John Blake Pavior Lewis v Minister of State for Health

[1985] FCA 377

Re: JOHN BLAKE PAVIOUR LEWIS
And: THE MINISTER OF STATE FOR HEALTH
No. NSW G401 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
McGregor J.

CATCHWORDS

Administrative Law - judicial review - decisions made under the Health Insurance Act 1973 s.19D - whether offences of which applicant convicted are relevant offences within the meaning of the Health Insurance Act s.19B(1) - operation of the Crimes Act 1914 s.5 - consideration of the word "deemed" - effect of a plea of guilty.

Administrative Decisions (Judicial Review) Act 1977

Crimes Act 1914 ss.5, 6, 7, 7A

Crimes (Internationally Protected Persons) Act 1976 s.8(5)

Health Insurance Act 1973 ss.19B, 19C, 19D, 129.

HEARING

SYDNEY
#DATE 26:4:1985

ORDER

1. The application is dismissed.

2. The applicant is to pay the respondent's costs.
   
   Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

By application filed on 23 November 1984 JOHN BLAKE PAVIOUR LEWIS (applicant) sought, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) (s.5), an order of review of the decision dated 23 August 1984 of the respondent, THE MINISTER OF STATE FOR HEALTH (the Minister), (expressed in written directions) under ss.19D(1) and (3) of the Health Insurance Act 1973, and consequential orders.

It is common ground that on 3 July 1984 before the Wagga Wagga Court of Petty Sessions the applicant was charged pursuant to the Health Insurance Act 1973, pleaded guilty and was convicted of 12 offences which, except for names and dates, are in identical terms. Hereunder is set out a copy of the Summons in respect of one such offence -

"SUMMONS -DIVISIONS 1 AND 2, "JUSTICES ACT, 1902"

Act Health Insurance 1973 Section 129(1) Commonwealth Crimes 1914

TO John Blake Pavious LEWIS of 56 Brookong Avenue, WAGGA WAGGA . . . . .

WHEREAS information hath this day been laid before the undersigned, one of Her Majesty's Justices of the Peace in and for the said State of New South Wales, for that you between the 25th day of April 1983, and the 5th day of May 1983 at Wagga Wagga was by an act, indirectly knowingly concerned in the commission of an offence against a law of the Commonwealth, by Joyce Edith Marcia LEWIS in that Joyce Edith Marcia LEWIS did between the 25th day of April 1983 and the 5th day of May 1983 at Wagga Wagga in the State of New South Wales, issue to William HASLER a document, to wit, Memorandum of Fees due for Professional Services, that was false in a material particular and capable of being used in connexion with an application for payment of an amount under the Health Insurance Act, 1973.

These are therefore to command you in Her Majesty's name, to be and appear on Tuesday the 17th day of January 1984, at ten of the clock in the forenoon, at the Wagga Wagga Court of Petty Sessions in the said State, before such Stipendiary Magistrate for the said State, as may then be there, to answer to the said Information, and to be further dealt with according to law.

GIVEN under my Hand and Seal this 16th day of November in the year of Our Lord one thousand nine hundred and eighty three at Queanbeyan in the said State.

SIGNED ? L.S.

Justice of the Peace in and for the State of New South Wales"

(* Applicant's name in these proceedings is sometimes "Paviour" and sometimes "Pavious").

After his conviction, the Director-General of Health forwarded to the applicant a letter dated 23 August 1984, worded as follows, omitting formalities -

"As a result of your conviction, on 3 July 1984 before the Wagga Wagga Court of Petty Sessions, pursuant to section 5 of the Commonwealth Crimes Act 1914 of twelve offences against section 129(1) of the Health Insurance Act 1973 ("the Act") committed after 1 November 1982, you will become a 'fully disqualified practitioner' within the meaning of section 19B of the Act on and from 29 August 1984 for a period of three years.

Accordingly, I must inform you that any professional service rendered by you, or on your behalf, during the period 29 August 1984 to 28 August 1987 will be ineligible for Medicare benefits. I enclose for your information a copy of a statement by the Minister of State for Health under sub-section 19C(2) of the Act setting out particulars of the disqualification.

