FEDERAL COURT OF AUSTRALIA
Dimitrijevich v Construction Occupations Registrar [2019] FCA 2173
ORDERS
Applicant | ||
AND: | CONSTRUCTION OCCUPATIONS REGISTRAR Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The decision of the respondent is set aside.
2. Subject to the payment of the prescribed fee under the Construction Occupations (Licensing) (Fees) Determination (ACT), the respondent issue to the applicant a Builders Licence Class A BCA - All classes with the condition on the licence “Only valid for work as a nominee” and without the three annotations on the licence set out in the respondent’s decision made on 5 April 2019.
3. The respondent pay the applicant’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ROBERTSON J:
Introduction
1 The applicant holds a licence under the Queensland Building Services Authority Act 1991 (Qld) (now the Queensland Building and Construction Commission Act 1991 (Qld)), that licence being issued by what is now the Queensland Building and Construction Commission. The licence class is “Builder – Open” and the licence grade is “Site Supervisor”. He sought registration in the Australian Capital Territory (ACT) under the Mutual Recognition Act 1992 (Cth).
2 The applicant’s registration was originally refused because a delegate of the ACT Construction Occupations Registrar found there was no equivalent licence in the ACT. The Registrar is the “local registration authority” of a State, defined in the Mutual Recognition Act to include the ACT, for the occupation of builder because he or she is appointed under s 103 of the Construction Occupations (Licensing) Act 2004 (ACT) and has the function conferred by that Act of registering persons in connection with their carrying on the occupation of builder in the ACT: see Mutual Recognition Act s 4(1).
3 A further relevant definition in the Mutual Recognition Act is that “Tribunal” is defined in s 4(1) to mean the Administrative Appeals Tribunal.
4 On 29 January 2019 the Administrative Appeals Tribunal set aside the decision of the respondent Registrar: Dimitrijevich and Construction Occupations Registrar (ACT) [2019] AATA 183. The Tribunal decided:
The decision under review is set aside and remitted to the respondent for reconsideration in accordance with the direction that it give effect to the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009.
5 The issue as framed by the applicant in this Court is whether the Registrar has given effect to that decision of the Tribunal, in part by deciding to include on the licence “further condition, modification, clarification or annotation”.
6 No appeal has been brought from the Tribunal’s decision.
The application for judicial review
7 The applicant relies on his further amended originating application, filed on 8 November 2019, which seeks the following relief under s 39B of the Judiciary Act 1903 (Cth) and, subject to an objection to competency filed by the respondent Registrar raising delay on the part of the applicant, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act):
1. A declaration that the conduct of the Respondent in failing to act under the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to give effect to the decision of the Administrative Appeals Tribunal (“the Tribunal”) on 29 January 2019 in the matter of Dimitrijevich and Construction Occupations Registrar (ACT) [2019] AATA 183 (“AAT Matter”) is invalid and/or unlawful;
2. A declaration that in order to give effect to the Tribunal’s decision in the AAT Matter, the Respondent was and is required to register the Applicant in the Australian Capital Territory in the terms specified in Schedule 25 to the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth) at Row 11, Column H, specifically: “Builders Licence Class A BCA - All classes Only valid for work as a nominee”: and in those terms only without further condition, modification, clarification or annotation;
3. An order in the nature of an injunction compelling the Respondent to give effect to the Tribunal’s decision in the AAT Matter by registering the Applicant in the Territory in the terms specified in Schedule 25 to the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth) at Row 11, Column H, specifically: “Builders Licence Class A BCA - All classes Only valid for work as a nominee”; and in those terms only without further condition, modification, clarification or annotation;
4. A declaration that the Respondent failed in its duty under the AAT Act to promptly and impartially give effect to the Tribunal’s decision in the AAT Matter;
5. A declaration that the respondent failed in its duty under the AAT Act to promptly and impartially give effect to the Tribunal’s decision in the AAT Matter, thereby unlawfully preventing the Applicant from pursuing, or having the capacity to pursue his equivalent occupation in the Territory under the Mutual Recognition Act 1992 (Cth);
6. Such further or other orders as this Court thinks appropriate; and
7. Costs on an indemnity basis.
8 In the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth) (Declaration) Schedule 25, entitled “Mutual recognition matrix – Builders (update 2006 matrix)” commences, relevantly, as follows:
Codes for statutes under which Builders’ licences are issued
1. …
2. …
3. Licences in this column issued under the Queensland Building Services Authority Act 1991 (QLD)
4. …
5. …
6. …
7. Licences in this column issued under the Construction Occupations (Licensing) Act 2004 (ACT)
8. …
9 Row 11, Columns A and H of the matrix in in Schedule 25 of the Declaration, with relevant context, are as follows:
A | … | H | … | |
First Jurisdiction | Second Jurisdiction | |||
… | ACT7 | … | ||
… | ||||
QLD | ||||
… | ||||
11 | Builder – Open Licence –Site Supervisor Grade | ... | Builders Licence Class A BCA - All classes Only valid for work as a nominee | … |
… | ||||
The content of footnote 7 is set out in [8] above.
10 BCA is defined in Schedule 25 as follows:
Codes for conditions, restrictions, inclusions and exclusions
…
BCA Specified classes of the Building Code of Australia. BCA means the Classification of Buildings and Structures under Part A3 of the Building Code of Australia as amended and published by the Australian Building Codes Board.
…
The decision of the Tribunal
11 It is important to bear in mind what decision the Tribunal was reviewing. The decision under review was the Registrar’s refusal of the applicant’s registration because a delegate of the Registrar found there was no equivalent licence in the ACT.
12 As I have said, the Tribunal set aside the decision and remitted it to the Registrar for reconsideration, with a direction that the Registrar give effect to the Declaration.
13 The Tribunal summarised its decision at [3], as follows:
Ultimately, because the Minister has declared that the licence held by the applicant is equivalent to a Builders Licence Class A licence in the ACT,1 subject to a limitation, and a declaration by the Minister is binding on this Tribunal, the applicant is successful. This is despite cogent arguments by the Registrar that the occupations are not, in fact, equivalent.
The footnote, being footnote 1 to the Tribunal’s reasons, was as follows, reflecting the balance of Row 11, Column H of the matrix in Schedule 25 of the Declaration reproduced at [9] above:
All classes only valid for work as a nominee (Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009, cl 6 and Schedule 25, item 11).
14 At [10], the Tribunal said that of particular significance in the case before it was that s 29(3) of the Mutual Recognition Act stated the provisions of that Act dealing with equivalence of occupations had effect subject to any relevant declarations in force under the Division. Section 30 stated that the Part was to be given effect in accordance with relevant declarations made under the Division regarding equivalent occupation, and further stated that if a declaration made by the Tribunal and a declaration made by Ministers were inconsistent, the ministerial declaration prevailed.
15 At [11]-[12], the Tribunal stated that Ministers from two or more states or territories may jointly declare by notice in the Gazette that specified occupations are equivalent, and may specify conditions that will achieve equivalence, referring to s 32(1) of the Mutual Recognition Act. A declaration had been made about builders in the Declaration, the Tribunal stated. The appropriate local registration authority was required to give effect to the Declaration by s 32(4).
16 The Tribunal set out clauses 6 and 7 of the Declaration, as follows:
6. Equivalent occupations Shotfirers and Pyrotechnicians, Pest and Weed Controllers, Building Occupations, Builders (2006 Update)
(1) The occupation which may be carried on only by a person granted a registration, in the jurisdiction, described in Column A of the Schedule (first jurisdiction) is equivalent to the occupation which may be carried on only by a person granted a registration, in a jurisdiction, described in the same row of the Schedule (second jurisdiction), subject to any conditions, limitations or restrictions indicated in the Schedule.
7. Declaration not to limit powers of a registration authority
(1) Nothing in this Part is intended to affect the powers, under the Mutual Recognition Act 1992, of a registration authority in a second jurisdiction to impose conditions on a registration, provided that the conditions imposed do not relate to the activities authorised to be carried out under the registration unless such conditions applied to the person's registration in the first jurisdiction.
17 I would add what immediately follows in the Declaration:
Notes:
…
Licences covered by this declaration are licences that are issued to natural persons, not licences issued to companies.
This declaration and any subsequent declarations will be reviewed for accuracy each year. Declarations and any revised declarations will be published on the COAG mutual recognition website and the websites of the relevant licensing authorities.
