FEDERAL COURT OF AUSTRALIA

Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence [2000] FCA 900

TRADE AND COMMERCE– Mutual Recognition Act  - purpose and operation of Act – mutual recognition principle – entitlement to registration upon lodgment of application with local registration authority – immediate entitlement upon expiry of time limit for decision – meaning of “immediate entitlement” – failure by local registration authority to decide application – review by Administrative Appeals Tribunal – function of Administration Appeals Tribunal upon review – abuse of process – collateral purpose in application – imposition of conditions upon registration – declaration of non-equivalence of occupations.

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – review of decision of local registration authority – whether reviewable decision – abuse of process – whether application to Tribunal frivolous or vexatious – whether statutory power or implied incidental power to deal with abuse of process – nature of case before Tribunal – imposition of conditions upon certificate of competency – declaration of non-equivalence – health, safety and environmental considerations – qualification upon mutual recognition principle.

CONSTITUTIONAL LAW – referral of powers – adoption of law made pursuant to referral – nature of such law as a law of the Commonwealth.

Mutual Recognition Act 1992 (Cth) s 19 s 43, s 17, s 4, s 21, s 23(1)(c), s 34(1) s 28, s 31, s 3, s 20, s 23(2), s 25, s 26, s 27, s 29, s 32, s 34(2), s 39

Mines Safety and Inspection Act 1994 (WA)

Mines and Works Inspection Act 1920 (SA) s 4, s 18,

Mines Regulation Act 1946

Mines Safety and Inspection Act 1994 (WA)

Mutual Recognition (Western Australia 1995 Act (WA) s 4(1)

Mutual Recognition (Western Australia) Amendment Act 1997  (WA)  (No 48 of 1997)

Mutual Recognition (Western Australia) Amendment Act 1998 (WA) (No 57 of 1998)

Administrative Appeals Tribunal Act 1975 (Cth) s 44, s 42B. s 3(3)

Federal Court of Australia Act 1976 (Cth) s 20(1A)

The Constitution s 51 (xxxvii)

K Nicolaodis, Mutual Recognition of Regulatory Regimes: Some Lessons and Prospects, Harvard Law School 1997 Jean Monnet Working Papers

M Bini, Australia’s Common Market: Mutual Recognition Legislation, Background Paper No 20 Parliamentary Research Service, Department of Parliamentary Library, November 1994

Wright, Mutual Recognition and the National Market for Goods (1993) 21 ABLR 270

Carroll, Mutual Recognition: Origins and Implementation (1995) 54 AJPA 35

Thomas and Saunders (ed) The Australian Mutual Recognition Scheme: A New Approach to an Old Problem, Centre for Comparative Constitutional Studies 1995

Impact of Mutual Recognition on Regulations in Australia: A Preliminary Assessment, Information Paper, Office of Regulation Review, 1997

Anderson, Reference of Powers by the States to the Commonwealth (1951) Ann Law Rev (UWA) 1

Lumb and Moens, The Constitution of the Commonwealth of Australia Annotated, Butterworths, 5^th Edition, 1995

Wynes Legislative, Executive and Judicial Powers in Australia, 5^th Edition, Law Book Company 1976

Harrison-Moore, Constitution of the Commonwealth of Australia, 2^nd Edition, 1910 (rep Legal Books 1997)

Thomson, Adopting Commonwealth Law: Section 51(xxxvii) of the Australian Constitution (1993) 4 PLR 153

Re Kavanagh (1995) 125 FLR 138 cited

Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 followed

R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 followed

Graham v Paterson (1950) 81 CLR 1 cited

Airlines of New South Wales Pty Ltd v New South Wales (1964) 113 CLR 1 cited

Sande v Registrar, Supreme Court of Queensland (1996) 134 ALR 560 cited

Re Rowe and New South Wales Police Service (1997) 47 ALD 442 considered

Re Cleary and Nurses’ Board of the Northern Territory  (1996) 41 ALD 395 disapproved

Re Williams and Australian Electoral Commission (1995) 38 ALD 366 approved

Attorney-General v Wentworth (1998) 14 NSWLR 481 discussed

Australian Postal Corporation v Matsuko (unrep Olney J, 14/5/96) cited

Director of Social Services v Chaney 47 FLR 80 cited

Chan v Minister for Immigration and Ethnic Affairs  (1989) 169 CLR 379 cited

Minister for Immigration and Ethnic Affairs v Guo (1990) 191 CLR 559 cited

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited

THE BOARD OF EXAMINERS UNDER THE MINES SAFETY AND INSPECTION ACT 1994 (WA) v QUENTIN DERRICK LAWRENCE

W 68 of 1999

FRENCH, LEE and CARR JJ

5 JULY 2000

PERTH

THE COURT ORDERS THAT:

1.         The appeal is dismissed. 

2.                  The applicant is to pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

French J:

Introduction

1                     Quentin Lawrence who holds a certificate as a mine manager in respect of coal mines under South Australian law has sought the award of a similar certificate under Western Australian law.  He says he is entitled to the Western Australian certificate by operation of the Mutual Recognition Act 1992 (Cth).  The Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) has declined to issue such a certificate on the basis that there are no coal mines in either South Australia or Western Australia and that the South Australian qualification is not a proper basis for the issue of a certificate of competency in relation to coal mines in Western Australia.

2                     Mr Lawrence applied to the Administrative Appeals Tribunal for a review of the Board’s decision.  The Tribunal granted him a First-Class Mine-Manager’s Certificate restricted to coal mines in this State.  The Board of Examiners has appealed to this Court against that decision and against the refusal of the Tribunal to make a declaration that the occupations of coal mine manager in South Australia and Western Australia are not equivalent.   It argues that Mr Lawrence is seeking to exploit the mutual recognition principle by using a qualification too easily obtained in one jurisdiction to acquire a like qualification in Western Australia with a view to obtaining a further like qualification in New South Wales.  This purpose was said to amount to an abuse of process which the Tribunal should not have entertained.  The want of any practical examination in relation to underground coal mines in South Australia was said to require a finding that there was no equivalence between the occupations of coal mine manager in that State and in Western Australia where there is a separate examination process.  The Tribunal, it was said, should also have used its powers under the Act to make a declaration, based upon considerations of health and public safety, that the two occupations are not equivalent.

3                     The case exemplifies tensions that arise in mutual recognition schemes generally whether between units in a federation or between nations.  Such schemes involve an effective transfer, at least in part, of regulatory authority from one jurisdiction, the home, to another, the host.  The recognition they require is of the equivalence or compatibility or, at least acceptability, of the home jurisdiction’s regulatory system.  Mutuality mandates reciprocal and simultaneous reallocation of authority.  Mutual recognition schemes involve the reconciliation of trade and regulatory objectives – K Nicolaodis, Mutual Recognition of Regulatory Regimes: Some Lessons and Prospects, Harvard Law School 1997 Jean Monnet Working Papers – www.law.harvard.edu/programs/JeanMonnet/papers.  Within that general rubric mutual recognition agreements affecting occupational qualifications may attract jurisdiction shopping which takes as a starting point the jurisdiction with the lowest registration requirements so that the standards of all host jurisdictions are effectively reduced to those of the lowest common denominator.  The application of national competition policy to the relaxation of some regulatory systems may further accentuate divergences between jurisdictions.  While this phenomenon may be a natural incident of mutual recognition arrangements, pending harmonisation or convergence of regimes, there are limits which can be imposed to mitigate its effects.  In the Australian system each jurisdiction reserves the right to regulate the manner in which any occupation is carried out. Conditions may be imposed upon recognition in particular cases to fine-tune equivalence by limiting the range of activities which are authorised pursuant to that recognition. And where considerations of public health or safety or environmental protection are concerned, there is a process which effectively allows an exemption from mutual recognition to be applied, albeit through the device of a declaration of non-equivalence of home and host state occupations.  Over and above these mechanisms, for which the Australian system provides, there will also be home jurisdictions wishing to ensure that they do not become the “weakest point of entry” in to the relevant profession –  Re Kavanagh (1995) 125 FLR 138 at 142 (Miles CJ, Gallop J agreeing) These general issues are reflected in the questions about the construction and application of the Mutual Recognition Act which this case presents to the Court.   

Factual Background

4                     Quentin Derrick Lawrence holds a “(Restricted) Mine Manager’s Certificate of Competency, First Class” issued on 21 May 1993 by the Board of Examiners for Mine Managers of South Australia.  The certificate was issued under the Mines and Works Inspection Act 1920 (SA) and Regulation No. 210 made under that Act.  It was expressed to be “restricted to coal mines”.  Prior to its issue, Mr Lawrence had been advised by a letter dated 6 April 1993 from the South Australian Board of Examiners that while the Board considered his educational qualifications to be sufficient it had resolved that his experience was not enough for him to be eligible for an unrestricted First Class Mine Manager’s Certificate. The Board cautioned him in its letter that, due to the unusual circumstances surrounding coal mining in South Australia, the Restricted Certificate might not be fully reciprocal with certificates in other States.  He was advised that an application for an unrestricted certificate would require, in addition to his current experience, a further three months practical (at the face) experience in an underground metalliferous mine and six months experience in a metalliferous mine in any or all of the fields of supervision and safety, mine planning, rock mechanics, tunnelling and mine ventilation.  In September 1995, he obtained a First Class Mine Manager’s Certificate of Competency (Metalliferous) in South Australia.

5                     Mr Lawrence is also the holder of a “First Class Mine Manager’s Certificate of Competency”, issued by the Board of Examiners of the Department of Minerals and Energy of Western Australia on 7 December 1994.  That certificate states that he has fulfilled the requirements for that certificate as prescribed in the Mines Regulation Act 1946 and Regulations.

6                     On 17 December 1997, on the strength of his South Australian qualification, Mr Lawrence lodged with the Department of Minerals and Energy in Western Australia an application for registration in Western Australia as the holder of what he referred to in the application as a “First Class Mine Manager’s Certificate of Competency for Coal Mines”.  The application was made by way of notification of the South Australian qualification pursuant to s 19 of the Mutual Recognition Act 1992 (Cth).  He advised in the notification that his First Class Mine Manager’s Certificate in South Australia was “Coal specific and restricted to coal mines”.  The notification was supported by a statutory declaration, witnessed by Robert Sydney Hopkins, an Assistant Director at the Department who, as it also happens, was Chairman of the Board of Examiners of its Mining Operations Division.  On 20 December 1997, Mr Lawrence wrote to the Board of Examiners for Mine Managers in South Australia seeking confirmation that his First Class Mine Manager’s Certificate from that State was restricted for coal mining.  On 15 January 1998, he received a reply from the Secretary of the Board of Examiners in South Australia stating that:

“There is only one coal mine in South Australia (Leigh Creek) and this is an open cut operation.  If these operations were extended to underground mining you would be entitled to be registered as a manager.”

7                     The Board of Examiners in Western Australia made no decision on the application for registration under the Mutual Recognition Act until 27 January 1998.  At that time Hopkins wrote to Mr Lawrence apologising for the delay incurred over the Christmas period in obtaining information from South Australia and New South Wales pertinent to his application for registration.  He assured Mr Lawrence that his WA First Class Certificate of Competency dated 7 December 1994 enabled him to carry on his normal occupation “at all existing mines in this State, should you apply for a Mine Manager’s position in Western Australia”.  The letter went on:

“As regards your enquiry about the WA First Class Mine Manager’s Certificate for coal mines, I advise that there are no underground coal mines in WA (and probably wont (sic) be in the foreseeable future) and thus there is no such occupation in this State for which to register.  All present WA coal mines are surface coal mines for which your WA First Class Certificate of Competency satisfies the legislative requirements of the new Mines Safety and Inspection Act and Regulations 1995.”

This advice amounted to a refusal of a Certificate of Competency applicable to underground coal mines although not expressed clearly and directly as such.

8                     On 4 February 1998, Mr Lawrence lodged an application, with the Administrative Appeals Tribunal, to review the Board’s decision.  There was evidently a telephone conversation that followed between himself and Hopkins on Thursday, 19 February 1998 which was referred to in a letter from the Chairman to Mr Lawrence dated 20 February.  In that letter it was recorded that the Board’s contention was that Mr Lawrence’s application under the legislation was invalid because he was a resident in Western Australia and already held a First Class Mine Manager’s Certificate of Competency issued by the WA Board of Examiners which would qualify him to be appointed as manager to any one of the mines in Western Australia.  The request that the Board recognise his South Australian Coal Mine Manager’s certificate was therefore unnecessary.  The letter went on to make the point that given there was no practical benefit to Mr Lawrence from the grant of the certificate relating to underground coal mines in Western Australia as there are no such coal mines in Western Australia, and given that he was otherwise qualified as the holder of a First Class Mine Manager’s Certificate, the Board regarded the application as unnecessary.  Hopkins made the further point that:

“…the Board is aware that recognition of the South Australian Coal Certificate by the West Australian authority is required by you to reinforce your case in the dispute with the NSW authority.  I repeated that the West Australian Department of Minerals and Energy and the Board of Examiners has no interest or intention of becoming involved in your dispute the New South Wales authority; further it would not be drawn into hypothesising whether, in the event that an underground coal mine was constructed in the future for which a First Class Coal Mine Manager’s Certificate was required, your coal mine qualifications would be accepted or not by some future Board of Examiners.”

The letter ended up by noting that they had agreed to disagree on their respective positions and agreed to leave the disagreement “to be arbitrated by the appropriate mechanism ie through appeal to the Administrative Appeals Tribunal”.

9                     On 6 January 1999, Hopkins wrote a letter to the Board of Examiners in South Australia which was in evidence before the Tribunal.  He stated the Western Australian Board’s position thus:

“(a)     Mr Lawrence has a Western Australian First Class Mine Manager’s Certificate (obtained by examination in 1994) which enables him to be the underground manager or pit superintendent of any mine in Western Australia.

(b)       That, should there be an underground coal mine developed in Western Australia in the foreseeable future, the Board of Examiners (Coal) would not recognise Mr Lawrence’s current qualifications and would require him to apply to the Board in the normal manner.”

The letter went on to ask the South Australian Board to clarify its position regarding certification for underground coal mining management and, in particular, asked:

“(i)      Has the Board ever examined any applicant to ascertain his or her competency to manage an underground coal mine?

(ii)       On what basis can the Board determine Mr Lawrence’s competency to manage an underground coal mine?

(iii)      Were there any underground coal mines in South Australia in the past 20 years for which certificates of competency were required and are there any underground coal mines planned for the immediate future?”

10                  In a letter of reply, dated 16 February 1999, Mr R E Mathews, the Chief Inspector of Mines and Chairman of the Board of Examiners in South Australia, said:

“In response to the specific questions regarding Mr Q Lawrence, I wish to advise the following:

(I)        The Board, to the best of my knowledge has never examined an applicant to specifically ascertain his or her competency to manage an underground coal mine.  In South Australia, the applicant’s verified experience, personal references and comments from the person who examines the applicant in Mining Law, are considered by the Board when determining applicants’ eligibility.

