Kelly v National Disability Insurance Agency

Federal Court of Australia|2024-12-17|Before: McEvoy J

THE COURT ORDERS THAT:

The application be dismissed.
The respondent have liberty to apply within seven days in relation to any extant question of costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCEVOY J: 1 By a further amended notice of appeal dated 21 March 2024 the applicant appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Tribunal made on 17 April 2023. The Tribunal decided to affirm a decision of the respondent National Disability Insurance Agency (NDIA) on internal review made on 26 March 2021 that the applicant did not meet the disability requirements under s 24 of the National Disability Insurance Scheme Act 2013 (the Act), thereby denying her request to become a participant in the scheme. 2 The Tribunal was not satisfied that the disability criterion in s 24 of the Act was met because it did not consider that the applicant's impairment or impairments were likely to be permanent (s 24(1)(b)). It therefore affirmed the decision under review. 3 The applicant appeals on three questions of law. First, whether r 5.4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Rules) is valid. Secondly, whether the Tribunal erred in misconstruing and, or alternatively, misapplying the word "likely" in s 24(1)(b) and r 5.4. Thirdly, whether the Tribunal erred in law in holding that it was not satisfied that there was "a probability that surgery would not be 'available'" (which is in reality an aspect of question two); or, alternatively, by acting unreasonably (or illogically or irrationally) in finding that it was not satisfied that there was a probability that surgery was not available. 4 For the reasons that follow I have concluded that r 5.4 is valid and that there was otherwise no error on the part of the Tribunal insofar as the second and third questions of law are concerned. The application must therefore be dismissed.

THE HEARING BEFORE THE TRIBUNAL 5 There was substantial medical evidence adduced before the Tribunal by both the applicant and the NDIA. The applicant filed a range of relevant medical reports. The NDIA filed reports of Dr Radek Kindl (a spine surgeon) and the Tribunal received into evidence a supplementary report of Dr Kindl. Oral evidence was given by Dr Kindl, as well as by Dr Katie Snow (the applicant's current general practitioner), Dr Ashleigh Franklin (who had previously treated the applicant and, at the time of the hearing, was in the process of finalising her qualifications as a general practitioner), and Ms Tara Whelan (an occupational therapist). 6 Having regard to the evidence the Tribunal made the following findings of fact as to the applicant's impairments at [62]: (a) that she has an impairment in the form of degenerative disc disease and experiences a loss of physical function as a result of that medical condition because it impedes or restricts some physical activity; and (b) the reduced function arising from the applicant's impairment is "reduced strength and endurance, generally, with some restricted upper and lower body movement". 7 No issue arises on the appeal in relation to the Tribunal's findings concerning the applicant's impairments. 8 However, the Tribunal identified that a question arose "whether [the applicant's] impairment is, or is likely to be permanent, given the potential prognosis for surgical intervention on her spine": at [65]. In this regard, the Tribunal found as follows at [67]-[68]: (a) the majority of the medical witnesses, and the only specialist medical witness, were of the opinion that surgery to address the applicant's spinal conditions has a high probability of substantially alleviating her impairment (as defined by the Tribunal); (b) the evidence did not demonstrate that there is a probability that surgery would not be "available" within the meaning of r 5.4; (c) the applicant had been referred to a hospital for treatment, but the following aspects of the surgery were not fully resolved: (i) the surgery is subject to a lengthy intake process at a public hospital; (ii) the surgery is subject to the opinion of the given surgeon, at the point in time at which the surgery would occur; (iii) any surgery is subject to general and specific risk factors; (iv) some surgical risk factors may change while the applicant is on the waiting list; (d) those unresolved aspects of the surgery are attributes generally arising from surgical intervention; and (e) if the applicant's condition were to deteriorate in the shorter term, there is some chance that surgery might be afforded additional priority. 9 It was on the basis of these findings that the Tribunal concluded that the applicant did not meet the disability requirements under s 24 of the Act in the sense that it did not consider that her impairment, or impairments, are likely to be permanent.

THE STATUTORY CONTEXT AND RELEVANT PRINCIPLES 10 Before turning to the applicant's grounds of appeal, it is relevant to note the following aspects of the statutory regime.

Access request and criteria 11 A person may make a request to become a participant in the National Disability Insurance Scheme (NDIS): s 18 of the Act. Upon the making of an access request, in accordance with s 20(1)(a) of the Act the chief executive officer of the NDIA must decide whether the person "meets the access criteria" in s 21(1) of the Act. 12 Section 21 of the Act sets out the access criteria to be applied when a prospective participant requests access to the NDIS. Pursuant to s 21(1) of the Act, a person meets the access criteria if the CEO is satisfied that the person meets the age requirements (s 21(1)(a)), the residence requirements (s 21(1)(b)), and, relevantly for the purposes of this appeal, the disability requirements (s 21(1)(c)(i)). See generally Mulligan v NDIA [2015] FCA 544 at [34], [50] (Mortimer J) (Mulligan). 13 The phrase "meets the disability requirements" in s 21(1)(c)(i) of the Act is defined in s 9 of the Act as having the meaning given by s 24 of the Act. Section 24(1) relevantly states that a person meets the disability requirements if: (a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable (s 24(1)(a)); and (b) the impairment or impairments are, or are likely to be, permanent (s 24(1)(b)).

Permanence 14 Central to this appeal is the meaning of the word "permanent" in s 24 of the Act. Subsection 24(2) provides that for the purposes of s 24(1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the NDIS for the person's lifetime, despite the variation. Subsection 24(3) makes a similar provision for impairments that are episodic or fluctuating. The expression "permanent" is not otherwise defined in the Act. 15 The meaning of "permanent" in s 24(1)(b) was considered in detail by Mortimer J (as her Honour then was) in National Disability Insurance Agency v Davis [2022] FCA 1002 at [76]-[87] (Davis). In that case Mortimer J rejected an argument advanced by the NDIA that permanent meant "irreversible" or "untreatable" (at [77]). Her Honour instead held (at [85]) that the correct meaning of "permanent" in s 24(1)(b) is "enduring", noting that … This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability. 16 This aspect of the decision in Davis was not the subject of any challenge in this appeal.

