The applicant largely relies on the submissions made above as to the circumstances. The applicant also referred to the general principle that there should be a predilection for 'not putting people out of business until they've had the opportunity to prosecute their review applications, but also noted that in cases regarding the regulation of professionals such as health practitioners, the public interest and the protection of the public from unsafe practitioners may, in an appropriate case, trump the question of whether or not refusing the stay will render the review nugatory'.
It was submitted that Dr Jayaweera's family are wholly reliant on his wife's income and her income is insufficient to meet the family's financial obligations including mortgage payments and school fees. The family's savings are almost depleted.
The Board submitted that if a stay was not granted, the review would not be rendered nugatory. The Board submitted that Dr Jayaweera was incorrect in arguing the conditions are a de facto suspension, as discussed above.
The Tribunal accepts that if the applicant succeeded on review, the applicant is likely to suffer some irreparable financial loss, as he is only currently able to work a small amount under the conditions imposed by the immediate action of the Board.
However, although this is the primary consideration, it is not the only consideration and needs to be balanced against other factors including the community interest.
[2]
Whether there is risk of prejudice accruing to either party by the grant or the refusal of a stay
[3]
As discussed above there is a risk of prejudice to Dr Jayaweera if a stay is not granted, as he would likely lose a large amount of his income.
There is a risk of prejudice to the Board if a stay is granted as the Board is charged with the protection of the public from the risks posed by medical practitioners.
[4]
Is there a serious question to be tried on review
[5]
In determining whether there is a serious question to be tried, the Tribunal must be careful in reaching any conclusions on the limited evidence before it at the stay hearing. There were also considerable contrary assertions made in the parties' submissions.
The Tribunal notes that at the final hearing of the review application, the relevant question for the Tribunal will be whether there is a reasonable belief that because of Dr Jayaweera's conduct, performance or health, he poses a serious risk to persons and it is necessary to take immediate action to protect public health and safety.
The Board submitted that if there is a serious question to be tried it is weak. It submitted that the decision was a lenient, orthodox response to a cogent notification about a significant breach of sexual boundaries.
On behalf of Dr Jayaweera, it was submitted that there is a serious question to be tried. The same allegations have been investigated by Victoria Police and they have decided not to lay criminal charges against him. Dr Jayaweera was interviewed by Victoria Police, denied the allegations and told the police about the consultation with the patient. Reliance was also placed on the clinical notes of the consultation. Further, it was submitted that the form of immediate action exceeds what is required to protect the public. Alternative conditions to gender-based restrictions could provide the required protection for the public. Further any form of immediate action does not need to encompass a bar on providing telehealth services. The gravamen of the allegation is making inappropriate physical contact with one female patient. There is no identifiable serious risk in the conduct of telehealth appointments.
The Tribunal is satisfied on the material before it that there is a dispute as to whether a reasonable belief can be formed that because of Dr Jayaweera's conduct, performance or health, he poses a serious risk to persons and it is necessary to take immediate action to protect public health and safety. While the decision of Victoria Police not to criminally charge Dr Jayaweera has little relevance to the forming of such a view, the matters taken into account by Victoria Polcie will be relevant, including Dr Jayaweera's police interview and clinical notes of the consultation. Perhaps more clearly in this case, there is a serious question to be tried as to the form of any immediate action to be imposed on Dr Jayaweera. Such decisions are by their nature often more finely calibrated and therefore arguable.
The Tribunal finds that there is a serious question to be tried at the final hearing, but can reach no further conclusion as to the strength or weakness of the applicant's case on the basis of the material put before the Tribunal at the stay hearing.
[6]
It is in the community interest to grant a stay is properly to be taken into account. This involves the balancing of private interests against the public interest
[7]
The Board submitted that in stay cases dealing with the conduct of a health practitioner, public interest and protection of the public from unsafe practitioners may well 'trump' the question of whether or not refusing a stay or granting the application will render the review proceedings nugatory.
The Board also submitted that the alleged conduct was a serious breach of sexual boundaries, demonstrates the practitioner poses a serious risk to patients and undermines public confidence in the profession.
On behalf of Dr Jayaweera, it was submitted that the Tribunal must accord paramountcy to the protection of the public in deciding this matter. This must be achieved with as little damage to Dr Jayaweera as possible. Dr Jayaweera has practiced safely and ethically for two decades. He is an experienced and highly regarded general practitioner, who has not previously been subject to such a complaint. It was submitted that the conduct was inherently unlikely to have occurred. The Tribunal was referred to the following passage from Molodov v Medical Board of Australia(Review and Regulation) [2021] VCAT 1026:
[8]
We are very mindful that the allegations are rejected by Dr Molodov.
