What does "consult" mean in s 84(3)?
40 This is a simple question which at first blush might be thought to generate an obvious answer. But there are respectable arguments in favour of each of the competing interpretations. Which is to prevail?
41 It is trite to observe that the task of statutory construction begins with the text itself, which may require consideration of the context, including the general purpose and policy of the provision and the mischief it seeks to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]. A construction that would promote that purpose or object must be preferred over one that would not: Acts Interpretation Act 1901 (Cth), s 15AA.
42 Section 84(3) does not expressly require that the Minister refrain from making an appointment until he or she has the AMA's response. It requires only two things of the Minister: that (s)he consult with the AMA and that (s)he make an arrangement with it under which it consults with other specified organisations and associations.
43 This of course begs the question of what is meant by "consult". Dr Lee relied first on the dictionary definitions. They are only of limited assistance, since they support both arguments. The Oxford English Dictionary, 2nd online edition, defines "consult" as:
1. [with obj.] seek information or advice from (someone, especially an expert or professional): if you consult a solicitor, making a will is a simple procedure.
2. have discussions with (someone), typically before undertaking a course of action: patients are entitled to be consulted about their treatment [no obj.] the government must consult with interested bodies.
3. refer for information to (a book, diary or watch).
44 The Macquarie Dictionary defines "consult" as:
1. to seek counsel from; ask advice of.
2. to refer to for information.
3. to have regard for (a person's interest, convenience, etc.) in making plans.
4. (sometimes followed by with) to consider or deliberate; take counsel; confer.
45 The Commonwealth relied on the interpretation of "consult" or "consultation" in a string of cases: Rollo v Minister of Town and Country Planning [1948] 1 All ER 13 ("Rollo"); Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 ("Port Louis"); TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172; Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306 ("Leichhardt MC"); Darling Casino Ltd v Minister for Planning & Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186; Bond v WorkCover Corporation of South Australia and Allianz Australia Workers' Compensation (SA) Ltd (2005) 93 SASR 315; and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (2010) 198 IR 382 ("CEPU v QR").
46 Each of these cases supports the construction for which the Commonwealth contends or, at least, is consistent with it. The Commonwealth draws attention to the observation of Sheller JA in Leichhardt MC at 338 that "the parliament must be taken to have chosen the word 'consultation' conscious of its use historically in this type of legislation".
47 The Commonwealth does not suggest that it is enough that the Minister simply go through the motions. It is well established that "the requirement for consultation is never to be treated perfunctorily or as a mere formality" (Port Louis at 1124). The Commonwealth submitted, however, that the requirement for consultation in s 84(3) was satisfied if the Minister supplied sufficient information to the AMA to enable it to provide advice and a sufficient opportunity to proffer advice (cf. Rollo at 17 per Bucknill LJ, Port Louis at 1133 - 1134). The Commonwealth contented that the provision falls short of requiring that the Minister wait until he receives the advice before making an appointment. If the AMA, through choice or neglect, failed to take advantage of that opportunity, then so be it.
48 The Commonwealth's argument was eloquently put and it has some attractions, but ultimately I have concluded that it must be rejected. The difficulty is that it pays insufficient attention to the legislative purpose as explained in Kutlu (to which I shall come shortly) and to the words of the statute in that they gloss over the presence in s 84(3) of the clause "before advising the Minister on the appointment". None of the authorities to which it referred considered a provision which contained a comparable clause. I would respectfully adopt what the Judicial Committee of the Privy Council said in Port Louis at 1124 when their Lordships were taken to some authorities on the meaning of consultation (including Rollo):
Helpful as the citations were, the nature and the object of consultation must be related to the circumstances which call for it.
49 Similarly, as Logan J explained in CEPU v QR at 395 [44], "what will amount to 'consultation' has about it an inherent flexibility".
50 The Commonwealth quite rightly insisted that the section should not be read in isolation. It contrasted s 84(3) with s 23DZC where the Minister's power to revoke a "remote area exception" is enlivened only after, amongst other things, a Medicare Participation Review Committee has provided certain advice to the Minister. This section appears in Pt IIB, not Pt VAA, and whilst the Act should obviously be read as a whole, I do not think that the wording of s 23DZC assists in deciding what is meant by "consult" in Pt VAA.