18 At [15], the Tribunal stated that the Declaration set out equivalent occupations for builders at Schedule 25, and referred to Row 11 of the matrix in that schedule as I have set out at [9] above.
19 The Tribunal noted at [21] that the Registrar acknowledged he acted beyond power and the better or preferable decision was for the registration to be granted. At [22], the Tribunal noted the Registrar’s argument that granting registration in the form allowed by the Declaration was problematic because the licence that would be granted would allow the applicant to do work the Registrar stated he was not qualified to do.
20 At [23], the Tribunal noted another argument put by the respondent Registrar which was that the condition imposed in the Declaration “only valid for work as a nominee” was liable to create confusion within the building industry and result in a potential public safety risk.
21 As noted in the Tribunal’s reasons at [24], the Registrar invited it to make an order to specify the meaning of that condition and suggested additional conditions that could be imposed to achieve this clarity.
22 In its consideration, the Tribunal said at [26] that the only relevant ground on which the applicant’s registration could be refused was that the occupation in which registration was sought was not an equivalent occupation. The Tribunal reasoned, at [27], that a declaration by a Minister was to be given effect by the local registration authority and prevailed over any declaration made by the Tribunal. At [28], the Tribunal found that there was a relevant declaration that set out the equivalent occupation, and that the condition “only for work as a nominee” was imposed by the Declaration.
23 The Tribunal concluded its consideration as follows:
30. The decision under review, however, is a decision to refuse the application’s (sic) registration in the ACT. It is not a decision regarding the interpretation of any conditions placed on a registration as this registration has been refused. To this extent, the Registrar seeks review of a decision that has not yet been made.
31. The Registrar concedes that the decision it made was incorrect. It is not necessary or appropriate for the Tribunal to enter into a process of either clarifying or adding to a condition that the Minister sees fit to impose. If the Registrar seeks to impose additional conditions, the Minister may be approached to amend or rescind the Declaration by notice in the Gazette in accordance with s 32(2) of the Act.
32. The Tribunal finds that the Declaration sets out the equivalence of occupations, and that a Builder – Open (Site Supervisor) is declared to be equivalent to a Builders Licence Class A BCA – All classes - only for work as a nominee.
33. It follows that the Registrar incorrectly refused the registration of the applicant. As the equivalence of occupations is a matter for the Ministers as specified in the Declaration, and the Registrar has foreshadowed changes to the Declaration, the appropriate course is to set aside the decision and return it for reconsideration in accordance with the Declaration.
The statutory provisions
24 By s 16(2) of the Mutual Recognition Act, Part 3 of that Act deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State. By s 16(3), two such states are called “the first State” and “the second State”, respectively, in Part 3.
25 Section 17(1) states the mutual recognition principle in respect of occupations, which is that, subject to Part 3, a person who is registered in the first State for an occupation is, by the 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. The mutual recognition principle in respect of occupations was the subject of detailed recent discussion in Victorian Building Authority v Andriotis [2019] HCA 22; 372 ALR 1.
26 Section 17(2) sets out an exception to the mutual recognition principle, which is 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.
27 By s 20(1), a person who lodges a notice under s 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. The local registration authority may grant registration on that ground and may grant renewals of such registration: s 20(2).
28 By s 20(5), the local registration authority may impose conditions on registration. However, it may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from Part 3, unless they are conditions that apply to the person’s registration in the first State or that are necessary to achieve equivalence of occupations. Section 20(6) states that s 20 has effect subject to Part 3. Unless the contrary intention appears, the word “conditions” is defined in s 4(1) of the Mutual Recognition Act to mean, when used in relation to occupations, conditions, limitations or restrictions.
29 By s 28 of the Mutual Recognition Act, the equivalence of occupations carried on in different States is to be determined in accordance with Part 3.
30 Sections 29 and 30 of the Mutual Recognition Act provide as follows:
29 General principles
(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.
30 Declarations as to equivalent occupations
(1) This Part is to be given effect in accordance with relevant declarations (if any) made under this Division regarding equivalent occupations.
(2) If a declaration made by the Tribunal and a declaration made by Ministers are inconsistent, the ministerial declaration prevails.
(3) A declaration under this Part does not affect the registration of any person already registered (except in the case of a declaration made by the Tribunal in relation to that person specifically).
31 By s 32(1) of the Mutual Recognition Act, a Minister from each of 2 or more States may jointly declare, by notice in the Gazette, that specified occupations are equivalent, and may specify or describe conditions that will achieve equivalence.
32 By s 32(4), the appropriate local registration authority is to give effect to the declaration.
33 By s 34, application may be made to the Tribunal for review of a decision of the local registration authority in relation to its functions under the Mutual Recognition Act.
34 By s 31 of the Mutual Recognition Act, 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.
35 Section 31(5) of the Mutual Recognition Act provides as follows:
(5) The local registration authority is to give effect to the decision on the review, and must thereafter act in conformity with the decision in relation to other persons seeking registration.
36 Section 40(1) provides that a local registration authority has power to impose fees in relation to substantive or deemed registration or the continuance of registration arising under Part 3, but that any such fees may not be greater than are applicable for registration apart from that Part.
37 Although in my view, in light of the Declaration, it is unnecessary to analyse the provisions of the Queensland legislation, for completeness I set out the following.
38 Section 30B of the Queensland Building Services Authority Act (now the Queensland Building and Construction Commission Act) provides:
30B Site supervisor’s licence
(1) A licence (a site supervisor’s licence) may be issued authorising an individual, while the individual is an officer or employee of a licensed contractor that is a company, to personally supervise building work carried out under the company’s licence.
(2) A licence (also a site supervisor’s licence) may be issued authorising an individual, while the individual is an employee of a licensed contractor that is an individual, to personally supervise building work carried out under the contractor’s licence.
(3) Site supervisors’ licences are to be divided into classes by regulation—
(a) according to whether the licence relates to all classes of building work or is limited to a specified class or specified classes of building work; and
(b) if the licence is limited to a specified class, or specified classes, of building work—according to the class or classes of building work to which it relates.
(4) A site supervisor’s licence may be issued for any class of licence.
39 Section 32AA provides for qualifications for a site supervisor’s licence, as follows:
32AA Entitlement to a site supervisor’s licence
(1) An individual is entitled to a site supervisor’s licence if the commission is, on application by the individual, satisfied that—
(a) the applicant has the qualifications required by regulation for a licence of the relevant class; and
(b) the applicant can lawfully work in Queensland; and
(c) the applicant is not a banned individual; and
(d) the applicant is a fit and proper person to hold the licence.
…
40 Regulation 10 of the Queensland Building and Construction Commission Regulation 2018 (Qld) provides:
10 Classes of site supervisor’s licence—Act, s 30B
Site supervisors’ licences are divided into the classes stated in schedule 2 …
41 Regulation 14 provides that the qualifications for a site supervisor’s licence are the technical qualifications stated in Sch 2 of the relevant class of licence. Schedule 2 provides relevantly:
Part 6 Builder—open licence
1 Licence classes
(1) Builder—open.
(2) ….
2 Scope of work
(1) For the licence class mentioned in section 1(1)—
(a) building work on all classes of buildings; and
(b) prepare plans and specifications that are—
(i) for the licensee’s personal use; or
(ii) for use in building work to be performed by the licensee personally.
(2) However, the scope of work does not include—
(a) a completed building inspection for an interested party for the building; or
(b) personally carrying out any building work for which—
(i) a fire protection licence is required; or
(ii) an occupational licence is required unless the licensee holds the occupational licence.
…
4 Technical qualifications—site supervisor’s licence
The technical qualifications stated in the technical qualifications document for the licence class applied for.
5 Experience requirements
(1) For the licence class mentioned in section 1(1), the experience requirements are the following—
(a) for a person who has a technical qualification required under part 3 or 16—2 years experience in—
(i) the scope of work for the class; or
(ii) other work the commission is satisfied is at least equivalent to experience in the scope of work for the class;
(b) otherwise—4 years experience in—
(i) the scope of work for the class; or
(ii) other work the commission is satisfied is at least equivalent to experience in the scope of work for the class.
…
6 Financial requirements
The relevant minimum financial requirements.
