Mutual Recognition- an assessment of equivalence
In the recent decision of Victorian Building Authority v Andriotis [2019] HCA 22 (“Andriotis”) the basis of the mutual recognition system between building authorities was reaffirmed by the High Court.
The High Court has rejected the Victorian Building Authority’s attempts to impose its own level of assessment of “good character” that differs to the standards imposed by other states.
The respondent, Mr Andriotis, was registered in New South Wales as a waterproofer. He sought registration in Victoria. The Victoria Building Practitioners Board refused Mr Andriotis’ application because his New South Wales application, which stated false work experience, demonstrated dishonesty and rendered him to be not of “good character” as required by the Building Act 1993 (Vic).
Section 17(1) of the Mutual Recognition Act 1992 (Cth) (‘the MRA’) provides that a person who is registered in one State for an occupation is entitled to be registered in the equivalent occupation in another State if the person lodged written notice with the local registration authority of the second State.
The main question of the appeal was whether it is open to a local registration authority under the MRA to refuse to register for an equivalent occupation in its own State, a person who is registered for an occupation in another State, on the basis that it has reached the conclusion that the person is ‘not of good character’.
Kiefel CJ, Bell and Keane JJ held that the mutual recognition principle above accepts that registration for an occupation in the initial State is sufficient for registration in the other State, without any further requirements of the laws of the second State being fulfilled.
Indeed, their Honours quoted the wording of the Second Reading Speech of the Bill that became the MRA, stating at [26] that
“[local] registration authorities will be required to accept the judgement of their interstate counterparts of a person’s… character of fitness to practise.”
Their Honours held that registration was subject to another State’s laws, it would be in direct opposition of the primary purpose of the MRA, namely, to promote the goal of freedom of movement of goods and service providers in a national market in Australia.
The appeal, which was dismissed with costs, provides that so long as a person is registered in one State for an occupation, that person is entitled to be registered in another State without any consideration of his/her ‘good character’. Upon giving notice to the second State and providing evidence of his/her home registration, a person should be granted registration in that second State and be immediately entitled to commence practice in an equivalent occupation in that second State.
If you have any questions or would like further information please contact a member of the Construction Law Team.
