Milad, Maher Wadie v Vocational Registration Appeal Committee
[1998] FCA 1662
•22 DECEMBER 1998
FEDERAL COURT OF AUSTRALIA
MEDICAL PRACTITIONERS – vocational registration – whether changes in regulations created a new statutory body or only changed the name of the existing statutory body.
Health Insurance (Vocational Registration of GP’s) Regulations 1989 (Cth)
Health Insurance Act 1973 (Cth) s 3F
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 16
Health Insurance Commission Act 1973
Health Insurance Amendment Act (No 2) 1996
Acts Interpretation Act 1901 (Cth) s 25B
Tan v Vocational Registration Appeal Committee (1996) 71 FCR 405 cited
Reid v Vocational Registration Appeal Committee (1997) 73 FCR 43 cited
MAHER WADIE MILAD v VOCATIONAL REGISTRATION APPEAL COMMITTEE AND GENERAL PRACTICE RECOGNITION APPEAL COMMITTEE
NO SG 102 OF 1997
JUDGE: O'LOUGHLIN J
DATE: 22 DECEMBER 1998
PLACE: ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 102 of 1997
BETWEEN:
MAHER WADIE MILAD
APPLICANTAND:
VOCATIONAL REGISTRATION APPEAL COMMITTEE
FIRST RESPONDENTGENERAL PRACTICE RECOGNITION APPEAL COMMITTEE
SECOND RESPONDENTJUDGE:
O'LOUGHLIN J
DATE OF ORDER:
22 DECEMBER 1998
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
These proceedings stand adjourned sine die.
Either party shall be at liberty to apply to relist the matter on seven days notice.
The respondent bring in short minutes in terms consistent with these reasons.
The applicant shall be at liberty to speak to the minutes.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 102 of 1997
BETWEEN:
MAHER WADIE MILAD
APPLICANTAND:
VOCATIONAL REGISTRATION APPEAL COMMITTEE
FIRST RESPONDENTGENERAL PRACTICE RECOGNITION APPEAL COMMITTEE
SECOND RESPONDENT
JUDGE:
O'LOUGHLIN J
DATE:
22 DECEMBER 1998
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
The applicant in these proceedings, Maher Wadie Milad, is a legally qualified medical practitioner. He seeks judicial review of a decision that he was not eligible for Vocational Registration within the meaning of the Health Insurance (Vocational Registration of GP’s) Regulations 1989 (Cth) and the Health Insurance Act 1973 (Cth) (“the Act”). In an Explanatory Memorandum that accompanied amendments that were made in March 1997 to statutory rules under the Act, the concept of Vocational Registration was explained in these terms:
“Vocational Registration was introduced in 1989 to encourage doctors wishing to enter general practice to complete appropriate postgraduate training and to ensure that their skills remain up to date by undertaking quality assurance and continuing medical education”.
Dr Milad obtained his degree in medicine at the Ain Shams University in Egypt in 1979 but, since February 1994, he has been in general medical practice at Lakemba, New South Wales.
On 26 December 1994 he applied for Vocational Registration. By letter dated 5 May 1995, the Vocational Registration Eligibility Committee wrote Dr Milad rejecting his application on the ground that he had insufficient experience in general practice.
Dr Milad appealed unsuccessfully to the Vocational Registration Appeal Committee. By letter dated 21 November 1995, the Chairman of that Committee wrote Dr Milad informing him of its decision, adding:
“The Committee noted your Egyptian experience. However, the Committee has been advised that references to general practice in connection with the Health Insurance Act 1973 and subregulation 4(1) of the Regulations are to be read as references to general practice in Australia.”
That statement was wrong. It was incumbent on the Appeal Committee to have regard to Dr Milad's past training and experience both inside and outside Australia: see Tan v Vocational Registration Appeal Committee (1996) 71 FCR 405; Reid v Vocational Registration Appeal Committee (1997) 73 FCR 43 at 53. However, Dr Milad took no further action until some two years later, when he instituted these proceedings in December 1997. He claimed in his affidavit dated 28 July 1998 that he was unaware of any right of judicial review until he received legal advice following upon the publication in medical journals of the decision in Reid's case (see above).
