2001 was "substantially equivalent, or based on similar competencies" to a currently "approved qualification" under s 58(a) of the National Law - that is, a Doctor of Clinical Dentistry in Orthodontics from one of five Australian universities, in each case being a three year course.[9] 9. The Committee considered, first, that only Dr Taddei's 2001 Master of Science (Orthodontics) was a "qualification" for s 58(b); the Appeal Panel's grant of specialist registration on 20 January 2020 in the United Kingdom was not.[10] Secondly the Committee considered that s 58(b) requires only a comparison of orthodontic qualification(s); deficiencies in a qualification cannot be augmented by a practitioner's knowledge, skills and experience. 10. In the Tribunal's view, both of the Committee's conclusions regarding the construction of s 58(b) were correct. 11. Applying that construction of s 58(b), the Committee concluded that Dr Taddei's two year Master of Science (Orthodontics) qualification in 2001 was not "substantially equivalent, or based on similar competencies, to a three year "approved qualification". 12. The Tribunal agrees with this conclusion, in substance for the same reasons as given by the Committee. Accordingly specialist registration cannot be granted to Dr Taddei pursuant to s 58(b). 13. The Committee also rejected specialist registration by reference to s 57(2), as construed by the Queensland Court of Appeal in Chinese Medicine Board of Australia v Lee [2014] QCA 149, and subsequently applied by the Queensland Civil and Administrative Tribunal in George v Dental Board of Australia [2022] QCAT 5. 14. The Court of Appeal explained that in "an appropriate case"[11] registration pursuant to s 52(2) (and thus specialist registration pursuant to s 57(2), given common statutory language) may be granted "by" (as in "per force of") the imposition of conditions under s 83.[12] 15. In doing so the Committee relied on Ahpra advice that specialist registration was not possible under s 57(2), in substance because Dr Taddei's knowledge, skills and experience from working as an orthodontist for almost 20 years - including as a specialist orthodontist from 24 January 2020 under United Kingdom law - could not be considered under that provision. 16. In the Tribunal's view, this advice was incorrect. It reflects an unjustified construction of s 57(2) and its ambit which is unduly narrow and inflexible, and which is inconsistent with the Queensland Court of Appeal's exposition in Lee including as applied by the Queensland Tribunal in George. Accordingly the Committee's application of s 57(2)

to specialist registration for Dr Taddei was in error. 17. The hearing before the Tribunal occurred on 17 and 18 July 2024, and concerned only specialist registration pursuant to s 58(b) - not the alternative s 57(2) pathway. This was because Dr Taddei and his legal representatives were not then apprised of the s 57(2) pathway (as construed in Lee). They first became aware of the s 57(2) pathway and the Queensland Tribunal's decision in George about one week after the oral hearing. 18. This occurred in circumstances where, in the Tribunal's view, the Ahpra correspondence to Dr Taddei dated 22 November 2021 and 16 June 2022 was inadequate to respectively convey the Committee's "reasons" for proposing to reject, and for rejecting, specialist registration under the s 57(2) pathway. 19. By reference to the judicial exposition in Lee as applied in George, Dr Taddei's circumstances squarely raised the possible application of the s 57(2) pathway. It was thus incumbent on Ahpra to succinctly explain the basis whereby the Committee did not accept that that provision (as explained in those authorities) applied to Dr Taddei's circumstances. That did not occur. 20. On 2 August 2024 the Tribunal ordered that the parties provide written submissions about specialist registration pursuant to the s 57(2) pathway, which were received by 18 September 2024. It was not necessary, and was not suggested by any party, that a further oral hearing was required. 21. The Tribunal considers, on review, that the evidence comprehensively demonstrates that Dr Taddei should be registered as a specialist orthodontist via the s 57(2) pathway, specifically by the imposition of conditions under s 83 or the acceptance of an undertaking under s 83A. 22. The Tribunal accepts, adapting the language of the Appeal Panel of the General Dental Council (UK) in 2020, that (together with his 2001 qualification) Dr Taddei's "knowledge of and experience in orthodontics is equivalent to the knowledge and experience which he might reasonably be expected to have acquired if he had undertaken the training required" for a current Australian "approved qualification". 23. In forming that conclusion the Tribunal is satisfied that a grant of specialist registration to Dr Taddei pursuant to s 57(2) would fulfil the objects and guiding principles of the National Law, including that the "protection of the public" is of "paramount" importance. 24. Consequently the Tribunal considers that the correct, or preferable, decision is that specialist registration be granted to Dr Taddei on that basis.[13] 25. In Lee and George registration respectively occurred by imposition of conditions pursuant to s 52(2) and 57(2). Subsequently, in 2022, both provisions were amended to additionally provide that an applicant may be "eligible for registration" by the acceptance of an undertaking under s 83A (which was inserted in 2022). 26. In the Tribunal's view, applying the Queensland Court of Appeal's construction in

Lee, the 2022 amendment means that pursuant to s 57(2) specialist registration may also occur by acceptance of an undertaking from Dr Taddei under s 83A. 27. Dr Taddei's written submission identified three possible conditions to facilitate registration pursuant to s 57(2) (as well as mentioning the possibility of an accepted undertaking under s 83A), any of which were said to be sufficient for that purpose - whilst appreciating that ultimately this is a matter for the Tribunal. 28. The Board's written submissions did not address whether one or more of the conditions proposed by Dr Taddei would be appropriate to facilitate specialist registration, or whether other conditions or an accepted undertaking would more appropriately achieve that outcome. 29. This is because, throughout its consideration of Dr Taddei's application and including before the Tribunal, the Board has taken successive legal positions which deny that there is power under s 57(2) to facilitate specialist registration. 30. As detailed herein, the Tribunal does not accept those legal positions, and thus considers that there is ample power under s 57(2) (as construed in Lee, and applied in George) to grant specialist registration to Dr Taddei. 31. The Tribunal would be greatly assisted by the Board's advice, as supported and advised by Aphra, regarding appropriate imposed conditions or an accepted undertaking to facilitate specialist registration pursuant to s 57(2). 32. That advice should be formulated in accordance with the Tribunal's position explained herein as to the construction of s 57(2), and the appropriate exercise of that power in relation to specialist registration. 33. The Tribunal orders below that the requested advice be provided by the Board within 14 days of this decision, followed by a response from Dr Taddei within seven days of receipt of the Board's advice. 34. These are fairly short timelines, and the parties have liberty to apply to extend or vary them should the dates be unsuitable or inconvenient. 35. The orders also provide for submissions by the parties in relation to the question of costs.

1. Dr Taddei obtained a Bachelor of Dental Surgery from the University of Leeds in the United Kingdom in 1996 (having studied there from 1991). On 5 July 1996 Dr Taddei was registered to practice as a dentist in the United Kingdom.
2. Dr Taddei then worked as a general dental practitioner from October 1996 to September 1999 in Kalgoorlie (Western Australia), London (United Kingdom), and Malaysia.
3. On 1 November 2001 Dr Taddei was conferred a Master of Science in Orthodontics by the University College London, after completing two years of studies at the Eastman Dental Institute which is part of that College. Dr Taddei commenced this

postgraduate course in the latter part of 1999 (after September of that year).[14] 4. This two year Master of Science (Orthodontics) qualification did not of itself entitle Dr Taddei to specialist registration as an orthodontist in the United Kingdom. To facilitate that outcome, by a qualification pathway, it was necessary that Dr Taddei instead complete a three year Master of Science (Orthodontics) qualification - which was also offered by the Eastman Dental Institute, and thereafter pass a bi-collegiate Membership in Orthodontics (MOrth) examination conducted by the Royal College of Surgeons of England (Faculty of Dental Surgery) and the Royal College of Physicians and Surgeons of Glasgow (Dental Faculty). Completion of a three year Master of Science (Orthodontics) was a prerequisite to sitting the MOrth examination; a two year qualification was insufficient. 5. Dr Taddei opted for the two year Master of Science (Orthodontics) qualification, rather than a three year course, since he then planned to work in Malaysia where a two year qualification either satisfied specialist requirements (noting that it was accepted by the World Federation of Orthodontists) or at least was sufficient for his anticipated orthodontics practice.[15] Dr Taddei understood that it was not possible, during or at the end of the two year Master of Science qualification, to convert to the three year course. 6. Also on 1 November 2001, having changed his mind about working in Malaysia, Dr Taddei commenced employment as an "associate" with The Orthodontic Centre in Reading, a town in the County of Berkshire to the west of London in England - and worked in this orthodontic practice for the next 20 years until 2022 (including as a specialist orthodontist under United Kingdom law from 24 January 2020), providing "NHS and self-funded treatment for children and adults".[16] 7. Dr Taddei said that the Centre was a "specialist practice working in orthodontics 100 percent", without any "general dentistry" work at all.[17] Most, if not all, of the other practitioners working in the Centre were specialist orthodontists during his employment.[18] However, as in Australia, Dr Taddei's general dentistry qualification (from the University of Leeds in 1996) meant that he could work in any area of dentistry including orthodontics without being a registered specialist, but provided that he did not represent that he was a specialist orthodontist. 8. Dr Taddei said that he worked at the Centre solely "in the capacity of a specialist orthodontist" for over 20 years (being registered in that specialty from 24 January 2020),[19] and did so collaboratively with his specialist colleagues - which included "case based discussions" with his practice principals.[20] One of those practice principals was an "orthodontic specialty trainee supervisor" for many years, and the principals

continued "to entrust me with the care of the practice's patients"[21] and also other roles including "safeguarding" and assisting with "dental therapy training and specialist training"[22] - which Dr Taddei said demonstrated confidence in his orthodontic work. Consistent with that confidence, Dr Taddei said other specialists at the Centre often requested his assistance, and that former patients recommended him to other persons seeking orthodontic treatment (or had their children treated by him).[23] 9. A Certificate of Current Professional Status (Good Standing) dated 29 April 2021 from the General Dental Council (UK) recorded that since his initial registration as a dentist on 5 July 1996, and specialist orthodontist from 24 January 2020, "no suspensions have ever been applied to Mr Taddei's registration", and that there had been "no fitness to practice proceedings" against him.[24] 10. Dr Taddei said that much of the specialist orthodontic work at the Centre was publicly funded through the National Health Service of England (the NHS), and thus had a higher level of complexity - since, post 2005 regulations, "only complex cases could be treated under the NHS in practice",[25] noting that it was "overstretched".[26] Dr Taddei emphasised that the NHS is "highly regulated" - particularly as compared to Australia - whereby a practitioner must provide an initial orthodontic treatment plan including a score as to complexity followed by a statement of completion within a timeframe, together with random audits by the NHS and structured peer assessment (see below) which were directed at maintaining high standards.[27] 11. Dr Taddei accepted that these audits were not equivalent to "someone standing over my shoulder [and] telling me what to do" - as would occur for students in an educational institution (a point emphasised by the Board), but relied on his over 20 years of successful orthodontic treatment under this regulatory framework as demonstrating that he possessed the experience and skill to be properly registered as an orthodontic specialist in Australia.[28] Dr Taddei produced written references from his specialist colleagues which support this assessment. 12. On 30 April 2014, whilst working at The Orthodontic Centre in Reading, Dr Taddei was registered as a general dental practitioner in Australia under s 222 of the National Law. 13. On 20 July 2018 Dr Taddei applied to the General Dental Council of the United Kingdom for entry in its specialist list for orthodontics, that is for registration as a specialist orthodontist. Dr Taddei did so because of changed requirements, with future effect from around 2020, whereby NHS orthodontic treatment could thereafter only be performed by a registered orthodontist. If not on the specialist list Dr Taddei would only be able to "treat simple cases" or "treat patients privately" outside of the NHS.[29] 14. The regulatory pathway under which registration was sought applied to Dr Taddei because, due to having Italian nationality, he was an "exempt person". That pathway required that Dr Taddei demonstrate "knowledge of, and experience in, orthodontics ... derived from academic or research work ... equivalent to the knowledge and experience which he might reasonably be expected to have acquired if he had undertaken the training required for the award of a CCST [ie a Certificate of Completion of Specialist Training]".[30] In addition the General Dental Council was required to consider all of Dr Taddei's "dental qualifications, knowledge or experience, wherever acquired which are relevant".[31] 15. On 6 June 2019, after an adverse assessment by a panel and a consequent adverse recommendation by the Faculty of Dental Surgery of the Royal College of Surgeons of England, the General Dental Council rejected Dr Taddei's application for specialist registration. The General Dental Council's reasons for rejection, as per the panel's adverse assessment, included that Dr Taddei had completed only a two year Master of Science (Orthodontics) at the Eastman Dental Institute in 2001 - rather than a three year course, and had not completed the MOrth examination (for which he was ineligible since a three year course was a prerequisite). The General Dental Council accepted that the two year course contained "equivalent theoretical content" to the longer course, but said that the third year "provided supervised clinical experience".[32] 16. Dr Taddei's clinical "knowledge and experience" from (at that time) almost 20 years of treating patients at The Orthodontic Centre in Reading was otherwise considered insufficient to be "equivalent" to a Certificate of Completion of Specialist Training for a specialist orthodontist in the United Kingdom. The adverse assessment found that Dr Taddei's "caseload/case-mix" during his Master of Science course could not be reliably evaluated due to lack of evidence, in which respect clinical logbooks and course information was unavailable given the passage of time. Also, the nature of a "research project" conducted by Dr Taddei was said by the adverse assessment to be "unclear", and of no weight.[33] 17. On 3 July 2019 Dr Taddei lodged an appeal against the General Dental Council's adverse decision, and responded to its reasoning (as stated in the panel assessment) by providing additional documentation and an oral presentation at a hearing. 18. On 7 January 2020 an Appeal Panel of the General Dental Council upheld Dr Taddei's appeal, and directed that his name be entered into the specialist list in orthodontics for the United Kingdom. A certificate of specialist registration was issued on 24 January 2020.[34] 19. The Appeal Panel accepted that whilst "there was limited evidence of research and academia" (as per the regulatory language quoted above), there was "considerable evidence" of Dr Taddei's "knowledge and experience of orthodontics gained during his 18 years at the same specialist practice where the other practitioners are all specialists", with "supportive references" from colleagues including "two practice principals" with whom he worked during that period.[35] The Appeal Panel accepted that since regulatory change for the NHS in 2005 Dr Taddei had handled only "complex cases" at The Orthodontic Centre with "350 case starts annually". The Centre had "maintained Band A outcomes at over 80%" since 2005 (being a high standard), and Dr Taddei's "personal outcomes are at that level".[36] 20. In that respect the Peer Assessment Rating (PAR) for Dr Taddei and his specialist colleagues at the Centre was in evidence for the four year period from 2015/16 to 2018/19, in each case in relation to 20 patients. A conclusory column entitled "% change in PAR score" recorded respective annual mean outcomes for Dr Taddei as 82.98, 82.335, 87.035 and 86.99853659 (ie "over 80%"). These scores were comparable with Dr Taddei's specialist colleagues, who with one exception also had similar scores over 80 during that four year period (the exception being a colleague with a score of 78.985 for the 2016/17 year).[37] 21. The Appeal Panel accepted that a selection of case studies provided by Dr Taddei had been verified by an NHS assessor as part of random audit outcomes, with a Dental Reference Service Orthodontic Report commenting that Dr Taddei's "records were well presented and the patients have all been treated to a high standard".[38] The Appeal Panel accepted that Dr Taddei had engaged in continuing professional development "specific to orthodontics and changes in practice", and had "researched, designed and patented an orthodontic bracket". The Appeal Panel considered that Dr Taddei was a "credible witness" who "showed great attention to detail in his [oral] presentation".[39] 22. In conclusion, on the evidence as a whole, the Appeal Panel was satisfied that Dr Taddei's "knowledge of and experience in orthodontics is equivalent to the knowledge and experience which he might reasonably be expected to have acquired if he had undertaken the training required for the award of a CCST [ie a Certificate of Completion of Specialist Training]". This finding satisfied the regulatory requirement for

specialist registration in orthodontics in the United Kingdom.[40] 23. On 5 May 2021 Dr Taddei applied to the Board for specialist registration in orthodontics in Australia.[41] 24. Dr Taddei anticipated relocating to Australia to work in an orthodontic practice (and did so in 2022), in which respect his 2014 registration as a general dental practitioner in Australia meant that he could work in any area of dentistry including orthodontics[42] - since "work undertaken by dental specialists is considered part of the scope of the general dentist".[43] However, although Dr Taddei may represent that he is registered as a specialist orthodontist in the United Kingdom, he cannot represent that he is likewise registered under the National Law in Australia. Further, since Dr Taddei is not a registered specialist in Australia, his patients are not entitled to a rebate for certain service items through Medicare or a private health insurer, and orthodontic referrals to him may be inhibited.[44]

Committee's consideration of Dr Taddei's application

1. The Committee's consideration of Dr Taddei's application is discussed under the following subheadings, commencing with the legislative scheme as judicially construed, and an administrative assessment by Ahpra regulatory officers which informed the Committee's rejection of specialist registration.
2. The process for the administrative assessment is set out in an internal policy guide, and comprises initial consideration by an appointed Equivalence Assessment Panel, whose recommendation against registration was considered and accepted by the Committee on two occasions. In that respect the statutory process required the Committee, at first instance, to notify Dr Taddei of its proposed (adverse) decision and seek comment, after which the Committee met again and rejected specialist registration on 18 May 2022.[45]

1. The National Law commenced in 2010, with each Australian State and Territory passing nationally consistent legislation particularly for registration and standards - as recommended by the Productivity Commission in 2006 and agreed by the Council of Australian Governments later that year,[46] and formalised in an intergovernmental agreement in 2008.[47] Its principal objective is to "protect the public by establishing a national scheme for the regulation of health practitioners", particularly by establishing

a "national registration and accreditation scheme".[48] 2. Hitherto there were: "Eight separate regulatory systems" under "65 different pieces of legislation"; "85 health practitioner registration boards"; "38 regulatory organisations"; "Differences in conditions and types of registrations within and across professions"; and separate registration was required for practitioners to practise in different states or territories.[49] 3. The Board is one of 15 National Boards which are established as the "principal regulatory decision-makers for each registered health profession" (of which there are 16), particularly registration. In 2010 there were approximately 500,000 health practitioners registered under the National Law in 10 health professions. By 2022 there were over 800,000 registered health practitioners across 16 professions,[50] of whom "around 80%" were Australian trained.[51] The remainder had overseas qualifications, with a higher proportion for medical practitioners: "In 2020, around 18 per cent of Australia's registered nurses and around 32 per cent of medical practitioners were internationally trained".[52] 4. The Board is a body corporate, but does not have power to enter contracts, employ staff or acquire property.[53] In performing its functions the Board is supported by Ahpra which has those powers,[54] and does so pursuant to a "health profession agreement" between those entities.[55] Under that agreement Ahpra provides the Board with administrative services, policy development (including "procedures for the development of registration standards, codes, policies and guidelines"), and legal advice and representation (including "nationally consistent legal advice and management to support effective and lawful registration, notifications and compliance procedures, and hearing panels processes").[56] 5. Sections 3 and 3A of the National Law respectively set out its, object, objectives and guiding principles. The "object" of the National Law is "to establish a national registration and accreditation scheme" for the "regulation of health practitioners", and "registration of students" undertaking "programs of study that provide a qualification for registration in a health profession" or "clinical training in a health profession" (s 3(1)). 6. Pursuant to s 3(2) the "objectives of the national registration and accreditation scheme" include:

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

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

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

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

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

1. Section 3A relevantly provides the following guiding principles:

(1) The main guiding principle of the national registration and accreditation scheme is that the following are paramount -

(a) protection of the public;

(b) public confidence in the safety of services provided by registered health practitioners and students.