42 The term “technical qualifications document” is defined in the dictionary to mean “the document called ‘Technical Qualifications for Licensing’ made by the chief executive and published on the department’s website”. Pursuant to the 2018 and 2019 versions of that document, a person may obtain the relevant technical qualifications by a number of means, one of which consists of successful completion of various “units of competency” (or equivalent course), described in the 2018 and 2019 documents as follows:
(i) Apply building codes and standards to the construction process for large building projects CPCCBC6001B;
(ii) Manage processes for complying with legal obligations of a building or construction contractor CPCCBC6018A;
(iii) Apply structural principles to the construction of large, high rise and complex buildings CPCCBC6014A;
(iv) Assess construction faults in large building projects CPCCBC6016A;
43 By s 43 of the Queensland Building and Construction Commission Act, for a licensed contractor that is a company, the company and the company’s nominee must each ensure that building work carried out by the contractor is personally supervised by the company’s nominee or, relevantly, an officer or employee of the contractor who holds a site supervisor’s licence of the relevant class authorising supervision of the building work. For a licensed contractor that is an individual, the contractor must ensure that building work carried out by the contractor is personally supervised by the contractor or an employee of the contractor who holds, relevantly, a site supervisor’s licence of the relevant class authorising supervision of the building work.
44 The relevant ACT legislation is as follows.
45 Part 3 of the Construction Occupations (Licensing) Act is headed “Construction practitioners licences”. The operative provisions of that Part are preceded by a note, which does not form part of the Act (see Legislation Act 2001 (ACT) s 127(1)), as follows:
Note about application of the Mutual Recognition Act 1992 (Cwlth) and the Trans-Tasman Mutual Recognition Act 1997 (Cwlth)
These Commonwealth Acts allow people licensed in certain occupations in a local jurisdiction to carry on the occupations in another local jurisdiction and provide an alternate way of applying for licences in the ACT or another local jurisdiction. Because of the Self-Government Act, s 28, the requirements for licences under this Act cannot validly require anything of people being licensed under the Commonwealth Acts that would be inconsistent with those Acts. Accordingly, provisions of this Act, such as the requirements for applications, do not apply to the licensing of people under the Commonwealth Acts. Also, the Commonwealth Acts set out when conditions may be placed on people licensed under those Acts. For more information, see the Commonwealth Acts.
(Although the applicant referred in oral submissions to that note, in my view nothing turns on it.)
46 Section 21(1) of the Construction Occupations (Licensing) Act provides that the regulations may prescribe conditions on licences and when conditions on licences take effect. By s 21(2), the Registrar may amend a licence by putting a condition on the licence, or by amending or cancelling a condition the Registrar has put on the licence, at any time by written notice given to the licensee, unless the regulations provide otherwise. By s 21(3), the Registrar may amend a licence by putting a condition on the licence, or amending the licence, only if satisfied that it is necessary or desirable to protect the public.
47 Section 22 of that Act provides that the Registrar may, in accordance with the regulations, endorse the licence. Endorsement authorises the licensee to provide a stated kind of construction service that the licensee would not otherwise be allowed to provide under the licence.
48 Section 23 concerns the form of a licence. A licence must be signed by the Registrar and contain the following details: the licensee’s full name; each construction occupation, and occupation class (if any) in which the licensee is licensed; and a unique identifying number for each construction occupation and occupation class in which the licensee is licensed. Importantly, by s 23(2), the regulations may require or allow other information to be included on a licence.
49 By reg 6 of the Construction Occupations (Licensing) Regulation 2004 (ACT) the information which must be included on a licence, in addition to the information required by s 23(2) of the Act, includes whether the licence is subject to conditions and, if it is, which construction occupation or class of construction occupation the conditions apply to. By reg 6(2), a licence condition may, but need not, be included on the licence. A licence condition is therefore other information allowed to be included on a licence.
50 By reg 20, the conditions a licence is subject to include the applicable requirements in Division 5.1.
51 By reg 36, a licence for a class authorises the licensee to provide each service in Schedule 1, column 3 for the class in the circumstances (if any) stated in the column for the item.
52 By reg 37, the construction occupation of builder is divided into the classes in Schedule 1, part 1.3, column 2, relevantly as follows. Class A is specified as a construction occupation class and column 3 states as the construction work “building work other than specialist building work”.
53 The term “specialist building work”, as defined in the Dictionary by reference to s 9 of the Building Act 2004 (ACT):
(a) means—
(i) the installation of a swimming pool; or
(ii) the demolition of a building; and
(b) includes building work prescribed under the regulations as specialist building work.
54 There is no definition of “nominee” in the Mutual Recognition Act. In the Declaration the term is used with reference to the various jurisdictions but it is undefined. In the ACT Construction Occupations (Licensing) Act, unless the contrary intention otherwise appears:
nominee, of a corporation or partnership, means a person who is appointed as a nominee of the corporation or partnership under section 28.
55 Thus the definition does not apply to a nominee of an individual.
The evidence
56 The applicant relied on one affidavit by Annika Dimitrijevich, Australian legal practitioner and solicitor for the applicant, affirmed 14 November 2019. For the reasons I gave in the course of the hearing, I admitted that affidavit into evidence.
57 The respondent Registrar relied on an affidavit sworn by Benjamin Green on 29 November 2019. Benjamin Green is the Registrar appointed under s 103 of the Construction Occupations (Licensing) Act 2004 (ACT). I admitted the bulk of that affidavit as submissions only. I admitted BG11 to BG16 subject to relevance. As will appear, these non-statutory instruments, and the terms of them, under the Queensland legislation do not form part of the evidentiary material which I have found it necessary or appropriate to take into account on this judicial review application and I therefore find those exhibits to be irrelevant.
58 The Registrar deposed that following remitter from the Tribunal, on 5 April 2019 he granted the applicant the following licence in the ACT: Builders Licence Class A – BCA – All Classes – Only valid for work as a nominee.
59 The Registrar’s letter to the applicant dated 5 April 2019 was as follows:
I refer to your application dated 17 January 2018 for equivalent occupation registration and the Administrative Appeals Tribunal’s (Tribunal) orders dated 29 January 2019 (see Stephen Dimitrijevich and Construction Occupations Registrar (ACT) [2019] AATA 183).
As you are aware, the Tribunal set aside the Construction Occupations Registrar’s (Registrar) decision to refuse your licence application and remitted it to the Registrar for reconsideration in accordance with the direction that the Registrar gives effect to the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009.
Having regard to your registration as a Builder-Open (Site Supervisor) in Queensland, section 20 of the Mutual Recognition Act 1992 (Cth) (Mutual Recognition Act) and Row 11 of Schedule 25 of the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth) (Declaration), I am satisfied that you are eligible to be granted a Class A Builders Licence for work in the ACT as a nominee only.
Pursuant to sections 19(1) and 21 of the Construction Occupations (Licensing) Act 2004 (COL Act), I issue you with a Class A Builders licence with the condition ‘Only Valid for Work as a Nominee’ to be recorded on the face of the licence. I also make the following annotations to appear on your licence to reflect the entitlement under the Mutual Recognition Act and Declaration:
• the holder is not authorised to provide building services in any licence class;
• the holder is authorised to supervise building services that are provided for or on behalf of the partnership or corporation by individuals who hold a licence in the appropriate class for those construction services;
• the holder is required to ensure that those building services comply with the Construction Occupations (Licencing) (sic) Act 2004 and related operational Acts
Please see PART 1 below for further information about how to pay for your licence or appeal the decision. The issue of the licence does not take effect until the licence term fee has been paid. Payment of the fee is agreement that you have accepted the licence offered.
…
PART 1
ADMINISTRATIVE INFORMATION
PAYMENT AMOUNT
Builder
Licence Fee (term 3 years) $850.00
Licence Fee (term 1 year) $314.00
Should you wish to accept this offer, please use the form located at Construction and Workplace Licensing Acceptance of Offer to accept and make payment for the licence offered. Please use reference number 201855 when accepting the offer.
REVIEW BY THE ADMINISTRATIVE APPEALS TRIBUNAL (AAT)
This decision is reviewable by the Administrative Appeals Tribunal (AAT) (see section 34 of the Mutual Recognition Act 1992. (sic)
…
60 The Registrar deposed that the fee was payable by, and was required from, any person seeking a construction practitioner licence in the ACT at that time, as determined by the Minister by the Construction Occupations (Licensing) (Fees) Determination 2019 (ACT) (revoked), prior to the issue of any construction practitioner licence taking effect. The earlier fees determination was revoked by the Construction Occupations (Licensing) (Fees) Determination 2019 (No 2) (ACT) on 1 July 2019.
