NETTLE AND GORDON JJ. The respondent, Mr Andriotis, was registered in New South Wales as a waterproofer. He said in his application to the New South Wales local registration authority that he had certain work experience. That was not true. Mr Andriotis then sought registration in Victoria, pursuant to the Mutual Recognition Act 1992 (Cth), as a building practitioner under the Building Act 1993 (Vic), the Victorian scheme regulating registration. The Mutual Recognition Act provides for recognition within each State and Territory of regulatory standards adopted elsewhere in Australia regarding goods and occupations and, thus, for recognition of registration for an occupation in one State by other States. The Victorian Building Practitioners Board refused Mr Andriotis' application because his New South Wales application demonstrated dishonesty and he was therefore not of "good character", as required by the Building Act.
The issue in this appeal was whether the Mutual Recognition Act permitted the Victorian Building Practitioners Board to consider whether Mr Andriotis was of "good character" within the meaning of the Building Act when considering his application for registration in Victoria. These reasons will show that it was not open to the Board to determine whether Mr Andriotis was of good character as required by the Building Act. Mr Andriotis was entitled to registration in Victoria because, having lodged a written notice with that Board under the Mutual Recognition Act, the fact of his registration in New South Wales was itself a sufficient ground of entitlement to registration for the equivalent occupation in Victoria. Whether Mr Andriotis attained or possessed the necessary qualifications or experience relating to fitness to carry on an occupation was to be determined solely by New South Wales. To explain that conclusion it is necessary to consider the statute in some detail. It is convenient first, however, to summarise the procedural history.
Procedural history
In March 2015, Mr Andriotis was issued with an "Endorsed Contract Licence - Waterproofing" by the New South Wales Fair Trading - Home Building Service.
On 3 June 2015, Mr Andriotis lodged an application with the Board seeking registration in Victoria as a "Domestic Builder Class W - Waterproofing". That application for registration was made under the Mutual Recognition Act.
On 28 October 2015, the Registrar of the Board wrote to Mr Andriotis seeking further information. The Registrar noted that Mr Andriotis had stated in his New South Wales application that he had worked as a waterproofer from February 2012 to March 2015 for Oxford Builders Pty Ltd but the Registrar was unable to verify his work with that company. The Registrar also requested three written references from professional referees in order for the Board to be satisfied Mr Andriotis was of good character.
On 11 November 2015, Mr Andriotis provided the requested information. Mr Andriotis stated that in addition to work with Oxford Builders Pty Ltd, he had worked for Delray Constructions. Mr Andriotis provided references from a director of Oxford Builders Pty Ltd and from Delray Constructions. On 30 November 2015, the Board refused Mr Andriotis' registration on the ground that he failed to satisfy the Board that he was of good character as required by s 170(1)(c) of the Building Act.
Mr Andriotis applied to the Administrative Appeals Tribunal for review of the Board's decision. On review, the Tribunal affirmed the Board's decision and concluded that Mr Andriotis was not of good character as required by s 170(1)(c) of the Building Act. The Tribunal found that "the evidence supporting Mr Andriotis' application for registration under the Mutual Recognition Act was materially defective and misleading" and that he "had not dealt forthrightly, honestly and with candour with registration and regulatory authorities".
Mr Andriotis appealed to the Federal Court of Australia. The Full Court of the Federal Court determined that the Tribunal erred in concluding that it was entitled to take into account and apply the good character requirement in s 170(1)(c) of the Building Act and, on that basis, set aside the decision of the Tribunal and remitted the matter to the Tribunal to be heard and decided again according to law.
The Mutual Recognition Act
The principal purpose of the Mutual Recognition Act is to promote the "goal of freedom of movement of goods and service providers in a national market in Australia". The scheme is not unique.
In a State or Territory, there are two paths to registering for an occupation: either a person can apply under the prevailing State regulatory scheme (here, the Building Act), or, if they are registered for an equivalent occupation in another State, they can apply for recognition of that registration under the Mutual Recognition Act. These are therefore two parallel means of achieving the same end. The Mutual Recognition Act does not limit the operation of a law of a State so far as it can operate concurrently with that Act. The Mutual Recognition Act leaves room for State laws to continue to operate with respect to registration of occupations.
