Minister for Community Services and Health v Thoo, C.K
[1988] FCA 74
•09 MARCH 1988
Re: MINISTER FOR COMMUNITY SERVICES AND HEALTH and MEDICARE PARTICIPATION AND
REVIEW COMMITTEE
And: CHEE KEONG THOO
No. G514 of 1987
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Wilcox(1) and Burchett(2) JJ.
CATCHWORDS
Administrative Law - judicial review - Appeal from Administrative Appeals Tribunal - review of decision of Medicare Participation Review Committee - disqualification of practitioner from participation in the Medicare scheme - offences under s.129(1) of the Health Insurance Act - earlier (1976) convictions under s.103(8) of the National Health Act - whether AAT entitled as matter of law to have regard to 1976 convictions - definition of "relevant offence" under s.124B(1) of the Health Insurance Act.
Health Insurance Act 1973 (Cth) - ss. 124B, 124F and 124H
National Health Act 1953 (Cth) - s. 103(5)
Administrative Appeals Tribunal Act 1975 (Cth) - s.44.
HEARING
SYDNEY
#DATE 9:3:1988
Counsel for the applicant: Miss M. Beazley
Solicitor for the applicant: Australian Government Solicitor
Counsel for the respondent: Dr J. Griffiths
Solicitors for the respondent: Dawson Waldron
ORDER
The appeal be dismissed.
The first named applicant should pay the respondent's costs of the appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a decision of the Administrative Appeals Tribunal which reviewed a decision of a Medicare Participation Review Committee (an "M.P.R.C.") made under s.124F(2) of the Health Insurance Act 1973 (Cth) ("the Act"). The M.P.R.C. had made a determination that the respondent, Dr C.K. Thoo, be disqualified from participation in the Medicare scheme for a period of three months. The Administrative Appeals Tribunal, by its order, varied the disqualification limiting it to professional services involving acupuncture. Under s. 44 of the Administrative Appeals Tribunal Act 1975 (Cth), this appeal is limited to points of law.
The proceedings before the M.P.R.C. arose after Dr Thoo had been charged before a magistrate with 28 offences under s.129(1) of the Act, which offences had occurred in the early 1980's. With regard to 24 of the offences, the magistrate found them proved but dismissed them under s.19B of the Crimes Act. With regard to the remaining four offences, the magistrate, without proceeding to a conviction, ordered Dr Thoo to enter into a recognisance to be of good behaviour for three years, a course authorised by s.19B of the Crimes Act.
Some years earlier, in 1976, Dr Thoo had been convicted of two offences under s.103(5) of the National Health Act 1953 (Cth) and he had been fined. In its decision, the M.P.R.C. held that the 1976 convictions were relevant matters which it took into account to the detriment of Dr Thoo. The Administrative Appeals Tribunal, on the other hand, held that the 1976 convictions were not relevant to the matter before it and it declined to take them into account. The substantial issue in this appeal is whether the Administrative Appeals Tribunal was entitled, as a matter of law, to have regard to and to take into account Dr Thoo's 1976 convictions under s.103(5) of the National Health Act.
Relevant provisions of the Act read as follows:-
"Interpretation
124B. (1) In this Part, unless the contrary intention appears -
...
'relevant offence' means -
(a) an offence against section 128A, 128B, 129, 129AA or 129AAA of this Act, being an offence that is committed after the commencement of this Part;
(b) an offence against section 129, 129AA or 129AAA of this Act as in force before the commencement of this Part, being an offence of which a person has been convicted after the commencement of this Part; or
(c) an offence against -
(i) section 6, 7 or 7A of the Crimes Act 1914; or
(ii) sub-section 86(1) of that Act by virtue of paragraph (a) of that sub-section,
being an offence that -
(iii) relates to an offence referred to in paragraph (a) and is committed after the commencement of this Part; or
(iv) relates to an offence referred to in paragraph (b) and is an offence of which a person has been convicted after the commencement of this Part.
(2) A reference in this Part to a conviction of an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the offence.
Determinations
124F. (1) Subject to sub-sections 124J (8) and 124T (3), a Committee established in relation to a practitioner shall make a determination in relation to the practitioner in respect of the commission by the practitioner of any relevant offence that is the subject of a notice under section 124D and has not been the subject of a previous determination by a Committee.
(2) A Committee shall, in making a determination in relation to a practitioner, determine that -
(a) no action should be taken against the practitioner;
(b) it should counsel the practitioner;
(c) it should reprimand the practitioner;
(d) the practitioner is disqualified in respect of one or more of the following:
(i) the provision of specified professional services, or the provision of professional services other than specified professional services;
(ii) the provision of professional services to a specified class of persons, or the provision of professional services to persons other than persons included in a specified class of persons;
(iii) the provision of professional services within a specified location, or the provision of professional services otherwise than within a specified location; or
(e) the practitioner is fully disqualified.
(3) In making a determination in relation to a practitioner, a Committee shall -
(a) without limiting the generality of the matters to which it may have regard in making the determination, have regard to the nature of, and the circumstances concerning the commission of -
(i) each relevant offence of which the practitioner has been convicted; and
(ii) each offence of which the practitioner has been convicted before the commencement of this Part, being an offence that would have been a relevant offence if the conviction had occurred after that commencement; and
(b) comply with Guidelines in force under section 124H.
(4) A determination shall be made in writing.
(5) Where a Committee determines under paragraph (2)(d) or (e) that a practitioner is disqualified, the Committee shall specify in the determination the period over which the disqualification is to have effect, being a period that ends -
(a) where the determination is a review of a period of disqualification referred to in sub-section 124D(3) - on or before the day on which that period of disqualification is to come to an end; or
(b) in any other case - within 5 years after the day on which the determination comes into effect."
.....
Guidelines relating to making of determinations 124H. (1) The Minister may, by instrument in writing, make guidelines to be applied by Committees with respect the making of determinations under sub-sections 124F(2) and 124G(2).