It is relevant that the references provided by Dr Molodov evidence a respectful, professional practitioner with an otherwise unblemished history of practise. We agree that the sexualised conduct alleged would be very out of character with the person observed by multiple character referees in multiple settings. Whilst it was put by the Board that Dr Molodov's practice holds a vested interest in supporting Dr Molodov to ensure he continues to practise, we did not accept that a practice would do so above the safety of their own patients.
We agree with the submissions of Dr Molodov that, although there is clearly a basis for an investigation and potentially a referral to the Tribunal, in light of many years of practise after the time of the allegations, there is not an identifiable current risk necessitating immediate action.
We note the existence of a further protection. Dr Molodov will, through having engaged in these proceedings, be placed on high notice during the period of the investigation of the need to maintain appropriate boundaries
[9]
The private interests of Dr Jayaweera are his ability to earn a living and to remain in the profession in future. Dr Jayaweera might also have argued that there is a community interest in keeping medical practitioners in practice in regional areas, where it is safe to do so.
I am satisfied that there is a strong community interest in protecting the public from Dr Jayaweera until the final hearing and determination of the matter. I am not satisfied that the current conditions are the minimum necessary to ensure such protection. While the Tribunal cannot review the decisions made by the Board regarding the implementation of the current conditions it can take into account those matters when considering the minimum force necessary to protect the public.
[10]
The period of time which will elapse before the hearing of the application for review
[11]
This matter is currently set down for a final hearing of the review in May 2026.
The period of delay will negatively impact Dr Jayaweera, if a stay is not granted, as the current conditions restrict his ability to earn living.
[12]
The Tribunal is not satisfied considering the above matters that it should stay in full the current conditions on Dr Jayaweera's registration. It is satisfied that it should stay the current conditions on the basis of there being conditions on the stay.
The Board has refused to accept as a supervisor for Dr Jayaweera, a named senior colleague because that colleague is employed by a practitioner who has made statements to the Board that he was '99% certain of Dr Jayaweera's innocence and intends to pursue legal action against the patient, Ahpra and the Board'. The Board's position is that the colleague has a conflict of interest, as he is employed by the practitioner who made the statement. The colleague has made no such statement himself. The Tribunal considers the Board's position to be unreasonable. There is no basis for the Board to doubt the integrity of a registered medical practitioner merely due to statements made by their employer. The Board should accept, as the Tribunal does, that the senior practitioner, would abide by his commitments to supervise Dr Jayaweera and prioritise the safety and health of the patients of the practice.
The Tribunal will vary the conditions to authorise Dr Jayaweera to work at his regular clinic under the supervision of this senior colleague, with the other current restrictions in place, including the gender restrictions and the need for the practitioner to demonstrate to the Board how he would comply with the restrictions if he were providing telehealth service, before providing any telehealth services.
The Tribunal accepts that gender restrictions should stay in place as a proposal from Dr Jayaweera to not conduct breast, vulval, vaginal or anal examinations of females, would place the compliance with the condition in Dr Jayaweera's hands and not be able to be monitored by others. This would represent an unacceptable risk. The requirements of the protocols for Dr Jayaweera to explain how he will comply with the protocols at any location while undertaking telehealth services, should remain in place as some of the alleged conduct involved comments made by Dr Jayaweera to females and females could become involved in telehealth consultations without notice to anyone in the clinic apart from Dr Jayaweera.
The Tribunal is satisfied that these conditions are the minimum force necessary for the protection of the public until the hearing and determination of the review.
[13]
The Tribunal has therefore decided to grant a stay of the decision to impose the conditions on Dr Jayaweera's registration on the conditions contained in Schedule A to these reasons.
[14]
1. PROHIBITION ON PATIENT GROUP: SEX AND GENDER
[15]
1.1 From December 2025, the practitioner must not practise other than at practice location(s) that are approved and published below.
