Freedom Pharmaceutical Pty Ltd v Minister for Health

Federal Court of Australia (Full Court)|2022-07-20|Before: Stewart JJ

The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The appellant, Freedom Pharmaceutical Pty Ltd, is the operator of a pharmacy known as TerryWhite Chemmart Blacktown located in the St Martins Village shopping centre in Blacktown, New South Wales. Those premises are approved premises for the supply of pharmaceutical benefits by the appellant under s 90 of the National Health Act 1953 (Cth). 2 The second respondent, Maggie Rouchdi, is the operator of a pharmacy known as XTREME Chemist Blacktown, located at St Martins Crescent, Blacktown. The pharmacy operates within the Blacktown Doctors and Medical Centre. The Medical Centre is in the Blacktown Mega Centre which shares car park access with the St Martins Village shopping centre. Ms Rouchdi's pharmacy is approximately 60m across the common car park from Freedom's pharmacy. 3 Freedom applied for judicial review of the decision of the Minister for Health, made on 18 November 2019, to approve Ms Rouchdi to supply pharmaceutical benefits at the premises in the Medical Centre. The Minister's decision was made pursuant to a personal discretionary power, conferred on the Minister by s 90A of the Act, to substitute a decision of the Secretary of the Department of Health to refuse the application of Ms Rouchdi for approval to supply pharmaceutical benefits at the premises with a decision to approve Ms Rouchdi to supply pharmaceutical benefit at the premises. 4 The Secretary's decision was made after a decision by the Australian Community Pharmacy Authority to recommend that the Secretary not approve Ms Rouchdi's application because it did not meet the requirements of the National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Cth). Those were the applicable rules made under s 99L of the Act. 5 The further amended originating application in the proceeding below raised seven grounds of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). Ms Rouchdi, who was the beneficiary of the Minister's decision, filed a submitting notice and did not otherwise participate in the proceeding. The Minister appeared to defend his decision. The primary judge dismissed each of the seven grounds of review: Freedom Pharmaceutical Pty Ltd v Minister for Health [2021] FCA 213 (J). 6 Freedom now appeals from the decision of the primary judge on two grounds which may be summarised as: (1) the primary judge erred in law by finding that the Minister's decision was not legally unreasonable; and (2) the primary judge erred in law by finding that the procedures required by law were followed in the Minister's assessment of Ms Rouchdi's application under s 90A of the Act.

