Callan v Medical Board of Australia

1. [1]

   HIS HONOUR: The plaintiffs seek judicial review of a decision of the Medical Board of Australia (Medical Board) to issue two guidelines for registered medical practitioners. Both guidelines were published on 1 July 2023. The first is titled “Guidelines for registered medical practitioners who perform cosmetic surgery and procedures” (2023 Cosmetic Surgery Guidelines). The second is titled “Guidelines for registered medical practitioners who advertise cosmetic surgery” (2023 Cosmetic Advertising Guidelines) (together, the 2023 Guidelines).

2. [2]

   In brief, the plaintiffs claim that the 2023 Guidelines are ultra vires the Medical Board’s powers and functions under the Health Practitioner Regulation National Law (National Law). The plaintiffs also contend in ground 1 of their summons filed on 29 September 2023 (which is said to be out of time) that the 2023 Guidelines were issued for an improper purpose. Ground 2 of the summons claims that the Medical Board considered an irrelevant consideration and/or failed to take into account a relevant consideration, being some differences between the versions of the National Law in other jurisdictions and the Health Practitioner Regulation National Law (NSW) (NSW National Law).

3. [3]

   For the following reasons, time should be extended under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) for the filing of the summons, but the summons will be dismissed, with costs.

Background facts summarised

1. [4]

   The 2023 Guidelines were prepared and published against the background of a recommendation made in a report dated August 2022 titled “Independent review of the regulation of medical practitioners who perform cosmetic surgery”. I shall refer to the report as the Brown Report, in recognition of the fact that the independent review was conducted by Mr Andrew Brown, a former Queensland health ombudsman.

2. [5]

   The Brown Report recommended that the Australian Health Practitioner Regulation Agency (Ahpra) and the Medical Board revise the existing advertising guidelines and/or “produce additional material specifically about cosmetic surgery to clarify the standards expected of practitioners” (recommendation 11). There was a further recommendation that the Medical Board review, carry out consultations, and update its existing guidelines for medical practitioners who perform cosmetic medical and surgical procedures to clarify expectations (recommendation 13). The Brown Report also recommended that the Medical Board strengthen the extant Cosmetic Guidelines by reviewing where the word “should” is used and consider using the word “must” instead to make expectations clearer (recommendation 14).

3. [6]

   On 1 September 2022, the Medical Board issued a press release announcing that it accepted all of the Brown Report recommendations, including those summarised above. The Medical Board then commenced a series of consultations regarding the proposed revised guidelines between September 2022 and January 2023.

4. [7]

   The Medical Board met on 22 February 2023. It discussed and approved draft revised guidelines and authorised the Chair to finalise them.

5. [8]

   On 3 April 2023, the Medical Board issued a press release, which announced that doctors “who perform cosmetic surgery have three months to clean up their advertising in line with tougher requirements and get familiar with new practice guidelines issued today” by the Medical Board and Ahpra. What were described as “advance copies” of the 2023 Guidelines were published that day on the Medical Board’s website. Those versions were removed from the website on 1 July 2023. The final form of the 2023 Guidelines were published on that same day, which is when they also took effect.

6. [9]

   No issue is taken regarding the plaintiffs’ standing. Both plaintiffs filed affidavits in which each deposed they had changed their medical practices to their own financial detriment and that of their patients, based upon the 2023 Guidelines.

7. [10]

   There is an issue as to whether an extension of time is required and, if so, whether it should be granted. I will return to that topic below.

The legislative regime summarised

1. [11]

   In large part, the complexity of the legislative regime stems from its origins as the National Law, which has not uniformly been adopted in each jurisdiction. I shall briefly outline the regime.

2. [12]

   The genesis of the national scheme for health professions is the Intergovernmental Agreement for a National Registration and Accreditation Scheme for the Health Professions, which was agreed in March 2008. In brief, the national scheme seeks to ensure that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered. Health practitioners have a single registration which is recognised anywhere in Australia. There are uniform standards for the registration of both health practitioners and health education providers.

3. [13]

   The National Law establishes National Health Practitioner Boards (National Boards) for each registered health profession (of which currently there are 16), including the medical profession of which both plaintiffs are registered medical practitioners. The National Law also establishes a framework for National Boards to approve registration standards, codes and guidelines, as well as other matters. Section 31 establishes the National Boards, one of which is the Medical Board, which has responsibility for the medical profession.

