Ground 1
68 The applicant submitted that the Authority took into account an irrelevant consideration (see ss 5(1)(e); 5(2)(a) of the ADJR Act), or otherwise misdirected itself or misunderstood its statutory task, when making the repayment and disqualification directions, by taking into account the:
(a) Director's statements of concerns, dated 3 October 2019, purportedly under s 106S of the Act, referred to at [29]-[31] above; and
(b) Committee's statement of concerns dated 2 March 2021 referred to at [38]-[41] above.
69 To successfully impugn the Authority's decision on the basis that it took into account an irrelevant consideration, the applicant must prove (i) that the Authority took into account, in fact, each of the Director's and the Committee's statements of concern; (ii) that those considerations were irrelevant considerations in that by taking them into account for a particular use or purpose, it was impermissible under the applicable statutory provisions; and (iii) that those applicable statutory provisions have the effect that taking the statements of concern into account will result in invalidity: Love v Victoria [2009] VSC 215 at [191]; see also Duffy v Da Rin [2014] NSWCA 270; 87 NSWLR 495 at [53].
70 However, relevantly, it is noted that the applicant's grounds of review are more expansive and include a purported misdirection from or misunderstanding of its statutory task. The bases for both grounds were intertwined and will be dealt with together.
71 It is clear that the Authority "had regard to" the Director's and the Committee's statements of concerns made pursuant to ss 106XA and 106XB of the Act. At FD[9], identifying the material relied upon, the Authority refers to having "regard to", inter alia, the letter from the Director dated 19 November 2021 providing additional information under s 106S of the Act. The letter, extracted in full at [49] above, included the following statements and attachments:
• I sent a written statement of concerns about Dr Li to the Australian Health Practitioners Regulation Agency (AHPRA) under sections 106XA and 106XB of the Act on 3 October 2019 during my review of Dr Li's provision of services. A copy of this AHPRA referral is enclosed.
• I sent a written statement of concerns about Dr Li, which I received from the Committee, to AHPRA under sections 106XA and 106XB of the Act on 3 March 2021. A copy of this AHPRA referral is enclosed.
72 The Authority also notes at FD[8] that it relied on the Committee's Final Report (which annexed the Committee's statement of concerns).
73 The Authority, thereafter, only refers to the fact of these statements of concern, in response to the applicant's submission about them at FD[56]-[57]. The applicant relies on FD[57]. It is worthwhile noting that this paragraph appears in the part of the Final Determination which addresses the applicant's submissions, and with respect to a specific submission made by the applicant which is extracted at [60] above. For completeness, the preceding paragraph of the Final Determination is also relevant, and both paragraphs are extracted as follows:
56. More generally, Dr Li submits that the Determining Authority may have inadvertently taken into account the Director's and the Committee's statements of concerns about significant threats to the life or health of Dr Li's patients and a failure to comply with professional standards, under sections 106XA and 106XB of the Act. Dr Li refers to section 106UAA of the Act, which makes clear that the Determining Authority must not take into account any statements of concerns the Determining Authority might prepare under those provisions.
57. The Determining Authority has not prepared any such statement of concerns in relation to Dr Li. Accordingly, section 106UAA does not apply. The Determining Authority also notes that in arriving at its findings of inappropriate practice, the Committee expressly disregarded the opinion which formed the basis of its statement of concerns, as it was required to do under section 106M of the Act. Equally, the Director notified the Determining Authority of the statements of concerns she provided to the Australian Health Practitioners Regulation Agency, under section 106S of the Act. The Determining Authority is required to take that information into account.
(Emphasis added).
74 The gravamen of the applicant's submission regarding why, by operation of the legislative scheme, if the Authority did take into account the statements of concerns they constituted "irrelevant considerations", was by reason of the preclusions that apply under ss 93(1), (8), (9), 106M(3) and 106UAA of the Act. These preclusions were said to reveal why the Authority was not able, purportedly under s 106S, to take them into account.
75 The applicant contends that the effect of the final sentence in FD[57] is that the Authority did take into account the Director's and the Committee's statements of concerns which, rather than being entitled to under s 106S, was prohibited because it may be inferred from the subject-matter, scope and purpose of the Act that there is an implied limitation on the factors to which the Authority may lawfully have regard to when imposing directions pursuant to ss 106TA(1) and 106U(1) of the Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40.
76 Sections 93(9), 106M(3) and 106UAA provide that the Director, Committee and Authority respectively are to disregard, for the purpose of them undertaking certain statutory tasks, opinions they have formed in statements of concern that the person under review caused a significant threat to the life or health of a person or failed to comply with professional standards when exercising their respective functions. The relevant provisions are extracted as follows:
93 Referral to a Committee
(1) The Director may, by writing, set up a Committee in accordance with Division 4, and make a referral to the Committee to investigate whether the person under review engaged in inappropriate practice in providing the services specified in the referral.