The legislative scheme 7 The relevant provisions of the Act for the purpose of deciding the appeal are the following: 90 Approved pharmacists (1) Subject to this section, the Secretary may, upon application by a pharmacist for approval to supply pharmaceutical benefits at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at those premises. … (3A) Subject to subsections (3AA) and (3AE), an application under this section must be referred to the Authority. … (3B) An approval may be granted under this section in respect of an application that has been referred to the Authority under subsection (3A) or (3AF) only if the Authority has recommended the grant of the approval, but the Secretary may refuse to grant an approval even if the grant has been recommended by the Authority. … 90A Minister may substitute decision approving pharmacist (1) This section applies in relation to a decision of the Secretary under section 90 rejecting an application by a pharmacist for approval to supply pharmaceutical benefits at particular premises, if: (a) the application was made on or after 1 July 2006; and (b) the decision was made on the basis that the application did not comply with the requirements of the relevant rules determined by the Minister under section 99L. (2) The Minister may substitute for the Secretary's decision a decision approving the pharmacist for the purpose of supplying pharmaceutical benefits at the particular premises if the Minister is satisfied that: (a) the Secretary's decision will result in a community being left without reasonable access to pharmaceutical benefits supplied by an approved pharmacist; and (b) it is in the public interest to approve the pharmacist. (3) For the purposes of subsection (2): community means a group of people that, in the opinion of the Minister, constitutes a community. reasonable access, in relation to pharmaceutical benefits supplied by an approved pharmacist, means access that, in the opinion of the Minister, is reasonable. (4) The power under subsection (2) may only be exercised: (a) on request by the pharmacist made under section 90B; and (b) by the Minister personally. (5) Subject to subsection 90B(5), the Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of the Secretary's decision. … (8) For the purposes of this section (other than subsection (7)): (a) a reference to a decision of the Secretary includes a reference to a decision of the Secretary that has been affirmed by a decision of the Administrative Appeals Tribunal or an order of a federal court; and (b) a reference to a decision of the Administrative Appeals Tribunal includes a reference to a decision of the Administrative Appeals Tribunal that has been affirmed by an order of a federal court. … 90D Provision of further information (1) For the purpose of deciding whether to consider a request made by a pharmacist under subsection 90B(1) or whether to exercise the power under subsection 90A(2) in relation to such a request: (a) the Minister may, by notice in writing given to the pharmacist, require the pharmacist to provide such further information, or produce such further documents, to the Minister as the Minister specifies, within the period specified in the notice; and (b) the Minister may give a notice in writing to any other person: (i) advising the person of the request; and (ii) inviting the person to provide comments on, or information or documents relevant to, the request within the period specified in the notice. (2) If: (a) the Minister gives a notice to a pharmacist under paragraph (1)(a); and (b) the pharmacist does not provide the information specified in the notice or produce the documents specified in the notice within the period specified in the notice; the Minister may treat the request as having been withdrawn. (3) If the Minister gives a notice to a person under paragraph (1)(b), the Minister: (a) is only required to consider comments, information or documents provided by the person during the period specified in the notice; and (b) if the person does not provide any comments, information or documents within that period - is not required to take any further action to obtain such comments, information or documents. 8 In summary, a pharmacist can make an application to the Secretary to approve the pharmacist for the purpose of supplying pharmaceutical benefits at particular premises: s 90(1). Such an application must be referred to the Authority: s 90(3A). An approval may be granted by the Secretary only if the Authority has recommended the grant of the approval, but the Secretary may refuse to grant an approval even if the grant has been recommended by the Authority: s 90(3B). 9 If the Secretary rejects an application on the basis that the application did not comply with the requirements of the relevant rules determined by the Minister under s 99L, the Minister may substitute the Secretary's decision with a decision approving the pharmacist for the purpose of supplying pharmaceutical benefits at a particular premises if the Minister is satisfied of the two requirements in s 90A(2). Those are that the Secretary's decision will result in a community being left without reasonable access to pharmaceutical benefits supplied by an approved pharmacist, and that it is in the public interest to approve the pharmacist. The power under s 90A(2) may only be exercised on request by the pharmacist and by the Minister personally: s 90A(4). 10 A request by a pharmacist to the Minister to exercise the power under s 90A(2) is made under s 90B(1). The Minister may determine the form in which a request must be made: s 90B(2). Within three months after receiving a request, the Minister must personally decide whether to consider the request: s 90B(4). If the Minister decides to consider the request, they must within three months after making that decision personally decide whether to exercise the power under s 90A(2): s 90B(5). 11 For the purpose of deciding whether to consider a request made by a pharmacist under s 90B(1) or whether to exercise the power under s 90A(2), the Minister "may" give a notice in writing to "any other person" advising the person of the request and "inviting the person to provide comments on, or information or documents relevant to, the request within the period specified in the notice": s 90D(1)(b). If the Minister gives such a notice, the Minister is only required to consider comments, information or documents provided by the person during the period specified in the notice: s 90D(3). 12 By s 99K of the Act, it is the function of the Authority to consider applications made under s 90 of the Act and to make a recommendation to the Secretary as to whether or not the applicant should be approved in respect of particular premises, and under what conditions. 13 The history and purpose of the legislative scheme for the approval of pharmacies is explained by French J in Pharmacy Restructuring Authority v Chatfield [1993] FCA 495; 43 FCR 418 at 433-434. His Honour's explanation includes the following: The legislative scheme established by the 1990 amendments to the National Health Act reflected the terms of an agreement between the Minister and the Pharmacy Guild of Australia which was reduced to writing on 6 December 1990… The background to the agreement is described in the Report of the Senate Standing Committee on Community Affairs published in May 1992 under the title "Implementation of Commonwealth Pharmaceutical Restructuring Measures"… The objectives of the restructuring, according to the Senate Committee, were: To rationalise the number and distribution of pharmacies throughout Australia through the offer of financial incentives to voluntarily close or amalgamate existing pharmacies, the payment of an essential pharmacy allowance to pharmacists operating in remote areas and the imposition of strict criteria for new approvals to dispense pharmaceutical benefits. 14 After setting out some portions of the Minister's second reading speech, his Honour continued: It may be concluded from the Minister's speech that the objects of the legislative scheme established by the 1990 amendments included the reduction of the number of existing pharmacies and the regulation of the approval of new pharmacies. The guidelines determined by the Minister and the terms of cl 8.3 of the agreement with the Pharmacy Guild indicate that new approvals would have to be justified by reference to community needs. 15 As explained by Jacobson J in Kong v Minister for Health [2014] FCAFC 149; 227 FCR 215 at [16] and [24], ss 90A - 90E of the Act were introduced into Pt VII by the Health Legislation Amendment (Pharmacy Location Arrangements) Act 2006 (Cth). 16 The Rules introduced in 2018 relevantly provide that in respect of a new pharmacy in a small shopping centre, it is a requirement of approval by the Secretary that the premises: (a) are in a small shopping Centre (as defined), and (b) are at least 500 m, in a straight line, from the nearest approved premises, other than approved premises in a large shopping Centre or private hospital, and (c) there are no approved premises in the small shopping Centre: Rules, Sch 1, Pt 2, item 133.

