Fidge v Medical Board of Australia
[2024] VSC 471
•8 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 04529
| Dr Julian Fidge | Applicant |
| v | |
| Medical Board of Australia | Respondent |
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JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 March 2024 |
DATE OF JUDGMENT: | 8 August 2024 |
CASE MAY BE CITED AS: | Fidge v Medical Board of Australia |
MEDIUM NEUTRAL CITATION: | [2024] VSC 471 |
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ADMINISTRATIVE LAW — Application for leave to appeal and appeal of decision of the Victorian Civil and Administrative Tribunal — Appeal to the Tribunal where Medical Board of Australia imposed conditions on doctor’s practice — Where Tribunal substituted conditions with a formal caution — Whether doctor’s medical services have been conscripted — Whether Tribunal failed to consider the implied freedom of political communication — Whether Tribunal erred by not referring questions of law to Supreme Court of Victoria — No question of law identified with reasonable prospect of success — Leave to appeal refused — Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 — Comcare v Banerji (2019) 267 CLR 373, Buckley v Council of the Law Society of New South Wales [2022] NSWSC 328 considered — Appeal dismissed.
STATUTORY CONSTRUCTION — Whether Tribunal misconstrued provisions of the Commonwealth Constitution, Commonwealth of Australia Constitution Act (Cth) and/or Health Practitioner Regulation National Law (Victoria) — Whether Tribunal misconstrued certain guidelines and statements — Whether certain guidelines and statements invalid — Whether Health Practitioner Regulation National Law (Victoria) is validly adopted by Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) — Commonwealth Constitution ss 51(xxiiiA), 109 — Commonwealth of Australia Constitution Act (Cth) s 5 — Health Practitioner Regulation National Law (Victoria) ss 39, 178 — Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 4 — Constitution Act 1975 (Vic) s 16 — Kassam v Hazzard (2021) 106 NSWLR 520, Wilson v State of Victoria [2023] FCA 111, Wong v The Commonwealth (2009) 236 CLR 573, McCloy v New South Wales (2015) 257 CLR 178, Hogan v Hinch (2011) 243 CLR 506, Kalil v Bray (1977) 1 NSWLR 256, Ainsworth v Criminal Justice Commission (1992) 175 CLR 565 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr J. Fidge on his own behalf | |
| For the Respondent | Mr N. Wood SC Mr J. Stoller | Australian Government Solicitor |
HER HONOUR:
INTRODUCTION
The applicant, Dr Julian Fidge, is a registered medical practitioner. Dr Fidge practises as a general practitioner in Wangaratta, where he is practice principal for two medical clinics.
On 22 January 2021, Dr Fidge published a publicly accessible post on Facebook in his own name (the ‘Facebook Post’). The Facebook Post depicts a colour image of planet Earth, in the shape of a skull, floating in outer space. The skull appears to be coughing and has uneven edges, giving it the impression of dripping or melting. Above the image is the text, in all capital letters:
A VACCINE SO SAFE, YOU HAVE TO BE THREATENED TO TAKE IT
A VIRUS SO DANGEROUS, YOU HAVE TO TAKE A TEST TO KNOW YOU HAVE IT
A notifier made a complaint about the Facebook Post to the Australian Health Practitioner Regulation Agency (‘AHPRA’) and on 19 August 2021, the respondent, the Medical Board of Australia (the ‘Board’), decided to impose certain conditions upon the applicant’s registration pursuant to s 178(2)(c) of the Health Practitioner Regulation National Law (Victoria) (the ‘National Law’)[1] (the ‘Board’s Decision’). The conditions included a requirement that the applicant undertake and successfully complete an education program approved by the Board concerning the appropriate use of social medial in adherence with the Board’s Code of Conduct.
[1]Section 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) (‘the Adoption Act’) provides that the National Law, as in force from time to time, set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) applies as a law of Victoria and may be referred to as the Health Practitioner Regulation National Law (Victoria). For convenience, it is referred to simply as the ‘National Law’.
On 30 August 2021, Dr Fidge appealed against the Board’s Decision to the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) pursuant to s 199(1)(e) of the National Law, and also applied for an order staying the operation of the Board’s Decision.[2]
[2]The Tribunal was the ‘appropriate responsible tribunal’ in relation to the Decision. See s 199(2) of the National Law, and s 6 of the Adoption Act.
On 3 October 2022, the Tribunal made orders substituting the Board’s Decision with a formal caution and refusing Dr Fidge’s application to refer questions of law to this Court under s 98 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).[3]
[3]The Tribunal’s orders subject to appeal are set out at [15] below.
The applicant now seeks leave to appeal these orders pursuant to s 148 of the VCAT Act.
PROCEDURAL BACKGROUND
I set out below the litigation history of this proceeding, starting from Dr Fidge’s appeal to the Tribunal.
Appeal to the Tribunal
On 30 August 2021, Dr Fidge appealed against the Board’s Decision to the Tribunal under s 199(1)(e) of the National Law. Additionally, he applied for an order staying the operation of the Board’s Decision.
On 8 October 2021, the Tribunal made an order under s 50(3) of the VCAT Act staying the Board’s Decision.[4]
[4]Fidge v Medical Board of Australia [2022] VCAT 1137 (‘Tribunal’s Decision’), [2].
In November 2021, Dr Fidge sought orders from the Tribunal to compel the Board to provide him with certain documents. He also sought orders ‘enforcing’ the 8 October 2021 stay order in that he sought orders requiring the Board to remove an entry from the National Register of Medical Practitioners, which detailed the fact that the Board’s Decision had been made but had been stayed by order of the Tribunal. Both applications were refused by the Tribunal via interlocutory orders.[5]
[5]Tribunal’s Decision, [7].
Dr Fidge applied to this Court pursuant to s 148 of the VCAT Act for leave to appeal from the interlocutory orders of the Tribunal. The Court heard that matter on 11 July 2022.[6] At the conclusion of argument on that day, the Court granted leave to appeal and dismissed the appeal. Dr Fidge sought leave to appeal from that decision to the Court of Appeal. That application was heard on 18 October 2023 and the Court of Appeal refused leave to appeal at the hearing.[7]
[6]Fidge v Medical Board of Australia (Supreme Court of Victoria, Cavanough J, 11 July 2022).
[7]The Court of Appeal’s reasons were later published on 9 November 2023 in Fidge v Medical Board of Australia [2023] VSCA 272.
Prior to the Court of Appeal’s decision of 18 October 2023, Dr Fidge’s substantive application to the Tribunal was heard over two days, on 3 March and 13 July 2022. Dr Fidge sought, among other things, orders that:
(a) the Tribunal proceeding be stayed pending:
(i) the resolution of the application for leave to appeal from the Tribunal’s interlocutory orders; and
(ii) the resolution of another application for leave to appeal to this Court brought in a matter involving the applicant and respondent;[8]
(b) various questions be referred to this Court for decision under s 96 of the VCAT Act; and
(c) the Board’s decision be set aside and remitted for reconsideration.
[8]See Medical Board of Australia v Fidge [2022] VSC 786.
The Tribunal was constituted by a panel comprising one legal practitioner member and two registered medical practitioners. Clause 11AJ of Schedule 1 to the VCAT Act required that the Tribunal be constituted by a panel including at least two registered medical practitioners.
