Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YFA v Secretary, NSW Ministry of Health [2023] NSWCATAP 285 Hearing dates: 25 August 2023, further hearing on papers after 29 September 2023 Date of orders: 24 October 2023 Decision date: 24 October 2023 Jurisdiction: Appeal Panel Before: Hennessy, ADCJ, Deputy President Dr R Dubler SC, Senior Member Decision: 1. Appeal allowed. 2. Set aside the orders of the Tribunal of 4 April 2023. 3. The parties are to file submissions on the question as to whether or not the Respondent at the relevant time had de facto power to grant the approval of health care workers with a blood borne virus to perform exposure prone procedures within the meaning of s 49J of the Anti-Discrimination Act 1977 (NSW) in accordance with the following timetable: (a) the Appellant is to file submissions within 14 days of the date of this decision; (b) the Respondent is to file any submissions in response within 14 days thereafter; (c) the Appellant is to file any submissions in reply within seven days thereafter; (d) such submissions are to include whether or not the hearing on this question should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: HUMAN RIGHTS - disability discrimination – whether the Secretary, NSW Ministry of Health is a qualifying 'authority or body' within the meaning of s 49J(1) of the Anti-Discrimination Act 1977 (NSW) in respect of private health facilities Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Services Act 1997 (NSW) Public Health Act 1991 (NSW) (repealed) Public Health Act 2010 (NSW) Private Health Facilities Act 2007 (NSW) Private Health Facilities Regulation 2017 (NSW) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Construction, Forestry, Maritime, Mining and Energy Union v The Australian Building and Construction Commissioner (2020) 282 FCR 1 Dionysatos v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281 Eagle Arts and Vocational College v State of NSW [2018] NSWCATAD 147 FBY V Secretary, NSW Ministry of Health [2021] NSWCATAD 319 Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 FHH v Port Stephens Council [2023] NSWCATAP 239 Khoury v Government Insurance Office of NSW (1984) 165 CLR 622 Moavenian v Transport for NSW [2021] NSWCATAD 77 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 SZTAL v Minister of Immigration and Border Protection (2017) 262 CLR 362 TU v AMI Australia Holdings Pty Ltd trading as Advanced Medical Institute [2010] NSWADT 290 Yong v Antworks Pty Ltd [2016] NSWCATAP 14 Waters v Public Transport Corporation (1991) 173 CLR 341 Texts Cited: Nil Category: Principal judgment Parties: YFA (Appellant) Secretary, NSW Ministry of Health (Respondent) Representation: Counsel: P Lowson (Appellant) T Prince (Respondent) Solicitors: HIV/AIDS Legal Centre Inc (NSW) (Appellant) Crown Solicitor (Respondent) File Number(s): 2023/00139185 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure, publication or broadcast of the name of the Appellant is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Citation: [2023] NSWCATAD 83 Before: T Simon, Principal Member Dr M K Murray, General Member File Number(s): 2020/00304104 reasons for decision Introduction 1. The Appellant appeals from a decision of the Administrative and Equal Opportunity Division of the Tribunal which dismissed his complaint of disability discrimination by a 'qualifying body': FBY v Secretary, NSW Ministry of Health [2023] NSWCATAD 83 (the Decision). 2. The Appellant alleges that the Respondent discriminated against him on the grounds of his Human Immunodeficiency Virus (HIV) status pursuant to s 49J of the Anti-Discrimination Act 1977 (NSW) (the AD Act). That provision makes it unlawful in certain circumstances for a 'qualifying body' to discriminate against a person on the ground of disability. A qualifying body is "an authority or body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation . . . ": AD Act, s 49J(1). Section 4(4) expands that definition to include "a reference to the conferring, renewing, extending, granting, awarding, approving, issuing or accepting of a recognition, registration, enrolment, approval or certification by such an authority . . ." 3. The Tribunal concluded that the Respondent was not an authority or body described in s 49J of the AD Act, and that accordingly the Appellant's complaint should be dismissed under s 108(1)(a): see Decision at [57] – [60]. Having decided that question as a preliminary issue, the Tribunal did not need to determine whether the Respondent had discriminated against the Appellant on the ground of disability. 4. The Appellant by way of his amended Notice of Appeal seeks to raise two grounds identified as questions of law. In essence, the Appellant contends that the Tribunal misconstrued s 49J(1) of the AD Act and the various statutory powers the Respondent had in respect of private health facilities. Background Tribunal's summary of factual background 1. At [3] – [12], the Tribunal set out the following factual background: 3 In December 2010, FBY graduated from university and was accepted as a trainee neurosurgeon. In March 2014, FBY was diagnosed with HIV. The relevant NSW Health policy in place at the time, Policy Directive: NSW Health HIV, Hepatitis B or Hepatitis C - Health Care Workers Infected, provided that, healthcare workers infected with HIV were not permitted to perform expose prone procedures (EPPs). Accordingly, FBY could not undertake operations, which was a requirement to continue his neurosurgery traineeship between March 2014 and March 2015. 4 In 2015, FBY commenced an application in the Australian Human Rights Commission alleging disability discrimination. 5 In or about December 2015, the Secretary introduced Interim Guidelines for Health Care Workers with HIV Infection Performing Exposure Prone Procedures Working for NSW Health (Interim Guidelines). The Interim Guidelines permitted a person infected with HIV to perform EPPs provided that certain conditions were met. The Interim Guidelines are expressed to apply to 'health care workers who are working for NSW Health and to health care workers performing EPPs in NSW Health Facilities." 6 In a health note from the Chief Health Officer, dated 13 June 2016, titled 'HIV - Infected Health Care Worker Resuming Exposure Prone Procedures" the following is stated: NSW Health acknowledges that there is no longer any scientific basis to prevent HIV infected HCWs in clinical care and with a suppressed viral load from performing EPPs. 7 The note records supported (sic) the introduction of the Interim Guidelines 'until implementation of the revised national guidelines is approved by AHMAC and occurs nationally.' 8 FBY continued his neurosurgery training in public health facilities between February 2016 and February 2018. 