Linquist v Nursing and Midwifery Board of Australia

The decision to refuse Ms Linquist's application for registration

1. In a notice dated 4 December 2017, advising Ms Linquist of its decision to refuse registration, the Board raised, in particular, the lengthy period of time Ms Linquist had been out of practice, the fact that she had not maintained a connection with the nursing profession during that time, had not undertaken any Board-approved program or assessment during the previous five years and had not undertaken any supervised practice within the previous five years. The Board stated that she was not a suitable candidate for "re-entry or supervised practice" because of those things.
2. Further the Board stated that in accordance with its "Policy for re-entry to practice for nurses and midwives" (the Policy) Ms Linquist was required to demonstrate the successful completion of a Board-approved entry to practice program of study. It wrote that a "re-entry course" would be insufficient to bridge the gaps in Ms Linquist's professional knowledge to enable her to practise nursing competently and safely. Therefore it required her to undertake a Board-approved entry to practice program of study, leading to initial registration as a nurse.

Does the Tribunal have jurisdiction to hear the appeal?

1. The Board argues that the Tribunal does not have jurisdiction to determine the appeal. Ms Linquist disagrees.
2. The legislation governing the registration of nurses and other health practitioners in NSW is the Health Practitioner Regulation National Law (NSW) (the National Law). Section 175(1)(a) states that a person who is the subject of "a decision by a National Board to refuse to register the person" may appeal that decision to the "appropriate responsible tribunal". As Ms Linquist lives in NSW, the NSW Civil and Administrative Tribunal (NCAT) is the appropriate responsible tribunal: s 175(2)(c)(i).
3. The notice dated 4 December 2017, informing Ms Linquist that her application for registration had been refused, was headed "Notice of refusal of application for general registration as a Registered Nurse". The notice informed Ms Linquist that she had a right of appeal against that decision under s 175. On its face, that was a notice that fell squarely within the parameters of s 175(1)(a).
4. In response, through her legal representatives, Ms Linquist filed a notice of appeal with NCAT. The notice did not specify the nature of the appealable decision nor the specific provision of the National Law under which the appeal was brought. It did not need to. It was abundantly clear from the notice of appeal that Ms Linquist was appealing against the Board's decision to refuse to grant registration, a copy of which was attached to the notice of appeal.
5. The notice of appeal sets out two grounds of appeal, namely that the Board erred in: 1. Deciding on the merits that the Applicant was not a suitable person to undertake a re-entry to practice program. 2. Applying the "Framework for assessment of nursing and midwifery applicants for re-entry to practice" to the application made by the Applicant.
6. Whether those grounds have merit is not a jurisdictional question. In concluding that Ms Linquist's application for registration must be rejected, the Board made a number of other decisions, including that she was not a suitable candidate for a re-entry course or supervised practice. The Board gave reasons for its decision to refuse registration. It outlined the factors it took into account and the conclusions it had reached. The grounds of appeal responded to those reasons.
7. The Board contends that because the decisions listed in paragraph [12] are not "appealable decisions" for the purpose of s 175(1) of the National Law, the Tribunal lacks jurisdiction to hear the appeal. This contention mischaracterises Ms Linquist's appeal. The appeal is brought against the decision to refuse to grant registration. The Tribunal is not deprived of jurisdiction because the notice of appeal refers to related or subsidiary decisions made by the Board. The Board's argument is rejected.

Nature of the appeal .

1. This appeal is an "external appeal": s 175 of the National Law and s 31(4) of the Civil and Administrative Tribunal Act 2013 (NSW).
2. It is an appeal in the nature of an appeal de novo: McMahon v The Nursing and Midwifery Board of Australia [2013] NSWNMT 4 at [68]. As the High Court explained in Allesch v Munch [2000] HCA 40; 203 CLR 172 at [23], an appeal by way of rehearing and a hearing de novo are different in that: In [an appeal by way of rehearing], the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.
3. In short, the role of the Tribunal in this appeal is to determine Ms Linquist's application for registration afresh. To succeed in the appeal Ms Linquist does not need to demonstrate error on the part of the Board.
4. Where, as in this case, the Tribunal is constituted by a single member, the appeal is restricted to points of law: s 165B(4) of the National Law. The points of law in this case concern questions of jurisdiction and statutory construction.

