Tan v Medical Board of Australia - [2023] ACAT 29

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

TAN v MEDICAL BOARD OF AUSTRALIA [2023] ACAT 29

OR 12/2022
Catchwords: OCCUPATIONAL DISCIPLINE – medical practitioner – medical practitioner with registration subject to conditions – application for removal of conditions – referral of applicant for assessment – failure to attend assessment – deemed withdrawal of application for removal of conditions – whether tribunal has jurisdiction to review the referral for assessment – whether the tribunal has jurisdiction to review the deemed withdrawal of application for removal of conditions
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 12, 32, 48
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 10
Health Practitioner Regulation National Law (ACT) ss 3, 4, 6, 7, 9, 14, 80, 109, 125, 199, 201, 203
Health Practitioner Regulation National Law (ACT) Act 2020 ss 8, 9
Human Rights Act 2004 ss 10, 28, 30
Legislation Act 2001 ss 139, 140, Dictionary

Cases cited:Cox v Journeaux (1935) 52 CLR 713
Pham v Dental Health Board of Australia [2017] VCAT 1178
P v Registrar of Firearms [2018] ACAT 20
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Macks; ex parte Saint (2000) 204 CLR 158
Yasmin v Attorney-General of the Commonwealth of Australia [2015] FCAFC 145

Tribunal:Senior Member R Orr KC
Senior Member Dr Peter Norrie

Date of Orders:  9 May 2023
Date of Reasons for Decision:      9 May 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 12/2022
BETWEEN:

KOK THYE TAN
Applicant

AND:
MEDICAL BOARD OF AUSTRALIA
Respondent

TRIBUNAL:Senior Member R Orr KC
Senior Member Dr Peter Norrie

DATE:9 May 2023

ORDER

The Tribunal orders that:

The amended application of the applicant dated 25 October 2022 is dismissed.
There is no order as to costs.

………………………………..

Senior Member R Orr KC
For and on the behalf of the Tribunal

REASONS FOR DECISION

These proceedings concern an amended application for review of decisions under the Health Practitioner Regulation National Law (ACT)[1] dated 25 October 2022 (amended application) by Dr Kok Thye Tan (applicant or Dr Tan), whose registration as a medical practitioner is subject to conditions, against the Medical Board of Australia (respondent or Board).
[1] The Health Practitioner Regulation National Law (ACT) Act 2020 applies the Health Practitioner Regulation National Law Act 2009 (Qld) with some amendments as a law of the ACT, to be referred to as the Health Practitioner Regulation National Law (ACT)
Dr Tan has been registered as a medical practitioner in Australia since 1973. In 2018, some conditions were imposed on Dr Tan’s registration, which were amended in 2019, and in 2020 by a consent determination of the tribunal.
On 24 January 2022 Dr Tan wrote to the Board seeking removal of all the conditions. An email dated 18 July 2022 to Dr Tan indicated that the Board had decided that further information was required to determine his application, and that the Board required Dr Tan to undergo an independent health assessment under section 80 of the Health Practitioner Regulation National Law (ACT) (18 July 2022 email). Dr Tan did not attend for that assessment. A letter dated 21 October 2022 to Dr Tan indicated that as he had refused to attend the medical assessment, under section 80 the Board considered his application for removal of his conditions to be withdrawn (21 October 2022 letter). The amended application challenges what are said to be the decisions set out in the 18 July 2022 email and the 21 October 2022 letter.
By application for interim or other orders dated 9 November 2022 (interim application), the respondent sought orders that the amended application be dismissed for want of jurisdiction. It was argued this could be done generally, or under section 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).[2] This decision addresses the issues raised by the interim application.
[2] Transcript of proceedings, 13 December 2022, page 5; Burke v Work Health and Safety Commissioner [2022] ACAT 77
Section 199 of the Health Practitioner Regulation National Law (ACT) provides that a person who is subject to a range of decisions (appellable decision) may appeal the decision to the appropriate responsible tribunal, which is the ACAT.[3] This relevantly includes a decision “to refuse to change or remove a condition imposed on the person’s registration”.[4]
[3] Section 8 of the Health Practitioner Regulation National Law (ACT) Act 2020
[4] Section 199(1)(f)
Section 12 of the ACAT Act provides that in some circumstances delay in making a decision is deemed a decision to refuse to make the decision which can be appealed to the tribunal (deemed refusal).

