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- Unreported Judgment
Longhurst v Queensland Building and Construction Commission  QCAT 215
Queensland Building and Construction Commission
General administrative review matters
On the papers
16 June 2017
ADMINISTRATIVE LAW – GROUNDS OF REVIEW – JURISIDICTIONAL MATTERS – APPLICATION TO STRIKE OUT UNDER S 47 OF QCAT ACT – where application for mutual recognition of builder’s licence made under the Mutual Recognition Act 1992 (Cth) – where decision made that applicant was a permanently excluded individual and that the mutual recognition principle did not apply – where refusal to grant licence – whether decision made or taken to have been made under the Mutual Recognition Act 1992 (Cth) – whether decision was reviewable in QCAT or the AAT.
Administrative Appeals Tribunal Act 1975 (Cth) Mutual Recognition Act 1992 (Cth), s 16, s 17, s 19, s 20, s 21, s 23, s 34
Queensland Building and Construction Commission Act 1991 (Qld), s 56AC, s 58
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 47
D’Arro v Queensland Building and Construction Commission  QCA 90
Re Petroulias  QCA 261
Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123; (1996) 40 ALD 1
Shaboodien and Dental Board of Western Australia  WASAT 102
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
Becker Watt Lawyers
Robinson Locke Litigation Lawyers
REASONS FOR DECISION
- This is an application brought by the Queensland Building and Construction Commission (QBCC) to strike out an application for review of a decision on the basis this Tribunal lacks jurisdiction. Mr Longhurst applied to the QBCC for a licence on the basis that because he was already registered in Western Australia, he was entitled to be registered here, in Queensland. This argument is based on the application of the mutual recognition principle which applies to the registration of builders interstate by virtue of the application of the Mutual Recognition Act 1992 (Cth).
- The QBCC is responsible for the licensing of builders in Queensland. If the QBCC makes a decision to refuse a license based on the application of provisions of the Queensland Building and Construction Commission Act 1991 (Qld), that decision is reviewable in the Queensland Civil and Administrative Authority (QCAT). The issue that arises here is whether a decision to refuse an application for registration in Queensland based on the Mutual Recognition Act (Cth) is reviewable in QCAT.
- The applicant made an application for a licence to the Queensland Building and Construction Commission (QBCC) on a document headed “Licence Application Form – MUTUAL RECOGNITION” on 10 August 2016. Following that application, a Mutual Recognition Form 6 setting out details of the applicant’s licence in Western Australia was forwarded to the QBCC. The QBCC refused the application on 18 August 2016. The decision was confirmed on internal review on 2 December 2016.
- On 3 January 2017 the applicant applied for review of the decision by the QBCC on 2 December 2016 to refuse to grant him a licence. He claims that, despite being permanently excluded in Queensland, he should be licensed on the basis that he already has a licence in Western Australia. This argument is based upon the application of the Mutual Recognition Act 1992 (Cth) (MRA).
- In considering the issue of jurisdiction it is necessary to begin with the origin of the MRA and its construction.
The nature of the mutual recognition legislative scheme
- The MRA forms part of a legislative scheme which involved every state and territory and the Commonwealth enacting complementary legislation designed to deal with the different regulatory standards of states and territories relating to goods and services.
- The MRA was designed to remove unnecessary obstacles to interstate trade and the performance of services across states and territories. The Act had its genesis in meetings held over a number of years between the relevant heads of government with a view to achieving better relations between governments and in turn to benefit the national economy. The scheme was completed on 11 May 1992 when an agreement was signed by the heads of government endorsing what, in effect, became the MRA as enacted. Under the agreement, the states and territories were to pass certain necessary legislation by 31 October 1992 and the Commonwealth by 1 January 1993.
- The scheme was implemented using s 51(xxxvii) of the Commonwealth Constitution which empowers the Commonwealth to make laws with respect to:
(xxxvii) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:
- In the case of the MRA, the states and territories agreed to request and empower the Commonwealth to pass a single Commonwealth Act which, once enacted by the Commonwealth, would override any state or territory Acts or regulations inconsistent with the mutual recognition principles set out in the Act. The referral of the matter to the Commonwealth was specific in the sense that it required the conversion of a particular bill into a law of the Commonwealth.
- The legal effect of a referral in the specific context of the mutual recognition legislation was considered in Sande v Registrar, Supreme Court of Queensland by Lockhart J:
If the Commonwealth parliament does not act on the referred matter, the referring state can continue to legislate in the area: Graham v Paterson (1950) 81 CLR 1.
