MEDICAL RADIATION TECHNOLOGISTS REGISTRATION BOARD OF WA and MEDICAL RADIATION PRACTITIONERS BOARD OF VICTORIA

[2010] AATA 687

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 687

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1619

GENERAL ADMINISTRATIVE DIVISION		)
Re		MEDICAL RADIATION TECHNOLOGISTS REGISTRATION BOARD OF WA

Applicant

And MEDICAL RADIATION PRACTITIONERS BOARD OF VICTORIA

Respondent

DECISION

Tribunal Mr S Penglis, Senior Member

Date8 September 2010

PlacePerth

Decision Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision of the respondent dated 21 January 2010

..(sgd) Mr S Penglis...........

Senior Member

CATCHWORDS

Mutual recognition - licence issued under the Radiation Control Act 1990 (NSW) to use radiation apparatus for medical diagnostic radiography is “for an occupation” within the meaning of section 17(1) of the Mutual Recognition Act

LEGISLATION

Mutual Recognition Act 1992 (Cth) ss 4 and 17(1)

Radiation Control Act 1990 (NSW) ss 3 and 6

CASES

Medical of Queensland v Renton [2006] FCA 947
Rowe and New South Wales Police Service (1997) 47 ALD 442
Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123
Wearne and New South Wales Police Services (1994) 34 ALD 315

REASONS FOR DECISION

8 September 2010 Mr S Penglis, Senior Member       

Background

1.      On 27 October 2009, Mr Yadav Dhungel (the practitioner) was granted a licence pursuant to the Radiation Control Act 1990 (NSW) (NSW Act).

2.      The licence was endorsed as follows:

“1A14 Use radiation apparatus for medical diagnostic radiography – Medical diagnostic radiographers”.

3.      The Licence condition included the following:

“…the licensee must only use:

1.radiation apparatus for the purpose of undertaking radiological examinations.”.

4.      The practitioner subsequently applied to the respondent for registration as a radiographer in Victoria in accordance with the Mutual Recognition Act 1992 (MR Act). 

5. In his accompanying Statutory Declaration the practitioner stated that he was registered for the equivalent occupation in New South Wales and referred to the licence issued under the NSW Act.

6.      On 21 January 2010, pursuant to section 20 of the MR Act, the respondent registered the practitioner as a medical radiation practitioner (under the category of radiography) under the Health Professions Registration Act 2005 (Vic) (HPR Act).

7.      It is accepted by the applicant that the work performed in New South Wales by a “medical diagnostic radiographer” is substantially equivalent to the work performed in Victoria by a “medical radiation practitioner”.  I will therefore use the one title in these Reasons for Decision, namely “medical diagnostic radiographer”

8.      On 21 April 2010, pursuant to section 34 of the MR Act, the applicant applied to have the Tribunal that decision (the reviewable decision).

9. On 17 June 2010, pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal ordered that the operation and implementation of the reviewable decision be stayed pending the Tribunal’s final determination of the application for review.

The MR Act

10.Section 17 (1) of the MR Act provides as follows:

“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.”

11. By section 4 of the MR Act, the word “registration” includes “the licensing … of a person required by or under legislation for carrying on an occupation”.  

Question for determination

12. The sole question for determination is whether the licence issued to the practitioner pursuant to the NSW Act constitutes the registration of a person “for an occupation’ within the meaning of the MR Act.

13.     It should be noted that, as he is a person who may be affected by these proceedings, the practitioner was given notice of the proceedings and at the same time asked whether he wished to be heard.

14.     The practitioner advised the Tribunal that he did not wish to be heard in the proceedings.

Parties’ Contentions

15.     The applicant’s principal contention is that the practitioner is not and was not registered for any occupation in New South Wales and so the jurisdiction of the respondent under the MR Act was not enlivened.

16.     In essence, the applicant contends that the licence issued to the practitioner does no more than permit him to use radioactive substances and does not amount to registration of the practitioner for the carrying on of the occupation of a medical diagnostic radiographer.

