FEDERAL COURT OF AUSTRALIA

Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the Federal Circuit Court of Australia on 24 February 2014 and 18 June 2014 are set aside.

3.    In lieu thereof, it is ordered that the application by the respondent for an extension of time within which to bring an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the judicial review application made as a consequence of the granting of that extension by the Federal Circuit Court of Australia be dismissed.

4.    The respondent pay the appellant’s costs of the appeal and in the court below.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GREENWOOD AND LOGAN JJ:

1    This appeal from the Federal Circuit Court of Australia (Federal Circuit Court) serves as a reminder that, for the medical profession, the contribution from the Consolidated Revenue of the Commonwealth towards its fees comes at the price of detailed regulation of that profession by the Parliament and, in turn, by the Executive.

2    The respondent, Nicholl Holdings Pty Ltd (Nicholl Holdings) is controlled by a medical practitioner, Dr Evan Nicholls. Nicholl Holdings operates in Townsville, North Queensland, a large general medical practice, of the kind that has come to be termed a “GP Superclinic”. There was evidence before the court below that the establishment of “GP Superclinics” was responsive to a policy developed in 2009 by the then Commonwealth government.

3    The practice in question is known as “Townsville Superclinic”. It has operated initially from premises at the corner of Stokes and Sturt Streets, Townsville and latterly from premises at Bundock Street in that city. It is a feature of this type of medical practice that it offers “bulk billing” to patients. This means that the professional medical services provided at the practice must be eligible for the payment to a patient of a medicare benefit under the Health Insurance Act 1973 (Cth) (HIA). The assignment to the practice, permitted under the HIA, of the patient’s right to this benefit forms the whole or a substantial proportion of the professional fee charged to the patient for a service rendered. Payment rights so assigned are then collated and claimed in bulk by the practice operator and settled from funds appropriated from Consolidated Revenue; hence the term “bulk billing”. The offering of medical services on this basis is the whole reason for the establishment of this type of medical practice.

4    To operate this type of medical practice, Nicholl Holdings needs to employ a considerable number of general practitioners. Dr Nicholls’ experience has been that it has not been possible always to secure general practitioners in sufficient numbers to staff the practice from the ranks of those trained in Australia. This has led at times to a need for Nicholl Holdings to recruit overseas trained medical practitioners. In turn, the very nature of a “GP Superclinic” means that overseas trained medical practitioners whom Nicholl Holdings would wish to recruit must meet the requirements of the HIA.

5    These requirements are to be found in s 19AB of the HIA and in guidelines made by a delegate of the appellant Minister for Health (Minister) under and for the purposes of that section (Guidelines). To give context to the course of dealings between Nicholl Holdings and officers of the Minister’s Department (Department), which culminated in the judgements of the Federal Circuit Court which are the subject of the present appeal, it is necessary to summarise the effect of the material provisions in s 19AB and to refer to the Guidelines as in force over the period of that course of dealings.

6    Subject to the meeting of certain criteria which are not relevant to the practitioner recruitment proposed by Nicholl Holdings, s 19AB(1) and s 19AB(2) of the HIA make a professional service rendered by an overseas trained doctor ineligible for the payment of medicare benefit under the HIA. By s 19AB(3), the Minister is given power to exempt a person or class of persons from the operation of s 19AB(1) and s 19AB(2). The Minister is empowered to grant any such exemption subject to conditions: s 19AB(4). The Minister is required to determine guidelines for the exercise of the exemption powers granted by s 19AB(3) and s 19AB(4): s 19AB(4B) of the HIA. These are the Guidelines the nature, meaning and effect of which is at issue in the appeal. A Ministerial determination of guidelines is a “disallowable legislative instrument” for the purposes of s 46AA of the Acts Interpretation Act 1901 (Cth). In making exemption decisions, the Minister is obliged to comply with these Guidelines: s 19AB(4A).

7    A feature of s 19AB of the HIA is that any exemption is granted by the Minister to a practitioner or class of practitioners, not to their prospective employer. Even so, s 19AB does not state that, in respect of a class exemption, the application must be by a practitioner, as opposed to a prospective employer of a class of practitioners.

8    The Minister is, by s 131 of the HIA, empowered to delegate the powers conferred on him by that Act. This power was exercised by the Minister so as to confer upon an officer of the Department holding the office of Director, Workforce Regulation Section, Health Workforce Division the power conferred by s 19AB(4B) of the HIA to determine the Guidelines. Officers of the Department holding particular appointments within the Workforce Regulation Section were empowered, by delegation from the Minister, to exercise the s 19AB(3) exemption power.

