Wong v Commonwealth of Australia & Anor; Selim v Lele & Ors [2008] HCATrans 265 (1 August 2008)

Last Updated: 4 August 2008

[2008] HCATrans 265

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S136 of 2008

B e t w e e n -

CHEE KAN KENNETH WONG

Applicant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

RIFAAT GEORGE DIMIAN

Second Respondent

Office of the Registry
Sydney No S137 of 2008

B e t w e e n -

ASHRAF THABIT SELIM

Applicant

and

VINAYAK (VINOO) LELE, PATRICK TAN AND DAVID RIVETT CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 309

First Respondent

DETERMINING AUTHORITY ESTABLISHED UNDER SECTION 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

Applications for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 AUGUST 2008, AT 9.35 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR M.A. ROBINSON, for the applicants in each matter. (instructed by TressCox Lawyers)

MR S.J. GAGELER, SC: If the Court pleases, I appear with MS R.M. HENDERSON and MS K.M. RICHARDSON in the first matter for the first respondent and in the second matter for the Attorney-General of the Commonwealth intervening. (instructed by Australian Government Solicitor)

MS R.M. HENDERSON: May it please the Court, I appear for the respondent in the second matter. (instructed by Sparke Helmore)

GUMMOW J: There is a submitting appearance for the - - -

MS HENDERSON: The determining authority.

GUMMOW J: I think that is right, yes.

MS HENDERSON: That is the second respondent in Selim.

GUMMOW J: Thank you.

KIRBY J: Anyway, let us not tarry.

MR JACKSON: Your Honours, may I mention that the – and I should read, I expect – two affidavits of Mr Davey about compliance with section 78B and the responses to those. They are affidavits sworn 30 July 2008.

KIRBY J: Do you need an extension of time?

MR JACKSON: Yes, I think I do for one of them, your Honour. I seek that extension. I do not think it is opposed.

GUMMOW J: You need an extension of time - - -

KIRBY J: There is an affidavit of Mr Davey at page 85.

MR JACKSON: Yes, your Honour, for one day I think it is.

GUMMOW J: Yes, in the Selim matter. Is that opposed?

MR GAGELER: No, your Honour.

GUMMOW J: Yes, Mr Jackson. Now, are you pressing the judicial power point?

MR JACKSON: No.

GUMMOW J: Right. All right. In those circumstances, we might hear from those opposed to you.

MR JACKSON: Thank you, your Honour.

MR GAGELER: Your Honours, the case raises no issue of principle that was not determined nearly 30 years ago in relation to this Act in its earlier form in the General Practitioners Society Case. Your Honours, the test of civil conscription that was laid down in that case, if your Honours have it to hand – I think your Honours have a bundle of authorities. If your Honours could turn within the General Practitioners Society Case to page 550 in the judgment of Justice Gibbs whose reasoning relevantly reflects the reasoning of the majority of the Court. At page 550 one sees - - -

KIRBY J: What page, I am not hearing you?

MR GAGELER: Page 550, your Honour. You will see the facts as stated in the stated case set out at the top of the page, and then his Honour says:

The facts thus stated establish that the provisions in question leave some medical practitioners with no real choice; to preserve their practices, they must seek to become approved pathology practitioners - - -

GUMMOW J: Well, the question is what is meant by “real choice” and we in the realm of form or the realm of substance and so on and so forth.

MR GAGELER: What I am seeking to show your Honour is that the test laid down in this case, which this Act relevantly in an identical form was held to pass, was laid down in a context where the factual operation of the Act was in substance not materially different from its factual operation, as shown by the agreed facts here.

GUMMOW J: Is there any discussion in this case as to the genesis of this constitutional amendment?

MR GAGELER: In General Practitioners itself?

GUMMOW J: Yes.

MR GAGELER: Not in the same way as the judgment sought to be made the subject of the appeal goes through the referendum appeal, no, but the - - -

KIRBY J: It seems this expression “civil conscription” comes as a reaction to some uses of the defence power in the Second World War, which was very approximate.

MR GAGELER: Well, yes, it was introduced I think just after the Second World War, but the term, of course, your Honour, as Sir Owen Dixon observed in the earlier judgment in the British Medical Association Case is not one that carries any clear conception of that type. So one is concerned with terminology that has had no clear historical meaning, even accepting
the historical context in which it came into being and where a practical and workable test was formulated relevantly in circumstances the same as those disclosed by the agreed facts in the present case. That has stood for 30 years and the Act has not relevantly changed in that period. If the Court pleases.

GUMMOW J: Yes, Ms Henderson, do you want to say anything?