Issues

1. The central issues raised in this appeal are: 1. Does the Standard apply to a nurse who has not practiced for more than 10 years? 2. If yes, does Ms Linquist not meet a requirement for registration stated in the Standard? 3. If Ms Linquist does not meet a requirement for registration, can the power to impose conditions on registration be exercised to achieve eligibility for registration?

The statutory scheme governing the registration of nurses in NSW

1. The National Law provides for a number of objectives and guiding principles. The first object is the establishment of a national registration and accreditation scheme for health practitioners: s 3(1). The objectives of the national registration and accreditation scheme include "provid[ing] 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": s 3(2)(a). In NSW, an additional objective and guiding principle applies: "In the exercise of functions under a NSW provision, the protection and safety of the public must be the paramount consideration": s 3A.
2. The guiding principles of the national registration and accreditation scheme include that the scheme is to "operate in a transparent, accountable, efficient, effective and fair way": s 3(3)(a).
3. The respondent Board, the Nursing and Midwifery Board of Australia, is one of 14 National Health Practitioners Boards established by s 31(1) of the National Law. The functions of the National Health Practitioners Boards include registering suitably qualified and competent persons in the health profession and, if necessary, imposing conditions on the registration of persons in the profession: s 35(1)(a).
4. Part 7 of the National Law concerns registration of health practitioners. Contained in Part 7, s 52 sets out the eligibility requirements for general registration: (1) An individual is eligible for general registration in a health profession if-- (a) the individual is qualified for general registration in the health profession; and (b) the individual has 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; and (c) the individual is a suitable person to hold general registration in the health profession; and (d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and (e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession. (2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83. (Emphasis added)
5. The requirement in s 52(1)(c) that the individual be a "suitable person to hold general registration in the health profession" is given meaning by s 55 which lists a number of grounds on which a National Board may decide that an individual is not a suitable person to hold general registration. Section 55 states: (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if-- … (f) the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession…
6. Individuals may apply to the Board for registration in the nursing profession: s 77. Before deciding whether to register an applicant, the Board may undertake checks and investigations, require applicants to provide further information, require applicants to attend and answer questions and various other procedures: ss 78-80. If the Board proposes to refuse registration, it is obliged to give the applicant written notice and to invite him or her to make submissions about that proposed course of action: s 81. The Board must then consider the application and any submissions made pursuant to s 81 and make a decision: s 82.
7. The Board must refuse to grant registration if the applicant is ineligible for registration because they do not satisfy the five criteria listed in s 82(1)(c)(i). Section 82 provides: (1) After considering an application for registration and any submissions made in accordance with a notice under section 81, a National Board established for a health profession must - (a) decide to grant the applicant the type of registration in the health profession applied for if the applicant is eligible for that type of registration under a relevant section; or (b) decide to grant the applicant a type of registration in the health profession, other than the type of registration applied for, for which the applicant is eligible under a relevant section; or (c) decide to refuse to grant the applicant registration in the health profession if - (i) the applicant is ineligible for registration in the profession under a relevant section because the applicant - (A) is not qualified for registration; or (B) has not completed a period of supervised practice in the health profession, or an examination or assessment required by the Board to assess the individual's ability to practise the profession; or (C) is not a suitable person to hold registration; or (D) is disqualified under this Law from applying for registration, or being registered, in the health profession; or (E) does not meet a requirement for registration stated in an approved registration standard for the profession; or (ii) it would be improper to register the applicant because the applicant or someone else gave the National Board information or a document in relation to the application that was false or misleading in a material particular. (2) In this section-- relevant section means section 52, 57, 62, 65 or 73. (Emphasis added)
8. While expressed in the negative, the five criteria listed in s 82(1)(c)(i) correspond to the eligibility requirements for registration listed in s 52(1).

