Lawrence and Department of Minerals and Energy [1999] AATA 459 (25 June 1999)

Last Updated: 28 June 1999

DECISION AND REASONS FOR DECISION [1999] AATA 459

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/44

GENERAL ADMINISTRATIVE DIVISION )

Re QUENTIN DERRICK LAWRENCE

Applicant

And DEPARTMENT OF MINERALS AND ENERGY

Respondent

DECISION

Tribunal Associate Professor S D Hotop, Senior Member Dr M C Wood, Member

Date 25 June 1999

Place Perth

Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant is entitled to be granted a first class mine manager's certificate by the Board of Examiners under reg 2.21 of the Mines Safety and Inspection Regulations 1995 (WA), subject to the condition that that certificate be restricted to coal mines of any kind, including underground coal mines and open cut coal mines, with effect from 17 January 1998.

..........(sgd S D Hotop)............

Senior Member

CATCHWORDS

PROFESSIONAL QUALIFICATIONS - Mutual Recognition - applicant certificated in South Australia as a first class mine manager (restricted to coal mines) - applicant applied for registration in Western Australia for equivalent occupation - local registration authority in Western Australia made decision refusing registration - decision of local registration authority not made within one month after lodgment of application - applicant entitled to registration in equivalent occupation - whether necessary to impose condition on registration to achieve equivalence of occupations - whether appropriate to make declaration of non-equivalence.

Acts Interpretation Act 1901 s22(1)

Mutual Recognition Act 1992 ss 4(1), (2), 16, 17, 18, 19, 20, 21, 23, 24, 28, 29, 30, 31

Mutual Recognition (Western Australia) Act 1995 (WA)

Mines and Works Inspection Act 1920 (SA)

Mines and Works Inspection Regulations (SA)

Mines Safety and Inspection Act 1994 (WA)

Mines Safety and Inspection Regulations 1995 (WA)

Re Cleary and Nurses' Board of the Northern Territory (1996) 41 ALD 395

Re Rowe and New South Wales Police Service (1997) 47 ALD 442

Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123

REASONS FOR DECISION

25 June 1999 Associate Professor S D Hotop, Senior Member Dr M C Wood, Member

1. This is an application by Quentin Derrick Lawrence ("the applicant") for review of a decision of Mr R S Hopkins, Chairman, Board of Examiners, Mining Operations Division, Department of Minerals and Energy, Western Australia, communicated to the applicant by letter dated 27 January 1998. The effect of that decision was to refuse the applicant's application for registration in Western Australia as a holder of a "1st Class Mine Manager's Certificate of Competency for Coal Mines", pursuant to the provisions of Part 3 of the Mutual Recognition Act 1992 ("the MR Act").

2. At the hearings the applicant appeared in person without representation and the Department of Minerals and Energy ("the respondent") was represented by Mr J O'Sullivan of counsel (at the initial hearing) and by Mr B King of counsel (at the resumed hearing). The Tribunal had before it the documents ("T documents") furnished by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and other documentary exhibits (some of which will be referred to later in these reasons) tendered by the parties. Oral evidence was given by the applicant and, on behalf of the respondent, by Mr M Knee.

The Factual Background

3. The background facts, as found by the Tribunal on the basis of the T documents and about which there is no dispute between the parties, are as follows.

4. The applicant is the holder of a "(Restricted) Mine Manager's Certificate of Competency, First Class" issued by the Board of Examiners for Mine Managers, Department of Mines and Energy, South Australia, pursuant to the Mines and Works Inspection Act 1920 (SA) and Regulations made thereunder, on 21 May 1993. It is expressly stated in that Certificate that it is "Restricted to coal mines".

5. The applicant is the holder of a "First Class Mine Manager's Certificate of Competency" issued by the Board of Examiners, Department of Minerals and Energy, Western Australia, pursuant to the Mines Regulation Act 1946 (WA) and Regulations made thereunder, on 7 December 1994.

6. The applicant lodged with the respondent a form of notice under s19 of the MR Act applying for registration in Western Australia, in accordance with the mutual recognition principle, as a holder of a "1st Class Mine Manager's Certificate of Competency for Coal Mines". The notice was accompanied by a statutory declaration verifying the contents of the notice, as required by s19(5) of the MR Act. The statutory declaration bears the signature of the applicant, is dated 17 December 1997, and indicates that the applicant's signature was witnessed by Robert Sydney Hopkins, Assistant Director, Department of Minerals and Energy, Western Australia.

