Federal Court of Australia

Chambers v Chief Executive Medicare [2022] FCA 1164

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant pay the respondent’s costs of the appeal.

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 appeals from a decision of the Administrative Appeals Tribunal (the Tribunal), dismissing his application for review pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for want of jurisdiction.

2    On 12 March 2020, the applicant had an MRI scan taken, and subsequently lodged a claim for a Medicare rebate for the scan amounting to $300.

3    On 8 April 2020, the respondent notified the applicant that his claim had been rejected on the basis that, “Medicare benefits are not payable for the service/s listed on the account/s you provided” (the original decision). On 10 September 2021, the applicant applied to the Tribunal for review of the original decision.

4    The applicant contended before the Tribunal that, although the cost of an MRI scan would not ordinarily be reimbursed under Medicare, his state of health and the extended wait times for surgery required that he should be reimbursed. The applicant submitted that, “such a payment would fall under the social security law on the basis the payment of a Medicare benefit can be taken to be a social security periodic payment”. It was the applicant’s submission that the Tribunal had jurisdiction derived from s 139 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) to review the original decision.

5    On 9 November 2021, the Tribunal dismissed the application for review on the basis that the Tribunal did not have authority to determine the application, as the decision was not reviewable by the Tribunal under s 25(1) of the AAT Act.

6    Section 25(1) of the AAT Act relevantly provides:

Enactment may provide for applications for review of decisions

(1)    An enactment may provide that applications may be made to the Tribunal:

(a)    for review of decisions made in the exercise of powers conferred by that enactment; or

(b)     for the review of decisions made in the exercise of powers conferred, or that may be conferred by another enactment having effect under that enactment.

7    The Tribunal considered the following passage from the decision in Re Staats and National Archives of Australia (2009) 50 AAR 147; [2009] AATA 598 at [12]:

It is clear from the wording of section 25 of the Administrative Appeals Tribunal Act 1975 that the Tribunal can only review a decision if it is given the jurisdiction to do so by a specific provision of another enactment. It is essential to look very carefully at the provisions of the enactment said to give rise to the jurisdiction to review to make sure that the jurisdiction extends to the particular decision in respect of which a review is sought.

8    The Tribunal held that it did not have jurisdiction to review the original decision as the application for review was not made in relation to a decision that is made under an enactment that provides for further review of that decision by the Tribunal.

9    The Tribunal also noted that:

Medicare benefit payments are not considered to be social security payments or benefits for the purposes of social security law, they are administered pursuant to separate legislation. Consequently the Tribunal does not accept the Applicant’s submission that the [Administration Act] provides jurisdiction for the Tribunal to consider his application.

10    On 7 December 2021, the applicant filed a Notice of Appeal in the Federal Court. The applicant seeks an order that the Tribunal’s decision be varied to permit review of the original decision to refuse payment of the Medicare rebate, or some alternative remedy. The applicant was self-represented before the Tribunal and in his appeal to this Court.

11    The applicant raises the following grounds in his Notice of Appeal:

1.    Section 44(1) of the Administrative Appeals Tribunal Act 1975, enables the Applicant grounds to appeal to the Federal Court on a question of law.

2.    The single and only cited case by Member Mitchell in refusing to review on the grounds of jurisdiction: Re Staats and National Archives of Australia [2009] AATA 598; (2009) 50 AAR 147 at 149-150; is rather silent as to the meaning of “Enactment” and what constitutes an “instrument” as an “Enactment” for the Tribunal to have power and jurisdiction to review an administrative decision when the Act Pursuant to s 3 (Interpretation) Administrative Appeals Tribunal Act 1975 enlivens the meaning of “Enactment” to also including rules, regulations or by-laws made under an Act and not purely the Act itself. It is argued Rules, regulations or by-laws would ordinarily include a process of review and appeal to those notices and decisions as administrative decisions issued by the Chief Executive of Medicare for example.