(2) Without limiting the generality of the matters to which guidelines made under sub-section (1) may relate, guidelines may specify circumstances in which determinations of specified kinds under sub-section 124F(2) and determinations under sub-section 124G(2) may be made.
(3) Sections 48, 49 and 50 of the Acts Interpretation Act 1901 apply to guidelines made under sub-section
(1) as if in those provisions references to regulations were references to guidelines, references to a regulation were references to a provision of a guideline and references to repeal were references to revocation.'"
Section 124F requires an M.P.R.C., in its deliberations, to have regard not only to the relevant offence that has been notified to it but also to all other relevant offences and offences that would have been relevant offences if they had occurred after the commencement of the new provisions in Part VB of the Act.
It will be noted that s.124B(1) defines "a relevant offence". An offence under s.103(5) of the National Health Act was not a relevant offence as defined. Miss M. Beazley, of counsel, who appeared for the applicants in this appeal, submitted that the adjective "relevant" was a purely neutral term indicating no more than an adjective such as "prescribed". However, it is unlikely that that was Parliament's intention. The term "relevant" has a very clear meaning and effect in law. It distinguishes between those matters that ought to be taken into account and those matters that ought not to be considered. See e.g., s.5(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which identifies as grounds of judicial review the "taking an irrelevant consideration into account in the exercise of a power" and the "failing to take a relevant consideration into account in the exercise of a power". The National Health Act uses the adjective "relevant" on several occasions. See e.g. the definitions of "relevant journey" and "relevant professional service" in s.12(1) of that Act. Miss Beazley did not point out to the Court any definition contained in that Act in which the adjective "relevant" was used and which did not cover and limit the field of consideration.
The Guidelines issued by the Minister under s.124H of the Act follow a like pattern. Those Guidelines provide, inter alia:-
"PART I - PRELIMINARY
Interpretation
1. In these Guidelines;
"the Act" means the Health Insurance Act 1973;
"the amending Act" means the Health Legislation Amendment Act (No.2) 1985;
"Committee" means a Medicare Participation Review Committee established under section 124E of the Act in response to a notice under section 124D of the Act;
"relevant offence" has the same meaning as it has in sub-section 124B(1) of the Act;
"found guilty" means a circumstance referred to in section 124B(2) of the Act where a relevant offence is found proven by a Court without proceeding to conviction and the Court makes an order under section 19B of the Crimes Act 1914 in relation to the offence;
"an offence that would have been a relevant offence if the conviction had occurred after the commencement of section 34 of the amending Act" means any offence excluded from the definition of "relevant offence" in section 124B(1) of the Act by the references in paragraphs (b) and (c)(iv) of the definition to conviction after the commencement of Part VB of the Act (the date of commencement being 22 February 1986), and which would otherwise have come within the scope of that definition.
...
Exercise of powers under the Act
3. (1) Nothing in these Guidelines shall be read as limiting the powers conferred by the Act on a Committee.
(2) Nothing in these Guidelines shall be read as limiting the capacity of a Committee to take into account, in making a determination, matters the Committee considers relevant to the making of the determination, being matters not dealt with in these Guidelines.
...
5. The Committee shall bear in mind that its consideration under these Guidelines of any relevant offence dealt with by a Court shall not extend to a review of the decision of the Court in relation to that offence.
PART II - MATTERS RELEVANT TO DETERMINATIONS UNDER SUB-SECTION 124F(2)
Previous Convictions and Previous Determinations
6. In making a determination under sub-section 124F(2) of the Act in relation to a conviction of a relevant offence or relevant offences the subject of a notice under section 124D of the Act a Committee shall have regard to the following matters:
(a) the nature, and circumstances concerning the commission, of such relevant offence or offences, including:
i) the number of such relevant offences;
ii) the date of commission of each such relevant offence;
iii) the seriousness of each such relevant offence;
iv) the penalty, if any, imposed by the Court upon the practitioner in respect of each such relevant offence;
v) the reasons for decision and any other statements made by the Court in relation to its consideration of each such relevant offence;
(b) any offence of which the practitioner has been convicted before the commencement of section 34 of the amending Act that would have been a relevant offence if the conviction had occurred after that commencement;
(c) whether a period of disqualification pursuant to sub-section 19B(7) of the Act as in force before the commencement of section 34 of the amending Act was in force in relation to any such conviction;
(d) whether a determination in relation to such a period of disqualification was made by the Minister pursuant to sub-sections 19B(8) or
(9) of the Act as in force before the commencement of section 34 of the amending Act, or by a Committee pursuant to sub-section 124F(2) of the Act, and where such a determination was made;
i) the nature of the determination;
ii) the reasons for the making of that determination;
iii) the effect of that determination;
iv) the conditions, if any, specified in the determination; and
v) where applicable, the statements in writing pursuant to sub-section 19B(13) and (14) of the Act as in force before the commencement of section 34 of the amending Act provided by the Minister to the practitioner in the respect of that determination;
(e) any previous conviction of the practitioner for a relevant offence (whether or not the offence has been the subject of a notice under section 124D of the Act or of a determination by a Committee);
(f) the nature, and circumstances concerning the commission of a relevant offence being a relevant offence referred to in (e), including:
i) the number of such relevant offences;
ii) the date of commission of each such relevant offence;
iii) the seriousness of each such relevant offence;
iv) the penalty, if any, imposed by the court upon the practitioner in respect of each such relevant offence;
v) the reasons for decision and any other statements made by the court in relation to its consideration of each such relevant offence;
(g) any previous determination made by a Committee pursuant to sub-sections 124F(2) or 124G(2) of the Act in relation to such relevant offence and the reasons given in a notice under sub-section 124Q(1) for the making of that
(h) where any such determination pursuant to sub-section 124F(2) imposed a period of disqualification upon the practitioner, the scope, and the length and date of termination, of such period of disqualification.