61 On 11 April 2019 the Registrar provided to the applicant, by email, a copy of his statement of reasons for the decision made on 5 April 2019. This was as follows.
PART 1
REASONS FOR THE DECISION
1. Mr Dimitrijevich, the applicant, holds a Queensland Builder – Open (Site Supervisor) Licence issued under Queensland Building and Construction Commission Act 1991.
Mutual Recognition Act
2. Section 19 of the Mutual Recognition Act allows a person registered in one state (the first state) to lodge a notice with the local registration authority of another state (the second state) seeking registration in an equivalent occupation in accordance with the mutual recognition principle.
3. Section 20 of that Act states that a person who lodges such an application is entitled to registration in the equivalent occupation as if the law of the second state expressly provided that registration in the first state was a sufficient ground of entitlement.
4. Section 32 of that Act allows the Ministers of two or more states to declare that two occupations are equivalent and, in so doing, to specify or describe conditions that will achieve equivalence. It also requires the authority to give effect to the declaration in exercising its statutory functions.
Construction Occupations Licensing Law
5. Section 15 of the Construction Occupations (Licensing) Act 2004 (COL Act) permits a regulation to divide a construction occupation into classes.
6. Section 19 of that Act provides for the grant of a licence in a construction occupation or class.
7. Sections 36 and 37, and Part 1.3 of Schedule 1, of the Construction Occupations (Licensing) Regulation 2004 (COL Regulation) divide the builder’s occupation into the following classes:
a. Class A: building work other than specialist building work;
b. Class B: Class A building work in relation to a building 3 stories or lower;
c. Class C: Class A building work in relation to a class 1, class 2, or class 10a building that is 2 stories or lower or and most class 10b structures; and
d. Class D: non-structural basic building work other than specialist building work.
8. Section 36 of the COL Regulation provides that a licence in a relevant class authorises the licensee to ‘provide each service’ that is identified in the relevant schedule in the stated circumstances.
9. Section 21 of the Act permits a regulation to prescribe the conditions which attach to a licence. I read that provision and the terms of any regulation made under that provision as being subject to my obligation in section 32 of the Mutual Recognition Act to give effect to the Declaration.
10. Section 31(1) confers the following functions on the nominee of a corporation or partnership:
a. to supervise the construction services of the corporation or partnership for which the nominee is responsible (s 31(1)(a));
b. to ensure that the relevant construction services comply with this Act and the operational Acts (s 31(1)(b)).
The Declaration
11. Row 11 of Schedule 25 of the Declaration identifies the following as “equivalent occupations”:
a. Queensland: ‘Builder - Open Licence - Site Supervisor’ (Column A); and
b. Australian Capital Territory: ‘Builders Licence Class A BCA-All classes. Only valid for work as a nominee’ (Column H).
12. As it is a condition that is specified or described in the Declaration, the words “only valid for work as a nominee” must be imposed by me as a condition upon the licence granted under the COL Act.
13. As that occupation does not correspond directly to any class prescribed in the COL Regulation and as the functions of a nominee do not correspond to any services identified in the COL Regulation, I am satisfied that I must annotate the licence in order that I may give effect to the Declaration.
Other Considerations
14. In deciding that I should annotate the licence, I gave particular consideration to the scope of work permitted under a Site Supervisor Licence. While the Site Supervisor Licence (Qld) allows the applicant to supervise building work, it does not permit him to be the responsible party for the work. By contrast, for all builders' licences under ACT Legislation, the licensee has a responsibility whether they are a nominee or not.
15. If the licence were to be granted to the applicant in the form of the Declaration, I consider it is entirely possible that a corporation could appoint the applicant as a nominee with the expectation that he has the skills, knowledge and experience to undertake not only the supervision of work but the doing of building work in his own right. Based on evidence provided to date I am not satisfied that the applicant does not (sic) have the requisite education or experience to undertake building work in his own right. I note that the applicant relies entirely on his eligibility under mutual recognition and has not sought to be registered as builder relying on any other qualification that he may have relevant to the services in that construction occupation.
16. If a licence were to be granted to the applicant without providing clarity around defining what services he may provide, or what activities he may engage in, as a nominee, it could put the community, sub-trades, land owners, other licensees, the integrity of the builder licensing systems in the ACT, the building certification system and building suppliers, at risk from both a financial and public safety and work health and safety perspective.
Conclusion
17. Based on these considerations, and in accordance with the Mutual Recognition Act, Construction Occupations Licensing Law and the Tribunal Orders, I have decided to grant a Builder Class A licence with the following annotations:
• the holder is not authorised to provide building services in any licence class;
• the holder is authorised to supervise building services that are provided for or on behalf of the partnership or corporation by individuals who hold a licence in the appropriate class for those construction services;
• the holder is required to ensure that those building services comply with the Construction Occupations (Licencing) (sic) Act 2004 and related operational Acts
LS
Ben Green
Construction Occupations Registrar
11 April 2019
62 The applicant has not paid any licence fee in respect of an ACT licence.
The submissions of the parties
63 The applicant submitted that the respondent Registrar had failed or refused to give effect to the decision of the Tribunal by failing to register the applicant consistently with the Declaration, allowing his own decision to stand, and making an “offer” to the applicant in lieu of proper registration in accordance with the terms of the Declaration. The applicant submitted the Registrar had refused to give effect to the registration outcome identified in the Declaration as achieving occupational equivalence.
64 The applicant submitted that terms or conditions not expressly contained within the Declaration may not be imposed by registration authorities. It remained neither necessary nor appropriate for the Registrar to seek to introduce arbitrary and subjective terms into that scheme, and the attempt to do so in these proceedings appeared to be grounded in a misunderstanding of the meaning and function of judicial review.
65 The applicant submitted that the Registrar had a duty under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to act promptly, impartially and in good faith to give effect to the decision of the Tribunal, referring to Collector of Customs v LNC (Wholesale) Pty Ltd [1989] FCA 703; 19 ALD 341 at [18], [21] and [23]. The Registrar had failed to perform this duty, the applicant submitted.
66 The applicant submitted that the Registrar’s conduct was affected by jurisdictional error and that it was appropriate to make proposed declaration 1 in the further amended originating application. In addition, the proposed declaration 2 in the further amended originating application articulated the manner in which the applicant submitted that the Tribunal’s decision should be given effect, and proposed order 3 compelled the Registrar’s performance of his duty under the AAT Act to give effect to that decision.
67 The applicant also submitted that it was appropriate to make proposed declarations 4 and 5 as to the Registrar’s failure to perform his duty under the AAT Act.
68 The applicant submitted that by the time of the hearing of this application, over 320 days would have passed since the Tribunal decision was handed down, during the early stages of which various pieces of correspondence were exchanged between the parties which emphasised the requirement for the decision to be made in the terms provided for in the Tribunal decision.
69 The applicant submitted that, in circumstances where he was being deprived of the ability to pursue and earn a livelihood from his chosen occupation, a delay of this duration was entirely unreasonable.
70 In those circumstances, the applicant submitted that it was appropriate for this Court to make proposed declarations 2 and 3, pursuant to s 16(3)(b) of the AD(JR) Act, that the Registrar had a duty to give effect to the decision of the Tribunal, and proposed order 3, pursuant to ss 16(3)(a) and (c) of the AD(JR) Act, that the Registrar was required to make a decision, and give effect to a registration outcome.
71 The applicant also submitted that it was appropriate to make proposed declaration 5, pursuant to s 16(3)(b), in relation to the infringement of the applicant’s right to work in the ACT caused by the Registrar’s delay in making the decision he had a duty to make.
72 The applicant submitted that there should be an order that his costs of these proceedings be paid by the Registrar on a full indemnity basis. The applicant submitted that it was unreasonable for the Registrar to have subjected the applicant to the expenditure of costs in bringing these proceedings before the Court and that the applicant found himself in the special and unusual circumstances of having to bring Federal Court proceedings to enforce the Tribunal decision, citing Hamad v New South Wales (2002) 188 ALR 659 at 665 per Gray J, Carr and Goldberg JJ agreeing, Colgate-Palmolive Company v Cussons Pty Limited (1993) 118 ALR 248, and Re Wilcox; Ex parte Venture Industries Ply Ltd (No 2) (1996) 72 FCR 151 at [152]-[153] per Black CJ and [156][158] per Cooper and Merkel JJ.
