Minister for Community Services and Health & Anor v. Thoo, C.K. [1988] FCA 74
Federal Court of Australia
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JUDGMENT No. 747BBy
CATCHWORDS
ADMINISTRATIVE LAW - judicial review - Appeal from
Administrative Appeals Tribunal - review of decision of
Medicare Participation Review Committee ~ disqualification of
practitioner from participation in the Medicare scheme -
offences under s.129(1) of the Health Insurance Act - earlier
(1976) convictions under s.103(8) of the National Health Act -
whether AAT entitled as matter of law to have regard to 1976
convictions - definition of "relevant offence" under s.124B(1)
of the Health Insurance Act.
Health Insurance Act 1973 (Cth) - ss. 124B, 124F and 124H
National Health Act 1953 (Cth) - s. 103(5)
Administrative Appeals Tribunal Act 1975 (Cth) - s.44.
MINISTER FOR COMMUNITY SERVICES AND HEALTH and
MEDICARE PARTICIPATION AND REVIEW COMMITTEE v. CHEE KEONG THOO
No. Nsw G5Iqd of 1987
Davies, Wilcox & Burchett JJ.
9 March 1988
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. G514 of 1987
)
)
GENERAL DIVISION
On appeal from the General
Administrative Division of the
Administrative Appeals Tribunal
BETWEEN: MINISTER FOR COMMUNITY
SERVICES AND HEALTH
First Applicant
AND: MEDICARE PARTICIPATION AND
REVIEW COMMITTEE
Second Applicant
AND: CHEE KEONG THOO
Respondent
CORAM: Davies, Wilcox and Burchett JJ.
DATE: 9 March 1988
PLACE: Sydney
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. the appeal be dismissed.
2. the first named applicant should pay the respondent's
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 ) No. G514 of 1987
)
)
GENERAL DIVISION
On appeal from the General
Administrative Division of the
Administrative Appeals Tribunal
BETWEEN: MINISTER FOR COMMUNITY
SERVICES AND HEALTH
First Applicant
AND: MEDICARE PARTICIPATION AND
REVIEW COMMITTEE
Second Applicant
AND: CHEE KEONG THOO
Respondent
CORAM: Davies, Wilcox and Burchett JJ.
DATE: 9 March 1988
PLACE: Sydney
REASONS FOR JUDGMENT
Davies and Wilcox JJ:
This 1s an appeal from a decision of the Administrative
Appeals Tribunal which reviewed a decision of a Medicare
Participation Review Committee (an "M.P.R.C.") made under
s.124F(2) of the Health Insurance Act 1973 (Cth)("the Act"). The
M.P.R.C. had made a determination that the respondent, Dr C.K.
Thoo, be disqualified from participation in the Medicare scheme
for a period of three months. The Administrative Appeals
Tribunal, by its order, varied the disqualification limiting it
2.
to professional services involving acupuncture. Under s. 44 of
the Administrative Appeals Tribunal Act 1975 (Cth), this appeal
1s limited to points of law.
The proceedings before the M.P.R.C. arose after Dr Thoo
had been charged before a magistrate with 28 offences under
s.129(1) of the Act, which offences had occurred in the early
1980's. With regard to 24 of the offences, the magistrate found
them proved but dismissed them under s.19B of the Crimes Act.
With regard to the remaining four offences, the magistrate,
without proceeding to a conviction, ordered Dr Thoo to enter into
a recognisance to be of good behaviour for three years, a course
authorised by s.19B of the Crimes Act.
Some years earlier, in 1976, Dr Thoo had been convicted
of two offences under s.103(5) of the National Health Act 1953
(Cth) and he had been fined. In its decision, the M.P.R.C. held
that the 1976 convictions were relevant matters which it took
anto account to the detriment of Dr Thoo. The Administrative
Appeals Tribunal, on the other hand, held that the 1976
convictions were not relevant to the matter before it and it
declined to take them into account. The substantial issue in
this appeal is whether the Administrative Appeals Tribunal was
entitled, as a matter of law, to have regard to and to take into
account Dr Thoo's 1976 convictions under s.103(5) of the National
Health Act.
Relevant provisions of the Act read as follows:-
"Interpretation
124B. (1) In this Part, unless the contrary intention
appears -
'relevant offence' means -
(a) an offence against section 128A, 128B, 129, 129AA
or 129AAA of this Act, being an offence that 1s
committed after the commencement of this Part;
(b) an offence against section 129, 129AA or 129AAA of
this Act as in force before the commencement of
this Part, being an offence of which a person has
been convicted after the commencement of this Part;
or
(c) an offence against -
(1) section 6, 7 or 7A of the Crimes Act 1914;
or
(ii) sub-section 86(1) of that Act by virtue of
paragraph (a) of that sub-section,
being an offence that -
(i11) relates to an offence referred to in
paragraph (a) and 1s committed after the
commencement of this Part; or
(iv) relates to an offence referred to in
paragraph (b) and 1s an offence of which a
person has been convicted after the
commencement of this Part.
(2) A reference in this Part to a conviction of an
offence includes a reference to the making of an
order under section 19B of the Crimes Act 1914 in
relation to the offence.
Determinations
124F. (1) Subject to sub-sections 1243 (8) and 124T (3),
a Committee established in relation to a practitioner
shall make a determination in relation to the
practitioner in respect of the commission by the
practitioner of any relevant offence that is the subject
of a notice under section 124D and has not been the
subject of a previous determination by a Committee.
(2) A Committee shall, in making a determination in
relation to a practitioner, determine that -
(a) no action should be taken against the
practitioner;
(3)
(4)
(5)
(c)
(d)
(e)
4.
it should counsel the practitioner;
1t should reprimand the practitioner;
the practitioner is disqualified in respect of
one or more of the following:
(i) the provision of specified professional
services, or the provision of
professional services other than
specified professional services;
(ii) the provision of professional services
to a specified class of persons, or the
provision of professional services to
persons other than persons included in
a specified class of persons;
(iii) the provision of professional services
within a specified location, or the
provision of professional services
otherwise than within a specified
location; or
the practitioner is fully disqualified.
In making a determination in relation to a
practitioner, a Committee shall -
(a)
(b)
without limiting the generality of the matters
to which it may have regard in making the
determination, have regard to the nature of,
and the circumstances concerning the
commission of -
(i) each relevant offence of which the
practitioner has been convicted; and
(12) each offence of which the practitioner
has been convicted before the
commencement of this Part, being an
offence that would have been a relevant
offence if the conviction had occurred
after that commencement; and
comply with Guidelines in force under section
124H.
