These reasons address the question of whether or not a reconstituted Tribunal can complete a hearing when the member presiding, in this case a Judge, becomes unavailable during the course of the hearing of a matter under the Health Practitioner Regulation National Law (the National Law).
An inquiry into a complaint about Dr Mohammed Shareef-Ud Dowla (the practitioner) was heard by the Tribunal (comprising Acting Judge K O'Connor, Deputy President, Associate Professor M Krause, Dr A Reid and Ms J Barker) over three days concluding in November 2017. That Tribunal's reasons were published on 8 March 2018 (the Stage 1 decision). The Tribunal's decision was recorded on the cover sheet of the reasons and included a finding that the practitioner was guilty of professional misconduct (the subject of Particular 1 of the complaint). The decision also noted the Tribunal found the practitioner guilty of unsatisfactory professional conduct in relation to part of the conduct the subject of Particular 3 and the whole of conduct the subject of Particular 4. The decision also noted that the matter was to be listed for a further hearing in relation to appropriate disciplinary orders (the Stage 2 hearing).
In broad terms, the Tribunal found the practitioner had engaged in inappropriate conduct of a sexual nature with Patient A and had given his private telephone number to her. The latter finding was not disputed by the practitioner in his Reply.
Three significant matters have occurred since the Stage 1 reasons were published on 8 March 2018. First, it was discovered that due to an administrative error, the reasons published did not correctly reflect the Tribunal's decision. Secondly, Acting Judge O'Connor, for personal reasons, became unavailable to complete the Stage 2 hearing (the making of appropriate protective orders). Finally, the practitioner has filed a Notice of Intention to Appeal the Tribunal's Stage 1 reasons in the NSW Court of Appeal. The first two matters resulted in Acting President Hennessy LCM, signing an instrument of reconstitution of the Tribunal under 52 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and the publication of amended reasons on 6 April 2018 (see Health Care Complaints Commission v Dowla [2018] NSWCATOD 52). Under the reconstitution instrument, which was executed after the parties were afforded an opportunity to make submissions, I was appointed as the member presiding for the purpose of the Stage 2 hearing.
On 1 June 2018 the matter was listed before me for directions. On that day I heard oral submissions from Mr Terrence Lynch SC (supported by written submissions of Mr Lynch SC and his junior Mr Shahan Ahmed). The submissions challenge the legal competency of the Tribunal's order made on 6 April 2018 that the Stage 2 proceedings be listed for directions on 3 August 2018 before me following the anticipated disposal of the proceedings before the Court of Appeal, or to check the status of those proceedings. Although the Stage 2 proceedings have not been fixed for hearing, the present oral application supported by the submissions seeks to pre-empt the fixing of the Stage 2 proceedings before the reconstituted panel. The practitioner's senior counsel submits that the order (which is not identified): that the above proceedings continue before a panel different from the Stage 1 panel is:
"(1) made without power and is legally ineffective; and
(2) that the proceedings, if they are to continue, must be entirely reheard."
The position advanced by the practitioner's senior counsel is opposed by Mr A Britt of counsel on behalf of the Health Care Complaints Commission (the HCCC).
At the conclusion of the directions hearing I provided a time-table for written submissions by the parties. Mr Britt had provided submissions dated 1 June 2018 which were handed up at the hearing. Further written submissions were provided on behalf of the practitioner on 5 June 2018 and further submissions in reply were provided by Mr Britt on 6 June 2018. I have been assisted by the parties' helpful submissions.
[2]
Power to hear this application.
Mr Lynch SC submitted that I had power to hear this application in my capacity as List Manager under s 165 (5A) of the National Law as an ancillary decision as defined in the NCAT Act (see s 3). Although Mr Britt originally submitted in both in his written submissions and orally that the correct application was an appeal against the Tribunal's orders of 6 April 2018 based on [13] of the Tribunal's reasons, ultimately that position was not pressed. I note that under the NCAT Act an ancillary decision is defined as a decision "concerning whether the Tribunal has jurisdiction to deal with a matter". I accept the application before me can be categorised as an ancillary decision.
