Minister for Human Services & Health v Haddad, J.G.M. & Anor [1995] FCA 530

1995FCA0530 - Corrigendum

CATCHWORDS

ADMINISTRATIVE LAW - Administrative appeals - respondent found guilty of fraud under the Medicare Scheme - Administrative Appeals Tribunal reduced period of disqualification from the Medicare Scheme imposed by Medicare Participation Review Committee - Guidelines published by Minister under the Health Insurance Act 1973 - weight to be accorded to Guidelines.

Health Insurance Act 1973 - ss.124F, 124H, 128A, 128B

Statutory Guidelines to the Health Insurance Act 1973

Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 - cons.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd. (1986)

162 CLR 24 - cons.

MINISTER FOR HUMAN SERVICES AND HEALTH v. JOSEPH GAMIL MORCOS HADDAD & ANOR.

No. G 164 of 1995

BEAUMONT, WHITLAM AND TAMBERLIN JJ.

SYDNEY

28 JULY 1995

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No.G 164 of 1995

)

GENERAL DIVISION )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: MINISTER FOR HUMAN SERVICES AND HEALTH

Applicant

AND: JOSEPH GAMIL MORCOS HADDAD

First respondent

MEDICARE PARTICIPATION REVIEW COMMITTEE

Second respondent

CORAM: BEAUMONT, WHITLAM AND TAMBERLIN JJ.

DATE: 28 JULY 1995

PLACE: SYDNEY

MINUTES OF ORDER

THE COURT ORDERS:

1. Appeal allowed.

2. Decision of the Tribunal set aside.

3. Matter remitted to the Tribunal for determination in accordance with law.

4. First respondent to pay the applicant's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No.G 164 of 1995

)

GENERAL DIVISION )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: MINISTER FOR HUMAN SERVICES AND HEALTH

Applicant

AND: JOSEPH GAMIL MORCOS HADDAD

First respondent

MEDICARE PARTICIPATION REVIEW COMMITTEE

Second respondent

CORAM: BEAUMONT, WHITLAM AND TAMBERLIN JJ.

DATE: 28 JULY 1995

REASONS FOR JUDGMENT

THE COURT

INTRODUCTION

This is an appeal, on a question of law, from a decision of the Administrative Appeals Tribunal ("the Tribunal") reviewing a decision of the Medicare Participation Review Committee ("the Committee"), (Mr. D.I. Cassidy Q.C., Dr. P. Niselle and Dr. P. Hemming), the second respondent, that Dr. Haddad, the first respondent, be disqualified from participation in the Medicare scheme for a period of ten months. The determination was made pursuant to s.124F(2)(e) of the Health Insurance Act 1973 ("the Act"). The Tribunal (Purvis J., Rear Admiral A.R. Horton and Sister M.M. McGovern) set aside the Committee's decision and, in lieu thereof, directed "a severe reprimand". The Minister now appeals from this decision.

BACKGROUND

Prior to his migration to Australia in 1985, the first respondent practised medicine in Egypt. He qualified to practice in this country in 1990. He began general practice under contract at a suburban medical centre in September 1991. That contract was terminated in January 1992 when he admitted to the co-ordinator of the centre, upon inquiry, that some procedures claimed by him in Medicare billing had not been carried out. In February 1994, he pleaded guilty to 28 charges under s.128A of the Act, was convicted and fined $5,000, with costs. Pursuant to s.124D(2), the Committee was advised of the matter. In June 1994, the Committee made its determination.

THE LEGISLATIVE SCHEME

Relevantly, s.128A of the Act provides:

"128A, (1) A person shall not make, or authorise the making of, a statement (whether oral or in writing) that is:

(a) false or misleading in a material particular; and

(b) capable of being used in connection with a claim for a benefit or payment under this Act.

Penalty: $2,000.

...

(5) It is a defence if a person charged with an offence under this section in relation to a statement made by the person did not know, and could not reasonably be expected to have known, that the statement was:

(a) false or misleading in a material particular; or

(b) capable of being used in connection with a claim for a benefit or payment under this Act.

(6) In this section, a reference to making a statement includes a reference to issuing or presenting a document, and a reference to a statement shall be construed accordingly."

By s.124D(2) of the Act, the Minister shall give to the Chairperson of the Committee a notice in writing where, inter alia, a practitioner has been convicted of a "relevant offence" (which includes an offence against s.128A - see s.124B(1)), setting out details of the offence.

