Arakji v Pharmaceutical Services Federal Committee of Inquiry [2025] FCA 1420

1. Part VIII of the Act provides for the Committee. Section 113 provides as follows:

(1) The Minister may establish a committee, called the Pharmaceutical Services Federal Committee of Inquiry, which shall consist of the Secretary and 4 pharmacists appointed by the Minister.

(2) The Secretary may, from time to time, by writing signed by the Secretary, appoint an officer of the Department who is a medical practitioner or pharmacist to be a member of the Committee in his or her stead, and the person so appointed shall, until his or her appointment is revoked, be a member of the Committee.

1. Section 114 provides as follows in relation to the functions of the Committee:

The Pharmaceutical Services Federal Committee of Inquiry shall inquire into and report to the Minister or the Secretary on any matter referred to the Committee by the Minister or the Secretary in respect of or arising out of the services or conduct of approved pharmacists in connection with the supply of pharmaceutical benefits under Part VIII.

1. Section 119A provides as follows in relation to acting members of the Committee:

If the Minister becomes aware that a member of a Committee will be unable to attend a meeting or meetings of the Committee, the Minister may appoint a qualified person to act in the stead of that member at the meeting or meetings from which the member will be absent, and the person so appointed shall, while so acting, be deemed to be a member of the Committee.

1. Section 120 provides as follows in relation to the Chairperson:

(1) A Committee shall elect one of its members to be Chairperson of the Committee.

(2) In the event of the absence of the Chairperson of a Committee from a meeting of the Committee, the members present shall elect one of their number to preside at the meeting during the absence of the Chairperson, then the member so elected shall have and may exercise and perform, during the absence of the Chairperson, all the powers and functions of the Chairperson.

1. Section 120A deals with vacancies in Committees as follows:

The exercise or performance of the powers or functions of a Committee is not affected by reason only of there being a vacancy in the office of a member of the Committee.

1. Section 121 provides that the regulations may make provision for and in relation to the procedure of the Committee. Relevantly, reg 10 of the National Health Regulation 2016 (Cth) provides that a quorum at a meeting of the Committee is constituted by three members.
2. Section 124 deals with the determination of questions at meetings as follows:

(1) All questions before a meeting of a Committee shall be decided by a majority of votes.

(2) The Chairperson of a Committee shall have a deliberative vote only.

(3) A member shall not have a vote on a question before a Committee unless the member has been present for the whole of the time for which the Committee received evidence on the matter concerning which the question arose.

(4) In the event of an equality of votes on a question before a meeting of a Committee, the question shall be deemed to be unresolved and the Chairperson may direct that the question be reconsidered at a time and place fixed by the Chairperson.

1. Section 125 requires the Committee to notify an approved pharmacist whose conduct is the subject of a referral under s 114. Notice is to be given "of the time and place at which the Committee intends to hold an inquiry into the matter" (s 125(1)). The pharmacist so notified is to be given "an opportunity of examining witnesses, giving evidence and calling witnesses and of addressing the Committee" (s 125(4)).
2. Section 125(6) provides as follows:

For the purposes of this section, inquiry includes a reconsideration of a question by a Committee in pursuance of subsection 124(4) where that reconsideration involves the rehearing of evidence or the hearing of further evidence.

The combined effect of ss 124(4) and 125(6) is that the obligation to give notice of an "inquiry" extends to instances where there is "an equality of votes on a question before a meeting of the Committee" and the reconsideration of that question involves "the rehearing of evidence or the hearing of further evidence".

Can the Committee inquire into and report on the applicants with only four active members?

1. The applicants submit that there is a clear distinction between meetings of the Committee (at which only three members of the Committee are required to attend), and the holding of the inquiry into their conduct (for which they submit the Act does not fix a quorum). The applicants submit that all five members of the Committee must participate in the inquiry itself, relying on the general principle that where a statute creates a body and confers functions and powers to be exercised by appointed members and does not fix a quorum, the function cannot be performed nor the powers exercised by some of the members: Raiz v Director of Professional Services Review [2024] FCAFC 91; (2024) 304 FCR 600 at [83] (Raiz) (Goodman, O'Sullivan and McElwaine JJ). The applicants therefore submit that, while certain decisions may be made at meetings of the Committee by a subset of the Committee, all five members of the Committee are required to participate in the inquiry itself. The applicants submit that by proceeding other than in accordance with all five members of the Committee in the conduct of the inquiry, the Committee will be acting outside its jurisdiction.
2. I reject those submissions.
3. At the outset, I note that the decision of the Full Court in Raiz is of little assistance in construing Pt VIII of the Act. That case concerned the Professional Services Review Scheme established by the Health Insurance Act 1973 (Cth), under which individual committees are constituted on an ad hoc basis for the purpose of considering particular matters: see in particular ss 93 and 95 of the Health Insurance Act 1973 (Cth), set out in Raiz at [40]-[41]. By contrast, the Committee is a single standing committee charged with inquiring into all of the matters referred to it under s 114 of the Act. The Committee is not separately constituted for particular referrals. The detailed provisions of the two pieces of legislation are markedly different. In particular, as I explain below, the Act does fix a quorum, so that the principle stated in Raiz at [83] is not applicable to the present case.
4. The applicants' argument relies very heavily on the language in s 113 of the Act that the Committee "shall consist" of five members. However, the requirement that a body shall consist of a number of members does not in itself mean that its functions can only be performed when all of those members are present. Indeed, s 124(3) of the Act provides for the determination of questions where the Committee has received evidence in the absence of one or more of its members, which could only arise where a matter has been referred for inquiry under s 114. Section 124(3) expressly indicates that the Committee can lawfully perform its functions, including receiving evidence, when one of its members is not present, and provides that members who have not been present while evidence is received on a matter are not to vote on questions in relation to that matter. The existence of s 124(3) is directly contrary to the applicants' construction.
5. Further, the existence of provisions dealing with absences or vacancies makes it clear that the exercise of the Committee's powers and functions is not vitiated by the absence or non-participation of a member. Meetings are able to proceed in the absence of the Chairperson (s 120(2)), and while the Minister "may" appoint an acting member under s 119A when one of the members of the Committee will be absent from a meeting, the use of "may" indicates a discretion. Given that ss 120(2) and 119A contemplate that the Committee may discharge its functions in relation to a matter even if one of its members is not present, there is no reason for the Act to require all five members to be present for an "inquiry". In addition, while s 120A is not directly applicable to the present case, as a matter of construction it is also contrary to the implication sought to be drawn by the applicants from the language of s 113.
6. Further, the Act does not provide for a mutually exclusive dichotomy between a meeting and an inquiry in the manner contended for by the applicants. The Committee must meet to perform its functions, including by deliberating on the findings to be made after hearing the evidence, as s 124(3) expressly indicates. As a matter of ordinary language, the word "meeting" is apt to describe the members of the Committee assembling to hear evidence and receive submissions from an approved pharmacist who is the subject of one of its inquiries. Moreover, it is clear from s 124(4), when read with s 125(6), that a meeting of the Committee to consider a question is not distinct from an inquiry under s 125, because s 125(6) states that "inquiry" includes a reconsideration of a question by a Committee in pursuance of subs 124(4) where that reconsideration involves the rehearing of evidence or the hearing of further evidence. Subsection 124(4) is part of the section dealing with the determination of questions at meetings. As the Committee discharges its functions of inquiry at meetings, the quorum of three members stipulated by reg 10 provides a complete answer to the applicants' case.

1. The originating application is dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.