Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP

Counsel for the Appellant: Mr C Horan KC with Mr G Johnson

Counsel for the First Respondent: Mr N Wood SC with Mr J R Murphy

Solicitor for the First Respondent: Victoria Legal Aid

Counsel for Second Respondent: The Second Respondent filed a submitting notice save as to costs

BETWEEN: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Appellant

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by: KENNY, WIGNEY AND ROFE JJ DATE OF ORDER: 3 MArch 2023

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT 1 The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs appeals from the judgment of a single judge exercising the Court's original jurisdiction. By the judgment under appeal, the judge set aside a Direction made by the Administrative Appeals Tribunal in reliance on s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). 2 The Tribunal made the Direction on 11 June 2021, in conducting a review of a decision made by a delegate of the Minister under ss 36 and 65 of the Migration Act 1958 (Cth) to refuse LPSP (the first respondent to this appeal) a protection visa. The Direction was as follows: Pursuant to s 33 of the Administrative Appeals Tribunal Act 1975, the Tribunal DIRECTS that: 1. On a date to be fixed, but not before 19 June 2021, the Applicant must attend and participate in a consultation with Dr Gosia Wojnarowska, Forensic Consultant Psychiatrist, for the purpose of Dr Wojnarowska preparing an independent expert report; and 2. The Respondent must pay all fees and costs associated with Dr Wojnarowska's assessment and preparation of her report. 3 The primary judge held that s 33 of the AAT Act did not confer the power to make this Direction: see LPSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1563 (PJ). 4 For the following reasons, we would dismiss the appeal.

