The Tribunal finds that:

1. Under s 98(1)(a)(ii) of the Health Practitioner Regulation National Law (Victoria) (National Law), in the opinion of the Tribunal, Dr Marian Kolta holds qualifications, comprising a Doctor of Psychology (Counselling Psychology) and a Graduate Diploma of Science (Clinical Psychology), both completed at the Swinburne University of Technology (Swinburne), which together, are substantially equivalent to, or based on similar competencies to an approved qualification, namely a Doctor of Psychology (Clinical Psychology) offered at Swinburne at the same time; and

2. Under s 98(1)(b) of the National Law, Dr Marian Kolta complies with an approved registration standard relevant to endorsement in clinical psychology by reference to the Transitional arrangements published by the Psychology Board of Australia and applied from 30 June 2010 and accordingly Dr Marian Kolta is exempt from any further requirement under the 2019 Registration Standard.

1. The Tribunal sets aside the decision of the Psychology Board of Australia, dated 7 April 2020, refusing Dr Marian Kolta's application for endorsement as a clinical psychologist, under s 202(1)(c) of the Health Practitioner Regulation National Law (Victoria) (National Law), and s 51(2)(c) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

2 The Tribunal approves Dr Marian Kolta's application for endorsement of her registration as a clinical psychologist under s 102(1) of the National Law.

3 The Board is directed to issue Dr Marian Kolta endorsed registration as a clinical psychologist forthwith, in accordance with s 205(1) of the National Law.

4 For the avoidance of doubt:

(a) the Tribunal extends the time for compliance with the Transitional arrangements to the date when Dr Marian Kolta re lodged her application in 2019; and

(b) having found Dr Marian Kolta's qualifications to be substantially equivalent, in accordance with s 98(1)(a)(ii) of the National Law, the Tribunal directs that any further requirement to comply with the 2019 Registration Standard is reduced to zero.

5 Costs reserved.

6 Liberty to apply on the question of costs.

NOTE

The Applicant has applied for costs of the proceeding. The parties are requested to make written submissions on the question of costs, which will be determined on the papers, unless either party requests a further hearing.

1 The Psychology Board of Australia (the Board) is the National Board for the psychology health profession.[1]

2 On 7 April 2020,[2] the Board decided to refuse to endorse Dr Kolta's registration in clinical psychology (the Decision).

3 On 13 May 2020, Dr Kolta appealed to the Victorian Civil and Administrative Tribunal (VCAT or the Tribunal) against the Decision, under s 199(1)(b) of the Health Practitioner Regulation National Law (Victoria) (National Law).

4 Section 42 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) provides that a review jurisdiction is conferred on the Tribunal, in this instance by s 202 of the National Law, to review a decision of a decision-maker, in this instance, the Decision of the Board to refuse endorsement in clinical psychology to Dr Kolta.

5 The Tribunal has the power to confirm or amend the Decision or to substitute another decision.[3] In substituting another decision, the Tribunal has 'the same powers as the Board'[4] and 'all the jurisdiction, power, duty and authority of the decision-maker'.[5] It also has the powers conferred by ss 51 and 51A of the VCAT Act.

6 The Tribunal's statutory task is to determine, on the material before it, and in accordance with its statutory powers under the National Law, the correct or preferable decision under s 98(1) of the National Law, in relation to Dr Kolta's application. The Tribunal's decision may be based on different evidence from that before the original decision-maker and may be made for different reasons.[6]

7 The Board must give effect to a decision of the Tribunal.[7]

8 Both parties agree that the Tribunal must apply the law applicable at the time when its decision is made.

9 However, the Applicant contends that, for the purpose of s 98(1)(b) of the National Law, the Tribunal should apply the Transitional arrangements, implemented under the Transitional provisions under Part 12 of the National Law. This matter will be examined below.

10 The Tribunal acknowledges the comprehensive submissions of Counsel for both parties and has chosen to draw extensively upon such submissions, as indicated below.

11 Dr Kolta is entitled to an endorsed registration, in the category of clinical psychology, if the Tribunal decides that she:

(a) Holds either an approved qualification or another qualification that, in the Tribunal's opinion, is substantially equivalent to, or based on similar competencies to, an approved qualification; and

(b) Complies with an approved registration standard relevant to the endorsement.

12 The Applicant comes before the Tribunal with an impeccable work history and impressive academic qualifications. The Respondent takes no issue with either description. Indeed, the factual circumstances in this case are largely not in issue. However, each party relies upon a markedly different interpretation of relevant statutory provisions. Accordingly, the key issue for determination by the Tribunal is which is the correct interpretation, of s 98(1) of the National Law, advanced by each party.[8]

(a) In applying s 98(1)(a)(ii) of the National Law, the Tribunal is precluded from considering Dr Kolta's clinical placements and doctoral thesis or what she has, in fact, been assessed as having completed. The only relevant comparison which the Tribunal is required and permitted to make is between the course outlines of the qualifications that Dr Kolta completed and the course outlines of an approved qualification; and

(b) In applying s 98(1)(b) of the National Law, the Tribunal may only apply the approved registration standard applicable at the time when the Board received Dr Kolta's application in 2019 and has no discretion to determine the relevant standard at any other date.

14 Dr Kolta contends that the Tribunal must undertake a comparative analysis between her qualifications and competencies as assessed and the qualifications and competencies she would have had assessed had she completed an approved qualification. Accordingly, the Tribunal can and should consider:

(a) The coursework completed under both postgraduate qualifications;[9] and

(b) The clinical nature of the placements undertaken and assessed for her Doctorate of Psychology (Counselling Psychology) as well as the clinical nature of her doctoral thesis.

15 Further, Dr Kolta submits that, in the circumstances of this case, in applying s 98(1)(b), the Board (or Tribunal) may exercise its discretion to determine which relevant approved registration standard applies. Consistent with the Board's practice, the relevant standard is that which applied at the time Dr Kolta submitted her original application in 2010.

16 For the reasons detailed below, the Tribunal has determined to grant Dr Kolta an Area of Practice Endorsement (AOPE) in Clinical Psychology under s 98(1) of the National Law.

17 In addition to the written statements tendered[10] and oral evidence given by Dr Kolta, the following expert witnesses gave evidence on behalf of the Applicant.

18 Professor Roger Cook (Prof Cook)[11] is:

(a) Associate Professor in Psychology, Swinburne University of Technology (Swinburne);

(b) A practicing psychologist with endorsements in both counselling and clinical psychology;

(c) An approved reviewer of the accreditation of postgraduate courses in Psychology;

(d) A registered Board approved supervisor of psychologists seeking AOPE for clinical and counselling psychology in the registrar program; and

(e) A director of the Australian Psychology Accreditation Council (APAC) for two years and is currently Deputy Chair.

(a) Worked at Swinburne for 46 years, during which he taught almost all psychology courses that were offered and, in doing so, assessed the equivalence of qualifications of applicants for entry to the University's clinical and counselling courses and for subject exemptions; and

(b) Supervised Dr Kolta for two clinical placements at the Swinburne Psychology Unit, as part of her doctoral thesis.

20 Dr Felicity Allen (Dr Allen):[12]

(a) Has an AOPE in Health Psychology and is a registered supervising psychologist with the Australian Health Practitioner Regulation Agency (AHPRA);

(b) Acts as an educator for psychologists who have restrictions on their practice;

(c) Was a board member of the Australian Psychological Society (APS) and served a two year term from 2015; and

(d) Was a senior academic for over 25 years at both La Trobe and Monash Universities.

21 At Monash University, Dr Allen coordinated the Masters in Health Psychology and Postgraduate Diploma of Psychology, during which she:

(a) assessed the equivalence of an applicant's qualifications attained from other universities (some from overseas) for entry into postgraduate courses;

(b) considered requests for exemptions; and

(c) developed, taught and assessed course materials at the standard of the APS and then APAC.

22 The Tribunal notes that, although Dr Allen is not endorsed in clinical psychology, she has relevant experience and expertise in making comparative assessments for the purpose of assessing substantial equivalence and granting subject exemptions.

23 Dr Suzanne Barrett (Dr Barrett)[13] is an endorsed Clinical Psychologist and experienced Board approved supervisor for the clinical registrar program.

24 Dr Barrett supervised Dr Kolta for a clinical placement at the Royal Children's Hospital, as part of her doctoral thesis; and, since 2019, has supervised Dr Kolta for the purpose of her continuing professional development.

25 Professor Alison Garton[14] (Prof Garton) has held non-practising registration since 1982. Prof Garton has no recognised area of practice endorsement. She is an academic developmental psychologist who has additional expertise in professional and research ethics; and was a member of program development and accreditation committees for the Australian Psychological Society prior to the establishment of APAC under the National Law.[15]

26 Prof Garton is currently the APAC Board Director and Chair of the Accreditation Assessment Committee (ACC) since 2017.

27 Prof Garton acknowledged that she gave evidence:

as an expert on APAC accreditation, rather than as a person with any particular knowledge about the way in which the courses were offered by Swinburne, or undertaken by Dr Kolta, in fact.[16]

(a) APAC has been appointed by the Board to undertake the accreditation assessments of psychology programs of higher education providers, including universities and private providers.

(b) The ACC comprises eight senior academics from across the country who;

(i) Undertake biannual psychology visits to higher education providers;

(ii) Provide team leaders for those assessments, which are based on the accreditation standards;

(iii) Prepare annual reports for the full committee;

(iv) Review annual reports and progress reports of the higher education providers; and

(v) Undertake out of cycle assessments of new programs, submitted for assessment.

29 Prior to 1 July 2010, the Health Professions Registration Act 2005 (Vic) (Victorian Act) provided only for general registration of psychologists and did not establish specialist categories.

30 On 1 July 2010, the Victorian Act was replaced by the National Law which was the law adopted and applied in Victoria by s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 as set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland.

31 The introduction of the National Law was part of the implementation of a national scheme of regulation of health practitioners.

32 The National Law makes provision for the registration of individual health practitioners to be endorsed in specialist areas. Since 1 July 2010, the Ministerial Council has given approval for endorsement of distinct practice areas in the profession of psychology, which areas include:

33 The National Law establishes a highly prescriptive regime, encompassing the establishment of various entities; the vesting of broad powers in the Board; and the provision of a detailed process for accrediting qualifications and practice programs, for the purpose of both general registration and specialist endorsement.

34 The Respondent's position relies upon a narrow application of the registration and endorsement criteria, which Counsel submitted, to the effect, was a necessary corollary of the statutory structure and defined terms. Accordingly, it is appropriate to set out the relevant statutory provisions in some detail, in recognition of the Respondent's case. However, the Tribunal has ultimately reached an interpretation consistent with the Applicant's position, having regard to the stated objectives and guiding principles of the National Law.

35 The Health Practitioner Regulation National Law (Victoria) Act 2009 relevantly provides:

The purpose of this Act is to provide for the adoption of a national law to establish a national registration and accreditation scheme for health practitioners.

2 Commencement

This Act comes into operation on 1 July 2010.

3 Definitions

(1) In this Act -

Health Practitioner Regulation National Law (Victoria) means the provisions applying in this jurisdiction because of section 4.

(2) Terms used in this Act and also in the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland have the same meanings in this Act as they have in that Law.

4 Application of Health Practitioner Regulation National Law

The Health Practitioner Regulation National Law, as in force from time to time, set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland -

(a) applies as a law of Victoria; and

(b) as so applying may be referred to as the Health Practitioner Regulation National Law (Victoria); and

(c) so applies as if it were part of this Act.

36 Section 3 of the National Law provides for the following objectives and guiding principles:

3 Objectives and guiding principles

(1) The object of this Law is to establish a national registration and accreditation scheme for -

(a) the regulation of health practitioners; and

(b) the registration of students undertaking -

(i) programs of study that provide a qualification for registration in a health profession; or

(ii) clinical training in a health profession.

(2) The objectives of the national registration and accreditation scheme are -

(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and

(b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and

(c) to facilitate the provision of high quality education and training of health practitioners; and

(d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and

(e) to facilitate access to services provided by health practitioners in accordance with the public interest; and

(f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.

(3) The guiding principles of the national registration and accreditation scheme are as follows -

(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;

(b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme;

(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

37 Section 4 of the National Law in turn provides that an entity that has functions under this Law (which would include the Board) is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3.

38 Both Counsel acknowledged that the most relevant objective of the registration scheme is to provide for the protection of the public by ensuring that only health practitioners, who are suitably trained and qualified to practise in a competent and ethical manner, are registered.

39 Section 52 of the National Law sets out the criteria an individual must meet to be eligible for general registration in a health profession.[17] In summary, the individual must:

(a) Be qualified for general registration in the health profession;

(b) Have successfully completed:

(i) Any period of supervised practice in the health profession required by an approved registration standard for the health profession; or

(ii) Any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the profession;

(c) Be a suitable person to hold general registration in the health profession;

(d) Not be disqualified from applying; and

(e) Meet any other requirements for registration stated in an approved registration standard for the health profession.

40 Section 53 of the National Law sets out the qualifications for registration, which in part provides:

An individual is qualified for general registration in a health profession if -

(a) the individual holds an approved qualification for the health profession; or

(b) the individual holds a qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification ...

41 Section 98(1) of the National Law introduced a provision for the registration of health practitioners to be endorsed in specialist areas of practice.[18] The criteria for such endorsement mirrors the above wording in s 53(1)(a) and (b):

98 Endorsement for approved area of practice

(1) A National Board established for a health profession may, in accordance with an approval given by the Ministerial Council under section 15, endorse the registration of a registered health practitioner registered in a health profession for which the Board is established as being qualified to practise in an approved area of practice for the health profession if the practitioner -

(a) holds either of the following qualifications relevant to the endorsement -

(i) an approved qualification;

(ii) another qualification that, in the Board's opinion, is substantially equivalent to, or based on similar competencies to, an approved qualification; and

(b) complies with an approved registration standard relevant to the endorsement.

42 An individual may apply to a National Board for endorsement of the individual's registration.[19] There are formal requirements.[20]

43 The National Law sets out the procedure for applying for endorsement in ss 99-102.

44 Section 99 provides for the manner in which an application for endorsement of an individual's registration may be made:

99 Application for endorsement

(1) An individual may apply to a National Board for endorsement of the individual's registration.

(2) The application must -

(a) be in the form approved by the National Board; and

(b) be accompanied by the relevant fee; and

(c) be accompanied by any other information reasonably required by the Board.

(3) For the purposes of subsection (2)(c), the information a National Board may require an applicant to provide includes -

(a) evidence of the qualifications in the health profession the applicant believes qualifies the applicant for endorsement; and

(b) evidence of successful completion of any period of supervised practice required by an approved registration standard; and

(c) if the applicant is required to complete an examination or assessment set by or on behalf of the Board, evidence of the successful completion of the examination or assessment.

45 Section 100 sets out the matters which the Board may investigate and further information which an applicant may be asked to provide.

(a) Investigate the applicant;

(b) Require the applicant to provide further information;

(c) Require the applicant to attend to answer questions; or

(d) Require the applicant to undergo a written, oral or practical examination.[21]

47 Section 101 provides that if, after considering an application for endorsement, the Board is proposing to refuse the application or to endorse the applicant's registration subject to a condition, the Board must give the applicant written notice of the proposal,[22] which must state the reasons for the proposal and invite the applicant to make a written or verbal submission to the Board.[23]

48 Section 102 provides that after considering the application and any response under s 101, the Board must decide to endorse (which may be subject to conditions under s 103), or refuse to endorse, the applicant's registration as sought.

49 As soon as practicable after making the decision under s 102, the National Board must give the applicant written notice of the Board's decision.[24] If the Board decides not to endorse the applicant's registration or decides to endorse the applicant's registration subject to a condition, the notice must state:

(a) The reasons for the decision;

(b) That the applicant may appeal against the decision; and

(c) How an application for appeal may be made and the period within which the application must be made.[25]

50 If a Board fails to decide an application for endorsement, within 90 days after its receipt, or the longer period agreed between the Board and the applicant, the failure by the Board to make a decision is taken to be a decision to refuse to endorse the applicant's registration.[26]

51 There are several defined terms which underlie the above provisions.

52 Section 5 of the National Law relevantly defines:

accreditation authority means -

(a) an external accreditation entity;[27] or

(b) an accreditation committee.[28]

...

accreditation standard, for a health profession, means a standard used to assess whether a program of study, and the education provider that provides the program of study, provide persons who complete the program with the knowledge, skills and professional attributes necessary to practise the profession in Australia.[29]

accredited program of study means a program of study accredited under section 48 by an accreditation authority.

...

approved program of study, for a health profession or for endorsement of registration in a health profession, means an accredited program of study -

(a) approved under section 49(1) by the National Board established for the health profession; and

(b) included in the list published by the National Agency under section 49(5).

approved qualification -

(a) for a health profession, means a qualification obtained by completing an approved program of study for the profession; and

(b) for endorsement of registration in a health profession, means a qualification obtained by completing an approved program of study relevant to the endorsement.

accreditation function means:

(a) developing accreditation standards for approval by a National Board; or

(b) assessing programs of study, and the education providers that provide the programs of study, to determine whether the programs meet approved accreditation standards; or

...

(e) making recommendations and giving advice to a National Board about a matter referred to in paragraph (a), (b), (c) or (d).

54 Each National Board must decide whether an accreditation function for the health profession, for which the Board is established, is to be exercised by:

(a) An external accreditation entity; or

(b) A committee established by the Board.[30]

55 As soon as possible after developing an accreditation standard, an accreditation authority must submit it to the relevant National Board.[31] The Board must then decide whether to:

(a) Approve the accreditation standard;

(b) Refuse to approve the accreditation standard; or

(c) Ask the accreditation authority to review the standard.[32]

56 If the Board decides to approve, s 47(3) requires the Board to give written notice to AHPRA and the accreditation authority, and s 47(6) requires the Board to publish the accreditation standard on its website.

48 Accreditation of programs of study

(1) An accreditation authority for a health profession may accredit a program of study if, after assessing the program, the authority is reasonably satisfied -

(a) the program of study, and the education provider that provides the program of study, meet an approved accreditation standard for the profession; or

(b) the program of study, and the education provider that provides the program of study, substantially meet an approved accreditation standard for the profession and the imposition of conditions on the approval will ensure the program meets the standard within a reasonable time.

58 Both the registration criteria (in s 52) and the endorsement criterion (in s 98(1)(b)) require compliance with an 'approved registration standard', which is defined as follows:[33]

approved registration standard means a registration standard -

(a) approved by the Ministerial Council under section 12; and

(b) published on the website of the National Board that developed the standard.

59 Section 12 deals with the approval of registration standards by the Ministerial Council, which have been developed and recommended by a National Board in accordance with s 38 of the National Law.

12 Approval of registration standards

(1) The Ministerial Council may approve a registration standard about:

(a) the registration, or renewal of registration, of persons in a health profession; or

(b) the endorsement, or renewal of the endorsement, of the registration of registered health practitioners.

60 However, the Ministerial Council may approve such a standard only if:

(a) Its approval is recommended by the relevant National Board; and

(b) It is not about a matter for which an accreditation standard may provide.[34]

(a) Section 12(1)(a) deals with approval of a registration standard about registration;

(b) Section 12(1)(b) deals specifically with approval of a registration standard about endorsement;

(c) Section 52 stipulates registration criteria by reference to approved accreditation standards; and

(d) Section 98(1)(b) requires that an applicant for endorsement 'complies with an approved registration standard relevant to the endorsement'.