4. [14]

   The somewhat metaphysical nature of the cooperative scheme is reflected in the fact that the Medical Board was established eight times, once by the law of each participating jurisdiction. The metaphysicality is further highlighted by the fact that s 7 of the National Law states that the Parliament of each participating jurisdiction intends the entity established within that jurisdiction to be a single national entity. Currently, there are 15 National Boards established for the 16 registered health professions.

5. [15]

   The Medical Board is entitled to exercise its functions with respect to single or multiple jurisdictions simultaneously (s 3).

6. [16]

   Queensland is the host jurisdiction for the National Law, which is set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (Queensland Act) (see s 4 of that Act). It is necessary, though somewhat confusing, to interpolate here that Queensland separately has adopted the Health Practitioner Regulation National Law (Qld) (Queensland National Law) (which does not itself wholly implement the Schedule to the Queensland Act). On 1 July 2010, NSW adopted the Schedule, with amendments, as a law of NSW. This was achieved by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) (NSW Adoption Act). Initially, if the Schedule was amended by Queensland legislation, the amendment automatically became the law of NSW in accordance with s 4(a) of the NSW Adoption Act.

7. [17]

   This changed in 2022. By the Health Legislation (Miscellaneous) Amendment Act) 2022 (NSW), any amendments to the Schedule in the Queensland Act no longer take effect as law in NSW unless a regulation is made in NSW adopting, with or without modification, those amendments. This may be described as a Henry VIII clause because it allows primary legislation to be modified by regulation.

8. [18]

   In the second reading speech to the Bill which introduced the 2022 amendments, the then Minister for Health explained that the automatic adoption by NSW of changes to the Queensland law “lacks parliamentary oversight and can impact on the distinct nature of the complaints process in this State” (Legislative Assembly, 23 February 2022, p 6959). For convenience, I will refer to the relevant legislation in NSW as the NSW National Law.

9. [19]

   In Victoria, the Schedule was adopted without modification (see Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic)). Similar legislation was enacted in each other State and Territory, apart from Western Australia. That State has not directly adopted the Schedule, but has instead enacted corresponding legislation in the form of the Health Practitioner Regulation National Law (WA) Act 2010 (WA), the Schedule of which is the Health Practitioner Regulation National Law (Western Australia) (WA National Law).

10. [20]

    Under the current arrangements, any amendments to the Schedule to the Queensland Act automatically apply to Victoria, South Australia, Tasmania and the Territories. That is not the case, however, in NSW or Western Australia.

11. [21]

    In sum, the National Law is intended to be a national scheme, with Queensland as the host jurisdiction. But the scheme comprises four versions of the National Law, namely the Schedule (applicable in Victoria, Tasmania, South Australia and the Territories); the NSW National Law; the Queensland National Law (where the Schedule does not take full effect as a law of Queensland because its adoption is modified by Pt 4 of the Queensland Act); and the WA National Law.

12. [22]

    In addition, NSW did not adopt all parts of the Schedule. It has its own co-regulatory arrangement in substitution for the health, performance and conduct process under Pt 8 of the National Law. In NSW, the Health Care Complaints Commission assesses and manages complaints about registered health practitioners in conjunction with the relevant health professional council.

13. [23]

    I will now summarise the functions and powers of the Medical Board (noting that it is a National Board), with reference to the NSW National Law.

14. [24]

    The functions of the Medical Board (and other National Boards) are set out in s 35(1), which relevantly provides (noting in particular s 35(1)(c)):

15. [25]

    The distinction between the functions of registration and developing or approving standards, codes or guidelines for the health profession is to be noted.

16. [26]

    Division 3 of Pt 5 provides for registration standards and codes and guidelines. A National Board is obliged under s 38 to develop and recommend to the Ministerial Council one or more registration standards about various matters concerning applications for registration and ongoing requirements for registered health practitioners.

17. [27]

    Section 39 is important. It provides for the making of codes and guidelines (noting that neither of those terms is defined):

18. [28]

    Section 40 provides that, if a National Board develops a registration standard or a code or guideline, it must ensure that there is wide-ranging consultation about its content.

