Kimber and Pharmacy Board of the Northern Territory

[2004] AATA 741

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 741

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/967

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MICHAEL BROWNING KIMBER

Applicant

And PHARMACY BOARD OF THE NORTHERN TERRITORY

Respondent

DECISION

Tribunal Deputy President Don Muller

Date14 July 2004  

PlaceBrisbane

Decision

The Tribunal affirms the decision of the Pharmacy Board of the Northern Territory to grant to Michael Browning Kimber a Certificate of Registration restricted to the following activities:

1.  Study or train at the post graduate level;

2.  Teach;

3.  Engage in research;  and

4.  Give clinical demonstrations.

There is no order for costs.

..................SIGNED............................

D.W. MULLER
  DEPUTY PRESIDENT

CATCHWORDS

MUTUAL RECOGNITION – Pharmacy registration – equivalent occupation – not registered to practice as a pharmacist in Queensland – not entitled to registration to practice as pharmacist in Northern Territory – decision to grant qualified registration affirmed

Mutual Recognition (Northern Territory) Act 1992: s.17, 19, 20(5), 21, 23, 24, 25, 26, 27, 35

Pharmacists Registration Act 2001 (Queensland) s.104

Pharmacy Act (Northern Territory)

Administrative Appeals Tribunal Act 1975: s34B

REASONS FOR DECISION

Deputy President Don Muller        

1.      Michael Browning Kimber, the Applicant, sought to be registered in the Northern Territory to practice as a pharmacist.  Relevant to this review, he sought registration in the Northern Territory on the basis that he was registered as a pharmacist in Queensland, and that therefore he was entitled to be registered in the Northern Territory pursuant to the provisions of the Mutual Recognition (Northern Territory) Act 1992 (the NT MR Act).

2.      The Pharmacy Board of the Northern Territory (the NT Board) initially rejected outright Mr. Kimber’s application, but subsequently granted a qualified registration which allowed him to be involved in a limited number of pharmaceutical related activities but which prevented him from practising as a pharmacist in the Northern Territory.

3.      Mr. Kimber seeks a review of the NT Board’s decision.

4. The parties both consented in writing to have this matter heard and determined in their absence pursuant to the provisions of section 34B of the Administrative Appeals Tribunal Act 1975.  The Tribunal takes the view that the issues for determination can be adequately determined in the absence of the parties.

5.      Based on the material placed before the Tribunal, I make the following findings:

(a)During the period 1 July 2003 to 30 June 2004, Michael Browning Kimber, the Applicant, was the holder of a “Certificate of Special Purpose Registration – Study/Train”, granted by the Pharmacists Board of Queensland (The Queensland Board) pursuant to section 104 of the provisions of the Pharmacists Registration Act 2001 (Queensland) (the Qld Act).

(b)Special purpose registration in Queensland entitled Mr. Kimber to undertake one or more of the following activities relating to the profession in Queensland:

1.  Study or train at the post graduate level;

2.  Teach;

3.  Engage in research;  and

4.  Give clinical demonstrations.

(c)Special purpose registration in Queensland does not entitle the holder to practice pharmacy in Queensland.  However, the holder can use the title “pharmacist” without running the risk of prosecution pursuant to section 125 of the Qld Act.

(d)On 14 July 2003, Mr. Kimber applied to the Pharmacy Board of the Northern Territory (the N.T. Board) for registration as a pharmacist pursuant to section 19 of the Mutual Recognition (Northern Territory) Act 1992 (the NT MR Act), which provides:

“19.  Notification to local registration authority

(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.“

(e)In his application to the NT Board on 14 July 2003, Mr. Kimber said:

“I have attached a printout from the Pharmacy Register of Queensland with my registration details. There are no conditions imposed by the Pharmacists Board of Queensland on my category of registration.

I am currently a PhD candidate in Pharmacy at James Cook University School of Pharmacy. I am also a visiting lecturer at the school.  I lecture in Drug Registration and Pharmaceutics subjects.