62 When the National Law commenced, the Board implemented Transitional arrangements, provided for in the National Law under Part 12 (Transitional provisions). These arrangements were intended to facilitate the process of endorsing the registrations of psychologists already practising in specific areas of practice or who were eligible to do so.

63 Dr Kolta relies upon these Transitional arrangements, as reflected in the 2010 Guidelines and 2010 Registration Standard, extracted below, and other documents published by the Board.

64 On 31 March 2010, under s 12 of the National Law, the Ministerial Council approved a registration standard, developed by the Board under s 38, which provided the areas of practice for which the registration of a psychologist may be endorsed, including clinical psychology and counselling psychology. This standard also states that to be eligible for endorsement, in one of the approved areas of practice, a registered psychologist must have:

1. An accredited Doctorate in one of the approved areas of practice, and a minimum one year of approved supervised full-time equivalent practice with a Board approved supervisor; or
2. An accredited Masters in one of the approved areas of practice, and a minimum of two years of approved supervised full-time equivalent practice with a Board-approved supervisor; or
3. Another qualification that, in the Board's opinion, is substantially equivalent to (a) or (b).[36]

65 The 2010 Guidelines developed by the Board, under s 39 of the National Law,[37] provided, relevant to c. under the preceding paragraph:[38]

In granting endorsement under section 2.1(c) of these guidelines, the Board will use the following to guide its judgement: qualifications that are considered to be substantially equivalent to an accredited doctorate or masters in one of the approved areas of practice are:

• psychology qualifications gained overseas that have been assessed by the Board or an authority authorised by the Board as being equivalent to an accredited doctorate followed by a minimum of one year of supervised, full time equivalent practice acceptable to the Board
• psychology qualifications gained overseas that have been assessed by the Board or an authority authorised by the Board as being equivalent to an accredited masters followed by a minimum of two years of supervised, full time equivalent practice acceptable to the Board
• postgraduate psychology qualifications gained in Australia before APAC began accrediting postgraduate professional degrees that have been assessed by the Board or an authority authorised by the Board as being equivalent to an accredited masters or doctorate, followed by supervised, full time equivalent practice acceptable to the Board.

66 The 2010 Guidelines also provided details of the 'approved supervised practice', called the registrar program, whereby:

(a) A person with a doctorate qualification would complete the equivalent of one year full time psychological practice (approx. 1,500 hours), including 40 hours of supervision and 40 hours of CPD; or

(b) A person with a Masters qualification would complete the equivalent of two years full time psychological practice (approx. 3,000 hours), including 80 hours of supervision and 80 hours of CPD.[39]

67 The difference in the required hours, for a Doctorate and Masters qualification, is a recognition of the higher number of minimum supervised placement hours required in a Doctorate course (1,500 hours minimum) compared with a Masters course (1,000 hours minimum).[40]

68 In respect of the required hours, the 2011 Guidelines state that the:[41]

Board will provide some concession for practical work undertaken in the PhD.

69 The 2010 Guidelines also specify the core competencies that must be achieved by a psychologist with an AOPE in clinical psychology.[42]

The transition arrangements also attempt to provide equitable measures by which psychologists may complete, within a reasonable timeframe, an approved program to gain recognition that was begun in good faith before the commencement of the National Law.[43] ...

...

The Board will not recognise individualised non-accredited bridging courses commenced after 30 June 2010. The Board's view is these do not provide the sustained education, training and supervision that characterises the integrated experience in a specific postgraduate degree plus supervision program required for endorsement. The Board will only recognise accredited training leading to endorsed areas of practice.[44]

71 The Tribunal understands that Dr Kolta was not proposing that the Graduate Diploma of Science (Clinical Psychology), constituted an accredited bridging course. Rather, that the subjects which she completed in that course, ought to be accepted as substantially equivalent to subjects she would have completed in an approved qualification. For reasons, detailed below, the Tribunal agrees with the Applicant's position.

72 The Board outlined three principal pathways open:[45]

(a) Firstly, an automatic pathway available to psychologists who, as at 1 July 2010:

(i) Were existing members of one of the APS Colleges; or

(ii) Had been accredited by the APS to provide clinical psychology service items for Medicare.[46]

(b) Secondly, a transitional pathway available to psychologists which effectively extended the time for eligibility for automatic endorsement from 30 June 2010 until 30 June 2013, provided they applied to the APS College by 30 June 2010 (later extended to 30 September 2010) and who were:

(i) Generally-registered psychologists who met all the requirements of APS College membership prior to 30 June 2010, but did not hold such a membership;

(ii) Generally-registered psychologists who had, before 1 July 2010, entered an approved individual bridging plan (IBP) with the APS for the purpose of gaining full APS College membership and who completed the IBP by 30 June 2013 (later extended to 31 December 2013); and

(iii) Generally-registered psychologists who, on 30 June 2010, had an agreed supervision plan with a supervisor, for the purposes of gaining full APS College membership and who completed the supervision plan by 30 June 2013 (but later extended to 31 December 2013).[47]

(c) Thirdly, a 'qualifications and supervised experience' pathway which required:

(i) The applicant to hold an approved qualification and supervised practice[48] in the form of a Board approved registrar program; or

(ii) The applicant to hold a qualification and supervised practice that the Board concluded is substantially equivalent to, or based on similar competencies to, an approved qualification.[49]

73 In relation to this third pathway, on 20 December 2010, the Board published a statement called 'Transitional Arrangements for Higher Degree Students and Graduates Seeking Area of Practice Endorsement', which, in summary, relevantly allowed:[50]

(a) Any psychologist to be eligible to apply for an AOPE (with no deadline) who on 30 June 2010 was undertaking:

(i) An APAC accredited Master of Psychology degree (or combined MPsych/PhD) associated with an AOPE after completing their degree plus one year of Board approved registrar program;

(ii) An APAC accredited Doctor of Psychology degree associated with an AOPE after completing their degree;[51]

Students who completed a different APAC accredited qualification to the one they were enrolled in on 30 June 2010 are included in these transition provisions.

(b) Any psychologist to be eligible to apply for an AOPE until 30 June 2013 who completed:

(i) An APAC accredited Master of Psychology degree (or combined MPsych/PhD) associated with an AOPE between 30 June 2005 and 30 June 2010 and afterwards completed one year of a Board approved registrar program; and

(ii) An APAC accredited Doctor of Psychology degree associated with an AOPE between 30 June 2005 and 30 June 2010.

74 Accordingly, psychologists who completed a Doctorate between 30 June 2005 and 30 June 2010, or who were undertaking a Doctorate on 30 June 2010, would be able to apply for endorsement without needing to complete a registrar program. Dr Kolta seeks to rely upon this transitional pathway.

75 The reason the Board made allowance for these Transitional arrangements was explained as follows:

The [Board] has been undertaking further consultation with stakeholders about the transition and grand-parenting arrangements for area of practice endorsement. The consultation has aimed to ensure that the transition provisions applied are fair and reasonable. ... The consultation has brought to the Board's attention some anomalies in the previously approved transition provisions for higher degree students. In particular, psychologists who graduated before 30 June 2010 and therefore did not qualify under transition provisions for students, but on 1 July 2010 had not yet commenced supervision for APS College membership ... and therefore did not qualify for graduate transition provisions either. The Board wants to apply these transition arrangements in a fair and reasonable way and the difference in handling of very recent graduates, compared to those still enrolled, is something the Board seeks to address.[52]

DR KOLTA'S APPLICATION FOR ENDORSEMENT AS A CLINICAL PSYCHOLOGIST

76 On about 8 November 2010, Dr Kolta made her application for endorsement in clinical psychology under s 99 of the National Law.[53]

77 The Board received Dr Kolta's application on 12 November 2010. At this point there is a dispute between the parties as to what happened to the application:

(a) Dr Kolta states that her application was returned to her, along with all supporting documents, without any explanation and without being processed.[54] Dr Kolta states that she was experiencing medical issues towards the end of 2010, about which she gave further evidence orally and in her written statement. As it was a very stressful and difficult time, she states that she was unable to follow up with the Board as to why her application was returned without being processed.[55]

(b) The first time that Dr Kolta says that she saw what purports to be an electronic copy of a letter dated 3 December 2010 from the Board to her, refusing her application, was on 23 June 2020, as part of these proceedings.[56]

(c) The Board refused Dr Kolta's application on the basis that she had not completed an APAC accredited postgraduate degree in the area of practice for which she is seeking endorsement.

78 The Applicant's Counsel submits that, regardless of whether this letter was sent and received by Dr Kolta or not, this letter does not comply with the obligations placed upon the Board under ss 101 and 102 of the National Law.

79 Following the advice of an APHRA representative, Dr Kolta re-submitted her original 2010 application for endorsement on around 18 June 2019, with a covering letter explaining that her application had not been processed.[57]

80 By email dated 30 October 2019, the Board acknowledged receipt of Dr Kolta's application, which was in fact her re-submitted 2010 application.[58]

81 Dr Kolta contends that her re-submitted application did not constitute a new application as the original one had never been processed by the Board, in accordance with ss 101 and 102 of the National Law.

82 The Board contends that, in any event, s 106 applied, such that the Board's decision was deemed to be a refusal on or about 10 February 2011. Section 106 provides as follows:

106 Failure to decide application for endorsement

If a National Board fails to decide an application for endorsement within 90 days after its receipt, or the longer period agreed between the Board and the applicant, the failure by the Board to make a decision is taken to be a decision to refuse to endorse the applicant's registration.

83 The Applicant's Counsel submits that the Tribunal can deal with Dr Kolta's application either by:

(a) Treating the 3 December 2010 reply by the Board as non-compliant with ss 101 and 102, hence depriving Dr Kolta of her informed rights at the time, and reconsider its purported decision to refuse her application; or

(b) Exercising the power under ss 22 and 23 of Schedule 7 of the National Law.[59]

84 Relevantly, ss 22 and 23 of Schedule 7 of the National Law provide:

(1) If this Law confers a function or power on a person or body, the function may be performed, or the power may be exercised, from time to time as occasion requires.

23 Power to make instrument or decision includes power to amend or repeal

If this Law authorises or requires the making of an instrument or decision -

(a) the power includes power to amend or repeal the instrument or decision; and

(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.

85 Applicant's Counsel also referred to s 106 which allows the Board and the Applicant to agree to a longer period in which the Board can decide an application for endorsement.

86 In any event, it does not appear to be in dispute between the parties that the Board had the power to, and did, decide in 2020 in respect of Dr Kolta's application, which was first received by the Board on 12 November 2010.

87 In the Tribunal's view, the Board's sole reliance upon the s 106 deemed refusal does not fairly or appropriately recognise:

(a) its failure to comply with ss 101 and 102, by its 3 December 2010 reply; or

(b) the consequences for Dr Kolta, in depriving her of the option to rely upon the Transitional arrangements in 'a fair and reasonable way'.

88 In its Notice of Refusal, dated 17 April 2020, the Board acknowledges that:[60]

2. ... The Board must assess an application for endorsement under the Standard, Policy and Guidelines in force at the time the application is received. Even if your application was assessed against the Standard in force in 2010, you would not have qualified for endorsement in clinical psychology.

89 The Tribunal disagrees with the Board's conclusion in the above extract. If Dr Kolta's qualifications had been assessed as substantially equivalent in 2010, she could have relied upon the Transitional arrangements and been eligible for endorsement under the 2010 Registration Standard in accordance with the 2010 Guidelines. In relodging her application in 2019, she is relying upon the same qualifications. The relevant statutory provisions have not changed. The only question, in this scenario, is the Tribunal's discretion to apply the Transitional arrangements.

90 In the Tribunal's view, for reasons further addressed below, Dr Kolta was placed in a most invidious position, having regard to:

(a) The timing of her application in 2010 and the circumstances in which the Board then purported to deal with such application; and

(b) Dr Kolta's evidence that she received and relied upon advice regarding the Graduate Diploma of Science (Clinical Psychology),[61] which also appears consistent with the stated intention of the Board to facilitate endorsement where an applicant might otherwise qualify through membership or eligibility for membership of the APS.

91 On 7 February 2020, the Board notified Dr Kolta of their proposed refusal to grant endorsement in clinical psychology under s 102(2)(a) of the National Law, with reasons.[62]

92 On 28 February 2020, Dr Kolta provided her response to the proposed refusal in which she emphasised that she did not submit a new application and that her application should be considered based on the Transitional arrangements, that existed at the time.[63]

93 On 17 April 2020, the Board decided to refuse Dr Kolta's application for essentially the same reasons as previously advised:[64]

Decision

1. The Board considered the submission made by you in response to the Board's proposal to refuse the application for endorsement in clinical psychology.

2. The Board decided to refuse the application for endorsement under section 102(2)(a) of the [National Law] ... as you are not qualified for endorsement in the area of clinical psychology.

Specifically, you do not satisfy:

1. section 98(1)(a)(i) of the National Law as you do not hold an approved qualification in clinical psychology, and
2. section 98(1)(a)(ii) of the National Law as you do not hold another qualification that, in the Board's opinion, is substantially equivalent, or based on similar competencies to, an approved qualification, and
3. section 98(1)(b) of the National Law as you do not comply with an approved registration standard relevant to the endorsement.

Reason for Decision

1. The Board noted that you hold the following qualifications:

• Bachelor of Behavioural Science (Honours), La Trobe University, Australia, 2001

• Doctor of Psychology (Counselling Psychology), Swinburne University of Technology, Australia, 2009

• Graduate Diploma of Science (Clinical Psychology), Swinburne University of Technology, Australia, 2011

2. The Board noted your submission. The Board must assess an application for endorsement under the Standard, Policy and Guidelines in force at the time the application is received. Even if your application was assessed against the Standard in force in 2010, you would not have been qualified for endorsement in clinical psychology. The Standard has always required the degree to be in the area of practice being sought for endorsement.

3. You do not hold an approved qualification in clinical psychology and therefore do not meet section 98(1)(a)(i) of the National Law.

The Doctor of Psychology (Counselling Psychology) was an accredited Board-approved program for the purpose of registration and endorsement in counselling psychology.

The Graduate Diploma of Science (Clinical Psychology) is not an accredited or Board-approved program of study.

4. You do not hold another qualification that is substantially equivalent, or based on similar competencies, to an approved qualification in clinical psychology and therefore does not meet section 98(1)(a)(ii).

The Doctor of Psychology (Counselling Psychology) was an accredited Board-approved program for the purpose of registration and endorsement in counselling psychology. As such, it is not assessed as being substantially equivalent, or based on similar competencies, to an approved qualification in clinical psychology.

The Graduate Diploma of Science (Clinical Psychology) is not an accredited or Board-approved program of study.

5. You do not comply with the registration standard and therefore do not meet section 98(1)(b) of the National Law.

6. The Area of practice endorsements registration standard (effective on the date the application was received) sets out the requirements for endorsement as follows:

a) an accredited doctorate in one of the approved areas of practice, and a minimum one year of approved, supervised, full-time equivalent practice with a Board approved supervisor; or

b) an accredited Masters in one of the approved areas of practice, and a minimum of two years of approved, supervised, full-time equivalent practice with a Board approved supervisor; or

c) another qualification that, in the Board's opinion, is substantially equivalent to (a) or (b).

7. In relation to (c) above, the Guidelines on area of practice endorsement state qualifications that can be considered substantially equivalent to an accredited Doctorate or Masters degree in one of the approved areas are:

1. psychology qualifications gained overseas that have been assessed by the Board or an authority authorised by the Board as equivalent to an accredited Doctorate, followed by a minimum of one year of supervised, full-time equivalent practice in the approved area of practice acceptable to the Board.
2. psychology qualifications gained overseas that have been assessed by the Board or an authority authorised by the Board as equivalent to an accredited Masters degree followed by a minimum of two years of supervised, full-time equivalent practice in the approved area of practice acceptable to the Board, and
3. postgraduate psychology qualifications gained in Australia before the Australian Psychology Accreditation Council (APAC) began accrediting postgraduate professional degrees, that have been assessed prior to 2003 by the State or Territory Board at the time, or an authority authorised by that State or Territory Board, as being equivalent to an accredited Masters or Doctorate degree, followed by supervised, full-time equivalent practice in the approved area of practice acceptable to the Board.

The Board noted that your qualifications were not gained overseas, nor gained in Australia before APAC began accrediting postgraduate professional degrees in 2003. As such, the qualifications were not assessed as being substantially equivalent to (a) or (b) above.

8. Further, the Board noted that:

1. Completion of the APAC-accredited Doctor of Counselling Psychology degree prior to 2010 did not allow eligibility for Membership of the APS College of Clinical Psychologists. As stated in the 2004 Postgraduate Handbook provided by you, 'This program has been granted full accreditation as a fifth- and sixth-year course in psychology by the Australian Psychological Society (APS). Graduates will be eligible for Membership of the APS College of Counselling Psychologists, after a one-year internship approved by the Psychology Board of Australia' (emphasis added).

2. You also submitted Swinburne University Results Certificate for the Graduate Diploma of Science (Clinical Psychology), which requires completion of a Master or Doctoral degree in professional psychology at an Australian university for entry into the program. You stated that the program 'was advertised at the time as a bridging course for clinical psychology endorsement.' However, this is not a Board-approved program in clinical psychology. Further, the course outline indicates that 'This program provides psychologists with professional development in the area of clinical psychology ... Please note that this program does not constitute an accredited pathway towards membership of the APS College of Clinical Psychologists, or towards an AHPRA/PsyBA area of practice endorsement in clinical psychology' (emphasis added).

9. Post-qualification supervised practice cannot remedy the ineligibility regarding the qualification, due to insufficient accreditation of the program of study in the area of clinical psychology.

10. Conditions cannot remedy the ineligibility regarding the level of qualification (AQF Level) as the qualification is significantly deficient in the content relevant to endorsement in the area of clinical psychology.

94 The Board relies only upon Prof Garton's expert opinion to support its view that Dr Kolta's qualifications are not substantially equivalent, or based on similar competencies, to an accredited qualification. This opinion is based on the view that only the accreditation status of the courses and the course guidelines are relevant, and the practical competencies Dr Kolta gained in her placements or thesis are not relevant.[65] Prof Garton's evidence is addressed further below.

BOARD'S PROPOSAL FOR DR KOLTA TO QUALIFY FOR ENDORSEMENT

95 By letter to the Applicant's Counsel dated 15 January 2021, the Board's solicitors set out the pathways which the Board proposed were available to Dr Kolta to obtain an endorsement in counselling or clinical psychology:[66]

2. Bridging to a second endorsement

2.1 As set out in the Board's Decisions and Actions dated 7 April 2020, your client's Doctor of Psychology (Counselling Psychology) is an accredited Board-approved program for the purpose of endorsement in counselling psychology. It is therefore a Doctoral degree within the meaning of Pathway 3 of the enclosed diagram entitled 'Pathways to Area of Practice Endorsement' (Pathways diagram), which appears on the Board's website at www.psychologyboard.gov.au/Endorsement/Pathways-to-endorsement.aspx.

2.2 Following completion of the Doctoral degree, the Pathways diagram confirms that, to be eligible for endorsement in counselling psychology, your client must also complete a registrar program totalling 1,500 hours.[67]

2.3 Assuming your client obtains endorsement in counselling psychology, the pathway for a second endorsement is as set out in Pathway 4 of the Pathways diagram. In particular, to be eligible for a second endorsement in clinical psychology, your client is required to complete:

(a) a bridging qualification; and

(b) following completion of 2.3(a) above, a 2,250 hour registrar program.

