7 June 2023

Brief reprieve for Calvary as Supreme Court considers validity of laws allowing public hospital takeover

| Claire Fenwicke
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Calvary Public Hospital Bruce

The transition of Calvary Public Hospital Bruce into the hands of the Territory has been put on hold as judges consider the validity of the law enabling the takeover. Photo: Claire Fenwicke.

The Territory won’t be able to take any steps to transition Calvary Public Hospital Bruce into the government’s hands for at least another few days as a panel of justices considers the validity of the law enabling the takeover.

Calvary Health Care’s lawyer David Williams SC argued to a full bench of the ACT Supreme Court on Wednesday (7 June) the “extraordinary and unique piece of legislation” which legalised the compulsory acquisition of the site isn’t valid because it contains “burdensome and unjust terms”.

He submitted the legislation allowed for the entire acquisition of Calvary’s business rather than just the land on which the hospital sits and its assets.

“[The acquisition] is something over and above physical assets,” Mr Williams said.

“[The provisions of the Act] are talking about the transition of the business of Calvary [to the Territory].”

He also argued the entire legislation was invalid as it contained unjust terms.

“I submit if the other terms surrounding the acquisition are burdensome and unjust, the legislation does not achieve the standard to make it just,” Mr William said.

“The acquisition has to be on just terms.”

He submitted that powers given to the Territory under the Act during the pre-acquisition phase (before 3 July 2023) were “extraordinarily broad” and knew “no bounds” when it came to what the Territory could access.

“It’s essentially to do with anything in relation to managing the operation of the public hospital,” Mr Williams said.

“The transition is occurring from day one, not from the acquisition day.”

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Other arguments for unjust terms included the legislation requiring Calvary to “ensure” a safe and orderly transition, cooperation, and that everyone complied with the transition plan.

The regulations also outline that Calvary would have to oblige with other requests assisting the transition which could last up to 12 months. Mr Williams said it was an “onerous” burden.

Calvary also took issue with wording around compensation in the legislation, which allows for “reasonable compensation” rather than explicitly full compensation.

“There’s nothing in this Act that provides for Calvary to obtain just terms or reasonable compensation,” Mr Williams submitted.

“There’s some aspirational language [which says it could] but the regulation doesn’t allow for it.”

Compensation continued to be a sticking point when it came to what could be considered lost.

Mr Williams argued because the takeover was “hostile”, this added an element to the acquisition which couldn’t be covered by money.

“[This] is being done against [Calvary’s] will, and that is a burden over and above,” he said.

Chief Justice Lucy McCallum challenged this argument, saying Calvary as a whole was a corporation that couldn’t experience unfairness or “have feelings”.

“[The terms] can be objectively unfair, but that can be compensated with money,” she said.

“It can’t suffer hurt feelings; it can’t sing or dance.

“On that argument, you could never have just terms on a takeover [which a corporation considers] hostile.”

Mr Williams clarified that it was unjust that Calvary was expected to be involved with the transition long after the acquisition date, which added to the burden of the Territory “taking the castle”.

“They’ll be indebted in servitude to the future,” he said.

READ ALSO ‘It’d be a recipe for disaster’: health chief outlines reasons for quick Calvary Public transition as acquisition court date approaches

In response, ACT Solicitor-General Peter Garrison SC submitted the Territory was only acquiring the public hospital’s land and assets, and that the legislation’s provisions were “mechanical” to allow the effective operation of the hospital by its new owner.

He argued that the loss of Calvary’s business was a “natural consequence” and that it would be covered by just terms.

“Compensation will include the consequential loss of that business,” Mr Garrison said.

He submitted the compensation terms allowed for a “broader range of matters” than what might usually be required in the course of an acquisition.

Mr Garrison also argued any requests to be made of Calvary were just because they couldn’t be immediately imposed.

He said the regulations required the Territory to give “reasonable written notice”, and the onus was on them to “minimise interference” with the hospital’s operations.

The Territory’s written submissions challenged Calvary’s claims that regulations in the Act rendered it invalid.

“The attacks on the reasonableness and proportionality of the regulations represent an invitation for the Court to engage in judicial merits review,” it read.

“And there is no uncertainty that ought to result in the invalidity of a regulation on a proper application of the principles [argued].”

