FEDERAL COURT OF AUSTRALIA Schulz v Medical Board of Queensland [2001] FCA 1771 ADMINISTRATIVE LAW - mutual recognition - medical practitioner - conditions imposed on registration the same as those imposed in first state - whether obligation on registration authority to consider whether to exercise its discretion to waive conditions PRACTICE & PROCEDURE - whether Administrative Appeals Tribunal had jurisdiction to hear and determine application - whether there was a reviewable decision Statutes Administrative Appeals Tribunal Act 1975(Cth) s 25 Mutual Recognition (Qld) Act 1992 s 33(1) Mutual Recognition Act 1992 (Cth) ss 16, 17, 20, 33, 34 Cases The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 Referred to JOHN SCHULZ V MEDICAL BOARD OF QUEENSLAND NO Q146 of 2001 KIEFEL J BRISBANE 12 DECEMBER 2001 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q146 OF 2001 ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: JOHN SCHULZ APPLICANT AND: MEDICAL BOARD OF QUEENSLAND RESPONDENT JUDGE: KIEFEL J DATE OF ORDER: 12 DECEMBER 2001 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q146 OF 2001 ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: JOHN SCHULZ APPLICANT AND: MEDICAL BOARD OF QUEENSLAND RESPONDENT JUDGE: KIEFEL J DATE: 12 DECEMBER 2001 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The issue for determination in this application is whether the Administrative Appeals Tribunal had jurisdiction to hear and determine the application for review. That question turns upon whether there was a reviewable decision made by the Medical Board of Queensland with respect to the applicant's right to practice in Queensland. 2 The applicant is a specialist medical practitioner in the field of orthopaedics and was registered in that regard in a number of Australian states. The Medical Board of Western Australia informed him, by letter dated 2 August 2000, of its findings with respect to allegations of carelessness or negligent treatment of certain of his patients. After finding against him in some respects it imposed conditions upon his right to practice, in these terms: "Mr Schulz having rejected the opportunity to enter a plea of mitigation, the Board has issued the following conditions on practice: 1. Mr Schulz to be excluded from all forms of medical practice other than that undertaken as part of a comprehensive training programme in a teaching hospital. Such a programme to be acceptable to the Board and following the advice of the Australian Orthopaedic Association, and completed to the satisfaction of the Board. 3 The applicant applied for re-registration in Queensland. In this application he drew to the attention of the Queensland Medical Board the existence of the decision of the Medical Board of Western Australia. He added that he was appealing against both verdict and penalty, but made no further submissions on the matter. At its meeting on 12 September 2000 the Queensland Medical Board resolved: "(i) pursuant to Section 33(1) of the Mutual Recognition (Qld) Act 1992 the following condition be placed on Dr Schulz' registration:- "Dr Schulz is excluded from all forms of medical practice other than that undertaken as part of a comprehensive training progamme in a teaching hospital. Such a programme must be acceptable to the Board and following the advice of the Australian Orthopaedic Association, and must be completed to the satisfaction of the Board."; (ii) Dr Schulz be advised accordingly and he be requested to advise the Board of the outcome of his appeal of the decision made by the Medical Board of Western Australia." 4 The matter came before the Queensland Medical Board pursuant to the Mutual Recognition Act 1992 (Cth) and the Mutual Recognition (Qld) Act 1992. The Commonwealth and the State Acts are in the same terms. I shall refer to both as the "MRA". They provide that a mutual recognition principle applies to certain occupations and for an entitlement in a person to be registered for an equivalent occupation in a second State, after first being registered in a State (Part 3, ss 16 and 17). Registration in the first State is a sufficient ground of entitlement to further registration (s 20(1)) and continued registration (s 20(3)). Section 20(5), provides: (5) The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances… if it were registration effected apart from this Part, unless they are conditions that apply to the person's registration in the first State …" 5 Section 33 deals with the effect of disciplinary action upon a person's registration: "33 Disciplinary action (1) If a person's registration in an occupation in a State: (a) is cancelled or suspended; or (b) is subject to a condition; on disciplinary grounds, or as a result of or in anticipation of criminal, civil or disciplinary proceedings, then the person's registration in the equivalent occupation in another State is affected in the same way. (2) However, the local registration authority of the other State may reinstate any cancelled or suspended registration or waive any such condition if it thinks it appropriate in the circumstances. (3) This section extends to registration effected apart from this Act. (4) This section has effect despite any other provisions of this Part." 6 And s 34, in relevant part, provides: (1) Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Tribunal for review of a decision of a local registration authority in relation to its functions under this Act. (2) In subsection (1): decisionhas the same meaning as in the Administrative Appeals Tribunal Act 1975." 