Appellant v Respondent

1 The Medical Board of Australia ('the Board'), which regulates the Australian medical profession, seeks leave under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') to appeal from a decision of the Tribunal ('VCAT') given on 6 May 2021.[1] The proposed appeal has been heard together with the application for leave. Appeals under s 148 of the VCAT Act may only be brought on a question or questions of law.

2 The decision of VCAT under challenge was, in effect, a decision to set aside a decision of the Board to suspend the registration of the respondent, Dr Rizwan Sami, as a medical practitioner.

3 Essentially, the Board raises a single point as a question of law and as its proposed ground of appeal, although the point was expressed in several ways in the Board's notice of appeal and was then significantly modified in various respects in oral argument. It was and remains a point of statutory construction only. Accordingly, subject to any relevant considerations of precedent, it falls to be decided by this Court by reference to the text, context and purpose of the relevant legislation.[2]

4 In Australia, 16 health professions, including the medical profession, are regulated by a scheme of uniform, or nearly uniform, legislation. The centrepiece is the Health Practitioner Regulation National Law ('the National Law'), which is a schedule to an Act of the Queensland Parliament[3] and which, as in force from time to time, is picked up in Victoria by s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic). The present case turns on the proper interpretation of s 156(1)(a) of the National Law. Under s 156(1)(a), if the 'National Board' for a profession 'reasonably believes' that, because of the conduct, performance or health of a registered health practitioner, the practitioner poses a 'serious risk' to persons and that it is necessary to take 'immediate action' (as defined) to protect public health and safety, the Board may take such action. The kinds of 'immediate action' that may be taken are exhaustively specified in s 155. They include the suspension of a health practitioner's registration. Generally speaking, at least, immediate action under s 156(1)(a) (or under other provisions of s 156(1)) is 'designed to operate for an interim period, until an investigation or disciplinary proceeding with respect to the [health] practitioner is able to be concluded'.[4]

5 Most decisions of a National Board to take immediate action under s 156(1)(a) are appellable, by the registered health practitioner or student concerned, to 'the appropriate responsible tribunal', pursuant to ss 199-202 of the National Law. In Victoria, the appropriate responsible tribunal for appeals is VCAT.[5]

6 Not uncommonly, a National Board or an appellate tribunal contemplating whether to take 'immediate action' in relation to a registered health practitioner under s 156(1)(a) of the National Law will be faced with conflicting information or disputed claims about past events, present circumstances or likely future events. This case relates to the implications of such a conflict or dispute for decision-making under s 156(1)(a).

7 When this matter was before VCAT, on appeal by Dr Sami from the Board, VCAT was confronted with information that was conflicting, in several respects, about what had happened on a particular occasion, some two years earlier, as between Dr Sami and another person. VCAT did not accept that it needed to resolve those conflicts before determining whether or not to uphold the Board's contention that Dr Sami's registration should remain suspended under s 156(1)(a).[6] VCAT was satisfied that, on all of the material before it, it could, in this case, make the assessments that VCAT considered to be required by s 156(1)(a) - being assessments that VCAT considered to be concerned, at least principally, with present and future _risk - _without resolving the conflicts as to the past events.

8 The legal issue before this Court is whether, or to what extent or in what circumstances (if any), in matters that involve conflicting information or disputed claims about past events, the relevant National Board or the appellate tribunal, as the case may be, is obliged, by the express or implied terms of s 156(1)(a), to form a reasonable belief that particular past events either did occur or did not occur. In other words, the legal issue is whether, or to what extent or in what circumstances (if any), the National Board or the appropriate responsible tribunal must, by virtue of s 156(1)(a), choose between competing versions of disputed past events (or at least adopt its own version of those events) - by way of forming a reasonable belief in that regard - before deciding whether to take 'immediate action' under s 156(1)(a).

9 As will be seen, s 156(1)(a) itself certainly does not impose any such obligation in express terms. And, as already mentioned, the powers conferred by s 156(1)(a) generally fall to be exercised, if at all, only on an interim basis and often in circumstances thought to be urgent. Nevertheless, strange as it may seem, the Board originally contended in this case that s 156(1)(a) (itself) does indeed impose on National Boards and on appellate tribunals - as a precondition to making a decision either way - an absolute obligation of the kind just mentioned. In all of the written material filed on behalf of the Board in this Court, it was contended, in effect, that the obligation was applicable in every case involving disputed past facts, without exception. However, during oral argument, after some testing of the Board's case, counsel for the Board came to submit, in effect, that there were three situations in which the putative statutory obligation would not apply. The first suggested situation is where the dispute does not extend to facts of a certain class, variously described as facts that are 'centrally important'[7] or 'core'[8] or 'essential'[9]. It seems that, where the disputed facts are not of that class, it would, according to what the Board now says, be open to make a decision to take, or to not take, immediate action under s 156(1)(a), as the National Board or the tribunal sees fit, without resolving the differences. The second suggested situation is where the Board or tribunal validly finds that, even if everything 'centrally important' or 'core' or essential' which has been alleged or raised against the practitioner as to past events were true, there would be no 'serious risk'. In this (second) situation, according to what the Board now says, there would be no need to resolve the differences because a decision not to take immediate action would necessarily follow in any event.[10] The third suggested situation is where the Board or tribunal validly finds that it cannot, on the material before it, form a reasonable belief one way or the other. In this (third) situation, according to what the Board now says, there would be no obligation to 'do the impossible'. As a result, once again, the decision would have to be, the Board says, a decision not to take immediate action under s 156(1)(a).[11]

10 Until almost the last moment of the hearing, the Board in its submissions made no distinction between the position of a National Board and the position of an appellate tribunal in relation to a matter arising under s 156(1)(a). However, towards the very end of his oral submissions in reply, junior counsel for the Board appeared to submit that there is, or that there may be, a relevant difference in this regard.[12] I will deal with that matter in due course.

11 In relation to Dr Sami's matter in VCAT in particular, the Board submits, first, that the dispute did extend to allegations of fact that were 'centrally important' or 'core' or 'essential', but that those allegations were left undetermined by VCAT;[13] second, that VCAT did not find that there would have been no serious risk to persons even if all of the 'centrally important', 'core' or 'essential' allegations were true;[14] and, third, that VCAT did not find that it was impossible to form a reasonable belief as to the events in question.[15] Hence, according to the Board, VCAT's decision was necessarily affected by an error of law constituted by a misinterpretation or misapplication of s 156(1)(a). And, according to the Board, the alleged error was a vitiating one because the outcome might otherwise have been different.

12 Dr Sami submits that s 156(1)(a) does not have the effect that the National Board or the appellate tribunal must always, or generally, accept or adopt a particular version of disputed past events (to the extent of forming a reasonable belief in that regard) as a precondition for taking or not taking immediate action under that provision.[16] According to Dr Sami, s 156(1)(a) does not confine to the three situations now suggested by the Board the decision-maker's freedom to leave disputed questions of past fact undetermined. Alternatively, Dr Sami submits, in effect, that the interpretation suggested by the Board could only be applicable in relation to the taking of immediate action, not in relation to declining or omitting to take immediate action. Finally, in the further alternative, Dr Sami submits that any error of law made by VCAT was immaterial and therefore non-vitiating.[17]

13 In my view, it is quite clear that the Board's construction of s 156(1)(a), in all of its variations, is out of harmony with the text, context and purpose of that provision. Hence, apart from any considerations of precedent, it would be quite clear that the Board's construction is wrong. On the other hand, many prior cases relating to s 156(1)(a) of the National Law have been decided by courts and tribunals, and some of those cases will need to be considered in due course. The Board relies principally on the unreported decision of the Court of Appeal of Western Australia in Bernadt v Medical Board of Australia ('Bernadt'),[18] delivered in 2013. However, in my view, as will be explained, Bernadt does not require that s 156(1)(a) be interpreted and applied by this Court in the manner (or in any of the manners) advanced by the Board in the present case. Nor does any other relevant authority so require. None of the constructions of s 156(1)(a) advanced by the Board should be accepted.

14 Leave to appeal will be granted[19] but, for the reasons summarised above and elaborated below, the appeal will be dismissed.

15 As mentioned above, the regulation of medical and other health practitioners in Australia is governed by legislation that is uniform, or nearly uniform, across all jurisdictions.[20] The various State and Territory application Acts implement, and sometimes modify, the provisions of the National Law for each jurisdiction. In Victoria, the application Act makes no modifications to the National Law.

16 The Australian Health Practitioner Regulation Agency ('AHPRA') is established by the legislation as the national authority to co-ordinate the administration and implementation of the scheme.[21] As indicated above, the National Law also provides for the establishment of a separate 'National Board' for each health profession.[22] AHPRA carries out statutory assessments and investigations of various kinds on behalf of the National Boards and at their direction.

17 Part 8 of the National Law deals principally with the health, performance and conduct of registered health practitioners and registered students. In the 14 Divisions of Part 8, provision is made for numerous different processes and procedures in that regard. The Part provides for mandatory and voluntary notifications to AHPRA of 'notifiable conduct', as defined;[23] for the preliminary assessment by National Boards of notifications;[24] for the taking, as already mentioned, of certain kinds of action, defined collectively as 'immediate action', by National Boards in relation to registered health practitioners and students in certain circumstances;[25] for the conduct of investigations by National Boards into the health, performance or conduct of registered health practitioners and students;[26] for the carrying out of health and performance assessments by assessors, and the reporting of the assessments to the relevant National Boards, with a view to the making by the Boards of certain kinds of decisions;[27] for the taking of 'relevant action', as defined, by National Boards against registered health practitioners or students in certain circumstances;[28] for the establishment of health panels to consider the health of practitioners and students and for the establishment of performance and professional standards panels to consider the performance and conduct of practitioners and students;[29] for the referring of matters of a more serious kind to 'responsible tribunals';[30] for 'appeals' against certain specified decisions;[31] and for miscellaneous other matters, including the giving of relevant notices in respect of decisions made.[32] Under the Victorian legislation which adopts and applies the National Law, VCAT is nominated not only as the body to hear appeals but also as the 'responsible tribunal' to deal with referrals.[33]

18 Descriptions of the national legislative scheme may also be found in the several judgments of the members of the Western Australian Court of Appeal in Bernadt.[34] That case was decided in 2013. Subsequently, in 2017, the centrally relevant provision for present purposes, s 156, was amended by the insertion of s 156(1)(e), which provides for the taking of 'immediate action' where it is reasonably believed that such action 'is otherwise in the public interest'.[35] The Board now says that s 156(1)(e) has significance for the proper construction of s 156(1)(a).[36] In its initial dealings with Dr Sami and in its submissions to VCAT, the Board had relied on s 156(1)(e) directly, as a source of power to take immediate action in relation to Dr Sami. However, the Board does not submit in this Court that VCAT erred insofar as VCAT concluded that immediate action should not be taken in relation to Dr Sami under s 156(1)(e). Apart from the insertion of s 156(1)(e), the relevant provisions of the National Law (itself) remain much the same as they were in 2013, and as they were described in Bernadt. However, when Bernadt was decided in 2013, there were some particular provisions of the Western Australian application legislation and of other relevant Western Australian legislation (particularly in relation to appeals) that were, at least in form, a little different from the current corresponding provisions of the corresponding Victorian legislation. However, those differences are of little or no moment for the purposes of the present case.

The particular provisions of the National Law of most relevance

19 The present case relates mainly to only one of the 14 Divisions of Part 8 of the National Law, namely Division 7 ('Immediate action') of Part 8. It is important to note that Division 7 does not provide for the bringing of disciplinary proceedings against practitioners or students. Rather, it provides for the taking of certain specified kinds of action - principally, at least, action of an interim nature[37] - in relation to registered health practitioners or students, to protect other persons, to protect public health or safety, to protect the integrity of the registration system, or otherwise in the public interest. Investigatory, disciplinary and other regulatory proceedings are provided for in other Divisions of Part 8 of the National Law.

20 At all times directly relevant to this case, Division 7 of Part 8 has provided as follows:

Division 7 - Immediate action

155 Definition

In this Division -

immediate action, in relation to a registered health practitioner or student, means -

(a) the suspension, or imposition of a condition on, the health practitioner's or student's registration; or

(b) accepting an undertaking from the health practitioner or student; or

(c) accepting the surrender of the health practitioner's or student's registration.

(d) if immediate action has previously been taken suspending a health practitioner's or student's registration - the revocation of the suspension and the imposition of a condition on the registration; or

(e) if immediate action has previously been taken imposing a condition on a health practitioner's or student's registration - the suspension of the registration instead of the condition.

156 Power to take immediate action

(1) A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if -

(a) the National Board reasonably believes that -

(i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety; or

(b) the National Board reasonably believes that -

(i) the student poses a serious risk to persons because the student -

(A) has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or

(B) has, or may have, an impairment; or

(C) has, or may have, contravened a condition of the student's registration or an undertaking given by the student to a National Board; and

(ii) it is necessary to take immediate action to protect public health or safety; or

(c) the registered health practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular; or

(d) the registered health practitioner's or student's registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction.

(e) the National Board reasonably believes the action is otherwise in the public interest.

_Example of when action may be taken in the public interest - _

A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner's practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.

(2) However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner's or student's registration only if the Board has complied with section 157.

157 Show cause process

(1) If a National Board is proposing to take immediate action that consists of suspending, or imposing a condition on, a registered health practitioner's or student's registration under section 156 , the Board must -

(a) give the practitioner or student notice of the proposed immediate action; and

(b) invite the practitioner or student to make a submission to the Board, within the time stated in the notice about the proposed immediate action.

(2) A notice given to a registered health practitioner or student under subsection (1) , and any submissions made by the practitioner or student in accordance with the notice, may be written or verbal.

(3) The National Board must have regard to any submissions made by the registered health practitioner or student in accordance with this section in deciding whether to take immediate action in relation to the practitioner or student.

158 Notice to be given to registered health practitioner or student about immediate action

(1) Immediately after deciding to take immediate action in relation to a registered health practitioner or student, the National Board must -

(a) give written notice of the Board's decision to the health practitioner or student; and

(b) take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner or student or requiring the practitioner or student to undergo a health or performance assessment.

(2) The notice must state -

(a) the immediate action the National Board has decided to take; and

(b) the reasons for the decision to take the immediate action; and

(c) the further action the National Board proposes to take under this Part in relation to the health practitioner or student; and

(d) that the registered health practitioner or student may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner's or student's registration; and

(e) how an application for appeal may be made and the period within which the application must be made.

159 Period of immediate action

(1) The decision by the National Board to take immediate action in relation to the registered health practitioner or student takes effect on -

(a) the day the notice is given to the practitioner or student; or

(b) the later day stated in the notice.

(2) The decision continues to have effect until the earlier of the following occurs -

(a) the decision is set aside on appeal;

(b) for the suspension of, or imposition of conditions on, the registered health practitioner's or student's registration, the suspension is revoked, or the conditions are removed, by the National Board; or

(c) for an undertaking, the National Board and the registered health practitioner or student agree to end the undertaking.

159A Board may give information to notifier about immediate action

(1) This section applies if a notification about a registered health practitioner or student results in immediate action by a National Board under this division in relation to the practitioner or student.

(2) After deciding to take the immediate action, the National Board may inform the notifier who made the notification of the decision and the reasons for the decision.

21 Division 13 of Part 8 of the National Law relates to appeals. The principally relevant provisions of Division 13 are as follows:

199 Appellable decisions

(1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision -

...

(h) a decision by a National Board to suspend the person's registration;

...

(2) For the purposes of subsection (1), the appropriate responsible tribunal for an appellable decision is -

(a) for a decision to take health, conduct or performance action in relation to a registered health practitioner or student -

(i) the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the decision occurred; or

(ii) if the behaviour the subject of the decision occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; or

...

200 Parties to the proceedings

The parties to proceedings relating to an appellable decision being heard by a responsible tribunal are -

(a) the person who is the subject of the appellable decision; and

(b) the National Board that -

(i) made the appellable decision; or

(ii) established the panel that made the appellable decision.

201 Costs

The responsible tribunal may make any order about costs it considers appropriate for the proceedings.

202 Decision

(1) After hearing the matter, the responsible tribunal may -

(a) confirm the appellable decision; or

(b) amend the appellable decision; or

(c) substitute another decision for the appellable decision.

(2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.

203 Relationship with Act establishing responsible tribunal

This Division applies despite any provision to the contrary of the Act that establishes the responsible tribunal but does not otherwise limit that Act.

22 The National Law also contains some provisions of general application that should be noted. Section 3 of the National Law sets out the statutory object, together with the objectives and guiding principles of the national registration and accreditation scheme. So far as relevant, the stated object of the National Law is to establish a national registration and accreditation scheme for 'the regulation of health practitioners' and 'the registration of [certain] students'. The 'objectives' of the scheme include, relevantly, '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'. The 'guiding principles' of the scheme include, relevantly, that 'the scheme is to operate in a transparent, accountable, efficient, effective and fair way'; and that 'restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality'. Section 4 provides that an entity that has functions under the National Law is to exercise its functions having regard to those objectives and guiding principles. Section 5 contains definitions. The term 'health, conduct or performance action', which, as indicated above, appears in s 199(2)(a) of the National Law, is defined, so far as relevant, to mean action that 'a National Board or an adjudication body may take in relation to a registered health practitioner or student at the end of a proceeding under Part 8'. It would seem that the taking by a National Board of immediate action under s 156(1)(a) would come within the notion of action that a National Board may take 'at the end of a proceeding under Part 8'.[38] Therefore, it would seem that the taking by a National Board of 'immediate action' under s 156(1)(a) would be within the concept of 'a decision to take health, conduct or performance action' referred to in s 199(2)(a). Section 6 of the National Law ('Interpretation generally') picks up and applies Schedule 7 of the National Law. Schedule 7, in turn, includes a s 7, which provides:

7 Interpretation best achieving Law's purpose

(1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation.

