FEDERAL COURT OF AUSTRALIA Selia v Commonwealth of Australia [2017] FCA 7 File number: NSD 1024 of 2015 Judge: PERRY J Date of judgment: 13 January 2017 Catchwords: ADMINISTRATIVE LAW – Judicial Review – Professional Services Review Scheme under Part VAA of the Health Insurance Act 1973 (Cth) - where Professional Services Review Committee found applicant dentist engaged in "inappropriate practice" as defined in s 82 – meaning of "initiating" in s 82 – where applicant billed Medicare for dental services in advance of rendering – where dental services provided by dentists employed by applicant were billed using applicant's medicare provider number – where Determining Authority directed applicant should be reprimanded, counselled and required to repay amount to first respondent – whether pre-billing can constitute "inappropriate practice" – whether conduct of applicant in billing services provided by employees under his medicare number can constitute "inappropriate practice" – whether findings unlawfully made with respect to services rendered after statutory review period – whether Determining Authority failed to have regard to relevant considerations – whether repayment direction legally unreasonable – where no error established – application dismissed. Legislation: Acts Interpretation Act 1901 (Cth) s 15AA, 25D Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6 Health Insurance Amendment (Professional Services) Review Act 2012 (Cth) Schedule 2 Health Insurance Amendment Act (No 1) 1997 (Cth) Health Insurance Act 1973 (Cth) ss 3, 3C, 10, 14, 19, 20, 20A, 79A, 80, 81, 82, 93, 101(2), 106H, 106K, 106KD, 106L, 106Q, 106SA, 106T, 106TA, 106U, 129AC, 129AEA Health Legislation (Professional Services Review) Amendment Act 1994 (Cth) Judiciary Act 1903 (Cth) s 39B Health Insurance Regulations 1975 (Cth) reg 13 Health Insurance (Dental Services) Determination 2007 Second Reading Speech to the Health Legislation (Professional Services Review) Amendment Bill 1993, House of Representatives, Debates (1993) Vol HR 189, p1550-1552 Cases cited: Constitution s 51(xxiiiA) Health Insurance Commission v Grey [2002] FCAFC 130; (2002) 120 FCR 470 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Pradham v Holmes [2001] FCA 1560; (2001) 125 FCR 280 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254 Retnaraja v Morauta (1999) 93 FCR 397 Selim v Lele [2008] FCAFC 13; (2008) 167 FCR 61 Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433 Wong v Commonwealth [2009] HCA 3; (2009) 236 CLR 573 Date of hearing: 9 March 2016 Date of last submissions: 30 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 174 Counsel for the Applicant: MA Robinson SC and Ms J Lucy Solicitor for the Applicant: Unsworth Legal Counsel for the First Respondent: Dr K Stern SC and Mr D Hume Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting appearance save as to costs Counsel for the Third Applicant: The third respondent filed a submitting appearance save as to costs ORDERS NSD 1024 of 2015 BETWEEN: DR GEORGE SELIA Applicant AND: COMMONWEALTH OF AUSTRALIA First Respondent PROFESSIONAL SERVICES REVIEW COMMITTEE NO 812, AS SET UP UNDER S 93 OF THE HEALTH INSURANCE ACT 1973 (CTH) Second Respondent THE DETERMINING AUTHORITY ESTABLISHED BY S 106Q OF THE HEALTH INSURANCE ACT 1973 Third Respondent JUDGE: PERRY J DATE OF ORDER: 13 January 2017 THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the first respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRY J: 1 INTRODUCTION [1] 2 THE SCHEME OF THE ACT [8] 2.1 Payment and assignment of Medicare benefits [8] 2.2 The Review Scheme in Part VAA of the Act [14] 3 FACTUAL BACKGROUND [18] 3.1 Dr Selia's participation in the Chronic Disease Dental Scheme established by the Health Insurance (Dental Services) Determination 2007 [18] 3.2 The referral to the PSR Committee [22] 3.3 The scope of the investigation by the PSR Committee [30] 3.4 The hearing before the PSR Committee [33] 3.5 The PSR Committee's Draft Report under s 106KD [34] 3.6 Dr Selia's submission in response to the Draft Report [39] 3.7 The PSR Committee's Final Report [41] 3.7.1 Overview [41] 3.7.2 The employed dentist finding [48] 3.7.3 The pre-billing finding [51] 3.8 The draft and final determinations by the Determining Authority [56] 4 CONSIDERATION: VALIDITY OF THE PSR COMMITTEE'S FINAL AND DRAFT REPORTS [73] 4.1 The concept of "inappropriate practice" in s 82(1) of the Act [73] 4.2 The pre-billing ground [79] 4.3 The employed dentists grounds [93] 4.3.1 The issues [93] 4.3.2 The submission that the employed dentist findings are not the provision of services and are not "inappropriate practice" [95] 4.3.3 Legal unreasonableness: relevant principles [96] 4.3.4 Were the employed dentist findings legally unreasonable? [105] 4.4 The review period ground [112] 4.5 Additional submission raised by the applicant in reply [123] 4.6 Conclusion: the PSR Committee's Final and Draft Reports [127] 5 CONSIDERATION: THE VALIDITY OF THE REPAYMENT DIRECTION BY THE DETERMINING AUTHORITY [128] 5.1 The relevant considerations ground [128] 5.1.1 Dr Selia's submissions [128] 5.1.2 Relevant considerations [130] 5.1.3 Did the Determining Authority have regard to the relevant considerations? [136] 5.2 The unreasonable sanctions ground [145] 5.2.1 The issues [145] 5.2.2 Construction of s 106U [149] 5.2.3 The Determining Authority's reasons for requiring repayment of 60% of MBS benefits [155] 5.2.4 Is the repayment direction legally unreasonable? [158] 6 CONCLUSION AND RELIEF [174] 1. INTRODUCTION 1 The applicant, Dr Selia, is a dentist who operated a dental practice in Kingsford, New South Wales. The second respondent, the Professional Services Review Committee No 812 (the PSR Committee), is a reviewing authority established under s 93 of the Health Insurance Act 1973 (Cth) (the Act). 2 By way of a final report (the Final Report), the PSR Committee found that Dr Selia had engaged in "inappropriate practice" as defined in s 82(1)(d) of the Act in connection with providing certain services referred to the PSR Committee for investigation under the Act, including: (1) Dr Selia's practice of billing Medicare for dental services in advance of their provision; and (2) the provision of dental services by dentists employed by Dr Selia using his Medicare provider number. 3 The Final Report was prepared following a hearing held by the PSR Committee in August and September 2013 and the provision of an opportunity to Dr Selia to make submissions on a draft report prepared by the PSR Committee (the Draft Report). The Draft Report was provided to Dr Selia on 9 May 2014. 4 The Final Report was received by the Director Professional Services Review (the Director) and the third respondent, the Determining Authority established by s 106Q of the Act (the Determining Authority) on 8 October 2014. On the basis of the PSR Committee's findings, the Determining Authority and directed that Dr Selia should be reprimanded, counselled and required to repay $1,129,167.20 (the repayment direction) to the first respondent, the Commonwealth of Australia (the Commonwealth). 5 The second and third respondents filed appearances submitting to the orders of the Court save as to costs. 6 By an amended originating application for review (amended application) made pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth), Dr Selia challenges the adverse findings made by the PSR Committee in its Draft and Final Report, and the Determining Authority's draft and final determinations together with the Determining Authority's repayment direction. The many grounds of judicial review contained in the amended application in light of the oral and written submissions by the parties reduce to the following broad grounds: (1) conduct constituted by pre-billing for services cannot constitute "inappropriate practice" in the provision of services (the pre-billing ground); (2) conduct constituted by the provision of services by an employee using the applicant's Medicare provider number cannot constitute "inappropriate practice" in the provision of services (the employed dentist grounds); (3) the PSR Committee unlawfully made findings regarding services provided after the statutory review period (review period ground); (4) the Determining Authority unlawfully failed to have regard to the reports prepared by the PSR Committee and submissions of the applicant (the relevant considerations ground); and (5) the sanctions imposed by the Determining Authority were legally unreasonable including on the ground that it was unreasonable for the Determining Authority to require Dr Selia to repay to the Commonwealth part of the medical benefits paid to him in respect of services for which he billed before they were provided where those services were later rendered (the unreasonable sanctions ground). 7 For the reasons given below, the grounds of judicial review are not made out and the amended application must be dismissed. 2. THE SCHEME OF THE ACT 2.1 Payment and assignment of Medicare benefits 8 The parties were agreed that the Act applied as at 19 April 2011. In this regard, I note that there have been some amendments to the Act since that time. For example, the Health Insurance Amendment (Professional Services) Review Act 2012 (Cth) made various amendments to ss 106SA, 106T, 106TA and 106V of the Act and those amendments applied to the Determining Authority at the time that it made the draft and final determinations: see Sched 2, items 42 and 51. However, the parties did not consider that any of those amendments affected the issues in these proceedings. 9 The Act has the practical effect of requiring those medical practitioners who wish to practise as general practitioners to participate in the Medicare scheme which in turn requires those practitioners not to engage in inappropriate practice: Wong v Commonwealth [2009] HCA 3; (2009) 236 CLR 573 (Wong) at 638 [224] (Hayne, Crennan and Kiefel JJ). As their Honours then held, "[i]t therefore follows that the Health Insurance Act practically compels those practitioners to abide by a particular standard of professional behaviour in connection with rendering or initiating services" (Wong at 638 [224]). 10 That practical compulsion arises by reason of the provisions for the payment of Medicare benefits in respect of professional services. In this regard, s 10(1) of the Act provides that a Medicare benefit is payable for a professional service where, relevantly, medical expenses are incurred in respect of a professional service rendered in Australia. The amount of the benefit payable is calculated as a set percentage of the Schedule fee being (leaving aside services part of an episode of hospital treatment) 100% of the Schedule fee for a service prescribed by regulations or in any other case, 85% of the Schedule fee (see s 10(2)(aa) and (b) respectively). Section 14 provides that the amount of Medicare benefit payable in respect of a professional service shall not exceed the medical expenses incurred in respect of the professional service save for certain cases covered by private health insurance. Section 19 prescribes that Medicare benefits are not payable in respect of certain professional services, including where the test is not reasonably required or there has been a failure to record prescribed details of the service provided. Specifically, s 19(5) and (6) provide that: (5) Unless the Minister otherwise directs, a medicare benefit is not payable in respect of a health screening service, that is to say, a professional service that is a medical examination or test that is not reasonably required for the management of the medical condition of the patient. (6) A medicare benefit is not payable in respect of a professional service unless the person by or on behalf of whom the professional service was rendered, or an employee of that person, has recorded on the account, or on the receipt, for fees in respect of the service or, if an assignment has been made, or an agreement has been entered into, in accordance with section 20A, in relation to the medicare benefit in respect of the service, on the form of the assignment or agreement, as the case may be, such particulars as are prescribed in relation to professional services generally or in relation to a class of professional services in which that professional service is included. 11 Section 20 provides that the Medicare benefit in respect of a professional service is payable by the Medicare Australia CEO on behalf of the Commonwealth to the person who incurs the medical expenses in respect of that service. However, where a Medicare benefit is payable to an eligible person in respect of a professional service (the eligible person), s 20A provides that the eligible person may enter into an agreement with the person by whom (or on whose behalf) the professional service is rendered (the practitioner) in accordance with the approved form under which the eligible person assigns her or his right to payment of the Medicare benefit to the practitioner and the practitioner accepts the assignment in full payment of the medical expenses incurred in respect of the professional service. Section 20A(3) provides that where an assignment takes effect or an agreement under s 20A is entered into with respect to a Medicare benefit, the Medicare benefit is (subject to an exception not presently relevant) payable in accordance with the assignment or agreement. In the present case there were assignments pursuant to s 20A of the Act. 12 In short, therefore, as the Full Court held in Selim v Lele [2008] FCAFC 13; (2008) 167 FCR 61 at 80 [47] (in a passage expressly approved by French CJ and Gummow J at 595 [68] on appeal in Wong): Those sections [i.e. 10, 20 and 20A] assume that a medical practitioner has rendered a professional service to an eligible person and has rendered a fee for that service, and provides a scheme whereby either the eligible person, if he or she has paid that fee, becomes entitled to a Medicare benefit or, if the eligible person has not paid that fee, the medical practitioner becomes entitled to the Medicare benefit. Those sections provide for the payment of a medical practitioner's fee for a professional service when that professional service has been rendered in response to an eligible person's request. 13 It follows, as the Commonwealth submits, that any claim for payment in respect of a Medicare benefit by the practitioner is predicated upon a medical expense having been incurred in respect of the service which, in turn, is predicated upon the service having been rendered. 2.2 The Review Scheme in Part VAA of the Act 14 Part VAA of the Act (ss 79A—106ZR) prescribes a multi-tier process described as the Professional Services Review Scheme (the Review Scheme). That scheme provides for the review and investigation of the provision of professional services in the medical field, including dentistry, to determine whether a person has engaged in inappropriate practice, as s 80(2) explains. The object of the Part is set out in s 79A, namely: … to protect the integrity of the Commonwealth medicare benefits and pharmaceutical benefits programs and, in doing so: (a) protect patients and the community in general from the risks associated with inappropriate practice; and (b) protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice. 15 Pivotal to the operation of the Review Scheme in Part VAA therefore is the concept of "inappropriate practice", being the standard with which all medical practitioners wishing to practice must, by operation of the Act, in practical terms comply. The concept of inappropriate practice is examined in detail later in these reasons in dealing with the applicant's submissions as to its proper construction. 16 The main features of the Review Scheme are summarised in s 80 relevantly as follows: … (3) The Medicare Australia CEO can request the Director to review the provision of services by a person and the Director must decide whether to undertake a review. (4) Following a review, the Director must: (a) decide to take no further action in relation to the review; or (b) enter into an agreement with the person under review; or (c) make a referral to a Committee. … (6) A referral to a Committee initiates an investigation by the Committee into the provision of the services specified in the referral. The Committee can investigate any aspect of the provision of the referred services and its investigation is not limited by any reasons given in a request for review or a Director's report following a review. (7) Committee members must belong to professions or specialities relevant to the investigation. (8) Committees can hold hearings and require the person under review to attend and give evidence. Committees also have the power to require the production of documents (including clinical records). (9) Committees can base findings on investigations of samples of services. (10) If a Committee finds that the person under review has engaged in inappropriate practice, the finding will be reported to the Determining Authority. The Determining Authority decides what action to take. (11) Provision is made throughout the scheme for the person under review to make submissions before key decisions are made or final reports are given. (12) A Committee cannot make a finding of inappropriate practice unless it has given the person under review: (a) notice of its intention to do so; and (b) the reasons for the finding; and (c) an opportunity to respond. 