I also enclose:

a Direction by a delegate of the Minister of State for Health under sub-section 19D(1) that you shall not render a professional service within the meaning of the Act unless you cause to be given to the patient a copy of the Notice attached to this Direction. The Direction further provides that you take such steps as may be necessary to ensure that the particulars and effects of the disqualification set out in the attached Notice are understood by the patient or by any other person caring for the patient.

a Direction by a delegate of the Minister of State for Health under sub-section 19D(3) of the Act requiring you to display the accompanying Notices in the locations specified in the said Direction from and including 29 August 1984 until 28 August 1987.

The Act provides you with the right to apply to the Minister for Health, requesting moderation of the disqualification during the currency of the disqualification. A copy of the relevant provision of the Act, sub-section 19B(9), is attached for your information."

The Direction pursuant to s.19D(1), the Notice attached to it and the Direction pursuant to s.19D(3) were in the following terms -

"HEALTH INSURANCE ACT 1973

DIRECTION UNDER SUB-SECTION 19D(1)

To Dr. John Blake Pavious Lewis: I William Tydd Lind Taylor, delegate of the Minister of State for Health, hereby direct, in pursuance of sub-section 19D(1) of the Health Insurance Act 1973, that from and including 29 August 1984 until 28 August 1987, you, or any person acting on your behalf, shall not render a professional service, being a professional service within the meaning of the Act, unless, before commencing to render that professional service, you or the person acting on your behalf, causes to be given to the person to whom the professional service is to be rendered, a copy of the Notice attached hereto;

and that in any case where you or any person acting on your behalf, has reasonable grounds for believing that the person to whom a professional service is to be rendered is, or may be, unable to read and understand the attached Notice, you or the person acting on your behalf, shall cause to be taken such steps as are reasonable in all the circumstances to inform the person, or if that person is in the care of another person to inform that other person, of the particulars of the disqualification set out in the attached Notice, and to explain to the person, or to that other person, as the case requires, the effects of the disqualification as are set out in the attached Notice.

dated this 23rd day of August 1984."

"NOTICE TO PATIENTS

ON 3 JULY 1984, DR JOHN BLAKE PAVIOUS LEWIS WAS CONVICTED OF TWELVE 'RELEVANT OFFENCES' FOR THE PURPOSES OF SECTION 19B OF THE HEALTH INSURANCE ACT 1973.

DR JOHN BLAKE PAVIOUS LEWIS IS, BY VIRTUE OF THE PROVISIONS OF SECTION 19B OF THAT ACT, A FULLY DISQUALIFIED PRACTITIONER FOR THE PERIOD FROM 29 AUGUST 1984 TO 28 AUGUST 1987.

DURING THAT PERIOD, MEDICARE BENEFITS ARE NOT PAYABLE FOR ANY PROFESSIONAL SERVICES RENDERED TO YOU BY, OR ON BEHALF OF, DR JOHN BLAKE PAVIOUS LEWIS."

"HEALTH INSURANCE ACT 1973

DIRECTION UNDER SUB-SECTION 19D(3)

To Dr John Blake Pavious Lewis:

I William Tydd Lind Taylor, Delegate of the Minister of State for Health, hereby direct you, in pursuance of sub-section 19D(3) of the Health Insurance Act 1973 to display one of the Notices attached hereto in each of the waiting rooms of your surgeries at:-

56 Brookong Avenue, Wagga Wagga, NSW 75 Melba Street, Downer, ACT 12 Lindsay Terrace, Kadina, SA 37 Curtin Street, Griffith, NSW 329 Olive Street, Albury, NSW;

and I direct that each of the said Notices be displayed by fixing it to the wall of the said waiting rooms in such manner and in such position that it is clearly visible to all prospective patients on entering the said waiting rooms during any period that you or an agent or an employee are in attendance at that surgery;

and I direct that you so display the said Notice at each of the said addresses from and including 29 August 1984 until 28 August 1987 or until you cease to practise medicine at that address, whichever first occurs.

Dated this 23rd day of August 1984."

There is no suggestion that the Directions or Notices were other than in the form authorised by the Health Insurance Act and given to the applicant with due formality.

The applicant claims that he is "aggrieved" within the meaning of the ADJR Act, s.3(4) because -

"1. The offences of which the Applicant was convicted in the Wagga Wagga Court of Petty Sessions on 3rd July, 1984 are not "relevant offences" within the meaning, or for the purposes of the disqualification provisions, of the Health Insurance Act, 1973.