THE CIRCUMSTANCES LEADING TO THE TRIBUNAL REVIEW 5 The following undisputed circumstances are disclosed in the voluminous material before us. LPSP is a national of South Sudan. He was twelve years old when he arrived in Australia in 2004. Before entering Australia, he had lived in camps for internally displaced people and in a refugee camp. He entered Australia under a Global Special Humanitarian (subclass 202) visa. LPSP has remained in Australia since his arrival in 2004. 6 On 28 November 2016, a delegate of the Minister cancelled his Global Special Humanitarian visa under s 501(3A) of the Migration Act. The delegate was satisfied that LPSP did not pass the character test to which s 501(3A) refers because, in conformity with s 501(3A)(a), he had a substantial criminal record within the meaning of s 501(6)(a), and was serving a sentence of imprisonment on a full-time basis in a custodial institution for a relevant offence for the purposes of s 501(3A)(b). Section 501(3A) required his visa to be cancelled in these circumstances. 7 LPSP subsequently sought the revocation of the cancellation decision under s 501CA of the Migration Act. He failed before a delegate of the Minister, and applied to the Tribunal for review of the non-revocation decision. On 31 October 2018, the Tribunal affirmed the delegate's decision not to revoke the cancellation of his visa. LPSP sought judicial review of the Tribunal's decision in this Court. He was unsuccessful at first instance, but succeeded on appeal. On 25 February 2020, a Full Court of this Court set aside the Tribunal's decision of 31 October 2018 and remitted the matter for redetermination: see GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202. On 28 August 2020, the Tribunal again affirmed the delegate's decision not to revoke the cancellation decision. 8 In the meantime, on 3 November 2019, LPSP applied for a Protection (Class XA, subclass 866) visa. A delegate of the Minister refused this application on 30 January 2020, on the basis that LPSP did not satisfy s 36(2)(a) or (aa) of the Migration Act. LPSP applied to the Tribunal for review: on review, the Tribunal was satisfied that LPSP did in fact meet the refugee criterion in s 36(2)(a) of the Migration Act, and the complementary protection criterion in s 36(2)(aa) of that Act. The matter was remitted for reconsideration pursuant to s 415(2)(c) of the Migration Act, with the direction that LPSP satisfied s 36(2)(a) of that Act. 9 On 20 January 2021, pursuant to s 65(1)(b) of the Migration Act, a delegate of the Minister refused to grant LPSP a Protection visa on the basis that LPSP did not satisfy the criterion in s 36(1C)(b) of that Act. The delegate informed LPSP that: This application was refused because you did not satisfy subsection 36(1C) of the Migration Act 1958 (the Act). That provision requires that you are not a person whom the Minister considers, on reasonable grounds: a. is a danger to Australia's security; or b. having been convicted by a final judgment of a particularly serious crime is a danger to the Australian community. You have been convicted of a particularly serious crime and the Minister considers that you are a danger to the Australian community. Therefore you do not satisfy this provision. The delegate further informed LPSP that "[t]he Department cannot consider your visa application any further. However, you are entitled to apply to the [Tribunal] for a merits review of the decision". 10 On 25 January 2021, LPSP applied to the Tribunal for a review of this decision. In a Statement of Facts, Issues and Contentions filed in the Tribunal, LPSP submitted that: The Tribunal should find that, while [he] has been convicted by a final judgment of a particularly serious crime, he is not a danger to the Australian community in the relevant sense. 11 Prior to the first directions hearing by the Tribunal on 12 February 2021, the decision-maker whose decision was under review lodged the documents in the decision-maker's possession or control ("T Documents") in conformity with s 37 of the AAT Act. The T Documents included a report prepared by a consultant forensic psychiatrist (Dr N Zimmerman) dated 23 June 2020 (First Zimmerman Report). 12 On 12 February 2021 the Tribunal fixed substantive hearing for 9 and 10 June 2021 and made directions (including with respect to evidence) to ready the matter for the hearing on those dates. 13 In conformity with the Tribunal's 12 February 2021 directions, LPSP lodged a Statement of Facts, Issues and Contentions dated 6 April 2021 (LPSP's SOFIC) in the Tribunal and with the Minister. Reference was made in LPSP's SOFIC to the First Zimmerman Report. Critically for the events that followed, LPSP's SOFIC [at 37] stated that "at the outset it should be noted that further submissions will be made on risk once a supplementary report is received from Dr Zimmerman (in addition to that already contained at T27 … )" (that is, the First Zimmerman Report). 14 At [127] of the Minister's Statement of Facts, Issues and Contentions dated 10 May 2021 (Minister's SOFIC), the Minister responded that: The Applicant's Statement of Facts, Issues and Contentions dated 6 April 2021 indicates that a further report from Dr Zimmerman will be produced as evidence in these proceedings. The Respondent reserves the right to seek to make submissions in relation to that report and any other evidence, and to seek its own independent medical opinion in response to Dr Zimmerman's report, if it considers it appropriate in order to best assist the Tribunal. 15 On 7 June 2021 (two days before the scheduled hearing) LPSP lodged a further psychiatric report by Dr Zimmerman dated 6 June 2021 (Second Zimmerman Report). Besides updating some of the matters discussed in the First Zimmerman Report, the Second Zimmerman Report set out Dr Zimmerman's opinion as to whether LPSP "present[s] a danger to the Australian community" and provided a further assessment of LPSP's risk of reoffending. The Second Zimmerman Report was evidently intended to support the case LPSP proposed to make to the Tribunal. 16 On 7 June 2021, shortly after receiving the Second Zimmerman Report, the Minister applied to the Tribunal for an adjournment of the hearing scheduled for 9 and 10 June, in order that the Minister could obtain an opinion from another psychiatrist. The Tribunal adjourned the substantive hearing on that day, but the matter was listed for a further hearing on 10 June 2021 to address evidentiary issues. LPSP's representatives subsequently notified the Minister's solicitors that LPSP did not consent to attending a psychiatrist nominated by the Minister for psychiatric assessment. 17 On 9 June 2021, the Minister applied to the Tribunal for a direction that LPSP attend a consultation with the Minister's nominated consultant forensic psychiatrist (Dr Gosia Wojnarowska) to enable Dr Wojnarowska to prepare a report setting out her professional opinion about LPSP. On 9 and 10 June 2021, the Minister and LPSP filed written submissions regarding the Minister's application. The Tribunal heard the parties on 10 and 11 June 2021. At the conclusion of the hearing on 11 June 2021, the Tribunal made the Direction that the Minister sought: see [2] above. 18 The Direction was accompanied by notes in the following terms: NOTES TO DIRECTION 1. If you do not comply with a direction, the Tribunal will list the application for a directions hearing. You will be required to attend the directions hearing in person and explain why you have not complied with the direction. 2. The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975. If you are the Applicant and you fail to comply with a direction, you may also be asked to explain at the directions hearing why your application should not be dismissed. 3. If a party fails to comply with this direction, the Tribunal will not necessarily decide to adjourn, or delay the listing of, an alternative dispute resolution process or hearing. 4. Where the Tribunal has the power to award or recommend the payment of costs, failure by a party to comply with this direction may be taken into account in making a decision relating to costs. 5. If you do not believe you will be able to comply with a timeframe or any other aspect of this direction, you must apply to the Tribunal for an extension of time to comply or a variation of the direction. You must seek the views of the other party before making such an application, and advise the Tribunal of the other party's views. You should make the application well before the date by which you are required to comply with the direction. 6. If you have been directed to give the Tribunal a Hearing Certificate, in accordance with the General Practice Direction, the Tribunal may list your application for hearing without further consultation if you do not provide the Hearing Certificate by the specified date. 19 LPSP applied to this Court for judicial review of the decision to make the Direction on 18 June 2021. The three grounds of his application were as follows: 1. The decision was not authorised by the enactment in pursuance of which it was purported to be made. Particulars a. By the decision, the Tribunal purported to make a direction compelling a person (the Applicant) to attend and participate in a medical examination - relevantly here, a psychiatric consultation - to which he did not consent conducted with a medical practitioner chosen by another party (a compulsory medical examination direction). b. The decision was purported to be made pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). c. Section 33(2) of the AAT Act relevantly authorises the giving of directions in certain circumstances 'as to the procedure to be followed in connection with the hearing of a proceeding before the Tribunal', non-exhaustive examples of which are provided in s 33(3). Those examples do not include, and cannot be interpreted to include, a direction requiring a person to undergo a compulsory medical examination. d. The power in s 33(2) is a generally worded power directed to procedure, which is insufficiently clearly worded to authorise a compulsory medical examination direction, such a direction interfering with fundamental common law rights and freedoms (including the right to privacy), and the general system of law. e. Accordingly, s 33(2) did not authorise the direction in the present case. f. No other sub-provision of s 33 authorised the direction in the present case. g. The decision to make the direction is amenable to review on this ground by reason of s 5(1)(c) or (d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or, alternatively, s 39B of the Judiciary Act 1903 (Cth). 2. In the alternative to (1), if the Tribunal had the power to make a compulsory medical examination direction, the decision to make such a direction in the present case was unreasonable. Particulars a. In deciding whether to make a direction pursuant to s 33 of the AAT Act the Tribunal's power was limited by a condition of reasonableness. b. The Tribunal's power fell to be exercised in the particular circumstances of the Applicant's case, including that: i. There was already adequate evidence before the Tribunal to allow it to decide the issues the subject of the review, including two reports by a forensic psychiatrist who it was proposed would give evidence at the final hearing; ii. The direction sought, and ultimately made, was uncertain in its scope (as to which see the matters in paragraph (b) to ground 3 below); iii. The making of the direction could reasonably have been expected to delay the final hearing of the matter (in the order of 6 weeks); iv. The making of the direction could reasonably have been expected to prolong the Applicant's detention; v. The making of the direction could reasonably have been expected to interfere with the Applicant's privacy; vi. The making of the direction could reasonably have been expected to interfere with the Applicant's privilege against self-incrimination; vii. The making of the direction could reasonably have been expected to interfere with the Applicant's right to silence; and/or viii. The making of the direction could reasonably have been expected to cause stress, anxiety and other harm to the Applicant. c. In the circumstances of the Applicant's case, including those above at (b), it was unreasonable for the Tribunal to decide to make the direction. d. The decision to make the direction is amenable to review on this ground by reason of s 5(1)(e) and (2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or, alternatively, s 39B of the Judiciary Act 1903 (Cth). 3. In the alternative to (1), if the Tribunal had the power to make a compulsory medical examination direction, the decision to make such a direction in the present case was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. Particulars a. In deciding whether to make a direction pursuant to s 33 of the AAT Act the Tribunal's power was limited by a condition of certainty, whether as a component of reasonableness or as an independent condition. b. The direction was uncertain as it not did describe, in terms or otherwise, the duration of the forensic psychiatric consultation the Applicant was required to attend; the mode of the forensic psychiatric consultation the Applicant was required to attend; the questions that the Applicant would be required to answer in the forensic psychiatric consultation or, alternatively, the topics upon which the Applicant would be required to answer questions in the forensic psychiatric consultation. c. The decision to make the direction is amenable to review on this ground by reason of s 5(1)(e) and (2)(h) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or, alternatively, s 39B of the Judiciary Act 1903 (Cth). 20 The primary judge upheld ground one only, and ordered that the Direction be set aside on this basis alone. The Minister's appeal thus focuses on his Honour's acceptance of this ground of LPSP's originating application for judicial review. Since the primary judge rejected grounds two and three, and LPSP did not seek to re-agitate either ground by way of a notice of contention, there is no occasion to discuss these grounds further.