Summary of the decision of this Tribunal

The decision to refer the applicant for an assessment set out in the 18 July 2022 email is not on its face an appellable decision under section 109 of the Health Practitioner Regulation National Law (ACT), since it is not a decision “to refuse to change or remove a condition imposed on the person’s registration”.
The applicant argued that the Board could not refer him for an assessment, or that there was refusal to remove the conditions because of that referral, or deemed refusal, for a number of reasons. However, contrary to the applicant’s arguments, the notice requirements in sections 80(1)(d) and 80(4) were met, the referral could be made even though the applicant was already registered as a medical practitioner because of section 125(4), and the requirement in section 125(5) that the Board must decide to grant the application or refuse to grant the application did not prevent the referral, or make the referral a refusal, or result in a deemed refusal.
The operation of section 80(5), through section 125(4), that the applicant is taken to have withdrawn the application if the applicant does not comply with a requirement for an assessment, referred to in the 21 October 2022 letter, is not on its face a decision of the Board, or an appellable decision. Section 80(5) cannot create a deemed refusal. The requirement in section 125(5) that the Board must decide to grant the application or refuse to grant the application did not prevent the operation of section 80(5), or make its operation a refusal, or a deemed refusal.
Therefore, the amended application of the respondent dated 28 October 2022 is dismissed. There is no order as to costs.

Tribunal proceedings

The amended application contains details of the claim, and relevant documents. The applicant also provided an outline of submissions in response to the interim application dated 5 December 2022 (applicant’s submissions).
The respondent provided an outline of submissions on jurisdiction dated 8 November 2021 (respondent’s submissions).
A hearing was held on 13 December 2022 at which both parties were represented.

Relevant provisions

In summary, section 125(1) of the Health Practitioner Regulation National Law (ACT) provides that a registered health practitioner may apply to change or remove a condition imposed on the practitioner’s registration, which is what Dr Tan has done. Section 125(4) provides that for the purpose of deciding the application, the Board may exercise a power under section 80 of the Act. Section 80(1)((d) states that the Board may “by written notice given to the applicant, require the applicant to undergo an examination or assessment”. Section 80(5) provides that the applicant “is taken to have withdrawn the application if … the applicant does not comply with a requirement” to undergo an assessment. Section 125(5) provides that the “Board must decide to grant the application or refuse to grant the application”.

