1. The Tribunal has no jurisdiction to carry out judicial review of administrative action and cannot therefore determine the validity of the warrants.
2. Even if the Tribunal could determine the validity of the warrants and found them invalid, the Tribunal has no discretion to exclude the material obtained consequent to those searches, when regard is had to the legislation, common law and to principles of natural justice and fairness.

Administrative and disciplinary - Health practitioner - Interlocutory application - Collateral review sought by respondent

Administrative law - Jurisdiction of Tribunal - Collateral review - Whether within Tribunal jurisdiction to determine validity of search warrants issued by Magistrate - Tribunal not conferred jurisdiction to collaterally review decision of a Magistrate to issue the warrants

Evidence and procedure - If search warrants invalid and searches unlawful whether Tribunal has discretion to exclude material unlawfully obtained - Regard had to relevant Acts - Receipt of evidence decided with respect to principles of natural justice and fairness - Conclusion based on logically probative material - No discretion to exclude in this case

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 7, 11, 12, 41, 193, 196, 238, 239, 244

Magistrates Act 1983 (SA)

Charter of Rights and Responsibilities Act 2006 (Vic)

Residential Tenancies Act 1997 (Vic)

Residential Tenancies Act 1995 (SA)

South Australian Civil and Administrative Tribunal Act 2013 ss 8, 33, 39, 40, 43, 69

Forensic Procedures Act 2000 (Tas)

Medical Practitioners Registration Act 1996 (Tas)

Duke Group Ltd (in liq) v Pilmer [1994] 63 SASR 364

Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69

Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Attorney-General (SA) v Raschke (2019) 133 SASR 3215; [2019] SASCFC 83

Pawelzik v South Australian Housing Trust [2019] SACAT 44

Director of Public Prosecutions (SA) v King [2019] SASC 42

Sullivan v Civil Aviation Authority [2014] FCAC 93; 226 FCR 555

Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; 36 FLR 482

Minister for Immigration and Ethnic Affairs v Pochi [1981] HCA 58; (1981) 149 CLR 139

Martin v Medical Complaints Tribunal [2006] TASSC 73; 15 Tas R 413

Mr T P Duggan QC, for the Medical Board of Australia

Made under the Health Practitioner Regulation National Law (South Australia) Act 2010

1. This ruling is made within proceedings concerning an allegation of professional misconduct made by the Medical Board of Australia against the Dr Bhagwant Singh (referred to in this decision as the respondent, acknowledging that he is the applicant in respect of the interlocutory application) who is a registered health practitioner under the Health Practitioner Regulation National Law (South Australia) Act 2010 ("the National Law").
2. The ruling responds to an interlocutory application filed by the respondent. The application relates to searches conducted on 10 December 2015 pursuant to a search warrant issued by a Magistrate, which resulted in documents being seized. Sometime later, there followed an interview with the respondent in which the respondent answered questions regarding, amongst other things, the content of the seized documents.
3. The respondent has applied to the Tribunal seeking the following orders:

1. The searches conducted on 10 December 2015 were unlawful; 2. The discretion be exercised to exclude all evidence obtained as a consequence of the execution of the warrants on 10 December 2015;

1. Those parts of the interview on 11 October 2017 which are in response to material unlawfully obtained by the execution of the warrants be excluded;

1. The proceedings be dismissed or struck out as an abuse of process; 2. In the alternative to [d] above, Dr Singh have leave to withdraw his response dated 4 July 2019 and permission to file a Second Response.
2. The application raises important questions regarding the jurisdiction of the Tribunal. In determining the application I am required to consider whether the Tribunal has jurisdiction to determine the lawfulness of the search warrants issued under the National Law on 9 December 2015 and subsequently executed on 10 December 2015. I heard argument on this issue on 8 November 2019. For the reasons I now give, I conclude that the Tribunal has no such jurisdiction.

