Federal Court of Australia

Yoong v The Chief Executive of Medicare [2021] FCA 701

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    The applicant pay the first respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant, Dr Matthew Yoong, is a medical practitioner who operates a general practice in Brisbane.

2    On 15 April 2019, a delegate of the first respondent, the Chief Executive of Medicare (the Chief Executive), requested that the second respondent, the Director, Professional Services Review (the Director), review the provision of services by Dr Yoong for the purpose of considering whether he may have engaged in inappropriate practice. On 30 April 2019, the Director decided to undertake the review.

3    Dr Yoong applies under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decisions of the Chief Executive and the Director.

4    Dr Yoong also applies for judicial review of a further decision of the Director made on 21 May 2019 to issue a notice to produce documents.

5    The Director has made submissions, but has abided by the Hardiman principle. The Chief Executive has actively opposed the application.

6    The grounds of the application are that Dr Yoong was denied procedural fairness, that the respondents failed to take into account relevant considerations and took into account irrelevant considerations, and that the decisions were unreasonable.

7    The submissions of the parties make it necessary to consider:

(1)    Whether the making of the Chief Executive’s request under s 86(1) of the Health Insurance Act 1973 (Cth) (the HI Act) that the Director conduct a review is a decision reviewable under the ADJR Act, and whether it is susceptible to a grant of certiorari.

(2)    Whether the exercise of that power is conditioned upon the provision of procedural fairness.

(3)    Whether there was a failure to provide procedural fairness, and whether any such failure was material.

(4)    Whether the Chief Executive and the Director failed to take into account relevant considerations, or took into account irrelevant considerations.

(5)    Whether the Chief Executive’s exercise of power was legally unreasonable.

8    Although the first of these issues naturally falls for consideration first, the parties commenced their addresses with, and focussed upon, the second and third issues. As a matter of convenience, I will follow the same order. Before addressing the issues, I will describe the relevant facts and legislation.

The facts

9    On 7 August 2017, a representative of the Chief Executive, Dr Peter Baker, wrote to Dr Yoong offering him the opportunity to meet to discuss three particularised “concerns” about specific MBS Items. The letter stated that, “given your variance to peers in the rate and pattern of itemisation of these services, there is concern as to whether all MBS Item requirements were met for every service, and whether each service was clinically relevant”.

10    On 12 October 2017, Dr Yoong attended an interview with Dr Baker. On 31 October 2017, Dr Baker wrote to Dr Yoong indicating that he retained his concerns.

11    On 5 July 2018, Dr Baker wrote to Dr Yoong stating that a delegate of the Chief Executive would be reviewing Dr Yoong’s Medicare servicing and would determine if a request would be made to the Director to review the provision of services.

12    On 19 February 2019, the Chief Executive’s delegate, Dr Amanda Favilla (the delegate), wrote to Dr Yoong setting out her concerns and inviting Dr Yoong to provide written submissions in response.

13    Dr Yoong provided written submissions on 1 April 2019. He submitted, inter alia, that the concerns were based upon misuse of statistical data and that the use of statistics as a basis for the concerns was flawed. He complained that the delegate had failed to provide information he had requested about how the statistical processes, data sets and calculations were applied to arrive at her conclusions. He stated that the failure to provide that information had adversely affected his ability to make submissions. Dr Yoong said that the delegate had not considered his interview with Dr Baker in relation to his clinical practice.

14    On 15 April 2019, the Chief Executive, through her delegate, exercised the power under s 86(1) of the HI Act to request that the Director review Dr Yoong’s provision of services in the period from 1 May 2017 to 30 April 2018 for the purpose of considering whether he may have engaged in inappropriate practice.

15    The Chief Executive’s letter of request to the Director referred to three “concerns”, described as “Concern A”, “Concern B” and “Concern C”. These concerns were generally consistent with the concerns expressed in the previous correspondence to Dr Yoong.

16    The Chief Executive’s letter referred to “percentiles”. These percentiles ranked the number of services provided by Dr Yoong against the numbers provided by all general practitioners active under Medicare for the period from 1 January 2017 to 31 December 2017.

17    The letter stated that during the review period, Dr Yoong had rendered 4,759 services (within the 53rd percentile) to 857 patients (within the 23rd percentile).

18    Concern A dealt with the level of services provided by Dr Yoong to patients under MBS Items 36, 44, 5040 and 5060. The letter went on to note that Dr Yoong had provided:

    Item 36 on 1,830 occasions (97th percentile);

    Item 44 on 516 occasions (99th percentile);

    Item 5040 on 152 occasions (95th percentile); and

    Item 5060 on 67 occasions (99th percentile).

19    The letter expressed the reason for concern as being that Dr Yoong was at variance with his peers in respect of these Items.

20    The letter noted that Dr Yoong’s submissions had explained that since 1996, he worked as a solo general practitioner, full-time, five days a week in Brisbane’s central business district. Dr Yoong had explained that those consultations which had taken 20 or 40 minutes reflected the time required to take a thorough history, perform an examination, make a diagnosis, decide on investigations and referrals, determine a treatment plan and discuss his conclusions and management plan with the patient. His consultations also included the provision of counselling and advice to the patient with their friends and family present. Dr Yoong had explained that he would provide after-hours appointments if patients were not able to attend during work hours. He referred to his practice being consistent with a 2017 MBS Review Task Force recommendation.

21    The Chief Executive’s letter went on to set out a table comparing “Dr Yoong’s ratios” with the corresponding “national ratios”. The “ratios” compared the proportion of services provided under particular Items. These comparisons were as follows:

    for Item 23 compared to Item 36, Dr Yoong’s ratio was 0.45:1, compared to a national ratio of 5:1;

    for Item 36 compared to Item 44, Dr Yoong’s ratio was 3.5:1, compared to a national ratio of 10.8:1;

    for Item 23 compared to Item 44, Dr Yoong’s ratio was 1.6:1, compared to a national ratio of 54.3:1;

    for Item 5020 compared to Item 5040, Dr Yoong’s ratio was 0.1:1, compared to a national ratio of 7.4:1;

    for Item 5040 compared to Item 5060, Dr Yoong’s ratio was 2.3:1, compared to a national ratio of 12.9:1;

    for Item 5020 compared to Item 5060, Dr Yoong’s ratio was 0.2:1, compared to a national ratio of 96.4:1.

22    The letter commented that approximately 75% of Dr Yoong’s patients were provided with a service under Item 36 and that these patients were provided with an average of three services each under Item 36. Approximately 33% of all patients had a service under Item 44 and on average were provided with two services each under Item 44.

23    The letter observed that some features of Dr Yoong’s patient population and the nature of health problems he encountered went some way to explaining his rendering of Items 36, 44, 5040 and 5060. The letter stated that Dr Yoong manages a relatively low number of patients, yet the volumes of the Items of concern when compared to other general practitioners appeared disproportionate. His ratios of these Items were also at variance with the proportion of the Items as a national average.

24    The letter stated that the delegate had concerns about whether or not Item descriptors, including the time requirements of those Items, were in fact met. She also had concerns that Dr Yoong may have rendered some services that were not clinically relevant.

25    Concern B related to MBS Item 2713, which dealt with GP mental health care. The letter stated that during the review period, Dr Yoong rendered MBS Item 2713 services on 658 occasions (within the 99th percentile) to 211 patients. The letter noted that Dr Yoong had commented that consultations with patients in relation to mental health disorders can take 20 minutes, that he would spend the appropriate amount of time with patients and that doing so obviated the need for a series of short consultations.

26    The Chief Executive’s letter said that Dr Yoong’s total number of patients was in the 23rd percentile, but Item 2713 was rendered on 658 occasions (99th percentile) to 211 patients. A quarter of his patients were rendered an Item 2713 service. The letter said that the nature of Dr Yoong’s practice did not fully explain his variance to peers with respect to services under Item 2713.

27    The letter said that the services under Item 2713 appeared disproportionately high when compared to the volume of total patients. The delegate had concerns that Dr Yoong may have rendered some services that were not clinically relevant, or which did not fulfil Item requirements.

28    Concern C related to MBS Items 56022, 58909, 56223 and 56507. These Items dealt with diagnostic imaging.

29    The letter noted that within the review period, Dr Yoong initiated:

    Item 56022 on 26 occasions (99th percentile);

    Item 58909 on 25 occasions (99th percentile);

    Item 56223 on 23 occasions (87th percentile);

    Item 56507 on 23 occasions (94th percentile).

30    The letter said that Dr Yoong was at variance with his peers with respect to these Items. It was noted that Dr Yoong had explained that it was his role to determine if an investigation was necessary in order to make a diagnosis to determine or change the patient’s treatment. Dr Yoong said that the specialists to whom he referred patients agreed that his referrals were appropriate.

31    The letter stated that the delegate’s concern was not only in regard to the percentile rankings, but also in regard to Dr Yoong’s overall use of CT scan Items. Having regard to the level of variance with his peers, the delegate was concerned that Dr Yoong may have initiated some diagnostic imaging services that were not clinically relevant.

32    By a letter dated 30 April 2019, the Director informed Dr Yoong that she had received a request from the Chief Executive to review Dr Yoong’s provision of services for the period from 1 May 2017 to 30 April 2018. The Director advised that it appeared to her that there was a possibility that Dr Yoong had engaged in inappropriate practice. The letter notified Dr Yoong that the Director had decided to undertake a review into his provision of those services. The Director’s letter went on to outline the concerns that had been raised by the Chief Executive.