2.4 In relation to paragraph 2.3(a) above, we note that the website of the Australian Psychology Accreditation Council Limited (APAC) lists the following bridging qualifications:

(a) a Graduate Diploma of Psychological Practice in the field of Clinical Psychology provided by the University of Queensland; and

(b) a Graduate Diploma in Clinical Psychology provided by the University of Western Australia.

2.5 The websites for the institutions offering the above qualifications indicate that neither is presently available for enrolment. Accordingly, in the event your client is considering completing this pathway, please let us know, and we will seek further information from APAC.

2.6 In relation to any recognition of prior learning which may be applicable in respect of paragraph 2.3(a) above, the Board considers that these are to be determined by the provider of the bridging qualification.

2.7 In relation to paragraph 2.3(b) above, we note that, in her report dated 21 October 2020, your client's expert, Dr Felicity Allen (Dr Allen), concludes that, to be eligible for endorsement, your client 'should gain entrance to a 12 month registrar program', which equates to 1,500 hours. The Board proposes to await the expert report in response to the report of Dr Allen before expressing a view as to whether completion of a registrar program of 1,500 hours is adequate.

3. Completion of stand-alone qualification and registrar program

3.1 Alternatively, in accordance with Pathway 1 of the Pathways diagram, your client may apply for endorsement in clinical psychology following completion of:

(a) a stand-alone qualification; and

(b) following completion of 3.1(a) above, a 3,000 hour registrar program.

3.2 In relation to paragraph (a) above, we note that APAC's website lists the following stand-alone qualifications:

(a) a Master of Psychology Practice (Clinical) provided by the Australian College of Applied Psychology;

(b) a Doctor of Philosophy (Clinical Psychology) provided by the University of Newcastle;

(c) a Master of Clinical Psychology (Advanced Entry) provided online by the University of Southern Queensland;

(d) a Master of Clinical Psychology (Post Registration), provided online by the Cairnmillar Institute;

(e) a Master of Educational and Developmental Psychology Advanced, provided by Monash University; and

(f) a Master of Clinical Psychology provided by Curtin University.

96 In response to the above proposal, the Applicant's Counsel submits: [68]

101. [Regarding 2.3(a) and 2.4 above,] the only bridging qualifications that the Board listed as APAC accredited are Graduate Diplomas in Clinical Psychology from the University of Queensland or University of Western Australia, neither of which are available for enrolment. The University of Queensland website specifically says that its Graduate Diploma in Clinical Psychology is no longer available.[69]

102. [Regarding the stand-alone qualification at 3.1(a) and 3.2 above,] there appears to be no real difference between the coursework and placements that Dr Kolta studied/undertook in her Doctorate and Graduate Diploma compared to the coursework and placements listed in the courses available. While the Board states that it is up to the provider of the qualifications as to whether any recognition of Dr Kolta's prior learning may be recognised, educational institutions generally have policies that mean that the maximum number of exemptions that could be granted is for 50% of the course.[70] This would essentially mean that Dr Kolta would have to repeat what she has already done at a cost of approximately $33,320.

103. In circumstances where the overwhelming expert evidence is clear that Dr Kolta has gained similar competencies after completing all the APAC accredited clinical psychology coursework units, clinical placements supervised by clinical psychologists and a doctoral thesis relevant to clinical psychology from a substantially equivalent qualification, it is difficult to see how such a position accords with:

1. the National Law's guiding principles to ensure that the national registration and accreditation scheme operate in a transparent, accountable, efficient, effective and fair way;
2. the National Law's primary objective to protect the public; or
3. the Board's desire to ensure that the transition to the National Law was applied in a way that was fair and reasonable for very recent graduates or those still enrolled in doctorates as at 1 July 2010.[71]

97 The Tribunal endorses this assessment and will address these matters further below.

98 The current significance of an endorsement in clinical psychology as opposed to counselling psychology is that:

(a) Clinical psychologists are entitled to provide certain service items for Medicare (which allow higher rebates for clinical psychologists); and

(b) Certain jobs, including in some hospital settings, require an endorsement in clinical psychology.

99 It is proposed to set out Dr Kolta's qualifications and experience in some detail. The Tribunal draws upon the useful summaries contained in the Applicant's Counsel's written submissions, which also reference the evidence of Dr Kolta and expert witnesses.[72] Reference will also be made to the expert opinions regarding coursework, placements and research.

100 There is no dispute as to any aspect of the qualifications and work/clinical experience which Dr Kolta has completed. Rather, the Tribunal's analysis will focus upon how such qualifications and experience should be assessed in terms of the statutory provisions.

101 Dr Kolta completed a Bachelor of Behavioural Science at La Trobe University from 1998 to 2000 and completed her honours year in 2001.[73]

102 In February 2004, Dr Kolta enrolled in an APAC accredited 5-to-7-year Doctorate of Psychology (Counselling Psychology) (Counselling Doctorate) at Swinburne and completed her Doctorate on 22 June 2009, with a high distinction average.[74]

103 In her statement, Dr Kolta explained her choice of Doctorate thus:[75]

At the time of enrolling in my doctorate in 2004, Swinburne University did not offer a Doctorate in Psychology (Clinical Psychology) [(Clinical Doctorate)], however my interest always laid within the Clinical Psychology area and I was encouraged and allowed to do my doctoral thesis and my placements in the area of Clinical Psychology as a result. At that point in time, the Victorian Act only provided for general registration of psychologists.

104 On 20 April 2009, Dr Kolta became registered as a psychologist under the Victorian Act.[76]

(a) APAC accredited Masters and Doctorate degrees in Clinical Psychology; and

(b) A Graduate Diploma of Science (Clinical Psychology),[77] which required for admission, the completion of a Masters or Doctoral degree in professional psychology, other than clinical psychology.[78]

106 In 2009, Dr Kolta enrolled in the Graduate Diploma of Science (Clinical Psychology) (Graduate Diploma CP) on the understanding that it was a bridging course to enable her to practice in clinical psychology. Dr Kolta completed her Graduate Diploma CP in 2010, with a high distinction average.[79]

107 The Tribunal notes that Dr Kolta's enrolment in the Counselling Doctorate and the Graduate Diploma CP all occurred prior to the introduction of the National Law on 1 July 2010, which introduced the concept of endorsements in specialist areas.

108 It is Dr Kolta's contention that the APAC accredited Counselling Doctorate and APAC accredited Clinical Doctorate, both offered at Swinburne, overlapped significantly in terms of content and form. Both courses were integrated programs which involved three main components: research, coursework and professional placements.[80]

109 The APAC accredited Counselling Doctorate and APAC accredited Clinical Doctorate both required completion of the following three subjects:[81]

(a) Counselling Theory & Skills;

(b) Psychological Assessment; and

(c) Psychology of the Family.

110 The Graduate Diploma CP contained all eight coursework subjects that are offered in the APAC accredited Masters and Doctorate degrees in Clinical Psychology, including the three subjects listed above,[82] plus the following five subjects:[83]

(a) Adult Psychopathology;

(b) Cognitive Behaviour Therapy & Research;

(c) Foundations of Health Psychology;

(d) Neuropsychology & psychopharmacology; and

(e) Child Psychopathology & Assessment.

111 Dr Kolta was granted the highest number of exemptions possible in accordance with Swinburne's exemptions policy, that is, four of the eight subjects in the course. This comprised the three subjects listed above, that she completed as part of her Counselling Doctorate, as well as Child Psychopathology & Assessment, which covered topics that were the subject of her doctoral thesis. She completed the four remaining subjects as part of her Graduate Diploma CP.[84]

112 Dr Kolta contends that these remaining subjects were taught in the same way by the same lecturers that taught in the Masters and Doctorate programs, used the same textbooks, reading materials and resources, and classes included students enrolled in the Masters of Clinical Psychology or Clinical Doctorate as well as those enrolled in the Graduate Diploma CP. In the course descriptions, the content of the units is described in either identical or very similar terms and there is substantial overlap or identical reference lists in the prescribed reading material. The only identifiable differences are that Doctoral degree students were sometimes offered additional contact hours in the form of two three-hour workshops and had more assessments than Masters degree and Graduate Diploma students, who were both assessed at a Masters level.[85] The Tribunal, of course, need only be satisfied as to 'substantial equivalence' not equality.

113 Dr Kolta relied upon the expert evidence of Prof Cook and Dr Allen regarding the assessment of 'substantial equivalence.'

114 Prof Cook conducted a comparative analysis of Dr Kolta's qualifications and competencies based on the course guides, his personal knowledge of the courses he taught, communications with the Head of the Psychology Department at Swinburne and the lead assessor of the APS team, APAC accreditation standards, the type of teaching, the level of assessment, the textbooks and reading material, research topic, placement activity and type of supervision.[86]

115 Prof Cook, who has taught almost all of the psychology courses offered at Swinburne, also compared the coursework that Dr Kolta completed (or gained exemptions for) and the coursework in the Masters or Doctorate in Clinical Psychology. He considers that the significant overlap in the requirements of AOPE for Clinical and Counselling Psychology and the professional similarity are relevant to assessing Dr Kolta's application.[87] Prof Cook opined that the coursework that Dr Kolta undertook was at least equivalent to other APAC/APS Masters programs in Clinical Psychology.[88]

116 Dr Allen conducted a detailed comparative analysis between the qualifications and competencies obtained by Dr Kolta from the Counselling Doctorate and Graduate Diploma CP from Swinburne and the qualifications and competencies obtainable from an accredited Doctorate or Masters in Clinical Psychology from Swinburne. She undertook this comparison based on the course guides, topics covered, the hours involved, the textbooks and other reading materials, the teaching staff, the type of assessment and the practice opportunities provided.[89]

(a) There is substantial overlap of content between the Counselling Doctorate and Clinical Doctorate;

(b) The units in the Graduate Diploma CP and Clinical Doctorate are very similar;

(c) The fact that Dr Kolta was granted the highest number of possible unit exemptions (four out of eight subjects of the Graduate Diploma CP) indicated that the academics responsible for granting the exemptions considered that Dr Kolta's prior studies were equivalent and that she was already competent in them; and

(d) Consequently, the eight academic units that Dr Kolta completed as part of the Graduate Diploma CP or gained exemptions for due to her Counselling Doctorate, were substantially the same as the coursework of the Masters or Doctorate of Clinical Psychology.[90]

118 Prof Garton recognised that 'there is substantial overlap in the competencies of all areas of practice endorsement in psychology'. She also appears to accept that Dr Kolta has completed the eight coursework units of the Clinical Doctorate. [91]

119 As part of her doctoral degree, Dr Kolta completed four psychology placements: two placements at Swinburne Psychology Clinic, one at Royal Children's Hospital and one at Austin Hospital at the Veteran's Psychiatry Unit. All of the placements were in clinical settings and under the supervision of registered supervisors with endorsements in clinical psychology.[92]

120 All students enrolled in the Masters or Doctorate of Counselling, Health and Clinical Psychology completed their first two internal placements at the Swinburne Psychology Clinic. The placement requirements for both the Doctorate in Counselling and Clinical Psychology were the same, and there were no material differences in terms of the clients referred, the hours completed, or the clinical assessment, diagnosis or treatment of clients. During these placements from 1 July 2004 to 25 October 2006, Dr Kolta assessed, diagnosed and treated children, adolescents, adults and families with a range of mental health conditions.[93]

121 Prof Cook, who established and was the Director of the Psychology Clinic at the time and who holds accreditation in the area of clinical psychology and counselling psychology, supervised Dr Kolta for her placement at Swinburne Psychology Clinic. He assessed her as successfully completing her placement and signed off that she had completed a total of 101.25 days (or 810 hours), including 175 hours of client contact, 52 hours of individual and group supervision and 604 hours of other activities such as report writing, case notes, reading, research and preparation.[94] This exceeds the minimum placement requirement of the Doctorate in both Counselling and Clinical Psychology of 75 days, 150 hours direct client contact and 600 total hours.[95]

122 Dr Kolta secured her placement at the Royal Children's Hospital (RCH) as she was already undertaking her doctoral thesis there. Furthermore, her thesis supervisor, Professor Ann Knowles, and Professor Vance (who had engaged her to work as a research assistant at the Academic Child Psychiatry Unit (ACPU)) were supportive of her completing a placement there.

123 During this placement, Dr Kolta completed clinical psychological work which involved the assessment and treatment of children and adolescents presenting with a range of mental health problems, including complex and severe mental health disorders.[96]

124 Over the course of the placement, which went from 18 April 2006 to 23 January 2007, Dr Kolta was supervised by Dr Barrett who is an endorsed Clinical Psychologist and Board approved supervisor. Dr Barrett assessed her as demonstrating good clinical skills and professional competence and signed off that she completed a total of 727 hours (or 90 days), including 128 hours of client contact, 33 hours of supervision and 566 hours of other placement activities like professional development, reading and preparation for sessions.[97] This again exceeds the minimum placement requirements of 38 to 75 days, 300 to 600 total hours, including 75 to 150 hours of direct client contact.[98]

125 Dr Kolta completed her last placement at the Veteran's Psychiatry Unit (VPU) at the Austin Hospital, which is a 'leading provider of mental health services to Australian veterans and war widows'. It has 'developed a considerable teaching and research reputation in the common mental health difficulties seen following trauma such as post-traumatic stress disorder (PTSD), mood disorders, anxiety disorders and substance abuse'.[99] Student placements are typically granted to clinical psychology students, but Dr Kolta was successful in obtaining a placement at the VPU due to the clinical nature of her previous placement at RCH as well as her performance in the interview, in which she expressed her desire to work with adults with PTSD and trauma related conditions having worked with children with the same conditions.[100]

126 During this placement, Dr Kolta assessed, diagnosed and treated a range of mental health conditions, including PTSD, severe anxiety, mood disorders, drug and alcohol addictions and psychosis. Over the course of this placement, which went from 3 September 2007 to 10 April 2008, Dr Kolta was supervised by Dr Tony McHugh who was the Clinical Co-ordinator of the PTSD Program at Austin Health and an endorsed Clinical Psychologist. Dr McHugh assessed her as successfully completing a total of 654 hours (or 77.5 days) comprising 138 client contact hours, 44 supervision hours and 472 hours of other activities such as case notes, planning, preparation and reading.[101] Again, this exceeds the minimum placement requirements of 38 to 75 days, 300 to 600 total hours, including 75 to 150 hours of direct client contact.[102]

127 Dr Barrett, who supervised Dr Kolta's placement at the RCH, confirmed that the placement was an equivalent and appropriate placement in the area of clinical psychology, and would have satisfied the requirements, at the time, of a student undertaking a Masters or Doctorate of Clinical Psychology.[103]

128 Prof Cook opined that Dr Kolta has met, in full, the placement requirements for both clinical and counselling psychology in APAC accredited programs.[104]

129 Dr Allen made the following observations regarding Dr Kolta's placements:

(a) The two placements at the Swinburne Psychology Clinic involved the assessment, diagnosis and treatment of child and adult clients; and the disorders that Dr Kolta encountered are often, but not exclusively, treated by clinical psychologists;

(b) The external placements were in medical settings involving the assessment, diagnosis and treatment of patients with clinical illnesses, including rare and severe problems that would rarely be encountered in psychological practices outside hospital settings; and

(c) All placements were supervised by clinical psychologists; and two of Dr Kolta's supervisors have provided letters attesting to the equivalence and appropriateness of the placements for a student undertaking a clinical psychology qualification.

130 Dr Allen opined that the opportunities provided by these four placements, although completed under a Counselling Psychology aegis, would have satisfied the requirements of equivalent placements in Clinical Psychology.[105]

131 Prof Garton acknowledged that the duties Dr Kolta undertook on placement 'would appear to be similar to the competencies of a clinical psychologist' and that her placements were 'supervised by psychologists with clinical area of practice endorsement'.[106] However, in Prof Garton's opinion the placements completed by Dr Kolta, as part of her Counselling Doctorate, cannot be considered substantially equivalent to those of a Clinical Doctorate, because they were undertaken as part of the former course.[107] This is based on her interpretation of the 'fundamental differences' between Clinical Psychology and Counselling Psychology.

132 Both Prof Cook[108] and Dr Allen directly contest Prof Garton's interpretation.

133 Dr Allen concludes that, given the clinical nature of Dr Kolta's placements, with two in medical settings dealing with patients with clinical diagnoses, there would not have been any material difference to the competencies obtained, had Dr Kolta undertaken the placements as part of a Clinical Doctorate instead.[109]

134 Prof Garton also states that the placements cannot be substantially equivalent because she undertook her placements before she had completed the four remaining units in clinical psychology.[110]

135 Dr Allen rejects Prof Garton's assessment because:

(a) First, these sequencing issues can arise in any degree due to the difficulty of obtaining supervised placements and such issues do not generally disqualify a person from completing their degree;

(b) Secondly, there was no evidence presented by Prof Garton pointing to how this sequencing difference would have made any material difference to the competencies obtained by Dr Kolta. This is particularly important given the extent of Dr Kolta's competencies gained through her qualifications in assessing, diagnosing and treating a very broad range of disorders in both adults and children during her research and placement work; and

(c) Thirdly, the legislative requirements do not require perfect equivalence or competencies, but substantial equivalence and similar competencies, which Dr Allen says Dr Kolta has achieved.[111]

136 The Tribunal further notes from its examination of the relevant materials in the Tribunal Book that the first two placements (at Swinburne) are not required to be specialist placements. They are aimed at building foundational assessment, counselling, and professional practice skills, prior to external placements, and are the same across clinical and counselling streams.

137 Both the RCH and the VPU placements were indistinguishable from a clinical psychology placement in their duration, setting, client exposure, mental health problems treated, services provided by Dr Kolta, and receipt of supervision from a clinically endorsed supervisor.[112]

138 The Tribunal reasonably concludes that notwithstanding that the course subject names referred to 'counselling', the documented professional activities, client exposure and supervision for the two external placements were all 'substantially equivalent' to placements that would meet requirements as part of a clinical psychology degree.

139 Further, in the Tribunal's opinion, there was no convincing argument advanced by the Board or Prof Garton that the sequencing of her clinical psychology postgraduate diploma subjects after these placements (although undesirable) would have, or did, constitute a substantial barrier to attaining competence in her case. Her placements focused on treatment of clinical cases, and her work was assessed as competent by Board approved clinically endorsed supervisors.

140 Accordingly, the Tribunal is comfortably satisfied that the supervised placements that Dr Kolta received in her Counselling Doctorate, were substantially equivalent to that which she would have received in a Clinical Doctorate or MPsych Clinical degree.

141 The Tribunal further notes that Dr Kolta's continuing professional development, particularly her post Doctorate supervised clinical experience, provides further evidence and comfort to the Tribunal as to opportunities taken by Dr Kolta to consolidate her skills following the Graduate Diploma CP.