Approved registration standards

1. Part 5, Division 3 of the National Law requires Boards to develop registration standards for health practitioners to be recommended to the Australian Health Workforce Ministerial Council for approval: s 38. Among the matters about which Boards are required to develop standards are "requirements in relation to the nature, extent, period and recency of any previous practice of the profession by applicants for registration in the profession": s 38(1)(e).
2. Once submitted and approved by the Ministerial Council, a recommended registration standard becomes an "approved registration standard" for the purposes of the National Law: s 12(2). Approved registration standards must be published on the relevant Board's website and take effect on the day of publication: ss 40(3) and 40(4).

Registration standard: recency of practice

1. Since 2010, the Ministerial Council has approved a number of standards recommended by the Board, including the standard relevant to this appeal - the Registration standard: recency of practice. The current version of the standard was published on the Board's website on 1 June 2016 (the Standard).
2. The Standard defines the term "recency of practice" to mean that a health practitioner has "maintained an adequate connection with, and recent practice in the profession since qualifying for, or obtaining registration".
3. The Standard acknowledges two main areas of practice: clinical practice and non-clinical practice. With respect to the former, the Standard states: Nurses and midwives in clinical practice Enrolled nurses, registered nurses and midwives will fulfil the recency of practice requirements if they can demonstrate one or more of the following: • completion of a minimum of 450 hours of practice within the past five years • successful completion of a program or assessment approved by the NMBA • successful completion of a period of supervised practice approved by the NMBA. (In these reasons I will refer to these requirements as the "Recency of Practice requirements".)
4. The Standard goes on to address the issue of exemptions: Are there exemptions to this standard? There are no exemptions to this standard. The section below, 'What happens if I don't meet this standard?', explains what you need to do if you don't meet this standard and wish to continue or return to practice.
5. The Standard then addresses the question "What happens if I don't meet this standard?": What happens if I don't meet this standard? If you want to continue to practise, or return to practice after taking a break, and you don't meet this standard, you will need to provide information to help the NMBA decide whether you are able to continue to practise. Nurses in clinical practice Nurses seeking to work in clinical practice who do not satisfy the requirement for recent clinical practice must meet different requirements, depending on the length of absence from practice. The NMBA's Re-entry to practice policy provides information about how you may retain or obtain registration and return to practice.

Policy for re-entry to practice for nurses and midwives

1. On 1 June 2016, the Board adopted and published on its website its "Policy for re-entry to practice for nurses and midwives" (the Policy). It states: Who this policy is for? This policy applies to people who hold, or have previously held, registration as a nurse and/or a midwife in Australia, who are seeking general registration but do not meet the Recency of practice registration standard, including those who: • have had a lapse in practice of five years or more • have held non-practising registration for five or more years, or • are no longer on the register … For persons who have not practised as a nurse or midwife for ten years or more, applications will be individually assessed to determine whether an NMBA [Nursing and Midwifery Board of Australia]-approved entry to practice program of study needs to be completed.
2. The Policy goes on to state: Assessment for persons who have not practised for a period of ten years or more For persons who have not practised as a nurse or midwife for ten years or more, the assessment will determine whether they need to demonstrate the successful completion of a NMBA-approved entry to practice program of study, leading to initial registration. The applicant will be required to apply directly to a NMBA-approved education provider for recognition of prior learning (RPL). The education provider will identify the requisite studies in an accredited re-entry to practice pathway. The requisite studies must be part of a NMBA approved entry to practice program of study leading to registration.
3. Of some significance in this appeal are the two types of Board-approved programs of study referred to in the Policy: an "entry to practice program of study" and a "re-entry to practice program of study". The Policy explains: 'Successful completion' of a program of study approved by the NMBA may be either: • a re-entry to practice program accredited by ANMAC [Australian Nursing and Midwifery Accreditation Council] and approved by the NMBA for registration as a nurse or midwife, or • completion of all, or part of, a nursing or midwifery entry to practice program of study accredited by ANMAC and approved by the NMBA that leads to registration as a nurse or midwife. It is the responsibility of the NMBA-approved education provider to determine the amount of recognition of prior learning the applicant will be given in accordance with recognised best practice standards. The successful completion of these NMBA-approved programs of study leads to general registration as a nurse or midwife, once all other registration requirements are met. Where these programs are used as a pathway for re-entry to practice for persons solely qualified in mental health, paediatric or disability nursing, the pathway must be accredited by ANMAC and approved by the NMBA.
4. The Policy defines a "re-entry program" to mean: a program of study accredited by ANMAC and approved by the NMBA as preparation for nurses and midwives for re-entry to the register after a lapse in practice and removal from the register for a period exceeding the requirement in the Recency of practice registration standard. It contains both a theoretical and a clinical experience component.