33    On 21 May 2019, the Director wrote to Dr Yoong enclosing a formal notice to produce documents in accordance with s 89B of the HI Act.

34    On 23 July 2019, the Director wrote to Dr Yoong noting that Dr Yoong had received a notice to produce documents on 22 May 2019 and that he had been subsequently provided with two extensions of time to produce the documents, but that he had not complied with the notice. The Director noted that, as provided for in s 106ZPM of the HI Act, Medicare benefits would not be payable for services rendered or initiated by Dr Yoong.

35    It should be noted that on 25 July 2019, upon the provision of certain undertakings by Dr Yoong, I made orders that the decisions of the Director to undertake the review and to issue the notice to produce be stayed until further order of the Court; that the Chief Executive be restrained from taking any steps pursuant to or consequent upon the notice to produce until further order of the Court; and that the decision pursuant to s 106ZPM of the HI Act be set aside.

36    The progress of the matter was delayed. The matter was initially set down for hearing on 23 and 24 March 2020. Following the outbreak of the pandemic, the parties requested that the hearing be adjourned. The hearing commenced on 15 December 2020, but failed to finish within the estimated time and was eventually completed on 2 February 2021.

The legislation

37    The HI Act provides, inter alia, for the calculation and payment of Medicare benefits for medical and other services.

38    Part VAA of the HI Act establishes a Professional Services Review Scheme (the PSR Scheme).

39    The objects of the PSR Scheme are described in s 79A of the HI Act:

The object of this Part is to protect the integrity of the Commonwealth medicare benefits, dental benefits and pharmaceutical benefits programs and, in doing so:

(a)    protect patients and the community in general from the risks associated with inappropriate practice; and

(b)    protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice.

40    The PSR Scheme is concerned with “inappropriate practice” by “practitioners”. Under s 81 of the HI Act, “practitioners” include medical practitioners.

41    In respect of general practitioners, “inappropriate practice” is defined in s 82 of the HI Act to mean, “conduct in connection with rendering or initiating services…such that a Committee could reasonably conclude that … the conduct would be unacceptable to the general body of general practitioners”.

42    In National Home Doctor Service Pty Ltd v Director of Professional Services Review (2020) 276 FCR 338 (NHDS), Griffiths J observed that the PSR Scheme has four tiers, each tier providing for decisions to be made by different administrative decision-makers. Those tiers are as follows:

(a)    Tier 1—a request by the Chief Executive to the Director to review the provision of services: Div 3, ss 86–87;

(b)    Tier 2—a decision by the Director as to whether or not to undertake the review, the undertaking of any review, and then a decision as to whether to take no further action, enter into an agreement, or make a referral to a Committee: Div 3A, ss 88–94;

(c)    Tier 3—a referral by the Director to a Committee to investigate whether the person engaged in inappropriate practice, and investigation by the Committee: Divs 3A and 4, ss 93 and 95–106N;

(d)    Tier 4—the imposition of sanctions by the Determining Authority if the Committee makes a finding that the person engaged in inappropriate practice: Divs 5 and 5A, ss 106Q–106XB.

43    The decision of the Chief Executive under review was made at Tier 1, under Div 3 of Part VAA. That Division provides, relevantly:

86    Requests by Chief Executive Medicare to Director to review provision of services

(1)    Subject to subsection (1A), the Chief Executive Medicare may, in writing, request the Director to review the provision of services by a person during the period specified in the request.

…

(1A)    If the Chief Executive Medicare becomes aware that the circumstances in which services were rendered or initiated by a person constitute a prescribed pattern of services, the Chief Executive Medicare must make a request under subsection (1) in relation to the services.

(2)    The period specified in the request must fall within the 2 year period immediately preceding the request.

(3)    The request must include reasons for the request.

…

87    Chief Executive Medicare must notify person of request

(1)    If the Chief Executive Medicare requests the Director to review the provision of services by a person, the Chief Executive Medicare must, within 7 days after making the request, give the person written notice of the request.

(2)    Failure to comply with subsection (1) does not affect the validity of the request.

44    The decision of the Director to undertake the review was made at Tier 2, under Div 3A of Part VAA. That Division provides, relevantly:

88A    Director must decide whether to review

(1)    If the Chief Executive Medicare requests the Director to review the provision of services by a person, the Director must, within 1 month after receiving the request, decide whether or not to undertake the review.

(2)    The Director must decide to undertake the review if, after considering the request and any other relevant information the Director has obtained, it appears to the Director that there is a possibility that the person has engaged in inappropriate practice in providing services during the review period.

(3)    If the Director does not make a decision under subsection (1) within the period of 1 month specified in that subsection, the Director is taken to have decided, at the end of that period, to undertake the review.

(4)    The Director must give written notice of the decision to:

(a)    the person; and

(b)    the Chief Executive Medicare.

(5)    The notice must be given within 7 days after the decision is made but failure to give the notice within that time does not affect the validity of the decision.

(6)    If the Director decides to undertake the review, the notice given to the person under review under paragraph (4)(a) must set out the terms of section 89B.

(7)    Failure to comply with subsection (6) does not affect the validity of the decision.

(8)    If the Director decides not to undertake the review, the notice given to the Chief Executive Medicare under paragraph (4)(b) must include the grounds for the decision.

88B    Scope of Director’s review

If the Director decides to undertake the review, he or she:

(a)    may review any or all of the services provided by the person under review during the review period; and

(b)    may undertake the review in such manner as he or she thinks appropriate; and

(c)    in undertaking the review, is not limited by the reasons included in the request under subsection 86(3).

89    When Director must review

If:

(a)    the Chief Executive Medicare makes a request (the current request) to the Director to review the provision of services by a person; and

(b)    the Director decided not to undertake a review in relation to the most recent previous request made by the Chief Executive Medicare in relation to the person;

the Director must undertake a review in relation to the current request, and subsections 88A(4) to (6) and section 88B apply as if the Director had decided to undertake the review.

…

89C    Director’s action following review

(1)    Following a review of the provision of services by a person, the Director must either:

(a)    make a decision under section 91 to take no further action in relation to the review; or

(b)    give the person under review:

(i)    a written report setting out the reasons why the Director has not made a decision under section 91; and

(ii)    an invitation to make written submissions to the Director, within 1 month, about the action the Director should take in relation to the review.

(2)    If the Director gives the person under review a report and invitation under paragraph (1)(b), the Director must, as soon as practicable after taking into account any submissions made as mentioned in subparagraph (1)(b)(ii):

(a)    decide to take no further action in relation to the review in accordance with section 91; or

(b)    enter into an agreement with the person under review under section 92; or

(c)    make a referral to a Committee under section 93.

…

91    Decision to take no further action

(1)    The Director may decide to take no further action in relation to a review if he or she is satisfied that:

(a)    there are insufficient grounds on which a Committee could reasonably find that the person under review has engaged in inappropriate practice in providing services during the review period; or

(b)    circumstances exist that would make a proper investigation by a Committee impossible.

(2)    Within 7 days after making a decision to take no further action in relation to a review, the Director must give the Chief Executive Medicare and the person under review:

(a)    written notice of the decision; and

(b)    a written report setting out the grounds for the decision.

…

45    It is unnecessary to specifically set out the provisions of Divs 4, 5 and 5A of the HI Act, since the process has not reached Tier 3 and Tier 4.

Ground 1: Denial of procedural fairness

46    Ground 1 of the Second Further Amended Originating Application alleges that a breach of the rules of natural justice occurred in connection with the making of the Chief Executive’s decision to make a request to the Director, and the Director’s decision to undertake the review. These allegations are of denial of procedural fairness.

47    However, in oral submissions, Dr Yoong’s counsel indicated that it was no longer alleged that procedural fairness had to be afforded in respect of the Director’s decision to undertake the review.

The Submissions

48    Dr Yoong submits that he was denied procedural fairness by the Chief Executive in exercising her power under s 86(1) of the HI Act to request that the Director review his provision of services in two respects. The first is that the Chief Executive failed to provide information which Dr Yoong had requested and needed in order to make informed submissions in response to the delegate’s concerns. The second is that the Chief Executive failed to give Dr Yoong all the information on which the concerns were based.

49    The delegate’s letter of 19 February 2019 had indicated that the concerns were based principally upon services provided by Dr Yoong under nine MBS Items being at statistical “variance to peers”. Dr Yoong had requested further information about the data sets, statistical processes and calculations relied upon by the Chief Executive. Dr Yoong had also asked for an explanation as to why his practice had been compared with all general practitioners active under Medicare, when a more appropriate cohort would be vocationally-registered general practitioners working full time in the CBD of a State capital city. The Chief Executive did not provide the requested information.

50    The Chief Executive disclosed material under discovery in the proceeding that had not been provided earlier to Dr Yoong. That material included additional percentile data used to analyse Dr Yoong’s practice. For example, the new data shows that some Items were rendered on a very small number of occasions over the review period. Dr Yoong submits that if he had been provided with this material, he would have made submissions about its significance.

51    The delegate’s letter of 19 February 2019 had stated, “You are invited to provide a written submission in relation to the concerns detailed below…If you choose not to provide a written submission, I will make my decision based on the information currently available”. Dr Yoong was invited to make a submission addressing each concern, and to include information which might be relevant to the concerns. In the Guide to preparing written submissions which accompanied the letter, there was a statement to Dr Yoong that “If we have provided you with data, consider using it to help illustrate your response”.

