MEDICAL BOARD OF AUSTRALIA -v- WILL [2026] WASC 181

[2026] WASC 181 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : MEDICAL BOARD OF AUSTRALIA -v- WILL [2026] WASC 181 CORAM : SEAWARD J HEARD : 12 DECEMBER 2024 DELIVERED : 11 MAY 2026 PUBLISHED : 11 MAY 2026 FILE NO/S : CIV 1606 of 2024 BETWEEN : MEDICAL BOARD OF AUSTRALIA Applicant AND ROBERT KEITH WILL Respondent THE COMMONWEALTH OF AUSTRALIA Intervenor Catchwords: Practice and procedure - Referral of questions of law from the State Administrative Tribunal - Construction of statutory provisions - Health Insurance Act 1973 (Cth) - Health Practitioner Regulation National Law (Western Australia) Act 2024 (WA) - Meaning of 'civil proceedings' - Admissibility of documents in Tribunal proceedings - Privilege against self- incrimination - Penalty privilege - Provision of documents of a Committee to the Tribunal - Is the Tribunal a 'person' -- 1 of 120 -- [2026] WASC 181 Page 2 Legislation: Health Insurance Act 1973 (Cth), s 89A, s 105A(2), s 130, s 106XA, s 106XB, s 106ZPQ, s 106ZR Health Practitioner Regulation National Law (Western Australia) Act 2024 (WA) State Administrative Tribunal 2004 (WA) Acts Interpretation Act 1901 (Cth) Result: Questions in special case answered Category: A Representation: Counsel: Applicant : Mr E M Heenan SC & Ms C McKay Respondent : Mr M L Williams Intervenor : Ms Z Maud SC & Ms M Jackson Solicitors: Applicant : Minter Ellison Respondent : Unsworth Legal Intervenor : Australian Government Solicitor Case(s) referred to in decision(s): Abdi v Release on Licence Board (1987) 10 NSWLR 294; (1987) 31 A Crim R 436 Adams v Yung (1998) 83 FCR 248 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 Attorney General for New South Wales v FJG [2023] NSWCA 34; (2023) 111 NSWLR 105 -- 2 of 120 -- [2026] WASC 181 Page 3 Aubrey v The Queen [2017] HCA 18; (2017) 260 CLR 305 Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 Bhalsod v Perrie [2018] WASCA 108 Blake v Norris (1990) 20 NSWLR 300 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 Clark v Marine Fire & Security Pty Ltd [2005] WASCA 188 Clegg v The State of Western Australia [No 2] [2017] WASCA 30; (2017) 265 A Crim R 201 Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211; (2014) 48 WAR 300 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 Hartmann v Commissioner of Police (1997) 91 A Crim R 141 Incollingo v Tax Practitioners Board [2023] FCA 878 Karmakar v Minister for Health (No 2) [2021] FCA 916 Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 Kizon v Palmer (1997) 72 FCR 409 Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 Li v Determining Authority [2022] FCA 1448 Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v Utility Services Corp Ltd (Ruling No 15) [2013] VSC 112 Medical Board of Australia v Kemp [2018] VSCA 168; (2018) 56 VR 51 Migration Agents Registration Authority v Frugtniet [2018] FCAFC 5; (2018) 259 FCR 219 Mohammadi v Bethune [2018] WASCA 98 Osborne v The Queen [2014] NSWCCA 17; (2014) 283 FLR 97 Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397 Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8; (2016) 256 CLR 459 Reynolds v Panten [No 1] [1999] WASCA 89; (1999) 23 WAR 215 Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 Sevdalis v Director of Professional Services Review [2016] FCA 32; (2016) 241 FCR 266 Smith v The Queen [1994] HCA 60; (1994) 181 CLR 338 -- 3 of 120 -- [2026] WASC 181 Page 4 Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281 Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245 Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 Wong v Commonwealth [2009] HCA 3; (2009) 236 CLR 573 -- 4 of 120 -- [2026] WASC 181 Page 5 Table of Contents Introduction ................................................................................................................................ 7 Agreed facts ................................................................................................................................ 8 Legislative framework .............................................................................................................. 16 Health Insurance Act ............................................................................................................ 16 Which version of the Health Insurance Act applies? ....................................................... 16 Professional services ........................................................................................................ 18 Part VAA - PSR Scheme .................................................................................................. 18 Referrals to other bodies ................................................................................................... 26 Division 7 ......................................................................................................................... 27 National Law ........................................................................................................................ 28 SAT Act ................................................................................................................................ 33 Questions of law ....................................................................................................................... 34 Legal principles - statutory construction .................................................................................. 36 Question 1 - is the Tribunal Proceeding a 'civil proceeding' for the purposes of s 106ZPQ(2)(b) of the Health Insurance Act? .......................................................................... 38 Overview of the parties' submissions ................................................................................... 38 Text ....................................................................................................................................... 38 Context ................................................................................................................................. 41 Referral under s 106XB .................................................................................................... 42 Section 130 of the Health Insurance Act .......................................................................... 49 Other references to 'proceedings' in the Health Insurance Act ......................................... 52 Other contextual matters raised by the parties ................................................................. 55 Purpose ................................................................................................................................. 57 History of pt VAA of the Health Insurance Act ................................................................... 59 Conclusion to question 1 ...................................................................................................... 65 Questions 2 and 3 ..................................................................................................................... 65 Overview of the parties' submissions ................................................................................... 65 Conclusion as to the appropriate construction ...................................................................... 67 Other matters raised by Dr Will ........................................................................................... 70 The offence against s 106ZPP .......................................................................................... 70 Section 106E(3) and s 106E(4) of the Health Insurance Act ........................................... 73 Matters of timing .............................................................................................................. 74 Other Commonwealth legislation ..................................................................................... 74 Conclusion to questions 2 and 3 ........................................................................................... 74 Question 4 ................................................................................................................................. 75 -- 5 of 120 -- [2026] WASC 181 Page 6 Overview of parties' position ................................................................................................ 75 Frugtniet ............................................................................................................................... 77 Disposition ............................................................................................................................ 80 Non-curial nature .............................................................................................................. 80 Text ................................................................................................................................... 81 Context - s 129AAD and s 129AAF................................................................................. 81 Extrinsic materials ............................................................................................................ 88 Purpose ............................................................................................................................. 88 Conclusion regarding question 4 .......................................................................................... 89 Question 5 ................................................................................................................................. 90 Overview of parties' positions .............................................................................................. 90 Penal provision ..................................................................................................................... 94 'Person' or 'another person' ................................................................................................... 95 Text ................................................................................................................................... 95 Context ............................................................................................................................. 96 Legislative history and purpose ...................................................................................... 100 Disclosure and further disclosure ....................................................................................... 104 Text ................................................................................................................................. 104 Context ........................................................................................................................... 105 Further disclosure - conclusions ..................................................................................... 111 Purpose ............................................................................................................................... 114 Conclusion to question 5 .................................................................................................... 116 Conclusion .............................................................................................................................. 116 -- 6 of 120 -- [2026] WASC 181 SEAWARD J Page 7 SEAWARD J: Introduction 1 By orders dated 14 May 2024, the State Administrative Tribunal referred five questions of law by way of case stated to the Court under s 59(10)(b) of the State Administrative Tribunal Act 2004 (WA). 2 The case stated arises in the context of a referral made by the Medical Board of Australia (Board) to the Tribunal of allegations of misconduct against Dr Robert Will. That referral was made pursuant to the provisions of the Health Practitioner Regulation National Law (Western Australia) contained in the schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA), which was later repealed by the Health Practitioner Regulation National Law (Western Australia) Act 2024 (WA) (National Law). 3 As part of the evidence by which it seeks to prove its case in the Tribunal, the Board wishes to rely on certain documents which it obtained pursuant to a referral from the Director of Professional Services Review in the course of an investigation into Dr Will's conduct under the Health Insurance Act 1973 (Cth) (Health Insurance Act). 4 Dr Will says that these documents are not admissible in the proceedings in the Tribunal by virtue of the provisions of s 106ZPQ of the Health Insurance Act, or at least are not admissible to the extent that the documents might tend to incriminate him. The Board is also concerned that it would be unlawful for either the Board or Dr Will to disclose to the Tribunal, or for the Tribunal to admit into evidence, the various documents, by virtue of s 106ZR(1) of the Health Insurance Act. 5 The scope of these provisions, in the context of a referral to a State or Territory body with responsibilities under the National Law, has not been the subject of judicial consideration or determination to date. 6 Before the Tribunal, the parties prepared a set of agreed facts that they contended were necessary to permit the resolution of five questions of law concerning the operation of s 106ZPQ and s 106ZR of the Health Insurance Act. 7 Against this background, Pritchard P concluded that it was appropriate in all the circumstances to exercise the discretion to refer -- 7 of 120 -- [2026] WASC 181 SEAWARD J Page 8 the questions of law to this court, and ordered that the proposed questions of law, together with the agreed facts, be referred to this court for decision. 8 At the hearing, both the Board and Dr Will made submissions, and I granted leave for the Commonwealth of Australia to intervene in the proceedings and make written and oral submissions. I have been greatly assisted by the submissions made by the parties and the Commonwealth. Agreed facts 9 It is convenient to first set out in full the agreed facts upon which the referral proceeds. 1. Robert Will is and was at all relevant times: (a) a registered medical practitioner under the Health Practitioner Regulation National Law (Western Australia) (National Law); and (b) held general registration and specialist registration in the specialty of physician and the specialty field of rheumatology. 2. On 23 January 2018, the Chief Executive Medicare established by s 4(1) of the Human Services (Medicare) Act 1973 (Cth) requested, pursuant to s 86(1) of the Health Insurance Act 1973 (Cth), that the Director of Professional Services Review appointed under s 83 of the Health Insurance Act (Director) review the provision of services rendered by Dr Will from 1 March 2016 to 28 February 2017 that attracted a Medicare benefit and to consider whether Dr Will's conduct in providing the services may amount to 'inappropriate practice' as defined by s 82(1A) of the Health Insurance Act (Review). 3. Pursuant to s 88A(2) of the Health Insurance Act, the Director decided on 29 January 2018 to undertake the Review. 4. Following the Review, the Director did not make a decision under s 91 of the Health Insurance Act to take no further action in relation to the Review. Instead, the Director complied with s 89C(1)(b) of the Health Insurance Act and, among other things, invited Dr Will to make written submissions to the -- 8 of 120 -- [2026] WASC 181 SEAWARD J Page 9 Director about the action the Director should take in relation to the Review. 5. On 29 November 2018 and pursuant to s 93(1) of the Health Insurance Act, the Director: (a) set up a Committee in accordance with Division 4 of Part VAA of the Health Insurance Act; and (b) made a referral to the Committee to investigate whether Dr Will engaged in inappropriate practice when providing services from 1 March 2016 to 28 February 2017 that attracted a Medicare benefit (s 93 Referral). 6. As a result of its consideration of the s 93 Referral, the Committee proposed, further to s 101 of the Health Insurance Act, to hold a hearing on several dates in April, May and June 2019 (Hearing). 7. On 12 December 2018, the Committee gave a written notice to Dr Will further to s 105A(2) of the Health Insurance Act (s 105A(2) Notice to Produce) requiring Dr Will to produce to a person nominated by the Chair of the Committee (Nominee) the documents referred to in the s 105A(2) notice. 8. On: (a) on a date between 12 December 2018 and 9 April 2019, Dr Will produced to the Nominee a tranche of documents referred to in the s 105A(2) Notice to Produce in compliance with the s 105A(2) Notice; (b) on 9 April 2019, Dr Will produced to the Nominee a second tranche of documents referred to in the s 105A(2) Notice to Produce in compliance with the s 105A(2) Notice; and (c) on 3 June 2019, Dr Will produced to the Committee a third tranche of documents referred to in the s 105A(2) Notice to Produce in compliance with the s 105A(2) Notice; (together, Documents Produced). -- 9 of 120 -- [2026] WASC 181 SEAWARD J Page 10 9. Dr Will did not inform the Committee or the Nominee that one or more of the Documents Produced might tend to incriminate him. 10. On or around 29 January 2019, the Committee gave Dr Will a notice issued pursuant to s 102 of the Health Insurance Act (s 102 Notice). 11. The s 102 Notice required Dr Will to appear at the Hearing and give evidence to the Committee. 12. The Committee held the Hearing pursuant to s 101 of the Health Insurance Act on 15 April 2019, 16 April 2019, 6 May 2019, 7 May 2019 and 3 June 2019. 13. Dr Will attended the Hearing. 14. During the Hearing: (a) the Committee took the Documents Produced into evidence; (b) the Committee asked Dr Will questions, including questions about the Documents Produced; (c) Dr Will gave oral evidence to the Committee, including evidence in answer to the Committee's questions about the Documents Produced (Oral Evidence). 15. The Hearing was recorded and a transcript of the Hearing was produced from the recording (Transcript). 16. In the course of the performance of its functions under Part VAA of the Health Insurance Act, the Committee formed the opinion that Dr Will had failed to comply with professional standards. 17. Pursuant to s 106XB(1) of the Health Insurance Act, the Committee gave to the Director: (a) a written statement of its concerns that Dr Will had failed to comply with professional standards (Statement of Concerns); and -- 10 of 120 -- [2026] WASC 181 SEAWARD J Page 11 (b) copies of the material on which the Committee's opinion was based (Material). 18. The Statement of Concerns disclosed: (a) the content of some of the Documents Produced; (b) information the Committee obtained as a result of Dr Will's production of the Documents Produced; and (c) some of the Oral Evidence. 19. The Material comprised: (a) some of the Documents Produced (Selection of Documents Produced); (b) extracts from the Transcript (Transcript Extract). 20. The Transcript Extract disclosed: (a) the content of some of the Documents Produced; (b) information the Committee obtained as a result of Dr Will's production of the Documents Produced; and (c) the Oral Evidence. 21. In December 2019, the Director sent to the Medical Board of Australia (Board) a copy of the Statement of Concerns dated 5 December 2019 and the Material pursuant to s 106XB(2)(d) of the Health Insurance Act (s 106XB Referral). 22. The Board treated the s 106XB Referral as a notification under Part 8 of the National Law (Notification). 23. In reliance on the Statement of Concerns and the Material, the Board decided to commence an investigation in response to the notification pursuant to s 160 of the National Law (Investigation). 24. The Board appointed an investigator pursuant to s 163 of the National Law (Investigator). 25. On or around 1 July 2020, the Committee prepared a final report pursuant to s 106L of the Health Insurance Act (Final -- 11 of 120 -- [2026] WASC 181 SEAWARD J Page 12 Report) and gave the Final Report to a Determining Authority established by s 106Q of the Health Insurance Act (Determining Authority). 26. The Final Report disclosed: (a) the content of some of the Documents Produced; (b) information the Committee obtained as a result of Dr Will's production of the Documents Produced; (c) some of the Oral Evidence; (d) the Statement of Concerns; (e) the deliberations of the Committee; (f) the findings of the Committee. 27. On or around 15 February 2021, the Determining Authority made a final determination under s 106TA of the Health Insurance Act (Final Determination) and gave a copy of the Final Determination to Dr Will in accordance with s 106UA of the Health Insurance Act. 28. The Final Determination disclosed: (a) the content of some of the Documents Produced; (b) information the Committee obtained as a result of Dr Will's production of the Documents Produced; (c) some of the Oral Evidence; and (d) the deliberations of the Committee; (e) the findings of the Committee. 29. In the course of the Investigation, Dr Will provided documents to the Investigator on 13 July 2021, including: (a) copies of some of the Documents Produced (Overlap Documents); and (b) the Final Determination. -- 12 of 120 -- [2026] WASC 181 SEAWARD J Page 13 30. On 11 April 2022 and during the course of the Investigation, the Investigator: (a) sent the Material to Evangelos Romas, a rheumatologist; and (b) requested a written opinion from Associate Professor Romas on certain issues relevant to the Notification and the Investigation (Issues). 31. Associate Professor Romas prepared written reports dated 10 June 2022 and 8 July 2022 setting out his opinion on the Issues (Expert Reports) and sent the Expert Reports to the Investigator. 32. Associate Professor Romas based the opinion he expressed in the Expert Reports on, among other things, the Material. 33. On 16 November 2022, the Board formed a reasonable belief, based on: (a) the Notification (being the s 106XB Referral, which comprised the Statement of Concerns and the Material); (b) the Expert Reports; (c) the Overlap Documents; (d) the Final Determination; and (e) other information provided to the Investigator during the Investigation; that Dr Will had behaved in a way that constitutes professional misconduct and decided to refer the matter to the State Administrative Tribunal of Western Australia (Tribunal) pursuant to s 193(1)(a)(i) of the National Law. 34. On 9 February 2023, the Board referred the matter to the Tribunal pursuant to s 193(1)(a)(i) of the National Law by filing an application with the Tribunal for the following orders (Application): -- 13 of 120 -- [2026] WASC 181 SEAWARD J Page 14 (a) an order pursuant to s 196(1)(b)(iii) of the National Law that Dr Will has behaved in a way that constitutes professional misconduct; or (b) alternatively (in the event that the Tribunal does not make an order pursuant to s 196(1)(b)(iii) of the National Law that Dr Will has behaved in a way that constitutes professional misconduct), an order pursuant to s 196(1)(b)(i) of the National Law that Dr Will has behaved in a way that constitutes unsatisfactory professional performance; and/or (c) an order pursuant to s 196(1)(b)(ii) of the National Law that Dr Will has behaved in a way that constitutes unprofessional conduct; (together, Conduct Orders); (d) any one or more of the following orders (Penalty Orders): (i) an order pursuant to s 196(2)(a) of the National Law that Dr Will be cautioned or reprimanded; (ii) an order pursuant to s 196(2)(b) of the National Law imposing one or more conditions on Dr Will's registration, together with a review period for each condition imposed; (iii) an order pursuant to s 196(2)(c) of the National Law that Dr Will pay a fine of not more than $30,000 to the Board; (iv) an order pursuant to s 196(2)(d) of the National Law suspending Dr Will's registration for a specified period; (v) an order pursuant to s 196(2)(e) of the National Law cancelling Dr Will's registration; (vi) an order pursuant to s 196(4)(a) of the National Law that Dr Will be disqualified from applying for registration as a registered health practitioner for a specified period; -- 14 of 120 -- [2026] WASC 181 SEAWARD J Page 15 (vii) an order pursuant to s 196(4)(b) of the National Law that Dr Will be prohibited permanently or for a stated period from using any title or a specified title, or providing any health service or a specified health service; (viii) an order pursuant to s 88(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that Dr Will pay the Board's costs of the Application. 35. The grounds of the Application included allegations about: (a) the Documents Produced; (b) Dr Will's compliance with the s 105A(2) Notice; (c) the Committee's findings as set out in the Final Report; (d) the Final Determination. 36. The Tribunal's Executive Officer accepted the application on 9 February 2023, upon which a proceeding before the Tribunal was commenced by the Board against Dr Will pursuant to s 42(2) of the SAT Act (Tribunal Proceeding). 37. The Tribunal Proceeding is a matter about Dr Will that the Board referred to the Tribunal pursuant to Part 8 Division 12 of the National Law. 38. To prove the grounds of the Application and seek the one or more of the Conduct Orders and one or more of the Penalty Orders, the Board intends to tender or otherwise disclose, and ask the SAT to admit into evidence in Tribunal Proceeding: (a) one or more of the Documents Produced; (b) the Statement of Concerns; (c) the Oral Evidence (by way of the Transcript Extract); (d) the Transcript Extract; (e) the Final Report; (f) the Final Determination; -- 15 of 120 -- [2026] WASC 181 SEAWARD J Page 16 (g) the Expert Reports; (h) the Overlap Documents; (Proposed Evidence). 39. The Proposed Evidence might tend to: (a) prove that Dr Will has behaved in a way that constitutes professional misconduct or, alternatively, unsatisfactory professional performance; and/or (b) prove that Dr Will has behaved in a way that constitutes unprofessional conduct. 40. If the Tribunal finds that: (a) Dr Will has behaved in a way that constitutes professional misconduct or, alternatively, unsatisfactory professional performance; and/or (b) Dr Will has behaved in a way that constitutes unprofessional conduct; the Tribunal may make one or more of the Penalty Orders. Legislative framework 10 A number of different pieces of legislation, at both a Commonwealth and State level are relevant to the referral. Health Insurance Act Which version of the Health Insurance Act applies? 11 In their written submissions, the Commonwealth submitted that the relevant version of the Health Insurance Act, for the purposes of answering the referred questions of law, was the version current as at 28 February 2017, being the end of the period of time when the services under review were provided. However, the Commonwealth also submitted that the key provisions relevant to the determination of the questions of law had not been amended since that time.1 12 The matter was not directly addressed by the parties during the hearing. After reserving my decision, I sought clarification from the 1 Commonwealth Submissions, [4]. -- 16 of 120 -- [2026] WASC 181 SEAWARD J Page 17 parties as to whether Dr Will and the Board agreed with the position advanced by the Commonwealth. 13 The parties advised the court that they were not in agreement that the relevant version of the Health Insurance Act was the version current as at 28 February 2017. 14 However, the parties all agreed that as there had been no major amendments to the key provisions of the Health Insurance Act up until the point of the referral by the Board to the Tribunal on 9 February 2023, this was not a question which the parties were seeking to have the court resolve, and was not a question which the parties considered affected the answers to the referred questions of law. The parties' position was that the court may therefore conclude that it was not necessary to resolve this question. 15 The parties also advised the court that they were all in agreement that amendments made to the Health Insurance Act in 2025 by the Health Legislation Amendment (Improved Medicare Integrity and Other Measures) Act 2025 (Cth) (which did make substantive amendments to the key provisions) did not affect the issues for determination by the court because the proceeding in the Tribunal was instituted before these amendments came into effect.2 16 Finally, the parties advised the court that they did not seek a further hearing in relation to this issue. 17 In those circumstances, I have proceeded to answer the questions of law by applying the version of the Health Insurance Act current as at 28 February 2017,3 and having regard to any relevant amendments made up until the date of the referral by the Board to the Tribunal on 9 February 2023.4 As submitted by the parties, there have been no amendments of substance made to the key provisions of the Health Insurance Act over that period. However, there have been some amendments over that period of time, both to the Health Insurance Act and the associated regulations. To the extent any are relevant for the purposes of answering the referred questions of law, I have referred to those amendments in my reasons. 2 Health Legislation Amendment (Improved Medicare Integrity and Other Measures) Act 2025 (Cth), sch 4, item 15. 3 Being Compilation No 106. 4 Being Compilation No 120. -- 17 of 120 -- [2026] WASC 181 SEAWARD J Page 18 Professional services 18 The Health Insurance Act provides for the payment of Medicare benefits and dental benefits in respect of professional services provided by or on behalf of several types of health practitioners, including medical practitioners. 19 The definition of professional services is very complex, but relevantly for present purposes it includes various prescribed services offered by medical practitioners, dental practitioners, optometrists and pathologists.5 20 Part II of the Health Insurance Act is concerned with the payment of Medicare benefits, and pts IIA, IIB, IIBA and IIC concern other professional services. Part VAA - PSR Scheme 21 Sections 106ZPQ and 106ZR are contained in pt VAA of the Health Insurance Act, which deals with the Professional Services Review Scheme (PSR Scheme). 22 The object of pt VAA of the Health Insurance Act is set out in s 79A: The object of this Part is to protect the integrity of the Commonwealth medicare benefits, dental benefits and pharmaceutical benefits programs and, in doing so: (a) protect patients and the community in general from the risks associated with inappropriate practice; and (b) protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice. 23 The focus of pt VAA is on conduct relating to the rendering or initiating services for which benefits are payable.6 24 The PSR Scheme provides for reviewing and investigating the provision of services by a person to determine whether the person has engaged in 'inappropriate practice'.7 25 The definition of 'inappropriate practice' is complex, but in broad terms it includes conduct by a practitioner in connection with rendering 5 Health Insurance Act, s 3. 