This month has been a busy month for my semi-scholarly work. At the start of the month, I wrote a piece for the Conversation about the so-called crackdown on the cosmetics procedures sector announced by AHPRA around 7 September 2023.
Following the publication of that piece, I was lucky to be asked to appear on a long interview for Mamamia’s The Quicky. It was a great talk and I thank host Claire Murphy for the great interview.
Over the last few days, when it was announced that a COVID-19 inquiry would be run by the Commonwealth government, its terms of reference came under scrutiny. Having co-authored and published an article earlier in the year on COVID-19 mandates — an article that I was very proud to have written, especially when it was given plaudits from now Justice of the High Court of Australia Hon Robert Beech-Jones — I was keen to provide my view on the terms of reference.
Several commentators around the country have argued that the terms of reference are unduly restrictive and a cause for complaint. That, in some ways, is understandable. After all, it is essential that critical minds and governments examine how the public health legislation was deployed during the pandemic, especially where profound human rights issues arise from coercive interventions.
However, as I argued ion ABC News Radio on Friday 22 September, the Inquiry expressly will cover questions of governance, including
the role of the Commonwealth Government, responsibilities of state and territory governments, national governance mechanisms (such as National Cabinet, the National Coordination Mechanism and the Australian Health Protection Principal Committee) and advisory bodies supporting responses to COVID-19.
Given that our Constitution does not confer on the Commonwealth a competency to make laws with respect to public health, however, the terms of reference strike me as sensible and practical.
After all, it is the states, including New South Wales, that hold the power to regulate public health within their polities. Sections of the states’ public health Acts confer different conditional powers on their relevant health ministers; and, in New South Wales, it is section 7 that gives the Minister seemingly massive powers to do whatever they consider necessary to deal with the risk and its possible consequences when, on reasonable grounds to consider that a situation has arisen that is likely to be a risk to public health.
The fact that the Commonwealth cannot really repeal, remake or otherwise alter or even influence this power is a point that I found has been missing from the public debate. And so I was pleased to feed that into the debate via national radio.
My request, alas, remains with ABC Archives for a copy of the recording! (It cannot be replayed like some other programs on ABC listen, etc).
All the Cth stuff — therapeutic goods under s 51(23A), quarantine under s 51(9), health powers given to the Cth by the states under s 51(37), and import of PPE and vaccines under s 51(1) are all on the table. But the states enact their own public health laws, and it was …
In the meantime, I feel more compelled than ever to revise and rewrite the serious consideration that I developed in 2018 on the division of health power in Australia — an article that, for various reasons, did not make it through peer review at the top journals but which I have been told several times since would make a sorely needed contribution to the literature in this area. The best articles on the topic I have found are two oldies and a newie:
I have been writing on welfare law over on my substack blog Welfare Law in Australia. One recent post and video deals with the question of ‘unlawfulness’ as it arises in respect of the former section 1073B of the Social Security Act 1989 (Cth). The way that that section was applied by the welfare departments between 2003 and 2020 was, as the Ombudsman has confirmed, unlawful. But what does unlawful mean here?
As I suggest, it essentially means that the departments acted in a way that was not expressly authorised by the legislation. But, perhaps more faultily than this, the departments misinterpreted or misconstrued their powers under the section; and, accordingly, they acted without power on an assumption that they did have power. As I note (perhaps somewhat agonisingly), this is a little like playing football with ‘boots on your hands’ — essentially doing something that is within the rules (‘kicking the ball’) but completely misunderstanding what the rules mean (ie, the rules require players to kick the ball with their feet; not simply ‘with boots on one’s limbs’). For mine, the lesson to arise from this (the Ombudsman’s statement, after all, is titled ‘Lessons in Lawfulness’) is that reading legislation carefully is absolutely indispensable. The more sophisticated version of that lesson is that:
internal calculators or automation tools in government departments need to be crafted in accordance with legislation to the letter;
the calculator in this case, the Earnings Apportionment Tool (within the Adex Debt Statement) should never have been permitted to create apportionments that went beyond the statutory limit of one ‘instalment period’; and
cross-disciplinary legal practitioners must be identified and employed, or alternatively trained — those who have skills in statutory interpretation as well as computer and software design — in order to avoid internal tools being run and applied that perform operations that are contrary to law.