52    Dr Yoong initially submitted that the delegate’s conduct and communications gave rise to a legitimate expectation that he would be afforded procedural fairness and, having made that commitment, the Chief Executive was obliged to act accordingly. However, Dr Yoong’s counsel indicated in the course of addresses that this submission was not pursued.

53    Dr Yoong submits that the Chief Executive has an obligation to provide the relevant practitioner with a reasonable opportunity to persuade the Chief Executive not to make a request pursuant to s 86(1) of the HI Act. Dr Yoong relies upon the principle that in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness, and submits that such an obligation is consistent with the PSR Scheme as a whole.

54    Dr Yoong seeks to distinguish earlier cases which held that there is no requirement of procedural fairness at the stage of referral to the Director on the basis that the current statutory scheme is quite different. Dr Yoong relies upon the judgment of Griffiths J in NHDS for the proposition that the Director has an implied obligation under s 89C of the HI Act to provide a reasonable opportunity to the practitioner to persuade the Director not to refer the matter to a Committee. Dr Yoong submits that, by parity of reasoning, there is a similar obligation upon the Chief Executive before making a request pursuant to s 86(1) of the HI Act.

55    Dr Yoong’s counsel accepted in the course of addresses that:

The points that we make about the first decision are exactly the same as the points we make [about] the second decision. So… if your Honour finds against us on the first decision, then we lose on the second decision and the third decision as well.

56    Dr Yoong’s counsel also stated that, “We don’t say that procedural fairness had to be afforded in relation to the acceptance of the referral”.

57    Accordingly, Dr Yoong accepts that if the Chief Executive’s decision under s 86(1) of the HI Act is held to be valid, then he would also fail upon his challenge to the Director’s decision under s 88A(2) to undertake the review.

58    The Chief Executive submits that consideration of the PSR Scheme as a whole demonstrates that procedural fairness is excluded at the stage of decision-making under s 86(1). They submit that earlier cases which held that there is no obligation of procedural fairness at the stage of referral for investigation continue to be relevant and applicable. They submit that the relevant passages in NHDS have no application to s 86(1) of the HI Act.

Whether the Chief Executive is under an obligation to provide procedural fairness when making a request that the Director review the provision of services

59    On 15 April 2019, the Chief Executive requested, pursuant to s 86(1) of the HI Act, that the Director undertake a review of Dr Yoong’s provision of services for the period from 1 May 2017 to 30 April 2018.

60    The Chief Executive’s delegate had earlier notified Dr Yoong on 19 February 2019 of her concerns and given him an opportunity to respond, but had not provided him with all the relevant documents available to her, nor all the information he had requested. Dr Yoong alleges that the failure to provide those documents and that information deprived him of a reasonable opportunity to make submissions about why the request should not be made.

61    The first issue is whether the Chief Executive owed Dr Yoong any obligation of procedural fairness when considering the exercise of her power under s 86(1) of the HI Act.

62    Section 86(1) of the HI Act provides that, “the Chief Executive Medicare may, in writing, request the Director to review the provision of services by a person during the period specified in the request”.

63    Section 86(1) was brought into a form close to its current form under s 30 of the Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth) (the 2002 Amending Act). The Explanatory Memorandum for the Bill introducing that provision stated:

New Section 86 provides that the Commission may request the Director to review the provision of services by a person. The request by the Commission relates to the provision of services during the period specified in the request. The request emanates from an examination by the Commission of the person’s Medicare and Pharmaceutical benefits claiming profile. On the basis of inferences drawn from the statistical data, the Commission may request a review by the Director. The Commission’s request is merely an initiating step within the PSR review process, following which particular aspects of the services provision (in other words, conduct) by a person may be reviewed by the Director and investigated by a Committee. The concept of the request by the Commission replaces the current ‘investigative referral’.

64    Section 86(1) of the HI Act does not expressly limit the circumstances in which the power may be exercised by the Chief Executive. The provision omits the requirement contained in an earlier iteration of s 86 that the Chief Executive consider whether the person under review, “may have engaged in inappropriate practice”. However, s 88A(2) requires the Director to undertake the review if it appears to the Director that, “there is a possibility that the person may have engaged in inappropriate practice during the review period”. On this basis, it may be inferred that the intention of s 86(1) is to require that the Chief Executive at least suspect that there is a possibility that the practitioner has engaged in inappropriate practice. However, since it is literally possible that any practitioner may have engaged in inappropriate practice, the “possibility” referred to in s 88A(2) must be understood to be one that is, not merely speculative, but based upon facts that reasonably ground the possibility. The same limitation must apply under s 86(1). I consider that s 86(1) requires that the Chief Executive must suspect on reasonable grounds that there is a possibility that the practitioner may have engaged in inappropriate practice during a specific period.

65    It may be observed that reg 27(1)(b) of the Human Services (Medicare) Regulation 2017 (Cth), provides that a prescribed function of the Chief Executive is to investigate the conduct of a person to decide whether to make a request under s 86(1) of the HI Act, “if there are reasonable grounds to suspect that a person has engaged in inappropriate practice”. That investigation occurs at a stage anterior to making a request to the Director to conduct a review under s 86(1). A regulation cannot generally be used to interpret a statutory provision, but the regulation is consistent with my construction of s 86(1).

66    The requirement that the Chief Executive suspect on reasonable grounds that there is a possibility that the person may have engaged in inappropriate practice is a fairly low barrier. In George v Rockett (1990) 170 CLR 104, the High Court held at 115:

Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam [1970] AC 942, at p. 948, “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.

67    The High Court also held at 112:

When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

68    It is unsurprising that the barrier is a fairly low one, given that a request under s 86(1) of the HI Act merely enlivens the power of the Director to undertake a review, or investigation. The request requires the Director to decide under s 88A(1) whether to undertake a review, and to conduct a review in the circumstances described in ss 88A(2) and 89.

69    It is well established that a person whose rights and interests may be affected by an administrative decision made under a statutory power is entitled to procedural fairness unless there is a clear contrary legislative intention. In Annetts v McCann (1990) 170 CLR 596, Mason CJ, Deane and McHugh JJ held at 598:

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.

That statement of principle was affirmed in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [74].

70    To similar effect, in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, Kiefel, Bell and Keane JJ held at [30]:

[I]n the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions.

71    A decision by the Chief Executive to make a request to the Director under s 86(1) of the HI Act does not directly affect the rights or interests of the practitioner concerned, but triggers a process that may eventually result in financial and reputational harm to the practitioner. The parties proceeded on the tacit basis that the principle from Annetts v McCann applies to a decision under s 86(1) even though the potential affectation of rights or interests is remote from the decision. In the absence of argument upon the issue, I will proceed upon the assumption that the principle is engaged.

72    Section 86 of the HI Act does not expressly exempt the Chief Executive’s exercise of power from a requirement to provide procedural fairness. If a clear statutory intention to exclude procedural fairness is to be discerned, it must be from the language, context, structure and purpose of the provisions comprising the PSR Scheme.

73    An important matter of context and structure is that the PSR Scheme provides a staged system of decision-making. The PSR Scheme has, as Griffiths J observed in NHDS, four tiers, each providing for different decisions to be made by different administrative decision-makers on the way towards a possible determination that a practitioner has engaged in inappropriate practice and of the consequences.

74    The PSR Scheme exposes practitioners to a process involving serious allegations with the potential for serious consequences, including findings of inappropriate practice, cessation of Medicare benefits and damage to personal and business reputation. In this context, it is unsurprising that the PSR Scheme has in place a carefully calibrated regime with inherent checks and balances to ensure a thorough and fair process. At various stages in the process, decision-makers are expressly required to take measures designed to provide procedural fairness.

75    However, as McHugh J observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [146]:

…Natural justice requirements are less likely to attach to decisions that are preliminary in nature. Examples are decisions to lay charges or commence disciplinary proceedings. The closer a decision is to having finality and immediate consequences for the individual, however, the more likely it is that natural justice requirements apply. …

76    In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 the plurality, quoting from South Australia v O’Shea (1987) 163 CLR 378 at 389, observed at 578:

It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process, viewed in its entirety, entails procedural fairness”.

77    Until this case, there has been no judicial consideration of whether the Chief Executive owes a practitioner obligations of procedural fairness when making a request under the current iteration of s 86(1) of the HI Act. However, several cases have held that that there is no such obligation under provisions concerning referral of possible inappropriate practice to the Director or to a Committee for investigation under earlier versions of the HI Act. Those cases have held, in the context of obligations of procedural fairness being provided for at later stages of a sequentially-stepped decision-making process, that procedural fairness does not apply at the initial stage of referral for investigation.

78    The first of these cases was Edelsten v Health Insurance Commission (1990) 27 FCR 56. In NHDS, Griffiths J at [147] distinguished Edelsten on the basis that since that decision, the PSR Scheme has been introduced and provides a significantly different process. In particular, His Honour noted that there are now the four tiers and that the second tier includes s 91 which gives the Director an express power to terminate a review. In NHDS, Griffiths J was concerned with s 89C, which applies following the conduct of a review by the Director, and requires the Director to choose between taking no further action, or entry into an agreement with the practitioner, or referral to a Committee. Edelsten was concerned with two decisions to make a referral to a Committee, which was at that time the step that initiated the review process. The current s 86(1) was inserted by the Health Insurance Amendment (Professional Services Review) Act 2012 (Cth) as a new initiating step, which precedes any referral to a Committee. The analysis in Edelsten as to whether any obligations of procedural fairness applied at the initiating step is instructive when considering the current s 86(1). In contrast, NHDS was concerned with procedural fairness at the later s 89C stage, so that Edelsten had much less relevance to that case.

