Kaushik, Nandini --- "The Public Law Challenges Of Complex Legislation: A Case Study Of Medicare" [2021] UNSWLawJlStuS 8; (2021) UNSWLJ Student Series No 21-8

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THE PUBLIC LAW CHALLENGES OF COMPLEX LEGISLATION: A CASE STUDY OF MEDICARE

NANDINI KAUSHIK

The legislative practice of the Australian Parliament has fundamentally shifted since Federation in order to accommodate the modern administrative state, resulting in what can only be characterised as an almost impossible task for ordinary Australian citizens: accurately discerning their rights and duties under the law. From the perspective of the moralist rule of law tradition, which asserts that the law being knowable and accessible by those who are subject to it is critical for the health of any legal system that aspires to govern based on ideals of fairness and justice,^[1] the obvious deficiencies of this shift in legislative practice gives rise to a problem in Australia.^[2] In the spirit of Lisa Burton Crawford’s call for academic debate on the altered legislative dynamics of the Australian Parliament,^[3] this paper explores whether Australia’s public law doctrine is equipped to address the above phenomenon, using the Australian Medicare legislative scheme as an example. I first analyse and present evidence that compares state and federal legislative practices to suggest that at a federal level, legislation is a tangled and confused mess, changing too rapidly for any layperson to follow. Whilst it may be easy to dismiss this concern with the theories of American legal scholar Edward Rubin – where he suggests that legislation actually reflects a comprehensive set of ‘internal governmental instructions’ as opposed to a method of communicating legal obligations to the public – these are insufficient.^[4] Within this framework, soft law instruments would be necessary to communicate legal norms, however these instruments have no accountability mechanisms, as the Australian legal system prizes, above all else, a strict separation of powers.^[5] Following this theoretical outline, I then introduce the case study of Medicare, presenting the legislative scheme as perfectly indicative of this public law dilemma. I align this statutory scheme with the image of federal legislation presented in the first part of this paper, whereby the ordinary meaning of the legislation, specifically with respect to billing decisions, is incomprehensible by the doctors who are held responsible for their own non-compliance.^[6] Finally, I consider the recognition of judicial deference to the executive interpretation of the Medicare legislative scheme as a remedy for this gap in Australian public law doctrine, ultimately concluding that although Skidmore-style deference is attractive and potentially viable, it may actually mask the problem of inconsistencies that are rooted in poor legislative practice.

I THE AGE OF STATUTES: COMPLEX STATUTORY SCHEMES

The reality of Australian law resembles the often-spoken cliché, that, for an ordinary person the law is over-complicated and incomprehensible.^[7] Australia’s modern administrative state has engendered a shift in the character of legislative practice, increasing the volume of primary legislation enacted each year.^[8] Specifically, turning our attention to federal statutes, it is possible to note the generally increasing number of statutes being enacted each year since Federation in 1901.^[9] As compared with the average enactment of twenty three Acts per year in the first decade of Australian nationhood, the federal Parliament is now responsible for preparing approximately one hundred and fifty nine Bills per year for royal assent.^[10] This serves to demonstrate a 580 percent increase in legislative activity in Canberra since Federation. Additionally, it may also be pertinent to acknowledge the uncountable number of federal delegated legislation instruments produced during the COVID-19, global health pandemic. In what can only be described as a frenzy of law-making that occurred following the outbreak of the novel coronavirus, it is not inaccurate to suggest that the federal administrative state has grown significantly since the above statistics were compiled.^[11] Meanwhile, the rate at which State legislatures have enacted and considered legislation has remained relatively constant since 1940, counterintuitively not declining after the rapid proliferation of federal lawmaking.^[12] Broadly, this tension between the more conservative legislative practices of states as compared with the practices of the federal parliament makes evident that this proliferation of federal legislation cannot be explained away by asserting that the federal legislature has simply encroached on the legislative domain of the states.^[13]