The parties' contentions

1. Ms Linquist contends that, properly construed, the Standard does not mandate that an applicant in her position, namely a nurse who has not practised for ten years, must meet one of the three Recency of Practice requirements. Rather, she contends that the Standard requires that they "must meet different requirements", which are determined by the applicant's length of absence from practice. She contends that in her case the relevant requirement is found in the Policy which requires the Board to individually assess an applicant to "determine whether an NMBA-approved entry to practice program of study needs to be completed".
2. Ms Linquist contends that the Policy gives the decision-maker a discretion to require the applicant to demonstrate the successful completion of a Board approved re-entry to practice program of study. It follows, she argues, that where the decision maker decides to exercise the discretion to permit an applicant to demonstrate the successful completion of a re-entry to practice program of study, and not an entry to practice program of study - a decision which she contends is within the power of the Tribunal on appeal - it cannot be said the applicant has failed to satisfy the Standard.
3. In the alternative, she contends that a failure to satisfy the Policy is not a failure to satisfy the Standard. She argues therefore, that it cannot be said that she fails to satisfy s 82(1)(c)(i)(E).
4. The Board contends that there can be no argument that the Standard applies to Ms Linquist, pointing to the statement in the Standard that it applies to "all registered nurses". The Board points out that Ms Linquist concedes that at the time of making the application and on appeal, she does not meet any of the Recency of Practice requirements. It follows, argues the Board, that Ms Linquist fails to satisfy ss 82(1)(c)(i)(C) and 82(1)(c)(i)(E) of the National Law and therefore the only decision available to the Tribunal is to confirm the decision made by the Board: to refuse to grant her application for registration.

Status of the Standard and the Policy

1. Section 82(1)(c)(i)(E) requires that the Board "must refuse to grant the applicant registration in the [relevant] health profession" if the applicant "does not meet a requirement for registration stated in an approved registration standard for the profession". The Policy is not an "approved registration standard for the profession" and is not recognised by the National Law. Therefore, the question arises as to the relevance of the Policy in determining whether Ms Linquist satisfies s 82(1)(c)(i)(E).
2. As noted above, Ms Linquist's alternative submission is that the Policy is not an approved registration standard and therefore a failure to meet a requirement of the Policy is irrelevant to the question of whether she fails to satisfy s 82(1)(c)(i)(E). The Board contends that in determining Ms Linquist's application for registration, the Tribunal is in effect bound by the Policy, citing in support McMahon and Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472.
3. In McMahon v The Nursing and Midwifery Board of Australia [2013] NSWNMT 4, the Nursing and Midwifery Tribunal considered the status of one of the predecessors to the current Policy and wrote at [110]: [S]ubject to procedural fairness considerations, the Tribunal, should, as explained by McClellan CJ in Stockland, have regard to such policy and should consistently, so far as practicable, interpret the Standard in conformity with the policy.
4. The reference to "McClellan CJ in Stockland" is a reference to the following passage from the decision of McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [95], which the Tribunal in McMahon set out at paragraph [92] of its reasons: Where, as in the present case, urban design controls which may not have been embodied in a development control plan have, nevertheless, been carefully thought out after detailed consultation with relevant parties, a council should make decisions which give them practical application. Unless cogent reasons suggest otherwise, a council is also entitled to expect the Court to require development to conform to the adopted parameters…
5. In Stockland McClellan CJ considered two types of policies developed by local councils: (i) "development control plans", namely planning documents which a decision maker was required by the Environmental Planning & Assessment Act 1979 (NSW) to take into account in determining a development application, and (ii) planning policies which did not have statutory recognition or were not embodied in policies that did. His Honour considered the approach to be taken, and the weight to be given, to the latter at [90], [91]: In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options.
6. His Honour noted that the relevant policy, in that case an "urban design control", while not embodied in a development control plan had, nevertheless, "been carefully thought out after detailed consultation with relevant parties" and a council should "make decisions which give them practical application" at [95]: Unless cogent reasons suggest otherwise, a council is also entitled to expect the Court to require development to conform to the adopted parameters. The evidence of the expert witnesses called by the applicant failed to acknowledge the significance of the Urban Design Controls and the role of detailed policy in providing for the orderly development of land which is, of course, one of the fundamental objectives of the planning legislation.
7. The submissions made by the Board conflate the two types of policies referred to by McClellan CJ in Stockland. Nonetheless, for the purpose of determining whether, as the Board contends, Ms Linquist's application must be refused because she fails to meet a "requirement for registration", I accept that the Standard is to be read in conjunction with the Policy. (See also Hanes v Psychology Board of Australia (Review and Regulation) [2015] VCAT 886 at [58].)

