Peers v Fletcher
[2024] VSC 427
•24 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 02357
| VALERIE PEERS | Plaintiff |
| v | |
| MARTIN FLETCHER | First Defendant |
| - and - | |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Watson J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 July 2024 |
DATE OF JUDGMENT: | 24 July 2024 |
CASE MAY BE CITED AS: | Peers v Fletcher |
MEDIUM NEUTRAL CITATION: | [2024] VSC 427 |
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JUDICIAL REVIEW – Whether Health Practitioner Regulation National Law (Victoria) (‘National Law’) valid – Whether CEO of Australian Health Practitioner Regulation Agency (‘AHPRA’) has standing to lay charges for alleged contraventions of the National Law – Cooperative legislation arrangement – No implied constitutional limitation – National Law valid – CEO has standing to lay charges – Proceeding dismissed with costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First Defendant | Ms C Boston SC with Mr Minh-Quan Nguyen | Russell Kennedy |
| For the Second Defendant | No appearance |
HIS HONOUR:
The plaintiff, Dr Valerie Peers, has been charged by the first defendant, Mr Martin Fletcher with breaching provisions of the Health Practitioner Regulation National Law (Victoria) (‘the National Law’).
Dr Peers alleges that the charges against her are invalid because:
(a) the National Law is invalid; and
(b) Mr Fletcher is not an ‘administrative officer of the State of Victoria’.
Dr Peers seeks:
(a) a writ of prohibition directed to the Magistrates’ Court of Victoria which is presently dealing with the charges against her;
(b) a declaration that Mr Fletcher has no standing to bring the charges against her; and
(c) an order that Mr Fletcher be required to verify on oath the State ‘under which he is an administrative officer’.
For the reasons which follow I have determined that:
(a) the National Law is valid; and
(b) Mr Fletcher was permitted to bring the charges against Dr Peers.
In the circumstances, Dr Peers’ originating motion should be dismissed.
The National Law
On 1 July 2010, the Health Practitioner Regulation National Law Act 2009 (Qld) (‘the Queensland Act’) came into force. Section 4 of the Queensland Act provides:
Application of Health Practitioner Regulation National Law
The Health Practitioner Regulation National Law set out in the schedule –
(a) applies as a law of this jurisdiction; and
(b)as so applying, may be referred to as the Health Practitioner Regulation National Law (Queensland); and
(c) as so applying, is a part of this Act.
The schedule to the Queensland Act provides in s 2 that the National Law commences in a participating jurisdiction ‘as provided by the Act of that jurisdiction that applies this Law as a law of that jurisdiction’. Section 3 provides that the object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners and students.
The Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) (‘the Act’) came into force on 1 July 2010. Section 1 of the Act states that its purpose is to ‘provide for the adoption of a national law to establish a national registration and accreditation scheme for health practitioners’.
Section 4 of the Act provides:
4 Application of Health Practitioner Regulation National Law
The Health Practitioner Regulation National Law, as in force from time to time, set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland—
(a) applies as a law of Victoria; and
(b)as so applying may be referred to as the Health Practitioner Regulation National Law (Victoria); and
(c) so applies as if it were part of this Act.
Each of the other States, the Australian Capital Territory and the Northern Territory are participating jurisdictions and have adopted the provisions of the National Law (in some cases with modifications).
Section 7 of the National Law provides as follows:
7 Single national entity
(1)It is the intention of the Parliament of this jurisdiction that this Law as applied by an Act of this jurisdiction, together with this Law as applied by Acts of the other participating jurisdictions, has the effect that an entity established by or under this Law is one single national entity, with functions conferred by this Law as so applied.
(2)An entity established by or under this Law has power to do acts in or in relation to this jurisdiction in the exercise of a function expressed to be conferred on it by this Law as applied by Acts of each participating jurisdiction.
(3)An entity established by or under this Law may exercise its functions in relation to—
(a) one participating jurisdiction; or
(b) 2 or more or all participating jurisdictions collectively.
…
Section 23 of the National Law establishes the Australian Health Practitioner Regulation Agency (‘AHPRA’). AHPRA is a body corporate which may sue and be sued in its corporate name and may do anything necessary or convenient to be done in the exercise of its functions. Those functions include in s 25(ka) doing ‘anything else necessary or convenient for the effective and efficient operation of the national registration and accreditation scheme’. In short, subject to the considerations of constitutional validity discussed below, it is plainly within AHPRA’s power to delegate the power to institute proceedings for offences against the National Law.
