In Victorian Building Authority v Nickolaos Andriotis [2019] HCA 22, a judgment that has attracted less attention than yesterday's decision in Banerji, the High Court has held that s 20(2) of the Mutual Recognition Act 1992 (Cth) does not provide a state/territory registration authority with a discretionary power to refuse registration under the MRA.
In considering the appeal from the Federal Court it has also held that a "good character" requirement in a state Act does not fall within the exception to the "mutual recognition principle" in s 17(2) of the MRA. Andriotis was registered in New South Wales as a waterproofer. He falsely stated in his application to the New South Wales registration authority that he had certain work experience. He then sought registration as a waterproofer in Victoria pursuant to the MRA. The Victorian Building Practitioners Board refused to grant registration on the basis that his NSW application demonstrated dishonesty. He was thus not of "good character" as required by s 170(1)(c) of the Building Act 1993 (Vic), the Victorian statute regulating registration. The Administrative Appeals Tribunal affirmed the Board's decision.
On the Andriotis' appeal to the Federal Court, the Victorian Building Authority as successor to the Board argued that a local registration authority retains a discretion under s 20(2) to refuse registration. It further argued that, in any event, the "good character" requirement in s 170(1)(c) of the Building Act falls within the exception to the mutual recognition principle in s 17(2) of the MRA.
The Full Court in Andriotis v Victorian Building Authority [2018] FCAFC 24 rejected both arguments and allowed Andriotis' appeal. The mutual recognition principle set out in s 17(1) of the MRA is that a person registered in the first state for an occupation is entitled, after notifying the local registration authority of the second state, to be registered in the second state for the equivalent occupation. Section 20(2) provides that the local registration authority "may" grant registration on that ground. Section 17(2) provides for an "exception" to the mutual recognition principle, which is that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State so long as those laws, relevantly, are "not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation".
In its judgment the FCAFC drew on Re Petroulias [2004] QCA 261, Re Tkacz; Ex parte Tkacz [2006] WASC 315, and Scott v Law Society of Tasmania [2009] TASSC 12 - three judgments of particular interest for law students heading towards admission as legal practitioners.
By grant of special leave, the Building Authority appealed to the High Court.
The Court held that the words "qualification … relating to fitness to carry on the occupation" in s 17(2) have a broader meaning than a qualification of an educational or technical kind, and clearly encompass the subject matter of s 170(1)(c) of the Building Act. That construction is consistent with the scheme of the MRA. The mutual recognition principle upon which the MRA is founded accepts that registration for an occupation in a first state is sufficient for recognition in the second state, without any further requirements of the law of the second State being fulfilled.
The Court held that the word "may" in s 20(2) of the MRA is empowering, providing a local registration authority with power to grant registration under the MRA on the "ground" referred to in s 20(1), namely registration in the first state. Section 20(2) does not admit of a broader discretion to refuse registration.
