1. In 2005, the Commonwealth Government requested the Productivity Commission to undertake a research study to examine issues affecting health workers including the "supply of, and demand for, health workforce professionals" and to "propose solutions to ensure the continued delivery of quality healthcare over the next 10 years" (Preamble, clause 2.1, Intergovernmental Agreement for a National Registration and Accreditation Scheme for the Health Professions (the "Intergovernmental Agreement").
2. In January 2006, the Productivity Commission delivered its report entitled Australia's Health Workforce.
3. The report recommended that there should be a single national registration board for health professionals as well as a single national accreditation board for health professional education and training. At a meeting of 14 July 2006, the Council of Australian Governments ("COAG") agreed to establish a single national registration scheme for health professionals beginning with the nine professional groups then registered in all jurisdictions. COAG further agreed to establish a separate national accreditation scheme for health education and training.
4. COAG agreed at its meeting of 13 April 2007 to establish a single national scheme with a single national agency encompassing both the registration and accreditation functions. The national registration and accreditation scheme would consist of a "Ministerial Council, an independent Australian Health Workforce Advisory Council, a national agency with an agency management committee, national profession-specific boards, committees of the boards, a national office to support the operations of the scheme and at least one local presence in each State and Territory" (Preamble, clause 2.5, Intergovernmental Agreement; Explanatory Notes, pp 2-3, Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008 (the "Administrative Arrangements Bill").
5. On 26 March 2008, the Commonwealth and the States of New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania, the Australian Capital Territory and the Northern Territory entered into the Intergovernmental Agreement.
6. The Intergovernmental Agreement recites that the objectives of the Agreement include an objective of establishing a single national registration and accreditation scheme for health professionals beginning with the nine professions then registered in all participating jurisdictions (the professions being, physiotherapy, optometry, nursing and midwifery, chiropractic care, pharmacy, dental care (dentists, dental hygienists, dental prosthetists and dental therapists), medicine, psychology and osteopathy).

