Medical Board of Australia v Sami

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 01921

MEDICAL BOARD OF AUSTRALIA	Appellant
v
RIZWAN SAMI	Respondent

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2021
DATE OF JUDGMENT:	25 February 2022
CASE MAY BE CITED AS:	Medical Board of Australia v Sami
MEDIUM NEUTRAL CITATION:	[2022] VSC 90

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STATUTORY INTERPRETATION – National legislative scheme for registration and regulation of health practitioners – Provision for ‘immediate action’ by way of suspension of registration and other measures where the decision-maker reasonably believes that, because of the conduct of a registered practitioner, the practitioner poses a serious risk to persons and that it is necessary to take such a measure to protect public health and safety – Whether the provision impliedly requires that, generally, the decision-maker must form and express a reasonable belief about whether disputed past events occurred before considering the questions of serious risk and public health and safety – VCAT determining, in effect, that there is no such implied requirement – Appealed by Medical Board of Australia – VCAT correct as to effect of statutory provision – Appeal dismissed – Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 156 – Health Practitioner Regulation National Law Act 2009 (Qld).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	J Pizer QC with G Ayres	Minter Ellison
For the Respondent	J Ruskin QC with B House	Perry Maddocks Trollope

HIS HONOUR:

Introduction and overview: a single question of law

The Medical Board of Australia (‘the Board’), which regulates the Australian medical profession, seeks leave under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) to appeal from a decision of the Tribunal (‘VCAT’) given on 6 May 2021.[1] The proposed appeal has been heard together with the application for leave. Appeals under s 148 of the VCAT Act may only be brought on a question or questions of law.
[1]See Sami v Medical Board of Australia (Review and Regulation) [2021] VCAT 447.

The decision of VCAT under challenge was, in effect, a decision to set aside a decision of the Board to suspend the registration of the respondent, Dr Rizwan Sami, as a medical practitioner.

Essentially, the Board raises a single point as a question of law and as its proposed ground of appeal, although the point was expressed in several ways in the Board’s notice of appeal and was then significantly modified in various respects in oral argument. It was and remains a point of statutory construction only. Accordingly, subject to any relevant considerations of precedent, it falls to be decided by this Court by reference to the text, context and purpose of the relevant legislation.[2]
[2]SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [14] citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69]–[71]; Alcan Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

In Australia, 16 health professions, including the medical profession, are regulated by a scheme of uniform, or nearly uniform, legislation. The centrepiece is the Health Practitioner Regulation National Law (‘the National Law’), which is a schedule to an Act of the Queensland Parliament[3] and which, as in force from time to time, is picked up in Victoria by s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic). The present case turns on the proper interpretation of s 156(1)(a) of the National Law. Under s 156(1)(a), if the ‘National Board’ for a profession ‘reasonably believes’ that, because of the conduct, performance or health of a registered health practitioner, the practitioner poses a ‘serious risk’ to persons and that it is necessary to take ‘immediate action’ (as defined) to protect public health and safety, the Board may take such action. The kinds of ‘immediate action’ that may be taken are exhaustively specified in s 155. They include the suspension of a health practitioner’s registration. Generally speaking, at least, immediate action under s 156(1)(a) (or under other provisions of s 156(1)) is ‘designed to operate for an interim period, until an investigation or disciplinary proceeding with respect to the [health] practitioner is able to be concluded’.[4]
[3]Health Practitioner Regulation National Law Act 2009 (Qld).
[4]Medical Board of Australia v Liang Joo Leow [2019] VSC 532 (‘Leow’), [78] (Niall JA), as cited by VCAT below, quoting in turn from the Board’s written submissions to VCAT: [2021] VCAT 447, [23]. See [54] below. See also Kozanoglu v Pharmacy Board of Australia (2012) 36 VR 656, 661 [28], 674 [107], 677–8 [126]–[127] (‘Kozanoglu’); Nitschke v Medical Board of Australia (No 1) (2015) NTLR 55, 68 [24]; cf Bernadt v Medical Board of Australia [2013] WASCA 259, [62] (McLure P), [151]–[154] (Newnes JA), [298] (Murphy JA) (‘Bernadt’).

Most decisions of a National Board to take immediate action under s 156(1)(a) are appellable, by the registered health practitioner or student concerned, to ‘the appropriate responsible tribunal’, pursuant to ss 199–202 of the National Law. In Victoria, the appropriate responsible tribunal for appeals is VCAT.[5]
[5]Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 6.

Not uncommonly, a National Board or an appellate tribunal contemplating whether to take ‘immediate action’ in relation to a registered health practitioner under s 156(1)(a) of the National Law will be faced with conflicting information or disputed claims about past events, present circumstances or likely future events. This case relates to the implications of such a conflict or dispute for decision-making under s 156(1)(a).

When this matter was before VCAT, on appeal by Dr Sami from the Board, VCAT was confronted with information that was conflicting, in several respects, about what had happened on a particular occasion, some two years earlier, as between Dr Sami and another person. VCAT did not accept that it needed to resolve those conflicts before determining whether or not to uphold the Board’s contention that Dr Sami’s registration should remain suspended under s 156(1)(a).[6] VCAT was satisfied that, on all of the material before it, it could, in this case, make the assessments that VCAT considered to be required by s 156(1)(a)—being assessments that VCAT considered to be concerned, at least principally, with present and future risk—without resolving the conflicts as to the past events.
[6]See Sami v Medical Board of Australia [2021] VCAT 447, especially at [62]–[63]. The Board, in its own original decision making in relation to Dr Sami and in its submissions to VCAT, relied not only on s 156(1)(a) but also on a related provision, s 156(1)(e). The latter authorises immediate action where ‘the National Board reasonably believes the action is otherwise in the public interest’. However, VCAT determined that it was not appropriate to maintain Dr Sami’s suspension under either s 156(1)(a) or s 156(1)(e). Before this Court, the Board does not allege that VCAT made any error of law insofar as VCAT declined to uphold the Board’s case under s 156(1)(e).

The legal issue before this Court is whether, or to what extent or in what circumstances (if any), in matters that involve conflicting information or disputed claims about past events, the relevant National Board or the appellate tribunal, as the case may be, is obliged, by the express or implied terms of s 156(1)(a), to form a reasonable belief that particular past events either did occur or did not occur. In other words, the legal issue is whether, or to what extent or in what circumstances (if any), the National Board or the appropriate responsible tribunal must, by virtue of s 156(1)(a), choose between competing versions of disputed past events (or at least adopt its own version of those events)—by way of forming a reasonable belief in that regard—before deciding whether to take ‘immediate action’ under s 156(1)(a).

As will be seen, s 156(1)(a) itself certainly does not impose any such obligation in express terms. And, as already mentioned, the powers conferred by s 156(1)(a) generally fall to be exercised, if at all, only on an interim basis and often in circumstances thought to be urgent. Nevertheless, strange as it may seem, the Board originally contended in this case that s 156(1)(a) (itself) does indeed impose on National Boards and on appellate tribunals—as a precondition to making a decision either way—an absolute obligation of the kind just mentioned. In all of the written material filed on behalf of the Board in this Court, it was contended, in effect, that the obligation was applicable in every case involving disputed past facts, without exception. However, during oral argument, after some testing of the Board’s case, counsel for the Board came to submit, in effect, that there were three situations in which the putative statutory obligation would not apply. The first suggested situation is where the dispute does not extend to facts of a certain class, variously described as facts that are ‘centrally important’[7] or ‘core’[8] or ‘essential’[9]. It seems that, where the disputed facts are not of that class, it would, according to what the Board now says, be open to make a decision to take, or to not take, immediate action under s 156(1)(a), as the National Board or the tribunal sees fit, without resolving the differences. The second suggested situation is where the Board or tribunal validly finds that, even if everything ‘centrally important’ or ‘core’ or essential’ which has been alleged or raised against the practitioner as to past events were true, there would be no ‘serious risk’. In this (second) situation, according to what the Board now says, there would be no need to resolve the differences because a decision not to take immediate action would necessarily follow in any event.[10] The third suggested situation is where the Board or tribunal validly finds that it cannot, on the material before it, form a reasonable belief one way or the other. In this (third) situation, according to what the Board now says, there would be no obligation to ‘do the impossible’. As a result, once again, the decision would have to be, the Board says, a decision not to take immediate action under s 156(1)(a).[11]
[7]Transcript of proceedings in this Court (‘T’), 18.
[8]T 23.
[9]T 92.
[10]T 50.
[11]T 39–40. On the other hand, the Board submits (T 19–20, 99) that, in this (third) situation, it would be open to consider taking immediate action under s 156(1)(e), a provision referred to in n 6 above. And see further below.

Until almost the last moment of the hearing, the Board in its submissions made no distinction between the position of a National Board and the position of an appellate tribunal in relation to a matter arising under s 156(1)(a). However, towards the very end of his oral submissions in reply, junior counsel for the Board appeared to submit that there is, or that there may be, a relevant difference in this regard.[12] I will deal with that matter in due course.
[12]T 100.

In relation to Dr Sami’s matter in VCAT in particular, the Board submits, first, that the dispute did extend to allegations of fact that were ‘centrally important’ or ‘core’ or ‘essential’, but that those allegations were left undetermined by VCAT;[13] second, that VCAT did not find that there would have been no serious risk to persons even if all of the ‘centrally important’, ‘core’ or ‘essential’ allegations were true;[14] and, third, that VCAT did not find that it was impossible to form a reasonable belief as to the events in question.[15] Hence, according to the Board, VCAT’s decision was necessarily affected by an error of law constituted by a misinterpretation or misapplication of s 156(1)(a). And, according to the Board, the alleged error was a vitiating one because the outcome might otherwise have been different.
[13]T 38.
[14]T 35–36.
[15]T 39–41.

Dr Sami submits that s 156(1)(a) does not have the effect that the National Board or the appellate tribunal must always, or generally, accept or adopt a particular version of disputed past events (to the extent of forming a reasonable belief in that regard) as a precondition for taking or not taking immediate action under that provision.[16] According to Dr Sami, s 156(1)(a) does not confine to the three situations now suggested by the Board the decision-maker’s freedom to leave disputed questions of past fact undetermined. Alternatively, Dr Sami submits, in effect, that the interpretation suggested by the Board could only be applicable in relation to the taking of immediate action, not in relation to declining or omitting to take immediate action. Finally, in the further alternative, Dr Sami submits that any error of law made by VCAT was immaterial and therefore non-vitiating.[17]
[16]Dr Sami’s written outline of submissions in this Court dated 25 November 2021 (‘Dr Sami’s outline’) [43]–[49].
[17]Ibid [60]–[63].

In my view, it is quite clear that the Board’s construction of s 156(1)(a), in all of its variations, is out of harmony with the text, context and purpose of that provision. Hence, apart from any considerations of precedent, it would be quite clear that the Board’s construction is wrong. On the other hand, many prior cases relating to s 156(1)(a) of the National Law have been decided by courts and tribunals, and some of those cases will need to be considered in due course. The Board relies principally on the unreported decision of the Court of Appeal of Western Australia in Bernadt v Medical Board of Australia (‘Bernadt’),[18] delivered in 2013. However, in my view, as will be explained, Bernadt does not require that s 156(1)(a) be interpreted and applied by this Court in the manner (or in any of the manners) advanced by the Board in the present case. Nor does any other relevant authority so require. None of the constructions of s 156(1)(a) advanced by the Board should be accepted.
[18][2013] WASCA 259.

