Federal Court of Australia

Cau v Victorian Building Authority [2022] FCA 45

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal dated 5 March 2020 be set aside.

3.    The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law and these reasons.

4.    The respondent do pay the applicant's costs of and incidental to the appeal to be assessed by a registrar on a lump sum basis if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Massimo Cau is a senior building surveyor. He is registered with the Building Services Board in Western Australia. He applied to the Victorian Building Authority for a licence to act as a building surveyor in Victoria. His application was made on the basis that the provisions of the Mutual Recognition Act 1992 (Cth) conferred upon him an entitlement to be registered. Section 17 of that Act enacts a mutual recognition principle to the effect that a person who is registered in one State for an occupation is entitled to be registered in another State for the equivalent occupation. Mr Cau's application was refused by the Authority on the basis that his registrations in Western Australia were not equivalent to the registrations that he sought in Victoria. Mr Cau applied to the Administrative Appeals Tribunal to review the refusal of his application. The Tribunal affirmed the decision made by the Authority. Mr Cau now brings an appeal from the decision of the Tribunal. The right to do so is confined to an appeal on a question of law.

2    Speaking generally, the reasons given by the Tribunal for its conclusion that the registrations were not equivalent focused upon differences between the nature and extent of the statutory authority conferred upon registered building surveyors by laws regulating the activity of building in each of the two States.

3    Mr Cau's registrations in Western Australia allow him to certify compliance with various building requirements for the purpose of obtaining building construction and occupancy permits. Those certificates are then submitted to a 'permit body' who considers the certificate and other matters and grants the permit if the relevant statutory requirements are met. In similar circumstances, a registered building surveyor in Victoria has authority to issue permits and may also issue notices which have statutory effect if the surveyor is of the opinion that building work has been carried out in breach of a permit or that remediation is required.

4    Underlying both regulatory systems is the evaluation by building surveyors of compliance with the National Construction Code and other standards concerning safety, accessibility and efficiency in building design and construction. Whether Mr Cau had the skill and expertise required to make the relevant evaluative judgments was not the issue. Rather, the issue before the Tribunal concerned the extent to which there were differences between the two States as to matters said to bear on whether there was equivalency in the occupation of building surveyor.

5    One further aspect assumed significance. Before the Tribunal, Mr Cau placed reliance upon a particular aspect of the work he has undertaken as a building surveyor in Western Australia. It concerns the fact that in addition to being a registered building surveyor he also held a delegation from a permit authority. As the holder of the delegation he was required to consider whether permits should be granted under the relevant legislation. The authority to do so was conferred by the delegation and not by his registrations as a building surveyor. Nevertheless, on the basis of the work he performed as the holder of the delegation, he contended that in his practice in Western Australia he undertook an equivalent role to building surveyors in Victoria because he was involved in determining whether permits should issue.

Relevant authorities concerning the concept of equivalent occupation

6    The Mutual Recognition Act provides that the equivalence of occupations carried out in different States is to be determined in accordance with Part 3 of the Act. Within Part 3, s 29(1) provides:

An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).

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

8    The differences in the form of regulation or the terms in which it is expressed are not invited as the focus of an inquiry for the purposes of s 29(1). Rather, the relevant inquiry concerns the activities that are authorised by each occupational registration, particularly whether registration in the second State would confer authority to undertake the same occupational activities as registration in the first State.

9    In order to answer that inquiry, it will be relevant to consider any statutory language concerning the nature and extent of the activities that a registered person may carry out under the registration. However, differences in the form of regulation will not mean necessarily that the activities that are authorised by the registrations are not substantially the same.

10    In a decision by the Tribunal reported as Re Rowe and New South Wales Police Service (1997) 47 ALD 442 at 444 the following was said concerning the application of s 29(1):

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.

11    However, what the above formulation fails to do is address what is meant by the words 'activities authorised to be carried out under each registration'. Significantly, the registration to which reference is being made in that phrase is the registration of an occupation. Further, it is not the activities that may be authorised by reason of the fact of registration or in consequence of registration. Rather, it is the activities that can be carried out under the registration of the occupation. Therefore, the words used in the phrase direct attention to the activities that comprise the nature and extent of the occupation being registered.

12    The distinction may be illustrated in the following way. Assume there is a system of registration for general medical practitioners in a State. A person must be registered in order to practise as a general medical practitioner. Amongst other things, in order to be registered persons must demonstrate that they have the requisite medical qualifications and experience and are otherwise fit and proper. Thereafter, registered general medical practitioners are subjected to ongoing statutory oversight. Now assume further that by a statutory provision general medical practitioners in that State can assess whether a person is entitled to a particular statutory payment and upon their certification the payment will be made. In one sense, the authority to certify the payment is a statutory function authorised by the registration. When the certification is carried out it might, in a loose sense, be said to be carried out 'under' the registration of the occupation as a general medical practitioner because only a registered general medical practitioner can certify. However, the registration itself is not conferred on the basis of whether a person can properly undertake the certification task. It is not part of the occupation that is being registered and is not part of the activities being conducted under that registration. Rather, the certification power is a consequence of registration. The activities being carried out under the registration are those professional activities that form part of the occupation of being a general medical practitioner. It is those activities in respect of which competence must be demonstrated in order to obtain registration, not competence in being able to undertake the assessment required to certify the statutory payments. Nevertheless, the existence of that competence is deployed by the legislation requiring a general medical practitioner to make the judgment required to determine whether to issue the certificate for the statutory payment.