17 If as a consequence of this process, a practitioner is found to have engaged in inappropriate practice, among other consequences the Determining Authority must make a direction under s 106U but has a discretion as to which directions may be made. Directions which may be made under s 106U include a direction that the practitioner be reprimanded, be required to repay to the Commonwealth Medicare benefits paid for services or a class of services rendered in connection with the inappropriate practice, or be disqualified from the provision of services under the Act (s 106U(1)). 3. FACTUAL BACKGROUND 3.1 Dr Selia's participation in the Chronic Disease Dental Scheme established by the Health Insurance (Dental Services) Determination 2007 18 Dr Selia participated in the Chronic Disease Dental Scheme (CDDS). The CDDS was established by the Health Insurance (Dental Services) Determination 2007 (the 2007 Determination) made by the Minister under s 3C of the Act. In essence, the 2007 Determination brought the provision of dental services to people with chronic medical conditions and complex care needs within the Medicare benefit scheme. The Determination took effect from 1 November 2007. The parties were agreed that the Determination as at 20 June 2008 applied. 19 A dental service provided in accordance with the 2007 Determination was to be treated for the relevant provisions (i.e. provisions of the Act and regulations relating to professional services or medical services) as if it were both a professional service and a medical service and there were an item in the general medical services table that related to the service and specified for the service a fee, being the fee mentioned in Schedule 1 to the Determination (2007 Determination at [4]). The 2007 Determination also capped the total of all amount of Medicare benefits that could be paid or payable for dental services provided to a person in a two year period (2007 Determination at [5]). 20 The purpose of the Determination was to improve the oral health or function of eligible patients (2007 Determination at [11]). An "eligible patient" was a person who (among other things) was referred by a general practitioner to an eligible dentist under [9] of the Determination for a dental service in circumstances where the patient's oral health was impacting (or was likely to impact) on her or his general health (2007 Determination at [6]). An "eligible dentist" was a dental practitioner registered with Medicare as a dentist who could provide services to which any of the items in Part 1 of Schedule 1 applied (2007 Determination at [3]). 21 Schedule 1 prescribed those itemised services for which a Medicare rebate could be obtained for the provision of dental services pursuant to the scheme and the amount of the fee payable for the service. There were four items relevant in this case as follows: Item Service Fee ($) Group A1 — Diagnostic services Subgroup 1 — Examinations 85011 Comprehensive oral examination, including: 47.60 (a) evaluation of all teeth, their supporting tissues and the oral tissues to record the condition of these structures; and (b) recording an appropriate medical history and any other relevant information (Item is subject to section 14) … Group A7 — Crown and Bridge … Subgroup 1 — Crowns 85615 Full crown, veneered — indirect 1 035.30 … Subgroup 5- Implant Prostheses … 85661 Fitting of implant abutment — each abutment 520.10 … 85672 Full crown attached to osseointegrated implant, veneered — indirect 1 233.30 3.2 The referral to the PSR Committee 22 On 21 June 2012, the delegate of the Chief Executive of Medicare (the delegate) wrote to advise Dr Selia that concerns earlier raised with him by Medicare with respect to his practice profile remained. The letter identified concerns relating to a number of subgroups, namely, diagnostic services, oral surgery, endodontics, restorative services, crown and bridge, and general services. The letter stated that during the review period, Dr Selia rendered 17,700 services to 1075 patients across these subgroups and that he was assigned to the 99th percentile or higher of dentists for the rendering of items within these subgroups in Australia. The letter extended an opportunity to Dr Selia to provide a written submission outlining additional information which may address these concerns. 23 On 23 July 2012, Dr Selia provided a written submission in which he explained among other things that: …I did not carry out all the specified services even though the claims for those services were raised under my provider number. As you are aware, many services were provided by other clinicians employed by me. During the period of review there were 16 other dentists, two hygienists and one prosthetist employed at different times for varying periods at the various locations owned by me. That factor alone has provided the unusually high percentiles recorded against my provider number… Also, my practice used to charge the patients for certain of the dental services in a group on an upfront in one single claim for convenience. I now recognise that this practice is not acceptable to Medicare and from 14 May 2012, grouped dental services are no longer billed in that fashion. 24 Pursuant to s 86 of the Act, on 9 August 2012, the delegate wrote to the Director requesting that the Director review the provision of services by Dr Selia for the period 1 April 2011 to 31 March 2012 (the review period) for the purpose of considering whether Dr Selia may have engaged in inappropriate practice within the meaning of s 82 of the Act during the review period. The request noted that the delegate was particularly concerned about: Concern A: Rendered services described in the following subgroups of Group N1 (Services by Eligible Dentists) of the Medicare Benefits Schedule (MBS): • Subgroup 1 – Diagnostic services • Subgroup 4 – Oral surgery • Subgroup 5 – Endodontics • Subgroup 7 – Crown and bridge • Subgroup 10 - General service 25 In giving reasons for these concerns in the request, the delegate referred to the statistically high claims for Medicare benefits and pharmaceutical benefits for services rendered and initiated by Dr Selia in the review period when compared with data concerning the practice of all other active dentists registered with Medicare in Australia, on the other hand. That gave rise to a concern that peers may not consider it appropriate to perform certain services at the rate at which they were rendered by Dr Selia. 26 Section 93(1) confers power on the Director to set up a PSR Committee in writing in accordance with Division 4 of the Act and to make a referral to the PSR Committee to investigate whether the person under review engaged in inappropriate practice in providing the services specified in the referral. The PSR Committee is an expert committee which must comprise a Deputy Director of Professional Services Review (appointed under s 85 by the Minister with the agreement of the Australian Medical Association Ltd) and at least two other Panel members who are members of the profession or specialties relevant to the field in which the practitioner under review practised (s 95). Section 95(6) also permits an additional Panel member to be appointed if the Director considers that it is desirable to do so in order to give the Committee "a wider range of clinical expertise, having regard to the services specified in the referral." Referrals must comply with guidelines about their content and form (s 93(3), (4) and (5)). 27 On 6 May 2013, by an instrument under s 93 of the Act, the Director set up the PSR Committee and made a referral to it (the Referral). The PSR Committee was comprised of a Deputy Director and two other members, all of whom were dentists. The instrument stated that: The Committee is set up to investigate whether Dr George Selia… Kingsford NSW 2032, engaged in inappropriate practice in providing the following services: • MBS item 85011 [comprehensive oral examination], 85661 [fitting of implant abutment], 85672 [full crown attached to osseointegrated implant] and 85615 [full crown, veneered] services provided by Dr Selia at or from his practice locations within Australia during the review period, 1 April 2011 to 31 March 2012. 28 As the Commonwealth submits, the Referral is an instrument made in the context of the Act and accordingly should be construed consistently with it. 29 In compliance with s 93(6), the Director attached a written report for the PSR Committee in respect of the services to which the Referral related giving reasons why the Director considered that Dr Selia may have engaged in inappropriate practice in providing the services. In his report, the Director had regard to written submissions from Dr Selia dated 19 February 2013 but was not convinced that a PSR Committee could not make a finding of inappropriate practice. The Director concluded that: …Dr Selia may have engaged in inappropriate practice as defined by the Act, in that he may have: • Not satisfied the requirements for the relevant item in the MBS • Not provided an appropriate level of clinical input into the services • Kept records that were deficient in essential clinical information • Provided services that were not medically necessary. 3.3 The scope of the investigation by the PSR Committee 30 Neither the Director's report to the PSR Committee under s 93(6)(a) nor the reasons for any referral under s 86 or the Referral itself limited the PSR Committee's investigation of the referred services: s 106H(3). Importantly, however, s 106H(1) provides that: (1) The Committee is to make findings only in respect of the referred services. (emphasis added) 31 As the applicant contends, this means that the Referral sets the parameters within which the PSR Committee was to undertake its review, both in terms of: (a) the subject matter of the investigation and findings; and (b) the review period. 32 On the other hand, s 106H(2) provides that the PSR Committee is not required to have regard to conduct in connection with rendering or initiating all of the referred services. Rather, its task of making findings with respect to the referred services is facilitated by s 106K which provides that the PSR Committee can make findings about a sample of the referred services and apply those findings across the relevant class of referred services (see further at [37] below). 3.4 The hearing before the PSR Committee 33 The PSR Committee held a hearing on 29 and 30 August and 5 and 6 September 2013 in accordance with its obligation to do so under s 101(2) of the Act where it appears to the Committee that the person under review may have engaged in inappropriate practice in providing the referred services. During the hearing, the Committee questioned and heard evidence from Dr Selia, who had legal representation throughout the hearing, and examined extracts from the clinical records relevant to the referred services. In accordance with s 103 of the Act, Dr Selia and his lawyers made oral submissions at the hearing and provided written submissions dated 9 October 2013 after the hearing. 3.5 The PSR Committee's Draft Report under s 106KD 34 Section 106KD requires a PSR Committee to prepare a written draft report of preliminary findings setting out its reasons for the preliminary findings. In accordance with its statutory obligations of procedural fairness as articulated under ss 106H(4) and (5) and 106KD(3), the PSR Committee provided its Draft Report to Dr Selia on 9 May 2014, together with an invitation to Dr Selia to make written submissions suggesting changes to the Draft Report within one month. 35 In its Draft Report, the PSR Committee made preliminary findings that during the review period Dr Selia engaged in inappropriate practice in connection with providing the referred services, namely: In particular, the Committee finds that the conduct of Dr Selia in connection with providing the services referred to below would be unacceptable to the general body of dentists as defined in section 82(1)(d) of the Health Insurance Act 1973 (the Act): • 74% of the MBS item 85011 services • 100% of the MBS item 85615 services • 100% of the MBS item 85661 services • 100% of the MBS item 85672 services. … 36 The PSR Committee further explained in its preliminary finding that: In making the findings in relation to MBS item 85011 [comprehensive oral examination], 85615 [full crown, veneered], 85661 [fitting of implant abutment] and 85672 [full crown attached to osseointegrated implant], the Committee has applied the Health Insurance (Professional Services Review – Sampling Methodology) Determination 2006 made under section 106K(3) of the Act to its findings in the relevant Appendices. 37 As earlier mentioned, 106K permits the Committee to have regard to samples of services and prescribes certain consequences which flow where findings of inappropriate practice are made based upon such samples. That section relevantly provides that: (1) The Committee may, in investigating the provision of services included in a particular class of the referred services, have regard only to a sample of the services included in the class. (2) If the Committee finds that a person has engaged in inappropriate practice in providing all, or a proportion, of the services included in the sample, then, the person under review is taken, for the purposes of this Part, to have engaged in inappropriate practice in the provision of all, or that proportion, as the case may be, of the services included in the class from which the sample is chosen. (3) The Minister may make written determinations specifying the content and form of sampling methodologies that may be used by Committees for the purposes of subsection (1). … (5) A determination by the Minister under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. 38 The PSR Committee's reasons were set out in appendices 1 to 4 inclusive to the preliminary findings. 3.6 Dr Selia's submission in response to the Draft Report 39 On 24 June 2014, the legal representative for Dr Selia provided a submission to the PSR Committee in response to the Draft Report. With respect to the issue of pre-billing, Dr Selia relied among other things upon a letter dated 15 April 2011 from a Medicare inspector, Dr Patrick Dalton AM, in which he reported to the Dental Council of New South Wales following an inspection of Dr Selia's practice the previous day. In that letter, Dr Dalton said among other things that: …The requirements of participating in the Medicare scheme were discussed and my request to see three patient records of each of the dentists practicing at this address. These were produced and discussed with the practice manager. All were at the standard required to be kept. All treatment plans were fully set out and signed by the patient. Where the treatment agreed to was not [sic] cover in full by Medicare the patient had signed consent to cover this extra amount. It is my opinion that the Medicare form and records are being correctly completed and stored. 40 No issue was raised by Dr Dalton in the letter with respect to Dr Selia's practice of pre-billing. In this regard, Dr Selia gave evidence that he understood that Dr Dalton was happy with what was revealed from the patient files he inspected and that he took that to mean that his procedures, including his billing procedures, were satisfactory. It was submitted to the PSR Committee that Dr Selia's belief in this regard was reasonable and that if his peers were aware of his reasonable belief on this question, they would not condemn his conduct as sufficiently worthy of opprobrium to justify a finding of inappropriate practice. 3.7 The PSR Committee's Final Report 3.7.1 Overview 41 Under s 106L(1B), the final report of the Committee cannot include a finding of inappropriate practice unless the finding and the reasons for the finding were included in the draft report under s 106KD. 42 The PSR Committee unanimously adopted the same findings in the Final Report as had been foreshadowed in its Draft Report. Those findings are set out above at [35]. 43 The PSR Committee stated that in making its findings, it had applied "its combined professional expertise", and had regard to the Referral and its attachments, the clinical records provided by Dr Selia in response to the Notices to Produce and after the hearing, Dr Selia's evidence, exhibits and other material provided in connection with the hearing, and the submissions provided after the hearing on behalf of Dr Selia dated 9 October 2013 and 24 June 2014 under s 106KD(3) of the Act. The PSR Committee also stated that it had had regard to the Medicare Benefits Schedule (MBS) dated 1 January 2011 and 1 November 2011. 44 The PSR Committee also explained that its findings were reached by applying the sampling methodology authorised by s 106K of the Act for each class because the PSR Committee decided to investigate services in the particular classes which were the subject of the Referral. The following tables were included by the PSR Committee in its Final Report to indicate the outcome of the PSR Committee's examination of Dr Selia's conduct in connection with those services: Class (MBS item) 85011 85615 85661 85672 Class size 500 932 1110 423 Number of services examined 30 28 30 30 Number of services involving inappropriate practice 26 28 30 30 Percentage of services involving inappropriate practice 86% 100% 100% 100% Percentage of services involving inappropriate practice for extrapolation to whole of class 74% 100% 100% 100% 45 The PSR Committee's reasons for the finding of inappropriate practice may be summarised as follows. (1) Dr Selia pre-billed for a large number of MBS items. (2) Dr Selia did not provide an appropriate level of clinical input into MBS items. (3) Dr Selia did not satisfy the MBS requirements for MBS items. (4) Dr Selia kept records that were deficient in essential clinical information. 