7 Section 25 Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides in subss (1), (4) and (5): "(1) An enactment may provide that applications may be made to the Tribunal: (a) for review of decisions made in the exercise of powers conferred by that enactment; or (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment; … (4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment. (5) For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing." 8 The Administrative Appeals Tribunal determined that, although the application was not frivolous or vexatious, nevertheless it had no jurisdiction. In particular it concluded that s 33 did not provide for a reviewable decision. The Tribunal was limited, relevantly, to whatever arose for consideration under s 20(5) and the conditions imposed by the Medical Board of Queensland were the same as those imposed in Western Australia. There was no further jurisdiction to exercise. 9 The applicant's contention is that the Queensland Medical Board was wrong in imposing the same conditions and that it should have exercised its discretion under the MRA. Section 34(1) of the MRA provides for review by the Administrative Appeals Tribunal of the decision by the Board not to do so. 10 Section 33(1) MRA provides for the automatic imposition of the same condition, or other disciplinary action, where a person's registration has been rendered subject to that condition in another State. It does not call for any decision itself on the part of the second State. No duty, on the part of the Queensland Medical Board, can be said to arise under it. 11 Section 33(2) does provide the Board with power, inter alia, not to impose a condition which had been imposed by the disciplinary authority in the other State. The Board did not exercise that power in this case and it seems clear enough that its resolution merely recorded, in a formal way, the effect that s 33(1) had had. It could not therefore be said to have made a decision in the exercise of the powers given to it by statute, such as would give jurisdiction to the Tribunal under s 25(1) AAT Act. It remains to consider whether the Board can be said to have failed to consider the exercise of its discretion in his favour. The contention assumes the existence of an obligation to do so. 12 There is nothing in s 33 which, in my view, can be read as requiring the Board to consider whether or not to impose a condition in every case. To the contrary, that would appear to cut across the intended, automatic, operation of s 33(1). There is no duty arising from the language of the statute which it could be said the Board has refused to perform. 13 A duty can also arise where an application is properly made to a body such as the Board for its exercise: see The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 398. I put to one side that the relief which might be given in such a case where the exercise of jurisdiction is declined is different from that sought here. No such request was made of the Board in the present case. The applicant explained that he was, at the time, unfamiliar with the provisions of s 33. I can see nothing in the circumstances of the case which would otherwise have required the Board to turn its mind to the matter. Section 25(5) AAT Act does not assist the applicant. That provision recognises that an obligation to decide might arise in a statute, but does not itself create it. The refusals to which it refers are those which are deemed to have occurred because of the existence of such an obligation and a time limit within which the decision had to be made. 14 Reference was also made to s 20(5), in support of the contention that the Board could be expected to consider what, if any, conditions to impose. The provision would appear to allow a local registration authority to add conditions where another State has not done so. In that process it requires consideration of what might be a comparable condition in the other State. It would not seem to me to have application in circumstances where a condition has automatically been applied to registration, as a result of disciplinary action. Where that occurs the second registering authority might consider whether it should apply at all. This is a different power to that given under s 20(5). 15 There was no decision and no refusal capable of providing the AAT with jurisdiction under its Act. The application will be dismissed. I can see no basis for making other than the usual order for costs, one which follows the event of success or failure. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate: Dated: 12 December 2001 For the Applicant: In Person Counsel for the Respondent: Ms E Ford Solicitor for the Respondent: Phillips Fox Date of Hearing: 22 October 2001 Date of Judgment: 12 December 2001