13    In Board of Examiners under the Mines Safety and Inspection Act (WA) v Lawrence [2000] FCA 900; (2000) 100 FCR 255, a Full Court of this Court considered a challenge to a decision by the Tribunal in which the five step process outlined in Re Rowe had been followed. In the Full Court, French J described the relevant task to be performed under s 29(1) in the following terms (at [68]):

The occupation in respect of which registration is sought in the second State must be an equivalent occupation to that for which the applicant is registered in the first State. Equivalence is tested pursuant to s 29(1) by determining whether the activities authorised to be carried out under each registration are substantially the same whether or not that result is achieved by means of the imposition of conditions. That is a judgment to be made by reference to the terms and statutory context of the registration in each State. The passage adopted by the Tribunal in its 1997 decision in Re Rowe is a helpful approach to the application of s 29(1). But neither the terms of s 29(1) nor its application as explained in Re Rowe authorise the kind of inquiry which the Board would have the registration authority in the second State undertake, even if it were not precluded by s 21(4). In my opinion the Tribunal did not err in this respect and the second ground of appeal must fail.

14    Lee J, writing separately, noted the following characteristics of the terms of the Mutual Recognition Act (referred to as the MR Act) at [105]-[107]:

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.

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.

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.

15    Necessarily implicit in this description is a focus upon the underlying activities to be undertaken as part of the occupation in respect of which registration is required. It looks to the activities that comprise the registered occupation. It emphasises that the equivalency inquiry is in respect of the carrying on of the activities that comprise the registered occupation. It is the activities of that occupation to which there is to be regard in determining whether the activities to be carried out are equivalent.

16    The third member of the Court in Board of Examiners v Lawrence, Carr J, was in dissent. As to s 29(1) his Honour said at [154]:

Nor do I accept the second strand of the applicant's argument that is 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.

17    Therefore, to the extent that it deals with the issue, the decision in Board of Examiners v Lawrence points to s 29(1) requiring a comparison between the types of activities carried on as part of the occupation being regulated (which may or may not be detailed in the relevant legislation) rather than a comparison between the nature and extent of authority conferred by legislative provisions upon those who are registered.

18    The objective of mutual recognition as to occupations 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: Medical Board of Queensland v Renton [2006] FCA 947; (2006) 152 FCR 566 at [27] (Kiefel J). It forms part of a wider object, stated in the Mutual Recognition Act of promoting the goal of freedom of movement of goods and service providers in a national market in Australia: see the descriptions of the scheme and purpose of the legislation in Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 268 CLR 168 at [2]-[7] (Kiefel CJ, Bell and Keane JJ), [54]-[57] (Gageler J), [105]-[119] (Nettle and Gordon JJ); and the analysis by Griffiths J in Coca-Cola Amatil (Aust) Pty Ltd v Northern Territory of Australia [2013] FCA 154; (2013) 215 FCR 377. It applies the mutual recognition principle to occupations that are equivalent (see s 16(1)) not to equivalency in the statutory powers or authority that can be exercised by persons who are registered to carry out such occupations.

19    The scheme of the Mutual Recognition Act is that it confers an entitlement to registration on fulfilment of the notification provisions concerning registration in the first State. 'It does not suggest as necessary any further consideration of matters which it may be expected the first State has addressed when granting registration, such as fitness or suitability for the occupation': Victorian Building Authority v Andriotis at [26] (Kiefel CJ, Bell and Keane JJ).

20    Recently, in Board of Professional Engineers of Queensland v Gardner [2021] FCA 564, Logan J applied the reasoning of Kiefel J (as the Chief Justice then was) in Renton at [28]-[33] which may be summarised as follows:

(1)    The objective of the mutual recognition principle does not prevent a conclusion that there is no equivalent occupation in the second State.

(2)    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, or may be so with the imposition of conditions. That question is to be determined by reference to the terms and statutory context of the registration in each State.

(3)    The inquiry is as to whether the statute under which registration is granted in the first State itself authorises the activities of the profession in the second State. For the mutual recognition principle to operate, an affirmative answer is required.

(4)    To the extent, at least, that the legislation in the first State or the second State or both does not list the activities that are authorised then they must be taken to be the activities usually associated with the profession which is the subject of the registration. In some cases evidence may be necessary to identify those activities.

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

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

An issue as the application of the required approach in the present case

23    An issue arises in the present case as to the correct approach to be adopted where, as here, the activities that may be carried out in the second State as a result of registration include the grant of statutory permits or permissions which are not undertaken as part of the regulatory scheme in the first State. If the same occupational activities in terms of skill and expertise are undertaken in both States, does the conferral on the registered occupation of the statutory authority to issue the permits or permissions mean that the activities carried out under the registration in the second State are not equivalent because they include the 'activity' of issuing the statutory permits or permissions?