It would be illogical to assume that a simple increase in the number of federal statutes enacted each year reflects a broader trend of complexity in the practices of the Australian Parliament. In fact, the very definition of complexity, ‘as that which consists of interconnected or interwoven parts,’ implies that simply noting an increase in the length or amount of legislation does not necessarily connote increased incomprehensibility.^[14] The Australian population has grown since Federation, and as such it cannot be discounted that perhaps all the legislation enacted is necessary to address the modern reality. But, when this trend is accompanied by the increased length of individual statutes, hyper dense cross-cutting between legislative schemes and regular amendments to individual pieces of legislation, it is not so easy to dismiss the characterisation of legislative practice as inexplicably complex. In 1932 there were 2959 pages of legislation in force as compared with the 1974 reprint of federal legislation, which ran to 11,670 pages.^[15] Most alarmingly, as of 2018, the total number of federal statutes required to make up the 11,670 pages recorded in 1974 was three. Namely, the Social Security Act 1991 (Cth) (‘Social Security Act’), the Corporations Act 2001 (Cth) and the Income Tax Assessment Act 1997 (Cth) (‘Income Tax Assessment Act’); this gargantuan page count is surprisingly not inclusive of the regulations made pursuant to these Acts. It would be inaccurate to consider these Acts to be outliers, and thus, not indicative of the majority of legislation, as the Australian Government Office of Parliamentary Counsel has acknowledged that it is not uncommon for statutes to be drafted with several hundred pages. In fact, there are twenty six Acts still in force today with a page count of over five hundred.^[16] Moreover, this highly wordy legislation, some of which is incomprehensible for most average Australians, is made even more problematic by the consistent references to other legislative instruments.^[17] The formation of webs of legislation that regulate a single issue is extremely common in Australia, as drafters aim to make definitions consistent with other similar statutes.^[18] Whilst this practice was supposed to increase consistency, there has been largely contested jurisprudence about whether the definition applies in a stand-alone capacity or whether it is to be imported within its statutory context, where the legislation refers to definitions or sections in other Acts.^[19] Practically, this results in statutes being unknowable until they have been tested by a court, compounding the issue of incomprehensibility. Furthermore, although some level of legislative change is necessary to ensure that the law accurately reflects a modern context, impossibly frequent amendments to Acts such as the ‘Social Security Act’, which has been amended approximately eleven times a year since it was enacted, emphasises the difficulty one may experience when attempting to understand their rights and obligations under the scheme.^[20] Consequently, whilst the inclusion of detail may enable clarity, and it is unrealistic to assume that complex policy areas which are regulated by legislation can be simplified into rules that are easily digestible, too much specificity makes the legislation unreadable and therefore unknowable by ordinary Australians.^[21]

Thus, current practices of legislative drafting arguably engender complexity. Detailed statutes are prima facie difficult to interpret based on their length, difficulty to navigate where multiple Acts are referenced, as well as when they are amended too often to keep track of. Whilst this paper has provided a brief overview of the empirical evidence that suggests the overwhelming complexity of federal legislative instruments, there has been little analysis of this in legal scholarship.^[22] Quantitative measures of legal complexity do exist, and in order to provide commentary on the reasons for this proliferation as well as potential solutions to limit this proliferation, further study that captures the true extent of legal complexity in terms of language, structure, length and interpretation is necessary.^[23]

II THE RULE OF LAW PROBLEM

A moralist conception of the rule of law, which characterises the universally-appealing concept as the distinguishing factor between democracy and despotism,^[24] makes it difficult to escape the essential requirement of coherence and knowability for a healthy legal system.^[25] Pragmatically, if the people who are supposed to be bound by the law do not know what the law is, they are less likely to follow it.^[26] Additionally, the executive branch must be capable of knowing the law in order to enable their function, which is the implementation and enforcement of the law. In this way, the law aims not to be a tool of coercion or brute force, but rather to respect the dignity and agency of the legal subject.^[27] Thus, the Australian constitutional system, which is in theory an instrument framed in accordance with the rule of law,^[28] aims to treat all individuals as autonomous agents who are capable of choosing whether or not to obey the law.^[29] Clearly, the legislative practice described above fails to adhere to the central requirement or knowability, especially if the rapid proliferation and increasing complexity of statutes prevents ordinary Australians from understanding their rights and obligations.^[30] This is not to suggest that there is a formula that must be followed in order to make statutes more knowable,^[31] but rather to point out the incompatibility between traditional rule of law conceptions accepted blindly in Australia, and the reality of the Australian Parliament’s legislative practices.

III PUBLIC LAW DOCTRINE: SOFT LAW AND ACCOMODATING THE ‘AGE OF STATUTES’

The question must then be asked: how can this rule of law problem be addressed? Edward Rubin provided an eloquent explanation as to why it is not necessary that the legislative practices described above constitute repudiation of the rule of law. ^[32] His fundamental argument suggests that the assumption that the public ought to be able to discern their legal position purely from reading the legislative text is antiquated and untenable in the modern administrative state.^[33] As Sir Christopher Jenkins states below:

A Bill’s sole reason for existence is to change the law... A consequence of this unique function is that it cannot set about communicating with the reader in the same way in which other forms of writing do... To do so would create risks of doubts and ambiguities that would fuel litigation.

Since legislation is not generally drafted with readability in mind, Rubin proposes that there is evidently a difference between statutes that have the primary purpose of regulating the public, i.e. the criminal law, and those which seek to create new executive agencies, confer different powers on new agencies, or allocate resources within the federal government.