It is fundamental, however, that once a state has, by its legislation, referred a matter to the parliament of the Commonwealth, not only is the legislation of that state overridden by the Commonwealth legislation to the extent of inconsistency; but the source of legislative power with respect to it becomes that of the Commonwealth, not of the state. It is federal law which prevails.
- The schedule to the state and territorial legislation sets out the terms of the Commonwealth bill, which later was enacted by the Commonwealth parliament as the MRA.
- I mention this because the application by Mr Longhurst to the QBCC was for registration in Queensland as a builder pursuant to the Mutual Recognition (Queensland) Act 1992. That was based on a misconception, as the only relevant legislation in force was the Mutual Recognition Act 1992 (Cth), being an Act of the parliament of the Commonwealth, and action taken under the Act by federal or state authorities is action taken pursuant to that Act — federal, not state, law.
- I turn now to consider the construction of the MRA.
The mutual recognition principle and its application to occupations
- Part 1 of the Act, s 3 outlines the ``principal purpose” of the Act:
3. The principal purpose of this Act is to enact legislation authorised by the Parliaments of States under paragraph (xxxvii) of section 51 of the Commonwealth Constitution, and requested by the legislatures of the Australian Capital Territory and the Northern Territory, for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia.
- Part 3 deals with the ability of a person who is registered in connection with an occupation in a state (called the first state) to carry on an equivalent occupation in another state (called the second state).
- The expression “occupation” is defined in s 4(1):
“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;
- The mutual recognition principle is that, subject to the provisions in Part 3, a person who is registered in the first State for an occupation is entitled after notifying the local registration authority of the second State for the equivalent occupation to be registered in the second State for the equivalent occupation and, pending such registration, to carry on the equivalent occupation in another State.
- 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.
- To make an application for mutual recognition a person may lodge a written notice with the local registration authority of the second State seeking registration for the equivalent occupation in accordance with the mutual recognition principle.
- The notice requirements are set out in s 19(2). The requirements are extensive and directed to ensuring the person is not prohibited or in some way restricted from carrying on the occupation in any State. Relevantly, it is provided that the notice must:
state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any special conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any State
- Section 20 provides that 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 expressly provided that registration in the first State is a sufficient ground of entitlement to registration. The local registration authority is empowered to grant registration on that ground.
- Section 21 provides that registration must be granted within one month after the notice is lodged with the local registration authority. However, the local registration authority may refuse the grant of registration. If no decision is made by the local registration authority within a month the person is entitled to registration immediately at the end of that period.
- A local registration authority is entitled to refuse registration if any of the statements or information required by s 19 are false or misleading or any document or information required by s 19(3) has not been provided or is false or misleading.
- Section 24 deals with the review of decisions. It provides that, subject to the Administrative Appeals Tribunal Act 1975 (Cth) application may be made to the Administrative Appeals Tribunal (AAT) for review of a decision of a local registration authority in relation to its functions under this Act. Decision is defined to include “issuing, suspending, revoking or refusing to issue a licence, authority or other instrument.”
- If a local registration authority gives a person a notice of a decision the notice must include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975 (Cth), application for review of the decision may be made to the Tribunal by a person whose interests are affected by the decision. Tribunal is defined in s 4 to mean the Administrative Appeals Tribunal.
The decision made by the QBCC
- On 10 August 2016 the applicant submitted a Licence Application Form – Mutual Recognition requesting that the QBCC grant him a licence based on the existence of his Western Australian licence.
- On 18 August 2016 that application was refused. The decision-maker determined that he was a permanently excluded individual and as a consequence his mutual recognition licence application was refused.
- On 2 December 2016 an internal review of that decision upheld the original decision to refuse the application. It also dealt with the issue of whether he was a permitted individual in relation to the second relevant event.
- On 3 January 2017 the applicant made an application for review of the decision of 2 December 2016 to QCAT.
- Both parties agree that a decision to refuse a licence based on the application of the MRA is reviewable in the Administrative Appeals Tribunal, not QCAT.
- The respondent wishes to strike out the application for review brought in QCAT because QCAT does not have jurisdiction to hear it.
- The applicant does not want the review in QCAT to be struck out until he has a clear decision from the QBCC based on the MRA which is reviewable in the AAT. He accordingly seeks an order from QCAT directing the QBCC to make a decision expressly under the MRA. Once he has that decision he agrees to withdraw his application in QCAT.
- The respondent argues that the QBCC made a decision to refuse the licence under the MRA. In any event, the respondent argues that if this is not the case, that QCAT does not have jurisdiction to make the order sought.
- The Tribunal has the power, under s 47 of the QCAT Act, to strike out a proceeding if it is misconceived.
