//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2014] ACTSC 48
Supreme Court of the ACT
2014-03-21
Murrell CJ
Original judgment source is linked above.
Richard Andrew Hocking v Medical Board of Australia & Anor
[2014] ACTSC 48 (21 March 2014)
CIVIL - Administrative law - judicial review - decision of ACT Medical Board - suspension of registration - meaning of mandatory notification of complaint - actual or apprehended bias - procedural unfairness
ACT Civil and Administrative Tribunal Act 2008 (ACT)
Health Act 1993 (ACT)
Health Practitioner Regulation National Law 2012 (ACT)
Supreme Court Act 1933 (ACT)
Supreme Court Act 1970 (NSW)
Judicial Review of Administrative Action (Lawbook Co., 5th Ed, 2013)
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
ASIC v Stone Assets Pty Ltd [2012] FCA 630; (2012) 205 FCR 120
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Australia and New Zealand Banking Group Limited v Manny & Ors [2013] ACTSC 116 (12 June 2013)
Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1988) 194 CLR 247
Corporate Affairs Commission v Transphere Pty Ltd (1988) 15 NSWLR 596
Crane v Gething [2000] FCA 45; (2000) 97 FCR 9
Dibeek Holdings Pty Ltd v Notari (1997) 141 FLR 364
Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243.
Director General Department of Trade and Investment Regional Infrastructure and Services v Lewis [2012] NSWCA 436; (2012) 301 ALR 420
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Duncan v Ipp [2013] NSWCA 189; (2013) 304 ALR 359
Edner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Evans v Shiels [2004] ACTSC 19; (2004) 185 FLR 1
Faull v Commissioner for Housing ACT and Residential Tenancies Tribunal [2013] ACTSC 121; (2013) 277 FLR 61
Forster v Jododex [1972] HCA 61; (1972) 127 CLR 421
Garde-Wilson v Corrs Chambers Westgarth and Anor [2007] VSC 235; (2007) 27 VAR 271
Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435
Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378
Inglis v Moore (1979) 24 ALR 411
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 50-51
Jarratt v Commissioner of Police [2005] HCA 50; (2005) 224 CLR 44
Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 (12 December 2012)
Manly Council v Byrne and Anor [2004] NSWCA (9 June 2004)
McGovern v Kuring gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Momcilovic v The Queen (2011) 245 CLR 1
NCSC v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296
Prescott v Legal Practitioners Disciplinary Tribunal [2009] SASC 309
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389
R v Federal Court of Australia; Ex parte WA National Football League (1979) 190 CLR 142
Russell v Duke of Norfolk [1949] 1 All ER 109
Schulman v Abbott Tout Lawyers (No 2) [2010] FCA 526 (17 May 2010)
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Shop, Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552
Sleiman v Murray [2009] ACTSC 82; (2009) 231 FLR 224
Spencer v Bamber [2012] NSWCA 274 (5 September 2012)
Stollery v Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509
Taylor v The Medical Board of South Australia [2010] SASC 308 (9 November 2010)
Tuch v Eastern Sydney and Illawarra Area Health Service [2009] NSWSC 1207 (12 November 2009)
1. The plaintiff (Dr Hocking) is an orthopaedic surgeon employed at the Canberra Hospital (Hospital). He seeks judicial review, including review of a decision of the ACT Medical Board (Board) to suspend his registration as a medical practitioner.
2. The Board is the first defendant. The Medical Board of Australia has delegated its functions in the Australian Capital Territory to the Board, including the function of considering disciplinary complaints against medical practitioners. Pending full investigation of a complaint against a medical practitioner, in a serious case the Board may take "immediate action" by imposing conditions or suspending the practitioner's registration.
3. The second defendant is Dr Griffin, a medical practitioner who notified a complaint against Dr Hocking.
4. Since 2011, a number of complaints against Dr Hocking have been notified to the Australian Health Practitioner Regulation Agency (AHPRA), a body established under the Health Practitioner Regulation National Law 2012 (ACT) (National Law). AHPRA undertakes preliminary assessments and investigations on behalf of the Board. Mr Logan is the Director of Notifications (ACT) at AHPRA.
5. Some of the complaints against Dr Hocking were made by Professor Paul Smith, the Head of the Orthopaedic Unit at the Hospital.
6. Dr McKenzie is a medical practitioner who chaired the Board when it considered the notifications concerning Dr Hocking.
7. In these proceedings, reference has been made to the following seven notifications against Dr Hocking that were received by the Board.
These notifications (the 2011 Notifications) lead to the imposition of conditions 1-6 on Dr Hocking's registration from 21 June 2012 to 16 April 2013, when they were replaced by new conditions 1-3.
As a result, conditions 7-12 were imposed on Dr Hocking's registration, from 3 September 2012 to 4 March 2013, when the conditions were removed.
On 18 April 2013, Dr Ashman received a complaint from Professor Smith dated 14 April 2013 concerning patient A (Ashman Complaint). That document was not submitted to the Board.
8. On 26 April 2013, the Board suspended Dr Hocking's registration pursuant to s 156(1) (a) of the National Law (the suspension decision). Dr Griffin appealed to the ACT Civil and Administrative Tribunal (the ACAT). Pursuant to s 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) and s 199 (1) of the National Law, the ACAT is empowered to review certain decisions of the Board and to substitute its own decisions.
9. In summary, in a second amended originating application filed on 30 October 2013 Dr Hocking makes the following applications.
11. At the commencement of the proceedings, Dr Hocking abandoned an application for an order in the nature of certiorari quashing the Board's suspension decision. By doing so, Dr Hocking maintained the subject matter of the ACAT merits appeal.
12. The way in which Dr Hocking argued his case changed during the hearing. Having regard to the way in which the case was ultimately argued, the following issues are to be determined.
13. On 24 March 2011, Dr Solomon and six other doctors at Sydney Children's Hospital notified AHPRA of the First Solomon Notification, which concerned Dr Hocking's treatment of an 18-month-old baby and an adolescent with Perthes disease. The notifiers noted that "the treatment of adolescent Perthes disease is difficult." They expressed concern in relation to the clinical judgment, surgical skills and management practices of Dr Hocking.
14. On 12 April 2011, Associate Professor Smith notified AHPRA of the Smith Notification, which primarily concerned one patient, and referred to a second patient.
15. On 19 April 2011, the Board met to consider both notifications. The Board directed AHPRA to issue a notice to Dr Hocking, inviting him to show cause as to why the Board should not take "immediate action" under s 156 of the National Law to suspend his registration. On 20 April 2011, Dr Hocking's solicitors asked for an adjournment of the proceedings so that Dr Hocking could properly put his case. The Board agreed to adjourn the proceedings to 2 May 2011.
16. On 21 April 2011, Dr Hocking volunteered to the Board that he would undertake to refrain from performing open hip or pelvic surgery pending the completion of the AHPRA investigation.
17. On 2 May 2011, the Board met to consider whether "immediate action" should be taken. Dr Hocking says that certain "points of consideration" that are noted in the minutes of the Board meeting were not put to him, including an alleged difficulty on his part in relating to professional colleagues and inadequate follow-up of patients. Initially, the Board was minded to impose a condition on registration that, pending the completion of the formal AHPRA investigation, Dr Hocking undertake no elective adult or paediatric open hip surgery and involve a senior colleague when managing trauma surgery involving major pelvic injury. However, on 5 May 2011 the Board agreed that an appropriate form of "immediate action" was the acceptance of an undertaking in those terms.
18. On 3 August 2011, AHPRA asked Dr Hocking to provide copies of the medical records of relevant patients mentioned in the First Solomon Notification and the Smith Notification, but there was no response. In September 2011, Dr Hocking asked the Board to agree to the revocation or amendment of the terms of his undertaking, but the Board declined to do so as it was not satisfied that the risk posed by Dr Hocking had diminished. In October 2011, the Board engaged Dr Fraser to conduct a peer review of Dr Hocking's treatment of certain patients. On 7 November 2011, Dr Fraser provided a report to the Board. As a result of additional medical reports becoming available, Dr Fraser provided a supplementary report on 15 December 2011. Dr Fraser concluded that there was an issue of public safety.
19. A copy of Dr Fraser's report was provided to Dr Hocking's legal representatives. Dr Marel prepared a report on behalf of Dr Hocking, in which he disagreed with some aspects of Dr Fraser's analysis but concluded that "there have been too many complications" in relation to Dr Hocking's treatment of patients. Dr Marel accepted that Dr Hocking may need supervision and retraining. Dr Marel's report was provided to AHPRA on 22 March 2012.
20. On 18 April 2012, the Board met and considered the reports of Drs Fraser and Marel. The Board decided that it was necessary to impose conditions on Dr Hocking's registration. A notice of proposed action was sent to Dr Hocking. Dr Hocking made written submissions in response.
21. On 21 June 2012, the Board decided to impose conditions 1-6. Dr Hocking was notified. The conditions limited the surgery that Dr Hocking could undertake and required that he be mentored and retrained.
22. Thereafter, there was correspondence between the Board and Dr Hocking in relation to the acceptable manner of compliance with the conditions. Dr Hocking requested that retraining in the areas of adult and paediatric surgery be undertaken by a Dr McNicol, a semi-retired surgeon from whom Dr Hocking had bought his practice. The Board declined the request, preferring a trainer who was actively engaged in the professional field, was regularly involved in training surgeons in the field, and who maintained a current practice in the field.
23. In July 2011 Dr McLaren (a rehabilitation specialist) complained about the conduct of Associate Professor Smith towards Dr Hocking. Dr McLaren expressed the beliefs that Associate Professor Smith was compiling clinical data to be used against Dr Hocking in possible breach of patient confidentiality, that Professor Smith was acting for an ulterior motive, and that an adverse outcome for one patient was primarily due to the incompetence of a Dr Stubbs rather than any fault on the part of Dr Hocking.
24. In evidence, Dr Hocking said that he did not ask Dr McLaren to make the complaint. However, he did discuss with Dr McLaren the notifications that had been made against him. Except in the case of one patient, Dr McLaren's knowledge of the subject matter of the notifications came from discussions with Dr Hocking.
25. When making the notification against Associate Professor Smith, Dr McLaren asked that his identity not be disclosed and that the notification not be forwarded to Associate Professor Smith. The Board did not forward the notification. Instead, the Board wrote to Associate Professor Smith. However, the letter raised only the matter of Dr Stubbs' competence. Associate Professor Smith responded to that matter. The investigator's report noted the limited content of Associate Professor Smith's response. Neither Dr McLaren nor Dr Hocking was interviewed in relation to the subject matter of the notification.
26. On 30 November 2011, the Board determined to take no further action as it considered that the notification related to anti-competitive behaviour rather than to performance and professional standards. In July 2012, the Board advised Dr McLaren that the Stubbs investigation was complete and it proposed to take no further action.
27. In about November 2011, Dr McLaren met with Mr Logan of AHPRA to discuss Dr McLaren's complaint. Dr McLaren gave evidence that, during the meeting, Mr Logan stated that "we" agreed that Professor Smith had treated Dr Hocking improperly. Mr Logan disputed that assertion. Given the lapse of time since the meeting and the subsequent conduct of the Board (which was inconsistent with a view that Dr Hocking had been treated improperly), I am not satisfied that Dr McLaren's recollection of the meeting is accurate.
The Second Solomon Notification and the imposition of conditions 7-12
28. On 9 July 2012, Dr Solomon notified the Second Solomon Notification to both AHPRA and the Hospital's Clinical Practices Committee (the CPC), an approved public sector scope of clinical practice committee constituted under s 56 of the Health Act. That Notification concerned Dr Hocking performing a hip arthroscopy on 15 February 2012. Dr Hocking had referred the relevant patient to Associate Professor Smith, who had referred him to Dr Solomon.
29. The CPC conducted an inquiry into the complaint and proposed that Dr Hocking accept certain restrictions on his practice. Dr Hocking agreed to the restrictions.
30. On 23 August 2012, the Board decided that it should take "immediate action" in relation to the Notification. The Board expressed concern about a "pattern of behaviour". On 27 August 2012, Dr Hocking's solicitors advised the Board that the CPC had decided to place conditions on Dr Hocking's practice and submitted that, in light of the CPC conditions, the Board should take no action. On 28 August the Board gave Dr Hocking notice that he should show cause as to why he should not be subjected to "immediate action" in the form of a condition preventing him from performing unsupervised adult or paediatric surgery.
31. The Board met on 4 September 2012, and decided that, in addition to conditions 1 - 6, it should impose conditions 7 - 12 on Dr Hocking's registration as a form of "immediate action". The Board was aware that the previous restrictions on Dr Hocking's practice did not preclude the performance of the hip arthroscopy procedure that was undertaken on the patient the subject of the Second Solomon Notification. The Board's minutes note that the Board was concerned about Dr Hocking's apparent lack of insight, technical competence and decision-making abilities. As conditions 7-12 required that surgery by Dr Hocking be supervised and required that Dr Hocking undertake forty hours per week of training, the effect of the new conditions was to prevent him from practising.
32. On 11 September 2012, Dr Hocking sought a review by the ACAT of the Board's decision, complaining that he had been denied procedural fairness.
33. Dr Hocking applied to the Supreme Court for a stay of conditions 1-7. On 12 September 2012, the Court ordered a stay, subject to Dr Hocking undertaking that he would not perform certain surgery on children and would pursue certain retraining.
34. On 22 November 2011, the Board asked Associate Professor Cundy to provide a report in relation to Dr Hocking's treatment of the patient the subject of the Second Solomon Notification. Associate Professor Cundy provided a report dated 7 December 2012, which was received by AHPRA on 25 January 2013.
35. On 6 February 2013, the Board received progress reports from the practitioners who had been supervising or mentoring Dr Hocking. They recommended the removal of conditions 1 - 6. On 28 February 2013, the Board met to conduct a review of those conditions. It was proposed that conditions 1 - 6 be replaced by three new conditions. On 1 March 2013, Dr Hocking was advised that the Board would meet on 16 April 2013, when he could make submissions about proposed new conditions 1- 3.
36. On 16 April 2013, the Board met to review conditions 1 - 6 and to determine whether they should be replaced with new conditions 1 - 3. Dr Hocking and his legal representatives attended the meeting. Dr Hocking's legal representatives requested that Dr McKenzie recuse himself on the basis that he had a conflict of interest because he was the notifier of the First McKenzie Notification. In the absence of Dr McKenzie, the other Board members decided that such action was not necessary as Dr McKenzie was merely the conduit of the First McKenzie Notification. The Board decided to replace conditions 1- 6 with new conditions 1- 3. Unfortunately, it was not until 8 May 2013 that this decision was conveyed to Dr Hocking. In the intervening period, on 24 April 2013, the Board decided to take "immediate action" in relation to the Griffin Notification.
37. In the ACAT proceedings concerning conditions 7-12, on 8 February 2013 Dr Hocking filed a statement of facts and contentions. On 11 February 2013, the ACAT set aside subpoenas issued at the request of Dr Hocking on individual Board members, and narrowed the scope of documents to be produced by AHPRA. On 19 February 2013, Dr Hocking served substantial further material. On 21 February 2013, the ACAT granted the Board's application for an adjournment of the review. The review hearing was fixed for 18 March 2013.
38. On 4 March 2013 the Board met to consider the AHPRA investigation in relation to the patient the subject of the Second Solomon Notification and decided to revoke conditions 7 - 12.
39. On 25 March 2013, Dr Hocking discontinued the ACAT appeal.
40. On 22 August 2013, the Board referred the matter to a performance and professional standards panel. The panel heard the matter on 18 October 2013 and reserved its decision.
41. On 13 March 2013 Dr McKenzie (the Acting Chair of the Board) notified AHPRA of a complaint dated 24 February 2013 in relation to six patients that had been placed anonymously in his mailbox (the First McKenzie Notification). On 14 March, Dr Hocking was advised of the Notification. He was told that a preliminary assessment would be undertaken.
42. On 19 March 2013, Associate Professor Smith made a further notification in relation to Dr Hocking. The notification was not brought the attention of Dr Hocking. The matter is yet to be considered by the Board.
The Second McKenzie Notification and the Board Meeting of 16 April 2013
43. On 8 April 2013, Dr Hocking administered platelet rich plasma (PRP) to a nine-year-old patient (Patient A).
44. On 16 April 2013, Dr McKenzie lodged with AHPRA the Second McKenzie Notification, a document dated 14 April 2013, that purports to emanate from "a medical practitioner in the ACT". It concerned sixteen patients, including Patient A. Some of the patients named in the Second McKenzie Notification had been the subject of an earlier notification.
45. On 16 April 2013, the Board considered whether Dr McKenzie had a conflict of interest in relation to the Second McKenzie Notification, and decided that he did not. Dr McKenzie did not participate in the discussions.
46. It was not until 19 July 2013 that Dr Hocking was advised of the Second McKenzie Notification.
The Griffin Notification and the Ashman Complaint
48. First, he was the Acting Medical Administrator of the Hospital's CPC. In that capacity, he coordinated and managed the CPC but did not participate in its decisions.
49. Second, he was the Acting Director of the Medical and Dental Professional Standards Unit (the MDPSU), a body that was involved in the appointment and credentialing of senior medical staff in ACT public healthcare facilities. The MDPSU sat outside the organisational structure of the Hospital, reporting to the ACT Health Directorate. The MDPSU also provided administrative support to the CPC. Complaints came to the MDPSU from Executive and Clinical Directors of operational areas within the Hospital. Where a complaint was referred to the Director, there was a preliminary assessment to determine the manner in which the complaint should be dealt with. The Director had a "gatekeeper" role in deciding the place to which a complaint should be referred; whether to a CPC, the Board or both.
50. In his roles as the Acting Director of the MDPSU and Acting Medical Administrator of the CPC, Dr Griffin was responsible for evaluating complaints and, if warranted, referring them to a CPC and constituting the CPC comprising appropriate members.
51. The third position held by Dr Griffin was Locum Executive Director of Medical Services at the Hospital, a role that entailed professional oversight of medical services provided by the Hospital.
52. On 18 April 2013, Dr Griffin received a letter dated 17 April about Dr Hocking's treatment of Patient A, the nine year old child who had received PRP for Perthes disease (the subject of the Griffin Notification). The text of that letter is Annexure 1 to these reasons.