(2) Subclause (1) applies whether or not the purpose is expressly stated in this Law.

In addition, s 22(1) of Schedule 7 of the National Law provides:

22 Performance of statutory functions

(1) If this Law confers a function or power on a person or body, the function may be performed, or the power may be exercised, from time to time as occasion requires.

23 Power to make instrument or decision includes power to amend or repeal

If this Law authorises or requires the making of an instrument or decision -

(a) the power includes power to amend or repeal the instrument or decision; and

(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.

The proper construction of s 156(1)(a): short answer

23 In my view, as mentioned above, the Board's various constructions of s 156(1)(a) are all incorrect. Section 156(1)(a) of the National Law does not, either in its own terms or as indicated by matters of context or purpose, require the relevant National Board or the appropriate responsible tribunal to choose between differing versions of past events (by way of forming a 'reasonable belief' in that regard) - either always or always except in one or other of the three situations now suggested by the Board - for the purpose of deciding whether or not to take 'immediate action' in relation to a registered health practitioner. The decision-maker's power under s 156(1)(a) is not so confined, albeit that, like all statutory powers, its exercise is subject to judicial review on the ground of legal unreasonableness and on other administrative law grounds.[39] Decided cases do not require this Court to adopt any of the Board's constructions of s 156(1)(a). VCAT did not err in law in this case in the manner alleged by the Board. My reasons for these conclusions will be further developed below. In the meantime, it is desirable to describe the history and circumstances of the present case in order to give a factual context to the question of statutory construction and in order that every aspect of the Board's case, as ultimately put, may be appropriately dealt with.

The history and circumstances of the present case

24 The following chronology is uncontroversial. It is based on documents contained in the Court Book, being mainly documents that were before VCAT, VCAT's reasons for decision and the affidavit of Louisa Ashton, solicitor, affirmed on 10 June 2021 and filed in this Court on behalf of the Board, and the exhibits to that affidavit.

25 In 2006, Dr Sami commenced practice as a qualified medical practitioner in the United Kingdom. In 2013, he migrated to Australia. In 2014, he was married. There is one child of the marriage, a boy.[40] In 2016, Dr Sami commenced working part-time as a registered general practitioner in suburban Melbourne; and part-time as a senior professional medical officer at AHPRA, assessing general practitioners. From time to time he also performed duties at AHPRA as an investigator.[41]

26 In March 2017, Dr Sami first saw as a patient a woman in her early twenties ("XYZ") who later made a complaint against him. Dr Sami saw XYZ as a patient on a total of seven occasions over a period of about two years, the last in early March 2019. On Saturday evening 30 March 2019, about 25 days after XYZ's last attendance as a patient, Dr Sami and XYZ independently attended a nightclub in Melbourne, arriving at different times.[42] At one stage, they spoke to each other briefly at a bar within the nightclub. Later in the night they met again; and they danced together, embracing and kissing on the dance floor. Each had become very inebriated. At about 1.00am on Sunday morning 31 March 2019 they had a sexual encounter in a disabled toilet at the nightclub.[43] In a written police statement which she made about one month later (on 1 May 2019), XYZ maintained that Dr Sami had recognised her as a patient from the beginning.[44] However, in a written statement that Dr Sami made at a later time again (on 11 December 2020), Dr Sami denied this. He said that he only recognised XYZ as a patient when he was having sexual intercourse with her at the end of the evening and that he then immediately stopped.[45] In her police statement XYZ did not deny that she had been willing to engage in sexual intercourse initially, but claimed that the actual intercourse was violent and non-consensual.[46] In his written statement of 11 December 2020, Dr Sami denied this. He said that the intercourse was consensual at all times and that there was no violence.[47]

27 On 11 April 2019, XYZ reported the matter to Victoria Police.[48] On 1 May 2019, she made her abovementioned written police statement. On the same day, she made a complaint to AHPRA, which treated her complaint as a 'voluntary notification' under Divisions 3 and 4 (ss 143-147) of the National Law. AHPRA referred the notification to the Board and, on 6 May 2019, the Board, through AHPRA, commenced an investigation under s 160 of the National Law into the conduct of Dr Sami.[49]

28 On 9 July 2019, Dr Sami was arrested by police and gave a 'no comment' interview.[50] On 10 July 2019, Victoria Police provided XYZ's statement of 1 May 2019 to AHPRA.[51]

29 On 16 July 2019, AHPRA, on behalf of the Board, gave Dr Sami a written 'show cause' notice under s 157 of the National Law, stating that the Board was proposing to take immediate action in relation to Dr Sami and inviting him to make a submission about that proposal. On 26 July 2019, Dr Sami lodged a written submission with the Board. On 29 July 2019, the Board heard verbal submissions from counsel for Dr Sami. On that same day, the Board decided to suspend Dr Sami's registration as from the following day, 30 July 2019. In a letter from AHRPA to Dr Sami's legal practitioners dated 30 July 2019, it was explained that the Board considered it appropriate to take immediate action in relation to Dr Sami under both s 156(1)(a) (risk to persons) and s 156(1)(e) (public interest) of the National Law. Detailed reasons were given.[52]

30 On 19 May 2020, Victoria Police charged Dr Sami with two counts of rape and three counts of sexual assault.[53]

31 On 7 August 2020, the criminal matter was the subject of a committal mention hearing in the Magistrates' Court.[54] The police brief of evidence included XYZ's statement of 1 May 2019, together with the statements of certain third parties tending to corroborate parts of the complainant's statement. Dr Sami's medical records relating to XYZ were also included.[55] In addition, the police brief contained some CCTV footage from the nightclub, including footage that showed XYZ and Dr Sami while they were dancing, and at other times both before and after their encounter in the disabled toilet.[56] It appears that XYZ may not have seen the CCTV footage prior to making her statement of 1 May 2019.

32 On 26 August 2020, Victoria Police withdrew all charges against Dr Sami. The Magistrates' Court awarded Dr Sami his costs of the proceeding.[57]

33 On 4 September 2020, Dr Sami wrote to the Board inquiring about having the suspension lifted. There was apparently no response to this request.[58]

34 On 11 December 2020, via solicitors, Dr Sami requested the Board to reconsider its decision of 30 July 2019 to suspend his registration.[59] The request included the abovementioned written statement of 11 December 2020 made by Dr Sami. The statement dealt first with matters of background, particularly relating to Dr Sami's career. It also mentioned that he was at that time separated from his wife and seeking a divorce and that he was living in the family home with his 5 year old son. The statement then set out several 'issues' said to have impacted upon Dr Sami's psychological state prior to and as at 30-31 March 2019. These included claimed concerns about the medical condition of his son; claims that Dr Sami had suffered significant neck pain from 2017; claims that Dr Sami had been experiencing marital discord from 2017; and claims that a few days before 30 March 2019 Dr Sami's mother in London had suffered a worrying deterioration in her health. Next, the statement gave Dr Sami's version of the events of 30 and 31 March 2019. It contained assertions that Dr Sami had consumed much more alcohol that evening than he was used to, with no food. It contained a denial of XYZ's allegation that Dr Sami had said to her at the nightclub 'you're my patient'. On the other hand, it allowed for the possibility that XYZ may have said that she was a patient of his. It referred to the dancing. It stated that, throughout this period, Dr Sami did not appreciate that XYZ was his patient. It included an assertion that, towards the end of the evening, XYZ pulled Dr Sami by the arm, saying 'come with me'; and that she led him to the disabled toilet. It noted that her leading him by his arm to the disabled toilet was shown clearly on the CCTV footage. It asserted that XYZ locked the door of the toilet. It asserted that there was then consensual intercourse for around two minutes. It further asserted that it only dawned on Dr Sami that XYZ was a patient at that stage, and that this caused him to cease intercourse. It contained assertions that XYZ was not upset, that everything was cordial, that XYZ got dressed and did her makeup and hair; and that they hugged before leaving the toilet, with XYZ leaving first. The statement asserted that the CCTV footage showed them leaving the toilet with no signs of distress on the part of XYZ; and that the CCTV footage indicated that they had been in the toilet for 12 minutes.[60]

35 The statement of Dr Sami contained an acknowledgement that having sex with a patient is certainly wrong; and it indicated that Dr Sami did not blame XYZ in any way for what had occurred.[61]

36 The statement then detailed steps that Dr Sami claimed to have taken since the incident, which he hoped would reassure the Board that he did not pose a risk to patients or the public. In particular, it was stated that Dr Sami had commenced seeing a psychiatrist in October 2020; that Dr Sami would have seen the psychiatrist sooner, but that the lawyers advising him during the period when he faced the prospect of criminal charges had advised him not to speak with anyone about the incident; that he had discussed with the psychiatrist stressors in his personal life and how to deal with them; and that these discussions included the events of 30-31 March 2019 themselves, together with the matters of doctor-patient boundaries and power imbalances. It was stated that Dr Sami was proposing to continue to see the psychiatrist.[62]

37 It was further said in the statement that, if Dr Sami was permitted to return to practice, he would engage a mentor/support person with whom he could liaise on a monthly basis or more frequently if required; that he had undertaken CPD courses covering relevant topics; that he had given up drinking alcohol as from July 2019; that he believed that he had been under considerable emotional pressure and had been depressed at the time of the incident; that, subsequently, his son's medical prognosis had improved significantly; that Dr Sami was in the final stages of resolving Family Court issues with his former wife; that his neck pain issues had been resolved through lifestyle changes and other steps; and that his mother's medical condition had stabilised. Further, according to the statement, Dr Sami had gone through the very considerable stress of being charged with rape and sexual assault, including shame and embarrassment as a result of mainstream media reports of the criminal charges. It was pointed out that he had already been suspended from practising medicine for 16 months and it was said that this had created very significant financial pressures. According to the statement he had lost his position at the suburban medical surgery and all of his other medical employment. Finally, the statement acknowledged the inherent power imbalance in the doctor-patient relationship and the obligation and fundamental importance of maintaining professional boundaries. There was an acknowledgement that pursuing sexual conduct with a patient could cause psychological and/or emotional harm to the patient and could compromise the medical care of the patient.[63]

38 On 5 January 2021, the Board declined to exercise its power (a power conferred by and/or recognised in s 159(2)(b) of the National Law) to revoke the suspension. On the other hand, the Board advised that it was maintaining the suspension only on the basis of s 156(1)(a), and no longer on the basis of s 156(1)(e).[64]

39 On 2 February 2021, Dr Sami applied to VCAT for review of the original suspension decision of 30 July 2019 and also for review of the Board's refusal on 5 January 2021 to revoke the suspension.[65]

40 Subsequently, the parties agreed that the decision of 5 January 2021 was not reviewable by VCAT under ss 199-203 of the National Law or at all. However, the Board consented to Dr Sami being granted an extension of time for review of the decision of 30 July 2019.[66]

41 At VCAT, the Board reversed its position in relation to s 156(1)(e) and sought to rely on that provision again.[67]

42 On 24 March 2021, a written outline of submissions prepared by senior counsel for the Board was filed at VCAT.[68] On 1 April 2021, a responsive outline of submissions prepared by senior and junior counsel for Dr Sami was filed at VCAT.[69]

43 VCAT (constituted by Senior Member Smithers and medical Members Mason and Molloy) heard the appeal on 7 April 2021. During the hearing VCAT made an order under the Open Courts Act 2013 (Vic) suppressing the disclosure of any information that might identify XYZ. That order remains in force. (Later, on 14 July 2021, after the commencement of the present proceeding in this Court, I made a similar order to cover this proceeding. That order also remains in force).

44 Importantly, apparently by agreement, no witnesses were called and there was no cross-examination at the VCAT hearing.[70] The only significant 'evidentiary' material before VCAT was the relevant part of the Board's file, the police brief for the aborted criminal proceeding (which included the statement of XYZ of 1 May 2019 and the other police statements referred to above), Dr Sami's written statement of 11 December 2020 and a report from Dr Sami's psychiatrist dated 25 March 2021. VCAT was told that the Board's own disciplinary investigation (that had commenced on 6 May 2019) would take another three months to complete; and that if (which was anticipated) the Board decided to commence a disciplinary proceeding against Dr Sami at VCAT, the best estimate was that that proceeding would be heard and determined in early 2022.[71]

45 At the conclusion of the VCAT hearing, senior counsel for Dr Sami suggested that inquiries could be made with XYZ as to whether she had requested that the criminal charges be withdrawn. VCAT indicated that it would be assisted by receiving a response to that question.[72] Subsequently, on 9 April 2021, the solicitors for the Board contacted XYZ by telephone. The solicitors reported to the Tribunal, by a letter dated 14 April 2021, that XYZ had stated:

(a) that she did not ask for the criminal charges against Dr Sami to be withdrawn; and

(b) that, as far as she was aware, the criminal charges were not withdrawn in response to any view or preference that she expressed or held.[73]

In the letter, the solicitors for the Board indicated that the Board maintained its submission, which had been advanced at the hearing, that the Tribunal did not (and could not) know why the charges had been withdrawn.[74]

VCAT's decision and reasons and the general scope and the boundaries of the Board's attack

46 On 6 May 2021, the Tribunal made its order and gave its reasons for decision. The order reads as follows:

Under s 202(1)(c) of the Health Practitioner Regulation National Law, the decision of the respondent of 30 July 2019 to suspend the registration of the applicant by way of immediate action under s 156(1)(a) and (e), is substituted by a decision that no immediate action be taken under those provisions.

47 VCAT's statement of reasons occupies 26 pages, with 142 paragraphs and 36 footnotes. The Board does not allege that VCAT's statement of reasons is legally inadequate.[75]

48 I will begin to recount and summarise VCAT's reasons in a moment, but it is useful first to say a little more, in general terms, about what the Board does and does not submit about VCAT's decision and reasons. Although the Board contends, as indicated above, that, by reason of s 156(1)(a), VCAT was required to form and express a belief or beliefs about disputed aspects of the events at the nightclub and that VCAT failed to do so, and although, as will be further mentioned in due course, the Board makes consequential criticisms of VCAT's process of reasoning, the Board does not advance any ground of attack on VCAT's decision that is independent of the Board's argument as to the proper construction of s 156(1)(a).[76] And, as already mentioned, the Board does not submit that VCAT erred in law in its rejection of the Board's case insofar as that case was based on s 156(1)(e). Further, there is no ground of legal unreasonableness or of failing to take into account mandatory relevant considerations. It is not submitted that VCAT's decision was not reasonably open to it on the material before it. Quite the contrary. The Board acknowledges that VCAT's decision was reasonably open to it on that material.[77]

49 Towards the beginning of its reasons, VCAT notes that, while there was agreement on some matters, XYZ's police statement of 1 May 2019 alleges that 'key aspects' of the encounter of 30-31 March 2019 were violent, and not consensual.[78] VCAT immediately acknowledges that if 'that were alleged and proved in a disciplinary proceeding, such conduct would obviously raise very serious questions about Dr Sami's dependability, ethics and suitability to practise.'[79] However, VCAT also notes[80] that Dr Sami's version of events is quite different, as indicated above. VCAT perceives the issue before it to be whether, in the current circumstances, the risks to the public and to the public interest[81] are such that Dr Sami should not be allowed to practise as a GP during the period from the time of VCAT's decision until the determination of the anticipated disciplinary proceeding.[82]

50 VCAT emphasises a matter referred to above, namely that Dr Sami's appeal against the 'immediate action' taken by the Board is not a disciplinary proceeding. The question is not, VCAT observes, whether Dr Sami has engaged in professional misconduct, nor whether he is a fit and proper person to practise.[83] Before this Court, the Board makes no criticism of these particular observations.

11. Nor are we making definitive findings of fact as to what did or did not occur. On the other hand, it is necessary to give consideration to the doctor's 'conduct', for the purposes of determining whether we have the requisite 'reasonable belief' under s 156(1)(a).

12. Specifically, our task under s 156(1)(a) is to consider whether we 'reasonably believe' that because of the doctor's 'conduct', he poses a serious risk to persons and that it is necessary to take immediate action to protect public health or safety.

13. Under s 156(1)(e), our task is to consider whether we reasonably believe that action (such as suspending the doctor) is 'otherwise in the public interest'. In particular, to protect the reputation of the profession and of the regulatory system.

14. Two related issues in particular arise for consideration here. First, what is the effect of the withdrawal of the criminal charges? Second, how should we characterise Dr Sami's conduct for the purposes of this review?

15. For Dr Sami it was said that the withdrawal of the criminal charges makes the complainant's version less credible. The Board, on the other hand, submitted that this is a neutral factor.

16 Concerning the way in which Dr Sami's 'conduct' should be characterised for the purposes of this hearing, the Board said we should apply the complainant's version. For Dr Sami, it was said we should apply his version, because it is more credible.

17. For the reasons set out below we are satisfied that the withdrawal of the criminal charges is a relevant and significant factor operating in Dr Sami's favour under s 156.

18. This is relevant to the way in which we approach the question of how Dr Sami's 'conduct' should be characterised for the purposes of the s 156 analysis. The case law indicates that a complaint that is misconceived should clearly not be given weight. In our view, it cannot be said that the complaint here is misconceived. But the withdrawal of the charges is a real world consideration which we cannot ignore as part of considering whether taking immediate action under s 156 is the correct and preferable decision.

19. In weighing up the applicable criteria under s 156, we have ultimately not formed the requisite reasonable belief under either s 156(1)(a) or (e) that immediate action should be taken against Dr Sami.

52 Next, by way of general background, VCAT sets out a brief chronology of relevant events,[85] all of which are covered above.

53 Then, VCAT deals with, and grants, the application made by consent for an extension of time.[86]

54 Thereafter, under the heading 'The legal context', VCAT sets out lengthy passages from the written submissions of the Board.[87] VCAT does not, at this point, express or foreshadow any intention not to accept any part or parts of the passages about to be set out.[88] The passages quoted by VCAT include, first, the salient provisions of s 155 and 156 of the National Law. They include, next, the following parts of s 3 of the National Law, being the only parts thereof that the Board had cited:

(2) The objectives of the national registration and accreditation scheme are -

(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; ...