Background 17 The primary judge summarised the background to the matter, from which the following is drawn. 18 In January 2019, Ms Rouchdi applied to the Department for approval under s 90 of the Act to supply pharmaceutical benefits from the Medical Centre premises on the basis that the premises met the requirements set out in item 133 in Pt 2 of Sch 1 of the Rules. 19 In April 2019, the Authority wrote to advise Ms Rouchdi that it had recommended that her s 90 application not be approved on the basis that the Authority was not satisfied that the application met the requirements of item 133. Later that month, a delegate of the Secretary wrote to Ms Rouchdi advising her that, given the Authority's recommendation, her s 90 application had been rejected. 20 Ms Rouchdi then wrote to the Department applying under s 90B(1) of the Act for the Minister to exercise his discretionary power under s 90A(2) to approve the supply of pharmaceutical benefits at the premises notwithstanding the refusal by the Secretary. 21 On 23 August 2019, a delegate of the Minister wrote to Ms Rouchdi to inform her that the Minister had decided to consider her s 90B application. On the same day, the delegate also wrote to Freedom, inviting submissions going to the two criteria set out in s 90A(2). Relevantly, the letter included the following: I am writing to advise you that a request has been made by a pharmacist to the Minister for Health, the Hon Greg Hunt MP (the Minister), for the exercise of the Minister's discretionary power to approve the supply of Pharmaceutical Benefits Scheme (PBS) medicines at F1, F2, F3 St Martins Crescent, Black Town Mega Centre, Blacktown NSW 2148 (the proposed premises). … Where an application is rejected because it failed to satisfy the requirements of the Rules the pharmacist may request that the Minister apply his discretionary power to approve the supply of PBS medicines from the proposed premises. The Minister may approve a pharmacist if he is satisfied that the following criteria are met: a) the decision to reject the previous application (under the Rules) will result in a community being left without reasonable access to PBS medicines supplied by an approved pharmacist; and b) it is in the public interest to approve the pharmacist. … Opportunity to comment As delegate of the Minister for Health, under subsection 90D(l)(b) of the National Health Act 1953, I invite you to submit comments, or information or documents relating to the request. If you would like to make a submission, it should be limited to the two criteria outlined earlier in this letter. … 22 On 27 August 2019, Freedom responded to the Secretary's invitation, making submissions as to why the Minister should not exercise his discretion in Ms Rouchdi's favour. A submission opposing Ms Rouchdi's s 90B application was also made by another pharmacist. 23 Following those submissions, there was an exchange between the delegate and representatives of Ms Rouchdi, during which Ms Rouchdi supplied additional information concerning the application. 24 On 26 November 2019, the Minister issued to Ms Rouchdi his decision to approve her s 90 application, and on the following day Freedom was informed of that decision. At the request of Freedom, the Minister subsequently furnished reasons for his decision.

