• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Texts/Papers cited: Perry Herzfeld and Thomas Prince, Interpretation (Lawbook, rd 3 ed, 2024)

Tribunal: Senior Member M Hyman Date of Orders: 29 June 2026 Date of Reasons for Decision: 29 June 2026 Date of Publication: 10 July 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 17/2025

BETWEEN: MICHAEL FALK Applicant AND: CEO OF CANBERRA HEALTH SERVICES Respondent

TRIBUNAL: Senior Member M Hyman DATE: 29 June 2026

ORDER The Tribunal orders that:

1. The respondent’s application for interim orders, dated 10 April 2026, is dismissed.

2. The directions hearing listed for Friday 14 August 2026 is vacated.

3. A directions hearing is listed at 2:00 pm on Tuesday 14 July 2026.

……………………………….. Senior Member M Hyman REASONS FOR DECISION

Introduction

1. The applicant, Dr Michael Falk, (identified by name or as the applicant) is a medical specialist at The Canberra Hospital. On 9 April 2022 the then CEO of Canberra Health Services (CHS), Mr Dave Peffer (the CEO), took an emergency decision under section 69 of the Health Act 1993 (the Health Act) to limit significantly the scope of Dr Falk’s scope of clinical practice. As he was obliged to do under section 69(5) of the Health Act, Mr Peffer referred the matter, on 13 May 2022, to a scope of clinical practice committee, in this instance the Medical and Dental Appointments Advisory Committee (MDAAC). The MDAAC conducted a review and delivered a report to the CEO on 5 June 2025. On 16 June 2025 the CEO took a decision that the applicant’s scope of clinical practice should be narrowed. On 14 July 2025 Dr Falk applied to this Tribunal for review of the CEO’s decision.

2. On 28 July 2025 the respondent lodged an application for interim orders seeking dismissal of the application for want of jurisdiction. Section 130 of the Health Act provides that review can only be sought for decisions under section 69, which deals with interim or emergency decisions, whereas the application related to the decision of the CEO made under section 70, which deals with decisions made in response to submission of a report by a scope of clinical practice committee. The Tribunal held a hearing on the application for interim orders, and in a written decision concluded that the reference in section 130 to section 69 of the Health 1 Act was in error, and should rather have been a reference to section 70.

3. On 26 November 2025 the respondent filed the Tribunal documents (the T-documents), being the respondent’s records relating to the matter, and on 28 November 2025 a statement of reasons made by Ms Janet Zagari, the CEO of Canberra Health Services (Ms Zagari succeeded Mr Peffer in that role). On 16 December 2025 the Tribunal made orders to prepare the matter for hearing, listing it for 14 and 15 May 2026. Subsequently, the applicant filed relevant documents, including a witness statement by the applicant, expert evidence from

1 Falk v Canberra Health Services [2025] ACAT 77 two expert witnesses on behalf of the applicant and submissions. On 10 April 2026 the respondent applied for interim orders seeking directions that certain documents, including the MDAAC report, not be admitted as evidence, under section 75 of the Health Act, and for orders seeking to limit the scope of the Tribunal’s review. The listing for 14–15 May 2026 was vacated and the application for interim orders was heard on 15 May 2026. This decision rules on the application for interim orders and provides reasons for that ruling.

4. The two issues on which the ruling is sought are first, whether the scope of the Tribunal’s review extends to the MDAAC’s processes and functions in any respect, or is limited to the decision of Mr Peffer of 16 June 2025 and the statement of reasons of Ms Zagari of 28 November 2025; and second, whether documents as specified in section 75 of the Health Act, otherwise to be admitted as evidence, should be excluded from these proceedings. The hearing proceeded by way of written and oral submissions by the parties. The respondent’s written submissions were filed on 30 April 2026 and the applicant’s written submissions on 14 May 2026.

The Health Act

5. The Health Act provides for maintenance of standards of care at health facilities in the ACT, health facilities being defined as hospitals, hospices, nursing homes 2 and similar facilities, including doctors’ consulting rooms. The focus of the Health Act for present purposes is on two areas: quality assurance and scope of clinical practice. The first, in Part 4, deals with the ongoing performance of areas of activity and of parts or all of a facility or organisation; the second, in Part 5, with the performance of individual practitioners. Each of these two areas is addressed through specialised committees which can gather information, undertake reviews and submit reports.

6. The scope of clinical practice of a practitioner at a facility is the rights agreed between the practitioner and the facility for the practitioner to treat patients and 3 undertake procedures at the facility, and to use the facility and its equipment.

2 Health Act, s 6 3 Health Act, s 54 The functions of a scope of clinical practice committee include credentialling a practitioner and determining the terms of the practitioner’s credentials at the facility, reviewing a practitioner’s scope of clinical practice, including in response to a referral by the CEO, and withdrawing or amending a practitioner’s 4 scope of clinical practice.

7. A scope of clinical practice committee must comply with the rules of natural 5 justice, is not bound by the rules of evidence, and can inform itself as it sees fit. A scope of clinical practice committee can ask a person for information; it is an 6 offence to give false or misleading information to the committee. If the committee is reviewing a practitioner’s scope of clinical practice and is proposing to recommend that it be amended or withdrawn, or the terms of engagement be amended, or the engagement be suspended or terminated, the committee must 7 inform the practitioner and invite submissions.