9    Over the course of dealings between Nicholl Holdings and the Department, the Guidelines governing the exercise of the exemption power changed.

10    Subject to the operation of a transitional provision, the Guidelines which were operative on and from 3 September 2012 were the Health Insurance (Section 19AB Exemptions) Guidelines 2012 (2012 Guidelines). The 2012 Guidelines (cl 4) revoked the Health Insurance Act 19AB Guidelines, made in 2001 (2001 Guidelines). The 2012 Guidelines were recently revoked (on and from 2 February 2015) by the Health Insurance (Section 19AB Exemptions) Guidelines 2015.

11    On 27 September 2012, Nicholl Holdings sought from the Department’s Workforce Regulation Section what is known as a Preliminary Assessment of a District of Workforce Shortage (PADWS).

12    The factor of a “District of Workforce Shortage” was originally made relevant to exemption decisions under s 19AB(3) of the HIA by the 2001 Guidelines. These materially provided:

4.1     Work located in a district of workforce shortage

4.1.1    In most cases the primary consideration for a decision maker on the granting of exemptions under section 19AB, except class exemptions, is that applicants must work in districts of workforce shortage.

4.1.2    A district of workforce shortage is a geographic area in which the general population need for health care is not met. Population needs for health care will be unmet if a district has significantly less access to medical professional services of the type provided by applicants than the national average.

4.1.3    A district is determined by reference to the geographic area (metropolitan or rural) immediately surrounding the specific practice locations at which applicants have applied for exemption. The size of the area considered will vary depending on the types of practice to be engaged in by applicants.

13    What is evinced by this provision is a policy of granting exemption in respect of overseas trained medical practitioners who will work in areas which would otherwise have significantly less than the national average of access to medical professional services.

14    In practice, and as the primary judge found (reasons for judgment, para 23), based on Dr Nicholl’s evidence, “an employer requiring the services of an overseas trained doctor … 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”.

15    There is no express provision for a PADWS in either the 2001 Guidelines or the 2012 Guidelines.

16    The PADWS process was, at the very least, an administrative practice developed by the Department during the currency of the 2001 Guidelines, in response to a recognition of the pragmatic aspects of recruitment, ie that there was no point in an employer such as Nicholl Holdings taking steps to recruit an overseas trained medical practitioner unless that employer could reasonably anticipate that the “District of Workforce Shortage” consideration, relevant to an application by that practitioner for exemption under s 19AB(3) of the HIA, would be met.

17    The 2012 Guidelines also made provision for a factor defined (cl 5) as a “District of Workforce Shortage”. In respect of medical practitioners who were not specialists, this factor was “a geographical area determined by the Department, in which the number of FTE medical practitioners who are general practitioners … is less than the current national average”. The term “FTE” is defined (cl 5) to mean “full time equivalent”. By cl 6(2), “whether the service location is in a district of workforce shortage in respect of the type of practitioner to which the application relates” is made the primary consideration in relation to the making by the Minister of an exemption decision under s 19AB(3).

18    The 2012 Guidelines contained a transitional provision, cl 14. This provided that the 2001 Guidelines continued to apply in respect of applications for a s 19AB(3) exemption made before the commencement of the 2012 Guidelines, ie before 3 September 2012.

19    On 5 September 2012, shortly after the 2012 Guidelines commenced, the Department’s Workforce Regulation Section sent to Nicholl Holdings by email what appears to be a generic advice referable to the pending discontinuance of the PADWS process as a consequence of the commencement of those guidelines. That advice contained the following statement:

The Department will continue to accept PADWS applications until 6:00 pm Australian Eastern Standard Time (AEST) on Friday, 28 September 2012. No further PADWS applications will be accepted beyond this deadline.

The PADWS application lodged with the Department by Nicholl Holdings on 27 September 2012 was prompted by this notification. This application related to the proposed establishment of a Superclinic at 87 Charters Towers Road, Hyde Park in Townsville.