[3]
Relevant provisions of the National Law and the NCAT Act.
This ancillary decision is one based principally on statutory construction. Both the National Law and the NCAT Act have provisions dealing with the constitution of the Tribunal. I commence by setting out the relevant provisions of the National Law followed by the NCAT Act provisions.
Division 10 of Part 8 of the National Law deals with the constitution of and proceedings in, the Tribunal. The division sets out how the Tribunal is to be constituted (with limited exceptions) to hear inquiries or appeals. Sub-division 1 contains definitions including that of "senior judicial officer" and "medical practitioner proceedings". It is not in issue in this application that an inquiry into a complaint against the respondent must be constituted with a senior judicial officer presiding.
Emphasis is placed on s 165A by the practitioner's counsel. Section 165A, which is found in sub-division 1 provides as follows:
165A Relationship with NCAT Act [NSW]
The provisions of this Division are intended to apply despite anything to the contrary in the Civil and Administrative Tribunal Act 2013.
Section 165A is relevant to this application.
Section 165B deals with the constitution of the Tribunal to hear and determine complaints referred to it and appeals lodged under the National Law. The section and the notes thereto provide as follows:
(1) If a complaint is referred to the Tribunal or an application or appeal is made to the Tribunal under this Law--
(a) the Tribunal must inform the Council for the health profession of the referral, application or appeal; and
(b) the Council for the health profession must select 3 persons (whether or not they are currently Division members) to sit as members of the Tribunal in the proceedings.
Schedule 5 to the Civil and Administrative Tribunal Act 2013 provides the President must appoint a person as an occasional member for particular proceedings entered in the Health Practitioner List if that person has been selected for participation in the proceedings in accordance with any applicable procedures specified by or under this Law. If a person selected under subsection (1) (b) is not already a Division member, the President will be required to appoint the person as an occasional member in relation to the proceedings.
(2) Except as provided by subsections (4), (5) and (5A), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by--
(a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and
(b) 2 health practitioners selected for appointment by the Council as occasional members under subsection (1) (b) who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal; and
(c) 1 lay person (that is, a person who is not registered in the health profession) selected for appointment by the Council as an occasional member under subsection (1) (b) from among a panel of lay persons for the time being nominated by the Minister.
(3) If the health profession has divisions, at least one and, if practicable, both, of the health practitioners referred to in subsection (2) (b) must be registered in the same division of the health profession as the health practitioner or student the subject of the inquiry or hearing.
(4) The Tribunal, when constituted to hear appeals under this Law that are restricted to points of law, is to be constituted by--
(a) in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; or
(b) in any other case, 1 Division member who is an Australian lawyer of at least 7 years' standing.
(5) The Tribunal, when constituted to exercise a function under section 146D or 148G, is to be constituted by a Division member selected by the Tribunal List Manager.
(5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a).
(6) A person is not to be selected to sit on the Tribunal if the person is a member of the Council.
(7) An inquiry or appeal conducted or heard by the Tribunal under this Law may relate to more than one health practitioner or student if the complaint or complaints the subject of the inquiry or appeal arise from the same conduct.
The correct interpretation of s 165C is at the heart of this application. It provides as follows:
165C Effect of vacancy on Tribunal [NSW]
(1) If one of the members (other than the presiding member) constituting the Tribunal for the purpose of conducting a hearing under this Law vacates office for any reason before an inquiry or appeal is completed or a decision is made in respect of an inquiry or appeal, the inquiry or appeal may be continued and a determination made by the remaining members of the Tribunal.
(2) If more than one of the members vacate office, or the presiding member vacates office, for any reason before the Tribunal has completed an inquiry or appeal or made a determination in respect of an inquiry or appeal, the inquiry or appeal is terminated.
(3) When an inquiry or appeal is terminated, the Tribunal may be reconstituted in accordance with this Division for the purposes of conducting a new inquiry or appeal in respect of the matter concerned.