[16]
(a) Truganina Healthplus on the same basis as the Board approved this as a practice location on 21 November 2025;
(b) Carn-Brea Medical Clinic subject to Dr Frank Martin agreeing to be the senior person regarding Dr Jayaweera at that practice in accordance with the Ahpra Protocols or alternatively the Board approving an alternative senior person. To undertake telehealth services from this location the practitioner will need to demonstrate to the satisfaction of the Board how he would comply with the restrictions if he were providing telehealth service at that location;
[17]
(c) other practice locations approved by the Board.
[18]
1.2 After the commencement of these conditions, the practitioner must not have any contact with patients, including via telehealth, who:
[19]
1.2.1 have an assigned sex at birth and/or sex characteristics of female, or
[20]
1.2.2 identify their gender as a woman or girl, and/or
[21]
1.2.4 have not provided their assigned sex and gender.
[22]
1.3 The practitioner must comply with the Ahpra Protocol: Prohibition on patient group (sex and gender) in force at the date these conditions are imposed and then as updated from time to time, subject to conditions 1.1 and 1.2.
[23]
1.4 The practitioner must comply with the Ahpra Protocol: Practice limitations in force at the date these conditions are imposed and then as updated from time to time, subject to conditions 1.1 and 1.2.
[24]
[1] The Tribunal notes that this matter came in as an urgent stay application shortly before the Christmas break, with written submissions being provided shortly after the hearing. In the interests of the stay being dealt with urgently, these reasons are more succinct than usual considering the matters raised.
In summary, the submissions of the Board at the hearing in support of its interpretation of the relevant sections of the VCAT Act and the National Law, were as follows:
Section 50 of the VCAT Act is in direct conflict with section 159 of the National Law. Section 159 of the National Law provides for the decision to continue to have effect until certain events and the effect of section 50, is if the immediate action decision is stayed, the decision ceases to have effect.
Section 159 of the VCAT Act therefore applies and section 159(2) of the National Law prevails over section 50 of the VCAT Act.
The immediate action decision is a decision by an expert panel to have immediate effect to protect the health or safety of the public. It makes sense that the decision would continue to have effect unless and until there has been a decision by another expert body following a proper consideration of the merits.
Section 159(2) of the National Law does not contemplate a legal member of VCAT under a different test and using a different power to which the immediate action decision was made, to cause the immediate action decision to cease to have effect.
An immediate action decision is an interim decision and it defeats the purpose of section 156 of the National Law, if an immediate action decision is liable to be set aside on an interim basis. This would be the opposite of what was intended by section 156 of the National Law.
It makes sense that the scarce resources of the Tribunal and the parties are not spent on two hearings and decisions on the interim protection that should or should not be in place.
The construction of these provisions proposed by the Board is not unusual or novel. See for example Medical Council of New South Wales v Lee[2017] NSWCA 282 ('Lee') and Pathak.
The construction proposed by the Board would promote conformity in decision making. The National Law is a national scheme given effect by state based legislation, adopting the Queensland Act as model law. It is a national scheme where practitioners can expect to be treated the same way in each state. The decision in Pathak looks at some of the wording in section 159(2) of the National Law and answers some questions for the Tribunal.
It is desirable for there to be a uniformity of approach in dealing with uniform national legislation, see Hare v Commissioner of State Revenue (Taxation)[2006] VCAT 1054 ('').
The Tribunal considered the relevant principles of statutory interpretation. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 35; (1998) 194 CLR 355 ('Project Blue Sky') at [78] stated:
For the purpose of statutory interpretation words and expressions are not to be interpreted in isolation. They must be read in their statutory context, see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation[1981] HCA 26; (1981) 147 CLR 297 at 304 and Australian Securities and Investments Commission v Administrative Appeals Tribunal[2009] FCAFC 185 ('ASIC v AAT') at [20].
The principles of statutory interpretation include a number of rebuttable presumptions, for example, that a court should strive to give all words in a section some meaning and effect, see Project Blue Sky at [71]. A court must give words the construction that produces the greatest harmony and least inconsistency, see Australian Alliance Assurance Co v Attorney General (Qld)[1916] St R Qd 135 at 161.
Where legislation includes provisions for dealing with similar matters in different terms, a presumption exists that there is a deliberate intention to deal with them differently, see, for example, Salemi v MacKellar (No2) (1977) 137 CLR 396 at 432 and Heatley v Tasmanian Racing & Gaming Commission[1977] HCA 39; (1977) 137 CLR 487 ('Heatley') at 510. A specific application of this is the presumption that an express reference to a particular matter in a section and the absence of such a reference in another section regarding similar matters, may support an interpretation that the matter was not intended to be included in the section where it was not expressly included.