THE DECISION OF THE PRIMARY JUDGE ON GROUND ONE 21 The primary judge held that neither the Migration Act nor the AAT Act empowered the Tribunal to make the Direction, and rejected the Minister's submission that it did not have a coercive effect: PJ, [27], [29]-[31]. His Honour held that an order or direction of a court or tribunal that would interfere with a fundamental right required specific statutory authority: PJ, [12], [16]. In reaching this conclusion, the primary judge cited S v S [1972] AC 24; Furesh v Schor [2013] WASCA 231; 45 WAR 546; Hastwell v Kott Gunning (No 5) [2020] FCA 621; and Nursing and Midwifery Board of Australia v HSK [2019] QCA 144; [2019] 1 QR 600. His Honour explained (PJ, [17]-[18]) that: Although the present matter concerns the powers of the Tribunal under the Act, in my view, there is no compelling reason to depart from the principle expressed in HSK or Hastwell. Whether the principle identified is an application of the principle of legality or better understood as a narrower principle of statutory construction specific to the interpretation of powers of courts and tribunals is of little moment. For those reasons and contrary to the Minister's contention, I regard the principle applied in Hastwell and HSK as being applicable to the construction exercise herein raised. In that regard I do not accept the Minister's submission that the Direction involves no infringement of the applicant's fundamental right to not disclose personal and private information. 22 The primary judge held that the power to issue directions under s 33 of the AAT Act was limited to procedural directions, and that a direction that compelled interference with the liberty of an individual was not a procedural direction: PJ, [21]-[22]. His Honour rejected the Minister's submission that the Direction fell within s 33(2A)(a) of the AAT Act, and opined that the AAT Act allowed for other means for the Tribunal to ensure that "justice between the parties is achieved in the circumstances at hand": PJ, [23]-[24].

Ground of appeal 23 The Minister appeals from the judgment of the primary judge on the sole ground that: The primary judge erred in concluding that the [Tribunal] was not empowered by s 33(2) of the Administrative Appeals Tribunal Act 1975 (Cth) to make the direction dated 11 June 2021, and ought to have concluded that the [Tribunal] was empowered to make the direction.

