extension of time
36 The respondents point out that the applicant's application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), so far as concerns the decisions of the Commission and the Committee, were made outside the time permitted by the Act and require extension. No issue was taken about whether these decisions were of such a kind to be reviewable. The point about the need for an order extending time was not taken when orders by consent were made granting leave to amend on 1 October 2003 nor when the matter was set down for hearing. Further, the applicant would not be prevented from pursuing these matters under s 39B(1A) of the Judiciary Act. Insofar as an extension of time is necessary, it should be granted.
GROUND 1
37 There was no evidence of any policy as referred to in paragraph (iii) of this ground. It is however clear that the Commission determined to refer the question of the applicant's conduct for the reason that it had identified evidence of a prescribed pattern of services as referred to in reg 10.
38 The applicant submits that the Commission was not entitled to make a referral automatically upon establishing that there had been 80 or more services on 20 or more days in a 12 month period. A Full Court in Kelly v Daniel [2004] FCAFC 14 had held that s 86 confers a broad discretion upon the Commission in relation to the decision to refer the question whether a practitioner has engaged in inappropriate practice to the Director (at [82]). The Commission is not entitled to answer the question whether there should be an investigative referral by reference to the prescribed pattern of services contained in s 106KA alone (at [81]).
39 In Kelly v Daniel there was a circumstance which would have been relevant to the exercise of the Commission's discretion, but which it did not take into account. It was this feature which resulted in the Commission's referral decision being held invalid. The Commission had itself been involved in negotiations and with counselling of the practitioner, but had not taken these factors into account in determining to refer. Its decision was based solely upon its opinion that there had been a breach of the '80/20 rule'. It considered that where there had been such conduct it was obliged to make a referral.
40 In the present case there is no additional factor which the Commission ought to have considered. It was submitted that it ought to have considered all aspects of the applicant's conduct and whether there were 'exceptional circumstances' present. The Commission ought also have considered whether the applicant had engaged in inappropriate practice, it is submitted.
41 The submissions misunderstand the role of the Commission and the points at which the questions - whether there has been an engagement in an inappropriate practice and if so whether there have been exceptional circumstances shown to explain the practice - arise.
42 The role of the Commission, in the statutory scheme, is a limited one. It considers whether the person under review may have engaged in inappropriate practice, in determining whether to refer the matter for investigation. As earlier discussed it has a discretion not to refer if there are factors present which suggest that it is not appropriate to do so.
43 The Commission is not required to come to a conclusion whether there has been an engagement in inappropriate practice. Nor does the Director answer that question. The question is one posed for a Committee constituted by the Director after the Director's investigation. The Director considers only whether a Committee could reasonably make such a finding.
44 The statute leaves a finding, as to whether there has been inappropriate practice, to the Committee. Such a finding is open where the services rendered constitute a prescribed pattern of services. It is the Committee's task however to consider whether exceptional circumstances have been shown in the referral period. It is the Committee's finding which found the directions which may be made by the Determining Authority.
45 A conclusion that it is not intended that the Commission have the role envisaged by the applicant's submissions is confirmed by a consideration of the materials which are likely to be before the Commission. In the present case it had not only its records but also the applicant's representations justifying his lack of consultations, because he had provided them in connexion with the earlier referral which had been discontinued. In the usual case however the Commission will not be in possession of material from the person under review. The first notification the person has is when they receive a copy of the investigative referral, after the Commission's decision to refer is made.
46 It could not be said that there was a matter or matters which the Commission was obliged to take into account in the present case in considering whether to refer the matter for investigation. This ground is not made out.
GROUNDS 5, 5A AND 5B - EXCEPTIONAL CIRCUMSTANCES
47 The essential feature of the explanation put forward by the applicant was that he was working in a rural area which suffered from a shortage of doctors. This was exacerbated by the fact that he was the only doctor in the area who bulk-billed all patients. As a consequence there was a larger demand for his services. The Committee appears to have accepted that there was a shortage of doctors in the area and a large demand for his services. It did not accept that the situation was exacerbated on particular days nor did it accept that the organisation of the applicant's practice constituted exceptional circumstances. I do not understand the applicant to challenge these latter findings.