Schedule 3 to the National Law sets out various provisions relating to AHPRA with Part 1 of Schedule 3 providing for the appointment of a Chief Executive Officer to whom any of the functions of AHPRA may be delegated by its board. Mr Fletcher is the current Chief Executive Officer of AHPRA. Counsel for Mr Fletcher informed me that he had been delegated all of AHPRA’s powers, duties and authorities. Dr Peers did not contend to the contrary.
The charges against Dr Peers
On 4 November 2021 Dr Peers’ registration as a medical practitioner was suspended by the Medical Board of Australia under s 156 of the National Law. Section 207 of the National Law provides that during a period of suspension, a health practitioner who is suspended is taken not to be registered under the National Law other than for the purposes of Part 8.
Section 116 of the National Law provides that a person who is not a registered health practitioner must not knowingly or recklessly hold themselves out as being registered under the National Law. It is also an offence to obstruct an investigator in the exercise of a power under the Law without reasonable excuse.[1]
[1]Neither of these offences are found in Part 8 of the National Law.
On 21 April 2023 Mr Fletcher filed a charge sheet in the Magistrates’ Court alleging that Dr Peers had contravened s 116(1)(c) of the National Law on seven separate occasions between 15 November 2021 and 27 April 2022 and had committed the offence of obstructing an investigator on 5 May 2022. In accordance with s 6(3) of the Criminal Procedure Act 2009 (Vic) (‘CPA’) the charge sheet was signed by Mr Fletcher personally.
Is the National Law unconstitutional?
Dr Peers contends that the National Law is invalid because the Commonwealth has not legislated a national scheme following a referral by the States of their respective powers to the Commonwealth under s 51(xxxvii) of the Constitution.
Dr Peers could point to no express constitutional limitation on the part of the States to regulate medical practitioners. Indeed, it is central to her argument that the States have that power. Her argument is that the States must not exercise their respective powers in a way which creates national consistency or to put it another way, unless they refer their powers to the Commonwealth, they must exercise their powers in such a way that there is inconsistency between their respective regimes. There is nothing in this proposition. The text and structure of the Constitution do not require it and it is contrary to authority.
Certainly the mere existence of s 51(xxxvii) in the Constitution does not give rise to an implied limitation on the power of the States to enact cooperative legislation. It has long been recognised that cooperative legislative arrangements are permissible.
In R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (‘R v Duncan’)[2] the High Court had to consider the validity of the Coal Industry Tribunal established by the Coal Industry Act 1946 (Cth) and the Coal Industry Act 1946 (NSW). All members of the Court held that there was no impediment to a cooperative arrangement of that kind. Gibbs CJ said:
In the argument on behalf of the prosecutor a challenge was made to the legislative competence of the Commonwealth to create an authority jointly with a State, or at least an authority which derives from a State power which the Commonwealth itself could not confer upon it. It does not seem to me to matter whether the effect of the statutes of the Commonwealth and the State was to create one tribunal which derived power from two sources, or two tribunals, deriving power from different sources, but constituted by one person. In my opinion, it was within the power of the Commonwealth Parliament to follow either course. The Constitution effects a division of powers between the Commonwealth and the States but it nowhere forbids the Commonwealth and the States to exercise their respective powers in such a way that each is complementary to the other. There is no express provision in the Constitution, and no principle of constitutional law, that would prevent the Commonwealth and the States from acting in cooperation, so that each, acting in its own field, supplies the deficiencies in the power of the other, and so that together they may achieve, subject to such limitations as those provided by s 92 of the Constitution, a uniform and complete legislative scheme. Examples of co-operative action of that kind, which this Court has assumed to be valid, are to be found discussed in such cases as Wilcox Mofflin Ltd v State of NSW; Airlines of NSW Pty Ltd v New South Wales; and Clark King & Co Pty Ltd v Australian Wheat Board. Further, no reason is provided by constitutional enactment or constitutional principle why the Commonwealth and a State or States should not simultaneously confer powers on one person and empower that person to exercise any or all of those powers alone or in conjunction.[3]
[2](1983) 158 CLR 535.
[3]Ibid 552–553.