46 In relation to the specific MBS items the subject of the referral, the PSR Committee gave an overview as follows: MBS item 85011 46. In respect of each of the services referred to in Tables 2A and 2B of Appendix 1, the Committee's finding is that Dr Selia engaged in inappropriate practice for one or more of the following reasons: • for 23 of the 26 services found inappropriate, the records kept by Dr Selia were deficient in essential clinical information. In particular, some or all of the following information was absent: - a documented evaluation of the patient's oral cavity before the treatment plan was made, including such things as the periodontal and soft tissues status, occlusion and the level of hygiene - notation regarding observations about disease - the significance of the medical history or the medical history itself • for 3 of the 26 services found inappropriate, the services were not provided by Dr Selia, but were provided by a dentist employed by Dr Selia and billed using Dr Selia's Medicare provider number. MBS item 85615 47. With respect to each of the services referred to in Tables 2A and 2B of Appendix 2, the Committee's finding is that Dr Selia engaged in inappropriate practice for one or more of the following reasons: • for all services examined, the Committee found that Dr Selia had not satisfied the requirements of the legislation in that: - Dr Selia billed each MBS item 85615 service on a date earlier than the services were provided or intended to be provided. During the initial consultations, the patients' treatment plans were established. The treatment plans included the scheduling of the MBS item 85615 services examined. The MBS item 85615 services were billed (either on the day of or within a few days of the initial consultations), but the MBS item 85615 services, were then not provided until a later date, and - Dr Selia's conduct of billing for an MBS service before it was provided would be unacceptable to the general body of dentists • for five of the services examined, Dr Selia did not provide an appropriate level of clinical input and provided services that were not clinically relevant as the services would not be generally accepted by the dental profession as being necessary for the appropriate treatment of the patient. MBS item 85661 48. In respect of each of the services referred to in Tables 2A and 2B of Appendix 3, the Committee's finding is that Dr Selia engaged in inappropriate practice for one or more of the following reasons: • for all services examined, the Committee found that Dr Selia had not satisfied the requirements of MBS item 85661 in that: - Dr Selia billed each MBS item 85661 service on a date earlier than the services were provided or intended to be provided. During the initial consultations, the patients' treatment plans were established. The treatment plans included the scheduling of the MBS item 85661 services examined. The MBS item 85661 services were billed (either on the day of or within a few days of the initial consultations), but the MBS item 85661 services, were then not provided until a later date, if they were provided at all. - Dr Selia's conduct of billing for an MBS service before it was provided would be unacceptable to the general body of dentists - additionally, when providing the service Dr Selia billed the service as MBS item 85661, described in the MBS as the fitting of an implant abutment, yet he inserted a one-stage implant, being a service that the MBS stated could be provided only by a specialist dentist under MBS item 88661 - Dr Selia's conduct of billing for the fitting of abutments when one-stage implants were inserted would be unacceptable to the general body of dentists. • for one of the services examined, the committee found that Dr Selia did not provide an appropriate level of clinical input; provided a service that was not clinically relevant as the service would not be generally accepted by the dental profession as being necessary for the appropriate treatment of the patient; and kept a record that was deficient in clinical information. MBS item 85672 49. In respect of each of the services referred to in Table 2 of Appendix 4, the Committee's finding is that Dr Selia engaged in inappropriate practice for the following reason: • for all services examined, the Committee found that Dr Selia had not satisfied the requirements of MBS item 85672: - Dr Selia billed each MBS item 85672 service on a date earlier than the services were provided or intended to be provided. During the initial consultations, the patients' treatment plans were established. The treatment plans included the scheduling of the MBS item 85672 services examined. The MBS item 85672 services were billed (either on the day of or within a few days of the initial consultations), but the MBS item 85672 services, were then not provided until a later date, and - Dr Selia's conduct of billing for an MBS service before it was provided would be unacceptable to the general body of dentists 47 While additional practices were found to be inappropriate in relation to MBS items 85011, 85615 and 85661, the applicant's challenge to the Final (and Draft) Report relates only to the findings of inappropriate practice with respect to: (1) the pre-billing of services provided by or to be provided by Dr Selia for MBS items 85615, 85661 and 85672 (the pre-billing findings); and (2) the use of dentists to render services on Dr Selia's behalf for items 85011 (the employed dentists finding) . It is necessary therefore to set out in some detail the reasons given by the PSR Committee for finding that these practices constituted inappropriate practice. 3.7.2 The employed dentist finding 48 It was not in dispute before the PSR Committee that Dr Selia had a practice whereby practitioners employed by him were rendering services under his provider number. However, he submitted that employed dentists could render services under his provider number based upon the definition of "provides services" in s 81(2) of the Act. That submission was rejected by the PSR Committee. Rather, the Committee found in its Final Report at [22] that in its opinion: In Part VAA, this defined phrase … is used in order to ensure that the review of services under Part VAA is broad enough to encompass not only those services rendered or initiated by the practitioner, but also those that may have been rendered or initiated by a practitioner employed by the person under review or by a body corporate of which the person under review is an officer. 49 However, the PSR Committee continued that this expanded concept does not apply elsewhere in the Act. It will be recalled that under the 2007 Determination, a dental service provided in accordance with the Determination is to be treated as if it were a "professional service and a medical service" under the Act (see above at [19]). Thus, while the PSR Committee noted that s 20A and s 19(6) (summarised at [10]-[11] above) indicate that services may be rendered "on behalf of" a practitioner, it also noted that "the Act limits the categories of practitioners for whom services may be rendered on their behalf, and places restrictions on who may render services on behalf of certain practitioners." The PSR Committee referred by way of example to the definition of "professional service" in s 3 of the Act. While that definition permitted services to be rendered on behalf of medical practitioners, importantly it did not permit another medical practitioner to render a professional service on behalf of another medical practitioner: see s 3(17) of the Act. Further, the PSR Committee referred to s 19(6) providing that a Medicare benefit is not payable in respect of a professional service unless the person has recorded prescribed particulars on the account or receipt for fees. Those particulars include relevantly the name of the practitioner who provided the professional services and "a statement that the professional service was provided by that person": see reg 13(13), Health Insurance Regulations 1975 (Cth). 50 Secondly, the PSR Committee found that the conduct of Dr Selia in using employed dentists in this manner was unacceptable to the general body of dentists, finding among other things that the general body of dentists would have expected a dentist taking advantage of the Medicare scheme to familiarise herself or himself with its requirements, especially when engaged in such a substantial enterprise: see further at [109] below. 3.7.3 The pre-billing finding 51 In finding that Dr Selia had engaged in inappropriate practice by pre-billing for services, the PSR Committee rejected Dr Selia's submission that he had considered he was entitled to charge by pre-billing for services and that he was "fortified in this view by the fact that the inspectors from Medicare twice inspected his books and examined his practice, and did not raise any concerns about his billing procedure". In so finding, the PSR Committee explained that it: 39. … notes the oral evidence of Dr Selia at the hearing that he did not know whether or not the pre-billing practice was discussed with the Medicare inspector because he was not in the room when the inspector spoke with his Practice Manager. The Committee finds it highly unlikely that a Medicare inspector would sanction billing for a service before it had been performed because such conduct is clearly contrary to the requirements of the legislation, there was no guarantee that future services would ever be performed, and Dr Selia did not have an adequate system to guarantee that non-performed services would be refunded. 52 Similarly at [69], while acknowledging the possibility that the Medicare inspector, Dr Dalton, would have noticed that patients have consented to be pre-billed for services, the PSR Committee regarded as that as "speculative". The PSR Committee further explained at [69] that: ….the Committee does not know what particular records were shown to Dr Dalton and does not know whether or not Dr Dalton appreciated that patients were being pre-billed. It is apparent from Dr Selia's [sic] letter that he had a number of specific matters with which he was concerned, namely that treatment plans were fully set out and signed, that patients had consented to cover costs not covered in full by Medicare, and that Medicare forms were being correctly completed and stored. It is likely that he checked to see if those matters were properly addressed, but in so doing, failed to notice the pre-billing. The Committee remains of the view that it is highly unlikely that a Medicare inspector would have sanctioned pre-billing of services, had the inspector observed evidence of such a practice, especially given the clear emphasis in the scheme documents on the prohibition of that particular practice. 53 With respect to the legislative provisions, the PSR Committee referred to the use of the past tense in s 19(6) of the Act providing that a Medicare benefit is not payable unless a service "was rendered" and in regulation 13 providing that a valid claim must state the date on which the service "was given", that the service "was provided" and the address at which the service "was provided". The PSR Committee formed the opinion that "these provisions cannot be read as if 'was' were substituted with 'might be' or will be'. In any event, the requirement to specify the date on which the service was provided makes nonsense of any such contention" (at [40]). The PSR Committee also noted that the Medicare Benefits Schedule Dental Services applicable during the review period stated at page 21 in bold and italicised text in a box immediately under heading "Claiming under Medicare": Under Medicare, patients cannot be billed for a service until it has been provided (i.e. dentists cannot charge patients for services that are identified in the patient's dental plan, but have not yet been provided. This includes taking a deposit for a proposed service). 54 As to the finding that the pre-billing practice would be unacceptable to the general body of dentists, the PSR Committee found: 42. The Committee is of the view that given the plain language of the legislation and the MBS, and that particular care needs to be exercised when claiming public monies (not only is there an ethical responsibility in relation to such matters, but false claims may result in criminal liability), the general body of dentists would regard pre-billing of services that had not yet been rendered to be such a gross departure from the standard expected of dentists in claiming medicare benefits that it amounts to unacceptable conduct in connection with rendering or initiating services. 55 The PSR Committee also found that [67] that "the general body of dentists would have expected Dr Selia to have familiarised himself properly with the requirements for the payment of Medicare benefits, and that his conduct of pre-billing of services would be unacceptable to them." In this regard, the PSR Committee concluded that: 70. Post-service billing is a legal requirement, not an administrative nicety, and the Committee's role in examining Dr XXX's [sic] conduct in connection with the rendering of services includes examining his conduct, not only in relation to his clinical performance in rendering MBS services, but also for the purpose of protecting the lawfulness and financial integrity of the scheme. 71. Even if Dr Selia thought that he was permitted to pre-bill for his services under the scheme, the committee is of the view that his conduct in billing the Commonwealth for benefits without first familiarising himself properly with the requirements for the payment of Medicare benefits was unacceptable and would be unacceptable to the general body of dentists. 3.8 The draft and final determinations by the Determining Authority 56 Written submissions were made to the Determining Authority on Dr Selia's behalf dated 6 February 2015 pursuant to an invitation by the Authority in accordance with s 106SA of the Act about the directions that it should make as a result of the PSR Committee's Final Report. 57 On 19 March 2015, the Determining Authority provided Dr Selia with a copy of its draft determination and invited him to make written submissions suggesting changes to the directions contained in the draft determination in accordance with s 106T of the Act. Submissions on Dr Selia's behalf were made by his legal representatives in response dated 17 April 2015. 58 In its unanimous final determination dated 19 May 2015, the Determining Authority first adopted the finding by the PSR Committee that Dr Selia engaged in inappropriate practice (see at [35] and [42] above). 59 Secondly, the Determining Authority directed as follows: (a) the Director of Professional Services Review (Director), or the Director's nominee, reprimand Dr Selia (paragraph 106U(1)(a) of the Act) (b) the Director, or the Director's nominee, counsel Dr Selia (paragraph 106U(1)(b) Dr Selia of the Act) (c) Dr Selia pay a total of $1,129,167.20 to the Commonwealth being 60% of the Medicare benefits that were paid for the proportion of the MBS item 85011, 85615, 85661 and 85672 services in connection with which Dr Selia was found to have engaged in inappropriate practice (paragraph 106U(1)(cb) of the Act) 60 While the Determining Authority is not required to provide reasons at the time that it makes its determination (Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433 (Sevdalis) at [63]), the Determining Authority did so. (I note that, while the decision in Sevdalis was delivered after judgment was reserved, the parties drew the decision to my attention but with the applicant contending that the decision was not relevant.) 61 In its reasons, the Determining Authority stated first that it had relied upon the PSR Committee's Final report in making its decision. The Determining Authority also stated that it had regard to the Referral and the submissions made on the behalf of Dr Selia dated 6 February 2015 and 17 April 2015 which were summarised in detail in the Determining Authority's reasons. 62 The Determining Authority then summarised the findings by the PSR Committee and the reasons for those findings in order to provide context for its final determination. 63 Under the heading "Preliminary", the Determining Authority stated that it had regard to the objectives of the PSR Scheme when exercising its discretion in deciding which directions to include in the final determination, the PSR Committee's findings and the submissions made on behalf of Dr Selia, including the reported changes in his practice since the Final Report was provided to him (at [18]-[20]). 64 Next, the Determining Authority made a number of findings as to the weight to be given to various factors in deciding upon what, if any, directions should be made as a result of the findings of the PSR Committee, having regard to Dr Selia's submissions. 65 First, the Determining Authority considered that: 21. … the inappropriate practice disclosed in the Report is of a serious nature. The finding of inappropriate practice has been made by reference to billing practices, inadequate clinical input, a failure to meet MBS requirements for each service, and clinical records lacking in essential clinical information. All of these are matters of significant concern to the Determining Authority. 