The Minister's submissions 24 In written submissions, the Minister contended that the appeal raised two issues. The first was whether s 33 of the AAT Act empowered the Tribunal to make the Direction. The second was whether the Direction "necessarily interfered with, or derogated from" LPSP's common law rights in so far as it required him to "attend and participate" against his will in a consultation with a forensic psychiatrist selected by the Minister. 25 Referencing s 2A of the AAT Act and Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286, the Minister submitted that Parliament intended that s 33 of the AAT Act would have a broad application. At the hearing, the Minister argued that the powers of the Tribunal under s 33(2) of the AAT Act should not be read more narrowly than the powers of a court over the conduct of proceedings, especially having regard to the parties' obligation in s 33(1AB) of the AAT Act. Mr Horan KC, appearing for the Minister at the hearing, submitted at one point that: [I]f the Tribunal forms a view that ... a party should be ordered to do something in order to fulfil that obligation that is, essentially, an order which relates to the procedure to be followed at or in connection with the hearing. Acknowledging that principles respecting the privilege against self-incrimination, legal professional privilege and "possibly" against mandated medical examination continued to apply in Tribunal proceedings, he argued that these principles should "not [be] subsumed under some overarching principle that the Tribunal has to step around". 26 In written submission, the Minister argued that s 33(2A) of the AAT Act showed that s 33 "was intended to authorise directions requiring a party to do things to assist the proper resolution of the proceeding even if it does not suit the party to do so". The Minister submitted that the non-exhaustive terms of s 33(2A), and in particular s 33(2A)(a), (d), (e) and (f), indicated that the Tribunal had power to make a broad range of different directions, including directions regarding evidence and the provision of further information. The Minister contended that a party's failure to comply with their obligations in s 33(1AB) of the AAT Act would "enliven the Tribunal's power to control its procedure by making a direction that will enable it to obtain relevant evidence and enable it to make the correct and preferable decision". 27 The Minister submitted in writing that since LPSP had participated in consultations with his own psychiatrist in order to adduce evidence, the objectives set out in s 2A of the AAT Act were best achieved by recognising the Tribunal's power to make directions to: (a) ensure that the Tribunal has before it all relevant evidence it needs to make the correct and preferable decision on the review, and (b) promote fairness between the parties. Further, so the Minister submitted, a proceeding before the Tribunal was based on the principle that "the correct or preferable decision is reached by opposing interests presenting their cases fully and fairly". The Minister added: That involves each party having the opportunity to test and rebut evidence adduced by the other. That procedural fairness might also be afforded by the Tribunal using alternate means ... does not negate the construction of the provision the Minister advances. Referring to MDCT and the National Disability Insurance Agency [2020] AATA 6036, the Minister submitted that the Direction should be understood as a direction "about a procedure to be adopted to enable relevant evidence to be obtained, and to allow a party before the Tribunal a proper opportunity to respond to the case advanced by the other party". 28 Citing Grant v BHP Coal Pty Ltd [2017] FCAFC 42; 247 FCR 295 at [87], the Minister accepted that a person's right to personal liberty would be infringed by a requirement to undergo a medical examination. The Minister contended in writing that the Direction did not require LPSP to undergo such an examination because it required "no more than" LPSP "attend and participate" in a consultation with Dr Wojnarowska for the purpose of Dr Wojnarowska preparing a report. The Minister submitted that this Direction did not involve a deprivation of liberty because the consultation might have occurred via electronic means. Nor did the Direction require LPSP to disclose his personal information since LPSP had already disclosed that information to Dr Zimmerman, with the consequence that "any such or related information ... could not be said to be 'personal and private' for the purposes of these proceedings". 29 Whist the Minister did not contest the authority of a number of the cases to which the primary judge referred, the Minister argued that a number of them should be distinguished on the basis that the consultation with Dr Wojnarowska would not involve physical interference with the person of LPSP. In this context, the Minister referred to Grant, Starr v National Coal Board [1977] 1 All ER 243 at 249 (cited in Grant), Furesh v Schor and S v S. The Minister submitted that Jackson J was in error in Hastwell to the extent that his Honour held to the contrary. 30 In writing, the Minister also submitted that the Tribunal was unable "to force" LPSP to attend a consultation with Dr Wojnarowska because the Tribunal had no coercive powers of the relevant kind. Relying on Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; 161 CLR 98, the Minister maintained that s 63(2) of the AAT Act did not empower the Tribunal to enforce its directions with a finding of contempt: rather, this provision created a criminal offence. The Minister submitted that, when LPSP failed to comply with the Direction, the Tribunal had a discretion to dismiss his application under s 42A(5) of the AAT Act as a "last resort". In this context, the Minster cited Guse v Comcare [1997] FCA 961; 49 ALD 288 at 291; affirmed in [1997] FCA 1406; 47 ALD 495. 31 At the hearing of the appeal, Mr Horan KC submitted that the Direction was "in one sense ... really, the first step in the case management which will lead to ... the Tribunal having to say, '[w]ell, what happens if you don't fulfil this requirement?'". There were, so he submitted, various courses open to the Tribunal in the event of non-compliance; and that the Tribunal "must at least have power to stay or dismiss proceedings if certain steps are not done by parties with an obligation to use their best endeavours to fulfil the objectives" of the AAT Act. 32 Senior counsel for the Minister submitted that, in the event of non-compliance with the Direction, the Tribunal would have the power to stay the matter by a direction under s 33 of the AAT Act. He contended that the principle in Grant, Furesh v Schor and S v S did not preclude making a consequential procedural order of this kind in this context as there was no compulsion to attend a medical assessment. He contended that the authorities established that there was no need for specific statutory authority to empower a court to stay or dismiss a proceeding in response to a refusal to submit to medical examination. He further submitted that there was: ... no reason why the Tribunal under section 33 and combined with section 42A should not be in the same position as a court, and that the principle that specific statutory authority is required has never been applied to constrain procedural powers to manage the conduct of a proceeding to ensure fairness and to ensure the proper discharge of the court or tribunal's function. 33 Senior counsel for the Minister submitted that the Direction was within the Tribunal's power because it was procedural in nature, and therefore within the power conferred by s 33 of the AAT Act. His argument in support of this proposition was not straightforward. 34 First, on one view, senior counsel's argument involved a submission that because the probable consequences of non-compliance with the Direction were likely to be the making of a new procedural direction staying or dismissing the proceeding, then the Direction itself should also be characterised as procedural. The argument at this last point was unclear. The argument was either that the Direction necessarily had the same character as the responsive stay or dismissal or the Direction was not in terms coercive. On either basis, his submission was that the Direction was procedural. 35 Second, the senior counsel's argument might simply have been that the Direction was procedural in nature because it was not in terms coercive. At various points at the hearing, senior counsel for the Minister invited the Court to construe the Direction as one framed "more closely in terms of the procedural powers that are recognised in Hastwell". Senior counsel observed there would be no "interference with rights [where] an order is made that gives a choice to the applicant whether ... to do the thing that they're being asked to do". He maintained that since the Tribunal had power to direct that, unless LPSP attended and participated in a consultation with the Minister's selected psychiatrist, the proceeding would be stayed or dismissed, then the Court should construe the Direction to operate in this way. 36 Mr Horan KC argued that in substance all that the Tribunal had done by making the Direction was inform LPSP "unless you make yourself available for this consultation with the respondent's independent expert, then you are at risk of having these orders made against you". He conceded, however, that the Direction did not confine itself to these procedural consequences, but also exposed LPSP to "the criminal offence of contempt of the tribunal for non-compliance". He acknowledged that exposure to a criminal penalty "might be a reason why… the court might conclude" that the Direction was beyond power, but contended that, practically speaking, the risk of being charged or convicted with contempt was so low as not to constitute coercion. Senior counsel also submitted that the Direction in terms did not require LPSP to "answer any or all questions" the Minister's chosen psychiatrist might ask of him, "let alone answer them truthfully or in a particular manner". In substance, while senior counsel accepted that LPSP was under some kind of practical compulsion in a consultation with Dr Wojnarowska, his submission was that the Direction did not require an interview involving "any coercive extraction of information". 37 Third, the argument might be that because the probable consequences of non-compliance with the Direction were likely to be the making of procedural directions and the terms of the Direction were not directly coercive, then the Direction should be characterised as procedural. 38 Fourth, each of these different ways of understanding the Minister's argument may viewed as alternatives to the one submission. For the reasons stated below, the outcome is the same however the argument is conceived. 39 Regarding LPSP's principle of legality argument, Mr Horan KC submitted that this argument was overly broad, referencing Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196. Senior counsel argued that it "would effectively constrain the Tribunal's procedural powers by reference to a wide range of asserted rights and freedoms that might potentially fall within or attract the principle of legality". He referred to various cases, including Hastwell and MDCT. He emphasised that HSK concerned a different tribunal to which different legislation applied and submitted HSK should be distinguished or not followed. 40 For convenience, we note at this point that the reference to the decision of the Tribunal in MDCT was of no assistance. The decision under review in MDCT was a decision of the National Disability Insurance Agency under the National Disability Insurance Scheme Act 2013 (Cth). The decision did not concern a power to direct a psychiatric assessment. The decision concerned an application by the Agency for a direction to require the applicant to give access to the applicant's home in order that an occupational therapist could assess it. Further, as Mr Horan KC conceded at the hearing, neither party in MDCT argued that the Tribunal did not have the power to make the direction. This decision turned on different issues in a different context to this case. The decision in MDCT does not fall for consideration by the Court on this appeal and does not provide any guidance.