The NDIS Rules 17 Relevantly to the present appeal, s 27(a) of the Act provides as follows: The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether: (a) one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) or subparagraph 25(1)(a)(i) or (ii); or … 18 The phrase "[NDIS] rules" is defined in s 9 of the Act to mean the rules mentioned in s 209. Section 209(1) is in the following terms: (1) The Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters: (a) required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or (b) necessary or convenient to be prescribed in order to carry out or give effect to this Act. 19 For the avoidance of doubt, s 209(9)(e) of the Act provides that the Rules may not directly amend the text of the Act. 20 Part 5 of the Rules is headed "When does a person meet the disability requirements". Above rr 5.4 to 5.7 is a subheading "When is an impairment permanent or likely to be permanent for the disability requirements?" Rule 5.4, the validity of which is in issue in this appeal, is in the following terms: An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. 21 The applicant submits that r 5.4 imposes a precondition on any finding of permanence, creating the need for an initial enquiry into whether there are any known, available and appropriate treatments that would be likely to remedy the impairment. The meaning of the expressions "known, available and appropriate" in r 5.4 was considered by Mortimer J in Davis at [129]-[142]. 22 The applicant also submits that, in addition, r 5.4 shifts onto a person a potentially heavy evidential burden by requiring them to demonstrate the existence of a negative, being that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the person's impairment (see Davis at [131]). 23 The applicant notes that in Davis at [66]-[67], Mortimer J accepted that s 27 of the Act is the provision which "permitted" the Rules to be prescribed for the purposes of s 209(1)(a). As her Honour said at [67]: … there was a specific rule-making power conferred by s 27 which fell within s 209(1)(a). These are not rules made under the authority of s 209(1)(b).

THE APPEAL 24 In support of the three identified questions of law, the applicant advances the following grounds of appeal: (a) as to the first question, that is the validity of r 5.4:

Section 24(1)(b) of the Act provides that a person meets the disability requirements if, amongst other things, the impairment/s 'are, or are likely to be, permanent'.
The Tribunal said (at [70]) that it did not consider that the Applicant's impairment/s were likely to be permanent. In coming to that conclusion, the Tribunal purported to apply (e.g. at [9] and [65]-[68]), rule 5.4 of the Rules.
Rule 5.4 prescribes circumstances in which an impairment will not be permanent. It is, in effect, exclusionary.
But s 27(a) authorises the executive to make rules about the circumstances where an impairment will be permanent, rather than when it will not be. That is, s 27(a) authorises inclusionary rules rather than exclusionary ones.
As s 27(a) does not authorise the making of rules about the circumstances in which an impairment will not be permanent, rule 5.4 is not validly made. (b) as to the second question of law, and the first part of the third question, that is the meaning of "likely" in the Act and the Rules:
The Tribunal wrongly treated (at [66]) the word 'likely' as indicative of 'probability' in the sense of having 'a high chance of occurring'.
The Tribunal should instead have held that, on its proper construction, the word 'likely' meant no more than the balance of probabilities.
At [70], the Tribunal said that it did not consider that the Applicant's impairment/s were 'likely to be permanent' within the meaning of s. 24(1)(b). That conclusion rested on the Tribunal's erroneous understanding of the word 'likely'.
In purporting to apply s. 24(1)(b), the Tribunal thus imposed the wrong test or threshold.
Further, in the alternative to question of law 1 (that is, assuming rule 5.4 is valid), in applying rule 5.4, the Tribunal imposed the wrong test or threshold by considering that it was required to be satisfied there was a 'probability' that a treatment was not available when all the rule required was that the Tribunal be satisfied on the balance of probabilities that the treatment was not available. (c) as to the second part of the third question of law, whether the Tribunal acted unreasonably (or illogically or irrationally) in finding that it was not satisfied that there was a probability that surgery was not available:
In the alternative to question of law 3(a) - that is, if the Tribunal did not apply the wrong test or threshold by considering that it was required to be satisfied there was a 'probability' that a treatment (surgery) was not available - the Tribunal acted unreasonably (or illogically or irrationally) because: a. it was a necessary precondition of surgery being available that the Applicant was, or probably would be, a suitable candidate for the surgery; and b. there was no evidence before the Tribunal capable of satisfying it that the Applicant was, or probably would be, a suitable candidate for the surgery. 25 I consider each of these questions of law, and their constituent grounds, as follows.

Question of law 1: validity of r 5.4 26 The applicant submits, and it may be accepted, that in concluding at [70] that she did not satisfy s 24(1)(b) of the Act in that her impairments were not likely to be permanent, the Tribunal's analysis involved, and was limited to, applying r 5.4 (see [65]-[68]). 27 The submission that r 5.4 is invalid is put on three bases: that it is simple ultra vires the Act; that it is repugnant to (inconsistent with) the Act; or that it was made for an improper purpose. The applicant submits, correctly, that if any one of those grounds is established, r 5.4 falls. She refers in this regard to Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746 at 757 (Dixon J) (Swan Hill) and South Australia v Tanner (1989) 166 CLR 161 at 181 (Brennan J).