7. Following the lodgment of the abovementioned notice, no decision regarding the applicant's application for registration was made by the respondent until 27 January 1998. By letter of that date, Mr R S Hopkins, in his capacity as Chairman, Board of Examiners, Mining Operations Division, Department of Minerals and Energy, Western Australia, wrote to the applicant as follows:

"I apologise for the delay incurred over the Christmas period in obtaining information from South Australia and NSW pertinent to your application for registration of your occupation in Western Australia.

First, let me assure you that your WA First Class Certificate of Competency dated 7 December 1994 enables you to carry on your normal occupation at all existing mines in this State, should you apply for a mine manager's position in Western Australia.

As regards your enquiry about the WA First Class Mine Manager's Certificate for coal mines, I advise that there are no underground coal mines in WA (and probably wont be in the foreseeable future) and thus there is no such occupation in this State for which to register. All present WA coal mines are surface coal mines for which your WA First Class Certificate of Competency satisfies the legislative requirements of the new Mines Safety and Inspection Act and Regulations 1995." (original emphasis)

8. On 4 February 1998 the applicant lodged with the Tribunal an application for review of the abovementioned decision of 27 January 1998.

The Mutual Recognition Legislation

9. The relevant provision of the MR Act are as follows:

"4.(1) In this Act, unless the contrary intention appears:

...

'local registration authority' of a State for an occupation means the person or authority in the State having the function conferred by legislation of registering persons in connection of their carrying on that occupation in the State;

'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;

...

'registration' includes the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation;

...

'Tribunal' means the Administrative Appeals Tribunal.

(2) This Act is to be interpreted in accordance with the Acts Interpretation Act 1901 as in force at the date on which this Act receives the Royal Assent.

PART 3 - OCCUPATIONS

Division 1 - Preliminary

16.(1) The mutual recognition principle as applying to occupations is as set out in this Part.

(2) This Part deals 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.

(3) In this Part, the first-mentioned State is called 'the first State', and the other State is called 'the second State'.

17.(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:

(a) to be registered in the second State for the equivalent occupation; and

(b) pending such registration, to carry on the equivalent occupation in the second State.

(2) However, 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, so long as those laws:

(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and

(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.

18.(1) This Part applies to individuals and occupations carried on by them.

(2) This Part extends to an occupation carried on by an individual, where the individual is subject to more than one system of registration or more than one local registration authority in a State, and accordingly this Part applies in relation to each such system of registration and each such authority.

(3) Without limiting subsection (2), an example of such an occupation is that of a legal practitioner, which involves both the admission as a legal practitioner by a court and the issue of a practising certificate by another body.

Division 2 - Entitlement to registration

19.(1) A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.

...

20.(1) 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 that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.

(2) The local registration authority may grant registration on that ground and may grant renewals of such registration.

(3) Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State.

(4) Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws:

(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and

(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.

(5) The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person's registration in the first State or that are necessary to achieve equivalence of occupations.

(6) This section has effect subject to this Part.

21.(1) Registration must be granted within one month after the notice is lodged with the local registration authority under section 19.

(2) When granted, registration takes effect as from the date the notice was lodged.

(3) However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration.

(4) If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.

...

23.(1) A local registration authority may refuse the grant of registration if:

(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or

(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or

(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.

(2) A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.

24. A local registration authority must give the person who lodges a notice in accordance with section 19 a notice in writing of its decision to grant registration, or to postpone or refuse the grant of registration, or to impose conditions on registration.

...

Division 4 - Equivalent occupations

28. The equivalence of occupations carried on in different states is to be determined in accordance with this Part.

29.(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by the imposition of conditions).

(2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States.

(3) This section has effect subject to any relevant declarations in force under this Division.

30.(1) This part is to be given effect in accordance with relevant declarations (if any) made under this Division regarding equivalent occupations.

(2) If a declaration made by the Tribunal and a declaration made by Ministers are inconsistent, the ministerial declaration prevails.

(3) A declaration under this Part does not affect the registration of any person already registered (except in the case of a declaration made by the Tribunal in relation to that person specifically).

31.(1) On a review, the Tribunal may make an order that a person who is registered in a particular occupation in a particular State is or is not entitled to registration in another State in a particular occupation, and may specify or describe conditions that will achieve equivalence.

(2) On such a review, the Tribunal may make a declaration that occupations carried on in 2 States are not equivalent, but only if the Tribunal is satisfied that:

(a) the activities involved in the occupations are not substantially the same (even with the imposition of conditions); or

(b) registration in one state should not entitle registered persons to carry on a particular activity or class of activity in the other State, where:

(i) the activity or class of activity is a material part of the practice of a person registered in the first State for the occupation; and

(ii) the activity or class of activity, if carried out by a person not conforming to the appropriate standards, could reasonably be expected to expose persons in the other State to a real threat to their health or safety or could reasonably be expected to cause significant environmental pollution (including air, water, noise or soil pollution); and

(iii) it is not practicable to protect the health or safety of such persons from that threat or the environment from such pollution by regulating the manner in which services in the occupation are provided.