LPSP's submissions 41 LPSP's primary contention was that s 33 of the AAT Act was to be construed by reference to the principle of legality. This meant that the Act was to be interpreted by reference to the "working hypothesis" that legislation will not be understood as authorising an interference with a fundamental common law right or freedom unless this is clearly expressed. LPSP noted that there was no dispute in this case about the existence of the fundamental common law right to privacy (relevantly, the right not to disclose personal and private information) and the common law right not to undergo a non-consensual medical examination. Relying on Hastwell and HSK, LPSP argued that the fundamental right with respect to medical examination included a psychiatric examination. 42 LPSP relied on HSK and Colquhoun v Capitol Radiology Pty Ltd [2013] VSCA 58; 39 VR 296 for the proposition that neither s 33 nor any other provision of the AAT Act clearly showed an intention to authorise a requirement that a party submit to a medical examination in the nature of a psychiatric assessment. LPSP submitted that, according to established principle, the Court should follow HSK since it was a decision of an intermediate appellate court about substantially similar legislation to s 33 of the AAT Act. LPSP also submitted that this outcome was consistent with Grant. 43 In written submissions, LPSP further contended that the text, context and purpose of s 33 of the AAT Act compelled the conclusion that s 33 did not authorise the making of directions that would interfere with the fundamental rights at issue. LPSP submitted that, consistently with accepted principle and HSK, the Court would not readily construe the power in s 33(2) to make directions with respect to procedure so as to include a power to make a direction inconsistent with a party's fundamental right (not to be subject to a compulsory medical examination) simply because "it might conceivabl[y] think [this] would assist it to make the correct or preferable decision". LPSP submitted that the Minister's contrary construction was inconsistent with express limitations in the AAT Act. 44 At the hearing, senior counsel for LPSP, Mr Wood SC, accepted that it was unnecessary for the determination of this appeal to explore the application of the principle of legality in the Tribunal context generally, because the case could be determined by reference to the specific context in which the relevant issue arose. He referred to the authorities concerning medical examinations, including Furesh v Schor, S v S, Lane v Willis [1972] 1 WLR 326, Hastwell, HSK and Washington v Washington [2018] SASC 102. He submitted that the touchstone for the common law principle was not confined to "tortious interference in the sense of assault, but at least one of the touchstones is interference with privacy or liberty". 45 Senior counsel submitted that the authorities showed that there was a need for clear statutory authority to support a requirement that an individual submit to medical examination, including psychiatric examination. Referring to HSK, he submitted that there was little to support the Minister's argument that a party's "best endeavours" obligation under the AAT Act ought to be seen as requiring a party to submit to a medical examination, whether in the nature of trespass to the person or an invasion of personal privacy or liberty. 46 LPSP contended that s 427(1)(d) of the Migration Act (which specifically conferred a power with respect to medical examinations including in a Tribunal review under Part 7 of that Act) indicated that Parliament did not intend the Tribunal to have such a power in the present case. LPSP also contended that the need for the Tribunal to act fairly did not provide a foundation for an implication that s 33 of the AAT Act should be construed as authorising an interference with a party's fundamental rights, because, as the Minister accepted, there were various other choices open to the Tribunal to ensure procedural fairness. 47 At the hearing of the appeal, Mr Wood SC directed the Court's attention specifically to s 60 of the Migration Act, as a specific example of a circumstance in which Parliament thought it appropriate to authorise interference with a common law right by a primary decision-maker "because of the nature of the decision being made", and where by virtue of s 43(1) of the AAT Act, it was open to the Tribunal also to exercise the same power. There was, he noted, no equivalent provision in this case. He submitted there was nothing in the nature of the Tribunal's review under the AAT Act that required the power to direct a medical examination in this kind of case. He submitted that Parliament had made a careful choice to confer power on the Tribunal to interfere with common law rights in some limited circumstances and this militated against the possibility that such a power existed in the present case. (In reply, Mr Horan KC, for the Minister, submitted that, correctly construed, s 60 was not a power to compel medical examination, because it was subject to a requirement to exercise "reasonable endeavours".) 48 LPSP submitted that the Direction plainly purported to interfere with LPSP's right to privacy. This was because, in light of the issues raised in the review, the requirement to participate in a consultation for the purpose of Dr Wojnarowska's expert report would necessarily extend, as in Hastwell, to requiring LPSP to answer questions of a personal and sensitive kind. LPSP submitted that the rights in issue were not waived "once a person discloses other information in another context or voluntarily agrees to attend another appointment with a different medical practitioner". At the hearing of the appeal, senior counsel for LPSP submitted that there was, in any event, no basis to assume that the information elicited by Dr Wojnarowska would be confined to that which LPSP had already given to his own psychiatrist. 49 Further, at the hearing, senior counsel for LPSP repudiated the Minister's suggestion that the Direction did not require LPSP to answer questions in a way apt to invade LPSP's privacy. Senior counsel drew attention to the Direction's mandatory language. He submitted that it was clear that when the Minister applied to the Tribunal for the Direction to be made, the Minister was seeking a direction that would require LPSP to answer the questions put to him by a psychiatrist for a purpose, being the formulation of an expert opinion bearing on whether or not he's a danger to the community, in particular, risk of recidivism. 50 Neither party disputed that, as the primary judge held, any such requirement would be subject to the privilege against self-incrimination and legal professional privilege: see PJ at [48]. Senior counsel for LPSP submitted, however, that if LPSP failed to answer a question addressed to him by Dr Wojnarowska, then LPSP would be "vulnerable to having his application dismissed" under s 42A(5) of the AAT Act. 51 LPSP argued that the consequences of non-compliance with a direction under s 33 of the AAT Act indicated that such a direction had a coercive effect. This was because deliberate non-compliance with a direction under s 33 would expose a person to a criminal liability under s 63 of the AAT Act. LPSP submitted that the primary judge correctly characterised the Direction as "having a sufficient coercive effect so as to engage the principle of legality". LPSP further submitted that: [A] failure to comply with a direction given under s 33 may also expose a party to the risk of dismissal (rather than determination on the merits) of his or her application of review under s 42A(5)(b). LPSP contended that the possibility of dismissal for failure to comply with a s 33 direction was another reason why s 33 would interfere with fundamental rights if the Minister's construction of this provision were accepted. 52 At the hearing of the appeal, Mr Wood SC also submitted that it was unnecessary for the Court to determine whether the Tribunal had the power under the AAT Act to stay the review proceeding, since this is not what the Tribunal directed. Further, the grant of a stay or adjournment would not require "a direction for the person to attend the medical examination in order for the power to be exercised". He also submitted that no issue as to the exercise of s 42A(5) of the AAT Act arose because that power had not been exercised.

