Nicholl Holdings Pty Ltd v Minister for Health
[2014] FCCA 295
•24 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NICHOLL HOLDINGS PTY LTD v MINISTER FOR HEALTH | [2014] FCCA 295 |
| Catchwords: ADMINISTRATIVE LAW – Judicial review – whether decision is of an “administrative character made under an enactment” – whether decision of an administrative or legislative character – conduct engaged in to make decision – Administrative Decisions (Judicial Review) Act 1977 (Cth) – Health Insurance Act 1973 (Cth). |
| Legislation: Legislative Instruments Act 2003 |
| Evans v Friemann (1981) 35 ALR 428 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 RG Capital Radio Limited v The Australian Broadcasting Authority [2001] 185 ALR 573 Griffith University v Tang [2005] 213 ALR 724 Tooheys Limited v Minister for Business and Consumer Affairs (1981) 36 ALR 64 Robinson v Western Australian Museum (1977) 16 ALR 623; 138 CLR 283 |
| Applicant: | NICHOLL HOLDINGS PTY LTD ACN 063 703 748 |
| Respondent: | MINISTER FOR HEALTH |
| File Number: | BRG 284 of 2013 |
| Judgment of: | Judge Coker |
| Hearing date: | 24 July 2013 |
| Date of Last Submission: | 24 July 2013 |
| Delivered at: | Townsville |
| Delivered on: | 24 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Campbell QC |
| Solicitors for the Applicant: | Roberts Nehmer McKee |
| Counsel for the Respondent: | Ms M Brennan |
| Solicitors for the Respondent: | Ashurst Australia |
ORDERS
That the Applicant be granted an extension of time to proceed with the Application filed on 11 April 2013.
That the Preliminary Assessment of a District of Workforce Shortage application be referred back to the Respondent for further consideration.
That the further consideration of the Preliminary Assessment of a District of Workforce Shortage application be done in accordance with the “Section 19AB Guidelines” which commenced on 18 October 2001.
| FEDERAL CIRCUIT COURT AT TOWNSVILLE |
BRG 284 of 2013
| NICHOLL HOLDINGS PTY LTD ACN 063 703 748 |
Applicant
And
| MINISTER FOR HEALTH |
Respondent
REASONS FOR JUDGMENT
There are presently two applications before the court. The first is an application for an extension of time to lodge an application for an order to review, pursuant to the provisions of section 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977. The application for extension of time was filed on 11 April 2013. The order sought is simply to the effect that the Applicant applies for an extension of time under rule 31.02 to lodge an application for an order for review under the Administrative Decisions (Judicial Review) Act 1977.
Accompanying that application for an extension of time was the draft originating application for judicial review. The orders contained or sought within the originating application for judicial review were in these terms:
(1)An order setting aside the decision of the delegate and substituting it with the Court’s decision approving the PADWS – Preliminary Assessment of District of Workforce Shortage - application dated 27 September 2012.
(2) In the alternative:
(a)An order referring the PADWS application back to the Respondent for further consideration, subject to the direction that the Respondent consider and afford appropriate weight to the basis of the Applicant’s PADWS application, namely ‘local special needs’.
(b)An order requiring that any further consideration of the PADWS application be done in accordance with the “Section 19AB Guidelines” which commenced on 18 October 2001.
In the outline of submissions filed on behalf of the applicant on 15 July 2013, the applicant’s counsel detailed more comprehensively the orders that were sought and, in particular, perhaps a greater range of alternative approaches that could be taken in relation to the application should it be the case that leave were granted to proceed pursuant to an extension of a time. The orders sought were detailed in paragraphs 75, 81, 84 and 85 of the outline. They were as follows:
(1)75. The Applicant seeks an order for an extension of time.
(2)81. The Applicant seeks an order setting aside the decision of the delegate and substituting it with the Court’s decision approving the PADWS application dated 27 September 2012.
(3)84. In the event your Honour is not prepared to make such an order, then the Applicant seeks an order referring the PADWS application back to the Respondent for further consideration, subject to the direction that the Respondent consider and afford appropriate weight to the basis of the Applicant’s PADWS application, namely ‘local special needs’.
(4)85. In addition, the Applicant seeks an order requiring that any further consideration of the PADWS application be done in accordance with the 2001 Guidelines, because these were the relevant guidelines applicable to the delegate’s decision at the time.
The initial application seeking both an extension of time and the orders arising from judicial review were directed to the Department of Health and Ageing ABN 83 605 426 759. However, it appears clear that the correct respondent to the application is the Minister for Health, and that has been substituted in later documentation, filed in respect of the proceedings.
The respondent has filed a Notice of Address for Service on 30 April 2013. The position taken by the respondent in relation to the proceedings is to oppose each of the orders sought in relation to the proceedings. Interestingly, the opposition to the application for an extension of time is based, not so much on whether or not leave should be granted to extend the time for the bringing of the proceedings but, rather, to be couched in terms of the extension of time being unnecessary as a result of the fact that the application which is sought to be relied upon, pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 is “incompetent and the court does not have jurisdiction to review the ‘preliminary assessment’ of 23 October 2012”.