142 Dr Kolta completed her doctoral thesis titled 'An exploratory investigation of key clinical and neuropsychological characteristics in children and adolescents with Attention Deficit Hyperactivity Disorder (ADHD) and/or Obsessive Compulsive Disorder' (OCD) under the supervision of Professor Ann Knowles. Both ADHD and OCD are mental health disorders which the Board considers a psychologist with an endorsement in clinical psychology can assess and treat.[113]

143 Dr Kolta conducted the research for her thesis at the ACPU, which operates through the Department of Paediatrics, University of Melbourne, at the RCH, where she also worked as a research assistant under the supervision of Professor Vance. As part of her doctoral thesis, she recruited and clinically assessed a total of 130 children and adolescents between the ages of 7 and 16 years and categorised them into four groups fulfilling the DSM-IV criteria for ADHD, OCD, comorbid ADHD and OCD, and health control participants. Over the life of her thesis, Dr Kolta completed a total of approximately 130 days or 1,040 hours of practice including 910 hours of direct client contact and over 100 hours of supervision.[114]

144 Dr Ken Chung-Ren Pang (Professor at University of Melbourne; Honorary Position at Department of Paediatrics at the RCH) and Associate Professor Mark Bellgrove (current Director of Research at the Turner Institute for Brain and Mental Health and a Professor of Cognitive Neuroscience in the School of Psychological Science at Monash University) provided examiner reports which assessed Dr Kolta's doctorate against set criteria of Swinburne and recommended her doctorate be passed with minor amendments.[115] The examination reports frequently reference the clinical nature of the thesis and how completion of the thesis would have improved Dr Kolta's clinical skills.[116]

145 Dr Maja Nedeljkovic, an Associate Professor of Psychology, Director of Swinburne Psychology Clinic and an endorsed clinical psychologist, was asked by Professor Ann Knowles to review a draft of Dr Kolta's thesis prior to her submission. Dr Nedeljkovic states that her doctoral thesis would have satisfied the requirements of an equivalent level thesis in clinical psychology.[117]

146 Dr Allen agrees with Dr Nedeljkovic that the clinical nature and quality of Dr Kolta's thesis would have satisfied the requirements of a Clinical Doctorate. In this respect, she observes that:[118]

1. the topic concerns the neuropsychological functioning of the participants,
2. the sample was sourced from a hospital based (RCH) Child Psychiatry Unit,
3. the literature review considers the molecular genetics and epidemiology of the disorders concerned as well as possible effects of adverse life events and family functioning, and
4. extensive clinical assessments and standardised psychological testing of both the participants and their families with respect to both their cognitive capacities and psychosocial functioning have been conducted.
5. [she also observes that 130 participants] is unusually large for a clinical thesis [and that Dr Kolta] successfully conducted and interpreted both repeated measures ANCOVA and one-way ANCOVA - quite sensitive and complex statistics;
6. [and the examiners] were both very complimentary about the quality of the work.

147 Dr Allen considers that Dr Nedeljkovic's assessment that Dr Kolta's thesis would have been satisfactory in a Clinical Doctorate should be given weight given that she is accredited to supervise both Masters and Doctoral students and her fields of research include Health, Clinical and Counselling psychology.[119]

148 Prof Cook is also of the opinion that Dr Kolta's thesis involved advanced research in a topic that addressed issues relevant to both counselling psychology and clinical psychology and contained recommendations for practitioners in both these areas of practice, such that it would be acceptable to both counselling and clinical accreditation.[120]

149 Prof Garton gives no specific consideration to Dr Kolta's doctoral thesis in her report.

150 Prof Cook opined that as a result of Dr Kolta's completion of the coursework, placements and research components of both the Counselling Doctorate and the Graduate Diploma CP, she has achieved equivalence with the educational requirements and professional competencies for registration for AOPE in clinical psychology.[121] Prof Cook states that the critical issue that must be held as primary is whether Dr Kolta has presented a unique case for an AOPE in clinical psychology and whether, if successful, it would provide an unacceptable risk for the Australian community. Prof Cook opined that there is no such risk and that, notwithstanding the sequencing of Dr Kolta's supervised experience, the weight of professional and academic evidence supports this.[122]

151 Dr Allen also concludes that Dr Kolta's qualifications, comprising the coursework, placements and research in her Counselling Doctorate and the coursework in her Graduate Diploma CP, are substantially equivalent to a Clinical Doctorate. Dr Allen further states that there are no public health or safety issues which would preclude Dr Kolta from clinical endorsement.[123]

152 Dr Kolta's primary position is that she is not required to complete any further registrar program by reason that if her qualifications are found to comply with s 98(1)(a)(ii) of the National Law, then she will also comply with the Transitional arrangements identified above and addressed further below.

153 Finally, it is necessary to examine the evidence regarding Dr Kolta's supervised practice and its equivalence to clinical psychology.

154 The 2019 Registration Standard provides that, in addition to completing a substantially equivalent qualification to an APAC accredited qualification in the area of endorsement, Dr Kolta was required to have completed a minimum one year of approved supervised full-time equivalent practice with a Board approved supervisor.

155 Dr Kolta contends that, assuming her qualifications are deemed to be substantially equivalent, she is eligible for endorsement in clinical psychology without the further completion of a registrar program or supervised practice. This is on the basis that the Transitional arrangements applied such that no further registrar program was required.

156 Alternatively, the supervised practice she has completed, either as part of her Doctorate or post-registration, is substantially equivalent to a registrar program and those who have directly supervised her consider her to be competent for endorsement as a clinical psychologist. Accordingly, Dr Kolta contends that she should not be required to complete any further registrar program.

157 As set out above, the Board intended for its Transitional arrangements to be applied in a fair and reasonable way so that those who had completed a Doctorate either between 30 June 2005 and 30 June 2010, or who were undertaking a Doctorate as at 30 June 2010, would be eligible to apply for an AOPE without completing a registrar program. At the same time, the Board explicitly stated in its 2010 Guidelines that it will not recognise individualised non-accredited bridging courses commenced after 30 June 2010. However, the Applicant invites the Tribunal to draw a reasonable inference that the Board would recognise such bridging programs that were commenced in good faith, prior to the introduction of the National Law.[124]

158 Significantly, the pathway created by the Transitional arrangements were acknowledged by the Board in the Pereira case, as noted by Kyrou J:

105 Regrettably, the precise statutory bases for all aspects of the transitional pathway are far from clear. However, as neither party sought to argue that that pathway was beyond the Board's power, I will proceed on the basis that the pathway was valid. It appears from the evidence before VCAT that, in establishing the pathway, the Board took the view that membership or eligibility for membership of the APS College of Clinical Psychologists as at 1 July 2010 - or within the extended timeframe - constituted a qualification which was substantially equivalent to, or based on similar competencies to, an approved qualification for the purposes of s 98(1)(a)(ii) of the National Law. For the purposes of this pathway, where the APS placed a psychologist on an IBP [individual bridging plan] to enable the psychologist to satisfy the APS' requirements for membership of the College of Clinical Psychologists and the APS subsequently certified that the psychologist had successfully completed the IBP and was eligible to become a member of that College, the Board endorsed the psychologist's registration in the practice area of clinical psychology.

159 Dr Kolta was enrolled as at 30 June 2010 in a program which, while not accredited by APAC to confer recognition as a clinical psychologist, had been designed in consultation with the APS, the College of Clinical Psychologists and the APS Medicare Team, such that on a case-by-case basis, it may constitute the bridging training required for eligibility of the APS College of Clinical Psychologists (and therefore an avenue for endorsement to Clinical Psychology).[125] Furthermore, the expert opinion relied upon by Dr Kolta is strongly supportive that the Graduate Diploma CP combined with her Counselling Doctorate is substantially equivalent to a Clinical Doctorate.

160 The Applicant contends that these Transitional arrangements still apply for those who were undertaking a Doctorate as at 30 June 2010 and there is no deadline by which to apply for an area of endorsement.[126]

161 While the Transitional arrangements required those who had completed a Doctorate between 30 June 2005 and 30 June 2010 to apply before 30 June 2013, Dr Kolta did comply with that deadline by making her original application in November 2010.

162 Although the Board did not assess Dr Kolta's application until 2020, the Applicant's Counsel submits that:

(a) Her application should still be assessed as having been received inside of this deadline; or

(b) Alternatively, the Board (and therefore the Tribunal) has the power to extend the 31 December 2013 deadline. The Tribunal accepts that authority for such power was clearly acknowledged in Pereira's case where Kryou J observed:[127]

121 The Board has not submitted that the fact that all of the time periods set out in the transitional pathway expired on 31 December 2023 means that it is no longer possible for the plaintiff to be considered under the transitional pathway. As the Board initially had power to impose these time limits, it would necessarily have the power to extend them in the case of the plaintiff who applied for consideration under the transitional pathway prior to December 2013.

163 The Tribunal notes the Board's written indication that it is prepared to waive the requirement for Dr Kolta to complete any registrar program if she were to apply for endorsement in Counselling Psychology. This suggests that the Board considers her to be eligible under these Transitional Provisions and that her supervised practice completed as part of her degree are substantially equivalent to a one year registrar program as required under the registration standard. Further, it indicates that she does not pose any risk to the public.[128]

164 In final addresses at the Hearing, the Board's Counsel gave a further indication of the Board's current position on the application of the Transitional Provisions to the current application. This is addressed below.

165 The Applicant contends that the above outcome is consistent with the guiding principle of the National Law to ensure that endorsements are assessed in a transparent, accountable, efficient, effective and fair way and for the protection of the public. The Tribunal agrees.

166 Alternatively, if the Tribunal does not accept the application of the Transitional arrangements, Dr Kolta submits that she has still shown substantial equivalence with the registrar program as prescribed in the 2019 Guidelines, which encompass three components:[129]

(a) Psychological practice;[130]

(b) Supervision with a Board approved supervisor;[131] and

(c) Continuing professional development.[132]

167 The Guidelines further explain, under 'Competencies', that:[133]

Psychological practice means any work, whether remunerated or not, in which the individual uses their skills and knowledge as a registered psychologist in the profession. Practice in this context is not restricted to the provision of direct clinical care. It also includes using professional knowledge in a direct, non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that affect the safe, effective delivery of services in the profession.

168 The Applicant's Counsel submits that the above broad definition of psychological practice is reflected in the extensive practice documented in Dr Kolta's statements and attachments.

169 Dr Kolta contends that her qualifications are substantially equivalent to an APAC qualification accredited as a fifth to seventh year of study such that only 1,500 hours of a registrar program or equivalent is required.[134] Dr Kolta has completed more than the required number of hours of substantially equivalent supervised practice in clinical psychology, including by Board approved supervisors endorsed in clinical psychology.

170 In fact, in her Counselling Doctorate and supervised placements in her Graduate Diploma CP she completed more than 3,000 hours, including by Board approved supervisors endorsed in clinical psychology.

171 The matters specified in the Guidelines as to supervision, such as:

(a) Must be by the principal supervisor for a least 50%; and

(b) On an individual (one to one) basis for at least 66%;

are matters satisfied by the supervision performed by Dr Barrett.

172 As part of her Doctorate degree and as outlined above, Dr Kolta completed 2,191 hours of psychological practice in clinical settings supervised by clinical psychologists plus 1,040 hours of supervised practice in clinical settings (more than the minimum 1,500 hours of supervised practice required in Doctorate degrees). Expert opinion on behalf of Dr Kolta confirmed that the competencies gained by Dr Kolta from the supervised practice are substantially equivalent to the competencies that one would have gained from a Doctorate in Clinical Psychology.

173 The 2010 Guidelines recognise that satisfactory performance in the supervised placements and psychological practice, as part of a research doctorate, can contribute significantly to a reduction in the number of hours necessary to reach the equivalence required for a registrar program.[135]

174 Dr Kolta completed over 3,200 hours of supervised psychological practice as part of her Doctorate degree.[136]

175 Dr Kolta has also completed the following periods of supervised practice since becoming registered as a psychologist:[137]

Research assistant at the ACPU, RCH - clinical assessment of wide range of mental health disorders in children and adolescents

Private Psychologist, Based within ACPU, RCH - assessment, diagnoses and treatment of children and adolescents who presented with moderate to severe mental health conditions

34 hours with Board approved Clinical Psychologist, Jo Winther

Penola Catholic College - assess, diagnose and provide individualised treatment plans, generally through individual one to one therapy and small group intervention programs

117 hrs with Board approved Psychologist, Sara Clark, and Jacqueline Novacek and on occasion, Teeka Dour, endorsed Educational developmental Psychologist

10 hrs with Board approved Clinical Psychologist, Dr Suzanne Barrett

St Bernard's College - assessment, diagnosis and development of individualised treatment plans and to coordinate the wellbeing team

12 hrs with Board approved Psychologist, Jacqueline Novacek

Ava Maria College - assess, diagnose and develop individualised treatment plans for students with prevalent mental health disorders.

6 hrs with Clinical Psychologist, Dr Suzanne Barrett

61 hrs with Board approved clinical psychologists

176 Dr Kolta also has the support of those who have directly supervised her and assessed her as competent to be endorsed as a clinical psychologist:

(a) Alasdair Vance, the Head Academic of Child Psychiatry, states as at 26 October 2010 that Dr Kolta:

has performed her duties to an excellent standard both clinically and academically. In her contact with patients and research study participants she has conducted herself in a professional manner with great care and courtesy. As noted above, Marian has been exposed to a wide range of clinical cases through her work as a research assistant and more recently as a psychologist. She has gained a high level of clinical experience and I have received very good feedback from families. I thoroughly support the appointment of Dr Kolta as a clinical psychologist.[138]

(b) Prof Cook, who is a Board approved registered supervisor for psychologists seeking AOPE for clinical and counselling psychology in the Registrar Program, considers that Dr Kolta's post-Swinburne placement activities exceed the hours necessary (he assumed 2,250 hours was required) for meeting AOPE in Clinical Psychology).[139] He further states that:

Dr Kolta's application should be approved and that she should be permitted to serve the community with her very evident skills and knowledge.[140]

(c) Dr Barrett, who is an endorsed clinical psychologist and an experienced Board approved supervisor for the clinical Registrar Program, has been providing supervision of Dr Kolta since 2019. She considers that Dr Kolta's psychological practice within school settings has been predominantly clinical in nature and has predominantly focused on prevention, assessment and treatment of students presenting with a range of mental health problems, including complex and severe mental health disorders with comorbid conditions. While Dr Barrett's supervision has not involved formal evaluation of the competencies, as what would usually be required for a Registrar Program, she states, in her opinion, that Dr Kolta has developed all of the competencies required for clinical psychology endorsement and recommends that she be considered eligible for endorsement as a clinical psychologist.[141]

177 Dr Allen further concludes that Dr Kolta has the required competencies to be endorsed as a clinical psychologist and ought be endorsed, including on the basis of:

(a) Her placement information, where Dr Kolta has achieved competence in the assessment, diagnosis and treatment of a range of disorders - many of them serious and/or rare; and

(b) Working successfully in clinical settings after graduation and obtaining positive references from senior personnel in all of these areas.[142]

178 The Tribunal notes that Dr Kolta has detailed her continuing practical experience in her Supplementary Statement.

179 The Board's Counsel presented the following analysis as to why Dr Kolta is not eligible for endorsed registration in clinical psychology.

180 Under the June 2010 APAC Accreditation Standards (the 2010 Accreditation Standards), Swinburne offered four programs in psychology that had been accredited by APAC, the relevant accrediting authority:

(a) Two were approved programs of study for the clinical psychology AOPE: Master of Psychology (Clinical Psychology) and Professional Doctor of Psychology (Clinical Psychology); and

(b) Two were approved programs of study for the counselling psychology AOPE: Master of Psychology (Counselling Psychology) and Professional Doctor of Psychology (Counselling Psychology).

181 The 2010 Accreditation Standards also provides:[143]

There should be three main components in the course: coursework, research and practical placement. The course must be structured so that the learning experiences across these three components are integrated.

182 Prof Garton gave oral evidence that it has always been very important, as part of the accredited standards, that the above components have been integrated and that 'in order to practice, students have to be able to be aware of and know the appropriate psychological theories for the type of practice they propose to engage in, and it is a commonly held view that the coursework should precede any form of practice undertaken by students'.

183 Under the 1 January 2019 APAC Accreditation Standards (2019 Accreditation Standards), there is a similar reference to the integration of 'theory and practice in an appropriate professional environment'.[144]

184 The Board relies upon the evidence of Prof Garton that Dr Kolta's Counselling Doctorate, taken in conjunction with her Graduate Diploma CP, is not substantially equivalent to an approved program for clinical psychology, namely the Master of Psychology (Clinical Psychology) or Professional Doctor of Psychology (Clinical Psychology), which (by 2010) APAC had accredited for the clinical psychology AOPE.[145]

Dr Kolta has not undertaken placements in clinical psychology as part of an integrated program in clinical psychology (including coursework, placements and research).[146]

[Dr Kolta's] placements were undertaken as part of the Doctor of Psychology (Counselling Psychology) and there were no placements associated with the Graduate Diploma of Science (Clinical Psychology). Although the placements are claimed to be clinical in nature and supervised by psychologists with clinical area of practice endorsement, they were undertaken while Dr Kolta was enrolled in a training program for counselling psychology.[147]

As Dr Kolta is claiming that her placement experiences were clinical in nature, it would be expected that any relevant coursework would be completed prior to those placements so that the knowledge necessary for clinical work has been obtained and can be applied to inform practice.[148]

186 In her oral evidence Prof Garton confirmed that the coursework undertaken by Dr Kolta was done in isolation, subsequent to her placements and not part of an integrated program.[149]

187 Under cross examination Prof Garton agreed that:

(a) The applicable accreditation standard for assessing Dr Kolta's qualification was the one in place when she completed her Counselling Doctorate, namely the 2010 Accreditation Standard; hence the relevant accreditation standard which should be applied is the 2010 Accreditation Standard;

(b) Clause 5.4.3 under the 2010 Accreditation Standards does not prescribe the sequence in which the three course components must be undertaken;[150]

(c) The 2010 Accreditation Standard does not provide for particular competencies for different areas of endorsement as these had been previously contained in the various APS guidelines;

(d) The title of Dr Kolta's doctoral thesis could have relevance to clinical psychology, but would not go any further as she considered it could also have relevance to other disciplines;[151]

188 Prof Garton observed that the Graduate Diploma CP was intended to provide a bridging program for psychologists seeking entry to the APS College of Clinical Psychologists, and consequent eligibility to provide clinical psychology services under Medicare.[152] However, this was not intended as a pathway to render a doctorate in counselling psychology substantially equivalent to a doctorate in clinical psychology, for the purpose of an endorsed registration.[153]

189 Prof Garton also stated, to the effect, that Dr Kolta's doctoral thesis was irrelevant, as 'there was no requirement that the thesis be in any area... it was merely a research paper.'[154]

190 When making a comparison between the accredited qualification (for clinical psychology) and the qualifications which Dr Kolta relied upon, for substantial equivalence, Prof Garton confirmed that she did not consider the competencies which Dr Kolta was assessed as obtaining, in order to determine whether they were substantially equivalent to the competencies she would have obtained had she undertaken an approved qualification.

191 Accordingly, when making her comparative assessment, Prof Garton:

(a) Only looked at the coursework in the approved qualification (Clinical Doctorate) as against the coursework in the Counselling Doctorate;

(b) Disregarded Dr Kolta's doctoral thesis and any competencies thereby gained;

(c) Disregarded the Graduate Diploma CP; and

(d) Disregarded all the practical placements (and any competencies thereby acquired), even though conducted in clinical settings and supervised by clinical psychologists, as these were completed as part of her Counselling Doctorate.

192 Prof Garton says that the Counselling Doctorate and the Graduate Diploma CP were not undertaken as part of an integrated program. Furthermore, the Graduate Program has never been assessed and accredited by APAC.

193 However, the Tribunal notes that in the Swinburne description of the course, under 'Professional Recognition', it is stated:

Note: Although this program offers specialist training in clinical psychology, satisfactory completion of the program will not in and of itself confer recognition as a clinical psychologist ...

The program was designed in consultation with the APS, the College of Clinical Psychologists and the APS Medicare Team to meet the requirements of psychologists wishing to re-specialise in clinical psychology and on a case-by-case basis, completion of the program may constitute the bridging training required for eligibility of the APS College of Clinical Psychologists and consequent eligibility to provide clinical psychology services under Medicare.