By s.124F(1) of the Act, the committee shall make a determination in respect of the commission of the offence.

Section 124F(2) provides:

"A Committee ... shall, in making a determination in relation to the practitioner, determine that:

(a) no action should be taken against the practitioner;

(b) it should counsel the practitioner;

(c) it should reprimand the practitioner;

(d) the practitioner is disqualified in respect of one or more of the following:

(i) the provision of specified professional services, or the provision of professional services other than specified professional services;

(ii)the provision of professional services to a specified class of persons, or the provision of professional services to persons other than persons included in a specified class of persons;

(iii)the provision of professional services within a specified location, or the provision of professional services otherwise than within a specified location; or

(e) the practitioner is fully disqualified."

By s.124F(3), it is provided:

"124F(3). In making a determination under subsection (2) in relation to a practitioner, a Committee shall:

(a) without limiting the generality of the matters to which it may have regard in making the determination, have regard to the nature of, and the circumstances concerning the commission of:

(i) each relevant offence of which the practitioner has been convicted; and

(ii)each offence of which the practitioner has been convicted before the commencement of this Part, being an offence that would have been a relevant offence if the conviction had occurred after that commencement; and

(b) comply with guidelines in force under section 124H."

THE STATUTORY GUIDELINES

The Minister made Guidelines under s.124H(1) on 23 August 1991.

By cl.2 of the Guidelines, a Committee "is required
to have regard to the matters and comply with the directions" set out in Part II. By cl.3 nothing in the Guidelines shall be read as limiting (1) the powers conferred by the Act on a Committee; or (2) the capacity of a Committee to take into account, in making a determination, matters the Committee "considers relevant to the making of the determination", being matters not dealt with in the Guidelines. By cl.5, the Committee's consideration of any relevant offence dealt with by a court "shall not extend to a review of the [court's] decision ... ."

Part II of the Guidelines deals with matters relevant to determinations under s.124F(2).

By cl.6, it is provided that, in making such a determination, a Committee "shall have regard to the following (inter alia) matters:

"(1) the nature, and circumstances concerning the commission, of such relevant offence or offences, including:

(i) the number of such relevant offences;

(ii) the date of commission of each such relevant offence;

(iii) the seriousness of each such relevant offence;

(iv) the penalty, if any, imposed by the court upon the practitioner in respect of each such relevant offence;

(v) the reasons for decision and any other statements made by the court in relation to its consideration of each such relevant offence."

Clause 7 deals with some other relevant considerations as follows:

"7. In making a determination under sub-section 124F(2) of the Act in relation to a practitioner, a Committee shall have regard to the following matters:

(1) the length of time the practitioner has been in active professional practice as a practitioner;

(2) the effect that any particular determination that the Committee may make would have in relation to the practitioner;

(3) the effect that any particular determination that the Committee may make would have in relation to the practitioner's patients and/or the community in which the practitioner practises, in respect of the provision and quality of medical services; and

(4) any other matters which the Committee considers relevant."

Clause 8 deals with the making of determinations under s.124F(2) relevantly as follows:

"8. For the purposes of sub-section 124F(2) ..., where a Committee established in relation to a practitioner is of the opinion that some action should be taken in respect of the practitioner, in deciding what action should be taken, the Committee shall have regard to the following presumptions:

(1) where the practitioner:

(i) has been convicted of a relevant offence other than an indictable offence; and

(ii)has not on a previous occasion been convicted of a relevant offence, that disqualification for a period of not more than 6 months would be appropriate."

....

(3) where the practitioner:

(i) has been convicted of an indictable offence;

(ii)has not previously been convicted of a relevant offence, that disqualification for a period of not less than 6 months and not more than 18 months would be appropriate."

THE COMMITTEE'S DETERMINATION

In their reasons, the Committee said:

"5. There is little detail before the Committee of Dr Haddad's modus operandi. It seems that the majority of his false statements represented claims for minor procedures which were not performed during consultations which themselves were properly claimed. He was convicted on 28 charges, this being the number of claim forms to which inaccurate assignments were attached. Since some claim forms had more than one false assignment form attached to them, the actual number of services wrongly claimed exceeded 28. The value of the false claims totalled $640.00. They ran from 11 November 1991 to 11 January 1992. He pleaded guilty, was fined $5,000.00 with $46.00 in court costs. He was allowed three months to pay, and as at the time of the hearing before us, the fine had not been paid. He has repaid the $640.00.