Does the Standard apply to Ms Linquist and if so does she satisfy the Standard?

1. To be eligible for registration in a health profession, an individual must satisfy five criteria. The issue in dispute is whether Ms Linquist satisfies two of those criteria, namely, whether she is a suitable person to hold general registration (s 52(1)(c)) and whether she meets any other requirements for registration stated in an approved registration standard (s 52(1)(e)). In the decision under appeal, these criteria are effectively one and the same thing. The Board contends that Ms Linquist is not a suitable person to hold general registration in the nursing profession because "the nature, extent, period and recency of [her] previous practice of the profession is not sufficient to meet [the Standard]": s 55(1)(f). Her purported failure to meet the requirements of the Standard is also the basis for the Board's contention that Ms Linquist does not satisfy s 52(1)(e).
2. Central to the question of whether Ms Linquist satisfies ss 52(1)(c) and 52(1)(e) is whether, as the Board contends and Ms Linquist disputes, the Standard applies to a nurse who has been absent from practice from more than ten years.
3. The Standard sets out the minimum requirements for recency of practice for registered nurses and midwives. It states that it applies to all applicants for registration as a nurse. It states it does not apply to applicants "with non-practising registration or to recent graduates or students". Crucially, the Standard explains that "there are no exemptions to this standard". The Board and the Tribunal are, therefore, bound by and must apply the Standard.
4. The Standard informs applicants for registration that they "must meet this registration standard". To meet the Standard, an applicant must meet at least one of the Recency of Practice requirements set out in paragraph [32] of these reasons.
5. The Standard states that if an applicant does not meet the registration criteria, they must meet "different requirements depending on the length of absence from practice". Those requirements are set out in the Policy. Ms Linquist does not at this stage satisfy any of the three Recency of Practice requirements. The Policy therefore applies.
6. The Policy states that it applies to individuals who hold or have previously held registration and who are seeking general registration but who do not meet the Standard.
7. The Policy states that an applicant who no longer holds registration as a nurse will have their application for registration assessed on an individual basis against the Standard and that assessment will be based on their professional practice history and length of time away from practising in the profession. The purpose of that assessment is stated to be to determine "the most appropriate approach to demonstrating competence and eligibility for registration".
8. The Policy then deals with the assessment of two categories of applicants who have been absent from practice for more than 5 years: those who have not practised for 5 to 10 years and those who have not practised for 10 years or more. For applicants in the first category, the Policy provides two pathways to re-registration: supervised practice or a "re-entry to practice program approved by the NMBA".
9. With respect to the assessment of applicants in the second category - people who have not practiced for 10 or more years - the Policy states: … the assessment will determine whether they need to demonstrate the successful completion of an NMBA-approved entry to practice program, leading to initial registration. The applicant will be required to apply directly to an NMBA-approved education provider for recognition of prior learning (RPL). The education provider will identify the requisite studies in an accredited re-entry to practice pathway. The requisite studies must be part of an NMBA-approved entry to practice program of study leading to registration.
10. Although there are some ambiguities in this passage, it appears to describe two stages of re-entry to practice for nurses who have been out of practice for 10 years or more: first, they are assessed to determine whether they need to complete an "entry to practice program"; and, second, it is envisaged that the applicant may receive at least some credit for their past experience and training within such a course. How much credit would be given would be identified by the course provider in consultation with the nurse or midwife individually. The Policy notes that "It is the responsibility of the NMBA-approved education provider to determine the amount of recognition of prior learning the applicant will be given in accordance with recognised best practice standards".