12    The Notice of Appeal also advances the following questions of law:

1.    Whether the Administrative Appeals Tribunal has the legal jurisdiction to review an administrative decision pursuant s 20 Health Insurance Act 1973 of a refusal to pay $300 of Medicare benefit to the Applicant by the Chief Executive Medicare acting as Chief Executive Human Services pursuant to s 4 (Chief Executive Medicare) Human Services (Medicare) Act 1973.

2.    Whether “Enactment” pursuant to s 3 (Interpretation,) Administrative Appeals Tribunal Act 1975 under the meaning in the Act is not immediately so prescriptive as the Tribunal would suggest in refusing to review the Applicant’s complaint based on jurisdiction to review the administrative decision when an “Instrument,” as defined by the Act could ordinarily sit alongside the Act, as a process of a review by means of rules, regulations or by-laws of an Administrative Decision, as an “Instrument” for the purposes of a review of an administrative decision.

(Particulars omitted.)

13    In his Notice of Appeal, the applicant also seeks an order, by way of a claim for interlocutory relief, that the Attorney-General provide legal or financial assistance to the applicant in respect of the appeal. Section 69(1) of the AAT Act provides that a party to a proceeding before the Tribunal may apply to the Attorney-General for provision of assistance in respect of the proceeding. Section 69(2) provides that the Attorney-General may, if satisfied that it would involve hardship to the person to refuse the application, and it is reasonable that the application should be granted, authorise the provision of legal or financial assistance. For the reasons given in Chambers v Commissioner of Taxation [2022] FCA 1163, this application must be refused.

14    On 26 April 2022, the applicant lodged an interlocutory application for summary judgment, on the basis that the respondent had not complied with an order of the Court, dated 9 March 2022, which required the respondent to file, “any affidavits” by 4.30 pm on 19 April 2022. The interlocutory application was heard immediately prior to the hearing of the substantive appeal.

15    In his interlocutory application, the applicant contended that the respondent contravened the order by failing to file any affidavits. The applicant seeks an order for interest on the $300 Medicare claim and an order for exemplary damages assessed at $10,000. The order of 9 March 2022 required the respondent to file “any affidavits” by 4.30 pm on 19 April 2022. The order did not require the respondent to file affidavits, but only that any affidavits the respondent wished to rely on be filed by that date. The respondent was not in default of the order. There is no basis for the grant of summary judgment. The applicant’s interlocutory application must be dismissed.

16    Turning to the appeal itself, the applicant first contends that the Tribunal has jurisdiction to review the original decision under s 20(1) of the Health Insurance Act 1973 (Cth) (the HI Act). The applicant submits that the Tribunal erred in finding that it did not have jurisdiction to review the original decision, as the decision did not relate to a decision made under an enactment providing for further review of that decision by the Tribunal. Section 44(1) of the AAT Act permits the applicant to appeal to this Court from the Tribunal on a question of law.

17    The Tribunal’s jurisdiction under s 25(1) of the AAT Act is limited to review of decisions made in the exercise of powers conferred by an enactment, or by another enactment having effect under that enactment: cf Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 312, 334; Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 324 at [132]; Luck v University of Southern Queensland [2008] FCA 1582 at [11]-[12]. The Tribunal has the competence and authority to determine whether it has jurisdiction: see Re Adams and Tax Agents’ Board (1976) 1 ALD 251; Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459 at 468.

18    Section 20(1) of the HI Act provides:

(1)    Subject to this Part, medicare benefit in respect of a professional service is payable by the Chief Executive Medicare on behalf of the Commonwealth to the person who incurs the medical expenses in respect of that service.

(Emphasis added.)

19    A “diagnostic imaging service” is a “professional service” under s 3 of the HI Act. A diagnostic imaging service is defined in s 3 of the HI Act as:

(a)    an R type diagnostic imaging service; or

(b)    an NR type diagnostic imaging service;

to which an item of the diagnostic imaging services table relates.