6. The charges were laid under s.128A(1) of the Act. That section creates an offence for which the maximum penalty is $2,000 for a person to make a statement which is false or misleading in a material particular and which is capable of being used in connection with a claim for benefit or payment under the Act. The offence, unlike the more serious one created by s.128B(1) of the Act, is one of absolute liability; neither an attempt to defraud nor acknowledge [sic] of the falsity of the statement is a necessary ingredient.

7. The Magistrate included in his remarks on sentence the following important observation:

`He (the defendant) well knew what the situation was and obviously knew what he was
doing.'

8. We are required by the Guidelines issued to us by the former Minister under s.124H(1) of the Act to take as datum the fact of conviction. This does not mean that we are bound to accept the finding of the Magistrate which goes beyond the bare elements of s.128A(1) of the Act.

9. The material before the Magistrate was somewhat different from that which was before us. ... Having examined the material placed before us we concur in the Magistrate's finding. We are satisfied that Dr Haddad was aware of the falsity of the statements made by him. Had the Director of Public Prosecutions chosen to do so he could properly have laid his charges under s.128B(1) of the Act. It is a testament to his humanity that, given the subjective matters relating to Dr Haddad, he chose not to do so."

The Committee went on to say:

"12. The part of Clause 8 of the Guidelines which is relevant in the present circumstances is paragraph (1). This applies to a first offender who has been convicted of offences which are not indictable offences. Offences under s.128A(1) of the Act are not indictable offences. It directs us that a period of disqualification of not more than six months is prima facie appropriate.

13. Such a period may well be appropriate where knowledge of the falsity of the statement has not been established. Such is usually the case in summary prosecutions. Indictments are generally reserved for s.128B charges. It is the Committee's view that, where the accused knowingly makes a substantial number of false claims, notwithstanding that the Crown has chosen to prosecute for the lesser offence, a more lengthy disqualification may be appropriate.

14. Thus it is the view of the Committee that, concentrating for the moment solely on the objective elements of Dr Haddad's offences, disqualification for six months would be nowhere near sufficient. We would have been of the view that an appropriate disqualification would have been of the order of 18 months.

15. However, there are subjective matters that militate against disqualification of this duration."

The Committee then referred to the way that the first respondent had been treated by the management of the medical centre, including the circumstance that the first respondent was out of pocket $2,466.32.

The Committee referred also to a cardiac problem of the first respondent which, it said, was "not unrelated to stress".

The Committee said:

"29. The primary function of these Committees is to identify practitioners who cannot be trusted with the keys to the crock of gold at the end of the Medicare rainbow and, having done so, to devise an order, within the framework provided by s.124F of the Act and the Guidelines, to ensure as accurately as prophesy will allow that the practitioner acts within the proper parameters in future. In some cases a mere warning may suffice to attain this end; in others lengthy disqualification may be appropriate. Taking account of the medical and psychiatric evidence this Committee is unable to feel, with any confidence, that Dr Haddad will be able to continue to work at this rate without committing further offences."

The Committee concluded that the "subjective factors" mentioned "justify the reduction of the disqualification which we would otherwise have imposed from (18) months to (10) months."

THE TRIBUNAL'S DECISION

As has been noted, the Tribunal set aside the Committee's determination.

In its reasons, the Tribunal said:

"17. ... we are of the opinion that any period of disqualification must be based on the circumstances of the offence committed and the conviction imposed. The Committee, whilst noting the lesser period suggested in the guidelines to be appropriate in relation to convictions under s.128A, that is, `where knowledge of the falsity of the statement has not been established', supported a more lengthy disqualification, presumably on the basis of the applicant's admission of guilt and inferentially his knowledge of the falsity of the claims. The applicant paid to the Health Insurance Commission $2948 when only $640 was falsely claimed by him. He overpaid in recompense. He is still owed moneys by the Pacific Medical Centre.

18. Considering the principles enumerated under the Act and the guidelines issued in relation to the making of determinations pursuant to subsections 124F(2) and 124G(2), we are of the opinion that in the event of disqualification having been appropriate, after all other factors were considered, then a period of not more than six months would have been apposite. A longer period would have been outside the guidelines and principles."

