SHABIER SHABOODIEN and DENTAL BOARD OF WESTERN AUSTRALIA

[2009] AATA 473

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 473

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2008/2570

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHABIER SHABOODIEN

Applicant

And DENTAL BOARD OF WESTERN AUSTRALIA

Respondent

DECISION

Tribunal Mr S Penglis, Senior Member

Date26 June 2009

PlacePerth

Decision

1.    Pursuant to section 31(2) of the Mutual Recognition Act 1992 (Cth), as adopted in New South Wales by the Mutual Recognition (New South Wales) Act 1992 and in Western Australia by the Mutual Recognition (Western Australia) Act 2001, the Tribunal hereby declares that the activities involved in the occupation of “orthodontist” in Victoria are not substantially the same as the activities involved in the occupation of “dentist” in New South Wales and Western Australia even with the imposition of conditions”.

2.    Pursuant to section 31(2) of the Mutual Recognition Act 1992 (Cth), as adopted in New South Wales by the Mutual Recognition (New South Wales) Act 1992 and in Western Australia by the Mutual Recognition (Western Australia) Act 2001, the Tribunal hereby declares that the activities involved in the occupation of Shabier Shaboodien as an “orthodontist” in Victoria are not substantially the same as the activities involved in the occupation of “dentist” in New South Wales and Western Australia even with the imposition of conditions”.

3.    Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision of the respondent dated 27 February 2008.  

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

Senior Member

CATCHWORDS

Mutual recognition – applicant registered in New South Wales as “dentist” (restricted to practice of orthodontics) as a result of the New South Wales Dental Board “mutually recognising” the applicant’s registration as an “orthodontist” in Victoria – registration as “orthodontist” in Victoria previously held by Tribunal not to be substantially equivalent to registration as “dentist” in Western Australia – submissions provided by Dental Board of New South Wales referring to specific provisions in Public Health Act New South Wales permitting “restricted dental practices” – no equivalent registration available under any legislation operating in Western Australia – held that applicant’s registration in New South Wales not substantially equivalent to registration as “dentist” (restricted to the practice of orthodontics) – Tribunal satisfied that declarations to that effect ought be made pursuant to s32(2) - the respondent’s decision not to mutually recognise the applicant’s registration in Victoria or the applicant’s registration in New South Wales is accordingly affirmed

LEGISLATION

Dental Practice Act, 2001 (NSW) ss.11(1) and 15

Health Professions Registration Act 2005 (Vic) s7

Mutual Recognition (Western Australia) Act 2001, ss.30(3 )and 31

Public Health Act,1991 (NSW), s 10AF

CASES

Cleary and Nurses Board of the Northern Territory (1996) 41 ALD 295

Sande and Registrar, Supreme Court of Queensland and Anor (1996)134 ALR 560

Shaboodien and Dental Board of Western Australia [2009] AATA 455

Shaboodien and Dental Board of Western Australia [2009] AATA 456

Shakenovsky and the Dental Board of New South Wales (1999) 57 ALD 441

REASONS FOR DECISION

26 June 2009 Mr S Penglis, Senior Member       

Background

1. On 25 July 2007 the applicant was registered as an “orthodontist” in Victoria under s7 of the Health Professions Registration Act 2005 (“the Vic Act”).

2.       The applicant applied to have that registration mutually recognised in New South Wales, which resulted in:

(a)his deemed registration as a dentist (restricted to the practice of orthodontics) in New South Wales under the Dental Practice Act 2001 (“the NSW Act”) on 11 September 2007;

(b)his actual registration as a dentist in New South Wales under the NSW Act, subject to conditions that the applicant was “not registered to practice general dentistry” but was “registered to practice orthodontics”, on 5 October 2007.

3.       The applicant applied under the Mutual Recognition (Western Australia) Act 2001 (“the MR Act”) to have his registration in Victoria (as an orthodontist) and in New South Wales (as a dentist restricted to the practice of orthodontics) mutually recognised.

4.       By letter dated 27 February 2008, the respondent informed the applicant that his two applications had been refused and provided the following reasons:

“Your first application was for registration as an orthodontist in Western Australia by way of mutual recognition of your registration as an Orthodontist in Victoria.  The Board has refused this application on the ground that there is no occupation under the Dental Act 1939 (WA) in which the Board could register you which is equivalent to the occupation of orthodontist in which you are registered in Victoria, so as to satisfy the requirements of the Mutual Recognition Act 1992 (Cth). Further, the Board has no power under neither the Mutual Recognition Act 1992 (Cth) nor the Dental Act 1939 (WA) to impose conditions on registration as a dentist in WA so as to confine your practice to orthodontics and, thereby, to achieve equivalence with the occupation in which you are registered in Victoria.

Your second application was for registration as a dentist in Western Australia by way of mutual recognition of your registration as a Dentist in New South Wales.  The Board has refused this application on the ground that, at the time of your application, your registration in New South Wales as a Dentist was a deemed registration under the Mutual Recognition Act 1992 (Cth) 1992 which, by virtue of section 25(3) of that Act, cannot provide the basis for registration by mutual recognition.