(4) In this section:"presiding member" means the member referred to in section 165B (2)(a).
Provisions of the NCAT Act also require consideration. As explained in the notation to s 165B, the President or his delegate must appoint persons, who are not already members of the Tribunal, selected by the relevant Council, as occasional members of the Tribunal under Schedule 5 cl 12. Clause 13 of the Schedule deals with the constitution of the Tribunal for proceedings in the Health Practitioner List. The two clauses are in the following terms:
12 Appointment and assignment of Division members where required under National Law
The President must:
(a) appoint a person as an occasional member for particular proceedings entered in the Health Practitioner List if that person has been selected for participation in the proceedings in accordance with any applicable procedures specified by or under the National Law, and
(b) assign a term member to the Division to participate in a particular class of proceedings entered in the Health Practitioner List if the person has been selected for participation in that class of proceedings in accordance with any applicable procedures specified by or under the National Law.
13 Constitution of Tribunal for proceedings entered in Health Practitioner List
(1) The Tribunal, when exercising a Division function in proceedings that are entered in the Health Practitioner List, is to be constituted (and, where necessary, reconstituted) in accordance with any applicable requirements specified by or under the National Law for the constitution of the Tribunal in proceedings of the kind concerned
(2) Nothing in subclause (1) limits the exercise by the List Manager for the Health Practitioner List (or a delegate of the List Manager) of any of the functions of the List Manager.
The National Law also makes special provision with respect to certain practice and procedure for proceedings entered in the Health Practitioner List.
Section 9 of the NCAT Act set out the membership of the Tribunal. The section provides in sub-section (4) for the appointment of term members. Sub-section (5) provides that a member, appointed by or under the NCAT Act "to be a member for the purpose of specified proceedings", is referred to in the Act as an "occasional member". The President appoints occasional members under s 11 of the NCAT and may delegate such appointment to the relevant Division Head (the Occupational Division) or the List Manager. Section 15 of the NCAT Act enables the President to appoint a NSW Judicial Officer to act as a member if certain conditions are fulfilled. Thus, occasionally the presiding member of the Tribunal in a medical matter may be a Judge, not otherwise a member of the Tribunal.
Division 6 of the NCAT Act deals with the constitution of the Tribunal. Section 27 sets out constitutional requirements for the Tribunal. The footnote to s 27 refers to the specific requirements for constitution in the Schedule for a division (in the case of health practitioner matters being cl 12 of Schedule 5 set out above).
Part 4 of the NCAT Act deals with practice and procedure. Section 35 and the notes thereto provides as follows:
35 Application of Part
Each of the provisions of this Part is subject to enabling legislation and the procedural rules.
The Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the practice and procedure to be followed in connection with certain proceedings allocated to the Division for determination. The provisions of the Division Schedule prevail to the extent of any inconsistency with the provisions of this Part. See section 17 (3).
Section 4 (4) also provides that any provisions of this Act that are expressed to be subject to the procedural rules have effect subject to any exceptions, limitations or other restrictions specified by the procedural rules.
Enabling legislation may also make provision for matters relating to practice and procedure in relation to functions conferred on the Tribunal, including (for example) specifying periods within which applications or appeals under that legislation are to be made.
Section 52 of the NCAT Act deals with reconstitution of the Tribunal during proceedings. It provides as follows:
52 Reconstitution of Tribunal during proceedings
(1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if, before the matter is determined, the member:
(a) becomes unavailable for any reason, or
(b) ceases to be a member, or
(c) ceases to have a qualification required for participation in the proceedings.
(2) The President may not replace a member unless the President has first:
(a) afforded the parties an opportunity to make submissions about the proposed replacement, and
(b) taken any such submissions into account.
(3) The Tribunal as so reconstituted is to have regard to the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.
