LEE J:
84 This is an "appeal" from a decision of the Administrative Appeals Tribunal ("the Tribunal"). Pursuant to s 44(3)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") and s 20(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed that the "appeal", a matter in the original jurisdiction of the Court, be heard by a Full Court.
85 The applicant ("the Board") "appeals" from a decision of the Tribunal made pursuant to the Mutual Recognition Act 1992 (Cth) ("MR Act") (adopted by the Mutual Recognition (Western Australia) Act 1995 (WA)) that under the Mines Safety and Inspection Act 1994 (WA) the respondent was "entitled to be granted a first class mine manager's certificate…subject to the condition that the certificate be restricted to coal mines of any kind, including underground coal mines and open cut coal mines…".
86 The relevant facts are set out in the respective reasons of French and Carr JJ and it is unnecessary to repeat them.
87 The questions of law on which the "appeal" was brought pursuant to s 44 of the AAT Act, and which defined the matter in respect of which jurisdiction was conferred on the Court (see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 per Gummow J at 178-182), were as follows:
"(a) whether the Tribunal erred in not making a finding on whether the respondent's appeal to the Tribunal was frivolous or vexatious or was an abuse of process.
(b) whether the Tribunal acted unreasonably or failed to take a relevant consideration into account in finding that the activities authorised to be carried out under the respondent's certificate of competency include acting as the manager of any coal mine in South Australia, whether it be an open-cut coal mine or an underground coal mine.
(c) whether the Tribunal misinterpreted or misapplied section 29 of the Mutual Recognition Act 1992, acted unreasonably or failed to take a relevant consideration into account in finding that in order to achieve equivalence between the occupations of first class mine manager in Western Australia and first class mine manager (restricted to coal mines) in South Australia, a condition should be imposed which entitled the respondent to manage underground coal mines in Western Australia.
(d) whether the Tribunal misinterpreted or misapplied section 31(1) of the Mutual Recognition Act 1992, acted unreasonably or failed to take a relevant circumstance into account in failing to find that it should specify a condition which limited the respondent's first class mine manager's certificate in Western Australia to entitle him to manage only open-cut coal mines.
(e) whether the Tribunal misinterpreted or misapplied section 31(2) of the Mutual Recognition Act 1992, acted unreasonably or failed to take a relevant consideration into account in failing to make a declaration that the occupation of coal mine manager in South Australia is not equivalent to the occupation of underground coal mine manager in Western Australia."
Before turning to the "questions of law" adumbrated by the Board, it is necessary to determine the proper construction of the relevant provisions of the MR Act contained in Pt 3 (ss 16-42) under the heading "Occupations".
88 The background to, and origin of, the MR Act providing the context in which the relevant provisions are to be construed has been set out in Sande v Registrar, Supreme Court of Queensland (1996) 134 ALR 560 per Lockhart J at 567 and in the reasons of French J. It is unnecessary to repeat those details.
89 Section 3 of the MR Act states that the purpose of the MR Act is to enact legislation "promoting the goal of freedom of movement of goods and service providers in a national market in Australia". The MR Act is Commonwealth legislation effecting the purpose of the Parliament to impose duties and obligations on registration authorities of the States and Territories that, under s 51(xxxvii) of the Constitution, have either referred to the Commonwealth the legislative power in exercise of which the MR Act has been enacted, or have adopted the MR Act so enacted.
90 The relevant definitions set out in s 4(1) of the MR Act are as follows:
"'local registration authority' of a State for an occupation means the person or authority in the State having the function conferred by legislation of registering persons in connection with their carrying on that occupation in the State;
'occupation' means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted;
'registration' includes the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation;"
91 Under s 19 of the MR Act a person who is registered for an occupation in one State may seek registration for the equivalent occupation in a second State "in accordance with the mutual recognition principle".
92 Section 17(1) states that the "mutual recognition principle" is that a person who is registered in one State for an occupation is, by the MR Act, entitled, after notifying the registration authority of the second State for the equivalent occupation, to be registered in the second State for that occupation, and pending such registration, to carry on the equivalent occupation in that State. Section 19 provides that the form of notification is written notice and prescribes the content of such a notice.