Relevant aspects of the case advanced for Mr Cau before the Tribunal

24    Before the Tribunal, Mr Cau was directed to file a statement of the submissions and further evidence upon which the he relied. His solicitor provided a comprehensive statement. Amongst other things, it specified the certificates of registration held by Mr Cau in Western Australia.

25    The submissions maintained that under the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), the registrations 'empowered' him to carry out the following building surveying works:

the examination of plans and specifications for a building or incidental structure to assess the safety, accessibility and energy efficiency of a building or incidental structure if the building or incidental structure is built in accordance with the plans and specifications; and

the examination of an existing building or incidental structure to assess the safety, accessibility and energy efficiency of the building or incidental structure.

26    They also described the provisions in the Building Act 2011 (WA) that required a certificate of design compliance by a registered independent building surveyor to be included with certain applications for approvals under the Act and how those applications must be made to a permit authority.

27    The submission explained how Mr Cau had been employed by the City of South Perth (a permit authority) as a senior building surveyor since July 2013. It described the delegated authority held by him to grant or refuse building and demolition permits, to grant, modify or refuse occupancy permits and to issue or revoke building orders under the Building Act 2011 (WA).

28    The submission then dealt with the role of a building surveyor in Victoria. It described the provisions of the Building Act 1993 (Vic) pursuant to which a private building surveyor issued with a certificate of registration may:

i.    issue building permits;

ii.    carry out inspections of buildings and building work;

iii.    issue certificates of final inspection and occupancy permits;

iv.    approve temporary occupation of buildings, and

v.    enforce safety and building standards through:

a.    giving and enforcing directions to fix non- compliant building work;

b.    causing a building notice to be served;

c.    making building orders.

29    It described the two classes of registration for building surveyors in Victoria and what was required in order to become registered in Victoria.

30    The submissions then compared the roles and functions of building surveyors in the two States. It submitted that the difference in permitted function was not on account of a building surveyor in Western Australia 'having less technical knowledge or proficiency than a Victorian building surveyor'. It observed that a building surveyor in Western Australia was 'not permitted by law to carry out some of the functions which a Victorian building surveyor is empowered to exercise'. The submissions then advanced the following contention which relied upon Mr Cau's particular position as the holder of a delegated authority form the City of South Perth:

Significantly in Western Australia, an appropriately qualified and registered building surveyor, employed by a Permit Authority, can through the delegated authority of the permit authority carry out the same functions as that of a registered Victorian building surveyor and more. That is a Western Australian building surveyor employed by a local government authority may also make and revoke emergency building orders in Western Australia, whereas a registered Victorian building surveyor has no such power.

31    It was then contended that 'accordingly' the occupation engaged in by building surveyors in the two States 'is substantially similar, if not, the same'.

32    It was then submitted that differences in the permitted activities between the two States 'is on account of legislative controls and restrictions imposed on the respective States building surveyors, rather than a difference in their qualifications or experience'. Reliance was also placed upon the functions performed by Mr Cau as an employee of the City of Perth. It was submitted that he was undertaking 'all of the functions which a Victorian registered building surveyor undertakes, and more'. The additional function was to the effect that Mr Cau in his role at the City of Perth could make and revoke emergency building orders.

33    The submission ultimately advanced was expressed as follows:

The occupation in which the applicant is engaged, and for which he requires a Western Australia registration is an equivalent occupation to that of a Victorian registered building surveyor.

The measure of 'equivalence' is not to be based solely on what functions a registration permits a practitioner to engage in, but rather what functions a practitioner is actually engaging in through the pursuit of his occupation.

The applicant, being engaged in an equivalent occupation, having applied for registration under section 19(1) of the MR.A is entitled to such registration, without further enquiry by the respondent.

34    It can be seen that there were two threads to the contentions advanced for Mr Cau. First, it was said that the comparison that was to be made was between what was actually being done, the nature of the functions being performed in the pursuit of the occupation of a building surveyor, rather than a comparison between the extent of legislative authority conferred to issue permits and the like. Second, in the particular case of Mr Cau, it was said to be relevant to consider the statutory authority that he held as a delegate of the City of Perth which meant the extent of his legislative authority to issue permits and the like was actually greater than that held by a registered building surveyor in Victoria.

The Tribunal's reasoning

35    The reasons given by the Tribunal member are expressed in the context of an earlier decision by a different Tribunal member in Yousefi and Victorian Building Authority [2018] AATA 3542. The decision in the matter of Yousefi also concerned a building surveyor. In its reasons in Mr Cau's case, the Tribunal summarised the required approach by adopting the view expressed by Senior Member Dr M Evans in Yousefi in the following way (para 8):

(a)    the determination of this application under the Mutual Recognition Act by the Tribunal does not involve a consideration of the Applicant's work history, experience, competencies and skills as a building surveyor. Where these matters are referred to in the present matter, it is in order to preserve the factual and chronological picture.