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

...

(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

The next part of VCAT's quotation from the Board's written submissions reproduces the next heading contained in those submissions, namely 'The applicable principles', and it reproduces all of the paragraphs that had appeared under that heading. Those paragraphs had commenced as follows:

Section 156 of the National Law empowers the Board to take immediate action against a medical practitioner. Immediate action is 'designed to operate for an interim period, until an investigation or disciplinary proceeding with respect to the medical practitioner is able to be concluded'.[89] The purpose of that action is 'to put measures in place to protect against, or ameliorate, harm pending the determination' of that process.[90]

The succeeding paragraphs of the Board's written submissions to VCAT, as quoted by VCAT, were headed 'Section 156(1)(a)'. Omitting paragraph and subparagraph numbers, they read as follows:

The power to take immediate action under section 156(1)(a) is only enlivened if the Board (or the Tribunal on review) has formed a reasonable belief that:

• because of the practitioner's conduct, performance or health;
• the practitioner poses a serious risk to persons; and
• immediate action is necessary to protect public health or safety.

The first of these matters is a factual one; the remaining two are evaluative.[91] All three matters, however, require the formation of a 'reasonable belief'.[92]

• A reasonable belief 'does not require proof of conduct' but rather 'an inclination of the mind toward assenting to, rather than rejecting, a proposition'.[93]
• 'The underlying facts giving rise to the reasonable belief... do not have to be established on the balance of probabilities, however there must be proven objective circumstances sufficient to justify the belief.'[94] In this regard, the VCAT has said this about decisions made under s 156(1)(a):[95]

In WD v Medical Board of Australia [2013] QCAT 614 Horneman-Wren J Deputy President of the Queensland Civil and Administrative Tribunal (QCAT) summarized the approach generally relevant to the merits of an IAC decision as follows:

1. an immediate action order does not entail a detailed enquiry;

2. it requires action on an urgent basis because of the need to protect public health and safety;

3. the taking of immediate action does not require proof of the conduct; but rather whether there is a reasonable belief that the registrant poses a serious risk;

4_._ an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;

5. the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;

6. the material available should be carefully scrutinised in order to determine the weight to be attached to it;

7. a complaint that is trivial or misconceived on its face will clearly not be given weight;

8. the nature of the allegations will be highly relevant to the issue of whether the order is justified.

• The Tribunal has regarded the following description - as to when it might hold the requisite reasonable belief - as 'uncontroversial':[96]

I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.

Three more points may be made about section 156(1)(a).

First, in determining whether it holds a reasonable belief that - because of the practitioner's conduct, performance or health - the practitioner poses a serious risk to persons, the Board (and the Tribunal on review) should consider these questions:

• what serious risk does the practitioner pose (in short: 'serious risk of what')?; and
• to whom does the practitioner pose that serious risk (in short: 'serious risk to whom')?[97]

Approaching the matter in this way greatly assists the Board (and the Tribunal on review) to determine whether it holds a reasonable belief that it is necessary to take immediate action, and what form that immediate action should take.

Secondly_,_ whilst the safety of the public must be the 'prime concern' under section 156(1)(a), that safety should be secured with as little damage to the practitioner as is consistent with its maintenance.[98]

And thirdly, immediate action may be taken under section 156(1)(a) where the alleged conduct is the same as the conduct to which the serious risk relates. But it is not confined to that scenario. For example, immediate action has been taken under that section where the alleged conduct (of posting material on social media) was not the same as the conduct to which the serious risk relates (of harming patients in the practitioner's practice).[99]

55 The next part of VCAT's quotation from the Board's written submissions relates in particular to the meaning and operation of s 156(1)(e). Since the Board ascribes no legal error to VCAT's decision in respect of s 156(1)(e), it is unnecessary to reproduce that part of the quoted written submissions.[100]

56 Next, VCAT refers to the judgment of the Victorian Court of Appeal in Kozanoglu v The Pharmacy Board of Australia ('Kozanoglu'),[101] which was given in 2012 - the year before Bernadt was decided by the Western Australian Court of Appeal - and which, as indicated in more detail below, was discussed in Bernadt, with one of the judges in Bernadt appearing to suggest that Kozanoglu should not be followed.[102] Without mentioning Bernadt in this context, VCAT says:[103]

In Kozanoglu, the Court of Appeal said that reviews of immediate action are neither an appeal in the strict sense, nor a rehearing de novo. Rather, they are a hybrid. Evidence which was not before the Board when it made its decision to suspend Dr Sami's registration may be put before the Tribunal if it bears directly upon that decision as originally taken. Both parties contended that all the additional material that was put to the Tribunal was properly able to be accepted by it. We agree.

57 VCAT then turns to the events of 30-31 March 2019 at the nightclub.[104] VCAT identifies in broad and preliminary terms various differences and discrepancies between the accounts of XYZ and of Dr Sami respectively; and, again in broad and preliminary terms, it identifies the rival contentions of the parties as to which versions of the disputed events should be relied upon. In the course of doing so, VCAT comments as follows:

We are conscious of the fact that in relation to this aspect, as is the case for all aspects of the events which occurred, we do not have full evidence - far from it.[105]

...

Again, we are conscious that we are far from having full evidence about this matter.[106]

58 Next, VCAT refers in more detail to, and makes further comments on, the withdrawal of the criminal charges.[107] VCAT notes that the Board had submitted that this was a neutral factor, whereas Dr Sami had submitted that the most obvious inference was that the prosecuting authority had determined that there was no reasonable prospect of conviction. VCAT further notes that the pendency of the Board's own disciplinary investigation was predicated on the assumption that XYZ would provide a statement to AHPRA consistent with her police statement of 1 May 2019. (Apparently, that had not yet occurred.) VCAT then observes that, on the authorities, 'mere allegations' might be sufficient to create the 'reasonable belief as to the existence of risk under s 156(1)(a)'; but that the available material should be 'carefully scrutinised'.[108] VCAT finds, on this point, that the withdrawal of the criminal charges is a relevant matter. The situation had changed. The possibility that Dr Sami might be found guilty of rape and sexual assault had now been excluded. It was indeed to be inferred, VCAT says, that a judgment had been made by the prosecuting authority that if the prosecution were to proceed it would not result in findings of guilt. On the other hand, VCAT acknowledges that the mere withdrawal of criminal charges does not automatically entail that the conduct alleged by a complainant should be disregarded in a s 156(1)(a) analysis. It remains necessary to consider the alleged conduct. VCAT proceeds here, and later in the reasons, to consider the significance of the withdrawal of the criminal charges for the analysis under s 156(1)(e); but, for the reasons already mentioned, I need not refer further to that aspect.

59 Next, VCAT refers to authorities concerned with the concept of 'conduct' for the purposes of s 156(1)(a).[109] It seems that, before VCAT, the Board had relied mainly on Bernadt in this regard, just as it still does in this Court. VCAT considers Bernadt. Indeed, VCAT sets out in full paragraph [66] of the judgment of the President of the Court of Appeal of Western Australia in that case, being the very paragraph on which the Board places principal reliance in this Court.[110] VCAT notes that, in Bernadt, in this connection, the President, McLure P, had cited the judgment of the High Court in George v Rockett,[111] a case concerning the power to issue a search warrant. VCAT concludes this particular section of its reasons by saying:[112]

While we take this decision[113] as indicating that there is a lower bar for consideration of the factual component in the s156(1)(a) analysis than say, making findings of fact in an actual disciplinary proceeding against a doctor, we do note that the situation where it is proposed to issue a search warrant is different to the situation where immediate action by way of suspending a doctor's registration is proposed.

The Board does not suggest in this Court that anything in this particular section of VCAT's reasons, in itself, reveals error.

60 The next section of VCAT's reasons[114] contains a summary of the competing submissions made by the parties about the likelihood of their preferred versions of the events of 30-31 March 2019 being correct. Again, the Board does not suggest that this section of the reasons reveals any error, whether of fact or of law.

61 Rather, it is the next section of the Board's reasons, headed 'Conduct - consideration' on which the Board principally focuses in this Court.[115] In those circumstances, it is desirable to set out the six paragraphs of this section of VCAT's reasons in full and as they were later quoted, in the Board's written submissions in this Court, with the Board's underlining for emphasis:[116]

Conduct - consideration

61. It is clearly the case that if the allegations of violent and non-consensual acts by Dr Sami were formally alleged and proved, this would raise very serious questions about Dr Sami's dependability, ethics and suitability to practise. And in the event it was proved that he was aware of the doctor-patient relationship when he engaged in that conduct, that would suggest a serious breach of the Code of Conduct relating to sexual boundaries in the doctor-patient relationship. In particular, in relation to abuse of the power imbalance between the male doctor and his female patient, and abuse of the patient's trust.

62. However, in considering 'conduct' under s 156(1)(a), in our view, the withdrawal of the criminal charges is of significance, and does weigh in Dr Sami's favour. We also note the submission that Dr Sami's statement about recognising his patient detracts from his credibility. Beyond that, we will not deal with the opposing arguments in detail. To do so would involve inappropriately descending into a forensic analysis of the minutiae of the evidence, and whether some matters provide substantial or incremental support for one side or the other. This is clearly not the forum for that. We do not believe that at this point, any of those matters loom as factors which have a major influence on the analysis.

63. Thus we do not draw firm conclusions about the nature of the 'conduct' in the way the competing submissions of the parties invited us to do.

64. However, the limited information available to us does not cause us to conclude that the complainant's version must be regarded as misconceived, such that it should be rejected for the purpose of the s 156 analysis.

65. Accordingly, we have regard to the allegations as put in the complainant's statement of 1 May 2019, but taking into account the fact that the criminal charges have been withdrawn, and the fact that Dr Sami has an alternative version of the events which took place on 31 March 2019.

66. That is, we do not regard it as obligatory for us to determine that we will base our analysis of risk on one version or the other. In our view, here, it is appropriate to undertake a more holistic analysis, which weighs the degree of risk to persons against the factual matrix in its present necessarily incomplete state.

62 Next, VCAT addresses itself to the question of serious risk for the purposes of s 156(1)(a). The parties had agreed at VCAT that the Tribunal should consider the questions 'serious risk of what?' and 'serious risk to whom?'[117]

63 The Board had submitted to VCAT that Dr Sami's alleged conduct posed a serious risk of inflicting emotional and/or psychological harm, and that he posed that risk to all patients (and not just female patients).[118] The Board had further submitted to VCAT that Dr Sami's alleged conduct demonstrated a complete disregard for the well-being of his patient and a preparedness to abuse his position of trust and power for his own sexual gratification. Relying on the language of the decision in Farshchi v Chinese Medicine Board of Australia ('Farshchi')[119], the Board had submitted to VCAT that practitioners of this kind were a danger to all members of the community, irrespective of their gender, in that such practitioners lack ethical judgment and are not dependable or trustworthy.[120]

64 For Dr Sami it had been submitted to VCAT that his version of events should be accepted for the purposes of the review and that, on that basis, the prospect of Dr Sami posing a serious risk was fanciful.[121] However, it had also been submitted for Dr Sami that even if XYZ's version were given credence, there would be no serious risk to persons.[122]

65 VCAT's reasons indicate that the matters referred to on behalf of Dr Sami as indicating little or no risk were five fold.[123] First, it had been pointed out that the conduct (on any version) did not occur in the clinical setting, but rather at a licensed venue where Dr Sami was inebriated; whereas, according to Dr Sami, he had previously been only a moderate drinker and since July 2019 had not drunk alcohol at all. Second, it had been submitted that the conduct occurred in a remarkable confluence of circumstances, the chances of which occurring again were highly remote. In particular, it had been said that Dr Sami was, at the time, subject to a series of personal stressors (as indicated above) all of which he indicated had since receded. Third, it had been submitted that the abovementioned consequences incurred by Dr Sami as a result of the incident (including career and financial consequences and stress and shame and embarrassment) would act as a deterrent to him behaving in a comparable way again. Fourth, it had been submitted that Dr Sami's own personal response to the incident reduced the risk. In that regard, reference had been made to Dr Sami's insight generally, his acceptance of responsibility for the incident, his profound regret at letting down the profession, his having undertaken CPD courses and his treatment by a consulting psychiatrist, which was continuing. As mentioned above, a report had been provided to the Tribunal from the consultant psychiatrist. It expressed the opinion that Dr Sami had been profoundly affected by the events of 2019, while recognising that those events had undoubtedly impacted on his patient, XYZ, too. The psychiatrist had said in the report that Dr Sami appeared sincerely regretful about what had happened and had a sense of responsibility to manage his own health and behaviour in future, leading to a belief on the part of the consultant psychiatrist that Dr Sami did not pose an ongoing serious risk to others. The Board had submitted to VCAT that, while the psychiatrist's report could be taken into account, the weight to be accorded to it should be reduced because it was based on Dr Sami's version of the events of 30 and 31 March 2019, not the complainant's. VCAT expresses its acceptance of the Board's submission in that regard.[124] Fifth, it had been submitted for Dr Sami that it was relevant to take into account that he had been suspended for the whole of the previous 20 months, even though he had been the subject of criminal charges for only three of those months. If he remained suspended the most likely scenario, it had been submitted, was that he would be prevented from practising for two and a half years, or perhaps more. In this context, Dr Sami's counsel had reminded VCAT of the statement of the Court of Appeal in Kozanoglu[125] to the effect that, while the safety of the public must necessarily be the prime concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance.

66 VCAT goes on to consider these competing submissions as to serious risk. VCAT notes that, during final addresses, it had invited senior counsel for the Board to provide greater specificity in relation to the Board's submission as to risk, to assist VCAT in considering the questions 'serious risk of what?' and 'serious risk to whom?'. After consulting with his client, senior counsel for the Board had indicated to VCAT that he did not have instructions to be any more specific; that serious risk was to be defined broadly; and that the authorities did not require any more specificity than had been provided. VCAT, however, observes that an argument for taking immediate action will always be more convincing if a more specific risk is able to be pointed to; and VCAT says that that indeed is the effect of the authorities, insofar as they endorse the notion of seeking to answer the two specific questions.[126] Then, in the following paragraphs, which are quoted in full in the Board's submissions to this Court (with the Board's underlining for emphasis as indicated below) and which are said in the submissions to reflect the same error as is alleged to be evident in [61] to [66] of VCAT's reasons,[127] VCAT continues:[128]

88. There may be instances where the nature of the conduct alleged is such that it indicates a broad-ranging lack of moral integrity or ethical judgement, perhaps evidenced by calculated immoral, unethical or malevolent conduct over a period. This case, however, involves a single incident which occurred in the particular circumstances described above.

89. We do think it is appropriate to ask what specific risk there is here, and to whom. We accept that it is not simply a matter of asking whether the same circumstances are likely to arise again, and whether there is a risk of another incident of a sexual interaction occurring with a patient. The question is, in practical terms, whether, against the matrix of circumstances apparent here, we reasonably believe that Dr Sami poses a serious risk to persons.

90. This would cover both the way in which Dr Sami conducts himself in the exercise of his professional duties, and outside that realm (as was the case here, on 31 March 2019).

91. Looking first at the risk posed in relation to the way in which Dr Sami conducts himself in the exercise of his professional duties, this would concern mainly risks to patients, but also perhaps, to colleagues as well.

92. Considering all the circumstances, we do not have a reasonable belief that Dr Sami poses a serious risk in that context. In this regard, we are conscious that his alleged conduct, while very serious, occurred in a social setting, away from his work, and there is no suggestion of any misuse of professional power in the consulting room, or in any other professional environment. Had the alleged conduct occurred in the consulting room, for example, instead of at a nightclub, the calculus in relation to risk to patients would be quite different.

93. Further, we accept that the experience he has had provides a very strong deterrent against breaching professional boundaries in any similar manner again.

94. Turning to the risk posed outside the professional realm, we also do not have a reasonable belief that Dr Sami poses a serious risk in that context. In our view, the probability of Dr Sami again encountering a patient in similar or equivalent circumstances is very low. Also, to the extent the Board contended that immediate action should be taken in relation to the risk posed to non-patients as well as patients, outside the professional realm, once again, the experience he has had provides a very strong deterrent against breaching professional boundaries in any similar manner again. We also note his statement that he no longer consumes alcohol, which in our view would reduce the risk further.

95. Nor, on the information we have, do we regard the circumstances as indicating a pervasive lack of ethical or moral integrity, such that we should in this case extrapolate from the alleged conduct, to a broad ranging risk to persons.

96. That is a high bar, as the decision in Farshchi indicates. [VCAT proceeds to give a detailed account of the facts and the outcome in Farshchi, and compares the same with the present case.]

97. Here, in all the circumstances, in the words of Oglesby, quoted above, we do not believe there is a real possibility that Dr Sami will engage in conduct which would be harmful to persons.

67 VCAT then turns very briefly to the remaining element of s 156(1)(a), namely whether, in the language of s 156(1)(a)(ii) 'it is necessary to take immediate action to protect public health or safety'. In that regard, VCAT simply says:[129]

Is it necessary to take immediate action to protect public health and safety?

98. In the light of the above analysis, we do not form the reasonable view under s 156(1)(a) that it is necessary to take immediate action to protect public health and safety.

99. We record that our conclusion has been reached without reliance on the notion that the safety of the public should be served with as little damage to the practitioner as is consistent with its maintenance.

68 The remainder of VCAT's reasons are taken up with its consideration and determination of the issues raised by s 156(1)(e).[130] For the reasons already mentioned, I need say no more about that.