Tribunal’s Decision
On the first day of hearing on 3 March 2022, the Tribunal refused Dr Fidge’s application pursuant to s 149(1) of the VCAT Act that the Tribunal proceeding be stayed. This is recorded as Order 1 made on 3 March 2022:
1The application to stay the proceedings under section 149(1) of the Victorian Civil and Administration Tribunal Act 1998 (Vic), is dismissed.
On 3 October 2022, the Tribunal made its final orders, Order 2 and Order 3, and published its reasons. These orders are as follows:
2The application to refer questions of law to the Supreme Court under section 98 of the Victorian Civil and Administration Tribunal Act 1998 (Vic) is dismissed.
3Under section 202(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 the following decision is substituted for appellable decision of the Respondent dated 19 August 2021:
Dr [Fidge] is cautioned that when commenting or posting on social media where his professional status can be identified, ensure he takes care to avoid conveying a message that can be construed by the public as contrary to established public health programs.
The reasons for the Tribunal’s Decision with respect to Order 2 and Order 3, which are the orders subject of this appeal, can be summarised as follows.
Reasons for Order 2
After dealing with Dr Fidge’s application for a stay of the Tribunal proceeding,[9] the reasons set out the basis for Order 2, being the Tribunal’s decision to refuse to refer two ‘questions of law’ to this Court.
[9]Which was dismissed by Order 1.
As a starting point, the Tribunal identified the application for referral of questions to this Court at [29] as follows:
Dr Fidge submitted that sections 39 and 178(1) of the National Law are invalid and that the question of their validity should be referred to the Supreme Court.
The Tribunal did not consider referring any other question to this Court, and Dr Fidge makes no complaint that the Tribunal misunderstood or failed to deal with any aspect of his application for questions to be referred.
At [31] of the Reasons, the Tribunal cited the text of s 96 of the VCAT Act.[10]
[10]Although incorrectly referred to that provision as ‘Section 98’.
The Tribunal first considered Dr Fidge’s submissions as to the validity of s 178, from Reasons [32]–[37]. Its assessment of Dr Fidge’s submissions and its conclusions as to the validity of s 178 are set out at [37], where the Tribunal said (citations omitted):
One of the objectives of the National Law is to provide for the protection of the public. The procedure under section 178 and the following provisions includes a “show cause” process which allows the practitioner to be notified of proposed action and enables them to make submissions before any decision is made. There is also provision to appeal the decision to this Tribunal, as Dr Fidge has done. These are safeguards for the practitioner. Parliament has decided that there should be a low bar as the protection of the public is the paramount objective. This does not make the provision invalid, and the provision complies with Charter of Human Rights and Responsibilities Act 2006 (Vic).
At [38], the Tribunal stated that, in the exercise of its discretion, it would not refer the question of the validity of s 178 to this Court.[11]
[11]Section 96 of the VCAT Act confers a broad discretion on the Tribunal, see, eg, Fidge v Municipal Electoral Tribunal [2019] VSC 639, [106].
The Tribunal then considered the question of the validity of s 39 of the National Law from Reasons [39]–[47], concluding at [47]:
We will not refer these issues to the Supreme Court because first there is no question of law that needs to be clarified and secondly the question of whether the Board has the power to make guidelines that have the effect of imposing limitations on a registrant’s practice is not a question that is before this Tribunal or needs to be determined in this application.
Reasons for Order 3
The Tribunal’s Decision then address the Tribunal’s decision in Order 3 to substitute the Board’s Decision with a caution from [58]–[106]. In summary, the Tribunal recorded findings that:
(a) the Facebook page on which the Facebook Post was made identified Dr Fidge as the principal of a medical practice;[12]
[12]Tribunal’s Decision, [71].
(b) Dr Fidge ‘was clear that his motivation was to engage individuals who were vaccine hesitant, and this was done in his capacity as a medical practitioner’;[13]
[13]Tribunal’s Decision, [71].
(c) the Facebook Post involved professional conduct that ‘may be unsatisfactory’ within the meaning of s 178 of the National Law,[14] including because:
[14]Tribunal’s Decision, [72]–[98].
(iii) the Tribunal accepted that Dr Fidge’s motive in publishing the post was to engage vaccine hesitant individuals;[15]
[15]Tribunal’s Decision, [88].
(iv) contrary to Dr Fidge’s submission, the post was capable of being interpreted as conveying an anti‑vaccination message;[16]
[16]Tribunal’s Decision, [89], [98].
(v) Dr Fidge ‘failed in his strategy’ of engaging vaccine hesitant individuals by publishing the post, because the post was made ‘without explanation or qualification [in that Dr Fidge] actually did not try to engage the public’;[17]
[17]Tribunal’s Decision, [90].
(vi) Dr Fidge ‘had a professional responsibility to include appropriate context and make the purpose of the post clear. In the nature and form it was posted, and the risk of how it may have been interpreted, it was inconsistent with public and professional expectation of medical practitioners in relation to this important public health issue’;[18] and
(d) the appropriate action to take as a consequence was to caution Dr Fidge.[19] The Reasons at [99]–[106] conclude that a caution was the minimum regulatory force required to address the protection of the public.
[18]Tribunal’s Decision, [98].
[19]Tribunal’s Decision, [105]–[106].
APPEAL TO THIS COURT
On 31 October 2022, Dr Fidge filed a notice of appeal in this Court seeking leave to appeal Order 2 and Order 3 pursuant to s 148 of the VCAT Act (‘Notice of Appeal’).
Questions and Grounds
In his Notice of Appeal, Dr Fidge raises 18 questions of law supported by 53[20] grounds of review.
[20]The grounds comprise 53 numbered paragraphs.
The questions of law are set out in two parts, entitled ‘Part A’ and ‘Part B’. Part A relates to Order 2 and contains five questions, marked ‘A1’ to ‘A5’. Part B relates to Order 3 and contains 13 questions marked ‘B1’ to ‘B13’. The 53 grounds are also organised into a ‘Part A’ and ‘Part B’, with Part A containing 11 numbered paragraphs of grounds, and Part B containing 42 numbered paragraphs.
The questions and grounds, which cover 16 pages of the Notice of Appeal, can be summarised as follows:
(a) questions A1, A2, A3, B5, B6 and B7 relate to whether the Tribunal misconstrued s 5 of the Commonwealth of Australia Constitution Act (Cth) (‘Constitution Act’), and ss 51(xxiiiA) and/or 109 of the Commonwealth Constitution. Underpinning each question is Dr Fidge’s contention that his medical services have been conscripted by the Victorian and Australian Governments;
(b) questions A4, B3, B8, B11, B12 and B13, read with Dr Fidge’s submissions, relate to whether the Tribunal misconstrued or misapplied ss 39 and/or 178 of the National Law;
(c) questions A5, B9 and B10 relate to the construction and validity of the following guidelines and statements:[21]
[21]I note that in his materials, the applicant has misdated these documents a number of times.
(vii) Guidelines: Supervised Practice For International Medical Graduates published 4 January 2016 by the Board (‘Guidelines’);[22]
[22]Amended Court Book (filed 7 March 2024 in S ECI 2022 04529, Supreme Court of Victoria) (‘Court Book’), 278–86.
