Medical Board of Queensland v Renton

the statutory provisions 4 The Queensland Medical Practitioners Registration Act is part of a legislative scheme concerned with registration and professional standards: see s 4. Section 6 states that it does not affect the operation of the Mutual Recognition Act. It provides for both general and specialist registration, as earlier mentioned. The Dictionary to the Act explains the terms 'general registration' and 'specialist registration' only by reference to the registration of a person as a general or specialist registrant. A 'specialty' is however defined as '…a branch of medicine prescribed under a regulation to be a specialty'. The regulations under the Queensland Act list an intensivist as a speciality. 5 Under the Queensland Act a person is eligible for general registration if they hold the qualifications referred to in s 44 and are fit to practise the profession: s 43. Section 44 requires an applicant to have successfully completed a medical course accredited by the Australian Medical Council or to have passed the examination set by the Council for the purpose of qualifying persons for general registration. General registration may be subject to conditions. The conditions which may be imposed if the Medical Board is of the opinion that the applicant for registration does not have relevant practical experience in the profession include internship and practise in accordance with a supervised practice program (ss 51-58). 6 Section 111 of the Queensland Act contains the provisions for eligibility for specialist registration: '111 Eligibility (1) An applicant for specialist registration in a specialty is eligible for specialist registration in the specialty if - (a) the applicant is a general registrant; and (b) the applicant has - (i) an Australian or New Zealand qualification, in the specialty, that is prescribed, for the specialty, under a regulation; or (ii) a qualification, in the specialty, the board considers is substantially equivalent to, or based on similar competencies to that required for, a current qualification in the specialty. (2) Also, an applicant for specialist registration who is not qualified for general registration under section 44 is eligible for specialist registration in a specialty if - (a) the applicant is fit to practise the specialty; and (b) has a qualification in, and experience in the practice of, the specialty the board considers are sufficient as a basis for specialist registration in the specialty. (3) Without limiting subsections (1) and (2), the board may be satisfied the applicant is eligible for specialist registration in the specialty by imposing conditions on the registration under section 121(1). (4) For deciding under subsection (2)(a) whether the applicant is fit to practise the specialty, section 45 applies as if - (a) an applicant for general registration were an applicant for specialist registration; and (b) the profession were the specialty. (5) In making its decision under subsection (1)(b)(ii) or (2)(b),the board may have regard to the advice and recommendations of - (a) any relevant Australian specialist college or institution for the specialty; and (b) the Australian Medical Council. (6) In this section - "current qualification", in a specialty, means a qualification in the specialty mentioned in a regulation made under subsection(1)(b)(i), that may be conferred or awarded as a result of the successful completion of a course offered, at the date of the applicant's application for specialist registration, by the educational institution mentioned in relation to the qualification.' 7 Section 6 of Part 3 of the Medical Practitioners Registration Regulation 2002 provides with respect to the definition of 'specialty' in the Act: 'For the definition specialty in Schedule 3 of the Act, a branch of medicine mentioned in schedule 1, column 1, is a specialty'. 8 Schedule 1 lists a number of specialties. Examples are anaesthetics, cardiology, medical oncology and neurosurgery. They each have listed beside them qualifications in the nature of a fellowship of the College relevant to the specialty. 'Intensive Care' appears in Schedule 1 as a specialty carrying the 'restricted specialist title' of 'intensive care specialist' or 'intensivist'. The qualifications listed for the specialty (which I take to be alternatives) are a Fellowship of the Royal Australasian College of Physicians, a Fellowship of the Faculty of Intensive Care, Australian and New Zealand College of Anaesthetists, or a Fellowship of the Joint Faculty of Intensive Care Medicine, Australia and New Zealand College of Anaesthetists, Royal Australasian College of Physicians. 9 Section 121(1) of the Act provides that the Board may register a person as a specialist registrant in a specialty on conditions the Board considers necessary or desirable for the applicant to competently and safely practise the specialty. 10 Part 4, Division 1 of the Act creates offences with respect to the taking or holding out of titles associated with medical practitioners. Section 157 provides generally that a person who is not a registrant must not take or use a 'restricted title' and gives as an example that of 'medical practitioner'. Section 158 provides that a person who is not a specialist registrant or a provisional specialist registrant must not take or use a 'restricted specialist title' for the specialty. 