The issue was not to any real extent pressed in argument on the part of the respondent, though, of course, it is necessary for the court to determine whether in fact leave should be granted to proceed out of time as well as to consider the argument as to whether the court has jurisdiction in relation to the matter.
Before addressing the various issues that are necessary in relation to the matter, however, it is appropriate that some background be established, so as to consider both aspects of the applications that are before the court. Insofar as the positions of each of the applicant and respondent are concerned, it is generally accepted that there is little dispute factually, in relation to the circumstances that exist.
Pursuant to an agreement with the Commonwealth which was reached some considerable time ago, the applicant is to build and operate a “GP Superclinic” in Townsville. The premises have been established in Townsville and determination as to when the GP Superclinic will open is a matter at least, to some extent, to be considered in terms of this decision.
There is presently a GP Superclinic operated by the applicant in Townsville. Initially, that clinic was operated at the corner of Stokes and Sturt Street, Townsville but as Evan Nicholls deposes in his affidavits, that clinic closed as a result of the lease concluding and is currently operated by the applicant from premises located at 89 Bundock Street in Townsville. The applicant operates that clinic in Townsville with the assistance of various employees, including both Australian trained doctors and overseas trained doctors.
Dr Nicholls deposes in his affidavit of 11 April 2013 at paragraph 7 the following:
In order to guarantee the existence of a medical workforce essential to the operations of the Townsville GP Superclinic, the Applicant intended to employ, and required, four Overseas Trained Doctors (OTD).
Dr Nicholls further deposed to the fact, that overseas trained doctors had been employed at the two previous locations for the operation of the GP Superclinic, being at the corner of Stokes and Sturt Streets, Townsville, and at the current location at Bundock Street in Townsville.
It is submitted on the part of the applicant, that there is no issue with regard to there being insufficient appropriately trained Australian doctors to operate the new GP Superclinic and it is further submitted that there is not an issue with regard to the qualification or appropriateness of the overseas trained doctors. That is not specifically responded to on the part of the respondent and I am satisfied that the silence in respect of that issue confirms that it is not disputed that there are insufficient Australian trained doctors to operate the clinic and that there are appropriately qualified overseas trained doctors available for the operation of the clinic.
As submitted on the part of the applicant:
What is in issue essentially concerns medical benefits being paid by the Commonwealth for medical services provided by appropriate overseas trained doctors. Without the ability to claim medical benefits for medical services provided by overseas trained doctors, patients would be required to pay for the whole cost of any treatment.
As is obvious, again from the evidence of Dr Nicholls, the intention was to employ overseas trained doctors but that those overseas trained doctors would require the Minister’s approval, at least for the purposes of being able to claim medical benefits from the Commonwealth, for the provision of their medical services. Otherwise, Dr Nicholls says that the whole thrust and reason for the establishment of the GP Superclinic in Townsville would be subverted, it being the case that those who would constitute the bulk of the patients, would be unable to attend, as they would be unable to obtain medical services, provided under the Medicare scheme.
The payment of medical benefits for services provided by overseas trained doctors is regulated by section 19AB of the Health Insurance Act 1973 (the act). Overseas trained doctors cannot generally receive payment of medical benefits for services provided by them. The exceptions are set out in subsections (1), (2) and (3) of the act. Section 19AB of the Health Insurance Act is in these terms:
19AB Medicare benefits not payable in respect of services rendered by certain overseas trained doctors etc.
(1) Subject to subsection (3), a medicare benefit is not payable in respect of a professional service rendered by a person who is an overseas trained doctor or who is a foreign graduate of an accredited medical school, unless:
(a)the person first became a medical practitioner before 1 January 1997; or
(b) all of the following conditions are satisfied:
(i) the person was, at a time before 1 January 1997, an overseas trained doctor;
(ii) before 1 January 1997, the Australian Medical Council received an application from the person to undertake examinations, successful completion of which would ordinarily enable the person to become a medical practitioner;
(iii) on the day the application was so received, the person was eligible to undertake those examinations under the rules of the Australian Medical Council as in force on the day the application was so received; or
(d) both of the following conditions are satisfied:
(i) the person first became a medical practitioner before the commencement of this subparagraph;
(ii) the service was rendered after the end of the period of 10 years beginning when the person first became a medical practitioner; or
(e ) both of the following conditions are satisfied:
(i) the person was a permanent Australian at the time when the person first became a medical practitioner;
(ii) the service was rendered after the end of the period of 10 years beginning when the person first became a medical practitioner; or
(f) both of the following conditions are satisfied:
(i) the person became a permanent Australian after the time when the person first became a medical practitioner;
(ii) the service was rendered after the end of the period of 10 years beginning when the person first became a medical practitioner.