As for Calvary’s argument that the entire legislation was invalid if it contained unjust terms, the Territory rejected this claim.

“If any provision is found to be invalid insofar as it does not provide ‘just terms’, it ought to be severed from the balance of the Act,” it submitted.

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Chief Justice McCallum ruled that a pause on the transition would continue until at least Friday (9 June).

She said the full bench would only consider the validity of the Act and deliver that decision no later than Tuesday (13 June). Issues about specific regulations would continue after that.

Chief Justice McCallum requested the Territory investigate whether they could hold off on any transition plans until that date and to update her by midday tomorrow on whether she would need to make further orders.

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It’s all about religion, religion and religion. The Catholic church has no business running hospitals in 2023.

Yeah we want to kill babies and old people and they won’t let us, how dare they!! Also why should the northside have a toxic free functioning hospital when we don’t in the south?

Yeah agreed, they should also stop the second hand clothing stores, soup kitchens, old folks homes, councilling services, overseas aid services, temporary accommodation services, woman’s shelters and providing food coupons for individuals and families when needed and countless other service so our great Leader and government can take over 👍

Bob the impala8:51 am 12 Jun 23

noid, if you are aware of any problems with delivery those services in your second post, raise them as issues. They have zero to do with your desire to impose your minority view to the disadvantage of others. Abortion was not in any case the signal (let alone single) issue leading to the acquisition, so has no relevance here.

Well until they show full transparency for their reason any conclusion can be assumed and relevant. Especially when a hostile take over is conducted.

Bob you do realise my second post was sarcasm?

optimusmaximus7:25 pm 09 Jun 23

Another disgraceful act of bullying by CHS.

I would challenge the government to show that the resumption of land, whether this is by negotiation with the landholder or through a compulsory acquisition process, is “on just terms” and that it benefits the whole community. In this instance it means that the new hospital they intend to build and have ACT Health manage must provide a level of care that is as good as or better than Calvary. But I have to ask, how can ACT Health be trusted to manage this new facility when it is full of corruption and plagued by problems? I would ask the ACT government, how many times has the Canberra Hospital failed an accreditation or medical standards in the last five years.

In 2021 my contract as a professional scientist at the Canberra Hospital was terminated two thirds into a three year contract as a result of my speaking out about the Hospital’s longstanding toxic culture of bullying and intimidation, and its history of being unable to provide a proper and safe environment for its registrars, including a consistent lack of professional guidance, training and adequate resources. Although there are laws that afford whistle-blowers protections including anonymity, immunity/protection from liability, and protection against retaliation or victimisation by an employer, in the ACT they are limited in coverage and power, which has prevented any legal challenge that would otherwise have allowed me to seek redress.

As a result of investigations following my submission of a public disclosure statement, the professional body that represents my profession has withdrawn the Hospital’s accreditation status as a site for training its registrars. What this means is that it will no longer fund training for registrars at the Canberra Hospital. This is just more evidence that the Hospital is still going backwards.

Francesca Milano1:30 pm 08 Jun 23

Forget the religious element. That’s simply mirrors.

Forget the profit event. They do not generate ‘profits’, rather ‘operating surpluses’ which are put back into future services and staffing.

Think ‘efficiency’ and think about which entity runs a leaner and therefore more efficient service.

Think ‘unplanned readmissions’ and which entity has the best outcomes.

Think about a government that cannot get its own way by negotiation and therefore changes the law. Think democracy erosion.

Profit collected to pay lawyers to block sexual abuse survivor’s claims against the church.

Yeah we need that money to end pregnancies, euthanasia and gender reassignments all to improve the health of our society. Awesome 👍

Calvary want compensation for ‘lost business’ – this is an ostensibly charitable organisation delivering a public health care service- there should be no profits involved- this is a major part of the issue. Public funds should be going to deliver health care, not heading off to the Vatican.

If you cut a contract short illegally (unless you change the law hmmmm) then you need to pay compensation.

Bob the impala8:40 am 12 Jun 23

Contracts and law are not your areas of expertise, are they noid.

No query mark needed at the end of that sentence.

Bob you have no idea what my expertise so I guess you comment has no relevance 👍

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