1. The primary proceedings are brought by way of a referral to the Tribunal by the Medical Board of Australia ("the Board") under s 193 of the National Law. Section 193 requires a Board, it having formed a reasonable belief that a registered health practitioner has behaved in a way that constitutes professional misconduct, to refer "the matter" to the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred, and give notice of the referral to the practitioner concerned.
2. In these proceedings, it was not disputed that Dr Singh is a registered health practitioner, the Medical Board of Australia is a National Board or that the South Australian Civil and Administrative Tribunal ("the Tribunal") is the responsible tribunal.[1]
3. The referral initiates proceedings in the Tribunal regarding the matter. The Tribunal may, after a hearing, then make a decision that the practitioner has no case to answer or make a finding that the practitioner's conduct constitutes professional misconduct or any other of a number of specified findings: the National Law, s 196. The Tribunal then may decide to reprimand the practitioner, impose conditions on his or her registration, impose a fine, or suspend his or her registration.

1. In the course of forming its belief about a practitioner's conduct, the Board directs inspectors appointed under the National Law to conduct investigations to enforce compliance with the National Law.[2]
2. For the purpose of this preliminary argument, it was submitted by the respondent in his written submissions, and I take as correct, that:

1. On 9 December 2015, David Gardner, who was an inspector under the National Law applied for two search warrants for a medical centre and associated vehicles and a pharmacy. 2. A Magistrate appointed under the Magistrates Act 1983 (SA) issued the warrants.

1. The warrants were executed on 10 December 2015. Searches were conducted. Documents were seized.
2. The issuing of the warrants was governed by clause 6 of Schedule 6 of Schedule 2 of the National Law, which provides:
   1. The magistrate may issue the warrant only if the magistrate is satisfied there are reasonable grounds for suspecting there is a particular thing or activity that may provide evidence of any offence against this Law at the place.
   2. The warrant must state-
      • (a) That a stated inspector may, with necessary and reasonable help and force -
        • (i) Enter the place and any other place necessary for entry; and
        • (ii) Exercise the inspector's powers under this part; and
      • (b) The matter for which the warrant is sought; and
      • (c) The evidence that may be seized under the warrant; and
      • (d) The hours of the day or night when the place may be entered; and
      • (e) The date, within 14 days after the warrant's issue, the warrant ends.
3. Both warrants stated that the Magistrate was:

...satisfied that there are grounds for suspecting that there is evidence that an offence may have been committed under the Act by Dr Bhagwant Singh and Mr Giuseppe Barbaro, at the place.

1. If the Tribunal has jurisdiction, the respondent would seek to establish that the warrants were invalid because they failed to disclose that the Magistrate was satisfied that the grounds for suspecting the offending was reasonable as required by clause 6. Further, the respondent seeks to invalidate the warrants by virtue of their failure to specify the "particular thing or activity" that may provide evidence of an offence.
2. Critical to the purpose of the respondent's argument is the submission that, upon a finding of unlawfulness of the searches, certain important parts of the interview of the respondent should be excluded in the exercise of the Tribunal's discretion. The respondent also contends that the proceedings should be struck out as an abuse of process. In the alternative, the respondent seeks the Tribunal's permission to withdraw his Response of 4 July 2019 and file a Second Response.

Does the Tribunal have jurisdiction to undertake the exercise required for the orders and findings the respondent seeks?

1. The Board argues that what is sought by the respondent amounts to a collateral review of decisions that is beyond the jurisdiction of the Tribunal being exercised in the determination of the complaint.
2. Collateral review was considered by the High Court in Ousley v The Queen[3] and characterised as follows:

A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision...[It occurs] in proceedings where the validity of the administrative act is merely an incident in determining other issues.[4]

1. However, this application does not merely require consideration of collateral review but of the power of a tribunal that is not a court to undertake such an enquiry and make such orders as may follow from it.
2. A tribunal's ability to perform collateral review was considered in Director of Housing v Sudi.[5] In that case, a public housing tenant sought to challenge his eviction. In so doing, he asserted that the public housing authority had not complied with another Victorian law, the Charter of Rights and Responsibilities Act 2006 ("the Charter"), when it decided to apply to the Tribunal for a possession order. The Tribunal determined the authority's compliance with the Charter. The Full Court of the Supreme Court allowed an appeal against the Tribunal's decision on the basis that the Tribunal did not have jurisdiction to collaterally review the authority's compliance with the Charter. Each of the members of the Court found that there was no power in the Tribunal to collaterally review the Director's decision to bring the application to terminate the tenancy.
3. Warren CJ examined the jurisdiction of the Tribunal to make a possession order. Her Honour observed that it was a function performed in the original jurisdiction[6]. Her Honour further observed that the Tribunal has no judicial review jurisdiction but that this is not necessarily a barrier to a court's enquiry into the validity of an administrative decision[7]:

