procedural. The Tribunal accepted the Board's refusal in relation to the Victorian orthodontist registration (no equivalent occupation in WA). Regarding the NSW dentist registration limited to orthodontics,...
Key principles
The equivalence inquiry under the Mutual Recognition Act (MRA) requires identification of the occupation for which the applicant is registered in the first State, informed by the...
Registration in Victoria as an 'orthodontist' was not a registration as a 'dentist'; when the terms of the Victorian registration and the Victorian statutory context are read...
A registration in New South Wales that is formally a registration 'as a dentist' but limited by conditions to the practice of orthodontics (certificate of registration dated 5...
Where a registration in the second State (here, NSW) is itself the result of mutual recognition of a registration in a different first State (here, Victoria), the Tribunal may...
Issues before the court
Whether registration in Victoria as an 'orthodontist' is an 'equivalent occupation' to registration as a 'dentist' in Western Australia for the...
Plain English Summary
The Tribunal decided that the applicant's Victorian registration as an 'orthodontist' is not an occupation that is equivalent to 'dentist' under Western Australian law, so that Victorian registration cannot be mutually recognised in WA. The applicant's New South Wales registration is formally 'as a dentist' but limited by condition to orthodontics; the Tribunal treated this as a dentist registration that could, on its face, be mutually recognised in WA with the same restricting conditions. However, because that NSW registration resulted from mutual recognition of the Victorian registration, the Tribunal raised the question whether it may examine (look behind) the NSW registration to see whether it was lawfully granted; the Tribunal did not decide that question and ordered directions for further written submissions limited to that point before making a final decision.
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Deep Dive
2,036 words · generated 24/08/2026
Whether the applicant's New South Wales registration as a 'dentist' limited by conditions to orthodontics is an 'equivalent occupation' to a WA...
Whether the Tribunal may 'look behind' an interstate registration that is the product of mutual recognition in the other State, to determine whether...
Cited legislation
8 cited instruments linked from this judgment.
What happened
Shabier Shaboodien was registered in Victoria as an orthodontist on 25 July 2007. He sought mutual recognition of that Victorian registration interstate. The chain of events relevant to the Tribunal's reasoning is:
25 July 2007: Victorian registration granted, title used was 'orthodontist' (Victorian registration under s 7 of the Health Professions Registration Act (Vic)).
11 September 2007: On application for mutual recognition to New South Wales, the applicant obtained a deemed registration in NSW as a dentist restricted to orthodontics.
5 October 2007: The NSW Dental Board issued an actual certificate of registration as a dentist, imposing conditions: 'Not registered to practice general dentistry; Registered to practice orthodontics' (the certificate of registration recorded entry into the register under the Mutual Recognition Act).
The applicant applied to the Dental Board of Western Australia under the Mutual Recognition (Western Australia) Act 2001 to have his Victorian and NSW registrations recognised in WA.
27 February 2008: The Dental Board of WA refused both applications. The Board's reasons were (a) there is no occupation in WA equivalent to 'orthodontist' as registered in Victoria and WA could not impose conditions to achieve equivalence; (b) the NSW registration, at the time of the application, was a deemed registration and, by reference to s 25(3) of the Commonwealth MRA, could not provide the basis for recognition until made actual; but the Board later acknowledged an actual NSW registration had been made on 5 October 2007 and maintained refusal on grounds that a dentist limited to orthodontics in NSW is not substantially the same as a WA dentist and equivalence could not be achieved under WA law.
The applicant sought review in the Administrative Appeals Tribunal. Before the Tribunal, the primary issues were (1) whether the Victorian 'orthodontist' registration was an occupation equivalent to 'dentist' in WA; (2) whether the NSW conditional 'dentist' registration was equivalent to a WA dentist and if WA could impose conditions; and (3) given the NSW registration resulted from mutual recognition of the Victorian registration, whether the Tribunal could 'look behind' the NSW registration and refuse recognition if the NSW Board had erred when granting it.
10 February 2009: Senior Member Penglis delivered Reasons and made directions for further written submissions limited to whether the Tribunal may look behind the NSW registration and, if so, what conclusions should be formed and whether recognition ought to be refused if the NSW registration was in error.