Leave to appeal will be granted[19] but, for the reasons summarised above and elaborated below, the appeal will be dismissed.
[19]See VCAT Act s 148(2A).

The statutory scheme generally

As mentioned above, the regulation of medical and other health practitioners in Australia is governed by legislation that is uniform, or nearly uniform, across all jurisdictions.[20] The various State and Territory application Acts implement, and sometimes modify, the provisions of the National Law for each jurisdiction. In Victoria, the application Act makes no modifications to the National Law.
[20]Health Practitioner Regulation National Law Act 2009 (Cth); Health Practitioner Regulation National Law Act 2009 (Qld); Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW); Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic); Health Practitioner Regulation National Law (ACT) Act 2010 (ACT); Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT); Health Practitioner Regulation National Law (Tasmania) Act 2010 (Tas); Health Practitioner Regulation National Law (South Australia) Act 2010 (SA); Health Practitioner Regulation National Law (WA) Act 2010 (WA).

The Australian Health Practitioner Regulation Agency (‘AHPRA’) is established by the legislation as the national authority to co-ordinate the administration and implementation of the scheme.[21] As indicated above, the National Law also provides for the establishment of a separate ‘National Board’ for each health profession.[22] AHPRA carries out statutory assessments and investigations of various kinds on behalf of the National Boards and at their direction.
[21]Health Practitioner Regulation National Law Act 2009 (Qld) sch 1 (‘National Law’) s 23.
[22]National Law s 31.

Part 8 of the National Law deals principally with the health, performance and conduct of registered health practitioners and registered students. In the 14 Divisions of Part 8, provision is made for numerous different processes and procedures in that regard. The Part provides for mandatory and voluntary notifications to AHPRA of ‘notifiable conduct’, as defined;[23] for the preliminary assessment by National Boards of notifications;[24] for the taking, as already mentioned, of certain kinds of action, defined collectively as ‘immediate action’, by National Boards in relation to registered health practitioners and students in certain circumstances;[25] for the conduct of investigations by National Boards into the health, performance or conduct of registered health practitioners and students;[26] for the carrying out of health and performance assessments by assessors, and the reporting of the assessments to the relevant National Boards, with a view to the making by the Boards of certain kinds of decisions;[27] for the taking of ‘relevant action’, as defined, by National Boards against registered health practitioners or students in certain circumstances;[28] for the establishment of health panels to consider the health of practitioners and students and for the establishment of performance and professional standards panels to consider the performance and conduct of practitioners and students;[29] for the referring of matters of a more serious kind to ‘responsible tribunals’;[30] for ‘appeals’ against certain specified decisions;[31] and for miscellaneous other matters, including the giving of relevant notices in respect of decisions made.[32] Under the Victorian legislation which adopts and applies the National Law, VCAT is nominated not only as the body to hear appeals but also as the ‘responsible tribunal’ to deal with referrals.[33]
[23]National Law pt 8 div 2, 3 and 4.
[24]National Law pt 8 div 5.
[25]National Law pt 8 div 7.
[26]National Law pt 8 div 8.
[27]National Law pt 8 div 9.
[28]National Law pt 8 div 10.
[29]National Law pt 8 div 11.
[30]National Law pt 8 div 12.
[31]National Law pt 8 div 13. As to the nature of the ‘appeals’ provided for under the statutory scheme, see further below.
[32]National Law pt 8 div 14.
[33]Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) ss 6, 6A(1).

Descriptions of the national legislative scheme may also be found in the several judgments of the members of the Western Australian Court of Appeal in Bernadt.[34] That case was decided in 2013. Subsequently, in 2017, the centrally relevant provision for present purposes, s 156, was amended by the insertion of s 156(1)(e), which provides for the taking of ‘immediate action’ where it is reasonably believed that such action ‘is otherwise in the public interest’.[35] The Board now says that s 156(1)(e) has significance for the proper construction of s 156(1)(a).[36] In its initial dealings with Dr Sami and in its submissions to VCAT, the Board had relied on s 156(1)(e) directly, as a source of power to take immediate action in relation to Dr Sami. However, the Board does not submit in this Court that VCAT erred insofar as VCAT concluded that immediate action should not be taken in relation to Dr Sami under s 156(1)(e). Apart from the insertion of s 156(1)(e), the relevant provisions of the National Law (itself) remain much the same as they were in 2013, and as they were described in Bernadt. However, when Bernadt was decided in 2013, there were some particular provisions of the Western Australian application legislation and of other relevant Western Australian legislation (particularly in relation to appeals) that were, at least in form, a little different from the current corresponding provisions of the corresponding Victorian legislation. However, those differences are of little or no moment for the purposes of the present case.
[34][2013] WASCA 259. Bernadt is the abovementioned case on which the Board places great reliance.
[35]Health Practitioner Regulation National Law and Other Legislation Amendment Act 2017 (Qld) s 24.
[36]This contention was raised for the first time in the Board’s oral submissions at the final hearing. See further below.

The particular provisions of the National Law of most relevance

The present case relates mainly to only one of the 14 Divisions of Part 8 of the National Law, namely Division 7 (‘Immediate action’) of Part 8. It is important to note that Division 7 does not provide for the bringing of disciplinary proceedings against practitioners or students. Rather, it provides for the taking of certain specified kinds of action—principally, at least, action of an interim nature[37]—in relation to registered health practitioners or students, to protect other persons, to protect public health or safety, to protect the integrity of the registration system, or otherwise in the public interest. Investigatory, disciplinary and other regulatory proceedings are provided for in other Divisions of Part 8 of the National Law.
[37]See n 4 above.

At all times directly relevant to this case, Division 7 of Part 8 has provided as follows:

Division 7—Immediate action
155 Definition
In this Division—
immediate action, in relation to a registered health practitioner or student, means—
(a) the suspension, or imposition of a condition on, the health practitioner’s or student’s registration; or
(b) accepting an undertaking from the health practitioner or student; or
(c) accepting the surrender of the health practitioner’s or student’s registration.
(d) if immediate action has previously been taken suspending a health practitioner’s or student’s registration—the revocation of the suspension and the imposition of a condition on the registration; or
(e) if immediate action has previously been taken imposing a condition on a health practitioner’s or student’s registration—the suspension of the registration instead of the condition.

156 Power to take immediate action
(1) A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if—
(a) the National Board reasonably believes that—
(i) because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety; or

(b) the National Board reasonably believes that—
(i) the student poses a serious risk to persons because the student—
(A) has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or
(B) has, or may have, an impairment; or
(C) has, or may have, contravened a condition of the student’s registration or an undertaking given by the student to a National Board; and

(ii) it is necessary to take immediate action to protect public health or safety; or

(c) the registered health practitioner’s registration was improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular; or
(d) the registered health practitioner’s or student’s registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction.
(e) the National Board reasonably believes the action is otherwise in the public interest.
Example of when action may be taken in the public interest—
A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner’s practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.

(2) However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner’s or student’s registration only if the Board has complied with section 157.
157 Show cause process
(1) If a National Board is proposing to take immediate action that consists of suspending, or imposing a condition on, a registered health practitioner’s or student’s registration under section 156 , the Board must—
(a) give the practitioner or student notice of the proposed immediate action; and
(b) invite the practitioner or student to make a submission to the Board, within the time stated in the notice about the proposed immediate action.

(2) A notice given to a registered health practitioner or student under subsection (1) , and any submissions made by the practitioner or student in accordance with the notice, may be written or verbal.
(3) The National Board must have regard to any submissions made by the registered health practitioner or student in accordance with this section in deciding whether to take immediate action in relation to the practitioner or student.
158 Notice to be given to registered health practitioner or student about immediate action
(1) Immediately after deciding to take immediate action in relation to a registered health practitioner or student, the National Board must—
(a) give written notice of the Board’s decision to the health practitioner or student; and
(b) take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner or student or requiring the practitioner or student to undergo a health or performance assessment.

(2) The notice must state—
(a) the immediate action the National Board has decided to take; and
(b) the reasons for the decision to take the immediate action; and
(c) the further action the National Board proposes to take under this Part in relation to the health practitioner or student; and
(d) that the registered health practitioner or student may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner’s or student’s registration; and
(e) how an application for appeal may be made and the period within which the application must be made.

159 Period of immediate action
(1) The decision by the National Board to take immediate action in relation to the registered health practitioner or student takes effect on—
(a) the day the notice is given to the practitioner or student; or
(b) the later day stated in the notice.

(2) The decision continues to have effect until the earlier of the following occurs—
(a) the decision is set aside on appeal;
(b) for the suspension of, or imposition of conditions on, the registered health practitioner’s or student’s registration, the suspension is revoked, or the conditions are removed, by the National Board; or
(c) for an undertaking, the National Board and the registered health practitioner or student agree to end the undertaking.

159A Board may give information to notifier about immediate action
(1) This section applies if a notification about a registered health practitioner or student results in immediate action by a National Board under this division in relation to the practitioner or student.
(2) After deciding to take the immediate action, the National Board may inform the notifier who made the notification of the decision and the reasons for the decision.

Division 13 of Part 8 of the National Law relates to appeals. The principally relevant provisions of Division 13 are as follows:

199 Appellable decisions
(1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision—
…
(h) a decision by a National Board to suspend the person’s registration;
…

(2) For the purposes of subsection (1), the appropriate responsible tribunal for an appellable decision is—
(a) for a decision to take health, conduct or performance action in relation to a registered health practitioner or student—
(i) the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the decision occurred; or
(ii) if the behaviour the subject of the decision occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner’s principal place of practice is located; or
…

200 Parties to the proceedings
The parties to proceedings relating to an appellable decision being heard by a responsible tribunal are—
(a) the person who is the subject of the appellable decision; and
(b) the National Board that—
(i) made the appellable decision; or
(ii) established the panel that made the appellable decision.

201 Costs
The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
202 Decision
(1) After hearing the matter, the responsible tribunal may—
(a) confirm the appellable decision; or
(b) amend the appellable decision; or
(c) substitute another decision for the appellable decision.

(2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.
203 Relationship with Act establishing responsible tribunal
This Division applies despite any provision to the contrary of the Act that establishes the responsible tribunal but does not otherwise limit that Act.