(II)       Mr Lawrence submitted sufficient detailed and verified information on his coal mining experience and suitable references to the Board.  The NSW Coal Mining Qualification Board advised that Mr Lawrence had sufficient experience for a Coal Mine Managers Certificate (Attachment A)

            On 6 April 1993, the Board advised Mr Lawrence that he did not have sufficient experience to be eligible for a South Australian First Class Mine Managers Certificate.  However, the Board decided to advise Mr Lawrence he would be eligible for a First Class Mine Managers Certificate restricted to Coal Mines upon passing an examination in mining law.

            In their letter of 6 April 1993 to Mr Lawrence, the Board warned him “due to the unusual circumstances with coal mining restricted in SA, the certificate may not be fully reciprocal with certificates in other states” (Attachment B).

            It would appear that the Board was not aware of the requirements and processes of mutual recognition.

            On 20 May 1993, an Inspector of Mines examined Mr Lawrence and advised the Board that Mr Lawrence demonstrated he had satisfactory knowledge of SA’s mining law including knowledge of the Occupational Health, Safety & Welfare Act.

            Mr Lawrence was subsequently issued with First Class Mine Managers Certificate No 175 Restricted to Coal Mines.

            Under the Mines & Works Inspection Act 1920, “mine” means any place in, on, or under which any mining operation has been or is being carried on, “mining operation” means any operations carried on in the course of searching for or recovering any minerals, and “mineral” includes coal.

            There is only one coal mine in South Australia (at Leigh Creek) and this is an open cut operation.  If these operations were extended to underground mining, Mr Lawrence would therefore be entitled to be registered as the Manager.

            Because of changes to the Chair, membership and secretariat of the Board, I am unable to determine if it was the Board’s intention for Mr Lawrence to be entitled to manage both underground and surface coal mines in South Australia.

(III)      In both instances, the answer is No.”

11                  Following a hearing the Tribunal, on 25 June 1999, made a decision in the following terms:

“…the Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant is entitled to be granted a first class mine manager’s certificate by the Board of Examiners under reg 2.21 of the Mines Safety and Inspection Regulations 1995 (WA), subject to the condition that that certificate be restricted to coal mines of any kind, including underground coal mines and open cut coal mines, with effect from 17 January 1998.”

The Board of Examiners, established under the Mines Safety and Inspection Act 1994 (WA), has appealed against that decision.  Before turning to the grounds of appeal it is convenient to refer to the statutory scheme for mutual recognition, the relevant provisions of the Western Australian and South Australian statute law relating to the qualifications in question and the Tribunal’s decision.

Mutual Recognition Legislation – Origin and Purpose

12                  The Mutual Recognition Act 1992 was enacted by the Parliament of the Commonwealth in order to establish a national scheme for the mutual recognition of regulatory standards for goods and occupations within Australia.  Its principal aim was to remove artificial barriers to interstate trade in goods and the mobility of labour caused by regulatory differences among Australian States and Territories – Parl Deb H of R 3/11/92 p 2432. 

13                  A process of national consultation between July and November 1991 was promoted by a Commonwealth-State Committee on Regulatory Reform set up after the State Premiers’ Conference in 1990.  A Discussion Paper entitled “The Mutual Recognition of Standards and Regulations in Australia”, was released and seminars held in each capital city.  The Discussion Paper referred to the prospect that Australia might have more barriers to trade in goods and services between States and Territories than would exist between the member nations of the European Community.  Freedom in inter-state trade and mobility of labour and capital could not be achieved if regulatory environments across States and Territories permitted that prospect to eventuate.  Thus it was said:

“Mutual recognition of standards and regulations by all States and Territories has the potential to achieve these objectives.  Mutual recognition allows all regulations throughout Australia to co-exist while reducing the current adverse impacts of those regulatory differences.” Discussion Paper p 2

The results of the consultation process were considered by Premiers and Chief Ministers at a meeting in November 1991 and a formal agreement signed on behalf of the Commonwealth, the States and Territories on 11 May 1992.  The Mutual Recognition Act 1992 (Cth) was enacted following referrals of power by the Parliaments of New South Wales and Queensland to the Parliament of the Commonwealth to enable the enactment and amendment of legislation to provide for the recognition within each State and Territory of the Commonwealth of the regulatory standards adopted elsewhere in Australia regarding goods and occupations. 

14                  The Parliaments of New South Wales and Queensland, acting pursuant to s 51(xxxvii) of the Constitution, referred to the Parliament of the Commonwealth, each for a fixed period, matters which were defined in their referring Acts in terms of “the enactment of an Act in the terms or substantially the terms set out in the Schedule”.  The proposed Mutual Recognition Bill of the Commonwealth was scheduled in each case to the State referring Act.  The law passed by the Parliament of the Commonwealth pursuant to that referral was adopted by the other States and Territories and last by Western Australia.  In the case of Western Australia that adoption was effected by s 4(1) of the Mutual Recognition (Western Australia) 1995 Act (WA).  It was limited to the original Commonwealth Act and any amendments made to it before the State Act received royal assent (s 4(2)).  The Commonwealth Act as adopted is scheduled to the State Act.  The adoption took effect from the day on which the State Act commenced and ceased to have effect at the end of the termination day.  The termination day was defined in s 3(1) as 28 February 1998 or such earlier date as might be fixed by proclamation (s 3(2)).  So the Western Australian adoption of the Commonwealth Act was limited in subject matter to the terms of the Commonwealth Act as it stood when the adopting Act received royal assent and was subject to a sunset clause.  Nevertheless the State law has been twice extended – see Mutual Recognition (Western Australia) Amendment Act 1997 (WA) (No 48 of 1997) and Mutual Recognition (Western Australia) Amendment Act 1998 (WA) (No 57 of 1998).  The adoption of the Commonwealth Act continues in force until 28 February 2001.

15                  The history and implementation of the mutual recognition scheme in Australia is helpfully set out in M Bini, Australia’s Common Market: Mutual Recognition Legislation, Background Paper No 20 Parliamentary Research Service, Department of Parliamentary Library, November 1994 parts of which are reproduced in Mutual Recognition and the Reference Power (1998) 72 ALJ 696.  See also Wright, Mutual Recognition and the National Market for Goods (1993) 21 ABLR 270; Carroll, Mutual Recognition: Origins and Implementation (1995) 54 AJPA 35; Thomas and Saunders (ed) The Australian Mutual Recognition Scheme: A New Approach to an Old Problem, Centre for Comparative Constitutional Studies 1995; Impact of Mutual Recognition on Regulations in Australia: A Preliminary Assessment, Information Paper, Office of Regulation Review, 1997 and the Report of the Review Group on Mutual Recognition recently published by the Department of Prime Minister and Cabinet on its website. 

16                  The so-called lowest common denominator problem, applied to occupations was  supposed to be rectified by the concept of equivalence of occupations.  But occupations which are substantially the same in different States may attract different educational requirements.  The imposition of conditions upon reciprocal registration in order to achieve equivalence amounted to a modification of the requirements of the law in the home State and to that extent compromised the principle of mutual recognition –  72 ALJ at 709-710 and 712.  As will be seen also in s 31(2)(b) the Act seeks to strike a balance between the mutual recognition principle and considerations of public health and safety and environmental protection.

Referral of Matters – The nature of an adopted law under Placitum xxxvii

17                  The Mutual Recognition Act 1992 was passed pursuant to the power conferred upon the Commonwealth by s 51(xxxvii) of the Constitution.  By virtue of placitum xxxvii the Parliament of the Commonwealth has, subject to the Constitution, power 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 Parliament the matter is referred, or which afterwards adopt the law.”

In Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106, Deane and Toohey JJ described the operation of placitum xxxvii thus, at 216:

“Section 51(xxxvii) of the Constitution expressly contemplates that matters which the Constitution leaves with the States may be referred to the Parliament of the Commonwealth and may, when referred, be the subject of Commonwealth legislative power.”

The referral of a matter under placitum xxxvii confers a power to make laws with respect to that matter and not “…simply a power to enact a law in the form of a statute which is described and defined just as an act of parliament would be” – R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 224.  The “law” last mentioned in placitum xxxvii “…refers to the law made by the Parliament of the Commonwealth in pursuance of a reference of a matter” – ibid at 225.  There is an open question as to whether a reference, unlimited in time, is irrevocable – Graham v Paterson (1950) 81 CLR 1 at 25 (Webb J); R v Public Vehicles Licensing Appeal Tribunal at 226; Airlines of New South Wales Pty Ltd v New South Wales (1964) 113 CLR 1 at 53; Sande v Registrar, Supreme Court of Queensland (1996) 134 ALR 560 at 568 (Lockhart J).  There is no doubt however that a referral may be for a fixed period – Airlines of New South Wales Pty Ltd  at 38 (Taylor J, Kitto J agreeing at 30), 53 (Windeyer J).  See also Anderson, Reference of Powers by the States to the Commonwealth (1951) Ann Law Rev (UWA) 1 at 7-8; Lumb and Moens, The Constitution of the Commonwealth of Australia Annotated, Butterworths, 5^th Edition, 1995 at p 283; cf Wynes, Legislative, Executive and Judicial Powers in Australia, 5^th Edition, Law Book Company 1976 at p 171.

18                  The subject matter of the adoption contemplated by placitum xxxvii, is “the law”, that is a law for the peace, order and good government of the Commonwealth with respect to the matters referred by the Parliament of each State or States. What is adopted in such a case is a law of the Commonwealth which then extends to the adopting State by virtue of placitum xxxvii, as a law of the Commonwealth.  As Harrison-Moore said in the Constitution of the Commonwealth of Australia, 2^nd Edition, 1910, (rep. Legal Books 1997) at 486:

“…until the power is withdrawn, enactments of the Commonwealth Parliament thereunder must, it would seem, have the ordinary operation of federal laws and prevail over State laws inconsistent therewith.”

There is a question whether a Commonwealth law extending by adoption to a State, remains in force if amended by the Commonwealth for, after amendment, unless the amendment  is adopted by the State,  the Commonwealth statute would not answer the description of a law covered by  placitum xxxvii and therefore would not extend to the State.  In any event there has not been any amendment to the Commonwealth Act since its adoption in Western Australia at the end of 1995.   I respectfully disagree with the observation of Lockhart J in Sande at 568 that in the case of adoption the Commonwealth Act is provided “with the force of State law”.  This process it was said “…involves complementary legislation of the Commonwealth and the States, with the States adopting an act passed by the Commonwealth Parliament pursuant to the Territories power (s 122) or some other head of power.”  Spender J agreed with the reasons of Lockhart J, adding observations of his own which did not bear upon the passage cited above.  But the remarks about the nature of laws adopted pursuant to placitum xxxvii were obiter as that case involved the question of the Mutual Recognition Act in Queensland, which State had referred the matter of mutual recognition, defined by reference to the proposed Bill, to the Commonwealth.  The observation appears to have conflated the concept of adoption of a Commonwealth law under placitum xxxvii with adoption in the generic sense of mirror legislation as in the case of co-operative regulatory schemes – Lumb and Moen at 284; Anderson, “The State and Relations with the Commonwealth” 2 Ann Law Review (1951-3) p 1.  The correct view in my opinion is that placitum xxxvii operates to confer power on the Commonwealth to make laws extending in the first instance to referring States and thereafter to adopting States – Johnson, The Reference Powerin the Australian Constitution (1973) 9 MULR 42 at 62; cf Thomson, Adopting Commonwealth Law: Section 51(xxxvii) of the Australian Constitution (1993) 4 PLR 153 at 156.  

19                  The adoption of the Act by Western Australia extended its operation as a law of the Commonwealth to Western Australia and supported the investing of the Administrative Appeals Tribunal with authority to hear reviews of decisions of Western Australian registration authorities. By virtue of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), this Court has jurisdiction to hear and determine applications by way of appeal against the decisions of the Tribunal on questions of law.  Were the Mutual Recognition Act 1992 in its application to Western Australia not a law of the Commonwealth, then a serious issue would arise about the jurisdiction of this Court to entertain appeals against decisions of the Administrative Appeals Tribunal under that law.  There was no issue raised by the parties in this connection and in my respectful opinion it is not really open to debate that the Mutual Recognition Act as adopted by Western Australia under placitum xxxvii takes effect in Western Australia as a law of the Commonwealth.

Statutory Framework – The Mutual Recognition Act 1992

20                  The Mutual Recognition Act 1992 is expressed to apply to a State but only while it is a participating jurisdiction (s 5(1)).  The term “participating jurisdiction” has the meaning given to it by s 43 (s 4(1)).  By virtue of s 43 a participating jurisdiction includes:

“a State (other than a Territory) for which there is in force an Act of its Parliament that refers to the Parliament of the Commonwealth the power to enact this Act, or that adopts this Act, under paragraph (xxxvii) of section 51 of the Commonwealth Constitution…”

Subject to s 5 the Act binds the Crown in right of the Commonwealth and of each of the participating States (s 5(2) and s 7).  These provisions reflect the proposition set out above that the Act takes effect in both referring and adopting States as a law of the Commonwealth.

21                  Part 2 of the Act deals with goods.  Part 3 deals with occupations and in s 17 sets out what is called the “mutual recognition principle”.  That principle is expressed thus:

“17(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.”

22                  There is a number of terms defined in s 4(1) of the Act which are relevant for present purposes.  They are:

““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.”

23                  Division 2 of Part 3 deals with entitlement to registration and commences with s 19 which sets out the process of application or notification of a State registration authority:

“19(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.”

The other subsections of s 19 set out the required content of the notice and accompanying documents and are not material for present purposes.  Section 20 asserts that a person who lodges a notice under s 19 with the local registration authority:

“…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 21 then sets out the action that must be taken by the local registration authority following receipt of a notice under s 19:

“21(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.”

24                  Section 22 authorises postponement of the grant of registration by a local registration authority.  One of the criteria for postponement is that the authority decides that the occupation in which registration is sought is not an equivalent occupation (s 22(1)(d)).  If a grant of registration has been postponed the local registration authority may, in due course, grant or refuse the registration (s 22(2)).  Postponement is limited to a period of six months and unless registration is refused within that time, the applicant is entitled to registration at the expiry thereof (s 22(3)).  Earlier registration may be granted on a review by the Tribunal (s 22(4)).  Section 23 sets out the grounds upon which a local registration authority may refuse the grant of registration.  These include the ground set out in s 23(1)(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.”

A decision to refuse registration on the ground of non-equivalence of the relevant occupations takes effect at the end of a specified period unless previously revoked or unless there is an application for review by the Tribunal “in which case the Tribunal may make whatever orders it considers appropriate” (s 23(2)). 

25                  Division 3 of Part 3 provides for deemed registration for an applicant for registration pending the outcome of the application (s 26)  - see Queensland Law Society Incorporated v Sande (1996) 1 Qd R 622.  While Mr Lawrence would have been entitled to deemed registration in this case it was not relevant to the grounds advanced on the hearing of the appeal.

26                  The primary function of the Administrative Appeals Tribunal in reviewing registration decisions is conferred by s 34 in Division 5.  Section 34(1) provides:

“34(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.”

Section 34(2) defines decision as having “the same meaning as in the Administrative Appeals Tribunal Act 1975”.  This picks up the definition in s 3(3) of the Administrative Appeals Tribunal Act which includes “giving, suspending, revoking or refusing to give a certificate…” and “doing or refusing to do any other act or thing”. 

