Medical Board of Queensland v Senior Member McCabe of the Administrative Appeals Tribunal [2004] FCA 801

FEDERAL COURT OF AUSTRALIA

Medical Board of Queensland v Senior Member McCabe of the Administrative Appeals Tribunal [2004] FCA 801 ADMINISTRATIVE LAW – appeal from decision of the Administrative Appeals Tribunal – powers of the Tribunal – whether decision of the Tribunal is a nullity because Tribunal had no power to make the decision – where Tribunal granted a stay of a decision by the Medical Board of Queensland to refuse registration of applicant as a specialist in the field of intensive care – whether s23(2) of the Mutual Recognition (Queensland) Act 1992 (Qld) provides a power in the Tribunal to stay a decision by the Board to refuse registration – characterisation of the decision by the Board – whether a person who lodges a notice under s19 of the Act is entitled to deemed registration under s25 regardless of whether there is coincidence between the registration description in the first State and the occupation for which registration is sought in the second State – whether deemed registration ceases under s26(3) of the Act if the Tribunal has made an order under s23(2) of the Act extending the time at which the Board's decision is to take effect Mutual Recognition (Queensland) Act 1992 (Qld) s3; Part 3; s 16(2); Division 2, Part 3; s 19(1); s 20(1); s 19; s 21(1); s 22(3); s 21(4); s 23(1)(c); s 23(2); Division 3, Part 3; s 25(1); s 25(2); s 26; s 26(3); Division 4; Part 3; s 30; s 31; s 29(1); s 34; s 25; s 23 Mutual Recognition Act 1992 (Cth) Medical Practitioners Registration Act 2001 (Qld) Administrative Appeals Tribunal Act 1975 (Cth) s 41(2) Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Appl MEDICAL BOARD OF QUEENSLAND v SENIOR MEMBER MCCABE OF THE ADMINISTRATIVE APPEALS TRIBUNAL and JAMES WILLIAM RENTON Q100 OF 2004 KIEFEL J 24 JUNE 2004 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 100 OF 2004

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MEDICAL BOARD OF QUEENSLAND

APPLICANT

AND: SENIOR MEMBER MCCABE OF THE ADMINISTRATIVE APPEALS TRIBUNAL

FIRST RESPONDENT

JAMES WILLIAM RENTON

SECOND RESPONDENT

JUDGE: KIEFEL J

DATE OF ORDER: 24 JUNE 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 100 OF 2004

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MEDICAL BOARD OF QUEENSLAND

APPLICANT

AND: SENIOR MEMBER MCCABE OF THE ADMINISTRATIVE APPEALS TRIBUNAL

FIRST RESPONDENT

JAMES WILLIAM RENTON

SECOND RESPONDENT

JUDGE: KIEFEL J

DATE: 24 JUNE 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The applicant, the Medical Board of Queensland ('the Board'), seeks an order quashing the decision of the Administrative Appeals Tribunal of 10 June 2004 and a declaration that the decision is a nullity because the Tribunal had no power to make it. The Tribunal had granted a stay of a decision of the Board concerning Dr Renton's registration as a specialist in Queensland. The Board's decision, communicated on 6 May 2004, was to refuse registration of Dr Renton as a specialist in the field of intensive care under the Mutual Recognition (Queensland) Act 1992 (Qld)('the Act') (and see also the Mutual Recognition Act 1992 (Cth)). 2 Dr Renton holds the qualifications of Bachelor of Medicine and Bachelor of Surgery from the London University. He has a general registration as a medical practitioner in Queensland and registration in the specialty of emergency medicine. He is conditionally registered in New South Wales. That registration refers to his qualifications but does not specify any specialty. Dr Renton says that he is approved by the Health Insurance Commission as a doctor who works in the area of intensive care (an 'intensivist'). 3 On 2 April 2004 Dr Renton wrote to the Board pursuant to s 19 of the Act requesting recognition as a specialist in intensive care medicine. He provided details of his accreditation in New South Wales and his experience in intensive care. He observed that he did not qualify for the specialty under Schedule 1 of the Medical Practitioners Registration Regulation 2002 (made under the Medical Practitioners Registration Act 2001 (Qld)). 4 On 6 May 2004 the Board advised that his request had been considered at its meeting of 27 April 2004. It had concluded that the Act is concerned with the entitlement of a person who is registered in connexion with an occupation, to carry out the equivalent occupation in another State. As he was not registered in New South Wales as a specialist in intensive care, the Board considered that he did not meet the threshold requirements of the Act. It would appear that New South Wales does not have a specialist register and not many other states do either.