CONSIDERATION 53 The issue raised by this appeal is essentially one of statutory construction. The focus is the AAT Act, the salient provisions of which are set out below. 54 The Tribunal is established by s 5 of the AAT Act. It is an administrative merits review body: see AAT Act, s 25. Its objective is set out in s 2A as follows: In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that: (a) is accessible; and (b) is fair, just, economical, informal and quick; and (c) proportionate to the importance and complexity of the matter; and (d) promotes public trust and confidence in the decision-making of the Tribunal. 55 The AAT Act, the general law, and, in some cases, other legislation govern its procedures. Much of the argument in this case turned on s 33 of the AAT Act, which relevantly provides: Procedure of Tribunal (1) In a proceeding before the Tribunal: (a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal; (b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. Decision-maker must assist Tribunal (1AA) In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding. Parties etc. must assist Tribunal (1AB) A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A. Directions hearing (1A) The President or an authorised member may hold a directions hearing in relation to a proceeding. Who may give directions (2) For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given: (a) where the hearing of the proceeding has not commenced - by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and (b) where the hearing of the proceeding has commenced - by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions. Types of directions (2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may: (a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or (b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or (c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or (d) limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or (e) require witnesses to give evidence at the same time; or (f) limit the time for giving evidence or making oral submissions; or (g) limit the length of written submissions. 56 There were also a number of other provisions referred to in argument, including ss 42A and 63 of the AAT Act. 57 Section 42A of the AAT Act sets out the bases that would permit the Tribunal in the exercise of discretion to dismiss, discontinue or reinstate an application for review. In particular, s 42A(5) provides as follows: Dismissal if applicant fails to proceed or fails to comply with Tribunal's direction (5) If an applicant for review of a decision fails within reasonable time: (a) to proceed with the application; or (b) to comply with a direction by the tribunal in relation to the application; the Tribunal may dismiss the application without proceeding to review the decision. 58 Section 63 of the AAT Act makes provision for an offence of contempt of the Tribunal. Section 63 provides as follows: Contempt of Tribunal (1) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct obstructs or hinders the Tribunal or a member in the performance of the functions of the Tribunal. Penalty: Imprisonment for 12 months or 60 penalty units, or both. (2) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct would, if the Tribunal were a court of record, constitute a contempt of that court. Penalty: Imprisonment for 12 months or 60 penalty units, or both. 59 The AAT Act does not identify the particular decisions that may be subject to review by the Tribunal. Other Commonwealth enactments do this: see AAT Act, s 25. These other enactments may also contain provisions conferring specific procedural powers on a primary decision-maker with respect to a particular kind of decision. By virtue of s 43(1) of the AAT Act, such powers may also be exercisable by the Tribunal on review. In this case, however, the only question is whether s 33 of the AAT Act conferred power on the Tribunal to make the Direction, there being no suggestion that any other provision might also, or alternatively, have conferred such power.

Character of the Direction 60 As will be seen, the Minister and LPSP disagreed about whether the Direction was coercive in nature. It is useful to deal with this issue first, before discussing the scope of the power conferred by s 33. 61 As the Minister noted, the notes accompanying the Direction indicated that there would be a directions hearing in the event of non-compliance: see [18]. This said little, however, about the character of the Direction itself, assuming that it was validly made. The terms of the Direction showed that its purpose was to compel LPSP to attend and participate in a consultation with Dr Wojnarowska. Indeed, this was why the Minister had sought the Direction in the first place, that is, to address LPSP's opposition to assessment by a psychiatrist chosen by the Minister. Furthermore, ss 42A(5) and 63 of the AAT Act establish that non-compliance with a direction under s 33 of the AAT Act may have significantly adverse consequences for a non-complying party. 62 The Minister and LPSP accepted that deliberate non-compliance with a direction made under s 33 would expose a person in default to potential criminal liability under s 63 of the AAT Act. If LPSP did not attend the scheduled consultation with the Minister's psychiatrist, then, assuming the Direction was valid, he may be exposed to such criminal liability. Furthermore, according to the Direction, LPSP had not only to attend the consultation but also to participate in it. As a result, any lack of co-operation on his part during the consultation could also expose him to criminal liability under s 63. Exposure to criminal liability under s 63 clearly gave the Direction a coercive character, irrespective of how likely it might be that a charge might be brought, or a conviction recorded. 63 There was also the possibility that the Tribunal would dismiss LPSP's review application under s 42A(5) if he failed to comply with the Direction. This possibility also gave a coercive character to the Direction. As a practical matter, this was especially so in LPSP's case, given the circumstances outlined above and where the decision under review was the refusal of a protection visa: see [5]-[9]. 64 Accordingly, we would reject the Minister's submissions to the effect that the Direction had no coercive effect. Even if non-compliance with the Direction might have led to another kind of direction, this other direction is not the subject of this appeal. That some other direction might have been made at some later date does not determine the character of the Direction in fact made in this case. 65 Given the consequence of this conclusion for the construction of s 33 of the AAT Act discussed below, whether the Direction is classified as procedural or not is beside the point.

