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Published online by Cambridge University Press: 24 January 2025
Health is one of the major areas of public expenditure in Australia. In 1991–1992, Australian governments spent $22.5 billion of the total health expenditure of $33.2 billion. A substantial part of Commonwealth expenditure subsidises patient access to private medical services through Medicare, which operates within the fee-for-service system with no cap on the number of services or on the total budget outlays for them.
Research and writing of this paper were supported by a grant from the Australian Research Council to Beth Gaze and Peter Hanks of Monash University on the topic “Legal Regulation of the Australian Health System”. Their assistance in planning the paper and their comments on drafts are gratefully acknowledged.
1 Australian Institute of Health and Welfare, Health Expenditure Bulletin (Number 8 April 1993) at 1. The Commonwealth is the source of 42.4% (about $14 billion) of the government funds spent in 1991-1992 (at 9).
2 Just under $5.02 billion was paid in Medicare benefits in 1992-1993, an increase of 9.5% on the $4.58 billion paid in 1991-1992: Department of Health, Housing, Local Government and Community Services, Annual Report 1992-93 at 19 of StatisticalSupplement.
3 Between 1984-1985 and 1989-1990, medical service use per person increased by 23.2% overall and by 42.6% in pathology: J Deeble, Medical Services Through Medicare, National Health Strategy Background Paper No 2 (February 1991) at 6-7.
4 S Sax, Health Care Choices and the Public Purse (1990) at ch 1.
5 Queensland Medical Laboratory v Blewett (1989) 84 ALR 615.
6 J Deeble and P Lewis-Hughes, Directions for Pathology, National Health Strategy Background Paper No 6 (]uly 1991) at 53.
7 Auditor-General, Audit Report No 17, 1992-93, Medifraud and Excessive Servicing Health Insurance Commission (1992) at 12 (cited as Audit Report No 17). The value of pathology services processed in 1992-1993 was more than $633 million: Health Insurance Commission, Annual Report 1992-93 (statistical tables at 14.
8 J Deeble and P Lewis-Hughes, above n 6 at 13.
10 Ibid at 43. They charged $293.8 million of the $641.3 million in total fees charged under Medicare in that year.
11 Of the 500 APAs which existed in 1988-1989, 159 were companies, 60 were partnerships and 164 were individuals. The remaining 117 were State APAs: J Deeble and P Lewis-Hughes, above n 6 at 7 and 42-44. A recent amendment to the Health Insurance Act by s 9 of the Health and Community Services Legislation Amendment Act (No 2) 1993 (Cth) provides that a pathology authority that is a wholly or partly owned State, Territory or public authority is no longer an approved APA.
12 The Commonwealth Department responsible for health policy has changed its name several times over the period relevant to this paper and for simplicity will be called the Department of Health. Its current title is the Department of Human Services and Health. McMillan, J Commonwealth Constitutional Power Over Health (1992)Google Scholar at 1.
13 Carney, T and Hanks, P Australian Social Security Law, Policy and Administration (1986)Google Scholar at 176-177.
14 Attorney-General for Victoria ex rel Dale v Commonwealth (1945) 71 CLR 237. The Court held invalid the Pharmaceutical Benefits Act 1944 (Cth), whichestablished a scheme providing free medicines, because it sought to regulate certain activities of pharmacists and medical practitioners when there was no Commonwealth power to do so.
15 Constitutional Commission, Final Report of the Constitutional Commission Volume 2 (1988) at para 10.258.
16 J McMillan, above n 12 at 32-35.
17 Federal Council of the British Medical Association in Australia v Commonwealth (the BMA case) (1949) 79 CLR 201 at 260 per Dixon J.
18 Ibid at 230 per Latham CJ.
19 Health Insurance Act 1973 (Cth), s 19(5). The exclusion probably also reflects the need to limit expenditure.
20 Community-wide prevention programmes get support instead via Commonwealth grants authorised by the constitutional powers with respect to finance: J McMillan, above n 12 at 11-16.
21 BMA case (1949) 79 CLR 201 at 242-243 per Latham CJ.
22 Alexandra Private Geriatric Hospital v Commonwealth (1987) 162 CLR 271 at 279 (Full Court of the High Court).
23 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77 per Dixon J.