2. The Applicant is not a 'convicted practitioner' within the meaning of Section 19B(2) of the Health Insurance Act, 1973.

3. The Applicant is not a "fully disqualified practitioner" within the meaning of Section 19B of the Health Insurance Act, 1973."

The applicant in his application seeks -

"1. A Declaration that the offences of which the Applicant was convicted in the Wagga Wagga Court of Petty Sessions on 3rd July, 1984, are not 'relevant offences' within the meaning, or for the purposes of the disqualification provisions, of the Health Insurance Act, 1973.

2. A Declaration that the Applicant is not a 'convicted practitioner' within the meaning of Section 19B(2) of the Health Insurance Act, 1973.

3. A Declaration that the Applicant is not a 'fully disqualified practitioner' within the meaning of Section 19B of the Health Insurance Act, 1973.

4. A Declaration that the direction of William Tydd Lind Taylor, as the delegate of the Minister of State for Health dated 23rd August, 1984 under Section 19D(1) of the Health Insurance Act, 1973 to the Applicant is invalid and of no force or effect.

5. A Declaration that the direction of William Tydd Lind Taylor, as the delegate of the Minister of State for Health dated 23rd August, 1984 under Section 19D(3) of the Health Insurance Act, 1973 to the Applicant is invalid and of no force or effect.

6. . . .

7. . . ."

It was pointed out during the hearing that the application by the applicant is, in terms of s.11 of the ADJR Act, out of time; but senior counsel for the Minister expressly disavowed any reliance upon this. It is agreed that I am to accept that the parties request the Court to allow the application to be heard as if filed within time. In effect the parties agree that the time for lodging the application is extended to allow this hearing. I proceed accordingly.

Under the heading -

"Medicare benefit not payable in respect of professional services rendered by or on behalf of disqualified practitioners"

s.19B, inserted by Act No. 49 of 1982, of the Health Insurance Act 1973 sets out certain definitions, including -

"(1) In this section, unless the contrary intention appears -

. . . .

'disqualification' means disqualification for the purposes of this section;

'disqualified practitioner' means a fully disqualified practitioner or a partly disqualified practitioner;

'fully disqualified practitioner' means a practitioner who is disqualified for the purposes of this section other than a partly disqualified practitioner;

. . . .

'relevant conviction day', in relation to a convicted practitioner, means the day on which the practitioner became a convicted practitioner;

'relevant offence' means -

(a) an offence against section 129, 129AA or 129AAA of this Act; or

(b) an offence against -

(i) section 6, 7 or 7A of the Crimes Act 1914; or

(ii) sub-section 86(1) of that Act by virtue of paragraph (a) of that sub-section,

being an offence that relates to an offence referred to in paragraph (a),

that is committed after the commencement of this section.

. . . .

(2) A practitioner becomes a convicted practitioner for the purposes of this section if -

(a) in the case of a practitioner who has not previously been convicted of a relevant offence - he is simultaneously convicted of 2 or more relevant offences; or

(b) in the case of a practitioner who has previously been convicted of one relevant offence only - he is convicted of another relevant offence or of 2 or more other relevant offences.

. . . .

(6) A medicare benefit is not payable in respect of a professional service if -

(a) at the time when the service was rendered the person who rendered the service, or the practitioner on whose behalf the service was rendered, was a fully disqualified practitioner; or

(b) at the time when the service was rendered the person who rendered the service, or the practitioner on whose behalf the service was rendered, was a partly disqualified practitioner and the service was a professional service, or was included in a class of professional services, in relation to which the disqualification of the practitioner applied.

(7)-(23). . . ."

Sub-section (7) sets out how the period of disqualification referred to in the letter of 23 August 1984 is calculated.

Other relevant sections include. -

"19C. (1) . . . .

(2) As soon as practicable after the day that is the prescribed day in relation to a convicted practitioner, the Minister shall cause to be prepared a statement setting out particulars of the disqualification resulting from the practitioner becoming a convicted practitioner including the reasons for the disqualification and explaining the effects of that disqualification.

(3)-(10) . . . .