6 Wong v Commonwealth [2009] HCA 3; (2009) 236 CLR 573 [216]. 7 Health Insurance Act, s 80(2). -- 18 of 120 -- [2026] WASC 181 SEAWARD J Page 19 or initiating services that a practitioner's peers could reasonably conclude was unacceptable to the general body of their profession.8 26 The features of the PSR Scheme are captured by s 80 of the Health Insurance Act. These features also correspond broadly with the structure of pt VAA of the Health Insurance Act. 27 It is convenient to set out s 80 in full, before considering some specific provisions of pt VAA in further detail. 80 Main features of the Professional Services Review Scheme (1) This section summarises the main features of the Professional Services Review Scheme established by this Part. (2) The Professional Services Review Scheme is a scheme for reviewing and investigating the provision of services by a person to determine whether the person has engaged in inappropriate practice. (3) The Chief Executive Medicare can request the Director to review the provision of services by a person and the Director must decide whether to undertake a review. (4) Following a review, the Director must: (a) decide to take no further action in relation to the review; or (b) enter into an agreement with the person under review; or (c) make a referral to a Committee. (5) If the Director enters into an agreement with the person under review, the agreement must be ratified by the Determining Authority before it takes effect. Having an agreement ratified avoids a Committee investigation. (6) A referral to a Committee initiates an investigation by the Committee into the provision of the services specified in the referral. The Committee can investigate any aspect of the provision of the referred services and its investigation is not limited by any reasons given in a request for review or a Director's report following a review. (7) Committee members must belong to professions or specialities relevant to the investigation. 8 Health Insurance Act, s 82(1). -- 19 of 120 -- [2026] WASC 181 SEAWARD J Page 20 (8) Committees can hold hearings and require the person under review to attend and give evidence. Committees also have the power to require the production of documents (including clinical records). (9) Committees can base findings on investigations of samples of services. (10) If a Committee finds that the person under review has engaged in inappropriate practice, the finding will be reported to the Determining Authority. The Determining Authority decides what action to take. (11) Provision is made throughout the scheme for the person under review to make submissions before key decisions are made or final reports are given. (12) A Committee cannot make a finding of inappropriate practice unless it has given the person under review: (a) notice of its intention to do so; and (b) the reasons for the finding; and (c) an opportunity to respond. 28 Part VAA provides a scheme whereby the Chief Executive Medicare may request the Director to review the provision of services by a person during a specific period, if it appears to the Chief Executive Medicare that the person may have engaged in inappropriate practice.9 29 The Director must then decide whether or not to undertake the review within one month.10 If the Director decides to undertake the review, the Director may review any or all of the services provided by the person under review during the relevant review period and is not limited by the reasons included in the request from the Chief Executive Medicare.11 30 Section 89B(2) of the Health Insurance Act is relevant to the referred questions of law, and concerns the power of the Director to require the production of documents: For the purpose of undertaking a review, the Director may, by written notice given to: 9 Health Insurance Act, s 86(1). 10 Health Insurance Act, s 88A(1). 11 Health Insurance Act, s 88B. -- 20 of 120 -- [2026] WASC 181 SEAWARD J Page 21 (a) the person under review; or (b) any other person whom the Director believes to have possession, custody or control of, or to be able to obtain, relevant documents; require the person to whom the notice is given: (c) to produce to the Director, or to a person nominated by the Director, such relevant documents as are referred to in the notice; and 31 Relevant documents are defined in s 89B(1) as: relevant documents means documents that are relevant to the review and includes clinical or practice records of services rendered or initiated during the review period by: (a) the person under review; or (b) a practitioner employed or otherwise engaged by the person under review; or (c) a practitioner employed or otherwise engaged by a body corporate of which the person under review is an officer. 32 Following their review, the Director must either:12 (a) make a decision under s 91 of the Health Insurance Act to take no further action; or (b) give the person under review a written report setting out the reasons why the Director has not made a decision under s 91, and invite the person to make written submissions about the action the Director should take in relation to the review. 33 If the Director invites a person to make written submissions, after considering those submissions, the Director must either:13 (a) decide to take no further action in relation to the review in accordance with s 91 of the Health Insurance Act; or (b) enter into an agreement with the person under review under s 92 of the Health Insurance Act; or 12 Health Insurance Act, s 89C(1). 13 Health Insurance Act, s 89C(2). -- 21 of 120 -- [2026] WASC 181 SEAWARD J Page 22 (c) make a referral to a Committee under s 93 of the Health Insurance Act. 34 The Director may decide to take no further action under s 91 of the Health Insurance Act if they are satisfied that there are insufficient grounds on which a Committee could reasonably find that the person has engaged in inappropriate practice, or there are circumstances that would make a proper investigation by a Committee impossible.14 35 An agreement under s 92 of the Health Insurance Act involves a written agreement whereby the person under review acknowledges that they have engaged in inappropriate practice and specifies the action that is to take effect as a consequence.15 36 If it appears to the Director that the person under review may have engaged in inappropriate practice in the provision of services, the Director may make a referral to a Committee, which the Director has set up under div 4 of the Health Insurance Act, to investigate whether the person has engaged in inappropriate practice in providing the services specified in the referral.16 If the Director makes a referral, the Director must prepare a written report for the Committee giving reasons why it appears to the Director that the person may have engaged in inappropriate practice in respect of the services to which the referral relates.17 37 Division 4 of the Health Insurance Act deals with committees. 38 A Committee consists of members of professions or specialities relevant to the field of the person under review and the referred services.18 39 The role of a Committee is to undertake an investigation and prepare a report making findings only in respect of the referred services.19 However, a Committee's investigation of the referred services is not limited by the reasons given in the Director's report.20 Before a Committee makes a finding of inappropriate practice, it is required to notify the person under review of its intention to do so, 14 Health Insurance Act, s 91(1). 15 Health Insurance Act, s 92(1). 16 Health Insurance Act, s 93(1) and s 93(1A) (which was inserted on 6 December 2022 by the Health Legislation Amendment (Medicare Compliance and Other Measures) Act 2022 (Cth), s 3 and sch 1, item 19). 17 Health Insurance Act, s 93(6). 18 Health Insurance Act, s 95(1A). 19 Health Insurance Act, s 106H(1). 20 Health Insurance Act, s 106H(3). -- 22 of 120 -- [2026] WASC 181 SEAWARD J Page 23 provide the person with the reasons on which the Committee intends to base those findings, and provide the person with an opportunity to respond.21 In this regard, div 4 provides for the preparation of a draft report and a final report of the Committee.22 40 If the Committee's draft report contains a finding of inappropriate practice, the Committee must provide the person under review with a copy of the draft report and provide the person under review with an opportunity to make submissions.23 41 The Committee must then prepare a final report. A copy of that final report must be provided to the person under review and the Director. A copy of the Committee's final report must be provided to the Determining Authority not earlier than one month after the day on which a copy of the final report is provided to the person under review.24 42 Sections 97 to 106F of the Health Insurance Act are concerned with the proceedings of a Committee when undertaking its investigation. These sections address matters such as undertaking hearings, the powers of the Committee and the rights of the person under review. A person under review is entitled to attend a hearing; be accompanied by a lawyer or another adviser; call witnesses to give evidence; question a person giving evidence at a hearing; and make submissions to the Committee.25 Evidence at a hearing may be given under oath or affirmation administered by a member of a Committee.26 At any hearing, the Committee is not bound by the rules of evidence and may inform itself on any matter in any way it thinks appropriate.27 43 A person under review may be given a notice to appear at a hearing and give evidence to the Committee.28 If a person under review then fails to attend the hearing or give evidence, they may ultimately be disqualified.29 44 A Committee may also summon a person (other than the person under review) to appear at a hearing to give evidence and produce 21 Health Insurance Act, s 106H(4). 22 Health Insurance Act, s 106KD and s 106L. 23 Health Insurance Act, s 106KD. 24 Health Insurance Act, s 106L(3). 25 Health Insurance Act, s 103(1). 26 Health Insurance Act, s 106A. 27 Health Insurance Act, s 106(2). 28 Health Insurance Act, s 102(4). 29 Health Insurance Act, s 104 and s 105. -- 23 of 120 -- [2026] WASC 181 SEAWARD J Page 24 documents.30 Section 106E(3) abrogates the privilege against self-incrimination and s 106E(4) provides a direct and indirect use immunity in so far as it provides that an answer given or document produced under s 106E(1), and any information or thing (including any document) obtained as a direct or indirect result, is not admissible in evidence against the person in any criminal proceedings. 45 Section 105A of the Health Insurance Act is relevant to the present referral, and concerns the power of a Committee to require the production of documents or the giving of information. Section 105A(2) relevantly provides: The Committee may, by written notice, signed by a Committee member, given at any time before or during the hearing to: (a) the person under review; or (b) any other person whom the Committee believes to have possession, custody or control of, or to be able to obtain, relevant documents; require the person to whom the notice is given: (c) to produce to a Committee member, or to a person nominated by a Committee member, such relevant documents as are referred to in the notice; and … 46 Relevant documents are defined as:31 relevant documents means documents that are relevant to the referral made to the Committee and includes clinical or practice records of services rendered or initiated during the review period by: (a) the person under review; or (b) a practitioner employed by the person under review; or (c) a practitioner employed by a body corporate of which the person under review is an officer. 47 Division 5 is concerned with the Determining Authority, which is established by s 106Q of the Health Insurance Act. The Determining Authority has a number of functions, but relevant for present purposes is sub-div C, which applies if a final report of a Committee is given to 30 Health Insurance Act, s 106B. 31 Health Insurance Act, s 105A(1). -- 24 of 120 -- [2026] WASC 181 SEAWARD J Page 25 the Determining Authority under s 106L(3) of the Health Insurance Act. 48 The Determining Authority is required to prepare both a draft and then a final determination, each of which must contain one or more of the directions contained in s 106U of the Health Insurance Act.32 Those possible directions are lengthy and it is not necessary to detail all of these for present purposes. However, in broad terms they are directions of a disciplinary nature, including matters such as a reprimand, repayment of benefits and disqualification from the provision of specified services. 49 The Director may give the Determining Authority any information the Director considers relevant to the Determining Authority making its draft or final determination.33 50 Prior to preparing a draft determination, the Determining Authority is required to give the person under review a written invitation to make written submissions to the Determining Authority about the directions the Determining Authority should make in relation to the person.34 51 The draft determination must be provided to the person under review and the Director, and must be accompanied by a statement that the person under review is invited to make written submissions suggesting changes to any directions contained in the draft determination.35 52 The Determining Authority must then, having considered any submissions from the person under review, make a final determination. That final determination must also contain one or more of the directions contained in s 106U of the Health Insurance Act. The final determination must be provided as soon as practicable, to the person under review, the Director and the Chief Executive Medicare.36 The final determination takes effect on the 35th day after the day on which the final determination is provided to the person under review.37 32 Health Insurance Act, s 106T and s 106TA. 33 Health Insurance Act, s 106S(1). 34 Health Insurance Act, s 106SA(1). 35 Health Insurance Act, s 106T. 36 Health Insurance Act, s 106UA and s 106W(1). 37 Health Insurance Act, s 106V(1). -- 25 of 120 -- [2026] WASC 181 SEAWARD J Page 26 Referrals to other bodies 53 The Health Insurance Act also contains provisions which permit the Director to refer a statement of concerns to other State or Territory bodies. 54 Relevantly s 106XB provides that if, in the course of the performance of functions or the exercise of powers under pt VAA, a Committee or the Determining Authority forms the opinion that a person who is a practitioner has failed to comply with professional standards, the Committee or the Authority must give to the Director a written statement of its concerns, together with the material, or copies of the material, on which its opinion was based.38 The Director must then send the statement and attached documents received from the Committee or the Determining Authority to the appropriate body or bodies referred to in s 106XB(3).39 55 The bodies referred to in s 106XB(3) are the bodies specified in the relevant regulations. As at 28 February 2017, those were the Health Insurance (Professional Services Review) Regulations 1999 (Cth). However, those regulations were repealed on 23 February 2019 and replaced by the Health Insurance (Professional Services Review Scheme) Regulations 2019 (Cth). The Board is specified as a body in both regulations.40 The 2019 regulations identify a total of 26 different bodies, many of which are not established under Commonwealth legislation. 56 Section 106XB also provides that if, in the course of or in connection with the performance of functions or the exercise of powers (whether by the Director, the Director's nominee, a Committee or the Determining Authority) under pt VAA, the Director forms the opinion that the practitioner has failed to comply with professional standards, the Director must prepare a statement of his or her concerns, attach to the statement the material, or copies of the material, on which his or her opinion was based and send the statement and attached documents to the appropriate body referred to in s 106XB(3).41 57 The conduct to which s 106XB is directed is conduct which does not fall within the scope of 'inappropriate practice' for the purposes of 38 Health Insurance Act, s 106XB(1). 39 Health Insurance Act, s 106XB(2)(b) and s 106XB(2)(d). 40 Health Insurance (Professional Services Review) Regulations 1999 (Cth) reg 12, reg 13 and sch 1; Health Insurance (Professional Services Review Scheme) Regulations 2019 (Cth), reg 11 and reg 10. 41 Health Insurance Act, s 106XB(2)(a) and s 106XB(2)(c). -- 26 of 120 -- [2026] WASC 181 SEAWARD J Page 27 the Health Insurance Act.42 Rather, it is directed to matters falling within the remit of those other bodies. 58 Also relevant is s 106XA, which provides for a similar referral power if in the course of the performance of functions or the exercise of powers under pt VAA, the Director, a Committee or the Determining Authority forms the opinion that conduct by a practitioner has caused, is causing, or is likely to cause, a significant threat to the life or health of any other person. 59 The Director or a Committee can also make a referral to the Chief Executive Medicare if either thinks that the material indicates that the person under review may, in relation to the referred services, have committed a relevant offence or a relevant civil contravention.43 Division 7 60 A number of provisions of div 7 of pt VAA are also relevant to this referral. These provisions address circumstances flowing from the exercise by either the Director or the Committee of the power to require a person to produce documents or give information.44 61 First, is s 106ZPQ, which abrogates the privilege against self-incrimination. Section 106ZPQ provides as follows: (1) A person who is required under subsection 89B(2) or 105A(2) to produce documents for inspection is not entitled to refuse to produce the documents on the ground that the production of the documents might tend to incriminate him or her. (2) However, the production of any such documents, and any information or thing (including any document) obtained as a direct or indirect result of the production of the documents, is not admissible in evidence against the person in: (a) any criminal proceedings other than proceedings for an offence against section 106ZPP; or (b) any civil proceedings other than proceedings before a Committee or the Determining Authority. 62 Secondly, s 106ZR concerns disclosure of Committee deliberations, and provides as follows: 42 Li v Determining Authority [2022] FCA 1448 [87] - [88]. 43 Health Insurance Act, s 89A(1) and s 106N. 44 See Health Insurance Act, s 89B and s 105A. -- 27 of 120 -- [2026] WASC 181 SEAWARD J Page 28 (1) A person must not disclose to another person: (a) any of the deliberations or findings of a Committee; or (b) any information or evidence given to the Committee in the course of its deliberations; unless the disclosure is required or permitted under this Act or the Dental Benefits Act 2008 or is necessary in connection with the performance of the first‑mentioned person's functions or duties under this Act or the Dental Benefits Act 2008. Penalty: Imprisonment for 12 months. (3) This section does not prevent a person from making a disclosure: (a) to a lawyer for the purpose of obtaining legal advice or representation relating to a matter involving the deliberations or findings of the Committee; or (b) if the person is a lawyer - for the purpose of complying with a legal duty of disclosure arising from his or her professional relationship with a client. (4) In this section: lawyer means a barrister or solicitor. 63 Thirdly, s 106ZPN, s 106ZPO, s 106ZPP make it an offence for a person to fail to comply with an order to produce documents or provide information under s 89B(2) or s 105A(2), or to give false or misleading answers or documents. National Law 64 Also relevant to the referral is the National Law. 65 The Health Practitioner Regulation National Law (WA) Act 2010 (WA) (2010 Act) was repealed by the Health Practitioner Regulation National Law (Western Australia) Act 2024 (WA). Pursuant to the (2024 Act), the Health Practitioner Regulation National Law as set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (with some modifications) now applies as the Health Practitioner Regulation National Law (Western Australia). The parties submitted that nothing turns on the alteration in the status of the National Law for the purposes of this referral and the parties referred to the 2024 Act throughout their submissions. I have done the same, and to the extent there are any differences between the 2024 Act and the 2010 Act that are of relevance, those have been identified. -- 28 of 120 -- [2026] WASC 181 SEAWARD J Page 29 66 The objectives of the National Law are outlined in s 3 and are, relevantly, to establish a national registration and accreditation scheme for the regulation of health practitioners, and 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. 67 Section 3A(1) provides that the main guiding principle of the national registration and accreditation scheme is that protection of the public and public confidence in the safety of services provided by registered health practitioners and students are paramount.45 68 An entity that has functions under the National Law is to exercise its functions having regard to the objectives and guiding principles of the national registration contained in s 3 and s 3A of the National Law.46 69 Section 23 of the National Law establishes the Australian Health Practitioner Regulation Agency (AHPRA). The functions of AHPRA include to provide administrative assistance and support to the National Boards, and the Boards' committees, in exercising their functions.47 70 Section 31 of the National Law provides that the regulations must provide for a National Health Practitioner Board for each health profession. The functions of the National Boards include, relevantly:48 (a) to register suitably qualified and competent persons in the health 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; (b) to oversee the receipt, assessment and investigation of notifications about persons who are or were registered as health practitioners in the health profession under the National Law or a corresponding prior Act; (c) to establish panels to conduct hearings about health and performance and professional standards matters in relation to 45 Section 3A was inserted into the National Law via the 2024 Act. However, nothing turns on this provision for the purposes of the referred questions of law. 46 National Law, s 4. 47 National Law, s 25(a). 48 National Law, s 35(1). -- 29 of 120 -- [2026] WASC 181 SEAWARD J Page 30 persons who are or were registered in the health profession under the National Law or a corresponding prior Act; and (d) to refer matters about health practitioners who are or were registered under the National Law or a corresponding prior Act to responsible tribunals for participating jurisdictions. 71 The Board is the statutory body established under s 31 of the National Law to regulate the Australian medical profession.49 72 Part 8 of the National Law relates to health, performance and conduct and provides for various ways in which the conduct of health practitioners can be the subject of oversight and examination. Relevantly for this referral, following receipt of a notification about a health practitioner, the National Board must, within 60 days, conduct a preliminary assessment of the notification.50 The National Board has a number of options as a result of the preliminary assessment, including to take no further action,51 to take immediate action (including the suspension or imposition of a condition)52 and to investigate the health practitioner.53 73 For the purposes of an investigation, the National Board can appoint an investigator.54 The investigator can be either a member of AHPRA's staff, or a contractor engaged by AHPRA.55 The powers of an investigator are contained in sch 5 to the National Law. These powers include the power to require a person to provide information or attend before the investigator to answer questions or produce documents.56 The privilege against self-incrimination is not abrogated. 74 As soon as practicable after completing an investigation, the investigator must give a written report about the investigation to the National Board. The report must include the investigator's findings about the investigation and the investigator's recommendations about any action to be taken in relation to the health practitioner.57 49 Health Practitioner Regulation National Law Regulation (Western Australia), reg 4. 50 National Law, s 149. 51 National Law, s 151. 52 National Law, s 155 and s 156. 53 National Law, s 160. 54 National Law, s 163. 55 National Law, s 163(1). 56 National Law, sch 5, cl 1. 57 National Law, s 166. -- 30 of 120 -- [2026] WASC 181 SEAWARD J Page 31 75 Upon the receipt of the investigator's report, the National Board must decide whether to (a) take no further action or (b) to take the action the National Board considers necessary or appropriate under another division and/or refer the matter to another entity.58 76 One such further action a National Board may take, is to establish a performance and professional standards panel.59 Such a panel must consist of at least three members, chosen from an approved list, comprising at least one member of the community and then other registered health practitioners.60 A panel may decide its own procedures, is required to observe the principles of natural justice and is not bound by the rules of evidence.61 The health practitioner the subject of the hearing may be accompanied by a lawyer and, with the leave of the panel, may appear on behalf of the person.62 A hearing before a panel is not open to the public.63 77 After hearing a matter, a panel may make any of the decisions in s 191 of the National Law which include, relevantly, deciding that the practitioner has no case to answer; that the health practitioner has behaved in a way that constitutes unsatisfactory professional performance; the health practitioner has behaved in a way that constitutes unprofessional conduct; and that the matter must be referred to a responsible tribunal under s 193 or the matter must be referred to another entity including, for example, a health complaints entity for investigation or other action.64 78 One action a National Board may take is to refer a matter about a health practitioner to a responsible tribunal. In this regard, s 193 of the National Law relevantly provides: (1) Subject to section 193A, a National Board must refer a matter about a registered health practitioner … to a responsible tribunal if- (a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason, the practitioner has behaved in a way that constitutes professional misconduct; or 58 National Law, s 167. 59 National Law, s 182(1). 60 National Law, s 182(2), s 182(4), s 182(5). 61 National Law, s 185. 62 National Law, s 186. 63 National Law, s 189. 64 National Law, s 191(1). -- 31 of 120 -- [2026] WASC 181 SEAWARD J Page 32 … (2) The National Board must- (a) refer the matter to- (i) the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred; or … (b) give written notice of the referral to the registered health practitioner … to whom the matter relates. … 79 In Western Australia, the responsible tribunal is the State Administrative Tribunal,65 which is established by the SAT Act. 80 In accordance with s 193A of the National Law, a National Board may decide not to refer a matter about a health practitioner mentioned in s 193(1)(a) to a responsible tribunal if the Board decides there is no public interest in the matter being heard by a responsible tribunal.66 81 Section 196 of the National Law specifies the decisions and other orders the Tribunal may make after considering a referral under s 193 of the National Law. Relevantly for present purposes, these include that the health practitioner has no case to answer; that the practitioner has behaved in a way that constitutes unsatisfactory professional performance; that the health practitioner has behaved in a way that constitutes unprofessional conduct; and that the health practitioner has behaved in a way that constitutes professional misconduct. 82 The Tribunal may also, depending on the findings made, make orders of a disciplinary nature, including a caution or reprimand; imposing a condition on the health practitioner's registration; imposing a fine; and suspending or cancelling the health practitioner's registration.67 65 Health Practitioner Regulation National Law Application Act 2024 (WA), s 19. 66 Section 193A was inserted by the 2024 Act. However, it is not submitted by any party that this section is material to the referred questions of law. 67 National Law, s 196(2). -- 32 of 120 -- [2026] WASC 181 SEAWARD J Page 33 SAT Act 83 The Tribunal's procedures and powers when considering the referral are those detailed in the SAT Act.68 Relevantly for present purposes, when hearing a vocational matter, the Tribunal is to be constituted by three persons, being one person who is legally qualified; one person who has extensive or special experience in the same vocation as (in this case) the health practitioner; and one person not engaged in that vocation who is familiar with the interests of persons dealing with persons engaged in that vocation.69 84 The Tribunal is bound by the rules of natural justice and is not bound by the rules of evidence (save to the extent the Tribunal adopts such rules or procedures).70 The Tribunal may inform itself on any matter as it sees fit and, save to the extent the practice or procedure of the Tribunal is prescribed by or under legislation, may decide its own practice or procedures.71 The parties are to have the opportunity to call or give evidence; examine, cross-examine and re-examine witnesses; and be heard or have submissions considered.72 85 Tribunal hearings are to be open to the public, subject to certain exceptions;73 Tribunal members may administer an oath or affirmation;74 and Tribunal members may call any person to give evidence and examine any witnesses on oath or affirmation.75 The Tribunal has the power to order the production of documents or material despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents.76 86 However, s 68(1) provides that a person is not excused from complying with a requirement under the SAT Act to answer a question or produce a document or other material in a proceeding on the ground that the answer or the production of the document or other material might incriminate the person or render the person liable to a penalty. Further, s 68(2) provides that neither an answer given or the fact that a document or other material produced by the person to comply with the 68 Medical Board of Australia v Kemp [2018] VSCA 168; (2018) 56 VR 51 [36]. 