The Minister's reasons 25 After setting out the relevant background to the s 90 and s 90B applications, the Minister made findings of fact and gave reasons as follows: Findings on material questions of fact 18. I make the following findings of material facts. • I found that, based on the material before me, the proposed pharmacy is located in the Medical Centre, in the Blacktown Mega Centre in the Sydney suburb of Blacktown. • I found that, based on the material before me, the proposed pharmacy is approximately 1.5km south-east of the Blacktown City Centre and 16km west of Parramatta. • I found that, based on the material before me, the Blacktown Mega Centre is a bulky goods centre, which, in addition to the Medical Centre and proposed pharmacy, includes BCF, Barbeques Galore, Harvey Norman, Baby Bunting, Bing Lee, Pet Barn, McDonalds and KFC. • I found that, based on the material before me, the Medical Centre is open from 8am to 5pm weekdays, 8am to 1 pm Saturday and closed on Sundays (a total of 50 hours a week). • I found that, based on the material before me, for patients of the Medical Centre in need of PBS medicines, the nearest approved pharmacy, TerryWhite Chemmart Blacktown, is in the adjacent St Martins Village shopping centre which is approximately 60m, from the Medical Centre. A concrete footpath provides access from the Blacktown Mega Centre to St Martins Village, crossing one driveway. • I found that, based on the material before me, St Martins Village shopping centre is a neighbourhood centre, which, in addition to TerryWhite Chemmart, contains a medical centre, coffee shop, bakery, fruit and vegetable store, real estate agent and take away food outlets. • I found that, based on the material before me, TerryWhite Chemmart Blacktown, which opened 12 March 2019, is currently open from 8am to 11pm weekdays and from 9am to 8pm weekends (a total of 97 hours a week). • I found that, based on the material before me, in addition to TerryWhite Chemmart Blacktown, there are a further 14 approved pharmacies within an approximate 2km radius of the proposed pharmacy. These approved pharmacies are situated in the suburbs of Blacktown, Prospect and Seven Hills. A further four approved pharmacies are located within between 2km and 3.5km radius of the proposed pharmacy. Reasons for decision 19. In making my decision, I was satisfied that the criteria for the exercise of my discretion are met. 20. Specifically, I was satisfied that: • The Secretary's decision to not approve the Applicant would result in a community being left without reasonable access to PBS medicines supplied by an approved pharmacist (s 90A(2)(a) of the Act); and • It was in the public interest to approve the Applicant (s 90A(2)(b) of the Act). Whether a community will be left without reasonable access Community 21. Having regard to the information and submissions provided by the Department, the Applicant and Mr Hanna, I formed the view that there is a relevant community that would be affected by the proposed pharmacy not being approved. That community is the group of people who attend the Medical Centre. 22. I reached this view on the basis that: • The proposed pharmacy is located in the Medical Centre and its patients are likely to be regular users of the proposed pharmacy. • The Medical Centre has the equivalent of four full-time medical practitioners and is expected to reach eight within the next 12 to 18 months. Reasonable access to PBS medicines 23. Whether a community has reasonable access to PBS medicines will depend on the particular facts and circumstances of the proposal under my consideration. Central to my consideration was the particular community that I have identified. I found that the relevant community is the group of people who reside in the immediate area surrounding the proposed pharmacy and patients who attend the Medical Centre. 24. I considered whether the decision not to grant approval to the Applicant would leave that community without reasonable access to PBS medicines. 25. I acknowledged that an approval decision would have resulted in two approved pharmacies operating closely to each other based on my findings of material fact that: • Mr Hanna's TerryWhite Chemmart is less than 60m from the Blacktown Doctors and Medical Centre, • residents of the community have access to a further 14 approved pharmacies located within an approximate 2km radius of the proposed pharmacy, and • that granting approval would result in two approved pharmacies operating within less than one hundred metres of each other. 26. However, I weighed these points against the fact that, were the proposed pharmacy approved, members of the community would not need to leave the Medical Centre to obtain PBS medicines. 27. In all of the circumstances, I found that a decision not to approve the proposed pharmacy would result in the community being left without reasonable access to PBS medicines. Public interest 28. In making my decision, I took into account the fact that granting approval would lead to two approved pharmacies operating within less than one hundred metres of one another, the fact that there were 14 within an approximate 2km radius of the proposed pharmacy, in the suburbs of Blacktown, Prospect and Seven Hills. 29. I found that there is a public interest in the community having access to PBS medicines in the proposed location which is co-located with the medical centre from which members of the community receive medical attention, I considered that the pharmacy is in a location that will allow convenient access to PBS medicines for the community. 30. Current patients of the Medical Centre who require access to PBS medicines from an existing approved pharmacy need to leave the Medical Centre and travel a distance of approximately 60m to the nearest pharmacy, or further to access an alternative approved pharmacy. 31. On balance, I found that it was in the public interest, under subsection 90A(2)(b), to approve the Applicant.

