Larter v Paramedicine Council of NSW

NCAT Occupational|2022-11-18

Trinh v Medical Council of New South Wales [2022] NSWCATOD 105 Texts Cited: None Category: Principal judgment Parties: John Edward Larter (Appellant) Paramedicine Council of NSW (Respondent) Representation: Counsel: S Prince SC (Appellant) T Wong (Appellant) H Bennett (Respondent)

Solicitors: Pryor Tzannes & Wallis (Appellant) Health Professional Councils Authority (Respondent) File Number(s): 2021/00295431 2022/00203557 Publication restriction: Nil

Introduction

John Larter (the Appellant) is a registered paramedic under the Health Practitioner Regulation National Law (NSW) (the National Law) who was first registered by the Paramedicine Board of Australia on 1 February 2019.

2021 Complaints

Between 28 August and 2 September 2021, the Council received six complaints in relation to the Appellant (the 2021 Complaints). The 2021 Complaints all relate to the Appellant expressing his views in the media (newspaper, radio and Facebook video interviews) about the COVID-19 pandemic, public health orders for lockdowns in NSW, and the NSW Ministry of Health Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 dated 26 August 2021. In the media posts, the Appellant identifies himself as a paramedic, and in the newspaper and Facebook video interviews he is seen wearing his NSW Ambulance paramedic uniform. In one photo he is seen standing in front of a NSW Ambulance vehicle in his uniform.

Legislative Framework

In order to follow the chronology of events and the legislative framework in which they occurred we set out below the relevant legislative provisions found in Part 8, Division 3 of the National Law: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or … 150A Review of certain decisions (1) A registered health practitioner or student may apply to a Council for the review of a decision of the Council under section 150 to-- (a) suspend the practitioner's or student's registration; or (b) impose conditions on the practitioner's or student's registration or alter conditions imposed on the practitioner's or student's registration. (2) On receiving an application for review, a Council - (a) may refuse to reconsider its decision if, in the Council's opinion, the application is frivolous or vexatious; or (b) must otherwise reconsider its decision, and in so doing must consider any new evidence or material submitted by the practitioner or student that the Council reasonably considers is relevant. (3) Following its reconsideration of a decision, a Council may - (a) affirm or vary the decision; or (b) set it aside and take any action the Council has the power to take under section 150. (4) A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's or student's circumstances that justifies the variation or setting aside of the decision. … 150C Power to remove or alter conditions or end suspension (1) A Council may, at any time -- (a) end a period of suspension imposed by the Council under this Subdivision; or (b) alter or remove conditions imposed under this Subdivision. (2) A Council may, at any time after taking action under section 150 with respect to a registered health practitioner or student ("the original action"), take any other action it could have taken under that section at the time of taking the original action. (3) The Council must give written notice of the action it takes under this section to the registered health practitioner or student concerned. … 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - … (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council; … 159B Appeals on point of law [NSW] (1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal. Note - An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. … 159C Tribunal's powers on appeal [NSW] (1) On an appeal against a decision of the Council, the Tribunal may order -- (a) confirm the decision; or (b) set aside the decision; or (c) set aside the decision and make a new decision (being a decision that the Council could have made). (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.

Section 150 Proceedings: 15 September 2021

On an initial review of the 2021 Complaints, the Council was concerned that the 2021 Complaints raised issues of potential risks to public safety and issues in the public interest. The Council determined that proceedings pursuant to s 150 of the National Law were warranted.
A s 150 hearing took place on 15 September 2021 (the s 150 Proceedings). The Council through its delegates decided that under s 150(1)(a) it was satisfied that it was appropriate that the Appellant's registration be suspended, and for the suspension to take effect from 20 September 2021 (the Suspension Decision).
The Council's written reasons for the Suspension Decision were dated 7 October 2021 (the Suspension Reasons).

Referral of Matter to Commission

In the context of the making of the 2021 Complaints, and following consultation between the Health Care Complaints Commission (the Commission) and the Council, the Commission determined to investigate those complaints under s 13 of the Health Care Complaints Act 1993 (the HCC Act) (the Commission's s 13 Investigation).
Further, on 7 October 2021, following the s 150 Proceedings, the matter was referred to the Commission by the Council as a conduct matter for investigation in accordance with s 150D of the National Law.
In accordance with s 20A(2) of the HCC Act, on 17 May 2022 the Commission consulted with the Council in the context of dealing with the complaints. Following consultation, and in accordance with s 20A(2)(e) of the HCC Act, the Commission revised its assessment of the complaints, and made a decision to refer the complaints to the Council for the Council's further management, and for the taking of any action the Council considers appropriate under the National Law.
In a letter to the Appellant dated 26 May 2022, the Commission informed the Appellant that it was referring the matter to the Council for the further management of the matter and the taking of any action considered necessary.
The Commission's letter of 26 May 2022 to the Appellant also foreshadowed that on referral the Council may be of the opinion that disciplinary proceedings under s 148 of the National Law may be required, whereby the Council may take action including a caution or reprimand; imposition of conditions; and imposition of a fine, in certain circumstances.
By letter dated 27 May 2022 the Council advised the Appellant that following the referral of the complaints to the Council by the Commission the Council would conduct a review of the suspension of the Appellant's registration (pursuant to s 150C of the National Law) and that the review would take place on 10 June 2022 to consider lifting the suspension.
Following the referral to the Council by the Commission described above the Council also resolved to convene a Council inquiry to take place under ss 148 to 148I of the National Law (the s 148 Inquiry). On 2 June 2022 the Appellant was advised that the matters would be considered at a Council inquiry under s 148 at a future date.
The powers available to the Council upon an inquiry initiated under s 148 to s 148G of the National Law extend to a range of measures including the power to impose conditions the Council considers appropriate on the practitioner's registration (s 148E), the power to fine (s 148F) and the power to recommend to the Tribunal suspension or cancellation of registration (s 148G).

Section 150C Proceedings

The s 150C proceedings took place on 10 June 2022. The Appellant attended the review. He was supported by his Solicitor, Mr J Willson. On 21 June 2022, the delegates conducting the review on delegation from the Council handed down written reasons for the two decisions they had come to following the review.
The two decisions made were: 1. That pursuant to section 150C of the National Law the suspension imposed under section 150(1)(a) on 17 September 2021 was ended. 2. That pursuant to section 150C of the National Law a number of conditions be imposed on the Appellant's registration as a paramedic (Conditions Decision).
On or around 12 July 2022 the Appellant lodged an External Appeal form appealing the Conditions Decision.
Both the Suspension Appeal and Conditions Appeal were heard on 17-18 November 2022, with evidence in one appeal being evidence in the other.