The National Law also contains some provisions of general application that should be noted. Section 3 of the National Law sets out the statutory object, together with the objectives and guiding principles of the national registration and accreditation scheme. So far as relevant, the stated object of the National Law is to establish a national registration and accreditation scheme for ‘the regulation of health practitioners’ and ‘the registration of [certain] students’. The ‘objectives’ of the scheme include, relevantly, ‘to provide 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’. The ‘guiding principles’ of the scheme include, relevantly, that ‘the scheme is to operate in a transparent, accountable, efficient, effective and fair way’; and that ‘restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality’. Section 4 provides that an entity that has functions under the National Law is to exercise its functions having regard to those objectives and guiding principles. Section 5 contains definitions. The term ‘health, conduct or performance action’, which, as indicated above, appears in s 199(2)(a) of the National Law, is defined, so far as relevant, to mean action that ‘a National Board or an adjudication body may take in relation to a registered health practitioner or student at the end of a proceeding under Part 8’. It would seem that the taking by a National Board of immediate action under s 156(1)(a) would come within the notion of action that a National Board may take ‘at the end of a proceeding under Part 8’.[38] Therefore, it would seem that the taking by a National Board of ‘immediate action’ under s 156(1)(a) would be within the concept of ‘a decision to take health, conduct or performance action’ referred to in s 199(2)(a). Section 6 of the National Law (‘Interpretation generally’) picks up and applies Schedule 7 of the National Law. Schedule 7, in turn, includes a s 7, which provides:
[38]‘Proceeding’ means ‘a legal or other action or proceeding’: see the definition of ‘proceeding’ in s 12 of schedule 7 of the National Law, which in turn is picked up by s 6 of the National Law.

7 Interpretation best achieving Law’s purpose
(1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation.
(2) Subclause (1) applies whether or not the purpose is expressly stated in this Law.

In addition, s 22(1) of Schedule 7 of the National Law provides:

22 Performance of statutory functions
(1) If this Law confers a function or power on a person or body, the function may be performed, or the power may be exercised, from time to time as occasion requires.

Further, s 23 of Schedule 7 provides:

23 Power to make instrument or decision includes power to amend or repeal
If this Law authorises or requires the making of an instrument or decision—
(a) the power includes power to amend or repeal the instrument or decision; and
(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.

The proper construction of s 156(1)(a): short answer

In my view, as mentioned above, the Board’s various constructions of s 156(1)(a) are all incorrect. Section 156(1)(a) of the National Law does not, either in its own terms or as indicated by matters of context or purpose, require the relevant National Board or the appropriate responsible tribunal to choose between differing versions of past events (by way of forming a ‘reasonable belief’ in that regard)—either always or always except in one or other of the three situations now suggested by the Board—for the purpose of deciding whether or not to take ‘immediate action’ in relation to a registered health practitioner. The decision-maker’s power under s 156(1)(a) is not so confined, albeit that, like all statutory powers, its exercise is subject to judicial review on the ground of legal unreasonableness and on other administrative law grounds.[39] Decided cases do not require this Court to adopt any of the Board’s constructions of s 156(1)(a). VCAT did not err in law in this case in the manner alleged by the Board. My reasons for these conclusions will be further developed below. In the meantime, it is desirable to describe the history and circumstances of the present case in order to give a factual context to the question of statutory construction and in order that every aspect of the Board’s case, as ultimately put, may be appropriately dealt with.
[39]See, eg, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [26] (French CJ), [63]–[66] (Hayne, Kiefel and Bell JJ), [88]–[92] (Gageler J).

The history and circumstances of the present case

The following chronology is uncontroversial. It is based on documents contained in the Court Book, being mainly documents that were before VCAT, VCAT’s reasons for decision and the affidavit of Louisa Ashton, solicitor, affirmed on 10 June 2021 and filed in this Court on behalf of the Board, and the exhibits to that affidavit.

In 2006, Dr Sami commenced practice as a qualified medical practitioner in the United Kingdom. In 2013, he migrated to Australia. In 2014, he was married. There is one child of the marriage, a boy.[40] In 2016, Dr Sami commenced working part-time as a registered general practitioner in suburban Melbourne; and part-time as a senior professional medical officer at AHPRA, assessing general practitioners. From time to time he also performed duties at AHPRA as an investigator.[41]
[40]Dr Sami’s statement dated 11 December 2020, Court Book (‘CB’) 190.
[41]Dr Sami’s submissions to the Board dated 26 July 2019, CB 31–32.

In March 2017, Dr Sami first saw as a patient a woman in her early twenties (“XYZ”) who later made a complaint against him. Dr Sami saw XYZ as a patient on a total of seven occasions over a period of about two years, the last in early March 2019. On Saturday evening 30 March 2019, about 25 days after XYZ’s last attendance as a patient, Dr Sami and XYZ independently attended a nightclub in Melbourne, arriving at different times.[42] At one stage, they spoke to each other briefly at a bar within the nightclub. Later in the night they met again; and they danced together, embracing and kissing on the dance floor. Each had become very inebriated. At about 1.00am on Sunday morning 31 March 2019 they had a sexual encounter in a disabled toilet at the nightclub.[43] In a written police statement which she made about one month later (on 1 May 2019), XYZ maintained that Dr Sami had recognised her as a patient from the beginning.[44] However, in a written statement that Dr Sami made at a later time again (on 11 December 2020), Dr Sami denied this. He said that he only recognised XYZ as a patient when he was having sexual intercourse with her at the end of the evening and that he then immediately stopped.[45] In her police statement XYZ did not deny that she had been willing to engage in sexual intercourse initially, but claimed that the actual intercourse was violent and non-consensual.[46] In his written statement of 11 December 2020, Dr Sami denied this. He said that the intercourse was consensual at all times and that there was no violence.[47]
[42]Sami v Medical Board of Australia [2021] VCAT 447, [20].
[43]Ibid [25]–[33].
[44]Police statement of XYZ dated 1 May 2019, CB 23.
[45]Dr Sami’s statement dated 11 December 2020, CB 193.
[46]Police statement of XYZ dated 1 May 2019, CB 25–27.
[47]Dr Sami’s statement dated 11 December 2020, CB 193.

On 11 April 2019, XYZ reported the matter to Victoria Police.[48] On 1 May 2019, she made her abovementioned written police statement. On the same day, she made a complaint to AHPRA, which treated her complaint as a ‘voluntary notification’ under Divisions 3 and 4 (ss 143–147) of the National Law. AHPRA referred the notification to the Board and, on 6 May 2019, the Board, through AHPRA, commenced an investigation under s 160 of the National Law into the conduct of Dr Sami.[49]
[48]Undated statement of material facts prepared by Victoria Police, CB 60.
[49]Affidavit of Louisa Clare Ashton dated 10 June 2021 (‘Ashton Affidavit’), CB 7.

On 9 July 2019, Dr Sami was arrested by police and gave a ‘no comment’ interview.[50] On 10 July 2019, Victoria Police provided XYZ’s statement of 1 May 2019 to AHPRA.[51]
[50]Transcript of record of interview between police officer and Dr Sami dated 9 July 2019, CB 158–176.
[51]Letter from AHPRA to Dr Sami’s solicitors dated 30 July 2019, CB 40–52, 44.

On 16 July 2019, AHPRA, on behalf of the Board, gave Dr Sami a written ‘show cause’ notice under s 157 of the National Law, stating that the Board was proposing to take immediate action in relation to Dr Sami and inviting him to make a submission about that proposal. On 26 July 2019, Dr Sami lodged a written submission with the Board. On 29 July 2019, the Board heard verbal submissions from counsel for Dr Sami. On that same day, the Board decided to suspend Dr Sami’s registration as from the following day, 30 July 2019. In a letter from AHRPA to Dr Sami’s legal practitioners dated 30 July 2019, it was explained that the Board considered it appropriate to take immediate action in relation to Dr Sami under both s 156(1)(a) (risk to persons) and s 156(1)(e) (public interest) of the National Law. Detailed reasons were given.[52]
[52]Ibid, see especially CB 43–52.

On 19 May 2020, Victoria Police charged Dr Sami with two counts of rape and three counts of sexual assault.[53]
[53]Sami v Medical Board of Australia [2021] VCAT 447, [5].

On 7 August 2020, the criminal matter was the subject of a committal mention hearing in the Magistrates’ Court.[54] The police brief of evidence included XYZ’s statement of 1 May 2019, together with the statements of certain third parties tending to corroborate parts of the complainant’s statement. Dr Sami’s medical records relating to XYZ were also included.[55] In addition, the police brief contained some CCTV footage from the nightclub, including footage that showed XYZ and Dr Sami while they were dancing, and at other times both before and after their encounter in the disabled toilet.[56] It appears that XYZ may not have seen the CCTV footage prior to making her statement of 1 May 2019.
[54]Form 29 Notice of Committal Mention Date and Hand-up Brief, CB 56.
[55]CB 54–176.
[56]Ashton Affidavit, Exhibit LCA-2.

On 26 August 2020, Victoria Police withdrew all charges against Dr Sami. The Magistrates’ Court awarded Dr Sami his costs of the proceeding.[57]
[57]Sami v Medical Board of Australia [2021] VCAT 447, [6].

On 4 September 2020, Dr Sami wrote to the Board inquiring about having the suspension lifted. There was apparently no response to this request.[58]
[58]Ibid, [20].

On 11 December 2020, via solicitors, Dr Sami requested the Board to reconsider its decision of 30 July 2019 to suspend his registration.[59] The request included the abovementioned written statement of 11 December 2020 made by Dr Sami. The statement dealt first with matters of background, particularly relating to Dr Sami’s career. It also mentioned that he was at that time separated from his wife and seeking a divorce and that he was living in the family home with his 5 year old son. The statement then set out several ‘issues’ said to have impacted upon Dr Sami’s psychological state prior to and as at 30–31 March 2019. These included claimed concerns about the medical condition of his son; claims that Dr Sami had suffered significant neck pain from 2017; claims that Dr Sami had been experiencing marital discord from 2017; and claims that a few days before 30 March 2019 Dr Sami’s mother in London had suffered a worrying deterioration in her health. Next, the statement gave Dr Sami’s version of the events of 30 and 31 March 2019. It contained assertions that Dr Sami had consumed much more alcohol that evening than he was used to, with no food. It contained a denial of XYZ’s allegation that Dr Sami had said to her at the nightclub ‘you’re my patient’. On the other hand, it allowed for the possibility that XYZ may have said that she was a patient of his. It referred to the dancing. It stated that, throughout this period, Dr Sami did not appreciate that XYZ was his patient. It included an assertion that, towards the end of the evening, XYZ pulled Dr Sami by the arm, saying ‘come with me’; and that she led him to the disabled toilet. It noted that her leading him by his arm to the disabled toilet was shown clearly on the CCTV footage. It asserted that XYZ locked the door of the toilet. It asserted that there was then consensual intercourse for around two minutes. It further asserted that it only dawned on Dr Sami that XYZ was a patient at that stage, and that this caused him to cease intercourse. It contained assertions that XYZ was not upset, that everything was cordial, that XYZ got dressed and did her makeup and hair; and that they hugged before leaving the toilet, with XYZ leaving first. The statement asserted that the CCTV footage showed them leaving the toilet with no signs of distress on the part of XYZ; and that the CCTV footage indicated that they had been in the toilet for 12 minutes.[60]
[59]Ibid.
[60]Dr Sami’s statement dated 11 December 2020, CB 190–201.

The statement of Dr Sami contained an acknowledgement that having sex with a patient is certainly wrong; and it indicated that Dr Sami did not blame XYZ in any way for what had occurred.[61]
[61]Ibid, CB 193.

