Administrative Law - Judicial Review - Reviewable decisions and conduct - Decisions to which judicial review legislation applies - Decisions of administrative character - Decisions of an administrative character and decisions of a judicial character not mutually exclusive.

Medical Practitioners Registration Act 1996 (Tas), Sch5, cl 2.

Judicial Review Act 2000 (Tas).

Judgment Number: [2005] TASSC 24

1 At the outset of the hearing of a complaint against a medical practitioner referred by the Medical Council of Tasmania to the Medical Complaints Tribunal, pursuant to the Medical Practitioners Registration Act 1996, application was made by counsel for the medical practitioner, Mr Bugg, for an order prohibiting the reporting, or other disclosure, of the proceedings. That Act, Sch5, cl 2, provides:

"2 (1) Except as provided by this clause, the proceedings of the Tribunal are to be open to the public.

(2) During any proceedings the Tribunal may, on the application of a party to the proceedings or on its own motion, do either or both of the following if it considers that there are compelling grounds to do so:

(a) make an order excluding any person from the proceedings;

(b) make an order prohibiting the reporting or other disclosure of all or any of the proceedings or prohibiting the reporting or other disclosure of particular information in respect of the proceedings.

(3) Without limiting the range of grounds that may be relevant for the purposes of subclause (2), the Tribunal may exercise its power under that subclause if -

(a) it is dealing with privileged information or information that has been communicated to the Council or the Tribunal in confidence; or

(b) it is dealing with information concerning the personal affairs, finances or business arrangements of a registered medical practitioner; or

(c) the disclosure of the proceedings or the information may be unfairly prejudicial to the reputation of a registered medical practitioner or any other person.

(4) Nothing in this clause is to be taken as preventing the Tribunal from -

(a) meeting in camera for the purpose of preparing for any proceedings or any stage of any proceedings; or

(b) meeting in camera for the purposes of reaching a finding on any matter in the course of, or at the conclusion of, any proceedings."

2 The Tribunal made the order sought and, in summary, said that the compelling grounds for doing so were its satisfaction that there was a risk that inaccurate and sensationalist publicity of the proceedings would have an adverse effect on the delivery of services of the nature of those provided by the practitioner in a significant area of Tasmania and have most undesirable consequences on some members of the public. The Tribunal said it was significant that the order made applied only to the reporting and disclosure of the proceedings and was not an order for a closed or secret hearing.

3 At the conclusion of the hearing, the Tribunal announced reasons for its decision in which it described the conduct of the practitioner subject to the reference as a gross violation of ethical standards and said that the practitioner had acted in complete and wanton disregard for a patient's wellbeing, and in complete disregard for what the practitioner knew at the time to be wrong, in the sense of being professionally unacceptable and unethical. The Tribunal reprimanded the practitioner; made orders curtailing the practitioner's right to practice for up to five years; imposed requirements that for five years the practitioner be subject to the supervision of a mentor, undertake training, and participate in a peer review process; and imposed a requirement that the practitioner seek advice and undertake such treatment as recommended.

4 Upon the announcement of the Tribunal's decision, Mr Jackson, counsel appointed by the Council to assist the Tribunal, submitted to the Tribunal that its order prohibiting the reporting or other disclosure of the proceedings should be varied so that it did not extend to reporting and disclosing the Tribunal's decision. Mr Jackson referred the Tribunal to the Medical Practitioners Registration Act, s54(5), which provides:

"(5) When the Tribunal's decision takes effect, the Council may do any or all of the following:

(a) give notice of the decision to the AMC and to such medical registration authorities and other medical bodies as the Council considers appropriate to notify;

(c) cause notice of the decision to be published in any professional publication related to the practice of medicine;

(d) cause notice of the decision to be published in any newspaper published and circulated generally in this State;

(e) cause notice of the decision to be published in the Gazette."

5 The Tribunal acquiesced to Mr Jackson's submission insofar as it varied its order so as to enable the Council to exercise its discretion under s54(5)(a) and (b) to give notice of the decision to the Australian Medical Council Incorporated and to such medical registration authorities and other medical bodies as the Council considered appropriate, and to give notice of the decision to the Secretary of the Department. In explaining its reasons for refusing to vary the order any further, the Tribunal said it took the view that nothing had changed since the order was made and the essential factual basis for the order remained intact.