9 In May 2018, FBY was advised by the (sic) Dr Selvey, an employee of NSW Health, that the Interim Guidelines did not apply to private health facilities. FBY was told that the Communicable Diseases Network of Australia, Australian National Guidelines for the Management of Health Care Workers Known to be Infected with Blood-Borne Viruses, was the policy that applied to private health facilities (2012 CDNA Guidelines) and that 2012 CDNA Guidelines precluded HIV positive healthcare workers from performing EPPs. 10 On 17 December 2019, FBY made a complaint to the President of the Anti­Discrimination Board. On 19 October 2020, the President of the Anti­Discrimination Board referred the complaint to the NSW Civil and Administrative Tribunal (NCAT) for hearing under s 93C of the Anti-Discrimination Act. 11 FBY alleges that the Secretary is responsible for the implementation of health care standards including the application of guidelines in health care facilities in NSW, including the Interim Guidelines. 12 FBY alleges that the Secretary discriminated against FBY, by its act or omission, when, in exercising its functions as a qualifying body, it failed to ensure that those with blood borne viruses could perform EPPs in private health facilities. 1. The Appellant alleges a breach of s 49J(1)(a) of the AD Act which makes it unlawful for "qualifying bodies" to discriminate against a person on the ground of disability by refusing or failing to confer, renew or extend authorisations or qualifications that facilitate the practice a profession. 49J Qualifying bodies (1) It is unlawful for an authority or body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of disability— (a) by refusing or failing to confer, renew or extend the authorisation or qualification, or (b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or (c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held. 1. Section 4(4) of the AD Act expands the meaning of conferring, renewing or extending an authorisation or a qualification in the following way: A reference in this Act to the conferring, renewing or extending of an authorisation or a qualification, in relation to an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation, includes a reference to the conferring, renewing, extending, granting, awarding, approving, issuing or accepting of a recognition, registration, enrolment, approval or certification by such an authority or such a body or to the admission of a person to membership of such an authority or such a body. 1. Section 49B of the AD Act defines discrimination on the ground of disability. However, as the Tribunal was concerned only with the preliminary issue as to whether the Respondent is a qualifying body, there was no need for it to determine whether any allegedly discriminatory conduct came within the definitions of disability discrimination in that provision. Identification of allegedly discriminatory conduct 1. The Tribunal's summary at [6] above, expresses the allegedly discriminatory conduct to be failing to ensure that those with blood borne viruses could perform EPPs in private health facilities. But that is not precisely how the Appellant characterised the allegedly discriminatory conduct in his complaint to the President of the Anti-Discrimination Board or subsequently. In that complaint, the Appellant alleged that during the period from May to December 2018 the Respondent discriminated against him on the ground of his HIV status by implementing the 2012 CDNA guidelines (which precluded HIV positive healthcare workers from performing EPPs) and not the Interim Guidelines (which permitted a person infected with HIV to perform EPPs provided certain conditions were met) in private health facilities. 2. The Appellant described the allegedly discriminatory conduct in slightly different terms at paragraph 41 of his submissions of May 2022: Had the Respondent extended the interim guidelines so as to apply to health care workers irrespective of where they worked – in the same way as clause 3.3 of the Policy Directive applied – it would have facilitated the practice of the applicant's profession. By failing to do so, and by leaving clause 3.3 untouched in the Policy Directive, the Respondent discriminated against the applicant within the terms of s 49J. 1. The common thread is that the Respondent discriminated against the Appellant pursuant to s 49J(1)(a) by "failing to extend the interim guidelines so as to apply to health care workers irrespective of where they worked". In submissions on appeal the Appellant characterised the relevant failure as failing to grant an approval to him as a health care worker with a blood borne virus, to perform EPPs subject to conditions concerning their treatment and monitoring of their viral load (the relevant Approval). 2. When viewed in the context of s 49J, our understanding of the complaint is that by failing to amend the interim guidelines so as to allow health care workers with blood borne viruses to perform EPPs irrespective of where they worked (subject to conditions concerning their treatment and monitoring of their viral load), the Respondent failed to confer on the Appellant an approval that is needed for or facilitates the practice of a profession. Procedural history 1. The Tribunal set out the history of an earlier application for dismissal at [13] – [17] of the Decision: 13 The Secretary previously filed an application for dismissal of the proceedings on the basis that the Secretary has no power to "implement" policies in private health facilities and, in any event, the Secretary is not a "qualifying body" for the purposes of s 49J of the Anti-Discrimination Act. That application was subsequently dismissed - see FBY v Secretary, NSW Ministry of Health [2021] NSWCATAD 319. At [39] – [43] of the reasons for that decision the Tribunal stated: For current purposes I will assume but not decide that between 2014 and December 2018, all NSW private health facilities applied the 2012 CDNA Guidelines. However, that does not establish that the Secretary expressly or implicitly required private health facilities to comply with those guidelines. Even if established, it does not follow that the Secretary was empowered to confer an authorisation or qualification on health workers working in, or applying to work in, private health facilities. The fact that the Regulation required private health facilities to develop and implement an infection control policy and be responsible for clinical governance and patient care, does not exclude the possibility that through the licensing or accreditation processes, the Secretary expressly or implicitly required facilities to comply with the 2012 CDNA Guidelines, in part or whole. The Secretary makes a powerful argument that even if it is established that she required private health facilities to apply the 2012 CDNA Guidelines, it does not follow that she had power to confer an authorisation or qualification on health workers, that is needed for such workers to practice their relevant profession or to engage in their occupation at private health facilities. However, the issue cannot be as neatly disposed of as the Secretary suggests by pointing