69 SAT Act, s 11. 70 SAT Act, s 32(1) - (2). 71 SAT Act, s 32(4) - (5). 72 SAT Act, s 32(6). 73 SAT Act, s 61. 74 SAT Act, s 70. 75 SAT Act, s 67. 76 SAT Act, s 35(2). -- 33 of 120 -- [2026] WASC 181 SEAWARD J Page 34 requirement was produced, is admissible in evidence in any criminal proceedings against the person other than proceedings for perjury or for an offence against the SAT Act arising out of the false or misleading nature of an answer. Questions of law 87 On the basis of the agreed facts, the following five questions of law have been referred: 1. Is the Tribunal Proceeding a 'civil proceeding' for the purposes of s 106ZPQ(2)(b) of the Health Insurance Act? 2. If the answer to question 1 is 'yes', does s 106ZPQ(2)(b) of the Health Insurance Act apply so as to make the entirety of: (a) the Documents Produced; (b) the Statement of Concerns; (c) the Transcript Extract; (d) the Final Report; (e) the Final Determination; (f) the Expert Reports; and/or (g) the Overlap Documents; not admissible in evidence against Dr Will in the Tribunal Proceedings? 3. If the answer to question 2 is no, does s 106ZPQ(2)(b) of the Health Insurance Act apply so as to make: (a) the Documents Produced; (b) the Statement of Concerns; (c) the Transcript Extract; (d) the Final Report; (e) the Final Determination; (f) the Expert Reports; and/or -- 34 of 120 -- [2026] WASC 181 SEAWARD J Page 35 (g) the Overlap Documents; not admissible in evidence against Dr Will in the Tribunal Proceedings to the extent the Documents Produced, or alternatively the documents listed in question 3(a) to 3(g), might 'tend to incriminate' Dr Will for the purposes of s 106ZPQ(1) of the Health Insurance Act? 4. If the answer to question 3 is 'yes', to the extent that: (a) the Documents Produced; (b) the Statement of Concerns; (c) the Transcript Extract; (d) the Final Report; (e) the Final Determination; (f) the Expert Reports; and/or (g) the Overlap Documents might: (h) prove that Dr Will has behaved in a way that constitutes professional misconduct or, alternatively, unsatisfactory professional performance; and/or (i) prove that Dr Will has behaved in a way that constitutes unprofessional conduct; and (j) thereby enliven the Tribunal's discretion to make one or more of the Penalty Orders; might the document in question 'tend to incriminate' Dr Will for the purposes of s 106ZPQ(2)(b) of the Health Insurance Act? 5. Does s 106ZR(1) of the Health Insurance Act apply so as to make it unlawful for the Board and/or Dr Will to disclose to the Tribunal (including a legally qualified member, a non-judicial member or an ordinary member of the Tribunal), and/or for the Tribunal to admit into evidence in the Tribunal Proceeding: (a) the Documents Produced; -- 35 of 120 -- [2026] WASC 181 SEAWARD J Page 36 (b) the Statement of Concerns; (c) the Oral Evidence; (d) the Transcript Extract; (e) the Final Report; (f) the Final Determination; (g) the Expert Reports; and/or (h) the Overlap Documents? Legal principles - statutory construction 88 The answers to the questions of law referred involves questions of the correct construction of the Health Insurance Act. 89 The general principles concerning the process of statutory construction are well known and are not in dispute. Statutory construction involves the attribution of objective meaning to the statutory text having regard to considerations of text, context and purpose. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.77 90 In relation to the statutory purpose, the Court of Appeal observed in Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation):78 As to the last matter, statutory purpose, French CJ, Hayne, Kiefel, Gageler and Keane JJ said in Thiess v Collector of Customs: 'Objective discernment of statutory purpose is integral to contextual construction. … For: 77 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69], [71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14]. 78 Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [177] - [178]. -- 36 of 120 -- [2026] WASC 181 SEAWARD J Page 37 "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."' The statutory purpose of legislation may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions. (citations omitted) 91 The court may have regard to extrinsic material to confirm the ordinary and natural meaning of statutory provisions or in cases of ambiguity or uncertainty, but extrinsic material cannot be used to negate the plain meaning of statutory provisions.79 92 The provisions of the statute must be understood, if possible, as parts of a coherent whole.80 As observed by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority:81 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. (citations omitted) 93 Where the text, read in context, permits more than one potential meaning, the choice between those meanings may turn on an evaluation 79 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]. 80 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70]; Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 [16]; Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [181]. 81 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70]. -- 37 of 120 -- [2026] WASC 181 SEAWARD J Page 38 of the relative coherence of each with the scheme of the statute and its identified objects or policies.82 94 Where two or more Acts comprise part of an overlapping legislative scheme, the Acts should, if possible, be construed together for the purpose of answering any question arising under them and in a way which gives the scheme a harmonious operation.83 Question 1 - is the Tribunal Proceeding a 'civil proceeding' for the purposes of s 106ZPQ(2)(b) of the Health Insurance Act? Overview of the parties' submissions 95 By way of overview, the Commonwealth and Dr Will submit that proceedings in the Tribunal under the National Law fall within the meaning of 'any civil proceedings' in s 106ZPQ(2)(b) of the Health Insurance Act. The Board submits that, properly construed, the prohibition in s 106ZPQ(2)(b) of the Health Insurance Act does not extend to proceedings in the Tribunal under s 193 of the National Law, where a referral has been made to the Board under s 106XB(2) of the Health Insurance Act. 96 The parties agree that the question is one of statutory construction. The Board accepts that the text of s 106ZPQ(2) tends against its construction. However, the Board submits that the broader context of the Health Insurance Act, in particular the provisions regarding referrals contained in s 106XA and s 106XB of the Health Insurance Act, and the purpose of these provisions, supports its construction. The Commonwealth and Dr Will submit that nothing in the broader context or purpose of the Health Insurance Act suggests any broadening of the scope of s 106ZPQ(2)(b) beyond its text. Text 97 Owing to its central importance, it is convenient to restate the text of s 106ZPQ: (1) A person who is required under subsection 89B(2) or 105A(2) to produce documents for inspection is not entitled to refuse to produce the documents on the ground that the production of the documents might tend to incriminate him or her. 82 Mohammadi v Bethune [2018] WASCA 98 [34]; Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [180]. 83 Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 726; Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211; (2014) 48 WAR 300 [161]. -- 38 of 120 -- [2026] WASC 181 SEAWARD J Page 39 (2) However, the production of any such documents, and any information or thing (including any document) obtained as a direct or indirect result of the production of the documents, is not admissible in evidence against the person in: (a) any criminal proceedings other than proceedings for an offence against section 106ZPP; or (b) any civil proceedings other than proceedings before a Committee or the Determining Authority. 98 By its terms, s 106ZPQ abrogates the privilege against self-incrimination for a person under review who receives a notice from either the Director (under s 89B(2)) or a Committee (under s 105A(2)), to produce documents. 99 The privilege against self-incrimination is a fundamental common law right which attracts the principle of statutory construction known as the principle of legality. It is a common law right which is not to be regarded as abrogated by statute unless Parliament has used language which manifests a clear intention to do so.84 It is not in dispute that s 106ZPQ(1) is clear in its abrogation of the privilege against self-incrimination in response to a notice to produce documents under either s 89B(2) s 105A(2) of the Health Insurance Act. 100 Section 106ZPQ(2) goes on to provide some compensation to a person who is unable to rely on the privilege, by placing limits on the use which can be made of the documents and information produced in response to a notice under s 89B(2) and s 105A(2). 101 Questions 2, 3 and 4 concern the precise documents and information to which s 106ZPQ(2) applies, and I consider those questions later in these reasons. Question 1 is concerned with the use which can be made of documents and information falling within the scope of s 106ZPQ. 102 Section 106ZPQ(2) provides both a direct and derivative use immunity for the relevant documents or information. By its terms, s 106ZPQ(2) prevents the documents produced, or any information or thing obtained as a direct or indirect result of their production, from being admitted in evidence in: 84 R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8; (2016) 256 CLR 459 [40] - 48]; Bhalsod v Perrie [2018] WASCA 108 [167] - [168]. -- 39 of 120 -- [2026] WASC 181 SEAWARD J Page 40 (a) any criminal proceedings other than proceedings for an offence against s 106ZPP (which concerns producing false or misleading documents); or (b) any civil proceedings other than proceedings before a Committee or the Determining Authority. 103 In my view, the text of s 106ZPQ favours a broad construction of the term 'any civil proceedings', including one which is not limited to curial proceedings and therefore would encompass proceedings of a type before the Tribunal pursuant to s 193 of the National Law. 104 In this regard, I observe that the term 'civil proceedings' is not defined in the Health Insurance Act. Textually, the term 'civil' can be contrasted with the term 'criminal' in s 106ZPQ(2)(a). 105 The Macquarie Dictionary definition of 'proceedings' is as follows: 1. a particular action or course of action. 2. action, course of action, or conduct. 3. the act of someone or something that proceeds. 4. (plural) records of the doings of a society. 5. Law a. the instituting or carrying on of an action at law. b. a legal step or measure: to institute proceedings against a person. 106 Similar definitions are contained in the Oxford Dictionary. 107 I do not find these definitions to be of much assistance in the present case. As outlined by Smart J in Blake v Norris:85 The word 'proceeding' is capable of such a variety of meaning that dictionary definitions as to its ordinary or natural meaning are not of much use. They tend to highlight the number of meanings which the word can bear. Any assistance as to its meaning has to be derived from the statutory context and the objects of the legislation in question. 85 Blake v Norris (1990) 20 NSWLR 300, 306. See also Reynolds v Panten [No 1] [1999] WASCA 89; (1999) 23 WAR 215 [54] - [56]; Clark v Marine Fire & Security Pty Ltd [2005] WASCA 188 [37]. -- 40 of 120 -- [2026] WASC 181 SEAWARD J Page 41 108 The use of the term 'any' in s 106ZPQ(2)(b) is also a wide and inclusive term. 109 Significantly, s 106ZPQ(2)(b) expressly excludes from the scope of 'any civil proceedings', proceedings before a Committee or the Determining Authority. The express exclusion of these administrative proceedings under the Health Insurance Act tends against a narrow interpretation of 'any civil proceedings', and one limited only to curial civil proceedings. Such a narrow interpretation would render the reference to proceedings before a Committee or the Determining Authority superfluous. 110 In light of the above, I accept that on the plain meaning of the text alone, proceedings before the Tribunal pursuant to s 193 of the National Law, fall within the scope of 'any civil proceedings' for the purposes of s 106ZPQ(2)(b) of the Health Insurance Act, and therefore attract the operation of the immunity provided for in that section. 111 However, it is also necessary to have regard to the broader statutory context of s 106ZPQ(2) as well as the purpose of the Health Insurance Act and its relevant provisions. Context 112 The Board relies on three contextual elements in support of its construction of s 106ZPQ(2) of the Health Insurance Act: (a) the existence of the referral powers under s 106XA and s 106XB of the Health Insurance Act; (b) that s 106ZPQ(2) is a general power that must be read as subject to the specific referral powers in s 106XA and s 106XB; and (c) other references in the Health Insurance Act to 'civil proceedings'. 113 The Commonwealth and Dr Will submit that nothing in the broader provisions of the Health Insurance Act support any reading contrary to the plain wording of the text. The Commonwealth and Dr Will also refer to other provisions in the Health Insurance Act in support of their construction. 114 I accept the submission made by the Commonwealth and Dr Will. For the following reasons, I do not consider that the broader context of the Health Insurance Act supports the Board's construction. -- 41 of 120 -- [2026] WASC 181 SEAWARD J Page 42 Referral under s 106XB 115 The primary contextual element relied on by the Board in support of its construction is the referral power contained in s 106XB of the Health Insurance Act, and the associated referral power in s 106XA of the Health Insurance Act. Parties' submissions 116 The Board submits that if 'any civil proceedings' does not include proceedings before the Tribunal, then if a referral is made under s 106XB the Board will be unable to use any information or documents provided as part of the referral, that also fall within the scope of s 106ZPQ(2), as evidence in any proceedings before the Board. 117 In these circumstances, the Board submits that there is a clear tension between s 106ZPQ(2)(b), and the referral powers in s 106XA and s 106XB, and the construction advanced by the Commonwealth and Dr Will would have the effect of undermining the referral power and making it impossible for the Board to investigate and then refer a matter to the Tribunal under s 193 of the National Law. 118 The Board submits that the breadth of the immunity clause in s 106ZPQ(2) would mean that virtually all steps taken by the Board after receiving the referral would, at least indirectly, be as a result of having read the referral and the documents. 119 The Board submits this cannot have been what was intended, and that rather the reference in s 106ZPQ(2)(b) to civil proceedings must be intended to exclude disciplinary proceedings in the Tribunal under the National Law against a health practitioner in respect of whom the Director has referred a statement of concerns and associated materials under s 106XB, at least in respect of the documents or information contained in the statement and materials that the Director was required to provide. 120 The Board also submits that in circumstances where the Health Insurance Act contemplates the existence of other regulatory and disciplinary bodies and associated legislation (including the National Law and the Board), and expressly provides for a mandatory power of referral of not only a statement of concerns, but also, significantly, the material on which those concerns are based, a construction that has regard to and facilitates the entire legislative scheme ought be preferred. -- 42 of 120 -- [2026] WASC 181 SEAWARD J Page 43 121 In response, the Commonwealth submits that the Board overstates the potential for s 106ZPQ to reduce the utility of the referral powers under s 106XA and s 106XB of the Health Insurance Act. The Commonwealth accepts that its construction imposes limits on the use which the Board can make of any material referred to it by the Director, and that there may need to be careful management of those documents and information by the Board. However, the Commonwealth submits that s 106ZPQ(2) does not prevent either: (a) a referral pursuant to s 106XA or s 106XB to a body such as the Board; or (b) a body such as the Board from using information or documents included in the referral, that also fall within the scope of s 106ZPQ(2), as part of considering whether to conduct its own investigation, or from taking other action that does not involve seeking to use the information or material (directly or indirectly) as evidence in criminal or civil proceedings. 122 The Commonwealth submits that the function of s 106XA and s106XB is one of notification, and nothing in its construction of s 106ZPQ prevents that notification from taking place. 123 Once notified, the Commonwealth submits that it is a matter for the Board as to how it uses the information contained in the referral. The Commonwealth submits that the National Law reveals that the functions of the Board are staged. In particular, the Board must first conduct an initial assessment of a referral, and then it may decide to undertake an investigation. 124 The Commonwealth submits that the reference to 'civil proceedings' in s 106ZPQ(2)(b) is not sufficiently broad to encompass administrative functions. The Commonwealth therefore submits that the direct and derivative use immunity would not prevent a body such as the Board undertaking those administrative functions. 125 The Commonwealth submits that if a decision is made to investigate and to appoint an investigator, it is possible for the Board to put in place procedures to quarantine information falling within the scope of s 106ZPQ(2). For example, the Board could appoint an investigator in reliance on the material referred, and direct the investigation of a particular practitioner over a particular period of time, without providing further information or documents. The investigator -- 43 of 120 -- [2026] WASC 181 SEAWARD J Page 44 would then use their own powers under the National Law to carry out the investigation, including the power to obtain documents. 126 In this regard, the Commonwealth refers to the decision of Incollingo v Tax Practitioners Board,86 in which Bromwich J considered the application of s 128 of the Evidence Act 1995 (Cth). Section 128 provides for the provision of a certificate in circumstances where a witness objects to giving evidence on the ground that the evidence may tend to prove that the witness has committed an offence or is liable to a civil penalty. Section 128(7) provides that in any proceeding in an Australian court, evidence given by a person in respect of which such a certificate has been given, and evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. That is, s 128(7) also contains a direct and derivative use immunity. When considering the scope and application of that immunity, Bromwich J observed that:87 Section 128(7) is designed to protect a person giving incrimination information under legal compulsion from having that used against them. However, it is not an absolute barrier to such information, and derivative information, being used in the course of an investigation, provided that both are quarantined from the ultimate decision-maker and no contamination takes place. 127 Bromwich J held that the purpose of the immunity was:88 … directed to ensuring that material covered by a s 128 certificate is not used directly or derivatively by a decision-maker in ultimately deciding whether particular conduct has taken place, whether it transgresses a law of some kind in some way, and if so, what sanction should be applied. It is not directed to preventing any non-contaminating antecedent use … 128 Bromwich J therefore held, on the facts of that case, that the restriction on direct use or derivative use applied to the relevant committee in considering the material placed before it, but did not apply to the investigative stage before then, including in the making of the investigation decision. However, Bromwich J observed that his decision was not without practical difficulties:89 86 Incollingo v Tax Practitioners Board [2023] FCA 878. 87 Incollingo v Tax Practitioners Board [2023] FCA 878 [98]. 88 Incollingo v Tax Practitioners Board [2023] FCA 878 [101]. 89 Incollingo v Tax Practitioners Board [2023] FCA 878 [102]. -- 44 of 120 -- [2026] WASC 181 SEAWARD J Page 45 The Board still needs to be wary about use, and particularly derivative use, of material covered by a s 128 certificate, lest that infect what is provided to a Conduct Committee. That would not inevitably lead to the conclusion that such material cannot be used, as it arguably was, in the derivative sense, by the initiation of inquiries following the reporting of, and obtaining of [material including material for which a certificate was given]. However, ultimately this did no more than detect conduct on the part of Mr Incollingo that ultimately led to an investigation overtly based on [other material for which a certificate had not been given] and the assembly of submissions and supporting material for the consideration of the Conduct Committee independently of use or derivative use of such material. 129 The Commonwealth submits that, consistent with Bromwich J's decision, if the Board initiates an investigation, the Board will need to, and can, take steps to ensure that the product of its own investigation does not offend against s 106ZPQ(2) by quarantining the referred information and documents falling within the scope of s 106ZPQ(2). 130 Finally, the Commonwealth also relies on its submissions in relation to questions 2, 3 and 4, and submits that the appropriate construction of s 106ZPQ(2) is that only documents produced in response to a notice to produce, which would in fact tend to incriminate a person, fall within the scope of s 106ZPQ(2)(b). Therefore, the Commonwealth submits that the scope for s 106ZPQ(2) to limit the Board's powers is further limited. Conclusion 131 In all the circumstances, I accept that the effect of the plain wording of s 106ZPQ(2)(b) may, depending on the facts, prove complex for a body which receives a referral under s 106XA or s 106XB to manage. However, I do not consider that the existence and effect of the referral powers is such as to displace the plain meaning of the text of s 106ZPQ(2)(b) so as to extend the specified exceptions to include proceedings before the Tribunal under s 193 of the National Law. 132 In this regard, I accept the submission by the Commonwealth that s 106ZPQ(2)(b) itself does not prevent or limit the Director in referring matters under s 106XA and s 106XB. That is, the Director is still able to make the necessary referrals because doing so does not result in the Director seeking to use any documents or information falling within the scope of s 106ZPQ(2)(b) in evidence in any criminal or civil proceedings. -- 45 of 120 -- [2026] WASC 181 SEAWARD J Page 46 133 It is also relevant to observe that not every referral under s 106XA and s 106XB will automatically contain documents that fall within the scope of s 106ZPQ. It may be that in some cases there are no documents which the person under review objects to producing on the grounds of self-incrimination. In other cases it may be that even if such documents or information have been produced, those documents are not relevant to the statement of concerns, and do not form part of any referral. 134 To the extent that documents or information which fall within the scope of s 106ZPQ are included in a statement of concerns or the attached documents under s 106XA or s 106XB, I observe that the prohibition in s 106ZPQ(2)(b) is concerned with using the documents or information in evidence in any criminal or civil proceedings. In this regard, given the nature of the functions and powers of the Board as outlined earlier in these reasons, the prohibition will not necessarily prevent the Board from taking any action at all. For example, it would not, on its face, prevent the use of the documents or information by the Board to consider whether an investigation by the Board is appropriate. 135 However, I accept the Commonwealth's submission that management of any documents or information falling within the scope of s 106ZPQ will require careful management by a body such as the Board, in order to ensure that it does not breach the prohibition in s 106ZPQ(2)(b). What that will look like in any one case will depend upon the facts of the case, including the nature of the information or documents, and the actions that the body in question wishes to take. 136 Dr Will also submits that s 106ZPQ(2) will not have the effect of hampering the Board's ability to investigate a matter that has been referred to it by the Director and in no way stultifies an investigation that the Board may be making. Counsel for Dr Will submits that, for example, the Board could provide directions to an investigator to ask a health practitioner certain questions, or issue a notice to produce to a practitioner in relation to specific documents, without informing the investigator of what the health practitioner may have said in the course of a Committee hearing (or presumably what is contained in documents produced pursuant to a notice to produce and which fall within the scope of s 106ZPQ(2)). 137 It is not necessary, and nor is it possible, for me to consider any proposed use of specific referred material by the Board outside of that contained in the referral. However, I have difficulty with the examples -- 46 of 120 -- [2026] WASC 181 SEAWARD J Page 47 provided by counsel for Dr Will. I consider a real question arises whether they would, in all cases, fall outside the scope of the derivative use immunity for the purpose of s 106ZPQ(2). 138 Also relevant to my consideration of this aspect of the question of context, are my conclusions reached in relation to referred questions 2, 3 and 4. For the reasons outlined in relation to each of these questions, I am also of the view that the breadth of the documents that will fall within the scope of the prohibition in s 106ZPQ(2)(b) is limited in the manner which I have concluded. 139 When considering this aspect of the question of context, I have also had regard to the principle of construction that where two or more Acts comprise part of an overlapping legislative scheme, the Acts should, if possible, be construed in a way which gives the scheme a harmonious operation.90 140 The relevant principle of statutory construction was outlined by the Court of Appeal in Mohammadi v Bethune as follows:91 Where two or more statutory enactments comprise the overlapping legislative scheme, the enactments should be construed accordingly, and the court should endeavour to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation. (citations omitted) 141 See also Trajkoski v Director of Public Prosecutions (WA),92 Southside Autos (1981) Pty Ltd v Commissioner of State Revenue,93 Sweeney v Fitzhardinge94 and Commissioner of State Revenue v Abbotts Exploration Pty Ltd.95 142 This principle of construction has also been applied to schemes consisting of legislation enacted by different state parliaments as part of a reciprocal scheme. See by way of example Abdi v Release on Licence Board96 (dealing with interstate transfer of prisoners) and 90 Mohammadi v Bethune [2018] WASCA 98 [36]; Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211; (2014) 48 WAR 300 [161]. 91 Mohammadi v Bethune [2018] WASCA 98 [36]. 92 Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 [50]. 93 Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245 [64]. 94 Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 726. 95 Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211; (2014) 48 WAR 300 [161]. 96 Abdi v Release on Licence Board (1987) 10 NSWLR 294; (1987) 31 A Crim R 436, 295. -- 47 of 120 -- [2026] WASC 181 SEAWARD J Page 48 Attorney General for New South Wales v FJG97 (dealing with the registration of marriages). 143 This principle of construction has also been applied to overlapping federal and state legislation that deals with the various aspects of the same activity. See by way of example Clegg v Western Australia [No 2],98 dealing with the Misuse of Drugs Act 1981 (WA) and the Therapeutic Goods Act 1989 (Cth). 144 It is not entirely clear to me that an overlapping legislative scheme of the type envisaged in these authorities exists in the present case. 145 It is clear that the Health Insurance Act contemplates the existence of the National Law and the bodies established under it such as the Board. The Health Insurance Act also contemplates that there may be a factual overlap between matters falling within 'inappropriate practice' under pt VAA of the Health Insurance Act, and 'professional issues' of a type falling within the scope of the National Law.99 The referral powers evidence that contemplation and were included to ensure that matters are referred to the appropriate bodies for their consideration. 146 However, the fact that an Act of one parliament contemplates the existence of an Act of another parliament does not, in my view, necessarily mean that the two pieces of legislation are part of an overlapping legislative scheme, or they cover the same activity, such that a provision in one Act should be construed in a manner which gives rise to a harmonious operation with a provision of the other Act. 147 There is nothing in the Health Insurance Act, or the National Law, which expressly provides that they are part of a reciprocal scheme or an overlapping scheme. 148 As outlined later in my reasons in relation to the purpose of the Health Insurance Act, I consider there is a difference between the object and purpose of the scheme enacted in the Health Insurance Act, and the object and purpose of the scheme enacted in the National Law. Whilst this case has not required a consideration of the legislative schemes underpinning the other bodies specified by the Health Insurance (Professional Services Review Scheme) Regulations 2019 (Cth), it may be the case that the legislative schemes underpinning these other bodies also differ. 97 Attorney General for New South Wales v FJG [2023] NSWCA 34; (2023) 111 NSWLR 105 [44]. 98 Clegg v The State of Western Australia [No 2] [2017] WASCA 30; (2017) 265 A Crim R 201 [7]. 99 Li v Determining Authority [2022] FCA 1448 [87] - [88]. -- 48 of 120 -- [2026] WASC 181 SEAWARD J Page 49 149 Further, the extrinsic materials referred to by the parties, and discussed in more detail later in these reasons, do not, in my view, go so far as to demonstrate that s 106ZPQ(2)(b) should be interpreted in a manner contrary to the plain wording of the text to ensure a more harmonious operation of s 193 of the National Law for the reason that each Act is part of one overlapping legislative scheme. 