Chilcott v Singh [2002] FMCA 39 (19 March 2002)

Last Updated: 3 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHILCOTT v SINGH

[2002] FMCA 39

ADMINISTRATIVE LAW - Judicial review.

Applicant:

PETER BERNARD CHILCOTT

Respondent:

INGRID SINGH

File No:

BZ00315 of 2001

Delivered on:

19 March 2002

Delivered at:

Darwin

Hearing Date:

17 December 2001

Judgment of:

Brown FM

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr M. Swan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

(1) That the application for an Order of Review filed on 5^th of July 2001 is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE

BZ00315 of 2001

PETER BERNARD CHILCOTT

Applicant

And

INGRID SINGH

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review that is brought pursuant to section 5 of the Administrative Decisions (Judicial Review) Act 1977.

2. The applicant in the proceedings is PETER BERNARD CHILCOTT, a medical practitioner who practises in Bowen in North Queensland. The respondent is INGRID CECILIE SINGH, a delegate of the Minister for Health and Aged Care in respect of powers conferred on the Minister pursuant to section 3J of the Health Insurance Act 1973 (hereinafter referred to as "the Act").

3. Ms Singh is an Assistant Director in the Workforce Distribution Programs Section of the Department of Health and Aged Care. Pursuant to section 131 of the Act, the Minister for Health and Aged Care delegated to Ms Singh authority conferred upon her by section 3J of the Act to grant exemptions from the definition of the term "medical practitioner" as defined in section 3(1) of the Act. In essence the effect of this power is to allow the Minister for Health and Aged Care to grant health insurance provider numbers to medical practitioners who are neither Australian citizens nor permanent residents of Australia. This means that the medical practitioners who are granted such an exemption can provide medical services which come within the definition of "professional services" as set out in the Act to patients who are entitled to claim Medicare benefits. It is common ground between the parties that the granting of such a health insurance provider number is a prerequisite to successful medical practice in Australia as it enables the medical practitioners upon whom the necessary number is conferred to receive payment for medical treatment provided to people entitled to claim Medicare benefits.

4. At the relevant time section 3J of the Act read as follows:

a) Despite the definition of medical practitioner in subsection 3(1), a person who:

i) is not an Australian citizen or a permanent resident; and

ii) entered Australia under a temporary visa for the principal purpose of either practising as a medical practitioner and/or undertaking specialist medical training;

is not a medical practitioner for the purposes of this Act, unless:

iii) the person has qualifications of a kind that the Minister has determined in writing to be appropriate for the purposes of this section; and

iv) an exemption granted by the Minister in writing applies to the person.

5. It is the exercise of this power under section 3J of the Act, delegated to Ms Singh by the Minister, of which Dr Chilcott complains. The relevant decision to grant an exemption under the Act was made by Ms Singh on 8 January 2001. It concerned two Nigerian-born doctors, Doctor Olufemi Taiwo and Doctor Justina Taiwo. On that date, Ms Singh granted exemptions to the Doctors Taiwo on condition that each remained legally qualified to practise medicine within Queensland and that each provided their professional services only at the Herbert Street Medical Clinic situated at 77 Herbert Street, Bowen in Queensland. A company known as One Stop Medical Services Pty Ltd operates the Herbert Street Medical Clinic.

6. It was a condition of the registration of the two Doctors Taiwo as medical practitioners by the Queensland Medical Board pursuant to the exercise of power conferred on the Board by section 17C(d) of the Medical Act 1939 (Queensland) that the Doctors Taiwo "practise (medical deputising services/bona fide locums) only within One Stop Medical Services Pty Ltd". Section 17C(d) of the Medical Act enables a person to be registered as a medical practitioner for the purposes of providing for unmet areas of medical need provided that the person seeking such registration was professionally qualified and had suitable experience in the practise of medicine.

7. Pursuant to section 17(2) of the Medical Act, the Queensland Minister for Health may decide if there is an area of unmet need in respect of the provision of medical services in any area of Queensland in the sense that there is within that area an insufficient number of medical practitioners to provide a level of service that is thought to be necessary to meet the needs of the people living in that area. The Queensland Department of Health had determined that the Bowen area was an "area of need" as defined by the Medical Act.

8. Both Doctors Taiwo were the holders of Nigerian passports and had been trained as doctors overseas. Each entered Australia on a temporary resident visa. The Medical Board of Queensland granted them each conditional registration as Medical Practitioners in Queensland, as set out above, on 9 November 2000. They agreed to undertake a general practice locum with the Herbert Street Medical Clinic commencing from 8 January 2001. As a result they both applied to the Health Insurance Commission for a Medical Practitioner Provider Number. This occurred on 29 December 2000.

9. Accordingly it was necessary for Ms Singh to consider whether an exemption should be granted to each of the Doctors Taiwo pursuant to section 3J of the Act to begin from 8 January 2001. As has already been indicated she made the necessary decision to grant each of the doctors an exemption on 8 January 2001.

10. In reaching her decision as to whether or not it was appropriate to issue such an exemption to the two doctors concerned, Ms Singh followed a set process to ascertain whether or not Bowen was an area with or without an oversupply of general medical practitioners. This involved her consulting statistics and other information held by the Department of Health and Aged Care and applying policy guidelines issued by the Department. These statistics and information included the following:

* The Rural and Remote Area classification of Bowen. Under this classification each state is divided into areas according to their remoteness from major population centres as well as according to the population numbers of the largest urban centres within the division itself. The rationale being that the more remote a particular area is the greater is the difficulty of recruiting doctors to work there. The divisions themselves are based on those determined by the Australian Bureau of Statistics from census figures.

* Reference to the number of "Full-Time Equivalent Practitioners" and "Practitioner Full-Time Workload Equivalents" within a locality. These are the numbers of full time medical practitioners or their equivalents within the locality as derived from a statistical analysis of the Medicare billing statistics for the locality concerned. Basically these calculations are derived by dividing the total of all monies provided by Medicare in respect of medical services within a particular locality by the number of medical practitioner who hold provider numbers within that locality. Benchmarks of basic levels of income for medical practitioners are set in each regard.

* There is also a set of statistics referred to as "the Standard Whole Patient Equivalent per Practitioner". These statistics make reference to the gender and age make up of the patient population within a particular locality in order that some estimation may be made as to the number of times that a particular type of patient will consult a doctor within any year. The rationale being that some sections of the population consult doctors more than others and accordingly it will be possible to estimate likely doctor need within that locality.

* Whether or not a particular area has been designated an area of need by the relevant State Health Authority. As has already been indicated the Queensland Department of Health had determined that Bowen was an area of need.

11. The Department of Health and Aged Care issues guidelines for the issue of exemptions under section 3J of the Health Insurance Act. The policy rationale for the guidelines is said to arise "from the maldistribution of the medical workforce in Australia and the resulting difficulties experienced by some rural communities in accessing professional services from a medical practitioner." These guidelines have attached to them a number of policy-based criteria that are to be considered in the decision to grant an exemption. These criteria relate to whether or not the area where a person who is seeking a section 3J exemption to practise medicine is or is not an "area of workforce shortage."

12. As is I think axiomatic, the process followed by Ms Singh in granting an exemption pursuant to section 3J of the Health Insurance Act relied on reference by her to a quite complicated set of statistical and other data and the adherence by her to a protocol. After following this procedure and after reference to the various sets of statistics held by her Department, Ms Singh determined to issue the Doctors Taiwo with exemptions pursuant to section 3J.

13. However it should be made clear that none of the steps taken by Ms Singh in reaching her decision were prescribed by the Health Insurance Act itself and the guidelines to which reference has been made are not themselves part of the Act.

The application

14. It is this decision of Ms Singh made on the 8^th of January 2001 that Dr Chilcott (the applicant) seeks to review pursuant to section 5 of the Administrative Decision (Judicial Review) Act. On 5 July 2001 the applicant filed an application for an order of review of this decision in the Court. The applicant claimed to be aggrieved by the decision because:

"The requisite conditions required of the decision have not been properly investigated. Bowen was not and is not an area of workforce shortage. The decision exacerbates an over supply situation of general practitioners adversely affecting the Applicant's income."

15. Section 5 of the Administrative Decisions (Judicial Review) Act reads as follows:

Section 5 applications for review of decisions

a) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

i) that a breach of the rules of natural justice occurred in connection with the making of the decision;

ii) that procedures that were required by law to be observed in connection with the making of the decision were not observed;

iii) that the person who purported to make the decision did not have jurisdiction to make the decision;

iv) that the decision was not authorised by the enactment in pursuance of which it was purported to be made;

v) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

vi) that the decision involved an error of law, whether or not the error appears on the record of the decision;

vii) that the decision was induced or affected by fraud;

viii) that there was no evidence or other material to justify the making of the decision;

ix) that the decision was otherwise contrary to law.

b) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

i) taking an irrelevant consideration into account in the exercise of a power;

ii) failing to take a relevant consideration into account in the exercise of a power;

iii) an exercise of a power for a purpose other than a purpose for which the power is conferred;

iv) an exercise of a discretionary power in bad faith;

v) an exercise of a personal discretionary power at the direction or behest of another person;

vi) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

vii) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

viii) an exercise of the power in such a way that the result of the exercise of the power is uncertain; and

ix) any other exercise of a power that constitutes abuse of the power.

16. In his application Dr Chilcott gives as the grounds of his application the following:

a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;

c) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

17. Dr Chilcott has acted on his own behalf in these proceedings. He filed a number of affidavits on his own behalf in support of this application. These affidavits were as follows:

i) Of himself sworn on 4 July 2001;

ii) Of his wife Margaret Ann Chilcott sworn on 4 July 2001;

iii) Of himself sworn on 11 September 2001;

iv) Of himself sworn on 8 October 2001;

v) Of himself sworn on 14 December 2001.

18. Annexed to each of those affidavits were many other documents that Dr Chilcott had obtained. Dr Chilcott obtained some of these documents by means of the applicable Freedom of Information legislation. From these it can be gleaned that Dr Chilcott began corresponding with the Department of Health and Aged Care in December of 2000 in regards to this issue. He requested that he be provided with reasons in respect of Ms Singh's decision in regards to the Doctors Taiwo on 20 December 2000. Ms Singh provided him with these reasons on 27 June 2001. Thereafter on 4 July 2001 these proceedings were commenced.

19. Dr Chilcott appeared on his own behalf at the hearing of his application in Townsville on 17 December 2001. Mr Swan of counsel represented the respondent. The respondent relied on the following affidavit in support of her position:

i) Of Ingrid Cecile Singh sworn on 27 September 2001.

20. Ms Singh was the only witness who was required to give viva voce evidence. Mr Swan indicating to the court that he did not wish to cross-examine either Dr Chilcott or Mrs Chilcott. Mr Swan objected to the contents of much of Dr Chilcott's affidavits on the basis that much of the material contained within the affidavits was irrelevant. I agree with this assessment made by Mr Swan. However, in order to facilitate the hearing of the application, it was agreed that the Court, with the consent of both parties, would note Mr Swan's objections and let the matter proceed so that it might be completed in the time allocated for it.

21. In essence Dr Chilcott's complaint is that the decision of Ms Singh to grant the exemption to the two Doctors Taiwo enabling them to commence medical practice in Bowen at the Herbert Street Clinic in Bowen affects the economic viability of his (Dr Chilcott's) medical practise in Bowen. Dr Chilcott asserts that there is no unmet medical need in the Bowen area. On the contrary he asserts that Bowen is "over doctored". He claims that the Doctors Taiwo are his economic rivals and threaten his livelihood. As such, he claims that he is aggrieved by Ms Singh's decision and is entitled to bring his application for judicial review of the decision before this Court.

The standing of Dr Chilcott to bring the application

22. In order for Dr Chilcott to have standing to bring his application pursuant to section 5 of the Administrative Decisions (Judicial Review) Act it is necessary for him to be a person "aggrieved" by Ms Singh's decision. Pursuant to section 3(4) of the Administrative Decisions (Judicial Review) Act a reference to a person aggrieved by a decision includes a reference:

"to a person whose interests are adversely affected by a decision;"

23. The respondent contends that Dr Chilcott is not a person aggrieved by the decision of Ms Singh in this regard and as a result he has no standing to bring his application. It is submitted by the respondent that there is no evidence to indicate that Dr Chilcott's interests have been adversely affected by the decision.

24. On 24 July 2001 the respondent filed a notice objecting to the jurisdiction of the Court to try Dr Chilcott's application on the basis that he was not a person aggrieved by the decision of Ms Singh. This preliminary issue relating to Dr Chilcott's standing to bring the application must be determined before any further consideration of the other matters raised by Dr Chilcott in his application.

25. The various bases on which Dr Chilcott asserts that he is a person aggrieved by the decision of Ms Singh appear to be as follows:

* The decision affects his income as it brings about a situation where Bowen is "over-doctored", there being no proper ground on which to issue additional health care provider numbers within the Bowen area. By implication, the more doctors there are in Bowen, the less patients there are to go around between the pre-existing doctors there.

* He challenges the process by which Ms Singh determined that Bowen was a place of "work place shortage" and as such that it was appropriate for her to grant exemptions to the Doctors Taiwo. In short Dr Chilcott, in his various affidavits, asserts that the entire process adopted by Ms Singh was flawed and that the statistical benchmarks and other criteria applied by her are simply wrong.

* By implication, he asserts that for the process adopted by Ms Singh to be meaningful both he and other doctors already practising within the Bowen area should have been consulted by her as to whether or not, in their estimation, Bowen was an area of "work place shortage" in respect of the provision of medical services to the general population.

* He asserts that Ms Singh failed to take into account evidence that was available from him and other doctors in Bowen concerning the viability of medical practises in Bowen.

26. It is not necessary for a person seeking standing pursuant to section 5 of the Administrative Decisions (Judicial Review) Act to establish that he has a legal interest at stake in the making of the decision concerned. In Tooheys Ltd v Minister for Business & Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64 at 79 Ellicot J said as follows:

"The words `a person aggrieved' should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of a decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show grievance which will be suffered as a result of the decision complained of beyond that of an ordinary member of the public."

27. Presumably Doctor Chilcott contends that he has suffered a grievance beyond that of an ordinary member of the public as a result of Ms Singh's decision to grant additional provider numbers within the Bowen area. He asserts that his livelihood and the level of his income are threatened by the arrival in Bowen of the two Nigerian doctors and the possibility that they will successfully compete with him for patients within Bowen. However Dr Chilcott has not provided any firm evidence that his income has in fact been reduced by the advent of the Doctors Taiwo to Bowen or indeed is likely to be. He has not provided any financial details from his practice or indeed from any other practice in Bowen to this effect. The basis of his argument is that it must follow that if there are more doctors in Bowen then inevitably there must be a reduction in the level of income of the doctors who were practising in Bowen before the new doctors arrived. In my view this does not logically follow. There may be more competition for patients in Bowen but it does not follow that necessarily the patients will be divided along strict arithmetical lines between the doctors currently practising in Bowen. In any event Dr Chilcott has provided no evidence to support his assertion that his income has been so reduced as a result of Ms Singh's decision or, in my view, that it is likely to be.

28. In his material Dr Chilcott does not assert that the standard of health care available to patients in the Bowen area is likely to be adversely affected by the advent of the two new doctors in the area as a result of the decision of Ms Singh to grant them exemptions pursuant to section 3J of the Health Insurance Act. In my view, it cannot be said that Doctor Chilcott brings his application for any altruistic reason or for any political or social interest. He is not the representative of any patient rights group or similar lobby group. As I say, his motivation appears to be purely commercial and based on his assertion that the town of Bowen cannot support two additional doctors within it.

29. The phrase "interests are affected" was considered in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd [1994] FCA 996; (1994) 49 FCR 250 where at 272 Gummow J said as follows:

"Like the expression `a person aggrieved', the phrase `a person whose interests are adversely affected by the decision' and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review. The day is long gone when there was any general presumption that in such statutes the `interests' concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law. However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute. In each case the contents of the terms `affect' and `interest' are to be seen in the light of the scope and purpose of the particular statute in issue."

30. In Alpharm, the Court held that the purely competitive or economic interest a person had in protecting his market share or profitability from a competitor was not in itself sufficient to render the person "aggrieved", even if the decision ultimately could be said to have affected the person's interests. The test as to whether or not the person was so aggrieved, for the purposes of administrative or judicial review, flowed from an analysis of the subject matter of the Act pursuant to which the decision had been made and the type or zone of interests which were regulated or protected by that particular statute. It was also necessary to consider the subject matter and content of the decision under review in this context.

31. Alpharm was applied in Big Country Developments Pty Ltd v Australian Community Pharmacy Authority 60 FCR 85 where at 93 Lindgren J said as follows:

"Such broad notions as `person aggrieved' and `interests adversely affected' by administrative decisions under enactments are intended to be relevant to the scope and purpose of the statutes involved in particular cases and are to be construed accordingly...Although such considerations as to whether an adverse affection is a direct or remote result of a decision and whether it is substantial or not will often be relevant to the issue of standing under the AD(JR) Act, that Act does not indicate a priori that any one consideration is to be conclusive: judgement must be suspended until the considerations revealed to be relevant by the facts of the particular case can be taken into account..."

32. In Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 128 ALR 238 at 269 Gummow J said as follows:

"Section 5(1) of the AD(JR) Act operates in an ambulatory fashion over a wide area of federal law. Questions as to whether a particular applicant is `aggrieved' within the meaning of that provision arise in the context provided by the `enactment' under which the administrative `decision' in issue was made. The nature of the grievance and the justiciability of the complaint by the applicant concerning it will appear first by identifying the decision giving rise to the grievance and then by considering the enactment under which it was made."

33. The decision sought to be challenged in the present case was the exemption granted to the two Nigerian born doctors pursuant to section 3J of the Health Insurance Act. In this context it is necessary to consider the purpose, scope and nature of the Health Insurance Act.

34. The long title of the Health Insurance Act is "an Act providing for Payments by way of Medical Benefits and Payments for Hospital Services and for other purposes". Accordingly an analysis of the Act indicates that the primary purpose of it is to provide a system whereby members of the Australian public may have access to health care that is to a major degree subsidised by government funding. It is the legislative basis for the Medicare Benefits System. The focus of the Act is the potential benefit that may thus be accorded to the Australian public by such a system. The Act is dominated by public interest concerns. The Act does not deal with such matters as the regulation of competition between the providers of medical services or indeed seek to set limits on the specific numbers of medical practitioners entitled to practise within Australia. Indeed the purpose of the Act would appear to me to be aimed at facilitating or increasing the degree of access of members of the Australian public to medical services rather than the reverse.

35. Specifically section 3J of the Act deals with the entitlements and rights of persons who "entered Australia under a temporary visa for the principal purpose of either practising as a medical practitioner". Section 3K of the Act gives those individuals only a right of review in respect of any determination made by the Minister under section 3J.

36. The decision of which Doctor Chilcott complains specifically affected the two Nigerian born doctors who sought the exemption under section 3J of the Health Insurance Act. Pursuant to section 3K of the Act it was they and they only who were granted an entitlement to seek a review of the Minister's decision not to grant them such an exemption. No such right was conferred by the Act on any other person.

37. In such circumstances, I am unable to find how it can be said that Doctor Chilcott is a person aggrieved by the decision of Ms Singh, the Minister's delegate in respect of the power vested in him pursuant to section 3J of the Health Insurance Act. Any consequences of the decision as far as Doctor Chilcott is concerned is, in my view, too remote from this decision to give him sufficient standing to found the application he has brought. In the overall context provided by the Health Insurance Act I am unable to see how the Act itself can be used as a means of recognising the interest which Doctor Chilcott has in preventing other medical practitioners from entering practise in the same geographical locale as him. Such an interest is not relevant, to my mind, to the specific process granted to medical practitioners who entered this country under temporary residents' visa for the purpose of practising as medical practitioners. In my view, such an interest is indeed in conflict with the Act, which is aimed at promoting the access of members of the Australian public to medical services.

38. Accordingly, it is my view that the Applicant has not established that he is a person who is aggrieved by the decision of Ms Singh and for that reason he has no standing to bring his application pursuant to the Administrative Appeals (Judicial Review) Act and for that reason his application must fail.

39. Notwithstanding this determination, on the evidence before me, I would still have been inclined to dismiss the application for the following reasons.

40. It is clear that a right to judicial review of an administrative decision does not amount to an appeal on the merits in respect of the decision itself. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40:

"The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned."

41. As has already been indicated, the Applicant relies on three grounds to support his application, firstly that there was a breach of natural justice in connection with the making of the decision, secondly that proper procedures were not followed in respect of the making of the decision and thirdly that the making of the decision was an improper exercise of power.

Was there a breach of natural justice?

42. The decision Ms Singh was required to make pursuant to section 3J of the Act applied primarily to the Doctors Taiwo and their entitlement as non-resident medical practitioners to seek an exemption pursuant to the section. The decision impacted directly on their ability to earn a living as medical practitioners within Australia. Clearly they were entitled to be heard in respect of the decision and to be accorded procedural fairness in respect of the making of the decision. However, in my view, given the context of that power vested in Ms Singh it was not incumbent upon her to seek the views of any other person or persons in respect of the matter apart from the two doctors directly concerned, namely the two Doctors Taiwo.

43. The existence of a right to procedural fairness is something that must be inferred from the terms of the relevant legislation concerned. In this regard see Kioa v West [1985] HCA 81; (1985) 159 CLR 550. In her evidence Ms Singh indicated that there were some 15,000 relevant areas within Australia relating to the provision of medical services and some 24,000 medical practitioners within them. Her department dealt with some 1,500 applications for exemption each year. If it were a requirement that the decision maker pursuant to section 3J had to consult with each of these medical practitioners in respect of each of these applications it would, in my view, make the process of decision making in respect of such exemptions slow, complicated and potentially expensive and as such would possibly pose a disservice to patients and other consumers of health services, particularly in areas where doctors are in short supply.

44. As was said by Wilcox, Foster and Whitlam JJ in Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589 at 597:

"... we do not know of any general principle to the effect that a statutory authority charged with the duty of considering an application is obliged by the principles of procedural fairness to notify and hear everybody whose economic interests may be damaged by an approval. To promulgate a general rule imposing such an obligation would be to visit upon statutory decision makers a potentially massive task of indeterminate reference."

45. In any event Ms Singh did receive submissions from the applicant in respect of the matter. In her affidavit Ms Singh confirmed that she considered two letters that Doctor Chilcott had written to the Health Workforce Section of the Department of Health and Aged Care on

20 December 2000. In those letters Doctor Chilcott asserted his belief that Bowen was a town that was over-doctored and as such his income would be affected by the granting of section 3J exemption. Ms Singh also considered submissions that Doctor Chilcott had forwarded to his local member of the Federal Parliament.

46. In these circumstances, it is my view, that it cannot be said that Doctor Chilcott has not been afforded natural justice in respect of the decision made by Ms Singh pursuant to section 3J of the Act even though for the reasons that have already been provided I am not convinced that Ms Singh was under a legal obligation to receive the submissions.

Were improper procedures followed by Ms Singh?

47. Section 3J of the Act does not provide any specific procedures that are required to be followed in respect of the determination as to whether or not to grant an exemption pursuant to the section. Accordingly, in my view, it cannot be said that Ms Singh followed any improper procedures in coming to the decision she did.

Was the decision an improper exercise of power?

48. The main thrust of Doctor Chilcott's submission in this regard seems to be that Ms Singh failed to take into account a number of relevant considerations into account. The chief of these is that she failed to consider information that was available to her via Doctor Chilcott concerning the viability of medical practices in Bowen. As I understand, it is also Doctor Chilcott's position that the information that Ms Singh did take into account namely the Full Time Equivalent Medical Practitioner and the Full Time Workload Equivalent Medical Practitioner statistics as derived from Medicare billing statistics for Bowen; the Rural and Remote Medical Area classification for Bowen; the Standard Whole Patient Equivalent Per Practitioner again derived from Medicare billing statistics for Bowen and Bowen's designation as an area of need by the Queensland Department of Health are erroneous considerations.

49. As has already been indicated, it is not the purpose of a process of judicial review such as this for the Court to substitute its judgement for the judgement of the initial decision-maker. In reaching her decision Ms Singh was guided by the guidelines which had been issued by the Department to assist temporary resident doctors applying for exemption pursuant to section 3J of the Act. It should be emphasised that the guidelines are not themselves part of the Act and they are designed to assist applicants for such exemptions. The guidelines do not purport to impose restrictions or requirements in the way in which the power conferred by section 3J is to be exercised. In this regard the guidelines deal with such matters as the processing of applications; the necessary documentation that needs to accompany an application; how applications are processed and the rights available to applicants for review.

50. Under the heading "Policy Guidelines For Determining A District of Workforce Shortage Necessary For the Grant of an Exemption" appears the following:

"The requirement that a workforce shortage exist in a district before an exemption can be granted for a practice location is determined by examining material relevant to the population need for professional services of the type that the applicant has proposed to perform in the district. To assist in an understanding of the population needs of the particular district, the decision-maker may:

* seek specific information from authorities such as State health departments and Rural Workforce Agencies;

* may examine Medicare statistics and other relevant health workforce data (for example, Australian Medical Workforce Advisory Committee reports, Australian Bureau of Statistics data);

* for the purpose of an exemption decision, this may mean examining the numbers of other medical practitioners in the district with the same or similar skills to the applicant;

* in the case of a specialist, information may be sought as to the numbers of other practitioners practising in either the same recognised speciality as the applicant, or providing services similar to the applicant's specialty services."

51. It is clear that the number of medical practitioners in any given area is a matter that the decision-maker may take into account. It is not a matter that must be taken into account. The guidelines themselves are not in my view mandatory prescriptions. However they do indicate to my mind that the matters that Ms Singh took into account in reaching her decision to grant an exemption to the Doctors Taiwo were reasonable ones for her to take into account.

52. Doctor Chilcott does not accept the data upon which Ms Singh relied. However, in my view the data to which she referred came from authoritative sources and was such as to clearly enable her to form the view, as she did, that Bowen was a place of workplace shortage. It cannot be said that the conclusions that Ms Singh has reached in this matter are so divorced from reality as to be beyond anything a reasonable decision-maker could conclude. It is not the function of the Court to review the conclusions the decision-maker has made in respect of data available to her from such authoritative sources and substitute its judgement for hers. Doctor Chilcott's real grievance is that the statistics were not taken into account in a way that he would have wished. That does not render the statistics that Ms Singh consulted invalid or as a result her decision erroneous. In any event it is not a strict requirement before a decision in respect of the granting of an exemption under section 3J of the Act is made that it be established that the exemption relates to an area of workplace shortage.

53. Accordingly I am not of the view that Ms Singh's decision amounts to an improper exercise of power.

What remedy?

54. Section 3J of the Health Insurance Act has been repealed by section 3 of the Health Legislation Amendment (Medical Practitioners' Qualifications and Other Measures) Act 2001. The section was repealed from 18 October 2001. Accordingly even if I was of the mind that the decision was an improper one it would not be possible to remit the matter back for fresh decision. A declaration only could be made.

55. For all these reasons I am of the view that Doctor Chilcott's application must fail and that his application must be dismissed.

I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: Lynnette Chin

Date: 19 March 2002