An inferior court with no judicial review jurisdiction may still be able to entertain a collateral challenge to the validity of an administrative decision. For example, in Ousley v The Queen the High Court considered whether an accused in a criminal trial in the County Court can mount a collateral attack on the validity of a listening device warrant, in order to challenge the admissibility of recordings made through the listening device. Having found that the issuance of the warrant was an administrative act, the High Court held that the County Court trial judge was able to examine the validity of the warrant. The trial judge was able to do so despite the fact that the County Court was an inferior court with no judicial review jurisdiction.

(citations omitted)

However, the Chief Justice stated that a tribunal's powers are not necessarily those of a court. A tribunal's ability to engage in collateral challenge was the subject of the High Court's decision in Minister for Immigration and Multicultural Affairs and Bhardwaj[8]. In considering Bhardwaj, the Chief Justice noted that, while the High Court found that a particular tribunal was able to disregard its own decision that was vitiated by jurisdictional error, that would not mean that tribunals have collateral review power: Her Honour said[9]:

But Bhardwaj is not an authority for the broad proposition that administrative tribunals can, in general, conduct inquiries into the validity of purported decision of any administrative body if the decision happens to be material to the dispute before the tribunal. Rather, the extent of an administrative tribunal's ability, if any, to conduct such enquiries remains a question of construction of the relevant statutory provisions. The question is whether the provisions evince an intention that the tribunal should attach 'some relevant legal consequence' to a purported decision of the kind in question, even if the decision is vitiated by jurisdictional error.

(citations omitted)

1. Her Honour proceeded to find, upon undertaking that analysis, that the scheme created by the Residential Tenancies Act 1997 (Vic), the VCAT Act and the Charter excluded the tribunal's ability to collaterally review an administrative decision. In so doing, her Honour found[10]:

1. The purpose of the VCAT Act to create a speedy, inexpensive resolution to disputes told against the implication of a power of collateral review; 2. The detour into administrative law within a tenancy dispute is at odds with VCAT's lack of a general civil jurisdiction and its specific jurisdiction for particular types of disputes;

1. The risk of fragmentation of the proceeding to enable collateral points to be determined in other fora is a necessary consequence of a specialist forum of limited jurisdiction.
2. The Chief Justice concluded that the VCAT should treat relevant purported administrative decisions as being valid unless and until they are set aside by a court of competent jurisdiction[11]. However, her Honour also said that[12]:

Different considerations may apply in respect of a relevant administrative decision that is invalid on its face. However, this issue does not need to be considered in this case.

1. In Sudi, Weinberg J also concluded that VCAT lacked the power to collaterally review an administrative decision for failure to comply with the Charter. His Honour said[13]:

First, it might be thought unlikely that Parliament would have vested in VCAT, which is not a court, far-reaching powers of collateral review. Secondly, the very nature of VCAT's limited statutory functions suggests that it does not have any such far-reaching powers, and that they are not conferred by implication. Thirdly, common law limitations upon collateral review, which apply with equal force to both courts and tribunals, suggest that the question of Charter compliance is a matter for judicial review, and nothing less.

