Pardo v Australian Health Practitioner Regulation Agency
[2016] TASSC 31
•29 June 2016
[2016] TASSC 31
COURT: SUPREME COURT OF TASMANIA
CITATION: Pardo v Australian Health Practitioner Regulation Agency [2016] TASSC 31
PARTIES: PARDO, Nadira (Professor)
v
AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY
PSYCHOLOGY BOARD OF AUSTRALIA
REGIONAL BOARD OF TASMANIA, VICTORIA AND ACT
PSYCHOLOGY BOARDS OF WA AND SA
FILE NO: 2765/2015
DELIVERED ON: 29 June 2016
DELIVERED AT: Hobart
HEARING DATES: 9 and 15 June 2016
JUDGMENT OF: Tennent J
CATCHWORDS:
Administrative Law – Judicial review – Powers of courts under judicial review legislation – Stay of proceedings and interlocutory relief – Application to summarily dismiss application to review – Failure by applicant for review to identify in her application any specific decision, conduct or failure to make decision sought to be reviewed – Decision or failure to make a decision identified during hearing not a reviewable decision – Relief claimed not relief Court had power to grant.
Judicial Review Act (Tas) 2000, s 38.
Aust Dig Administrative Law [1084]
REPRESENTATION:
Counsel:
Applicant: Not applicable
First and Second Respondents: P Jackson SC
Third and Fourth Respondents: No appearance
Solicitors:
Applicant: In person
First and Second Respondents: J Shears
Third and Fourth Respondents: No appearance
Judgment Number: [2016] TASSC 31
Number of paragraphs: 57
Serial No 31/2016
File No 2765/2015
PROFESSOR NADIRA PARDO v AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY, PSYCHOLOGY BOARD OF AUSTRALIA, REGIONAL BOARD OF TASMANIA, VICTORIA AND ACT, PSYCHOLOGY BOARDS OF WA AND SA
REASONS FOR JUDGMENT TENNENT J
29 June 2016
These reasons relate to an interlocutory application filed 25 February 2016 pursuant to the Judicial Review Act 2000 (the Act), s 38, on behalf of the first and second named respondents (the respondents) in these proceedings (the February application). The application relates to an originating application filed by Professor Nadira Pardo (the applicant) on 28 January 2016. Section 38 relevantly provides:
"Power of Court to stay or dismiss applications in certain circumstances
(1) The Court may stay or dismiss an application under section 17, 18 or 19 or a claim for relief in such an application if the Court considers that –
(a) it would be inappropriate –
(i) for proceedings relating to the application or claim to be continued; or
(ii) to grant the application or claim; or
(b) no reasonable basis for the application or claim is disclosed; or
(c) the application or claim is frivolous or vexatious; or
(d) the application or claim is an abuse of the process of the Court.
(2) A power of the Court under this section –
(a) must be exercised by order; and
(b)may be exercised at any time in the relevant proceeding but, in the case of a power to dismiss an application, the Court must try to ensure that any exercise of the power occurs at the earliest appropriate time.
(3) The Court may make an order under this section –
(a) of its own motion; or
(b) on an application by a party to the proceeding.
(4) The Court may receive evidence on the hearing of an application for an order under this section.
… ."
Originating application
The originating application filed by the applicant was in the following terms:
"Professor Nadira Pardo, PhD, applies for the following orders:
1 Under Habeus [sic] Corpus I appeal to the mercy of this Court to return my human dignity and rights as guaranteed under the World Trade Organisation, to which Australia is a member country, and under the human rights for a) the recognition of professional qualifications and b) the equivalent authorities to practice the profession to which those qualifications entitle the person in their home country under UNESCO. AEI-NOOSR as the authority in Australia under UNESCO has assessed my academic qualifications in Psychology to be equivalent to a total of 14 years of Australian qualifications. I humbly appeal to the Court for the body of my profession to be returned to me in that my academic qualifications have not been properly recognised, and thus my ability to practice the profession which I have spent my life training and practicing in other countries, is being prevented or imprisoned by the AHPRA and the Psychology Board of Australia. ORDER TO READ: Recognition by AHPRA and the Psychology Board of Australia of Dr Pardo's 14 years of academic qualifications in Psychology, 9.5 by coursework, and 5 by research degrees entitling her to full unconditional Registration to practice in Australia as a Psychologist.
2 Furthermore, in accordance with the Lisbon, Tokyo, and Bangkok international conventions Australia is signatory to, I humbly request that AHPRA and the Psychology Board of Australia grant full and unconditional Endorsement in the areas of Clinical, I/O and School Psychology, acknowledging completion of 2 years supervised professional practice in a private Psychiatric hospital in the US, and her supervised professional practice in I/O in a management consulting firm in the US, and her completion of 2 years as a Senior School Psychologist in WA Department of Education. And that the normal 2 year waiting period to supervise students in Psychology be waived, in lieu of the years awaiting outcome of the appeals on the issue of Registration. The Australian Psychological Society spent 10 months investigating my CV, interviewing my former employers and professors, and confirmed the status of Full Member as a result. However AHPRA has refused to acknowledge their findings, which confirms the minimum 6 years of APAC course of study equivalence. ORDER TO READ: Recognition by AHPRA and the Psychology Board of Australia of Dr Pardo's previous supervised professional practice as a School I/O and Clinical Psychologist, and acknowledgement of her ongoing professional practice in all three areas, updating training on a regular basis to teach as a Full Professor in these specialisations in the US.
3 Damages in the amount of loss of wages (currently estimated at $6.4 million AUD) to be awarded for the years applicant [sic] has been prevented from practicing her profession in Australia, due to the administrative errors and oversights related to the incorrect assessment of my overseas qualifications: a) first by the SA Psychology Board claimed my 14 years of accredited US qualifications were only equivalent to a 5 year undergraduate course of study, requiring me to do a 5+1 Conditional Registration b) then the WA Psychology Board claimed the 14 years were only equivalent to a 4 year undergraduate course of study, requiring me to do a 4+2 Conditional Registration, c) then in response to an appeal of the WA and SA oversights, in 2010 AHPRA and Psychology Board of Australia stated that my Master's and Doctoral degrees (accredited by the American Psychological Association in the US) were only equivalent to an Australian undergraduate degree in Psychology, d) in a separate application for General Registration in Tasmania in 2012 my Master's degree was declared to be by research, requiring me to complete the 4+2 program I had stared in WA; however in several appeals through the AHPRA, Ombudsman, and Tribunal process, evidence has been submitted from three separate sources from my university confirming my Master's degree was completed by coursework, then, under the MS/PhD program I completed a master's thesis to gain admission to the PhD program. The AHPRA assessors incorrectly concluded that my MSGP was by research, and I launched more appeals through the Ombudsman office, wrote to the Ministers of Health, the PM, and anyone else who I thought might be able to help, e) in a second application for the new and improved Transitional Program for Overseas trained practitioners, I applied for credit of the 21 months I completed in the 4+2 program, whilst awaiting outcomes of my appeals through the Justice system, however, the Acting State Registrar replied in writing that all 6 years of my academic qualifications had been completed by research, and thus I had to complete the full 4+2 program. I completed 5.5 years in my BS degree, 4 years in my MS degree, and 5 years in the PhD degree, so total coursework was 9.5 years, and research was 5 years. I should have never been required to complete the 4+2 or the 5+1 under the regulations in place at the time of my applications, and they had every opportunity to correct their administrative oversights along the way, but have instead spent 5 years refusing to correct their mistakes. Current Transition requires only 3 months of supervised professional practice in Australia, and I have completed 21 months. ORDER TO READ: Award loss of wages for prevention of profession in Australia in the amount of %6.4 [sic] million AUD to be paid by AHPRA and the Psychology Board of Australia, in full within 1 month from the date of this order."