Simple ultra vires 28 The applicant advances a series of propositions in relation to legal challenges to subordinate legislation on the basis of ultra vires by references to City of Footscray v Maize Products Pty Ltd (1943) 67 CLR 301 at 308 (Rich J); Swan Hill at 756 (Dixon J); Shanahan v Scott (1957) 96 CLR 245 at 250 (Dixon CJ, Williams, Webb and Fullagar JJ) (Shanahan); Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523 at [56] (Gordon, Katzmann and Griffiths JJ); and Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520 at [149] (Bell P, Meagher and Leeming JJA) (Kassam). It may be accepted that the principles essayed in these cases are relevant and applicable in the present context. 29 On the basis of these propositions the applicant's submissions as to the proper construction of s 27 and related provisions in the Act to establish that r 5.4 is ultra vires proceed as follows. 30 The applicant notes the specific rule-making power conferred by s 27 of the Act, which she submits falls within the ambit of s 209(1)(a) of the Act. The applicant also notes, and I accept, that the scope and purpose of the s 27 power is indicated in s 27 itself, and is confined relevantly to prescribing "circumstances in which, or criteria to be applied" in assessing whether an impairment is, or is likely to be, permanent for the purposes of s 24(1)(b) of the Act. 31 The applicant refers in particular to certain relevant observations made about s 27(a) and rr 5.4 to 5.7 by Mortimer J in Davis, where her Honour observed, at [70]-[74]: [70] Thus, the rules in issue before the Tribunal and on this application - notably rr 5.4-5.7… must be rules which either "prescribe circumstances" or "prescribe... criteria to be applied" to aid the determination of the permanency of a person's impairments. No clear answer was given by the Agency about which category rr 5.4-5.7 fell into. Counsel submitted it might be both. [71] Rules 5.4 to 5.7 are headed "When is an impairment permanent or likely to be permanent for the disability requirements?" (my emphasis). That appears to point to the intention of the rules being to prescribe circumstances in which an impairment is, or is likely to be, permanent. In my opinion that is what each of rr 5.4, 5.5, 5.6 and 5.7 do. [72] The two aspects of the rule-making power are different. A power to make a rule prescribing criteria is likely to have the effect of making the criterion or criteria then prescribed a mandatory consideration in the exercise of the power in s 24, because once a criterion is prescribed it becomes a matter the legislative scheme intends be taken into account: see generally Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24, and at 39 (Mason J), 55-56 (Brennan J). A rule of this kind does not dictate or control the outcome of the exercise of the power in s 21, read with s 24. It merely adds to the matters the repository of the power is required to consider. [73] On the other hand, a rule prescribing circumstances in which an impairment is, or is likely to be, permanent may well be a rule whose effect is to control, or at least affect, the outcome of an exercise of power in s 21, read with s 24. To that extent, the purpose of this aspect of the rule-making power in s 27(a) is to authorise the executive to give specific content to the term "permanent" as it is used in s 24(1)(b). As expressed, s 27(a) authorises the executive to make rules about the circumstances where an impairment will be permanent, rather than when it will not be. That is, on its face s 27(a) authorises inclusionary rules rather than exclusionary ones. That would be compatible with the usual restrictions on delegated legislation. Otherwise, a rule made purportedly pursuant to s 27 could control (and alter) the meaning of the word "permanent" in s 24(1)(b), and the executive could substantively alter the operation of the legislative scheme created by Parliament. Consistently with those well-established principles, such an operation would also be contrary to the prohibition in s 209(9)(e) of the NDIS Act, which provides that a rule may not: directly amend the text of this Act. [74] Some of the rules in issue, while appearing to be framed in positive language, are in substance exclusionary. Rule 5.4 is such an example. So is r 5.6. Indeed, counsel for the Agency described them as exclusionary. 32 The validity of rr 5.4 and 5.6 were not in issue in Davis, and so Mortimer J said no more about the matter and proceeded on the basis assumed by the parties that all of the rules were validly made (see at [75]). Nonetheless, the applicant submits on the basis of her Honour's obiter observations extracted above that r 5.4 is, in substance, a rule about the circumstances where an impairment will not be permanent, rather than circumstances where it will be. Thus it is said that r 5.4 deals with a subject not within the scope of the s 27 rule-making power. 33 The applicant submits that, for the reasons Mortimer J identified in Davis, especially at [70]-[74], r 5.4 is not a rule that the Act authorised the executive, through the responsible Minister, to make. On this basis it is said to be ultra vires, and thus invalid. 34 The NDIA submits that the applicant's chain of reasoning that r 5.4 is ultra vires because it is "in substance, a rule about the circumstances where an impairment will not be permanent, rather than circumstances where it will be" is defective. This is said to be for two reasons. 35 The first is that it falls into the same type of error as the submissions made by the applicants in Kassam by "importing an implied constraint to the power" to make the rule (see at 554 [155] (Leeming JA, with whom Meagher JA agreed at 550 [138])). The NDIA adopts Leeming JA's statement in Kassam at 552-553 [146] (although it was made in a somewhat different context) as follows: … The submission requires construing the power conferred by [the Act] in order to discern an implied restriction, and then construing the [rule] made in the purported exercise of that power in order to discern whether [it] exceed[s] the implied restriction. But in principle it is surely better simply to construe the power and see whether the orders made in its purported exercise fall within its scope. 36 The NDIA submits that to construe s 27(a) as authorising the executive to make rules about the circumstances where an impairment will be permanent rather than where it will not be, that is to make inclusionary rules rather than exclusionary ones, is as artificial as the distinction drawn in argument in Kassam between administrative and legislative action in the context of s 7 of the Public Health Act 2010 (NSW). 37 In determining whether the rule is ultra vires, the NDIA submits that the proper starting point is to determine "[t]he true nature and purpose of the power" to make the rule: Williams v Melbourne Corp (1933) 49 CLR 142 at 155 (Dixon J). Section 27(a) confers power on the Minister to "prescribe circumstances in which, or criteria to be applied in assessing whether … one or more impairments are, or are likely to be, permanent". The NDIA contends that on a plain reading of the language of s 27(a) there is no warrant for implying into it an authorisation for only "inclusionary" rules and not "exclusionary" rules, and that it would be "unnecessarily artificial" (to use the language of Leeming JA in Kassam) and incorrect to do so. 38 As senior counsel for the NDIA developed the point in argument, s 27(a) does not use language that directs the rule-maker to, or implies that the rule-maker may only, make an inclusionary rule. The rule-making power is not expressed in those categorical terms. Section 27(a), it is said, provides a rule-making power to deal with a situation where, in relation to a particular impairment, it is necessary to determine whether the impairment is permanent. In such a situation the NDIA submits that the decision-maker is presented with a binary choice. The impairment is either permanent, or not permanent; there is no third category - and therefore there is no reason why the rule cannot be expressed as exclusionary. Indeed, an exclusionary rule would actually assist in the making of the choice. The NDIA submits that there is nothing in the terms of s 27(a) of the Act to prevent a rule being made prescribing that a particular impairment will not be permanent in certain situations. 