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[2018] FCAFC 24
Federal Court of Australia (Full Court)
2018-02-21
Rangiah JJ
Original judgment source is linked above.
Introduction 83 The applicant ("Mr Andriotis") "appeals" from a decision of the Administrative Appeals Tribunal ("AAT") dated 27 March 2017, affirming the refusal by the Victorian Building Practioners Board ("Board") of Mr Andriotis's application for registration as a waterproofer in Victoria. Mr Andriotis sought registration in Victoria under the Mutual Recognition Act 1992 (Cth) ("MR Act") on the basis of his having previously obtained a licence to practice as a waterproofer in New South Wales. The AAT refused Mr Andriotis's application for registration on the ground that Mr Andriotis did not meet the "good character" requirement imposed by s 170(1)(c) of the Building Act 1993 (Vic) ("Victorian Act"). The decision of the AAT is published as Andriotis and Building Practitioners Board [2017] AATA 378. 84 Mr Andriotis's challenge raises three issues for determination by this Court. Broadly stated, they are: (1) Whether the AAT erred by applying the "good character" requirement contained in the Victorian Act. Mr Andriotis contended that the "Mutual Recognition Principle" embodied in Part 3 of the MR Act precluded the AAT from imposing restraints on registration found in Victorian laws in circumstances in which Mr Andriotis was duly registered in New South Wales. It was contended that the AAT misconstrued Part 3 of the MR Act in determining that it was entitled to consider Mr Andriotis's character; (2) In the alternative to the first ground, if the AAT was entitled to consider Mr Andriotis's character, whether the AAT erred through its failure to exercise a residual discretion to allow Mr Andriotis's registration notwithstanding any finding that Mr Andriotis was not of good character; and (3) Whether, by the operation of s 21 of the MR Act, the Board was compelled to grant Mr Andriotis's registration by default, having made its determination to postpone the initial decision outside the one month time limit imposed by s 21 of the MR Act. 85 Mr Andriotis's third ground relied upon him establishing that the Board's decision to postpone fell outside of the one month limit. Mr Andriotis made an interlocutory application seeking to adduce additional evidence as to that issue. 86 Finally, the respondent ("Authority"), by a Notice of Contention, contended that it was open on the material before it for the AAT to have refused Mr Andriotis's application on alternative grounds, namely, that Mr Andriotis's application was attended by fraud or that his notice of registration under s 19 of the MR Act contained "materially false or misleading" statements. 87 We have had the advantage of reading in draft the reasons for judgment of Flick J and we gratefully adopt without here repeating the recitation of the background to this proceeding as well as the relevant statutory provisions there set out. We agree with his Honour's resolution of Mr Andriotis's interlocutory application. We also agree that the appeal should be allowed, but do so for the reasons that follow.
Was the AAT entitled to consider Mr Andriotis's "good character"? 88 The AAT held that the registration requirement made by s 170(1)(c) of the Victorian Act, that the Board be satisfied that the applicant for registration "is of good character", fell within what the AAT regarded as the exception made by s 17(2) of the MR Act. The AAT reasoned (at [28]) that good character was not "some qualification or experience relating to fitness to carry on the occupation" and was thus not caught by the s 17(2)(b) qualification to the exception in s 17(2). Whether the s 170(1)(c) good character requirement of the Victorian Act fell within the exception as a law that regulated "the manner of carrying on an occupation" was not expressly considered by the AAT and seems to have been presumed. 89 On the appeal, much of the argument concentrated on the second issue and some but, in our view, insufficient attention was given to the first. 90 It is convenient to commence with the first issue and the AAT's conclusion that the condition of character is not caught by the words "some qualification or experience relating to fitness to carry on the occupation" as they appear in s 17(2)(b) of the MR Act. 91 The word "qualification", particularly when found in the phrase "some qualification", is of broad import. The plain and natural meaning of "qualification" in the context of a provision dealing with the conferral of a right or status is that it simply means a condition or circumstance required for acquiring the right or status. A "qualification" will be a condition of eligibility or suitability for the right or status in question. Such a condition may be educational or skill-based such as the holding of a diploma or degree but, unless the context requires, the word "qualification" is not so limited. It may extend to all manner of conditions including, for example, residency. We do not accept the Authority's contention that the natural meaning of the word "qualification" does not encompass the condition of character. Just like physical characteristics or qualities, a person's moral characteristics, are apt to constitute a condition of suitability for the conferral of some right or status and, in our view, are encompassed by the ordinary and natural meaning of the word "qualification" when used in that context. 92 The Authority also contended that in the context in which it is used "qualification" meant a technical qualification and did not encompass character. We accept that there is some attraction to the idea that in the context of a provision dealing with a person's registration in an occupation, technical or skill based qualifications are likely to have been front of mind in the drafting of s 17(2)(b). But the contention that that was all that was in mind when the word "qualification" was chosen is unpersuasive. Conditions of suitability of a person for an occupation commonly involve broader considerations then technical qualifications and, as the Victorian Act demonstrates, character is not uncommonly a condition of suitability for an occupation. Additionally, the words "possession" and "fitness" utilized by s 17(2)(b) are each apt for use in relation to character as a condition of suitability and tellingly, the Act itself specifies "character" as an example of what it means by "qualification". That is done in the s 4 definition of "occupation" which provides (emphasis added): occupation means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted. 93 Absent good reason, an Act should be construed on the basis that throughout its provisions the same word or phrase is intended to be used consistently: Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618 (Mason J, with whom Barwick CJ and Jacobs J agreed); Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55 at [21] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ); Kline v Official Secretary to the Governor General (2013) 249 CLR 645 at [32] (French CJ, Crennan, Kiefel and Bell JJ). 94 The meaning of the word "qualification" in s 17(2)(b) is to be determined by reference to considerations of text, context and purpose: Talacko v Bennett [2017] HCA 15 at [65] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). Those considerations may establish that the natural or ordinary meaning of "qualification" is not its intended meaning in s 17(2)(b) or an intention to use the word "qualification" in s 17(2)(b) in a different manner than its use elsewhere. 95 We turn then to those considerations. Our conclusion is that there is nothing in the text, context or purpose of the MR Act which makes it evident that character is not encompassed by the word "qualification" when used in s 17(2)(b). In reaching that conclusion, it is also convenient to address the second issue of whether a law which requires good character as a condition of registration is a law that regulates "the manner of carrying on an occupation". 96 However, we should first record that some support for the proposition that good character is not what s 17(2)(b) means by the word "qualification" can be found in the judgment of the Full Court of the Supreme Court of Western Australia in Re Tkacz; Ex parte Tkacz [2006] WASC 315 at [66], where Martin CJ, Murray and Templeton JJ said this: So, the language of s 17(2) of the MRA (Cth) is replicated in s 20(4) of that Act, relating to continuance of registration. The long-standing capacity of the superior courts to determine that only the persons with the requisite personal qualities of character be admitted to, or remain on, the Roll would not easily fit within the description of "some qualification or experience". Accordingly, that capacity of the superior courts, including the Supreme Court of Western Australia, remains unaffected by the mutual recognition legislation. 97 The AAT relied on this passage in the process of reaching the conclusion it did. Moreover, the Authority relied upon the passage in support of its contention that the word "qualification" did not include character. 98 The Full Court did not expressly consider the natural and ordinary meaning of the word "qualification". Nor, is it apparent that the use of "qualification" to include the condition of character in the definition of "occupation" was drawn to the Court's attention. In any event, what seems to have moved the Court to its conclusion was not the criterion of character itself but the longstanding capacity reposed in a superior court of law, as part of its inherent jurisdiction, to determine whether a person holds the requisite personal qualities to justify the grant of permission to practice as a legal practitioner in the courts. The observation made is specific to its stated context. It is not an observation that, removed from that context and as a matter of general application, the condition of character is not encompassed by the word "qualification". The observation made is distinguishable from this case on that basis. 