Section 20 in Pt 3 of the Mutual Recognition Act, headed "Entitlement to registration and continued registration", provides:
"(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." (emphasis added)
Section 20(1) expressly provides that the fact of registration in the first State is itself a sufficient ground of entitlement to registration, subject to the requirements in s 19. Section 20(2) provides that the local registration authority of the second State may grant registration on that ground. But the use of the word "may" in this context should not mislead.
Under s 21 of the Mutual Recognition Act, a local registration authority has only three options: to grant, postpone or refuse the registration. If it does not postpone or refuse, it "must" grant the registration within one month. The three options before the local registration authority are shaped by the entitlement to registration in s 20(1), subject to the requirements in s 19. In other words, if the statutory conditions are met, the local registration authority of the second State must grant the registration.
The question then is whether the second State can refuse registration under s 20(2) of the Mutual Recognition Act on the basis that the applicant is not of good character within the meaning of the local regulatory scheme. The answer is no.
Section 20 must be read subject to Pt 3.
The "mutual recognition principle", as applying to occupations, is set out in Pt 3. Section 17(1) in Div 1 of Pt 3 defines the mutual recognition principle as follows:
"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." (emphasis added)
A person registered for an occupation in the first State is entitled, after notifying the local registration authority of the second State, to be registered in the second State for an equivalent occupation. The entitlement to registration in the second State arises "after notifying" the second State authority. It does not require "applying to" that authority, only "notifying" it.
That view is reinforced by Div 2 of Pt 3, headed "Entitlement to registration", which provides for the practical application of the mutual recognition principle in Div 1. Section 19(1) provides that 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" (emphasis added).
The entitlement to registration is "subject to [Pt 3]". That is, the entitlement to registration does not arise unless the applicant is registered for an "occupation" in another State; the entitlement to registration only applies to "equivalent" occupations, being those where the authorised activities are "substantially the same"; and the entitlement to registration does not arise unless the applicant lodges a notice under s 19.
The notice must, relevantly, contain prescribed information, enclose documents or information evidencing the existing registration, and be verified by a statutory declaration. Relevantly, under s 19(2) the notice must:
"(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
...
(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."
If the applicant cannot truthfully make the statements required by s 19(2) or provide a true instrument or sufficient information evidencing their registration in the first State, they will be unable to lodge the s 19 notice in the form required, and no entitlement to registration in the second State will arise.
Consistent with the primacy of registration in the first State being a sufficient ground of entitlement to registration in the second State, registration must be granted by the local registration authority in the second State within one month after lodgement of the s 19 notice. However, that requirement is subject to Pt 3, and the fact that within one month of lodgement, the authority may postpone or refuse the grant of registration. If the authority takes no action within that time, the person is immediately entitled to registration 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".
The mutual recognition principle in s 17 expressly provides that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, subject to two exceptions in s 17(2) which are in the following terms:
"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." (emphasis added)
This appeal is concerned with the exception in s 17(2)(b) − while s 17(2) provides that the mutual recognition principle does not affect laws of the second State that regulate the manner of carrying on an occupation, this only applies to laws that are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation. Section 17(2)(b) means, at least, that the second State cannot impose higher qualifications for registration than the first State. The question is whether the exception provided by s 17(2)(b) means that the second State cannot consider whether the applicant is of good character either because the applicant misstated what qualifications the applicant had when seeking registration in the first State, or for some other reason. Or, put in different terms, is a law requiring a person to be of good character a law about the attainment or possession of some qualification or experience relating to fitness to carry on the occupation?
The answer is found in the mutual recognition principle, reflected in Pt 3 of the Mutual Recognition Act read as a whole. The fact of registration in the first State is a sufficient ground of registration in the second State in respect of all aspects of qualification and experience, including any character requirements, relating to fitness to carry on an occupation. Thus, it is not open to the second State to go behind registration in the first State and seek to challenge or review any aspect of the applicant's qualifications and experience, including any character requirements, relating to their fitness to carry on the occupation in the first State. As was stated during the Second Reading Speech in the House of Representatives in relation to the Mutual Recognition Bill 1992, "[i]f someone is assessed to be good enough to practise a profession or occupation in one State or Territory, then they should be able to do so anywhere in Australia".
There are several other elements of the statutory context that support that construction.
