Victorian Building Authority v Cau

1. The appeal be dismissed.
2. The appellant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 Part 3 of the Mutual Recognition Act 1992 (Cth) provides a mechanism by which a person who is registered for an occupation in one State is entitled to registration in the equivalent occupation in another State after notifying the local registration authority of the other State. The local registration authority may refuse registration in the other State if 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. This appeal concerns the approach to be taken by a local registration authority and the Administrative Appeals Tribunal on review to the determination of equivalence. 2 The respondent, Massimo Cau, is registered in Western Australia for the occupation "Building Surveying Practitioner Level 1 (Individual)" and as a "Building Surveying Contractor Level 1 (Company)". Mr Cau is required to be registered for that occupation under the provisions of the Building Services (Registration) Act 2011 (WA) and Building Services (Registration) Regulations 2011 (WA). A person cannot carry on work as a building surveyor in Victoria if required to be registered for that occupation under the provisions of the Building Act 1993 (Vic) and Building Regulations 2018 (Vic). Mr Cau applied to the Victorian Building Authority to be registered for the occupation "Building Surveyor - Unlimited" (a class of building practitioner under the Building Act (Vic) and Building Regulations (Vic)) in accordance with the Mutual Recognition Act. The Authority refused Mr Cau's application on the grounds that his Western Australian registrations were not equivalent to registrations he sought in Victoria and equivalence could not be achieved by the imposition of conditions. 3 Mr Cau applied to the Tribunal for review of the Authority's decision. The Tribunal affirmed the Authority's decision. Mr Cau appealed to this Court from the Tribunal's decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal reached the view that the occupations were not equivalent because registration under the Building Act (Vic) authorises a building surveyor to issue certain permits and directions, whereas registration under the Registration Act (WA) does not authorise a building surveyor to issue the same kinds of permits and directions, as in Western Australia those functions are performed by a separate permit authority or not at all. Whether it was correct to assess equivalence on the basis of such statutory functions and powers is the issue in this appeal. 4 The primary judge concluded that the Tribunal's approach was not correct and made orders allowing the appeal, setting aside the Tribunal's decision and remitting the matter to the Tribunal for determination according to law and the primary judge's reasons: Cau v Victorian Building Authority [2022] FCA 45 (J). 5 Section 28 of the Mutual Recognition Act provides that the equivalence of occupations carried on in different States is to be determined in accordance with Pt 3. Relevantly, s 29(1) of the Act provides: An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions). 6 The primary judge found (all emphasis in original) that words used in the phrase "'activities authorised to be carried out under each registration' … direct attention to the activities that comprise the nature and extent of the occupation being registered" (at J [11]). He explained that the "activities" to which reference is made in that phrase are not "activities that may be authorised by reason of the fact of registration or in consequence of registration" but "activities that can be carried out under the registration of the occupation. His Honour held that "the activities being carried out under the registration are those professional activities that form part of the occupation" (at J [12]). The distinction his Honour drew, then, was between s 29(1) as requiring equivalence in specified functions which are authorised to be performed by registered persons, for example the statutory function of issuing building permits, and s 29(1) as requiring equivalence in the broader occupational activities that a person may undertake if registered. 7 His Honour concluded that on the proper construction of the section, it was the latter equivalence that was required. His Honour expressed that conclusion at J [73]: For reasons that have been given, the phrase "activities to be carried out under each registration" refers to those activities which comprise the occupational activities for which persons may be registered. In the context of the terms of the Mutual Recognition Act and its stated purpose, s 29 is concerned with expressing the circumstances in which registration for an occupation in one State will be a sufficient basis to secure registration for the occupation in another State. The requirement is that the activities authorised under the occupational registration are substantially the same in each case. The focus is upon the activities that are covered under the registration not upon the statutory authority that registration consequentially confers to then sign certificates, issue permits or serve notices requiring compliance. 8 The primary judge summarised the Tribunal's approach to the application of s 29(1) of the Mutual Recognition Act at J [69]-[71]. His Honour observed that the Tribunal compared "functions in the relevant legislation that are authorised by the relevant registrations" (at J [69]). His Honour observed that "no part of the Tribunal's reasons involved a consideration of the activities that formed part of the occupation of a building surveyor or the nature and extent of those occupational activities which a registered building surveyor could undertake" (at J [70]). Rather, the Tribunal considered the "activities to be carried out under each registration" referred to the statutory authorities that could be exercised by a registered building surveyor under building legislation in each of the two States (at J [71]). In other words, "[i]t treated those words as referring to the authority conferred upon registered building surveyors by the scheme that regulated building activities rather than upon the activities of the occupation for which those persons were registered" (at J [71]). Consequently, the Tribunal failed to consider whether there was equivalence as to the "activities that were covered by the registration as a building surveyor" (at J [75]). 9 The primary judge concluded that the Tribunal's approach to the application of s 29(1) of the Act involved an error of law. He characterised that error (at J [84]) in the following manner. The Tribunal's error was to misconceive the nature of its task under the legislation. In consequence, it inquired into the wrong factual matters. Instead of focussing on the activities that formed the extent of the occupation that was the subject of the registration as a building surveyor in each of the two States (being the activities conducted under the registration) it considered the consequential statutory authority that might be exercised by a person so registered (being activities that could be conducted under the building legislation by reason of the registration). In so doing, it committed a legal error. 10 The Authority contends that the primary judge erroneously held that "the activities authorised to be carried out under" a registration within the meaning of s 29(1) of the Mutual Recognition Act are not to be identified by reference to the activities that a person who holds that registration is authorised to carry out under legislation in force in the State or Territory in which the registration is held. Thus, the Authority contends, the primary judge also erroneously held that the Tribunal erred in law or failed to carry out its statutory task by comparing the activities a registered building surveyor is authorised to carry out under legislation in Western Australia and Victoria and determining, on the basis of that comparison, whether or not the occupation of building surveyor in Western Australia is equivalent to that occupation in Victoria. 11 As there is no dispute that the Tribunal approached the application of s 29(1) in the manner the primary judge described in his reasons for decision, the outcome of this appeal turns on whether, as a matter of statutory interpretation, the Tribunal correctly approached its statutory function of reviewing the Authority's decision that the occupation "Building Surveyor - Unlimited" in Victoria "is not an equivalent occupation" to "Building Surveying Practitioner Level 1 (Individual)" in Western Australia. The particular question raised by the appeal is whether the primary judge erred in concluding that the Tribunal misconceived the nature of the factual enquiry that s 29(1) of the Mutual Recognition Act mandates for the purpose of evaluating whether "activities authorised to be carried out under each registration are substantially the same". For the reasons that follow his Honour did not err in reaching that conclusion.