69 VCAT's reasons conclude by stating that an order would be made under s 202(1)(c) of the National Law substituting, for the decision of the Board of 30 July 2019 suspending the registration of Dr Sami under s 156(1)(a) and under s 156(1)(e) of the National Law, a decision that no immediate action be taken under those provisions.[131]

The applicable general principles of statutory interpretation

70 As mentioned above, this appeal turns entirely on a point of statutory interpretation. The Board advances no alternative case, such as an attack on the legal reasonableness of VCAT's decision. Indeed the Board acknowledges that VCAT's decision was open to it on the material before it.[132]

71 By its very nature, any contention about the proper construction of a statutory provision is either universally correct or universally incorrect, as a matter of law. A question of statutory construction can have only one correct answer in law.[133] The legal meaning of a statutory provision does not vary with changes to the facts to which it may be applicable.[134] For legal purposes, subject to appeal, the true meaning is what the Court declares the true meaning to be.

72 There is no dispute about the basic, general principles governing questions of statutory interpretation. The focus must be on the statutory text, understood in the light of the context (including any relevant legislative history) and purpose of the relevant provisions.[135] Thus, in SZTAL v Minister for Immigration and Border Protection, Kiefel CJ, Nettle and Gordon JJ said:[136]

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to context and purpose.[137] Context should be regarded at this first stage and not at some later stage, and it should be regarded in its widest sense.[138] This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

73 In my view, the Board is effectively seeking to have the Court read words into the National Law, being words of significant limitation of the powers that National Boards have under s 156(1)(a) and that appropriate responsible tribunals (such as VCAT) have in hearing and determining appeals under s 199 of the National Law in matters arising under s 156(1)(a). In Taylor v Owners-Strata Plan No 11564 ('Taylor')[139] French CJ, Crennan and Bell JJ set out the principles that apply where a party contends that a statute should be read as if it contained additional words:[140]

Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction 'reads up' a provision, giving it an extended operation, or 'reads down' a provision, confining its operation, may be moot.

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which it 'too big, or too much at variance with the language in fact used by the legislature'.

74 In Taylor, their Honours went on to indicate that the three well-known conditions for implying words into a statute stated by Lord Diplock in Jones v Wrotham Park Settled Estates,[141] as reformulated by the House of Lords in Inco Europe Ltd v First Choice Distribution ('Inco Europe'),[142] should be seen as minimum conditions, ie as conditions that it is necessary to satisfy in order that words may be read into a statute.[143] One of those conditions is that the Court can be sure of the substance, although not necessarily the precise words, of the provision that Parliament would have made had the matter been drawn to Parliament's attention.[144] Other important considerations, as indicated in the passage quoted above from Taylor, are that a construction that "fills gaps disclosed in legislation" is not to be countenanced, and that any implication contended for must not be "too big" or "too much at variance with the language in fact used by the legislature".[145] In Taylor, the majority (French CJ, Crennan and Bell JJ) held that the appellant was seeking to have additional words read into the Compensation to Relatives Act 1897 (NSW), and that the attempt failed.

75 Perhaps the Board would say that it is not seeking to read words into the National Law, or to modify the words of the National Law, at all. Perhaps the Board would contend that there is merely a question of statutory construction that involves a choice or choices about the scope and operation of express provisions.[146] However, for reasons I will give in a moment, that would be an heroic characterisation of the Board's construction of the statutory provisions in question, and a characterisation that I cannot accept.

76 The critical provision is, of course, s 156(1)(a) of the National Law, itself. It is worthwhile to set it out again:

156 Power to take immediate action

(1) A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if -

(a) the National Board reasonably believes that -

(i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety;...

It is also useful to recall that an appeal lies under s 199 of the National Law to 'the appropriate responsible tribunal' (in Victoria, VCAT) from a decision made by a National Board to suspend the registration of a practitioner, including in cases where the decision to suspend is taken by way of 'immediate action' under s 156(1)(a).

77 The Board's submissions about what s 156(1)(a) relevantly means have varied considerably. Some of the variations have already been mentioned, and others will be noted in due course. However, as will appear, it seems that the Board's ultimate contention, now, is that s 156(1)(a) has, at least,[147] the effect that, in conduct-related matters, in an appeal by a practitioner from a decision by a National Board to take immediate action in relation to the practitioner under s 156(1)(a), if the information before the tribunal about the practitioner's past conduct is conflicting, the tribunal[148] is obliged by law (ie, by s 156(1)(a) itself), except in the three situations now acknowledged by the Board and mentioned above (ie, except where the conflicts are 'non-core' etc or 'immaterial' or 'impossible to resolve') -

• first, to form and express a (reasonable) belief to the effect that the practitioner has engaged in 'particular identified conduct', or to the effect that the practitioner has not done so; and
• only then, by reference to the 'particular identified conduct', to assess whether the practitioner poses a serious risk to persons and whether it is necessary to take immediate action to protect public health or safety.

78 However, s 156(1)(a) does not actually say this. For a start, its own express terms refer only to National Boards, not to appellate tribunals. Next, s 156(1)(a) says nothing whatever about any pre-conditions for omitting to take, or deciding not to take, immediate action. Rather, on a plain reading of its words, s 156(1)(a) merely provides that a National Board may take immediate action in relation to a health practitioner if the National Board reasonably believes two specified things (only) - first, that, because of the practitioner's conduct, performance or health, the practitioner poses a serious risk to persons, and, second, that it is necessary to take immediate action to protect public health or safety. There is no specification of a third thing or a fourth thing or any other thing that must be reasonably believed. Section 156(1)(a) simply does not say that a National Board must reasonably believe that a practitioner has engaged in particular identified conduct (or in any particular conduct at all) before the National Board can take immediate action under s 156(1)(a). Much less does s 156(1)(a) say that a National Board must reasonably believe that a practitioner has not engaged in particular identified conduct before the National Board can proceed to a decision not to take immediate action under s 156(1)(a) in relation to the practitioner. So far as the literal text of sub-paragraph (i), in particular, of s 156(1)(a) is concerned, the only thing that must be believed is that the practitioner poses a serious risk to persons, albeit that it must be believed that the practitioner poses a serious risk 'because of' the practitioner's conduct, performance or health. As I will further explain in due course, it is plainly possible to believe, reasonably, that a practitioner poses a serious risk to persons 'because of' the practitioner's conduct without the decision-maker forming a belief that the practitioner has engaged in any particular conduct in the past.[149]

79 Thus the actual words of s 156(1)(a) do not call for the formation of a belief that the practitioner has or has not engaged in any relevant conduct at all, much less that the practitioner has or has not engaged in any particular form of conduct. And corresponding observations may be made about 'performance' and 'health' cases. Hence, in my view, the Board is inviting the Court to read into s 156(1)(a) words that are not there. For over a century, Thompson v Goold & Co[150] has been a leading case on the principles relating to reading words into statutes. The House of Lords held that that was what the respondent, Goold & Co, was seeking to do. Lord Mersey said this:[151]

The facts are quite simple. While working for the respondents the appellant lost the sight of one of his eyes by an accident within the meaning of the [Workers Compensation] statute. What happened subsequently is stated by the respondents in paragraph 4 of their case, 'the appellant within six months of the date of the alleged accident... said to the works manager "I claim compensation"... but the appellant did not at any time specify the amount of his claim.'

The question is whether such a claim comes within the meaning of s. 2, sub-s. 1, of the Act, which provides that proceedings for the recovery of compensation shall not be maintainable unless 'the claim for compensation' has been made within six months of the happening of the accident. The fault which the respondents find with the claim is that it does not name the sum of money for which it is made; and it is said that this fault is fatal. My short answer to this contention is that the Act contains no words which require the workman to mention a sum of money.

But then it is said that the Act of Parliament cannot be administered properly unless such words be read into it; for that it contemplates an opportunity being afforded to the master of settling the claim, and so avoiding arbitration proceedings, and that such opportunity is not afforded unless the workman says how much he wants. This reasoning does not satisfy me. It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. Here I see no necessity at all for introducing the words.

80 If the respondents in Thompson v Goold & Co were trying to have words read into the statute, then, all the more plainly, the Board is trying to do the same in this case; and, as the authors of a leading Australian text on statutory interpretation say:[152]

The proposition that '[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do' continues to be cited. Lord Diplock's conditions may be seen as an articulation of when 'clear necessity' may be identified. It is unsurprising, given the stringency of these conditions, and the reluctance to read words into legislation, that arguments which seek to do so fail much more often than they succeed.

81 Even if, contrary to my strongly held view, the Board's construction of s 156(1)(a) would not involve the reading in of words, but merely the making of a 'constructional choice' between available constructions of express words, nevertheless, putting aside for the moment the abovementioned matter of specific precedents, I would not 'choose' the Board's construction in any of its versions. My reasons, about to be given, for not reading into s 156(1)(a) any of the implied requirements for which the Board has contended would also serve, in the alternative, as my reasons for not 'choosing' any of the Board's constructions of s 156(1)(a).

82 As mentioned above,[153] one of the necessary conditions for reading words into a statute is that the court can be sure of the substance, although not necessarily the precise words, of the provision that Parliament would have made had the matter been drawn to Parliament's attention.

83 At all times in this litigation, the Board has been represented by expert and experienced counsel. However, at the final hearing, both senior and junior counsel for the Board found themselves having to chop and change the Board's case as to the construction of s 156(1)(a) several times.

84 According to the Board's original pre-hearing written submissions in this Court,[154] s 156(1)(a) of the National Law has the effect that:[155]

... the Board, or the VCAT on review, must take the following steps when deciding whether to take immediate action under that section:[156]

(a) first, determine whether it has formed a reasonable belief that the practitioner engaged in particular identified conduct;

(b) then - by reference to that identified conduct - assess whether the practitioner poses a serious risk to persons and whether it is necessary to take immediate action to protect public health and safety.

85 What the Board there described as the first 'step' really involves several steps or elements. It envisages that 'particular' conduct will have been 'identified', although it is not specific as to the type of conduct envisaged, nor as to who will have 'identified' it or by what means. After the 'identifying' of the 'particular' conduct comes the matter of the decision-maker determining whether it has formed a reasonable belief that the practitioner engaged in the particular identified conduct. Then, and only then, according to the Board, comes the matter of assessing whether the practitioner poses a serious risk to persons and whether it is necessary to take immediate action to protect public health and safety. What the Board contends for, in all of this, may aptly be referred to as 'the multi-step approach'.

86 Further, the words 'when deciding whether' contained in the extract from the Board's original submission set out above should be noted. As is confirmed by the balance of the Board's written material, the Board was there contending that s 156(1)(a) makes the 'multi-step' approach obligatory regardless of whether, in the end, the decision that is made is a decision to take immediate action or a decision not to take immediate action. Further, in all of the Board's written material, it was contended that the multi-step approach is obligatory not only for the relevant National Board but also for the relevant appellate tribunal (here, VCAT), and that it is obligatory to exactly the same extent at both levels. And no exceptions at all were recognised.

87 It is true that, in its pre-hearing written submissions in reply,[157] in response to a submission by Dr Sami's counsel that the Board's construction of s 156(1)(a) was impractical, the Board submitted that, in contested matters, 'it may be that the Board or Tribunal will be unable to form a reasonable belief that the alleged conduct occurred'.[158] The Board went on to submit:[159]

This will be the case, for example, if the doctor's statement shows that the alleged conduct plainly could not have happened, or could not have happened in the way the patient alleges. In that scenario, it would not be appropriate for the Board to take immediate action against the practitioner under section 156(1)(a).

As these passages show, the Board was doing no more at that stage than acknowledging the obvious, ie that a National Board should not take immediate action when the health practitioner has clearly demonstrated that he or she has not engaged in any conduct of concern. There was no departure by the Board at that stage from the multi-step approach. There was not even an acknowledgement by the Board that it might be impossible or unnecessary, in some cases, to form a (reasonable) belief as to what did happen or as to what did not happen in the past, much less that it might simply be inappropriate to do so.

88 However, at the final hearing, as mentioned above, the Board, through its counsel, retreated significantly from its prior construction of s 156(1)(a), in that counsel came to posit three situations (or sets of situations), as described above,[160] in which s 156(1)(a) would not require the multi-step approach to be taken, whether at National Board level or at tribunal level. Counsel did not posit these situations unbidden, or as a package. Rather, counsel posited the situations separately, in the course of responding to various questions.[161] Counsel for the Board presumably recognised that the Board's original 'absolutist' construction of s 156(1)(a) would be impossible to justify, and, as one new situation after another was posited, that any construction of s 156(1)(a) that did not cater for each such situation, would likewise be impossible to justify. I will return to the content of the three suggested situations when I come to deal further with the acceptability or otherwise of what counsel for the Board ultimately proffered as the Board's construction of s 156(1)(a).

89 At the final hearing the Board appeared to retreat from its original construction of s 156(1)(a) in two additional ways.

90 First, contrary to the way in which the putative 'first' requisite step (or steps) had been described in the Board's written material,[162] senior counsel for the Board conceded that, on any view, it is incorrect to say that the Board or the appellate tribunal must determine whether its own belief or beliefs is or are 'reasonable'. Counsel accepted that the word 'reasonable' in s 156(1)(a) serves, rather, to require that any belief that is formed under s 156(1)(a) must be objectively reasonable before it can validly trigger the (discretionary) power to take immediate action under that provision.[163] This (belated) concession was plainly correct. Although it may be sensible for the Board or the tribunal to realise and to take into account that objective reasonableness is statutorily required in relation to any belief called for by s 156(1)(a), it is not for the Board itself or for the tribunal itself to determine or pronounce upon whether any belief actually formed by it is or is not reasonable. Any issue as to whether any belief formed under s 156(1)(a) is a reasonable belief can only be determined by a court, although the court would be asking itself, retrospectively, whether the Board's belief or the tribunal's belief was reasonably formed at the time when it was formed and in the circumstances that had then faced the Board or the tribunal, as the case may be.

91 Second, junior counsel for the Board, in his oral reply, appeared to concede that s 156(1)(a) does not require a National Board to take, or consider taking, immediate action against a practitioner merely because particular past conduct (even if of a serious nature) has been 'identified' in relation to that practitioner and the National Board has not formed a (reasonable) belief that the practitioner did not engage in that conduct.[164] In any event, junior counsel went on to say:[165]

Of course, it may be just in the ordinary course of its regulatory functions the Board will often have - will often not have reasonable beliefs about practitioners and therefore will not take immediate action against them. Of course that's the case. But in a context where immediate action has been taken by [a National Board], and the matter is before the tribunal to determine what should happen ... it's our submission that the tribunal is required to determine whether it holds a reasonable belief in respect of the facts that are in contest between the parties.

It's not open to the tribunal simply to say 'I'm not going to attempt to form that belief. I wouldn't be appropriate for me to form that belief.'

I draw from junior counsel's remarks that the Board's ultimate position is that the putative legal obligation under s 156(1)(a) to form a (reasonable) belief, one way or the other, about a health practitioner's conduct does not, or perhaps may not, bind a National Board at all, except where the National Board actually goes on to take immediate action, but that the putative legal obligation does bind the responsible tribunal in an appeal from a National Board whether or not the ultimate decision of the Tribunal is that immediate action is to be taken. The irony is, of course, that s 156(1)(a) itself - the only suggested source of the 'multi-step' obligation - refers only to a National Board as the repository of the power, whereas the role of appellate tribunals is provided for elsewhere in the National Law and in the relevant application legislation. Moreover, s 202(2) of the National Law provides that, in substituting another decision for the appellable decision, the responsible tribunal has 'the same powers' as the entity that made the appellable decision. Section 202(2) thus seems to have the effect that, if the power of a National Board to decide not to take immediate action in relation to a practitioner under s 156(1)(a) is not constrained by the putative obligation to take the multi-step approach, then the power of an appellate tribunal to decide not to take immediate action in relation to a practitioner is likewise not constrained by the putative obligation. This appears to be the statutory position even though, in immediate action matters, the appellate tribunal will only have jurisdiction where a registered practitioner or a registered student has appealed under s 199 of the National Law against a (positive) decision to take immediate action.

92 It can now be seen why I have said in paragraph 77 above that the Board's ultimate contention seems to be a contention about the obligations of the appellate tribunal in dealing with an appeal in a matter under s 156(1)(a), as distinct from a contention of the kind originally advanced by the Board, namely a contention that did not distinguish at all between the position of a National Board and the position of an appellate tribunal. Nevertheless, in fairness to the Board, I will continue to consider whether any of the constructions that the Board has advanced in this matter should be accepted.

93 However, the numerous twists and turns of the Board's case, as advanced by its eminent senior and junior counsel, tell strongly against it. To the extent that the Board needs to have additional words read into s 156(1)(a), it is at least extremely difficult for the Board to contend that it can satisfy Lord Diplock's first essential or minimum condition, as reformulated in Inco Europe and as then endorsed in Taylor. That is to say, to that extent, it is at least extremely difficult for the Board to contend that this Court can be sure of the substance of the provision that Parliament would have made had the matter been drawn to Parliament's attention.

94 Further, all of the various constructions of s 156(1)(a) hitherto contended for by the Board amount to constructions that would 'fill a gap' in s 156(1)(a), being a gap perceived by the Board. Essentially, the perceived gap is the lack of an express provision in s 156(1)(a) requiring the decision-maker usually to proceed by reference to particular identified past conduct on the part of the health practitioner concerned, if relevant past conduct has been alleged or asserted. This is a gap perceived to exist even where the alleged or asserted past conduct is hotly in dispute and even where, with the National Board's concurrence, there is no oral evidence or cross examination to help resolve the issues. Such a statutory gap would be a wide one. As Thompson v Goold & Co holds, and as Taylor confirms, the courts should not adopt a construction that 'fills a gap'. Much less should the courts attempt to fill a gap of the size and kind perceived by the Board in the present case.