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

(a) the scheme is to operate in a transparent, accountable, efficient,

effective and fair way;

1. This "main guiding principle" (and other guiding principles) was inserted into the National Law by amendment in 2022.[57] The explanatory notes for this provision record that this principle "encourages a responsive, risk-based approach to regulation across all health professions within the National Scheme" and "also acknowledges the importance of community confidence in the health professions to achieving good health outcomes".[58]
2. Part 7 of the National Law is entitled "Registration of health practitioners". It comprises 12 Divisions (ss 52 to 137),[59] including "General registration" (Division 1, ss 52 to 56), "Specialist registration" (Division 2, ss 57 to 61), "Provisional registration" (Division 3, ss 62 to 64), "Limited registration" (Division 4, ss 65 to 72), and "Endorsement of registration" (Division 8, ss 94 to 106).
3. The provisions in Divisions 1 and 2 use common statutory language in relation to general and specialist registration (ss 52 to 53 and ss 57 to 58), with words and expressions of that common language thus having the same meaning including as construed by Courts in judgments (unless the context demonstrates otherwise).
4. The pathways and criteria for specialist registration are identified in ss 57 and 58 of the National Law (with common statutory language in ss 52 and 53 for general registration), as follows:

(1) An individual is eligible for specialist registration in a recognised specialty in a health profession if -

(a) the individual is qualified for registration in the specialty; and

(b) the individual has successfully completed -

(i) any period of supervised practice in the specialty 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 specialty; and

(c) the individual is a suitable person to hold 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 specialty; and

(e) the individual meets any other requirements for registration stated in

an approved registration standard for the specialty.

(2) Without limiting subsection (1), the National Board may decide the individual is eligible for registration in the recognised specialty by doing either or both of the following -

(a) imposing conditions on the registration under section 83;

(b) accepting an undertaking from the individual under section 83A.

An individual is qualified for specialist registration in a recognised specialty in a health profession if the individual -

(a) holds an approved qualification for the specialty; or

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

(c) holds a qualification, not referred to in paragraph (a) or (b), relevant to the specialty and has successfully completed an examination or other assessment required by the National Board for the purpose of registration in the specialty; or

(d) the individual -

(i) holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for specialist registration (however described) in the specialty; and

(ii) was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification for the specialty.

1. Some, but not all, of the statutory language used for specialist registration in ss 57 to 58 (and general registration in ss 52 to 53) is also used in Division 3 (Provisional registration), Division 4 (Limited registration) and Division 8 (Endorsement of registration) of Part 7. Several authorities concern that language in those provisions.[60]
2. The language of s 57(2) (and s 52(2)) about eligibility for registration "by" imposing conditions or accepting an undertaking is replicated for Divisions 3 and 4 (ss 62(2) and 65(2)), but the two limbs of s 58(b) (and s 53(b) viz "substantially equivalent, or based on similar competencies" to an "approved qualification") is not.
3. Division 8 of Part 7 is entitled "Endorsement of registration" (ie for scheduled

medicines, nurse practitioners, acupuncture, and approved areas of practice), which requires an "approved qualification", or "another qualification" that is "substantially equivalent, or based on similar competencies" (ie the same statutory language as for ss 58(b) (and s 53(b)). However Division 8 does not include provisions equivalent to ss 57(2) (and s 52(2)) about eligibility for registration "by" imposing conditions or accepting an undertaking. 4. Section 82 of the National Law is entitled "Decision about application", and identifies the decisions which the Board may make about an application for general or specialist registration, including Dr Taddei's application. Registration may be granted where an applicant is "eligible" by reference to the statutory criteria in a "relevant section" (s 82(1)(a) and (b)), or refused including where an applicant is not "qualified" for registration (s 82(1)(c)(i)(A)). 5. The statutory process has two steps. Where the Board after initial consideration proposes to reject registration (or impose conditions), it must give written notice and "reasons" to the applicant and invite a written or verbal submission about the proposal (s 81). If the Board after considering any submission decides to reject registration, it must give written notice to the applicant which states the "reasons for the decision" (s 84(2)(a)). 6. Section 83 of the National Law provides:

(1) If a National Board decides to register a person in a health profession for which the Board is established, the registration is subject to any condition the Board considers necessary or desirable in the circumstances.

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.

If a National Board decides to register a person in a health profession for which the Board is established, the Board may accept any undertaking from the person the Board considers necessary or desirable in the circumstances.

1. Section 83A was inserted by amendment in 2022, together with a related amendment to s 57(2) (and s 52(2) for general registration) about a National Board's acceptance of an undertaking under s 83A. Section 57(2) (and s 52(2)) was in a different form when Dr Taddei's application was rejected by the Committee on 18 May 2022.[61] At that

time s 57(2) (and s 52(2)) concerned eligibility for registration only in relation to the imposition of conditions under s 83 (ie not also in relation to the acceptance of an undertaking under s 83A). Authorities about the construction of s 57(2) (and s 52(2)) in its earlier form are discussed below. 2. Dr Taddei's application for review must be determined by reference to the legislative scheme as currently in force (ie including s 83A and the related amendment to s 57(2) (and s 52(2)), rather than the provisions which applied when the Committee rejected specialist registration on 18 May 2022.[62] 3. In summary, leaving aside grandparenting or transitional pathways and mutual recognition for New Zealand health practitioners (including specialists),[63] general registration (ss 52 and 53) and specialist registration (ss 57 and 58) principally occur where an individual is "qualified" due to possessing an "approved qualification" (ie for an orthodontist a three year Doctor of Clinical Dentistry in Orthodontics from one of five Australian universities) (ss 53(a) and 58(a)), or alternatively "another qualification" (eg from overseas) which is considered to be "substantially equivalent, or based on similar competencies, to an approved qualification" (ss 53(b) and 58(b)). 4. As far as the Tribunal is aware, and as the Board confirmed, there are no authorities which concisely discuss whether this expression in s 58(b) (and s 53(b)) disjunctively identifies two separate limbs (or tests), albeit overlapping, whereby an overseas practitioner's qualification is compared to an "approved qualification". The first limb is the expression "substantially equivalent"; the second limb is the expression "based on similar competencies". Published authorities principally focus on the first limb. An alternative construction is that the two limbs are a "compound phrase", rather than an expression containing two separate tests.[64] 5. In the Tribunal's view the use of the conjunction "or" and associated punctuation (ie the placement of two commas) in this expression means that s 58(b) (and s 53(b) for general registration) disjunctively identifies two separate limbs (or tests), albeit overlapping, whereby an overseas practitioner's qualification is compared to an "approved qualification".[65] In some cases the second limb conceivably may have separate work to do where the medical qualification some decades ago of an experienced overseas practitioner is arguably no longer "substantially equivalent" to a current "approved qualification" from an Australian university, given new medical treatments and knowledge which did not exist when the practitioner completed his or her studies. The practitioner's qualification some decades ago ordinarily would still be "based on similar competencies" to a current "approved qualification", meaning that the second limb of s 58(b) (or s 53(b) for general registration) would be satisfied. At least, the inclusion of the second limb removes any doubt that might arise in this circumstance.[66] 6. Pursuant to s 83, the registration (including specialist registration) of a practitioner may be subject to "any condition the Board considers necessary or desirable in the circumstances". For example supervisory or updated treatment/training conditions may be imposed where a practitioner returns from an extended period of non-practice, or to restrict a practitioner's scope of practice in Australia if his or her overseas practice was restricted (eg due to the scope of practice being narrower under the overseas legislative scheme, or because there were conditions on a practitioner's overseas registration).[67]

1. Dr Taddei's application was considered by reference to an internal policy guide entitled "Overseas-trained dental specialist registration assessments" (version 1.6, effective from 1 July 2016 as updated on 18 July 2017), which was prepared by Ahpra and used to assess applications (the Policy Guide).[68] Its object was to "guide decision making" by providing "policy advice to Ahpra, the Board, and its committees on what to consider when managing and deciding applications for dental specialist registration from overseas-trained dental specialists". The Policy Guide said that "relevant information" therein would "also be published on the Board's website".
2. The Policy Guide expressly referred to the judgment of Kyrou JA of the Supreme Court of Victoria in Pereira v of the Psychology Board of Australia [2014] VSC 417 as establishing (in Ahpra's words) the following meaning for the term "qualification" in s 58(b) for specialist registration (and its counterpart for general registration s 53(b)):[69]

Qualification does not include practical experience, unless this practical experience is formally assessed for the purpose of formal educational qualifications and potentially membership of recognised professional bodies.

Qualification, for the purpose of assessment under section 58 of the National Law for dental specialist registration, may include:

• formal educational qualifications such as obtained from a university, and
• membership of recognised professional bodies, such as a specialist academy or college when such recognition is obtained after a formal assessment.

1. Pereira concerned a psychologist's application for endorsement in clinical psychology under s 98(1)(a)(ii) of the National Law (Division 8, Subdivision 5) on the basis (inter alia) that her Master of Psychology (Counselling Psychology) from La Trobe University was "substantially equivalent to, or based on similar competencies to, an approved qualification". An endorsement meant that the psychologist could provide certain service items for Medicare, and hold herself out as a clinical psychologist.
2. The Psychology Board of Australia rejected the application, as did the Victorian Civil and Administrative Tribunal on review, but in doing so did not extend time so that the psychologist could be considered for registration under transitional provisions. The Supreme Court of Victoria (Kyrou JA) upheld an appeal on the basis that time should be extended, and also made observations about the meaning of the term "qualification" in s 98(1)(a)(ii).[70]
3. At [30] Kyrou JA identified the following possible meanings for the undefined term "qualification" in s 98(1)(a)(ii):

Depending on the context, the word 'qualification' is capable of at least three meanings. The first meaning encompasses only a formal educational qualification. The second meaning encompasses a formal educational qualification or membership of a recognised professional body. The third meaning encompasses a formal educational qualification, membership of a recognised professional body or practical skill and experience which is unconnected to such a qualification or membership.

1. At [35] his Honour explained a standard principle of construction that "[g]enerally, in the absence of indications to the contrary, where a word appears in an Act more than once - especially in the same section - it should be given a consistent interpretation", but that "inconsistency does not necessarily arise" if a word in a defined "composite term" is interpreted in accordance with its definition whilst "the word appearing on its own is interpreted in accordance with its natural meaning".
2. At [38] to [39] Kyrou JA concluded in favour of the second meaning for the term "qualification" in s 98(1)(a)(ii) of the National Law, that is "a course of study or membership based on formal assessment by a recognised educational or

professional body, rather than competencies gained merely from stand-alone practical experience". The latter could only be considered pursuant to that provision where it had been assessed as part of a "formal educational qualification or membership of a recognised professional body", where that assessment was "based on objective standards".[71] 3. Subsequently, in Arakkal v Medical Board of Australia [2017] WASCA 219 at [101] to [109], the Western Australian Court of Appeal explained that the term "qualification" as used in the "statutory context" of s 58(d) (a grandparenting provision) is not "limited only to qualifications obtained after a course of study". That paragraph concerns an individual who "holds a qualification ... that under ... a corresponding prior Act qualified the individual for specialist registration (however described) in the specialty", in circumstances where some prior legislation for registration in Australian jurisdictions "identified qualifications in terms that did not refer to the person having undertaken a course of study". In relation to the medical profession the Court cited such prior legislation in Western Australia, NSW, Queensland and Victoria. This was also the case in the Northern Territory, including for a dental specialist.[72] 4. The Western Australian Court of Appeal observed that these "practical consequences" did not appear to have been raised before Kyrou JA, and identified another "arguable construction" for the term "qualification" as used as part of a phrase in s 58(d) (which incorporated the use of that term in prior legislation), but did not find it necessary "in a comprehensive way" to resolve the construction of that phrase.[73] 5. The Tribunal accepts the meaning explained by Kyrou JA in Pereira for the term "qualification" as used in s 58(b), namely - as the Board submitted - that a "qualification" must be "some form of certificate or other credential attained through a direct assessment of "actual skill or competency" by an "examining body" (ie a recognised educational or professional body performing that role), as distinct from the consideration of "information" or "documents" provided by an applicant for registration"- as occurred before the Appeal Panel of the General Dental Council when granting specialist registration on 7 January 2020 in the United Kingdom.[74] 6. The Western Australian Court of Appeal's exposition of the term "qualification" in Arakkal may be distinguished from Pereira, since it concerns the use of that term in a different statutory context being the grandparenting provision in s 58(d). That provision does not apply to Dr Taddei's application. 7. This means for s 58(b) that the only "qualification" possessed by Dr Taddei is his two year Master of Science (Orthodontics) from the Eastman Institute in 2001. Dr Taddei's specialist registration as an orthodontist on 24 January 2020 in the United Kingdom is not a "qualification", because the Appeal Panel of the General Dental Council was not an "examining body" which itself conducted a formal assessment when granting registration (as does an educational institution when conferring a qualification). Likewise Dr Taddei's membership of the Orthodontic Specialists Group of the British Orthodontic Society, and fellowship of the World Federation of Orthodontics, are not a "qualification" for s 58(b). 8. The Policy Guide observed that overseas qualified practitioners seeking specialist registration ordinarily do not hold an (Australian) "approved qualification" under s 58(a) of the National Law - that is, a Doctor of Clinical Dentistry in Orthodontics from one of five Australian universities, in each case being a three year course.[75] This is the pathway ordinarily used by students who reside, and study, in Australia. As an overseas practitioner Dr Taddei does not hold such an "approved qualification", meaning that the pathway in s 58(a) does not apply. 9. Another pathway for specialist registration is s 58(c), whereby an overseas-qualified practitioner who does not satisfy any of the alternative pathways in s 58(a), (b) or (d) may complete "an examination or other assessment" required by the Board for registration in a specialty. There are 12 dental specialties, however the Board has not approved an examination or other assessment for the specialty of orthodontics.[76] Consequently, for Dr Taddei, the pathway in s 58(c) does not apply. 10. The pathway for specialist registration in s 58(d) also does not apply to Dr Taddei. In substance it is a grandparenting provision which concerns dental practitioners who were previously registered under the National Law or earlier corresponding legislation, on the basis of a qualification other than an "approved qualification" under s 58(a) or a qualification recognised under s 58(b). 11. Accordingly, insofar as the pathways identified in the four paragraphs of s 58 are concerned, the Policy Guide for overseas practitioners principally focuses upon s 58(b). It provides that an overseas practitioner is "qualified for specialist registration in a recognised specialty" if he or she holds a qualification which is "substantially equivalent, or based on similar competencies" to a currently "approved qualification" (ie a

Doctor of Clinical Dentistry in Orthodontics from one of five Australian universities, in each case being a three year course). 12. The Policy Guide identified six "qualification equivalence criteria" by which the criteria in s 58(b) are assessed by an appointed "equivalence assessment panel" for the assistance of the Board or a committee when determining a registration application. Criterion 2 requires that an overseas practitioner's "qualification is 3-4 equivalent full-time years" in duration as is the case for an "approved qualification" (ie a Doctor of Clinical Dentistry in Orthodontics from one of five Australian universities, in each case being a three year course).[77] 13. Where the qualification equivalence criteria are not met (in whole or in part) "registration must be refused, or, if suitable, approved with conditions", such as "supervised practice and/or further training".[78] 14. That is, where appropriate, deficiencies in an applicant's qualification may be addressed or (in the Policy Guide's words) "cured" by imposing conditions with resultant registration, while recognising that in other cases the "size and nature of the defect may be too significant to be addressed through supervised practice and/or further training", in which case registration should be refused.[79] 15. The Policy Guide required that an equivalence assessment panel "provide advice for consideration by the relevant committee of the Board" as to whether or not any "deficits" in a practitioner's qualification (as identified by the qualification equivalence criteria) "could be 'cured' with supervised practice and/or further education and training" (pursuant to conditions), and if so the "nature" of such supervision and/or education and training. Where deficiencies could not be addressed, the panel would recommend that the committee reject the application.[80] 16. This pathway, whereby the imposition of conditions under s 83 may address and resolve a deficiency in an applicant's qualification and fulfil registration, derives from the judgment of the Queensland Court of Appeal in Chinese Medicine Board of Australia v Lee [2014] QCA 149 (as discussed below), albeit that the Policy Guide does not identify that authority or explain the practical operation of the pathway.[81] 17. The omission of the Policy Guide to explain the legal basis and practical operation of this pathway is a significant deficiency, which apparently informed errors in documentation prepared for the Committee's consideration of Dr Taddei's application. 18. In Lee the Queensland Court of Appeal held that, pursuant to s 52(2), general registration as an acupuncturist could occur "by" (as in "per force of") the imposition of conditions under s 83, notwithstanding that the practitioner's "qualification" was not "substantially equivalent, or based on similar competencies, to an approved qualification" (s 53(b)).[82] The Court said that, by this means under s 52(2), "compliance with

s 52(1) can be achieved" - particularly that the acupuncturist was "qualified" for

general registration as required by s 52(1)(a) - since "eligibility can be achieved per force of the imposition of conditions" (under s 83).[83] 19. In that respect, at first instance and pursuant to s 52(2), the Queensland Civil and Administrative Tribunal applied the same construction of that provision, and imposed conditions on the annual registration which required a "newly qualified" practitioner to be supervised pursuant to an agreed plan, with quarterly reports and a final report on application for renewal of registration. Here it was the supervised practice imposed by the conditions which rectified "deficiencies" in the practitioner's "course and qualification", since he had only limited practical experience which did not rectify those deficiencies.[84] 20. However, plainly enough, a practitioner's knowledge, skills and experience is relevant to identifying an appropriate condition to be imposed when utilising the ss 52(2) (or 57(2)) pathway for registration. In that respect there was some variation in the conditions imposed for graduates in a similar position to Mr Lee.[85] The Queensland Court of Appeal's judgment in Lee is not authority for the contrary proposition. It is not the case that the pathway can only be used where it is an imposed condition which itself rectifies or "cure[s]" a deficiency in a qualification; the pathway can also facilitate registration where deficiencies in a qualification have been rectified by a practitioner's knowledge, skills and experience. Insofar as a narrow reading of the Policy Guide may suggest otherwise, it is the Tribunal's view that this is incorrect.[86] 21. This possible construction of ss 52(2) and 57(2) had been noted (in passing) in Alroe v Medical Board of Queensland [2010] QCA 44; (2011) 2 Qd R 200. This was an earlier judgment of the Queensland Court of Appeal (differently constituted) in relation to a similarly worded provision in the prior Queensland legislation for the registration of medical practitioners. The Court refrained from expressing a view about the construction of that provision, particularly since it was not the subject of considered submissions;

the issue of construction "resulted from questioning from the Bench".[87] 22. In so construing s 52(2) the Queensland Court of Appeal in Lee rejected a contrary construction which was earlier accepted in 2013 by two Tribunals in New South Wales and Victoria: McMahon v The Nursing and Midwifery Board of Australia [2013] NSWNMT 4 and Krause v Medical Board of Australia [2013] VCAT 1009.[88] These Tribunals considered that the opening words in s 52(2) (which are common to s 57(2)), viz "Without limiting subsection (1) ...", meant that a health practitioner could not be registered "by" (as in "per force of") the imposition of conditions, since this would be an unlawful "back door"[89] whereby the eligibility requirements of s 52(1) were "subvert[ed]".[90] Conditions could only be imposed where a practitioner was otherwise qualified for registration. 23. The Queensland Court of Appeal disagreed (as did the Queensland Civil and Administrative Tribunal at first instance).[91] It considered that the imposition of conditions pursuant to s 52(2) "provide a means by which compliance with s 52(1) can be achieved", and thus was not "a means of avoiding compliance with the requirements of s 52(1)".[92] Although not expressed in these terms, and by reference to High Court judgments about statutory interpretation, the Court of Appeal's reasoning involved "determining the hierarchy of provisions" in legislation (particularly subsections (1) and (2) in s 52)), and could be said to involve a "constructional choice" which, in the Court's view, "best gives effect"[93] to the object and objectives of the statutory scheme.[94] 24. Since common statutory language is used, the Queensland Court of Appeal's reasoning in Lee and construction of ss 52 and 53 for general registration must also apply to the construction of ss 57 and 58 for specialist registration. In that respect on 3 February 2022 the Court of Appeal's reasoning was applied to the latter provisions by the Queensland Civil and Administrative Tribunal in George v Dental Board of