The matter presently before the Court is the determination of a preliminary issue that has been raised by the second named respondent to these proceedings. The respondents, as presently named, are the Vocational Registration Appeal Committee and the General Practice Recognition Appeal Committee. An appearance has been lodged on behalf of the second named committee (“the new committee”) by the Australian Government Solicitor and, at this stage in the proceedings, the parties have put to one side the need to have an appropriate contradictor named as a respondent. No appearance has been filed on behalf of the first named committee (“the old committee”) for the reasons that are later set out.
Shortly stated, the case for the new committee is that if, upon a hearing of the application for judicial review, the Court came to the conclusion that there had been a reviewable error on the part of the old committee, the Court would not be able to make an order of remission: see subs 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”)
Subsection 16(1) provides as follows:
“16(1)On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders:
(a)an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies;
(b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;
(c)an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d)an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties.”
It was submitted on behalf of the new committee that a simple order quashing or setting aside the decision would be of no help to Dr Milad – he would still lack the necessary registration: what he needed would be an order referring the matter of his application for registration “to the person who made the decision for further consideration . . .” with a direction that the decision-maker have regard to Dr Milad’s experience as a general practitioner in Egypt when assessing whether Dr Milad should or should not achieve vocation registration. In my opinion this submission is correct. This Court would not have the expertise nor does it have the evidence to make an assessment of Dr Milad’s medical capabilities.
The new committee then submitted that the old committee has, since its decision of 21 November 1995, been replaced by the new committee and, as it was the old committee that made the decision that is said to be the subject of Dr Milad's application for review, this Court would have no power to remit the matter if it came to the conclusion that there had been a reviewable error. In other words, the new committee claims that the Court could not remit the matter to the old committee as it is now defunct and it could not remit the matter to the new committee as it had not made the challenged decision. The new committee seeks, therefore, a declaratory order that this Court has no power to remit this matter in any circumstances.
The answer propounded on Dr Milad's behalf is that there has been no change of committee: the only change that has occurred has been a change of name. Hence, so it is claimed, as the same statutory body continues to exist - albeit under a different name - there would be power in the Court to remit.
To understand these respective arguments it is necessary to examine the history of the legislation. A convenient starting point is the introduction of s 3F into the Act with effect from 10 October 1989. That section established the Vocational Register of General Practitioners (“the Register”) which became operational on 1 December 1989.
Relevant extracts from s 3F, as originally enacted, are set out below - the reference to “the Commission” is a reference to the Health Insurance Commission established under the Health Insurance Commission Act 1973: see s 3 of that Act:
“3F.(1) The purpose of this section is to provide for the registration of certain medical practitioners as vocationally registered general practitioners.
(2)The Commission is to establish and maintain a Vocational Register of General Practitioners.
(3) . . .
(4)A medical practitioner may apply to the Commission for registration under this section.
(5) . . .
(6) if:
(a)the Managing Director of the Commission is satisfied that the Royal Australian College of General Practitioners has certified that the applicant's medical practice is predominantly general practice and that the applicant has training and experience in general practice that make it appropriate for the applicant to be registered under this section; or
(b)the applicant is, in accordance with the regulations, eligible for registration under this section;
the Managing Director shall, within 14 days after receiving the application, enter the applicant's name in the Register.
(7) . . .
(8) . . .
(9) . . .
(10) . . .”
The issue of eligibility for registration was then and remains a matter of importance to medical practitioners. For example, only those who are registered are entitled to use certain new items in the Medical Benefits Schedule which attract higher fees. Although registration is not compulsory, it is common ground that there are financial benefits available to registrants and it is also accepted that unsuccessful applicants are “aggrieved” persons within the meaning of the ADJR Act.
The Regulations that were referred to in par 3F(6)(b) of the Act were the Health Insurance (Vocational Registration of GP's) Regulations 1989 (Cth). These regulations will be referred to as “the 1989 Regulations”.
Pursuant to reg 3 of the 1989 Regulations, a medical practitioner was able to have his or her eligibility for registration considered by the Vocational Registration Eligibility Committee (“the Eligibility committee”). In other words, the practitioner had a choice of applying to the Managing Director of the Commission under subs 3F(4) of the Act or to an Eligibility Committee under the 1989 regulations. The practitioner's eligibility for registration, where he or she had proceeded under the regulations, was found in sub-reg 5(1). It stated:-
“5.(1)A medical practitioner is eligible for registration where an Eligibility Committee certifies:
(a)that the practitioner's medical practice is predominantly general practice; and
(b)that the practitioner has training and experience in general practice that make it appropriate for the practitioner to be registered.”
