REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
1 In these matters I gave judgment on 26 March 2007 (Ho v Professional Services Review Committee No. 295 [2007] FCA 388) and made orders in the nature of a writ of certiorari quashing the findings of each of the committees. In my previous judgment (Ho [2007] FCA 388 at [114]) I invited submissions as to whether I should make additional orders in the nature of writs of prohibition prohibiting the members of each of the two committees from further constituting those committees and, secondly, whether orders in the nature of writs of mandamus ought be made requiring the fourth respondent to each proceeding to reconstitute each committee to further consider each of the administrative referrals made under s 86 of the Health Insurance Act 1973 (Cth) in accordance with law. I have heard submissions today on these issues.
2 During the course of argument today counsel for each committee confirmed that the only respondent who was party to either application in the proceedings before me had been, and is, each committee. Accordingly, it would not be appropriate to make any order in the nature of a writ of mandamus requiring any other party to the proceedings who had not appeared at the hearing to do anything, since they have neither had an opportunity to be heard nor have not submitted to any order the Court might make. In light of that I am satisfied that it would not be appropriate to make the second order about which I had invited submissions.
3 More contentious was the question whether I should make orders in the nature of a writ of prohibition. Each of the committees argued that, having decided to quash the findings that they had made, I should leave it to the good judgment of the Director of Professional Services Review to reconstitute a new committee comprised of such members as he or she may think fit, pursuant to s 95 of the Act.
4 I was informed from the bar table that three of the practitioners who had been on the committees were no longer on the relevant panel from whose members the director may draw in constituting a committee under s 93. Two of the members of the panel who comprised Committee No 295 are no longer members of the panel and one of the members of Committee No 293 is no longer a member of the panel.
5 The committees argued that it would not be appropriate for me to make any order in the nature of a writ of prohibition because they were not acting inappropriately or in a way which made apposite the passage from the decision in The Queen v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13 at 35-36 which I cited in my earlier judgment (Ho [2007] FCA at [110]).
6 The committees relied on the concurring judgment of Brennan J in Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666 at 681-682. His Honour there was dealing with whether it was appropriate to make an order for costs against the tribunal which had appeared as the active contestant in the proceedings, notwithstanding the observations of the Court in Hardiman (144 CLR at 35-36). Brennan J said:
'But where the proceedings before the tribunal are not inter partes, and where the Attorney-General cannot or does not intervene to represent the public interest (cf Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391) and neither a law officer nor a public official is heard by the Court (cf Reg v Cook; Ex Parte Twigg (1980) 147 CLR 15), it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the Court and, in an appropriate case, to argue against the applicant's case. That is what was done in this case. Here the Tribunal's function was to determine whether and to what extent a claimant was entitled under statute to a payment out of public moneys.
Though the Tribunal was bound to act impartially, it was in a sense, the guardian of the moneys appropriated by Parliament to answer the proper claims for compensation under the Act. In proceedings to review its decision, the Tribunal properly represents the public purse, and it was right that the Tribunal should appear by counsel as a party to respond substantially to the application. It follows that the Tribunal should then be treated as an ordinary party in the matter of costs.'
7 The question here is slightly different. The committees are charged with making administrative decisions, the effect of which can have a profound impact upon the professional standing and careers of doctors practicing in the Commonwealth. The committees each appeared, as I noted in my earlier judgment, as active protagonists in the proceedings. Counsel were unable to identify any previous decision of the Court in which a submission had been made that committees had engaged inappropriately by being the active respondent to proceedings in the sense identified in Hardiman (144 CLR at 35-36). Counsel for the committees also drew my attention to the decision of the Court of Appeal of the Australian Capital Territory in Regina v Doogan; Ex Parte Lucas-Smith (2005) 193 FLR 239, especially at 279-280 [179]-[180] where Higgins CJ, Crispin and Bennett JJ referred to the principles in Hardiman 144 CLR at 35-36 and Brennan J's remarks in Fagan 150 CLR at 681-682.
8 Counsel for the committees also cited from a decision of the Full Court of this Court in Commonwealth v Human Rights and Equal Opportunities Commission (1998) 76 FCR 513 at 527D-F where Burchett J, who was a member of the Full Court, observed that a possible outcome of the proceedings in that case would be a re-hearing before the commission. He said:
'How could the matter then proceed to be and be, seen to be, dispassionately determined? The Commission had chosen, without any necessity (for X was capably represented), to descend into the arena and contend on an issue of substance as a partisan. In my opinion, it is very important, if parties are to retain confidence in the integrity of the Commission's decisions, that it refrain from a role which risks bringing its impartiality into question. If I had thought outstanding issues of fact remained to be decided in this case, I would not, in the circumstances, have considered it appropriate to compel the appellant to accept a referral back to the Commissioner. That is the consequence of ignoring Hardiman.