This distinction, as well as the necessity of the communicative role played by the executive, is plainly applicable when analysing the ‘Income Tax Assessment Act’, an Act cited above as an example of lengthy, complex and unintelligible legislation.^[34] While the words of the text are voluminous and difficult to follow for the layperson, the Australian Taxation Office provides significant guidance to the public about the substance of the laws and how they apply to an individual’s circumstances. The Taxation Commissioner is also able to make legally binding rulings regarding the Taxation Office’s interpretation of the legislation.^[35] As such, these rulings operate as though they were the statutory basis on which the Taxation Office levies and collects tax.^[36] In this example, it may actually be possible to suggest that the legislation acts as an institutional practice by which the federal Government issues directives to the governmental or executive body, who then implement that policy. It is on this basis that Rubin makes the claim that if the legislature requires the layperson to understand the statute, it ought to encourage the executive bodies empowered by the legislation to ‘inform the populace of the applicable legal rules’.^[37] It could therefore be argued that since the primary purpose of drafting legislation has always been achieving effective and efficient change of the law, there is no rule of law problem posed by the voluminous and complex federal statutes in Australia.

However, whilst the Australian Taxation office example seems to represent a perfect importation of Rubin’s theory, it may in fact provide a sense of false hope. Ultimately, the way in which the America views legislation, as a manifestation of government policy,^[38] is fundamentally different to the Australian judiciary’s strict adherence to the tripartite separation of powers model.^[39] In Australia, expectations engendered by the executive branch in any form are considered a type of ‘soft law’ and are, therefore, largely not afforded any form of substantive legal protection where the executive guidance is ultra vires.^[40] This would mean that any statement made by an executive body that interprets the rights and obligations of an ordinary citizen under a specific piece of legislation would not provide a shield from punishment in the case that the interpretation was deemed incorrect by a court. No specific doctrine of public law estoppel has emerged in Australia, mostly owing to the consideration that the courts must give to the impact of the enforcement of a government’s representations to an individual on the public at large.^[41] Moreover, unlike the United Kingdom and Canada,^[42] Australia has not endorsed a doctrine of legitimate expectations.^[43] A doctrine of legitimate expectations would enable the court to substantively enforce, at least to some extent, promissory executive directions if they were found to be ultra vires.^[44] The primary reason for Australia’s vehement repudiation of this doctrine stems from the fundamental constitutional idea that the executive is subordinate to statute law.^[45] In a constitutional system that recognises parliamentary supremacy and the separation of powers, it is impermissible for the executive to encroach upon legislative functions, such as the creation of rights or entitlements. Moreover, the Constitution restricts the availability of remedies under s 75(v)^[46] to where there is an identifiable jurisdictional error, meaning that it is not permissible for a court to grant a remedy where technically the government’s exercise of power was legally legitimate.^[47]

In a similar way, deference, which is often defined as a respectful acknowledgment of the authority of another, continues to be rhetorically rejected by the Australian judiciary on the basis that it violates the separation of powers.^[48] The argument is often made that by deferring to the executive’s interpretation of a particular legislative text, the judiciary would be enabling judicial servility.^[49] Owing to this, under Australia’s current public law doctrine, it is extremely unclear whether there are any legal consequences for the federal Government if their actions represent a departure from a publicly stated policy.^[50] Seemingly, the political reason that, ‘breaking promises... is not a good look, especially when the government is the promisor’,^[51] is the only viable method of keeping government agencies accountable with respect to soft law. Applying this to the example of the Australian Taxation Commissioner’s rulings explicated above, even though both the public and private rulings are directed to be treated as binding in the empowering statute, they are still a policy instrument which therefore must, constitutionally speaking, be departed from if the Commissioner or a court subsequently forms the opinion that they are inconsistent with the legislation.^[52] Therefore, Rubin’s framework, which asserts the necessity of soft law instruments to explain legislation, is fundamentally inapplicable here in Australia; quasi-legislative executive guidance sits outside the accountability mechanisms encoded within the strict separation of judicial power from legislative and executive power.^[53]

To address the rule of law problem, it might be necessary to update our constitutional thinking to ensure that it represents the twenty first century role of government and its obligations to its citizens.^[54]

IV CASE STUDY: MEDICARE, AN INCOMPREHNSIBLE MESS?

Adding to Lisa Burton Crawford’s preliminary research about the growing complexity of federal legislation, I will now present an example, analysing the overly complex legislative scheme that governs the implementation and monitoring of Medicare in Australia.

