Background
Dr Albert Stuart Reece, a general practitioner specialising in addiction medicine, is seeking judicial review of findings by Professional Services Review Committee No 1578 that he engaged in “inappropriate practice” within the meaning of s 82(1)(a) of the Health Insurance Act 1973 (Cth). The Committee concluded its hearings in August 2023 and issued a final report in December 2024. An affidavit from Professional Services Review Agency (PSRA) employee Margaret Parker subsequently revealed that PSRA staff had drafted both the draft and final reports before presenting them to Committee members for comment, that Committee members and PSRA staff discussed findings by email, and that Parker had advised the Committee members they were not required to read Dr Reece’s submissions and attachments in full. These disclosures prompted Dr Reece to add grounds of apprehension of bias and failure to independently consider material to his amended originating application.
In February 2026 Dr Reece sought non-standard discovery from the Director of Professional Services Review. Orders made on 19 March 2026 required the Director to give discovery of specified document categories but expressly exempted: (a) documents protected by s 106F(1) of the Health Insurance Act, which confers on Committee members the same protection and immunity as a Justice of the High Court; and (b) documents relating solely to clerical or administrative services. Dr Reece then applied to vary those exemption orders — specifically, to require the Director to at least list the s 106F(1) documents in the formal discovery schedule (Form 38) together with stated grounds of immunity, so that he could challenge the immunity claims document by document.
The Director opposed any such listing requirement, arguing that the s 106F(1) immunity extends beyond compelled production to bar identification of documents where doing so would reveal any aspect of the Committee’s decision-making process.
The Court’s Holding
Rangiah J refused the application to vary Order 4(a). Drawing on Gaudron J’s decisions in Herijanto v Refugee Review Tribunal (2000) 74 ALJR 698 and Herijanto v Refugee Review Tribunal (No 2) (2000) 74 ALJR 703 — which established that equivalent immunity provisions shielded tribunal deliberations from revelation “by whatever means” — and on French J’s reasoning in Saint v Holmes (No 1) [2005] FCA 1057 concerning the very same HI Act immunity, the Court held that s 106F(1) prevents not only compelled production of documents but also their identification in a discovery list where that identification would disclose any aspect of the decision-making process. Even a description as apparently neutral as “an email from Ms Parker to the Committee members dated 17 January 2024” would reveal that communications passed between PSRA staff and Committee members at a specific point in the deliberative process, thereby exposing an aspect of that process that the immunity is designed to protect. The Court further held that, because s 23 of the Federal Court of Australia Act 1976 (Cth) does not empower the Court to make orders inconsistent with a statutory immunity, it lacked jurisdiction to order the Director to compile such a list.
Rangiah J allowed the application to vary Order 4(b), setting it aside entirely. The exemption for documents relating solely to clerical or administrative services added nothing of practical utility beyond the discovery categories already defined in Schedule A to the earlier orders. Because the order was unnecessary, it was set aside rather than varied.
Key Takeaways
- The quasi-judicial immunity under s 106F(1) of the Health Insurance Act 1973 — mirroring the protection of a High Court Justice — extends to revelation by any means of the Committee’s decision-making process, not merely to compelled production of documents at the inspection stage.
- Even an apparently anodyne description of a document in a formal discovery list (Form 38) falls within the immunity if that description would disclose that communications passed between PSRA staff and Committee members in the course of deliberation.
- The Federal Court cannot invoke its general powers under s 23 of the Federal Court of Australia Act 1976 to order discovery steps that are inconsistent with a statutory immunity; the immunity places a hard jurisdictional limit on the orders available to the Court.
- Discovery protections for “clerical or administrative” documents should not be ordered unnecessarily — where document categories are already appropriately bounded, a blanket carve-out for administrative records adds nothing and may be set aside.
Why It Matters
This decision materially narrows the evidentiary tools available to medical practitioners challenging Professional Services Review Committee findings on grounds of apprehension of bias or failure to independently consider material. By confirming that the s 106F(1) immunity operates at the discovery-listing stage — not only at the point of production — the Court forecloses the conventional mechanism by which a party tests privilege claims document by document. Practitioners in this position will be heavily dependent on evidence voluntarily produced by the opposing party (as occurred here through Ms Parker’s affidavit) rather than on compelled discovery of the Committee’s deliberative record.
More broadly, the decision reinforces and extends the Herijanto line of High Court authority to the PSR context, affirming that High Court Justice-equivalent statutory immunity is a genuine shield against deliberative exposure rather than a narrowly construed production privilege. Any litigant seeking to probe the internal workings of a statutory body that holds equivalent immunity will face the same structural constraint: the protection travels with the deliberative process itself, regardless of who holds the relevant documents or what procedural vehicle is used to seek them.