Decision 1 – Referral for assessment and the 18 July 2022 email

The 18 July 2022 email to Dr Tan’s lawyer stated:
The application for review was considered by the Medical Board of Australia (the Board) on 26 April 2022, at which time the Board determined that further information was required in order to determine whether to grant or refuse the application.
The email then stated that in accordance with section 125(4), the Board required Dr Tan to undergo an independent neuropsychological assessment. The email said that a notice of decision had been sent to Dr Tan on 2 May. The email stated that the health assessment had been organised but noted that a letter dated 8 July 2022 indicated Dr Tan would not attend.
The email then stated:
As per section 80(5) of the National Law, should Dr Tan not comply with the requirement to undertake the health assessment process as required by the Board, the Board may consider that Dr Tan’s application for review is withdrawn and the conditions as currently imposed will remain in force.
The respondent argues that this email does not amount to a decision “to refuse to change or remove a condition imposed on the person’s registration” and therefore the tribunal does not have jurisdiction.[5] The applicant has put forward several arguments as to why the email gives rise to jurisdiction in the tribunal.[6]
Is there an appellable decision?
[5] Respondent’s submissions at [15]-[25]
[6] Applicant’s submissions at [12]-[26]
As noted, section 199 of the Health Practitioner Regulation National Law (ACT) provides for the jurisdiction of the tribunal, and relevantly this includes that a person who is the subject of a decision “to refuse to change or remove a condition imposed on the person’s registration” may appeal against the decision. On its face the 18 July 2022 email does not refuse to change or remove a condition. Rather it refers the applicant for an assessment under section 80(1)(d) as it applies by operation of section 125(4). Such a decision is not on its face an appellable decision under section 199 of the Health Practitioner Regulation National Law (ACT).
This was the position held by the Victorian Civil and Administrative Tribunal in Pham v Dental Health Board of Australia[7] (Pham). This case concerned, in brief summary, an application for registration as a dentist which was referred for an assessment under section 80(1)(d) of the Victorian equivalent of the Health Practitioner Regulation National Law (ACT). The Victorian tribunal stated in part:
[7] [2017] VCAT 1178
38.     … this Tribunal only has the jurisdiction conferred on it by the National Law. It does not have any inherent power to conduct a judicial review of the Board’s decisions. ...We have reached the view that there is in fact no appellable decision before the Tribunal.
…
43.     … the [relevant] decision … is a decision to require a performance assessment. That decision is not an appellable decision.
42.     As we have previously indicated, the Act provides that if an applicant does not comply with an assessment requirement then her application is taken to be withdrawn.
43.     This mechanism seems to us to accord with common sense as there is effectively no aspect of the Board’s decision to require a performance assessment which can be reviewed by this Tribunal under section 199 of the National Law.
44.     We do not agree that this leaves Pham with no remedy.
45.     Apart from the remedies which she would have if she instituted proceedings for judicial review in the courts, she has a simple way of bringing this matter back to this Tribunal on its merits.
46.     She may simply undergo the performance assessment, and then challenge the Board if it fails to make a decision following the completion of that performance assessment, or alternatively challenge any negative decision made by the Board on her registration application following the performance assessment.
47.     It is Pham’s refusal to undergo the performance assessment which creates the difficulty in this case. The National Law does not allow for a review of the requirement to undertake a performance assessment. This is abundantly clear from the terms of the legislation, and there is no scope for reading down or ignoring the effect of section 80(5) as Pham’s solicitor has pressed us to do.[8]
[8] [2017] VCAT 1178 at [38] and [41-47]
However, the applicant has put forward several arguments as to why the 18 July 2022 email gives rise to jurisdiction.
Were the notice requirements met?
First, without prior notice to the respondent, the applicant argued at the hearing that the requirements for a notice under section 80 were not met. These requirements are set out in section 80(1)(d), which provides that the notice must require the applicant to undergo an assessment within a reasonable time stated in the notice, and at a reasonable place, and section 80(4), which provides that a notice must state the reason for the assessment, the name and qualification of the person appointed, and the place where, and the day and time at which, the assessment is to be conducted. The applicant suggested that these requirements were in some regard not met, but did not specify which were not met.[9]
[9] Transcript of proceedings, 13 December 2022, page 25
The respondent argued that the requirements were met by three pieces of correspondence. A letter dated 2 May 2022 set out the detailed reasons for the assessment, as required by section 80(4)(a). We think this is correct.
The email of 12 July 2022 set out the name of the proposed assessor as required by section 80(4)(b).
The 18 July 2022 email restated the reasons for the assessment, sets out the place (by telehealth), the day (19 July 2022), and the time (10:00 am), of the assessment, as required by section 80(4)(c). That email also stated that the assessment would be with a clinical neuropsychologist, thereby setting out the qualifications of the person to conduct the assessment, as required by section 80(4)(b). The email also indicated that the Board was willing to reschedule the health assessment to a later date.