Why the court decided this way
The Tribunal's analysis applied the well-known approach to equivalence set out in Medical Board of Queensland v Renton (Kiefel J) and the Mutual Recognition Act provisions. The governing statutory approach is:
s 17(1) MRA: foundational mutual recognition principle, a person registered in the first State is entitled to be registered in the second State for the equivalent occupation;
s 29(1) MRA: occupations are equivalent if the activities authorised to be carried out under each registration are substantially the same (whether or not achieved by imposing conditions);
s 29(2) MRA: allows imposition of conditions 'so as to achieve equivalence between occupations in different States';
s 23(1)(c) MRA: local authority may refuse registration if the occupation sought is not equivalent and equivalence cannot be achieved by imposition of conditions.
Applying the Renton reasoning, the Tribunal undertook the two-step method Renton prescribes:
Identify the occupation for which the person is registered in the first State, by reference to the wording of the registration and the statutory regime that creates and defines registration in that State, not by reference to what activities may not be prohibited by statute in the first State (Renton [27]-[33] as adopted in the decision).
Test equivalence by asking whether the activities authorised under that first-State registration are substantially the same as those authorised by the second-State registration; if not substantially the same, consider whether conditions (s 29(2)) can be imposed to achieve equivalence.
On that basis, the Tribunal concluded:
The Victorian registration is a registration 'as an orthodontist', not 'as a dentist'. Reading the Victorian registration document in its statutory context showed the registration to be specifically for orthodontics and therefore not equivalent to WA 'dentist' registration; WA has no distinct statutory occupation of 'orthodontist' that the Board can grant as a form of registration equivalent to the Victorian registration. Therefore the Victorian registration could not be recognised in WA.
The NSW registration, by contrast, was formally entry on the NSW register 'as a dentist' (certificate dated 5 October 2007) but with conditions restricting practice to orthodontics. The Tribunal held that being registered 'as a dentist' remains registration as a dentist, even if the registration is constrained by conditions limiting practice to a subset (orthodontics). The conditional nature does not convert the occupation into 'orthodontics' for equivalence purposes.
Consequently, prima facie the NSW conditional registration could be mutually recognised in WA with identical conditions imposed under s 29(1)/(2) of the MRA.
However, the Tribunal then identified a further, unresolved legal question: the NSW registration itself was the product of mutual recognition of the Victorian registration. That raises the question whether a reviewing authority in a third State (WA) may look behind a first State's registration (here the NSW registration) to see whether the first-State registration was lawfully granted under the MRA and, if it was granted in error, whether that affects the availability of mutual recognition in the third State. The parties had not briefed this issue, so the Tribunal did not decide it on the papers and issued directions for limited further submissions.
Before and after state of the law
Before this decision (and as expressly applied), Renton established the key methodology for equivalence inquiries: identify the occupation by reference to the first-State registration and statutory scheme, then compare activities (s 29(1)) and consider imposition of conditions (s 29(2)). The Tribunal followed that approach closely.
This decision applies and clarifies two practical points within that framework:
It affirms that a specialist registration in State A (here, 'orthodontist' in Victoria) cannot be transposed into a broader registration in State B that only recognises the broader occupation (here, 'dentist') unless the second State has a statutory pathway to register the specialist occupation or equivalence can be achieved; the MRA does not operate where the second State does not provide for the registration of an occupation or profession as a distinct statutory category.
It confirms that a conditional registration in the first State that is formally a registration in the broader occupation (NSW registration 'as a dentist' subject to restriction) remains a registration in that broader occupation and may be mutually recognised with conditions, subject to the as-yet-undecided question whether tribunals may probe the lawfulness of that first-State registration if that registration itself was granted by mutual recognition.
The open question left by the Tribunal is consequential: whether a tribunal or registration authority in State C (WA) must accept at face value a first-State registration in State B that was itself created by mutual recognition of a State A registration, or whether State C can enquire into the lawfulness of State B's registration process. The Tribunal did not resolve that, instead inviting submissions.
Key passages with plain-English translation
Tribunal's statement of the MRA principle (quoted s 17(1)):
Plain English: If you are registered for a job in one State, you generally have the right under the MRA to be registered for the same job in another State, and to practise there while the registration in the second State is being processed.