In those rare cases where no party can represent one side of an issue which the Commission would wish to put, the course mentioned in Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 130 and in the later decision Australian Conservation Foundation v Forestry Commission (Tas) (1988) 76 LGRA 381; 81 ALR 166 at 383; 168, 386; 171 of joining the Commonwealth, so that it can put an appropriate submission, may be available. That course was not available here, the Commonwealth being already an active party, but it was also unnecessary, since, as I have said, X was capably represented.'
9 This issue was not considered when the High Court dealt with the matter on appeal in X v The Commonwealth (1999) 200 CLR 177. The unfortunate situation in the present case is that neither of the doctors had joined, or proceeded at the hearing of this matter against, any respondent who could actively contest the proceedings other than the committees. Nor did the committees seek to have joined the Attorney-General of the Commonwealth or any minister administering the Act who might be a proper party to contend for the upholding of the committees' decisions. The committees pointed out that each of the other respondents in the proceedings had either become functus officio in connection with their involvement in the process of determining whether the investigative referrals should be made and how they should proceed, or were still to perform their functions and therefore could not effectively become active parties seeking to uphold decisions while retaining their own impartial status.
10 This has produced a very unfortunate situation. Each committee has appeared and argued, not merely as to statutory construction issues, but also substantively, that its decision in the first instance was correct. The Hardiman principle has been applied recently by the New South Wales Court of Appeal in Campbelltown City Council v Vegan [2006] NSWCA 284 but the circumstances were not similar to those in the present proceedings. It has caused me considerable concern that the situation has arisen as it has and that there has been no previous consideration of this point by other members of the Court so far as the researches of counsel and those I have been able to conduct this morning have shown. True it is that in other cases the court has declined to make an order that the committee be differently constituted, when matters were remitted after quashing of findings, but it does not appear that the Court in those cases - at least from the terms of the judgments that have been reported to which I have been referred - dealt with the precise question raised in Hardiman 144 CLR at 35-36.
11 Counsel for the committees referred to the decision of the Full Court in Oreb v Willcock (2005) 146 FCR 237. But Lander J said that there was nothing before the primary judge which meant that the committee there could not reconsider the matter, and that there was no suggestion of bias or apprehension of bias, the only error being simply as to the construction of the Act (Oreb 146 FCR at 273 [248]). In this case a substantive argument of apparent bias was made by the doctors against each committee. I rejected that argument in relation to the way in which each committee approached its task in assessing what was before it during its hearing and in the course of making its findings (see Ho [2007] FCA 388 at [113]). But in argument before me there was an allegation of apparent bias. The committees made substantive submissions as to why their decisions were open, on the law and the facts, and why the law was as they had contended it to be during the course of the hearing. It was this feature that caused my concern once the Hardiman point had been raised by the doctors late in the course of the hearing before me.
12 As Brennan J recognised in Fagan 150 CLR at 681-682, there are circumstances in which administrative decision makers can and should appear as active protagonists in litigation involving the correctness in law of their decisions, but that is not the ordinary course. The decision in Hardiman 144 CLR 13 is well known. It is not necessary for statute to make provision for there to be a proper contradictor where challenges are made to the administrative decisions of persons charged under legislation with the duty to decide matters. In Fagan 150 CLR at 681-682 Brennan J, pointed out that it could be appropriate for the decision maker to appear and take an active part in proceedings where the Attorney-General, as the representative of the public interest, or some other appropriate officer of the Commonwealth in a case such as the present, cannot or does not intervene to represent the public interest.
13 In my opinion there is no reason why in the future the Minister administering the Act or the Attorney-General, or the Commonwealth itself, ought not intervene or be joined as party to proceedings to uphold administrative decisions of committees. It is undesirable that the committees be put into a position where they become active protagonists in the proceedings for the very reasons outlined in Hardiman 144 CLR at 35-36. One can well understand how these proceedings, given their history, have got to the point that they have, where I must now determine whether or not orders in the nature of a writ of prohibition ought be issued prohibiting the members of the committees from further participating, so far as they still are members of the panel and are able to participate, in the deliberations on the administrative referral in each doctor's case.
14 The hearing before me was conducted as one in which there was an active and substantive argument put not merely as to statutory construction but to support the impartiality of decision-making processes of committees which were under attack for apparent bias. I am of opinion that, having regard to those matters, a fair-minded lay person properly informed as to the nature of the proceedings or process before the committee, were the matter remitted to members who had previously constituted them, might reasonably apprehend that those members might not bring an impartial mind to the making of the decision (see the cases cited in Ho [2007] FCA 388 at [106]. I am therefore of opinion that it is appropriate, albeit extremely unfortunate, to make an order in each matter in the nature of a writ of prohibition which will have the effect that none of the current members of each committee who are capable of being constituted on a further committee be members of any such reconstituted committee.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.