The respondent argued that there was no requirement as to the form of the notice, nor a requirement that it be in a single document. We agree.
More generally, we think there was therefore correspondence between the parties in an attempt to arrange a suitable appointment. It is true that the email of 18 July was sent only a day before the scheduled appointment, but the email made clear that the appointment could be rescheduled. Further, the letter from Ken Cush and Associates on behalf of Dr Tan dated 8 July 2022 had stated that the direction to Dr Tan to attend an assessment was “unreasonable and unsustainable” and for that reason he would not be attending the assessment.
On this basis, we do not think that there was a failure to comply with the notice requirements.
Notwithstanding this, we do note one related procedural issue. It does seem to us that it would have been appropriate for the applicant and the Board to have entered into discussions about how to address his application, with a view, if possible, to finding a process which met the concerns of both parties. The applicant has been a medical practitioner for many years, and respect for his position would suggest such a discussion was appropriate and may have avoided resorting to adversarial positions and processes too quickly.[10]
Can notice be given where the applicant is already a registered practitioner?
[10] Transcript of proceedings, 13 December 2022, page 40
The applicant also argued that section 125(4) cannot have the deeming effect contended for because that would mean that “the … application is capable of being ‘converted’ or ‘changed’ from an application pursuant to section 125 [to remove conditions on registration] to an application for [initial] registration under Division 6 of the National Law”.[11]
Text
[11] Applicant’s submissions at [14]
We do not think that section 125(4) changes an application under section 125(1) into an application for registration. Rather, section 125(4) is simply doing what it clearly states, making the power available under section 80 in relation to an application for registration also available for determination of an application under section 125(1) for removal of conditions. A section 125(1) application is for this purpose to be treated as if it were an application for registration, which it is clearly not. This is a well-accepted drafting style which avoids having to set out again the provisions in section 80 in relation to section 125. As the respondent noted, Justice McHugh in Re Macks; ex parte Saint[12] stated:
‘as if’ always introduces a fictional or hypothetical contrast. It deems something to be what it is not or compare it with what it is not.
Context
[12] (2000) 204 CLR 158 at [115]
Section 125(4) sits within the context of Part 7 concerning regulation of health practitioners, and then subdivision 2, “Review of conditions and undertakings”, and then the heading for section 125, “Changing or removing conditions or undertakings on application by registered health practitioner or student”. These all suggest that section 125(4) should enable investigations in relation changing or removing conditions which regulate existing health practitioners.[13]
Purpose
[13] Section 9 of the Health Practitioner Regulation National Law (ACT) Act 2020 excludes the operation of the Legislation Act 2001 (Legislation Act) to the Health Practitioner Regulation National Law (ACT). However, we note that section 140 of the Legislation Act provides that in working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole, a provision which generally reflects the common law.
The purpose of section 125,[14] which flows from its terms and context, is to allow the provisions in section 80, which in their terms are limited to applications for registration, to also be available for an application in relation to removal of conditions. Section 3 also sets out objectives for the regime, which includes to provide “for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered”. This focusses on registration, which may support the argument of the applicant that regulation of health practitioners already registered is different, but we do not think it suggests that the regime does not have the purpose of ensuring the protection of the public by ensuring registered practitioners continue to meet relevant criteria.
[14] Section 6 of the Health Practitioner Regulation National Law (ACT) provides that Schedule 7 applies in relation to this Law, and Schedule 7, section 7 provides that in “the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation”; we note also that although it does not apply here, section 139(1) of the Legislation Act provides that in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
This approach is confirmed by the guiding principles in section 3A which includes:
(1) The main guiding principle of the national registration and accreditation scheme is that the following are paramount—
(a)protection of the public;
(b) public confidence in the safety of services provided by registered health practitioners and students.
In our view this makes clear that the ongoing protection of the public and public confidence in the services provided even after registration is “the main guiding principle” of the regulatory regime, including part 7, subdivision 2, and section 125.
Section 4 then provides that an entity, which includes the respondent, that has functions under this Law, which includes the functions under section 125, is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A.
For these reasons we think that section 125(4) with section 80 allow for the Board to seek an assessment in relation to an application to remove conditions, even though the applicant is already a registered medical practitioner.
Other related arguments of the applicant