The Board notes that you have provided further information regarding your second application.  You have advised that on 5 October 2007 the Dental Board of New South Wales granted your application for mutual recognition of your Victorian registration by registering you as a dentist subject to the condition that you confine your practice to orthodontics.  Your registration as a Dentist in New South Wales, therefore, is no longer a deemed registration and an application for mutual recognition is no longer precluded by s 25(3) of the mutual Recognition Act 1992 (Cth).

Despite the additional information, the Board has decided that there is no occupation under the Dental Act 1939 (WA) in which the Board could register you which is equivalent to the occupation in which you are registered in New South Wales, namely the occupation of a dentist limited by condition to the practice of orthodontics.  Nor could the Board achieve equivalence by the imposition of conditions upon registration as a dentist in WA.  As there is no equivalent occupation in WA, your second application also does not satisfy the requirements of the Mutual Recognition Act 1992 and the Board has determined to refuse the application.”

5.       That is the reviewable decision the subject of this application.

The Tribunal’s First Reasons for Decision

6.       In Shaboodien and Dental Board of Western Australia [2009] AATA 455, I

· identified the proper construction and approach as to the requirements of equivalence of occupation under the MR Act: see [16];

·     noted that the applicant’s registration in Victoria was as an “orthodontist”, not as a “dentist”,  and that there is no equivalent occupation in Western Australia: see [24];

·     found that, prima facie, there appeared to be no reason why the applicant’s New South Wales registration as a dentist could not be mutually recognised in Western Australia, with the same conditions that are imposed upon him in New South Wales being imposed upon him in Western Australia pursuant to section 29(1) of the MRA: see [30];

·     concluded that the proper disposition of the matter required me to provide the parties an opportunity to provide further written submissions, limited to:

(a)     whether I may look behind the New South Wales registration;

(b)     if I may, what conclusions should I form;

(c)may I and, if I may, should I conclude that the registration was granted in error: see [38].

The Tribunal’s second Reasons for Decision

7.       After receiving written submissions on behalf of the respondent and from the applicant, in Shaboodien and Dental Board of Western Australia [1999] AATA 456, I:

· held that there was nothing in the MR Act which allowed a local registration authority or the Tribunal to go behind the registration in the first State to consider whether or not it is correct;

· considered whether the Tribunal should make a declaration pursuant to section 31 of the MR Act to the effect that the occupation of “orthodontist” in Victoria is not equivalent to the occupation of “dentist” in New South Wales;

·     made directions for the filing of further submissions in regard to this point, notifying the New South Wales Dental Board (“the NSW Board”) of the matter and providing to it an opportunity to provide written submissions.

Written Submissions Provided by the Dental Board of New South Wales

8.       In written submissions provided to the Tribunal, the NSW Board made the following submissions:

“1.The Tribunal has correctly stated that there is no definition of Dentistry in the Dental Practice Act (NSW).  However, the Tribunal has not been advised that the definition of dentistry (“restricted dental practices”) is to be found in Public Health Act NSW at Section 10AF.  That section includes those restricted dental practices that are practised by orthodontists.  (See S10AF “restricted dental practices” (b), (c), (d).).

2.The Mutual Recognition Act (MRA) Section 23(1)(c) provides that:

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

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

The Board advises the Tribunal that it formed the opinion that an equivalence of occupation could be achieved by placing conditions on the registration of the orthodontist from Victoria who had applied for registration as a dentist in NSW and subsequently had applied for the specialist description of “orthodontist”.

The conditions placed pursuant to Section 15 Dental Practice Act (NSW) have the effect that the dentist can only practise orthodontics.  The treatments provided by orthodontists are restricted dental practices (supra).

The Board is of the opinion that where conditions cannot be placed to achieve equivalence it cannot grant registration to Victorian registered specialist.  The Board has therefore declined to register a prosthodontist registered in Victoria.

The Board attaches a detailed opinion from the NSW Crown Solicitor which has formed the basis of its decision.

The Board does not wish to make any further submission.”

9.       The opinion from the New South Wales Crown Solicitor’s Office referred to in the NSW Board’s submissions (“Opinion”) is dated 10 January 2008 – that is subsequent to the New South Wales Dental Board’s registration of the applicant in New South Wales – and in which the advice provided is summarised therein as follows:

“1.1     Please note this is a summary of the central issues and conclusions in my advice.  Other relevant or significant matters may be contained in the advice, which should be read in full.

1.2The two important elements of the Mutual Recognition Act 1992(Cth) (“MR Act”) concentrate on the system of registration in the relevant second State and the person seeking mutual recognition’s ability to carry on an “equivalent occupation’ in the second State.

1.3There is a system for registering dentists in New South Wales pursuant to the Dental Practice Act 2001 (“the DP Act”). In my view, the Dental Board of New South Wales (“the Board”) is not required to register a person who is registered as a specialist in Victoria (who is not eligible to practise general dentistry as part of that registration) as a dentist in New South Wales ie a person engaged in general dentistry work. Those two occupations are not, in my view, equivalent occupations and equivalency cannot be achieved by the imposition of conditions.

