Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: followed
In assessing the procedural fairness requirements in the present case, a relevant consideration is whether the respective decisions of the Director and the Committee may be said to part of the one decision-making process. In the matter of Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564, the High Court considered whether the operation of the Criminal Justice Commission of QLD and Parliamentary Criminal Justice Committee could be said to be part of a unitary decision-making process. This, in their Honours' view, was an essential requirement in excluding the duty. At 578, Mason CJ, Dawson and Toohey JJ noted: 'It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if "the decision-making process, viewed in its entirety, entails procedural fairness" (South Australia v. O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 at 389) .' 44 Accordingly, it is permissible to have regard to the scheme as a whole. Looking at the process in the present case in its entirety, the contested decisions of the Director and Committee were clearly part of, and directed to, the ultimate determination by the Determining Authority. They may be characterised as part of a single, sequentially-stepped decision-making process leading to a final outcome. This consideration leads to the conclusion that the legislative scheme is sufficiently exhaustive to indicate a legislative intent to exclude the application of additional measures to achieve procedural fairness. 45 As counsel for the Respondents points out, and as appears from the material attached to the Adjudicative Referral, the reports prepared by Dr Davidson and Dr Dawson were not before the Committee, which proceeded to hear the matter on the material before it. Accordingly, it cannot be said that the Committee's decision was "infected" or "poisoned" in any way by the two reports. 46 In this case, I am satisfied that the statutory scheme, considered as a whole, exclusively provided for procedural fairness principles to the extent that the legislature intended those principles to apply. I am satisfied that in its entirety, the process in fact afforded procedural fairness to the Applicant in respect of the Director's decision. Accordingly, I do not consider that there is any substance in the procedural fairness argument based on the Director's examination of the reports of Dr Davidson and Dr Dawson. 47 The Applicant also challenges the decision of the Director on the basis that he sent the Committee copies of the 39 medical records together with his Director's Report which stated that it was open to the Committee to make a finding of inappropriate practice in relation to Dr Phan. It is submitted that this sample of records was not "random" because it contained items that had been previously examined by the Director and found to be examples of inappropriate practice. Therefore, the Applicant contends, the samples were not in accordance with the statutory procedure and were biased or skewed in such a way that any decision in relation to them must be invalid. 48 It is common ground that the Commission drew a preliminary random sample and then asked Dr Phan to produce the patient records relating to the item 23 services in that sample. I accept the view of Professor Nicholls that from a statistical point of view, it is irrelevant that the Committee looked at the same random samples and services as the Director. It was the Committee, rather than the Director, which had the authority to decide whether the sample disclosed inappropriate practice.