48 The principal error which the applicant identifies is the Committee's opinion that 'exceptional circumstances' generally refers to intermittent or episodic situations and not ongoing situations or those of long-standing. The Committee's finding that the term does not refer to matters which are within a practitioner's control is also said to be erroneous.
49 'Exceptional' circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances. Speaking in the context of extradition, Gleeson CJ, McHugh and Gummow JJ have held that 'special circumstances' need to be 'extraordinary and not factors applicable to all defendants facing extradition'. It was not necessary that any particular circumstance be regarded as special; several factors in combination could constitute special circumstances: United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [52]. And in Baker v R (2004) 78 ALJR 1483; [2004] HCA 45 at [13] Gleeson CJ considered the use of 'special circumstances' to condition the exercise of judicial discretion. His Honour said:
'This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.'
50 Although his Honour was speaking of judicial decision-making the observations are apposite here. The words 'exceptional circumstances' may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the words of the relevant statutory provision. That is a question which arises here.
51 The process of construing words in a statute must always begin with an examination of the context of the provision being construed: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381, [69]. As was there pointed out, the object of statutory construction is to construe a provision so that it is consistent with the language and the purpose of the provisions of the statute as a whole. It is necessary to give meaning to each word of a provision (at 382, [71]). And words are to be assumed to be used consistently: Craig, Williamson Proprietary Limited v Barrowcliff [1915] VLR 450 at 452, unless a contrary intention appears.
52 Section 106KA(2) has the effect that a finding of inappropriate practice which would otherwise be made under s 106KA(1) is not to be made. The reason it is not made is that the Committee is satisfied that the explanation provided by the practitioner, as to why the practitioner was required to attend upon so many patients on the days in question, identifies exceptional circumstances. The 'exceptional circumstances' are therefore an unusual circumstance or circumstances which caused or influenced the practitioner to exceed the number of services which ought to have been provided or which otherwise provides the explanation for that conduct. This connexion is confirmed by the reference in the subsection to circumstances which existed 'that affected' the rendering of services.
53 It does not seem to me that the 'exceptional circumstances' in s 106KA(2) should be read as importing some temporal element. The words are not directly qualified and there is nothing in the purpose or object of the subsection which would suggest that such a limitation was either intended or necessary. The purpose of the provision is to protect a practitioner where the large number of consultations are shown to have been brought about by circumstances which are out of the ordinary and, one would think, beyond their control. Protective provisions ought not be construed in such a way as to limit their scope: Day & Dent Constructions Pty Ltd (In Liquidation) v North Australian Properties Pty Ltd (Provisional Liquidator Appointed) (1982) 150 CLR 85 at 107 - 108 per Mason J. If the Committee, when it considers the provision of services, finds that exceptional circumstances existed, the basis for an exemption from a finding of inappropriate practice is made out. Such a finding can and should relate to so much of the referral period over which the exceptional circumstances were maintained.
54 The reference in the subsection to a person's conduct being affected by exceptional circumstances 'on that day or those days' is not in my view to be taken as limiting the duration of the circumstances which are exceptional. In the context of a prescribed pattern of services the Act and regulations focus upon the number of services, or consultations, provided in a day, and the subsection simply reflects this. The phrase also reflects the recommendations of the Committee that the practitioner be given the benefit of the whole day, where exceptional circumstances are shown to have occurred on that day. It is to be assumed that the influence of the circumstances extends over a whole day. There is nothing in my view which would prevent the 'days' referred to as being any number of days in the referral period, or indeed all of them.
55 A view that 'exceptional circumstances' is not restricted to some days or some other short period, and that there is no time limitation to be read into the words, is borne out in part by reg 11. The regulation identifies as exceptional circumstances situations which might be of either short or long duration.