1. Weinberg J's observations as to the reasons that caution ought to be adopted in the implication of a right of collateral review, are telling in this case. His Honour observed that "rules about standing, time limits, and the discretion vested in reviewing courts in relation to the granting of remedies, may fall by the wayside"[14]. In this matter, the Mr Duggan QC on behalf of the Board submitted that the respondent's failure to pursue a challenge to the warrants at the time they were executed in 2015, but to seek to challenge them as a preliminary point in these proceedings some four years later, should not be permitted.
2. SACAT does not have jurisdiction to carry out judicial review of administrative action. SACAT is not a court and although it exercises judicial power from time to time in the exercise of some of its jurisdiction[15], it has no statutory function of judicial review. Similarly, although it performs review jurisdiction, those are circumscribed by its enabling Act. In this case, the Tribunal is exercising original jurisdiction in the performance of its functions under s 196 of the National Law.
3. The Tribunal recently determined that it had no power of collateral review in Pawelzik v South Australian Housing Trust[16]. In that matter the Tribunal considered whether, in the exercise of original jurisdiction in determining an application for vacant possession under the Residential Tenancies Act 1995 (SA), it was open to the Tribunal to determine the lawfulness of a decision by the SAHT to apportion liability for water usage between tenants of a group of units supplied by a shared water meter. The Tribunal found that it had no such power. But that is not determinative of the matter in this case. It will always be necessary to examine the scheme created by the South Australian Civil and Administrative Tribunal Act 2013 ("the SACAT Act") and the Act conferring the jurisdiction on the Tribunal, in this case the National Law, to determine the legislature's intent with respect to collateral review. Further, it is necessary to consider the particular administrative action sought to be reviewed to determine whether that particular action is within the scope of any collateral review power that the Tribunal might have under a particular scheme.
4. In relation to the Tribunal's ability to review the administrative action of a Magistrate in issuing warrants, the indication from the legislature is that the Tribunal is not conferred the power of review over the Magistrate's actions. Firstly, the legislature has placed the administrative function of issuing warrants in the Magistracy. In placing the function in the Magistracy, it signalled an intention that the function be performed by a judicial officer exercising administrative functions. There is little to account for the function being vested in a judicial officer, albeit exercising an administrative function, if that officer's action is reviewable by the Tribunal, constituted as it may be by a non-judicial officer. It might be expected that such a course would be expressly provided for if it were the legislature's intention.
5. When it is borne in mind that the function of the Tribunal entails an exercise of administrative, and not judicial power, it becomes clearer that the proposal that the Tribunal's role extends to a collateral review of a judicial officer's exercise of administrative power in the granting of a warrant is incompatible. The scheme entails decision-making being vested in various executive bodies (eg AHPRA and the Boards) and the Tribunal, and in Magistrates. The legislature could have placed the warrant-issuing power in the Tribunal. It did not. The fact that it chose the Court is an indicator that the Tribunal should not stray into that domain.
6. Secondly, the exercise of the function is amenable to judicial review, wherever reposed. There is no need to read into the Tribunal's powers a right to collaterally review the lawfulness of a Magistrate's decisions where a clear path to setting aside such decisions already exists. This ground has greater force by virtue of the fact that the decision is made by a decision-maker separate from the Board which referred the matter to the Tribunal. In that sense the argument against inferring a right of collateral review is stronger than it was in Pawelzik v SAHT or in Director of Housing v Sudi.
7. However, the authorities advert to a distinction between a substantive review and a decision to which a demonstrable error clearly attaches. A warrant invalid on its face is given as an example. The respondent in this matter asserts that the warrants had such patent invalidity. I am not satisfied that, in light of my conclusions above, the legislature contemplated that the Tribunal would make findings even regarding patent invalidity. In any event, a lack of specificity does not necessarily indicate "patent" invalidity. The recent decision in Director of Public Prosecutions (SA) v King[17] reveals the extent to which a claim of lack of specificity in a warrant can be subject to argument.
8. I conclude that the Tribunal should not be understood to have the jurisdiction to collaterally review the decision of the Magistrate to issue the warrants.
9. The ruling could conclude at this point. However, the parties also addressed the Tribunal on the exclusion of the evidence if it were to be found to have been unlawfully obtained. Some observations on that issue may enable the parties to better consider the way in which the Tribunal expects the receipt of material to be approached.