20    As to the temporary continuance of the PADWS practice, the advice of 5 September 2012 put in more precise terms information which had been conveyed in the course of a telephone conversation by Ms Abha Bedi, an officer of the Department holding the position of Director of the Workforce Regulation Section to Ms Migiwa Tomita, an employee of Nicholl Holdings on 24 August 2012. The primary judge found that Ms Tomita was also informed by the departmental officer that Ms Bedi had told Ms Tomita that it was “not necessary that the Superclinic be opened” (reasons for judgment, para 27). We infer that the lack of necessity referred to related to a lack of need, in order for a PADWS to be considered, for the Superclinic to be opened.

21    On 22 October 2012, the Assistant Director of the Workforce Regulation Section advised Nicholl Holdings of the result of its PADWS application. The preliminary advice, which was expressed to be current for three months, was that Townsville was not a District of Workforce Shortage. Thus, the preliminary assessment was not favourable in relation to the prospect that s 19AB(3) exemption would be granted in respect of an application by an overseas trained medical practitioner recruited by Nicholl Holdings, even if that practitioner otherwise met the criteria for exemption.

22    Nicholl Holdings then sought the review of this decision. Section 19AC makes provision for the review by the Minister of s 19AB(3) exemption decisions. Ms Bedi considered the review request in her capacity as a delegate of the Minister. On 14 January 2013, she advised Nicholl Holdings that the issues raised in its review request did not relate to a s 19AB(3) exemption application and that, therefore, she was unable under s 19AC to consider the request for review. In so doing, she stated, “The PADWS application process was not recognised within the Act”.

23    Initially, Nicholl Holdings sought the external merits review of this decision by the Administrative Appeals Tribunal. By s 19AC(1) of the HIA, it is provided that, “An individual applicant for an exemption under subsection 19AB(3) may apply to the Minister for reconsideration of a refusal by the Minister to make such an exemption in respect of the applicant.” This review application was withdrawn on 13 March 2013.

24    It was in these circumstances that Nicholl Holdings filed on 11 April 2013, in what was then known as the Federal Magistrates Court, an application for an extension of time within which to review “the [Minister’s] decision to not approve the [PADWS] application filed by [Nicholl Holdings] with [the Minister] on 27 September 2012”. The extension of time application did not identify whether it was sought to review either the decision of 22 October 2012 or that of 14 January 2013, or each. Neither do the orders ultimately made by the Federal Circuit Court do so. It appears to us that the parties conducted the proceedings below on the basis that it was the adverse PADWS decision of 22 October 2012 which was the subject of the proposed judicial review application, rather than the decision of 14 January 2013 that it was not possible internally to review that decision.

25    In any event, in respect of the hearing of the extension of time application the parties promoted to the court and the learned primary judge adopted the course of treating submissions on the extension of time application as to the merits of the judicial review application as submissions on that application in the event that the court were disposed to grant an extension of time. This can often prove to be an efficient way in which to deal with such applications as, apart from whether there is an acceptable explanation for the delay in the filing of the judicial review application, the prospective merits of that application are always a relevant consideration in deciding whether or not to grant an extension of time.

26    In the result, the Federal Circuit Court came on 24 February 2014 to make the following orders:

1    That the Applicant be granted an extension of time to proceed with the Application filed on 11 April 2013.

2    That the Preliminary Assessment of a District of Workforce Shortage application be referred back to the Respondent for further consideration.

3    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.

27    Costs were not then determined but reserved. On 18 June 2014, the Federal Circuit Court made the following orders in respect of costs:

1    There be no order as to costs in respect of the application filed 11 April 2013.

2    The respondent pay the applicant's costs of and incidental to the application filed 24 May 2013 in accordance with Schedule 1 of the Federal Circuit Court Rules 2001, as agreed, and failing agreement, as may be assessed.

3    The parties are to bear their own costs of and incidental to this costs application.

4    This matter reasonably required the attendance of Counsel.

28    Before the Federal Circuit Court, the Minister had opposed the granting of an extension of time not on the basis of the absence of an acceptable explanation for delay but rather on the basis that there was no decision under an enactment entailed and, thus, there was no jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) to entertain the proposed judicial review application. The further or alternative submission made on behalf of the Minister was that, even if there were a decision under an enactment, there was no error entailed in the making of the decision of 22 October 2012 by reference to the 2012 Guidelines. In these submissions were to be found the essence of the Minister’s grounds of appeal to this Court. There was no separate challenge made to the costs orders.