A determination shall be made in writing.
Where a Committee determines under paragraph (2)(d)
or (e) that a practitioner is disqualified, the
Committee shall specify in the determination the
period over which the disqualification is to have
effect, being a period that ends -
5.
(a) where the determination 1s a review of a
period of disqualification referred to in
sub-section 124D(3) - on or before the day on
which that period of disqualification 1s to
come to an end; or
(b) an any other case - within 5 years after the
day on which the determination comes into
effect."
Guidelines relating to making of determinations
124H. (1) The Minister may, by instrument in writing,
make guidelines to be applied by Committees with respect
the making of determinations under sub-sections 124F(2)
and 124G(2).
(2) Without limiting the generality of the matters to
which guidelines made under sub-section (1) may
relate, guidelines may specify circumstances in
which determinations of specified kinds under
sub-section 124F(2) and determinations under
sub-section 124G(2) may be made.
(3) Sections 48, 49 and 50 of the Acts Interpretation
Act 1901 apply to guidelines made under sub-section
Ti) as if in those provisions references to
regulations were references to guidelines,
references to a regulation were references to a
provision of a guideline and references to repeal
were references to revocation.'"
Section 124F requires an M.P.R.C., in its deliberations,
to have regard not only to the relevant offence that has been
notified to it but also to all other relevant offences and
offences that would have been relevant offences if they had
occurred after the commencement of the new provisions in Part VB
of the Act.
It will be noted that s.124B(1) defines "a relevant
offence". An offence under s.103(5) of the National Health Act
was not a relevant offence as defined. Miss M. Beazley, of
counsel, who appeared for the applicants in this appeal,
6.
submitted that the adjective "relevant" was a purely neutral term
indicating no more than an adjective such as "prescribed".
However, it is unlikely that that was Parliament's intention.
The term "relevant" has a very clear meaning and effect in law.
It distinguishes between those matters that ought to be taken
unto account and those matters that ought not to be considered.
See e.g., $.5(2) of the Administrative Decisions (Judicial
Review) Act 1977 (Cth) which identifies as grounds of judicial
review the "taking an irrelevant consideration into account in
the exercise of a power" and the "failing to take a relevant
consideration into account in the exercise of a power". The
National Health Act uses the adjective "relevant" on several
occasions. See e.g. the definitions of "relevant journey" and
"relevant professional service" in s.12(1) of that Act. Miss
Beazley did not point out to the Court any definition contained
un that Act in which the adjective "relevant" was used and which
did not cover and limit the field of consideration.
The Guidelines issued by the Minister under s.124H of
the Act follow a like pattern. Those Guidelines provide, inter
alia:-
"PART I - PRELIMINARY
Interpretation
1. In these Guidelines;
"the Act" means the Health Insurance Act 1973;
"the amending Act" means the Health Legislation
Amendment Act (No.2) 1985;
"Committee" means a Medicare Participation Review
Committee established under section 124E of the Act
1n response to a notice under section 124D of the
Act;
"relevant offence" has the same meaning as it has
in sub-section 124B(1) of the Act;
"found guilty" means a circumstance referred to in
section 124B(2) of the Act where a relevant offence
1s found proven by a Court without proceeding to
conviction and the Court makes an order under
section 19B of the Crimes Act 1914 in relation to
the offence;
"an offence that would have been a relevant offence
1f the conviction had occurred after the
commencement of section 34 of the amending Act"
means any offence excluded from the definition of
"relevant offence" in section 124B(1) of the Act by
the references in paragraphs (b) and (c)(1v) of the
definition to conviction after the commencement of
Part VB of the Act (the date of commencement being
22 February 1986), and which would otherwise have
come within the scope of that definition.
Exercise of powers under the Act
3.
(1) Nothing in these Guidelines shall be read as
limiting the powers conferred by the Act on a
Committee.
(2) Nothing 1n these Guidelines shall be read as
limiting the capacity of a Committee to take
unto account, in making a determination,
matters the Committee considers relevant to
the making of the determination, being matters
not dealt with in these Guidelines.
The Committee shall bear in mind that its
consideration under these Guidelines of any
relevant offence dealt wath by a Court shall not
extend to a review of the decision of the Court in
relation to that offence.
PART II — MATTERS RELEVANT TO DETERMINATIONS
UNDER SUB-SECTION 124F(2)
Previous Convictions and Previous Determinations
6.
In making a determination under sub-section 124F(2)
of the Act in relation to a conviction of a
relevant offence or relevant offences the subject
of a notice under section 124D of the Act a
Committee shall have regard to the following
matters:
(a)
(b)
(c)
(d)
8.
the nature, and circumstances concerning the
commission, of such relevant offence or
offences, including:
i) the number of such relevant offences;
11) the date of commission of each such
relevant offence;
i11) the seriousness of each such relevant
offence;
iv) the penalty, if any, imposed by the Court
upon the practitioner in respect of each
such relevant offence;
v) the reasons for decision and any other
statements made by the Court in relation
to its consideration of each such
relevant offence;
any offence of which the practitioner has been
convicted before the commencement of section
34 of the amending Act that would have been a
relevant offence 1f the conviction had
occurred after that commencement;
whether a period of disqualification pursuant
to sub-section 19B(7) of the Act as in force
before the commencement of section 34 of the
amending Act was in force in relation to any
such conviction;
whether a determination in relation to such a
period of disqualification was made by the
Minister pursuant to sub-sections 19B(8) or
(9) of the Act as in force before the
commencement of section 34 of the amending
Act, or by a Committee pursuant to sub-section
124F(2) of the Act, and where such a
determination was made;
i) the nature of the determination;
11) the reasons for the making of that
determination;
iii) the effect of that determination;
iv) the conditions, if any, specified in the
determination; and
v) where applicable, the statements in
writing pursuant to sub-section 19B(13)
and (14) of the Act as in force before
the commencement of section 34 of the
amending Act provided by the Minister to
the practitioner in the respect of that
(e)
(£)
(g)
(h)
9.
determination;
any previous conviction of the practitioner
for a relevant offence (whether or not the
offence has been the subject of a notice under
section 124D of the Act or of a determination
by a Committee);
the nature, and circumstances concerning the
commission of a relevant offence being a
relevant offence referred to in (e),
including:
i) the number of such relevant offences;
1i) the date of commission of each such
relevant offence;
11i) the seriousness of each such relevant
offence;
iv) the penalty, if any, imposed by the court
upon the practitioner in respect of each
such relevant offence;
v) the reasons for decision and any other
statements made by the court in relation
to 1ts consideration of each such
relevant offence;
any previous determination made by a Committee
pursuant to sub-sections 124F(2) or 124G(2) of
the Act in relation to such relevant offence
and the reasons given in a notice under
sub-section 124Q(1) for the making of that
determination; and
where any such determination pursuant to
sub-section 124F(2) imposed a period of
disqualification upon the practitioner, the
scope, and the length and date of termination,
of such period of disqualification.