8. If a committee forms the view that a practitioner’s clinical practice is putting members of the public at risk, it may immediately withdraw or amend the 8 practitioner’s scope of clinical practice. When a committee has completed a review of a practitioner’s scope of clinical practice, including, where relevant, inviting and considering a submission from the practitioner under review in accordance with section 65, it must prepare a report of the review, which must include recommendations on the practitioner’s scope of clinical practice and 9 terms of engagement. The report must be given to the CEO of the facility and 10 the practitioner.

9. The CEO of a health facility, where holding serious concerns about a practitioner, may make an interim or emergency decision to amend or withdraw the practitioner’s scope of clinical practice, with immediate effect. If the practitioner is not already under review by a scope of clinical practice committee, the CEO

4 Health Act, s 59 5 Health Act, s 62 6 Health Act, s 64 7 Health Act, s 65 8 Health Act, s 66 9 Health Act, s 67 10 Health Act, s 68 11 must refer the practitioner to such a committee. The CEO, on receiving a scope of clinical practice report, must take a decision either accepting the report’s recommendations, or adopting alternative recommendations that would have 12 been open to the committee.

10. Section 75 of the Heath Act prohibits evidence put to a scope of clinical practice committee, and reports of such committees, being admitted as evidence before a court or tribunal. It reads as follows: 75 Scope of clinical practice committees—admissibility of evidence (1) The following are not admissible as evidence in a proceeding before a court: (a) an oral statement made in a proceeding before a scope of clinical practice committee; (b) a document given to a scope of clinical practice committee, but only to the extent that it was prepared only for the committee; (c) a document prepared by a scope of clinical practice committee. (2) In this section: court includes a tribunal, authority or person with power to require the production of documents or the answering of questions.

11. Decisions under section 70 of the Health Act to change the scope of clinical practice or terms of engagement of a practitioner are reviewable by the ACT Civil 13 and Administrative Tribunal (ACAT).

12. The Health Act contains several provisions focused on creating the opportunity for departures from good medical practice to be brought to the attention of the supervisory authorities, protecting information submitted with that intention, and protecting the identity of those making such reports. The critical provisions are in Part 8. An “information holder” is defined as a person who is or has been a member of either a quality assurance committee or a scope of clinical practice committee, or someone performing functions under Part 4 or Part 5, or involved in administration of those Parts, or someone to whom information has been given

11 Health Act, s 69 12 Health Act, s 70 13 Health Act, s 130; the text of s 130 refers to review of decisions under s 69 rather than s 70 of the Health Act; the decision in Falk v Canberra Health Services [2025] ACAT 77 has the effect that it is decisions under s 70 that are reviewable rather than those under s 69 (that is, the reference to s 69 rather than s 70 is treated as a typographical error) 14 under the Act by such a person. Protected information is information about a person given to or obtained by an information holder in the exercise of functions 15 under the Act; and sensitive information is information that identifies, or allows the identification of, a patient, or a practitioner, or someone who has given information to a quality assurance committee or scope of clinical practice 16 committee under the Act. Section 125 then creates an offence related to protected information, as follows: 125 Offence—secrecy of protected information (1) An information holder commits an offence if— (a) the information holder— (i) makes a record of protected information about someone else; and (ii) is reckless about whether the information is protected information about someone else; or (b) the information holder— (i) does something that divulges protected information about someone else; and (ii) is reckless about whether— (A) the information is protected information about someone else; and (B) doing the thing would result in the information being divulged to another person. Maximum penalty: 50 penalty units, imprisonment for 6 months or both. (2) This section does not apply to the making of a record or the divulging of information if the record is made or the information divulged— (a) under this Act; or (b) in the exercise of a function, as an information holder, under this Act. (3) This section does not apply to the making of a record or the divulging of information if— (a) the protected information is not sensitive information; and (b) the record is made or the information divulged— (i) under another territory law; or

14 Health Act, s 122 15 Health Act, s 123 16 Health Act, s 124 (ii) in the exercise of a function, as an information holder, under another territory law. (4) This section does not apply to the divulging of protected information about someone with the person’s agreement. (5) An information holder must not divulge protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act. Note A quality assurance committee may give protected information to the Coroner’s Court (see s 43). (6) In this section: court includes a tribunal, authority or person with power to require the production of documents or the answering of questions. produce includes allow access to.

13. Other provisions supplement section 125: section 75, quoted above, protects evidence given to and reports made by scope of clinical practice committees from being admitted to court and tribunal proceedings, and an effectively identical 17 provision applies to quality assurance committees. A person who is or has been a member of a quality assurance or scope of clinical practice committee, or people acting under that person’s direction, are protected from personal liability in exercising their functions under the Act, provided they act honestly and without 18 recklessness in so doing. If a person gives information to either kind of committee, it is not a breach of confidence, professional etiquette or ethics, or of a rule of professional conduct, nor do they incur civil or criminal liability, provided, in each case, that they give the information honestly and without 19 recklessness. If a person makes a complaint about a practitioner, and the matter is referred to a scope of clinical practice committee, the committee must not disclose the identity of the complainant to the practitioner or to anyone outside 20 the committee.