(2) Subject to subsection (3), a medicare benefit is not payable in respect of a professional service rendered on behalf of a person who is an overseas trained doctor or who is a foreign graduate of an accredited medical school, unless:
(a)the person first became a medical practitioner before 1 January 1997; or
(b) all of the following conditions are satisfied:
(i) the person was, at a time before 1 January 1997, an overseas trained doctor;
(ii) before 1 January 1997, the Australian Medical Council received an application from the person to undertake examinations, successful completion of which would ordinarily enable the person to become a medical practitioner;
(iii) on the day the application was so received, the person was eligible to undertake those examinations under the rules of the Australian Medical Council as in force on the day the application was so received; or
(d) both of the following conditions are satisfied:
(i) the person first became a medical practitioner before the commencement of this subparagraph;
(ii) the service was rendered after the end of the period of 10 years beginning when the person first became a medical practitioner; or
(e) both of the following conditions are satisfied:
(i) the person was a permanent Australian at the time when the person first became a medical practitioner;
(ii) the service was rendered after the end of the period of 10 years beginning when the person first became a medical practitioner; or
(f) both of the following conditions are satisfied:
(i) the person became a permanent Australian after the time when the person first became a medical practitioner;
(ii) the service was rendered after the end of the period of 10 years beginning when the person first became a medical practitioner.
(3) The Minister may, by writing, grant an exemption from the operation of subsections (1) and (2) in respect of a person or a class of persons.
It is noteworthy that the exceptions contained within section 19AB set out a number of criteria that must be fulfilled, in order for medical benefits to be paid for services provided by an overseas trained doctor. However, subsection (3) specifically provides an alternative to meeting the various criteria set out in subsections (1) and (2), in that the Minister has the power to grant an exemption with regard to those criteria.
As submitted on the part of the applicant, the effect of this is that an overseas trained doctor may, by means of an exemption granted by the Minister under subsection (3), be permitted to provide medical services which will be paid for pursuant to the Medicare system. To grant an exemption under subsection (3), guidelines determined by the Minister under subsection (4B) must be applied.
It appears acknowledged, that in compliance with subsection (4B) the Minister at the time, on 18 October 2001, issued a set of guidelines called “Section 19AB Guidelines” and that those guidelines were placed on the Federal Register of Legislative Instruments. In accordance with those guidelines, a Preliminary Assessment of a District of Workforce Shortage was able to be obtained. That assessment specifically considered whether a geographical area is a district of workplace shortage. Part 4.1.4 of the 2001 Guidelines provides as follows:
The requirement that workforce shortage exists in a district before exemptions can be granted for practice locations is determined by evaluating material relevant to the population need for professional services of the type that an applicant has proposed to perform in the district.
The preliminary assessment of district workforce shortage could be based on a number of criteria, including local special needs. An assessment made pursuant to such an inquiry was a common practice. As Dr Nicholls indicates in his affidavit material, on a number of occasions, including with respect to obtaining an assessment of local special needs relating to the operation of the first Doctors clinic at the corner of Stokes and Sturt Street in Townsville, the procedure was followed through, and a Preliminary Assessment of a District of Workforce Shortage was obtained.
It is contended on the part of the applicant, that obtaining a Preliminary Assessment of a District of Workforce Shortage is a preliminary, but essential, step in the process of an application then made by an overseas trained doctor seeking the Minister’s exemption from the operation of the provisions of section 19AB (1) and (2) of the Health Insurance Act 1973.
As submitted on the part of the applicant, the 2001 Guidelines contemplate a two-step process in relation to obtaining the Minister’s exemption. The determination of the district of workforce shortage question, and certainly a preliminary assessment in relation to whether there might be a district workforce shortage, is an essential step in relation to the Minister’s exercise of discretion in relation to whether there should be an exemption, pursuant to the provisions of section 19AB of the Act.
What is contended, is that a Preliminary Assessment of a District of Workforce Shortage, if successful, comes with an indication of its validity for a period of some time, generally three to six months but on occasion, as I understand the evidence, up to 12 months and its applicability to one position, for the consideration of employment of an overseas trained doctor. The applicant submits that:
Armed with an approved PADWS for six months, applicable to one position for one overseas trained doctor, an employer could go about the recruitment process of seeking to employ an overseas trained doctor -
and further contends, that once a suitable overseas trained doctor was found, an employer could provide the successful PADWS to the overseas doctor, to be used as evidence supporting the overseas trained doctor’s application for an exemption under section 19AB of the Act.
The dispute on the part of the respondent, at least insofar as that particular aspect of the matter is concerned, is to say that there is no linkage between the obtaining successfully of a Preliminary Assessment of District of Workforce Shortage and the second stage or step, in the application by the overseas trained doctor for an exemption, pursuant to the provisions of section 19AB(3).
On the face of it, that certainly appears to be the case but there is legitimacy in the argument put by the applicant, which is to the effect, that an employer requiring the services of an overseas trained doctor, as Dr Nicholls says is the case here, would not commence the recruitment process without at least some indication of a favourable assessment as to there being a district workplace shortage, arising from local special needs.
Dr Nicholls’ evidence was to the effect that such an understanding was held by him and no doubt others, in relation to the steps to be required to be taken, in relation to such a matter, because to not have the preliminary assessment of a favourable nature, could result in significant expenditure on the part of a doctor seeking to recruit the services of an overseas trained doctor, which would then be, to all intents and purposes, a waste, if there was not a prior understood and accepted need for additional health professionals arising from, as would be the case here, local special needs.
