Victorian Building Authority v Andriotis

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Keane JJ.,Nettle,Gordon JJ.,Edelman J.
• Judgment Date: 07 August 2019
• Neutral Citation: [2019] HCA 22
• Court: High Court
• Docket Number: M134/2018
• Date: 07 August 2019

[2019] HCA 22

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

M134/2018

Victorian Building Authority

Appellant

and

Nickolaos Andriotis

Respondent

Representation

K L Walker QC, Solicitor-General for the State of Victoria, and C M Harris QC with S Gory for the appellant (instructed by Victorian Government Solicitor)

K P Hanscombe QC with T J D Chalke for the respondent (instructed by Boris Pogoriller)

Acts Interpretation Act 1901 (Cth), ss 2, 13, 15AA, 33.

Building Act 1993 (Vic), ss 170, 179, 180.

Mutual Recognition Act 1992 (Cth), ss 3, 6, 16, 17, 19, 20, 21, 22, 23, 33, 36, 37.

CATCHWORDS

Victorian Building Authority v Andriotis

Statutes — Construction — Statutory powers — Mutual recognition — Where s 17(1) of Mutual Recognition Act 1992 (Cth) provides that person registered in one State for occupation entitled to be registered in equivalent occupation in second State where person lodges written notice with local registration authority of second State — Where s 20(1) of Mutual Recognition Act provides that registration in first State sufficient ground of entitlement to registration in second State — Where s 20(2) of Mutual Recognition Act provides that local registration authority of second State “may” grant registration on that ground — Where s 17(2) of Mutual Recognition Act provides that mutual recognition principle subject to exception that it does not affect operation of laws that regulate manner of carrying on occupation in second State, provided laws not based on attainment or possession of some qualification or experience relating to fitness to carry on occupation — Where respondent registered as waterproofer in first State — Where respondent refused registration in second State for non-compliance with “good character” requirement in local Act — Whether local registration authority has discretion to refuse registration — Whether “good character” requirement is law based on “qualification” relating to fitness to carry on occupation.

Words and phrases — “character requirement”, “disciplinary action”, “discretionary power”, “entitlement to registration”, “fitness to carry on an occupation”, “good character”, “local registration authority”, “may”, “mutual recognition principle”, “mutual recognition scheme”, “qualification or experience”, “registration for an occupation”, “residual discretion”, “sufficient ground of entitlement to registration”.

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

1 Kiefel CJ, Bell and Keane JJ. The factual background and statutory provisions relevant to this appeal are set out in the reasons of Nettle and Gordon JJ. It is not necessary to repeat them in full.

2 This appeal concerns the operation of the Mutual Recognition Act 1992 (Cth) (“the MRA”). The MRA was enacted pursuant to s 51(xxxvii) of the Commonwealth Constitution, which provides for 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 relevant referrals by the States and the requests by the legislatures of the Territories followed upon an intergovernmental agreement between the Commonwealth, the States and the Territories 1 concerning mutual recognition.

3 The principal purpose of the MRA is to promote the goal of freedom of movement of goods and service providers in a national market in Australia 2. That goal is sought to be achieved by providing for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupations, as the MRA's long title suggests. Part 2 of the MRA deals with goods produced in or imported into a State and their sale in another State 3. Part 3 is concerned 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 4.

4 The entitlement of a person registered in one State (“the first State”) to carry on an occupation in another State (“the second State”) is stated in the “mutual recognition principle” in s 17(1) of the MRA. It is to the effect that after the person notifies the local registration authority of the second State of his or her registration in the first State, the person is (a) entitled to be registered in the second State for the equivalent occupation; and (b) pending that registration, entitled to carry on the equivalent occupation in the second State.

5 Section 19 enables a person who is registered in the first State to lodge a written notice with the local registration authority in the second State seeking registration for the equivalent occupation 5. The notice is required to contain certain statements, including that the person is not the subject of disciplinary proceedings or preliminary investigations or action which might lead to such proceedings, that the person's registration in any State is not cancelled or suspended, and that the person is not otherwise prohibited from carrying on the occupation in any State, and a statement specifying any special conditions to which the person is subject in carrying on such occupation in any State 6.

6 Registration must be granted within one month after the notice is lodged and takes effect from the date of the notice 7. However, the local registration authority has power, within one month after the notice is lodged, to postpone or refuse the grant of registration 8. If a grant is postponed, the authority may later refuse registration 9. The circumstances in which a grant may be postponed or refused are set out in ss 22(1) and 23(1). The circumstances in which a grant of registration may be refused under s 23(1) are that: any of the statements or information in the notice as required by s 19 are materially false or misleading; any document or information required by s 19(3) has not been provided or is materially false or misleading; or the authority decides that the occupation in which registration is sought has no equivalent and equivalence cannot be achieved by the imposition of conditions.

7 Section 20(1) provides that a person who lodges a notice under s 19 is entitled to be registered in the equivalent occupation in the second State “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”. Section 20(2) then provides that the local registration authority “may grant registration on that ground and may grant renewals of such registration”.

8 The respondent, Mr Andriotis, notified the Victorian Building Practitioners Board (“the Board”), the then relevant local registration authority, that he was the holder of an “Endorsed Contract Licence – Waterproofing” which

had been issued in New South Wales. He sought registration as a waterproofer in Victoria

9 The mutual recognition principle in s 17(1) is expressed to be subject to Pt 3. If no other provision of Pt 3 created any impediment it would seem to follow from the principle and ss 20(1) and 20(2) that Mr Andriotis would have been entitled to be registered in Victoria as a waterproofer. There is no suggestion that he did not meet the requirements for notification in s 19 or that any of the bases for refusal of registration given by s 23 were present.

10 If Mr Andriotis had applied for registration as a “Domestic Builder Class W – Waterproofing” under the Building Act 1993 (Vic), rather than under the MRA, he would have been required by s 170(1)(c) of the Building Act to satisfy the Board that he was a person “of good character”. The Board refused to register Mr Andriotis under the MRA on that ground. The Administrative Appeals Tribunal affirmed that decision 10. The Board was subsequently abolished 11. Its decisions are taken to be those of the appellant, the Victorian Building Authority (“the VBA”) 12.

11 On Mr Andriotis' appeal to a Full Court of the Federal Court, the VBA argued that the MRA permits the approach adopted by its predecessor in ensuring that requirements of the Building Act were met by an applicant for registration under the MRA. It submitted that the VBA retains a discretion under s 20(2), not the least because the word “may” is used in relation to the grant of registration. The other argument advanced by the VBA relied on s 17(2) of the MRA.

12 Section 17(2) subjects the mutual recognition principle to an exception. The exception is “that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State”. The laws in question must satisfy two further conditions to come within the exception. They must apply equally to all persons “carrying on or seeking to carry on the occupation” under the law of the second State. They must not be based “on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation”. The VBA argued that the requirement of s 170(1)(c) of the Building Act, that a person be of good character, is not a “qualification” relating

to fitness to carry on an occupation so as to exclude it from the description of a law to which s 17(2) refers

13 The Full Court (Flick, Bromberg and Rangiah JJ) rejected both arguments on the hearing of Mr Andriotis' appeal. In their Honours' view, s 20(2) does not connote a general discretionary power, and is to be understood as permissive 13 or enabling 14. As to the second argument, their Honours held that there is no basis to read the word “qualification” in s 17(2) as excluding any consideration as to the integrity or moral characteristics of a person seeking registration 15.

14 The Full Court allowed the appeal, set aside the decision of the AAT and ordered that the matter be...