FEDERAL COURT OF AUSTRALIA

Australasian College of Cosmetic Surgery Limited v Australian Medical Council Limited [2015] FCA 468

THE COURT ORDERS THAT:

1.    The objection to competency be upheld.

2.    The application be dismissed.

3.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1    This is an application for judicial review brought under s 39B of the Judiciary Act 1903 (Cth) against a body corporate, albeit one said to be exercising public functions.

2    The corporation in question is the Australian Medical Council Limited (“AMC”). The AMC is an accreditation authority for the medical profession, appointed as such under the Health Practitioner Regulation National Law (“National Law”). Despite its name, the National Law is not a law of the Commonwealth Parliament, but a law made by the Queensland Parliament and applied by laws made by the parliaments of the other States and the Territories.

3    The conduct giving rise to the proceeding relates to an application to the AMC made before the National Law came into force. The application was made by the Australian College of Cosmetic Surgery (“College”). It was an application for the acceptance of a new medical specialty called “cosmetic medical practice”. At that time the AMC maintained a list of Australian recognised medical specialties for the purpose of enabling participation in the AMC’s accreditation of specialist medical education, training and development. The AMC also provided advice to the Minister for Health on specialist accreditation for the purposes of the Health Insurance Act 1973 (Cth), but the College made it clear that its application was not made for these purposes. The AMC decided to refuse the application on the basis of conclusions reached in a “Final Assessment Report” produced by one of its committees. The College sought a review of the decision and the AMC appointed an independent review panel to conduct the review. The panel’s chair, Robert Wells, produced a report (“the Wells Report”), which was adverse to the College. After receiving the report, the AMC sent the Final Assessment Report to the Minister.

4    In this proceeding the College contends that the Wells Report was “deficient in law” because it impermissibly limited its review to issues of “process”, rather than “content”. In its originating application the College named both the AMC and the Minister as respondents and applied for relief in the following terms:

1.    A declaration that the [AMC’s] so-called independent review report dated 8 July 2014 is unlawful or was unlawfully made.

2.    A declaration that the final assessment report of the [AMC] dated May 2012 may not be relied on by the [AMC] or the [Minister] until an independent review of it is lawfully made.

3.    An order in the nature of prohibition or, an injunction preventing the [Minister], his officers, servants or agents from acting on the [AMC’s] final assessment report completed May 2012 and given to the [Minister] by the [AMC] in about September 2014.

4.    An order in the nature of prohibition or, an injunction preventing the [AMC], its officers, servants and agents from acting on the [AMC’s] final assessment report of the [AMC] dated May 2012.

5.    Costs.

5    But the College discontinued the proceeding as against the Minister. Consequently, the relief it now seeks is confined to the declaration in para 1 (that the College may not rely upon the Final Assessment Report until an independent review of it is lawfully made), para 2 (that the Final Assessment Report may not be relied upon by the AMC), the order sought in para 4 (to prevent the AMC from acting on the Final Assessment Report) and costs (para 5).

6    Section 39B of the Judiciary Act relevantly provides that the original jurisdiction of this Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth (s 39B(1)) and jurisdiction “in any matter … arising under any laws made by the Parliament, other than [criminal matters]” (s 39B(1A)(c)).

7    The AMC filed a notice of objection to competency by which it contends that the Court does not have jurisdiction under s 39B(1) of the Judiciary Act because the AMC is not an officer of the Commonwealth or under s 39B(1A)(c) of the Act because there is no matter arising under any law of the Commonwealth, “there being no right or duty in question in the proceeding that owes its existence to any law of the Commonwealth, or that depends upon a law of the Commonwealth for its enforcement”. The AMC submits that in any event, there is no substance in the complaints made by the College and, even if there were, the relief sought should not be granted for various reasons including that it would be futile to do so. No application was made for a separate hearing of the question raised by the notice of competency with the result that the Court received submissions and heard argument on all issues.

8    The objection to competency was well taken and, for the most part, the AMC’s submissions must be accepted.

The scheme for recognition of medical specialties

9    In 2002 the then Minister for Health invited the AMC to advise him on the recognition of medical specialties.

10    On 27 July 2007 the AMC issued guidelines, entitled The Recognition of Medical Specialties and Sub-specialties - Policy and Process (“the 2007 Guidelines”), which were approved by the Minister on 5 September 2007. The 2007 Guidelines set out a process by which a field of medical practice could be recognised as a specialty for the purposes of the Health Insurance Act and for other purposes. The Health Insurance Act established a mechanism for an organisation to be declared a “relevant organisation” for the purpose of payment of Medicare benefits under s 19AA of the Act. I will say more about that mechanism later in these reasons.

11    The 2007 Guidelines also provided a process for seeking recognition for purposes other than the Health Insurance Act, such as listing on the AMC’s List of Australian Recognised Medical Specialties. The purpose of such listing was to enable participation in the AMC’s accreditation of specialist medical education, training and professional development programs.

12    On 25 November 2008 the Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 (Qld) (“Administrative Arrangements Act”) came into force. Amongst other things, in anticipation of the commencement of a national registration and accreditation scheme, the Administrative Arrangements Act gave the Australian Health Workforce Ministerial Council (“Ministerial Council”) the power to appoint any person or body with existing functions with respect to accreditation in a health profession to exercise functions with respect to accreditation under the scheme: see s 9(1). The Ministerial Council was defined in the Administrative Arrangements Act as the Ministers of the Commonwealth and participating jurisdictions with portfolio responsibility for health.

13    On 12 December 2008 the Ministerial Council appointed the AMC as an external accreditation entity to perform accreditation functions for the Medical Board of Australia (“Medical Board” or “Board”), a body yet to be established, which included submitting to the Board for approval the proposed accreditation of medical education providers and programs of study. The appointment was for a period of three years, to commence on 1 July 2010.

14    On 1 July 2010 the Health Practitioner Regulation National Law Act 2009 (Qld) came into force. The Health Practitioner Regulation National Law appears as a schedule to that legislation. It was adopted by all the other States, the Australian Capital Territory and the Northern Territory.