to the absence of an express power given to her to confer, renew or extend an authorisation or qualification on health workers engaged by private health facilities. The answer to that question will turn on the nature of the requirement, if any, imposed by the Secretary on private health facilities with respect to the 2012 CDNA Guidelines and the proper construction of s 49J of the Anti­Discrimination Act. It is regrettable that the material the applicant sought to obtain under summons, which he contends is critical to an understanding of the reason NSW private health facilities en masse applied the 2012 CDNA Guidelines until December 2018, and the role played by the Secretary, was not available for the dismissal hearing. Apparently there was a dispute over the costs sought to answer that summons. I am mindful that if the proceedings continue, it is possible that dispute will not be resolved, or that any material produced will not assist the applicant. Despite these concerns I have decided that it would be premature to exercise that power until the applicant is given a further opportunity to obtain the material he contends is critical to a proper understanding of the role played by the Secretary, in relation to her purported failure to confer an authorisation or qualification on health workers with HIV working at private health facilities. In reaching that decision I have taken into account as the authorities have consistently emphasised, that the power to dismiss a complaint under s 102 of the Anti-Discrimination Act must be exercised with extreme caution. I have decided not to exercise the discretion to dismiss the Complaint. 14 The respondent subsequently sought that the Tribunal deal with the preliminary issue of whether the respondent is a qualifying body for the purposes of s 49J of the Anti-Discrimination Act, on the basis that if the Tribunal were to find that the respondent is not a qualifying body, then there could be no discrimination for the purposes of s 49J of the Anti-Discrimination Act. 15 On 1 December 2021 directions were made by the Tribunal and the applicant was given leave to apply for the summons relevant to the issue as to whether the Secretary is a qualifying authority. Directions were also made for the exchange of documents relevant to that issue. The matter was listed for hearing on 2 March 2022 and no objection was raised by the applicant who was legally represented. The application for summons was issued on 8 December 2021 and the applicant filed submissions on the preliminary issue in accordance with 22 January 2021. 16 After initially raising no objections to having the matter listed for preliminary hearing of the issue, and indeed complying with directions, the applicant subsequently sought that the hearing on 2 March 2022 be vacated. On 25 February 2022, the Tribunal noted that no reason had been provided as to why the hearing should be vacated and that the application to vacate the hearing would be dealt with at the hearing on 2 March 2022. On 2 March 2022, after hearing the parties in relation to that applicant objection to the preliminary issue being determined separately, the Tribunal determined that the hearing should proceed. The applicant sought an adjournment on the basis that they were not ready to proceed with the hearing on 2 March 2022. The matter was subsequently adjourned to 25 March 2022 and further directions were made for the applicant to provide any material and submissions in reply. The parties were also given a considerable time to provide written submissions after that hearing. 17 It is noted that the applicant continues to make submissions objecting to the Tribunal dealing with the issue of whether the applicant was a qualifying body as a preliminary issue. In our view the applicant has now been given ample opportunity to issue summonses and provide documents in relation to the preliminary issue and has been on notice of the issue since the determination of the summary dismissal application. We note that pursuant to s 38(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal determines its own procedure in relation to the matter and we are of view that it is consistent with the Tribunals guiding principles, of 'just, quick and cheap resolution' (s 36) to decide the preliminary issue first. If the respondent is not a qualifying body for the purposes of s 49J of the Anti-Discrimination Act, then there is no reason to put the parties to further expense in relation to the proceedings. The Tribunal's statement of the Appellant's submissions at first instance 1. At [23] to [25] of the Decision, the Tribunal summarised the Appellant's submissions on the preliminary question: 23 FBY submits that the respondent has discriminated by allowing the continuation of the discriminatory practice in NSW private health facilities of excluding HIV infected health care workers from performing EPPs. They refer to NSW Health Policy Directive PD 2005 162, published on 25 January 2005 (rescinded on 21 June 2019) which was issued by NSW Health and states on the front cover that it applies to "Private Hospitals and day procedure Centres". The Policy Directive comprises a Circular dated 22 October 1999 that includes a statement that 'Private health care facilities are advised to adopt this policy unless they already have in place equivalent policy on this issue' (Circular page 1) and 'It is recommended that ...private hospitals also use the Circular as a basis for policy development.' 24 FBY submits that NSW Health had the power to implement a policy directive that would have applied in private health facilities and that would have permitted the applicant to perform EPPs subject to his HIV viral loads being appropriately managed. 25 FBY submits that NSW Health was on notice from 2014 that the prohibition of HIV positive health care workers from performing EPPs was outdated, and discriminatory. FBY submits that notwithstanding that knowledge, in November 2016 NSW Health published Policy Directive PD2016 49 - NSW Health Policy Directives and Other Policy Documents which makes clear that all NSW Health organisations are required to comply with all policy directives. While FBY concedes this did not expressly apply in terms to private health facilities, he submits it had the effect of confirming the continued application of Policy Directive PD 2005_162, even though this policy directive was contrary to the Interim Guidelines issued in March 2016. 