Construction of ss 89C and 93 of the HIA
42 The principles applicable to the construction of a statute, which require consideration of the text, context and purpose, are well established: see, in particular, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]; Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [25]-[26]; and SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14]. In R v A2 [2019] HCA 35; 269 CLR 507, the High Court has reiterated, at [33] per Kiefel CJ and Keane J (with whose reasons Nettle and Gordon JJ agreed) that:
Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
43 The primacy that is to be afforded to the text and structure of a statute, which is relevant to the present task of ascribing meaning to the text of ss 89C and 93, was explained by Allsop CJ in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; 282 FCR 1 at [4]-[5]:
… The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provisions are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material. [Citations omitted]
There can be no doubt that the search for principle in the High Court reveals a settled approach of some clarity: R v A2 [2019] HCA 35; 373 ALR 214 at 223-225 [31]-[37]. The notion that context and legitimate secondary material such as a second reading speech or an Explanatory Memorandum cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of High Court authority since 1985.
44 In relation to statutory purpose, French CJ and Hayne J emphasised in Certain Lloyd's Underwriters, at [25]:
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative "intention" is to use a metaphor. Use of that metaphor must not mislead. "[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have" (emphasis added). And as the plurality went on to say in Project Blue Sky:
Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
To similar effect, the majority in Lacey v A-G (Qld) said:
Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. (footnote omitted)
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
(Emphasis added.)
45 The question of construction is whether the Director can be found to have "made a referral" under s 89C(2)(c) prior to issuing the written instrument on 9 March 2018.
46 Section 89C(2) requires, by reason of the word "must", the Director to do one of three things after taking into account any submissions:
(a) decide to take no further action; or
(b) enter into a s 92 agreement with the person; or
(c) make a referral under s 93.
47 To decide to take no further action is an option for a Director under s 91. Such a "decision" may be made if the Director is satisfied that there are insufficient grounds on which a committee could reasonably find the person has engaged in inappropriate practice, or circumstances exist that would make a proper investigation impossible.
48 Entering into agreement pursuant to s 92 does not connote a "decision" having been made by the Director. Sections 92(1)(a)-(b) provide that a "person under review and the Director may enter into a written agreement under which the person under review acknowledges [he or she has] engaged in inappropriate practice" and specified action of the kind referred to in subsection (2) is to take effect. The voluntary and cooperative character of entering into agreement, as opposed to being the consequence of a decision, is demonstrated by s 92(6) which prohibits the Director from disclosing the content of any communications in relation to proposals for an agreement, or even whether any such communications have taken place.
49 Section 93 is permissive. By s 93(1) it provides that the Director may set up a committee in accordance with Div 4 and make a referral to it. There are two circumstances in which the Director might be asked to conduct a review which might lead to a referral: the first is on receipt of a request by the CEM, and the second arises from a request made by a committee under s 106J(1). The discretion conferred by s 93(1) relates to the second type of request. In such circumstances, the Director may make the referral to the committee who made the request, rather than "set up" a different committee in accordance with Div 4. That is the extent of the discretion. Where the Director has made a decision not to take no further action (s 89C(2)(a)), or has not entered into an agreement (s 89C(2)(b)), the Director must make a referral to a Committee under s 93 (s 89C(2)(c)). Within 7 days of making the referral, she must give a copy of the referral and report to the CEM and the person under review: s 93(7). Similarly, if after entering an agreement, the Determining Authority refuses to ratify the agreement, and before the end of three months, the Director has not made a decision under s 91 or a referral under s 93, the Director must make a referral: s 92A.
50 If the Director does not do one of the three things required by s 89C(2) before the end of 12 months after making the decision to review the provision of services, s 94(1) provides that "the Director is taken to have made a decision at the end of that period to take no further action in relation to the review" (emphasis added).