1.4While it is not free from doubt and further judicial consideration may be of assistance, it is arguable on the current state of case law that the DP Act provides a system for the registration of specialists, despite the fact that the Board does not register specialists per se. The sole decision that I am aware of on this point, Shakenovsky v The Dental Board of New South Wales [1999] 57 ALD 441 (“Shakenovsky”), could be distinguished on its facts in the circumstances discussed in this advice, as it concerned a person already registered as a dentist.

1.5Assuming that there is a system of registering specialists as a separate occupation in New South Wales (and there is some evidence that this occurs in practice), whether the Board is required to register a Victorian specialist (who is not eligible to undertake general dentistry work) as a dentist in New South Wales (who is restricted to practising in a speciality) will be determined on the facts of each matter. A consideration of the activities of the Victorian specialist and the activities of a dentist in New South Wales who is restricted to practising in a speciality is required to determine whether there is equivalency in the occupations. This consideration also requires the Board to determine whether there are any conditions which could be imposed to achieve equivalency.

1.6In terms of conditions which can be imposed by the Board if registering one of these Victorian specialists, the Board may impose conditions:

1.        to achieve equivalency;

2.to replicate (perhaps with some local context, if relevant) conditions that apply to the person’s registration in Victoria;

3.Any other conditions, as long as those conditions are not to be more onerous than the Board would impose upon an applicant for direct registration (for example) having regard to that person’s relevant qualifications and experience, unless 1 or 2 above apply.

1.7If the Board finds itself a party to an application for a review of a decision made by it before the Administrative Appeals Tribunal (AAT), it may be worthwhile to consider seeking a declaration from the AAT, in an appropriate case, as to either whether the applicant is or is not entitled to registration in New South Wales or whether two occupations are equivalent.”

10.     In a short written submission the applicant essentially referred to and adopted the views expressed by the NSW Board as being the correct approach to be taken in the matter.

11.     Written submissions were lodged on behalf of the respondent.  I reproduce a substantial portion of those submissions as they conveniently (and accurately) summarise relevant parts of the Opinion provided by the Crown Solicitor’s Office:

“Applicant’s registration in NSW

(a)       Equivalence of occupations

4.The NSW Dental Board’s submissions lodged 15 May 2009 point to a definition of “restricted dental practices” in section 10AF of the Public Health Act NSW as a definition of dentistry. The definition in section 10AF(4) states:

‘restricted dental practice means any of the following practices:

(a)the performance of any operation on the human teeth or jaws or associated structures;

(b)the correction of malpositions of the human teeth or jaws or associated structures;

(c)the performance of radiographic work in connection with the human teeth or jaws or associated structures;

(d)the mechanical construction or the renewal or repair of artificial dentures or restorative dental appliances;

(e)the performance of any operation on, or the giving of any treatment or advice to, any person that is preparatory to or for the purpose of the fitting, insertion, adjusting, fixing, constructing, repairing or renewing of artificial dentures of restorative dental appliances.’

5.        The NSW Board’s submissions state that the Board –

‘formed the opinion that an equivalence of occupation could be achieved by placing conditions on the registration of the orthodontist from Victoria who had applied for registration as a dentist in NSW and subsequently had applied for the specialist description of “orthodontist”’.

6.    The NSW Board’s submissions state that the treatments provided by orthodontists are restricted dental practices (within the meaning of section 10AF of the Public Health Act NSW).

7.    The NSW Board’s submissions attach an opinion it received from the NSW Crown Solicitor (Opinion) and states that this Opinion formed the basis of its decision to register the applicant. The respondent submits that the NSW Board’s decision to register the applicant is inconsistent with the advice set out in the Opinion to the NSW Board for the reasons set out below.

8.    The Opinion states that the two central requirements of the mutual recognition scheme are:

8.1 a system of registration in the second State; and

8.2the ability of a person to carry on an “equivalent occupation” in the second State.

(a)       System of registration

9.In considering the issue of whether there is a system of registration in NSW, the Opinion states that it is clear that there is a system of registration for dentists and that the issue is whether the NSW Act provides for a system of registration of dental specialists.

10.The Opinion refers to Shakenovsky v The Dental Board of New South Wales [1999] 57 ALD 441 on the issue of whether the NSW Act provides a system of registration of dental specialists. In Shakenovsky, the AAT held that there was a ‘system of registration’ for dental specialists in NSW and that this was constituted by the entry of particulars mandated under section 12(1)(e) of the then Dentists Act 1989 and that entry of those particulars required approval by the Board.

11.The Opinion states, at paragraph 5.11, that the 1989 Act has been replaced by the NSW Act but that the NSW Act provides a similar system for entering particulars for specialists as the 1989 Act.

12.The Opinion, at paragraph 5.12, then states that if the approach in Shakenovsky is followed then it could be argued that the NSW Act provides a system for the registration of dental specialists in NSW for the purposes of the Mutual Recognition Act.

13.Shakenovsky dealt with an application for registration as a dental specialist in NSW by mutual recognition of the applicant’s specialty in Victoria but in circumstances where the applicant was already registered as a dentist in NSW. The Opinion states at paragraph 5.24 and 5.25 –

‘5.24As you can see, this area is not free from doubt. On the current state of the case law, it seems that there is provision for the registration of a specialty as a separate occupation. However, as noted above, the factual basis of that decision is quite different to the situation the Board is currently faced with and I think it is certainly arguable that Shakenovsky could be distinguished on its facts.