29    Each of these submissions was rejected by the primary judge. His Honour’s conclusion that the decision of 22 October 2012 was one under an enactment appears to have been based on the proposition that the Guidelines, be they the 2001 Guidelines or the 2012 Guidelines, were each made pursuant to s 19AB(4) and therefore the decision was one “under an enactment” (reasons for judgment, para 57).

30    The primary judge rejected the submission that it was necessary in any event for the 2012 Guidelines to be followed for this reason (reasons for judgment, paras 76 and 77):

76.    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 6.00 pm 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.

77.    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.

31    The jurisdictional importance, in respect of an application for the judicial review under the ADJR Act, of there being a judicially reviewable “decision” flows from s 5 of that Act, which permits the making of an application either to this Court or to the Federal Circuit Court, by a “person who is aggrieved by a decision to which this Act applies”. The phrase, “decision to which this Act applies” is defined by s 3 of the ADJR Act in this way:

“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.

Note:    Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act.

32    In turn, s 3 defines “enactment” as follows:

“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 part 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, of 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.

Note:    Regulations for the purposes of section 19B can amend Schedule 3 (see section 19B).

33    The decision of 22 October 2012 was certainly one of an administrative character. But was it one made “under an enactment”? Having regard to the definition of “enactment”, both the HIA (by virtue of para (a) of the definition) and each of the 2001 and 2012 Guidelines (by virtue of para (c) of the definition) fall within the meaning of that term. This conclusion is necessary but not sufficient to answer the question posed, for the decision must be one “under an enactment” (our emphasis).

34    When, in her letter of 14 January 2013, Ms Bedi advised Nicholl Holdings that “The PADWS application process was not recognised within the Act”, she was not mis-stating the position. There is no express provision in the HIA for the making of such a preliminary assessment at the request of a prospective employer of a medical practitioner who will come to seek exemption under s 19AB(3). Nor, as we have already noted, did either the 2001 or the 2012 Guidelines make any such express provision. That did not mean, and we are certain Ms Bedi did not intend to convey, that, over the years of its operation, the PADWS system had been unlawful.

35    The Minister was, in terms of s 64 of the Constitution, one of the “Queen’s Minister of State for the Commonwealth”, appointed by the Governor-General to administer a Department of State. The Department was one of these Departments of State. Pursuant to s 64 of the Constitution, and on the advice of the Prime Minister of the day, the Governor-General establishes Departments of State and assigns Ministers to administer those departments, specifies matters to be dealt with by those departments and consigns particular legislation to be administered by particular Ministers. In this fashion, the Minister came to administer the HIA. In this administration, the Minister was, as s 67 of the Constitution contemplates, supported and assisted by civil servants appointed under the Public Service Act 1999 (Cth). This is the system of public administration under the Constitution. We are required to take judicial notice of this system, as was the primary judge. Under this system of public administration and subject to the Constitution and Commonwealth enactments, the Minister and, subject to the Minister, civil servants within the Department, were entitled to devise, revise, abolish and administer systems of public administration designed to facilitate the administration of legislation, notably the HIA, consigned to the Minister under the prevailing Administrative Arrangements. The PADWS system was such a system of public administration. It was not contrary to the HIA. It was not unlawful. It does not follow from this that a decision to make or not to make a favourable PADWS was one “under an enactment”, however much it related to and facilitated the administration of the HIA.

36    The answer to the question posed depends on the application, to the circumstances of this case, of the following observations made by Gummow, Callinan and Heydon JJ in Griffith University v Tang (2005) 221 CLR 99 at [89]-[90] (Griffith University v Tang):

89.    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.

90.    The character of the AD(JR) Act as a law of the Commonwealth which confers federal jurisdiction to hear and determine applications for review supports the construction of the critical phrase “decision ... made ... under an enactment” in these reasons. Reference has been made earlier in these reasons under the heading “The definition” to the importance in construing this phrase of the expression in s 76(ii) of the Constitution “arising under any laws made by the Parliament”. There must be a “matter” so arising. The meaning of the constitutional term “matter” requires some immediate right, duty or liability to be established by the court dealing with an application for review under the AD(JR) Act.

[Footnote reference omitted]

37    The making of a PADWS is neither expressly nor impliedly required or authorised by the HIA. True it is, as Nicholl Holdings submitted, that the making of these guidelines was authorised by s 19AB(4B) of the HIA. But all that means is that the Guidelines are an instrument and, definitionally by the ADJR Act, an “enactment”. Neither expressly nor impliedly do either the 2001 or the 2012 Guidelines authorise or require the making of any preliminary assessment and certainly not a PADWS. The first of the two necessary criteria mentioned in the passage quoted from Griffith University v Tang is not present. That means that the decision of 22 October 2012 was not one “under an enactment”. That being so, it was not amenable to review under the ADJR Act.