19D.(1) Subject to this section, the Minister may, by instrument in writing served, either personally or by post, on a convicted practitioner after the day that is the prescribed day in relation to the practitioner, direct that, with effect from and including such day as the Minister specifies in the direction, being a day not earlier than the day on which the practitioner becomes a disqualified practitioner, the practitioner, or a person acting on behalf of the practitioner, shall not render a specified professional service or a professional service included in a specified class of professional services, being a professional service or professional services for which, under section 19B, a medicare benefit is not payable, unless, before commencing to render that professional service -

(a) in a case to which paragraph (b) does not apply - the practitioner or the person acting on his behalf causes to be given to the person to whom the professional service is to be rendered a copy of such notice as is furnished to the practitioner with the instrument, being a notice setting out particulars of the disqualification of the practitioner and explaining such of the effects of that disqualification as the Minister considers appropriate; or

(b) in a case where the practitioner or the person acting on his behalf has reasonable grounds for believing that the person to whom the service is to be rendered is, or may be, unable to read and understand the notice referred to in paragraph (a) - the practitioner or the person acting on his behalf causes to be taken such steps as are reasonable in all the circumstances to inform the person, or, if that person is in the care of another person, to inform that other person, of the particulars of the disqualification set out in that notice, and to explain to the person or to that other person, as the case requires, such of the effects of the disqualification as are set out in that notice.

(2) . . . .

(3) Subject to this section, the Minister may, by instrument in writing served, either personally or by post, on a convicted practitioner after the day that is the prescribed day in relation to the practitioner, direct the practitioner to display in such place as is, or such places as are, and in such manner and during such period as is, specified in the instrument, such notice as is, or such notices as are, furnished to the practitioner with that instrument for the purpose of being displayed by him.

(4)-(12) . . . .

. . . .

129(1) A person shall not make a statement, either orally or in writing, or issue or present a document, that is false or misleading in a material particular and is capable of being used in, in connexion with or in support of, an application for approval for the purposes of this Act or for payment of an amount under this Act.

Penalty $10,000 or imprisonment for 5 years.

(1A) . . . .

. . . .

(3) In a prosecution of a person for an offence against this section, it is a defence if the person proves that he did not know, and had no reason to suspect, that the statement, document, return or information, made, issued, presented or furnished by him was false or misleading, as the case may be.

. . . ."

If the offences of which the applicant was convicted were "relevant offences" s.19B applied to the applicant. It is not disputed that the applicant ceased on 31 July 1984 to be entitled to make application under that section to the Minister for a shorter period of disqualification; or that the commencement of the period during which the applicant was disqualified for the purposes of s.19B was 29 August 1984, as appears in the "NOTICE TO PATIENTS" set out above.

Senior counsel for the Minister and senior counsel for the applicant agreed that the matter may be resolved by the resolution of one issue, viz. -

Whether or not within the meaning of s.19B(1) of the Health Insurance Act the applicant has committed offences against s.129 of that Act.

Sections of the Crimes Act 1914 which have been referred to include -

"5. Any person who aids, abets, counsels, or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against any law of the Commonwealth or of a Territory, whether passed before or after the commencement of this Act, shall be deemed to have committed that offence and shall be punishable accordingly.

6. Any person who receives or assists another person, who is, to his knowledge, guilty of any offence against a law of the Commonwealth or of a Territory, in order to enable him to escape punishment or to dispose of the proceeds of the offence shall be guilty of an offence.

Penalty: Imprisonment for 2 years.

7. Any person who attempts to commit any offence against any law of the Commonwealth or of a Territory, whether passed before or after the commencement of this Act, shall be guilty of an offence and shall be punishable as if the attempted offence had been committed.

7A. If any person -

(a) incites to, urges, aids or encourages; or

(b) prints or publishes any writing which incites to, urges, aids or encourages.

the commission of offences against any law of the Commonwealth or of a Territory or the carrying on of any operations for or by the commission of such offences, he shall be guilty of an offence.

Penalty: $2000 or imprisonment for 12 months, or both."