66 Secondly, with respect to pre-billing, the Determining Authority noted the PSR Committee's finding that the general body of dentists would consider that the pre-billing of services not yet rendered constitutes inappropriate practice in connection with rendering or initiating services and considered this to be "a matter of significant professional concern" (at [22]). It noted that the PSR Committee considered pre-billing by itself to constitute inappropriate practice, observing that the practice is inconsistent with the Act and the commentary to the Medical Benefits Schedule Dental Services that applied during the review period (at [23]). The Determining Authority gave little weight to Dr Selia's submission that he was entitled to rely on an apparent implicit endorsement by Dr Dalton of his pre-billing practice, noting that in its Report, the PSR Committee had said that it did not know what particular records were shown to Dr Dalton and whether or not he appreciated that patients were pre-billed (at [25]-[26]). 67 Thirdly, the Determining Authority gave little weight to Dr Selia's submissions on the PSR Committee's finding that his records were deficient in clinical information as it was the content of those records, as opposed to their volume, which was in issue. The Determining Authority further said in this regard that: 30. The importance of clinical records in the management of patient care should not be understated. The inadequacies of Dr Selia's clinical records adversely affect his ability (and the ability of other practitioners) to provide effective and adequate care to his patients. The Committee's finding is indicative of the importance and value that the profession places on clinical records. 68 Fourthly, with respect to the billing of services by employees of Dr Selia on his behalf, the Determining Authority : 31. … noted the Committee's finding that the Act did not permit other dentists, including employees of Dr Selia, to render MBS item services on behalf of Dr Selia and that this arrangement was not an "innocent error". In the submissions dated 17 April 2015 made by Unsworth Legal it is stated that "Dr Selia did not say the arrangement spoken of was an innocent error. It was an administrative practice employed." 32. This submission does not alleviate the Determining Authority's concerns. If Dr Selia had an administrative practice which was inconsistent with the Act then, regardless of the basis for that practice, it is still inconsistent with the legislation which authorises the MBS system and payments of MBS benefits. 69 In the fifth place, the Determining Authority also gave some weight to the finding in respect of MBS item 85661 services that only a dental specialist, and not a general practitioner dentist, could render the service of inserting a mini-implant (at [33]). It further noted that the PSR Committee found that Dr Selia had pre-billed for all of the MBS item 85661 services but had not in fact provided 9 of the 30 services examined by the PSR Committee (at [34]). 70 The Determining Authority also found that "[t]he very high proportion of inappropriate practice was noted… and was a factor which was given some weight in the decision-making process." (at [37]). 71 Finally, the Determining Authority found (at [38]) that a practitioner bears responsibility for, relevantly, familiarising herself or himself with the requirements for billing under the Medicare scheme. 72 With respect to the specific directions to be made, and in particular the repayment of MBS benefits, the Determining Authority took into account mitigating factors on which Dr Selia relied, as I later explain. Nonetheless, it found that a direction on repayment should be made for part of the Medicare benefit that was paid for the proportion of those services in connection with which Dr Selia was found to have engaged in inappropriate practice. Having regard to a number of considerations, it decided on balance to exercise its discretion to make a direction for repayment of 60% of the Medicare benefits paid for the proportion of the MBS item services in connection with which Dr Selia was found to have engaged in inappropriate practice. I consider the Determining Authority's reasons in this regard in detail later in the context of considering the applicant's submission that the repayment direction is legally unreasonable. 4. CONSIDERATION: VALIDITY OF THE PSR COMMITTEE'S FINAL AND DRAFT REPORTS 4.1 The concept of "inappropriate practice" in s 82(1) of the Act 73 Section 82 defines "inappropriate practice" in the following terms: (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 (b) if the practitioner rendered or initiated the services as a specialist (other than a consultant physician) in a particular specialty—the conduct would be unacceptable to the general body of specialists in that specialty; or (c) if the practitioner rendered or initiated the services as a consultant physician in a particular specialty—the conduct would be unacceptable to the general body of consultant physicians in that specialty; or (d) if the practitioner rendered or initiated the services as neither a general practitioner nor a specialist but as a member of a particular profession—the conduct would be unacceptable to the general body of the members of that profession. (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 services was inappropriate practice, have regard to (as well as to other relevant matters) whether or not the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services. (emphasis added.) 74 It is not in issue that the PSR Committee's finding of inappropriate practice in its Final Report and provisionally in its Draft Report was made under s 82(1)(d). 75 "Service" is defined in s 81(1) to mean (relevantly) a service for which, at the time it was rendered or initiated, Medicare benefit was payable. In turn, s 81(2) provides that: For the purposes of this Part, a person provides services if the services are rendered or initiated by: (a) the person; or (b) a practitioner employed by the person; or (c) a practitioner employed by a body corporate of which the person is an officer. 76 The first three grounds relied upon by the applicant (the pre-billing ground, the employed dentist ground and the review period ground) raise questions concerning the scope of "inappropriate practice" in s 82(1) of the Act. It is therefore convenient to make a number of preliminary points concerning the construction of that provision before turning specifically to consider those grounds. 77 The criterion of "inappropriate practice" was introduced by the Health Legislation (Professional Services Review) Amendment Act 1994 (Cth). It replaced the concept of "excessive services", being services in respect of which a Medicare benefit was payable which were not reasonably necessary, with a concept that "goes further" so as to cover a practitioner engaging in conduct in connection with the rendering or initiating of services that is unacceptable to his or her professional colleagues generally: see the Second Reading Speech to the Health Legislation (Professional Services Review) Amendment Bill 1993, House of Representatives, Debates (1993) Vol HR189, p1550-1552. (1993 Second Reading Speech); Wong at 634 [211] (Hayne, Crennan and Kiefel JJ); Pradham v Holmes [2001] FCA 1560; (2001) 125 FCR 280 at 282 [8] (Finn J). The pre-eminent concern which prompted the enactment of the new criterion was the inadequacy of pre-existing committees of inquiry to deal with gross overserving: 1993 Second Reading Speech at p1550. 78 In Wong, Hayne, Crennan and Kiefel JJ identified three pertinent features of s 82 of the Act. (1) First, "inappropriate practice" is confined to a practitioner's "conduct in connection with rendering or initiating services" for which (relevantly) a Medicare benefit is payable under the Act (at 634-635 [213]; see also at 635-636 [215]). (2) Secondly, s 82 imports an objective standard. As Hayne, Crennan and Kiefel JJ observed in Wong at 636 [218], s 82: … requires that the conduct be "such that a Committee could reasonably conclude that … the conduct would be unacceptable to the general body" of relevant practitioners (emphasis added). The addition of the word "reasonably" reinforces the conclusion that might otherwise have been drawn in any event that the standard against which conduct is to be measured is an objectively determined standard. Moreover, the use of the word "reasonably" may take on particular significance in the application of the AD(JR) Act. In particular, it may bear upon whether a decision to which the AD(JR) Act applies was "authorized by the enactment in pursuance of which it was purported to be made", whether the decision "involved an error of law", as well as whether "the decision was otherwise contrary to law" or involved an "improper exercise of ... power". (footnotes omitted) (3) Thirdly, their Honours explained that it must be borne in mind that the Act recognises that some conduct may not fall within "inappropriate practice" but nonetheless fall within some other definition of unprofessional practice. As Hayne, Crennan and Kiefel JJ further explained at 636 [216]: Provision is therefore made by s 106XA for referring to an appropriate regulatory body any significant threat to life or health that comes to light "in the course of the performance of functions or the exercise of powers" under Pt VAA of the Act. And s 106XB provides for reference to an appropriate regulatory body of any non-compliance by a practitioner with professional standards. These provisions show that it is neither necessary nor appropriate to attempt to stretch the concept of "inappropriate practice", or its definition as "conduct in connection with rendering or initiating services", to embrace all forms of conduct by a practitioner that would merit professional condemnation. Rather, the focus of Pt VAA must remain fixed upon conduct in connection with rendering or initiating services for which benefits are payable. 4.2 The pre-billing ground 79 The applicant contends that billing cannot fall within the meaning of "inappropriate practice" for the purposes of s 82 of the Act and cannot therefore lawfully be a referred service under s 93 of the Act. Accordingly in the applicant's submission, the PSR Committee had no jurisdiction to make findings about Dr Selia's pre-billing practices. Specifically, the applicant submits that: (1) Performing administrative tasks such as billing is not the provision of services as defined and therefore cannot be the subject of a referral under s 93(1). (2) Nor is billing conduct "in connection with rendering or initiating services" so as to fall within the definition of "inappropriate practice" in s 82(1) of the Act. 80 These submissions rely primarily upon the fact that the power to make a referral to a Committee under s 93(1) is to "make a referral to the Committee to investigate whether the person under review engaged in inappropriate practice in providing the services specified in the referral" (emphasis added). Similarly "findings, in relation to a draft report or final report of a Committee" are defined in s 81 to mean "the Committee's findings as to whether the person under review engaged in inappropriate practice in the provision of some or all of the services specified in the referral made to the Committee." (emphasis added). Accordingly, the PSR Committee's power to make findings cannot exceed the terms of the referral (s 106H(1)). The submissions also rely upon the definition of the term "service" in s 81(a) for the purposes of Part VAA to mean (relevantly) "a service for which, at the time it was rendered or initiated, medicare benefit was payable". The services which may be referred with their corresponding Medicare item numbers are set out in Sch 1 to the 2007 Determination and are all concerned with clinical matters (e.g. oral surgery). 81 These submissions, with respect, misconstrue the relevant provisions and must be rejected. First, it was not in issue that the services specified in the Referral (quoted above at [27]) met the statutory definition of "services". Equally, it was not in issue that billing of itself is not a "service" as defined. However, the phrase in s 93(1) "in providing the services" is apt to require that there be a connection between the conduct said to constitute "inappropriate practice", on the one hand, and the services specified in the Referral, on the other hand. So understood, the phrase does not limit the concept of what may constitute "inappropriate practice" as defined in s 82 where such a connection may exist. The pivotal issue is, therefore, whether billing falls within the definition of "inappropriate practice". 82 Secondly, "inappropriate practice" as defined by the Act is not limited to the provision of services, but expressly includes conduct "in connection with rendering or initiating" of services. As a matter of ordinary language, billing for services may constitute "conduct" in connection with the rendering or initiating of the services to which the bill relates. The terms "in connection with" are, as the applicant accepted, words of broad import: see also Wong at 635 [215] (quoted below at [90]). For the reasons earlier mentioned, there is no warrant in the text for effectively reading those words out so as to limit inappropriate practice to conduct "in the provision of the services"; nor to substitute for the words "in connection with", the words "in the course of" or "forming part of." If the Parliament had intended to so limit the concept of inappropriate practice, there is no reason why the Parliament would not have said so in the definition of "inappropriate practice" itself. 83 Thirdly, this construction is confirmed by the expressed object of Part VAA, being relevantly to protect the integrity of the Medicare benefits programme (s 79A). Given that object, Part VAA should not be narrowly construed: Health Insurance Commission v Grey [2002] FCAFC 130; (2002) 120 FCR 470 (Grey) at 504 [173] (the Court). It is, with respect, difficult to conceive of a matter more closely connected to protecting the integrity of a system for the payment of benefits for the provision of medical services from public monies than the billing for those services by the practitioner under that scheme in accordance with its requirements. Those requirements, in turn, are ultimately directed to ensuring transparency and accountability for the expenditure of those public monies. Consistently with this, French CJ and Gummow J observed in Wong at 593 [63] that: The keeping of adequate and contemporaneous records of the rendering or the initiation of services provided by the practitioner is, as the place of s 82(3) within the definition of "inappropriate practice" indicates, apt to assist the Committees in reaching their reasonable conclusions as to unacceptable conduct for s 82(1). 84 Justice Kirby also held at 620 [159] that: … I agree with what Hayne, Crennan and Kiefel JJ have written about the analogy between the statutory criteria expressed in the Act and the long-established law on professional standards stated in such decisions as Allinson v General Council of Medical Education and Registration [[1894] 1 QB 750] with the elaboration now afforded by Lord Hoffmann in McCandless v General Medical Council. The concept of "inappropriate practice" is not exactly the same as "unprofessional conduct" existing in the 1890s when Allinson was decided. The statutory criterion today, in a modern regulatory state with a universal, national health scheme, contemplates detailed record-keeping to comply with basic constitutional and statutory principles. Poor book-keeping might not have been "unprofessional conduct" in the century before last. However, in the contemporary Australian context, where what is involved is overcharging, overservicing or inadequate clinical care in the nominated time, it could well be so. 85 Thus, the PSR Committee as an expert professional body will form its assessments "in a therapeutic context" as Kirby J explained in Wong at 620 [157]. Nonetheless, as Kirby J also accepted, the Act is legitimately concerned with matters concerning the legality and financial integrity of payments made under the Medicare system (at 618 [152]- 619 [153]) and the context of inappropriate practice may extend to such matters as the keeping of inadequate records. Similarly, in Grey at 504 [173(3)], the Court identified among the areas of consensus emerging from the cases in the interpretation of the Act, that "[m]aking a claim under an incorrect item is capable of constituting conduct which amounts to 'inappropriate practice'." 86 Equally in Sevdalis, Mortimer J observed at [73] that: Since the introduction of the concept of "inappropriate practice" as the touchstone for the review [under Part VAA], as well as the investigation and determination functions in Pt VAA, there is no doubt that practitioners' conduct is exposed to review on broader grounds than their entitlement to payment in accordance with the Act and regulations. 