Australia [2022] QCAT 5. Pursuant to s 57(2), a dental practitioner whose overseas qualification did not satisfy the criteria in s 58(b) was instead registered by the Queensland Tribunal as a specialist endodontist "by" (as in "per force of") the imposition of conditions under s 83.[95] In doing so the Queensland Tribunal reversed the Dental Board's refusal in 2019 to register the practitioner in the dental specialty of endodontics. 25. The practitioner, Dr George, was registered as a general dental practitioner in India in 1995 (having completed a Bachelor of Dental Science from the University of Mysore in 1994), and after completing a Master of Dental Science from the Rajiv Gandhi Health University in 1999 was registered as a specialist endodontist in India in that year. Thereafter Dr George practised as an endodontist in India and Kuwait until August 2001 when he took up an academic position in India. In 2006 Dr George commenced research for a doctorate at the University of Queensland Dental School (which he completed in 2009), and has worked as a lecturer at the Griffith University (and the University of Queensland) since 2008 - in due course as a Professor in its Dental School. Dr George lectured in endodontics at both undergraduate and postgraduate level, and since November 2008 was the "discipline lead in Endodontics at the Griffith University Dental School". In 2019 the Dental College of Australia approved a three year course of study for the degree of Doctor of Dental Studies at Griffith University as an "approved qualification" for registration as a specialist in endodontics, and Dr George was closely involved in setting up that course and was the Director of Studies for it. Dr George had also practised dentistry for the last 10 years in a separate private practice, mostly in the field of endodontics.[96] 26. This evidence squarely raised the possible application of the s 57(2) pathway (as construed in Lee), however the Dental Board rejected specialist registration on 9 March 2019 on the basis that Dr George's overseas qualification did not satisfy the criteria in s 58(b). The Queensland Tribunal's summary of the Dental Board's assessment of Dr George's application suggests that, as is also the case for Dr Taddei, the Dental Board's consideration of the s 57(2) pathway to facilitate specialist registration (to the extent that it occurred) was inadequate.[97] 27. On review the Queensland Tribunal granted specialist registration, pursuant to s 57(2), by imposing a condition that Dr George "remain at least as closely involved with the course for the degree of Doctor of Clinical Dentistry (Endodontics) at Griffith University as he was during the calendar year 2020, until the first student or students graduate with that degree on completion of that course" (ie at the end of 2022). The review period for the condition was 18 months (s 83(2)).[98] 28. In doing so the Queensland Tribunal accepted that Dr George's knowledge, skills and experience was relevant to identifying that condition and facilitating specialist registration pursuant to s 57(2). The Queensland Tribunal was satisfied that Dr George was "thoroughly familiar with the subject" of endodontics (both from academic work since 2008 and private practice for the previous 10 years), and that registration would not be "in any way contrary to the objective of furthering the health and safety of the public".[99] 29. As an inferior court in the Queensland judicial system, the Queensland Tribunal in George considered that it was bound by the Queensland Court of Appeal's judgment in Lee (as did that Tribunal in two earlier decisions).[100] Tribunals in other Australian jurisdictions, including the Northern Territory, are not bound (since not part of that judicial hierarchy), but nonetheless are required to apply Lee because it is an "intermediate appellate court" judgment from another Australian jurisdiction about the interpretation of "uniform national legislation" (ie the National Law) - unless "convinced" that the interpretation is "plainly wrong".[101] 30. The NSW Civil and Administrative Tribunal has considered Lee on several occasions, and whilst differing views have been identified it has not concluded that the statutory construction in Lee is "plainly wrong".[102] 31. The most recent NSW Tribunal decision is Nowlan v Medical Board of Australia [2022] NSWCATOD 112. It was delivered on 6 October 2022, that is after the delivery of the Queensland Tribunal's decision in George on 3 February 2022 (which was not appealed).[103] Mr Nowlan was excluded from enrolment to complete degrees of

Bachelor of Medicine/Bachelor of Surgery (being an "approved qualification" for

general registration as a medical practitioner) due to continued unsatisfactory academic progress, and sought provisional registration under s 62(2) on conditions that he undertake and pass exams in outstanding subjects. Sections 52(2) and 62(2) use common statutory language for general registration and provisional registration. An earlier attempt by Mr Nowlan to obtain provisional registration was rejected by the Queensland Tribunal in 2020, which considered it was bound by Lee (since that Tribunal is part of the Queensland judicial hierarchy).[104] 32. In Nowlan the Medical Board submitted that the Queensland Court of Appeal's reasoning in Lee about registration "by" (as in "per force of") conditions pursuant to s 52(2) was obiter dicta (and thus not binding),[105] and also that the statutory construction of this provision was wrongly decided by the Court.[106] The NSW Tribunal considered that there "would appear to be force" and "merit" in the Medical Board's submission about statutory construction, but did not express a decided position and did not conclude the Court's reasoning in Lee was "plainly wrong". Instead, like the Queensland Tribunal in 2020 for Mr Nowlan's first provisional registration application, the NSW Tribunal did not apply the pathway identified in Lee to provisionally register Mr Nowlan "by" (as in "per force of") the imposition of conditions (ie pursuant to s 62(2), given common statutory language to s 52(2)) - since the circumstances "militate[d] convincingly" against doing so.[107] 33. Having considered the above authorities (including as footnoted) the Tribunal is not satisfied or "convinced" that the Queensland Court of Appeal's judgment and statutory construction in Lee is "plainly wrong". Nor did the Board so submit, although (as discussed below) it sought to narrow the ambit of the s 57(2) specialist registration power to facts such as pertained in George.[108] 34. Accordingly the reasoning and statutory construction identified by the Court in Lee

for ss 52 and 53 - which applies to ss 57 and 58 given common language, must be applied regarding Dr Taddei's application. 35. Two observations are pertinent. First, whilst the regulatory pathway used by Dr Taddei for specialist registration in the United Kingdom does not identically exist under the National Law in Australia, the s 57(2) pathway construed by the Queensland Court of Appeal in Lee (and applied in George) achieves substantially the same outcome. Both pathways enable specialist registration by reference to a practitioner's knowledge, skills and experience where his or her qualification is deficient (ie as compared to an Australian "approved qualification"). 36. Secondly, as explained in Lee, the power to grant general (or specialist) registration in s 52(2) (or s 57(2)) is not "limited to any particular set of circumstances, much less extraordinary circumstances". However the 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.[109] 37. In short, as the NSW Civil and Administrative Tribunal accepted when considering Lee in Wu v Nursing and Midwifery Board of Australia [2021] NSWCATOD 183, the power may be exercised "in an appropriate case".[110] The authorities cited herein confirm that registration "by" (as in "per force of") the imposition of conditions (pursuant to s 52(2) or s 57(2)) requires compelling evidence, which must be assessed by reference to both the "main guiding principle" that the "protection of the public" and "public confidence in the safety of services provided by health practitioners" is "paramount", and also by reference to other statutory objectives and guiding principles. 38. Accordingly, as discussed below, the Board's submission that the Queensland Tribunal's decision in George is distinguishable on its facts since "limited to [its] particular set of circumstances" must be rejected, since it does not accord with the Queensland Court of Appeal's exposition of the statutory scheme in Lee that the power in s 52(2) (or s 57(2)) is not "limited to any particular set of circumstances, much less extraordinary circumstances".

Initial correspondence between the Board and Dr Taddei

1. On 5 May 2021 Dr Taddei applied to the Board for specialist registration in orthodontics in Australia.[111]
2. By letter dated 2 June 2021 an Ahpra regulatory officer notified Dr Taddei under s 80(1)(b) of the National Law that further information/documentation was required, particularly "specialist program material" and evidence of "clinical experience"

relating to his 2001 Master of Science (Orthodontics) qualification. It would be

assessed by reference to qualification equivalence criteria (with a website link provided), specifically six criteria which must be met to establish that a qualification (particularly from overseas) is "substantially equivalent, or based on similar competencies" to a currently "approved qualification" (as per s 58(b)).[112] 3. The Ahpra letter emphasised that it was "unlikely" that Dr Taddei's 2001 Master of Science (Orthodontics) qualification would be considered "substantially equivalent" to an "approved qualification", since it was completed "over a two-year period between 1999 and 2001". To be considered "substantially equivalent, the Board requires the duration of the qualification to be three to four equivalent full-time years" (bold in original).[113] 4. The Aphra letter did not mention that, notwithstanding this deficiency in Dr Taddei's 2001 qualification, and where "appropriate", consideration could be given under s 57(2) (as construed in Lee) to granting specialist registration "by" (as in "per force of") the imposition of conditions under s 83.[114] Whether or not to do so necessarily required consideration of Dr Taddei's knowledge, skills and experience from working as an orthodontist for almost 20 years - including as a specialist orthodontist from 24 January 2020 under United Kingdom law. 5. By letter dated 18 July 2021 Dr Taddei provided a detailed response to Ahpra's request for further information/documentation. He provided, inter alia, copies of the extensive documentation previously provided to the General Dental Council and its Appeal Panel, including his completion of courses and continuing professional development to ensure that he was apprised of new developments in orthodontics.[115] 6. At the hearing before the Tribunal Dr Taddei emphasised that continuing professional development was imperative, because "in dentistry, everything's constantly changing, everything's improving" with the use of artificial intelligence "very prominent these days". Dr Taddei continued:[116]

There's no way that you can go through - for me, qualifying in 2001, not doing continuing professional development to be able to keep up with the progresses of the profession. So actually I have met my CPD requirements every year, and continue to do so and will continue to do so.

1. Dr Taddei emphasised in his response to Ahpra that he relied not only on his 2001 Master of Science (Orthodontics) qualification but also on his "theoretical knowledge, clinical experience and record in orthodontics, acquired since my training began in 1999".[117]
2. That is, Dr Taddei expressly sought that the Board consider his knowledge, skills

and experience from working in the capacity of an orthodontist for almost 20 years - including as a specialist orthodontist from 24 January 2020 under United Kingdom law. Pursuant to s 57(2) these are matters which may be considered in relation to registration "by" (as in "per force of") the imposition of conditions under s 83, albeit that they are not considered for the "qualification" pathway for registration in s 58(b).

1. On 7 October 2021 an Equivalence Assessment Panel of the Board met by videoconference to consider Dr Taddei's application. The Panel comprised two specialist orthodontists, and a specialist in oral pathology. Two Ahpra regulatory staff attended, having prepared an agenda paper for the Panel's consideration. The agenda paper confirmed that Dr Taddei had been advised that his two-year Master of Science (Orthodontics) qualification in 2001 was not "substantially equivalent" to a three year "approved qualification", as required for the registration pathway in s 58(b).[118]
2. The opening page of the agenda paper said that the Panel must assess which of three recommendations (enumerated A, B and C) were the "most appropriate", the first being that Dr Taddei's 2001 Master of Science (Orthodontics) Qualification complied with s 58(b), and the third being that it did not. Detailed reasons were provided which demonstrated non-compliance with that provision, and Pereira was appropriately cited as an authority for the meaning of the term "qualification" in s 58(b).[119]
3. The second recommendation (Recommendation B) concerned the s 57(2) pathway (albeit that that provision was not specified), and was as follows:[120]

The applicant does not hold qualifications in accordance with section 58 of the National Law, but he may be eligible for registration in the recognised specialty by imposing the following conditions, in accordance with section 83 of the National Law:

1. Condition 1...
2. Condition 2...
3. Etc...
4. In relation to Recommendation B, as part of assessing which of the three recommendations was "most appropriate", the Panel was asked to consider whether the deficiencies in Dr Taddei's qualification "can", or "cannot", be "remedied by the imposition of conditions in accordance with section 83 of the National Law".[121]
5. However the agenda paper did not include any reasons, or advice, to assist the Panel in reaching a conclusion on this issue. This was the case despite the provision of such advice being contemplated by the Policy Guide.
6. Specifically, by reference to the wording of the Policy Guide, there was no advice (with reasoning): (i) as to the "nature" of conditions for "supervised practice and/or further education and training" to address deficiencies and facilitate specialist registration;

or alternatively (ii) that the deficiencies could not be addressed such that Dr Taddei's application should be rejected, and a recommendation made to that effect to the Committee. 7. Also, there was no reference to the Queensland Court of Appeal's judgment in Lee (or subsequent authorities), particularly its construction of s 52(2) (and also s 57(2)) as a pathway for general (and specialist) registration by reference to a practitioner's knowledge, skills and experience where his or her qualification is deficient (ie as compared to an Australian "approved qualification"). 8. This appreciation of the basis, and operation, of Recommendation B (as explained in Lee), and the fact that (however briefly) it identified the s 57(2) pathway as an option for consideration, was substantially undermined by subsequent advice in the agenda paper which compared the pathways available for specialist orthodontics registration in the United Kingdom and Australia, as follows (underlining in original):[122]

The GDC (Specialist List) Regulations 2008 provide for an individual to be entered on a specialist list if they can demonstrate that they have knowledge and experience derived from academic or research work in the specialty in question, and satisfy the Council that this knowledge and experience is equivalent to the knowledge and experience which the dental [practitioner] might reasonably be expected to have acquired if the dentist had undertaken the training required for the award of a CCST in that specialty. The GDCs website states that it is not essential to have completed a specific specialist training program or qualification. This pathway to specialist registration does not exist in Australia.

1. In the Tribunal's view the underlined advice is misleading and, in substance, is incorrect.
2. Whilst the regulatory pathway used by Dr Taddei for specialist registration in the United Kingdom does not identically exist under the National Law in Australia, the s 57(2) pathway construed by the Queensland Court of Appeal in Lee achieves substantially the same outcome. Both pathways enable specialist registration by reference to a practitioner's knowledge, skills and experience where his or her qualification is deficient.[123] The underlined advice incorrectly says otherwise. It does not accord with the Court of Appeal's exposition in Lee.
3. The Equivalence Assessment Panel recommended that the Committee reject Dr Taddei's application on two bases, first, that his two year Master of Science (Orthodontics) "qualification does not satisfy section 58 of the National Law" (particularly subsection (b)), and secondly, that "the deficiencies identified cannot be remedied by the imposition of conditions" (ie apparently by reference to the s 57(2) pathway identified in Lee, albeit that that provision and authority was not identified).[124]
4. For the qualification pathway in s 58(b) the record of the Panel's discussion includes detailed reasons as to its conclusion, and recommendation, that Dr Taddei's application did not satisfy that provision. In summary the two year duration of Dr Taddei's

Master of Science (Orthodontics) in 2001 was insufficient to impart a "volume of learning" which equates to "3-4 equivalent full-time years" of supervised postgraduate orthodontics study. In turn, by reference to the qualification equivalence criteria, the didactic and clinical components of the 2001 Master of Science were not "substantially equivalent or based on similar competencies to a Board-approved specialist program" (being the s 58(b) criteria). However the Panel accepted that the "research components" of that qualification were "substantially equivalent, or based on similar competencies to, a Board-approved specialist program".[125] 5. However, for the s 57(2) pathway identified in Lee, the record of the Panel's discussion does not include any reasons as to the basis whereby it was concluded, and recommended to the Committee, that the deficiencies in the 2001 qualification could not be remedied or "cured" by the imposition of conditions pursuant to s 57(2) (as per Recommendation B).[126]

1. The Committee first considered the Panel's recommendation at a videoconference meeting on 17 November 2021. The six person Committee comprised three specialist dentists (in periodontics, oral health therapy, and paediatric dentistry - but not in orthodontics), a general dentist, and two community members. Six Ahpra regulatory staff attended, having prepared an agenda paper for the Committee's consideration.[127]
2. The agenda paper for the meeting was in substantially the same form as that prepared for the Equivalence Assessment Panel (which was part of the Committee's supplied documentation), but with the option of registration by imposition of conditions via Recommendation B omitted - presumably because it was rejected by the Panel.[128]
3. The agenda paper recommended that, at first instance, the Committee propose to refuse Dr Taddei's application for specialist registration on the same bases identified by the Panel vis-à-vis non-compliance with s 58(b) (as summarised above).
4. The first basis was that Dr Taddei's two year Master of Science (Orthodontics) qualification (and any other claimed qualification) did not satisfy s 58 (particularly subsection (b)).
5. The second basis concerned the s 57(2) pathway. The agenda paper recorded that the Equivalence Assessment Panel's role included to advise whether deficiencies in an applicant's qualification may be addressed or "cured" by imposing conditions with resultant registration,[129] and stated:[130]

The deficits in the applicant's qualification are too significant to be addressed through the imposition of conditions and so they are not eligible for specialist registration under section 57(2) of the National Law.

1. This bare statement was accepted by the Committee as identifying the basis for

rejecting Dr Taddei's application, being replicated in the record of the Committee's "Decisions and Actions" on 17 November 2021.[131] The same bare statement (using substantially the same words) was also expressed in Ahpra correspondence to Dr Taddei to explain the rejection of his application, and is discussed below. 2. The agenda paper also included the same advice extracted above (at [144]), about Dr Taddei's registration as a specialist orthodontist in the United Kingdom, including the underlined advice that:[132]

The GDC (Specialist List) Regulations 2008 provide for an individual to be entered on a specialist list if they can demonstrate that they have knowledge and experience derived from academic or research work in the specialty in question, and satisfy the Council that this knowledge and experience is equivalent to the knowledge and experience which the dental [practitioner] might reasonably be expected to have acquired if the dentist had undertaken the training required for the award of a CCST in that specialty. The GDCs website states that it is not essential to have completed a specific specialist training program or qualification. This pathway to specialist registration does not exist in Australia.