Consideration

1. The Standard states the provisions of the Policy apply if an applicant cannot satisfy any of the Recency of Practice requirements. The Policy states that such applicants will only be eligible for registration if they submit to assessment by the Board and demonstrate successful completion of any requirement imposed by the Board, following that assessment. The types of requirements the Board may impose following assessment are in effect a sub-set of requirements 2 and 3 of the Recency of Practice requirements. In respect of an applicant who has not practised for a period of 5 to 10 years, the Board may decide that, to be eligible for registration, the applicant must demonstrate successful completion of a period of supervised practice approved by the Board (Recency of Practice requirement 3) or a re-entry to practice program (part of Recency of Practice requirement 2). In respect of an applicant who has not practised for ten years or more, the Board may decide that to be eligible for registration the applicant must complete an entry to practice program of study (part of Recency of Practice requirement 2). The practical effect of the Policy is to limit the ways in which an applicant who has not practised for more than five years can satisfy the Standard.
2. The Policy does not expressly address the question of whether an applicant who has not practiced for 10 years or more, will be required to satisfy any other requirement if the Board determines they do not need to complete an entry to practice program of study. The assumption made by the parties is that the Board will require such applicants to complete a re-entry to practice program. The Policy and Standard, if read literally, are to a certain degree inconsistent and therefore ambiguous. Recency of Practice requirement 2 refers only to "successful completion of a program or assessment approved by the NMBA". It makes no explicit distinction between programs for people who have been out of practice for 5-10 years and those out of practice for 10 years and longer. Similarly, in the Policy, the "successful completion" requirement is said to be satisfied either by completion of a "re-entry to practice program of study" or of an "entry to practice program of study". Read literally, and without taking context into account, this could lead to an interpretation suggesting that a person who has not practiced in the past 10 years could elect to satisfy the Recency of Practice requirement by completing a re-entry course alone.
3. That would be a misinterpretation of both the Standard and the Policy. Such an interpretation would skirt the issue of the preliminary assessment of the individual applicant's professional practice history and time out of practice and pay no attention to the fact that the Policy explicitly contemplates that credit might be given to an applicant who restarts his or her training in an "entry to practice" program.
4. A contextualised and purposive reading of the Standard and the Policy, taken together, is that for applicants who have been absent from practice for 10 or more years, the default position is that unless otherwise assessed, they will be required to undertake an entry to practice program.
5. It is not in issue that Ms Linquist does not meet any of the Recency of Practice requirements. Nor has she fulfilled the requirement imposed by the Board following assessment that she complete a further entry to practice program. It follows that at the time she made her application for registration and at the time of this appeal she does not meet a requirement for registration stated in the Standard and does not satisfy ss 52(1)(c) and 52(1)(e).

Can conditions be imposed to make Ms Linquist eligible for registration?