The statement then detailed steps that Dr Sami claimed to have taken since the incident, which he hoped would reassure the Board that he did not pose a risk to patients or the public. In particular, it was stated that Dr Sami had commenced seeing a psychiatrist in October 2020; that Dr Sami would have seen the psychiatrist sooner, but that the lawyers advising him during the period when he faced the prospect of criminal charges had advised him not to speak with anyone about the incident; that he had discussed with the psychiatrist stressors in his personal life and how to deal with them; and that these discussions included the events of 30–31 March 2019 themselves, together with the matters of doctor–patient boundaries and power imbalances. It was stated that Dr Sami was proposing to continue to see the psychiatrist.[62]
[62]Ibid, CB 194–196.

It was further said in the statement that, if Dr Sami was permitted to return to practice, he would engage a mentor/support person with whom he could liaise on a monthly basis or more frequently if required; that he had undertaken CPD courses covering relevant topics; that he had given up drinking alcohol as from July 2019; that he believed that he had been under considerable emotional pressure and had been depressed at the time of the incident; that, subsequently, his son’s medical prognosis had improved significantly; that Dr Sami was in the final stages of resolving Family Court issues with his former wife; that his neck pain issues had been resolved through lifestyle changes and other steps; and that his mother’s medical condition had stabilised. Further, according to the statement, Dr Sami had gone through the very considerable stress of being charged with rape and sexual assault, including shame and embarrassment as a result of mainstream media reports of the criminal charges. It was pointed out that he had already been suspended from practising medicine for 16 months and it was said that this had created very significant financial pressures. According to the statement he had lost his position at the suburban medical surgery and all of his other medical employment. Finally, the statement acknowledged the inherent power imbalance in the doctor–patient relationship and the obligation and fundamental importance of maintaining professional boundaries. There was an acknowledgement that pursuing sexual conduct with a patient could cause psychological and/or emotional harm to the patient and could compromise the medical care of the patient.[63]
[63]Ibid.

On 5 January 2021, the Board declined to exercise its power (a power conferred by and/or recognised in s 159(2)(b) of the National Law) to revoke the suspension. On the other hand, the Board advised that it was maintaining the suspension only on the basis of s 156(1)(a), and no longer on the basis of s 156(1)(e).[64]
[64]Letter from AHPRA to Dr Sami’s solicitors dated 5 January 2021, CB 202–205.

On 2 February 2021, Dr Sami applied to VCAT for review of the original suspension decision of 30 July 2019 and also for review of the Board’s refusal on 5 January 2021 to revoke the suspension.[65]
[65]Sami v Medical Board of Australia [2021] VCAT 447, [20].

Subsequently, the parties agreed that the decision of 5 January 2021 was not reviewable by VCAT under ss 199–203 of the National Law or at all. However, the Board consented to Dr Sami being granted an extension of time for review of the decision of 30 July 2019.[66]
[66]Ibid, [21].

At VCAT, the Board reversed its position in relation to s 156(1)(e) and sought to rely on that provision again.[67]
[67]Ibid, [20].

On 24 March 2021, a written outline of submissions prepared by senior counsel for the Board was filed at VCAT.[68] On 1 April 2021, a responsive outline of submissions prepared by senior and junior counsel for Dr Sami was filed at VCAT.[69]
[68]Board’s submissions to VCAT dated 24 March 2021, CB 232–250.
[69]Dr Sami’s submissions to VCAT dated 1 April 2021, CB 251–259.

VCAT (constituted by Senior Member Smithers and medical Members Mason and Molloy) heard the appeal on 7 April 2021. During the hearing VCAT made an order under the Open Courts Act 2013 (Vic) suppressing the disclosure of any information that might identify XYZ. That order remains in force. (Later, on 14 July 2021, after the commencement of the present proceeding in this Court, I made a similar order to cover this proceeding. That order also remains in force).

Importantly, apparently by agreement, no witnesses were called and there was no cross-examination at the VCAT hearing.[70] The only significant ‘evidentiary’ material before VCAT was the relevant part of the Board’s file, the police brief for the aborted criminal proceeding (which included the statement of XYZ of 1 May 2019 and the other police statements referred to above), Dr Sami’s written statement of 11 December 2020 and a report from Dr Sami’s psychiatrist dated 25 March 2021. VCAT was told that the Board’s own disciplinary investigation (that had commenced on 6 May 2019) would take another three months to complete; and that if (which was anticipated) the Board decided to commence a disciplinary proceeding against Dr Sami at VCAT, the best estimate was that that proceeding would be heard and determined in early 2022.[71]
[70]Senior counsel for the Board indicated in this Court that in the significant majority of immediate action cases before the VCAT, there is no cross-examination: T 16.
[71]Sami v Medical Board of Australia [2021] VCAT 447, [9]. On 7 December 2021, during the hearing in this Court, counsel for the Board indicated that a proceeding accusing Dr Sami of professional misconduct had (eventually) been commenced at VCAT and that it was scheduled for an ‘administrative mention’ in February 2022: T 72.

At the conclusion of the VCAT hearing, senior counsel for Dr Sami suggested that inquiries could be made with XYZ as to whether she had requested that the criminal charges be withdrawn. VCAT indicated that it would be assisted by receiving a response to that question.[72] Subsequently, on 9 April 2021, the solicitors for the Board contacted XYZ by telephone. The solicitors reported to the Tribunal, by a letter dated 14 April 2021, that XYZ had stated:

(a) that she did not ask for the criminal charges against Dr Sami to be withdrawn; and

(b) that, as far as she was aware, the criminal charges were not withdrawn in response to any view or preference that she expressed or held.[73]

[72]Transcript of proceedings before VCAT on 7 April 2021, CB 406.

[73]Sami v Medical Board of Australia [2021] VCAT 447, [42].

In the letter, the solicitors for the Board indicated that the Board maintained its submission, which had been advanced at the hearing, that the Tribunal did not (and could not) know why the charges had been withdrawn.[74]
[74]Letter from the Board’s solicitors to VCAT dated 14 April 2021, CB 262.
VCAT’s decision and reasons and the general scope and the boundaries of the Board’s attack

On 6 May 2021, the Tribunal made its order and gave its reasons for decision. The order reads as follows:

Under s 202(1)(c) of the Health Practitioner Regulation National Law, the decision of the respondent of 30 July 2019 to suspend the registration of the applicant by way of immediate action under s 156(1)(a) and (e), is substituted by a decision that no immediate action be taken under those provisions.

VCAT’s statement of reasons occupies 26 pages, with 142 paragraphs and 36 footnotes. The Board does not allege that VCAT’s statement of reasons is legally inadequate.[75]
[75]See Board’s written outline of submissions in this Court dated 4 October 2021 [2]–[3] (‘Board’s outline’); T 95. Compare Board’s outline [56]–[60]; VCAT Act s 117; Burgess v McGarvie [2013] VSCA 142, [61]–[65].

I will begin to recount and summarise VCAT’s reasons in a moment, but it is useful first to say a little more, in general terms, about what the Board does and does not submit about VCAT’s decision and reasons. Although the Board contends, as indicated above, that, by reason of s 156(1)(a), VCAT was required to form and express a belief or beliefs about disputed aspects of the events at the nightclub and that VCAT failed to do so, and although, as will be further mentioned in due course, the Board makes consequential criticisms of VCAT’s process of reasoning, the Board does not advance any ground of attack on VCAT’s decision that is independent of the Board’s argument as to the proper construction of s 156(1)(a).[76] And, as already mentioned, the Board does not submit that VCAT erred in law in its rejection of the Board’s case insofar as that case was based on s 156(1)(e). Further, there is no ground of legal unreasonableness or of failing to take into account mandatory relevant considerations. It is not submitted that VCAT’s decision was not reasonably open to it on the material before it. Quite the contrary. The Board acknowledges that VCAT’s decision was reasonably open to it on that material.[77]
[76]See the Board’s notice of appeal, CB 1–3, and note the oral submissions made by the Board’s senior counsel at the final hearing: T 4, 9, 54.
[77]See Board’s outline [63(c)], [63(d)]; and note the oral submissions of senior counsel for the Board at T 71 acknowledging, in effect, that the Board’s decision was reasonably open to it.

Towards the beginning of its reasons, VCAT notes that, while there was agreement on some matters, XYZ’s police statement of 1 May 2019 alleges that ‘key aspects’ of the encounter of 30-31 March 2019 were violent, and not consensual.[78] VCAT immediately acknowledges that if ‘that were alleged and proved in a disciplinary proceeding, such conduct would obviously raise very serious questions about Dr Sami’s dependability, ethics and suitability to practise.’[79] However, VCAT also notes[80] that Dr Sami’s version of events is quite different, as indicated above. VCAT perceives the issue before it to be whether, in the current circumstances, the risks to the public and to the public interest[81] are such that Dr Sami should not be allowed to practise as a GP during the period from the time of VCAT’s decision until the determination of the anticipated disciplinary proceeding.[82]
[78]Sami v Medical Board of Australia [2021] VCAT 447, [3].
[79]Ibid.
[80]Ibid [4]–[6].
[81]The reference to the public interest here is a reference to the above mentioned provisions of s 156(1)(e).
[82]Sami v Medical Board of Australia [2021] VCAT 447, [8]–[9].

VCAT emphasises a matter referred to above, namely that Dr Sami’s appeal against the ‘immediate action’ taken by the Board is not a disciplinary proceeding. The question is not, VCAT observes, whether Dr Sami has engaged in professional misconduct, nor whether he is a fit and proper person to practise.[83] Before this Court, the Board makes no criticism of these particular observations.
[83]Ibid [10].

VCAT continues:[84]
[84]Ibid [11]–[19].

11.Nor are we making definitive findings of fact as to what did or did not occur. On the other hand, it is necessary to give consideration to the doctor’s ‘conduct’, for the purposes of determining whether we have the requisite ‘reasonable belief’ under s 156(1)(a).
12.Specifically, our task under s 156(1)(a) is to consider whether we ‘reasonably believe’ that because of the doctor’s ‘conduct’, he poses a serious risk to persons and that it is necessary to take immediate action to protect public health or safety.
13.Under s 156(1)(e), our task is to consider whether we reasonably believe that action (such as suspending the doctor) is ‘otherwise in the public interest’. In particular, to protect the reputation of the profession and of the regulatory system.
14.Two related issues in particular arise for consideration here. First, what is the effect of the withdrawal of the criminal charges? Second, how should we characterise Dr Sami’s conduct for the purposes of this review?
15.For Dr Sami it was said that the withdrawal of the criminal charges makes the complainant’s version less credible. The Board, on the other hand, submitted that this is a neutral factor.
16Concerning the way in which Dr Sami’s ‘conduct’ should be characterised for the purposes of this hearing, the Board said we should apply the complainant’s version. For Dr Sami, it was said we should apply his version, because it is more credible.
17.For the reasons set out below we are satisfied that the withdrawal of the criminal charges is a relevant and significant factor operating in Dr Sami’s favour under s 156.
18.This is relevant to the way in which we approach the question of how Dr Sami’s ‘conduct’ should be characterised for the purposes of the s 156 analysis. The case law indicates that a complaint that is misconceived should clearly not be given weight. In our view, it cannot be said that the complaint here is misconceived. But the withdrawal of the charges is a real world consideration which we cannot ignore as part of considering whether taking immediate action under s 156 is the correct and preferable decision.
19.In weighing up the applicable criteria under s 156, we have ultimately not formed the requisite reasonable belief under either s 156(1)(a) or (e) that immediate action should be taken against Dr Sami.