27                  Division 4 of Part 3 of the Mutual Recognition Act deals with the equivalence of occupations.  Thus s 28 provides:

“The equivalence of occupations carried on in different States is to be determined in accordance with this Part.”

Note the reference is to “this Part”,  that is to say the criteria for determining equivalence are not limited to those set out in Division 4.  Section 29 sets out the general principles for equivalence as follows:

“29(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.”

28                  Division 4 makes provision for the Tribunal to make declarations that a particular occupation is not equivalent to that in another State.  Section 30 requires Part 3 to be given effect in accordance with such declarations.  If a declaration made by the Tribunal and a declaration made by Ministers are inconsistent the Ministerial declaration prevails (s 30(2)).

29                  The powers of the Tribunal on a review are set out in s 31:

“31(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.

   (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.”

Section 32 provides that a Minister from each of two or more States may jointly declare by notice in the gazette that specified occupations are equivalent and may specify or describe conditions that would achieve equivalence.  Such declarations have effect only in relation to the States concerned.  Section 32(4) requires the appropriate local registration authority to give effect to these declarations.

Statutory Framework – The Mines Safety and Inspection Act 1994 (WA)

30                  The qualification sought by Mr Lawrence under the Mutual Recognition Act 1992 was a Certificate of Competency under the Mines Safety and Inspection Act 1994 (WA).  That Act, which came into effect on 9 December 1995 (s 2 and GG 8/12/95 p 9535) is described in its long title, inter alia, as an Act “to consolidate and amend the law relating to the safety of mines and mining operations…”.  It unified a previously bifurcated legislative regime which made separate provision for metalliferous and coal mining respectively.  The Mines Regulation Act 1946, under which Mr Lawrence held his Western Australian Certificate of Competency, was repealed (s 107).  So too was the Coal Mines Regulation Act 1946 (s 107).  The Mines Regulation Act 1946 (WA) did not provide for the issue of Certificates of Competency, or the constitution of Boards of Examiners.  However, by s 61(1)(b) the Governor was authorised to make regulations, inter alia:

“Dealing with the examination and issuance of certificates to managers, supervisors and winding engineer drivers under this Act and the constitution of Boards of Examiners therefore and the registration of managers, supervisors and engine drivers to whom such certificates have been issued.”

Part 3 of the Mines Regulation Act Regulations 1976 established a Board of Examiners for granting mine managers, quarry managers and underground supervisors certificates (reg 3.2).  Regulation 3.4 provided for a First Class Mine Manager’s Certificate of Competency.  It required, inter alia, “practical experience in or about a mine for a period of not less than five years of which period at least three years has been general underground mining experience of a nature acceptable to the Board”.

31                  The Coal Mines Regulation Act 1946, unlike the Mines Regulation Act 1946, made express provision for Certificates of Competency and a Board of Examiners to issue them (ss 40 and 41). The qualifications for a First Class Mine Managers Certificate of Competency under s 41A of the Act included experience in a mine which was defined in s 5 of the Act in terms of coal mines and associated works. 

32                  Schedule 1 of the Mines Safety and Inspection Act 1994 sets out Savings and Transitional provisions which have effect by virtue of s 108 of the Act.  Clause 2 of Schedule 1 is a general transitional provision which provides in the relevant parts:

“2(1)  Except so far as is inconsistent with this Act, all persons, things and circumstances appointed, created or established under a repealed Act and having effect immediately before the commencement of this Act, are to have the same status, operation, and effect for the purposes of this Act.

  (2)  Without affecting the generality of subclause (1), the commencement of this Act is not to disturb the continuity of status, operation or effect of any …certificate of competency…existing or acquired under a repealed Act and having effect immediately before the commencement of this Act unless or until the effect is altered under a provision of this Act.”

Clause 7 of Schedule 1 deals specifically with various Certificates of Competency issued under the Coal Mines Regulation Act 1946 and provides for their being, in effect, converted to equivalent certificates under the Mines Safety and Inspection Act 1994  subject to the satisfaction of the Board of Examiners and a relevant District Inspector that the holder of the certificate has adequate relevant experience and understanding of relevant regulations relating to metalliferous mining.  The assumption upon which cl 7 appears to operate is that Certificates of Competency under the Coal Mines Regulation Act 1946 covered a narrower range of competency than the equivalent certificates under the Mines Regulation Act 1946 and the Mines Safety and Inspection Act 1994.  There is no equivalent provision relating to Certificates of Competency under the Mines Regulation Act 1946.

33                  The Mines Safety and Inspection Act 1994 does not in terms define the classes of Certificates of Competency that may be issued by the Board of Examiners. But such certificates are prerequisites for appointment to a range of managerial positions in the operation of mines (ss 35 to 38).  They are issued by a Board of Examiners established under s 48.  Regulations may provide for the Board to be constituted differently for different purposes.  The requisite qualification for an underground manager for a mine employing 25 or more persons underground is that the manager must be the holder of a First Class Mine Manager’s Certificate of Competency or an equivalent (s 35(2)(b)).  There are other categories of certificates which are to be found in the Mines Safety and Inspection Regulations 1995.  Those regulations refer to a First Class Mine Manager’s Certificate (reg 2.21), a Quarry Manager’s Certificate (reg 2.22), an Underground Supervisor’s Certificate (reg 2.23), a Deputy’s Certificate (reg 2.24), a Restricted Quarry Manager’s Certificate (reg 2.25) and Winding Engine Driver’s Certificates Classes 1 and 2.  They provide that when dealing with matters concerning Mine Managers and Underground Supervisors’ Certificates, other than certificates for underground coal mines, the Board is to consist of:

“(a)     the State mining engineer;

(b)       a senior inspector appointed by the Minister on the nomination of the State mining engineer;

(c)        the principal of the Western Australian School of Mines; and

(d)       2 persons each of whom must be the holder of a mine manager’s certificate appointed by the Minister on the nomination of the body known as the Chamber of Mines and Energy of Western Australia Inc.” (Reg 2.8)

When dealing with matters concerning certificates for underground coal mines, the Board is to consist of:

“(a)     the State coal mining engineer;

(b)       a senior inspector appointed by the Minister on the nomination of the State mining engineer;

(c)        the principal of the Western Australian School of Mines; and

(d)       2 persons each of whom must be the holder of a mine manager’s certificate, appointed by the Minister on the nomination of the body known as the Chamber of Mines and Energy of Western Australia Inc.” (Reg 2.10)

34                  Before issuing a First Class Mine Manager’s Certificate the Board must be satisfied that the applicant meets qualifying educational, practical and character standards.  The practical experience required is that the applicant:

“2.21(2)(d)  has had practical experience in or about a mine for a period of not less than 5 years of which period at least 3 years has been general underground mining experience of a nature acceptable to the Board.”

Regulation 2.21(4) then provides:

“2.21(4)  For the purposes of subregulation (2)(d), the practical experience must include –

(a)       in the case of an application for a first class mine manager’s certificate for underground coal mines –

            (i)         6 months at the coal face engaged in winning coal;

            (ii)        3 months on ventilation control including dust and gas monitoring; and

            (iii)       sufficient time to become competent in roof support, persons and materials transport and general mining applications;”

Subregulation 2.21(4)(b) deals with “any other case”.  It can be seen from that while there is no formal definition in the regulations of different classes of First Class Mine Manager’s Certificate, there is in fact a process by which two sub categories are created, one relating to mines other than underground coal mines, the other relating to underground coal mines.  It should be added, however, that there does not appear to be anything in these regulations to prevent the issue of a First Class Mine Manager’s Certificate covering all classes of mines including underground coal mines provided that the practical experience requirements of regulation 2.21(4) are met.

Statutory Framework – The Mines and Works Inspection Act 1920 (SA)

35                  Mr Lawrence’s qualifications in South Australia derived from the Mines and Works Inspection Act 1920 (SA) and the Mines and Works Inspection Regulations 1966.  The definition of “mineral” in s 4(1) of the Act includes “coal” and the definitions of “mine” and “mining operations” thus extend to coal mining.  The term “manager” is defined as:

“…the person for the time being having the immediate charge or direction of the mining operations on any mine.”

36                  The regulation making power is found in s 18 of the Act.  Section 18(1) provides:

“18(1)  The Governor may make regulations for the purpose of ensuring the safety and health of all persons who are employed in or about any mine and of the general public who may be affected by mining operations, and for the carrying on of all mining with due regard to the health and safety of the general public and for the prevention of nuisances and damage to property caused by mining operations and for preserving the amenity of any area or place from impairment by mining operations and practices, and operations and practices incidental or ancillary thereto, including, though without in any way limiting the general power of making regulations hereby conferred, regulations with respect to all or any of the matters mentioned in the second schedule hereto.”

The second schedule to the Act includes references to the appointment of mine managers and temporary mine managers and the registration of such appointments with the Minister (Item 4) and the responsibilities and duties of mine managers and temporary mine managers (Item 5). 

37                  The Mines and Works Inspection Regulations 1966 were divided into three parts dealing with Mines (Part I), Quarries (Part II) and Smelters (Part III).  The term “mine” was defined in reg 5 in terms narrower than the definition in the Act thus:

““mine” means (1)     any place in, on, or under which underground mining has been or is being carried on; and

(2)       works:”

The term “mining” was defined thus:

““mining” means –

(a)       by underground methods prospecting for, obtaining or collecting, and

(b)       treating

any metal, mineral, coal, guano, precious stones, salt, gypsum or shale, but does not include the making of geological or geophysical surveys; and “to mine” has a corresponding meaning:”

The term “manager” was defined by the regulations in the same words as the definition that appeared in the Act.  By reg 10 no more than nine persons could work in a mine in any period of twenty four hours unless the owner had appointed a person holding a certificate as required by Division 11 of Part I to be the manager of the mine and the manager so appointed was supervising the working of the mine.  There was a large number of detailed regulations relating to safety and working conditions in mines.  Division 11 of Part I entitled “MANAGERS CERTIFICATES AND PERMITS” provided for the qualifications for mine managers (reg 208), the establishment of a Board of Examiners for Mine Managers (reg 209) and the various classes of certificate that could be granted by the Board of Examiners (regs 210-213).  By reg 208 no person was permitted to act as the manager of a mine unless he held an appropriate qualification in accordance with that regulation.  For the manager of a mine the appropriate regulations were set out in reg 208(2) thus:

“(a)     if twenty or more men are working at the mine – a first-class mine-manager’s certificate;

(b)       if more than nine and not more than nineteen men are working at the mine – a first class or second-class mine-manager’s certificate;

(c)        if not more than nine men are working at the mine and the owner has received a direction from the Chief Inspector that a qualified manager be employed thereat – a first-class or second-class mine-manager’s certificate, or a special permit.”

38                  By reg 210, which dealt with the grant of a First-Class Mine-Manager’s Certificate, it was provided:

“210.  Subject to these regulations the board may grant a first-class mine-manager’s certificate to any of the following persons:-

(a)       Any person who has had practical experience in mining or quarrying for not less than three years and who has passed the examination conducted by the board for candidates for first-class mine-managers’ certificates:

(b)       Any person who has had experience and holds qualifications accepted by the board as equivalent to the experience and qualifications required under paragraph (a) of this regulation.”

The Second-Class Mine-Manager’s Certificate for which reg 211 provided is not relevant for present purposes.  The restricted certificates were provided for in reg 212 thus:

“212(1)  Where an applicant for a mine-manager’s certificate satisfies the board that he is qualified by experience and knowledge to manage a mine at which he is or will be employed, or mines of any specified class, but the board is not satisfied that he is entitled to an ordinary mine-manager’s certificate, the board may issue to him a restricted mine-manager’s certificate of the first- or second-class.

     (2)  A restricted certificate shall contain therein a statement of the particular mine or particular class of mines which the holder of the certificate is entitled to manage.

     (3)  A restricted certificate shall not entitle the holder of it to be a manager of any mine other than a mine indicated in the certificate.”

39                  General requirements for certificates were set out in reg 214, thus:

“214.  A certificate shall not be granted to any person unless-

(a)       he applies therefor on the form supplied by the board and satisfies the board of the facts giving him the right to be granted a certificate;

(b)       he satisfies the board either by passing a special examination set by the board or otherwise that he has an adequate knowledge of the law of South Australia relating to mining;

(c)        he is of good character and sober habits;

(d)       he is at least twenty-five years of age;

(e)        he has paid a fee of three guineas for the certificate.”

40                  Examinations for each class of certificate were to be held by the Board at least once every two years unless there were no candidates.

41                  The certificate issued to Mr Lawrence on 21 May 1993 was in the following form:

42                  The 1966 Regulations expired on 1 September 1994.  Thereafter new regulations have been made every two years which revoke and replace their predecessors.  The Mines and Works Inspection Regulations 1996 were in force when Mr Lawrence lodged his notice under s 19 of the Mutual Recognition Act.  The relevant provisions were substantially the same as those previously in force as are the current Regulations, The Mines and Works Inspection Regulations 1998.  The certificates are now designated, First-Class Underground Mine Manager’s Certificate, Second-Class Underground Mine Manager’s Certificate, First-Class Quarry-Manager’s Certificate and Second-Class Quarry-Manager’s Certificate. 

43                  In cl 5(2) of Schedule 1 to the 1998 Regulations it is provided that:

“A person holding a First-Class Mine-Manager’s Certificate immediately before the commencement of these regulations will be taken to have been granted a First-Class Underground Mine-Manager’s Certificate and a First-Class Quarry-Manager’s Certificate under these regulations (subject to any restrictions imposed by the Board of Examiners).”

The Nature of the Case before the Tribunal

44                  In his application to the Tribunal, in the section where he was asked to specify the decision to be reviewed,  Mr Lawrence  wrote:

“I am requesting the inforcement (sic) of clause 21(4) of the Mutual Recognition (Western Australia) Act 1995 and review of the WA Board of Examiners decision (date 27/1/98) Notification of my “substantive registration” in WA as a First Class Mine Manager for Coal Mines.”

As noted earlier, the Board of Examiners had not responded to his s 19 notification until 27 January 1998.  It was then outside the time limit imposed by s 21(1).  The response, when it arrived, did not expressly refuse or postpone the grant of the registration sought by Mr Lawrence.  What it did was, in terms, to say that his existing WA Certificate of Competency issued under the Mines Regulation Act 1946 was sufficient to enable him to carry on his occupation as a Mine Manager at all existing mines in the State including surface coal mines.  There being no underground coal mines in the State there was, in respect of them, “no such occupation in the State for which to register”.  It was not disputed that the Board of Examiners had failed to comply with the requirements of s 21 in failing to either grant, postpone or refuse registration.  As a result Mr Lawrence was, in the language of s 21(4) “entitled to registration immediately at the end of that period”.  No objection could be taken to his notice on any of the grounds on which refusal or postponement could have been effected. 

