The Health Practitioner Regulation National Law is an example of cooperative federalism.  Each jurisdiction has agreed to pass legislation in the same terms in order to create a national scheme for the regulation of health professionals.  It is not a law of the Commonwealth or Federal Parliament.  By agreement the ‘model’ law is the law as passed by Queensland and it is either adopted or copied by the other states but with differences between each states.  Even the Health Practitioner Regulation Law as applied in Queensland is not the same as the model law (see the discussion in the post NSW Paramedic suspended after participation in COVID-19 protests (April 14, 2023)).

In a further post, Challenge to Health Practitioner Regulation National Law (June 7, 2023) I noted that Dr William Bay was challenging the Constitutional validity of the national law.   In that post I said:

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.

Dr Bay’s first challenge was heard by the Supreme Court of Queensland. In Bay v Australian Health Practitioner Regulation Agency [2024] QSC 315 (13 December 2024), Bradley J upheld Dr Bay’s complaints about the processes of the Medical Board and the Australian Health Practitioner Regulation National Agency but dismissed his case on the constitutional validity of the regulatory scheme.

Dr Bay’s suspension

Dr Bay had been suspended after five complaints about his conduct in publicly campaigning against the use of COVID-19 vaccines.   The Medical Board decided to suspend his registration and refer the matter to the Queensland Civil and Administrative Tribunal.  In what can only be described as a ‘scathing’ judgment, Bradley J upheld Dr Bay’s complaints that the Board had demonstrated bias and that he had been denied natural justice.  What made the matters worse was that the Board had continued to defend its position, and argued that Dr Bay’s application should have been dismissed, even when it was aware of the faults in its own process and only disclosed evidence that supported Dr Bay’s claim after the trial had ended.   At [107]-[109] Bradley J said:

On the final day of the hearing, the Board and AHPRA tendered the critical evidence, revealing the errors in their suspension decision. It was produced to the Court in an affidavit of Mr Frolow, affirmed the day before. No explanation was provided for the delay in disclosing his material.

An earlier examination of the five notifications, the agenda paper and the decisions and actions documents would have revealed that the Board had acted beyond the power conferred on it by Parliament. The Board and AHPRA had the means to identify and understand that the suspension decision could be set aside Dr Bay’s without application for review.

Rather than reveal or act on this information, from 10 February 2023, they sought to prevent Dr Bay from having his application for review heard. Between 15 November 2022, when Dr Bay filed his application for review and 23 October 2024, the last day of the hearing, they did not produce the documents evidencing that the Board had acted beyond power. It is reasonable to infer that while the Board and AHPRA were seeking to dismiss Dr Bay’s application for review, they did not think themselves under any obligation to reveal these documents to Dr Bay or put them before the Court.

And at [115]-[117]:

It might be difficult to characterise the conduct of the Board and AHPRA as anything less than profoundly unsatisfactory… The rush to judgment by the Board might explain the serious errors made. There was no satisfactory explanation for defending the suspension decision after Dr Bay filed the application for review. It indicates an animus towards Dr Bay that is in tune with the apparent bias that contaminated the original decision.

The Constitutional issues

Because of these findings the decision to suspend Dr Bay and refer him to QCAT were set aside.  As a result, it was not really necessary for the court to deal with the constitutional issues (see [120]) but it did.  On the issue of the validity of the legislation the State of Queensland was also joined as a party.

The Court found that the action of Queensland in passing the Health Practitioner Regulation National Law Act 2009 (Qld) was not an attempt to pass Commonwealth legislation.   His Honour said (at [121]):

The Queensland Parliament has not purported to enact Commonwealth legislation. Neither the Act, the National Law (Qld) or the National Law Regulation purport to be an exercise of the Commonwealth’s legislative authority. Rather, the National Law (Qld) and its equivalents in other States represent an attempt by those States to create a common standard for the regulation of medical practitioners across their jurisdictions. There is nothing in the Constitution, express or implied, or at common law which prohibits States (and the Commonwealth) from exercising their legislative authority in a way that is complementary to each other. Similarly, cooperation between States to create a uniform set of rules across jurisdictions is a well-established regulatory model, and is not an “abdication” or a “relinquishment’ of a State’s legislative authority.

There was nothing misleading in the title of the Act as a ‘national’ law or the creation of the ‘Medical Board of Australia’.   As His Honour said (at [122])

… the inclusion of the word “national” merely describes a regulatory scheme that operates throughout Australia. It is not intended to imply that it is Commonwealth legislation. Similarly, nothing turns on the inclusion of “Australia” in the names “Australian Health Practitioner Regulation Agency” or “Medical Board of Australia”. Parliaments are empowered to name entities as they see fit.

One of Dr Bay’s questions was ‘Does the Regulation purport to amend or modify Commonwealth laws? And if so, are such amendments or modifications lawful?’  An answer to that question was given at [124] but with respect to Bradley J there appears to have been a misunderstanding. His Honour said:

The National Law (Qld) does not purport to amend or modify Commonwealth laws. It applies particular Commonwealth legislation as laws of Queensland. The National Law Regulation makes amendments to the Commonwealth legislation only as it applies as a law of Queensland. The amendments are so it may apply sensibly in Queensland as a law of Queensland. Although somewhat complex, this is a valid way of legislating. The Queensland Parliament, by the National Law (Qld), and the Governor in Council, by the National Law Regulation, do not purport to modify or amend Commonwealth legislation. An attempt to do so would be ineffective.