Other Relevant Considerations
7. In making a determination under sub-section 124F(2) of the Act in relation to a practitioner, a Committee shall have regard to the following matters -
(a) the length of time the practitioner has been in active professional practice as a practitioner;
(b) the effect that any particular determination that Committee may make would have in relation to the practitioner;
(c) the effect that any particular determination that the Committee may make would have in relation to the practitioner's patients and/or the community in which the practitioner practices, in respect of the provision and quality of medical services; and
(d) any other matters which the Committee considers relevant.
Making of determination under sub-section 124F(2)
8. For the purposes of sub-section 124F(2) of the Act, where a Committee established in relation to a practitioner is of the opinion that some action should be taken in respect of the practitioner, in deciding what action should be taken the Committee shall, unless it considers that special circumstances exist, have regard to the following presumptions -
(a) where the practitioner has been found guilty of a relevant offence, that a period of disqualification would not be appropriate.
(b) where the practitioner:
i) has been convicted by a court of summary jurisdiction of a relevant offence; and
ii) has not on a previous occasion been convicted or found guilty of a relevant offence,
that a period of disqualification would not be appropriate.
(c) where the practitioner:
i) has been convicted by a court of summary jurisdiction of a relevant offence;
ii) has on a previous occasion been convicted or found guilty of a relevant offence or of an offence that would have been a relevant offence if the conviction had occurred after the commencement of section 34 of the amending Act; and
iii) has not previously been disqualified by a Committee or pursuant to section 19B of the Act as in force before the commencement of section 34 of the amending Act,
that disqualification for a period of not less than 3 months and not more than one year would be appropriate."
It will be noted, as a matter of interest, that these Guidelines do not adopt the extended view of "conviction" adopted in s.124B(2) of the Act but distinguish between a conviction, on the one hand, and a finding of guilty which has given rise to an order authorised by s.19B of the Crimes Act, on the other.
Notwithstanding the reference in Clause 3(2) of the Guidelines to "matters the Committee considers relevant to the making of the determination being matters not dealt with in these Guidelines" and to the reference in Clause 7 to "any other matters which the Committee considers relevant", the Guidelines, in our opinion, make it clear what offences are to be taken into account and what effect is to be given to them. The Guidelines adopt the definition in the Act of "a relevant offence". Under Part II, which deals with "Matters relevant to determinations under sub-section 124F(2)" and under the sub-heading "Previous Convictions and Previous Determinations", the Guidelines require the M.P.R.C. to take into account, in respect of a conviction of a relevant offence the subject of a proceeding before the M.P.R.C., the nature and circumstances of the offence including the number of such relevant offences, the date and commission thereof, the seriousness thereof, the penalty imposed by the court in respect thereof and the reasons for decision and other statements made by the court in relation thereto. Clause 6 also requires the M.P.R.C. to take into account any previous relevant offence of the practitioner and any offence that would have been a relevant offence if the conviction had occurred after the commencement of the new provisions in the Act. Clause 5 specifically provides that a consideration by the M.P.R.C. of a relevant offence shall not extend to a review of the decision by the court in relation to that offence. Finally, Clause 8 provides for a graduated scale of determination taking into account relevant offences, offences that would have been relevant offences if they had occurred after the commencement of the new provisions and the number and seriousness thereof.
In our opinion, it would be inconsistent with the intent and object of these provisions for an M.P.R.C., and on review the Administrative Appeals Tribunal, to take into account as relevant an offence of which the subject practitioner has been convicted or found guilty but which is not a relevant offence as defined or an offence that would have been a relevant offence as defined if it had occurred after the commencement of the new provisions.
An M.P.R.C. is not a court of law which, in imposing a penalty for an offence, may take into account any prior convictions which appear to it to have a relevance. An M.P.R.C. has a statutory function, that specified in s.124F(1), namely to "make a determination in relation to the practitioner in respect of the commission by the practitioner of any relevant offence that is the subject of the notice under s.124D ... ". If these words stood on their own, the M.P.R.C. would be restricted to making a determination in relation to the particular relevant offence or offences before it and it would not be concerned with other offences, whether relevant offences as defined or not. The ambit of matters falling for consideration in respect of that determination is extended by the provisions of s.124F(3) which requires the M.P.R.C. to take into account each other relevant offence of which the practitioner has been found guilty or has been convicted and each other like offence that would have been a relevant offence if the finding or conviction had occurred after the commencement of the new provisions. The ambit of the M.P.R.C.'s consideration is thus established by the provisions of s.124F(1) and (3). Offences which are not relevant offences or which would not, if they had occurred at a later point of time, have been relevant offences are not within that ambit. The Guidelines correctly recognise this point and likewise limit the consideration of the M.P.R.C. to relevant offences and to offences that would have been relevant if they had occurred after the commencement of the new provisions.
In the present case, the M.P.R.C. held that the prior convictions in 1976 were "special circumstances" within the meaning of that term in Clause 8 of the Guidelines, thereby entitling the M.P.R.C. not to give effect to the presumptions specified in Clause 8. Yet, a circumstance may not be a special circumstance within Clause 8 unless it is a circumstance which is a relevant circumstance, having regard to other provisions of the Guidelines, particularly Clauses 3, 6 and 7 thereof. The Administrative Appeals Tribunal posed the question whether as a matter of law, the earlier convictions were not a relevant and therefore not a special circumstance. The Administrative Appeals Tribunal later stated:-
"We have come to the conclusion that it was not open to the M.P.R.C. to take into account convictions some 7 to 8 years prior to the occurrences forming the basis of the charges leading to the current proceedings pursuant to clause 3 of the Guidelines or as special circumstances, which we consider to be circumstances relating to 'relevant offences' as defined in the Act and Guidelines."