45                  The question arises what is the nature of the “entitlement to registration” referred to in s 21(4) which Mr Lawrence enjoyed by effluxion of time.  There is a pre-existing entitlement which arises upon lodgment of the s 19 notice.  It is created by s 20(1) and it is the entitlement “to be registered in the equivalent occupation, as if the law of the second State which deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration”. The entitlement to “registration immediately” conferred by s 21(4) must be more than that created at lodgment.  One of the grounds upon which a grant of registration may be postponed in the ordinary course is that the occupation in which registration is sought is not an equivalent occupation (s 22(1)(d)).  But that ground is not available to justify refusal or postponement of the application where s 21(4) applies.  By virtue of s 21(4) the question whether the occupation in which registration is sought is an equivalent occupation appears to be foreclosed, as a ground for postponement or refusal of the application, by the failure of the Board to take action within one month after notification.  That does not prevent the imposition of conditions on the relevant certificate if permitted by the Act and Regulations so that it may properly be said to relate to an equivalent occupation.  To do that is merely to give effect to the entitlement.  It does not involve a postponement or refusal of the qualification.  That is what the Tribunal did in this case.

46                  In the opening paragraph of its reasons the Tribunal described the “effect” of the Board’s decision as a refusal of Mr Lawrence’s application for registration.  But at par 34 it found that the Board “neither granted registration to the applicant nor took action under s 21(3) of the MR Act (that is postponed or refused the grant of registration to the applicant) within the period of one month after the applicant’s s 19 notice was lodged with it.”  It held that Mr Lawrence was “entitled to registration immediately at the end of that period.”  As a result the Tribunal assumed the functions of the Board and took the next step that the Board ought to have taken, in effect determining what, if any, conditions were necessary to attach to registration in Western Australia in order that that registration would be for an occupation equivalent to that registered in South Australia.

47                  Notwithstanding the Tribunal’s approach the Board’s conduct gave rise either to a refusal of registration or to a refusal to consider registration.  On either characterisation the Tribunal had before it a reviewable decision for the purposes of s 34 of the Act.  Accepting that by virtue of s 21(4) there was an entitlement to immediate registration, the Tribunal then turned to the question of the conditions to be attached.

The Tribunal’s Reasons

48                  After referring to the factual background already outlined and the relevant statutory provisions in South Australia and Western Australia, the Tribunal noted the contention for the WA Board of Examiners that, for the purpose of applying the mutual recognition principle, the occupation for which Mr Lawrence had been registered in South Australia should be regarded as that of Manager of an open cut coal mine.  It had been submitted that it would be appropriate for the Tribunal to make an order that Mr Lawrence was entitled to registration in Western Australia for the occupation of Coal Mine Manager subject to the condition (for equivalence with the occupation for which he had been registered in South Australia) that that registration would cover open cut coal mines only and not include underground coal mines.  The Tribunal was also asked to make a declaration under s 31(2) of the Mutual Recognition Act that the occupation of Coal Mine Manager in South Australia is not equivalent to the occupation of Underground Coal Mine Manager in Western Australia.

49                  In considering the application of the Mutual Recognition Act, the Tribunal found that the fundamental requirement for the application of the mutual recognition principle was satisfied namely, “that there was an occupation” as defined in s 4(1) of the Act for which Mr Lawrence had been registered in South Australia.  It characterised the relevant occupation as “Mine Manager” or more narrowly “Coal Mine Manager”.

50                  The Tribunal found that on 17 December 1997, Mr Lawrence had lodged a “valid and proper notice” under s 19 of the Mutual Recognition Act with the Board of Examiners in Western Australia which was the “local registration authority of the second State” for the purposes of s 19.  It referred to the requirement that the Board grant registration or postpone or refuse the grant of registration within one month after lodgment of the s 19 notice.  It also referred to s 21(4) whereby, if none of those actions is taken within one month, the person applying is entitled to registration immediately at the end of that period.  The Tribunal went on:

“In the present case none of the kinds of action referred to in s21 of the MR Act was taken by the Board of Examiners in Western Australia, following the lodgment of the applicant’s s19 notice on 17 December 1997, until 27 January 1998.  The relevant action that was purportedly taken by the Board of Examiners on the latter date was the refusal of the grant of registration to the applicant, which constituted the reviewable decision in this matter.”

It followed from these findings that the applicant was, by virtue of s 21(4) of the Mutual Recognition Act, entitled to registration on and with effect from 17 January 1998.  That was registration in the “equivalent occupation” in Western Australia.  The Tribunal treated s 21(4) as leaving open the question whether the occupation for which registration was sought was an equivalent occupation for the purposes of the Act.  In its approach to the question of equivalence the Tribunal used a five step process identified in an earlier Tribunal decision, Re Rowe and New South Wales Police Service (1997) 47 ALD 442 where it was said of s 29 of the Mutual Recognition Act at 444:

“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 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.”

51                  The Tribunal found that Mr Lawrence was registered in South Australia as a First Class Mine Manager (Restricted Coal Mines) and that the activities authorised to be carried out under the Certificate of Competency issued for that purpose chiefly comprised acting as the manager of any coal mine in South Australia whether it be an open cut coal mine or an underground coal mine.  The relevant occupation for which he might be registered in Western Australia was that of First Class Mine Manager.  The activities authorised to be carried out under a First Class Mine Manager’s Certificate were not substantially the same as the activities authorised to be carried out under his registration in South Australia.  The activities authorised under the Western Australian certificate were substantially broader because they would extend to any type of mine whether coal or metalliferous and whether underground or open cut.  The activities authorised to be carried out under his registration in South Australia did not extend to metalliferous mines.

52                  As a consequence the Tribunal was of the view that it was necessary to impose a condition on the Certificate of Competency to be granted under the Western Australian legislation.  That condition restricted the First Class Mine Manager’s certificate under the Mines Safety and Inspection Regulations 1995 (WA) to which Mr Lawrence was entitled to coal mines, including underground as well as open cut coal mines.  It was the Tribunal’s opinion that “the imposition of that condition will achieve equivalence between the relevant occupations by ensuring that the activities authorised to be carried out under the applicant’s Western Australian registration are “substantially the same” as the activities authorised to be carried out under his South Australian registration, within the meaning of s29(1) of the MR Act”.

53                  The Tribunal then considered a submission made on behalf of the Board of Examiners that it should make a declaration under s 31(2) that “the occupation of coal mine manager in South Australia is not equivalent to the occupation of underground coal mine manager in Western Australia”. 

54                  The Tribunal referred to Re Cleary and Nurses’ Board of the Northern Territory (1996) 41 ALD 395, a decision by the Tribunal differently constituted, in which it was said, inter alia, that to make a declaration under the Act was a matter of some gravity and that 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.”  The Tribunal quoted from par 50 of the decision in Re Cleary as follows:

“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.”  

In the event, the Tribunal decided it was “neither necessary nor appropriate” for it to make a declaration in the terms proposed.  It said:

“In particular, the Tribunal is not satisfied, as required by para (a) of s31(2), that “the activities involved in the (relevant) occupations are not substantially the same (even with the imposition of conditions).”  In addition, there is not the kind of “strong evidence” before the Tribunal on the basis of which it might be satisfied as to the matters specified in para (b) of s31(2).  There is also no evidence before the Tribunal as to the views of other persons or bodies whose interests would be likely to be affected by the making of such a declaration.  Accordingly, the Tribunal refuses to make a declaration under s31(2) of the MR Act in this case.”

By way of conclusion the Tribunal stated that Mr Lawrence was entitled to be granted a First Class Mine Manager’s Certificate by the Board of Examiners under reg 2.21 of the Mines Safety and Inspection Regulations 1995 (WA) subject to the condition that that certificate be restricted to coal mines including underground and open cut coal mines.

Grounds of Appeal against the Tribunal’s Decision

55                  The Board of Examiners has appealed against the Tribunal’s decision on the following grounds:

“(a)     that the Tribunal erred in not reaching a finding on the evidence before it whether the respondent’s appeal to the Tribunal was frivolous or vexatious or was an abuse of process.

(b)       that the Tribunal acted unreasonably and failed to take a relevant circumstance into account in finding that the activities authorised to be carried out under the respondent’s certificate of competency included acting as the manager of any coal mine in South Australia, whether it be an open-cut coal mine or an underground coal mine, in circumstances where, for the purposes of the decision, there are not and have never been underground coal mines in South Australia.

(c)        that the Tribunal misinterpreted or misapplied section 29 of the Mutual Recognition Act 1992, acted unreasonably and failed to take a relevant circumstance into account in finding that in order to achieve equivalence between the occupations of first class mine manager in Western Australia and first class mine manager (restricted to coal mines) in South Australia, a condition should be imposed which entitled the respondent to manage underground coal mines in Western Australia in circumstances where the first class mine manager’s certificate in South Australia never in fact related to underground coal mines.

(d)       that the Tribunal misinterpreted or misapplied section 31 of the Mutual Recognition Act 1992, acted unreasonably and failed to take a relevant circumstance into account in failing to find that it should specify a condition which limited the respondent’s first class mine manager’s certificate in Western Australia to entitle him to manage only open-cut mines in circumstances where the first class mine manager’s certificate in South Australia in fact related only to open cut coal mines.

(e)        that the Tribunal misinterpreted or misapplied section 31(2) of the Mutual Recognition Act 1992, acted unreasonably and failed to take a relevant circumstance into account in failing to make a declaration that the occupation of coal mine manager in South Australia is not equivalent to the occupation of underground coal mine manager in Western Australia in circumstances where the unchallenged evidence before the Tribunal was that:

            (i)         the qualifications necessary to manage an underground coal mine safely are different from and of a greater degree than those which are sufficient to manage an open-cut mine safely;

            (ii)        if a manager of an underground coal mine were not properly qualified, workers in the mine could reasonably be expected to be exposed to a threat to their health and safety.”

Ground (a) – Abuse of Process

56                  Consistently with the Board’s letter of 20 February 1998 it was submitted by counsel for the Board that there was evidence before the Tribunal that the purpose of Mr Lawrence’s application for registration was not in furtherance of the mutual recognition principle but rather as a device to enable him to obtain recognition in New South Wales and Queensland of his South Australian certificate.  The evidence referred to comprised two letters.  The first was a letter dated 31 May 1993 from Mr Lawrence to the Secretary of the Board of Examiners in the Queensland Department of Minerals and Energy.  In that letter Mr Lawrence advised of his intention to secure statutory qualifications in the various States for the award of his “First Class Mine Manager’s Certificates of Competency” for both underground Coal and Metalliferous Mines.  The letter referred to conversations he had had with secretaries of four Boards of Examination of the various States and his stated objective of formal recognition under the respective codes and regulations of each State.  In that letter, which was written not long after the passage of the Mutual Recognition Act, Mr Lawrence said:

“At present, the distinct possibility under this new Federal legislation is that, a less respected initial statutory qualification can be presented and used for the basis of obtaining a second.  Then, that second qualification may be used as the basis of attaining well regarded qualifications.

This situation exists and causes serious concerns for the Departments for obvious reasons.  It is also reason for like minded professionals and myself to have sceptical concerns over the credibility of inappropriately acquired credentials.   No professional would like their qualifications to fall into disrepute in such circumstances.

In response to discussions with the Queensland Department of Minerals and Energy, I am applying via the Mutual Recognition Act to their Board of Examiners and present them my personal position for utilisation as a test case.  I wish to support those reported concerns by this purposeful approach to demonstrate that professional mining engineers are not offended by the requirement of being tested for competency under existing State regulations.  In fact, until a National Code is adopted I view this as ethically obligatory.”

57                  The second letter relied upon by the Board of Examiners was a letter dated 13 January 1998 to Mr Lawrence from the Chairman of the Coal Mining Qualifications Board in New South Wales.  By that letter the Chairman informed Mr Lawrence that his South Australian qualification had been registered for use in New South Wales in accordance with the Mutual Recognition (New South Wales) Act 1992 subject to conditions expressed thus:

“1.       This registration is restricted to open cut coal mines.

2.         Condition 1 is imposed pursuant to Clause 29(2) of the Schedule to the Mutual Recognition Act for the purpose of achieving equivalence of occupations.

The equivalent occupation in new South Wales is the subject of Certificates of Competency granted under section 19(1)(g) of the Coal Mines Regulation Act, 1982.”

58                  It was submitted for the Board that Western Australian recognition of Mr Lawrence’s South Australian qualification could be used to gain recognition of that qualification in States where there are underground coal mines.  Support for this ulterior purpose was said to derive from the fact that the application for registration in Western Australia for a First Class Mine Manager’s Certificate for underground coal mines was academic as there are no underground coal mines in Western Australia and Mr Lawrence does not require a further certification to manage any mine currently in existence in Western Australia.  Having regard to these matters it was said that the Tribunal had erred in failing to find that Mr Lawrence’s appeal to it was frivolous and vexatious and at least an abuse of process.  It was never quite clear why the South Australian qualification could not be used to ground the grant of a like qualification in New South Wales.

59                  The letters of 31 May 1993 and 13 January 1998 were in evidence before the Tribunal.  These were said in the closing address of counsel for the Board to raise “some  suspicion” that the purpose of the application was not in fact to obtain an entitlement to operate underground coal mines in Western Australia.  Counsel submitted to the Tribunal that if the application were not bona fide for purposes consistent with the intention of the Mutual Recognition Act, then it would be an abuse of the process of the Tribunal and should not be entertained.  It was suggested to the Tribunal that Mr Lawrence was putting his application up as a test case “in order to push his barrel of a national code for coal mining regulators”.  Alternatively, it was suggested that he was trying to do that which he himself had identified as a danger of the Mutual Recognition Act, namely the possibility that a qualification of higher status could be obtained by virtue of a “less serious qualification”. 

60                  Section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) empowers the Tribunal, inter alia, to dismiss an application for the review of a decision if it is satisfied that the application is frivolous or vexatious.  The term “abuse of process” does not appear explicitly.  The section was considered by three Judges of this Court, Mathews, Beaumont and Hill JJ, sitting as Presidential Members with Mathews J presiding as President of the Tribunal in Re Williams and Australian Electoral Commission (1995) 38 ALD 366.  In that case the applicant sought review of a decision which had entered, in a Register under the Commonwealth Electoral Act, the name of an officer of the political party known as “The Greens”.  The proceedings were said to be futile because the person in question was no longer on the Register when the proceedings came on.  In dismissing the application as frivolous and vexatious the Tribunal referred to a submission that s 42B was not exhaustive of its powers to dismiss a proceeding as an abuse of process.  The Tribunal said at 373:

“It is questionable whether the AAT, being a statutory tribunal outside the court system, has inherent powers to control its process similar to those which are possessed by the courts.”

It was not necessary to address the issue in that case because it fell within the provisions of s 42B.  It did so, not only because of the futility of the proceedings, but also because they were regarded by the Tribunal as “being pursued by the applicant for a collateral purpose”,  a purpose which the Tribunal described as “irrelevant to any issue which could legitimately be raised in these proceedings.”  Moreover that collateral purpose was itself a futile one.  Their Honours referred, with approval, to the observations of Roden J in Attorney-General v Wentworth (1998) 14 NSWLR 481 at 491:

“It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds.  I believe that the test may be expressed in the following terms:

1.         Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2.         They are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise. 