...".

10. The source of the Commonwealth Parliament's power to pass the MR Act is s51(xxxvii) of the Commonwealth Constitution which empowers the Parliament 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, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:".

The MR Act was subsequently adopted by the Parliament of Western Australia: see the Mutual Recognition (Western Australia) Act 1995 (WA). Following that adoption the relevant legislation in force in Western Australia is the MR Act which, by reason of that adoption, has the force of State law: Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123 at 131-132.

The Evidence

11. The applicant tendered in evidence a letter dated 15 January 1998 to him from Ms L Taylor, Secretary to the Board of Examiners for Mine Managers, Mining Operations Branch, Department of Mines and Energy Resources, South Australia. That letter relevantly states:

"I refer to your letter of 20 December 1997 in which you seek confirmation that your First Class Mine Manager's Certificate No. 175 is a First Class Mine Manager's Certificate Restricted for Coal Mining.

There is only one coal mine in South Australia (Leigh Creek) and this is an open cut operation. If these operations were extended to underground mining, you would be entitled to be registered as the Manager."

12. The respondent tendered in evidence a letter dated 6 January 1999 from Mr R S Hopkins in his capacity as Director - Mining Operations, Department of Minerals and Energy, Western Australia, to the Chairman of the Board of Examiners, Department of Primary Industries and Resources, South Australia, seeking clarification of the letter of 15 January 1998 referred to in paragraph 11 above. Mr Hopkins' letter was in the following terms:

"Mr Q Lawrence is still in dispute with this Department, in particular with the Board of Examiners (Coal), over his claim for mutual recognition of his Restricted Coal Mine Manager's Certificate issued by the South Australian Board of Examiners for Mine Managers.

The South Australian Board has written a letter (attached) stating that, should South Australia's open cut coal mine develop into an underground operation Mr Lawrence would be entitled to be the registered manager. Mr Lawrence wants a similar endorsement from Western Australia.

The West Australian Board's position is that:

(a) Mr Lawrence has a Western Australian First Class Mine Manager's Certificate (obtained by examination in 1994) which enables him to be the underground manager or pit superintendent of any mine in Western Australia.

(b) That, should there be an underground coal mine developed in Western Australia in the foreseeable future, the Board of Examiners (Coal) would not recognise Mr Lawrence's current qualifications and would require him to apply to the Board in the normal manner.

In order to clarify our position to the Tribunal would you please clarify the South Australian Board of Examiners' position regarding certification for underground coal mining management, and in particular:

(i) Has the Board ever examined any applicant to ascertain his or her competency to manage an underground coal mine?

(ii) On what basis can the Board determine Mr Lawrence's competency to manage an underground coal mine?

(iii) Were there any underground coal mines in South Australia in the past 20 years for which certificates of competency were required and are there any underground coal mines planned for the immediate future?" (original emphasis)

The respondent also tendered in evidence a letter dated 16 February 1999 from Mr R Mathews, Chief Inspector of Mines, Chairman, Board of Examiners, Department of Primary Industries and Resources, South Australia, responding to Mr Hopkins' letter of 6 January 1999. Mr Mathews' letter stated as follows:

"In response to the specific questions regarding Mr Q Lawrence, I wish to advise the following:

(I) The Board, to the best of my knowledge has never examined an applicant to specifically ascertain his or her competency to manage an underground coal mine. In South Australia, the applicant's verified experience, personal references and comments from the person who examines the applicant in Mining Law, are considered by the Board when determining applicants' eligibility.

(II) Mr Lawrence submitted sufficient detailed and verified information on his coal mining experience and suitable references to the Board. The NSW Coal Mining Qualification Board advised that Mr Lawrence had sufficient experience for a Coal Mine Managers Certificate. ...

On 6 April 1993, the Board advised Mr Lawrence that he did not have sufficient experience to be eligible for a South Australian First Class Mine Managers Certificate. However, the Board decided to advise Mr Lawrence he would be eligible for a First Class Mine Managers Certificate restricted to Coal Mines upon passing an examination in Mining Law.

In their letter of 6 April 1993 to Mr Lawrence, the Board warned him 'due to the unusual circumstances with coal mining restricted in SA, the certificate may not be fully reciprocal with certificates in other states'. ...

It would appear that the Board was not aware of the requirements and processes of mutual recognition.

On 20 May 1993, an Inspector of Mines examined Mr Lawrence and advised the Board that Mr Lawrence demonstrated he had satisfactory knowledge of SA's mining law including knowledge of the Occupational Health, Safety & Welfare Act.