STATUTORY PROVISIONS 5 The purpose of the Act is stated to be to enable the enactment of uniform legislation relating to the recognition of regulation standards adopted in Australia regarding goods and occupations: s 3. Part 3 deals with occupations. Section 16(2) provides: 'This Part deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.' The first mentioned State is called 'the first State' and the other 'the second State'. 6 Division 2 of that Part deals with the entitlement to registration. Section 19(1) provides that: '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.' The Board is a local registration authority. 7 Section 20(1) provides that a person who lodges a notice under s 19 is entitled to be registered in the equivalent occupation as if the law of the second State expressly provided that registration in the first State is a sufficient ground of entitlement to registration. The local registration authority may impose conditions. They include those necessary to achieve 'equivalence of occupations'. 8 Registration is required to be granted within one month of the notice being lodged under s 19: s 21(1). The local registration authority may however postpone or refuse the grant within one month after the notice was lodged. It is not entitled to postpone its decision for more than six months: s 22(3). The decision refusing Dr Renton's request was made in such a period. A number of the provisions make plain that a person is not to be held up from registration, some expressing an entitlement in the person to registration where there is indecision on the part of the Board: see s 21(4). 9 Section 23(1)(c) provides that a local registration authority may refuse a grant of registration if it decides: '… that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.' 10 Subsection (2) goes on: 'A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.' 11 Division 3 of Part 3 is entitled 'Interim arrangements'. Section 25(1) provides that a person who lodges a notice under s 19: '…is, pending the grant or refusal of registration, taken to be registered as provided in section 20.' It is called 'deemed registration': s 25(2). Section 26 deals with the duration of deemed registration. Relevantly subs (3) of it provides: 'A person's deemed registration in the second State ceases if the local registration authority of the State refuses to grant registration, subject to any determination of the Tribunal.' 12 Division 4 deals with how the equivalence of occupations is to be determined and provides powers in the Tribunal to make declarations in that regard: s 30 and s 31 . It is noteworthy that under the 'general principle' stated in s 29(1) an occupation for which persons are registered in the first State is taken to be equivalent to an occupation for which they are 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'). 13 Section 34 of the Act empowers the Tribunal to review a decision of a local registration authority in relation to its functions under the Act. Section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal may make an order staying the operation or implementation of a decision in certain circumstances.

TRIBUNAL'S DECISION 14 The Tribunal observed, correctly in my view, that the power to grant an order in the nature of a stay is ordinarily exercised with a view to preserving the status quo. However it considered that in this case it had the power to stay the Board's decision to refuse registration 'where the decision is in practice a cancellation of (deemed) registration' (at par 21). 15 Dr Renton's submission to the Tribunal was that s 19 of the Act triggered an obligation to register him in Queensland because of s 21(1). The Tribunal appears to have accepted this submission. It observed (at par 16) that s 25 deems an applicant to be registered after lodging the notice under s 19. And it also observed that s 26(3) says that the deemed registration ceases on refusal. It then turned to s 23, noting that the Board had said that it had rejected the application under s 23(1)(c). It observed that the Board's letter of 6 May 2004 did not specify the period at the end of which the decision was to take effect. In the meantime, there was an application for review to the Tribunal. It followed that the Tribunal might make whatever orders it considered appropriate under s 23(2). The Tribunal considered that potentially they included a stay order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth). The order it made was that 'the stay is granted until the appeal is heard or further order.'

