Childs v Psychology Board of Australia - [2013] SADC 117

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CHILDS v PSYCHOLOGY BOARD OF AUSTRALIA
[2013] SADC 117
Judgment of His Honour Judge Gilchrist
27 August 2013
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION
Health Practitioner Regulation National Law (South Australia) Act 2010 s 98; District Court Act (SA) 1991 s 42C; National Health Act (Cth) 1953 s 29(D); Medical Practitioners Act (Qld) 2001 s 111(1); Equal Opportunity Act 1984 s 85A, referred to.
Pond v WorkCover [1999] SASC 362; R v Sir William Refshauge; Director-General of Health for the Commonwealth and Others; ex parte Thomson (1976) 11 ALR 471; Alroe v Medical Board of Queensland [2010] QC 44; Australian Eduction Union v Department of Education and Children's Services [2012] HCA 3; Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; Ex Parte Herman; Re Mathieson (No 1) (1959) 78 WN (NSW) 6; Griggs v Noris Group of Companies (2006) 94 SASR 126, considered.

CHILDS v PSYCHOLOGY BOARD OF AUSTRALIA
[2013] SADC 117

This is an appeal from a decision of the Health Practitioners Tribunal of South Australia.
It concerns the refusal of the Psychology Board of Australia to endorse the registration of the appellant, Dr Gary Childs, in the area of educational and developmental psychology.
The Board is empowered to endorse the registration of a registered psychologist as being qualified to practise in an approved area of practice. Educational and developmental psychology is such an area.
The Board can only grant that endorsement to an applicant who holds an approved accreditation or “another qualification that, in the Board’s opinion, is substantially equivalent to, or based on similar competencies to, an approved qualification.”[1]
[1] S 98 of Sch 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010.
There is no doubt that Dr Childs is a very experienced psychologist who has done much work in the area of educational and developmental psychology. He has conducted research, published papers and collaborated with eminent psychologists in this area. But he does not hold an approved qualification. The issue that the Board had to deal with was whether he holds another qualification that is substantially equivalent to, or based on similar competencies to, an approved qualification.
The Board held that he did not. It formed the view that where the relevant statutory provision that stipulates the criteria necessary for endorsement talks of “qualification” it means some formal qualification. Accordingly, concluding as it did that Dr Childs was essentially relying upon his knowledge and experience in the area, it decided that he did not meet the necessary criteria.
Ultimately the fate of this appeal depends upon whether the Board was correct in its understanding of the meaning of that provision.
The Board
The Board was established pursuant to s 35 of Sch 2 of the Act.
Amongst other things the Board is empowered through s 35(1)(a)-(e) of Sch 2: “to register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession; to decide the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession; to develop or approve standards, codes and guidelines for the health profession, including the approval of accreditation standards developed and submitted to it by an accreditation authority and the development of registration standards for approval by the Ministerial Council; and the development and approval of codes and guidelines that provide guidance to health practitioners registered in the profession.”
It is also empowered “to approve accredited programs of study as providing qualifications for registration or endorsement in the health profession”; and “to oversee the assessment of the knowledge and clinical skills of overseas trained applicants for registration in the health profession whose qualifications are not approved qualifications for the profession, and to determine the suitability of the applicants for registration in Australia.”
In deciding whether or not to grant an application for endorsement the Board is empowered, through s 100 of Sch 2 of the Act, to investigate the applicant by asking an entity for information, seeking verification of information or documents provided, requiring an applicant to provide further information or documents, requiring the applicant to answer questions put by it, or requiring the applicant to undergo a written, oral or practical examination so as to assess the applicant’s ability to practise in the health profession in accordance with the endorsement sought.
A series of appeals / an application for an extension of time
Pursuant to s 199(1)(b) of Sch 2 of the Act a person who has been refused endorsement may appeal that decision to the Health Practitioners Tribunal.
Having had his request for endorsement refused by the Board, Dr Childs exercised that right of appeal. The Tribunal dismissed the appeal.
Pursuant to s 23(1) of the Act an aggrieved party may appeal a decision of the Tribunal to the District Court. That in turn has led to the within appeal.
Section 23(3) of the Act provides that such “[a]n appeal must be instituted within 1 month of the date of the decision appealed against.” The within appeal was not filed within that time. However s 42C of the District Court Act (SA) 1991 gives the Court the power, in its discretion, to extend the time within which to appeal. In exercising that discretion the Court will need to be satisfied that it is in the interests of justice to grant the extension. In Pond v WorkCover [1999] SASC 362 Lander J suggested that as a general proposition four factors are particularly pertinent, they being: the length of the delay, the reason for the delay, whether there is an arguable case on appeal and the prejudice which the respondent might suffer if the extension is granted.