11 In New South Wales, general registration as a medical practitioner, based upon qualifications and training, is governed by the requirements of s 4 of the Medical Practice Act. Section 4 provides as follows: '(1) A person is entitled to be registered as a medical practitioner if the person has recognised medical qualifications and has successfully completed a period of internship or supervised training as required by the Board. (2) A person has "recognised medical qualifications" if the person is a graduate of a Medical School (whether within or outside Australia) accredited by the Australian Medical Council or has successfully completed examinations held by that Council for the purposes of registration as a medical practitioner. (3) The entitlement under this section is an entitlement to general registration (that is, registration not subject to any condition).' 12 Conditions may be imposed upon registration: s 11. 13 Section 7 of the New South Wales Act provides for conditional registration at the discretion of the New South Wales Medical Board. Conditional registration may also be subject to any conditions the Board thinks appropriate. The provisions for conditional registration in the section include the following: 'E. A person may be registered if the Board is satisfied that he or she has specialist qualifications and experience in medicine recognised by the relevant Australian specialist college or institution and registration is for the purpose of enabling him or her to practise within that specialty. F. A person may be registered if the Board is satisfied that he or she has specialist qualifications and experience in medicine obtained outside Australia, being qualifications which are not recognised by the relevant Australian specialist college or institution, and registration is for the purpose of enabling him or her to undergo further specialist training or examination before being assessed for recognition by that college or institution.' 14 The New South Wales Act recognises the entitlement of a registered medical practitioner to practise medicine (s 99), which is defined to include 'surgery' in the dictionary to the Act. Section 105 prohibits a person advertising or holding themselves out as a medical practitioner if they are not registered under the Act. 15 The enactment of the Commonwealth Mutual Recognition Act followed a referral of power by New South Wales and Queensland in 1992. Other States and Territories subsequently referred power to the Commonwealth. The history of the legislation is discussed by French J in Board of Examiner's under the Mines Safety and Inspection Act 1994 (WA) v Lawrence [2000] FCA 900; 176 ALR 305 at [12] - [15]. The stated principal purpose of the Act, is 'the purpose of promoting a goal of freedom of movement of goods and service providers in a national market in Australia' (see s 3). So far as concerns the practice of professions or occupations in Australia the second reading speech (Australia, House of Representatives, Hansard No 15 1992 at p 2433) explained that: 'If someone is assessed to be good enough to practice a profession or occupation in one State or Territory, then they should be able to do so anywhere in Australia.' 16 Part 3 of the Mutual Recognition Act deals with occupations. Section 16 refers to the 'mutual recognition principle' as applying to occupations and with the ability of a person who is registered in connexion with an occupation in a State ('the first State') to carry on 'an equivalent occupation' in another State ('the second State'). The mutual recognition principle is set out in s 17(1): '(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation: (a) to be registered in the second State for the equivalent occupation; and (b) pending such registration, to carry on the equivalent occupation in the second State.' 17 The exception to the principle, stated in sub-s (2), is that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as the laws apply equally and are not based upon the need for qualifications or experience relating to fitness to carry on the occupation. 18 Section 20 of the Mutual Recognition Act provides that a person who lodges a written notice, in which they seek registration with a local registration authority of the second State, is entitled to be registered in the equivalent occupation 'as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration'. The local registration authority may impose conditions on registration, but not conditions that are: '…more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person's registration in the first State or that are necessary to achieve equivalence of occupations'. (s 20(5)) 19 Section 23(1)(c) provides that a local registration authority may refuse the grant of registration if it decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions. The Administrative Appeals Tribunal may also impose conditions that will achieve equivalence when it makes a declaration about a person's entitlement to registration: s 31(1). On the review it conducts the Tribunal may make a declaration that occupations carried on in two States are not equivalent but only if it is satisfied that the activities involved in the occupations are not substantially the same (even with the imposition of conditions) (sub-s (2)(a)), or for one of the reasons listed in paragraph (b) of sub-s (2)). 20 The definition section, s 4, provides that 'equivalent', when used in relation to occupations, has the meaning given by Division 4 of Part 3. 'Occupation' is defined to mean: '… an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted.' (emphasis added) 21 Section 28, in Division 4 of Part 3, provides that the equivalence of occupations carried on in different States is to be determined in accordance with the Part. Section 29 'General Principles' is in these terms: '(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions). (2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States. (3) This section has effect subject to any relevant declarations in force under this Division.'

