applicable laws operate after or by reason of the fact of registration.

41    An example with a closer analogy to the facts of the present case might further assist to illustrate the significance of the distinction. Assume a person registered for the occupation of an electrician in State A applies to be registered for the equivalent occupation of electrician in State B. In State A, an electrician is empowered to issue a certificate that electrical work complies with the applicable legislation regulating that work in State A. Based in part on that certificate, a government authority then has power to issue a permit that allows the works to be connected to the electricity grid. In State B, a registered electrician is empowered both to issue a certificate of compliance and the permit that allows the works to be connected to the grid. In each case, the activities undertaken in performance of the electrical work must conform to the requirements of each State's legislation regulating electrical work. The issue of a certificate in State A and a certificate and a permit in State B are functions or powers conferred on a registered electrician by reason of registration for the occupation of electrician. In neither State is the registration for the occupation dependent on the electrician's ability to issue a certificate or permit. Registration for the occupation is based on the electrician's qualifications to undertake the occupation of an electrician. A comparison between the legislation in State A and that in State B regulating the manner in which electrical works are carried out and certified will not assist to identify the activities authorised to be carried out under the registration for the occupation (electrician). That is so irrespective of whether the legislation regulating registration for the occupation is contained in separate or the same legislation that regulates the manner of carrying on the occupation. The certification and permit-issuing legislative functions are ancillary to the activities of the occupation of electrician. These are not functions under a registration for an occupation. These are functions of registered electricians under legislation regulating electricity works.

Judicial consideration of the Mutual Recognition Act

42    The primary judge observed (at J [10]) that in a decision of the Tribunal reported as Re Rowe and New South Wales Police Service (1997) 47 ALD 442 at 444 the determination of the equivalence of occupations in the application of s 29(1) was said to involve five steps. They were: (1) identifying the occupation in the first State; (2) identifying the activities authorised to be carried out under the registration in the first State; (3) identifying the occupation in the second State; (4) identifying the activities authorised to be carried out under the registration in the second State; and (5) comparing the activities authorised to be carried out under each registration. In Lawrence (at [68]), French J described the Re Rowe five-step process as "helpful". Notwithstanding its faint endorsement in Lawrence, the five steps are of no real assistance in determining the question of statutory interpretation raised in this appeal because, as the primary judge noted (at J [11]), the five steps do not assist to identify what is meant by "activities authorised to be carried out under each registration".

43    Although the relevant question of statutory interpretation under consideration was different, the Full Court in Lawrence made a number of observations about the Mutual Recognition Act and its interpretation that are relevant to the question for determination in this appeal: Lawrence at [68] (French J), [105]-[107] (Lee J), [154] (Carr J, in dissent, but not on the relevant point). These were identified and set out by the primary judge: at J [13]-[14], [16]. They included the following passage from the reasons of French J 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. The passage adopted by the Tribunal in its 1997 decision in Re Rowe is a helpful approach to the application of s 29(1). But neither the terms of s 29(1) nor its application as explained in Re Rowe authorise the kind of inquiry which the Board would have the registration authority in the second State undertake, even if it were not precluded by s 21(4). In my opinion the Tribunal did not err in this respect and the second ground of appeal must fail. (Emphasis added.)

The Authority places particular reliance on the part of the above extract that is emphasised.

44    The primary judge observed (at J [15]), correctly with respect, that implicit in the description in Lawrence of the nature of the enquiry under s 29(1) by French J (at [68]) and Lee J (at [105]-[107]) "is a focus upon the underlying activities to be undertaken as part of the occupation in respect of which registration is required. It looks to the activities that comprise the registered occupation". We also agree with the further observation made by the primary judge (at J [17]) that "to the extent it deals with the issue, the decision in [Lawrence] points to s 29(1) requiring a comparison between the types of activities carried on as part of the occupation being regulated (which may or may not be detailed in the relevant legislation) rather than a comparison between the nature and extent of authority conferred by legislative provision upon those whose are registered".

45    As already mentioned, the Authority places reliance on the observation of French J in Lawrence (at [68]) that assessing equivalence under s 29(1) is "a judgment to be made by reference to the terms and statutory context of the registration in each State". The Authority also relies on the observations of French J (at [64]) to the effect that the question of "what is the occupation for which [a] person is registered in the first State" is "to be answered by reference to the terms of the 'registration' in the first State informed by or read with the statutory provisions under which such registration is effected". It also relies on the observations of Lee J (at [106]) that the Mutual Recognition Act "assumes that a system established pursuant to legislation enacted to regulate an occupation necessarily will define the occupation to which the regulatory system applies and provide a ready template for determining whether an occupation carried on in another State is equivalent to that occupation". The Authority submits that the statement by the primary judge at J [18] that the Act "applies the mutual recognition principle to occupations that are equivalent (see s 16(1)) not to equivalency in the statutory powers or authority that can be exercised by persons who are registered to carry out such occupations" did not accord with these statements of principle in Lawrence.