93 Under s 20(5) the registration authority with which the notice has been lodged, may impose conditions on registration if, inter alia, that is necessary to "achieve equivalence of occupations". General principles for determining the equivalence of occupations is set out in ss 29-32 of the MR Act. Section 29(1) provides that:
"An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions)."
94 Under s 31(2) the Tribunal, on a review, may make a declaration that occupations carried on in two States are not equivalent if it is satisfied in the terms required by s 31(2)(a) or s 31(2)(b). Sections 31(3)-(5) provide that such a declaration is to be published in the Gazette and is to be notified to counterpart authorities in other States, and the Commonwealth. Whether notwithstanding that no declaration has been made by the Tribunal, the matters set out in s 31(2)(b) are to be considered by a registration authority as a qualification on the terms of s 29 when that section is applied by the registration authority to provide the meaning of "equivalent occupation" as used in ss 19(1), 20(1), 22(1)(d) and 23(1)(c) of the MR Act is unnecessary to determine. It may be noted that s 29(3) provides that the section has effect subject to any relevant declarations in force under ss 31 and 32.
95 Section 32 provides that a Minister from each of two or more States may jointly declare that specified occupations are equivalent and may specify or describe conditions that will achieve equivalence.
96 It was not suggested that in respect of the occupation for which the respondent sought registration in Western Australia, the Tribunal had made a declaration of non-equivalence of occupations under s 31, or that Ministers had made a declaration of equivalence of occupations under s 32.
97 It was not in issue that the respondent had been granted a certificate in South Australia on 21 May 1993 authorising him to carry out the duties of a manager of coal mines in that State nor that for the purpose of the MR Act such certification constituted a registration of the respondent by a registration authority in respect of the carrying on of an occupation in that State.
98 Further, it was not in issue that on 17 December 1997, when the respondent completed and lodged with the Department of Minerals and Energy in Western Australia a form issued by the Department (erroneously described therein as notification to the Department of entitlement to registration under the "Mutual Recognition (Western Australia) Act 1995 Part 3, Division 2, Section 19"), the respondent had lodged a written notice with the Board under s 19 of the MR Act. In the terms of that notice, the occupation for which the respondent was registered in South Australia and in respect of which he sought registration in Western Australia, was "1st Class Mine Manager's Certificate of Competency for Coal Mines".
99 On 7 December 1994 the respondent had been registered in Western Australia, pursuant to the Mines Regulation Act 1946 (WA), as the holder of a "First Class Mine Manager's Certificate of Competency". Although the Mines Regulation Act was repealed on 9 December 1995 by the Mines Safety and Inspection Act, a certificate granted thereunder was continued by the transitional provisions of the repealing legislation. Whether that had relevance to registration sought in the notice lodged by the respondent was not an issue in the "appeal".
100 Section 20 of the MR Act states that a person who lodges a notice under s 19 is entitled to be registered in the equivalent occupation, and s 21(1) provides that registration must be granted within one month after that notice is lodged. Section 21(3) qualifies s 21(1) as discussed below. Section 25 provides that pending the grant or refusal of registration, a person who lodges a notice under s 19 is taken to be registered in the second State for that occupation and describes that circumstance as "deemed registration". Under s 26 a person's "deemed registration" under s 25 continues until it ceases in accordance with Pt 3 of the MR Act. Section 26(2) provides that "deemed registration" ceases if a person becomes "substantively registered" in connection with the occupation concerned. Section 27 provides that a person who has "deemed registration" may carry on the occupation as if the "deemed registration" were "substantive registration". Consonant with such provisions, s 23(2) states that a decision to refuse registration (ie "substantive registration") on the ground that the occupation in which registration is sought is not an equivalent occupation, does not take effect until a specified period after notice of that decision has been given, such period not being less than two weeks.
101 Section 21(3) provides that the registration authority may, subject to Pt 3 of the MR Act, postpone or refuse the grant of registration within the period of one month after the notice is lodged. Section 22(1) sets out the grounds on which the registration authority may postpone the grant of registration, one ground being that the authority decides that the occupation in which registration is sought is not an equivalent occupation (s 22(1)(d)). Section 23(1) states that the registration authority may refuse the grant of registration if, inter alia, it decides that the occupation in which registration is sought is not an equivalent occupation and that equivalence cannot be achieved by the imposition of conditions (s 23(1)(c)).