The applicant also referred to the opening words of section 125(4), which are “For the purposes of deciding the application”, and argued that these words indicate that the power in section 80 can only be exercised within the context of the application under section 125.[15] We agree.
[15] Applicant’s submissions at [16]-[18]
The applicant then says that section 80(5) “is simply not ‘a power’ but rather a machinery provision to address an application for registration where such an application is made within Division 6”. We do not agree with this.
Section 125(4) refers to “a power under section 80”. On any view, the ability of the Board to “require the applicant to undergo an examination or assessment” is a power. It is the “ability to do or act; [the] capability of doing or effecting something”.[16] The heading to section 80 describes its contents as powers. Section 125(4) is referring to nothing and is otiose if it is not referring to the ability to take the actions set out in section 80(1). Schedule 7, section 12 of the Health Practitioner Regulation National Law (ACT) provides that power includes authority,[17] and section 80(1) provides the authority to do the various things listed..
[16] Macquarie Dictionary online
[17] Part 1 of the Dictionary to the Legislation Act also defines power to include authority
Suggesting that section 80 only applies to applications for registration ignores the terms, context and purpose of section 125(4) discussed above.
The applicant gives section 80 the label of a machinery provision. In oral submissions counsel for the applicant stated that while it is the right of the Board to exercise the power, “it is not the right of the Board to then manage the application through machinery provisions in section 80.”[18] Simply giving section 80 the label of a machinery provision does not mean it can be ignored or downplayed. It is necessary to look at the text, with the context and purpose, and give the section the operation this provides for.
[18] Transcript of proceedings, 13 December 2022, page 28
The applicant says the decision in Pham about the operation of section is not relevant because it concerned an application for registration, not an application for removal of conditions.[19] However, Pham deals with the same provision at issue here, and we think it is a relevant and useful analysis.
Role of obligation in section 125(5) to grant or refuse application
[19] Transcript of proceedings, 13 December 2022, pages 32-33
The applicant places particular emphasis on section 125(5) which provides that the “Board must decide to grant the application or refuse the application”. He argued that to read sections 125(4) and 80 in the fashion contended for by the respondent would “lead to statutory incoherence when considered against the positive obligation of the respondent to grant or refuse the application as required by section 125(5) of the National Law”.[20] We do not agree.
[20] Applicant’s submissions at [21]
It is true that section 125(5) states that the Board must decide, and that this indicates that the function is required to be exercised.[21] However, what this means needs to have regard to the other provisions in the Act and its purpose. Section 125(4) immediately precedes section 125(5). In our view, this means that the requirement in section 125(5) must take into account the process allowed for in section 125(4), as discussed above. Also, there will be some circumstances where it is clear that the Board need not decide, for example where the practitioner withdraws their application, or dies.
[21] Health Practitioner Regulation National Law (ACT), schedule 7, section 14; see also Legislation Act, section 146(2), although it does not apply here
In our view, where the Board engages in the procedure provided for in sections 125(4) and 80, this will necessarily delay the obligation on it to make a decision. The Board needs to make the decision on the best available evidence. This is appropriate given that the ongoing protection of the public and public confidence in the services provided even after registration is the main guiding principle. This also protects the interests of the practitioner, and allows the scheme to operate in a transparent, effective and fair way.[22]
[22] Section 3A(2)(b) of the Health Practitioner Regulation National Law (ACT)
The fact that there are other ways for the respondent to require an assessment is no basis for reading down the terms of section 125(4). That the Board is responding to an application by the applicant is also no basis for reading down the terms of section 125(4).[23]
Is there a deemed decision under section 12 of the ACAT Act?
[23] Applicant’s submissions at [23]
The applicant referred to the operation of section 12 of the ACAT Act. This provides as follows:
12 When no action taken to be decision
(1) This section applies if—
(a)an entity (the decision-maker) is required or allowed to do something under an authorising law; and
(b)the decision-maker has not done the thing within the period for doing the thing under the authorising law or, if no period is stated under the authorising law, a reasonable period for doing the thing; and
(c)the authorising law provides that a person may apply to the tribunal for review of a decision under the authorising law in relation to doing the thing.
(2) The decision-maker is taken to have decided, at the end of the period for doing the thing, not to do the thing.
The applicant argued that the Board is required to make a decision under section 125(5), and the failure to do so has resulted in a deemed refusal under section 12 of the ACAT Act, which enables the applicant to seek review in the tribunal.
It is true that the Board is required and allowed to make a decision under section 125(5), when the occasion arrives to do so, but this must take into account the referral under sections 125(4) and 80, and the operation of section 80(5) (discussed following). There is no period specified for doing so. Therefore, it is necessary to show that the Board has not done the thing within a reasonable period. Again, this reasonable period must take into account the referral under sections 125(4) and 80, and the operation of section 80(5). Given the operation of these sections we do not think that the requirements in section 12(1)(a) and (b) of the ACAT Act are met, and that there has been any deemed refusal.
Conclusion on referral for assessment and the 18 July 2022 email
For these reasons we do not think that the Tribunal has jurisdiction in relation to the decision in the 18 July 2022 email to refer the applicant for an assessment.

