Hanna v ACT Commissioner for Community and Health Services Complaints [2002] ACTSC 111 (6 November 2002)

Last Updated: 6 November 2002

VICKI MARIE HANNA and CHURCH OF SCIENTOLOGY INC v THE COMMISSIONER COMMUNITY AND HEALTH SERVICES COMPLAINTS AUSTRALIAN CAPITAL TERRITORY [2002] ACTSC 111 (6 November 2002)

CATCHWORDS

ADMINISTRATIVE LAW - application to review decision to require provision of information and production of documents concerning a practice of the Church of Scientology called the "Purification Rundown"- statutory power limited to information and documents relevant to the subject matter of an investigation - matters that may be investigated defined by statute - "health service" defined to mean a service provided, or purportedly provided, for the benefit of the health of a person - whether Purification Rundown a health service as defined- jurisdictional facts to be ascertained by reference to evidence at hearing - onus on party asserting absence of such facts.

PUBLIC HEALTH - definition of "health service" - purposive definition - whether dominant purpose test applicable - whether extends to religious rituals - whether religious rituals may also involve provision of health services - relevance of traditional separation between church and state - whether services must be of direct benefit to a person's health - whether services must be ultimately directed, or purportedly directed, toward achieving health benefits by the intrinsic therapeutic value of the services or of further services that might be provided as a consequence rather than by divine intervention or spiritual development - whether the "Purification Rundown" a health service - whether statutory power to investigate -whether power to require provision of information and production of documents.

RELIGION - whether power to investigate "health services" extends to religious rituals - relevance of traditional separation between church and state - whether "Purification Rundown" conducted by Church of Scientology a ritual - whether religious rituals may also involve provision of health services -whether "Purification Rundown" a health service - whether statutory power to investigate - whether power to require provision of information and production of documents.

Administrative Decisions (Judicial Review) Act 1989, s 5

Community and Health Services Complaints Act 1993, ss 4, 40, 45(1)

R v Blakeley; Ex Parte Association of Architects of Australia [1950] HCA 40; (1950) 82 CLR 54

D.M.W. v C.G.W. (1982) 151 CLR

R v Ludeke; ex parte Queensland Electricity Commission [1985] HCA 57; 159 CLR 178

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 45

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

Church of the New Faith v Commissioner of Payroll Tax (Victoria) [1983] HCA 40; (1983) 154 CLR 120

Aronson and Dyer, Judicial Review of Administrative Action, (2^nd Ed)

No SC 25 of 2002

Judge: Crispin ACJ

Supreme Court of the ACT

Date: 6 November 2002

IN THE SUPREME COURT OF THE )

) No. SC 25 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: VICKI MARIE HANNA

First Applicant

AND: CHURCH OF SCIENTOLOGY INC.

Second Applicant

AND: THE COMMISSIONER COMMUNITY AND HEALTH SERVICES COMPLAINTS AUSTRALIAN CAPITAL TERRITORY

Respondent

ORDER

Judge: Crispin ACJ

Date: 6 November 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The decision by the respondent to serve a notice on the applicants pursuant to s 45 of the Community and Health Services Complaints Act 1993 be quashed and the notice dated 12 December 2001 be set aside.1. This is an application for judicial review pursuant to s 5 of Administrative Decisions (Judicial Review) Act 1989 of a decision by the respondent to serve a notice purporting to require the first applicant to provide information and documents concerning a practice of the second applicant known as the "Purification Rundown".

2. The notice was purportedly issued pursuant to s 45(1) of the Community and Health Services Complaints Act 1993 ("the Act") which provides as follows:

"If the commissioner has reason to believe that a person is capable of providing information or producing a document or other record relevant to the subject matter of an investigation, the commissioner may, by written notice served on the person, require the person, at the place and within the period or on the day and at the time, that are specified in the notice -

(a) to provide to the commissioner, by writing signed by that person or, for a body corporate, by an officer of the body corporate, any such information; or

(b) to produce to the commissioner such document or other record as is specified in the notice; or

(c) to provide to the commissioner any such information and to produce to the commissioner such document or other record as is specified in the notice."

3. It may be noted that the power so provided is limited to requiring the provision of information and/or the production of documents or records relevant to the subject matter of "an investigation". The power to investigate is provided by s 40 of the Act, the relevant portions of which are as follows:

(1) The commissioner may investigate, by exercising the powers conferred by this part -

(e) of his or her own motion, any other matter relating to the provision of community services or health services in the Territory."

4. In the present case, the decision to serve the notice had been based upon the respondent's view that in conducting the Purification Rundown the second applicant was providing health services in the Territory. This view was strongly challenged. Both applicants maintained that the Purification Rundown was a religious ritual. The respondent did not ultimately dispute this contention but maintained that the practice nonetheless involved the provision of health services.

5. The evidence established that the Purification Rundown is a regimen including exercise, sweating and the taking of vitamin and mineral supplements. A participant begins by jogging on a running machine in what is described as the "Purification Room" or in a nearby park for a period of up to half an hour. He or she then takes the vitamin and mineral supplements and proceeds to spend periods amounting in all up to four and a half hours sweating in a sauna. The time spent in the sauna need not be continuous. In fact, participants are encouraged to take showers or rest between periods in the sauna. Furthermore, a number of precautions are taken to ensure that the person does not experience heat stress or other health problems. Those intending to undertake the program are required to have a medical check-up before commencing it. Those with weak hearts or certain other conditions are excluded. Participants are encouraged to drink sufficient water to replace fluids lost due to sweating and the vitamin and mineral supplements are intended to replace lost nutrients.

6. The term "health service" is defined by s 4 of the Act to mean:

"a service provided or to be provided in the ACT for, or purportedly for, the benefit of the health of a person and includes a service specified in Schedule 1, Part 1.1..."

7. Part 1.1 of the Schedule is in the following terms:

Part 1.1 Services that are health services

1 A service provided at a hospital, health institution or nursing home.

2 A medical, dental, pharmaceutical, paramedical, mental health, community health, environmental health or specialised health service or a service related to such a service.

3 An examination for the purpose of preparing a health status report.

4 A laboratory service provided in support of a health service.

5 A laundry, dry-cleaning, catering or other support service provided to a hospital, health institution or nursing home, if the service affects the care or treatment of a patient or a resident.

6 A social work, welfare, recreational or leisure service, if provided as part of a health service.

7 An ambulance service.

8 Any other service provided by a registered provider for, or purportedly for, the care or treatment of another person.

9 A service provided by -

(a) an audiologist, audiometrist or optical dispenser; or

(b) a child guidance therapist, dietitian, prosthetist, psychotherapist, radiographer or therapeutic counsellor; or

(c) a dental hygienist, dental therapist or dental prosthetist;

or any other service of a professional or technical nature provided for, or purportedly for, the care or treatment of another person or in support of a health service.

10. A service provided by a practitioner of massage, naturopathy or acupuncture or in another natural or alternative health care or diagnostic field.

11 .The provision of information relating to the promotion or provision of health care or to health eduction."

8. It was common ground that the question of whether or not the Purification Rundown involved the provision of a health service was a jurisdictional fact and that it was necessary for the Court to resolve this issue in the light of all of the evidence and not merely by reference to the material that had been available to the decision maker. See R v Blakeley; Ex Parte Association of Architects of Australia [1950] HCA 40; (1950) 82 CLR 54 at 90-92; D.M.W. v C.G.W. [1982] HCA 73; (1982) 151 CLR 491 at 510; R v Ludeke; ex parte Queensland Electricity Commission [1985] HCA 57; 159 CLR 178 at 183-184; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 45 at 63; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 146.

9. Mr Kettle, who appeared on behalf of the respondent, argued that the applicants bore the onus of proof in relation to this issue. He relied upon the statement in Aronson and Dyer Judicial Review of Administrative Action, (2^nd Ed) at 197 that the general legal burden on proof falls on anyone who asserts the absence of a jurisdictional fact. Mr Hutley SC, who appeared for the applicants with Mr Turner, did not concede the correctness of this statement but was unable to point to any contrary authority. I accept that the onus of proof rests upon the applicants.

10. Mr Hutley's primary submission was that the onus of proof in this case was largely, if not wholly, immaterial because the applicants had adduced a substantial body of affidavit evidence, the effect of which was substantially unchallenged.

11. It is clear from the High Court's decision in the Church of the New Faith v Commissioner of Payroll Tax (Victoria) [1983] HCA 40; (1983) 154 CLR 120, that Scientology, or "The Church of the New Faith" as it was then known, is a religion and, as I have mentioned, it was expressly conceded that the Purification Rundown is a ritual of that religion. The only question is whether its performance nonetheless involves the provision of a "health service" as defined in s 4.

12. Mr Hutley submitted that the use of the word "for" in this definition plainly required the application of a purposive test. He relied upon the extensive explanation contained in the Macquarie Dictionary which includes the following formulations and examples:

"1. with the object or purpose of: to go for a walk; 2. intended to belong to, suit the purposes or needs of, or be used in conjunction with: a book for children, a box for gloves; 3. in order to obtain: a suit for damages; 4. with inclination or tendency towards: to long for a thing, to have an eye for beauty; 5. (as expressing a wish or desire for something to be obtained): O for the wings of a dove ..."

13. Hence, he maintained, services were health services only if they were provided for the purpose of causing or facilitating benefit to a person's health. In the present case, the relevant question was whether the purification rundown was a service provided by the second applicant for the purpose of causing or facilitating some improvement in the health of participants. That question could be readily answered. There was an overwhelming body of evidence to the effect that it was provided as a religious ritual and not for any such purpose.

14. Mr Kettle's submissions in answer to these contentions relied, in essence, upon three arguments.

15. First, he contended that the test was not purposive but objective. He also referred to the Macquarie Dictionary but relied upon a further formulation and example cited in relation to the word "for", namely: "7. appropriate or adapted to: a subject for speculation". Hence, he argued, the relevant question was not related to the purpose or motive of the service provider; but simply whether the service so provided was appropriate or adapted to the benefit of the health of participants.

16. This argument is not unattractive. As Professor Bouma observed in a report annexed to his affidavit, there are religious rituals and practices which may have a significant impact upon the health of participants. Some of the more extreme practices such as female circumcision or suttee, a former Hindu rite involving the voluntary immolation of widows, are obviously illegal in Australia. However, there are other practices which involve fasting, hypnotic trances and/or the use of mind altering substances. It might be thought that the respondent should not be prevented from investigating potentially serious health risks or obtaining access to information and/or records for the purposes of such an investigation merely because the practices which may give rise to them are said to have religious significance. Nonetheless, I am obliged to interpret and apply the section as drafted and, in my opinion, the term "health service" cannot be interpreted in the manner suggested.

17. The interpretation for which Mr Kettle contended would enlarge the ambit of the relevant power beyond the scope which I think could reasonably be attributed to the intention of the legislature. If the power were to be invoked by the provision of any service appropriate to or adapted to the benefit of the health of others then it would be difficult to see how many areas of human endeavour could be excluded. For example, it would presumably apply to the service of nutritious food or drinks, exercise classes, the sale of warm clothing and the provision of housing and other forms of shelter. Indeed, if the word "health" were taken to extend to anything for the benefit of emotional health, as Mr Kettle suggested, then such an expansive interpretation of the term "health service" would presumably extend to any act capable of having a positive affect on a person's emotional state such as a promotion, a new relationship or, perhaps, even a smile.

18. A more narrow focus could be provided if the term were to be interpreted as applying only to services of the kind specified in Part 1.1 of the Schedule. Whilst the services so specified are expressly included within the range of health services, the definition has been expressed in very broad terms and its terms do not suggest that the more general words should be construed ejusdem generis. Nonetheless, the very breadth of the phrase "for the benefit of the health of a person" suggests a need for some qualification if the respondent's responsibilities are not to be regarded as extending to such businesses and organisations as restaurants, clothing stores and sporting clubs.

19. In my opinion the word "health" as used in this definition must refer to the state of being sick or well. The Act is concerned with services provided for the treatment and care of physical or mental illness or injury and no doubt extends to services such as inoculations carried out in order to prevent illness. It is not concerned with the provision of food, clothing, shelter and other things that may be essential for life but which are not specifically related to the care or treatment of illness or injury.

20. In any event, as Mr Hutley pointed out, the words of the section state that the service must be "provided for, or purportedly for the benefit" of the health of others. In my opinion, the phrase "provided for" means that the service must be provided for the purpose of causing or facilitating such a benefit. Confirmation of that meaning may be found in the presence of the alternative phrase "or purportedly for" which in this context clearly means that the service must be professedly or ostensibly provided for such a purpose.

21. Second, Mr Kettle contended that if the section did require a purposive test, it was sufficient that the stated purpose exist, even if the service had also been provided for other purposes including, perhaps, more dominant purposes.

22. This argument is not without some cogency. Few acts reflect complete purity of motive or single-mindedness of purpose. Even the most conscientious medical practitioners who are devoted to their patients may have secondary purposes for treating the sick such as the derivation of income and career satisfaction. Furthermore, to bring benefit to the health of others is a noble purpose which is intrinsically compatible with most religious belief and practice. Many churches operate hospitals, hospices or other medical facilities. The fact that the services are provided by religious bodies does not deprive them of the quality of being health services or provide any reason for concluding that the respondent should be denied information or records relating to them.

23. On the other hand, I am unable to accept that the section should be construed as applying to a service provided primarily for a religious purpose merely because those providing it may have had a subsidiary health-related purpose in mind. In other areas of statutory construction, references to purpose have been construed to mean the sole or dominant purpose. The former would, in my opinion, be too onerous a test but there is no reason to suppose that the legislature intended to go beyond a dominant purpose test to embrace any services the provision of which may have been accompanied by some intention to provide some benefit to the health of the recipient. Such a construction could again extend the reach of the legislation to wide areas of human activity not normally regarded as involving the provision of health services.

24. Furthermore, it would be inappropriate to attribute to the legislature an insensitivity to the traditional separation between church and state as reflected in s. 116 of the Australian Constitution or an intention to authorize public officials to intrude into areas which predominantly concern matters of religious belief or practice.

25. The quest for an identifiable principle by which the ambit of the respondent's power may be delineated becomes especially difficult in the context of religious bodies. Concern for the sick has been endemic to many, if not all, religions and many not only have formal prayers for healing but special rituals and liturgies. A dividing line cannot be drawn merely by reference to physical contact or intervention because, whilst that is not required by some health services such as psychotherapy, it is a feature of some religious rituals. To take but one obvious example, from the earliest days of the Christian church, elders laid hands on the sick and sometimes anointed them with oil. Nor can such a line be drawn solely by reference to the objective of the prayer or ritual. A person who prays for the restoration of the health of a sick friend or parishioner does not thereby provide a health service of a kind envisaged by the legislation.

26. In my opinion, the definition of the term "health service" is not limited to services that are of direct benefit to a person's health. It would extend to the provision of pathology tests or other services of an exploratory or diagnostic nature. However, as mentioned earlier, the benefits or ostensible benefits must relate specifically to the treatment and care of physical or mental illness or injury or to services such as carried out in order to prevent illness. Furthermore, they must ultimately be directed, or purportedly directed, toward achieving such health benefits by virtue of the intrinsic therapeutic value of the service itself or of those further services that might be provided as a consequence of the diagnosis made or information ascertained. Hence, the question of whether a procedure constitutes a health service requires a judgment as to whether the dominant purpose or purported purpose is to cause or facilitate some benefit to a person's health by means of the service itself rather than by the invocation of divine intervention or by means of spiritual development.

27. Third, Mr Kettle argued that in the case of the Purification Rundown even the dominant purpose test was satisfied. He maintained that the immediate purpose of that procedure is detoxification from drugs and other health benefits. It is true those health benefits are sought not for merely for their own intrinsic value but as a means of facilitating or at least removing an obstacle to spiritual development. However, the fact that an improvement in health is sought for some further purpose does not warrant a conclusion that the more immediate purpose for which the service had been provided should be ignored.

28. Whilst I do not doubt the correctness of these principles, they must obviously be applied in the light of the evidence in the case. There are some passages in documents produced by the second applicant that support Mr Kettle's submission and the nature of the activity undertaken during the Purification Rundown is strongly suggestive of an attempt to ensure physical detoxification and other health benefits. Nonetheless, the preponderance of evidence was to the effect that the Purification Rundown is essentially provided for religious purposes and not for the benefit of the health of participants. Much of that evidence was effectively left unchallenged and I can see no reason to reject it.

29. It is true that the regimen involves potentially debilitating activities but many religions have traditions of mortifying the flesh for spiritual purposes. The practices may not have involved the use of saunas but prolonged fasting, self-inflicted scourging and other traditional methods of self-abasement would also have had health implications and the relative modernity of the methodology would not appear to warrant any difference in principle. It is also true that the regimen is preceded by a medical examination but this is obviously required in order to reduce or avoid any risk of participants suffering harm as a result of the exercise and/or dehydration due to sweating rather than for the purpose of producing extraneous health benefits. It is also true that vitamins and minerals are administered but there is no apparent reason to regard their use as being inconsistent with the avowed spiritual purpose of the Purification Rundown.

30. Having regard to all of the evidence in the case, I am satisfied that the Purification Rundown is essentially a religious ritual and not a health service.

31. However, the fact that a ritual extending over a period of some hours is essentially religious in character does not exclude the possibility that some particular activity undertaken as a constituent element of the ritual may itself constitute a health service. In my opinion, the provision of advice to use the stipulated vitamins and minerals does constitute such a service. The second applicant characterises these substances as "food supplements" taken to replace nutrients lost during sweating in the sauna but the evidence clearly suggests that they are intended to facilitate drug detoxification and provide other benefits to physical or mental health. For example the evidence of Prof Bouma includes the following statements:

The work of Niacin (a B vitamin) is described by L. Ron Hubbard (HCO Bulletin of 6 February 1978, Revised 27 March 1990) in this way,

(Niacin) can produce some startling and in the end very beneficial results when taken properly on the rundown, along with the other necessary vitamins and minerals... Running and sweating must be done in conjunction with taking niacin to ensure the toxic substances actually do get flushed out of the body. In theory, niacin apparently does not do anything by itself. It is simply interacting with niacin deficiencies which already exist in the cellular structure. It does not turn on allergies; it runs out allergies.

According to L. Ron Hubbard (HCO Bulletin of 6 February 1978, Revised 27 March 1990), the mineral regime involves Calcium `is a must where any healing or exchange process is involved as it is a basic building block ... and affects the nervous system' `Calcium would be administered in company with Magnesium ... itself proven necessary to keep nerves smoothed out.'

32. Considered overall, the evidence establishes that the advice concerning the use of Niacin is given for the purpose of facilitating the removal of toxic substances from the body of participants, albeit in conjunction with running and sweating, and to alleviate allergies. It also establishes that the advice to take minerals is given to facilitate other health benefits including, in the case of calcium, a healing effect on the nervous system. For these reasons, I am satisfied that the provision of advice to take vitamins and minerals does constitute a "health service" as defined in s 4.

33. The respondent's reasons suggest that his concern about the Purification Rundown related substantially to the doses of vitamins that were allegedly "prescribed", especially the doses of Niacin which it was suggested exceed the US recommended daily intake by "as much as 250 times". This concern could prove to be unfounded but in my opinion the issue is one that the respondent is entitled to investigate.

34. Section 5 of the Administrative Decisions (Judicial Review) Act provides that a person aggrieved by a decision to which that Act applies may apply to the Supreme Court for an order of review on a number of grounds including that specified in subparagraph (d), namely "that the decision was not authorised by the enactment under which it was purported to be made". The power upon which the respondent purportedly acted authorises him to require the provision of information, documents or other records only if relevant to the subject matter of an investigation. Any such investigation must relate to matters of the kind stipulated in s 40 of the Act and, for the reasons given earlier, I am satisfied that the Purification Rundown itself is not a health service and hence does not constitute such a matter. Hence, s 40 did not authorise the conduct of an investigation into this practice and s 45 did not authorise the decision to require the provision of the information and/or production of documents specified in the notice. The notice did not contain any requests for information specifically related to the provision of vitamins and minerals and there are, therefore, no discrete portions of the notice that could be regarded as severable.

35. Accordingly, the decision must be quashed and the notice set aside.

36. However, having regard to the findings which I have made, these orders will not prevent the service of a further notice directed to the provision of vitamins and minerals or advice given to participants in the Purification Rundown concerning the taking of such substances.

37. I will hear counsel as to costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Crispin.

Associate:

Date: 6 November 2002

Counsel for the applicant: N Hutley SC with G L Turner

Solicitor for the applicant: Meyer Clapham

Counsel for the respondent: D A Kettle

Solicitor for the respondent: ACT government Solicitor

Date of hearing: 14 October 2002

Date of judgment: 6 November 2002