When the applicant was advised that the Preliminary Assessment of District of Workforce Shortage application had not been approved, steps were taken by the applicant to seek a review of the delegate’s decision. The delegate, Mr Paul Gorman, the Assistant Director of Workforce Regulation, noted in his correspondence of 22 or 23 October 2012, it being unclear as to the exact date, the following at paragraphs 3 and 4:
3. … I am required to assess PADWS applications according to the current service profile of the medical practice. I can advise that I am unable to provide a favourable consideration on the basis of intended service provision.
4. Please note that DWS restrictions are applied uniformly to all medical practitioners. The Department is unable to consider the nature of medical services within the specialty of general practice as a special circumstance in lieu of the DWS status of the area, with the exception of services provided within the after hours period only.
The applicant took steps to review the determination of the delegate, noting particularly that the delegate had indicated that the PADWS application process had been discontinued as of 6pm Australian Eastern Standard Time on 28 September 2012. What is necessary to recognise in that regard is that the PADWS application had been lodged by the applicant on 27 September 2012.
The reason for the lodgement on that occasion was because of a recognised change in the guidelines. The guidelines were to change from 3 September 2012. However, prior to that date, on 24 August 2012, an employee of the applicant, Ms Migiwa Tomita, contacted the delegate of the respondent, with regard to whether the process of making an application for a Preliminary Assessment of District of Workforce Shortage application was still to continue and was advised, as she put it in her email of 24 August 2012, that an application for a District of Workplace Shortage determination with regard to the Townsville Superclinic was required to be made prior to 28 September 2012 at 5pm. Ms Tomita also noted, as she said she was advised and it was not challenged, that it was not necessary to ensure that the Superclinic was opened.
Ms Tomita further noted, that after 28 September 2012 applications were not to be considered and so the person that Ms Tomita spoke to, Ms Abha (Bedi), advised that the application should be gotten in, sooner rather than later. Most particularly, Ms Tomita’s understanding, and no doubt it came from the discussions that she says she had with the representative, was to the effect that:
Because Townsville is not in a DWS area, we have to do what we normally do, send an application form with appropriate support documents for special circumstances.
Ms Tomita’s evidence was not challenged, and it is noteworthy that, in accordance with that understanding, the applicant lodged the Preliminary Assessment of a District of Workforce Shortage application with the respondent and the application was based upon a local special needs consideration, pursuant to the prior practice.
It was following receipt of that application, that Mr Gorman’s letter of 22 or 23 October 2013 was received.
Insofar as the attempts made by the applicant to seek review of the delegate’s decision is concerned, the affidavit of Dr Nicholls filed 11 April 2013 details the steps taken. It is certainly correct that the application before this Court was brought outside the statutory time limit, but as Dr Nicholls explains, a number of other steps were mistakenly entered into in relation to the reconsideration of the delegate’s decision. At paragraphs 13 through 18 of the affidavit of 11 April 2013, Dr Nicholls says:
13.On 30 November 2012, the Applicant sought a reconsideration of the delegate’s decision by the Minister for Health and Ageing. Exhibited hereto and marked with the letter “EN5” is a copy of the letter to the Minister for Health and Ageing.
14.On 14 January 2013, a delegate of the Minister for Health and Ageing informed the Applicant that they were unable to consider the Applicant’s request. Exhibited hereto and marked with the letter “EN6” is a copy of the letter from the Minister for Health and Ageing.
15.On 29 January 2013, the Applicant filed an application in the Administrative Appeals Tribunal (“the AAT”) for review of the delegate’s decision. A copy of this application was not served on the Respondent as pursuant to section 29(II) of the Administrative Appeals Tribunal Act 1975 the registrar of the AAT is to advise the decision maker of the application for review of the decision. Exhibited hereto and marked with the letter “EN7” is a copy of that application to the AAT (without attachments).
16.On 14 February 2013 I advised Craig Rayner of the Department of Health & Ageing and with whom I had been dealing on Townsville GP Superclinic issues, of the pending review in the AAT.
17.On 13 March 2013 the application in the AAT for review was withdrawn.
18.On 26 March 2013 I advised Craig Rayner of the intention to proceed to have the delegate’s decision reviewed by way of Judicial Review in this Court.
What is contended on the part of the applicant, therefore, is that whilst the proceedings in this Court with regard to review of the decision is made out of time, it was made only once, other avenues were explored and found to be inappropriate. As submitted on the part of the applicant, the matters that are detailed in the affidavit of Dr Nicholls strongly support any submission made, that the applicant has actively sought a review of the delegate’s decision.
As I previously indicated, the respondent opposes the application for extension of time, but not upon any ground that would suggest that there has been inordinate delay or a failure to take steps in relation to the matter, but rather as a result of what is suggested to be an incompetent application and a further submission that this Court does not have a jurisdiction to review the “preliminary assessment”.
The applicant submits, that there is no prejudice to the respondent in relation to the proceedings, given the fact that whilst the application was not brought in this Court within the designated timeframe, the respondent was well aware of the applicant’s attempts to seek review and that there could be no surprise in the application for an extension of time to have a judicial review heard, in light of the prior steps that were taken by the applicant in relation to the matter.
