Shaboodien and Dental Board of Western Australia
[2009] AATA 456
•23 April 2009
Administrative Appeals Tribunal
DIRECTIONS AND REASONS FOR DECISION [2009] AATA 456
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2570
GENERAL ADMINISTRATIVE DIVISION ) Re SHABIER SHABOODIEN Applicant
And
DENTAL BOARD OF WESTERN AUSTRALIA
Respondent
DIRECTIONS
Tribunal Mr S Penglis, Senior Member Date23 April 2009
PlacePerth
Direction
1. Within 14 days of the date of this decision, the respondent do provide to the New South Wales Dental Board copies of the Tribunal’s two Reasons for Decision in this matter.
2. The New South Wales Dental Board shall have 28 days (or such further period as the Tribunal may direct upon application by the New South Wales Dental Board) to provide written submissions to the Tribunal (should it wish to do so) with respect to whether a declaration ought be made by the Tribunal pursuant to section 31(2).
3. In the event that the New South Wales Dental Board provides written submissions to the Tribunal, the applicant and respondent are to lodge with the Tribunal, providing copies to each other, any written submissions in response within 14 days of their respective receipt of the New South Wales Dental Board’s written submissions (copies of which will be provided to them by the Tribunal).
4. The submissions provided should also deal with how (if at all) any declaration which the Tribunal may make may impact upon the mutual recognition of the applicant’s New South Wales registration.
....(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 - registration as dentist (restricted to the practice of orthodontics) in New South Wales provisionally held substantially equivalent to registration as a “dentist” in Western Australia (with imposition of identical conditions) - consideration of whether the Tribunal may look behind the New South Wales registration to determine whether the registration was granted in error and, if so, with what consequences – held that the Tribunal has no power to go behind the New South Wales registration – consideration given to whether declaration ought be made pursuant to s31(2) of the MR Act and as to its effect – held that New South Wales Dental Board ought to be given notice and afforded an opportunity to be heard
LEGISLATION
Mutual Recognition (Western Australia) Act 2001, ss. 23(1), 29(1)) and 31
CASES
Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 176 ALR 305
REASONS FOR DECISION
23 April 2009 Mr S Penglis, Senior Member 1. By reasons for decision in this matter dated 10 February 2009 I found:
·There is no occupation in Western Australia equivalent to the occupation for which the applicant is registered in Victoria, namely “orthodontist”;
·The occupation in which the applicant has been registered in New South Wales is “dentistry”, albeit that the applicant’s registration is limited to the practice of orthodontics;
·Prima facie there appears to be no reason why the applicant’s New South Wales registration as a “dentist” cannot be mutually recognised in Western Australia, with the same conditions as are imposed upon him in New South Wales being imposed upon him in Western Australia under section 29(1) of the Mutual Recognition (Western Australia) Act, 2001 (“MR Act”). Registration would therefore be identical in both states.
2. I then stated as follows:
“That, however, is not the end of the matter. The reason for that is because, as has been noted in these reasons, the registration as a “dentist” in New South Wales is as a result of the mutual recognition by the New South Wales Dental Board of the applicant’s Victorian registration. A question therefore arises as to whether the applicant’s registration as a “dentist” in New South Wales is a registration to which he was lawfully entitled under the Mutual Recognition Act in New South Wales. A further question which arises is whether I am nevertheless obliged to recognise the applicant’s registration in New South Wales even if the New South Wales Dental Board erred in law in mutually recognising his Victorian registration in the manner which it did.
Am I entitled to go behind the New South Wales registration? If so, to what effect?
These are not issues upon which either party has made any submissions. Natural justice requires me to give both parties an opportunity to make submissions on those points. I therefore propose to make directions for the filing of further submissions before I finally dispose of this matter, unless I am otherwise able to dispose of the application on some other ground.”
3. After concluding that I was not otherwise able to dispose of the application on some other ground, I made directions for the filing of further written submissions (this matter having proceeded by way of written submissions only).