51 To the extent that s 94(1) informs the question of whether making a referral is a decision for the purposes of the statutory scheme, two possibilities emerge. One reading of s 94(1) might be said to support a construction that each of the actions available to the Director in subsections (a)-(c) are in themselves "decisions": either to take no further action; to enter into an agreement; or to make a referral. This construction is supported by the use of the indefinite article in s 94(1), rather than by providing that "the Director is taken to have made the decision to take no further action". Alternatively, given the decision that is deemed to have been made under s 94(1) is the only "decision" referred to in s 89C(2), the better view is the making of a referral is not a decision. Such a construction is also supported by the usual canon of construction that where the Parliament has used different words, a different meaning is intended.
52 The statutory context assists in informing such a construction. The making of a referral has statutory obligations and consequences:
• the Director must prepare a written report for the Committee in respect of the services to which the referral relates: s 93(6)(a);
• within 7 days after making the referral, the Director must give a copy of it and the report to the Chief Executive Medicare and the person under review: s 93(7);
• the Committee must convene within 14 days: s 97(1);
• Subject to provision for extensions the Committee has a duty to carry out its functions so that its final report is given to the Determining Authority (or the person under review) within 6 months after the day on which the referral is received by the Committee.
53 None of these statutory obligations could be reckoned were it possible for there to be a "decision to make a referral" at a point in time prior to the issue of the instrument pursuant to s 93(1) of the HIA. The logic of such a conclusion is elucidated by the applicable principles for ascertaining when a "decision" is relevantly made for the purposes of a statutory scheme such as that in the HIA. The principles were discussed by Finn J in Semunigus v Minister for Immigration & Multicultural Affairs [1999] FCA 422 (upheld on appeal [2000] FCA 240; 96 FCR 533) at [19]-[20]:
For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.
What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision's having been made, etc.
(Emphasis added).
54 In Amir v Director of Professional Services Review [2021] FCA 745 (Amir 2021), upheld on appeal [2022] FCAFC 44; 290 FCR 355 (Amir 2022), a decision concerned with the construction of s 88A - being the Director's decision whether or not to undertake the review after a request from the Chief Executive Medicare, Jagot J said, at [51]:
The principle in Semunigus concerns the meaning of a "decision" generally. It gives that term a meaning which is consistent with its ordinary meaning and which is clear and capable of application. The focus is not on a decision-maker's mental state. It is on the external manifestation of that state of mind in some irrevocable and final manner. While this meaning will always yield to the particular statutory context, the context in the present case supports giving the words "decide" and "decision" in s 88A(1) and s 94(1)(a) and (b) this meaning.
(Emphasis added.)
55 The factual circumstances in Amir 2021 were not dissimilar to those in the present case. They are described by the Full Court in Amir 2022 at [36]-[51]. In summary, on 4 April 2019, the Chief Executive Medicare requested the Director to review Dr Amir's provision of services over a specified period. At 3:06pm on 4 April 2019, Mr Andrew Shelley emailed the Professional Services Review Agency (PSRA) staff circulating the request and the accompanying materials. At 3:08pm on the same day, the Director emailed certain staff PSRA staff stating:
I have reviewed the referral and decided to conduct a review
Please prepare the necessary paperwork
…
I had a brief chat to Andrew and we'll progress as per usual but not in any hurry so as to give the Committee time to progress.
56 At 3:18pm, Mr Shelley forwarded that email to certain other staff and said, inter alia, "I'd send the kick-off letter [being the letter required by s 88A(5) giving notice that decision to undertake a review had a review directly to Dr Amir], unless (noting they won't get signed for more than a week) we hear from [the lawyers in the Committee matter] in the meantime". On 16 April 2019, the Director notified Dr Amir of her decision to undertake a review, as required by s 88A(5), and said "… today I have decided to undertake a review into your provision of those services…".
57 As is the case in the current proceeding, Dr Amir bore the onus of proof. The Director was the decision-maker and a party but chose not to give evidence. Justice Jagot held, at [55] of Amir 2021, that the only adverse inference which could be drawn against the Director was that she in fact decided to undertake the review on 4 April 2019. If that were so, the later email remains to the effect that she also decided, on 16 April 2019, to undertake the review. Her Honour held at [55] that the consequence was that, within the prescribed period, the Director had made two decisions, but only one was irrevocable and communicated to Dr Amir. The later email, therefore, was the relevant decision for the purposes of the statutory provisions.