1. Clause 3.3 of the Policy Directive referred to in the Tribunal's reasons at [25] stated that: Exclusion of infectious HCWs from practising EPPs HCWs who perform EPPs must know their HIV, HBV and HCV status. Medical practitioners should note that NSW Medical Board policy requires medical practitioners who perform, or who could reasonably be anticipated to perform, EPPs to know their infectious status. Infectious HCWs (ie those who are either HCV PCR positive or HBV DNA positive or HBeAg positive or HIV positive) must not perform EPPs. Where there is uncertainty about whether certain procedures are exposure prone, the matter may be referred to the NSW Health Blood Borne Viruses Advisory Panel (hereafter the Advisory Panel) - see Appendices 1,2 and 3. Professional associations have a role in assisting the Advisory Panel, by representation from a member of the relevant profession, in determining what is exposure prone on a case by case basis. Tribunal's reasons 1. The Tribunal accepted that the Respondent is an 'authority' within the meaning of s 49J of the AD Act: [30]. However, the parties had not identified anything in the Health Services Act 1997 (NSW) which demonstrated that the Secretary 'authorises or qualifies FBY': [32]. 2. The Tribunal then considered relevant provisions of the Private Health Facilities Act 2007 (NSW) and the Private Health Facilities Regulation 2017 (NSW): at [33] – [45]. That legislation sets out how private health facilities are regulated. The Tribunal highlighted s 39(7) of the Private Health Facilities Act which provides: Despite any other provision of this section, the licensee of a private health facility is responsible for the safety of patients at the facility and for clinical governance of the facility. 1. Clause 13 to Sch 1 of the Private Health Facilities Regulation requires a private health facility to have a written infection control policy. The Tribunal noted that it is the responsibility of each private health facility to determine the content of that policy. The Tribunal went on at [45] to state that the Private Health Facilities Regulation does not prescribe the content of a private health facility's infection control policy. 2. At [46], the Tribunal then recorded the submission that clause 3.3 of Policy Directive PD 2005_162 applied to all health care workers in New South Wales, regardless of whether they were working in a public or private facility. 3. The Tribunal's response to that submission, at [47] – [48] was as follows: 47. In our view, and consistent with the Private Health Facilities Act and Regulation, the Policy Directive PD 2005_162 could only be binding only on NSW Health facilities. Even though it states on the front cover that that the directive applies to Private Hospitals, there was no specific power for the Secretary to impose policies on private health facilities and the Secretary could not be a condition on the licences of private health facilities to that effect. 48. Further, the fact that the definition of "health care worker" in the 2005 Policy Directive is not confined to NSW Health staff does not mean that health care workers working at private health facilities are covered by the Policy Directive PD 2005_162. 1. At [49] the Tribunal addressed the Appellant's submission that the evidence of Dr Selvey, who gave evidence for the Respondent, established a wider application of the Policy Directive PD 2005_162: Dr Selvey gave evidence at the hearing. The applicant argued that Dr Selvey's evidence established a wider application of the Policy Directive PD 2005_162. Given that the Secretary was not empowered to impose the interim guidelines on private health facilities, we do not accept that Dr Selvey's evidence establishes a wider application of the directive. Dr Selvey's actions in not applying the interim guidelines, cannot amount to a refusal for the purpose of s 49J of the Anti-Discrimination Act. 1. The Tribunal came to the following key conclusions at [51] – [53]: 51 FBY has failed to demonstrate any power of the Secretary to require a private health facility to have polices which would have allowed FBY to work in the private health facility. 52 We are not satisfied that the Secretary was an authority which is "empowered to confer, renew or extend" a relevant "authorisation or a qualification" on FBY in private health facilities. The licensing regime did not allow for the interim guidelines to be applied by the Secretary in private health facilities. Similarly, even assuming the respondent did nothing to rescind Policy Directive 2005_162 in 2016, that does not make it a qualifying body for the purposes of s 49J of the Anti-Discrimination Act. Finally, there was no obligation on NSW Health to communicate to private health facilities, on the basis that they licensed them, that there was no scientific basis for the exclusion of health care workers properly managed HIV infection from EPPs. 53 Whether FBY was permitted to undertake EPP's in a private health facility was entirely a matter for the determination of the private health facility. This is regardless of any policy of the Secretary, even if any such policy was expressed to apply to private health facilities. 1. In support of these conclusions, the Tribunal cited Eagle Arts and Vocational College v State of NSW [2018] NSWCATAD 147. 2. After citing that decision, the Tribunal continued at [55] – [59] as follows: 55 Similarly, in these proceedings, the Secretary can only approve, refuse or cancel an application for a licence for a private health facility to operate, and licensing standards are confined. In our view, that (sic) fact that the Secretary has the power to grant a licence to a private health facility, does not bring it within the terms of s 49J of the Anti-Discrimination Act. The Secretary did not have the authority to authorise FBY to conduct EPPs in private health facilities. 56 The power to grant a private health facility a licence is an authority for the private health facility to operate. It does not confer any authorisation or qualification on any individual practitioner. While a medical practitioner may not be able to practice his or her profession at a particular private health facility, the licence granted to the private health facility does not impact upon the ability of FBY to practice his profession or engage in his occupation. Conclusion 57 The Secretary was not empowered to confer, renew or extend any relevant authorisation or qualification on FBY or a private health facility in the practice of FBY's profession or the engaging in of his occupation. 58 The approval, refusal and cancellation of a private health facilities license (sic) was not based on the private health facilities (sic) compliance with the interim guidelines of NSW Health and the Secretary could not have refused or cancelled a private health facilities registration for the non-compliance. 59 It cannot be said that Secretary is a complying (sic) authority for the purposes of FBY or a private health facility and the application can not proceed on the basis of s 49J of the Anti-Discrimination Act. Appellant's grounds of appeal 1. The Appellant filed an Amended Notice of Appeal. Ground 1: the Tribunal erred in finding the Respondent lacked power to deal with health care workers infected with HIV 1. According to the Appellant, the Respondent regulated the conduct of health care workers performing expose prone procedures (EPPs) in NSW irrespective of whether the individual worked in a public or private health facility. In this regard the Appellant relied upon the evidence of Dr Selvey who was a witness for the Respondent. According to the Appellant, the Respondent was empowered to confer authorisations on health practitioners infected with the blood borne virus (BBV): 1. to work in public or private health facilities; and 2. to perform EPPs. 1. Dr Selvey's evidence was to the effect that the Respondent was responsible for and received reports about health practitioners who were infected with blood borne viruses (BBV positive practitioners). 