Medicare Australia is the national health insurance scheme, responsible for subsidising the cost of most medical and allied health services.^[55] It provides free hospital services for public patients through the Australian Health Care Agreements with the States, subsidises private patients for hospital services, as well as provides benefits for out-of-hospital medical services such as consultations with General Practitioners or Specialists. Before the current Medicare benefits system can be understood, it might be helpful to outline the convoluted history of the enactment of the scheme. Following general public dissatisfaction with a voluntary health insurance scheme, the Whitlam Labor Government introduced the Medibank scheme through the enactment of the Health Insurance Act 1973 (Cth) (‘Health Insurance Act’) and the Health Insurance Commission Act 1973 (Cth).^[56] At the time, according to the Second Reading Speech of the Health Insurance Bill, the purpose of Medibank was to deliver the most, ‘equitable and efficient means of providing health insurance coverage for all Australians... equitable distribution of costs, and an administratively simple system to manage’. However, following the dismissal of the Whitlam Government on 11 November 1975, the Fraser Government’s Medibank Review Committee reconstructed the entire system by increasing the levy, declaring the hospital agreements with the states invalid, and allowing the Health Insurance Commission to enter the private health insurance business.^[57] These changes were largely rejected by the Hawke Labor Government, and through the passage of the Health Legislation Amendment Act 1983 (Cth), which amended the ‘Health Insurance Act’, the National Health Act 1953 (Cth) and the Health Insurance Commission Act 1973 (Cth), Australia mostly reverted back to the original Medibank model.^[58] Against this history of confusion and disagreement over the basic structure of the scheme, it is not unsurprising that understanding the current Medicare legislative scheme has been derisively referred to as, ‘wading through molasses’.^[59]

The federal Minister for Health has overall responsibility for the Medicare system, whilst the functions and powers to administer Medicare in Australia are laid out in the Human Services (Medicare) Act 1973 (Cth) (‘Human Services (Medicare) Act’). For the day-to-day running of the scheme, Part IIA of the ‘Human Services (Medicare) Act’ establishes the statutory office of the Chief Executive Medicare. The role of the Chief Executive includes ensuring service delivery and the payment of Medicare benefits, Medicare functions including the investigation of over-servicing claims,^[60] and even functions conferred by other Acts.^[61] The Medicare functions for investigation of fraud are shared with the Professional Services Review, an Agency within the federal Health Portfolio.^[62] Essentially, this complex network of interrelated legislation coexists and provides the foundation for the administration of the Medicare Benefits Schedule.^[63]

Turning to how the system actually functions, Medicare operates by paying a specified benefit (in the form of a rebate) for a health or medical service for which a doctor has submitted a claim, referencing item codes in the Medicare Benefits Schedule. The level of benefit is calculated as a percentage of the mandated schedule fee for the service, and varies depending on the setting in which the service was performed.^[64] This schedule of fees and its applicability to new services and treatments are assessed by the Medical Services Advisory Committee, an independent, non-statutory committee that was established by the Australian Government Minister for Health in 1998.^[65] Further, in 2015 the Minister for Health announced the establishment of a Medicare Benefits Schedule Review Taskforce to ensure that the services listed on the schedule concurred with current clinical opinion, indicating that a number of the billing item codes would be updated or removed.^[66] Despite the fact that there is no official federal Curriculum that educates doctors on the functioning of this billing system, individual medical practitioners are held personally responsible for their billing practices. Thus, doctors who wish to take part in the Medicare system must be able to independently form a coherent and accurate view of their obligations under this web of legislation to avoid criminal sanctions and civil penalties.^[67] As is hopefully being made clear, there are a large number of statutes that inform the billing procedures and rules that individual practitioners must follow, as well as a confusing system of regulation that enforces these rules. Without the law being made knowable to the healthcare professionals, it may be possible to characterise this legislative scheme as indicative of an ‘unhealthy’ legal system.^[68]