150 Even if I am wrong in my conclusion about the existence of an overlapping legislative scheme, I observe that the principle of construction is not absolute, and requires the court to endeavour to produce a harmonious construction. 151 For the reasons I have outlined above, and in the context of considering the purpose of the legislative schemes, I am not satisfied that the context and purpose compel a construction of s 106PZQ(2)(b) which is contrary to the plain wording of the text. Section 130 of the Health Insurance Act 152 Dr Will refers to the secrecy provision in s 130 of the Health Insurance Act in support of his construction. Section 130(1) imposes an obligation of confidence on officers in the exercise of their duties under the Health Insurance Act (or other specified legislation) from divulging or communicating to any person, 'any information with respect to the affairs of another person acquired by him or her in the performance of his or her duties, or in the exercise of his or her powers or functions' under the Health Insurance Act. 153 A number of exceptions to this overarching obligation then follow. There have been some amendments to the content of these exceptions prior to the referral to the Tribunal on 9 February 2023, and to the extent they are relevant, they are referred to below. 154 Relevantly, for present purposes are the exceptions contained in s 130(3A) and s 130(4A)(c) which provide: (3A) Notwithstanding anything contained in the preceding provisions of this section, the Secretary or the Chief Executive Medicare may divulge any information acquired by an officer in the performance of duties, or in the exercise of powers or functions, under this Act to an authority or person if: (a) the authority or person is a prescribed authority or person for the purposes of this subsection; and -- 49 of 120 -- [2026] WASC 181 SEAWARD J Page 50 (b) the information is information of a kind that may, in accordance with the regulations, be provided to the authority or person. … (4A) This section does not prohibit: … (c) information that: (i) has been provided to a prescribed professional disciplinary body or a prescribed professional regulatory body; and (ii) was contained in a claim for a medicare benefit; from being used by the body for the purpose of any investigation or inquiry being conducted by the body in the performance of its functions or the exercise of its powers. 155 As at 28 February 2017, the Health Insurance Regulations 1975 (Cth) prescribed various persons and bodies for the purposes of s 130(3A) of the Health Insurance Act. These included the Board.100 However, there were no prescribed professional disciplinary bodies or prescribed professional regulatory bodies for the purposes of s 130(4A)(c)(i) of the Health Insurance Act. 156 The 1975 Regulations were repealed on 1 October 2018 and replaced with the Health Insurance Regulations 2018 (Cth) (2018 Regulations) the 2018 Regulations prescribed various persons and bodies for the purposes of s 130(3A) of the Health Insurance Act, and again these included the Board.101 Regulation 94 of the 2018 Regulations went on to prescribe the professional disciplinary bodies and professional regulatory bodies for the purposes of s 130(4A)(c)(i) of the Health Insurance Act, and these included the Board. 100 Health Insurance Regulations 1975 (Cth), reg 27 and sch 3. 101 Health Insurance Regulations 2018 (Cth), reg 93. -- 50 of 120 -- [2026] WASC 181 SEAWARD J Page 51 157 Another relevant exception is s 130(6)(e), which permits the Secretary or the Chief Executive Medicare to divulge information about specified offences and pecuniary penalty orders to:102 A person or body who, under the National Law, is required or permitted to: (i) take disciplinary action with respect to practitioners, optometrists, midwives or nurse practitioners; or (ii) investigate practitioners, optometrists, midwives or nurse practitioners in connection with the taking of such disciplinary action; 158 A further relevant exception is s 130(7)(g), which permits the Secretary or the Chief Executive Medicare to divulge information falling within the scope of a certificate issued by the Minister, which certifies that it is desirable for the information to be divulged for the purposes of the administration of the National Law to the extent it provides for the registration of practitioners, optometrists, midwives or nurse practitioners. That information can be provided to the person or body who, under the National Law, is required or permitted to:103 (i) take disciplinary action with respect to practitioners, optometrists, midwives or nurse practitioners; or (ii) investigate practitioners, optometrists, midwives or nurse practitioners in connection with the taking of such disciplinary action; 159 Dr Will submits that s 130(4A)(c) is an example of the Health Insurance Act expressly providing when documents may be used by a prescribed professional disciplinary body or a prescribed professional regulatory body, and if it had also been intended that documents or information falling within the scope of s 106ZPQ could be used by these bodies, then the Health Insurance Act would have expressly stated this. 160 I accept that the wording of s 130, and in particular the various exemptions referred to above, is a contextual feature which tends against the Board's construction. 102 Section 130(6) was amended to this form on 16 June 2021 by s 3 and sch 1 item 48 of the Health Insurance Amendment (General Practitioners and Quality Assurance) Act 2020 (Cth), and therefore was in effect on the date of the referral to the Tribunal on 9 February 2023. 103 Section 130(7) was amended to this form on 16 June 2021 by s 3 and sch 1 items 49 - 51 of the Health Insurance Amendment (General Practitioners and Quality Assurance) Act 2020 (Cth), and therefore was in effect on the date of the referral to the Tribunal on 9 February 2023. -- 51 of 120 -- [2026] WASC 181 SEAWARD J Page 52 161 The wording of s 130 of the Health Insurance Act is an example of the legislature making express provision for the exemption of particular bodies or persons from obligations in the Health Insurance Act. These bodies or persons include bodies operating under the National Law. 162 The fact that s 106ZPQ(2)(b) does not make such an express provision for bodies such as the Board, either by express reference or by excluding prescribed bodies or persons (and then so prescribing), in circumstances where other bodies are expressly excluded, is a contextual feature of the Health Insurance Act in support of the construction advanced by the Commonwealth and Dr Will. Other references to 'proceedings' in the Health Insurance Act 163 Each of the parties have referred me to other provisions of the Health Insurance Act where reference is made to 'proceedings' as providing contextual support for their respective constructions. 164 Ultimately, having considered each of the other provisions referred to by the parties, I have not found any to be of much assistance to the statutory construction task. 165 The Board refers to the following provisions: 166 First, the Board relies on s 90(2), s 96(7) and s 106F(4) which fall within pt VAA of the Health Insurance Act. 167 Section 90(1) of the Health Insurance Act provides that the Director may consult with specified persons in order to obtain assistance in making his or her decision on a review. Section 90(2) provides that an 'action or proceeding, whether civil or criminal', does not lie against a person consulted by the Director for any statement made, or information given, in good faith. 168 Section 96 of the Health Insurance Act is concerned with challenging appointments to a Committee. A person under review may challenge the appointment of a Committee member (s 96(1)) and the challenge is considered by the Director (s 96(3)). A challenge must be in writing (s 96(2)), and s 96(7) provides that an 'action or proceeding, whether civil or criminal' does not lie against the person under review for any statement or information given in good faith in connection with a challenge. 169 Section 106F of the Health Insurance Act is concerned with the protection of Committee members, representatives and witnesses at -- 52 of 120 -- [2026] WASC 181 SEAWARD J Page 53 hearings before a Committee. The section provides that a person appearing at a Committee hearing on behalf of another person, has the same protection and immunity as a barrister appearing for a party in proceedings in the High Court (s 106F(2)), and that a person appearing as a witness has the same protection, and is (in addition to the penalties in the Health Insurance Act), subject to the same liabilities as a witness in proceedings in the High Court (s 106F(3)). Section 106F(4) then goes on to provide that an 'action or proceeding, whether civil or criminal' does not lie against a person who, without giving evidence at a hearing, gives a document to the Committee in his or her capacity as a consultant to the Committee'. 170 It is not immediately clear to me that any of these above sections are referring to only curial proceedings. On their terms, the reference to 'action or proceeding, whether civil or criminal' would include curial proceedings, but there is no textual reason why each could not include, for example, non-curial disciplinary proceedings. 171 Secondly, the Board refers to pt VIA of the Health Insurance Act, which is concerned with civil penalties. The Board submits that with respect to the interaction between civil penalties and criminal proceedings, the words 'civil proceedings' are used. In particular, the Board refers to s 125A(4), s 125E, s 125F and s 125G. 172 I do not consider these provisions are of much assistance to the present construction task. 173 Section 125A(1) of the Health Insurance Act provides that within six years of a person contravening a civil penalty provision, the Chief Executive Medicare may apply to the Federal Court of Australia for an order that the wrongdoer pay the Commonwealth a pecuniary penalty. The remaining sections referred to by the Board concern those proceedings in the Federal Court: (a) s 125A(4) requires the Federal Court to apply the rules of evidence and procedure for civil matters; (b) s 125E provides that the Federal Court must not make a pecuniary penalty order against a person if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention; -- 53 of 120 -- [2026] WASC 181 SEAWARD J Page 54 (c) s 125F provides for proceedings for a pecuniary penalty order to be stayed if criminal proceedings are started; and (d) s 125G provides that criminal proceedings may not be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision, if a pecuniary penalty order has been made against the person for that conduct. 174 A narrower meaning of 'proceedings' in pt VIA is consistent with the focus of pt VIA on curial proceedings in the Federal Court. That is, the meaning of 'proceedings' in pt VIA takes its colour from its statutory context, which is different to the statutory context of s 106ZPQ(2) of the Health Insurance Act. 175 The Commonwealth, on the other hand, contrasts the heading in pt VAA, div 4, sub-div B of 'Proceedings of Committees' with the text of s 94(2A) (in pt VAA, div 3A) which refers to 'court proceedings'. The Commonwealth submits that where the intention was to refer to curial proceedings, appropriate language was used. 176 However, s 94(2A) was only inserted into the Health Insurance Act on 25 November 2023,104 being after the referral by the Board to the Tribunal on 9 February 2023. I therefore do not consider it is of any assistance to the question of construction. 177 I also do not consider the heading of pt VAA, div 4, sub-div B, of 'Proceedings of Committees' is of much assistance. This subdivision is concerned, as the title suggests, with the mechanics of proceedings of a Committee. It is therefore using the word 'proceedings' in a different context to s 106ZPQ(2). The same can be said about the other reference to 'proceedings' in that sub-div in s 98(1). 178 Finally, the Commonwealth also refers to another situation in the Health Insurance Act where the privilege against self-incrimination is abrogated, and a directive and derivative use immunity is provided, being s 106E. However, in that case, the immunity is limited only to use in evidence in criminal proceedings. I therefore do not consider this section to be of any assistance in construing the precise meaning of civil proceedings. 104 Health Insurance Amendment (Professional Services Review Scheme No 2) Act 2023 (Cth), s 3 and sch 1, item 22. -- 54 of 120 -- [2026] WASC 181 SEAWARD J Page 55 Other contextual matters raised by the parties 179 The parties referred to a number of other contextual matters in support of their respective constructions. 180 First, the Board submits that the referral power in s 106XA and s 106XB is an example of a specific power that should be preferred over the general power, being the abrogation of the privilege against self-incrimination in s 106ZPQ. 181 In so doing, the Board relies on the principle of statutory construction outlined in Smith v The Queen.105 That principle applies in circumstances where there is a conflict between the general and specific provisions. 182 I do not consider the present case is one involving a conflict between provisions, or even a general and a specific provision. 183 The relevant sections of the Health Insurance Act in question are directed to different matters and involve different powers and obligations. 184 Section 106XA and s 106XB impose referral obligations on a Committee, the Determining Authority and the Director, and apply at any point whilst those statutory bodies are undertaking their statutory tasks. 185 In comparison, s 106ZPQ(1) is directed to the recipient of a notice to produce documents under s 89B(2) or s 105A(2) and abrogates their privilege against self-incrimination, and applies at the time the notice is answered. 186 Section 106ZPQ(2) is directed to any person wishing to use 'such documents or information' in evidence against the person the subject of the notice. This immunity will apply at the point at which a person seeks to tender or rely on 'such documents or information' as evidence in any criminal or civil proceedings. 187 Understood in this manner, these provisions are not in conflict. Nothing in s 106ZPQ prevents the operation of the referral powers, as the referral powers do not involve the admission into evidence of any documents or information falling within the scope of s 106ZPQ. 105 Smith v The Queen [1994] HCA 60; (1994) 181 CLR 338, 348. -- 55 of 120 -- [2026] WASC 181 SEAWARD J Page 56 188 Further, given the differences between the provisions, I do not consider the referral powers can be described as 'specific' and the abrogation of self-incrimination as 'general'. 189 Secondly, both the Commonwealth and Dr Will rely on the powers of an investigator under the National Law, and in particular the power of an investigator to require the production of documents and answers to questions. Significantly, the investigator's powers in this respect do not abrogate the privilege against self-incrimination. The Commonwealth and Dr Will submit that the Board's construction would have the anomalous effect of a piece of Commonwealth legislation (enacted for a different purpose) enabling the investigator to obtain access to information which he or she would ordinarily be unable to gain access to under the powers conferred by the relevant State or Territory law. 190 The Board submits that the relevant task is to construe the Health Insurance Act. The Board therefore submits that it would not be correct to construe the Health Insurance Act by reference to the particular nuances and powers under the National Law as it exists today, as the current National Law only came into existence in 2024. However, the Board also accepts that it is not entirely irrelevant to have regard to the National Law as indicative of the regimes that it replaced. Further, the Board itself relies on the existence of the referral power in s 193 of the National Law, and the impact of it, in support of its construction. 191 Ultimately, given the number and variety of other bodies to which a referral can be made, and the different legislative schemes underpinning those bodies, I do not consider it is of assistance to construe the provisions of the Health Insurance Act by reference to the powers of one investigator who can be appointed under the National Law. 192 Thirdly, Dr Will refers to and relies on the similarities between proceedings before the Tribunal, and proceedings before a Committee or the Determining Authority in support of a submission that the reference to 'civil proceedings' in s 106ZPQ(2) of the Health Insurance Act must include proceedings analogous to a proceeding before a Committee or the Determining Authority. 193 In this regard, Dr Will submits that proceedings before the Tribunal have many similarities to proceedings before a Committee or the Determining Authority, in that each are bound by the rules of -- 56 of 120 -- [2026] WASC 181 SEAWARD J Page 57 natural justice; each are not bound by the rules of evidence and may inform themselves on any matter as they think fit; each may hold hearings at which each may summons witnesses; and each may make orders for the production of documents and each may administer an oath or take an affirmation. 194 I do not think this submission goes much further than addressing the extent to which proceedings before the Tribunal can be characterised as 'civil proceedings'. I accept that given the express exceptions contained in s 106ZPQ(2), the scope of the term is sufficient to include proceedings before the Tribunal. Purpose 195 I am also of the view that the purpose of both s 106ZPQ, and the purpose of the broader pt VAA of the Health Insurance Act, is consistent with a broad construction of the term 'any civil proceedings', and one which include proceedings of the type before the Tribunal. 196 Turning to s 106ZPQ itself, the purpose of s 106ZPQ(1) is to ensure that both the Director and a Committee are able to obtain from a person under review, all documents relevant to their statutory tasks, and that in due course the Determining Authority is able to perform its statutory task. The purpose of s 106ZPQ(2) is then to provide protection and balance for the person under review, following the abrogation of their fundamental common law right of the privilege against self-incrimination in s 106ZPQ(1). 197 In Hartmann v Commissioner of Police,106 the NSW Court of Appeal held that when construing statutory provisions which abrogate the privilege against self-incrimination, a strict construction of the provisions is to be adopted. Conversely, when construing the corresponding protective provisions, a more liberal interpretation should be adopted:107 The principle that the ingrained nature of the protection against self-incrimination requires a strict construction of provisions said expressly or impliedly to remove that protection also requires that a liberal interpretation be given to the protective provisions in a statute purporting to protect a person from the consequences of the abrogation of the protection against self-incrimination. 106 Hartmann v Commissioner of Police (1997) 91 A Crim R 141. 107 Hartmann v Commissioner of Police (1997) 91 A Crim R 141, 147. -- 57 of 120 -- [2026] WASC 181 SEAWARD J Page 58 198 See also Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v Utility Services Corp Ltd (Ruling No 15).108 199 It is consistent with the purpose of s 106ZPQ(2) that a broad interpretation of the term 'any civil proceedings' be applied, and given the express statutory language, that it include proceedings in bodies such as the Tribunal. 200 Turning to the broader context of pt VAA of the Health Insurance Act. The purpose of pt VAA is to protect the integrity of the Commonwealth medicare benefits programme. In so doing, the purpose of pt VAA is also to protect patients and the community in general from the risks associated with 'inappropriate practice'.109 201 This is to be contrasted with the purpose of the National Law, which includes establishing a national registration and accreditation scheme for the regulation of health practitioners, and providing 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.110 202 In some cases, there may be a factual overlap between conduct that might constitute 'inappropriate practice' (and therefore be the subject of review under pt VAA) and conduct which might ground findings of, for example, unsatisfactory professional performance or unprofessional conduct (and therefore be subject of an investigation and disciplinary action under the National Law). However, the primary purpose of the review under pt VAA is the protection of the medicare benefits programme and not the facilitation of the purposes of the National Law. 203 This primary purpose is reflected in the wording of s 106ZPQ(2), which provides express exceptions to the immunity which are concerned only with matters arising under pt VAA of the Health Insurance Act, being proceedings for an offence against s 106ZPP (relating to false or misleading documents) or proceedings before a Committee or the Determining Authority. 204 The Health Insurance Act recognises the existence of the regime under State and Territory laws such as the National Law, by making 108 Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v Utility Services Corp Ltd (Ruling No 15) [2013] VSC 112 [42] - [51]. 109 Health Insurance Act, s 79A. 110 National Law, s 3. -- 58 of 120 -- [2026] WASC 181 SEAWARD J Page 59 provision for the referral of a statement of concerns and associated material to the relevant body under s 106XA and s 106XB of the Health Insurance Act. However, ultimately the purpose of pt VAA, and the associated document production powers, is not to investigate matters falling outside of the scope of 'inappropriate practice'. History of pt VAA of the Health Insurance Act 205 All parties refer to the legislative history of pt VAA of the Health Insurance Act in support of their construction. 206 The PSR Scheme was introduced to the Health Insurance Act in 1994.111 It has been subject to many amendments since that time. 207 Section 106ZPQ was inserted into the Health Insurance Act in 1999 by the Health Insurance Amendment (Professional Services Review) Bill 1999 (Cth) (1999 Amendment Bill), which also amended the referral power in s 106XA; added the referral power in s 106XB; and amended the information gathering powers in s 89B and s 105A. 208 As outlined in the explanatory memorandum, the 1999 Amendment Bill made various amendments to the PSR Scheme to facilitate the continuing effectiveness of the scheme following the decision of the Full Court of the Federal Court in Adams v Yung.112 209 Whilst the 1999 Amendment Bill made substantial amendments to the PSR scheme, the explanatory memorandum states that amendments did not alter the purpose of the scheme, but rather aimed to improve the administration of the process; clarify the methods of investigating inappropriate practice; and address evidentiary difficulties.113 210 The proposed amendments were informed by and/or recommended in the Report of the Review Committee of the Professional Services Review Scheme, dated March 1999 (1999 Report), which was prepared following a review of the scheme undertaken by a committee chaired by the Australian Medical Association.114 111 Health Legislation (Professional Services Review) Amendment Act 1994 (Cth). 112 Adams v Yung (1998) 83 FCR 248. Explanatory Memorandum to the Health Insurance Amendment (Professional Services Review) Bill 1999 (Cth), 2. 113 Explanatory Memorandum to the Health Insurance Amendment (Professional Services Review) Bill 1999 (Cth), 2. 114 Explanatory Memorandum to the Health Insurance Amendment (Professional Services Review) Bill 1999 (Cth), 2. -- 59 of 120 -- [2026] WASC 181 SEAWARD J Page 60 211 Three key relevant amendments were made in the 1999 Amendment Bill. 212 First, the referral power in s 106XA was replaced in an amended form, and the referral power in s 106XB was inserted, to give effect to recommendation 32 of the 1999 Report,115 which recommended that the Health Insurance Act be amended to give the relevant bodies under the Health Insurance Act the power to:116 refer concerns relating to significant threats to the life or health of persons to State/Territory registration bodies, and matters relating to the practitioner's compliance with professional standards to relevant bodies. 213 The Review Committee included this recommendation for the following reasons: 117 The Review Committee proposes that the following approaches be used to address the different categories of inappropriate practice: • for general professional issues, matters should be referred to appropriate bodies such as Medical Boards … Professional Issues - Referrals PSRCs [Committees] have identified various professional issues in relation to clinical competence and performance; aberrant professional behaviour or beliefs; lack of meaningful continuing medical education; physical or mental impairment; and substance abuse. Organisational issues that can affect patient safety, such as equipment and staffing deficiencies, are also sometimes evident. These issues are relevant for professional practice but in light of the Federal Court's decision in Adams v Yung, are not necessarily relevant to the issue of inappropriate practice relating to the provision of services that attract a Medicare benefit. Currently PSRCs [Committees] must refer concerns about possible serious threats to the life or health of persons to State/Territory registration bodies. Matters relating to a practitioner's compliance with professional standards (for example, compliance with conditions for vocational registration) can only be referred by the DO [Determining Officer] to other bodies such as a General Practice Recognition Eligibility Committee and the Specialist Recognition Advisory Committee. 115 Explanatory Memorandum to the Health Insurance Amendment (Professional Services Review) Bill 1999 (Cth), 23 - 24. 116 Report of the Review Committee of the Professional Services Review Scheme, March 1999, 33. 117 Report of the Review Committee of the Professional Services Review Scheme, March 1999, 1, 32 - 33. -- 60 of 120 -- [2026] WASC 181 SEAWARD J Page 61 The Review recommends that with the creation of a consolidated PSR Agency, the legislation be amended so that the DPSR [Director], PSRCs [Committees] and the DP [Determining Panel] can, at any stage of the process, refer concerns relating to significant threats to the life or health of persons to State/Territory registration bodies, and refer matters to relating to the practitioner's compliance with professional standards to relevant bodies. 214 The expressed purpose of the recommendation was to ensure that matters relevant to professional practice, but not constituting 'inappropriate practice', could be referred to the relevant State or Territory body at any stage of the process.118 215 Secondly, the 1999 Amendment Bill amended s 105A and inserted s 89B. These amendments concerned the powers of the Committee and the Director to order the production of documents. 216 The amendments expanded the powers of a Committee under s 105A by enabling the Committee to order the production of 'relevant documents' both before and during a hearing, and by inserting a definition of 'relevant documents'. The 1999 Amendment Bill also inserted s 89B, which provided the Director with a similar power to require the production of relevant documents for the purposes of undertaking a review. The respective powers to order the production of documents extended to issuing the person under review with a notice to produce documents. 217 Thirdly, the 1999 Amendment Bill inserted s 106ZPQ. 218 The 1999 Report did not address s 106ZPQ, however the explanatory memorandum provides as follows:119 This section mirrors subsection 105A(6) of the current Act and has now been situated in this consolidated area dealing with failure to comply with various provisions. New subsection 106ZPQ(l) provides that self-incrimination is not a valid reason for refusing to produce documents for inspection. New subsection 106ZPQ(2) limits the uses able to be made in proceedings of documents and any other information or matter obtained as a direct result of the production of documents produced at a hearing. Those documents or information are not admissible in evidence against the person producing the material in criminal or civil proceedings 118 Report of the Review Committee of the Professional Services Review Scheme, March 1999, 32 - 33. 119 Explanatory Memorandum to the Health Insurance Amendment (Professional Services Review) Bill 1999 (Cth), 29. -- 61 of 120 -- [2026] WASC 181 SEAWARD J Page 62 except in connection with a prosecution of an offence under section 106ZPP or any proceedings before a Committee or the Determining Authority. 219 Although the explanatory memorandum states that s 106ZPQ 'mirrored' s 105A(6) of the Health Insurance Act, the Twentieth Report of the Senate Standing Committee for the Scrutiny of Bills, dated 8 December 1999, contains a different reference in this respect. 220 By way of explanation, in 1999 the relevant Senate Standing Orders provided that the Senate Standing Committee for the Scrutiny of Bills (Senate Standing Committee) was appointed to report on clauses of bills introduced into the Senate which (relevantly) by express words or otherwise trespass unduly on personal rights and liberties. In this context, the Senate Standing Committee considered s 106ZPQ. The Senate Standing Committee sought advice from the relevant Minister on the following: how any incriminating documents or information might be used against a person under investigation in proceedings before a Committee or Determining Authority; 221 The Minister responded: The new section 106ZPQ of the Bill makes explicit that any documents or information obtained during a PSR process are not admissible in evidence against the person under review in either criminal or civil proceedings, other than criminal proceedings for an offence against section 106ZPP, or any civil proceedings before a Committee or Determining Authority. The insertion of a new section s106ZPQ is consistent with provisions which already existed in the Health Insurance Act 1973 (the Act), specifically subsections 106E(3) and (4) which relate to the use of evidence given by the person under review during the Committee hearing. It does not infringe to any greater degree on the personal rights and liberties than currently provided in the Act under the PSR Scheme. 222 That is, unlike the explanatory memorandum, the answer stated that s 106ZPQ was consistent with subsections s 106E(3) and s 106E(4) of the Health Insurance Act (as opposed to s 105A(6) of the Health Insurance Act). 