The Tribunal’s decision was handed down on 13 April 2012. At the time Dr Childs was overseas and he did not return to Australia until 18 May 2012. The appeal was filed on 22 June 2012, so the delay was not great. The fate of the appeal turns primarily on issues of statutory construction in respect of new legislation. Dr Childs clearly has an arguable case. The respondent did not suggest that it would be prejudiced by the grant of an extension. In all the circumstances I thought it appropriate to grant the extension of time.
In determining the appeal, consideration must be given to s 42E (1) and (2) (b) of the District Court Act (SA) 1991.
Section 42(1) provides that the “Court must, on an appeal, examine the decision of the original decision maker on the evidence or material before the original decision maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.’ Section 42E(2)(b) provision provides that on an appeal the Court “must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.”
Over an objection as to relevance, I heard evidence from Dr Childs, and from Dr Michael McKay.
Dr Childs told me of his extensive work as a senior lecturer teaching educational psychology, developmental psychology, classroom management, statistics and general psychology to various groups, including prospective teachers.
He then spoke of his increasing participation in the practice of psychology. For example, he described his work in a special education unit for adolescents with significant intellectual disabilities, such as autism. He said that part of his practice required him to assess children that had been referred for possible entry to the unit which in turn might require the preparation of written reports.
These reports provided the referring school with information as to what the child could and could not do there, what their intellectual capacity was, their adaptive skills, their communication skills and general information about the troubles they faced. He said that he was on occasions called back on a case by case basis, to deal with particular problems as they arose.
He told me that in the 1980s he became a colleague of Dr McKay. He said that he was invited to participate with him and with Prof Neale in upgrading and checking the clinical soundness of the Neale analysis, which was a national reading test. This involved him in much practical work in testing children’s skills and analysing results.
He said that he co-authored papers with Dr McKay and that he went on to develop a long-term professional relationship with him.
He described Professor Neale as one of Australia’s leading educational psychologists and that he regarded her as a mentor while he was learning his craft.
He then spoke of his time as senior lecturer in applied psychology at the Flinders University in the early 1990s. There he taught applied psychology to speech pathology students, psychology to post-registered nurses, and special education to students studying masters in special education. He said he coordinated a major course in cognitive psychology.
He spoke of his work contributing to a clinic at the Flinders Medical Centre, where he did routine assessments of children and adults who had language difficulties or hearing loss.
He then described what he called the Tumby Bay Mental Health Project. He had been approached by a general practitioner from Tumby Bay who was concerned at the rate of adult suicide in the west coast and wanted to explore the adoption of a multi-pronged mental health project. This in turn involved Dr Childs undertaking work as an educational psychologist, assessing children and helping them to remain and succeed at school as part of a suicide prevention program.
This work grew and led to him working over the whole of Eyre Peninsula, including working with Aboriginal schools at Yalata and Koonibba.
By 1997 Dr Childs had left university employment altogether and become a full-time practising psychologist.
Over the next ten years he conducted a general practice at the Southern Specialist Centre at Morphett Vale He continued with his work on the Eyre Peninsula. He received a contract from the Education Department to undertake psychological assessments of about 90 children in the Riverland, which he did for a couple of years. He estimated that over this period about two-thirds of his work involved educational psychology.
Dr McKay is a retired psychologist. He has extensive qualifications and has been extensively involved in tertiary institutions and schools of psychology. Amongst other things he was the former head of the School of Psychology at the Australian Catholic University and was involved in the development of clinical psychology courses that included educational psychology. He has collaborated on research projects with Dr Childs and in connection with this case has surveyed his work.
It was plain from Dr McKay’s evidence that he holds Dr Childs in high regard and believes that his extensive experience in combination with his academic qualifications and participation in tertiary institutions makes him well qualified to be recognised as a psychologist worthy of endorsement in this area of practice by the Board.
The parties’ submissions
Counsel took me to various cases in which the word “qualifications” was used in a similar context.
In R v Sir William Refshauge, Director-General of Health for the Commonwealth and Others; ex parte Thomson (1976) 11 ALR 471 the High Court gave consideration to the proper construction of s 29D (1) of the National Health Act 1953. That provision empowered the Director–General to refer to a Specialist Recognition Advisory Committee:
… the question whether a particular medical practitioner should, having regard to his qualifications, experience and standing in the medical profession and the nature of his practice, be recognised for the purposes of [that] Act as a specialist, or consultant physician, in a particular speciality.[2]
[2] R v Sir William Refshauge, Director-General of Health for the Commonwealth and Others; ex parte Thomson (1976) 11 ALR 471.