The background to the originating application is that the applicant obtained qualifications in psychology in the United States of America many years ago. She then moved to live in Australia. Since that move, she has tried to obtain unconditional registration as a psychologist in Western Australia, South Australia and Tasmania. She has been unsuccessful. On the face of it, the originating application in general terms seeks orders requiring recognition of the applicant's existing qualifications by the various states in which she has applied to be registered, unconditional registration as a psychologist, and damages for what is asserted to be lost income. In effect, the applicant wants this Court to over-rule any and all decisions which might have been made about her entitlement to registration as a psychologist in three States.
The application, on its face, while it purported to be an application for judicial review, did not identify the section in the Act pursuant to which the application was made, or the specific grounds of the application by reference to the Act. The originating application was supported by an affidavit of the applicant sworn 27 January 2016.
There were four named respondents to the originating application. These were the Australian Health Practitioner Regulation Agency (first respondent), Psychology Board of Australia (second respondent), Regional Board of Tasmania, Victoria and ACT (third respondent) and Psychology Boards of WA and SA (now Regional Board of WA, SA and NT) (fourth respondent). It is apparent from the written submissions of counsel for the first and second respondents, extracted at [17], that the third and fourth respondents as named have no real role in the proceedings.
The February application
By the February application, the first and second respondents sought the following orders:
"1 Pursuant to s 38 of the Judicial Review Act 2000, that the application and claim filed by the Applicant on 24 December 2015 are dismissed on the grounds that:
(a)It would be inappropriate for proceedings relating to the application or claim to be continued.
(b)Further, or alternatively, no reasonable basis is disclosed for the application or the claim.
(c)Further, or alternatively, the application and the claim are frivolous or vexatious.
(d)Further, or alternatively, the application and the claim are each an abuse of the process of the Court.
2 Alternatively, in the event the proceedings are not dismissed:
(a)An order that the orders made by the Associate Judge on 12 February 2016 are vacated.
(b) In lieu thereof, such other orders as the Judge deems appropriate.
3 Such further or other orders, including orders as to the costs of this application and of the principal application, as the Court determines are appropriate."
In support of the February application, the respondents filed an affidavit by John Shears, the in-house lawyer for the first respondent, affirmed on 25 February 2016. He affirmed as follows:
"1 I am employed by the First named Respondent ('AHPRA') as an in-house lawyer in its Hobart office. I am aware from perusing the records held by this organisation that the Applicant has sought to obtain registration as a psychologist in Australia over several years. The facts stated in this affidavit are based on my direct involvement with some of the Applicant's various dealings with the bodies referred to and on my examination of AHPRA's records.
2 The Applicant's qualifications in psychology were obtained in the United States of America.
3 In 2007 the Applicant made an application to the former South Australian Psychology Board for full registration as a psychologist. That application for full registration was refused on the grounds that the Applicant would first need to undertake one year of full time equivalent experience in the practice of psychology under a supervised program. The Applicant did not take up that option.
4 In 2010, the Applicant made application to the former Psychologists Registration Board of Western Australia for full registration in Western Australia. That Board granted conditional registration to the Applicant to enable her to undertake a two year Board approved internship, which if successfully completed, would have qualified her for full registration. The Applicant did not successfully complete that period of supervised practice and did not obtain full registration in that State.
5 From 1 July 2010 the National Registration and Accreditation Scheme for psychologists commenced and the Applicant transitioned to that scheme as a provisionally registered psychologist. Since that time it has been an administrative responsibility of AHPRA, operating under the Health Practitioner Regulation National Law Act 2009 (Qld) ('the National Law') and the Health Practitioners Regulation National Law (Tasmania) Act 2010 to receive applications for registration on behalf of regional psychology boards.
6 In 2012 the Applicant moved to Tasmania to take up employment that was conditional on her obtaining registration. On 27 July 2012, in response to an application for full registration, the Applicant was advised that the ACT, Tasmania and Victoria Regional Board of the Psychology Board of Australia ('the Regional Board') would only recognise the Applicant as having completed 15 months of the 24 months of supervised practice required of her under the provisional registration granted by the former Psychologists Registration Board of Western Australia because supervision progress reports identified deficiencies in the required level of supervision. Accordingly, the Regional Board informed her of its intention to refuse an application by her for full registration.
7 The Applicant lodged an Application for judicial review of that foreshadowed decision in the Federal Court of Australia in Hobart in 2012. By the time the application was heard (by Kerr J on 1 February 2013) the Regional Board had confirmed (in January 2013) its decision to refuse her application for registration. Justice Kerr dismissed her application, holding that no relevant decision had been made pursuant to any Commonwealth enactment and accordingly the jurisdiction of the Court had not been invoked. The decision is reported as Pardo v Australian Health Practitioner Regulation Authority [2013] FCA 91. A copy of the decision is annexed hereto marked 'A'.
8 The Applicant applied pursuant to s 21(2) of the Health Practitioners Tribunal Act 2010 (Tas) to the Health Practitioners Tribunal ('the Tribunal') in 2013 for a review of the decision of the Regional Board referred to in the previous paragraph to refuse her application for general registration. On 24 September 2013 the Tribunal dismissed that application. The decision is reported as: Dr Nadira Tidwell Pardo –v– Psychology Board of Australia [2013] TASHPT 1. A copy of that decision is annexed hereto marked 'B'.
9 By application dated 15 May 2014 to the Regional Board the applicant sought provisional registration as a psychologist. Although misconceived, the purpose of the application for provisional registration was to enable her to complete a transitional program for registration provided for in the Regional Board's Policy for Overseas Qualified Applicants for Registration (a copy of which is annexed hereto marked 'C'). In response to that application the Board informed the Applicant that having assessed the equivalency of her qualifications to relevant Australian qualifications the Board was not satisfied that she was eligible for the transitional program provided for in the Policy.