87 The applicant seeks to read down the ordinary meaning of these provisions so as to confine the concept of "inappropriate practice" to the provision of clinical matters and to exclude so-called "administrative" matters on the basis that this "is consistent with a legislative scheme which is concerned with reviewing professional clinical practice and which has its roots in common law principles of professional responsibility, as recognised in Wong." However, the historical context against which the scheme was enacted cannot prevail against the words of the Act which do not confine inappropriate practice to professional clinical practice; nor can it prevail over the object of Part VAA to protect the integrity of the Medicare benefit scheme, in line with s 15AA of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act) requiring that preference be given to the construction which best promotes the legislative objects (e.g. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] (McHugh, Gummow, Kirby and Hayne JJ)). 88 Nor do I accept the applicant's submission that his construction is supported by the decision in Wong. To place that decision in context, in that case the High Court rejected the contention that Part VAA of the Act was invalid on the ground that it amounted to or authorised "civil conscription" within the meaning of s 51(xxiiiA) of the Constitution. That provision empowers the Commonwealth to make laws with respect to the provision (relevantly) of medical and dental services "but not so as to authorize any form of civil conscription". In so holding, the High Court by majority held that there was no compulsion under the scheme to perform a professional service (so as to amount to civil conscription), but only a practical compulsion to adhere to professional standards in respect of any services provided, for which Medicare benefits are payable either to the patient or to the practitioner: see Wong at 595 [68] (French CJ and Gummow J), 633 [209] and 638 [224] (Hayne, Crennan and Kiefel JJ). 89 In this regard, it is true that Hayne, Crennan and Kiefel JJ held that the requirement in s 82 that "the conduct would be unacceptable to the general body" of relevant practitioners is an objective standard often identified as the opinion of members of the profession of good repute and competency, and that it can, therefore, "be seen as maintaining the thread common to many earlier forms of professional discipline and regulation, by which the standards of conduct are set by reference to prevailing professional opinion." (Wong at 638 [223]; see also at 593-594 [64]-[65] (French CJ and Gummow J)). However, the existence of that common thread does not mean that the Parliament must be understood as having been concerned only with inappropriate practice with respect to clinical matters. To the contrary, the common thread identified by their Honours was that practitioners are required to abide by a particular standard of professional conduct which "is framed by reference to professional opinion." (Wong at 638 [224]). It is on this basis that Hayne, Crennan and Kiefel JJ held that the standard of conduct "…is, therefore, not different in kind from the standard of professional conduct that, since Allinson's Case, has been expected of medical practitioners in the conduct of their profession." (ibid) (emphasis added). 90 Furthermore, while (as the applicant points out) Hayne, Crennan and Kiefel JJ considered in Wong at 635 [215] that there was room for debate about whether "all questions about clinical competence and performance, or all organisational issues affecting [patient] safety" would be "conduct in connection with rendering or initiating services", their Honours' concern was only with whether the requisite connection in s 82(1) would be made out in all such cases. As their Honours continued at 635 [215] to explain: No doubt the expression 'in connection with' is not to be given a narrow or confined construction. But the provision requires that a connection be demonstrated between identified conduct and rendering or initiating services for which benefits are payable. 91 Contrary to the applicant's submission, nothing in those passages or otherwise in the majority judgments can be said to have "exhibited caution in the construction of the words 'in connection with'" (emphasis added); nor that their Honours suggested that only clinical matters could constitute inappropriate practice. 92 It follows that the pre-billing for services for which a Medicare benefit is payable can constitute inappropriate practice in providing services specified in a referral under s 93(1) of the Act and otherwise for the purposes of the investigation and making of findings by a PSR Committee under Part VAA of the Act. The applicant's submissions to the contrary must be rejected. 4.3 The employed dentists grounds 4.3.1 The issues 93 No issue was taken with any of the PSR Committee's views as to the effect of the Act and regulations with respect to the provision of services by dentists employed by Dr Selia and in particular with its opinion at [35] of the Final Report that "the legislation did not permit another dentist, including an employee of Dr Selia, to render services under the Health Insurance Act 1973 on behalf of Dr Selia". 94 Nonetheless, in the applicant's contention, the PSR Committee was not empowered to make the employed dentist findings given that: (1) the employed dentist findings are not findings about Dr Selia's clinical practice; nor are they "findings" as defined in s 81(1) because they are not findings that he engaged in inappropriate practice "in the provision of services"; (2) the PSR Committee's finding that an employer's conduct in billing for services rendered by an employed dentist was not capable of constituting "inappropriate practice" because it could not reasonably be concluded that it was unacceptable to the general body of the members of the profession. In effect, the applicant's submission was that the finding was unreasonable and therefore beyond the scope of the Committee's power to make findings. 4.3.2 The submission that the employed dentist findings are not the provision of services and are not "inappropriate practice" 95 The first ground must fail for the same reason that the equivalent submission with respect to the PSR Committee's finding that Dr Selia's pre-billing practice constituted inappropriate practice must fail: see above at [81]-[92]. The concept of "inappropriate practice" under the Act is not limited to clinical matters; nor is that concept limited to conduct in the provision of services. 4.3.3 Legal unreasonableness: relevant principles 96 Legal reasonableness or an absence of legal unreasonableness is an essential element of lawfulness in decision-making, it being implied that Parliament intended that a discretionary power, statutorily conferred, must be exercised reasonably: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at 350 [26], 351 [29] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ) and 320 [88] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [58] (the Court). 97 In determining whether an administrative decision is vitiated by legal unreasonableness it is essential first to bear in mind that the Court's jurisdiction is strictly supervisory: Li at 363 [66]. As the Full Court of the Federal Court emphasised in Eden at 171 [59]: It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ). 98 Secondly, two contexts in which the concept of legal unreasonableness may be employed have been identified in the authorities. As the Full Court explained in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh) at 445 [44] with reference to the High Court's decision in Li: Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. (see also Eden at 171 [60]) 99 Thirdly, in either context, an evaluation of whether an administrative decision is legally unreasonable and therefore outside the range of possible lawful possible outcomes must be made having regard to the terms, scope and policy of the statutory source of the power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at 5 [11] (Allsop CJ, with whose reasons Wigney J agreed at [90])). As the Full Court explained in Eden at 171-172 [63]: … in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67]-[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 445[42]. 100 With respect to the values of the common law to which Allsop CJ referred in Stretton, his Honour explained at 5 [9] that: The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source. 101 Fourthly, in assessing whether a particular outcome is unreasonable, the Court held in Eden at 171 [62] that "…it is necessary to bear in mind that within the boundaries of power there is an area of "decisional freedom" within which a decision-maker has a genuinely free discretion… Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness… Such a decision falls within the range of possible lawful outcomes of the exercise of the power…" (citations omitted). 102 In the fifth place, the Court in Eden held at 172 [64] that, where reasons for the decision are available: …the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at [45]-[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at [76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ). 103 Sixthly, the Court in Eden emphasised at 172 [65] that: … perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "checklist" exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes. 104 Finally, as the Commonwealth submits, findings of unreasonableness ought not to be "lightly" made (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 625 [40]-[41]). This is particularly so where, as here, the Parliament has constituted the decision-making body as an expert body required to make decisions including having regard to its own expertise on matters of judgment such as professional standards (Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254 at 272 [50]). In this regard, it will be recalled that the Act provides that a PSR Committee must be constituted by members belonging to the professions or specialities relevant to the investigation: see at [26] above. Thus, as the Commonwealth submitted: …the ambit of legitimate discretion given by Parliament to a body such as the PSR [Committee] must be determined having regard to the legislative scheme, which, as regards the Act, includes the protection of the medicare benefits scheme and protection of the Commonwealth from having to meet the costs of services provided as a result of inappropriate practice. The PSR [Committee] is to be afforded a wide discretion in determining what conduct could be found to meet the test in s 82(1) having regard to that legislative purpose. 4.3.4 Were the employed dentist findings legally unreasonable? 105 In support of the submission that Dr Selia's conduct in billing services rendered by employed dentists against his Medicare provider number could reasonably constitute inappropriate practice, Dr Selia submitted that: A dentist who engaged in such conduct could not reasonably be considered to be 'in such breach of written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence' (Wong … French CJ and Gummow J at 593 [64]). 106 While, that submission notwithstanding, the applicant accepted that the concept of inappropriate practice "is not exactly the same as 'unprofessional conduct' existing in the 1890s when Allinson was decided", he submitted that: The words "conduct unacceptable" are nevertheless to be read in light of the common law tradition of professional discipline. The words "strong reprobation" employed by French CJ and Gummow J in Wong, are not so much a gloss on s 82 … as a reflection of the circumstance that a high level of reprobation is necessary before conduct can properly be described as being "unacceptable" to a profession, taking into account the tradition of which s 82 forms a part. 107 It is this construction which would seem to underlie the argument that, absent a fraudulent intent, the applicant's practice with respect to his employed dentists could not reasonably have been found to be unacceptable for the purposes of s 82 of the Act. 108 It cannot be doubted, as the applicant submits, that a finding of inappropriate practice under the Act is a finding of a serious kind with potentially devastating consequences for the practitioner concerned. As such, it is not to be made lightly. Nonetheless, it is the words in s 82 in their statutory context which fall to be applied. Consistently with this, French CJ and Gummow J in Wong (on whose reasons the applicant relies) explain at 593 [64] that the statutory criterion of conduct unacceptable to the general body of general practitioners "is an adaptation for the operation of the Act of principles of professional responsibility developed in the second half of the nineteenth century" (emphasis added). The test which the applicant quotes in the passage set out at [105] above is a passage quoted by French CJ and Gummow J as encapsulating the essential test "in such cases" (Wong at 594 [64]). Thus while French CJ and Gummow J explain at 594 [65] that the requirement is that the professional activities of medical practitioners "conform to the norms derived from Allinson" (emphasis added) and that those norms are "calculated to ensure that the activities be professional rather than unprofessional in character", those norms are to be construed in the context of "[a] legislative scheme for the provision of medical services supported by appropriation of the Consolidated Revenue Fund established under s 81 of the Constitution". That view in any event aligns with the construction adopted by the four other members of the majority in Wong and is therefore binding upon this Court: see the discussion above especially at [84] and [89]-[90] above. 109 Given that context, it follows in my view that the finding by the PSR Committee that the practice in question was not acceptable to the general body of practitioners was reasonably open to it and the applicant's submissions, with respect, fall well short of establishing that the high threshold of legal unreasonableness has been crossed in this case. First, as mentioned, there is no challenge to the PSR Committee's findings that the legislation did not permit dentists employed by Dr Selia to render services on his behalf. Secondly, for reasons I have earlier given, an inappropriate practice may include matters concerning the legality and financial integrity of payments under the Medicare system in line with the object in s 79A where they are connected with the provision of services. Thirdly, the PSR Committee drawing upon its expertise gave clear and cogent reasons in its Final Report for finding that on the facts of this case, Dr Selia's practice with respect to his use of employed dentists in the manner described would not be acceptable to the general body of dentists, namely: 60. It was submitted that Dr Selia's use of employed dentists to provide services under the Scheme was an 'innocent error', which would not be unacceptable to the general body of dentists, especially as it was suggested that Dr Selia could gain no advantage from this arrangement because the other dentists could have obtained their own provider numbers, or used them if they had them, and, by agreement, directed payment of the benefit to Dr Selia in return for the salary paid to them. 61. The Committee rejects the notion of 'innocent error' and doubts the proposition that Dr Selia did not gain an advantage from the use of employed dentists. 62. The Committee is of the view that the general body of dentists would have expected a dentist taking advantage of the Scheme, in Dr Selia's circumstances, to have familiarised himself properly with the requirements for the payment of Medicare benefits, especially as he conducted an enterprise by which millions of dollars in Commonwealth benefits were paid to him. 110 As to the last point, counsel for the applicant said on a number of occasions that Dr Selia had one of the busiest practices in Australia and without objection mentioned that he had 16 employed dentists. 111 Ultimately, therefore, the applicant's submissions, made without any expert or other evidence, are essentially assertive as the Commonwealth submits, and reduce to an impermissible attempt to ask the Court to revisit the merits of the PSR Committee's finding that the conduct in question would not be acceptable to the general body of dentists. 4.4 The review period ground 112 It will be recalled that inappropriate practice is confined (relevantly) to "conduct in connection with rendering or initiating services" (s 82(1)). It will also be recalled that the "conduct" which may investigated and the subject of findings by the PSR Committee is confined to conduct in connection with the rendering or initiating of the "referred services", being those specified in the Director's referral under s 93 of the Act. 113 Given these matters, the applicant contends (in the alternative to its argument that pre-billing falls outside s 82) that it was not open to the PSR Committee to find that his practice of pre-billing was in connection with the initiating or rendering of "the referred services" in the case of those services rendered after the review period or not rendered at all. Not only were those services not "render[ed]" within the review period, but the applicant also contends that they were not "initiat[ed]" within the review period either. Rather, in the applicant's submission, the services were "initiat[ed]" for the purposes of s 82 by the referral by a general practitioner of the patients in question to Dr Selia as is required by the 2007 Determination (see above at [20]), and the services could not therefore have been initiated again when the patient attended the initial consultation. The logical consequence of this construction of the word "initiating" in s 82(1) is, as the applicant accepts in his submissions, that "it is only a dentist's conduct in connection with rendering services which may constitute 'unacceptable conduct' within s 82(1)." 