…
(8) If, in the course of the review that gave rise to the referral:
(a) the Director formed an opinion that any conduct by the person under review caused, was causing, or was likely to cause, a significant threat to the life or health of any person and sent a statement of his or her concerns to a person or body under section 106XA; or
(b) the Director formed an opinion that the person under review failed to comply with professional standards and sent a statement of his or her concerns to an appropriate body or bodies under section 106XB;
the referral must contain a statement that the Director formed that opinion and set out the terms of the statement sent to the person, body or bodies.
(9) The Director must disregard any opinion formed as mentioned in subsection (8) when making the referral.
…
106M Referral of matter to a regulatory body to be mentioned in Committee's report
(1) This section applies if, in the course of its investigation, the Committee:
(a) formed an opinion that any conduct by the person under review caused, was causing, or was likely to cause, a significant threat to the life or health of any other person and sent a statement of its concerns to the Director under section 106XA; or
(b) formed an opinion that the person under review failed to comply with professional standards and sent a statement of its concerns to the Director under section 106XB.
(2) The Committee must mention that it has formed the opinion, and set out the terms of the statement, referred to in paragraph (1)(a) or (b):
(a) if the statement was sent before the Committee prepared its draft report - in the draft report; and
(b) in the final report.
(3) The Committee must disregard any opinion formed as mentioned in subsection (1) when making findings for the purposes of its draft report or final report.
…
106UAA Referral of matter by Determining Authority to a regulatory body not to be taken into account by the Authority in making draft or final determinations
If the Determining Authority, in the course of considering a report by a Committee:
(a) formed an opinion that any conduct by the person under review caused, was causing, or was likely to cause, a significant threat to the life or health of any other person and sent a statement of its concerns to the Director under section 106XA; or
(b) formed an opinion that the person under review failed to comply with professional standards and sent a statement of its concerns to the Director under section 106XB;
the Authority must disregard those matters when making its draft determination or final determination.
(Emphasis added.)
77 The applicant submits that those "concerns" are matters which are to be referred by the Director, Committee or Authority to State and Territory regulatory bodies for their consideration such that it is "implicit" from these provisions that the legislature intended that the Authority is not to have regard to an opinion expressed in a Director's or Committee's statement of concerns made under ss 106XA or 106XB, when making its determinations.
78 It follows, according to the applicant, that on its proper construction, s 106S of the Act does not authorise the Director to provide a statement of concerns to the Authority. Further, those statements are not something which is "relevant" to the Authority making its draft or final determination (having regard to ss 93(9), 106M(3) and 106UAA) and its directions pursuant to s 106U.
79 The applicant contends that in its Final Determination, the Authority rejected the applicant's submission that it was not permitted to take into account the statements of concern by it saying it was "required to take that information into account": FD[57]. Those statements of concern, on the applicant's submission, were highly prejudicial, akin to taking into account a charge as opposed to a conviction and, whilst the Authority did not explain the effect of taking into account those statements, it did so "expressly" such that when "examining an open-textured discretion" it may be inferred that the prejudicial matters were taken into account such that the error was material because it deprived the applicant of a realistic possibility of a different outcome.
80 At hearing, the applicant expanded on this submission, with the aid of the reasoning in Adams v Yung [1998] FCA 506; 83 FCR 248 at 298, submitting that by reason of the Authority taking those statements into account, it was taking into account the applicant's conduct "at large" rather than the confined conduct required under the Act.
81 For the following reasons, I reject the applicant's submission that the statements of concern constituted an "irrelevant consideration" or that the Authority misdirected itself or misunderstood its task when making the Final Determination.
82 To make out the "irrelevant consideration" ground of review, the impugned consideration is ordinarily described as needing to be forbidden or prohibited with reference to the canonical principle elucidated by Mason J in Peko-Wallsend at 39-40. However, this statement of principle needs to be understood with a degree of flexibility, which Mason J had recognised later in his Honour's reasoning, at 41 (see Duffy at [52]), about which Basten JA opined expansively in Duffy at [53]:
This analysis was incomplete in that it did not address the weight given to permissible considerations and any possible flexibility with respect to impermissible considerations. The significance of these omissions is that "considerations" have different qualities which are not recognised by a simple classification as permissible, mandatory or prohibited. To identify a lion and a deer as wild animals and place them together in a zoo is unlikely to provide a satisfactory outcome (at least for the deer). Two considerations may each be relevant, but may pull in opposite directions. A particular consideration may be relevant to one aspect of the reasoning process, but not to other aspects. For example, in sentencing an offender a prior criminal record is relevant, but may only be used to diminish a plea for leniency, not to increase an otherwise appropriate sentence for the particular offence. Thus a consideration which is relevant for a specific purpose or in respect of a particular issue only may be impermissibly used for a different purpose or with respect to another issue. Such misuse could constitute an error of law.