The issue of prejudice is a matter of significance, in relation to any determination, as well as an explanation of any delay, in relation to the bringing of an application in the appropriate forum. However, I am satisfied here, that there is a clear explanation of the delay in relation to the proceedings, in that a number of other steps were taken by or on behalf of the applicant to seek a review of the delegate’s decision, and through unfortunate circumstances, the applications for review were brought in an appropriate forum.
There was certainly no unexplained delay, therefore, in relation to the proceedings, and I am also satisfied that there is no prejudice to the respondent, clearly noting that there was indication given, both in writing and orally, of the stance of the applicant in relation to the proceedings and of the determination to seek a review of the delegate’s decision. I am satisfied, therefore, that it is appropriate that leave should be granted to proceed in relation to the matter and that an extension of time should be granted in respect of the lodgement and hearing of the application for an order to review, pursuant to section 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977.
What is required, then, is to consider the application for judicial review and to determine whether, in fact, it is an appropriate case for judicial review and, if so, whether the review should be successful. Counsel for both the applicant and the respondent have provided submissions in relation to that aspect of the matter, and I have been particularly assisted by the submissions that have been provided.
There is no suggestion that this Court does not have jurisdiction in appropriate cases to determine applications by persons aggrieved by a decision made. Section 3 of the Administrative Decisions (Judicial Review) Act requires that an applicant establish certain matters prior to consideration of any ground for review. Section 3(1) requires a person to establish that there was a decision made to which the Administrative Decisions (Judicial Review) Act applies, and section 3(4) requires a person establish that they are a person aggrieved pursuant to the decision made.
Section 3(1), under the heading “Interpretation” and relevant to this Act, is in these terms:
(1) In this Act, unless the contrary intention appears:
ACT enactment means an enactment as defined by section 3 of the Australian Capital Territory (Self-Government Act 1988.
Commonwealth authority means an authority or other body (whether incorporated or not) this is established or continued in existence by or under an Act.
decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):
(a)under an enactment referred to in paragraph (a), (b), (c ) or (d) of the definition of enactment; or
(b)by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;
other than:
(c) a decision by the Governor-General; or
(d)a decision included in any of the classes of decisions set out in Schedule 1.
duty includes a duty imposed on a person in his or her capacity as a servant of the Crown.
enactment means:
(a) an Act, other than:
(i)the Commonwealth Places (Application of Laws) Act 1970; or
(ii) the Northern Territory (Self-Government) Act 1978; or
(iii)an Act or party of an Act that is not an enactment because of section 3A (certain legislation relating to the ACT); or
(b)an Ordinance of a Territory other than the Australian Capital Territory or the Northern Territory; or
(c)an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section 3A; or
(ca)an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; or
(cb)an instrument (including rules, regulations or by-laws) made under an Act or part of an Act covered by paragraph (ca); or
(d)any other law, or a part of a law, or the Northern Territory declared by the regulations , in accordance with section 19A, to be an enactment for the purposes of this Act;
and, for the purposes of paragraph (a), (b), (c), (ca) or (cb), includes a part of an enactment.
failure, in relation to the making of a decision, includes a refusal to make the decision.
Family Court Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).
Federal Circuit Court means the Federal Circuit Court of Australia.
Federal Circuit Court Rules means the Rules of Court made under the Federal Circuit Court of Australia Act 1999.
Federal Court Rules means the Rules of Court made under the Federal Court of Australia Act 1976.
Finance Minister means the Minister administering the Financial Management and Accountability Act 1997.
officer of the Commonwealth has the same meaning as in paragraph 75(v) of the Constitution.
order of review, in relation to a decision, in relation to conduct engaged in for the purpose of making a decision or in relation to a failure to make a decision, means an order on an application made under section 5, 6 or 7 in respect of the decision, conduct or failure.
the Family Court means the Family Court of Australia.
the Federal Court means the Federal Court of Australia.
Section 3(4), relating to the establishment of whether a person seeking a review is a person aggrieved by a decision, is in these terms:
(4) In this Act:
(a)a reference to a person aggrieved by a decision includes a reference:
(i) to a person whose interests are adversely affected by the decision; or
(ii) in the case of a decision by way of the making of a report or recommendation – to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with a report or recommendation; and
(b)a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.
Succinctly, sections 3(1) and 3(4) require the applicant to satisfy the Court that each of the individual criteria have been met in order to determine whether the Court properly has jurisdiction, in relation to such matters. The various considerations are:
(1)whether in this instance the delegate of the respondent made a decision when they did not approve the Preliminary Assessment of a District of Workforce Shortage application;
(2)whether the delegate’s decision was of an administrative character;
(3)whether the delegate’s decision was made under an enactment; and
(4)whether the applicant was aggrieved by the decision to not approve the Preliminary Assessment of a District of Workforce Shortage application.
Each of those criteria need to be considered in relation to determining the issue of jurisdiction. The first is whether, in fact, a decision has been made by the delegate. In this instance, the applicant says that a decision clearly has been made, and the applicant says that as a result of the decision having been made, there is action taken by the delegate by way of an overt act, in this instance, the notification of the non‑approval of the assessment.