10 By application to the Tribunal dated 7 October 2014 the Applicant applied for a review of the Regional Board's assessment referred to in the previous paragraph. On 24 August 2015 the Tribunal dismissed that application. The decision is reported as: Dr Nadira Pardo –v– Psychology Board of Australia [2015] TASHPT 8. A copy of that decision is annexed hereto marked 'D'.
11 The Applicant has not exercised the right of appeal given to her by s 52 of the Health Practitioners Tribunal Act 2010 in respect of either of the Tribunal decisions referred to in paragraphs 8 and 10 above.
12 The Applicant's application in these proceedings does not identify any decision to which the Judicial Review Act 2000 would appear to apply.
13 The application does not identify any decision as the subject of the application by reference to the date and terms of the decision and the reasons for it, as required by the Supreme Court Rules 2000, r 777B(a).
14 The application does not identify as the grounds on which review of a decision is sought, or grounds on which review of conduct engaged in by any of the respondents for the purpose of making a decision to which the Judicial Review Act applies, any of the grounds provided for in s 17 or s 18 of that Act.
15 At a directions hearing held on 12 February 2016 before the Associate Judge I flagged that an application by the Respondents to a Judge was sought as soon as possible for summary dismissal of the application pursuant to s 38(1) of the Judicial Review Act 2000.
At that directions hearing the Associate Judge made the following orders:
1The first and second respondents through their solicitor are to file and serve a court book containing the materials before the Board and the transcript of any recorded proceedings before the Board and a copy of the determination.
2The first and second respondents file and serve a court book containing copies of any other documents to be relied upon by them.
3Within 45 days the applicant is to file and serve any affidavits to be relied upon by her at the hearing and an index and paginated court book containing copies of all of the documents including affidavits upon which the applicant intends to rely.
4The application is to be mentioned at 9.15am on Friday, 16 April 2016, at the Supreme Court, Alexander Street, Burnie.
16 The Respondents are unable to comply with paragraphs 1 and 2 of those orders because they are unable to identify what is 'the determination' referred to in paragraph 1 of the orders or make any determination of what documents might or might not be documents to be relied on by them (paragraph 2 of the orders) in the absence of any identification in the Applicant's application of a decision in respect of which judicial review is sought.
17 On 12 February 2016, following the directions hearing, the Applicant sent an email to me. A copy of which is annexed hereto marked 'E'.
It appears from that email that the Applicant intends to make still unspecified decisions relating each of the following matters the subject of these proceedings:
(a)An application made by her in South Australia in 2006/2007 for full registration as a psychologist. This might be the application referred to in paragraph 3 above.
(b)An application made by her in Western Australia in 2010 for full registration as a psychologist. This might be the application referred to in paragraph 4 above.
(c)Another application made by her in Western Australia later in 2010 or in 2012 for full registration as a psychologist.
(d)An otherwise unspecified decision made by an unidentified person or entity some time in 2013.
(e)An application made by her in Tasmania in 2012/2013 for full registration as a psychologist. This might be the application referred to in paragraphs 6 and 7 above, which the Regional Board refused in January 2013.
(f)An appeal, otherwise unspecified, but which could be a reference to the application to the Federal Court referred to in paragraph 7 above; or to the application the Health Practitioners Tribunal referred to in paragraph 8 above.
(g)An otherwise unspecified application in 2014/2015 'for overseas transitional application' [sic]. This might be the application referred to in paragraph 9 above.
(h)As many as 8 other applications otherwise unspecified or identified in any way.
(i)An application 'for special consideration for reduction of 2 years to the 3 months for overseas transitional in late 2015'. This appears to refer to an email dated Friday, 20 November 2015 that the Applicant sent to the Chair of the Psychology Board of Australia, Professor Brin Grenyer, and a letter that Professor Grenyer sent to the Applicant in reply dated 14 December 2015. Copies of that email and Professor Grenyer's reply are annexed hereto marked 'F' and 'G' respectively." [Annexures omitted.]
On 26 May 2016, the applicant applied to the District Registrar of the Court in Burnie for the issue of certain subpoenas in the substantive proceedings. She sought they be returnable on the date of the hearing of the February application. They were duly issued. These were subpoenas to give evidence and to produce documents directed to the State Manager of AHPRA in Victoria, and the State Manager of AHPRA in Western Australia.
On the same date, the first and second respondents and the State Manager for Western Australia of the Australian Health Practitioner Regulation Agency filed an interlocutory application seeking to set aside the two subpoenas, or alternatively stay any obligation of the addressees of the subpoenas to comply with their terms until such time as the February application had been dealt with.
These were not the first subpoenas the applicant had had issued. A first set was set aside on application to the Associate Judge. At the time that was done, the applicant was advised she could not seek the issue of more subpoenas without leave. She did not seek leave before seeking the issue of those issued on 26 May. She was however, before the Associate Judge, asked to identify with precision what documents she wanted. Shortly after the May subpoenas were issued and served, the respondents obtained a list of documents the applicant wanted, and supplied copies of all bar one. In response the applicant swore an affidavit on 3 June 2016 annexing the documents which were supplied.
The hearing of the February application
The hearing commenced on 9 June 2016. The first matter the Court dealt with was the subpoenas. Counsel for the respondents indicated that one document sought by the applicant, which could not initially be found, had now been found. A copy was handed to the applicant. Initially, the applicant still sought that the two recipients of the subpoenas be required to give evidence. After some discussion about the reasons for that, the applicant indicated she did not require them, and the recipients of the subpoenas were released from their obligations to comply with them.
The substantive hearing then commenced. Counsel for the respondents sought to read into evidence the affidavit of Mr Shears. The applicant had already given notice she wished to cross-examine him. What was meant by reading an affidavit into evidence was explained to the applicant, and she was asked if she had any objection. Initially she did not, but then said she did. In an effort to ensure the proceedings were not brought to a halt, I suggested the affidavit could be taken de bene esse, and that, after the applicant had cross-examined Mr Shears, I would rule on its admissibility. Both parties agreed to that course of action.
Mr Shears entered the witness box. He was identified and confirmed the contents of his affidavit were correct. He was made available for cross-examination. It became apparent from the questions being asked that the applicant's objection to Mr Shears' affidavit arose because the affidavit quite clearly contained hearsay, and the applicant understood that hearsay evidence was inadmissible. She was referred to the Supreme Court Rules 2000 (the Rules) which permit hearsay in certain interlocutory applications, provided certain conditions are met. Rule 502(2)(e) arguably might have prevented the use of hearsay in this matter. However, the information in Mr Shears' affidavit was extracted from business records which themselves would have been admissible. It was therefore appropriate to direct that the hearsay be permitted to avoid the need for all the relevant records to be produced. It also became apparent from the cross-examination of Mr Shears that the applicant was not so much challenging what he did say, but what, she suggested, he did not say. She said he could have said more.