The Tribunal noted that the circumstances of the first respondent at the time indicated "a very heavy commitment [under contracts with two other medical centres] particularly in Medicare related activities ... resulting in a return [gross] in 1993 of $192,000".

The Tribunal later concluded that disqualification from participation in the Medicare scheme would "clearly" reduce the first respondent's earning capacity by a significant amount and that, in the Tribunal's opinion, the Committee "paid insufficient regard to the implications of this consequence".

With reference to the Committee's finding that there was a chance that the first respondent might re-offend, the Tribunal said:

"25. Whilst understanding the basis for this assessment, we do not agree with it, but believe that insufficient regard to the psychiatric opinion was given by the Medicare Participation Review Committee. Dr Maguire holds the opinion that `the behaviour was totally out of character' (for the reasons outlined in para.21) and `it is highly improbable that he (Dr Haddad) would behave in this way again'."

After referring also to the evidence of Dr. Phillips, a consultant psychiatrist, the Tribunal concluded that "repetition is unlikely".

With respect to "other ramifications", the Tribunal accepted that the first respondent "meets a particular demand within the Arabic speaking community".

After saying that the basis for the Committee's decision to disqualify for 10 months as "the most appropriate determination is unclear", the Tribunal rejected a submission by counsel for the Minister that, as the first respondent "knew he was wrong", the Committee "`had every right' to proceed along the lines appropriate to an indictable offence(s) (s.128B)". The Tribunal said:

"The charges, laid as they were under s.128A of the Act, and the sentence `imposed' under s.4 of the Commonwealth Crimes Act, should have been the criteria upon which the determination of the Medicare Participation Review Committee was, in part, based. As previously noted, we believe a decision on this basis would limit any disqualification, should that be appropriate, to six months."

The Tribunal said that the first respondent's "inexperience [with the Medicare scheme] is no excuse; but different milieu environment and/or social surroundings can provide an explanation. They do ... so in the present matter."

In its concluding remarks, the Tribunal said this:

"33. Given what we see as circumstances appropriate to be taken into account - admission of guilt, prompt reparation, first practice in a new country, medical (and psychiatric) assessments and prognosis, and of course the amount of monetary fraud, we believe a disqualification in this instance serves or would serve little purpose. We have already indicated that disqualification may only seem to exacerbate the difficult circumstances of Dr Haddad; it seems to serve no useful or logical function in addressing the concerns of the Medicare Participation Review Committee that Dr Haddad may repeat his indiscretion.

34. We believe a more appropriate consequential penalty under s.124F of the Act would be a severe reprimand and direct accordingly.

35. It may no doubt be suggested that failure to disqualify Dr Haddad from practising under the Medicare scheme both endorses his action and fails to present `a lesson' to others in the medical fraternity. We would not accept such arguments; the civil conviction attests to the offence, a severe reprimand, in this instance, is sufficient to reinforce the necessity to ensure that the Medicare scheme is properly observed."

THE MINISTER'S GROUNDS OF APPEAL

By his notice of appeal, the Minister seeks orders setting aside the Tribunal's decision and remitting the matter for rehearing according to law on the grounds that the Tribunal erred in law in the following respects:

(1) By holding that it was impermissible to take into account the first respondent's knowledge of the falsity of the claims.

(2) By failing to take into account the circumstances surrounding the commission of the offences, including knowledge of the falsity of the claims, for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the first respondent's conduct.

(3) By failing, contrary to s.43 of the Administrative Appeals Tribunal Act 1975, to give sufficient reasons in order to demonstrate that its reasoning was not vitiated by error of law.

GROUNDS (1) AND (2) -

RELEVANCE OF DR HADDAD'S KNOWLEDGE OF FALSITY

It is important to keep in mind that the Act is not directed to questions of professional misconduct as such but rather to ensuring the effective operation and administration of the Medical Benefits and Hospital Services Insurance Scheme constituted and regulated by the Act. As to the former see the article by Christopher Whitelaw, "Proving Professional Misconduct in the Practice of Medicine or Law: Does the Common Law Test Still Apply?" (1995) 13 Australian Bar Review 65. The relevant provisions in the present proceedings are concerned to protect and preserve the integrity of that insurance scheme.

When considering the relevance of Dr Haddad's knowledge of the falsity of the claims, the starting point is s.124F(3). This provision, "without limiting the generality of the matters to which regard may be had in making the determination", requires the Committee specifically to have regard to the nature of, and the circumstances concerning, the commission of each relevant offence of which the practitioner has been convicted, and requires that the Committee shall comply with guidelines in force under s.124H.