19. [29]

    Section 41 is another important provision. It provides for how registration standards, codes or guidelines may be used in disciplinary proceedings:

20. [30]

    Subdivision 4 of Div 11 in Pt 7 deals with advertising. Section 133(1) makes it an offence for a person to advertise a regulated health service in various specified ways. Subsection 133(3) provides:

21. [31]

    It should be interpolated here that, despite differences across the jurisdictions, the above-cited provisions are identical throughout the States and Territories, which is important to recognise for the purposes of considering ground 1 (discussed further below). There are, however, differences in some jurisdictions regarding the guiding principles, to which I now turn.

2022 Amendments

1. [32]

   It is necessary now to descend into perhaps even more complex detail by describing the effect of amendments in 2022 which are relevant to ground 2 of the summons.

2. [33]

   Prior to the amendments in 2022, the NSW National Law contained the following provision:

3. [34]

   This provision applied to the co-regulatory arrangements in place in NSW in substitution for those in Pt 8 of the National Law.

4. [35]

   The Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 (Qld) (the Queensland Amendment Act), which commenced on 21 October 2022, inserted s 3A into the Schedule and which was thus adopted in the Queensland National Law and also picked up in some of the other participating jurisdictions (i.e., Victoria, Tasmania, South Australia and the Territories) (but not by NSW and WA), to now read (relevantly):

5. [36]

   The Explanatory Note to the Queensland Amendment Act states (emphasis added):

6. [37]

   New South Wales elected not to adopt these changes. The NSW version of s 3A was introduced by way of a Henry VIII provision in the form of the Health Practitioner Regulation (Adoption of National Law) Regulation 2022 (NSW), (the NSW Amending Regulation). This was published in the Gazette on 11 November 2022, but was expressed to commence on the same date as the Queensland provisions (i.e., 21 October 2022).

7. [38]

   The NSW Amending Regulation renumbered the previous s 3A as s 3B (without otherwise altering the text), and inserted a new s 3A as follows:

8. [39]

   Section 4 provides that an entity which has functions under the NSW National Law “is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A”.

9. [40]

   The Explanatory Note to the NSW Amending Regulation simply states:

Consideration and disposition

1. [41]

   The plaintiffs require an extension of time if their judicial review summons was filed more than three months after the date of the impugned decision. There were three possible dates on which the impugned decision might have been made: 22 February 2023 when the decision was made to adopt the 2023 Guidelines; 3 April 2023 when an advance copy of the 2023 Guidelines was published online; or 1 July 2023 when the 2023 Guidelines came into effect. The Medical Board accepted that the earliest time at which the plaintiffs could reasonably have become aware of its decision to approve the 2023 Guidelines was when the Medical Board announced on 3 April 2023 its intention to make new guidelines.

2. [42]

   In contrast, the plaintiffs claim that time should run from the date on which the 2023 Guidelines commenced, namely 1 July 2023.

3. [43]

   The Medical Board opposed an extension of time, pointing to the lack of any evidence explaining the delay. It also claimed that it was likely that medical practitioners will have acted in accordance with the 2023 Guidelines and would, therefore, be prejudiced if the judicial review application was permitted out of time.

4. [44]

   As the plaintiffs acknowledged in their written submissions, the real object of their challenge relates not only to the 2023 Guidelines themselves (which commenced on 1 July 2023), but the anterior decision of the Medical Board to publish the 2023 Guidelines, which may also need to be challenged. They submitted, however, that the date of the Medical Board’s decision to approve the 2023 Guidelines was not clear. This is because, although the Medical Board claimed that the decision to issue the 2023 Guidelines was made on 22 February 2023, an advance copy of the guidelines was not published until 3 April 2023.

5. [45]

   In any event, the plaintiffs advanced the following submissions in support of time being extended:

6. [46]

   The impugned decision date is, most likely, 3 April 2023 (to the extent that the date of the decision is capable of being precisely identified). This is the date on which the decision to issue the 2023 Guidelines became publicly known. The plaintiffs’ submissions on why an extension of time should be granted should be accepted. The case raises important issues of public interest and any delay in bringing the challenge is minimal. The Medical Board’s contention that time should not be extended because of possible prejudice to third parties is somewhat ironic. It does not sit comfortably with its primary position that the 2023 Guidelines are not binding.