Other Relevant Considerations
7.
In making a determination under sub-section 124F(2)
of the Act in relation to a practitioner, a
Committee shall have regard to the following
matters ~
(a)
(b)
the length of time the practitioner has been
in active professional practice as a
practitioner;
the effect that any particular determination
that Committee may make would have in relation
to the practitioner;
10.
(c) the effect that any particular determination
that the Committee may make would have in
relation to the practitioner's patients and/or
the community in which the practitioner
Practices, in respect of the provision and
quality of medical services; and
(d) any other matters which the Committee
considers relevant.
Making of determination under sub-section 124F(2)
8.
For the purposes of sub-section 124F(2) of the Act,
where a Committee established in relation to a
practitioner is of the opinion that some action
should be taken 1n respect of the practitioner, in
deciding what action should be taken the Committee
shall, unless it considers that special
circumstances exist, have regard to the following
Presumptions -
(a) where the practitioner has been found guilty
of a relevant offence, that a period of
disqualification would not be appropriate.
(b) where the practitioner:
1) has been convicted by a court of summary
jurisdiction of a relevant offence; and
ii) has not on a previous occasion been
convicted or found guilty of a relevant
offence,
that a period of disqualification would not be
appropriate.
(c) where the practitioner:
1) has been convicted by a court of summary
jurisdiction of a relevant offence;
1i) has on a previous occasion been convicted
or found guilty of a relevant offence or
of an offence that would have been a
relevant offence if the conviction had
occurred after the commencement of
section 34 of the amending Act; and
iii) has not previously been disqualified by a
Committee or pursuant to section 19B of
the Act as in force before the
commencement of section 34 of the
amending Act,
that disqualification for a period of not less
than 3 months and not more than one year would
be appropriate."
11.
It will be noted, as a matter of interest, that these
Guidelines do not adopt the extended view of "conviction" adopted
in s.124 B (2) of the Act but distinguish between a conviction,
on the one hand, and a finding of guilty which has given rise to
an order authorised by s.19B of the Crimes Act, on the other.
Notwithstanding the reference in Clause 3 (2) of the
Guidelines to "matters the Committee considers relevant to the
making of the determination being matters not dealt with in these
Guidelines" and to the reference in Clause 7 to "any other
matters which the Committee considers relevant", the Guidelines,
in our opinion, make it clear what offences are to be taken into
account and what effect is to be given to them. The Guidelines
adopt the definition in the Act of "a relevant offence". Under
Part II, which deals with "Matters relevant to determinations
under sub-section 124F(2)" and under the sub-heading "Previous
Convictions and Previous Determinations", the Guidelines require
the M.P.R.C. to take into account, 1n respect of a conviction of
a relevant offence the subject of a proceeding before the
M.P.R.C., the nature and circumstances of the offence including
the number of such relevant offences, the date and commission
thereof, the seriousness thereof, the penalty imposed by the
court in respect thereof and the reasons for decision and other
statements made by the court in relation thereto. Clause 6 also
requires the M.P.R.C. to take into account any previous relevant
offence of the practitioner and any offence that would have been
a relevant offence if the conviction had occurred after the
commencement of the new provisions in the Act. Clause 5
12.
specifically provides that a consideration by the M.P.R.C. of a
relevant offence shall not extend to a review of the decision by
the court in relation to that offence. Finally, Clause 8
provides for a graduated scale of determination taking into
account relevant offences, offences that would have been relevant
offences if they had occurred after the commencement of the new
provisions and the number and seriousness thereof.
In our opinion, it would be inconsistent with the intent
and object of these provisions for an M.P.R.C., and on review the
Administrative Appeals Tribunal, to take into account as relevant
an offence of which the subject practitioner has been convicted
or found guilty but which 1s not a relevant offence as defined or
an offence that would have been a relevant offence as defined if
it had occurred after the commencement of the new provisions.
An M.P.R.C. is not a court of law which, in imposing a
penalty for an offence, may take into account any prior
convictions which appear to it to have a relevance. An M.P.R.C.
has a statutory function, that specified in s.124F(1), namely to
"make a determination in relation to the practitioner in respect
of the commission by the practitioner of any relevant offence
that 1s the subject of the notice under s.124D ... ". If these
words stood on their own, the M.P.R.C. would be restricted to
making a determination in relation to the particular relevant
offence or offences before it and it would not be concerned with
other offences, whether relevant offences as defined or not. The
ambit of matters falling for consideration 1n respect of that
determination 1s extended by the provisions of s.124F(3) which
13.
requires the M.P.R.C. to take into account each other relevant
offence of which the practitioner has been found guilty or has
been convicted and each other like offence that would have been a
relevant offence 1f£ the finding or conviction had occurred after
the commencement of the new provisions. The ambit of the
M.P.R.C.'s consideration is thus established by the provisions of
s.124F(1) and (3). Offences which are not relevant offences or
which would not, if they had occurred at a later point of time,
have been relevant offences are not within that ambit. The
Guidelines correctly recognise this point and likewise limit the
consideration of the M.P.R.C. to relevant offences and to
offences that would have been relevant 1f they had occurred after
the commencement of the new provisions.
In the present case, the M.P.R.C. held that the prior
convictions in 1976 were "special circumstances" within the
meaning of that term in Clause 8 of the Guidelines, thereby
entitling the M.P.R.C. not to give effect to the presumptions
specified in Clause 8. Yet, a circumstance may not be a special
circumstance within Clause 8 unless 1t is a circumstance which 15s
a relevant circumstance, having regard to other provisions of the
Guidelines, particularly Clauses 3, 6 and 7 thereof. The
Administrative Appeals Tribunal posed the question whether as a
matter of law, the earlier convictions were not a relevant and
therefore not a special circumstance. The Administrative Appeals
Tribunal later stated:-
"We have come to the conclusion that it was not open to
the M.P.R.C. to take into account convictions some 7 to
8 years prior to the occurrences forming the basis of
the charges leading to the current proceedings pursuant
to clause 3 of the Guidelines or as special
14.
circumstances, which we consider to be circumstances
relating to 'relevant offences' as defined in the Act
and Guidelines."