Section 150 Powers

Before coming to deal with the grounds of appeal it is necessary to identify the nature of the powers available to the Council, and the Tribunal on appeal, pursuant to s 150 of the National Law.
The s 150 power available to the Council is of a particular kind, namely, where immediate action of an emergency kind requires the Council to act.
In Ghosh v Medical Council of New South Wales [2020] NSWCA 122; (2020) 102 NSWLR 303 at [9] it was held in the Court of Appeal as follows: [9] On such an appeal NCAT is required to exercise afresh the administrative discretion in s 150, as if it were the Council, upon the evidence (including any additional evidence that was not before the Council) before it, and having regard to the considerations relevant to the exercise of the discretion conferred by s 150. As was explained by NCAT (constituted by a tribunal in which Wright J presided) in Karimi v Medical Council of New South Wales, the approach required of NCAT on an appeal of this kind is as follows: [123] … The applicable principles derived from the relevant provisions of the National Law, as discussed in Crickitt and Hanna, may be summarised as follows: (1) Nature of the appeal The Tribunal is to conduct the appeal by way of a new hearing and may consider evidence that was not before the Council as the original decision-maker. The Tribunal's task is not to review the decision of the Council and determine whether its decision was reasonably open in the circumstances. The Tribunal is called on to exercise afresh the administrative discretion in s 150(1) having regard to the material before it. (s 159(3) of the National Law and Hanna at [17]-[18]). (2) Protective jurisdiction The jurisdiction being exercised is directed to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest. (ss 3A and 150 of the National Law, Hanna at [17] and Crickitt at [47]) (3) Consequences of suspension The exercise of the power to suspend can be described as "draconian" and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. (Crickitt at [56]; see also X v NSW Medical Board (1993) 32 ALD 330 and Lindsay v NSW Medical Board [2008] NSWSC 40 at [80], which considered s 66 of Medical Practice Act 1992 (NSW), being the predecessor to s 150 of the National Law) (4) No need for a detailed enquiry The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that the Tribunal need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (Crickitt at [56]; see also Lindsay at [76]) (5) Not required to make any conclusive findings Because the circumstances in which the power under s 150 is to be exercised include that there may be a continuing dispute as to precisely what occurred and why and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. (s 150 of the National Law and Hanna at [19]) (6) Pre-conditions on power to suspend The Tribunal must assess whether "it is appropriate for the protection of the health and safety of any person or persons" or "is otherwise in the public interest" to make such orders as are permitted by s 159C. The Tribunal's task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest. (ss 150, 159 and 159C of the National Law and Hanna at [20]) (a) Scope of "protection of the health and safety of person or persons" The "protection of the health and safety of any person or persons" does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. (Section 150 of the National Law and Crickitt at [48]) (b) Scope of "public interest" The "public interest" consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession (ss 150 of the National Law, Hanna at [18] and Crickitt at [56]) (7) No need to determine whether conduct is "professional misconduct" or "unsatisfactory professional conduct" Apart from what is involved in assessing the risk referred to in the preceding subparagraphs, it is not otherwise necessary for the Tribunal to determine whether the conduct under notice constitutes "professional misconduct" or "unsatisfactory professional conduct" or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. Those are matters that may fall to be addressed at a later stage, if and when disciplinary proceedings are taken against the appellant. (s 150 of the National Law and Hanna at [22]) (8) Nature of suspension power under s 150 An order made under s 150, including a suspension order, is in the nature of an interlocutory order and often must be made on the basis of limited information. (s 150 of the National Law and Crickitt at [51] and the authorities cited there; Lindsay at [79]) (9) Council's separate power to reconsider suspension A practitioner may also apply directly to the Council for a review of a s 150 decision to suspend a practitioner's registration. If satisfied there has been a sufficient change in the practitioner's circumstances, the Council can affirm or vary the decision or set it aside and take any action it has power to take under s 150. (s 150A(2)(b) and (3) of the National Law).
More recently the Court of Appeal handed down the decision in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (Bell CJ, White JA and Harrison J).
The Court of Appeal analysed the power under s 150 in the context of the powers available under Part 8 of the National Law, in particular Division 3.
The Court commenced the analysis of the legislation thus: [47] Division 3 of Pt 8 of the Health Practitioner Regulation National Law (NSW) of 2009 is headed "Complaints". The heading of the Division and the Subdivisions are to be taken to be part of the Act: Interpretation Act 1987 s 35(1). The headings to the sections are not to be taken to be part of the Act but a part of the extrinsic material that can be used in the construction of the Act as allowed by ss 34, 35(2) and (5). Subdivision 1 is headed "Making complaints" …
The Court then held that the setting in which s 150 is to be found must be considered: "It is contained in a Division headed "Complaints" and in the context of provisions that contemplate that if a complaint is made, it will be the Tribunal and not the Medical Council that would have the power to suspend. Section 150 is contained in Subdivision 7. The heading to that Subdivision is "Powers of a council for protection of public"" (at [53]).
Having set out the terms of s 150 the Court continued: [55] Section 150(4) makes it clear that the Medical Council was entitled to take action notwithstanding that no complaint had been made to it about Dr Pridgeon. However, a relevant question for the Council is whether it should act under s 150 where no complaint has been made. [56] The context indicates that the usual way in which a complaint against a doctor should be dealt with is by the making of a particularised complaint, which the doctor can address at an oral hearing and which, if sufficiently serious to warrant suspension, is to be referred to the Tribunal. This suggests that the power of the Medical Council to suspend a doctor's registration under s 150 should be reserved for urgent cases. This is confirmed by the Explanatory Note relating to s 150, which refers to the Medical Council's powers "to act where it is necessary to take urgent action for the protection of the public", and the Second Reading Speech for the Health Practitioner Regulation Amendment Bill 2010, which referred to cases of urgency or emergency in the following terms: "The principal definition of 'unsatisfactory professional conduct' in this bill is in proposed section 139B. Sections 139C and 139D go on to set out additional matters relevant to medical practitioners and pharmacists respectively. I further advise the House that, as with the definitions of 'unsatisfactory professional conduct', the other aspects of the existing complaints processes are to be carried over with little change. There is a small number of areas in which there will be change, and many of these changes reflect changes brought about by the national registration system. These areas of change include: changes required to reflect the registration of students in all professions and changes to the council's powers regarding emergency suspensions. … With respect to the changes to provisions concerning emergency suspensions, I advise the House that the changes proposed involve moving from emergency suspensions of not more than eight weeks in duration to emergency suspensions that are not time limited. While this is an extension of the suspension power, it must be noted that a practitioner who is subject to such a suspension may apply for a review of that suspension at any time and as frequently as he or she wishes. Of course, a council will be able to decline to accept an application that is frivolous or vexatious. However the professional and board representatives who have considered this matter agree that it is appropriate and that the right to apply for a review at any time meets any concerns about procedural fairness…" [Emphasis added] [57] Additionally, although there is no definition of "public interest", the content of the expression is informed by the heading to Subdivision 7 that the powers provided by s 150 are to be exercised for the protection of the public. … [68] First, in