7. [47]

   Time should be extended to enable the judicial review challenge to be determined.

8. [48]

   There are two aspects to ground 1. The first is whether the 2023 Guidelines are ultra vires the National Law in its entirety, which turns on whether, viewed objectively, they fall within the true nature and purpose of the Law (see Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [156] per Leeming JA, Meagher JA agreeing). The second aspect of ground 1 is whether the 2023 Guidelines were issued for an improper or unauthorised purpose.

9. [49]

   The plaintiffs identified the relevant questions here as:

10. [50]

    As noted, one of the functions of a National Board is to develop and approve “standards, codes and guidelines” for the health profession, including the approval of accreditation standards, the development of registration standards, and the “development and approval of codes and guidelines that provide guidance to health practitioners registered in the profession”.

11. [51]

    As noted, the direct source of the Medical Board’s power to issue guidelines is s 39 of the National Law (see at [27] above). Neither “code” nor “guideline” are defined terms. This is in contrast with the concept of “registration standards” which a National Board must develop in accordance with the duty imposed by s 38. “Registration standard” is defined in s 5 to mean a registration standard developed by a National Board under s 38. In contrast with codes or guidelines, which may be developed and approved by a National Board, registration standards about inter alia the registration, or renewal of registration, of health professionals must be approved by the Ministerial Council (see s 12). This indicates that they may have a different and higher status than codes or guidelines.

12. [52]

    Although an approved registration standard, as well as a code or guideline approved by a National Board, is admissible in proceedings as evidence of what constitutes appropriate professional conduct or practice for the health profession (see s 41), there are other provisions of the National Law which suggest that registration standards have a mandatory effect (see, e.g., ss 52(1)(b) and (e); 65(1)(e) and 82(1)(c)(i)(E)). It is not necessary to express a final view but these provisions strongly indicate that registration standards have a higher status and effect than a code or a guideline.

13. [53]

    I accept that the word “guidelines” ought to be given its ordinary meaning unless a contrary intention is manifest in the legislation. The plaintiffs drew attention to Hill J’s leading judgment in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287. The National Health Act 1953 (Cth) created a scheme for the approval of pharmacists to provide pharmaceutical benefits from nominated premises. The decision whether or not to grant such an approval was conferred upon the Secretary of the Health Department. Approval was to be given only where the Pharmacy Restructuring Authority recommended that this occur. The legislation required the Minister to determine guidelines, which the Authority was obliged to comply with when making a recommendation.

14. [54]

    In Smoker, the relevant guideline was expressed in terms which directed the Authority not to recommend approval of a pharmacist in respect of nominated pharmaceutical premises located within 5 kilometres of an already approved premises. The question was whether this instrument was authorised by the statutory provision which required the Minister to determine “guidelines”. Notwithstanding that the instrument used mandatory language in directing the Authority not to recommend approval in the circumstances described above, the guideline was held to be valid.

15. [55]

    Hill J identified an “inherent tension” between the concept of a “guideline” on the one hand and a mandatory requirement that the “guidelines” be complied with, on the other hand. His Honour referred to Norbis v Norbis (1986) 161 CLR 513 at 520; [1986] HCA 17 per Mason and Deane JJ, who described the term “guidelines” as denoting “rules or standards which are not binding and may be relaxed when it is expedient to do so in order to do justice in the particular case”, when used in the bureaucratic and administrative world. Hill J commented at 299 that a legislative command that an agency “must comply with the relevant guideline” suggested that the guidelines were mandatory.

16. [56]

    The plaintiffs in the present proceeding relied upon this approach in submitting that the frequent use of the word “must” in the 2023 Guidelines indicated that they are rules and not guidelines.

17. [57]

    In Smoker, Hill J was strongly influenced by the fact that there was an agreement between the Pharmacy Guild of Australia and the responsible Minister which preceded the creation of the relevant legislative scheme. That agreement made explicit reference to an approval being refused to a pharmacy located within 5 kilometres of existing approved pharmaceutical premises. The guidelines were held to be valid despite their mandatory effect and even though Hill J observed that they should more properly be described as rules which operated to circumscribe the Authority’s discretion.