Mr Lawrence was subsequently issued with First Class Mine Managers Certificate No. 175 Restricted to Coal Mines.

Under the Mines & Works Inspection Act 1920, 'mine' means any place in, on, or under which any mining operation has been or is being carried on, 'mining operation' means any operations carried on in the course of searching for or recovering any minerals, and 'mineral' includes coal.

There is only one coal mine in South Australia (at Leigh Creek) and this is an open cut operation. If these operations were extended to underground mining, Mr Lawrence would therefore be entitled to be registered as the Manager.

Because of changes to the Chair, membership and secretariat of the Board, I am unable to determine if it was the Board's intention for Mr Lawrence to be entitled to manage both underground and surface coal mines in South Australia.

(III) In both instances, the answer is No."

13. Oral evidence was given to the Tribunal by Martin John Knee. Mr Knee told the Tribunal that he is presently the General Manager of Mining Safety and Head of the Mine Safety Inspectorate in the Department of Minerals and Energy, Western Australia, and has had some 29 years of experience in open cut and underground mining.

14. Mr Knee told the Tribunal that there are open cut coal mines, but presently no underground coal mines, in Western Australia. He explained to the Tribunal the main differences between coal mining and metalliferous mining and, as regards coal mining, the main differences between open cut and underground mining. He also explained the main differences, in relation to the role and required expertise of a mine manager, as between an open cut and an underground mine. Essentially, his evidence was that it is "considerably easier" to manage an open cut mine than to manage an underground mine and that, in order properly to manage an underground coal mine, a person would need particular knowledge, experience and expertise in underground coal mining because of the "range of hazards and risks" associated with underground coal mining and because of differences as between the way in which coal is won and the way in which metalliferous minerals are won. He said that the hazards and risks involved in underground coal mining are considerably greater that those involved in open cut coal mining or in underground or open cut metalliferous mining and, for that reason, he regarded the occupation of manager of an underground coal mine as different from the occupation of manager of each of the other abovementioned categories of mine, namely, open cut coal mine, underground metalliferous mine, and open cut metalliferous mine. He added that he would have concerns regarding the safety of miners in the event that a person, who lacked the necessary expertise and experience, were appointed as the manager of an underground coal mine.

15. Mr Knee also told the Tribunal that there are differences as between an underground coal mine manager's certificate and the other categories of mine manager's certificates in the current Western Australian legislation. He said that there is a difference in the constitution of the Board of Examiners and a difference in the practical experience requirement.

16. The applicant gave oral evidence regarding the date on which he lodged with the respondent the notice under s19 of the MR Act and the accompanying statutory declaration, referred to in paragraph 6 above. He confirmed that he lodged those documents with the respondent on 17 December 1997 and that they were received, on behalf of the respondent, by Mr R S Hopkins (the (then) Assistant Director - Mining Operations) who at the same time witnessed his signature on the statutory declaration and also signed the form as a witness.

The Relevant State Legislation

South Australia

17. The relevant South Australian legislation is the Mines and Works Inspection Act 1920 and the Mines and Works Inspection Regulations made under s18 of that Act. In s4(1) of that Act:

* the word "mine" is defined to mean "any place in, on, or under which any mining operation has been or is being carried on ...";

* the phrase "mining operation" is defined to mean, inter alia, "any operation carried on in the course of searching for or recovering any mineral";

* the word "mineral" is defined to mean, inter alia, any "coal".

18. The Regulations which were in force when the Restricted First Class Mine Manager's Certificate of Competency was granted to the applicant by the Board of Examiners for Mine Managers on 21 May 1993 were the Mines and Works Inspection Regulations 1966, and the Certificate was expressly granted under reg 210. Regulation 208(1) provided that "(n)o person shall act as the manager of a mine unless he holds an appropriate qualification in accordance with this regulation". Under reg 208(2), the appropriate qualification for the manager of a mine where 20 or more persons were working was a "first-class mine-manager's certificate" and, in the case of a mine where fewer than 20 persons were working, a "first-class mine-manager's certificate" was one of several alternative appropriate qualifications for the manager. Regulation 210 authorised the Board of Examiners for Mine Managers to grant a "first-class mine-manager's certificate". Regulation 212(1) authorised the Board to issue a restricted first-class mine-manager's certificate and reg 212(2) provided:

"A restricted certificate shall contain therein a statement of the particular mine or particular class of mines which the holder of the certificate is entitled to manage."

Those Regulations expired on 1 September 1994 and since that date the practice in South Australia has been to make new Regulations every 2 years which revoke and replace the existing Regulations.