the context of Subdivision 7, the reference to the "public interest" should be understood as a reference to the public interest in the protection of the public's health and safety. The content to be given to that protection must take its meaning from the conduct of the practice of medicine in respect of which a medical practitioner's registration is granted. In the present case, the relevant public interest must be in the conduct by Dr Pridgeon of his profession as a medical practitioner. There may, arguably, be some wider, unspecified public interest in limiting the potential for the rule of law to be undermined by conduct of a medical practitioner that is said to be in defiance of an order of the court, but which is unrelated to the practice of medicine which the National Law regulates. However, the honourable reputation of the medical profession that is said possibly to be affected by conduct of that description is not a concern that relevantly informs the particular public interest in the protection of the public with which s 150 is concerned. … [70] Thirdly, the context of s 150 suggests that it should only be invoked as an emergency power where the circumstances are urgent. The Medical Council's submissions specifically acknowledge and accept that the powers in s 150 form part of a selection of emergency powers that were introduced into the National Law. However, that is not this case. This implication arises from the fact that Division 3 provides for the primary mechanism for regulating the profession by way of particularised complaints, including an oral hearing if sought, to be dealt with by the Tribunal, not the Medical Council, if suspension is sought. That construction is reinforced by the Explanatory Memorandum and the Second Reading Speech. There was no urgency in this matter at any time before or during the Tribunal hearing.
To this analysis must be added earlier observations by the Supreme Court and the Tribunal in respect of s 150 or its equivalent.
In Lindsay v NSW Medical Board [2008] NSWSC 40 it was said, relevantly for present purposes, in respect of predecessor legislation that a power of suspension called for an assessment of risk, including the nature and extent of the risk arising from the particular conduct of the practitioner (per Hall J at [76]).
In Berger v Council of the Law Society of NSW [2013] NSWSC 278 the Court was dealing with an appeal against the suspension of a practising certificate of a solicitor. In relation to whether it was "necessary" in the public interest to suspend it was held that the protection of the public meant that the public interest was entitled to significant weight (at [10] per Beach-Jones J). Although the test there under consideration was "necessary" as opposed to "appropriate to do so for" the Council in this case was in my view entitled to approach its task in a similar way. His Honour further proceeded to hold that the appropriate approach is one that required the Law Society to be satisfied that the available material concerning a complaint against a practitioner demonstrates that the continued holding of a practising certificate by the practitioner pending its determination (of the complaint) presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended (at [18]).
As was also held in Medical Council of New South Wales v Smithson [2021] NSWCA 53 the task of the Council under s 150 may be stated as follows: As s 150 is a protective provision, it is appropriate ordinarily for the Tribunal, in deciding whether it is satisfied that it is appropriate to make an order under the first or second limb, to make an assessment about the nature and degree of risk to the health or safety of any person or persons or to the public interest (in the sense of the chance of the suggested harm being realised) and the consequences of the suggested harm being realised (in the sense of the seriousness of the harm that will ensue if the risk is realised): see X v The Commonwealth (1999) 200 CLR 177; [1999] HCA 63 at [41], which addresses risk in a different context. Reaching that state of satisfaction involves the Tribunal making an assessment of all of the evidence before it. Per Payne JA, Simpson AJA and Garling J at [20].
In the Tribunal, to similar effect is the decision, for example, in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56(4)] where it was held that what was required under s 150 is the formation of a "reasonable belief" that because of the health practitioner's conduct or performance the practitioner poses a serious risk to persons, and that it is appropriate to take immediate action to protect public health or safety.
Recently in Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 the Court recognised the distinction between the "two limbs" of s 150(1), and stated: [32] As such, and in the context of ss 3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see Hanna at [18]. … [35] … The Tribunal's reasoning at [29] and confirmed at [31] of its decision demonstrates that it erroneously confined its application of s 150 to the protection of the health or safety of the public. That application is out of keeping with the plain language of the statute, which clearly differentiates in its two limbs between the protection of the health and safety of the public, and the public interest. The public interest is a broader concept, encompassing wider community interests such as the standards to which human conduct is to be held: see Smith, extracted earlier. The Tribunal's failure to properly apply s 150 of the National Law constitutes a constructive failure to exercise jurisdiction and an error on the face of the record. The decision of the Tribunal dated 12 December 2019 is set aside.
In respect of the s 150C(2) power it must be borne in mind that the exercise of the power "to take any other action it could have taken under that section (s 150) at the time of taking the original action" is subject to the same constraints as expressed above. The power is conditioned by satisfaction as to an immediate and unacceptable risk to persons or the public interest justifying an order on an interim basis. This is particularly so where the Council has resolved to convene a Council inquiry to take place under ss 148 to 148I of the National Law, matters here still on foot.
It is thus important to bear in mind that the exercise of the power under s 150(1) of the National Law is separate from the powers available for dealing with complaints and is reserved for urgent cases. The power is separate from the powers available on inquiry by a council under ss 148 to 148I. However, when determining whether the power conferred by s 150 should be exercised for the protection of the health and safety of the public the fact that such an inquiry has been initiated is a relevant consideration (Trinh v Medical Council of New South Wales [2022] NSWCATOD 105 at [78] per Coleman SC ADCJ).
However, the s 150 powers, including when being considered in the context of s 150C(2), are only to be invoked as an emergency power where the circumstances are urgent. Division 3, which includes ss 148 to 148I provides for the primary mechanism for regulating the profession by way of a separate process and route.
A further relevant consideration in the present matters is that any decision by the Council under s 150 is subject to the further exercise of the powers in s 150C and s 150A which allow for the ending of a suspension or removal or variation of conditions imposed following a s 150 hearing and decision. The existence of these avenues is also relevant to the question of whether a practitioner has been afforded procedural fairness in the initial s 150 proceedings (see EFQ (a pseudonym) v Medical Council of NSW [2021] NSWCA 167 at [74]).
The decision of the Council to suspend the registration of the Appellant or impose conditions on the registration of the Appellant involved, in effect, two discretionary decisions. The first was as to the delegates' satisfaction as to the appropriateness or otherwise to do so for the protection of the health or safety of any person or persons, or if satisfied otherwise it is in the public interest. The satisfaction involves a degree of subjectivity and thus, in a broad sense is a discretionary decision (see Coal and Allied Operations Pty Ltd v AIRC (2000) CLR 194 at 205 [20] per Gleeson CJ, Gaudron and Hayne JJ in respect of similar legislative provisions).
If the requisite satisfaction was reached, that necessitated the making of a further discretionary decision as to the appropriateness of suspension or of any conditions which should be imposed (Coal and Allied at [20]).
The Council's satisfaction under s 150 is as to the "appropriateness" of taking action, not whether it is "necessary" to do so, the former being a less stringent test (Steel v Medical Council of NSW [2020] NSWCATOD 77 at [35] per Boland AM ADCJ).
The task of considering the nature and extent of the risk must have regard to the guiding principles stated in s 3A of the National Law, namely, that the protection of the health or safety of the public must be a paramount consideration.