MS HENDERSON: I adopt the submissions of the learned counsel for the Commonwealth.

GUMMOW J: Thank you. Yes, Mr Jackson.

MR JACKSON: Your Honours, so far as the General Practitioners Case is concerned, your Honours will see that in our submissions in reply at page 125 we deal with a number of matters arising from that case and your Honours will see that in particular in paragraphs 6 to 12. Also may we say, your Honours, that if it be necessary, we would ask the Court to reconsider General Practitioners Society and maybe say in relation to it, your Honours, if one goes to page 550 of that decision to which your Honours were earlier taken, you will see in the passage in the paragraph commencing halfway down the page, “The facts thus stated,” that in the last four or five lines of that Justice Gibbs said:

the circumstance that no medical practitioner is legally obliged to become an approval pathology practitioner is not decisive of the question whether the provisions in question impose a form of civil conscription within s 51(xxiiiA).

He then went on to discuss the application of it to the particular form there in question. As you will see, your Honours, in the submissions that we make in our submissions in reply at paragraphs 6 to 12, as I said - - -

GUMMOW J: Just a minute, Mr Jackson, paragraph - - -

MR JACKSON: At page 126 of the application book, paragraphs to 6 to 12.

GUMMOW J: Yes.

MR JACKSON: To put it shortly, your Honours, the General Practitioner Society Case was concerned with only part of an early version of a scheme. As we say in paragraph 7, there have been very significant changes since then on a number of occasions. Your Honours will see that the part of the case relating to inappropriate practice is something that was unknown at the time of the General Practitioners Case, and we make, your Honours, some other submissions in paragraphs 9 to 12.

Your Honours, could we note in relation to the particular case that this is a case where, first of all, this Court on a number of occasions has taken the view that the concept of civil conscription does include compulsion other than by strict legal obligation. You will see the passages extracted by the Full Court at page 21 in paragraphs 30 to 33. Your Honours, I will not read them out, but there your Honours will see the various passages referred to in which the concept of practical compulsion, as so described, is referred to as falling within the concept of civil conscription.

Now, your Honours, of course, this Court has said that where there are constitutional limitations on power the Court looks to substance as well as to legislative form, for example, in Betfair. Your Honours, here both courts below have taken the view that the legislative scheme as a practical matter compels those medical practitioners who wish to practise as general practitioners to be part of the legislative scheme. May I give your Honours very briefly those two references. The first is page 61, Justice Stone’s decision, in paragraph 46 about line 29 where her Honour said:

I accept that here, as there in the General Practitioners case, there is a form of compulsion in that it may be severely detrimental, if not fatal, to the viability of a medical practice if the practitioner were excluded from the Medicare Scheme.

It was dealt with a little more fully, your Honours, in the Full Court at page 27 in paragraph 35, and your Honours will see it was said:

It may be accepted that if patients cannot claim medical benefits in relation to the services that a doctor provides, that a doctor will have few, if any, opportunities to practise as a general practitioner in private practice. The Act thus imposes a practical compulsion on those who wish to practise as general practitioners in private practice to participate in the Medicare Scheme and, as a result of Pt VAA, to conduct their practice in such a way as to avoid committing inappropriate practice . . . The other ways in which those with medical training could practise their profession were also available, to some extent, when the High Court heard the BMA Case and the General Practitioners Society Case, and are not sufficient to avoid the practical compulsion –

et cetera. Now, your Honours, the other ways that are referred to, there is a reference to a list of activities in which someone, a general practitioner, who did not participate in the scheme might engage. You will see them listed on the preceding page. If we could just say this, your Honours, of course a medical practitioner may find it congenial to be a medical officer in a correctional institution or on a cruise ship, but if a medical practitioner, young or old, wishes simply to provide general practice services to the public, he or she cannot do so otherwise than as a participant in a government scheme and subject to professional standards prescribed pursuant to statute and the sanctions it imposes, and we would ask your Honours, why is that not a form of civil conscription?

KIRBY J: I understand your complaint, but what is your theory of the meaning of the constitutional phrase that would provide or would yield a bright line that would be to the advantage of your client?

MR JACKSON: Well, your Honour, if I could put it this way. If one leaves aside the question of statutory compulsion, putting that to one side, one then has a situation where it does become a question of deciding in each case on which side of the line, to which I will advert in a moment, things come. Now, if one is looking at the question of practical compulsion, and I use that, your Honours, not as an exact term but as a synonym perhaps, it can arise in a number of situations.