I have been referred to a number of decisions of both the Federal Court and the High Court in relation to assessing whether a decision is conclusive as well as whether a decision is therefore reviewable. In Evans v Friemann (1981) 35 ALR 428 at 431, Fox J noted:
In ordinary usage, the special feature of a decision is its conclusiveness, or finality for the time being, and this is to be contrasted with the thought or consideration which precedes it … it seems to me to amount to something of significance which is reasonably definite, which is final and conclusive for immediate purposes at least, which is manifested in some way, which emanates from an authoritative or responsible source, and which materially affects another person or persons.
The High Court also had need to consider the issues and in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ with whom Brennan and Deane JJ agreed considered the meaning of “decision” and at page 337, said the following:
The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable “decision” is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination.
It is argued on the part of the applicant that there is both a conclusiveness to the determination of the delegate, in relation to the Preliminary Assessment of a District of Workforce Shortage application and that as a result of the conclusive nature of that decision, it is reviewable. It is the Department, which established the Preliminary Assessment of a District of Workforce Shortage application process. The process which was to be followed, at least until either 3 September 2012, or the extended date of 28 September 2012, required an applicant to complete the prescribed form and elect the basis of the Preliminary Assessment of a District of Workforce Shortage application.
That required consideration of the basis upon which the assessment was sought and, as was noted in these proceedings, serial 10 of the prescribed form invited an applicant to attach evidence supporting the grounds for those circumstances, whatever they might be. Noteworthy also is the fact that the prescribed form, under the heading “Important Information”, informed the applicant that an approved Preliminary Assessment of a District of Workforce Shortage was valid for a period of six months from the date of approval and that it was applicable to one position for one overseas trained doctor. Any request to engage multiple overseas trained doctors needed to be specified in the form in another manner.
The evidence that is before the court, and it clearly appears unchallenged, is that the common practice was to obtain, as a first step in relation to any approval for overseas trained doctors, various assessments to assist in obtaining a Preliminary Assessment of a District of Workforce Shortage, upon whatever basis might properly be able to be argued, so that the approval could then be utilised as a part and parcel of the second step, which was the application by the individual overseas trained doctor to seek the exemption of the Minister.
Notwithstanding the information received by Ms Tomita and acted upon by Ms Tomita on behalf of the applicant in these proceedings, the delegate informed the applicant that the Preliminary Assessment of a District of Workforce Shortage application had not been favourably considered and was not approved, upon the basis that the delegate was of the view that he was required to assess the application according to the current service profile and the reasons provided by the delegate indicated that he was not able, in those circumstances, to provide a favourable consideration of the Preliminary Assessment of a District of Workforce Shortage application.
The correspondence from the delegate used a number of terms in relation to the decision that was made in relation to the matter. In particular, the delegate uses the term “advice” though at point 5 under the heading, “Important Notes to Consider”, which is on page 2 of the response of 23 October 2012, Mr Gorman says:
Please note that the PADWS application process has been discontinued as of 6:00pm Australian Eastern Standard Time on 28 September 2012. The Department is no longer able to accept PADWS applications or supporting evidence for previously submitted applications. As the PADWS application process has been discontinued, all decisions relating to the eligibility of overseas trained doctors (OTDs) and foreign graduates of an accredited medical school (FGAMS) will now be based on provisions contained within the revised Section 19AB Guidelines. The revised section 19AB Guidelines are available online from the ComLaw website:
The important information provided there is information relating specifically to a decision made by the delegate as to the guidelines to be applied in relation to any such application. The delegate has made a decision clearly in relation to the application of the new or revised guidelines which were provided, pursuant to amendments as and from 3 September 2012.
Whether in fact that is correct or not is a matter which will need to be further considered, but it is clear that the delegate has made a decision in relation to this matter and I am satisfied that the decision to not approve the Preliminary Assessment of a District of Workforce Shortage application is one which is clearly falling within the ambit of a decision which at least needs to be considered as to whether it is of an administrative character or not.
The second step in relation to the matter then, to determine whether the decision of the delegate, notified in relation to the Preliminary Assessment of a District of Workforce Shortage application, is a decision of an administrative character is not so difficult to determine in relation to this matter.
In RG Capital Radio Limited v The Australian Broadcasting Authority [2001] 185 ALR 573, the Full Court of the Federal Court was asked to consider the issue of whether a decision was or was not of an administrative nature. There, the court noted at paragraph 40 that there was no simple rule for determining whether a decision is of an administrative or a legislative character, but they went on at paragraph 43, under the heading, “Determining content of a general rule as distinct from the application of a rule to particular facts”, to state:
Perhaps the most commonly stated distinction between the two types of decision is that legislative decisions determine the content of rules of general, usually prospective, application whereas administrative decisions apply rules of that kind to particular cases.
It is submitted, therefore, that the nature of the determination of the Preliminary Assessment of a District of Workforce Shortage application falls within the commonly understood meaning of an administrative decision, in that the delegate was applying the rules, as he understood them, in that particular case, rather than determining the content of the rules, particularly insofar as what was to occur in relation to the application before him. I am satisfied again that the decision was one of an administrative nature, where the delegate was purporting to apply the rules in relation to the particular application, rather than to acting in any other way.