3.         They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”

61                  Whatever views Mr Lawrence may have harboured about the deficiencies of the Mutual Recognition Scheme and the extent to which it permitted exploitation of the regulatory regime with the lowest common denominator in qualifying standards, he was entitled to invoke the Act in order to pursue the purpose of obtaining in Western Australia the qualification to which he claimed entitlement by reason of that which he had from South Australia.  So long as his application was for the purpose of obtaining that qualification, the existence of a purpose involving a further qualification in New South Wales did not vitiate his immediate and legitimate objective.  His intentions in relation to the use of his qualifications are neither here nor there.  No person who has a relevant qualification can be compelled to use it except in the sense that, in some cases, it might lapse for want of failure to meet particular requirements for keeping abreast of relevant industry or professional developments.  Mr Lawrence’s opinions about Mutual Recognition and the fact that he might obtain a New South Wales qualification in order to demonstrate weaknesses in the scheme would not render his application in genuine pursuit of his legal entitlement an abuse of process.

62                  The submissions before the Tribunal on the point were slight.  The Tribunal focussed correctly upon the issue of the legal entitlement to the qualification.  There was no basis for dismissing the application as frivolous or vexatious.  The first ground of appeal therefore fails.  It would seem in any event that this ground of appeal was incompetent.  As Olney J pointed out in Australian Postal Corporation v Matsuko (unrep Olney J, 14/5/96) an appeal lies from a decision of the Tribunal under s 44 of the Administrative Appeals Tribunal Act only where the decision is the final decision of the Tribunal formulated in accordance with the provisions of s 43.  A decision refusing an application to dispose of proceedings under s 42B does not fall into that category.  On the other hand a final decision based upon a finding that the proceedings are frivolous or vexatious would be reviewable.  See also Director of Social Services v Chaney 47 FLR 80 for a discussion of the relevant general principles applied by Olney J.

Ground (b) – Effect of South Australian Qualification

63                  This ground complained of the Tribunal’s finding in relation to the scope of the South Australian qualification namely the (Restricted) Mine Manager’s Certificate of Competency, First Class awarded to Mr Lawrence on 21 May 1993.  The Tribunal found that:

“…the activities authorised to be carried out under the abovementioned Certificate of Competency chiefly comprise acting as the manager, within the meaning and for the purposes of the Mines and Works Inspection Act 1920 (SA)and the Regulations made thereunder, of any coal mine in South Australia, whether it be an open cut coal mine or an underground mine.”

This was said to be an erroneous finding because the South Australian Board of Examiners had not in fact examined Mr Lawrence's competency in managing underground coal mines.  The mutual recognition principle, it was said, relates to the ability of a person who is registered in connection with an occupation to carry on an equivalent occupation in another State.  A determination of the nature of the occupation must be made by reference to the activities carried on and not the legal structure in which it operates.

64                  The best that may be said of these submissions is that they invite attention to the question which must be asked of any person invoking the provisions of the Mutual Recognition Act – what is the occupation for which that person is registered in the “first State”?  That however is a question 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 is not to be answered by reference to the administrative processes for implementing those provisions.  That could very quickly lead to the registration authority in the second State judging the strength or weakness of registration in the first by reference to the content and standard of its examinations or other processes lying behind registration.  To the extent that such an approach falls outside the express statutory qualifications on the mutual recognition principle in cases involving public health and safety and environment protection and the use of conditional registration to obtain equivalence, it is an unwarranted erosion of that principle.

65                  It is registration for an occupation in the State of original qualification that is the subject of recognition, not examination for that occupation.  The 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.  To say this is to simply restate the effect of the mutual recognition principle in s 17:

“…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;

…”

The exception to the principle, in s 17(2) that it does not affect the operation of general laws regulating the manner of carrying on an occupation in the second State is not relevant to the point taken by the Board under this ground of appeal.  Indeed the qualification to that exception, that it does not extend to laws based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation, lies against the submission made by the Board. 

66                  It is perhaps useful to refer back to the Second Reading Speech which stated the guiding principle in relation to mutual recognition of occupational qualifications thus:

“If someone is assessed to be good enough to practise a profession or occupation in one State or Territory, then they should be able to do so anywhere in Australia.” Parl Deb H of R 3 November 1992 p 2433

For occupations which are substantially the same it was said:

“Local registration authorities will be required to accept the judgment of their interstate counterparts of a person’s educational qualifications, experience, character or fitness to practice.” Parl Deb H of R 3 November 1992 p 2433

The underlying premise, it was acknowledged, is that “the existing regulatory arrangements of each State or Territory generally provide a satisfactory set of standards – ibid at 2433.

67                  This does not prevent a judgment being made that there is no equivalent occupation in the second State.  In Sande (supra) the Full Court of the Federal Court held that the Mutual Recognition Act did not require that a registered conveyancer in South Australia be registered as a conveyancer in Queensland.  Conveyancing, being an activity which could not be carried out in the latter State by legal practitioners, there was no occupation of conveyancer of Queensland for which registration could be sought.

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.

Ground (c) – Imposition of Conditions

69                  By the third ground of appeal the Board complains of the Tribunal’s finding that in order to achieve equivalence between the occupations of First-Class Mine-Manager in Western Australia and First-Class Mine-Manager (Restricted to Coal Mines) in South Australia a condition should be imposed which entitled Mr Lawrence to manage underground coal mines in Western Australia in circumstances where his certificate in South Australia never in fact related to underground coal mines. This ground was infelicitously expressed.  It appeared, as argued, to reduce to the same point as was made in the second ground.

70                  The imposition by the Tribunal of the condition restricting the application of First-Class Mine-manager’s Certificate in Western Australia to coal mines was calculated to achieve equivalence between the South Australian and the Western Australian qualifications.  The Tribunal had found that the activities authorised to be carried out under the South Australian Certificate of Competency chiefly comprised acting as the manager, within the meaning and for the purposes of the Mines and Works Inspection Act 1920 (SA) and the regulations made thereunder, of any coal mine in South Australia, whether it be an open cut coal mine or an underground coal mine.  Because the First-Class Mine-Manager’s Certificate in Western Australia authorised activities extending to both coal and metalliferous mining, its coverage was to be restricted to coal mining to achieve equivalence.  This was done pursuant to s 29(1) following a consideration of the activities authorised pursuant to  registration in the first State and the activities authorised pursuant to registration in the second State.  Equivalence between those activities was achieved by means of the imposition of conditions.  The imposition of conditions was done by the Tribunal pursuant to its specific power under s 31(1) exercised in accordance with the principles in s 29(1).  There was no error of law in its approach.  This ground of appeal is simply a revisiting of the second ground of appeal and fails for the same reason.

Ground of Appeal (d) – Failure to impose a condition

71                  By this ground of appeal the Board complains that the Tribunal misinterpreted or misapplied s 31 of the Mutual Recognition Act in failing to find that it should specify a condition which limited Mr Lawrence’s First-Class Mine-Manager’s Certificate in Western Australia to an entitlement to manage only open cut mines having regard to the fact that the First-Class Mine-Manager’s Certificate in South Australia in fact related only to open cut coal mines.  This ground in terms related to the exercise of the Tribunal’s power to impose conditions under s 31(1).  It reduced to the same point as in grounds (b) and (c) and fails for the same reasons.

Ground (e) – Misapplication of section 31(2)

72                  In this ground the Board complained that the Tribunal misinterpreted or misapplied s 31(2) of the Mutual Recognition At 1992 in failing to make a declaration that the occupation of coal mine manager in South Australia is not equivalent to that of underground coal mine manager in Western Australia.  As in each of the grounds of appeal bar the first, the Tribunal was said to have acted unreasonably and failed to take irrelevant circumstances into account by reason of the matter complained of.  The insertion of this formula into these grounds did not add to their clarity.

73                  When it came to consider the request for a declaration under s 31(2) of the Act the Tribunal had already found that the occupation of managing a coal mine in Western Australia, contemplated by Western Australian law, was equivalent to that of managing a coal mine contemplated by the South Australian law.  Acting on that finding the Tribunal imposed a condition on the Western Australian certificate, excluding metalliferous mining, which gave effect to that finding.  That finding which focussed on the activities authorised in each case precluded a declaration of non-equivalence under s 31(2)(a).  

74                  What function then does s 31(2)(b) confer on the Tribunal?  Despite its language it has nothing to do with the equivalence of occupations.  The test of equivalence is the substantial similarity of the activities authorised by registration for the occupations under consideration.  That question is concluded by s 31(2)(a).  What s 31(2)(b) is concerned with is the acceptability of the home state’s standards for authorisation of an occupation where they may affect public health or safety or the protection of the environment.  The device of a declaration of non-equivalence under s 31(2)(b) cannot conceal the reality that the facility for making such declarations compromises the mutual recognition principle.  It allows the Tribunal, in certain circumstances, to look behind registration in the home State and assess the standards necessary to achieve that registration.  To say that is not to criticise anything but cosmetic elements of the drafting.  The policy objective is an entirely legitimate limitation on the lowest common denominator effect where issues of public health and safety or the protection of the environment are at stake.

75                  There is an analogous but different regime of exceptions and exemptions in Part 2 of the Act which deals with goods.  That Part sets out a “mutual recognition principle” applying to goods which provides that what may lawfully be sold in a home State may also be sold in a host State (s 9).  It is subject to exceptions which save the operation of non-discriminatory host State laws regulating the manner of sale of goods (s 11(2)), their transport, storage and handling (s 11(3)) and their inspection (s 11(4)).  The latter two exceptions apply only to laws directed at matters affecting the health and safety of persons in the host State or at preventing, minimising or regulating environmental pollution there (s 11(3)(b) and 11(4)(c)).  Some goods and laws set out in schedules to the Act are permanently exempted from the operation of the principle (s 14).  There is provision in s 15 for the temporary exemption of laws of the host State declared by an act or regulation of that State for that purpose (s 15(1)).  But such exemptions only have effect if they are substantially for the purpose of protecting the health or safety of persons in the host State or preventing, minimising or regulating environment pollution (s 15(2)).  Such exemptions are limited to a period of twelve months (s 15(3)).

76                  As Wright (supra) observed at 284:

“It seems that s 15 exists to promote prompt movement on disparate laws relating to the sale of goods that have a health, safety or environmental basis.  It demonstrates a recognition that these laws may be sound but provides a direction that their soundness has to be argued.”

77                  Returning then to Part 3, s 32(2)(b), in terms, sets up grounds for a declaration of non-equivalence which are not limited by the requirement for a finding that the activities involved in the two occupations are not substantially the same, even with the imposition of conditions.  It follows that it can apply to cases in which the activities involved in the two occupations are substantially the same.  The Tribunal may decide, notwithstanding substantial similarity in the activities involved in the two occupations, that registration in the home State should not give rise to an entitlement to carry on the class of activities in question in the host State.  There is conferred upon the Tribunal a discretion to make a declaration of non-equivalence if it has made the evaluative judgment for which that paragraph provides in its use of the word “should”.  The obligation to make that evaluative judgment is in turn dependent upon satisfaction of the three conditions set out in s 32(2)(b)(i), (ii) and (iii).  Those conditions describe the attributes of the activities in respect of which the Tribunal must make its judgment about reciprocal entitlement.  They do not themselves set up the standards to be applied in reaching that judgment.  In substance the activities comprising the occupation in question must be of a kind which, when carried out by the wrong person, could give rise to a real threat to the health or safety of persons or could reasonably be expected to cause significant environmental pollution.  They must also be of a kind where risks to health or safety or the environment cannot practically be dealt with by regulating the manner in which the activities are carried out.

78                  The threat to which subpar (ii) refers must be one which could “reasonably be expected” to arise.  That is to say it must rest upon objective grounds not subjective opinions. It must also be “real”.  This is a word, akin to “substantial” or “serious” which confer evaluative functions in other statutory contexts – see the exposition of “a well founded fear of persecution” in the Refugee Convention as reflecting a “real chance” of persecution in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 (McHugh J, Mason CJ agreeing) and at 398 (Dawson J) and 407 (Toohey J) and as having a “real substantial basis” in Minister for Immigration and Ethnic Affairs v Guo (1990) 191 CLR 559 at 572.  A real threat involves a finite probability of harm to persons.  It may arise when there is a low probability of harm but where, were the harm to occur, it would be so great that even a low probability of its occurrence requires that the Tribunal embark upon a consideration of whether registration in the home State “should not” entitle registered persons to carry on the relevant activities in the host State.  Here there is an evaluative judgment to be made by the Tribunal. In so far as the Tribunal adopted a standard of “imminent peril” it erred.  The concern of this provision with public health and safety and the environment mandates a broader protection than is afforded by that rather restrictive formula which also suffers from disconformity with the logic and structure of its statutory context.  In the case of the manager of an underground coal mine it would probably not be particularly difficult to reach the conclusion that the activities comprised in that occupation, if carried out by a person not conforming to appropriate standards, could reasonably be expected to expose persons to a real threat to their health or safety.  If that assessment is made and the other elements of  s 32(2)(b) are present, the Tribunal must then decide whether registration in one State should not entitle registered persons to carry on the relevant activity in the other State.  That will involve deciding whether registration in one State could authorise persons to carry on the relevant activity who do not conform to appropriate standards.  In this way, where health, safety or environmental issues are raised, the Tribunal may look behind the process of registration to consider what if any risk there is of persons being registered who do not conform to appropriate standards.  That is potentially a wide ranging inquiry.  It may have regard to a number of issues including the way in which the host State’s regulation of the manner of carrying out the relevant occupation offsets the risk created by lower home State registration standards.  It may also have regard to the extent to which the power to impose conditions on registration could diminish that risk albeit that power is exercised for the purposes of achieving equivalence.   It is to be noted that if the Tribunal is satisfied that registration in one State should not entitle registered persons to carry on the relevant activity in the host State, it still has a discretion whether or not to make a declaration under s 31(2).  The factors relevant to the discretion will no doubt overlap substantially with those relevant to the antecedent assessment.

79                  In the ordinary course it is to be expected that comprehensive materials would be put before the Tribunal before any such judgment were sought by the local registration authority of the host State.  The declaration procedure does not result in a temporary exemption as does that for which s 15 provides in respect of goods.  No doubt that is a reason why this declaratory process is vested in a tribunal rather than in a state authority.  Such declaration may of course be overridden by a joint ministerial declaration from home and host States under s 32.  No doubt a tribunal declaration would put in train an exploration of harmonisation of relevant standards between the two jurisdictions.  Nevertheless such a declaration is a serious matter.  In this case it may be that there was sufficient material to make the judgment which would support it.  I express no view on that point. The difficulty is that the Tribunal set for itself too high a threshold for entering upon the process of assessment for which s 31(2)(b) provides.  In that respect it erred.  The test which was adopted from the decision of Re Cleary and Nurses Board of the Northern Territory was incorrect in its characterisation of what is necessary to demonstrate a “real threat” of the kind contemplated by s 31(2)(b)(ii).  As to the quality of the evidence upon which it must form its judgment, nothing is added by the words “particularly strong” used by the Tribunal in Cleary although that does appear to have been linked to the elevated concept of “real threat” adopted in that case.