(b)    rather, an assessment of equivalence is a somewhat technical exercise which evaluates whether the activities undertaken in each registration are substantially the same.

(footnotes references to Yousefi omitted)

36    It may be noted that there are issues with the Tribunal approaching the matter in this way. The Tribunal is not a court. Its decisions do not determine the state of the law. It is the law as enunciated within the appellate structure of the Courts that must be applied, not other decisions by the Tribunal. Questions of fact must be determined on the basis of the material and contentions in the particular case not by applying determinations made in other matters. There is no principle of comity that applies. As to these fundamental matters, see the reasons of Martin CJ (Wheeler and Buss JJA agreeing) in Mustac v Medical Board of Western Australia [2007] WASCA 128.

37    By approaching the reasons on the basis of the view expressed in Yousefi that the required assessment was 'a somewhat technical exercise which evaluates whether the activities undertaken in each [place of?] registration are substantially the same' the Tribunal was distracted from the task of giving effect to the terms of the legislation as explained by Kiefel J in Renton. It failed to focus upon what was meant by the phrase 'activities authorised to be carried out under each registration' and adopted the notion expressed in Yousefi that the required task was 'somewhat technical'. As we will see, with due respect to the Tribunal, this approach was problematic.

38    Having framed the overall nature of the task by reference to Yousefi, the Tribunal then said (para 9):

The Authority shares Senior Member Dr M Evans' view that the present matter ought to proceed on the basis set out … above. Mr Cau, however, does not and considers that the Authority 'is taking a very narrow view of what registration actually means.' Mr Cau is of the view that his responsibilities, roles and experiences are demonstrative of the 'equivalency of the occupations'. Mr Cau considers that the task at hand is:

… not to look at what the actual statute empowers … [but to] have a look at what activities a person who is registered is conducting …

[to consider] whether the applicant is engaged in an equivalent occupation and therefore entitled to registration in Victoria …

(footnotes omitted, original emphasis)

39    The Tribunal then set out an exchange that occurred during the hearing with the lawyer acting for Mr Cau. In that exchange the case for Mr Cau was put in the following way (para 10):

The definition of registration is very significant in understanding what the Act is about. So the Act is not about a comparison of registration as such. It's actually about saying what activities does a person actually engage in on account of holding a registration. It's quite a different test.

…

… What we need to do is not look at what the actual statute empowers, what we need to do is have a look at what activities a person who is registered is conducting, and if those activities are very similar, and they don't have to be the same as the activities that are carried out in Victoria in this case, they are very similar, then we have an equivalent occupation and then by virtue of the Act in this case the applicant is entitled to be registered as a building surveyor in Victoria.

40    Accordingly, the submission advanced for Mr Cau was seeking to articulate a distinction between the authority that was conferred by the 'registration as such' by reason of 'what the actual statute empowers' (on the one hand) and the nature of the activities that are undertaken by a person holding the registration (on the other hand). After considering the submission advanced for the Authority in response, the Tribunal then said (para 12):

Therefore, the Tribunal proceeds on the basis that the correct approach is to compare the functions in the relevant legislation that are authorised by the relevant registrations.

41    It can be seen that the Tribunal introduced a focus upon 'functions in the relevant legislation' (emphasis added) rather than activities authorised under the registration. In doing so, the Tribunal failed to engage with the distinction that was being advanced for Mr Cau. On the one hand, registration was required in order to undertake activities as a building surveyor. On the other hand, the building legislation conferred particular authority on a registered building surveyor with respect to the process of obtaining various statutory permissions as a consequence of being registered. In Western Australia, the authority conferred under the building legislation was confined to providing certifications to be relied upon in the approval process. In Victoria the authority extended to actually granting permissions and making orders concerning non-compliance (being tasks that were undertaken by a permit authority in Western Australia).

42    A significant issue posed by the submissions for Mr Cau was whether the required comparison was between what might be termed the nature of the underlying activities carried out by a registered building surveyor under the authority of the registration (the application of skill and expertise in the examination of building plans and specifications and the inspection of buildings to assess safety, accessibility and energy efficiency) or whether the comparison extended to the statutory activities that may be performed by a building surveyor by reason of the form of statutory regulation of building in each of the two States (the functions of providing certificates or issuing permits and notices).

43    After setting out the competing submissions, the Tribunal then undertook its 'consideration'. It began by summarising the case advanced by Mr Cau in the following way (para 39):

At the hearing, the main focus of Mr Cau's submissions was the comparison between the activities authorised to be carried out by a registered building surveyor in Victoria and those that Mr Cau is authorised to carry out in his role as an employee of a government authority.

44    This was said to be flawed because it focussed upon authority that Mr Cau held as a delegate of the permit authority not as a registered building surveyor. For reasons that have been given, it stated the case as advanced by Mr Cau too narrowly.

45    The Tribunal then proceeded to adopt the reasoning in the earlier Tribunal decision of Yousefi forming an opinion that 'as a matter of statutory construction, the activities relating to the assessment and issuing of building permits in Western Australia and Victoria are quite different, and cannot be regarded as substantially similar' (para 42, original emphasis). The following aspects were emphasised:

(1)    The permits regime in Victoria was said to give the building surveyor far greater discretion and responsibility and in the area of building permits the activities exceed those required under Western Australia legislation.