19. The Regulations which were in force when the applicant lodged the notice under s19 of the MR Act with the respondent were the Mines and Works Inspection Regulations 1996. Under reg 5(1), only a person who holds the "appropriate qualifications" might be appointed as the manager of a mine. Regulation 6 provided that the "appropriate qualification" for the manager of a mine (other than a quarry) at which 20 or more persons were working was a "first-class mine-manager's certificate", and an "appropriate qualification" for the manager of a mine (other than a quarry) at which fewer than 20 persons were working, and for the manager of a quarry, was, inter alia, a "first-class mine-manager's certificate". Clauses 5, 6 and 7 of sched 1 to the Regulations authorised the Board of Examiners to grant first-class mine-manager's certificates, second-class mine-manager's certificates, and quarry manager's certificates, respectively. Clause 8 of sched 1 authorised the Board of Examiners to issue "restricted certificates". Clause 8(2) provided:

"A restricted certificate must contain a statement of the particular mine or particular class of mines that the holder of the certificate is entitled to manage".

20. The Regulations which are presently in force are the Mines and Works Inspection Regulations 1998 whose relevant provisions are generally similar to the abovementioned corresponding provisions of the 1996 Regulations except that the certificates of competency which the Board of Examiners is authorised to grant, and which constitute "appropriate qualifications" for managers of mines or quarries, are now designated as: "first-class underground mine-manager's certificate", "second-class underground mine-manager's certificate", "first-class quarry-manager's certificate", and "second-class quarry-manager's certificate". Clause 5(2) of sched 1 to the 1998 Regulations provides:

"A person holding a first-class mine-manager's certificate immediately before the commencement of these regulations will be taken to have been granted a first-class underground mine-manager's certificate and a first-class quarry-manager's certificate under these regulations (subject to any restrictions imposed by the Board of Examiners)".

Western Australia

21. The relevant Western Australian legislation is the Mines Safety and Inspection Act 1994 and the Mines Safety and Inspection Regulations 1995 made under s104 of that Act. Prior to the commencement of that Act the relevant statutes relating to the regulation of mines were the Mines Regulation Act 1946 (which applied to mines other than coal mines) and the Coal Mines Regulation Act 1946 (which applied to coal mines). Both of those Acts were repealed and replaced by the Mines Safety and Inspection Act 1994 whose object was, inter alia, to consolidate the law relating to the safety, inspection and regulation of mines and mining operations.

22. Section 48 of the Mines Safety and Inspection Act 1994 establishes the Board of Examiners and authorises it, inter alia, to issue, suspend and cancel "certificates of competency".

23. The Mines Safety and Inspection Regulations 1995 prescribe the academic qualifications and practical experience required for the issue by the Board of Examiners of various categories of certificates of competency, including a "first class mine manager's certificate" and a "quarry manager's certificate". Regulation 2.21 prescribes the academic qualifications and practical experience required for the issue of a "first class mine manager's certificate". As regards the practical experience requirements, reg 2.21(4) makes special provision in the case of an application for a "first class mine manager's certificate for underground coal mines", as distinct from an application for such a certificate in respect of any other type of mine. Regulation 2.22 prescribes the academic qualifications and practical experience required for the issue of a "quarry manager's certificate". Regulations 2.35 and 2.36 provide that a person must not act as an underground manager of a mine, or as a quarry manager, unless the person has a specified certificate of competency (including a first class mine manager's certificate) or the written approval of the Board of Examiners. Accordingly, under those regulations a person who holds a first class mine manager's certificate is eligible or qualified to be appointed as an underground manager of a mine or as a quarry manager.

Application of the Mutual Recognition Act in the Circumstances of the Present Case

24. Initially the respondent conceded that the applicant was entitled, pursuant to s20 of the MR Act, to "registration in Western Australia of his South Australian occupation, namely, First Class Mine Manager (Coal Mines)". That concession was confirmed on the first day of the hearing in this matter by Mr O'Sullivan (for the respondent) (see Transcript, p2). At the resumed hearing, however, Mr King (for the respondent) submitted that, for the purpose of applying the mutual recognition principle, the occupation for which the applicant had been registered in South Australia should be regarded as that of manager of an open cut coal mine. He also submitted that it would be appropriate in this case for the Tribunal to make an order that the applicant is entitled to registration in Western Australia for the occupation of coal mine manager, subject to the condition (so as to achieve equivalence with the occupation for which he had been registered in South Australia) that that registration covers open cut coal mines only and does not include underground coal mines. He further submitted that the Tribunal should make a declaration, under s31(2) of the MR Act, that the occupation of coal mine manager in South Australia is not equivalent to the occupation of underground coal mine manager in Western Australia.

