In the post NSW Paramedic suspended after participation in COVID-19 protests (April 14, 2023) I discussed the cooperative legislative scheme that has established the Health Practitioner Regulation National Law and the Australian Health Practitioner Regulation Agency (AHPRA).  In that post I said:

The national scheme is being challenged as unconstitutional: Bay v Australian Health Practitioner Regulation Agency & Others Queensland Supreme Court file number 14178/22. It is my opinion that this challenge will not succeed, but if it does it will certainly cause a major upset in Australia’s health professions including paramedicine. 

The applicant, William Bay attempted to have the matter removed from the Queensland Supreme Court to the High Court of Australia. That application was rejected today (Bay v AHPRA [2023] HCASL 86).  Gordon and Steward JJ said:

The application does not identify any basis to justify interference with the process of the Supreme Court of Queensland. There is no identified urgency and, by granting removal, this Court would be deprived of the benefit of the reasoning of the Supreme Court of Queensland. In the circumstances, including the interests of the parties and the public interest, the Court is not persuaded that it is appropriate to make the order sought.

That is not the end of the matter.  First, Bay say he intends to appeal, which is possible. This matter was an application to have a matter moved from the Queensland Court to the High Court under the Judiciary Act 1903 (Cth) s 40. This a matter that falls within the ‘original jurisdiction of the High Court’ (High Court Rules 2004 (Cth) Chapter 2). Where a justice or, as in the case, two justices, have made an order in the courts original jurisdiction, there is the option of an appeal to the full bench of the Court (Judiciary Act 1903 (Cth) s 34). Bay may seek to appeal but I expect any appeal will be unsuccessful. Assuming there is no successful appeal, the matter will remain before the Supreme Court of Queensland. If Bay is unhappy with the final result there he may be able to appeal to the Full Bench of the Supreme Court and then, if leave is granted, to the High Court.

Notwithstanding that I expect Bay’s challenge to AHPRA to fail, I will continue to report on it as it will be of interest to paramedics who are registered under the Health Practitioner national scheme. If by some chance Bay’s arguments actually succeed, that will have significant impact on paramedics and other health professionals. 

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.