114 That argument must be rejected. 115 The starting point, as the applicant appears implicitly to accept, is that the umbrella paragraph to s 82(1) is concerned with the practitioner's conduct in connection with the rendering or initiating by the practitioner of services. In other words, the phrase "in connection with rendering or initiating services" forms part of the definition of the practitioner's conduct which can constitute inappropriate practice. This construction is confirmed by subs (1)(a) to (d) inclusive which set the standard for inappropriate practice. Thus, for example, s 82(1)(d) provides that "if the practitioner rendered or initiated the services as neither a general practitioner nor a specialist but as a member of a particular profession – the conduct would be unacceptable to the general body of the members of that profession." (emphasis added). In this regard, s 81(2) provides that: For the purposes of this Part, a person provides services if the services are rendered or initiated by: (a) the person; or (b) a practitioner employed by the person; or (c) a practitioner employed by a body corporate of which the person is an officer 116 However, the applicant's construction wrongly assumes that a referral by a general practitioner to a dentist is the initiating conduct for any service which is subsequently given by the dentist. It may be accepted that a referral by a general practitioner "initiates" or "begins" the course of conduct undertaken by the dentist (or specialist) in treating the patient in the generalised sense that a referral was the necessary (or, in the applicant's words, "formal") precursor to bringing the dental service within the Medicare scheme under the 2007 Determination. However, to suggest that the word "initiating" in s 82 bears this meaning ignores the fact that the reason for setting professional standards such as those in Part VAA is to create standards with which practitioners participating in the Medicare system must comply and for which they will be held responsible if they fail to comply. In that context, the concept of "initiating" a service is plainly concerned with conduct which has an immediate causal connection with the rendering of the services – a construction which falls well within the ordinary English meaning of the word, as the Commonwealth submits. 117 For example, where a dentist (Dr A) decides that an X-ray should be taken or a Crown inserted, Dr A takes responsibility for those services being undertaken even though the patient was referred to Dr A by a general practitioner and, in the case of the X-ray, Dr A did not herself or himself take the X-ray. It is, in other words, the decision by the dentist to insert the Crown or to X-ray the patient that initiates the service in an immediate and proximate way, as opposed to the general practitioner's decision to refer the patient to the dentist. 118 This construction is consistent with the definition of "initiate" in s 3(1) of the Act (on which the applicant relies) which reads: initiate, in relation to a pathology service or a diagnostic imaging service, means make the decision by reason of which the service is rendered. 119 This construction also ensures that conduct with an immediate causal connection is captured by s 82, thereby best promoting the purpose of Part VAA by providing a means for addressing issues such as over-servicing which lead to the enactment of Part VAA. 120 Applying this construction, it is apparent that the services rendered outside the review period (or not rendered at all) were initiated at the initial consultations of the patients at which the treatment plan for the patient was established and the services were scheduled. Specifically, the PSR Committee found with respect to all of the services examined by it aside from the initial consultations (MBS item 85011) that: (1) Dr Selia had engaged in inappropriate practice by pre-billing either on the day or within a few days of the initial consultations; (2) the initial consultation and pre-billing occurred within the review period; (3) during the initial consultations, the patients' treatment plans were established; and (4) the treatment plans included the scheduling of the MBS item 85615, 85661 and 85672 services. 121 There is no challenge to those factual findings. To the contrary, they are consistent with a preliminary submission made by Dr Selia and given to the PSR Committee at the commencement of the hearing on 29 August 2013 as to his invariable practice. 122 It follows therefore from a correct construction of the word "initiates" that the services which were rendered after the review period or were not rendered at all were nonetheless initiated within the review period and therefore that the PSR Committee had jurisdiction to make the findings with respect to pre-billing of those services, contrary to the applicant's submissions. 4.5 Additional submission raised by the applicant in reply 123 In reply the applicant raised a further submission, contending in effect that it was not open to the Committee to find that services which were not rendered could constitute "inappropriate practice". The basis for the argument is set out as follows: 18. At the time each of the services considered by the PSRC was initiated (that is, the time of the third party referral), no medicare benefit was payable because no medical expenses had been incurred in respect of that service (see Act, s 10). No medicare benefit became payable until the service was "rendered" by Dr Selia. This is the basis for the bulk of the findings made against Dr Selia: that he claimed a medicare benefit before it was payable because it had not been rendered. Any service which was not "rendered" by Dr Selia during the review period, then, is not a "service" within the definition and is not within the PSRC's jurisdiction. 19 The definition of "inappropriate practice" also assumes a service has been rendered or initiated before practice may be "inappropriate". Section 82(1) provides, relevantly, that "[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: … (d) if the practitioner rendered or initiated the services as neither a general practitioner nor a specialist but as a member of a particular profession—the conduct would be unacceptable to the general body of the members of that profession." The words "rendered or initiated" assume that the practitioner has, in fact, provided the services. Whilst these words may be open to a different reading in light of the 2012 amendment to the definition of "services," before that amendment they reinforced the conclusion that services had to be provided before a finding of inappropriate conduct could be made 124 The submission must be rejected. First, for the reasons earlier given, the services were "initiat[ed]" for the purposes of the definition of inappropriate practice at the initial consultation when the treatment plan was prepared and the services scheduled. 125 Secondly, the submission overlooks the fact that in billing for the scheduled services, Dr Selia represented that they had in fact been rendered when they had not. 126 Thirdly, taken to its logical conclusion, the submission would mean that any conduct undertaken prior to the rendering of a service for which a Medicare benefit was payable would fall outside the concept of "inappropriate practice". In this case, it would mean that pre-billing for services never rendered could not constitute inappropriate practice and therefore could not be the subject of investigation and review by the PSR Committee and directions by the Determining Authority. It would also mean, for example, that services not reasonably required for the treatment of the patient, and for which no medicare benefit was therefore payable by virtue of s 19(5), would fall outside Part VAA. That construction undermines the object in s 79A and would permit conduct of a most egregious kind to fall beyond the purview of Part VAA. However, that is not the only construction available. Sensibly read, it is sufficient if the practitioner's conduct is in connection with "initiating" services (properly construed) for which a Medicare benefit would be payable when (or if) the services are rendered. This construction gives effective work for the word "initiating" in s 82 to do and reads the definition of "service" in s 81(1) in the context of s 82(1), being the lead provision. In this regard, the interaction between these provisions plainly cannot be determined by the insertion in 2012 of subs (ab) to the definition of "service" in s 81(1) providing that "a service that has been initiated (whether or not it has been or will be rendered) if, at the time it was initiated, medicare benefit would have been payable in respect of the service had it been rendered at that time." It is not permissible to construe a provision by reference to a later amendment. In any event, in my view by the amendment Parliament has simply made express that which was previously implicit. 4.6 Conclusion: the PSR Committee's Final and Draft Reports 127 It follows for the reasons set out above that the challenge to the PSR Committee's Final and Draft Reports must be dismissed, as must the challenge to the repayment direction to the extent to which that challenge relied upon the setting aside of these reports. 5. CONSIDERATION: THE VALIDITY OF THE REPAYMENT DIRECTION BY THE DETERMINING AUTHORITY 5.1 The relevant considerations ground 5.1.1 Dr Selia's submissions 128 Dr Selia challenges the repayment direction first on the ground that the Determining Authority was required, but failed, to have regard to the PSR Committee's Final Report and its findings when making the draft and final determinations. 129 Specifically, Dr Selia submitted that: 47. It is apparent from the subject matter, scope and purpose of the Act, and particularly Part VAA of the Act, that the Committee's final report is a mandatory consideration for the Determining Authority when exercising power under ss 106T, 106TA and 106U of the Act. A Committee must give its final report to the Determining Authority unless it does not contain a finding by a majority or by all of its members that the person under review engaged in inappropriate practice (Act, s 106L(3) and (5)). The Determining Authority must "give the person under review a written invitation to make written submissions to the Authority, having regard to the committee's final report" (Act, s 106SA(1)). Subdivision C of Division 5 of Part VAA applies if a final report of a Committee is given to the Determining Authority under s 106L(3) in relation to a person under review (Act, s 106RA). The Determining Authority's power to impose directions on a practitioner is clearly required to be exercised having regard to the Committee's final report. 48. In its final report, the Committee expressly stated that it did not find that Dr Selia had provided an inadequate level of clinical input, kept records deficient in essential clinical information or provided services that were not clinically necessary for 23 of 28 services in respect of MBS item 85615 (Davey Affidavit, p 308), for 30 of 31 services in respect of MBS item 85661 (Davey Affidavit, p 319), and for all 30 services in respect of MBS item 85672 (Davey Affidavit, p 325). These were, in substance, findings that Dr Selia provided an adequate level of clinical input, kept records that were not deficient in essential clinical information and provided services that were clinically necessary. Only six of the 89 services mentioned above were found to be clinically deficient. 49. Notwithstanding that Dr Selia made submissions to the Determining Authority to this effect (Davey Affidavit, pp 398-399), the Determining Authority did not take into account the Committee's express statements referred to above in its draft or final determinations (see Davey Affidavit at p 390 [24] and p 478 [21]). 50. As a result of the Determining Authority's failure to take this mandatory consideration into account, its draft and final determinations are void and of no effect. 5.1.2 Relevant considerations 130 It is necessary first to consider the applicant's submission that the Determining Authority must consider "the Final Report" and his submissions to the Determining Authority as "a mandatory consideration". 131 A consideration of the Review Scheme in Part VAA makes it clear that the Determining Authority is bound by a PSR Committee's finding of inappropriate practice made pursuant to ss 106H(1) in its Final Report under s 106L with respect to the referred services. The statutory task of the Determining Authority is not to revisit those findings, but to make a determination which contains one or more of the directions in s 106U consequential upon the finding of inappropriate practice by the PSR Committee. Before it can make a final determination, the Determining Authority is also bound under s 106TA to take "into account any submissions made by the person" under s 106T(3) suggesting changes to any directions contained in the draft determination within a set timeframe. As such, it is plain that those submissions constitute a relevant consideration in a jurisdictional sense: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42 (Mason J), 56 (Brennan J); Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) at 338 [37]- 339 [39] (Gaudron J), 351 [82] (McHugh, Gummow and Hayne JJ, Gleeson CJ agreeing). 132 In short, as Mortimer J held in Sevdalis: 81. The legislative scheme allocates to the Committee the fact finding functions in reviewing and investigating a practitioner. There is no scope for the Determining Authority to proceed on the basis of different, additional or inconsistent factual findings to those made by the Committee. Nor is there any scope for the Determining Authority to depart from the characterisation of a practitioner's conduct by the Committee as "inappropriate practice", or to decide that there should be no consequence at all for the practitioner flowing from the Committee's report. The terms of s 106U make it clear that the Determining Authority must impose some kind of consequence or sanction on a practitioner who has been found by a Committee to have engaged in inappropriate practice. 82. The Determining Authority's function is to examine the material before the Committee and its findings, together with any submissions made by the practitioner, and form its own opinion about what, within the range of options set out in s 106U, is the appropriate sanction or consequence for that practitioner in the particular circumstances of the inappropriate practice identified. 133 Furthermore, as her Honour continued at [82]: The opinion formed by the Determining Authority and implemented through the directions given under s 106U must be consistent with the purposes of Pt VAA as set out in s 79A, as well as (at a minimum) being rational, legally reasonable and based on probative material: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [24]-[30] (French CJ), [64]-[76] (Hayne, Kiefel and Bell JJ), [88]-[92], [105]-[113] (Gageler J); Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [124] (Crennan and Bell JJ); FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754 at [16] (French CJ and Gageler J), [31] (Hayne J), [96] (Crennan and Bell JJ). 134 The question whether the Determining Authority must have regard to the PSR Committee's reasons for making a finding of inappropriate practice in a Final Report is more complicated. Those reasons in this case were set out in appendices to its Final Report. There is an obligation on the Committee to give reasons for its proposed findings in the Draft Committee Report under s 106KD(1A), to which the practitioner must be given an opportunity to respond under s 106H(4). Those reasons in turn must set out the findings on material questions of fact in accordance with s 25D of the Interpretation Act (see the legislative note to s 106H(4)). The duty to give reasons in the context of the Draft Report is therefore an aspect of the statutorily prescribed rules of procedural fairness under the Act. However, there is no requirement under the Act for the PSR Committee to give reasons for a finding of inappropriate practice made in the Final Report (although I assume for present purposes that there would be an obligation if a request were made under s 13 of the ADJR Act). This reflects the fact that, by virtue of s 106L(1B) of the Act, no finding of inappropriate practice can be made by a PSR Committee unless the finding and the reasons were included in the Draft Report under s 106KD (see ss 106H(4) and (5) and 106KD(1A)). That notwithstanding, contemporaneous reasons were in fact given by the PSR Committee in appendices to its Final Report (in line with good administrative practice). 