24 BMA case (1949) 79 CLR 201 at 274 per Dixon J; see generally J McMillan, above n 12 at 22-23.
25 The General Practitioners Society in Australia and Ors v Commonwealth (the GPS case) (1980) 145 CLR 532 at 557-558 per Gibbs J.
26 (1980) 145 CLR 532. For example, pathology providers were required to obtain annual ministerial approval and sign undertakings as to the ethics of their practice. These requirements still apply.
27 Health Insurance Act 1973 (Cth), ss 16A(2) and 16A(5AA) and Division 4A of Part IIA.
28 BMA case (1949) 79 CLR 201; Alexandra Private Geriatric Hospital v Commonwealth (1987) 162 CLR 271. The High Court also relied in the latter case on the principle of constitutional interpretation that a single law can possess more than one character (at 279).
29 J McMillan, above n 12 discusses them comprehensively at 42-50. Section 51(31) has received recent judicial consideration in the context of a litigated claim for assigned benefits for pathology services: Peverill v Health Insurance Commission (1992) 104 ALR 449. The applicant argued sucessfully thatan Act which provided for the retrospective reduction in the amount of Medicare benefits payable to him was a law with respect to the acquisition of property within s 51(31). The Court held that the acquisition was effected otherwise than on just terms. An appeal before the Full Federal Court against this decision was removed, pursuant to s 40 of the Judiciary Act 1903 (Cth), to the High Court, whose decision allowing the appeal was handed down on 10 March 1994: Health Insurance Commission v Richard Edwin Peverill (unreported decision FC 94/006). For a detailed discussion of the competing public and private interests raised by the case, see Hanks, P, “Adjusting Medicare Benefits: Acquisition of Property?” (1992)Google Scholar 14 Syd L R 495.
30 (1949) 79 CLR 201.
31 (1980) 145 CLR 532.
32 BMA case (1949) 79 CLR 201 at 249-50 per Latham CJ; at 261-262 per Dixon J; at 287 per Williams J; GPS case (1980) 145 CLR 532 at 555 per Gibbs J.
33 BMA case (1949) 79 CLR 201 at 249 per Latham CJ; at 287 and 291 per Williams J; at 293-294 per Webb J. Rich J, the other member of the majority, perhaps did not support the broadest reading of “civil conscription” (at 255-256).
34 Ibid at 278 per Dixon J; at 283-284 per McTiernan J.
35 Ibid at 262 per Dixon J.
36 (1980) 145 CLR 532 at 549 per Gibbs J.
37 Ibid.
38 Ibid at 558 per Gibbs J.
39 Alexandra Private Geriatric Hospital v Commonwealth (1987) 162 CLR 271 at 279. The quotation is from the BMA case (1949) 79 CLR 201 at 286-287 per Williams J.
40 GPS case (1980) 145 CLR 532 at 537-538 per Barwick CJ; at 550 per Gibbs J; at 565 per Murphy J; at 566 per Aickin J.
41 J McMillan, above n 12 at 46 raises the possibility that moves away from a purely fee-for-service system might test the prohibition again. The former Minister for Health refused to rule out a system “where general practitioners are given more autonomy with lump-sum government funding alongside fee-for-service payments”: Age 15 September 1993 at 4.
42 An “excessive pathology service” is defined in s 3 of the Health Insurance Act to mean a service “that is not reasonably necessary for the adequate medical or dental care of the patient concerned”.
43 Parliament of the Commonwealth of Australia Joint Committee of Public Accounts, Report No 236 – Medical Fraud and Overservicing Inquiry – Report on Pathology (1985), cited as PAC Report No 236; Pathology Services Working Party, Report of the Pathology Services Working Party (1977).
44 Audit Report No 17, above n 7, esp chs 1 and 5; Harvey Bates and Co, Health Insurance Commission Review of the Operations and Procedures for the Conduct of Investigations (1992), esp at 2-6 (hereafter cited as the Bates Report).
45 Queensland Medical Laboratory v Blewett (1989) 84 ALR 615.
46 A pathology service must be a “professional service” (s 3) which is a “clinically relevant service” (s 3). It must be determined to be necessary, ie “reasonably necessary for the adequate medical care of the patient concerned”: s 16A(1) andl6A(12).
47 Most pathology tests must be requested or confirmed in writing: s 16A(4) and 23DK. A pathology service may be an excessive service whether or not it was requested unders 16A, but the cases in which a pathologist acting on a request may be found to have rendered excessive services will be confined to those involving “personal fault”: Minister for Health v Peverill (1991) 100 ALR 73.
