Could the delegate revoke the decision of 20 April 2009?
58 The Secretary also relied on a ground in his notice of contention that the delegate had power on 26 May 2009 to "remake" her earlier decision to cancel Ms Hinde's approval by force of s 33(3) of the Interpretation Act. That provides:
"33 Exercise of powers and duties
(3) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument."
59 The Secretary argued that s 98(3) of the Health Act required that a decision to cancel an approval had to be given in an instrument, namely a notice in writing to the pharmacist. He pointed to the absence of any requirement for writing to give effect to a cancellation of an approval under s 98(1) or s 98(2) in support of the argument and to the different language of s 90(5). The latter provision required the Secretary, where he had made a decision, to serve notice in writing of a grant or rejection. He argued that s 33(3) should be given a purposive construction and be applied to the power in s 98(3) in the interest of good public administration. The power in s 33(3) was exercisable, he argued, independently of the validity of the earlier decision of 20 April 2009. The Secretary also argued that a cancellation under s 98(3) was "executed by notice in writing" so that the notice was an "instrument".
60 This argument fails. The power in s 98(3) is expressed as a power to cancel an approval in the exercise of a discretion. It is not in terms a discretion to make, grant or issue an instrument, being the notice. A notice of the cancellation in writing is required to be given to the pharmacist by s 98(3). The notice is made necessary, doubtless, so that the pharmacist will be informed of the fact that his or her approval has been cancelled. It is the mode prescribed by s 98(3) of communicating the making of the decision to exercise the discretion to cancel. Importantly, s 105AB(8A) of the Health Act gives a pharmacist a right to apply to the Tribunal for a review of a decision of the Secretary under s 98(3) to revoke an approval. That suggests that the relevant exercise of power under s 98(3) is one of cancellation not a power to make an instrument or issue a notice: Nicholson-Brown v Jennings (2007) 162 FCR 337 at 349 [27].
61 The notice in writing referred to in s 98(3) may be accepted to be an "instrument" for the purposes of s 33(3) of the Interpretation Act. The word "instrument"in that section is not limited to documents or things of a legislative character. The words of expansion in the first parentheses in s 33(3) would be otiose or surplusage if a narrow construction were given to "instrument" in s 33(3): Heslehurst v New Zealand (2002) 117 FCR 104 at 111 [25] and X v Australian Crime Commission (2004) 139 FCR 413 at 421 [30]-[31]. A notice issued under s 55 of the Life Insurance Act 1945 (Cth) requiring a life insurance company to show cause why its affairs should not be investigated has been held to be an "instrument" within what was then s 46(a) of the Interpretation Act: Associated Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161 at 181, 186. The expression "make, grant or issue" in s 33(3) itself are words more typically associated with instruments in the broader sense, such as agreements and licences: Chittick v Ackland (1984) 1 FCR 254 at 262-263, New South Wales v Corbett (2007) 230 CLR 606 at 615 [33]. Thus, s 33(3) may well authorise the Secretary or his delegate to "repeal, rescind, revoke, amend or vary" a notice in writing under s 98(3) because the latter is an "instrument".
62 However, the issue here is whether the discretionary power conferred on the Secretary by s 98(3) was to make, grant or issue an instrument, being a notice in writing, or to cancel Ms Hinde's approval. Sometimes a statutory power will be construed as a power to make or issue a notice in writing: as in Associated Dominions. In contrast, in other instances, the relevant provision will be construed as creating a power for the decision-maker to make a particular determination, while at the same time requiring him or her to give notice of it to a person affected: Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302-303; and Griffith University v Tang (2005) 221 CLR 99 at 126 [74], 128 [78]-[80], 130-131 [85]-[89].
63 The delegate was exercising a power to cancel an approval under s 98(3). The decision she made was, as expressed in terms in her letter of 20 April 2009, to "… hereby cancel the approval …". Critically, s 98(3) contained a grant of a discretionary power to cancel an approval, and a mechanism, namely, notice in writing, to convey to the person affected that the power had been exercised. The decision to exercise the power to cancel controlled the creation of a notice in writing reflecting the decision: Griffith University221 CLR at 130 [87]; Mayer 157 CLR at 302-303. Such a conclusion is consistent with the nature of a similar power under ss 98(1) and (2) and the characterisation of the pharmacist's right of review in s 105AB(8A) of "… a decision of the Secretary under [s 98(3)] … to revoke an approval". The latter right was not given to review a decision to make an instrument, or issue a notice in writing under s 98(3). Rather, s 105AB(8A) gave a right to seek review of the decision to cancel.
64 In any event, s 33(3) only operates if no contrary intention appears. The scheme of the Health Act demonstrates a contrary intention.
65 Even if the Secretary is satisfied that an approved pharmacist is not carrying on business as a pharmacist, or that the relevant premises are not accessible by members of the public for the purpose of receiving pharmaceutical benefits, the Secretary has a discretion not to cancel the approval, notwithstanding that, under s 90(3D), the Secretary must not grant approval if satisfied as to those matters. Thus, the Health Act contemplates the possibility of an approval of a pharmacist in respect of particular premises continuing even though the criteria for the grant of approval to the pharmacist for those premises are not satisfied.
66 Nevertheless, the contrast between s 98 and s 95 is instructive as to the application of s 33(3) of the Interpretation Act. Section 95(1) confers on the Minister a power, first, to suspend or revoke the approval of a pharmacist under s 90 and, secondly, at any time to remove the suspension or restore the approval. Unlike s 98, s 95 expressly confers on the Minister the power to remove a suspension or restore an approval. It would be curious if the drafter of the Health Act thought it was necessary, notwithstanding the presence of s 33(3) of the Interpretation Act, to confer an express power on the Minister but to leave a similar power on the part of the Secretary to be inferred by s 33(3). A sufficient contrary intention appears from those provisions to exclude the operation of s 33(3).
67 It follows that there was no power, in the present circumstances, for the delegate to remake or make any decision on or after 26 May 2009 that restored Ms Hinde's approval. Her approval remained cancelled by force of the valid decision made on 20 April 2009.