79    In Edelsten, the Full Court considered s 82 of the HI Act, which gave the Minister, or delegate, an implied power to refer a matter to a Committee for investigation where there were reasonable grounds to suspect that a practitioner may have rendered excessive services. Section 94 then required the Committee, where it considered that the practitioner may have rendered excessive services, to conduct a hearing into the matter. The Full Court held that the rules of natural justice did not apply to either the delegate’s referral or the Committee’s decision. Justices Northrop and Lockhart held at 71:

We see no warrant for importing into any anterior stage of the matter, including the deliberations and decisions, if any, of the Minister’s delegate or the Committee at the s 94(c) stage, a requirement that procedural fairness be afforded to Dr Edelsten.

80    Justice Davies held at 73:

[The delegate’s] action did not breach principles of procedural fairness. [The delegate’s] reference merely initiated an inquiry; it did not decide or formally recommend anything. It would be inconsistent with the Act to imply any requirement as to notice to Dr Edelsten or as to giving to Dr Edelsten of a right to be heard at that stage of the proceedings. The Act lays down a complicated procedure protective of the position of medical practitioners…These provisions are lengthy and detailed and it is inconsistent with them that the Minister or his delegate should, at the initiating stage, be required to give particulars to the medical practitioner concerned or make extended inquiries of the medical practitioner concerned or of the patients of the medical practitioner.

81    The PSR Scheme commenced in 1994. In Yung v Adams (1997) 80 FCR 453, Davies J was concerned with s 86 of the HI Act, which then provided that, “The Commission may…refer to the Director the conduct of a person relating to…whether the person has engaged in inappropriate practice”. The scheme provided for the Director to dismiss a referral or set up a Committee (s 89), and for the Committee to hold a hearing if it considered that the practitioner may have engaged in inappropriate practice (s 101). Referring to s 86(1), Davies J held at 461:

The Health Insurance Commission was not obliged to provide Dr Yung with procedural fairness at that stage. What was done was simply to refer an issue to the Director for consideration.

On appeal, in Adams v Yung (1998) 83 FCR 248, this ruling was not challenged.

82    In Phan v Kelly (2007) 158 FCR 75, it was alleged that the applicant was denied procedural fairness in respect of a decision by the Director to set up a Committee. That argument was rejected by Tamberlin J, who held:

44     Accordingly, it is permissible to have regard to the scheme as a whole. Looking at the process in the present case in its entirety, the contested decisions of the Director and Committee were clearly part of, and directed to, the ultimate determination by the Determining Authority. They may be characterised as part of a single, sequentially-stepped decision-making process leading to a final outcome. This consideration leads to the conclusion that the legislative scheme is sufficiently exhaustive to indicate a legislative intent to exclude the application of additional measures to achieve procedural fairness.

…

46     In this case, I am satisfied that the statutory scheme, considered as a whole, exclusively provided for procedural fairness principles to the extent that the legislature intended those principles to apply.

83    The description given by Tamberlin J of “a single, sequentially-stepped decision-making process leading to a final outcome” remains apt. However, as I will later discuss, the express requirements of procedural fairness under the HI Act in its current form cannot be regarded as providing an exclusive or exhaustive code for procedural fairness.

84    In Daniel v Kelly (2003) 200 ALR 379, Ryan J was concerned with a form of s 86(1) of the HI Act that provided, relevantly, “[t]he Commission may, in writing, refer to the Director the conduct of a person relating to…whether the person has engaged in inappropriate practice in connection with rendering of services”. Section 88 required the Commission to send a copy of the investigative referral (after the referral had been made) to the person under review, accompanied by a notice inviting the person to make written submissions to the Director stating why the referral should be dismissed without setting up a Committee. In that case, the applicant’s principal complaint was that the Commission had applied a policy of “automatic referral” without consideration of the merits of his individual case. In the course of considering that ground, Ryan J stated at [26]:

Given that the process under consideration is an investigative one which may result in serious consequences for a medical practitioner, including the cancellation or suspension of rights conferred by statute, there is a presumption, not disputed by counsel for the respondents, that the practitioner will be accorded procedural fairness….

His Honour went on to hold that the Commission, in making the investigative referral, had failed to take into account relevant considerations.

85    In Kelly v Daniel (2004) 134 FCR 64, the Full Court dismissed an appeal from the judgment of Ryan J. The Full Court held at [82]:

…Section 86 confers upon the Commission a broad discretion to refer the question whether a practitioner has engaged in inappropriate practice to the Director. The Commission is obliged to take into account any explanation offered by the practitioner for what may be a temporary, and perhaps understandable breach of the rule. Its task is to consider not merely whether the number of services exceeds the number permitted under that rule, but whether the practitioner’s conduct is capable, potentially, of falling within the definition of “inappropriate practice” in s 82(1)(a). The Commission is certainly entitled, in our view, to exercise its discretion having regard to the fact that the practitioner has been counselled, and his conduct subsequently reviewed, without any apparent repetition of the breach, or likelihood of that breach recurring.

The Full Court’s view that the Commission was required to take into account any explanation offered by the practitioner suggests that the Full Court considered that procedural fairness must be provided in the exercise of the power under s 86(1) of the HI Act.

86    In Daniel v Kelly, it was conceded at first instance that s 86(1) of the HI Act in its extant form imposed obligations of procedural fairness upon the Commission, and the question does not seem to have been argued on appeal. That may have been because the relevant ground of review was whether the Commission had applied a policy without consideration of the merits of the case, not whether the practitioner had been denied procedural fairness. In any event, that case is distinguishable. The present iteration of s 86(1) allows the Chief Executive only to request that the Director review the provision of services, not to refer conduct to the Director for investigation. A referral under the iteration considered in Daniel v Kelly required the Director, under s 89(1), to conduct an investigation unless persuaded by the practitioner to dismiss the referral. Under the current iteration, a request by the Chief Executive does not compel the Director to undertake the review (subject to the exception under s 89 which is not relevant in this case). Accordingly, a referral by the Commission under the previous version of s 86(1) had a more direct impact upon the rights and interests of a practitioner than the current version.

87    A number of provisions under the PSR Scheme expressly require the taking of steps intended to provide a measure of procedural fairness. The content of these requirements, and the potential consequences of non-compliance, vary between provisions. The express requirements are:

    Section 87: If the Chief Executive requests the Director to review the provision of services, the Chief Executive Medicare must give the person written notice of the request within seven days (but failure to comply does not affect the validity of the request).

    Section 88A: The Director must give written notice of the decision as to whether to accept the request to the relevant person within seven days and, if the Director decides to undertake the review, the notice must set out the terms of section 89B (but failure to comply does not affect the validity of the decision).

    Section 89C(1): Following a review, if the Director does not make a decision under s 91 to take no further action, the Director must give the person under review a written report setting out the reasons why the Director has not made a decision under s 91 and an invitation to make written submissions to the Director about the action the Director should take.

    Section 89C(2): The Director must take into account any submissions made by the person under review in deciding whether to take no further action under s 91, or to enter into an agreement under s 92; or to make a referral to a Committee under s 93.

    Section 93(7): The Director must give to the person under review, the report prepared for the Committee within seven days (but failure to comply does not affect the validity of the referral).

    Section 102(1) and (2): If a Committee proposes to hold a hearing, it must give the person under review written notice of the time and place at least 14 days before the hearing.

    Section 103(1)-(3): The person under review is provided with express entitlements, including to attend the hearing, be accompanied by a lawyer or other person, call witnesses, question witnesses and address the Committee.

    Section 106H(4): A Committee must notify the person under review of any intention to make a finding of inappropriate practice, provide its reasons and give the person an opportunity to respond.

    Section 106KD(3): A Committee must give the person under review a written draft report of its preliminary findings and a notice inviting the person to provide written submissions suggesting changes to the draft report.

    Section 106KE: If the draft report does not contain a unanimous or majority finding of inappropriate practice, the Committee must provide the person with a written notice stating, inter alia, that no further action will be taken.

    Section 106L(3)-(5): The Committee must give its final report to the person under review and a written notice stating that a copy will be given to the Determining Authority, but if there is no unanimous or majority finding that the person engaged in inappropriate practice, a notice that, inter alia, no further action will be taken.

    Section 106QB(1)-(3): If the Director or the Determining Authority decides and gives notice that it would be impossible for an action specified in the agreement to take effect, the notice must set out the circumstances and the Director must, within seven days of giving or receiving the notice, give a copy of the notice to the person under review.

    Section 106R(3)-(4): The Determining Authority must give notice in writing of its decision (either ratifying or refusing to ratify the agreement) to the person under review within seven days after the decision is made or taken to have been made, and in the case of a refusal decision, the notice must set out the reasons for the refusal (but failure to comply with these requirements does not affect the validity of the decision).

    Section 106RB(1)-(3): If the Director or the Determining Authority decides and gives notice that it would be impossible for a proper draft determination or a final determination to be made by the Authority in relation to the person under review, the notice must set out the circumstances and the Director must, within seven days of giving or receiving the notice, give a copy of the notice to the person under review.