5.25However, on balance and in the absence of further judicial consideration of this issue it seems arguable that there is a system of registration for specialists (despite the Board not registering specialists as such) under the DP Act [NSW Act] such as to enliven the provisions of the MR Act.”

14.On the basis of this advice and the decision in Shakenovsky, it is unclear whether there is even a system of registration of dental specialists in NSW independent of the system of registration of general dentists. The NSW Dental Board have proceeded on the assumption that this system of registration for dental specialists exists despite the different and, arguably, distinguishable factual circumstances. 

(b)      Equivalent occupation

15.The Opinion then considers whether a Victorian specialist is an equivalent occupation to either a dentist (without any speciality) or an occupation of a particular dental specialist in NSW (if it could be successfully argued that there are equivalent occupations relating to dental specialties in NSW for the purposes of mutual recognition).

16.With respect to registration as a dentist, the conclusions in the Opinion are that:

16.1a general dentist in NSW “encompasses activities far more extensive than that of a Victorian (sic) specialist” (see paragraph 5.36); and

16.2imposing conditions upon a Victorian specialist’s registration as a dentist in NSW to achieve equivalence “would be to prevent the person from performing general dentistry” and “it seems an absurd result that the very essence of an occupation (i.e. the general work undertaken by a dentist) has to be removed to enable the Victorian specialist to be registered in that occupation” (see paragraph 5.38).

17.With respect to registration as a specialist, paragraph 5.42 of the Opinion deals with the argument for recognising a system of registration of dental specialists for the purposes of mutual recognition.

18.The Opinion, however, does not then actually consider the issue of whether an orthodontist registered in Victoria is an equivalent occupation to a dentist restricted to the specialisation of orthodontics in NSW. The Opinion states that –

18.1‘[t]he Board has registered Victorian specialists who specialise in orthodontics since the commencement of the HPR Act. I am instructed such persons have been registered as general dentists but conditions placed on their registration limiting their activities to the practice of orthodontics’ (at paragraph 5.43); and

18.2‘I understand in the field of orthodontics, for example, the activities of the Victorian specialist has been considered to be equivalent to a dentist in New South Wales whose practice is restricted to orthodontics. In other words, conditions were able to be imposed on the registration in New South Wales to achieve equivalency’ (at paragraph 5.45).

19.The respondent submits, first that, as stated above, there is no system of specialist registration in NSW as Shakenovsky is distinguishable. In NSW, a specialist can only have the particulars of specialisation entered on the Register of Dentists after registration as a dentist. Registration as a specialist is not a separate system to registration as a dentist.

20.Secondly, the respondent submits that there is nothing in the Opinion to suggest that the occupation of dentist restricted to the specialisation in NSW is equivalent to the occupation of orthodontist in Victoria. The respondent maintains its earlier submission that these are not equivalent occupations for the purposes of mutual recognition.

Imposition of conditions by NSW Board under section 15 of the Dental Practice Act (NSW)

21.The NSW Board’s submissions state that the conditions placed upon the applicant pursuant to section 15 of the Dental Practice Act (NSW) (NSW Act) have the effect that the dentist can only practise orthodontics. Section 15(2) only provides for the imposition of conditions in the specific circumstances set out in section 15(1) which are if:

‘(a)the Board is of the opinion, following an inquiry under Schedule 1, that the person is not competent to practise dentistry or suffers from an impairment, or

(b)the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside the State, and the Board is of the opinion that the circumstances of the offence are such as to render the person unfit in the public interest to practise dentistry, or

(c)the person’s registration under a health registration Act has been cancelled or suspended because of conduct that would (if the person were a registered dentist)  authorise cancellation or suspension of the person’s registration under this Act, or

(d)the person’s registration or certification under a dentists registration law has been cancelled or suspended because of conduct that would (if it occurred in New South Wales and the person were a registered dentist) authorise cancellation or suspension of the person’s registration under this Act.’

22.The only possible circumstance in section 15(1) of the NSW Act that could form the basis for the imposition of conditions on the applicant pursuant to section 15(2) is that the applicant is not competent to practise dentistry (contained in paragraph (a)).

23.Conditions can be imposed by the NSW Board on the basis that the applicant is not competent to practise dentistry following an inquiry by the Board under Schedule 1 of the NSW Act. This is an inquiry which can be conducted, if necessary, where a person has applied for registration under the NSW Act, and not under the Mutual Recognition Act. On this basis, the respondent submits that the NSW Board does not have power to impose conditions on the applicant under section 15 of the NSW Act.

Shakenovsky

12.     The decision of this Tribunal in Shakenovsky and Dental Board of New South Wales (1999) 57 ALD 441 concerned the refusal by the NSW Board to enter particulars on its register of dentists describing the applicant in that case as an oral and maxillofacial surgeon under the provisions of the MR Act. The applicant in that case was a registered dentist in Western Australia who had the further registration in that State as a specialist in oral and maxillofacial surgery. He obtained similar registrations in Victoria. The NSW Board had adopted a policy which required applicants seeking the description of oral and maxillofacial surgeon to not only have a specialist dental recognition, but also medical qualifications.