95 In its original, absolutist form, the construction of s 156(1)(a) contended for by the Board would involve implied requirements of a quite transformative nature. The requirements would also be complex and highly prescriptive. They would extend to all National Boards and all appellate tribunals. They would apply regardless of whether immediate action was ultimately to be taken or not. They would impose a quite rigid regime that downplays numerous real world considerations, such as the differences to be expected in the nature and quality of the information that might come before the decision-maker, including in relation to such things as the source or sources of the information, the level of detail, matters of reliability or credibility, and the nature and extent of the very conflicts (within and between items of information) which, according to the Board, the decision-maker was required to resolve on a 'reasonable belief' basis. It is at least ironic that the Board acknowledges, on the one hand, that it is usual and proper that there should be no oral evidence and no cross-examination or other testing of evidence or other material in s 156(1)(a) cases, and yet contends, on the other hand, that this is no reason to deny that s 156(1)(a) imposes an implied requirement to resolve major differences as to past facts.[166] Of course, the Board's contention inappropriately assumes the correctness of the Board's own construction of s 156(1)(a).

96 Even after the modification of the Board's original construction to allow for the three posited situations, the features of that original construction that I have just mentioned remain. Moreover, further layers of complexity, and new elements of uncertainty, become involved. For example, in relation to the first posited situation, who would finally decide whether a disputed fact was 'centrally important' or 'core' or 'essential'? Would this fall to be determined subjectively by the National Board or the tribunal, subject only to judicial review? Or, rather, would it fall to be determined objectively by a court? As to the second situation, likewise, would the assessment of whether particular factual disputes were or were not material to the issue of 'serious risk' fall primarily to the National Board or the tribunal, or rather to a court? As to the third situation, what would qualify as a conflict of fact that was 'impossible' to resolve? Who would be the judge of that? How is the claimed existence of a workable 'impossibility' exception to be reconciled with the obvious fact that the greater the forensic effort the more likely a factual issue will be able to be resolved. What determines the kinds of procedures that may or must be followed, either at National Board level or at appellate tribunal level, where past facts are in dispute? Separately, with regard to the apparent final twist in the Board's case, how can s 156(1)(a) impose on an appellate tribunal an implied obligation that it does not impose on a National Board at first instance? Thus, the various modifications of the Board's proposed construction advanced during the final hearing have made the suggested implication(s) more detailed, more complex and more uncertain. In those circumstances, in my view, it is pellucidly clear that each version of the implication contended for by the Board is 'too big' and 'too much at variance with the language in fact used by the legislature',[167] and that, therefore, each is unacceptable as a matter of proper statutory construction.

97 Nevertheless, I need to address, or further address, certain arguments that were advanced by the Board in support of its construction or constructions of s 156(1)(a).

Dealing further with the constructional arguments advanced by the Board

98 In its original written submissions and in its written reply, the Board set out arguments in support of its original construction of s 156(1)(a). Those arguments were partly based on contentions about the text, context and purpose of s 156(1)(a). Otherwise, as already mentioned, the arguments were based on various decided cases, especially the judgment of the Court of Appeal of Western Australia in Bernadt.[168] It seems that the Board would continue to rely on all of those same arguments to support its various modified proposed constructions of s 156(1)(a). I will deal now with what the Board has said about the text, context and purpose of s 156(1)(a) before dealing, under a separate heading, with the Board's suggestion that its construction is mandated, or at least supported, by the authorities relied upon.

99 So far as the text of s 156(1)(a) is concerned, the Board submitted that, in conduct-related cases, the words of that provision direct the decision-maker's attention, not to any risk to persons arising 'in the abstract', but to the practitioner's conduct giving rise to any such risk.[169] According to the Board, only a risk arising 'because of' the practitioner's conduct is relevant to the assessment under s 156(1)(a). So, the Board submitted, the National Board (or on appeal or review, the responsible tribunal) must first focus on the conduct, and then determine whether the relevant risk arises.[170] This was said to be consistent with the fact that the expression 'reasonably believes' in s 156(1)(a) qualifies all of the words in that provision that follow it.[171] In fact, according to the Board, to do otherwise would be to read the words 'because of the... practitioner's conduct' out of the provision.[172]

100 I do not accept these submissions. As to why, I would add the following to what I have already said about the text of s 156(1)(a).

101 In short, the statutorily required assessment is of conduct-related risk. The assessment will answer the statutory description, and, subject to the principles of administrative law, will satisfy the actual statutory requirements, if it duly takes into account what is said on all sides about any relevant conduct (including any relevant anticipated conduct) of the practitioner.

102 It is true, of course, that the past conduct of a registered health practitioner, especially if there be little or no controversy about it, might serve to inform an assessment about likely present or future conduct on the part of that practitioner, and therefore to inform assessments about present or future serious risk to persons and about whether it is necessary to take immediate action to protect public health or safety.[173] And an omission to form a view about the probabilities or the possibilities relating to the alleged past or present conduct of the relevant health practitioner might, in a particular case, even render legally unreasonable or otherwise invalid on administrative law grounds a decision purportedly made under s 156(1)(a). However, such a conclusion will only be open where the particular facts of the case warrant it. And there will be cases where the past conduct of a registered health practitioner is of little or no moment. For example, circumstances may have changed such that the practitioner's past conduct has been overtaken by events.

103 Reflections of that kind led counsel for the Board to acknowledge at the final hearing that there were insuperable difficulties inherent in the Board's original construction of s 156(1)(a), and to acknowledge that there must at least be certain exceptions to the suggested implicit rule. However, with a view, presumably, to preventing the suggested implicit rule being swallowed up entirely by exceptions, counsel for the Board sought to draw a line. Counsel ultimately submitted that there were no exceptions beyond the three referred to above, namely (in summary terms) 'non-core' conflicts of fact, immaterial conflicts of fact and conflicts of fact that were 'impossible' to resolve to the level of reasonable belief.[174] I have already observed that there is nothing cut and dried about those three exceptions in themselves and that they carry their own difficulties and uncertainties. Moreover, to test the suggested 'line', I asked senior counsel for the Board why there should be discerned in s 156(1)(a) an implicit rule that would prohibit the approach that was actually taken by VCAT in the present case. Senior counsel submitted that such a rule should be discerned because, otherwise, there would be too much scope for vagueness and uncertainty. He submitted that the reasoning of VCAT in the present case was indeed hopelessly vague and uncertain.[175] This was an echo of similar contentions in the Board's original written submissions.[176] However, at the same time, senior counsel acknowledged (again) that the Board made no attack on VCAT's reasoning independently of the Board's contentions about the proper construction of s 156(1)(a) and raised no suggestion that VCAT's statement of its reasons was legally inadequate.[177] In other words, the Board's criticisms of what VCAT did in this case were relied upon only by way of illustration of the Board's proposition that there must be found within s 156(1)(a) an implicit rule of the kind suggested.

104 I do not accept that the suggested implicit rule would be likely to promote greater certainty or less vagueness. Even if it would, that would not, as a matter of proper statutory interpretation, warrant the discerning within s 156(1)(a) of the (complex) implication. Senior counsel for the Board conceded that, where a reasonable belief as to particular past conduct was actually formed and expressed, it would remain open to the decision-maker, even on the Board's construction of s 156(1)(a), to take into account the possibility that the belief was wrong.[178] In my view, if the decision-maker can ask itself: 'What if I am wrong?', and can discount the risk, present or future, of harm to persons by acknowledging that the 'reasonable belief' might be wrong, then there is little or nothing to be gained from the imposition of the supposed requirement (to form and express a 'reasonable belief' about past conduct) itself. There is a useful analogy here with the principles relating to the assessment of refugee status under the Migration Act 1958 (Cth).[179] Understandably, senior counsel did not suggest that percentage figures of chance or probability were to be routinely required. Moreover, it seems to me that to require the decision-maker, even when the material is inadequate or incomplete, and regardless of the decision-maker's level of confidence, usually to form and express a 'belief' as to what particular conduct occurred in the past would actually be undesirable. It would produce artificial 'clarity'. And it would produce statements of reasons that may unduly prejudice the fact-finding processes involved in any subsequent investigatory or disciplinary proceedings. A similar caution is rightly observed by courts with reference to pronouncements of fact in the determination of interlocutory injunction applications.[180] In the result, I can see nothing in s 156(1)(a) that would prevent the decision-maker from adopting a 'holistic' approach of the general kind adopted by VCAT in the present case. And in passing I note VCAT's statement that 'our conclusion has been reached without reliance on the notion that the safety of the public should be served with as little damage to the practitioner as is consistent with its maintenance'.[181] This statement indicates that VCAT was quite confident, having regard to all of the material before it, that it was not appropriate to prolong the suspension of Dr Sami's registration under s 156 of the National Law. It is a completely different question whether, in a particular case, in order to satisfy the dictates of legal reasonableness or to satisfy an applicable obligation to provide a statement of reasons, a decision-maker may need to be more specific than VCAT was in this case about past events or, for that matter, about future events or risks.

105 Further, it is noteworthy that the power to take immediate action under s 156(1)(a) on the 'conduct' basis is not confined to cases where it is reasonably believed that the practitioner poses a serious risk to persons (and threatens public health or safety) because of past or present or continuing conduct. For example, the power may arise because the decision-maker reasonably believes that the practitioner poses a serious risk to persons only because of the practitioner's anticipated future conduct. Such a belief might have nothing to do with any suggested past or present conduct of the practitioner. Instead, it might arise because of some indication given by the practitioner (by way of a statement or otherwise) about what the practitioner intends to do in the (near) future.[182] Thus, in my opinion, the 'conduct' to which s 156(1)(a) refers is conduct in a broad sense. That sense is conveyed by saying that, for the purposes of s 156(1)(a)(i), the perceived serious risk to persons must be 'conduct-related', 'performance-related' or 'health-related', as the case may be. Generally speaking, of course, even actual past conduct of a practitioner cannot, of itself, pose any present or future risk to persons or render it necessary to take 'immediate action' to protect public health or safety. What is done is done. The required analysis must look mainly to the present and the (near) future. The only steps that can be taken under s 156(1)(a) by way of 'immediate action' are the steps listed in s 155, namely to suspend, or to impose a condition on, a practitioner's registration, or to accept an undertaking from the practitioner, or to accept the surrender of the practitioner's registration. These are all steps directed to the prevention or modification of present and future conduct, not past conduct, on the part of a registered health practitioner.

106 It follows that, so far as considerations of text are concerned, it simply cannot be said that the language of s 156(1)(a) entails a provision that the National Board or appellate tribunal must form a (reasonable) belief about identified but disputed past conduct of the registered health practitioner in all situations except the three situations now suggested by the Board.

107 So far as the statutory context is concerned, the Board said little or nothing about that in its written material. On the other hand, during the final hearing, counsel for the Board did refer to a contextual matter, albeit only by way of rejoinder to a suggestion that the Board's construction would have unfortunate consequences. More particularly, it was put to senior counsel for the Board that the Board's stance in this appeal seemed to be unduly self-limiting, in that, on the Board's own case, it would not be open to the Board (or to any National Board) or to any appellate tribunal to take immediate action under s 156(1)(a) in relation to a health practitioner by reference to allegations about the past conduct of the practitioner unless and until the Board or tribunal formed a reasonable belief that the allegations were true.[183] That would be the position regardless of how dangerous, or even deadly, the alleged conduct may have been, and regardless of the imminence of the harm or damage that would be suffered by the public if the alleged conduct had in fact occurred and were to be repeated or to continue. It was put to senior counsel that in many cases there may be no proper opportunity to form a reasonable belief as to whether or not the allegations were true, but that, on the Board's case, the National Board or the appellate tribunal would still be powerless to act under s 156(1)(a). In response, senior counsel for the Board at first said that 'the context would suggest that you can form a belief on the basis of mere allegations or a complaint, even if they haven't been tested'.[184] Of course, it is possible to form a belief that untested allegations or complaints are true. Indeed, it may well be possible, in some circumstances, to form a reasonable belief that particular untested allegations or complaints are true. However, in my view, for the purposes of s 156(1)(a), it is not generally necessary to form a reasonable belief that (tested or untested) allegations or complaints are true before one can form a reasonable belief that a practitioner poses a serious risk to persons because of the practitioner's conduct (or performance or health). I put this view to senior counsel. His first rejoinder was, in effect, to repeat a submission that had been contained in the Board's written submissions, to the effect that an obligation to form a reasonable belief (that alleged past conduct had or had not happened) is different from, and less onerous than, the obligation of a court in a civil proceeding to determine factual disputes about past events on the balance of probabilities.[185] That particular submission seemed to me, and still seems to me, to be of very doubtful validity. To form a reasonable belief that a certain version of past events is true and/or that a competing version is not true is, to my mind, very similar to determining facts on the balance of probabilities. In any event (and here I return more specifically to the matter of statutory context), senior counsel for the Board ultimately went on to argue that the problem was answered by the existence of s 156(1)(e).[186] In a case of the kind under discussion, senior counsel argued, the National Board or the appellate tribunal could reasonably believe that the taking of immediate action was 'otherwise in the public interest' within the meaning and for the purposes of s 156(1)(e).[187] Indeed, counsel for the Board seemed to argue that s 156(1)(e) had been inserted into the National Law to cover just such a case.[188] Hence, counsel for the Board argued, the Board's construction of s 156(1)(a) would not produce an inconvenient or unintended result in this respect. No such argument had been put at VCAT. Nor had such an argument been included or foreshadowed in the Board's written material in this Court - not even in its written reply, despite Dr Sami's prior contention in his written submissions that the Board's construction of s 156(1)(a) was impractical for this reason.[189]

108 I will assume in favour of the Board, without deciding, that the meaning of s 156(1)(a) is capable of being elucidated by reference to s 156(1)(e), notwithstanding that s 156(1)(e) was inserted in the National Law in 2017, some eight years after s 156(1)(a) was enacted. In other words, I will assume in favour of the Board that the National Law is to be read as a whole and in its current form, incorporating all amendments.[190] However, even so, I consider that the Board's new reliance on s 156(1)(e) for interpretation purposes is misplaced. Counsel did not point to anything in the National Law or in any relevant extrinsic material to support the suggestion that s 156(1)(e) was inserted to cover cases which could not be dealt with under s 156(1)(a) due to an inability to form a reasonable belief about past conduct. In my view, the use of the word 'otherwise' in s 156(1)(e), together with the tenor of the example sub-joined to that provision,[191] indicates that the purpose of the insertion of s 156(1)(e) was, at least in the main, to cover cases outside the general fields already dealt with in paragraphs (a), (b), (c) and (d) respectively.[192] The presence of s 156(1)(e) does little or nothing to support the Board's construction of s 156(1)(a).

109 There are other aspects of the statutory context of s 156(1)(a) that point even further away from the Board's construction of it. Nothing in any part of s 156 expressly imposes any positive duty on a National Board (or appellate tribunal) at all. Rather, s 156 confers a power the availability of which depends on the satisfaction of stated conditions. Moreover, the power is in the nature of an 'own motion' power. Unlike many other powers and functions provided for by Part 8 of the National Law, the power conferred by s 156 exists independently of any notification, application or other step taken on the part of some other person or entity. Further, the field which the exercise of the power conferred by s 156 is apt to affect is the entire field of registered health practitioners and registered health students as existing in Australia at any given time. One would not lightly conclude that s 156(1)(a) authorises each National Board to decide to take, or to consider whether to take, immediate action against all those registered health practitioners in Australia covered by that Board in relation to whom, as at any given time, the Board has not formed a reasonable belief that they have not engaged in some 'identified particular conduct'. As mentioned above, junior counsel for the Board appeared to accept this in his oral reply at the final hearing.[193] In this regard, the immediate action regime under Division 7 of Part 8 may be contrasted with the regime relating to 'notifications' under Divisions 1 to 6 (inclusive) of Part 8. Section 151(1) sets out six circumstances in which a National Board may decide to take 'no further action' in relation to a notification, such as where the National Board reasonably believes that the notification is frivolous or vexatious.[194] If, under s 151, a National Board decides to take no action on a notification, the National Board must give written notice of the decision to the notifier: s 151(3). Outside the six specified circumstances, the National Board must deal further with the notifications. Plainly, the immediate action regime in Division 7 is very different. It does not operate by reference to a notification or any equivalent. It contains no express reference to 'particular identified conduct'. There is no statutory 'trigger' at all. Subject to the Board's last minute apparent submission to the contrary,[195] the Board's submissions in the present case were premised on the view that an appellate tribunal (such as VCAT) is subject to the putative multi-step requirement because the National Board itself is subject to it, and that each is subject to it to exactly the same extent. But, as I have said already, if s 156(1)(a) does not impose the multi-step requirement on a National Board in relation to omissions to take immediate action or in relation to decisions not to take immediate action, how can it be that s 156(1)(a) does impose such a requirement on appellate tribunals? Counsel for the Board did not rely upon or refer to any provision apart from s 156 as a source of the relevant obligation. No particular provision of the Victorian legislation relating to VCAT, nor any provision of the corresponding legislation of other jurisdictions, was cited.

110 Hence, in my view, the statutory context of s 156(1)(a) tends strongly against the Board's case, particularly in relation to omissions to take immediate action or decisions not to take immediate action.

111 So far as considerations of purpose are concerned, the Board contends that the adoption of its construction of s 156(1)(a) would ensure that a risk assessment conducted by a National Board or appellate tribunal under s 156(1)(a) is conducted with appropriate rigour. According to the Board, unless the National Board or appellate tribunal is required to properly identify the conduct in question, it will be unable to properly assess the relevant risk. What I have already said answers this argument. Further, the argument contains a slide. The Board is claiming much more than that the decision-maker should 'properly identify the conduct in question'. It may well be a very good thing for the decision-maker to properly identify any conduct in question, in the sense of properly identifying any relevant conduct that is alleged against, or admitted by, a practitioner. However, it is quite another thing to suggest that the decision-maker should generally be required to resolve disputes about alleged past conduct, to the level of 'reasonable belief', regardless of the state of the material provided for that purpose. In my opinion, as I have already said,[196] imposing a complex, self-contradictory, impractical requirement of the kind proposed by the Board would do more harm than good. Hence, there is no warrant for saying that the insertion of such a requirement would advance the purpose of s 156(1)(a), or the purpose of the National Law as a whole, by way of enhancing 'rigour'.