(viii) Joint statement on COVID‑19 and COVID‑19 vaccines from nation's regulators published on 30 August 2021 by the Therapeutic Goods Administration (‘TGA’), AHPRA, National Boards, Office of the Health Ombudsman and the Health Care Complaints Commission (‘Joint Statement’);[23] and
[23]Court Book, 392–8.
(ix)Position Statement – Registered health practitioners and students and COVID‑19 vaccination published on the 9 March 2021 by AHPRA and the National Boards (‘Position Statement’).[24]
(d) questions B1 and B2 relate to the validity of the adoption of the National Law by the Adoption Act; and
(e) question B4 relates to whether the Tribunal failed to consider the implied freedom of political communication.
[24]Court Book, 387–91.
Dr Fidge’s Notice of Appeal states that ‘each of the grounds relied upon severally establishes a vitiating error of law except the constitutional grounds in Part B, which may be required to stand together to invalidate the decision of the Tribunal’.
Orders sought
Dr Fidge sought orders in the following terms:
(a) granting the application for leave to appeal;
(b) setting aside those parts of the Tribunal’s order which are appealed;
(c) declaring paragraph 3.5 of the Guidelines to be invalid or, alternatively, that s 39 of the National Law is invalid;
(d) declaring that s 4 of the Adoption Act is invalid;
(e) declaring that the National Law is invalid;
(f) declaring that s 178(1)(a)(i) of the National Law is invalid;
(g) declaring that the Joint Statement is invalid;
(h) declaring that the Position Statement is invalid;
(i) declaring that health practitioners in Victoria cannot be compelled to agree with or support or refrain from criticising any health program whether conducted by the State of Victoria, the Commonwealth, or any other State;
(j) costs;
(k) costs for the Tribunal hearings below ‘because of the improper conduct of the Board at the Tribunal hearing’; and
(l) any other orders the Court considers appropriate.
SUBMISSIONS OF THE PARTIES
Dr Fidge
Dr Fidge made written and oral submissions in respect of each question raised in his Notice of Appeal.
Much of Dr Fidge’s submissions appear to litigate his allegation that he was ‘prosecuted for being anti‑vaccination’. Both in written and oral submissions, he emphasised that he has never been opposed to vaccination. He submitted that he and his family are fully vaccinated and that in his practice he has provided tens of thousands of vaccinations, including more than 10,000 COVID‑19 vaccinations.[25]
[25]Applicant’s Outline of Submissions (filed 9 August 2023 in S ECI 2022 04529, Supreme Court of Victoria) (‘Applicant’s Submissions’), [4]. In oral submissions, the applicant stated that he has administered more than 15,000 COVID‑19 vaccinations. See Transcript of Proceedings, Fidge v Medical Board of Australia (Supreme Court of Victoria, S ECI 2022 04529, Quigley J, 7 March 2024) (‘Transcript of the 7 March 2024 Supreme Court Hearing’), 5.
His submissions rest on his allegation that his medical services have been conscripted by the Board and Tribunal and that s 51(xxiiiA) of the Commonwealth Constitution forbids conscription of medical services. An underlying theme of his submissions is his complaint that the powers purported to be exerted by the various medical regulators, including those relevant to this proceeding, are ‘totalitarian’, ‘authoritarian’ and silence dissent.[26] He made reference to Nazi medical practices, and suggested that the decisions appealed from the Board and the Tribunal would prevent him from protesting against eugenics programs of the like seen in Nazi Germany.[27]
[26]Applicant’s Submissions, [12].
[27]Applicant’s Submissions, [14].
I describe his submissions in respect of each question below.
Question A1
Question A1 alleges that the Tribunal erred in not considering, not applying, and refusing to refer the question of the application of s 51(xxiia) of the Commonwealth Constitution to this Court.
The submissions in support of this question rest on a construction of s 51(xxiiiA) that prohibits conscription of medical services, which he says includes his opinion for or against a particular therapy for a particular disease. He says the requirement of the Commonwealth or Victorian governments that he support the COVID‑19 vaccination program must be prohibited, seeking to rely on the High Court decisions of British Medical Association v The Commonwealth (1949) 79 CLR 201 (the ‘BMA Case’) and General Practitioners Society v The Commonwealth (1980) 145 CLR 532.
He says that the question of whether s 51(xxiiiA) ‘shields’ him from prosecution was a question the Tribunal could not answer so was obliged to refer that question to this Court.
Question A2 and A3
The submissions on questions A2 and A3 are that the Tribunal erred when it failed to properly consider, apply or refer the question of the operation of s 5 of the Constitution Act and/or s 109 of the Commonwealth Constitution to this Court because:
(a) section 5 of the Constitution Act may operate to enliven s 51(xxiiiA) of the Commonwealth Constitution to shield him from having to render a particular medical service in a particular manner; and
(b) section 109 is inconsistent with the operation of s 51(xxiiiA) of the Commonwealth Constitution.
He submitted that, in circumstances where the Tribunal ruled at [52] that it did not have jurisdiction to decide if s 51(xxiiiA) of Commonwealth Constitution rendered the prosecution of him unlawful, the Tribunal had an obligation to refer the question.
Question A4
In relation to question A4, Dr Fidge submitted that the Tribunal erred when it failed to properly consider or refer the question of the validity of s 178 of the National Law because it is ‘clear from the language that s 178 may contain insufficient legislative protection for health practitioners.’
He alleges inter alia that the section ‘reverses’ the onus of proof because health practitioners must ‘prove with complete certainty’ that their conduct is acceptable and, as such, is incompatible with the implied freedom of political communication and principles of natural justice.
Question A5
In relation to question A5, Dr Fidge alleges that the Tribunal failed to recognise that the Guidelines operate to impermissibly fetter the Board because it ‘automatically impose[s] conditions on medical practitioners without affording medical practitioners natural justice’, and that the ‘fettering of the Board’ is a question that required referral to this Court.
Questions B1 and B2
In support of question B1, Dr Fidge submitted that s 4 of the Adoption Act is invalid as it purports to establish a law for Victoria without consideration by the Victorian Parliament by purporting to automatically adopt a statute from another jurisdiction, Queensland, without review by the Victorian Parliament. His submissions seek support from s 16 of the Constitution Act 1975 (Vic) and that Queensland has only one house of parliament. He alleges that the scheme ‘nefariously’ imposes the will of another parliament on Victoria without any protection or review of the law before it becomes law in Victoria.[28]
[28]Applicant’s Submissions, [59].
He makes the same submissions in respect of question B2, that the National Law itself is invalid because it was established without consideration by the Victorian Parliament.
Question B3
In respect of question B3, Dr Fidge submitted that the Tribunal misconstrued s 178(1)(a)(i) of the National Law in cautioning him to not criticise public health programs because s 178 cannot compel him to support Victorian or Australian Government health programs in his private or professional capacity.
He submitted that he is obliged to provide the best advice to his patients, not the advice of government bodies, departments or agencies.
Question B4
Dr Fidge submitted in respect of question B4 that the Tribunal misconstrued the implied freedom of political communication in cautioning him to avoid messages contrary to public health programs as the National Law has no provision with the power to prevent him from discussing political matters in a private or professional capacity on Facebook or elsewhere.
