Qasim and Decision Maker (Practice and procedure) - [2025] ARTA 1412

Qasim and Decision Maker (Practice and procedure) [2025] ARTA 1412 (12 August 2025)
Applicant/s:  Shaheen Qasim
Respondent:  Decision Maker
Tribunal Number:                2025/1577

Tribunal:GM J Ross
Place:Canberra
Date:12 August 2025

Decision:Under s 97 of the Administrative Review Tribunal Act 2024 the application is dismissed.

....................[SGD]............................
General Member J Ross
Catchwords
Decision not reviewable decision – dismissal under s 97 Administrative Review Tribunal Act 2024 – modification of the FOI Act to the National Registration and Accreditation Scheme – application dismissed
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth) s 12, s 97
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) s 4
Civil and Administrative Tribunal Act 2013 (NSW)
Freedom of Information Act 1982 (Cth) s 24A, s 57A, s 89N
Health Practitioner Regulation National Law Act 2009 s 215
Health Practitioner Regulation National Law (NSW) No 86a 2009
Health Practitioner Regulation National Law Regulation 2018 (NSW) r 3, r 17
Statement of Reasons

The Applicant in this matter, Ms Shaheen Qasim, (Applicant or Ms Qasim) applied to the Tribunal for a review of a decision by the National Health Practitioner Privacy Commissioner not to undertake a review of the Australian Health Practitioner Regulation Agency’s (Ahpra) internal review decision dated 21 October 2024.
On 29 August 2024, the Applicant made a freedom of information (FOI) request to Ahpra for information relating to the suspension of her registration as a health practitioner.
On 16 September 2024, Ahpra notified the Applicant of its decision to refuse access to her request under s 24A(1) of the Freedom of Information Act 1982 (Cth) (FOI Act) on the basis that the documents sought either could not be found or do not exist.
On 16 September 2024, the Applicant applied for an internal review of Ahpra’s decision.
On 21 October 2024, Ahpra advised the Applicant of its internal review decision to affirm its original decision for the same reasons set out in its decision dated 16 September 2024.
On 20 November 2024, the Applicant applied to the National Health Practitioner Privacy Commissioner (Commissioner) for a review of Ahpra’s internal review.
On 15 January 2025, the Commissioner advised the Applicant of their decision not to exercise their discretion under s 54W(a)(i) of the FOI Act to undertake a review of Ahpra’s internal review decision date 21 October 2024 on the basis that the application was misconceived and lacked substance.[1]
[1] Decision of National Health Practitioner Privacy Commissioner, page 2.
The reasons provided in the Commissioner’s decision were that the documents the Applicant was seeking access to, namely the reasons for suspending her registration, could not be found or do not exist. This is because the decision to suspend the Applicant’s registration on 22 December 2010 was made by the Medical Council of New South Wales.
The Applicant was advised that the Medical Council of New South Wales is the appropriate body to contact to seek access to documents relating to the suspension of her registration.
The Applicant was further advised that if she was not satisfied with the Commissioner’s decision not to commence a review she should apply to the relevant state or territory administrative review tribunal for a review of Ahpra’s decision dated 21 October 2024.
The Applicant did not do this and instead applied to this Tribunal.
CONSIDERATION
The Tribunal does not have a general power to review decisions. It can only review a decision if an Act or other legislative instrument states that the Tribunal can review the decision.
The Health Practitioner Regulation National Law Act 2009 (National Law) as in force in each state and territory establishes the National Registration and Accreditation Scheme (National Scheme) to provide for the regulation of health professionals.[2]
[2] Ahpra and National Boards, Freedom of Information, Australian Health Practitioner Regulation Agency - Freedom of Information, accessed 16 July 2025.
The National Law establishes the Ahpra, the Ahpra Board and National Boards.[3]
[3] Ibid.
Ahpra manages the FOI functions on behalf of the CEO of Ahpra and the Chairpersons of the Ahpra Board and each National Board under authorised decision-making arrangements within the meaning of the FOI Act.[4]