15    From 1 July 2010, pursuant to s 253 of the National Law, the AMC was taken to have been appointed to exercise accreditation functions under the National Law with respect to the medical profession. Those functions included submitting to the Medical Board for approval the proposed accreditation of medical education providers and programs of study. The AMC’s appointment was for a three year period beginning on 1 July 2010 but on 26 June 2013 the appointment was extended by a further five years.

16    On 12 June 2014, pursuant to s 13(4) of the National Law, the Ministerial Council approved new guidelines for applications for specialist recognition, entitled Approval of Specialties under Section 13 of the Health Practitioner Regulation National Law Act – Guidance for National Board Submissions to the Australian Health Workforce Ministerial Council (“Ministerial Council Guidance”). The Ministerial Council Guidance was published on the website of AHPRA (Australian Health Practitioner Regulation Agency) in late October 2014.

The facts

17    The facts set out below were either agreed or the subject of evidence which was not in dispute.

18    The College is a not for profit company limited by guarantee for surgeons, medical practitioners and health care professionals who practise in cosmetic medicine and cosmetic surgery.

19    The AMC was established in August 1984 by the Australian Health Ministers’ Conference for the purpose of accrediting medical schools and courses leading to basic medical qualifications and making recommendations to State and Territory medical boards concerning uniform approaches to registration of medical practitioners. It was also given the responsibility for administering the national examinations for overseas trained doctors. It began operations in January 1985 and assumed responsibility for the examination in January 1986.

20    The AMC was an association incorporated under the Associations Incorporation Act 1991 (ACT) until 16 July 2008, when it became a company limited by guarantee, registered under the Corporations Act 2001 (Cth).

21    On 21 August 2006 the College lodged with the AMC a preliminary application, for specialty recognition of cosmetic surgery.

22    On 4 December 2006 the AMC invited the College to submit a full application presenting a case for recognition to be assessed against the criteria for recognition, using the AMC’s “application aid” form.

23    On 18 June 2007 the AMC advised the College that (as foreshowed publicly and, through consultation with the College) it had revised its guidelines, including the criteria and its “application aid”, and invited the College to use the new guidelines and “application aid” and to submit its application after July 2007, by which time the revised guidelines were expected to be approved.

24    On 6 October 2008 the College lodged with the AMC an application for recognition of a new medical specialty of cosmetic medical practice (“the Application”). The Application stated that it was made under the 2007 Guidelines and (importantly for the purpose of the jurisdictional question) that recognition was not sought for the purposes of the Health Insurance Act.

25    Following the incorporation of the AMC, the 2007 Guidelines were revised. The revised guidelines (“2009 Guidelines”) were published by the AMC in March 2009. It was common ground that the amendments in the 2009 Guidelines merely reflected the change in the AMC’s legal status and that in all relevant respects the 2009 Guidelines were no different from those which they replaced. For this reason, generally speaking, I will refer to “the Guidelines” without distinguishing between the two.

26    In November 2008 the Application was referred to the Recognition of Medical Specialties Advisory Committee of the AMC. Based on the committee’s advice, the AMC board resolved to assess the Application and an expert recognition review group (the Cosmetic Medical Practice Recognition Review Group) was constituted to carry out the assessment. After undertaking a series of site visits and consultations with stakeholders, the review group prepared a draft assessment report which was then considered by the advisory committee. That report underwent a number of revisions.

27    On 30 June 2011 the Medical Board acknowledged receipt from the College of a letter containing submissions about the Application. In its letter the Board indicated that it was aware of the Application, that it expected to receive the AMC’s advice, and that under the National Law recognition of specialties now required the approval of the Ministerial Council.

28    In May 2012 the AMC finalised the Final Assessment Report on the Application and sent it to the College. The College did not receive the report and, upon enquiry, was sent a further copy which arrived on 1 January 2013.

29    On 16 May 2013 the College wrote to the AMC requesting a review of the Final Assessment Report pursuant to cl 5.4.6 of the 2009 Guidelines. The AMC appointed Mr Wells, of the Sax Institute, to chair the review.

30    The terms of reference for the review were as follows:

3.1    In accordance with section 5.4.6 of the procedures, the review is of the assessment of the College’s application by the Recognition of Medical Specialties Advisory Committee.

3.2    The review:

3.2.1    will consider comments and responses of the College, and the Recognition of Medical Specialties Advisory Committee’s assessment report, and

3.2.2    may include interviews and discussions if the Review Chair considers it appropriate to do so;

3.2.3    will seek further information from the recognition review group, the Recognition of Medical Specialties Advisory Committee, the applicant, or the AMC Secretariat if the Review Chair considers it appropriate to do so; and

3.2.4    will result in a report on the review findings.

31    The Review Procedures relevantly stated:

5.3    The Chair of the Review will conduct the review with as little formality as possible but otherwise, subject to section 5.4.6 of the procedures and these terms of reference, will have full power to regulate the conduct of the review.

32    “Section 5.4.6 of the procedures” was a reference to cl 5.4.6 of the Guidelines. Entitled “Review Process”, cl 5.4.6 was in the following terms:

The applicant, upon receipt of the Recognition of Medical Specialties Advisory Committee report, may request a review of the assessment should it be dissatisfied with the conclusions or judgements contained within the report.

Under such circumstances, applicants should specify in writing the reasons for seeking a review. Such applications will be considered by the Directors prior to the preparation of any advice to the Minister for Health and Ageing.

In conducting a review, the Directors will select an appropriately qualified person to chair the review panel. The person is independent in that he or she is not a member of the Council or any of its committees. The chair, in consultation with the AMC President, will decide whether any additional members should be appointed to the panel, having regard to the nature and substance of the issues raised by the organisation. Where additional members are considered appropriate, the chair and the President will select suitable persons of appropriate expertise.