1. Ms Linquist asserts that it would be open to the Tribunal to impose a condition on her registration to remedy any defect in her eligibility for registration. She proposes that she be granted registration on the condition that she undertake a re-entry to practice program of study. She argues that the Tribunal can and should assess her as being a suitable person to undertake such a program. The Board disagrees and contends that neither it nor the Tribunal has power to grant registration, conditionally or otherwise, in circumstances where an applicant does not comply with the eligibility requirements for registration contained in s 52. Citing McMahon at [111] and [112] and Krause v Medical Board of Australia [2013] VCAT 1009, the Board contends that conditions cannot be used as a "back door" means of avoiding a requirement for registration stated in the Standard.
2. The answer to this question turns on the proper construction of ss 52, 82 and 83. Section 52 is set out above at paragraph [23] and s 82 is set out at paragraph [26].
3. Section 83 provides: 83 Conditions of registration (1) If a National Board decides to register a person in the health profession for which the Board is established, the registration is subject to any condition the Board considers necessary or desirable in the circumstances. Note. A failure by a registered health practitioner to comply with a condition of the practitioner's registration does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (2) If the National Board decides to register the person subject to a condition referred to in subsection (1), the Board must decide a review period for the condition.
4. The issue of whether a decision-maker can impose conditions to establish eligibility for registration was considered in McMahon, Krause and Chinese Medicine Board of Australia v Lee [2014] QCA 149 (Lee).
5. In McMahon, the appellant nurse appealed to the Nursing and Midwifery Tribunal of NSW against the decision of the Board to refuse to accept her application for registration. The appellant did not meet the relevant registration standard, but proposed that she be granted conditional registration. The Tribunal accepted the Board's submission that s 52(2) could not be used as a means of avoiding the requirements for registration set out in s 52(1), including compliance with an approved standard: at [111] and [112].
6. A similar conclusion was reached by the Victorian Civil and Administrative Tribunal in Krause. Dr Krause appealed to VCAT against a decision by the Medical Board of Victoria to refuse to grant her registration as a medical practitioner. Dr Krause completed her medical training and worked for a short period in Germany. For over a decade she worked in Australia with limited registration. Dr Krause accepted that she did not qualify for general registration but sought general registration subject to the condition that she act only as a surgical assistant.
7. VCAT decided that as Dr Krause had failed to satisfy each of the criteria in s 82(1)(c)(i), it was not open to the Tribunal to grant conditional registration of the kind sought by Dr Krause. VCAT held that the power to impose conditions conferred by ss 52(2) and 83 of the National Law, does not give the Tribunal a discretion to waive compliance with the eligibility criteria prescribed by ss 52 and 53. The Tribunal stated at [68], [70], [71]: In the Tribunal's view, consistent with the submissions made on behalf of the Board, sub-s 52(1) and s 83 do not either expressly or by implication abrogate the necessity for an applicant to have complied with the eligibility criteria otherwise prescribed by s 52 and in turn s 53. The imposition of conditions is predicated upon an individual otherwise satisfying the eligibility criteria for registration. The circumstances in which the Board may nevertheless consider imposing conditions upon registration will be typically: (a) where the professional performance of a registered practitioner has been found deficient in some respect, resulting in sanctions such as a fine, suspension or cancellation of registration; (b) where the registered practitioner may have suffered a physical impairment, which would render the right to unconditional general medical practise inappropriate or impracticable; or (c) where the registered practitioner seeks to restrict their practice and their exposure to professional indemnity insurance accordingly. ... The Tribunal endorses the submission of the Board's counsel to the effect that registration by way of conditions, notwithstanding that the applicant does not satisfy the basic requirements of general registration, would subvert the registration system. Indeed such a 'sub-category' of registration would enable serious deficiencies in satisfaction of criteria for general registration to be remedied by the imposition of conditions, which purport to obviate those deficiencies by restricting the registrant's right to practise medicine. In the Tribunal's view, such an outcome would, as concluded by the Board's counsel, be 'anomalous, confusing and problematic and would undermine the system of registration as it is structured'. In the Tribunal's view, the regime for registration of health practitioners prescribed under Part 7 of the National Law, does not provide for any residual discretion in the Board, or in turn the Tribunal, to impose conditions upon registration, in lieu of an applicant meeting eligibility criteria. The preamble to sub-s 52(1), 'Without limiting subsection (1) ...' makes this purpose and intent clear enough. The circumstances which may give rise to appropriate conditions attaching to registration, of the kind outlined above, do not relate to a deficiency in prescribed eligibility.
8. In Lee, the Queensland Court of Appeal rejected the reasoning in Krause. Morrison JA (Gotterson JA and Boddice J agreeing) stating at [53]: First, no attention was paid to the significance of the word "by" in s 52(2), where it provides that a Board "may decide the individual is eligible for general registration in the profession by imposing conditions ...". … As discussed above, the use of the word "by" makes it clear that the eligibility is achieved per force of the imposition of conditions. Thus, in my view it is incorrect to say that the imposition of conditions was predicated upon an individual "otherwise satisfying the eligibility criteria for registration". Secondly, the enumerated circumstances in which conditions might be applied do not appear anywhere in the text of the legislation. True it is that those circumstances "do not relate to a deficiency in prescribed eligibility", but for that very reason cannot circumscribe the general discretion given under s 52(2) to impose conditions. Thirdly, s 52(2) expressly confers a discretion on the Board to achieve eligibility for registration by the imposition of conditions. I do not believe, with respect, that approach would subvert the registration system, when the National Law makes it part of the registration system.
9. Referring to McMahon, Morrison JA stated at [55]: I agree, with respect, that s 52(2) cannot be used as a means of avoiding compliance with the requirements of s 52(1). However, s 52(2) provides a means by which compliance with s 52(1) can be achieved. That is, eligibility can be achieved per force of the imposition of conditions. Because s 52(2) applies to each part of s 52(1) it can apply to s 52(1)(e), dealing with whether an individual meets the requirements for registration stated in a standard. To the extent that McMahon suggests the contrary, I respectfully disagree.
10. Morrison JA reasoned at [45] that the use of the word "by" in s 52(2) is important: It signifies that it is the imposition of the conditions themselves which establishes eligibility. Put another way, it is the conditions which cause eligibility. Were it intended to be otherwise, the section could have said something like "may decide the individual is eligible for general registration in the profession and in doing so may impose conditions ...".
11. Morrison JA also considered the use of the word "may" in s 52(2) to be significant, stating at [49]: The use of the word "may" in s 52(2) clearly gives a Board a discretion which it can exercise to decide if someone is eligible by the imposition of conditions. However, that discretion is not unconstrained. It would have to be exercised by reference to relevant, and not to irrelevant, considerations, and within the framework of the National Law and its objects.