Dr Thomson, a qualified medical practitioner, had undertaken a considerable amount of surgical work, although he did not hold any higher degree in surgery nor was he a Fellow of any of the Colleges of Surgery. He sought recognition as a specialist in surgery for the purposes of the National Health Act 1953. The Director–General referred that question to the Committee, which recommended that he not be recognised and the Director–General acted upon that recommendation. This led to proceedings in the High Court. It was submitted that the Committee had misconstrued the word “qualifications” by erroneously confining it to “academic qualifications”. It was submitted that the word was broad enough to include a consideration of the applicant doctor’s actual skill and competence.
The High Court rejected these submissions. Gibbs J recognised that the word “qualifications” could have a wider meaning than academic qualifications. However, he said that the meaning had to depend on the context provided by the statute and that if it were given this wider meaning it would not have been necessary for the subsection to include as one of the criteria “experience”. He thought that this suggested a more narrow meaning and was fortified in coming to that view by a consideration of the nature of the Committee and the function that it was to perform. He noted that the committee was not an examining body. He said:
It would seem unlikely that it was intended to cast upon a Committee …the task of considering directly the actual skill and competence of each applicant for recognition.[3]
[3] R v Sir William Refshauge, Director-General of Health for the Commonwealth and Others; ex parte Thomson (1976) 11 ALR 471 at 476.
He noted the “considerable practical difficulties in some cases in assessing and pronouncing upon the individual ability of a particular applicant.”
This led him to conclude that the word “qualifications” “means qualifications in the nature of a degree, diploma, fellowship or membership granted by some recognised body and does not include mere personal skill and competence.”
The word “qualification” used in a similar context was the subject of consideration by the Supreme Court of Queensland in Alroe v Medical Board of Queensland [2010] QCA 44. Section 111(1)(b)(ii) of the Medical Practitioners Registration Act 2001 (Qld) enabled an applicant eligibility “for specialist registration if the applicant ha[d] a qualification, in the speciality, [that] the Medical Board consider[ed was] substantially equivalent to, or based on similar competencies to that required for, a current qualification in the specialty.”
Dr Alroe was a psychiatrist. He had been found guilty of unsatisfactory professional conduct and his registration cancelled. He subsequently applied for general and specialist re-registration. His application for general re-registration was successful, but his application for specialist re-registration failed. At the time of his application for re-registration as a specialist Dr Alroe was not a Fellow of the Royal Australian and New Zealand College of Psychiatrists and he did not posses any other formal qualification from any other organisation. It was for these reasons that his application failed, notwithstanding the fact that he had previously passed the fellowship examinations and had 20 years practical experience as a psychiatrist.
An argument similar to that put in Refshauge[4] was put to the Court of Appeal. It was rejected. Muir JA stated that:
The concept of substantial equivalence calls for a comparison of like with like.[5]
[4] (1976) 11 ALR 471.
[5] Alroe v Medical Board of Queensland [2010] QCA 44 at [14].
He said that if the Legislature had intended a wider meaning the provision would have been worded differently.
Mr Collett contended that I could take two things from Refshauge.[6] First, the word “qualification” can have the wide meaning that he argued for. Second, that a factor that was pivotal in the High Court rejecting that meaning was the fact that the Committee was not an examining body and that was not the case here.
[6] (1976) 11 ALR 471.
He took me to s 100 of the Sch 2 of the Act and submitted that this clearly contemplates the Board investigating and examining the competencies of an applicant.
He said that in Alroe[7] it was significant that the word “qualification” was followed by the words “and experience”. He said that because “and experience” was specifically mentioned in the provision under consideration there, it made sense that it had no place to play in defining the word “qualification”.
[7] [2010] QCA 44.
He submitted that to give the word “qualification” a narrow meaning would be contrary to the objects of the Act, because it would place a significant fetter of the Board’s capacity to endorse applicants. Unless the applicant possessed an approved qualification or something so close to it, it was almost the same thing, the application could not be considered.
Mr Collett further contended that regard should be had to the age discrimination principles enshrined in legislation such s s85A of the Equal Opportunity Act 1984. It was submitted that because the approved qualifications were of recent origin, older persons, if they had to rely upon formal qualifications for consideration (which was effectively impossible), would effectively be denied endorsement because of their age and that such a construction should be avoided.
Finally Mr Collett submitted that I should approach my consideration of this matter with s 42E(2)(b) of the District Court Act (SA) 1991 in mind. As I understand the argument it is contended that to reflect the objects of the Act, which amongst other things stipulate that “the scheme is to operate in a transparent, accountable, efficient, effective and fair way”, there is all the more reason for the Court to adopt a purposive approach to the construction of the Act so as to ensure that suitably knowledgeable and experienced persons, such as Dr Childs, should receive endorsement.