I note that there is no dispute in this matter that prior to executing the instrument of reconstitution by the Acting President, notice was given to the parties of the proposed reconstituted panel in which I was substituted for Acting Judge O'Connor as the presiding member and that no objection was raised by the parties at that time or at the re-opening on 6 April 2018 to the proposed membership.
Clause 7 of Schedule 2 of the NCAT Act deals with the situation where a member of the Tribunal vacates office. It provides as follows:
7 Vacancy in office of member (other than President)
(1) The office of a member (other than the President) becomes vacant if the member:
(a) dies, or
(b) in the case of a term member--completes a term of office and is not re-appointed, or
(c) in the case of an occasional member--when the proceedings in relation to which the member has been appointed as an occasional member have been finally determined for the purposes of section 11, or
(d) resigns the office by written instrument addressed to the Minister, or
(e) is nominated for election as a member of the Legislative Council or of the Legislative Assembly or as a member of a House of Parliament or a legislature of another State or Territory or of the Commonwealth, or
(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(g) becomes a mentally incapacitated person, or
(h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(i) is removed from office under subclause (2).
(2) The Governor may remove a member (other than the President) from office for incapacity, incompetence or misbehaviour.
I note that at the time of the execution of the instrument under s 52, none of the circumstances constituting vacation of office were applicable to Acting Judge O'Connor in his role as Deputy President of the Tribunal.
Although not directly relevant to the issues in this application cl 8 of Schedule 2, as I will shortly explain, is of interest. It provides:
8 Members and former members may complete unfinished matters
(1) This clause applies to a member (an "affected member") dealing with any matters relating to proceedings before the Tribunal that have been heard or partly heard (or were otherwise the subject of deliberations) by the member if, during the proceedings, the member:
(a) ceases to have a qualification specified by a Division Schedule for a Division of the Tribunal or enabling legislation for participation in the proceedings other than because of any of the following reasons:
(i) misconduct or unsatisfactory conduct of the member,
(ii) the mental incapacity of the member,
(iii) the member becoming bankrupt or insolvent, or
(b) ceases to be a member because of the expiration of the period of the member's appointment,
or both.
(2) An affected member may, despite becoming an affected member, complete or otherwise continue to deal with any matters in the proceedings concerned.
(3) While completing or otherwise dealing with matters referred to in subclause (2), the affected member is taken to have and may exercise all the rights and functions of a member that the affected member had immediately before becoming an affected member. (my emphasis)
The National Law in force immediately before amendments introduced on the commencement of the NCAT Act made provision for the appointment of Chairpersons and Deputy Chairpersons of the various health tribunals. Section 165B as then in force provided:
(1) The Governor may appoint -
(a) a qualified person as Chairperson of a Tribunal; and
(b) one or more qualified persons as Deputy Chairpersons of a Tribunal.
(2) The Chairperson and each Deputy Chairperson hold office for the period, not more than 7 years, specified in the instrument of appointment as Chairperson or Deputy Chairperson, but is eligible (if otherwise qualified) for re-appointment.
(3) A Deputy Chairperson may be appointed by the Governor for the purpose only of conducting or hearing a particular inquiry or appeal described in the instrument of appointment of the Deputy Chairperson.
(4) A Deputy Chairperson, while sitting on a Tribunal, has and may exercise all the functions conferred or imposed on a Chairperson by this Law.
(5) If the period of a person's appointment as Chairperson or Deputy Chairperson expires while the person is sitting on a Tribunal for the purposes of an inquiry or an appeal, the person may, despite that expiry, continue to sit on the Tribunal for the purpose of that inquiry or appeal (the continuing inquiry or appeal).
(6) For the purposes of the conduct or hearing of the continuing inquiry or appeal (and any provision of this Law or the regulations with respect to the inquiry or appeal), the person referred to in subsection (5) -
(a) is taken to be a Deputy Chairperson; and
(b) has and may exercise only the functions conferred or imposed on a Deputy Chairperson under this Law; and
(c) may exercise the functions only in respect of the continuing inquiry or appeal.