FINDINGS that Victorian registration is as 'orthodontist' not 'dentist':
Plain English: The Victorian paperwork and statutory rules show the applicant was registered in Victoria specifically as an orthodontist, and WA law does not have a separate statutory role of 'orthodontist' that it can register. So WA cannot match that Victorian occupation for mutual-recognition purposes.
FINDINGS that NSW registration is as 'dentist' albeit limited to orthodontics:
Plain English: NSW put the applicant on the register 'as a dentist' but with a condition that he may only practise orthodontics. That does not change the kind of registration, he is still a dentist for MRA purposes, so WA could, in principle, recognise that NSW registration and impose the same practice-limiting conditions.
The Tribunal's question about looking behind the NSW registration:
Plain English: Because the NSW registration came about by recognising the Victorian registration, the Tribunal wondered if WA should accept the NSW registration at face value or whether it can check whether NSW was legally correct to grant that registration in the first place. The Tribunal asked the parties to make further submissions on that point.
What fact patterns trigger this precedent
A practitioner registered in State A for a speciality title that State B does not recognise as a separate statutory occupation (e.g., 'orthodontist' in a State that only registers 'dentist') will likely face refusal of mutual recognition for the specialist registration if the second State cannot register the specialist occupation or achieve equivalence by conditions.
A practitioner who obtains a first-State registration that is formally in the broader occupation (e.g., 'dentist') but constrained by conditions to a subset of practice (e.g., only orthodontics), particularly where that first-State registration itself arises from mutual recognition, raises the issue of whether a third State can and should accept the conditional first-State registration or whether it may enquire into its lawfulness.
Cases where a conditional registration in the first State results from mutual recognition of an original specialist registration elsewhere produce a risk that the third State will need to consider whether to 'look behind' the first-State registration.
How later courts have treated it
This decision applies Renton's analytical framework and cites AAT precedents such as Re Turner for the limits of using conditions to transform occupations. The Tribunal accepted that conditions can fine-tune equivalence (citing authorities) but differentiated the Victorian specialist registration and the NSW conditional dentist registration. The key open procedural question (permitting 'looking behind') invites further judicial or Tribunal consideration in later cases; the judgment itself deferred the resolution.
Practitioners should take from this that tribunals will adopt Renton's occupation-focused approach, will treat conditional registrations formally as registrations in the stated occupation, but will probe complex chains of mutual recognition where one registration derives from another by mutual recognition.
Still-open questions
May a tribunal or local registration authority 'look behind' an interstate registration that is the product of mutual recognition in another State to determine whether the other-State registration was lawfully granted and, if it was erroneous, refuse recognition on that basis? The Tribunal expressly left this unresolved and sought submissions.
If a tribunal may 'look behind', what standard of inquiry applies? Is it limited to clear error or jurisdictional error by the first-State authority, or can the second/third State re-examine merits?
Where a conditional registration in the first State is formalised as registration 'as X' with restricting conditions, does the power in s 29(2) MRA permit the second State to impose identical conditions even if its domestic registration statute does not themselves empower conditional registration in the particular form used by the first State? The Tribunal suggested prima facie that identical conditions could be imposed, but the respondent Board had argued it lacked power under WA law, the interplay merits further authoritative resolution.
How does the mutual recognition scheme interact with state-specific specialist regulation schemes where some States provide statutory recognition of specialties as separate occupations (e.g., when one State lists a specialty as an occupation and another does not)? Renton and this decision indicate mutual recognition does not operate where one State simply does not provide for the specialist occupation.
This decision is therefore helpful as an application of Renton in the dental/orthodontic context and as an indicator that conditional first-State registrations will be treated as registrations in the broader occupation, but it leaves significant procedural and conceptual questions undecided pending further submissions or subsequent authorities.
Disclaimer: This is general legal information only, not legal advice. I may be mistaken. Before you act on or rely on this analysis, get a qualified Australian lawyer to check it.
Judgment (72 paragraphs)
[1]
Shaboodien and Dental Board of Western Australia [2009] AATA 455 (10 February 2009)
1. Within 14 days the respondent do lodge with the Tribunal, and provide a copy to the applicant, its written submissions with respect to the Further Matters (as defined in the Tribunal's Reasons for Decision).