38    The PADWS system adopted within the Department and decision made thereunder were analogous to the decision made under the guidelines issued by the Commissioner of Taxation with respect to access to accountant’s papers, considered by Lindgren J in White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 and the decision under the Australian Taxation Office Practice Statement, considered by Edmonds J in Macquarie Bank Ltd v Federal Commissioner of Taxation (2013) 215 FCR 403. Each of these cases concerned a decision under a lawfully adopted system of public administration but neither was regarded as entailing a decision “under an enactment”.

39    This case, and the two mentioned in the preceding paragraph, exemplifies the importance, lest an answer be given which is at odds with the subject matter, scope and purpose of the ADJR Act, of “characterisation of the particular outcome”, stressed by Gummow, Callinan and Heydon JJ in Griffith University v Tang at [64]. In amplification, their Honours cited with approval, at [65], the following passage from the then current edition of Aronson MI, Dyer BD and Groves M, Judicial Review of Administrative Action (3rd ed, Lawbook Co, 2004) at pp 73-74:

Many of the difficulties stem from the fact that no statute could possibly spell out the detail of every single decision or step in the decision-making process, which it requires of its administrators. Some statutes are admittedly more detailed than others, whilst some do little more than stipulate the administrator’s end goals and a few methods. But, whether the statute be detailed or broad brush, they all need to contain a provision which states in substance and in very broad terms that a Minister, bureaucrat or other agency has the power (or even the duty) to administer this Act, and to do all things necessary in that regard. The recent trend is to treat decisions which can find no other statutory source of authority than such a clause as not being made under an enactment for ADJR purposes, although here has been scant attempt to identify why that approach should be adopted as a matter of principle.

(Original emphasis)

In the discussion in Griffith University v Tang which culminates in the passage at [89] to [90], which we have quoted above, is to be found identified why, as a matter of principle, administrative decisions which have no greater nor needed authority than a general power of administration do not fall within the ambit of a decision “under an enactment” and are thus not amenable to judicial review under the ADJR Act. It is not necessary for us to repeat that discussion, only to apply its result as found in that case at [89] to [90]. If anything, the authority for the adoption and administration of the PADWS system, discussed above, is even more remote than a general power of administration conferred by a particular statute on a Minister or other officer of the Commonwealth, referred to in the passage quoted from Aronson, Dyer and Groves.

40    Contrary to the view of the primary judge (reasons for judgment, para 47) and to a submission made for Nicholl Holdings, no “two step” process is entailed in an exemption decision under s 19AB(3) of the HIA. The Minister (or his delegate) is required to determine an application for exemption by reference to the Guidelines in force at the time. Neither s 19AB(3) itself nor the Guidelines made provision for two stages or “steps” in the exemption decision-making process. Further, that process was initiated only by the lodgement of an exemption application. A PADWS was an administratively adopted precursor to that statutory process, not part of it. There was no exemption decision under s 19AB(3). Ms Bedi was not mistaken in the advice which she gave Nicholl Holdings on 14 January 2013.

41    Our conclusion as to the inability of Nicholl Holdings to satisfy the first of the criteria mentioned in the passage quoted from Griffith University v Tang makes it strictly unnecessary to consider whether it can satisfy the second of the two necessary criteria. If, contrary to our view, the first criterion were satisfied, we make the following observations with respect to the second criterion.

42    The Assistant Director did not have any exemption application before him when he made the decision of 22 October 2012. Such an application was though in prospect, albeit in an inchoate way, for no particular candidate for recruitment had been identified. Griffith University v Tang instructs that “the statutory definition does not require the relevant decision to affect or alter existing rights or obligations” at [89] (original emphasis). That case further instructs that it is not necessary that the “relevantly affected legal rights owe their existence to the enactment in question” and it is sufficient if they arise from the general law or statute. Though the content of a “District of Workforce Shortage” differed as between the 2001 and 2012 Guidelines, that factor was always a relevant consideration in respect of a s 19AB(3) exemption decision. Thus, it might reasonably be contended that an unfavourable PADWS decision affected a prospective legal right namely, the right of an applicant practitioner or class of practitioners otherwise qualified for exemption to be granted exemption under s 19AB(3). Given that the Minister is entitled by s 19AB(3) to grant exemption to a class of persons, Nicholl Holdings itself might have sought exemption in respect of a particular class, e.g. those to be employed at its Superclinic in Townsville. This would address any suggestion that it, rather than an individual practitioner, could not possibly be a person aggrieved by an unfavourable PADWS decision. Further, there can be no doubt that the PADWS decision was, in the circumstances, of practical significance to Nicholl Holdings.