After the cross-examination was completed, I ruled the affidavit admissible, and it was read into evidence in its entirety. That affidavit was the only evidence upon which the respondents sought to rely.
The applicant was asked if she wished to give or adduce evidence in support of her opposition to the application. Again, after some discussion, the applicant indicated she wished to rely on her affidavits sworn on 27 January and 3 June 2016. They were read into evidence without objection, although counsel for the respondents indicated that there were, in his view, objectionable matters in the material. However, in the interests of having the hearing proceed, he would not raise them. Counsel advised that that concession was made solely for the purpose of the interlocutory application, and would not extend to any substantive hearing. The applicant elected not to give any oral evidence, and counsel for the respondents did not seek to cross-examine her about any material in her affidavits.
Counsel for the respondents was then invited to make submissions. Counsel relied on written submissions filed 6 June 2016. When an enquiry was made of the applicant to ensure that she had the submissions, she said she did not. This was notwithstanding that a copy had been to sent to the applicant's email address. The applicant advised the Court that, because of recent bad weather, internet services were not operating in her area. A copy was supplied to the applicant and she was offered the opportunity of an adjournment to consider them. She declined that opportunity. Counsel for the respondents then spoke to the submissions and generally. During the course of those submissions, and with the applicant's consent, a document was tendered, being a letter from the first respondent to the applicant dated 30 April 2012. It was the document provided to the applicant at the commencement of the hearing, when subpoenas were being discussed.
The written submissions of counsel for the respondents were in the following terms:
"1 The first respondent ('AHPRA') is the agency established by s 23(1) of the Health Practitioner Regulation National Law ('the National Law').
It is an administrative body and its powers and functions as such are set out in sections 24 and 25 of the National Law.
Importantly, AHPRA has no determinative powers or functions in respect of applications for registration of health practitioners under Part 7 of the National Law. In particular, it has no functions or powers that extend to determinations concerning qualification and eligibility for registration.
2 The second respondent ('the National Board') is one of the National Health Practitioner Boards established by s 31 of the National Law.
The powers and functions of those Boards are set out in sections 32 and 35 of the National Law.
Like AHPRA, the National Board is a body corporate with perpetual succession that may sue and be sued in its corporate name (National law, sections 23(2) and 31(2)).
Relevantly for present purposes the powers and functions of the National Board include the registration of 'suitably qualified and competent persons' as psychologists (s 35(1)(a)) and, in conjunction with that core function:
'(b) to decide the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession;
(c)to develop or approve standards, codes and guidelines for the health profession, including –
..........
(ii) the development of registration standards for approval by the Ministerial Council;
..........
(d) to approve accredited programs of study as providing qualifications for registration or endorsement in the health profession;
(e) 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;' (s 35(1)).
3 The third named respondent is a State or Territory Board established by the National Board pursuant to s 36 of the National Law.
A State or Territory Board has only such functions as are delegated to it by a National Board under s 37(1)(a) of the National Law.
It is a committee of the National Board and has no separate corporate existence. It would seem to follow that it may not sue or be sued in its own name. It would appear therefore that any proceedings brought in respect of any decision of a State or Territory Board exercising a function delegated to it by the National Board should be brought against the National Board.
The purpose of a State or Territory Board is 'to enable the Board to exercise its functions in the jurisdiction in a way that provides an effective and timely local response to health practitioners and other persons in the jurisdiction': National law, s 36(1).
The correct title of the third named respondent is 'The ACT, Tasmania and Victoria Regional Board of the Psychology Board of Australia' ('the Regional Board'): National law, s 36(2).
Among the functions delegated by the National Board to its regional boards is the core function of registration, together with related functions.
4 The fourth named respondents ('Psychology Boards of WA and SA') do not exist as legal entities.
There is a committee of the Psychology Board of Australia called 'the NT/SA/WA/ Regional Board of the Psychology Board of Australia'.
The Supreme Court of Tasmania can have no jurisdiction under the Judicial Review Act 2000 ('the JRA') over a committee of the National Board exercising delegated functions in States other than Tasmania.
REGISTRATION OF PSYCHOLOGISTS IN AUSTRALIA
5 In accordance with the requirement in s 35(1)(e) of the National Law (set out above) the National Board has developed registration standards approved by the Australian Health Workforce Ministerial Council under s 12 of the National Law; and in conjunction with that standard a Policy for Overseas Qualified Applicants for Registration ('the Policy').
The Policy relevantly provides:
'When any of an applicant's psychology qualifications for any class of registration are not accredited by the Australian Psychology Accreditation Council (APAC), the qualifications must be assessed as part of an application for registration to determine their equivalency to an APAC accredited sequence of study.'
This is the policy referred to in par 9 of the affidavit of John Shears sworn on 25 February 2016.
6 A person seeking general registration as a psychologist must be both qualified and eligible for general registration.
The criteria that establish qualification for general registration are set out in s 53 of the National law. Section 53(b) provides:
'An individual is qualified for general registration in a health profession if - ..........
(b) the individual holds a qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification'.
7The National law, s 62, also provides for provisional registration.
The purpose of granting an individual provisional registration is 'to enable the individual to complete a period of supervised practice that the individual requires to be eligible for general registration' (s 62(1)).
Section 62(1)(a) relevantly provides that an individual is eligible for provisional registration if:
'(a) the individual is qualified for general registration in the profession'.
8As explained in Mr Shears' affidavit, par 9:
(a) Dr Pardo made an application in May 2014 to the Regional Board in which she sought provisional registration as a psychologist to enable her to complete a transitional program for registration provided for in the Policy.
(b) The Board assessed the equivalency of Dr Pardo's overseas qualifications to relevant Australian qualifications for the purposes of the Policy.
(c) Its assessment was that Dr Pardo's qualifications did not meet the equivalency requirements that would make her eligible for the transitional program.
9As also explained in Mr Shears' affidavit, par 17 (and also pars 3, 4 and 6), Dr Pardo has made a number of other applications for either general or provisional registration as a psychologist in Australia.
THE ORIGINATING APPLICATION
10The proceedings purport to be brought under the JRA. Yet:
(a) The Originating Application makes no reference to any particular provisions of the Act.
(b) It recites none of the grounds for review provided for in s 17(2), s 18(2) or s 19 of the Act.
(c) It does not identify any decision in respect of which relief is sought in such a way as to establish that the application relates to any decision that is a decision to which the Act applies.
(d) It does not seek any relief the Court has, by virtue of s 27, jurisdiction to grant.
11On the most favourable interpretation that can be given to the originating Application, in pars 1 and 2 the applicant does not appear to seek review of any decision, or of conduct going to a decision.