the decision of the TRIBUNAL 22 In relation to s 99 of the New South Wales Act, the Tribunal was of the view that, whilst the Act's dictionary was silent as to what it meant when it said that a registered medical practitioner 'may practice medicine', it could be presumed that it includes other specialist disciplines as well as surgery, which it expressly mentions. It followed that a registered medical practitioner was authorised to provide intensive care services in New South Wales public and private hospitals under the terms of the general registration if they were appointed by that hospital to its staff. It appeared, from the evidence before the Tribunal, that a doctor ordinarily becomes recognised as a specialist intensivist in New South Wales when a hospital accredits him or her as such, most obviously by appointing them to the hospital staff with specialist privileges. The Tribunal said that a hospital would usually satisfy itself that the doctor had the appropriate qualifications, training, experience and character expected of doctors in those positions. In most cases the hospital would look for the same qualifications required under the Queensland Medical Practitioners Registration Regulations, in the case of intensivists, but there was some variation in appearance between different hospitals and area health authorities. There was evidence from one hospital that they would only hire intensivists who were members of the Joint Faculty, but in others this was not required. One explanation for the variation in approach was that some hospitals had difficulty in attracting intensivists. This applied especially to regional hospitals. In any event it found Dr Renton's appointment entitled him to work as an intensivist in New South Wales and that he was therefore likely to be able to hold himself out as such a specialist. 23 The Tribunal then turned to the question whether the occupations of medical practitioner in New South Wales and registered specialist in intensive care in Queensland were equivalent, which arose from s 29(1) of the Mutual Recognition Act. It did not consider that that determination involved a scientific process. Sande v Registrar of the Supreme Court of Queensland (1996) 134 ALR 560, 565 had held that the Commonwealth legislation should be applied in a practical common sense manner, regard being had to the substance of a matter and to the substantial equivalence of the occupation. It referred to the approach suggested in Rowe v NSW Police Service (1997) 47 ALD 442, 444 which required the identification of the occupation for which the person was registered and the activities authorised to be carried out under that registration followed by a comparison with the activities authorised under the registration which was sought. This approach had been endorsed in Board of Examiners v Lawrence at [68]. The Tribunal observed that in that case French J had emphasised that judgments about equivalence 'must be made by reference to the terms and statutory context of the registration in each State'. 24 The Tribunal again noted that the New South Wales Act authorised a person who is registered as a medical practitioner to practice medicine in New South Wales, and this included practice in specialist disciplines like intensive care. Whilst they may not be able to hold themselves out as a specialist, that was irrelevant to the test under s 29 of the Mutual Recognition Act, which focussed upon activities authorised under the applicant's registration, not upon title, it said. The Tribunal then reasoned: '45. If an individual is authorised under the terms of his or her registration in one state to carry out the same range of activities that another state divides between two registered occupations, I think the individual from the first state may be eligible to be registered in the second state in both of those occupations. To find otherwise would lead to a failure to apply the MRA 'in a practical, commonsense manner': Sande v Registrar of the Supreme Court of Queensland (1996) 134 ALR 560 at 565 per Davies J. 46. After comparing the relevant occupations in NSW and Queensland, I am satisfied a person in the applicant's position is eligible to apply for registration as an intensivist in Queensland. 47. I do not think the Board's concerns over the threat to the system of specialist registration in Queensland are justified. The Board retains the power to impose conditions on interstate practitioners where necessary: s 121 of the Medical Practitioners Registration Act 2001. The power to impose conditions should be exercised having regard to the facts of each case.' 25 The Tribunal went on to hold that, given his registration in New South Wales is a sufficient ground for registration in Queensland as an intensivist, Dr Renton should be registered unconditionally. The Tribunal did not share the concerns of the Medical Board as to the survival of the registration system and did not accept that Queensland had a closed system, which would not accommodate specialist medical practitioners from interstate seeking registration, when s 6 of the Medical Practitioners Registration Act expressly preserved the operation of the Mutual Recognition Act.