48 The Act prescribes a limited range of approved collection places: s 16A(5AA). Where samples are collected in commercial collection centres, these must be licensed under Part IIA.
49 A test must be performed by or “on behalf of” an Approved Pathology Practitioner in a laboratory accredited by the Department of Health to perform that type of test: s 16A(2)(a) and 16A(2)(b). The proprietor of the laboratory must be an Approved Pathology Authority: s 16A(2)(c). A recent amendment to s 16A ensures that not more than one APA controls a laboratory, to prevent double claims for the same services: see s 7 Health and Community Services Amendment Act (No 2) 1993 (Cth).
50 Section 16A(5A).
51 Section 19. Specific screening programmes like the one for cervical cancer may be funded under Part IV of the Act.
52 Sections 23DA-23DK. The Minister considers, amongst other things, the provider's previous conduct under Medicare and the conduct of those business associates of the provider who may derive a financial benefit from the practice: s 23DC(6).
53 Section 23DB.
54 Section 23DC.
55 Section 23DN. For an example of the Minister's refusal to accredit a laboratory because of failure to meet quality assurance standards, see Preci Services Pty Ltd v Minister for Health, Housing and Community Services (1992) 15 AAR 505.
56 The Health Insurance Commission processed claims for more than 172 million services on a “fee-for-service” basis in 1992-1993: HIC, Annual Report 1992-93 (statistical tables at 12).
57 PAC Report No 236, above n 43 at 81-82.
58 Ibid.
59 The biggest rises in Medicare claims for pathology tests between 1984-85 and 1988-89 were in HDL cholesterol (511%) and triglyceride and total cholesterol measurement (303%),which are likely to be at least partly attributable to preventive health management rather than the diagnosis of disease: J Deeble and P Lewis-Hughes, above n 6 at 36-39.
60 The Public Accounts Committee concluded that legal action and attempts at restitution from pathology providers had been shown to be clumsy, inefficient and costly. Preventive action was preferable: PAC Report No 236, above n 43 at 82.
61 Ibid at 41.
62 Ibid.
63 Sections 23DL, 124FB and 124FC. One practitioner was referred to a Medicare Participation Review Committee in 1992-93 for a possible breach of an APP undertaking: HIC, Annual Report 1992-93 at 32.
64 Commonwealth Department of Health, Housing and Community Services, Compensation and Professional Indemnity in Health Care A Discussion Paper (1992) at 69-70. There is little evidence to support anecdotal reports that changes in clinical practice are related to trends in litigation, although overseasstudies have found that doctors' perceptions of liability have had a profound influence on their practice and on service delivery.
65 Tarr, A and Moore, A P “Regulatory Mechanisms in Respect of Entrepreneurial Medicine”(1988)Google Scholar 16 Australian Business Law Review 4 at 6.
66 Grabosky, P and Sutton, A, Stains on a White Collar Fourteen Studies in Corporate Crime and Corporate Harm (1989)Google Scholar at 81.
67 Audit Report No 11, above n 7 at xi; D Challinger, “Fraud on Government A Criminological Overview” in (1988) 56 Canberra Bulletin of Public Administration 18 at 21.
68 P Grabosky and A Sutton, above n 66 at 78; Audit Report No 17, above n 7 at 15.
69 P Grabosky and J Braithwaite, Of Manners Gentle: Enforcement Strategies of Australian Business Regulatory Agencies (1986).
70 HIC, Annual Report 1992-93 at 29.
71 P Grabosky and J Braithwaite, above n 69 at 155.
72 HIC, Annual Report 1991-92 at 35.
73 The new Health Legislation (Professional Services Review) Amendment Act 1994 (Cth), assented to on 16 February, 1994, repeals Divisions 3 and 3A of Part V of the Health Insurance Act (the peer review system comprising Medical Services Committees of Inquiry) and replaces it with a new system, effective from 1 July 1994.
74 Hill v Minister for Community Services and Health and Ors (1991) 30 FCR 272 at 282 per Olney J.
75 This will not change with the new Professional Services Review system. Practitioners will only be referred for review after advice and counselling from the HIC have failed to influence those practices which have caused concern: see H Reps Deb 1993, Weekly Hansard No 7 at 1550-1.