112 Next, the Board submits that if a National Board does not need to form a reasonable belief about particular conduct, then the practitioner is at a disadvantage in countering allegations made against the practitioner. In that way, the Board submits, the construction of s 156(1)(a) for which it contends accords with what it says is the purpose of s 156(1)(a), namely, to strike an appropriate balance between protection of the public, on the one hand, and transparency, fairness towards the practitioner concerned, and proportionality on the other.[197]

113 In my view, this submission is misconceived. The supposed rule does not promote any of the values just mentioned.

114 The Board's construction of s 156(1)(a) will risk subjecting both practitioners and National Boards to the disadvantage of an artificial starting point. And, far from promoting fairness to practitioners, the Board's construction would involve a risk that a reverse onus of persuasion would, in effect, be imposed on practitioners.

115 Further, in my view, this argument of the Board must confront the familiar problem that attends most, if not all, arguments from statutory purpose: that it is almost always uncertain how far the provisions in question go in seeking to achieve their purpose or purposes. Legislation rarely pursues a single purpose at all costs.[198] Here, as is frequently the case, the legislation strikes a balance between competing interests. To assess whether the balance actually struck incorporates the Board's suggested implied requirements, it is necessary to examine what else the legislation does to pursue its apparent purposes.

116 Clearly enough, Part 8 of the National Law is directed in large part to protecting the public. It plainly pursues the objective set out in s 3(2)(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'. Part 8 provides for the Board (and other bodies) to assess, investigate, refer and take action in response to practitioners' and registered students' conduct, performance and health in a range of ways that need not be repeated.[199]

117 Similarly, two 'guiding principles' of the scheme embodied in the National Law are directed to transparency, fairness and proportionality in the interests of medical practitioners facing disciplinary or other action: first, the principle that the scheme is to operate in a transparent, accountable, efficient, effective and fair way; and, second, that restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.[200] Entities with functions under the National Law must exercise their functions having regard to those guiding principles.[201] Several provisions of Part 8 pursue those ends. That Part provides for the informing of practitioners when the Board receives a notification about their conduct;[202] for a show cause process that must be completed before the Board may take some specified species of immediate action against a practitioner;[203] for the informing of practitioners about steps the Board proposes to take following any immediate action taken against them;[204] for the informing of practitioners about investigations concerning their health, performance or conduct;[205] for the informing of practitioners about health and performance assessments concerning them;[206] for the giving to practitioners of access to assessors' reports concerning them;[207] for a further show cause process that must be completed before the Board can take 'relevant action' against a practitioner;[208] for the informing of practitioners when the Board makes a decision to take relevant action against them;[209] for a requirement that practitioners are to be notified of and permitted to attend hearings of performance and professional standards panels relating to their performance or conduct;[210] for the allowing of representation for health practitioners by legal practitioners and other persons at such hearings;[211] and for the availability of appeals against certain decisions to responsible tribunals.[212] Domestic statutory provisions directed to ensuring procedural fairness in the responsible tribunals are not touched by the National Law.[213] And, naturally, a practitioner may have recourse to ordinary administrative law remedies for denial of procedural fairness. Clearly, then, the legislature saw fit to provide (or not abrogate) a range of specific measures to ensure transparency, fairness and proportionality.

118 The question then becomes, in my view, whether the purpose of the National Law demands the adoption of the multi-step process for which the Board contends as a further means of ensuring that a practitioner is treated fairly at National Board level, or, more to the point, of ensuring that both sides are treated fairly at appellate level. Putting the question another way, is the multi-step process mentioned above required in order to strike the balance between fairness to practitioners and protection of the public that the legislature intended? In my view it is not. For the reasons already given, I consider that mandating the multi-step process would, on balance, significantly disadvantage both practitioners and National Boards. In any event, the legislation pursues the purposes of transparency, fairness and proportionality to the extent provided for in its express terms and in so far as those terms do not abrogate existing protections for practitioners deriving from the VCAT Act and its counterparts and from principles of administrative law. But there is no basis in the stated or apparent purpose or purposes of the National Law to suggest that the legislation goes any further in this regard insofar as 'immediate action' cases are concerned. To read s 156(1)(a) as if it provided for the multi-step approach as a general legal obligation in immediate action matters is to distort the balance struck in the National Law as a whole.

119 Counsel for the Board also submitted that a decision whether to take action under s 156(1)(a) should not be based on considerations analogous to those involved when a court considers whether to grant an interlocutory injunction. Again, that submission involves a slide. The question is not whether decision-making generally under s 156(1)(a) is analogous to determining applications for interlocutory injunctions. It may well be true that one does not ask oneself whether there is a 'prima facie case' or 'a serious question to be tried' or where the 'least risk of injustice' lies or where the 'balance of convenience' lies or whether damages, rather than an injunction, would be a satisfactory remedy.[214] But there is at least one respect in which the analogy is helpful. Very often, immediate action will be followed by related disciplinary action. Indeed, the Victorian Court of Appeal has observed that related disciplinary action should be commenced as soon as practicable and should be dealt with in a timely fashion.[215] In my opinion, as already mentioned, I consider that assistance is to be gained from the long-standing common law principle that courts determining applications for interlocutory relief should refrain, as far as possible, from pronouncing definite opinions on factual issues that will fall to be determined at a later stage on more ample material.[216]

120 Nothing advanced by the Board under the heading of 'purpose' persuades me that any of the Board's constructions of s 156(1)(a) could, much less should, be adopted.

121 Thus, text, context and purpose are all firmly against the Board in relation to the construction of s 156(1)(a).

122 The Board's case on specific precedents may be dealt with a little more summarily.

123 The Board relies principally, and heavily, on Bernadt.[217] It relies only faintly on other cases.

124 There are some cases, mainly at tribunal level, in which deferential reference has been made to a particular passage in the judgment of McLure P in Bernadt, being a passage to which I will shortly come and on which the Board places particular reliance before me.[218] However, as will be seen, I do not read that passage in the way that the Board would have me read it. I do not consider that it warrants adopting any of the interpretations of s 156(1)(a) of the National Law that the Board has advanced in this case. And, as far as I can tell, no such interpretation has ever been endorsed, much less applied, by a superior court. I am not aware of any decision of a superior court in which a decision made at Board or tribunal level has been attacked for failing to apply what the Board now says is the proper interpretation of s 156(1)(a). There may be a few tribunal-level decisions in which something like what the Board now says has been said.[219] Subject to that, the outcome which the Board seeks here would be entirely novel.

125 Contrary to the Board's submissions, Bernadt does not provide any or any sufficient support for the Board's contention that s 156(1)(a) imposes a legal obligation on National Boards and appellate tribunals (or at least on appellate tribunals), when considering whether or not to take immediate action in relation to a health practitioner, to follow the above mentioned 'multi-step' approach, either always or always except in one or more of the three situations ultimately specified by the Board.

126 Sitting as a trial judge of this Court, I would of course be bound by any interpretation of the relevant provisions given by the Victorian Court of Appeal in ratio. And, if an intermediate appellate court of another Australian jurisdiction were to give, in ratio, an interpretation of the relevant provisions that was not inconsistent with a binding decision of the Victorian Court of Appeal, I would be required, unless convinced that the interpretation was clearly wrong, to follow and apply it.[220]

127 The difference between ratio and obiter was explained by Kirby J in Garcia v National Australia Bank Ltd:[221]

It is fundamental to the ascertainment of the binding rule of a judicial decision that it should be derived from (1) the reasons of the judges agreeing in the order disposing of the proceedings; (2) upon a matter in issue in the proceedings; (3) upon which a decision is necessary to arrive at that order. Thus, the opinions of judges in dissent are disregarded for this purpose, however valuable they may otherwise be. Judicial remarks of a general character upon tangential questions or issues not necessary to the decision are likewise discarded, however persuasive the reasoning may appear. In this sense, the rules governing the ascertainment of binding precedent observe principles which are at once majoritarian and precise. Even so great a Justice of this Court as Dixon J cannot speak for the Court unless his reasoning attracts the support, express or implied, of a majority of the participating Justices (disregarding for this purpose any who did not agree in the order of the Court disposing of the proceedings on the point in question). Even then, the remarks will not be part of a binding rule unless they relate to an issue in contention which had to be decided by the Court to reach its order.

128 Consistently with that statement, Kirby J went on to say:[222]

Given the relatively small number of cases about the general law which this Court can accept, it would be unreasonable and undesirable to extend the ambit of dutiful obedience beyond the holdings of the Court to everything said by majority Justices in every decision. That would not only amount to a departure from settled principles governing the doctrine of binding precedent. It would also constitute a departure from the recent encouragement given by this Court to the appellate courts of Australia to play their part in the refinement, development and re-expression of legal principle which cannot, in the nature of things, be wholly left to this Court.

Whilst Courts of Appeal and Full Courts throughout Australia may be expected to pay close attention to the opinions on legal principle of individual Justices of this Court, particularly where they are part of a majority on a given issue, those courts are not bound in law by such observations or by obiter dicta or analysis that is not essential to the holding of the Court sustaining its orders. We should not seek to impose a precedential strait-jacket at a time when, because of social and other changes, refinement and development of legal principle is often more important than it was in the past. The present case is a good illustration of that need.

129 On the other hand, I acknowledge that the National Law is the centrepiece of a scheme of uniform, or nearly uniform, national legislation, and that, therefore, generally speaking, it is desirable that all Australian jurisdictions strive for consistency in the interpretation of the National Law.[223] This adds strength to the normal principles of comity that apply as between the courts of the various Australian jurisdictions.[224] However, in my view, as already indicated, Bernadt simply does not do anything like the work that the Board would attribute to it.

130 The present case is about the proper interpretation of a statutory provision. Indeed, it is about, only, the proper interpretation of a single statutory provision, namely, s 156(1)(a) of the National Law. Accordingly, in dealing with the Board's submissions about the decided cases, it is useful to recall the following observations of Lord Upjohn, speaking for the Privy Council in an appeal from the High Court of Australia in a matter relating to the Workers Compensation Act 1958 (Vic), his Lordship having just remarked that the interpretation of the Act favoured by the majority of the High Court and by the Privy Council itself had faced a 'formidable body of authority' tending to show that a different view had been taken of the relevant provisions of the Act and of the corresponding legislation in the United Kingdom,[225] such that their Lordships needed to examine some of the cases:[226]

[Their Lordships] desire to reiterate however what has so often been said before that in a common-law system of jurisprudence which depends largely upon judicial precedent and the earlier pronouncements of judges, the greatest possible care must be taken to relate the observation of a judge to the precise issues before him and to confine such observations, even though expressed in broad terms, to the general compass of the facts before him, unless he makes it clear that he intended his remarks to have a wider ambit. It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case this language may be misapplied and any attempt at such perfection of expression could only lead to the opposite result of uncertainty or even obscurity as regards the case in hand.

These general principles are particularly important when questions of construction of statutes are in issue.

It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself.

No doubt a decision on particular words binds inferior courts on the construction of those words on similar facts but beyond that the observations of judges on the construction of statutes may be of the greatest help and guidance but are entitled to no more than respect and cannot absolve the court from its duty of exercising an independent judgment. It is with these principles in mind that their Lordships approach this very considerable body of authority.

Lord Upjohn's observations continue to be referred to with approval.[227]

131 Bernadt concerned immediate action proceedings against a medical practitioner, Dr Bernadt, who practised as a specialist otolaryngologist, also known as an ENT specialist. In about 2010, a body established and constituted under the Medical Practitioners Act 2008 (WA) ('MPA') formed the opinion that Dr Bernadt posed a risk of imminent harm of injury to patients on whom he operated, and, acting under the MPA, it prohibited him from operating for 30 days.[228] Dr Bernadt applied for a review of that decision to the Western Australian State Administrative Tribunal ('WASAT'). The WASAT ordered that the decision to prohibit Dr Bernadt from operating be set aside and that he submit to an assessment of his clinical competence. A clinical assessment later took place accordingly. By that time, the Health Practitioner Regulation National Law (WA) Act 2010 (WA) ('WA Act') had come into force, applying the National Law in Western Australia and repealing the MPA.[229] The clinical assessment concluded that Dr Bernadt's methods of practice were inconsistent with contemporary specialist otolaryngology, and that he required extensive re-skilling and training. The Medical Board then took immediate action in relation to Dr Bernadt under s 156(1)(a) of the National Law by way of suspension of his registration. Dr Bernadt was then about 70 years of age. He appealed to the WASAT under s 199 of the National Law.[230]

11 Review of decision by State Administrative Tribunal as responsible tribunal

A reference in the Health Practitioner Regulation National Law (Western Australia) to an appeal against a decision is, for an appeal to the State Administrative Tribunal as the responsible tribunal, a reference to a review of the decision as provided under the State Administrative Tribunal Act 2004 Part 3 Division 3.

133 Part 3 Division 3 of the State Administrative Tribunal Act 2004 (WA) provided expressly that a review thereunder was a review de novo.[231]

134 Dr Bernadt's appeal to the WASAT against the immediate action decision occupied five hearing days, and the parties approached the proceeding as if it was in the nature of a hearing of an allegation of professional misconduct.[232] Both sides were represented by counsel and the appellant and the assessor were cross-examined.[233] This may be contrasted with Dr Sami's case at VCAT, which, as all sides agreed, was not to be treated as the hearing of an allegation of professional misconduct; there was no oral evidence and no cross-examination; and it was completed inside a single day.

135 WASAT upheld Dr Bernadt's suspension. On the way to its decision, WASAT made the following five rulings, being principally rulings of law:[234]

• the power to take immediate action under s 156 of the National Law is interim or interlocutory in nature;

• however, because a practitioner's reputation or capacity to earn a livelihood in their registered vocation was at stake, WASAT must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach, in order to form a reasonable belief under s 156 of the National Law;

• after a decision to take immediate action in relation to a practitioner, s 158 of the National Law imposes an obligation on the National Board to take 'further action' in relation to that practitioner;

• nevertheless, a decision to take immediate action should not be expressed as continuing to have effect until the final determination of further action to be taken by the National Board, because this would conflict with s 159(2) of the National Law;

• WASAT had no power to refer the matter back to the National Board with a direction that it take 'further action' under s 158, because WASAT had no jurisdiction to review the failure of the National Board to make a decision in relation to further action, its jurisdiction being limited to reviewing the decision of the Board to suspend Dr Bernadt's registration under s 156.

However, for the main part, the matter was determined on the facts and the evidence. WASAT upheld the suspension mainly because it accepted the evidence and the views of the assessor as against those of Dr Bernadt.

136 Dr Bernadt appealed against WASAT's decision to the Court of Appeal. Under the relevant Western Australian legislation, such an appeal extended to questions of fact as well as questions of law.[235] There were six lengthy grounds of appeal, which were later summarised by one of the Judges of Appeal,[236] in a way apparently accepted by the other two members of the Court,[237] as follows:

1. The Tribunal erred in fact by forming the belief that the appellant posed a serious risk to persons and that his suspension from practice was necessary to protect public health on the ground that he:

(a) failed to take or record adequate medical histories from patients (ground 1);

(b) failed to conduct adequate audiometry on patients (ground 2);

(c) lacked up-to-date medical knowledge (ground 3); and

(d) failed to follow up patients and did not have a system in place to follow up patients (ground 4).

2. The Tribunal erred in law in failing to conclude that the power of the respondent under s 156 of the National Law was only a power to take action pending final determination of the further action which the respondent was obliged to take against a registered health practitioner by s 158 (ground 5);

3. Having found that s 158 of the National Law imposed an obligation on the respondent to take further action against the appellant and that the respondent had failed to take further action, the Tribunal erred in law and fact by failing to refer the matter back to the respondent pursuant to s 29(3)(c) of the SAT Act (ground 6).

137 Thus, grounds 1-4 related directly and solely to the evidence and the facts, and that is exactly how they were understood and dealt with.[238]

138 Ground 5 raised a point of construction concerning the inter-relationship between ss 156, 158 and 159 of the National Law. This ground related to the third and fourth of WASAT's rulings of law as set out above. As originally framed, Dr Bernadt's complaint under ground 5 was that WASAT's suspension of his registration was not, but should have been, expressed to expire upon the conclusion of the 'further action' which, according to WASAT's own third ruling of law, the National Board should have commenced after the National Board had suspended Dr Bernadt.

139 In oral submissions before the Western Australian Court of Appeal, counsel for Dr Bernadt went beyond the terms of ground 5 as pleaded. Counsel submitted, in effect, that the obligation of the National Board to decide, and to state in the notice under s 158, what further action the National Board proposed to take was an integral part of the decision to take immediate action, and that the failure of the Board in this case to do so had the result that the immediate action was invalid.[239]

140 Ground 6 asserted, in essence, that WASAT did have the requisite jurisdiction and power to refer the matter back to the National Board with a direction under s 158 that it take 'further action' and that WASAT should have given such a direction.

141 While the appeal to the Western Australian Court of Appeal was pending, the National Board actually commenced 'further action' against Dr Bernadt. Thus ground 6 was overtaken by events and had lost any utility. It was not pressed on the hearing of the appeal.[240]

142 There is nothing to indicate that the National Board raised any cross-contention of fact or law in Bernadt.

143 The Court of Appeal dismissed the appeal on all grounds. Each judge (McLure P, Newnes JA and Murphy JA) delivered separate reasons. Before me, the Board relies mainly on the judgment of McLure P.