The review panel considers the Recognition of Medical Specialties Advisory Committee’s assessment report, along with the comments and responses of the applicant. The panel may seek further information from the recognition review group, the Recognition of Medical Specialties Advisory Committee, the applicant, or the AMC secretariat. The review panel prepares its report and provides a copy to the applicant and the Directors. In deciding on its advice to the Minister, the Directors will consider fully the report of the review panel.

33    Mr Wells reviewed the documentation relating to the AMC’s assessment of the College’s application, received submissions from the College and met with “nominated spokesmen”. He concluded that there was “no flaw in the process that would indicate the need to set aside the recommendations of the AMC … or to refer the matter to a further expert committee for advice”. He noted that the College had made both oral and written submissions about “a range of issues” including:

•    The College claim that the AMC had previously accepted that cosmetic surgery is a distinct field in the AMC Accreditation Report of the Royal Australasian College of Surgeons, 2002 (page 21, second paragraph).

•    The College presentation of the definition of, and difference between, cosmetic surgery versus plastic and reconstructive surgery.

•    Arguments relating to scope of practice and overlap with other specialties and how such issues were dealt with in the assessment report.

•    The College’s capacity to provide a training program in cosmetic medical practice.

34    Mr Wells said that he recognised these were matters of concern to the College but asserted that “they are not within the scope of this review”. He said that he was satisfied that the AMC process was both fair and thorough.

35    On 8 July 2014 Mr Wells provided the AMC and the College with a copy of his report under cover of a letter indicating that he understood the AMC board would consider it with the Final Assessment Report at its meeting on 22 July 2014.

36    Two weeks later, on 22 July 2014, the College wrote to the AMC requesting that it take no further action, pending the College obtaining legal advice about concerns it expressed in the letter. The AMC declined to accede to the College’s request. The College then wrote to the AMC outlining its grievances. Relevantly, it complained that the review was “ultra vires” and that the College had been denied natural justice in both the review and the original assessment. The AMC rejected the College’s complaints and, under cover of a letter dated 18 August 2014, provided the Final Assessment Report (but not the Wells Report) to the Minister for Health. In the covering letter the AMC stated that it advised against recognition of a specialty of cosmetic medical practice on the ground that the College’s application did not satisfy the criteria in the 2009 Guidelines.

Issues

37    In relation to the Wells Report the agreed issues are:

(1)    Is the making of the Wells Report justiciable?

(2)    If so, is the Wells Report unlawful or was it unlawfully made or ultra vires in that it was confined to conducting only a review of the process of the conduct of the Final Assessment Report and did not consider “content issues”?

(3)    Is there a basis for making a declaration that the Wells Report is unlawful, unlawfully made or ultra vires?

38    In relation to the Final Assessment Report the agreed issues are:

(1)    Is the AMC’s decision to send the Final Assessment Report to the Minister justiciable?

(2)    If so and if the Wells Report is unlawful, unlawfully made or ultra vires, is the Final Assessment Report not yet completed because a lawful review pursuant to cl 5.4.6 of the 2009 Guidelines has not been conducted?

(3)    If the Wells Report is unlawful, unlawfully made or ultra vires, and a lawful review has not been carried out pursuant to cl [5.4.6] of the 2009 Guidelines, does the AMC have power to rely upon the Final Assessment Report?

(4)    Is there any basis for making a declaration that the AMC does not have power to rely on the Final Assessment Report until a lawful review is carried out pursuant to cl [5.4.6] of the 2009 Guidelines?

(5)    Is there a basis for issuing prohibition or an injunction to prevent the AMC from acting upon the Final Assessment Report?

39    As the justiciability issues are the same in each case, it is convenient to deal with them together as a single question: does the Court have jurisdiction? It is to that question I now turn.

Does the Court have jurisdiction?

40    The College did not rely on s 39B(1) of the Judiciary Act, effectively conceding that the AMC is not an officer of the Commonwealth and so the jurisdiction of the Court is not enlivened by that subsection. The concession was properly made.

41    The term “officer of the Commonwealth” derives from s 75(v) of the Constitution in which context Isaacs J said that “[a]n ‘officer’ connotes an ‘office’ of some conceivable tenure”, appointment and usually a salary: R v Murray and Cormie; Ex parte the Commonwealth (1916) 22 CLR 437 at 452-3 . The AMC does not answer this description.

42    The AMC is a corporation limited by guarantee, registered under the Corporations Act 2001 (Cth). While tribunals established by the Parliament, such as the Refugee Review Tribunal and the Migration Review Tribunal, whose members are appointed with limited tenure and paid a salary, are regarded as officers of the Commonwealth (see, for example, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [43] per McHugh J), it appears to be well accepted that corporations are not: see, for example, Broken Hill Pty Co Ltd v National Companies and Securities Commission (1986) 61 ALJR 124 at 127; 67 ALR 545 (Dawson J); Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 500 (Gummow J); Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 at 575 (Davies J); McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 at [26] (Branson J); Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230 at [96] (Finn J).

43    There has been criticism of this approach (see Aronson M and Groves M, Judicial Review of Administrative Action (5th ed, Thomson Reuters, 2013) pp 44-45) and the question was left open by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Aronson and Groves describe the criteria applied by Isaacs J for determining whether a person is an officer of the Commonwealth as “suspect” and argue that the corporate status of a respondent should be irrelevant to whether it should be characterised as a Commonwealth officer. They contend that it should not be competent for the Commonwealth Parliament to remove its agencies from the reach of s 75(v) by corporatising them. There may be force in these arguments but they do not assist the College for the College is not an agency of the Commonwealth. In any event, in Luck v University of Southern Queensland [2014] FCAFC 135 at [58] (Murphy, Pagone and Perry JJ), the Full Court applied the Isaacs J criteria to hold that the university, which is a body corporate, is not an officer of the Commonwealth within the meaning of s 39B, even though some of its obligations are imposed by Commonwealth legislation, and I am bound to follow that decision.

44    The more difficult question is whether there is a matter which arises under a law of the Parliament within the meaning of s 39B(1A)(c).