39 It is the NDIA's position that the power in s 27(a) is a broad one, and that as long as rules made under it are directed to the question of the permanence of an impairment, there is no reason for what is said to be the artificial restriction favoured in Davis which the applicant contends is of application here. A rule made under s 27(a), the NDIA submits, could validly lay down a criterion that would mean that the impairment was not permanent. 40 To the extent that Mortimer J expressed the view in Davis that s 27(a) of the Act only authorises the executive to make rules about the circumstances where an impairment will be permanent, rather than when it will not be, it is the NDIA's position that because neither party put in issue the validity of rules 5.4 to 5.7, her Honour's obiter dicta that rules 5.4 and 5.6 were not consistent with the s 27(a) power was reached in the absence of argument and should not be regarded as correct. 41 On the basis of its argument as to the true nature and purpose of s 27(a) of the Act, the NDIA submits that the second reason in the chain of reasoning in Davis is defective because even if r 5.4 is not regarded as a rule that "prescribes circumstances" (as Mortimer J considered it was), there is no basis for finding that r 5.4 does not "prescribe … criteria to be applied" in assessing whether one or more impairments are, or are likely to be, permanent (as permitted by s 27(a)). The criterion will be: "is there an absence of known, available and appropriate evidence-based treatment?". If there is an absence of such treatment, then that would weigh in favour of permanence. The prescription of criteria, the NDIA submits, may be expressed in inclusionary or exclusionary terms. 42 Insofar as Mortimer J considered in Davis (at [71]) that the word "when" in the sub-heading rr 5.4 to 5.7 "appears to point to the intention of the rules being to prescribe circumstances in which an impairment is, or is likely to, be permanent" (as distinct from a criteria to be applied in assessing permanence), the NDIA submits that this should not be accepted. In particular the NDIA submits that where there is a power to do two things - prescribe circumstances or prescribe a criterion or several criteria to be applied - it should not be accepted that the exercise of power will definitively fall into one of those categories because of a subheading to the relevant rule. The NDIA submits that the language used in r 5.4 can just as easily be described as prescribing a criterion to be applied in deciding whether an impairment is permanent. 43 In other words, the NDIA submits that if Mortimer J intended to say at [71] of Davis that the intention of rr 5.4 to 5.7 was only to prescribe circumstances in which an impairment is or is likely to be permanent, and they do not prescribe criteria to be applied, then that is not correct. 44 Referring to Weinberg J's formulation in Vanstone v Clark (2005) 147 FCR 299 at 331 [103] (Vanstone), on the basis of its construction of the power in s 27(a) of the Act and the meaning of r 5.4, the NDIA submits that the rule plainly falls within the power. The power is one to prescribe circumstances or criteria to be applied (or both) and that is what the rule does. Thus it is said that the attack on the validity of the rule fails, and therefore so too does the attack based on improper purpose. 45 By way of response to the NDIA's submissions that r 5.4 is not ultra vires s 27(a) of the Act, the applicant contends that the restriction on the scope of the power which the applicants argued for in Kassam did not arise expressly from the text of s 7 of the Public Health Act 2010 (NSW) and would only be implied. This is said to be critically different to the present circumstances in that the constraint on the s 27(a) rule-making power is not implied - it arises directly from the text. Thus it is said that there is nothing "artificial" about reading the power in s 27(a) exactly as it is expressed: as limited to inclusionary rules. 46 As to the NDIA's submission that there is no basis for finding that r 5.4 does not "prescribe … criteria to be applied", the applicant submits that this is incorrect by reference to what Mortimer J said in Davis at [70]-[73] and that the NDIA's submissions do not meaningfully engage with her Honour's reasoning in those paragraphs. 47 It may be accepted, as the applicant submits, that the analysis of Mortimer J in Davis in relevant respects is entitled to considerable weight and that her Honour's broadly expressed obiter constitutes a formidable obstacle to the submissions advanced by the NDIA in the present case. Nonetheless, with the benefit of detailed submissions from both parties on the point as it has been argued in this case, I have come to the view that r 5.4 is not ultra vires the rule-making power in s 27(a) of the Act. 48 In my assessment the NDIA is correct to contend that r 5.4 is a rule which prescribes circumstances in which and a criteria to be applied in assessing whether one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) of the Act. This is consistent with the power granted to the Minister by s 27(a) of the Act (see also s 209(1) of the Act). Rule 5.4 provides that an impairment is, or will likely be, permanent only if there are no available and appropriate evidence-based clinical, medical or other treatments that would be likely to provide a remedy. So expressed I consider that the rule is properly to be regarded as neutral - it is neither exclusionary nor inclusionary. 49 Consistently with the submissions made by the NDIA, I do not consider that r 5.4 impermissibly narrows the concept of what may be regarded as permanent for the purposes of s 27(a) of the Act. This is because, properly understood, s 27(a) operates to leave to the maker of the rules the circumstances in which or the criteria to be applied in assessing whether one or more impairments are, or are likely to be, permanent for, relevantly, s 24(1)(b) of the Act. Such an approach is hardly unusual: cf ss 24(5) and 28 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), which provides for Comcare to determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide, which is a document prepared by Comcare itself and approved by the Minister. Whether or not an impairment is permanent will always fall to be assessed in individual cases by reference to particular circumstances and relevant criteria. 50 Section 27(a) of the Act empowers the rule-maker to give content to the concept of a permanent impairment as it is expressed generally in s 27(a). I accept therefore, as the NDIA submits, that on a plain reading the rule-making power does not use language that directs the rule-maker to, or implies that the rule-maker may only, make an inclusionary rule and that an exclusionary rule is impermissible. To read the rule-making power in s 27(a) of the Act as permitting only the making of inclusionary rules and not the making of exclusionary rules produces a false enquiry. The proper enquiry, by reference to s 27(a), is simply whether r 5.4 prescribes circumstances in which or criteria to be applied in assessing whether one or more impairments are, or are likely to be, permanent for relevant purposes. The circumstances in which or the criteria to be applied in assessing whether one or more impairments are, or are likely to be, permanent are the circumstances or the criteria. Whether they are inclusionary or exclusionary is not relevant on my view of the proper construction of s 27(a) of the Act. 51 In this sense one might ask, rhetorically, how it would be possible to prescribe rules dealing with the circumstances in which or the criteria to be applied in assessing whether an impairment is or is likely to be permanent for the purposes of s 24(1) of the Act without necessarily imposing some limitation on the notion of permanency in its ordinary sense as the concept is addressed in s 27(a) of the Act. Section 27(a) leaves the detail of assessing whether an impairment is or is likely to be permanent to the Minister to determine in the rules. Consistently with s 209(1) and (3) of the Act, this must be done having regard to the objects and principles of the Act and the need to ensure the financial sustainability of the NDIS itself. To the extent that it is said that to construe s 27(a) in this way would somehow enable the executive to directly amend the text of the Act (by narrowing the concept of what might be permanent) inconsistently with the prohibition in s 209(9)(e), it follows that I do not accept that this is so. The applicant's simple ultra vires submission fails.