144 However, it should be noted immediately that McLure P commenced her reasons by saying:[241]

I agree with Newnes JA that the appeal should be dismissed. I agree that grounds of appeal 1, 2, 3, 4, and 6 should be dismissed for the reasons given by Newnes JA. I propose to state my own reasons on a number of issues of statutory construction that arise for determination in this appeal.

145 By contrast, Newnes JA did not refer to the judgment of McLure P at all.

146 Murphy JA commenced his judgment as follows:[242]

I have had the advantage of reading in draft the judgments of McLure P and Newnes JA. I respectfully adopt Newnes JA's observations as to the relevant background, the grounds of appeal and the issues. I respectfully agree with Newnes JA that grounds 1, 2, 3, 4 and 6 should be dismissed for the reasons that he gives. The following reasons are directed to the issues raised in ground 5.

Murphy JA made no other reference to the judgment of McLure P.

147 In those circumstances, it may be said that the leading judgment is that of Newnes JA, not that of McLure P.

148 Further, while each of McLure P, Newnes JA and Murphy JA held that neither ground 5 nor its 'extension' should be upheld, each judge did so for different reasons. And even though ground 5 and its extension related principally to the relationship between ss 156, 158 and 159 rather than to the construction of s 156 itself, the differences between McLure P, Newnes JA and Murphy JA in relation to ground 5 are indirectly relevant for the purposes of the present case, as I will further mention in due course.

149 At this stage, however, it is more important to note that there was no ground of appeal at all that criticised WASAT's reasoning in relation to what a National Board or an appellate tribunal needs to do by way of considering the evidence or other material before it in a matter under s 156(1)(a). Dr Bernadt was certainly not contending that WASAT should have adopted more stringent fact-finding techniques or applied some different standard of proof. More particularly, there was no ground of appeal at all that expressly or impliedly raised the proper construction of s 156(1)(a) in relation to fact-finding. Nor, apparently, was the respondent Board troubled about WASAT's reasoning in those respects. As mentioned above, there is no indication that it raised raise any cross-contention at all.

150 It follows, in my view, that anything that may have been said in Bernadt about the principles to be applied in relation to factual issues arising under s 156(1)(a) had to be obiter, not ratio. This context is also significant for the purposes of interpreting anything that the judges in Bernadt may have had to say on this topic.

151 It is true that McLure P expressly noted that WASAT had ruled that '[WASAT] must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach, in order to form a reasonable belief under s 156 of the National Law';[243] and it is clear that, whatever position the parties may have taken on the appeal, her Honour thought it desirable to contradict WASAT on this matter - perhaps to indicate to Dr Bernadt that, on any view, he was far from having a legitimate complaint about WASAT's conclusions on the facts and the evidence. In any event, her Honour made her point in this respect in the following passage, being the above mentioned passage on which the Board has placed great store in this Court:

[62] The starting point for determining what is required in order to make an immediate action order under s 156(1)(a) is the statutory text. The starting point is not the question whether power can be characterised as interim, interlocutory or otherwise.

[63] The Board (and [WASAT] in the exercise of its review function) must believe, and have reasonable grounds for believing, the matters specified in s 156(1)(a)(i) and (ii): Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [130]-[145].

[64] The existence of a reasonable belief is a jurisdictional 'fact' that enlivens the power in s 156(1)(a) to take immediate action: Eshetu [130]; Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 [57]; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [183].

[65] It is necessary to identify with precision what it is that must be the subject of the reasonable belief. There are three components in subpars (i) and (ii) of s 156(1)(a), one factual and two evaluative. They are:

(i) (1) because of (that is, by reason of) the practitioner's conduct, performance or health

(2) the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety.

[66] The 'reasonable belief' requirement applies, in my view, to the three components, including the factual substratum ((i)(1)) on which the evaluative assessments (in (i)(2) and (ii)) are to be made. That being so, the fact or facts directly in issue concerning a practitioner's conduct, performance or health do not have to be proven on the balance of probabilities: George v Rockett [1990] HCA 26; (1990) 170 CLR 104. However, there must be proven objective circumstances sufficient to justify the belief.[244]

152 I would respectfully make the following comments on her Honour's observations.

153 In the first sentence of [62], her Honour makes clear that she is about to deal with what is required to make an immediate action order, as distinct from not making one. In the next sentence, her Honour opines that the question whether the power under s 156(1)(a) can be characterised as interim, interlocutory or otherwise is not the 'starting point'. However, her Honour does not say that such a characterisation, if appropriate, would be irrelevant to the statutory interpretation exercise. It is true that, elsewhere in the judgment, her Honour seems to indicate that it is her view that the power to take immediate action should not be characterised as interim or interlocutory[245] or, at least, that not all decisions under s 156(1)(a) are intended to be interim or interlocutory.[246] However, most unhelpfully to the Board's arguments before me that are claimed to be based on considerations of precedent, McLure P appears to disagree quite strongly with the unanimous judgment of the Victorian Court of Appeal in Kozanoglu insofar as the Court in Kozanoglu 'described s 156 as providing only interim protection'.[247] In Bernadt, on this particular point, Murphy JA expressed a view comparable with that of McLure P, albeit with a qualification:[248]

It is unhelpful to label the Board's powers under div 7 as 'interlocutory' in nature as contended for by the appellant. Even though they may be exercised from time to time, they are nevertheless final in that they take effect for the period referred to in s 159(2) of the Law as discussed in [283] to [285] above. However, they are also exercisable in the context that the Board must give effect to any decision by a panel or the Tribunal (s 205). Accordingly, the Board's immediate action may, in due course, effectively be overtaken by a decision of a panel or the Tribunal.

As indicated above, Murphy JA indicated that his separate judgment was directed solely to ground 5 - the ground concerning the inter-relationship between ss 156, 158 and 159.[249] So it seems that his Honour's words were not directed to any issue or question or point about the facts or fact-finding. However that may be, there remains a contrast between the judgment of Murphy JA in Bernadt and Kozanoglu, which is similarly unhelpful to the Board's argument. And, in addition to Kozanoglu, there are many other instances where immediate action taken under s 156(1)(a) has been described as interim or interlocutory. For example, in Bernadt itself, Newnes JA, albeit while he himself was dealing with ground 5, said that immediate action was 'of an interim nature' and referred to Kozanoglu with apparent approval in this respect.[250] Further instances are referred to in [4], footnote 4 and [54] above, including an instance in the Board's own submissions to VCAT in this very matter.[251]

154 Returning more specifically to [62]-[66] of the judgment of McLure P in Bernadt, I note that, in [63], her Honour says that the Board (and the review body) must believe, and have reasonable grounds for believing the matters 'specified' in s 156(1)(a)(i) and (ii). As explained above, in my view only two things that are required to be reasonably believed are 'specified' in s 156(1)(a). Her Honour says nothing to the contrary in [63].

155 There is no controversy about the statement of McLure P in [64] that the 'existence of a reasonable belief is a jurisdictional "fact" that enlivens the power in s 156(1)(a) to take immediate action'. However, it does not help the Board that her Honour there uses the singular, referring to 'a' reasonable belief.

156 Correspondingly, her Honour thrice uses the singular in [65], referring to 'what it is that must be the subject of the reasonable belief'.[252]

157 Incidentally, I note that senior counsel for the Board conceded at the final hearing, correctly in my view, that when McLure P said that 'it is necessary to identify with precision what it is that must be the subject of the reasonable belief', her Honour was referring to the requirements of the construction exercise on which she herself had embarked; she was not saying, here, that it was necessary for a National Board or a review tribunal to identify anything.[253]

158 Having several times used the singular in referring to the requisite 'reasonable belief', McLure P then says that there are three 'components' in sub-paragraphs (i) and (ii) of s 156(1)(a), one factual and two evaluative. Her Honour breaks up s 156(1)(a)(i) so as to refer separately to two of those 'components', using punctuation different from the punctuation of the provision as enacted. Doing such a thing can sometimes lead to errors of understanding or interpretation. I venture to repeat what I said in Mornington Peninsula Beach Box Association Inc v Mornington Peninsula Shire Council in this regard:[254]

I also bear in mind the following warning stated by Callinan and Heydon JJ in XYZ v Commonwealth:[255]

It is sometimes inappropriate to dissect a composite phrase into particular parts, give each part a meaning which that part has when used in isolation and combine those meanings so as to give the composite phrase a meaning at odds with the meaning it has when construed as a composite phrase:[256]

[It is a] fallacy ... to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence ... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.

Likewise, in Bourne v Norwich Crematorium Ltd[257] in a passage picked up by Professor Pearce in his leading work on statutory interpretation in Australia,[258] Stamp J said:

Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.

159 The Board's submissions in the present case, which I regard as erroneous, may be attributable to a misreading of s 156(1)(a) that may, in turn be due to the way in which the words of s 156(1)(a) are presented in [65] of the judgment of McLure P. On the other hand, I do not infer from her Honour's words that she herself meant what the Board now attributes to her. Her Honour spoke of 'components'. A component is a part of a whole. It is not separate from the whole. In any event, her Honour said nothing to the effect that the 'components' had to be considered separately, or in any particular order. To read s 156(1)(a) in such a way would be wrongly to disregard the language and syntax of the provision as a whole.

160 In the last paragraph, [66], of the passage in question, McLure P commences by again using the singular ('The "reasonable belief" requirement'),[259] consistently with my view that the statutory task for the National Board or the appellate tribunal is an integrated one which admits of an 'holistic' approach of the kind followed by VCAT in the present case. McLure P says that, in her view, the reasonable belief requirement applies to the three 'components', 'including the factual substratum ((i)(1)) on which the evaluative assessments (in (i)(2) and (ii)) are to be made'. Once again, to my mind, this language is consistent with seeing s 156(1)(a) as an integrated whole, without the artificial divisions for which the Board contends. The word 'substratum' connotes underlying connection, not separate existence or a separate exercise.

161 McLure P concludes that 'the fact or facts directly in issue concerning a practitioner's conduct, performance or health do not have to be proven on the balance of probabilities', but that 'there must be proven objective circumstances sufficient to justify the belief'.[260] This is not the same as saying that, by virtue of the provisions of s 156(1)(a), the National Board or the appellate tribunal must always or generally form and express a (reasonable) belief as to where the truth lies on 'centrally important' or 'core' or 'essential' points of fact, regardless of the state of the material, regardless of the way in which the parties themselves have approached the matter and regardless of whether the ultimate decision is to take immediate action or not.

162 It was said in WD v Medical Board of Australia[261] that 'an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations'. In my view, McLure P was not saying anything different. In saying that 'there must be proven objective circumstances sufficient to justify the belief', her Honour was, I consider, referring to objective circumstances sufficient to justify the belief actually specified in s 156(1)(a), namely that the practitioner poses a (conduct-related, performance-related or health-related) serious risk to persons and that it is necessary (accordingly) to take immediate action, as distinct from a belief that some 'particular identified conduct' actually occurred in the past. In my view, for the purposes of the immediate action regime (and for the purposes of s 156(1)(a) in particular), a very serious allegation made by a seemingly reliable person may well be capable of supplying 'objective circumstances sufficient to justify' the statutorily specified belief, even where the decision-maker does not form and express a 'belief' that the allegation is true. The position is even clearer in relation to the opposite case - a decision not to take immediate action (such as the present case).

163 If, contrary to my view, McLure P's observations were, in truth, to the effect that s 156(1)(a) contains an implied rule of the kind contended for by the Board, I would respectfully decline to follow them. However those observations may be read, they were not essential to her Honour's conclusions on the actual issues in the case. Much less were they part of any ratio of the decision of the Court of Appeal as a whole, as I will further indicate in a moment. In addition, if those observations were to be read as the Board would have me read them, they would, I am convinced, be clearly wrong, for the reasons set out extensively above.

164 In my view, contrary to the Board's submissions, there is absolutely nothing in the (leading) judgment of Newnes JA that supports the Board's present case. Quite the reverse. While dealing with ground 5, Newnes JA spoke of the 'interim nature' of immediate action under Division 7, 'as appears from the statutory language';[262] and said that this is reflected in the use of the expression 'immediate action' which 'suggests a certain standard of speediness on the Board's part in order to provide interim protection of the public', citing Kozanoglu.

165 This was also reflected, his Honour said, in the 'relatively summary process' provided for in Division 7.[263] Newnes JA continued:[264]

The Board is entitled, by way of immediate action, to suspend a practitioner's registration, or impose a condition on it, on the basis of a reasonable belief that it is necessary to take such action because the practitioner's conduct, performance or health poses a serious risk to persons. Whilst the practitioner must be given notice of the proposed immediate action before it is taken and an opportunity to make submissions on it, no provision is made at that stage for the practitioner to be given any real opportunity to test the factual basis of the Board's belief.

166 Moreover, when Newnes JA commenced to deal with the factual and evidentiary grounds (grounds 1-4), his Honour said this:

The appellant contended under these grounds that the evidence before the Tribunal was insufficient to enable it to form a reasonable belief that the appellant posed a serious risk to persons and that his suspension from practice was necessary to protect public health.

Before turning to the particular grounds relied on by the appellant, it is necessary to identify the Tribunal's task. An appeal to the Tribunal under s 199(1)(h) of the National Law is a hearing de novo: s 27(1) of the SAT Act. The task of the Tribunal is to produce the correct and preferable decision at the time of the review: s 27(2). Accordingly, the question before the tribunal was whether it reasonably believed that because of his conduct or performance the appellant posed a serious risk to persons and that it was necessary to take immediate action to protect public health. The Tribunal was not required to make findings as to whether in fact the appellant posed a serious risk to persons or whether immediate action was in fact necessary to protect public health. The question was whether the Tribunal held a reasonable belief as to those matters, not whether those matters were the fact.

Newnes JA then referred to George v Rockett[265] in which the High Court had said that belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and that the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.[266] Newnes JA then said that a 'reasonable belief' similarly requires the existence of facts which are sufficient to induce the belief in a reasonable person.[267] His Honour had already, plainly, identified the kind of 'belief' to which he was here referring, ie, the kind expressly specified in s 156(1)(a). So his Honour's remarks here are entirely consistent with the absence of a general requirement on National Boards and appellate tribunals to express a preference as between competing versions of past events.

167 As mentioned above, in relation to grounds 1-4, Murphy JA simply agreed with Newnes JA.

168 I return to ground 5 of Bernadt (as extended) and its treatment by the three judges respectively. McLure P concluded that there was no universal obligation to take 'further action' under s 158 after taking immediate action under s 156, but that Dr Bernadt's case was one in which further action should have been taken.[268] Newnes JA concluded that there was a universal obligation to take further action after immediate action, and that, therefore, the Board had been wrong not to do so straight away in Dr Bernadt's case.[269] Murphy JA decided that there might, theoretically, be cases in which there would be no obligation to take further action, but that this was clearly not one of them.[270] Each judge held that the matter of further action was subsequent to the immediate action decision and did not impinge on the regime in s 159 for the expiry of immediate action. Each agreed that the omission to take further action did not render the immediate action decision invalid.[271]

169 As mentioned above, ground 5 is indirectly relevant for present purposes, in that the question whether immediate action should be regarded as 'interim' or 'interlocutory' was seen by each of the judges to be relevant to the disposition of ground 5.[272] This consideration also bears on the proper interpretation of s 156(1)(a) itself. Thus, the differences between the judges in Bernadt in relation to ground 5 make Bernadt all the less an authority that should induce me to accept the Board's case.

170 Further, as already mentioned, to the extent that McLure P and Murphy JA disagreed with Kozanoglu, their judgments would seem to carry less weight in Victoria. Counsel for the Board did not submit that Kozanoglu was wrongly decided in any way.

171 I have mentioned, also, that differences exist between the ancillary legislation of Western Australia and that of Victoria, as at the times when Kozanoglu and Bernadt, respectively, were decided. It may be that what the Court of Appeal said in Kozanoglu about a review in VCAT of an immediate action decision being neither de novo nor a strict appeal but rather a 'hybrid' will need to be reconsidered at some stage. After Kozanoglu was decided, in 2012, the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) was amended to introduce s 6A, which affects this.[273]

172 What the Court of Appeal said in this respect in Kozanoglu was also possibly obiter, in that neither side in that case sought to rely on events or things that had happened after the National Board's decision. I note that in at least some recent cases in Victoria, including the present, intervening events and things have been considered, on the basis that VCAT should have the most up-to-date material.[274]

173 In any event, nothing further need be said about the appeal provisions because, quite correctly, the Board did not submit that they could affect the proper construction of s 156(1)(a) of the National Law.

174 Finally, I note that what happened, relevantly, at VCAT in Dr Sami's case is fully consistent with the following observations of the ACT Administrative Tribunal in Helmy v Medical Board of Australia ('Helmy'):[275]

By agreement of the parties there was no cross-examination of witnesses as to the facts of the alleged incidents. This approach is appropriate, for at least two reasons. First, the nature of the decision under section 156 of the National Law does not require the decision-maker to determine what has happened in relation to the current notification but rather to form a view as to risk, and then consider what, if any, action should be taken to address that risk. Secondly, the question of what, if anything, occurred during each incident may ultimately fall to a future tribunal or a Court to determine.

175 In the very recent decision of the ACT Administrative Tribunal in Speldewinde v Medical Board of Australia[276] that passage of Helmy was cited with approval, and, indeed, it was said that the tribunal had been 'assisted by the decision of Sami v Medical Board of Australia [2021] VCAT 449 and the principles there set out'.[277]

176 Leave to appeal will be granted. The appeal will be dismissed. Presumably, costs should follow the event, and I will make a provisional order accordingly, but reserve liberty to the parties to apply by written notice by 10 March 2022 for any different or further order as to costs.

[1] See Sami v Medical Board of Australia (Review and Regulation) [2021] VCAT 447.

[2] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, [14] citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69]-[71]; Alcan Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, [47]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

[3] Health Practitioner Regulation National Law Act 2009 (Qld).