(2)    Under the Victorian regime building surveyors undertake additional activities with respect to safety and compliance because they can issue notices and orders to require compliance being matters undertaken by a permit authority in Western Australia.

(3)    In Victoria a building surveyor issues a certificate of final inspection whereas in Western Australia an application for an occupancy permit is made to the permit authority.

(4)    There are some other differences whereby the Victorian building surveyor is empowered to undertake additional activities to those that a building surveyor is authorised to undertake in Western Australia.

46    These reasons focus upon differences between the statutory schemes regulating building activities in the two States. They assume that for the purposes of determining equivalency under s 29(1) of the Mutual Recognition Act, the 'activities authorised to be carried out' by registration include the exercise of the statutory authority conferred upon building surveyors in Victoria by the building legislation. They do not consider whether it is only the underlying occupational activities of a building surveyor that are to be undertaken under the registration in each of the two States that are to be compared.

The appeal grounds

47    The present application raises seven grounds.

48    The first two grounds were advanced together. They were to the effect that the Tribunal did not address or apply a correct legal view as to the nature of its task in determining whether the activities authorised to be carried out under each registration are substantially the same.

49    The third and fourth grounds were also advanced together and were to the effect that the Tribunal failed to apply the test it set for itself in that it did not compare the nature of the functions in the relevant building legislation in Western Australia for registered building surveyors with those carried out in Victoria. In particular, the Tribunal did not consider the asserted fact that the certificate issued by a building surveyor in Western Australia involved the same assessment as was undertaken in Victoria and the decision by the permit authority based upon that certificate involved the exercise of a 'ministerial or non-discretionary function' such that it was not the case that the issuing of building permits in Victoria involved far greater discretion and far more responsibility than in Western Australia.

50    The fifth ground was related to the third and fourth grounds because it was to the effect that one of the comparisons made between the activities undertaken under the two legislative schemes for regulating building activities was irrelevant where the occupation of building surveyor involved assessing compliance with such standards.

51    The sixth ground was related to the first and second grounds. It was to the effect that the Tribunal failed to take into account a relevant consideration being the fact that the activities of building surveyors in Western Australia and Victoria involve assessing compliance with various legal and statutory requirements relating to building and building work and that is an activity which satisfies the test of being 'substantially the same'.

52    The final ground was not pressed at the hearing.

53    Therefore, in substance, the grounds (save perhaps for ground six) depend upon the correctness of two propositions, namely:

(1)    The Tribunal failed to apply a correct understanding of what was required by s 29(1) of the Mutual Recognition Act because it compared the nature of the statutory functions performed by registered building surveyors in each of the two States rather than the underlying occupational activities that were authorised to be carried out by a registered building surveyor under its registration.

(2)    If the Tribunal was correct in comparing the nature of the statutory functions under the building legislation then it did not undertake the task that it set for itself, in particular because it did not consider and conclude that the certificates issued by a registered building surveyor in Western Australia were simply given effect by the permit authority such that in both States the discretion and responsibility was the same because it was the registered building surveyor who made the relevant assessment as to whether there was compliance with the applicable standards and it was that assessment that was acted upon.

54    The Authority disputed the correctness of the above propositions. It also said that the case advanced for the applicant in the Tribunal relied upon his activities as the holder of a delegation from the City of Perth. It submitted that the Tribunal was correct to approach the case advanced by Mr Cau on that basis. Therefore, so it said, any evaluation as to whether there was error by the Tribunal must be made on the basis of the nature of the case that was put to the Tribunal. On that basis, the grounds of appeal were said to assert error when there was no error because the Tribunal dealt with the case in the manner in which it was put by Mr Cau before the Tribunal.

The appeal is confined to a question of law

55    Mr Cau's appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). It confers a right to appeal to this Court 'on a question of law' from a decision of the Tribunal. There is no error of law in the Tribunal making what may described as mere factual error. The nature of an appeal on a question of law was summarised in the following terms by a five member Full Court in Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [194] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ):

We restate that the subject matter of an appeal under s 44 is a question or questions of law. We also restate that the appeal is not by way of rehearing; it is the exercise of original jurisdiction. Neither is it sufficient that the appeal merely involves a question of law. The correct approach, in our opinion, is to ask directly the question whether the appeal is on a question of law, without being diverted by whether or not the appeal raises a mixed question of fact and law. As the High Court said in Owens, the purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by the Federal Court but by the Tribunal. This distribution of function is critical to the correct operation of the administrative review process. See also O’Brien at 430 where Gibbs CJ, Wilson and Dawson JJ said that on an appeal under s 44 the appellate body should not usurp the fact-finding function of the Tribunal. But such fact-finding is an entirely different exercise from the evaluation of the fact-finding process of the Tribunal (as fact-finder) to decide upon its legality.