Construction of section 33 66 Plainly enough, s 33 of the AAT Act does not expressly empower the Tribunal to direct an individual to attend and participate in a consultation with a psychiatrist, in order that the psychiatrist prepare a report relevant to an issue arising on review. The power to make such a direction might be implied from the text, context and purpose of the AAT Act, but for the principle of legality to which we shall turn shortly. 67 The factors supporting such an implication might include: the expressly non-exhaustive character of s 33(2A); the discretion conferred by s 33(2A)(a) to require a party to a proceeding to provide further information in relation to the proceeding; a party's duty under s 33(1AB) to use the party's best endeavours to assist the Tribunal to fulfil the objective in section 2A, including to promote a "fair, just, economical, informal and quick" mechanism of review; and the Tribunal's duty under s 43 of the AAT Act to make a decision on review that is correct or preferable on the material before it: see, for example, Shi at [98], [144]. 68 The Direction was not, however, simply a direction about a procedure to be adopted to enable relevant evidence to be obtained and to allow a party before the Tribunal a proper opportunity to respond to the case advanced by the other party, as the Minister submitted. The Direction involved an interference with LPSP's personal liberty and autonomy. As Boddice J said in HSK at [32], with respect to the Queensland Civil and Administrative Tribunal (QCAT): A power to compel an interference with the liberty of an individual litigant is not generally considered necessary for the speedy and fair conduct of a proceeding. HSK is discussed further below. 69 As we have seen, LPSP relied on the principle of legality to argue that the Court should not construe s 33 of the AAT Act as conferring the power on the Tribunal to make the Direction, because the Direction would interfere with his fundamental common law freedoms. The principle of legality requires that a legislative intention to diminish a fundamental common law right, freedom, or immunity, or to depart from the general system of law, must be clearly expressed, by "unmistakable and unambiguous language": Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437. There is no doubt about the principle: see further X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at 153; Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; 221 CLR 309 at [21]; and North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 at [11] et seq. As Mason CJ, Brennan, Gaudron and McHugh JJ stated in Coco at 437: The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights. (Citations omitted) 70 This principle of construction has been part of Australian law for a long time, as reference to Potter v Minahan (1908) 7 CLR 277 at 309 shows. The principle militates in favour of a construction that avoids encroachment on fundamental common law rights, freedoms and interests if such a construction is open. Such a construction is evidently open in this case. 71 There is also no need to explore whether the principle of legality is capable of being engaged in the present context. There is ample authority that a requirement that a person submit to a medical assessment or test against their will involves an interference with fundamental common law freedoms. For this reason, in conformity with the principle of legality, in the absence of clear legislative authorisation, Australian courts will not construe a generally expressed provision, such as s 33 of the AAT Act, as conferring power to make an order or direction requiring a competent person to undergo a medical examination against their will. See, for example, Furesh v Schor; Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15, 175 CLR 218 (Marion's Case); Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council (2009) 230 FLR 336; Washington v Washington; and HSK. 72 The Direction mandated a medical (psychiatric) assessment and involved an interference with LPSP's personal liberty and autonomy. I interpolate here that many have written about the distinction between personal liberty and autonomy. For example, in Two Concepts of Liberty, Sir Isaiah Berlin drew a distinction between "negative freedom" (liberty) - being the freedom from interference from another person or body; and "positive freedom" (autonomy) - being the freedom of the individual to be "his own master". See Isaiah Berlin, "Two Concepts of Liberty" in Four Essays on Liberty (Oxford University Press, 1969): 118-173, at 121-134. It suffices to say here that, as the following discussion shows, the authorities indicate that, via the principle of legality, the common law is concerned to protect both forms of freedom. 73 Thus, in Furesh v Schor, the Western Australian Court of Appeal held that it did not have inherent power to order a party to civil proceedings to submit to a mouth swab for DNA analysis against their will. Pullin JA in separate reasons recognised (at [4]) that: The principles which may appear to clash are as follows: (a) On the one hand, in the administration of justice, courts determine civil disputes by receiving evidence. [] (b) On the other hand, the common law respects and preserves the autonomy of adult persons of sound mind with respect to their body. The common law accepts that a person has rights of control and self-determination in respect of his or her body which other persons must respect. Those rights can only be altered with the consent of the person concerned. In his Honour's analysis, the second of these principles prevailed. 74 The parties' arguments in this appeal reflected a similar tension between analogous principles. On the one hand, the Minister argued the Tribunal needed to reach the correct or preferable decision by reference to the material before it, which should include the report of a psychiatrist nominated by the Minister. On the other hand, LPSP argued that the common law was protective of individual liberty and autonomy and required clear legislative authority to authorise their curtailment. 75 Also in Furesh v Schor, in each of their separate reasons, Newnes and Murphy JJA referred to Marion's Case (and S v S) in support of the proposition that, in the absence of legislation clearly conferring the power to order a party to civil proceedings to submit to a medical assessment or test, no such order could lawfully be made. 76 Likewise, in Washington v Washington, Parker J held (at [151]) that the South Australian Supreme Court had no inherent power to compel a party to undergo a medical examination to provide evidence in civil proceedings. In these circumstances, his Honour observed: The inherent power of the Court is limited to the grant of a stay if a plaintiff refuses to undergo medical examination. The grant of a stay serves to protect the process of the Court from abuse, and therefore it involves the inherent powers in the narrow sense. We return to the matter of a stay below. 77 In Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council (2009) 230 FLR 336, the New South Wales Court of Appeal held that a statutory power to require a worker to submit to a medical examination if required by his employer for one purpose did not permit the employer to require a worker to submit to medical examination for a different purpose. 78 In Colquhoun v Capital Radiology, in the course of considering the obligation of a statutory medical panel to give reasons, the Victorian Court of Appeal observed that, but for the specific statutory conferral of the power on the panel to require a claimant for damages for non-economic loss to submit to a medical examination, it would not have been open to the panel convenor to "purport (in the exercise of power to give procedural directions) to confer such power". The Court's observation is consistent with the decisions of other Australian courts. 79 More recently, in HSK, the Queensland Court of Appeal determined that it was not open to the QCAT (the State's administrative merits review body) to require HSK to undergo a health assessment to secure nursing registration. The appellant Board relied on the power conferred by s 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (Queensland Act) to give directions for the conduct of a review, to support the challenged direction. Boddice J, with whom Morrison and McMurdo JJA agreed, characterised the power conferred by s 62 as a broad, procedural one, to be exercised for the speedy and fair conduct of a proceeding: HSK at [29]. The Court held, however, that QCAT had correctly found that s 62 of the Queensland Act did not authorise a direction that HSK undergo a further health assessment as part of the review: see HSK, at [35]. Boddice J relevantly affirmed that "[a] direction requiring an interference with the liberty of an individual litigant has generally been viewed as requiring specific statutory authority", and that this was absent from the Queensland Act: see HSK at [34]. 80 In Grant, on the other hand, a Full Court of this Court reached the contrary conclusion after considering the text, context and purpose of the Coal Mining Safety and Health Act 1999 (Qld). The Court held that, as a matter of construction, the Act clearly expressed an intention to curtail coal workers' personal liberty to the extent that they could be required to attend medical examinations in certain circumstances. 81 In summary, before a court or tribunal in Australia can require person to undergo a medical examination against their will, the legislature must confer the power to do so in clear and unmistakable terms. This expression of the principle of legality is consistent with the decision of the High Court in Marion's Case. In that case, respecting the need for consent before a surgical procedure might be performed, McHugh J observed (at 309) that "the common law accepts that a person has rights of control and self-determination in respect of his or her body which other persons must respect". 82 The parties to this appeal did not direct the Court to any statutory provision expressly empowering the Tribunal to require a party to submit to a medical assessment against their will. As already noted, s 33 of the AAT Act does not expressly confer such a power. Consideration of the text, context and purpose of the AAT Act does not lead to the conclusion that that Act expresses a clear intention to authorise the Tribunal to curtail a party's personal liberty and autonomy by requiring him to attend a medical examination against his will. The AAT Act does not manifest an intention to do so by "unmistakable and unambiguous language": see Coco at 437. Having regard to the foregoing discussion, it would be an error to construe s 33 as conferring power on the Tribunal to do so. 83 In this context, there is no relevant difference between a physical medical assessment and a psychiatric medical assessment. A physical assessment may typically involve a greater degree of physical interference with the body than a psychiatric assessment, although this need not be so. 84 There was no specific evidence of what Dr Wojnarowska's psychiatric assessment of LPSP (as foreshadowed by the Direction) was likely to involve. It would, however, involve some interference with LPSP's personal liberty insofar as he would be required to make himself available at a particular time and date for the consultation to occur. Whether this was in-person or via electronic means is immaterial. His psychiatric assessment would also evidently involve a curtailment of his autonomy, that is, his freedom to choose if and to whom he would disclose otherwise private information about himself. As already stated, the common law protects both personal liberty and autonomy, that is, both negative and positive personal freedoms. 85 Australian courts have recognised that, so far as the principle of legality is concerned, there is no relevant difference between being required submit to a physical medical assessment and a psychiatric medical assessment: compare the decision of the English Court of Appeal in Lane v Willis. 86 In Hastwell, Jackson J proceeded on the basis that the principles concerning the power to order compulsory physical and psychiatric medical examinations were the same: compare Hastwell at [33]. A Full Court of this Court dismissed an appeal from his Honour's judgment: see Hastwell v Kott Gunning [2021] FCAFC 70. In Washington v Washington, Parker J adopted the same approach in upholding an appeal from the decision of a Master requiring a psychologist's assessment of a party against their will: see Washington v Washington at [137]. Most recently, the Queensland Court of Appeal in HSK also drew no distinction between a psychiatric and a physical medical assessment in construing s 62 of the Queensland Act by reference to the principle of legality. Section 62 of that Act was similar to s 33 of the AAT Act. 87 I note at this point that LPSP specifically submitted that this Court should follow HSK since this was a decision of an intermediate appellate court about much the same issue in connection with substantially similar legislation. Strictly speaking, even though HSK and the present appeal give rise to very similar issues, the rule as stated in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 does not in terms apply. This is because HSK concerned a State Act concerning a State tribunal. The State Act also differed from the Commonwealth AAT Act at various points. It may be, however, that Walker Corporation v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259 and R v Falzon [2018] HCA 29; 264 CLR 361 have widened this rule. Compare Attorney-General (Cth) v Ogawa [2020] FCAFC 180; 281 FCR 1; MNWA Pty Ltd v Deputy Commissioner of Taxation [2016] FCAFC 154; 250 FCR 381; and Parkin v Boral Limited (Class Closure) [2022] FCAFC 47; 291 FCR 116. As will be seen from the above discussion, it is unnecessary to delve into this question, because we would apply the same principles as the Queensland Court of Appeal in HSK, to reach a like conclusion.