223 Immediately prior to the 1999 Amendment Bill, neither s 105A(6) nor s 106E applied to the person under review. Prior to the changes made to s 105A by the Health Insurance Amendment (Professional Services Review) Act 1999 (Cth), s 105A concerned the ability of a -- 62 of 120 -- [2026] WASC 181 SEAWARD J Page 63 Committee to issue a written notice requiring a person to produce documents prior to a hearing. The power in s 105A(1) extended to both the person under review and any person. However, s 105A(6) was only concerned with notices issued to persons who were not the person under review, and it provided as follows: (6) A person (other than the person under review) is not excused from producing a document under subsection (3) on the ground that the production of the document may incriminate the person. 224 Section 105A(7) went on to provide: (7) A document produced under subsection (3), and any information or thing (including a document) obtained as a direct or indirect result of producing the document, is not admissible in evidence against the person in any criminal proceedings or proceedings for recovery of a pecuniary penalty. 225 At the same time, s 106E was concerned with a witness giving evidence at a hearing (whether summoned to appear or not) and, in accordance with s 106E(7), did not apply to a person under review. The relevant subsections of 106E that were referred to in the 1999 Report provided as follows: (3) A person is not excused from answering a question or producing a document under subsection (1) on the ground that the answer, or production of the document, may incriminate the person. (4) An answer given or document produced under subsection (1), and any information or thing (including any document) obtained as a direct or indirect result of answering the question or producing the document, is not admissible in evidence against the person in any criminal proceedings. 226 The submissions by the Commonwealth drew attention to the fact that s 105A(6), s 105A(7) and s 106E did not apply to the person under review. I do not consider much turns on this. I understand the references in the extrinsic materials to s 105A and s 106E as simply pointing to an example of the Health Insurance Act already abrogating the privilege against self-incrimination, and adopting a direct and derivative use immunity, albeit in relation to other individuals and in different terms. 227 When the history of the provisions is considered, I am of the view that they are consistent with and support the plain wording of the text of s 106ZPQ(2). -- 63 of 120 -- [2026] WASC 181 SEAWARD J Page 64 228 The scope of the immunity introduced by the 1999 Amendment Bill extends to both criminal proceedings and civil proceedings (save for the express exceptions), whereas the previously existing immunity in s 105A(7) extended only to criminal proceedings or proceedings for the recovery of a pecuniary penalty, and the immunity in s 106E extended only to criminal proceedings. This broader wording is consistent with a broad approach to the meaning of the term 'any civil proceedings'. 229 Further, there is no reference in the text of the immunity to extending the exceptions to include use as evidence in proceedings by any body who received a referral under s 106XA or s 106XB. This is notwithstanding that both s 106XB and s 106ZPQ were introduced to the Health Insurance Act in the same set of amendments. 230 Accordingly, when drafting s 106ZPQ(2), the Parliament chose different and broader wording for the immunity than already existed in other sections of the Health Insurance Act. The Parliament also introduced the referral power in s 106XB (and amended the referral power in s 106XA), but did not include an exemption for use in evidence by bodies the subject of a referral under s 106XA or s 106XB. 231 The Board submits that there is nothing in the explanatory memorandum to suggest that s 106ZPQ(2) was intended to expand the scope of the prohibition beyond criminal proceedings or proceedings for the recovery of a pecuniary penalty, or to suggest that the prohibition was intended to apply to the new referral duty in s 106XB. 232 I do not accept this submission. 233 The extrinsic materials must be read in the context of the text of the relevant provisions. In this case, the plain wording of s 106ZPQ(2) reveals an intention to expand the scope of the prohibition beyond criminal proceedings or proceedings for the recovery of a pecuniary penalty, because different language is used than that previously existing in other provisions in the Health Insurance Act. Further, there is no reference in the text of s 106ZPQ(2) to the exception to the immunity extending to the use in evidence in proceedings by any body who received a referral under s 106XA or s 106XB, in circumstances where other exceptions are expressly stated. 234 In this context, the fact that the extrinsic materials do not include any reference to the scope of the prohibition extending beyond criminal proceedings or proceedings for the recovery of a pecuniary penalty, or -- 64 of 120 -- [2026] WASC 181 SEAWARD J Page 65 make any reference to the prohibition not intending to apply to the new referral duty in s 106XB, is unsurprising and is consistent with the plain wording of the text. 235 The Board also submits that s 106ZPQ(2)(b) was inserted into the Health Insurance Act at a time when Parliament intended to strengthen, not reduce, the powers of regulatory bodies to deal with referred matters. I consider this submission overstates the purpose of the referral powers inserted or amended by the 1999 Amendment Bill. The wording of the explanatory memorandum and the 1999 Report is concerned with addressing the situation where Committees have identified matters that fall outside the scope of 'inappropriate practice' and providing the ability for these matters to be referred by Committees and the Director to the relevant State or Territory bodies. The wording does not go further and does not address matters to do with the powers of the State or Territory bodies. Conclusion to question 1 236 For the reasons outlined above, I am therefore of the view that the Tribunal Proceeding is a 'civil proceeding' for the purposes of s 106ZPQ(2)(b) of the Health Insurance Act. Questions 2 and 3 237 It is convenient to consider questions 2 and 3 together. Each concern the nature of the documents that fall within the scope of the immunity contained in s 106ZPQ(2) of the Health Insurance Act. Overview of the parties' submissions 238 The Commonwealth submits that the answer to questions 2 and 3 is that s 106ZPQ(2)(b) only applies to prevent material being admitted in evidence against a person in civil proceedings to the extent that the material is either: (a) a document that a person was required to produce which the person would have been entitled to refuse to produce on the ground that the production might tend to incriminate them; or (b) information (or a document) obtained as a direct or indirect result of the production of the incriminating material. 239 The Commonwealth submits that the text of s 106ZPQ(2), and in particular the punctuation combined with the use of the word 'and', -- 65 of 120 -- [2026] WASC 181 SEAWARD J Page 66 reveals that it applies to prevent two kinds of material being admitted in evidence against the person under review: (a) first, the production of 'any such documents'; and (b) secondly, any information or thing (including any document) obtained as a direct or indirect result of the production of the documents. 240 The Commonwealth submits that the reference to 'any such documents' is a reference to the documents falling within s 106ZPQ(1), being documents that a person was required to produce pursuant to a notice under s 89B(2) or s 105A(2), which the person would, but for s 106ZPQ(1), have been entitled to refuse to produce on the ground that the production might tend to incriminate the person. The Commonwealth submits that any broader reading of 'any such documents' would create the anomalous construction of the immunity applying to a significantly broader category of materials than the abrogation of the privilege in s 106ZPQ(1). 241 The primary position of the Board is that the answer to both questions is 'inapplicable', on the basis of its submission regarding question 1, being that the immunity does not extend to the Tribunal proceedings. However, if the Board's submission regarding question 1 is not accepted, the Board adopts the Commonwealth's submissions as to the answers to questions 2 and 3. 242 Dr Will, on the other hand, submits that the answer to question 2 is that s 106ZPQ(2) applies so as to make all of the categories of documents inadmissible against Dr Will in the Tribunal proceedings, except for categories (a) (the Documents Produced) and (g) (the Overlap Documents). 243 For question 3, Dr Will submits that if his submissions in relation to question 2 are accepted, then question 3 does not arise. However, if Dr Will's submissions in relation to question 2 are not accepted, Dr Will again submits that s 106ZPQ(2) applies so as to make all of the categories of documents inadmissible against Dr Will in the Tribunal proceedings, except for categories (a) (the Documents Produced) and (g) (the Overlap Documents). 244 Dr Will submits that s 106ZPQ(2) is concerned with two types of evidence: -- 66 of 120 -- [2026] WASC 181 SEAWARD J Page 67 (a) first, evidence of the production of documents, as opposed to evidence of the particular documents themselves. Dr Will submits that the reference to 'any such documents' is a reference to any documents produced pursuant to a notice to produce, and not only those documents that a person was required to produce which the person would have been entitled to refuse to produce on the ground that the production might tend to incriminate them, but for the existence of s 106ZPQ(1); and (b) secondly, evidence of any information or thing (including any document) obtained as a result of the production of any of the documents pursuant to a notice to produce, and is not limited to the direct or derivative use of any information or thing obtained as a result of any documents that a person was required to produce pursuant to a notice to produce which might tend to incriminate the person. 245 Dr Will submits that his construction of the words 'any such documents' is supported by the following: (a) the text of s 106ZPQ(2), and the use of the words 'the production of any such documents'; (b) the exception from the immunity from criminal proceedings contained in s 106ZPQ(2)(a) of proceedings for an offence against s 106ZPP; (c) the difference in wording for the analogue abrogation and immunity in s 106E(3) and s 106E(4) of the Health Insurance Act; (d) the impact of differences in timing of notices to produce issued under the Health Insurance Act and by an investigator under the National Law on whether the documents are able to be admitted in evidence; and (e) other examples in other pieces of Commonwealth legislation. Conclusion as to the appropriate construction 246 Again, the answer to questions 2 and 3 is one of statutory construction. -- 67 of 120 -- [2026] WASC 181 SEAWARD J Page 68 247 In all the circumstances, I accept the Commonwealth's construction of s 106ZPQ(2), and the nature of the documents that fall within the scope of the immunity. 248 When construing the text of s 106ZPQ(2), it is necessary to have regard to the entirety of s 106ZPQ. That is, s 106ZPQ(2) must be read with s 106ZPQ(1). 249 Section 106ZPQ(1) is only concerned with a particular subset of documents that fall within the scope of a notice to produce documents issued under s 89B(2) or s 105A(2), being those documents that the recipient of the notice is required to be produce, but which might tend to incriminate the person. Section 106ZPQ(1) provides that the recipient of the notice is not entitled to refuse to produce those documents on the grounds that the production of the documents might tend to incriminate him or her. 250 Section 106ZPQ(1) is not the source of the power to require the production of documents, that source is s 89B(2) and s 105A(2) (which also detail the requirements for such notices). Further, s 106ZPQ(1) does not, by its terms, deal with what occurs once the documents are produced by the recipient of the notice. Again, these matters are dealt with in s 89B and s 105A. Further, other sections of the Health Insurance Act deal with what occurs if a person fails to produce documents pursuant to a notice to produce (see s 106ZPM, s 106ZPN120 and s 106ZPNA121). 251 When the scope of s 106ZPQ(1) is properly understood, the reference in the text of s 106ZPQ(2) to 'any such documents' must be a reference to those documents falling within the scope of the preceding subsection, s 106ZPQ(1), as opposed to a reference to all documents produced by a recipient pursuant to a notice to produce. 252 Dr Will also places emphasis on the words 'the production' in s 106ZPQ(2) and submits that these words are of an entirely different meaning to the words the 'document produced' as used in s 106E(4), with the former referring to an 'action' and the latter to an 'object'. 120 Section 106ZPN was amended on 6 December 2022 by the Health Legislation Amendment (Medicare Compliance and Other Measures) Act 2022 (Cth), s 3 and sch 1, item 41 to include penalties for bodies corporate. 121 Section 106ZPNA was inserted on 6 December 2022 by the Health Legislation Amendment (Medicare Compliance and Other Measures) Act 2022 (Cth), s 3 and sch 1, item 41. -- 68 of 120 -- [2026] WASC 181 SEAWARD J Page 69 253 Dr Will submits that the use of the 'action', as opposed to the 'object', means that s 106ZPQ(2) should be understood as providing an immunity in relation to the action of producing any documents pursuant to a notice to produce, and not the documents so produced. 254 I do not accept Dr Will's submission in this regard. 255 First, the full set of words in question is 'the production of any such documents'. The use of the words of the 'production' does not alter the effect of the words 'any such documents'. That is, even if the text is a reference to the 'action', it is still a reference to the action of producing documents falling within the scope of s 106ZPQ(1), as opposed to a reference to the action of producing any and all documents pursuant to a notice to produce. 256 Secondly, I consider the meaning of the term production is sufficiently broad to include both the action ('producing') and the object ('any such documents'). 257 This is because the word 'production' must take its meaning from the context in which it is used. As mentioned above, s 106ZPQ(2) must be read together with s 106ZPQ(1). Section 106ZPQ(1) refers to both the act of producing and the specific documents produced. Section 106ZPQ(1) prevents a person, when undertaking the action of producing documents, from refusing to produce certain documents. 258 This construction is consistent with the dictionary meaning of 'production' which includes 'that which is produced; a product',122 and 'a thing produced as a result of an action, process, or effort; a product'.123 259 Accordingly, when s 106ZPQ(2) is read with s 106ZPQ(1), the reference to 'the production of any such documents' is intended to be, and is sufficiently broad to encompass, both the fact of the production and the 'any such documents' so produced. 260 I consider that this construction is consistent with the purpose of s 106ZPQ as a whole, which is to (a) abrogate the privilege against self-incrimination (s 106ZPQ(1)) and (b) provide compensation to the recipient for the loss of that common law right (s 106ZPQ(2)). 261 I also consider that the Commonwealth's construction is supported by the extrinsic material referred to earlier in these reasons, and in 122 Macquarie Dictionary. 123 Oxford English Dictionary. -- 69 of 120 -- [2026] WASC 181 SEAWARD J Page 70 particular the references in the explanatory memorandum and the Twentieth Report of the Senate Standing Committee which outlines the manner in which the abrogation and the immunity are intended to operate. 262 The construction advanced by Dr Will does not pay sufficient regard to the text of s 106ZPQ(1), and instead has the effect of construing s 106ZPQ(2) as if s 106ZPQ(1) did not exist, and as if s 106ZPQ(2) was responding to the power to require the production of documents in s 89B, s 89B(2) and s 105A(2) alone. 263 If the construction of the text advanced by Dr Will is adopted, it would result in the compensation element of s 106ZPQ being broader than the abrogation of the immunity. I agree with the Commonwealth that this would be an anomalous construction. 264 Finally, in considering questions 2 and 3, I have had regard to the principle of construction in Hartmann v Commissioner of Police124 outlined earlier in these reasons. Whilst accepting that a more liberal interpretation of a protective provision should be adopted, that construction cannot be more than the text can bear. I am satisfied that the above construction is consistent with the text, context and purpose of both s 106ZPQ(1) and s 106ZPQ(2). Other matters raised by Dr Will 265 Dr Will raised a number of other matters in support of his construction. I am not satisfied that any of these matters alter the above construction of s 106ZPQ(2) or the answer to questions 2 and 3. The offence against s 106ZPP 266 Dr Will submits that his construction is supported by the exception from the immunity from criminal proceedings in s 106ZPQ(2)(a) for an offence against s 106ZPP. 267 Section 106ZPP is an offence creating provision concerning false or misleading documents, and provides as follows: A person commits an offence if: (a) the person produces a document for inspection pursuant to a notice given under subsection 89B(2) or 105A(2); and 124 Hartmann v Commissioner of Police (1997) 91 A Crim R 141, 147. -- 70 of 120 -- [2026] WASC 181 SEAWARD J Page 71 (b) the document is false or misleading in a material particular; and (c) the person knows that the document is false or misleading in that particular; and (d) the person intentionally refuses or fails to identify, to the person to whom the document is produced, the respects in which the document is false or misleading. Penalty: Imprisonment for 12 months. 268 Dr Will submits that an offence against s 106ZPP occurs after the production of the documents, when the person producing the documents intentionally refuses or fails to identify the respect in which the document is false or misleading. Dr Will submits that, as such, the production of a false or misleading document per se cannot tend to incriminate the person. Rather, it is the person's subsequent actions that might tend to incriminate him or her. 269 In these circumstances, Dr Will submits that the exclusion in s 106ZPQ(2)(a) would be otiose if the words 'any such documents' are construed to mean documents that might, as of the time of production, tend to incriminate the person producing them. Further, Dr Will submits that construing the words to mean any documents that might tend to incriminate the person producing them at any time, including at some time in the future contingent upon further events, would result in absurdity. 270 I do not accept the premise of Dr Will's submission, being his construction of s 106ZPP. In particular, I do not accept that an offence against this section will necessarily take place after the production of the documents. 271 The elements required for an offence to be committed under s 106ZPP are: (a) a person produces a document pursuant to a notice to produce; (b) the document is false or misleading in a material particular; (c) the person knows that the document is false or misleading in a material particular; and (d) the person intentionally refuses or fails to identify to the person to whom the document is produced, the respects in which the document is false or misleading. -- 71 of 120 -- [2026] WASC 181 SEAWARD J Page 72 272 There is no reason why this means that the offence occurs after the production of the documents. Rather, the offence could also take place at the time of production. That is, at the time of production the recipient of the notice produces a document which they know is false or misleading in a material particular, and intentionally refuses or fails to identify to the person to whom the document is produced, the respects in which the document is false or misleading. In this scenario, the elements of the offence would be complete at the time of production. 273 It may be that a person at the time of production of the documents is not aware that a document is false or misleading in a material particular. In that circumstance, no offence would be committed at the time of production. 274 In his oral submissions, counsel for Dr Will gave, by way of example, the situation where the person producing the documents is later asked a question, and submitted that the offence does not occur until that (later) answer is given.125 275 Two things flow from this example. First, there is a separate offence in the Health Insurance Act for a person who gives false or misleading answers to a question asked by a Committee member at a Committee hearing. Therefore, it is not immediately clear to me that providing an answer after the event will necessarily result in an offence against s 106ZPP. Secondly, if a person becomes aware after they have produced the documents that a document is false or misleading in a material particular, and at that point intentionally refuses or fails to identify to the person to whom the document is produced the respects in which the document is false or misleading, then it may be that an offence has been committed at that later time. However, this is a particular fact scenario, and does not mean that an offence against s 106ZPP can only ever be committed after the production of the documents. 276 However, more significantly, I do not accept Dr Will's submission that the inclusion of the exception in s 106ZPQ(2)(a) would be rendered otiose if the Commonwealth's construction is preferred. 277 This exclusion is required to ensure that, for example, the actual document produced by the person, which is false or misleading in a material particular, can be tendered in evidence against the person in a prosecution for an offence against s 106ZPP, even if the document was 125 ts 31. -- 72 of 120 -- [2026] WASC 181 SEAWARD J Page 73 only obtained pursuant to a notice to produce. That is, the exception ensures that the person is not able to rely on the immunity to prevent that document being tendered and used as evidence against them in the trial. Section 106E(3) and s 106E(4) of the Health Insurance Act 278 Dr Will also refers to and relies on the difference in wording between s 106ZPQ, and the analogue immunity provisions in s 106E(3) and s 106E(4) of the Health Insurance Act. 279 As outlined earlier in these reasons, s 106E is concerned with persons appearing as a witness at a Committee hearing, other than the person under review. The relevant subsections provide: (3) A person is not excused from answering a question or producing a document under subsection (1) on the ground that the answer, or production of the document, may incriminate the person. (4) An answer given or document produced under subsection (1), and any information or thing (including any document) obtained as a direct or indirect result of answering the question or producing the document, is not admissible in evidence against the person in any criminal proceedings. 280 The wording of the abrogation and the immunity in these sections is different to that in s 106ZPQ. 281 As a matter of construction, these differences may be a contextual factor which indicates that the abrogation and immunity in s 106ZPQ should be interpreted differently. However, in all the circumstances I am not satisfied that this is the case. 282 There are a number of differences between the scope of the abrogation and immunity provided for in s 106E in comparison to s 106ZPQ. However, for the reasons I have previously explained, I do not consider these differences are sufficiently significant for the purposes of the construction of s 106ZPQ. In each case it is necessary to read the relevant subsections together. When this is done, I am not satisfied that the use of the words 'document produced' in s 106E(4) is intended to mean something different to the words 'production of any such documents' in s 106ZPQ in the context of the respective immunities being conferred. 283 Dr Will relies on the offence in s 106ZPP and submits that this offence explains the difference in language. However, for the reasons -- 73 of 120 -- [2026] WASC 181 SEAWARD J Page 74 outlined above, I do not accept Dr Will's submissions in relation to s 106ZPP. 284 Finally, the significance of the different language in s 106E is not supported by the extrinsic material. The Twentieth Report of the Senate Standing Committee make it clear that s 106ZPQ was not intended to operate differently than the abrogation and immunity provided for in s 106E(3) and s 106E(4). Matters of timing 285 Dr Will submits that the construction he advances avoids the 'absurd' result that the mere timing of the giving of a notice to produce under s 89B(2) or s 105A(2) of the Health Insurance Act, relative to, for example, a notice to produce the same documents issued by an investigator under cl 1(a) of sch 5 to the National Law, dictates whether the documents produced are subsequently admissible in civil proceedings. 286 I do not accept the above submission. Section 106ZPQ is concerned with documents produced under the Health Insurance Act. If a person receives a notice to produce documents under different legislation, and produces those documents, in circumstances where there has been no direct or derivative use of documents or information under s 106ZPQ, then there can be no absurd result. Section 106ZPQ will only impact on the actions taken under the different legislation if direct or derivative use of documents or information produced under the Health Insurance Act has occurred. Other Commonwealth legislation 287 Dr Will also refers to other examples of Commonwealth legislation containing a direct use immunity in relation to evidence of the production of a document. It is not necessary to refer to the specific examples, as I do not consider they are of much assistance. At all times it remains necessary to construe the text of the particular piece of legislation, in its context and in light of its purpose. Other pieces of legislation with a different context and purpose therefore offer only limited assistance. Conclusion to questions 2 and 3 288 For the reasons outlined above, I am therefore of the view that, properly construed, the immunity contained in s 106ZPQ(2)(b) of the Health Insurance Act only applies to prevent material being admitted in -- 74 of 120 -- [2026] WASC 181 SEAWARD J Page 75 evidence against a person in civil proceedings to the extent that the material is either: (a) a document that a person was required to produce under s 89B(2) or s 105A(2), which the person would have been entitled to refuse to produce on the ground that the production might tend to incriminate them; or (b) any information or thing (including any document) obtained as a direct or indirect result of the production of the incriminating material. 289 On the basis of the material before this court, it is not possible to identify whether any of the individual documents, or categories of documents, fall to be excluded on this basis. Rather, this will be a matter for the Tribunal to determine, applying the above legal test. Question 4 290 Question 4 concerns the meaning of the phrase 'might tend to incriminate' in s 106ZPQ(1). 291 There is no dispute between the parties that the words at least extend to documents that might tend to prove the person has committed a criminal offence. 292 The question is whether the Health Insurance Act contains a privilege preventing a person from being required to produce documents pursuant to a notice to produce under s 89B(2) or s 105A(2) which might tend to expose the person to a civil penalty (also known as the penalty privilege). The civil penalty in this case, being the civil penalties that the Tribunal may impose under s 196 of the National Law. If the penalty privilege does apply, a further question arises as to whether s 106ZPQ(1) abrogates not only the privilege against self-incrimination, but also the penalty privilege. Overview of parties' position 293 The parties accept that, unlike the privilege against self-incrimination, the penalty privilege is not a substantive rule of law that applies in a non-curial setting unless it is found not to apply or to be abrogated. Rather, there must be some basis in the language of the -- 75 of 120 -- [2026] WASC 181 SEAWARD J Page 76 statute for the penalty privilege to apply to a non-curial setting.126 The parties accept that the decision of the Full Court of the Federal Court in Migration Agents Registration Authority v Frugtniet (Frugtniet)127 is authority for this proposition. 294 Accordingly, the answer to the question is one of statutory construction directed first to the question of whether the penalty privilege applies at all, and if it does apply, whether it has been abrogated by s 106ZPQ(1) of the Health Insurance Act. 295 Dr Will's primary submission is that question 4 does not arise, based on Dr Will's submission as to the answer to question 2. In the alternative, Dr Will submits that the penalty privilege does apply to the power to compel the production of documents under s 89B(2) and s 105A(2) of the Health Insurance Act, and that the words are properly construed to mean 'might tend to incriminate the person or expose the person to a civil penalty'. Dr Will relies on the following matters in support of his submission: (a) the broader context of the Health Insurance Act, and in particular the wording of s 129AAF which expressly applies (and abrogates) the penalty privilege in relation to a notice under s 129AAD; (b) the various curial features of the process before a Committee, which suggest that the penalty privilege is intended to apply to it; and (c) the nature of the proceedings before a Director or a Committee being civil penalty proceedings, and the evident purpose of an immunity in that context must be to provide an immunity from the abrogation of the penalty privilege. 296 The Commonwealth submits that the penalty privilege does not apply so as to entitle a person to resist producing documents to the Director (under s 89B(2)) or a Committee (under s 105A(2)) of the Health Insurance Act. 297 The Commonwealth submits that there is no foundation in the Health Insurance Act for the penalty privilege to apply to entitle a person to resist producing documents to the Director or a Committee. 126 Submissions of Dr Will [23]; Submissions of the Commonwealth [43]; Submissions of the Board [42], [45]. 