The confusing nature of the scheme above is heightened when considering the plethora of undefined or non-intuitively defined terms that doctors must interpret from the legislation. This is best demonstrated by the seeming disconnect between the clinical skill set of healthcare practitioners and the administrative approach of Medicare.^[69] In the original Medibank scheme, whilst majority of the services included described things performed by medical practitioners and dentists, a small number of optometry services were included. These were all described as relating to ‘medical conditions’.^[70] However, under the ‘Health Insurance Act’, medical, dental and only thirty two optometry services were grouped under the term ‘professional services’,^[71] with no real explanation as to why there was a shift in language, and why some optometry services were now excluded. A ‘professional service’ is defined as being a clinically relevant service,^[72] however, the interpretation of what constitutes a clinically relevant professional service is fraught.^[73] Whilst the phrase might prima facie enable medical practitioners to exercise appropriate clinical discretion on a case by case basis when deciding what procedures are necessary and what billing item codes are applicable,^[74] this is not the reality. A decision as to what service is appropriate for an individual patient requires the balancing of a number of clinical and non-clinical factors, such as the perceived risk of subsequent litigation.^[75] Meanwhile, the Medicare Benefits Schedule, oblivious to this reality, does not include any diagnostic information that would aid a healthcare professional in choosing which item code best describes the clinical relevance of the procedure performed. This confusion has been recognised by the judiciary, which has not yet reached a consensus on what ought to be included in a ‘professional service’.^[76] It must also be noted that there is limited case law in this particular area, resulting in the continuation of these ambiguities. This confusing legislative definition that has a limited practical applicability is just one example of how the legislative trajectory discussed above tangibly affects the understandability of important legislative schemes. As is plainly evident, the cleavage between the administrative approach utilised by the legislature when constructing the Medicare scheme, and the practical day-to-day reality of healthcare actually impacts the doctor’s item code choice for billing, and therefore their compliance with the law.

V IS DEFERENCE THE SOLUTION?

If it is accepted that the Medicare legislative scheme is incomprehensible, and that this difficulty to understand the legislation has very real consequences for medical practitioners and healthcare professionals, the question must be asked: what can be done to address this? From Rubin’s perspective – legislative texts should not be expected to the work of making the law knowable – executive direction in the form of a departmental compilation and interpretation of the numerous legislative instruments that are encompassed by Medicare would rectify the complexity of the legislation. Under this model, the Minister for Health, the Chief Executive Medicare and the Department of Human Services must therefore make use of, ‘... announcements, educational programs, advice and interpretations,’ in order to alert and educate doctors and other practitioners about their obligations when billing.^[77] The Department of Human Services has already created and implemented a soft law instrument to this effect, referring confused healthcare professionals to an online resource called the Medicare Benefits Schedule Online (MBS Online). It specifically condenses the regulations made under the ‘Health Insurance Act’ and the Tables,^[78] to provide an up to date catalogue of billing item codes, explanatory notes and executive commentary about the use of each item code. This service was developed in consultation with the Australian Medical Association in order to more clearly bridge the gap between the clinical realities of healthcare and the administrative mindset of the legislators. However, as explained above, to suggest that this online service provides a more usable form of the law is untenable in Australia. As Megarry would argue, for many doctors, the MBS Online would appear as having the practical status of legislation in the absence of any actual legal status, leading to a doctors’ continued uncertainty when billing.^[79] As with any other piece of soft law, when the interpretation and advice provided in the MBS Online is ultra vires, the Australian public law doctrine in its current form has no remedial recourse for those affected, and is thus ill-equipped to enforce government accountability.^[80]

It is frequently argued that Australian administrative law does not have, and should not be able to enforce a doctrine of deference.^[81] However, many anti-deference proponents cite Corporation of the City of Enfield v Development Assessment Commission (‘Enfield’)^[82] and, thus, cycle through the same outdated arguments about the strict separation of powers without critically analysing Australia’s position on deference. Putting the applicability of a doctrine of deference to one side, Skidmore-style deference might actually solve problems regarding ambiguous statutory provisions in the Medicare legislative scheme. For the purposes of this paper, when mentioning Skidmore-style deference I refer to an American principle of judicial review where the court may have respect for an executive body’s interpretation of legislation (where the executive body is responsible for administering the legislation), to the extent that the interpretation has the power to persuade.^[83] Turning back to a Medicare example, whilst the Medicare Benefits Schedule in the ‘Health Insurance Act’ states in TN 8.2 that the multiple operation rule applies to all items in the T8 group, it is ambiguous as to whether this rule applies to items from subgroup 12, including the item code 44359. To remedy this ambiguity, in conjunction with the AMA, this provision was interpreted in MBS Online to include item code 44359 in some circumstances, recognising the impracticality of excluding it when multiple surgeries were involved. The practical effect of the ambiguity here is that a reliance on the online interpretation will lead to the overbilling of item code 44359 as compared with the expected billing procedure outlined in the actual legislation, placing the medical practitioner in the position of being falsely accused of rorting, with no defence in legal proceedings, if they were to occur. This scenario is almost exactly what happened to Dr. Suman Sood in Sood v R,^[84] where her reliance on MBS Online’s interpretation of the legislation led to her over-billing for her services, and ultimately being convicted of criminal fraud. By adopting a Skidmore-style deference in this situation, instead of completely dismissing the practical relevance of the Department of Human Services’ interpretation, the court would instead have to have regard for what was written in MBS Online, bringing us closer to Rubin’s framework.