Senior counsel for the applicant submitted that the applicant had not "committed" any offence to which the definition of "relevant offence" in s.19B referred. By the operation of s.5 of the Crimes Act the applicant had been deemed to have committed offences against s.129 of the Health Insurance Act and had been convicted of such offences accordingly. In counsel's submission s.19B required actual commission of an offence as opposed to "deemed" commission. He referred to Mallan v. Lee (1949) 80 C.L.R. 198 per Latham C.J. at pp.211-212; Cann v. Gray (1978) 22 ALR 267. He submitted s.5 of the Crimes Act deemed offences to have been committed only for the purposes of the Crimes Act; the "fictitious" committing of an offence for the purposes of the Crimes Act should not be imported into another statute, e.g. the Health Insurance Act. He referred to a difference between deeming for "fictitious purposes" and deeming for "factitious" purposes. He pointed to the inclusion in the definition of "relevant offence" in s.19B(1) of an offence against ss.6, 7 or 7A of the Crimes Act as indicating, in effect, the intention of the Legislature to exclude offences deemed to have been committed (under s.5). He referred to Yorke v. Lucas (1983) 49 ALR 672 as authority for the view that a person charged with aiding and abetting need not know that the facts involved constituted an offence or have the criminal intent to commit the offence. This, he argued, indicated a clear distinction between an aider and abettor, and a principal. The Legislature, in counsel's submission, "deliberately decided" not to deprive a medical practitioner of his livelihood "under" s.5 in cases where he might not have known the facts constituting an offence and might not have had the requisite guilty intent.

Senior counsel for the Minister, addressing himself to an argument which he had understood the applicant's counsel to offer, submitted that s.5, unlike, e.g. ss.6 and 7, of the Crimes Act did not create an offence, citing in support the remarks of Ligertwood J. in Lee v. Mallan (1949) S.A.S.R. 17 at pp. 32-33, 35. The Legislature, in his submission, had recognized this in s.19B of the Health Insurance Act; the absence of "an offence against s.5" explained why there was reference to e.g. ss.6 and 7 of the Crimes Act in the definition of "relevant offence", but not to s.5. He referred to Thomas v. Ducret (1984) 52 ALR 269; The King v. Goldie; Ex parte Picklum (1937) 59 C.L.R. 254. He submitted that, by the operation of s.5, the applicant had committed offences against s.129.

It is not necessary to set out in further detail the arguments of counsel.

Hereafter the words, "aids and abets", and their derivatives are used as abbreviated forms of the words appearing in s.5. of the Crimes Act, viz. "aids, abets, counsels, or procures, or by act or omission is in any way directly or indirectly knowingly concerned in", and related terms.

The crux of the issue in the present case is whether an offence against s.129 (referred to in the definition of "relevant offence" in s.19B(1) of the Health Insurance Act) that is deemed to have been committed by operation of the Crimes Act s.5 is within the ambit of s.19B. This requires determining the scope of operation of s.5 and examining the function of the word "deemed" in this section.

The statement of offences in the Crimes Act is indicated by the presence (including in ss. 6, 7 and 7A) of the formula, "shall be guilty of an. . . .offence". This is absent from s.5: the section does not provide that any person who aids and abets the commission of any offence against any law of the Commonwealth shall be "guilty of an offence"; it deems such a person to have committed "that offence", i.e. the offence the commission of which he has aided and abetted and which exists independently of s.5. The language of s.5 indicates that it was not intended or designed to enunciate a distinct or separate offence although it has the effect that conduct to which it refers may lead to conviction of offences established by other laws of the Commonwealth - and attract the same penalties. Counsel adverted to the wording of s.8(5) of the Crimes (Internationally Protected Persons) Act 1976. That Act refers to "an offence created by section 5. . . .of the Crimes Act"; it describes, I suggest, the effect the Legislature attributed to aiding and abetting, rather than it indicates that the Legislature by its enactment of s.5 was introducing an additional offence. And the offence thus "created" - by the process of "deeming" - is an offence against the Crimes (Internationally Protected Persons) Act. There could, of course, be good reason for making explicit in s.8(5) of the Crimes (Internationally Protected Persons) Act, even unnecessarily, the applicability of s.5 of the Crimes Act. The Crimes (Internationally Protected Persons) Act apparently seeks to implement obligations Australia may have under the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents. It would not be inappropriate for the Legislature to delineate in the one enactment the extent to which crimes against protected persons are proscribed.

In Walsh v. Sainsbury (1925) 36 C.L.R. 464 Isaacs J., referring to s.5 of the Crimes Act stated at p.477 -

"That section, construed in accordance with a long-continued and consistent judicial and legislative view, is merely an aiding and abetting section. It creates no new offence".