The relevant offence in the present case, is that under s.128A. That offence is made out upon proof that a person has made or authorised a statement that is false or misleading in a material particular and is capable of being used in connection with a claim for a benefit or payment under the Act. Knowledge is not a constituent element of the offence. However, by sub-section 5 it is a defence if a person charged did not know, and could not reasonably be expected to have known, that the statement was false or misleading in a material particular or that it was capable of being used in connection with a claim for a benefit or payment under the Act.

Under s.128B, on the other hand, the prohibition is on a person making or authorising the making of a statement if the person knows that the statement is false or misleading in a material particular and is capable of being used in connection with a claim for a benefit under the Act.

A question of construction which arises is whether, where a person is convicted of an offence under s.128A and that person does have knowledge of the falsity of the statement, such knowledge can be taken into account as a circumstance concerning the commission of the offence under s.124F(3) of the Act.

The language in which s.124F(3) is cast indicates that it is not intended to limit the range of matters to be taken into account by the Committee. It is rather directed to requiring the Committee to consider two particular aspects, namely the nature of, and the circumstances concerning, the commission of the offence and the necessity to comply with guidelines in force under s.124H. There is nothing in the terms of s.128A to indicate that knowledge is not a relevant matter to take into account. By sub-section (5), the absence of knowledge, either actual or constructive, is a defence. On a literal reading, knowledge of falsity of a statement in the present case, is a "circumstance" in which the offence was committed, in the sense that it is part of the factual context. Although Dr Haddad was not convicted of an offence which had, as one of its ingredients, knowledge of falsity, nevertheless, the fact that such knowledge existed, can be accurately described as a circumstance concerning the commission of that offence.

To have regard to the existence of knowledge of falsity, which is not an ingredient of an offence under s.128A, is not to involve the substitution of a conviction under s.128B for the conviction of the relevant offence. The consequence rather is that the fact of conviction under s.128A is taken into account, together with the circumstance that the offence was committed with actual knowledge of the falsity of the claim.

(i) Effect of the Guidelines on determinations by the

Committee

The respondent submits that the Committee was bound to comply with the Guidelines. It did not do so, the argument runs, therefore it erred. This result is said to flow from the provisions of s.124F(3)(b) which requires compliance by the Committee with the guidelines in force under s.124H.

It is submitted that the Guidelines require a presumption to be made by the Committee, which is not rebuttable, namely, that in view of Dr Haddad's convictions for "relevant offences", a maximum period of six months disqualifications is fixed. This is said to result from cl.8(1)(ii) of the Guidelines.

Whilst it is correct to say that the Committee must have regard to the presumption that because the practitioner has been convicted of an offence under s.128A, and has not, on a previous occasion, been convicted of a relevant offence, disqualification for a period of not more than six months would be appropriate, it is not correct to say that the presumption cannot be rebutted so that the Committee is bound to impose a disqualification for a period of not more than six months. The Committee is not directed by the Guidelines to impose a disqualification of not more than six months but only to have regard to the presumption that such a period would be appropriate.

Under s.124H the Minister has power to make guidelines to be applied by Committees with respect to the making of determinations.

The Guidelines in the present case have been made by the Minister "to be applied" by Committees in the making of determinations. The Schedule in which the Guidelines are set out describes them as "Guidelines to be Applied".

Under s.124H(3), the provisions of the Acts Interpretation Act 1901 ss.48-50, relating to the making, disallowance and repeal of regulations, are made to apply to the Guidelines as if references to regulations were references to provisions of guidelines and as if references to repeal were references to revocations.

While the Guidelines are not to be taken to be statutory rules within the meaning of the Statutory Rules Publication Act 1903, nevertheless certain provisions of that Act apply in relation to the Guidelines as they apply to statutory rules.

Accordingly, the Guidelines in the present case, are to be regarded as having the same binding force as the statutory rule. Although they are referred to as "guidelines" they can more properly be described as rules which in fact circumscribe the discretion which the Authority has, to use the language of Hill J in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 at 301.

The Guidelines are not mere internal policy directives drawn up within the Department to assist staff in the implementation of general policy, nor are they in the nature of administrative rulings.