58 Dr Raiz submits that there is evidence from which it should be inferred that the Director had made up her mind to establish a Committee before she read the Submissions or even the summary prepared by Ms Ellen Lardner, a case manager for the PSRA. That evidence was said to comprise an email that was Annexure DR-19 to the Second Raiz Affidavit, which was ultimately not pressed, the email of 2 March 2018, and the alleged failure of the Director to consider Dr Raiz's suggestion in his submission to the Director on 21 February 2018 that she consider entering into an agreement under s 92.
59 The email of 2 March 2018 was sent at 8:55am by Ms Lardner to the Director attaching Dr Raiz's submissions, and indicating that Dr Raiz had provided a "large, hard copy folder of attachments to his submissions" which had been left on the Director's desk. In response, approximately half an hour later, the Director replied, "I'll review the file and make a decision next week" - "I'm inclined to refer to a Committee at this stage". The email contained what purported to be a summary of Dr Raiz's submissions spanning approximately one page.
60 At 4:33pm on 2 March 2018, Mr Shelley emailed the Director with a list of proposed committee members for Dr Raiz's matter. Subsequent to receiving that list, the Director emailed Dr Debra Coleman at 5:25pm on that date (Affidavit of Ms Margaret Parker of 30 August 2023 Annexure MP-2, (Parker Affidavit)). The email records that the Director telephoned Dr Coleman to "see if she were interested in hearing the case" but the message went to voicemail. Dr Coleman responded that she would call on Monday.
61 There followed an email from the Director to Mr Shelley on 5 March 2018 saying, "Martine has agreed. It is a long weekend in WA so the other two are currently away". The Director then emailed Mr Shelly, on 6 March 2018 (6 March 2018 email), to say "[a]ll Committee members are on board. Can the necessary paperwork please be prepared". In the same email, the Director raises concerns about the recording of schedule 4 and 8 drugs and requested that "this concern is raised in the referral".
62 Dr Raiz submits that the appropriate inference to be drawn from this evidence is that the Director had communications with the proposed committee members either during the morning of Friday 2 March 2018 or before, and if before, she would not have even had the summary from Ms Lardner, let alone the time to have read and digested over 500 pages of submissions.
63 I reject Dr Raiz's submission that the evidence supports a logical inference that the Director had contacted the potential committee members prior to 2 March 2018. The evidence supports an inference that, by 4:33pm on Friday 2 March 2018, almost seven hours after being copied in on an email between the Director and Ms Lardner in which the Director indicated that at this stage she was "inclined to refer", Mr Shelley had turned his mind to possible committee members. As Ms Parker testified, it was usual practice to sound out potential committee members' availability prior to a referral being made.
64 It is also reasonable to infer that the Director's "inclination" to refer was informed not merely by the summary prepared by Ms Lardner. It must also be recalled that, by this date, the Director had been involved with the matter for almost a year. She had received the Review Request from the CEM on 3 March 2017. That request contained six attachments being: Practitioner Review Program - review decision; Review of Medicare servicing and invitation to provide a written submission; a 10-page written submission from Dr Raiz; a 3-page response to the submissions by the CEM; MBS and PBS billing summary; and two referee reports. Further, the Director had reviewed a sample of service items received from the Department of Human Services pursuant to a request dated 6 April 2017. The Director also had the clinical records produced by Dr Raiz in response to the Notice to Produce issued to him on 3 May 2017. She had held a meeting with Dr Raiz, his professional indemnity representative and his legal representative on 20 December 2017. The Director had also prepared the s 89C report of 21 December 2017.
65 Against this background, I find it unsurprising that, on 2 March 2018, after reading Ms Lardner's summary and even if only after a cursory review of the Submissions, the Director was able to express a preliminary view that she was inclined to refer the matter to a Committee. Nevertheless, the Director allowed herself ample time to consider Dr Raiz's submissions, not making the Referral until 9 March 2018.