One situation, the simplest one, would be where there is a requirement on doctors to provide services in particular ways at particular times in particular places. For example, a question might arise about whether there was practical compulsion if doctors were required to spend a particular time in the country. But the point I am ultimately getting to is to say that if looking at a particular legislative scheme it has the practical effect that a medical practitioner can only carry on the medical practitioners practice in a way which is governed by government Act, government regulation, and in a way which provides for sanctions if that doctor does not do so, sanctions of a professional nature, that falls on the wrong side of the line. Your Honour, there are many instances but the line, it may have a furry edge, but there is a line down the middle.

KIRBY J: Well, that is a frequent characteristic of constitutional expressions. Look at the prisoners voting case.

MR JACKSON: Indeed. And, of course, one does have that brought into being by the concept of, in the constitutional words, any form of civil conscription. Your Honours, as I said before, so far as the General Practitioners Case is concerned, if the view were taken that that case had an application decisive of the present case, we would seek to have that reconsidered by the Court.

GUMMOW J: Yes. I do not know whether there is the full assistance here. My recollection is that, as leader of the Opposition of the day, it was
Mr Menzies who managed to get this phrase inserted in the Bill for the referendum.

MR JACKSON: Yes, as a kind of quid - - -

GUMMOW J: Quid pro quo.

MR JACKSON: Yes.

KIRBY J: Justice Gummow would not remember this, but the 1949 election included the references to the dangers of government being able to civilly conscript us all.

MR JACKSON: Yes.

KIRBY J: Mr Menzies won and was there for 23 years.

MR JACKSON: Yes, I remember the occasion, albeit somewhat - - -

GUMMOW J: All I am saying is there may be some need to think about the Cole v Whitfield approach to constitutional interpretation when one is looking at change introduced by referendum.

MR JACKSON: Yes, your Honour, there is some discussion of that in the Full Court’s reasons.

GUMMOW J: Yes, there is, yes.

MR JACKSON: I think the observation of Mr Menzies is referred to in the Full Court’s reasons.

GUMMOW J: Is it?

MR JACKSON: Your Honours, those are our submissions.

GUMMOW J: Yes, thank you.

MR GAGELER: Your Honours, the observation of Mr Menzies is at page 17 and it was considered by the Full Court in coming to the view that the parliamentary debates and the history of the referendum really support the view that was taken in the General Practitioners Case. Your Honours, there is a line to be drawn and it is a line that has been drawn some 30 years ago in relation to an Act that is relevantly in identical structure. The position now, as the position was then, is that a medical practitioner who wishes to provide medical services to the public has a very strong economic
incentive to do so in a way which empowers the person to whom the medical services are provided to obtain a Medicare benefit - - -

KIRBY J: It is a tricky problem because on the one hand if you have any federal subventions and so on, you are going to have to have regulation of people’s behaviour.

MR GAGELER: Of course.

KIRBY J: But the Constitution forbids that going so far as to be civil conscription, so that the tricky problem is, how do you delineate the regulation from the conscription?

MR GAGELER: Well, the test that was laid down, your Honour, and it is really quite clearly laid down, is that of legal or practical compulsion to perform a particular service, and the legal or practical compulsion to perform a particular service was not distinguished in that earlier case from a practical incentive to perform the service. The practical incentive in that case was no different from the practical incentive in the current circumstances and it was distinguished from compulsion to perform a service in a particular way where a service is performed.

KIRBY J: I suppose we could take judicial notice that you go to a doctor and they are terrified that, whether they take particular blood tests for cholesterol and so on, they are going to have somebody disciplining them.

MR GAGELER: I do not think your Honour can take judicial notice of that.

KIRBY J: Well, you might not be able to, but older judges do.

MR GAGELER: Well, we may or may not need to have a debate about that, your Honour. Those are our submissions.

GUMMOW J: Yes, very well. Now, the extension of time which is required in the Selim matter will be granted.

There will be a grant of special leave in both matters, but the grounds of appeal should exclude any references presently made in the drafts to Chapter III of the Constitution. How long will it take, a day plus I should think?

MR JACKSON: Yes, your Honour.

GUMMOW J: You want leave to reopen the - - -

MR JACKSON: Yes, your Honour, that would be my estimate, and there is a possibility there may be intervenors.

GUMMOW J: Yes. I think we should allow two days myself. Yes, very well. The party should be alert that it may be coming on in the November sittings, which are going to be in Adelaide.

MR JACKSON: Your Honour, I hesitate to ask.....very difficult for me, but I leave that aside.

GUMMOW J: Well, when do your difficulties ease?

MR JACKSON: Before or after those sittings, your Honour.

GUMMOW J: I see. Very well.

KIRBY J: Then it starts to get a bit difficult for me.

AT 9.54 AM THE MATTER WAS CONCLUDED