The real issue in the present case is not whether the Guidelines are binding or have legislative force, but rather what their effect is, on their true construction and what they require the Committee to do when making a determination under s.124F.

Clause 2 requires the Committee to have "regard to the matters and comply with the directions" set out in the Guidelines.

Clause 3 states that nothing in the Guidelines will be taken to limit the powers conferred by the Act on a Committee. Further, nothing in the Guidelines is to be read to limit the capacity of the Committee to take into account matters that the Committee considers relevant to the making of the determination, being matters not dealt with in the Guidelines.

Clause 5 makes it clear that when considering a relevant offence under the Guidelines, which has been dealt with by a Court, the Committee shall not be entitled to review the decision of the Court in relation to that offence.

Under cl.6, in making a determination in relation to a conviction of a relevant offence, the Committee must have regard, among other things, to the nature and circumstances concerning the commission of the relevant offence including the seriousness of each relevant offence and any statements made by the Court in relation to its consideration of a relevant offence.

In the present case the Magistrate included in his remarks on sentence, a statement that the defendant "well knew what the situation was and obviously knew what he was doing".

Under cl.7, in making a determination, a Committee must have regard to certain matters such as the length of time the practitioner has been in active professional practice; the effect that a determination might have on the practitioner and on the practitioner's patients and the community in which he practises, together with "any other matters which the Committee considers relevant".

The presumption as to the limitation on the period of disqualification is framed as a presumption which the Committee shall have regard to. It is not stated that the Committee is bound to apply that time limit on disqualification. Thus, the period of six months is a "presumption" which is rebuttable. Accordingly, on its ordinary meaning, it is a prima facie period which may be varied if the Committee thinks it appropriate after having regard to other relevant matters. What it means is that the Committee begins with the presumption that the maximum six month period applies, but other evidence, circumstances and matters may outweigh it to justify the imposition of a longer period. The weight of particular considerations is a matter for the Committee.

Accordingly, in the present circumstances, we do not accept that the Committee erred when it imposed a ten month period of disqualification by stepping outside the six month period. The imposition of a longer period of disqualification was open to it, after taking all relevant circumstances into account.

The expression "guidelines" generally designates the provision of information and some direction as to a particular outcome without making that outcome or conclusion mandatory. They can, of course, be framed in mandatory terms and it is a question of construction in each particular case as to whether they compel a particular outcome. See Smoker at 289, 298-301.

In Smoker it was common ground that the relevant guidelines under consideration in that case required the result stated in the guidelines. This was not surprising when the terms of those particular guidelines are considered. So far as relevant the guidelines provided:

"3. ... the following are Guidelines with which the Authority must comply in making a recommendation on an application by a pharmacist.....

(a) approval of a pharmacist shall not be recommended in respect of premises located within 5 kilometres ... from other premises in respect of which a pharmacist is already approved ....." (emphasis added)

As a matter of construction, the above guideline is cast in mandatory terms. The mandatory phrase "shall not be recommended" is to be contrasted with the language used in cl.8 of the Guidelines in the present case which refers to "the presumptions" and "appropriate", as elements of the requirement. Moreover, as has been noted, cl.8 does not mandate a result but simply prescribes a process which requires consideration of a certain matter, namely the presumption.

We do not consider that the Committee was precluded by the Guidelines from taking account of the fact that the offence of which Dr Haddad was convicted was committed with knowledge of falsity. Indeed, the specific Guidelines set out above require the Committee to have regard to the seriousness of the relevant offence. It is material, when considering the seriousness of an offence, to consider whether it was committed as the result of inadvertence or, with knowledge of falsity. In addition, cl.6 of the Guidelines expressly requires the Committee, as a relevant circumstance, to take into account any statements made by the Court. The Magistrate expressly referred, in the present case, to knowledge of falsity.

For the above reasons, we conclude that knowledge of falsity is a relevant circumstance for the purposes of s.124F(3) of the Act and that the Committee was required to take it into account.

Accordingly, the Committee cannot be said to have fallen into error because it took into account the knowledge of falsity of the statements made by Dr Haddad.

(ii)Error of Law by the Tribunal?

There is a dispute as to whether the Tribunal's decision was based on its view that the Committee was not entitled to take account of the knowledge of Dr Haddad as to the falsity of his claims.

It is common ground that Dr Haddad knew of the falsity of the claims made by him.