the application to this Court 16 It is not necessary for me to identify or deal with in any way questions concerning the relationship between registration in the first State and the equivalency of occupation under the Act. They are questions for the Tribunal on its review. The question which arises for consideration is whether s 23(2) was intended to provide a power in the Tribunal with respect to the Board's decision, a power which might include the making of an order in the nature of a stay. 17 The starting point is the Board's decision, which is properly characterised as a refusal of registration. The reasons for it are not presently relevant. It is obvious that it is not a decision which would operate or be implemented if a stay were not ordered. It is not a decision to which an order for stay is properly referrable, as was submitted for the Board. One may contrast a cancellation of a right or benefit formerly enjoyed by an applicant. When the entitlement of that right or benefit is subject to review by the Tribunal clearly the decision concerning entitlement may be suspended until the Tribunal determines the matter. Often this will mean that the status quo is preserved. 18 The Tribunal appears, at least initially, to have considered that deemed registration given by s 25 was a right. However it is not one cancelled by the Board's decision, but by the operation of the statute. The decision was not that interim or deemed registration be cancelled. There would be no power in the Board to so decide. The cessation of deemed registration is provided by s 26 and includes where a refusal is made to grant registration: subs (3). That subsection is however also expressed to be 'subject to any determination of the Tribunal'. 19 The Board submitted that Dr Renton was not entitled to deemed registration under s 25 because he was not registered as a specialist in New South Wales in the area for which he sought to be registered in Queensland. The submission assumes the need for coincidence between the registration description and the occupation for which registration is sought in the second State. It does not seem to me likely that it was intended that there might be some controversy about whether a person is entitled to deemed registration. The purpose of deeming a person to be registered in the second State was to provide for something to occur automatically. It would not be consistent with that to assume that there could be some area for doubt as to whether registration was to be deemed in a particular case. The terms of s 19 and s 25 confirm this approach. 20 Section 19 requires that a person be registered in the first State for an occupation. Obviously enough it is with respect to that occupation that notice is then given to the registration authority in the second State. But the equivalence of the two occupations is not required to be proved at this point, although it is predicted by other sections that that is likely to be a matter of controversy in some cases. Section 25 provides in clear terms that a person who lodges a notice under s 19 is to be taken as registered, pending the grant or refusal of registration. It requires no more than that the notice has been given. 21 In submissions the Board raised the prospect that a person wholly unqualified to undertake an occupation might achieve registration simply by sending a notice. It would seem to me however that if the person's disqualification were so clear that the Board would issue a refusal immediately and perhaps apply for an injunction. In the usual case it is apparent from the provisions of the Act that the deemed registration is not intended to endure for a lengthy period, unless the Board delays in its decision-making. 22 I turn then to s 23(2). Clearly enough it intends to provide a period when the Board's decision is not to be effective. Its wording may not be as clear as one would wish, but its evident purpose is to enable a person affected by a decision, which might become operative, to apply to the Tribunal. The question then is what it is they might apply for. The orders which the Tribunal might make are not expressed in the subsection. But they must relate to the time when the decision is to come into effect. That is the context of the provision: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 ('Project Blue Sky'). The only sensible meaning to be given to the general provision that 'the Tribunal may make whatever orders it considers appropriate' is that it permits the Tribunal to make orders concerning when the Board's decision is to come into effect pending the Tribunal's decision. This would include nominating a period or extending one where it has been specified. 23 A proper approach to statutory construction requires that, where possible, all the statutory provisions be read together: Project Blue Sky at 381. Reading s 23(2) and s 26(3) together one might say that if a Tribunal had made an order extending the time at which the Board's decision is to take effect, then there would not be an effective refusal for the purposes of s 26(3). It would follow that a person's deemed registration would not cease. The phrase 'subject to any determination of the Tribunal' in s 26(3) could be read as referable to a determination made under s 23(2). It would not make sense of the word 'determination' in the context of the subsection to read it as referring to the Tribunal's final decision upon a review under s 34. It may also be that there is a general power under s 23(2) to determine that a person's deemed registration has not ceased but it is not necessary for me to further consider that point in this case. 24 The power to be exercised is that under s 23(2). In a sense it has the effect of staying the decision of the Board, but it is perhaps more accurate to say that it is a power to determine when a decision is to take effect. It is apparent that the Tribunal understood its powers to derive from the subsection and the parties understood the effect sought to be achieved. On one view the order made could be set aside to enable it to be expressed differently, to the effect that the decision of the Board does not take effect until the determination of the review of its decision by the Board. But it does not seem necessary to me to do so. Were it necessary to clarify the matter a declaration could be made, but again this does not seem necessary. Unless the parties suggest there is some need to do so I would not make an order affecting the Tribunal's decision. 25 The application will be dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate: Dated: 24 June 2004 Counsel for the Applicant: Mr D P O'Gorman

Solicitor for the Applicant: Gilshenan & Luton

Counsel for the First Respondent: Ms S Railton

Solicitor for the First Respondent: Australian Government Solicitor

For the Second Respondent: In Person

Date of Hearing: 22 June 2004

Date of Judgment: 24 June 2004