83 In Duffy, the Court of Appeal ultimately found that the relevant Tribunal had erred in its conclusion as to Mr Duffy's place of living by determining whether the connections with one town outweighed the connections with the other town, or were so substantial so as to prevent the other town constituting a place of living. Justice Basten stated, at [57], that this finding by the Tribunal "was not the exercise required by the statute. The use to which the factors, while not irrelevant for all purposes, were put by the Tribunal indicates that it misdirected itself as to the precise question it was required to determine".
84 The alleged "prohibition" in the present case is said to arise, by implication, from a consideration of certain parts of the legislative scheme. As to the first basis for such an implication, being by reason of the restrictions imposed by ss 93(9), 106M(3) and 106UAA of the Act, a consideration of the statutory scheme and its history reveals the following, as submitted by the applicant:
15. When Part VAA was introduced into the Act in 1994, a committee was required to make a referral to a State or Territory regulatory authority, providing a statement of its concerns, if it considered that "material before it indicates that action should be taken against the person under review in order to lessen a serious and imminent threat to the life or health of any person" (Act, s 106P(1) (as it then stood)). However, this did not affect the Committee's consideration of the referral (Act, s 106P(2)).
16. The professional services review scheme was reviewed in 1999 and it was recommended by a review committee that the Director, a committee and what was then the Determining Panel all be given a power to make referrals to regulatory bodies. The Health Insurance Amendment (Professional Services Review) Act 1999 (Cth) introduced new provisions expanding on the existing referral powers. It was specified, however, in the amended provisions, that the Director (s 93(9)), a committee (s 106M(3)) and the Determining Authority (s 106UAA) were "to disregard" any opinion each formed for the purposes of making a statement of concerns to be sent to a regulatory body.
17. Following the 1999 amendments, Part VAA of the Act provides for the Director, a committee and the Determining Authority to make a statement of concern to be sent to regulators if the decision-maker forms the opinion that the conduct by a person has caused a significant threat to the life or health of any other person (s 106XA) or that a practitioner has failed to comply with professional standards (s 106XB).
(Footnotes omitted.)
85 The applicant referred in his submissions to Recommendation 32 of the Report of the Review Committee to the Professional Services Review Scheme - March 1999. That report, at pp. 32-33, described why there was an expansion in the circumstances by which, at "any stage of the process", there could be a referral to a State or Territory body as follows:
PSRCs [Committees] have identified various professional issues in relation to clinical competence and performance; aberrant professional behaviour or beliefs; lack of meaningful continuing medical education; physical or mental impairment; and substance abuse. Organisational issues that can affect patient safety, such as equipment and staffing deficiencies, are also sometimes evident.
These issues are relevant for professional practice but, in light of the Federal Court's decision in Adams v Yung, are not necessarily relevant to the issue of inappropriate practice relating to the provision of services that attract a Medicare benefit.
Currently PSRCs must refer concerns about possible serious threats to the life or health of persons to State/Territory registration bodies. Matters relating to a practitioner's compliance with professional standards (for example, compliance with conditions for vocational registration) can only be referred by the DO [Determining Officer] to other bodies such as a General Practice Recognition Eligibility Committee and a Specialist Recognition Advisory Committee.
The Review recommends that with the creation of a consolidated PSR Agency, the legislation be amended so that the DPSR [Director], PSRCs and the DP [Determining Panel] can, at any stage of the process, refer concerns relating to significant threats to the life or health of persons to State/Territory registration bodies, and refer matters relating to the practitioner's compliance with professional standards to relevant bodies.
86 In his further written submissions, the applicant contended that:
The legislature introduced the injunction to each Part VAA decision-maker that he, she or it "must disregard any opinion formed" in making a statement of concerns in the 1999 Amending Act (in the new ss 93(9), 106M(3) and 106UAA). It may be inferred that it did so in light of Adams v Yung so as to help ensure that the Part VAA decision-makers did not take into account irrelevant material, or deny a practitioner natural justice.
87 The applicant correctly identified the confines of what constitutes "inappropriate practice" for the purposes of the Act, which by contrast does not include "professional issues" of the kind identified in the Report: They are the remit of the appropriate State or Territory body and as recognised under the National Law.