80                  The remaining question is whether the Tribunal’s error in this respect affects the outcome of the case.  That depends upon whether s 21(4) precludes the refusal of recognition by virtue of a declaration of non-equivalence under s 31 if the Board has not acted within the time specified by the statute.  It is not without some hesitation that I have come to the conclusion that s 21(4) does so operate.  In so doing I have had regard to the reasons for judgment of Lee J which I have had the opportunity of reading in draft.  A declaration of non-equivalence may be made on grounds of want of substantial similarity in the activities carried on under the two relevant occupations (s 31(2)(a)) or on the grounds of health, safety and environmental protection (s 31(2)(b)).  A declaration on the latter grounds, although not really related to equivalence of occupations, is plainly to be treated in the same way, in terms of its consequences, as a declaration based on want of substantial similarity.  In the event that a declaration of non-equivalence had been made under s 31 prior to the lodgment of the notice under s 19, nevertheless s 21(4) would not permit non-equivalence so based to be a ground of objection to the registration.  If that is right then, a fortiori, the Board cannot seek to close the stable door after the horse has bolted by seeking a declaration under s 31 as a way of defeating the operation of s 21(4) when it has failed to act within time.

81                  It may be that this could be said to elevate the principle of mutual recognition over considerations of health, safety and environmental protection.  The Act however provides a mechanism by which local registration authorities acting within time may address those issues.  Presumably the Act does not contemplate that a local registration authority genuinely concerned about issues of that kind would allow circumstances to occur in which s 21(4) would apply. 

82                  In my opinion and for these reasons the appeal should be dismissed.

Conclusion

83                  The appeal should be dismissed and the applicant should pay the respondent’s costs of the appeal.

Associate:

Dated:                  July 2000

REASONS FOR JUDGMENT

LEE J:

84                  This is an “appeal” from a decision of the Administrative Appeals Tribunal (“the Tribunal”). Pursuant to s 44(3)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) and s 20(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed that the “appeal”, a matter in the original jurisdiction of the Court, be heard by a Full Court.

85                  The applicant (“the Board”) “appeals” from a decision of the Tribunal made pursuant to the Mutual Recognition Act 1992 (Cth) (“MR Act”) (adopted by the Mutual Recognition (Western Australia) Act 1995 (WA)) that under the Mines Safety and Inspection Act 1994 (WA) the respondent was “entitled to be granted a first class mine manager’s certificate…subject to the condition that the certificate be restricted to coal mines of any kind, including underground coal mines and open cut coal mines…”.

86                  The relevant facts are set out in the respective reasons of French and Carr JJ and it is unnecessary to repeat them.

87                  The questions of law on which the “appeal” was brought pursuant to s 44 of the AAT Act, and which defined the matter in respect of which jurisdiction was conferred on the Court (see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 per Gummow J at 178-182), were as follows:

“(a)     whether the Tribunal erred in not making a finding on whether the respondent’s appeal to the Tribunal was frivolous or vexatious or was an abuse of process.

 (b)      whether the Tribunal acted unreasonably or failed to take a relevant consideration into account in finding that the activities authorised to be carried out under the respondent’s certificate of competency include acting as the manager of any coal mine in South Australia, whether it be an open-cut coal mine or an underground coal mine.

 (c)       whether the Tribunal misinterpreted or misapplied section 29 of the Mutual Recognition Act 1992, acted unreasonably or failed to take a relevant consideration into account in finding that in order to achieve equivalence between the occupations of first class mine manager in Western Australia and first class mine manager (restricted to coal mines) in South Australia, a condition should be imposed which entitled the respondent to manage underground coal mines in Western Australia.

 (d)      whether the Tribunal misinterpreted or misapplied section 31(1) of the Mutual Recognition Act 1992, acted unreasonably or failed to take a relevant circumstance into account in failing to find that it should specify a condition which limited the respondent’s first class mine manager’s certificate in Western Australia to entitle him to manage only open-cut coal mines.

(e)        whether the Tribunal misinterpreted or misapplied section 31(2) of the Mutual Recognition Act 1992, acted unreasonably or failed to take a relevant consideration into account in failing to make a declaration that the occupation of coal mine manager in South Australia is not equivalent to the occupation of underground coal mine manager in Western Australia.”

Before turning to the “questions of law” adumbrated by the Board, it is necessary to determine the proper construction of the relevant provisions of the MR Act contained in Pt 3 (ss 16-42) under the heading “Occupations”.

88                  The background to, and origin of, the MR Act providing the context in which the relevant provisions are to be construed has been set out in Sande v Registrar, Supreme Court of Queensland (1996) 134 ALR 560 per Lockhart J at 567 and in the reasons of French J. It is unnecessary to repeat those details.

89                  Section 3 of the MR Act states that the purpose of the MR Act is to enact legislation “promoting the goal of freedom of movement of goods and service providers in a national market in Australia”. The MR Act is Commonwealth legislation effecting the purpose of the Parliament to impose duties and obligations on registration authorities of the States and Territories that, under s 51(xxxvii) of the Constitution, have either referred to the Commonwealth the legislative power in exercise of which the MR Act has been enacted, or have adopted the MR Act so enacted.

90                  The relevant definitions set out in s 4(1) of the MR Act are as follows:

“‘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;”

91                  Under s 19 of the MR Act a person who is registered for an occupation in one State may seek registration for the equivalent occupation in a second State “in accordance with the mutual recognition principle”.

92                  Section 17(1) states that the “mutual recognition principle” is that a person who is registered in one State for an occupation is, by the MR Act, entitled, after notifying the registration authority of the second State for the equivalent occupation, to be registered in the second State for that occupation, and pending such registration, to carry on the equivalent occupation in that State. Section 19 provides that the form of notification is written notice and prescribes the content of such a notice.

93                  Under s 20(5) the registration authority with which the notice has been lodged, may impose conditions on registration if, inter alia, that is necessary to “achieve equivalence of occupations”. General principles for determining the equivalence of occupations is set out in ss 29-32 of the MR Act. Section 29(1) provides that:

“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).”

94                  Under s 31(2) the Tribunal, on a review, may make a declaration that occupations carried on in two States are not equivalent if it is satisfied in the terms required by s 31(2)(a) or s 31(2)(b). Sections 31(3)-(5) provide that such a declaration is to be published in the Gazette and is to be notified to counterpart authorities in other States, and the Commonwealth. Whether notwithstanding that no declaration has been made by the Tribunal, the matters set out in s 31(2)(b) are to be considered by a registration authority as a qualification on the terms of s 29 when that section is applied by the registration authority to provide the meaning of “equivalent occupation” as used in ss 19(1), 20(1), 22(1)(d) and 23(1)(c) of the MR Act is unnecessary to determine. It may be noted that s 29(3) provides that the section has effect subject to any relevant declarations in force under ss 31 and 32.

95                  Section 32 provides that a Minister from each of two or more States may jointly declare that specified occupations are equivalent and may specify or describe conditions that will achieve equivalence.

96                  It was not suggested that in respect of the occupation for which the respondent sought registration in Western Australia, the Tribunal had made a declaration of non-equivalence of occupations under s 31, or that Ministers had made a declaration of equivalence of occupations under s 32.

97                  It was not in issue that the respondent had been granted a certificate in South Australia on 21 May 1993 authorising him to carry out the duties of a manager of coal mines in that State nor that for the purpose of the MR Act such certification constituted a registration of the respondent by a registration authority in respect of the carrying on of an occupation in that State.

98                  Further, it was not in issue that on 17 December 1997, when the respondent completed and lodged with the Department of Minerals and Energy in Western Australia a form issued by the Department (erroneously described therein as notification to the Department of entitlement to registration under the “Mutual Recognition (Western Australia) Act 1995 Part 3, Division 2, Section 19”), the respondent had lodged a written notice with the Board under s 19 of the MR Act. In the terms of that notice, the occupation for which the respondent was registered in South Australia and in respect of which he sought registration in Western Australia, was “1^st Class Mine Manager’s Certificate of Competency for Coal Mines”.

99                  On 7 December 1994 the respondent had been registered in Western Australia, pursuant to the Mines Regulation Act 1946 (WA), as the holder of a “First Class Mine Manager’s Certificate of Competency”. Although the Mines Regulation Act was repealed on 9 December 1995 by the Mines Safety and Inspection Act, a certificate granted thereunder was continued by the transitional provisions of the repealing legislation. Whether that had relevance to registration sought in the notice lodged by the respondent was not an issue in the “appeal”.

100               Section 20 of the MR Act states that a person who lodges a notice under s 19 is entitled to be registered in the equivalent occupation, and s 21(1) provides that registration must be granted within one month after that notice is lodged. Section 21(3) qualifies s  21(1) as discussed below. Section 25 provides that pending the grant or refusal of registration, a person who lodges a notice under s 19 is taken to be registered in the second State for that occupation and describes that circumstance as “deemed registration”. Under s 26 a person’s “deemed registration” under s 25 continues until it ceases in accordance with Pt 3 of the MR Act. Section 26(2) provides that “deemed registration” ceases if a person becomes “substantively registered” in connection with the occupation concerned. Section 27 provides that a person who has “deemed registration” may carry on the occupation as if the “deemed registration” were “substantive registration”. Consonant with such provisions, s 23(2) states that a decision to refuse registration (ie “substantive registration”) on the ground that the occupation in which registration is sought is not an equivalent occupation, does not take effect until a specified period after notice of that decision has been given, such period not being less than two weeks.

101               Section 21(3) provides that the registration authority may, subject to Pt 3 of the MR Act, postpone or refuse the grant of registration within the period of one month after the notice is lodged. Section 22(1) sets out the grounds on which the registration authority may postpone the grant of registration, one ground being that the authority decides that the occupation in which registration is sought is not an equivalent occupation (s 22(1)(d)). Section 23(1) states that the registration authority may refuse the grant of registration if, inter alia, it decides that the occupation in which registration is sought is not an equivalent occupation and that equivalence cannot be achieved by the imposition of conditions (s 23(1)(c)).

102               Section 21(4) provides that if the registration authority neither grants the registration nor “takes action” under s 21(3), namely, to postpone or refuse the grant of registration 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. It follows, therefore, that if a person becomes entitled to be registered immediately, as provided in s 21(4), no question of lack of equivalence in the occupation in which registration is sought can arise. The MR Act provides, in effect, a deemed equivalence in occupations in such circumstances. Whether room is left for the registration authority to impose conditions under s 20(5) “to achieve equivalence of occupations” remains to be considered.

103               The “mutual recognition principle” set out in s 17 of the MR Act is the expression of a statutory presumption that a person registered in one State for an occupation is entitled to be registered in a second State for the equivalent occupation and pursuant to that presumption a further entitlement to carry on the occupation in the second State arises from the act of lodging a notice under s 19 seeking registration in the second State for that occupation. The deemed entitlement to registration may be overtaken by the registration authority refusing to grant registration within one month of lodgment of the notice on the ground that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by imposing conditions.

104               Under s 39(1) of the MR Act it is the duty of a local registration authority to facilitate the operation of Pt 3 of the MR Act and, in particular, to make use of the power to impose conditions in such a way as to promote the “mutual recognition principle”, that is, to promote the entitlement of a person registered in one State for an occupation to be registered in the second State for the equivalent occupation. The object of the MR Act is to facilitate interstate recognition of occupations; to provide a presumptive right to carry on occupations interstate; and to impose criteria and strict time limits to be observed by State registration authorities in determining whether a right to carry on an occupation in one State is to be recognised in another. In default of the exercise of rights and duties imposed or provided by the MR Act in respect of a registration authority, the MR Act directs that the registration authority is to grant registration to a person who has duly lodged a notice complying with the requirements of the MR Act.

105               The MR Act applies to circumstances circumscribed by the definitions set out in the MR Act which in turn establish the grounds on which the presumptions and deeming provisions of the MR Act are based. In summary the MR Act applies to an occupation which may be carried on only by persons who, by reason of their attainment of a particular qualification, are approved or licensed under legislation that has been enacted for the control of such an occupation and for the establishment of registration authorities in connection with the regulation of the carrying on of that occupation.

106               Thus the MR 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.

107               Furthermore, the MR Act assumes that a registration authority established by such legislation will be well aware of the limits of the occupation it regulates by act of approval, licensing, certification, or authorisation and will be able to determine promptly whether an occupation described in a notification given to it under s 19 of the MR Act is equivalent to the occupation it controls.

108               The determining provision of s 21(4) operates to serve the object set out in s 3 of the MR Act by removing delay in recognition as a possible impediment to the ready offer of services by providers thereof in a national market and to make plain to registration authorities the degree of importance the MR Act attaches to the object of the MR Act being met and to the duties of a registration authority set out in s 39 of the MR Act being performed.

109               The determination by s 21(4) of the MR Act that a person is entitled to be granted “substantive” registration when a registration authority fails to act within the time prescribed in s 21(3) is a means employed by the MR Act to promote its purpose by presuming that the relevant occupations are equivalent or that, if necessary, such equivalence may be achieved by the imposition of conditions.

110               In the matter under “appeal” the Board did not postpone or refuse the grant of registration within one month after the respondent lodged the notice with the Board under the MR Act. Pursuant to s 21(4) of the MR Act the respondent was entitled to be registered. The only decision to be made by the Board was whether any conditions were to be imposed on that registration. By letter dated 27 January 1998 the Board advised the respondent that the certification he had been granted in Western Australia on 7 December 1994 was sufficient to permit the respondent to carry on his occupation in respect of all mines then existing in the State including “surface coal mines”. The Board advised that there was no underground coal mine in the State. In terms the letter advised the respondent that he had not been registered, notwithstanding his entitlement under the MR Act to be registered.

111               Implicit in the failure of the Board to register the respondent was a refusal to decide what conditions, if any, were to be imposed pursuant to s 20(5) of the MR Act on the grant of the “substantive” registration. Pursuant to s 34(2) of the MR Act and ss 3(3), 25(5) of the AAT Act, such a refusal to decide was a “decision” able to be reviewed by the Tribunal. Review of that decision required the Tribunal to decide, in lieu of the Board, whether conditions were to be imposed on the registration, inter alia, for the purpose of achieving equivalence between the occupation for which registration was sought in Western Australia and the occupation for which the respondent was registered in South Australia.

112               The Tribunal noted that the occupation in connection with which the Board was empowered by the Mines Safety and Inspection Act to provide certification was that of First Class Mine Manager. As noted earlier in these reasons, that appears to have been a certification already granted to the respondent under repealed legislation and continued by transitional provisions of the Mines Safety and Inspection Act. The Tribunal decided, however, that the occupation for which the respondent had been granted certification in South Australia, namely, “(Restricted) Mine Manager’s Certificate of Competency, First Class…Restricted to Coal Mines” required a restriction to be imposed on the certification granted in Western Australia to achieve equivalence in the occupations. The effect of further certification of the respondent by the registration authority in South Australia on 1 September 1995 stating that the respondent was competent to carry on the occupation of First Class Mine Manager (Metalliferous) was not discussed.

113               It follows from the foregoing that I agree with French and Carr JJ that the arguments submitted on the first four of the “questions of law” recited must be rejected.