As part of my PhD, I will be undertaking some of my research in the Northern Territory and have been offered a locum pharmacist position at the Tiwi Health Board in August 2003. This will greatly benefit my research, as well as allow me to assist the Tiwi Health Board with locum pharmacist duties.

My registration in Queensland is classified as Special Purpose and includes authority to allow me to teach pharmacy subjects, conduct research and give clinical demonstrations.

I am a Member of the Australian Pharmaceutical Society and a member of the Pharmaceutical Science Committee of ADEC. I am also a former member of the Therapeutic Goods Committee (TGC), appointed as the expert in pharmaceutical manufacturing.

I qualified as a pharmacist in South Africa in 1969 and have been an Australian resident since 1981 and an Australian citizen since 1985.

I respectfully request that I be registered as a pharmacist in the NT to enable me to continue with my PhD research and work as a locum pharmacist as required.”

(f)On 3 September 2003 the NT Board rejected Mr. Kimber’s application to be registered.  The NT Board communicated its decision by letter which contained the following:

“I write in reference to your mutual recognition application for registration as a pharmacist in the Northern Territory.

..

The Board determined to refuse your application, pursuant to section 23(2) of the Mutual Recognition (Northern Territory) Act 1992.

The Board was of the opinion that your special Purpose Registration Study/Train which does not allow you to practise as a pharmacist, did not entitle you to apply under Mutual Recognition as there was no equivalence of occupation.”

(g)Mr. Kimber wrote to the NT Board on 10 September 2003 requesting a reconsideration of the decision not to register him in the Northern Territory.

(h)On 9 October 2003 the NT Board wrote to Mr. Kimber that it had reconsidered the application on 3 October 2003 and the Board had reaffirmed the original decision to refuse the application on the basis of section 23(2) of the NT MR Act.

(i)On 14 October 2003 Mr. Kimber wrote the following letter to the NT Board:

“I regret your decision since I believe that I can provide a significant service to the people of the Northern Territory.

I would respectfully draw to the Board’s attention section 21 of the Mutual Recognition (Northern Territory) Act 1992, with special reference to section 21(4).

My application was lodged on the 14^th July 2003.  On two separate occasions I telephoned the Board and was told that my registration was approved and was only waiting for signature by the Chair and that I was free to practise in the Northern Territory.

The initial letter of rejection of my application by the Board was dated the 3^rd September 2003 and is therefore a clear violation of section 21(4). No action was taken by the Board under the provisions of section 21(3) to postpone their decision.

I would therefore respectfully request that the Board complies with the provisions of section 21(4) and register me immediately.

….”

(j)On 21 October 2003 the NT Board granted a restricted registration pursuant to section 20 of the NT MR Act in the following terms:

“Members have recognised the provisions of the Mutual Recognition (Northern Territory) Act 1992 and have determined to issue you with the same level of registration in the Northern Territory as was granted to you by the Pharmacists Board of Queensland.

Your registration in the Northern Territory therefore entitles you to the following:

1.  study or train at the post graduate level;

2.  teach;

3.  engage in research; and

4.  give demonstrations.

Your registration does not entitle you to practise pharmacy, eg provide pharmacy services directly to the public including dispensing of prescriptions, provision of pharmaceutical advice or supervision of or advice to other staff providing these services, however you can use the title ‘pharmacist’.

…

We are sure you would appreciate that your Special Purpose Registration that was granted by the Pharmacists Board of Queensland, was an exceptional type of registration.  In determining your eligibility for registration, the Board must always have regard to the protection of the public and the public interest.  Because you have not practised as a pharmacist for many years and you hold a primary pharmacy qualification that is not recognised in Australia, the Board determined it was not in the best interest of the public to register you without restrictions as a pharmacist.”

(k)Mr. Kimber applied on 17 November 2003, to this Tribunal for review of the decision dated 21 October 2003 pursuant to section 34 of the NT MR Act.