1. In the exercise of original jurisdiction, the Tribunal acts as the original decision-maker and applies those principles which, according to law, are to be applied to bodies that make such decisions pursuant to statute: SACAT Act, s 33(2). In so doing it is not bound by the rules of evidence: s 39(1)(b). However it is required to take all practicable steps to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in any proceedings: s 43(2). The effect of provisions such as these has been widely considered, both judicially and academically. Speaking extra-judicially, Hon Duncan Kerr said[18]:

Given that primary administrative decision makers are not burdened by the rules of evidence and may, subject to the rules of natural justice, properly rely on any probative materials relevant to their functions, there is no self-evident jurisprudential reason for a tribunal standing in those shoes, in the ordinary course and in the absence of contrary statutory direction, to place itself and the parties appearing before it in any different and more constrained position.

1. Flick and Perry JJ summarised the effect of such provisions in Sullivan v Civil Aviation Authority[19]:

The procedural flexibility afforded to an administrative tribunal freed from the rules of evidence does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide.

1. However, the High Court has also warned that a tribunal must also be mindful to avoid "the rules of evidence which have been excluded expressly by statute creep back through a domestic procedural rule".[20]
2. However, these statements do not override a particular statutory scheme and it is always necessary to consider whether the legislature has evinced an intention that the receipt of material by a tribunal will be dealt with in a particular way.
3. Section 39 of the SACAT Act provides:

39 - Principles governing hearings

_(1) On the hearing of any proceedings, but subject to the provisions of a relevant Act - _

(a) the procedure of the Tribunal will, subject to this Act, be conducted with the minimum of formality; and

(b) the Tribunal is not bound by the rules of evidence, may adopt, as in its discretion It considers appropriate, any findings, decision or judgment of a court or other tribunal (insofar as may be relevant to the proceedings before the Tribunal), and may otherwise inform itself as it thinks fit; and

(c) the Tribunal must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms.

_(2) Nothing in this Act affects any rule or principle of law relating to - _

(a) legal professional privilege; or

(b) "without prejudice" privilege; or

(c) public interest immunity.

(3) This section does not limit the operation of section 69.

1. The use of the phrase "but subject to the provisions of a relevant Act" [21] subordinates the provisions that follow to the provisions of the National Law. This operates in two ways. Firstly, where a provision of the National Law is directly inconsistent with one of the provisions of s 39, the provision in the National Law prevails. Secondly, where a provision in the National Law implies a particular approach to a matter, that might inform the exercise of any discretion contained within s 39.
2. Relevant also to the receipt and use of evidence are the following provisions (in addition to ss 39 and 43 already discussed above) in the SACAT Act:
   • section 8(1)(a)(iii) requires the Tribunal to engage in high-quality consistent decision-making;
   • section 8(1)(c) requires it to ensure expedition in determining matters;
   • section 8(1)(f) requires it to act with as little formality and technicality as possible, including by informing itself in such manner as the Tribunal thinks fit;
   • section 8(1)(g) requires it to be flexible in the way in which it conducts its business and to adjust its procedures to best fit a particular case or jurisdiction;
   • section 40 empowers the Tribunal to issue summonses on its own initiative to require a person to appear to give evidence or to produce evidentiary material or both;
   • section 41 empowers the Tribunal to enter any land or building and carry out any inspection that the Tribunal considers relevant to any proceedings;
   • section 42 empowers the Tribunal to refer any question arising in proceedings to an expert for investigation and report (and, under s 65, refer any question in a proceeding to be determined by a special referee);
   • section 69 preserves witness and party privileges in respect of giving evidence and producing documents.
3. The above provisions are entirely consistent with the Tribunal having a mandate to receive relevant material, evaluate it and deploy it to the purposes of the task at hand, unconstrained by the rules of evidence directed at filtering the material for reliability (such as the rules regarding hearsay) or at imposing a filter that acts as a supervisor of the criminal justice system (such as the exclusionary rules regarding unlawfully obtained evidence).
4. However, the provisions of the SACAT Act are not the only provisions to which the Tribunal must have regard when considering the operation of the principles for the receipt of material. Regard must also be had to the Act under which the particular proceedings are brought. In this case, that is the National Law.
5. The Medical Board, having formed a belief that the respondent has behaved in a way that constituted professional misconduct, has referred the matter to the Tribunal pursuant to s 193 of Schedule 2 of the National Law. The Tribunal then hears the matter pursuant to s 196 and is empowered to make a decision including whether the respondent has behaved in a way that constitutes professional misconduct. If the Tribunal decides that a respondent's conduct constitutes professional misconduct, the Tribunal is empowered to decide to reprimand or impose conditions on the respondent's registration or cancel and disqualify the respondent from being registered. Any such decision of the Tribunal is appealable to the Supreme Court.
6. In the making of the decision under s 196, the Tribunal is exercising original jurisdiction. There are some indicators in the National Law that the legislature intended that the Tribunal would take an approach to the receipt of material that aligns to some extent at least to the manner in which a court receives evidence, namely constrained by admissibility.
7. Section 11 of the National Law provides that the Tribunal may receive in evidence a transcript of evidence taken in proceedings before a court, tribunal or other body and draw any conclusions of fact from the evidence that it considers proper and may adopt, in its discretion, any findings, decision, judgement or reasons for judgement of any such court, tribunal or body that may be relevant to the proceedings. Section 12 concerns the failure of a person summonsed to give evidence to the Tribunal and creates a process for the obtaining of a court order for a person to be compelled to provide such evidence.
8. Section 41 provides that an approved registration standard for a health profession, or a code or guideline approved by a National Board is "admissible in proceedings under this Law or a law of a co-regulatory jurisdiction... as evidence of what constitutes appropriate professional conduct or practice".
9. Section 244 refers to 'evidentiary certificates' for the establishment of certain propositions as "prima facie evidence of the matter".
10. Schedule 5 and schedule 6 to Schedule 2 of the National Law set out the powers of investigators and inspectors, respectively. These include the power to apply to a magistrate for a warrant on the basis of a sworn written application. Section 7(8) of schedule 5 provides that:

[. . . ] if --

(a) an issue arises in a proceeding about whether an exercise of power was authorised by a warrant issued under this clause; and

(b) the original warrant is not produced in evidence;

the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.

1. An identical provision is set out in clause 7(8) of schedule 6.
2. Together, these provisions in the National Law reveal nothing that expressly overrides the general provisions of the SACAT Act with regard to the receipt of material, but by the use of terms such as "admissible" and "evidence" and the effect of these provisions, appear to contemplate that the Tribunal will take a more "court-like" approach to the receipt of such material. Plainly, the Tribunal's conclusions must be based on logically probative material. Further, where the conclusion of the Tribunal may have grave consequences for a party to the proceedings, it ought not to be lightly reached and that obligation entails consideration of what amounts to probative evidence.[22]
3. As Logan J said of the AAT in Sullivan v Civil Aviation Authority[23]:

In resolving justiciable controversies by a final judgement, a court is constrained to act on admissible evidence. An administrative decision-maker is not so constrained, as s 33(1)(c) of the AAT Act makes plain in respect of the Tribunal. However, an administrative decision-maker must act reasonably. As Pochi illustrates, there are particular kinds of administrative decisions which are attended with such grave consequences that to act on "inexact proofs, indefinite testimony or indirect references" (to borrow from Briginshaw at 362) may not be reasonable.