The application for interim orders

14. The respondent’s application, dated 10 April 2026, has two main limbs: first, it seeks to have evidence covered by section 75 of the Health Act excluded from

17 Health Act, s 47 18 Health Act, ss 34, 63 19 Health Act, ss 35, 64 20 Health Act, s 78 the review proceedings undertaken by the Tribunal; and second, it seeks orders ensuring that the review’s scope is limited to the decision of the CEO under section 70 of the Health Act, and does not extend to a review of the MDAAC and its functions.

15. The orders sought by the respondent are first, that the scope of the review be limited to the CEO’s decision, as reflected in the Notice of Decision dated 16 June 2025 and the Statement of Reasons dated 28 November 2025; second that the scope does not extend to the functions of the MDAAC; third, that specified documents already filed in the proceedings, falling within section 75 of the Health Act, be excluded as inadmissible; fourth, that other documents, prepared in reliance on documents that should now be excluded, should also be inadmissible because they are infected by the inadmissible documents, including the applicant’s witness statements and two expert reports; and fifth that the applicant’s submissions (dated 18 March 2026) be excluded for the same 21 reason. The remaining orders sought are to establish new timelines to allow both parties to lodge new evidence and submissions taking into account the above exclusions.

The positions of the parties

16. The respondent contends that the text of section 75 of the Health Act is clear and its application equally so. The effect of it is that the MDAAC report, all submissions put to the MDAAC and prepared solely for that purpose, and all oral evidence to the MDAAC are excluded from the Tribunal’s review. Documents prepared relying on the excluded evidence, such as the applicant’s witness statement, those of his experts, and the applicant’s submissions, are also excluded because those documents are fatally infected with the excluded material. This means that the respondent is able to take strategic decisions about what evidence to put on in the Tribunal’s proceedings, and that evidence in this instance will include material to the same effect as the MDAAC report, but will necessarily

21 The five orders sought are phrased in the application as “declarations”; at the hearing it was agreed between the parties that it was orders or procedural directions by the Tribunal that were sought, rather than declarations made in the exercise of equitable jurisdiction exclude the report itself. This is important in the context of workplace 22 sensitivities.

17. The decision under review is the only decision that, in this context, can be reviewed under section 130 of the Health Act, namely a decision of the CEO under section 70 of that Act. Section 70(2) requires the CEO to consider the recommendations in the report of a scope of clinical practice committee’s report (here the MDAAC’s report) and either to accept the recommendation or to adopt an alternative that was available to the committee. There is no requirement for the CEO to make any closer engagement with the MDAAC report than that decision-making process entails and no reason whatsoever to disclose the MDAAC report. Section 68(2) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides that the Tribunal “may exercise any function given by an Act” to the primary decision-maker; the use of the discretionary “may” clarifies that there is no mandatory obligation of the Tribunal to exercise 23 any particular function under the Health Act (except for considering the recommendations and the making of a new decision confirming, varying or 24 setting aside the decision under review). The Tribunal’s responsibility, then, is to consider the recommendation made by the MDAAC to the CEO — as set out in Ms Zagari’s statement of reasons — and either accept that recommendation or settle on an alternative that fell within the Committee’s mandate. The Health Act provides no basis for the Tribunal to engage with the MDAAC’s processes or the 25 way in which it arrived at the recommendations. 26

18. Well known authorities (Project Blue Sky v ABA and Commissioner for 27 Railways (NSW) v Agalianos) accepted as guides to statutory construction emphasise the need to interpret statutory texts in context. Looking at sections 70 and 75 of the Health Act together, there is no conflict or ambiguity between them,

22 Respondent’s written submissions dated 30 April 2026, at [5]-[10]; transcript of proceedings, 15 May 2026, pages 9-13 23 Legislation Act 2001, s 146 24 ACAT Act, s 68(3) 25 Respondent’s written submissions dated 30 April 2026, at [14]-[16]; transcript of proceedings, 15 May 2026, pages 13-16 26 [1998] HCA 28 27 [1955] HCA 27 and nothing to drive the process of statutory construction aimed at teasing out difficult provisions. The effect of the two provisions taken together is 28 straightforward and harmonious.

19. Sections 11, 53 and 56 of the ACAT Act provide the Tribunal with ample power to make the orders sought. Section 27 of that Act provides that an authorising law may set out procedures to be followed in an application made under the authorising law, and where there is any conflict between those procedures in the authorising law and the ACAT Act, the authorising law prevails. It follows that the procedure mandated by section 75 has the effect of excluding the identified documents from the Tribunal’s proceedings, despite anything in the ACAT Act 29 that might appear to point in the other direction.