His submissions rest on his allegation that he was discussing a matter of political interest and his criticism was ‘reasonable criticism of a dangerous therapy’.[29] He says that in these circumstances he was correct and that the AstraZeneca vaccine was ‘so dangerous’ that it is no longer approved for use in Australia.[30]
[29]Applicant’s Submissions, [65].
[30]Applicant’s Submissions, [68].
Question B5
In support of question B5, Dr Fidge submitted that the Tribunal misconstrued the operation of s 51(xxiiiA) of the Commonwealth Constitution in cautioning him to avoid messages contrary to public health programs, because the Commonwealth and national bodies cannot be authorised to force him to say, or not say, particular things in the course of his medical practice, or elsewhere. He referred the Court to Webb J’s statement in the BMA Case at 292–3.
Question B6
In support of question B6, Dr Fidge submitted that the Tribunal misconstrued the operation of s 5 of the Commonwealth Constitution as this section provides that the Commonwealth Constitution is binding on the Tribunal and, as such, the Tribunal ‘cannot escape’ the ‘prohibition against conscription’ of his medical services.
He submitted in the alternative that if the Tribunal was not able to decide upon, or impose, the Commonwealth Constitution in the proceedings, it was bound to refer the question to a relevant court pursuant to s 77 of the VCAT Act.
Question B7
In support of question B7, he submitted that the Tribunal misconstrued s 109 of the Commonwealth Constitution. He submitted that s 109 operates to render unlawful any state law which conscripts medical services.
He referred to the Joint Statement which he says was relied on by the Tribunal and which he says ‘clearly conscripts’ his medical services by forcing him not to criticise or otherwise act inconsistently with the Australian COVID‑19 Vaccination Policy. He submitted that, for this reason, it is prohibited by the Commonwealth Constitution and invalid.
Question B8
In relation to question B8, Dr Fidge alleges that the Tribunal acted outside its jurisdiction in considering what he alleges to be his ‘personal conduct’ as being ‘professional conduct’ for the purposes of s 178 of the National Law.
He says that ‘professional conduct’ does not include his publication of the Facebook Post.
Questions B9 and B10
In relation to questions B9 and B10, Dr Fidge submitted that the Joint Statement and Position Statement are invalid because they conscript his medical services and is therefore prohibited by the Commonwealth Constitution. As such, he submitted the Tribunal erred by relying on these statements when deciding to caution him.
Question B11
Dr Fidge’s submissions in respect of question B11 are that the Tribunal acted unreasonably in the Wednesbury[31] sense because:
no reasonable Tribunal would caution a healthcare practitioner for telling the truth about the relative risks and benefits of a therapy that is so dangerous and lacking in efficacy that it was effectively withdrawn from the Australian market shortly after it was introduced.[32]
[31]Being the formulation of the administrative law standard of ‘unreasonableness’ enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (‘Wednesbury’).
[32]Applicant’s Submissions, [100].
He says that the Tribunal failed to give proper weight to the relevant factor of the ‘underlying truth and value’ of his ‘sarcastic’ comment in the Facebook Post.
He submitted that s 178 of the National Law requires the Tribunal to form a reasonable belief that his conduct may be unsatisfactory. While acknowledging this is a ‘low standard’, he submitted that his ‘telling the truth’ about the AstraZeneca COVID‑19 vaccine does not reach this threshold and that the correctness of his view makes the Tribunal’s decision unreasonable.
Question B12
Dr Fidge’s submissions in respect of question B12 are that the Tribunal erred when it cautioned him because the National Law ‘cannot be validly used to prohibit [him] from criticising a government health program.’ He says the object of the National Law is to protect the public and the Tribunal’s decision is invalid because it is not in pursuit of this object.
He also submitted that the Tribunal’s use of the National Law impermissibly burdens the implied freedom of political communication and exempts Australian public health authorities from oversight and criticism. He describes the use of the National Law to suppress ‘negative, legitimate criticism’ as an error of law.
Question B13
Lastly, in relation to question B13, Dr Fidge submitted that the Tribunal misconstrued the operation of s 39 of the National Law when it decided at [46] that the Board had not delegated the function to make guidelines.
Dr Fidge referred to section 3.5 of the Guidelines which provides that ‘all supervisors … must not have conditions imposed on their registration’. He says this imposes a further condition on him that he can no longer supervise international medical graduates and, as such, is invalid because the Board’s power to impose conditions derives from s 178, rather than s 39, of the National Law. He says this amounts to an unlawful delegation of a ‘function to [make] a guideline’.
He also submitted that the Tribunal erred in finding at [47] that the question of the Guidelines’ validity was not before the Tribunal.
The Board
The Board submitted that leave to appeal should be refused and, alternatively, if leave is granted, the appeal should be dismissed.[33]
[33]The Board also sought an order for costs.
The Board’s submissions point to various overarching difficulties with Dr Fidge’s submissions, including that:
(a) section 51(xxiia) of the Commonwealth Constitution does not provide Dr Fidge with a personal right to not have medical services conscripted. Rather, this section confers legislative power to the Commonwealth Parliament and places limitations on that power in respect of civil conscription. As such, it has no bearing on state law‑making;
(b) Dr Fidge has not established on the evidence that his medical services have been conscripted;
(c) Dr Fidge’s submission that the uniform legislation scheme underpinning the enactment of the National Law is unconstitutional is entirely without merit;
(d) the contention that the Tribunal ‘misconstrued’ ss 51(xxiiiA) and 109 of the Commonwealth Constitution and s 5 of the Constitution Act is not borne out on the evidence because the Tribunal did not purport to construe those provisions at all;[34]
[34]The Board referred the Court to Tribunal’s Decision, [51].
(e) the Tribunal was not asked to refer the questions of proper construction of the provisions referred to in questions A1, A2 and A3 to this Court;
(f) Dr Fidge has not established that ss 51(xxiiiA) and 109 of the Commonwealth Constitution, or s 5 of the Constitution Act, are in any way relevant to the Tribunal’s Decision;
(g) The question of implied freedom of political communication was not raised with the Tribunal by Dr Fidge in submitting that s 178 was invalid. Further, the framing of the implied freedom as a personal right held by him is misconceived; and
(h) the guidelines and statements referred to by Dr Fidge were not relied on by the Tribunal, so it follows that their validity (or the validity of the provisions they were made under) is not an issue which requires resolution.
LEAVE TO APPEAL
Dr Fidge seeks to appeal the Tribunal’s decision pursuant to s 148 of the VCAT Act. The appeal jurisdiction of this Court under s 148 is not automatic. The first step is for the Court to decide whether leave to appeal should be granted and, if leave is granted, whether the appeal should be allowed.
For leave to appeal to be granted, I must be satisfied that the application identifies a question (or questions) of law and that the question (or questions) has a reasonable prospect of success.
For the reasons which follow, I am not satisfied that any of the questions of law raised by Dr Fidge have reasonable prospects of success and I would not grant leave to appeal. Insofar as any of the questions raised might be arguable, on analysis, they have no substance and the appeal is destined to fail.
Given the substantial overlap between a number of questions and grounds, I have dealt with them in logical groupings where possible.