194 Finally, Prof Garton states that Dr Kolta does not comply with the Registration Standard: Area of Practice Endorsements.

195 The Board's Counsel submitted that the course materials[155] for each of the Clinical and Counselling Doctorates accredited by APAC (applying the rules for accreditation and accreditation standards) were each approved for a distinct area of practice, and therefore cannot be regarded as substantially equivalent: 'To do so would be contrary to the statutory scheme'.

196 Both Counsel agreed to the effect that the outcome of the Tribunal's review rests upon an interpretation of s 98(1) of the National Law and its application to the essential facts of the case, which are not otherwise in issue.

197 The Board's Counsel referred to the importance of maintaining certainty and integrity within the national regulatory scheme such that registration is transferrable fairly and equitably between participating jurisdictions. To this end, Counsel submitted that the transparency, efficiency, fairness and uniformity can be achieved only through the recognition of accredited qualifications and not by the Board or Tribunal assessing individuals and their competencies, in terms of actual outcomes, which would undermine the scheme.

198 The Board's primary position relies upon a fundamentally different approach to the interpretation of s 98(1)(a)(ii):[156]

33 On the Board's position, what is relevant is a comparison between the programs of study at the level of focus required under Part 6, not on a comparison between: (i) learning outcomes that were achieved in fact; and (ii) hypothetical learning outcomes that might have been achieved from a comparator approved qualification (in circumstances where learning outcomes from that approved qualification would be completely irrelevant under s 98(1)(a)(i), if the person simply held that approved qualification).

199 In setting out the Board's reliance upon s 98(1), the Board's Counsel has drawn upon several prerequisite statutory provisions and definitions. Accordingly, for completeness, the Tribunal includes the following extracts from the Counsel's Closing Supplementary Submissions, starting with Counsel's analysis of the statutory function and purpose of s 98(1)(a)(i):

11 The statutory function and purpose of s 98(1)(a)(i) is to ensure that - before a person is permitted to hold themself out to the public as endorsed in an area of practice endorsement - they have undertaken a program of study, regulated under the National Law for that area of practice to ensure that (i) the program of study itself, and (ii) the education provider that provides the program of study, are and remain adequate.

11.1 As in s 53(a) (for registration), under s 98(1)(a)(i) an approved qualification is the primary way to satisfy the qualification requirement.

11.2 An approved qualification for endorsement of registration in a health profession means a qualification obtained by completing an 'approved program of study' relevant to the endorsement.[157]

11.3 An 'approved program of study' is defined, for endorsement of registration in a health profession, as 'an accredited program of study' that is approved by the relevant National Board under s 49(1) and included in the list published by the National Agency.[158]

11.4 An 'accredited program of study' means a program of study accredited under s 48 by an accreditation authority.[159] A 'program of study' means 'a program of study provided by an education provider'.[160]

11.5 Section 48 empowers an 'accreditation authority' for a health profession to accredit a program of study only if, after assessing the program, the authority is reasonably satisfied that: (a) the program of study, and the education provider that provides the program of study, meet an approved accreditation standard for the profession; or (b) the program of study, and the education provider that provides the program of study, substantially meet an approved accreditation standard for the profession and the imposition of conditions on the approval will ensure the program meets the standard within a reasonable time.

11.6 An 'accreditation authority' relevantly includes an 'external accreditation entity' (such as APAC) that exercises an accreditation function. Part 6 of the National Law is devoted to accreditation. Relevantly, 'accreditation function' includes 'assessing programs of study, and the education providers that provide the programs of study, to determine whether the programs meet approved accreditation standards'.[161] Under s 43, the National Board for a health profession must decide whether an accreditation function for its health profession is to be exercised by an external accreditation entity (here, APAC).

11.7 An 'accreditation standard' for a health profession means 'a standard used to assess whether a program of study, and the education provider that provides the program of study, provide persons who complete the program with the knowledge, skills and professional attributes necessary to practise the profession in Australia'.[162] An accreditation standard may be developed by an external accreditation entity.[163] It must then be approved by the relevant National Board, before it comes into force.[164]

11.8 Once an accredited program of study becomes an approved program of study (by approval by the National Board and publication on the list), the accreditation authority that accredited it must monitor the program of study and the education provider that provides it, to ensure the program and the provider continue to meet an approved accreditation standard, otherwise it must impose conditions or revoke accreditation.[165]

12 In other words, s 98(1)(a)(i) ensures that a person holding themself out as having a protected area of practice endorsement title has completed a program of study regulated under Part 6 of the Act, which focuses entirely on the program of study (in the abstract) and the education provider that provides the program, and not on how the program was or will be undertaken by any particular student, or the competencies any particular student got from undertaking the program of study.

13 Dr Kolta's Doctor of Psychology (Counselling Psychology) satisfied s 98(1)(a)(i) for endorsement in counselling psychology - not because of the competencies she in fact gained, what she researched, or who supervised her practice placement subjects, but because (under Part 6):

13.1 the Board had decided APAC (an external accreditation entity) would perform the accreditation function of assessing that type of program of study and the providers of that type of program of study for counselling psychology for the health profession of psychology;

13.2 APAC had developed, and the Board had approved, an accreditation standard for the health profession psychology (including the areas of practice counselling and clinical);

13.3 APAC, after assessing the Doctor of Psychology (Counselling Psychology) was reasonably satisfied that that program of study and Swinburne, being the education provider that provided it, met the approved accreditation standard for psychology, and accredited the program as an accredited program of study for psychology, and for the counselling psychology area of practice endorsement.

13.4 It followed that Dr Kolta had a qualification obtained by completing an approved program of study relevant to counselling endorsement.

14 What Dr Kolta did while completing the counselling qualification, her thesis topic, or the nature of her placements and supervisors, has no role to play. It was irrelevant for the purposes of s 98(1)(a)(i) of the National Law whether her studies as a student undertaking that program of study were in fact more like studies that would ordinarily be undertaken by a student in the Doctorate of Psychology (Clinical Psychology). What mattered was that the program provider had conferred on her a degree in the program of study that had been approved under Part 6.

...

17 The focus of Part 6 is on regulating the content and standard of the program of study and the education provider who provides it. This is born[e] out by the content of the accreditation standards in evidence in the Tribunal Book, and the oral evidence Professor Garton gave about those standards and the assessment process.

200 In summary, the Board submits that APAC, as an external accreditation entity, developed an accreditation standard,[166] which is then approved by the Board[167] and published on the Board's website[168] and then used to assess a program of study[169] and not the individuals emerging from that program of study.[170]

201 Hence, Counsel described 'a very careful and articulated scheme for ensuring that an approved qualification is one which meets a standard which has been designed to ensure that that program of study will provide people with the right sets of skills and experience'. In essence, Counsel submitted that the approach advanced by Counsel for Dr Kolta seeks to use s 98(1)(a)(ii) to bypass this carefully constructed scheme by relying directly upon the competencies, in fact, of an individual.[171]

202 Interposing at this point, the Tribunal accepts that the Counsel's analysis of the interpretation and operation of s 98(1)(a)(i) is uncontroversial. The avenue for approval prescribed under s 98(1)(a)(i) is clearly designed to afford the most direct route to satisfy endorsement criteria. Indeed, if an applicant can satisfy that they have satisfactorily completed an approved qualification, relevant to the endorsement sought,[172] the endorsement will be granted.

203 The Board's Counsel then turned to the interpretation of s 98(1)(a)(ii), which refers to 'another qualification that, in the Board's opinion, is substantially equivalent to, or based on similar competencies to, an approved qualification':

19 The Board submits that the plain intention of this provision is to ensure that, if a person holds a qualification that compares in all important respects to a program of study that has been accredited and approved under Part 6, then the person may satisfy the requirement.

...

20 This does not involve an assessment of the specific learning outcomes or competence of the individual. That would be to undermine the function and purpose of the qualification requirement. Rather, it involves an assessment of the degree itself, not what the person learned while undertaking it.

21 There is no standardised examination of the kind contemplated (for registration) by s 53(c), which is a statutory measure by which the competency of an individual may be measured. Were substantial equivalence or competencies concerned with equivalence of learning outcomes, then s 53(c) would be an unnecessary addition to s 53(b).

22 Nor does the text of s 98(1)(a)(ii) support such a fundamental departure from the statutory role of s 98(1)(a)(i). It is the qualification that must be substantially equivalent to an approved qualification. It is the qualification that must be based on similar competencies to the approved qualification. The qualification cannot comprise an individualised assessment of a person's skills and experience.[173]

23 The text simply does not support (or permit) a conclusion that the Doctorate of Psychology (Counselling Psychology) (along or together with the unaccredited Graduate Diploma) was substantially equivalent to the accredited Doctorate of Psychology (Clinical Psychology).

23.1 The Doctorate of Psychology (Clinical Psychology) was accredited by APAC, following assessment, as meeting the accreditation standards for clinical psychology, based on an assessment (as contemplated by the accreditation standards) of both the degree and Swinburne as its provider. The subjects included Research Project (Clinical) A, B, C, D, E, F, G and H and Clinical Placement A1, A2, B1 and B2 (TB 1531-2). As Professor Garton explained in her oral evidence, these were accredited by APAC - as required by the accreditation standards - as an integrated course of study, involving clinical theory, research and placement subjects.

23.2 As is clear from the Course Handbook 2004 (TB467ff), the Doctorate of Psychology (Counselling Psychology) focused on counselling psychology. The theory, research and placement subjects each had that focus. This could not be otherwise, for the program of study offered by Swinburne to have been accredited by APAC as relevant to counselling psychology.

204 In essence the Board's position is that once a qualification has been approved, which embodies an approved program of study relevant to a particular endorsement, it is targeted and unique to that endorsement and was never intended or envisaged to be applied to another discrete area of endorsement, which will have its own discrete approved program of study.

205 The Board's Counsel clarified in his final address that the Board is not concerned with the competencies actually achieved by Dr Kolta but rather that anyone seeking general registration or endorsed registration, under the 'substantial equivalence' limb, can only do so by reference to another qualification which is objectively equivalent to an accredited qualification; that is, by only looking at the prescribed coursework and practice placements and not looking at the outcome of the actual selection of subjects, placements or research topics. The relevant question advanced by the Board is: 'has the applicant completed the right kind of qualification' not 'has the applicant achieved the right competencies'. Applying this kind of analysis, although Dr Kolta completed the requisite academic subjects or coursework by completing the combination of the Counselling Doctorate and the Graduate Diploma CP, the placement and research subjects completed by Dr Kolta during her Counselling Doctorate were accredited by APAC for Counselling not Clinical and can therefore never be substantially equivalent to a Clinical Doctorate.

206 In the Tribunal's view, there is nothing explicit or implicit, within the terms of the section, which warrants or requires such a restricted interpretation as advanced on behalf of the Board in [20]-[23] above.

207 Furthermore, for reasons further developed below, the Board's interpretation effectively flies in the face of the expert evidence and cannot be accepted as the intention of Parliament, consistent with the policy objectives of the regulatory scheme, extracted above.

208 The following submissions of the Board are predicated upon the primary contention that the Counselling Doctorate has been assessed and approved for one purpose only, which does not extend to eligibility for clinical endorsement:

24 The effect of Dr Kolta's position is to equate an entire sequence of counselling research and practical placement subjects to their counterpart clinical subjects, despite one having been accredited (and approved by the Board) under Part 6 for counselling area of practice and the other for clinical area of practice.

25 Dr Kolta's case is not that the qualifications she undertook - treated as programs of study offered by Swinburne - were substantially equivalent, or based on similar competencies to, the Doctorate of Psychology (Clinical Psychology), but that her individual learning outcomes from completing those qualifications were substantially equivalent to, or gave her similar competencies to, those she would have gained had she done the latter degree.

26 But that focus on learning outcomes, or individual competencies, undermines the purpose of the qualification requirement in s 98(1)(a), and the regulatory scheme in Part 6, to which it is closely related.

209 In the Tribunal's view, the interpretation advanced on behalf of the Board at [24]-[26] above misrepresents Dr Kolta's reliance upon her combined postgraduate qualifications. The Tribunal does not accept that Dr Kolta is seeking to rely upon an idiosyncratic and subjective experience. Rather, the expert evidence presented on behalf of Dr Kolta clearly exposes the fundamental flaws in the way in which the content of the Counselling Doctorate and the Clinical Doctorate have been presented by the Board. This aspect is explored further below.

210 The Board contends that whereas an 'approved qualification' is concerned with the characteristics of the qualification, an 'approved registration standard' for the purpose of s 98(1)(b) focuses on the individual's competencies:

27.1 Section 98(1)(b) requires compliance with 'an approved registration standard relevant to the endorsement'.

27.2 An 'approved registration standard' for endorsement is a registration standard: (i) developed by a National Board under s 38; and (ii) approved by the Ministerial Council under s 12(1)(b).

27.3 A registration standard cannot provide for a matter about which an accreditation standard may provide;12 in other words, they apply to mutually exclusive subject-matter.[174]

27.4 A registration standard may relate to the matters listed in s 38(1) and (2). Whereas accreditation standards under Part 6 focus on regulating programs of study applicable to all endorsement applicants, the matters to which s 38(1) and (2) are directed are more idiosyncratic to the individual applicant. In particular, the genus is stated in s 38(2)(c): 'any other issue relevant to the eligibility of individuals for registration in the profession or the suitability of individuals to competently and safely practise the profession'.

28 The approved registration standards require applicants to complete a registrar program, and the accompanying guidelines identify a range of detailed competencies that each individual registrar is expected to meet (see, eg, TB1073). Thus, to meet s 98(1)(b), the applicant must have developed specific individual competencies (or learning outcomes). By contrast, the applicant may satisfy s 98(1)(a) by completing an approved program of study, regardless of any learning outcomes achieved by completing it.

29 Thus, the purpose and effect of s 98(1)(a) and (b) together may be more fully stated as permitting a person to use the protected title if they: (a) hold the right kind of qualification; and (b) have met additional requirements directed to establishing their individual competencies to practice in the area.

30 It would distort the statutory scheme to construe s 98(1)(a)(ii) as permitting an individuated assessment of the kind Dr Kolta invites.

31 Further, it is simply contrary to the statutory scheme for the Tribunal to conclude that a large number of subjects accredited by APAC under Part 6 for counselling psychology meet the test in s 98(1)(a)(ii) for substantial equivalence to the analogous subjects accredited by APAC under Part 6 for clinical psychology. The views expressed by Professor Cook (in which he was apparently alone) to the effect that there is little difference between counselling and clinical psychology must be disregarded when applying a statutory scheme premised on distinct programs of study being accredited and approved for each area (by the Ministerial Council under s 15).

211 The Applicant's Counsel has undertaken a careful analysis of the principles of statutory interpretation and case law relevant to the correct interpretation of s 98(1) in the broader context of the National Law. These principles, which are uncontroversial, will guide the Tribunal as follows:

(a) The starting point is 'the ordinary and grammatical meaning of the words used, taking into account both context and legislative purpose.'[175] This point was further expanded by the High Court as follows:

Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. 'Mischief' is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.[176]

(b) However, context cannot displace the actual language used in the statute;[177]

(c) A court (or tribunal) construing the statutory provision must strive to give meaning to every word of the provision;[178] and

(d) As a general rule, delegated legislation made under an Act cannot be taken into account for the purposes of the interpretation of the Act itself.[179]

212 Importantly, these principles are also consistent with the interpretation principles set out in Schedule 7 of the National Law, which provides:

7 Interpretation best achieving Law's purpose

(1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation.

(2) Subclause (1) applies whether or not the purpose is expressly stated in this Law.

8 Use of extrinsic material in interpretation

(1) In this clause -

extrinsic material means relevant material not forming part of this Law, including, for example -

...

(e) an explanatory ... memorandum ...; and

(f) [a second reading speech];

...

ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in this Law and to the purpose of this Law.

(2) Subject to subclause (3), in the interpretation of a provision of this Law, consideration may be given to extrinsic material capable of assisting in the interpretation -

(a) if the provision is ambiguous or obscure - to provide an interpretation of it; or

(b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result; or

(c) in any other case - to confirm the interpretation conveyed by the ordinary meaning of the provision.

(3) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to -

(a) the desirability of a provision being interpreted as having its ordinary meaning; and

(b) the undesirability of prolonging proceedings without compensating advantage; and

(c) other relevant matters.

213 Applying the above principles of statutory interpretation to s 98(1)(a)(ii), it is appropriate to focus upon the words:

• 'practitioner';
• 'holds';
• 'another qualification';
• 'that in the [Tribunal's] opinion';
• 'is substantially equivalent to' or;
• 'based on similar competencies to'; and
• 'an approved qualification'.

214 Relevantly, the section does not otherwise prescribe or limit the way the Board or Tribunal is to reach its 'opinion' based upon an assessment of 'substantially equivalent' or 'similar competencies' to an 'approved qualification'.

215 Furthermore, as submitted by the Applicant's Counsel, Dr Kolta already holds an 'approved qualification' (albeit in Counselling Psychology) and has therefore been assessed as being eligible to hold that qualification and that the competencies she gained through the qualification have been assessed. For that reason alone, Counsel submits that the Board's position that the Tribunal must consider the issue in abstract, and disregard an individual practitioner's assessed competencies, is wrong. The Tribunal agrees, but also for the following further reasons:

(a) Sub-paragraphs (a)(i) and (a)(ii) of s 98(1) are intended to operate independently, that is, there is no reason for (a)(ii) to be subordinated to or conflated with (a)(i);

(b) Sub-paragraph (a)(i) effectively provides a streamlined pathway to eligibility, namely, an applicant qualifies as long as they can prove that they hold 'an approved qualification';

(c) The Applicant's Counsel correctly identifies that the focus of paragraph (a)(ii) is:

on whether the individual 'practitioner' that 'holds' 'another qualification' should be endorsed 'as being qualified to practice in an approved area of practice' - it is not focused on whether a particular qualification should be assessed as an approved qualification.[180]

(d) Paragraph (a)(ii) provides an exception to (a)(i) and therefore necessarily contemplates that a further assessment will have to be performed;

(e) The Board's submission to the effect that the regulatory scheme will be undermined and the 'floodgates' will be opened, appears to ignore the process clearly envisaged by paragraph (a)(ii), namely that the Board or Tribunal will properly consider the practitioner's assessed qualifications and competencies and the individual merits of each case. Professor Cook stated in evidence, Dr Kolta presents a unique and rare case.[181] The Tribunal agrees. In addition, the fact that her circumstances are unusual and likely to be very uncommon, does not mean that sub para 98(1)(a)(ii) does not apply to such circumstances. Indeed, it is precisely the circumstances which do not fall within sub para s 98(1)(a)(i) which are intended to fall for assessment under sub para 98(1)(a)(ii).

(f) The Board's position essentially amounts to:

(i) The Clinical Doctorate has been approved for one purpose only, namely to enable eligibility for endorsement as a clinical psychologist; and

(ii) The Counselling Doctorate has been approved for one purpose only, namely to enable eligibility for endorsement as a counselling psychologist;

accordingly, in the Board's view, it is not permissible to go behind either Doctorate for the purpose for proving eligibility for another area of endorsement.

(g) However, the fundamental flaws in the Board's position are that:

(i) As indicated above, there is no such necessary limitation embedded in the assessment to be conducted for the purpose of paragraph (a)(ii); and

(ii) In terms of the expert evidence before the Tribunal, it defies reality and does not advance the protection of the public or maintenance of professional standards.