[4]
2. Within 14 days from his receipt of the respondent's submissions, the applicant do lodge with the Tribunal, and provide a copy to the respondent, his written submissions with respect to the Further Matters.
[5]
Mutual Recognition - whether applicant entitled to be granted registration in the occupation of orthodontist in Western Australia by reason of his registration as an orthodontist in Victoria, his deemed registration, by mutual recognition as a dentist (restricted to the practice of orthodontics) in New South Wales or by reason of his actual registration, by mutual recognition, as a dentist (subject to a condition that the applicant restricts his practice to orthodontics) in New South Wales - registration as "orthodontist" in Victoria not substantially equivalent to registration as "dentist" in Western Australia - registration as dentist (restricted to the practice of orthodontics) held substantially equivalent to registration as dentist in Western Australia (with imposition of an identical condition) - directions made by Tribunal as to provision of further submissions as to whether the Tribunal may look behind the New South Wales registration, if so what conclusions ought to be reached as to that registration and whether the Tribunal may and, if it may, ought refuse to mutually recognise the New South Wales registration if it were to conclude that the registration was granted in error
The applicant applied to have that registration mutually recognised in New South Wales, which resulted in:
(a) his deemed registration as a dentist (restricted to the practice of orthodontics) in New South Wales under the Dental Practice Act2001 ("the NSW Act") on 11 September 2007;
(b) his actual registration as a dentist in New South Wales under the NSW Act, subject to conditions that the applicant was "not registered to practice general dentistry" but was "registered to practice orthodontics", on 5 October 2007.
The applicant applied under the Mutual Recognition (Western Australia) Act2001 ("the MRA") to have his registration in Victoria (as an orthodontist) and in New South Wales (as a dentist restricted to the practice of orthodontics) mutually recognised.
By letter dated 27 February 2008, the respondent informed the applicant that his two applications had been refused and provided the following reasons:
[12]
"Your first application was for registration as an orthodontist in Western Australia by way of mutual recognition of your registration as an Orthodontist in Victoria. The Board has refused this application on the ground that there is no occupation under theDental Act 1939 (WA) in which the Board could register you which is equivalent to the occupation of orthodontist in which you are registered in Victoria, so as to satisfy the requirements of theMutual Recognition Act 1992 (Cth). Further, the Board has no power under neither theMutual Recognition Act 1992 (Cth) nor theDental Act 1939 (WA) to impose conditions on registration as a dentist in WA so as to confine your practice to orthodontics and, thereby, to achieve equivalence with the occupation in which you are registered in Victoria.
[13]
Your second application was for registration as a dentist in Western Australia by way of mutual recognition of your registration as a Dentist in New South Wales. The Board has refused this application on the ground that, at the time of your application, your registration in New South Wales as a Dentist was a deemed registration under theMutual Recognition Act 1992 (Cth) 1992 which, by virtue of section 25(3) of that Act, cannot provide the basis for registration by mutual recognition.
[14]
The Board notes that you have provided further information regarding your second application. You have advised that on 5 October 2007 the Dental Board of New South Wales granted your application for mutual recognition of your Victorian registration by registering you as a dentist subject to the condition that you confine your practice to orthodontics. Your registration as a Dentist in New South Wales, therefore, is no longer a deemed registration and an application for mutual recognition is no longer precluded by s 25(3) of the mutual Recognition Act 1992 (Cth).
[15]
Despite the additional information, the Board has decided that there is no occupation under theDental Act 1939 (WA) in which the Board could register you which is equivalent to the occupation in which you are registered in New South Wales, namely the occupation of a dentist limited by condition to the practice of orthodontics. Nor could the Board achieve equivalence by the imposition of conditions upon registration as a dentist in WA. As there is no equivalent occupation in WA, your second application also does not satisfy the requirements of theMutual Recognition Act 1992and the Board has determined to refuse the application."
[16]
That is the reviewable decision the subject of this application.
"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."
[19]
Section 23(1)(c) of the MRA relevantly provides as follows:
[20]
"(1) A local registration authority may refuse the grant of registration if:
[21]
(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions."
[22]
Section 29(1) of the MRA relevantly provides as follows:
[23]
"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)."