88 The chronology of events revealed above that there is likely to be an interplay between the parallel regimes in operation (with different powers and responsibilities) at a State or Territory and a Federal level. The Act contemplates and facilitates the same. There is a delineation between the kinds of professional matters that are dealt with under this Act and under the State and Territory regimes as is clear from the legislative history referred to above, the extrinsic material and the terms of the Act. The Act makes clear, as submitted by the applicant, that it is concerned with "inappropriate practice", defined in s 82, which arises from the practitioner's conduct "in connection with rendering or initiating services" which are defined in s 81 of the Act, as follows:
service means:
(a) a service that has been rendered if, at the time it was rendered, medicare benefit or dental benefit was payable in respect of the service; or
(ab) a service that has been initiated (whether or not it has been or will be rendered) if, at the time it was initiated, medicare benefit would have been payable in respect of the service had it been rendered at that time; or
(b) a service rendered by way of a prescribing or dispensing of a pharmaceutical benefit by a medical practitioner, a dental practitioner, an optometrist, a midwife or a nurse practitioner; or
(c) a service that:
(i) has been rendered in connection with the provision of treatment under a relevant DVA law; and
(ii) is of a kind that, if the service had not been rendered in connection with the provision of treatment under the relevant DVA law, medicare benefit or dental benefit would have been payable in respect of the service.
Note 1: See Part II, and in particular section 10, for when a medicare benefit is payable.
Note 2: See the Dental Benefits Act 2008 for when a dental benefit is payable.
(Emphasis in original.)
89 Necessarily, by these definitions, together with its stated object under s 79A (extracted above at [9]) the scope of this Act is to deal with "inappropriate practice" and is confined.
90 However, the Act contemplates and makes specific provision for the referral of "professional issues" to other regulatory bodies under Division 5A of Part VAA (the relevant provisions are extracted at [76] above). In order to facilitate the same, the Authority or Committee is required, pursuant to s 106XA, "in the course of the performance of functions or the exercise of powers under this Part", to give the Director a written statement of its concerns which leads to a referral, if it forms the view that any of the conduct by the person under review caused, or was likely to cause, a significant threat to the life or health of any other person. Similarly, the Authority or Committee is required to give to the Director a written statement of its concerns regarding its opinion that the practitioner has failed to comply with professional standards: s 106XB. The Director is then required, by reason of "receiving" statements in either circumstance, to send the statement and material to a State or Territory body that is responsible for the administration of health services or the protection of public health and safety, as well as any other "appropriate person or body: ss 106XA(2), 106XB(2).
91 Similarly if the Director forms his or her own opinion of a similar kind, he or she must: (a) prepare a written statement of his or her concerns; and (b) attach to the statement the material or copies of the material on which his or her opinion is based; and (c) send the statement and material to the State or Territory body that is responsible for the administration of health services or the protection of public health and safety, as well as any other "appropriate person or body": ss 106XA(3), 106XB(2).
92 If the Authority, in the course of considering a report by the Committee, forms its own opinion that any of the conduct falls within the criteria under s 106UAA(1)(a) (significant threat to life or health) or under s 106UAA(1)(b) (failure to comply with professional standards), it must disregard those matters when making its draft or final determination (extracted at [20] above).
93 Such statements of concerns (precipitating a prompt for the Director) and the Director's referrals can be made at any time. The fact of these referrals then may precipitate a course of events, under the National Law, as occurred in the case of the applicant, leading to disciplinary proceedings and measures of the kind that occurred in this case, such as a hearing related to an inquiry or an appeal under s 150 of the National Law (see s 11 of Sch 5D of the National Law), conditional registration and supervision.
94 What is clear here is that the Authority did not prepare any such statement of concerns itself (as required under s 106UAA if those concerns had arisen): The Authority states that it "has not" done so explicitly at FD[57]. Given that it is compelled by the mandatory statutory command of ss 106XA(1) and 106XB(1) to provide a "written statement of its concerns" if it held those views, there was no submission made to the effect that the Authority held those views when making its draft or final determination.
95 What the Authority was aware of, which it identified at FD[57], was: (a) the Committee having previously held those views and disregarding them, as it identified; and (b) that the Director had notified AHPRA of her concerns as required under s 106XA(3): AHPRA being an "appropriate person or body" for the purpose of s 106XA(4): reg 10(2)(c) of the Health Insurance (Professional Services Review Scheme) Regulations 2019 (Cth).
96 Given this distinction, there was no suggestion that the Authority had its own present concerns (for which it was excluded from taking into account when making its determination). What, then, must be made of the fact that it was aware of the Committee and Director having those concerns in the past? There is a clear distinction between the two. Whilst, on one view, the Authority being aware of these past concerns might be prejudicial to an applicant, the fact that the Authority does not hold that view itself now is particularly relevant.
97 Importantly, as submitted by the Commonwealth, it must be remembered that the Authority was necessarily, by statutory command, aware of the fact of both the Director's and the Committee's statements of concerns, by operation of ss 106L(3) and 106M, regardless of being provided with them by the Director under a s 106S Notice.