    Section 106S(3): If the Director gives the Determining Authority any information that the Director considers is relevant to the Authority making its draft determination or final determination, the Director must also give the information to the person under review at the time.

    Section 106SA(1)-(5): The Determining Authority must invite the person under review to make written submissions to the Authority about directions the Authority should make in the draft determination, and if the Director gives the Determining Authority further information after such an invitation has been made, the Authority must invite the person under review to make further submissions.

    Section 106T(1)-(2): The Determining Authority must take into account any submissions made by the person under review and give a copy of the draft determination to the person under review within one month of the draft determination, together with an invitation to make written submissions suggesting changes to any directions.

    Section 106UA: As soon as practicable after making a final determination, the Determining Authority must give a copy of it to the person under review.

88    It may be seen that where a decision-maker is required to provide procedural fairness, the PSR Scheme tends to specify the steps that must be taken to fulfil the obligation. In contrast, s 86 does not specify any requirement or content of procedural fairness.

89    Against this, it may be accepted that the PSR Scheme in its current form does not constitute an exhaustive code of procedural fairness. In NHDS, Griffiths J observed at [146]:

As noted, the Director did not submit that the PSR Scheme in the HI Act constituted an exhaustive procedural code which precluded the implication of any additional requirements of procedural fairness. Nor would I have accepted any such submission. The richness of the statutory procedural requirements in the multi-stage process under the PSR Scheme are not exhaustive. In particular, the procedural fairness rights and obligations under tier three do not deny the need for procedural fairness at the tier two level...

An example of an unstated obligation of procedural fairness is, as Griffiths J held at [142]-[146], that the Director’s obligation under s 89C of the HI Act to provide a practitioner with an opportunity to make a submission is an obligation to provide a reasonable opportunity. Another example is that s 106(1) provides that the procedure for the conduct of a hearing by a Committee is within the discretion of the presiding member, but there obviously exist implied requirements of procedural fairness, including providing the practitioner with a reasonable opportunity to make submissions upon contentious matters of procedure and upon the substantive issues.

90    Nevertheless, where a decision-maker is positively required to give the person under review an opportunity to be heard as to whether a particular decision should be made, the PSR Scheme tends to make the requirement express, and does not leave it to implication. For example, ss 89C(1), 103(1)(g) and 106H(4) specify that the practitioner must be permitted to make submissions before the relevant decision is made. This is reinforced by s 80(11) which states that, “[p]rovision is made throughout the scheme for the person under review to make submissions before key decisions are made or final reports are given.” The fact that s 86 of the HI Act does not expressly provide for a right to make submissions as to why the Chief Executive should not make a request to the Director, while not of itself determinative, strongly suggests that no obligation of procedural fairness is implied.

91    The Chief Executive’s request under s 86(1) of the HI Act is the step that initiates the PSR review. Such a request does not itself affect any substantive rights. To adopt the language of Northrop and Lockhart JJ in Edelsten at 70, the request is no more than a step in an administrative process that may lead to an ultimate or operative determination, and is remote from any such consequences. And, to adopt the language of Davies J in that case at 73, the request does not decide or formally recommend anything.

92    The Chief Executive’s powers of investigation under the HI Act are limited, and do not include coercive powers. In contrast, the Director’s powers are wider, and include the power to require a practitioner to provide documents and give information (s 89B). The powers of a Committee are wider still, and include conducting hearings (s 101). As Griffiths J observed in NHDS at [27]:

It should also be noted that the Chief Executive Medicare has limited investigative powers to obtain information that may be relevant to his or her consideration of whether or not to make a request to the Director to review the provision of services by a person or a practitioner. It is evident that a decision whether to make such a request will generally be based upon the Chief Executive Medicare’s review of statistical data concerning a practitioner’s Medicare billing and any other information which the Chief Executive Medicare obtains by other means, including a voluntary interview with one or more practitioners, as occurred in this case.

93    This is the context in which the Chief Executive makes a request under s 86(1) of the HI Act initiating consideration by the Director as to whether to undertake a review. The context demonstrates why a fairly low barrier is imposed for the Chief Executive’s decision. The Explanatory Memorandum for the Bill introducing the 2002 Amending Act indicated that a review may be requested on the basis of inferences drawn from the statistical data. This context also demonstrates that the Chief Executive’s decision is envisaged to be made without substantial investigation of the kind required at later stages.

94    A practitioner’s rights and interests may be directly affected at the second, third and fourth tiers of the PSR Scheme, culminating in a Determining Authority making a final determination under ss 106TA and 106U, which may have direct financial and reputational consequences. In that context, the PSR Scheme expressly imposes increasing requirements of procedural fairness at various stages under those tiers. In view of the opportunities at Tiers 2, 3 and 4 for a practitioner to make submissions that may head off any further progression of an inquiry, it is unsurprising that there would be no requirement to provide any such opportunity at the initiating stage.

95    In the context of the imposition of substantial obligations of procedural fairness at later stages, it seems unlikely that the legislative intention is that a practitioner should have an opportunity to try to persuade the Chief Executive to not make a request under s 86(1) of the HI Act. A requirement of this type would be administratively cumbersome and significantly repetitious. It is unlikely that such a requirement would be implied, rather than being expressly stated.

96    As McHugh J observed in Miah at [146], natural justice requirements are less likely to attach to decisions that are preliminary in nature. His Honour gave examples of such preliminary decisions as being the laying of charges or the commencement of disciplinary proceedings. A decision under s 86(1) to request a review occurs at an even more preliminary stage.

97    In addition, it may be noted that under s 86(1A) of the HI Act, if the Chief Executive becomes aware that the circumstances in which services were rendered or initiated constitute a prescribed pattern of services, the Chief Executive must make a request under s 86(1) in relation to the services. In view of the obligation to make such a request, there cannot be any implied requirement to allow a practitioner to make submissions before the request is made. That there is no implied obligation of procedural fairness under s 86(1) in one circumstance tends to support the view that there is no general obligation of that kind.

98    Section 87(1) provides that if the Chief Executive requests the Director to review the provision of services by a person, the Chief Executive must give the person written notice of the request. The express imposition of that obligation of procedural fairness after a decision under s 86(1) is made suggests that there is no implied anterior obligation to give the practitioner notice.

99    Although Griffiths J in NHDS considered that the opportunity to head off progression of the process at s 89C of the HI Act was a reason for implying an obligation of procedural fairness, the content and form of s 86(1) is quite different. For the reasons that follow, I do not accept Dr Yoong’s submission that the reasoning of Griffiths J in NHDS as to procedural fairness at the s 89C stage can be transposed into an implication of procedural fairness at the s 86(1) stage.

100    In NHDS, the Director had decided to refer the applicant to a Committee pursuant to s 93 of the HI Act to investigate whether the corporate applicant may have engaged in inappropriate practice by permitting or causing 56 specified medical practitioners allegedly employed by the applicant to engage in conduct that constituted inappropriate practice. The Director had earlier provided a written report to the applicant as was required under s 89C(1)(b) which had led the applicant to believe that only 15 medical practitioners would be the subject of potential referral to a Committee. His Honour held that the applicant had been denied an opportunity to make a submission under s 89C(2) that the Director could not reasonably be satisfied that the conduct of those 56 practitioners involved inappropriate practice and to terminate the review. The applicant had thereby been denied procedural fairness.

101    In order to understand the basis of Griffiths J’s decision, it is necessary to consider the relevant statutory provisions. Under s 89C(1), after conducting a review, the Director must either: make a decision to take no further action; or give the person under review a written report setting out the reasons for not deciding to take no further action, and an invitation to make written submissions about the action the Director should take. Section 89C(2) provides that the Director must take into account any such submissions, and decide whether to take no further action in accordance with s 91; or enter into an agreement with the person under s 92; or make a referral to a Committee under s 93.

102    Justice Griffiths held:

131    Unsurprisingly, there was no serious contest as to the relevant legal principles concerning procedural fairness. The Director accepted that the statutory scheme imposed various procedural fairness obligations on her and that the content of those obligations had to be determined in the context of the statutory scheme. The Director submitted, however, that, in determining the content of procedural fairness obligations, it was relevant to take into account that a s 93 referral occurs at a relatively early stage of the review process and prior to an investigation of whether inappropriate practice has in fact occurred, not to mention well before the imposition of any sanction. It was submitted that a s 93 referral “lacks any quality of finality” and “is not a substantive determination”.

132    While it is relevant to take into account the different tiers of decision-making under the PSR Scheme, I consider that the Director has overstated the relevance of that matter in determining the content of procedural fairness requirements in tier 2. Different considerations may arise with a multi-staged decision making process which, unlike the legislative regime here, does not contain its own rich supply of procedural fairness requirements. It is also relevant to take into account the essentially investigative nature of tier 2 and that the person under review will have a right to be heard before the Committee if a referral is made under s 93. Of particular relevance and significance, however, is the Director’s obligation under s 89C to make a decision under s 91(1) to take no further action in relation to the review, rather than enter into a s 92 agreement (which was not an option in the case of NHDS) or make a referral under s 93.

(Underlining added.)