20    Section 10 of the HI Act provides an entitlement to a Medicare benefit for a professional service, calculated by reference to the tables comprising the Medicare Benefits Schedule. The Medicare Benefits Schedule sets out the amount of Medicare rebate payable for a medical service item, such as a diagnostic imaging service: see s 4AA of the HI Act; see also Wong v Commonwealth (2009) 236 CLR 573 at [203]-[207] (Hayne, Crennan and Kiefel JJ).

21    Section 20(1) is expressed to be subject to Part II of the HI Act, entitled, “Medicare benefits”. The Part outlines the circumstances in which Medicare benefits will and will not be payable in respect of certain medical expenses (ss 16 – 19C), including in relation to diagnostic imaging services (ss 16B – 16EA). Section 19CA of the HI Act provides a specific avenue for review by the Tribunal of decisions by the Minister to refuse to direct that a Medicare benefit is payable in respect of a professional service under ss 19C(3) or (4) of the HI Act, where a medical practitioner renders a service they are not authorised to provide. However, no such decision was made in the present case. Part II of the HI Act does not otherwise provide an avenue for review of the respondent’s decision to refuse to pay a Medicare rebate in respect of diagnostic imaging services.

22    The respondent submits that none of the relevant legislation and legislative instruments which give effect to the payment of Medicare benefits under the Medicare Benefits Schedule provide for review by the Tribunal of a decision made by the Chief Executive Medicare under s 20 of the HI Act. These Acts, regulations and instruments are: the HI Act, the Health and Other Services (Compensation) Act 1995 (Cth), the Health Insurance Regulations 2018 (Cth), the Health Insurance (Diagnostic Imaging Services Table) Regulations (No. 2) 2020 (Cth) and the Health Insurance (Section 3C Diagnostic Imaging – Cardiac MRI for Myocarditis) Determination 2021 (Cth). The respondent’s submission is correct.

23    Accordingly, there was no error in the Tribunal’s conclusion that it did not have jurisdiction to determine the application for review.

24    The applicant submits, alternatively, that a Medicare benefit payable under s 20 of the HI Act is a, “social security benefit”, or a “social security periodic payment”, and is thereby reviewable by the Tribunal under the Administration Act.

25    Section 23(1) of the Social Security Act 1999 (Cth) defines a “social security benefit” as:

social security benefit means:

(aab)    youth allowance; or

(aac)    austudy payment; or

(a)    jobseeker payment; or

(d)    special benefit; or

(f)    benefit PP (partnered); or

(g)    parenting allowance (other than non benefit allowance).

26    A “social security periodic payment” is defined in Sch 1 of the Administration Act as:

social security periodic payment means:

(a)    a social security benefit; or

(b)    a social security pension; or

(c)    carer allowance; or

(f)    double orphan pension; or

(g)    mobility allowance; or

(i)    pensioner education supplement; or

(k)    Disaster Recovery Allowance.

27    It is apparent from the above definitions that a Medicare rebate is not a “social security benefit” or a “social security periodic payment” within the meaning of the Social Security Act or the Administration Act.

28    Part 4A of the Administration Act is entitled, “Review by the AAT”. Section 139 of the Administration Act provides a simplified outline of the process of review to the Tribunal, in respect of a decision made by, “an officer under the social security law”. The Part sets out a two-tiered system of review, whereby a person who, “is dissatisfied with a decision of an officer under the Social Security Law … may apply to the AAT for a review (an “AAT first review”) of the decision”, and if dissatisfied with the Tribunal’s decision upon AAT first review, may apply to the Tribunal for further review (an “AAT second review”). The “Social Security Law” is defined in s 23(17) of the Social Security Act as comprising the Social Security Act, the Administration Act and any other act expressed as forming part of the Social Security Law: see also s 3(2) of the Administration Act.