56    The final sentence marks out the limit of the extent of the evaluation of factual findings made by the Tribunal that may be undertaken on the basis that it involved the determination of a 'question of law'. The Court does not evaluate the correctness of the Tribunal's fact-finding but it may scrutinise the fact-finding for the purpose of determining whether it conforms in character to the nature of the fact-finding task that has been entrusted to the Tribunal.

57    The Court also has discretionary authority to make findings of fact as to matters that were before the Tribunal as part of its adjudicatory task, but only where those findings are not inconsistent with those findings of fact made by the Tribunal which are not themselves infected by an error of law: s 44(7). However, the Court does not do so in determining whether there was legal error. It only considers whether to exercise the discretionary authority if the determination of the questions of law relied upon by the applicant lead to the conclusion that there was an error of law. If the answer to the question of law relied upon by the applicant is that there has been legal error then factual findings may be made to enable the Court to exercise its broad power to make such order as it thinks appropriate by reason of its decision on the appeal: s 44(4). The considerations to be brought into account in deciding whether to do so are specified in s 44(7)(b). Speaking generally, they have to do with avoiding the inconvenience of referring the matter back to the Tribunal for determination whilst recognising that it is the Tribunal that is the primary repository of the fact finding function in respect of any application for review made to the Tribunal. It is for the Tribunal to consider the merits and for that purpose to evaluate the relevant material. The appeal on a question of law is provided to ensure that the Tribunal conforms to the requirements of the law in discharging its statutory responsibility and thereby stays within the confines of its statutory authority.

Did Mr Cau's case in the Tribunal depend upon his activities as the holder of a delegation from the City of Perth?

58    It is convenient to deal first with the claim by the Authority that the grounds as alleged advance a case that was not put before the Tribunal.

59    There is no doubt that before the Tribunal Mr Cau did rely upon his activities as the holder of a delegation from the City of Perth to support his application for review of the Authority's refusal of his application for registration as a building surveyor. However, I do not accept that his case was so confined. As I have explained, there were two strands to his claim. For reasons that have been given, an important part of his case in the Tribunal was to the effect that the Tribunal must focus upon the underlying occupational activities that were undertaken by a registered building surveyor in each of the States and not confine its consideration to a comparison between the statutory functions that could be performed by a registered building surveyor by reason of the form of the regulation of building activities in each of the two States.

60    The second strand involved a focus upon the activities that a person engages in 'on account of holding a registration'. This was not to limit the case to the activities of Mr Cau (particularly those he could carry out under the legislation regulating building activities as the holder of the delegation). Rather, it was to articulate a case to the effect that it was the occupational activities of the holder of a registration that were required to be the subject of comparison. If the occupations in the two States were substantially the same measured by reference to the activities that were the subject of the registration then the Mutual Recognition Act conferred an authority to registration in the second State based upon the registration in the first State.

61    In its reasons at para 32, the Tribunal presented a table in which it set out certain of the submissions advanced by the Authority concerning the 'equivalency test' and the submissions advanced by Mr Cau in reply. The first two expose the differences between them.

62    The first submission by the Authority was that '[i]t is relevant to compare the activities authorised by the Victorian registration … against the activities authorised by Mr Cau's WA registrations'. Mr Cau disagreed with that submission saying: 'The comparison is not of the activities authorised by the registrations, but rather what activities are permitted to be carried out by Mr Cau on account of holding such registration'. This statement by Mr Cau expresses succinctly the second strand of his case.

63    The second submission by the Authority was as follows:

Mr Cau has provided evidence to the Authority and to the Tribunal about his professional experience and his competencies in building surveying work. This evidence is irrelevant to the assessment of equivalency under the Mutual Recognition Act and to any other question before the Tribunal.

64    In reply, Mr Cau disagreed and stated: 'The role and activities carried on by Mr Cau on account of holding a registration is fundamental in assessing the equivalency of the occupation under the Act'. Expressed in those terms, the response perhaps merges the first and second strands of his case. However, it does not detract from the way in which the second strand is elsewhere expressed.

65    In oral submissions to the Tribunal, the lawyer acting for Mr Cau was asked whether his case was that the position of Mr Cau was different (in effect because of his delegation) or whether he would disagree with the proposition that a Victorian building surveyor has greater responsibility and discretion that a Western Australian building surveyor. In response, the lawyer said that he disagreed with the latter proposition. He then went on to say:

I disagree with that as well on the basis that in Victoria, a building surveyor can act for a private entity. So a building surveyor in Victoria can actually certify plans and issue building permits direct to a person who wishes to carry out some construction works. The difference in Western Australia is that the person wishing to carry out building works needs to make an application for a building permit to a permit authority. The building surveyor in Western Australia carries out exactly the same function as a building surveyor in Victoria, save and except that it certifies those plans as being compliant to the relevant laws for the relevant codes, for the permit authority.

66    The point being made is that the underlying occupational activity is the same in each case. It is a point that does not depend upon Mr Cau being the holder of the delegated authority from the City of Perth.

67    Therefore, I do not accept the Authority's submission that Mr Cau is foreclosed from advancing the grounds that he seeks to raise in the appeal.

Did the Tribunal proceed on an incorrect understanding of what was required by s 29(1)?