1. Again, in the Tribunal's view the underlined advice is misleading and, in substance, is incorrect. It does not accord with the Queensland Court of Appeal's exposition in Lee. As in the United Kingdom (ie for the regulatory pathway used by Dr Taddei), s 57(2) enables specialist registration by reference to a practitioner's knowledge, skills and experience where his or her qualification is deficient.[133]
2. There was no reference in the agenda paper to the Queensland Court of Appeal's judgment in Lee, or subsequent authorities by Australian Tribunals which have considered it. As of the Committee's meeting on 17 November 2021, the most recent subsequent authority was Wu v Nursing and Midwifery Board of Australia [2021] NSWCATOD 183 - which was decided two days earlier on 15 November 2021. In Wu the NSW Civil and Administrative Tribunal accepted that the registration pathway identified in Lee may be exercised "in an appropriate case", but did not do so on the facts of that matter.[134]
3. Although not stated in the record of the Committee's "Decisions and Actions" on 17 November 2021,[135] it is plain that the Committee accepted the agenda paper's advice that a comparable "pathway to specialist registration", as exists in the United Kingdom, "does not exist in Australia". This advice thus formed part of the Committee's reasoning.
4. By letter dated 22 November 2021 an Ahpra regulatory officer notified Dr Taddei that the Committee proposed to reject his application for specialist registration due to non-compliance with the requirements of s 58(a) to (d) of the National Law, but in accordance with the process in s 81(2) invited him to make a "written or verbal submission"

about the proposal. 5. The Ahpra letter detailed the Committee's reasons which, in relation to the qualification pathway in s 58(b), accorded with the advice set out above from the Equivalence Assessment Panel. This part of the Committee's reasons complied with s 81(2)(a), which required that it "state the reasons" for the proposed rejection of specialist registration. 6. In relation to registration "by" (as "in per force of") conditions pursuant to s 57(2), the letter advised (using substantially the same words as the bare statement extracted above from the agenda paper):[136]

The deficits in your qualification are too significant to be addressed through the imposition of conditions and so you are not eligible for specialist registration under section 57(2) of the National Law.

1. In the circumstances of this matter - which squarely raised the possible application of the s 57(2) pathway, this bare statement was inadequate to convey the Committee's "reasons" for the proposed rejection of specialist registration.
2. The bare statement does not advise of the Committee's position that, pursuant to the s 57(2) pathway, Dr Taddei's knowledge, skills and experience from working as an orthodontist for almost 20 years (including as a specialist orthodontist from 24 January 2020 under United Kingdom law) cannot be considered as part of rectifying deficits in his 2001 qualification - since a comparable regulatory pathway to that in the United Kingdom "does not exist in Australia".
3. Consequently the bare statement does not contain any assessment of whether - adapting the language of the Appeal Panel of the General Dental Council in 2020 - Dr Taddei's "knowledge of and experience in orthodontics is equivalent to the knowledge and experience which he might reasonably be expected to have acquired if he had undertaken the training required" so that his two year 2001 qualification was "substantially equivalent, or based on similar competencies" to an approved three year qualification.
4. Dr Taddei was entitled to know the legal and factual basis which underpinned the proposed rejection of his application, particularly so that he could obtain legal advice to inform his response.
5. At the time Dr Taddei was self-represented, and could hardly be expected to appreciate from the minimal information provided in the Ahpra letter that the s 57(2) pathway existed, or to have any knowledge of the Queensland Court of Appeal's judgment and reasoning in Lee.[137] Even with legal representation, unless alerted to that judgment in Board and Ahpra documentation (noting also that it is not listed on their websites), the existence of this pathway is not obvious and is easily missed.
6. On 3 February 2022 the Queensland Civil and Administrative Tribunal published its decision in George v Dental Board of Australia [2022] QCAT 5, which had been heard one year earlier on 12 February 2021. As explained above the Queensland Tribunal applied Lee (as it was bound to do) and, pursuant to s 57(2), registered a dental practitioner whose overseas qualification did not satisfy the criteria in s 58(b) as a specialist endodontist "by" (as in "per force of") the imposition of conditions under s 83. The practitioner applied for specialist registration on 3 October 2017, which the Dental Board rejected on 9 March 2019.
7. By letter dated 11 February 2022 to the Board, Dr Taddei provided additional information and sought the opportunity to make an oral submission to the Committee (which subsequently occurred on 18 May 2022). Although not apprised of the s 57(2) pathway as per the 2014 judgment in Lee (or the Queensland Tribunal decision in George eight days earlier), Dr Taddei again requested that his "training, knowledge and experience" from working in the capacity of an orthodontist for almost 20 years - including as a specialist orthodontist from 24 January 2020 under United Kingdom law - be taken into account for specialist registration in Australia.[138]
8. This request was reiterated in circumstances where Dr Taddei had not been told, as part of the Committee's "reasons", that on Ahpra advice Dr Taddei's knowledge, skills and experience could not be taken into account to support specialist registration (as had occurred in 2020 under the United Kingdom regulatory scheme).
9. Dr Taddei estimated that by reference to the Index of Orthodontic Treatment Need (IOTN) which determines the severity of cases eligible for NHS treatment, he had treated "approximately 5000 cases" whose "aesthetic index" was "6 and above".[139] This is a measure of complexity, with "NHS orthodontic treatment" only available to individuals individuals with an "IOTN of DHC 4 or 5; or those with an IOTN DHC of 3 with at least an aesthetic component of 6" (the acronym DHC means Dental Health Component).[140]
10. Dr Taddei enclosed (inter alia) his "NHS prescribing profile for the period 2002-2005" which demonstrates the number of orthodontic appliances he fitted during that period:[141]

In the financial year 2002-2003, I had fitted 1129 orthodontic appliances. In the financial 2003-2004, I had fitted 1546 orthodontic appliances. In the financial year 2004-2005, I had fitted 1943 orthodontic appliances. The orthodontic appliances fitted would include removable appliances, fixed appliances, headgear, fixed expanders, functional appliances and retainers.

1. Dr Taddei emphasised, noting the "longitudinal nature of orthodontic treatment", that he had orthodontically "treated patients in one location for 20 years where I have assessed, diagnosed, treatment planned, started and followed through my cases to completion and seen them long after their retention phase has been completed".[142]
2. In conclusion Dr Taddei submitted that, together with his two year Master of Science (Orthodontics) from the Eastman Institute in 2001, his extensive experience in properly treating a high volume of complex orthodontic cases while working in one orthodontic practice for over 20 years demonstrated "fulfilment of the AQF Level 9 Masters Degree descriptors" (ie a three year Doctor of Clinical Dentistry in Orthodontics from one of

five Australian universities).[143] 3. Dr Taddei later provided a supportive reference dated 11 May 2022 from Dr Mark Leedham, orthodontist and forensic odontologist, which agreed with this conclusion. Dr Leedham suggested - given Dr Taddei's extensive orthodontic experience, and specialist registration since 24 January 2020 in the United Kingdom - that any deficiencies particularly as to the benchmarking of his two year Master of Science (Orthodontics) qualification in 2001 could be "remediated by a short period of supervised practice". 4. That is, Dr Leedham suggested the imposition of an appropriate condition to facilitate specialist registration for Dr Taddei, which - although not identified by Dr Leedham - may occur pursuant to s 57(2) (as construed in Lee), and which by that time had been applied on 3 February 2022 by the Queensland Tribunal in George (to which the Dental Board was a party).[144] 5. The Committee met by videoconference on 18 May 2022 to further consider and decide Dr Taddei's application. It comprised four of the six persons who first met on 17 November 2021, being a specialist dentist (in periodontics), a general dentist, and two community members. Three Ahpra regulatory staff attended, having prepared an agenda paper for the Committee's consideration.[145] The Committee met for one hour, and received a verbal submission from Dr Taddei.[146] 6. The agenda paper for the meeting was in substantially the same form as that prepared for the Committee's first meeting on 17 November 2021 and, in the Tribunal's view included the same misleading and incorrect advice about the s 57(2) pathway discussed above - particularly the 'bare statement' (at [154] and [162] above) and the extract with the underlined advice that the United Kingdom regulatory pathway "does not exist in Australia" (at [144] and [156] above).[147] 7. This misleading and incorrect advice was reiterated notwithstanding that, about three months earlier (on 3 February 2022), the Queensland Tribunal in George used the s 57(2) pathway to grant specialist registration of an endodontist "by" (as in "per force of") conditions. In doing so the Queensland Tribunal accepted that Dr George's knowledge, skills and experience of endodontics in academic positions and private practice rectified deficiencies in his overseas qualification (as compared to an Australian "approved qualification"). 8. The Queensland Tribunal's analysis, and application of the s 57(2) pathway, demonstrated that the agenda paper and related advice hitherto provided to the Committee for the meeting on 17 November 2021 was incorrect, and required review. At least, the Committee ought to have been formally advised of the substance and outcome of the decision in George so that - as a delegate exercising decision-making power - it could form its own view, and reach its own judgment, about that pathway.

Institutionally both the Board, and Ahpra, must be taken as having been apprised of

the Queensland Tribunal's analysis and the outcome of its decision (not least since the Board was a party), but on the documentary evidence filed that information was not formally conveyed to the Committee in a revised agenda paper. Nor is there any written record that such advice was orally given (see below). 9. It may be that the Board, and Ahpra, considered that the Queensland Court of Appeal's exposition of the s 57(2) pathway was legally incorrect, and that this may be established before the NSW Tribunal in Nowlan v Medical Board of Australia [2022] NSWCATOD 112 which was heard and decided later in 2022 (ie on the basis that the NSW Tribunal would conclude that the Queensland Court of Appeal's statutory construction in Lee was "plainly wrong", which did not occur).[148] If so, this was salient information which also ought to have been formally conveyed to the Committee in a revised agenda paper. 10. The record of the Committee's "Decisions and Actions" on 18 May 2022[149] replicated the same reasons for rejecting Dr Taddei's application as stated in the record for the Committee's first meeting on 17 November 2021,[150] followed by additional reasons which responded to Dr Taddei's "Written Submission" and "Verbal Submission" (under those headings) - and included the Ahpra advice that the regulatory pathway for specialist registration applied by the Appeal Panel of the General Dental Council in the United Kingdom does not exist in Australia".[151] 11. The additional reasons confirm the Committee's position that Dr Taddei's knowledge, skills and experience was not relevant to the qualification pathway in s 58(b), and also that that evidence could not be considered in relation to the s 57(2) pathway as construed by the Queensland Court of Appeal in Lee. There is no reference in the additional reasons, or otherwise in the record for the 18 May 2022 meeting, that the Committee was apprised of the Court's 2014 judgment in Lee. Nor is there any reference in that record that the Committee was apprised of any subsequent authority which considered Lee - particularly the Queensland Tribunal decision on 3 February 2022 in George which, pursuant to s 57(2), granted specialist registration as an endodontist, and in doing so set aside the Dental Board's rejection. 12. Further, the additional reasons erroneously concluded as follows in relation to Dr Taddei's written submission:[152]

To be granted specialist registration under section 57(1)(a) of the National Law, all applicants must demonstrate that they are qualified for specialist registration under section 58 of the National Law.

1. In the Tribunal's view this stated conclusion is legally incorrect. The point of the Queensland Court of Appeal's statutory construction in Lee is that "s 52(2) provides a means by which compliance with s 52(1) can be achieved" (ie that an individual is "eligible" and thus "qualified" for registration), with eligibility instead "achieved per

force of the imposition of conditions".[153] That is, the s 52(2) pathway does not require that an individual is "qualified" under one of the paragraphs (a) to (d) of s 53 for general registration. Likewise the s 57(2) pathway does not require that a practitioner is "qualified" under one of the paragraphs (a) to (d) of s 58 for specialist registration. 2. By letter dated 16 June 2022 an Ahpra regulatory officer notified Dr Taddei that the Committee had rejected his application for specialist registration due to non-compliance with the requirements of s 58(a) to (d) of the National Law.[154] As foreshadowed, Dr Taddei had now relocated to Darwin, and was working in an orthodontics practice. 3. The first part of the letter, under the heading "Reasons for decision" was in substance identical to that contained under the same heading in Ahpra's letter dated 17 November 2021 about the proposed rejection of specialist registration. It included the same 'bare statement' that the "deficits" in Dr Taddei's qualification were "too significant to be addressed through the imposition of conditions" meaning that he was "not eligible for specialist registration under section 57(2) of the National Law. The deficiencies of this "bare statement" are discussed above (at [162] to [167]), and equally apply here. 4. The second part of the letter was in substance identical to the additional information under the headings "Written Submission" and "Verbal Submission" in the record of the Committee's "Decisions and Actions" on 18 May 2022. For the first time, Dr Taddei was advised of the Committee's position that his knowledge, skills and experience could not be considered to rectify deficiencies in his 2001 Master of Science (Orthodontics) qualification because - unlike in the United Kingdom - "no such pathway leading to specialist registration exists in Australia".[155] 5. Likewise in the Tribunal's view the letter incorrectly said that specialist registration under s 57(1)(a) required that Dr Taddei was "qualified" under s 58(a) to (d), thus denying the existence of the s 57(2)) pathway whereby specialist registration may occur "by" (as in "per force of") the imposition of conditions (as per Lee, as applied in George). 6. The deficiencies of this advice are discussed above (at [184] to [185]), and equally apply here. 7. In the circumstances of this matter - which squarely raised the possible application of the s 57(2) pathway, the Ahpra letter dated 16 June 2022 was inadequate to convey the Committee's "reasons" for rejecting specialist registration. It is insufficient, as occurred here, to advise only of the Committee's position that there is no pathway whereby Dr Taddei's knowledge, skills and experience may be considered to rectify deficiencies in his 2001 qualification. 8. It was incumbent on Ahpra, on behalf of the Committee, to also advise as to the legal basis for that position. This required reference to the Queensland Court of Appeal's statutory construction in Lee, and subsequent authorities particularly George, together with succinct advice as to the legal basis whereby the Committee did not accept that Lee (or George) applied to Dr Taddei's circumstances. 9. In that respect, first, at the time of Ahpra's letter dated 16 June 2022, it was

separately contended by another National Board in Nowlan that the Queensland Court

of Appeal's exposition of the s 57(2) pathway in Lee was legally incorrect - however on 6 October 2022 the NSW Tribunal did not conclude that the Court's reasoning was "plainly wrong".[156] 10. If this contention informed the Committee's reasoning for rejecting specialist registration pursuant to the s 57(2) pathway (either because the Committee members expressly discussed this question, or because the reasoning was inherent in Ahpra's advice which the Committee accepted), it also ought to have been clearly stated in the written "reasons" set out in the Ahpra letter dated 16 June 2022. That did not occur. 11. Secondly, in a written submission to the Tribunal dated 4 September 2024 (after the hearing) the Board accepted that registration "by" (as in "per force of") the imposition of conditions pursuant to s 57(2) could occur "in an appropriate case", but sought to narrowly constrain that power to the specific facts which occurred in George.[157] Consequently, since George was distinguishable on its facts, the s 57(2) pathway could not be used to grant specialist registration to Dr Taddei. 12. Again if this was the Committee's reasoning for rejecting specialist registration pursuant to the s 57(2) pathway (either because the Committee members expressly discussed this question, or because the reasoning was inherent in Ahpra's advice which the Committee accepted), it ought to have been clearly stated in the written "reasons" set out in the Ahpra letter dated 16 June 2022.[158] That did not occur. 13. The outcome, in relation to the s 57(2) pathway, was that the Ahpra letter dated 16 June 2022 was inadequate to convey the Committee's "reasons" for rejecting specialist registration under that pathway.

1. On 14 July 2022 Dr Taddei applied to the Tribunal for a review of the Committee's decision on 18 May 2022 to reject specialist registration. Dr Taddei sought that the Committee's decision be set aside, and replaced by a grant of specialist registration in the specialty of orthodontics.[159]
2. By way of response dated 29 August 2022 the Board opposed Dr Taddei's

application, and sought that the Committee's decision be confirmed. The Board relied

