QCAT distinguishes CFMEU - joint submissions still possible in disciplinary proceedings
Dispute Resolution update - 28 August 2015
A recent decision by the Queensland Civil & Administrative Tribunal (QCAT) has confirmed that it remains possible for the parties involved in disciplinary proceedings to make joint submissions on the final orders to be made in relation to sanction.
The longstanding practice of parties making joint submissions to a court or tribunal seeking an agreed penalty has been in doubt, following the Full Federal Court decision in Director Fair Work Building Industry Inspectorate v CFMEU1 in which the Court ruled that joint submissions on penalties were inadmissible. The Full Federal Court's decision is proving highly contentious, as it found that criminal and civil matters should not be treated differently, thus expanding the application of the High Court's decision in Barbaro v R.2
CFMEU has been appealed to the High Court and is scheduled to be heard in October. In the interim, however, the QCAT decision has clarified that CFMEU has not altered how health practitioner disciplinary proceedings are determined before QCAT.
In 2013, the Pharmacy Board of Australia (Board) referred a pharmacist, Rimal Jattan, to QCAT for disciplinary action. On the basis of extensive admissions made by Mr Jattan and consistent with other authorities, including Medical Board of Australia v Martin,3 the Board and Mr Jattan made joint submissions to QCAT about the final orders it could make.
In light of the CFMEU decision, shortly before the hearing of Jattan, QCAT asked the parties to be ready to address the issue of whether it could continue to act on joint submissions.4
QCAT's approach in Martin was consistent with the Full Federal Court decision in NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission.5 That is, unless jointly proposed orders fell outside the permissible range for the conduct, it would accept the joint submission and make the proposed orders on sanction.
In CFMEU, the Full Federal Court acknowledged the long established practice of accepting joint submissions on penalty and recommendations from prosecutors about the range of appropriate penalties, as described in NW Frozen Foods and Minister for Industry, Tourism and Resources, v Mobil Oil Australia Pty Ltd.6 However, the Court decided it was bound by the High Court's decision in Barbaro v The Queen7 and that the determination of penalty is solely a matter of judicial discretion, including civil penalties. CFMEU thus expanded the application of Barbaro beyond criminal matters to civil penalty proceedings and arguably other regulatory proceedings.
After hearing submissions from the parties, QCAT found the statutory regimes established under the Health Practitioner (Disciplinary Proceedings) Act 1999 (Act) and the Health Practitioner Regulation National Law (Queensland) (National Law) were distinguishable from the pecuniary penalty regime considered in CFMEU.
In particular, the Board, as prosecutor, is often required to form a preliminary view on sanction when deciding what forum a practitioner should be referred to for disciplinary action. This enabled QCAT to distinguish CFMEU and conclude that the principles established in Barbaro do not apply in disciplinary proceedings under the Act or National Law.
The relevance of how matters are referred to the QCAT was taken into account by the Deputy President when he said:
'If the Board itself refers the matter, its referral to the Tribunal must be accompanied by a statement by the Board about the reason for the referral, and any comment or other information about the matter the Board considers appropriate. …
Either of these circumstances would appear to permit the opinions of the Board or the panel as to the appropriateness of particular forms of sanction, to be communicated to the Tribunal. It would seem quite open to the Tribunal to have regard to those opinions in determining what disciplinary action to take if it ultimately determined that a disciplinary ground had been established. …'8
QCAT found the circumstances that enabled the Court in CFMEU to depart from the practice in NW Frozen Foods and Mobil do not exist in disciplinary proceedings referred under the Act and National Law. Martin and other cases like it should continue to be followed in disciplinary proceedings referred to QCAT under the Act and the National Law.
QCAT's decision gives some certainty about how it will determine health practitioner disciplinary matters, however this could be a temporary respite pending the outcome of the High Court appeal in CFMEU. The High Court may yet confirm CFMEU was correctly decided, which would significantly alter how health practitioner registration Boards conduct disciplinary proceedings.
1  FCAFC 59;  320 ALR 631.
2 (2014) 305 ALR 323.
3  QCAT 376,  - .
4  FCAFC 59;  320 ALR 631.
5 (1996) 71 FCR 285, 290 - 291.
6  FCAFC 72.
7 (2014) 305 ALR 323
8 Pharmacy Board of Australia v Jattan  QCAT 294,  - .
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