45    The word “matter” in s 39B(1A)(c) has the same meaning as it has in Chapter III of the Constitution: Commonwealth of Australia v Lyon (2003) 133 FCR 265 at [24] (Branson, Madgwick and Hely JJ). It has been given a broad interpretation: see the discussion in Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2010) 267 ALR 530 at [43] per Kenny J. Even so, a “matter” is more than a legal proceeding; it is the subject matter for determination in a legal proceeding: In Re The Judiciary Act and In Re The Navigation Act (1921) 29 CLR 257 (“Re Judiciary”) at 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ). Put another way, it is the justiciable controversy constituted by, or which includes, a claim arising under a Commonwealth law: Fencott v Muller (1983) 152 CLR 570 at 603-6 (Mason, Murphy, Brennan and Deane JJ).

46    Furthermore, there can be no matter unless there is “some immediate right, duty or liability to be established by the determination of the Court” (Re Judiciary at 265-266) and the claim owes its existence to a Commonwealth law or depends on a Commonwealth law for its enforcement: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154 (Latham CJ); LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). As Gibbs J put it in Felton v Mulligan (1971) 124 CLR 367 at 416:

[I]t may be said that a matter arises under a law made by the Parliament when a right, title, privilege or immunity is claimed under that law. A right, title, privilege or immunity may be claimed under a law, either because the law is the source of the right, title, privilege or immunity or because the right, title, privilege or immunity can only be enforced by virtue of the law.

47    Here, no defence or immunity is claimed under a law of the Commonwealth and no title or privilege is in question. So what is the right or duty the College seeks to establish? Does the claim owe its existence to a Commonwealth law or depend on such a law for its enforcement? Is the source of the right or duty in question a Commonwealth law or can it only be enforced by virtue of such a law?

48    The College submitted that the right it sought to have vindicated was the right to be considered by the Minister for Health as a recognised medical specialty for the purposes of the Health Insurance Act. The College further submitted that it sought to have enforced the duty of the AMC to comply with its policy “and to do so appropriately and fully”. But neither in its originating application nor its written submissions in chief did the College identify any Commonwealth law which was the source of the right it sought to protect or the duty it wished to have enforced. In its written submissions in reply, however, the College pointed to the Health Insurance Act and Regulations:

4.    The Commonwealth Act that is involved is the Health Insurance Act 1973 (Cth) (HI Act) as it was amended by the Health Practitioner Regulation (Consequential Amendments) Act 2010 (Cth) upon the making of uniform legislation relating to the regulation of health practitioners in Australia. The amending Act provided for, inter alia, the insertion of section 3(1) of the HI Act and the new definition of “specialist”.

5.    That is what the [College] is ultimately seeking by way of its original application to the [AMC] – to be recognised by the Commonwealth as a medical speciality (and to be one of the “relevant organisations” (regulation 4) listed in Schedule 4 of the Health Insurance Regulations 1975 (Cth)). This would lead to registration of practitioners in a speciality – section 3D of the HI Act and it would also permit Commonwealth and State regulated training of those specialists – see, Part 6 of the Health Practitioner Regulation National Law Act 2009 (the National Law) (as to Accreditation).

6.    The Commonwealth Minister is responsible for causing these regulations to be made (and for the acceptance of new medical specialities). While there are other entities now responsible for aspects of this under the National Law, the Minister retains these powers and functions.

7.    The amending Act also provided for the AMC to act as an organisation that directly accredits medical specialist colleges – a specific and relevant legislative function – section 3GC(6A) of the HI Act.

49    These submissions were amplified in writing and repeated in oral argument, save that in oral argument the College accepted that the relevant point in time at which the legislation should be considered was the date of its application (6 October 2008) and that the amending legislation to which it referred in its written submissions has not yet been proclaimed.

50    The College’s submissions cannot be accepted. To understand why, it is necessary to say something more about the nature and scope of the controversy between the parties and the relevance of the Health Insurance Act and Regulations.

51    It is convenient at this point to turn to s 3D of the Health Insurance Act. It provides:

Recognition as specialists of members of certain organisations on advice from the organisation

(1)    A medical practitioner is taken to be recognised as a specialist in a particular specialty, for the purposes of this Act, if the relevant organisation in relation to the specialty gives the Chief Executive Medicare written notice stating that the medical practitioner meets the criteria for the specialty (see subsection (2)).

(2)    A medical practitioner meets the criteria for a specialty if the medical practitioner:

(a)    is domiciled in Australia; and

(b)    is a fellow of a relevant organisation in relation to the specialty; and

(c)    has obtained, as a result of successfully completing an appropriate course of study, a relevant qualification in relation to the relevant organisation.

(3)    The Chief Executive Medicare must notify the medical practitioner as soon as reasonably practicable of his or her recognition as a specialist in the specialty.

(4)    This section does not limit section 3DB.

(5)    In this section:

relevant organisation, in relation to a specialty, means an organisation declared by the regulations to be a professional organisation in relation to the specialty.

relevant qualification, in relation to a relevant organisation, means a qualification declared by the regulations to be a relevant qualification in relation to the relevant organisation.

(Original emphasis.)

52    No reliance was placed on subsection (4) or s 3DB.

53    Clause 4 of the Health Insurance Regulations 1975 (Cth) states:

Relevant organisations and qualifications (Act s 3D)

(1)    For the definition of relevant organisation in subsection 3D(5) of the Act, the organisation specified in column 2 of an item in Schedule 4 is declared to be a professional organisation in relation to each specialty specified in column 3 of that item.

(2)    For the definition of relevant qualification in subsection 3D(5) of the Act, the qualification specified in column 4 of an item in Schedule 4 is declared to be a relevant qualification in relation to the organisation specified in column 2 of that item.

54    Schedule 4 Part 1 relevantly contains a table of “current organisations and qualifications” which lists the item numbers in column 1, the names of the organisations in column 2, the specialties in column 3 and the relevant qualifications in column 4. Mr Robinson SC, who appeared for the College, claimed that the College wants to be on that list.