103    His Honour then referred to observations made by the Victorian Court of Appeal in Byrne v Marles (2008) 19 VR 612, and continued:

134    These observations are directly pertinent to the proceeding here having regard to the terms and effect of s 89C(1) and with its particular reference to s 91. A right to be heard by the person under review affords that person an opportunity to persuade the Director to terminate the complaint at a relatively early stage. That right is different from the rights which the person under the review who is the subject of a subsequent referral has before the Committee.

104    His Honour concluded:

142    Procedural fairness obliged the Director to provide NHDS with a reasonable opportunity to address those three elements [of inappropriate practice], which required the Director to provide NHDS with appropriate particulars and/or information in respect of those three matters with reference to the 56 identified NHDS practitioners. There is an obvious connection between the provision of a s 89C report and the obligation of the Director to invite submissions as to the future course of action, as required by s 89C(1)(b)(ii)…

143    There is also a plain connection between the making of those submissions and the effect they may have on the Director’s decision under s 93, as is emphasised by the explicit obligation on the Director under s 89C(2) to take into account those submissions in deciding whether or not to make a referral to a Committee.

144    The Director effectively shifted the goal posts after receiving NHDS’s submissions so as to bring to the forefront of the Director’s further deliberations the conduct of 56 other NHDS practitioners…

(Underlining added.)

105    The Director has express obligations of procedural fairness under ss 89C(1) and (2) of the HI Act to provide a written report, to invite submissions as to the course the Director should take and to take into account any submissions. I understand Griffiths J to have held that these obligations imply a requirement that the Director’s report must give the practitioner a reasonable (or fair) opportunity to seek to persuade the Director not to make a referral to a Committee and, instead, to take no further action. His Honour held that the failure of the report to disclose the allegation that the conduct of 56, rather than only 15, practitioners may involve inappropriate practice had deprived the applicant of the reasonable opportunity that was required to be given.

106    It is important to understand the parameters and limits of Griffiths J’s reasons. First, the Director had accepted that obligations of procedural fairness obligations were imposed upon her. That concession was correctly made since, relevantly, s 89C of the HI Act required the Director to provide a written report to the practitioner and take into account submissions made in response to the report. Accordingly, his Honour’s reasons at [131]-[134] were not concerned with whether there was an obligation of procedural fairness, but with the content of the obligation. Second, his Honour was only dealing with the content of procedural fairness after the requirement to provide a report under s 89C(1)(b) had been engaged. That report is only provided after the Director has made an initial decision not to take no further action under s 91. His Honour’s reasons do not suggest that the Director is required to provide an opportunity to the practitioner to be heard prior to making the initial decision as to whether to take no further action.

107    I do not accept that Griffiths J’s views upon the requirements of procedural fairness at the s 89C stage can be translated into a conclusion that an obligation of procedural fairness exists at the s 86(1) stage. In fact, his Honour’s reasons are against the proposition that the Chief Executive must give the practitioner an opportunity to make submissions as to why a request should not be made. In respect of the Director’s decision under s 88A as to whether to undertake a review, his Honour stated at [67]:

…Although there is no explicit statutory provision which requires the Director to invite the person the subject of the requested review to make submissions or give information as to whether or not the Director should undertake the review, I see no reason why the Director could not, in his or her discretion, extend an invitation to that effect (bearing in mind the 1 month time period within which the Director is required to make a decision whether or not to conduct the review) or, indeed, why (with or without an invitation) the person the subject of the request could not provide submissions or information to the Director before that time expired on the question whether or not the Director should undertake the requested review. I emphasise that I am not suggesting that these are procedural fairness requirements. Rather, they are discretionary.

(Emphasis in the original.)

His Honour’s view that the Director is not required to provide procedural fairness when considering whether to undertake a review must apply with at least equal force to the position of the Chief Executive under s 86(1) when deciding whether to request that the Director undertake a review.

108    In my opinion, the Chief Executive does not owe a practitioner an obligation of procedural fairness when exercising the power under s 86(1) of the HI Act. In particular, there is no obligation to give the practitioner an opportunity to make submissions as to why a request to the Director should not be made.

109    As a matter of administrative practice, the Chief Executive’s delegate provided Dr Yoong with particulars for concerns and invited him to make submissions addressing those concerns. However, there was no implied obligation upon the Chief Executive to provide that opportunity.

110    As I have mentioned, Dr Yoong’s counsel accepted that if the Chief Executive’s decision under s 86(1) of the HI Act is held to be valid, then he would also fail upon this challenge to the Director’s decision to undertake the review under s 88A(2). In any event, I would not have accepted that the Director is obliged to provide the practitioner with an opportunity to make submissions when deciding whether or not to undertake a review. The considerations against that position under s 86(1) apply analogously in respect of s 88A(2). In addition, ss 88A(3) to (7) tell against any implication of procedural fairness.

111    Ground 1 of the Second Further Amended Originating Application must be rejected.

Whether Dr Yoong was provided with a reasonable opportunity to make submissions

112    In case I am wrong in my conclusion that the Chief Executive owes no obligation of procedural fairness when making a decision under s 86(1) of the HI Act, I will proceed to make findings upon an assumption that such an obligation was owed to Dr Yoong. It must be recognised that this exercise assumes a substantial degree of artificiality.

113    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, the High Court held at [26]:

It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case….

114    I will proceed on the basis that the assumed obligation of procedural fairness required that Dr Yoong be provided with a reasonable opportunity to make submissions as to why the Chief Executive ought not request that the Director review Dr Yoong’s provision of services. It is necessary to consider whether that required the Chief Executive to provide Dr Yoong with the information and documents he had requested. The answer is influenced by the statutory context and the nature and extent of the information and documents that were provided and not provided.

115    Dr Yoong submits that procedural fairness required that he be provided with further information about the data sets, statistical processes and calculations he had requested, and an explanation as to why his practice had been compared with all general practitioners active under Medicare (when a more appropriate cohort would be vocationally-registered practitioners working full time in the CBD of a State capital city).

116    In addition, Dr Yoong contends that relevant material, such as additional data about the calculation of the percentiles, was disclosed under discovery, but should have been provided to him before the request to the Director was made. Dr Yoong submits that the absence of this information and material meant that he was deprived of the ability to make adequate submissions to the Chief Executive. He argues that he would have been able to submit, for example, that data provided under discovery in relation to Items 5060, 56022, 58909, 56223 and 56507 shows that they were rendered on a very small number of occasions over the review period, which potentially rendered insignificant the value of any conclusions to be drawn from them.

117    An important matter of statutory context is that the barrier to making a request under s 86(1) of the HI Act, namely that Chief Executive must suspect on reasonable grounds that there is a possibility that the person may have engaged in inappropriate practice during a specific period, is fairly low. Another important matter is that a request is merely the procedure that initiates a sequentially-stepped decision-making process, which provides for procedural fairness at a number of stages before an ultimate decision is made. These matters suggest that any opportunity for procedural fairness is not intended to extend to disclosure of documents and information to the extent that might be required in the subsequent investigatory and disciplinary processes.

118    Dr Yoong was provided with detailed information concerning the Chief Executive’s delegate’s concerns about his practice. The letter of 19 February 2019 described the statistical data relied upon.

119    Dr Yoong was given the opportunity to address those concerns by participating in an interview and providing written submissions, which were taken into account. He made detailed submissions about flaws in the statistical data relied upon by the Chief Executive. He submitted, for example, that the comparison of his full-time, CBD-based practice with the practices of all practitioners was flawed, that the data was for an earlier time period than the period with which the review would be concerned and that the numbers of referrals for certain Items were so low that any statistical analysis would be meaningless.

120    In Edelsten, Northrop and Lockhart JJ held at 71:

In our opinion [the decision-makers] are not limited to a consideration of the services rendered to a particular patient with respect to specifically defined symptoms, disease or injury. If there is a pattern of services rendered by Dr Edelsten to a large number of patients which is unusual in relation to the pattern of services which it is considered are likely to be provided by the average general practitioner during the same or substantially the same period in a similar location, that is a legitimate matter to consider in deciding whether there may be evidence of the rendering of excessive services.

121    Similarly, under the current iteration of the HI Act, it is open to the Chief Executive to take into account the statistical variance of Dr Yoong’s provision of particular services compared with other practitioners providing the same services. The statistical variations in this case, showed that Dr Yoong’s provision of seven Items of services exceeded that of 95% of all practitioners and were capable of providing reasonable grounds for causing the Chief Executive to suspect inappropriate practice.

122    Dr Yoong’s submission is that the assumed requirement of a reasonable opportunity to make submissions required that he be provided with further information concerning the base data upon which the statistics relied. He did in fact make submissions about flaws in the statistical analysis. His contention must be that the further information and documents would have allowed him to make better or more detailed submissions. However, a requirement that he have a reasonable opportunity to make submissions does not require that he be provided with an ideal opportunity. When consideration is given to the extent of the information provided to Dr Yoong, the submissions he was able to make and the preliminary nature of the Chief Executive’s function under s 86(1) of the HI Act, it must be concluded that he was provided with a reasonable opportunity to make submissions as to why the Chief Executive should not make a request to the Director.

123    Accordingly, even if it is assumed that the Chief Executive was required under s 86(1) of the HI Act to provide Dr Yoong with a reasonable opportunity to make submissions as to why a request ought not be made, such an opportunity was provided.

124    Ground 1 of the Second Further Amended Originating Application must be rejected for this additional reason.

Ground 2: Improper exercise of power

125    Ground 2 of the Second Further Amended Originating Application raises three separate grounds of review.

126    First, the Chief Executive and the Director each failed to take into account relevant considerations.

127    Second, they took into account irrelevant considerations.

128    Third, the decisions were each so unreasonable that no reasonable person could have made each respective decision.