on the "reasons for the decision which were set out in Ahpra's letter to Dr Taddei dated 16 June 2022, in substance that the s 58(b) qualification pathway was not satisfied, and only a "bare statement" about s 57(2) - together with an erroneous conclusion that specialist registration can only occur through being "qualified" under s 58, and thus cannot occur under s 57(2). 3. From the inception of the proceeding on 14 July 2022 until after the oral hearing on 17 and 18 July 2024, the parties engaged only in relation to the s 58(b) pathway (not the s 57(2) pathway), namely whether Dr Taddei possessed a qualification (or qualifications) which was "substantially equivalent, or based on similar competencies", to an "approved qualification" for orthodontics. 4. This was because Dr Taddei and his legal representatives were not then apprised of the s 57(2) pathway (as construed in Lee). They first became aware of the s 57(2) pathway and the Queensland Tribunal's decision in George about one week after the oral hearing. 5. This occurred in circumstances where, in the Tribunal's view, the Ahpra correspondence to Dr Taddei dated 22 November 2021 and 16 June 2022 was inadequate to respectively convey the Committee's "reasons" for proposing to reject, and for rejecting, specialist registration under the s 57(2) pathway. 6. The parties and their legal representatives, as well as an Ahpra officer, attended a compulsory conference on 21 October 2022.[160] Its statutory purpose was to "identify and clarify the issues in the proceeding and promote the resolution of the matter by a settlement between the parties".[161] There was no settlement, and the Tribunal subsequently made directions for the parties to file expert evidence for a contested hearing. That there was no settlement is unsurprising, since at that time the proceeding concerned only the s 58(b) qualification pathway - not the s 57(2) pathway. 7. The Tribunal foreshadowed the formation of a three member panel to conduct the review, including a practising dentist with general registration under the National Law. In that respect s 63(1)(b)(i) of the Health Practitioners Act 2004 (NT) requires that the panel include a "registered health practitioner" in the relevant "health profession" (ie the dental profession), which includes a dentist with general registration.[162] 8. By email to the Tribunal dated 17 July 2023 the Board requested that a registered orthodontist be appointed to the panel (rather than a dentist with general registration, or registration in another specialty), on the basis that by reference to s 63(1)(b)(iii) of the Health Practitioners Act 2004 (NT) only an orthodontist would have the requisite "skills, knowledge and experience" to assist the Tribunal panel to evaluate whether Dr Taddei's 2001 qualification (or qualifications) satisfied the s 58(b) pathway for specialist registration. 9. The Board's request was subsequently formalised as an application, which Dr Taddei did not support. 10. On 14 February 2024, after receiving written submissions from the Board - which identified the s 58(b) qualification pathway as the "only" and "key issue" in the proceeding, with no mention of the s 57(2) pathway (a position with which Dr Taddei then agreed)[163] - President O'Reilly rejected the Board's application on the basis that s 63(1)(b)(i) of the Health Practitioners Act 2004 (NT) did not mandate that an orthodontist must be on the Tribunal panel, and that otherwise the issues in dispute in this proceeding did not justify that occurring (by reference to s 63(1)(b)(iii)).[164] 11. The hearing before the Tribunal occurred on 17 and 18 July 2024. The parties filed written submissions which again identified the s 58(b) qualification pathway as the only substantive issue in the proceeding. There was no mention of s 57(2), or the construction placed upon it by the Queensland Court of Appeal in Lee or the recent application of that construction by the Queensland Civil and Administrative Tribunal in George.[165] 12. It was common ground that s 58(b) involved a "comparison of like with like" to ascertain whether Dr Taddei's qualification(s) was "substantially equivalent, or based on similar competencies" to an Australian "approved qualification".[166] The parties were in "furious agreement" that this task did not involve "assessing [Dr Taddei's] actual knowledge and experience", in contrast to the United Kingdom regulatory pathway where that could be (and was) considered by the Appeal Panel of the General Dental Council when granting Dr Taddei specialist registration as an orthodontist on 24 January 2020.[167] 13. The parties filed expert reports, particularly about whether Dr Taddei's qualification (or qualifications) complied with s 58(b) such that he may be registered as a specialist orthodontist. 14. Dr Taddei retained Dr Derek Mahony, a dentist and orthodontist with over 35 years' experience (principally as a specialist) who prepared a report dated 11 December 2023. Dr Mahony completed a two year Master of Science (Orthodontics) at the Eastman Institute (as well as the bi-collegiate MOrth examination) some years prior to Dr Taddei's completion of his two year Master of Science (Orthodontics) qualification in 2001), and thus could give evidence regarding the coursework which then occurred (as did Dr Taddei) in circumstances where some documentation from 2001 was no longer available given the passage of time.[168] 15. The Board retained Dr Peter Lewis, a dentist and orthodontist with almost 45 years' experience (principally as a specialist) who prepared three reports dated 4 April 2023, 17 May 2024, and 11 July 2024. As well as practising privately, Dr Lewis was variously a lecturer and external examiner in orthodontics at the University of Sydney between 1997 and 2010. 16. Between 2008 and 2020 Dr Lewis was an accreditor of orthodontics courses at the University of Sydney, Queensland and Western Australia (including under the auspices of the Australian Society of Orthodontists and the Australian Dental Council), which involved assessing the course curricula and clinical load and work of postgraduates to ensure performance was at a level expected from a training institution. Dr Lewis explained that there "tends to be a fairly level playing field" in the quality and standard of Australasian orthodontics courses particularly since around 2012 whereby the "heads of all departments in Australia and New Zealand rotate and visit each other".[169] 17. Whilst Dr Taddei and Dr Mahony were able to give direct evidence regarding actual coursework at the Eastman Institute in around 2001 (and earlier years) in circumstances where some documentation from that time is unavailable, Dr Lewis's accreditation and lecturing work meant that he was well placed to give direct evidence regarding contemporary coursework for orthodontics in Australian universities. 18. Dr Taddei gave oral evidence at the hearing. As was the case before the Appeal Panel of the General Dental Council in 2020 (and adopting its words), Dr Taddei presented to the Tribunal as a "credible witness" who "showed great attention to detail in his [oral] presentation".[170] It was not suggested in cross examination, or otherwise submitted, by the Board that - as a matter of substance - Dr Taddei's expertise and competence in the safe and professional practice of orthodontics was in any way deficient. 19. Dr Taddei's testimony was followed by expert oral evidence from Dr Mahony and Dr Lewis. The expert evidence concerned only the s 58(b) qualification pathway, not the s 57(2) pathway which had not yet been identified as an issue in the proceeding. This evidence is discussed below under the next heading. 20. There was discussion and evidence at the hearing, given the Committee's rejection of Dr Taddei's application, as to what other options may enable him to obtain specialist registration in Australia - other than completing a three year postgraduate qualification in orthodontics in Australia (or overseas). The only such option is to obtain specialist registration in New Zealand by physically sitting and passing an examination at the University of Otago.[171] The Tribunal was told that Dr Taddei's two year Master of Science (Orthodontics) in 2001 is a sufficient precondition for that examination.

Once registered in New Zealand, Dr Taddei would "automatically" receive specialist registration in orthodontics in Australia pursuant to the Trans-Tasman Mutual Recognition Act 1997 (Cth) for mutual recognition of New Zealand health practitioners. Section 58(b) would not apply; consequently there would be no comparative assessment of Dr Taddei's 2001 qualification with a current Australian "approved qualification".[172] 21. On 18 July 2024, at the completion of the hearing, the Tribunal reserved its decision. 22. One week later, on 25 July 2024, Dr Taddei's solicitor emailed the Tribunal a copy of the Queensland Civil and Administrative Tribunal's decision in George, and advised that both parties requested that a timetable be set for written submissions about it - particularly the s 57(2) pathway for specialist registration. At the time, from its own post-hearing research, the Tribunal was separately apprised of the decision in George and several other authorities about which written submissions were subsequently ordered on 2 August 2024. 23. The parties written submissions were respectively received on 23 August, 4 September, 16 September and 18 September 2024.

1. The possible statutory pathways for specialist registration, as raised by the evidence, are considered below under the following subheadings.

Section 58(b) pathway: comparison of Dr Taddei's 2001 qualification with an Australian "approved qualification"

1. As discussed above, the Tribunal accepts the meaning explained by Kyrou JA in Pereira for the term "qualification" as used in s 58(b), namely - as the Board submitted - that a "qualification" must be "some form of certificate or other credential attained through a direct assessment of "actual skill or competency" by an "examining body" (ie a recognised educational or professional body performing that role), as distinct from the consideration of "information" or "documents" provided by an applicant for registration.[173]
2. This means for s 58(b) that the only "qualification" possessed by Dr Taddei is his two year Master of Science (Orthodontics) from the Eastman Institute in 2001. Dr Taddei's specialist registration as an orthodontist on 24 January 2020 in the United Kingdom

is not a "qualification", because the Appeal Panel of the General Dental Council was

not an "examining body" which itself conducted a formal assessment when granting registration (as does an educational institution when conferring a qualification). Likewise Dr Taddei's memberships of the Orthodontic Specialists Group of the British Orthodontic Society, and fellowship of the World Federation of Orthodontics, are not a "qualification" for s 58(b). 3. The Tribunal accepts, in substance by reference to the analysis and reasons of the Equivalence Assessment Panel which was accepted by the Committee (and Dr Lewis), and appreciating the context given by Dr Lewis's educational and training perspective set out below (including that he was well placed to give direct evidence about contemporary coursework for orthodontics in Australian universities), that Dr Taddei's two year 2001 Master of Science (Orthodontics) qualification does not comply with either limb of s 58(b).[174] 4. Dr Taddei said that, as compared to a current Australian three-year "approved qualification", the two year course at the Eastman Institute in 2001 was "very unique" and "extremely intensive" because it "front load[ed] pretty much all the training within the first two years - such that it should be taken as being "substantially equivalent, or based on similar competencies" to a three year Doctor of Clinical Dentistry in Orthodontics from one of five Australian universities (ie a current "approved qualification") which are not comparably intensive.[175] Without detracting from that comparative conclusion, Dr Taddei naturally accepted in cross examination that a student would have greater competence on completion of the three year course at the Eastman Institute, than would be the case for a student at the end of the two year course at that institution.[176] 5. Dr Mahony agreed with Dr Taddei's comparative conclusion, particularly that the two year course at the Eastman Institute was intensive and a "very full on programme" - as compared to a current Australian qualification.[177] Dr Mahony emphasised his assessment that "the two years of orthodontic graduate training in Eastman [in 2001] is equivalent to the current expectations of the Australian Dental Council as the number of hours, excluding holidays, is equivalent as in the depth of teaching and the topics covered". Dr Mahony considered that "the number of clinical cases to be covered during the two-year programme in Eastman is the same, if not more, than that required in a three-year programme in Australia".[178] 6. In oral evidence Dr Mahony said that Australian universities had a significantly greater number of holidays during the year than the Eastman Institute (both in 2001 and currently), meaning that Dr Taddei's two-year Master of Science (Orthodontics) qualification was considerably more intensive and equated to a current three year Australian "approved qualification". Dr Mahony gave an example of a dental school at an American university which likewise was comparatively more intensive, such that its

three year course was accepted by the American Dental Association as equating to

what other universities ordinarily cover over five years.[179] 7. Particularly from his direct experience of studying at the Eastman Institute but also from comparing the curricula for each year, Dr Mahony disagreed with Dr Lewis's view that the third year of study at that institution (which Dr Taddei did not do) is "more clinically and patient focused",[180] and maintained this position in cross examination.[181] Dr Mahony concluded as follows:[182]

In conclusion, a review of the training programmes at Sydney University, University of Western Australia, and the Eastman Institute reveals substantial equivalence in both didactic and clinical preparation for orthodontic specialists. The curriculums cover the same core topic areas including orthodontic theory, biomechanics, diagnosis, treatment planning, and multidisciplinary care. Both programmes also incorporate cell biology, genetics, psychology, research methods, oral health, and practice management.

1. Dr Mahony's direct experience at the Eastman Institute corroborated Dr Taddei's evidence about the comparative intensity of coursework, in circumstances where some documentation from 2001 was no longer available given the passage of time. Similar evidentiary deficiencies from the passage of time arose in George, however - unlike for Dr Taddei - Dr George's direct evidence about the coursework for his 1999 postgraduate qualification in endodontics from the Rajiv Gandhi Health University was not corroborated, and was thus given less weight. Accordingly, on the evidence "currently available", the Queensland Tribunal in George was "not persuaded" that the criteria in s 58(b) had been demonstrated (ie that Dr George's 1999 qualification was "substantially equivalent, or based on similar competencies" to an Australian "approved qualification").[183]
2. Nonetheless in the Tribunal's view it remains the case, particularly given his extensive accreditation experience, that Dr Lewis is better placed to give direct evidence regarding contemporary coursework for orthodontics in Australian universities - which, in turn, informs the comparative task. Considering the evidence as a whole the Tribunal is not satisfied, particularly given Dr Lewis's evidence about contemporary coursework for orthodontics, that the first or second limbs of that provision are made out.
3. It follows from this evidentiary finding that Dr Taddei's 2001 Master of Science (Orthodontics) qualification does not satisfy the criteria in s 58(b). Specialist registration cannot occur under this provision.
4. There are broader contextual considerations which inform the evaluative task under s 58(b) which confirm that Dr Taddei's 2001 qualification does not satisfy the criteria for that provision.
5. Dr Lewis did not accept that it was "plausible" that there would be "no additional clinical or didactics knowledge" from a three year postgraduate course (and also from the "rigorous" MOrth examination), as compared to a two year course, particularly since

the former had a "50% increased length of study" as compared to the latter.[184] 6. In that respect Dr Lewis emphasised historic change in educational standards, whereby some decades ago postgraduate courses for specialist orthodontics had increased to a three year period:[185]

At the time of Dr Mahony's training there was still a pathway in Australia where twenty-four-month programs were acceptable and this was then followed by a twelve-month logbook supervision period where all his decisions and cases were documented and logged with an appointed supervisor to bring it up to a thirty-six-month clinical equivalence. This ceased to be the case in Australia prior to Dr Taddei undertaking a program in the United Kingdom as both Australia and UK had moved to what was then more a globally advocated three-year program as being optimal for specialist training.

The movement to the three-year program was to allow the increase of the depth of learning of the post-graduate students as well as the ability to treat more complex clinical cases through to completion. This was simply not practical within a twenty-four-month program. It is not simply a case of covering a list of topics which may be the same for a 2-year or 3-year program but the increased length of time and depth that the postgraduates are exposed to in each topic in the third year of study. The University of Sydney responded [to a recent query by Dr Lewis] that they struggle to cover all the topics to the depth they require in the 3 years.

1. This evidence underscores that the evaluative task contemplated by s 58(b) whereby a qualification (or qualifications) is compared with a current Australian "approved qualification" does not occur in a vacuum. There is a broader context. The comparative task must take into account that over many years there has been a substantial and continuing effort by educational institutions, health professions, and regulators to ensure common educational and training standards - particularly to "facilitate the rigorous and responsive assessment of overseas-trained health practitioners", and "facilitate workforce mobility across Australia" (including by overseas practitioners).[186]
2. As Dr Lewis explained this collaborative effort to ensure common standards occurs both nationally and internationally, plainly with the "paramount" object of ensuring the "protection of the public" and promoting confidence in health professions and treatments.[187]
3. Consequently the Board's position that even a three year Master of Science (Orthodontics) from the Eastman Institute, whether in 2001 or currently, does not of itself meet the requirements of s 58(b) because the MOrth examination must also be completed is unsurprising - and must be accepted. That three year qualification would not result in specialist registration as an orthodontist under the qualification pathway in the United Kingdom; nor would a two year qualification. More is required, particularly completion of the MOrth examination. The evaluative task in s 58(b) contemplates that significant weight will be given to ensuring consistency in registration outcomes

from comparable regulatory regimes. 4. This contextual appreciation lends strongly against the proposition that the two year (or three year) Master of Science qualification from the Eastman Institute, of itself, is sufficient for specialist registration in orthodontics under the s 58(b) qualification pathway. That outcome would mean that, in 2025, a practitioner could simply complete the two year (or three year) course at the Eastman Institute, and immediately be registered as a specialist orthodontist in Australia - notwithstanding that he or she could not be registered in the United Kingdom because the MOrth examination had not been undertaken. Indeed this would be the case even if the practitioner first sat, but failed, the MOrth examination.

Section 57(2) pathway: specialist registration "by" (as in "per force of") the imposition of conditions or acceptance of an undertaking.

1. As explained above, the question of whether Dr Taddei may be granted specialist registration pursuant to s 57(2) (as construed by the Queensland Court of Appeal in Lee, and applied by the Queensland Civil and Administrative Tribunal in George) was first identified about one week after the oral hearing on 17 and 18 July 2024, with the parties filing written submissions which were respectively received on 23 August, 4 September, 16 September, and 18 September 2024.
2. The Tribunal is bound to apply the Queensland Court of Appeal's construction of s 52(2) (and thus also s 57(2)) in Lee unless satisfied or "convinced" that it is "plainly wrong". A perusal of the authorities demonstrates that, whilst differing views have been identified, no Australian Tribunal has formed that conclusion. Nor does this Tribunal. Nor did the Board so submit, although (as discussed below) it sought to narrow the ambit of the s 57(2) registration power to facts such as pertained in George.
3. Accordingly the s 57(2) pathway for specialist registration must be applied regarding Dr Taddei's application.
4. The starting point for consideration of the registration pathway in 57(2) is the Queensland Court of Appeal's statutory construction of s 52(2) in Lee, which is set out above. The judgment in Lee, together with all reported authorities about s 52(2) and analogous provisions of which the Tribunal is aware, are discussed herein (including as footnoted), particularly to inform the Tribunal's decision as to whether or not Dr Taddei's circumstances are an "appropriate case" to grant specialist registration in orthodontics pursuant to s 57(2).
5. Dr Taddei submitted that specialist registration should be granted (with possible conditions identified), as follows:[188]

In short, s 57(2) allows for the Tribunal to consider whether, as a matter of substance, the practitioner is eligible for specialist registration with the imposition of conditions or an undertaking. It appears to be designed for precisely this type of scenario - i.e. where Dr Taddei (like Dr George) is clearly, as a matter of substance, suitable for specialist registration, but where he does not strictly satisfy the 'qualification' requirements of s 58. Accordingly, the Tribunal should exercise its discretion under s 57(2) in Dr Taddei's favour.

As to the appropriate conditions or undertaking to apply - Dr Taddei is more than willing to abide by whatever reasonable 'conditions' and/or 'undertakings' may be required of him for this purpose.

In the context of practice in Darwin, where there do not appear to be any appropriate supervisors physically present, Dr Taddei proposes that the following may be appropriate conditions for the Tribunal to impose:

(a) Supervision of his practice (carried out remotely). Dr Taddei could, for example, consult with a supervisor (Orthodontist) approved by the Dental Board. The consult could be by telephone, video conference or other means of telecommunication say once a month (or another interval) to discuss the management of patients. This could be done after the care is given to a patient and would be consistent with AHPRA's Supervised Practice Framework (attached).

(b) Dr Taddei understands that dental practitioners are required to do 60 hours of CPD over 3 years. A possible condition could be to require Dr Taddei to complete 100 hours of CPD, namely 80 hours on clinical or scientifically-based activities and 20 hours on non-scientific activities.

(c) An Audit of Dr Taddei's practice say within 12 months of this condition being imposed.

1. In his reply Dr Taddei clarified that, in his submission, "any one of these three conditions may suffice of itself" to facilitate registration, whilst appreciating that the Tribunal may consider that "some other form of condition [or undertaking] may be appropriate".[189]
2. The Board did not submit that the statutory construction of s 52(2) in Lee, as applied to s 57(2) in George, was wrongly decided. Indeed the Board accepted that registration by imposition of conditions could occur in "an appropriate case", but contended that the registration power in s 57(2) had only a narrow ambit which was limited to facts such as pertained in George. The Board submitted:[190]

The Board accepts it is open to a responsible tribunal to impose conditions on registration under s 57(2) of the National Law in an appropriate case. However, it does not accept this is an appropriate case in which to impose conditions under s 57(2) or that the conditions proposed by the Applicant would be sufficient to address the reasons why the Applicant is not qualified for registration under s 58 of the National Law.

In particular, unlike the conditions imposed in George, the conditions advanced by the Applicant in this case would not result in the Applicant having involvement in an 'approved course of study' that could lead to any of the 'approved qualifications' for orthodontics.

Also, while remote supervision at regular intervals might assist the Applicant to better practice orthodontics by providing input to his management of patients, it would not:

(a) involve any assessment or even supervision of his technical skills in the way

that an 'approved course of study' leading to an 'approved qualification' would;

or

(b) address the concerns raised by Dr Lewis in his reports and oral evidence.