17. On behalf of the respondent it is submitted that when one has regard to the NSW Act and the manner in which the Act is in fact administered by the relevant authority (including the licence terms), the licence issued to the practitioner is a registration for him to carry on in that State the occupation of a medical diagnostic radiographer.

The NSW Act

18.The long title of the NSW Act is as follows:

“An Act to make provision for the regulation and control of the sale, use, keeping and disposal of radioactive substances and radiation apparatus…and for other purposes”.

19.Section 3 of the NSW Act provides as follows:

“The object of this Act is to secure the protection of persons and the environment from exposure to harmful ionising and non-ionising radiation to the maximum extent that is reasonably practicable, taking into account social and economic factors and recognising the need for the use of radiation for beneficial purposes”.

20.Section 6 of the NSW Act provides as follows:

“(1)This section applies to the following:

(a)all radioactive substances,

(b)all ionising radiation apparatus,

(c)non-ionising radiation apparatus prescribed as apparatus to which this section applies.

(2)A person must not possess, use, sell or give away anything to which this section applies unless the person is the holder of a licence under this section and does so in compliance with any conditions to which the licence is subject.  Maximum penalty: 1,500 penalty units in the case of a corporation or 250 penalty units or imprisonment for 2 years, or both, in any other case.

(3)A person must not sell or give away anything to which this section applies except to a person who holds a licence under this section authorising the possession, use or sale of that thing.  Maximum penalty: 1,500 penalty units in the case of a corporation or 250 penalty units or imprisonment for 2 years, or both, in any other case.

(4)The Authority may, on application in the approved form and payment of the prescribed fee, grant a licence.

(5)The Authority is not to grant a licence authorising a person to use anything to which this section applies unless it is satisfied:

(a)that the applicant is a natural person and is a fit and proper person to hold the licence, and

(b)that the applicant has appropriate knowledge of the principles and practices of radiation safety and protection applicable to the activities proposed to be carried on by the applicant pursuant to the licence, and

(c)that the applicant meets any relevant requirements for licensing for use of the substance or apparatus set out in a document forming part of the National Directory and adopted by the Authority under section 37.

(6)       A licence is subject to such conditions as may be imposed by the Authority.”

21. The NSW Act is administered by the Environment Protection Authority (Authority). That is the “Authority” referred to in the Act and is part of the Department of Environment, Climate Change and Water.

22.     During the hearing of this application, the Tribunal received into evidence certain material from the website of the Department, which relevantly provided as follows:

“Licences to use

Licences to use radiation apparatus or radioactive substances can only be issued to individuals ('natural persons') not companies.

'To use' means to operate, have in possession for use, handle or manipulate or use in the course of manufacture of radiation apparatus and radioactive substances.

This type of licence may also allow the purchase of radiation apparatus and radioactive substances.

Occupations that may require a licence to use include:

Chiropractors

Dentists

General medical practitioners (remote operators)

Medical specialists using fluoroscopy

Nuclear medicine physicians

Nurses (remote operators)

Radiographers (medical diagnostic or therapy)

Radiographers (industrial)

Scientists

Service engineers

Technologists

Tertiary lecturers

Veterinarians”

“Licence conditions

A radiation licence to use may have one or more conditions attached to it. These conditions are determined by the work proposed under the licence, as well as the qualifications and experience applicants must have to hold the licence. Licence conditions form part of the licence and must be adhered to by the licensee.

Licences have been categorised into commonly performed types of work such as analytical, dental, medical radiation therapy, and scientific and research. Within each broad category, conditions have been applied to specific work and given a unique number.

The letters 'IA' prefix all licence conditions that relate to radiation apparatus, while an 'S' is used for licence conditions relating to radioactive substances and devices containing radioactive substances.

Applicants seeking a licence to use radiation apparatus or radioactive substances must have the knowledge and experience necessary for the work they wish to undertake. Most licence conditions have a number of knowledge/experience 'criteria' which need to be met by prospective licensees before the condition can be granted…”

“Licensing criteria

Applicants seeking a licence to use radiation apparatus or radioactive substances must have the knowledge and experience necessary for the work they wish to undertake. Most licence conditions have a number of knowledge/experience 'criteria' which need to be met by prospective licensees before the condition can be granted. These are listed below for each licence condition, which have been grouped into common work categories.