73 It became clear the course of oral argument that the applicant did not complain about the decision to include on the ACT licence which he sought the words: “Only valid for work as a nominee”. Those words were in the same terms as the relevant part of the Declaration.
74 It also became clear that the applicant did not complain about the requirement that he pay fees as determined by the applicable ACT Construction Occupations (Licensing) (Fees) Determination.
75 This meant that it was the Registrar’s decision to include annotations on the applicant’s licence that was at the centre of the applicant’s case.
76 The respondent Registrar submitted the steps taken by him were consistent both with the Tribunal’s decision and the Mutual Recognition Act, and disclosed no error. The Registrar also submitted that relief should be refused on discretionary grounds in any event, given the applicant’s delay, that he could have but did not again apply to the Tribunal, and the fact that such relief would be inutile. In oral submissions the Registrar contended that relief should also be refused on the basis that the annotations accurately stated the effect of the ACT construction occupations legislation.
77 The Registrar first contended that the licence the applicant held under the Queensland Building and Construction Commission Act permitted the applicant to personally oversee and direct building work to ensure it was in accordance with the plans and specifications in the contract for those works, and of a competent standard. The Registrar submitted that under that licence, the applicant could not contract or subcontract to carry out building work, and could not act as a nominee for a company.
78 The Registrar submitted that the entitlement to registration under the Mutual Recognition Act was limited to equivalent occupations, being occupations where the authorised activities were substantially the same (whether or not this result was achieved by means of the imposition of conditions), citing s 29(1) of the Mutual Recognition Act.
79 The Registrar submitted that he retained a discretion to impose conditions on registration, referring to s 20(5) of the Mutual Recognition Act. Registration in the second State could only be refused in limited circumstances, including where equivalence could not be achieved through the imposition of conditions, the Registrar submitted, referring to s 32(1) of the Mutual Recognition Act.
80 The Registrar relied on s 29 of the Mutual Recognition Act. He submitted that the context of ss 30 and 32 demonstrated that those sections defined equivalence in circumstances where a relevant declaration had been made. So much was clear from the definition of “equivalent” in s 4, which referred back to Division 4 of Part 3 in which those sections sat, the Registrar submitted.
81 So long as the equivalence between the declared occupations was achieved, however, local registration authorities in a second State retained the capacity to impose conditions upon registration which furthered that end, the Registrar submitted. This conclusion was supported by other sections in Part 3, including ss 20(5), 23(1)(c), 29(2) and (3), each of which indicated that a local registration authority retained a discretion to impose conditions on registration to achieve equivalence.
82 The Registrar submitted that the purpose of the Mutual Recognition Act confirmed this approach. That Act facilitated the effective functioning of a national economy within Australia by removing domestic barriers to the free movement of goods and skilled persons. It did this by entitling a person to registration in a second State once they had achieved registration in an equivalent occupation in another State. That person was entitled to the same rights in the second State as they would have in the first State, no more and no less, the Registrar submitted. A declaration under Division 4 of Part 3 established the equivalence between two occupations, the Registrar submitted, but it did not constrain the power of local registration authorities to impose conditions designed to further the equivalence of two different occupations in two different States.
83 The Registrar then turned to what the applicant was entitled to do under his Queensland licence. The Registrar submitted that site supervisor licences were established by s 30B of the Queensland Building and Construction Commission Act. Such licences authorised an individual, while that person was an employee of a licensed contractor, to personally supervise building work carried out under the contractor’s licence. Site supervisor licences were divided into classes by regulation.
84 The Registrar submitted that Part 6 of Schedule 2 to the Queensland Building and Construction Commission Regulation provided that the holder of a licence in the “Builder – Open” class may carry out building work on all classes of building, but may not personally carry out any building work for which an occupational licence was required unless the licensee otherwise held such a licence.
85 Thus, the Registrar submitted, the holder of a Builder – Open – Site Supervisor licence may supervise building work on all classes of building carried out by the licensee’s employer but may not personally carry out any building work. It was the equivalent of this occupation in the ACT to which the applicant had an entitlement to be registered under the Mutual Recognition Act.
86 The Registrar submitted that the analogue of site supervisor licences under the Construction Occupations (Licensing) Act was the nominee regime established under Division 3.2. That Division required a corporation or partnership carrying out building work to appoint a nominee to oversee the supervision of the construction services provided by that entity. A nominee was required to supervise the construction services, and ensure that those services complied with legislative requirements. This obligation was personal, the Registrar submitted.
87 The Registrar submitted that in order to be eligible to be a nominee, however, a person must inter alia be licensed in the same construction occupation that the corporation or partnership is licensed in, referring to s 19 of the ACT Construction Occupations (Licensing) Regulation. This required a nominee to personally hold a licence in a construction occupation before that person may become a nominee. The Registrar submitted that this was a key difference between the Queensland and ACT licensing schemes. Were it not for the Declaration, it could be argued that the nominee system in the ACT was not equivalent to the site supervisor licence system in Queensland, the Registrar submitted.
88 Turning to his decision, the Registrar submitted that it was consistent with the Declaration and the Mutual Recognition Act and disclosed no error.
89 The Registrar submitted that the only condition imposed on the applicant’s ACT licence was that stated in the Declaration, and that the annotations were made to explain, not constrain, what the applicant was entitled to do under ACT law.
90 The Registrar submitted that the applicant’s contentions that the annotations were, in fact, conditions, and that those words impaired or detracted from the terms of the Declaration, were not correct. The annotations, the Registrar submitted, only recorded matters of fact or law relevant to the applicant’s licence to carry out building work in the ACT. In oral submissions, the Registrar explained that his primary position was that the annotations were not conditions, but if they were conditions then they were authorised because they did not derogate from the equivalence established by the Declaration.
91 The Registrar submitted it was a matter of fact that the applicant was not licensed in any building trade, and that the reference to licence class referred to licensed professionals in specific trades, referring to s 36 and Schedule 1 to the ACT Construction Occupations (Licensing) Regulation.
92 The Registrar submitted that a nominee may only supervise work conducted on behalf of a corporation or partnership, and must abide by all relevant ACT legislation.
93 The Registrar submitted that the applicant’s position was not modified at all as a result of the annotations, as those words set out in summary form limitations otherwise imposed on the applicant by ACT law.
94 The Registrar submitted that even if the annotations were conditions, those conditions were necessary to achieve equivalency between the Queensland licence and the ACT licence stated in the Decision. A site supervisor licensee in Queensland need not have a building trade licence before becoming a supervisor, whereas a nominee in the ACT must have such a licence before becoming a nominee. Absent such condition, the applicant would gain greater rights in the ACT than he had in Queensland. Such a result would be beyond the scope and purpose of the Mutual Recognition Act, the Registrar submitted.
95 The Registrar submitted that even if the Court found that the decision contained an error, it would be open to the Court to refuse relief on discretionary grounds, those grounds being, first, delay in the filing of the application and, second, that it was open to the applicant to seek review of the decision in the Tribunal. The availability of such alternative and the applicant’s failure to pursue it was a powerful discretionary reason not to grant discretionary relief, the Registrar submitted.
96 Finally, the Registrar submitted that it was not clear that the relief sought would be of any utility. The applicant appeared to be ordinarily resident in South Australia. There was no evidence that the applicant had been prevented by the decision from carrying out building work in the ACT, or indeed that the applicant intended to carry out such work in the ACT in the future. The Court would only grant declaratory and injunctive relief where that relief is of real utility to the applicant. Here, such relief would appear to be meaningless, the Registrar submitted.
Consideration
97 The respondent Registrar’s objection to competency on the basis of delay the applicant relying on the AD(JR) Act is not to the whole of the proceedings as that objection does not relate to the claim under s 39B of the Judiciary Act. In the circumstances, where the amendment was and is proposed to cure a possible defect in the jurisdictional basis of the application and where the Registrar does not contend that the proceedings do not involve a matter arising under any laws made by the Parliament within the meaning of s 39B(1A)(c) of the Judiciary Act, being either or both of the Mutual Recognition Act and the AAT Act, and in light of what follows, I would grant the applicant an extension of time under the AD(JR) Act and dismiss the respondent Registrar’s objection to competency. I will consider later in these reasons, at [148] below, whether the Court should withhold relief either under s 39B of the Judiciary Act or under s 16 of the AD(JR) Act on a discretionary basis by reason of the delay.
