Background

Part 3 of the Mutual Recognition Act permits mutual recognition of certain occupations and registrations between States in Australia. It provides that a person who is registered for an occupation in one State is entitled to registration in the equivalent occupation in another State.[1] This must be notified to the local registration authority, which may refuse registration if it decides that the occupations are not ‘equivalent’, and equivalence cannot be achieved by the imposition of conditions.[2] This decision highlights a preference for an interpretation that is consistent with the purpose of the Mutual Recognition Act.[3]

Procedural History

This decision concerned an appeal by the Victorian Building Authority (VBA) about the proper approach to comparing registered occupations, in this case a building surveyor, under the Mutual Recognition Act. Mr Cau (Surveyor) was registered as a ‘Building Surveying Practitioner Level 1 (Individual)’ in Western Australia (Western Australian Building Surveyor) and applied to be registered in Victoria as a ‘Building Surveyor – Unlimited’ (Victorian Building Surveyor).

The VBA refused the Surveyor’s application on the basis that a Victorian Building Surveyor is responsible for issuing building permits and certificates, a task that a WA Building Surveyor generally does not undertake. The VBA therefore determined that a Victorian Building Surveyor and WA Building Surveyor were not ‘equivalent’ registrations, and equivalence could not be achieved by imposing conditions (VBA Decision). The Surveyor appealed the VBA Decision to the Administrative Appeals Tribunal (AAT). The AAT affirmed the VBA’s Decision (AAT Decision).

The Surveyor then appealed the AAT Decision to the Federal Court of Australia. The FCA held at first instance that the AAT Decision involved an error of law, and remitted the matter back to the AAT for determination. In other words, the Federal Court of Australia found that the surveyor’s position was to be preferred, and directed the AAT to find accordingly. The primary judge held that ‘activities’ for the purpose of the MRA refers to “professional activities that form part of the occupation”, and not “activities that may be authorised by reason of the fact of registration or in consequence of registration” (Primary Decision).[4] The VBA appealed the Primary Decision to the Full Court of the Federal Court of Australia (Court). That appeal is the subject of this case.

Key Issue

The Court was required to consider whether “the activities authorised to be carried out under each registration” were “substantially the same” in the context of a Western Australian Building Surveyor and Victorian Building Surveyor.[5]

Appeal Decision

The Court affirmed the Primary Decision and dismissed the VBA’s appeal. In doing so, the Court held that:

1. there is a distinction between activities or functions that are permitted to be carried out under the registration for an occupation and the activities or functions authorised to be carried out as a consequence of registration;[6]
2. registration is based on the qualifications and experience necessary to undertake the occupation (which was similar in both States) and not on the consequential statutory functions that might be exercised after registration (e.g. issuing a certificate or permit);[7]
3. both a Victorian and WA Building Surveyor perform functions that involve verifying that the plans and specifications the subject of a building permit conform to the applicable building standards;[8]
4. the system for registration of building surveyors in both States is underpinned by “compliance with the National Construction Code and other standards concerning safety, accessibility and efficiency in building design and construction”;[9] and
5. the statutory functions of an occupation registered under legislation may assist in identifying the relevant activities associated with the occupation, for the purpose of determining equivalence or conditions that may be imposed to achieve equivalence.[10]

The Court expressed that its decision was consistent with the purpose of the MRA, namely “promoting the goal of freedom of movement of goods and service providers in a national market in Australia”.[11]

Consequential Amendments to Legislation

On 24 June 2021, following the VBA Decision, the Mutual Recognition Act was amended to add section 3A, which clarified that the Mutual Recognition Act provides “for individuals who are registered for an occupation in one State to be registered for and carry on the activities of, an equivalent occupation in a second State” [emphasis added].[12] The Mutual Recognition Act was also amended to include a definition of “activity” to mean “an activity authorised to be carried on under an occupation that requires registration”.[13] The Court referred to this legislative amendment and emphasised the words “carry on the activities of, an equivalent occupation” [original emphasis] in reaching its decision.[14]

Conclusion

This decision highlights the need to have regard to the purpose of the Mutual Recognition Act when determining equivalence of registered occupations. In the context of a building surveyor, this involves consideration of the activities undertaken in the occupation rather than the consequential statutory authority that might be conferred by registration.

Further information / assistance regarding the issues raised in this article is available from the authors, Bill Papastergiadis, Managing Partner Melbourne, Nathan Cutts, Partner, Phillip Vassiliadis, Partner, or your usual contact at Moray & Agnew.