SHABOODIEN and DENTAL BOARD OF WESTERN AUSTRALIA
[2008] WASAT 102
•14 MAY 2008
SHABOODIEN and DENTAL BOARD OF WESTERN AUSTRALIA [2008] WASAT 102
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 102 | |
| DENTAL ACT 1939 (WA) | |||
| Case No: | VR:77/2008 | DECIDED ON THE DOCUMENTS | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 14/05/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed for want of jurisdiction | ||
| A | |||
| PDF Version |
| Parties: | SHABIER SHABOODIEN DENTAL BOARD OF WESTERN AUSTRALIA |
Catchwords: | Mutual recognition of professions and occupations Review jurisdiction Dental Act 1939 (WA), s 33 Mutual Recognition (Western Australia) Act 2001 (WA) Mutual Recognition Act 1992 (Cth) |
Legislation: | Commonwealth of Australia Constitution Act (1900) (UK), s 51(xxxvii) Dental Act 1939 (WA), s 33(a) Mutual Recognition Act 1992 (Cth), s 4(1), s 17(1), s 17(2), s 19, s 19(1), s 19(2), s 19(3), s 19(4), s 19(5), s 20(1), s 20(2), s 20(4), s 23, s 23(1), s 29, s 31, s 31(1), s 31(2), s 34, s 34(1) Mutual Recognition (Western Australia) Act 2001 (WA), s 3(1), s 3(2), s 4, s 4(4), Long title Mutual Recognition (Western Australia) Act 1995 (WA) |
Case References: | Nil |
Orders | 1. The application of the applicant for review of the mutual recognition decisions of the Dental Board of Western Australia is dismissed for want of jurisdiction in the State Administrative Tribunal. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : DENTAL ACT 1939 (WA) CITATION : SHABOODIEN and DENTAL BOARD OF WESTERN AUSTRALIA [2008] WASAT 102 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : DECIDED ON THE DOCUMENTS DELIVERED : 14 MAY 2008 FILE NO/S : VR 77 of 2008 BETWEEN : SHABIER SHABOODIEN
- Applicant
AND
DENTAL BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Mutual recognition of professions and occupations - Review jurisdiction - Dental Act 1939 (WA), s 33 - Mutual Recognition (Western Australia) Act 2001 (WA) - Mutual Recognition Act 1992 (Cth)
Legislation:
Commonwealth of Australia Constitution Act (1900) (UK), s 51(xxxvii)
Dental Act 1939 (WA), s 33(a)
Mutual Recognition Act 1992 (Cth), s 4(1), s 17(1), s 17(2), s 19, s 19(1), s 19(2), s 19(3), s 19(4), s 19(5), s 20(1), s 20(2), s 20(4), s 23, s 23(1), s 29, s 31, s 31(1), s 31(2), s 34, s 34(1)
(Page 2)
Mutual Recognition (Western Australia) Act 2001 (WA), s 3(1), s 3(2), s 4, s 4(4), Long title
Mutual Recognition (Western Australia) Act 1995 (WA)
Result:
Application dismissed for want of jurisdiction
Category: A
Representation:
Counsel:
Applicant : Mr MRB Hemery
Respondent : Selfrepresented
Solicitors:
Applicant : Talbot Olivier Lawyers
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The Tribunal found that it lacked jurisdiction to review a decision of the Dental Board of Western Australia made under the mutual recognition legislation of the Commonwealth and so dismissed the applicant's review application purportedly made under s 33(a) of the Dental Act 1939 (WA). The proper forum for review was held to be the Commonwealth Administrative Appeals Tribunal.
Issue
2 The issue the subject of this decision is whether the Tribunal, or the Commonwealth Administrative Appeals Tribunal (AAT), or both, have jurisdiction to hear and determine the applicant's application for review of a decision of the Dental Board of Western Australia (Dental Board) refusing him registration under the Dental Act 1939 (WA) (Dental Act) and the Mutual Recognition (Western Australia) Act 2001 (WA) (State Act) which adopts of the Mutual Recognition Act 1992 (Cth) (Commonwealth Act).