99 Turning then to the scheme of Part 3 of the MR Act, it is necessary to notice two things found in s 3 which set out the Act's principal purpose. First, that the legislation has been authorised by the Parliaments of the States under paragraph (xxxvii) of s 51 of the Constitution (Cth) and requested by the legislatures of the Australian Capital Territory ("ACT") and the Northern Territory ("NT"). It is not legislation imposed upon the States and Territories by the Commonwealth. The Explanatory Memorandum to the MR Act explains the relevant background at [4]-[6]: 4. In October 1990, Heads of Government agreed in principle to work towards implementing a scheme of mutual recognition throughout Australia with the aim of removing inefficiencies brought about by varying standards and regulatory regimes in the different jurisdictions and ensuring the goal of freedom of movement of goods and labour in the national market. The agreement was reached in the context of enhancing the flexibility and competitiveness of the Australian economy. 5. Further agreement in principle was reached on 30 July 1991 by Heads of Government to implement a scheme to provide for mutual recognition of standards for goods and of qualifications for practising occupations. Following a period of public consultation, Premiers and Chief Ministers at their meeting in Adelaide in November 1991 agreed on draft legislation to implement this scheme. 6. At their meeting on 11 May 1992, Heads of Government signed a final agreement, endorsing a revised version of the legislation which is substantially that now proposed for enactment. It was agreed that the legislation would be enacted in each State by 31 October 1992, and by the Commonwealth by 1 January 1993. It was also agreed that proclamation of the Commonwealth Act should occur by 1 March 1993. Each jurisdiction is to use its best endeavours to achieve this result. The agreement also included mechanisms for considering exemptions and for reviewing the operation of the scheme. 100 The second matter emphasised by s 3 is that the MR Act was enacted for the "purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia". 101 Before continuing we should indicate that the word "State" is defined in the MR Act to include the ACT and the NT. We will hereafter use "State" consistently with that meaning. 102 Turning then to Part 3 itself which is headed "Occupations", it is important to observe that s 16(1) states that "[t]he mutual recognition principle as applying to occupations is as set out in this Part" (emphasis added). While s 17 is an expression of the Part 3 mutual recognition principle, the terms of s 17 must be read with the remainder of the provisions of Part 3 which give the principle its colour and practical effect. It is also necessary to appreciate, as is stated by s 16(2), that the Part 3 mutual recognition principle is not simply concerned with registration but "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" (emphasis added). In other words, the mutual recognition principle is also concerned with providing an entitlement to carry on the work of an occupation. This is made explicit in s 17(1)(b). 103 Both of those observations tell against a central contention made by the Authority to the effect that the mutual recognition principle is found in s 17(1), that it is addressing registration only and that s 17(2) imposes an exception to s 17(1). The better view is that the mutual recognition principle is set out in Part 3, is concerned with registration as well as the ability to carry on an occupation and that s 17(2) provides an exception, not to s 17(1) but to the mutual recognition principle as set out in Part 3. 104 The entitlement of a person already registered in one State to be registered in a second is principally addressed by s 19, s 20(1)-(3) and s 23. Section 19 provides for an application to be made seeking registration in the second State. Section 19(2) states the conditions necessary to exist (those that must be verified by statutory declaration: s 19(5)) for the entitlement to be registered to crystallise (see Re Petroulias [2004] QCA 261 at [19]-[20] (de Jersey CJ) and [48] (McMurdo P)), including that the person seeking registration is not the subject of any disciplinary proceedings or action that might lead to disciplinary proceedings in any State (s 19(2)(d)). 105 Section 20(2) provides that registration in the second State "may" be granted on the basis of the ground expressed by s 20(1). That ground is that a person who has complied with s 19 is entitled to be registered as though that person's registration in the first State "is a sufficient ground of entitlement to registration" in the second State. 106 The word "may" in s 20(2) is used in its permissive sense to identify when the local registration authority is empowered to grant registration. Contrary to the Authority's contention, it does not connote a general discretion to refuse registration on any basis. When s 20(2) is read with s 23 it is evident that s 20 is not concerned with the subject of refusal of registration and that the bases for refusal were intended to be the subject of the latter provision. In other words, the power to refuse is distinct from the power to grant registration. If it were the case that the exception specified by s 17(2) has operation in relation to the grant of registration itself, s 20(2) does not confer a local registration authority with a discretion to apply it as a basis for refusal. 107 Section 23(1) expresses the grounds upon which registration "may" be refused. The first two grounds deal with a failure to meet the requirements of s 19 and the third concerns the lack of equivalence between the occupation for which registration exists in the first State and that for which registration is sought in the second State. No other grounds for refusal are elsewhere expressed in the MR Act. Again, the word "may" seems to be used in the permissive sense to specify the grounds upon which a local registration authority is empowered to refuse registration. 108 In our view, and contrary to the Authority's contention, the provision does not provide a capacity for a local registration authority to refuse the grant of registration on any ground or, alternatively, any ground consistent with the purpose of Part 3. That registration could be refused on any ground is untenable. A capacity of that kind would serve to undermine the very objective of the MR Act. To construe the provision as intending to allow additional grounds for refusal but limited to those that are consistent with the purpose of Part 3, is also unattractive. Section 23(1) is not silent on those grounds which consistently with the purpose of Part 3 provide a basis for refusal. It has specified those grounds. The specification of those grounds ought not be regarded as partial rather than complete or inclusive rather than exhaustive unless there was some basis for so doing. 109 Reading s 20(2) with s 23(1), it seems to me that what was intended was that where the ground for registration specified in s 20(1) is established, registration must follow unless one or other of the grounds of refusal specified by s 23(1) is established. 110 The idea that registration remains optional in the hands of the local registration authority, despite the existence of the ground for registration and the non-existence of any of the stated bases for refusal is unattractive. Such a construction is not supported by the text and would tend to defeat the evident intent of the MR Act. Unless one or other of the grounds of refusal has application, a person who has applied for registration and complied with s 19 is entitled to registration in the second State on the basis that registration in the first State suffices to establish that person's suitability for registration. 111 The Authority's submission that a discretion is reposed in the local registration authority to refuse registration on a basis beyond that specified by s 23(1) may have had more force if the absence of such a discretion led to there being no work to do for the exception contained in s 17(2). However, that is not the case. Whilst neither ss 20(2) or 23 (or any other provision) provides room for its operation in relation to the grant or refusal of registration, there is room for the operation of the exception. The exception relates to the second aspect of the Part 3 mutual recognition principle dealing with the entitlement to carry on the occupation in the second State. That matter is principally the subject of ss 20(3)-(5) and also s 33. 112 It is helpful to set out ss 20(3)-(5): 20 Entitlement to registration and continued registration … (3) Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State. (4) Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws: (a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and (b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation. (5) The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person's registration in the first State or that are necessary to achieve equivalence of occupations. 