25. Before considering the application of the MR Act in the circumstances of the present case, the Tribunal must first consider whether the MR Act is applicable in those circumstances. The fundamental requirement for the application of the "mutual recognition principle" under s17(1) of the MR Act is that there must be an "occupation", as defined in s4(1) of the Act, for which a person has been "registered in the first State". The Tribunal finds that that requirement is satisfied in the present case. The relevant occupation may be described as "mine manager" or, more narrowly, "coal mine manager" and, in either case, it is an occupation that, under the relevant legislation in South Australia and Western Australia, may be carried on only by "registered persons" - that is, by persons certificated or approved by the "local registration authority" (as defined in s4(1) of the MR Act), namely, the Board of Examiners for Mine Managers in South Australia, and the Board of Examiners in Western Australia.

26. In Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123 Lockhart J said (in relation to the MR Act) (at p144):

"The Act is intended to remove artificial barriers to the mobility of services and labour caused by regulatory differences among the States and Territories of Australia. If a person is registered to carry out an occupation in one State or Territory, then he or she should be able to be registered and to carry on the equivalent occupation in any other State or Territory, without undergoing examinations or other assessments with respect to educational qualifications and experience. Nevertheless, the Act preserves the right of the State or Territory in which the applying person seeks to practise (described in the Act as the second State) to regulate the manner of carrying on an occupation in that State, so long as the laws of that State apply equally to persons carrying on or seeking to carry on the occupation under the law of the second State (ss 17 and 20 of the Act)."

In Re Cleary and Nurses' Board of the Northern Territory (1996) 41 ALD 395 the Tribunal (Deputy President B J McMahon) said (in relation to s17 of the MR Act) (at p403):

"(22) Section 17(1) makes it clear that the entitlement to registration in the second state is to be by virtue of the MRA. ...

(23) The other aspect of s17 to be noted is that it deals with entitlement to registration subject to certain exceptions. The exceptions do not relate to entry into the profession of the second state. They deal only with the regulation by the second state of the manner of carrying on an occupation. The section specifically excludes considerations of qualification or experience relating to fitness to carry on the occupation as an exception to the mutual recognition principle."

27. In the present case the applicant, pursuant to s19(1) of the MR Act, lodged with the respondent a written notice applying for registration in Western Australia as the holder of a "1st Class Mine Manager's Certificate of Competency for Coal Mines". That notice, which involved the completion by the applicant of a standard form prepared by the respondent for the purpose of s19 of the MR Act, complied with the formal requirements prescribed by s19(2), and was accompanied by documentation evidencing the applicant's existing registration (as required by s19(3)) and by a statutory declaration certifying the authenticity of the existing registration documents and verifying the statements and other information in the notice (as required by s19(4) and (5)). Accordingly, the Tribunal finds that the abovementioned notice lodged by the applicant with the respondent fully complied with the formal requirements prescribed by s19 of the MR Act.

28. As regards the date on which the applicant lodged the abovementioned notice with the respondent, the Tribunal accepts the applicant's evidence that he lodged that notice on 17 December 1997. That evidence was not contradicted by the respondent and was ultimately accepted at the hearing by Mr King (for the respondent). Accordingly, the Tribunal finds that the applicant lodged with the respondent a valid and proper notice under s19 of the MR Act on 17 December 1997.

29. Section 19 of the MR Act refers to a notice under s19 being lodged with "the local registration authority of the second State for the equivalent occupation", and under s20(1) it is a precondition of entitlement to registration in the equivalent occupation in the second State that a s19 notice have been lodged with "a local registration authority of the second State". In the present case, the relevant local registration authority in Western Australia is the Board of Examiners. The applicant, however, lodged his s19 notice with the respondent, and not directly with the Board of Examiners. Although the Board of Examiners is a separate statutory authority distinct from the respondent, being established by s48(1) of the Mines Safety and Inspection Act 1994, it functions within the respondent. Indeed, the letter of 27 January 1998, whereby the reviewable decision in this matter was communicated to the applicant, was written on the respondent's letterhead and was signed by R S Hopkins in his capacity as Chairman of the Board of Examiners. Mr Hopkins, it will be recalled (see paragraph 6 above), is also the officer of the respondent who received the s19 notice lodged by the applicant and who witnessed the applicant's signature on the accompanying statutory declaration. Accordingly, the Tribunal finds that, on 17 December 1997, the applicant lodged a valid and proper notice under s19 of the MR Act with the relevant "local registration authority of the second State" - namely, the Board of Examiners, Western Australia - for the purposes of ss 19 and 20 of the MR Act.