Whether this principle applies will depend on factors such as the precision of the drafting and the similarity of the subject matter. The High Court has warned that the principal must be applied with care, as it is not of universal application, see ('') at 94.
In the High Court decision of Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc[1994] HCA 54 ('Shin Kobe'), states that it:
Where there are competing state laws, it can be assumed that a state would not wish to contradict itself and therefore inconsistency would not be intended. Every attempt should be made to reconcile the competing statutes. Only if competing provisions are irreconcilable, would one Act be taken to override the other, see Pearce [7.13], see also [3.45], Butler v Attorney-General (Vic)[1961] HCA 32; (1961) 106 CLR 268 ('Butler') at 276 and ASIC v AAT at [20]. The Tribunal also notes the findings of Richards J in Chopra referred to above.
Section 5 of the National Law relevantly defines 'adjudication body' as including a 'panel'. A panel is defined in section 5 to mean a health panel or a performance and professional standards panel. A health panel is defined to be a panel established under section 181, which relevantly provides that a National Board may establish a health panel, if it reasonably believes that a registered health practitioner has or may have an impairment and it is necessary or appropriate for the matter to be referred to a panel. A performance and professional standards panel is defined in section 5 to be a panel established under section 182, which provides that a National Board may establish a health panel if the Board reasonably believes that the way a registered health practitioner practises the health profession is or may be unsatisfactory or the health practitioner's professional conduct is or may be unsatisfactory and it is necessary or appropriate for the matter to be referred to a panel.
Subsections 199(1)(h) to (k) of the National Law provide for various specified decisions of a panel, a health panel and a performance and professional standards panel to be appealable to a responsible tribunal. Section 205 of the National Law would therefore seem to envisage that it is possible that responsible tribunals may have a power to grant a stay of these panel decisions. Section 205 would not be directly relevant to whether stays can be granted of immediate action decisions. At its highest, section 205 of the National Law provides some limited support in opposition to a general proposition that the National Law only envisages decisions made by expert panels being changed by another expert panel at a final hearing. The Tribunal places no weight on section 205 in the interpretative process in this case.
Counsel for Dr Jayaweera sought to draw a distinction between the phrase the 'decision continues to have effect until' in section 159 of the National Law and the phrase 'The Tribunal may make an order staying the operation of a decision ...' in section 50(3) of the VCAT Act. The relevant distinction between the sections being whether the terms, the effect of the decision and the operation of the decision were directed at the same thing. The Board's argument that section 159(2) covered the field and therefore prevailed over section 50 of the VCAT Act, would not be sustainable if the sections were directed at different matters, see Heatley.
No authority for or against the proposition that these expressions were directed at different issues was drawn to the Tribunal's attention. Counsel for Dr Jayaweera used the example of the operation of a decision being stayed and at the final hearing the decision was affirmed or set aside. In that case, the decision would still although was stayed, as it was able to be affirmed or set aside at the final hearing.
In Shergold v Tanner[2002] HCA 19; [2002] 68 ALD 1 at 7 and 8, the High Court noted that the general proposition that a law is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably, reflects the basic rule of construction that in the absence of express words an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. The basis of the presumption is therefore not the status of a court, but the general rules of construction.
Further, in Crowe v Riordan(1992) 26 ALD 712 ('Crowe') at 729, after the Court quotes the relevant passages from Electric Light (partially extracted above at [41(b)]) the Court stated:
This principle is equally applicable to statutory tribunals. In Australian Tramways and Motor Omnibus Employees Association v Commissioner for Road Transport and Tramways (NSW) [1935] HCA 77; (1935) 54 CLR 470, Sir Owen Dixon said, in relation to the then predecessor of the commission, at 502-3: "When a new power is given to an existing court or other tribunal, prima facie, it is exercisable in the same way and subject to the same conditions and incidents as the general powers and jurisdictions of the court or tribunal."
I am not convinced that section 159 of the National Law is directed to dealing with the same issue as section 50(3) of the VCAT Act. Leaving aside the arguments about the use of the terms effect and operation, section 159(2) of the National Law sets the time of the end of the immediate action decision. Section 50(3) deals with a temporary period when the immediate action decision would stop operating but still be subject to review and a potential later renewal of its operation.