[24]
Section 29(2) of the MRA allows conditions to be imposed on registrations "so as to achieve equivalence between occupations in different States".
"Dentistry" is defined in s 4 of the Dental Act,1939 ("WA Act") as meaning and including:
[25]
"any operation on or service in connection with the human teeth or jaws, and the artificial restoration of lot or removed teeth, or jaws and the treatment of diseases or lesions, and the correction of malpositions in human teeth or jaws, and any operation, treatment, or service on or to any person as preparatory to or for the purpose of or in connection with the fitting, insertion, or fixing of artificial teeth, and also every dental service, act, or operation of any kind or nature whatsoever;
[26]
The term does not include the mechanical construction of artificial dentures by an artisan employed or engaged by a dentist.
[27]
The performance of a single operation, service, or act of dentistry shall be deemed to be practising dentistry;"
[28]
The WA Act contains no definition of "orthodontics".
Rule 23 of the Dental Board Rules 1973 (WA) ("WA Rules") provides for specialisation in a number of specialties, one of which is "orthodontics". Rule 23 relevantly provides as follows:
[29]
'(1) A dentist shall not refer to himself as an endodontist, oral surgeon, oral and maxillofacial surgeon, orthodontist, paediatric dentist, periodontist or prosthodontist unless he has applied for and obtained a certificate in a form approved by the Board authorising him to do so.
[30]
(i) For the purposes of this rule, the term "speciality" means any dental work in endodontics, oral surgery, oral and maxillofacial surgery, orthodontics, paediatric dentistry, periodontics or prosthodontics."
[31]
Each of the "specialities" are set out in the respondent's website. The definition of "orthodontics" is therein as follows:
[32]
"That part of dental practice which deals with the study and supervision of the growth and development of the dentition and its related anatomical structures including preventative and corrective procedures of dental irregularities requiring the re-positioning of teeth by functional or mechanical means.
[33]
May specialise in the diagnosis and correction of abnormalities in growth development and position of teeth and other dental-facial structures ...."
[34]
There is no definition of "dentistry" or "orthodontics" in the Victorian Act or the Health Professions Registration Regulations 2007 (Vic). However, there is some guidance as to the definition of "dentistry" in section 98(1) of the Victorian Act which states-
[35]
"(1) A person who is not registered as a dental care provider under this Act must not knowingly do any of the following-
[36]
(a) diagnose or manage conditions of the mouth of a person;
(b) perform any invasive or irreversible procedure on the natural teeth or the parts of a person's body associated with their natural teeth;
(c) provide artificial teeth or dental appliances to a patient or insert artificial teeth or dental appliances for a patient;
(d) make an intraoral adjustment of artificial teeth or dental appliances for a patient."
[37]
There is no definition of "dentistry" or "orthodontics" in the NSW Act or the Dental Practice Regulations 2004 (NSW).
[38]
THE PROPER CONSTRUCTION AND APPROACH AS TO THE REQUIREMENTS OF EQUIVALENCE OF OCCUPATION UNDER THE MUTUAL RECOGNITION ACT
[39]
I consider the proper construction and approach as to the requirements of equivalence of occupation under the MRA to be conveniently summarised by Kiefel J, then of the Federal Court of Australia, in Medical Board of Queensland v Renton[2006] FCA 947 as follows:
[40]
"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 Act is - 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.
[41]
28. The objective of the mutual recognition principle does not prevent a conclusion that there is no equivalent occupation, as French J recognises (at [76]). 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 the registration under the New South Wales Act is 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]).
[42]
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.
[43]
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 speciality, 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 speciality is provided by the system of registration under the New South Wales Act.
[44]
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 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.
[45]
32. Neither the New South Wales Act nor the Queensland Act list the activiti9es 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.
[46]
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 how recognise, in the definition of 'occupation', that there may be registration granted for a speciality as a separate occupation or profession. Where State legislation dose provide for registration of a speciality as a separate occupation the mutual recognition scheme may have operation.
[47]
With the consent of both parties, this matter was determined on the papers. The respondent's Statement of Facts and Contentions was dated 9 October 2008. The applicant's Statement of Facts and Contentions was not dated. The respondent filed a response to the applicant's Statement of Facts and Contentions by a document dated 2 December 2008.