127 Migration Agents Registration Authority v Frugtniet [2018] FCAFC 5; (2018) 259 FCR 219 (Frugtniet). -- 76 of 120 -- [2026] WASC 181 SEAWARD J Page 77 The Commonwealth relies on the following matters in support of its submission: (a) the fact that Parliament has, elsewhere in the Health Insurance Act, drawn a distinction between the privilege against self-incrimination and the penalty privilege. In this regard, the Commonwealth refers to s 129AAF and submits that if the penalty privilege was intended to apply in relation to matters before the Director or a Committee (and to be abrogated by s 106ZPQ(1)) in parallel with the privilege against self-incrimination, Parliament would have said so; and (b) the similarities between the information gathering powers in Frugtniet and the Health Insurance Act, in that both are designed to ensure that the decision-maker has as much information as possible regarding the issues that were to be decided. 298 The Board's primary submission is that the answer to question 4 is 'not applicable' as the Board submits that the reference to 'civil proceedings' in s 106ZPQ(2)(b) does not include proceedings in the Tribunal. 299 In the alternative, the Board joins with the submissions of the Commonwealth. The Board also submits that if 'civil proceedings' in s 106ZPQ(2)(b) includes proceedings before the Tribunal, construing the words 'might tend to incriminate' as extending to documents that might prove Dr Will behaved in a manner that constitutes professional misconduct and/or enables the Tribunal to make one or more of the available penalty orders, would produce an 'incoherent result' in that the effect would be to deprive the Tribunal of any evidence upon which to rely in seeking orders under s 196 of the National Law. Frugtniet 300 It is first convenient to consider the nature of the penalty privilege and the decision of Frugtniet. 301 In Frugtniet, the appellant (the Migration Agents Registration Authority) cancelled the registration of the respondent as a migration agent. The agent sought review in the former Administrative Appeals Tribunal, which affirmed the decision to cancel the registration. In the course of doing so, the Deputy President rejected a claim by the agent that the penalty privilege applied in relation to particular procedural -- 77 of 120 -- [2026] WASC 181 SEAWARD J Page 78 orders. The agent appealed to the Federal Court, and a single judge concluded that the penalty privilege did apply. 302 The Full Court allowed the appeal, concluding that the penalty privilege did not apply to the statutory provisions in question (or even if it did, it was not triggered by the procedural orders in question). 303 In their reasons, the Full Court considered in detail the nature of the penalty privilege and the extent to which it applies in non-curial proceedings such as those before the AAT. In so doing, the Full Court considered in detail a series of High Court decisions relevant to the question of the privilege, being Pyneboard Pty Ltd v Trade Practices Commission;128 Sorby v Commonwealth;129 Police Service Board v Morris;130 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission;131 and Rich v Australian Securities and Investments Commission.132 304 Following a comprehensive consideration, the Full Court reached the following conclusions: (a) the privilege against self-incrimination and penalty privilege are both rules of the common law;133 (b) the privilege against self-incrimination (like legal professional privilege) is not merely a substantive rule of law, but rather is an important common law immunity that is not to be construed as having been abrogated in the absence of clear words or a necessary implication to that effect;134 (c) the privilege against self-incrimination applies in settings in which it properly arises, unless excluded in accordance with the principle of legality;135 (d) in contrast, penalty privilege is not a substantive rule of law,136 and ordinarily applies only in a curial setting to protect a party from having to assist in the process of seeking to have a penalty 128 Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328. 129 Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281. 130 Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397. 131 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543. 132 Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129. 133 Frugtniet [39]. 134 Frugtniet [39]. 135 Frugtniet [51]. 136 Frugtniet [39], [42]. -- 78 of 120 -- [2026] WASC 181 SEAWARD J Page 79 imposed upon them. However, it may be found to have a broader application as a matter of statutory construction, including by reference to curial features of an otherwise non-curial setting;137 (e) the relevant approach when considering the availability of penalty privilege is not one of determining whether there has been a statutory abrogation of a privilege that is otherwise accepted as applicable. Rather, the question is whether the privilege is engaged in the first place;138 (f) if the penalty privilege is to apply in a non-curial setting, it must be found to do so from the language of the provisions in question. Such a finding must be found in the face of the view of a majority of the High Court in Daniels139 doubting that penalty privilege ordinarily applies in a non-curial setting at all;140 and (g) the task of implying that the penalty privilege does apply in a non-curial setting may not face as high as the hurdle, derived from the rule in Potter v Minahan,141 of concluding that privilege against self-incrimination does not apply. But there must be some basis to be found in the language of the statute for penalty privilege to apply to a non-curial proceeding or setting.142 305 The above conclusions were helpfully summarised by the Full Court as follows:143 Following Sorby, the starting point for the privilege against self-incrimination is that it exists and applies unless abrogated. However, that is not the starting point for penalty privilege, which is not, following Daniels and Rich, a substantive rule of law, let alone an important and fundamental common law immunity, having, as it does, a very different origin and history. In each setting where penalty privilege is claimed, the opening question is whether that privilege applies in the first place, not whether it has been abrogated. This emphasises the critical importance of considering carefully the statutory 137 Frugtniet [51]. 138 Frugtniet [42]. 139 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543. 140 Frugtniet [52] - [53]. 141 Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277. 142 Frugtniet [54]. 143 Frugtniet [77]. -- 79 of 120 -- [2026] WASC 181 SEAWARD J Page 80 provisions in question, as well as the particular proceedings, the relief sought and the particular adverse consequences faced by the person claiming the benefit of penalty privilege. 306 The Full Court observed that the primary judge did not carry out any statutory construction exercise to derive positively the application of the penalty privilege to the statutory provisions in question.144 When this was done, the Full Court concluded that the penalty privilege did not apply:145 In the present case, there is nothing in either the relevant provisions of the Migration Act or of the AAT Act that suggests, let alone compels, the conclusion that penalty privilege applied to Mr Frugtniet's proceedings before the AAT. It is not to the point that, as submitted on behalf of Mr Frugtniet, ss 61(2) and 62(4) of the AAT Act expressly preserve the availability of the privilege against self-incrimination to a person summonsed and to any witness. That submission elides the differences in application between the privilege against self-incrimination and penalty privilege, as articulated in Daniels and Rich. Similarly, it cannot be accepted, as was further submitted, that one would expect to find a section like s 105 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) if the legislature had intended to abrogate penalty privilege. Adhering to the position expressed in Daniels and Rich, there must have been a statutory basis for penalty privilege to apply to the AAT proceedings; there simply can be no question of its abrogation where it is not applicable. It follows that in the absence of a statutory basis, penalty privilege did not apply to those proceedings. Disposition 307 The answer to question 4 is therefore one of statutory construction. In all the circumstances, I am not satisfied, as a matter of construction, that the penalty privilege applies to the requirement to produce documents pursuant to a notice to produce issued under either s 89B(2) or s 105A(2) of the Health Insurance Act. The following factors, taken together, are relevant to my conclusion in this regard. Non-curial nature 308 First, the processes of both the Director and a Committee are non-curial in nature. 309 I observe that there is no suggestion by any party that the processes of the Director are curial. 144 Frugtniet [72]. 145 Frugtniet [82]. -- 80 of 120 -- [2026] WASC 181 SEAWARD J Page 81 310 In relation to the processes before a Committee, Dr Will made reference to many of the features of a Committee being similar to those in a curial setting, including the holding of hearings at which evidence may be given under oath or affirmation; the ability of a Committee to issue notices to a person to attend and give evidence or produce documents; that Committee members have the same protection and immunity as a Justice of the High Court; that persons appearing at a hearing on behalf of another have the same protection and immunity as a barrister has when appearing in the High Court; and persons who are the subject of a review have a right to attend a hearing, call witnesses, question witnesses, address the Committee on questions of law and make a final address to the Committee. 311 However, I consider there are sufficient other features consistent with a non-curial process, including that the process is inquisitorial in nature, as opposed to adversarial; that the Committee is comprised of practitioners who are to be expected to bring their professional experience to considering whether there has been inappropriate practice in the provision of services; that the Committee is not limited in its inquiry as to inappropriate practice to the concerns referred to it, and can investigate any other matter it wishes; the Committee can not only hold hearings, but can also hold meetings; and that the outcome of the Committee's review is not of itself final or binding on the person reviewed, but rather is referred to the Determining Authority who receives further submissions before making the final decision. Text 312 Secondly, there is nothing in the text of s 89B, s 105A or s 106ZPQ(1) which expressly states or in any way implies that the penalty privilege applies. As outlined in Frugtniet,146 it is not sufficient that s 106ZPQ(1) expressly preserves the availability of the privilege against self-incrimination and says nothing about penalty privilege. Unless the penalty privilege applies, there is no need for s 106ZPQ(1) to mention the penalty privilege. Context - s 129AAD and s 129AAF147 313 Thirdly, I accept the Commonwealth's submission that a key contextual indicator against the application of the penalty privilege is 146 Frugtniet [82]. 147 Some of the sections of the Health Insurance Act referred to in this section of the reasons have been amended since 29 February 2017. The versions referred to are those current as at the date the Tribunal referred the matter to the Board, being 9 February 2023. -- 81 of 120 -- [2026] WASC 181 SEAWARD J Page 82 the express reference to the penalty privilege in s 129AAF(1) of the Health Insurance Act (in relation to the requirement produce a document under s 129AAD), combined with the absence of any such reference in s 89B, s 105A or s 106ZPQ. 314 Section 129AAD of the Health Insurance Act is contained in pt VII, headed 'Miscellaneous'. Section 129AAD(2) provides that: If the CEO believes on reasonable grounds that: (a) a person: (i) who rendered a professional service in respect of which an amount has been paid that is the subject of the CEO's concern; or (ii) on whose behalf such a professional service was rendered; or (b) subject to subsection (7), another person; has possession, custody or control of one or more documents relevant to ascertaining whether the amount paid in respect of the professional service should have been paid, the CEO may, by written notice given to the person, require the person to do any or all of the things mentioned in subsection (5). 315 Section 129AAD(5), provides that the CEO may require the person, in relation to each professional service specified in the notice to (a) produce any document, or extract of any document, that is relevant for the purpose set out in subsection 2; or (b) to make a copy of any such document or extract and to produce that copy. 316 Section 129AAF is headed 'Self-incrimination etc' and provides: (1) A person is not excused from producing a document, extract or copy when required to do so under section 129AAD on the ground that doing so would tend to incriminate the person or expose the person to a penalty. (2) However, the production of the document, extract or copy, and any information obtained as a direct or indirect result of the production of the document, extract or copy, are not admissible in evidence against the person in: (a) any criminal proceedings, other than: -- 82 of 120 -- [2026] WASC 181 SEAWARD J Page 83 (i) proceedings for an offence against this Act dealing with false or misleading information or documents; and (ii) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (which deals with false or misleading information or documents) that relates to this Act; or (b) any civil proceedings, other than a civil proceeding arising under Part VIA or this Part. (emphasis added) 317 The Health Insurance Act goes on to specify the various steps or actions that can follow after a notice has been issued under s 129AAD. By way of example: (a) if the Chief Executive Medicare decides after the documents are produced that the information 'properly substantiates' that the amount paid should have been paid, then a written notice to that effect must be given to the person the subject of the s 129AAD notice;148 and (b) if an amount is recoverable under various subsections in s 129AC of the Health Insurance Act as a debt due to the Commonwealth (which include circumstances where a notice under s 129AAD is not complied with and where the information does not properly substantiate the amount paid), then the Chief Executive Medicare must give written notice to the person of (a) the decision to claim the amount as a debt, (b) the reasons for the decision, and (c) the right of the person to seek review of that decision under s 129AAJ(1).149 318 The Health Insurance Act also creates a number of civil penalty provisions associated with s 129AAD. 319 Section 129AAE creates a civil penalty provision for a person referred to in s 129AAD(2)(b) (being 'another person') who is given a notice under s 129AAD requiring the person to do something in respect of a professional service, and the person fails to comply with that requirement within the specified period. 148 Health Insurance Act, s 129AAH. 149 Health Insurance Act, s 129AAI. -- 83 of 120 -- [2026] WASC 181 SEAWARD J Page 84 320 Section 129AEA creates a series of administrative penalties that can apply to the person who provided the services in circumstances where amounts are recoverable under s 129AC of the Health Insurance Act as a debt to the Commonwealth. 321 The explanatory memorandum for the Health Insurance Amendment (Compliance) Bill 2010 (Cth) says the following about s 129AAF: New section 129AAF deals with self-incrimination. Subsection 129AAF(1) provides that, if a notice to produce documents is provided to a person, that person is not excused from producing the documents on the basis that the production of the documents may tend to incriminate the person or expose them to a penalty. The abrogation of the common law privilege against self-incrimination is necessary to ensure that the compliance measures contained in this Bill are able to operate effectively. A large amount of public money is expended under Medicare (over $14.5 billion in 2009-10). Auditing activity is undertaken by Medicare Australia to ensure that this money is spent appropriately. Many practitioners voluntarily comply with Medicare Australia requests for information. However around 20% of practitioners do not cooperate and Medicare Australia does not presently have the power to require the production of relevant information. This legislation will address that deficiency. The provisions of this Bill will, when enacted, enable the Medicare Australia CEO to require the production of documents to verify whether an amount of Medicare benefit paid for a professional service should have been paid. Practitioners may be liable for financial penalties where the amount cannot be substantiated. The new 'notice to produce documents' provision would not be workable if practitioners were able to resist notices by claiming privilege against self-incrimination. Medicare Australia's auditing ability would be severely compromised; the gap which this legislation aims to fill would remain. A standard use and derivative use immunity provision will protect practitioners against other possible consequences of responding to notices to produce documents. Subsection 129AAF(2) provides that the production of documents, and information obtained as a direct or indirect result of the production of documents in response to a notice under section 129AAD, cannot be used as evidence against the person in any criminal proceedings, other than for offences concerning false or misleading information or documents under the Act or the Criminal Code, or in any civil proceedings other than those arising under Part VIA of the Act (which deals with civil penalties). 322 Dr Will submits that the reference to 'expose the person to a penalty' in s 129AAF(1) is a reference to the penalty privilege and -- 84 of 120 -- [2026] WASC 181 SEAWARD J Page 85 reveals that it is applicable in relation to the requirement to produce documents upon receipt of a notice under s 129AAD. That is not disputed by the Commonwealth or the Board. 323 However, the parties differ as to the significance of this express reference to the penalty privilege in s 129AAF(1) in comparison to the lack of any such express reference in s 106ZPQ(1). 324 The Commonwealth submits that this is a contextual indicator that if the Parliament intended the penalty privilege to apply to a particular exercise of non-curial power (in this case the power of the Chief Executive to compel the production of documents) then it will be expressly stated. Accordingly, the lack of any such express reference in s 106ZPQ(1) is an indication that the penalty privilege was not intended to apply to the exercise of the powers under s 89B(2) and s 105A(2). I accept that this is a strong contextual factor in support of the Commonwealth's construction. 325 Dr Will, on the other hand, submits that the following four matters favour construing the words 'might tend to incriminate' in s 106ZPQ(1) to mean 'might tend to incriminate the person or expose the person to a civil penalty': (a) notices to produce under s 89B(2) and s 105A(2) are analogous to notices issued under s 129AAD(2). Notices under s 129AAD(2) can lead to the person being liable for an administrative penalty and notices to produce under s 89B(2) and s 105A(2) can lead to a referral from the Director to the Chief Executive Medicare and/or the person being disqualified from providing services; (b) just as the notices to produce under s 89B(2) and s 105A(2) are analogous, the corresponding privilege immunities in s 129AAF and s 106ZPQ(2) are analogous. In this regard, Dr Will submits: Section 129AAF discloses the Parliament's intention to balance the public interest of achieving the object of the Professional Services Review Scheme with the public interest in providing a person under review, who is required to produce documents for the purposes of the scheme, with the protection of other possible consequences of responding to notices to produce. There is nothing in the context of the Health Insurance Act to disclose a contrary or absent Parliamentary intention with respect to the operation of s106ZPQ(2). -- 85 of 120 -- [2026] WASC 181 SEAWARD J Page 86 (c) the words 'any civil proceeding other than proceedings before a Committee or the Determining Authority' in s 106ZPQ(2) are words of broad import and it would be otiose if the Parliament had intended the word 'incriminate' in s106ZPQ(1) to not include civil penalties; and (d) Dr Will submits that it would be absurd for Parliament to confer the direct use and derivative use exclusions in s 129AAF(2) in response to the express abrogation of penalty privilege in s 129AAF(1) and yet intend, by using materially identical language in s 106ZPQ(2), to confine the availability of the direct use and derivative use exclusions there to only documents produced by abrogation of privilege against self-incrimination. 326 I will consider item (c) later in these reasons. However, in relation to items (a), (b) and (d), I do not accept Dr Will's submissions. Each of these submissions proceed on the basis that because the penalty privilege is expressly stated to exist in relation to one non-curial exercise of power, it must have been the Parliament's intention that it apply in relation to other exercises of non-curial power, even if not expressly stated. 327 I do not consider this is a consequence which logically flows. 328 An abrogation of the privilege against self-incrimination and an associated compensatory immunity is referred to three times in the Health Insurance Act: (a) s 106E(3) and s 106E(4), which refers only to the privilege against self-incrimination, and the immunity extends only to use in evidence in criminal proceedings; (b) s 106ZPQ, which refers only to the privilege against self-incrimination, and the immunity extends to use in evidence in criminal proceedings and civil proceedings; and (c) s 129AAF, which refers both to the privilege against self-incrimination and the penalty privilege, and the immunity extends to use in evidence in criminal proceedings and civil proceedings. 329 The fact that three different approaches have been used tends against Dr Will's construction. It is open to Parliament to determine whether the penalty privilege applies to all or any exercises of -- 86 of 120 -- [2026] WASC 181 SEAWARD J Page 87 non-curial power. This is a policy decision for Parliament. The mere fact that the penalty privilege applies to one exercise of power does not necessarily mean that it will apply to another, or that this was intended by Parliament. 330 Section 129AAF does not appear in pt VAA of the Health Insurance Act, but rather is in pt VII. It was also not enacted as part of the 1999 Amendment Bill, but was inserted in 2011 in the Health Insurance Amendment (Compliance) Act 2011 (Cth). 331 At that time, faced with the particular language used in s 106ZPQ which did not include a reference to the penalty privilege, the Parliament chose, when inserting s 129AAF, to use different language and to make reference to the penalty privilege. 332 This tends against the submission that the inclusion of the reference to the penalty privilege in s 129AAF is a contextual indicator that the penalty privilege was intended to apply to the powers in s 89B(2) and s 105A(2). 333 Further, I observe there is no reference in the explanatory memorandum for the Health Insurance Amendment (Compliance) Bill 2010 (Cth) to the penalty privilege. There is also no discussion of whether the approach adopted in s 129AAF is intended to be a different approach to that used in s 106ZPQ, or not. 334 In those circumstances, I do not consider it logically flows that because Parliament expressly provided that the penalty privilege applies to the exercise of the power in s 129AAD, that Parliament also intended the penalty privilege to apply to s 89B(2) or s 105A(2). 335 I also do not consider it can be said to be 'absurd' for Parliament to confer the direct use and derivative use exclusions in s 129AAF(2) in response to the express abrogation of penalty privilege in s 129AAF(1) and yet intend, by using materially identical language in s 106ZPQ(2), to confine the availability of the direct use and derivative use exclusions there to only documents produced by abrogation of privilege against self-incrimination. 336 The wording in s 106ZPQ(2) alone is not what is material to determining whether the penalty privilege applies. Rather, regard must also be had to the wording of s 106ZPQ(1) which does not include a reference to the penalty privilege, unlike the wording in s 129AAF(1) which does. The wording in s 106ZPQ(2) provides an immunity from -- 87 of 120 -- [2026] WASC 181 SEAWARD J Page 88 the use in evidence of documents falling within the scope of the privilege abrogated in s 106ZPQ(1)), just as the wording in s 129AAF(2) provides an immunity from the use in evidence of documents falling within the scope of the privileges abrogated in s 129AAF(1). Extrinsic materials 337 Thirdly, a construction of s 89B, s 105A and s 106ZPQ(1) in which the penalty privilege does not apply is confirmed by the extrinsic materials. In particular, the references in the explanatory memorandum and the Twentieth Report of the Senate Standing Committee, dated 8 December 1999 to the abrogation of the privilege reveal that s 106ZPQ was not intended to operate differently than the abrogation and immunity provided for in s 106E and the former s 105A of the Health Insurance Act. Unlike s 129AAF, neither of these provisions makes express reference to the penalty privilege and nor do the extrinsic materials. Purpose 338 Fourthly, I do not accept Dr Will's submission that if the penalty privilege does not apply, then it would render the reference in s 106ZPQ(2)(b) to any 'any civil proceeding other than proceedings before a Committee or the Determining Authority', otiose. 339 In this regard, Dr Will submits that the mere presence of s 106ZPQ(2)(b) begs the question of what is the purpose of providing a direct and derivative use immunity in relation to civil proceedings, unless it is by way of compensation for the abrogation of the penalty privilege.150 340 However, this submission proceeds on the premise that if the scope of the immunity includes use in civil proceedings, then the purpose of the immunity must be to provide compensation for the abrogation of penalty privilege. I do not accept the premise that this is the only, or even the actual, purpose. 341 The submission overlooks what s 106ZPQ(2)(b) applies to, which is documents and information produced pursuant to a relevant notice to produce which might tend to prove the person has committed a criminal offence. 150 Respondent's submissions in reply, [45]. -- 88 of 120 -- [2026] WASC 181 SEAWARD J Page 89 342 When this is understood, an answer to the question posed by Dr Will is that the purpose of providing a direct and derivative use immunity in civil proceedings is to ensure that documents produced which might tend to prove the person has committed a criminal offence cannot be used in evidence against the person not only in any criminal proceedings, but also in any civil proceedings (other than proceedings before a Committee or the Determining Authority). Without the reference to civil proceedings, documents that might tend to prove the person has committed a criminal offence could still be used in evidence against the person in any civil proceedings. 343 The reference in s 106ZPQ(2)(b) to 'any civil proceedings other than proceedings before a Committee or the Determining Authority' is therefore not rendered otiose by clarifying that the scope of the immunity extends to any civil proceedings in addition to any criminal proceedings, or that civil proceedings do not extend to proceedings before a Committee or the Determining Authority. 344 Dr Will also submits that:151 The express differentiation in s 129AAF(1) between 'tend to incriminate' and '[tend to] expose the person to a penalty' when conferring the compensatory protection of s 102AAF(2)(b) therefore favours a purposive construction of 'tend to incriminate' in s 106ZPQ to expand its literal field of operation and correct and a simple omission which, if uncorrected, would defeat the object of s 106ZPQ(2)(b). 345 I do not accept this submission. 346 There is nothing in the text of s 129AAF, or the extrinsic material, to support the above submission. Further, Dr Will has not identified any textual basis for the submission that there is a 'simple omission' in s 106ZPQ(2)(b) which requires correction, or that the failure to do so would defeat the object of s 106ZPQ(2)(b). As outlined above, the object and purpose of s 106ZPQ(2)(b) is not rendered otiose or defeated if the penalty privilege does not apply to the powers in s 89B(2) and s 105A(2). Conclusion regarding question 4 347 For the reasons outlined above, I am therefore of the view that, properly construed, the penalty privilege does not apply to the exercise 151 Respondent's submissions in reply, [45]. -- 89 of 120 -- [2026] WASC 181 SEAWARD J Page 90 of the powers in s 89B(2) and s 105A(2) of the Health Insurance Act. Accordingly, the answer to question 4 is, no. Question 5 348 Question 5 is not concerned with s 106ZPQ, but rather with the scope of the offence provision in s 106ZR. 349 By its terms, question 5 asks whether s 106ZR(1) of the Health Insurance Act applies so as to make it unlawful for the Board and/or Dr Will to disclose to the Tribunal (including a legally qualified member, a non-judicial member or an ordinary member of the Tribunal) and/or for the Tribunal to admit into evidence in the Tribunal any of the listed categories of documents. 350 I do not understand the parties to be asking whether either the Board or Dr Will would commit an offence if any of the categories of documents are disclosed to the Tribunal or admitted into evidence in the Tribunal. It would not be appropriate for me to express a view on such an issue in the context of the present referral. 351 Further, although question 5 uses the term 'unlawful', I also do not consider it is appropriate for me, in the context of the present referral, to answer question 5 in those terms, given this question proceeds on the basis of the agreed statement of facts alone. 