What was the understanding of s 29(1) of the Mutual Recognition Act that was applied by the Tribunal?

68    The first matter to consider is the understanding of s 29(1) that was applied by the Tribunal.

69    As has been noted, the Tribunal began its analysis by adopting the approach in Yousefi which led it to proceed on the basis that the correct approach was 'to compare the functions in the relevant legislation that are authorised by the relevant registrations' (para 12). It involved focussing upon the differences between the two States as to what a registered building surveyor could do under the two regimes for regulating building activities. It focussed solely upon the authority conferred upon a registered building surveyor in the legislation regulating building activities. It directed no consideration to the nature of the activities that were considered in deciding whether to register a person as a building surveyor in each of the two States and were covered by the authority conferred by that registration.

70    Significantly, no part of the Tribunal's reasons involved a consideration of the activities that formed part of the occupation of a building surveyor or the nature and extent of those occupational activities which a registered building surveyor could undertake. As had been the case in Yousefi, the Tribunal focussed solely upon the statutory authority that a registered building surveyor could exercise under building legislation if registered not whether there was any difference in the underlying occupational activities that were evaluated as part of the application for registration and which were the subject of the registration.

71    Therefore, the understanding of the Act that the Tribunal applied was to the effect that the words 'activities to be carried out under each registration' referred to the statutory authorities that could be exercised by a registered building surveyor under building legislation in each of the two States. It treated those words as referring to the authority conferred upon registered building surveyors by the scheme that regulated building activities rather than upon the activities of the occupation for which those persons were registered.

Did the Tribunal's approach to s 29(1) accord with the Mutual Recognition Act?

72    The next matter to consider is whether the Tribunal's approach to the meaning to s 29(1) accorded with the terms of the legislation.

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

74    It is logically conceivable that a registration may be confined to the authority to do such things. So, returning to the example given earlier in these reasons concerning the registered general medical practitioner, assume that instead of the authority to certify being conferred upon registered medical practitioners there is a requirement that persons be registered as an approved certifier in order to issue the relevant certificates that are needed to qualify for the statutory payment. It may be that one of the requirements to be registered to issue the certificates is that the person be a registered general medical practitioner. However, in such a case, the registration as a person who can issue the certificates would not mean that there is 'an occupation for which persons may be registered'. The authority to issue a particular statutory certificate would not be an occupation.

75    However, no party suggested that registration as a building surveyor in either of the two states was not a registration as an occupation. That being so, it was the activities that were covered by the registration as a building surveyor that were significant. The Tribunal simply failed to consider whether there was equivalence as to such activities.

76    The Authority is established under the Building Act 1993 (Vic) and, amongst other things, is required to administer the scheme in Part 11 of the Act for the registration of building practitioners. It has detailed provisions concerning applications for registration, for the formulation of codes of conduct and the supervision of conduct by disciplinary proceedings. A building surveyor is one category of 'building practitioner' for the purposes of the Act. The term 'building surveyor' is not defined in the Act. Therefore, it will be afforded its ordinary meaning.

77    Section 169D of the Building Act 1993 (Vic) provides that it is an offence to carry out work as a building surveyor unless registered.

78    In submissions for the Authority, reference was made to the Building Regulations 2018 (Vic). Regulation 259 states that a person who is registered as a building surveyor is authorised to carry out work as set out in Schedule 10. However, that list is not a list of the activities that the registered building surveyor is authorised to carry out under the registration as a building surveyor. Rather, the list contemplates that all the occupational activities of a building surveyor are covered by the registration. Then, for the purposes of the building legislation, the registered building surveyor is authorised by the Regulations to undertake the functions that are needed in order to issues permits, approvals, certificates and the like under the legislation. The authority to do so thus arises as a consequence of being registered as a building surveyor. However, for reasons that have been given, it is the activities that can be carried out under the registration of the occupation of building surveyor that must be substantially the same as the activities of a registered building surveyor in Western Australia.

79    In submissions for Mr Cau, reference was made to the Building Services (Registration) Act 2011 (WA). It regulates the activities of building service practitioners. It provides that a person must not use a particular title as prescribed by regulation unless the person is registered in the class of practitioner that is entitled to use the title: s 4. Registration in a class of building service practitioner entitles the person registered to carry out the prescribed service and use the title as prescribed: s 11.

80    The Building Services (Registration) Regulations 2011 (WA) prescribe different levels of building surveyor. The use of various titles using the term 'registered building surveyor' are prescribed. Therefore, in Western Australia there is also a scheme by which a person who wants to practice the occupation of building surveyor must be registered.

81    So both in Western Australia and in Victoria there is a requirement that a building surveyor be registered. In order to be registered, an application must be made and, on the face of the legislation at least, it must be supported by information concerning the skill and expertise of the person applying in order to carry on the activity of being a building surveyor. Once registered, the authority conferred under the registration is to carry on business as a building surveyor.