Suspension Appeal

The grounds of appeal are summarised by the Appellant as follows: 1. lack of procedural fairness (Ground 3.2.1); 2. the principle of legality involving the implied freedom of political communication and common law right to bodily integrity (Grounds 3.22 to 3.26 and 3.29); 3. harshness and proportionality (Grounds 3.27, 3.28 and 3.2.10).
In respect of the lack of procedural fairness the Appellant in his written submissions argues that procedural fairness requires that the decision maker is impartial, and free from actual or apparent bias, and that the person affected by the proposed decision receives a fair hearing, including an opportunity to respond to any adverse material that could influence a decision, the latter relying on Kioa v West (1985) 159 CLR 550 at 563 per Gibbs J.
On the evidence, and we find, that: 1. on 9 September 2021 the Appellant was notified that the Council intended to hold a s 150 meeting on 17 September 2022; 2. the notice to the Appellant on 9 September 2021 from the representative of the Council included an invitation to the Appellant, namely, "feel free to contact me if you have any questions"; 3. at the same time, on 9 September 2021 the Appellant was furnished with a letter of that date warning the Appellant of the seriousness of the possible outcomes of the s 150 proceedings, including suspension and advising him that he may seek legal advice; 4. the Appellant at the same time was provided with a Fact Sheet warning him of the seriousness of the possible outcomes of the s 150 proceedings, including suspension and advising him that he may seek legal advice; 5. on 14 September 2021, the Appellant became aware that a directions hearing would be held before the Chief Judge at Common Law in the Supreme Court on 17 September in respect of proceedings he had earlier instituted against the Minister for Health and Medical Research, the Honourable Bradley Hazzard. The Appellant was aware that it would be a procedural hearing to set a time frame for the substantive hearing of the matter; 6. accordingly, from Tuesday 14 September 2021, the Appellant knew that the Supreme Court directions hearing would be taking place at the same time as the proposed s 150 hearing before the Council, a hearing he described as in a "kangaroo court", one that he would not prioritise over the Supreme Court directions hearing; 7. the Appellant did not regard attending the Council proceedings as a priority at that date; 8. the Appellant said in evidence that as far as he was concerned the Council hearing would not take precedence over the Supreme Court directions hearing and that it was ludicrous that he would turn up before the Council and not the Supreme Court on 17 September 2021; 9. after receipt of the notice from the Council dated 9 September 2021 the Appellant was in regular contact with his legal team and thought that they would organise an adjournment of the Council proceedings and proceeded on the basis that the Council had been contacted by his legal representative; 10. at about midday on 16 September 2021, a representative of the Council called the Appellant on his mobile phone, he answered but said he was not able to speak, as the Appellant in fact was consulting with his medical practitioner at the time with a view to pursuing a worker's compensation claim; 11. later, by email on that day he was advised that the Council would encourage him to attend on 17 September 2021 to make oral submissions and provide further information regarding the complaints and in the absence of his not attending the Council would proceed with the hearing and make a decision based on the information before it; 12. the first contact with the Council initiated by the Appellant was by email on 16 September 2021 at 4:49 pm, in which he advised the Council that he was not in a position to attend "your matter tomorrow due to my legal representation being required in the Supreme Court of NSW before Chief Judge Beech-Jones" and requested that the matter be deferred until Monday, 20 September 2021 13. there were then further email exchanges between the Appellant and a representative of the Council and at 4:56 pm on the 16th the Appellant advised a representative of the Council that he would not be able to attend the hearing as he had a Supreme Court hearing at 10:00 am on the following day; 14. the Council's representative informed the Appellant that it was unlikely, given the lateness, that he would be able to provide the Appellant with a response on 16 September 2021 ; 15. the Council also then sent to the Appellant a bundle of documents for the hearing on the following day; 16. the Council later rescheduled the start of the s 150 hearing from 9:30 am to 12:30 pm on 17 September 2021 and they were then conducted from about 12:30 pm by 'Skype'; 17. the s 150 hearing then commenced shortly after 12:30 pm on 17 September 2021