43    In this fashion, it is by no means impossible to see how the second of the two criteria might be satisfied. That only the second could be satisfied did not mean that Nicholl Holdings was bereft of potential remedies under federal administrative law, only that those remedies were not to be found in the ADJR Act. Left to it were a number of “escape hatches” found, in respect of the High Court, in s 75(v) of the Constitution and, in respect of this Court, in s 39B of the Judiciary Act 1903 (Cth): Griffith University v Tang at [62]. As Edwards v Santos Ltd (2011) 242 CLR 421 serves to remind in respect of this Court, those remedies under s 39B may well have included the seeking of declaratory relief. None of these remedies need further be considered. They were not sought and, in any event, it was not within the jurisdiction of the Federal Circuit Court to grant them.

44    Even though a principal issue in the appeal was whether there was a decision “under an enactment”, and thus whether the two criteria mentioned in Griffith University v Tang were satisfied, to widen the focus is to raise a separate issue as to whether what we have described as the decision of 22 October 2012 was a “decision” at all for the purposes of the ADJR Act. At a general level of abstraction, the furnishing of what was termed a “preliminary advice” undoubtedly did entail the making of a decision in the course of public administration. But as is confirmed by Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337, not every decision made in the course of public administration is amenable to review under the ADJR Act. Only those administrative decisions which, at least in a practical sense, are final or operative are decisions which may be judicially reviewed under the ADJR Act. That this decision was termed a “preliminary advice” is not itself decisive, as it is substance, not form, which is critical. In this case, terming the decision a “preliminary advice” truly does reflect its substance. Preliminary though it is, it is possible, as already discussed, to discern a prospective, practical effect in the decision of 22 October 2012 but the final or operative decision contemplated by the HIA is a s 19AB(3) exemption decision. And no such decision was made or even the subject of an application for it to be made. The lawfulness of administrative decisions which lack this final or operative quality may still be questioned but not under the ADJR Act. The other remedies, discussed above, may be open but not in the Federal Circuit Court.

45    Thus, for the purposes of the ADJR Act, not only was the preliminary advice of 22 October 2012 not a decision under an enactment, it was not a “decision” at all.

46    It follows from the foregoing that the Federal Circuit Court ought to have refused to grant an extension of time to Nicholl Holdings, because it had no jurisdiction under the ADJR Act to hear and determine the proposed judicial review application.

47    If, contrary to our conclusion, the Federal Circuit Court did have jurisdiction under the ADJR Act to entertain the proceeding, was its conclusion that the PADWS decision had, in the circumstances, to be made under the 2001 Guidelines correct?

48    The application by Nicholl Holdings for a PADWS was not made until 27 September 2012, after the 2012 Guidelines had come into force. It did not therefore fall within the transitional provision in those guidelines, which authorised consideration of an application by reference to the 2001 Guidelines. Though his Honour did not expressly use the term estoppel, the learned primary judge appears to have proceeded on the basis that the Department had, by implication, represented to Nicholl Holdings that any PADWS application submitted by it before 28 September 2012 would be considered by reference to the 2001 Guidelines. There was certainly no such express representation.

49    Accepting that the Minister and his delegates were, by implication, bound to consider the PADWS application by reference to the 2001 Guidelines faces a number of difficulties. In the first instance, we do not, with respect, consider that any such representation is present by necessary implication. In the absence of a sufficiently clear and unambiguous representation there can be no estoppel: see Legione v Hateley (1983) 152 CLR 406 at 435-437 and, by way of example, Cummeragunga Pty Ltd (in liq) v Aboriginal and Torres Strait Islander Commission (2004) 139 FCR 73 at [147]. The statement in the Department’s email of 5 September 2012, quoted above, with respect to the temporary continued acceptance of PADWS applications carried no necessary implication that these would be assessed by reference to the 2001 Guidelines. The advice given to Ms Tomita rose no higher than this. There was no necessary antipathy between a preliminary assessment process and the 2012 Guidelines. It is just that, for reasons which the Director of the Workforce Regulation Section thought sound, it was no longer considered necessary, as a matter of good public administration and in light of the particular definition of a District of Workforce Shortage in the 2012 Guidelines, to continue to offer a preliminary assessment process.