66 Ms Parker, a Special Counsel employed by the PSRA, gave evidence that she had assisted the Director and the Committee in relation to this proceeding and is the PSRA officer allocated responsibility for managing the proceeding: Parker Affidavit at [1], [4], [5]. Ms Parker was cross-examined about her experience of the manner in which committees were typically established. She had no recollection of being involved in the committee selection process for Dr Raiz's case. Senior Counsel for Dr Raiz pressed Ms Parker as to whether it was usual to contact potential committee members and ask them to block out time "unless some decision had been taken that a committee was going to be established". Ms Parker testified that such a course would be taken "if it was the Director's current intention to establish the committee". She went on to say, "I've experienced occasions where we have contacted members, and then - or a reason - no committee was subsequently constituted. So we need to be prepared in case a committee is decided upon". It was put to her that intentions may later change, which she accepted.
67 Ms Parker's evidence was unremarkable and can be readily accepted. It is unsurprising that the PSRA would have a practice of sounding out potential committee members' willingness to participate in, and their availability for hearings, prior to issuing an instrument in which the Committee members must be identified.
68 In the present case, the Referral records that the Director "by this instrument", which is dated 9 March 2018, sets up the Committee and refers an investigation to that Committee. Letters dated 9 March 2018 with the subject matter "Request to Review No. 1095 - constitution of Professional Services Review Committee No. 1095" were provided to Dr Debra Coleman, Dr Nedra Vanden Driesen, and Dr Martine Walker. A letter with the same subject matter was provided to Dr Raiz on 9 March 2018 enclosing, pursuant to s 93, the notice setting out the terms of ss 102, 106H and 106K, a copy of the Director's report for the Committee, and a copy of Medicare's Request for Review No. 1095 received by the Director on 3 April 2017.
69 The making of the Referral is the unequivocal manifestation of a decision that has been made by the Director not to take no further action in accordance with s 91, coupled with having not reached an agreement with Dr Raiz under s 92. To that extent, it has the same characteristic described by Jagot J in Amir 2021 at [45] of being an externally manifested communication by the Director of an irrevocable commitment by her to set up the Committee and to refer to that Committee the investigation about possible inappropriate practice by Dr Raiz.
70 As the Full Court said in Amir 2022 at [66]:
The ordinary meaning must necessarily yield to the relevant statutory context. In the present circumstances, the relevant decision functions within the statutory scheme as the trigger to start time running on the finite period within which the Director can perform her function in the first part of the review process. To seek to anchor the temporal guillotine of the Scheme, which carries real legal consequences, to the subjective state of mind of the particular office bearer without any requirement for a committed demonstrable manifestation of that state of mind is to divorce impermissibly the meaning of the term decision from its statutory context.
(Emphasis added.)
71 In circumstances such those in the present case, it is the Referral that triggers the provisions of Div 4 in the HIA governing the manner in which the Committee is to conduct its investigations, the rights of the person under review, and the actions that can be taken by the Committee, including the provisions relating to draft and final reports, and referrals to regulatory bodies. There is no express power in the HIA to withdraw a referral. The process triggered by a referral can only be interrupted by written notice, under s 106GA, from either the Director or the Committee to the other on being satisfied that circumstances exist that would make a proper investigation by the Committee impossible.
72 Further, unlike the position in Amir 2021, where the Director had indicated in her first email that she had decided to conduct a review, the Referral was not preceded by a decision. The email of 2 March 2018, which Dr Raiz contends is the relevant decision, is entirely equivocal, indicating no more than an "inclination" to refer. That email, and the subsequent emails to the Committee members detailed below, can be described as revocable acts of necessity in the referral process. As Jagot J observed in Amir 2021, at [40], while the Director may have "a strong predisposition one way or another", or an inclination to a particular course, this is distinct from the "manifestation of the commitment to a position or a particular course of action".
73 As a matter of construction, the time by which the Director was required to take into account any submissions made by Dr Raiz was when she made the Referral to the Committee, being 9 March 2017.