Facts
3 Mr Shaboodien, the applicant, at material times had registration as an orthodontist in Victoria and registration in New South Wales as a dentist with specialist description "orthodontist".
4 By letter dated 27 February 2008, the Dental Board advised the applicant of its decision to refuse both his application dated 2 August 2007 for registration as an orthodontist and a second application dated 11 September 2007 for registration as a dentist under the mutual recognition legislation.
5 In relation to the first application to be registered as an orthodontist, based on the applicant's registration as an orthodontist in Victoria, the Board refused the 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) [sic] to impose conditions on registration
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- 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."
6 In relation to the second application for registration as a dentist based on the New South Wales registration, the Board advised that it had 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) which, by virtue of s 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 this 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."
7 The applicant then applied to this Tribunal to review the refusal of the Board to register him under the Dental Act.
8 The application of the applicant is purportedly made under s 33(a) of the Dental Act which relevantly provides:
"Whenever the Board makes a decision -
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- (a) refusing to register any person;
...
a person aggrieved may apply to the State Administrative Tribunal for a review of the decision."
9 The solicitors for the Board at the first directions hearing of the applicant's review application raised the question whether the Tribunal had jurisdiction to entertain his review application.
10 The Board drew attention to the Mutual Recognition (Western Australia) Act 2001 (WA) (State Act) which, in terms similar to the earlier Mutual Recognition (Western Australia) Act 1995 (WA), adopted the Mutual Recognition Act 1992 (Cth) (Commonwealth Act).
11 In short, the Board raised the issue whether, because the Commonwealth Act, s 34(1) provides for review of a decision of a local registration authority by the AAT, the State Administrative Tribunal can entertain an application under s 33(a) of the Dental Act.
Tribunal's finding
12 As appears from the State Act, the Act was an Act made "to continue the adoption of the Mutual Recognition Act 1992 … which provides for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupations, and for related purposes": see Long Title to the State Act.
13 The background to the enactment to the State Act is specified in the State Act as follows:
"1) The Parliaments of New South Wales and Queensland each referred matters to the Parliament of the Commonwealth for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth so as to enable the enactment and amendment of legislation to provide for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupations.
2) The Parliament of the Commonwealth subsequently enacted the Mutual Recognition Act 1992.
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- 3) The Mutual Recognition (Western Australia) Act 1995 adopted that Commonwealth Act for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth for the period 9 December 1995 to 28 February 2001 (both dates inclusive)."
14 The purpose of the State Act is to continue the adoption of the Commonwealth Act.
15 Accordingly, s 4 of the State Act provides that, "subject to this section, the State of Western Australia adopts the Commonwealth Act as originally enacted and any amendments made to it before this Act receives Royal Assent".
16 Section 4(4) of the State Act provides that the adoption of the Commonwealth Act under the State Act ceases to have effect at the end of the termination day. The termination day is 28 February 2011, s 3(1), or an earlier date if fixed by the Governor by proclamation under s 3(2). The Commonwealth Act with relevant amendments, adopted by the State Act, operates in material ways to give mutual recognition to occupations identified in Pt 3.
17 By s 4(1) of the Commonwealth Act, the term "occupation" is interpreted to mean:
"an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted."
18 On the face of it, the profession of dentistry, which requires registration in the several States and Territories of Australia, is a profession for the purposes of the definition of occupation in the Commonwealth Act.
19 By s 17(1) of the Commonwealth Act, the "mutual recognition principle" is that, subject to Pt 3:
"a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
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- a) to be registered in the second State for the equivalent occupation; and
b) pending such registration, to carry on the equivalent occupation in the second State."
20 However, the mutual recognition principle just stated is, by s 17(2):
"subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws:
a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation."
21 Section 19 of the Commonwealth Act provides for notification to the local registration authority. By s 19(1):
"a person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle."