46    That criticism of the primary judge's reasons is misplaced. The focus of the passages from Lawrence is the "terms and statutory context of the registration". The focus is not the terms and statutory context of functions a person is authorised to perform under legislation by reason of the fact of registration. Put another way, Lawrence is not authority for the proposition that part of the terms and statutory context of the registration includes functions performed by reason of registration for the occupation as opposed to activities carried out under the registration for an occupation. Nor is it authority for the proposition that s 29(1) calls for a comparison between the legislative functions conferred (as part of a statutory scheme regulating some other activity, that is, not regulating registration for the occupation) on a person registered for an occupation in each State. It is the terms and statutory context of the registration that are to be used as sources of information for the purpose of identifying the "activities authorised under each registration".

47    As already noted, the Authority submits that, properly understood, Renton and Gardner, upon which the primary judge relied in interpreting s 29(1), do not support his Honour's interpretation. This is what the primary judge said of these authorities in this context:

21    The earlier statement in Renton at [23] by her Honour that the approach in Re Rowe had been endorsed in Board of Examiners v Lawrence must be understood in the context of the above statements. It is the identification of the professional activities that may be carried out based upon the relevant authorisations that must be the subject of the comparison, not the extent to which there are differences between the statutes. The question is not whether the statutory consequences of carrying out those activities are the same or there are differences in the form of regulation. The focus is on the occupational activities that are authorised.

22    In that context, it is well to note that French J and Lee J each described the approach in Re Rowe as "helpful". Their Honours did not adopt that approach as a complete expression of the way in which the relevant inquiry must be undertaken. The statement in Re Rowe is not to be understood as a replacement for the relevant inquiry which was, with respect, properly expressed by Kiefel J in Renton. On the basis of Renton, as followed in Gardner, it should be concluded that the relevant inquiry concerns instances where it is registration that authorises persons carrying out the activities of a particular profession or occupation and directs attention to whether those occupational activities as authorised to be undertaken by the registrations are equivalent. Further, where those occupational activities are not evident from the terms of the legislation then the comparison shall be undertaken by considering those activities usually associated with the occupation, a matter that may require evidence.

48    Renton concerned a person registered for the occupation medical practitioner in New South Wales who had sought registration for the occupation "intensivist" in Queensland. Neither the New South Wales nor Queensland legislation listed the activities usually associated with the professions in question. Kiefel J reasoned (at [32]) that the activities "must be taken to be the activities usually associated with the profession which is the subject of the registration" and "[i]n some cases evidence may be necessary to identify those activities". The Authority sought to distinguish Renton on the ground that, unlike in this case, the legislation under consideration in Renton did not specify the activities that were authorised by the relevant registrations. The Authority submits, in effect, that in Gardner Logan J recognised the limits of Renton. It refers to his Honour's observation (at [19]) that Renton was not "a charter for the tendering of much evidence as to the activities which were undertaken in [each State by a person registered for the occupations in each State]". It submits, drawing on what Logan J said at [26], that "the assessment of whether two occupations are equivalent 'ought ordinarily to emerge just from a consideration of exactly what in terms of the legislation is the occupation to which the registration regime applies'" (the Authority's emphasis). It refers to the "morass" of evidence before the Tribunal which compared the various educational prerequisites and which, in his Honour's opinion, distracted from the governing legislation.

49    The Authority observes that in the present case there was no "morass" of evidence before the Tribunal. Nor would such evidence have assisted the Tribunal in making its decision. The Authority submits that this was not a case in which the occupational activities were not evident from the terms of the legislation. These, it submits, are listed in the applicable Western Australian and Victorian Acts and Regulations.

50    The Authority's submission overstates, if not misrepresents, the significance of the primary judge's observations about Renton and Gardner. The primary judge cited Renton and Gardner at J [21]-[22] for the purpose of placing the apparent endorsement of Re Rowe by Kiefel J (at [23]) into context. The primary judge's summary of the propositions for which Renton and Gardner stand (at J [20]) was not challenged in the appeal. The conclusion that the primary judge reached (at J [21]) was that "[i]t is the identification of the professional activities that may be carried out based upon the relevant authorisations that must be the subject of the comparison, not the extent to which there are differences between the statutes" says nothing about the source of the information to be used for that purpose. As his Honour earlier observed (at J [17]) that "may or may not be detailed in the relevant legislation". The primary judge relied on Renton and Gardner for the proposition that whatever may be the source of the information, the comparison to be undertaken is between activities associated with the occupation, not between statutory functions. That reasoning is sound. It leaves open, correctly with respect, the possibility that legislation establishing the requirement for registration for an occupation may or may not be a source of information from which to identify the relevant activities.

51    In any event, the meaning of s 29(1) of the Mutual Recognition Act is a question of law. The primary judge's interpretation is either correct or not as matter of law. If his interpretation is ultimately correct, any error in his process of reasoning is neither here nor there.

Proper construction of section 29(1) of the Act

52    In our view, the primary judge's interpretation of the phrase "activities authorised to be carried out under each registration" in s 29(1) of the Mutual Recognition Act was correct. The "activities authorised to be carried out" are the activities of the occupation. These are the activities that are authorised to be carried out under a registration for that occupation. In Renton, Kiefel J used the expression "activities associated with the [occupation]" (emphasis added) to capture the same concept.