55    The claim was an audacious one. Neither the claim nor the submission in para 5 of the College’s written submissions in reply (extracted at [48] above) is supported by evidence. Worse still, it is at odds with what evidence there is.

56    As I have already observed, the Application eschewed reliance on the Health Insurance Act. The purpose of the Application was described in its opening paragraph:

Purpose of this document

The purpose of this document is to present the case by the Australasian College of Cosmetic Surgery (ACCS) for recognition by the Australian Medical Council (AMC) of Cosmetic Medical Practice as a medical specialty. This application is in accordance with the AMC’s Guidelines for Recognition of Medical Specialties Advisory Committee and follows the Colleges preliminary application which was given prima facie approval to proceed by the AMC in accordance with the Council’s guidelines pertaining to the Recognition of Medical Specialties and Subspecialties (2007). Recognition is not being sought for the purposes of the Health Insurance Act 1973.

(Emphasis added.)

57    Understandably, the AMC emphasised the qualification in the final sentence of this paragraph. It pointed out that there was no other reference in the document to the Health Insurance Act. It submitted, in effect, that the Health Insurance Act and Regulations had nothing to do with the controversy between the parties and therefore “the matter”.

58    On the other hand, the College effectively invited the Court to ignore the statement of purpose in the Application, more particularly, the emphasised sentence. The College asserted in its written submissions in reply:

Plainly, the [College] does not merely want the AMC to regulate some courses. It plainly applied for and wanted acceptance by the Commonwealth as a new medical specialty…

This is the reason that the above Commonwealth legislative provisions are the subject of the dispute between the parties and are the justiciable subject of these proceedings.

It is ultimately a statutory scheme with statutory consequences administered by the Minister for Health, assisted by the [AMC].

59    Up to a point the first two assertions might be true. But it is not open to the Court to ignore the contemporaneous statement by the College as to the purpose of its application and therefore the context in which the controversy arose, particularly in the absence of any evidence to the contrary.

60    As I indicated earlier in these reasons, the Guidelines are concerned with the process for recognition of medical specialties for the purposes of the Health Insurance Act but also for other purposes. Paragraph 1.3 defines the aims and purposes of the recognition process:

The recognition process is designed to allow the AMC to prepare advice to the Minister that assists in determining which fields of medical practice should be recognised as specialties for the purposes of the Health Insurance Act 1973 (Cth). In practice this means either listing on Schedule 4, Health Insurance Regulations, 1975 as a recognised medical specialty, or in the case of the specialty of General Practice, the entitlement of appropriately trained individual practitioners to be listed on the Vocational Register of General Practitioners. Such recognition enables doctors with specific qualifications to attract a relevant Medicare benefit the services rendered.

…

The AMC recognition process also allows for organisations to seek recognition of a medical specialty for purposes other than Health Insurance Act. In such cases, applicants may wish to have specialist medical skills and knowledge acknowledged, and to have the education and training programs that lead to these attributes accepted as a standard for a particular area of practice. A successful application in such a case would lead to a listing on the AMC’s List of Australian Recognise Medical Specialties. This enables medical specialist training providers to participate in the AMC’s accreditation of specialist medical education, training and professional development programs…

Recognition for the purposes of the Health Insurance Act also means recognition for other purposes, but the converse is not true and cannot be implied. The process described in these Guidelines provides the avenue for both options to be considered.

61    In other words, an application for recognition as a medical specialty may be made for the purposes of the Health Insurance Act or for other purposes. While recognition for the purposes of the Health Insurance Act will mean recognition for other purposes, recognition for purposes other than the Health Insurance Act is not recognition for the purposes of that Act and no such implication may be drawn. When the College stated that it was making its application in accordance with the AMC’s Guidelines and that it was not seeking recognition for the purposes of the Health Insurance Act, it must be taken to have understood the limitations attaching to recognition in the event that its application was successful.

62    The AMC emphasised the focus in the Application on the need for specialist training in support of a submission to the effect that the College’s only purpose was to seek inclusion on the AMC’s List. I reject the submission for I consider it too narrow an interpretation of the College’s purpose. It seems tolerably clear that the College was seeking recognition of the new specialty for all purposes other than the purposes of the Health Insurance Act. This conclusion, however, is of no assistance to the College for, unless it can source the dispute between the parties in the Health Insurance Act, there is no matter arising under a law made by the Commonwealth Parliament.

63    The College put great store in the role of the Minister in the process of specialist recognition. Mr Robinson submitted that:

    the Minister approved the Guidelines personally, which means that they were then Commonwealth government “policy”;

    the AMC sending the report to the Minister was necessary for him or her to perform her or his task properly;

    the Minister was responsible for making the Regulations;

    the Minister had been at the “forefront of this entire process and if it was just an application to the AMC and just about training, [the College] wouldn’t have involved the Minister”;

    the Minister and the AMC were “close”; and

    the AMC was a private corporation assisting the Minister in the exercise of her “power or jurisdiction under the Health Insurance Act”.

64    It is true that the Minister is involved. The Guidelines state that “[r]ecognition means that the Commonwealth Minister for Health and Ageing has made a decision to recognise the specialty and, if necessary, approve an amendment to the Health Insurance Act 1973 (Cth) or its regulations”. Importantly, however, the Guidelines distinguish between decisions concerning recognition of medical specialties according to the purpose for which an application is made:

Where the applying body is seeking recognition for purposes of the Health Insurance Act: The outcome of the Stage 2 assessment will be advice by the AMC to the Commonwealth Minister indicating whether the organisation and training program assessed meets the criteria for AMC accreditation… The advice will be to assist in the determination of suitability for inclusion in the relevant sections of the Health Insurance Act 1973 (Cth) or its regulations.

Recognition is effective only once the appropriate sections of the Health Insurance Act 1973 (Cth) or its regulations have been amended to include the new specialty, organisation, training program and qualification.