102 Section 21(4) provides that if the registration authority neither grants the registration nor "takes action" under s 21(3), namely, to postpone or refuse the grant of registration within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal, or postponement, may be effected, except where fraud is involved. It follows, therefore, that if a person becomes entitled to be registered immediately, as provided in s 21(4), no question of lack of equivalence in the occupation in which registration is sought can arise. The MR Act provides, in effect, a deemed equivalence in occupations in such circumstances. Whether room is left for the registration authority to impose conditions under s 20(5) "to achieve equivalence of occupations" remains to be considered.
103 The "mutual recognition principle" set out in s 17 of the MR Act is the expression of a statutory presumption that a person registered in one State for an occupation is entitled to be registered in a second State for the equivalent occupation and pursuant to that presumption a further entitlement to carry on the occupation in the second State arises from the act of lodging a notice under s 19 seeking registration in the second State for that occupation. The deemed entitlement to registration may be overtaken by the registration authority refusing to grant registration within one month of lodgment of the notice on the ground that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by imposing conditions.
104 Under s 39(1) of the MR Act it is the duty of a local registration authority to facilitate the operation of Pt 3 of the MR Act and, in particular, to make use of the power to impose conditions in such a way as to promote the "mutual recognition principle", that is, to promote the entitlement of a person registered in one State for an occupation to be registered in the second State for the equivalent occupation. The object of the MR Act is to facilitate interstate recognition of occupations; to provide a presumptive right to carry on occupations interstate; and to impose criteria and strict time limits to be observed by State registration authorities in determining whether a right to carry on an occupation in one State is to be recognised in another. In default of the exercise of rights and duties imposed or provided by the MR Act in respect of a registration authority, the MR Act directs that the registration authority is to grant registration to a person who has duly lodged a notice complying with the requirements of the MR Act.
105 The MR Act applies to circumstances circumscribed by the definitions set out in the MR Act which in turn establish the grounds on which the presumptions and deeming provisions of the MR Act are based. In summary the MR Act applies to an occupation which may be carried on only by persons who, by reason of their attainment of a particular qualification, are approved or licensed under legislation that has been enacted for the control of such an occupation and for the establishment of registration authorities in connection with the regulation of the carrying on of that occupation.
106 Thus the MR Act assumes that a system established pursuant to legislation enacted to regulate an occupation necessarily will define the occupation to which the regulatory system applies and provide a ready template for determining whether an occupation carried on in another State is equivalent to that occupation.
107 Furthermore, the MR Act assumes that a registration authority established by such legislation will be well aware of the limits of the occupation it regulates by act of approval, licensing, certification, or authorisation and will be able to determine promptly whether an occupation described in a notification given to it under s 19 of the MR Act is equivalent to the occupation it controls.
108 The determining provision of s 21(4) operates to serve the object set out in s 3 of the MR Act by removing delay in recognition as a possible impediment to the ready offer of services by providers thereof in a national market and to make plain to registration authorities the degree of importance the MR Act attaches to the object of the MR Act being met and to the duties of a registration authority set out in s 39 of the MR Act being performed.
109 The determination by s 21(4) of the MR Act that a person is entitled to be granted "substantive" registration when a registration authority fails to act within the time prescribed in s 21(3) is a means employed by the MR Act to promote its purpose by presuming that the relevant occupations are equivalent or that, if necessary, such equivalence may be achieved by the imposition of conditions.
110 In the matter under "appeal" the Board did not postpone or refuse the grant of registration within one month after the respondent lodged the notice with the Board under the MR Act. Pursuant to s 21(4) of the MR Act the respondent was entitled to be registered. The only decision to be made by the Board was whether any conditions were to be imposed on that registration. By letter dated 27 January 1998 the Board advised the respondent that the certification he had been granted in Western Australia on 7 December 1994 was sufficient to permit the respondent to carry on his occupation in respect of all mines then existing in the State including "surface coal mines". The Board advised that there was no underground coal mine in the State. In terms the letter advised the respondent that he had not been registered, notwithstanding his entitlement under the MR Act to be registered.