The relevance of court practice of granting a stay in the event of non-conformity with orders 88 The Minister's case made much of the fact that, in the absence of a grant of legislative power to compel a person to submit to a medical examination, courts would order a stay of proceedings if an unreasonable refusal to submit to examination would result in practical injustice. We have already referred to Parker J's statement to this effect in Washington v Washington at [151]. There are numerous other instances of this: see, for example, Kurnell Passenger & Transport at [79] (Basten JA); [1] (Giles JA, agreeing); Furesh v Schor; and Hastwell at [34]-[37]. We note, however, that in Hastwell at [37], Jackson J attributed the power of the Federal Court to grant a stay to ss 23 and 37M(1) of the Federal Court of Australia Act 1976 (Cth). This indicates in our view that the proposition that the Tribunal has the power to grant a stay of a proceeding in a case like the present is open to serious doubt. It is, however, unnecessary to determine this question because the Tribunal has not purported to exercise any such power. As already indicated, the possibility that some other direction might have been made at some later date does not determine the validity of the Direction that was in fact made and is the subject of this appeal.

DISPOSITION 89 The Tribunal might have addressed the difficulty that arose because of LPSP's opposition to an assessment by a second psychiatrist chosen by the Minister other than by compelling LPSP to participate in a psychiatric assessment with Dr Wojnarowska. For instance, as the primary judge said at PJ [24], the Tribunal could have indicated that it would afford the second Zimmerman report limited weight because another psychiatrist had been unable to corroborate Dr Zimmerman's opinion and the Minister had limited capacity to test it without another expert's report. 90 As we have explained, we agree with the primary judge that the Tribunal did not have the power to make the Direction. Accordingly, we would dismiss the appeal. The Minister should pay the first respondent's costs of the appeal. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Kenny, Wigney and Rofe.