It will be noted that the two conditions precedent to eligibility in sub-reg 5(1) were the same as those contained in par 3F(6) of the Act save that an Eligibility Committee was the certifying party under the regulations, whilst the Royal Australian College of General Practitioners (“the RACGP”) was the certifying party under the Act.
Regulation 4 of the 1989 regulations gave to an unsuccessful applicant rights of appeal. Where the RACGP had declined to certify in relation to a medical practitioner under par 3F(6)(a) of the Act or an Eligibility Committee had declined to certify under sub-reg 5(1), the practitioner was able to appeal to the Vocational Registration Appeal Committee; if that Committee determined to allow the appeal, subreg 5(4) required that “it must certify in accordance with sub-reg 5(2)”. The language of sub-reg 5(2) is identical to that of sub-reg 5(1) which is set out above save that it referred to the Appeal Committee, not to the Eligibility Committee.
The next of the 1989 regulations to which reference needs be made at this stage is reg 7. It applied both to the Eligibility Committee and the Appeal Committee and provided relevantly as follows:-
“7.Before certifying in accordance with regulation 5 . . . a Committee must:
(a)have regard to the criteria published by the RACGP relating to eligibility for registration; and
(b) then proceed to consider the case on its merits.”
Sub-regulation 2(2) provided, inter alia, that a reference to the criteria published by the RACGP was a reference to the document that set out the criteria relating to eligibility for registration.
The 1989 regulations were substantially amended first, in December 1996 and then again in March 1997. The nature of those amendments are relevant in the determination of the issue that is presently before the Court. The 1996 regulations removed of the terms “Eligibility Committee” and “Appeal Committee” (as they appeared in the earlier 1989 regulations) and inserted new definitions. Thus, by way of example, in the 1989 regulations “Appeal Committee” meant “the Vocational Registration Appeal Committee established by regulation 10”. Under reg 10 it was provided that:
“There is to be a Vocational Registration Appeal Committee consisting of 5 members appointed in accordance with reg 11”.
Regulation 11 then set out the qualification of members and the method by which they were appointed by the Minister.
In considering whether the effect of the 1996 regulations is to do no more than change the names of certain statutory bodies, it is important to analyse the manner in which the 1989 regulations were amended. In the first place, regulation 10 of the 1989 regulations has been omitted and replaced with a new regulation in these terms:
“10.(1) A committee called the General Practice Recognition Appeal Committee is established.
(2)The Appeal Committee consists of 5 members appointed under regulation 11.
(3) . . .”
The use of the present tense “is established” suggests, prima facie, the establishment of a body that had no earlier existence. Furthermore, the term of “appeal committee” is now defined to mean “the General Practice Recognition Appeal Committee”.
The next amendment to consider is reg 11. That has also been omitted from the 1989 regulations and replaced with an entirely new regulation. Subregulation 11 (1A) of the 1996 regulation is, in my opinion, significant in that it states that:
“(1A)The members of the Vocational Registration Appeal Committee in office immediately before the commencement of this subregulation are taken to have been appointed to the Appeal Committee for the balance of their terms of office.”
The need to insert this provision favours an interpretation that, without it, the members of the Appeal Committee who were appointed under the 1989 regulations might otherwise be out of office. Expressed another way, the presence of subreg 11(1A) favours an interpretation that a new committee has been created by the 1996 regulations.
A third matter that supports the argument that a new statutory body has been created is the presence in the 1996 regulations of “transitional provisions”. For example, in subreg 4B(2) there is provision to the effect that if an appeal to the Appeal Committee had not been “finalised” before the commencement of the 1996 regulations it “is taken to be an appeal made to the General Practice Recognition Appeal Committee”. I do not consider that such a transitional provision would have been necessary if the General Practice Recognition Appeal Committee were the same statutory body as that previously known as the Vocational Registration Appeal Committee. The word “finalised” is to be given its ordinary meaning of “concluded or settled”. In the present case, the applicant had made his appeal to the Appeal Committee but it had rejected him. The matter was then “finalised”. His failure to take any further action for over two years is eloquent testimony to the finalisation of the matter. This conclusion is supported by the contents of the Explanatory Memorandum that accompanied amendments to the 1996 regulations:
“The amendments make it clear that no applicant is to be disadvantaged nor advantaged by the changed legislative requirements and that applications pending on 24 December 1996 or on appeal are to be determined by applying the legislative requirements which applied when the application was lodged. The legislative requirements which applied when the application was lodged will, therefore be applied on any appeal or reconsideration following Court review until the application is finally determined.”