18. [58]

    I do not view Smoker as assisting the plaintiffs’ case. It turned very much on differently worded legislation and different circumstances. But Smoker does highlight the significance of the distinction between guidelines and rules. That distinction should be accepted but the critical issue is whether on its proper construction an impugned instrument constitutes guidelines or rules.

19. [59]

    The plaintiffs here submitted that s 41 of the National Law is relevant in determining the scope of the power to develop and approve guidelines under s 39. As noted, s 41 provides that an approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in disciplinary proceedings as evidence of what constitutes appropriate professional conduct or practice for the health profession. Thus, in determining whether a practitioner’s practice and/or conduct is “unprofessional conduct” or “professional misconduct” for the purpose of the National Law, reference is to be made to whether the conduct is “substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience” (see the definition in s 5) (the position is broadly the same under NSW’s co-regulatory arrangements). The plaintiffs submitted that a distinction had to be drawn between standards that had to be complied with (being the standards which arise in disciplinary proceedings) and guidelines which are evidence of appropriate practice which, in the Medical Board’s view, would meet those standards. Thus, having regard to s 41, a “guideline” merely provides “guidance” to practitioners regarding the standards of professional conduct.

20. [60]

    The plaintiffs also noted that the only code approved by the Medical Board is one titled “Good medical practice: a code of conduct for doctors in Australia” (the Code). The Code states that it does not set new standards but rather consolidates standards that have long been at the core of medical practice. The plaintiffs submitted that even though the Code sometimes uses mandatory language, that merely reflects what is already accepted in the profession as being mandatory.

21. [61]

    The plaintiffs submitted that the Medical Board’s guideline-making power should not be construed as empowering it to set the standard of appropriate practice because the Board does not have a power to give commands or prohibitions with which medical practitioners have to comply. Rather, the power to make guidelines under s 39 is a power to provide guidance or suggestions as to how health practitioners can best comply with already-accepted and expected standards of practice.

22. [62]

    The plaintiffs contended that the following features of the 2023 Guidelines demonstrate that they are rules and therefore beyond the functions or powers stipulated in ss 35 and 39 of the National Law:

23. [63]

    When these selective statements are read in isolation or even cumulatively, they do appear to provide some support for the plaintiffs’ claim that the term “guidelines” is a misnomer, and the two publications are in fact mandatory rules. For the following reasons, however, I do not accept the plaintiffs’ ultra vires claim. First, as was common ground, an objective test applies in determining whether the 2023 Guidelines are properly characterised as guidelines or rules. In those circumstances, no significance attaches to the fact that, ultimately, the Medical Board did not seek to tender a copy of its statement of reasons which contained subjective statements as to the proper characterisation of the 2023 Guidelines.

24. [64]

    That is not to say that the purposes for which the 2023 Guidelines were made are irrelevant to the ultra vires claim. The purposes for which the Medical Board can develop or approve guidelines for the health profession are set out in s 35(1)(c) (see at [24] above). They include making guidelines which provide guidance to registered health practitioners. This is reinforced by the terms of s 39(a). But guidelines may also be developed and approved by the Medical Board about matters relevant to the exercise of its functions (see s 39(b)). It is notable that the power conferred by s 39(b) is not limited to the provision of “guidance”, in contrast with the position under s 39(a). I will defer discussion of the question of the purpose or purposes for which the 2023 Guidelines were developed and approved to the consideration of the second part of ground 1 under the heading “Improper or unauthorised purpose claim”.

25. [65]

    Secondly, context is another relevant matter. The following aspects of the 2023 Guidelines are relevant in providing context for the task of characterisation (many of these aspects are also relevant to an assessment of the text of both those publications, noting additionally that each publication must be read as a whole).

26. [66]

    Viewed as a whole and, importantly, in the context of all the contents of the publication, these statements fall short of indicating that the 2023 Cosmetic Surgery Guidelines are binding on medical practitioners. On the contrary, they generally serve to underline the fact that the publication provides guidance to such practitioners. This is particularly evident in the last statement referred to immediately above, where it is made clear that if particular conduct varies significantly from any part of the guidelines, the medical practitioner is on notice that they should be prepared to explain and justify their position and actions. That is not the language of a binding direction as it contemplates that a medical practitioner may be able to explain and justify their conduct even if it is not compliant with any part of the Guidelines. This undermines the significance which the plaintiffs attach to mandatory language being directed to matters which are already seen by the profession to be mandatory, as opposed to other matters.