65    The College emphasised the last paragraph but the last paragraph only relates to applications made for the purposes of the Health Insurance Act. It is the following paragraph which is relevant here:

When the applying body is seeking recognition for the purposes other than the Health Insurance Act: The outcome of the Stage 2 assessment will be advice by the AMC to the Commonwealth Minister indicating whether the organisation and training program assessed meets the criteria for AMC accreditation. The AMC’s advice to the Minister will relate to a particular organisation, specialty and qualification. The advice will be to assist in the determination of suitability for inclusion in the AMC’s List of Australian Recognised Medical Specialties. Recognition is effective only once the List of Australian Recognised Medical Specialties has been amended to include the new specialty, organisation, training program and qualification.

66    It is only the first-mentioned purpose which has a relationship to a Commonwealth law and that is the purpose for which the College told the AMC it was not seeking recognition. A controversy about recognition for purposes other than the Health Insurance Act has no source in a Commonwealth law. The most that could be said is that a Commonwealth law is “lurking in the background” (Felton v Mulligan at 388 per Windeyer J). That is not enough.

67    The College also contended that the Court has jurisdiction because “[t]he nature of the power exercised involves an obvious public duty, namely consultation on the recognition of medical specialties in Australia”. Amongst other things, the College referred to the Guidelines and the description of the AMC’s activities in its 2013 annual report.

68    In this respect the College relied on the decision of the Court of Appeal of England and Wales in R v Panel on Take-overs and Mergers, Ex parte Datafin Plc [1987] QB 815 (“Datafin”).

69    Datafin concerned an application for leave to apply for judicial review brought by a number of companies against the rejection of complaints they had made to the Panel on Take-overs and Mergers. The complaint related to allegedly collusive behaviour of rival companies during a takeover bid, which the applicant contended was contrary to the City Code on Take-overs and Mergers devised and administered by the Panel. The Panel was described as a self-regulating unincorporated association. Although it regulated what Donaldson MR described as “a very important part of the United Kingdom financial market”, it did so, as his Lordship put it in Datafin at 824, “without visible means of legal support”. It had no statutory, prerogative or common law powers and was not in a contractual relationship with the financial market or with those who dealt in that market. Despite this, it exercised “immense power” (at 826).

70    The application for leave to apply for judicial review was refused at first instance on the ground that the court had no jurisdiction to entertain it. The applicants appealed to the Court of Appeal which refused the application on its merits. At the hearing of the appeal, the Panel contended that the supervisory jurisdiction of the court was confined to bodies whose power derived solely from legislation or the exercise of the Crown prerogative and so judicial review did not extend to a body like the Panel. The Panel’s contention was emphatically rejected by all members of the court who did not regard the absence of a statutory or prerogative source as impeding the ability of the Queen’s courts to engage in judicial review. Lloyd  LJ said at 848 that he thought that would impose an artificial limit on the developing law of judicial review. It was sufficient that the body was discharging an important public duty and should not therefore be “cocooned from the attention of the courts” (Donaldson MR at 839).

71    The College submits that the principle in Datafin should apply here, though it concedes that the question of whether Datafin represents the law in Australia has been attended with controversy.

72    In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 at [74]-[81] Basten JA, with whom Spigelman CJ agreed, reviewed the Australian authorities. His Honour concluded:

[T]here is an absence of authority in Australia addressing the question of whether or not Datafin applies. The authorities relied upon in Grocon Constructors [Grocon constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) (2009) 26 VR 172] do not support the proposition that it is applicable … Suffice it to say that there is no authority in the High Court which supports its application and statements of general principle in that Court might be thought to adopt a more limited scope for the operation of public law remedies.

73    Mr Robinson conceded that there is no authority which would support the application of the Datafin principle to the facts of this case. He nevertheless submitted that the circumstances were analogous and the principle was apt to apply. In any event, there are two problems with the College’s argument.

74    First, the premise for it — that the AMC was exercising a public power — is open to question. That there is a public interest in regulation of medical specialties may be accepted, but that does not mean that the report was prepared or the review was conducted in the exercise of a public power.

75    Secondly, Datafin cannot assist in the satisfaction of the criteria in s 39B(1A)(c) of the Judiciary Act.

76    Consequently, I am not persuaded that the claim by the College owes its existence to a Commonwealth law or depends on such a law for its enforcement. As the AMC submitted, the 2007 Guidelines and the 2009 Guidelines were merely policies made under a non-statutory scheme with no statutory consequences.

77    It follows that the objection to competency must be upheld. This Court has no jurisdiction to grant the relief sought. That is sufficient to dispose of the application altogether, but in deference to the arguments of the parties and, lest I be wrong, I shall deal with the remaining issues.

Is the Wells Report unlawful, unlawfully made or ultra vires?

78    The Wells Report stated that its purpose was “to examine the appropriateness of the processes that were undertaken in assessing the College’s application for specialist recognition”. It was confined to an examination of those processes and found no flaw in them. It declined to consider “content issues”, despite the College’s representations that it do so. The College submitted that neither the terms of reference nor the AMC Guidelines indicated that the review should be limited to process issues and that “in arranging for and accepting receipt of an independent review that did not comply with the AMC Guidelines” or the terms of reference, the AMC was left with a document that is “fundamentally flawed, invalid” and “not what [the College] envisaged”.

79    In my opinion, there is substance in the submission that the review should not have been limited to process issues.

80    The Guidelines do not specify that the review is to be a review of the merits. The College drew attention to the opening words of cl 5.46:

The applicants, upon receipt of the Recognition of Medical Specialties Advisory Committee report, may request a review of the assessment should it be dissatisfied with the conclusions or judgements contained within the report.

81    This says nothing, however, about the nature of the review. Even so, it is understandable that the College might think that its complaints about the conclusions or judgements contained within the report would be considered in the review.