Consideration

1. The issue to be determined is whether ss 52(2) and 83 override the requirements of s 52(1) and the statutory direction that the Board must refuse to grant registration if the applicant is ineligible for registration because they do not satisfy the criteria listed in s 82(1)(c)(i). The Board argues that the "more liberal view" of s 52(2) expressed in Lee does not take into account the statutory instruction that a decision-maker must refuse to grant registration if the applicant is ineligible for registration because they do not meet the five requirements for registration listed in s 82(1)(c)(i). It contends that the power to impose conditions conferred by ss 52(2) and 83 should be interpreted to mean conditions of a type which are in addition to the general registration requirements.
2. As pointed out by the Queensland Court of Appeal in Lee, s 52(2) expressly confers a discretion on the decision-maker to achieve eligibility for registration by the imposition of conditions.
3. Whether, as Ms Lindquist contends, ss 52(2) and 83 override the requirements of ss 52(1) and 82(1) requires consideration to be given to the context and purpose of these provisions. In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, the plurality gave guidance as to the proper approach where there is an apparent conflict between provisions in a statute at [69], [70]: The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
4. To adopt the interpretation advanced by the Board requires the power to impose conditions conferred by ss 52(2) and 83 to be read down and limited to circumstances where the applicant has already satisfied the requirements for registration. I agree with the reasoning in Lee that s 52(2) provides a means by which compliance with s 52(1) can be achieved through the imposition of conditions. In my view s 82(1) should be interpreted to mean that where through the imposition of conditions the applicant satisfies the requirements for registration listed in s 52(1), the Board is not obliged to refuse registration. Indeed, where through the imposition of conditions the applicant satisfies the requirements for registration, s 82(1)(a) requires that the Board must grant registration. Whether it is appropriate to exercise the power to impose conditions to permit the applicant to become eligible for registration, is a different question. As pointed out in Lee at [49] that power is not unconstrained and must be "exercised by reference to relevant, and not to irrelevant, considerations, and within the framework of the National Law and its objects".
5. Further, given that the National Law is uniform national legislation, I should follow the decision in Lee, unless persuaded it is plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107 at [135]. I have not been persuaded that it is clearly wrong and, to the contrary, agree with the Court's reasoning, as I have stated above.

Should conditions be imposed?

1. Whether, as Ms Linquist proposes, the discretionary power conferred by s 52(2) to impose conditions on her registration should be exercised, goes to the merit of the appeal.
2. That decision must be made by a Tribunal constituted in accordance with s 165B(2).

Decision 1. The Tribunal has jurisdiction to determine the appeal. 2. The appeal is listed for directions on 23 November 2018 at 11:30.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 09 November 2018 - Correction to coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2018