13.     Deputy President McMahon of this Tribunal set aside the decisions under review finding that there was an equivalence of occupations between those practising as oral and maxillofacial surgeons in the other States and those in New South Wales, noting that whilst the mutual recognition legislation model may result in the “lowest common denominator” standing for registration, that is nevertheless the effect of the legislation.

14.     For the reasons expressed in the advice from the Crown Solicitor’s office, and repeated on behalf of the respondent, whilst I have had careful regard to that decision, I do not consider it to be determinative of the application before me.  In this regard I respectfully refer to and adopt the observations made by the Crown Solicitor’s Office at paragraphs 5.15 to and including 5.19 of the Opinion, which were in the following terms:

“5.15From a factual perspective, the situations are quite different. Mr Shakenovsky was registered as a dentist in New South Wales in 1996. After registration, he sought specialist description as an oral and maxillofacial surgeon.  After consideration by the Board of his qualifications and experience, Mr Shakenovsky was granted the specialist description of “oral surgeon” in 1997. He then applied under the MR Act for registration as a dentist and oral and maxillofacial surgeon in Western Australia. This was granted in 1998. Shortly afterwards, Mr Shakenovsky then made an application under the MR Act to seek entry in the NSW register of his status as an oral and maxillofacial surgeon. The refusal by the Board to grant that application was one of the matters before the AAT. A second application was also the subject of review by the AAT. Mr Shakenovsky had achieved direct registration as a specialist in the Oral and Maxillofacial Surgery specialist branch of dentistry with the Dental Board in Victoria in 1999 (the relevant Victorian Act at the time providing for registration of specialities in that State). He then made an application under the MR Act to the Board seeking entry in the register of his speciality of Oral and Maxillofacial Surgeon. This application was also refused by the Board.

5.16It was not in issue in the matter that Mr Shakenovsky sought registration as a dentist as he was already a dentist registered in New South Wales. The issue was whether he could be registered as a specialist (ie for specialist details entered on the Register) and therefore, Deputy President McMahon’s finding that the relevant occupation, for the purposes of the MR Act, was that of an oral and maxillofacial surgeon and not that of a dentist, should, in my view, be read in the context of the particulars facts of the matter.

5.17The provision that Deputy President McMahon relied upon to find that there was a system of registration so as to enliven the provisions of the MR Act was s.12(1)(e) of the 1989 Act. As stated above, that provision mandated the entry of certain particulars on a Register, in relation to a dentist.  ‘Dentist’ was defined in s.3 of that Act as meaning ‘a person registered, or taken to be registered, as a dentist’ under that Act. In my view, the recording or entering of particulars relating to specialities and other matters, does not occur in isolation of a person being registered as a dentist. In other words, those particulars are entered in relation to a dentist and a dentist was, under the 1989 Act, a person registered or taken to be registered under that Act.

5.18The provisions of cl.22(2) of Sched. 1 of the DP Act are to a similar effect. That is, the particulars which the Board must include on the Register of Dentists relate to a registered dentist and relate to, for example, particulars of specialist practice which the Board has approved the dentist using.

5.19The situation which the Board is potentially now faced with is one where a person registered as a specialist in Victoria (who is not able to carry out general dentistry work) may seek registration in New South Wales to undertake work which may or may not involve general dentistry work. Unlike Mr Shakenovsky, and the others given specialist recognition since that case, those persons will not already be registered (and potentially not eligible to be registered) as a dentist in New South Wales. If those circumstances came before a court or tribunal, one may well find a different result to that in Shakenovsky.”

Section 10AF of the Public Health Act 1991 (NSW) and section 15 of the Dental Practice Act 2001 (NSW).

15.     In its written submissions the NSW Board referred to statutory provisions to which the Tribunal was not previously referred in this matter.

16.     The first is section 10AF(1) of the Public Health Act.  It relevantly provides as follows:

“10AF  Restricted dental practices

(1)A person must not carry out a restricted dental practice unless the person is:

(a)a registered dentist, or

(b)a registered medical practitioner, or

(c)a registered dental student undertaking clinical studies, or undertaking a clinical placement at a public health organisation, or

(d)a registered dental auxiliary who is carrying out dental auxiliary activities subject to the practice oversight of a registered dentist, or

(e)a person performing radiographic work at a public health organisation, or on the order or at the request of a registered medical practitioner or registered dentist, or

(f)a dental prosthetist carrying out a practice of dental prosthetics, or

(g)a dental technician carrying out technical work on the written order of a registered dentist or of a dental prosthesis.

17.     Section 10AF(4) relevantly provides that:

(4)     In this section:

…

restricted dental practice means any of the following practices:

(a)the performance of any operation on the human teeth or jaws or associated structures,

(b)the correction of malpositions of the human teeth or jaws or associated structures,

(c)the performance of radiographic work in connection with the human teeth or jaws or associated structures,

(d)the mechanical construction or the renewal or repair of artificial dentures or restorative dental appliances,

(e)the performance of any operation on, or the giving of any treatment or advice to, any person that is preparatory to or for the purpose of the fitting, insertion, adjusting, fixing, constructing, repairing or renewing of artificial dentures or restorative dental appliances.