It is not entirely clear whether the Tribunal was expressing the view that, as a matter of fact, not of law, the 1976 convictions were not relevant to the matters which the Tribunal had to consider.
However, as the matter has been argued, we express our view that, as a matter of law, the 1976 convictions were not within the ambit of the matters that it was relevant to the Administrative Appeals Tribunal to take into account.
That is not to say that prior criminal behaviour may not, in a particular case, be admissible in evidence and properly taken into account as bearing upon the nature and circumstances of a relevant offence, though the effect of Clause 5 of the Guidelines, which provides that an M.P.R.C. may not review the decision of the Court in relation to a relevant offence, and of Clause 6(a)(v), which requires an M.P.R.C. take into account the reasons for decision and other statements made by the Court in relation to its consideration of the relevant offence, must be kept in mind. Those considerations do not arise in the present case as the Administrative Appeals Tribunal took the view that the 1976 convictions were unrelated to and threw no light upon the relevant offences, with which the Tribunal was concerned.
In our opinion, the Administrative Appeals Tribunal was correct in excluding from its consideration Dr Thoo's 1976 convictions, which were convictions for offences which were not and would not, if they had occurred at a later point in time, have been relevant offences.
The appeal should therefore be dismissed and the first named applicant should pay the respondent's costs of the appeal.
JUDGE2
Chee Keong Thoo (who is commonly called Dr. Thoo and may therefore be referred to by that name) is a medical practitioner carrying on practice in Nowra on the south coast of New South Wales. From there he provides medical attention to patients at Currarong, a village some 40 kilometres away. After a period as Medical Registrar at Royal Newcastle Hospital in 1973 and 1974, Dr. Thoo has been in general practice in Australia on his own account for some 11 years. He has been described as a caring medical practitioner and is well thought of locally. During a period in the years 1980-81 his professional activities were interrupted by the necessity to undergo a craniotomy and radiation therapy for a brain cancer.
Shortly after the doctor's return to practice, he treated two patients, Mr. and Mrs. Richardson, using acupuncture. Whilst he had been away undergoing treatment for his own condition, a new item in respect of treatment by acupuncture had been added to the schedule of chargeable items for medical benefit purposes. It has been found as a fact that Dr. Thoo was not until well after the events in question aware of that item, and that it was not his fault that he was not so aware. Dr. Thoo claimed for the acupuncture treatment under another item, which was not properly applicable since it related to patients in a critical condition and Mr. and Mrs. Richardson were being treated for a condition which was not critical. Dr. Thoo's evidence, expressly accepted by one member of the Administrative Appeals Tribunal, is that he was either not aware or had forgotten by reason of his own operation and illness that the item claimed required the patient to be in a critical condition. (It was accepted by the Medicare Participation Review Committee, on appeal from which the matter came before the Administrative Appeals Tribunal, and is not questioned in either the majority or minority reasons given in the Administrative Appeals Tribunal, that Dr. Thoo "suffers some memory loss as a result of the radiotherapy which he received.") However, the majority of the Administrative Appeals Tribunal make no finding, one way or the other, concerning this explanation. They are content to note that Dr. Thoo pleaded guilty to the charges in question.
Dr. Thoo was also found guilty of further charges relating to claims for treatment given to a Mr. Fitzpatrick and a Mrs. Moate, who were treated between March and June 1983. In respect of these charges, there was a dispute whether the treatment was really acupuncture, as alleged by the prosecution, or other treatment which would have justified the claims, but the magistrate found the offences proved.
Exercising powers under s.19B of the Crimes Act 1914, the magistrate dismissed a number of the charges, and in respect of others ordered Dr. Thoo to be discharged upon his entering into a recognizance. He did not record any conviction. The magistrate endorsed on the summons a recommendation that Dr. Thoo be allowed to remain in practice, and his comments reflect a concern, which counsel for the Director of Public Prosecutions endorsed, that the residents of Currarong should not lose the care provided by Dr. Thoo.
It is not suggested in the reasons of the majority of the Tribunal that Dr. Thoo's offences formed part of any pattern of overcharging, either in respect of the special area of acupuncture or generally, and the minority reasons make it clear that there was no evidence of any systematic course of deceit. A "very large number" of letters from residents of Currarong was tendered in support of Dr. Thoo, many of which referred to his readiness to make calls at a distance at night to visit the sick. Some 450 out of the 500 residents of the village were listed as patients of Dr. Thoo's practice. A departmental memorandum concerning the offences in 1981 and 1983 referred to the magistrate as having taken into account "the excellent reputation that Dr. Thoo had established within his local community". Dr. Thoo himself, in his submissions to the Committee, referred to the Chinese saying:
"You cannot pour perfume on others without getting a few drops on yourself".
Dr. Thoo also referred to a report of the Medicare Benefits Review Committee chaired by Deputy President Layton (of the Administrative Appeals Tribunal) which recommended the abolition of item 980, the item under which the magistrate held Dr. Thoo should have charged. The report includes the comment:
"To restrict the payment of benefits for both acupuncture and a consultation to a level below that which may be payable for a consultation alone is, in the Committee's view, absurd." (Item 980 has this effect.)
This recommendation, made in 1985 in the first report of the Medicare Benefits Review Committee, has not been adopted, and the Medicare Participation Review Committee emphasized that Dr. Thoo was not entitled to misdescribe a service performed on that account.
The orders of the magistrate were made on 16 December 1986. On 10 April 1987 Dr. Thoo appeared before a Medicare Participation Review Committee, set up under the provisions of Part VB of the Health Insurance Act 1973.