Ground 1 26 In respect of review ground 1, which corresponds with appeal ground 1, the primary judge reasoned as follows. 27 His Honour rejected Freedom's submission that the purpose of the discretion under s 90A is to address anomalies or unforeseen consequences arising from a strict application of the Rules. His Honour reasoned that a premise of s 90A is that "it involves stepping outside of the regime implemented by the Rules". Furthermore, it is apparent that the legislature intended to give the Minister a very broad discretion with which to determine applications. His Honour referred to Kong (at [126] and [132]) where it was noted that the wide meanings of "community" and "reasonable access" in s 90A(3) "gave considerable latitude to the Minister", and that "public interest" in s 90A(2)(b) is a phrase of wide import and not readily susceptible to confinement. (J [31]-[34].) 28 His Honour then considered and rejected each of the principal submissions made on behalf of Freedom in support of its contention that the Minister's decision is unreasonable. (J [35]-[47].) 29 Freedom submitted that the Minister defined "community" in two different ways: first, as "the group of people who attended the Medical Centre" and, secondly, as "the group of people who reside in the immediate area surrounding the proposed pharmacy and patients who attended the Medical Centre". The primary judge held that s 90A(3) gives the Minister a broad discretion to identify the relevant "community", and that he did not adopt two different definitions of "community". His Honour held that, properly understood, the Minister's reasons identified, and explained, the relevant community to be "the group of people who attended the Medical Centre". (J [36]-[42].) 30 Freedom also submitted that the Minister failed to identify the base level of reasonable access and failed to identify why it was said that the relevant community would be left without reasonable access to pharmaceutical benefits if the application was rejected. With reference to his earlier conclusion that the scope of the Minister's discretion is not constrained by the "baseline" or "geographical constraints" supplied by the Rules, the primary judge identified the broader factors that the Minister legitimately took into consideration and weighed in evaluating the merits of Ms Rouchdi's application. His Honour concluded that having regard to the breadth of the scope of the discretion given to the Minister by the operation of s 90A, it cannot be said that the Minister's decision was legally unreasonable. (J [43]-[46].)

Ground 2 31 The primary judge identified that Freedom's principal contention in support of ground 2, which corresponds with appeal ground 2, was that although Freedom was invited to submit information relating to Ms Rouchdi's request to the Minister under s 90B, the request itself and the documents accompanying it were not provided to Freedom. Freedom submitted that a proper construction of s 90D(1)(b) read with s 90D(3) requires the Minister not simply to advise the recipient of a notice of the request, but also to provide a copy of it, or to provide at a minimum sufficient information about the nature of the request to enable the recipient to provide meaningful comments, information or documents that the Minister has been required to consider. The Minister did not do so in the present case. (J [50].) 32 After analysing the statutory provisions and relevant authorities, his Honour concluded that the information contained in the 23 August 2019 letter to Freedom conformed with the requirements of s 90D(1)(b). His Honour held that no requirement that an application submitted under s 90B(2), or a summary of it, be provided to the recipient of a notice can be inferred. Accordingly, his Honour rejected ground 2.