ANALYSIS
Questions A1, A2, A3, B5, B6 and B7
Each of questions A1, A2, A3, B5, B6, and B7, read in light of Dr Fidge’s submissions, relate to ss 51(xxiiiA) and 109 of the Commonwealth Constitution and s 5 of the Constitution Act. Underpinning each question is the applicant’s contention that his medical services have been conscripted by the Victorian and Australian Governments.
Section 51(xxiiiA) of the Commonwealth Constitution provides as follows:
51. Legislative powers of the Parliament.
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:—
…
(xxiiiA.)The provision of … medical and dental services (but not so as to authorize any form of civil conscription) …
By questions A1 and B5, Dr Fidge asks whether the Tribunal misconstrued s 51(xxiiiA) of the Commonwealth Constitution. Dr Fidge does not contend, in either of these grounds, that any provision of the National Law is invalid because of the terms of s 51(xxiiiA). Rather, he appears to contend that the provision confers upon him a personal right to not have his medical services conscripted by a government agency, including a state government agency, and that this is the effect of the Tribunal’s Decision.
Section 5 of the Constitution Act is as follows:
5. Operation of the Constitution and laws.
This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.
By questions A2 and B6, Dr Fidge asks whether the Tribunal misconstrued s 5 of the Constitution Act. The argument in these grounds appears to be that s 5 of the Constitution Act has the effect that s 51(xxiiiA) of the Commonwealth Constitution (as those requirements are understood by the applicant) imposes constraints on the Tribunal in the exercise of its power.
Section 109 of the Commonwealth Constitution is as follows:
109. Inconsistency of laws.
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid
By questions A3 and B7, Dr Fidge asks whether the Tribunal misconstrued s 109 of the Commonwealth Constitution. The applicant’s argument in this respect appears to be that s 51(xxiiiA) of the Commonwealth Constitution is inconsistent with the Tribunal’s Decision and that the Tribunal’s Decision is therefore invalid.
Did the Tribunal construe the relevant sections?
Before addressing the substance of these grounds, I note that Dr Fidge’s contention that the Tribunal ‘misconstrued’ ss 51(xxiiiA) and 109 of the Commonwealth Constitution, and s 5 of the Constitution Act, is not borne out on the evidence. The Tribunal did not purport to construe those provisions at all.[35]
[35]Tribunal’s Decision, [52].
Further, and contrary to the complaints under questions A1, A2, and A3, the applicant did not ask the Tribunal to refer the question of the proper construction of these provisions to this Court.[36] It follows that the Tribunal neither misconstrued the Commonwealth Constitution provisions nor otherwise erred in its approach to considering them, and that each of these questions and the related grounds must fail.
[36]At [29] of the Tribunal’s Decision, the Tribunal found that Dr Fidge submitted that ss 39 and 178 of the National Law were invalid and asked it to refer the question of their validity of to this Court. At [48]–[52], the Tribunal did not understand Dr Fidge to make the same application with respect to the constitutional arguments raised by Dr Fidge, which were dealt with separately.
Are the sections relevant to the Tribunal’s Decision?
Further, and in any event, the applicant has not established that ss 51(xxiiiA) or 109 of the Commonwealth Constitution, or s 5 of the Constitution Act, are relevant to the Tribunal’s Decision.
First, each of these grounds rely on the contention that s 51(xxiiiA) of the Commonwealth Constitution operates to confer upon him a personal right not to have his medical services conscripted by a State entity.[37] That is, Dr Fidge submitted that the Tribunal’s Decision was inconsistent with his ‘right’ not to have his medical services conscripted, rather than submitting (for example) that s 178 of the National Law (the provision pursuant to which the Tribunal’s Decision was made) or any other identified legislative provision is invalid because of the terms of s 51(xxiiiA).
[37]Dr Fidge does not submit that the Tribunal, which made the impugned orders, is a Commonwealth entity. To the extent that he contends that the Board is effectively a federal body or that the National Law is ‘effectively a Commonwealth law’, those submissions are untenable. See Applicant’s Submissions, [28], [32].
The contention that s 51(xxiiiA) operates to confer a freestanding right on an individual not to have their medical services conscripted is misconceived. Section 51(xxiiiA) operates only to confer a power on the Commonwealth Parliament (to legislate in respect of, relevantly, medical services) but limits that power (to provide that the Commonwealth Parliament cannot legislate in respect of medical services ‘so as to authorize any form of civil conscription’). Section 51(xxiiiA) does not confer any individual right[38] and no issue arose before the Tribunal, or in this proceeding, as to the validity of any Commonwealth legislation.
[38]See, eg, Wilson v State of Victoria [2023] FCA 111, [58] (‘Wilson’).
Secondly, to the extent that it is contended that s 178 of the National Law is invalid because it is inconsistent with s 51(xxiiiA) of the Commonwealth Constitution, any such contention should be rejected. Section 51 of the Commonwealth Constitution sets out legislative powers of the Commonwealth Parliament. The Tribunal’s orders were made under s 222 of the National Law, which is State legislation, not Commonwealth legislation. The restrictions on the legislative power of the Commonwealth contained in s 51(xxiiiA) do not apply to a State.[39] It follows that s 51(xxiiiA) can have no bearing on the validity of s 178 or any other provision of the National Law (such as s 222), or the VCAT Act.
[39]Kassam v Hazzard (2021) 106 NSWLR 520, [39] (Bell P, Meagher JA and Leeming JA agreeing). See also Wilson, [58], [60].
Thirdly, neither s 5 of the Constitution Act nor s 109 of the Commonwealth Constitution operate to render s 51(xxiiiA) relevant to the Tribunal’s Decision.
Section 5 of the Constitution Act provides, in summary, that the Commonwealth Constitution and the laws of the Commonwealth Parliament are binding on the courts and people of every State. However, it does not follow that the limitation to the head of legislative power conferred on the Commonwealth Parliament by s 51(xxiiiA) has any bearing on the Tribunal’s Decision, or any decision or action taken under State law. That is, s 51(xxiiiA) does no more and no less than confer a limited head of legislative power on the Commonwealth Parliament. It does not dictate any requirement that could be binding on the Tribunal, the Board, or a State parliament.
Similarly, s 109 of the Commonwealth Constitution was irrelevant to the Tribunal’s task. Section 109 applies to give primacy to laws made by the Commonwealth Parliament over laws made by a State parliament, to the extent of any inconsistency. No provision of State law can be inconsistent with s 51(xxiiiA) of the Commonwealth Constitution, because s 51(xxiiiA) confers limited legislative power on the Commonwealth Parliament, rather than conferring any power or imposing any limits on State parliaments or the executive of any State. And no Commonwealth law has been identified by the applicant as a law in respect of which any relevant provision of the National Law (or the VCAT Act) is inconsistent.
Have Dr Fidge’s medical services been conscripted?
In any event, Dr Fidge has not established that he has been conscripted to provide medical services by the Tribunal’s Decision. In this regard:
(a) I do not accept that his submission that there is some ‘requirement of the Commonwealth and the State of Victoria that Dr Fidge support their COVID‑19 vaccination program’.[40] No such requirement was found to exist by the Tribunal, and the alleged existence of any such requirement accordingly played no part in the Tribunal’s Decision.
[40]Applicant’s Submissions, [21].