6 The Council has applied to this Court pursuant to the Judicial Review Act 2000, s17, to review the Tribunal's decision on the application to vary its order restricting the publication of its decision ("the variation decision") on the ground that the decision was an improper exercise of the Tribunal's power. The Council contends that in the exercise of the power, the Tribunal took into account irrelevant considerations and failed to take relevant considerations into account, Judicial Review Act, s20(a) and (b). The Council has proceeded under the Judicial Review Act, as the right of appeal conferred by the Medical Practitioners Registration Act, s61, does not extend to a decision of the nature in question. Mr Bugg submits on behalf of the practitioner that the Judicial Review Act does not provide a means by which the Council may in effect appeal the variation decision, as jurisdiction under that Act is limited to decisions "of an administrative character", s4(1), and the variation decision is not an administrative decision.

7 Traditionally an enquiry as to whether a decision was administrative involved returning to the historical distinction drawn between judicial, administrative and legislative decisions, a distinction that can be most illusive. In Evans v Friemann & Ors (1981) 35 ALR 423 at 433, Fox ACJ said of the distinction maintained between the administrative, the legislative and the judicial:

"It has, in fact, proved very difficult, virtually impossible, to arrive at criteria which will distinguish in all cases the three concepts I have mentioned. They at times overlap: 'The borderland in which judicial and administrative functions overlap is a wide one, and the boundary is the more difficult to define in the case of a body such as the appellant board, the greater part of whose functions are beyond doubt in the administrative sphere' (per Lord Simonds, speaking for the Privy Council in Labour Relations Board of Saskatchewan v John East Iron Works Limited (1949) AC 134, 148). Sometimes the category into which an act or function will be placed will be decided in part on historical considerations or on the source of power or the nature of the body to which it is given."

8 Whilst the Tribunal is not a court, it must observe the rules of natural justice, the Act, Sch5, cl 1(c), and in a number of ways it is obliged to act in a manner commonly described as acting judicially. This circumstance can be misleading when it becomes necessary to determine whether a particular decision of the Tribunal is administrative. For example, whilst a magistrate is ordinarily required to act judicially, not every decision made by a magistrate is a judicial decision. In Lamb v Moss & Anor [1983] FCA 254; (1983) 49 ALR 533, Bowen CJ, Sheppard and Fitzgerald JJ considered whether certain decisions made by a magistrate in the course of committal proceedings were of an administrative character within the meaning of that term as used in the Administrative Decisions (Judicial Review) Act 1977 (Cth). Whilst it was conceded by the appellant in that case that committal proceedings are administrative, it was contended by the appellant that the decisions in question were judicial, as the magistrate, although acting administratively, was required in the discharge of his functions, to act judicially. The court said at 559:

"We are clearly of opinion that the fact that the magistrate was bound to act judicially, ie justly and fairly, provides no reason why the conclusion should be drawn that decisions made or to be made by him in the course of administrative proceedings were or would be of a judicial, rather than an administrative, character for the purposes of the Act. The decision as to whether there is, or is not, a prima facie case and, if there is, the further decision as to whether or not to commit an accused person for trial are the central steps in the administrative process which is involved. To say that a magistrate hearing committal proceedings is bound to act judicially is to do no more than to describe how he must perform his administrative function. It does not turn his decision into a judicial one nor does it make his decision judicial in character. Indeed, this is clearly established by authority: see, eg R v Davison [1954] HCA 46; (1954) 90 CLR 353, per Kitto J (at p373), R v Trade Practices Tribunal ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, at p373; Sankey v Whitlam (1978) 142 CLR 1, at p80. For that reason alone the appellant's first submission should be rejected.

But there is a more particular reason connected with the operation of the Act itself which leads one to the same result. The Act recognises that many of the decisions which may be the subject of review pursuant to its provisions will be decisions of persons, bodies or tribunals that are bound to act judicially. This is most clearly seen from a consideration of the grounds upon which the Court may grant relief, particularly the ground provided for in para 5(1)(a) of the Act which is that a breach of the rules of natural justice occurred in connection with the making of the decision. The rules of natural justice apply primarily to persons or bodies bound to act judicially whether in the discharge of administrative or judicial functions. So the Act was intended to expose decisions to review when a person or body acting administratively was bound to act judicially and thus afford to persons likely to be affected by a decision natural justice. The acceptance of the appellant's submission would be seriously restrictive of an important provision of the Act. To adopt it would run counter to the plain intendment of the legislation."