(7) A Chairperson or Deputy Chairperson sitting on a Tribunal is entitled to be paid the remuneration (including travelling and subsistence allowances) decided by the Minister from time to time.
(8) The Governor may appoint a Deputy Chairperson to act in the office of Chairperson during the illness or absence of a Chairperson and the Deputy Chairperson, while so acting, has and may exercise all the functions of the Chairperson and is taken to be the Chairperson.
(9) If a person who is a Chairperson or Deputy Chairperson ceases to be a qualified person, the person also ceases to hold office as Chairperson or Deputy Chairperson.
(10) In this section, qualified person means
(a) for the Medical Tribunal of New South Wales, a Judge of the Supreme Court (or a Judge or other person having the same status as a Judge of the Supreme Court) or a Judge of the District Court; and
(b) for another Tribunal, an Australian lawyer of at least 7 years' standing. (my emphasis)
A number of other provisions previously appearing in Division 10 including s 166-167G were repealed. These included s 166 formerly in Sub-Division 4 of Division 10, which dealt with the situation where there was division in opinion between the Tribunal members. It provided:
166 Decisions of Tribunals [NSW]
(1) The decision of a Chairperson or a Deputy Chairperson of a Tribunal on a question of law or procedure arising during an inquiry or appeal at which the Chairperson or Deputy Chairperson presides is the decision of the Tribunal for the purposes of the inquiry or appeal.
(2) A decision supported by at least 3 members of a Tribunal with respect to a question (other than with respect to a point of law or procedure) arising during an inquiry or appeal before the Tribunal is the decision of the Tribunal.
(3) If 2 members of a Tribunal support a decision and 2 members oppose the decision, the decision of the Chairperson or Deputy Chairperson presiding is the decision of the Tribunal. (my emphasis)
Section 57 of the NCAT Act deals with the situation where members are divided in opinion. It provides:
57 Tribunal divided in opinion
(1) If the Tribunal is constituted by more than one member for the purposes of the determination of any proceedings and the members are divided in opinion, the opinion of the majority is taken to be the decision of the Tribunal.
(2) However, a question of law arising in proceedings in which the Tribunal is constituted by one or more members who are Australian lawyers is to be decided in accordance with the opinion of the member or the majority of the members who are Australian lawyers.
(3) If the members are equally divided in their opinion, the opinion that prevails is:
(a) in proceedings in which the presiding member is an Australian lawyer or none of the members sitting are Australian lawyers - the opinion of the presiding member, or
(b) in proceedings in which the presiding member is not an Australian lawyer but one or more of the other members sitting are Australian lawyers:
(i) on a question of law - the opinion of the member who is an Australian lawyer (or the member with the greatest seniority who is an Australian lawyer), or
(ii) on any other question - the opinion of the presiding member.
(4) In this section, question of law includes the question whether a particular question is a question of law.
Thus it may be seen that various provision of the National Law have been replaced by provisions in the NCAT Act.
[4]
Issues to be determined
As noted at the commencement of these reasons the issues to be determined are:
1. What is the meaning of the words "vacates office"?
2. Does the National Law "covers the field" and exclusively determine the composition of a panel?
3. Is s 165C in conflict with s 52 of the NCAT Act?
4. Is s 165C repugnant to s 52 of the NCAT Act?
[5]
Summary of the submissions advanced on behalf of the practitioner
In the submissions of 1 June 2018 it is submitted at [3.5] that s 165C is engaged in respect of "vacation of office". It is submitted this means the re-constitution in any circumstance where more than one member or the presiding member vacates office.
It is submitted that s 165C of the National Law and s 52 of the NCAT Act are in conflict [3.6].
At [3.8] it is submitted:
The matter of re-constitution having been dealt with in Division 10 of the HPRN (NSW), its
"… provisions [s165C(3)] … apply despite anything to the contrary in [CATA]…" s. 165A HPRNL (NSW)
Schedule 5 cl.13 of CATA is to be same effect.