It is not entirely clear whether the Tribunal was expressing the
view that, as a matter of fact, not of law, the 1976 convictions
were not relevant to the matters which the Tribunal had to
consider.
However, as the matter has been argued, we express our
view that, as a matter of law, the 1976 convictions were not
within the ambit of the matters that it was relevant to the
Administrative Appeals Tribunal to take into account.
That is not to say that prior criminal behaviour may
not, in a particular case, be admissible in evidence and properly
taken into account as bearing upon the nature and circumstances
of a relevant offence, though the effect of Clause 5 of the
Guidelines, which provides that an M.P.R.C. may not review the
decision of the Court in relation to a relevant offence, and of
Clause 6(a)(v), which requires an M.P.R.C. take into account the
reasons for decision and other statements made by the Court in
relation to its consideration of the relevant offence, must be
kept in mind. Those considerations do not arise in the present
case as the Administrative Appeals Tribunal took the view that
the 1976 convictions were unrelated to and threw no light upon
the relevant offences, with which the Tribunal was concerned.
In our opinion, the Administrative Appeals Tribunal was
correct in excluding from its consideration Dr Thoo's 1976
15.
convictions, which were convictions for offences which were not
and would not, if they had occurred at a later point in time,
have been relevant offences.
The appeal should therefore be dismissed and the first
named applicant should pay the respondent's costs of the appeal.
I certify that this and the
preceding pages are a true copy of
the Reasons for Judgment herein of
their Honours Mr Justice Davies
and Mr Justice Wilcox.
-_
Associate:
Date: Q- ats
Counsel for the applicant: Miss M. Beazley
Solicitor for the applicant: Australian Government
Solicitor
Counsel for the respondent: Dr J. Griffiths
Solicitors for the respondent: Dawson Waldron
Date of hearing: 10 February 1988
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. G.514 of 1987
)
GENERAL DIVISION )
ON _ APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
MINISTER FOR COMMUNITY
SERVICES AND HEALTH
First Applicant
MEDICARE PARTICIPATION
REVIEW COMMITTEE
Second Applicant
AND:
CHEE KEONG THOO
Respondent
CORAM: Davies, Wilcox & Burchett JJ.
PLACE: Sydney
DATE: 9 March 1988
REASONS FOR JUDGMENT
BURCHETT J.
Chee Keong Thoo (who is commonly called Dr. Thoo and may
therefore be referred to by that name) is a medical practitioner
carrying on practice in Nowra on the south coast of New South
Wales. From there he provides medical attention to patients at
Currarong, a village some 40 kilometres away. After a period as
Medical Registrar at Royal Newcastle Hospital in 1973 and 1974,
Dr. Thoo has been in general practice in Australia on his own
account for some 1l years. He has been described as a caring
medical practitioner and 1s well thought of locally. During a
period in the years 1980-81 his professional activities were
interrupted by the necessity to undergo a craniotomy and
radiation therapy for a brain cancer.
Shortly after the doctor's return to practice, he
treated two patients, Mr. and Mrs. Richardson, using acupuncture.
Whilst he had been away undergoing treatment for his own
condition, a new item in respect of treatment by acupuncture had
been added to the schedule of chargeable items for medical
benefit purposes. It has been found as a fact that Dr. Thoo was
not until well after the events in question aware of that item,
and that it was not his fault that he was not so aware. Dr. Thoo
claimed for the acupuncture treatment under another item, which
was not properly applicable since it related to patients in a
critical condition and Mr. and Mrs. Richardson were being treated
for a condition which was not critical. Dr. Thoo's evidence,
expressly accepted by one member of the Administrative Appeals
Tribunal, is that he was either not aware or had forgotten by
reason of his own operation and illness that the item claimed
required the patient to be in a critical condition. (It was
accepted by the Medicare Participation Review Committee, on
appeal from which the matter came before the Administrative
Appeals Tribunal, and 1s not questioned in either the majority or
minority reasons given in the Administrative Appeals Tribunal,
that Dr. Thoo "suffers some memory loss as a result of the
radiotherapy which he received.") However, the majority of the
Administrative Appeals Tribunal make no finding, one way or the
other, concerning this explanation. They are content to note
that Dr. Thoo pleaded guilty to the charges in question.
Dr. Thoo was also found guilty of further charges
relating to claims for treatment given to a Mr. Fitzpatrick and a
Mrs. Moate, who were treated between March and June 1983. In
respect of these charges, there was a dispute whether the
treatment was really acupuncture, as alleged by the prosecution,
or other treatment which would have justified the claims, but the
Magistrate found the offences proved.
Exercising powers under s.19B of the Crimes Act 1914,
the magistrate dismissed a number of the charges, and in respect
of others ordered Dr. Thoo to be discharged upon his entering
into a recognizance. He did not record any conviction. The
magistrate endorsed on the summons a recommendation that Dr. Thoo
be allowed to remain in practice, and his comments reflect a
concern, which counsel for the Director of Public Prosecutions
endorsed, that the residents of Currarong should not lose the
care provided by Dr. Thoo.
It is not suggested in the reasons of the majority of
the Tribunal that Dr. Thoo's offences formed part of any pattern
of overcharging, either in respect of the special area of
acupuncture or generally, and the minority reasons make it clear
that there was no evidence of any systematic course of deceit. A
"very large number" of letters from residents of Currarong was
tendered in support of Dr. Thoo, many of which referred to his
readiness to make calls at a distance at night to visit the sick.
Some 450 out of the 500 residents of the village were listed as
patients of Dr. Thoo's practice. A departmental memorandum
concerning the offences in 1981 and 1983 referred to the
magistrate as having taken into account "the excellent reputation
that Dr. Thoo had established within his local community". Dr.
Thoo himself, in his submissions to the Committee, referred to
the Chinese saying:
"You cannot pour perfume on others without
getting a few drops on yourself".
Dr. Thoo also referred to a report of the Medicare
Benefits Review Committee chaired by Deputy President Layton (of
the Administrative Appeals Tribunal) which recommended the
abolition of item 980, the item under which the magistrate held
Dr. Thoo should have charged. The report includes the comment:
"To restrict the payment of benefits for both
acupuncture and a consultation to a level
below that which may be payable for a
consultation alone is, in the Committee's
view, absurd." [Item 980 has this effect.]
This recommendation, made in 1985 in the first report of the
Medicare Benefits Review Committee, has not been adopted, and the
Medicare Participation Review Committee emphasized that Dr. Thoo
was not entitled to misdescribe a service performed on that
account.
The orders of the magistrate were made on 16 December
1986. On 10 April 1987 Dr. Thoo appeared before a Medicare
Participation Review Committee, set up under the provisions of
Part VB of the Health Insurance Act 1973.