216 The Tribunal also agrees with the Applicant's Counsel that:

(a) Dr Kolta's position is wholly consistent with the purpose of the National Law to protect the public[182] and the objectives and guiding principles of the National Law set out in ss 3 and 4 of the National Law, set out above; and

(b) By being allowed to consider the practitioner's assessed qualifications and competencies, the Board or Tribunal can make a proper assessment as to whether that individual practitioner ought be able to hold themselves out to the public as being qualified to practice in a particular area.

217 Counsel also refers the Tribunal to relevant examples which could come before the Board under paragraph (a)(ii) and the untenable consequences of applying the Board's position:[183]

22 ... consider a scenario where a psychologist gained their qualifications overseas and her qualifications were simply called Doctorate of Psychology and the course outlines were exactly the same but did not specify that the placement or thesis would be in a particular area of psychology. How in these circumstances would the Board or Tribunal be able to make a proper assessment only on the basis of course outlines about whether that psychologist should be endorsed in clinical psychology? As Professor Cook explained in his evidence, APAC does not prescribe the specific content of placements or research thesis topics when accrediting courses - these issues are left to the University to arrange and assess.[184] Without considering whether that psychologist has been assessed as completing a clinical placement supervised by a clinical psychologist or a thesis relevant to clinical psychology, the Board or Tribunal could not assess whether that psychologist's qualifications are substantially equivalent to, or based on similar competencies, to an approved qualification. The Board's own Guidelines appear to allow it to consider what an overseas applicant has in fact been assessed to have done when assessing substantial equivalence.[185]

23 Now, consider another scenario where a psychologist's qualification was gained overseas and was called a Doctorate of Clinical Psychology and the course outlines appeared on paper to be substantially equivalent, but in actual fact, that psychologist did not do any placements in clinical psychology supervised by clinical psychologists and their thesis was not relevant to clinical psychology as would have been expected in an APAC accredited course. If the Tribunal could only make an assessment of endorsement on course outlines, it would lead to the perverse result that the less qualified psychologist would have endorsement whereas Dr Kolta who is far more qualified than this overseas psychologist to practice in clinical psychology would be ineligible for endorsement.

218 In the Tribunal's view, the above examples posed by the Applicant's Counsel highlight that the Board's position is not consistent with the guiding principles of the National Law.[186] For the purpose of s 98(1)(a)(ii), it is not enough to consider the course outlines published for a particular qualification or course of study. The assessment necessarily must focus on the individual applicant. It is not simply a paper matching or checking exercise. The Board or Tribunal must be satisfied that the coursework, placements and research undertaken by the applicant are substantially equivalent (to an accredited qualification), having regard to the protection of the public and the maintenance of appropriate standards of skills and experience, for the purpose of such individual practicing in the relevant area of proposed endorsement.

219 The Tribunal notes that the interpretation of s 98(1)(a)(ii) advanced by the Board also appears to be inconsistent with its 1 December 2019 Guidelines on the Area of Practice Endorsements, which clearly contemplate individual assessment, as appropriate, for instance:[187]

Qualifications that may be considered equivalent for the purpose of applying for an endorsement include psychology qualifications gained overseas... that have been assessed by the Board... as substantially equivalent to a postgraduate qualification accredited as a sixth year of study or higher in the approved area of practise. To be eligible for endorsement, the qualification must be followed by a period of supervised practise in the approved area of practise assessed by the Board as equivalent to the applicable registrar program...

Where an applicant's overseas postgraduate qualification is deficient in the satisfactory completion of a practical component or a constituent element, the Board may consider a relevant membership of a recognised overseas professional body or additional credentials held by individuals to practise in the profession ... In assessing the quality of overseas memberships or credentials, the Board will seek evidence of independent quality review/accreditation process and/or independent peer recognition.

220 Finally, it is appropriate to consider the Pereira case, which each Counsel sought to rely upon for their respective positions.

221 His Honour Justice Kyrou was also considering s 98(1)(a)(ii) and acknowledged that the meaning of the undefined term 'qualification' is central to a determination of whether an applicant for endorsement holds a qualification that is 'substantially equivalent' to an approved qualification.[188]

222 His Honour recognised that the word 'qualification' is capable of at least three meanings:

30 ... The first meaning encompasses only a formal educational qualification. The second meaning encompasses a formal educational qualification or membership of a recognised professional body. The third meaning encompasses a formal educational qualification, membership of a recognised professional body or practical skill and experience which is unconnected to such a qualification or membership.[189]

223 After examining the context in which 'approved qualification' appears in sub-paragraph (a)(i) and 'qualification' appears in sub-paragraph (a)(ii), his Honour held that:

38 In my opinion, the context in which the word 'qualification' appears in s 98 of the National Law indicates that it is intended to be confined to competencies gained by a course of study or membership based on formal assessment by a recognised educational or professional body, rather than competencies gained merely from stand-alone practical experience. While the defined composite term 'approved qualification' is relevant to the meaning of 'qualification', it does not govern that meaning. The relevance of the composite term is that it indicates that a qualification must result from a process of formal assessment of competencies by a recognised educational or professional body where that assessment is based on objective standards. This focus on assessed competencies is necessary because s 98(1)(a)(ii) requires a comparison of competencies.[190]

39 It follows from the above that the word 'qualification' in s 98(1)(a)(ii) of the National Law is not confined to the first meaning but also encompasses the second meaning. The word, however, does not extend to the third meaning because a person's practical experience in and of itself does not equate to an objectively measurable or identifiable 'qualification'. Rather, it is one of the factors that may be taken into account, among other factors, in assessing whether the requirements for some qualification have been met. Until such an assessment is formally conducted and results in a formal educational qualification or membership of a recognised professional body, the practical experience cannot constitute a qualification.

224 In this case, in the Tribunal's view, there is no question that Dr Kolta is relying upon competencies gained by a course of study or membership based on formal assessment by a recognised educational or professional body. The only issue is whether, in the Tribunal's opinion, such competencies are substantially equivalent to, or based on similar competencies to, an approved qualification.

225 In the Tribunal's view, the Pereira case is clear authority that s 98(1)(a)(ii) requires a comparative analysis between an applicant's assessed competencies and competencies that would be formally assessed under an approved qualification.[191]

226 Accordingly, the Tribunal should consider the competencies that Dr Kolta has gained from her clinical placements and her doctoral thesis, in each case having been undertaken in the context of courses of study within a recognized educational body. The formal assessment performed by Swinburne, in the context of the Counselling Doctorate or the Graduate Diploma CP, is not the issue. Rather, Dr Kolta has been subject to a rigorous process of assessment in the context of postgraduate qualifications at a recognized tertiary institution. Dr Kolta is not relying upon the third meaning of qualification outlined in the Pereira case. She is not contending that the Tribunal should consider her skills, experience or competence that had not been assessed by a tertiary institution or professional body. The Tribunal concurs with the Applicant's Counsel's submission that the factual circumstances relied upon by the applicant in the Pereira case are distinguishable from the circumstances of Dr Kolta.

227 The expert evidence is critical to the Tribunal forming an opinion for the purpose of s 98(1)(a)(ii).

228 In the Tribunal's opinion, there is a significant disparity in the quality and relevance of the expert opinion evidence relied upon by each party. In particular, the Board has relied wholly upon expert opinion in terms of its interpretation of sub-paragraph (a)(ii). The Board has provided no expert opinion in answer to the circumstance of the Tribunal preferring the statutory interpretation relied upon by Dr Kolta.

229 There are further limitations apparent in the expert opinion given by Prof Garton.

230 Prof Garton acknowledged in her report, and confirmed under cross examination, that she does not have expertise in the decisions made by universities to grant exemptions for previous coursework completed and cannot reasonably comment upon any such decisions.[192] Prof Garton further states that to ensure that Dr Kolta's qualifications are substantially equivalent, or based on similar competencies to the Clinical Doctorate, she would need to 'enrol in an accredited qualification in Clinical Psychology, have any exemptions granted (coursework and perhaps even placement and research) and complete the program successfully and graduate with the qualification'.[193] Prof Garton rejected the relevance of the four subjects undertaken by Dr Kolta in her Graduate Diploma CP, which were the same subjects offered in the Clinical Doctorate, on the basis that they were taken in isolation and not part of the integrated doctoral program.

231 In the Tribunal's view, at this point, Prof Garton's evidence revealed inconsistencies and the limited relevance of her evidence. Prof Garton accepted that:

(a) If a university granted Dr Kolta exemptions on the basis of her coursework, research and supervised placements that she did in her Counselling Doctorate and successfully graduated from a Clinical Doctorate, she would have considered Dr Kolta to have completed an accredited qualification;[194] and

(b) She would not take issue if Dr Allen, a person who has experience working at universities and granting exemptions, had made a decision to allow Dr Kolta to transfer to Clinical Psychology, gain exemptions for her coursework, research and placements and did the final coursework subjects for Clinical Psychology.[195]

232 When asked specifically if such a decision would mean that what Dr Kolta has done is substantially equivalent, she again conceded that she could not answer that and it would not be her 'place to say whether it's equivalent or not' because she has not worked at a university granting exemptions and could not provide an expert opinion on it.[196]

233 Prof Garton further stated that if Dr Kolta's qualifications were 'substantially equivalent' then she would still have to complete a registrar program, which under the 2019 Registration Standard would require at least 3,000 hours of supervised practice with a Board approved supervisor.[197]

234 However, Prof Garton conceded that the Standard also indicated circumstances where some individuals may be eligible for a reduction in the number of hours of supervised practice. The 2019 Guidelines on Area of Practice Endorsements provides:[198]

To be eligible to apply for endorsement in one of the approved areas of practice a psychologist must have:

...

(d) completed an approved postgraduate qualification accredited as a fifth to seventh year of study or higher in one of the approved areas of practise, and a minimum of 1,500 hours of approved supervised practise with a Board-approved supervisor in the registrar program ...

235 Regarding the practice which Dr Kolta undertook in her employment, as identified in her curriculum vitae, Prof Garton reported that:[199]

The Curriculum Vitae supplied by Dr Kolta indicates that she has mainly worked in an education setting and the duties listed could be performed, for example, by an Educational and Developmental Psychologist. It is unclear what duties she actually performed at the hospital despite the comments from the supervisors as she worked both as a research assistant as well as a psychologist. She was only supervised for the placement at RCH as far as I can tell from the documents not the other work as, she claims, a research assistant and psychologist. ...

...

Dr Kolta has been working as a psychologist with general registration on the basis of her completion of an accredited professional doctorate qualification. She has not been supervised by a psychologist (and there have even been periods when she has been registered as non-practising) so does not meet the requirements of supervised practice under any of the Registration Standards.

While at Royal Children's Hospital (RCH) on placement, she was supervised by a clinical psychologist who has been supervising her for CPD (Continuing Professional Development) since 2019; this is not clinical practice. The dates at RCH provided by Dr Kolta in her Curriculum Vitae do not match those in the letters of support.

236 Prof Garton acknowledged that Dr Kolta's Supplementary witness statement provided details about the duties which she performed in educational settings and why the work was clinical in nature.[200] However, Prof Garton said that this was not supervised practice and rejected that this also amounted to clinical psychology practice. Prof Garton went so far as to suggest that this was not work which Dr Kolta should have been doing in schools and could be unethical:

The whole point of working in schools is in fact to optimise the educational outcome for children, not to optimise the mental health outcomes.[201]

237 Prof Garton was also taken to Dr Barrett's letter which describes the nature of supervision which she has undertaken in a school context:[202]

Marian's psychological practice within the school settings has been predominantly clinical in nature. Mental health problems affect a significant proportion of school-aged Australian children and young people. Psychologists in schools play a major role in supporting young people with emotional and behavioural problems, and are often the first to identify and treat mental health concerns. Marian's psychological practice has predominantly focussed on prevention, assessment and treatment of mental health problems. It requires, for example, a strong understanding of mental health and psychopathology and application of this understanding for the purposes of assessment, psychoeducation and evidence-based intervention. It is important to note that AHPRA has approved psychological practice within school settings for the clinical registrar programs of other psychologists.

As a psychologist in a school, Marian engages in a range of activities relevant to the competencies required for clinical endorsement. For example, providing assessment, diagnosis and a range of evidence-based interventions to students, working with students and families from diverse groups, consultation and collaboration with school staff and external professionals (eg., psychiatrists) and agencies (eg., CAMHS outpatient and inpatient units) and management of critical incidents (eg., self-harm and suicide risk). In our supervision sessions, Marian has discussed her work with students presenting with a range of mental health problems. This has included students with complex and severe mental health disorders, including with comorbid conditions. Some of the presentations we have discussed include:

• Depressive disorders and anxiety disorders
• Post-traumatic stress disorder, trauma (e.g., sexual assault, victim/witness of domestic violence), grief and adjustment disorders
• Body dysmorphia and eating disorders (eg., anorexia nervosa and bulimia)
• Emerging borderline personality disorder
• Gender identity and gender dysphoria
• Substance abuse
• Autism Spectrum Disorders
• Self-harm and suicidality associated with mental health disorders listed above
• School refusal/school avoidance often an outcome of untreated primary mental health conditions

My supervision of Marian has not involved any direct observation of her work nor formal evaluation of the competencies required for clinical psychology endorsement. However, I am an experienced board-approved supervisor for the clinical registrar program so I am very familiar with the competencies involved. In my opinion based on our discussions within supervision, Marian has developed all of the competencies for endorsement as a clinical psychologist. I have no hesitation in vouching for her competencies in the area of clinical psychology and in recommending that she be considered eligible for endorsement as a clinical psychologist.

238 Prof Garton did not accept the opinions expressed by Dr Barrett, variously on the basis that the supervision was not sufficiently direct and only some of the work related to the practice of clinical psychology.

239 In the Tribunal's view, Dr Barrett provides unequivocal and compelling evidence of both the clinical nature of the psychological practice performed by Dr Kolta, under her supervision, and the relevance of the competencies which she demonstrated for endorsement in clinical psychology.

(a) Dr Kolta undertook supervised practice albeit not in a formal registrar program;

(b) She was asked to consider the substantial equivalence of Dr Kolta's qualifications, based on her curriculum vitae, to the registrar program, but did not take into account any supervised practice, which she considered irrelevant, as it was not formal supervised practice; and

(c) She never assessed whether Dr Kolta's post qualification supervised practice was substantially equivalent to a registrar program 'as that was not what I was asked to do'.

241 Prof Garton also conceded in cross-examination that:

(a) She 'absolutely could not' give any opinion about whether Dr Kolta's post-qualifications practice was 'substantially equivalent' to supervised practice under the Registration Standard because 'that's a Psychology Board of Australia matter, not an accreditation matter.'[204]

(b) She had never worked as a 'supervisor' for a registrar program for clinical psychology and it was 'not her place' to assess substantial equivalence and it was 'not what [she] was asked to do'.[205]

242 In the Tribunal's view, the above concessions are difficult to reconcile with Prof Garton's purported expert opinion given in her report.[206]

243 Furthermore, the Tribunal concurs with the submissions of the Applicant's Counsel to the effect that Prof Garton:

(a) Gave opinions on topics outside the scope of her expertise, which she then either conceded were incorrect or incomplete,[207]

(b) Admitted that she did not have the relevant expertise;[208] or

(c) Refused to make concessions which were plainly warranted. For example:

(i) When Prof Garton refused to concede the clinical nature of the work that Dr Kolta was performing at schools and gave the unsubstantiated opinion that she should not be doing such work because it 'could be' unethical;[209] or

(ii) When she refused to concede that Dr Kolta's thesis was relevant to the work of a clinical psychologist or would have satisfied the requirements of a Clinical Doctorate because 'there's no such thing as a thesis in clinical psychology';[210] or

(iii) When she gave the opinion that the work that Dr Kolta did at the RCH, as a research assistant conducting assessments of mental health disorders, was not of the nature of 'clinical practice';[211] or

(iv) When she refused to concede that Dr Kolta's work at the RCH, while she was completing her Graduate Diploma CP, would have provided her with opportunities to put into practice the theory that she was learning in those coursework subjects because they are not 'integrated'.[212]

244 The Tribunal also agrees that Prof Garton's propensity to give evidence beyond her areas of expertise undermined her credibility and impartiality, particularly as she otherwise readily acknowledged that she:[213]

(a) Is not a practicing clinical psychologist or counselling psychologist or educational and development psychologist;

(b) Does not have endorsements in any of those or other areas;

(c) Has not worked as a Board approved supervisor for placements or the registrar program in clinical psychology; and

(d) Has not worked at a university in a position where she had to make decisions about exemptions, or transfers or approving placements, including their sequencing, or approving or marking theses.

245 The only relevant expertise that Prof Garton had and could comment on was that the Counselling Doctorate and Graduate Diploma CP were not individually accredited courses for Clinical Psychology, which were not matters contested by Dr Kolta.

246 Neither Prof Garton nor any other expert on behalf of the Board examined whether the two separate qualifications, when assessed together, could have been substantially equivalent. Prof Garton 'fundamentally disagreed' with the concept that one could assess them together as they are 'two different programs' and that would 'undermine the accreditation process.'[214]

247 Prof Garton confirmed that she would not change anything in her expert report dated 12 February 2021 after having read reports subsequently filed by Prof Cook (9 May 2021), Dr Kolta's Supplementary witness statement (6 April 2021), Dr Barrett's letter (24 March 2021), and Dr Allen's reports (10 March and 6 April 2021).

248 In the Tribunal's view, Prof Garton's evidence provides no assistance to the Tribunal on the issue of substantial equivalence of Dr Kolta's qualifications or supervised practice.

249 In contrast to the expert evidence relied upon by the Board, Dr Allen and Prof Cook are eminently qualified to give the opinions that they gave. Both have had extensive academic careers at universities and assessed the equivalence of qualifications of applicants for entry into postgraduate courses, including for the purposes of granting exemptions. In addition:

(a) Prof Cook is a practising psychologist with endorsements in both counselling and clinical psychology; a registered Board approved supervisor of psychologists seeking AOPE for clinical and counselling psychology in the registrar program; was a director of APAC for two years and is the current Deputy Chair; and

(b) Dr Allen is also endorsed in Health Psychology and acts as a registered supervising psychologist with APRHA.

250 Prof Cook's oral evidence effectively undermined the Board's approach to assessing substantial equivalence based on course guidelines alone. APAC does not accredit topics of research thesis, nor placements - those are left to the university's discretion - and the labels used in the course guidelines are 'just labels' which do not reflect the fact that the nature of placements or topics for thesis are not as easily or reasonably able to be distinguished in the way some of the labels seem to imply.[215]

251 Theses, including Dr Kolta's thesis, can and do have relevance to several areas of practice.[216] Similarly for placements, particularly at the early stages of a postgraduate program, it is very difficult to distinguish between a counselling psychology student and a clinical psychology student because the fundamentals of establishing a therapeutic working alliance are the same.[217]

252 Further, APAC accreditation did not preclude universities from allowing students to complete the course in an order different to what was prescribed or to transfer into another course or to gain exemptions for particular subjects and those decisions were left to the university.[218] Therefore, it is artificial and impossible to properly assess substantial equivalence without taking into account what a particular student has done or whether that student has or would have gained a transfer or exemptions from a university because of that student's assessed competencies.