When a stay is granted, the immediate action decision can still be the subject of a review in VCAT, the Tribunal can make a decision to affirm, set aside or vary the decision and the decision can later continue to operate after the stay is lifted or expires. Division 7, which includes Section 159, does not expressly deal with a responsible tribunal's powers or procedures. These matters are dealt with briefly in Division 12 and 13 and in an amendment made to the VCAT Act by consequential legislation.
Further, the Tribunal notes that there is some authority for the proposition that a similar presumption to expressio unius exclusio alterius, is excluded when interpreting provisions in separate Acts, see the Full Court of the Federal Court of Australia in _Re Wilcox; Ex Parte Venture Industrie_s Pty Ltd[1996] FCA 1497; (1996) 66 FCR 511 at 530. Professor Pearce has expressed doubt about the basis of this decision.[6]
The Tribunal has reached the conclusion that subsection 159(2) of the National Law and subsection 50(3) of the VCAT Act are dealing with different issues. There is no inconsistency between these provisions, and they are able to work harmoniously with each other. In summary, the Tribunal has reached this conclusion on the basis of:
The statutory context of section 159 of the National Law within Division 7, which deals with health boards taking immediate action and the powers and procedures of the responsible tribunals being in Divisions 12 and 13. Any limitation of the responsible tribunal's jurisdiction and powers would be expected to be found in Divisions 12 and 13;
Divisions 12 and 13 of the National Law provide limited direction as to the powers and procedures of responsible tribunals and expressly indicating that the Divisions of the National Law apply despite any provisions to the contrary in the Acts establishing responsible tribunals but do not otherwise limit those Acts. The conclusion to be drawn is that it was the intention of the Parliament to leave to the establishing Acts of the responsible tribunals, the powers and procedures for reviews and referrals which are not provided for in Divisions 12 and 13;
This Tribunal in Arulanantham v Medical Board of Australia (Occupational and Business Regulation)[2012] VCAT 124 at [17]- [18] considered the importance of whether the application will be rendered nugatory by the failure to grant a stay. The Tribunal found:
It is fair to say that the most important consideration that has been identified by the Tribunal's determinations over the years is a concern to grant stays where to fail to do so would render nugatory the right of review because irreparable damage has been done by the operation of the first instance decision before the review can be completed and that damage cannot be undone even if the applicant succeeds. The learned editors of Pizer Victorian Administrative Law at page 1-1616 update 125 refer to a statement attributed to me in AZD v Secretary to the Department of Justice[2009] VCAT 977 at paragraph [15] where I said:
... generally there should be a predilection in favour of not, if you will, putting people out of business until they have had the opportunity to prosecute their review applications ...
... . Nevertheless, it is not the sole consideration which informs the exercise of the discretion. In Piddington v The Nurses Board of Victoria[2000] VCAT 42 the Tribunal stressed that in cases of occupational registration and regulation the public interest in having only properly trained and competent persons carrying on practice was of very significant importance and in particular circumstances could trump the concern to avoid a review application being rendered nugatory by irreparable damage done in the operation of the initial decision pending the review.
(1961) 106 CLR 268
(1982) 148 CLR 88
(1935) 54 CLR 470
(1996) 66 FCR 511
(1998) 194 CLR 355
(1977) 137 CLR 487
(1956) 94 CLR 554
(1981) 147 CLR 297
(1977) 137 CLR 396
(1992) 176 CLR 239
(2001) 28 Fam LR 231
(1978) 22 ALR 519
Hare
Section 159 of the National Law does cover the field on when an immediate action decision may cease to have effect and a stay of an immediate action decision is not available under section 159.
In relation to questions from the Tribunal regarding the applicability of the statutory interpretation presumption that courts will interpret any provisions affecting their jurisdiction in such a way as to have the minimal effect on it, it was submitted that VCAT is a creature of statute and its powers are set out in the VCAT Act. The interpretation proposed by the Board is not seeking to displace the inherent power of the Tribunal.
When asked about the relevant legal test for inconsistency between the provisions, the Board indicated that it would need to provide a written note after the hearing on that point.
The Tribunal asked about the applicability of the statutory interpretation presumption that when there are competing state laws, it is correct to assume that a state would not wish to contradict itself and therefore inconsistency would not be intended. Every attempt should be made to reconcile the competing statutes. Only if competing provisions are irreconcilable, would one Act be taken to override the other. Counsel for the Board accepted that this presumption was applicable in interpreting the National Law and the VCAT Act in this case.