50    This threshold difficulty apart, an estoppel cannot confer upon a person a right which statute or subordinate legislation denies that person: Webb Distributors (Aust) Pty Ltd v Victoria (1993) 179 CLR 15 at 38; Federal Commissioner of Taxation v Wade (1951) 84 CLR 105 at 117 per Kitto J; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 208-216 and 220-221. Especially that is so where, as here, by virtue of its impact upon the lawfulness of an exemption, the claimed estoppel would result in the payment of public monies contrary to the terms on which it was appropriated by Parliament: Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 125.

51    Thus, even if the Federal Circuit Court did have jurisdiction under the ADJR Act, the conclusion reached as to the continued application in the circumstances of the 2001 Guidelines was incorrect.

52    It follows that the appeal must be allowed. The orders made by the Federal Circuit Court on 24 February 2012 must be set aside and the judicial review application and related extension application dismissed. So, too, as a necessary consequence, must the costs orders made on 18 June 2014 be set aside. In lieu thereof, Nicholl Holdings must pay the Minister’s costs in this Court and in the Federal Circuit Court.

Associate:    

Dated:    28 May 2015

REASONS FOR JUDGMENT

RANGIAH J:

53    I have had the advantage of reading the reasons of Greenwood and Logan JJ in draft. I concur with their Honours as to the orders that should be made, but for reasons that are to some extent different. Their Honours’ exposition of the facts and the legislation allow me to express my reasons succinctly.

54    The learned primary judge was required to consider whether the Preliminary Assessment of a District of Workforce Shortage (“the Preliminary Assessment”) made by the Minister’s delegate on 22 October 2012 was a “decision” and whether any such decision was “made…under an enactment” within s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). There were two issues involved, although they were interrelated. In my opinion, the application should have failed at the first hurdle because the Preliminary Assessment was not a “decision”.

55    Section 19AB of the Health Insurance Act 1973 (Cth) (“the HIA Act”) provides, relevantly:

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

…

(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.

…

(4A)    In exercising powers under subsection (3) or (4), the Minister must comply with guidelines determined by the Minister under subsection (4B).

(4B)    The Minister must, in writing, determine guidelines that apply to the exercise of powers under subsections (3) and (4).

56    Section 19AB(3) of the HIA Act gives the Minister a discretion to grant an exemption. Consistently with that discretion, the Health Insurance Act (Section 19AB) Guidelines 2001 (Cth) (“2001 Guidelines”) expressly stated that the range of issues which could be taken into account was not limited. However, the Guidelines provided that in most cases the primary consideration was that an applicant must work in a “district of workforce shortage”. That expression was defined to mean a geographic area in which the general population need for healthcare is not met; such need would be unmet if a district had significantly less access to a relevant medical service than the national average. Other considerations stated to be relevant to deciding whether a district was a district of workforce shortage included the doctor to population ratio, the socio-economic circumstances of the proposed work locality and local special needs.

57    The 2001 Guidelines were replaced by the Health Insurance Act (Section 19AB) Guidelines 2012 (Cth) (“2012 Guidelines”), which provided that the Minister must take into account as a primary consideration whether the service location was in a district of workforce shortage. The expression “district of workforce shortage” was defined, in respect of general practitioners, as a geographical area where the number of full time equivalent general practitioners was less than the current national average. In contrast to the 2001 Guidelines, there was no room to take into account factors such as “local special needs” in deciding whether a district is a district of workforce shortage. However, the Minister could take into account “any other matters the Minister considers relevant” in deciding the exemption application.

58    It may be seen that under both the 2001 and 2012 Guidelines, when deciding an exemption application, the Minister’s assessment of whether a district was a district of workforce shortage was a primary consideration, but that the Minister could take into account any other factors he or she considered relevant.

59    The Guidelines did not refer to any procedure for a Preliminary Assessment of a District of Workforce Shortage. Providing a Preliminary Assessment was a procedure developed by the Department outside the Guidelines.