82    The AMC submitted that cl 5.4.6 must be read in context and, read in context the review contemplated by the Guidelines, was not a review of the merits of the committee’s decision. Dr Allars SC, who appeared for the AMC, referred to the last sentence of the clause (“In deciding on its advice to the Minister, the Directors will consider fully the report of the review panel”), emphasised the words “consider fully” and submitted:

So this cannot be de novo merits review. The independent reviewer is not expected to have power to replace the final assessment report or to vary it but simply to make a report which will be considered fully by the AMC. And given the very complex process that’s set out in the guidelines for assessing applications leading up to this section on review, it might be a little bit surprising if the guidelines were to give a power to review the substance of a matter which is complex, requires expertise and consultation with other parties.

83    The first sentence of the submission is a non sequitur. Merely because the AMC’s directors are to “consider fully” the report of the review panel does not mean that the review is not expected to go to the merits of the Application, at least where, as here, the applicant’s complaints canvass matters going to the merits.

84    There is nothing complex about the process. It is true that in order to review substantive matters some expertise would be required. But cl 5.4.6 states that the directors will select an “appropriately qualified person to chair the review panel”. This is an ad hoc, not a standing, committee. The decision as to what qualifications will be appropriate will doubtless be guided by the reasons given by the applicant for seeking the review. In any event, the clause provides for the chair, in consultation with the AMC President, to decide whether additional members should be appointed to the panel, “having regard to the nature and substance of the issues raised by the [applicant]”. This emphasises the fact that the scope of the review will depend on the issues raised by the applicant. If the applicant’s concerns are confined to procedural irregularities, then the review will be so confined. If the applicant’s concerns relate to the reasoning process, then that should be reviewed. In this case the applicant did have concerns about process issues but, as it stressed in its submission to the panel on 13 December 2013, its concerns went well beyond matters of process. As the College put it:

Aside from procedural fairness concerns such as ongoing criteria and procedural changes throughout the course of the College’s Application process (noted in previous correspondence to the AMC), the most significant concern of the College, that impacts almost every conclusion of the Recognition Review Committee’s Assessment report and the final report, is the uncritical acceptance of the key assertions and contentions contained in the submissions of the Royal Australasian College of Surgeons and particularly, its reconstructive surgery training sub-contractor, the Australian Society of Plastic Surgeons, notwithstanding the misstatements, errors and evident financial interest of ASPS fellows.

85    If Mr Wells considered that he was ill-equipped or unqualified to deal with these concerns, then, in consultation with the AMC President, he should have appointed to the panel someone who was qualified.

86    In my view, then, on a proper construction of cl 5.4.6, the kind of review would vary from case to case, depending on the issues raised by applicant. In an appropriate case, it would include a review of the conclusions or judgements reached by the committee. In this case, therefore, it should have included a review of the merits of the committee’s decision. Consequently, the review Mr Wells conducted was not the review contemplated by the Guidelines. It addressed some, but not all, of the College’s concerns and, importantly, it did not address its “most significant concern”. But this does not mean that the report is unlawful or unlawfully made or ultra vires. What law did it violate? Why was it beyond power? The College was unable to provide a satisfactory answer to either of these questions.

87    As the AMC submitted, neither it nor Mr Wells had a statutory duty to conduct a review or to conduct a review of a particular kind. While cl 5.4.6 of both the 2007 and the 2009 Guidelines provided for a review, the Guidelines were not made pursuant to a power conferred on the AMC by the Health Insurance Act or Regulations or any other legislation and had no statutory force.

88    The powers of the AMC were not conferred by statute, but by its constitution. Yet, Mr Robinson disavowed reliance on the constitution and declined the invitation to take the Court to it in order to demonstrate that the review was beyond the AMC’s powers. He told the Court that he was not contending that the review exceeded the AMC’s constitution. Rather, he submitted:

[W]hen there is a Ministerial policy that is approved specifically by the Minister in a matter that goes directly to his administration of the Health Insurance Act 1973, then that binds the respondent in the exercise of its functions in administering that policy.

89    There are several difficulties with this proposition.

90    First, the “policy” was the AMC’s, not the Minister’s, albeit that it was approved by the Minister.

91    Secondly, these were Guidelines, not laws or Ministerial directives.

92    Thirdly, as Mr Robinson accepted, the Guidelines had no statutory force. As I have already observed, they were not made under a provision of any legislation, let alone the Health Insurance Act or Regulations.

93    Fourthly, Mr Robinson did not explain why they bound the AMC. He simply asserted that they did. He was unable to point to any authority for the proposition that a policy without statutory force binds a private company, whether or not the company was exercising powers on behalf of government. Datafin is not authority for this proposition.

94    Thus, the submission that the Wells Report is “fundamentally flawed” and therefore invalid is no more than an ipse dixit, that is to say an unsupported statement which rests solely on the authority of the individual who makes it. The Guidelines are not binding on the AMC merely because senior counsel says they are.

95    During oral argument Mr Robinson also submitted that the review raised “a fundamental issue going to fairness and natural justice”.

96    The contention in the correspondence from the College to the AMC that it had been denied natural justice was refuted by the AMC in its reply. It is not a ground of judicial review the College ever invoked. Besides, as the College had ample opportunity to be heard, and I was not taken to any material to suggest that any complaint was made that the reviewer was biased or that bias should be imputed to him, the only basis upon which it could advance such a claim was because its legitimate expectations had not been met. At a later point in the argument Mr Robinson put his case in this way, reviving his complaint that there had been a denial of procedural fairness, this time referring to the High Court’s decision in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648.

97    There are a number of problems with the contention that the College was denied procedural fairness because its legitimate expectation as to the kind of review that would take place was not met.

98    As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [34], while the creation of an expectation may give rise to a duty to afford procedural fairness or affect the practical content of the duty, not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation.

99    In that case Mr Lam, whose visa had been cancelled by the Minister, complained that he had a legitimate expectation that the Minister’s delegate would contact his children’s carer before the decision was made, an expectation that was not fulfilled. He sought certiorari to quash the cancellation decision. The High Court held that there was no denial of procedural fairness. Gleeson CJ said (at [38]) that he had suffered no “practical injustice” because of the disappointment of his expectation because he was not deprived of the opportunity to put his full case. The same might be said here.