Improper purpose 52 The applicant submits that a further and independent basis for challenging the validity of the rules is that r 5.4 was made for an improper purpose, although she concedes that this challenge would fail if the ultra vires challenge fails. The applicant submits that the purpose, although it was made an express condition of exercising the rule-making power in s 27, is not the purpose pursued by r 5.4, which was in substance to prescribe circumstances when an impairment was not, or was not likely to be, permanent. As the applicant says that there was no power for rules to be made for that purpose, it must be that r 5.4 is invalid. 53 This submission must fail also, for the same reasons given above in answer to the applicant's submissions in relation to simple ultra vires. If s 27(a) of the Act operates in the way I have construed it, it cannot be said that r 5.4 was made for an improper purpose.

Repugnancy or inconsistency with the Act 54 The applicant's final argument that r 5.4 is invalid proceeds on the basis in that it is "repugnant" to or inconsistent with the Act. Obviously enough, subordinate legislation must not be repugnant to or inconsistent with the Act which empowers it: Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1; 292 ALR 243 at [54] (French CJ); see generally: D Pearce and S Argument, Delegated Legislation in Australia (2023, 6th Edition) at [19.1] 487 and the discussion in Vanstone at 331-333 [99]-[114] (Weinberg J). The applicant submits that there is an inconsistency between r 5.4 and the Act, and that it arises in the following ways. 55 First, it is said that r 5.4 invites consideration of how a person came to have a disability, which is a consideration with which the Act is not concerned: Mulligan at [16] (Mortimer J). The applicant submits that r 5.4 seeks to exclude from the concept of permanence cases where there exists "known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment". She says that the apparent motive of r 5.4, being to deprive access to the NDIS if a person's impairment is treatable, links the concepts of impairment, treatment and remedy in a way that has a tendency to invite, or even require, some investigation into how a person came to have a disability. This, it is said, is contrary to the legislative scheme which is not concerned with causation. 56 Secondly, the applicant submits that inconsistency is demonstrated by the potential relevance of r 5.4 to the affordability of treatment. It is said that a consequence of Davis was to introduce considerations of affordability of treatment into a determination of the criterion in s 24(1)(b) of the Act. In Davis, Mortimer J noted (at [138]-[139]) that the word "available" should be understood as meaning available to a particular individual. It was acknowledged by her Honour in Davis (at [133]-[134]), that this may give rise to some "potential disconformity" which in turn "might be capable of indicating that r 5.4 is inconsistent with s 24(1)(b)". The applicant adopts the somewhat qualified dicta of Mortimer J in this respect and submits further that r 5.4 is in fact inconsistent with s 24(1)(b) in the sense contemplated by her Honour. 57 Thirdly, the applicant submits that r 5.4 introduces a "very substantial precondition" to any finding of permanence, by reference to "evidence-based clinical, medical or other treatments". The applicant submits, however that just as the Act is not concerned with how a person came to have a disability, the Act is also not concerned with treatment. This is because the NDIS does not fund treatment, but rather, funds supports. The applicant submits that the word "treatment" does not appear in Chapters 2 or 3 of the Act, and only appears once in the Act. She contends that fashioning a very substantial precondition to a finding of permanence does not give specific content to the term "permanent" as it is used in s 24(1)(b) of the Act (as to which see Davis at [73]); rather, r 5.4 operates effectively to amend the text of s 24(1) by the addition of a further disability requirement relating to treatment. 58 I do not accept the applicant's submissions in relation to these three purported inconsistencies between r 5.4 and the Act, essentially for the reasons advanced by the NDIA. In the first place, I do not accept that r 5.4 does or can be taken to operate so as to link the concept of impairment, treatment and remedy in a way that invites or requires investigation into how a person came to have a disability in a manner contrary to the legislative scheme. As I have said, on its face r 5.4 does no more than provide circumstances in which and the criteria to be applied in assessing whether an impairment is, or is likely to be, permanent. It does so, unremarkably, by reference to whether there are treatments which would be likely to remedy the impairment. Rule 5.4 cannot sensibly be said to invite, still less to require, an investigation into how a person became disabled. 59 Insofar as the affordability point is concerned, it must first be observed that r 5.4 says nothing about affordability. Just as it does not require decision-makers to investigate how a person came to be disabled, nor does it purport to introduce some form of means-testing. Inasmuch as the applicant advances ways in which r 5.4 might be interpreted in a manner which is inconsistent with the scheme of the Act, I accept the NDIA's submission that it should be assumed, in determining whether the rule is valid, that it will be reasonably administered: Kruse v Johnson [1898] 2 QB 91 at 99 (Lord Russell of Killowen) as quoted by Weinberg J in Vanstone at 333 [113]. As Weinberg J makes clear in Vanstone (at 333 [114]), courts have cautioned against erecting hypothetical examples of abuse as a basis for finding that by-laws are invalid. His Honour's observation in this regard applies equally to delegated legislation of the present kind. 60 As senior counsel for the NDIA explained orally at the hearing, to the extent that affordability is something that the Act does not allow to be taken into account, the reference to "available" in r 5.4 should not be construed as including affordability. A construction should be adopted which is open and which stays within the limits of the power granted. Insofar as Mortimer J refers in Davis at [133] to some "potential disconformity" in r 5.4 if it introduces considerations of affordability into a determination of the criterion in s 24(1)(b) of the Act, I accept the submission of the NDIA that her Honour's analysis is properly to be regarded as going to the construction of the rule, not the validity. 61 Turning finally to the applicant's treatment precondition point, it cannot be accepted that treatment is somehow irrelevant and must be excluded from the criteria to be applied in assessing permanency in r 5.4 in order for the rule to be compatible with the term "permanent" as it is used in s 24(1)(b) of the Act. As the NDIA submits, the question is whether a particular impairment is permanent - that is to say, whether it is enduring: see Davis at [85]. It cannot be legally irrelevant, in considering whether a particular impairment is, or is likely to be, permanent to consider whether the impairment might respond to treatment. The applicant's submission that r 5.4 operates effectively to amend the text of s 24(1) by the addition of a further disability requirement relating to treatment is untenable. 62 In any event, as the NDIA submits, it cannot be accepted that it is repugnant to the Act for a decision-maker to have regard to the existence of services beyond the NDIS. The Act expressly provides that, in giving effect to its objects, regard is to be had (relevantly) to the need to ensure the financial sustainability of the NDIS (s 3(3)(b)) and the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the NDIS (s 3(3)(d)). 63 For these reasons the first question of law concerning whether r 5.4 is valid must be answered in the affirmative.