18. The second is section 15 of the NSW Act.  Section 15 provides as follows:

“15 Power to refuse or impose conditions on full registration

(1) The Board may refuse to register a person who would otherwise be entitled to full registration as a dentist if:

(a) the Board is of the opinion, following an inquiry under Schedule 1, that the person is not competent to practise dentistry or suffers from an impairment, or

(b) the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside the State, and the Board is of the opinion that the circumstances of the offence are such as to render the person unfit in the public interest to practise dentistry, or

(c) the person’s registration under a health registration Act has been cancelled or suspended because of conduct that would (if the person were a registered dentist) authorise cancellation or suspension of the person’s registration under this Act, or

(d) the person’s registration or certification under a dentists registration law has been cancelled or suspended because of conduct that would (if it occurred in New South Wales and the person were a registered dentist) authorise cancellation or suspension of the person’s registration under this Act.

(2) As an alternative to refusing to register a person under subsection (1), the Board may grant the person registration subject to conditions if the Board considers that refusal of registration is not warranted and that the person should be granted registration subject to appropriate conditions.

(3) Conditions of registration may relate to the duration of registration, the aspects of the practice in which the person may be engaged, and any other matters, as the Board thinks appropriate.

19.     I am of the view that the 2 sections identified by the NSW Board do not assist in the resolution of this matter. The fact that the work undertaken by an orthodontist is included in the work which section 10AF(1) prohibits being carried on unless the person is, inter alia, a registered dentist, does nothing more than to identify the reason why the applicant would require registration as a dentist in New South Wales in order to do in that State that which he does as an “orthodontist” in Victoria.

20. Moreover, I accept the submission advanced on behalf of the respondent that section 15 of the NSW Act is not what the NSW Board actually applied in this matter. First, as pointed put out on behalf of the respondent, section 15(1) requires the Board to form an opinion “following an enquiry under Schedule 1, that the person is not competent to practice dentistry or suffers from an impairment”. It appears that no such enquiry was undertaken by the NSW Board in this case..

21.     Secondly, section 15 only arises where the person “would otherwise be entitled to full registration as a dentist”. By section 11(1) of the NSW Act, a person is entitled to registration as a dentist “if the Board is satisfied that the person has necessary qualifications for registration as a dentist and is of good character”.

22.     There is no question of the applicant possessing the “necessary qualification for registration as a dentist” in New South Wales.

23.     Any conditions imposed must have been pursuant to the mutual recognition legislation in New South Wales. Either way, this distinction does not impact upon the ultimate disposition of this application

Analysis                 

24.     There is a fundamental and substantive difference between the system of registration in Victoria and the systems of registration in New South Wales and Western Australia. Indeed, the system in registration in Victoria may well be different from the systems of registrations in other Australian States or Territories, but I express no opinion with respect to other Australian States or Territories as I have received no information with respect to them.

25. In Victoria, the relevant legislation is the Vic Act. That legislation deals with health professionals generally and is not limited to “dentists”. By section 7 of the Vic Act, “the responsible Board may grant specific registration as a health practitioner to an applicant who has completed a course of study and then supervised practice in the health profession regulated by that Board that does not qualify that applicant for general registration …”.

26.     Subsection 7(1)(f) of the Vic Act specifically contemplates such a specific registration occurring “to enable an applicant to practice within a health practitioner speciality recognised by the Board if the applicant holds:

(i)qualifications in the health profession regulated by the Board obtained outside Australia that do not qualify the applicant for general registration; and  

(ii)specialist qualifications that are recognised by the Board”.

27. A Policy issued by the Dental Practice Board of Victoria, approved by the relevant Minister on 2 October 2007, describes how the Victorian Board implements the provisions of section 7(1)(f) of the Vic Act. By clause 12 of the Policy, the recognised specialities are:

·Dento-maxillofacial radiology

·Endontics

·Oral and maxillofacial surgery

·Oral medicine

·Oral pathology

·Orthodontics

·Paediatric dentistry

·Periodontics

·Prosthodontics

·Public health dentistry (Community dentistry)

·Special needs dentistry 

28.     The policy goes on to provide that for registration in, inter alia, orthodontics, Australian trained graduates there is a minimum 3-year post graduate specialist qualification appropriate to the speciality, accredited by the Australian Dental Council which generally includes clinical or surgical training approved by the peak body of the relevant specialty, or an equivalent confirmation of qualifications and experience. For graduates trained outside Australia the applicant must have certification by the Australian Dental Council as having equivalent to Australian specialist requirements.

29.     Accordingly, in Victoria a person can carry on the occupation of an “orthodontist” (and be registered as such) and such an occupation is quite separate and distinct from carrying on the occupation of a “dentist” (and any registration as such) .

30.     I find that that no such system of registration exists in either New South Wales or Western Australia. In those states, the only person who may lawfully carry out the work of an orthodontist is a registered “dentist”. There is within the scheme of registration of “dentists” a further scheme to recognise specialities within the general practice of dentistry. This is what Shakenovsky was concerned with. That is not what the applicant in this case is seeking to do.