30. Having lodged a valid and proper notice under s19 of the MR Act with the relevant local registration authority in Western Australia, the applicant became entitled, by s20(1) of the MR Act, to be "registered in the equivalent occupation" by that local registration authority in Western Australia, namely, the Board of Examiners.

31. Section 21 of the MR Act provides for the kinds of action to be taken by the local registration authority of the second State following the lodgment of a s19 notice. Specifically, that local registration authority may grant registration or may postpone or refuse the grant of registration, provided that each such action is taken within one month after the lodgment of the s19 notice. Section 21(4) provides for the consequence of non-compliance with that proviso as follows:

"If the local registration authority neither grants the registration nor takes action under subsection (3) - (that is, either postponement or refusal of the grant of registration) - within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved."

32. In the present case none of the kinds of action referred to in s21 of the MR Act was taken by the Board of Examiners in Western Australia, following the lodgment of the applicant's s19 notice on 17 December 1997, until 27 January 1998. The relevant action that was purportedly taken by the Board of Examiners on the latter date was the refusal of the grant of registration to the applicant, which constituted the reviewable decision in this matter.

33. By s4(2) of the MR Act, that Act is to be interpreted in accordance with the Acts Interpretation Act 1901 as in force on the date on which the MR Act received the Royal Assent (namely, 21 December 1992). Section 22(1) of the Acts Interpretation Act 1901 relevantly provides:

"In any Act, unless the contrary intention appears:

...

(b) Month shall mean calender month;

...

(g) Calender month means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month;

...".

The word "month" is not defined in the MR Act and no "contrary intention", within the meaning of s22(1) of the Acts Interpretation Act 1901, appears in the MR Act.

34. Accordingly, the Tribunal finds that the relevant local registration authority - namely, the Board of Examiners in Western Australia - neither granted registration to the applicant, nor took action under s21(3) of the MR Act (that is, postponed or refused the grant of registration to the applicant), within the period of one month after the applicant's s19 notice was lodged with it. It follows from that finding that the applicant is, by s21(4) of the MR Act, "entitled to registration immediately at the end of that period" - that is, on and with effect from 17 January 1998.

35. The registration to which the applicant is entitled by reason of s21(4) of the MR Act is that to which entitlement is generally conferred by s20(1) of that Act - that is, registration in the "equivalent occupation" in the second State, namely, Western Australia.

36. The general principles to be applied in determining the equivalence of occupations carried on in different States are stated in s29 of the MR Act. In Re Rowe and New South Wales Police Service (1997) 47 ALD 442 the Tribunal (Deputy President S A Forgie) said (in relation to s29 of the MR Act) (at p444):

"(12) It is clear from this section that there are, in practical terms, five distinct steps to be undertaken in determining the equivalence of occupations. The first is to identify the occupation for which the person is registered in the first state or territory. This is followed by the identification of the activities authorised to be carried out under that registration. The third step is to identify an occupation in the second state or territory for which a person may be registered and the fourth to ascertain the activities to be carried out under that registration. A comparison is then made between the activities authorised to be carried out under each of the registrations to determine whether those activities are substantially the same. That is the fifth step. Part of that fifth step is to consider whether conditions should be imposed on registration to achieve equivalence between those occupations."

37. The Tribunal finds, on the basis of the "(Restricted) Mine Manager's Certificate of Competency, First Class" granted to the applicant by the Board of Examiners for Mine Managers on 21 May 1993, that the occupation for which the applicant is registered (within the meaning of the MR Act) in South Australia is that of First Class Mine Manager (Restricted to Coal Mines). On the basis of the letter of 15 January 1998 from Ms L Taylor, Secretary to the Board of Examiners for Mine Managers (referred to in paragraph 11 above) and the letter of 16 February 1999 from Mr R Mathews, Chairman of the Board of Examiners for Mine Managers (referred to in paragraph 12 above), the Tribunal finds that the activities authorised to be carried out under the abovementioned Certificate of Competency chiefly comprise acting as the manager, within the meaning and for the purposes of the Mines and Works Inspection Act 1920 (SA) and the Regulations made thereunder, of any coal mine in South Australia, whether it be an open cut coal mine or an underground coal mine.

38. The relevant occupation for which the applicant may be registered (within the meaning of the MR Act) in Western Australia is that of First Class Mine Manager. Such registration would comprise the issuing of a first class mine manager's certificate by the Board of Examiners under reg 2.21 of the Mines Safety and Inspection Regulations 1995 (WA). Under the Mines Safety and Inspection Act 1994 (WA) and the abovementioned Regulations, the activities authorised to be carried out under a first class mine manager's certificate chiefly comprise acting as the underground manager of a mine (whether coal or metalliferous) or the manager of a quarry or open cut mine (whether coal or metalliferous). Those activities are not substantially the same as the activities authorised to be carried out under the applicant's registration in South Australia, as described in paragraph 37 above. Instead, those activities are substantially broader because they extend to any type of mine, whether coal or metalliferous and whether underground or open cut, whereas the activities authorised to be carried out under the applicant's registration in South Australia are restricted to coal mines (whether underground or open cut) and do not extend to metalliferous mines.