At certain points in time, doctrinal changes may seem overtly incongruent with the accepted role of the courts, but it would be a mistake to presume that this will always remain the case. With respect to deference, firstly, ‘Enfield’ only made obiter comments about Chevron deference, ^[85] suggesting that its adoption could result in a ‘greater abdication of judicial responsibility to interpret the law than seems wise’.^[86] In reality, the plurality actually suggested that there may be circumstances in which it is appropriate for a court to ‘give weight to’ the interpretation of the law by the executive, particularly where the decision-maker has considerable expertise.^[87] This highlights the fact that deference may take a range of forms other than Chevron deference in Australia, most prominently, Skidmore (epistemic) deference may still be able to play a role as it does not necessarily require the judicial servility warned about in the Enfield judgment.^[88] The United Kingdom, whose legal system is based on a loosely similar separation of powers model, has recognised the importance of giving ‘weight’ or respect to the views of the decision-maker based on their relative expertise in order to determine the proportionality of the decision.^[89] Though not the same, the controversial finding by the Australian High Court in Li,^[90] that where a decision-maker has provided a rational justification for their conclusion the court ought to defer to it, may in fact be conceptualised as deference. Though it would require a dramatic shift in the Australian understanding of the separation of powers and the nature of the judicial function for courts to adopt a doctrine of deference, the concept is seemingly not entirely as unfounded in Australian administrative law as commentators may suggest.^[91] As such, recognising deference as implicit in some aspects of Australia’s public law doctrine might assist in applying a standard of deference for MBS Online.

But, this should not be taken to mean that blindly acknowledging deference in Australia’s public law doctrine will totally resolve the legislative confusion outlined above. In fact, Skidmore-style deference is based on the assumption that the actors in the executive branch are experts.^[92] When looking at the Medicare scheme, and the executive actors responsible for enforcing it, it is possible to see that this may not be the case. The Department of Human Services’ interpretations of the highly inconsistent Medicare legislative scheme are not always legally correct, nor are they pragmatically the preferable option for most doctors. For example, in Australia’s gatekeeper model healthcare system it is generally agreed that a valid referral from a General Practitioner is necessary, however, there are some instances where the MBS Online is inconsistent with the ‘Health Insurance Act’ for almost no fathomable reason. Both the ‘Health Insurance Act’ and the Australian Health Agreements with States mention categorically that referring doctors must be named for the referral to be valid.^[93] However, the MBS Online interpretation of this legislative provision makes no comment as to whether a referral must be named, stating, ‘ A referral is a request to a specialist or a consultant physician for investigation’. The Medicare website goes even further when misinterpreting the legislation, specifically saying that referrals do not need to be named.^[94] This example hopefully makes clear my personal reservations for wholeheartedly overturning Australian judicial norms without further consideration. Deference might not actually remedy the problem of legislative instruments within a web of legislation being so complex that they are inconsistent with each other and impossible to interpret without several advanced legal degrees. I hopefully have argued clearly here that prior to turning to deference, perhaps other solutions that focus on addressing the proliferation of legislative complexity ought to be considered.

In conclusion, Rubin’s framework has challenged us to move beyond the outdated conception of legislation as the primary tool by which the public is made aware of their rights and obligations, and instead embrace soft law in the form of executive guidance. This is especially important in light of the legislative practices of the Australian Parliament, which have led to the increasing convolution of language in the labyrinthian statutory schemes that govern our actions as Australians. There is currently more legislation than ever before that is extremely long, which changes with remarkable frequency, and that is riddled with references to other pieces of legislation. I have presented the Medicare legislative scheme and its soft law counterpart MBS Online in order to provide an example of this. Whilst the executive does play an enormously important communicative role, the Australian public law doctrine fails to encompass any accountability mechanisms for soft law. However, by understanding the complexity of the Medicare legislative scheme this paper has explained the necessity of executive guidance that can be judicially ‘weighted’ if the advice is inconsistent with the legislative text. As such, I have suggested that adopting a Skidmore-style deference in Australia might be the first step towards rectifying this gap, but it should be treated with caution. Here, much work is needed to identify solutions that will fit the Australian constitutional framework.

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^[1] Lon Fuller, The Morality of Law (Yale University Press, 2^nd ed, 1969) 33-91; Colleen Murphy, ‘Lon Fuller and the Moral Value of the Rule of Law’ (2005) 24(3) Law and Philosophy 239-262, 243.

^[2] Lisa Burton Crawford, ‘The Rule of Law in the Age of Statutes’ (2020) 48(2) Federal Law Review 159, 167-170.

^[3] Ibid 161.

^[4] Edward Rubin, ‘Law and Legislation in the Administrative State’ (1989) 89(3) Columbia Law Review 369, 374.