Appellant's Submissions

The Appellant in written submissions makes a number of claims in relation to the proceedings including the following: 1. that on 16 September 2021 at 4:49 pm he had emailed the Council for a deferral as he was required to appear before the Supreme Court of New South Wales on 17 September 2021and "had not had an opportunity to obtain legal advice"; 2. on 16 September 2021, he was provided with additional information and he was given no time to consider and read that information, being policies authored by AHPRA; 3. the Appellant was "required to be present in the New South Wales Supreme Court" and in the s 150 hearing on the same day and only had access to voluminous documents for a short period of time and had an inadequate opportunity to give instructions or seek advice to prepare for the s 150 hearing; 4. on 16 September 2021, the Appellant wrote to the Council by email and informed it that "he had not yet had an opportunity to obtain legal advice about the contents of the letter dated 9 September 2021"; 5. the Appellant received a bundle of documents on 16 September 2021 which had never before been raised with him in the context of the complaints made against him for the proposed hearing; 6. the Appellant was given no time to consider the documents nor could be prepare any response; 7. despite requests the Appellant had not been given un-redacted complaints and was therefore denied the opportunity to respond to the complaints in the context of the relationship with the complainants; 8. the failure to grant a proper adjournment was a denial of procedural fairness.
On the evidence, and we find, the Appellant had ample opportunity to obtain legal advice from 9 September 2021 and, in fact, he was in contact with his legal representatives who were, as he understood the matter, organising an adjournment.
The Appellant's concerns about "no time to consider and read the policies relied upon" must be seen in context where, as a registered paramedic he was obliged to be aware of the policies which from the time of his registration were binding on him and he was required to comply with their terms.
The bundle of documents sent to the Appellant late on 16 September 2021 was a resending of documents earlier provided to him plus the following: Paramedicine Board of Australia - Code of Conduct; AHPRA Social Media Guideline; AHPRA statement on Registered health practitioners and students and COVID-19 vaccination; and AHPRA Guidelines for advertising a regulated health service. Each of these documents were relevant to his registered status and he was required to comply with their contents, thus required to have knowledge of their contents.
Contrary to the Appellant's submission he did not on 16 September 2021 write to the Council as alleged to inform it that he had not yet had an opportunity to obtain legal advice about the contents of the letter dated 9 September 2021. His email does not contain this statement.
It was not correct to say that the Appellant had never before 16 September 2021, had raised with him the contents of the 200 pages referred to when a large part of that material had earlier been provided to him and, as we point out above, he was bound by and required to be aware of the policies and their contents.
In our view, it was not necessary for the Appellant to be given copies of un-redacted complaints when the complaints as provided identified the specific conduct requiring a response from the Appellant. The context of the complaints made against the Appellant concerns his use of social and mainstream media to spread his views. The Appellant's broadcasts are well documented, and it cannot be said that he is prevented from understanding the nature of the complaints made against him. We do not accept that the redacted material was relevant to the proceedings before the Council or to the resolution of these proceedings to maintain the protective nature of the jurisdiction.
In our view, the absence of un-redacted documents did not deny the Appellant procedural fairness in that the content of the conduct which was the subject of the complaints was apparent from the interviews the Appellant conducted on social media and the other media reports.
In addition, at the commencement of the hearing before the delegates of the Council on 17 September 2021 the Appellant confirmed, in response to an enquiry as to whether there was any written material that he wanted the Council to take into account, that there was nothing he wished to provide unless the Council specifically wanted a response from him.
At the conclusion of the hearing on 17 September 2021, the Council delegates indicated to the Appellant that the delegates were going to need some time to talk amongst themselves and because of changing the time to accommodate the Appellant on 17 September 2021 there were some time constraints, but if the Appellant wished to put something more in writing to the Council he could have until the close of business on Monday, 20 September 2021 to do so. The Appellant responded that he did not wish to put anything more in writing and when informed again that the panel wished to give him the opportunity to do so the Appellant indicated in words to the effect that "I can see where this is heading so, you know, I'm quite happy with where we're at. I'll let the barrister sort it out, that's fine". The Appellant did not thereafter provide any further response to the Council in respect of the complaints or the matters raised with him during the proceedings.
In addition, the Appellant's evidence before us was to the effect that he was familiar with the code of conduct provided to him and the AHPRA COVID-19 position statement. He also said that he had forwarded the email of 9 September 2021 and its attachments on to his legal advisors.
In the written reasons provided by the Council on 21 June 2022 under the heading "Appeal and Review Rights" the Council also advised the Appellant that under s 150C of the National Law the Council may, at any stage, end a period of suspension imposed or remove or alter conditions imposed as a result of those proceedings.
In our view, the Appellant was not denied procedural fairness. He made no real effort to prepare for, or deal with, the contents of the complaints prior to 17 September 2021 despite the warnings as to the seriousness of the matter. He adopted a dismissive approach to the proceedings. He went about other business, pursuing a workers compensation claim on 16 September 2021. He clearly had every opportunity to obtain legal advice. He did not provide a response or arrange for his legal representatives to provide further information to the Council as he was advised he could do. The Appellant chose not to take up the opportunity offered to him to respond further in writing by 20 September 2021.
In our view, a refusal to grant the adjournment to the Appellant to the following week also did not in the circumstances amount to a denial of procedural fairness where: 1. there is no evidence as to why the Appellant was required for a directions hearing in the Supreme Court on 17 September 2021; 2. he delayed until the last moment, late on 16 September 2021 and, on the eve of the hearing, to seek an adjournment; 3. at all relevant times he had legal representation and from 9 September onwards had been in contact with his legal representatives and had on-sent the documents from the Council to them, the same legal representatives who were conducting the Supreme Court proceedings; 4. the Appellant was given the opportunity prior to the hearing and at the conclusion of the s 150 hearing on 17 September 2021 to put in any additional written submissions, but he chose not to do so; 5. the suspension pursuant to s 150 was of an interim basis; 6. the Appellant had the ability, and had been given notice in the reasons of the Council, to immediately seek to have the suspension reviewed pursuant to s 150C of the National Law a relevant consideration as recognised in EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167 (at [74] per Bell P, Macfarlane and Brereton JA agreeing).
We therefore reject the Appellant's claim that he was denied procedural fairness in respect of the s 150 proceeding on 17 September 2021.

Principle of Legality

In support of this ground the Appellant argues that it is "settled law that there is the Australian Constitution provides for an implied freedom of communication about governmental or political matters", relying on Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, McCloy v New South Wales (2015) 257 CLR 178 at 200 [23].
The Appellant quotes from part of the paragraph [44] from the judgment of Chief Justice Kiefel, and Justices Keane and Gleeson in the case of LibertyWorks Inc v The Commonwealth [2021] HCA 18 at [44] but omits the crucial sentence at the end of that passage which states "The freedom operates as a constitutional restriction on legislative power and should not be understood to be a personal right".
The Appellant then argues that his remarks on social media and to various news outlets "were expressions of his personal opinion about the NSW government's political approach to managing the COVID-19 pandemic. He was entitled to his opinions pursuant to the implied freedom and he clearly expressed that those opinions were his alone, rather than reflective of NSW Health".
The Appellant made no attempt to address the legal principles, and made no submissions as to whether the "freedom" claimed was unjustifiably burdened by the exercise of legislative power (as to the correct approach, see for example, Burton v Director of Public Prosecutions [2022] NSWCA 242 at [14] to [16] per Kirk JA, with whom Bell CJ and Leeming JA agreed).
The approach of the Appellant in this regard appears to treat the Appellant as having a constitutional right to express himself on political matters, which he claims were unduly infringed upon, by the Suspension Decision. However, that was not the analysis the constitutional question called for (see Chief of Defence Force v Gaynor [2017] FCAFC 41 at [63] per Peram, Mortimer and Gleeson JJ).
The Appellant's approach is similar to that pursued in Buckley v Council of the Law Society of New South Wales [2022] NSWSC 328 at [46] to [50] per Ward CJ in Eq and which was rejected.
We therefore conclude that there is no substance to this ground.