53. On 18 April, Dr Ashman, the Clinical Director of Orthopaedics at the Hospital (who was not a member of the CPC but was a member of the Hospital's clinical review committee), received a complaint concerning Patient A in apparently identical terms to the Griffin Notification, except that it was addressed "Dear Bryan". It was authored by Associate Professor Smith. Dr Ashman met with Dr Griffin and Ms Reid, the Executive Director of Surgery, Oral Health and Medical Imaging at the Hospital. Dr Ashman told Dr Griffin and Ms Reid about the letter that he had received. He said that the complaint concerned Dr Hocking. In evidence, Dr Ashman recalled that, at the meeting, he showed the letter to Dr Griffin and Ms Reid and observed Ms Reid to read the letter. Ms Reid did not recall seeing the letter and she was unaware of the identity of the complainant. I find that, if Ms Reid did see the letter, she saw it only briefly and did not absorb the identity of the author. Dr Griffin said that he perused the letter and ascertained that it appeared to be substantially the same as the document that he had received. Dr Griffin did not disclose that he had received a similar letter. At the meeting, it was agreed that Dr Griffin would discuss the Ashman Complaint with Mr Ian Thompson, the Director General, ACT Health Services.
54. It was not until recently that Dr Hocking became aware of the Ashman Complaint.
55. Dr Griffin met with Mr Thompson. According to Dr Griffin, it was agreed that he should notify the Board. Mr Thompson recalled that there was a discussion about the matter being referred to a CPC, but he could not recall a discussion about referral to the Board.
56. After meeting with Mr Thompson, Dr Griffin made enquiries about PRP and ascertained that PRP transfusions for Perthes disease were not provided by the Hospital's blood transfusion service and were considered to be an experimental procedure. He then met with Professor Chong, the Chair of the CPC, and advised him of the complaint. Dr Griffin said that the Board would be notified of the complaint.
57. Following the meeting with Dr Chong, on 18 April Dr Griffin contacted a Dr Bradbury of the Board by telephone and told her about the complaint. She said that she would accept the notification of behalf of the Board. Under s 146 of the National Law, a notification may be made verbally, including by telephone.
58. Dr Griffin blacked out the names of the complainant and Dr Hocking for the stated purpose of protecting the identity of the complainant and the privacy of the patient. In evidence, Dr Griffin said that, if he received a complaint that was to go to the CPC, it was his practise to anonymise the complaint to protect the identity of complainants who were employed within the Hospital and to protect the confidentiality of patients.
59. On 18 April 2013, under the signature block "A/Executive Director Medical Services The Canberra Hospital and Health Services", Dr Griffin forwarded the anonymised complaint to Mr Logan at AHPRA.
60. On 19 April 2013, the Board met as a matter of urgency to consider the anonymised Griffin Notification. According to Mr Logan, the Board considered the Griffin notification to be a mandatory notification within the meaning of s 141 of the National Law. Prior to the meeting, at least one Board member had researched the use of PRP. At the meeting, the Board decided that it should take the "immediate action" of suspending Dr Hocking's registration.
61. On 22 April, Dr Hocking was advised that he should "show cause" at a meeting of the Board on 24 April 2013 as to why his registration should not be suspended.
62. Dr Hocking and his legal representatives attended the meeting. During the meeting, Dr Hocking's legal representatives adverted to the fact that the proceedings had been brought on at short notice, but made no other complaint. Dr Hocking presented material to the Board. Dr McKenzie chaired the meeting. He did not disclose to the Board or Dr Hocking that he had received the Second McKenzie Notification. The Board decided to suspend the registration of Dr Hocking with effect from 26 April. The minutes state that, in the context that there were conditions attaching to Dr Hocking's registration and "recent serious reports" about his conduct, it was considered necessary to suspend his registration because the procedure about which complaint was made had no demonstrated therapeutic benefit and was not an approved procedure.
63. A decision to take the "immediate action" of suspending a practitioner's registration continues to have effect until the decision is set aside on appeal or the suspension is revoked by the Board.[1]: s 159 National Law.
64. On 3 May 2013, Dr Hocking appealed to the ACAT to review the Board's suspension decision. Inter alia, Dr Hocking complained of denial of procedural fairness, conflict of interest and bias on the part of the Board.
65. On 6 May 2013, the ACAT stayed the suspension of Dr Hocking's registration on the condition that Dr Hocking was not to perform elective paediatric surgery. On 19 July, the Supreme Court continued the conditional stay.
66. On 8 May 2013, the Board imposed one new condition on the registration of Dr Hocking; that he would undertake no unsupervised elective open hip or pelvic surgery apart from routine primary adult hip replacement. That condition continues.
67. Prior to the ACAT hearing the matter on the merits, on 5 June 2013 Dr Hocking applied to the ACAT for an order that the ACAT had no jurisdiction to determine whether the notification to the Board was invalid under the Health Act. The ACAT determined that it had no jurisdiction to decide the lawfulness of the Griffin Notification or to determine whether the Board had erred in considering an invalid notification.
68. Dr Hocking then commenced these proceedings by filing an application seeking declarations and orders in the nature of certiorari and prohibition.
69. On 2 August 2013, Dr Hocking's solicitors wrote to AHPRA complaining that the Board as currently constituted should not consider the Second McKenzie Notification because of actual or apprehended bias associated with the fact that Dr McKenzie had a conflict of interest.
70. In September 2013, the ACAT conducted a merits review of the suspension decision and reserved its decision. In these proceedings, Dr Hocking conceded that the proceedings before the ACAT fully explored the merits of his use of PRP.
71. The text of the relevant provisions of the National Law is set out in Annexure 2 to these reasons.
72. The National Law has been adopted (with variations) in a number of Australian jurisdictions, including the ACT.
73. Inter alia, the National Law aims to establish a national registration and accreditation scheme for the regulation of health practitioners.[2] One of the objectives of the scheme is to protect the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.[3] Another objective is to facilitate access to services provided by health practitioners in accordance with the public interest.[4] The guiding principles of the national registration and accreditation scheme include the principle that "the scheme is to operate in a transparent, accountable, efficient, effective and fair way" and the objective that restrictions on the practice of the health profession are to be imposed "only if it is necessary to ensure that health services are provided safely and are of an appropriate quality".[5] Schedule 7 Part 2 cl 7 of the National Law provides that, when interpreting a provision of the National Law, the interpretation that will best achieve the purpose or object of the National Law is to be preferred.
74. The National Law binds statutory corporations and other entities representing the Crown in the relevant jurisdiction.[6] Section 4 provides that an entity that has a function under the National Law is to exercise the function having regard to the objectives and guiding principles.
75. AHPRA is established under Part 4 of the National Law. Section 23(2)(a) provides that it is a body corporate. Its functions include providing administrative assistance and support to the National Boards and the Boards' committees in exercising their functions, and establishing an efficient procedure for receiving and dealing with notifications.[7]
76. Under Part 5, National Boards are established for various health professions. The Medical Board of Australia is established as the National Board for the medical profession under s 31(1). A National Board is a body corporate.[8] A National Board has no power to employ staff.[9] Schedule 4 applies to a National Board. Schedule 4 cl 7 provides that a member of a National Board is to act impartially. Accordingly, a member is to put the public interest before the interests of particular health practitioners.
77. The functions of a National Board include the establishment of panels to conduct hearings about health, performance and professional standards matters, and the monitoring of conditions, undertakings and suspensions imposed on the registration of practitioners.[10] The functions of a National Board do not include receiving notifications.[11]
78. A National Board may establish a committee for a participating jurisdiction (including a Territory Board) and delegate any of its functions (other than the power of delegation) to such a committee or to AHPRA.[12]. AHPRA may sub-delegate any function to a staff member under s 37(2).
79. Part 8 of the National Law (ss 138 - 207) concerns the health, performance and conduct of practitioners. Division 2 (ss 140 - 143) relates to mandatory notification by registered health practitioners and employers. If "in the course of practising (his or her) profession (a practitioner) forms a reasonable belief" that another practitioner has behaved in a way that constitutes "notifiable conduct", then the practitioner must, as soon as practicable, notify AHPRA.[13] "Notifiable conduct" is defined by reference to four matters: intoxication, sexual misconduct, impairment causing risk of substantial harm, and significant departure from accepted professional standards placing the public at risk of harm.[14] Division 3 (ss 144 - 145) relates to voluntary notifications to AHPRA. Any "entity" (which includes an individual) may make a voluntary notification.[15] A voluntary notification may be made upon grounds that are much broader than the "notifiable conduct" grounds. They include, for example, the ground that the practitioner's professional conduct "may be of a lesser standard that which might reasonably be expected ...".[16]
80. Section 146 provides that a notification may be made to AHPRA either verbally or in writing, and it must include particulars. Under s 148, AHPRA must, "as soon as practicable after receiving a notification", refer the notification to the Board.
81. Within 60 days of receiving notification, a Board must conduct a preliminary assessment of the notification. Under s 149 the assessment is a preliminary filtering process that involves, inter alia, deciding whether the notification relates to a matter that is a ground for notification.
82. Section 150 (4A) sets out the action that may be taken by a Board in relation to a notification, the most serious action being "immediate action" and the least serious action being a decision to take no further action. Section 151 sets out the circumstances in which a Board may decide to take no further action, including, for example, the circumstance that the notification is considered to be frivolous or vexatious. Pursuant to s 151(2), a decision by the Board to take no further action does not prevent the Board taking the notification into consideration at a later time "as part of a pattern of conduct or practice by the health practitioner".
83. Under s 156, a Board may take "immediate action" if the Board "reasonably believes" that the practitioner's conduct "poses a serious risk to persons" and "it is necessary to take immediate action to protect public health or safety". Pursuant to s 155 "immediate action" is defined to include suspension of registration or imposition of a condition of registration (the most serious forms of immediate action), the acceptance of an undertaking and the acceptance of the surrender of the practitioner's registration. Under s 157, before taking the most serious forms of immediate action (suspension or the imposition of a condition) the Board must engage in a "show cause process". An "immediate action" decision continues to have an effect until the decision is set aside on appeal or (in the case of suspension or the imposition of conditions) the suspension is revoked or the conditions are removed by the Board.[17]
84. Part 8 Division 8 (ss 160 - 162) deals with investigations. Having received a notification about a practitioner, a Board may investigate the practitioner "if it decides it is necessary or appropriate to do so".[18] A Board initiates an investigation by directing an appropriate investigator to conduct the investigation.[19] A Board may appoint as an investigator a member of AHPRA or a contractor engaged by AHPRA.[20] If a Board decides to investigate a practitioner, it must give the practitioner written notice as soon as practicable.[21] It must notify the practitioner of the progress of the investigation at three monthly intervals.[22] The investigation is to be conducted in a timely way.[23] An investigator is required to provide the relevant Board with a written report "as soon as practicable after an investigation".[24]
85. Part 8 Division 10 deals with the actions that make taken by a Board if the Board reasonably believes, because of a notification or for any other reason, that a registered health practitioner has engaged in unsatisfactory professional conduct, is impaired, has been charged or convicted of serious offence or may have contravened a registration condition. Division 11 concerns the establishment of health panels (to deal with questions of impairment) and the establishment of performance and professional standards panels (to deal with cases of unsatisfactory conduct). Division 12 concerns the referral of serious disciplinary matters by a Board to the responsible tribunal. A practitioner who is the subject of a hearing before a panel may require that the matter be referred to the responsible tribunal.
Does Dr Hocking have standing to obtain declarations and prohibition?
86. Superior courts such as this Court have inherent power to grant declaratory relief.[25]
87. The Court has jurisdiction to grant prohibition.[2] Section 20(1)(a) of the Supreme Court Act provides that the Court has "all original and appellate jurisdiction that is necessary to administer justice in the Territory". Section 34B of the SCA provides that the Supreme Court has power to grant any relief by way of prerogative order, including relief by way of an order in the nature of prohibition or certiorari. Rule 3554 of the Civil Procedure Rules 2006 (ACT) (CPR) provides that:
(1) If, before the commencement of these rules, the court had jurisdiction to grant any relief by way of a writ of mandamus, prohibition or certiorari, or on an information in the nature of quo warranto , the court continues to have jurisdiction to grant the relief.
(2) However, the court may grant the relief only by making an order under these rules in the nature of, and to the same effect as, the relief that would have been available before the commencement of these rules.
88. Rule 3556(3) of the CPR provides a broad statutory test for standing:
A person may apply for prerogative relief if the person's interests are, or would be, adversely affected in or by the matter to which the application relates.
89. In relation to the Board's decision regarding the Griffin Notification, Dr Hocking has standing to seek an order in the nature of prohibition because his livelihood has been adversely affected by the "immediate action" of suspension.
90. In these proceedings, the Board noted inconsistencies between the relief claimed in Dr Hocking's originating application and what he sought at the hearing. However, the Court is not bound to make or fashion its orders in strict accordance with what is proposed in an originating application.[26] The Court may grant the relief that it considers to be the most appropriate relief, even if it is not included in the originating application.[27]
91. The Court's jurisdiction to grant prerogative relief is not boundless. In conferring upon the Court "all original and appellate jurisdiction that it is necessary to administer justice in the Territory", s 20 (1) (a) of the SCA did not intend to create an "at large" jurisdiction to rectify any prospective "injustice" that may occur within the ACT. It intended to confer a jurisdiction similar to that conferred on the Supreme Court of New South Wales by s 23 of the Supreme Court Act 1970 (NSW). The power to make an order must be referrable to an identified legal or equitable right: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited.[28] See also Evans v Shiels,[29] Sleiman v Murray,[30] Faull v Commissioner for Housing ACT and Residential Tenancies Tribunal.[31] The Court's supervisory jurisdiction does not extend beyond "the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power."[32]
Declarations in relation to the Griffin Notification
92. In summary, the plaintiff seeks two declarations in relation to the Griffin Notification. The first is that the Board should not have acted upon the notification as it divulged protected information in contravention of s 125(1) (a). The second is that the Griffin Notification was not a mandatory notification within the National Law.
93. The primary purpose of a declaration is to determine rights between parties which are not merely of academic interest or hypothetical, or whose resolution would be of no practical utility.[33] Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.[34] A declaration will not be made when it is merely hypothetical and does not affect substantive rights.[35] In Ainsworth v Criminal Justice Commission ("Ainsworth"), the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ summarised the criteria guiding a grant of declaration as follows:
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties".[36] (emphasis added) (citations omitted).
94. Dr Hocking relies upon Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd.[37] In that case, the respondent businesses provided services to members of an Aboriginal community. The appellants were statutory bodies that proposed to conduct competing businesses in a limited market. The respondents contended that the proposed conduct of the competing businesses was unlawful because it was beyond the statutory powers of the appellants. The High Court determined that the respondents had a sufficient "special interest" to seek equitable relief by way of injunction to prevent apprehended economic loss. Referring to the High Court decision in Shop, Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) Gaudron, Gummow and Kirby JJ affirmed that the nature and subject matter of litigation will dictate what amounts to a "special interest".[38]
95. The defendants argue that Dr Hocking lacks standing to seek a declaration in relation to the Griffin Notification. The defendants argue that, as the case was originally argued (when Dr Hocking sought certiorari in relation to the allegedly unlawful Griffin Notification), Dr Hocking may have had a "special interest in the subject matter of the proceedings" according him the standing to seek a declaration as a step in establishing an entitlement to prerogative relief. However, as Dr Hocking has abandoned the claim for certiorari, and merely maintains that a declaration should be made in the "public interest", he lacks the "special interest" necessary to give him standing to obtain a declaration in relation to unlawful conduct.
96. Dr Hocking says that there remains a "public interest" in making the declaration concerning the Griffin Notification. For example, in relation to future notifications, it would be helpful for members of CPCs to know their statutory responsibilities to keep information confidential and for members of the Board to know that they needed to make enquiries about the provenance of notifications.
97. The "public interest" argument does not confer standing on Dr Hocking as it does not demonstrate that Dr Hocking has a "special interest" in the matter above that of an ordinary member of the public.
98. Dr Hocking also maintains that a declaration should be granted to support the grant of an order in the nature of prohibition against the Board's further use of the Griffin Notification.
99. Dr Hocking does have an interest in whether or not the Board is prohibited from relying on the Griffin Notification in relation to future decisions. It is unnecessary to decide whether this interest is sufficient to grant Dr Hocking standing to seek a declaration, as the Court in its discretion would decline to grant the declarations for the reasons outlined below.
Discretionary considerations in favour of refusing relief by way of orders in the nature of prohibition and declarations
100. Regardless of the merits of the substantive arguments, in its discretion the Court would decline to make an order in the nature of prohibition that the Board take no further action in relation to the Griffin Notification.
101. The Board's decision to suspend Dr Hocking is the subject of the ACAT proceedings. The existence of the merits review proceedings in the ACAT and the fact that those proceedings have been heard and reserved are important considerations in relation to the Court's general discretion to grant or refuse the relief sought.
102. In the exercise of discretion, a court may decline to grant relief if a more convenient and satisfactory remedy exists or no useful result could ensue: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd.[39] It is usually inappropriate to allow the maintenance of two parallel streams of litigation that relate to the same dispute.[40]
103. Justice Gibbs (as he then was) in the majority of the High Court in R v Federal Court of Australia; Ex parte WA National Football League discussed the relevance of timing in an application for prohibition:
[P]rohibition is discretionary (at least where lack of jurisdiction is not patent) and in some cases it would be convenient to defer the hearing of an application for prohibition until further proceedings had been taken in the tribunal against which prohibition was sought. This might be because a decision in favour of one party would render academic the question whether prohibition should be granted, or because it would assist [the High Court] in discharging its ultimate responsibility if evidence were taken in the tribunal below. Those examples are not intended to be exclusive.[41]
104. Dr Hocking abandoned the application to quash the suspension decision, ensuring that the decision remains alive and subject to review by the ACAT. The merits of using PRP in the context of treating Perthes disease have been fully explored in the ACAT proceedings. For the purposes of the appeal, under s 202 National Law the ACAT acts as if it was the Board, hears the evidence afresh, and exercises the Board's powers in reaching a new decision on the merits.[42] The decision of the ACAT will supersede the suspension decision of the Board that is under review. It is the ACAT, not the Board that will decide whether Dr Hocking is to be suspended from practising medicine. The ACAT decision is internally reviewable under ss 79 and 82 and can be referred to or appealed to this Court under ss 83, 84 and 86. Had he succeeded in his pursuit of certiorari, the legal effect of the suspension decision would have been quashed or nullified.[43]
105. In some cases, complaints by Dr Hocking to the Board that it was biased or had failed to accord a fair hearing were met with refusal, but Dr Hocking did not exercise his right to seek a review of the decision. Other decisions of the Board were challenged in the ACAT or Supreme Court, but the proceedings were not pursued to finality. Dr Hocking is seeking to re-agitate issues that have been the subject of earlier proceedings that Dr Hocking has chosen to abandon.