27. [67]

    Similar statements are contained in these Guidelines:

28. [68]

    I consider that these statements reinforce the fact that, notwithstanding that some mandatory language is used in some parts of the Guidelines (including the term “must” which, it might be added, was also used in earlier guidelines), the 2023 Cosmetic Surgery Guidelines provide guidance and are not binding on medical practitioners as would be the case with rules. It is important to reiterate that each of the Guidelines which constitute the 2023 Guidelines needs to be read as a whole.

29. [69]

    Thirdly, as an aspect of context, it is relevant to note that the March 2022 consultation paper for the review culminating in the Brown Report expressly acknowledged that “guidelines do not act as legally enforceable regulations”.

30. [70]

    Fourthly, I accept the Medical Board’s submission that, where an instrument made pursuant to a statutory power is open to two constructions (one of which would be within the empowering provision and the other ultra vires), the first construction should be preferred and adopted (see Environment Protection Authority v Condon as Liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 at [64] per Leeming JA (Bathurst CJ and McColl JA agreeing)).

31. [71]

    Fifthly, the plaintiffs cited Lynch v Minister for Human Services and Health (1995) 61 FCR 515 in support of the contention that if a power, properly construed, does not extend to issuing mandatory rules, then mandatory language may be ultra vires. I reject that contention. Lynch is distinguishable. It involved the Minister promulgating principles pursuant to a statutory power which conferred a decision-making role upon an inspection agency.

32. [72]

    The critical feature in Lynch was that the relevant statute did not permit the conferral of a decision-making power upon a body such as an inspection agency. The Minister was empowered there to determine principles to be implied in the exercise of powers concerning ministerial approval of premises as an accredited pathology laboratory (s 23DNA of the Health Insurance Act 1973 (Cth)). The Minister was obliged under s 23DN(3) of that Act to apply any such principles as were in force at that time in exercising the approval power. The ministerial principle in cl 4.2 provided that premises shall not be approved as an accredited pathology laboratory unless the applicant has provided evidence that the premises have been inspected by an agency which has reported that the premises comply with the relevant standards. The National Association of Testing Authorities was approved as an inspection agency and, having inspected the applicant’s premises and operations, reported favourably otherwise than to say that it was not satisfied that certain aspects of the operations complied with relevant standards.

33. [73]

    Davies and Lehane JJ held that the Minister was not empowered by s 23DNA of the Act to confer a decision-making role upon an inspection agency. Their Honours described s 23DNA(1) as providing for the promulgation of principles to be applied in exercising the Minister’s approval power, but not for the conferral of a decision-making power upon another body. That is far removed from the circumstances of the present case.

34. [74]

    Sixthly, I do not accept the plaintiffs’ contention that the Medical Board’s power under s 39 to develop and approve guidelines prevents it from seeking to influence medical practice by making clear its expectations of registered medical practitioners. No such prohibition is contained in the National Law. The contention is also inconsistent with the plaintiffs’ acceptance that the Medical Board has the power to make “suggestions for better practice”, is entitled to express an expert opinion as to what appropriate professional conduct may entail, and may give “guidance and advice” to registered medical practitioners.

35. [75]

    Moreover, the Medical Board’s power to approve guidelines which “influence” medical practice by making its expectations clear is consistent with s 3A(2)(a1) of the NSW National Law (and s 3A(2)(aa)(i) and (ii) of the Schedule to the Queensland Act, as now in force in Queensland, Victoria, Tasmania, South Australia and the Territories). This identifies one of the guiding principles of the national registration and accreditation scheme as being that the scheme ensure the development of a culturally safe and respectful health workforce that is responsive to Aboriginal and Torres Strait Islander Peoples and their health, and contributes to the elimination of racism in the provision of health services.

36. [76]

    Another aspect of context is the fact that there is an explicit example given in s 3A(2)(c) of the NSW National Law and the Schedule which states that codes and guidelines developed and approved by National Boards under s 39 “may provide guidance to health practitioners about the provision of culturally safe and respectful health care”. The same may be said regarding the first example set out in s 39 (see at [27] above).