….

Common work categories

Analytical
Auditing and quality assurance
Bone mineral analysis and body composition analysis
Chiropractic
Dental
Educational/demonstration
Industrial and other related
Installation/servicing
Medical diagnosis
Medical - Nuclear medicine
Medical - Physics
Medical - Radiography, radiology and fluoroscopy
Medical - Radiation therapy
Radiopharmacy
Scientific and research
Veterinary”

“Medical - Radiography, radiology and fluoroscopy

*IA4: Use radiation apparatus for diagnostic radiology - Radiologists

*IA14: Use radiation apparatus for medical diagnostic radiography - Medical diagnostic radiographers

*IA14R: Use radiation apparatus for medical diagnostic radiography (restricted) - General medical practitioners or registered nurses

*IA14T: Use low risk medical diagnostic x-ray apparatus under transitional arrangements

*IA14Y: Use radiation apparatus for medical diagnostic radiography (PDY) - Medical diagnostic radiographers

*IA22: Use radiation apparatus for medical fluoroscopy - Specialists other than radiologists

IA22S: Use radiation apparatus for medical fluoroscopy - Medical practitioners working in a specialised area not recognised by Medicare Australia

………

*IA14: Use radiation apparatus for medical diagnostic radiography - Medical diagnostic radiographers

Must provide evidence of attainment of one of the following:

AIR Diploma Diagnostic Radiography (AIR Dip Diag Rad)

AIR Statement of Accreditation (AIR Stat Accred) (issued after successful completion of PDY)

AIR Certificate of Competence (AIR Cert Comp) (Conjoint Board)

Conjoint Board Certificate - Diploma of Qualification

TAFE (NSW) - Associate Diploma Diagnostic Medical Radiography (1986 or later).”

“Veterinary

*IA23: Use radiation apparatus for veterinary purposes

*IA23S: Use radiation apparatus for veterinary purposes under supervision - Assistants

*S23: Use radioactive substances for veterinary purposes

*IA23: Use radiation apparatus for veterinary purposes

Note: An applicant receiving provisional registration for veterinary science for equine practice from the NSW Veterinary Surgeon's Board will only be granted a 12 month non-renewable licence.

Must provide evidence of current registration with the Board of Veterinary Surgeons NSW (Veterinary Surgeons Act 1986).”

Cases

23.     In Medical Board of Queensland v Renton [2006] FCA 947, Kiefel J, then of the Federal Court of Australia, said as follows (at [27], [28] and [33]):

“[27] As French J pointed out in Board of Examiners v Lawrence at [64]–[65], it is registration for an occupation in the State of original qualification that is the subject of recognition under the Mutual Recognition Act. The question which must be asked when a person invokes the provisions of that Act is — what is the occupation for which that person is registered in the first State? That question is to be answered by reference to the terms of the registration in the first State informed by, or read with, the statutory provisions under which registration is effected. The objective of mutual recognition is to allow the legal entitlement to carry on an occupation in one State to be recognised and the like legal entitlement for an equivalent occupation conferred in the second State.

[28] The objective of the mutual recognition principle does not prevent a conclusion that there is no equivalent occupation, as French J recognises (at [67]).”

…….

[33] ….. The mutual recognition principle has no operation where one State does not provide for the registration of an occupation or profession. …”

24.     In Rowe and New South Wales Police Service (1997) 47 ALD 442 at [45] and [46], Deputy President Forgie noted that a permit to lawfully enable a person to possess and use the necessary ‘tools of the occupation’ or ‘tools of trade” does not equate with the registration for the occupation itself or the registration for carrying on the occupation.

25.     Other cases which have considered whether or not a particular occupation exists in a State include Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123 and Wearne and New South Wales Police Services (1994) 34 ALD 315.

Analysis and Findings  

26. Taken in isolation, the NSW Act would appear to do no more than authorise a licensed person to do that which would otherwise be illegal to do in that State and does not extend to the registration of the person for an occupation. So much was effectively conceded by counsel for the respondent.