Claimed Right to Bodily Integrity

The Appellant then argues that the Council erred in failing "to take into account" the Appellant's asserted right to bodily integrity, and in that regard, relies on Secretary Department of Health and Community Services v JWB (Marion's case) (1992) 175 CLR 218 at [232]. He argues that the "acts of vaccination" involves a breach of bodily integrity. The Appellant says that the question is whether, in this case, there existed the requisite consent to transform the breach into a lawful act.
Faced with the decisions of the Supreme Court in Kasam v Hazzard [2021] NSWSC 1320 and Larter v Hazzard [2021] NSWSC 1451 the Appellant argues that those cases are distinguishable.
We do not accept these contentions. A proper analysis is that the suspension of the Appellant's registration effectively curtailed his speaking as a registered and practising paramedic but so far as the right to bodily integrity is concerned, it was not violated as the suspension did not in any way amount to an act of vaccination, or authorise the involuntary vaccination of anyone (Kasam v Hazzard at [9], [55] per Beech-Jones CJ at CL). As his Honour found in that case, a consent to vaccination "is not vitiated and a person's right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry into a construction site." The particular Public Orders under consideration in that case, his Honour held, did not violate any person's right to bodily integrity any more than a provision requiring a person undergoing medical examination before commencing employment does (at [63]).
We reject the Appellant's arguments as to a failure by the Council to take account of the Appellant's asserted right to bodily integrity, a right which has no application to the present appeals.

Harshness and Proportionality

The Appellant then argues that the "penalties" imposed on the Appellant in the form of the Suspension Decision were manifestly harsh and excessive when considering the actual risk that the Appellant posed to the workforce, his long history of service and his age and life circumstances at the time of dismissal. Although this submission is made in respect of both the Suspension Decision and the Conditions Decision it appears to relate more particularly to the Conditions Decision.
The Appellant, nonetheless, argues that in respect of each of the Decisions the Appellant posed no greater risk in the workforce than a worker who had been vaccinated but who had not received a booster shot within 6 months, relying on Falconer v Chief Health Officer (No. 3) [2022] WASC 270 at [137]. He then argues that he represented no greater risk than any member of the public who was not vaccinated but who presented to a hospital. No evidence was put forward to support these assertions.
The decision of Justice Allanson in the decision relied upon, Falconer at paragraph [137] reads as follows: The respondents' experts agreed that waning vaccine effectiveness, particularly against mild infection and ongoing transmission, has been demonstrated particularly six months after the second dose. Professor Blyth estimated (Professor McIntyre agreeing) that around 25% of vaccinated police officers were accordingly at risk of infection. Both also expressed the opinion, however, that waning effectiveness was particularly demonstrated against mild infection, less against severe infection. Both also said that ensuring the highest possible vaccination uptake 'is a clearly demonstrated way to reduce the risk to the individual and the community with highly transmissible variants such as Delta'.
A fair reading of that summation of the evidence in that case in our view does not provide any support for the arguments raised by the Appellant.
In the absence of probative evidence to support the Appellant's assertion concerning the risk he poses, or does not pose, as an unvaccinated paramedic, we reject this argument.
The Appellant then argues in his written submission that imposing the suspension the Council directly contributed to the Appellant's dismissal from NSW Health on 3 March 2022 for reasons including that he was no longer able to carry out his duties as a paramedic because his registration was suspended indefinitely.
However, the exercise of the powers under s 150 are to protect the health and safety of persons and to protect the public interest. The exercise of the power to suspend registration on an interim basis clearly will impact on a practitioner's ability to work as a registered paramedic. The consequence, however, flows from the practitioner's conduct considered to be an immediate and unacceptable risk. The Council, however, has no control over how the practitioner's employer reacts to that outcome.
We do not perceive any point of law arising from these submissions which undermine the validity of the Suspension Decision.

Improper Purpose and Ultra Vires

The Appellant argues that "the high bar for suspension and/or imposition of conditions set out in s 150C(1) of the National Law was not satisfied on either occasion (suspension or imposition of conditions) and it was "additionally improper for the Council to use the powers in the National Law to punish the Appellant for the expression of his opinions on political and governmental issues and to stifle his descent rather than to address any true public health issue.
Section 150C(1) had no role in the Suspension Decision. In addition, we reject the argument that the s 150 power to suspend the Appellant's registration was exercised "to punish" the Appellant. The reasons published by the Council on 7 October 2021 address the risks posed by the Appellant's repeated conduct. There is, in our view, no basis for asserting that the power was exercised "to punish" the Appellant and this argument is rejected.
We also reject the submissions that the power under s 150 was exercised for an improper purpose or ultra vires in respect of the Suspension Decision which we are addressing in this section of our reasons.
The Appellant argues that the lifting of the suspension of the Appellant's registration in June 2022 amounts to a concession by the Respondent that the 'correct and preferable' decision was that the suspension was not warranted at any time and amounts to "a capitulation to the Suspension Appeal". We do not agree. The circumstances required to be considered in June 2022 were different from those which, in our view, enlivened the Council's powers under s 150 in September 2021.
The Appellant also argues that he cannot be criticised for deciding to file the Suspension Appeal rather than seek a review pursuant to s 150A, both avenues available to him. However, the Appellant must take the consequences of that choice. It is argued, for example, that in the s 150 proceeding he was not invited to consider the imposition of conditions on his registration as opposed to suspension at the time. Section 150A and s 150C are specific provisions which could deal with the willingness on the part of the Appellant to pursue such an outcome. Immediately after being notified of the suspension he could have followed that course. The Appellant could also have requested the Council to exercise the powers under s 150C if he wished to address any issues which he had been unable to deal with on 17 September 2021.
We do not accept the Appellant's argument that the effect of the Suspension Decision was to "punish the Appellant for the expression of his opinions because they (both decisions) have deprived him of his livelihood in excess of what is required to protect the health and safety of the public". There was in our view as at September 2021 a valid basis for the satisfaction of the Council as to the appropriateness of the suspension for the protection of the health or safety of any person or persons or otherwise in the public interest.
We also do not accept the Appellant's arguments that the non-referral of the complainants made against the Appellant in 2021 to the Tribunal under s 145D is to be taken as a conclusion that the Council in the s 150 proceedings could not have formed the requisite level of satisfaction to exercise those powers addressed to the risks identified.
As has been made clear in Pridgeon, the powers are separate, the s 150 power being an emergency power for the protection of the public as opposed to how complaints are dealt with (see, also Trinh v Medical Council of NSW [2022] NSWCATOD 105 at [73] and [78]).
In respect of the complaint by the Appellant as to the standard of proof required we note that the "Briginshaw standard" does not apply in s 150 proceedings and s 159 appeals (Medical Council of NSW v Smithson [2021] NSWCA 53 at [35]).