The third step in relation to determining the matter is then to consider whether, in fact, the decision was one that was made under an enactment. Section 3(1) of the Administrative Decisions (Judicial Review) Act defines an enactment to include an instrument, rules, regulations or bylaws under an Act. The respondent acknowledges that, in their submissions where they note at paragraph 30 of the submissions, the following:
A decision to which the ADJR Act applies is relevantly a decision of an administrative character made, proposed to be made or required to made under an enactment. By virtue of the Legislative Instruments Act 2003, the Old Guidelines were, and the Guidelines are, an instrument within the meaning of 3(1)(c) definition of enactment in the ADJR Act.
What is required here, however, is to determine whether the decision of the delegate can be characterised as being a decision under an enactment. Both the applicant and the respondent acknowledge that any determination of that particular issue is a difficult matter to determine. Both acknowledge that relevant matters need to be considered and include a consideration of the actual or potential effects of the decision, on a person. Interestingly, both the applicant and respondent refer to the decision of the High Court in Griffith University v Tang [2005] 213 ALR 724 and to the consideration of whether a decision is made under an enactment. At paragraph 89 of the decision, Gummow, Callinan and Heydon JJ noted:
The determination of whether a decision is “made…under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be “made…under an enactment” if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.
Clearly, the applicant’s position is to say that the decision to approve, or, as is the case here, not approve the Preliminary Assessment of a District of Workforce Shortage application, is authorised under the 2001 Guidelines which were issued pursuant to section 19AB(4B) of the Act. At issue is whether, in fact, the decision made is one in which consideration was given to all appropriate matters required, pursuant to the guidelines.
Whilst the 2012 Guidelines were effective from 3 September 2012, the department’s own position in relation to the matter was to indicate that applications for a Preliminary Assessment of a District of Workforce Shortage would be received and accepted, until 6.00pm on 28 September 2012. In such a case, particularly noting that the indications given by the Department that an application which no longer existed, pursuant to the 2012 Guidelines would be accepted, clearly implied that there would be an application of the 2001 Guidelines, in relation to the application if it were received within the timeframe prescribed by the Department.
The correspondence from Mr Gorman of October 2012 indicate that the application was considered, pursuant to the considerations arising under the 2001 Guidelines, when the decision was made not to approve the Preliminary Assessment of a District of Workforce Shortage application. However, as was emphasised on the part of the applicant, the 2001 Guidelines set out matters relevant to the consideration of a district of workforce shortage and how a district of workforce shortage was to be determined.
Part 4.2 specifically provided that the delegate may consider “local special needs” in determining the district of workforce shortage status of an area. The form which was prescribed by the Department authorised an application to be made on a number of special circumstances which included local special needs.
As submitted in relation to this matter, if it were to be the case that local special needs was a factor to be considered and the determination of the delegate was silent on the matter, then the delegate has failed to properly consider the application if, as is submitted, the guidelines to be followed in relation to the application in this matter, were those which were detailed in the 2001 Guidelines and those guidelines were made under an enactment issued, pursuant to section 19AB(4B) of the Act.
I am satisfied that the third factor to be considered in relation to matters such as this, namely whether the decision was made under an enactment, is the case in this particular proceeding.
Finally, consideration needs to be given to whether the applicant in this case is an aggrieved person. An aggrieved person, as I noted previously, is defined in section 3(4) of the Administrative Decisions (Judicial Review) Act 1977. An aggrieved person is a person whose interests are adversely affected by the decision. In that respect, I was again referred by counsel for the applicant to the decision of Ellicott J in Tooheys Limited v Minister for Business and Consumer Affairs (1981) 36 ALR 64, where his Honour specifically turned his mind to the meaning of the words “a person who is aggrieved.” There, his Honour stated at page 79 commencing at or about line 25:
The words “a person who is aggrieved” should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties (cf Robinson v Western Australian Museum (1977) 16 ALR 623; 138 CLR 283).
No argument was made in relation to that particular aspect of the dispute in relation to this matter and it is understandable that that would be the case. The applicant was not successful in obtaining an approved Preliminary Assessment of a District of Workforce Shortage from the delegate. The applicant argues, understandably, that its commercial interests in the GP Superclinic are adversely affected by the decision of the delegate not to provide the approval.
It was noted in the affidavit filed by Dr Nicholls that his intention was to recruit overseas doctors to practice at the GP Superclinic and, from a commercial aspect, the applicant needed such overseas trained doctors to ensure the existence and viability of the operation of the GP Superclinic. I am satisfied, therefore, that the applicant is a person aggrieved by the decision of the delegate not to approve the Preliminary Assessment of a District of Workforce Shortage.
In all the circumstances, therefore, I am satisfied that the applicant has addressed and met each of the criteria required to be considered in order to confer jurisdiction on this court to hear and determine an application for an order to review.
I turn then to consideration of the grounds for an order of review. The applicant contends that the grounds for the application for an order of review in this case are made pursuant to the provisions of sections 5(1)(e) and 5(2) of the Administrative Decisions (Judicial Review) Act. Section 5(1)(e) is in these terms:
(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
Section 5(2) is in these terms:
(2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a)taking an irrelevant consideration into account in the exercise of a power;
(b)failing to take a relevant consideration into account in the exercise of a power;
(c)an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e)an exercise of a personal discretionary power at the direction or behest of another person;
(f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h)an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j)any other exercise of a power in a way that constitutes abuse of the power.