135 No party argued (rightly in my view) that it was irrelevant in a jurisdictional sense for the Determining Authority to have regard to the reasons of the PSR Committee when making its findings. However, there being no obligation under the Act to give reasons for the findings in the PSR Committee's Final Report, it may be doubted whether there is an obligation upon the Determining Authority to take such reasons as may be given by the PSR Committee into account, subject to one caveat. The caveat is that the Determining Authority must have regard to the reasons insofar as they are the subject of submissions by the applicant to the Determining Authority under s 106T(3) which must, as I have said, be taken into account. In this case, the findings allegedly not taken into account were set out in the submissions and therefore the Determining Authority was required to have regard to them. In any event, I have assumed for the purposes of determining this ground of review that an obligation existed to have regard to the PSR Committee's reasons in the Final Report per se. 5.1.3 Did the Determining Authority have regard to the relevant considerations? 136 In my view, the applicant has not established that the Determining Authority failed to have regard to relevant considerations. 137 First, as the applicant submits, in its reasons the PSR Committee expressly "did not find" that Dr Selia had provided an inadequate level of clinical input, kept records deficient in essential clinical information, or provided services that were not clinically necessary for some or all of the services investigated with respect to the three MBS items the subject of the pre-billing findings (the Non-Findings). 138 Secondly, as the applicant also submits, in commenting on the draft determination he made submissions to the Determining Authority relying upon (and quoting) the Non-Findings by the PSR Committee. In particular, he submitted that the findings of inappropriate practice were "not the usual type" of inappropriate practice, that "the findings of the Committee were that Dr Selia had performed the great majority of those services appropriately, they were clinically necessary and relevant and importantly, his records were all adequate" and that "for the Determining Authority to suggest that the level of inappropriate practice is serious or, of a very high proportion belies the actual factual findings of the Committee and is erroneous except in so far as it relates to pre-billing." 139 That said, however, the Determining Authority plainly had regard to the substance of those submissions (and therefore to the Non-Findings of the PSR Committee upon which the applicant relied) contrary to the inference which the applicant asks this Court to draw. 140 First the Determining Authority states among other things that it had regard to the Report of the PSR Committee and the submissions made on behalf of Dr Selia under s 106SA of the Act and s 106T(3) (noting expressly that the latter submissions relied on the information in the earlier submission). Consistently with this, under the heading "Background and Findings of Fact", the Determining Authority referred to the findings of inappropriate practice, summarised the PSR Committee's reasons, and noted that its findings are set out in the Final Report and detailed reasons in the appendices to the Final Report. 141 Secondly, the Determining Authority extensively summarised both sets of Dr Selia's submissions in its reasons. In the course of so doing, the Determining Authority expressly noted the submission that: In relation to pre-billing: • Save for the issue of pre-billing the great majority of services examined by the Committee were found to have been appropriate - on all fronts 142 Thirdly, under the subheading "Preliminary" under the heading "Reasons for Final Determination", the Determining Authority stated that, among other things it "has considered the submissions made on behalf of Dr Selia …" 143 Fourthly, as the Commonwealth submits, it cannot be inferred that the Determining Authority failed to have regard to the submissions and the Non-Findings because the Determining Authority failed expressly to address them in the operative part of its reasons. To the contrary, it is apparent that it considered all of the applicant's submissions but focused in the operative part of its reasons upon those which it considered the most significant. In so doing, it implicitly rejected Dr Selia's submissions based in part on the Non-Findings that the proportion of inappropriate practice should not be regarded as "very high". Thus, in addition to the passages already referred to in which the Determining Authority explained that it had had regard to the applicant's submissions, the Determining Authority said in the context of making findings in relation to the direction generally: 36. Although the Determining Authority has set out above some of the submissions made on behalf of Dr Selia and provided details of consideration, it has read and considered all of the submissions and other documents provided on behalf of Dr Selia. 37. The very high proportion of inappropriate practice was noted by the Determining Authority and was a factor which was given some weight in the decision-making process. 144 It follows that no inference can be drawn from the Determining Authority's failure specifically to address the weight to be given to the PSR Committee's Non-Findings in the exercise of discretion as to the directions to be made under s 106U. This is particularly so in circumstances where the Determining Authority had no duty to give reasons in the first place and, therefore, no duty to provide reasons that complied with statutory requirements on the basis of which it could be inferred that any matter not mentioned was not considered to be material: cf Yusuf at 346 [69]. An inference that the Determining Authority did not have regard to a matter by reference to reasons which it was not required to set out should not lightly be drawn: see by analogy, Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 617 [70] (Gummow J (with whose reasons Heydon and Crennan JJ agreed)). 5.2 The unreasonable sanctions ground 5.2.1 The issues 145 Finally, Dr Selia contends that the repayment direction was unreasonable, irrational, disproportionate and lacked an evident intelligible justification. The relevant principles governing an assessment of whether an administrative decision is legally unreasonable have earlier been summarised at [96]-[104]. 146 It is important to emphasise a number of matters at the outset which define the scope of the issues with respect to this ground. (1) The applicant did not contend that the repayment direction per se was beyond the power conferred on the Determining Authority by s 106U(cb) insofar as the direction related to services in fact provided but found to be inappropriate because they were pre-billed. The argument was that the repayment direction was legally unreasonable in the circumstances of this case both by reference to: (a) the reasons given by the Determining Authority; and (b) on the basis of the outcome. (2) No issue was taken with the reasonableness of the repayment direction insofar as it required repayment of benefits for services not in fact undertaken by Dr Selia save to the extent that it was submitted that benefits in this category that had been repaid were not taken into account by the Determining Authority in making the repayment direction. (3) It was not argued that the repayment direction was unreasonable insofar as it related to the other findings of inappropriate practice by the PSR Committee. 147 The grounds relied upon in support of the ground that the repayment direction was unreasonable focused upon the following circumstances: (1) the repayment direction included repayment of benefits for services that were provided and clinically appropriate despite having been billed in advance; (2) the applicant had made payments to third-party providers for equipment for the services for which benefits were required to be repaid; (3) the direction that 60% of the benefits paid be repaid was arbitrary; (4) the pre-billing practice was an administrative practice which had been sanctioned by Dr Dalton; and (5) repayments by Dr Selia in the sum of $200,000 were not taken into account. 148 In short, counsel for the applicant submitted that it was disproportionate for the pre-billing practice to be given such prominence: Because it's an administrative practice engaged in by the dentistry practice. It was sanctioned by the Commonwealth in – by Dr Dalton. It resulted in services being rendered that were … accepted by the Commonwealth after investigation as being undertaken appropriately. So my client did the work. My client paid money to third party providers for the work. My client paid his staff to the tune of 800-odd thousand dollars during the review period. And he has spent that money, and the Commonwealth is now asking for 60 per cent of it back. In my submission, just on the plain mathematics of it, it's completely disproportionate to the error in his billing that was identified. 5.2.2 Construction of s 106U 149 In line with the principles earlier set out, the starting point in addressing the unreasonableness argument with respect to the repayment direction is the language and objects of s 106U(1) pursuant to which the repayment direction was made. That section provides that a determination must contain one or more of the directions set out in the provision. These include, relevantly to the repayment direction against Dr Selia, subs (cb) which reads: if any medicare benefits for a class of services: (i) that were rendered or initiated by the person under review, by an employee of the person under review, or by an employee of a body corporate of which the person under review is an officer; and (ii) in connection with the rendering or initiation of which, or of a proportion of which, the person under review or such an employee is stated in a report under section 106L, based on a finding made under subsection 106K(2), to have engaged in inappropriate practice; have been paid (whether or not to the person under review)—that the person under review repay to the Commonwealth the whole or a part of the medicare benefits that were paid for the services or that proportion of the services, as the case may be; 150 It will be recalled that other directions which may be made in the exercise of discretion under s 106U include a reprimand, a direction requiring the practitioner undertake counselling, a direction that a Medicare benefit otherwise payable cease to be payable, or partial or full disqualification from practice. 151 The purpose of a direction under s 106U must be read in light of the object of Part VAA set out in s 79A of the Act to protect the integrity of the Medicare benefits scheme and, in so doing, to protect, relevantly under s 79A(b), the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice. Given the object of Part VAA and that inappropriate practice is not limited to clinical matters, there is nothing in the text of s 106U(cb) that limits the power to direct the repayment of benefits wrongfully paid to circumstances where the services were clinically unnecessary, were not provided to a clinically appropriate standard, or were not performed at all. 152 Consistently with this, deterrence may be a relevant factor taken into account in the exercise of discretion under s 106U including whether to make a direction under subs (cb), as Mortimer J held in Sevdalis . 153 In Sevdalis, it was submitted by the medical practitioner that the Determining Authority had made directions under s 106U of the Act disqualifying the practitioner from practice and requiring repayment which were punitive. Justice Mortimer accepted that the purpose of making directions under s 106U is protective and not to impose a punishment for contravening the standard set by s 82 (Sevdalis at [145]). While Mortimer J rejected the practitioner's submission at [149] on the basis that it would not be correct to characterise the Determining Authority's reasons for making the directions as punitive, her Honour accepted (rightly in my view) that deterrence as opposed to punishment could be an element taken into account in the exercise of the discretion. Specifically, Mortimer J explained that: 146 In Trade Practices Commission v CSR Ltd [1990] FCA 521; [1991] ATPR 41-076, French J (as his Honour then was) made the following observations regarding the distinction between punishment imposed for breaches of the criminal law and civil penalties imposed for statutory contraventions that are not criminal offences: Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt. IV [of the Trade Practices Act 1974 Cth)]. … The principal, and I think probably the only, object of the penalties imposed by s.76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act. 147 His Honour's comments were recently cited with approval by a plurality of the High Court in Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 90 ALJR 113 at [55], with their Honours going on to state at [59] that "civil penalties are not retributive, but like most other civil remedies essentially deterrent or compensatory and therefore protective". 148 Those cases deal with statutory contexts that differ from the Professional Services Review Scheme provided for by Pt VAA of the Health Insurance Act, but they demonstrate that civil sanctions may be imposed for purposes that include general and specific deterrence without necessarily straying into retribution, which is better seen as the province of criminal punishment. That those principles apply in the context of the Scheme can be seen from decisions such as Mukherjee v Medicare Participation Review Committee [2010] FCA 233; 114 ALD 148, in which Cowdroy J said that sanctions under an earlier version of the Scheme were "primarily intended to ensure the integrity of the Scheme's operation and [are] not to be seen as a form of penalty or punishment simpliciter" (at [27]) but could "include an element of deterrence" (at [31]). 154 It follows that I accept the Commonwealth's submission that repayment directions under s 106U are not limited to inappropriate clinical practices. Rather, there is no reason why practices found to be inappropriate which seek to abuse the Medicare benefits scheme in other respects posing a risk to the integrity of the scheme (such as claiming the benefit by one designated number rather than another, failing to keep proper records, or pre-billing) cannot be the subject of a repayment order. Even if that risk has not in the individual case been realised in terms of a quantifiable loss to the Commonwealth or otherwise, deterrence may be a factor warranting a repayment of all or part of the benefits. As the counsel for the Commonwealth submitted: …we say what happened here falls squarely within the aim of protecting the integrity of the program. I mean, there are rules as to what you can do. Those rules haven't been followed. It has been shown that that would be found to be unacceptable to the requisite standard by peers. And your Honour will recall the findings that it's not clear what had been repaid. The Commonwealth in the position of having to go through and work out what has been provided or not, whether things have been repaid or not, when; I mean, one really is fairly and squarely within the whole ambit of protection of the integrity of the program… 5.2.3 The Determining Authority's reasons for requiring repayment of 60% of MBS benefits 155 I have earlier set out the Determining Authority's findings with respect to the weight to be given to various factors in deciding upon what, if any, directions should be made as a result of the findings of the PSR Committee (see above at [63] – [72]). 156 The reasons adopted by the Determining Authority in deciding that the repayment direction should be made were as follows. 40. Consistent with the objectives of the Act, the Determining Authority is not satisfied that the Commonwealth should have to bear the cost of services in respect of which Dr Selia has been found to have engaged in inappropriate practice. 41. In the exercise of its discretion, the Determining Authority has considered the information contained in the submissions made by Unsworth Legal on behalf of Dr Selia which evidences that Dr Selia has changed his practice and made efforts to train himself in record keeping procedure. 42. The Determining Authority notes the nature of dental practice, which required Dr Selia to make payments directly to third party providers of items such as models, bridges and implants. In the draft determination the Determining Authority invited Dr Selia to bring forward evidence in relation to the repayment of benefits. The Determining Authority stated in the draft determination: 35 The Determining Authority also notes the submission that Dr Selia has made repayments to Medicare in the order of $200,000 in respect of services billed but not rendered or completed. Apart from the correspondence relating to repayment of the benefit paid in respect of MBS Item 85615 service 26 examined by the Committee, copies of only five refund letters to the Medicare Adjustments Department have been submitted and the associated refund cheques provide a total less than $10,000. Further the associated Bulk Bill Assignment Advices do not all bear dates which fall within the review period. For example, the services in respect of one patient are dated 26 April 2012, and the services in respect of another are dated 17 February 2010. Both dates are outside the review period. 36 If Dr Selias [sic] produces evidence in his submissions on this draft determination that he has repaid benefits to Medicare that he received from the rendering of MBS items 85615, 85661, 85672 and 85011 during the review period, the Determining Authority would consider reducing the repayment by a corresponding amount. 