Instead, she appears to be asking the Court to make orders, as though in the exercise of an original jurisdiction, that 'recognition' or 'proper recognition' be given to certain academic qualifications or experience she claims to possess; and that the Court waive certain pre-conditions to her eligibility or qualification for registration in Australia as a psychologist, relating to practical experience.
It would therefore appear that by this application, without actually seeking the review of any particular decision identified in the application, made by any particular decision maker identified in the application, Dr Pardo is simply seeking to have the Court exercise the function of the National Board, delegated to the Regional Board, to assess in accordance with the Policy the equivalency of her overseas qualifications and establish the requirement she must fulfil under the Policy in respect of supervised practical experience in order to become qualified and eligible for registration.
12Hence –
(a) At the middle of par 1 the applicant alleges that 'my academic qualifications have not been properly recognised'; and
(b) that paragraph ends with a request for an order that:
'… AHPRA and the Psychology Board of Australia [recognise] Dr Pardo's 14 years of academic qualifications in Psychology, 9.5 by coursework, and 5 by research degrees entitling her to full unconditional Registration to practice in Australia as a Psychologist';
(c) At the middle of par 2 the applicant says that she requests 'that the normal 2 year waiting period to supervise students in Psychology be waived'; and
(d) that paragraph ends with a request for an order that:
'… AHPRA and the Psychology Board of Australia [recognise] Dr Pardo's previous supervised professional practice as a School, 1/0 and Clinical Psychologist, and acknowledgement of her ongoing professional practice in all three areas, updating training on a regular basis to teach as a Full Professor in these specialisations in the US'.
THE RESPONDENTS' INTERLOCUTORY APPLICATION
13 The application is made pursuant to the JRA s 38.
Reliance is also placed on s 23 and on the SCR, r 777B(a).
The respondents rely on all of the grounds set out in subsection 38(1) although they overlap to some extent.
The respondents say that the application on its face justifies dismissal on at least the grounds set out in paragraphs (b) and (c); and that the evidence also discloses that dismissal is appropriate on the grounds set out in those paragraphs together with paragraphs (a) and (d).
They also submit that on the face of it there has been considerable delay amounting in every case to years in bringing these proceedings in respect of any decision of the second respondent that could conceivably be the subject of the proceedings, such that –
· the time limited by s 23(1)(a) must plainly have expired;
· there is no evidence from which it could be concluded that the proceedings have been brought within a reasonable time;
· there are no other circumstances from which to conclude that delay in commencement of the proceedings should be overlooked.
NO REASONABLE BASIS FOR THE APPLICATION OR FOR THE RELIEF CLAIMED
14 It is impossible to discern whether the application purports to be made under the JRA s 17 (review of a decision), s 18 (review of conduct relating to the making of a decision) or s 19 (failure to make a decision).
However, the applicants say that the application fails to comply with any of the requirements of the SCR, r 777B, regardless of which provision of the JRA it purports to rely on.
In addition, it does not state in any intelligible fashion grounds for review that can be seen to fall within the JRA, s 17(2).
(a)If this is intended to be an application under s 17, it does not specify any of the matters required to be set out in the application; that is, 'the date and terms of the decision and the reasons for it' (SCR r 777B(a)).
In addition, it does not state in any intelligible fashion grounds for review that can be seen to fall within the JRA, s 17(2).
(b)If it is intended to be an application under r 18, it does not set out in any reasonably intelligible fashion 'particulars of all conduct, past, present and proposed, in respect of which the application is made' (r 777B(b)).
(c)If it is intended to be an application under r 19, it does not set out in any reasonably intelligible fashion:
'particulars of –
(i) the decision which the respondent is alleged to have had a duty to make; and
(ii) any law that fixes a period within which the respondent is required to have made the decision; and
(iii) the date on which that period is alleged to have expired' (r 777B(c)).
No reasonable basis for the application or for the relief claimed in either paragraph 1 or paragraph 2 of the application is disclosed.
NO JURISDICTION TO AWARD DAMAGES
15it is plain that the Court has no jurisdiction to entertain the claim for 'damages' that is advanced in par 3 of the application on this application.
Regardless of which provision of the JRA the applicant purports to rely on, the only relief that can be given on an application for an order of review is that contained in s 27.
Proceedings 'for the recovery of damages, however arising' are to be commenced by a writ.
ASSESSMENT OF EQUIVALENCY OF QUALIFICATIONS IS NOT A PROPER MATTER FOR ADJUDICATION BY THE COURT
16 Those observations aside, it seems plain that the thrust of the proceedings is that Dr Pardo disagrees with assessments that have been made at various times and by various registration authorities concerning the sufficiency of her overseas qualifications to make her eligible for registration in Australia (Mr Shears' affidavit, par 17 and annexures 'E', 'F' and 'G') and she wants the Court to assume the role of the National Board in making those assessments.
If that is the matter the Court is being asked to determine, then it involves the kinds of assessment and judgment that various courts have consistently said are not proper matters for adjudication by courts and administrative tribunals.
That is because it necessarily involves adjudication and determination of academic standards and questions of academic assessment and judgment directed at evaluating likely clinical competence and performance in much the same way that assessment by way of formal examination and clinical assessment does: Tanious v Australian Medical Council Limited and AHPRA [2015] NSWSC 447 at [20], [28] – [34]; Tanious v Australian Medical Council Ltd [2015] NSWCA 189 AT [8], [33], [34]; Walsh v University of Technology, Sydney [2007] FCA 880 at [72] – [80]; Shvetsova v The University of New England [2014] NSWSC 918 at [30].
Reference is made in each of those cases to pronouncements of high authority to like effect as to the lack of any legal foundation for adjudication on such matters in decisions of the English Court of Appeal and the High Court: Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 and Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99.
There is 'no legal foundation' for the Court to involve itself directly in adjudication upon a matter of academic standards: Walsh v University of Technology, Sydney at [80]; Shvetsova v The University of New England at [30]; Tanious v Australian Medical Council per Bellew J at first instance at [34]." [Footnotes omitted.]
After counsel for the respondents had completed his submissions, the applicant was called on to make hers. The applicant was advised, prior to commencing her submissions, that she needed to address the application before the Court and the matters raised by the respondents by reference to the Act, s 38. It was confirmed that she had a copy of the Act with her. She was reminded that this was not the hearing of her substantive originating application, only the interlocutory matter. Two issues arose fairly quickly. The applicant indicated that she was working from the contents of a Court Book filed in March 2016. That was a book prepared for a hearing before the Associate Judge. The applicant was told there was a fresh book prepared for the current hearing, filed on 2 June. It was confirmed that the current book had all the material in the old one, and that the applicant otherwise had all material she wanted to rely on.
