By Matthew Bell
When can registration authorities for building practitioners refuse to register on the basis of lack of ‘good character’?
The High Court of Australia unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia, and agreed with the Full Court that the Victorian registration authority for building practitioners was unable to refuse registration in Victoria on the basis that the applicant did not meet the ‘good character’ provisions in the Building Act 1993 (Vic) (‘BAV’), to a practitioner registered in New South Wales, notwithstanding the lack of ‘good character’ provisions in NSW. This has ramifications for building practitioners, but also for registration schemes around the country and for the efficacy of legislative efforts to impose a certain level of competence on various practitioners.
The case revolved around two aspects of the Mutual Recognition Act 1992 (Cth) (‘MRA’):
- the discretion (if any) provided to state regulators to refuse registration (here, on the good character grounds) under MRA s 20(2); and
- whether those character provisions under the Victorian BAV fell within the exception provided (under MRA s 17(2)), by which the mutual recognition scheme is said not to ‘affect the operation of laws that regulate the manner of carrying on an occupation in the second State’.
The Court upheld a narrow view of such discretion and of the exception. This meant that the applicant was entitled to have his registration in Victoria considered without regard to character-related matters (which, in the Victorian authority’s view, disqualified him from registration in that state). As was summarised by Nettle and Gordon JJ at :
it was not open to the [Victorian Building Practitioners] Board to determine whether Mr Andriotis was of good character as required by the [BAV]. Mr Andriotis was entitled to registration in Victoria because, having lodged a written notice with that Board under the [MRA], the fact of his registration in New South Wales was itself a sufficient ground of entitlement to registration for the equivalent occupation in Victoria.
There are cogent policy reasons which justify such a result. These are founded in (as Kiefel CJ, Bell and Keane JJ noted at ) ‘the goal of freedom of movement and goods and service providers in a national market in Australia’. As Gageler J pointed out, the mutual recognition scheme is of vital importance in delivering upon such a goal, having been the first order of business for the Council of Australian Governments upon its establishment in 1992 (see –). Continue reading