100    It is, however, unnecessary to come to any conclusion as to whether the College was the victim of procedural unfairness. Procedural unfairness was not raised in the originating application. The parties agreed upon the issues and this was not one of them. And no application was made to amend the originating application. As Mr Robinson acknowledged, the case the College brought to the Court was not a case of procedural unfairness. The case it brought was one of excess of power. That case is not advanced by any argument that the College’s legitimate expectations were not met when the reviewer conducted a review that did not conform to the Guidelines.

101    Thus, although the review that was conducted may well not have been the review the College expected or the review the Guidelines contemplated, it was not unlawful, unlawfully made or ultra vires.

Is there a basis for making a declaration that the Wells Report is unlawful, unlawfully made or ultra vires?

102    Section 21 of the Federal Court of Australia Act 1976 (Cth) gives the Court the power, in civil proceedings in relation to a matter in which it has original jurisdiction, to make binding declarations of right, regardless of whether consequential relief is or could be claimed.

103    Nevertheless, assuming, contrary to what I have found, that the Court does have jurisdiction and one of these epithets was accurate, I would not make a declaration to this effect. There would be no point in doing so. As the AMC submitted, no consequences would flow from such a declaration. In these circumstances, a declaration should not be made: Australian Institute of Private Detectives Ltd v Privacy Commissioner (2004) 139 FCR 394 at [38] (Sackville J).

If the Wells Report is unlawful, unlawfully made, or ultra vires, is the Final Assessment Report not yet completed because a lawful review pursuant to cl 5.4.6 of the 2009 Guidelines has not been conducted?

104    It is not necessary to answer this question in view of the conclusion I have reached that the report is not unlawful, unlawfully made or ultra vires.

If the Wells Report is unlawful, unlawfully made, or ultra vires, and a lawful review has not been carried out pursuant to cl 5.4.6 of the 2009 Guidelines, does the AMC have power to rely upon the Final Assessment Report?

105    For the same reason it is not necessary to answer this question either.

Is there any basis for making a declaration that the AMC does not have power to rely upon the Final Assessment Report until a lawful review is carried out pursuant to cl 5.4.6 of the 2009 Guidelines?

106    Assuming, contrary to what I have found, that the Court does have jurisdiction and that the AMC does not have this power, I would decline to make the declaration the College seeks.

107    First, the form of the declaration lacks clarity and precision. What is meant by “rely upon”? For what purpose would the AMC be relying on the report, given that it has completed its task? Is this a reference to what the AMC already did? If so, to what does it refer? At no stage did the College propose any alternative form of declaration which would rectify these deficiencies, despite the fact that the AMC had raised this issue in its written submissions.

108    Secondly, although the discretion of the Court is broad, in general before exercising it in favour of an applicant the question must be real and not abstract or theoretical: Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 437 (Gibbs J). Furthermore, “there is no discretion to declare the existence or non-existence of a situation which does not give rise to a right in the applicant”: Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55 at 60 (Barwick CJ).

109    Here, the scheme for specialist recognition under which the College applied no longer exists. It has been superseded by the scheme established by the National Law and there are new guidelines relating to approval of applications for specialist recognition (the Ministerial Council Guidance). Under the new scheme it is the Ministerial Council, not the AMC, which decides whether to approve a list of specialties and the Council’s approval depends on a recommendation of the Medical Board, not the AMC (National Law, s 13(2)(a)). The Medical Board may have regard to “relevant advice” provided by the AMC and there was evidence that the Medical Board had written to the College on 30 June 2011 stating that the Board was aware that the College had applied to the AMC for recognition as a specialty and looked forward to receiving the AMC’s advice in due course. But I was not taken to any evidence to indicate that the Board had made any request of the AMC for advice or that the AMC has ever provided a copy of the report to the Board. In these circumstances, nearly four years hence, the relief the College seeks is purely hypothetical.

110    Nevertheless, the College submitted that relief would still be “appropriate” because the AMC had sent the report to “the Commonwealth” and it was now “part of the record” and should be corrected. Furthermore, the College submitted, the report could “found an application under s 13 of the National Law for specialist recognition”.

111    These submissions are unpersuasive. As to the first proposition, the College does not seek an order that the Minister’s copy of the report be destroyed or that the report be revised or amended. The Minister is free to distribute that copy, should she choose, to the other members of the Ministerial Council. The AMC’s copy will remain part of its records regardless of what decision the Court makes. As to the second, as the report recommends against specialist recognition, it could scarcely be the foundation for recognition.

Is there a basis for issuing prohibition or an injunction to prevent the AMC from acting upon the Final Assessment Report?

112    As the College accepted, absent jurisdictional error, prohibition is unavailable. While an injunction may be granted to prevent an error being made within jurisdiction, it would be futile to grant one in this case. As the AMC submitted, there is no relevant threatened action to be restrained. The AMC sent the report to the Minister before the College instituted this proceeding. There is nothing more for it to do. There are no transitional provisions under the National Law in relation to applications made under the Guidelines and, as Dr Allars put it, the Guidelines were overtaken by events. The AMC’s functions under the 2009 Guidelines are exhausted and, as I have already observed, I was not taken to any evidence that the Medical Board has asked for its advice on whether or not there should be a specialty of cosmetic practice or any evidence that the AMC has sent the Medical Board a copy of the report. Besides, there would appear to be nothing to prevent the Board from obtaining a copy of the report from the Minister, should she or he choose to give it to the Board or provide it in response to a request the Board might make under the Freedom of Information Act 1982 (Cth).

Conclusion

113    The Court lacks jurisdiction to deal with the application. In any case, the Wells Report was not “unlawful, unlawfully made or ultra vires”. Even if it were, I would decline the relief sought. Accordingly, the objection to competency is upheld and the originating application will be dismissed with costs.

Associate:

Dated:    14 May 2015