Next, by way of general background, VCAT sets out a brief chronology of relevant events,[85] all of which are covered above.
[85]Ibid [20].

Then, VCAT deals with, and grants, the application made by consent for an extension of time.[86]
[86]Ibid [21]–[22].

Thereafter, under the heading ‘The legal context’, VCAT sets out lengthy passages from the written submissions of the Board.[87] VCAT does not, at this point, express or foreshadow any intention not to accept any part or parts of the passages about to be set out.[88] The passages quoted by VCAT include, first, the salient provisions of s 155 and 156 of the National Law. They include, next, the following parts of s 3 of the National Law, being the only parts thereof that the Board had cited:
[87]Ibid [23].
[88]But see n 92 below.

(2) The objectives of the national registration and accreditation scheme are—
(a) to provide 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; …

(3) The guiding principles of the national registration and accreditation scheme are as follows—
…
(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

The next part of VCAT’s quotation from the Board’s written submissions reproduces the next heading contained in those submissions, namely ‘The applicable principles’, and it reproduces all of the paragraphs that had appeared under that heading. Those paragraphs had commenced as follows:
Section 156 of the National Law empowers the Board to take immediate action against a medical practitioner. Immediate action is ‘designed to operate for an interim period, until an investigation or disciplinary proceeding with respect to the medical practitioner is able to be concluded’.[89] The purpose of that action is ‘to put measures in place to protect against, or ameliorate, harm pending the determination’ of that process.[90]
[89]Here, the Board had cited Leow [78] (Niall JA).
[90]Citing, again, Leow [78].

The succeeding paragraphs of the Board’s written submissions to VCAT, as quoted by VCAT, were headed ‘Section 156(1)(a)’. Omitting paragraph and subparagraph numbers, they read as follows:
The power to take immediate action under section 156(1)(a) is only enlivened if the Board (or the Tribunal on review) has formed a reasonable belief that:
·because of the practitioner’s conduct, performance or health;
·the practitioner poses a serious risk to persons; and
·immediate action is necessary to protect public health or safety.

The first of these matters is a factual one; the remaining two are evaluative.[91] All three matters, however, require the formation of a ‘reasonable belief’.[92]
[91]Citing Bernadt [66]; Ahmad v Medical Board of Australia [2017] VCAT 1646, [71] and Ellis v Medical Board of Australia [2020] VCAT 862, [50] (‘Ellis’).
[92]If and insofar as this part of the Board’s written submissions to VCAT amounted to a submission along the lines of any of the Board’s present submissions to this Court, plainly VCAT did not, in the end, accept it, and this notwithstanding that, according to the Board, VCAT did ‘recognise’ that its ‘first task’ was ‘to form a reasonable belief as to Dr Sami’s conduct’: see Board’s outline [53].

·A reasonable belief ‘does not require proof of conduct’ but rather ‘an inclination of the mind toward assenting to, rather than rejecting, a proposition’.[93]
[93]Citing Farshchi v Chinese Medicine Board of Australia [2018] VCAT 1617, [44] (‘Farshchi’).
·‘The underlying facts giving rise to the reasonable belief… do not have to be established on the balance of probabilities, however there must be proven objective circumstances sufficient to justify the belief.’[94] In this regard, the VCAT has said this about decisions made under s 156(1)(a):[95]
[94]Citing ibid [46].
[95]Citing Syme v Medical Board of Australia [2016] VCAT 2150, [35]–[37] (‘Syme’).
In WD v Medical Board of Australia [2013] QCAT 614 Horneman-Wren J Deputy President of the Queensland Civil and Administrative Tribunal (QCAT) summarized the approach generally relevant to the merits of an IAC decision as follows:
1.an immediate action order does not entail a detailed enquiry;
2.it requires action on an urgent basis because of the need to protect public health and safety;
3.the taking of immediate action does not require proof of the conduct; but rather whether there is a reasonable belief that the registrant poses a serious risk;
4. an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;
5.the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;
6.the material available should be carefully scrutinised in order to determine the weight to be attached to it;
7.a complaint that is trivial or misconceived on its face will clearly not be given weight;
8.the nature of the allegations will be highly relevant to the issue of whether the order is justified.

·The Tribunal has regarded the following description—as to when it might hold the requisite reasonable belief—as ‘uncontroversial’:[96]
[96]Citing ibid quoting Oglesby v Nursing and Midwifery Board of Australia at [2014] QCAT 701, [20] (‘Oglesby’) (emphasis in original).
I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.

Three more points may be made about section 156(1)(a).
First, in determining whether it holds a reasonable belief that—because of the practitioner’s conduct, performance or health—the practitioner poses a serious risk to persons, the Board (and the Tribunal on review) should consider these questions:
·what serious risk does the practitioner pose (in short: ‘serious risk of what’)?; and
·to whom does the practitioner pose that serious risk (in short: ‘serious risk to whom’)?[97]

Approaching the matter in this way greatly assists the Board (and the Tribunal on review) to determine whether it holds a reasonable belief that it is necessary to take immediate action, and what form that immediate action should take.
Secondly, whilst the safety of the public must be the ‘prime concern’ under section 156(1)(a), that safety should be secured with as little damage to the practitioner as is consistent with its maintenance.[98]
And thirdly, immediate action may be taken under section 156(1)(a) where the alleged conduct is the same as the conduct to which the serious risk relates. But it is not confined to that scenario. For example, immediate action has been taken under that section where the alleged conduct (of posting material on social media) was not the same as the conduct to which the serious risk relates (of harming patients in the practitioner’s practice).[99]

[97]Citing Syme [160]–[170], Ellis [91]–[92].

[98]Citing Kozanoglu [126].

[99]Citing Ellis [88].

The next part of VCAT’s quotation from the Board’s written submissions relates in particular to the meaning and operation of s 156(1)(e). Since the Board ascribes no legal error to VCAT’s decision in respect of s 156(1)(e), it is unnecessary to reproduce that part of the quoted written submissions.[100]
[100]See Sami v Medical Board of Australia [2021] VCAT 447, [23] being the part thereof quoting [34]–[42] of the Board’s written submissions to VCAT.

Next, VCAT refers to the judgment of the Victorian Court of Appeal in Kozanoglu v The Pharmacy Board of Australia (‘Kozanoglu’),[101] which was given in 2012—the year before Bernadt was decided by the Western Australian Court of Appeal—and which, as indicated in more detail below, was discussed in Bernadt, with one of the judges in Bernadt appearing to suggest that Kozanoglu should not be followed.[102] Without mentioning Bernadt in this context, VCAT says:[103]

In Kozanoglu, the Court of Appeal said that reviews of immediate action are neither an appeal in the strict sense, nor a rehearing de novo. Rather, they are a hybrid. Evidence which was not before the Board when it made its decision to suspend Dr Sami’s registration may be put before the Tribunal if it bears directly upon that decision as originally taken. Both parties contended that all the additional material that was put to the Tribunal was properly able to be accepted by it. We agree.

[101](2012) 36 VR 656.

[102]Bernadt [60]–[61] (McLure P).

[103]Sami v Medical Board of Australia [2021] VCAT 447, [24].

VCAT then turns to the events of 30–31 March 2019 at the nightclub.[104] VCAT identifies in broad and preliminary terms various differences and discrepancies between the accounts of XYZ and of Dr Sami respectively; and, again in broad and preliminary terms, it identifies the rival contentions of the parties as to which versions of the disputed events should be relied upon. In the course of doing so, VCAT comments as follows:

We are conscious of the fact that in relation to this aspect, as is the case for all aspects of the events which occurred, we do not have full evidence—far from it.[105]
…
Again, we are conscious that we are far from having full evidence about this matter.[106]

[104]Ibid [25]–[37].

[105]Ibid [30].

[106]Ibid [36].

Next, VCAT refers in more detail to, and makes further comments on, the withdrawal of the criminal charges.[107] VCAT notes that the Board had submitted that this was a neutral factor, whereas Dr Sami had submitted that the most obvious inference was that the prosecuting authority had determined that there was no reasonable prospect of conviction. VCAT further notes that the pendency of the Board’s own disciplinary investigation was predicated on the assumption that XYZ would provide a statement to AHPRA consistent with her police statement of 1 May 2019. (Apparently, that had not yet occurred.) VCAT then observes that, on the authorities, ‘mere allegations’ might be sufficient to create the ‘reasonable belief as to the existence of risk under s 156(1)(a)’; but that the available material should be ‘carefully scrutinised’.[108] VCAT finds, on this point, that the withdrawal of the criminal charges is a relevant matter. The situation had changed. The possibility that Dr Sami might be found guilty of rape and sexual assault had now been excluded. It was indeed to be inferred, VCAT says, that a judgment had been made by the prosecuting authority that if the prosecution were to proceed it would not result in findings of guilt. On the other hand, VCAT acknowledges that the mere withdrawal of criminal charges does not automatically entail that the conduct alleged by a complainant should be disregarded in a s 156(1)(a) analysis. It remains necessary to consider the alleged conduct. VCAT proceeds here, and later in the reasons, to consider the significance of the withdrawal of the criminal charges for the analysis under s 156(1)(e); but, for the reasons already mentioned, I need not refer further to that aspect.
[107]Ibid [38]–[46]
[108]Ibid, [43] citing Syme [35].

Next, VCAT refers to authorities concerned with the concept of ‘conduct’ for the purposes of s 156(1)(a).[109] It seems that, before VCAT, the Board had relied mainly on Bernadt in this regard, just as it still does in this Court. VCAT considers Bernadt. Indeed, VCAT sets out in full paragraph [66] of the judgment of the President of the Court of Appeal of Western Australia in that case, being the very paragraph on which the Board places principal reliance in this Court.[110] VCAT notes that, in Bernadt, in this connection, the President, McLure P, had cited the judgment of the High Court in George v Rockett,[111] a case concerning the power to issue a search warrant. VCAT concludes this particular section of its reasons by saying:[112]

While we take this decision[113] as indicating that there is a lower bar for consideration of the factual component in the s156(1)(a) analysis than say, making findings of fact in an actual disciplinary proceeding against a doctor, we do note that the situation where it is proposed to issue a search warrant is different to the situation where immediate action by way of suspending a doctor’s registration is proposed.

The Board does not suggest in this Court that anything in this particular section of VCAT’s reasons, in itself, reveals error.

[109]Sami v Medical Board of Australia [2021] VCAT 447, [47]–[52].

[110]See further below.

[111](1990) 170 CLR 104.

[112]Sami v Medical Board of Australia [2021] VCAT 447, [52].

[113]I interpolate that VCAT is here referring to Bernadt.

The next section of VCAT’s reasons[114] contains a summary of the competing submissions made by the parties about the likelihood of their preferred versions of the events of 30-31 March 2019 being correct. Again, the Board does not suggest that this section of the reasons reveals any error, whether of fact or of law.
[114]Sami v Medical Board of Australia [2021] VCAT 447 [53]–[60].