22 The notice, by s 19(2), must set out certain information. Other documents and verifications must also be supplied under s 19(3), (4) and (5).
23 By s 20(1) of the Commonwealth Act, a person who lodges a notice under s 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, "as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration". Section 20(2) expressly provides that the local registration authority "may grant registration on that ground and may grant renewals of such registration".
24 By s 20(4) of the Commonwealth Act, continuance of registration is otherwise subject to the laws of the second State in accordance with the principles set out in s 17(2).
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25 Section 23 of the Commonwealth Act provides for refusal of the registration by a local registration authority. Section 23(1) provides that a local registration authority may refuse the grant of registration if:
"(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or
(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or
(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions."
26 As to equivalent occupations, s 29 of the Commonwealth Act states the general principles as follows:
"(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
(2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States.
(3) This section has effect subject to any relevant declarations in force under this Division."
27 Section 31 of the Commonwealth Act provides for declarations by the Tribunal. The "Tribunal" is defined by s 4(1) of the Commonwealth Act to mean the AAT. Section 31(1) provides that:
"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."
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28 Section 31(2) sets out matters about which the AAT must be satisfied for the purpose of making a declaration that occupations carried on in two States are not equivalent.
29 Section 34 of the Commonwealth Act deals with the review of decisions. By s 34(1):
"Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Tribunal for review of a decision of a local registration authority in relation to its functions under this Act."
30 The whole design of the Commonwealth Act is such that a person aggrieved by the decision of a local registration authority - such as the Dental Board - may seek review in the AAT. On the face of it, the right an aggrieved person ordinarily has under s 33 of the Dental Act to apply to the State Administrative Tribunal does not exist in the case of a mutual recognition decision.
31 That this is in fact the practical and the statutory and constitutional position, is confirmed by a closer analysis of the constitutional position. The Commonwealth of Australia Constitution Act (1900) by s 51 specifies the legislative powers of the Parliament of the Commonwealth. The question of the registration of dentists is not a matter referred to in s 51. States retain that power. However, under s 51(xxxvii) the parliament of the Commonwealth has power to make laws with respect to:
"Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law"
32 In this case, having regard to the background circumstances mentioned in the State Act, the parliaments of New South Wales and Queensland referred the matter of mutual recognition generally to the Parliament of the Commonwealth. Then the Parliament of the Commonwealth made the Commonwealth Act in 1992. The Commonwealth Act was then adopted by the Western Australian Parliament, most recently by the State Act in 2001.
33 In those circumstances, the Commonwealth Act applies as a matter of Commonwealth law, and not State law, in Western Australia.
(Page 10)
34 Accordingly, the terms of the Commonwealth Act, including the right of a person under s 34 of the Commonwealth Act to seek review of a decision, apply according to its terms.
35 The result is that a person such as the applicant in these proceedings, who wishes to seek review of a decision of the local registration authority made under the Commonwealth Act in respect of mutual recognition, must apply to the AAT for review. The State Administrative Tribunal has no jurisdiction in relation to that type of decision under s 33 of the Dental Act.
36 In this way, the system of mutual recognition of professions and occupations achieved by the Commonwealth law and adopted by the State law means that there is only one forum in which review of mutual recognition decisions made by a local registration authority in Western Australia may be reviewed, and that is the AAT.
37 In those circumstances, the application of the applicant to this Tribunal is not competent as this Tribunal does not have any jurisdiction to review the mutual recognition decisions made by the Dental Board affecting the applicant.
Conclusion and Order
38 For the reasons given above, the State Administrative Tribunal does not have jurisdiction to review the mutual recognition decisions made by the Dental Board affecting the applicant. It follows that the applicant's application should be dismissed for want of jurisdiction.
39 The Tribunal therefore orders as follows:
1. The application of the applicant for review of the mutual recognition decisions of the Dental Board of Western Australia is dismissed for want of jurisdiction in the State Administrative Tribunal.
(Page 11)
- I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
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