114. The new scheme would commence on 1 July 2010.

1. As to implementation, the States and Territories undertook to use their best endeavours to submit to their respective parliaments whatever bill or bills would be necessary to give effect to achieving a national scheme from 1 July 2010 (clause 6.1, Intergovernmental Agreement). The structure and functions of the national scheme were to be set out in the legislation establishing the scheme. The State of Queensland would host the substantive legislation to give effect to the national scheme subject to the approval of the Australian Health Ministers' Conference ("AHMC"). Once approved by the AHMC, the State of Queensland would take the lead in enacting the primary legislation to establish the scheme (clause 6.3). The remaining States and Territories agreed to use their best endeavours to enact legislation in their jurisdictions applying the Queensland model legislation as a law of those jurisdictions so as to permit the scheme to be established on 1 July 2010 (clause 6.4). The parties agreed to take steps to modify other legislation inconsistent with legislation establishing the new scheme (clause 6.6).
2. The States and Territories also agreed to use their best endeavours to ensure legislation, as appropriate, would provide for entities in their jurisdiction to investigate and hear serious disciplinary matters and the hearing of appeals against less serious disciplinary matters arising from the registration function. Each State and Territory would be responsible for deciding which entity would be responsible for that function in their jurisdiction in accordance with national criteria agreed by the AHMC (see clause 6.8).
3. In the interests of achieving a smooth transition to the national scheme, the AHMC would administratively establish a national agency with an interim Chief Executive Officer to commence the implementation of the scheme (clause 6.9). To further ensure a smooth transition to the scheme, all existing members of jurisdictional boards and supporting hearing panels for the nine professions would, if they agreed, be appointed to a list of persons from which national boards might form committees for a period of two years from the commencement of the operation of the scheme.
4. Attachment A to the Intergovernmental Agreement more particularly describes the structure and functions of the scheme.
5. The implementation of the national scheme was to be effected by a national law passed by the State of Queensland as the host jurisdiction. The first stage of implementing the national scheme was to be effected by enacting the Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 (Qld) (the "Administrative Arrangements Act"). The substantive provisions of the national scheme would be the subject of proposed second stage legislation emerging out of further consultation with the professions and other interested persons. The second stage legislation became the Health Practitioner Regulation National Law Act 2009 (Qld) which by s 4 applied the Health Practitioner Regulation National Law (often described as the model law) set out in the schedule to that Act as a law of the jurisdiction of Queensland as from 1 July 2010.
6. The Explanatory Notes for the Administrative Arrangements Bill describes the policy objectives of the Bill as the establishment of the various organs of the national scheme. The Bill provided for the establishment of the Australian Health Workforce Ministerial Council which would appoint members to the Agency Management Committee and the National Boards, and issue policy directions as needed to facilitate the first stage implementation of the national scheme. The Ministerial Council would comprise Ministers of the governments of each participating jurisdiction and the Commonwealth Minister with portfolio responsibility for health.
7. The Bill also provided for the establishment of the Australian Health Practitioner Regulation Agency (the "National Agency") which would be responsible for the administration of the national scheme in accordance with the legislation of each jurisdiction and policy directions issued by the Ministerial Council. The Bill also provided for the establishment of National profession-specific boards for the health professions within the scope of the national scheme. The Bill also provided for the establishment of the Australian Health Workforce Advisory Council (the "Advisory Council") to provide independent advice to the Ministerial Council on matters related to the national scheme.
8. The Bill contemplated that the National Agency would be operational on 1 February 2009 and the National Boards would be operational on 1 July 2009.
9. The Administrative Arrangements Act was enacted by the Queensland Parliament in November 2008 to give effect to the establishment of the organs of the national scheme as discussed. Section 7 of the Schedule to the Administrative Arrangements Act provides that the Ministerial Council may give directions to the National Agency and to a National Board. Section 13 establishes the Advisory Council and ss 14, 16 and 17 set out the functions, powers and membership of the Advisory Council. Section 18 establishes the National Agency and ss 19 and 20 set out the powers and functions of the National Agency. Section 24 establishes the Agency Management Committee and its functions are set out at s 26. The functions of the Chief Executive Officer of the National Agency are set out at s 29. Section 37 establishes each of the National Boards for the health professions listed in the table under s 37 of which there are 10. Sections 38, 39, 42 and 43 set out the membership, eligibility for appointment, functions and powers of the National Boards. Section 45 provides for the establishment of committees by a National Board to do any of the things set out in s 45.