The issue that arose in relation to the legal construction of the provision was simple enough — at least in hindsight. The provision provided as follows:
1073B Daily attribution of employment income
(1) If:
(a) a person is receiving a social security pension or a social security benefit; and
(b) the person’s rate of payment of the pension or benefit is worked out with regard to the income test module of a rate calculator in this Chapter; and
(d) the person earns, derives or receives, or is taken, either by virtue of the operation of section 1073A or any other provision of this Act, to earn, derive or receive, employment income during the whole or a part of a particular instalment period of the person;
the person is taken to earn, derive or receive, on each day in that instalment period, an amount of employment income worked out by dividing the total amount of the employment income referred to in paragraph (d) by the number of days in the period.
As I have noted in my analysis in this video, it was perfectly lawful for the agencies to apportion income, as the provision provides, by ‘dividing the total amount of the employment income… by the number of days in the [instalment] period.’ However, it was not lawful for the agencies to divide the ‘total amount of the employment income … by [a greater number] of days [than exist] in the [instalment] period,’ which is what they did. It’s all there in the last sentence of the provision.
The word ‘period’ as it is used in the last clause of the provision appears to have taken on an expanded meaning on the agencies’ construction so that it could apply to the entire payslip period; however, as is clear on a plain language reading of the provision, the term ‘period’ can only refer back to the word ‘instalment period’ that appears earlier in the provision. Otherwise it has no fixed meaning, which is clearly unbearable.
I was very disappointed by the Deputy Secretary of DSS, as well as by the Ombudsman, when they appeared recently in the Senate inquiry on poverty in Australia, because both these senior governmental figures bemoaned the ‘complexity’ of the matter, and stressed how difficult it was to explain. I was disappointed because it really need not be described in this way. It can be explained quite tersely and clearly. And if senators who are not legally trained have questions, they can be answered pretty well. What needs to be explained is that the agencies made a very rudimentary reading error. They identified the word ‘period’ in the provision as a word that has no fixed meaning but could potentially expand to any quantum. When one thinks about it, that was a very amateurish mistake. And one imagines, as in the case of robodebt, the mistake was bordering on one that used to be described, in the old actions on the case, as faulty for ‘want of due care.’
I will be aiming to write a more complete analysis later on why this is not an error that is wholly or even at all distinguishable from robodebt, as seems to be the message from all and sundry now, from the Ombudsman himself, through the department heads, through to the relevant ministers (Hons Shorten and Rishworth). But it is an untextured and, ultimately, untrue message. As the appendix to the robodebt Royal Commission clearly illustrates, more than twenty of the earliest robodebts that came before the AAT1 were subject to recalculation orders by AAT members who found them to be ‘unlawful’ precisely because they were calculated impermissibly under s 1073B.
This project to distinguish miscalculated debts under s 1073B from robodebts is something of a legal nonsense. Yes: robodebts involve debt letters that alleged debts based on ATO data. And, yes, the s 1073B problem predates the OIC and other version of the robodebt programs. But, in terms of the legal problems presented by robodebts, these debts were unlawful, in the end, for two reasons: first, they were insufficiently evidenced in terms of their quantum, as the Federal Court observed in its settlement orders. The Court (Davies J) put it this way (at paragraph 9):
there was no material before the decision-maker capable of supporting the conclusion that a debt had arisen pursuant to s 1223(1)(b) of the SS Act.
But the second and very much related reason why robodebts were unlawful is because they were calculated contrary to s 1073B. The fact that this second reason was not explored in the Royal Commission nor articulated in the reasons of Davies J in Amato, and had not been aired publicly before this month, does not make it any less true that robodebts were unlawful because of this problem. To be sure, the smoking gun in this respect is the fact that the Amato submissions made the s 1073B impermissibility argument (emphasis mine):
56.4 Section 1073B provided for averaging of income earned by a person receiving social security payments over an “instalment period”. An “instalment period” could not exceed 14 days. The effect of s 1073B was to produce an average daily rate of income for each day in the instalment period. Section 1073C then provided that “(a) the rate of the person’s employment income on a fortnightly basis for that day may be worked out by multiplying that amount by 14; and (b) the rate of the person’s employment income on a yearly basis for that day may be worked out by multiplying that amount by 364”. Sections 1073B and 1073C do not authorise apportionment of the kind done under the EIC program. They simply provide a mechanism for working out “the rate of the person’s employment income on a yearly basis” where it is relevant, under the SS Act, to calculate the rate on a yearly basis. The relevant period for Austudy payments was a fortnight, not a year. As the relevant explanatory memorandum states, the main purpose of ss 1073B and 1073C was to facilitate the “working credit” rules in the SS Act, the function of which “is basically to allow a person’s ordinary income to be reduced before it is put through [the] income testing process”. The working credit rules provided for the calculation of “the participant‘s rate of employment income on a yearly basis” for the purpose of working out the effect on working credit balances of social security pensioners. The working credit rules did not apply to Austudy recipients.