4. Written submissions were subsequently provided by the parties.
Respondent’s Submissions
5. The primary submission advanced on behalf of the respondent was as follows:
·The New South Wales Dental Board’s decision was an exercise of power under section 20(2) of the New South Wales equivalent of the MR Act to grant registration by way of mutual recognition.
·There is no occupation in New South Wales that is (or was at the time of the New South Wales Dental Board decision) “equivalent” to the occupation of “orthodontist” for the purpose of mutual recognition.
·The New South Wales Dental Board therefore erred in finding that there was an “equivalent” occupation in New South Wales.
·Consideration must be given to whether such error was as to a “jurisdictional fact”, “collateral fact” or “collateral issue”, referring to authorities such as General Principles of Administrative Law by (Butterworths, 4th Ed) Sykes, Lanham, Tracey and Esser at [403 - 414], R v Hickman; Ex parte Fox (1945) 70 CLR 598: Ex parte Wurth; Re Tully (1954) 55 SR(NSW) 47: Potter v Melbourne and Metropolitan Tramways Board (1957) 98 CLR 337: Ex parte Blackwell; Re Hateley [1965] NSWR 1061.
·Whether the occupation of “dentist” in New South Wales was equivalent to the occupation of “orthodontist” in Victoria goes to jurisdiction: it is a question which defines the boundaries within which the power to register by way of mutual recognition is to be exercised.
·The failure to correctly decide that question thus results in a want (or lack) of jurisdiction to do what the New South Wales Dental Board has purported to do.
·The effect of such an error of “jurisdictional fact” is that the decision is void and a nullity.
·If the New South Wales registration is void and a nullity, it follows that the applicant is not “a person who is registered in the first State” and therefore could not be mutually recognised in Western Australia.
6. A second (and alternative) submission was advanced on behalf of the respondent. It was in the following terms:
“In the scenario posited, there would be an erroneous but unchallenged decision of the NSW Dental Board. Further, in a practical sense, the decision would never be challenged. This follows because the affected individual, being the applicant, obviously would not have any interest in challenging a decision to grant registration in a second State. Nor would there be any other person interested for the purpose of section 34 of the MR Act who would have a relevant interest, and therefore standing, to seek review by the Tribunal or by a court of judicial review. (In this respect the respondent submits that it does have a relevant “interest” to attract standing).
If this is right, then if (as occurred here) the registration board in a second State makes a legal error in its decision to register a person in that State then, unless the Tribunal intervenes, the local registration authority in a third State will be forced to register the applicant despite the error. Further, every subsequent registration authority to which the applicant applied would be forced to register the applicant upon the basis of an incorrect decision to register in the second State without there being any person with a relevant interest and standing to challenge the decision.
On the basis of this difficulty in the mutual recognition system, the respondent submits that section 31 of the MR Act, which gives the Tribunal power to make declarations on a review, must be interpreted in such a way to address this situation.
Section 31 of the MR Act states –
(1) On a review, the Tribunal may make an order that a person who is registered in a particular occupation in a particular State is or is not entitled to registration in another State in a particular occupation, and may specify or describe conditions that will achieve equivalence.
(2) On such a review, the Tribunal may make a declaration that occupations carried on in 2 States are not equivalent, but only if the Tribunal is satisfied that:
(a) the activities involved in the occupations are not substantially the same (even with the imposition of conditions)…;
The language of this section us broad enough to apply to the making of declarations, on a review of a decision of a registration authority in a third or subsequent State, in relation to an earlier recognition decisions upon which the application for recognition depends. Notably, there is no reference, as there is in sections 19 and 20 to the first and second States.
The respondent submits that the Tribunal, in reviewing the decision of the respondent not to register the applicant, may, and should make:
(a) a declaration under section 31(2)(a) that the occupation of orthodontist in Victoria is not equivalent to the occupation of dentist in NSW; and
(b)an order under section 31(1) that the applicant is not entitled to be registered as a dentist in NSW.