82    Further, in both States the regulation of building activities requires that certain permits must be obtained and that there can be notices and certificates of non-compliance. In key respects registered building surveyors can do things for the purposes of the regulation of building activities by reason that they are registered. However, the conferral of that legislative power on registered building surveyors is a consequence of their registration. Those activities are not carried out under the registration, they are authorised to be carried out by persons who have authority to carry out particular activities under their registration as a building surveyor.

83    Instead of considering whether the activities authorised to be carried out by the registration as a building surveyor were substantially the same, the Tribunal applied an approach which focussed upon the role that a registered building surveyor could perform under the particular legislative scheme in the two states for regulating building activities. A consequence of being registered was that a building surveyor could undertake those roles. In the consequential sense, registration meant that those activities could be carried out. But it was the activities of a building surveyor by occupation that were authorised by the registrations as a building surveyor.

Was there error of law in the Tribunal's approach?

84    The final matter to consider is whether the Tribunal's approach manifested an error of law. For the Authority a submission was advanced to the effect that it was a matter for the Tribunal to evaluate whether the activities were substantially the same. It was suggested that its evaluation as to whether that was the case was an error of fact or at least not a kind of error for which there could be an appeal under s 44 of the AAT Act. I do not accept that submission. The Tribunal's error was to misconceive the nature of its task under the legislation. In consequence, it inquired into the wrong factual matters. Instead of focussing on the activities that formed the extent of the occupation that was the subject of the registration as a building surveyor in each of the two States (being the activities conducted under the registration) it considered the consequential statutory authority that might be exercised by a person so registered (being activities that could be conducted under the building legislation by reason of the registration). In so doing, it committed a legal error.

Did the Tribunal carry out the task that it set for itself of comparing the functions carried out by registered building surveyors under the legislation regulating building activities?

85    The grounds that depend upon the proposition that the Tribunal did not carry out the task it set for itself only arise if the grounds that depend upon the first proposition fail. For reasons that have been given the first proposition advanced for Mr Cau should be upheld. Therefore, it is not necessary to consider the alternative appeal grounds. However, I will briefly state my conclusions as to the second proposition.

86    In my view the second proposition has not been established. The Tribunal did compare the functions. The submissions advanced for Mr Cau in argument accepted that it was not relevant to bring to account the authority that Mr Cau had as a delegate of the City of Perth in making the required comparison.

87    On the assumption (contrary to the views already expressed) that the task of the Tribunal was to compare the nature and extent of the authority conferred upon registered building surveyors by the scheme for the regulation of building activities, it was a matter for the Tribunal to evaluate whether that those statutory activities were substantially the same. It did so by adopting the analysis of the statutory provisions undertaken in Yousefi. It was not submitted that the Tribunal, in doing so, abdicated its task. Given the nature of the (assumed) task the Tribunal could make its own determination to the same effect as that undertaken in Yousefi. It involved a comparison of the statutory provisions to determine whether the functions were substantially the same.

88    Further, the contention to the effect that the scheme in Western Australia was the same because the permit authority simply gave effect in a non-discretionary way to the certification by the registered building surveyor was not advanced on the basis that a submission to that effect had been put to the Tribunal. Therefore, there could be no error in not considering that aspect of the factual inquiry.

89    Otherwise, the submissions reduced to a complaint of a kind that invited the Court to undertake the evaluation that was entrusted to the Tribunal. A complaint of that kind did not assert any error of law.

Outcome

90    It follows that Mr Cau has succeeded in establishing the substance of grounds 1 and 2. He has failed as to grounds 3, 4 and 5 which depend upon the correctness of the second proposition in differing respects. It is not necessary to determine whether the error of law that I have identified leads to upholding ground 6 in the terms in which it is expressed.

Relief

91    Mr Cau seeks an order that the decision by the Tribunal be set aside and it follows from my reasons that such an order should be made. He then seeks an order that he be granted registration in Victoria as a registered building surveyor. He relies upon a submission to the effect that Kiefel J in Renton indicated that such an order might be made in an appropriate case. However, what was contemplated by her Honour was a declaration of entitlement to registration on the basis that there could be only one outcome based upon the Court's reasoning: at [34].

92    No doubt there may be cases in which the Court may exercise its discretion to make the necessary factual determinations to make such an order allowing an application on appeal. However, despite the apparent merit in Mr Cau's claim, I am not persuaded that such an order should be made in the present case. In this instance the error has caused the Tribunal to undertake the wrong inquiry. Therefore, it has expressed no view at all concerning the appropriate comparison. This is not an instance where the Court can, by making some additional obvious findings, supplement the facts determined by the Tribunal. Rather, the whole task has miscarried. Further, neither of the parties made comprehensive submissions as to the findings that should be made in order to lead to the making of such an order. Therefore, the appropriate order is that sought by Mr Cau in the alternative, namely remitter to the Tribunal.

93    As the application has been successful, the appropriate order as to costs is that Mr Cau's costs of and incidental to the application be paid by the Authority. I do not consider this to be a case where there should be any adjustment to reflect the extent to which the grounds raised have not succeeded. It was accepted that there should be a costs order that would follow the event in such circumstances. I will order the assessment of those costs on a lump sum basis by a registrar if they are not agreed.

Associate:

Dated:    3 February 2022