106. Another issue that has arisen in the case is whether or not it is within the Court's supervisory jurisdiction to grant an order of prohibition in circumstances such as the present, where prohibition would prevent the Board (as presently constituted) from taking action against Dr Hocking in relation to matters that are not currently before the Board. The prohibition that is sought by Dr Hocking is "anticipatory" or "pre-emptive" in nature as the proposed order would not only prevent further action being taken in relation to a past decision, but would extend to preventing the Board from acting in relation to future matters.[44]
107. The Court declines to consider the breadth of the Court's jurisdiction to grant "anticipatory" or "pre-emptive" prohibition as the remedy of prohibition is refused for the reasons below.
108. The fact that the relief sought by Dr Hocking is pre-emptive in nature goes to the Court's discretion to grant the relief. Assuming, but not deciding that the Court has jurisdiction to grant such relief, the authorities suggest that, when an order in the nature of prohibition is sought in relation to future conduct, there must be more than a risk of procedural unfairness, there must be a strong probability that procedural unfairness will result.[45] The case of Director-General, Department of Trade & Investment, Regional Infrastructure and Services v Lewis concerned injunctions, but Sackville J drew on the law in relation to prohibition.[46] Dr Hocking argued that there is a very real probability that the Board would exercise its functions in a way that amounted to jurisdictional error, but it is not necessary to consider this submission for the reasons set out at paragraphs [234]-[237] below.
109. In relation to the declarations sought by Dr Hocking, to the extent that declarations are sought in support of orders for prohibition, the reasons for refusing the orders of prohibition are reasons that the Court would, in its discretion, refuse to grant the declarations.
110. There is a further basis upon which the Court would refuse to issue the declaration sought by Dr Hocking that the Board should not have acted upon the Griffin Notification as it divulged protected information in contravention of s 125(1)(a) of the Health Act.
111. Section 125 of the Health Act creates an offence of divulging protected information.
112. There is strong authority that courts should be reluctant to issue injunctions or declarations in civil suits that have the effect of enforcing a criminal statute. The seminal decision is Gouriet v Union of Post Office Workers, in which the House of Lords declined to issue a declaration that a proposed strike would be in breach of the criminal law, making several statements about the exceptional nature of granting such relief.[47]
113. In Inglis v Moore, St John J stated in relation to such civil suits that:
What, in effect, would happen if such an application were allowed to proceed would be that a defendant in civil proceedings would be found to have committed a crime without having the various advantages which are afforded him in a criminal trial. To mention some of those advantages there is the onus of proof which would not be so stringent in civil proceedings, the compellability of witnesses would be different, no committal proceedings would be available to test the strength of the case against him and certain procedural advantages such as the availability of a statement from the dock would be denied him. [48]
114. In Crane v Gething, French J (as His Honour then was) considered the principles involved in making declarations of criminal conduct in civil proceedings. His Honour said that:
attempts to establish by declaration, other than upon the application of the Attorney General or statutory regulators, that past conduct amounts to a criminal offence have been given short shrift.[49]
115. The principal qualification to the law as articulated in Gouriet concerns statutory regulators who, as an alternative to a criminal prosecution or an action for a civil remedy, may seek a declaration, either expressly or by implication employing the standing traditionally granted to the Attorney General: e.g. Corporate Affairs Commission v Transphere Pty Ltd;[50] ASIC v Stone Assets Pty Ltd.[51]
116. Dr Hocking argues that cases such as Gouriet are of no relevance as the declaration being sought will have no effect on Dr Griffin because of the operation of s 237 of the National Law. Section 237 operates to protect notifiers who act in good faith, providing that they are "not liable, civilly, criminally, or under an administrative process, for giving the information".
117. Even if s 237 of the National Law does provide a defence to otherwise unlawful conduct, the granting of the declaration sought by Dr Hocking would require the Court to consider whether Dr Griffin contravened s 125(1)(a) of the Health Act, i.e. whether Dr Griffin engaged in unlawful conduct by making the Griffin Notification. The principles underlying the reluctance of courts to grant declarations in relation to unlawful conduct remain applicable to the case. Dr Hocking is not a statutory regulator. Consequently, it would be inappropriate to grant the declaration sought by Dr Hocking.
118. A further reason for declining to grant the declaration is that Dr Hocking has expressly disavowed a desire to obtain relief that is based primarily on unlawfulness. He seeks relief primarily in relation to the Board's conduct rather than the alleged unlawful conduct of Dr Griffin. It is the conduct of the Board that is affecting his livelihood.
119. Dr Hocking seeks to invoke the Court's jurisdiction under s 20 of the Supreme Court Act. Section 20(2) provides that the Court "is not bound to exercise its powers if it has concurrent jurisdiction with another court or tribunal."
120. The respondents contend that, in relation to the suspension decision, s 20 (2) applies as the Court's jurisdiction is concurrent with that of the ACAT.
121. The judicial nature of the supervisory jurisdiction of the Court that is invoked differs from the administrative nature of the ACAT's jurisdiction to review on its merits the Board's decision to take the "immediate action" of suspending Dr Hocking's registration. Kozanoglu v Pharmacy Board of Australia is authority for the proposition that in exercising its jurisdiction, the ACAT is to take into account the material that was before Board when it made its decision and any additional evidence that bears directly upon the position as it was when the original decision was made.[52]
122. The nature of a court's judicial review jurisdiction was discussed by Brennan J (as he then was) in the majority of the High Court in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.[53]
123. The nature a tribunal's merits review jurisdiction was discussed by Kirby J in the majority in Shi v Migration Agents Registration Authority ("Shi").[54] His Honour cited the proposal of the Commonwealth Administrative Review Committee (the Kerr Committee) to create the Commonwealth Administrative Appeals Tribunal:
The jurisdiction [of a tribunal] should be to hear and determine an application by a person who is aggrieved or adversely affected by a decision on the ground that the decision was erroneous on the facts and merits of the case.[55] (emphasis added).
124. Justice Kirby illuminated the fundamental difference between traditional judicial review conducted by a court and merits review conducted by a tribunal:
[A] tribunal, with the power to make decisions "on the merits", represented a bold departure from the pre-existing law, with its focus on constitutional and statutory "prerogative" remedies of judicial review. In so far as those remedies were invoked it was, and still is, commonly insisted that the court performing the review is not concerned, as such, with the factual merits of the matter, but only with legal merits, and then often only with any errors of a jurisdictional kind shown to exist at the time of the initial decision.[56]
125. Bowen CJ and Deane J (as he then was) in the majority of the Full Federal Court in Drake v Minister for Immigration and Ethnic Affairs said:
The function of the [Commonwealth Administrative Appeals Tribunal] is... an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, 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 been lawfully made in pursuance of a permissible policy, to adjudicate upon 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.[57]
126. There is a fundamental difference between the supervisory jurisdiction of the Court that has been invoked to entertain Dr Hocking's application for judicial review, and the merits review jurisdiction of the ACAT that has been invoked to review the Board's suspension decision; the former is judicial and the latter administrative.
127. In Dibeek Holdings Pty Ltd v Notari ("Dibeek")[58] a plaintiff landlord claimed that non-payment of rent and other breaches of covenant entitled it to forfeit the defendants' subleases, and the plaintiff sought orders for possession in the Supreme Court of the ACT. The defendant subtenants filed notices of dispute with the Tenancy Tribunal. Higgins J (as he then was) determined that, under s 54(2) of the Tenancy Tribunal Act 1994 (ACT), the Tenancy Tribunal had wide powers, including the power to grant relief by an enforceable order for possession and/or ejectment.[59] His Honour held that this Court had concurrent jurisdiction with the Tenancy Tribunal within the meaning of s 20(2) of the SCA and stayed the proceedings in the Court. His Honour stated:
If the legislature establishes a specialist tribunal to deal with matters within that specialised area, then, prima facie, it would be expected that this Court would not, ordinarily, seek to assert its concurrent jurisdiction in relation to a matter then pending before such a tribunal.[60]
128. His Honour determined that it was appropriate that the proceedings continue in the Tribunal and the proceedings in the Court be stayed until further order.
129. Dibeek is distinguishable because in Dibeek the Tenancy Tribunal had the jurisdiction to hear the dispute and the power to make the same orders the Supreme Court could have made. In these proceedings, the Court's jurisdiction to undertake judicial review and the ACAT's jurisdiction to review on its merits the Board's decision are fundamentally different. Both the Supreme Court and the ACAT have jurisdiction to hear argument about issues arising from the same set of facts. However the ACAT does not have supervisory jurisdiction to grant declaratory relief or orders in the nature of the prerogative writs. Conversely, this Court does not have the jurisdiction to conduct a merits review of the Board's suspension decision. Further, in this case the ACAT merits review proceedings relate only to the "immediate action" of suspension. The proceedings do not extend to the continuing investigation and the final decision to be made by the Board.
130. The jurisdiction of the Court that Dr Hocking seeks to invoke to review the suspension decision is not concurrent with the jurisdiction exercised by the ACAT.
Was the Griffin Notification a valid mandatory notification?
131. Dr Hocking challenges the validity of the Griffin Notification. He contends that the notification was not a valid notification because it was not a mandatory notification under s 141 of the National Law.
132. First, Dr Hocking says that Dr Griffin received the complaint solely in his capacity as administrator of the CPC and that, by making the notification to AHPRA and the Board in his capacity as administrator of the CPC, Dr Griffin impermissibly disclosed "protected information" that s125 of the Health Act required that he keep secret. Dr Hocking argues that, because the Griffin Notification was made unlawfully, it was not a valid notification. There is a related submission that the Griffin Notification was not a mandatory notification because Dr Griffin did not form the requisite "reasonable belief" that Dr Hocking was guilty of notifiable conduct "in the course of (Dr Griffin practising his) profession" in accordance with s 141(1) of the National Law; Dr Griffin formed the belief when he was acting in an administrative capacity in relation to the CPC.
133. Dr Hocking's second and alternative submission is that, because the Griffin Notification was an anonymous notification, it was not a mandatory notification within the meaning of the National Law. He contends that the concept of an anonymous mandatory notification is inconsistent with the provisions and intent of the National Law. By requiring that a notifier be an identified medical practitioner who holds a "reasonable belief", the National Law provides an important protection to practitioners against vexatious or mischievous complaints.
134. Pursuant to s 140, "notifiable conduct" includes "(d) (placing) the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards". There is no dispute that the letter of complaint alleged that Dr Hocking had practised the profession in a way that departed from professional standards, placing the public at risk. Nor is it disputed that, after he received the letter of complaint, Dr Griffin formed a reasonable belief that Dr Hocking was guilty of notifiable conduct. Rather, Dr Hocking contends that, because of the circumstances in which he received the letter, Dr Griffin should not have notified it to the Board.
135. Dr Hocking's first submission requires him to establish either that Dr Griffin received the complaint in an administrative capacity only (and s 141(1) therefore did not operate because Dr Griffin did not receive the complaint in the course of practising medicine), or that the requirement of mandatory notification was excluded by s 141(4) of the National Law and s 125 of the Health Act, which precluded notification.
136. Section 141 of the National Law requires a registered health practitioner who, "in the course of practising the first health practitioner's profession", forms "a reasonable belief" that another registered health practitioner is guilty of "notifiable conduct" to make a "mandatory notification" to AHPRA. Under s 141(4), a registered health practitioner "does not form the reasonable belief in the course of practising the profession" if the practitioner forms the reasonable belief "in the course of exercising functions as a member of a quality assurance committee" and the practitioner is unable to disclose the information because an Act "prohibits the disclosure of the information".
137. Part 5 of the Health Act provides for the establishment of scope of clinical practice committees (CPCs). The functions of a CPC include defining and reviewing the scope of clinical practice of a doctor credentialed for a health facility and withdrawing or amending the scope of clinical practice of a doctor: s 59(1)(b) and (d). Section 122 defines an "information holder" to include "a member" of a CPC, "someone else exercising a function ... under Part 5" and "someone else engaged in the administration of ... Part 5". Section 123(1) defines "protected information" about a person as "information about the person that is disclosed to, or obtained by, the information holder because of the exercise of a function under this Act by the information holder or someone else". Section 125(1)(b) provides that an information holder commits an offence if they recklessly divulge protected information. A maximum penalty of 50 penalty units, imprisonment for 6 months or both applies.
138. The first limb to Dr Hocking's first contention is that Dr Griffin received the complaint solely in his role as Acting Medical Administrator of the CPC. Dr Hocking submits that Dr Griffin treated the complaint as one made to him in that role. Inter alia, at the meeting with Dr Ashman and Ms Reid, Dr Griffin did not reveal that he had received the notification (consistent with Dr Griffin recognising a duty of non-disclosure), he anonymised the document in accordance with the CPC protocol, and he notified the complaint to Dr Chong, the chair of the CPC.
139. The contention that Dr Griffin received the complaint only in his capacity as administrator of the CPC is unsustainable. Dr Griffin received the complaint in several capacities, including his capacity as Locum Executive Director of Medical Services at the Hospital. First, the letter of complaint was addressed to "Dear Robert", not to the "Administrator of the CPC". Second, although the complainant stated his or her wish to "make a formal notification to the Canberra Hospital Clinical Review Committee and also the Clinical Privileges Committee...", the complainant also advised that he/she expected that the complaint would be notified by "the Canberra Hospital Administration" to "the relevant authorities i.e. the ACT Medical Board/ AHPRA." Dr Griffin was part of the Canberra Hospital Administration in that he held the position of Locum Executive Director of Medical Services at the Hospital. In Dr Griffin's words, that put him in the position of a "chief doctor at a hospital". The subject matter of the complaint was alleged unprofessional conduct threatening patient safety, a subject matter of interest to both the CPC and the Board.
140. In his role as a "gatekeeper" in relation to complaints, and in accordance with the request of the complainant, Dr Griffin dealt with the complaint in several ways. First, in his capacity as Administrator of the CPC, Dr Griffin notified Dr Chong. Second, as the Acting Executive Director Medical Services at the Hospital, Dr Griffin contacted Dr Bradbury at the Board and forwarded the complaint to Mr Logan at AHPRA under the signature block "A/Executive Director Medical Services The Canberra Hospital and Health Services". Before making a notification to the Board, Dr Griffin undertook his own inquiries in relation to the relevant procedure and spoke to Dr Ashman. By the time that Dr Griffin notified the Board, he was of the opinion that Dr Hocking's conduct fell short of accepted professional standards and should be investigated by the Board, i.e. it was "notifiable conduct" within the meaning of s 140(d) of the National Law. At that stage, no CPC had been constituted.
141. Dr Griffin formed the requisite belief in the course of practising his profession, at least because he formed it in the course of his role as the Locum Executive Director Medical Services at the Hospital, which made him the "chief doctor at a hospital".
142. The second limb to Dr Hocking's first contention is that, even if Dr Griffin was prima facie required to make a mandatory notification under s 141(1), the terms of s 141(4) of the National Law exempted him from mandatory disclosure as s 125 of the Health Act precluded mandatory disclosure.
143. Section 125 of the Health Act creates an offence of recklessly divulging protected information. Inter alia, where another Act "prohibits" the disclosure of information, s 141(4)(d) of the National Law exempts the information from being the subject of a s 141 mandatory notification. Prohibited behaviour and offending behaviour are not necessarily identical. While the Health Act creates an offence, it does not "prohibit" disclosure. Section 237 protects notifiers who act in good faith from criminal liability. The s 3(2)(a) and (e) objectives of the National Law focus on protection of the public and the public interest. The mandatory notification provisions of the National Law are designed to further those objectives. In that context, it is arguable that s 141(4)(d) of the National Law should be read narrowly such that, while it exempts "prohibited" disclosure, it does not exempt offending behaviour that is neutralised by s 237(2).
144. But for the purposes of argument it can be assumed that a disclosure that contravenes s 125 of the Health Act is also an exempt "prohibited" disclosure under s 141(4)(d)(ii) of the National Law.
145. Even if Dr Griffin formed a belief about Dr Hocking's conduct solely because of his administrative role with the CPC, his belief was not exempted from the mandatory notification requirements of the National Law. He did not form the belief "in the course of exercising functions as a member of a ... body approved or authorised under an Act of a participating jurisdiction", which is the basis for exemption under s 141(4) (d). Dr Griffin had administrative functions in relation to the CPC but he was not a member of that body. Indeed there was no CPC in existence at the time of notification.
146. There is a further reason why the Griffin Notification did not contravene the Health Act. The Health Act does not protect documents; it protects specific information that is obtained by an information holder because of the exercise of a function under the Health Act. In Schulman v Abbott Tout Lawyers (No2) Rares J considered s 723 of the Legal Profession Act 2004 (NSW), which provides that 'a person who discloses any information obtained in the administration of this Act is guilty of an offence'.[61] An issue arose as to whether a copy of a letter allegedly provided to the Law Society in the course of an investigation of a complaint of professional misconduct made by the applicants could be used by the applicants in proceedings. Rares J permitted the use of the letter on the basis that:
No particular information contained in the copy letter has been identified as possessing the character of information that, itself, was obtained in the administration of the Act, as opposed to being information that was otherwise available from the copy letter.[62]
147. By analogy with the circumstances in Schulman, the Health Act does not make it an offence to disclose information that is already known to the discloser because he or she has received the information otherwise than in the exercise of the relevant function. Dr Griffin received the relevant information not only through the Griffin Notification but also through the identical document received by Dr Ashman, and he became aware of the contents of the Ashman Complaint before he notified the Board. The Ashman Complaint is independent of any s 125 argument.
148. The Court also rejects the argument advanced by Dr Hocking that an anonymous notification is not a "mandatory notification" within the meaning of the National Law because the concept of an anonymous mandatory notification is inconsistent with the provisions and intent of the National Law in that the s 141 references to "a registered health practitioner" and to the formation of a "reasonable belief" are requirements designed to protect practitioners about whom complaint is made. Section 141 of the National Law is not designed to protect practitioners against unwarranted complaints; it is designed to require practitioners to make complaints that may, upon further investigation, be shown to be warranted and to ensure that practitioners do not adhere to a code of silence in relation to significant misconduct by other practitioners. The provision gives effect to the s 3(2)(a) objective of protection of the public.