Appeal ground 1: legally unreasonable 33 It will be recalled that by appeal ground 1, Freedom contends that the Minister's decision under s 90A to approve Ms Rouchdi's application under s 90 of the Act was so unreasonable that no reasonable person could have so exercised the power within the meaning of ss 5(1)(e) and 5(2)(g) of the ADJR Act. In our view, this ground of appeal fails for the same reasons that the corresponding review ground failed - there is no error in the primary judge's reasoning and conclusion. 34 Freedom submits that the Minister's decision must be objectively construed as legally unreasonable in the sense that it was illogical and irrational and that it satisfies the characterisation of being unjust, arbitrary or capricious. Freedom submits that the Minister apparently ignored the purpose of the discretion and provided no logical or rational reasons why the relevant community would be left without reasonable access to pharmaceutical benefits in circumstances in which Freedom's pharmacy was between 60 and 170 m from the premises of Ms Rouchdi's pharmacy and opened for longer hours. Freedom submits that the Minister overlooked the fact that the area was already highly saturated with approved pharmacies and unreasonably narrowed his consideration of the relevant community to the patients of the relevantly small medical centre without a consideration of the broader community that was serviced by the existing pharmacies. 35 Freedom also submits that the Minister failed to identify the base level of reasonable access and failed to identify why it is said that the relevant community would be left without reasonable access to pharmaceutical benefits. 36 It will be recalled that under s 90A(2) it is not the fact of the Secretary's decision to refuse an approval resulting in a community being left without reasonable access to pharmaceutical benefits supplied by an approved pharmacist and it being in the public interest to approve the pharmacist that enlivens the Minister's discretionary power, but, rather, the Minister being satisfied of those requirements. As was explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 397 ALR 1 at [21], such a personal state of satisfaction is reviewable if the satisfaction is found to have been reached unreasonably or is not capable of having been reached on proper material or lawful grounds. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [131] and the cases cited at footnote 109. 37 It is uncontroversial between the parties that the summary of the law as to legal unreasonableness in Djokovic at [29]-[35] is accurate and applicable in the present case. 38 By way of further summary, as a statutory jurisdictional condition or jurisdictional fact, the satisfaction that the two requirements in s 90B(2) are met must be reached on a legally reasonable basis and the discretionary power exercised in accordance with legal reasonableness; the state of satisfaction is a jurisdictional precondition or jurisdictional fact and should be distinguished from the exercise of discretion for which the state of satisfaction is a precondition: Djokovic at [29]. 39 There are two different contexts in which the concept of legal unreasonableness has developed: (1) a conclusion after the identification of jurisdictional error of a recognised specie, and (2) an "outcome focused" conclusion without any specific jurisdictional error being identified: Djokovic at [30]. The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Djokovic at [33]. 40 Further, if a decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question, then it is legally unreasonable: Djokovic at [34]. Ultimately, the question is whether the satisfaction as to the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds, such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material - if so, it will then satisfy the characterisation of unjust, arbitrary or capricious: Djokovic at [35]. 41 Turning now to the decision in question, for the reasons given by the primary judge at J [56]-[59], which are not challenged on appeal, the concept of "community" is not limited in the way contended by Freedom. The concept of "community" is a broad one, and need not involve a geographical element. Moreover, under s 90A(3), "community" means a group of people that "in the opinion of the Minister" constitutes a community. There is no illogicality or irrationality in the Minister identifying the relevant community as persons who attend a medical centre: Stambe v Minister for Health [2019] FCA 43; 270 FCR 173 at [172]-[173] per Mortimer J. It was a matter for the Minister to form an opinion about a relevant group of people constituting a community. Having done so, it was then for the Minister to consider the position of that community. No error is revealed by pointing to alternative or broader communities that the Minister might have considered had he formed a different opinion. 42 Freedom nevertheless submits that the Minister's satisfaction that the patients of the Medical Centre would be left without reasonable access to pharmaceutical benefits is unreasonable, or illogical, because the Medical Centre is only a short walk across a car park to Freedom's pharmacy, and there are 14 other approved pharmacies within an approximately 2 km radius. As noted in his factual findings quoted above, the Minister found that Freedom's pharmacy is approximately 60m from Ms Rouchdi's premises, along a concrete footpath that crosses a driveway. Central to the Minister's reasoning was that members of the community would not have to leave the Medical Centre to access pharmaceutical benefits. 43 As the primary judge pointed out (at J [63]), under s 90A(3), "reasonable access" in relation to pharmaceutical benefits supplied by an approved pharmacist means access that "in the opinion of the Minister" is reasonable. The Minister is able to take into account a range of factors which would include the proximity of other pharmacies, physical or other barriers between them, distance considerations, the physical or other characteristics of the community seeking access, and the hours of operation and the nature of the services provided by proximate pharmacies. As found by the primary judge (at J [65]), it is not apparent that the Minister conflated or confused reasonable access with convenience. 44 As submitted by the Minister, it is contrary to the statutory scheme to seek to confine the Minister's discretion in relation to the assessment of what constitutes "reasonable access" by reference to a perceived "base level" of reasonable access, derived from the Rules or otherwise. There is nothing in s 90A to suggest that the Minister's evaluative judgment in assessing "reasonable access" is to be so confined. 45 In short, the Minister's conclusion that not approving Ms Rouchdi's application would leave a community without reasonable access to pharmaceutical benefits supplied by an approved pharmacist cannot be said to be illogical or unreasonable considering that attending Freedom's pharmacy would involve leaving the Medical Centre and the Mega Centre, crossing the carpark and a driveway and being in the open (ie, not under cover). Those are matters for the Minister to assess. Even if the Court were to disagree with the Minister's assessment, that assessment was nevertheless within the bounds of reasonableness. 46 Contrary to Freedom's submission, the Minister was plainly aware of the close proximity of Freedom's pharmacy, that it had longer opening hours and that there were multiple additional approved pharmacies within a few kilometres - the Minister expressly acknowledged those facts. The Minister considered that those factors were outweighed by the fact that members of the community would not need to leave the Medical Centre to obtain PBS medicines. The Minister's approach does not lack any intelligible justification or rational foundation, nor does it lead to an arbitrary or capricious result. 47 In the circumstances, appeal ground 1 fails.