51 For all these reasons it seems to me that the question of construction is to be resolved by looking at the context and purpose of the legislative scheme introduced by Pt VAA. This was an issue considered at length in Kutlu.
52 Dr Lee relies on Kutlu, in particular on several passages in the joint judgment. Dr Lee did not contend that the remarks in the joint judgment in Kutlu were binding on the Court in this case. He submitted, however, that they were right. He emphasised the importance of the AMA's role in the scheme, a role described by Flick J in Kutlu at [81] as "pivotal".
53 In Kutlu Rares J and I held at [18]-[20]:
[18] [Sections] 84(3) and 85(3) contemplate that, after consultation with and advice from the AMA about them, the Minister can appoint persons, whose appointment the AMA did not support or opposed…
[19] It is implicit in ss 84(3) and 85(3) that the Minister must have regard to the consultation with, and advice of, the AMA in exercising the power to make an appointment. That is to say, the advice of the AMA is a relevant, though not decisive, consideration for the Minister in arriving at a decision to make an appointment…
[20] The appointment process contemplated in ss 84 and 85 is intended not only to ensure public confidence in the decisions reached after involvement of Committees, but also to ensure the confidence of the relevant professions, as well as the professional whose conduct is being reviewed. In the case of medical practitioners, that process was intended by the Parliament to be one for which the persons carrying out the review had been selected only after the Minister had received advice from the AMA and, through it, any other relevant professional organisation or association about a proposed appointee.
(Emphasis added.)
54 We said (at [28]) that the Parliament used the words "must consult" and "before advising" to achieve this purpose. We stressed (in [27]) that both consultation with and advice by the AMA on appointments are preconditions to the exercise of the appointment power in both ss 84(3) and 85(3).
55 Later (at [33]) when summarising the requirements of the sections, we explained that they confer a discretion on the Minister to appoint "after the preconditions of consultation with, and advice by, the AMA have been fulfilled and the Minister has had regard to that advice". Further, (at [36]) we said that the Minister was bound to take the AMA's advice into consideration when making an appointment under the two subsections and a failure to do so would be a jurisdictional error. In other words the AMA's advice was a relevant consideration in the Peko-Wallsend sense (see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39).
56 True it is, as the Commonwealth submitted, these remarks need to be seen in context. Kutlu was not concerned with the meaning of "consult". As I have already observed, it was an agreed fact in those proceedings that the Minister did not consult. Consequently, the Court did not have the benefit of argument on the point. Our remarks were made on the basis of an assumption that consultation would include the provision of advice. We did not consider the possibility that the AMA would not offer any advice. It was unnecessary to do so. The issue in Kutlu was the legal effect of the failure to consult. A proposition of law incorporated into the reasoning of an appellate court is not binding on later courts if the court merely assumed its correctness without argument - even if it forms part of the ratio decidendi: CSR Ltd v Eddy (2005) 226 CLR 1 at [13].
57 In Kutlu, however, the Court did hear argument about the purpose of s 84(3). Its decision on that question is binding.
58 Regardless of whether I am bound by Kutlu, I do not find the Commonwealth's argument compelling. In my opinion Parliament intended that the Minister could only make the appointments after he had received advice from the AMA. The whole purpose of the consultation, after all, was to obtain the AMA's advice. Despite what he said in his minute to the Minister, Dr Holmes appears to have understood this at the time he told the AMA in his 31 August letter that he was "seeking" (on the Minister's behalf) its advice; not merely giving it a chance to advise. Either that, or he was misleading the AMA.
59 The Commonwealth argued that Parliament could not have intended this outcome. It pointed out that the Minister does not control the AMA, the Colleges or any of the other organisations referred to in ss 84 and 85. It variously submitted that if Dr Lee's position was right, then each of those organisations could "hijack", "stultify" or "frustrate" the process or "hold it to ransom" by simply declining to respond. It further submitted that in the case of non-medical appointees, the effect of Dr Lee's position is that having regard to s 84(4), "a wholly unidentified group over which Parliament has no control and over which Parliament gives the Minister no control" could also hijack the process and this could obviously not have been intended.