Decision 2 – Withdrawal of application and 21 October 2022 letter

The 21 October 2022 letter set out the relevant decisions of the Board. One of these was:
Noted that in accordance with section 80(5) of the National Law, you are taken to have withdrawn the application if, within the stated time, the applicant does not comply with the requirement to undergo the health assessment.
The letter also set out the background and process of the Board and stated that there is currently very little evidence that is recent and probative in relation to the application for removal of the conditions. It was then said that:
In the absence of this probative evidence and having regard to the fact that the Practitioner has refused to attend the medical assessment under s80 of the National Law, the Board considers that his application for removal of his conditions to be withdrawn.
It also stated that he could submit a new application.
The basis for this statement was section 80(5) which provides:
(5) The applicant is taken to have withdrawn the application if, within the stated time, the applicant does not comply with a requirement under subsection (1).
The respondent argued that there is no relevant decision of the Board here. The application was withdrawn simply by operation of section 80(5) through section 125(4).[24]
[24] Respondent’s submissions at [26]-[44]
The applicant argued that this result is contrary to section 125(5).[25]
Approach to interpretation of section 125(5)
[25] Applicant’s submissions at [27]-[33]
In our view, as noted above, section 125(5) operates within the context of section 125, and the balance of the Act, and must be read in that context. Courts and tribunals have routinely had regard to the High Court statements in Project Blue Sky Inc v Australian Broadcasting Authority:
69.    The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. …
70.    A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions…
71.    Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.[26]
[26] (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ, footnotes omitted
Here section 125(5) must be read together with, and consistently with, section 125(4) and section 80. This is particularly so when section 125(4) immediately precedes section 125(5), and the text of section 125(5) provides no basis for it wiping out the operation of section 125(4). Section 125(4) talks of the “power under section 80”, “as if the application were an application for registration”. Section 80(5) is an aspect of the power in section 80(1)(d). Reading it as if the application for review of conditions were an application for registration, even though it is not, it provides that the applicant is taken to have withdrawn the application for review of conditions. The applicant’s argument would leave section 125(4) and section 80(5) as superfluous with nothing to do in these circumstances. This result is to be resisted.
Is the outcome harsh and unfair?
The applicant argues that in effect the decision of the Board to require the applicant to undergo an assessment is in these circumstances in effect a decision to refuse to grant the application. It should therefore be reviewable. Without this review, the outcome is harsh and unfair to the applicant. But this is the result of having regard to the terms of the legislation, in light of its context and purpose. General concepts of harshness or unfairness cannot override these. It seems to us that this approach is consistent with the main guiding principle of protection of the public and public confidence in the safety of services provided by registered health practitioners. Conditions have been imposed on the applicant’s registration. These can be removed, but the Board needs relevant probative evidence to do so and has taken steps to obtain this. The applicant has not co‑operated, and as the tribunal in Pham noted, it is the refusal of the applicant to undergo the performance assessment which creates the difficulty.
Conclusion on withdrawal and 21 October 2022 letter
For these reasons we do not think that the tribunal has jurisdiction in relation to the statement concerning withdrawal in the 21 October 2022 letter which simply sets out the effect of section 80(5).