9 The point made in the second paragraph quoted above applies equally to the Judicial Review Act, which details the grounds for reviewing a decision or conduct referable to a decision in ss17(2) and 18(2). In each instance, the first ground is "a breach of the rules of natural justice". It can accordingly be said that this Act recognises that administrative decisions may be made by entities bound to act judicially.

10 The authors of Judicial Review of Administration Action, 3 ed, Law Book Company (2004) at 67 correctly observe that:

"There are many cases, but very few attempts at defining 'administrative', beyond saying that its only antitheses are legislative and judicial ...".

This is so because many of the cases that have addressed what is administrative have done so in the course of distinguishing a judicial or a legislative function from an administrative function. More significantly, in terms of the distinction between administrative and judicial functions, the decisive issue in the cases has been whether the function in question was judicial. This is illustrated by cases decided during the period when, in order to invoke the court's jurisdiction to review a decision by means of a prerogative writ, it was necessary to establish that the decision under challenge was made by a decision-maker subject to a duty to act judicially; see R v Legislative Committee of the Church Assembly [1928] 1 KB 411 at 415. Since Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, the jurisdiction invoked by means of a prerogative writ has no longer depended upon whether "judicial" was the applicable adjective to describe the function performed by the maker of the decision under challenge. Nevertheless, vestiges of an approach remains that will not allow that a decision is administrative unless it has been first determined that it is not judicial. This approach is understandable in cases that determine whether any part of the judicial power of the Commonwealth has been conferred on a non-judicial body in breach of the Commonwealth Constitution. Whilst these cases frequently touch on whether the power in question is administrative, they almost inevitably, give primacy to the determination of whether it is judicial, as this will decide whether the conferral of power in question is constitutional. Nevertheless, it has long been accepted that the same power may properly be characterised as both a judicial power and an administrative power, Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd [1959] HCA 32; (1959) 101 CLR 652 at 660. A power may be judicial when conferred on a court and the same power may be administrative when conferred on a non-judicial entity; R v Joske & Ors; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation (1972 - [1974] HCA 8; 1973) 130 CLR 87 at 99; R v Quinn & Anor; Ex parte Consolidated Foods Corporation [1977] HCA 62; (1977) 138 CLR 1; and Little v Registrar of High Court [1990] FCA 198; (1990) 96 ALR 448.

11 Just as administrative powers and judicial powers are not mutually exclusive, so decisions of an administrative character and decisions of a judicial character are not mutually exclusive. In my view, it is for this reason that the phrase "administrative character" should not be interpreted as "purely administrative character" or "solely administrative character"; see Moss v Brown & Anor (1982 - [1983] FCA 41; 1983) 47 ALR 217 at 223. In the context of the Judicial Review Act, an enactment that confers jurisdiction in relation to decisions of an administrative character, it would, in my view, ordinarily be wrong to approach the assessment of whether or not a particular decision has such a character by starting with an assessment of whether it has a judicial character.

12 It is not appropriate to endeavour to formulate a comprehensive definition of the phrase "decision of an administrative character". I desist, not simply because it is undesirable to do so, Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64 at 73 and Burns v Australian National University (1981 - [1982] FCA 59; 1982) 40 ALR 707 at 714, but because, for my part, it is impossible to do so, Evans v Friemann & Ors (supra) at 433 and Hamblin v Duffy & Ors [1981] FCA 38; (1981) 34 ALR 333 at 338.