(a) There is 'substantial overlap between counselling and clinical psychology';[219] and

(b) Dr Kolta's qualifications are substantially equivalent, based on the fact that she has presented a 'unique case' where she 'successfully completed all of the academic work' for at least a Masters of Clinical Psychology, and 'successfully completed placement work' and a thesis which is 'appropriate to clinical psychology'; and she presents no danger to the community if she were to practice as a clinical psychologist.[220]

254 Dr Allen effectively challenged Prof Garton's evidence to the effect that the supervised placements were not supported by the knowledge units as the placements occurred before Dr Kolta completed the four remaining courses of the Graduate Diploma CP. In Dr Allen's experience, such sequencing was not unusual.[221] It is not always the case that students can complete coursework prior to placements because placement opportunities are 'so rare'. Accordingly, universities have the discretion to allow students to complete placements prior to completing coursework and such difference in sequencing does not preclude someone from graduating.[222]

255 Dr Allen is experienced granting exemptions to students for subjects completed, for example at another institution. When making assessments for that purpose, Dr Allen would consider what competencies the student had acquired from completing the subject, after conducting an extensive interview and examining a detailed course description of what had actually been done. Dr Allen also explained that the process by which substantial equivalence is assessed at universities, when granting exemptions, is the same process that Dr Kolta would have undergone when she was granted exemptions for her coursework, placements and research. This process involves considering the competencies that the applicant had acquired through their previous course of study.[223]

256 Dr Allen was presented with the following hypothetical question: If Dr Kolta had approached her to approve exemptions to transfer to a Clinical Doctorate from a Counselling Doctorate, on the basis of Dr Kolta's coursework, placements, and doctoral thesis of her Counselling Doctorate, but subject to completing the remaining four coursework subjects, Dr Allen answered: 'I don't understand why there would be a problem' [with allowing such a transfer].[224] Dr Allen's evidence is consistent with Dr Kolta's qualifications or competencies as gained and assessed being substantially equivalent, or based on similar competencies to, a Clinical Doctorate.[225]

257 Under questioning from the Tribunal, Dr Allen confirmed her opinion that Dr Kolta had gained the competencies of a clinical psychologist and that there were no public health concerns. Dr Allen referred to:

(a) Dr Kolta's ability to manage the challenging nature of the placements, which dealt with severe, rare and complex mental health disorders, to the satisfaction of her supervisors; and

(b) The scale of her thesis, which lent her a 'great deal of knowledge' said to be essential for psychology, including clinical assessments.[226]

258 Under cross examination Dr Allen made clear that she took into account Dr Kolta's competencies, not just course outlines, when making her assessment of substantial equivalence.[227]

259 Although Dr Barrett did not provide an expert evidence report, the Tribunal is satisfied that she clearly had expertise as a practicing clinical psychologist and as someone who had supervised approximately 25-30 clinical psychologists for the registrar program and formally assessed them for their competencies.[228]

260 Based on this expertise, Dr Barrett gave evidence that she felt 'very confident' that Dr Kolta had developed all the competencies for endorsement in clinical psychology and that it was not necessary she complete a registrar program.[229]

261 Dr Barrett's view was formed on the basis of the 24 hours of sessions with Dr Kolta as well as her direct observation of her work when supervising her placement in 2006/2007 (which Dr Barrett said she 'passed with flying colours' despite being a hard placement that required a lot of independent work).

262 Dr Barrett otherwise confirmed that she did not formally assess Dr Kolta under the registrar guidelines (since Dr Kolta is not currently eligible for such a registrar program).[230]

263 In his final address at the Hearing, the Board's Counsel advised that:

If VCAT finds, contrary to the Board's submissions, that the Swinburne Counselling Doctorate plus the Swinburne Graduate Diploma CP as in fact completed by Dr Kolta in all her circumstances in late 2010 constitute a qualification that is substantially equivalent to or based on equivalent competencies to a Swinburne Clinical Doctorate offered at the same time, the Board would not oppose the Tribunal reducing to zero the registrar program requirement under the 2019 Registration Standards having regard to the Transitional Policy published by the Board.

264 The Tribunal has examined all exhibits and considered the oral evidence and helpful submissions of Counsel.

(a) finds Dr Kolta to be a credible witness who presented comprehensive and relevant evidence;

(b) accepts Dr Kolta's account of the circumstances in which she made her initial application to the Board in 2010 and that she reasonably, and in good faith, relied upon advice that the coursework undertaken in the Graduate Diploma CP would by accepted as substantially equivalent to corresponding coursework in an approved qualification, for the purpose of qualifying for endorsed registration in clinical psychology;

(c) finds that exceptional circumstances prevented Dr Kolta from following up the Board's response dated 3 December 2010, to Dr Kolta's initial application, assuming such letter was sent;

(d) finds that by its 3 December 2010 response, the Board failed to comply with ss 101 and 102 of the National Law and together with the consequent deemed refusal under s 106 of the National Law, the Board prejudiced Dr Kolta's capacity to comply with the Board's Transitional arrangements and satisfy eligibility for endorsed registration as a clinical psychologist.

(a) endorses the interpretation of s 98(1)(a) of the National Law, advanced on behalf of Dr Kolta; and

(b) accepts the expert opinions given on behalf of Dr Kolta.

(a) Under s 98(1)(a)(ii) of the National Law, in the opinion of the Tribunal, Dr Kolta holds qualifications, comprising a Counselling Doctorate and a Graduate Diploma CP, both completed at Swinburne, which together are substantially equivalent to, or based on similar competencies to an approved qualification, namely a Clinical Doctorate offered at the Swinburne University at the same time; and

(b) Having found, under s 98(1)(a)(ii), that Dr Kolta holds qualifications relevant to clinical endorsement, and noting that such qualifications were held at the time of the original application made by Dr Kolta in November 2010, for the purpose of s 98(1)(b), the Tribunal assesses Dr Kolta's application by reference to the Transitional arrangements which applied from 30 June 2010; and

(c) Under s 98(1)(b) of the National Law, the Tribunal finds that Dr Kolta complies with an approved registration standard relevant to endorsement in clinical psychology by reference to the Transitional arrangements which applied at the time when Dr Kolta made her application in November 2010, including the 2010 Registration Standard and 2010 Guidelines; and accordingly Dr Kolta is exempt from any further registrar program.

(a) The Tribunal will extend the time for compliance with the Transitional arrangements to the date when Dr Kolta re lodged her application in 2019; and

(b) Having found Dr Kolta's qualifications to be substantially equivalent, in accordance with s 98(1)(a)(ii), the Tribunal will direct that any further requirement to comply with the 2019 Registration Standard is reduced to zero.

269 In accordance with the above findings, the Tribunal will:

(a) set aside the decision of the Board refusing Dr Kolta's application for endorsement as a clinical psychologist; and

(b) approve the registration of Dr Kolta to be endorsed as being qualified to practise in the area of clinical psychology.

[1] National Law, s 31; Health Practitioner Regulation National Law Regulation 2018 (Vic), s 4.

[2] By its delegate, the New South Wales Board of the Psychology Board of Australia.

[5] Sections 3 and 51(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act); Pereira v Psychology Board of Australia [2014] VSC 417 [13] (Pereira case).

[6] Chopra v Department of Education and Training [2019] VSC 488, [63] (Richards J).

[8] Refer Applicant's Closing Submissions [4]-[8]; and Respondent's Outline of Supplementary Submissions [2], [6]-[7].

[9] Doctor of Psychology (Counselling Psychology) and Graduate Diploma of Science (Clinical Psychology).

[10] Dr Kolta Witness Statement dated 23 October 2020 (Dr Kolta Statement); and Dr Kolta Supplementary Witness Statement dated 6 April 2021 (Dr Kolta Supplementary Statement).

[11] Report of Prof Cook dated 9 May 2021 (Prof Cook Report 2021), Tribunal Book filed 2 November 2021 (TB) Tab 28, TB 2006-2010; Curriculum vitae of Prof Cook as at May 2021, Tab 29, TB 2014.

[12] Report of Dr Felicity Allen dated 21 October 2020 (Dr Allen Report) and Curriculum vitae of Dr Allen, Tab 21, TB 1802, 1810-1817; Expert Report of Dr Allen dated 30 April 2021 (Dr Allen Further Supplementary Report), Tab 26, TB 1992.

[13] Letter of Dr Suzanne Barrett dated 24 March 2021, TB 1865-1866.

[14] Witness statement of Professor Alison Garton dated 12 February 2021, TB 1142-1148.

[15] Prof Garton's 'Expertise', TB 1142.

[16] Respondent's Outline of Supplementary Submissions [32].

[17] The term 'health profession' is defined in s 5, and lists the 16 distinct health professions including '(n) psychology'.

[18] This provision of the National Law has not changed since its introduction in 2010. Clinical psychology and counselling psychology each qualify as such specialist areas for psychologists.

[23] National Law, s 101(2). The Board contends that this occurred in the present case, by letter to Dr Kolta dated 7 February 2020, communicating a proposal decided by the Board on 4 February 2020. However, Dr Kolta contends that the Board did not comply with s 101(1) when she first applied for endorsement in 2010. The consequence of such non-compliance will be addressed below.

[27] National Law, s 5: 'external accreditation entity means an entity, other than a committee established by a National Board, that exercises an accreditation function.'

[28] National Law, s 5: 'accreditation committee means a committee established by a National Board to exercise an accreditation function for a health profession for which the Board is established.'

[29] National Law, s 46(2) provides that: 'In developing an accreditation standard for a health profession, an accreditation authority must undertake wide-ranging consultation about the content of the standard.'

[35] Respondent's Outline of Submissions [39].

[36] Area of Practice Endorsement Registration Standard with effect from 1 July 2010 (2010 Registration Standard), Tab 14(a) Tribunal Book filed 23 August 2021 (TB) 883. While a revised area of practice endorsements registration standard was published on 9 March 2011 (and was in effect until 30 November 2019) (2011 Registration Standard), the requirements remained the same (the only difference was the addition of other approved areas of practice): see Tab 14(g), TB 986. A further revised registration standard effective 1 December 2019 is in different terms, but ultimately has a similar effect: see Registration Standard: Area of practice endorsements dated 1 December 2019 (2019 Registration Standard), Tab 14(j), TB 1062.

[37] 2010 Guidelines, Tab 14(b), TB 885-901. A revised Guidelines on Area of Practice Endorsements was published and in effect from 29 July 2011 until 30 November 2019 (2011 Guidelines), Tab 14(h), 988-1016, and a further revised Guidelines on Area of Practice Endorsements was published and in effect from 1 December 2019 until currently (2019 Guidelines), Tab 14(k), TB 1065-1096.

[38] 2010 Guidelines, 2.2 Equivalence Guidelines, TB 888. The 2011 Guidelines and the 2019 Guidelines on equivalence essentially remained the same: see Tab 14(h), TB 993 and Tab 14(k), TB 1070.

[39] 2010 Guidelines, Tab 14(b), TB 888-892; 2011 Guidelines, Tab 14(h), TB 993-997; and 2019 Guidelines, Tab 14(k), TB 1071-1073.

[40] See APAC Accreditation Standards July 2010, Tab 14(d) 5.3.18, 5.4.4, TB 965, 968; 2010 Guidelines, Tab 14(b), TB 889; 2011 Guidelines, Tab 14(h), TB 992, 994; and 2019 Guidelines, Tab 14(k), TB 1072; See also Prof Cook Report 2021, Tab 28, TB 2011.

[41] 2011 Guidelines, Tab 14(h), TB 992.

[42] 2010 Guidelines, Core competencies, Tab 14(b), TB 890-891; 2011 Guidelines, Competencies required for clinical psychology endorsement, Tab 14(h), TB 1002-1004; 2019 Guidelines, Competencies required for clinical psychology endorsement, Tab 14(k), TB 1073, 1078-1079.

[43] 2010 Guidelines, Attachment C Transition and Grandparenting Guidelines for Endorsed Areas of Practice, Tab 14(b), TB 898.

[45] Ibid, TB 898-901; Fact Sheet: Transition and grandparenting arrangements for area of practice endorsements, Tab 14(f), TB 979-984 and Pereira case [22].

[46] The source of this transitional pathway is s 277(1)(a) of the National Law.

[47] The source of the statutory power for this transitional pathway is said to be s 98(1)(a) and s 35(1)(c) and (q) of the National Law: Pereira case [2014] VSC 417 [22], [27]-[42].

[48] That is, not an 'approved qualification' as defined or supervised practise approved by the Board as part of an approved registrar program.

[49] The source of the statutory power for this pathway is s 98(1)(a)(i) and 98(1)(a)(ii) respectively.

[50] Transitional arrangements for higher degree students and graduates seeking area of practice endorsement, 20 December 2010, Tab 14(e), TB 976.

[51] See Dr Kolta Supplementary Statement [32], Tab 22, TB 1834 and Tab 22(f), TB 1859.

[52] Transitional arrangements for higher degree students and graduates seeking area of practice endorsement, 20 December 2010, Tab 14(e), TB 976, emphasis added.

[53] Dr Kolta Statement [32], Tab 17, TB 1152.

[54] Dr Kolta Statement [33], Tab 17, TB 1152. This is further supported by various representatives from APHRA - see Dr Kolta Statement [40]-[42], [58]-[59], Tab 17, TB 1153, 1156; Email from Karen Schleter to Dr Kolta dated 30 October 2019, Tab 17(j), TB 1760; Application for endorsement, Tab 1, TB 9; See also Letter from Minter Ellison to Professor Alison Garton dated 25 January 2021 [2.15], Tab 15, TB 1130.

[55] Dr Kolta Statement [38], Tab 17, TB 1152.

[56] Dr Kolta Statement [34], Tab 17, TB 1152.

[57] Dr Kolta Statement [41]-[43], [47], Tab 17, TB 1153-1154.

[58] Dr Kolta Statement [52], [58], Tab 17, TB 1155-1156; Email from Karen Schleter to Dr Kolta dated 30 October 2019, Tab 17(j), TB 1748; see also Comptroller-General of Customs v Kawasaki Motors Pty Ltd [1991] FCA 519; (1991) 103 ALR 661, 671 (Hill and Heerey JJ).

[59] Applicant's Counsel also referred the Tribunal to Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117 in which it was held that there is no blanket principle that functus officio applies in relation to administrative decisions, rather it is a question of statutory power as to whether the decision-maker has the power under the statute to reconsider a decision in the particular circumstances: at 119 [8] (per Gleeson CJ); see also: Jayasinghe v Minister for Immigration & Ethnic Affairs [1997] FCA 551; (1997) 145 ALR 532, 542; Sloane v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 414; (1992) 37 FCR 429, 443 (French J) and Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] FCA 789; (2000) 99 FCR 251, 15 (Beaumont and Carr JJ).

[61] At the relevant time of completing her Counselling Doctorate and undertaking the Graduate Diploma CP.

[62] Letter from APHRA to Dr Kolta dated 7 February 2020, Tab 6, TB 844-847.

[63] Letter from Dr Kolta to APHRA dated 28 February 2020, Tab 7, TB 848-852.

[64] Letter from APHRA to Dr Kolta dated 17 April 2020, Tab 10, TB 863-866.

[65] Transcript recording 3 December 2021 (Cross-examination of Prof Garton).

[66] Letter from Minter Ellison to Evelyn Tadros dated 15 January 2021, Tab 22(a), TB 1850-1851; Pathways to Area of Practice Endorsement, Tab 22(b), TB 1852; See also Prof Garton Report, Tab 16 [4.2(d)], TB 1146.

[67] By further letter dated 15 January 2021, the Board's solicitors advised: 'The Board may be prepared to waive this requirement', TB 1853.

[68] Applicant's Outline of Submissions [101]-[103], TB 2064.

[69] Letter from Minter Ellison to Evelyn Tadros dated 15 January 2021, Tab 22(a), TB 1850-1851; University of Queensland, Graduate Diploma in Psychological Practice, Tab 22(d), TB 1854-1855.

[70] Dr Allen Report dated 30 April 2021 [5], Tab 26, TB 1993; Prof Cook Report 2021, pg 4, Tab 28, TB 2009; Dr Kolta Supplementary Statement [26], Tab 22, TB 1833.

[71] Transitional arrangements for higher degree students and graduates seeking area of practice endorsement, 20 December 2010, Tab 14(e), TB 976.

[72] Applicant's Outline of Submissions Section 5: Dr Kolta's Qualifications, TB 2055-2063.

[73] Dr Kolta Statement [2], Tab 17, TB 1149.

[74] Dr Kolta Statement [3]-[4], Tab 17, TB 1149; List of APAC accredited qualifications as in 2010, Tab 14(c), TB 904; Results Certificate for Doctor of Psychology (Counselling Psychology), Tab 1(c), TB 26; Letter from Pamela Green to Dr Kolta dated 24 June 2009, Tab 3(e), TB 607-608.

[75] Dr Kolta Statement [7], Tab 17, TB 1149.

[76] Dr Kolta Supplementary Statement [48], Tab 22, TB 1837.

[77] Dr Kolta Statement [7], [9], Tab 17, TB 1149-1150; List of APAC accredited qualifications as in 2010, Tab 14(c), TB 904.

[78] Information relating to Graduate Diploma of Science (Clinical Psychology) on the Swinburne website obtained via Wayback Machine last updated 1 August 2008 (Graduate Diploma (Clinical Psychology) course description), Tab 23(e), TB 1961.

[79] Dr Kolta Statement [8], [9], [14], Tab 17, TB 1149-1150. Graduate Diploma of Science (Clinical Psychology) results, Tab 17(e), TB 1721; Prof Cook's statutory declaration dated 20 October 2020, Tab 19, TB 1775-1777 and Prof Cook's letter of support dated 18 October 2020, Tab 17(g), TB 1724 (together Prof Cook support documents 2020).

[80] Dr Roger Cook support letter 2020, Tab 19, TB 1774-1777.

[81] Information relating to Professional Doctorate of Psychology (Counselling Psychology) on the Swinburne website obtained via Wayback Machine last updated 31 May 2005 (Doctorate of Counselling Psychology course description), Tab 23(c), TB 1885-1892, 1991-1992 and Information relating to Professional Doctorate of Psychology (Clinical Psychology) on the Swinburne website obtained via Wayback Machine last updated 31 May 2005 (Doctorate of Clinical Psychology course description), Tab 23(d), TB 1917-1923, 1953-1954; See also Comparative table of Counselling v Clinical Psychology DPsych/Masters/Grad Dip (Comparative table), Tab 17(b), 1157-1161; Prof Cook support letter 2020, Tab 19, TB 1774-1777.

[82] Save that the course codes were the same codes as the subjects studied in the Masters of Clinical Psychology, instead of the Doctorate of Clinical Psychology and some course names had been updated from 2005 to 2008 (ie Psychological Assessment became Advanced Psychological Assessment and Psychology of the Family became Systemic Family Counselling).

[83] Graduate Diploma (Clinical Psychology) course description, Tab 23(e), TB 1961-1980 compared with Doctorate of Clinical Psychology course description, Tab 23(d), TB 1917-1923, 1929-1930, 1933-1934, 1937-1938 1944-1945, 1951-1954; See also Comparative table, Tab 17(b), 1157-1161; Prof Cook support letter 2020, Tab 19, TB 1774-1777.

[84] Dr Kolta Statement [13], Tab 17, TB 1150; Letter from Lilla Amon to Dr Kolta dated 2 September 2009, Tab 3(f), TB 609; Prof Cook support letter 2020, Tab 19, TB 1774-1777; Prof Cook Report 2021, Tab 28, TB 2010-2011.

[85] Dr Allen Report, Tab 21, TB 1805-1806; Prof Cook Report 2021, Tab 28, TB 2010-2011; Expert Report of Dr Allen dated 10 March 2021 (Dr Allen Supplementary Report), Tab 24, [5], 1983-1984.

[86] Prof Cook Report 2021, Tab 28, 1-8, TB 2006-2013; Prof Cook support documents 2020, Tab 19, TB 1775-1777.