[4] Medical Board of Australia v Liang Joo Leow [2019] VSC 532 ('Leow'), [78] (Niall JA), as cited by VCAT below, quoting in turn from the Board's written submissions to VCAT: [2021] VCAT 447, [23]. See [54] below. See also Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; (2012) 36 VR 656, 661 [28], 674 [107], 677-8 [126]-[127] ('Kozanoglu'); Nitschke v Medical Board of Australia (No 1) (2015) NTLR 55, 68 [24]; cf Bernadt v Medical Board of Australia [2013] WASCA 259, [62] (McLure P), [151]-[154] (Newnes JA), [298] (Murphy JA) ('Bernadt').

[5] Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 6.

[6] See Sami v Medical Board of Australia [2021] VCAT 447, especially at [62]-[63]. The Board, in its own original decision making in relation to Dr Sami and in its submissions to VCAT, relied not only on s 156(1)(a) but also on a related provision, s 156(1)(e). The latter authorises immediate action where 'the National Board reasonably believes the action is otherwise in the public interest'. However, VCAT determined that it was not appropriate to maintain Dr Sami's suspension under either s 156(1)(a) or s 156(1)(e). Before this Court, the Board does not allege that VCAT made any error of law insofar as VCAT declined to uphold the Board's case under s 156(1)(e).

[7] Transcript of proceedings in this Court ('T'), 18.

[11] T 39-40. On the other hand, the Board submits (T 19-20, 99) that, in this (third) situation, it would be open to consider taking immediate action under s 156(1)(e), a provision referred to in n 6 above. And see further below.

[16] Dr Sami's written outline of submissions in this Court dated 25 November 2021 ('Dr Sami's outline') [43]-[49].

[18] [2013] WASCA 259.

[20] Health Practitioner Regulation National Law Act 2009 (Cth); Health Practitioner Regulation National Law Act 2009 (Qld); Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW); Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic); Health Practitioner Regulation National Law (ACT) Act 2010 (ACT); Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT); Health Practitioner Regulation National Law (Tasmania) Act 2010 (Tas); Health Practitioner Regulation National Law (South Australia) Act 2010 (SA); Health Practitioner Regulation National Law (WA) Act 2010 (WA).

[21] Health Practitioner Regulation National Law Act 2009 (Qld) sch 1 ('National Law') s 23.

[31] National Law pt 8 div 13. As to the nature of the 'appeals' provided for under the statutory scheme, see further below.

[33] Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) ss 6, 6A(1).

[34] [2013] WASCA 259. Bernadt is the abovementioned case on which the Board places great reliance.

[35] Health Practitioner Regulation National Law and Other Legislation Amendment Act 2017 (Qld) s 24.

[36] This contention was raised for the first time in the Board's oral submissions at the final hearing. See further below.

[38] 'Proceeding' means 'a legal or other action or proceeding': see the definition of 'proceeding' in s 12 of schedule 7 of the National Law, which in turn is picked up by s 6 of the National Law.

[39] See, eg, Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, [26] (French CJ), [63]-[66] (Hayne, Kiefel and Bell JJ), [88]-[92] (Gageler J).

[40] Dr Sami's statement dated 11 December 2020, Court Book ('CB') 190.

[41] Dr Sami's submissions to the Board dated 26 July 2019, CB 31-32.

[42] Sami v Medical Board of Australia [2021] VCAT 447, [20].

[44] Police statement of XYZ dated 1 May 2019, CB 23.

[45] Dr Sami's statement dated 11 December 2020, CB 193.

[46] Police statement of XYZ dated 1 May 2019, CB 25-27.

[47] Dr Sami's statement dated 11 December 2020, CB 193.

[48] Undated statement of material facts prepared by Victoria Police, CB 60.

[49] Affidavit of Louisa Clare Ashton dated 10 June 2021 ('Ashton Affidavit'), CB 7.

[50] Transcript of record of interview between police officer and Dr Sami dated 9 July 2019, CB 158-176.

[51] Letter from AHPRA to Dr Sami's solicitors dated 30 July 2019, CB 40-52, 44.

[53] Sami v Medical Board of Australia [2021] VCAT 447, [5].

[54] Form 29 Notice of Committal Mention Date and Hand-up Brief, CB 56.

[57] Sami v Medical Board of Australia [2021] VCAT 447, [6].

[60] Dr Sami's statement dated 11 December 2020, CB 190-201.

[64] Letter from AHPRA to Dr Sami's solicitors dated 5 January 2021, CB 202-205.

[65] Sami v Medical Board of Australia [2021] VCAT 447, [20].

[68] Board's submissions to VCAT dated 24 March 2021, CB 232-250.

[69] Dr Sami's submissions to VCAT dated 1 April 2021, CB 251-259.

[70] Senior counsel for the Board indicated in this Court that in the significant majority of immediate action cases before the VCAT, there is no cross-examination: T 16.

[71] Sami v Medical Board of Australia [2021] VCAT 447, [9]. On 7 December 2021, during the hearing in this Court, counsel for the Board indicated that a proceeding accusing Dr Sami of professional misconduct had (eventually) been commenced at VCAT and that it was scheduled for an 'administrative mention' in February 2022: T 72.

[72] Transcript of proceedings before VCAT on 7 April 2021, CB 406.

[73] Sami v Medical Board of Australia [2021] VCAT 447, [42].

[74] Letter from the Board's solicitors to VCAT dated 14 April 2021, CB 262.

[75] See Board's written outline of submissions in this Court dated 4 October 2021 [2]-[3] ('Board's outline'); T 95. Compare Board's outline [56]-[60]; VCAT Act s 117; Burgess v McGarvie [2013] VSCA 142, [61]-[65].

[76] See the Board's notice of appeal, CB 1-3, and note the oral submissions made by the Board's senior counsel at the final hearing: T 4, 9, 54.

[77] See Board's outline [63(c)], [63(d)]; and note the oral submissions of senior counsel for the Board at T 71 acknowledging, in effect, that the Board's decision was reasonably open to it.

[78] Sami v Medical Board of Australia [2021] VCAT 447, [3].

[81] The reference to the public interest here is a reference to the above mentioned provisions of s 156(1)(e).

[82] Sami v Medical Board of Australia [2021] VCAT 447, [8]-[9].

[88] But see n 92 below.

[89] Here, the Board had cited Leow [78] (Niall JA).

[91] Citing Bernadt [66]; Ahmad v Medical Board of Australia [2017] VCAT 1646, [71] and Ellis v Medical Board of Australia [2020] VCAT 862, [50] ('Ellis').

[92] If and insofar as this part of the Board's written submissions to VCAT amounted to a submission along the lines of any of the Board's present submissions to this Court, plainly VCAT did not, in the end, accept it, and this notwithstanding that, according to the Board, VCAT did 'recognise' that its 'first task' was 'to form a reasonable belief as to Dr Sami's conduct': see Board's outline [53].

[93] Citing Farshchi v Chinese Medicine Board of Australia [2018] VCAT 1617, [44] ('Farshchi').

[95] Citing Syme v Medical Board of Australia [2016] VCAT 2150, [35]-[37] ('Syme').

[96] Citing ibid quoting Oglesby v Nursing and Midwifery Board of Australia at [2014] QCAT 701, [20] ('Oglesby') (emphasis in original).

[97] Citing Syme [160]-[170], Ellis [91]-[92].

[100] See Sami v Medical Board of Australia [2021] VCAT 447, [23] being the part thereof quoting [34]-[42] of the Board's written submissions to VCAT.

[101] [2012] VSCA 295; (2012) 36 VR 656.

[102] Bernadt [60]-[61] (McLure P).

[103] Sami v Medical Board of Australia [2021] VCAT 447, [24].

[108] Ibid, [43] citing Syme [35].

[109] Sami v Medical Board of Australia [2021] VCAT 447, [47]-[52].

[111] [1990] HCA 26; (1990) 170 CLR 104.

[112] Sami v Medical Board of Australia [2021] VCAT 447, [52].

[113] I interpolate that VCAT is here referring to Bernadt.

[114] Sami v Medical Board of Australia [2021] VCAT 447 [53]-[60].

[115] Board's outline, [40]. See also Board's outline, [42].

[116] Sami v Medical Board of Australia [2021] VCAT 447, [61]-[66]. Emphasis added by the Board: Board's outline, [40].

[117] Sami v Medical Board of Australia [2021] VCAT 447, [67].

[119] [2018] VCAT 1617.

[120] Sami v Medical Board of Australia [2021] VCAT 447, [69]-[70].

[126] Sami v Medical Board of Australia [2021] VCAT 447, [86]-[87].

[128] Sami v Medical Board of Australia [2021] VCAT 447, [88]-[97]. Emphasis as added by the Board in [41] of the Board's outline. See also Board's outline, [42].

[129] Sami v Medical Board of Australia [2021] VCAT 447, [98]-[99] (paragraph numbers again included for similar reasons).

[132] See above [48].

[133] See Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408, [54] (Gageler J), [127] (Edelman J).

[134] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, [25] (French CJ and Hayne J); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664, [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ) to the effect that the task of statutory construction involves 'the attribution of meaning to statutory text'.

[135] See the cases cited in n 2 above. See also my judgment in Mornington Peninsula Beach Box Association Inc v Mornington Peninsula Shire Council (2021) 248 LGERA 142, 177 [105] and the cases there referred to.

[136] [2017] HCA 34; (2017) 262 CLR 362, [14].

[137] Citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, [47].

[138] Citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

[139] (2014) 253 CLR 531.

[140] Ibid [37]-[38], citations omitted.

[141] [1980] AC 74.

[142] [2000] UKHL 15; [2000] 1 WLR 586, 592.

[143] Taylor v Owners-Strata Plan No 11564 (2014) 253 CLR 531, [39]; Perry Herzfeld and Thomas Prince_, Interpretation_ (Law Book Co, 2nd ed, 2020) [5.320] and cases there cited.

[144] See also my judgment in Mornington Peninsula Beach Box Association Inc & Anor v Mornington Peninsula Shire Council (2021) 248 LGERA 142, 176-177 [103] and the cases there referred to.

[145] Taylor v Owners-Strata Plan No 11564 (2014) 253 CLR 531, 548 [38] (French CJ, Crennan and Bell JJ); Herzfeld and Prince (n 143) [5.330] and cases there cited. See also my judgment in Mornington Peninsula Beach Box Association Inc & Anor v Mornington Peninsula Shire Council (2021) 248 LGERA 142, 176-177 [103] and the cases there referred to.

[146] Compare Regis Aged Care Pty Ltd & Ors v Secretary, Department of Health (2018) 261 FCR 120, 146 [130]; Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths. 9th ed, 2019) [2.1], [2.13], [2.56].

[147] Until almost the last moment of the final hearing, it had been the Board's contention that the putative requirements of s 156(1)(a) applied, and applied equally, to the relevant National Board (at first instance) and, in an appeal, to the appropriate responsible tribunal. However, at almost the last moment of the final hearing, the Board seemed to depart from this position and to submit, instead, that s 156(1)(a) imposes on the appellate tribunal requirements that differ from those it imposes on the relevant National Board. See further below.

[152] Herzfeld and Prince (n 143) [5.340] and cases there cited.

[154] See, generally, the Board's outline at [1]-[3] and see also the Board's notice of appeal under 'question of law' and under 'the ground relied upon'.

[156] 'When the basis of the immediate action is the practitioner's conduct, as opposed to their performance or health': Board's outline, n 1.

[157] Board's outline of submissions in reply dated 1 December 2021 ('Board's written reply').

[161] See especially at T 17-18, 33-36, 50, 60, 96-97.

[167] See [74] above and the cases there cited.

[168] [2013] WASCA 259.

[173] See, eg, Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701 (Horneman-Wren J), [20]; Ellis [85]-[92].

[179] See Minister for Immigration v Rajalingam [1999] FCA 719; (1999) 93 FCR 220, esp at 239-241 [60]-[67] (Sackville J, with whom North J agreed) and at 253-255 [131]-[140] (Kenny J).

[180] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, 622-623.

[181] Sami v Medical Board of Australia [2021] VCAT 447, [99]. See above.

[183] T 35-44. See also the similar discussion with junior counsel for the Board in oral reply: T 97-98.

[187] Junior counsel for the Board later repeated this argument: T 98-99.

[189] Dr Sami's outline [40]-[48], especially at [47]-[48]. And see above [87].

[190] See Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179, [25] (Crennan, Bell, Gageler and Keane JJ) as cited in Glass v President of the Legislative Council [2016] VSC 507, [196] and as affirmed in Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 395 ALR 209, [86] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ). See also R v Seller [2013] NSWCCA 42; (2013) 273 FLR 155, [100] applied in Simon v Condran [2013] NSWCA 388; (2013) 85 NSWLR 768, [26] for the proposition that an amendment may change the meaning of the remaining provisions of an Act; and, for this proposition, see also Pearce (n 146) [7.26].

[191] I acknowledge that s 10 of Schedule 7 to the National Law, which applies by virtue of s 6 of the National Law, provides that an example is not exhaustive and that the example does not limit, but may extend, the meaning of the provision.

[194] Section 151 is described in more detail by Newnes JA in Bernadt [2013] WASCA 259, [134]. See also and compare the express options to take 'no further action' provided for in s 167 (procedure after investigation) and s 177 (dealing with an assessor's report), both referred to by Murphy JA in Bernadt [2013] WASCA 259, [296].

[196] See especially at [104] above.

[197] Board's outline [28] citing National Law, s 3.

[198] See Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138, [5].

[213] See National Law Part 8, Division 13. In Victoria ss 97 and 98(1)(a) of the VCAT Act are generally directed to ensuring procedural fairness.

[214] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, [19] (Gleeson CJ and Crennan J); Slater Walker Superannuation Pty Ltd v Great Boulder Gold Mines Ltd [1979] VicRp 13; [1979] VR 107, 110; Bradto Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65, [33]-[35].

[215] Kozanoglu, see paragraph [4] above and n 4 generally.

[216] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, 622-623.

[217] [2013] WASCA 259.

[218] The judicial decisions referred to by the Board in this regard are Al Raheb v Medical Board of Australia [2017] VSC 494; and Nitschke v Medical Board of Australia (No 1) [2015] NTSC 39, [23]-[46]. As to the tribunals, see Board's outline [23].

[219] Thus, in Vo v Medical Board of Australia [2020] VCAT 1072 at [58], VCAT said: 'The question is whether we hold a "reasonable belief" that conduct occurred'. In my respectful opinion, if that statement in Vo is meant to be of general application, it is wrong.

[220] See Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); compare Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553, 560 [27] (Black CJ, Hill, Sundberg, Marshall and Kenny JJ).

[221] [1998] HCA 48; (1998) 194 CLR 395, [56] (Kirby J) (citations omitted) approved or followed in Idya Pty Ltd v Anastasiou [2008] NSWCA 102, [30] (Beazley JA, Mason P agreeing); Nationwide News Pty Ltd v Rush [2020] FCAFC 115, [507] (White, Gleeson and Wheelahan JJ).

[222] Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395, [58]-[59] (citations omitted).

[223] Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).

[224] As to those principles, see Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2003] FCA 1263; (2003) 133 FCR 190, [52] (French J).

[225] Ogden Industries Pty Ltd v Lucas [1968] UKPCHCA 1; (1968) 118 CLR 32, 38.

[227] See Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555, 572-273 (Gummow J). See also Pearce (n 146) [1.9]-[1.10] and cases there referred to.

[228] Bernadt [2]-[9] (McLure P); [85]-[88] (Newnes JA).

[229] Health Practitioner Regulation National Law (WA) Act 2010 (WA) s 4. The Western Australian legislation applies the National Law as its own schedule, whereas the Victorian legislation applies the National Law as in force from time to time as a schedule to the Queensland legislation: cf Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 4.

[230] Bernadt [10] (McLure P); [90]-[93] (Newnes JA).

[231] State Administrative Tribunal Act 2004 (WA) s 27.

[232] Bernadt [11] (McLure P); [95], [98] (Newnes JA).

[233] Bernadt [95], [98] (Newnes JA).

[234] See and compare Bernadt [12] (McLure P); [119] (Newnes JA).

[235] State Administrative Tribunal Act 2004 (WA) ss 105(13)-(14), Sch 1. Compare VCAT Act s 148.

[237] See ibid [1] (McLure P) and [210] (Murphy JA).

[238] Ibid [170]-[206] (Newnes JA) with whom McLure P ([1]) and Murphy JA ([210]) agreed in this regard.

[244] Ibid [62]-[66]. Board's emphasis in Board's outline [18].

[245] Bernadt [48], [60]-[61].

[251] See also, eg, Hocking v Medical Board of Australia [2014] ACTSC 48, [171]; Gertsman v Medical Board of Australia [2020] VCAT 1367, [70].

[254] (2021) 248 LGERA 142, [109].

[255] [2006] HCA 25; (2006) 227 CLR 532, [176].

[256] Quoting R v Brown [1996] AC 543, 561 (Lord Hoffman, Lord Brown-Wilkinson concurring), approved in Collector of Customs v Agra-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 396-397 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ).

[257] [1967] 1 WLR 691, 696.

[260] Bernadt [66] citing George v Rockett [1990] HCA 26; (1990) 170 CLR 104.

[261] [2013] QCAT 614. See the passage that was cited in VCAT's reasons below, as reproduced in [54] above.

[265] [1990] HCA 26; (1990) 170 CLR 104.

[266] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 116.

[269] Ibid [150]-[155] (Newnes JA).

[271] Ibid [79] (McLure P); [157]-[163] (Newnes JA); [299] (Murphy JA)

[272] Ibid [62] (McLure P); [151] (Newnes JA); [298] (Murphy JA).

[273] Health Practitioner Regulation National Law (Victoria) Amendment Act 2011 (Vic) s 3.

[274] See, eg, Gertsman v Medical Board of Australia [2020] VCAT 1367, [86].

[275] [2016] ACAT 97, [22].

[276] [2021] ACAT 97, [14].