When the Tribunal asked whether section 50 of the VCAT Act and section 159(2) of the National Law deal with two different issues, it was submitted that they were not different. Section 159(2) of the National Law provides a clear indication of the circumstances in which an immediate action decision would continue to have effect.
The objectives and guiding principles of the National Law support an interpretation that the three scenarios in section 159(2) of the National Law are the only scenarios in which an immediate action decision would cease to have effect. There is no fourth scenario.
In relation to a question from the Tribunal about the other objects and guiding principles of the National Law, including the guiding principle that the scheme is to operate in a transparent, accountable, efficient, efficient and fair way, it was submitted that the immediate action decision is transparent, as the Tribunal makes a decision on the final hearing of the review. There is no unfairness to the practitioner, as they are able to challenge the immediate action decision in the Tribunal.
The Tribunal asked about the applicability of the statutory interpretation presumption that the investment of a court with jurisdiction is intended to include all the procedures of the court. The Board submitted that VCAT is not a court. This proceeding is not looking at the legality of the decision but the correct and preferrable decision. The power whether or not to grant a stay depends on section 159 of the National Law.
The Board's Supplementary Note filed on 15 December 2025, in summary, made the following new or expanded points:
The Board is not aware of and has been unable to identify any decision before this Tribunal where a party has challenged the Tribunal's power to grant a stay of a decision made under section 156(1) of the National Law;
in relation to the test for inconsistency, Richards J in Chopra v Department of Education and Training[2019] VSC 488 ('Chopra') at [38] stated:
Houssein v Under-Secretary, Department of Industrial Relations & Technology (N.S.W.)
The presumption may only be applied if the intention it expresses is discoverable upon the face of the instrument and, to the extent that the principle is concerned with drawing a negative inference, it can only be applied if the inference is not inconsistent with other provisions of the Act and is otherwise permitted by the ordinary rules of constructions, see Wentworth v New South Wales Bar Association(1992) 176 CLR 239 at 250.
Further presumptions include:
Courts will interpret any provisions affecting their jurisdiction in such a way as to have the minimal effect on it, see for example MaGrath v Goldsbrough Mort & Co Ltd[1932] HCA 10, Johnson v Director-General of Social Welfare Victoria[1976] HCA 19; [1976] 135 CLR 92 at 97_, Bennett v Bennett_ [2001] FamCA 462; (2001) 28 Fam LR 231 [34] to [44], and generally D Pearce, Statutory Interpretation in Australia, Lexis Nexis, 9th Ed, 2019 ('Pearce') [5.48] to [5.50].
The investment of a court with jurisdiction is intended to include all the procedures of the court, Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales[1956] HCA 22; (1956) 94 CLR 554 ('Electric Light') at 560. This decision states the principle as:
have effect
its operation
The Tribunal notes in Allied Asia Holdings (Aust) Pty Ltd v Australian Securities & Investments Commission[2002] FCA 566 at [16], the Court found, in relation to the differently expressed stay power in the then Administrative Appeals Tribunal Act 1975 ('AAT Act') which gave the Tribunal power to stay or otherwise affecting the operation or implementation of the decision, that the power was limited and was not directed to the fact the decision had been made. In Shi v Migration Institute of Australia Ltd[2003] FCA 1304; [2003] 134 FCR 326, also in relation to the stay power in the then AAT Act, the Court stated at [26] that the '"operation" of the decision is the legal impact on the right of Mr Shi to be taken to continue as a registered agent.'
In relation to unrelated legislation, it has been found that the 'word 'effect' means the end accomplished or achieved', see Aickin J in Federal Commission of Taxation v Lutovi Investments Pty Ltd[1978] HCA 55; (1978) 22 ALR 519 at 544.
The Tribunal does not accept that if the words operation and effect are applied literally that there is 'a distinction without difference' as submitted by the Board. The temporary stopping of a thing is different to the finalisation or ceasing to exist of the same thing.
However, the Tribunal accepts that in common usage the terms operation of a decision and the effect of a decision may be used interchangeably. Lawyers are also known to use these terms interchangeably. While the applicant's argument has some superficial attraction, the Tribunal is reticent to place too much store in the use of a single word in each of the relevant sections. The Tribunal considers that the more appropriate approach is to consider the full text of the sections and the context of each Act. However, the use of different words in the sections would indicate that it is not appropriate to merely take the words in section 159(2) of the National Law in isolation as sufficient to conclude that there is a conflict with section 50 of the VCAT Act, see ASIC v AAT at [20]. A broader approach is required to the interpretation of the provisions.