39. Accordingly, it will be necessary, so as to achieve equivalence between the abovementioned occupations in South Australia and Western Australia, to impose a condition on the applicant's registration in Western Australia. That condition will be that the first class mine manager's certificate under the Mines Safety and Inspection Regulations 1995 (WA), to which the applicant is entitled under s20(1) of the MR Act, is to be restricted to coal mines, including underground coal mines as well as open cut coal mines. In the Tribunal's opinion, the imposition of that condition will achieve equivalence between the relevant occupations by ensuring that the activities authorised to be carried out under the applicant's Western Australian registration are "substantially the same" as the activities authorised to be carried out under his South Australian registration, within the meaning of s29(1) of the MR Act.

40. Finally, the Tribunal turns to the submission made by Mr King (for the respondent) that the Tribunal should make a declaration under s31(2) of the MR Act that "the occupation of coal mine manager in South Australia is not equivalent to the occupation of underground coal mine manager in Western Australia". In Re Cleary (above) the Tribunal said (in relation to the making of such a declaration) (at p408):

"(48) The consequences of making a declaration are set out in subss (3), (4) and (5). Clearly the making of such a declaration affects interests other than those of a particular applicant. If any such declaration were to be contemplated by the tribunal then, in my view, it would be incumbent upon the tribunal to seek from the applicant evidence as to the views of others that might be affected. ...

(49) To make such a declaration therefore would be a matter of some gravity. The tribunal would need particularly strong evidence before it could be satisfied that registration in one state should not entitle registered persons to carry on a particular activity or class of activity in the other state.

(50) In particular, strong evidence would be required that any activity or class of activity could reasonably be expected to expose persons in the second state to a real threat to their health or safety. This is strong language. It is not sufficient to raise the possibility of a risk. There is inherent in the use of the words 'real threat' a sense of imminent peril. That danger must arise directly from the fact of registration in the second state. ...

(51) Subsection (4) seems to contemplate an administrative arrangement between the registering authorities and possibly between the ministers in each relevant state to work out a solution if a declaration of non equivalence is made. I am not aware that any such declaration has in fact been made either by the tribunal or by ministers pursuant to s32. The consequences of such a declaration underline the need for a high standard of evidence before any such step is taken."

Having regard to those remarks in the light of the Tribunal's abovementioned findings regarding the applicant's entitlement to registration in Western Australia, it is neither necessary nor appropriate for the Tribunal to make a declaration in the terms proposed by the respondent. In particular, the Tribunal is not satisfied, as required by para (a) of s31(2), that "the activities involved in the (relevant) occupations are not substantially the same (even with the imposition of conditions)". In addition, there is not the kind of "strong evidence" before the Tribunal on the basis of which it might be satisfied as to the matters specified in para (b) of s31(2). There is also no evidence before the Tribunal as to the views of other persons or bodies whose interests would be likely to be affected by the making of such a declaration. Accordingly, the Tribunal refuses to make a declaration under s31(2) of the MR Act in this case.

Conclusion

41. The conclusion of the Tribunal is, therefore, that the applicant is entitled, under s20(1) of the MR Act, to be granted a first class mine manager's certificate by the Board of Examiners under reg 2.21 of the Mines Safety and Inspection Regulations 1995 (WA) subject to the condition (so as to achieve equivalence between the occupation for which he has been registered in South Australia and the occupation for which he is entitled to be registered in Western Australia) that that certificate be restricted to coal mines of any kind, including underground coal mines and open cut coal mines.

Decision

42. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant is entitled to be granted a first class mine manager's certificate by the Board of Examiners under reg 2.21 of the Mines Safety and Inspection Regulations 1995 (WA), subject to the condition that that certificate be restricted to coal mines of any kind, including underground coal mines and open cut coal mines, with effect from 17 January 1998.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member and Dr M C Wood, Member

Signed: Catherine Osborn .....................................................................................

Associate

Date/s of Hearing 18 December 1998 and 5 March 1999

Date of Decision 25 June 1999

Counsel for the Applicant In person

Solicitor for Applicant -

Counsel for the Respondent Mr J O'Sullivan and Mr B King

Solicitor for the Respondent Crown Solicitor's Office