113 As is made apparent by s 20(4), the laws of the second State have qualified primacy in relation to the continuance of a person's registration. The laws that Parliament must have here had in mind as having that primacy, are laws dealing with the way in which work is carried out by persons already registered in the second State. A perfectly acceptable means of expressing laws of that kind would be "laws that regulate the manner of carrying on an occupation". That is the expression utilised by s 17(2) and when it is appreciated that the terms of paragraphs (a) and (b) of s 20(4) precisely mirror the terms of paragraphs (a) and (b) of s 17(2), the conclusion that s 17(2) and s 20(4) are dealing with the same subject matter seems irresistible. In our view, s 20(4) is intended to give practical expression to the exception contained in s 17(2). Both provisions are dealing with laws that regulate the post-registration carrying on of an occupation. It is those laws of the second State, rather than laws regulating registration itself, that are given qualified primacy. That construction is consistent with the plain and natural meaning of the phrase "the manner of carrying on an occupation". 114 Furthermore, if the qualified primacy of which s 17(2) speaks was intended to be provided to laws of the second State which regulate registration it may have been expected that that would have been expressly stated as has been done for laws regulating the continuance of registration. It is unlikely, in the circumstances, that that matter would have been left to an implication and that such an implication was intended to support an implied ground of refusal of registration to supplement the express grounds specified by s 23(1). 115 The evident mischief that the qualification to the exception in s 17(2) addresses also supports the construction that we prefer. As Mr Andriotis contended, the purpose of the s 17(2)(a) and (b) qualifications is protective. Those paragraphs seek to ensure that a law of the second State which deals with the manner in which an occupation is carried out does not impose a qualification or experience requirement for carrying out work which would render hollow the entitlement to registration conferred by s 17(1). For example, if the more onerous qualification requirements for registration in the second State were replicated as conditions of carrying out work for that occupation, a person registered pursuant to less onerous qualification requirements in the first State would be entitled to registration in the second State but would nevertheless be unable to carry out work in the second State without meeting the more onerous qualification requirements for carrying out the work of the second State. In those circumstances, the more onerous qualification requirements of the second State would be paramount and the MR Act's objective of providing for mutual recognition largely undermined. The avoidance of a mischief of that kind is also the evident concern of s 20(4) and (5). 116 We turn then to consider the contention that the construction contended for by Mr Andriotis would lead to absurd or perverse results and ought to be avoided for that reason. In our view, the contention mischaracterises an inherent and understood imperfection of a mutual recognition scheme as an absurdity or perversion. 117 The need for a scheme of mutual recognition such as provided for by the MR Act is based upon the existence of disuniformity in the requirements for occupational registration as between the various States. If uniformity existed there would be no need for mutual recognition. In the context of there being more onerous requirements in some States and less onerous requirements in others, a mutual recognition scheme has the inherent disadvantage that registration standards will fall to the lowest common denominator. That will inevitably mean that there will be persons registered in the second State despite those persons being regarded by the laws of that State as unsuitable in the sense that the person does not meet the registration requirements of that State. 118 But that the scheme for mutual recognition should encompass that result is not an absurdity. Rather, it is a result that must have been expected and a potential disadvantage which must have been regarded as a reasonable price to pay for the economic benefits which motivated the enactment of the scheme. That evident inference is confirmed in the extrinsic material: Department of the Parliamentary Library (Cth), Bills Digest Service: Mutual Recognition Bill 1992, 2 December 1992. 119 There is a further premise upon which the scheme is based which supports the construction that we prefer. As the relevant Minister said in the Second Reading Speech to the Bill which became the MR Act (Commonwealth, Parliamentary Debates, House of Representatives, 3 November 1992 at 2433 (Ross Free)): The underlying premise for mutual recognition is that the existing regulatory arrangements of each State or Territory generally provide a satisfactory set of standards. 120 In other words, an underlying premise for mutual recognition was that each of the States has regulatory standards which ought to be regarded as satisfactory by all or, in other words, the regulatory oversight of one State could be trusted to provide sufficient regulatory protection to a second State in relation to the registration in the second State of a person regarded as suitable by the first. As an underlying premise that idea permeates the approach taken by the MR Act and explains the MR Act's restrictive approach to the capacity of the second State to impose its own set of requirements. 121 That the intent of the scheme is that the second State should accept as sufficient the registration requirements imposed by the first State is apparent from the following observation made in the Second Reading Speech which, it may be noted, expressly addresses the question of character as a relevant qualification. The Minister (Commonwealth, Parliamentary Debates, House of Representatives, 3 November 1992 at 2433 (Ross Free)) said this: Local registration authorities will be required to accept the judgment of their interstate counterparts of a person's education or qualifications, experience, character or fitness to practise 122 That statement by the Minister was regarded by the AAT at [13] as being out of accord with a careful reading of the legislation. Extrinsic material does have its limitations, but we respectfully disagree with the view reached by the AAT. Putting to one side the position of admission of a legal practitioner into practice (a matter which need not be addressed here), as we have sought to explain, a careful reading of the relevant text suggests that the Minister was correct to include "character" as one of the judgments made by the first State that a second State is required by the MR Act to accept when determining whether registration should be granted. 123 That does not mean that the second State is left bereft of any protection. Section 33 provides that, subject to a review by the second State, if a person's registration in an occupation in the first State is cancelled or suspended or is made subject to a condition on disciplinary grounds then the person's registration in the equivalent occupation in the second State is affected in the same way. Subject to the limitations there specified, conditions upon registration may be imposed by the second State in accordance with s 20(5). That provision, on its face, appears to be of broad import, and may play a substantial role in the second State's regulation of ongoing registration of interstate practitioners. Further, as already observed, s 20(4) in dealing with the continuance of registration provides qualified primacy to the laws of the second State. 124 Additionally, compliance with s 19 remains necessary. It deals in a broad way with the necessity for an applicant to be free of disciplinary sanctions imposed by the first State including the potential for such sanction. A further protection for the second State is found in s 19(1). Under that provision, only a person who is "registered" in the first State is eligible to lodge written notice with the local registration authority of a second State seeking registration in accordance with the mutual recognition principle. The provision must be construed such that registration obtained by fraud in the first State does not fall within its scope. The law's abhorrence of fraud is reflected in Lord Denning's statement in Lazarus Estates v Beasley [1956] 1 QB 702 at 712 that "Fraud unravels everything" (see also SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [15]-[22] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ). The legislature cannot be supposed to have intended that a person who has obtained registration in a State through fraud should obtain the benefit of the mutual recognition principle. It is open to a local registration authority to refuse the application on the basis that such a person is not eligible to lodge, and has not lodged, "a notice under section 19" as is required by s 20(1). 125 For all of those reasons we have concluded that the AAT erred in determining that it was entitled to take into account and apply the good character qualification required by s 170(1)(c) of the Victorian Act. That provision is a law which deals with registration. It is not a law that regulates "the manner of carrying on an occupation" within the meaning of s 17(2) as the AAT seems to have presumed to have been the case. Further, even if that is so, the AAT was wrong to conclude that the good character requirement imposed by s 170(1)(c) of the Victorian Act was not a "qualification" within the meaning of s 17(2)(b) of the MR Act and that accordingly the application of that provision was not excluded by the s 17(2)(b) qualification to the exception otherwise provided by s 17(2).