98 Sections 106L(3) and (5) provides:
106L Final report of Committee
…
(3) Unless subsection (5) applies, the Committee must:
(a) give copies of the final report to the person under review and the Director; and
(b) give the final report to the Determining Authority not earlier than 1 month after the day on which a copy of the report is given to the person under review.
…
(5) If the final report does not contain a finding by all, or a majority, of the Committee members that the person under review engaged in inappropriate practice in the provision of some or all of the referred services:
(a) the Committee must give copies of the report to:
(i) the person under review; and
(ii) the Director; and
(iii) the Chief Executive Medicare; and
(b) the copies must include, or be accompanied by, a written notice stating that:
(i) the report does not contain a finding by all, or a majority, of the Committee members that the person under review engaged in inappropriate practice; and
(ii) no further action will be taken as a result of the report.
99 Accordingly, by operation of s 106L(3) the Committee was required to provide a copy of its Final Report to the Authority and by operation of s 106M(2)(b), the Committee was required in its Final Report to state whether it had formed the relevant opinion precipitating a statement of concerns and set out the terms of the statement of concerns. It is uncontroversial that in this case, consistent with the requirements of the Act, the Committee included both its written statement to the Director (as required under ss 106XA and 106XB) and also its statement of concerns (at Appendix 10 of the Final Report).
100 The Committee's Final Report includes reference to the Director's referral to the Committee on 31 October 2019 where the Committee was asked to investigate whether the applicant had engaged in inappropriate practice. The Director's referral included, as required under s 93(8), the statement of concerns that the Director had formed regarding significant threat to life or health (s 93(8)(a)) and failure to comply with professional standards (s 93(8)(b)). Whilst the Committee did not attach the Director's referral (and the Director's statement of concerns) to its report, the Committee specifically referred, at [85] in its Final Report, to the fact of the Director having included in her referral to AHPRA, her statement of concerns under ss 106XA and 106XB, having been raised by the applicant in his submission to the Committee. Paragraph [85] of the Final Report was as follows:
The written submissions concluded by suggesting that the release of the Committee's report to the Determining Authority would be resisted because "PSR is estopped from imposing a further penalty on this person under review". This was said to be based on the fact of the Director's referral of a statement of concerns concerning Dr Li to the Australian Health Practitioner's Regulation Agency (AHPRA) under section 106XA and 106XB of the Act dated 3 October 2019. This was also provided to the Committee as Appendix 1 to the Director's report to the Committee attached to the Referral." The submissions advise that as a consequence of this referral under sections 106XA and 106XB, action was taken as a result of the "AHPRA enquiry [sic]" to impose conditions on Dr Li's registration based on a finding that his performance was unsatisfactory.
(Footnotes omitted).
101 Sections 106L(3) and 106M(2)(b) reveal that it was ordinary and envisaged, that each of the relevant actors - the Director, Committee and the Authority - be appraised of the fact of the other holding those concerns.
102 Furthermore, the legislation's permissive provisions by which each actor has knowledge of the fact of the Committee and Director previously holding these views is consistent with the legislation's protective objects (s 79A), its referral powers as between the Director, the Committee and the Authority (ss 80(4), 80(10), 93, 106L), and then the referral powers from the Director to the State and Territory bodies (ss 106XA, 106XB) and what the Authority is required to consider for the purpose of making directions under s 106U. The scheme facilitates the funnelling of information such that the Authority understands what precipitated the other professional disciplinary processes (outside its remit).
103 Consistent with the same, they were the very matters the applicant wanted the Authority to be appraised of. On one view, the fact that the Authority was aware of AHPRA being notified, is something that may assist the applicant rather than be prejudicial to him. It is consistent with the applicant's submission that he has been the subject of review and protective measures by other health regulatory bodies such that there is not the need for the Authority to impose its own regime. This was clear from the content of the applicant's own submissions both before the Committee (see [84]-[87] of the Committee's Final Report) and those to the Authority. Paragraph [87] of the Committee's Final Report was as follows:
Action resulting from a review by another regulatory body under a different statutory regime is no impediment to investigation and action being taken by the Committee under the Act even where the genesis of the AHPRA review was a referral by the Director in respect of similar broad subject matter. The legislation under which the AHPRA review was conducted involves different protective objectives, methods, powers and focus to those under the Act. It is difficult to see how these circumstances might be suggested to operate as an estoppel or bar based on the legal concept of double jeopardy, which commonly understood as "prosecution twice for the same offence," for the reasons outlined and where the action by Medicare to refer Dr Li to PSR occurred before the Director's referral to AHPRA.
(Footnotes omitted).