In respect of the Victorian registration the essence of the respondent's submission was that, similar to Sander and Renton, while all the activities of orthodontics may be carried out by dentists in Western Australia, not all of the acts of "dentistry" under the WA Act may be carried out by "orthodontists". It was submitted that the fact that there were a large number of activities in addition to acts of orthodontics which a dentist might carry out meant that the two professions are not "substantially the same" so as to satisfy the requirements of the MRA.
In respect of the New South Wales registration, the respondent submitted that it is an essential feature of registration of the applicant as a "dentist" in New South Wales that it is limited by conditions to the practice of "orthodontics".
The applicant submitted that, on that basis, the occupation in which the applicant had been registered in New South Wales was not "dentistry" but rather "orthodontics", albeit that this has been achieved by way of the imposition of conditions on registration as a dentist. It was submitted that the occupation of a dentist limited to orthodontics in New South Wales is not "substantially the same" as the occupation of "dentist" in Western Australia.
It was further submitted on behalf of the respondent that the equivalence between two occupations cannot be achieved by the imposition of conditions on the applicant's registration in Western Australia as the respondent does not have power to impose such conditions either under the Western Australian Act or under s 29(2) of the MRA.
In his Statement of Facts and Contentions, the applicant did not take issue with, and indeed adopted much of, the respondent's Statement of Facts and Contentions. The applicant's contentions appeared to proceed on the basis that:
(a) he has worked on a full time basis as an orthodontist employed at the Oral Health Centre of WA, University of Western Australia, since 2006;
[48]
The respondent's position as an orthodontist at the Oral Health Centre of WA is as a result of temporary registration as a dentist under section 44A(1) of theDental Act 1939 (WA) (WA Act).
[49]
Pursuant to section 44A(2) of the WA Act, the Board has the power to grant the certificate of temporary registration 'subject to such limitations and restrictions upon the practice of dentistry by the applicant and to such other conditions as the Board in any particular case specifies in the certificate'.
[50]
The applicant's temporary registration is restricted to working at the Oral Health Centre of WA and he has no rights to private practice. This temporary registration is due to expire on 15 May 2009 (see paragraph 16 of the Respondent's Statement).
[51]
The applicant's temporary registration has no being on whether the applicant should permanently be registered as a dentist in WA under the WA Act or the MR Act.
[52]
The Respondent's Statement already covers the respondent's contention that the Dental Board of Western Australia does not have the power under the WA Act or the MR Act to register the applicant as a dentist and impose conditions to restrict his practice to orthodontics as the NSW Dental Board has done.
[53]
Rule 23 of the WA Rules provides for the WA Board to issue a certificate to a dentist (who is registered under the WA Act and whose name is entered in the Register) authorising the dentist to refer to himself as a specialist in one of the 7 areas of speciality, including orthodontics, recognised in the Rules.
[54]
Rule 23 of the WA Rules provides no additional power for the WA Board to register the applicant as a dentist when the applicant does not have the required qualifications under section 44 of the WA Act and impose conditions to restrict his practice to orthodontics only.
[55]
'Occupation' is defined in section 4 of the MR Act to mean -
[56]
"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."
[57]
The respondent submits that while the definition of 'occupation' refers to 'specialisation' this reference is to 'specialisation in any of the above in which registration may be granted'. The specialisation of 'orthodontist' in WA is not a specialisation in which registration may be granted". The WA Act only allows for registration as a dentist. The specialisation of 'orthodontist' in WA therefore falls outside of the scope of this definition of 'occupation' in the MR Act.
[58]
The mutual recognition principle is contained in section 17(1) of the MR Act and was previously stated in paragraph 33 of the Respondent's Statement. The mutual recognition principle does not require the WA Board to register the applicant as an orthodontist or dentist restricted to orthodontics in circumstances where there is no equivalent occupation in WA.
[59]
I accept the respondent's submissions with respect to the Victorian registration. The applicant's registration in Victoria is as of an orthodontist: not as of a dentist. Moreover, having regard to the terms of the registration in Victoria informed by, and read with, the statutory provisions under which registration is effected, and having regard to the provisions of the WA Act, I am satisfied that there is no equivalent occupation in Western Australia. Given that, in Victoria, the applicant's registration is not for the occupation of dentist, the issue of granting the applicant registration in Western Australia as a dentist, but imposing conditions limiting the registration to orthodontics, does not arise.