Part 3 deals with the ability of a person who is registered in connection with an occupation in a State (the first State) to carry on an equivalent occupation in another State (the second State). "Occupation" is relevantly defined to mean "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)". As is apparent, when defining what is an "occupation" under the Mutual Recognition Act, a qualification includes character and being a fit or proper person. As the Minister said during the Second Reading Speech, "[l]ocal registration authorities will be required to accept the judgment of their interstate counterparts of a person's educational qualifications, experience, character or fitness to practise".
Next, postponement of registration is addressed in s 22. It provides that a local registration authority may postpone the grant of registration for no longer than a period of six months 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."
That power to postpone the grant of registration for up to six months is important. It permits the local registration authority in the second State to make inquiries. Indeed, by lodging a notice under s 19, an applicant gives consent to that local registration authority "making ... inquiries of, and [exchanging] 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".
Moreover, the power of postponement under s 22 is not only of assistance to the second State. It also provides the first State with time to take any necessary disciplinary action under the laws of the first State. Those actions could, for example, include suspending or revoking the applicant's registration in that State, thereby removing the basis of the applicant's entitlement to registration in the second State under the Mutual Recognition Act. That is, the Mutual Recognition Act presumes that each relevant State registration authority will, consistent with the applicable local statute, take action to ensure that those registered in that State comply with the basis upon which they were registered in that State; and investigate, if required, whether they should remain registered.
Refusal of registration by the second State is addressed in s 23. That section provides that 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."
None of those grounds is engaged in the present appeal. But expressly providing that the local registration authority in the second State may refuse registration if the applicant makes false statements to that authority tends to suggest that the local registration authority is not to be concerned with examining whether registration in the first State was obtained by false statements. Indeed, the three grounds for refusal reflect the requirements in s 19 of the Mutual Recognition Act. Section 23(1) gives the local registration authority power to refuse registration where the s 19 requirements have not been met. Section 23(1) is exhaustive.
Moreover, pending the grant or refusal of registration, a person who lodges a notice under s 19 is "taken to be registered as provided in section 20". Subject to certain limitations, a person who has such "deemed registration" may carry on the occupation in the second State as if the deemed registration were "substantive registration" in the second State. Those limitations include a requirement that to carry on the occupation under deemed registration, the person must comply with requirements regarding insurance, fidelity funds, trust accounts and the like that are designed to protect the public, clients, customers or others. Once the authority in the second State is satisfied that the person is indeed registered in the first State for an equivalent occupation, it must grant the registration and the interim arrangements under Div 3 of Pt 3 of the Mutual Recognition Act cease to apply. In this way, both the grounds for refusal and the intervening deemed registration reflect the primacy of the registration in the first State as the ground for registration in the second State.
Continuance of registration is addressed in s 20(4). It provides that:
"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." (emphasis added)
Continuation of registration is subject to the laws of the second State but subject to the same exceptions to the mutual recognition principle in s 17(2). The exceptions are in the same terms. A strong reason would be needed to read the two provisions differently and no reason, let alone a strong reason, has been identified. Thus, on its face, s 20(4)(b), like s 17(2)(b), reflects the primacy of the laws of the first State in relation to the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
That analysis of the statutory scheme provides a complete answer to the submission of the Victorian Building Authority ("the VBA") that because it, or its predecessor, "may" grant registration under s 20(2) of the Mutual Recognition Act, the Board had a discretionary power to refuse registration based on Mr Andriotis not being of good character. As has been observed, there is no such discretion.
Three further provisions of the Mutual Recognition Act were relied upon by the VBA as support for its contention that the local registration authority in the second State may refuse registration on the basis of factors outside the s 19 requirements. First, the VBA contended that s 19(2)(h) demonstrated that the inquiries of the local registration authority are not limited to the matters the subject of the s 19 notice and, by extension, permitted the VBA to refuse registration on the basis of other matters. That contention should be rejected. The consent, and the scope of the activities permitted to be investigated by the local registration authority, are identified by the concluding words in s 19(2)(h), namely "regarding the person's activities in the relevant occupation or occupations or otherwise regarding matters relevant to the notice" (emphasis added). These words limit the scope of the matters to be investigated by the local registration authority.
Next, the VBA contended that the reference to fraud in s 21(4) meant that the power to refuse registration on the basis of fraud must be found elsewhere than in s 23(1). That contention proceeds on an incorrect premise. A notice lodged under s 19 that has been procured by fraud is not a "notice under section 19" within the meaning of s 20(1). Thus, an applicant who lodges a notice procured by fraud does not cross the s 19 threshold.