consideration of the appeal 26 Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355, 381 [69] - [71] confirms that the primary object of statutory construction is to construe a provision so that it is consistent with the language and purpose of the statute read as a whole. A statute should be read on the prima facie basis that its provisions are intended to give effect to harmonised goals. When certain provisions of two or more statutes are to be read together this approach would apply by analogy, in my view. If it were necessary in the present case, an approach which gave effect to the provisions of the Mutual Recognition Act and which did not detract from the scheme of the Queensland Act, is to be preferred. In my view, however, resort is not necessary to this principle of construction, for the reason that the provisions of the two Acts may be read conformably with each other. 27 As French J pointed out in Board of Examiners v Lawrence at [64] - [65], it is registration for an occupation in the State of original qualification that is the subject of recognition under the Mutual Recognition Act. The question which must be asked when a person invokes the provisions of that Actis - what is the occupation for which that person is registered in the first State? That question is to be answered by reference to the terms of the registration in the first State informed by, or read with, the statutory provisions under which registration is effected. The objective of mutual recognition is to allow the legal entitlement to carry on an occupation in one State to be recognised and the like legal entitlement for an equivalent occupation conferred in the second State. 28 The objective of the mutual recognition principle does not prevent a conclusion that there is no equivalent occupation, as French J recognises (at [67]). Sande v Registrar was a case in which there was no equivalent occupation in the second State. The applicant had been registered in South Australia as a conveyancer but the law of Queensland had ceased to recognise it as a profession, one for which registration could be obtained. In the present case it may be said that the registration of a medical practitioner in either New South Wales or Queensland would entitle a person to registration in that occupation in the other State. The question which here arises is whether the occupation the subject of registration under the New South Wales Actis equivalent to the profession of intensivist for which registration may be obtained under the Queensland Act. Equivalence is tested, pursuant to s 29(1), by determining whether the activities authorised to be carried out under each registration are substantially the same, or may be so with the imposition of conditions. That question is to be determined by reference to the terms and statutory context of the registration in each State, as French J observed (at [68]). 29 The approach of the Tribunal was to consider, in the first place, what was authorised by the New South Wales Act. It observed that s 99 of that Act authorises the practice of medicine and this was expressed to include surgery. It then reasoned that it may be taken to authorise other specialities. At another point the Tribunal observed that a person would not infringe the Act by carrying on the profession of intensivist in New South Wales under a general registration. If a person could undertake that work it could be said that the New South Wales Act authorises the same activities as the Queensland Act with respect to an intensivist. 30 There are a number of difficulties in the process of construction undertaken by the Tribunal, in my respectful view. Section 99 of the New South Wales Act may authorise the undertaking of surgery in conjunction with the practice of medicine, but it does not recognise surgery, or any other specialty, as a distinct occupation or profession for which registration may be granted. It may be seen from the provisions relating to conditional registration that it recognises that some persons may hold qualifications from specialist colleges or institutions as specialists, but it does not provide for their registration as such. No legal entitlement to carry on the profession of intensivist or other specialty is provided by the system of registration under the New South Wales Act. 31 The Tribunal's approach to the question of what activities the New South Wales Act authorises a medical practitioner to undertake is also attended with difficulty. It equates the authority following from registration in an occupation or a profession with activities which are not prohibited by the statute. Such an approach once again shifts the focus from the occupation and the registration of it. In my respectful view the requirements of equivalence of occupation under the Mutual Recognition Act are not met by considering whether a person may carry out in the first State activities associated with the profession for which registration is sought in the second State. The enquiry is as to whether the statute under which registration is granted in the first State itself authorises the activities of the profession in the second State. For the mutual recognition principle to operate, an affirmative answer is required. In the present case the answer must be negative. 32 Neither the New South Wales Act nor the Queensland Act list the activities associated with the professions in question. They must be taken to be the activities usually associated with the profession which is the subject of the registration. In some cases evidence may be necessary to identify those activities. It may be accepted for present purposes that there are activities undertaken by an intensivist which set that profession apart from the general practice of medicine. 33 The construction which I consider the Mutual Recognition Act requires has the effect that a person who is not registered as an intensivist in another State cannot achieve registration in that profession in Queensland. This may apply to other professions. Persons who may be carrying on the profession of intensivist elsewhere, but not registered under a statutory scheme which includes the registration of that specialist profession, would need to fulfil the requirements of the Queensland Act. I do not consider this result to be inconsistent with the objectives of mutual recognition. It follows from the requirement of equivalence of occupation the subject of registration. The mutual recognition principle has no operation where one State does not provide for the registration of an occupation or profession. The Mutual Recognition Act does however recognise, in the definition of 'occupation', that there may be registration granted for a specialty as a separate occupation or profession. Where State legislation does provide for registration of a specialty as a separate occupation the mutual recognition scheme may have operation. 34 Error is evident in the Tribunal's construction of the New South Wales Act and of the requirements of the Mutual Recognition Act. The appeal should be allowed and the decision of the Tribunal set aside. It sees to me that there can only be one outcome if the Tribunal were required to reconsider the matter. It may therefore be appropriate to make orders disposing of the matter finally: Statham v Federal Commissioner of Taxation (1988) 16 ALD 723, 725, by way of a declaration that the provisions of the Mutual Recognition Act 1992 (Cth) do not require, and Dr Renton is not entitled to, registration as a intensivist under the Medical Practitioners Registration Act 2001 (Qld). I will hear the parties as to whether such an order should be made or the matter be remitted to the Tribunal for determination according to law. So far as concerns costs, I do not see why costs should not follow the event of success and that Dr Renton be ordered to pay the Medical Board's costs of the appeal. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate: Dated: 27 July 2006 Counsel for the Applicant: Mr J S Logan SC