Was there another lawful basis upon which the Griffin Notification was made?
149. Dr Griffin submits that, if the notification was not a mandatory notification, then it was at least a "voluntary notification" under s 144(1)(a) of the National Law and that, regardless of the route by which it reached its destination, it was properly before the Board.
150. Dr Hocking responds that the notification cannot be characterised as a voluntary notification because Dr Griffin himself stated in his notification and in evidence that he made the notification because he felt obliged to do so.
151. In relation to voluntary notification, both the category of notifier and the grounds for notification are much broader than the grounds requiring mandatory notification. Sections 144 of the National Law provides that a voluntary notification may be made to AHPRA on a number of grounds, including "that the practitioner's professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner's professional peers". Under s 145, a voluntary notification may be made by "any entity that believes that a ground on which a voluntary notification may be made exists". The requisite belief need not be formed by a practitioner in the course of his or her practice. The belief need not be reasonable.
152. Whether the Griffin Notification is to be characterised as a "mandatory notification" under s 141 of the National Law or a "voluntary notification" under s 144 of the Law is a legal question for the Court, and it does not depend on Dr Griffin's opinion about the legal basis upon which he made the Notification.
153. The Court considers that the Notification was a mandatory notification. However, if it was not a mandatory notification, then it certainly satisfies the less stringent requirements for a voluntary notification.
154. If the notification was neither a "mandatory notification" nor a "voluntary notification", then it was made when Dr Griffin reasonably believed that he should make the notification under the National Law and s 237 operates to make lawful that which might be unlawful because of the provisions of s 125 of the Health Act.
If the Griffin Notification was not a valid notification, did the Board err in acting upon it?
155. Dr Hocking submits that, if the Griffin Notification was made "invalidly", then the Board should not have acted on it.
156. Although it is not necessary to determine this issue, the Court makes the following observations.
157. First, in the scheme of the National Law, the provisions concerning mandatory and voluntary notifications are only a means to an end; the provisions require (in the case of mandatory notifications) or enable (in the case of voluntary notifications) the Board to be notified of matters that may affect the health, performance or conduct of practitioners. Once the Board receives a notification, the means by which it reached the Board become irrelevant. There is no obligation upon the Board to investigate the circumstances in which a notification is made, either initially or at a later stage in the investigation of a complaint. The Board is not required to determine whether a notification is validly made or involves any breach of the law affecting the maker of the notification. The Board is required to act in accordance with Part 8 of the National Law. The Board must conduct a preliminary assessment of the notification for the purpose of deciding three matters; whether the notification relates to a person who is a health practitioner, whether it relates to a matter that is a ground the notification, and whether it is a notification that could also be made to the Health Services Commissioner (for the purpose of complying with s 150(1) - (3)). The action that the Board may take in relation to a notification is set out in s 150 (4A) of the National Law. One of the options available to the Board is to take no further action in accordance with s 151. Section 151(1) of the National Law sets out five grounds upon which the Board may decide to take no further action. The grounds do not include the invalidity or unlawfulness of the notification.
158. Second, in this case there is no evidence that the Board or AHPRA knew or ought to have known of any circumstances that may have rendered the Griffin Notification invalid or unlawful. The Board cannot be expected to refrain from responding to a notification on the basis of information of which it has no knowledge. Mr Logan of AHPRA knew that Dr Griffin was the administrator of the CPC, but he did not receive the initial notification from Dr Griffin. The notification was made verbally by Dr Griffin to Dr Bradbury, who brought it to the attention of Mr Logan. A notification may be made either verbally or in writing: s 146(1) of the National Law. In any event, for the reasons set out above, knowledge of Dr Griffin's position with the CPC was not necessarily indicative of invalidity or unlawfulness.
159. Third, s 148(1) of the National Law requires AHPRA to refer a notification to the Board as soon as practicable. When Mr Logan received an email from Dr Griffin that enclosed the letter of complaint, he was required by statute to forward it to the Board as soon as practicable. The statutory requirement of referral is not qualified; in particular, there is no statutory entitlement or requirement that AHPRA consider whether the notifier has complied with another law or is authorised to make a notification. Once the notification is made, AHPRA is required to act upon it, regardless of the circumstances in which the notification is made.
160. Fourth, in relation to the taking of immediate action by the Board under s 156 of the National Law, the "validity" of any notification is irrelevant. The power to take immediate action is not triggered by the receipt of a notification but by the Board forming a reasonable belief based on the practitioner's "conduct, performance or health" that the practitioner poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.
161. It is possible that circumstances may arise where the provenance of a notification is relevant to the Board's consideration of an appropriate response to it, at least where provenance is questionable on the face of the notification or is revealed in the subsequent investigation. In this case, the Griffin Notification itself did not suggest that it may be problematic.
Procedural Fairness - Dr Hocking's Six "Planks"
162. Dr Hocking contends that the Board acted with actual or apparent bias and otherwise breached its obligation to accord procedural fairness to him.
163. The six "planks" upon which Dr Hocking relies to support what the Board describes as a "cumulative bias thesis" and the submission that the Board has breached the hearing rule are the following contentions.
164. Under rule 3557 of the Rules, unless there are "special circumstances" for the grant an extension of time, an application for relief must be filed no later than 60 days "after the day when the grounds for the grant of the relief first arose". The principal "planks" or actions grounding the procedural fairness arguments (those that relate to the Griffin Notification) did occur within 60 days of the commencement of the application before the Court. In the course of submissions, Dr Hocking sought an extension of time in relation to earlier actions, asserting that the Board's course of conduct "crystallised by its decision-making concerning the Griffin Notification".
165. If it is necessary for Dr Hocking to obtain leave to advance all aspects of the six "planks" then leave is granted on the basis that Dr Hocking may not have become aware of the significance of matters predating the Griffin Notification until the matters associated with the Griffin Notification arose.
General principles in relation to procedural fairness
166. There is no dispute that the Board had a duty to act impartially and afford Dr Hocking a fair hearing. Where Parliament has conferred a statutory power that can destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the parliament intended such power to be exercised fairly and in accordance with the rules of natural justice: Jarratt v Commissioner of Police.[63]
167. Dr Hocking does not assert that the alleged excessiveness and unreasonableness in the Board's responses to complaints against him are themselves sufficient to invalidate the responses on the basis of Wednesbury unreasonableness.[64] Rather, he alleges excessiveness and unreasonableness as circumstances evidencing bias and/or a failure to give him a fair hearing.
168. The statutory context is a fundamental consideration in determining what is required by procedural fairness in a particular case. Brennan J (as he then was) stated in NCSC v News Corp Ltd:
The terms of the statute which creates the function, the nature of the function and the administrative framework in which the statute requires the function to be performed are material factors in determining what must be done to satisfy the requirements of natural justice.[65]
169. The content of an administrative body's duty to accord procedural fairness is a flexible one. As emphasised by Tucker LJ in Russell v Duke of Norfolk:
The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have reasonable opportunity of presenting his case.[66]
170. In Director General Department of Trade and Investment Regional Infrastructure and Services v Lewis, McColl JA said:
This reflects the proposition that procedural fairness is a flexible obligation requiring the adoption of fair procedures which are appropriate and adapted to the circumstances of the particular case. This ensures that the statutory power is exercised fairly, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, in the interests of the individual and the interests and purposes, whether public or private, which the relevant statutes seeks to advance or protect or permits to be taken into account as legitimate considerations... [67]
171. The statutory context of the present case involves the taking of "immediate action" as an interim measure, pending a full investigation and consideration of a notification. Notice is given in relation to interim action, not final action. In this case, the nature and content of the requirements of procedural fairness in relation to possible "immediate action" are also affected by the gravity of the complaints and the context in which they are made. Section 156 of the National Law sets a low threshold in relation to the Board taking "immediate action" (it may do so if it "reasonably believes" that the practitioner's conduct "poses a serious risk" and "it is necessary to take immediate action to protect public health or safety"). The legislative intent is to allow the Board to act quickly to protect the public. Section 157 requires that a practitioner be given notice of proposed "immediate action", but does not stipulate a minimum period of time for response.
Principles in relation to actual and apprehended bias
172. Dr Hocking asserts that, taken as a whole, the material provides circumstantial evidence of actual bias or, at least, evidence to support a finding of a reasonable apprehension of bias.
173. The rule against actual bias and the rule against apprehended bias differ. The former involves a subjective test whereas the latter is to be determined on an objective basis.[68]
174. The test for actual bias is a stringent one; it is set at a level higher than the test for apprehended bias.[69] In relation to the Commonwealth Administrative Appeals Tribunal, in Jia v Minister for Immigration and Multicultural Affairs French J (as His Honour then was) stated:
"Actual bias"... must be a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made. [70]
175. This passage was approved in the joint judgment of Gleeson CJ and Gummow J on appeal in Minister for Immigration and Multicultural Affairs v Jia Legeng.[71] A plaintiff who alleges actual bias must adduce evidence of the actual state of mind of a decision-maker.[72] The onus cast on the plaintiff is a heavy one as the allegation is serious and must be clearly proved.[73]
176. The test for apprehended bias in the judicial context is that stated by the majority of the High Court in Edner v Official Trustee in Bankruptcy:
[The application of the apprehension of bias principle] requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[74]
177. This test for apprehension of bias is directed at judicial decision-making. Different standards may apply in the case of a body such as the Board. When defining the test, regard must be had to the statutory functions and powers of the decision-maker: Duncan v Ipp,[75] in which Bathurst CJ applied principles articulated in McGovern v Kuring gai Council.[76] In McGovern v Ku-Ring-Gai Council Chief Justice Spigelman stated:
Each of the elements in the apprehension of bias principle requires a context specific approach which may, and usually will, differ from that appropriate for a judicial decision-making process.
In each case the Court must have an understanding, in the particular context of:
The case law on judicial decision-making is not a starting point when determining the application of the apprehended bias test in a specific statutory context. The statute must be part of the assessment from the outset and not treated as some kind of qualification of a prima facie approach.
How the apprehended bias test is applied is... affected by the statutory functions being performed and by the identity and nature of the decision-maker who is obliged by statute to perform those functions. The content of what the test requires varies from one context to another by a process involving, and usually determined by, statutory interpretation.[78]
179. An allegation of apprehension of bias must be firmly established by the applicant.[79]
180. A fair minded lay observer cannot reasonably apprehend bias or pre-judgment on the basis of a previous adverse decision: Garde-Wilson v Corrs Chambers Westgarth and Anor.[80]
181. The present case is complicated by the fact that bias is alleged against Dr McKenzie, who is just one individual on the Board. In IW v City of Perth Gummow J considered that the bias of one member of a multi-member board would taint the others. His Honour stated:
It has been said that a decision of a collegiate body may be successfully attacked for bias even where but one member was biased and that member was not one of the majority. This is on the footing that in bias cases the court does not enter into difficult evidentiary questions as to the extent to which that person may have influenced the majority.[81] (citations omitted)
182. In McGovern v Ku-Ring-Gai Council, Chief Justice Spigelman and Basten JA differed on the issue of whether the actual or apprehended bias of one or more members of a multi-member board would in itself be sufficient to conclude that the bias had affected the decision of the board.[82] Basten JA considered that, for a court to enter into an inquiry as to whether the bias of a particular individual on a multi-member board had influenced other members would undermine the objective nature of the apprehension of bias test and would be an inappropriate inquiry for a court to undertake.[83] Although Spigelman CJ did not favour the obiter of Gummow J in IW v City of Perth, His Honour stated that:
In the context of multi-member decision-making bodies that are not courts, or subject to the same stringent requirements as courts, a disqualifying conflict of interest of a character which the apprehended bias principle would require the person not to participate in, indeed not even be present at, the decision-making process has been held to exist where...
the person is the complainant or accuser with respect to the matters
the subject of inquiry: Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243; Stollery v Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509.
In such cases, the independent observer might reasonably believe that the influence on the others of the person(s) who manifested of that character would go well beyond the usual process of internal debate.[84]
183. In Dickason v Edwards the rules of the Ancient Order of Foresters of the United Melbourne District, a friendly society formed under a Victorian statute, provided for a judicial tribunal to be constituted to adjudicate upon charges against its members.[85] The District Chief Ranger, who was a member of the judicial tribunal, made complaints against a member and presided at the tribunal which heard the charge arising from those complaints. The member was found guilty and de facto expelled from the society. Although the District Chief Ranger had not taken an active part in the proceedings, the High Court found that the proceedings were invalid by reason of the presence of the District Chief Ranger.
184. The statutory body in dispute in Stollery v Greyhound Racing Control Board was the Greyhound Racing Control Board, which was empowered by statute to conduct inquiries and deal with matters detrimental to the proper conduct of greyhound racing. A member of the Board had been offered a financial gift by a greyhound owner.[86] The member reported the incident to the Board. The member was present, but did not participate, in the deliberations of the Board which ultimately resolved that the subject greyhound owner be found guilty of detrimental conduct and disqualified. The High Court held that, as the member was an accuser, he was disqualified from acting as a member of the Board in relation to the accusation.
185. Hall v NSW Trotting Club Ltd is a decision of the NSW Court of Appeal that distinguishes the above High Court decisions. Hall concerned the NSW Trotting Club which, by its rules, appointed stewards to assist in the control of racing.[87] The chairman and deputy chairman of an inquiry conducted by the stewards against a member gave unfavourable evidence in the hearings which lead to a charge of misconduct and disqualification against that member. Justices Hutley and Samuels in the majority held that, inter alia, the rules of the Club entitled members of its disciplinary tribunal to perform multiple functions and act upon their own knowledge. It had not been established that the chairman and deputy chairman were directly and personally involved in the matters under consideration. It was not reasonable to infer that they must have an interest in the outcome of the proceedings or that they were, in substance, accusers. Therefore they were not disqualified from acting as judges on the disciplinary tribunal.
186. In Tuch v Eastern Sydney and Illawarra Area Health Service, a Clinical Trial Review Committee's report was quashed because the doctor who had originally recommended that the applicant's clinical trial be suspended was involved in selecting the members of the Review Committee and assisted in settling their terms of reference.[88]
187. In Taylor v The Medical Board of South Australia, the decision of the Reinstatement Review Committee of the Medical Board of South Australia was set aside because the presiding member of the Committee was the same person who had referred the matter to the Medical Board. Anderson J held that the Committee's presiding member should not have been appointed to the Committee.[89] Anderson J considered that the member had played "such an important part behind the scenes" in relation to the matter, including referring the matter to the Board, that an apprehension of bias arose.[90] The presiding member's involvement included being present at the Board meeting where a decision was made to lay the complaint against the appellant, allegedly providing instructions to the Board's solicitors regarding complaint, and sitting as the presiding member at the Board meeting where the Board resolved to form a Reinstatement Committee.[91]
188. The effect of these decisions is that, to prove actual bias, Dr Hocking must adduce proof that Dr McKenzie actually approached the matter of Dr Hocking's registration with a closed mind, or had prejudged the issues due to partiality or prejudice against Dr Hocking.
189. To determine the issue of apprehended bias, it is necessary to consider the scheme of the National Law and to decide whether, in the context of the legislation, an apprehension of bias arises objectively either with respect to Dr McKenzie or with respect to the Board as a whole.
190. It is unnecessary to decide whether the apprehension of bias of Dr McKenzie as a single member of the Board is sufficient to affect the rest of the Board because, for the reasons set out below, Dr Hocking has established neither that Dr McKenzie was actually biased nor that an apprehension of bias arises with respect to Dr McKenzie.
Consideration of the first plank - bias of Dr McKenzie
191. There is no evidence whatsoever that Dr McKenzie was actually biased against Dr Hocking in the sense that he was unwilling to undertake a proper evaluation of the materials before the Board. There is no evidence that Dr McKenzie took a view in relation to the notifications or had any expectation as to how AHPRA would deal with them. There is no evidence that Dr McKenzie had a direct or personal interest in the outcome of notifications concerning Dr Hocking. The fact that decisions adverse to Dr Hocking were made is not evidence of actual bias. Nor does any procedural deficiency constitute evidence of actual bias on the part of Dr McKenzie.
192. Dr Hocking's submissions in relation to apprehended bias must be considered in the context of the scheme of the National Law. Within 60 days of receiving notification, the Board must conduct a preliminary assessment (or preliminary filtering) of the notification to ensure that it appears to contain a proper matter for notification.[92] In the case of insubstantial matters, old matters and the like, the Board may decide to take no further action.[93] If the Board "reasonably believes" that the practitioner's conduct, performance or held "poses a serious risk to persons" and "it is necessary to take immediate action to protect public health or safety", then the Board may take "immediate action".[94] Before taking "immediate action" by way of suspending a practitioner's registration or imposing a condition on registration, the Board must engage in a "show cause" process.[95] A decision of the Board to suspend or impose a condition of registration gives rise to a right of appeal.[96] Under the scheme of the National Law, in relation to any significant decision, including a decision to impose a condition on registration or suspend registration, the practitioner is afforded a right to be heard and a right of appeal.
193. A decision to take "immediate action" is an interim decision. A Division 8 investigation then ensues. The practitioner must be advised of the progress of the investigation at intervals of not less than three months.[97] Following the investigation, the Board must consider the investigator's report.[98] The Board may take action under s 178, including the imposition of a condition on registration, but only after a "show cause" process.[99] Any very serious matter must be referred to the responsible tribunal.[100] In proceedings before a tribunal, the practitioner is a party.[101] It is within a statutory context that involves multiple checks and balances that Dr Hocking's complaints of apprehended bias must be considered.
194. Dr Hocking's first submission is that Dr McKenzie had a conflict of interest because he was the notifier of anonymous complaints; a reasonable observer would consider that Dr McKenzie's decision to lodge notifications based on anonymous complaints showed that he considered them worthy of serious investigation and that he might not bring an unbiased mind to the resolution of the notifications. Dr Hocking submits that, by transmitting the anonymous notifications, Dr McKenzie gave them "his imprimatur" and thereby became conflicted.
195. The Board is an inquisitorial body with investigative and adjudicative functions. The National Law contemplates that a member of the Board may play multiple roles. Section 33 stipulates that between half and two-thirds of the members of the Board must be practitioners. Section 141 imposes on a health practitioner an obligation to make mandatory notifications where the requisite reasonable belief arises in the course of his or her professional practice. A source of information from which such reasonable belief may be formed is a complaint from the general public. As the facts of this case demonstrate, a notifier is not necessarily a complainant, and a notifier does not necessarily adopt the content of a complaint that he or she notifies to the Board. It would be incongruent to accept that, in the statutory context of the National Law, the mere fact that a Board member is also a notifier is ipso facto sufficient to establish that he or she is an "accuser".