Conclusions in Respect of the Suspension Appeal

For the reasons set out above we have concluded that there were no points of law raised under s 159B justifying the setting aside of the s 150 Suspension Decision and that appeal should be dismissed.
In respect of the s 159 appeal against the Suspension Decision we note the following: 1. there is no appeal against the ending of the suspension by the Council on 14 June 2022; 2. in our view, there is no utility in determining the appeal in those circumstances particularly where, as a result of the suspension being ended, there is no public record of the suspension; 3. in relation to the argument by the Appellant that because there were issues of costs and therefore some utility in the appeal, we are of the view that that matter can be addressed separately in any appropriate costs order that may be made following submissions by the parties at the end of these proceedings; 4. in circumstances where there have been a number of changes in the 16 months since the Suspension Decision, including the fact that the Appellant has not been able to practise as a paramedic, has not been in a position to lawfully express views to the public whilst representing orally, or by the wearing of his uniform, that he is a paramedic, and where it is unlikely that he is going to find employment immediately, we do not think that it is appropriate to now, in effect, judge the correctness or otherwise of the suspension made in September 2021; and 5. in our view the evidence before the Council and before us as to the state of affairs as at September 2021 justified the exercise of the s 150 powers.
Any order under s 159C in respect of a s 159 appeal based on the evidence now before us will not without more operate to affect the validity of the Council's original decision.
Any orders now made under s 159C would be directed at a suspension decision which is no longer operative.
The power available to the Tribunal under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) was explored in some detail in NG v Chinese Medicine Board of Australia [2017] NSWCATOD 36 (Ng). The following passage from the decision of Judge O'Connor in AVS Group Australia Pty Ltd and Tony Sleiman v Commissioner of Police [2012] NSWADTAP 24 was quoted with approval: [24] There is no fixed rules of the kind for which the Commissioner contends that would have required the Tribunal to enter an order of dismissal simply because the underlying entitlement, licence or authority had ceased to operate. [25] In these circumstances, the question of whether the Tribunal should continue to deal with the dispute is to be judged by reference to discretionary considerations relating to the proper management of the proceedings, and having regard to the statutory powers given to the Tribunal including its formal powers of dismissal. [26] Those discretionary considerations will include the question of whether there is a live dispute or controversy. In that regard, I accept, of course, that it is not appropriate that the Tribunal, or the Appeal Panel, spend time dealing with idle disputes or giving advisory opinions, both for resources reasons as well as ones of intellectual precision. I accept, too, that a dispute may lose its character as a real controversy during the time it is before the Tribunal or the Appeal Panel.
Also quoted with approval in Ng was the following passage from the decision of Professor Walker in Fox v Commissioner of Police [2016] NSWCATAD 77 at [26]-[31], which accurately sets out the law applicable in the present matter: [26] Section 55(1)(1)(b) provides that the tribunal "may dismiss at any stage any proceedings before it" if it considers that "the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance". In everyday usage such language would appear to carry somewhat censorious overtones, but its technical legal meaning is simply that the application lacks a legal foundation. Thus in 601 Management Company Pty Ltd v Commissioner of State Revenue [2011] VCAT 2129, [12], the Victorian tribunal observed that the words "frivolous, vexatious and lacking in substance are very pejorative terms" that refer, in this context, "merely to matters which are not legally properly based". The term "misconceived" represents a claim that does not "disclose a cause of action", while "lacking in substance" may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142. There is also an overlap between the concepts identified in s 55(1)(b). For example, a proceeding may be frivolous or misconceived because it is lacking in substance: Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125, [39]. [27] The words "at any stage" mean inter alia that an application that is legitimate when commenced can become vexatious because of changes in circumstances. Thus, if no purpose will be achieved by continuing the application, even though the applicant is genuine in his or her belief in the matter raised, the application should be struck out: Re Williams and Australian Electoral Commission [1995] AATA 160, (1995) 38 ALD 366. The defect must be apparent on the face of the pleading (Cairns, Australian Civil Procedure, 10th edn. 2014, 508) or, in the case of tribunal proceedings on the face of the statements of facts and contentions, and evidence is not normally admissible on the point (ibid). A proceeding that constitutes an abuse of process may be dismissed as frivolous or vexatious: Re Hinds and Australian National University [2012] AATA 495, (2012) 129 ALD 476, 480, [18] (the tribunal in that case assumed the correctness of a submission on that point by ANU); see also Pearce, Administrative Appeals Tribunal (2014), 15.14. [28] In Re Filsell and Comcare [2009] AATA 90, [33], Jarvis DP set out the principles to be followed in relation to such applications under the corresponding federal legislation. They included the following: (a) the word "frivolous" in combination with "vexatious" is a technical legal term, which means that there is no legal basis for the proceeding; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings…. (b) the expression "vexatious" can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are "so obviously untenable or manifestly groundless as to be utterly hopeless": Attorney-General v Wentworth (1988) 14 NSWLR 481, 491 per Roden J, or if the proceedings have "no reasonable prospect at all of success"…. [29] A proceeding is thus vexatious if it is brought for a collateral purpose (Cabot v City of Keilor [1994] 1 VR 220, following Wentworth) or if the outcome of the proceedings, whether successful or not, will be devoid of any practical effect: Re Williams at 374. The proceeding is "misconceived" if it is obviously untenable, for example if the claim is statute-barred: Sleigh v Victoria [2010] VCAT 2057, [8]). The cost implications for both the tribunal and the respondent of continuing the proceeding are also relevant, as Jarvis DP observed in Filsell: (d) However, if proceedings have no reasonable prospects at all of success, they should be dismissed …, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing" (loc. cit. supra). [30] That consideration was also applied in Re Irving and Repatriation Commission (1997) 46 ALD 20. The tribunal (the AAT) there stated that the desire to restore honour and secure vindication had to be balanced against other factors, including the cost to the respondent. The proceedings in that case could have no practical effect as the applicant would receive no monetary benefit from a favourable result. They should therefore be dismissed as vexatious (at 26). [31] Where the applicant is seeking only restoration of honour (i.e. clearing his name) and has no chance of success in the proceeding, the matter should be dismissed (id.). While the power should be exercised cautiously and sparingly (Re Williams, [39]), the High Court explained in Williams v Spautz (1992) 174 CLR 509 that it is not necessary for the sole purpose in continuing an action to be collateral to the process, and concluded rather that it is sufficient that the collateral purpose is the predominant one. That proposition was adopted in Re Hinds and Australian National University [2012] AATA 495, (2012), 129 ALD 476, 480 - 481; see also Burns v Laws [2005] NSWADT 229, [9]. In Spautz, Brennan J pointed out that there is no impropriety of purpose in maintaining a proceeding with an ulterior purpose or motive, but said the matter should be dismissed if the proceeding was for a purpose that did not include, at least to any substantial extent, the obtaining of relief within the scope of the remedy.
Contrary to the Appellant's submissions the dismissal of the s 159 Suspension Appeal pursuant to s 55(1)(b) of the CAT Act will not affect any future deliberations by the Council as there is nothing in the provisions of the National Law supporting that argument (see Samuell v Medical Council of New South Wales [2020] NSWCATOD 149 at [43] and [49] per Cole DCJ, Deputy President).
The appeal thus became an appeal which is misconceived and lacking in substance. The setting aside of a decision which is no longer operative by reason of the decision of the Council in June 2022 would have no practical effect in the scheme provided by the National Law.
We take into consideration also that the making of the decision under s 150 did not involve the Council arriving at concluded views on the facts, but was simply the result of a risk assessment made at the time.
There is, in our view, no utility in the Tribunal now reconsidering the decision giving rise to the Suspension Appeal in the different circumstances which now apply.
In respect of the s 159 Suspension Appeal we therefore do not propose to rehear that appeal in circumstances where the suspension was lifted in June 2022 and there is now no record of the suspension on the publicly available registration sites which recorded the suspension in the first place.
Accordingly, we dismiss the s 159 Appeal pursuant to s 55(1)(b) of the CAT Act.