10. The Parliament of Queensland then enacted the Health Practitioner Regulation National Law Act 2009. That Act received assent on 3 November 2009 and the national law became a law of the State of Queensland as from 1 July 2010. Other States and Territories also enacted legislation adopting the National Law so as to create a uniform legislative scheme across the country. (See Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW); Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic); Health Practitioner Regulation National Law (ACT) Act 2010 (ACT); Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT); Health Practitioner Regulation National Law (Tasmania) Act 2010; Health Practitioner Regulation National Law (South Australia) Act 2010 (SA); Health Practitioner Regulation National Law (WA) Act 2010 (WA).
11. Section 10 of the National Law Act (that is, the Queensland Act) had the effect of repealing the Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 (Qld) from 1 July 2010 and the organs of the national scheme established under that Act were carried forward under the National Law Act.
12. The Queensland Parliament also enacted the Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 (the "Amendment Act") which made administrative and consequential amendments to Queensland legislation necessary to reflect the commencement of the national scheme. Also see [132] of these reasons. The Amendment Act also made minor amendments to the National Law.
13. Some additional information must be added to give an account of what occurred in South Australia.
14. In South Australia, the law first enacted as the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) did not include Schedule 2, being the National Law provisions. Instead, it applied the text of Queensland's Health Practitioner Regulation National Law Act 2009 ("the Queensland Act") as a law of South Australia until such time as the Governor of South Australia made regulations incorporating some or all of the National Law into the South Australian Act. Once this was achieved, the South Australian Parliament was empowered under the provisions of the National Law to make regulations that would modify the Act so as to replicate in full or in part any amendment made by the Queensland Parliament to the National Law as it existed in that State.
15. The Governor made two sets of regulations in 2010 relevant to the South Australian Act. One was general regulations made and commenced on the day that the Act commenced, namely 1 July 2010. The other, incorporating the National Law as Schedule 2 of the South Australian Act were made and commenced on 12 August 2010.
16. This timeline is relevant to the creation of bodies known as "National Boards" under the scheme, including the Medical Board of Australia. Under the South Australian Act originally enacted, the Queensland Act as in force on 1 July 2010 was applied until the National Law provisions were incorporated into the South Australian Act by regulation. The effect of this was that for about six weeks, the law in South Australia was the Queensland law, and thereafter, it was the law as made in South Australia.
17. Section 31 of the Schedule 1 to the Queensland Act, at the time that it was applied in South Australia by the South Australian Act, established an entity called the Medical Board of Australia as of 3 November 2009 when the Queensland Act commenced operation. When the South Australian Act commenced operation, applying the law of Queensland, the Medical Board of Australia was already established by the Queensland Act. The South Australian Act, in applying Schedule 1 of the Queensland Act as a law of South Australia, also contained a provision (s 31) "establishing" the Medical Board of Australia.
18. In light of the fact that the South Australian Act had, upon applying the Queensland Act, applied a provision that established the Medical Board of Australia, s 31 is best understood not to have had the effect of establishing the Board for the purposes of South Australian law because that had occurred six weeks earlier. For the purpose of these proceedings, however, the point to be made is that the Medical Board of Australia was established by South Australian law in July or August 2010.
19. Section 31 of the South Australian Act and various other provisions relating to National Boards were amended in November 2018. The amendment was effected using the mechanism provided for in s 4(4) of the South Australian Act, namely the making of South Australian regulations to effect the amendment to the South Australian Act.
20. The Health Practitioner Regulation National Law (SA) (Amendment of Law) (No 3) Regulations 2018[7] amended the definition of "National Board" from "a National Health Practitioner Board established by s 31" to "a National Health Practitioner Board continued or established by regulations made under s 31". The regulations also amended s 7 of the National Law which referred to Boards "established by this Law" to say "established by or under this Law", and repealed s 31 "establishing" the Boards for a new provision that (relevantly) required regulations to be made to continue an existing Board.
21. That paved the way for the making of regulations under the amended s 31. Section 245 of the National Law provides for regulations to be made under the National Law by a Ministerial Council, and published by the Victorian Government printer. Thereafter, the regulations may be disallowed by the South Australian Parliament for the purposes of South Australian law, but that disallowance only takes effect if the majority of participating jurisdictions disallow the regulation.
22. Regulation 4 of the Health Practitioner Regulation National Law (South Australia) (Amendment of Law) (No 3) Regulations 2018 continues the Medical Board of Australia for the medical profession.
23. Tracing the history of the party to these proceedings that describes itself as the Medical Board of Australia, it can be seen that the entity, for the purposes of South Australian law, was established for the purposes of the South Australian Act on 1 July 2010 when the text of the Queensland law was applied in South Australia. And then continued by regulation 4 of the 2018 regulations as made in South Australia.