Finally, it is necessary to refer to s 36, which provides that "[r]esidence or domicile in a particular State is not to be a prerequisite for or a factor in entitlement to the grant ... of registration arising under this Part". The VBA contended that s 36 is a qualification on the entitlement to registration that is outside the scope of s 19. Section 36 is not an additional qualification. It simply confirms that the requirement for the applicant to be "registered in the first State" under s 19(1) does not mean that the applicant must be resident or domiciled in that State. As explained, s 23(1) provides an exhaustive statement of the grounds for refusal of registration.
For these reasons, the local registration authority in the second State is not permitted to go behind the person's registration in the first State. Section 170 of the Building Act has no application to those seeking registration under the Mutual Recognition Act and only applies to those seeking registration under the parallel local scheme. No inconsistency between s 170 of the Building Act and the Mutual Recognition Act arises.
At first blush, it may seem odd that the laws of the first State in relation to the attainment or possession of some qualification or experience relating to fitness to carry on the occupation are given primacy over the laws of the second State. Putting the same point as a question − does reading the Mutual Recognition Act in a way that obliges the second State to register an applicant who is registered in the first State distort the operation of the Act? In particular, does it mean that giving that operation or meaning to ss 17(2)(b) and 20(4)(b) leads to some unintended or absurd result in regulating the continuing conduct of persons registered under the Mutual Recognition Act? The answer is no.
To show why reading the Mutual Recognition Act as requiring registration of Mr Andriotis in Victoria does not lead to an unintended or absurd result, even though he had misstated his experience when seeking registration in New South Wales, it is necessary to say something briefly about the disciplinary provisions under the relevant Victorian legislation − the Building Act. Those provisions would apply if, after registration, Mr Andriotis engaged in conduct contrary to the standards established by that Act. More particularly, s 20(4)(b) of the Mutual Recognition Act would not preclude the engagement of the disciplinary provisions in relation to Mr Andriotis' conduct or events occurring after he was registered in Victoria.
Indeed, in Div 5 of Pt 3 of the Mutual Recognition Act, which deals in part with disciplinary action, s 33(1) provides that if a person's registration in an occupation in "a State" is cancelled, suspended or subject to a condition "on disciplinary grounds, or as a result of or in anticipation of criminal, civil or disciplinary proceedings, then the person's registration in the equivalent occupation in another State is affected in the same way". Further, s 37(2)(c) requires the first State authority to furnish relevant information to the second State authority if the information is required by the second State in connection with "actual or possible disciplinary action" against the registrant. The construction of the Mutual Recognition Act adopted here would not distort the operation of those provisions or bring about absurd outcomes.
Thus, where registration in one State is obtained on the basis that the relevant person has attained or possessed some qualification or experience relating to fitness to carry on the occupation under the laws of that State, it is not open to the second State to go behind that registration. If a person seeks registration in a second State under the Mutual Recognition Act then, prior to registration as well as after registration in the second State under the Mutual Recognition Act, it is for the first State to address the applicant's attainment or possession of some qualification or experience relating to fitness to carry on the occupation under the laws of the first State. The exact ambit of what constitutes the "attainment or possession of some qualification or experience relating to fitness to carry on the occupation" in ss 17(2)(b) and 20(4)(b) may require further consideration in later cases.
So long as the person remains registered in the first State, their registration, and the continuation of their registration, in the second State is governed by the mutual recognition scheme. However, the application of ss 17(2)(b) and 20(4)(b) to the laws of the second State that apply to a person registered under the Mutual Recognition Act does not mean that the local regulatory authority in the second State cannot, and should not, prosecute a person for contravening laws of the second State that do not fall within the ambit of laws based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
The Building Act in Victoria in its application to Mr Andriotis is illustrative.
The Building Act
The Building Act regulates building practitioners in Victoria. The local registration authority at the relevant time was the Building Practitioners Board (now the VBA). Part 11 concerned registration. Section 170, headed "Registration", provided:
"(1) The Building Practitioners Board must register an applicant in each category or class applied for if it is satisfied that the applicant −
(a) has complied with section 169; and
(b) either −
(i) holds an appropriate prescribed qualification; or
(ii) holds a qualification that the Board considers is, either alone or together with any further certificate, authority, experience or examination equivalent to a prescribed qualification; and
(c) is of good character; and
(d) has complied with any other condition prescribed for registration in that category or class.