The second issue related to what the applicant described as an affidavit filed by her on 12 April 2016. While it was found on the Court file, unfortunately it was not listed in the index or numbered. It was not in the form of an affidavit although it purported to have been sworn, and was headed as a response to the various interlocutory applications then outstanding. The applicant wished to rely on it. Counsel for the respondents did not object, and it became exhibit R1.
The applicant then began her submissions. It became clear that the applicant was addressing what she asserted were failures by various regulatory bodies around the country to properly deal with her overseas psychology qualifications and training, and that the applicant was not addressing the issues relevant to the application.
It was pointed out to the applicant that counsel for the respondents had submitted that her originating application did not address the section under the Act pursuant to which her application was made, and did not comply with the Rules, r 777B(2). In an exchange with the applicant, it was sought to identify what decision, failure to make a decision, or conduct leading to the making of a decision was sought to be reviewed, and if it were a decision, what grounds of review by reference to the Act, s 17, were relied upon.
Ultimately the applicant identified that the decision she sought to have reviewed was that contained in a letter dated 14 December 2015 written to her by Professor Brin Grenyer in his capacity as Chair of the Psychology Board of Australia. That letter provided as follows:
"Dear Dr Pardo
Application for special consideration
Thank you for your correspondence of 20 November 2015 regarding your application for special consideration.
The Psychology Board of Australia delegates responsibility for registration matters to its regional boards and in your case the ACT/TAS/VIC Regional Board of the Psychology Board of Australia.
The National Board does not review decisions of its regional boards. As you are aware, there is a clear appeal process if you do not agree with the decision of the ACT/TAS/VIC Regional Board which you have exercised in this particular matter. Clear advice has been provided to you about how to rectify deficits in your education – so you have a clear path forward.
If you have concerns about the experience with an administrative process you can lodge a complaint with AHPRA or with the National Health Practitioner Ombudsman. Further details can be found at sincerely
Professor Brin Grenyer
Chair, Psychology Board of Australia"
The applicant asserted that Professor Grenyer had refused her application for special consideration, and it was that decision she sought to have reviewed. She identified the Act, ss 17(2) (a), (b), (e) and (f), as relevant grounds of review. She also began to make submissions about international conventions. While these had been referred to in the applicant's originating application, the precise parts which were relevant, and the manner in which it was said they were relevant, was not identified.
At that point, the proceedings were adjourned to enable the applicant to put this detail to the Court. The next day the applicant filed a document entitled "Submissions in response …". The hearing then resumed on 15 June. I heard further submissions from the applicant by reference to the document she had filed on 10 June. I also invited the applicant to make any specific submissions she wished to make by reference to the Act, s 38, since it was an application pursuant to that section with which the Court was dealing. The applicant declined that opportunity. Counsel for the respondents then made submissions in reply, essentially by reference to the material filed on 10 June.
Judicial Review Act
This Court has power under the Act to review certain decisions (s 17), to review conduct relating to decisions (s 18) and to review failures to make decisions (s 19). Section 17 provides:
"17 Application for review of decision
(1) A person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to the decision.
(2) The application may be made on any one or more of the following grounds:
(a) that a breach of the rules of natural justice happened relating to the making of the decision;
(b) that procedures that were required by law to be observed relating to the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorised by the enactment under which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;
(f) that the decision involved an error of law (whether or not the error appears on the record of the decision);
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(i) that the decision was otherwise contrary to law.
(3) This section applies only to a decision made after the commencement of this Act."
Section 18 provides:
"18 Application for review of conduct related to making of decision
(1) If a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies (whether by that person or by another person), a person who is aggrieved by the conduct may apply to the Court for an order of review relating to the conduct.
(2) An application may be made on any one or more of the following grounds:
(a) that a breach of the rules of natural justice has happened, is happening, or is likely to happen, relating to the conduct;
(b) that procedures that are required by law to be observed relating to the conduct have not been, are not being, or are likely not to be, observed;
(c) that the person proposing to make the decision does not have jurisdiction to make the proposed decision;
(d) that the enactment under which the decision is proposed to be made does not authorise the making of the proposed decision;
(e) that the making of the proposed decision would be an improper exercise of the power conferred by the enactment under which the decision is proposed to be made;
(f) that an error of law –
(i)has been, is being, or is likely to be, committed in the course of the conduct; or
(ii) is likely to be committed in the making of the proposed decision;
(g) that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct;
(h) that there is no evidence or other material to justify the making of the proposed decision;
(i) that the making of the proposed decision would be otherwise contrary to law.
(3) This section applies only to conduct engaged in, or proposed to be engaged in, after the commencement of this Act."
Section 19 provides:
"19 Application relating to failure to make decision
(1) If –
(a) a person has a duty to make a decision to which this Act applies; and
(b) there is no law that fixes a period within which the person is required to make the decision; and
(c) the person has failed to make the decision –
a person who is aggrieved by the failure of the person to make the decision may apply to the Court for an order of review relating to the failure to make the decision on the ground that there has been unreasonable delay in making the decision.
(2) If –
(a) a person has a duty to make a decision to which this Act applies; and
(b) a law fixes a period within which the person is required to make the decision; and
(c) the person failed to make the decision before the end of the period –
a person who is aggrieved by the failure of the person to make the decision within the period may apply to the Court for an order of review relating to the failure to make the decision within the period on the ground that the person has a duty to make the decision despite the end of the period.
(3) This section applies only to a decision required to be made after the commencement of this Act."
It is apparent that a person is not entitled to seek a review under the Act of any decision, conduct or failure unless they are aggrieved by that decision, conduct or failure, and the relevant decision is a decision to which the Act applies. The phrase "decision to which this Act applies" is defined in the Act to mean a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion).
The Act, s 23, provides that any application for an order of review relating to a decision must be made within 28 days of the date upon which, if the applicant has received a document setting out the terms of any decision sought to be reviewed, the date that document was received. The Court has the power to extend time. Further, r 777B(a), requires an applicant to identify, if the application relates to a decision, the date and terms of the decision and the reasons for it.
I have already set out s 38 which outlines the matters to which I must have regard when dealing with the application now before me.
Discussion by reference to submissions made by counsel for the respondents and by the applicant in person
This Court has a discretion to stay or dismiss any application made pursuant to the Act, ss 17, 18 or 19, or any claim for relief made in such an application, if the Court is satisfied about certain matters. Those matters are set out in s 38(1) of the Act. The applicant made no submissions specifically by reference to those criteria, save references in some written material and orally disputing that her originating application was frivolous or vexatious.
The Act, s 38(1)(b), provides for possible dismissal or stay on the basis that no reasonable basis for the application or claim is disclosed by the originating application. As I have already indicated, the applicant's originating application did not identify a specific decision, conduct leading to a decision or a failure to make a decision which the applicant sought to review. The originating application did not identify any section in the Act it was said the application was made under, and it did not identify any grounds of review by reference to the Act.