(b) Section 178 of the National Law does not conscript the provision of medical services by the applicant or any other person. As was stated in Wong v The Commonwealth (2009) 236 CLR 573:
(x) at [60], by French CJ and Gummow J (emphasis added):
The legislative history and the genesis of s 51(xxiiiA) supports a construction of the phrase “(but not so as to authorize any form of civil conscription)” which treats “civil conscription” as involving some form of compulsion or coercion, in a legal or practical sense, to carry out work or provide services; the work or services may be for the Commonwealth itself or a statutory body which is created by the Parliament for purposes of the Commonwealth; it also may be for the benefit of third parties, if at the direction of the Commonwealth.
(xi)at [226], by Hayne, Crennan and Kiefel JJ (emphasis added):
The practical compulsion to meet a prescribed standard of conduct when the practitioner does practise is not a form of civil conscription. To adopt and adapt what Dixon J said in the BMA Case, “[t]here is no compulsion to serve as a medical [practitioner], to attend patients, to render medical services to patients, or to act in any other medical capacity, whether regularly or occasionally, over a period of time, however short, or intermittently.
That is, s 178 of the National Law does not compel or coerce any registered medical practitioner (in a practical or legal sense) to carry out work or provide services. It merely dictates a requirement to meet a prescribed standard of conduct when a practitioner does practise. It follows that the provision does not authorise any form of civil conscription.
For the above reasons, questions A1, A2, A3, B5, B6 and B7 and associated grounds are of no substance and bound to fail.
Questions A4, B3, B8, B11, B12 and B13
Each of these questions, read with Dr Fidge’s submissions, seek to impugn the Tribunal’s construction or application of ss 39 and/or 178 of the National Law.
For the following reasons, each of these questions and their associated grounds are without merit and have no prospect of success.
Did the Tribunal misconstrue the operation of s 39?
Section 39 of the National Law provides:
39 Codes and guidelines
A National Board may develop and approve codes and guidelines—
(a)to provide guidance to the health practitioners it registers; and
(b)about other matters relevant to the exercise of its functions.
By question B13, Dr Fidge asks whether the Tribunal misconstrued the operation of s 39 of the National Law when it decided at [46] that ‘the Board had not delegated the function to impose further, automatic conditions upon Dr Fidge's registration that he not supervise international medical graduates to a guideline which impermissibly fetters the Board.’[41]
[41]Applicant’s Submissions, [108].
Question B13 is misconceived. The Tribunal did not purport to construe s 39 and it did not need to. No part of the Tribunal’s decision turned on the Guidelines. This is particularly so in circumstances where it elected to substitute the Board’s condition with a formal caution. The question about the intersection between the imposition of the conditions and the operation of the Guidelines with respect to supervision of international medical graduates was moot.
Did the Tribunal misconstrue the operation of s 178?
By question A4, the applicant asks whether the Tribunal misconstrued the operation of s 178 ‘in dismissing the application to refer the question of the validity of that provision to the Supreme Court under s 98 of the VCAT Act when s 178 contains insufficient protection for health practitioners?’
Section 178 of the National Law provides:
178 National Board may take action
(1) This section applies if—
(a)a National Board reasonably believes, because of a notification or for any other reason—
(i)the way a registered health practitioner registered in a health profession for which the Board is established practises the health profession, or the practitioner’s professional conduct, is or may be unsatisfactory; or
…
(2)The National Board may decide to take one or more of the following actions (relevant action) in relation to the registered health practitioner or student—
(a)caution the registered health practitioner or student;
…
(c)impose conditions on the practitioner’s or student’s registration, including, for example, in relation to a practitioner—
(i)a condition requiring the practitioner to complete specified further education or training within a specified period; or
(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or
(iv)a condition requiring the practitioner to manage the practitioner’s practice in a specified way; or
(v)a condition requiring the practitioner to report to a specified person at specified times about the practitioner’s practice; or
(vi)a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
The submissions before the Tribunal in this respect focussed on whether s 178 of the National Law was invalid because it contained ‘insufficient protection’ for health practitioners.[42] At the Tribunal, Dr Fidge did not identify any arguable basis upon which the Tribunal could have concluded that s 178 might not be validly enacted, given the breadth of the legislative power of the State contained in s 16 of the Constitution Act 1975 (Vic).
[42]Outline of Submissions by the Applicant (dated 19 February 2022, filed in Z731/2021, Victorian Civil and Administrative Tribunal) (‘Applicant’s Submissions before the Tribunal’), [56]–[58] enclosed in Exhibit SN‑1 to the Affidavit of Siran J Nyabally (filed 3 May 2023 in S ECI 2022 04529, Supreme Court of Victoria) (‘Exhibit SN‑1’), 208–209.
The Tribunal correctly identified at [37] that the National Law contains ‘safeguards for the practitioner’, including that the Board must undertake a ‘show cause’ process and give a registered health practitioner the chance to make submissions before taking action under s 178,[43] and the right to appeal some decisions under s 178 to the Tribunal.[44] The Tribunal was correct to conclude at [37] that ‘Parliament has decided that there should be a low bar as the protection of the public is the paramount objective [of the National Law]. This does not make the provision [s 178] invalid.’
[43]As provided for by s 179 of the National Law.
[44]As provided for, in respect of the Board’s Decision, by s 199(1)(e) of the National Law.
There was no error in the Tribunal’s approach to the question of the validity of s 178, nor in its consequent refusal to refer the question of the validity of s 178 of the National Law to this Court as a preliminary question.
Does s 178 contravene the implied freedom of political communication?
In his written submissions, Dr Fidge faintly raises a matter, in support of question A4, that was not pressed by him before the Tribunal, and as to which there is no mention in his Notice of Appeal. He submitted that:
the Tribunal did not properly consider if s 178 is reasonably appropriate and adapted to advance its object and if s 178 limits or restricts the enjoyment of a constitutional freedom, specifically the implied freedom of political communication: McCloy v New South Wales (2015) 357 CLR 178 (at 3).[45]
[45]Applicant’s Submissions, [37].
There was no error in the Tribunal’s failure to consider whether s 178 of the National Law contravened the implied freedom of political communication contained in the Commonwealth Constitution. That is because, first, the implied freedom was not raised by the applicant before the Tribunal in submitting that s 178 was invalid.
Secondly, and in any event, s 178 of the National Law does not breach the implied freedom.
A challenge to the validity of an exercise of legislative power on this basis needs to be addressed by answering three questions:[46]
[46]McCloy v New South Wales (2015) 257 CLR 178, [2] (French CJ, Kiefel, Bell and Keane JJ). See also Hogan v Hinch (2011) 243 CLR 506, 542 [47] (French CJ), 555–6 [94]–[97] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
(a) Does the law, in its terms, operation or effect, effectively burden freedom of communication about government or political matters? (If ‘no’, then the law does not exceed the implied limitation.)
(b) If so, is the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? (If ‘no’, then the law exceeds the implied limitation.)
(c) If there is a legitimate purpose, is the law reasonably appropriate and adapted to serve the legitimate end, in a manner compatible with the maintenance of the constitutionally prescribed system of government? (If ‘no’, then the law exceeds the implied limitation.)
Here, even assuming that the first question might be answered in the positive, both the second and third questions must also be answered in the positive. It follows that s 178 of the National Law is not invalid.