(2) The Building Practitioners Board may refuse to register an applicant if the requirements of subsection (1) are not met.
(5) In this section qualification means any degree, diploma, certificate, accreditation, authority, training, experience or examination (whether obtained inside or outside Victoria)." (first emphasis added)
As explained earlier, it was not open to the Board or the Tribunal to have regard to s 170(1)(c) in addressing Mr Andriotis' entitlement to registration or his continued registration in Victoria.
But that did not preclude the possible operation of s 179 of the Building Act, which, at the time of the Board's decision, permitted it to take disciplinary action, such as by cancelling, suspending or imposing conditions on registration, if the Board was to find, for example, that Mr Andriotis was "guilty of unprofessional conduct" by reason of his conduct after registration.
In its current form, s 179 of the Building Act provides that disciplinary action can be taken if, among other things, "the practitioner has engaged in unprofessional conduct or has failed to comply with a code of conduct" or where "the practitioner has engaged in conduct in relation to the practitioner's practice as a building practitioner that is − (i) constituted by a pattern of incompetence; or (ii) negligent in a particular matter". In addition, under Subdiv 3 of Div 3 of Pt 11 of the Building Act, after registration, grounds for immediate suspension of the registration of a registered building practitioner include insolvency, where the practitioner has been convicted of an indictable offence involving fraud, dishonesty, drug trafficking or violence, where the practitioner has ceased to be covered by the required insurance and where the practitioner has failed to comply with a condition of the practitioner's registration.
These provisions are capable of operating, and are intended to operate, concurrently with the Mutual Recognition Act.
Previous authorities
Contrary to the VBA's submissions, the construction of the Mutual Recognition Act it contended for is not supported by earlier authorities which had considered aspects of the Mutual Recognition Act in its application to legal practitioners.
In Re Petroulias, the applicant applied for registration as a solicitor in Queensland under the Mutual Recognition Act. Mr Petroulias was unable to make the declarations required by s 19(2) of the Mutual Recognition Act truthfully with the result that his s 19 "notice was consequently not apt to crystallise the entitlement to registration in Queensland", the second State, provided by s 20 of the Mutual Recognition Act. The Queensland Court of Appeal held that Mr Petroulias' registration in Queensland, based on his registration in another State as a sufficient ground of entitlement to registration in Queensland, should be set aside. Mr Petroulias did not cross the s 19 threshold.
Re Tkacz; Ex parte Tkacz concerned a legal practitioner who, having fully disclosed a criminal conviction, was admitted to practice in New South Wales. Mr Tkacz applied to be admitted in Western Australia. The question for the Full Court of the Supreme Court of Western Australia was whether the Mutual Recognition Act, whether by express words or necessary implication, removed or curtailed the residual power of the Supreme Court in its inherent jurisdiction to refuse to admit an applicant who has otherwise satisfied the admission requirements. The Full Court held that the Mutual Recognition Act did not displace the Court's inherent power to regulate admission to practice in that State. For present purposes, it is unnecessary to determine whether that is so. Here, the VBA has no similar inherent jurisdiction which might operate independently of the Mutual Recognition Act.
In Scott v Law Society of Tasmania, which involved relevantly similar facts to Re Petroulias, the applicant failed to disclose in her notice under s 19 of the Mutual Recognition Act that she had been the subject of a complaint in the Northern Territory in which the council of the Law Society of the Northern Territory had made a finding of unprofessional conduct, and resolved that the applicant be admonished under the Legal Practitioners Act (NT). Crawford CJ (with whom Slicer and Evans JJ agreed) correctly stated that "because the Mutual Recognition Act, s 20(1), establishes entitlement to admission under the Act as if the law of the second State expressly provides that admission in the first State is sufficient ground of entitlement to admission, provided that the applicant is a person who has lodged a notice seeking admission under s 19 ... [o]n its face, s 20(1) leaves little room for a discretion based on the applicant's character or prior conduct". The question of what significance should be attributed to his Honour's subsequent statement that there is, however, authority for the proposition that there is a remaining discretion by reference to Re Petroulias and Re Tkacz is something which, for present purposes, need not be decided.
Conclusion and orders
For those reasons, the appeal should be dismissed with costs.