Failure to exercise discretion 126 By this ground of appeal, pressed by Mr Andriotis in the alternative, Mr Andriotis contended that if the AAT had a discretion to refuse his registration under s 20(2) of the MR Act and the character requirement in s 170(1)(b) had application, the AAT operated under the misapprehension that if it found that Mr Andriotis was not of good character it was required to affirm the decision of the Board. In doing so, Mr Andriotis contended that the AAT erred by failing to appreciate and consider that by either s 20(2) of the MR Act or s 170(1)(b) of the Victorian Act it had a residual discretion to grant registration despite its finding that Mr Andriotis was not of good character. 127 The reasons of the AAT do not, in our respectful view, support the conclusion that the AAT grappled with whether, as a matter of discretion, Mr Andriotis's registration ought to be granted despite the finding that he was not of good character. 128 The Authority's submission on this ground was short and may be set out in full (citations omitted): [29] The Tribunal's reasons for decision gave clear reasons as to why the refusal to grant registration was considered to be correct. The Senior Member, having heard the Applicant give evidence, and all the other evidence given in his case, found not just that he was not satisfied that the Applicant was of good character but made a positive finding that he "is not of good character". He also held that the evidence supporting the Applicant's application for registration was "materially defective and misleading"; that he had "not demonstrated a respect for and compliance with the law and has not acted diligently and reliably in fulfilling his obligations to [the] Tribunal" and that he had made other false statements in support of his application to the Tribunal. The Senior Member also found that the evidence "clearly disclosed" that the Applicant "has no respect for the law or for technical and professional codes and standards which apply to the building industry" and "had not dealt forthrightly, honestly and with candour with registration and regulatory authorities". It was also relevant to the discretion that the Senior Member found that the Applicant had "admitted that he was not familiar with the Building Act or regulations or codes dealing with building. It necessarily follows that he could not demonstrate respect for or compliance with legislative provisions in the building industry". [30] Even if the Tribunal did not explicitly identify these matters as informing the exercise of the discretion to refuse registration, it was evident from the findings referred to above why the Tribunal considered this was the appropriate outcome. 129 In substance, the Authority submits that various adverse findings as to the conduct of Mr Andriotis were made which were relevant to the exercise of discretion. However, acceptance of that contention does not travel far enough. Each of those findings were relevant to a consideration or whether or not a finding should be made that Mr Andriotis was not of good character and, as we read the AAT's reasons, that was the sole use made by the AAT of those findings. 130 However, whilst there is force in Mr Andriotis's complaint, if it were the case that the AAT was entitled to have regard to character and Mr Andriotis was reliant on this ground alone to justify a remitter for the purpose only of the AAT considering the exercise of the discretion, we would have declined to make such an order. That the decision-maker retained a discretion demands considerable caution before relief should be refused on the basis of futility. However, on the facts as found by the AAT it must be considered "crystal clear" (Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [95]-[100] (Griffiths and Moshinsky JJ); Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69 at [12] (Bromberg J) and at [45] (Bromwich J)) that any remitter limited to the exercise of the discretion would not favour Mr Andriotis. The nature and extent of the adverse findings made by the AAT in support of its conclusion that Mr Andriotis was not of good character are very serious and are were not subject to displacement by any facts that were found by the AAT to be supportive of Mr Andriotis's registration. Nor did Mr Andriotis's counsel suggest that there existed on the material before the AAT any additional facts which might assist Mr Andriotis on any such remitter. In those circumstances to remit the matter would be an exercise of futility.
Postponement of Registration 131 The second issue which arises for determination may be dealt with more briefly. That issue concerns the discretion given to a local registration authority by s 21(3) of the MR Act to "within one month after the notice [s 19] was lodged, postpone or refuse the grant of registration". Mr Andriotis had initially contended that the Board had purported to postpone the grant of his registration outside of the one month period provided for by s 21(3) with the result that s 21(4) operated to compel registration and that the AAT had erred in not so finding. 132 That argument had not been put to the AAT and was not dealt with in the AAT's reasons. It was the subject of extensive written submissions from the parties, but on the appeal Mr Andriotis was forced to concede that there was no factual basis upon which he could rely for his assertion that the postponement made by the Board had been made outside of the one month period provided for by s 21(3). 133 As a result, Mr Andriotis's submissions moved to an alternative challenge which, for the first time, raised the validity of the postponement made by the Board. That argument is not encompassed by Mr Andriotis's grounds of appeal and was the subject of limited oral submissions. 134 Mr Andriotis relied on s 24 of the MR Act which requires a notice in writing of a decision to postpone the grant of registration be provided to the person who has lodged the s 19 notice. Mr Andriotis contended that an obligation to provide reasons may be implied from the terms of s 24. The contention was left undeveloped and we are not persuaded that it has merit. In any event, on 3 July 2015, the Board sent an email to Mr Andriotis stating that "[t]he Board has not yet finalised its assessment of your application and is therefore postponing the grant of registration under s 22 of the MR Act until 1 September 2015". It seems to me that if there was an obligation to give reasons for the postponement that was done. Whether those reasons should be regarded as sufficient was not the subject of any contest. 135 There was a hint of a submission raised by Mr Andriotis that postponement could only occur if a ground for postponement consistent with the grounds listed in s 22(1) existed. That submission raises a question as to whether the grounds there listed are intended as exhaustive or not. Again, this was not a contention raised before the AAT nor raised by Mr Andriotis's grounds of appeal and was left undeveloped. As a matter of fairness to the Authority, we do not consider that it would be appropriate for the contention to be entertained. 136 There is no basis for Mr Andriotis to succeed in relation to the Board's postponement of the grant of his registration.
The Authority's Notice of Contention 137 It is not necessary to address the contentions sought to be advanced by the Authority's Notice of Contention. 138 Both of the contentions raised by the Notice of Contention would involve this Court either making findings of fact not made by the AAT or relying upon findings which were made by the AAT but which the Authority conceded to have been made in the absence of procedural fairness being accorded to Mr Andriotis. 139 Ultimately, the Authority conceded that if Mr Andriotis succeeded on his appeal, the matters raised in its Notice of Contention should (insofar as they remained relevant) be considered by the AAT on remitter. That, in our view, is the appropriate course.
Conclusion 140 We have determined that the AAT erred in concluding that it was entitled to take into account and apply the good character qualifications required by s 170(1)(c) of the Victorian Act. On that basis, Mr Andriotis is entitled to an order that the decision of the AAT be set aside and that the case be remitted to the AAT to be heard and decided again according to law. Given that adverse findings about the credibility of Mr Andriotis were made by the Member who made the decision under appeal, it seems appropriate that on remittal the AAT be differently constituted. Having expressed that view so that it may be taken into account, we consider it appropriate to leave that issue for determination by the President of the AAT. Without disturbing the order for costs made on 3 November 2017, an additional order should be made that the Authority pay Mr Andriotis's costs of the appeal. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Bromberg and Rangiah.