At [3.9] the submissions advance the argument that "Section 165C having wholly prohibited re-constitution other than for a rehearing, excludes reconstitution under the provisions of s. 52 CATA, because re-constitution in any circumstances other than rehearing is inconsistent with the provision of the HPRNL (NSW)".
The submissions go on to assert that "office" in s165C "is the [office of] the senior judicial officer appointed in accordance with s 165B(2)(a) to the panel of the Tribunal that is to conduct the inquiry into an Application". It is submitted [3.12] that the "office" occurs as a result of the individual's selection as the "presiding" or other member of a panel that is to conduct an inquiry, rather than that of being a member of the Tribunal.
It is submitted that the fact the President has the power to appoint a person, who is not a member of the Tribunal, to be an occasional member in relation to particular proceedings supports this interpretation. It is also noted that "a person so appointed cannot resign from the Tribunal other than vacating her or his position as a panel member". It is further submitted that the observations made in the reasons of 6 April 2018 that because Acting Judge O'Connor was merely unavailable, but remained a member of the Tribunal, and had not "vacated office", are wrong. This is because, it is submitted, whenever the presiding member, for some, or any reason, is unable to continue to preside, he or she vacates office of presider at the particular hearing.
It is further suggested that putting a different construction on s 165C would make little or no sense because, as a matter of policy, there is no different outcome between the circumstances where the presiding member resigns because of ill-health, and where, because of that ill-health, he or she is "unavailable to preside" because his or her recovery is too distant. Thus, it is submitted the impact on the proceedings is the same.
Succinctly at [3.18] the submissions note:
The "office" of a panel member is vacated whenever the member indicates that she or he cannot continue to perform it.
It is not disputed by the practitioner that the reconstituted panel may conduct a "new inquiry" into the application.
In the submissions received on 5 June 2018 the practitioner's senior counsel made further submissions having regard to the matters referred to by Sackville AJA in Medical Council of NSW v Lee [2017] NSWCA 282. The submissions at [3.5] note:
More generally Lee establishes that
"…there is inconsistency or repugnancy between a provision of Part 4 [CATA] ... and the National Law (NSW)"
If either
(1) "... there is … direct conflict between 2 provisions (... both cannot be obeyed simultaneously)", or
(2) "… as a matter of construction the National Law (NSW) is intended to operate in relation to a particular matter to the exclusion of .. the NCAT Act".
The submissions note the Tribunal's reasoning in Singh v Medical Council of NSW [2015] NSWCATOD 4 (which are relied on by the HCCC) is not consistent with Lee because Singh "adopts an inconsistency test and does not address the 'repugnancy' test". Thus, it is submitted the operation of s 165C of the National Law prevails over and excludes the operation of s 52 of the NCAT Act.
[6]
Summary of the submissions advanced on behalf of the HCCC
The HCCC submit that s 165 of the National Law does not deal with all situations where a Panel may need to be reconstituted but only where there has been a vacation of office by a member.
The submissions rely on Clause 7 of Schedule 2 of the NCAT Act (which I have set out above). That clause defines the limited circumstances when the office of a member (other than the President) becomes vacant. It is noted that none of these circumstances apply to Acting Judge O'Connor. Reference is made to the observations of the panel in Singh v Medical Council at [21].
It is submitted that there is no conflict between s 165C of the National Law and s 52 of the NCAT Act on the facts in these proceedings.
[7]
Principles of statutory construction
A principal consideration in construing s 165C is the operation and effect of s 165A. The learned authors of Statutory Interpretation in Australia DC Pearce and RS Geddes 8th edition at 12.4 explain, by reference to authority that the paramount provision will prevail only when there is an inconsistency or repugnancy between the relevant provisions (see also Basten JA in Lee at [7]).
The plurality of the High Court in Project Blue Sky v ABA (1998) 194 CLR 355 [1998] HCA 28 at [69]-[71] explained:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute [45]. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"[46]. In Commissioner for Railways (NSW) v Agalianos[47], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed[48].
