Australian Society of Otolaryngology Head and Neck Surgery Limited v Australian Health Practitioner Regulation Agency [2024] FCA 995

FEDERAL COURT OF AUSTRALIA

Australian Society of Otolaryngology Head and Neck Surgery Limited v Australian Health Practitioner Regulation Agency [2024] FCA 995

ORDERS

Order made by: PERRY J
DATE OF ORDER: 30 August 2024

THE COURT ORDERS THAT:

1. The further amended originating application filed on 16 June 2023 be dismissed.
2. The first applicant is to pay the respondent’s costs as agreed or taxed.
3. Costs, including of the application to intervene, are otherwise reserved.
4. On or before 4:00pm on Friday 13 September 2024, the parties, including the interveners, are to indicate whether they wish to be heard separately on costs.
5. In the event that agreement between the parties and/or between the parties and the interveners as to the appropriate orders for costs is not reached:

(a)       the parties and interveners are to agree a timetable by 4:00pm on Tuesday 17 September 2024 in which short submissions on, and any evidence with respect to, costs are to be filed and served; and

(b)       subject to further order of the Court, any issue as to costs is to be determined on the papers.

6. Insofar as may be necessary, pursuant to rule 36.03(b) of the Federal Court Rules 2011 (Cth), the date by which any notice of appeal is to be filed be fixed as the date 28 days after final orders are made in respect of costs.
7. Liberty to apply.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.  INTRODUCTION

1             The first applicant is the Australian Society of Otolaryngology Head and Neck Surgery Limited (ASOHNS).  ASOHNS is a company limited by guarantee and is the representative organisation for specialist Otolaryngology Head and Neck surgeons (also called “ear, nose and throat surgeons”) in Australia.  ASOHNS is a national body and twelve of its members reside in the Australian Capital Territory (ACT).  A “Specialist otolaryngologist – head and neck surgeon” is a person registered as such under Part 7 Division 2 of the Health Practitioner Regulation National Law, relevantly, as applied by the Health Practitioner Regulation National Law (ACT) Act 2010 (ACT) (ACT National Law) (registered otolaryngologist).

2             The second and third applicants, Dr Zenia Chow and Dr Timothy Makeham, are registered otolaryngologists and members of ASOHNS.  It is common ground that Dr Chow and Dr Makeham are both eminently qualified to perform facial plastic surgery.  Dr Chow also sat on a committee in July 2022 which had responsibility for updating the facial plastics module in the curriculum for the Otolaryngology Head and Neck Surgery Surgical Education and Training Program (the specialist training program for otolaryngologists).  The module as amended by the committee was adopted by the Board of Otolaryngology, Head and Neck Surgery, Royal Australasian College of Surgeons.

3             The respondent, the Australian Health Practitioner Regulation Agency (AHPRA), is responsible for the overall management and administration of the scheme under the National Law.  Its functions include developing procedures for the national registration and accreditation scheme under the National Law.  It also prosecutes criminal offences in the courts under the National Law.

4             Various members of ASOHNS, including Dr Chow and Dr Makeham, wish to describe themselves to patients “an ‘otolaryngologist and facial plastic surgeon” or an “otolaryngologist and facial plastic and reconstructive surgeon” (the Combined Expressions).  ASOHNS has corresponded with AHPRA, on behalf of its members, disagreeing with AHPRA’s view that to do so would place its members in breach of provisions of the National Law.  It has also sought AHPRA’s agreement that advertising by members in accordance with proposed Advertising Guidelines prepared by the ASOHNS in March 2022 would be lawful.

5             There is no dispute that a medical practitioner is required to be competent in facial plastic surgery in order to qualify as a specialist otolaryngologist.  This is because there is a compulsory “Facial Plastics” module in the Otolaryngology Head and Neck Surgery Curriculum.  There is also no dispute that, once accredited by the Australian Medical Council, otolaryngologists are qualified to perform facial plastic surgery.  While plastic surgery is a specialisation for the purposes of the National Law, facial plastic surgery is not.

6             However, AHPRA has threatened regulatory action against registered otolaryngologists who describe themselves as “facial plastic surgeons”.  AHPRA contends that advertising to that effect would contravene provisions of the National Law concerning use of a specialist title and registration.

7             By a further amended application filed on 16 June 2023, the applicants seek declarations that the use of the title “Facial Plastic Surgeon” by a registered otolaryngologist, who is not registered as a “specialist plastic surgeon”, in accordance with ASOHNS’ proposed Advertising Guidelines would not contravene various provisions of the National Law as applied by the ACT National Law:  declarations 2, 5, 8 and 11 (the Guidelines Declarations).  The provisions in question are:

(1)  section 115(1) (restriction on use of specialist titles);

(2)  section 118(1) (claims by persons as to specialist registration);

(3)  section 119(1) (claims about type of registration in recognised speciality); and

(4)  section 133(1) (false, misleading or deceptive advertising)

(the relevant provisions).

8             A contravention of ss 115(1), 118(1) and 133(1) constitutes a criminal offence and, save for a contravention of s 133(1), is potentially punishable by a term of imprisonment of up to three years.  A breach of s 133(1) may result in the imposition of a pecuniary penalty only.  A contravention of s 119(1) does not constitute an offence but may attract disciplinary action:  see s 119(2).  Plainly, the consequences for those who contravene any of these provisions are serious.

9             The applicants also seek declarations that Dr Makeham:

(1)       would not contravene s 115(1) or s 118(1) of the ACT National Law “merely by describing himself to patients as an ‘otolaryngologist and facial plastic surgeon’” (declarations 3 and 6);

(2)       would not contravene s 119(1) of the ACT National Law “merely by describing himself to patients as an ‘otolaryngologist and facial plastic surgeon’” (declaration 9); and

(3)       “would not advertise in a way that is false, misleading or deceptive, or is likely to be misleading or deceptive, so as to contravene section 133(1) of the ACT National Law, merely by describing himself to patients as an ‘otolaryngologist and facial plastic surgeon’” (declaration 12).

10           Declarations are sought to the same effect with respect to Dr Chow describing herself “on her website and/or social media accounts as an ‘otolaryngologist and facial plastic and reconstructive surgeon’” (declarations 4, 7, 10 and 13).  It is convenient to describe those declarations sought which relate to Dr Chow and Dr Makeham as the Chow/Makeham Declarations.

11           Declaration 1 in the further amended application was omitted.

12           As senior counsel for ASOHNS somewhat colourfully explained, otolaryngologists “are cursed with a specialty” that no one understands.  He therefore submits that the purpose in seeking the declarations is to enable otolaryngologists to more accurately describe a core part of their expertise, thereby facilitating better access to their health services by members of the public.

2.  SUMMARY OF CONCLUSIONS

13          The issues between the parties, as they ultimately emerged at hearing, can be summarised as follows:

(1)       Does the Court have jurisdiction to entertain the application insofar as it seeks the Guidelines Declarations?

(2)       Should the Court in the exercise of discretion decline to grant the Chow/Makeham Declarations and, if the Court has jurisdiction, the Guidelines Declarations?

(3)       If the answer to (2) is yes, should the Court nonetheless consider the substantive issues in obiter?

(4)       If the answer to (2) is no, are there substantive grounds for granting the declaratory relief?

14           For the reasons that follow, I consider that the first issue must be answered “no”.  The Guidelines Declarations do not give rise to a “matter” for the purposes of Ch III of the Constitution.  This is because they seek an advisory opinion which the Court lacks jurisdiction to grant.

15           In relation to the second issue, the Chow/Makeham Declarations should be refused in the exercise of discretion.  I have reached this conclusion having regard to a number of considerations.  These include:

(1)       the declarations lack a sufficient factual foundation and do not arise from a sufficiently concrete dispute;

(2)       to make a declaration in the context of civil proceedings about whether or not an offence would be committed, or conduct would contravene a disciplinary provision, lacks utility and may be liable to mislead; and

(3)       it would also potentially create incoherence and real or apparent inconsistencies between civil decisions, on the one hand, and criminal and disciplinary decisions, on the other hand.

16           In these circumstances, I also do not consider that it would be appropriate to give obiter consideration to the substantive issues as that would potentially give rise to the same kinds of difficulties.  Accordingly, issue 3 should be answered “yes” and issue 4 does not arise.

17           Finally, I should note that I am indebted to the legal representatives for both parties and the interveners for their very great assistance.

3. SECTION 78B NOTICES

18           I note that notices were filed and served in accordance with s 78B of the Judiciary Act 1903 (Cth) with respect to the question of whether the proceedings gave rise to a “matter” in a constitutional sense.  None of the Attorneys-General indicated that they wished to intervene.

4.  THE APPLICATION BY THE AUSTRALASIAN SOCIETY OF AETHETIC PLASTIC SURGEONS TO INTERVENE

19           The Australasian Society of Aesthetic Plastic Surgeons (ASAPS) and Dr Timothy Edwards applied for leave to intervene by an interlocutory application filed on 20 December 2023.  ASAPS is a not-for-profit company which seeks to further the interests and education of plastic surgeons who practice aesthetic plastic surgery in Australia and New Zealand.  Relevantly, ASAPS was established to:

(a)       develop the field of aesthetic plastic surgery;

(b)       promote and maintain the highest principles of Aesthetic Plastic Surgical practice and ethics; and

(c)       inform, educate and advise the public regarding all aspects of Aesthetic Plastic Surgery clearly, honestly and comprehensively.

20           The second proposed intervener, Dr Edwards, is a registered medical practitioner and registered specialist plastic surgeon and the president of ASAPS.

21           In seeking the Court’s leave to intervene in the proceedings, the proposed interveners submitted that their contribution would be useful and different from the parties (Federal Court Rules 2011 (Cth) r 9.12(2)(a) (FCR)), because their submissions:

(1)       are provided from a different perspective, being that of (specialist) plastic surgeons, which is the title that the applicants seek to use;

(2)       address issues relevant to construction which were not addressed by the parties, including recent amendments to the National Law; and

(3)       raise factual issues relevant to the construction of the National Law not raised by the parties, being objective data about public perception of the use of the expression “plastic surgeon”.

22           The applicants did not oppose the application for leave to intervene to make submissions on the issues of statutory construction.  However, the applicants opposed a grant of leave that permitted the proposed interveners to adduce evidence, due to the lateness of the evidence upon which the proposed interveners sought to rely in support of their submissions on the substantive issues in dispute.  The applicants submitted they had not been given a sufficient opportunity to file evidence in response.  I agree.

23           By orders made on 31 January 2024, I granted the ASAPS and Dr Edwards leave to intervene in the proceedings pursuant to r 9.12 of the FCR.  The intervention was limited to written submissions in terms of the proposed outline of submissions exhibited to the affidavit of Dr Edwards affirmed on 20 December 2023, and brief oral submissions during the hearing.  However, as the leave did not extend to the provision of evidence by the interveners, I have disregarded the intervener’s outline of submissions to the extent to which the submissions relied upon that evidence.

5.  STANDING AND SUBJECT MATTER JURISDICTION

24           ASOHNS initially sought declaratory relief that a person who is registered under Part 7 Division 2 of the National Law as applied by the ACT National Law as a “Specialist otolaryngologist – head and neck surgeon” does not contravene ss 113, 115, 118, 119 and 133 of the National Law by using the title “Facial Plastic Surgeon” after “Otolaryngologist”.  At this stage, ASOHNS was the only applicant.  As a result, AHPRA contended that the Court lacked jurisdiction to grant the relief claimed on two grounds:  first, the application lacked the requisite character of a “matter” for the purposes of Ch III of the Constitution; secondly and related to that, ASOHNS lacked standing for the purposes of Ch III.

25           On 28 April 2023, the applicants filed an amended originating application joining Dr Chow and Dr Makeham to the proceedings as second and third applicants, and amending the relief sought.  In their further amended originating application filed on 16 June 2023, the applicants further amended the relief sought so as to seek the Chow/Makeham Declarations and the Guidelines Declarations.

26           The issues as to jurisdiction and standing were significantly reduced following the joinder of Dr Chow and Dr Makeham for the following reasons.

27           First, AHPRA correctly accepted that the Court had subject-matter jurisdiction with respect to the proceedings based on the Full Court’s decision in Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451.  In that case, the question arose as to whether s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the Cross-Vesting Act) conferred jurisdiction on the Federal Court to hear and determine claims commenced in the ACT Registry of the Court, and which arose in the ACT under the common law and a law of the ACT.  The Full Court unanimously held that the Court had jurisdiction.  As Robertson J (with whose reasons Bennett and Perram JJ agreed at [1] and [3] respectively) explained at [35]:

[Section] 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 itself, together if necessary, with s 19 of the Federal Court of Australia Act which provides that the Court has such original jurisdiction as is vested in it by laws made by the Parliament, conferred jurisdiction on the Federal Court:  Re Wakim [ex parte McNally (1999) 198 CLR 511] at [105], [107], [108], [114].  That provision is a law made by the Parliament within s 76(ii) of the Constitution.  It picks up, as Commonwealth law, the jurisdiction of the Australian Capital Territory Supreme Court to hear and determine the present dispute:  Ruhani [v Director of Police [2005] HCA 42; (2005) 222 CLR 489] at 527.

28           Similarly, Perram J explained at [2] that:

In effect, s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) is to be understood as creating surrogate Commonwealth law by reference to the jurisdiction of the ACT Supreme Court and thereafter providing a law of the Commonwealth under which matters may then be seen to arise.  It is both the source of the underlying right as surrogate Commonwealth law under s 122 of the Constitution of the Commonwealth and also a law defining the jurisdiction of this Court under s 77(i).

29           Secondly, AHPRA accepted that Dr Chow and Dr Makeham had standing to seek declaratory relief, and that the Court has jurisdiction to make the Chow/Makeham Declarations with respect to their proposed future conduct:  Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 at 305 (Barwick CJ).  This concession was correctly made, given the unchallenged evidence of Dr Chow and Dr Makeham as to the nature of their interest in the declarations sought.

30           Turning first to Dr Chow’s standing, before late 2021 Dr Chow used the professional titles “Otolaryngologist Head and Neck and Facial Plastic and Reconstructive Surgeon” and “ENT and Facial Plastic and Reconstructive Surgeon” interchangeably in advertising her practice.  The hospitals at which she consulted also referred to her in the same way on their websites.  At that time and at the time of trial, Dr Chow advertised her practice through her own website, in profile pages on hospital websites, and on social media such as Instagram.

31           On 19 November 2021, AHPRA wrote to Dr Chow advising that, in AHPRA’s view, it was false and misleading for Dr Chow to advertise herself as a “facial plastic surgeon” and “facial plastic and reconstructive surgeon” when she did not hold specialist registration in “Plastic Surgery” under the National Law and in doing so, she was misrepresenting her specialist registration in breach of the National Law.  AHPRA also provided Dr Chow with alternative suggested language, namely:

• Specialist otolaryngologist with extensive experience in facial plastic and reconstructive surgery; and/or
• Specialist otolaryngologist (Ear, nose and throat surgeon) with substantial experience in facial plastic and reconstructive surgery; and/ or
• Ear, nose and throat surgeon with substantial experience in facial plastic and reconstructive surgery.

32           Given its position, AHPRA advised Dr Chow that she needed to review all of her advertising to ensure that it did not include specialist references, such as use of the title “plastic surgeon”.

33           On 24 December 2021, Dr Chow replied to AHPRA explaining why she disagreed with its characterisation of her use of the impugned titles.   AHPRA responded on 7 January 2022 reiterating its view and granted Dr Chow an extension of time within which she was required to make the necessary changes to her advertising.  Although Dr Chow did not agree with AHPRA that her advertising contravened the National Law, she did not wish to be the subject of a prosecution or regulatory action.  Dr Chow therefore changed the reference to her title in her advertising, as did St Vincent’s Private Hospital.

34           Furthermore, while Dr Chow is not registered in the ACT, AHPRA accepted that she has standing by virtue of the extraterritorial application of the National Law.  In this regard, as I shortly explain, the National Law creates a national scheme of registration so that a medical practitioner who is registered, for example, in Victoria, can also practise in the ACT.  Additionally, Dr Chow’s past and proposed future conduct includes the publication of materials on the internet which can be accessed by patients in each jurisdiction.

35           With respect to Dr Makeham’s standing, Dr Makeham is registered in the ACT.  Unlike Dr Chow, neither Dr Makeham nor the hospitals at which he practices have advertised him as an “otolaryngologist and facial plastic surgeon”.  However, he explained that, while he did not exclusively practice in the field of plastic surgery:

It would be useful for me to describe myself as an “otolaryngologist and facial plastic surgeon” when engaging with patients who require reconstructive surgery.  I do not presently do so as I understand that AHPRA takes the view that such conduct would contravene the National Law.  If it did not involve a contravention of the National Law, I would refer to myself as a “facial plastic surgeon” [in accordance with ASOHNS’ proposed Advertising Guidelines] when performing facial plastic surgery services such as reconstructive rhinoplasty.

36           Thirdly and related to this, AHPRA no longer disputed ASOHNS’ standing after Dr Chow and Dr Makeham were joined, submitting that:

…although the declarations require the Court to determine questions of fact and law with an unsatisfactory degree of abstraction, they are nevertheless tethered — sufficiently for jurisdictional purposes — to a real controversy in which both doctors have standing….

37           Finally, however, AHPRA maintained its position that the Guidelines Declarations do not give rise to a matter and thereby enliven federal jurisdiction.  It also contended that the Court should decline to exercise its discretion to grant declaratory relief with respect to the Chow/Makeham Declarations.

6. THE LEGISLATIVE SCHEME

38           While I ultimately find that the application should be dismissed and the substantive issues of construction should not be addressed even in obiter, it is helpful to begin by outlining the relevant legislative framework.  This provides necessary context to the parties’ submissions on jurisdiction and discretion, and my findings on those issues.  It also explains the significance in the legislative scheme of the provisions which are the subject of the declarations sought by the applicants.

6.1  The National Framework and functions of entities administering the National Law

39           The National Law was developed cooperatively among states and territories in response to a recommendation by the Productivity Commission to establish a national scheme for the regulation of health practitioners:  see Productivity Commission, Australia’s Health Workforce: Productivity Commission Research Report (22 December 2005) chs 6–7 (the Productivity Commission Report).  The National Law is set out in the Health Practitioner Regulation National Law Act 2009 (Qld), which is picked up and enacted as in force from time to time by the other states and territories with some jurisdictional variations.  In the ACT, the National Law is applied by the ACT National Law.

40           Each state and territory Act is intended to operate extraterritorially.  Thus, s 8 of the ACT National Law provides that:

It is the intention of the Parliament of this jurisdiction that the operation of this Law is to, as far as possible, include operation in relation to the following—

(a)        things situated in or outside the territorial limits of this jurisdiction;

(b)        acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction;

(c)        things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction.

41           The National Law was designed to allow “health practitioners to have a single registration recognised anywhere in Australia and provide for uniform standards for the registration of health practitioners”:  Explanatory Memorandum, Health Practitioner Regulation National Law (Surgeons) Amendment Bill 2023 (Qld) 1.  Furthermore, to achieve consistency across the national framework, the National Law is to be interpreted and applied with regard to the objectives and guiding principles set out in ss 3 and 3A:  see s 4.  Relevantly, in the ACT, s 6 of the ACT National Law displaces certain territory legislation.  Instead, sch 7 (Miscellaneous provisions relating to interpretation) to the ACT National Law sets out its own provisions for interpreting the Act and statutory instruments.  Accordingly, while this case was filed in the ACT, and any declaration would directly concern the ACT National Law, I accept that the declarations would be relevant to interpreting the National Law throughout Australia.

42           The National Law is administered by various entities.

43           First, the Ministerial Council (previously known as the Council of Australian Governments (COAG) Health Council and now referred to as the Health Ministers’ Meeting) is constituted by Ministers of the governments of the participating states and territories, and the Commonwealth, with portfolio responsibility for health:  ACT National Law s 5 (definition of ‘Ministerial Council’).  The Ministerial Council has power to given directions to the National Agency and National Boards about policies to be applied in exercising their functions under the ACT National Law:  s 11 of the ACT National Law.  Relevantly for present purposes, the Ministerial Council may, on the recommendation of the National Board established (relevantly) for the medical profession, “approve a list of specialities for the profession” and “approve one or more specialist titles for each specialty in the list”: s 13(2)(a) and (b) respectively of the ACT National Law.

44           Secondly, the National Boards are established under Part 5 of the National Law, with each National Board overseeing a particular health profession.  “Health profession”, as defined in s 5 of the National Law, means (relevantly) the medical profession and includes a recognised specialty within the profession.  In turn, a “recognised speciality” is “a speciality in a health profession that has been approved by the Ministerial Council under s 13(2)”.  A “specialist health practitioner” is a person registered under the National Law in a recognised speciality:  s 5 of the ACT National Law.

45           The functions of a National Board established for a health profession set out in s 35(1) of the ACT National Law include:

(a)        to register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession;

(b)        to decide the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession;

(c)        to develop or approve standards, codes and guidelines for the health profession, including—

(i)         the approval of accreditation standards developed and submitted to it by an accreditation authority; and

(ii)        the development of registration standards for approval by the Ministerial Council; and

(iii)       the development and approval of codes and guidelines that provide guidance to health practitioners registered in the profession;

(d)        to approve accredited programs of study as providing qualifications for registration or endorsement in the health profession;

…

(k)        to make recommendations to the Ministerial Council about the operation of specialist recognition in the health profession and the approval of specialties for the profession;

…

(o)        to give advice to the Ministerial Council on issues relating to the national registration and accreditation scheme for the health profession…

46           Thirdly, s 23 of the ACT National Law establishes AHPRA (also referred to as the National Agency) as an agency that represents the state or territory:  s 23(1) and (3).  Section 7(1) provides that every AHPRA created in each state and territory will act as “one single national entity, with functions conferred by this Law as so applied”.  APHRA’s functions under the ACT National Law include to:

(1)       “establish and administer an efficient procedure” for “matters relating to the registration of registered health practitioners” (s 25(e));

(2)       “establish an efficient procedure for receiving and dealing with notifications against persons who are or were registered health practitioners” (s 25(i)); and

(3)       “do anything else necessary or convenient for the effective and efficient operation of the national registration and accreditation scheme” (s 25(ka)).

47           By s 4 of the ACT National Law, AHPRA is to exercise its functions under the National Law having regard to the objectives and guiding principles contained in the National Law.

48           In practice, AHPRA or, where the charge is on indictment, the Director of Public Prosecutions, prosecute criminal offences in the courts.  By contrast, disciplinary conduct is dealt with by the National Boards, including by proceedings commenced in the applicable responsible tribunals.  In the case of the ACT, the appropriate tribunal is the ACT Civil and Administrative Tribunal.

6.2  Objectives and purposes

49           The objectives of the national registration and accreditation scheme established by the National Law are set out in s 3(2) of the ACT National Law and include:

(a)        to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and

…

(e)        to facilitate access to services provided by health practitioners in accordance with the public interest…

50           These objectives are supported by the main guiding principle set out in s 3A(1):

The main guiding principle of the national registration and accreditation scheme is that the following are paramount—

(a)        protection of the public;

(b)        public confidence in the safety of services provided by registered health practitioners and students.

51           Section 3A(2) then identifies “other guiding principles of the national registration and accreditation scheme” which include:

(a)        the scheme is to operate in a transparent, accountable, efficient, effective and fair way;

…

(c)        restrictions on the practice of a health profession 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.

(Emphasis added.)

6.3 Accreditation, specialities and specialist registration

52           The Productivity Commission Report explained that the process of accreditation “assesses and evaluates education and training courses and institutions to ‘guarantee’ standards and consistency of health professional education and training” and “is complemented by registration which gives professionals the legal right to practise”:  at p 111 (emphasis omitted).  These concepts find expression in Parts 6 and 7 of the ACT National Law and underpin the statutory significance of the title protection system.  As the Productivity Commission Report further explained (at pp 111–112):

Accreditation stands at the interface between what the community and employers need from the health workforce, and the education and training that provides the workforce with the skills and competencies to meet those needs …

The process of accreditation is complemented by registration — this legally recognises practitioners’ qualifications, experience and ‘character’ as being suitable for practise. Its purpose is to help overcome the information asymmetry between health professionals and their patients, and to provide assurances of quality and safety.

53           The starting point for considering the title protection system is s 13(2) of the ACT National Law.  Pursuant to s 13(2), the Ministerial Council may, on the recommendation of the relevant National Board (being, relevantly, the Medical Board of Australia (MBA)), “approve a list of specialties for the profession” and “approve one or more specialist titles for each specialty in the list.”  The relevant profession here is “the medical profession” being (as I have earlier explained) a health profession for which specialist recognition operates under the National Law:  s 13(1).

54           Relevantly, a list was approved by the COAG Health Council (now the Health Ministers’ Meeting) on 27 March 2018 pursuant to the National Law which took effect from 1 June 2018.  That list is reproduced in full at Annexure A to this judgment.

55           The list identifies 23 “Specialt[ies]” including general practice, obstetrics and gynaecology, and surgery, “Fields of speciality practice” within some (but not all) of the specialities, and “Specialist titles”.  Relevantly, the entries with respect to the speciality “Surgery” are as follows:

56           It was not in issue that, while the fields of specialty practice can be described as a subspecialty, they are a specialty for the purposes of the National Law.

57           By operation of ss 113, 115, 116, and 119, the lawful use of specialist titles hinges upon registration of the person in a recognised specialty.  In turn, as AHPRA submits, registration is an essential and core protective component of the regulatory regime.

58           The process for specialist registration is set out in Division 2 of Part 7 of the ACT National Law.  Specifically, under s 57(1), an individual is eligible for specialist registration in a recognised speciality only if, among other things:

(a)        the individual is qualified for registration in the specialty; and

(b)        the individual has successfully completed—

(i)         any period of supervised practice in the specialty required by an approved registration standard for the health profession; or

(ii)        any examination or assessment required by an approved registration standard for the health profession to assess the individual’s ability to competently and safely practise the specialty; and

…

(e)        the individual meets any other requirements for registration stated in an approved registration standard for the specialty.

59           Section 58 of the ACT National Law in turn provides that an individual is qualified for registration in a recognised specialty if, relevantly, the individual holds an approved qualification for the specialty.  An approved qualification for a health profession means “a qualification obtained by completing an approved program of study for the profession”:  s 5 of the ACT National Law.  An approved program of study means an “accredited program of study” which, relevantly, is approved under s 49(1) by the MBA. For this purpose, the Australian Medical Council Limited (AMC) has accredited the Royal Australasian College of Surgeons (RACS) and the MBA has approved a program of study by RACS for the speciality of otolaryngology head and neck surgery.  If that program of study is completed, an individual is qualified and therefore eligible for specialist registration. An application for registration may be made pursuant to s 77(1).

60           As earlier mentioned, “Facial Plastics” is taught as one module in the Specialty Training Program and is, therefore, part of the qualification that enables eligibility for specialist registration as a specialist otolaryngologist head and neck surgeon or OHNS.  In studying the “Facial Plastics” module, trainees learn about surgeries of the ear (otoplasty and reconstruction); nose (septorhinoplasty); facial nerve disorders; periorbital conditions; skin cancer; reconstruction of facial defects and the facial skeleton; and aesthetic surgery.  In light of this training, it was not in issue that, in line with international practice, specialist OHNS are qualified to perform facial plastic surgery even though not all otolaryngologists practice in facial plastic surgery.

61           The process for applications for registration, including specialist registration, is set out in Division 6 of Part 7.  Once registered, individuals are issued a certificate of registration under s 124 and entered on a publicly accessible register of registered health practitioners for each health profession which is maintained by AHPRA in conjunction with the National Boards in accordance with s 25(f) of the ACT National Law.  Registration is for a period of no more than 12 months:  s 61(1).

62           As such, as AHPRA submits, it can readily be seen that the system of registration “performs important functions under the National Law in ensuring standards (connected to public safety) and public transparency (connected to public confidence and consumer protection)”.  In this regard, it was common ground that there are different pathways and eligibility requirements for the different specialities and that, absent any separate and additional registration, specialist otolaryngologists have met the registration requirements only for otolaryngology.

6.4 Title protections and advertising

63           It was not in issue that the protection afforded by the National Law to the use of specialist titles is intended to create confidence around the communication of the specialist registration regime which includes the requirement for contemporaneity of practice, as well as the successful completion of an approved program and a period of supervised practice in the specialty.

64           Sections 115(1), 118(1), and 119(1) are located in Division 10 of Part 7 which is headed “Title and practice protections”.

65           Relevantly, s 115 provides that:

Restriction on use of specialist titles

(1)        A person must not knowingly or recklessly take or use—

…

(b)        the title “medical specialist” unless the person is registered in a recognised specialty in the medical profession; or

(c)        a specialist title for a recognised specialty unless the person is registered under this Law in the specialty.

      Maximum penalty—

(a)        in the case of an individual—$60,000 or 3 years imprisonment or both…

66           Section 118 relevantly provides that:

Claims by persons as to specialist registration

(1)        A person who is not a specialist health practitioner must not knowingly or recklessly—

(a)        take or use the title of “specialist health practitioner”, whether with or without any other words; or

(b)        take or use a title, name, initial, symbol, word or description that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate—

(i)         the person is a specialist health practitioner; or

(ii)        the person is authorised or qualified to practise in a recognised speciality….

Maximum penalty—

(a)        in the case of an individual—$60,000 or 3 years imprisonment or both…

67           Section 119 in turn, relevantly, reads as follows:

Claims about type of registration or registration in recognised specialty

(1)        A registered health practitioner must not knowingly or recklessly—

(a)        claim to hold a type of registration or endorsement under this Law that the practitioner does not hold or hold himself or herself out as holding a type of registration or endorsement if the practitioner does not hold that type of registration…

68           Section 133 is the sole provision located in Subdivision 4 of Division 11 of Part 7 of the ACT National Law.  Section 133 relevantly provides that:

Advertising

(1)        A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that—

(a)        is false, misleading or deceptive or is likely to be misleading or deceptive…

Maximum penalty—

(a)        in the case of an individual—$60,000;…

…

(4)        In this section—

regulated health service means a service provided by, or usually provided by, a health practitioner.

7. ISSUE 1: DOES THE COURT HAVE JURISDICTION WITH RESPECT TO THE GUIDELINES DECLARATIONS?

7.1              The issue

69           AHPRA contends that there is no “matter” raised by the claim for the Guidelines Declarations, as these declarations seek in effect an advisory opinion with respect to an unspecified otolaryngologist who uses the title “Facial Plastic Surgeon” after “Otolaryngologist” in accordance with ASOHNS’ proposed Advertising Guidelines.

70           The proposed Advertising Guidelines, which were provided to AHPRA under cover of a letter from ASOHNS dated 31 March 2022, were in the following terms:

1. Members who are [sic] perform facial plastic surgery as primary focus of their practice may adopt titles using formulas along the lines of the following examples:

a. Otolaryngologist and facial plastic surgeon
b. Otolaryngologist, head & neck and facial plastic surgeon
c. Otolaryngologist and facial plastic & reconstructive surgeon
d. Ear, Nose & Throat (ENT) and facial plastic surgeon

2. Such members should never claim that they are a “plastic surgeon” or “facial plastic surgeon” in isolation and without first stating their principal specialisation.

3. No part of any website or other advertising material should contain any material which might cause a non-medically trained reader to be confused as to whether the member is registered as a specialist plastic surgeon. In forming this judgement, the member should be aware that members of the public do not necessarily understand that plastic surgery is practised by specialists who are not registered as specialist plastic surgeons.

4. When promoting procedures which are purely cosmetic, special care should be taken to emphasise the member’s primary specialisation. In so doing, it is acceptable to add that the member is also qualified to perform plastic surgery of the type being promoted (i.e. facial plastic surgery) and to specify any additional qualifications gained in that area of practice.

71           I accept that it is likely that some otolaryngologists would seek to advertise in accordance with ASOHNS’ Advertising Guidelines if the Guidelines Declarations were made, given Dr Makeham’s evidence that he would do so in this event.

72           By letter dated 6 April 2022, AHPRA advised that the examples given in the ASOHNS’ Advertising Guidelines did not comply with s 4.1.4 of AHPRA’s guidelines for advertising a health service.  AHPRA therefore “encourage[d]” ASOHNS to amend its proposed Advertising Guidelines in accordance with AHPRA’s views so as “to help prevent [ASOHNS’] members being subject to regulatory action”.

73           In further correspondence on 10 June 2022 to the solicitors for ASOHNS, AHPRA maintained its position, stating that:

Ahpra and the Board consider that only registered specialist plastic surgeons may lawfully describe themselves with the title ‘plastic surgeon’.  Similarly, only registered specialist otolaryngologists may lawfully describe themselves as ‘otolaryngologists’ or ‘head and neck surgeons’.

Several fields of medical practice, including otolaryngology, involve training in plastic surgery.  Registered practitioners can lawfully describe their experience in plastic surgery without being misleading, provided they do not use the title ‘plastic surgeon’.

7.2 Legal principles:  what is a “matter” for the purposes of Chapter III of the Constitution?

74           Section 77 of Ch III of the Constitution vests power in the Parliament to define the jurisdiction of any federal court other than the High Court with respect to any of the “matters” mentioned in ss 75 and 76, which include, relevantly, any matter arising under any laws made by the Parliament (s 76(ii)).  It follows that jurisdiction can validly be vested in the Federal Court only with respect to a “matter” in a constitutional sense.

75           The principles by which it is determined whether a proceeding constitutes a “matter” are well-‍settled and were not in dispute between the parties.

76           First, a “matter” for the purposes of Ch III of the Constitution has two elements:  “the subject matter itself as defined by reference to the heads of jurisdiction set out in Chapter III [of the Constitution], and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy”:  CGU Insurance Ltd v Blakeley [2016] HCA 2; (2016) 259 CLR 339 at [27] (French CJ, Kiefel, Bell and Keane JJ) (quoting with approval Burmester, ‘Limitations on Federal Adjudication’ in Opeskin and Wheeler (eds), The Australian Federal Judicial System (2000) 227 at 232); see also Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 276 CLR 519 at [26] (Kiefel CJ, Keane and Gordon JJ); and AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 97 ALJR 674 at [31]–[32] (Kiefel CJ, Gordon and Steward JJ; with Edelman J agreeing at [61] and Gleeson J agreeing at [111]).  As I have earlier explained, it is not in issue that the applicants’ claims for relief satisfy the first element.

77           As to the second element, it has long been established that “there can be no matter within the meaning of [Chapter III of the Constitution] unless there is some immediate right, duty or liability to be established by the determination of the Court”: In re Judiciary Act 1903-1920 and In re The Navigation Acts 1912-1920 (1921) 29 CLR 257 at 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ) (emphasis added); recently affirmed, eg, in Hobart International at [29] (Kiefel CJ, Keane and Gordon JJ) and at [79] (Edelman and Steward JJ).  It follows that the Parliament cannot authorise a federal court “to make a declaration of law divorced from any attempt to administer that law” or “to determine abstract questions of law without the right or duty of any body or person being involved”:  In re Judiciary at 266 and 267 respectively.  These principles were recently affirmed by Kiefel CJ, Gordon and Steward JJ in AZC20 at [32] who stated that:

As to the second element, as was most recently affirmed in Unions NSW v New South Wales (“Unions (No 3)”),“[e]xceptional categories aside, there can be no ‘matter’ within the meaning of Ch III of the Constitution unless ‘there is some immediate right, duty or liability to be established by the determination of the Court’ in the administration of a law and unless the determination can result in the Court granting relief which both quells a controversy between parties and is available at the suit of the party seeking that relief”.  The requirement to identify some “immediate right, duty or liability” to be established by the determination of the court “reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy”.  That requirement applies in both original and appellate jurisdiction.

(Citations omitted.)

78           The distinction between a justiciable controversy, on the one hand, and an advisory opinion, on the other hand, was considered by the High Court in Bass v Permanent Co Ltd [1999] HCA 9; (1999) 198 CLR 334 in the following passage at [48] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ):

It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion.  However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties.  Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise.  They say:

“If … the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical.  The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally.  Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff.  It may then be doubtful whether this act is covered by the declaration.  In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.”

(Citations omitted; emphasis added.)

79           A res judicata, in turn, establishes an “‘immediate right, duty or liability’ as between the parties”:  Australian Institute of Private Detectives Ltd v Privacy Commissioner [2004] FCA 1440; (2004) 139 FCR 394 at [32] (Sackville J).

80           Secondly, it is well-established, as the applicants submit, that a dispute is not hypothetical or abstract simply because it relates to proposed future conduct.  As, for example, Barwick CJ explained in Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 at 305, the “jurisdiction to make a declaratory order without consequential relief … includes the power to declare that conduct which has not yet taken place will not be in breach of … a law.  Indeed, it is that capacity which contributes enormously to the utility of the jurisdiction [to grant declaratory relief]”.  Similarly, in CGU at [102], Nettle J explained that:

… the court does not lack jurisdiction to make a declaration concerning a theoretical issue, in the sense of an issue that does not presently exist but which is likely to arise in future, where the issue is productive of a real and pressing dispute, is of real practical importance or is one in which the claimant has a real commercial interest.  Thus, for example, it is now well established that, where a claimant intends to take action which would subject him or her to a “theoretical” possibility of being subjected to legal process, the risk of being so subjected to that process is sufficient to ground standing to claim a declaration that the basis of the process (in that case, the offence) is invalid and, co-ordinately, that in such cases there is a matter upon which the court has jurisdiction to adjudicate.

(Citations omitted.)

7.3              The applicants’ submissions

81           Declarations 2, 5, 8 and 11 concern registered otolaryngologists, who are not registered as a “specialist plastic surgeon”.  The issues those declarations raise is whether the mere use of “facial plastic surgeon” after “otolaryngologist” by that class of persons “in accordance with the Advertising Guidelines proposed by the [ASOHNS] in March 2022” would contravene ss 115(1), 118(1), 119(1) and/or 133(1) of the ACT National Law.  The applicants’ submissions can be summarised as follows.

82           First, the applicants contend that in seeking the Guidelines Declarations, ASOHNS seeks to clarify the position of those members who practice facial plastic surgery in circumstances where AHPRA has threatened regulatory action against specialist otolaryngologists who describe themselves as “facial plastic surgeons” but are not registered as a “specialist plastic surgeon”.  The CEO of ASOHNS, Lorna Watson, gave unchallenged evidence that in her experience:

most members of the public do not know that otolaryngologists are qualified facial plastic surgeons.  Further, because not all otolaryngologists regularly practise as facial plastic surgeons, the title “otolaryngologist” on its own does not indicate whether that doctor engages in medical practice as a facial plastic surgeon.  In my opinion, it would be beneficial to members of the public for otolaryngologists to be able to state, after their primary title, their area of practice.

In my capacity as Chief Executive Officer of ASOHNS, I engage with otolaryngology bodies internationally, including ENT UK and the American Academy of Otolaryngology – Head and Neck Surgery.  Through that engagement, I am aware that it is international practice for otolaryngologists abroad to call themselves facial plastic surgeons, if they practice as such.  APHRA’s approach, if correct, would cause Australia to depart from accepted international practice.

83           Secondly, the applicants submit that a justiciable controversy with respect to this issue has arisen between ASOHNS and AHPRA in relation to the proposed Advertising Guidelines.  In particular, the applicants rely upon the following considerations to establish the existence of a concrete dispute.

(1)       AHPRA has taken the position that any use of the description “facial plastic surgeon” by a specialist otolaryngologist who is not also a specialist plastic surgeon will necessarily and of itself result in a contravention of the National Law.

(2)       Members of ASOHNS have used the title “facial plastic surgeon” in advertising and have been required by AHPRA to change that advertising.  Members of ASOHNS also wish to use the title “facial plastic surgeon” in their advertising but do not wish to risk contravening the prohibitions in the National Law given AHPRA’s position.

(3)       The declarations would clarify whether ASOHNS’ proposed Advertising Guidelines are compliant with the National Law, as it contends, or whether ASOHNS must amend the Guidelines in order to avoid leading its members into error, as AHPRA contends.

(4)       In correspondence with ASOHNS, AHPRA has specifically relied upon the prohibitions in ss 118(1), 119(1) and 133(1) of the National Law in respect of which declaratory relief is sought, has expressed the view that members of ASOHNS are engaging in misleading and deceptive advertising, and has indicated that the use of the title “facial plastic surgeon” by specialist otolaryngologists may lead to regulatory action.

(5)       While the prohibition in s 115(1) against a person knowingly or recklessly taking or using a specialist title unless registered has not been expressly relied upon by AHPRA in correspondence, AHPRA has implicitly referred to it in stating in correspondence dated 10 June 2022 that “Ahpra and the Board consider that only registered specialist plastic surgeons may lawfully describe themselves with the title ‘plastic surgeon’”.

84           In order to illustrate the existence of a concrete dispute, the applicants point to correspondence from AHPRA to ASOHNS dated 15 July 2020, which, after referring to the prohibitions in ss 118, 119 and 133 of the National Law, stated that:

Adding a qualifier to a specialist title, such as adding ‘facial’ to ‘plastic surgeon’, does not avoid the prohibitions in section 118 and 119 on using a title that indicates the person is registered in a recognised speciality when they are not, and does not make any advertising less misleading.

Where a medical practitioner uses an approved specialist title in their advertising without being registered in the approved speciality, we consider such advertising to be false, misleading or deceptive or likely to be misleading or deceptive because a reasonable person is likely to understand that use of the title means the medical practitioner holds specialist registration when they do not.

85           The applicants also rely upon the letter to Dr Chow from AHPRA dated 19 November 2021, described above at [31], as being representative of the position taken by AHPRA in respect of other members of ASOHNS.

86           Thirdly, the applicants rely upon the very serious consequences for ASOHNS’ members if they contravene any of the provisions to which the declarations relate in the National Law.

7.4              The Guidelines Declarations do not raise a justiciable controversy

87           I agree with the applicants (as did AHPRA) that the fact that the declarations concern the legality of future conduct does not necessarily deprive the Court of jurisdiction:  see Australian Gas Light Company v Australian Competition and Consumer Commission (No 2) [2003] FCA 1229 (AGL).  Nor, while some uncertainty always attends the application of the law to future conduct, does this necessarily create a jurisdictional issue as I have earlier explained.  As for example, French J (as his Honour then was) observed in AGL at [43], “[t]he future remains an unknown country and the facts upon which any declaration as to future conduct is made or an injunction granted may change.  There is nothing in that circumstance which goes to jurisdiction.”

88           Nonetheless, I accept AHPRA’s submission that the Court does not have jurisdiction regarding declarations 2, 5, 8 and 11 for the following reasons.

89           First, there is no justiciable controversy underlying declaration 2, in respect of s 115(1) of the National Law.  This is because there is no reference in any of the correspondence from AHPRA to ASOHNS raising an issue as to whether or not otolaryngologists who use the title “Facial Plastic Surgeon” after the word “Otolaryngologist”, either in accordance with ASOHNS’ proposed Advertising Guidelines or otherwise, would or may contravene s 115(1) of the National Law.  Nor does the general statement in the letter from APHRA to ASOHNS on 10 June 2022 that “Ahpra and the Board consider that only registered specialist plastic surgeons may lawfully describe themselves with the title ‘plastic surgeon’” provide a sufficient basis on which to infer reliance upon s 115(1) by APHRA.  It is at least equally capable of being read as a statement by AHPRA of its conclusion that the use of the title “plastic surgeon” by otolaryngologists who are not also registered plastic surgeons would be misleading and deceptive contrary to s 133 of the National Law.  In those circumstances, there is no evidence of any dispute, or even disagreement, between AHPRA and ASOHNS with respect to the subject-matter of declaration 2.  There is, therefore,  no “matter” in a Ch III sense with respect to the issue sought to be raised by this declaration.

90           Secondly, in respect of declarations 5, 8 and 11, while there is a disagreement between AHPRA and ASOHNS about the interpretation of the other relevant provisions of the National Law, that disagreement is divorced from any factual context.  As AHPRA submits, the declarations are framed in terms that apply to the hypothetical conduct of a hypothetical member of a large class of individuals.  There are no specific facts against which to consider the declarations, such as the identity of an individual whose freedom of action is challenged, the content or context of specific proposed advertising, or the experience of any particular registered otolaryngologist in undertaking facial plastic surgery.  The latter may vary from simply having successfully completed the facial plastic surgery module in the OHNS Training Program, to experience and qualifications akin to those of Dr Chow.  As such, what is sought, with respect, is an advisory opinion on the construction of the National Law as it applies to the class of individuals falling within proposed declarations 2, 5, 8 and 11 who, aside from Dr Chow and Dr Makeham, are not parties.

91           Nor would AHPRA necessarily be the relevant party which prosecutes alleged contraventions of the statutory prohibitions in question.  While the criminal offences can be tried summarily by AHPRA, if prosecuted on indictment, the offences would likely be prosecuted by the relevant State or Territory Director of Public Prosecutions.  Further, it is the National Board which has responsibility for pursuing any disciplinary proceedings.

92           As such, the declarations would not create a binding decision raising a res judicata or estoppel issue.  In short, as AHPRA submits:

no controversy at all has crystallised between Ahpra and the class of all otolaryngologists registered now or in the future, which, presumably, the declaration is intended to cover.  If [the declarations] were made, it would gather people into it, effectively, over time, which would be an unusual situation, but those members of that class whose legal rights are notionally, at least on the face of it, sought to be affected are not (a) parties to this proceeding, not (b) are they people, other than doctors Makeham and Chow, in respect of whom there has been any crystallised dispute arise with Ahpra at all.

93           As such, the declarations, as the High Court said in Bass at [48], could go no higher than to declare that a registered otolaryngologist is “generally entitled to act in a certain way” without settling the issue finally (emphasis in original).

94           Thirdly, the fact that the declarations are tied to ASOHNS’ proposed Advertising Guidelines do not, in my view, assist in establishing jurisdiction.  Rather, this fact demonstrates that the applicants seek an advisory opinion on whether non-binding guidelines issued on a particular day by a non-statutory agency comply with the National Law.  As AHPRA submits, “[t]he guidelines do not authorise, forbid or mandate any particular conduct by anyone; the question does not concern an immediate ‘right, liability or duty.’”

95           Fourthly, I also do not consider that AHPRA’s correspondence with ASOHNS, and other organisations such as the Australasian Academy of Facial Plastic Surgery, demonstrate the existence of a justiciable controversy.  Rather, I agree with AHPRA that this correspondence should properly be understood as correspondence “with sophisticated stakeholders about the legality of the use of” the phrase “facial plastic surgeon”, which serves the practical purpose of providing transparency to stakeholders about the regulator’s views on the legislation.  As such, reliance on the correspondence does not cure the fundamental difficulty with the Guidelines Declarations, being their hypothetical and advisory nature.

96           Finally, the decisions in AGL and Sterling, on which the applicants seek to rely, are distinguishable.

97           In AGL, AGL proposed to acquire a 35% shareholding in Great Energy Alliance Corporation Pty Limited (GEAC).  An issue arose between AGL and the Australian Competition and Consumer Commission (ACCC) about whether the proposed acquisition, and the acquisition by GAEC and other parties of the business and assets of a subsidiary of GAEC, would contravene s 50 of the (then) Trade Practices Act 1974 (Cth).  The circumstances of the proposed acquisitions were set out in the statement of claim and were not in dispute:  at [7].  Declarations were sought in the following terms:

1. A declaration that the acquisition by The Australian Gas Light Company (AGL) of shares in Great Energy Alliance Corporation Pty Limited (GEAC) pursuant to the GEAC Subscription Deed dated 3 July 2003 would not have the effect, or would not be likely to have the effect, of substantially lessening competition in a market in contravention of section 50 of the Trade Practices Act 1974.
2. A declaration that the acquisition by GEAC Operations Pty Limited (GEAC OpCo), a wholly owned subsidiary of GEAC, of the Loy Yang Sale Shares (as that term is defined in the Statement of Claim) would not have the effect, or would not be likely to have the effect, of substantially lessening competition in a market in contravention of section 50 of the Trade Practices Act 1974.
3. A declaration that the acquisition by AGL of shares in GEAC pursuant to the GEAC Subscription Deed dated 3 July 2003 in combination with the acquisition by GEAC OpCo of the Loy Yang Sale Shares would not have the effect, or would not be likely to have the effect, of substantially lessening competition in a market in convention of section 50 of the Trade Practices Act 1974.

(AGL at [26]; emphasis omitted.)

98           In finding that the Court was “apprised of a real controversy with real consequences depending upon its resolution” at [46], French J reasoned at [40] that:

If the claim for the declaration arises out of a contemporary controversy in which a party’s freedom of action is challenged in some way, that controversy can constitute a matter for the purposes of the exercise of federal jurisdiction.  Whether or not there is a real controversy is a question of judgment.  In the present case, in my opinion, there is a real controversy about the right or freedom of AGL to proceed with the proposed acquisition in relation to the Loy Yang A power station and the coal mine.  Its freedom to do so has been challenged in a very practical way by the regulator in correspondence and most explicitly in its defence…

99           It follows, as AHPRA submits, that the declaratory relief sought in AGL was tethered to specified proposed conduct, unlike the present case with respect to declarations 2, 5, 8 and 11.  Notwithstanding that future conduct inevitably entails a degree of uncertainty, as a matter of judgment, it could not be said that the relief crossed the line into advice on hypothetical conduct.

100        The decision in Sterling is distinguishable for the same reason.  In that case, the Commonwealth appealed a decision of the NSW Supreme Court granting declaratory relief sought by Sterling Nicholas Duty Free Pty Ltd that the delivery of goods by it to a specified location at the overseas terminal at Sydney airport to passengers who had purchased goods from its Darlinghurst premises, was not prohibited by s 7 of the Airports (Business Concessions) Act 1959 (Cth).  While the majority (McTiernan, Menzies and Owen JJ; Barwick CJ and Windeyer J dissenting) allowed the appeal on the ground that the delivery of the goods in question contravened s 7 of the Act in question, Barwick CJ expressly addressed the question of whether there was a matter in a constitutional sense.  On this issue, his Honour held (at 305) that:

The jurisdiction to make a declaratory order without consequential relief is a large and most useful jurisdiction.  In my opinion, the present was an apt case for its exercise.  The respondent undoubtedly desired and intended to do as he asked the Court to declare he lawfully could do.  The matter, in my opinion, was in no sense hypothetical, but in any case not hypothetical in a sense relevant to the exercise of this jurisdiction.  …

Here the respondent was in business carrying out in relation both to ships and airports activities of the general kind proposed in this case.…  Further, there had been actual opposition by the Customs Department to the course which the respondent desired and intended to take.  In my opinion the Supreme Court was right to entertain the respondent’s suit in relation to both the declarations sought.

101        By contrast, as I have held, the declaratory orders sought here are framed in the abstract, by reference to hypothetical conduct by a hypothetical person divorced from any specific factual context.  Nor does reliance upon the decision in Royal College of Nursing (UK) v Department of Health and Social Security [1981] AC 800 assist the applicants.  While potentially relevant to questions of discretion, decisions of United Kingdom courts cannot provide any assistance in determining whether a controversy constitutes a “matter” under Ch III of Australia’s written constitution.

102        Rather, in my view, this case is more closely analogous to the decision in Private Detectives.  In that case, the Australian Institute of Private Detectives Ltd sought declaratory relief about the meaning and application of provisions of the Privacy Act 1988 (Cth) which prevented persons from divulging information sought by members of the Institute on behalf of their clients for the purpose of investigating matters concerning litigation or potential litigation.

103        In holding that the application did not raise a matter, Sackville J held that the declarations were sought “independently of any specific factual allegations”:  at [29].  His Honour also held that the declarations could not quell any existing controversy between the parties and that “[t]he first declaration, before it can be meaningful, requires a number of factual and legal issues to be determined”:  at [31].  His Honour concluded at [32] that:

[i]n effect, the Institute seeks an advisory opinion from the Court without reference to any concrete facts.  The declarations, if made, will not determine finally the rights of the parties and could not amount to a binding decision creating a res judicata between them…  They would not establish any ‘immediate right, duty or liability’ as between the parties.

104        It follows, in my view, that declarations 2, 5, 8 and 11 seek advisory opinions and do not give rise to a “matter” in a Ch III sense.

7.5              In the alternative, even if there was jurisdiction, the Guidelines Declarations would have been refused in the exercise of discretion

105        In any event, even if there was a justiciable controversy in relation to these declarations, I would decline to exercise my discretion to grant relief for the same reasons and in light of the considerations discussed below in Part 8 with respect to the remaining declarations. These considerations include, in particular, the difficulties which may arise if a court in civil proceedings seeks to pre-empt possible future criminal processes by the grant of declaratory relief.

106        Furthermore, declarations in the terms sought would be vague and uncertain, without utility, and apt to mislead ASOHNS’ members.  This is not only because (among other things) the declarations are divorced from any concrete facts (as is emphasised by the use of the word “merely”).  It is also because ASOHNS’ proposed Advertising Guidelines are replete with evaluative considerations about which the member must make their own judgements.  For example:

(1)       the guidelines apply to members who perform plastic surgery “as the primary focus of their practice” (emphasis added);

(2)       the guidelines give indicative examples only of titles which might be used;

(3)       paragraph 3 expressly refers to a judgement which members need to make about whether any other material might cause a lay-person to be confused; and

(4)       paragraph 4 urges caution where procedures “which are purely cosmetic” are being promoted (emphasis added).

107        These evaluative judgements in turn fall to be applied in a context where, despite being trained as part of their initial specialist training in facial plastic surgery, not all otolaryngologists will have currency of practice in facial plastic surgery or any updated training in facial plastic surgery.  As such, they will range in experience from those, such as Dr Chow, who have very significant current experience in facial plastic surgery, at one end of the spectrum, to those who have no or limited experience after their initial training, at the other end.  The aspects of the guidelines to which I have referred therefore illustrate the inappropriateness of granting declaratory relief to the effect that the use of titles in accordance with the Advertising Guidelines would comply with the National Law.

108        Finally, a declaration by this Court as to the legality of the use of particular words in accordance with guidelines would cement the position as at a particular time and may give rise to confusion in the event that the guidelines change over time, even in what may appear to be relatively minor respects.

8.  ISSUE 2: SHOULD THE COURT MAKE THE MAKEHAM/CHOW DECLARATIONS IN THE EXERCISE OF DISCRETION?

8.1              Legal principles

109        Section 21(1) of the Federal Court of Australia Act 1976 (Cth) confers a wide discretion on the Court to grant declaratory relief:  see Bass at [45]–[48] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); and National Australia Bank Ltd v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; (2019) 377 ALR 627 at 114 (Allsop CJ).  It is well-established that it is neither possible nor desirable to fetter the exercise of that discretion by establishing rules as to the manner of its exercise:  Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 (Gibbs J) (by analogy).

110        Nonetheless, the question in respect of which declaratory relief is sought must be real, and not theoretical:  Jododex at 437; Bass at [48] (quoted above at [78]).  Accordingly, the Court will not grant declaratory relief which lacks utility:  Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).  This is not to deny that, in appropriate circumstances, there may be utility in declaring that future conduct will not be unlawful, including in the criminal context, as ASOHNS submits:  see, eg, Sterling at 305 (Barwick CJ) and 311 (Menzies J).

8.2              The parties’ submissions

111        As I accept AHPRA’s submissions as to the exercise of discretion, they can be briefly summarised at this point.  First, AHPRA submits that the Chow/Makeham Declarations are divorced from a specific factual context and therefore theoretical.  Secondly, AHPRA submits that in its correspondence with Dr Chow, no issue was raised about any contravention by her of ss 115(1), 118(1) or 119(1) of the National Law and as such, no real issue arises with respect to these provisions.  Thirdly, AHPRA also relies upon various risks associated with making the declarations, including the risk that inconsistent decisions may be made by criminal courts on the proper construction of the provisions in question and public confidence in the courts thereby undermined.  As such, in AHPRA’s submission, the Court should refuse to make the Chow/Makeham Declarations in the exercise of discretion.

112        The applicants contend that, by inference, AHPRA raised potential contraventions of ss 115(1), 118(1) or 119(1) with respect to Dr Chow, and not merely s 133(1) which was clearly relied upon by AHPRA.  They also rely, among other things, on correspondence with ASOHNS concerning the interpretation of ss 118(1) and 119(1) to suggest that there is a real issue concerning these provisions between AHPRA, on the one hand, and Dr Chow and Dr Makeham, on the other hand.

113        The applicants contend that the Court requires no further factual context in order to grant the declaratory relief sought based on their construction of the relevant provisions.  It is convenient to set out their submissions with respect to each provision in turn.

114        First, the applicants submit that no further factual context or evaluative judgement is required in order to declare that Dr Chow and Dr Makeham would not contravene s 115(1) “merely” by (knowingly or recklessly) using the Combined Expressions.  This submission is based upon the applicants’ construction of what is protected by s 115(1).

115        The applicants first submit that the title which is protected under the National Law is “the specialist title for a recognised speciality” in the Approved List.  That is clearly correct.  However, the applicants further submit that “the specialist title for a recognised speciality” should be construed as a reference to the combined phrases under the heading “Specialist titles” in the Approved List.  Therefore, contrary to AHPRA’s position, the applicants contend that s 115(1) protects the use of the exact title “specialist plastic surgeon” as opposed to simply “plastic surgeon”.  In other words, it is only, in the applicants’ submission, where the exact expression “specialist plastic surgeon” is used that s 115(1) is potentially engaged.   In support of this view, the applicants pointed among other things to the fact that ss 115(1)(a) and (b) specifies the protected titles of “dental specialist” and “medical specialist”.  It follows in the applicants’ submission that, as the Chow/Makeham Declarations relate only to the use of the title “plastic surgeon” by Dr Chow and Dr Makeham, no further facts are required in order for the Court to declare that that use would not contravene s 115(1).

116        Secondly and similarly, the applicants submit that the declarations as to s 118(1) involve no evaluative judgment and do not require any further contextual facts because the prohibition applies only to “[a] person who is not a specialist health practitioner” who claims to be registered in a recognised specialty or holds themselves out as being registered in a recognised specialty.  In this regard, it is not in dispute that Dr Makeham and Dr Chow are specialist health practitioners:  they are individuals who practice a health profession and are registered under the National Law in a recognised specialty:  see the definitions of “health practitioner” and “specialist health practitioner” in s 5.  In the applicants’ submission, that is a sufficient factual foundation for the declarations with respect to s 118(1).

117        Thirdly, with respect to the declaratory relief sought as to s 119(1), the applicants accept that s 119(1) applies to a “registered health practitioner” and, therefore, to Dr Chow and Dr Makeham.  However, the applicants submit with respect to s 119(1)(a) and (c), that a registered health practitioner cannot contravene the provision by holding themselves out as holding something which is not a recognised specialty; nor with respect to s 119(1)(b) and (d) could they (knowingly or recklessly) claim to be qualified to hold a type of registration (i.e. in a recognised specialty) by using the Combined Expressions.  It follows, in the applicants’ submission, that by using the phrase “facial plastic surgeon”, which accurately describes the scope of their training, and not the protected title “specialist plastic surgeon”, Dr Chow and Dr Makeham would not be claiming to be qualified to undertake plastic surgery generally, in contrast to a specialist plastic surgeon who is so qualified.  Accordingly, if the Court accepted this construction as correct, it would follow in the applicants’ submission that no further facts are required to establish a factual foundation for granting the Makeham/Chow Declarations with respect to s 119(1).

118        Finally, the applicants accept that the question of whether a practitioner advertises in a way that is false, misleading or deceptive, or is likely to be so, in contravention of s 133 by using the Combined Expressions in a particular case would call for an evaluative judgment to be made having regard to all of the circumstances.  However, Mr Lloyd SC, submitted that the applicants had avoided that difficulty by seeking more limited declarations.  Specifically, the applicants do not seek declaratory relief to the effect that the Combined Expressions cannot in any circumstances be false, misleading or deceptive.  Rather, in common with the terms of all of the declarations sought, declarations 12 and 13 are to the effect that “merely” by describing themselves by reference to the Combined Expressions, Dr Chow and Dr Makeham would not advertise in contravention of s 133.  In support of the declarations, the applicants further submit that the Combined Expressions which Dr Chow and Dr Makeham wished to use were not false because, as specialist otolaryngologists, they are qualified, and have trained, in facial plastic surgery.  Nor, in the applicants’ submission, would the use by them of the Combined Expressions be misleading or deceptive because:

… in order for it to be misleading or deceptive, you would have to suggest that it imputes that my clients are specialist plastic surgeons in the totality of that work, and we say on a proper reading of the description that my clients seek to do, it simply doesn’t do that.

It makes it very clear that the area of work that or area of surgery that is done by this kind of surgeon is – involves facial plastic surgery and not all of the things plastic surgeons could do.

(Emphasis added.)

119        In other words, the applicants submit that the use of the Combined Expressions by Dr Chow and Dr Makeham would not be misleading or deceptive because “we didn’t call ourselves plastic surgeons; we called ourselves facial plastic surgeons.  That’s a subset of things that is less than what plastic surgeons do.  So it’s not the same”.

8.3              The Chow/Makeham Declarations should be refused in the exercise of discretion

120        In my view, AHPRA’s submission that the Chow/Makeham Declarations do not arise from a real dispute and are divorced from a specific factual context should be accepted.  The fact that the Chow/Makeham Declarations are therefore hypothetical, together with other considerations, weigh heavily against the exercise of the discretion to grant declarations in those terms, even though there are some factors potentially weighing in favour of the exercise of discretion.

121        First, I accept that there is a real disagreement between Dr Chow (and Dr Makeham) and AHPRA with respect to the application of s 133 of the National Law.  In correspondence with Dr Chow, AHPRA contended that Dr Chow’s references to facial plastic surgery were misleading and deceptive and in breach of s 133, and for this reason, AHRPA required her to amend her advertising.  It can reasonably be inferred that AHPRA would have taken the same position with respect to Dr Makeham, if Dr Makeham had also sought to describe himself to patients as an “otolaryngologist and facial plastic surgeon”.  As such, I accept that to this extent the question of whether the use of the Combined Expressions by Dr Chow and Dr Makeham would breach s 133 is not hypothetical and this is therefore a factor weighing in favour of the s 133 Declarations (albeit that I consider that no sufficient factual basis exists for the grant of these declarations for other reasons, as I shortly explain).

122        Secondly, and by contrast, I consider that the dispute in respect of ss 115(1), 118(1) and 119(1) is hypothetical.  This is because AHPRA has not alleged that Dr Chow’s advertising (or Dr Makeham’s proposed advertising) may breach any of these provisions; nor did AHPRA seek to enforce those provisions in giving Dr Chow a warning with respect to the alleged contraventions and requiring her to amend her advertising.  Further, I do not consider that correspondence between AHPRA and stakeholders, such as ASOHNS (described above), referring to ss 118(1) and 119(1) (but not s 115(1)) is relevant to the question of whether the Chow/Makeham Declarations should be granted.  This is because correspondence by the regulator with a stakeholder on the interpretation of legislation is different from a warning to a particular practitioner about a potential breach of the legislation.  The stakeholder correspondence does not, in other words, establish the existence of a real issue between Dr Chow (and Dr Makeham) and AHPRA as to whether use of the Combined Expressions by Dr Chow (and Dr Makeham) may contravene those provisions.

123        It follows that the subject-matter of the Chow/Makeham Declarations with respect to ss 115(1), 118(1) or 119(1) is hypothetical and there would be no utility in granting the declarations.  As Finn J, for example, explained in Duncan v Chief Executive Officer, Centrelink [2008] FCA 56; (2008) 244 ALR 129 at [32] with respect to the discretion to grant declaratory relief:

… its exercise is confined by the considerations which mark out the boundaries of judicial power hence it must be directed to the determination of legal controversies and not to the answering of abstract, hypothetical, or moot questions or giving advisory opinions:  Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582; 106 ALR 111 at 22; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355–6; 161 ALR 399 at 413–15; [1999] HCA 9.  An applicant must demonstrate a “real interest” in a “real question” the answering of which must produce some “real consequences for the parties”: Forster at 437; and see, generally, Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 413–15; 139 ALR 663 at 669–72.

(Emphasis added.)

124        Thirdly, contrary to the applicants’ submission, in my view the use of the word “merely” in the declarations in fact exacerbates these difficulties.   It emphasises that the Court is being asked to construe criminal and disciplinary provisions and determine how they would apply in a highly abstract all-or-nothing context and therefore without a true appreciation of their practical application.

125        The High Court recently warned against resolving issues by such an approach in its unanimous judgment in Zhang v Commissioner of the Australian Federal Police [2021] HCA 16; (2021) 273 CLR 216.  In that case, the Court reaffirmed the well-established practice of the Court not to investigate and decide constitutional questions unless it is necessary to decide the case and determine the parties’ rights.  In so holding, the Court held (at [22]) that prudential considerations supporting that practice included “avoiding the risk of premature interpretation of statutes on the basis of inadequate appreciation of their practical operation”:  quoting Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508 at [174] with approval.  In holding that the case before it was a particularly strong one for following that practice, the Court in Zhang held at [24]–[25] that the legislative language which it was asked to construe:

is on any view susceptible of a range of arguable applications involving a spectrum of arguable shades of meaning.  In the present context of a challenge to search warrants, consideration of that range of arguable applications and spectrum of arguable shades of meaning was shown by the course of argument to involve an exercise in imagination.  In the context of a criminal prosecution, in contrast, the preferable shade of meaning would fall to be determined (on demurrer or appeal) by reference to the precise way the prosecution sought to particularise and to prove its case.  And it would fall to be determined with the assistance of argument honed by a focus on realistic outcomes aligned to the interests of the parties.

Lacking in the present case is “that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faced situation embracing conflicting and demanding interests”.  Worse in the present case is that the lack of concreteness is accompanied by incentives for argument that run counter to the administration of justice in an adversary system.

(Citations omitted.)

126        The present is not a case where questions of constitutional validity arise.  Nonetheless, the High Court’s observations as to the undesirability of determining issues of construction “across a spectrum of arguable shades of meaning”, absent the existence of a real dispute, are directly relevant to the present case.  To do so in this case would, in my view, run counter to the underlying principle as to the manner in which the law evolves in an incremental way through the resolution of real disputes which cast light on the practical operation of statutory provisions and therefore upon their proper construction.  Similarly, as Wheelahan J held on the appeal in Minister for the Environment v Sharma [2022] FCAFC 35; (2022) 291 FCR 311 at [767], “[t]here is a preference for the common law to be applied by reference to concrete facts arising from real life activities”.   Thus, his Honour raised serious doubts about the appropriateness of the declaration granted at first instance as to the bare existence of a duty of care to avoid causing harm to minors from greenhouse gas emissions, absent any consideration of the other elements of a cause of action in negligence:  at [782].  As his Honour held, a duty of care must be considered in relation to the facts of an individual case in the context of a consideration of all of the elements of the cause of action (at [767]):  it “does not exist in the air” (at [776]).

127        Turning to the declarations sought here, the fact specific nature of the relevant provisions in the National Law is particularly acute in relation to ss 118(1), 119(1) and 133(1) of the National Law.

(1)       Thus s 118 not only requires proof of a state of mind which is necessarily fact specific (i.e. conduct undertaken by a practitioner “knowingly or recklessly”).  Other elements of that offence, under s 118(1)(b), include taking or using a title that “having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate” that the person is qualified to practice in a recognised specialty.

(2)       With respect to s 119(1), contrary to the applicants’ submissions, it is not self-evident that use of the term “facial plastic surgeon” would not be understood as a claim to hold a specialisation in plastic surgery.  As AHPRA submits, “when one is dealing with … a phrase that makes more specialised an existing specialty, so ‘facial plastic surgery’, one of the clear implications one might thought at least … likely that that could give to a member of a public is that the person is even more specialised, that they’ve got the general qualification, and then they have a particular subspecialty…” (emphasis added).

(3)       In the case of s 133, whether or not advertising is false, misleading or deceptive, or likely to be misleading or deceptive, is quintessentially a question of fact to be considered in all of the circumstances.  That question will never in the real world fall for consideration in a factual vacuum.  Accordingly, there is no utility in making the Chow/Makeham Declarations absent any factual context and to do so may itself be liable to mislead.

128        Fouthly, the applicants’ submissions on the issues of construction underlying the Chow/Makeham Declarations (which I have earlier summarised at Part 9.2 above) are not reflected in the terms of the declarations themselves.  For example, the applicants do not seek a declaration that an otolaryngologist is a “specialist health practitioner” for the purposes of s 118(1) of the ACT National Law.  Nor, for example, is a declaration sought addressing the question of whether s 115(1) is contravened only where all of the words “specialist plastic surgeon” are used.  Rather, the declarations are framed in terms of immunising conduct from the scope of the relevant provisions.  In this respect, the declarations are presumably intended to have a similar effect to the declaration made by the primary judge in Sharma on the basis that it would operate as a preclusion upon re-litigation by the Minister and respondents (as Wheelahan J explained on appeal in Sharma at [763]).

129        Fifthly, this last point highlights another difficulty upon which AHPRA understandably placed considerable weight, namely, the potential for real or apparent inconsistencies between civil decisions, on the one hand, and criminal and disciplinary decisions on the other hand if the declarations were made, given that this Court has no power to direct how a court might interpret these provisions in the context of a criminal trial.  As such, to make declarations in the present circumstances has the potential to undermine public confidence in the Courts.

130        In this regard, save for the declarations with respect to s 119(1), all of the declarations relate to provisions creating criminal offences, with ss 115(1) and 118(1) creating indictable offences:  see s 241A of the National Law.  Rather, the criminal courts and responsible tribunals with respect to disciplinary matters are the appropriate fora to deal with questions of criminal and disciplinary conduct respectively, absent exceptional circumstances.  Thus, by analogy, in Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd [2007] FCA 1868; (2007) 164 FCR 487, concerning the grant of injunctive relief to restrain allegedly criminal conduct in the exercise of discretion, Finkelstein J said at [24]:

But, whatever type of criminal case, all the leading authorities caution against a court that is exercising civil jurisdiction attempting to supplant the criminal law.  The consensus both in England and Australia is that this should only happen in exceptional circumstances.

131        The decision of the House of Lords in Imperial Tobacco Ltd v Attorney-General [1981] AC 718 illustrates some of the difficulties which may arise if a court in civil proceedings seeks to pre-empt criminal processes.  In that case, the House of Lords held that the Court should not have exercised its discretion to make a declaration that no offence had been committed after the commencement of a prosecution.  In so holding, Viscount Dilhorne (with whose reasons Lord Edmund-Davies at 742, Lord Fraser of Tullybelton at 746, and Lord Scarman at 746 agreed) pointed to the risks of interference by civil courts in the functions of criminal courts, including in seeking declarations as to the legality of future conduct.  In particular, Viscount Dilhorne emphasised, “[s]uch a declaration is no bar to a criminal prosecution, no matter the authority of the court which grants it”:  at 741.  His Lordship also pointed to the risk that upholding the declaration in that case “will form a precedent for the Commercial Court and other civil courts usurping the functions of the criminal courts.  Publishers may be tempted to seek declarations that what they propose to publish is not a criminal libel or blasphemous or obscene”:  ibid.  Furthermore, his Lordship considered that it may prejudice criminal proceedings taken in the future, the result of which would depend upon the facts proved.  Thus, Viscount Dilhorne considered that it would only be in “a very exceptional case” that it would be appropriate for a civil court to grant a declaration as to the criminality or otherwise of future conduct:  at 742.

132        In addition to the risks of the kind to which Viscount Dilhorne referred, to make a declaration in the present case may also impact upon prosecutions in ways which it may be difficult to foresee.  For example, a declaration in the terms sought by Dr Chow and Dr Makeham may bear on whether they, or another otolaryngologist, acted recklessly for the purposes of s 115(1) or 118(1) of the National Law, and encourage conduct ultimately held to be unlawful when all of the facts are before the criminal court.

133        Further, while the applicants sought to rely upon the decision in Royal College of Nursing, that decision is distinguishable.  Declaratory relief was granted in Royal College of Nursing in circumstances where the nurses could be instructed to undertake a procedure as a part of their employment which they considered may be unlawful, despite the Department of Health having issued a circular to the effect that it was lawful:  at 805 (Lord Denning MR).  By contrast, in the present case, Dr Chow and Dr Makeham simply wish to have the freedom to engage in conduct which the regulator regards as unlawful.

134        Sixthly, while the Makeham/Chow Declarations are framed so as to relate only to Dr Chow and Dr Makeham, if made, these declarations are likely to give comfort to other registered otolaryngologists that they can lawfully use the Combined Expressions in their own advertising.  Thus, as French CJ observed, the construction of a statute impacts not just the parties to litigation, but also “those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it generally”:  International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 at [42].  Yet that comfort may be false because the declarations would not preclude a court in criminal proceedings from reaching a different view as to the construction of the relevant provisions from that for which the applicants contend and, if so, as to the relevance of factual matters to the question of whether a contravention has occurred.

135        Furthermore, the terms of the Chow/Makeham Declarations suggest that there is nothing about the particular factual circumstances of Dr Chow or Dr Makeham which rendered their use of the Combined Expressions lawful under the National Law.  However, it would appear from the applicants’ submissions that the particular experience and expertise of Dr Chow and Dr Makeham were in fact relied upon in support of declarations 12 and 13 that use of the Combined Expressions by them would not be false, misleading or deceptive contrary to s 133 of the ACT National Law.  It follows that the comfort which other otolaryngologists may derive from declarations 12 and 13 may itself be false, and the declarations misleading, because of their different circumstances.

136        Finally, the applicants submit that if the Court refused to grant declaratory relief in the exercise of discretion, the only way in which the law could be clarified would be for an otolaryngologist to commit an offence and expose themselves to a criminal conviction or civil penalty.  Yet understandably, Dr Chow modified her conduct in light of AHPRA’s position to avoid such risks and Dr Makeham has likewise refrained from advertising using the Combined Expressions.  It can also be inferred that other otolaryngologists are likely to do likewise.  As the applicants submit, a result of this is that AHPRA’s view of the law would be untested.  Yet, the applicants submit, just as “persons should not be disadvantaged in seeking to challenge the validity of a law because of their compliance with the law”, nor should those seeking clarity as to the legality of their actions:  quoting Unions NSW v New South Wales [2023] HCA 4; (2023) 97 ALJR 150 at [26] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ).

137        However, while the applicants’ desire for clarification is a completely understandable one and the contention at least on its face has some force, this dilemma is one potentially confronted by any person operating in a regulated industry or profession.  It does not address the difficulty that what is sought in this particular case is too hypothetical; nor does it address the difficulties with the lack of utility in the grant of the declaratory relief and the interrelated risks in terms of future criminal and disciplinary proceedings.  This is not to say that ASOHNS (and its members) are left without any avenue for securing their use of the phrase “facial plastic surgeon”.  As explained above, the Health Ministers’ Meeting has the power to approve one or more specialist titles for each specialty in the Approved List.  It would, therefore, be open to ASOHNS to seek a variation to the list.

9. ISSUE 3: SHOULD THE COURT CONSIDER THE SUBSTANTIVE ISSUES IN OBITER?

138        It was common ground that, in circumstances where I have found that the Court lacks jurisdiction to grant the Guidelines declarations, I should not provide obiter consideration of the substantive issues raised by these declarations.

139        The issue is more complex with respect to the subject-matter of the Chow/Makeham Declarations.  The applicants contend that I should proceed to consider the substantive questions raised by the Chow/Makeham Declarations, notwithstanding that I have refused to grant those declarations in the exercise of discretion.

140        First, the applicants submit that, in circumstances where an appeal may be instituted, it is my duty, as the primary judge, to assist the appeal court in respect to the substantive issues.

141        Secondly, the applicants understandably submit that, in circumstances where I have found that there are sufficient facts to support jurisdiction and have had the benefit of full submissions from the parties, I should provide guidance in relation to those matters.  That, in turn, would reduce the risk that any appeal would result in the matter being remitted to me, with consequential delays, costs implications, and implications in terms of court resources.

142        Notwithstanding the force of these considerations, in the particular circumstances of this case I have reached the view that it would be inappropriate for me to consider the substantive issues for three reasons.

143        First, to do so would give rise to the very vices which I sought to avoid in declining to grant relief.  As AHPRA submits:

the vice would be more intense, that is, your Honour would be answering questions in the abstract without concrete facts, and the effect of that on any future criminal process would be even more uncertain than if they were in the form of declarations because they would amount to obiter by a Federal Court in the context, then, of State proceedings that would ultimately be taken.  They would be quintessentially advisory opinions in that sense, precisely that which the court seeks to avoid.

144        Secondly, as AHPRA also submits, if the applicants appeal from my decision to refuse relief and it is upheld on appeal, any obiter consideration would stand, and the vices associated with that obiter consideration would continue.

145        Thirdly, I accept that in circumstances where an appeal was allowed in respect of my decision, that in deciding not to provide obiter consideration to the substantive issues, it may be necessary for the Full Court to remit those matters for my determination.  However, I consider that the vices of expressing obiter views outweighs this consideration in this case.

10.              CONCLUSION

146        The application must be dismissed.  As AHPRA has been wholly successful, there is no reason why ASOHNS should not pay AHPRA’s costs.  However, subject to affording the parties the opportunity to be heard, it is my preliminary view that no order as to costs should be made against Dr Chow and Dr Makeham.  Further, the applicants sought to be heard on the question of costs with respect to the intervention, to the extent that the application was not successful.  I will, therefore, reserve the question of costs with respect to Dr Chow and Dr Makeham, and with respect to the application to intervene.

I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.

Associate:

Dated:        30 August 2024

ANNEXURE A

List of specialities, fields of speciality practice and related specialist titles (1 June 2018)