The Tribunal notes that in Lee, the Court was interpreting an NSW version of the National Law ('NSW Act'), which was significantly different to the National Law. The Court at [90] found that a provision of the NSW Act, which suggests that there were only two ways in which a suspension of a practitioner can be ended, either by disposing of the complaint or by a determination of the Medical Council, could not be taken literally, as the legislation contemplates that a suspension may be lifted in other circumstances.
The Court also noted at [88] of Lee, that inconsistency between provisions may take the form of direct conflict between two provisions or an inconsistency as a matter of construction.
Relevantly to the interpretation of section 159 of the National Law, the provision is within Division 7 - Immediate Action of the National Law. Division 7 provides for the health boards to have the power to take immediate action against a practitioner and provides for the process to be followed by health boards in imposing immediate action. Division 7 does not include any power or procedural matter as to the review of such a decision by a responsible tribunal. Section 159 only refers to the setting aside of an immediate action decision on appeal, for the purpose of defining when a decision continues to have effect. Section 159 of the National Law sets only the start and end of a period when the decision continues to have effect.
Where a provision is found in legislation can provide guidance in the interpretation of the provision, see Lee at [11]. In that case, the Court was interpreting the NSW Act which, as noted above, was significantly different to the National Law. The Court in interpreting two provisions which dealt with the granting of stays, considered the location of the relevant provisions within the scheme of the Act. It found one provision was within a Division of the NSW Act where one would expect to find a power conferring a right to grant a stay. The second provision was found in a Division where you would not expect such a power to be found. In part due to the location of the provisions, the Court concluded that one provision referring to a stay was merely a referral to the power in the other provision in the NSW Act containing the power to grant a stay. The Court found there were not two provisions which operated to give the Tribunal the power to grant a stay.
Divisions 12 and 13 of the National Law are the parts of the National Law which deal with the powers and procedures of responsible tribunals. The clear intention from these divisions is that the responsible tribunals will largely follow the procedures and have the powers in the legislation establishing such tribunals, unless contradicted by sections in Division 12 or 13. This can be inferred from the limited guidance provided to the responsible tribunals in those Divisions, being largely limited to defining the subject matters of any referral or review, the parties to proceedings, the outcomes of the proceedings and a discretion to order costs. This intention is also expressly stated in section 198 and 203 of the National Law, which each provide that the Division applies despite any contrary provisions in the Act establishing the responsible tribunal but does no otherwise limit that Act.
The Court in Lee at [94] found that the amended NSW Act supported the proposition that the NSW Act is intended to deal comprehensively with the matters it addresses. This can be distinguished from the clear intention of the model National Law to leave most matters of powers and procedures to the legislation establishing the responsible tribunals. Any provisions regarding the powers and procedures or restriction on the powers and procedures of a responsible Tribunal would be expected to be found in Divisions 12 and/or 13 of the National Law, being the Divisions which deal with these matters within the National Law. It would not be expected that such provisions would be within Division 7, which provides for the Board's powers and procedures for imposing immediate action.
The Tribunal notes that the tribunal in Pathak rejected a number of statutory interpretation presumptions as not being of assistance to the Tribunal in that case. I have reached a different conclusion in this proceeding. The presumptions that:
Courts will interpret any provisions affecting their jurisdiction in such a way as to have the minimal effect on it;[4] and
the investment of a court with jurisdiction is intended to include all the procedures of the court;[5]
There is no ground to conclude that Parliament intended section 159 of the National Law to be exhaustive of the powers of the Tribunal on review of an immediate action decision. Division 7 does not deal with the powers of the Tribunal at all;
The legislative history of Section 50(3) of the VCAT Act, it being in place for a long period prior to the National Law becoming the law of Victoria. Further, the adoption Act and the amending Act made some procedural changes to National Law proceedings in VCAT but did not make any changes to the power to grant a stay;
The applicability directly or by analogy of two presumptions in interpreting legislation regarding the jurisdictions and procedures of courts and tribunals. In particular, the presumption stated by Dixon J quoted above in Crowe, 'When a new power is given to an existing court or other tribunal, prima facie, it is exercisable in the same way and subject to the same conditions and incidents as the general powers and jurisdictions of the court or tribunal.' This would indicate that express words or clear implication would be required to take away power of a Tribunal for a particular type of proceeding. In Shin Kobe, the High Court stated that such limitations of jurisdiction or powers, should be found in express words;
The inapplicability in this case of the statutory interpretation presumption that a reference to one matter indicates that other matters are excluded, as the issues dealt with by section 159 of the National Law and section 50 of the VCAT Act are different and section 159 is not exhaustive of powers of the Tribunal on review;
It is not a necessary conclusion that the word effect in section 159 of the National Law and operate in section 50(3) of the VCAT Act are dealing with the same issue. However, this difference does mitigate against the acceptance of the interpretation proposed by the Board being accepted on an isolated textual basis;
The Board's arguments that immediate action decisions by the Board and reviews of immediate action by the Tribunal being decided by experts, should indicate that it was not intended that a legal member of a Tribunal be able to stay an immediate action decision, is not a strong argument as to the interpretation of the provisions;
The Board's argument as to the resourcing of the Tribunal is not a relevant matter in deciding the meaning of the relevant provisions;
The main guiding principle in the legislature should be paramount, but the other guiding principles and objects of the Act also need to be considered.