[4] Ibid.
Section 215 of the National Law provides that the FOI Act applies as a law of a participating jurisdiction for the purposes of the National Scheme.
Section 215 (2) of the National Law provides:
For the purposes of subsection (1), the FOI Act applies—
(a) as if a reference to the Office of the Australian Information Commissioner were a reference to the Office of the National Health Practitioner Privacy Commissioner; and
(b) as if a reference to the Information Commissioner were a reference to the National Health Practitioner Privacy Commissioner; and
(c) with any other modifications made by the regulations.
Part 4 of the Health Practitioner Regulation National Law Regulation 2018 (NSW) (NSW Regulations) sets out the modifications of the FOI Act as it applies in that jurisdiction.
Regulation 17 of the NSW Regulations contains modifications relating to the Tribunal. It modifies the FOI Act to provide that a reference to the ‘Administrative Appeals Tribunal’ was a reference to a relevant tribunal and that a provision of the ‘Administrative Appeals Tribunal Act 1975 (Cth)’ does not apply.
Regulation 3 defines ‘relevant tribunal’ as relevantly for this matter as the Civil and Administrative Tribunal of New South Wales established under the Civil and Administrative Tribunal Act 2013 (NSW) of New South Wales.
I find that the Commissioner was correct to conclude that the correct body to apply for a review of Ahpra’s decision dated 21 October 2024 is the Civil and Administrative Tribunal of New South Wales (NCAT).
In coming to this conclusion, I was required to consider the impact of the failure to update the references in the NSW Regulations to the Administrative Review Tribunal (ART).
Section 4 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Transitional Provisions Act) provides that on or after the commencement of the Administrative Review Tribunal Act 2024 (ART Act), if another Act refers to the Administrative Appeals Tribunal Act 1975; a provision of that Act; or the Administrative Appeals Tribunal; or the Registrar of the Administrative Appeals Tribunal, the reference is taken, on and after that commencement, to be a reference to the ART Act; an equivalent, or nearly equivalent, provision of that Act; and the ART.
The question is whether s 4 of the Transitional Provisions Act can be construed as capturing state and territory Acts. There is a real doubt about the ability for Commonwealth legislation to modify the interpretation of an Act passed by a state or territory Parliament without making an intention to expressly do this. Section 4 does not contain an expressed intention. Further, by applying the Acts Interpretation Act 1901 (Cth), where references to ‘an Act’ are clearly intended to capture Commonwealth Acts only, the preferable position is that the use of the term ‘another Act’ in s 4 would be read as referring only to another Commonwealth Act. On that basis, the reference to the Tribunal in the NSW Regulations has not been updated.
However, the Tribunal’s jurisdiction is only engaged if there is a ‘reviewable decision’ as defined under the ART Act. Section 12 provides that a reviewable decision is one where an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision. This reference is likewise limited to only Commonwealth Acts or legislative instruments and would not extend to circumstances where a failure to update a reference to the Administrative Appeals Tribunal would confer jurisdiction on the ART in circumstances where this was not intended by the relevant state or territory legislation.
The Tribunal is only conferred with review jurisdiction under s 57A or s 89N of the FOI Act.
Section 57A provides that an application may be made to the Tribunal for review of a decision of the Information Commissioner (IC) under s 55K on an IC review; and if the IC makes a decision under s 54W(b) – the IC reviewable decision in relation to which the IC makes the decision. Section 89N provides that an application may be made to the Tribunal for review of a decision under s 89K in relation to the making of a vexatious applicant declaration.
Decision
As such, the avenues for review at the Tribunal are quite narrow. I therefore dismiss the application under s 97 of the Administrative Review Tribunal Act 2024 as I am satisfied that the decision is not reviewable by the Tribunal.

Date(s) of hearing: 1 July 2025

Applicant: In person