98 The application for judicial review was filed in this Court on 29 September 2019 and served on 11 October 2019. Between 29 January 2019 and 5 April 2019 it appears that no response was made by the respondent Registrar to the decision of the Tribunal despite a number of communications on behalf of the applicant. The applicant also complained to the ACT Ombudsman, who decided on 23 May 2019 that an investigation was not warranted and resolved to close the applicant’s complaint. The applicant took issue with this conclusion by email dated 27 May 2019. Despite events which occurred after the applicant was notified of the Registrar’s decision, I give greater weight to the fact that the decision was communicated to the applicant on 5 April 2019, a statement of reasons was provided by the Registrar on 11 April 2019 and these proceedings were not commenced until 29 September 2019.
99 At the first case management hearing, on 29 October 2019, the legal representative of the respondent submitted that the Registrar had granted the applicant a licence subsequent to the Tribunal’s decision. Attempts were then made by the lawyer for the applicant to obtain from the Registrar confirmation that a licence had been issued. There was an ambiguity between a decision to grant the licence and the grant or issue of the licence.
100 No doubt there was an unexplained delay on the part of the applicant in seeking to rely on the AD(JR) Act between, at the latest, May 2019 and late September 2019 but no such issue was raised in the case management hearings and there is no suggestion of prejudice to the Registrar arising from the delay. As to the proposed amendment to add a claim under the AD(JR) Act, I indicated on 1 November 2019, in the course of the second case management hearing, that if the Registrar wanted to oppose the amendment to add a claim under s 7 of the AD(JR) Act then the applicant was to be notified no later than 15 November 2019, with any dispute about it being dealt with the final hearing. An email from my associate to the parties dated 19 November 2019 repeated what I had then said. No such notification was made by, or after, 15 November 2019 until the objection to competency was filed on 6 December 2019.
101 I also take into account in granting the applicant an extension of time and dismissing the objection to competency that the issue between the parties is a significant one in terms of the administration of the ACT Construction Occupations (Licensing) Act and Construction Occupations (Licensing) Regulation in light of the Mutual Recognition Act and the Declaration.
102 Further, there would seem to be no barrier to the applicant making a fresh application for registration in the ACT under the Mutual Recognition Act.
103 Another preliminary point, this point being raised by the applicant, may be shortly disposed of. This is the question of the non-issue of the licence and the fact that the decision was framed by the Registrar as an “offer”: see [59] above.
104 In my opinion, although describing a decision to issue a licence under s 19 of the ACT Construction Occupations (Licensing) Act as an offer seems strange, and potentially misleading if understood as an offer to enter into a contract or as indicating that registration is discretionary, there is no separate point arising from the non-issue of the licence. This is because: the “offer” related only to the payment of the relevant fee; the licence did not issue because the applicant did not pay the prescribed fee (which by s 40 of the Mutual Recognition Act could be imposed, provided it was not greater than applicable fees apart from Part 3 of that Act); and the applicant did not pay the prescribed fee because he took the view that the Registrar’s decision to issue the licence contained one or more legal errors, being the errors litigated in the present proceeding. In my opinion, the substance of the proceeding is that question, being whether the Registrar’s decision contained one or more legal errors, and it is to that question I now turn.
105 In my opinion, contrary to the submissions on behalf of the applicant, the proper construction of the decision of the Tribunal is that it was limited to the question whether the registration of the applicant should or should not be refused. That was the matter before it, review having been sought of the Registrar’s refusal to register the applicant. The Tribunal did not go further, given what was said in the Declaration. Having set aside the decision under review to refuse to register the applicant, the Tribunal limited itself to directing that the respondent Registrar give effect to the Declaration. I do not accept the applicant’s submission that [31] of the Tribunal’s reasons, which I have set out at [23] above, should be taken to determine the question of conditions. This is made clear by the immediately preceding paragraph of the Tribunal’s reasons where it explained that the decision under review was not a decision regarding the interpretation of any conditions placed on a registration as, at that time, the registration had been refused.
106 I find that the Registrar purported to give effect to the Declaration.
107 The question then arises whether the decision of the respondent Registrar is contrary to the Declaration. This issue was raised by proposed declarations 2 and 3 in the applicant’s further amended originating application: “and in those terms only without further condition, modification, clarification or annotation”.
108 In relation to the condition the Registrar decided to impose, being “only valid for work as a nominee”, the applicant accepted in oral submissions that that condition was valid. In my opinion, for the following reasons, the applicant was correct to do so.
109 Section 21 of the Construction Occupations (Licensing) Act provides that the regulations may prescribe conditions on licences and when conditions on licences (whether imposed under the regulations or by the Registrar) take effect.
110 Section 20(5) of the Mutual Recognition Act provides a source of power to impose conditions on registration, subject to Part 3 of that Act which includes ss 29, 30 and 32(4). Subject to the Declaration, by s 29(2) also conditions may be imposed on registration under Part 3 so as to achieve equivalence between occupations in different States.
111 The Declaration, in declaring the equivalence of the relevant Queensland and ACT occupations, may be understood as contemplating a licence condition when it uses the words “[o]nly valid for work as a nominee”. Such an understanding of the Declaration accords with the absence from the Construction Occupations (Licensing) Regulation of any reference to a licence which in terms is only valid for work as a nominee (but see reg 24(2) concerning bankrupt licensees). It also accords with the contemplation in the operative provision at cl 6 of the Declaration (see [16] above) that the Schedule may indicate “conditions, limitations or restrictions” in respect of the equivalent occupation in the second jurisdiction. It is not clear from the language of cl 6 whether what is there contemplated is that the declared equivalence of the two occupations is subject to such conditions, limitations or restrictions, or that the equivalent occupation in the second jurisdiction is one which may be carried on by a person granted a registration subject to such conditions, limitations or restrictions. Both constructions of cl 6 appear to be open. The resolution of that ambiguity is of no moment in the present case, as on either view s 20(5) would enable the Registrar to impose a condition that the licence is valid only for work as a nominee. That follows from the Registrar’s duty under s 32 of the Mutual Recognition Act, to which s 20(5) is made subject by s 20(6), to give effect to the Declaration, and the fact such a condition could be considered “necessary to achieve equivalence of occupations” as declared by the Declaration. It also follows from the terms of s 29 that, subject to any relevant declarations in force, conditions may be imposed on registration under Part 3 so as to achieve equivalence between occupations in different States.
112 In the present case, in my opinion, the condition stated on the licence is not inconsistent with the Declaration, Row 11 of Schedule 25, and indeed the relevant terms of the Declaration are directed to achieve equivalence between occupations in Queensland and in the ACT.
113 The applicant relies on Dimitrijevich and Commissioner for Fair Trading (NSW) [2019] AATA 182, where the Tribunal said:
22. Clause 6 of the Declaration states that the occupations are equivalent if they appear in the Schedule, and sets out that the conditions, limitations or restrictions are those specified in the Schedule. A plain reading of this clause is that conditions, limitations or restrictions that apply to all those who hold a particular licence in the first jurisdiction will be specified in the Schedule.
23. The Commissioner submits that cl 7 of the Schedule allows for the imposition of additional conditions on the applicant’s licence. Clause 7 allows a person whose ability to practise a profession is subject to individual conditions, limitations or restrictions in the first jurisdiction, to have the same conditions imposed in the second jurisdiction. It does not allow conditions that were not in effect in the first state to be imposed on a licence in the second state.
24. For example, if an individual person has had a restricted licence in one state following disciplinary proceedings against that person, it would allow the same conditions to be placed on the licence in the second state. It does not allow for a local registration authority to conduct a new assessment of whether the occupations are equivalent and impose additional conditions according to that assessment.
25. The applicant does not have any additional conditions imposed on his Queensland licence, and it follows he cannot have additional conditions imposed on the licence in New South Wales.
114 For the reasons I have given, I disagree with this reasoning in so far as it is to the effect that only matters in the form of express conditions in the Declaration may be the subject of conditions in the second jurisdiction and that conditions, limitations or restrictions that apply to all those who hold a particular licence in the first jurisdiction will be specified in the Schedule. I also, with respect, disagree with this reasoning in so far as it is to the effect that only additional conditions imposed on a licence in the first jurisdiction may be imposed on the licence in the second jurisdiction. Indeed, the present is not such a case.
115 In my view, there is no invalidity in the present case in the Registrar deciding to include the condition on the licence.
