Selim v Lele

• Jurisdiction: Australia Federal only
• Judgment Date: 27 February 2008
• Neutral Citation: [2008] FCAFC 13
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Selim v Lele [2008] FCAFC 13

CONSTITUTIONAL LAW – Constitution s 51(xxiiiA) – power to make laws with respect to the provision of medical and dental services (but not so as to authorise any form of civil conscription) – meaning of “civil conscription” – sufficiency of “practical compulsion” – Health Insurance Act 1973 (Cth) ss 10, 20, 20A and Part VAA – whether imposition of standards and prohibition of “inappropriate practice” amounts to civil conscription – laws imposing standards upon provision of medical services incidental to Commonwealth power to provide medical services and do not amount to “civil conscription”

CONSTITUTIONAL LAW – Judicial Power – whether functions conferred on the Professional Services Review Tribunal under s 106U of the Health Insurance Act 1973 (Cth) involve an exercise of judicial power – prior authority not plainly wrong

CONSTITUTIONAL INTERPRETATION – legitimate use of referendum materials and related parliamentary debates to interpret amendments to the Constitution

WORDS AND PHRASES – “civil conscription”, “industrial conscription” and “inappropriate practice”

Constitution ss 51(xxvi), 51(xxiiiA), 71, 72, 128

Health Insurance Act 1973 (Cth) ss 10, 20, 20A, 106U and Pt VAA,

Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271, cited

Attorney-General (Cth) v Alinta Ltd [2008] HCA 2, cited and considered

Attorney-General (Vic) (Ex rel Dale) v Commonwealth (1945) 71 CLR 237, considered

Chamberlain v The Queen (No 2) (1983) 72 FLR 1, cited

Cole v Whitfield (1988) 165 CLR 360, cited

Federal Council of the British Medical Association in Australia v Commonwealth (1949) 79 CLR 201, cited and considered

General Practitioners Society v Commonwealth (1980) 145 CLR 532, cited and considered

Health Insurance Commission v Grey (2002) 120 FCR 470, considered and applied

Kartinyeri v Commonwealth (1998) 195 CLR 337, cited and considered

New Zealand v Moloney (2006) 154 FCR 250, cited

Nguyen v Nguyen (1990) 169 CLR 245, cited

Reid v Sinderberry (1994) 68 CLR 504, cited and considered

Rich v Australian Securities and Investments Commission (2004) 220 CLR 129, considered and distinguished

Selim v Lele and Ors (2006) 150 FCR 83, affirmed

Tankey v Adams(2000) 104 FCR 152, considered and followed

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, cited

Transurban City Link Ltd v Allan (1999) 95 FCR 553, cited

Yung v Adams(1997) 80 FCR 453, cited

ASHRAF THABIT SELIM v VINAYAK (VINOO) LELE, PATRICK TAN AND DAVID RIVETT CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO 309, THE DETERMINING AUTHORITY ESTABLISHED UNDER S 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH), HEALTH INSURANCE COMMISSION AND ALAN JOHN HOLMES IN HIS CAPACITY AS DIRECTOR, PROFESSIONAL SERVICES REVIEW

NSD 553 OF 2006

RIFAAT GEORGE DIMIAN AND CHEE KAN KENNETH WONG v COMMONWEALTH OF AUSTRALIA

NSD 2065 OF 2006

BLACK CJ, FINN AND LANDER JJ

27 February 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 553 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ASHRAF THABIT SELIM Appellant
AND:	VINAYAK (VINOO) LELE, PATRICK TAN AND DAVID RIVETT CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO 309 First Respondent THE DETERMINING AUTHORITY ESTABLISHED UNDER S 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH) Second Respondent HEALTH INSURANCE COMMISSION Third Respondent ALAN JOHN HOLMES IN HIS CAPACITY AS DIRECTOR, PROFESSIONAL SERVICES REVIEW Fourth Respondent

JUDGES:	BLACK CJ, FINN AND LANDER JJ
DATE OF ORDER:	27 February 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave to file Supplementary Notice of Appeal be granted;

2. The appeal be dismissed.

3. The appellant pay the costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2065 OF 2006

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	RIFAAT GEORGE DIMIAN First Applicant CHEE KAN KENNETH WONG Second Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGES:	BLACK CJ, FINN & LANDER JJ
DATE OF ORDER:	27 February 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The referred questions be answered as follows:

1. Sections 10, 20, 20A and Pt VAA (or any provision of Pt VAA) of the Health Insurance Act 1973 (Cth) do not amount to civil conscription within the meaning of s 51(xxiiiA) of the Constitution, and are not outside the legislative power of the Commonwealth;

2. Section 106U of the Health Insurance Act 1973 (Cth) does not purport to confer the judicial power of the Commonwealth on persons who have not been appointed pursuant to s 72 of the Constitution, and is valid.