37. [77]

    On the use of examples in construing the National Law it is relevant to note that Sch 7 of the National Law contains miscellaneous provisions relating to the interpretation of the Law (as opposed to resorting to the various interpretation statutes in individual jurisdictions). Clause 10 of Sch 7 provides for the use of examples. It states that an example of the operation of a provision is not exhaustive; does not limit, but may extend, the meaning of the provision; and the example and the provision are to be read in the context of each other and the other provisions of the National Law, but if the example and the provision are inconsistent, the provision prevails.

38. [78]

    For all these reasons, I reject the plaintiffs’ claim that the 2023 Guidelines are ultra vires and invalid.

39. [79]

    As to the improper or unauthorised purpose claim, this ground overlaps to some extent with the ultra vires claim in the sense that the plaintiffs alleged that the 2023 Guidelines were made not only for the purpose of providing guidance for the profession, but also for the unauthorised purpose of reforming medical regulation. They submitted that the Medical Board has misapprehended the scope of its guideline-making function and power under ss 35 and 39, by viewing them as involving a rule-making power which allowed it to regulate the profession.

40. [80]

    The plaintiffs acknowledged that the object of the legislation is to establish a national registration and accreditation scheme for the regulation of health practitioners. They emphasised, however, that the regulatory functions in s 35 are distinct from those related to discipline (being the functions set out in ss 35(1)(g)-(h)), while also recognising that different arrangements apply in NSW and Queensland for disciplinary functions.

41. [81]

    The plaintiffs relied upon the following passage from Latham CJ’s judgment in Brownells Ltd v Ironmongers’ Wages Board (1950) 81 CLR 108 at 119-120; [1950] HCA 3 (emphasis added, footnote omitted):

42. [82]

    For the following reasons, I reject the plaintiffs’ position. First, as stated above, it is evident from the text of s 39 that (in contrast to the position posited in Brownells) the Medical Board’s power to develop and approve codes and guidelines is not confined to a single purpose. One purpose, as stated in s 39(a), is “to provide guidance to the health practitioners it registers”. But another purpose for developing and approving codes and guidelines is provided by s 39(b), namely developing and approving codes and guidelines about other matters relevant to the exercise of its functions (which functions are set out in s 35). The Medical Board’s power to develop and approve a code or guideline under s 39(b) is not confined to providing guidance (as is the case under s 39(a)). It is unnecessary to determine the correctness of the Medical Board’s submission in oral address that paragraph (b) provides an alternative source for the validity of the 2023 Guidelines in the event that the Court were to hold them ultra vires under paragraph (a).

43. [83]

    Secondly, I am not satisfied that the plaintiffs have discharged their burden of demonstrating that the 2023 Guidelines were developed and approved for an improper or unauthorised purpose. Indeed, as highlighted by the analysis above of the plaintiffs’ ultra vires claim, there are many features of the 2023 Guidelines which indicate that their purpose was to provide guidance and not to create legally binding rules.

44. [84]

    Ground 2 of the summons claims that the Medical Board’s decision to publish the 2023 Guidelines was infected by jurisdictional error because the Medical Board considered an irrelevant consideration and/or failed to consider a relevant consideration, being s 3A of the NSW National Law or the equivalent provisions in the other jurisdictions. The claim relating to an irrelevant consideration was not developed in the plaintiffs’ oral or written submissions. Rather, the focus was very much on the Medical Board’s alleged failure to consider one or more mandatory relevant considerations.

45. [85]

    The plaintiffs submitted that the Medical Board had failed to take into account a mandatory relevant consideration, namely the effect of the Queensland Amendment Act, which provided that the “main guiding principle” of the national registration and accreditation scheme would be both the protection of the public and public confidence in the safety of services provided by registered health practitioners and students, which matters were both described as “paramount” (see at [35] above). This provision introduced s 3A into the Schedule and extended it to the other participating jurisdictions, other than NSW and Western Australia (the Queensland National Law, as noted above, replaced its previous s 3A with the Schedule’s new s 3A).