Evidence was placed before the Committee that Dr. Thoo commenced general practice in 1975 at Sussex Inlet, a small town south of Nowra. There being no pharmacy in the town, approval was given to his dispensing his own medicines. In the first months of his practice, between February and March 1975, he wrote prescriptions for non-existent patients in order to build up a stock of drugs to dispense. As a result, Dr. Thoo was convicted in December 1976 of two offences against s.103(5)(a) of the National Health Act 1953, and fined $400. It was accepted that these offences were not "relevant offences" within the definition in s.124B(1) of the Health Insurance Act, to which reference will be made, nor would they have been relevant offences if the convictions had occurred after the commencement on 22 February 1986 of Part VB.
The Committee was unable to come to any positive conclusion concerning the 1983 offences, to which Dr. Thoo had pleaded not guilty, but which had been dealt with under s.19B of the Crimes Act, and it therefore did not take them into account. Since the Committee was required by clause 5 of the Guidelines, which will be set out, to refrain from reviewing the decision of the magistrate, it may perhaps be accepted that it meant it did not take the circumstances of the offences into account. It considered the 1981 matters, and the two convictions under the National Health Act in respect of the 1975 offences. It took into account the circumstances of the doctor's practice and the trauma he had endured by reason of his severe illness till shortly before the 1981 offences. It determined that Dr. Thoo be disqualified from participation in the "Medicare" scheme for a period of three months from 1st July 1987.
Dr. Thoo sought review by the Administrative Appeals Tribunal of the decision of the Committee. The Tribunal by majority (Deputy President Bannon and Dr. Howell, Member) substituted a disqualification for three months limited to professional services involving acupuncture, thus permitting Dr. Thoo to claim for all services performed by him other than acupuncture. The third member of the Tribunal (Mr. McMahon, senior member), in dissent, would have imposed no disqualification at all, and would have substituted a reprimand.
Following the decision of the Administrative Appeals Tribunal, the Minister for Community Services and Health and the Medicare Participation Review Committee have lodged an appeal, so called, to this Court. That appeal, of course, is limited to questions of law, and is in the original jurisdiction of the Court. The Minister and the Committee are in fact applicants, though misdescribed in the Notice of Appeal as appellants. What is sought is the restoration of the decision of the Medicare Participation Review Committee, although it is not clear to me why the Committee, assuming it has capacity to be a party in its own name, should be an applicant in this Court for relief of that kind. (Cf. The Queen v. The Australian Broadcasting Tribunal, Ex parte Hardiman (1980) 144 CLR 13 at 17, 35-6.)
The determinations of the Committee and the Tribunal were made pursuant to s.124F of the Health Insurance Act 1973 (the Act), as amended by the Health Legislation Amendment Act (No. 2) 1985 (No. 167 of 1985) providing, by Part VB, for the setting up of Medicare Participation Review Committees to make determinations in respect of medical practitioners in relation to certain offences. In order to understand the points raised upon the appeal, it is necessary to set out some of the provisions of Part VB. These provisions are concerned with offences described by the expression "relevant offence" as defined in s.124B of the Act.
In sub-s. (2) of section 124B it is provided that:
"A reference in this Part to a conviction of an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the offence."
Section 124F provides as follows:
"(1) Subject to sub-sections 124J(8) and 124T(3), a Committee established in relation to a practitioner shall make a determination in relation to the practitioner in respect of the commission by the practitioner of any relevant offence that is the subject of a notice under section 124D and has not been the subject of a previous determination by a Committee.
(2) A Committee shall, in making a determination in relation to a practitioner, determine that -
(a) no action should be taken against the practitioner;
(b) it should counsel the practitioner;
(c) it should reprimand the practitioner;
(d) the practitioner is disqualified in respect of one or more of the following:
(i) the provision of specified professional services, or the provision of professional services other than specified professional services;
(ii) the provision of professional services to a specified class of persons, or the provision of professional services to persons other than persons included in a specified class of persons;
(iii) the provision of professional services within a specified location, or the provision of professional services otherwise than within a specified location; or
(e) the practitioner is fully disqualified.
(3) In making a determination in relation to a practitioner, a Committee shall -
(a) without limiting the generality of the matters to which it may have regard in making the determination, have regard to the nature of, and the circumstances concerning the commission of -
(i) each relevant offence of which the practitioner has been convicted; and
(ii) each offence of which the practitioner has been convicted before the commencement of this Part, being an offence that would have been a relevant offence if the conviction had occurred after that commencement; and
(b) comply with guidelines in force under section 124H.
(4) A determination shall be made in writing.
(5) Where a Committee determines under paragraph (2)(d) or (e) that a practitioner is disqualified, the Committee shall specify in the determination the period over which the disqualification is to have effect, being a period that ends -
(a) where the determination is a review of a period of disqualification referred to in sub-section 124D(3) - on or before the day on which that period of disqualification is to come to an end; or
(b) in any other case - within 5 years after the day on which the determination comes into effect."
Section 124H provides for the making by the Minister of guidelines to be applied by committees. Sub-s.(2) of that section provides:
"Without limiting the generality of the matters to which guidelines made under sub-section (1) may relate, guidelines may specify circumstances in which determinations of specified kinds under sub-section 124F(2) ... may be made."
Pursuant to section 124H, guidelines were made on 30 September 1986. In clause 1 of those guidelines it is expressly provided that the expression "relevant offence" in the guidelines "has the same meaning as it has in sub-section 124B(1) of the Act." But, curiously, a situation of the kind referred to in s.124F(3)(a)(ii) is the subject of a separate, and differently worded, definition. The significance of this was not explained at the hearing of the appeal, and is not obvious. There is no definition in the guidelines of the word "convicted", but there is a definition of the expression "found guilty". That expression "means a circumstance referred to in s.124B(2) of the Act where a relevant offence is found proven by a Court without proceeding to conviction and the Court makes an order under s.19B of the Crimes Act 1914 in relation to the offence." In clause 2 it is provided that "a Committee is required to have regard to the matters and comply with the directions set out in Parts II and III of these Guidelines." But by clause 3 it is provided as follows:
"(1) Nothing in these Guidelines shall be read as limiting the powers conferred by the Act on a Committee.