6.      The “mutual recognition principle” is defined in section 17 of the NT MR Act.

“17.     Entitlement to carry on occupation

(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.”

7. Section 20 of the NT MR Act provides that 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 (s.20(1)).

8. The local registration authority may impose conditions on registration. Subsection 20(5) of the NT MR Act provides:

“(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.”

9. Section 21 of the NT MR Act sets out the action that must be taken by the local authority following the receipt of a valid notice under section 19 of the Act:

“21.  Action following notice

(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.”

10. Refusal of registration and notification are covered in ss.23 and 24 of the NT MR Act, the relevant parts of which are:

“23.  Refusal of registration

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

(a)       ….

(b)       …

(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.       Notification of decision

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.”

11. Division 3 of the NT MR Act sets out the provisions relating to “Interim Arrangements” pending the decision of the NT Board.  The subsections relevant to this review are:

“25.     Deemed registration

(1)A person who lodges a notice under section 19 with a local registration authority of a State is, pending the grant or refusal of registration, taken to be registered as provided in section 20.

(2)Such registration is called “deemed registration” in this Act.

(3)Deemed registration in one State does not of itself provide a basis for registration in another State.

26.      Duration of deemed registration

(1)A person’s deemed registration in the second State continues until it is cancelled or suspended or otherwise ceases in accordance with this Part.

(2)A person’s deemed registration in the second State ceases if the person becomes substantively registered in the State in connection with the occupation concerned.

(3)A person’s deemed registration in the second State ceases if the local registration authority of the State refuses to grant registration, subject to any determination of the Tribunal.

27.      Activities under deemed registration

(1)A person who has deemed registration in the second State may carry on the occupation in the second State as if the deemed registration were substantive registration in the second State.

(2)However, the person may do so only:

(a)within the limits conferred by the person’s substantive registration in the first State;  and

(b)within the limits conferred by the person’s deemed registration in the second State;  and

(c)subject to any conditions or undertakings applying to the person’s registration in the first State, unless waived by the local registration authority of the second State under this section;  and

(d)subject to any conditions applying to the person’s deemed registration.

12. The above sections provide that during the interim arrangements period Mr. Kimber was still subject to the same limits in the Northern Territory as he was in Queensland. Section 21 of the NT MR Act did not allow for Mr. Kimber to be immediately entitled to unrestricted registration as a pharmacist at the expiry of one month after his application.

13.     There is no specific provision in the Pharmacy Act (Northern Territory) to allow for qualified registration in the Northern Territory.  It seems that a person is either registered to practice as a pharmacist, or not so registered.

14. It is clear that Mr. Kimber was not registered to practice as a pharmacist in Queensland and therefore he cannot avail himself of the provisions of the NT MR Act to be registered to practice as a pharmacist in the Northern Territory. The NT Board was entitled to reject his application for registration to practice as a pharmacist.

15. Mr. Kimber has also sought to put his qualifications before the Tribunal with the suggestion that the Tribunal assess and accept those qualifications and direct the NT Board to register him as a pharmacist without restrictions imposed on his registration. The Tribunal has no jurisdiction to make such a decision. The Tribunal is limited to reviewing the matter under the NT MR Act. Whether or not the NT Board accepts Mr. Kimber’s application for registration based on his qualifications is a matter for the NT Board, subject to an appeal to the Northern Territory Supreme Court.

16.     The Tribunal affirms the decision of the Northern Territory Pharmacy Board.

17. The Respondent has sought costs pursuant to s.35 of the NT MR Act which provides for the order of costs against a party who has “acted unreasonably”.  The Tribunal considers that Mr. Kimber’s application was doomed to failure.  However, he has been acting on his own behalf.  I will give him the benefit of the doubt and find that he did not act unreasonably.  I also take into account that the matter was heard on the papers.  There will be no order for costs.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
C. O’Donovan, Associate

Matter heard on the Papers     
Date of Decision  14 July 2004
Applicant  Mr. Kimber, himself
Solicitor for the Respondent     Cridlands Lawyers