I turn then to the applicant's registrations (deemed and actual) as a dentist, restricted to the practice of orthodontics, in New South Wales. The respondent's submissions in this regard were as follows:
[60]
"It is an essential feature of the registration of the applicant as a 'dentist' in NSW that it is limited by conditions to the practice of orthodontics. The applicant submits therefore, on this basis, the occupation in which the applicant has been registered in NSW is not 'dentistry' but rather 'orthodontics', albeit that this has been achieved by way of the imposition of conditions on registration as a dentist. ... The occupation of dentist limited to orthodontics in NSW is not 'substantially the same' as the occupation of dentist in WA. Further, as set out in paragraph 62 above, the respondent does not have power to impose conditions upon the WA Act or under s29(2) of the MR Act which would achieve equivalence."
[61]
The respondent's submission in respect to the imposition of conditions was as follows:
[62]
In the AAT decision of Re Turner and Registrar, Supreme Court of Queensland and Others (No 2) [2003] AATA 887; (2003) 76 ALD 462, the Tribunal held that the use of section 29(2) of the MR Act power to impose conditions to achieve equivalence could not be used to make the occupation of conveyancer in NSW substantially similar to the occupation of solicitor in Queensland.
The Tribunal stated in this case that -
"To impose conditions on activities which a solicitor in Queensland may undertake in order to be substantially the same as those activities authorised under the Conveyancers Licensing Act (NSW) would be to render a conditionally registered person something other than what might be described as a solicitor."
The Tribunal further considered the intent of the Mutual Recognition legislation as expressed in the Act and elsewhere and commented -
"It is intended to ensure that persons carrying occupations the activities of which are equivalent or substantially the same should be enabled to obtain registration enabling the person to practise in another region or country. It was not intended to enable one occupation to be with or without the imposition of conditions translated into another occupation by avoiding the pre-requisites for admission by way of education, training and experience."
The AAT in the case of Re Renton and Medical Board of Queensland [2005] AATA 600; (2005) 87 ALD 364 at [29] commented on the exercise of the local registration authority's power to impose conditions -
"The power to impose conditions gives the registration authority in the second state the power to ensure an applicant is not able to do more than he or she would be able to do in the first state because of minor differences in the way an occupation is categorised in each state."
[63]
Contrary to the submissions made on behalf of the respondent I find that the occupation in which the applicant has been registered in New South Wales is dentistry. It is true that the registration is limited by conditions restricting the applicant to the practice of orthodontics. That, however, does not change the nature of the occupation for which the applicant has been registered in New South Wales. This is clear by the certificate of registration issued by the Dental Board of New South Wales dated 5 October 2007 which reads: "This is to certify the name of Shabier Ibrahim Shaboodien was entered into the register of dentists under the Mutual Recognition Act on the 8th day of August 2007".
The conditions noted are as follows:
[64]
"Not registered to practice general dentistry
Registered to practice orthodontics"
[65]
I do not accept the respondent's submission that the occupation for which the applicant is registered in New South Wales is "orthodontics". He is registered as a dentist. He can call himself a dentist. What he can't do is to practice all forms of dentistry, even general dentistry, and is limited to the practice of only one aspect of dentistry, namely orthodontics.
Prima facie, therefore, there appears to be no reason why the applicant's New South Wales registration as a dentist cannot be mutually recognised in Western Australia, with the same conditions as are imposed upon him in New South Wales being imposed upon him in Western Australia under s 29(1) of the MRA. The registration would therefore be identical in both States.
That, however, is not the end of the matter. The reason for that is because, as has been noted in these reasons, the registration as a "dentist" in New South Wales is as a result of the mutual recognition by the New South Wales Dental Board of the applicant's Victorian registration. A question therefore arises as to whether the applicant's registration as a "dentist" in New South Wales is a registration to which he was lawfully entitled under the Mutual Recognition Act in New South Wales. A further question which arises is whether I am nevertheless obliged to recognise the applicant's registration in New South Wales even if the New South Wales Dental Board erred in law in mutually recognising his Victorian registration in the manner which it did.