352 Rather, I understand the parties to be asking in question 5 whether s 106ZR(1), when read in context with the remainder of the Health Insurance Act, operates in such a manner so as to prevent the Board or Dr Will from disclosing the categories of documents to the Tribunal, and seeking to tender the documents into evidence in the s 193 proceedings before the Tribunal under the National Law. 353 In answering question 5, I have proceeded only to consider the application of s 106ZR, and have not had regard to s 106ZPQ. Overview of parties' positions 354 Dr Will submits that s 106ZR(1) must be read in conjunction with s 130 of the Health Insurance Act, which imposes confidentiality obligations on persons who perform duties or exercise powers or functions under the Health Insurance Act. Dr Will submits that the confidentiality obligations in s 130 are subject to various express qualifications, which inform the construction of s 106ZR. -- 90 of 120 -- [2026] WASC 181 SEAWARD J Page 91 355 When this is done, Dr Will submits that s 106ZR does not prevent the Documents Produced (category (a)) or the Overlap Documents (category (h)) from being produced to the Tribunal or tendered in evidence. Dr Will submits that it would be absurd for s 106ZR to prohibit a medical practitioner from disclosing (for example) his or her business records to a practice manager, or from disclosing a patient's clinical records or health information to another medical practitioner for the purposes of continuity of the patient's medical care simply because that information, or evidence about those documents, had been given to a Committee in the course of its deliberations. Dr Will submits that this would also apply to disclosing such documents to the Tribunal. 356 However, Dr Will submits that s 106ZR, when read with s 130(4A)(c)(ii), does capture the remaining categories of documents, being the Statement of Concerns (category (b)); the Oral Evidence (category (c)); the Transcript Extract (category (d)); the Final Report (category (e)); the Final Determination (category (f)) and the Expert Reports (category (g)), save to the extent any of the documents contain information that 'was contained in a claim for a Medicare benefit'. 357 Dr Will submits that s 106ZR therefore prohibits the disclosure of the Statement of Concerns, the Oral Evidence, the Transcript Extract, the Final Report and the Final Determination to (relevantly): (a) AHPRA and any of AHPRA's officers other than for the purposes of referring the Statement of Concerns and the Material to the Board further to s 148 of the National Law; (b) an investigator appointed further to s 163(1) of the National Law; (c) an expert engaged by the Medical Board and/or AHPRA for the purposes of an investigation into Dr Will's professional performance; (d) a member of a performance and professional standards panel established further to s 182 of the National Law; and (e) by extension to the Tribunal and/or for the Tribunal to admit that information, or the Expert Reports, into evidence. 358 The Commonwealth does not express a view on the answer to question 5, but instead makes submissions on the legal principles relevant to the consideration of the question. -- 91 of 120 -- [2026] WASC 181 SEAWARD J Page 92 359 The Commonwealth submits that two questions of construction arise in relation to s 106ZR(1), being: (a) does the phrase 'another person' include the Tribunal; and (b) what disclosures are 'required or permitted under the Health Insurance Act'. 360 In relation to question (a) above, the Commonwealth submits that as a matter of construction, the Health Insurance Act is unclear as to whether the Tribunal constitutes 'another person' for the purposes of s 106ZR. 361 In relation to question (b), the Commonwealth observes that the Health Insurance Act contemplates disclosure of Committee deliberations in several provisions of the Health Insurance Act, including s 106L(1); s 106L(3); s 106T(1); s 106UA; s 106ZPR; s 89A; s 106N; s 106XA and s 106XB. Each of these examples are discussed further below. 362 The Commonwealth submits that initial disclosures made under these provisions containing 'any of the deliberations or findings of a Committee' or 'any information or evidence given to the Committee in the course of its deliberations' would be disclosures 'required or permitted under the Health Insurance Act'. 363 However, what is unclear under the Health Insurance Act is whether any further disclosure by the recipients of the disclosures required or permitted under the Health Insurance Act are authorised or prohibited. In this regard, the Commonwealth contrasts the lack of any reference to further disclosures with the position adopted under s 130 of the Health Insurance Act. The Commonwealth also refers to the presumption of statutory construction that offence provisions are construed strictly and to ensure certainty. 364 The Board submits that the answer to question 5, for all categories or documents, is 'no'. 365 The Board submits that s 130(4A)(c)(ii) of the Health Insurance Act, does not prohibit information contained in a claim for a Medicare benefit from being used by a prescribed professional regulatory body for the purpose of any investigation or inquiry being conducted in the performance of its functions or the exercise of its powers. The Board therefore submits that s 106ZR(1) does not prohibit information falling -- 92 of 120 -- [2026] WASC 181 SEAWARD J Page 93 within s 130(4A)(c)(ii) from being disclosed to, or adduced into evidence before, the Tribunal. 366 Turning to the remaining information, the Board submits that the Tribunal is not 'another person' for the purposes of s 106ZR. In addition to the submissions made by the Commonwealth, the Board submits that there is no need for the Tribunal to be caught by s 106ZR, as the Tribunal has the power, under s 61(2) of the SAT Act to order that a hearing or part of it be held in private. Therefore, the Tribunal is able to ensure that the privacy of practitioners and patients can be protected. 367 Finally, in terms of whether disclosure of the categories of information in question are 'required or permitted under the Health Insurance Act', the Board submits that this question only arises if the Tribunal is 'another person' for the purposes of s 106ZR. If so, the Board's primary submission is that documents which disclose Committee deliberations can be disclosed to the Tribunal and tendered in evidence because of its submission in relation to question 1 that 'civil proceedings' in s 106ZPQ(2)(b) do not include the Tribunal Proceedings. Accordingly, disclosure of the documents is permitted for the purposes of s 106ZR(1). 368 In the alternative, the Board submits that the documents can be disclosed to the Tribunal and tendered in evidence if the documents are provided to the Board pursuant to a referral under s 106XB of the Health Insurance Act. 369 In this regard, the Board relies on two propositions. First, that disclosure of the documents to the Board is a statutory obligation imposed upon the Director, if the statutory preconditions are met. Secondly, that once the Board has obtained that information, in order for it to properly perform its functions as the national regulator in dealing with professional misconduct identified by the Director, a Committee, or the Determining Authority, the Board must be able to disclose that information to its officers, solicitors, and counsel, and ultimately to the Tribunal, including by tendering it as evidence in the Tribunal Proceedings. The Board refers to the requirement under s 193 of the National Law that the Board must refer a matter of professional misconduct to the Tribunal. 370 The Board submits that it cannot have been Parliament's intention that s 106ZR stultify the functions of the Board and render the referral -- 93 of 120 -- [2026] WASC 181 SEAWARD J Page 94 obligations under s 106XB effectively redundant as soon as the Director complies with the duty under that section to provide a statement of concerns and the materials on which it is based to the Board. Penal provision 371 Before considering the proper construction of s 106ZR, it is relevant to observe that s 106ZR is a penal provision. In Beckwith v The Queen,152 Gibbs J made these observations in relation to the proper approach to the construction of penal provisions in a statute: The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams ((1935) 53 CLR 563, at pp 567 - 568); Craies on Statute Law, 7th ed (1971), pp 529 - 534. The rule is perhaps one of last resort. 372 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),153 the plurality concluded that the existence of a penal provision is part of the context. See also Aubrey v The Queen.154 373 Accordingly, whilst it is necessary to have regard to the fact that s 106ZR is a penal provision, the task of construction of the provision remains to be undertaken by applying the usual rules of statutory construction. 374 However, when applying the ordinary rules of statutory construction, there can be circumstances where the penal nature of a provision points against a broad interpretation. For example, in Krakouer v The Queen155 McHugh J cautioned against construing a penal provision so as to extend the scope of criminal liability, especially if the intention of the legislature was not clear: A court should not disregard clear words and interpret a legislative provision so as to extend the scope of criminal liability even if it thinks that, by inadvertence, the legislature has failed to deal with a matter. That is so even if the court thinks that the legislature would probably 152 Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569, 576. 153 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [57]. 154 Aubrey v The Queen [2017] HCA 18; (2017) 260 CLR 305 [39]. 155 Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 [62] - [63]. -- 94 of 120 -- [2026] WASC 181 SEAWARD J Page 95 have dealt with the matter if it had been drawn to the legislature's attention. Jordan CJ put the relevant principle succinctly in delivering the judgment of the Full Court of the New South Wales Supreme Court in Ex parte Fitzgerald; Re Gordon: 'If conduct of a particular kind stands outside the language of a penal section, the fact that a Court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits.' Still less should a court ignore the clear words of a provision so as to give it a meaning that would or might make it easier to convict an accused if the intention of the legislature is at best a matter of contestable opinion, as it is in this case. (citations omitted) 'Person' or 'another person' 375 It is first convenient to consider whether the Tribunal is 'another person' for the purposes of s 106ZR. Text 376 Given its centrality to question 5, it is convenient to set out s 106ZR in full again: (1) A person must not disclose to another person: (a) any of the deliberations or findings of a Committee; or (b) any information or evidence given to the Committee in the course of its deliberations; unless the disclosure is required or permitted under this Act or the Dental Benefits Act 2008 or is necessary in connection with the performance of the first‑mentioned person's functions or duties under this Act or the Dental Benefits Act 2008. Penalty: Imprisonment for 12 months. (3) This section does not prevent a person from making a disclosure: (a) to a lawyer for the purpose of obtaining legal advice or representation relating to a matter involving the deliberations or findings of the Committee; or -- 95 of 120 -- [2026] WASC 181 SEAWARD J Page 96 (b) if the person is a lawyer-for the purpose of complying with a legal duty of disclosure arising from his or her professional relationship with a client. (4) In this section: lawyer means a barrister or solicitor. 377 By its terms, s 106ZR is applicable to 'a person'. The term 'person' is not defined in s 106ZR or in pt VAA. Nor is it a defined term in s 3. However, s 2C(1) of the Acts Interpretation Act 1901 (Cth) provides that, subject to any contrary intention, reference to a 'person' includes 'a body politic or corporate as well as an individual'. 378 The term 'another person' is also not defined in s 106ZR or the Health Insurance Act, but there is no dispute that it must be intended to have a consistent meaning with the term 'person'. 379 Section 106ZR does not limit the application of the prohibition to any particular persons, such as officers or members of a Committee. Therefore, the reference to a 'person' in s 106ZR is sufficiently broad to include both Dr Will and also the Board.156 380 However, the text of s 106ZR is silent as to whether a body such as the Tribunal is a 'person' or 'another person'. 381 The Tribunal, unlike Dr Will and the Board, does not have a legal personality. Unlike the Board, the Tribunal is not established as a body corporate with perpetual succession who may sue and be sued in its own corporate name. Rather, the Tribunal is established under the SAT Act. Section 7 establishes 'a tribunal called the State Administrative Tribunal', and s 11(1) provides that when exercising its jurisdiction, the Tribunal is to be constituted by a person who is a Tribunal member, or persons who are Tribunal members, as specified by the President. The individual members of the Tribunal constitute 'persons'. Context 382 It is therefore necessary to have regard to s 106ZR in its broader context, which reveals a number of matters relevant to the construction of the term 'person' or 'another person' in s 106ZR. Other definitions of 'person' 383 There is a definition of 'person' in s 124W(1) of the Health Insurance Act. That definition includes 'a committee or other body of 156 Which is a body corporate, see National Law, s 31A. -- 96 of 120 -- [2026] WASC 181 SEAWARD J Page 97 persons, whether incorporated or unincorporated, and includes a member of such a committee or other body'. Further, the definition of court in s 124W(1) includes 'a tribunal, authority or person having power to require the production of documents or the answering of questions'. However, these definitions only apply for the purposes of pt VC of the Health Insurance Act, which is concerned with quality assurance confidentiality. 384 The express inclusion in pt VC of a different definition of person to that contained in the Acts Interpretation Act 1901 (Cth), and a definition of a court that includes a body such as the Tribunal, is suggestive that the definitions of 'person' and 'another person' in s 106ZR do not include a court or a body such as the Tribunal. Section 130 - confidentiality provision 385 What is also apparent when the broader context of the Health Insurance Act is considered, is that s 106ZR does not purport to be a general confidentiality or secrecy provision. Rather, s 130 of the Health Insurance Act contains such a provision and makes extensive provision for the use and disclosure of information obtained in the course of the Health Insurance Act. There is no dispute that it is therefore necessary to have regard to the interaction between s 130 and s 106ZR. 386 As outlined earlier in these reasons, s 130(1) imposes an obligation of confidence on officers in the exercise of their duties under the Health Insurance Act (or other specified legislation) from divulging or communicating to any person, 'any information with respect to the affairs of another person acquired by him or her in the performance of his or her duties, or in the exercise of his or her powers or functions' under the Health Insurance Act. 387 The term 'officer' is defined in s 130(25) as 'a person performing duties, or exercising powers or functions, under or in relation to this Act or a medicare program'. 388 Section 130 goes on to specify a number of exceptions to this overarching obligation. Section 130 is a lengthy and complicated provision. It has a number of implications for the construction of s 106ZR. 389 In relation to the question of whether the Tribunal is 'another person', s 130(2) provides that a person who is, or has been, an officer -- 97 of 120 -- [2026] WASC 181 SEAWARD J Page 98 shall not, except for the purposes of the Health Insurance Act, be required to produce in court any document, or divulge or communicate to a court any matter or thing that comes under his or her notice in the performance of any such duties or functions. 390 The express reference to 'court' in this context is suggestive of a court not being a person for the purposes of s 106ZR, and that if it is intended to restrict the extent to which documents can be provided to or tendered in a court, it is necessary to expressly state such a restriction. 391 Such a construction is also consistent with the decision of Mortimer J (as her Honour then was) in Sevdalis v Director of Professional Services Review157 where, in the context of a judicial review of a decision of a Committee and a Determining Authority, her Honour held that the word 'person' in s 106ZR did not include a court,158 and therefore there would be no contravention of s 106ZR for the parties (including the Director, a Committee and the Determining Authority) to rely on documents otherwise falling within the scope of s 106ZR(1) including the draft and final reports of the Committee, a transcript of the hearing before the Committee and a statement of concerns of the Committee in the application for judicial review. 392 In reaching this conclusion, Mortimer J relied on the decision of Kizon v Palmer,159 in which the Full Court of the Federal Court considered the following subsections of s 63 in the Telecommunications (Interception) Act 1979 (Cth): (1) Subject to this Part, a person shall not, after the commencement of this Part: (a) communicate to another person, make use of, or make a record of; or (b) give in evidence in a proceeding; lawfully obtained information or information obtained by intercepting a communication in contravention of subsection 7(1). (2) Subject to this Part, a person must not, after the commencement of this subsection: 157 Sevdalis v Director of Professional Services Review [2016] FCA 32; (2016) 241 FCR 266. 158 Sevdalis v Director of Professional Services Review [2016] FCA 32; (2016) 241 FCR 266 [9]. 159 Kizon v Palmer (1997) 72 FCR 409, 430 - 431. -- 98 of 120 -- [2026] WASC 181 SEAWARD J Page 99 (a) communicate designated warrant information to another person; or (b) make use of designated warrant information; or (c) make a record of designated warrant information; or (d) give designated warrant information in evidence in a proceeding. 393 The relevant provisions contained some similarities to s 130 and s 106ZR of the Health Insurance Act. The relevant non-disclosure provisions in s 63(1)(a) and s 63(2)(a) of the Telecommunications (Interception) Act 1979 (Cth) prohibited the communication of specified information to 'another person'. 394 In the context of considering whether a court constituted 'another person' for the purpose of s 63, the Full Court in Kizon v Palmer held that none of the High Court, the Federal Court or the New South Wales Supreme Court were established as a body corporate, and therefore did not constitute a 'person'. Further, the terms of s 63 displayed an intention that the word 'person' was not intended to refer to a court, as if it did include a court then the express prohibitions in s 63(1)(b) and s 63(2)(d) against a person being required to give the same information as falling within s 63(1)(a) and s 63(2)(a) in evidence in a proceeding, would have been unnecessary. The Full Court also referred to authority, in the context of other legislation, to courts not ordinarily being described as a person.160 395 I have not been referred to any authority which considers whether a body such as the Tribunal is 'another person' either generally or for the purposes of s 106ZR of the Health Insurance Act. 396 Applying the reasoning in Sevdalis v Director of Professional Services Review and Kizon v Palmer to s 106ZR and s 130 of the Health Insurance Act suggests that the Tribunal is not a 'person' or 'another person' for the purposes of s 106ZR of the Health Insurance Act. 397 The Tribunal is similar to a court, in that it is not a body politic, a body corporate or an individual. When exercising its jurisdiction, the Tribunal is comprised of the individual members hearing the matter. The individual members do not have authority to hear the matters 160 Kizon v Palmer (1997) 72 FCR 409, 430 - 431. See also the cases referred to in Osborne v The Queen [2014] NSWCCA 17; (2014) 283 FLR 97. -- 99 of 120 -- [2026] WASC 181 SEAWARD J Page 100 outside of their appointment as Tribunal members and outside of being the member specified to hear the matter by the President. 398 I do not consider the lack of any reference to the Tribunal in a similar context to the reference to a court in s 130(2) results in the Tribunal being 'another person'. The lack of any reference to a body such as the Tribunal in s 130(2) may simply reflect that Parliament has determined that a person cannot be compelled to provide documents or give evidence to a court. 399 An alternative construction is that the lack of any express reference to a body such as the Tribunal in s 130(2), suggests that the Tribunal is intended to be treated differently to a court, and is intended to fall within the scope of 'another person' for the purposes of s 106ZR. However, such a construction ignores the definition of 'person' in the Acts Interpretation Act 1901 (Cth). 400 Finally, as part of the application of the ordinary principles of statutory construction, I consider the fact that s 106ZR is a penal provision is a further contextual reason why it is not appropriate to extend the meaning of the term 'person' or 'another person' beyond the plain text of s 106ZR, as informed by the definition contained in the Acts Interpretation Act 1901 (Cth). 401 In these circumstances, I consider the context of the Health Insurance Act is consistent with the Tribunal not being 'another person' for the purposes of s 106ZR. Legislative history and purpose 402 I have also had regard to the legislative history and purpose of s 106ZR. 403 Section 106ZR was inserted into the Health Insurance Act in 1994 in the Health Legislation (Professional Service Review) Amendment Act 1994 (Cth). The associated explanatory memorandum does not contain any information which assists in the question of construction. The 1999 Amendment Bill and the 1999 Report also do not contain any information regarding the interaction between s 106ZR and the referral powers in s 106XA and s 106XB of the Health Insurance Act. 404 Section 106ZR has been the subject of judicial consideration in the Federal Court. -- 100 of 120 -- [2026] WASC 181 SEAWARD J Page 101 405 In Karmakar v Minister for Health (No 2)161 Logan J dismissed a challenge to s 106ZR on the basis it infringed the implied freedom of political communication. In so doing, Logan J made the following observations regarding the purpose of s 106ZR: 96 The evident purpose of s 106ZR of the HIA is the preservation, subject to the exceptions specified in the section itself and as otherwise permitted by that Act, of the deliberations and findings of a committee and information or evidence given to a committee in the course of its deliberations. … 97 Within that regime, one end served by the confidentiality purpose of s 106ZR is, in my view, to preserve, at the committee stage, the professional reputation of the practitioner concerned. For reasons already given, when s 106ZR is read in the context of pt VAA and s 103 in particular, it does not inhibit that practitioner's ability to make a case before a committee that there should be no finding of 'inappropriate practice'. Another end served by the confidentiality purpose of s 106ZR is the privacy of the patients to whom the services have been rendered by the practitioner under review. In this regard, s 106ZR complements the requirement in s 98(2) that a committee hearing be in private and a more general secrecy provision, s 130, applicable to persons performing functions or exercising powers under the HIA. 406 Logan J observed that s 106ZR was not only applicable to medical practitioners, but to any person who discloses information subject to the restriction.162 407 However, his Honour also concluded that s 106ZR must be construed in the context of pt VAA of the Health Insurance Act.163 In this context, pt VAA contains a limited number of circumstances in which disclosures of information that may fall within the scope of s 106ZR could be made to specified persons or agencies.164 His Honour identified s 106XA and s 106XB as two examples in this regard. 408 However, Logan J observed that it is generally only if a case proceeds to the Determining Authority and a determination is made, that the identity of the practitioner, the related findings and the determination are publicly revealed in the form of a publication of these 161 Karmakar v Minister for Health (No 2) [2021] FCA 916 (Karmakar). 162 Karmakar [92]. 163 Karmakar [88]. 164 Karmakar [98]. -- 101 of 120 -- [2026] WASC 181 SEAWARD J Page 102 details by the Director, pursuant to s 106ZPR of the Health Insurance Act.165 Logan J concluded:166 Thus, the pt VAA regime itself contemplates that the general public, and thus the medical profession, will, inter alia, gain via this means an understanding of conduct which has been found to be 'inappropriate practice'. 409 In Sevdalis v Director of Professional Services Review,167 Mortimer J considered whether to make a non-publication order under s 37AF of the Federal Court of Australia Act 1976 (Cth) in a case involving a judicial review of a decision of a Committee and Determining Authority. The documents in question included the draft and final reports of the relevant Committee, a transcript of the hearing before the Committee, and a statement of concerns of the Committee. 410 The respondent in that case submitted that the non-publication order was necessary to ensure there was no contravention of the prohibition in s 106ZR and to ensure that the underlying purpose of s 106ZR was not frustrated by the conduct of the judicial review proceedings. 411 As outlined above, Mortimer J concluded that there would be no contravention of s 106ZR for the parties to rely on the relevant documents in the judicial review application, as the word 'person' in s 106ZR did not include a court.168 412 However, her Honour concluded that any further disclosure, inspection or dissemination of the documents would be contrary to the underlying purpose of s 106ZR and would frustrate that purpose, and a non-publication order was appropriate.169 413 In this context, Mortimer J accepted that the purpose of s 106ZR was to:170 protect the privacy and confidentiality of patients whose records, clinical attendances and other details may be revealed and discussed during the investigation and decision-making process undertaken by a Professional Services Review Committee and the Determining 165 Karmakar [99]. 166 Karmakar [99]. 167 Sevdalis v Director of Professional Services Review [2016] FCA 32; (2016) 241 FCR 266 (Sevdalis). 168 Sevdalis v Director of Professional Services Review [2016] FCA 32; (2016) 241 FCR 266 [9] citing Kizon v Palmer (1997) 72 FCR 409, 430 - 431. 169 Sevdalis [13]. 170 Sevdalis [8]. -- 102 of 120 -- [2026] WASC 181 SEAWARD J Page 103 Authority under Part VAA of the Health Insurance Act. It seems to me that the provision is also designed to ensure that personal matters relating to the practitioner under investigation are not the subject of dissemination or publication, although the Director of Professional Services Review may cause the findings of a Committee and the directions given by the Determining Authority to be published: s 106ZPR(1). In many Part VAA investigations and decisions, not only may there be great detail about the clinical treatment of individual patients, but the personal circumstances of the medical practitioner concerned are likely also to be the subject of evidence, discussion and findings. That was indeed the case in the report and decision concerning Dr Sevdalis. While the Health Insurance Act reveals a legislative intention that the public interest in knowing of contraventions of the Act by medical practitioners be served by the publication to which I have referred, a provision such as s 106ZR indicates that the details which gave rise to the contraventions are not intended to be available for public review. 414 I respectfully agree with the conclusions of Logan J and Mortimer J that the purpose of s 106ZR is to ensure the confidentiality of the deliberations and findings of a Committee, subject to the various exceptions contained in the Health Insurance Act. That confidentiality not only ensures that a Committee is able to perform its functions, but also protects the privacy of the person under review and others involved in the provision of the services under review. 415 A construction of s 106ZR whereby the Tribunal is not 'another person' is not inconsistent with and does not frustrate the purpose of s 106ZR as outlined above. 416 The text of s 106ZR limits its application to persons. The fact that the Parliament chose not to extend its operation to entities that were not persons, including entities such as a court and a body such as the Tribunal, is a policy choice for the Parliament. 417 Further, as submitted by the Board, the Tribunal possesses a similar power to make confidentiality orders or non-publication orders as the Federal Court. In this regard, to Board refers to the decision of Mortimer J in Sevdalis to impose a non-publication order. The Board submits that the Tribunal possesses a similar power under s 62(4) of the SAT Act and that accordingly there is no need for the Tribunal to be caught by the definition of 'another person' as it is able to impose a non-publication order to ensure the confidentiality and privacy of the Committee deliberations and the personal information of the person under review. -- 103 of 120 -- [2026] WASC 181 SEAWARD J Page 104 418 Whilst I accept that there can be no guarantee that a non-publication order will be imposed by the Tribunal in any one case, the existence of the ability of the Tribunal to impose such an order is a further distinction between entities such as a court and the Tribunal, and other individuals, and is a reason why the above construction would not frustrate the purpose of s 106ZR. Disclosure and further disclosure 419 Although I have concluded that the Tribunal is not 'another person' for the purposes of s 106ZR, the submissions of the parties also addressed in some detail the question of whether, assuming the Tribunal is 'another person', s 106ZR prevents the Board from further disclosing any of the documents falling within s 106ZR provided as part of the referral under s 106XB. 420 In light of the submissions of the parties, and in the event that I am incorrect in relation to my conclusion regarding whether the Tribunal is 'another person' for the purposes of s 106ZR, I have gone on to consider the question of whether s 106ZR prevents the Board from further disclosing any of the documents falling within s 106ZR provided as part of the referral under s 106XB to 'another person'. Text 421 By its terms, s 106ZR(1) applies to prevent the disclosure of any of the deliberations or findings of a Committee, or any information or evidence given to the Committee in the course of its deliberations. That would, on its face, capture several of the categories of documents the subject of question 5 in full (including at least the Oral Evidence (category (c)); the Transcript Extract (category (d)); and the Final Report (category (e)), and potentially all or part of some of the remaining categories. 