27. However, as accepted by counsel for the applicant, the Tribunal is entitled to have regard to how the NSW Act is in fact administered by the Authority. When that is done, it is clear that the Authority administers the NSW Act so as to licence persons to not only use radioactive substances which it would be illegal for them to use without a licence, but to do so in respect of the specific “work they wish to undertake” by reference to what the Authority describes as “common work categories”.

28.     For each of the “common work categories”, the Authority has prescribed specific requirements that must be satisfied to qualify for a licence. Those requirements vary from category to category and are specific to each category.

29.     As has been noted, the practitioner’s licence is endorsed IA14: “use radiation apparatus for medical diagnostic radiography - medical diagnostic radiographers” and is one of seven discrete categories under the heading “Medical – radiography, radiology and fluoroscopy.”

30.     As set out above, the qualifications which a person must possess to qualify for such a licence are very specific and apply only to this specific work category.

31. The Authority would appear to be able to lawfully do this as the NSW Act, by section 6(5), provides that the Authority must not grant a licence unless satisfied of various things, including that the applicant is a fit and proper person to hold a licence and has appropriate knowledge of the principles and practices of radiation safety and protection applicable to the activities proposed to be carried on by the applicant pursuant to the licence.

32. I am therefore satisfied that the NSW Act, as administered in fact by the Authority, not only licences a person to use one of the tools used by a medical diagnostic radiographer, but constitutes the licensing of a person (in this case the practitioner) required under legislation for carrying on in New South Wales the occupation of a medical diagnostic radiographer and thus constitutes registration in New South Wales for that occupation within the meaning of the MR Act.

33. It was submitted on behalf of the applicant that the Tribunal should not reach that conclusion because by taking as an example the occupation of veterinary surgeon, it is apparent that the NSW Act, even as administered by the Authority, does not constitute the registration of a person in New South Wales to carry on the occupation of a veterinary surgeon as it is acknowledged by the relevant work category that a licence will only issue if the person is already registered with the Board of Veterinary Surgeons pursuant to the Veterinary Surgeons Act 1986.

34. The Tribunal accepts that in the case of veterinary surgeons (and there are numerous other instances where the NSW Act and the manner in which it is administered overlaps with occupations which are subject of specific legislation covering the occupations to which it relates, e.g. dentists), what is licensed under the NSW Act is merely the use of a tool used in an occupation, with the occupation itself being regulated in the State by other legislation. That, however, does not detract from the conclusion that in respect of occupations covered by one of the “common work categories” for which there is no other legislation in the State by which they are regulated, the NSW Act, as administered by the Authority, provides such a system of registration.

35. Also, the fact that, in Victoria, in addition to the HPR Act, there is the Radiation Act 2005 (Vic) which is in similar terms to the NSW Act, does not assist the applicant. The fact that, in Victoria, the occupation of medical diagnostic radiographer is regulated by legislation other than the Victorian equivalent of the NSW Act is not to the point: the question is whether the occupation is regulated under legislation in New South Wales. This turns on the relevant legislation in New South Wales and how it is administered. It is not determined by looking at whether and if so how it is regulated in other States

36.     The Tribunal therefore finds that, having regard to the evidence received, the proposition urged upon the Tribunal by and on behalf of the applicant, namely to conclude that the occupation of medical radiation technologist in New South Wales is one which is not the subject of any system of registration under legislation, must be rejected.

Result

37.     It follows that the reviewable decision is to be affirmed.

38.     For the sake of completeness I note that I do not consider it necessary to formally deal with the stay which was previously granted by the Tribunal as, given its terms, the stay will not continue to operate after this decision is delivered.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member

Signed:  (sgd) T Freeman.................
  Associate

Date/s of Hearing  31 August 2010
Date of Decision  8 September 2010
Counsel for the Applicant         Mr Jackson
Solicitor for the Applicant          Tottle Partners

Counsel for the Respondent     Mr Horan
Solicitor for the Respondent     Victorian Government Solicitor