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals[49]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions[50]. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other"[51]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision[52]. In The Commonwealth v Baume[53] Griffith CJ cited R v Berchet[54] to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". (footnotes omitted)
It is also useful at this point that I set out Sackville AJA's discussion in Lee. I have taken into account his Honour's useful chronology of the legislative amendments prior to the introduction of the NCAT Act. At [86]-[89] his Honour noted:
First, each provision in Part 4 of the NCAT Act, including s 43(3), is expressly made "subject to enabling legislation". This expression includes the National Law [NSW]. The words "subject to", like most common expressions found in legislation, has no fixed meaning but must be construed having regard to the context in which it appears. In some contexts, for example, the expression may mean that two pieces of legislation are to operate concurrently.[27] In others it may mean that one statute applies to the exclusion of another.[28]
When used to defined the relationship between two statutes or provisions, "subject to" is a standard means of establishing which provisions are dominant and which are subservient.[29] The subservient provisions therefore operate only to the extent that they are not inconsistent with or repugnant to the dominant provisions.[30] In C & J Clark Ltd v Inland Revenue Commissioners,[31] for example, the relevant subsection commenced with the words "subject to the provisions of this section". Megarry J said that:[32]
"the phrase 'subject to' is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision."
In my view, this is the meaning that should be given to s 35 of the NCAT Act. Thus to the extent that there is an inconsistency or repugnancy between a provision of Part 4 of the NCAT Act and the National Law [NSW] (or any other "enabling legislation), the National Law [NSW] governs. Whether there is an inconsistency or repugnancy depends on the proper interpretation of the relevant provisions of the National Law [NSW]. For present purposes it is necessary to consider whether there is any inconsistency or repugnancy between s 43(3) of the NCAT Act and the relevant provisions of the National Law [NSW]. The inconsistency might take the form of a direct conflict between two provisions (for example, where both cannot be obeyed simultaneously). There will also be an inconsistency in the relevant sense if, as a matter of construction, the National Law [NSW] is intended to operate in relation to a particular matter to the exclusion of s 43(3) of the NCAT Act.[33]
Secondly, the National Law [NSW] contains a detailed regime governing the circumstances in which a registered health practitioner is to be suspended and the duration of any such suspension. The Council is obliged to suspend a health practitioner if satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or that the action is otherwise in the public interest (s 150(1)). The suspension has effect until either the complaint is disposed of or the suspension is ended by the Council (s 150(2)).
[8]
Is there a conflict or repugnancy?
There are significant practical arguments to support the submissions of the HCCC. Those arguments are consistent with the object in s 3(d) of the NCAT Act (see also s 36).
A finalisation of the inquiry, with the making of appropriate protective orders, in a timely manner and cost effective manner would facilitate the object and principles in s 3 and s 3A of the National Law. But the Tribunal is bound by the relevant legislative provisions, in particular, those of the National Law.
I have taken into account the HCCC's reliance on the obiter observations in Singh. Those observations must be considered in the context of the proceedings then before the Tribunal where a professional member recused herself from continuing in the proceedings, and importantly, determined prior to the decision of the Court of Appeal in Lee.
[9]
Ordinary meaning of the words 'vacates office'
Central to the dispute in this matter is the construction to be given to the words "vacates office". The Macquarie Dictionary defines vacate as follows:
to make vacant; cause to be empty or unoccupied.
to give up the occupancy of.
to give up or relinquish (an office, position, etc.).
to render inoperative; deprive of validity; annul: to vacate a legal judgement.
to withdraw from occupancy or possession; leave; quit.
The definition of "office" includes the following
a position of duty, trust, or authority, especially in the government or in some company, society, or the like.
the duty, function, or part of a particular person or agency: the office of adviser.
official employment or position: to seek office.
hold office, to be the incumbent in a particular position, role, etc.