The Tribunal notes that the view it has taken may not be seen to be in uniformity and comity with the decision made by the ACAT in Pathak. The Tribunal notes the following on this issue:
It is desirable for a Tribunal to decide matters consistently, see Drake v Minister for Immigration and Ethnic Affairs _(_No 2) (1979) 2 ALD 634 at 639-640.
VCAT is not bound by its own decisions, but consistency of decisions is always desirable, if it can be achieved, and inconsistencies should where possible be explained and justified, See Charnley Glen Pty Ltd v Boroondara City Council[2000] VSC 340 at [33].
It is important for VCAT to be consistent on matters of law, see Abdi v Director of Public Transport (Occupational and Business Regulation)[2011] VCAT 489 at [70].
While VCAT is not bound by its own previous decisions, principles of comity and consistency of decision-making should apply and VCAT should only depart from a decision which was clearly on point, if it thought it was clearly wrong, see Towie v State of Victoria (Anti Discrimination)[2007] VCAT 1489 at [28].
VCAT is not bound to follow decisions of tribunals in other states, however in Hare at [14], VCAT decided it would be in the interests of uniformity and comity for it to follow a decision of the Administrative Decisions Tribunal of New South Wales as to the construction of the identical provision in corresponding legislation. The Tribunal notes that the Tribunal stated that the second reason for following the NSW decision was 'because the reasoning seems with respect compelling'.
The Tribunal accepts that the above principles are relevant to its consideration. The present case deals with the interpretation of the National Law and the VCAT Act. The Pathak case dealt with the interpretation of the National Law and the legislation establishing the ACAT. As noted above, the Acts adopting the National Law as the law in Victoria and making consequential amendments to legislation are relevant to the interpretation reached. The equivalent Acts in relation to the ACAT contained different provisions. The Tribunal notes that in Lee, the NSW Court of Appeal found that a provision in the NSW Act which provided for only two ways to end a suspension could not be read literally.
Further and perhaps more importantly, this Tribunal and other responsible tribunals in other states whose statutes provide for the power to grant a stay of a decision under review, have been using those powers for 15 years in health practitioner matters. The matter is of some importance to health practitioners subject to immediate action decisions of the health boards. Following the decision of a member of a single tribunal in Pathak, it is appropriate for this Tribunal to fully consider the matter and reach its own conclusion. It is accepted that this has the risk of at least the perception of a lack of uniformity and comity of decision making between tribunals. No doubt in time this will be resolved by superior courts. To be clear, the Tribunal did not consider that there was an interpretative choice to be made in this case in which the need for uniformity and comity was sufficient to sway the outcome. The Tribunal considers there are very good reasons why the need for uniformity and comity must give way in the present circumstances.
It is not clear from the decision in Pathak that the principles of statutory interpretation were fully argued and that all relevant authorities were brought to the Tribunal's attention, for example the quote above from Dixon J extracted in Crowe. Finally, to the extent necessary the Tribunal finds that the decision in Pathak was wrongly decided.
As the Tribunal has found that there is no consistency between subsection 159(2) of the National Law and section 50(3) of the VCAT Act, section 159 of the VCAT Act has no application. The Tribunal is satisfied that section 50(3) of the VCAT Act can be applied in this proceeding.