Conditions Appeal

As we point out above, the notice of appeal in this matter is against the imposition of the conditions imposed on the Appellant's registration on 14 June 2022 and although there is no specific reference to s 159B in the notice of appeal it appears that the Appellant seeks to also rely on points of law in support of this appeal.
As the Respondent emphasised, correctly in our view, the Tribunal exercising a de novo appeal effectively stands in the shoes of the Council at the time of the hearing and must reach the requisite state of satisfaction that it is appropriate to impose conditions on the Appellant's registration for the protection of the health and safety of any person or persons and/or is satisfied that the action is otherwise in the public interest.
We come to determine the issue under s 150C at a time when the Appellant's suspension has been ended by order of the Council on 14 June 2022 and in the following circumstances: 1. the Appellant is no longer employed by NSW Ambulance although he has made an unfair dismissal application in the Industrial Commission of New South Wales which is to be heard in the first part of 2023; 2. the Appellant is not entitled to lawfully represent himself as a paramedic or wear a paramedic uniform; 3. as the Council noted in its decision to impose conditions on the Appellant's registration, the Appellant had said that as long as the public health order for vaccination mandates remains in place, a return to practise with NSW Ambulance is not possible and, even if the public health order is lifted, NSW Ambulance has in place a requirement that paramedics (and others) be vaccinated against COVID-19; 4. it is therefore unlikely the Appellant will be able to return to practise at NSW Ambulance in the foreseeable future; 5. as the Appellant claimed most, if not all, other potential employers of paramedics have requirements that employees have been vaccinated against COVID-19; 6. the Appellant remains unvaccinated; 7. it was therefore unlikely that the Appellant will be able to work in the immediate future as a paramedic due to the public health order and the employers' requirements, although that could change at any time in New South Wales or in other jurisdictions; 8. circumstances are currently very different from when the suspension order was made in September 2021, particularly since significant public health restrictions have been lifted and, we accept, that large numbers of the population have now been vaccinated; 9. on the evidence before us, although after the suspension order was made the Appellant continued to make further statements resulting in further complaints, it does not appear that since June 2022 any public statements of the kind that led to his suspension have been made and no evidence of the Appellant doing so in the capacity as a paramedic and/or wearing his uniform.
We also note that in the absence of working as a paramedic there is no prospect of "patient contact" in respect of which he could influence patients with views that are contrary to those of experts.

Section 150C(2) - Exercise of Section 150 Powers Now

As we point out above, the imposition of conditions under s 150C(2) requires the evaluative judgments to be made under s 150(1).
We are not satisfied on the evidence before the Council on 14 June 2022, or now before us, that the requisite satisfaction could have been, or can now be, reached as to the key issue required under s 150(1) or that it was or is appropriate to impose conditions on the registration of the Appellant by the exercise of the s 150 powers. We are not satisfied that, on the evidence, the relatively high threshold for the exercise of the s 150 powers which we identify above could have been met or are met.
We are not satisfied that there was as at 14 June 2022, or now, an immediate and unacceptable risk to the health and safety of a person or persons, or to the public interest enlivening the emergency powers under s 150 of the National Law as part of the s 150C proceeding. The circumstances set out at paragraph [107] above point the other way.
That does not mean that on the evidence as presented before the delegates on 10 June 2022, and before us, that there is no risk of the Appellant repeating the conduct complained of.
It is certainly arguable that the conduct explored poses a risk to the health and safety of persons and to the public interest. It also appears that the conduct complained of (and not fully tested) may be contrary to various codes of conduct binding the Appellant as a registered practitioner. That risk exists particularly since the Appellant has no expertise in the matters upon which he expresses views where expert knowledge and training is required. The Appellant also appears to remain largely dismissive of his obligations to comply with the restrictions that come with registration in respect of public comments as required by the various AHPRA policies and codes.
The Appellant still appears to regard himself as free to speak out if he perceives anything to be not safe, regardless of the consequences, and regardless of whether his perception of what is, or is not, safe is soundly based or contrary to the codes of practice.
In addition, as is noted above, a s 148 inquiry has commenced and findings may need to be made on the evidence as fully presented and explored in those proceedings, a process different from that which we are undertaking at present. On the evidence we have no reason to conclude that the s 148 inquiry process will not be pursued.
In our view, given that the s 148 inquiry process has already been initiated, the risks we outline above are more appropriately dealt with by that process which, as we point out above, can result in the imposition of conditions tailored to the circumstances as they then exist and with a specific timeframe.
Accordingly, we are of the view that the decision of the Council of 14 June 2022 insofar as it imposed conditions on the registration of the Appellant be set aside.
Section 159C does not appear to readily accommodate how to deal with a decision with the two elements applicable in this case. It seems, however, that the outcome we have arrived at, not disturbing the ending of the suspension (which was not challenged) and setting aside the second element, the imposition of the conditions, can be dealt with by setting aside the decision (as a whole) and by making a new decision that the Council could have made on 14 June 2022, namely, a decision ending the suspension imposed on 17 September 2021 only.

Orders

We make the following orders: 1. The external appeal pursuant to s 159B of the National Law be dismissed. 2. Pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the external appeal lodged by the Appellant pursuant to s 159 of the National Law against the suspension of his registration as a paramedic be dismissed. 3. Pursuant to s 159C(1)(c) of the National Law the decision of the Council of 14 June 2022 be set aside and a new decision is made only to end the suspension of the Appellant's registration as a paramedic made on 17 September 2021 with effect from 14 June 2022. 4. The parties will now be given the opportunity to address the question of costs and are to provide short written submissions supporting their claims by 14 February 2023.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 08 February 2023 - Coversheet - first names of applicant, removed. 17 July 2023 - Coversheet - Amend date of orders and date of decision to "08 February 2023"; amend titles for "M Smith" and "W Hughes" to "Senior Member". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2023

Medical Practice Act 1992(NSW)

(2020) 102 NSWLR 303

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