Evidence was placed before the Committee that Dr. Thoo
commenced general practice in 1975 at Sussex Inlet, a small town
south of Nowra. There being no pharmacy in the town, approval
was given to his dispensing his own medicines. In the first
months of his practice, between February and March 1975, he wrote
prescriptions for non-existent patients in order to build up a
stock of drugs to dispense. As a result, Dr. Thoo was convicted
in December 1976 of two offences against s.103(5)(a) of the
National Health Act 1953, and fined $400. It was accepted that
these offences were not "relevant offences" within the definition
in s.124B(1) of the Health Insurance Act, to which reference will
be made, nor would they have been relevant offences if the
convictions had occurred after the commencement on 22 February
1986 of Part VB.
The Committee was unable to come to any positive
conclusion concerning the 1983 offences, to which Dr. Thoo had
pleaded not guilty, but which had been dealt with under s.19B of
the Crimes Act, and it therefore did not take them into account.
Since the Committee was required by clause 5 of the Guidelines,
which will be set out, to refrain from reviewing the decision of
the magistrate, 1t may perhaps be accepted that it meant 1t did
not take the circumstances of the offences into account. It
considered the 1981 matters, and the two convictions under the
National Health Act in respect of the 1975 offences. It took
into account the circumstances of the doctor's practice and the
trauma he had endured by reason of his severe illness till
shortly before the 1981 offences. It determined that Dr. Thoo be
disqualified from participation in the "Medicare" scheme for a
period of three months from lst July 1987.
Dr. Thoo sought review by the Administrative Appeals
Tribunal of the decision of the Committee. The Tribunal by
majority (Deputy President Bannon and Dr. Howell, Member)
substituted a disqualification for three months limited to
professional services involving acupuncture, thus permitting Dr.
Thoo to claim for all services performed by him other than
acupuncture. The third member of the Tribunal (Mr. McMahon,
senior member) , in dissent, would have imposed no
disqualification at all, and would have substituted a reprimand.
Following the decision of the Administrative Appeals
Tribunal, the Minister for Community Services and Health and the
Medicare Participation Review Committee have lodged an appeal, so
called, to this Court. That appeal, of course, is limited to
questions of law, and is in the original jurisdiction of the
Court. The Minister and the Committee are in fact applicants,
though misdescribed in the Notice of Appeal as appellants. What
is sought is the restoration of the decision of the Medicare
Participation Review Committee, although 1t 1s not clear to me
why the Committee, assuming it has capacity to be a party in its
own name, should be an applicant in this Court for relief of that
kind. (Cf. The Queen v. The Australian Broadcasting Tribunal, Ex
parte Hardiman (1980) 144 C.L.R. 13 at 17, 35-6.)
The determinations of the Committee and the Tribunal
were made pursuant to s.124F of the Health Insurance Act 1973
(the Act), as amended by the Health Legislation Amendment Act
(No. 2) 1985 (No. 167 of 1985) providing, by Part VB, for the
setting up of Medicare Participation Review Committees to make
determinations in respect of medical practitioners in relation to
certain offences. In order to understand the points raised upon
the appeal, it is necessary to set out some of the provisions of
Part VB. These provisions are concerned with offences described
by the expression "relevant offence" as defined in s.124B of the
Act.
In sub-s. (2) of section 124B 1t is provided that:
"A reference in this Part to a conviction of
an offence includes a reference to the making
of an order under section 19B of the Crimes
Act 1914 in relation to the offence."
Section 124F provides as follows:
"(1) Subject to sub-sections 124J3(8) and
124T(3), a Committee established in relation
to a practitioner shall make a determination
in relation to the practitioner in respect of
the commission by the practitioner of any
relevant offence that is the subject of a
notice under section 124D and has not been
the subject of a previous determination by a
Committee.
(2) A Committee shall, in making a
determination in relation to a practitioner,
determine that -
(a) no action should be taken against the
practitioner;
(b) it should counsel the practitioner;
(c) it should reprimand the practitioner;
(d) the practitioner is disqualified in
respect of one or more of the following:
(i) the provision of specified
professional services, or the
provision of professional
services other than specified
professional services;
(ii) the provision of professional
services to a specified class of
persons, or the provision of
professional services to persons
other than persons included in a
specified class of persons;
(ili) the provision of professional
services within a specified
location, or the provision of
professional services otherwise
than within a specified location;
or
(e) the practitioner is fully disqualified.
(3) In making a determination in relation
to a practitioner, a Committee shall -
(a) without limiting the generality of the
matters to which it may have regard in
making the determination, have regard to
the nature of, and the circumstances
concerning the commission of -
(i) each relevant offence of which the
practitioner has been convicted;
and
(11) each offence of which the
Practitioner has been convicted
before the commencement of this
Part, being an offence that would
have been a relevant offence if
the conviction had occurred after
that commencement; and
(b) comply with guidelines in force under
section 124H.
(4) A determination shall be made in
writing.
(5) Where a Committee determines under
paragraph (2)(d) or (e) that a practitioner
is disqualified, the Committee shall specify
in the determination the period over which
the disqualification is to have effect, being
a period that ends -
(a) where the determination is a review of a
period of disqualification referred to
in sub-section 124D(3) - on or before
the day on which that period of
disqualification is to come to an end;
or
(b) in any other case - within 5 years after
the day on which the determination comes
into effect."
Section 124H provides for the making by the Minister of
guidelines to be applied by committees. Sub-s.(2) of that
section provides:
"Without limiting the generality of the
matters to which guidelines made under
sub-section (1) may relate, guidelines may
specify circumstances in which determinations
of specified kinds under sub-section 124F(2)
«+. may be made."
Pursuant to section 124H, guidelines were made on 30
September 1986. In clause 1 of those guidelines it 1s expressly
provided that the expression "relevant offence" in the guidelines
"has the same meaning as it has in sub-section 124B(1) of the
Act." But, curiously, a situation of the kind referred to in
s.124F(3)(a)(ii) is the subject of a separate, and differently
worded, definition. The significance of this was not explained
at the hearing of the appeal, and is not obvious. There is no
definition in the guidelines of the word "convicted", but there
1s a definition of the expression "found guilty". That
expression "means a circumstance referred to in s.124B(2) of the
Act where a relevant offence is found proven by a Court without
proceeding to conviction and the Court makes an order under s.19B
of the Crimes Act 1914 in relation to the offence." In clause 2
it is provided that "a Committee is required to have regard to
the matters and comply with the directions set out in Parts II
and III of these Guidelines." But by clause 3 it is provided as
follows:
10.