Starke J. and Dixon J. (as he then was) appear to accept this construction of s.5 in The King v. Goldie; Ex parte Picklum (supra). In R. v. Crossley (1948) 65 W.N. (N.S.W.) 225 Jordan C.J. STATED AT P.225 -

"There are no degrees of guilt in misdemeanour. Aiders and abettors are liable as principals and may be charged and convicted as such: R. v. Waudby (1895) 2 Q.B. 482. . . .Provisions such as are contained in s.5 of the Commonwealth Crimes Act, 1914,. . . .do not create substantive offences but are declaratory of the common law and procedural in their nature. Ex parte Coorey (1945) 45 S.R. 287 at pp.295-6."

See also per Ligertwood J. in Lee v. Mallan (supra) at pp.33-35.

Thus, such words as "offence against s.5 of the Crimes Act" (or as Mr. Ireland's affidavit of 19 October 1984 expressed it - "under s.5 of the. . .Crimes Act. . . .") would have, strictly speaking, no reference - of. the remarks of Dixon J. (as he then was) in Mallan v. Lee (supra) at p.216. Therefore, the absence of these words in the definition of "relevant offence" in s.19B does not mean that this section does not accept or envisage that there may be commission of relevant offences by aiding and abetting.

The word "deemed" has frequently been the subject of judicial consideration. It has various functions, not all of which are relevant here. In Muller v. Dalgety & Co. Ltd. (1909) 9 C.L.R. 693 a question for determination was whether s.9D of the Immigration Restriction Act 1901 which deemed any person falling within a certain description to be a "stowaway" was to be read as an exhaustive definition, or as extending sub modo the sense which would otherwise be given to the word "stowaway". Griffiths C.J. said at p.696 -

"The word "deemed" may be used in either sense, but it is more commonly used for the purpose of creating what James L.J. and Lord Cairns L.C. called a "statutory fiction" (see Hill v. East and West India Dock Co.), that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate. When used in that sense it becomes very important to consider the purpose for which the statutory fiction is introduced."

Windeyer J. in Hunter Douglas Pty. Ltd. v. Perma Blinds (1969) 122 C.L.R. 49 (Hunter Douglas) distinguished between the function of the word "deemed" in statutory definitions so as to create "statutory fictions" and its other functions. He said at p.65, referring to remarks of Griffiths C.J. quoted above -

"After all, to deem means simply to judge or reach a conclusion about something. . . . . .The words "deem" and "deemed" when used in a statute thus simply state the effect or meaning which some matter or thing has - the way in which it is to be adjudged. This need not import artificiality or fiction."

Applying Windeyer J.'s analysis in Hunter Douglas the purpose or effect of the word "deemed" in s.5 of the Crimes Act could be described as to "state" that aiding and abetting the commission of an offence against a law of the Commonwealth is to be "adjudged" (i.e. the conclusion to be reached is that there has been) a commission of that offence. Thus, if the effect or operation of s.5 extends to the Health Insurance Act s.19B, s.5 ensures that by aiding and abetting the commission of a s.129 offence, an "offence against s.129. . .is committed".

Other authorities in which the word "deemed" is discussed are The Queen v. Norfolk County Council 60 L.J.G.B. 379 per Cave J. at pp.380-381 to which Griffiths C.J. referred in Muller v. Dalgety (supra); St. Aubyn v. Attorney-General (1952) A.C.15 per Lord Radcliffe at p.53; Barclays Bank Ltd. v. Inland Revenue Commissioners (1961) A.C. 509.

Applicant's counsel submitted that it was implicit in s.5 that it operated "for the purposes of the Crimes Act" and for the purposes of that statute only. It is necessary to bear in mind in construing s.5 that, "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do." (Thompson v. Goold & Co. (1910) A.C. 409 per Lord Mersey at p.420, referred to in Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1980) 147 C.L.R. 297 per Aicken J. at p.337). In my view there is no warrant or occasion to read into s.5 the words "for the purposes of the Crimes Act". Section 5 equates aiding and abetting the commission of "any offence against a law of the Commonwealth" (and not only offences against the Crimes Act) with the actions of a principal offender. In the terms of s.5 the aider and abettor is "punishable accordingly". It is difficult to see how the aider and abettor of an offence provided for in an enactment other than the Crimes Act can be "punished accordingly" unless the deeming effect of s.5 extends to the penalty provisions in that other legislation. In Mallan v. Lee (supra) to which counsel referred, Latham C.J. discussed s.5. He said at p.212 (perhaps by way of obiter) that as the section provided no penalty for any offence, it was necessary to look at the "law of the Commonwealth" against which "the offence has been committed" and the law relating to prosecutions for that offence. This included in that case the Income Tax Assessment Act s.320(2), a limitation section which provided that a prosecution can be instituted within six years of the "commission of the offence". (Note however comment of Latham C.J. that the Crimes Act s.23(3) (now repealed) applied the provision to persons knowingly concerned in the commission of the offence).