56 Regulation 11(a) describes 'an unusual occurrence causing an unusual level of need for professional attendances' as exceptional circumstances. One may consider the example of an epidemic or a tragedy involving injury to many people. Occurrences of these types may require far more doctors in one location than is normally required. Their duration may vary, depending upon the nature of the occurrence and the availability of other practitioners over time to assist and so to reduce the number of services each practitioner is required to provide. It may however be observed that occurrences of this kind would not be expected to continue indefinitely. But that assumption does not provide a warrant for reading 'exceptional circumstances' or the duration of 'unusual occurrences' as limited to particular periods of time. It may however be observed, in connexion with this part of the regulation, that it requires that the unusual occurrence explains the need for the level of services provided in the period. This is consistent with the construction of s 106KA(2) to which I have referred.
57 The circumstances referred to in reg 11(b) might pertain to a lengthy and even an indefinite period. Exceptional circumstances will exist so long as there are no other medical services available to the practitioner's patients. In some rural or remote areas this may not be a matter which can readily be resolved. The fact that it is a circumstance which might maintain for some time was acknowledged by the Committee itself.
58 In my view the Committee was in error in limiting the operation of 'exceptional circumstances' to intermittent or episodic events and denying their application to circumstances which were of an on-going nature. This error clearly affects its findings relating to the applicant's claim that a shortage of medical services put him in a position where he had no choice but to see an unacceptably high number of patients. It is difficult to imagine that the decision may not have been different if this error had not occurred and therefore the decision involves an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353, 384. Nonetheless there is another aspect of the Committee's understanding of the meaning of 'exceptional circumstances' which requires consideration.
59 The Committee also considered that the term did not refer to circumstances within a practitioner's control. So much may be accepted. If, to take an example, there was a shortage of doctors in an area which could be remedied by the local practitioner bringing others to the area it would be difficult to conclude that the circumstances pertaining to the practitioner's practice were 'exceptional'. Rather it results from an exercise of choice.
60 The Committee did not however make findings of this kind concerning the applicant's claims that the shortages of doctors could not be remedied, although he had tried. The control it spoke of, which the applicant could exercise, was practice management. In its view he could simply limit the number of patients he saw each day to keep below the prescribed figure.
61 The control which the Committee considered ought to be exercised by the applicant was not one which could be directed at the lack of medical services to disadvantaged people. The practice management of which it spoke would, on the applicant's evidence to it, leave some people on some days without a doctor to see because they could not afford it.
62 The Committee did not deal with the applicant's claims that there was a shortage of doctors in the area for the number of patients needing services nor with his claim that he was the only doctor who could provide medical services to disadvantaged people because only he bulk-billed every patient. Properly understood, the applicant's claim was of a shortage of medical services to disadvantaged people. This explanation was not considered by the Committee. Unless the Committee took a different view of the facts, which it did not, the explanation clearly comes within what is contemplated by reg 11(b).
63 The Committee approached the references to the shortage of medical services and the applicant's bulk-billing practice as separate questions. It was of the view that because shortages of medical services were not uncommon in some rural areas they could not be regarded as exceptional circumstances. And it considered that the provision of services which are bulk-billed are not themselves unusual. What it did not consider was whether the combination of which the applicant spoke provided the explanation of the need for his services and whether they were exceptional. I add that the Committee's reasoning with respect to shortages is untenable. The fact that there may be a number of areas suffering from a shortage of medical services does not negate the fact that there is a shortage in each area. It follows that in each area there will be an 'exceptional circumstance' as contemplated by reg 11(b).
64 In my view the Committee's decision was affected by substantial errors. The first involved a misunderstanding of the meaning to be given to a term in a statutory provision which it was applying. The Committee then failed to identify the correct question, about the nature of the medical shortage, and failed to apply reg 11(b) in its own terms. It has made errors of a jurisdictional kind: Minister for Immigration and Multicultural Affairs v Yusuf(2001) 206 CLR 323 at [84]. Its finding of inappropriate practice and that of the Determining Authority following upon it should therefore be set aside.