2. That evidence included the fact that the Respondent undertook assessments of the risks posed by BBV positive practitioners including assessing whether such BBV positive practitioners: 1. undertook EPPs; and 2. had a low viral load so as to make the risk of transmission of a BBV negligible. 1. The Appellant contended that the Respondent is an authority or body that, through the first paragraph of clause 3.3 of the Policy Directive, controls and facilitates the undertaking of specified duties – performing exposure prone procedures – by health care workers, and further imposed conditions – the monitoring of their blood borne virus status – on the performance of their work. 2. The Appellant referred to the evidence of Dr Selvey to the effect that the Respondent did manage all health care workers with blood borne viruses irrespective of whether they were employed in the public or private system. The Appellant then referred to the Tribunal's consideration of this aspect of his case at [46] – [49]. We have set out or summarised those paragraphs above. 3. According to the Appellant, the Tribunal disposed of the Appellant's argument on the basis of its finding that, as the Respondent lacked legal power to impose conditions or policies on a private health facility, it could not confer any authorisation or qualification on an individual health care worker. 4. That is also our understanding of the Tribunal's reasoning. The Tribunal acknowledged at [47] and [48] that the Policy Directive purported to apply to private hospitals, but because there was no "specific power" for the Secretary to impose policies on private health facilities, workers at private health facilities were not "covered" by the Policy Directive. 5. The Appellant submits that this reasoning is erroneous. The Appellant submits that he never contended that the source of the Respondent's power with respect to individual health care workers arose from or was connected to the powers the Secretary held under the Private Health Facilities Act 2007 (NSW). 6. The Appellant contends that the power arises at least from Part 4 of the Public Health Act 2010 (NSW). The objects of that Act in s 3(1) include to: (a) to promote, protect and improve public health, (b) to control the risks to public health, (c) to promote the control of infectious diseases, (d) to prevent the spread of infectious diseases, 1. The Appellant referred to s 61 and 62 of that legislation which allow any medical practitioner authorised by the Respondent to require any person with HIV to refrain from specified conduct if satisfied, on reasonable grounds, that the person is by reason of his or her conduct, a risk to public health. 2. The Appellant referred to the fact that the Policy Directive expressly referred to the Public Health Act 1991 (NSW) (now repealed but in force at the relevant time) in terms of managing a health care worker infected with HIV who refuses to follow, in effect, the terms of the Policy Directive. The powers under that legislation were said to be similar to the power available to Respondent in this case. 3. The Appellant contends that the Tribunal's conclusions on the issue were therefore wrong at law and should be set aside. The Tribunal in effect, did not properly consider the actual submissions being put by the Appellant. Ground 2: the Tribunal's failure to deal with the Appellant's contention that the Respondent had de facto power, by amending Policy Directive PD 2005 162 to permit health care workers with HIV to perform EPPs 1. The Appellant submits that he contended below that, as a matter of fact, the Policy Directive was simply adopted by private health facilities in New South Wales. The Appellant submits that if this is correct then it must follow that the Respondent, having the power to amend the Policy Directive, was de facto empowered to determine whether health care workers with HIV working in such private health facilities could (or could not) undertake EPPs. 2. According to the Appellant, this case depended on the Tribunal drawing an inference that private health facilities (or at least some of them) did in fact adopt the Policy Directive. The Appellant referred to a number of pieces of evidence that supported this inference, including: 1. the terms of the Policy Directive itself; 2. the terms of Dr Selvey's email, where Dr Selvey was relevantly at the time the Secretariat for the NSW Health Blood Borne Advisory Panel; 3. the failure of the Respondent to identify any private health facility that did allow health care workers with HIV to perform EPPs; 4. Dr Selvey's oral evidence that '…it was encouraged that private health facilities' adopt the Policy Directive; 5. NSW Health's position as the 'organisation responsible for managing the public health issue of transmission of blood borne viruses in exposure prone procedures' which gave it 'a powerful position in influencing private health facilities to adopt appropriate measures that simultaneously promoted public health, and protected the private health facilities from complaint'; and 6. the fact that the competence of the medical profession is ordinarily assessed by reference to the acceptable standard of practice in the Australian medical community, which standard the Policy Directive would play a direct part in setting, and the failure to comply with could expose a private health facility to medical malpractice suits. 1. The Appellant referred to the operative reasoning of the Tribunal at [46] – [49] and [51] – [53] which we have quoted above. The Appellant referred to those paragraphs to make the point that the Tribunal's focus was on whether the Respondent was as a matter of law entitled to impose upon a private health facility conditions or policies. 2. The Appellant contends that this was not the only basis on which he put his case. He had explicitly identified that the Respondent had, as a matter of fact, the de facto power to impose policies. The Appellant contends that s 49J of the AD Act is not limited to formal or express statutory power. If a group of agencies or organisations delegate their decision making power to a third party, such that it holds in practical terms the ability to decide whether and on what terms an individual is to be employed, then there is no reason why such de facto power cannot fall within the terms of section 49J of the AD Act. 3. The Appellant also submits that this argument was expressly made, and was based on substantive facts, but was not considered by the Tribunal. The Tribunal thereby erred at law. 4. In conclusion, the Appellant submits that the Decision should be set aside and the matter remitted for re-hearing according to law. Respondent's submissions Ground 1 1. The Respondent submits that the argument upon which this ground was based was never put to the Tribunal below. Otherwise, the Respondent submits that she has no relevant power under Part 4 of the Public Health Act 2010 (NSW). According to the Respondent, the reference to s 62 of the Public Health Act is misconceived. 