196. The Court finds that, in forwarding the anonymous notifications to AHPRA, Dr McKenzie was acting in a purely administrative capacity. There is no substance to the submission that, by providing the anonymous complaints to AHPRA, Dr McKenzie gave them "his imprimatur". He did not adopt the content of the notifications as his own. Dr McKenzie was not an "accuser" whose complaints gave rise to the proceedings against Dr Hocking. Consequently, there is no basis upon which a reasonable observer would infer that Dr McKenzie might bring an unbiased mind to the resolution of the notifications, or that he had taken any view in relation to the notification. Rather, a reasonable observer would conclude that Dr McKenzie had complied with his obligations under the legislation and acted in an administrative capacity in passing on the complaints; that Dr McKenzie was merely the vehicle by which the complaints were conveyed to the Board.
197. Second, Dr Hocking submits that, on 16 April 2013 when the Board met to review conditions 1 - 6, Dr McKenzie failed to advise the Board that he was in receipt of the Second McKenzie Notification. As Dr McKenzie was aware of the Second McKenzie Notification, it must have informed his opinion about what action should be taken.
198. In relation to this submission, there is no evidence that Dr McKenzie was in receipt of the Second McKenzie Notification prior to the Board meeting of 16 April 2013. He may well have received it after that meeting.
199. Third, Dr Hocking submits that, when the Board (rather than Dr McKenzie) refused the application that Dr McKenzie recuse himself on 19 April 2013, the Board did not know about the Second McKenzie Notification because Dr McKenzie had not advised the Board that he had received the Notification. Dr Hocking argues that the Board should have reconvened after it became aware of the Second McKenzie Notification for the purpose of reconsidering whether Dr McKenzie had a conflict of interest. Dr Hocking was unaware of the Second McKenzie Notification until after the show cause hearing for the Griffin Notification on 24 April and he was unable to rely upon receipt of the Notification when asking Dr McKenzie to recuse himself. He submits that, when it refused the request on 9 September, the Board failed to properly consider submissions contained in his solicitors' letter dated 2 August 2013.
200. The submission that, had the Board been properly informed that notifications had passed through Dr McKenzie's hands, then the Board would or should have asked Dr McKenzie to stand down from further consideration of notifications concerning Dr Hocking, relies upon the premise that, by transmitting notifications to the Board, Dr McKenzie gave them "his imprimatur" and became conflicted. The Court has rejected this submission.
201. Fourth, Dr Hocking submits that Dr McKenzie was Chair of the Board in relation to all notifications concerning him since 2011 and the conduct of the Board under Dr McKenzie's chairmanship involved "multiple transgressions of procedural fairness (hearing)", the imposition of manifestly excessive penalties and other conduct that evidenced bias on the part of Dr McKenzie, which bias must have infected the Board as a whole.
202. For the reasons that appear below, the Court finds that there have been no serious or sustained transgressions of the hearing rule during the period that Dr McKenzie chaired the Board, and that the penalties that were imposed prior to the Board considering the Griffin Notification were not "manifestly excessive".
203. Dr Hocking submits that the failure of the Board to call Dr McKenzie gives rise to a Jones v Dunkel inference;[102] the Court should infer that Dr McKenzie would not have given evidence that the anonymous notifications were in fact mandatory notifications, having emanated from registered health practitioners, and would infer that in other respects Dr McKenzie's evidence would not have assisted the Board.
204. In Manly Council v Byrne and Anor it was said:
though Jones v Dunkel licences drawing more confidently an inference against the party who has failed to call the evidence, before that can happen there must first be available to be drawn, on the evidence which has been admitted, an inference against that party.[103]
205. Dr Hocking has produced no other evidence supporting inferences to be drawn against the Board and about which Dr McKenzie could be expected to have something to say, and he cannot rely upon Jones v Dunkel.
206. As there is no evidence of actual bias on the part of Dr McKenzie and no basis for a finding of apprehended bias on his part, the question of contamination of the Board does not arise.
Consideration of the second and sixth planks - procedural deficiencies and failure to discharge statutory functions
207. It is convenient to deal with these "planks" together as there is some commonality.
208. Dr Hocking alleges that there was excessive delay in dealing with the 2011 notifications that resulted in the imposition of conditions 1 - 6. The notifications concerned conduct that occurred in 2008. In May 2011, Dr Hocking gave an undertaking that he would not perform certain surgery, but the Board did not engage an expert until October 2011. The Board failed to take action until 1 June 2012, when conditions 1 - 6 were imposed. The Board failed to provide its expert's reports to Dr Hocking as soon as they became available in November and December 2011. The Board failed to provide three monthly updates as required by s 161(3) of the National Law and failed to ensure that the investigation proceeded as quickly as practicable as required by s 162 of the National Law. The Board unreasonably refused to approve Dr McNicol as Dr Hocking's supervisor for paediatric surgery. The Board knew that Dr Hocking was being supervised and trained by Dr Young for a period of six months but did not inform Dr Hocking that Dr Young had not been approved. Conditions 1-6 should have been reviewed in six months (by December 2012). Despite favourable reports from Dr Hocking's supervisors and trainers that endorsed the lifting of the conditions, the decision to remove the conditions was delayed until 16 April 2013 and Dr Hocking was not notified until 8 May 2013 (after he had been suspended in relation to the Griffin Notification).
209. The Second Solomon Notification (which led to the imposition of conditions 7-12) was made in July 2012. Dr Hocking alleges that Board gave him short notice (on 28 August 2012) of the show cause hearing on 4 September 2012, and limited the time that he was allowed to present his case to 30 minutes. Dr Hocking was given notice that the Board intended to impose one condition as a form of "immediate action". The Board failed to give him notice that it was contemplating other conditions. The Board declined to hear from his witness, Dr McNicol. He was not given three monthly notices about the progress of the investigation, as required by s 161 (3) of the National Law.
210. The Second McKenzie Notification was lodged on 16 April. Dr Hocking complains that he was not notified until 19 July 2013. He was not aware of the Notification when he asked Dr McKenzie to recuse himself in relation to the First McKenzie Notification.
211. In relation to the Griffin Notification, Dr Hocking complains that the Board gave him short notice (on 22 April 2013) of the show cause hearing on 24 April 2013. This occurred in the context that there was no assertion of an adverse patient outcome, and no information that further similar procedures were scheduled. There was no material to support the assertion that Dr Hocking had disregarded patient safety. Further, the Board had only recently determined to lift conditions 1-6. Dr Hocking was not given an opportunity to respond to the alleged failure to refer his proposed treatment to an ethics committee for approval, to independent research undertaken by members of the Board into the procedure that he employed (which caused them to conclude that the PRP procedure that he had undertaken was experimental), or to unidentified recent "serious reports" leading to suspension. Further, the Board concluded that Dr Hocking had performed the PRP procedure in order to avoid breaching the condition on his registration that precluded him from performing an osteotomy. When considering the Griffin Notification, the Board took the Second Solomon Notification into account, although the outcome of that Notification was still under consideration. Dr Hocking was not informed of the Second McKenzie Notification until after the show cause hearing on 24 April 2013. The investigation into the Griffin Notification was not conducted as quickly as practicable, contrary to s 162 of the National Law.
212. As to the allegations that, at times, the Board acted with undue haste, the power reposed in the Board by s 156 of the National Law is protective and the low threshold contained in that section is indicative of a legislative intent to allow the Board to act promptly and, at times, drastically to protect the public, pending detailed investigation of a notification. The scheme of the National Law is consistent with the short notice that was given to Dr Hocking in relation to show cause hearings concerning proposed "immediate actions" against him. No inference of prejudice can be drawn merely from the severity and speed with which actions were taken against Dr Hocking.
213. It is understandable that Dr Hocking feels somewhat aggrieved by the fact that the Board acted promptly when it came to taking "immediate action" but relatively slowly when it came to reviewing and ameliorating the action that had been taken.
214. However, the alleged delays in formulating and removing conditions should be considered in the light of the gravity and multiplicity of the complaints against Dr Hocking (including one treatment which resulted in leg amputation). Further, a practitioner may apply to the Board at any time to change or remove a condition or to change or revoke an undertaking, provided they follow the process set out in s 125 of the National Law. As to the matters raised by Dr Hocking in connection with the 2011 Notifications, the chronology does not reflect any significant delay or other unfairness. The Board gave Dr Hocking notice to show cause, negotiated with him in relation to the acceptance of an undertaking, considered submissions concerning revocation or variation of the undertaking, obtained the advice of an independent expert (Dr Fraser), considered the report of Dr Hocking's expert (Dr Marel), and considered other material advanced by Dr Hocking. The short delay in engaging an expert was related to Dr Hocking's delay in providing copies of the medical records of relevant patients. The conditions were due to be reviewed on 21 December 2012. The last report was received from Dr Hocking's trainers and supervisors on 6 February 2013 and the Board met on 28 February 2013 to consider the reports and review conditions 1- 6. Notice of the proposed variations was given on 1 March 2013 and Dr Hocking was invited to attend the Board meeting on 16 April 2013 to make submissions. On 16 April 2013, the Board determined to change the conditions, with condition 2 to remain in place.
215. The Board did not provide three-monthly reports, as required. However, there was frequent communication between the Board and Dr Hocking, and it cannot reasonably be contended that Dr Hocking was unaware of the stage reached by investigations. He suffered no practical detriment.
216. The Board's decision that it would not approve Dr McNicol as an appropriate supervisor was not unreasonable; the Board preferred a supervisor and trainer who was actively engaged in the profession and was regularly training surgeons in the relevant field. As to the Board's failure to advise Dr Hocking that Dr Young was not approved supervisor, no application was made to the Board for approval of him as a supervisor.
217. The Board did fail to review conditions 1-6 within six months (by December 2012), but the failure is explained by the fact that the Board was awaiting expert reports, including a report from an expert engaged by Dr Hocking.
218. In relation to the alleged procedural shortcomings concerning the Second Solomon Notification, it is true that the Board gave Dr Hocking only a week's notice of the meeting on 4 September 2012. However, this was in the context that conditions 1- 6 had been imposed only three months earlier and Dr Hocking had been the subject of several recent and serious complaints. It is understandable that the Board felt compelled to act speedily and firmly in the interests of public safety.
219. As to the complaint that the Board failed to notify Dr Hocking that was contemplating conditions other than the notified proposed conditions, a practitioner should be notified of any significant condition that the Board is contemplating. Conditions 7- 12 that were imposed by the Board were significant. However, any procedural deficiency was capable of being addressed through the ACAT review procedure or Supreme Court proceedings. Most of Dr Hocking's complaints about procedural unfairness associated with conditions 7 - 12 were raised in the application for a stay that was made to the Supreme Court or by the application made to the ACAT for merits based review of the decision of 4 September 2012. However, both proceedings were withdrawn. Dr Hocking is seeking to re-litigate matters the subject of those proceedings.
220. There was an unfortunate delay between the lodgement of the Second McKenzie Notification on 16 April 2013 and 19 July 2013, when Dr Hocking was notified of the lodgement. Dr Hocking claims that he was disadvantaged because he was unaware of the Second McKenzie Notification when he asked Dr McKenzie to recuse himself in relation to the First McKenzie Notification. For the reasons discussed elsewhere, Dr Hocking suffered no such disadvantage.
221. In relation to Dr Hocking's complaint that the Board gave him only two days' notice of the show cause hearing concerning the Griffin Notification on 24 April 2013, if this was an isolated complaint about a surgical procedure on only one patient, then the notice may well have been too short. However, this was the seventh complaint made against Dr Hocking within a period of about two years, and Dr Hocking was subject to existing restrictions. In determining the speed and manner in which it dealt with the Griffin Notification, the Board was entitled to take the earlier notifications into account, regardless of whether had been determined. Given the number and nature of the earlier notifications, and the fact that Dr Hocking was the subject of existing restrictions and ongoing investigation, upon receipt of the Griffin Notification the Board was entitled to consider that Dr Hocking's conduct posed a "serious risk" to the public and that the only means of neutralising that risk was by suspending his registration.
222. In relation to the manner in which the Board dealt with notifications against Dr Hocking, neither individually nor cumulatively were there procedural deficiencies or statutory irregularities that had a significant practical impact on him.
Consideration of the third plank - the imposition of excessive penalties
223. Dr Hocking contends that the Board has a history of responding to notifications against him in an excessive way, and the excessive response evidences actual bias, or is a circumstance giving rise to a reasonable apprehension of bias.
224. In relation to the Second Solomon Notification and the imposition of conditions 7 - 12, Dr Hocking contends that the conditions were manifestly excessive and unnecessarily punitive because, in effect, they amounted to a suspension of registration. They were not necessary for the protection of the public. The surgery the subject of the notification was performed on 15 February 2012, the notification was made in July 2012 and conditions 7 - 12 were imposed from 7 September 2012 to 8 March 2013. Despite the seriousness with which the original complaint had been treated, in March 2013 conditions 7-12 were voluntarily withdrawn by the Board. It was decided that an adequate response was referral to a performance review panel, but the referral to a PRP did not occur until 22 August 2013.
225. Condition 7 - 12 did impact heavily upon Dr Hocking's ability to practice. However, the imposition of those conditions must be seen in the context that the Second Solomon Notification was the third notification received against Dr Hocking within a period of 18 months. It was received just after the Board had considered the First Solomon Notification and decided that it was a serious notification that required the imposition of six conditions. Whether the Board's response was reasonable must be considered from the Board's perspective at the time that it took the immediate action, not with the benefit of hindsight. Dr Hocking had a right of appeal against the imposition of the conditions. He exercised that right, but then abandoned the appeal.
226. In relation to the Griffin Notification, Dr Hocking says that the Board's response was disproportionate because it took the immediate action of suspension in the circumstances that the notification was anonymous, there was no evidence of adverse patient outcome and the Board did not know whether he intended to perform any further PRP procedures on patients with Perthes disease. A proportionate response would have been to require that Dr Hocking perform no PRP procedure on Perthes patients or to impose a condition similar to that imposed by the ACAT (to perform no paediatric surgery). Dr Hocking submits that the Board's "adamant refusal to modify" its immediate action of suspension evidences bias.
227. The Board's response to the Griffin Notification must be seen in the context that it was the seventh notification made against Dr Hocking within a period of about two years. The Board was entitled to treat the Notification as prima facie genuine and to disregard the fact that it was anonymous: [148] above.
Consideration of the fourth plank - the treatment of anonymous notifications
228. Dr Hocking asserts that the Board should not have accepted and acted on the First and Second McKenzie Notifications and the Griffin Notification because they were anonymous. The Board accepted them on face value and failed to consider whether they met the statutory requirements for mandatory or voluntary notifications. The Board could not have been satisfied that they emanated from appropriately qualified medical practitioners who had firsthand knowledge of the subject matter of the Notifications and could not have been otherwise satisfied as to their provenance.
229. For the reasons discussed in [148] and [157] - [161] above, there is no substance to this "plank".
Consideration of the fifth plank - differential treatment
230. Dr Hocking complains that the Board failed to properly investigate and pursue the McLaren Notification. The Board failed to interview him and failed to seek a full response from Professor Smith in relation to all allegations. The Board erroneously rejected most of the complaint as falling outside the definition of "professional misconduct" contained in the National Law. The dismissive way in which the Board dealt with this "favourable" complaint can be contrasted with the punitive way in which the Board dealt with complaints against Dr Hocking.
231. It may be that the Board erroneously rejected part of the McLaren Notification as falling outside the definition of "professional misconduct". Section 5 of the National Law defines "professional misconduct" to include conduct falling outside the practice of a health practitioner's profession "that is inconsistent with the practitioner being a fit and proper person to hold registration". However, even if the rejection was erroneous, it was understandable because aspects of the complaint were unusual in nature. One erroneous rejection of a notification does not provide evidence of bias or apprehended bias in relation to other matters.
Is there circumstantial evidence of actual or apprehended bias by the Board?
232. Looking at the "planks" together, there is no evidence to support a finding of actual or apprehended bias on the part of the Board. There is no evidence that the Board approached the notifications against Dr Hocking with a pre-existing state of mind that disabled or rendered it unwilling to undertake a proper evaluation on the merits. The Court is not satisfied that, taken cumulatively, the matters upon which Dr Hocking relies might cause a fair minded lay observer to reasonably apprehend prejudice or lack of impartiality on the part of the Board in this case. Dr Hocking has failed to articulate and establish a connection between facts such as the speed and severity of decision-making and the possible departure from impartial decision making. Dr Hocking's concerns are merely conjecture.
233. It may be that Dr Hocking's real concern is that, because the Board has in the past made decisions adverse to him, it will be biased against him in relation to future decisions. Such concerns establish neither actual nor apprehended bias.
Application for order in the nature of prohibition against the Board
234. The application for an order in the nature of prohibition that the Board, if constituted to include any of nine nominated individuals (including Dr McKenzie) take no action in relation to any existing or future notification concerning Dr Hocking invites the Court to speculate that, in the future, the Board will act unfairly, thereby adversely affecting the interests of Dr Hocking in an unspecified way. Given that the Court has rejected each of Dr Hocking's arguments about bias and procedural fairness, there is no evidence from which to draw any inference that the Board is likely to act unfairly in the future.
235. In the absence of any evidence the Court should not grant a preventative remedy on the based solely on conjecture about future circumstances. Relief must be referrable to particular conduct or to an identifiable legal or equitable right. For this reason, the Court would decline the orders that are sought.
Does any denial of procedural fairness constitute a jurisdictional error upon which orders in the nature of prohibition may be made?
236. Dr Hocking submits that the Board's denial of procedural fairness constitutes a jurisdictional error upon which orders in the nature of prohibition may be made by the Court. The Board responds that Dr Hocking has not identified or articulated how the Board has acted in excess of jurisdiction persistently in its dealings with him.
237. There is no need to resolve this issue because Dr Hocking has not established that the Board has denied procedural fairness to him to any significant degree and, in any event, in exercise of discretion the Court would decline to make orders in the nature of prohibition.
I certify that the preceding two-hundred and thirty eight (238) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Chief Justice Murrell.