(2) Nothing in these Guidelines shall be read as limiting the capacity of a Committee to take into account, in making a determination, matters the Committee considers relevant to the making of the determination, being matters not dealt with in these Guidelines."
If the Committee has power to take a relevant matter into account, it must be possible for that matter to be decisive, despite some contrary indications in other guidelines; for merely to note a matter, without allowing that it may affect the result, is not to take it into account.
In clause 5 it is provided:
"The Committee shall bear in mind that its consideration under these Guidelines of any relevant offence dealt with by a Court shall not extend to a review of the decision of the Court in relation to that offence."
This clause is expressed to apply only to a "relevant offence", but when it applies it forbids any questioning of the conviction, finding of guilt or order of the court. No question was raised concerning the relationship between the guideline and the obligation stated in s.124F(3) of the Act:
"a Committee shall ... have regard to the nature of, and the circumstances concerning, the commission of 'each relevant offence the subject of a conviction.'"
Part II consists of clauses 6, 7 and 8, which specify a number of matters to which a committee "shall have regard". These include the nature, circumstances, number, date of commission and seriousness of relevant offences, and other matters such as the penalty imposed by a court and statements made by the court. Although clause 6 is headed "Previous Convictions and Previous Determinations", the only offences referred to in it or in the Guidelines are relevant offences and offences which would be relevant offences if the conviction had occurred after an indicated date. Whether such a heading, in an Act, can assist construction of the Act is discussed in Pearce on Statutory Interpretation in Australia, 2d ed, paras. 73-74. Unless a contrary intention appears, the guidelines must be construed in accordance with the Acts Interpretation Act 1901 as if they were an Act; Acts Interpretation Act, s.46, the relevant part of which is quoted later in these reasons. But the function of the Guidelines, and their structure, suggest the heading may be of assistance, and may be sufficient to show an intention contrary to the rule, if its application would deny that assistance. Indeed, this heading may perhaps be properly regarded as a heading of a subdivision: see s.13(1) of the Acts Interpretation Act, 1901.
Clauses 7 and 8(a)(b) and (c) should be set out in full as follows:
"7. In making a determination under sub-section 124F(2) of the Act in relation to a practitioner, a Committee shall have regard to the following matters -
(a) the length of time the practitioner has been in active professional practice as a practitioner;
(b) the effect that any particular determination that Committee may make would have in relation to the practitioner;
(c) the effect that any particular determination that the Committee may make would have in relation to the practitioner's patients and/or the community in which the practitioner practises, in respect of the provision and quality of medical services; and
(d) any other matters which the Committee considers relevant.
8. For the purposes of sub-section 124F(2) of the Act, where a Committee established in relation to a practitioner is of the opinion that some action should be taken in respect of the practitioner, in deciding what action should be taken the Committee shall, unless it considers that special circumstances exist, have regard to the following presumptions -
(a) where the practitioner has been found guilty of a relevant offence, that a period of disqualification would not be appropriate.
(b) where the practitioner:
i) has been convicted by a court of summary jurisdiction of a relevant offence; and
ii) has not on a previous occasion been convicted or found guilty of a relevant offence,
that a period of disqualification would not be appropriate.
(c) where the practitioner:
i) has been convicted by a court of summary jurisdiction of a relevant offence;
ii) has on a previous occasion been convicted or found guilty of a relevant offence or of an offence that would have been a relevant offence if the conviction had occurred after the commencement of section 34 of the amending Act; and
iii) has not previously been disqualified by a Committee or pursuant to section 19B of the Act as in force before the commencement of section 34 of the amending Act,
that disqualification for a period of not less than 3 months and not more than one year would be appropriate."
It is accepted, as has been said, that the two offences of which Dr. Thoo was convicted in 1976 were neither "relevant offences", nor would have been relevant offences if the convictions had occurred after the commencement of Part VB. However, the Committee considered that they "constitute special circumstances permitting us to depart from the letter of (the guidelines)." But for the Committee's view that there were special circumstances, it would have held that "the appropriate sub-paragraph of clause 8 of our guidelines is (a)." By reason of the special circumstances, the Committee took the view that sub-paragraph (c) was "more apposite".
The majority of the Tribunal rejected the Committee's approach. They said:
"We have come to the conclusion that it was not open to the M.P.R.C. to take into account convictions some 7 to 8 years prior to the occurrences forming the basis of the charges leading to the current proceedings pursuant to clause 3 of the Guidelines or as special circumstances, which we consider to be circumstances relating to 'relevant offences' as defined in the Act and Guidelines."
The question raised upon the appeal is whether the majority of the Tribunal erred in law in so concluding.
It may be doubted whether the majority intended to lay down a proposition of law, or simply to deny that in fact the particular convictions, which they regarded as stale, were open to be treated as special circumstances, or if taken into account under cl.3 could have the effect asserted by the Committee. (Cf. Minister for Immigration and Ethnic Affairs v. Pochi (1980) 31 ALR 666 at 683-4, per Deane J.) However, I shall consider the appeal on the basis that a proposition of law is involved.
A broad discretion is conferred by s.124F(1) and (2) of the Act itself, which s.124F(3) is careful to preserve by the words "the generality of the matters to which (the committee) may have regard in making the determination". Bearing in mind the express disavowal in the guidelines of any attempt to limit the powers conferred by the Act (see clause 3), it is clear that whether or not the previous convictions constitute "special circumstances" within clause 8, the committee had power to make the decision which it in fact made. It is equally clear that the same powers are of ample width to justify the decision made by the majority of the Administrative Appeals Tribunal, or that which the dissentient would have made. Section 124F(2) makes that plain, and s.124G and Part III of the guidelines also demonstrate that a discretion exists, even in the case where a practitioner "has previously been convicted or found guilty of a relevant offence", to take no action at all. Whether that would be appropriate would, of course, be another matter, and would depend upon the circumstances.