…
But, as I say, more on that later.
Another recent post deals with another issue that arose this month regarding historical errors on the part of the welfare agencies. Services Australia’s IT system committed errors that affected almost 50,000 child support payment recipients in an unspecified period prior to and around 2018. While the IT issue is said to have been resolved in 2020 (some two years after the agency had been consulted on the issue by the Ombudsman), only around 35,000 people had by that time had their assessments and entitlements re-assessed and remediated, while another roughly 15,000 recipients’ entitlements were not reassessed or remediated. Instead, they were simply ‘written off’ as inconsequential and unnecessary to address by the welfare delivery department.
This decision was made by the agency despite the fact that it had committed to reassessing all the affected files in 2019 in representations it had made to the Ombudsman. All of this, of course, was occurring during the robodebt settlement and through the Royal Commission. Clearly concerned that this backsliding on a prior commitment could result in unfair outcomes, the Ombudsman this year sought to re-engage with the department to ‘make things right’ — and that, as it happens, is the name of the statement published by the Commonwealth Ombusdman in respect of this matter.
Today the Commonwealth Ombudsman published ‘Making things right: Insights into Services Australia’s handling of the impact of a system error on certain historic child support assessments’.
This short statement is not to be confused with a report of the same name published by the Ombudsman with respect to the Department of Education back in 2015. (I suppose, when one is the Ombudsman, titles like Making things Right or Lessons in Lawfulness will probably need to be recycled every few years.) As I argue in the post, it is just another example of the recalcitrance of the agency among several that have emerged since the Robodebt Royal Commission.
If you have not been following my activity on Welfare Law in Australia, please do subscribe. Relatedly, my media appearances in recent times on welfare law are as follows:
I was interviewed alongside two leading voices in plastic and cosmetic surgery on 2SER
I recently was interviewed by 2SER’s The Wire (‘New Endorsement Model for Cosmetic Surgeons in Australia‘) in a program covering the newly proposed regulation of cosmetic surgeons through an endorsement model. The recent acceptance by the Health Ministers of the proposed endorsement model follows the production of an independent report commissioned by AHPRA and the Medical Board of Australia last year, which recommended the same.
However, another reform was also proposed and accepted — as a separate matter — in a decision of the Health Ministers in Febrary (effectively the Ministerial Council for the purposes of the relevant Health Practitioner Regulation National Law (NSW) (‘National Law‘)). That was a proposed reform to make the title ‘surgeon’ a protected title.
Adobe Stock under a University of Sydney licence.
Though details of the relevant Bill, titled the Health Practitioner Regulation National Law (Surgeons) Amendment Bill 2023, are not yet published, the effect of this reform would be, I presume, to add the title surgeon to the list of protected titles that currently appears in a Table (see below) under section 113 of the National Law.
At the moment, there are a number of titles protected under this section 113 Table for each of the 15 health professions. However, only ‘medical practitioner’ appears as a protected title within the category of medical practitioners. Presumably, the title ‘surgeon’ would be added here. (Interestingly, the term ‘dental surgeon’ is also not specified in this statutory table next to dentists; although certain restricted dental acts are specified under section 121.) The table appears in the National Law as below:
Given that the titles in the above table require a parliamentary amendment to change, they may be regarded as a ‘durable’ list of titles that strictly cannot be used without the relevant legal authorisation: namely, registration from AHPRA and the relevant health practitioner board.