- The AAT has jurisdiction for review of a decision of a local registration authority in relation to its functions under the MRA. The local authority of a State for an occupation means the authority having the function conferred by legislation of registering persons in connection with their carrying on that occupation in the State. The QBCC is such an authority having the function conferred by the Queensland Building and Construction Commission Act 1991 (Qld) of registering persons in connection with their carrying on the occupation of builder in the State.
- The issue is whether the decision by the QBCC on 2 December 2016 was made or should be taken to have been made in relation to its functions under the MRA. In my view, it was. The functions of the QBCC under the MRA include the ability to register a person based on the mutual recognition principle or to refuse registration. The QBCC refused the application for registration under the MRA.
- The reasons for the decision refer to s 17(2) of the MRA which provides that 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. Because the applicant, under the relevant licensing laws in Queensland, became a permanently excluded individual on 19 March 2015 when he became an excluded individual for a second relevant event, he was, the QBCC said, outside the operation of the mutual recognition principle.
- The QBCC concluded in Review Notice that “the permanent exclusion categorisation of the review applicant results in him losing right to any mutual recognition benefits”. This, in my view, amounts to a refusal by them to grant the applicant registration under the MRA. This decision, in my view, is a decision reviewable in the AAT.
- Under the MRA, a person is not entitled to be registered if they do not submit a form which complies with s 19. Relevantly, the notice must:
(f) state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any special conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any State.
- It is arguable that the mutual recognition application made by the applicant did not accord with s 19 and that the notice did not crystallize his entitlement to registration in Queensland. The applicant, it appears, was unable to provide the notice in the terms required by s 19 because he was, at the time he made the application, a permanently excluded individual and as such prohibited from carrying on the occupation of builder in Queensland. In any event, the registration was refused because of the applicant’s permanent exclusion, in other words, on the basis he was personally prohibited from carrying on the occupation of builder in Queensland.
- I note that no application is made to review the decision by the QBCC that the applicant is an excluded individual. The applicant instead has based his arguments on the refusal to grant him mutual recognition and, in particular, that s 17(2)(a) of the MRA applies to effectively exclude consideration of the relevant QBCC excluded individual provisions on the basis they do not apply “equally” to licensees in Queensland. This argument reflects the nature of the application which, in my view, is an application for review of a decision by the QBCC in relation to its functions under the MRA, namely to refuse a licence under the MRA.
- The appropriate forum in which to review mutual recognition decisions made by a local registration authority is the AAT. Accordingly, I order that the application for review be struck out.
- The applicant, in addition to arguing that the application be dismissed, asked that I order that the decision be set aside and the matter returned to the QBCC for reconsideration with the direction that a decision be made in accordance with the MRA. However, s 24((1)(c) of the QCAT Act only operates with respect to a review of a reviewable decision. Here, for the reasons above, the relevant enabling Act does not confer review jurisdiction on QCAT. Accordingly, I find that the Tribunal has no jurisdiction to make the further order sought.
- The application to strike out application GAR006-17 is allowed.
This form did not accurately state the requirements of s 19(2) of the Mutual Recognition Act 1992 (Cth).
This was not a case where the states afterwards adopted the law which would have meant that the Commonwealth Act had the force of state law.
(1996) 40 ALD 1.
Mutual Recognition (Queensland) Act 1992, Schedule – Mutual Recognition Bill 1992.
Application to review a decision dated 23 December 2016, 4.
MRA, s 16(2).
Ibid, s 17(1).
Ibid, s 17(2).
Ibid, s 19(1).
Ibid, s 19(2)(f).
Ibid, s 20(2).
Ibid, s 21(3).
Ibid, s 21(4).
Ibid, s 23(1).
Ibid, s 34(2) which incorporates by reference the definition of decision in the Administrative Appeals Tribunal Act 1975 (Cth).
Ibid, s 34(3).
Reasons were provided by the QBCC on 31 January 2017.
QCAT Act, s 47(1)(a).
MRA, s 34.
MRA, s 4.
MRA, s 34(1).
MRA, s 34(4).
QBCC Review Notice, 6.
QBCC Statement of Reasons dated 2 December 2016, 7.
Re Petroulias  QCA 261,  (de Jersey CJ).
Application to Review dated 23 December 2016, 4.
MRA, s 34(1); Shaboodien and Dental Board of Western Australia  WASAT 102.
- Published Case Name:
Longhurst v Queensland Building and Construction Commission
- Shortened Case Name:
Longhurst v Queensland Building and Construction Commission
 QCAT 215
16 Jun 2017