Not only did the committee have a wide discretion, but even if it was correct in its view that the two convictions in the first months of Dr. Thoo's practice in early 1975 constituted "special circumstances" attracting the "presumption" in clause 8(c), that presumption, upon its own terms and in the light of the provisions of s.124F(2), would not determine the appropriate decision. All that paragraph (c) presumes is that "disqualification" for a period between three months and one year would be appropriate. Thus it presumes the duration of the disqualification, but not its nature. Section 124F(2) provides for different kinds of disqualification, the first of which is a disqualification from "the provision of specified professional services", that is, a disqualification of the type in fact imposed by the majority decision of the Administrative Appeals Tribunal in the present case, while the last is a disqualification by which "the practitioner is fully disqualified", a decision of the type made by the committee.
It follows that, assuming the true construction of clause 8 of the guidelines supported the committee's approach, there remained a discretion as to the nature of the disqualification to be applied if effect were to be given to the presumption. There remained also a discretion whether to give effect to the presumption at all. Clause 8 only requires that regard be had to the presumption; it does not contain any direction other than to have regard to it. In the context of the guidelines as a whole and clause 3 in particular, a broad discretion stands unimpaired. When one considers the great variation in culpability, and in the likelihood that particular matters will or may affect the reliability of a particular medical practioner's participation in the "Medicare" scheme, the breadth of this discretion is easily understood. Rigidly mechanical rules would inevitably produce injustices and, in the area of the provision of medical services, sometimes detriment to the community in the unnecessary loss of those services.
Accordingly, the question arises whether the point of law raised by the appeal is not a sterile one. If the two convictions in respect of offences committed in 1975 are capable in law of being regarded as "special circumstances" within clause 8, the questions will remain whether they should in fact have been found to be special circumstances, and what final decision is appropriate. The reasons given by both the majority and the minority in the Administrative Appeals Tribunal challenge a conclusion that the solution of the legal point would make any ultimate difference.
The Administrative Appeals Tribunal drew attention to the distinction, apparently made by paragraphs (a), (b) and (c) of clause 8, between the case where a practitioner has been "found guilty of a relevant offence" (see paragraph (a) and sub-paragraphs (ii) of paragraphs (b) and (c)), and a case where the practitioner has been "convicted". If that distinction is to be observed in construing clause 8, then although in the Act reference to a conviction includes a reference to an order under s.19B of the Crimes Act 1914 (by virtue of s.124B(2)), for the purposes of clause 8 Dr. Thoo was not "convicted" by the magistrate on 16 December 1986 - he was found guilty and orders were made under s.19B. He was convicted in 1976 of the two offences previously referred to, but they were not "relevant offences" within the definition contained in s.124B(1) of the Act.
By s.46 of the Acts Interpretation Act 1901 it is provided:
"Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then -
(a) unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act; ... ."
It seems to me that when the Minister made the guidelines he made an "instrument" within s.46, and he did so under a power conferred by the Act. The question is whether the word "convicted" used in clause 8, and particularly clause 8(c), is an expression which has a meaning in the Act by virtue of s.124B(2) and, if so, whether a contrary intention appears in clause 8. The Tribunal thought the clear distinction contained in that clause between the use of the word "convicted" and the use of the expression "found guilty" evinces a contrary intention. The contrast between paragraph (a) and paragraph (b) certainly supports the Tribunal's view. Furthermore, there are readily appreciable policy reasons for allowing paragraph (a) to prevail in cases where the court which heard the prosecution has chosen, after making a finding of guilt, not to record a conviction. And it is not the case that against those considerations can be placed a consistent usage, in the guidelines, of expressions defined in the Act in accordance with the meanings the Act gives those expressions. On the contrary, as has been mentioned, an expression used in the Act is defined differently in the guidelines, while in the case of another, which is used in the same sense, the draftsman has been careful to say so.
On that basis, the question remains whether, as a matter of law, the committee, or the Tribunal on appeal to it, can consider a special circumstance to exist by reason of a conviction, many years earlier at the outset of the medical practitioner's practice on his own account, of an offence which is not a "relevant offence", nor an offence described in s.124F(3)(a)(ii), but was an offence against the National Health Act involving the making of a false statement in a prescription in order to obtain a benefit. It was not argued that "special circumstances" under clause 8 are not available, on top of the Committee's broad discretion, to raise a presumption that a disqualification or a more severe disqualification is appropriate. The legislative history shows that, in this area, the concept of special circumstances was originally introduced to allow mitigation of fixed penalties, not to provide for harsher ones. (See s.19B(18) of the Health Insurance Act 1973, inserted by Act No. 49 of 1982, a section which was repealed by Act No. 167 of 1985.) Examination of the numerous instances of the use of the expression "special circumstances", in acts and regulations, contained in the fourth edition of Stroud's Judicial Dictionary suggests that, though occasionally used in a neutral sense (e.g. to express grounds for a change of venue), it is almost invariably used to express grounds of excuse, leniency, allowance or relaxation of some requirement. Any use of the words "special circumstances" to describe a basis for increasing something in the nature of a penalty, if not unknown (I have not found such an instance, though the words were used in imposing an obligation in the section considered in Harris v. Rugby Portland Cement Co. Ltd. (1955) 1 WLR 648), must at least be rare. Use of the same adjective, "special", to qualify circumstances so different, as those mitigating and those aggravating, involves an awkwardness which readily explains why draftsmen have generally chosen the expression as suitable for one type of case only. It is usual for courts to give meaning to the word "special" from the context, and to identify circumstances of a kind appropriate to give rise to the excuse or relaxation in question. A word so apt to be coloured by its context cannot easily be used, Janus-like, to look both ways.