2. Subsection 1 of that section states: (1) An authorised medical practitioner may make a public health order in respect of a person if satisfied, on reasonable grounds, that - (a) the person has a Category 4 or 51 condition and because of the way the (person behaves may, as a consequence of that condition, be a risk to public health, or (b) the person - (i) has been exposed to a contact order condition, and (ii) is at risk of developing the contact order condition, and (iii) because of the way the person behaves, may be a risk to public health. 1. According to the Respondent, the range of restrictions that may be imposed under a public health order made under s 62 are specified in ss 62(3) and (4). In effect, public health orders under s 62 are orders made in relation to a specific individual who has a specific disease or condition to mitigate a risk to public health that has or may arise from that person's behaviour. In respect of HIV, an order expires after three business days unless confirmed by the Tribunal: see ss 63, 64. 2. Further, according to the Respondent, 'authorised medical practitioner' is defined in s 60. It means the Chief Health Officer, or a registered medical practitioner authorised by the Respondent to exercise the functions of an authorised medical practitioner. It follows that the Respondent does not have the power to make public health orders under s 62. 3. The only power conferred on the Respondent under Part 4 of the Public Health Act, according to the Respondent, is found in s 61 which relevantly states: (1) This section applies if the Secretary-- (a) knows, or suspects on reasonable grounds, that a person has a Category 4 or 5 condition, and (b) considers that the person may, on that account, be a risk to public health, and (c) considers that the nature of the condition warrants medical examination or testing relating to the condition. (2) In these circumstances, the Secretary may, by notice in writing, direct the person concerned to undergo, within a specified period, a specified kind of medical examination or test relating to the Category 4 or 5 condition-- (a) by a registered medical practitioner in general practice, or (b) by a registered medical practitioner practising in a specified field. 1. According to the Respondent, that section confers a power on the Respondent in relation to any person, not merely medical practitioners. The power to require persons to undergo medical examination does not confer, renew or extend an authorisation or qualification of any kind and plainly does not fall within s 49J of the AD Act. 2. Contrary to the Appellant's submission, the onus was always on the Appellant to demonstrate that the Respondent had a relevant power described in s 49J. The Appellant failed to demonstrate the existence of any such relevant power. 3. The Respondent disputes the relevance of the Appellant's reliance upon the evidence given by Dr Selvey. The Respondent contends this reliance on the evidence is misconceived as the issue is the legal authority or power of the Respondent which cannot be made out by the evidence of a witness. Ground 2 1. The Respondent submits that the Tribunal at [47], [49], [51], [52], [53] and [55] rejected the proposition that a person 'is empowered' within the meaning of s 49J where they lack legal authority to confer, renew or extend an authorisation or qualification. The Respondent submits that the Tribunal was correct to reject that proposition. 2. According to the Respondent, the ordinary meaning of the phrase 'is empowered', the context provided by the section, and the section's purpose confirms that the 'authority or body' referred to in s 49J must have the legal power to confer, renew or extend a relevant authorisation or qualification. The vague and unclear notion of 'a de facto power' presupposes the existence of another authority or body which has the legal power to confer, renew or extend the relevant authorisation or qualification. It is not an authority or body that s 49J is concerned with, according to the Respondent. 3. The Respondent contends that the above construction of s 49J and the term 'is empowered' is supported by the authorities referred to by the Tribunal, being Eagle Arts and Vocational College v State of NSW [2018] NSWCATAD 147 at [21] and Moavenian v Transport for NSW [2021] NSWCATAD 77 at [29]. 4. For completeness, the Respondent submits that whilst not relevant to the asserted question of law raised by ground 2, it should be pointed out that Policy Directive PD 2005_162 was a recommendation to the licensees of private health facilities. It was entirely up to the licensees of private health facilities to determine and implement policies at that particular private health facility, on the advice of the facility's medical advisory committee: see Private Health Facilities Act 2007 (NSW), s 39(1), (2). 5. The Respondent submits that the fact that private health facilities might have adopted the recommendation in the Policy Directive was a decision for the private health facilities. It does not mean that the Respondent was empowered to confer, renew or extend an authorisation or qualification as specified in s 49J. Consideration Introduction 1. This appeal raises the following issues: 1. Did the Appellant put to the Tribunal that the Respondent had de facto power to grant approval to health care workers with HIV to perform EPPs (the Approval)? 2. Does the phrase 'is empowered' in s 49J of the AD Act require the 'authority or body' to have an express legal right or power to grant the Approval? 3. Did the Tribunal fail to adequately address that submission of the Appellant and the evidence on which it was based? 4. If the Tribunal failed to do so, does that failure amount to an error of law? 5. If so, what orders should the Tribunal make? Did the Appellant put to the Tribunal that the Respondent had de facto power to grant approval to health care workers with HIV to perform EPPs? 1. For present purposes the most relevant statement of one aspect of the cases ultimately put by the Appellant below can be found in the Appellant's outline of submissions on preliminary issue following the hearing dated 24 May 2022. 