The applicant here relies primarily upon those matters detailed in section 5(2)(a) and (b). In other words, it is contended that the delegate has taken into account an irrelevant consideration, or perhaps more significantly still, has failed to take a relevant consideration into account.
The facts in relation to that particular aspect of the matter again appear uncontested. Prior to the change to the guidelines, the applicant was informed through his employee, Ms Tomita, that an application for Preliminary Assessment of a District of Workforce Shortage would need to be lodged prior to 28 September 2012 and that, whilst the Superclinic had not opened, that was not relevant, insofar as a determination as to whether or not the application could be heard.
It was also noted by Ms Tomita, that the delegate informed her that Townsville was not a district of workforce shortage and, accordingly, the applicant would need to do what had previously been done, in making out a case for special circumstances.
The position taken by the delegate was to the effect, that whilst the application for a Preliminary Assessment of a District of Workforce Shortage was lodged within the timeframe notified by the department as being the time during which such applications would be accepted, as consideration was given after 6.00pm on 28 September 2012, the guidelines appropriate from 3 September 2012 were operative.
In that case, the delegate informed the applicant that the department was unable to consider the nature of medical services within a specialty of general practice as a special circumstance, with the exception of services provided within the after hours period. However, the form which was accepted by the department specifically included information to the effect that the guidelines for any decision-making under section 19AB of the Act, allowed for consideration of applications with local special needs.
In the circumstances, the argument appears clearly supportive of the fact that the delegate failed to take a relevant consideration into account in the exercise of the delegate’s powers.
The position of the respondent, however, is that there is no basis for suggesting that the old guidelines should be applied to the request for a Preliminary Assessment of a District of Workforce Shortage, lodged on 27 September 2012. The respondent says that the old guidelines had been revoked and that the applicant was aware of that. Therefore, the respondent submits that there is no inconsistency arising from the fact that the department accepted the lodgement of the appropriate application, which form arose pursuant to the old guidelines, but which was not recognised under the new guidelines. The respondent says that the delegate then considered the application for a Preliminary Assessment of a District of Workforce Shortage appropriately and therefore, under the new guidelines, the approval was not forthcoming.
In the circumstances, however, I cannot agree that that is the appropriate course. If the department, through its own actions and indications, acknowledged that the application for a Preliminary Assessment of a District of Workforce Shortage could be lodged up to and including at 6.00pm on 28 September 2012, then no other proper inference could be drawn than that the guidelines appropriate to the lodgement of such an application would be applied.
To suggest that the form would be accepted, but then could not possibly be approved because of a change of guidelines, flies in the face of rational thought. The application was not an application which could be brought pursuant to the new guidelines. To suggest therefore that the application could be brought, but that it was impossible to then receive an approval in relation to the application, because the new guidelines did not envisage such a preliminary assessment, is an outcome which could not possibly be accepted.
I am satisfied therefore that the appropriate course to follow in relation to any application for a Preliminary Assessment of a District of Workforce Shortage, lodged in accordance with the department’s own timelines and requirements, should properly be assessed pursuant to the 2001 Guidelines. As I have indicated, to suggest otherwise flies in the face of any rational consideration of what is appropriate, in relation to such proceedings.
In that instance it is clear then that the delegate has, in failing to make any reference whatsoever to the consideration of local special needs, failed to take a relevant consideration into account, in respect of the exercise of a power.
I am satisfied therefore that the appropriate course in relation to the matter is to refer the application for a Preliminary Assessment of a District of Workforce Shortage back to the respondent for further consideration, and that the consideration should be pursuant to the 2001 Guidelines, so that appropriate weight can be given to the basis of the application, namely, local special needs.
Before making final orders in relation to this matter, it is also proper that I should comment upon the suggestion that the court should substitute its discretionary decision for the body whose decision has been made. In other words, that the court should make an order to set aside the decision of the delegate and substitute it with a decision approving the Preliminary Assessment of a District of Workforce Shortage application of 27 September 2012.
I am not at all enamoured of such a suggestion in relation to this matter. Whilst the applicant referred me to a number of decisions in which the court gave consideration to the exercise of its discretion in such an instance, it was noteworthy that in each of those cases reference was made to particular or exceptional circumstances, in relation to that case.
In this instance, there are a number of factors to be considered in relation to any determination, not only whether there has or has not been a relevant consideration in respect of the exercise of the power. I would not suggest that simply because the matter is to be referred back to the respondent for consideration, in accordance with the 2001 Guidelines, that it is therefore appropriate for the court to impose its own discretionary assessment in relation to the matter, rather than the reassessment of all factors relevant, in relation to the determination.
I am not therefore intending to make orders with regard to the setting aside of the decision and the substitution of the court’s decision, but rather to refer the application back to the respondent for consideration in accordance with the 2001 Guidelines, those being the guidelines applicable to the delegate’s decision, at the time of lodgement of the application.
The orders of the court will therefore be as detailed at the commencement of these reasons.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Coker
Associate:
Date: 24 February 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Statutory Construction
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