60    The application form for a Preliminary Assessment stated, “This form is not an application for…an exemption to section 19AB of the Act”. The form said “An approved PADWS provides an indication of whether a location is considered a district of workforce shortage”. It added that “receipt of an approved PADWS does not guarantee an approval for a future section 19AB exemption”.

61    The Preliminary Assessment given on 22 October 2012 stated that “the following advice is a preliminary assessment of whether the following location is currently considered to be a DWS.” It then indicated that the location of the Townsville GP Superclinic was not considered to be a district of workforce shortage. It continued:

As noted above, each application for a section 19AB exemption is based on its individual merit at the time of lodgement. This advice is based on the information provided at this time and is issued as a guide only.

62    The application for a Preliminary Assessment was not an application for an exemption from the operation of s 19AB(1). It was a request for advice as to whether a district would be likely to be assessed as a “district of workforce shortage” if an application for exemption were later to be made. That advice was provided. As the name “Preliminary Assessment of a District of Workforce Shortage” suggests, it was advice that was preliminary to the making of an application for exemption from s 19AB(1).

63    Despite the unfavourable Preliminary Assessment, a medical practitioner engaged by the respondent could still have made a successful application for an exemption from the operation of s 19AB(1). Such an application could succeed if the medical practitioner demonstrated that the district was, in fact, one of workforce shortage, or that there were other factors which favoured an exemption.

64    I agree with Greenwood and Logan JJ that there was no “two-step” process in making an application for exemption from the operation of s 19AB(1). At no stage did the respondent make an application for exemption.

65    In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ said at 337:

[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.

66    In my opinion, the Preliminary Assessment was not a “decision” within s 3(1) of the ADJR Act. It was merely the provision of preliminary advice. It was not final or operative and determinative. It was not even a conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision because there was no application for an exemption and, therefore, there was no ultimate decision to be made.

67    In Pegasus Leasing Ltd v Commissioner of Taxation (1991) 32 FCR 158, an officer of the respondent verbally informed the applicant’s solicitors that certain expenditure was regarded as being of a capital nature and therefore not deductible. O’Loughlin J held that the communication amounted only to an expression of opinion, or perhaps a statement of policy, but was not a decision. His Honour regarded the communication only as advice. It did not have the character and quality of finality, which would only come at a later stage when the affairs of the individual tax payers involved would be assessed.

68    In Dranichnikov v Centrelink (2003) 75 ALD 134, Hill J (with whom Kiefel and Hely JJ agreed) said at [28] that a mere expression of an opinion having no substantive effect on the rights of a person could not be a reviewable decision. The Full Court held that a letter giving advice to the applicants as to their eligibility for social security payments in response to a request for advice was not a decision.

69    In Miller v Goldfields Land and Sea Council Aboriginal Corporation [2014] FCA 183, White J held that in circumstances where the respondent gave an intimation as to procedures it would adopt if an application for funding were made was not a decision in circumstances where no such application was ever made. His Honour held that the occasion for the respondent to make a decision in relation to a funding request had not yet arisen.

70    I regard these decisions as analogous to the present case. The Preliminary Assessment was advice as to how a factor relevant to the decision was likely to be assessed in the event that an application was made. However, as no application for an exemption was made, the occasion for the making of a decision did not arise. I conclude that the Preliminary Assessment was not a “decision” within the meaning of that term in s 3(1) of the ADJR Act.

71    My conclusion makes it strictly unnecessary to consider the related question of whether any decision was “made…under an enactment” within s 3(1). However, if it is assumed that the Preliminary Assessment was a decision, I would respectfully agree with the analysis and conclusion of Greenwood and Logan JJ that the first of the criteria set out in Griffith University v Tang (2005) 221 CLR 99 at [89] (that the decision must be expressly or impliedly required or authorised by the enactment) is not satisfied.

72    In view of my conclusion that the Preliminary Assessment amounted to nothing more than advice, I would also conclude that the second of the criteria in Griffith University v Tang (that the decision must itself confer, alter or otherwise affect legal rights or obligations) is not satisfied. In that respect, I depart from the views of Greenwood and Logan JJ.

73    I concur with Greenwood and Logan JJ that the primary judge erred in holding that the Preliminary Assessment was required to be made under the 2001 Guidelines.

74    I agree with the orders proposed by Greenwood and Logan JJ.

Associate:

Dated:    28 May 2015