If the use of the expression is ambiguous, a question may arise whether a practitioner should be imperilled by an ambiguity. However, it is unnecessary in this case to decide the matter, and it may be that the guideline simply exemplifies an unusual use of language. I think the point should be regarded as an open one.
In clause 8, each of the expressions "special circumstances", "have regard to", and "presumptions" seems to have been chosen to emphasize that the clause sketches only the most general outline, for the guidance of the committee or tribunal in the ordinary case. That guidance is given subject to the exercise of a discretion having regard also to all the other matters to which the committee or tribunal is required to have regard, or which it considers relevant to the making of its determination.
Bearing in mind the care shown by the draftsman of clause 8 to avoid laying down any binding rules, it is particularly important that the broad discretions, created to give a lively flexibility to the administration of the scheme, should not by the gradual deposition of judicial decisions become fossilized into rigidity. Those discretions are intended to be applied to a great variety of situations. In such a context, the core of the idea of "special circumstances" is that there is something unusual or different to take the matter out of the ordinary course, according to which the presumptions set out in the clause would be expected to apply. As a result, the ordinary course appears less appropriate or fair. Cf. Crabtree v. Hinchcliffe (Inspector of Taxes) (1972) AC 707 at 731 per Lord Reid; Jess v. Scott (1986) 12 FCR 187 at 195; Regina v. Secretary of State for the Home Department, Ex parte Mehta (1975) 1 WLR 1087; Re: X and the Adoption of Children Ordinance 1965 (1984) 2 FCR 533; Cortez Investments Ltd. v. Olphert & Collins (1984) 2 NZLR 434 at 437, 439, 441. In the reasons of the majority of the Administrative Appeals Tribunal, reference is made to Beadle v. Director-General of Social Security (1985) 60 ALR 225 at 228-9, where the joint judgment of Bowen C.J., Fisher and Lockhart JJ. discusses the meaning of the expression "special circumstances" as used in s.102(1)(a) of the Social Security Act 1947. Their Honours said:
"The legislature has indicated that six months latitude is sufficient in the normal case. The Director-General has power to fix a longer period in special circumstances. Presumably in this context special circumstances must include events which would render the six months unfair or inappropriate. ... The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase 'special circumstances', although lacking precision, is sufficiently understood in our view not to require judicial gloss."
The majority of the Administrative Appeals Tribunal considered that the circumstances referred to in clause 8 as special must be "circumstances relating to 'relevant offences' as defined in the Act and Guidelines." I do not think the language implies this restriction. It seems to me it may be open to regard circumstances as special, though they do not fall within these limits, if they affect the appropriateness of having regard to the presumptions set out in the clause. There may be a temptation in this case, where the guideline is invoked to increase the severity of the decision, to exclude it by applying a rule of strict construction in favour of the subject. But that would be short-sighted; for, in another case, an appeal to "special circumstances" may be made by a practitioner seeking to avoid the reach of a presumption. The construction of clause 8 may illustrate what Cardozo J. said about a similar argument (an appeal to a maxim enjoining an interpretation in favour of a taxpayer) in Burnet, Commissioner of Internal Revenue v. Guggenheim (1933) 288 US 280 at 286:
"There are many facets to such a maxim. One must view them all, if one would apply it wisely. The construction that is liberal to one ... may be illiberal to others."
But it is not necessary to accept the majority's restrictive view of "special circumstances" under clause 8, in order to support their denial of the proposition that the two convictions in 1976 were available to be considered against Dr. Thoo. The Act and the Guidelines confer a broad power to take account of matters within the scope of the inquiry undertaken. The scope of the inquiry is to be ascertained from the Act and Guidelines - and particularly s.124F. Nowhere in these is there any suggestion that a conviction which does not relate either to a relevant offence or to the equivalent of a relevant offence (s.124F(3)(a)(ii), clauses 6(b), 8(c)(ii) of the Guidelines) is to be taken into account against the practitioner. The very description "relevant offence", though the subject of definition, is pregnant with meaning. It is not just the equivalent of a neutral expression such as "prescribed offence", which might have been used - it designates those offences the legislature regarded as relevant, and does so not the less because the peculiarities of drafting phraseology have led to the awkward existence of offences I have called equivalent to relevant offences. A feature of the legislation which should not be overlooked is that it is intended to be administered by committees in a fairly informal manner; they are hardly likely to have had thrust upon them the extremely difficult task of drawing a line between immaterial convictions and those having some more or less remote bearing on their inquiry. Parliament drew the line.
If confirmation is needed, it is to be found in clause 5 of the Guidelines. That clause forbids a committee to review the decision of the court in relation to a relevant offence. It would be odd if the committee could not review the convictions which are at the centre of its inquiry, but could review peripheral convictions. The only reasonable explanation is that peripheral convictions were not contemplated as being before a committee.
A conviction which is not relevant cannot constitute a special circumstance. Accordingly, the majority of the Tribunal did not err in law in excluding the two convictions from consideration.
Even if, contrary to the conclusion just stated, regard could be had to convictions of offences which were neither relevant offences nor the equivalent of relevant offences, a question would remain whether, upon the facts of this case, it was open to the Committee to see the particular convictions in question as constituting "special circumstances" enabling it to decline to have regard to clause 8(a). These particular convictions could hardly be thought to demonstrate that Dr. Thoo was likely to seek to enrich himself by making false claims upon Medicare. The offences had been committed for a different and special purpose, many years before, when Dr. Thoo first commenced to practice, in an isolated town, on his own account. They were brought to the attention of the magistrate who dealt with the later matters, and were not considered by him to be prior convictions of sufficient importance to persuade him to refrain from allowing Dr. Thoo the benefit of s.19B of the Crimes Act 1914 in respect of the matters with which he was concerned. The Guidelines (clause 5) required the Committee to accept the magistrate's decision. However, it is unnecessary to reach a conclusion on this point.
The appeal should be dismissed with costs.
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