13 There is ample authority from which support can be drawn for the proposition that the Judicial Review Act, being an enabling and ameliorating enactment which confers on citizens important rights in relation to administrative actions under state legislation, it should be given a wide application and the phrase "decision of an administrative character" should be given a wide construction; Evans v Friemann & Ors (supra) at 435, Tooheys Ltd v Minister for Business and Consumer Affairs (supra) at 73, Kelly v Watson & Ors (1985 - 1986) 64 ALR 113 at 120 and Ansett Transport Industries Ltd v Secretary, Department of Aviation (1986 - 1987) 70 ALR 743 at 751. It has been accepted that the word "administrative" carries with it the notion of "managing", "executing" or "carrying into effect", Burns v Australian National University (supra) at 713, and that the expression "decision of an administrative character" includes at least "the application of a general policy or rule to particular cases; the making of individual decisions", Hamblin v Duffy & Ors (supra) at 339. The meaning given to "administrative" in the Concise Oxford Dictionary, 6 ed, is "pertaining to management of affairs".

14 Against this background I turn to the decision in question. That the decision was made by a statutory tribunal not a court is an indicator that it was intended to be covered by the Judicial Review Act, Evans v Friemann & Ors (supra) at 434 and Hamblin v Duffy & Ors (supra) at 339. Arguably the absence of any provision in the Medical Practitioners Registration Act authorising an appeal from such a decision is a similar indicator. The decision does not simply determine an issue between parties. Whilst an order prohibiting the publication of any aspect of proceedings obviously affects the parties, the issue involved is not one as to which the parties alone have standing, John Fairfax & Sons Ltd v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465. The decision relates to a matter that pertains to the operations of the Tribunal, that is, the publicity to be given to a proceeding and its outcome. It is pertinent that pursuant to Sch5, cl 2(2), the Tribunal may make an order prohibiting publicity of a proceeding of its own motion; see R v Joske & Ors; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation (supra) at 93. To my mind, such a decision can properly be characterised as administrative, although it may also be judicial. I conclude that the revocation decision is one "of an administrative character" for the purposes of the Judicial Review Act, s4(1).

15 The application to this Court relates to the Tribunal's refusal, when it made the revocation decision, to wholly exempt the Council's statutory role in relation to the reporting of the Tribunal's decision from the order the Tribunal had made prohibiting the reporting or disclosure of the proceeding. In this regard, the role given to the Council by the Act is important. Pursuant to the Medical Practitioners Registration Act ("the Act), s6(1), the Council consists of: nine registered medical practitioners nominated by the Minister; one legal practitioner, of not less than ten years' standing, nominated by the Minister; and one person nominated by the Minister to represent the interests of consumers and medical services. The members are appointed by the Governor, the Act, s6(2). The Council's functions in Tasmania include: to administer the registration of medical practitioners; to supervise the practice of medicine; to examine complaints and, as necessary, refer them to the Tribunal; to prosecute offences against the Act; to monitor the standard and provision of medical services; to monitor standards of medical education and training; and to advise the Minister, the Act, s7. The Council has the power to do all things necessary or convenient to be done in connection with the performance of its functions, and its powers include power to: share information with the Australian Medical Council and other relevant bodies; publish and distribute information concerning the Act to registered medical practitioners and other interested persons; support medical education and training; hold or arrange examinations; provide counselling services for registered medical practitioners; be a member of any national or other body, programme or forum concerned with medical practitioners; and participate in the establishment of such a body, the Act, s8. The Council must perform its functions and exercise its powers under the Act so as to: ensure the medical services provided to the public are of the highest possible standard; ensure that persons practice medicine according to the highest professional standards; and guard against unsafe, incompetent and unethical medical practices, the Act, s9. The Council is to keep a register called the Register of Medical Practitioners in which it records specified information in relation to each person who is granted registration to practice as a medical practitioner; that information includes the suspension or removal of a person's registration and the conditions, if any, of a person's registration and any modification of those conditions, the Act, s33. The register is open to public inspection, the Act, s36. The Council may publish in the Gazette: a copy of the register or part of the register; a notice of the grant of registration as a practitioner to any person including any conditions imposed on the registration and any modification of those conditions; a notice of the removal from the register of the name of any person; a notice of the suspension of the registration of any person; or a notice of any disciplinary action taken in respect of a registered person; and the Council may provide a member of the public with a copy of such a notice, the Act, s37.