While the applicant ultimately identified, during the course of submissions, basically as a consequence of my questioning of her, the contents of the letter sent to her by Professor Grenyer as being the decision which she sought to have reviewed by her originating application, that letter is not referred to in the originating application. It appears to be referred to in par 11(q) of the supporting affidavit sworn in January 2016 in the following terms:
"2015 apply to the Chair of the Psychology Board of Australia for special consideration in an attempt to get the final report submitted by Chris Armstrong properly credited toward a reduced 3 month period in lieu of having to start a new 4+2 program, and advised my academic qualifications are 'inadequate' requiring a new 4+2 program be completed now with an examination."
The letter of request which resulted in that response from Professor Grenyer was not produced by the applicant, but was attached to Mr Shears’ affidavit. The request is for a reduction of the period of supervision required. It then deals with some history of the applicant’s attempts to gain registration. It asserts that AHPRA has been negligent and threatens a report to police if she does not get a favourable response by a certain date. As to the letter of Professor Grenyer, extracted at [22] above, with respect, it does not say what the applicant suggested it did. The applicant in her oral submissions repeated that Professor Grenyer in his letter had "refused" to recognise her qualifications, and refused to do other things, and that those refusals amounted to decisions which could be reviewed. With respect, it is quite clear that Professor Grenyer made no decision about anything. All he did was to indicate what had occurred and pointed to what his role was. It is clear that Professor Grenyer did not have power to do what the applicant wanted, and he told her so. If it is accepted that the contents of Professor Grenyer's letter were in some way a reviewable decision or failure to make a decision, one would have to ask rhetorically what this Court could do about it. It could clearly not order him to do what he has no power to do.
The decision, to be reviewable, also has to be a decision to which the Act applies, that is a decision of an administrative character made under an enactment. An enactment means an Act or a statutory rule. No Act or statutory rule has been identified as being the Act or statutory rule pursuant to which Professor Grenyer made his "decision" or refused to make a decision. I am not satisfied, in the circumstances, that anything actually said by Professor Grenyer in the identified letter amounts to a reviewable decision under the Act.
A further aspect of the applicant's originating application is the relief claimed. For the moment, I will deal only with the claim for damages. The Act, s 27, sets out the powers of the Court when dealing with an application for review. The Court has no power to order a respondent to an application for judicial review to pay damages. That part of the applicant's originating application therefore has no prospect of success at all.
It was apparent from her oral submissions generally, and indeed the contents of the originating application itself, that what the applicant was seeking was to have overturned, for various reasons, the decisions made by the National Board through its committees in respect of her applications for registration in various States, the recognition by order of this Court of her academic qualifications from the United States of America, and unconditional registration by order of her as a psychologist, at least in Tasmania. As such, on the face of it, the applicant's originating application sought review of decisions made in three States about her professional qualifications going back some years.
The bases for that review process were effectively that, at each stage of the process the applicant had undertaken to gain unconditional registration as a psychologist in Australia, representatives of the National Board and the regional bodies, being committees of the National Board, had got things wrong, and, in particular, had failed to abide by various international conventions relating to the recognition of overseas professional qualifications.
In her oral submissions made on 9 June 2016, in the course of my attempting to have the applicant identify with precision the decision which she sought to have reviewed, the applicant submitted that the decision Professor Grenyer made constituted a breach of the rules of natural justice (by reference to the Act, s 17(2)(a)) because Professor Grenyer had:
"within his authority the power to take into account a person who has completed 21 months of supervised practice and apply that towards … ."
After some discussion with the applicant it was apparent she was interpreting Professor Grenyer's letter in a way which was not obvious on its face. For example, she insisted that he had said he was not going to consider her application for special consideration because her degrees were in deficit. With respect, he said no such thing.
The applicant then submitted, by reference to s 17(2)(b), that the procedures required by law to be observed relating to the decision said to have been made by Professor Grenyer had not been observed. The applicant submitted:
"That he's rejected making a decision but under the international law, under WTO and Unesco and the Lisbon and the Bangkok and the Tokyo Conventions he has been given that authority under international law to correct errors that have been made by his agency.
So, he's claiming he doesn't have the power, but he does have the - … ."
The applicant also submitted that she relied on the Act, s 17(2)(f), relating to there having been an error of law. The applicant asserted that error of law involved a breach of the international laws governing two matters, firstly recognition of overseas qualifications, and secondly the authority to allow a professional to practice at the level awarded from the originating country.
The applicant also submitted she would rely on the Act, s 17(2)(g), namely that the asserted decision was induced or affected by fraud. No further submission underpinned that.
These submissions concluded on 9 June. The matter was then adjourned to 15 June to allow the applicant to more specifically identify the various conventions and authorities that she had referred to, and identify specific parts of relevance. The applicant responded by filing a document on 10 June and then continued her oral submissions by reference to that and generally when the hearing resumed on 15 June.
In the document filed on 10 June 2016, the applicant submitted in par 1 that an untrained and unskilled administrator in a government agency could not simply declare her degrees to be all research-based, and only equivalent to undergraduate qualifications, when all other evidence stated the opposite. The applicant pointed to a decision made in South Australia to the effect that the South Australian Board confirmed that what she had done in the United States was equivalent to certain qualifications in Australia. She also submitted in the same paragraph that Professor Grenyer, in giving the response that he did in his letter of 14 December 2015, was negligent in respect of his obligations to affirm the South Australian decision.
As counsel for the respondents pointed out, that submission perhaps underpinned the applicant's misconception of the system which exists in Australia for the recognition of overseas qualifications, and the interrelationship between that recognition and registration requirements in each State. Counsel for the respondents took the Court to annexure D to the affidavit of the applicant filed in support of her originating application. That was a document entitled "Overseas Qualification Assessment Advice" under the heading "Government of Western Australia, Department of Training and Workplace Development". The document is dated 22 June 2012. The document states:
"On the basis of advice provided by the Australian Education International-National Office of Overseas Skills Recognition (AEI-NOOSR) for qualifications from United States of America.
· The Degree, Bachelor of Science is assessed as comparable to the educational level of an Australian BACHELOR DEGREE.
·
Important Note
This assessment is issued on the basis of certified copies of the originals. This assessment does not constitute an endorsement of the authenticity of the documents presented."
At the bottom of the notice it is further stated:
"This assessment is a guide to the comparability of the educational level of the overseas qualifications in Australian terms. Acceptability for employment, membership of a professional body, occupational registration or further study purposes is a matter for the respective authorities in Australia to determine. This assessment advice may assist in this regard."