104 Notably, the applicant provided the Director's statement of concerns as part of the documents annexed to his first submissions. It appears entirely understandable, in the context of his submission, that it was the first Annexure to his submission because it is the first chronological step that precipitated the State-based professional services review, for which he claimed he should not be "sanctioned twice" (detailed at [122] of his 1 March 2022 submissions and where he refers to it at [124]-[125]):
124. The complaint by the Director of the PSR dated 3 October 2019 appears as Annexure A to these submissions.
125. Dr Li unaware of the action taken by the Director of the PSR in lodging the complaint to AHPRA provided submissions as a consequence of the interview with the Director conducted on 21 August 2019. Dr Li's response dated 23 October 2019 appears as Annexure B.
(Emphasis in original.)
105 The applicant did not say in his first submission to the Authority, contrary to his submission later and in this Court, that the Director's and the Committee's statement of concerns should not have been before the Authority and was only referred to in his submission to the Authority because of the fact that the Authority's invitation for submissions referred to the documents provided under s 106S which included the "statement of concerns". As referred to above at [103], the applicant had already raised the fact of the concurrent processes including the Director's referral to the Committee (and the existence of the Director's statement of concerns) in his submissions to the Committee (which was before the Authority).
106 It is clear from the content of the applicant's submissions that the Authority's consideration of the applicant's parallel disciplinary procedural history appear to be accepted by the applicant, as being relevant considerations for the purposes of the Authority's determination. By extension, it appears ordinary, and consistent with the legislative scheme, that the Authority would be appraised of the steps taken by the Director and Committee which led to those processes. They complete the picture.
107 To the extent that the applicant submitted that by taking into account the statements of concerns the Authority was in effect considering the applicant's conduct "at large" beyond that which fell within the Act's confines of "inappropriate practice" (as described at [88] above) with reference to the reasoning in Adams v Yung, I do not accept that submission. The circumstances in Adams v Yung were very different. In that case, the error of law comprised the Committee's failure to afford procedural fairness to Dr Yung by taking into account issues with Dr Yung's practice which were not raised in the referral to the Committee (see at 291) and accordingly Dr Yung was not given an opportunity to address those other issues. Justices Burchett and Hill found that the Committee had "failed to confine itself to the very reference which was before it" and by not undertaking proper sampling of Dr Yung's services, it "also failed to consider the issue in that reference which related to conduct in respect of the referred services by only considering the one day which it did": at 298. By contrast, in the present case, the applicant himself provided the Authority with the Director's statement of concerns in his 1 March 2022 submissions and then addressed, in his 16 May 2022 submissions, his concerns with the provision of the statements of concerns to the Authority.
108 Furthermore, it appears clear from the Authority's reasoning and the manner in which the statements were provided (as contained in the context of the Director's letter containing the documents for the purpose of s 106S) that the Authority was considering the fact of the statements of concern rather than taking into account possible conduct "at large" beyond its remit.
109 Similarly, the applicant's contention is not persuasive when one considers that there may be, as there was here, an overlap between the "inappropriate practice" as found under this Act and the "conduct" which the Council had dealt with. Indeed, the applicant submitted, at [129] of his 1 March 2022 submissions, that those medical professionals who conducted the hearing on 4 February 2020, "could be classed as 'a general body of general practitioners' [for] the purposes of the health insurance act": No doubt a reference to the applicable test for "inappropriate practice" under s 82(1) of the Act. The applicant went on to then refer, in detail, to the conditions which were imposed on him as part of the Council's process, as extracted:
The Medical Professionals at the hearing could be classed as "a general body of general practitioners" [sic] the purposes of the health insurance act. Conditions were imposed on Dr Li's registration as from 10 February 2020 and continuing which included:
a. Level C supervision of practice;
i. Reports to the Medical Council on a monthly basis;
ii. The supervisor must be a GP having obtained a full fellowship of the skin Cancer College of Australasia, Master of medicine (Skin Cancer) or a specialist dermatologist;
iii. The supervisor must be independent and not have any business or financial relationship with Dr Li;
b. At each supervision meeting the practitioner is to review and discuss Dr Li's practice with focus on:
i. Communication with patients - clinical assessment and management;
ii. Medical records feedback in relation to any second opinion or procedures performed during the month;
iii. It is highlighted in the decision which imposes the conditions;
iv. Authorise the medical Council of New South Wales to provide proposed and approved supervisors with a copy of the decision including any conditions.
c. With any proposed skin graft or flap procedure the practitioner is to obtain a second opinion from the Medical Council Supervisor which supports the procedure. (This may be either written or if oral to be filed in the patient's record) Dr Li must within seven days from the end of each calendar month provide the Medical Council of New South Wales with a record of all patients for which Dr Li obtained a second opinion. The log to include:
1. Name date of birth of the patient
2. Name and nature of the surgical procedures proposed or performed
3. The full name and signature of the Council approve supervisor who provided the second opinion
4. A copy of the second opinion
5. Dr Li to provide the second opinion log to the supervisor to be reviewed and discussed before submitting the log to the medical Council
6. Authorise Medical Council of New South Wales to contact the supervisor to verify the second opinion
d. Within seven days from the end of each month Dr Li is to provide the medical Council with a log of all surgical procedures undertaken in the previous month which includes the conditions outlined above
110 The applicant's inclusion of this information was to support his submission as to why there was no need for the Authority to impose its own form of directions of those contained in s 106U.