Dr Peers seeks to distinguish the holding in R v Duncan on the basis that that was an instance of the Commonwealth and a State each exercising legislative power within their constitutional ambit. Dr Peers says that where the Commonwealth does not have power, the States may not legislate in a cooperative way within the bounds of their constitutional authority. The argument fundamentally misapprehends the ambit of State legislative power under the Constitution, which is that:
[I]n the absence of any expressed or implied constitutional prohibition or of any relevant limitations upon State powers persisting from colonial times, it is to be presumed that any legislative power which naturally appertains to self-government and which is not conferred upon the Commonwealth Parliament remains in the States.[4]
[4]Ibid 589 (Deane J).
In her argument, Dr Peers relied heavily on passages from two of the judgments in Re Wakim; Ex parte McNally (‘Re Wakim’).[5] In that case, Gleeson CJ said:
The cross-vesting legislation has been commended as an example of co-operation between the Parliaments of the Federation. Approval of the legislative policy is irrelevant to a judgment as to constitutional validity; just as disapproval of the policy would be irrelevant. It is argued that the legislation is unconstitutional. That argument must succeed or fail on its legal merits. If it is correct, then the legislation is invalid. The Parliaments of the Commonwealth, the States and the Territories cannot, by co-operation, amend the Constitution. The Constitution, in s 77(iii), provides that the Parliament of the Commonwealth may invest a court of a State with federal jurisdiction. What is presently the subject of challenge is the reverse process. Its convenience has been determined by the Parliaments. The duty of the Court is to determine its legality. The “autochthonous expedient of conferring federal jurisdiction on State courts” is sustained, not by its expediency, but by a specific grant of legislative power. The question is whether the reverse process is effective without such an express grant of power.[6]
[5](1999) 198 CLR 511.
[6]Ibid 540 [2].
In his judgment, McHugh J said:
How then can a State Parliament invest a federal court with a jurisdiction which the Parliament of the Commonwealth, which has created the court, cannot invest in that court? Co-operative federalism is the chief answer given by the parties and the interveners supporting the validity of the legislation. But co-operative federalism is not a constitutional term. It is a political slogan, not a criterion of constitutional validity or power. It records a result reached as the result of a State and the Commonwealth legislating within the powers conferred on them by the Constitution. Behind its invocation in the present cases lies a good deal of loose thinking.[7]
[7]Ibid 556 [54].
Neither passage assists Dr Peers in this case. In Re Wakim, the High Court held that the Constitution did not permit either the Commonwealth or the States to invest State jurisdiction in federal courts. It did so because ss 75 and 76 of the Constitution limited the matters in respect of which jurisdiction could be conferred on a federal court. Re Wakim stands as authority for the proposition that a cooperative arrangement is not a guarantee of constitutional validity and cannot stand in the face of a direct constitutional limitation on the power of both the Commonwealth and the States to achieve the particular object of the cooperative scheme.
Nothing in that case dictates the result in this case.
It is one thing to accept that the invocation of a cooperative scheme is not a guarantee of constitutionality. It is quite another to suggest that in every instance a cooperative arrangement between the States will be unconstitutional. It is apparent that none of the judgments in Re Wakim went so far.[8]
[8]Ibid 576–577 [113] (Gummow and Hayne JJ in whom Gleeson CJ and Gaudron J generally agreed), 556 [55] (McHugh J).
Finally, Dr Peers contends that covering clause 5 of the Commonwealth of Australia Constitution Act 1900 (Imp) (‘Constitution Act’) and ss 106 and 109 of the Constitution give the Commonwealth ‘supremacy’ and that together they create a limitation on the power of the States to enact a national cooperative scheme. Nothing in those provisions gives rise to the limitation on the power of the States for which she contends.
Covering clause 5 relevantly provides that the Constitution Act (which includes the Constitution) and Commonwealth laws are binding on the people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State. Insofar as the clause refers to Commonwealth laws it provides no assistance to Dr Peers’ argument because here there are none. Insofar as the clause refers to the Constitution Act it simply begs the question where in the Constitution one finds the limitation on the powers of the States to enact cooperative legislation.
Section 106 in effect preserves the constitutional authority of the States subject to the Constitution. It provides no implied limitation on the power of the States – if that is to be found it is to be found elsewhere.
Section 109 provides that Commonwealth laws prevail over State laws to the extent of any consistency. Section 109 has no work to do here because there is no relevant Commonwealth law.