Andriotis
Victorian Building Authority
Lazarus Estates v Beasley [1956] 1 QB 702 Medical Board of Queensland v Renton (2006) 152 FCR 566 Perkins v County Court of Victoria [2000] 2 VR 246 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Re Petroulias [2005] 1 Qd R 643 Re Tkacz; Ex parte Tkacz (2006) 206 FLR 171 Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55 Registrar-General of Land v New Zealand Law Society [2001] 2 NZLR 745 Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123 Scott v Law Society of Tasmania [2009] TASSC 12 Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 Talacko v Bennett [2017] HCA 15
Flick J: 1 In March 2015, the Applicant in the present proceeding, Mr Nickolaos Andriotis, was issued with a licence by New South Wales Fair Trading. That licence was an "Endorsed Contract Licence - Waterproofing". 2 In June 2015, Mr Andriotis lodged an application with the Victorian Building Practitioners Board (the "Board") seeking registration in that State as a "Domestic Builder Class W - Waterproofing". He sought registration pursuant to the Mutual Recognition Act 1992 (Cth). In doing so he relied on his New South Wales licence. 3 In November 2015, the Board rejected Mr Andriotis' application. Mr Andriotis applied to the Administrative Appeals Tribunal for review of the Board's decision. In March 2017, the Tribunal affirmed the Board's decision: Re Andriotis and Building Practitioners Board [2017] AATA 378. The Tribunal concluded that Mr Andriotis was not of "good character" as required by s 170(1)(c) of the Building Act 1993 (Vic). 4 Mr Andriotis now "appeals" to this Court from the decision of the Tribunal. The Respondent to the present proceeding is the Victorian Building Authority, namely the Authority established under s 193 of the Building Act and entrusted with the function (inter alia) of monitoring and enforcing compliance with the Act (s 197(a)). The "[q]uestions of law" which this Court is asked to resolve and the "[g]rounds relied on" are set forth at considerable length in a Supplementary Notice of Appeal filed on 20 June 2017. Essentially, however, the appeal involves three separate issues, namely: whether Mr Andriotis was "entitled" to registration in Victoria by reason of the comparable licence he held in New South Wales or whether the Tribunal was correct in refusing his registration on the basis that it found him to be a person not of "good character"; whether the Tribunal was "compelled" to register Mr Andriotis by reason of his having lodged his application without it being postponed or refused within a statutory period of one month; and whether there was any exercise of a discretion to refuse registration and whether any such discretion was properly exercised. 5 In addition to the "appeal", there is also before this Court: an Interlocutory Application filed on behalf of Mr Andriotis seeking to adduce evidence before this Court in addition to that which was before the Administrative Appeals Tribunal; and a Notice of Contention filed on behalf of the Board, seeking to support the decision of the Tribunal on either of two alternative bases - namely, that it was open to the Tribunal to have refused registration either on the basis of "fraud" or the making of a "materially false or misleading" statement. The second of the issues raised on the appeal and the Interlocutory Application are interrelated - the Interlocutory Application was seeking to adduce evidence as to whether the Board did in fact postpone registration. 6 Although framed as an "appeal", the jurisdiction of this Court which is being invoked pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is the Court's original - and not appellate - jurisdiction: H v Minister for Immigration and Citizenship [2010] FCAFC 119 at [4], (2010) 188 FCR 393 at 395 per Moore, Kenny and Tracey JJ. Pursuant to s 44(3) of the Administrative Appeals Tribunal Act, the Chief Justice has determined that the original jurisdiction be exercised by the Full Court as presently constituted. The reason for that determination is that a number of other proceedings are pending in the Administrative Appeals Tribunal awaiting the decision in the present proceeding. 7 The proceeding first came before the Full Court on 3 November 2017. At the outset of the hearing on that day, Mr Andriotis' legal representatives sought leave to withdraw from the proceeding. Leave was granted. The application made by Mr Andriotis for an adjournment of the hearing of the appeal was granted and the hearing was adjourned to 14 November 2017. By consent, an order was made for Mr Andriotis to pay the costs thrown away by reason of that adjournment. 8 At the resumed hearing of the appeal on 14 November 2017, Mr Andriotis was represented by both Senior and Junior Counsel. So, too, was the Authority. 9 The appeal should be allowed with costs. The Notice of Contention should be dismissed.
The Commonwealth Mutual Recognition Act 13 The legislative objective of recognising qualifications obtained in one State in other Australian States and Territories is to be found in the Mutual Recognition Act. That Act was enacted pursuant to s 51(xxxvii) of the Commonwealth Constitution, namely the power of the Commonwealth Legislature "to make laws for the peace, order, and good government of the Commonwealth with respect to … matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States". The Act was passed by the Commonwealth Parliament as envisaged by an intergovernmental agreement made on 11 May 1992 between the Commonwealth, the States and the self-governing Territories: Coca-Cola Amatil (Aust) Pty Ltd v Northern Territory [2013] FCA 154 at [13], (2013) 215 FCR 377 at 381 to 382 per Griffiths J. That agreement had been preceded by "a series of meetings of the Heads of Government of the Commonwealth, States and Territories, which had been conducted over two years or more with the objective of achieving better relations between the governments to improve the operation of the national economy": Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123 at 130 per Lockhart J ("Sande"). 14 The long title to the Commonwealth Act thus states that it is: An Act to provide for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupations Section 3 sets forth the Act's "principal purpose" as follows: The principal purpose of this Act is to enact legislation authorised by the Parliaments of States under paragraph (xxxvii) of section 51 of the Commonwealth Constitution, and requested by the legislatures of the Australian Capital Territory and the Northern Territory, for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia. The "principal aim [of the Act] was to remove artificial barriers to interstate trade in goods and the mobility of labour caused by regulatory differences among Australian States and Territories": Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence [2000] FCA 900 at [12], (2000) 100 FCR 255 at 261 to 262 per French J. Writing extra-judicially, Griffiths J has stated that the object of the Act "is directed to ensuring the goal of freedom of movement of goods and labour in the Australian national market": Recognition of Foreign Administrative Acts: Report from Australia to the XIXth International Congress of Comparative Law (Paper presented at XIXth International Congress of Comparative Law, Vienna, July 2014) at 19. 15 Part 2 of the Mutual Recognition Act deals with "Goods". Part 3 deals with "Occupations". Section 4 defines the term "occupation" in wide terms. That definition is as follows: occupation means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted. 16 Within Pt 3, s 17(1) sets forth the "mutual recognition principle". Section 17(2) sets forth an "exception" to the "mutual recognition principle". 