Question of law 2 and 3(a): Whether the Tribunal misconstrued and/or misapplied the word "likely" 64 The Tribunal found that the applicant satisfied s 24(1)(a) of the Act (at [62]), in that she had a disability attributable to a physical impairment. In the face of that finding the Tribunal then considered s 24(1)(b) of the Act and the question of the permanence or likely permanence of that physical impairment. 65 The word "likely" is not defined in the Act or the Rules. The Tribunal considered the meaning of the word "likely" at [66] of its reasons as follows: One key word that appears in the legislation and the rules [that] does not appear to have been addressed in the authorities is 'likely'. The Macquarie Dictionary defines likely as: 'probably or apparently going or destined (to do, be, etc.)'. Likewise, the Oxford English Dictionary defines the word as 'probable' in the sense of 'having a high chance of occurring'. Accordingly, where this word plays a role in helping to determine permanence, I consider it to be indicative of probability rather than possibility, and certainly not mere speculation. 66 The applicant says that this passage demonstrates that the Tribunal adopted a meaning of "likely" that required a "high chance" of the relevant thing occurring. In the context of s 24(1)(b) of the Act, the applicant submits that this meant that a person could meet the disability requirements only if their impairment was, or had a high chance of being, permanent. 67 The applicant contends that there are several difficulties with the Tribunal's approach and with its conclusion at [66]. 68 First, the applicant submits that the word "likely" appears in several different places throughout the Act and the Rules. She says that the Tribunal's conclusion at [66] would attribute the same meaning to the word wherever it is relevantly used in the Act and the Rules. 69 Secondly, the applicant says that the Tribunal's use of the dictionary definitions in this way is not consistent with the modern approach to interpretation. While she accepts that it is permissible to have regard to dictionaries to determine the ordinary meaning of a word, the applicant submits that the dictionaries are not a substitute for interpretation. The applicant says that the words "likely" and "probable" can have a range of meanings, which includes the meaning adopted by the Tribunal but also could include something that is more than merely "possible": citing P Herzfeld and T Prince, Interpretation (2020, Second Edition) at [4.380] 94-95. 70 Thirdly, the applicant submits that the Tribunal does not explain why a meaning of "likely" that requires a "high chance" (at [66]) should, in the context of the Act, be preferred to a less onerous meaning. The applicant says that the Tribunal did not discuss or explain what is meant by a "high chance". 71 The applicant submits that a construction of the words "likely" and "probable" that merely requires a greater than 50% chance would be less onerous than the Tribunal's "high chance" formulation, if that is what it is, and more in keeping with the legislative scheme. She says that those words should be construed so as to give "the fullest relief which the fair meaning of its language will allow": Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384 (Barton ACJ, Isaacs, Gavan Duffy, and Rich JJ). The applicant submits that the construction should give "a fair, large and liberal" interpretation, rather than a literal or technical one: IW v City of Perth (1997) 191 CLR 1 at 11 (Brennan CJ and McHugh J); New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232, [32] (French CJ, Kiefel, Bell and Keane JJ), [92] (Gageler J). The applicant also notes that the beneficial and remedial nature of the Act and the need for questions of its construction and operation to be approached with "a reasonable degree of common sense" was referred to by Mortimer J in Davis at [142]. 72 I do not accept that there is any error on the part of the Tribunal in its construction of the word "likely" in s 24(1)(b) of the Act or the Rules. As the NDIA submits, the applicant's argument focuses on the words "high chance" as they appear in the Oxford English Dictionary definition quoted by the Tribunal at [66]. However, a plain reading of paragraph [66] demonstrates that the Tribunal did not adopt a meaning of "likely" that required a "high chance" of the relevant thing occurring. The words "high chance" do not appear in the Tribunal's formulation. Rather, the Tribunal defined "likely", by reference to probability, in contradistinction to possibility or mere speculation. The construction adopted by the Tribunal accords with the ordinary meaning of the word "likely", and it appropriately reflects the beneficial and remedial nature of the NDIS. The applicant's emphasis, both in her written and oral submissions, on the Tribunal's use of the expression "high change" is, in context, misplaced. 73 Further, and once again as the NDIA submits, I accept that the applicant's observation that the word "likely" appears elsewhere in the Act and the rules does not, of itself, disclose any error on the part of the Tribunal. As has often been observed, the reasons of the Tribunal should not be construed "minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). The applicant's submissions in relation to the Tribunal's understanding of the word "likely" stray into this territory. 74 For the same reasons, the applicant's contention that, if r 5.4 is valid, in applying it the Tribunal imposed the wrong test or threshold by considering that it was required to be satisfied there was a "probability" that a treatment was not available when all the rule required was that the Tribunal by satisfied on the balance of probabilities that the treatment was not available, must fail. The applicant's counsel accepted in oral argument that if the applicant's argument in relation to the word "likely" failed, then so too would the applicant's argument in relation to the use of the word "probability" at [68] of the Tribunal's reasons. 75 Questions of law 2 and 3(a) must be thus be answered in the negative.