76 Audit Report No 17, above n 7 at 44. The HIC used the MSCI system more aggressively in 1992 when it initiated formal investigations into 11 general practitioners with suspected excessive levels of pathology ordering, but this reflected the lack of success in prosecuting cases of pathology inducements: HIC, Annual Report 1991-92 at 38.
77 For example, there was no power to demand a doctor's records. Also, determinations for repayment of benefits could be based only on the number of patients actually reviewed, which averaged 20 to 30 in each case. In many cases, this was believed to represent only a small proportion of the excessive servicing that had occurred: Audit Report No 17, above n 7 at 5 and 13.
78 Section 95 of the Health Insurance Act, as amended by the Health Legislation (Professional Services Review) Act 1994 (Cth) (all subsequent referencesare to the principal Act, as amended). Practitioners are referred to the Director of Professional Services Review by the HIC (s 86). Committees must include some doctors who are members of the profession or specialty in which the person under review was practising when he or she performed or initiated the services which are the subject of the review: s 95(2).
79 Section 82(1) and (2). The section applies also to an employer or officer of a body corporate who “knowingly, recklessly or negligently causes or permits” an employee practitioner to engage in conduct that would constitute inappropriate practice.
80 Section 106U.
81 Section 92. The power can be exercised only with the consent of the practitioner and secrecy provisions apply.
82 The MSCI system was described by one judge as “a complicated procedure protective of the position of medical practitioners”: Edelsten vHealth Insurance Commission (1990) 96 ALR 673 at 688 per DaviesJ.
83 Sections 114-119 (appeal to a Medical Services Review Tribunal against a determination of a Committee) and 124-124A (appeals to the Federal Court from a Tribunal Decision on a question of law only).
84 Although not the right to an adviser at a Committee hearing: s 103.
85 Sections 104-105. A person under review who fails to attend a hearing after notice has been given under s 102 must be disqualified fully from practice under Medicare until he or she complies: s 105(3). There is an exception for ill-health.
86 Sections 106G-106K. The samples must be produced in accordance with ministerial directions. The person under review may request the Committee to allow the person to present his or her case, addressing all of the referred services, in which case the Committee may not use the sample: s 106J(2) and (3).
87 Edelsten v Health Insurance Commission (1990) 96 ALR 673 at 686. However, there was some judicial approval for MSCIs considering an unusual pattern of services rendered to a larg number of patients in deciding whether there was evidence of excessive servicing: Freeman v McCubbery (1986) 65 ALR 361 at 370.
88 Section 86.
89 This is not to say that what the profession considers appropriate cannot encompass broader considerations than medical necessity, and doctors are now more likely to appreciate the dilemmas of competing priorities between the individual patient and taxpayers. However, there is little if any guidance, legislative or otherwise, on how these broader considerations should be taken into account at either the individual level or in the health system generally: National Health and Medical Research Council, Discussion Paper on Ethics and Resource Allocation in Health Care (1991).
90 For a detailed analysis of the issues, see B Gaze, “Resource Allocation – the Legal Implications” (1993) 9 Journal of Contemporary Health Law and Policy 91. Minister for Health v Thomson (1985) 60 ALR 701; Freeman v McCubbery (1986) 65 ALR 36; Mcintosh v Minister for Health (1986) 17 FCR 463; Freeman v McKenzie (1988) 82 ALR 461; Taylor v Minister for Health (1989) 23 FCR 53; Sinja v Asher (1989) 22 FCR 423; Peverill v Australian Minister for Health & Ors (1989) 85 ALR 257;
91 Minister of State for Health v Peverill (1991) 100 ALR 73; Tiong and Another v Minister for Community Services and Health (1989) 87 ALR 723; (1990) 93 ALR 308 (Full Court); Edelsten v Health Insurance Commission & Ors (1990) 93 ALR 711; (1990) 96 ALR 673 (Full Court); Hill v Minister for Community Services and Health and Ors (1991) 30 FCR 272; Romeo v Asher (1991) 100 ALR 515.
92 Although it has been argued above that at least in terms of procedure there is a better balance in the new scheme between the rights of the person under review and the efficiency of the review system.