Analysis
Having heard from Dr Childs and Dr McKay and having read references from others I am in no doubt that Dr Childs is a highly regarded psychologist with considerable expertise in the area of educational and developmental psychology. He has the qualities that one would expect of a psychologist endorsed in the area of educational and developmental psychology. It might be thought that if his circumstances had been put to the legislature it probably would agree. But that is not how the task of statutory construction can be approached. As The High Court pointed out in Australian Education Union v Department of Education and Children's Services [2012] HCA 3 at [28]:
In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.
What is required is a careful consideration of “the text, context and evident purpose” of the provision: Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 at [109].
There are a number of features of the text and context that suggest that the position taken by the Board and the Tribunal was correct.
As Mr Stevens submitted, the fact that the word “qualification” is preceded by the word “holds” is instructive. He said:
One does not speak of somebody holding a qualification due to unassessed and unexamined training on the job, or due to lecturing that the person has done, or due to interaction that the person has had with clients or peers. The very use of the word “holds”, in respect of not only the approved qualification, but also another qualification, is a very strong indication that we're talking here about academic formal qualifications.[8]
[8] T 140.

So too is the fact that the provision contemplates a comparison with an approved qualification. As Mr Stevens said:
The first qualification, of course, is an approved qualification which is a formal qualification. If one is going to compare apples with apples the starting point is that the qualification that’s going to be compared with the approved qualification is another qualification that is a formal or academic one.[9]
[9] T 141.
These factors point to the word “qualification” meaning something formal.
Moreover, had the Legislature intended the meaning suggested on behalf of Dr Childs it might be thought surprising that different language was not used. Mr Stevens suggested that the provision might have been expected to read as follows:
(a) holds an approved qualification relevant to the endorsement,
or
(b) has other experience, training, qualifications or competencies that in the board's opinion are substantially equivalent to or based on similar competences to an approved qualification.[10]
[10] T 141.
I think there is force in this submission.
Other provisions of the Act point to the same conclusion. Section 66(2) deals with limited registrations and it speaks of “completed a qualification”. This points to a qualification being something that has been completed, that is, a formal course of study or training. It might be expected that the meaning to be given to the word “qualification” would be consistent throughout the Act.
The considerable practical difficulties in assessing and pronouncing upon the individual ability of a particular applicant that was a factor in Refshauge[11] are also present here. In my view the powers given to the Board do not contemplate the Board acting as an examining body that would test all applicants for proficiencies. I agree with Mr Stevens’ submission that its primary focus is directed towards making comparisons of relevant formal qualifications through the provision of information and documents.
[11] (1976) 11 ALR 471.
If there was genuine doubt some consideration of Age Discrimination principles might tip the balance. But in my view there is no doubt. Moreover, as Mr Stevens submitted, there were transitional arrangements that were in place that Dr Childs could have, but did not take advantage of. In other words, to the extent that the construction I favour could disadvantage the aged, that potentiality was catered for by the transitional arrangements and provides no warrant for a strained interpretation of the Act.
There are circumstances where the use of language such as “equity, good conscience and the substantial merits of the case” as appears in s 42E(2)(b) of the District Court Act (SA) 1991 “may indicate that the decision-maker is free from any obligation to apply rules of law”. See: Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 30 per Gleeson CJ and Handley JA. Ultimately it depends upon the context in which the words are used. In other contexts it has been held that such a provision does not authorise the decision-maker “to depart from established principles of law nor do they give it power to dispense justice otherwise than according to law.” Ex Parte Herman; Re Mathieson (No1) (1959) 78 WN (NSW) 6 at [9] per Kinsella J.
Given that the District Court is a court of record that subject to some qualifications possesses the same jurisdiction in civil and criminal matters as the Supreme Court it might be expected that in all cases before it, notwithstanding the breadth of s 42E(2)(b), it would determine matters before it according to law. See Griggs v Noris Group of Companies [2006] SASC 23; (2006) 94 SASR 126.
In my view the proper construction of the word “qualification” as it appears in to s 98 of Sch 2 of the Act is that it means a qualification in the nature of a degree, diploma, fellowship or membership granted by some recognised body and does not include personal skill and competence. In my view I cannot invoke s 42E(2)(b) of the District Court Act (SA)1991 to come to some contrary conclusion.
I understood the appellant’s counsel to effectively concede that if for the purposes of granting an endorsement regard could not be had to Dr Childs’ personal skill and competence his circumstances did not satisfy the pre-requisites for endorsement. It follows that the appeal must be dismissed.