Rather, it is the next section of the Board’s reasons, headed ‘Conduct – consideration’ on which the Board principally focuses in this Court.[115] In those circumstances, it is desirable to set out the six paragraphs of this section of VCAT’s reasons in full and as they were later quoted, in the Board’s written submissions in this Court, with the Board’s underlining for emphasis:[116]
[115]Board’s outline, [40]. See also Board’s outline, [42].
[116]Sami v Medical Board of Australia [2021] VCAT 447, [61]–[66]. Emphasis added by the Board: Board’s outline, [40].

Conduct – consideration
61.It is clearly the case that if the allegations of violent and non-consensual acts by Dr Sami were formally alleged and proved, this would raise very serious questions about Dr Sami’s dependability, ethics and suitability to practise. And in the event it was proved that he was aware of the doctor-patient relationship when he engaged in that conduct, that would suggest a serious breach of the Code of Conduct relating to sexual boundaries in the doctor–patient relationship. In particular, in relation to abuse of the power imbalance between the male doctor and his female patient, and abuse of the patient’s trust.
62.However, in considering ‘conduct’ under s 156(1)(a), in our view, the withdrawal of the criminal charges is of significance, and does weigh in Dr Sami’s favour. We also note the submission that Dr Sami’s statement about recognising his patient detracts from his credibility. Beyond that, we will not deal with the opposing arguments in detail. To do so would involve inappropriately descending into a forensic analysis of the minutiae of the evidence, and whether some matters provide substantial or incremental support for one side or the other. This is clearly not the forum for that. We do not believe that at this point, any of those matters loom as factors which have a major influence on the analysis.
63.Thus we do not draw firm conclusions about the nature of the ‘conduct’ in the way the competing submissions of the parties invited us to do.
64.However, the limited information available to us does not cause us to conclude that the complainant’s version must be regarded as misconceived, such that it should be rejected for the purpose of the s 156 analysis.
65.Accordingly, we have regard to the allegations as put in the complainant’s statement of 1 May 2019, but taking into account the fact that the criminal charges have been withdrawn, and the fact that Dr Sami has an alternative version of the events which took place on 31 March 2019.
66.That is, we do not regard it as obligatory for us to determine that we will base our analysis of risk on one version or the other. In our view, here, it is appropriate to undertake a more holistic analysis, which weighs the degree of risk to persons against the factual matrix in its present necessarily incomplete state.

Next, VCAT addresses itself to the question of serious risk for the purposes of s 156(1)(a). The parties had agreed at VCAT that the Tribunal should consider the questions ‘serious risk of what?’ and ‘serious risk to whom?’[117]
[117]Sami v Medical Board of Australia [2021] VCAT 447, [67].

The Board had submitted to VCAT that Dr Sami’s alleged conduct posed a serious risk of inflicting emotional and/or psychological harm, and that he posed that risk to all patients (and not just female patients).[118] The Board had further submitted to VCAT that Dr Sami’s alleged conduct demonstrated a complete disregard for the well-being of his patient and a preparedness to abuse his position of trust and power for his own sexual gratification. Relying on the language of the decision in Farshchi v Chinese Medicine Board of Australia (‘Farshchi’)[119], the Board had submitted to VCAT that practitioners of this kind were a danger to all members of the community, irrespective of their gender, in that such practitioners lack ethical judgment and are not dependable or trustworthy.[120]
[118]Ibid [68].
[119][2018] VCAT 1617.
[120]Sami v Medical Board of Australia [2021] VCAT 447, [69]–[70].

For Dr Sami it had been submitted to VCAT that his version of events should be accepted for the purposes of the review and that, on that basis, the prospect of Dr Sami posing a serious risk was fanciful.[121] However, it had also been submitted for Dr Sami that even if XYZ’s version were given credence, there would be no serious risk to persons.[122]
[121]Ibid [71].
[122]Ibid [72].

VCAT’s reasons indicate that the matters referred to on behalf of Dr Sami as indicating little or no risk were five fold.[123] First, it had been pointed out that the conduct (on any version) did not occur in the clinical setting, but rather at a licensed venue where Dr Sami was inebriated; whereas, according to Dr Sami, he had previously been only a moderate drinker and since July 2019 had not drunk alcohol at all. Second, it had been submitted that the conduct occurred in a remarkable confluence of circumstances, the chances of which occurring again were highly remote. In particular, it had been said that Dr Sami was, at the time, subject to a series of personal stressors (as indicated above) all of which he indicated had since receded. Third, it had been submitted that the abovementioned consequences incurred by Dr Sami as a result of the incident (including career and financial consequences and stress and shame and embarrassment) would act as a deterrent to him behaving in a comparable way again. Fourth, it had been submitted that Dr Sami’s own personal response to the incident reduced the risk. In that regard, reference had been made to Dr Sami’s insight generally, his acceptance of responsibility for the incident, his profound regret at letting down the profession, his having undertaken CPD courses and his treatment by a consulting psychiatrist, which was continuing. As mentioned above, a report had been provided to the Tribunal from the consultant psychiatrist. It expressed the opinion that Dr Sami had been profoundly affected by the events of 2019, while recognising that those events had undoubtedly impacted on his patient, XYZ, too. The psychiatrist had said in the report that Dr Sami appeared sincerely regretful about what had happened and had a sense of responsibility to manage his own health and behaviour in future, leading to a belief on the part of the consultant psychiatrist that Dr Sami did not pose an ongoing serious risk to others. The Board had submitted to VCAT that, while the psychiatrist’s report could be taken into account, the weight to be accorded to it should be reduced because it was based on Dr Sami’s version of the events of 30 and 31 March 2019, not the complainant’s. VCAT expresses its acceptance of the Board’s submission in that regard.[124] Fifth, it had been submitted for Dr Sami that it was relevant to take into account that he had been suspended for the whole of the previous 20 months, even though he had been the subject of criminal charges for only three of those months. If he remained suspended the most likely scenario, it had been submitted, was that he would be prevented from practising for two and a half years, or perhaps more. In this context, Dr Sami’s counsel had reminded VCAT of the statement of the Court of Appeal in Kozanoglu[125] to the effect that, while the safety of the public must necessarily be the prime concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance.
[123]Ibid [73]–[85].
[124]Ibid [82].
[125]Kozanoglu [126].

VCAT goes on to consider these competing submissions as to serious risk. VCAT notes that, during final addresses, it had invited senior counsel for the Board to provide greater specificity in relation to the Board’s submission as to risk, to assist VCAT in considering the questions ‘serious risk of what?’ and ‘serious risk to whom?’. After consulting with his client, senior counsel for the Board had indicated to VCAT that he did not have instructions to be any more specific; that serious risk was to be defined broadly; and that the authorities did not require any more specificity than had been provided. VCAT, however, observes that an argument for taking immediate action will always be more convincing if a more specific risk is able to be pointed to; and VCAT says that that indeed is the effect of the authorities, insofar as they endorse the notion of seeking to answer the two specific questions.[126] Then, in the following paragraphs, which are quoted in full in the Board’s submissions to this Court (with the Board’s underlining for emphasis as indicated below) and which are said in the submissions to reflect the same error as is alleged to be evident in [61] to [66] of VCAT’s reasons,[127] VCAT continues:[128]
[126]Sami v Medical Board of Australia [2021] VCAT 447, [86]–[87].
[127]Board’s outline, [41].
[128]Sami v Medical Board of Australia [2021] VCAT 447, [88]–[97]. Emphasis as added by the Board in [41] of the Board’s outline. See also Board’s outline, [42].

Section 11 of the WA Act provided:

11 Review of decision by State Administrative Tribunal as responsible tribunal
A reference in the Health Practitioner Regulation National Law (Western Australia) to an appeal against a decision is, for an appeal to the State Administrative Tribunal as the responsible tribunal, a reference to a review of the decision as provided under the State Administrative Tribunal Act 2004 Part 3 Division 3.

Part 3 Division 3 of the State Administrative Tribunal Act 2004 (WA) provided expressly that a review thereunder was a review de novo.[231]
[231]State Administrative Tribunal Act 2004 (WA) s 27.

Dr Bernadt’s appeal to the WASAT against the immediate action decision occupied five hearing days, and the parties approached the proceeding as if it was in the nature of a hearing of an allegation of professional misconduct.[232] Both sides were represented by counsel and the appellant and the assessor were cross-examined.[233] This may be contrasted with Dr Sami’s case at VCAT, which, as all sides agreed, was not to be treated as the hearing of an allegation of professional misconduct; there was no oral evidence and no cross-examination; and it was completed inside a single day.
[232]Bernadt [11] (McLure P); [95], [98] (Newnes JA).
[233]Bernadt [95], [98] (Newnes JA).

WASAT upheld Dr Bernadt’s suspension. On the way to its decision, WASAT made the following five rulings, being principally rulings of law:[234]
[234]See and compare Bernadt [12] (McLure P); [119] (Newnes JA).

· the power to take immediate action under s 156 of the National Law is interim or interlocutory in nature;

· however, because a practitioner’s reputation or capacity to earn a livelihood in their registered vocation was at stake, WASAT must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach, in order to form a reasonable belief under s 156 of the National Law;

· after a decision to take immediate action in relation to a practitioner, s 158 of the National Law imposes an obligation on the National Board to take ‘further action’ in relation to that practitioner;

· nevertheless, a decision to take immediate action should not be expressed as continuing to have effect until the final determination of further action to be taken by the National Board, because this would conflict with s 159(2) of the National Law;

· WASAT had no power to refer the matter back to the National Board with a direction that it take ‘further action’ under s 158, because WASAT had no jurisdiction to review the failure of the National Board to make a decision in relation to further action, its jurisdiction being limited to reviewing the decision of the Board to suspend Dr Bernadt’s registration under s 156.

However, for the main part, the matter was determined on the facts and the evidence. WASAT upheld the suspension mainly because it accepted the evidence and the views of the assessor as against those of Dr Bernadt.

Dr Bernadt appealed against WASAT’s decision to the Court of Appeal. Under the relevant Western Australian legislation, such an appeal extended to questions of fact as well as questions of law.[235] There were six lengthy grounds of appeal, which were later summarised by one of the Judges of Appeal,[236] in a way apparently accepted by the other two members of the Court,[237] as follows:
[235]State Administrative Tribunal Act 2004 (WA) ss 105(13)–(14), Sch 1. Compare VCAT Act s 148.
[236]Bernadt [121] (Newnes JA).
[237]See ibid [1] (McLure P) and [210] (Murphy JA).

1. The Tribunal erred in fact by forming the belief that the appellant posed a serious risk to persons and that his suspension from practice was necessary to protect public health on the ground that he:
(a) failed to take or record adequate medical histories from patients (ground 1);
(b) failed to conduct adequate audiometry on patients (ground 2);
(c) lacked up-to-date medical knowledge (ground 3); and
(d) failed to follow up patients and did not have a system in place to follow up patients (ground 4).
2. The Tribunal erred in law in failing to conclude that the power of the respondent under s 156 of the National Law was only a power to take action pending final determination of the further action which the respondent was obliged to take against a registered health practitioner by s 158 (ground 5);
3. Having found that s 158 of the National Law imposed an obligation on the respondent to take further action against the appellant and that the respondent had failed to take further action, the Tribunal erred in law and fact by failing to refer the matter back to the respondent pursuant to s 29(3)(c) of the SAT Act (ground 6).