^[5] Lisa Burton Crawford, The Rule of Law and the Australian Constitution (Federation Press, 2017) ch 7; Andrew Sykes, ‘The Rule of Law as an Australian Constitutional Promise’ (2002) 9(1) Murdoch University Electronic Journal of Law.

^[6] Margaret Faux, Jonathan Wardle and Jon Adams, ‘Medicare billing, Law and Practice: Complex, Incomprehensible and Beginning to Unravel’ (2019) 27(1) J Law Med 66, 70.

^[7] Thomas E Webb and Robert Geyer, ‘The Drafters’ Dance: The Complexity of Drafting Legislation and the Limitations of ‘Plain Language’ and ‘Good Law’ Initiatives’ (2020) 42(2) 129, 129-130.

^[8] Burton Crawford (n 2) 160.

^[9] See Burton Crawford (n 2) 162-165 for a more detailed summary of the legislative practices of the federal Government.

^[10] See Australian Constitution s 59 to view the power the Governor General has to give Royal Assent to Bills on behalf of the Queen.

^[11] ‘Parliament of Australia, Scrutiny of COVID-19 Instruments’, Parliament of Australia (Web Page, 26 November 2020) <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation/Scrutiny_of_COVID-19_instruments>.

^[12] Burton Crawford (n 2) 162-163.

^[13] The legal impermissibility of allowing states to retain power based on the fact that this power was historically utilised by the states was all but ensured by the repudiation of the state’s rights doctrine in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129, 133.

^[14] Webb and Geyer (n 7) 140.

^[15] Lisa Burton Crawford, ‘Between a Rock and a Hard Place: Executive Guidance in the Administrative State’ in Janina Boughey and Lisa Burton Crawford (eds), Interpreting Executive Power (Federation Press, 2020) ch 2, 8.

^[16] ‘Reducing Complexity in Legislation’ (Document Release, No. 2.1, June 2016, Australian Government Office of Parliamentary Counsel) 2 (‘Reducing Complexity in Legislation’).

^[17] Ibid.

^[18] Ibid 136.

^[19] See Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 for an example of this confusion.

^[20] Burton Crawford (n 2) 164.

^[21] Paul Yowell, ‘Legislation, Common Law and the Virtue of Clarity’ in Richard Ekins (ed), Modern Challenges to the Rule of Law (LexisNexis NZ, 2011) 101, 108.

^[22] Andres Kütt and Laura Kask, ‘Measuring Complexity of Legislation: A Systems Engineering Approach’ (2020) 22(5) Advances in Intelligent Systems and Computing 75, 77.

^[23] Webb and Geyer (n 7).

^[24] Fuller (n 1).

^[25] Ross Grantham and Darryn Jensen, ‘Coherence in the Age of Statutes’ [2016] MonashULawRw 12; (2016) 42(2) Monash University Law Review 360, 363.

^[26] Burton Crawford (n 2) 160.

^[27] Fuller (n 1) 33-91.

^[28] Dixon J in Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1; Sykes (n 5).

^[29] Burton Crawford (n 2); Sykes (n 5).

^[30] Burton Crawford (n 15) 11-12.

^[31] Fuller (n 1).

^[32] Rubin (n 4).

^[33] Rubin in Burton Crawford (n 2), 171-172.

^[34] Burton Crawford (n 2) 174-175.

^[35] Taxation Administration Act 1953 (Cth) sch 1 ch 5 div 358-359.

^[36] Bellinz v Commissioner of Taxation [1998] FCA 615; (1998) 84 FCR 154, 169.

^[37] Rubin (n 4) 405-406.

^[38] Ibid 372.

^[39] Greg Weeks, ’Soft Law and Public Liability: Beyond the Separation of Powers?’ [2018] AdelLawRw 12; (2018) 39(2) Adelaide Law Review 303, 318.

^[40] Ibid 322.

^[41] Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook, 2016) 249.

^[42] Sas Ansari and Lorne Sossin, ‘Legitimate Expectations in Canada: Soft Law and Tax Administration’ in Matthew Groves and Greg Weeks (eds), Legitimate Expectations in the Common Law World (Hart Publishing, 2017) 293.

^[43] The High Court has continued to vehemently reject the existence of this doctrine as seen in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 10 [28].

^[44] Weeks (n 39) 330.

^[45] Burton Crawford (n 15) 15.

^[46] Australian Constitution, s 75(v).

^[47] Burton Crawford (n 15) 21.

^[48] Stephen Gageler, ‘Deference’ (2015) 22(1) Australian Journal of Administrative Law 151, 151.

^[49] City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135.

^[50] Burton Crawford (n 15) 12.