"(1) Nothing in these Guidelines shall be read
as limiting the powers conferred by the Act
on a Committee.
(2) Nothing 1n these Guidelines shall be read
as limiting the capacity of a Committee to
take into account, in making a determination,
matters the Committee considers relevant to
the making of the determination, being
matters not dealt with 1n these Guidelines."
If the Committee has power to take a relevant matter into
account, 1t must be possible for that matter to be decisive,
despite some contrary indications in other guidelines; for merely
to note a matter, without allowing that it may affect the result,
1s not to take it into account.
In clause 5 it is provided:
"The Committee shall bear in mind that its
consideration under these Guidelines of any
relevant offence dealt with by a Court shali
not extend to a review of the decision of the
Court in relation to that offence."
This clause 1s expressed to apply only to a "relevant offence",
but when it applies it forbids any questioning of the conviction,
finding of guilt or order of the court. No question was raised
concerning the relationship between the guideline and the
obligation stated in s.124F(3) of the Act:
"a Committee shall ... have regard to the
nature of, and the circumstances concerning,
the commission of 'each relevant offence the
subject of a conviction.'"
il.
Part II consists of clauses 6, 7 and 8, which specify a
number of matters to which a committee "shall have regard".
These include the nature, circumstances, number, date of
commission and seriousness of relevant offences, and other
matters such as the penalty imposed by a court and statements
made by the court. Although clause 6 is headed "Previous
Convictions and Previous Determinations", the only offences
referred to in it or in the Guidelines are relevant offences and
offences which would be relevant offences if the conviction had
occurred after an indicated date. Whether such a heading, in an
Act, can assist construction of the Act is discussed in Pearce on
Statutory Interpretation in Australia, 2d ed, paras. 73-74.
Unless a contrary intention appears, the guidelines must be
construed in accordance with the Acts Interpretation Act 1901 as
if they were an Act; Acts Interpretation Act, s.46, the relevant
part of which is quoted later in these reasons. But the function
of the Guidelines, and their structure, suggest the heading may
be of assistance, and may be sufficient to show an intention
contrary to the rule, if its application would deny that
assistance. Indeed, this heading may perhaps be properly
regarded as a heading of a subdivision: see s.13(1) of the Acts
Interpretation Act, 1901.
Clauses 7 and 8(a)(b) and (c) should be set out in full
as follows:
"7. In making a determination under
sub-section 124F(2) of the Act in relation to
a practitioner, a Committee shall have regard
to the following matters -
(a) the length of time the practitioner has
been in active professional practice as
a practitioner;
12.
(b) the effect that any particular
determination that Committee may make
would have in relation to the
practitioner;
(c) the effect that any particular
determination that the Committee may
make would have in relation to the
practitioner's patients and/or the
community in which the practitioner
practises, in respect of the provision
and quality of medical services; and
(d) any other matters which the Committee
considers relevant.
8. For the purposes of sub-section 124F(2)
of the Act, where a Committee established in
relation to a practitioner 1s of the opinion
that some action should be taken in respect
of the practitioner, in deciding what action
should be taken the Committee shall, unless
it considers that special circumstances
exist, have regard to the following
presumptions -
(a) where the practitioner has been found
guilty of a relevant offence, that a
period of disqualification would not be
appropriate.
(b) where the practitioner:
i) has been convicted by a court of
summary jurisdiction of a relevant
offence; and
i1) has not on a previous occasion
been convicted or found guilty of
a relevant offence,
that a period of disqualification would
not be appropriate.
{c) where the practitioner:
i) has been convicted by a court of
summary jurisdiction of a relevant
offence;
li) has on a previous occasion been
convicted or found guilty of a
relevant offence or of an offence
that would have been a relevant
offence if the conviction had
occurred after the commencement of
section 34 of the amending Act;
and
13.
iii) has not previously been
disqualified by a Committee or
pursuant to section 19B of the Act
as in force before the
commencement of section 34 of the
amending Act,
that disqualification for a period of
not less than 3 months and not more than
one year would be appropriate."
It is accepted, as has been said, that the two offences
of which Dr. Thoo was convicted in 1976 were neither "relevant
offences", nor would have been relevant offences if the
convictions had occurred after the commencement of Part VB.
However, the Committee considered that they "constitute special
circumstances permitting us to depart from the letter of (the
guidelines)." But for the Committee's view that there were
special circumstances, it would have held that "the appropriate
sub-paragraph of clause 8 of our guidelines is (a)." By reason
of the special circumstances, the Committee took the view that
sub-paragraph (c) was "more apposite".
The majority of the Tribunal rejected the Committee's
approach. They said:
"We have come to the conclusion that it was
not open to the M.P.R.C. to take into account
convictions some 7 to 8 years prior to the
occurrences forming the basis of the charges
leading to the current proceedings pursuant
to clause 3 of the Guidelines or as special
circumstances, which we consider to be
circumstances relating to 'relevant offences'
as defined in the Act and Guidelines."
The question raised upon the appeal is whether the
majority of the Tribunal erred in law in so concluding.
14.
It may be doubted whether the majority intended to lay
down a proposition of law, or simply to deny that in fact the
particular convictions, which they regarded as stale, were open
to be treated as special circumstances, or 1f taken into account
under cl.3 could have the effect asserted by the Committee. (Cf.
Minister for Immigration and Ethnic Affairs v. Pochi (1980) 31
A.L.R. 666 at 683-4, per Deane J.) However, I shall consider the
appeal on the basis that a proposition of law 1s involved.
A broad discretion is conferred by s.124F(1) and (2) of
the Act itself, which s.124F(3) is careful to preserve by the
words "the generality of the matters to which (the committee) may
have regard in making the determination". Bearing in mind the
express disavowal in the guidelines of any attempt to limit the
powers conferred by the Act (see clause 3), it is clear that
whether or not the previous convictions constitute "special
circumstances" within clause 8, the committee had power to make
the decision which it in fact made. It is equally clear that the
same powers are of ample width to justify the decision made by
the majority of the Administrative Appeals Tribunal, or that
which the dissentient would have made. Section 124F(2) makes
that plain, and s.124G and Part III of the guidelines also
demonstrate that a discretion exists, even in the case where a
practitioner "has previously been convicted or found guilty of a
relevant offence", to take no action at all. Whether that would
be appropriate would, of course, be another matter, and would
depend upon the circumstances.
15.