1. ACT Civil and Administrative Tribunal Act 2008 (ACT)
(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).
(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.
2. Health Act 1993 (ACT)
(1) The Minister may approve a committee as a scope of clinical practice committee in accordance with section 57.
Note A notifiable instrument must be notified under the Legislation Act.
(1) A scope of clinical practice committee has the following functions:
(i) whether to credential a doctor, dentist or eligible midwife for a health facility; and
(ii) the terms on which a doctor, dentist or eligible midwife is credentialled;
(b) to define, and review, the scope of clinical practice of a doctor, dentist or eligible midwife credentialled for a health facility;
(c) to review the scope of clinical practice of a doctor, dentist or eligible midwife if the CEO of a health facility refers the doctor's, dentist's or eligible midwife's scope of clinical practice to the committee under section 69 (5);
(d) to immediately withdraw or amend the scope of clinical practice of a doctor, dentist or eligible midwife credentialled for a health facility in accordance with this Act;
(e) any other function given to the committee under this Act.
(2) A reference in this section to credentialling a doctor, dentist or eligible midwife includes re-credentialling the doctor, dentist or eligible midwife.
(3) A scope of clinical practice committee must, as far as practicable, exercise its functions under subsection (1) (a), (b) and (c) in accordance with the Standard.
credential, in relation to a doctor, dentist or eligible midwife, means endorse the doctor, dentist or eligible midwife (the practitioner) to provide health services based on verification and assessment of the practitioner's qualifications, experience, skill, professional standing and any other relevant professional attributes.
Standard means the Australian Council for Safety and Quality in Health Care, Standard for Credentialling and Defining the Scope of Clinical Practice, published in July 2004.
For this part, a person is an information holder if -
(ii) a member of a scope of clinical practice committee; or
(iii) someone else exercising a function under part 4 (Quality assurance) or part 5 (Reviewing scope of clinical practice); or
(iv) someone else engaged in the administration of part 4 (Quality assurance) or part 5 (Reviewing scope of clinical practice); or
(b) the person has been given information under this Act by a person mentioned in paragraph (a).
Note Information may be given to people under various provisions of pt 4 and pt 5, including:
(1) For this part, information is protected information about a person if it is information about the person that is disclosed to, or obtained by, an information holder because of the exercise of a function under this Act by the information holder or someone else.
(2) Without limiting subsection (1), protected information includes sensitive information.
(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
(i) does something that divulges protected information about someone else; and
(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.
3. Health Practitioner Regulation National Law 2012 (ACT)
(1) The object of this Law is to establish a national registration and accreditation scheme for -
(i) programs of study that provide a qualification for registration in a health profession; or
(2) The objectives of the national registration and accreditation scheme are -
(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and
(b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and
(c) to facilitate the provision of high quality education and training of health practitioners; and
(d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and
(e) to facilitate access to services provided by health practitioners in accordance with the public interest; and
(f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
(3) The guiding principles of the national registration and accreditation scheme are as follows -
(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
(b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme;
(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in section 3.
"health practitioner" means an individual who practises a health profession.
mandatory notification means a notification an entity is required to make to the National Agency under Division 2 of Part 8.
"notifier" means a person who makes a notification.
professional misconduct, of a registered health practitioner, includes -
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
"registered health practitioner" means an individual who--
(a) is registered under this Law to practise a health profession, other than as a student; or
(b) holds non-practising registration under this Law in a health profession.
"voluntary notification" means a complaint or other notification made under Part 8, other than a mandatory notification.
State means the Crown in right of this jurisdiction, and includes -
(b) a Minister of the Crown in right of this jurisdiction; and
(c) a statutory corporation, or other entity, representing the Crown in right of this jurisdiction.
(1) The Australian Health Practitioner Regulation Agency is established.
(a) is a body corporate with perpetual succession; and
(4) Schedule 3 sets out provisions relating to the National Agency.
The functions of the National Agency are as follows -
(a) to provide administrative assistance and support to the National Boards, and the Boards' committees, in exercising their functions;
(b) in consultation with the National Boards, to develop and administer procedures for the purpose of ensuring the efficient and effective operation of the National Boards;
(c) to establish procedures for the development of accreditation standards, registration standards and codes and guidelines approved by National Boards, for the purpose of ensuring the national registration and accreditation scheme operates in accordance with good regulatory practice;
(d) to negotiate in good faith with, and attempt to come to an agreement with, each National Board on the terms of a health profession agreement;
(e) to establish and administer an efficient procedure for receiving and dealing with applications for registration as a health practitioner and other matters relating to the registration of registered health practitioners;
(f) in conjunction with the National Boards, to keep up-to-date and publicly accessible national registers of registered health practitioners for each health profession;
(g) in conjunction with the National Boards, to keep up-to-date national registers of students for each health profession;
(h) to keep an up-to-date and publicly accessible list of approved programs of study for each health profession;
(i) to establish an efficient procedure for receiving and dealing with notifications against persons who are or were registered health practitioners and persons who are students, including by establishing a national process for receiving notifications about registered health practitioners in all professions;
(j) to provide advice to the Ministerial Council in connection with the administration of the national registration and accreditation scheme;
(k) if asked by the Ministerial Council, to give to the Ministerial Council the assistance or information reasonably required by the Ministerial Council in connection with the administration of the national registration and accreditation scheme;
(l) any other function given to the National Agency by or under this Law.
(1) The National Agency must enter into an agreement (a health profession agreement) with a National Board that makes provision for the following -
(a) the fees that will be payable under this Law by health practitioners and others in respect of the health profession for which the Board is established (including arrangements relating to refunds of fees, waivers of fees and additional fees for late payment);
(b) the annual budget of the National Board (including the funding arrangements for its committees and accreditation authorities);
(c) the services to be provided to the National Board by the National Agency to enable the National Board to carry out its functions under this Law.
(2) If the National Agency and a National Board are unable to agree on a matter relating to a health profession agreement or a proposed health profession agreement, the Ministerial Council may give directions to the National Agency and National Board about how the dispute is to be resolved.
(3) Each National Board must publish on its website the fees for which provision has been made in a health profession agreement between the Board and the National Agency.
(1) Each of the following National Health Practitioner Boards is established for the health profession listed beside that Board in the following Table -
Aboriginal and Torres Strait Islander Health Practice Board of Australia
Aboriginal and Torres Strait Islander health practice
dental (including the profession of a dentist, dental therapist, dental hygienist, dental prosthetist or oral health therapist)
(a) is a body corporate with perpetual succession; and
(1) Subject to subsection (2), a National Board has the powers necessary to enable it to exercise its functions.
(c) acquire, hold, dispose of, and deal with, real property.
(3) The National Board may exercise any of its functions in co-operation with or with the assistance of a participating jurisdiction or the Commonwealth, including in co-operation with or with the assistance of any of the following -
(a) a government agency of a participating jurisdiction or of the Commonwealth;
(e) an educational body or other body established by or under a law of a participating jurisdiction or the Commonwealth.
(a) ask an entity referred to in subsection (3) for information that the Board requires to exercise its functions under this Law; and
(b) use the information to exercise its functions under this Law.
(5) An entity referred to in subsection (3) that receives a request for information from the National Board is authorised to give the information to the National Board.
(1) A National Board is to consist of members appointed in writing by the Ministerial Council.
(2) Members of a National Board are to be appointed as practitioner members or community members.
(3) Subject to this section, the Ministerial Council may decide the size and composition of a National Board.
(4) At least half, but not more than two-thirds, of the members of a National Board must be persons appointed as practitioner members.
(5) The practitioner members of a National Board must consist of -
(a) at least one member from each large participating jurisdiction; and
(b) at least one member from a small participating jurisdiction.
(6) At least 2 of the members of a National Board must be persons appointed as community members.
(7) At least one of the members of a National Board must live in a regional or rural area.
(8) A person cannot be appointed as a member of a National Board if the person is a member of the Agency Management Committee.
(9) One of the practitioner members of the National Board is to be appointed as Chairperson of the Board by the Ministerial Council.
(10) Schedule 4 sets out provisions relating to a National Board.
large participating jurisdiction means any of the following States that is a participating jurisdiction -
small participating jurisdiction means any of the following States or Territories that is a participating jurisdiction -
(1) The functions of a National Board established for a health profession are as follows -
(a) to register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession;
(b) to decide the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession;
(c) to develop or approve standards, codes and guidelines for the health profession, including -
(i) the approval of accreditation standards developed and submitted to it by an accreditation authority; and
(ii) the development of registration standards for approval by the Ministerial Council; and
(iii) the development and approval of codes and guidelines that provide guidance to health practitioners registered in the profession;
(d) to approve accredited programs of study as providing qualifications for registration or endorsement in the health profession;
(e) to oversee the assessment of the knowledge and clinical skills of overseas trained applicants for registration in the health profession whose qualifications are not approved qualifications for the profession, and to determine the suitability of the applicants for registration in Australia;
(f) to negotiate in good faith with, and attempt to come to an agreement with, the National Agency on the terms of a health profession agreement;
(g) to oversee the receipt, assessment and investigation of notifications about persons who -
(i) are or were registered as health practitioners in the health profession under this Law or a corresponding prior Act; or
(h) to establish panels to conduct hearings about -
(i) health and performance and professional standards matters in relation to persons who are or were registered in the health profession under this Law or a corresponding prior Act; and
(ii) health matters in relation to students registered by the Board;
(i) to refer matters about health practitioners who are or were registered under this Law or a corresponding prior Act to responsible tribunals for participating jurisdictions;
(j) to oversee the management of health practitioners and students registered in the health profession, including monitoring conditions, undertaking and suspensions imposed on the registration of the practitioners or students;
(k) to make recommendations to the Ministerial Council about the operation of specialist recognition in the health profession and the approval of specialties for the profession;
(l) in conjunction with the National Agency, to keep up-to-date and publicly accessible national registers of registered health practitioners for the health profession;
(m) in conjunction with the National Agency, to keep an up-to-date national register of students for the health profession;
(n) at the Board's discretion, to provide financial or other support for health programs for registered health practitioners and students;
(o) to give advice to the Ministerial Council on issues relating to the national registration and accreditation scheme for the health profession;
(p) if asked by the Ministerial Council, to give to the Ministerial Council the assistance or information reasonably required by the Ministerial Council in connection with the national registration and accreditation scheme;
(q) to do anything else necessary or convenient for the effective and efficient operation of the national registration and accreditation scheme;
(r) any other function given to the Board by or under this Law.
(2) For the purposes of subsection (1) (g)-(j), the Board's functions do not include receiving notifications and taking action referred to in those paragraphs in relation to behaviour by a registered health practitioner or student that occurred, or is reasonably believed to have occurred, in a co-regulatory jurisdiction.
(1) A National Board may establish a committee (a State or Territory Board) for a participating jurisdiction to enable the Board to exercise its functions in the jurisdiction in a way that provides an effective and timely local response to health practitioners and other persons in the jurisdiction.
(2) A State or Territory Board is to be known as the "[Name of participating jurisdiction for which it is established] Board" of the National Board.
(3) The members of a State or Territory Board are to be appointed by the responsible Minister for the participating jurisdiction.
(a) The Pharmacy Board of Australia decides to establish a State or Territory Board for New South Wales. The State or Territory Board will be known as the New South Wales Board of the Pharmacy Board of Australia. The members of the State or Territory Board will be appointed by the responsible Minister for New South Wales.
(b) The Podiatry Board of Australia decides to establish a State or Territory Board for Queensland and the Northern Territory. The State or Territory Board will be known as the Queensland and Northern Territory Board of the Podiatry Board of Australia. The members of the State or Territory Board will be appointed jointly by the responsible Ministers for Queensland and the Northern Territory.
(4) In deciding whether to appoint a person as a member of a State or Territory Board, the responsible Minister is to have regard to the skills and experience of the person that are relevant to the Board's functions.
(5) At least half, but not more than two-thirds, of the members of a State or Territory Board must be persons appointed as practitioner members.
(6) At least 2 of the members of a State or Territory Board must be persons appointed as community members.
Note See section 299 which provides that subsections (5) and (6) do not apply to a State or Territory Board for a jurisdiction for the first 12 months after the jurisdiction becomes a participating jurisdiction.
(7) Before a responsible Minister appoints a member of a State or Territory Board the vacancy to be filled is to be publicly advertised.
(8) The National Agency may assist a responsible Minister in the process of appointing members of a State or Territory Board, including in the advertising of vacancies.
(9) It is not necessary to advertise a vacancy in the membership of a State or Territory Board before appointing a person to act in the office of a member.
Note The general interpretation provisions applicable to this Law under section 6 confer power to appoint acting members of a State or Territory Board.
(10) This section does not limit clause 11 of Schedule 4.
Note Clause 11 of Schedule 4 confers power for the establishment of other committees.
(1) A National Board may delegate any of its functions, other than this power of delegation, to -
(c) a member of the staff of the National Agency; or
(d) a person engaged as a contractor by the National Agency.
(2) The National Agency may subdelegate any function delegated to the National Agency by a National Board to a member of the staff of the National Agency.
Subdivision 1 Endorsement in relation to scheduled medicines
(1) A National Board may, in accordance with an approval given by the Ministerial Council under section 14, endorse the registration of a registered health practitioner registered by the Board as being qualified to administer, obtain, possess, prescribe, sell, supply or use a scheduled medicine or class of scheduled medicines if the practitioner -
(a) holds either of the following qualifications relevant to the endorsement -
(ii) another qualification that, in the Board's opinion, is substantially equivalent to, or based on similar competencies to, an approved qualification; and
(b) complies with any approved registration standard relevant to the endorsement.
Note The endorsement of a health practitioner's registration under this section indicates the practitioner is qualified to administer, obtain, possess, prescribe, sell, supply or use the scheduled medicine or class of medicines specified in the endorsement but does not authorise the practitioner to do so. The authorisation of a health practitioner to administer, obtain, possess, prescribe, sell, supply or use scheduled medicines in a participating jurisdiction will be provided for by or under another Act of that jurisdiction.
Health practitioners registered in certain health professions will be authorised to administer, obtain, possess, prescribe, sell, supply or use scheduled medicines by or under an Act of a participating jurisdiction without the need for the health practitioners to hold an endorsement under this Law.
(2) An endorsement under subsection (1) must state -
(a) the scheduled medicine or class of scheduled medicines to which the endorsement relates; and
(b) whether the registered health practitioner is qualified to administer, obtain, possess, prescribe, sell, supply or use the scheduled medicine or class of scheduled medicines; and
(c) if the endorsement is for a limited period, the date the endorsement expires.
Subdivision 2 Endorsement in relation to nurse practitioners
(1) The Nursing and Midwifery Board of Australia may endorse the registration of a registered health practitioner whose name is included in the Register of Nurses as being qualified to practise as a nurse practitioner if the practitioner -
(a) holds either of the following qualifications relevant to the endorsement -
(ii) another qualification that, in the Board's opinion, is substantially equivalent to, or based on similar competencies to, an approved qualification; and
(b) complies with any approved registration standard relevant to the endorsement.
(2) An endorsement under subsection (1) must state -
(a) that the registered health practitioner is entitled to use the title "nurse practitioner"; and
(b) any conditions applicable to the practice by the registered health practitioner as a nurse practitioner.
Subdivision 3 Endorsement in relation to midwife practitioners
(1) The Nursing and Midwifery Board of Australia may endorse the registration of a registered health practitioner whose name is included in the Register of Midwives as being qualified to practise as a midwife practitioner if the practitioner -
(a) holds either of the following qualifications relevant to the endorsement -
(ii) another qualification that, in the Board's opinion, is substantially equivalent to, or based on similar competencies to, an approved qualification; and
(b) complies with any approved registration standard relevant to the endorsement.
(2) An endorsement under subsection (1) must state -
(a) that the registered health practitioner is entitled to use the title "midwife practitioner"; and
(b) any conditions applicable to the practice by the registered health practitioner as a midwife practitioner.
Subdivision 4 Endorsement in relation to acupuncture
(1) A National Board may endorse the registration of a registered health practitioner registered by the Board as being qualified to practise as an acupuncturist if the practitioner -
(a) holds either of the following qualifications relevant to the endorsement -
(ii) another qualification that, in the Board's opinion, is substantially equivalent to, or based on similar competencies to, an approved qualification; and
(b) complies with an approved registration standard relevant to the endorsement.
(2) An endorsement under subsection (1) must state -
(a) that the registered health practitioner is entitled to use the title "acupuncturist"; and
(b) any conditions applicable to the practice of acupuncture by the registered health practitioner.
Subdivision 5 Endorsements in relation to approved areas of practice
(1) A National Board established for a health profession may, in accordance with an approval given by the Ministerial Council under section 15, endorse the registration of a registered health practitioner registered by the Board as being qualified to practise in an approved area of practice for the health profession if the practitioner -
(a) holds either of the following qualifications relevant to the endorsement -
(ii) another qualification that, in the Board's opinion, is substantially equivalent to, or based on similar competencies to, an approved qualification; and
(b) complies with an approved registration standard relevant to the endorsement.
(2) An endorsement under subsection (1) must state -
(a) the approved area of practice to which the endorsement relates; and
(b) any conditions applicable to the practice by the registered health practitioner in the approved area of practice.
(1) An individual may apply to a National Board for endorsement of the individual's registration.
(a) be in the form approved by the National Board; and
(c) be accompanied by any other information reasonably required by the Board.
(3) For the purposes of subsection (2) (c), the information a National Board may require an applicant to provide includes -
(a) evidence of the qualifications in the health profession the applicant believes qualifies the applicant for endorsement; and
(b) evidence of successful completion of any period of supervised practice required by an approved registration standard; and
(c) if the applicant is required to complete an examination or assessment set by or on behalf of the Board, evidence of the successful completion of the examination or assessment.
(1) Before deciding an application for endorsement, a National Board may -
(a) investigate the applicant, including, for example, by asking an entity -
(i) to give the Board information about the applicant; or
(ii) to verify information or a document that relates to the applicant; or
(b) by written notice to the applicant, require the applicant to give the Board, within a reasonable time stated in the notice, further information or a document the Board reasonably requires to decide the application; or
(c) by written notice to the applicant, require the applicant to attend before the Board, within a reasonable time stated in the notice and at a reasonable place, to answer any questions of the Board relating to the application; or
(d) by written notice to the applicant, require the applicant to undergo a written, oral or practical examination, within a reasonable time stated in the notice and at a reasonable place.