Irrelevant and relevant considerations

129    Dr Yoong was compared with “all general practitioners active under Medicare” in the period from 1 January 2017 to 31 December 2017. He submits that the statistics relied upon by the Chief Executive were for a cohort so far removed from his circumstances that the conclusions drawn were invalid.

130    The distinguishing features are said to include that Dr Yoong is vocationally-registered, and only vocationally-registered practitioners may use MBS Items 36, 44, 5040, 5060, whereas 23% of the practitioners in the data-set used by the delegate were not vocationally-registered. Dr Yoong works full-time Monday to Friday and after-hours on weekdays and on weekends as needed, whereas in the data-set, practitioners work, on average, only 56% of full-time equivalent hours. Further, the delegate compared the services provided by Dr Yoong in the period from 1 May 2017 to 30 April 2018, against data taken from a different period, 1 January 2017 to 31 December 2017. Dr Yoong argues that relevant conclusions could only have been drawn from a comparison between his practice and all vocationally-qualified general practitioners working full-time in general practice in the CBD of a capital city.

131    Dr Yoong submits that statistical comparison with all general practitioners active under Medicare was an irrelevant consideration. He submits that by not considering the statistics applicable to all vocationally-qualified general practitioners working full-time in general practice in the CBD of a capital city, the delegate failed to take into account a relevant consideration.

132    Another aspect of this ground concerns the alleged failure of the Chief Executive to consider the content of Dr Yoong’s interview of 12 October 2017. Dr Yoong alleges that the delegate stated that she had neither listened to a recording, nor read a transcript, of the interview with Dr Baker. Dr Yoong submits that interview was highly relevant because the decision was based wholly upon analysis of a statistical data-set, whereas, in the interview, he had explained the features of his practice which distinguished it from the data-set.

133    Dr Yoong’s submissions misapprehend the grounds of judicial review in s 5(2)(a) of the ADJR Act (taking into account an irrelevant consideration in the exercise of a power) and s 5(2)(b) (failing to take into account a relevant consideration in the exercise of a power). His submissions assume that any factual matter capable of bearing upon a decision is a “relevant consideration”, and that any factual matter which a decision-maker has misunderstood is an “irrelevant consideration”.

134    However, as Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40:

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

135    Justice Mason also held at 39-40 that a “relevant consideration” is a factor that a decision-maker is bound to take into account either expressly or by implication having regard to the subject matter, purpose and scope of the statute.

136    Dr Yoong has not identified why, as a matter of statutory construction, the Chief Executive is bound not to take into account the data-set of all general practitioners active under Medicare. The HI Act contains no express prohibition upon taking that matter into account, nor can any implied prohibition be found in the subject matter, scope and purpose of the HI Act. To the contrary, in Edelsten at 71, it was held that it is legitimate to consider a pattern of services which is unusual in relation to the pattern of services likely to be provided by the average general practitioner during substantially the same period in a similar location.

137    Further, Dr Yoong has not identified why, as a matter of statutory construction, the Chief Executive is bound not to make a comparison between services provided by a practitioner in one period and all practitioners in an overlapping but somewhat different period. Nor is any such prohibition to be found, expressly or impliedly, in the HI Act.

138    Dr Yoong has not identified why, as a matter of construction, the HI Act binds the Chief Executive to only consider statistics applicable to all vocationally-qualified general practitioners working full-time in general practice in the CBD of a capital city. Nor is any such requirement implied under the HI Act.

139    Finally, Dr Yoong has not demonstrated that the delegate failed to consider Dr Yoong’s interview of 12 October 2017. Dr Baker’s report and an audio file of the interview was in the material before the delegate. Although Dr Yoong has recounted a conversation with the delegate on 26 March 2019 when she said that she had not considered the content of the interview, the conversation preceded the decision by almost three weeks. In any event, the terms of the decision letter of 15 April 2019 make clear that the delegate did consider information provided by Dr Yoong at the interview with Dr Baker. Further, my conclusion that procedural fairness is not required when making a decision under s 86(1) of the HI Act means that a practitioner’s statements at an interview do not constitute a mandatory relevant consideration.

140    Accordingly, Ground 2 cannot succeed to the extent that it alleges that the Chief Executive failed to take into account relevant considerations and took into account irrelevant considerations.

141    It is unclear whether Dr Yoong presses allegations of failure to take into account relevant considerations and taking into account irrelevant considerations in respect of the Director’s decision to undertake the review. Even if such allegations are made, for the same reasons, they cannot succeed.

Unreasonableness

142    Dr Yoong alleges that the Chief Executive’s decision was so unreasonable that no reasonable person could have made the decision.

143    Dr Yoong submits, first, that the subject matter of the Chief Executive’s decision was very serious, potentially having very serious reputational and financial consequences. He submits that the delegate ought to have approached the decision conscious of the gravity of the matter and the inherent unlikeliness of his having engaged in inappropriate practice. He submits that delegate’s mechanical reliance on the statistical data was unreasonable, and that, had she considered the shortcomings of the data-set, she could not rationally have drawn such a serious conclusion on the basis of such imperfect and inappropriate figures.

144    Second, Dr Yoong submits that the Chief Executive relied upon statistical data in circumstances where that data was not capable of rationally supporting the conclusions drawn. Dr Yoong submits that a very small number of referrals of a particular MBS Item had caused him to be at a statistically very high percentile of “all general practitioners active under Medicare”. For example, Dr Yoong provided a service under MBS Item 5040 for an average of three patient consultations per week in the 12 month period. Dr Yoong submits that no reasonable person could have decided to request review of that provision of services in the circumstances. He also submits that in respect of Items 56022, 58909, 56223 and 56507, the number of claims by his patients for these Items is so small that no rational conclusion about his practice could be based upon them.

145    Third, Dr Yoong submits that it was unreasonable to take into account Items 56022, 58909, 56223 and 56507, which were for radiological procedures not performed or billed by him. These referrals were for procedures carried out by specialists who submitted claims for their patients through Medicare.

146    The decisions in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and subsequent cases establish that:

(1)    There is a legal presumption that the legislature intends that a statutory discretionary power be exercised reasonably.

(2)    There is an area of decisional freedom left to a decision-maker exercising discretionary power. In assessing the boundaries of this area, and ultimately whether the decision is unreasonable, a Court must give close attention to the scope and purpose of relevant statutory provisions.

(3)    In determining whether a decision is vitiated for legal unreasonableness, the Court’s task is strictly supervisory. It does not involve the Court reviewing the merits of the decision or substituting its own view as to how the discretion should be exercised for that of a decision-maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.

(4)    Where a decision-maker’s reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. The applicant must do more than persuade the reviewing Court that another rational decision-maker might emphatically have disagreed with the reasoning process and findings of the person who made the impugned decision.

(5)    The test of unreasonableness is a stringent one and is rarely established.

(See also M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [23]; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [58]; Minister of Immigration and Border Protection v SZVFW (2017) 248 FCR 1 at [38] and SZTDD v Minister of Immigration and Border Protection [2016] FCA 136 at [35]).

147    The Chief Executive must decide, under s 86(1) of the HI Act, whether to make a request that the Director review the provision of services by a practitioner. That requires the Chief Executive to consider whether she suspects on reasonable grounds that there is a possibility that the practitioner may have engaged in inappropriate practice during a particular period. That is a fairly low barrier. That it is a low barrier is unsurprising because, first, the Chief Executive’s ability to investigate is limited, and, second, a request under s 86(1) merely initiates a process that may lead to review and, in that sense, is preliminary and does not directly affect a practitioner’s rights and interests.

148    The making of a request by the Chief Executive under s 86(1) of the HI Act will not necessarily have the serious consequences noted by Dr Yoong. The Director may decide not to undertake the review, and there are subsequent opportunities for the practitioner to make submissions as to why the process should end.

149    The Chief Executive’s delegate did not merely place, “mechanical reliance on the statistical data”. While she took into account the statistical variance between Dr Yoong’s provision of the relevant services and the provision of those services by all other practitioners, she also took into account the explanations provided by Dr Yoong during the interview with Dr Baker. Dr Yoong’s provision of services under seven MBS Items was greater than the provision of those services by 95% of other general practitioners. The statistical variance, together with the delegate’s view that Dr Yoong’s explanations did not wholly explain that variance, supported the delegate’s concerns that Dr Yoong may have rendered some services that were not clinically relevant, or which did not fulfil the requirements for the relevant MBS Item. There was an evident and intelligible justification for the decision to make the request of the Director.

150    The arguments raised by Dr Yoong against the Chief Executive’s conclusion are not so compelling as to demonstrate that the Chief Executive’s decision was one that no reasonable decision-maker could have made.

151    Ground 2 of the second Further Amended Originating Application must be rejected insofar as it relies upon legal unreasonableness.

Reviewability under the ADJR Act

152    The decisions of the Chief Executive and the Director will not be reviewable under s 5 of the ADJR Act unless they are, “a decision to which this Act applies”. That expression is defined in s 3(1) to mean, “a decision of an administrative character made, proposed to be made, or required to be made…under an enactment…”.