17 Section 17 in its entirety provides as follows: Entitlement to carry on occupation (1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation: (a) to be registered in the second State for the equivalent occupation; and (b) pending such registration, to carry on the equivalent occupation in the second State. (2) However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws: (a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and (b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation. In determining whether there is an "equivalent occupation", the Act must be "applied in a practical, common sense manner, regard being had to the substance of the matter and to the substantial equivalence of occupations": Sande (1996) 64 FCR at 127 to 128 per Davies J. Mr Sande, who was a "land broker" in South Australia there unsuccessfully applied in Queensland for registration as a conveyancer. The occupation of conveyancer had been "phased out" in Queensland. Another member of the Full Court, Lockhart J, concluded (at 145): To uphold the submissions of Mr Sande would be to transform the Act from one which seeks to facilitate the right of Australians entitled to practise in one State or Territory to pursue their vocations throughout Australia without submitting themselves to examinations or obtaining qualifications required by another region, into an Act which forces the will of one State upon another, when the historical development of each has been different, in some cases profoundly different. This is not a conclusion which the Act requires. The third member of the Court (Spender J) agreed with the reasons of both Davies and Lockhart JJ. The "mutual recognition principle" thus has no operation where one State does not provide for the registration of an occupation or profession: Medical Board of Queensland v Renton [2006] FCA 947 at [33], (2006) 152 FCR 566 at 575 per Kiefel J. 18 Section 15 of the Trans-Tasman Mutual Recognition Act 1997 (NZ) contains a mutual recognition principle which is in comparable terms to the Mutual Recognition Act and provides for the registration in New Zealand of an individual who is registered in Australia in an equivalent occupation. In applying that Act, the New Zealand Court of Appeal has concluded that the occupation of a "landbroker" in New Zealand was an existing occupation which was equivalent to a "landbroker" in South Australia: Registrar-General of Land v New Zealand Law Society [2001] 2 NZLR 745 at 746 [2], 755 [35] per Richardson P, Gault, Keith, Blanchard and Tipping JJ. While provisions of the Law Practitioners Act 1982 (NZ) prohibited anyone other than a barrister or solicitor holding a practicing certificate from conveyancing in New Zealand, the Court held that those provisions related to qualifications and so would be inapplicable to a person entitled to registration pursuant to the Trans-Tasman Mutual Recognition Act: at 755 [38]. 19 In commenting upon s 17(2) and the "exception" there provided for, Greenwood J in Broadbent v Medical Board of Queensland [2011] FCA 980, (2011) 195 FCR 438 at 472 observed: [152] … The mutual recognition principle is expressly subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in another state so long as those laws apply equally to all registrants and are not based upon the possession of some qualification relating to fitness to carry on the occupation (s 17(2)). 20 Also within Part 3, s 19 provides as follows: Notification to local registration authority (1) A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle. (2) The notice must: (a) state that the person is registered for the occupation in the first State and specify that State; and (b) state the occupation for which registration is sought and that it is being sought in accordance with the mutual recognition principle; and (c) specify all the States in which the person has substantive registration for equivalent occupations; and (d) state that the person is not the subject of disciplinary proceedings in any State (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations; and (e) state that the person's registration in any State is not cancelled or currently suspended as a result of disciplinary action; and (f) state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any special conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any State; and (g) specify any special conditions to which the person is subject in carrying on any such occupation in any State; and (h) give consent to the making of inquiries of, and the exchange of information with, the authorities of any State regarding the person's activities in the relevant occupation or occupations or otherwise regarding matters relevant to the notice. (3) The notice must be accompanied by a document that is either the original or a copy of the instrument evidencing the person's existing registration (or, if there is no such instrument, by sufficient information to identify the person and the person's registration). (4) As regards the instrument evidencing the person's existing registration, the person must certify in the notice that the accompanying document is the original or a complete and accurate copy of the original. (5) The statements and other information in the notice must be verified by statutory declaration. (6) The local registration authority may permit the notice to be amended after it is lodged. 21 Section 20, also within Pt 3, addresses as follows the "entitlement" to registration of a person who has lodged a notice under s 19: Entitlement to registration and continued registration (1) A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration. (2) The local registration authority may grant registration on that ground and may grant renewals of such registration. (3) Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State. (4) Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws: (a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and (b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation. (5) The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person's registration in the first State or that are necessary to achieve equivalence of occupations. (6) This section has effect subject to this Part. 22 Section 21 provides as follows: Action following notice (1) Registration must be granted within one month after the notice is lodged with the local registration authority under section 19. (2) When granted, registration takes effect as from the date the notice was lodged. (3) However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration. (4) If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved. 23 Section 22 addresses the circumstances in which an application for registration may be "postponed" and provides as follows: Postponement of registration (1) A local registration authority may postpone the grant of registration if: (a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or (b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or (c) the circumstances of the person lodging the notice have materially changed since the date of the notice or the date it was lodged; or (d) the authority decides that the occupation in which registration is sought is not an equivalent occupation. (2) If the grant of registration has been postponed, the local registration authority may in due course grant or refuse the registration. (3) The local registration authority may not postpone the grant of registration for longer than a period of 6 months, and the person is entitled to registration immediately at the end of that period, unless registration was refused at or before the end of that period. (4) Nothing in subsection (3) prevents earlier registration from being granted on a review by the Tribunal. 24 Section 23 provides for the circumstances in which registration may be refused and provides as follows: Refusal of registration (1) A local registration authority may refuse the grant of registration if: (a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or (b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or (c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions. (2) A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate. 25 During the Second Reading Speech in the Commonwealth House of Representatives on 3 November 1992 (Australia, House of Representatives, Debates (1992) vol 186, p 2433) it was then stated: If someone is assessed to be good enough to practice a profession or occupation in one State or Territory, then they should be able to do so anywhere in Australia.