Nothing in the text of the Constitution manifests the intention to limit the powers of the States to enact a cooperative scheme of the kind under consideration in this case. Nothing in the structure of the Constitution makes such an implied limitation logically or practically necessary for the preservation of the integrity of that structure.[9] There is no basis to hold that the National Law is invalid.
[9]Zurich Insurance Company Ltd v Koper (2023) 277 CLR 164, 175 [26]–[28] (Kiefel CJ, Gageler, Gleeson and Jagot JJ).
In short, Dr Peers’ argument fails.
Has the Queensland Parliament purported to enact Victorian legislation?
Dr Peers also contends that the National Law is invalid because it constitutes an attempt by the Parliament of Queensland to enact legislation affecting the regulation of medical practitioners in Victoria. There is nothing in this argument.
The National Law applies in Victoria because the Victorian Parliament has enacted the Act. Whether the Victorian Parliament adopted the National Law as a law of Victoria and the extent to which it adopted provisions of that law was a matter entirely up to the Parliament of Victoria. The National Law applies in Victoria as a law of Victoria because the Parliament of Victoria said it could. No issues of extraterritoriality of the Queensland Act arise.
Is Martin Fletcher a ‘State administrative officer’?
Dr Peers contended that charges could only be laid against her by an ‘administrative officer of the State of Victoria’ and that it had not been proved that Mr Fletcher was such a person. This argument also fails.
First, nothing in the CPA requires an informant to be an ‘administrative officer of the State of Victoria’. Section 3 defines an informant as a person who commences a criminal proceeding in the Magistrates’ Court. Section 5 provides that a proceeding is commenced by filing a charge sheet in accordance with s 6. This is exactly what Mr Fletcher did.
Dr Peers points to s 14 of the CPA which provides power to a public official in the performance of their duty to issue a summons after signing a charge sheet. That section does not limit who may act as an informant and has no application in this case because a Registrar of the Magistrates’ Court issued the summons.
Secondly, the National Law contains no express limitation on who may initiate proceedings for an offence. Mr Fletcher’s initiation of criminal proceedings plainly falls within the general ambit of ‘anything else necessary or convenient for the effective and efficient operation of the national registration and accreditation scheme’.
Thirdly, Dr Peers was initially reluctant to provide any specific content to the phrase ‘administrative officer of the State of Victoria’. When pressed, her first suggestion was that it meant a public officer who heads a department – that cannot be right as it would preclude, for example, police officers and inspectors under occupational health and safety legislation from bringing prosecutions. Ultimately, insofar as Dr Peers was able to provide any content to the phrase ‘administrative officer of the State of Victoria’, it appears that what she meant was a person who held office by reason of the provisions of a Victorian Act. As is evident from the foregoing, Mr Fletcher holds the office of Chief Executive Officer of AHPRA by reason of the provisions of a Victorian Act. It does not matter that he might also hold that office pursuant to the provisions of other State Acts.[10]
[10]R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535, 552–553 (Gibbs CJ); R v Hughes (2000) 202 CLR 535, 549–552 [18]–[29] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 576–579 [100]–[106] (Kirby J).
Other matters
Dr Peers, in the course of the proceedings, made a series of increasingly intemperate demands that Mr Fletcher verify on oath and ‘at risk of perjury’ whether he was an ‘administrative officer of the State of Victoria’ or ‘an administrative officer of the Commonwealth’ or ‘an administrative officer of some other State’. In circumstances where Dr Peers was unable or unwilling to give any particular content to those phrases, it might be thought unrealistic to expect someone else to give evidence as to whether they fell within one or the other. In any event, for the reasons set out above, it is plain that Mr Fletcher holds his position as Chief Executive Officer of AHPRA as a result of a constitutionally valid enactment of the Victorian Parliament. There is no need for evidence in this proceeding to verify that proposition.
Finally, in this respect, Dr Peers made a series of allegations regarding the conduct of Mr Fletcher in these proceedings. Those allegations were all based on the assertion that somehow or other Mr Fletcher had acted improperly in failing to cooperate with Dr Peers’ request that he give evidence on oath as to whether he was an ‘administrative officer of the State of Victoria’. Again, for the reasons that are outlined above, there is nothing in the allegations of Dr Peers in this respect.
Conclusion
Dr Peers has failed in her challenge to the validity of the National Law and in her objection to Mr Fletcher bringing the charges against her. Her application should be dismissed with costs.
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