In para.10 of its decision, the Tribunal refers to the conviction by the Magistrate of Dr Haddad under s.128A and points out that the alternative section, under which the applicant might have been charged, in the light of such knowledge, is s.128B. As noted by the Tribunal, this section, in contrast to s.128A, expressly requires proof of knowledge as to the making of a false statement. It is further pointed out that an offence under s.128B is a more serious offence. It is defined as an "indictable offence" in the Guidelines and
may be prosecuted as such: see s.130AA.

The Tribunal also refers, in para.16 of its decision, to the Committee taking cognisance of the statement made on sentence by the Magistrate that:

"... he well knew what the situation was and obviously knew what he was doing".

The Tribunal states the Committee "was not bound to accept the findings of the Magistrate which went beyond the requirements of s.128A(1) of the Act". In the Tribunal's view, the Committee, when considering the conviction, apparently reached its conclusion on the basis that, but for the humanity of the prosecutor, a conviction under s.128B would have been recorded.

In para.17 which is set out in full earlier in these reasons, the Tribunal expressed the view that the Committee imposed a 10 month disqualification, presumably on the basis of the applicant's admission of guilt and inferentially his knowledge of the falsity of the claims.

In para.30 of its decision, the Tribunal rejected a submission that the Committee was entitled to proceed along the lines appropriate to an offence under s.128B. The members of the Tribunal considered that the charges under s.128A of the Act and s.4 of the Crimes Act 1914 should have been the criteria on which the Committee's view was based. The Tribunal considered that, on this basis, any disqualification should be limited to six months.

The Tribunal then proceeded, in para.33, to set out the circumstances appropriate to be taken into account. These are stated to be "admission of guilt, prompt reparation, first practice in a new country, medical (and psychiatric) assessments and prognosis, and the amount of the monetary fraud." They expressed the belief that a disqualification would serve little purpose and that disqualification would exacerbate the difficult circumstances of Dr Haddad and would serve no useful or logical function in addressing the concerns of the Committee that Dr Haddad may repeat his indiscretions.

Accordingly, the Tribunal concluded that a more appropriate consequential penalty under s.124F of the Act would be a severe reprimand and gave a direction to that effect.

Moreover, the Tribunal does not list knowledge of the falsity of the statements as a circumstance "appropriate to be taken into account" in para.33, when summarising the relevant considerations.

Furthermore, paras.10, 16, 17 and 30 convey the strong impression that the Tribunal considered the Committee to have been in error in taking account of the knowledge of Dr Haddad as to the falsity of the claims and, as a result, had wrongly treated the matter before it as involving a conviction for the offence constituted by s.128B.

One other consideration that supports the above view that the Tribunal did not regard knowledge as relevant, is the determination that a "severe reprimand" was an appropriate sanction. If knowledge of falsity had been taken into account, then the imposition of a severe reprimand is, in our view, such an unreasonable result, on its face, as to indicate that the Committee must have failed to have regard to a relevant consideration, namely, knowledge of falsity. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-42; cf House v The King (1930) 55 CLR 499 at 505.

Having regard to the above matters, in our opinion, the Tribunal made its determination on the basis that the Committee had erred: (i) in taking into account and giving weight to the knowledge of Dr Haddad of the falsity of the claims, and (ii) in approaching the matter on the basis that the relevant offence was one under s.128B rather than s.128A. Accordingly, for reasons set out above, we consider that the decision of the Tribunal was erroneous in law, and should accordingly be set aside, with the matter being remitted for fresh determination.

GROUND 3 - REASONS

A further matter raised by the appellant was that the Tribunal had failed to adequately set out the real process of reasoning by which it reached its determination.

In view of our conclusion on the foregoing matters it is not necessary to consider this submission.

CONCLUSION

The appeal should be allowed. The decision of the Tribunal should be set aside. The matter should be remitted to the Tribunal for determination in accordance with law. The first respondent should pay the applicant's costs of this appeal.

I certify that this and

the preceding twenty-six (26)

pages are a true copy of the

Reasons for Judgment herein of

the Court.

Associate:

Date: 28 July 1995

Counsel for Applicant: Mr G T Johnson

Solicitor for Applicant: Australian Government Solicitor

Counsel for First Respondent: Mr M Lynch

Solicitors for First Respondent: White Green & Cooper

Date of Hearing: 31 May 1995

Date Judgment Delivered: 28 July 1995

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