1. This informs the Tribunal that there are some filters to which received material must be applied. Those filters, however, are not the rules of evidence, and the authorities regarding criminal courts' discretion to exclude do not assist.
2. The relevant filters to the receipt of material are derived from the obligation to afford natural justice, and to provide fairness, in the administrative law sense. In this matter, neither the obligation to decide matters on logically probative material, nor the hearing rule or the rule against bias, which together make up natural justice, are in issue. The question, however, is whether it is fair to the respondent for the Tribunal to rely upon evidence which may have been unlawfully obtained. Where any such unlawfulness does not bear on the reliability of the material, unfairness in the relevant sense may be difficult to demonstrate. Fairness in this context relates to the respondent's ability to participate in the decision-making process to an extent commensurate with what the nature of the decision requires.
3. Consideration of the manner in which applications to exclude evidence from tribunals on the grounds of unlawfulness have been dealt with interstate is consistent with this approach.
4. In Martin v Medical Complaints Tribunal [24], Evans J of the Supreme Court of Tasmania concluded that the Medical Complaints Tribunal (Tasmania) had no discretion to exclude evidence unlawfully obtained. In that case, a medical practitioner was the subject of a complaint that he committed professional misconduct when he formed and maintained a sexual relationship with a female patient. A DNA profile obtained from the patient and later compared by police against the doctor's DNA was the subject of an affidavit tendered to the Tribunal by a police employee at the state's forensic science service. The practitioner maintained that the disclosure of the information from the database had not occurred in accordance with the Forensic Procedures Act 2000 (Tas) and that was not in dispute.
5. Rejecting an argument that the tribunal was bound by the state's Evidence Act, which contains a general power to exclude illegally obtained evidence, Evans J observed that the tribunal was not bound by the rules of evidence as set out in the Medical Practitioners Registration Act 1996 (Tas), schedule 5 of which established the tribunal and conferred upon it various powers.
6. Evans J observed that a criminal court has a common law discretion to reject evidence that was obtained illegally, unfairly or improperly, such discretion borne of the need to protect the integrity of the criminal justice system[25]. His Honour then proceeded to examine a number of South Australian authorities touching on whether such a discretion existed in a civil court[26], including the observations of Mullighan J in the Duke Group Ltd (in liq) v Pilmer [27], who considered that no such discretion to exclude except where the result would be a procedural unfairness or where the evidence had been obtained by a 'serious and deliberate infringement' of the legal rights of another.
7. Evans J went on to say[28]:

If, contrary to my view, the tribunal has a discretion to exclude evidence which is illegally, unfairly or improperly obtained, a significant factor to be taken into account in the exercise of that discretion is the function performed by the Tribunal. The Tribunal is not called upon to address considerations of "high public policy" relating to the administration of criminal or civil justice. The Tribunal's function is to hold a formal inquiry into a complaint about a medical practitioner and dependent upon its findings, take action as authorised by the Medical Practitioners Registration Act ...

1. That analysis appears apt in relation to the proceedings at hand.

[1] Proceedings were initiated in the Health Practitioners Tribunal SA which was dissolved on 8 August 2019. The proceedings transferred to SACAT pursuant to s 112 of the Statutes Amendment (SACAT) Act 2019.

[3] [1997] HCA 49; (1997) 192 CLR 69.

[4] [1997] HCA 49; (1997) 192 CLR 69 at 98 (McHugh J).

[5] (2011) 33 VR 559; [2011] VSCA 266.

[6] [2011] VSCA 266; (2011) 33 VR 559 at 562 [11] ; [2011] VSCA 266 at 4 [11].

[7] (2011) 33 VR 559; [2011] VSCA 266 at 8 [24].

[8] [2002] HCA 11; (2002) 209 CLR 597.

[9] Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 at 10 [31].

[10] Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 at 11-13 [34] - [39].

[11] Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 at 14 [43].

[12] Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 at 14 [44].

[13] (2011) 33 VR 559; [2011] VSCA 266 at 44 [155].

[14] (2011) 33 VR 559; [2011] VSCA 266 at 60 [226].

[15] See, e.g. Attorney-General (SA) v Raschke (2019) 133 SASR 215; [2019] SASCFC 83.

[16] Pawelzik v South Australian Housing Trust [2019] SACAT 44.

[17] [2019] SASC 42.

[18] The Hon Justice Duncan Kerr, Keeping the AAT from becoming a court, AIAL (Sydney, NSW) Seminar, 27 August 2013.

[19] [2014] FCAFC 93; 226 FCR 555 at 580 [97].

[20] Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; 36 FLR 482 at 492.

[21] A relevant Act is defined as an Act conferring jurisdiction upon the Tribunal.

[22] Minister for Immigration and Ethnic Affairs v Pochi [1981] HCA 58; (1981) 149 CLR 139; Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; 226 FCR 555.

[23] [2014] FCAFC 93; 226 FCR 555 at 562 [16].

[24] [2006] TASSC 73; 15 Tas R 413.

[25] [2006] TASSC 73; 15 Tas R 413 at 419-420 [11].

[26] [2006] TASSC 73; 15 Tas R 413 at 420 [13].

[27] (1994) 63 SASR 364 at 377-378.

[28] [2006] TASSC 73; 15 Tas R 413 at 422 [18].