Karmakar v Minister for Health (No 2) [2021] FCA 916

Federal Court of Australia

Karmakar v Minister for Health (No 2) [2021] FCA 916 File number: QUD 443 of 2018

Judgment of: LOGAN J

Date of judgment: 6 August 2021

Catchwords: ADMINISTRATIVE LAW – Health Insurance Act 1973 (Cth) – application for judicial review of exercise of power by the Director of the Professional Services Review Agency to refer the applicant to a committee – whether the Director was obliged to disclose the identity of a practitioner consulted pursuant to s 90 of the Act – where s 89C(1)(b)(i) of the Act requires the Director to provide a report to the applicant – held: the Director discharged the procedural fairness duty by the provision of that report – whether the exercise of power by the Director ought to have been made in reference to an "objective standard" – where the standard specified in s 82(1)(a) is a professional evaluative standard – held: the Director correctly exercised her power in reference to "inappropriate practice" ADMINISTRATIVE LAW – Health Insurance Act 1973 – application for judicial review of exercise of power by the Committee to find the applicant had engaged in inappropriate practice – whether the exercise of the power by the Committee ought to have made in reference to an "objective standard" – held: the Act only requires that the Committee's evaluation be reasonable – whether the Committee took into account the incompleteness of records – held: the Committee's report makes clear issue taken into account – where the applicant makes various claims that the Committee's decision affected by bias and procedural unfairness – where none of allegations made out – application dismissed PRACTICE AND PROCEDURE – application for judicial review of exercise of power by Chief Executive to request the Director to review the applicant and by Director to decide to undertake that review – whether application brought pursuant to the Judiciary Act 1903 (Cth) in the alternative – where statement of claim and submission exclusively refer to the Administrative Decisions (Judicial Review) Act 1977 (Cth) – where Court proceeds on basis that jurisdiction solely conferred by ADJR Act – held: particular exercises of power by the Chief Executive and Director "wholly procedural" and not amenable to review because they were not decisions to which ADJR Act applies CONSTITUTIONAL LAW – where applicant submits that s 106ZR of the Health Insurance Act 1973 is invalid – whether s 106ZR unreasonably burdens political communication and goes beyond legislative purpose – where enactment of Pt VAA of the Health Insurance Act 1973 supported by s 51(xxiiiA) or s 51(xxxix) of the Constitution – where Act provides for disclosure in various forms – where Act does not prevent the applicant from calling witnesses or adducing statements before the Committee – where Act does not prevent disclosure by applicant that she is subject to a determination or public discussion that the applicant considers the process unfair – held: s 106ZR is not incompatible with the requirements of responsible government – application dismissed