116 The next matter is whether or not the Registrar’s decision to include the following annotations to appear on the applicant’s licence is valid, including as reflecting the entitlement under the Mutual Recognition Act and the Declaration:
• the holder is not authorised to provide building services in any licence class;
• the holder is authorised to supervise building services that are provided for or on behalf of the partnership or corporation by individuals who hold a licence in the appropriate class for those construction services;
• the holder is required to ensure that those building services comply with the Construction Occupations (Licencing) (sic) Act 2004 and related operational Acts
117 The Registrar has not sought to impose the annotations as conditions.
118 The first question then becomes whether the three annotations may lawfully be included in the licence as “information”.
119 There appears to be no basis in the Mutual Recognition Act for annotations to a licence.
120 As to ACT legislation, which by reason of s 17(2) is unaffected by the mutual recognition principle to the extent the conditions there set out are satisfied, as I have already indicated, reg 6 of the Construction Occupations (Licensing) Regulation provides:
6 Information required on licence—Act, s 23 (2)
(1) In addition to the information required by the Act, section 23 (2), the following information must be included on a licence:
(a) any endorsement relating to the licence;
(b) the period for which the licence is issued in relation to each construction occupation and class of construction occupation;
(c) if the licensee is a partnership —
(i) the name of each partner; and
(ii) if a partner is a corporation—the partner’s ACN (if any);
(d) if the licensee is a corporation—its ACN (if any);
(e) whether the licence is subject to conditions and, if it is, which construction occupation or class of construction occupation the conditions apply to.
(2) A licence condition may, but need not, be included on the licence.
121 The information that this regulation requires to be included on the licence does not include the subject matter of the Registrar’s annotations in the present case. Further, apart from reg 6(2) there seems to be no regulation which allows other information to be included on the licence as provided for by s 23(2) of the Construction Occupations (Licensing) Act: see [48] above.
122 I conclude that there is no statutory basis in the ACT legislation for the annotations. The information which is required and, indeed, permitted to be included on a licence is the subject of express statutory provision, which does not cover the annotations, and the decision to include them on the licence is, therefore, not authorised by the statutory regime. In light of the matter being the subject of express provision in the Construction Occupations (Licensing) Act, I do not accept the oral submission on behalf of the Registrar, made by reference to s 196 of the Legislation Act 2001 (ACT), that there remains to him an incidental power to include on a licence other information which he thinks would be useful.
123 Subject to discretionary matters, this means that the applicant succeeds in his application for judicial review of the Registrar’s decision: the annotations were not permitted to be included on the licence and the decision should be set aside. It was not suggested that the annotations were immaterial to the decision. The applicant is entitled to a licence without those annotations appearing on it.
124 The applicant submitted that the accuracy of the annotations did not arise on his present application for judicial review and involved speculative future eventualities that may or may not happen. The applicant also referred to certain activities being proscribed and subject to criminal penalties so as to make it inappropriate for the Court to intervene on the present application for judicial review. Subject to one matter, I accept these submissions. The one matter is the Registrar’s submission that because the annotations were an accurate statement of the law relief should be withheld as a matter of discretion, to which I now turn.
125 This submission by the Registrar necessarily proceeded on the assumption that I would find, as I have done, that the decision to include on the licence the three annotations was not authorised by the statutory regime. I am not presently persuaded of the correctness of the minor premise underlying the submissions, which is that the annotations accurately state how the legislation would apply to a licensee in the position of the applicant in all circumstances, for the reasons set out below. For these reasons, I would not withhold relief on this discretionary basis. It is therefore unnecessary for me to decide upon the correctness of the major premise underlying the Registrar’s submission, which is that the accuracy of the annotations would provide sufficient reason for refusing relief in circumstances where the decision to include them on the licence involved the Registrar exceeding his statutory authority, and I do not express a view on that matter.
126 It was submitted by the Registrar that the three annotations set out accurately what it is the applicant would be entitled to do in the ACT under the licence, and applicable conditions, in accordance with the Declaration, Row 11, Column H in Schedule 25 “Mutual recognition matrix - Builders (update 2006 matrix)”, under the heading “ACT”:
Builders Licence Class A
BCA – All classes
Only valid for work as a nominee
127 The term “construction service” is defined in s 6(2) of the Construction Occupations (Licensing) Act as the doing or supervision of work in a construction occupation. By s 7, the term “construction occupation” includes “builder”. By s 8(1) a “builder” is stated to mean an entity that provides, has provided or proposes to provide a building service. By s 8(2) a “building service” is the doing or supervising of building work.
128 By s 28(6) of the Construction Occupations (Licensing) Act, an individual is eligible to be appointed by a corporation or partnership as a nominee if the individual:
(a) is eligible under the regulations to be appointed as a nominee; and
(b) is licensed in the construction occupation and occupation class (if any) appropriate for each of the construction services for which the individual is to be responsible; and
(c) agrees in writing to the appointment.
By s 31(1), a nominee of a licensed corporation or partnership has the following functions:
(a) to supervise the construction services of the corporation or partnership for which the nominee is responsible (the relevant construction service);
(b) to ensure that the relevant construction services comply with this Act and the operational Acts.
129 By reg 19 of the Construction Occupations (Licensing) Regulation:
19 Eligibility to be nominee—Act, s 28 (6)
An individual is eligible to be a nominee of a corporation or partnership if—
(a) for a corporation—the individual is a director or employee of the corporation; and
(b) for a partnership—the individual—
(i) is a partner; or
(ii) is the nominee of a corporation that is a partner in the partnership; and
(c) the individual is licensed in a construction occupation that the corporation or partnership is licensed in or applying to be licensed in; and
(d) the individual is otherwise able to exercise the functions of a nominee on a daily basis; and
Examples
1 The individual is not able to exercise the functions of a nominee on a daily basis if the licensee is the nominee for another corporation that has no other nominees and is doing a lot of construction work.
2 The individual is reasonably able exercise the functions of a nominee if the nominee is available to attend locations where the construction services the nominee will be responsible for supervising are being carried out.
Note An example is part of the regulation, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(e) for a construction occupation divided into classes—either—
(i) the individual is licensed in the same class as, or a class that allows the exercising of the same functions as, the class the corporation or partnership is licensed in or applying to be licensed in; or
(ii) the corporation or partnership has a nominee mentioned in subparagraph (i); and
(f) the individual’s licence is not subject to 1 or more of the following conditions (however described):
(i) that the individual must not be a nominee for a stated period, and the period in question is within the stated period;
(ii) that the individual must not supervise trainees or licensees;
(iii) that the individual must be supervised by someone else.
Note For functions of nominees, see the Act, s 31.
130 Against that legislative background, I consider each annotation separately to indicate why I am not presently persuaded that they accurately state how the legislation would apply to a licensee in the position of the applicant in all circumstances.
131 The first annotation is that the holder is not authorised to provide building services in any licence class.
132 It may be recalled that by s 17(2) of the Mutual Recognition Act, 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, here, the ACT, so long as those laws apply equally to all persons carrying on or seeking to carry on the occupation under the law of the ACT and are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
133 Also, s 20 of the Mutual Recognition Act provides that a person who lodges a notice under s 19 is entitled to be registered in the equivalent occupation as if the law of, in this case, the ACT that deals with registration expressly provided that the registration in, in this case, Queensland is a sufficient ground of entitlement to registration.
134 Understood in this context, it cannot have been intended that the Declaration confer a licence on a person in the position of the applicant which does not enable them to become a nominee or provide building supervision services without separately obtaining a licence in the ACT. At the very least, the phrases “Builders Licence”, “Class A” and “valid for work as a nominee” contemplate that the Registrar would licence a relevant applicant as a builder, in the licence class “class A” (see Construction Occupations (Licensing) Regulation, Sch 1, Part 1.3), to provide building services extending at least to what is inherent in the role of a “nominee” of a corporation or partnership as outlined in s 31(1)(a) of the Construction Occupations (Licensing) Act, namely, “to supervise … construction services”. To adapt the terminology of the definition of “building services”, a licence condition or limitation that the holder not “do”, as opposed to “supervise”, building work would be consistent with this understanding of the Declaration, but such a condition would not of itself prevent the appointment of the holder, as a person licensed in a construction occupation and a construction occupation class, as the nominee of a company or partnership in respect of that occupation and class.