93 P McAuslan, “Administrative Law, Collective Consumption and Judicial Policy” (1983) 46 MLR 1 at 6.
94 Freeman v McKenzie (1988) 82 ALR 461 at 472-473 per Woodward J.
95 Tiong and Another v Minister for Community Services and Health (1990) 93 ALR 308 at 315 per i Davies J.
96 Ibid.
97 Romeo v Asher (1991) 100 ALR 515 at 532.
98 For example, in Taylor v Minister for Health (1989) 23 FCR 53, Pincus J held that services i could be regarded as excessive if they could have been provided in a smaller number of 1 consultations; the legislature did not intend the medical necessity of the services to be the only criterion of excessiveness.
99 Sections 128 (false statements in relation to Medicare benefits), 129AA (bribery and I inducements to request pathology services) and 129AAA (prohibited practices in relation i to the rendering of pathology services). The inducements offences will be the subject of I new legislation in the near future.
100 Sections 29A (false pretences), 29B (false representations), 29D (fraud) and 86 (conspiracy to defraud).The prosecution policy of the Commonwealth is that the specific offence provisions in the subject legislation will be applied, unless they do not deal sufficiently with the criminality of the offender. In practice, this means that more serious examples of fraudulent conduct will usually be dealt with under the Crimes Act: D Sweeney and N Williams, Commonwealth Criminal Law (1990) at 224.
101 HIC, Annual Report 1991-92 at 38.
102 Audit Report No 17, above n 7 at 2.
103 I Temby, “Impediments to Tackling Fraud” (1988) 56 Canberra Bulletin of Public Administration 77.
104 The case is cited anonymously in Audit Report No 17, above n 7 at 14.
105 Audit Report No 17, above n 7 at 14.
106 The Government has acknowledged that greater measures are needed to address inducements by pathology providers to other doctors to order unnecessary tests. New measures are currently being developed, but “the problem has too many dimensions to enable the issue to be resolved in the short term”: Sen Deb 1993, Weekly Hansard No 15 at 4765.
107 Audit Report No 17, above n 7 at 13-15.
108 I Temby, above n 103 at 80.
109 Health Legislation (Powers of Investigation) Act 1994 (Cth). Senate amendments have weakened the proposed powers of the HIC, particularly in respect of the powers of authorised officers to enter premises for the general purpose of monitoring compliance with the legislation.
110 Bates Report, above n 44 at 25-30; HIC, Annual Report 1991-92 at 38-39.
111 Audit Report No 17, above n 7 at 44. It has been recommended that counselling be confinec to cases of minor overservicing only. At present there is no such restriction.
112 P Grabosky and J Braithwaite, above n 69, esp chs 1,15 and 16.
113 A Freiberg, “Enforcement Discretion and Taxation Offences” (1986) 3 Australian Tax Forur 55 at 68.
114 Audit Report No 17, above n 7 at 44.
115 P Grabosky and A Sutton, above n 66 at 88.
116 P Grabosky and J Braithwaite, above n 69 at 207-210 and Postscript to ch 14. In an area a politically sensitive as health, the co-operation of the professional groups is vital to th success of most Government initiatives and the Government has emphasised thiimportance of AMA consultation and co-operation in developing its new system of overservicing and fraud control measures. At what point involvement constitutes “capture” is a debatable issue worthy of further study.
117 D Challinger, “Fraud on Government A Criminological Overview” in (1988) 56 Canberra Bulletin of Public Administration 18 at 19.
118 Ibid at 22.
119 Bates Report, above n 44 at 16.
120 P Grabosky and J Braithwaite, above n 69 at 112.
121 P Cashman, “Medical Benefit Fraud: Prosecuting and Sentencing of Doctors” (1982) 7 Legal Service Bulletin 58-61 and 116-121.
122 R Sarre, “Alternative Remedies for Fraud Rule of Law Versus Administrative Remedies” (1988) 56 Canberra Bulletin of Public Administration 110.
123 I Ayres and J Braithwaite, Responsive Regulation Transcending the De-Regulation Debate (1992) at 6-7.
124 Audit Report No 17, above n 7 at xiii.
125 The “crackdown on overservicing and fraud” is expected to reap savings of $25 million in 1993/94 and $64.9 million in 1994/95: Australian 18 August 1993 at 4.
126 J Deeble and P Lewis-Hughes, above n 6 at 19. Schedule fees for pathology rose by 8.9% on average between 1984-85 and 1989-90, compared to 39.4% for other medical services.