2. The Appellant there referred to the extended definitions in s 4 of the words or phrases in s 49J. In reliance upon those extended definitions, the Appellant put his case as including the proposition that the Respondent at the relevant time is an authority empowered to grant an approval that facilitates the practice of a profession, namely an approval of health care workers with a blood borne virus to perform Exposure Prone Procedures, subject to conditions concerning their treatment and monitoring of their viral load (the Approval). 3. As we understand it, the Appellant's case was that as a matter of policy or practice, private health care facilities followed Policy Directives issued by the Respondent. Accordingly, the Appellant contends, that at the relevant time, being between May and December 2018, the Respondent could have granted the Approval for those in the Appellant's position, to perform Exposure Prone Procedures in private health facilities, such as in the form of Policy Directive PD 2005_162 or in the form of the Interim Guidelines which as a matter of policy or practice one or more private health facilities in NSW would have followed, when otherwise such health facilities were refusing to allow the Appellant to perform such procedures. 4. Accordingly, the Appellant contends that this meant the Respondent had de facto power to grant the Approval that facilitates the practice of the profession of neurosurgery. Therefore, the Appellant contends that the Respondent acted unlawfully and contrary to s 49J in refusing or failing to grant the Approval to the Appellant on the ground of his HIV status. 5. As the Appellant put it at paragraph 41 of his submissions of May 2022: Had the Respondent extended the interim guidelines so as to apply to health care workers irrespective of where they worked – in the same way as clause 3.3 of the Policy Directive applied – it would have facilitated the practice of the applicant's profession. By failing to do so, and by leaving clause 3.3 untouched in the Policy Directive, the Respondent discriminated against the applicant within the terms of s 49J. 1. This case as put was not that the Respondent was empowered by a provision in legislation to grant the Approval or authorisation, nor was it said that the relevant approval or power was over private health facilities under legislation or other legal means. Rather, the case as put was that the relevant Approval was in respect of health care workers directly. Does the phrase 'is empowered' in s 49J of the AD Act require the 'authority or body' to have an express legal right or power to grant the Approval? 1. The issue for consideration is whether or not the phrase 'is empowered' is confined to some legal right or power to confer or grant the relevant authorisation, approval or qualification. 2. The process of statutory construction begins with the consideration of the text: see Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 at [39]. This requires consideration of the ordinary and grammatical meaning of the words by reference to all the provisions of the statute and its purpose: see SZTAL v Minister of Immigration and Border Protection (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ; see also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]. 3. Turning to the ordinary and grammatical meaning of the word 'empower', the Macquarie Online Dictionary includes as part of the definition of 'empower' as a verb, 'to enable or permit'. The Oxford English Online Dictionary, includes as part of its definition of the word 'empower', 'to give (a person) the means, ability, or strength to do something; to enable'. 4. The Macquarie Online Dictionary includes as part of the definition of 'approval' as a noun, 'the act of approving, approbation' and 'sanction; official permission'. Similarly, the Oxford English Online Dictionary defines 'approval' as 'the action of approving; sanctioning, approbation'. 5. The dictionary definitions support the conclusion that s 49J encompasses the situation where, as a matter of 'de facto power', policy or practice, the grant of an approval by an 'authority or body' enables, or provides the means or ability, for a health care worker to perform exposure prone procedures that facilitates the practice of that health care worker's profession. 6. In Waddington v Dandenong Magistrates' Court [2014] VSCA 12, the Victorian Court of Appeal was interpreting the phrase "empowered by law" in Section 100(6) of the Magistrates' Court Act 1989 (Vic). Under that provision, A party to a civil proceeding (including an arbitration) may appear — (a) personally; or (b) by a legal practitioner or other person empowered by law to appear for the party; or 1. Nettle JA (Beach JA and McMillan AJA agreeing) held at [6] that: Although s 100(6) is permissive in that it affords a party a right to be represented by a layperson in specified circumstances, it is also proscriptive inasmuch as it limits the range of laypersons on whom it confers that right of audience ─ to laypersons empowered by law to appear for a party. 1. Where the phrase "empowered by law" is used, there can be no doubt that the power must be derived from a written or unwritten "law". The words "by law" are not used in s 49J. That fact also supports the broader meaning of the term contended by the Appellant. 2. A broad construction of the term 'is empowered' is consistent with the long title of the AD Act: An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons. 1. Further, because the AD Act is remedial and beneficial, 'empowered' in s 49J must be given a liberal rather than a constrained interpretation: Khoury v Government Insurance Office of NSW (1984) 165 CLR 622 at 638; Dionysatos v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281 at [12]; Waters v Public Transport Corporation (1991) 173 CLR 341 at 359 2. In our view, the phrase 'is empowered' in s 49J of the AD Act should not be confined to cases where the relevant authority or body has statutory or other express legal power to grant the approval in question. Did the Tribunal fail to adequately address that submission of the Appellant and the evidence on which it was based? 1. The Tribunal decided that the phrase "is empowered" in s 49J requires the 'authority or body' to have an express legal right or power to grant the Approval. That is apparent from the Tribunal's decision at [46]-[47]: 46. The applicant also submits that Policy Directive PD 2005_162 limited the authority of all health care workers in New South Wales to perform exposure prone procedures. The applicant submits that clause 3.3 of the Policy Directive applied to all health care workers in New South Wales, regardless of the type of facility in which they were working. 47. In our view, and consistent with the Private Health Facilities Act and Regulation, the Policy Directive PD 2005_162 could only be binding only on NSW Health facilities. Even though it states on the front cover that that the directive applies to Private Hospitals, there was no specific power for the Secretary to impose policies on private health facilities and the Secretary could not be a condition on the licences of private health facilities to that effect. 