1. In short, the Board's position is that to grant specialist registration to Dr Taddei under s 57(2), a condition would need to be crafted which (as it were) equates to a full year of supervised postgraduate study in orthodontics, so as to rectify the deficiency in his 2001 qualification. The Board contends that this is what happened to facilitate specialist registration in George, but that it cannot realistically be done in Dr Taddei's circumstances - including because "remote supervision at regular intervals" would not "involve any assessment or even supervision of [Dr Taddei's] technical skills in the way that an 'approved course of study' leading to an 'approved qualification' would" achieve.
2. This submission is misplaced, and cannot be accepted. It presumes that, pursuant to specialist registration under the s 57(2) pathway, the sole or principal object of an imposed condition is to itself rectify a deficiency in a qualification, particularly and only by involving a practitioner in a supervised course of study or practice. That is not an accurate description of the underlying circumstances which appropriately facilitated specialist registration in George. Moreover the Board's position reflects an unjustified construction of s 57(2) and its ambit which is unduly narrow and inflexible, and which is inconsistent with the Queensland Court of Appeal's exposition in Lee.
3. Dr George was the Director of Studies at Griffith University for a postgraduate qualification in endodontics, and was "closely involved" in lecturing, supervising and assessing postgraduates who were studying for an "approved qualification" - albeit that "the overall supervision of the course and the students, and therefore also [Dr George's] work [ie as a lecturer, but not his private endodontic practice], is in the hands of a registered specialist endodontist, as required by the [Dental Board]". The Queensland Tribunal accepted that, in that capacity, Dr George would "have a good grasp of all parts of the course, including those parts he does not teach himself" - such that, by the time "the first set of students have completed the course [ie from 2020 to 2022], he will be in substantially the same position as they are in terms of their study of endodontics, if not indeed in a better position, because of his longer practical experience".[191]
4. That is, in addition to appreciating that Dr George's position as the Director of Studies was ultimately subject to the "overall supervision" of a registered specialist endodontist (who supported Dr George's application), the Queensland Tribunal was also satisfied from Dr George's knowledge, skills and experience (as confirmed by references which "speak highly of his skill and expertise") that he was "thoroughly familiar with the subject" of endodontics (both from academic work and "for years" conducting a private "practice essentially as a specialist endodontist"), and that registration would not be "in any way contrary to the objective of furthering the health and safety of the public".[192] This factual finding underpinned the Queensland Tribunal's acceptance that it was "appropriate", in Dr George's circumstances, to grant specialist registration pursuant to s 57(2).
5. So appreciated, being satisfied from Dr George's extensive experience that there

was in substance no risk to the "protection of the public" (which is of "paramount" importance),[193] the purpose of the conditions was principally to fulfil other objectives and guiding principles of the National Law, particularly to: "facilitate the rigorous and responsive assessment of overseas-trained health practitioners" (s 3(2)(d)); "facilitate access to services provided by health practitioners in accordance with the public interest" (s 3(2)(e)); "enable the continuous development of a flexible, responsive and sustainable Australian health workforce" (s 3(2)(f)); and to ensure that the scheme operates in an "efficient, effective and fair way" (s 3A(2)(a)), with "restrictions" only imposed to the extent "necessary to ensure health services are provided safely and are of an appropriate quality" (s 3A(2)(c)). 6. In that respect, in determining what is "an appropriate case" for registration pursuant to s 57(2) (being the determinant identified by the NSW Tribunal in Wu, and also adopted by the Board in the above extract), it is important to do so by reference to fulfilling the objectives and guiding principles of National Law (as extracted in the preceding paragraph). The word "appropriate" means "suitable or fitting for a particular purpose"; plainly enough registration by conditions which fulfil those statutory objects and guiding principles of the National Law will be "suitable or fitting" to those "particular purpose[s]" or ends - and thus "appropriate".[194] 7. That the Board's submission is misplaced is also evident from the Queensland Court of Appeal's judgment in Lee, which explained that the power to grant general (or specialist) registration in s 52(2) (or s 57(2)) is not "limited to any particular set of circumstances, much less extraordinary circumstances". In doing so the Court of Appeal rejected a contrary submission by the National Board in that proceeding, which sought to limit the registration power in s 52(2) to "extraordinary circumstances". 8. Here, the Board's submission that the registration power in s 57(2) has only a narrow ambit which is limited to facts such as pertained in George, in substance, is simply another way of submitting that the power can only be used in "extraordinary circumstances". So appreciated, the Board's submitted constraint on statutory power is inconsistent with the Court of Appeal's exposition in Lee. 9. Moreover, contrary to the Board's submission for Dr Taddei that "remote supervision" would be insufficient to justify exercise of the power in s 57(2), in Lee the Queensland Court of Appeal endorsed "conditions requiring supervised practice for a period" (involving a "supervised practice plan" and "quarterly reports", and a "report on application for renewal of registration").[195] The fact that any supervision for Dr Taddei would be remote (due to his orthodontic practice being in Darwin and an absence of suitable supervisors in that city) does not preclude the operation of s 52(2), particularly in circumstances where Dr Taddei has extensive experience and has been

unconditionally registered as a specialist orthodontist in the United Kingdom since

24 January 2020. 10. The Board also footnoted a passage in Nowlan v Medical Board of Australia (No 3) [2020] QCAT 287 at [37] as supporting its position that, pursuant to s 57(2), the sole or principal object of an imposed condition is to itself rectify a deficiency in a qualification.[196] The circumstances of Mr Nowlan's unsuccessful applications for provisional registration as a medical practitioner (pending completion of undergraduate examinations) are outlined above, having been the subject of several adverse decisions by Queensland and NSW Tribunals. 11. Mr Nowlan's circumstances were very different to those for Dr George (and Dr Taddei), and unsurprisingly the Queensland Tribunal's task in relation to registration by imposed conditions was correspondingly different. Mr Nowlan had no practical experience as a registered medical practitioner, and consequently the only question was whether imposed conditions could rectify the deficiencies in his incomplete and deficient studies. Unsurprisingly the Queensland Tribunal had no difficulty in concluding that conditions could not "make up for his unsatisfactory academic progress". Provisional registration by imposed conditions would not accord with the "paramount" guiding principle of protecting the public, and "ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered".[197] 12. Likewise it is also unsurprising that the Queensland Tribunal had no difficulty in concluding that Dr George should be registered as a specialist endodontist pursuant to s 57(2), since - unlike Mr Nowlan - Dr George had extensive experience and practice which rectified deficiencies in his overseas qualification. For that reason the imposed condition which facilitated specialist registration for Dr George effectively applied only for the remainder of the 2022 calendar year (rather than an extended period) with a review period of 18 months (as per s 83(2)), and required only that he "remain at least as closely involved" with the postgraduate endodontics course for which he was the Director of Studies at Griffith University. 13. Plainly, pursuant to his employment contract, Dr George was fully committed to fulfilling his Director of Studies role throughout 2022. So appreciated the imposed condition for Dr George was not onerous; indeed it did not require him to do anything additional or different to what he was already contractually bound to do and would have done anyway as the Director of Studies. Moreover, Dr George's private practice in endodontics was not the subject of supervisory conditions or regular audits, and he was not required to complete any endodontic courses additional to his continuing professional development obligations. 14. In these circumstances it may have been appropriate, if s 83A had been in force on 3 February 2022 (this amendment took effect later that year), for the Queensland Tribunal to consider registration pursuant to s 57(2) by acceptance of an undertaking under s 83A (in the same terms as the conditions) - rather than the formal imposition of conditions. The Queensland Court of Appeal's construction in Lee must mean that registration by acceptance of an undertaking is now an option contemplated by s 57(2). 15. The Board also relied, in the above extract from its written submission, on

"concerns" said to have been "raised by Dr Lewis in his reports and oral evidence"

about the use of conditions in relation to registration. This reliance is misplaced; the evidence reveals that Dr Lewis was not apprised that the s 57(2) pathway for specialist registration existed - particularly as explained herein. A perusal of the Board's terms of reference and enclosures to Dr Lewis confirms that this was the case.[198] 16. In that respect Dr Lewis was asked whether, given Dr Taddei's extensive orthodontics practice for over 20 years and specialist registration in the United Kingdom since 24 January 2020, he "should be granted specialist registration subject to conditions". Dr Lewis rejected this option given his understanding that the regulatory pathway in the United Kingdom "does not have an equivalency" under the National Law. In short:[199]

The clinical and non-clinical practice of orthodontics has no relevance to an application for specialist registration with the Dental Board of Australia.

Specialist registration in Orthodontics should not be granted. Specialist registration certifies to the general public and the profession that the holder is a qualified specialist in their field. It would be inappropriate to place a condition on the registration based on the individuals lacking of a specialist qualification.

1. In conclusion, according to Dr Lewis there was only one pathway in Australia whereby Dr Taddei could be granted specialist registration, namely completion of a three year Doctor of Clinical Dentistry in Orthodontics from one of five Australian universities) (ie an "approved qualification").
2. This evidence demonstrates that Dr Lewis did not appreciate that, as construed in Lee and applied in George, s 57(2) provides a pathway for specialist registration "by" (as in "per force of") conditions which involves consideration of a practitioner's knowledge, skills and experience (as well as the practitioner's deficient qualification). That is, contrary to Dr Lewis's understanding, the "clinical and non-clinical practice of orthodontics" is relevant to specialist registration under s 57(2).
3. Likewise Dr Mahony was not apprised of the s 57(2) pathway particularly as explained herein, noting that Dr Taddei and his legal representatives were not aware of the Queensland Tribunal's decision in George until after the hearing.[200]
4. Dr Mahony considered that Dr Taddei's two year 2001 Master of Science

(Orthodontics) qualification was "substantially equivalent, or based on similar competencies" to a three year Australian "approved qualification", such that he should be granted specialist registration under s 58(b) - which the Tribunal does not accept (as detailed above). In that context (ie of registration occurring under s 58(b)), by reference to Dr Taddei's knowledge, skills and experience, Dr Mahony considered that there should not be "any conditions imposed on his specialist registration".[201] 5. Dr Mahony was not aware of the s 57(2) pathway, or its operation, when expressing this opinion - particularly that registration occurs by imposition of conditions (or, since 2022, by acceptance of an undertaking). Nonetheless Dr Mahony plainly accepts that the evidence in substance justifies specialist registration for Dr Taddei, provided that a legal pathway may facilitate that outcome. Dr Mahony's position accords with that of Dr Leedham in his supportive reference dated 11 May 2022. 6. The Tribunal considers, on review, that the evidence comprehensively demonstrates that Dr Taddei should be registered as a specialist orthodontist via the s 57(2) pathway, specifically by the imposition of conditions under s 83 or the acceptance of an undertaking under s 83A. 7. The Tribunal accepts, adapting the language of the Appeal Panel of the General Dental Council in 2020, that (together with his 2001 qualification) Dr Taddei's "knowledge of and experience in orthodontics is equivalent to the knowledge and experience which he might reasonably be expected to have acquired if he had undertaken the training required" for a current Australian "approved qualification". 8. In forming that conclusion the Tribunal is satisfied that a grant of specialist registration to Dr Taddei pursuant to s 57(2) would fulfil the objectives and guiding principles of the National Law, including that the "protection of the public" is of "paramount" importance. 9. Consequently the Tribunal considers that the correct, or preferable, decision is that specialist registration be granted to Dr Taddei on that basis (ie in substitution for the Committee's decision, which is set aside).[202] 10. The next section concerns the form of the Tribunal's orders to facilitate that outcome.

Formulation of appropriate imposed conditions or an accepted undertaking under s 57(2)

1. The Tribunal has been assisted by a written submission from Dr Taddei as to possible conditions which may be imposed pursuant to s 57(2) to facilitate specialist registration.
2. Those possible conditions are set out above, and concern the remote supervision of Dr Taddei's orthodontics practice; completion of additional continuing professional development courses; and/or a 12 monthly audit of his practice. Dr Taddei suggested that any one, or more, of these conditions may be appropriate to facilitate registration, whilst appreciating that ultimately this is a matter for the Tribunal.
3. To date the Tribunal has not been assisted by any submissions from the Board as to whether one or more of the conditions proposed by Dr Taddei would be appropriate to facilitate specialist registration, or whether other conditions or an accepted

undertaking would more appropriately achieve that outcome. 4. This is because, throughout its consideration of Dr Taddei's application and including before the Tribunal, the Board has taken successive legal positions which deny that there is power under s 57(2) to facilitate specialist registration. 5. For the reasons explained above, the Tribunal does not accept those legal positions, and thus considers that there is ample power under s 57(2) (as construed in Lee, and applied in George) to grant specialist registration to Dr Taddei in the specialty of orthodontics. 6. The Tribunal also considers that the evidence comprehensively demonstrates that such a grant of specialist registration should occur, this being the correct, or preferable, decision on review (in substitution for the Committee's decision which is set aside).[203] 7. To facilitate that outcome the Tribunal would be greatly assisted by the Board's advice, as supported and advised by Aphra, regarding appropriate imposed conditions or an accepted undertaking to facilitate specialist registration pursuant to s 57(2).[204] 8. That advice should be formulated in accordance with the Tribunal's legal position explained herein as to the construction of s 57(2), and the appropriate exercise of that power in relation to specialist registration. 9. Without limiting the advice which the Board may provide, the Tribunal would be assisted by:

(i) A response regarding the appropriateness of the three possible conditions suggested by Dr Taddei to facilitate specialist registration pursuant to s 57(2).

(ii) Advice regarding any other possible conditions which may additionally, or instead, be appropriate to facilitate specialist registration for Dr Taddei pursuant to s 57(2).

(iii) Advice regarding any possible undertaking which may be appropriate to facilitate specialist registration for Dr Taddei (pursuant to s 57(2)(ii)).

(iv) Advice regarding any examples of a National Board itself facilitating registration, specialist registration, provisional registration, or limited registration by imposition of conditions or acceptance of an undertaking pursuant to ss 52(2), 57(2), 62(2) and 65(2) of the National Law, particularly the circumstances which justified registration occurring.

(v) Advice as to whether or not registration ultimately occurred (by imposition of conditions or otherwise) for the acupuncturist in Lee, noting that the Queensland Tribunal's decision to grant registration by imposed conditions was overturned on appeal on a separate ground, and the ultimate outcome does not appear in any published decision.

(vi) Advice as to whether or not registration ultimately occurred (by imposition

of conditions or otherwise) for the nurse in Linquist v Nursing and Midwifery Board of Australia [2018] NSWCATOD 183, noting that the NSW Tribunal's decision that registration should be granted by imposed conditions was overturned on appeal on a separate ground, and the ultimate outcome does not appear in any published decision.

1. The Tribunal orders below that the requested advice be provided by the Board within 14 days of this decision, followed by a response from Dr Taddei within seven days of receipt of the Board's advice.
2. These are fairly short timelines, and the parties have liberty to apply to extend or vary them should the dates be unsuitable or inconvenient. As has occurred throughout this proceeding, the parties are encouraged to first consult about any variation in the timelines with a view to reaching an agreed position for the Tribunal's consideration.
3. The parties are also encouraged to consult about imposed conditions or an accepted undertaking to facilitate specialist registration pursuant to s 57(2), with a view to reaching agreement about that question for the Tribunal's consideration.

1. In its response dated 29 August 2022 the Board sought that Dr Taddei pay the Board's costs under s 201 of the National or s 132 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT).
2. Dr Taddei submitted that the question of costs should be reserved until after the outcome of the proceeding is known.[205]
3. The outcome, in principle, is now known. Accordingly the Tribunal orders below that Dr Taddei provide a short written submission regarding the question of costs within 14 days of this decision, followed by a response from the Board within seven days of receipt of Dr Taddei's submission.
4. Again, the parties have liberty to apply to extend or vary these timelines should the dates be unsuitable or inconvenient.

1. For the reasons expressed in the Tribunal's reasons for decision published on 16 May 2025, and pursuant to ss 46(1) and 50(1)(c)(i) of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT), the Tribunal considers on review that the correct, or preferable, decision is that:

(i) the decision of the Registration and Compliance Committee of the Dental Board of Australia (the Respondent) on 18 May 2022 to refuse to grant Dr Yann Taddei (the Applicant) specialist registration in the specialty of orthodontics be set aside;

(ii) pursuant to s 57(2) of the National Law, specialist registration be granted to Dr Taddei in the specialty of orthodontics by the imposition of conditions under s 83 or the acceptance of an undertaking under s 83A.

1. The Tribunal will determine the appropriate terms of final orders to set aside the Committee's decision and facilitate specialist registration, particularly as to the form of conditions under s 83 or an undertaking under s 83A, after considering written submissions from the parties as per the orders below.

1. By 30 May 2025 the Board shall, in accordance with the Tribunal's position as to the construction of s 57(2) including the exercise of that power (as explained in its reasons for decision published on 16 May 2025), file submissions as to appropriate imposed conditions or an accepted undertaking pursuant to s 57(2) to facilitate specialist registration of Dr Taddei in the specialty of orthodontics.
2. By 6 June 2025 Dr Taddei shall file written submissions in response to the Board's submissions pursuant to order 1.
3. By 30 May 2025 Dr Taddei shall file written submissions about the question of costs.
4. By 6 June 2025 the Board shall file written submissions in response to Dr Taddei's submissions pursuant to order 3.

[1] The Health Practitioner Regulation National Law (NT), as in force from time to time, is set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), and applies as a law of the Northern Territory pursuant to s 4 of the Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT)). The Tribunal has jurisdiction to review the Board's decision, having been declared to be the "responsible Tribunal" for the National Law (s 6).

[2] Pursuant to s 200(b) of the National Law the Board is a (respondent) party to the proceeding. The Committee's decision was presumably made pursuant to a delegation from the Board under s 37(1)(a) of the National Law, although that is not expressly stated.

[3] The Committee's decision was apparently made on 18 May 2022, although there is lack of clarity about that. The decision is recorded as having been made on Wednesday 18 May 2022 - ie the date stated on the opening and final pages of a document entitled "Decisions and actions" of the Committee (who met by videoconference) (Tribunal Book (TB) 15 ff, particularly TB 15 and 22), rather than the later date of Sunday "22 May 2022" (ie not a work day) - ie the date recorded for Dr Taddei's "verbal submission" to the Committee which also appears in that document (at [8], TB 20), and is also the date recorded in the meeting agenda paper. The agenda paper is not in the Tribunal Book, but was filed by the Board on 29 August 2022 as part of the "evidentiary material" (totalling 839 pages not including the opening index) required by s 41(1)(b) of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT) (p 699 ff) (the Section 41 Materials). Nothing turns on whether the Committee met, and made its decision, on Wednesday 18 May 2022 or Sunday 22 May 2022.

[4] Sections 45 and 46(2)(a) of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT).

[5] Section 46(1) of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT).

[6] Section 46(3) of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT).

[7] That is, a bi-collegiate Membership in Orthodontics (MOrth) examination conducted by the Royal College of Surgeons of England and the Royal College of Physicians and Surgeons of Glasgow. In the United Kingdom completion of a three year Master of Science (Orthodontics) plus the MOrth examination was a prerequisite to the award of a Certificate of Completion of Specialist Training (or CCST).

[8] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [15]). The General Dental Council is the statutory regulator of dentists (including specialists) in the United Kingdom, including their registration (Dentists Act 1984 (UK)). The acronym CCST is explained at fn 7.

[9] Specifically the University of Queensland, the University of Western Australia, the University of Adelaide, the University of Melbourne, and the University of Sydney (Supplementary Tribunal Book (STB) 7 to 10).

[10] Likewise Dr Taddei's membership of the Orthodontic Specialists Group of the British Orthodontic Society, and fellowship of the World Federation of Orthodontics, are not a "qualification" for s 58(b).

[11] Being the expression subsequently used in Wu v Nursing and Midwifery Board of Australia [2021] NSWCATOD 183 at [155], when considering Lee.

[12] Chinese Medicine Board of Australia v Lee [2014] QCA 149 at [50]. The s 57(2) pathway does not additionally require that a practitioner is "qualified" under one of the paragraphs (a) to (d) of s 58 for specialist registration.

[13] Section 46(1) of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT).

[14] The Eastman Dental Institute was formed in 1947, and became part of the University College London in 1999 - as did the associated Eastman Dental Hospital (a graduate teaching hospital), which commenced operation (then as a Clinic) in 1930. The Institute is "dedicated to graduate education and research" (TB 54).