Appeal ground 2: the required procedures 48 By ground 2, Freedom contends that the primary judge erred in law by failing to find that the procedures that were required by law to be observed in connection with the making of the Minister's decision were not observed. In particular, Freedom contends that having purportedly given notice to Freedom under s 90D(1)(b), the Minister failed to properly advise Freedom of Ms Rouchdi's request pursuant to s 90A by failing to provide a copy of the request and any supporting documents to Freedom, or by failing to provide a sufficient summary of the request so as to enable Freedom to provide meaningful or considered comments on, or information or documents relevant to, the request. The Minister's alleged failures are said to give rise to judicial review under s 5(1)(b) of the ADJR Act. 49 Freedom acknowledges that a competitor of a pharmacist applying for approval is not entitled to receive a notice under s 90D, but submits that once the power in s 90D(1)(b) is exercised, the Minister is required to consider any comments, information and documents that are provided by the recipient of a notice. On that basis, Freedom submits that the proper construction of s 90D(1)(b) read with s 90(3) requires the Minister to not simply advise the recipient of the request, but to provide a copy of the request, or a summary, so as to enable the recipient to provide meaningful comments, information or documents. 50 As the primary judge observed (at J [51]), s 90D(1)(b) specifies the requirements of the notice: it must be "in writing", "advis[e] the person of the request" and "invit[e] the person to provide comments on, or information or documents relevant to, the request within the period specified in the notice". The Minister's notice in the present case fulfilled all those requirements. In addition, it identified the address of the proposed premises, it advised that the Authority had rejected the request on the basis that it did not satisfy the Rules, it identified the criteria that the Minister would consider in determining whether to exercise his discretion to grant approval and advised where further information regarding the ministerial discretion process could be obtained. It thus went considerably further than the express requirements. 51 It is apparent from Freedom's submissions to the Minister that Freedom properly understood the matters about which it might relevantly make submissions, i.e., the s 90A(2) matters, and that it was able to make fulsome submissions. It has not identified any additional submission that it might have made had it known more, including all that it now knows as a consequence of getting access to all relevant material in the court proceeding. 52 It is to be observed that Freedom's submission is not that there was a failure to observe the requirements of the rules of natural justice, or procedural fairness. The submission is that the particular statutory provisions, properly construed, require that the Minister furnish to a third party the request to the Minister or a summary of it if the Minister decides to exercise the power under s 90D(1)(b) to give a notice to another person. Such a construction is simply not open in light of, first, the fact that the Minister has a discretion whether to give a notice at all and, secondly, the terms of sub-para (i) that such a person may be advised "of the request". Such advice would necessarily include the identity of the premises in respect of which the request was made, but there is nothing to support the contention that the whole request, or a summary of it, has to be furnished. 53 In the circumstances, appeal ground 2 fails.

Disposition 54 For the above reasons, the appeal should be dismissed. There is no apparent reason why the costs should not follow the event. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Markovic, Thomas and Stewart.

Health Legislation Amendment (Pharmacy Location Arrangements) Act 2006(Cth)

National Health Act 1953(Cth)ss 90, 90A, 90B, 90D, 90K

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)

Cited By (1)