1. The Board submitted that that scheme, properly construed, creates a single body and not multiple bodies of the same name and with the same appointees. It was certainly the aim of the creators of the scheme to do so and this intention was conveyed through s 7 of the National Law which provides that:

7 - Single national entity

(1) It is the intention of the Parliament of this jurisdiction that this Law as applied by an Act of this jurisdiction, together with this Law as applied by Acts of the other participating jurisdictions, has the effect that an entity established by or under this Law is one single national entity, with functions conferred by this Law as so applied.

(2) An entity established by or under this Law has power to do acts in or in relation to this jurisdiction in the exercise of a function expressed to be conferred on it by this Law as applied by Acts of each participating jurisdiction.

(3) An entity established by or under this Law may exercise its functions in relation to -

(a) one participating jurisdiction; or

(b) 2 or more or all participating jurisdictions collectively.

(4) In this section, a reference to this Law as applied by an Act of a jurisdiction includes a reference to a law that substantially corresponds to this Law enacted in a jurisdiction.

1. The parties submitted, and I accept, that an entity may gather attributes from a variety of sources including even gathering corporate status from multiple sources. In R v Cawthorne; Ex parte Federated Clerks' Union of Australia (South Australia Branch),[8] Chief Justice King said:

There is, to my mind, nothing inconceivable in the notion of a body drawing corporate status from two or more statutory sources. Such a body would have the capacities and powers conferred by both statutes and would be subject to the obligations imposed by both. . . The effect of those provisions, if applied to an association already incorporated under the Associations Incorporation act, is to provide an additional legal source of corporate status for the association. The association, upon registration, would be incorporated under both Acts, and have the powers and capacities conferred by both, and be subject to the obligations imposed by both. So far as I can see, there is no conflict between the two statutes, and the mere possibility of such a conflict arising in the future is not a sufficient ground for restricting the meaning of "association" to exclude an already incorporated association.

1. As Mr Reynolds submitted, the High Court in R v Duncan; Ex parte Australian Iron and Steel Proprietary Ltd[9] was satisfied that a single body could derive its powers from multiple sources including from both Commonwealth and state sources. In that case, it was a Tribunal established in similar terms under both State and Commonwealth legislation and constituted by a single person. Chief Justice Gibbs said,

As at present advised, I can see no reason why a body which derives power from two sources cannot exercise whichever power appears available and appropriate in any particular case.[10]

1. The question to be determined in these proceedings concerns the character of the entity that is a party to the current proceedings. All that is required for current purposes is to observe that the body that is a party to these proceedings is the Medical Board of Australia, an entity established under the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA). The South Australian Act, by its definitions of the Board, identify the entity that brings proceedings in this Tribunal as the entity that was established under the South Australian Act, irrespective of whether it has other emanations (and I make no finding about that). The Board's corporate status and various other characteristics, for the purposes of these proceedings, are derived from the provisions of the South Australian Act.

1. The Board must be a state in order for it to engage s 75 of the Constitution.
2. The South Australian Act provides an indication of whether the Board has that character. Pursuant to s 31A(2) of the National Law, the Board is said to "represent the State". The Board submitted, and the Attorney-General joined in the submission, that this phrase could not create a status that was not otherwise supported by the presence of characteristics consistent with the Board having such status.
3. It is a relatively common characteristic attributed to an entity created by legislation that it "represent the State". Almost universally, but not in this case, that attribution is coupled with a provision that says that, without limiting the characteristic, the entity enjoys the immunities and privileges of the State. The additional provision suggests that the characteristic of representing the State is directed at classifying the entity's status particularly for the purposes of litigation. Further, where an entity does not represent the State, legislatures have from time to time - but not in this case - supplemented that statement with a provision to the effect that the entity's debts and liabilities are not guaranteed by the State.
4. Although there are alternative constructions that might be made as to the purpose or meaning of the provision, its mere presence supports the proposition that the Board is not the State. The inclusion of the statement suggests that drafters considered it necessary to include so that the Board's rights and liabilities would be found to be those of the State in certain circumstances but that without such statement, that may not occur. The reason that it may not occur is that the Board might be found not to be the State. Thus the fact that that Board is said to "represent the State" does not establish that it is the State, and is better understood as an indicator that the legislature considered that it is not the State.
5. In any event, the words alone are not conclusive. As the Board and Attorney-General submitted, a proper construction occurs by an examination of the relevant characteristics of the entity to determine whether it is a state. I accept the factors identified by the Board as indicia of constituting the state, namely:

1. The degree of control exercisable by the State over the Board's decision-making; 2. The extent of the governmental functions performed by the Board;

1. Whether the Board has corporators or is solely a creature of the State;

1. Whether the Board's funding is derived from Consolidated Revenue and to what extent; 2. The operation of the mechanisms of scrutiny over the Board; 3. Whether the Board's employees are treated as part of the Public Service.
2. The Board submitted and the Attorney-General for South Australia agreed, that an examination of the characteristics of the Board reveals that the Board lacks the characteristics of the State. In particular, the Board referred to the Board's membership and functions, a lack of Ministerial control over the performance of the functions, the lack of corporators and the source of funding from the Australian Health Practitioner Regulation Agency Fund.
3. The Board's functions of registering, accrediting and disciplining health practitioners and students have a regulatory or governmental character, in the sense that they have historically been performed by governments. However, as the Attorney-General submitted, whether or not a function becomes or ceases to be performed by a government is a function of policy and parliamentary will.[11] In fact, the function of overseeing a profession is one that is from time to time vested in private bodies.
4. A duty to discharge functions "in the public interest" is also an indication that the functions are performed by a body that is the State. A Member of a National Board, when performing his or her functions, must act in the public interest: Schedule 4, section 7 of the National Law. This falls short of requiring the body to act in the public interest (though it is likely to have the same effect) and is directed at ensuring that Board members do not elevate a duty they may have to an entity that represents health practitioners from which they may have been nominated, above the duty to advance the public interest in the performance of the functions of Board member.
5. A more significant indication is the requirement that the body performing the function is accountable within the Westminster system of responsible government. Accountability can operate through control mechanisms and, to a lesser extent, reporting and oversight measures operating on the body. Ministerial control can be effected by or through the appointment of members, the setting of policies or procedures and direct intervention in decision-making.
6. The Board's members are appointed by the Ministerial Council from each of the participating states.[12] There is Ministerial involvement in the appointment but it does not amount to control over the entire body. This adds a layer of complexity to the task of characterising the control mechanism. The Ministerial Council is created to establish a degree of control, but that control is limited by being shared amongst multiple governments in a federal system. Board members are appointed by reference to eligibility criteria relevant to skill and knowledge. They are not subject to any direct accountability to a Minister or even to the Ministerial Council for the decisions they make following appointment.
7. A Board makes recommendations to the Ministerial Council regarding registration standards.[13] It may unilaterally (i.e. without Ministerial Council approval) approve codes and guidelines for health practitioners it registers, but it must consult publicly on the content.[14] A Board must unilaterally determine an accreditation process,[15] and may make other decisions unilaterally to implement an accreditation system for the health practitioners it registers. Boards are unilaterally empowered to apply the registration system to individual practitioners.[16]
8. When these elements of the scheme for governance of the health professions are considered together, they indicate that the Board's activities lack the necessary control suggestive of accountability within the concept of the doctrine of responsible government. The Boards are not answerable to any or all of the parliaments of the participating jurisdictions, either directly or through Ministers.
9. National Boards do not hold their own funds. Their income and expenditure is controlled by AHPRA, established under the National Law.[17] AHPRA administers the Agency Fund and is required to have a separate account for each National Board. The National Law dictates the monies paid into and out of the Agency Fund. The income includes money appropriated by a parliament of a jurisdiction participating in the scheme but the Fund receives money from sources other than appropriation. Funding source is therefore not a strong factor telling for or against the Board's character as a state.[18]
10. Other indicia, such as whether the body is subject to an oversight body or whether its employees are public servants, are present in relation to a Board.
11. Whilst the Board is indirectly controlled to some extent through the involvement of the Ministerial Council in appointments and policy-setting, and the Board carries out functions of a regulatory nature some of which are directed at the protection of the public, I find that the Board is not the State. It lacks the proximity to parliamentary accountability necessary to have that characteristic.