31. It therefore follows that I am of the view that there is no equivalent occupation in New South Wales for the purpose of the MR Act to that of an “orthodontist” in Victoria. Whilst it is true that what a “dentist“ who is registered in New South Wales may perform work that a “orthodontist” may perform in Victoria, the occupations are not “equivalent” for the purpose of the MR Act when one has regard to the proper construction and approaches to the requirements of equivalence of occupations under the MR Act, as to which see [16] of the Tribunal’s first Reasons for Decision.

32.     I consider this result to be consistent with and fortified by this tribunal’s decision in Sande and Registrar, Supreme Court of Queensland and Anor (1996)134 ALR 560. In that matter the Full Tribunal (constituted by President Mathews J, Deputy President Green and Member Christie) refused to mutually recognise as a legal practitioner in Queensland a person who was a registered “conveyancer” in South Australia where the only persons who could then lawfully carry out conveyancing in Queensland were legal practitioners. The Tribunal’s decision was upheld by the Full Court of the Federal Court of Australia (1996) 134 ALR 5. Lockhart J, at 566, described the relevant part of the Tribunal’s findings as follows:

“The Tribunal also found that the occupation of conveyancer in South Australia was not equivalent to that of a solicitor in Queensland, and that the imposition of conditions … would not change the position.”

33.     The Full Federal Court upheld the finding of the Tribunal which was challenged on appeal, namely that “the occupation of conveyancer no longer existed in Queensland and thus it was not satisfied that there was an “occupation, trade, profession or calling” of conveyancer, within the meaning of the MR Act, in Queensland”. A careful reading of the reported decision of the Full Federal Court suggests that the applicant’s contention before the Tribunal that the applicant should be registered as a solicitor in Queensland was not persued on appeal.

34.     In the course of upholding the Tribunal’s decision, Davis J said [at p565]:

“The MR Act should be applied in a practical, commonsense manner, regard being had to the substance of the matter and to the substantial equivalence of occupation.”

35.     There are strong analogies between the applicant in Sande and the applicant in this case. Both held registrations in a State that entitled them to carry out a particular occupation in those States. In Sande, what the applicant could do as a “conveyancer” in Queensland could only be done by a “solicitor”” in Queensland, there being no separately recognised occupation as “conveyancer” in Queensland. The fact that “legal practitioners” in Queensland were those who in that State could perform what Mr Sande could perform in South Australia did not entitle him to registration as a “legal practitioner” in Queensland as the two occupations were not substantially equivalent.

36. In the same way, the applicant in this case is registered as an “orthodontist” in Victoria where such an occupation exists separate from “dentists”. The only people in New South Wales and Western Australia who can perform the work of an “orthodontist” are persons who are registered as ‘”dentists”. There is no separate occupation as “orthodontist” in either of those States. If anything, they are specialities which a registered “dentist” can undertake and be registered for. No one other than a “dentist” is entitled to any such registration. The fact that in New South Wales and Western Australia the work of orthodontists is performed by registered “dentists” does not result in a finding that the occupation of “dentist” in New South Wales and Western Australia is equivalent to the occupation of “orthodontist” in Victoria. Once that conclusion is reached, as I held in my first Reasons for Decision (and as an aside I note that the same view is expressed in the Opinion provided to the NSW Board from the Office of the New South Wales Solicitor-General), it is not a proper exercise to undertake under the MR Act to then seek to achieve equivalency by the imposition of conditions.

37. I am of the opinion that this result is not only consistent with a strict reading of the MR ACT but is also the product of a practical and commonsense reading and application of the MR Act.

Declaration

38. As I held in the Tribunal’s second Reasons for Decision, the fact that I do not agree with the NSW Board registration of the applicant as a “dentist” (limited to the practice of orthodontics) for the purpose of determining whether or not the applicant is entitled to have that registration mutually recognised in Western Australia does not of itself entitle me to deny the applicant’s prima facie right to have his registration in NSW mutually recognised in Western Australia. That may only occur if I make a declaration pursuant to 31(2) of the MR Act

39.     For the sake of convenience I reproduce in these Reasons for Decision paragraphs [10 to and including 13] of my second Reasons for Decision.              

Turning then to the respondent’s alternative submissions, section 31 of the MR Act gives the Tribunal power to make certain declarations. This power is in addition to the power given to it under the AAT Act to conduct a merit based review of the local registration authority’s decision with respect to a particular applicant. Section 31(1) enables the Tribunal to make an order with respect a particular person. Section 31(5) provides for the local registration authority involved in such a review “is to give effect to the decision on the review, and must thereafter act in conformity with the decision in relation to other persons seeking registration”. In other words, an order made by the Tribunal pursuant to section 31 (1) is not only binding on the parties to the review, but is also binding on the local registration authority with respect to other persons seeking registration.

There is nothing in section 31(1) which empowers the Tribunal to make an order of the nature referred to therein otherwise than by reference to the criteria described in the MR Act.