111 Implicit in the failure of the Board to register the respondent was a refusal to decide what conditions, if any, were to be imposed pursuant to s 20(5) of the MR Act on the grant of the "substantive" registration. Pursuant to s 34(2) of the MR Act and ss 3(3), 25(5) of the AAT Act, such a refusal to decide was a "decision" able to be reviewed by the Tribunal. Review of that decision required the Tribunal to decide, in lieu of the Board, whether conditions were to be imposed on the registration, inter alia, for the purpose of achieving equivalence between the occupation for which registration was sought in Western Australia and the occupation for which the respondent was registered in South Australia.
112 The Tribunal noted that the occupation in connection with which the Board was empowered by the Mines Safety and Inspection Act to provide certification was that of First Class Mine Manager. As noted earlier in these reasons, that appears to have been a certification already granted to the respondent under repealed legislation and continued by transitional provisions of the Mines Safety and Inspection Act. The Tribunal decided, however, that the occupation for which the respondent had been granted certification in South Australia, namely, "(Restricted) Mine Manager's Certificate of Competency, First Class…Restricted to Coal Mines" required a restriction to be imposed on the certification granted in Western Australia to achieve equivalence in the occupations. The effect of further certification of the respondent by the registration authority in South Australia on 1 September 1995 stating that the respondent was competent to carry on the occupation of First Class Mine Manager (Metalliferous) was not discussed.
113 It follows from the foregoing that I agree with French and Carr JJ that the arguments submitted on the first four of the "questions of law" recited must be rejected.
114 Furthermore, I am of the opinion that the arguments submitted by the Board on the final "question of law" must also be rejected. At the review hearing, the Board requested the Tribunal to make a declaration pursuant to s 31(2) of the MR Act that the occupations carried on in the two States to which the notice related were not equivalent. Apparently it was submitted to the Tribunal that the Tribunal could be satisfied in the terms required by ss 31(2)(b)(ii), (iii), that an activity the respondent was able to carry on in the occupation for which he was registered in South Australia, to wit, management of an underground coal mine, could not be carried on in Western Australia without exposing persons to a real risk to their safety. It may be noted in passing that material before the Tribunal recorded that the respondent had had nine years' experience in underground coal mines in New South Wales. The Tribunal rejected the submission of the Board and stated that having found that the respondent was entitled to be registered in Western Australia it was neither necessary nor appropriate for the Tribunal to make a declaration in the terms proposed by the Board.
115 By s 21(4) the MR Act had determined that the respondent was entitled to "substantive" registration, and that "no objection may be taken to the notice" he had lodged with the Board on the ground provided in s 23(1)(c), namely, that the occupation for which registration was sought was not an equivalent occupation. The "decision" of the Board before the Tribunal for review was not a decision made by the Board under s 21(3) of the MR Act to refuse registration upon the ground provided in s 23(1)(c), namely, that the occupation in which registration was sought was not an equivalent occupation. The decision under review was the refusal to decide whether conditions should be imposed on the substantive registration to which the respondent was entitled pursuant to the terms of s 21(4) of the MR Act. Review of that decision would not permit the Tribunal to exercise a power under s 21(3) of the MR Act not exercisable by the Board when it "made" the decision under review, (see AAT Act, s 43(1)), and decide whether the respondent was to be granted or refused registration.
116 For the reasons which follow it is unnecessary to determine whether s 31(2), which reposes a further function in the Tribunal concurrent with the function of conducting a review, authorised the Tribunal to make a declaration that the occupation for which registration had been granted to the respondent in South Australia and the occupation for which he was entitled to be registered in Western Australia pursuant to s 21(4) were not equivalent occupations. (cf s 30(3)) If the Tribunal was empowered to make such a declaration in this matter, the exercise of that power was in the discretion of the Tribunal and the Tribunal was not persuaded that a declaration should be made. The Tribunal having in mind, it would seem, the provisions of ss 31(3), (4) of the MR Act which stipulate that a declaration is to be published in the Gazette and distributed nationally, was not prepared to make a declaration when the Tribunal did not have before it the views of other persons or bodies whose interests were likely to be affected by such a declaration. That was a relevant consideration for the Tribunal to take into account in exercising its discretion. Any views the Tribunal proffered on the strength of evidence required to support the making of such a declaration were irrelevant, the Tribunal having determined on other grounds that it was inappropriate to exercise the power.
117 No error of law in the conduct of the review proceeding by the Tribunal has been demonstrated and I would dismiss the "appeal" with costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.