Question of law 3(b): unreasonableness 76 The applicant submits, finally, that if r 5.4 is valid, and even if the Tribunal correctly construed the words "likely" and "probable", its reasoning and its conclusions at [68] demonstrate that those words, though properly construed, were not applied by it in any sufficiently logical or rational way. In this sense it is said that the Tribunal erred by acting unreasonably in finding that it was not satisfied that there was a probability that surgery was not available. 77 The applicant notes in this regard that she had given evidence to the Tribunal that St Vincent's hospital had rejected her as a candidate for surgery (at [13]). She also notes that Dr Kindl, her spine surgeon (and the only specialist who gave evidence in the Tribunal), was unable to confirm her suitability for surgery. 78 The applicant concedes that there was some evidence before the Tribunal to the effect that there was a "very high chance" that some of her pain would resolve with surgery, but she submits that there was no evidence at all that she was a suitable candidate for such surgery. The applicant submits that her suitability was contingent on a range of different factors, and that the best that could be said was that there was a possibility that she might become such a candidate in the future, and this was speculative. 79 The applicant submits that in focussing on the possibility of surgery having a favourable outcome, the Tribunal glossed over the fact that there was no evidence that there was a necessary precondition for surgery: namely her suitability to undergo it. She submits that it was highly illogical to reason that because there were "unresolved aspects" (which she says the Tribunal did not clearly identify at [68]) that were thought to be "attributes generally arising from such intervention", the Tribunal was thus unsatisfied that there was a probability that surgery would not be "available" in the relevant sense. Further, the applicant submits that it was in any event entirely irrelevant whether or not the "unresolved aspects" generally arose from such intervention. 80 The applicant submits that the conclusion that as at 17 April 2023 there were no "available" evidence-based clinical, medical or other treatments that would be likely to remedy her impairments was the only conclusion open to the Tribunal in circumstances where, (at [67]) the Tribunal said that: (a) it accepted from the evidence that some aspects of the surgery were not fully resolved; (b) it accepted that surgery was not being offered by Dr Kindl but rather was subject to a lengthy intake process at a public hospital; (c) any surgery would be subject to the opinion of a given surgeon, at the point in time at which it would take place; and (d) any surgery was subject to general and specific risk factors, some of which may change while the applicant was on the waiting list. 81 In this regard the applicant also submits that Dr Franklin had also noted, and the Tribunal appeared to accept, that in the public health system access to surgery was a matter of years, not months, and that 2030 was the most likely time for any surgery to occur. 82 Contrary to the position taken by the NDIA, the applicant submits that the relevant question was not whether she might be found at some future date to be a suitable candidate for surgery; the question was rather whether surgery was in reality available to her as at 17 April 2023. 83 The applicant maintains that given the multitude of contingencies that had to be satisfied before any surgery could take place and the fact that none of those contingencies had been satisfied as at 17 April 2023, the Tribunal, acting rationally and reasonably, ought to have concluded that surgery was not available as at 17 April 2023. 84 The applicant thus submits that the Tribunal's conclusions (at [68]) (extracted at paragraph [8] above) lacked a probative basis and were legally irrational or illogical or were legally unreasonable, citing Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, at [45] (Perram, Murphy and Lee JJ); Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 648 [132] (Crennan and Bell JJ); and Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at 336 [72] (Li). 85 Notwithstanding the applicant's submissions in this regard, it must be remembered that a stringent test applies in determining whether the Tribunal's conclusions were legally unreasonable: see, for example: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 551 [11] (Kiefel CJ) (SZVFW); Li at 376 [108] (Gageler J). The question is not whether there might be reasonable differences of opinion about the merits of the Tribunal's conclusions. The question is whether, in forming those conclusions, the Tribunal exercised its statutory power within the bounds of legal reasonableness: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J); Li at 363 [66] (Hayne, Kiefel and Bell JJ); SZVFW at 564-565 [51]-[54] (Gageler J). 86 Dealing first with the state of the evidence about whether the applicant was a suitable candidate for surgery, although her submissions refer to her evidence that St Vincent's Hospital had rejected her as a candidate for surgery, the Tribunal's reasons reveal a more complicated evidentiary picture: (a) Dr Snow's evidence was that the applicant was "not specifically rejected" as a surgical candidate by St Vincent's Hospital; (b) Dr Franklin's evidence was that the conclusion reached in early 2020 that the applicant was "not an ideal surgical candidate" was not provided by a medical consultant; and (c) when the applicant was asked at the hearing whether she said in a consultation at the St Vincent's Hospital Neurophysiotherapy Clinic that she was "not keen" on surgery, she replied that "most don't work out". 87 Although the applicant submits that the Tribunal's findings at [68] were legally unreasonable because there was no evidence that she was a "suitable candidate" for the surgery in issue, I accept the NDIA's submission that having regard to all of the evidence before the Tribunal, its findings concerning the availability of surgery were reasonable: (a) the applicant's evidence was that Dr Kindl had referred her to the Austin Hospital and she was on a waitlist for an appointment; (b) Dr Snow gave evidence about the process triggered by such a referral; namely that as part of the intake process initiated by Dr Kindl's referral, the applicant's suitability as a candidate for surgery would be considered when she was assessed by those who would perform the surgery within the public health system; and (c) the assessment had not been undertaken at the time of the hearing because the applicant remained on the waiting list. 88 I accept the NDIA's submission that the mere possibility that the applicant might have been found to be an unsuitable candidate for surgery at a future time did not, of itself, amount to a probability that the surgery was not available to her within the meaning of r 5.4. In the same way, the need for individualised assessment as part of the public hospital intake process did not mean that the applicant could not "in reality" access surgery (as to which see Davis at [132]). Thus I accept that any concern that the applicant might be found to be an unsuitable candidate for surgery was speculative. As the NDIA submits, if the applicant was found to be an unsuitable surgical candidate after the final determination of her review under s 103 of the Act, she could, subject to the NDIS age limits, make another request to become an NDIS participant: see s 19(2) of the Act. 89 Turning then to the Tribunal's findings about other "unresolved aspects" of the treatment, I do not accept the applicant's submission that the Tribunal failed to identify the "unresolved aspects" to which it refers at [68]. I accept the NDIA's submission that these matters are set out at [67] of the Tribunal's reasons. As has been mentioned, they are that: (a) the surgery would be subject to a lengthy intake process at a public hospital; (b) the surgery is subject to the opinion of the given surgeon at the point in time that it would occur; (c) any surgery is subject to general and specific risk factors; and (d) some surgical risk factors may change while the applicant is on the waiting list. 90 The Tribunal found that those matters are "attributes generally arising from such intervention": at [68]. I accept, contrary to the applicant's submission, that it is not "irrelevant" that those "unresolved aspects" generally arise. It goes to the heart of the application of r 5.4. There was no illogicality in finding that ordinary incidents of surgical intervention (the intake and assessment process, waiting lists and risk factors) do not (of themselves) give rise to a probability of unavailability within the meaning of r 5.4, particularly having regard to the need to ensure the financial sustainability of the NDIS (as to which see s 3(3)(b) of the Act) and the provision of services by other agencies, Departments or organisations (as to which se s 3(3)(d) of the Act). As senior counsel for the NDIA submitted at the hearing, it would be perverse to find that a treatment provided by the public health system is not available to an individual within the meaning of r 5.4 because of the ordinary features of the service, which will apply regardless of who is seeking treatment.