153    In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ (with whom Brennan and Deane JJ agreed) at 335-338 distinguished between “decisions” reviewable under s 5 of the ADJR Act and “conduct” reviewable under s 6. The former entails decisions that are final, operative and substantive, whereas the latter are essentially procedural.

154    In Edelsten, Northrup and Lockhart JJ described Bond in these terms at 68:

Bond is authority for the principle that generally, for a decision to be reviewable under the Judicial Review Act it must have a quality of finality, not being merely a step taken on the way to the possible making of an ultimate decision; and it must have the essential quality of being a substantive as distinct from a procedural determination.

The rationale underlying Bond is that Parliament could not have intended the Judicial Review Act to be a vehicle for judicial review of every decision of a decision-maker under a Commonwealth enactment. Some decisions will have real impact upon a person’s rights, privileges or obligations; some will have no such impact, whilst others are mere stepping stones which may lead ultimately to the making of a decision which does affect the person’s position.

155    Their Honours held at 70 that the referrals to a Committee for investigation were merely, “steps in an administrative process that may lead to an ultimate operative determination affecting [the practitioner’s] position”, and were in themselves, “remote from any such consequences”. They lacked the quality of finality and were not substantive determinations. They were not reviewable decisions under the ADJR Act.

156    Dr Yoong submits that Edelsten is distinguishable on three bases. First, the referral to the Minister under reg 3(2)(b) of the Health Insurance Commission Regulations 1975 (Cth) (Repealed) was not a condition precedent to the Minister taking any action, whereas, a request under s 86(1) of the HI Act is a precondition to the Director’s decision to undertake or not undertake a review.

157    Second, Dr Yoong submits that such a request is deemed to be a decision under an enactment pursuant to s 3(3) the ADJR Act.

158    Third, Dr Yoong submits that, in contrast to s 86(2) of the current HI Act, there was no requirement under the iteration considered in Edelsten that the referral be in relation to a two year period immediately preceding the request. He contends that decisions under ss 86(1) and 88A therefore have an element of finality that was missing from the legislation considered in Edelsten.

159    A decision under s 86(1) of the HI Act is not a final or operative determination of a substantive kind. A request to review does not directly affect any rights of a practitioner, but only triggers the Director’s obligation to make a decision as to whether or not to undertake a review. In that respect, a request under s 86(1) is analogous to the referral by the Minister to a Committee considered in Edelsten. Although the referral activated the Committee’s duty to enquire and report, it was held in Edelsten not to be a decision under an enactment.

160    That a request under s 86(1) of the HI Act can only relate to a two year period immediately preceding the request, does not somehow convert the request into a final or operative determination affecting rights or obligations of a practitioner.

161    A decision made by the Director under s 88A of the HI Act also lacks the quality of a final or operative determination of a substantive kind. A decision as to whether to undertake a review does not directly affect any right or obligation of a practitioner, but simply determines whether the Director will undertake a review. Any effect on a person’s legal rights or obligations would be the result of separate decisions made by the Director following the conduct of a review. The Director’s decision to undertake the review is not a decision under an enactment, and is no more than a step in the administrative process that may lead to a final or operative decision.

162    Section 3(3) of the ADJR Act deems the making of a “report or recommendation” to be the making of a decision in certain circumstances. The section provides:

Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.

163    In Eastman v Australian Capital Territory (2008) 163 ACTR 14 , Moore and Stone and JJ held at [15]:

It is tolerably clear that [s 3(3) of the ADJR Act] was intended to encompass reports leading to decisions of the type to which the ADJR Act generally applies. That is, decisions made under enactments. A necessary characteristic of such decisions is that the decision must itself confer, alter or otherwise affect legal rights or obligations whether new or existing.

164    The ADJR Act does not define the words “report” or “recommendation”. They may be taken to have their ordinary meanings. A request made under s 86(1) of the HI Act is not a “report” or a “recommendation” in the ordinary senses of those words. It is merely, and expressly, a request.

165    In any event, s 3(3) of the ADJR Act only operates where the report or recommendation is a precondition to making another decision to which the ADJR Act would apply. A decision under s 88A(2) is not a decision of that kind. A decision under s 88A(2) also lacks a final or operative quality. It follows that s 3(3) of the ADJR Act does not operate to deem a decision under s 86(1) of the HI Act to be a decision under an enactment.

166    The decisions made by the Chief Executive and the Director are not reviewable under the ADJR Act.

Reviewability under the Judiciary Act

167    Dr Yoong also seeks orders pursuant to s 39B of the Judiciary Act quashing the decision of the Chief Executive under s 86(1) and of the Director under s 88A(2) of the HI Act.

168    The Chief Executive submits that certiorari is not available. She argues that decision under s 86(1) was merely preliminary in nature and, in addition, that neither decision affected any right.

169    In Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159–160, the plurality held:

…[F]or certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently “affects rights” in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision making process sufficiently “determines” or is connected with that decision.

The form in which a decision-making structure is established may be likely to indicate the nature of the function exercised at each stage within that structure. Nevertheless, the difference between the two situations outlined above is one of substance as well as form. In the second situation, the question becomes whether the stage of the process under challenge has the necessary effect on the final or ultimate decision.

170    In Byrne v Marles (2008) 19 VR 612, the Victorian Court of Appeal was concerned with the Legal Profession Act 2004 (Vic), which required the Legal Services Commissioner to investigate disciplinary complaints and authorised the Commissioner to refer a disciplinary complaint for investigation. Following the investigation, the Commissioner, if satisfied that there was a reasonable likelihood that the practitioner would be found guilty of professional misconduct, was required to apply to the tribunal for an order. The Court of Appeal held that a decision of the Commissioner to treat a complaint as a disciplinary complaint and to investigate it did not attract certiorari.

171    Justice Nettle (with whom the other members of the Court agreed) considered that Bond and Edelsten demonstrated that the Commissioner’s decision did not affect rights, and that the decision was not sufficiently connected with a final decision that affected rights. His Honour held:

70    …I do not consider that the decision of the commissioner to treat Mr Marsh’s complaint as a disciplinary complaint for the purposes of ss 4.4.7 and 4.4.9 affected the appellant’s rights in a legal sense. All it meant was that an investigation of the complaint would be carried out which, depending upon the result of the investigation, might lead to the Commissioner making a further determination under s 4.4.13 to apply to the Tribunal. Nor in my view could it properly be said that the commissioner’s determination to treat the complaint as a disciplinary complaint for the purposes of ss 4.4.7 or 4.4.9 sufficiently determined or was sufficiently connected with a decision that affects rights as to come within the second class of case identified in Hot Holdings. Unlike the administrative decision in that case (which was bound to have a discernible legal effect upon a subsequent exercise of ministerial discretion bearing upon legal rights), a decision of the commissioner to investigate a complaint as a disciplinary complaint does not have any discernible effect upon a decision of the tribunal upon application later made under s 4.4.13 of the Act.

71    No doubt a decision by the commissioner to treat a complaint as a disciplinary complaint and to investigate it as such or to refer it for investigation by the institute enlivens the investigative powers of the commissioner and the institute, including powers to compel the production of documents and explanations. In that limited sense it may be said that such a decision is one which satisfies a condition precedent to the exercise of power which may in turn affect rights or otherwise give rise to legal consequences. But that is not sufficient to attract certiorari. It does not necessarily follow from the commissioner’s decision to investigate or refer that compulsive powers will be invoked. It is conceivable that an examination could be carried out without any reference to the subject of the complaint or alternatively by means of interview without any compulsion.

172    The circumstances of Marles are analogous to the present situation. The Chief Executive’s request under s 86(1) of the HI Act does not itself affect a practitioner’s rights and is only indirectly and remotely connected with those decisions under the PSR Scheme that do affect rights. A request by the Chief Executive does not have any direct effect upon any later decision that a practitioner has engaged in inappropriate practice. While such a decision is a condition precedent to the exercise of power by the Director which may affect rights, like in Marles, the connection between the request and such exercise of power is too remote.

173    Further, I do not accept that the Director’s decision under s 88A of the HI Act affects a practitioner’s rights, or is sufficiently connected with decisions that do affect rights. As in Marles, such a decision only means that an investigation is conducted, which may lead to no further consequence. It is not until and unless the Director uses her powers to compel production of information and documents, or the Director comes to make a decision in accordance with s 89C, that rights may be affected.

174    I consider that the decisions of the Chief Executive and the Director are not susceptible to certiorari.

Summary

175    I have held that the decisions of the Chief Executive under s 86(1) and of the HI Act and the Director under s 88A(2) are not amenable to review under s 5 of the ADJR Act or susceptible to certiorari under s 39B of the Judiciary Act.

176    Even if I am wrong in this conclusion, I have found that Dr Yoong was not denied procedural fairness by the Chief Executive. Dr Yoong conceded that if he failed in his allegation that he was denied procedural fairness by the Chief Executive, his allegation that he was denied procedural fairness by the Director must also fail. Accordingly, Ground 1fails.

177    I have held that neither the Chief Executive nor the Director took into account irrelevant considerations, or failed to take into account relevant considerations. I have also held that neither of the decisions was legally unreasonable. Accordingly Grounds 2 and 3 fail.

178    Grounds 2A, 2B and 3A depend upon the success of the other grounds and must also fail.

179    Therefore, each of Dr Yoong’s grounds has failed. The application must be dismissed.

180    I do not understand the Director to seek costs. Dr Yoong should pay the Chief Executive’s costs.

Associate:    

Dated:    25 June 2021