Below this level of ‘strict’ or ‘durable’ regulation, however, there are a number of ‘specialist registrations’ that various health professionals may qualify to hold, including in medicine, dentistry, and even surgery. These specialist titles for surgery are also currently restricted — even though the general term ‘surgery’ is not. And you need to hold a ‘specialist registration’ to use them. And so, through this regulatory arrangement, a registered medical practioner with simply a general registration can currently call themselves a ‘surgeon’; however, that practitioner will need a specialist registration (with special training) to call themselves a ‘specialist orthopaedic surgeon’ or ‘specialist plastic surgeon.’
In terms of regulatory reform, however, it could be said that these specialist titles in surgery — just like all the specialist titles — are a bit less durable, or alternatively more agile, than those named in the primary Act. That’s because you do not need to change the primary law by amendment to change these. They can be changed when AHPRA recommends that a specialty should be recognised to the Health Ministers and the Health Ministers agrees.
And it would arguably be quite burdensome for Parliament to have to amend the National Law (namely, the table under section 113) every time the Health Ministers decided that a new specialist registration should be recognised and its use, as a title, restricted. Thus, the currently restricted specialist titles are not housed in the primary Act but are instead identified by the Medical Board of Australia here. The relevant part of this list for surgeons is reproduced below:
Importantly, however, the Health Ministers, or the Ministerial Council, is the body that approves what new specialist registrations are possible under the relevant sections of the National Law: namely, section 13(2) of the National Law. Once the specialist registration is approved, the Australian Medical Council (the practitioner training accreditor) and the Medical Board of Australia (the regulator of medical practitioners) then use guidelines (published in 2018) to ensure that anyone who seeks and holds such a specialist registration has undergone the relevant accredited course of training.
Notably, when the title ‘surgeon’ is protected, this appears to create protection for a more capacious or extensive rage of practitioners than ‘cosmetic surgeons.’ Indeed, the term ‘cosmetic surgeon’ will not be a specialist registration for a surgeon, and so it will not be protected. Rather, the more general term ‘surgeon’ appears to be proposed as the one that will be protected, and this may have strange ramifications for those who are practising cosmetic surgery. Presumably, there will be an exception that says ‘cosmetic surgeons are able to use the title ‘surgeon” when it is used in the full title ‘cosmetic surgeon.’
However, to make this make sense, the so-called ‘endorsement’ model will have to be created so that ‘endorsed’ cosmetic surgeons will be able to use the title in this way (as an exception) only. If any medical practitioner who performs cosmetic surgery is able to use the title surgeon as they describe themselves as a ‘cosmetic surgeon’ — even if they do not have an endorsement — then the title protection will be otiose.
This takes me to the first point I raise in this interview: namely, whether the ‘endorsement’ model will require registered medical practitioners who perform cosmetic surgery to be endorsed, or whether it will simply be a ‘nice to have’ — so that health consumers can feel better guided by the accreditation standard signalled by their chosen practitioner’s endorsement in the area of cosmetic surgery. I think this gets addressed in my analysis above. What I suspect will happen is that ‘endorsed’ cosmetic surgeons will have an entitlement to call themselves ‘surgeons’ without liability of penalty. The current example of this is the case of acupuncturists, which also have an endorsement model.
Under section 114 of the National Law, there is a carve out for acupuncturists that permits them to use the title without any liability:
As can be seen in the provision above, the acupuncturist can only call themselves an acupuncturist if they have an endorsement under section 97 of the National Law, as follows:
I suspect we will see similar provisions inserted into the National Law for cosmetic surgeons, although it could be that cosmetic surgeons are covered by the catch-all provision for certain areas of practice under section 98 (‘Endorsement for approved area of practice’) and regulations take care of clarifying that a cosmetic surgeon is an approved area of practice. However, in my view, the legislature should mirror the acupuncturist provisions to make the reform abundantly clear and durable.
The other point I make at the end of the interview related to the resolution of the so-called turf war that has been long running between ‘untrained’ cosmetic surgeons and those who have significant training — the plastic surgeons and others who are fellows of the Royal Australasian College of Surgeons.
Obviously, I am relatively neutral in this debate, not being from either camp. However, I was sandwiched, as it were, between the leading voices from each camp in this interview, which made it an interesting result, given that I had no idea that these other interviewees would be taking part. Luckily, I did not take sides inadvertently, and, perhaps as some kid of reward, was gifted a few minutes’ exclusive commentary at the end of the report.
Please let me know if you have any feedback on my take below or on Twitter.