(2) The purpose of an examination under subsection (1) (d) must be to assess the applicant's ability to practise the health profession in accordance with the endorsement sought.
(3) The applicant is taken to have withdrawn the application if, within the stated time, the applicant does not comply with a requirement under subsection (1).
(1) If, after considering an application for endorsement of a registration, a National Board is proposing to refuse to endorse the applicant's registration or to endorse the applicant's registration subject to a condition, the Board must give the applicant written notice of the proposal.
(b) invite the applicant to make a written or verbal submission to the Board by the date stated in the notice, being not less than 30 days after the day the notice is given to the applicant, about the proposal.
(1) After considering an application for endorsement and any submissions made in accordance with a notice under section 101, a National Board must decide to endorse, or refuse to endorse, the applicant's registration as sought.
(2) Without limiting subsection (1), a National Board may refuse to endorse an applicant's registration if -
(a) the applicant is not qualified for the endorsement under a relevant section; or
(b) the Board considers the applicant is not competent to practise the health profession in accordance with the endorsement sought.
relevant section means section 94, 95, 96, 97 or 98.
(1) If a National Board decides to endorse the applicant's registration under section 102, the Board may decide to impose on the endorsement the conditions the Board considers necessary or desirable in the circumstances.
Note A failure by a registered health practitioner to comply with a condition of the practitioner's registration does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken.
(2) If the National Board decides to impose a condition on the endorsement, the Board must also decide a review period for the condition.
(1) As soon as practicable after making the decision under section 102, the National Board must -
(a) give the applicant written notice of the Board's decision; and
(b) if the Board decides to endorse the applicant's registration, give the applicant a new certificate of registration.
(2) If the Board decides not to endorse the applicant's registration or decides to endorse the applicant's registration subject to a condition, the notice under subsection (1) (a) must state -
(b) that the applicant may appeal against the decision; and
(c) how an application for appeal may be made and the period within which the application must be made.
If a National Board decides to endorse a registered health practitioner's registration, the endorsement -
(b) expires when the practitioner's registration ends.
If a National Board fails to decide an application for endorsement within 90 days after its receipt, or the longer period agreed between the Board and the applicant, the failure by the Board to make a decision is taken to be a decision to refuse to endorse the applicant's registration.
Subdivision 2 Review of conditions and undertakings
(1) A registered health practitioner or student may apply to a National Board that registered the practitioner or student -
(i) to change or remove a condition imposed on the practitioner's registration or endorsement; or
(ii) to change or revoke an undertaking given by the practitioner; or
(i) to change or remove a condition imposed on the student's registration; or
(ii) to change or revoke an undertaking given by the student to the Board.
(2) However, the registered health practitioner or student may not make an application -
(a) during a review period applying to the condition or undertaking, unless the practitioner or student reasonably believes there has been a material change in the practitioner's or student's circumstances; or
(b) for a condition imposed by an adjudication body for a co-regulatory jurisdiction, unless the adjudication body decided, when imposing the condition, that this Subdivision applied to the condition.
(a) be in the form approved by the National Board; and
(b) be accompanied by any other information reasonably required by the Board.
(4) For the purposes of deciding the application, the National Board may exercise a power under section 80 as if the application were an application for registration as a registered health practitioner.
(5) The National Board must decide to grant the application or refuse to grant the application.
(6) As soon as practicable after making the decision under subsection (5), the National Board must give the registered health practitioner or student written notice of the Board's decision.
(7) If the National Board decides to refuse to grant the application, the notice must state -
(b) that the registered health practitioner or student may appeal against the decision; and
(c) how an application for appeal may be made and the period within which the application must be made.
(1) This section applies if a person was, but is no longer, registered in a health profession under this Law.
(2) A notification may be made, and proceedings may be taken, under this Part in relation to the person's behaviour while registered as if the person were still registered under this Law by the National Board established for the health profession.
(3) For the purposes of subsection (2), this Part (other than Divisions 2 and 6) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person.
(a) was registered in a health profession under a corresponding prior Act; and
(b) is not, and has not been, registered in the health profession under this Law.
(2) A notification may be made, and proceedings may be taken, under this Part in relation to the person's behaviour while registered under the corresponding prior Act as if the person were registered under this Law by the National Board established for the health profession.
(3) However, subsection (2) applies only to the extent -
(a) a notification about the person's behaviour could have been made under the corresponding prior Act; and
(b) proceedings of that type could have been taken under the corresponding prior Act.
(4) For the purposes of subsection (2), this Part (other than Divisions 2 and 7) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person.
notifiable conduct, in relation to a registered health practitioner, means the practitioner has -
(a) practised the practitioner's profession while intoxicated by alcohol or drugs; or
(b) engaged in sexual misconduct in connection with the practice of the practitioner's profession; or
(c) placed the public at risk of substantial harm in the practitioner's practice of the profession because the practitioner has an impairment; or
(d) placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.
(1) This section applies to a registered health practitioner (the first health practitioner) who, in the course of practising the first health practitioner's profession, forms a reasonable belief that -
(a) another registered health practitioner (the second health practitioner) has behaved in a way that constitutes notifiable conduct; or
(b) a student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm.
(2) The first health practitioner must, as soon as practicable after forming the reasonable belief, notify the National Agency of the second health practitioner's notifiable conduct or the student's impairment.
Note See section 237 which provides protection from civil, criminal and administrative liability for persons who, in good faith, make a notification under this Law. Section 237 (3) provides that the making of a notification does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct and nor is any liability for defamation incurred.
(3) A contravention of subsection (2) by a registered health practitioner does not constitute an offence but may constitute behaviour for which action may be taken under this Part.
(4) For the purposes of subsection (1), the first health practitioner does not form the reasonable belief in the course of practising the profession if -
(i) is employed or otherwise engaged by an insurer that provides professional indemnity insurance that relates to the second health practitioner or student; and
(ii) forms the reasonable belief the second health practitioner has behaved in a way that constitutes notifiable conduct, or the student has an impairment, as a result of a disclosure made by a person to the first health practitioner in the course of a legal proceeding or the provision of legal advice arising from the insurance policy; or
(b) the first health practitioner forms the reasonable belief in the course of providing advice in relation to the notifiable conduct or impairment for the purposes of a legal proceeding or the preparation of legal advice; or
(c) the first health practitioner is a legal practitioner and forms the reasonable belief in the course of providing legal services to the second health practitioner or student in relation to a legal proceeding or the preparation of legal advice in which the notifiable conduct or impairment is an issue; or
(i) forms the reasonable belief in the course of exercising functions as a member of a quality assurance committee, council or other body approved or authorised under an Act of a participating jurisdiction; and
(ii) is unable to disclose the information that forms the basis of the reasonable belief because a provision of that Act prohibits the disclosure of the information; or
(e) the first health practitioner knows, or reasonably believes, the National Agency has been notified of the notifiable conduct or impairment that forms the basis of the reasonable belief.
(1) If an employer of a registered health practitioner reasonably believes the health practitioner has behaved in a way that constitutes notifiable conduct, the employer must notify the National Agency of the notifiable conduct.
Note See section 237 which provides protection from civil, criminal and administrative liability for persons who, in good faith, make a notification under this Law. Section 237 (3) provides that the making of a notification does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct and nor is any liability for defamation incurred.
(2) If the National Agency becomes aware that an employer of a registered health practitioner has failed to notify the Agency of notifiable conduct as required by subsection (1), the Agency must give a written report about the failure to the responsible Minister for the participating jurisdiction in which the notifiable conduct occurred.
(3) As soon as practicable after receiving a report under subsection (2), the responsible Minister must report the employer's failure to notify the Agency of the notifiable conduct to a health complaints entity, the employer's licensing authority or another appropriate entity in that participating jurisdiction.
employer, of a registered health practitioner, means an entity that employs the health practitioner under a contract of employment or a contract for services.
licensing authority, of an employer, means an entity that under a law of a participating jurisdiction is responsible for licensing, registering or authorising the employer to conduct the employer's business.
(1) An education provider must notify the National Agency if the provider reasonably believes -
(a) a student enrolled in a program of study provided by the provider has an impairment that, in the course of the student undertaking clinical training as part of the program of study, may place the public at substantial risk of harm; or
(b) a student for whom the education provider has arranged clinical training has an impairment that, in the course of the student undertaking the clinical training, may place the public at substantial risk of harm;
Note See section 237 which provides protection from civil, criminal and administrative liability for persons who make a notification under this Law. Section 237 (3) provides that the making of a notification does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct and nor is any liability for defamation incurred.
(2) A contravention of subsection (1) does not constitute an offence.
(3) However, if an education provider does not comply with subsection (1) -
(a) the National Board that registered the student must publish details of the failure on the Board's website; and
(b) the National Agency may, on the recommendation of the National Board, include a statement about the failure in the Agency's annual report.
(1) A voluntary notification about a registered health practitioner may be made to the National Agency on any of the following grounds -
(a) that the practitioner's professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner's professional peers;
(b) that the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the practitioner's health profession is, or may be, below the standard reasonably expected;
(c) that the practitioner is not, or may not be, a suitable person to hold registration in the health profession, including, for example, that the practitioner is not a fit and proper person to be registered in the profession;
(d) that the practitioner has, or may have, an impairment;
(e) that the practitioner has, or may have, contravened this Law;
(f) that the practitioner has, or may have, contravened a condition of the practitioner's registration or an undertaking given by the practitioner to a National Board;
(g) that the practitioner's registration was, or may have been, improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular.
(2) A voluntary notification about a student may be made to the National Agency on the grounds that -
(a) the student has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or
(b) the student has, or may have, an impairment; or
(c) that the student has, or may have, contravened a condition of the student's registration or an undertaking given by the student to a National Board.
Any entity that believes that a ground on which a voluntary notification may be made exists in relation to a registered health practitioner or a student may notify the National Agency.
Note See section 237 which provides protection from civil, criminal and administrative liability for persons who, in good faith, make a notification under this Law.
(1) A notification may be made to the National Agency -
(b) in writing, including by email or other electronic means.
(2) A notification must include particulars of the basis on which it is made.
(3) If a notification is made verbally, the National Agency must make a record of the notification.
(1) The National Agency must, if asked by an entity, give the entity reasonable assistance to make a notification about a registered health practitioner or student.
(2) Without limiting subsection (1), the National Agency may assist an entity to make a notification if -
(a) the entity is not able to put the entity's notification in writing without assistance; or
(b) the entity needs assistance to clarify the nature of the individual's notification.
(1) Subject to subsections (2) and (3), the National Agency must, as soon as practicable after receiving a notification about a registered health practitioner or a student, refer the notification to the National Board that registered the health practitioner or student.
(2) If the behaviour that is the basis for the ground for the notification occurred, or is reasonably believed to have occurred, in a co-regulatory jurisdiction, the National Agency -
(b) must, as soon as practicable after receiving the notification, refer the notification to the co-regulatory authority for the co-regulatory jurisdiction.
(3) If the behaviour that is the basis for the ground for the notification occurred, or is reasonably believed to have occurred, in more than one jurisdiction and one of the jurisdictions is a co-regulatory jurisdiction, the National Agency must -
(a) if the registered health practitioner's principal place of practice is in the co-regulatory jurisdiction, refer the notification under subsection (2); or
(b) otherwise, refer the notification under subsection (1).
(1) A National Board must, within 60 days after receipt of a notification, conduct a preliminary assessment of the notification and decide -
(a) whether or not the notification relates to a person who is a health practitioner or a student registered by the Board; and
(b) whether or not the notification relates to a matter that is a ground for notification; and
(c) if the notification is a notification referred to in paragraphs (a) and (b), whether or not it is a notification that could also be made to a health complaints entity.
(2) Without limiting subsection (1) (b), the National Board may decide the notification relates to a matter that is a ground for notification under section 144 on the basis of -
(b) a number of notifications about a person including -
(i) a number of notifications that suggest a pattern of conduct; and
(ii) notifications made to a health complaints entity.
(3) If the National Board decides the notification relates to a person who is not registered by the Board but the Board reasonably suspects the person is registered by another National Board, the Board must refer the notification to that other Board.
(1) If a National Board receives a complaint, the board must, as soon as practicable after its receipt -
(a) notify the health complaints entity that the Board has received the notification; and
(i) a copy of the notification or, if the notification was not made in writing, a copy of the National Agency's record of the details of the notification; and
(ii) any other information the Board has that is relevant to the notification.
(2) If a health complaints entity receives a complaint about a health practitioner, the health complaints entity must, as soon as practicable after its receipt -
(a) notify the National Board established for the practitioner's health profession that the health complaints entity has received the complaint; and
(i) a copy of the complaint or, if the complaint was not made in writing, a copy of the health complaints entity's record of the details of the complaint; and
(ii) any other information the health complaints entity has that is relevant to the complaint.
(3) The National Board and the health complaints entity must attempt to reach agreement about how the notification or complaint is to be dealt with, including -
(a) whether the Board is to deal with the notification or complaint, or part of the notification or complaint, or to decide to take no further action in relation to it; and
(b) if the Board is to deal with the notification or complaint or part of the notification or complaint, the action the Board is to take.
(4) If the National Board and the health complaints entity are not able to reach agreement on how the notification or complaint, or part of the notification or complaint, is to be dealt with, the most serious action proposed by either must be taken.
(4A) The action that may be taken in relation to a notification or complaint, or part of a notification or complaint, from most serious to least serious, is as follows:
(a) deal with the notification or complaint, or part, under part 8, division 7 (Immediate action);
(b) refer the notification or complaint, or part, to the responsible tribunal under part 8, division 12 (Referring matter to responsible tribunals);
(c) refer the notification or complaint, or part, to the health complaints entity to be considered under the Human Rights Commission Act 2005;
(d) investigate the notification or complaint, or part, under part 8, division 8 (Investigations);
(e) deal with the notification or complaint, or part, as a professional standards matter under part 8, division 11 (Panels);
(f) deal with the notification or complaint, or part, as a health matter under part 8, division 11 (Panels);
(g) take action under part 8, division 10 (Action by National Board);
(h) decide to take no further action in relation to the notification, complaint, or part, in accordance with section 151 (When National Board may decide to take no further action).
(5) If an investigation or other action, other than conciliation, taken by a health complaints entity raises issues about the health, conduct or performance of a registered health practitioner, the health complaints entity must give the National Board that registered the practitioner written notice of the issues.
(5A) If a notification or complaint is referred to the health complaints entity for consideration under subsection (4A) (c), the health complaints entity must report the results of the consideration to the National Board as soon as practicable.
(6) If a notification, or part of a notification, received by a National Board is referred to a health complaints entity, the Board may decide to take no further action in relation to the notification or the part of the notification until the entity gives the Board written notice that the entity has finished dealing with it.
(7) If a National Board or an adjudication body takes health, conduct or performance action in relation to a registered health practitioner, the Board that registered the practitioner must give written notice of the action to the health complaints entity for the participating jurisdiction in which the behaviour that provided the basis for the action occurred.
(8) A written notice under subsection (5) or (7) must include -
(a) sufficient particulars to identify the registered health practitioner; and
(i) the issues raised about the health, conduct or performance of the registered health practitioner; or
(ii) the health, conduct or performance action taken in relation to the registered health practitioner.
(1) Subject to section 150, a National Board may decide to take no further action in relation to a notification if -
(a) the Board reasonably believes the notification is frivolous, vexatious, misconceived or lacking in substance; or
(b) given the amount of time that has elapsed since the matter the subject of the notification occurred, it is not practicable for the Board to investigate or otherwise deal with the notification; or
(c) the person to whom the notification relates has not been, or is no longer, registered by the Board and it is not in the public interest for the Board to investigate or otherwise deal with the notification; or
(d) the subject matter of the notification has already been dealt with adequately by the Board; or
(e) the subject matter of the notification is being dealt with, or has already been dealt with, adequately by another entity.
(2) A decision by a National Board to decide to take no further action in relation to a notification does not prevent a National Board or adjudication body taking the notification into consideration at a later time as part of a pattern of conduct or practice by the health practitioner.
(3) If a National Board decides to take no further action in relation to a notification it must give written notice of the decision to the notifier.
(a) that the National Board has decided to take no further action in relation to the notification; and
(b) the reason the Board has decided to take no further action.
immediate action, in relation to a registered health practitioner or student, means -
(a) the suspension, or imposition of a condition on, the health practitioner's or student's registration; or
(b) accepting an undertaking from the health practitioner or student; or
(c) accepting the surrender of the health practitioner's or student's registration.
(1) A National Board may take immediate action in relation to a registered health practitioner or student registered by the Board if -
(i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety; or
(i) the student poses a serious risk to persons because the student -
(A) has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or
(C) has, or may have, contravened a condition of the student's registration or an undertaking given by the student to a National Board; and
(ii) it is necessary to take immediate action to protect public health or safety; or
(c) the registered health practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular; or
(d) the registered health practitioner's or student's registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction.
(2) However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner's or student's registration only if the Board has complied with section 157.
(1) If a National Board is proposing to take immediate action that consists of suspending, or imposing a condition on, a registered health practitioner's or student's registration under section 156, the Board must -
(a) give the practitioner or student notice of the proposed immediate action; and
(b) invite the practitioner or student to make a submission to the Board, within the time stated in the notice about the proposed immediate action.
(2) A notice given to a registered health practitioner or student under subsection (1), and any submissions made by the practitioner or student in accordance with the notice, may be written or verbal.
(3) The National Board must have regard to any submissions made by the registered health practitioner or student in accordance with this section in deciding whether to take immediate action in relation to the practitioner or student.
(1) Immediately after deciding to take immediate action in relation to a registered health practitioner or student, the National Board must -
(a) give written notice of the Board's decision to the health practitioner or student; and
(b) take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner or student or requiring the practitioner or student to undergo a health or performance assessment.
(a) the immediate action the National Board has decided to take; and
(b) the reasons for the decision to take the immediate action; and
(c) the further action the National Board proposes to take under this Part in relation to the health practitioner or student; and
(d) that the registered health practitioner or student may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner's or student's registration; and
(e) how an application for appeal may be made and the period within which the application must be made.
(1) The decision by the National Board to take immediate action in relation to the registered health practitioner or student takes effect on -
(a) the day the notice is given to the practitioner or student; or
(2) The decision continues to have effect until the earlier of the following occurs -
(b) for the suspension of, or imposition of conditions on, the registered health practitioner's or student's registration, the suspension is revoked, or the conditions are removed, by the National Board; or
(c) for an undertaking, the National Board and the registered health practitioner or student agree to end the undertaking.