Is the purpose of the law and the means adopted to achieve that purpose legitimate?
The purpose of the National Law is set out in s 3, and the guiding principles in s 3A. In summary, the purpose of the National Law is to establish a national registration and accreditation scheme for the regulation of registered health practitioners to provide for the protection of the public and public confidence in the safety of services provided by registered health practitioners. This purpose is, plainly, compatible with the maintenance of the constitutionally prescribed system of government.
Is the law reasonably appropriate and adapted to serve the legitimate end?
Section 178(1)(a)(i) of the National Law is also reasonably appropriate and adapted to serving a legitimate end, being the objective set out in s 3(2)(a) of the National Law. That is, it provides ‘for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered’.
It achieves this end by enabling a National Board to take limited action in respect of a health practitioner’s registration when the Board reasonably believes (relevantly) that the practitioner’s professional conduct is or may be unsatisfactory.
Contrary to Dr Fidge’s submissions, there are several protections inherent in the power to take action under s 178 which demonstrate that it is reasonably appropriate and adapted to serve its aim:
(a) action can only be taken based on a reasonable belief;
(b) before taking any action under ss 178 and 179, the National Law provides that the Board must give the practitioner notice of the proposed action and invite and consider submissions from the practitioner;
(c) the action that can be taken under s 178 is relatively minor, being limited to cautioning a practitioner, accepting an undertaking, imposing conditions on registration, or referring the matter to another entity;[47]
(d) restrictions on the practice of a health professional may only be imposed if it is necessary to ensure health services are provided safely and are of an appropriate quality;[48] and
(e) a decision to take the most serious action that can be taken under s 178 (the imposition of conditions on a practitioner’s registration) can be appealed by a registered practitioner to the Tribunal pursuant to s 199 of the National Law.
[47]More serious action, such as suspending or cancelling a practitioner’s registration or fining a practitioner can only be taken under other provisions of the National Law, which contain additional protections. See, for example, ss 155–9, 193–8.
[48]This is found at s 3A(2)(c), which must be taken into account pursuant to s 4 of the National Law.
Do the Tribunal’s orders compel Dr Fidge to support government health programs?
Question B3 raises substantially the same complaint as question B12 wherein Dr Fidge contends that the Tribunal misconstrued s 178 of the National Law (or misconstrued the National Law as a whole) in deciding to caution him, when the applicant says that s 178 (or the National Law as a whole) ‘cannot compel [him] to support Victorian or Australian Government health programs’.[49]
[49]This is the way that question B3 is characterised, question B12 contends that ‘there is no instrument that… can compel [the applicant] to support any program of the Victorian or Australian Government’.
Neither question identifies any error of law by the Tribunal.
First, each question rests on a false premise: that the Tribunal’s decision operates to compel the applicant to support government health programs. The Tribunal’s decision does not have this effect, it merely cautions the applicant to take care in his social media communications to ensure that his communications achieve the aims he said motivated his publication of the Facebook Post.
Secondly, and in any event, Dr Fidge has not established any error in the Tribunal’s construction or application of s 178 of the National Law. It was open to the Tribunal to conclude, as it did, that Dr Fidge’s professional conduct may have been unsatisfactory, for the reasons it sets out at [98].
Did Dr Fidge engage in professional conduct or personal conduct?
By question B8, Dr Fidge effectively contends that the Tribunal misconstrued s 178 as permitting it to take action in respect of conduct that was not ‘professional conduct’, but was rather personal conduct.[50]
[50]At the hearing, Dr Fidge referred to a regulatory guide published by AHPRA and the National Boards dated 2023 which he appeared to argue led the Tribunal into error in respect of its interpretation of the meaning of ‘professional conduct’ (Transcript of the 7 March 2024 Supreme Court Hearing, 21, 91–3). Notwithstanding the fact that the regulatory guide referred to by the applicant post‑dated the Tribunal’s Decision (though the June 2022 version of the guide which was current at the time of the Tribunal’s Decision was subsequently provided to the Court), it appears that neither party tendered a copy of this document to the Tribunal, nor does the Tribunal consider or refer to it in any way. As such, I consider this aspect of the applicant’s submissions to be without merit.
No error is established by the Tribunal’s finding that the applicant’s conduct in publishing the Facebook Post was ‘professional conduct’.[51]
[51]Tribunal’s Decision, [59]–[71].
As noted by the applicant, ‘professional conduct’ is not defined in the National Law.
However, the provision must be interpreted in the context of the National Law as a whole. Section 178 of the National Law is directed to ‘professional conduct’ that ‘is or may be unsatisfactory’. Assistance may be taken, in interpreting the provision, from the definitions of similar concepts in the National Law, including ‘professional misconduct’ and ‘unprofessional conduct’. Both of those terms are defined in s 5 of the National Law, in a way that makes clear that conduct can fall within the ambit of the National Law without being conduct that occurs directly in the course of clinical practice:
(a) the definition of ‘professional misconduct’ includes at sub‑s (c):
conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
(b) the definition of ‘unprofessional conduct’ is:
professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes–
…
(c)the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession;
While it can be accepted that the line between professional conduct and conduct by a professional that does not comprise professional conduct may in some cases be a difficult one to draw, there is no such difficulty in this case. The Tribunal’s conclusion that the applicant’s conduct was ‘professional conduct’ was open to it having regard to its findings that:
(a) Dr Fidge published the Facebook Post;[52]
[52]Tribunal’s Decision, [58].
(b) the Facebook Post was published in his own name;[53]
[53]Tribunal’s Decision, [58], [60].
(c) Dr Fidge said at hearing that he published the Facebook Post to seek to engage with people who were vaccine hesitant, the Tribunal accepted that this was the his motivation in publishing the post, and that he did so in his capacity as a medical practitioner;[54]
(d) the Facebook page (on which the Facebook Post was published) identified the applicant as a medical practitioner — since it stated that he was ‘Practice Principal [omitted] General Medical Centre’;[55] and
(e) Dr Fidge published a subsequent Facebook post which drew on and referred to his expertise as a medical practitioner.[56]
[54]Tribunal’s Decision, [64], [71].
[55]Tribunal’s Decision, [66], [71].
[56]Tribunal’s Decision, [71].
Indeed, having regard to these findings, the Tribunal’s conclusion was open to it.
Did the Tribunal act unreasonably in cautioning the applicant?
By question B11, Dr Fidge asks whether the Tribunal acted unreasonably in the Wednesbury sense in cautioning the applicant ‘for publishing an observation … that was substantially true, evidence‑based and in line with the best available health advice’?
This question seeks to engage impermissibly in a review of the merits of the Tribunal’s Decision. The question cannot accordingly be entertained.
Dr Fidge also seeks to have the Court make a finding of fact (that the Facebook Post was accurate and/or truthful), and that an approved COVID‑19 vaccine was ‘so dangerous and lacking in efficacy that it was withdrawn from the Australian market shortly after it was introduced’.[57] This was not a finding of fact made by the Tribunal, nor was it a finding of fact Dr Fidge has established the Tribunal was required to make, particularly in circumstances where (as an expert Tribunal) the Tribunal was entitled to draw on its own expertise in considering its decision.[58] It is a finding for which there is no evidence in this proceeding, and which it is not within this Court’s function to determine on any appeal.