29    Sections 142 and 144 of the Administration Act, read together, outline the decisions made under the Social Security Law which may be reviewed by the Tribunal in AAT first review. Section 142 relevantly provides:

(1)    Subject to section 144, application may be made to the AAT for review (AAT first review) of:

(a)    a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer made under section 126 or 135; or

(b)    a decision under this Act made personally by the Secretary or the Chief Executive Centrelink.

30    Section 144 of the Administration Act sets out additional decisions under the Social Security Law which cannot be reviewed by the Tribunal under AAT first review.

31    Thus, even if the applicant was correct in submitting that a Medicare rebate could constitute a “social security benefit” or “social security periodic payment” for the purposes of the Social Security Law, there is no evidence that the original decision was made by a relevant decision maker which would make the decision capable of review under s 142 of the Administration Act.

32    In respect of the applicant’s second question of law, the applicant submits that the meaning of “enactment” in s 3 of the AAT Act was misconstrued by the Tribunal. The applicant submits that, “rules, regulations, or by-laws would ordinarily include a process of review and appeal to those notices and decisions as administrative decisions issued by the Chief Executive Medicare for example”.

33    For the reasons already provided, the relevant legislation and regulations under the Medicare Benefits Schedule do not confer jurisdiction on the Tribunal to review a decision made under s 20(1) of the HI Act. This submission must also be rejected.

34    By an affidavit filed on 5 April 2022, the applicant sought leave to amend his Notice of Appeal to add a further question of law, expressed as:

Whether Justice Thomas as President of the Tribunal delegating powers to make a Tribunal decision to Member Mitchell had an undisclosed conflict of interest in this matter and breached s 14 Administrative Appeals Tribunal Act 1975 and in turn if such a breach were upheld would it invariably null and void the originating Tribunal decision…causing the Court to make Orders to set it aside?

35    The applicant appears to submit that the Tribunal’s decision should be set aside on the basis of apprehended bias on the part of the then President of the AAT (the President). The applicant has not articulated the nature of the President’s alleged bias. However, it may be inferred that the applicant relies upon the same allegations he made in Chambers v Commissioner of Taxation [2022] FCA 1163. For the reasons given in that matter, the allegation of apprehended bias must be rejected.

36    On 20 June 2022, after the hearing, the applicant filed a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) and an affidavit, by which the applicant seeks leave to amend his Notice of Appeal to introduce constitutional grounds. The purported constitutional issues sought to be raised by the applicant are, in summary:

(1)    whether s 51(xxiiiA) of the Constitution “enlivens” a Medicare claim under the “social security law”;

(2)    whether “concessional” medical, hospital and/or pharmaceutical benefits under the Social Security Act and the Administration Act, fall, “within the ambit of social security law pursuant to s 51(xxiiA) (sic) of the Constitution”;

(3)    whether, “practical steps could be authorised and implemented to avoid … a breach”, of s 117 of the Constitution caused by differing and “discriminatory” elective surgery wait times between States; and

(4)    whether the respondent is in “breach” of s 118 of the Constitution by refusing to authorise the payment of an MRI.

37    In his outline of submissions, the applicant also submits that the Tribunal’s finding that a Medicare payment is not a, “social security benefit” is, “inconsistent with s 51(xxiiiA)” of the Constitution. The respondent opposes leave being granted to the applicant to amend his Notice of Appeal.

38    In Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292, French J held at [14]:

Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation.

(Citations omitted; see also Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) (2010) 184 FCR 516 at [13]-[14]; Chapel of Angels Pty Ltd v Hennessy [2021] FCA 875 at [34]-[37] (Derrington J). 

39    The purported constitutional issues raised by the applicant do not have any apparent relevance to the issues raised in the appeal, which are concerned with whether the Tribunal made any error of law in dismissing the applicant’s application for review. The applicant should be refused leave to amend his notice of appeal to raise the proposed constitutional grounds.

40    As the applicant has not demonstrated legal error on the part of the Tribunal, the appeal must be dismissed with costs.

Associate:    

Dated:    30 September 2022