127 Audit Report No 17, above n 7 at 44.
128 J Deeble and P Lewis-Hughes, above n 6 at 50-52.
129 (1989) 84 ALR 615.
130 The provisions referred to in this section are those added to the Act by Act No 75 of 1986 and are set out at (1989) 84 ALR 615 and 619-621. They were subsequently repealed by Act No 95 of 1989.
131 (1989) 84 ALR 615 at 642.
132 The PSAC included nominees of the Minister, the Royal College of Pathologists of Australia and the Australian Medical Association and was chaired by a Deputy President of the (then) Conciliation and Arbitration Commission. Its functions were set out at s 78c(l): see (1989) 84 ALR 615 at 620.
133 The Federal Court held that the proceedings under the ADJR Act were not competent as the Minister's determination, being a decision of a legislative rather than an administrative character, was not a decision to which the Act applied. The Court nevertheless had jurisdiction by virtue of a claim by the AAPP for prohibition under s 39b of the Judiciary Act: (1989) 84 ALR 615 at 634-6.
134 Section 78c(2) made provision for the Minister to determine principles to be applied by the PSAC in the performance of its functions. These principles, which ran to 10 pages, formed a Schedule to the Act.
135 (1989) 84 ALR 615 at 636, citing as authority Bread Manufacturers of New South Wales v Evans (1981) 56 ALJR 89 at 93 per Gibbs CJ.
136 The principles are set out at (1989) 84 ALR 615 at 621-624.
137 (1989) 84 ALR 615 at 640-641.
138 (1989) 84 ALR 615 at 627 and 630.
139 (1989) 84 ALR 615 at 627.
140 Ibid at 630. The difficulties of obtaining information about cost structures and cost comparisons across the pathology industry are not new and still impede health policymakers today: J Deeble and P Lewis-Hughes above n 6 at 45.
141 The HIC was at the time disbursing an average of $1.88 million each day in payments for pathology services: (1989) 84 ALR 615 at 619. By implication, any delay in stemming acknowledged abuses would affect the level of public expenditure, given the sheer volume of claims.
142 Auditor-General, Audit Report No 32 1990-91, Department of Community Services and Health – Administration of the Medicare Benefits Schedule (1991) at 44.
143 por exampie pharmacy Guild of Australia v Riordan (1989) 18 ALD 446 (tribunal decision to reduce dispensing fees paid to pharmacists under the PBS); Nagrad Nominees v Howell (1981-2) 38 ALR 145 (departmental decision to reduce payments to nursing home proprietors).
144 P McAuslan, “Administrative Law, Collective Consumption and Judicial Policy” (1983) 46 MLR 1 at 4.
145 Ibid at 12.
146 J Barnes, “Reflections on the Chemists' Dispute” (1990) 18 Australian Business L Rev 254 at 258-9.
147 For a more detailed discussion of this thesis in the context of decisions on nursing homes funding, see K Wheelwright, “Nursing Homes – Policy, Profit and Litigation” (1992) 2 Griffith LR 103 at 146-151.
148 J Barnes, “Administrative Law” in R Baxt and G Kewley (eds), An Annual Survey of Australian Law 1989 (1990) at 21.
149 A recent example of such statements of principle in health legislation is the Medicare Agreements Act 1992 (Cth), which confirms the Medicare principles of choice, universality and equity in service provision: Department of Health, Housing and Community Services, Annual Report 1992-93 at 46.
150 J McMillan, above n 12 at 1. Examples include the Smoking and Tobacco Products Advertisements (Prohibition) Act 1989 (Cth), based largely on the corporations power ir s 51(20) and the Narcotic Drugs Act 1967 (Cth), based on the external affairs power ir s 51(29).
151 J McMillan, above n 12 at 77.
152 (1971) 124 clr 468 See p j Hanks, Constitutional Law in Australia (1991) at 290.
153 R v Federal Court of Australia; ex parte Western Australian National Football League (1979) 14: CLR 190 at 233.
154 Ibid at 235.
155 Commonwealth v Tasmania (1983) 158 CLR1.
156 J McMillan, above n 12 at 35-37.
157 NSW v Commonwealth (1990) 90 ALR 355.
158 J McMillan, above n 12 at 18-19.
159 R Cranston, Law, Government and Public Policy (1987) at x-xii.