Section 31(2) gives the Tribunal power to, amongst other things, make a declaration that occupations carried on in 2 States are not equivalent if the activities involved in the occupations are not substantially the same (even with the imposition of conditions). If such a declaration is made, the Registrar or other proper officer of the Tribunal is to cause a notice setting out terms of the declaration to be published in the Commonwealth Government Gazette: section 31(3). Declarations made in this way then impact upon the operation of s29 of the MR Act (which sets forth the general principles to be applied when considering the issue of equivalence): see section 29(3).

If such a declaration is made, section 30(3) provides that it does not affect the registration of any person already registered “except in the case of a declaration made by the Tribunal in relation to that person specifically”.

40. I am satisfied that this is an appropriate case in which the Tribunal ought make a declaration pursuant to section 31(2) of the MR Act.

41.     Section 31(2) of the MR Act relevantly provides that on a review by this Tribunal “the Tribunal may make a declaration that occupations carried on in two States are not equivalent, but only of the Tribunal is satisfied that;

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

(b)…”.     

42.     It is apparent to me that this is an issue of general importance and not unique to this application. This conclusion is assisted by the fact that :

·     the  respondent urges the Tribunal to make such a declaration;

·     the NSW Board sought advice on the matter generally from the New South Wales Solicitor-General’s Office; and

·     The Opinion provide by the Office of the New South Wales Solicitor-General indicated that it was a matter which was “not free from doubt” and that where the NSW Board found itself a party to an application for a review of a decision before this Tribunal ”it may be worthwhile to consider seeking a declaration from the AAT, in an appropriate case, as to either whether the applicant is or is not entitled to registration in New South Wales or whether two occupations are equivalent”.                  

43.     In reaching my decision to make a declaration, I have had careful regard to what Deputy President McMahon of this Tribunal said in Cleary and Nurses Board  of the Northern Territory (1996) 41 ALD 295 where the Deputy President said as follows:

[48] “The consequences of making a declaration are set out in sub-sections (3), (4) and (5). Clearly the making of such a declaration affects interests other than those of a particular applicant. If any such declaration were to be contemplated by the Tribunal then, in my view, it would be incumbent upon the Tribunal to seek from the applicant evidence as to the views of others that might be affected. In the present circumstances, the various Nursing Associations would undoubtedly wish to be heard on the question whether the occupation of nursing as registered in this State is not equivalent to the occupation of nursing as registered in the Northern Territory.

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

44. In this case I have the views of both the NSW Board and the respondent. I appreciate the gravity of making a declaration pursuant to section 31(2) of the MRA, but I am satisfied that it is not only appropriate, but that it is also in the public interest that a declaration to be made.

45.     The terms of the declaration will be as follows:  

Pursuant to section 31(2) of the Mutual Recognition Act, 1992 (Cth), as adopted in New South Wales by the Mutual Recognition (New South Wales) Act 1992 and in Western Australia by the Mutual Recognition (Western Australia) Act 2001, the Tribunal hereby declares that the activities involved in the occupation of “orthodontist” in Victoria are not substantially the same as the activities involved in the occupation of “dentist” in New South Wales and Western Australia even with the imposition of conditions”.

46.     I note that, as a result:

·by subsection 31(3) of the MR Act, the Registrar or other proper officer of the Tribunal must cause a notice setting out the terms of this declaration to be promptly published in the Government Gazette

·section 31(4) of the MR Act, which provides “the declaration made on the basis of paragraph (2)(b) has effect for no longer than 12 months, and the local registration authority must promptly notify appropriate authorities each other state in the Commonwealth of this “declaration”, does not apply as the declaration to be made is “on the basis of “ paragraph (1).

47. Section 30(3) of the MR Act provides “a declaration under this part does not affect the registration of any person already registered (except in the case of a declaration made by the Tribunal in relation to that person specifically)”. It is not clear to me precisely what needs to be included in a declaration for it to be held to be a declaration “made….in relation to that person specifically” . I would have thought that a declaration in terms of that which I have indicated will be made in the context of an application by the applicant would be sufficient to make it a declaration “made….in relation to (the applicant) specifically”.

48.     However, to avoid any doubt as to the matter, I will make a further declaration referring specifically to the applicant.  

49.     The terms of the further declaration will be as follows:  

Pursuant to section 31(2) of the Mutual Recognition Act, 1992 (Cth), as adopted in New South Wales by the Mutual Recognition (New South Wales) Act 1992 and in Western Australia by the Mutual Recognition (Western Australia) Act 2001, the Tribunal hereby declares that the activities involved in the occupation of Shabier Shaboodian as an “orthodontist” in Victoria are not substantially the same as the activities involved in the occupation of “dentist” in New South Wales and Western Australia even with the imposition of conditions”.

50. It therefore follows that, having regard to the declarations to be made , whilst they do not affect the registration of other persons already registered, they, alternatively the second of them, apply so as to enable me to properly conclude that the applicant is not entitled under the MR Act to have his registration in New South Wales mutually recognised in Western Australia.

51.     Given that, and given my earlier finding that the applicant was not entitled to have his occupation in Victoria mutually recognised in Western Australia, it follows that, albeit by a different path, the reviewable decision is to be affirmed.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Penglis 

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

Date/s of Hearing  Decided on papers 
Date of Decision  26 June 2009
Applicant   Self- represented
Solicitor for the Respondent    Talbot and Olivier