Mr Tilmouth QC, senior counsel for the applicant, relied upon the provisions of reg 5 of the 1996 regulations. That regulation also uses the word “finalised”. It states:
“5.(1) This regulation applies to a medical practitioner:
(a)who applied for vocational registration before 1 January 1995; and
(b) whose application is finalised after 23 December 1996.
(2)The practitioner is eligible for registration if the RACGP or Eligibility Committee certifies that the practitioner meets the [criteria] that applied when the application was lodged.”
Mr Tilmouth pointed out that one effect of an order of review under s 16 of the ADJR Act can be to quash or set aside the decision that is under review and to order that the matter be referred back to the decision maker. He therefore submitted that an application cannot be considered “finalised” under reg 5 until such time as an appeal (if indeed an appeal is instituted) against the decision of the Committee has been heard and determined by an order of this Court. There are, in my opinion, two reasons why this submission must be rejected. In the first place, it offends the plain language of the regulations for they relate the appeal process to an appeal to the General Practice Recognition Appeal Committee. The regulations contain no provision for any further appeal. That right is to be found by way of an application for review under the ADJR Act. The second reason for giving a constrained interpretation to the meaning of the word “finalised” is that the extension into the appeal or review process would not, as a matter of logic, cease with the determination of a single judge. If Mr Tilmouth’s argument is correct, one would have to await the outcome of an appeal to the Full Court and an application for special leave to appeal to the High Court and, if granted, the appeal to that Court.
Another matter that favours the argument advanced on behalf of the new committee centres upon the language of par 3F(6)(b) of the Act. Subsection 3F(6) was repealed and re-enacted in 1996 by the Health Insurance Amendment Act (No 2) 1996 so that it now reads as follows:
“(6)After receiving an application, the Managing Director of the Commission must, within the required period under subsection (6A), enter the applicant's name in the Register if:
(a) the Royal Australian College of General Practitioners; or
(b) a body specified in the regulations;
gives the Managing Director written notice that the applicant is, in accordance with the regulations, eligible for registration under this section.”
Regulation 3A of the 1996 regulations states that “the Eligibility Committee” and “the Appeal Committee”, that is, the General Practice Recognition Eligibility Committee and the General Practice Recognition Appeal Committee, are bodies specified for the purposes of that subparagraph. Although not determinative, this provision is, in my opinion, in harmony with a conclusion that new statutory bodies have been created as a result of the changes in 1996 to the legislation.
Section 25B of the Acts Interpretation Act 1901 (Cth) provides that where an Act alters the name of a body then, unless a contrary intention appears, the body continues in existence under the new name “so that its identity is not affected”. I have come to the conclusion, however, that s 25B has no application in the present circumstances. The accumulation of the matters to which I have referred establishes the “contrary intention” to which the section refers.
There is, as a consequence of the decision that I have reached, a lacuna that should be noted so that it may be appreciated that it has not been overlooked. If an appeal under the 1989 regulations to the old committee was not finalised at the time of the introduction of the 1996 regulations it is quite clear that the appeal is to be concluded by the General Practice Recognition Appeal Committee; and if, subsequently, the new committee is found, on review, to have erred then the matter can be remitted by this Court to the new committee for reconsideration. But if the appeal to the old committee had been completed (ie “finalised”) before the introduction of the 1996 regulations, any right of review under the ADJR Act was effectively lost by the introduction of the new regulations. Notwithstanding the potential for hardship that this may have caused I remain convinced that the submissions that have been made on behalf of the new committee are correct.
I will adjourn these proceedings so that the respondent may bring in short minutes in terms consistent with these reasons. There will be liberty to the applicant to speak to the minutes. Either party may apply to relist the matter on seven days notice. I will hear the parties on costs and any other consequential matters on the resumed hearing.
I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin
Associate:
Dated: 22 December 1998
Counsel for the Applicant: Mr S Tilmouth QC
with him Mr R ArmourSolicitor for the Applicant: Armour & Allen Counsel for the Respondent: Ms S Maharaj
with her Ms J NunanSolicitor for the Respondent: Australian Government Solicitor Date of Hearing: 14 September 1998 Date of Judgment: 22 December 1998
10
0
0