Thus, grounds 1–4 related directly and solely to the evidence and the facts, and that is exactly how they were understood and dealt with.[238]
[238]Ibid [170]–[206] (Newnes JA) with whom McLure P ([1]) and Murphy JA ([210]) agreed in this regard.

Ground 5 raised a point of construction concerning the inter-relationship between ss 156, 158 and 159 of the National Law. This ground related to the third and fourth of WASAT’s rulings of law as set out above. As originally framed, Dr Bernadt’s complaint under ground 5 was that WASAT’s suspension of his registration was not, but should have been, expressed to expire upon the conclusion of the ‘further action’ which, according to WASAT’s own third ruling of law, the National Board should have commenced after the National Board had suspended Dr Bernadt.

In oral submissions before the Western Australian Court of Appeal, counsel for Dr Bernadt went beyond the terms of ground 5 as pleaded. Counsel submitted, in effect, that the obligation of the National Board to decide, and to state in the notice under s 158, what further action the National Board proposed to take was an integral part of the decision to take immediate action, and that the failure of the Board in this case to do so had the result that the immediate action was invalid.[239]
[239]Ibid [124] (Newnes JA).

Ground 6 asserted, in essence, that WASAT did have the requisite jurisdiction and power to refer the matter back to the National Board with a direction under s 158 that it take ‘further action’ and that WASAT should have given such a direction.

While the appeal to the Western Australian Court of Appeal was pending, the National Board actually commenced ‘further action’ against Dr Bernadt. Thus ground 6 was overtaken by events and had lost any utility. It was not pressed on the hearing of the appeal.[240]
[240]Ibid [168] (Newnes JA).

There is nothing to indicate that the National Board raised any cross-contention of fact or law in Bernadt.

The Court of Appeal dismissed the appeal on all grounds. Each judge (McLure P, Newnes JA and Murphy JA) delivered separate reasons. Before me, the Board relies mainly on the judgment of McLure P.

However, it should be noted immediately that McLure P commenced her reasons by saying:[241]

I agree with Newnes JA that the appeal should be dismissed. I agree that grounds of appeal 1, 2, 3, 4, and 6 should be dismissed for the reasons given by Newnes JA. I propose to state my own reasons on a number of issues of statutory construction that arise for determination in this appeal.

[241]Ibid [1].

By contrast, Newnes JA did not refer to the judgment of McLure P at all.

Murphy JA commenced his judgment as follows:[242]

I have had the advantage of reading in draft the judgments of McLure P and Newnes JA. I respectfully adopt Newnes JA’s observations as to the relevant background, the grounds of appeal and the issues. I respectfully agree with Newnes JA that grounds 1, 2, 3, 4 and 6 should be dismissed for the reasons that he gives. The following reasons are directed to the issues raised in ground 5.

Murphy JA made no other reference to the judgment of McLure P.

[242]Ibid [210].

In those circumstances, it may be said that the leading judgment is that of Newnes JA, not that of McLure P.

Further, while each of McLure P, Newnes JA and Murphy JA held that neither ground 5 nor its ‘extension’ should be upheld, each judge did so for different reasons. And even though ground 5 and its extension related principally to the relationship between ss 156, 158 and 159 rather than to the construction of s 156 itself, the differences between McLure P, Newnes JA and Murphy JA in relation to ground 5 are indirectly relevant for the purposes of the present case, as I will further mention in due course.

At this stage, however, it is more important to note that there was no ground of appeal at all that criticised WASAT’s reasoning in relation to what a National Board or an appellate tribunal needs to do by way of considering the evidence or other material before it in a matter under s 156(1)(a). Dr Bernadt was certainly not contending that WASAT should have adopted more stringent fact-finding techniques or applied some different standard of proof. More particularly, there was no ground of appeal at all that expressly or impliedly raised the proper construction of s 156(1)(a) in relation to fact-finding. Nor, apparently, was the respondent Board troubled about WASAT’s reasoning in those respects. As mentioned above, there is no indication that it raised raise any cross-contention at all.

It follows, in my view, that anything that may have been said in Bernadt about the principles to be applied in relation to factual issues arising under s 156(1)(a) had to be obiter, not ratio. This context is also significant for the purposes of interpreting anything that the judges in Bernadt may have had to say on this topic.

It is true that McLure P expressly noted that WASAT had ruled that ‘[WASAT] must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach, in order to form a reasonable belief under s 156 of the National Law’;[243] and it is clear that, whatever position the parties may have taken on the appeal, her Honour thought it desirable to contradict WASAT on this matter—perhaps to indicate to Dr Bernadt that, on any view, he was far from having a legitimate complaint about WASAT’s conclusions on the facts and the evidence. In any event, her Honour made her point in this respect in the following passage, being the above mentioned passage on which the Board has placed great store in this Court:
[243]Ibid [12].

[62] The starting point for determining what is required in order to make an immediate action order under s 156(1)(a) is the statutory text. The starting point is not the question whether power can be characterised as interim, interlocutory or otherwise.
[63] The Board (and [WASAT] in the exercise of its review function) must believe, and have reasonable grounds for believing, the matters specified in s 156(1)(a)(i) and (ii): Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 [130]–[145].
[64]The existence of a reasonable belief is a jurisdictional ‘fact’ that enlivens the power in s 156(1)(a) to take immediate action: Eshetu [130]; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 [57]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 [183].
[65]It is necessary to identify with precision what it is that must be the subject of the reasonable belief. There are three components in subpars (i) and (ii) of s 156(1)(a), one factual and two evaluative. They are:
(i) (1) because of (that is, by reason of) the practitioner’s conduct, performance or health
(2) the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety.

[66] The ‘reasonable belief’ requirement applies, in my view, to the three components, including the factual substratum ((i)(1)) on which the evaluative assessments (in (i)(2) and (ii)) are to be made. That being so, the fact or facts directly in issue concerning a practitioner’s conduct, performance or health do not have to be proven on the balance of probabilities: George v Rockett (1990) 170 CLR 104. However, there must be proven objective circumstances sufficient to justify the belief.[244]

[244]Ibid [62]–[66]. Board’s emphasis in Board’s outline [18].

I would respectfully make the following comments on her Honour’s observations.

In the first sentence of [62], her Honour makes clear that she is about to deal with what is required to make an immediate action order, as distinct from not making one. In the next sentence, her Honour opines that the question whether the power under s 156(1)(a) can be characterised as interim, interlocutory or otherwise is not the ‘starting point’. However, her Honour does not say that such a characterisation, if appropriate, would be irrelevant to the statutory interpretation exercise. It is true that, elsewhere in the judgment, her Honour seems to indicate that it is her view that the power to take immediate action should not be characterised as interim or interlocutory[245] or, at least, that not all decisions under s 156(1)(a) are intended to be interim or interlocutory.[246] However, most unhelpfully to the Board’s arguments before me that are claimed to be based on considerations of precedent, McLure P appears to disagree quite strongly with the unanimous judgment of the Victorian Court of Appeal in Kozanoglu insofar as the Court in Kozanoglu ‘described s 156 as providing only interim protection’.[247] In Bernadt, on this particular point, Murphy JA expressed a view comparable with that of McLure P, albeit with a qualification:[248]

It is unhelpful to label the Board’s powers under div 7 as ‘interlocutory’ in nature as contended for by the appellant. Even though they may be exercised from time to time, they are nevertheless final in that they take effect for the period referred to in s 159(2) of the Law as discussed in [283] to [285] above. However, they are also exercisable in the context that the Board must give effect to any decision by a panel or the Tribunal (s 205). Accordingly, the Board’s immediate action may, in due course, effectively be overtaken by a decision of a panel or the Tribunal.

As indicated above, Murphy JA indicated that his separate judgment was directed solely to ground 5—the ground concerning the inter-relationship between ss 156, 158 and 159.[249] So it seems that his Honour’s words were not directed to any issue or question or point about the facts or fact-finding. However that may be, there remains a contrast between the judgment of Murphy JA in Bernadt and Kozanoglu, which is similarly unhelpful to the Board’s argument. And, in addition to Kozanoglu, there are many other instances where immediate action taken under s 156(1)(a) has been described as interim or interlocutory. For example, in Bernadt itself, Newnes JA, albeit while he himself was dealing with ground 5, said that immediate action was ‘of an interim nature’ and referred to Kozanoglu with apparent approval in this respect.[250] Further instances are referred to in [4], footnote 4 and [54] above, including an instance in the Board’s own submissions to VCAT in this very matter.[251]

[245]Bernadt [48], [60]–[61].

[246]Ibid [49].

[247]Ibid [60]–[61].

[248]Ibid [298].

[249]Ibid [210].

[250]Ibid [151].

[251]See also, eg, Hocking v Medical Board of Australia [2014] ACTSC 48, [171]; Gertsman v Medical Board of Australia [2020] VCAT 1367, [70].

Returning more specifically to [62]–[66] of the judgment of McLure P in Bernadt, I note that, in [63], her Honour says that the Board (and the review body) must believe, and have reasonable grounds for believing the matters ‘specified’ in s 156(1)(a)(i) and (ii). As explained above, in my view only two things that are required to be reasonably believed are ‘specified’ in s 156(1)(a). Her Honour says nothing to the contrary in [63].

There is no controversy about the statement of McLure P in [64] that the ‘existence of a reasonable belief is a jurisdictional “fact” that enlivens the power in s 156(1)(a) to take immediate action’. However, it does not help the Board that her Honour there uses the singular, referring to ‘a’ reasonable belief.

Correspondingly, her Honour thrice uses the singular in [65], referring to ‘what it is that must be the subject of the reasonable belief’.[252]
[252]My emphasis.

Incidentally, I note that senior counsel for the Board conceded at the final hearing, correctly in my view, that when McLure P said that ‘it is necessary to identify with precision what it is that must be the subject of the reasonable belief’, her Honour was referring to the requirements of the construction exercise on which she herself had embarked; she was not saying, here, that it was necessary for a National Board or a review tribunal to identify anything.[253]
[253]T 60.

Having several times used the singular in referring to the requisite ‘reasonable belief’, McLure P then says that there are three ‘components’ in sub-paragraphs (i) and (ii) of s 156(1)(a), one factual and two evaluative. Her Honour breaks up s 156(1)(a)(i) so as to refer separately to two of those ‘components’, using punctuation different from the punctuation of the provision as enacted. Doing such a thing can sometimes lead to errors of understanding or interpretation. I venture to repeat what I said in Mornington Peninsula Beach Box Association Inc v Mornington Peninsula Shire Council in this regard:[254]
[254](2021) 248 LGERA 142, [109].

I also bear in mind the following warning stated by Callinan and Heydon JJ in XYZ v Commonwealth:[255]
[255](2006) 227 CLR 532, [176].
It is sometimes inappropriate to dissect a composite phrase into particular parts, give each part a meaning which that part has when used in isolation and combine those meanings so as to give the composite phrase a meaning at odds with the meaning it has when construed as a composite phrase:[256]
[It is a] fallacy … to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence … This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.