46. [86]

    NSW elected not to adopt these changes. Instead, it introduced a different version of s 3A by the NSW amendment (which is set out at [38] above). The new s 3A in the NSW National Law provides that the “main guiding principle” of the scheme is that “the protection of the health and safety of the public must be the paramount consideration”. Thus the reference to “public confidence” in the Queensland Amendment Act was not adopted in NSW. The plaintiffs claimed that there was a significant difference between the provisions and the Medical Board failed to recognise this difference or take it into account in its decision to approve and publish the 2023 Guidelines.

47. [87]

    The plaintiffs correctly acknowledged that, for them to succeed on this ground, they needed to establish that the Medical Board’s failure to take into account a mandatory consideration constituted a material error, in the sense that there is a realistic possibility that the Board would have made a different decision absent the alleged error. They submitted, however, that unlike decisions such as migration decisions, which are binary in nature, the “different decision” for the purposes of establishing materiality is “a continuum”. They contended that, in these circumstances, it would be sufficient for the purposes of the requirement of materiality to show that, if the Medical Board had not considered a mandatory relevant consideration, it may well have decided to issue different guidelines which omitted one or more of the impugned clauses.

48. [88]

    The plaintiffs also contended that because the 2023 Cosmetic Surgery Guidelines placed restrictions on the practice of surgery, it was necessary for the Medical Board to consider the guiding principle in s 3A(2)(c), namely that restrictions on the practice of a health professional are to be imposed under the scheme “only if it is necessary to ensure health services are provided safely and are of an appropriate quality” (the necessity principle), and to give this matter appropriate weight as against the paramount consideration.

49. [89]

    For the following reasons, I do not accept those contentions. First, and foremost, I am not satisfied that the plaintiffs (who carry the burden) have demonstrated on the balance of probabilities that the matters were not considered. On the contrary, parts of the 2023 Guidelines strongly suggest that the protection of the public and public confidence and the safety of relevant services were considered. Thus the 2023 Cosmetic Surgery Guidelines contain the following statements:

50. [90]

    To similar effect, the 2023 Cosmetic Advertising Guidelines contain the following statements:

51. [91]

    Secondly, I accept the Medical Board’s submission that regard may also be had to material which preceded the publication of the 2023 Guidelines to indicate that it considered the health and safety of the public as well as public confidence in the profession. For example:

52. [92]

    Thirdly, I accept the Medical Board’s submission that a reasonable inference can be drawn that the Medical Board, which is an entity created by the National Law in each jurisdiction, was aware of the content of the National Law in each of those jurisdictions. To reinforce the reasonableness of drawing such an inference, it is notable that the Introduction to both 2023 Guidelines refer to provisions of the National Law “as in force in each state and territory”. Moreover, it is notable that there was an agenda paper for the August 2022 joint meeting of the National Boards and Ahpra which provided a detailed analysis of the Bill which was to become the Queensland Amendment Act. Specific mention was made of the fact that the Bill proposed the insertion of a new paramount principle into the Schedule of the Queensland Act to provide that the protection of the public and public confidence in the safety of services provided by registered health practitioners and students are paramount considerations. Moreover, explicit mention was made of the fact that NSW would need to make a regulation to give effect to the amendments in that jurisdiction (Exhibit 1).

53. [93]

    Fourthly, I do not attach any particular significance to the fact that, unlike the position in Queensland etc, the NSW National Law does not contain an explicit reference to “public confidence”. I accept the Medical Board’s submission that there is no reason to believe that it was unaware of differences in the National Law between various jurisdictions (including NSW and Queensland). Moreover, I consider that the concept of “public confidence” is necessarily implicit in the objective of protecting the health and safety of the public (see Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA).

54. [94]

    Finally, there is no substance in the plaintiffs’ claim that the Medical Board failed to consider the necessity principle. As the Medical Board pointed out, a guiding principle to the effect that “restrictions on the practice of a health profession are to be imposed…only if it is necessary to ensure health services are provided safely” has been present in all versions of the National Law, before and after the 2022 amendments. There is no force in the contention that the 2022 amendments to the National Law indicate that the Medical Board failed to consider this guiding principle.

Conclusion

1. [95]

   For all these reasons, an extension of time should be granted but the summons will be dismissed, with costs.