114               Furthermore, I am of the opinion that the arguments submitted by the Board on the final “question of law” must also be rejected. At the review hearing, the Board requested the Tribunal to make a declaration pursuant to s 31(2) of the MR Act that the occupations carried on in the two States to which the notice related were not equivalent. Apparently it was submitted to the Tribunal that the Tribunal could be satisfied in the terms required by ss 31(2)(b)(ii), (iii), that an activity the respondent was able to carry on in the occupation for which he was registered in South Australia, to wit, management of an underground coal mine, could not be carried on in Western Australia without exposing persons to a real risk to their safety. It may be noted in passing that material before the Tribunal recorded that the respondent had had nine years’ experience in underground coal mines in New South Wales. The Tribunal rejected the submission of the Board and stated that having found that the respondent was entitled to be registered in Western Australia it was neither necessary nor appropriate for the Tribunal to make a declaration in the terms proposed by the Board.

115               By s 21(4) the MR Act had determined that the respondent was entitled to “substantive” registration, and that “no objection may be taken to the notice” he had lodged with the Board on the ground provided in s 23(1)(c), namely, that the occupation for which registration was sought was not an equivalent occupation. The “decision” of the Board before the Tribunal for review was not a decision made by the Board under s 21(3) of the MR Act to refuse registration upon the ground provided in s 23(1)(c), namely, that the occupation in which registration was sought was not an equivalent occupation. The decision under review was the refusal to decide whether conditions should be imposed on the substantive registration to which the respondent was entitled pursuant to the terms of s 21(4) of the MR Act. Review of that decision would not permit the Tribunal to exercise a power under s 21(3) of the MR Act not exercisable by the Board when it “made” the decision under review, (see AAT Act, s 43(1)), and decide whether the respondent was to be granted or refused registration.

116               For the reasons which follow it is unnecessary to determine whether s 31(2), which reposes a further function in the Tribunal concurrent with the function of conducting a review, authorised the Tribunal to make a declaration that the occupation for which registration had been granted to the respondent in South Australia and the occupation for which he was entitled to be registered in Western Australia pursuant to s 21(4) were not equivalent occupations. (cf s 30(3)) If the Tribunal was empowered to make such a declaration in this matter, the exercise of that power was in the discretion of the Tribunal and the Tribunal was not persuaded that a declaration should be made. The Tribunal having in mind, it would seem, the provisions of ss 31(3), (4) of the MR Act which stipulate that a declaration is to be published in the Gazette and distributed nationally, was not prepared to make a declaration when the Tribunal did not have before it the views of other persons or bodies whose interests were likely to be affected by such a declaration. That was a relevant consideration for the Tribunal to take into account in exercising its discretion. Any views the Tribunal proffered on the strength of evidence required to support the making of such a declaration were irrelevant, the Tribunal having determined on other grounds that it was inappropriate to exercise the power.

117               No error of law in the conduct of the review proceeding by the Tribunal has been demonstrated and I would dismiss the “appeal” with costs.

Associate:

Dated:              5 July 2000

REASONS FOR JUDGMENT

CARR J:

Introduction

118               This is an appeal from a decision of the Administrative Appeals Tribunal, made on 25 June 1999, whereby the Tribunal decided that the respondent was entitled to registration as a First Class Mine Manager and to a First Class Mine Manager’s Certificate which was to be issued by the applicant under Regulation 2.21 of the Mines Safety and Inspection Regulations 1995 (WA).  The Tribunal set aside a decision by the applicant to refuse such registration.  The respondent’s application for registration was made under the Mutual Recognition Act 1992 (Cth), as adopted in Western Australia by the Mutual Recognition (Western Australia) Act 1995 [the operation of which was extended by the Mutual Recognition (Western Australia) Amendment Act 1997 and the Mutual Recognition (Western Australia) Amendment Act 1998 to 25 February 1999 and 28 February 2001 respectively.]  I shall refer to the relevant Act, i.e. the Commonwealth Act, as “the MR Act”.

Factual Background

119               Between 1973 and 1983 the respondent was employed by Clutha Development Pty Ltd as a tradesman and engineering fitter at two of that company’s collieries.  From 1978 to the present, the respondent also provided contract engineering and other services (including mine management), initially as a sole trader, then in partnership, and, currently, through two family companies.  In 1992, he graduated from Ballarat University College with a Bachelor of Engineering degree in Mining Engineering.

120               On 21 May 1993, the respondent was issued with a “restricted first-class mine-manager’s certificate” by the Board of Examiners for Mine Managers, Department of Mines and Energy, South Australia, pursuant to the Mines and Works Inspection Act 1920 (SA) (“the South Australian Act”) and regulations made under that Act (“the South Australian Regulations”).  Clause 8(2) of Schedule 1 to the South Australian Regulations required a restricted certificate to contain a statement of the particular mine or particular class of mines that the holder of the certificate was entitled to manage.  The certificate issued to the respondent permitted him to work in South Australia as the manager of a mine (see Reg 6 of the South Australian Regulations).  Such permission was expressly restricted to coal mines by a statement to that effect on the certificate [AB 12], but (subject to the validity of the applicant’s submissions to the contrary) would appear to extend to both open-cut and underground coal mines.  There is only one coal mine in South Australia – the open-cut mine at Leigh Creek.  There are no underground coal mines in Western Australia.

121               On 7 December 1994 the respondent was issued with a “First Class Mine Manager’s Certificate of Competency” pursuant to Regulation 3.4 of the Mines Regulation Act Regulations 1976.  This certificate entitled the respondent to manage any mine (including an underground mine) in Western Australia, other than a coal mine – see s 25 of the Mines Regulation Act 1946.  That exclusion was worked by s 19(2) of the Coal Mines Regulation Act 1946 (W.A.) which provided that a person was not qualified to be a manager of a coal mine unless he was registered as the holder of a first class certificate under that Act.  The Mines Regulation Act and the Coal Mines Regulation Act were repealed by the Mines Safety and Inspection Act 1994 (WA) which came into operation on 9 December 1995.  By clause 2 of Schedule 1 to that Act the continuity of status, operation and effect of the respondent’s certificate under the Mines Regulations Act Regulations were preserved.

122               The Mines Safety and Inspection Regulations 1995 (“the WA 1995 Regulations”), made under the Mines Safety and Inspection Act, prescribe the academic qualifications and practical experience required for the issue by the applicant of various categories of certificates of competency, including a “first class mine manager’s certificate”.  There are two types of such certificate.  One is a first class mine manager’s certificate for underground coal mines.  The other is simply a first class mine manager’s certificate.  Regulation 2.21 of those Regulations prescribes the academic qualifications and practical experience required for the issue of a first class mine manager’s certificate.  Regulation 2.21(4) makes special provision for the practical experience requirements in the case of an application for a first class mine manager’s certificate for underground coal mines, as distinct from an application for such a certificate in respect of any other type of mine.  Regulation 2.35 in effect provides that a first class mine manager’s certificate qualifies its holder to manage an underground mine.  Thus, as at 17 December 1997, the respondent was qualified to manage any mine (other than a coal mine) in Western Australia, whether open-cut or underground, by virtue of the continued effect of the First Class Mine Manager’s Certificate of Competency under the Mines Regulation Act 1946 and the Mines Regulation Act Regulations 1976.  It would seem that the applicant had at some time issued to the respondent a first class mine manager’s certificate under the W.A. 1995 Regulations (see its letter set out below).  If so, that would have qualified him also to manage open-cut (but not underground) coal mines.

123               On 17 December 1997, the respondent lodged with the applicant a standard form of notice as an application for registration in accordance with s 19 of the MR Act in Western Australia as the holder of a “First Class Mine Manager’s Certificate of Competency for Coal Mines”.  That notice was accompanied by documentation evidencing his existing registration in South Australia and a statutory declaration verifying the contents of the notice and the authenticity of the existing registration documents, as required by s 19(4) and (5) of the MR Act.

124               On 27 January 1998, the respondent received a letter from the Chairman of the applicant notifying him of the applicant’s decision.  The letter was as follows:

“I apologise for the delay incurred over the Christmas period in obtaining information from South Australia and NSW pertinent to your application for registration of your occupation in Western Australia.

First, let me assure you that your WA First Class Certificate of Competency dated 7 December 1994 enables you to carry on your normal occupation at all existing mines in this State, should you apply for a mine manager’s position in Western Australia.

As regards your inquiry about the WA First Class Mine Manager’s Certificate for coal mines, I advise that there are no underground coal mines in WA (and probably wont (sic) be in the foreseeable future) and thus there is no such occupation in this State for which to register.  All present WA coal mines are surface coal mines for which your WA First Class Certificate of Competency satisfies the legislative requirements of the new Mines Safety and Inspection Act and Regulations 1995.”

125               In my view, that letter evidences the applicant’s decision to refuse to register the respondent in the equivalent occupation for which he was registered in South Australia (whether, in view of the time which had expired since the respondent had lodged the above notice, the applicant had any discretion in that regard, is discussed below) and also its decision either to refuse to impose conditions by which such equivalence could be achieved or to consider the imposition of such conditions.

126               On 4 February 1998 the respondent lodged an application with the Administrative Appeals Tribunal for review of the above decision.

127               On 25 June 1999 the Tribunal set aside the Board’s decision and decided that the respondent was entitled to be granted a first class mine manager’s certificate to be issued under Regulation 2.21 of the W.A. 1995 Regulations subject to the condition that that certificate be restricted to coal mines of any kind, including underground coal mines and open-cut coal mines, with effect from 17 January 1998.

Statutory Framework

128               Section 4 of the MR Act defines “occupation” in the following way:

“ “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;”

129               The other relevant provisions of the MR Act are as follows:

“17.(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.

            . . .

18.(1)  This part applies to individuals and occupations carried on by them.

(2) This part extends to an occupation carried on by an individual, where the individual is subject to more than one system of registration or more than one local registration authority in a State, and accordingly this Part applies in relation to each such system of registration and each such authority.

(3) Without limiting subsection (2), an example of such an occupation is that of a legal practitioner, which involves both the admission as a legal practitioner by a court and the issue of a practising certificate by another body.

Division 2 – Entitlement to registration

Notification to local registration authority

19.(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.

. . .

20.(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.”

130               Section 21(1) provides that registration must be granted within one month after a notice is lodged with the local registration authority under s 19.  Section 21(3) of the MR Act authorises the local registration authority to postpone, or refuse the grant of registration, provided that it does so within one month after the lodgment of the s 19 notice.  Section 21(4) provides as follows for the situation where the authority does not, within that one month period, grant, postpone or refuse registration:

“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.

General principles

29.(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).

. . .

Declarations by Tribunal

31.(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.

   (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."

The Tribunal’s Decision

131               In order to decide whether or not the respondent was entitled to have his registration in South Australia recognised in Western Australia, the Tribunal examined the relevant legislation in both States.  It then proceeded to consider the application of the MR Act in the circumstances of the present case. 

132               The Tribunal determined that it was suitable to apply the mutual recognition principal under s 17(1) of the MR Act to the present situation because it involved an “occupation” (as defined in s 4(1) of the Act), for which a person has been “registered in the first State”.  The relevant occupation was “mine manager” or “coal mine manager”.  In both Western Australia and South Australia, so the Tribunal reasoned, this was an occupation that might only be carried on by “registered persons” i.e. persons certified or approved by the “local registration authority”.  In South Australia, this authority was the Board of Examiners for Mine Managers and in Western Australia it was the applicant.  

133               The Tribunal determined that the respondent had lodged a valid and proper notice, which fully complied with the formal requirements of s 19 of the MR Act, with the relevant local registration authority in Western Australia.  It also found that the respondent had lodged this notice on 17 December 1997.  The applicant does not challenge these findings.  The Tribunal found that the relevant local registration authority, i.e. the applicant, neither granted registration to the respondent nor took action under s 21(3) of the MR Act (i.e. to postpone or refuse the grant of registration to the respondent) within the period of one month after he lodged his s 19 notice.  From this the Tribunal concluded that the respondent was entitled to registration immediately at the end of that period i.e. 17 January 1998, pursuant to s 21(4).  The Board then turned to the question of what was “the equivalent occupation”.  After reviewing the activities which the respondent’s South Australian registration authorised and examining the regulatory regime in Western Australia, the Tribunal decided that to achieve equivalence between the occupations in the two States it would be necessary to impose a condition on the respondent’s registration in Western Australia whereby he would be registered in respect of coal mines only, whether open-cut or underground.  The applicant had only opposed such registration in respect of underground coal mines.

Grounds of Appeal

134               The applicant appeals against the Tribunal’s decision on the following grounds:

(a)        the Tribunal erred in not reaching a finding on the evidence before it whether the respondent’s appeal to the Tribunal was frivolous or vexatious or was an abuse of process;

(b)        the Tribunal acted unreasonably and failed to take a relevant circumstance into account in finding that the activities authorised to be carried out under the respondent’s certificate of competency included acting as the manager of any coal mine in South Australia, whether it be an open-cut coal mine or an underground coal mine, in circumstances where, for the purposes of the decision, there are not and have never been underground coal mines in South Australia;

(c)        that the Tribunal misinterpreted or misapplied s 29 of the Mutual Recognition Act 1992, acted unreasonably and failed to take a relevant circumstance into account in finding that in order to achieve equivalence between the occupations of first class mine manager in Western Australia and first class mine manager (restricted to coal mines) in South Australia, a condition should be imposed which entitled the respondent to manage underground coal mines in Western Australia in circumstances where the first class mine manager’s certificate in South Australia never in fact related to underground coal mines;

(d)        the Tribunal misinterpreted or misapplied s 31 of the Mutual Recognition Act 1992, acted unreasonably and failed to take a relevant circumstance into account in failing to find that it should specify a condition which limited the respondent’s first class mine manager’s certificate in Western Australia to entitle him to manage only open-cut coal mines in circumstances where the first class mine manager’s certificate in South Australia in fact related only to open-cut mines;

(e)        that the Tribunal misinterpreted or misapplied s 31(2) of the Mutual Recognition Act 1992, acted unreasonably and failed to take a relevant circumstance into account in failing to make a declaration that the occupation of coal mine manager in South Australia is not equivalent to the occupation of an underground coal mine manager in Western Australia in circumstances where the unchallenged evidence before the Tribunal was that:

(i)         the qualifications necessary to manage an underground coal mine safely are different from and of a greater degree than those which are sufficient to manage an open-cut coal mine safely;

(ii)        if a manager of an underground coal mine were not properly qualified, workers in the mine could reasonably be expected to be exposed to a threat to their health and safety.

Ground [a] – Whether the respondent’s application to the Tribunal was frivolous, vexatious or an abuse of process

135               In his oral submissions, Mr G T W Tannin who (with Ms K E McDonald) appeared for the applicant, said that this ground was “… only illustrative of the greater difficulty that the respondent (he must have meant applicant) is concerned about which is the subject of grounds [d] and [e]”.  As can be seen above, in grounds [d] and [e], the applicant asserts that the Tribunal misinterpreted or misapplied s 31 of the MR Act, acted unreasonably and that the making of the decision was an improper exercise of power when it failed to impose the condition referred to in ground [d] or make the declaration referred to in ground [e].  Mr Tannin described ground [a] as “… the most ambitious of our grounds …”.

136               Section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal may at any stage of a proceeding, if it is satisfied that an application is frivolous or vexatious, dismiss the application. 