Not only did the committee have a wide discretion, but
even if it was correct in its view that the two convictions in
the first months of Dr. Thoo's practice in early 1975 constituted
"special circumstances" attracting the "presumption" in clause
8(c), that presumption, upon its own terms and in the light of
the provisions of s.124F(2), would not determine the appropriate
decision. All that paragraph (c) presumes is that
"disqualification" for a period between three months and one year
would be appropriate. Thus it presumes the duration of the
disqualification, but not its nature. Section 124F(2) provides
for different kinds of disqualification, the first of which is a
disqualification from "the provision of specified professional
services", that is, a disqualification of the type in fact
imposed by the majority decision of the Administrative Appeals
Tribunal in the present case, while the last is a
disqualification by which "the practitioner is fully
disqualified", a decision of the type made by the committee.
It follows that, assuming the true construction of
clause 8 of the guidelines supported the committee's approach,
there remained a discretion as to the nature of the
disqualification to be applied if effect were to be given to the
presumption. There remained also a discretion whether to give
effect to the presumption at all. Clause 8 only requires that
regard be had to the presumption; 1t does not contain any
direction other than to have regard to 1t. In the context of the
guidelines as a whole and clause 3 in particular, a broad
discretion stands unimpaired. When one considers the great
variation in culpability, and in the likelihood that particular
16.
matters will or may affect the reliability of a particular
medical practioner's participation in the "Medicare" scheme, the
breadth of this discretion is easily understood. Rigidly
mechanical rules would inevitably produce injustices and, in the
area of the provision of medical services, sometimes detriment to
the community in the unnecessary loss of those services.
Accordingly, the question arises whether the point of
law raised by the appeal is not a sterile one. If the two
convictions in respect of offences committed in 1975 are capable
in law of being regarded as "special circumstances" within clause
8, the questions will remain whether they should in fact have
been found to be special circumstances, and what final decision
is appropriate. The reasons given by both the majority and the
minority in the Administrative Appeals Tribunal challenge a
conclusion that the solution of the legal point would make any
ultimate difference.
The Administrative Appeals Tribunal drew attention to
the distinction, apparently made by paragraphs (a), (b) and (c)
of clause 8, between the case where a practitioner has been
"found guilty of a relevant offence" (see paragraph (a) and
sub-paragraphs (ii) of paragraphs (b) and (c)), and a case where
the practitioner has been "convicted". If that distinction 1s to
be observed in construing clause 8, then although in the Act
reference to a conviction includes a reference to an order under
s.19B of the Crimes Act 1914 (by virtue of s.124B(2)), for the
purposes of clause 8 Dr. Thoo was not "convicted" by the
Magistrate on 16 December 1986 - he was found guilty and orders
17.
were made under s.19B. He was convicted in 1976 of the two
offences previously referred to, but they were not "relevant
offences" within the definition contained in s.124B(1) of the
Act.
By s.46 of the Acts Interpretation Act 1901 it 1s
provided:
"Where an Act confers upon any authority power
to make, grant or issue any instrument
(1anecluding rules, regulations or by-laws),
then -
(a) unless the contrary intention appears,
expressions used in any instrument so
made, granted or issued shall have the
same meanings as in the Act conferring
the power, and this Act shall apply to
any instrument so made, granted or
issued as if it were an Act and as if
each such rule, regulation or by-law
were a section of an Act; ... ."
It seems to me that when the Minister made _ the
guidelines he made an "instrument" within s.46, and he did so
under a power conferred by the Act. The question is whether the
word "convicted" used in clause 8, and particularly clause 8(c),
is an expression which has a meaning in the Act by virtue of
s.124B(2) and, if so, whether a contrary intention appears in
clause 8. The Tribunal thought the clear distinction contained
in that clause between the use of the word "convicted" and the
use of the expression "found guilty" evinces a contrary
intention. The contrast between paragraph (a) and paragraph (b)
certainly supports the Tribunal's view. Furthermore, there are
readily appreciable policy reasons for allowing paragraph (a) to
prevail in cases where the court which heard the prosecution has
18.
chosen, after making a finding of guilt, not to record a
conviction. And it is not the case that against' those
considerations can be placed a consistent usage, in the
guidelines, of expressions defined in the Act in accordance with
the meanings the Act gives those expressions. On the contrary,
as has been mentioned, an expression used in the Act 1s defined
differently in the guidelines, while in the case of another,
which is used in the same sense, the draftsman has been careful
to say so.
On that basis, the question remains whether, as a matter
of law, the committee, or the Tribunal on appeal to it, can
consider a special circumstance to exist by reason of a
conviction, many years earlier at the outset of the medical
practitioner's practice on his own account, of an offence which
is not a ""relevant offence", nor an offence described in
s.124F(3)(a)(ii), but was an offence against the National Health
Act involving the making of a false statement in a prescription
in order to obtain a benefit. It was not argued that "special
circumstances" under clause 8 are not available, on top of the
Committee's broad discretion, to raise a presumption that a
disqualification or a more severe disqualification is
appropriate. The legislative history shows that, 1n this area,
the concept of special circumstances was originally introduced to
allow mitigation of fixed penalties, not to provide for harsher
ones. (See s.19B(18) of the Health Insurance Act 1973, inserted
by Act No. 49 of 1982, a section which was repealed by Act No.
167 of 1985.) Examination of the numerous instances of the use
of the expression "special circumstances", in acts and
19.
regulations, contained in the fourth edition of Stroud's Judicial
Dictionary suggests that, though occasionally used in a neutral
sense (e.g. to express grounds for a change of venue), it 15
almost invariably used to express grounds of excuse, leniency,
allowance or relaxation of some requirement. Any use of the
words "special circumstances" to describe a basis for increasing
something in the nature of a penalty, 1f£ not unknown (TI have not
found such an instance, though the words were used in imposing an
obligation in the section considered in Harris v. Rugby Portland
Cement Co. Ltd. [1955] 1 W.L.R. 648), must at least be rare. Use
of the same adjective, "special", to qualify circumstances so
different, as those mitigating and those aggravating, involves an
awkwardness which readily explains why draftsmen have generally
chosen the expression as suitable for one type of case only. It
is usual for courts to give meaning to the word "special" from
the context, and to identify circumstances of a kind appropriate
to give rise to the excuse or relaxation in question. A word so
apt to be coloured by its context cannot easily be used,
Janus~-like, to look both ways.
If the use of the expression is ambiguous, a question
may arise whether a practitioner should be imperilled by an
ambiguity. However, it is unnecessary in this case to decide the
matter, and it may be that the guideline simply exemplifies an
unusual use of language. I think the point should be regarded as
an open one.