The relevance of the applicant's age 91 Although the point was not directly raised in relation to question of law 3(b) in the amended notice of appeal or the applicant's written submissions, at the conclusion of oral submissions both senior counsel for the NDIA and counsel for the applicant raised the issue of the applicant's age. The applicant will age out of the NDIS when she turns 65, and in April of 2023 she was 61 years of age. It must follow that in April 2025 the applicant will be 63 years of age. 92 The applicant submits that because of the delay in surgery, and the fact that she will become ineligible under the NDIS when she turns 65, that reality is another basis for a conclusion that treatment is unavailable for the purpose of r 5.4. The applicant says that the fact that she will become age barred is another basis to conclude (in the context of question of law 3(b)) that the Tribunal's decision was unreasonable, or irrational, or illogical. 93 I do not accept that this feature of the situation can properly be said to lead to the conclusion that the Tribunal's decision in relation to whether surgery was available was unreasonable, irrational, or illogical. As the NDIA submits, were this to be so then treatment for which there was a waiting time, even if relatively short, would never be "available" to people approaching the age of 65. The fact that a person will soon turn 65 does not make the person's impairment permanent - that is a separate question, even if the person is unable to access the NDIS. As much was acknowledged by the Tribunal at [51]. 94 For these reasons question of law 3(b) also falls to be answered in the negative.

CONCLUSION 95 The applicant's grounds of appeal have not been made out. There is no relevant error in the Tribunal's decision and the applicant's questions of law demonstrate no error. The application will therefore be dismissed. 96 Insofar as the question of costs is concerned, it is not apparent, having regard to the NDIA's written and oral submissions, that in the event of success the NDIA seeks its costs. For present purposes, therefore, there will be no order as to costs. Should the NDIA in fact seek its costs of the appeal it will have liberty to apply to my chambers within seven days in relation to this issue. I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.

(2021) 106 NSWLR 520

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