111 The applicant, again, impressed upon the Authority that there was a significant overlap between the two regimes when he described the consequences that the "[State] PSR investigations" had on "his practice methods and processes with respect to MBS item billing" (at [141]-[149] of 1 March 2022 submissions).
112 I do not accept the applicant's submission that he only referred to the fact of what was occurring at the other regulatory levels because of the fact that the Authority was aware of it. The central gravamen of his submission was that there was no need for the Authority to enter the fray because of what was happening at a State level, including his ongoing supervision and further training. Even if this were not the case, it makes no difference to the Court's consideration of how the legislative scheme worked.
113 The issue is what was the "purpose" or "use" of the statement of concerns. It appears, in the context of the legislative scheme, and as elucidated in the Authority's reasons of its Final Determination, that their provision was for the purpose of and their use to complete the regulatory history. It may be that if it were established that it were provided for another "purpose" or "use" it may be impermissible, if it were contrary to other specific statutory commands under the Act. However, this was not the case here.
114 There is nothing in the terms, nor by implication, of those provisions, which leads to a reading down (as required on the applicant's submission) of the terms of s 106S.
115 Section 106S provides:
106S Director may give Determining Authority information
(1) The Director may give the Determining Authority any information that the Director considers is relevant to the Authority making its draft determination or final determination in accordance with section 106U.
(2) The Director may give information to the Determining Authority under subsection (1) on one occasion only.
(2A) The Director must not give information to the Determining Authority under subsection (1) after the Authority has made its draft determination in accordance with section 106U.
(3) If the Director gives the Determining Authority information under subsection (1) at a particular time, the Director must also give the information to the person under review at that time.
(4) The Determining Authority must consider the information in making its draft determination or final determination in accordance with section 106U.
116 Section 106S of the Act is cast in broad terms and contains no fetter of the kind identified in ss 93(9), 106M(3) and 106UAA. On a consideration of its terms, together with taking into account all those matters above, there is nothing to suggest the form of implied limitation nor prohibition for which the applicant contends. This is particularly so, given the legislation, by operation of ss 106L(3) and 106M ensured the Authority was aware of the Director's and Committee's statements of concern regardless of them being provided by the Director under a s 106S Notice.
117 Whilst unnecessary to aid any construction of the section, the drafting history of s 106S confirms why there should be no such implied limitation or prohibition in the circumstances. The Commonwealth noted that s 106S was repealed and substituted in 2002 and then amended in 2012. As a consequence of the 2002 amendment, the provision was as follows:
106S Director may give Determining Authority information
(1) The Director may give the Determining Authority any information that the Director considers is relevant to the Authority making its draft determination or final determination in accordance with section 106U.
(2) The information must be given no later than the day on which the Committee's final report is given to the Determining Authority under subsection 106L(3).
(3) If the Director gives the Determining Authority information under subsection (1) at a particular time, the Director must also give the information to the person under review at that time.
(4) The Determining Authority must consider the information in making its draft determination or final determination in accordance with section 106U.
118 The Explanatory Memorandum to the Health Insurance Amendment (Professional Services Review and Other Matters) Bill 2002 (Cth) noted, that "[e]xamples of information which might be relevant are the nature and circumstances of any previous conduct of the person that has resulted in a criminal conviction or disciplinary action (by a registering or licensing body), responses to any counselling, ratification of a section 92 agreement, a final determination that has taken effect, and any particular needs of the locality in which the person under review practices" (emphasis added).
119 In 2012, s 106S(2) was repealed and replaced by a new s 106S(2) and s 106S(2A) which extended the time by which the Director could pass on information and required that the Director provide the information on "one occasion" only. The Explanatory Memorandum to the Health Insurance Amendment (Professional Services Review) Bill 2012 (Cth) stated that the amendments were "necessary" for the following reasons.
This amendment is necessary because there is no other provision under which the Director may pass information to the Determining Authority even though instances have arisen when the Director has acquired case-relevant information after the date upon which the Determining Authority had received the Professional Services Review Committee's final report. In such instances, the Director was unable to pass the information to the Determining Authority.