In clause 8, each of the expressions "special
circumstances", "have regard to", and "presumptions" seems to
20.
have been chosen to emphasize that the clause sketches only the
most general outline, for the quidance of the committee or
tribunal in the ordinary case. That guidance is given subject to
the exercise of a discretion having regard also to all the other
matters to which the committee or tribunal is required to have
regard, or which it considers relevant to the making of its
determination.
Bearing in mind the care shown by the draftsman of
clause 8 to avoid laying down any binding rules, it is
particularly important that the broad discretions, created to
give a lively flexibility to the administration of the scheme,
should not by the gradual deposition of judicial decisions become
fossilized into rigidity. Those discretions are intended to be
applied to a great variety of situations. In such a context, the
core of the idea of "special circumstances" is that there is
something unusual or different to take the matter out of the
ordinary course, according to which the presumptions set out in
the clause would be expected to apply. As a result, the ordinary
course appears less appropriate or fair. Cf. Crabtree v.
Hinchcliffe (Inspector of Taxes) [1972] A.C. 707 at 731 per Lord
Reid; Jess v. Scott (1986) 12 F.C.R. 187 at 195; Regina v.
Secretary of State for the Home Department, Ex parte Mehta [1975]
1 W.L.R. 1087; Re: X and the Adoption of Children Ordinance 1965
(1984) 2 F.C.R. 533; Cortez Investments Ltd. v. Olphert & Collins
(1984) 2 N.Z.L.R. 434 at 437, 439, 441. In the reasons of the
majority of the Administrative Appeals Tribunal, reference is
made to Beadle v. Director-General of Social Security (1985) 60
A.L.R. 225 at 228-9, where the joint judgment of Bowen C.J.,
21.
Fisher and Lockhart JJ. discusses the meaning of the expression
"special circumstances" as used in s.102(1)(a) of the Social
Security Act 1947. Their Honours said:
"The legislature has indicated that six months
latitude is sufficient in the normal case.
The Director-General has power to f1x a
longer period in special circumstances.
Presumably in this context special
c1rcumstances must include events which would
render the six months unfair or
inappropriate. eee The matter is one for
the Director-General bearing in mind the
purpose for which the power is given. The
phrase "special clircumstances', although
lacking precision, is sufficiently understood
in our view not to require judicial gloss."
The majority of the Administrative Appeals Tribunal
considered that the circumstances referred to in clause 8 as
special must be "circumstances relating to 'relevant offences' as
defined in the Act and Guidelines." JI do not think the language
implies this restriction. It seems to me it may be open to
regard circumstances as special, though they do not fall within
these limits, if they affect the appropriateness of having regard
to the presumptions set out in the clause. There may be a
temptation in this case, where the quideline 1s invoked to
increase the severity of the decision, to exclude it by applying
a rule of strict construction in favour of the subject. But that
would be short-sighted; for, in another case, an appeal to
"Special circumstances" may be made by a practitioner seeking to
avoid the reach of a presumption. The construction of clause 8
may illustrate what Cardozo J. said about a similar argument (an
appeal to a maxim enjoining an interpretation in favour of a
taxpayer) in Burnet, Commissioner of Internal Revenue v.
Guggenheim (1933) 288 U.S. 280 at 286:
22.
"There are many facets to such a maxim. One
Must view them all, 1f one would apply it
wisely. The construction that is liberal to
one ... may be illiberal to others."
But 1t is not necessary to accept the majority's
restrictive view of "special circumstances" under clause 8, in
order to support their denial of the proposition that the two
convictions un 1976 were available to be considered against Dr.
Thoo. The Act and the Guidelines confer a broad power to take
account of matters within the scope of the inquiry undertaken.
The scope of the inquiry is to be ascertained from the Act and
Guidelines - and particularly s.124F. Nowhere in these is there
any suggestion that a conviction which does not relate either to
a relevant offence or to the equivalent of a relevant offence
(s.124F(3)(a)(i1), clauses 6(b), 8(c)(ii) of the Guidelines) is
to be taken into account against the practitioner. The very
description "relevant offence", though the subject of definition,
is pregnant with meaning. It 1S not just the equivalent of a
neutral expression such as "prescribed offence", which might have
been used - it designates those offences the legislature regarded
as relevant, and does so not the less because the peculiarities
of drafting phraseology have led to the awkward existence of
offences I have called equivalent to relevant offences. A
feature of the legislation which should not be overlooked 1s that
it is intended to be administered by committees in a fairly
informal manner; they are hardly likely to have had thrust upon
them the extremely difficult task of drawing a line between
immaterial convictions and those having some more or less remote
bearing on their inquiry. Parliament drew the line.
If confirmation is needed, it is to be found in clause 5
of the Guidelines. That clause forbids a committee to review the
decision of the court in relation to a relevant offence. It
would be odd if the committee could not review the convictions
which are at the centre of its inquiry, but could review
peripheral convictions. The only reasonable explanation is that
peripheral convictions were not contemplated as being before a
committee.
A conviction which is not relevant cannot constitute a
special circumstance. Accordingly, the majority of the Tribunal
did not err in law in excluding the two convictions from
consideration.
Even if, contrary to the conclusion just stated, regard
could be had to convictions of offences which were neither
relevant offences nor the equivalent of relevant offences, a
question would remain whether, upon the facts of this case, it
was open to the Committee to see the particular convictions in
question as constituting "special circumstances" enabling it to
decline to have regard to clause 8(a). These particular
convictions could hardly be thought to demonstrate that Dr. Thoo
was likely to seek to enrich himself by making false claims upon
Medicare. The offences had been committed for a different and
special purpose, many years before, when Dr. Thoo first commenced
to practice, in an isolated town, on his own account. They were
brought to the attention of the magistrate who dealt with the
later matters, and were not considered by him to be prior
24.
convictions of sufficient importance to persuade him to refrain
from allowing Dr. Thoo the benefit of s.19B of the Crimes Act
1914 in respect of the matters with which he was concerned. The
Guidelines (clause 5) required the Committee to accept the
magistrate's decision. However, it is unnecessary to reach a
conclusion on this point.
The appeal should be dismissed with costs.
I certify that this and the
preceding twenty-three (23)
Pages are a true copy of the
Reasons for Judgment herein of
his Honour Mr. Justice
Burchett.
Yur obec Associate
Dated: 9 March 1988
Counsel for the Appellants: Miss M. Beazley
Solicitors for the Appellants: Australian Government
Solicitor
Counsel for the Respondent: Dr. J. Griffiths
Solicitors for the Respondent: Dawson Waldron
Date of hearing: 10 February 1988