422 However, by its terms, s 106ZR goes on to exempt certain disclosures from the operation of s 106ZR(1), being: (a) a disclosure required or permitted under the Health Insurance Act or the Dental Benefits Act 2008; or (b) a disclosure that is necessary in connection with the performance of the person's functions or duties under the Health Insurance Act or the Dental Benefits Act 2008; or -- 104 of 120 -- [2026] WASC 181 SEAWARD J Page 105 (c) a disclosure to a lawyer for the purpose of obtaining legal advice or representation relating to a matter involving the deliberations or findings of a Committee; or (d) if the person is a lawyer, for the purpose of complying with a legal duty of disclosure arising from his or her professional relationship with a client. 423 There is no dispute that the effect of the exemptions referred to in (a) and/or (b) above is that a referral by the Director to a body such as the Board under s 106XA or s 106XB, including the provision of documents pursuant to that referral, does not contravene the prohibition contained in s 106ZR(1). 424 The question which arises is whether any further disclosure of the documents and information by the Board is captured by s 106ZR(1). The text of s 106ZR is silent on the question of further disclosure. Context 425 It is therefore necessary to have regard to s 106ZR in its broader context, which reveals a number of matters relevant to the construction of s 106ZR. Documents excluded from the scope of s 106ZR 426 Section 130 also provides further context as to a category of documents which, whilst on their face fall within the scope of s 106ZR, when that section is considered in context, do not. 427 Section 130(4A)(c), provides that s 130 does not prohibit information that: (a) has been provided to a prescribed professional disciplinary body or a prescribed professional regulatory body; and (b) was contained in a claim for a medicare benefit, (c) from being used by the body for the purpose of any investigation or inquiry being conducted by the body in the performance of its functions or the exercise of its powers. 428 As outlined earlier in these reasons, the Board is a prescribed body for the purposes of s 130(4A). -- 105 of 120 -- [2026] WASC 181 SEAWARD J Page 106 429 Both Dr Will and the Board submit that the effect of s 130(4A)(c), when read with s 106ZR, is that s 106ZR cannot have been intended to include information provided to a prescribed body such as the Board, if that information was contained in a claim for a medicare benefit. 430 I accept this submission. The information contained in a medicare benefit claim exists independently of any investigation by a Committee under the Health Insurance Act, and is information which a prescribed body such as the Board might ordinarily be expected to obtain as part of undertaking its functions under the National Law. The evident purpose of s 130(4A)(c) is to recognise this, and permit the prescribed body such as the Board to continue to use that information for the purposes of any investigation or inquiry being conducted by that body in the exercise of its powers independently of the Health Insurance Act, notwithstanding that a Committee is also conducting an investigation. 431 Such a construction does not frustrate the purpose of s 106ZR. Further disclosure 432 Section 130 also provides further context in relation to the question of further disclosure of documents or information by a recipient of an authorised disclosure under the Health Insurance Act. 433 Section 130 is a lengthy and complicated section, but it contains a number of exceptions to the obligation of confidence contained in s 130(1) and s 130(2). 434 The various subsections, in general, either expressly or by necessary implication, not only address the initial disclosure, but also further disclosure. 435 I observe that s 130 uses the language of 'divulge', as opposed to 'disclose'. However, I do not consider there is any meaningful difference between the two terms for present purposes. 436 Some examples of subsections which expressly deal with further use or disclosure include the following. 437 First, s 130(3) permits the Secretary or the Chief Executive Medicare to divulge information to a person if the Minister certifies that it is necessary in the public interest to divulge that information. 438 Further, s 130(3A) permits the Secretary or the Chief Executive Medicare to divulge information to a prescribed authority or person if -- 106 of 120 -- [2026] WASC 181 SEAWARD J Page 107 the information is information of a kind that may, in accordance with the regulations, be provided to the prescribed authority or person. As outlined earlier in these reasons, the Board is a prescribed authority or person for the purposes of s 130(3A). Regulation 93 of the Health Insurance Regulations 2018 (Cth) identifies the various categories of prescribed information for the purposes of s 130(3A). It is not necessary to set out all of this information, but it does not include information falling within the scope of s 106ZR. 439 Section 130(4) goes on to provide that a person to whom information is divulged under s 130(3) or s 130(3A) shall: in respect of that information, be subject to the same rights, privileges, obligations and liabilities under subsections (1) and (2) as if he or she were a person performing duties under this Act and had acquired the information in the performance of those duties. 440 That is, s 130(4) expressly addresses, and limits, the future use of information that is disclosed under s 130(3) and s 130(3A). 441 Secondly, as outlined above, s 130(4A)(c) deals with the further use and disclosure of information that has been provided to a prescribed professional disciplinary body or a prescribed professional regulatory body, and was contained in a claim for a medicare benefit, by permitting the body to use that information for investigations or inquiries in the performance of its functions or the exercise of its powers. 442 Thirdly, s 130(6) and s 130(7) are complicated subsections which each permit certain information to be provided to a variety of other bodies or persons, which include the Board. 443 Section 130(6)(e) provides that if a person has been convicted of certain specified offences, or certain pecuniary penalty orders have been made against the person, then the Secretary or the Chief Executive Medicare may divulge any information acquired by an officer in the performance of his or her duties, or in the exercise of his or her powers or functions, under the Health Insurance Act that concerns any of the convictions or pecuniary penalty orders to: a person or body who, under the National Law, is required or permitted to: (i) take disciplinary action with respect to practitioners, optometrists, midwives or nurse practitioners; or -- 107 of 120 -- [2026] WASC 181 SEAWARD J Page 108 (ii) investigate practitioners, optometrists, midwives or nurse practitioners in connection with the taking of such disciplinary action; or 444 Section 130(7)(g) applies when the Minister certifies that it is desirable for the administration of the National Law to the extent it provides for the registration of practitioners, optometrists, midwives or nurse practitioners, for information of a kind referred to in the certificate to be divulged. In those circumstances, the Secretary or the Chief Executive Medicare may divulge information of a kind referred to in the certificate to: a person or body who, under the National Law, is required or permitted to: (i) take disciplinary action with respect to practitioners, optometrists, midwives or nurse practitioners; or (ii) investigate practitioners, optometrists, midwives or nurse practitioners in connection with the taking of such disciplinary action; or 445 Section 130(9)(c) goes on to prohibit the person who receives the divulged information under subsections (6)(e) or (7)(g) from making a record of that information, and from divulging or communicating to any person (either directly or indirectly) the divulged information, except if this is in the performance of their duties, or the exercise of their powers or functions under the National Law. 446 Section 130(10) goes on to provide that a person to whom information is divulged under s 130(6) or s 130(7) shall not, except in the performance of duties or the exercise of powers or functions referred to in (relevantly) s 130(9)(c), be required: (a) to produce in court any document that has come into his or her possession or under his or her control under subsection (6) or (7); or (b) to divulge or communicate to a court any matter or thing that has come under his or her notice under subsection (6) or (7). 447 Therefore, although information can be disclosed to a body such as the Board under s 130(6) and s 130(7), the legislature goes on to clarify the extent to which that information can then be used or further disclosed by the Board and expressly provides that the information may be used for a purpose under the National Law. -- 108 of 120 -- [2026] WASC 181 SEAWARD J Page 109 448 Other subsections of s 130, address the further use and disclosure of information by implication. Some examples include the following. 449 First, s 130(5E) provides that s 130 does not prohibit the Chief Executive Medicare or a Departmental employee from providing to the Director, a Committee and the Determining Authority (or any person providing services to any of these entities) information to help each of the above in the performance of their function or duties, or the exercise of powers, under pt VAA of the Health Insurance Act. 450 Whilst not expressly addressing further use and disclosure, the fact that the information is provided to assist the Director, a Committee and the Determining Authority to perform their functions or duties, suggests that the information can be used and if necessary divulged by the Director, a Committee and/or the Determining Authority for that purpose. 451 Secondly, s 130(5G) and s 130(5H) provide that the section does not prohibit a person from providing information for inclusion in registers kept under, respectively, the Australian Immunisation Register Act 2015 (Cth) and the National Cancer Screening Register Act 2016 (Cth). Again, although there is no express reference to further use and disclosure, the reference to the purpose of inclusion in the relevant register in each of the subsections governs what further use or disclosure may be made. 452 Finally, s 130 contains a number of subsections which are offence creating provisions. These include s 130(15) which provides that where protected information is disclosed to a person in contravention of s 130, a person commits an offence if he or she knows or ought reasonably to know that the disclosure is in contravention of s 130 and: (a) he or she in any way solicited the disclosure of the information; or (b) he or she discloses the information to another person; or (c) he or she uses the information otherwise than by disclosing it to another person. 453 This subsection further reinforces the limitations on disclosure, and further disclosure, contained in the other subsections of s 130. -- 109 of 120 -- [2026] WASC 181 SEAWARD J Page 110 Other provisions that permit disclosure of Committee deliberations 454 A number of other provisions of the Health Insurance Act contemplate the disclosure of Committee deliberations. These include: (a) s 106L(1) and s 106L(3): which concern provision of the final Committee report to the person under review, the Director and the Determining Authority (b) s 106T(1): which concerns provision of the draft determination of the Determining Authority to the person under review and the Director; (c) s 106UA: which concerns provision of the final determination of the Determining Authority to the person under review and the Director; (d) s 106ZPR: which provides that the Director may publish the particulars of determinations; (e) s 89A and s 106N: which provide that where the Director or a Committee thinks material before them indicates that the person under review may have committed a relevant offence or a relevant civil contravention (each defined in s 124B), they may send the material together with a statement to the Chief Executive Medicare; (f) s 106XA and s 106XB: whereby the Director may disclose a statement of concerns and the material on which it is based to relevant State and Territory bodies, if either the Director, a Committee or the Determining Authority forms the opinion that the person under review has caused, is causing, or is likely to cause, a significant threat to the life or health of any other person, or the practitioner has failed to comply with professional standards. 455 None of these provisions themselves go on to expressly state what can be done by the recipient of the disclosure with the information disclosed. 456 However, in the case of items (a) - (c) above, other provisions in the Health Insurance Act go on to detail what steps are to be taken by the recipient once they have received the disclosure in question, thereby addressing the issue of further disclosure. -- 110 of 120 -- [2026] WASC 181 SEAWARD J Page 111 457 In relation to item (d) above, the publication of the relevant particulars is publication to the world at large and therefore no issue of further disclosure arises. 458 In relation to item (e) above, the Chief Executive Medicare is able to take such investigations and actions as detailed in the Health Insurance Act and the Health Services (Medicare) Act 1973 (Cth). 459 In relation to item (f) above, the question of further use or disclosure is not addressed in either s 106XA or s 106XB or in the broader context of the Health Insurance Act. This is not necessarily surprising, as the other relevant bodies to whom the referral is made operate under different legislation, including State and Territory legislation. However, it is significant that the terms of s 106XA and s 106XB do not make any reference to the disclosure being for the purposes of the relevant bodies carrying out their functions under their relevant legislation, or identifying any of the uses to which the information referred can be put, including by way of further disclosure. Further disclosure - conclusions 460 The level of detail in s 130, and in particular the references to the further use and disclosure that is (or is not) permitted, stands in contrast to s 106ZR which does not contain any reference to further disclosure at all. 461 The express references to further use and disclosure in s 130 may suggest that s 106ZR is not intended to capture further disclosure as if Parliament had intended to capture further disclosure, it would have included language to address this issue, as was done in s 130. 462 However, a significant difference between the two provisions is that the confidentiality obligation in s 130(1) applies only to a person who is an 'officer', whereas s 106ZR applies far more broadly, being to a 'person'. 463 This difference explains the level of detail in s 130 regarding further use and disclosure, as if Parliament intended there to be limits on further use and disclosure by persons other than officers, then s 130 would need to specify these. On the other hand, 'person' in s 106ZR applies more broadly, and by its terms captures disclosure by both the original person and any recipient of the information. It is therefore not necessary for Parliament to specify the position in relation to 'further' disclosure for the purposes of s 106ZR. -- 111 of 120 -- [2026] WASC 181 SEAWARD J Page 112 464 The level of detail in s 130 regarding further use or disclosure must also be contrasted with the lack of such detail in s 106XA and s 106XB which simply provides that the statement of concerns and the material upon which it is based must be provided by the Director to the relevant body. Not only do s 106XA and s 106XB not contain any express reference to the extent of further use or disclosure of the referred material, but no such reference is revealed from their terms unlike, for example, s 130(7) when read with s 130(9) of the Health Insurance Act. 465 Dr Will submits that the existence of the exception from the confidentiality obligation contained in s 130(7) (when read with s 130(9)) is relevant in that it provides a mechanism whereby information otherwise falling within the scope of s 106ZR can be provided to a body such as the Board, and then used and disclosed by the Board in the performance of its duties or in the exercise of its powers or functions under the National Law. 466 I agree that s 130(7) (when read with s 130(9)) is a significant provision which assists in a harmonious reading of the various provisions. 467 Section 130(7) provides a legislative mechanism which permits information which has been referred to the Board under s 106XB, and which also falls within the scope of the prohibition in s 106ZR(1), to be further used or disclosed by the Board. However, absent Ministerial certification being provided, then pursuant to s 106ZR, information that has been provided to the Board, which also falls within the scope of s 106ZR, is subject to the limitations on disclosure contained in s 106ZR. 468 The existence of s 130(7) and s 130(9) therefore addresses the lack of any express or implied reference in either s 106ZR, s 106XA or s 106XB to the issue of further use or disclosure of information, and the provisions can be harmoniously reconciled as follows. 469 First, in accordance with s 130(1), the Director is not permitted to divulge information with respect to the affairs of another person acquired by him or her in the exercise of his or her powers or functions under the Health Insurance Act, except in the performance of his or her duties, or in the exercise of his or her powers or functions, under the Health Insurance Act. -- 112 of 120 -- [2026] WASC 181 SEAWARD J Page 113 470 Secondly, in accordance with s 106ZR, the Director is not permitted to disclose any of the deliberations or findings of a Committee, or any information or evidence given to the Committee in the course of its deliberations, unless the disclosure is required or permitted under the Health Insurance Act or is necessary in connection with the performance of the Director's functions under the Health Insurance Act, or falls within the other express exceptions in s 106ZR. 471 Thirdly, the provision by the Director of a statement of concerns and associated material to the Board under s 106XB would fall within the exceptions contained in s 130(1) and s 106ZR. 472 Fourthly, information provided to a body such as the Board under s 106XB, that also falls within the scope of s 106ZR, will be subject to the limitation or prohibition contained in s 106ZR(1). That is, the Board will not be able to disclose any of the deliberations or findings of a Committee, or any information or evidence given to the Committee in the course of its deliberations, save for that falling within the scope of s 130(4A)(c) (being information contained in a claim for a medicare benefit).171 473 Fifthly, to the extent that the Minister considers that it is desirable that the general limitation on the disclosure of Committee documents or deliberations under s 106ZR not apply to a body such as the Board, then it is open to the Minister, pursuant to s 130(7), to issue a certificate to permit such use or disclosure. If this occurs, then not only can the Secretary or the Chief Executive Medicare divulge that information to the Board, but in accordance with s 130(9), the Board is able to divulge or communicate that information to a third person in accordance with the terms of the certificate in the performance of the Board's duties, or in the exercise of the Board's powers or functions, under the National Law (which could, depending on the wording of the certificate, include disclosure to the Tribunal or third parties for the purposes of the Board's duties under the National Law). If this occurs, the limitation in s 130(10) (concerning the courts) applies to any information disclosed to the Board pursuant to s 130(7). 474 However, if the Minister does not consider this to be desirable, and the Minister does not issue such a certificate, then the Board is not able to disclose any of the deliberations or findings of a Committee, or any information or evidence given to the Committee in the course of its deliberations to any third party. 171 The limitations contained in s 106ZPQ, if applicable, will also apply. -- 113 of 120 -- [2026] WASC 181 SEAWARD J Page 114 475 In considering the context of s 106ZR, and in construing the relevant provisions in the manner outlined above, I have had regard to the fact that s 106ZR is a penal provision. I do not consider, however, that this alters the above construction. This construction has been arrived at by the ordinary application of the principles of statutory construction by considering the text of s 106ZR in the broader context of the Health Insurance Act. Purpose 476 I have also had regard to the purpose of s 106ZR which, as outlined above, is to ensure the confidentiality of the deliberations and findings of a Committee, subject to the various exceptions contained in the Health Insurance Act. 477 However, the confidentiality provided for in s 106ZR is not absolute. The Health Insurance Act provides for express exceptions. Those have been outlined earlier in these reasons. Further, that confidentiality is not intended to continue indefinitely, with provision being made for the public disclosure of the particulars contained in s 106ZPR following a final determination of a Determining Authority coming into effect under s 106TA of the Health Insurance Act. 478 The construction of s 106ZR, when read with s 130 and in particular s 130(7), that I have outlined above is also consistent with the purpose of s 106ZR. 479 Such a construction ensures that the confidentiality and privacy of both the deliberations of a Committee and the personal details of the person under review and those associated with the provision of the services under review, subject to the express exceptions contained in the Health Insurance Act. 480 The Board submits that such a construction would be contrary to the Health Insurance Act as it would frustrate the purpose of the referral powers in s 106XA and s 106XB, by preventing bodies such as the Board from being able to use the information received as part of the referral to undertake their statutory investigation and referral duties. 481 However, on the construction I have outlined above, s 130(7) enables the Minister to certify that the information falling within the scope of s 106ZR can be provided and used by a body such as the Board for the purposes of its inquiries and investigations. Further, at all times the Board will be able to use the information falling within the -- 114 of 120 -- [2026] WASC 181 SEAWARD J Page 115 scope of s 130(4A)(c), and any information received in a referral under s 106XB which falls outside the scope of s 106ZR. 482 It is also important to observe that the power to refer matters under s 106XA and s 106XB is given to the Director, and arises either when the Director, a Committee or the Determining Authority forms the view that a referral should be made. In the case of a referral by a Director (absent a Committee or Determining Authority forming the view that a referral should be made), it may not necessarily be the case that the referral will contain information falling within the scope of s 106ZR. The referral from the Director may occur at a time prior to the work of the Committee being undertaken. 483 It is also relevant to observe in this regard that, as outlined in relation to referred question of law 1, the construction advanced by Dr Will does not frustrate the ability of the Director to refer matters under s 106XA or s 106XB. That is preserved under s 106ZR and s 130. 484 Rather, the frustration of purpose relied on by the Board, is the frustration of the Board's purposes and functions under the National Law, and not the frustration of the purposes of the Health Insurance Act. As outlined in relation to referred question of law 1, the primary purpose of the review under pt VAA is the protection of the medicare benefits programme and not the facilitation of the purposes of the National Law. Whilst in some cases there may be a factual overlap between conduct that might constitute 'inappropriate practice' and for example, unsatisfactory professional performance or unprofessional conduct, the primary purpose of the review under pt VAA is the protection of the medicare benefits programme and not the facilitation of the purposes of the National Law. 485 Linked to this different purpose, is the limited probative value to the Board and the Tribunal of the deliberations of the Committee as these are directed to a different question than that being considered by the Board and the Tribunal. That is not to say that the information provided to a Committee may not be of assistance to the Board or the Tribunal in their deliberations, however at all times it will be directed to a different issue. Further, the statement of concerns will likely be of a limited probative value to the Tribunal, which must make its own determination on the referral by the Board. -- 115 of 120 -- [2026] WASC 181 SEAWARD J Page 116 486 Whilst the construction outlined above will mean that there must be careful management by the Board of any documents and information it receives as part of a referral under s 106XB, for the same reasons as outlined in relation to referred question of law 1, I do not consider that it makes an investigation by the Board impossible. In particular, in so far as s 106ZR is concerned, it does not contain a derivative use immunity. Conclusion to question 5 487 For the reasons outlined above, I am of the view that the Tribunal is not 'another person' for the purposes of s 106ZR of the Health Insurance Act, and therefore it will not be contrary to s 106ZR for the Board and/or Dr Will to disclose to the Tribunal any of the specified categories of documents on this basis alone. Whether those documents should be admitted by the Tribunal in evidence against Dr Will in the Tribunal Proceedings is a matter for the Tribunal to determine. 488 However, if the Tribunal is 'another person', then I am of the view that absent a certificate being issued by the Minister under s 130(7), it will be contrary to s 106ZR for the Board and/or Dr Will to disclose to the Tribunal any of the specified categories of documents save for any documents falling within the scope of s 130(4A)(c) of the Health Insurance Act. Conclusion 489 The answers to the referred questions of law are therefore as follows: Question 1: Is the Tribunal Proceeding a 'civil proceeding' for the purposes of s 106ZPQ(2)(b) of the Health Insurance Act? Answer 1: Yes Question 2: If the answer to question 1 is 'yes', does s 106ZPQ(2)(b) of the Health Insurance Act apply so as to make the entirety of: (a) the Documents Produced; (b) the Statement of Concerns; (c) the Transcript Extract; -- 116 of 120 -- [2026] WASC 181 SEAWARD J Page 117 (d) the Final Report; (e) the Final Determination; (f) the Expert Reports; and/or (g) the Overlap Documents; not admissible in evidence against Dr Will in the Tribunal Proceedings? Answer 2: No Question 3: If the answer to question 2 is no, does s 106ZPQ(2)(b) of the Health Insurance Act apply so as to make: (a) the Documents Produced; (b) the Statement of Concerns; (c) the Transcript Extract; (d) the Final Report; (e) the Final Determination; (f) the Expert Reports; and/or (g) the Overlap Documents; not admissible in evidence against Dr Will in the Tribunal Proceedings to the extent the Documents Produced, or alternatively the documents listed in question 3(a) to 3(g), might 'tend to incriminate' Dr Will for the purposes of s 106ZPQ(1) of the Health Insurance Act? Answer 3: The immunity contained in s 106ZPQ(2)(b) of the Health Insurance Act only applies to prevent material being admitted in evidence against Dr Will in the Tribunal Proceedings to the extent that the material is either: (a) a document that Dr Will was required to produce under s 89B(2) or s 105A(2), which Dr Will would have been entitled to refuse to produce on the -- 117 of 120 -- [2026] WASC 181 SEAWARD J Page 118 ground that the production might tend to incriminate Dr Will; or (b) any information or thing (including any document) obtained as a direct or indirect result of the production of the incriminating material. On the basis of the material before this court, it is not possible to identify whether any of the individual documents, or categories of documents, fall to be excluded on this basis. Rather, this will be a matter for the Tribunal to determine, applying the above legal test. Question 4: If the answer to question 3 is 'yes', to the extent that: (a) the Documents Produced; (b) the Statement of Concerns; (c) the Transcript Extract; (d) the Final Report; (e) the Final Determination; (f) the Expert Reports; and/or (g) the Overlap Documents might: (h) prove that Dr Will has behaved in a way that constitutes professional misconduct or, alternatively, unsatisfactory professional performance; and/or (i) prove that Dr Will has behaved in a way that constitutes unprofessional conduct; and (j) thereby enliven the Tribunal's discretion to make one or more of the Penalty Orders; might the document in question 'tend to incriminate' Dr Will for the purposes of s 106ZPQ(2)(b) of the Health Insurance Act? -- 118 of 120 -- [2026] WASC 181 SEAWARD J Page 119 Answer 4: The penalty privilege does not apply to the exercise of the powers in s 89B(2) and s 105A(2) of the Health Insurance Act. Accordingly, the answer to question 4 is, no. Question 5: Does s 106ZR(1) of the Health Insurance Act apply so as to make it unlawful for the Board and/or Dr Will to disclose to the Tribunal (including a legally qualified member, a non-judicial member or an ordinary member of the Tribunal), and/or for the Tribunal to admit into evidence in the Tribunal Proceeding: (a) the Documents Produced; (b) the Statement of Concerns; (c) the Oral Evidence; (d) the Transcript Extract; (e) the Final Report; (f) the Final Determination; (g) the Expert Reports; and/or (h) the Overlap Documents? Answer 5: The Tribunal is not 'another person' for the purposes of s 106ZR of the Health Insurance Act, and therefore it will not be contrary to s 106ZR for the Board and/or Dr Will to disclose to the Tribunal any of the specified categories of documents. Whether those documents should be admitted by the Tribunal in evidence against Dr Will in the Tribunal Proceedings is a matter for the Tribunal to determine. -- 119 of 120 -- [2026] WASC 181 SEAWARD J Page 120 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. MA Associate to the Hon Justice Seaward 11 MAY 2026 -- 120 of 120 --