[10]
Meaning of the words "vacate office"
A consideration of the words vacates office must occur in the context in which they appear. As noted, Mr Lynch SC submits that the word "office" in s 165C is to be construed as the appointment to office for a particular inquiry or appeal, not office as a member of NCAT.
In order to construe the words "vacates office" he submits the words should be read as "vacate that office" being the appointment of the member, whether a judicial officer of the Tribunal, or occasional member appointed under s 11 or a judge appointed under s 15 of the NCAT Act to sit on the particular inquiry or appeal. This interpretation is supported by reference to the wording of s 11 which provides that an occasional member "holds office as such until the proceedings have been finally determined unless the person sooner vacates office".
While at first blush the reading of the words "vacates office" appears to relate to vacating the office of membership of the Tribunal, I consider properly construed, within the provisions of Division 2, the presiding member, a division member, vacates that role if he or she is unable, for any reason, to preside until the hearing is completed. Such an interpretation is consistent with a giving up of the occupancy of that particular role or office, while still remaining a presidential or term member as the case may be of the Tribunal.
On a proper construction, I conclude that the provisions of s 165C are the leading provisions, and the sub-ordinate provision in s 52 of the NCAT Act must give way. (See also s 165A of the National Law.)
Clause 13 of Schedule 5 of the NCAT Act is informative on the question of conflict or repugnancy. It provides that when performing "a Division function" (which includes the hearing and determination of an inquiry), the Tribunal is to be constituted (and, where necessary, reconstituted) in accordance with any applicable requirements specified by or under the National Law for constitution of the Tribunal in the proceedings of the kind concerned. This specific provision is inconsistent with a reconstitution under s 52 of the NCAT Act.
In my view, cl 13, when read in conjunction with the provisions of Subdivision 2 of Division10, makes it clear that Division 2 provides a complete code dealing with the constitution (and reconstitution) of the Tribunal.
[11]
Previous legislative provisions and provisions of the NCAT Act
I am fortified in this view by an examination of the legislation prior to the introduction of NCAT and the amendments introduced by the Civil and Administrative Legislation (Repeal and Amendment Act) 2013 (NSW) (the repeal and amendment Act). As noted by Sackville AJA in Lee while historical examination of legislation does not determine the interpretation issue, it may assist in providing relevant background and comparison.
An identical provision to s 165C was included in the Medical Practice Act 1992 (repealed) and also in the National Law prior to the repeal and amendment Act, but there was no provision such as found in s 52 of the NCAT Act in those Acts. Accordingly, at all times prior to the establishment of NCAT, if a Chairperson or Deputy Chairperson was unable to continue an inquiry, the matter was reheard with a reconstituted panel established under 165C(3) or its equivalent in the Medical Practice Act. Further, the repeal and amendment Act did substitute provisions for s 166-167G of the National Law, which appear in Sub-Division 4 of Part 10. But it did not repeal and replace s165C. Rather the NCAT Act made provision for the reconstitution of the Tribunal under the National Law in cl 13 of Schedule 5. (my emphasis)
[12]
Conclusions
For the reasons explained above, I conclude that there is a conflict or repugnancy between the provisions of the National Law and the NCAT Act concerning reconstitution of the Tribunal when a member becomes unavailable in part-heard proceedings. I am satisfied that, just as in relation to the stay provisions dealing with an appeal under s 159A, the National Law provides an elaborate and complete scheme for dealing with the constitution and reconstitution of the Tribunal.
Accordingly, I am satisfied that the Tribunal must be reconstituted under s 165C(3) to conduct the inquiry. How the inquiry proceeds will be determined at a directions hearing. It may be practical for the reconstituted panel to rely on the evidence before the previous Tribunal in the Stage 1 hearing and for the reconstituted Tribunal to consider that evidence afresh.
[13]
orders
1. The proceedings are listed for directions on 6 July 2018 at 11.30am.
2. The directions hearing listed for 3 August 2018 is vacated.
[14]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[15]
Amendments
22 June 2018 - file number updated
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Decision last updated: 22 June 2018