60 I reject this submission. First, it ignores s 83 which, it will be recalled, only allows the Minister to appoint the Director if the AMA agrees. Secondly, the feared outcome could easily be avoided by the Minister informing the AMA that if it does not respond, the Minister will take the response to denote agreement. Thirdly, given the AMA's role in the establishment of the scheme and its interest in its success, I think it most unlikely that the AMA would choose not to respond. If it fails to respond, it is an easy thing to chase up a response. As for the position with the non-medical appointees, it is by no means certain that s 84(4) should be interpreted in the same way as s 84(3). For one thing, it does not refer to the organisations or associations advising the Minister. For another, the AMA is accorded special status in the legislative scheme.
61 Sections 84(3) and 85(3) expressly contemplate that the AMA will advise the Minister. The function of the consultation is not simply to notify the AMA of the Minister's intentions. Rather, Parliament intended that all decisions on appointments to Panels (and to the position of Deputy Director) be informed, though not dictated, by the advice of the AMA and through it the specified organisations and associations. Those decisions could not therefore be made without knowing how the AMA stood on the prospective appointments. In my view, the construction of s 84(3) that Dr Lee advances would better promote the purpose of the legislation than that for which the Commonwealth contends.
62 There are sound reasons why Parliament is likely to have intended that appointments be informed by the advice of the AMA and the professional organisations. Unbeknown to the Minister but well known to the AMA and his or her College, a person in consideration for appointment or re-appointment might recently have lost his or her specialist accreditation or have been suspended from practice. A doctor may have become infirm or erratic in ways that are not well known but which are discernible by his or her colleagues. The Minister would plainly want to know whether one of his or her proposed appointees is unsuitable for the position. I do not think that Parliament would have intended that the Minister could make an appointment without knowing what the AMA thought of them. The Act provides for a system of peer review, the success of which depends on its acceptance within the medical community.
63 In his second reading speech on the amendment bill that introduced Pt VAA, the Parliamentary Secretary to the Minister for Health explained that the amendments reflected "the outcome of a close consultative process with the [AMA]". The Parliamentary Secretary emphasised the "key role" the organisation had played in the development of the scheme "and in so doing has demonstrated that it takes seriously its expressed belief that it has a duty to cooperate in ensuring that the public resources earmarked for health care are appropriately utilised". It is clear that the cooperation of the AMA was seen as essential to the success of the scheme.
64 Subject to the Commonwealth's second contention, then, I am not satisfied that the Minister consulted the AMA as s 84(3) required before the GP appointments were made.
65 There is another thing. In the present case the Commonwealth accepted that, had the AMA given advice to the Minister on the appointments, the Minister would have been bound to take that advice into account. Of course, the AMA did give the Minister advice but the advice was received after the appointments were made. Although the 31 August letter informed the AMA that the current appointments would end on 24 January 2005, it did not inform the AMA that the decision on reappointments would be made before that date. Nothing in the AMA's correspondence indicates any appreciation of the fact that their advice was required by a particular time. The AMA had evinced an intention to respond to Dr Holmes's request for advice. It wrote back to him each time it had received a reply from a College to convey its advice and to pass on the advice of the College. By the time the minute was prepared, Dr Holmes had received three letters from the AMA informing him of its advice with respect to the proposed reappointments of those Panel members who were surgeons, pathologists and radiologists, and of the attitude of their Colleges. In her letter to Dr Holmes of 16 November 2004 Dr Mason said that she was aware that there were several outstanding replies from the Colleges to his request for "endorsement or otherwise" and she told him she would follow up the Colleges in the near future. Dr Holmes (and therefore the Minister) could reasonably have expected a response from the AMA about its position and the position of the Colleges on the remaining appointments. Until such a response was forthcoming, whether oral or in writing, consultation had not concluded. In the case of the GPs at least, the Minister's decision to approve Dr Holmes's recommendation and to make the appointments was premature.
66 Consultation under s 84(3) (and 85(3)) is a process. The first step is that the Minister consults the AMA. The second is that the AMA consults the appropriate Colleges. The third is that the AMA advises the Minister, unless the communications between them are such that the Minister may reasonably infer what that advice is. Only then may the Minister make the appointments.
67 Dr Holmes's assurance to the Minister to the effect that the legislative requirements had been met, though the outcome of the consultation was in some instances unknown, was mistaken.