The purposes of the Legislature in enacting s.5 of the Crimes Act and s.19B of the Health Insurance Act can be examined to ascertain whether consistently with those purposes the deeming effect of s.5 extends to s.19B. In Ex parte Walton. In re Levy (1881) 17 Ch.D. 746 Lord James stated at p.756 -

"When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to."

Latham C.J. in Mallan v. Lee (supra) at p.211 described the purpose of s.5 of the Crimes Act as "to make it possible for a person to be prosecuted for an offence against another law of the Commonwealth and to be punished as for that offence". The aider and abettor is as culpable as the principal offender. The purposes of the Legislature in enacting s.19B of the Health Insurance Act (followed by the ss. 19C and 19D consequences) include deterrence of conduct by practitioners that facilitated abuse of the system of payment of medicare benefits with consequent loss of revenue to the Commonwealth. A distinction between commission of offences against ss.129, 129AA or 192AAA and aiding and abetting the commission of such offences would frustrate the implementation of this purpose.

Reference should be made to counsel's arguments as to the significance of including in the definition of "relevant offence" an offence against ss. 6, 7 or 7A of the Crimes Act. These sections, like s.5, are concerned with "law(s) of the Commonwealth", including the Crimes Act itself, providing for offences. Section 6 fixes a penalty which may, depending on the law of the Commonwealth against which the principal offence is committed, be much less severe than that for an offence committed by operation of s.5 against the same law of the Commonwealth - e.g. an offence against s.83A of the Health Insurance Act achieved by aiding and abetting could be punished by imprisonment up to seven years; whereas being an accessory after the fact in respect of the same offence would attract a penalty of only up to two years' imprisonment; yet s.6 is mentioned in s.19B and s.5 is not mentioned. Accepting that the Legislature regards a practitioner who is an accessory after the fact in relation to a s.129 offence as less culpable than one who commits the same offence by the process of aiding and abetting, it would be anomalous if the former attracted the consequences of e.g. ss.19B and 19D while the latter escaped particularly if one has regard to the reprehensible conduct that the Health Insurance Act seeks to deter. The anomaly is found not to be present when one remembers that by the operation of s.5 alone there is not any offence, i.e. without recourse to other "law(s) of the Commonwealth". Therefore it would be quite inappropriate, even meaningless, to add, after the words "an offence against", "s.5" in the definition of "relevant offence" in s.19B. I do not accept counsel's argument as to the absence of reference to s.5 and the inclusion of ss.6, 7 and 7A in the definition of "relevant offence".

The word "commit", or its derivatives, perhaps is not entitled to the unequivocal meaning for which applicant's counsel, by implication, contended. In Cliff v. Schwabe 17 L.J.C. P.2 at p.14 Pollock C.B. said, "The meaning of 'commit' in Johnson. . . . is 'to perpetrate - to do a fault - to be guilty of a crime'; and 'perpetrate' is to commit, to act - always in an ill sense." The question there was as to the meaning of that word in the phrase, "commit suicide", used in an insurance policy. Did it mean a criminal suicide, a self killing by a "responsible moral agent"? Although he differed from the majority of the court on the result, the latter, in their separate reasons, do not say anything inconsistent with the Chief Baron's analysis of "commit". "Perpetrate" is one of the meanings attributed to "commit" in Ballentine's Law Dictionary, 3rd ed. (1969), p.225.

The insertion of s.19B in the Health Insurance Act by an amending act (No. 49 of 1982), the subordinate position of the word "committed" and the words following it, "after the commencement of this section", in the definition of "relevant offence", suggest that this word is present in the definition because the Legislature wanted to exclude practitioners whose impermissible conduct occurred before the introduction of s.19B. Otherwise this section and s.19D might have been thought to have operated unfairly.