137               It has been held that no appeal lies under s 44 of the Administrative Appeals Tribunal Act from the failure of the Tribunal to exercise the power to dismiss under s 42B, at least at the stage before the Tribunal has made its decision in relation to the administrative decision under review – see Australia Postal Corporation v Matsuko (unreported, Federal Court of Australia, Olney J, 14 May 1996). 

138               In my view, there is something artificial about elevating the Tribunal’s supposed refusal to dismiss the application under s 42B to the status of a question of law on which a party may appeal to this Court.

139               If that application (i.e. the application before the Tribunal for review of a decision) was so devoid of merit as to be frivolous or vexatious, then, on appeal, it is likely that such appeal would be allowed on the less stringent test applicable to other grounds of appeal.  However, it may be that cases will present themselves with legal merit but which involve so little in terms of monetary or other worth to the party, that, whatever the merits, the application should have been dismissed and not allowed to proceed to a hearing.

140               I shall assume, but without deciding, that this ground involves a question of law.  The question of law would seem to be whether the Tribunal’s discretion miscarried.

141               The applicant’s case before us in relation to this ground was based on the proposition that the respondent was seeking to obtain recognition in Western Australia of his South Australian qualification for the purpose of obtaining similar recognition under the MR Act in New South Wales and Queensland.  The evidence before the Tribunal (Exhibit T5 – AB 7) was that the relevant authority in New South Wales had, on 13 January 1998, imposed a condition on the registration of the respondent’s South Australian qualification restricting such registration to open-cut coal mines.  In those circumstances, it is difficult to see how the respondent would be able to use his Western Australian registration to obtain unconditional registration (i.e. to include underground coal mines) in New South Wales.  The applicant relied upon the fact that there were no underground coal mines in either South Australia or New South Wales as a matter which indicated the respondent’s “ulterior purpose”.

142               If an applicant’s purpose in availing himself or herself of the rights conferred by the MR Act are relevant (which I doubt) and if the respondent’s purpose is to use registration in Western Australia to obtain registration in any other State, that purpose seems to me to be entirely consonant with the mutual recognition principle described in s 17 of that Act.

143               I do not think that the applicant has demonstrated that the Tribunal’s discretion miscarried when it declined to exercise the power to dismiss the application before it under s 42B.  Given its views as to the underlying merits of the application, it would have been extraordinary for it to take such a course.  This is particularly so when one bears in mind the fact that by reason of the applicant’s default in granting, postponing or refusing registration within one month of lodgment by the respondent of his notice, the respondent had a statutory entitlement to registration.  I would reject this ground.

Ground [b] – Unreasonableness and failing to take the relevant circumstance into account

144               The principal contentions advanced by the applicant under this ground may be summarised as follows:

·                      the South Australian Board of Examiners did not in fact examine the respondent’s competency to manage underground coal mines;

·                      the respondent cannot be deemed to have been registered as an underground coal mine manager in South Australia, because no such mines exist;

·                      the definition of “mines” in the South Australian Act, which includes both open-cut and underground mines, should not be “blindly applied in the context of mining qualifications and registration without reference to the surrounding facts existing in relation to each certificate holder;”

·                      the disciplines actually tested by the Board of Examiners should determine the qualifications of the certificate holder; and

·                      it was manifestly unreasonable for the Tribunal to rely upon assertions contained in letters from the South Australian Board of Examiners and the definition of “mines” in the South Australian Act for the purpose of determining the scope of the respondent’s qualifications so as to allow the respondent, who was not examined by the South Australian authority in relation to underground coal mines, to gain a qualification to manage underground coal mines in circumstances where there were no underground coal mines in which to work.

145               In my view, given the Tribunal’s finding of fact as to when the respondent lodged his notice under s 19 of the MR Act, and the fact that the applicant neither granted registration nor took action under s 21(3) within one month of such lodgment, s 21(4) operated so as to confer upon the respondent an entitlement to registration immediately on 17 January 1998.  The same subsection provides that 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.  There is no suggestion of fraud in this matter.  The only relevant objection, in my opinion, is that in s 23(1)(c) namely:

“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.”

146               I would not construe s 21(4), when read with s 23(1)(c), as precluding the imposition of conditions upon registration.  It is clear that s 21(4) confers an entitlement to registration.  But s 20(1) shows that such entitlement is “to be registered in the equivalent occupation”.  Section 20(5) relevantly provides that the local registration authority (i.e. the applicant here) may impose conditions on registration that are necessary to achieve equivalence of occupations.

147               Accordingly, apart from the imposition of conditions under s 20(5) or making a declaration under s 31(2), there was nothing for the Tribunal to decide in relation to registration, other than to confirm that the respondent was entitled to registration.  In my opinion, there was no error of the two types asserted by the applicant in ground [b].  The applicant’s real complaint is that the Tribunal imposed a condition which entitled the respondent to manage underground coal mines in Western Australia and did not impose a condition which limited his certificate so as to entitle him to manage only open-cut mines.  Those complaints form the subject matter of grounds [c] and [d] in respect of which very similar submissions were advanced to those put forward in relation to ground [b].  I now turn to those further grounds.

Grounds [c] and [d] – Whether the Tribunal erred in law by not imposing a condition limiting registration to open-cut coal mines

148               In addition to the submissions summarised above, the applicant relied upon various references in Part 3 of the MR Act to “carrying on” an occupation as justifying a construction that the occupation for which a person wishes to be registered in a second State must be one actually “carried on” by him or her.  Those references can be found in ss 16, 17, 18, 20 and 27.  In particular, the applicant relied on s 18 of the Act which provides that Part 3 “applies to individuals and occupations carried on by them”.

149               It can be seen that almost all of these references are to carrying on an equivalent occupation in the second State.  Section 16(2) refers to 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.  Section 17(1) refers to a person who is registered in the first State for an occupation to being entitled pending registration to carry on the equivalent occupation in the second State.  Section 17(2) refers to laws regulating the manner of carrying out an occupation in the second State being a permitted exception to the mutual recognition principle, so long as they apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State.  Section 20(4)(a) refers to laws which apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State.  Section 27(1) enables a person who has “deemed registration” in the second State to carry on the occupation in the second State as if the deemed registration were substantive registration in that State.  Section 27(3) refers to the carrying on of the occupation in the second State.  The only reference to “carrying on” which is not confined to the second State is s 18(1) which provides:

“This Part applies to individuals and occupations carried on by them.”

150               The applicant contended that s 29(1) which provides that:

“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)”

as if the phrase “activities authorised to be carried out” meant “activities which the person is authorised by virtue of being in fact qualified to carry out.

151               There are thus two strands to the applicant’s arguments.  First, that an applicant for registration in the second State must be actually carrying on the occupation in the first State and, secondly, that the person is in fact qualified to perform the activities involved in that occupation. 

152               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 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.

153               In my view, the MR Act does not require that a person who is registered in the first State for an occupation be actually carrying on such occupation before being entitled to registration in the second State.  There is no such express requirement.  As I have noted above, the only reference to “carrying on” which is not confined to the second State is s 18(1).  I do not consider that that subsection requires the construction advanced on behalf of the applicant.  The function of s 18(1) is to identify the scope of the application of Part 3.  Its function can be compared to s 8(2) in relation to goods.  It is also descriptive of Part 3.  In my opinion, s 18(1) does not imply a requirement that a person actually carry on an occupation in the first State.  The core feature of Part 3 is the application of the mutual recognition principle.  That principle is identified by s 17(1) in terms of a person who is registered in the first State for an occupation being entitled, after notification, to be registered in the second State for the equivalent occupation.

154               Nor do I accept the second strand of the applicant’s argument i.e. that the phrase “activities authorised to be carried out” means “activities which the person is authorised by virtue of being in fact qualified to carry out”.  The section expressly directs attention to the activities authorised to be carried out under each registration and not to any specific qualifications of the person who is registered.  To construe s 29(1) in the manner contended for by the applicant would, in my view, substantially undermine the whole rationale for the MR Act.

155               In this case the Tribunal concluded, correctly in my opinion, that the activities authorised to be carried out by the respondent under the South Australian registration included the management of both open-cut and underground coal mines.  It was a certificate restricted to coal mines.  It was open to the Tribunal to find that by imposing a condition that the certificate be restricted to coal mines, the activities authorised to be carried out under the Western Australian registration would be substantially the same as those authorised to be carried out under the South Australian registration.

156               The applicant complained that the Tribunal should not have relied on the letters from the South Australian registration authority to the effect that if an underground coal mine commenced operations in South Australia, the respondent would be qualified to manage it. 

157               Mr Tannin went so far as to suggest that there was no regulatory standard in South Australia for underground coal mining.  I shall deal with that particular submission immediately.  In my opinion, it cannot be upheld.  The definition of “mine” in s 4(1) of the South Australian Act [“mine” means any place in, on, or under which any mining operation has been or is being carried on …] quite clearly includes an underground mine and does not distinguish between a metalliferous and a coal mine.  The term “mining operation” is defined as meaning any operation carried on in the course of searching for or recovering any mineral.  “Mineral” is defined as including coal.  By the regulatory regime in South Australia the respondent is entitled to manage an underground coal mine, should one be developed.

158               The applicant relied upon the fact that both the Mines Safety and Inspection Act and the regulations made under that Act imposed a far more strict regime of qualification in relation to underground coal managers than applied to open-cut coal managers.

159               It is clear that the Western Australian regime is stricter in relation to the management of underground coal mines than it is in relation to the management of open-cut coal mines.  But the occupation of managing both open-cut and underground coal mines is the same in South Australia as it is in Western Australia.  The whole point of the MR Act is that registration in the first State is, subject to fraud and questions of safety, to be taken at its face value.  For the foregoing reasons I would reject the applicant’s grounds (c) and (d).  The Tribunal did not act unreasonably or misinterpret or misapply s 29 or s 31(1) of the MR Act.  Questions of safety arise in the context of declarations under s 31(2) of the MR Act.  That was the subject of ground (e), to which I now turn.

Ground (e) – Whether the Tribunal should have made a declaration

160               In my view, s 31(2) of the MR Act confers power on the Tribunal to make a declaration that occupations in two States are not equivalent, even if the activities involved in the occupations are substantially the same.  Section 31(2)(a) deals with the situation where the activities involved in the occupations are not substantially the same.  Then there is an alternative basis for a declaration provided by s 31(2)(b).  That alternative situation arises where, relevantly:

·          a particular activity or class of activity is a material part of the practice of a person registered in the first State for the occupation;

·          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 second State to a “real threat” to their health or safety; and

·          it is not practicable to protect the health or safety of such persons from that threat by regulating the manner in which services in the occupation are provided

and the Tribunal is satisfied that registration should not entitle the registered person to carry on that particular activity or class of activity in the second State.  Applying s 29(2)(b) to the circumstances of the respondent, I think it can be said that the activity of underground coal mining is a material part of the respondent’s practice, even though he is not currently engaging in the management of an underground coal mine.  I think that the word “practice” identifies the business to which the respondent belongs (see the New Shorter Oxford English Dictionary at p 2317) i.e. the management of coal mines whether above or below ground.  One can have a “practice” in which one is not currently engaged – see the example in the New Shorter Oxford English Dictionary “W C Williams my first job was to resume my practice of medicine”.

161               The reference, in s 31(2)(ii) to “… carried out by a person not conforming to the appropriate standards …” is not entirely clear.  It could mean a fully qualified person carrying out activities contrary to, for example, the relevant regulations imposing standards.  Or it could mean that the person does not himself or herself conform to the appropriate standards for the activity in question.  In my view, the latter construction is preferable because the matter of the manner in which services in the occupation are provided is dealt with by s 31(2)(iii).

162               The Tribunal declined to make a declaration under s 31(2)(b) because there was not the kind of “strong evidence” before it to form the basis of the satisfaction referred to in the sub-paragraph.  That was one reason.  The second reason was that there was no evidence before it as to the views of other persons or bodies whose interests would be likely to be affected by the making of such a declaration.  It saw the need for there to be “particularly strong evidence”, relying upon some observations to that effect made by Deputy President B J McMahon in Re Cleary v Nurses Board of the Northern Territory (1996) 41 ALD 395 at 408.  Deputy President McMahon construed the words “real threat” as amounting to “imminent peril”.

163               It was here that I consider that the Tribunal fell into error.  The question which the Tribunal should have asked itself was whether the management of an underground coal mine, if carried out in Western Australia by a person who did not have the appropriate underground coal mining qualifications, could reasonably be expected to expose other persons to a real threat to their health or safety.  It should then have examined whether it was practicable to protect the health or safety of those other persons from that threat by regulating the manner in which underground coal mining services are provided. 

164               The Tribunal had before it the evidence of Mr M J Knee [AB 108-111].  Mr Knee explained the different risks inherent in mining an open-cut coal mine compared to those involved with managing an underground coal mine.  When asked about his concerns if a person were not suitably qualified to manage safely an underground coal mine he responded:

“I’d be concerned that there might well be fatalities, at least serious injuries, because of that lack of expertise and experience.”

165               In my view, the Tribunal should have examined whether, in the circumstances posited, it might reasonably be expected that persons would be exposed to a “real threat” to their health or safety.  The expression “real threat” does not, in my opinion, mean an “imminent threat”; it simply means a threat that is “substantial” as distinct from “remote”, “insubstantial” or “far-fetched” – see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407 and 429. 

166               Since preparing the above reasons in draft form I have had the advantage of reading drafts of the reasons prepared by French J and Lee J respectively.  I regret that I differ, to some extent, with them over the application of s 21(4) of the MR Act, when read with s 31, to the facts of this matter.  It would seem that we all agree that s 21(4) would not have precluded the applicant from imposing conditions upon the registration sought by the respondent, to achieve equivalence of occupations.  Where we differ is whether it was open to the Tribunal, on the facts of this matter, to make a declaration pursuant to s 31(2) of the MR Act. 

167               In my opinion, the “review” referred to in s 31(1) is a review under the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) of a decision of a local registration authority in relation to its functions under the MR Act – see s 34(1).  I can find no other source of power for the Tribunal to conduct a review.  The term “decision” has the same meaning as in the AAT Act [see s 34(2)], where it is defined both very widely and inclusively. 

168               As French J has pointed out in his reasons, s 31(2)(b) despite its language, has nothing to do with the equivalence of occupations.  It is concerned with issues of public health and safety. 

169               In my opinion, notwithstanding s 21 (4), it was open to the Tribunal (just as it was open to the applicant) to specify or describe conditions that would achieve equivalence.  Furthermore, I would read s 31(1) with s 30(3) as authorising the Tribunal to make any of the orders or declarations referred to in s 31(1) or (2) in relation to the respondent specifically.  That is, on the basis that the respondent, being entitled by s 21(4) to registration as from 17 January 1998, should be treated for the purposes of Part 3 Division 4 of the MR Act as a person “already registered” within the meaning of s 30(3). 

170               It seems to me that such a construction would advance all of the policy interests which we have identified in our respective reasons for judgment.

171               In my view, the applicant has identified error of law on the Tribunal’s part in its application of s 31(2)(b) of the MR Act.  I would allow the application, set aside the Tribunal’s decision and remit the matter to it for further consideration and determination according to law.

Associate:

Dated:                          2000