^[51] Aronson, Groves and Weeks (n 41) 389.

^[52] Burton Crawford (n 2) 178.

^[53] Weeks (n 39).

^[54] McMillan in Weeks (n 39) 319.

^[55] Amanda Biggs, ‘Medicare a Quick Guide’ (Research Paper, Parliamentary Library, Parliament of Australia, 12 July 2016).

^[56] Ibid.

^[57] R. B. Scotton 2000 ‘Medibank: From Conception to Delivery and Beyond’ (2000) 173(5) Medical Journal of Australia, 911.

^[58] Biggs (n 55).

^[59] Margaret Faux, Jon Adams, Simran Dahiya and John Wardle, ‘Wading through Molasses: A Qualitative Examination of the Experiences, Perceptions, Attitudes and Knowledge of Australian Medical Practitioners Regarding Medical Billing’ (2020) 1(1), MedRxiv, 31.

^[60] Faux, Adams, Dahiya and Wardle (n 59); Human Services (Medicare) Act 1973 (Cth) pt IID, ss 5-6.

^[61] Health Insurance Act 1973 (Cth) (‘Health Insurance Act’) s 41G(a) outlines the other acts applicable, and these include: Health Insurance Act, National Health Act 1953 (Cth), Dental Benefits Act 2008 (Cth), Aged Care Act 1997 (Cth), Aged Care (Transitional Provisions) Act 1997 (Cth), Healthcare Identifiers Act 2010 (Cth), Private Health Insurance Act 2007 (Cth), Health and Other Services (Compensation) Act 1995 (Cth).

^[62] Health Insurance Act, pt VAA.

^[63] Biggs (n 55).

^[64] Health Insurance Act, pt II.

^[65] ‘About MSAC’, Medical Services Advisory Committee, (Web Page) <http://www.msac.gov.au/> Biggs (n 55).

^[66] ‘Medicare Benefits Schedule (MBS) Review’, The Department of Health (Web Page, 10 September 2019) <https://www1.health.gov.au/internet/main/publishing.nsf/Content/MBSReviewTaskforce>; Biggs (n 55).

^[67] Criminal Code Act 1995 (Cth); See Health Insurance Act, s 127 to view the penalty for a breach of s 20A.

^[68] Fuller (n 1).

^[69] Faux, Wardle and Adams (n 6) 70.

^[70] Faux, Wardle and Adams (n 6) 72.

^[71] Health Insurance Act; Medicare Benefits Schedule Category 1, Group A10 services.

^[72] Health Insurance Act, s 3.

^[73] Sood v R [2006] NSWCCA 114 (‘Sood’).

^[74] Health Practitioner Regulation National Law Act 2009 (Cth) s 2(f).

^[75] Faux, Wardle and Adams (n 6) 73.

^[76] Sood.

^[77] Rubin (n 4) 405.

^[78] Health Insurance Regulations 2018 (Cth); Health Insurance (General Medical Services Table) Regulations 2018 (Cth); Health Insurance (Pathology Services Table) Regulations 2018 (Cth); Health Insurance (Diagnostic Imaging Services Table) Regulations 2018 (Cth).

^[79] Robert Edgar Megarry, ‘Administrative Quasi-Legislation’ (1944) 60(1) Law Quarterly Review 125, 126.

^[80] Weeks (n 39) 311.

^[81] Janina Boughey, ‘Re-evaluating the Doctrine of Deference in Administrative Law’ (2019) 40(4) Federal Law Review 597.

^[82] [2000] HCA 5; (2000) 199 CLR 135 (‘Enfield’).

^[83] Skidmore v. Swift & Co., [1944] USSC 129; 323 U.S. 134, 140 (1944).

^[84] Sood; See also Nithianantha v Commonwealth of Australia [2018] FCA 2063.

^[85] Chevron v Natural Resources Defence Council [1984] USSC 140; 467 US 837 (1984).

^[86] Enfield, 152.

^[87] Boughey (n 81) 606.

^[88] Ibid 623.

^[89] R (SB) v Governors of Denbigh High School [2006] UKHL 15; [2007] 1 AC 100, 117 [34].

^[90] Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332.

^[91] Boughey (n 81) 622.

^[92] Burton Crawford (n 2) 181-182.

^[93] National Health Reform Agreement (NHRA) 2020, sch G r 19(b). To add to the confusion, this provision seemingly only applies when referring patients to a public hospital. In the private sector the advice is that the ‘usual referral law’ applies.

^[94] ‘Billing Medicare Australia’, Department of Human Services (Web Page) <http://www.serviceaustralia.gov.au/organisations/health-professionals/subjects/referring-and-requesting-medicare-services> .