[87] Prof Cook Report 2021, Tab 28, pgs 1-2, 7-8, TB 2006-2007, 2012-2013.

[88] Prof Cook support letter 2020, Tab 19, TB 1774-1777; Prof Cook Report 2021, Tab 28, TB 2010-2011.

[89] Dr Allen Report, Tab 21, TB 1802-1807; Dr Allen Supplementary Report, Tab 24, [4]-[6], TB 1983-1984; Dr Allen Further Supplementary Report, Tab 26, [(h)], [3]-[8], TB 1990, 1992-1996.

[90] Dr Allen Report dated 21 October 2020, Tab 21, [5]-[13], [17], TB 1802-1817; Dr Allen Supplementary Report, Tab 24, [4]-[5], [9]-[10], TB 1983-1985; Dr Allen Further Supplementary Report, Tab 26, [3], [5], [6]-[7].

[91] Expert Report of Prof Garton dated 12 February 2021 (Prof Garton Report), Tab 16, [4.2(b)], 4.2(d)(i), TB 1145, 1148.

[92] Dr Kolta Statement [15], Tab 17, TB 1150.

[93] Dr Kolta Supplementary Statement [12], [13], TB 1831.

[94] Placement record for Swinburne Psychology Centre dated 23 November 2006, Tab 1(h), TB 32 to 53; Table 1 Practise placements within higher degrees, Tab 3(d), TB 600-601.

[95] Doctorate of Counselling Psychology course information, Tab 23(c), TB 1897-1898 and Doctorate of Clinical Psychology course information, Tab 23(d), TB 1927-1928; Minimum Placement Requirements Counselling Psychology for Masters and Doctorate students, Tab 3(j), TB 654.

[96] Dr Kolta Supplementary Statement [12], [14], Tab 22, TB 1831-1832; Letter of Support from Dr Barrett dated 22 September 2010, Tab 1(i), TB 54; Letter of Support from Dr Barrett dated 16 July 2020, Tab 17(f), TB 1723.

[97] Ibid; see also Swinburne Placement Activities Logbook at RCH, Tab 1(j), TB 55-71; Practise placements within higher degrees, Tab 3(d), TB 602.

[98] Doctorate of Counselling Psychology course description, Tab 23(c), TB 1905-1906 and Doctorate of Clinical Psychology course description, Tab 23(d), TB 1946-1947; Minimum Placement Requirements Counselling Psychology for Masters and Doctorate students, Tab 3(j), TB 654.

[99] Supervised Placement Agreement between Swinburne and Veteran's Psychiatry Unit dated 3 September 2007, Tab 1(k), TB 72-75.

[100] Dr Kolta Supplementary Statement [15]-[16], Tab 22, TB 1832.

[101] Dr Kolta Supplementary Statement [12], [15]-[16], Tab 22, TB 1832; Swinburne Placement Activities Logbook Austin Hospital Tab 1(l), TB 91.

[102] Doctorate of Counselling Psychology course description, Tab 23(c), TB 1905-1906 and Doctorate of Clinical Psychology course description, Tab 23(d), TB 1946-1947; Minimum Placement Requirements Counselling Psychology for Masters and Doctorate students, Tab 3(j), TB 654.

[103] Letter of Support from Dr Barrett dated 16 July 2020, Tab 17(f), TB 1723.

[104] Prof Cook support letter 2020, Tab 19, TB 1774-1777; Prof Cook Report 2021, Tab 28, TB 2011-2012.

[105] Dr Allen Report, Tab 21 [14], [17], [21], TB 1806-1809; Dr Allen Further Supplementary Report, Tab 26, [7], TB 1993-1994.

[106] Prof Garton Report, Tab 16, [4.1(a)(i)], [4.2(b)], TB 1144-1146.

[107] Prof Garton Report, Tab 16 [4.1], [4.2(b)], TB 1144-1146.

[108] Prof Garton Report, Tab 16 [4.2(b)], TB 1145; Prof Cook Report 2021, Tab 28, TB 2012-2013.

[109] Dr Allen Supplementary Report, Tab 24, [3]; Dr Allen Further Supplementary Report, Tab 26, [7].

[110] Prof Garton Report, Tab 16 [4.2(b)]-[4.2(d)], [4.2(g)], TB 1145-1147.

[111] Dr Allen Supplementary Report, Tab 24, [6], TB 1984; Dr Allen Further Supplementary Report, Tab 26, [4], [7], TB 1993.

[112] RCH: Dr Barrett's original supervision report (Supplementary Document), and testimony. VPU: Placement agreement, TB 72ff, and activities record, TB 76ff.

[113] Dr Kolta Supplementary Statement [4], [9], TB 1829-1830; Guidelines on Area of Practice Endorsements dated 1 December 2019, pg 14, TB 1078.

[114] Dr Kolta Supplementary Statement [3]-[11], TB 1829-1831.

[115] Memorandum to Associate Professor Ann Knowles dated 8 May 2009 enclosing examiners' reports, Tab 1(b), 13-24. Swinburne specifically asked the examiners to assess the thesis against the following criteria: 1) the thesis makes a contribution to knowledge; 2) it demonstrates the candidate's mastery of relevant research methods and ability to manage the conduct of a research project; 3) it indicates the candidate's knowledge and analysis of relevant

literature, published work and source materials; 4) it contains material worthy of publication in a form appropriate to the discipline; 5) the format and literary presentation of the thesis are satisfactory.

[116] Dr Kolta Statement [5], Tab 17, TB 1149.

[117] Dr Kolta Statement [6], Tab 17, TB 1149; Dr Kolta Supplementary Statement [11(d)], TB 1831; Letter dated 5 November 2010 from Dr Maja Nedeljkovic, Tab 1(e), TB 29.

[118] Dr Allen Further Supplementary Report, Tab 26, [7], TB 1993-1994.

[119] Dr Allen Report dated 21 October 2020, Tab 21, [16], TB 1807.

[120] Prof Cook Report 2021, Tab 28, TB 2010-2011.

[121] Prof Cook support documents 2020, Tab 19, TB 1774-1777.

[122] Prof Cook Report 2021, Tab 28, TB 2008, 2013.

[123] Dr Allen Report, Tab 21, [(h)], [17], [27], TB 1802-1809; Dr Allen Supplementary Report, Tab 24, [(h)], [1], [9]-[10], TB 1981-1985; Dr Allen Further Supplementary Report, Tab 26, [(h)], [1], [9(c)], [9(d)], TB 1990-1997.

[124] 2010 Guidelines, Attachment C Transition and Grandparenting Guidelines for Endorsed Areas of Practice, pg 16, Tab 14(b), TB 900.

[125] Prof Cook Report 2021, Tab 28, TB 2010.

[126] Dr Kolta Supplementary Statement [30], [32], Tab 22, TB 1834; Pathways to Endorsement on Psychology Board website, Tab 22(f), TB 1859.

[128] Email from Elise Holmes to Evelyn Tadros dated 15 January 2021, Tab 22(c), TB 1853.

[130] Guideline prescribes a minimum of 1,500 hours, TB 1072.

[131] Guideline prescribes 40 hours, TB 1072.

[132] A requirement for continuing general registration.

[134] 2010 Guidelines, Tab 14(b), TB 889-890; 2011 Guidelines, Tab 14(h), TB 994; 2019 Guidelines, Tab 14(k), TB 1072.

[135] Refer Board Guidelines for recognition of prior supervised practice for approval of a registrar program with effect from 1 August 2011 which make clear that the Board (and therefore the Tribunal) has the discretion to approve a reduction in the requirements for the registrar program on a case-by-case basis.

[136] Notably, more than the 3,000 hours required of those who complete a doctorate degree (with minimum 1,500 hours of supervised practice) after 30 June 2010 and who were expected to do a minimum of one year full time equivalent supervised practice thereafter (another 1,500 hours). Prof Cook Report 2021, pg 6, Tab 28, TB 2010; 2010 Guidelines, Tab 14(b), TB 889; 2011 Guidelines, Tab 14(h), TB 994 and 2019 Guidelines, Tab 14(k), TB 1072.

[137] Taken from Clinical experience table, Tab 22(g), TB 1861-1864, summarized in Applicant's Outline of Submissions TB 2067-2068.

[138] Letter dated 26 October 2010 from Alasdair Vance, Tab 1(f), TB 30.

[139] Prof Cook Report 2021, Tab 28, TB 2007, 2012.

[140] Prof Cook Report 2021, Tab 28, TB 2013.

[141] Letter of Dr Barrett dated 24 March 2011, Tab 22(h), TB 1865-1866.

[142] Dr Allen Further Supplementary Report, Tab 26, TB 1997.

[143] 2010 Accreditation Standards 5.4.3, TB 967.

[144] 2019 Accreditation Standards Practice Placements, TB 1034.

[145] Prof Garton Report, Tab 16, [4.2(d)], TB 1146.

[146] Prof Garton Report, Tab 16, [4.2(c)], TB 1146.

[147] Prof Garton Report, Tab 16, [4.1(a)(i)], TB 1144.

[148] Prof Garton Report, Tab 16, [4.2(g)], TB 1147.

[149] Under cross examination, Prof Garton suggested this was quite unusual, according to information of her colleagues who had performed assessments. However, Prof Garton had no direct experience of universities approving placements prior to coursework cf evidence of Prof Cook.

[150] Nor does 'Practice Placement' under the 2019 Accreditation Standards.

[151] Cf written reference of Dr Maja Nedeljkovic dated 5 November 2010 (a clinical psychologist, researcher and published author in the area of Obsessive Compulsive Disorder) who, upon examination of Dr Kolta's thesis, considered that it would have satisfied the requirements of an equivalent level thesis in the area of Clinical Psychology, TB 29.

[152] Prof Garton Report, Tab 16, [4.2(j)], TB 1148.

[153] Oral evidence under cross examination.

[154] In the Tribunal's view, Prof Garton gave very confused answers here.

[155] TB, especially 452-583, 1531-2, 1885-1980, and 908ff.

[156] Respondent's Outline of Supplementary Submissions dated 9 February 2022, [33].

[166] Which means 'a standard used to assess whether a program of study, provides persons who complete the program with the knowledge skills and professional attributes necessary to practise the profession in Australia', s 5 national Law.

[167] Under s 47(3) of the National Law.

[168] Under s 47(6) of the National Law.

[169] Which has been accredited under s 48 of the National Law.

[170] A 'program of study' whether approved for the purpose of general registration or endorsement, goes through a similar procedure to an accreditation standard, namely, it must be approved by the Board, under s 49(1) and published on the website, under s 49(5) of the National Law.

[171] Boards' Counsel opening address.

[172] Namely, 'a qualification obtained by completing an approved program of study relevant to the endorsement', s 5 National Law.

[175] State of Victoria v Thompson [2019] VSCA 237, [27] citing R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 [124]-[125].

[176] R v A2 [2019] HCA 35; (2019) 93 ALJR 1106, 1117 per Kiefel CJ and Keane J at [33] (citations omitted).

[177] R v A2 [2019] HCA 35; (2019) 93 ALJR 1106, 1117 [34]-[37] and the cases cited therein; HFM043 v Republic of Nauru [2018] HCA 37; (2018) 359 ALR 176, 180 [24].

[178] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 [71], applied in Gebrehiwot v McCutcheon [2020] VSC 109, [34], [69].

[179] Pearce, D C & Geddes, R S, Statutory Interpretation in Australia 8th Edition (2014), 3.14, 133-136 and the cases cited therein. This accords with s 22 of the Interpretation of Legislation Act 1984 which provides that subordinate instruments must be construed as operating to the full extent of, but so as not to exceed, the legislative power of the State or the power to make the subordinate instrument covered by the Act under or pursuant to which it is made.

[180] Applicant's Closing Submissions [26].

[181] Transcript recording at 3:00-3:02 of 1 December 2021 (Cross-examination of Professor Cook). Professor Cook goes so far to say that he does not know of any other case where this has happened.

[182] This is supported in the extrinsic materials, namely the Health Practitioner Regulation National Law Bill 2009 Explanatory Memorandum, p 1in which it is stated that 'The principal objective of the Health Practitioner Regulation National Law Bill 2009 ... is to protect the public by establishing a national scheme for the regulation of health practitioners and students'; and the Second Reading Speech in which it is stated that 'The most significant amendments seek to boost public safety protection by ensuring health practitioners are suitably trained and qualified to practise in a competent and ethical manner': https://documents.parliament.qld.gov.au/tableOffice/HALnks/091006/Health.pdf.

[183] Applicant's Closing Submissions [22]-[23].

[184] Transcript recording at 3:28-3:38, 3:46-3:48, 4:07-4:09 of 1 December 2021 (Cross-examination of Professor Cook); 4:12 of 1 December 2021 (Re-examination of Professor Cook).

[185] Guidelines on Area of Practice Endorsements 1 December 2019, 3.2 Equivalence Guidelines, TB 1070.

[186] Applicant's Closing Submissions [24]. See also Pereira v Psychology Board of Australia [2016] VCAT 1882 [180]-[182].

[190] Citing Alroe v Medical Board of Queensland [2010] QCA 44, [14] (emphasis added).

[191] Consistent with Muir JA's comment in Alroe v Medical Board of Queensland [2010] QCA 44 [14] that 'the concept of substantial equivalence calls for a comparison of like with like'.

[192] Prof Garton Report, Tab 16, [(i)], [4.2(h)], TB 1143, 1148; Transcript recording 3 December 2021 (Cross-examination of Prof Garton). Prof Garton's hearsay commentary regarding what others working within the university system had told her is inadmissible and irrelevant.

[193] Prof Garton Report, Tab 16, [4.2(d)], TB 1146.

[194] Transcript recording 3 December 2021 (Cross-examination of Prof Garton).

[195] Dr Allen gave oral evidence to this effect.

[196] Transcript recording 3 December 2021 (Cross-examination of Prof Garton).

[197] 2019 Registration Standard, Tab 14(j), TB 1062.

[198] 2019 Guidelines, Tab 14(k), TB 1069. Prof Garton agreed that this reduction is an acknowledgement that a Doctoral degree requires a minimum 1,500 hours of supervised practice, compared to a Masters degree which requires a minimum of 3,000 hours.

[199] Prof Garton Report, Tab 16 [4.1(b)(i)], [4.1(e)] TB 1144, 1146-1147.

[200] Dr Kolta Supplementary Statement, Tab 22, [91], TB 1834 [91]. Also refer to Clinical experience table, Tab 22(g), TB 1861-1864, which also indicates supervision by clinical psychologists.

[201] Transcript recording 3 December 2021 (Cross-examination of Prof Garton).

[202] Letter of Dr Suzanne Barrett dated 24 March 2021, TB 1865-1866.

[203] Transcript recording 3 December 2021 (Cross-examination of Prof Garton).

[204] Transcript recording 3 December 2021 (Cross-examination of Prof Garton).

[205] Transcript recording 3 December 2021 (Cross-examination of Prof Garton).

[206] Prof Garton Report, Tab 16 [4.2(e)], TB 1146, where Prof Garton gives her opinion in answer to the question 'is the practice undertaken by Dr Kolta in the course of her employment, as identified in her curriculum vitae, substantially equivalent to the requirements of supervised practice under each of the Registration Standards'. Prof Garton further stated that none of the subsequent materials filed after her expert report, that went to the very issue of substantial equivalence of her supervised practice with the registrar program, would have been relevant or altered that opinion; Transcript recording 3 December 2021 Cross-examination of Prof Garton).

[207] For example, she accepted Prof Cook's and Dr Allen's evidence that it is possible for universities to approve placements prior to particular coursework and that she did not work in a university making such decisions to say otherwise: Transcript recording 3 December 2021 (Cross-examination of Prof Garton). She also conceded that Dr Kolta had gained experience in working with people with serious mental health illness after completing her qualifications contrary to her expert report at TB 1146: Transcript recording 3 December 2021 (Cross examination of Prof Garton).

[208] For example, she accepted that her understanding of the 'fundamental differences' between counselling psychology and clinical psychology which informed her opinion of substantial equivalence as set out in Prof Garton Report at TB 1145 were based purely on the language differences of the text and not from her experience: Transcript recording 3 December 2021 (Cross-examination of Prof Garton). See, by contrast, Prof Cook's view on how this difference is purely semantic in Transcript recording (Cross-examination of Professor Cook) and TB 2013.

[209] Transcript recording 3 December 2021 (Cross-examination of Prof Garton). See. by contrast, Dr Barrett's view that other registrars seeking endorsement for clinical psychology have completed their registrar program in similar settings and that clinical psychology work in a school is appropriate for a clinical registrar program: Transcript recording 2 December 2021 (Examination of Dr Barrett).

[210] Transcript recording 3 December 2021 Cross-examination of Prof Garton). See. by contrast, TB 1926 in relation to Doctorate of Clinical Psychology course description of Research Project subjects where it describes an aim to produce a research thesis 'that is an original and significant contribution to knowledge in the clinical psychology field' and Prof Cook's view 1 December 2021 (Cross-examination of Professor Cook).

[211] Transcript recording 3 December 2021 (Cross-examination of Prof Garton). See, by contrast, Dr Allen's view of her significant experience in conducting assessments as being of the nature of clinical practice: Transcript recording 2 December 2021 (Examination of Dr Allen by Tribunal).

[212] Transcript recording 3 December 2021 (Cross-examination of Prof Garton). This question was specifically asked not in the context of the legal framework of 'substantial equivalence'.

[213] Transcript recording 3 December 2021 (Cross-examination of Prof Garton).

[214] Transcript recording 3 December 2021 (Cross-examination of Prof Garton) cf 2019 Guidelines at 3.2 Equivalence Guidelines: TB 1070.

[215] Transcript recording 1 December 2021 (Cross-examination of Professor Cook); 1 December 2021 (Re-examination of Professor Cook).

[216] Transcript recording 1 December 2021 (Cross-examination of Professor Cook).

[217] Transcript recording 1 December 2021 (Cross-examination of Professor Cook).

[218] Transcript recording 1 December 2021 (Re-examination of Professor Cook).

[219] Transcript recording 1 December 2021 (Cross-examination of Professor Cook).

[220] Transcript recording 1 December 2021 (Cross-examination of Professor Cook). Prof Cook further opines that he does not know of any other case where this has happened that Dr Kolta has been 'one of the most successful students we've had in terms of her results'; and Transcript recording 1 December 2021 (Re-examination of Professor Cook).

[221] Transcript recording 2 December 2021 (Examination of Dr Allen).

[222] Transcript recording 2 December 2021 (Examination of Dr Allen). See also Dr Allen Supplementary Report, Tab 24, [6], TB 1984; Dr Allen Further Supplementary Report, Tab 26, [4], [7], TB 1993.

[223] Transcript recording 2 December 2021 (Examination of Dr Allen).

[224] Transcript recording 2 December 2021 (Examination of Dr Allen).

[225] Dr Allen confirmed that the differences in assessment between the Graduate Diploma CP and the Clinical Doctorate were very small: Transcript recording 2 December 2021 (Cross-examination of Dr Allen).

[226] Transcript recording of 2 December 2021 (Examination of Dr Allen by the Tribunal).

[227] Transcript recording 2 December 2021 (Cross-Examination of Dr Allen).

[228] Transcript recording 2 December 2021 (Examination of Dr Barrett).

[229] Transcript recording 2 December 2021 (Examination of Dr Barrett by the Tribunal).

[230] Transcript recording 2 December 2021 (Cross-Examination/Re-examination of Dr Barrett.