Other issues

Operation of time limit for making application for registration decision

The applicant also referred to the time limit in section 85 of the Health Practitioner Regulation National Law (ACT) which provides:
If a National Board fails to decide an application for registration within 90 days after its receipt, or the longer period agreed between the Board and the applicant, the failure by the Board to make a decision is taken to be a decision to refuse to register the applicant.[27]
[27] Applicant’s submissions at [34]-[38]
There is no similar provision in relation to applications for the removal of conditions. We do not think that section 125, or any other section, picks up this provision and applies it to applications for the removal of conditions.
Other cases
The applicant referred to the decision in Cox v Journeaux[28] where it was said: “The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed”.[29] That case, however, concerned the inherent jurisdiction of the court to stay an action as vexatious. This is different to here where there is a statutory regime providing for statutory review by the tribunal, which requires interpretation of the legislative grant of jurisdiction in section 199 of the Health Practitioner Regulation National Law (ACT). Even on the broadest of views, this section does not grant jurisdiction in this case.
[28] (1935) 52 CLR 713 at page 720, Dixon J
[29] Transcript of proceedings, 13 December 2022, pages 31-32; the respondent replies to this at page 46
The applicant also referred to the decision of Yasmin v Attorney-General of the Commonwealth of Australia.[30] This case concerned legislation in relation to a petition for the exercise of the prerogative of mercy, which the Attorney-General may refer to the Court of Appeal. As the court pointed out, this process enabled the correction of miscarriages of justice and increased the integrity of the criminal justice system. The court recognised at [89] that “whether a discretionary power carries with it a duty … is heavily context-dependent”. Approaches taken in different statutory contexts are of little direct assistance. Here there are very different statutory provisions in a very different context implementing a very different policy.
Human Rights Act
[30] [2015] FCAFC 145 at [67]-[79]. The applicant referred to this at the transcript of proceedings, 13 December 2022, pages 34-36; the respondent replied to this at pages 48-49
Section 30 of the Human Rights Act 2004 (Human Rights Act) provides: “So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights”. This applies to the Health Practitioner Regulation National Law (ACT).[31] Section 10(2) provides: “No-one may be subjected to medical or scientific experimentation or treatment without his or her free consent.” [32]
[31] The Human Rights Act is not excluded by section 9 of the Health Practitioner Regulation National Law (ACT) Act 2020
[32] Section 10 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) provides: “A person must not be … (c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent”. See transcript of proceedings, 13 December 2022, pages 21-23
There is an issue as to what amounts to “medical treatment” in the context of this right; a broad definition of treatment might include a medical assessment; a narrower meaning of the application of medicines, surgery, psychotherapy, etc. would not.[33] We do not think it is necessary to resolve this here, in particular because it was not argued by the applicant. It is likely that even on the broad view, this human right is here subject to reasonable limits set by Health Practitioner Regulation National Law (ACT) which can be demonstrably justified in a free and democratic society,[34] and at any rate section 30 of the Human Rights Act is subject to the purpose of the Act involved.
Is the applicant without recourse?
[33] See P v Registrar of Firearms [2018] ACAT 20 at [45]-[50]
[34] Section 28(1) of the Human Rights Act
It was said by the applicant that the operation of these provisions leaves him without recourse.[35] We agree that they have in these circumstances a harsh effect on him, but an effect which is in line with the purposes of the Health Practitioner Regulation National Law (ACT). The respondent pointed out, as was also noted in Pham, that he could have sought judicial review of the decision to refer him for an assessment, and of the effect of section 80(5). He can enter into discussions with the Board about how to proceed. Further, as noted by the respondent and in Pham, he can now make a further application, attend any assessment, seek review of any actual deemed assessment, or obtain a substantive decision of the Board, and if not satisfied with this, seek review of it in the tribunal.
Costs
[35] Transcript of proceedings, 13 December 2022, page 29
The tribunal is generally a no cost regime, unless there are special circumstances, as set out in section 48 of the ACAT Act. This is seen as appropriate in tribunals which are to have procedures which are simple, quick, inexpensive and informal,[36] particularly in merits review of decisions. However, section 201 of the Health Practitioner Regulation National Law (ACT) provides that the tribunal may make any order about costs it considers appropriate, and section 203 provides that this applies despite any provision to the contrary of the Act that establishes the tribunal. This enables a broader range of orders than that provided for by section 48 of the ACAT Act, but does not require or even recommend this.
[36] Section 7(a) of the ACAT Act
The respondent stated that if successful they sought an order for costs, fixed in the amount of $10,000. If unsuccessful, they asked for an order that costs of the application should be costs in the substantive cause.[37]
[37] Transcript of proceedings, 13 December 2022, pages 19-21
The applicant opposed a lump sum costs order where he has no opportunity to understand or assess the reasonableness of the figure. He proposed no order for costs if he were unsuccessful, in light of the fact that the relevant sections had not previously been interpreted (though we note that in light of Pham this is not quite correct), and the public interest that flows from the issues involved. If the applicant was successful he thought there was no reason why he should not have his costs of the application.[38]
[38] Transcript of proceedings, 13 December 2022, pages 23-24
In our view given the nature of these proceedings and the issues raised, and the terms of and policy behind section 48 of the ACAT Act, that it is preferable to make no order as to costs.
………………………………..

Senior Member R Orr KC
For and on behalf of the Tribunal

Date(s) of hearing	13 December 2022
Solicitor for the Applicant:	Mr S Tierney, Ken Cush & Associates
Solicitor for the Respondent:	Mr A Moss, Clayton Utz