Likewise, in Bourne v Norwich Crematorium Ltd[257] in a passage picked up by Professor Pearce in his leading work on statutory interpretation in Australia,[258] Stamp J said:
Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.

[256]Quoting R v Brown [1996] AC 543, 561 (Lord Hoffman, Lord Brown-Wilkinson concurring), approved in Collector of Customs v Agra-Gevaert Ltd (1996) 186 CLR 389, 396–397 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ).

[257][1967] 1 WLR 691, 696.

[258]Pearce (n 146) [4.33].

The Board’s submissions in the present case, which I regard as erroneous, may be attributable to a misreading of s 156(1)(a) that may, in turn be due to the way in which the words of s 156(1)(a) are presented in [65] of the judgment of McLure P. On the other hand, I do not infer from her Honour’s words that she herself meant what the Board now attributes to her. Her Honour spoke of ‘components’. A component is a part of a whole. It is not separate from the whole. In any event, her Honour said nothing to the effect that the ‘components’ had to be considered separately, or in any particular order. To read s 156(1)(a) in such a way would be wrongly to disregard the language and syntax of the provision as a whole.

In the last paragraph, [66], of the passage in question, McLure P commences by again using the singular (‘The “reasonable belief” requirement’),[259] consistently with my view that the statutory task for the National Board or the appellate tribunal is an integrated one which admits of an ‘holistic’ approach of the kind followed by VCAT in the present case. McLure P says that, in her view, the reasonable belief requirement applies to the three ‘components’, ‘including the factual substratum ((i)(1)) on which the evaluative assessments (in (i)(2) and (ii)) are to be made’. Once again, to my mind, this language is consistent with seeing s 156(1)(a) as an integrated whole, without the artificial divisions for which the Board contends. The word ‘substratum’ connotes underlying connection, not separate existence or a separate exercise.
[259]My emphasis.

McLure P concludes that ‘the fact or facts directly in issue concerning a practitioner’s conduct, performance or health do not have to be proven on the balance of probabilities’, but that ‘there must be proven objective circumstances sufficient to justify the belief’.[260] This is not the same as saying that, by virtue of the provisions of s 156(1)(a), the National Board or the appellate tribunal must always or generally form and express a (reasonable) belief as to where the truth lies on ‘centrally important’ or ‘core’ or ‘essential’ points of fact, regardless of the state of the material, regardless of the way in which the parties themselves have approached the matter and regardless of whether the ultimate decision is to take immediate action or not.
[260]Bernadt [66] citing George v Rockett (1990) 170 CLR 104.

It was said in WD v Medical Board of Australia[261] that ‘an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations’. In my view, McLure P was not saying anything different. In saying that ‘there must be proven objective circumstances sufficient to justify the belief’, her Honour was, I consider, referring to objective circumstances sufficient to justify the belief actually specified in s 156(1)(a), namely that the practitioner poses a (conduct-related, performance-related or health-related) serious risk to persons and that it is necessary (accordingly) to take immediate action, as distinct from a belief that some ‘particular identified conduct’ actually occurred in the past. In my view, for the purposes of the immediate action regime (and for the purposes of s 156(1)(a) in particular), a very serious allegation made by a seemingly reliable person may well be capable of supplying ‘objective circumstances sufficient to justify’ the statutorily specified belief, even where the decision-maker does not form and express a ‘belief’ that the allegation is true. The position is even clearer in relation to the opposite case—a decision not to take immediate action (such as the present case).
[261][2013] QCAT 614. See the passage that was cited in VCAT’s reasons below, as reproduced in [54] above.

If, contrary to my view, McLure P’s observations were, in truth, to the effect that s 156(1)(a) contains an implied rule of the kind contended for by the Board, I would respectfully decline to follow them. However those observations may be read, they were not essential to her Honour’s conclusions on the actual issues in the case. Much less were they part of any ratio of the decision of the Court of Appeal as a whole, as I will further indicate in a moment. In addition, if those observations were to be read as the Board would have me read them, they would, I am convinced, be clearly wrong, for the reasons set out extensively above.

In my view, contrary to the Board’s submissions, there is absolutely nothing in the (leading) judgment of Newnes JA that supports the Board’s present case. Quite the reverse. While dealing with ground 5, Newnes JA spoke of the ‘interim nature’ of immediate action under Division 7, ‘as appears from the statutory language’;[262] and said that this is reflected in the use of the expression ‘immediate action’ which ‘suggests a certain standard of speediness on the Board’s part in order to provide interim protection of the public’, citing Kozanoglu.
[262]Bernadt [151].

This was also reflected, his Honour said, in the ‘relatively summary process’ provided for in Division 7.[263] Newnes JA continued:[264]

The Board is entitled, by way of immediate action, to suspend a practitioner’s registration, or impose a condition on it, on the basis of a reasonable belief that it is necessary to take such action because the practitioner’s conduct, performance or health poses a serious risk to persons. Whilst the practitioner must be given notice of the proposed immediate action before it is taken and an opportunity to make submissions on it, no provision is made at that stage for the practitioner to be given any real opportunity to test the factual basis of the Board’s belief.

[263]Ibid [152].

[264]Ibid. My emphasis.

Moreover, when Newnes JA commenced to deal with the factual and evidentiary grounds (grounds 1–4), his Honour said this:

The appellant contended under these grounds that the evidence before the Tribunal was insufficient to enable it to form a reasonable belief that the appellant posed a serious risk to persons and that his suspension from practice was necessary to protect public health.
Before turning to the particular grounds relied on by the appellant, it is necessary to identify the Tribunal’s task. An appeal to the Tribunal under s 199(1)(h) of the National Law is a hearing de novo: s 27(1) of the SAT Act. The task of the Tribunal is to produce the correct and preferable decision at the time of the review: s 27(2). Accordingly, the question before the tribunal was whether it reasonably believed that because of his conduct or performance the appellant posed a serious risk to persons and that it was necessary to take immediate action to protect public health. The Tribunal was not required to make findings as to whether in fact the appellant posed a serious risk to persons or whether immediate action was in fact necessary to protect public health. The question was whether the Tribunal held a reasonable belief as to those matters, not whether those matters were the fact.

Newnes JA then referred to George v Rockett[265] in which the High Court had said that belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and that the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.[266] Newnes JA then said that a ‘reasonable belief’ similarly requires the existence of facts which are sufficient to induce the belief in a reasonable person.[267] His Honour had already, plainly, identified the kind of ‘belief’ to which he was here referring, ie, the kind expressly specified in s 156(1)(a). So his Honour’s remarks here are entirely consistent with the absence of a general requirement on National Boards and appellate tribunals to express a preference as between competing versions of past events.

[265](1990) 170 CLR 104.

[266]George v Rockett (1990) 170 CLR 104, 116.

[267]Bernadt [173].

As mentioned above, in relation to grounds 1–4, Murphy JA simply agreed with Newnes JA.

I return to ground 5 of Bernadt (as extended) and its treatment by the three judges respectively. McLure P concluded that there was no universal obligation to take ‘further action’ under s 158 after taking immediate action under s 156, but that Dr Bernadt’s case was one in which further action should have been taken.[268] Newnes JA concluded that there was a universal obligation to take further action after immediate action, and that, therefore, the Board had been wrong not to do so straight away in Dr Bernadt’s case.[269] Murphy JA decided that there might, theoretically, be cases in which there would be no obligation to take further action, but that this was clearly not one of them.[270] Each judge held that the matter of further action was subsequent to the immediate action decision and did not impinge on the regime in s 159 for the expiry of immediate action. Each agreed that the omission to take further action did not render the immediate action decision invalid.[271]
[268]Ibid [78] (McLure P).
[269]Ibid [150]–[155] (Newnes JA).
[270]Ibid [297] (Murphy JA).
[271]Ibid [79] (McLure P); [157]–[163] (Newnes JA); [299] (Murphy JA)

As mentioned above, ground 5 is indirectly relevant for present purposes, in that the question whether immediate action should be regarded as ‘interim’ or ‘interlocutory’ was seen by each of the judges to be relevant to the disposition of ground 5.[272] This consideration also bears on the proper interpretation of s 156(1)(a) itself. Thus, the differences between the judges in Bernadt in relation to ground 5 make Bernadt all the less an authority that should induce me to accept the Board’s case.
[272]Ibid [62] (McLure P); [151] (Newnes JA); [298] (Murphy JA).

Further, as already mentioned, to the extent that McLure P and Murphy JA disagreed with Kozanoglu, their judgments would seem to carry less weight in Victoria. Counsel for the Board did not submit that Kozanoglu was wrongly decided in any way.

I have mentioned, also, that differences exist between the ancillary legislation of Western Australia and that of Victoria, as at the times when Kozanoglu and Bernadt, respectively, were decided. It may be that what the Court of Appeal said in Kozanoglu about a review in VCAT of an immediate action decision being neither de novo nor a strict appeal but rather a ‘hybrid’ will need to be reconsidered at some stage. After Kozanoglu was decided, in 2012, the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) was amended to introduce s 6A, which affects this.[273]
[273]Health Practitioner Regulation National Law (Victoria) Amendment Act 2011 (Vic) s 3.

What the Court of Appeal said in this respect in Kozanoglu was also possibly obiter, in that neither side in that case sought to rely on events or things that had happened after the National Board’s decision. I note that in at least some recent cases in Victoria, including the present, intervening events and things have been considered, on the basis that VCAT should have the most up-to-date material.[274]
[274]See, eg, Gertsman v Medical Board of Australia [2020] VCAT 1367, [86].

In any event, nothing further need be said about the appeal provisions because, quite correctly, the Board did not submit that they could affect the proper construction of s 156(1)(a) of the National Law.

Finally, I note that what happened, relevantly, at VCAT in Dr Sami’s case is fully consistent with the following observations of the ACT Administrative Tribunal in Helmy v Medical Board of Australia (‘Helmy’):[275]

By agreement of the parties there was no cross-examination of witnesses as to the facts of the alleged incidents. This approach is appropriate, for at least two reasons. First, the nature of the decision under section 156 of the National Law does not require the decision-maker to determine what has happened in relation to the current notification but rather to form a view as to risk, and then consider what, if any, action should be taken to address that risk. Secondly, the question of what, if anything, occurred during each incident may ultimately fall to a future tribunal or a Court to determine.

[275][2016] ACAT 97, [22].

In the very recent decision of the ACT Administrative Tribunal in Speldewinde v Medical Board of Australia[276] that passage of Helmy was cited with approval, and, indeed, it was said that the tribunal had been ‘assisted by the decision of Sami v Medical Board of Australia [2021] VCAT 449 and the principles there set out’.[277]
[276][2021] ACAT 97, [14].
[277]Ibid [19].

Conclusion

Leave to appeal will be granted. The appeal will be dismissed. Presumably, costs should follow the event, and I will make a provisional order accordingly, but reserve liberty to the parties to apply by written notice by 10 March 2022 for any different or further order as to costs.

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25 February 2022