135 It follows, in my opinion, that the first annotation appears impermissibly to detract from the content of the entitlement to registration conferred by s 17(1)(a) and to carry on the equivalent occupation conferred by s 17(1)(b) by stating that the holder is not authorised to provide building services (which as defined in the Construction Occupations (Licensing) Act includes supervision of building work) in any licence class. It seems to me that if there is a problem of the kind feared by the Registrar then the solution lies elsewhere.
136 First, as I have said, that the applicant not “do”, as opposed to supervise, building work is consistent with a proper construction of the Declaration. If it is feared that a company or partnership for which the applicant may at some unknown point in the future be appointed a nominee may seek to obtain a licence to “do” building work, or which enables building work to be carried out without the involvement of any person licensed to “do” that work, that situation (which is not the subject of any evidence before me) may be dealt with as it arises under the ordinary licensing process for the company. The licences of companies are not covered by the Declaration: see [17] above. For instance, and depending on the circumstances, the Registrar may be able to meet that situation with conditions on the company or partnership’s licence that, for building services provided by the company or partnership and supervised by the applicant, building work be done by builders licensed to do that work.
137 Second, if any difficulty persists, that difficulty is ultimately with the form of the Declaration and the stated equivalence of the occupation requiring a “Builder – Open Licence – Site Supervisor Grade” and the occupation requiring a “Builders Licence Class A BCA – All classes only valid for work as a nominee”. This is because the general principle in s 29(1) of the Mutual Recognition Act as to occupations taken to be equivalent “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)” has effect subject to any relevant declarations in force under Division 4 (see s 29(3)) and because, as I have said, the Registrar is required by s 32(4) to give effect to the Declaration. In effect, the Declaration excludes whatever may otherwise have been the evaluative role of the Registrar in assessing the equivalence of the two relevant occupations in this case. The problem, if it exists, may be fixed by amendment of the Declaration under s 32(3) by the Ministers who made it.
138 The second annotation is that the holder is authorised to supervise building services that are provided for or on behalf of the partnership or corporation by individuals who hold a licence in the appropriate class for those construction services.
139 Section 31(1)(a) of the Construction Occupations (Licensing) Act provides that a nominee (of a licensed corporation or partnership) has as one of the nominee’s functions to supervise the construction services of the corporation or partnership for which the nominee is responsible.
140 One possible defect in the second annotation is that, unlike the third annotation, it does not use the language of “required” to supervise, although by s 31(2) of the Construction Occupations (Licensing) Act the nominee commits an offence if the nominee fails to adequately supervise the relevant construction services.
141 A second possible defect is that the second annotation, by using the expression “by individuals who hold a licence in the appropriate class for those construction services”, purports to add an unwarranted gloss to the terms of s 31 of the Construction Occupations (Licensing) Act. The expression would seem to be consequential on, and cover the same ground as, the first annotation.
142 A third possible defect is that the second annotation does not seem to take into account the provisions of reg 35 of the Construction Occupations (Licensing) Regulation. This regulation contains a provision to the effect that, leaving aside trainees, building services may be provided by an individual without a licence if done under the supervision of a licensed individual, or the nominee of a licensed corporation or partnership, authorised by the licensed to provide the service.
143 In my view, the substance of the second annotation would be more accurate, so far as it goes, if it read: “the holder is authorised to supervise building services that are provided for or on behalf of the partnership or corporation.”
144 The third annotation is that the holder is required to ensure that the building services mentioned in the second annotation comply with the Construction Occupations (Licensing) Act and related operational Acts set out in s 16.
145 Section 31(1)(b) of the Construction Occupations (Licensing) Act provides that a nominee (of a licensed corporation or partnership) has as one of the nominee’s functions: “to ensure that the relevant construction services comply with this Act and the operational Acts.” By s 31(2)(b), the nominee commits an offence if the nominee fails to ensure that the relevant construction services, being the construction services of the corporation or partnership for which the nominee is responsible as defined in s 31(1)(a), so comply.
146 It follows, in my view, that the third annotation, considered by itself and apart from any difficulties that may arise from the use of the term “those building services” which use refers back to the second annotation, appears accurately to state the effect of the Construction Occupations (Licensing) Act.
147 The respondent Registrar put forward three other discretionary arguments, being delay, the existence of an alternative remedy and lack of utility.
148 As to delay, I take into account what I have found to be the unexplained delay in commencing the proceedings. I do not accept the submission on behalf of the applicant that there was a failure to make a decision, the failure was ongoing, so it was not appropriate or possible to attempt to tether the application to any particular timeframe where the decision that was required to be made had not been made. In my opinion there was a decision made by the Registrar even though the applicant disagreed with it and considered it to be legally flawed. I also take into account that there is no prejudice to the Registrar claimed to flow from that delay. Although important, neither of these factors, unexplained delay and absence of prejudice to a respondent, dictates a particular conclusion since the overarching consideration is the interests of justice: see, albeit under a different statutory regime, Comcare v A’Hearn [1993] FCA 498; 45 FCR 441 at 444. I take into account that the issue between the parties is a significant one in terms of the administration of the ACT Construction Occupations (Licensing) Act and the Construction Occupations (Licensing) Regulation in light of the Mutual Recognition Act and the Declaration. As I have said above in relation to the Registrar’s objection to competency, I also take into account that there would seem to be no barrier to the applicant making a fresh application for registration in the ACT under the Mutual Recognition Act. I do not withhold relief on the basis of delay in the commencement of the proceedings. Taking into account the matters set out above and the merits of the substantive application, I am satisfied that it is proper to grant the relief sought.
149 As to the existence of an alternative remedy, the issue under s 10(2)(b)(ii) of the AD(JR) Act is whether adequate provision is made by any law other than that Act under which the applicant is entitled to seek a review “by another tribunal, authority or person, of that decision…”. The word “review” is widely defined in s 10(3). As I have said, there is also the discretion under s 16 of that Act and the remedies under s 39B of the Judiciary Act are themselves discretionary.
150 As illustrated by Kamha v Australian Prudential Regulation Authority [2005] FCA 480; 146 FCR 24 at [17] and [40]-[41], where the facts are not in dispute and a discrete question of statutory construction is involved it may be convenient and preferable for the Court to determine that question. Otherwise the result may be that the Tribunal determines that question of statutory construction and then the matter would return to this Court on a question of law under s 44 of the AAT Act.
151 There is a possible point of distinction which is that under s 31 of the Mutual Recognition Act the Tribunal, on a review, may specify or describe conditions that will achieve equivalence. But the question then becomes, under s 30(2), whether a declaration made by the Tribunal and a declaration made by Ministers are inconsistent, in which case the ministerial declaration prevails. As explained in Lawrence v Coal Mining Qualifications Board (NSW) [2004] FCA 37; 38 AAR 470 at [41] per RD Nicholson J, “[t]he regime of declarations established by s 32 exists independently of the regime of declarations resulting from enquiry by the Tribunal established by s 31. The making of a Ministerial declaration pursuant to s 32 renders otiose the same issue of equivalence arising in s 31.” At [40] RD Nicholson J said: “When a Ministerial declaration is made there is no purpose in a tribunal acting pursuant to s 31 to carry out a review on the issue of equivalence.”
152 The Tribunal therefore needs to construe the Declaration, a legislative instrument, thus giving rise to a question of law. Although the Tribunal may form a view about such a question in the course of its review, it is only a court that can finally determine it.
153 In the present circumstances, I would not exercise the Court’s discretion to withhold relief on the basis that provision is made by the AAT Act under which the applicant is entitled to seek a review.
154 As to lack of utility, taken separately from the Registrar’s point which I have already considered as to the accuracy of the annotations, the applicant lodged a written notice under s 19 of the Mutual Recognition Act seeking registration for the equivalent occupation in accordance with the mutual recognition principle. By s 20, having lodged a notice under s 19 with the Registrar, the applicant became entitled to be registered in the equivalent occupation. In my opinion, the applicant does not have to go further in the present proceeding so as to show by evidence that he has an intention to exercise the rights flowing from registration in the ACT.
155 In relation to costs, I am not persuaded that there is any basis for the applicant’s application for costs on an indemnity basis. The Registrar purported to give effect to the decision of the Tribunal and the course that he took was not, in my opinion, foreclosed by or inconsistent with the decision of the Tribunal.
Conclusion and orders
156 The decision of the Registrar is set aside. Subject to the payment of the prescribed fee, the applicant is entitled to a licence without the three annotations. The respondent Registrar must pay the applicant’s costs, as agreed or assessed.
I certify that the preceding one hundred and fifty-six (156) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. |