16 The foregoing summary is sufficient to indicate the pre-eminent role Parliament has designated for the Council in relation to the control of medical practitioners and the maintenance of their standards and services. An aspect of this role is the discretionary power given to the Council in relation to the provision of notice of decisions of the Tribunal as detailed in the Act, s54(5), which is set out in par4 of these reasons. This discretionary power augments the Council's obligation to record in the Register of Medical Practitioners the details of a decision, that is, the suspension or removal of a practitioner's registration or the conditions of a practitioner's registration, the Act, s33, and the Council's discretionary power to publish in the Gazette notice of such matters and notice of any disciplinary action taken against a practitioner, the Act, s37(1). In the face of the specific obligations and discretions bestowed on the Council in relation to these matters, I would have thought it was strongly arguable that the general power given to the Tribunal by the Act, Sch5, cl 2(2), to "make an order prohibiting the reporting or other disclosure of all or any of the proceedings or prohibiting the reporting or other disclosure of particular information in respect of the proceedings" did not extend to curtailing the statutory obligations and discretions of the Council to give notice of a decision. Ordinarily where there is a conflict between general and specific provisions within an enactment, the specific provisions prevail; D C Pearce and R S Geddes, Statutory Interpretation in Australia, 4 ed, Butterworths, 1996 at [4.24]. However, as this contention was not advanced before the Tribunal or upon this application, I proceed on the assumption, without so deciding, that the Tribunal had the power to make an order prohibiting the Council from disclosing, all or any of, the decision of the Tribunal.

17 The Tribunal's revocation decision had the effect of prohibiting the Council from exercising the discretion conferred on it by the Act, s54(5)(c), (d) and (e), to cause notice of the Tribunal's decision on the complaint against the practitioner to be published in: any professional publication related to the practice of medicine; any newspaper published and circulated generally in Tasmania; and the Gazette. The Tribunal's decision on the complaint imposed conditions on the practitioner. If the Council records those conditions on the register, as required by the Act, s33(4), and allows, as it must, a person to inspect the register, the Act, s36(1), it may breach the order prohibiting the disclosure of the proceedings against the practitioner. In explaining its reasons for refusing to vary its initial order prohibiting the reporting, or other disclosure, of those proceedings beyond allowing the Council to exercise the discretion conferred on it by the Act, s54(5)(a) and (b), the Tribunal said it took the view that nothing had changed since that order was made and the essential factual basis for the order remained.

18 At the outset of the hearing before the Tribunal, the matters that were the subject of the complaint against the medical practitioner were simply allegations. The Tribunal's decision converted some of those allegations into adverse findings against the medical practitioner. There is a marked difference between prohibiting the publication of unproved allegations and prohibiting the publication of adverse findings. More significantly, upon the Tribunal announcing its decision, a number of statutory obligations and discretions bestowed upon the Council by the Act were enlivened. Those obligations and discretions are a vital aspect of the Council's capacity to fulfil its role under the Act. That role is on-going. The circumstances relevant to the Council's fulfilment of its role in relation to any particular medical practitioner can change from day to day. Whilst it may be quite inappropriate to publish notice of a decision of the Tribunal in a newspaper at the time a decision is handed down, the reverse may be so at some later stage. In these circumstances, I cannot envisage any situation in which it would be appropriate for the Tribunal to curtail the capacity of the Council to comply with its obligations and exercise its discretions in relation to recording and giving notice of a decision of the Tribunal. The evidence before the Tribunal provided no basis for concluding otherwise than that the Council would exercise these discretions properly and reasonably. It is apparent from the transcript of the hearing before the Tribunal that the submissions of counsel in relation to the revocation decision gave little attention to the provisions of the Act detailing the obligations and discretions of the Council, save for the Act, s54(5). In these circumstances, it is not surprising that, in my respectful view, the Tribunal gave insufficient attention to those matters when it made the revocation decision and failed to pay due regard to the significant difference between an order prohibiting the reporting or disclosure of an ongoing proceeding and an order that had the effect of confining the capacity of the Council to deal with a decision of the Tribunal in accordance with the provisions of the Act. I am satisfied that pursuant to the Judicial Review Act, s27(1)(a), the revocation decision should be quashed and that pursuant to s27(1)(b), an order should be made referring the issue dealt with by the revocation decision to the Tribunal for further consideration. I will hear the parties as to the form of the order.