20. The applicant’s written submission contests the position taken by the respondent. On its proper construction (relying on SZTAL v Minister for Immigration and 30 31 Border Protection, CIC Insurance Ltd v Bankstown Football Club Ltd and 32 Minister for Immigration and Citizenship v SZJGV), section 75 of the Health Act cannot be understood as applying to the Tribunal’s administrative review function under section 130 of the Health Act. And, applying the same principles of statutory construction, the Health Act’s requirement for the Tribunal to review the recommendation of the MDAAC requires that the Tribunal examine also the processes and reasoning of the MDAAC so as to reach a conclusion on the merits of its recommendation. The applicant cited Negri v Secretary, 33 34 Department of Social Services and ELM21 v Minister for Home Affairs in 35 support of these arguments.

28 Respondent’s written submissions dated 30 April 2026, at [13]-[19]; transcript of proceedings, 15 May 2026, pages 13-16, pages 37-44 29 Respondent’s written submissions dated 30 April 2026, at [8]-[9], [18]; transcript of proceedings, 15 May 2026, page 6, lines 26-34 30 [2017] HCA 34 31 [1997] HCA 2 32 [2009] HCA 40 33 [2016] FCA 879 34 [2021] FCA 1604 35 Applicant’s written submissions, 14 May 2026, at [32]-[56]

21. In oral submissions at the hearing, the applicant supplemented the above arguments by reference to the High Court’s decision in Frugtniet v Australian 36 Securities and Investments Commission (Frugtniet). In that case the High Court held unanimously that an instruction in the Crimes Act 1914 (Cth) (the Crimes Act) that courts and tribunals could take into account particular evidence denied to the primary decision-maker (in the case of Frugtniet, the Australian Securities and Investments Commission (ASIC)) did not apply to the Commonwealth tribunal (the Administrative Appeals Tribunal (AAT)) when it was undertaking administrative review of a decision taken by ASIC. The applicant submitted that the circumstances in Frugtniet correspond closely to the present matter and 37 should settle the evidentiary issue before the Tribunal.

22. In reply to the applicant’s submissions, the respondent contended that the present matter should be distinguished from Frugtniet: the statutory context is different, there is no conflict or ambiguity in the Health Act requiring resolution, the application of section 75 to the Tribunal’s proceedings is straightforward, and where the instruction in Frugtniet would, if it applied, have broadened the scope of the AAT on review, here it narrows it. The conclusion in Frugtniet cannot be transferred to the present matter. Indeed, it appears that the purpose of section 75 of the Health Act is to modify the Tribunal’s processes, as provided for in section 27 of the ACAT Act; without the application of section 75 to the Tribunal’s 38 administrative review functions, the section would have no work to do.

23. With respect to the applicant’s contention that the scope of the Tribunal’s review extended to the MDAAC’s processes, the respondent submitted that it is clear that section 70(2) of the Health Act obliges the CEO to consider the recommendations of the MDAAC report but does not refer to the report itself; it follows that it is the recommendations made by the MDAAC that are the focus of the Tribunal’s review functions, not how the MDAAC arrived at those recommendations. The applicant has put too much weight on the heading to section 70 of the Health Act, which refers to the report of the scope of clinical practice committee; but the text

36 [2019] HCA 16 37 Transcript of proceedings, 15 May 2026, pages 28-31 38 Transcript of proceedings, 15 May 2026, pages 37-44, 56-7 of the section requires that the CEO consider only the recommendations. The 39 High Court in Concrete Constructions (NSW) Pty Ltd v Nelson and Herzfeld 40 and Prince in “Interpretation” warn against placing undue weight on headings 41 when not supported by the operative text.

24. The applicant advanced an argument, to be considered should the application of Frugtniet be rejected, about the MDAAC report and the other documents to be found in the T-documents, which would be excluded from the Tribunal’s consideration should I accept the respondent’s argument regarding section 75. The applicant proposed that these documents were not evidence so as to be inadmissible under section 75, but were more properly regarded as part of the administrative record. This line of argument was strongly opposed by the 42 respondent.

Consideration

25. The disagreement between the parties for the purposes of this decision is limited to two issues: first, the proper application of section 75 of the Health Act to the Tribunal’s administrative review process, and second, the scope of the review to be undertaken by the Tribunal. Resolution of those issues requires exploration of the interaction between the Health Act and the ACAT Act.

Administrative review

26. The work of administrative tribunals in undertaking merits review of decisions is well established and has been the subject of extensive elaboration by the courts, especially, but not only, in the early years of the AAT.

27. In an early and influential case, Drake v Minister for Immigration and Ethnic 43 Affairs, (Drake) the Full Court of the Federal Court noted that the task before the AAT was different from that of a court engaged in judicial review of a decision:

39 [1990] HCA 17 40 rd Perry Herzfeld and Thomas Prince, Interpretation (Lawbook, 3 ed, 2024) at [5.120] 41 Transcript of proceedings, 15 May 2026, pages 37-55 42 Transcript of proceedings, 15 May 2026, pages 32-4, 55-6 43 (1979) 46 FLR 409, 419 (Bowen CJ, Deane J) it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has lawfully been made in pursuance of a permissible policy, to adjudicate on the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal. In its proceedings, [the Tribunal] is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists … 44

28. In Shi v Migration Agents Registration Authority (Shi) Kiefel J gave what is, with respect, an especially clear and comprehensive account of administrative 45 review, covering many points relevant to the present matter: the Tribunal may exercise all of the powers and discretions conferred upon the original decision-maker. The Tribunal has been said to stand in the shoes of the original decision-maker, for the purpose of its review. In Minister for Immigration and Ethnic Affairs v Pochi [(1980) 31 ALR 666] Smithers J said that, in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person. In Liedig v Commissioner of Taxation [(1994) 50 FCR 461], Hill J adopted, as applicable to the Tribunal, what Kitto J said of the Taxation Board of Review in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [[1963] HCA 41], namely that its function is "merely to do over again ... what the Commissioner did in making the assessment", within the limits of the taxpayer's objection. … The term "merits review" does not appear in the AAT Act, although it is often used to explain that the function of the Tribunal extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the Tribunal has been said to be to determine what is the "correct or preferable decision". "Preferable" is apt to refer to a decision which involves discretionary considerations. A "correct" decision, in the context of review, might be taken to be one rightly made, in the proper sense. It is, inevitably, a decision by the original decision-maker with which the Tribunal agrees. Smithers J, in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [(1979) 24 ALR 307], said that it is for the Tribunal to determine whether the decision is acceptable, when tested against the requirements of

44 [2008] HCA 31 45 Shi, at [134], [140]-[142] (Kiefel J); the reference to “s 43(1)” is to that section in the Administrative Appeals Tribunal Act 1975 (Cth); that Act has subsequently been repealed and replaced by the Administrative Review Tribunal Act 2024 good government. This is because the Tribunal, in essence, is an instrument of government administration. The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs [(1979) 24 ALR 577] confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed. To the contrary of the argument put by the respondent on this appeal, that the Tribunal's exercise of power is dependent upon the existence of error in the original decision, Smithers J denied that the Tribunal was limited to something of a supervisory role. As his Honour said, the Tribunal is authorised and required to review the actual decision, not the reasons for it. In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision.

29. The High Court’s decision in Frugtniet is a significant addition to the existing body of case law on administrative review. The case is put forward by the applicant as a complete answer to the evidentiary issues before the Tribunal in this matter. The respondent submits that the present matter should be distinguished, and that the case has no application to the present proceedings.

30. In Frugtniet, Kiefel CJ, Keane and Nettle JJ (the first plurality) and Bell, Gageler, Gordon and Edelman JJ (the second plurality) handed down separate decisions arriving at the same outcome by similar reasoning. The decision made by ASIC under the National Consumer Credit Protection Act 2009 (Cth) (the NCCP Act) came under review by the AAT. Under section 80(1)(f) of the NCCP Act, ASIC could make a banning order if of the view that a person was not a fit and proper person to engage in credit activities. Section 80(2) provided that ASIC must have regard to any criminal convictions of the person within the previous ten years (among other matters). This requirement was subject to Part VIIC of the Crimes Act.

31. Part VIIC of the Crimes Act provided that under certain conditions (such as after a waiting period of ten years) a conviction was spent (section 85ZM); and sections 85ZV and 85ZW had the effect that decision-makers such as ASIC were prohibited from taking spent convictions into account. Section 85ZZH(c) then exempted courts and tribunals, established under Commonwealth, State or Territory law, from that prohibition, for the purpose of making a decision.

32. A delegate of ASIC took a decision banning Mr Frugtniet from credit activities, ignoring his spent convictions, in accordance with section 80 of the NCCP Act. Mr Frugtniet sought review in the AAT, which, applying section 85ZZH(c) of the Crimes Act, took into account his spent convictions. On appeal to the Federal Court, the Tribunal’s decision was upheld, and the same result followed from an appeal to the Full Court of the Federal Court.

33. On further appeal, the High Court rejected the approach adopted by the AAT, the Federal Court, and the Full Court of the Federal Court; when reviewing the decision taken by ASIC, the AAT was prohibited from taking into account spent convictions, despite section 85ZZH(c) of the Crimes Act. The AAT was obliged to abide by the same constraints as ASIC, the primary decision-maker. For both pluralities the decisive factor was a strong reluctance to compromise the integrity of the administrative review process.

34. All the above jurisprudence is directed to administrative review by the AAT, under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). It is accepted, however, including by the parties, that the close similarity between the relevant provisions of the AAT Act and the ACAT Act (section 43 of the former and sections 68 and 69 of the latter) means that the case law on merits review deriving from the AAT applies equally to the ACAT in its administrative review jurisdiction (absent legislative direction otherwise). The applicant cited Jolley v 46 Construction Occupations Registrar in support of this proposition, but the position does not seem to be contested.

The Health Act

35. The Health Act contains several elements: the primary purpose appears to be the maintenance of the standards of health care and practices in Canberra’s health facilities; other elements relate to employment and the operation of health facilities as workplaces. Parts 4 and 5 of the Act are focused on quality assurance

46 [2025] ACTSC 55 and scope of clinical practice; Part 6 is about abortions and Part 7 about visiting medical officers (VMOs) and, in particular, collective negotiations with VMOs.

36. In Parts 4 and 5 a major thread is to allow information to come forward in confidence to identify problems and failures to meet standards; those problems and failures can then be acted on. This is reflected not only in Part 8 (Secrecy) but in many other individual provisions. Section 75, in my view, is best understood as one of those provisions. Its focus is on protecting the confidentiality of processes, information and those who come forward with information.

Does section 75 of the Health Act lead to the exclusion of the listed documents?

37. One thing that is clear is that the respondent’s assertion that section 75 is 47 specifically aimed at tribunal review does not stand up to examination. Section 75 applies to information given to scope of clinical practice committees, and to their reports. But section 47 is a provision in virtually identical terms imposing the same constraints on quality assurance committees, yet nothing those committees do is subject to ACAT review, or leads to decisions subject to ACAT review. It is plain that the constraint imposed in both sections is intended to have general application (it is worth recalling that the ACAT is a tribunal of broad jurisdiction, dealing with varied matters such as civil disputes (including, for example, defamation) and discrimination (on referral from the Human Rights Commission)).

38. The respondent’s argument that the application of section 75 is straightforward and that there is no contradiction to be resolved is, as I understand it, intended to discourage any attempt to construe section 75 so as to exclude ACAT review from its operation. It is certainly the case that section 75 is put in the plainest terms, and no ambiguity is apparent that would encourage the processes of statutory construction that might be followed where the meaning of a provision is unclear. But that is true equally of section 85ZZH(c) of the Crimes Act, and that section was not the focus of the High Court in Frugtniet. What the High Court took as its starting point was section 43 of the AAT Act and the function that section

47 Transcript of proceedings, 15 May 2026, page 56, lines 24-30 conferred on the AAT; and equally, here, the point of departure is sections 68 and 69 of the ACAT Act.

39. Those sections read as follows: 68 Review of decisions (1) This section applies if the tribunal reviews a decision by an entity. (2) The tribunal may exercise any function given by an Act to the entity for making the decision. Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104). (3) The tribunal must, by order— (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and— (i) make a substitute decision; or (ii) remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal. 69 Effect of orders for administrative review (1) This section applies if the tribunal makes an order under section 68 (3) in relation to a decision. (2) The order— (a) is taken to be the decision of the decision-maker; and (b) takes effect from the day the tribunal makes the order, unless the tribunal orders otherwise.

40. In Frugtniet, both pluralities took the view that the straightforward application of the instruction in the Crimes Act did injury to the essential nature of the administrative review process. The first plurality also noted that courts had been misled into applying the Crimes Act instruction — including both the Federal Court and the Full Court of the Federal Court. The latter followed a dissenting judgment by White J in a NSW Court of Appeal case, Kocic v Commissioner of 48 Police, NSW Police Force (Kocic). That case was highly relevant to Frugtniet because of its factual similarities. It concerned an example where a disciplinary action with respect to firearm possession engaged a provision of the Criminal

48 [2014] NSWCA 368 49 Records Act 1991 (NSW) (CRA) couched in similar terms to section 85ZZH(c) of the Crimes Act. Basten JA, with whom Lemming JA agreed, held that the instruction in the CRA should not apply to merits review by the (then) Administrative Decisions Tribunal of NSW. White J dissented, and the Full Court of the Federal Court preferred his reasoning to that of Basten JA. The reasons of Basten JA included a statement that section 16 of the CRA should not be regarded as having changed the ground rules for merits review “as it were by a side-wind” 50 in the absence of a clear legislative intention to do so. The first plurality in Frugtniet adopted that phrase, concluding that “it is not to be supposed that Parliament intended to make such a profound change to the nature of merits 51 review by a legislative side-wind”.

41. The respondent has attempted to distinguish the present matter from Frugtniet in two ways. First, the Crimes Act is a separate piece of legislation, of general application, entirely apart from the legislation creating the right to seek review of ASIC’s decision, whereas in the present matter the instruction to narrow the evidentiary scope is in the same statute as the review provision. The link between the instruction and the review right is therefore both more immediate and more pointed. The second distinction advanced by the respondent is that in Frugtniet the instruction in the Crimes Act broadened the scope of the evidence that would have been available to the AAT on review, whereas in the present matter the instruction in section 75 would narrow the evidence available to the Tribunal. It is not clear, the respondent submits, that the reasoning in Frugtniet applies.

42. Neither of these arguments withstands close examination. The first is a variation on the argument raised earlier, that the intention behind section 75 of the Health Act is specifically to limit the scope of the evidence available to this Tribunal in reviewing decisions made under section 70. But, as noted above, the essentially identical wording of section 47, applying to quality assurance committees, where no Tribunal review right exists, contradicts that assumed intention. On the other hand, it is plain that section 75 of the Health Act cannot easily be characterised

49 CRA, s 16 50 Kocic, at [76] (Basten JA) 51 Frugtniet, at [32] (Kiefel CJ, Keane and Nettle JJ) as a “legislative side-wind” of the kind referred to by both Basten JA in Kocic and the first plurality in Frugtniet. By “side-wind” I understand their Honours to be intending to identify the interaction between the statute under which the reviewable decision was taken, on the one hand, and the provision in some other statute of general application on the other — the CRA in Kocic and the Crimes Act in Frugtniet. By comparison, section 75 of the Health Act looks more like a headwind. Nevertheless, it is clear from Frugtniet that the usual operation of merits review is only displaced where there is a clear legislative intention to 52 53 do so. The first plurality put it this way: the notion of an administrative review tribunal undertaking merits review of an administrative decision by reference to different considerations from those which the original decision-maker is required to take into account or prohibited from taking into account, and so exercising a different function from the administrative decision-maker, is such a substantial departure from established conceptions of administrative decision merits review that it would require a clearly expressed legislative intent to achieve that result.

43. Section 75 falls well short of this test, not only, but in particular, because of the parallel with section 47.

44. The second argument – that a critical point of difference derives from whether the instruction to the Tribunal imposes a constraint (as in the Health Act) or allows a wider evidentiary scope (as in the Crimes Act) – is contradicted by the reasoning 54 in Frugtniet, especially as put by the second plurality: the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in 52 Frugtniet, at [31] (Kiefel CJ, Keane and Nettle JJ); at [51] (Bell, Gageler, Gordon and Edelman JJ 53 Frugtniet, at [31] (Kiefel CJ, Keane and Nettle JJ) 54 Frugtniet, at [51] (Bell, Gageler, Gordon and Edelman JJ the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.

45. This passage clearly illustrates the identity of the Tribunal’s task, on review, with that of the primary decision-maker. And its final two sentences make it clear that that identity operates equally whether some extraneous instruction (such as that in section 75 of the Health Act) might appear to have the effect of narrowing or of expanding the evidentiary scope of the Tribunal’s review.

46. It is part of the respondent’s case that there would be in fact no significant difference between the evidence before the CEO at first instance and that before the Tribunal on review, if the instruction is given effect — and that there is therefore no reason to contest the instruction’s application. The respondent will bring forward evidence from expert witnesses to replace the MDAAC report and any evidence submitted to it. But that quite plainly misses the High Court’s point: any material that was before the CEO when the decision under review was taken., and meets the usual tests, critically that of relevance, must also be before the Tribunal. Any attempt to replace that evidence will unavoidably be affected by differences, however slight; and the Tribunal, being denied access to the MDAAC report and any other material affected by the instruction, will not even be aware of what the differences might be. And there is an inescapable absurdity in the concept of the respondent busily assembling evidence to replace the MDAAC report and seeking to make that evidence as close as possible to the evidence that has been excluded: in those circumstances, what is to be understood as the purpose of section 75?

47. A further consideration raised by the second plurality relates to the result of a remittal by the Tribunal to the original decision-maker, which is one of the options 55 under section 68 of the ACAT Act (and section 43 of the AAT Act). If, supposing the application of section 75 were accepted, the Tribunal were to remit the matter to the respondent for further consideration with the Tribunal’s recommendations or directions, would that further consideration be able to draw on the MDAAC

55 Frugtniet, at [52] (Bell, Gageler, Gordon and Edelman JJ) report, which was denied to the Tribunal in reaching its decision? The second plurality in Frugtniet simply pointed to this absurdity, as reinforcement for the conclusion that the Crimes Act instruction did not apply to administrative review of a decision made under the relevant provision of the NCCP Act.

48. This line of thinking leads me towards the conclusion that relevant evidence that was before or available to the decision-maker at the time of the decision under review must be included in the evidence before the Tribunal. To that may then be added the evidence brought forward by the parties, including, where relevant, evidence generated after the decision under review was made.

49. Frugtniet is binding on me, and on the basis of all the above, I have concluded that the applicant is correct in presenting it as a complete answer to the application of section 75 of the Health Act to administrative review, under section 130, of decisions taken under section 70 of that Act. The MDAAC report, any statements made to and reports prepared for (and only for) the MDAAC are evidence before the Tribunal for the purposes of the review of the CEO’s decision; and material prepared in reliance on the MDAAC report is not inadmissible because of that reliance.

What is under review?

50. The other primary contention of the respondent in the application for interim orders is that the Tribunal’s task is to review the decision of the CEO, and not the report, or the functions, of the MDAAC. There is some force to this argument. Section 70 of the Health Act requires the CEO to consider the recommendations of the scope of clinical practice committee report and decide either to take the actions recommended or some alternative that was available to the committee. That focuses the CEO’s attention on the recommendations of the committee and not on how it came to those recommendations; and the case law makes plain that the role of the Tribunal, on review, is to review the CEO’s decision, not the reasons for that decision.

51. Nevertheless, to reach some conclusion on the merits of the decision, the Tribunal will necessarily have to examine the reasoning by which that decision was arrived at. There is nothing remarkable in that statement; every merits review of an administrative decision is likely to examine the reasoning behind the decision. Where the decision is based on the recommendations of an expert or expert body, the Tribunal will inevitably look to see the basis on which those recommendations were made.