1. At [51], the Tribunal concluded that: Whether FBY was permitted to undertake EPP's in a private health facility was entirely a matter for the determination of the private health facility. This is regardless of any policy of the Secretary, even if any such policy was expressed to apply to private health facilities. 1. In our view, the Tribunal was correct to conclude that there is no express legal right or legislative power for the Respondent to grant the Approval. The Tribunal was also correct to conclude that under the legislative framework outlined in the Tribunal's decision, each private health facility may determine whether a person can undertake EPPs in that private health facility. 2. However, by focusing its enquiry upon whether or not the Respondent had legislative power to confer an authorisation upon health care workers at private health facilities, the Tribunal did not address the entirety of the Appellant's case as put below. In our view, it is clear that the case as described and summarised by us above and put by the Appellant below, was not dealt with by the Tribunal. Does that failure amount to an error of law? 1. The failure to deal with relevant and available contentions of a party in litigation will amount to an error of law. In Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [31] – [34], the Appeal Panel summarised the relevant authorities on this issue: [31] In Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority 24 NSWLR 156 at 186 Handley JA stated: The duty of a judicial officer to hear and determine a claim made in judicial proceedings conducted before that officer is also an incident of the judicial process. Since breaches of the duty to give proper reasons and to observe procedural fairness involved errors of law, there seems every reason to hold that a breach of the duty to hear and determine a claim made in judicial proceedings also gives rise to such an error. [32] In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Gaudron J in context of the Migration Act (Cth) discussed a constructive failure to exercise jurisdiction stating: It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act. [33] In Fox v Australian Industrial Relations Commission [2007] FCAFC 150 Marshall and Tracey JJ stated at paragraph 38: In the present case the complaint is not that the full bench ignored the evidence but rather that it did not deal with an important ground raised by Mr Fox. This case is more akin to one where there is a failure by a Tribunal to deal with necessary issues. Such a failure constitutes a jurisdictional error. [34] In Khan v Kang (supra) the Appeal Panel found that the Tribunal had made an error of law by failing to consider a claim made by Mr Khan. The Appeal Panel observed at [28] as follows: It is possible to characterise what occurred either as a failure to give reasons for the Tribunal's decision or a failure to exercise the jurisdiction conferred on the Tribunal and invoked by the appellant in relation to this claim in respect of excess timber - see Waterways Authority v Fitzgibbon [2005] HCA 57 at [129] - [130] and Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [42]. Whichever way it should be characterised, the Tribunal's failure to consider such a claim at all in its Reasons for Decision amounted to an error of law by the Tribunal below. 1. A failure to consider a "substantial, clearly articulated argument relying upon established facts" may amount to a failure to accord procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; 77 ALJR 1088 (Dranichnikov) at [24]. It might also amount to a constructive failure to exercise jurisdiction: see for example, Dranichnikov at [25]; Ali v AAI Limited [2016] NSWCA 110 at [66]. 2. However, as Basten JA pointed out in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [22] there are important limits to the principles described in Dranichnikov: [N]either Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [35]. 1. In addressing whether or not there has been a failure to respond to a substantial argument made by a party, the concern of the law in this area is to avoid "practical injustice": Rodger v De Gelder [2015] NSWCA 2011 at [93]; AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [95]. 2. It follows from the reasons we have given above, that the Tribunal erred in not addressing the case advanced by the Appellant. 3. Accordingly, we uphold this aspect of the appeal and will allow the appeal. What orders should the Tribunal make? Under s 80(3) of the NCAT Act: The Appeal Panel may— (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. Pursuant to s 81(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the Appeal Panel upon setting aside a decision under appeal may either substitute for the decision under appeal another decision, or it may order that the case be reconsidered by the Tribunal, either with or without further evidence in accordance with the directions of the Appeal Panel. 2. The Appellant submitted that if the appeal was allowed, the case should be remitted to the Tribunal to be reconsidered according to the law. The Respondent made no submissions on this matter. 3. In our view, the just, quick and cheap way to deal with the matter is for us to set aside the orders of the Tribunal and deal with the remaining issue (whether, as a question of fact, the Respondent had de facto power to grant the relevant Approval) by way of a new hearing. 4. We note that the evidence before the Tribunal below was extensive. It included several hundreds of pages of documents and an extensive affidavit by Dr Selvey, filed by the Respondent on 15 February 2022. Dr Selvey was cross-examined. This evidence is before us on appeal. There is no basis for admitting fresh evidence. The Appeal Panel will determine the matter on the basis of the transcript of the evidence and the submissions of the parties. 5. Accordingly, we will make directions for the parties to file submissions on the question as to whether or not the Respondent had de facto power to grant the relevant Approval within the meaning of s 49J of the AD Act. Disposition 1. The orders of the Appeal Panel are: 1. Appeal allowed. 2. Set aside the orders of the Tribunal of 4 April 2023. 3. The parties are to file submissions on the question as to whether or not the Respondent at the relevant time had de facto power to grant the approval of health care workers with a blood borne virus to perform exposure prone procedures within the meaning of s 49J of the Anti-Discrimination Act 1977 (NSW) in accordance with the following timetable: 4. the Appellant is to file submissions within 14 days of the date of this decision; 5. the Respondent is to file any submissions in response within 14 days thereafter; 6. the Appellant is to file any submissions in reply within seven days thereafter; 7. such submissions are to include whether or not the hearing on this question should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 October 2023