Counsel for the respondents submitted that the various treaties and conventions to which the applicant referred dealt with the issue of recognition of qualifications somebody had from overseas, in the sense that, if someone says they have qualifications, and it can be proved they do, Australia will recognise that fact. However, when it came to recognising those qualifications for a particular purpose, such as registration to allow a person to practice in a particular profession, that was a matter for Australian authorities to determine. Counsel handed up an extract from a website to which the applicant referred in her material filed 10 June 2016. The extract provided as follows:
"Australia has a long established system of qualifications recognition. Australia is party to the UNESCO Lisbon Recognition Convention and Asia Pacific Recognition Convention (or Tokyo Convention). Under these conventions, we are the National Information Centre for qualifications recognition in Australia. In this capacity we develop qualifications recognition policy and provide information and advice about:
·the Australian education system, to promote the recognition of Australian qualifications in other countries; and
·overseas education systems to facilitate the recognition of overseas qualifications in Australia.
We fulfil our role by engaging domestically and internationally, and delivering a range of information services and programmes including:
·representing Australia in UNESCO regional recognition fora including the ENIC-NARIC network and the Regional Committee on the Recognition of Qualifications in Higher Education in Asia and the Pacific
·supporting Australian Government to overseas government engagement in multilateral and bilateral fora
·policy advice and information on how overseas qualifications compare with qualifications on the Australian Qualifications Framework through
· the Country Education Profiles publication
· professional development
· qualification assessments.
·policy advice and information on the Australian education system through the Australia Country Education Profile publication
·policy support to professional assessing authorities under the general skilled migration programme
·Policy support to state and territory governments
·policy support for the Australian Qualifications Framework.
Note that the Qualifications Recognition Policy Unit in the department has had previous names prior to 2014 including 'AEI-NOOSR', 'NOOSR' and the 'National Office of Overseas Skills Recognition' which we no longer use as our focus and some of our functions have changed. For more information about how qualifications recognition works in Australia, see Who can assess my qualification?"
The extract then dealt with "Qualifications Recognition", and under a sub-heading "For specific occupations" it provided:
"Occupations that require specialised knowledge and skills in Australia have registration, licensing, professional membership or other industry requirements that must be met before you can start working. We do not assess qualifications for these purposes because in Australia, there are authorities responsible for these occupations. Information on occupational requirements and responsible authorities can be found on the Department of Immigration and Border Protection's Australian Skills Recognition Information."
Counsel for the respondents then submitted:
"Your Honour, that is the critical point, with great respect to Professor Pardo, that she has overlooked in all of her efforts to obtain registration in this country and more recently in Tasmania. It is for the Psychology Board of Australia through its delegates in Western Australia or Tasmania – most recently, of course, here in Tasmania – to determine the equivalency – the sufficiency of equivalency – of her qualifications to the qualifications required for registration in this country.
That is not vested in any central organisation under any treaty or convention. There has been no dispute about the recognition at any stage of her qualifications as such. There's never been any question that Doctor Pardo – Professor Pardo holds the degrees that she claims to hold. The question is to what extent is the underlying course – or are the underlying courses of study by which she obtained those degree equivalent to what is required in Australia to obtain the same sorts of qualifications that then make her qualified and/or eligible under ss52 and 53 of the national law for registration he re.
The Australian Government has vested the power to make those determinations, the jurisdiction over all of them, in the national boards – in this case, the Psychology Board – not in organisations such as NOOSR or the Australian Government Department of Education and Training, as it now is. It is that shortcoming – … ."
The applicant in par 2 of her document filed 10 June also submitted that:
"The negligence of the Psychology Board of Australia and the AHPRA regardless of their title. Role, as agencies mandated by the Australian Government to assess professional overseas qualifications, comes under the regulations of the World Trade Organisation, UNESCO and the UN declaration of Human Rights, the Lisbon, Tokyo and Bangkok Conventions. Specifically: … ."
The applicant then listed a number of matters and attached extracts from various websites. None of the material to which the applicant referred mandated that any relevant Australian entity must accept any overseas qualifications as equivalent to Australian ones for the purpose of obtaining registration as a practising professional. Australian entities will recognise the existence and validity of certain overseas qualifications as they have done in the case of the applicant. However, as submitted by counsel for the respondents, it does not automatically follow that such qualifications will be accepted for registration purposes without, as has happened in the applicant's case, the applicant being required to undergo a period of supervision and some extra coursework.
As the applicant pointed out, in South Australia, the regional committee of the National Board accepted an assessment prepared by AEI-NOOSR of her qualifications. In Western Australia, the relevant entity did not accept the assessment, but referred the issue to Curtain University for review. As a consequence, Western Australian authorities did not accept the assessment without more. That is one of the applicant's complaints.
At the conclusion of her submissions on 15 June, and before counsel for the respondents spoke in reply to the document filed by the applicant on 10 June and generally, the applicant was specifically invited to consider addressing the relevant factors in s 38. She made no further submissions.
Conclusion
In the course of the hearing of this matter, and given the contents of the applicant's originating application and the affidavits she relied on, and the submissions made by counsel for the respondents in support of the application pursuant to s 38, I sought to have the applicant identify just what decision, conduct leading to a decision, or failure to make a decision she sought to have reviewed. Ultimately she identified Professor Grenyer's letter extracted at [22] and a number of bases for her position by reference to s 17(2).
The applicant's submissions otherwise were directed to attempting to persuade me that various entities had made wrong decisions about her qualifications, and this Court should correct that. The applicant's originating application clearly says that is what the applicant wants this Court to do.
Even allowing for what the applicant has now identified as the basis for her originating application, there are fundamental problems with her approach. Firstly, Professor Grenyer's letter, in my view, does not contain a reviewable decision, nor does it contain a refusal to make a decision he had power to make.
Secondly, this Court does not have the power by reference to the Act, to make the orders sought by the applicant in her originating application. I accept the submission by counsel for the respondents by reference to the authorities referred to in his written submissions, that it is not the role of this Court to be reviewing the applicant's professional qualifications and determining whether they qualify her for registration as a psychologist.
By reference to the criteria outlined in s 38, I accept, having regard to what I have summarised above, that there is no reasonable basis for the applicant's originating application or the claims for relief she particularises there. I also accept that, in those circumstances, it would be inappropriate for the proceedings initiated by the applicant to be continued. I do not make specific findings as to the matters referred to in s 38(1)(c) and (d) because it is apparent that the applicant, in the words of counsel for the respondents, is "fixated" on a particular position she is taking which is based on a fundamental misconception of how the system of professional accreditation and registration in Australia functions.
Given my comments, the only appropriate outcome of this application is dismissal of the originating application. Given the applicant's approach, a stay will not advance the matter.
Outcome
The application by the first and second respondents is granted.
The originating application of the applicant filed 28 January 2016 is dismissed.
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