Consequent upon the Tribunal making the declaration and order sought in
paragraphs (a) and (b) above, there would be no registration in NSW entitling
the applicant to registration under the MR Act in WA.”
Analysis
7. Whether or not the New South Wales Dental Board’s registration of the applicant as a “dentist” constituted a “jurisdictional error” is not a matter for this Tribunal to determine, this Tribunal not being a court. There is nothing in either the Administrative Appeals Act or the MR Act that would empower the Tribunal to do so. In this regard it is useful to make reference to the decision of French J (as His Honour then was ) in Board of Examiners Under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 176 ALR 305 [64]:
“The best that may be said of these submissions is that they invite attention to the question which must be asked of any person invoking the provisions of the Mutual Recognition Act – what is the occupation for which that person is registered in the “first State”? That, however, is a question to be answered by reference to the terms of the “registration” in the first state informed by or read with the statutory provisions under which such registration is effected. It is not to be answered by reference to the administrative process for implementing those provisions. That could very quickly lead to the registration authority in the second state judging the strength or weakness of registration in the first by reference to content and standard of its examination or other processes lying behind registration. To the extent that such an approach falls outside the express statutory qualifications on the mutual recognition principle in cases involving public health and safety environment protection and the use of conditional registration to obtain equivalence, it is an unwarranted erosion of that principle.”
8. Section 23 of the MR Act provides that a local registration authority may refuse the grant of a registration if:
(a) any of the statements or information in the notices required by section 19 are materially false or misleading; or
(b) any document or information that is required by sub-section 19(3) has not been provided or is materially false and misleading: or
(c) the authority decides that the occupation for which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
9. Nothing in section 23 of the MR Act allows the local registration authority to go behind the registration in the first State to consider whether or not it is correct. Nor does anything in section 31 empower the Tribunal to do so.
10. 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.
11. 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.
12. 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).
13. 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”.
14. As to whether the Tribunal can and should make a declaration that the occupation of “orthodontist” in Victoria is not equivalent to the occupation of “dentist” in New South Wales, I note that the relevant local registration authority in New South Wales, the New South Wales Dental Board, is not a party to this matter, has been given no notice of the matter (so far as the Tribunal is aware) and has not been afforded an opportunity to be heard.
15. It therefore follows that, for the proper disposition of this matter, it will be necessary for the New South Wales Dental Board to now be given notice of this matter, the contentions advanced on behalf of the respondent, the findings which have been made thus far by the Tribunal and for the Board to be given an opportunity to provide written submissions to the Tribunal if it wishes to do so.
16. The Tribunal therefore proposes to make the following directions:
1. Within 14 days of the date of this decision, the respondent do provide to the New South Wales Dental Board copies of the Tribunal’s two Reasons for Decision in this matter:
2.The New South Wales Dental Board shall have 28 days (or such further period as the Tribunal may direct upon application by the New South Wales Dental Board) to provide written submissions to the Tribunal (should it wish to do so) with respect to whether a declaration ought be made by the Tribunal pursuant to section 31(2):
3.In the event that the New South Wales Dental Board provides written submissions to the Tribunal, the applicant and respondent are to lodge with the Tribunal, providing copies to each other, any written submissions in response within 14 days of their respective receipt of the New South Wales Dental Board’s written submissions (copies of which will be provided to them by the Tribunal).
4.The submissions provided should also deal with how (if at all) any declaration which the Tribunal may make may impact upon the mutual recognition of the applicant’s New South Wales registration.
17. The Tribunal will thereafter consider all written submissions so provided and deliver the Tribunal’s final decision.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Penglis
Signed: .....(sgd) T Freeman.......................
AssociateDate/s of Hearing Decided on papers
Date of Decision 23 April 2009
Applicant Self- represented
Solicitor for the Respondent Talbot and Olivier
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