The authorities 26 The provisions of the Mutual Recognition Act have arisen for judicial consideration on a limited number of occasions. But those occasions have provided some clarification of the provisions of that Act which, it may be noted, are not without some difficulty of interpretation and application. 27 The first of these occasions arose in 2004 when the Queensland Court of Appeal published its decisions in Re Petroulias [2004] QCA 261, [2005] 1 Qd R 643. In that case, Mr Petroulias applied under the Mutual Recognition Act for registration in Queensland as a solicitor based upon his registration as a solicitor in Victoria. In making his application, however, he had failed to disclose the fact that he had been charged with indictable offences under the Crimes Act 1914 (Cth). The Guidelines which had been issued by the Judges of the Queensland Supreme Court also required a number of declarations to be made, including declaration 10 that a person seeking registration knew of no other matter that might bear on his fitness to be registered as a solicitor in Queensland. Mr Petroulias had not included that declaration in his application. The result in the case was that the matter was remitted to the Registrar of the Court with advice that Mr Petroulias's registration as a solicitor in Queensland should be set aside. In so concluding, de Jersey CJ observed (at 651): [19] In view of these circumstances, Mr Petroulias could not make the declaration required by s. 19(2)(d) of the [Mutual Recognition Act], because he was in fact subject to a "preliminary investigation … that might lead to disciplinary proceedings" in relation to his registration as a solicitor in Victoria. By statutory declaration, he verified the inaccurate para. 6 of the form he submitted. Because of that inaccuracy, which relates to matters of serious potential relevance to his being registered as a solicitor, the notice did not accord with s. 19, and the notice was consequently not apt to crystallise the entitlement to registration in Queensland provided for by s. 20. The Chief Justice further addressed as follows a submission directed to the declaration required by the Guidelines (at 651 to 652): [23] Mr Glynn did however separately submit that requiring a declaration in terms of para. 10 cannot amount to "a lawful requirement under the Act", and it is convenient to address that submission, notwithstanding the reference is sufficiently answered by dealing with s 19(2)(d) and para. 6 of the notice. Mr Glynn's submission as to para. 10 was in these terms: "The Act identifies those matters, and only those matters, which may be required to be disclosed, and if that information is provided and is not materially false or misleading, the Applicant cannot be bound to provide additional material. A failure to provide additional material is thus of no consequence. To provide otherwise defeats the purpose of the legislation which, it is submitted, is to require the registration of a person in an occupation which requires registration in one state, where the person has registration in an equivalent occupation in another state subject to the provision of identified information and documentation." [24] It would follow, on that submission, that even were a solicitor, registered in Victoria, convicted of a criminal offence involving very serious dishonesty, he would be entitled to registration in Queensland under this legislation while ever he remained on the Victorian roll. [25] On the other hand, Mr Burns, who appeared for the Queensland Law Society, submitted that "an applicant does not have an absolute entitlement to registration merely by reason of the fact of his or her entitlement to practise in another State. If that were so, all that would be required to be notified in order to obtain registration would be that fact." He submitted that having received a notice under s. 19, the local registration authority must embark on a "process of assessment", in the course of which it may exercise certain discretions (for example, to postpone (s. 22) or refuse (s. 23) registration), and be informed through the independent enquiries authorised by the notice as envisaged under s 19(2)(h). [26] That provision obliges an applicant, via the notice, to "give consent to the making of inquiries of, and the exchange of information with, the authorities of any State regarding the person's activities in the relevant occupation or occupations or otherwise regarding matters relevant to the notice." That licence assumes the relevance of matters which may fall outside the strict confines of s. 19(2)(d) for example. The expression "information … regarding the person's activities in the relevant occupation … or otherwise regarding matters relevant to the notice" is broad, and would embrace the pendency of serious criminal charges alleging among other things dishonesty. … [27] Compliance with the requirement introduced by the current para. 10 of the form merely facilitates the gathering of information as contemplated by s. 19(2)(h), albeit from the applicant directly rather than the authorities of the other State. [28] Mr Glynn submitted that the mechanism to deal with this sort of situation is reconsideration of the admission elsewhere which enlivens the right to apply here under s. 19, as by disciplinary proceedings under s. 33. Were, for argument's sake, Mr Petroulias's registration in Victoria to be suspended, then his registration here would suffer the same fate by force of s 33(1). [29] But the local registration authority is not so hamstrung. It is difficult to conceive the legislatures intended a local authority would be obliged to register a person in Mr Petroulias's situation if made aware of the pendency of such charges. Consistently, by s. 19(2)(h), they contemplated independent inquiries, by that authority, "regarding the person's activities in the relevant occupation …". [30] It would be detrimental to the public interest, and untenably inconvenient, were the legislation to require the local authority to register an applicant in that case, and thereby hold him out as fit to practise in this jurisdiction, pending separate proceedings in the other State to determine, for example, whether his registration should be suspended. That is why the local authority is not by the legislation denied all discretion, and is equipped with a capacity for independent inquiry the results of which may inform the exercise of that discretion. 28 The second occasion arose in the decision of the Full Court of the Supreme Court of Western Australia in Re Tkacz; Ex parte Tkacz [2006] WASC 315, (2006) 206 FLR 171. Mr Tkacz had been admitted to legal practice in New South Wales following disclosure of a prior conviction for a criminal offence. He sought admission as a legal practitioner in Western Australia. Although he was successful in obtaining admission in Western Australia, the Full Court of the Supreme Court of Western Australia also concluded that the Mutual Recognition Act did not deprive that Court of its inherent power to regulate who it admitted to practice pursuant to the Legal Practice Act 2003 (WA). In so concluding, Martin CJ, Murray and Templeman JJ observed (at 186 to 187): The Mutual Recognition Act 1992 (Cth) [62] We have set out s 17 of the [Mutual Recognition Act] at [22]. The qualification to the mutual recognition principle set out in subs (2) of that section is of particular significance. [63] The [Legal Practice Act 2003 (WA)] is a law that regulates the manner of carrying on the occupation of legal practitioner in the State of Western Australia. It recognises the power of the Court to refuse to admit a person to the practice of that occupation even though he or she may have all the specified qualifications or experience necessary to fit them to carry on that occupation. It is a law which applies equally to all persons carrying on or seeking to carry on the occupation of legal practitioner in Western Australia. Accordingly, the clear and express effect of s 17(2) of the [Mutual Recognition Act] is to provide that the mutual recognition principle does not affect the operation of that aspect of the LPA. [64] Section 20 of the [Mutual Recognition Act] should be read and construed consistently with the clear purpose and effect of s 17(2). So, where s 20(1) refers to a law of the second State expressly providing that "registration in the first State is a sufficient ground of entitlement to registration" it should be taken to be a reference to a sufficiency of the qualifications or experience necessary to secure registration. Moreover, the proposition that s 20(1) was not intended to compel registration in the second State contrary to the exception to the mutual recognition principle expressly established by s 17(2) is reinforced by s 20(2) of the [Mutual Recognition Act], which provides: (2) The local registration authority may grant registration on that ground and may grant renewals of such registration. [65] The use of the word "may" rather than the imperative "shall" is consistent with the approach reflected in the High Court's decision in Re Davis [(1947) 75 CLR 409] and with the scheme of provisions such as s 28 of the [Legal Practice Act 2003 (WA)]. That conclusion is further reinforced by s 20(4) of the [Mutual Recognition Act] which provides: (4) Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws: (a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and (b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation. [66] So, the language of s 17(2) of the [Mutual Recognition Act] is replicated in s 20(4) of that Act, relating to continuance of registration. The long-standing capacity of the superior courts to determine that only the persons with the requisite personal qualities of character be admitted to, or remain on, the Roll would not easily fit within the description of "some qualification or experience". Accordingly, that capacity of the superior courts, including the Supreme Court of Western Australia, remains unaffected by the mutual recognition legislation. The same approach has been endorsed in the Supreme Court of New South Wales: Comeskey v New South Wales Bar Association [2015] NSWSC 824 at [40] per Hidden J. 29 The third of the authorities canvassed at the hearing was the decision of the Full Court of the Supreme Court of Tasmania in Scott v Law Society of Tasmania [2009] TASSC 12. The primary Judge in that case had ordered the name of Ms Scott be removed from the roll of legal practitioners in Tasmania. Findings were made as to professional misconduct and unprofessional conduct. The appeal was dismissed. In the course of doing so, however, Crawford CJ referred to Ms Scott having obtained registration in Tasmania pursuant to the Mutual Recognition Act and her registration in the Northern Territory. After Ms Scott had lodged her intention to apply for admission in Tasmania, the Law Society of the Northern Territory made a finding against her as to unprofessional conduction and resolved that she be admonished. These findings were not disclosed as part of her application for registration in Tasmania. In that context, the Chief Justice observed: [45] If she had been so aware at the time she lodged the application and as a result could not have truthfully included the statement required by s 19(2)(d) in her notice, she would have been prohibited from proceeding with it, for the statement was a requirement for a successful application. Plainly, her notice misled the Master for the statement that conformed with para(d) was erroneous at the time of lodgement. As a practitioner of another court and an applicant for admission in this State, it was her plain duty to inform the Master that the statement was erroneous, once she became aware of the Northern Territory complaint. Her failure to do so amounted to a breach of her obligation of candour that she owed to the court. The other two members of the Full Court, Slicer and Evans JJ, agreed with the Chief Justice. 30 These decisions go beyond a consideration of the inherent jurisdiction of superior courts over those persons admitted to practice as legal practitioners and extend to detailed consideration of the terms of the Mutual Recognition Act.