That misstates the position.  There is no Commonwealth legislation that is being applied as a law of Queensland. The model Health Practitioner Regulation National Law is set out as a schedule to the Health Practitioner Regulation National Law Act 2009 (Qld).  By provisions in that Act the Queensland parliament amends or gives relevant definitions in order to apply the law that is set out in the Schedule as a law of Queensland.   In short the Health Practitioner Regulation National Law (Qld) is not the same as the Health Practitioner Regulation National Law that appears in the Schedule to the Act.   Equally the other states and territories have either adopted the law in the Schedule subject to amendments that they have made or they have copied the schedule into their own legislation and made their own local modifications.  It does follow that the Health Practitioner Regulation National Law is not the same in each state and territory.

It is not however an application, or adoption or modification of any Commonwealth law.  It is correct therefore that the adoption of the law in Queensland is not in any way an attempt by Queensland to modify a Commonwealth law.  On that conclusion Bradley J is correct; but the Queensland Act does not apply ‘particular Commonwealth legislation as laws of Queensland’.

Bradley J rejected the argument that the cooperative legislation had the effect of creating either the Australian Health Practitioner Regulation Agency (AHPRA) or the medical board as offices of the Commonwealth.  At [125] Bradley J said:

The express intent of each parliament is to create “one single national entity”, and to authorise a regulation to continue in existence an existing single national board. There is no constitutional difficulty with establishing a single entities through legislation of various jurisdictions, and AHPRA and the Board may exercise their functions in relation to one participating jurisdiction or two or more or all participating jurisdictions collectively.

The argument that the Queensland parliament was attempting to regulate health practitioners nationally was also rejected. At [126] His Honour said:

In short, the Queensland Parliament is not empowered to regulate health practitioners nationally. However, implicit in … Dr Bay’s contention [is] that, by enacting the National Law (Qld), the Queensland Parliament is attempting to regulate health practitioners nationally. With respect, that contention is not correct. By enacting the National Law (Qld), the Queensland Parliament, like each other participating State, was not attempting to regulate health practitioners nationally. Parliament merely enacted a standard for the regulation of medical practitioners that is largely common across the participating jurisdictions. This is a permissible approach to legislating.

Finally, Dr Bay alleged that the National Law was a contravention of the Australian Constitution s 51(xxiiiA).   That section says:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:–

The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances

The popular argument during the height of the pandemic response was that the various policy on mandates represented a form of ‘civil conscription’.   This court did not expressly identify the argument nor deal with it. Rather the court said that s 51(xxiiiA) was both the grant of, and a limitation of the power of the Commonwealth parliament but (at [127]) ‘It is not relevant to a State parliament exercising its legislative authority, such as the Queensland Parliament in enacting the National Law (Qld) as a law of this State’.

Costs

Because Dr Bay won all the substantive points against AHPRA and the Board it was determined that they should pay his costs.   He lost the constitutional challenges, but said the judge (at [133]):

The steps in the proceeding could have been avoided had the Board acted more like a model litigant and promptly identified that the decisions were affected by apprehended bias and a denial of procedural fairness. Had this happened, most of the costs incurred by the parties and all the delay in the proceeding likely could have been avoided. For this reason, there should be no reduction to allow for costs Dr Bay may have incurred in raising his challenges to the validity of the National Law (Qld) (and associated legislation) or for any costs the Board and AHPRA may have incurred in responding to those challenges.

The State of Queensland won in its defence of the laws so could expect to receive an order for costs.  But, said Bradley J (at [135]):

The Board’s communications with Dr Bay about the decisions, and some internal AHPRA documents later provided to Dr Bay, were affected by uncertain legal references and by references to laws that did not apply to Dr Bay’s conduct. In the circumstances, it was reasonable and proper for Dr Bay to include the State as a respondent and to advance against all respondents his challenges about the validity and application of various parts of the national regulatory scheme.

The costs incurred by the State and by Dr Bay in challenging the state legislation could all have been avoided ‘had the Board and AHPRA acted more appropriately’ ([135]).  Accordingly, it was the Medical Board and AHPRA that were ordered to pay the state’s costs in defending the validity of the legislation.

Discussion

The case certainly reads as a poor indictment on AHPRA, the medical board and their own understanding of the legislation they act under and basic notions of natural justice.  Their failings meant that Dr Bay was not properly informed of the allegations against him and the Board demonstrated bias in their determination.  In coming to this conclusion the court was at pains to identify that its role was to determine whether the Board and/or AHPRA had acted according to law, not to judge the merits of the various claims.  His Honour said (at [6]):

The Court is concerned only with whether the decision or the conduct was free from an error that goes to the decision-maker’s authority to make the decision. The Court does not have any opinion on any argument about the substantive merits raised in public debate relating to any decision under review.

The court therefore did not make any judgement about Dr Bay’s claims or his behaviour in promoting his claims.  The case was not about Dr Bay, it was about AHPRA and the Medical Board and it reflected poorly on them.  In terms of others who have campaigned against the response to COVID-19 the case does not provide an authority that the Medical Board (or any of the other boards including the Paramedicine Board) cannot or could not move to limit statements against public health advice or that Dr Bay’s conduct (or anyone else’s conduct such as Paramedic John Larter or Paramedic Sally-Anne Johns) was reasonable or legally defensible.    There’s nothing to stop the Medical Board restarting the process against Dr Bay if it felt so inclined provided it meets the legal standards required and acts according to legal principle.

On the constitutional issues, the case resolves the issues but as His Honour said (at [120]) ‘it is not necessary to decide the six questions or to consider them in depth’. As a judge sitting alone in the Court’s trial division this is significant, but it does not preclude others revisiting those arguments, should they so wish.   Dr Bay, having in the main won and having no costs order against him, is unlikely to want to appeal this aspect of the decision to the Queensland Court of Appeal (though he might).  In the absence of a decision of that Court (or a similar court of appeal) we’ll have to wait to see if another litigant wants to reopen those issues.

Until then this decision does mean that the Health Practitioner Regulation National law and the national scheme for the regulation of health professionals (including paramedics) has survived this challenge.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.