2. The applicants pay the costs of the respondents of the reference.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 553 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ASHRAF THABIT SELIM Appellant
AND:	VINAYAK (VINOO) LELE, PATRICK TAN AND DAVID RIVETT CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO 309 First Respondent THE DETERMINING AUTHORITY ESTABLISHED UNDER S 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH) Second Respondent HEALTH INSURANCE COMMISSION Third Respondent ALAN JOHN HOLMES IN HIS CAPACITY AS DIRECTOR, PROFESSIONAL SERVICES REVIEW Fourth Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NDS 2065 OF 2006

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	RIFAAT GEORGE DIMIAN First Applicant CHEE KAN KENNETH WONG Second Applicant
AND:	commonwealth of australia Respondent

JUDGES:	BLACK CJ, FINN AND LANDER JJ
DATE:	27 February 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT INTRODUCTION

1 There are two matters before the Court. The first is an appeal from a decision of a single judge of the Court in Selim v Lele and Ors (2006) 150 FCR 83. The second is a reference of questions to a Full Court in the matter of Dimian and Wong v The Commonwealth of Australia which is an application remitted to the Federal Court by the High Court of Australia. We heard both matters together. The Attorney-General for the Commonwealth intervened in Selim (2006) 150 FCR 83 and the respondents in that case adopted his submissions.

2 In both cases there is a challenge to the validity of the Professional Services Review (PSR) Scheme in Pt VAA of Health Insurance Act 1973 (Cth) (the Act). Dr Selim, Dr Dimian and Dr Wong are general practitioners who have been found by a PSR Committee to have engaged in inappropriate practice. The consequence of such a finding is that each doctor may be subject to sanctions, including reprimand, counselling and disqualification from participation in the Medicare Scheme for up to three years. The Determining Authority, whose responsibility it is to decide upon the sanctions each doctor will be subject to, has undertaken not to make determinations pending the outcome of these proceedings.

3 The doctors contend that the PSR Scheme and certain other key provisions of the Act offend the prohibition on civil conscription in s 51(xxiiiA) of the Constitution and that the Act impermissibly confers the judicial power of the Commonwealth on the Determining Authority. These contentions were rejected by the learned primary judge in Selim (2006) 150 FCR 83.

THE PROFESSIONAL SERVICES REVIEW SCHEME

4 The PSR Scheme was introduced into the Act as a new Pt VAA by the Health Legislation (Professional Services Review) Amendment Act 1994 (Cth) and was subsequently amended by the Health Insurance Amendment (Professional Services Review) Act 1999 (Cth) and the Health Legislation Amendment Act (No 3) 1999 (Cth) (the 1999 amendments), both of which came into effect on 1 January 2000. Pt VAA has since been amended again by the Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth), which relevantly came into effect on 1 January 2003. Because the Health Insurance Commission (the Commission) (now Medicare Australia) referred the conduct of each of the doctors to the Director of PSR (the Director) on dates between 1 January 2000 and 1 January 2003, Pt VAA of the Act as it was in force during that period applies: Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth), Sch 1, Item 118.

5 Central to the PSR Scheme is the concept of inappropriate practice. That term is defined s 82, which, as relevant to general practitioners, provides:

82 Definitions of inappropriate practice

(1) A practitioner engages in inappropriate practice if the practitioner’s conduct in connection with rendering or initiating services is such that a Committee could reasonably conclude that:

(a) if the practitioner rendered or initiated the services as a general practitioner—the conduct would be unacceptable to the general body of general practitioners; or

…

(2) A person (including a practitioner) engages in inappropriate practice if the person:

(a) knowingly, recklessly or negligently causes, or knowingly, recklessly or negligently permits, a practitioner employed by the person to engage in conduct that constitutes inappropriate practice by the practitioner within the meaning of subsection (1); or

(b) is an officer of a body corporate and knowingly, recklessly or negligently causes, or knowingly, recklessly or negligently permits, a practitioner employed by the body corporate to engage in conduct that constitutes inappropriate practice by the practitioner within the meaning of subsection (1).

(3) A Committee must, in determining whether a practitioner’s conduct in connection with rendering or initiating...