[15] Dr Taddei's evidence to the General Dental Council (Appeal Panel): decision 7 January 2020 (TB 292 ff at [8]).

[16] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [4]). The acronym NHS means the National Health Service of England.

[17] Dr Taddei's evidence (transcript p 21).

[18] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [15]). The Appeal Panel recorded that "all" of the other practitioners at the Centre were orthodontic "specialists" at that time.

[19] Dr Taddei's evidence (transcript p 23).

[20] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [12]).

[21] Dr Taddei's letter to the Board dated 18 July 2021 (TB 44 and 45).

[22] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [12]).

[23] Dr Taddei's letter to the Board dated 18 July 2021 (TB 44 and 45).

[24] TB 287. The General Dental Council is the statutory regulator of dentists (including specialists) in the United Kingdom, including their registration (Dentists Act 1984 (UK)).

[25] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [11]). Specifically the National Health Service (Personal Dental Services Agreements) Regulations 2005 (UK), which commenced in 2006 (Dr Taddei's letter dated 11 February 2022 to the Board (TB 500)).

[26] Dr Taddei's evidence (transcript p 29).

[27] Dr Taddei's evidence (transcript p 27).

[28] Dr Taddei's evidence (transcript p 23). The National Health Service of England is one of four publicly funded health care systems in the United Kingdom.

[29] Dr Taddei's evidence (transcript p 30).

[30] Regulation 9 of The European Primary and Specialist Dental Qualifications Regulations 1998 (UK), particularly reg 9(2)(b) and 9(3) (General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [6]).

[31] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [6]).

[32] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [8]).

[33] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [1] and [2]).

[35] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [5] and [10]). Dr Taddei said that he naturally could not submit extensive evidence from "research and academia", since he had worked only in clinical orthodontic practice since 2001 (transcript p 53).

[36] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [11]).

[37] TB 355 to 364. The website of the British Orthodontic Society describes the PAR index as a "fast, simple and robust way of assessing the standard of orthodontic treatment that an individual provider is achieving", which is generally accepted as a "useful tool" which is "primarily designed to look at the results of a group of patients, rather than an individual patient, as there are always a small number of patients where the index does not fully represent the result obtained. The website continues that "a mean PAR score improvement of greater than 70% represents a very high standard of treatment". A PAR score of "[l]ess than 50% shows an overall poor standard of treatment and less than 30% means the patient's malocclusion has not been improved by orthodontic intervention. The website "stressed, however, that the index is designed to look at a large group of patients rather than an individual patient's outcome". The website records that it is "now a statutory requirement of the new NHS orthodontic contract for all performers to monitor treatment outcomes for 20 cases plus 10% of the remainder of their caseload every year using the PAR index".

[38] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [11]).

[39] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [7]).

[40] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [15]).

[41] A copy of Dr Taddei's application was not in evidence.

[42] Dr Taddei evidently renewed his 2014 registration as a general dental practitioner either annually, or at least from 2022 when he relocated to and commenced practice in Darwin, Australia.

[43] APHRA internal policy guide entitled 'Overseas-trained dental specialist registration assessments' (version 1.6, effective from 1 July 2016 as updated on 18 July 2017) (STB 33 at 37).

[44] As accepted by the Board by reference to Dr Lewis's evidence (transcript p 155). See also Dr Taddei's submission dated 19 December 2023 at [11]. Similar practical considerations arose for a psychologist seeking specialist registration as a clinical psychologist in Pereira v Psychology Board of Australia [2014] VSC 1882 at [2] and [4], with Medicare rebates being higher for clients of clinical psychologists than for psychologists with general registration, and a "perception that various organisations are now requiring reference specifically to clinical psychologists".

[45] The Committee's decision was apparently made on 18 May 2022, albeit there is lack of clarity about that (see fn 3).

[46] Australia's Health Workforce Productivity Commission 22 December 2005 (released on 19 January 2006). The Commission recommended national consolidation of health workforce registration and accreditation functions to facilitate consistency across health professions and jurisdictions. The Council of Australian Governments agreed to establish a single national registration scheme for health professionals in July 2006 (A unique and substantial achievement: Ten years of national health practitioner regulation in Australia Ahpra and National Boards 2020 p 2). As contemplated by the National Law, some jurisdictions (including Queensland) have modified parts of the statutory scheme, with such modifications applying locally in that jurisdiction (ie not nationally).

[47] Intergovernmental Agreement for a National Registration and Accreditation Scheme for the Health Professions between the Commonwealth and all states and territories in March 2008. The National Law is not a Commonwealth law. Under the intergovernmental agreement Queensland is the lead or host jurisdiction, and the National Law is set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (as amended from time to time, after approval by the Ministerial Council comprised by Health Ministers from each jurisdiction). The National Law commenced in all states and territories on 1 July 2010, except Western Australia where it commenced on 18 October 2010 after corresponding state legislation was passed (A unique and substantial achievement: Ten years of national health practitioner regulation in Australia Ahpra and National Boards 2020 pp 2, 9, 10 and 15).

[48] Explanatory notes Health Practitioner Regulation National Law Act 2009 (Qld) (p 1).

[49] A unique and substantial achievement: Ten years of national health practitioner regulation in Australia Ahpra and National Boards 2020 p 13.

[50] Explanatory notes Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 (Qld) (which amended the National Law) pp 2 to 3. In 2014 an "independent review found that five health professions accounted for 87.5 per cent of registrants and 95.5 per cent of complaints and notifications in 2012-13 (these professions were dental, medical, nursing/midwifery, pharmacy and psychology). The remaining nine professions accounted for 12.5 per cent of registrants and less than 5 per cent of complaints and notifications" (explanatory notes Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017 (Qld) p 43, per the Review of the National Registration and Accreditation Scheme for health professions by Kim Snowball August 2014 pp 8 and 9).

[51] Independent review of Australia's regulatory settings relating to overseas health practitioners Final Report August 2023 Robyn Kruk p 4 (citing 2022 health workforce data from the Department of Health and Aged Care (Cth)). The review records that some health professions are not regulated under the National Law, including "social workers, speech pathologists, dietitians and exercise physiologists" (p 40).

[52] Independent review of Australia's regulatory settings relating to overseas health practitioners Interim Report April 2023 Robyn Kruk p 1.

[53] Sections 31A and 32(2) of the National Law.

[54] Ahpra is established as a body corporate by s 23(2)(a) of the National Law, and has power to enter contracts, employ staff, and acquire property (s 24). The Ministerial Council, which comprises Commonwealth and State/Territory Ministers responsible for health, may give directions to the Board (and other National Boards) or Ahpra about the policies to be applied by that entity when performing statutory functions, including as to its administrative processes or procedures provided that it does not concern a particular person, qualification or application (s 11).

[55] The current health profession agreement covers the period 2020 to 2025, including schedules which are updated annually. The National Law contemplates that National Boards will enter health profession agreements with Ahpra; thus that power is an exception to the general exclusion on Boards entering contracts (see ss 25(d) and 26).

[56] Health Profession Agreement 2020-2025 cl 1.4.1 and 5.1.1).

[57] Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 (Qld) (ss 33 to 35).

[58] Explanatory notes Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 p 43. Hitherto, pursuant to a local modification to the National Law, the paramountcy of public health and safety was part of Queensland law. This local modification was repealed in 2022, since it was now included in the National Law. (Explanatory notes Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 p 5.)

[59] Originally there were 11 Divisions, but there are now 12 given the insertion of Division 6A by amendment in 2022.

[60] An example is West v Psychology Board of Australia [2014] QCAT 472 regarding "provisional registration" under s 62(2) (Division 3). That provision concerns eligibility for registration "by" imposing conditions (or since 2022 accepting an undertaking), being the same language as in s 57(2) (and s 52(2)). At [68] the Queensland Civil and Administrative Tribunal construed s 62(2) in accordance with the Queensland Court of Appeal's construction of s 52(2) in Chinese Medicine Board of Australia v Lee [2014] QCA 149 (discussed below), but refused provisional registration as a psychologist - particularly because defects in Mr West's qualification could not be remedied "by the imposition of conditions".

[61] Section 83A (and related amendment to s 57(2) (and s 52(2)) was inserted by s 64 of the Health Practitioner Regulation National and Other Legislation Amendment Act 2022 (Qld), which received assent on 21 October 2022. Pursuant to s 2(a) the inserted amendment commenced on a date fixed by proclamation (ie on or after that date).

[62] The Committee's decision was apparently made on 18 May 2022, albeit there is lack of clarity about that (see fn 3).

[63] See s 303 for grandparenting/transitional arrangements, and s 9 together with the Trans-Tasman Mutual Recognition Act 1997 (Cth) for mutual recognition of New Zealand health practitioners.

[64] Board's written submission 4 September 2024 at [3] to [5]. The Board suggested at [4] that in Draper v The Psychology Board of Australia [2013] NSWPST the NSW Psychologists Tribunal could be said to treat the two limbs as a "compound phrase" (when considering s 98(1)(a)(ii) which has the same wording as s 57(b)), however that Tribunal principally focused on the first limb only. The Board accepted that both constructions were open, but did not submit which was legally correct. Rather the Board said that "it is a matter for the Tribunal to determine how to construe s 58(b)", and submitted that in either case specialist registration should be rejected for Dr Taddei (email Lachlan Baird, MinterEllison, to the Tribunal dated 18 September 2024).

[65] This construction was indicated by the Queensland Court of Appeal in Alroe v Medical Board of Queensland [2010] QCA 44; [2011] 2 Qd R 200 at [13] in relation to s 111(1)(b)(ii) of the Medical Practitioner's Registration Act 2001 (Qld), which the National Law replaced in 2010. Section 111(1)(b)(ii) uses the same statutory expression as s 57(b) of the National Law. Likewise, when construing s 303(1)(b) (a grandparenting provision which "postulates two alternative options [or limbs] for demonstrating qualifications" which apply "despite section 53" (s 303(2)), the Queensland Court of Appeal in Lee (at [37] to (38)) considered that the "use of the word "or" [in s 303(1)(b)] clearly makes the first two limbs disjunctive".

[66] In which respect, whilst the preceding health practitioner registration legislation in Queensland and Victoria used similar language to the National Law when comparing overseas qualifications to an "approved qualification" vis-à-vis registration (ie "substantially equivalent" or "based on similar competencies" being the first and second limbs of ss 53(b) and 58(b)), the preceding legislation in Western Australia and the Northen Territory only used the first limb ("substantially equivalent"). See s 111(1)(b)(ii) of the Medical Practitioner's Registration Act 2001 (Qld) and s 5(1)(a) of the Health Professions Registration Act 2005 (Vic), as compared to s 30(3)(c) of the Medical Practitioners Act 2008 (WA) and s 20(3)(c) of the Health Practitioners Act 2004 (NT).

[68] STB 33 ff at 36. Appendix F is entitled 'Summary of decisions relating to dental specialist qualification equivalence assessments', and records that a "Table summarising relevant decisions that lead to an amendment of this policy guide to be populated here - includes legal, National Board, assessment panel, RNC". The Policy Guide in evidence did not include such a table, perhaps because decisions had not yet been "populated" into version 1.6.

The Ahpra website includes a table entitled "Court and tribunal decisions from 2014 (not including NSW)" (with separate links to decisions in 2012 and 2013, and to the NSW Healthcare Complaints Commission website for NSW decisions) which lists "some court and tribunal decisions relevant to the National Law" (most decisions concern professional conduct matters). Although integral to the construction of the statute vis-à-vis registration, the Queensland Court of Appeal's judgment in Lee is not included in that list. However two subsequent decisions of the Queensland Civil and Administrative Tribunal which applied Lee (which is binding in the Queensland judicial hierarchy) are included: Nowlan v Medical Board of Australia 2020 QCAT 287 (provisional registration rejected) and George v Dental Board of Australia [2022] QCAT 5 (specialist registration as an endodontist granted "by" (as in "per force of") the imposition of conditions. These decisions are discussed below.

[70] Pereira v of the Psychology Board of Australia [2014] VSC 417 at [27] to [42]. There is a slight drafting difference between s 98(1)(a)(ii) and s 58(b) (and s 53(b)) in that the preposition "to" appears twice in the former, but only once in the latter. Nothing turns on that.

[71] As referenced in Pereira at [38], Kyrou JA's construction of the term "qualification" in s 57(b) of the National Law accords with the construction of that term in s 111(1)(b)(ii) of the Medical Practitioner's Registration Act 2001 (Qld) (which the National Law replaced) by the Queensland Court of Appeal in Alroe v Medical Board of Queensland [2010] QCA 44; [2011] 2 Qd R 200 at [14]. Section 111(1)(b)(ii) uses the same statutory expression as s 57(b) of the National Law. The Court of Appeal explained (at [14]):

"On the face of it, the comparison required by the first limb of the sub-paragraph [ie s 111(1)(b)(ii)] is that of one type of formal qualification with another. The concept of substantial equivalence calls for a comparison of like with like. Thus, a qualification in the subject specialty considered by the board to be substantially equivalent to a qualification referred to in sub-paragraph (b)(i), must be, on the face of it, a reference to a formal qualification granted by an appropriate professional body, or, perhaps, a governmental authority."

[72] Section 20(3)(c) of the Health Practitioners Act 2004 (NT) provided for registration (including as a dentist, dental specialist, medical practitioner, nurse, physiotherapist and other health professions) where a person had "experience and training in the category of registration or enrolment that the Board considers is at least substantially equivalent to the successful completion of an accredited course in the category of registration or enrolment". Further, a person who was not otherwise eligible could also be registered if the relevant Board was "satisfied that accepting the application and registering or enrolling the person is in the public interest or meets a community need" (s 20(4)).

[73] Arakkal v Medical Board of Australia [2017] WASCA 219 at [108]. The Court of Appeal said that "Another arguable construction is that the reference [in s 58(d)] to a 'qualification ... that under ... a corresponding prior Act qualified the individual for specialist registration' refers to whatever the corresponding prior Act identified as a qualification for registration in a specialty, whether or not that involved a course of study or membership of a professionally recognised organisation".

[74] Board's submission 8 July 2024 at [35] (TB 889).

[75] Specifically the University of Queensland, the University of Western Australia, the University of Adelaide, the University of Melbourne, and the University of Sydney (STB 7 to 10).

[76] The Dental Board (Ahpra) website lists 12 approved dental specialties: dento-maxillofacial radiology, endodontics, forensic odontology, oral medicine, oral and maxillofacial pathology, oral surgery, orthodontics, paediatric dentistry, periodontics, public health dentistry (community dentistry), prosthodontics, and special needs dentistry. The policy guide (as updated on 18 July 2017) lists an additional (13th) dental specialty, oral pathology, but that may be out of date (STB 36).

[78] Policy Guide (STB 33 at 38, 44, 45 and 48).

[79] Policy Guide (STB 33 at 38, 44, 45 and 48).

[80] Policy Guide (STB 33 at 44, 45 and 48).

[81] This judgment is not expressly identified in the text of the policy guide, although it might be included in a table in Appendix F which summarises "decisions relating to dental specialist qualification equivalence assessments". However Appendix F, as filed with the Tribunal, was not "populated" with the foreshadowed table. See fn 68.

[82] This being the Court of Appeal's construction of the word "by" in s 52(2), and thus also s 57(2) for specialist registration given common statutory language (Chinese Medicine Board of Australia v Lee [2014] QCA 149 at [50]).

[83] Chinese Medicine Board of Australia v Lee [2014] QCA 149 at [55].

[84] Lee v Chinese Medicine Board of Australia [2013] QCAT 609 at [14], [16], [37] to [44]. The practitioner completed his qualification in December 2011, about three months prior to applying for registration under the National Law which has regulated acupuncture since 1 July 2012 (hitherto this health profession was unregulated, except in Victoria). This was much less than the "2 years post qualification experience prior to 1 July 2012" which was required for registration under a grandparenting pathway (Chinese Medicine Board of Australia v Lee [2014] QCA 149 at [13]).

The same conditions were imposed by the Chinese Medicine Board when several other newly qualified graduates in acupuncture were registered. That Board subsequently decided that these registrations were legally in error, but that the error could not be rectified. Mr Lee was similarly qualified, but unlike the other graduates his application for registration was rejected. On review Deputy President Horneman-Wren registered Mr Lee on the basis of similar conditions as the other graduates. The object of the conditions included to ensure the "protection of the public".

[85] Lee v Chinese Medicine Board of Australia [2013] QCAT 609 at [26] to [28]. Noting that one of Mr Lee's colleagues (Ms Jenkins) was apparently registered without conditions.

[86] In that respect the Policy Guide states (STB 33 at 45 and 48):

"The size and nature of the deficit [in a qualification] may be too significant to be addressed through supervised practice and/or further training. If this is the case, then the recommendation to the relevant committee of the Board would be to refuse the application."

[87] See Alroe v Medical Board of Queensland [2010] QCA 44; (2011) 2 Qd R 200 at [17], [18] and [22] in relation to s 111(3) of the Medical Practitioner's Registration Act 2001 (Qld), which the National Law replaced in 2010. The statutory language of both Acts is substantially the same for registration and specialist registration (cf s 111(1) to (3) of the Medical Practitioner's Registration Act 2001 (Qld) with s 53 and 57 of the National Law). Specifically the language of s 111(3) of the Medical Practitioner's Registration Act 2001 (Qld) is substantially the same as the language of s 52(2) and 57(2) of the National Law.

[88] Chinese Medicine Board of Australia v Lee [2014] QCA 149 at [51] to [55]. The earlier contrary Tribunal decisions were Susan Margaret McMahon v The Nursing and Midwifery Board of Australia [2013] NSWNMT 4 and Krause v Medical Board of Australia [2013] VCAT 1009. The Court of Appeal otherwise said at [51] and [54] that the facts in those cases were "vastly different" and "well removed" from the position of the practitioner in Lee; registration "by" (as in "per force of") the imposition of conditions was appropriate only for the latter.

[89] McMahon v The Nursing and Midwifery Board of Australia [2013] NSWNMT 4 at [102].

[90] Krause v Medical Board of Australia [2013] VCAT 1009 at [70].

[91] See Lee v Chinese Medicine Board of Australia [2013] QCAT 609 at [33] to [36], where Deputy President Horneman-Wren discussed, and disagreed with, McMahon.

[92] Chinese Medicine Board of Australia v Lee [2014] QCA 149 at [55].

[93] As Gageler J explained in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 at [38] (footnote excluded), where there is a "constructional choice" between several "potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies". See also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70] about the importance of "determining the hierarchy of the provisions" so as to "give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme".

[94] See ss 3 and 3A extracted above for the object and objectives of the National Law, noting that the main guiding principle (and other guiding principles) in s 3A were inserted by amendment in 2022 (after Lee in 2014).

[95] This being the Court of Appeal's construction of the word "by" in s 52(2) (and thus also s 57(2)) (Chinese Medicine Board of Australia v Lee [2014] QCA 149 at [50]). The decision in George was not identified in the policy guide, however it occurred after the version of the guide updated on 18 July 2017 which was filed with the Tribunal.

[96] George v Dental Board of Australia [2022] QCAT 5 at [4] to [8].