[57]Notice of Appeal, [46].
[58]Kalil v Bray (1977) 1 NSWLR 256, 261 (Street CJ, with whom Moffitt P and Glass JA agreed).
In fact, while Dr Fidge’s evidence and submissions were not entirely consistent on the point of the motivation for publishing the Facebook Post,[59] he ultimately submitted at hearing that the Facebook Post was ‘an effective method of communicating with people who are vaccine hesitant in order to engage with them, in order to get them vaccinated’.[60] This submission was accepted by the Tribunal. That is, Dr Fidge ultimately submitted (and the Tribunal accepted) that his motivation in publishing the Facebook Post was to engage with vaccine hesitant individuals[61] so as to persuade them to take the vaccine.
[59]Dr Fidge submitted, on the one hand, that the vaccine was ‘so dangerous’ but COVID‑19 ‘so benign’ (see Applicant’s Submissions before the Tribunal, [4]–[5] enclosed in Exhibit SB‑1, 201). But on the other hand he submitted that he had been motivated in publishing the Facebook Post to convince vaccine hesitant individuals to be vaccinated (see Transcript of Proceedings, Fidge v Medical Board of Australia (Victorian Civil and Administrative Tribunal, Z731/2021, Members Boddison, Warfe and Williams, 3 March 2022) (‘Transcript of the 3 March 2022 Tribunal Hearing’)), 40. Dr Fidge offered no explanation as to why he would wish to persuade patients to take a ‘dangerous’ vaccine.
[60]Transcript of the 3 March 2022 Tribunal Hearing, 40.
[61]Tribunal’s Decision, [64]–[65], [71].
It was open to the Tribunal to make this finding, given Dr Fidge’s evidence, rather than to make findings that (in fact) his motivation in publishing the post was to point out (as he now claims) that the COVID‑19 vaccine in question was dangerous and lacking in efficacy. No error is established by this ground.
Questions A5, B9 and B10
Questions A5, B9 and B10 seek to impugn the Tribunal’s construction and the validity of the Guidelines, Joint Statement and Position Statement. For the following reasons, each of these questions and associated grounds are without merit and have no prospect of success.
Did the Tribunal misconstrue the operation of the Guidelines?
By question A5, Dr Fidge asks whether the Tribunal misconstrued the operation of the Guidelines. He submitted that:[62]
The Tribunal failed to recognise that the operation of [the Guidelines] published pursuant to s 39 of the National Law impermissibly fetters the Board, and that the fettering of the Board is a question that required referral to the Court.
[62]Applicant’s submissions, [46].
The underlying complaint about the Guidelines is that they have the practical effect of precluding a registered medical practitioner from supervising an international medical graduate while conditions are in place on the supervising practitioner’s registration. The applicant is correct that the Guidelines have this effect, which is described by Moore J in Medical Board of Australia v Fidge [2022] VSC 768.
The Guidelines could have had the effect, in this case, of precluding the applicant from supervising international medical graduates if the Tribunal affirmed the Board’s Decision. However, that did not occur. The Tribunal substituted the Board’s Decision with an order that did not involve the imposition of conditions on the applicant’s registration.
It follows that in this case, the Guidelines do not have the effect complained of by the applicant, and that the question of their validity is a purely hypothetical one that neither the Tribunal nor the Court should answer in this proceeding.[63] The Tribunal did not err when reaching that conclusion,[64] and nor did it err in refusing to refer the question of the validity of the Guidelines (or s 39 of the National Law, pursuant to which the Guidelines were made) to this Court.
[63]The making of orders that are hypothetical in the sense that they would have ‘no foreseeable consequences for the parties’ are orders which are beyond the ‘boundaries of judicial power’: Ainsworth v Criminal Justice Commission (1992) 175 CLR 565, 581–2.
[64]Tribunal’s Decision, [47].
Is the Joint Statement and/or the Position Statement invalid?
By questions B9 and B10, Dr Fidge asks whether the Joint Statement and Position Statement are invalid. Dr Fidge contends that the Tribunal ‘erred in law’ by relying on each statement.[65]
[65]Notice of Appeal, [35], [40].
It is a complete answer to these grounds to note that the Tribunal did not, in fact, rely on either statement in its reasons. The question of their validity is therefore entirely hypothetical and should not be addressed.
Further, and in any event, the applicant has advanced no argument capable of supporting the submission that either statement is ‘invalid’.
First, the statements are not legislation, and the publication of either cannot have contravened s 51(xxiiiA) of the Commonwealth Constitution as apparently claimed.
Secondly, and in any event, neither statement compels any medical practitioner to carry out work or provide services; rather, the statements each provide information to assist registered medical practitioners meet prescribed standards of conduct. Thus, their publication does not constitute any form of civil conscription.
Questions B1 and B2
Questions B1 and B2 seek to challenge the adoption of the National Law on the basis that the legislative arrangements are unconstitutional.
As noted by the applicant, the National Law operates as the law in Victoria by virtue of s 4 of the Adoption Act.
Contrary to the submissions of Dr Fidge, there is no impediment to the Victorian Parliament having enacted the Adoption Act, nor to s 4 of the Adoption Act adopting the National Law as a law of Victoria.
The Victorian Parliament has broad powers, as set out in s 16 of the Constitution Act 1975 (Vic), to ‘make laws in and for Victoria in all cases whatsoever’. The National Law is, by virtue of s 4 of the Adoption Act, a law ‘in’ Victoria, and is a law ‘in’ Victoria because the Parliament has passed the Adoption Act.
For completeness, I note that the submissions that the National Law is unconstitutional (under the Commonwealth Constitution) was recently made before his Honour Justice Watson in Peers v Fletcher [2024] VSC 427. I respectfully agree with his Honour’s reasoning in that decision upholding the constitutionality of the National Law under the Commonwealth Constitution. I would emphasise his remark at [19] that ‘[i]t has long been recognised that cooperative legislative arrangements are permissible’.[66]
[66]His Honour referred to the High Court decision of R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535.
These questions and associated grounds are entirely without merit and were bound to fail accordingly.
Question B4
By question B4, Dr Fidge alleges that the National Law has no provision with the power to prevent the applicant from discussing political matters in his private capacity on Facebook or elsewhere.
As discussed at [100]–[108] above, the implied freedom of political communication is not, contrary to the premise underlying question B4, a personal right held by an individual; rather, it is a limit on the legislative power of the parliaments of the Commonwealth and the States.[67] Nor is the implied freedom some kind of mandatory relevant consideration under legislation.[68]
[67]See, eg, Comcare v Banerji (2019) 267 CLR 373, [20] (Kiefel CJ, Bell, Keane and Nettle JJ) (‘Banerji’).
[68]See, eg, Banerji, [45]; Buckley v Council of the Law Society of New South Wales [2022] NSWSC 328, [107].
There was, accordingly, no error in the Tribunal failing to have regard to the implied freedom of political communication in making its orders.
Question B4 and its associated grounds are therefore without merit and bound to fail.
CONCLUSION
I am not satisfied that any of the questions raised by Dr Fidge and their supporting grounds have merit.
For the foregoing reasons, I refuse leave to appeal.
The application will be dismissed.
I will provide the parties with an opportunity to make submissions as to any application for costs.
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