43. No new information on this issue has been provided to the Determining Authority in the submissions from Unsworth Legal on the draft determination. 44. The Determining Authority has also noted Dr Selia's age, the decrease in his work levels and his current debts. 45. Accordingly, the Determining Authority considers that a direction on repayment should be made for part of the Medicare benefit that was paid for the proportion of those services in connection with which Dr Selia was found to have engaged in inappropriate practice. 46. When considering the serious nature of the inappropriate practice, including the findings on pre-billing, inadequate clinical input, failure to satisfy the MBS requirements for the items, clinical records and the purpose of the Act, the submissions made on behalf of Dr Selia including the financial position of Dr Selia, Dr Selia's repayments to Medicare Australia and the changes he has made to his practice, the Determining Authority has, on balance, decided it should exercise its discretion to make a direction for repayment of 60% of the Medicare benefits that were paid for the proportion of the MBS item services in connection with which Dr Selia was found to have engaged in inappropriate practice. 47. The amount of the repayment has been calculated as a proportion of the amount that Dr Selia actually billed for the relevant MBS item numbers as set out in Table 3 of the data provided to the Director by the delegate of the Chief Executive Medicare with the request for review. 157 The Determining Authority concluded that: 50 The amount to be repaid has been determined in accordance with paragraph 106U(1)(cb) of the Act as follows: (a) 100% MBS item 85615 services examined by the Committee (932 services) = $893,025.55 x 60% = $535,815.30 (b) 100% MBS item 85661 services examined by the Committee (1110 services) = $487,626.45 x 60% = $292,575.90 (c) 100% MBS item 85762 services examined by the Committee (423 services) = $486,379.20 x 60% = $291,827.50 (d) 74% MBS item 85011 services examined by the Committee (500 services) = $20,154.20 x 74% = $14,914.10. $14,914.10 x 60% = $8948.50 5.2.4 Is the repayment direction legally unreasonable? 158 The applicant contended that it was unreasonable for the Determining Authority to observe that Dr Selia had engaged in a "very high proportion of inappropriate practice" in circumstances where the inappropriateness derived only from one aspect of the service, namely, its billing. However, as the Commonwealth submitted, that finding does no more than reflect the PSR Committee's finding of inappropriate practice in connection with 74% of the MBS item 85011 services and 100% in relation to the three remaining MBS item services. 159 The applicant also submitted that it was unreasonable for the Determining Authority to make a repayment direction in respect of services that were provided and were clinically appropriate, and in circumstances where he had paid out money to third parties for equipment in connection with the rendering of those services. Underlying this submission is the proposition that if Dr Selia had billed the services after they had been provided, there would have been no question as to his entitlement to the payment of benefits for the provision of those services. Added to this, the applicant submitted that he had understood the practice of pre-billing to be acceptable and that Dr Dalton's inspection had confirmed this belief. 160 I do not accept those submissions and consider that the applicant has not demonstrated that the decision of the Determining Authority to make the repayment direction was legally unreasonable, even though the amount of the repayment direction is substantial and may be regarded as harsh. 161 First, the Determining Authority found at [40] of its reasons that it was not satisfied that the Commonwealth should have to bear the cost of services in respect of which Dr Selia has been found to have engaged in inappropriate practice. That view reflects the protective purpose intended to be served by directions under s 106U as explained above. Relevant to this finding among other things was what the Determining Authority considered to be the "serious nature" of the inappropriate practice disclosed in the PSR Committee's final report, and specifically that the pre-billing of services was "a matter of significant professional concern" (at [21] and [22] respectively). The Determining Authority's findings in this regard align with the findings by the PSR Committee in its reasons that the general body of dentists would regard pre-billing as "a gross departure" from the standard expected of dentists in claiming Medicare benefits (at [42]). In this regard, the Determining Authority specifically noted that the PSR Committee considered pre-billing by itself constituted inappropriate practice and observed that the practice is inconsistent with the Act and reflected in the commentary in the Medicare Benefits Schedule Dental Services during the review period (at [23]). Furthermore, the Determining Authority found at [38] that: The Determining Authority considers that the practitioner bears responsibility for ensuring that clinical input is adequate, avoiding billing practices that are inconsistent with the Act, meeting the requirements of these MBS services, and keeping adequate and contemporaneous records detailing sufficient clinical information. In this regard, the Determining Authority notes the Committee's finding that Dr Selia should have familiarised himself with the requirements for billing the Commonwealth (both generally and with respect to specific MBS items) prior to making claims. 162 Secondly, the applicant submitted that it was disproportionate for the pre-billing to be given such prominence "[b]ecause it's an administrative practice engaged in by the dentistry practice". However, that submission ignores the PSR Committee's finding that post-service billing was a legal requirement, not merely an administrative nicety, and a matter bearing upon the lawfulness and financial integrity of the Medicare scheme (at [70]). As the PSR Committee found, there is no entitlement under the Act to payment of a Medicare benefit until a service is rendered. No issue was taken with that finding. Accordingly, Dr Selia had no entitlement as a matter of law to the benefits which he claimed and was paid with respect to the services in connection with which the findings of inappropriate practice were made. 163 Against this, Dr Selia submits that the purpose of a direction under s 106U is limited to that identified by von Doussa J in Retnaraja v Morauta (1999) 93 FCR 397 (Retnaraja) at 418 [81], namely "to enable the recovery of Medicare benefit which should not have been paid, and to prevent payment where Medicare benefit is not rightly due." Relying upon this passage, the applicant submits that the fact that the services were subsequently provided meant that the wrongful payment of the benefit in each case was effectively 'cured' such that they became "rightly due" and that, therefore, a direction that they be repaid was unreasonable. However, no provisions of the Act are pointed to by which the wrongful payment of the benefit is 'cured'. Furthermore, the submission ignores the different wording of s 106U(1)(cb) as it stood before the amendment by the Health Insurance Amendment Act (No 1) 1997 (Cth) and as considered in Retnaraja. The provision then provided for a determination to contain a direction: (c) that the person under review repay to the Commonwealth an amount equivalent to any medicare benefit payable for inappropriate services (whether or not the medicare benefit was paid to the person), and that any medicare benefit that would otherwise be payable for those services cease to be payable. 164 Moreover, in Retnaraja the repayment direction was found to be wrong in law in circumstances where among other things, it directed repayment of a percentage of all benefits paid for four categories of services, but the reduction from 100% was not based upon any distinction between those services that were appropriate and those which were not, or between payments of benefit rightfully paid and those wrongfully paid (Retnaraja at 419 [89]). That is not the present case where the percentage of benefits directed to be partially repaid equated to the percentage of inappropriate practice undertaken in connection with the referred MBS item services, utilising using the sampling provisions of Part VAA. Thus, given that there was no issue that there had been sampling as authorised by s 106K, the Determining Authority was authorised to impose a repayment direction for the class of the item 85011, 85615, 85661 and 85672 services. 165 Dr Selia also relied on s 129AC which provides that where, as a result of the making of a false or misleading statement, an amount is paid purportedly by way of benefit in excess of the amount that should have been paid, the amount of the excess (and only the amount of the excess) is recoverable as a debt due to the Commonwealth. However, the section with respect does not assist the applicant's argument. Section 129AC is in different terms from s 106U and achieves different ends, it is not in Part VAA and therefore the objects in s 79A do not apply to its construction, and in any event it does not overcome the difficulty that no provision "curing" the wrongful payment on provision of the pre-billed services has been identified. Further, under s 129AEA an administrative penalty may be paid in addition to the recovery of the amount under s 129AC where certain criteria are met. 166 Thirdly, the applicant relies upon the finding by the Determining Authority at [26] that it gave "little weight" to Dr Selia's submission that he was entitled to rely on what was described as the implicit endorsement by Dr Dalton of Dr Selia's pre-billing practice. In this regard, counsel for the applicant submitted that "it's inconceivable... that he didn't see the client's billing practices. It's inconceivable because that's what Medicare is about…" However, the finding by the Determining Authority that it gave "little weight" to Dr Selia's submission at [26] was based upon its finding at [25] as to the findings made by the PSR Committee: The Determining Authority noted that it had been submitted to the Committee that Dr Dalton had examined three patient records and recorded that "All treatment plans were fully set out and signed by the patient". The Committee also noted that '[t]he Committee does not know what particular records were shown to Dr Dalton and does not know whether or not Dr Dalton appreciated that patients were pre-billed." 167 Furthermore, the Determining Authority found that "[t]he Committee was unequivocal in its view that pre-billing, in the circumstances in which Dr Selia pre-billed patients, constituted inappropriate practice" (at [27]). The findings by the Determining Authority as to what the PSR Committee found and why, were therefore open to it; indeed, it is difficult to see how issue could be taken with the Determining Authority's findings in this regard. The applicant's submission ultimately, therefore, seeks impermissibly to take issue with the merits of the PSR Committee's findings and fails to grapple with the fact that it was not open to the Determining Authority to revisit the PSR Committee's findings. 168 Fourthly, the applicant submitted that it was unreasonable for the Determining Authority to make a repayment direction when he had made payments to third-party providers for equipment for some of the services. In his submission to the Determining Authority, Dr Selia submitted that he had incurred fees in the vicinity of $240,000 in relation to laboratory fees, and for the costs of implants, crowns and models. The applicant did not however point to evidence before the Determining Authority in support of that amount but rather submitted in this application that support for that amount should be inferred on the following basis: For three of the four categories, it involves the insertion or implanting of teeth, and my client doesn't make teeth implants. That is not – it's not part of his practice … So in all of the categories of the second and third and fourth categories of MBS items in the MBS list – not the oral examination one but all of the others – your Honour can find that he had to make payments to outsider providers to make the teeth that he implanted. 169 The reasons of the Determining Authority must be fairly read bearing in mind that that they were written by decision-makers who are not legally trained. As Mortimer J said in Sevdalis at [132], "'[f]airness' in this context includes reading the reasoning as a whole, because it is only by doing so that a reviewing court can gain a balanced appreciation of how the decision maker understood and applied the statutory concepts." In this regard, the applicant's submission among other things overlooks the fact that, fairly read, the Determining Authority did take this consideration into account in adjusting the amount of the repayment notwithstanding the absence of evidence verifying the precise amount claimed. The Determining Authority specifically noted at [42] "the nature of dental practice, which required Dr Selia to make payments directly to third party providers of items such as models, bridges and implants." When the structure of the reasoning is considered, it is apparent that that factor was then taken into account by the Determining Authority in determining that a direction on repayment should be made for part only of the Medicare benefit paid for the proportion of those services in connection with which Dr Selia engaged in inappropriate practice and in setting the percentage at 60% (at [45] and [46]): see further at [172] below. 170 In the fifth place, the applicant submitted that the Determining Authority failed to take into account his submission that he had made repayments in an amount of approximately $200,000 to Medicare for services ultimately not provided or where the patient did not return within a reasonable timeframe for completion of the proposed treatment. In response, the Commonwealth submitted that the $200,000 figure was not limited to repaying amounts relating to services the subject of the PSR Committee's findings of inappropriate practice, referring to the broader concerns initially raised with Dr Selia which ultimately led to the referral under s 93: see above at [22] – [25]. Thus, it is possible that part only of the amount which was said to have been repaid related to the services which were the subject of the findings by the PSR Committee. However, the short point (also made by the Commonwealth) is that the Determining Authority expressly took into account Dr Selia's repayments to Medicare where they had been substantiated by evidence but that, despite being invited to give evidence of further repayments in the Draft Determination, Dr Selia had provided no further information in his submissions on the Draft Determination (at [42]-[43]). 171 The applicant also submitted that he did not obtain any monetary advantage from pre-billing "except that he got the money a little bit earlier". However, there was no evidence to that effect. Indeed, it is difficult to reconcile that submission with the submission that the monies were used to purchase equipment from third parties in relation to the services subsequently rendered. 172 Finally, as I have mentioned the Determining Authority did not require repayment of 100% of the amount of the Medicare benefit paid to Dr Selia for the proportion of services in connection with which he was found to have engaged in inappropriate practice, but only 60% of that amount. That figure of 60% was neither inexplicable nor baseless. Rather, it is apparent that, in deciding upon that percentage, the Determining Authority took account of various mitigating factors on which Dr Selia relied including his financial position, his repayments to Medicare and the changes which he made to his practice in light of the PSR Committee's findings, as well as such matters as the seriousness of the findings of inappropriate practice (at [46]). That process is not one susceptible to a precise mathematical calculation, as counsel for the applicant accepted in oral submissions. Rather, fairly read, the Determining Authority reached the figure of 60% by weighing the different factors in an evaluative process akin to the process of intuitive synthesis in sentencing in criminal law, as the Commonwealth submitted. 173 It follows that neither individually nor cumulatively do the matters relied upon by the applicant demonstrate that the Determining Authority's decision to make the repayment direction lacks an intelligible foundation or is otherwise irrational or arbitrary so as to make good the contention that it is legally unreasonable. While reasonable minds might differ as to the direction that might have been appropriate, the decision by the Determining Authority to make the repayment directions here fell within the range of possible lawful outcomes of the exercise of the discretion in s 106U and was not obviously disproportionate or unjust in the circumstances. 6. CONCLUSION AND RELIEF 174 For the reasons set out above, the application is dismissed with costs. I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate: Dated: 13 January 2017