[97] George v Dental Board of Australia [2022] QCAT 5 at [9] to [33].

[98] George v Dental Board of Australia [2022] QCAT 5 at [43].

[99] George v Dental Board of Australia [2022] QCAT 5 at [42].

[100] George v Dental Board of Australia [2022] QCAT 5. In West v Psychology Board of Australia [2014] QCAT 472 at [68] the Queensland Tribunal (Deputy President Horneman-Wren) accepted that the statutory construction in Lee applied, but did not provisionally register the applicant under s 62(2) - since his Honour was "not satisfied that the eligibility requirements could be met by the imposition of conditions". Likewise in Nowlan v Medical Board of Australia (No 3) [2020] QCAT 287 at [24] the Queensland Tribunal accepted that the statutory construction in Lee applied, but did not provisionally register the applicant under s 62(2) - since it was not "appropriate in the circumstances of this case" to do so (at [29]). In this matter the applicant, Mr Nowlan, was awarded a degree of Bachelor of Medical Studies by the University of Queensland, but due to failing several subjects did not complete and was also excluded from enrolment for the degrees of Bachelor of Medicine/Bachelor of Surgery - being an "approved qualification" for general registration as a medical practitioner). Conditions could not be imposed to "overcome the lack of appropriate academic qualifications"; doing so was "inconsistent with the objectives of the National Law" (at [29]).

[101] See Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 p 492 (at [4]), and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107 at [135].

[102] In D'Rozario v Dental Board of Australia [2015] NSWCATOD 19 at [51] to [71] the NSW Tribunal accepted the Dental Board's submission that, by reference to Lee (and without challenging the Queensland Court of Appeal's construction of s 52(2)), it did "not have a general discretion to accord specialist registration outside of the legislative guidelines", it being common ground that there were no conditions that could be imposed as per Lee to rectify deficiencies in Dr D'Rozario's qualification. In Taylor v Medical Board of Australia [2018] NSWCATOD 50 at [53] the NSW Tribunal applied Lee, but in the context of rejecting a practitioner's stay application against conditions imposed by the Medical Board (particularly to address her "significant health problems" (at [1])) - since, as submitted by that Board (at [38] to [41]), staying the conditions would mean that the practitioner's general registration pursuant to s 52(2) would "fall away" and cease. This was not the outcome sought by the practitioner, who sought that her general registration continue unconditionally. In Linquist v Nursing and Midwifery Board of Australia [2018] NSWCATOD 183 at [76] to [80] a Principal Member of the NSW Tribunal agreed with the reasoning in Lee (and thus was not persuaded it was "plainly wrong") with a view to a reconstituted (multi-member) Tribunal later deciding whether or not to register a nurse (by imposition of conditions) who did not satisfy recency of practice requirements. However that decision was overturned by the NSW Supreme Court in Linquist v Nursing and Midwifery Board of Australia [2019] NSWSC 978, because the Tribunal was not properly constituted by a single Member. The matter was remitted and Ms Linquist was given leave to reopen her case in Linquist v Nursing and Midwifery Board of Australia [2019] NSWCATOD 185, but the ultimate outcome does not appear in any published decision. In Wu v Nursing and Midwifery Board of Australia [2021] NSWCATOD 183 at [155] the NSW Tribunal accepted as per Lee that "in an appropriate case, a person who does not meet a registration standard for provisional registration, may, by the imposition of appropriate conditions, gain that registration", but did not do so on the facts of that matter. The final NSW decision is Nowlan v Medical Board of Australia (No 3) [2022] NSWCATOD 112, which is discussed below.

[103] The NSW Tribunal heard Nowlan on 6 May 2022 (ie after the Queensland Tribunal's decision in George), and was referred to George in the Medical Board's submissions (see at [38]).

[104] See fn 100. Section 199(2) of the National Law identifies the "appropriate responsible tribunal" for an appellable decision by reference to various criteria including the place of study or practice, and residence. For Mr Nowlan in 2020 the responsible tribunal was a Queensland Tribunal, but in 2022 it was the NSW Tribunal.

[105] This submission focused upon the fact that the appeal in Lee was upheld on a different basis to the construction of s 52(2) (which was fully argued as a principal ground of appeal), namely the omission of the Medical Board and the Queensland Tribunal (on review) to apply the second limb of s 303(1)(b). This is a grandparenting provision whereby an individual may be "qualified" for general registration despite a "qualification" being insufficient under s 53. This ground was evidently identified by the Queensland Court of Appeal during the hearing, since it was not a "ground advanced by the [Medical Board], either before QCAT, or the Court of Appeal (see extrajudicial observations by the President of the Court of Appeal, Justice McMurdo, Lessons Learnt from Appeals QCAT Conference 19 May 2016 pp 2 and 9). The NSW Tribunal indicated at [63] that this submission "may" be correct, but did not decide this issue.

[106] As explained above at fn 102, in 2018 the Medical Board accepted that the Queensland Court of Appeal's construction in Lee was correct in Taylor v Medical Board of Australia [2018] NSWCATOD 50 at [38] to [41] (as did the NSW Tribunal at [53]) - but is entitled to alter its position.

[107] Nowlan v Medical Board of Australia [2022] NSWCATOD 112 at [59] to [75].

[108] Insofar as there may be some uncertainty or doubt, from a regulatory perspective, regarding the Queensland Court of Appeal's construction in Lee (including the ambit of the power to register by imposition of conditions), it is open to the Parliament to provide clarification through legislative amendment. That is a policy question. In that respect the Independent review of Australia's regulatory settings relating to overseas health practitioners Final Report August 2023 Robyn Kruk included the following recommendation under a heading "Expand fast track registration pathways" (as explained on p 10), its stated subtheme being to "Better recognise health practitioner experience and skills" (recommendation no 10, p 14; also pp 9 and 54):

"Ensure registration assessment for all registered professions explicitly recognises skills and experience in addition to qualifications and training pathways, with conditions on registration used as a temporary risk mitigation strategy where appropriate.

Legislate recognition of skills and experience to avoid doubt."

[109] Chinese Medicine Board of Australia v Lee [2014] QCA 149 at [47] to [49]. See also George v Dental Board of Australia [2022] QCAT 5 at [38].

[110] Wu v Nursing and Midwifery Board of Australia [2021] NSWCATOD 183 at [155]. The NSW Tribunal accepted that "in an appropriate case, a person who does not meet a registration standard for provisional registration, may, by the imposition of appropriate conditions, gain that registration", but did not do so on the facts of this matter.

[111] A copy of Dr Taddei's application was not in evidence.

[112] Ahpra letter to Dr Taddei dated 2 June 2021 (TB 474 ff).

[113] Ahpra letter to Dr Taddei dated 2 June 2021 (TB 474 ff).

[114] Nor is this pathway for registration identified on the websites of the Board and Ahpra, which the Tribunal has perused. By contrast, as contemplated by the policy guide which said that "relevant information" would be "published on the board's website", detailed information is provided for practitioners about the registration pathways in ss 53(a) to (d) and 58(a) to (d), including the qualification equivalence criteria.

[115] Dr Taddei completed courses by providers for the Inivisalign (Clear Aligners) (undated), the Damon System (Passive Self-Litigating Orthodontics) in 2007, and the Incognito System (Lingual Braces) in 2009 (TB 446 to 449).

[116] Dr Taddei's evidence (transcript p 29) (corrected as per audio of hearing 17 July 2024 ~1 hr 11 min 20 sec).

[123] In that respect, as the Appeal Panel of the General Dental Council explained, the "academic or research work" pathway was not narrowly construed. It required require consideration of all of Dr Taddei's "dental qualifications, knowledge or experience, wherever acquired which are relevant". See General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [6]).

[124] Record of discussion, Equivalence Assessment Panel, 7 October 2021 (TB 479).

[125] Record of discussion, Equivalence Assessment Panel, 7 October 2021 (TB 478 ff).

[126] Record of discussion, Equivalence Assessment Panel, 7 October 2021 (TB 478 ff).

[127] Record of Committee's 'Decisions and Actions' 17 November 2021 (Section 41 Materials p 11 ff).

[128] Committee agenda paper 17 November 2021 (Section 41 Materials p 689 ff).

[129] Committee agenda paper 17 November 2021 (Section 41 Materials p 692).

[130] Committee agenda paper 17 November 2021 (Section 41 Materials p 695).

[131] Section 41 Materials p 11. The content of the record was "Confirmed by members during the meeting" (p 16).

[132] Section 41 Materials p 696 at [18].

[133] In that respect, as the Appeal Panel of the General Dental Council explained, the "academic or research work" pathway was not narrowly construed. It required require consideration of all of Dr Taddei's "dental qualifications, knowledge or experience, wherever acquired which are relevant". See General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [6]).

[134] Wu v Nursing and Midwifery Board of Australia [2021] NSWCATOD 183 at [155]. The NSW Tribunal accepted that "in an appropriate case, a person who does not meet a registration standard for provisional registration, may, by the imposition of appropriate conditions, gain that registration", but did not do so on the facts of this matter.

[137] Dr Taddei was also self-represented before the General Dental Council, including its Appeal Panel.

[141] TB 500. Dr Taddei's NHS prescribing profile is at 658 ff.

[142] TB 500. Dr Taddei's NHS prescribing profile is at 658 ff.

[143] TB 500. The acronym AQF means Australian Qualifications Framework.

[144] Email Dr Leedham to Ahpra regulatory officer dated 11 May 2022 (TB 685).

[145] Record of Committee's 'Decisions and Actions' 17 November 2021 (Section 41 Materials p 11 ff).

[146] The Committee's decision was apparently made on 18 May 2022, albeit there is lack of clarity about that (see fn 3).

[147] Committee agenda paper 18 May 2022 (Section 41 Materials p 699 ff at 702, 708 and 710).

[148] The Queensland Tribunal decided George on 3 February 2022. The NSW Tribunal conducted a hearing in Nowlan on 6 May 2022, and decided that matter on 6 October 2022.

[150] Section 41 Materials p 11 ff (12 to 14).

[151] TB 15 ff (19 to 20). The record was "confirmed by the Committee via e-mail resolution 9 June 2022", presumably so that the additional reasons could be finalised and added (TB 22).

[153] Chinese Medicine Board of Australia v Lee [2014] QCA 149 at [55].

[156] On 21 June 2022, five days after Ahpra's letter dated 16 June 2022 (but prior to the NSW Tribunal's decision in Nowlan, Ahpra published a statement on its website (in a table entitled "Court and tribunal decisions of 2014 (not including NSW)") which summarised the Queensland Tribunal's decision in George (together with an Austlii link to that decision) as follows:

"While the tribunal agreed with the Board that Dr George was not qualified, it chose to exercise a discretion to grant conditional registration due to him holding a relevant qualification, his additional training and experience and his connection with the specialist training program.

In February 2022, the tribunal granted Dr George specialist registration but imposed a condition requiring Dr George to continue to be associated with the approved qualification he taught until the first student/s he was teaching had graduated."

The NSW Tribunal's subsequent decision by the NSW Tribunal in Nowlan has not been published on the Aphra website.

[157] Board's written submission 4 September 2024 at [31] to [33].

[158] Noting that is open to the Board to advance reasoning as a basis to legally justify the Committee's decision, even if that basis was not identified by the Committee at the time.

[159] As discussed above, the Ahpra letter dated 16 June 2022 incorrectly said that specialist registration under s 57(1)(a) required that Dr Taddei was "qualified" under s 58(a) to (d), thus denying the existence of the s 57(2)) pathway whereby specialist registration may occur "by" (as in "per force of") the imposition of conditions (as per Lee, as applied in George).

[160] A compulsory conference is "held in private", however on 7 October 2022 the Tribunal gave leave for an Ahpra officer to attend (s 110(2) and (5) of the Northern Territory Civil and Administrative Act 2014 (NT)).

[161] Section 108 of the Northern Territory Civil and Administrative Act 2014 (NT).

[162] Orthodontics is one of 12 recognised dental specialties; it is not itself a "health profession".

[163] Board's submission 8 December 2023 at [14] to [17]. Dr Taddei's submission 18 December 2023 at [8].

[164] President O'Reilly noted at [8] that there is "no requirement that a National Board includes members with specialist registration"; rather "eligibility is determined more broadly by registration as a health practitioner" in the relevant health profession. In that respect the six members of the Committee who considered Dr Taddei's application on 17 November 2021 and 18 May 2022 did not include an orthodontist (as noted above).

[165] Dr Taddei's submissions dated 24 June 2024 focused solely on compliance with s 58(b). The Board's submissions dated 8 July 2024 at [15] identified the "provisions of the National Law most relevant to the Proceeding", namely s 57(1) and s 58(a) and (b). There was no mention of s 57(2).

[166] Alroe v Medical Board of Queensland [2010] QCA 44; [2011] 2 Qd R 200 at [14].

[167] Submission by counsel for Dr Taddei (transcript p 143); submission by counsel for the Board (transcript p 176).

[168] Dr Lewis explained in his report dated 17 May 2024 that when Dr Mahony studied at the Eastman Institute a two year course in orthodontics "was the extent of the full training at that institution" (TB 710).

[169] Dr Lewis's evidence (transcript p 112). Dr Lewis has recently been requested to resume his accreditation work, and has agreed to do so (transcript p 112).

[170] General Dental Council (Appeal Panel) decision 7 January 2020 (TB 290 ff at [7]).

[171] The Board suggested an additional option. It said that since revisions in December 2023 it has been open to Dr Taddei to sit the (revised) MOrth examination, since he is already "registered as a specialist in the UK", having been admitted by a regulatory pathway which recognised "academic achievement" (Membership in Orthodontics Part 2 Royal College of Surgeons of England, STB 12 ff (13)). The MOrth examination was originally in two parts, general dentistry and orthodontics. The general dentistry component has been discontinued (Change to bi-collegiate MOrth examination (Discontinuation of MOrth Part 1) Bi-collegiate statement, December 2023, STB 11). The Board accepted that completion of the MOrth examination would be an additional "qualification" which under s 58(b) would be comparatively considered "together" with Dr Taddei's 2001 two year Master of Science (Orthodontics) qualification. The Board said that this would place Dr Taddei in a "much better" position, but stopped short of accepting that s 58(b) would be satisfied.

Dr Lewis was circumspect. He emphasised in oral evidence that a "comparative exercise" must still occur, and that "Simply holding a MOrth on top of his current thing [the two year 2001 Master of Science (Orthodontics)], won't help" vis-à-vis satisfying s 58(b); "the 3 year approved post graduate program would still be lacking" (expert report Dr Lewis 11 July 2024 STB 32). Dr Lewis's circumspection casts significant doubt that this is realistically a pathway to specialist registration in Australia for Dr Taddei under s 58(b).

Dr Taddei said that, in fact, it has been open for him to sit the MOrth examination since specialist registration in the United Kingdom on 24 January 2020. However from his perspective completion of the MOrth examination was inutile, given his extant and pre-existing registration as a specialist. (See transcript pp 16, 17, 132, 199 to 201.)

[172] Dr Lewis's evidence (transcript pp 129 to 130). The University of Otago examination cannot be completed online.

[173] Board's submission 8 July 2024 at [35] (TB 889).

[174] Whilst noting that, in their recommendation and reasons, the Equivalence Assessment Panel and the Committee did not clearly distinguish between the first and second limbs of s 58(b).

[175] As was common ground, the comparison is with a presently "approved qualification" under the National, not an Australian qualification which was extant in 2001.

[176] Dr Taddei's evidence (transcript pp 18, 20, 42 and 43).

[177] Dr Mahony's evidence (transcript p 75).

[178] Expert report Dr Mahony 11 December 2023 (TB 722 at [1.2] and [1.3]).

[179] Dr Mahony's evidence (transcript p 75).

[180] Expert report Dr Mahony 11 December 2023 (TB 725 at [6.5]).

[182] Expert report Dr Mahony 11 December 2023 (TB 730 at [7.2]).

[183] George v Dental Board of Australia [2022] QCAT 5 at [32] to [33].

[184] Expert report Dr Lewis 4 April 2023 (TB 697).

[185] Expert report Dr Lewis 4 April 2023 (TB 710 to 711).

[187] Sections 3(2)(a), and s 3A(1)(a) and (b).

[188] Dr Taddei's written submission 23 August 2024 at [31] to [33] (footnote excluded).

[189] Dr Taddei's written reply 16 September 2024 at [39].

[190] Board's written submission 4 September 2024 at [31] to [33]. Typographical, spelling or grammatical errors appear in the original of this, and other, quotations herein.

[191] George v Dental Board of Australia [2022] QCAT 5 at [41].

[192] George v Dental Board of Australia [2022] QCAT 5 at [42].

[193] Sections 3(2)(a) and 3A(1)(a) of the National Law. Section 3A was introduced by amendment later in 2022, and thus was not in force when George was decided. However in Queensland a local modification to the National Law nonetheless provided for the paramountcy of public health and safety (see fn 58).

[194] See generally the High Court's discussion of the term "appropriate" as used in a statutory provision in Vella v Commissioner of Police (NSW) [2019] HCA 38 at [50] to [54] (which reproduces a dictionary definition).

[195] Chinese Medicine Board of Australia v Lee [2014] QCA 149 at [55]. See Lee v Chinese Medicine Board of Australia [2013] QCAT 609 at [43] for detail of the Queensland Tribunal's orders.

[196] Board's written submission 4 September 2024 at [37] fn 1.

[197] Nowlan v Medical Board of Australia (No 3) [2020] QCAT 287 at [27].

[198] See MinterEllison correspondence to Dr Lewis dated 31 January 2023 (TB 687 ff), 8 March 2024 (TB 699 ff), and 11 July 2024 (STB 5 ff), which did not explain the operation of the s 57(2) pathway (as construed in Lee, and applied in George) when requesting his opinion as to whether "Dr Taddei should be granted specialist registration subject to conditions" (TB 689). As part of his brief Dr Lewis was provided with internal Ahpra/Board documentation and Ahpra correspondence to Dr Taddei, but as detailed above in the Tribunal's view those documents were inadequate and legally incorrect in their explanation of the existence and/or operation of the s 57(2) pathway.

[199] Expert report Dr Lewis 4 April 2023 (TB 695 to 696).

[200] See MSP Legal correspondence to Dr Mahony dated 11 December 2023 (enclosing the Section 41 Materials) (TB 715 ff), which did not explain the operation of the s 57(2) pathway (as construed in Lee, and applied in George) when requesting his opinion as to whether Dr Taddei could "be granted specialist registration subject to conditions". Again in the Tribunal's view the internal Ahpra/Board documentation and Ahpra correspondence to Dr Taddei (in the Section 41 Materials) were inadequate and legally incorrect in their explanation of the existence and/or operation of the s 57(2) pathway.

[201] Expert report Dr Mahony 11 December 2023 (TB 727 at [6.9]).

[202] Section 46(1) of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT).

[203] Section 46(1) of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT).

[204] Section 47 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT) provides, for a review, that the "decision maker must, at the request of the Tribunal, assist the Tribunal so that it can make its decision".

[205] Dr Taddei's written reply 16 September 2024 at [40].