An effect of s.5 of the Crimes Act is to render unnecessary the inclusion in a summons under s.129 of the Health Insurance Act the words, "aiding, abetting. . . the commission of an offence". It would have been sufficient to charge the applicant as a principal - cf. Henty v. Bainbridge-Hawker (1962) 36 A.L.J.R. 354 at p.356 where Owen J. said -

"If an offence by one or other of the two companies is proved and it is proved also that the defendant aided, abetted, counselled or procured or by act or omission was in any way directly or indirectly concerned in the commission of that offence, I am of opinion that he was rightly charged as a principal and may be convicted and punished as such."

Although the word "knowingly" did not precede "concerned" in the deeming provision (s.236 of the Customs Act 1901-1950) under consideration in the above case this does not render inapplicable Owen J.'s statement to the present case, quite the contrary. However, the presence of ". . . . indirectly knowingly concerned in the commission. . . ." in the summons itself served to apprise the applicant of the "legal nature of the offence with which he was charged": Johnson v. Miller (1937) 59 C.L.R. 467 per Dixon J. (as he then was) at p.489. See also Lee v. Mallan (supra) per Ligertwood J. at p.35 -

". . . The true description of the proceedings is that under or by virtue of s.5 of the Crimes Act, Mallan is being prosecuted for an offence against s.260."

See Mallan v. Lee (supra) per Dixon J. at pp.213 and 216. The charges laid here would have been appropriately worded of they had stated only the essential elements of s.129. See also Archbold, Pleading, Evidence & Practice in Criminal Cases, 40th ed. (1979), par.4135.

In the Summons reproduced above relating to one of the offences to which, as the evidence showed, the applicant pleaded guilty, the heading was -

"Health Insurance 1973 Section 129(1) Commonwealth Crimes 1914 5"

Thus the Summons expresses the offence as against s.129 but with recognition of the part played by s.5. The statement of the offence contained what might be regarded as surplusage, i.e. -

". . . . You. . . . was. . . . by an act indirectly knowingly concerned in the commission of an offence against a law of the Commonwealth"

There followed a statement of the offence by Joyce Edith Marcia Lewis including that she did "issue. . . a document. . . that was false in a material particular" and capable of being used in connection with an application for payment under the Health Insurance Act. It is to the offence as stated in the Summons that the plea of guilty must be regarded as addressed. It would, as I have said, have been sufficient to state the charge in terms that the applicant did, between the dates specified, issue the document mentioned. Assuming a plea of not guilty the prosecution could then have offered evidence that Joyce Edith Marcia Lewis did issue the document, and further, evidence that the applicant (aided and abetted) was knowingly concerned in her action. However, the substantive charge is as to the issue of the false document.

The effect of a plea of guilty is as stated in Chitty's Criminal Law, 2nd ed. (1826) vol. 1, p.428 (though there to an indictment) -

"An express confession of the indictment is, where the party pleads guilty, and thus directly, in the face of the court, confesses the accusation."

referred to in R. v. Tonks (1963) V.R. 121 at p.124. In that case, at pp.127-8, a plea of guilty was in the opinion of the Court "a solemn confession of the ingredients of the crime". See also Slater v. Marshall (1965) W.A.R. 222 where Nevile J. at p.230, quoting Hale J. in Di Camillo v. Wilcox (1964) W.A.R. 44 at p.46, referred to such a plea as ". . . . an admission of all the facts essential to the offence. . .". In this case, facts essential would include the ingredients of s.129; and, I suggest, the plea is a confession of guilt such as also acknowledges the lack of a s.129(3) defence. In Griffiths v. The Queen (1970) 137 C.L.R. 293, the words of Barwick C.J. at p.304 indicate that the plea of guilty "established guilt". The offer of a plea to this Summons is thus a "solemn confession" of the ingredients there set out including the actions described of Joyce Edith Marcia Lewis constituting the essential components of a s.129 offence. The plea "established guilt" in the applicant of a s.129 offence.

Thus I suggest the contentions on behalf of the applicant may also be answered by his plea of guilty which was to a charge laid under s.129. I do not agree that his plea may be interpreted, as it were, selectively as one to aiding and abetting but not as pleading guilty to or accepting the truth of the s.129 allegations. In fact, in my opinion, it is an admission of all that is set out in the Summons, which include the essential elements of s.129.

The applicant in being convicted of offences against s.129 must be held or "adjudged" to have committed such offences.

I refuse the declarations sought. I dismiss the application.

The applicant is to pay the costs of the respondent Minister.