(1) Subject to section 150, a National Board may investigate a registered health practitioner or student registered by the Board if it decides it is necessary or appropriate -
(a) because the Board has received a notification about the practitioner or student; or
(b) because the Board for any other reason believes -
(i) the practitioner or student has or may have an impairment; or
(A) the way the practitioner practises the profession is or may be unsatisfactory; or
(B) the practitioner's conduct is or may be unsatisfactory; or
(i) is complying with conditions imposed on the practitioner's or student's registration; or
(ii) an undertaking given by the practitioner or student to the Board.
(2) If a National Board decides to investigate a registered health practitioner or student it must direct an appropriate investigator to conduct the investigation.
(1) A National Board that decides to investigate a registered health practitioner or student must, within as soon as practicable after making the decision, give the practitioner or student written notice about the investigation.
(2) The notice must advise the registered health practitioner or student of the nature of the matter being investigated.
(3) Also, the National Board must, at not less than 3 monthly intervals, give the written notice of the progress of the investigation to -
(a) the registered health practitioner or student; and
(b) if the investigation relates to a notification made about the registered health practitioner or student, the notifier.
(4) However, the National Board need not give the registered health practitioner or student a notice under subsection (1) or (3) if the Board reasonably believes giving the notice may -
(c) place a person at risk of harassment or intimidation.
The National Board must ensure an investigator it directs to conduct an investigation conducts the investigation as quickly as practicable, having regard to the nature of the matter to be investigated.
(1) A National Board may appoint the following persons as investigators -
(2) An investigator holds office on the conditions stated in the instrument of appointment.
(3) If an investigator's appointment provides for a term of appointment, the investigator ceases holding office at the end of the term.
(4) An investigator may resign by signed notice of resignation given to the National Board which appointed the investigator.
(5) Schedule 5 sets out provisions relating to the powers of an investigator.
(1) As soon as practicable after completing an investigation under this Division, an investigator must give a written report about the investigation to the National Board that directed the investigator to carry out the investigation.
(a) the investigator's findings about the investigation; and
(b) the investigator's recommendations about any action to be taken in relation to the health practitioner or student the subject of the investigation.
(3) The National Board to which the report is given must give a copy of the report to the health complaints entity as soon as practicable.
(1) The National Board must consider the investigator's report jointly with the health complaints entity and attempt to reach agreement on how the matter that is the subject of the report is to be dealt with.
(2) After consideration under subsection (1), the National Board must decide -
(a) to take no further action in relation to the matter; or
(i) take the action the Board considers necessary or appropriate under another Division;
(ii) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
(3) However, if the National Board and the health complaints entity are not able to reach agreement on how the matter is to be dealt with, the decision of the board under subsection (2) must be to take the most serious action proposed by either the board or the health complaints entity.
(4) The actions that may be taken in relation to the matter, from most serious to least serious, are the actions set out in section 150 (4A).
(1) If a National Board is proposing to take relevant action in relation to a registered health practitioner or student, the Board must -
(a) give the practitioner or student written notice of the proposed relevant action; and
(b) invite the practitioner or student to make a written or verbal submission to the Board, within the reasonable time stated in the notice, about the proposed relevant action.
(2) After considering any submissions made by the registered health practitioner or student in accordance with this section, the National Board must decide to -
(i) take the proposed relevant action or other relevant action;
(ii) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
(a) a National Board is proposing to take relevant action in relation to a registered health practitioner or student; and
(b) the National Board has, in relation to the matter that forms the basis for the relevant action -
(i) investigated the registered health practitioner or student under Division 8; or
(ii) conducted a health assessment or performance assessment of the registered health practitioner or student under Division 9.
Division 12 Referring matter to responsible tribunals
(1) A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if -
(a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason -
(i) the practitioner has behaved in a way that constitutes professional misconduct; or
(ii) the practitioner's registration was improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular; or
(b) for a registered health practitioner or student, a panel established by the Board requires the Board to refer the matter to a responsible tribunal.
(i) the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred; or
(ii) if the behaviour occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; and
(b) give written notice of the referral to the registered health practitioner or student to whom the matter relates.
The parties to proceedings relating to a matter being heard by a responsible tribunal are -
(a) the registered health practitioner or student who is the subject of the proceedings; and
(b) the National Board that referred the matter to the tribunal.
(1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision -
(a) a decision by a National Board to refuse to register the person;
(b) a decision by a National Board to refuse to endorse the person's registration;
(c) a decision by a National Board to refuse to renew the person's registration;
(d) a decision by a National Board to refuse to renew the endorsement of the person's registration;
(e) a decision by a National Board to impose or change a condition on a person's registration or the endorsement of the person's registration, other than -
(i) a condition relating to the person's qualification for general registration in the health profession; and
(f) a decision by a National Board to refuse to change or remove a condition imposed on the person's registration or the endorsement of the person's registration;
(g) a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board;
(h) a decision by a National Board to suspend the person's registration;
(i) a decision by a panel to impose a condition on the person's registration;
(j) a decision by a health panel to suspend the person's registration;
(k) a decision by a performance and professional standards panel to reprimand the person.
(2) For the purposes of subsection (1), the appropriate responsible tribunal for an appellable decision is -
(a) for a decision to take health, conduct or performance action in relation to a registered health practitioner or student -
(i) the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the decision occurred; or
(ii) if the behaviour the subject of the decision occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; or
(b) for another decision in relation to a registered health practitioner, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; or
(c) for another decision in relation to a student, the responsible tribunal for the participating jurisdiction in which the student is undertaking the approved program of study or clinical training; or
(i) the responsible tribunal for the participating jurisdiction in which the person lives, or
(ii) if the person does not live in a participating jurisdiction, the responsible tribunal for the participating jurisdiction nominated by the National Board that made the appellable decision and specified in the notice given to the person of the appellable decision.
The parties to proceedings relating to an appellable decision being heard by a responsible tribunal are -
(a) the person who is the subject of the appellable decision; and
(ii) established the panel that made the appellable decision.
The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
(1) After hearing the matter, the responsible tribunal may -
(c) substitute another decision for the appellable decision.
(2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.
This Division applies despite any provision to the contrary of the Act that establishes the responsible tribunal but does not otherwise limit that Act.
(1) If an adjudication body, other than a court, makes a decision in relation to a health practitioner or student registered in a health profession, it must give written notice of the decision to the National Board established for the profession.
(a) the decision made by the adjudication body; and
(d) any action the National Board must take to give effect to the decision.
(1) A National Board must give effect to a decision of an adjudication body unless the decision is stayed on appeal.
(2) Without limiting subsection (1), the National Board must, if the notice given to the Board states that a health practitioner's or student's registration is cancelled, remove the practitioner's or student's name from the appropriate register kept by the Board.
(i) decides to take health, conduct or performance action against a registered health practitioner; or
(ii) receives notice from an adjudication body that the adjudication body has decided to take health, conduct or performance action against a registered health practitioner; or
(iii) receives notice from a co-regulatory authority that an adjudication body in the co-regulatory jurisdiction has decided to take health, conduct or performance action against a registered health practitioner; and
(b) the National Board has been advised by the registered health practitioner that the practitioner is employed by another entity.
Note Under section 132, a National Board may ask a registered health practitioner to give the Board information about whether or not the practitioner is employed by another entity and, if so, for the employer's details.
(2) The National Board must, as soon as practicable after making the decision or receiving the notice, give written notice of the decision to take health, conduct or performance action against the registered health practitioner to the practitioner's employer.
If a person's registration as a health practitioner or student is suspended under this Law the person is taken during the period of suspension not to be registered under this Law, other than for the purposes of this Part.
4. Supreme Court Act 1933 (ACT)
20 Jurisdiction and powers of Supreme Court
(a) all original and appellate jurisdiction that is necessary to administer justice in the Territory;
(b) jurisdiction conferred by a Commonwealth Act or a law of the Territory.
(2) Unless it is required to do so by or under a Commonwealth Act or a law of the Territory, the court is not bound to exercise its powers if it has concurrent jurisdiction with another court or tribunal.
(1) The Supreme Court has power to grant any relief by way of a habeas corpus order or prerogative order.
habeas corpus order means an order the relief under which is in the nature of, and to the same effect as, relief by way of a writ of habeas corpus.
prerogative order means an order the relief under which is in the nature of, and to the same effect as, relief by way of -
(a) a writ of mandamus, prohibition or certiorari; or
(b) an information in the nature of quo warranto.
5. Supreme Court Act 1970 (NSW)
The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.
(1) On the application of a party to a proceeding, the court may, at any stage of the proceeding, make any order that the nature of the case requires.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
Note 2 Order is defined in the dictionary to include judgment (see also def made).
(2) The court may make the order even if there is no claim for relief extending to the order in the originating process, statement of claim, counterclaim or similar document.
(1) If, before the commencement of these rules, the court had jurisdiction to grant any relief by way of a writ of mandamus, prohibition or certiorari, or on an information in the nature of quo warranto, the court continues to have jurisdiction to grant the relief.
(2) However, the court may grant the relief only by making an order under these rules in the nature of, and to the same effect as, the relief that would have been available before the commencement of these rules.
(a) someone acts in an office in which the person is not entitled to act; and
(b) an information in the nature of quo warranto would, but for rule 3553 (2) (Judicial review - prerogative writs etc abolished), lie against the person;
(c) grant an injunction restraining the person from acting in the office; and
Note An example is part of these rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(1) A statutory order of review or prerogative relief must be sought by way of judicial review by originating application.
Note 1 See approved form 3.45 (Originating application - judicial review) AF2006-373.
Note 2 Div 2.2.3 (Originating applications) contains provisions about the content of originating applications, the filing and service of originating applications, etc. The division applies, subject to this part (see r 22 (Application - ch 2)), to an application for a statutory order of review or prerogative relief.
(a) if the grounds of the application include an allegation of fraud or bad faith - particulars of the fraud or bad faith on which the plaintiff relies; and
(b) if the application is an application for prerogative relief and the grounds of the application include an allegation of a mistake or omission in an order or proceeding - particulars of the mistake or omission on which the plaintiff relies; and
(c) if the application is for a quo warranto order in relation to a person's office - particulars of the objection to the person's entitlement to act in the office.
Note Rule 60 (3) (Originating application - content etc) provides that the originating application must state specifically the orders or other relief sought in the proceeding.
(3) A person may apply for prerogative relief if the person's interests are, or would be, adversely affected in or by the matter to which the application relates.
(4) A person must be included as a defendant to the application if -
(a) the application relates to a decision made by an entity authorised to make the decision, and the person -
(i) appeared, or was given leave to appear, before the entity; and
(ii) would be directly affected by the relief sought in the application or is interested in maintaining the decision; or
(b) for a statutory order of review - the application relates to conduct engaged in, or proposed to be engaged in, by an entity for the purpose of making a decision to which the Judicial Review Act applies, and the person -
(i) appeared, or was given leave to appear, before the entity; and
(ii) would be directly affected by the relief sought in the application or is interested in maintaining the decision; or
(c) for a statutory order of review - the application relates to a failure by an entity to make a decision to which the Judicial Review Act applies, and the person -
(i) appeared, or was given leave to appear, before the entity; and
(ii) would be directly affected by the relief sought in the application.
Note For an application for a statutory order of review, the Judicial Review Act, s 12 (Application to be made a party to a proceeding) provides that a person interested in a decision, conduct or failure in relation to which an application has been made to the Supreme Court under that Act may apply to the Supreme Court to be made a party to the application.
(5) If the application relates to an order of a judicial officer of a court or member of a tribunal, the application must name as defendant the court or tribunal and not the judicial officer or member personally.
(6) The application must be accompanied by a supporting affidavit.
(a) the grounds relied on in support of the relief sought; and
(8) If subrule (2) (b) applies, but has not been complied with, a ground mentioned in the subrule must not be relied on.
(9) If subrule (2) (c) applies, but has not been complied with, a ground mentioned in the subrule must not be relied on without the court's leave.
(a) any prerogative relief, declaration or injunction may be sought instead of, or in addition to, any other prerogative relief, declaration or injunction if it relates to the same matter; or
(b) the court may grant the prerogative relief, declaration or injunction it considers the most appropriate available, even if it is not included in the application.
Note For statutory orders of review, see the Judicial Review Act, s 8 (Effect of Act on other rights) and s 11 (Application for order of review not limited to grounds in application).
[10] National Law ss 35(1)(h), 35(1)(j).
[25] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581.
[26] Civil Procedure Rules 2006 (ACT) r 1600(2).
[27] Civil Procedure Rules 2006 (ACT) r 3559(b).
[31] [2013] ACTSC 121; (2013) 277 FLR 61, 80-1.
[32] Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35-6 (Brennan J); cited with approval in Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[33] Prescott v Legal Practitioners Disciplinary Tribunal [2009] SASC 309 [117].
[34] Momcilovic v The Queen (2011) 245 CLR 1, 61 (French CJ) citing Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[35] Forster v Jododex [1972] HCA 61; (1972) 127 CLR 421, 437 (Gibbs J).
[36] [1992] HCA 10; (1992) 175 CLR 564, 581-2; 595-6 (Brennan J concurring).
[38] (1995) 183 CLR 552, 558.
[39] [1949] HCA 33; (1949) 78 CLR 389, 400.
[40] Dibeek Holdings Pty Ltd v Notari (1997) 141 FLR 364, 374 (Higgins J); Australia and New Zealand Banking Group Limited v Manny & Ors [2013] ACTSC 116 (12 June 2013) [39].
[41] (1979) 190 CLR 142, 216; see, also 206-7 (Barwick CJ), 230-1 (Mason J, as he then was).
[42] See also Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 (12 December 2012) [119].
[43] See Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 580.
[44] Counsel for both parties relied upon the discussion in Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 5th ed, 2013) 781-783.
[45] Director-General, Department of Trade & Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436; (2012) 301 ALR 420, 450 - 451 (McColl JA); 451-452 (Sackville AJA).
[46] Director-General, Department of Trade & Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436; (2012) 301 ALR 420, 451-452 (Sackville AJA).
[47] Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435, 481 (Lord Wilberforce), 490 (Viscount Dilhorne), 497 (Lord Diplock).
[48] (1979) 24 ALR 411, 416.
[49] [2000] FCA 45; (2000) 97 FCR 9, 22.
[52] [2012] VSCA 295 (12 December 2012) [108] (disagreeing with decisions of the South Australian Health Practitioners Tribunal, the State Administrative Tribunal of Western Australia and the Tasmanian Health Practitioners Tribunal).
[53] [1990] HCA 21; (1989) 170 CLR 1, 35-36; cited with approval in Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[54] [2008] HCA 31; (2008) 235 CLR 286, 296-7.
[55] Commonwealth Administrative Review Committee, Report (August 1971) 50; See also, Peter Cane, Administrative Tribunals and Adjudication (Hart Publishing, 2010) 57-67.
[56] [2008] HCA 31; (2008) 235 CLR 286, 296-7.
[57] (1979) 46 FLR 409, 419 (this case concerned, inter alia, whether the Commonwealth Administrative Appeals Tribunal had made an independent assessment in relation to a deportation order made by the Minister against an alien).
[59] Dibeek Holdings Pty Ltd v Notari (1997) 141 FLR 364, 371.
[60] Dibeek Holdings Pty Ltd v Notari (1997) 141 FLR 364, 373.
[61] [2010] FCA 526 (17 May 2010).
[62] Schulman v Abbott Tout Lawyers (No 2) [2010] FCA 526 (17 May 2010) [17].
[64] See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 and the recent decision of the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618.
[65] [1984] HCA 29; (1984) 156 CLR 296, 326.
[66] [1949] 1 All ER 109, 118; approved by the High Court in NCSC v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296, 320 (noting approval in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 552-553).
[68] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, 437-438, 446.
[69] McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504, 517 (Basten JA).
[70] (1998) 84 FCR 87, 104.
[71] (2001) 205 CLR 507, 531- 532.
[72] Spencer v Bamber [2012] NSWCA 274 (5 September 2012) [16].
[73] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531, see also 563, 566 and 598.
[74] [2000] HCA 63; (2000) 205 CLR 337, 345 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[77] [2008] NSWCA 209; (2008) 72 NSWLR 504, 507-508.
[79] McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504, 524 (Basten JA).
[80] [2007] VSC 235; (2007) 27 VAR 271, 284.
[81] [1997] HCA 30; (1997) 191 CLR 1, 50-51; cited in McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504, 511.
[82] [2008] NSWCA 209; (2008) 72 NSWLR 504, 510 - 513 (Spigelman CJ); 523 (Basten JA), see also 553 - 557 (Campbell JA).
[84] [2008] NSWCA 209; (2008) 72 NSWLR 504, 511-512.
[88] [2009] NSWSC 1207 (12 November 2009).
[89] [2010] SASC 308 (9 November 2010).
[90] Taylor v The Medical Board of South Australia [2010] SASC 308 (9 November 2010) [24].
[91] Taylor v The Medical Board of South Australia [2010] SASC 308 (9 November 2010) [26].
[103] [2004] NSWCA (9 June 2004) 123 [54].
Hocking
Medical Board of Australia and Anor [2014] ACTSC 48
(1992) 175 CLR 564
(2012) 205 FCR 120
(2013) 87 ALJR 618
(1990) 170 CLR 1
(2001) 208 CLR 199
(1988) 194 CLR 247
(1988) 15 NSWLR 596
(2000) 97 FCR 9
(1997) 141 FLR 364
(1910) 10 CLR 243
(2012) 301 ALR 420
(1979) 46 FLR 409
(2013) 304 ALR 359
(2000) 205 CLR 337
(2004) 185 FLR 1
(2013) 277 FLR 61
(1972) 127 CLR 421
(1979) 24 ALR 411
(1997) 191 CLR 1
(2005) 224 CLR 44
(1998) 84 FCR 87
(1959) 101 CLR 298
(2008) 72 NSWLR 504
(2011) 244 CLR 427
(1996) 185 CLR 259
(2001) 205 CLR 507
(2011) 245 CLR 1
(1984) 156 CLR 296
(1969) 122 CLR 546
(1949) 78 CLR 389
(1979) 190 CLR 142
(2008) 235 CLR 286
(1995) 183 CLR 552
(2009) 231 FLR 224
(1972) 128 CLR 509
(1989) 170 CLR 1