52. The respondent emphasised that the CEO at the time was not himself a doctor, and was therefore limited in being able to go beyond the MDAAC’s recommendations. But courts (and tribunals) are usually not themselves expert in fields where they hear expert evidence but are called on to assess the opinions of those who are. In considering the MDAAC’s report, the Tribunal is in the same position as any court or tribunal dealing with expert opinion evidence. In 56 Makita (Australia) Pty Ltd v Sprowles (Makita) Heydon J explored the requirements that expert opinion must meet in order to be admitted as evidence by a court. One of his conclusions was that ”... an expert witness must 'explain the basis of theory or experience' upon which the conclusions stated are supposed to rest, for, as Sir Owen Dixon said in an extra-judicial address … 'Courts cannot be expected to act upon opinions the basis of which is 57 unexplained'”. That view has been endorsed in subsequent cases, including by the High Court: “... the evidence must state the criteria necessary to enable the 58 trier of fact to evaluate that the expert's conclusions are valid”; “... the inference drawn by the expert which constitutes the opinion [must] be supported by reasoning on the part of the expert sufficient to demonstrate that the opinion is the product of the application of the specialised knowledge of the expert to 59 facts which the expert has observed or assumed.”

53. Thus the task of the Tribunal under section 70 of the Health Act, standing in the shoes of the CEO, is to consider, first of all, the recommendations of the MDAAC. The Tribunal will need to assess the merits of the recommendations in order to decide whether to adopt them or to prefer some alternative. That will in turn require an examination of the reasons to be found in the MDAAC report, and,

56 [2001] NSWCA 35 57 Makita at [60] 58 Dasreef Pty Ltd v Hawchar [2011] HCA 21, at [129] (French CJ, Gummow, Hayne, Heydon, Kiefel and Bell JJ) 59 Lang v The Queen [2023] HCA 29, at [11] (Kiefel CJ and Gageler J); at [434] (Jagot J) depending on the evidence that comes forward, possibly some examination of the MDAAC’s processes, to the extent that those processes have or may have influenced the soundness of the MDAAC’s reasoning — if, for example, the processes may have led to or encouraged the omission of relevant evidence or the inclusion of irrelevant evidence. But attention will only be given to the processes to that extent, and I can see no reason, at least at this point, why comment needs to be made on the processes in any broader context. In that regard, it is important to recall that the task of the Tribunal is not to look for error in the decision under review; it is to take a fresh decision, starting with the recommendations of the MDAAC, but taking into account all the evidence that has come forward.

53. The respondent’s contentions on this point laid a great deal of emphasis on the statement of reasons of Ms Zagari. But the statement of reasons, required by section 22B of the ACAT Act, supplemented by Rule 129 of the ACT Civil and Administrative Tribunal Procedures Rules 2024 (the Rules) is intended to inform the applicant, or another person affected by the decision, of the reasons the decision was taken. In the context of a review, the statement of reasons — which is nothing more than an account of how another decision-maker made the decision under review — is likely to be displaced by other, more first-hand, evidence.

Are the T-documents evidence?

54. It is not essential to respond to the contention put by the applicant in the alternative to the resolution of the application of section 75 by Frugtniet, but for reasons of completeness some comment may be useful. The applicant’s argument is that the T-documents are the administrative record of how the decision came to be taken, and are therefore not evidence. But the distinction between the T-documents and other materials — witness statements affidavits, expert reports and the like — is that the T-documents are required to be filed with the Tribunal and made available in the proceedings, by Rule 130 of the Rules. The other kinds of documents must be tendered, one of the parties may object, and a decision needs then to be made about admission. No objection will be made to the T-documents because there is a requirement for them to be filed; but to the extent that the Tribunal, or for that matter either of the parties, relies on any one of the T-documents, it becomes evidence for the purpose of the proceedings. I do not see any merit in the applicant’s argument on this point.

Conclusion

55. The respondent’s application for interim orders of 10 April 2026 sought nine orders. The first order sought was to limit the scope of the Tribunal’s review. As explained above, the scope of the review is determined by the relevant provisions of the ACAT Act (in particular sections 68 and 69) and the well-established principles of administrative review. No benefit would be obtained from orders restating that scope. The second order sought is again to limit the scope by preventing the review from dealing with matters relating to the MDAAC’s functions. For the same reasons, no orders of that kind are needed. The third, fourth and fifth orders sought would prevent material covered by section 75 of the Health Act, and documents infected by that material, from being admitted into evidence. As I have decided that section 75 does not operate to prevent the listed materials from being included in the evidence before the Tribunal, that element of the respondent’s application for interim orders fails. The remaining orders sought propose ways to prepare the matter for hearing. A directions hearing will be listed to attend to those issues. I therefore see no reason for any orders to be made at this time. The way forward, accordingly, is for me to dismiss the respondent’s application.

Orders 1. The respondent’s application for interim orders, dated 10 April 2026, is dismissed.

2. The directions hearing listed for Friday 14 August 2026 is vacated.

3. A directions hearing is listed at 2:00 pm on Tuesday 14 July 2026.

……………………………….. Senior Member M Hyman Date of hearing: 15 May 2026 Counsel for the Applicant: Ms P Bindon Solicitors for the Applicant: MacKenzie Workplace Law Counsel for the Respondent: Ms K Edwards Solicitors for the Respondent: ACT Government Solicitor