1. The Board also canvassed the possibility that it might be characterised as being six states. The relevance of that is that if the Board were properly characterised as being the State of Victoria, then complete diversity between the parties has not been established.
2. The parties to the matter must be diverse as between each of them to engage s 75(iv). Where the parties to the dispute are all residents, each must be a resident of a different state in order to fulfil the requirement of diversity so as to engage s 75(iv).[19] In the absence of judicial consideration of the issue, the extrapolation of this principle is that where one party of the dispute is a state and the other is a resident or residents, the state must not be the state of which the other party is resident.
3. In light of the conclusion that the Board does not constitute a state, it is not necessary to consider whether it follows that it constitutes all six states and in particular the State of Victoria.
4. However, I observe that the references to "a State" in the Constitution and "the State" in the South Australian Act do not necessarily connote the same entity or entities. The states for the purpose of s 75 of the Commonwealth Constitution are "such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called "a State"".[20]
5. The South Australian Act makes references to "the State". The Commonwealth Acts Interpretation Act 1901 (AIA) applies to the South Australian Act.[21] The term "State" under the AIA means a state of the Commonwealth. Unless the contrary intention appears, the reference to "the State" is to be construed as including a reference to the plural "the States".[22] However, the context of the occurrences of the term "the State" in the South Australian Act is suggestive that it refers to the State of South Australia, e.g. s 77C. It must be acknowledged that a statute which is constructed in the manner of the South Australian Act might well be found to contain terms that have different meanings in their different parts, contrary to the usual principle of statutory construction favouring a uniform approach to terms within an Act. However, I favour the view that the proper construction of "the State" throughout the South Australian Act is the State of South Australia. Ultimately, it does not affect the determination of the referred question but if I am wrong and the Board is a state, I consider that in these proceedings it is the State of South Australia.

1. The Medical Board of Australia as established by the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) is not a State for the purposes of s 75 of the Commonwealth Constitution.
2. As the Board is not a state, s 75 is not engaged. It is not necessary to consider whether the jurisdiction exercised by the Tribunal in the determination of the proceedings is judicial in character.
3. I find that in the circumstances set out in the Statement of Agreed Facts dated 2 October 2019, the Tribunal has jurisdiction to determine the complaint against Dr Yu.

1. The question of law is decided in the affirmative.

[1] [2018] HCA 15; 92 ALJR 423.

[3] Raschke v Firinauskas [2018] SACAT 19 at [92].

[4] Momcilovic v The Queen (2011) 245 CLR 1 at [134]-[139] per Gummow J.

[5] R v Oregan; Ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323 at 332-333 per Webb J.

[6] [2011] FCA 980; (2011) 195 FCR 438 at 464 [108]- [126].

[7] Made on 29.11.18 at page 4077 of the Gazette.

[8] (1979) 22 SASR 433 at 436 per King CJ.

[9] [1983] HCA 29; (1983) 158 CLR 535.

[11] South Australia v Commonwealth [1942] HCA 14; (1942) 65 CLR 373 at 423 per Latham CJ.

[12] National Law, s 33.

[13] National Law, s 38.

[14] National Law, s 39.

[15] National Law, s 42.

[16] National Law, Schedule 2, Part 7.

[18] In contrast to the characterisation of the State Bank of NSW as the State where the bank's debts were guaranteed and profits were directed to Consolidated Revenue: State Bank of NSW v Commonwealth Savings Bank of Australia [1986] HCA 62; (1986) 161 CLR 639.

[19] Watson and Godfrey v Cameron [1928] HCA 4; (1928) 40 CLR 446 at 448-9 per Higgins J.

[20] Constitution, s 6.

[21] The Acts Interpretation Act 1915 (SA) is excluded under the National Law: s 7 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA).