Was AAT's direction under Section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) to a party to attend and participate in a psychiatric medical assessment valid?

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP [2023] FCAFC 24 (3 March 2023)

Intro:-

This is an appeal from the Federal Court of Australia.

Facts:-

The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs appeals from the judgment of a single judge exercising the Court’s original jurisdiction. By the judgment under appeal, the judge set aside a Direction made by the Administrative Appeals Tribunal in reliance on s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

The Tribunal made the Direction on 11 June 2021, in conducting a review of a decision made by a delegate of the Minister under ss 36 and 65 of the Migration Act 1958 (Cth) to refuse LPSP (the first respondent to this appeal) a protection visa.

The Direction was as follows:-

Pursuant to s 33 of the Administrative Appeals Tribunal Act 1975, the Tribunal DIRECTS that:-

a) On a date to be fixed, but not before 19 June 2021, the Applicant must attend and participate in a consultation with Dr Gosia Wojnarowska, Forensic Consultant Psychiatrist, for the purpose of Dr Wojnarowska preparing an independent expert report; and

b) The Respondent must pay all fees and costs associated with Dr Wojnarowska’s assessment and preparation of her report.

The Direction was accompanied by notes in the following terms:

Notes to Direction

1. If you do not comply with a direction, the Tribunal will list the application for a directions hearing. You will be required to attend the directions hearing in person and explain why you have not complied with the direction.

2. The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975. If you are the Applicant and you fail to comply with a direction, you may also be asked to explain at the directions hearing why your application should not be dismissed.

3. If a party fails to comply with this direction, the Tribunal will not necessarily decide to adjourn, or delay the listing of, an alternative dispute resolution process or hearing.

4. Where the Tribunal has the power to award or recommend the payment of costs, failure by a party to comply with this direction may be taken into account in making a decision relating to costs.

5. If you do not believe you will be able to comply with a timeframe or any other aspect of this direction, you must apply to the Tribunal for an extension of time to comply or a variation of the direction. You must seek the views of the other party before making such an application, and advise the Tribunal of the other party’s views. You should make the application well before the date by which you are required to comply with the direction.

6. If you have been directed to give the Tribunal a Hearing Certificate, in accordance with the General Practice Direction, the Tribunal may list your application for hearing without further consultation if you do not provide the Hearing Certificate by the specified date.

LPSP applied to this Court for judicial review of the decision to make the Direction on 18 June 2021. The three grounds of his application were as follows:-

The decision was not authorised by the enactment in pursuance of which it was purported to be made.

Particulars

a. By the decision, the Tribunal purported to make a direction compelling a person (the Applicant) to attend and participate in a medical examination – relevantly here, a psychiatric consultation – to which he did not consent conducted with a medical practitioner chosen by another party (a compulsory medical examination direction).

b. The decision was purported to be made pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

c. Section 33(2) of the AAT Act relevantly authorises the giving of directions in certain circumstances ‘as to the procedure to be followed in connection with the hearing of a proceeding before the Tribunal’, non-exhaustive examples of which are provided in s 33(3). Those examples do not include, and cannot be interpreted to include, a direction requiring a person to undergo a compulsory medical examination.

d. The power in s 33(2) is a generally worded power directed to procedure, which is insufficiently clearly worded to authorise a compulsory medical examination direction, such a direction interfering with fundamental common law rights and freedoms (including the right to privacy), and the general system of law.

e. Accordingly, s 33(2) did not authorise the direction in the present case.

f. No other sub-provision of s 33 authorised the direction in the present case.

g. The decision to make the direction is amenable to review on this ground by reason of s 5(1)(c) or (d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or, alternatively, s 39B of the Judiciary Act 1903 (Cth).

The decision of the Primary Judge onGround One. 

The primary judge held that neither the Migration Act nor the AAT Act empowered the Tribunal to make the Direction, and rejected the Minister’s submission that it did not have a coercive effect. His Honour held that an order or direction of a court or tribunal that would interfere with a fundamental right required specific statutory authority. In reaching this conclusion, the primary judge cited S v S [1972] AC 24; Furesh v Schor [2013] WASCA 231; 45 WAR 546; Hastwell v Kott Gunning (No 5) [2020] FCA 621; and Nursing and Midwifery Board of Australia v HSK [2019] QCA 144; [2019] 1 QR 600. His Honour explained that:-

"Although the present matter concerns the powers of the Tribunal under the Act, in my view, there is no compelling reason to depart from the principle expressed in HSK or Hastwell. Whether the principle identified is an application of the principle of legality or better understood as a narrower principle of statutory construction specific to the interpretation of powers of courts and tribunals is of little moment.

For those reasons and contrary to the Minister’s contention, I regard the principle applied in Hastwell and HSK as being applicable to the construction exercise herein raised. In that regard I do not accept the Minister’s submission that the Direction involves no infringement of the applicant’s fundamental right to not disclose personal and private information."

The primary judge held that the power to issue directions under s 33 of the AAT Act was limited to procedural directions, and that a direction that compelled interference with the liberty of an individual was not a procedural direction. His Honour rejected the Minister’s submission that the Direction fell within s 33(2A)(a) of the AAT Act, and opined that the AAT Act allowed for other means for the Tribunal to ensure that “justice between the parties is achieved in the circumstances at hand”.

Issue:-

The Minister appeals from the judgment of the primary judge on the sole ground of whether the primary judge erred in concluding that the [Tribunal] was not empowered by s 33(2) of the Administrative Appeals Tribunal Act 1975 (Cth) to make the direction dated 11 June 2021, and ought to have concluded that the [Tribunal] was empowered to make the direction.

Consideration:-

Construction of section 33

Plainly enough, s 33 of the AAT Act does not expressly empower the Tribunal to direct an individual to attend and participate in a consultation with a psychiatrist, in order that the psychiatrist prepare a report relevant to an issue arising on review. The power to make such a direction might be implied from the text, context and purpose of the AAT Act, but for the principle of legality to which we shall turn shortly.

The factors supporting such an implication might include:-

- the expressly non-exhaustive character of s 33(2A);

- the discretion conferred by s 33(2A)(a) to require a party to a proceeding to provide further information in relation to the proceeding;
a party’s duty under s 33(1AB) to use the party’s best endeavours to assist the Tribunal to fulfil the objective in section 2A, including to promote a “fair, just, economical, informal and quick” mechanism of review; and

- the Tribunal’s duty under s 43 of the AAT Act to make a decision on review that is correct or preferable on the material before it: see, for example, Shi at [98], [144].

The Direction was not, however, simply a direction about a procedure to be adopted to enable relevant evidence to be obtained and to allow a party before the Tribunal a proper opportunity to respond to the case advanced by the other party, as the Minister submitted. The Direction involved an interference with LPSP’s personal liberty and autonomy. As Boddice J said in HSK at [32], with respect to the Queensland Civil and Administrative Tribunal (QCAT):

"A power to compel an interference with the liberty of an individual litigant is not generally considered necessary for the speedy and fair conduct of a proceeding."

HSK is discussed further below.

As we have seen, LPSP relied on the principle of legality to argue that the Court should not construe s 33 of the AAT Act as conferring the power on the Tribunal to make the Direction, because the Direction would interfere with his fundamental common law freedoms. The principle of legality requires that a legislative intention to diminish a fundamental common law right, freedom, or immunity, or to depart from the general system of law, must be clearly expressed, by “unmistakable and unambiguous language”: Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437. There is no doubt about the principle: see further X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at 153; Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309 at [21]; and North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 at [11] et seq. As Mason CJ, Brennan, Gaudron and McHugh JJ stated in Coco at 437:-

"The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights."

This principle of construction has been part of Australian law for a long time, as reference to Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 309 shows. The principle militates in favour of a construction that avoids encroachment on fundamental common law rights, freedoms and interests if such a construction is open. Such a construction is evidently open in this case.

There is also no need to explore whether the principle of legality is capable of being engaged in the present context. There is ample authority that a requirement that a person submit to a medical assessment or test against their will involves an interference with fundamental common law freedoms. For this reason, in conformity with the principle of legality, in the absence of clear legislative authorisation, Australian courts will not construe a generally expressed provision, such as s 33 of the AAT Act, as conferring power to make an order or direction requiring a competent person to undergo a medical examination against their will. See, for example, Furesh v Schor; Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15, 175 CLR 218 (Marion’s Case); Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council ([2009] NSWCA 59; 2009) 230 FLR 336; Washington v Washington; and HSK.

The Direction mandated a medical (psychiatric) assessment and involved an interference with LPSP’s personal liberty and autonomy. I interpolate here that many have written about the distinction between personal liberty and autonomy. For example, in Two Concepts of Liberty, Sir Isaiah Berlin drew a distinction between “negative freedom” (liberty) – being the freedom from interference from another person or body; and “positive freedom” (autonomy) – being the freedom of the individual to be “his own master”. See Isaiah Berlin, “Two Concepts of Liberty” in Four Essays on Liberty (Oxford University Press, 1969): 118-173, at 121-134. It suffices to say here that, as the following discussion shows, the authorities indicate that, via the principle of legality, the common law is concerned to protect both forms of freedom.

Thus, in Furesh v Schor, the Western Australian Court of Appeal held that it did not have inherent power to order a party to civil proceedings to submit to a mouth swab for DNA analysis against their will. Pullin JA in separate reasons recognised (at [4]) that:-

"The principles which may appear to clash are as follows:

(a) On the one hand, in the administration of justice, courts determine civil disputes by receiving evidence. 

(b) On the other hand, the common law respects and preserves the autonomy of adult persons of sound mind with respect to their body. The common law accepts that a person has rights of control and self-determination in respect of his or her body which other persons must respect. Those rights can only be altered with the consent of the person concerned."

In his Honour’s analysis, the second of these principles prevailed.

The parties’ arguments in this appeal reflected a similar tension between analogous principles. On the one hand, the Minister argued the Tribunal needed to reach the correct or preferable decision by reference to the material before it, which should include the report of a psychiatrist nominated by the Minister. On the other hand, LPSP argued that the common law was protective of individual liberty and autonomy and required clear legislative authority to authorise their curtailment.

Also in Furesh v Schor, in each of their separate reasons, Newnes and Murphy JJA referred to Marion’s Case (and S v S) in support of the proposition that, in the absence of legislation clearly conferring the power to order a party to civil proceedings to submit to a medical assessment or test, no such order could lawfully be made.

Likewise, in Washington v Washington, Parker J held (at [151]) that the South Australian Supreme Court had no inherent power to compel a party to undergo a medical examination to provide evidence in civil proceedings. In these circumstances, his Honour observed:-

"The inherent power of the Court is limited to the grant of a stay if a plaintiff refuses to undergo medical examination. The grant of a stay serves to protect the process of the Court from abuse, and therefore it involves the inherent powers in the narrow sense."

We return to the matter of a stay below.

In Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59; (2009) 230 FLR 336, the New South Wales Court of Appeal held that a statutory power to require a worker to submit to a medical examination if required by his employer for one purpose did not permit the employer to require a worker to submit to medical examination for a different purpose.

In Colquhoun v Capital Radiology, in the course of considering the obligation of a statutory medical panel to give reasons, the Victorian Court of Appeal observed that, but for the specific statutory conferral of the power on the panel to require a claimant for damages for non-economic loss to submit to a medical examination, it would not have been open to the panel convenor to “purport (in the exercise of power to give procedural directions) to confer such power”. The Court’s observation is consistent with the decisions of other Australian courts.

More recently, in HSK, the Queensland Court of Appeal determined that it was not open to the QCAT (the State’s administrative merits review body) to require HSK to undergo a health assessment to secure nursing registration. The appellant Board relied on the power conferred by s 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (Queensland Act) to give directions for the conduct of a review, to support the challenged direction. Boddice J, with whom Morrison and McMurdo JJA agreed, characterised the power conferred by s 62 as a broad, procedural one, to be exercised for the speedy and fair conduct of a proceeding: HSK at [29]. The Court held, however, that QCAT had correctly found that s 62 of the Queensland Act did not authorise a direction that HSK undergo a further health assessment as part of the review: see HSK, at [35]. Boddice J relevantly affirmed that “[a] direction requiring an interference with the liberty of an individual litigant has generally been viewed as requiring specific statutory authority”, and that this was absent from the Queensland Act: see HSK at [34].

In Grant, on the other hand, a Full Court of this Court reached the contrary conclusion after considering the text, context and purpose of the Coal Mining Safety and Health Act 1999 (Qld). The Court held that, as a matter of construction, the Act clearly expressed an intention to curtail coal workers’ personal liberty to the extent that they could be required to attend medical examinations in certain circumstances.

In summary, before a court or tribunal in Australia can require person to undergo a medical examination against their will, the legislature must confer the power to do so in clear and unmistakable terms. This expression of the principle of legality is consistent with the decision of the High Court in Marion’s Case. In that case, respecting the need for consent before a surgical procedure might be performed, McHugh J observed (at 309) that “the common law accepts that a person has rights of control and self-determination in respect of his or her body which other persons must respect”.

The parties to this appeal did not direct the Court to any statutory provision expressly empowering the Tribunal to require a party to submit to a medical assessment against their will. As already noted, s 33 of the AAT Act does not expressly confer such a power. Consideration of the text, context and purpose of the AAT Act does not lead to the conclusion that that Act expresses a clear intention to authorise the Tribunal to curtail a party’s personal liberty and autonomy by requiring him to attend a medical examination against his will. The AAT Act does not manifest an intention to do so by “unmistakable and unambiguous language”: see Coco at 437. Having regard to the foregoing discussion, it would be an error to construe s 33 as conferring power on the Tribunal to do so.
In this context, there is no relevant difference between a physical medical assessment and a psychiatric medical assessment . A physical assessment may typically involve a greater degree of physical interference with the body than a psychiatric assessment, although this need not be so.

There was no specific evidence of what Dr Wojnarowska’s psychiatric assessment of LPSP (as foreshadowed by the Direction) was likely to involve. It would, however, involve some interference with LPSP’s personal liberty insofar as he would be required to make himself available at a particular time and date for the consultation to occur. Whether this was in-person or via electronic means is immaterial. His psychiatric assessment would also evidently involve a curtailment of his autonomy, that is, his freedom to choose if and to whom he would disclose otherwise private information about himself. As already stated, the common law protects both personal liberty and autonomy, that is, both negative and positive personal freedoms.

Australian courts have recognised that, so far as the principle of legality is concerned, there is no relevant difference between being required submit to a physical medical assessment and a psychiatric medical assessment : compare the decision of the English Court of Appeal in Lane v Willis.

In Hastwell, Jackson J proceeded on the basis that the principles concerning the power to order compulsory physical and psychiatric medical examinations were the same: compare Hastwell at [33]. A Full Court of this Court dismissed an appeal from his Honour’s judgment: see Hastwell v Kott Gunning [2021] FCAFC 70. In Washington v Washington, Parker J adopted the same approach in upholding an appeal from the decision of a Master requiring a psychologist’s assessment of a party against their will: see Washington v Washington at [137]. Most recently, the Queensland Court of Appeal in HSK also drew no distinction between a psychiatric and a physical medical assessment in construing s 62 of the Queensland Act by reference to the principle of legality. Section 62 of that Act was similar to s 33 of the AAT Act.

I note at this point that LPSP specifically submitted that this Court should follow HSK since this was a decision of an intermediate appellate court about much the same issue in connection with substantially similar legislation. Strictly speaking, even though HSK and the present appeal give rise to very similar issues, the rule as stated in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 does not in terms apply. This is because HSK concerned a State Act concerning a State tribunal. The State Act also differed from the Commonwealth AAT Act at various points. It may be, however, that Walker Corporation v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259 and R v Falzon [2018] HCA 29; 264 CLR 361 have widened this rule. Compare Attorney-General (Cth) v Ogawa [2020] FCAFC 180; 281 FCR 1; MNWA Pty Ltd v Deputy Commissioner of Taxation [2016] FCAFC 154; 250 FCR 381; and Parkin v Boral Limited (Class Closure) [2022] FCAFC 47; 291 FCR 116. As will be seen from the above discussion, it is unnecessary to delve into this question, because we would apply the same principles as the Queensland Court of Appeal in HSK, to reach a like conclusion.

Conclusion:-

The Tribunal might have addressed the difficulty that arose because of LPSP’s opposition to an assessment by a second psychiatrist chosen by the Minister other than by compelling LPSP to participate in a psychiatric assessment with Dr Wojnarowska. For instance, as the primary judge said, the Tribunal could have indicated that it would afford the second Zimmerman report limited weight because another psychiatrist had been unable to corroborate Dr Zimmerman’s opinion and the Minister had limited capacity to test it without another expert’s report.

As we have explained, we agree with the primary judge that the Tribunal did not have the power to make the Direction. Accordingly, we would dismiss the appeal. The Minister should pay the first respondent’s costs of the appeal.