53    The distinction the primary judge drew between "activities" of an occupation authorised under a registration conferred by legislation regulating registration for that occupation and "functions" authorised by reason of the fact of registration for an occupation under legislation regulating an industry associated with that occupation was also correct. The purpose of Pt 3 of the Mutual Recognition Act would be undermined if s 29(1) required a comparison between the manner in which industries associated with an occupation (here, building and construction) are regulated in the respective States. Construing s 29(1) so as to require or mandate a comparison to be undertaken between the functions of a registered occupation under legislation regulating an industry in each State would be to erect a barrier to mobility of labour the Act was intended to remove. Put another way, the primary judge's construction of s 29(1) promotes the purpose or object of the Act whereas the construction for which the Authority contends, and that the Authority and Tribunal evidently applied, does not.

54    That is not to say that the statutory functions of a registered occupation under legislation regulating an industry in each State are completely irrelevant to the s 29(1) enquiry. An examination of those functions may or may not assist to identify the "activities [of the occupation] authorised to be carried out under each registration". For example, in this case, the fact that a Building Surveyor – Unlimited is authorised to issue a building permit under the Building Act (Vic) and Building Regulations (Vic) may provide information from which to identify the activities of that occupation.

55    The primary judge referred (at J [24]-[25]) to a comprehensive statement submitted to the Tribunal on Mr Cau's behalf which specified the certificates of registration he held in Western Australia and which included submissions to the Tribunal which dealt with the work it was said he was "empowered" to undertake under his registrations. The submissions referred to cl 4A(2) of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), which provides that "building surveying work" is prescribed for the purposes of the definition of "building service" in s 3 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and cl 4A(1), which defines "building surveying work" to mean:

(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.

56    As the primary judge observed at J [26], the submissions went on to refer to the provisions of the Building Act (WA) that required a certificate of design compliance by a registered independent building surveyor to be included with certain applications for approvals under that Act and how those applications must be made to a permit authority.

57    What may be implicit from the functions under legislation regulating an industry in one State may be explicit in legislation regulating the occupation or industry in another State. It may be inferred, as its appears the primary judge did (at J [4]), that "[u]nderlying both regulatory systems is the evaluation by building surveyors of compliance with the National Construction Code and other standards concerning safety, accessibility and efficiency in building design and construction".

58    The concept that underpins Pt 3 of the Mutual Recognition Act, as was recognised in Lawrence, is that qualification for an occupation in one State is taken to be qualification for an equivalent occupation in another State. The word "occupation" is defined by reference to those occupations that may only be carried on by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification. Occupation is also defined by reference to "occupation, trade, profession or calling of any kind". That definition is describing occupations involving the performance of work (carrying out activities) for which a registered person is qualified. A person registered for an occupation is taken to be qualified to perform all work (activities) of that occupation. The mutual recognition principle removes the need to meet the specific qualifications to be registered to carry out the activities of an occupation in each State in which registration is sought. The principle that like-for-like qualifications be mutually recognised entails that the activities of the occupation for which a person is qualified are also like-for-like (substantially the same). Thus, the mutual recognition of qualifications is another indication that the primary judge's construction of s 29(1) is correct.

59    The Authority's construction of s 29(1), and the focus by the Authority and the Tribunal on the different nature of the functions of the registered occupations authorised under the building legislation in Western Australia and Victoria, comes very close to the position that due to the differences in those functions a person registered as a Building Surveying Practitioner Level 1 in Western Australia is not qualified to perform the functions of a person registered as a Building Surveyor – Unlimited in Victoria. For instance, the Tribunal, by adopting the reasoning of the member in Yousefi (at para 42), took into account that "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" (original emphasis). The Tribunal also took into account the fact that "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" and considered that "the differences are too substantial to be resolved through the imposition of conditions" (original emphasis). That approach embraces a comparison of qualifications to perform the specific statutory functions in each State that invites an assessment of the qualifications for the registered occupation in Victoria that is contrary to the purpose of Pt 3. It also invites an analysis of whether a person by virtue of registration for an occupation in the first State is, in fact, qualified to carry out the statutory functions of a registered occupation in the second State. That is the approach that was considered and rejected in Lawrence.

60    The textual indications to which the primary judge referred, as well as others referred to earlier in these reasons, also support the primary judge's interpretation of s 29(1) in the context of the Act as a whole.

61    It follows that for the purpose of undertaking the requisite comparison the relevant phrase in s 29(1) should be understood to mean "activities of the occupation authorised to be carried out under each registration for the occupation".

Conclusion

62    The primary judge's construction of s 29(1) of the Mutual Recognition Act was correct. His Honour was also correct to conclude that the Tribunal had misconceived the nature of its task and, in consequence, inquired into the wrong factual matters. The Tribunal failed to inquire into the "activities of the occupation". Instead, it focussed on and inquired into the functions of the registered occupations under legislation regulating the industry (building) associated with those occupations. As the primary judge held, in so doing, the Tribunal erred in law.

63    The appeal should be dismissed with costs.

Associate:

Dated:    31 July 2023