The exercise of discretion - s 20 65 The final argument relied upon by Mr Andriotis asserted a misapplication or misconstruction of a discretion to refuse registration. The source of any discretionary power was potentially to be found in either: the Mutual Recognition Act; and/or the Victorian Building Act. Neither Act assists Mr Andriotis. His final argument is rejected. 66 As to the former Act, it is concluded that the Mutual Recognition Act confers no general discretionary power to refuse registration other than that conferred by s 23. 67 In very summary form - and at its most simple - the scheme of the Mutual Recognition Act is essentially twofold, namely: to establish the "mutual recognition principle" to further the "purpose" set forth in s 3 of that Act and a scheme whereby that principle was to be administered and applied by the States and Territories in accordance with the reference invoking s 51(xxxvii) of the Constitution; and to leave it to the States to make laws "regulat[ing] the manner of carrying on an occupation" as permitted by the exception in s 17(2). 68 The former aspect of this scheme is reflected, obviously enough, throughout the Act. Relevantly for present purposes, however, ss 20(2) and 23(1) both employ the discretionary term "may". Both are expressed in discretionary terms. But s 20(2) does not confer any unstructured discretion to refuse to grant registration. Section 20(2) is an enabling provision which confers power upon what is there referred to as a "local registration authority" to grant registration by reference to registration that has been secured in (in this case) New South Wales. That is the limit of the power conferred. Notwithstanding the term "may", s 20(2) is not a conferral of a generally expressed discretionary power to refuse registration to a person who has secured registration elsewhere. It is not understood that Re Tkacz; Ex parte Tkacz [2006] WASC 315 at [64] to [65], (2006) 206 FLR 171 at 187 was suggesting any contrary construction of s 20(2). And, likewise, s 23 is simply the "mirror image" of what follows from s 19(1), (2) and (3). If there is no "equivalent occupation" (s 19(1)) or if any of the statements or information in the notice required by s 19(2) is "materially false or misleading" or if any document that accompanies the notice (s 19(3)) is "materially false or misleading", a discretionary power is conferred in such circumstances to refuse the grant of registration. Section 23, on such an approach, does not purport to go beyond the conferral of a discretionary power to give effect to the scheme set forth in the Mutual Recognition Act and, in particular, s 19 of that Act. 69 Subject to the resolution of the Notice of Contention, on the facts of the present case, Mr Andriotis did not fall within the reach of s 23. Although the "entitlement" conferred upon Mr Andriotis by s 19(1) to seek registration in Victoria was an "entitlement" expressed to be "subject to" Pt 3 of the Mutual Recognition Act (s 17(1)), the discretion conferred by s 23(1) was not enlivened. 70 As to the latter Act, s 170(2) of the Victorian Building Act does expressly confer a discretionary power to refuse registration. But the provisions as to registration provided for in that Act, including s 170, it has been concluded, must yield to the entitlement to registration conferred by the Commonwealth Act. Those State provisions, it has been concluded, do not fall within s 17(2) of the Commonwealth Act. 71 Some reservation would nevertheless have been expressed with accepting the submission that the Administrative Appeals Tribunal had not in any event properly exercised any discretionary power vested in it. Section 43(1) of the Administrative Appeals Tribunal Act, of course, vests in the Tribunal the power to "exercise all of the powers and discretions" of the primary decision-maker. 72 In the present case, it was submitted on behalf of Mr Andriotis that "the Tribunal plainly operated under the apprehension that, if it found that the Applicant was not of good character, it had to affirm the VBP's [sic] decision". 73 There was no doubting the fact that the Tribunal had affirmed the Board's decision, as it stated at para [143] of its reasons, "on the grounds that [Mr Andriotis] was not of good character". 74 But two reservations may be expressed with respect to the argument sought to be advanced. 75 First, although the Tribunal expressly stated "the grounds" upon which it proceeded, it nonetheless made findings going well beyond findings as to an absence of "good character". Clearly enough, the Tribunal expressed its own state of satisfaction as to Mr Andriotis not being a person of "good character" at (inter alia) paras [137] to [143] of its reasons for decision. The Tribunal, however, went beyond these findings and made additional findings, including: a finding that Mr Andriotis' application for registration in Victoria was "materially defective and misleading" (at para [140]); a finding that Mr Andriotis had "not acted diligently and reliably in fulfilling his obligations to [the] Tribunal" (at para [135]); and a finding that Mr Andriotis had not "dealt forthrightly, honestly and with candour with registration and regulatory authorities" (at para [142]). Such additional findings arguably expose a consideration by the Tribunal of matters trespassing beyond a mere evaluation of "good character" and an analysis as to whether a decision refusing registration was the "correct" decision to be made having regard to all of the findings considered to be of relevance. It would arguably have been unnecessary for the Tribunal to have made such findings if the approach being pursued by the Tribunal was simply to affirm the decision solely by reason of the adverse findings as to Mr Andriotis' character. 76 Second, although the concluding statement at para [143] of the reasons does not expressly recognise that the Tribunal had a discretion to grant registration, even given its adverse assessment as to his character, so much is arguably implicit. Although the statement in para [143] that the Board's decision was the "correct" decision is equally consistent with both an approach on the part of the Tribunal that it had no discretion as it is with an approach that it retained a discretion, that statement could potentially be regarded as but a shorthand way of expressing that the refusal of registration was the "correct or preferable decision": Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 591 per Bowen CJ and Deane J. That is the primary task entrusted to the Administrative Appeals Tribunal by s 43 of the Administrative Appeals Tribunal Act. It may have been difficult to conclude, had it been necessary to do so, that the Tribunal was not cognisant of one of its most fundamental obligations. 77 It has proved unnecessary to resolve the fate of either of these reservations. Given the conclusion that the relevant Victorian provisions did not fall within s 17(2) of the Mutual Recognition Act, s 170 of the Victorian Act was not an available source of discretionary power. 78 Even if such reservations had have been resolved in favour of Mr Andriotis, further reservation would have been experienced in granting relief. Given the extent of the findings made by the Tribunal and its adverse assessment as to Mr Andriotis' character, it may have been an exercise in futility to remit the proceeding to the Tribunal to exercise the discretion to grant or refuse registration. There is no doubting the conclusion of the experienced Tribunal member that Mr Andriotis' attempt to secure registration in Victoria was to be rejected.
[2009] TASSC 12
[2000] VSCA 171
(2000) 100 FCR 255
(2011) 195 FCR 438
(2013) 215 FCR 377
(1979) 24 ALR 577
(2010) 188 FCR 393
(2013) 249 CLR 645
(2006) 152 FCR 566
(1986) 159 CLR 656
(2006) 206 FLR 171
(1975) 132 CLR 611
(1996) 64 FCR 123
(2007) 232 CLR 189
(1947) 75 CLR 409
(1988) 180 CLR 491