The information the Director may provide to the Determining Authority may be to the advantage of the person under review, for example, if the practitioner has taken demonstrable steps to address the conduct under review in relation to the provision of services. However, the information provided may not be to the person's advantage, for example, if it demonstrates that the person has persisted with conduct relevant to the review.
New subsections 106S(2) and 106S(2A) prevent the Director from giving information more than once and from giving information after the Authority has made its draft determination. These limitations ensure that the person under review has adequate opportunities to make submissions in relation to the information given, which affords natural justice to the person under review (refer to new section 106SA at item 36).
120 Again, it is clear from the 2012 Explanatory Memorandum that there will necessarily be information provided to the Authority regarding the practitioner's conduct, during the review processes, including "demonstrable steps to address the conduct" which may be to the "advantage" of the person under review as well against them if they have "persisted with conduct relevant to the review".
121 The fact that the Director can only provide the Authority with relevant information once is important. I accept the submission of the Commonwealth that the Director provided information about the applicant's past involvement in the PSR process, which enlivened the scope for directions under s 106U(3)(a). In that context, it was relevant for the Authority to be aware of the broader regulatory activity with respect to the applicant. The Director, had provided under s 106S, an MBS item payment summary and the 2009 s 92 agreement (the full list extracted at [49] above). Notably, the fact of the statement of concerns having been made by both the Director and the Committee was already before the Authority, having been cited in the Committee's Final Report (as it was required to under s 106M(2)(b) and s 106L(3)(b), as considered in more detail at [97] -[101] above).
122 Accordingly for the reasons identified above, I do not accept that the Authority engaged in error by taking into account the statements of concern. I do not accept that by doing so, it took into account an irrelevant consideration, misdirected itself or misunderstood its task when making the impugned directions.
123 Even if I am wrong, I also accept the Commonwealth's submission that any such error was not material and that the applicant is required to prove materiality in this case for the following reasons.
124 Contrary to the submission of the applicant, grounds of review under s 5(1)(e) and (f) of the ADJR Act are both subject to an implied statutory test of materiality: Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills & Employment (No 2) [2020] FCA 1749 at [38] (per O'Bryan J) citing Peko-Wallsend at 40 and Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 353-4. To the extent that the applicant sought to rely on recent Full Court consideration of whether the test of materiality applied to these provisions, in Darnell v Stonehealth Pty Ltd [2022] FCAFC 76, the Full Court referred to the jurisprudential lack of "resolution" as it arises with respect to s 5(1)(b) not ss 5(1)(e), (f) or (j) and ultimately did not resolve the issue: at [147]-[148].
125 The applicant conceded that the Authority did not explain whether the taking into account of the statements of concern had an effect upon the directions it made, only stating that it did take them into account (at FD[57]). However, the applicant submits that it can be inferred that as the Authority exercised an "open-textured discretion" in relation to the repayment and disqualification directions, "that prejudicial matters which are expressly taken into account affected or could have affected the discretion". I do not accept this submission.
126 The applicant relied on Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [32], where the plurality stated that the Court had to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with a particular condition. Accordingly, the applicant submitted that the Authority failed to comply with the statutory condition that it not take into account or have regard to a statement of concern.
127 As the Commonwealth submits, the Authority does not indicate what weight, if any, it placed on the statements of concern but rather focussed its reasoning upon the inappropriate practice found by the Committee. I accept this submission. The Final Determination is not to be read with an eye finely attuned to error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272) and its reasons must be read as a whole. Paragraph [57] of the Final Determination needs to be read in its context, being part of the Authority's discussion of and response to the applicant's submissions, and in particular the applicant's submission referred to, at FD[56], that the "Authority may have inadvertently taken into account the Director's and the Committee's statements of concern about significant threats to the life or health of [the applicant's] patients and a failure to comply with professional standards, under sections 106XA and 106XB of the Act".
128 The Authority's reasons as to why it made the directions it did are extensive and include, inter alia, detailed consideration of: the Committee's finding of "inappropriate practice" (at FD[29]-[40]), the key objectives of the PSR scheme as enshrined in s 79A (at FD[41]-[42]), the applicant's own submissions as to the "separate performance management processes imposed by the Council, in response to a referral by the Director" (at FD[43]-[48]), how the Authority, whilst bound by the Committee's findings, must determine for itself what the appropriate outcome is (at FD[49]-[50]), the nature of the "sanctions" not being "punitive" and addressing the applicant's specific submissions as to its directions (at FD[51]-[55]), the potential disadvantage to be suffered by the applicant's patients if the proposed directions were made (at FD[58]) and thereafter why it was appropriate to make the directions it did (at FD[60]-[79]).
129 In the circumstances, I do not accept the applicant's contention that if the alleged error had not occurred, the absence of the knowledge of the Director's and Committee's statements of concerns could have realistically affected the result.