Am I entitled to go behind the New South Wales registration? If so, to what effect?
These are not issues upon which either party has made any submissions. Natural justice requires me to give both parties an opportunity to make submissions on those points. I therefore propose to make directions for the filing of further submissions before I finally dispose of this matter, unless I am otherwise able to dispose of the application on some other ground.
In this regard I refer to the fact that the papers disclose that, in addition to his registrations in New South Wales and Victoria, the applicant has also gained registration in Queensland. It appears that the applicant has applied to the respondent to mutually recognise that registration.
I note that the applicant has not sought to advance such a contention before the Tribunal. The respondent's submissions, having been filed before the applicant's submissions, dealt with the point in anticipation of the applicant advancing such a contention. As I have said, the applicant did not do so. The matter does not therefore arise for determination.
[66]
(a) whether I may look behind the New South Wales registration;
[67]
(b) if I may, what conclusions should I form as to that registration;
[68]
(c) may I and, if I may, ought I refuse to mutually recognise the New South Wales registration if I were to conclude that the registration was granted in error
[69]
I will therefore make the following directions:
Within 14 days the respondent do lodge with the Tribunal, and provide a copy to the applicant, in written submissions with respect to the Further Matters.
Within 14 days from his receipt of the respondent's submissions, the applicant do lodge with the Tribunal, and provide a copy to the respondent, his written submissions with respect to the Further Matters.
[70]
I will thereafter consider the written submissions and then provide the Tribunal's decision.
[71]
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member
[72]
Signed: ...(sgd) T Freeman.............................................
Legislation Cited (8)
Recognition Act 1992(Cth)
Professions Registration Act 2005
Board Rules 1973
Dental Practice Regulations 2004(NSW)
Recognition Act 1995(Cth)
Board of Examiners Under the Mines Safety and Inspection Act 1944(WA)
Recognition (Western Australia) Act 2001
Professions Registration Regulations 2007
Cases Cited (1)
(2000) 176 ALR 305
AI Analysis
Outcomeprocedural
Disposition:
The Tribunal accepted the Board's refusal in relation to the Victorian orthodontist registration (no equivalent occupation in WA). Regarding the NSW dentist registration limited to orthodontics, the Tribunal found prima facie it was a registration 'as a dentist' that could be mutually recognised with identical conditions, but did not finally decide whether it may look behind the NSW registration (which itself derived from mutual recognition of the Victorian registration). The Tribunal ordered directions for further written submissions limited to whether it may look behind the NSW registration, and if it may, what conclusions should be formed and whether recognition should be refused if the NSW registration was granted in error.
(b) the applicant's registration in New South Wales being as a dentist restricted to the practice of orthodontics;
(c) Rule 23 of the WA Rules which allows for specialisation in "orthodontics" ; and
(d) the purpose of the Mutual Recognition Act 1995 (Cth).
The respondent's responsive Statement of Facts and Contentions included the following:
French J made a similar comment in the Full Federal Court case of Board of Examiners Under the Mines Safety and Inspection Act 1944 (WA) v Lawrence [2000] FCA 900; (2000) 176 ALR 305 at [3] -
"Conditions may be imposed upon recognition in particular cases to fine-tune equivalence by limiting the range of activities which are authorised pursuant to that recognition."
For the sake of completeness, however, I note that, had the applicant sought to rely upon the Queensland registration, it would not have been a matter which this Tribunal could have considered as the reviewable decision did not concern the issue of the applicant's Queensland registration. Accordingly, the Tribunal would not have had jurisdiction to entertain any submissions which may have been advanced by the applicant in respect of that registration.
I further find that the fact that the applicant has held a full time position as an orthodontist employed at the Oral Health Centre of Western Australia, University of Western Australia, since 2006, does not compel a conclusion in favour of the applicant as that is as a result of a temporary registration as a dentist under section 44A(1) of the WA Act. Such registration does, however, reinforce my conclusion that subject to the issues which I have identified concerning the New South Wales registration, it is open to me to mutually recognise the applicant's registration as a dentist in New South Wales (but with the imposition of such conditions as are imposed on the New South Wales registration).
I therefore conclude that the proper disposition of this matter requires me to provide the parties an opportunity to provide further written submissions, limited to: