conclusion
41 The issues raised in this application essentially involve questions of construction, and the interrelationship between ss 90 and 133 of the Act. There have been other cases where similar provisions, albeit different statutory schemes, were considered.
42 In Registrar of Liquor Licences v Iliadis (supra) the Australian Capital Territory Gaming and Liquor Authority had cancelled an off licence issued under the Liquor Ordinance 1975 (ACT) in respect of certain premises. An appeal against that decision succeeded, and the Full Court of the Federal Court dismissed a further appeal from the judgment of the primary judge.
43 Section 51 of the Liquor Ordinance provided, inter alia, that the Authority could cancel a licence where the licensee was serving a sentence of imprisonment, or had been convicted of an offence of a specified type. The term "licensee" was defined to mean, in relation to a licence, the holder of the licence and in relation to licensed premises, the holder of the licence in force in relation to those premises.
44 The relevant facts were not in dispute. The licence was in the name of three individuals. On a particular date three offences of the type that would trigger cancellation were found proved against one of those three individuals. A fine of $200 was imposed. On a later date the same individual again pleaded guilty to two further offences of the type required to trigger the cancellation provision and was again fined. Subsequently the three individuals named in the licence transferred it to the five appellants in the case under consideration. It is interesting to note that, after the cancellation of the subject licence the Liquor Ordinance was amended so as to permit licences to be held by partnerships. It was also amended to make it clear that where a licence was issued in the names of two or more persons, a reference in the Liquor Ordinance to a licensee should be read as including a reference to each of those persons.
45 Davies J, with whom Kelly and Pincus JJ agreed, observed at 313 that there was much to be said for the view taken by the trial judge that, prior to the amendments, the Liquor Ordinance did not contemplate that a licence would be granted to more than one person. His Honour went on, at 314 to note that at the time that the individual in question had been convicted of the three offences under the Liquor Ordinance, he was only one of several persons who were the licensees of, and held the licence in respect of, the licensed premises. The proceedings before the Authority did not seek to cancel a licence held by that person alone and the proceedings before the trial judge had not raised an attack upon the validity of the licence granted to the other co-licensees. Its validity could therefore be assumed.
46 Accordingly, as Davies J noted, the licence which the Registrar of Liquor Licences sought to have cancelled was a licence held by several persons of whom the offender was only one. In respect of that licence, the co-licensees together were the holders of the licence. Davies J said at 314-5:
"The issue before the trial judge was whether that licence should have been cancelled pursuant to the provisions of s 51(1)(c) which permitted the Authority to cancel the licence where the licensee had been convicted of two or more offences against the Ordinance. The term "licensee" was specifically defined in s 4(1) as referring to "the holder of the licence".
In my opinion, the trial judge was correct in holding that the holder of the licence had not been convicted of two of more offences under the Ordinance, that only one of the licensees had been so convicted. Section 51(1) did not use the expression "a licensee" and the definition of licensee in s 4(1) did not refer to "a holder of the licence". I see no warrant for reading s 51(1) so as to permit the Authority to cancel a licence granted or transferred to several persons merely because one of those persons is serving a sentence of imprisonment or has been convicted of two or more offences or the like. One of several persons who hold a licence is not "the licensee"."
47 Davies J referred to R v Lewes Justices; Ex parte Trustees of the Plumpton and District Club [1960] 1 WLR 700 where a Divisional Court likewise rejected the view that a club licence was forfeited on the conviction of one member of the club for a licensing offence. The Divisional Court held that, under the relevant legislation, there was no power to order the forfeiture of intoxicating liquor, which had been sold by one member of a club who did not hold a justices' licence unless there had been a conviction of "the owner or occupier of the place". That meant that all of the owners or occupiers, where there were more than one, must be convicted of offences, in order to enliven the power to cancel the licence.
48 Davies J went on to observe at 315:
"Provisions for forfeiture or cancellation should not be given a meaning wider than that conveyed by the terms used unless the expanded meaning is clearly to be inferred …"
49 His Honour concluded by referring to Crafter v McKeough [1943] SASR 371. There the Full Court of South Australia held that one of several co-licensees could be separately charged and convicted. Angas Parsons J said at 377:
"It is not necessary in the present proceedings to say anything on the result which will follow if only one of a plurality of licensees of one licensed premises is convicted."
50 In Sotomayor v Registrar of Liquor Licences (supra) Gallop J dealt with a similar issue. There an off licence had been cancelled after several convictions for selling liquor to underage persons. The individuals carrying on business in partnership appealed against the cancellation of the licence of the business which had been transferred to them by the offender. His Honour concluded that it had been an error to issue the licence in the individual names of the appellants, as partners, as was demonstrated by Iliadis. Nonetheless, the "licensee" (namely, the partners) had not, on two or more occasions, been convicted of an offence against the Liquor Ordinance. The holder of the licence at the relevant time was the "partnership", not the offender. The difficulty was resolved by s 48(2) which provided that where a licence issued in the name or names of one or more of a number of partners was held for the purposes of the partnership, a reference to the "holder of a licence" should be read as including a reference to any of the partners concerned in, or taking part in, the management of the business. It followed that the Authority had correctly held that the conviction of the one offender gave rise to the power to cancel the licence, notwithstanding that no other partner had been convicted.
51 Both Iliadis and Sotomayor seem to me to lend support to the Minister's contention that the approval granted to the applicant and her sister, in the present case, should be regarded as a single grant of permission, and not as two separate and distinct approvals. Upon a superficial analysis, Iliadis, and perhaps Sotomayor,might be thought to suggest that the Minister had no power to revoke that single approval, given that the applicant had not herself been convicted of an offence under s 133(2). However, the legislative scheme under consideration in those cases differed in certain important respects from that which operates under the Act in relation to pharmacists. For example, there appears to be no equivalent to s 48(2) of the Liquor Ordinance in the Act, and it will be recalled that that section assumed considerable significance in the reasoning of Gallop J in Sotomayor. It is clear that these cases are not directly in point.
52 Sotomayor suggests that the conviction of the applicant's sister was capable of triggering the revocation of the single approval granted, notwithstanding the Minister's finding that the applicant was not party to her sister's fraudulent conduct. On that analysis, whether or not the approval should be revoked involved an exercise of discretion. However, the discretion was to be exercised upon what was in effect, an "all or nothing" basis. In other words, if the Minister considered that the approval should be revoked, in relation to the applicant's sister, it had to be revoked in its entirety. That was so even if the applicant was thereby prejudiced through no fault of her own.
53 It is plain that s 90, upon its proper construction, authorises the Secretary to approve a pharmacist, or pharmacists, for the purpose of supplying pharmaceutical benefits at or from particular premises. In my view, that section contemplates that the Secretary may grant a single approval to one or more pharmacists who will hold that approval jointly. That conclusion is supported by the fact that, where a pharmacist desires to supply pharmaceutical benefits at or from several premises, s 90(2) requires that there be a separate application, and a separate approval, in respect of each of those premises.
54 It seems to me that s 133(2), upon its proper construction, empowers the Minister to revoke an approval granted under s 90 in circumstances where any one of a number of pharmacists who are joint holders of that approval has been convicted of a relevant offence. It is important to note that sub-section (2) operates when a "pharmacist" is convicted of such an offence, and not when the "holder of a licence", or "licensee", has been convicted of an offence. This is in stark contrast to Iliadis, where the difficulty was that "the licensee" (which there consisted of a plurality of individuals) had not been convicted of any offence, and therefore the trigger for cancellation was not met.
55 It follows that the conviction of the applicant's sister triggered the revocation of the approval which had been granted jointly to the applicant and her sister. That is not, however, the end of the matter. It will be recalled that the primary submission advanced by counsel for the applicant was that there were separate and distinct approvals given to each of the applicant and her sister. In the alternative it was submitted that even a single approval required "severance" if one of the "approved pharmacists" was innocent. That meant that, insofar as the approval applied to the applicant's sister, the Minister had the power to revoke it. However, insofar as it applied to the applicant, there was no power of revocation. In substance the submission was that the Minister had both the power and the duty to "sever" the approval or, in other words, to partially revoke it.
56 This alternative submission necessitates a consideration of whether the Minister has the power, under s 133(2)(b), to sever or partially revoke a single approval.
57 There can be no doubt that the Minister accepted that she had a discretion as to whether to revoke the approval, an approach which was plainly correct. However, she exercised that discretion upon the basis that no power existed to sever, or partially revoke, an approval. She exercised her discretion by balancing the considerations in favour of revocation, and those against, and ultimately concluded that the magnitude of the fraud committed by the applicant's sister necessitated revocation. She arrived at that conclusion notwithstanding the fact that revocation would visit significant harm upon the applicant, who was relevantly "innocent" of any involvement in her sister's fraud, though perhaps not entirely free from responsibility for what had occurred.
58 The question whether the Minister can sever or partially revoke an approval granted to several pharmacists "jointly" is a difficult one. The Act is silent on this issue. There appears to be no authority directly in point. It follows that regard must be had to ordinary principles of statutory construction in resolving that question.
59 The word "revoke" is defined in the Oxford English Dictionary as meaning "to recall, to draw back and to bring back into use or revive". That definition does not, of itself, assist in determining whether or not a power to revoke an approval may be exercised in respect of one of several joint holders, and not with respect to the others.
60 Normally one would turn to the general provisions applying to all statutory powers in the Acts Interpretation Act in an effort to resolve this question. Broadly stated, these provisions are contained in s 33 of that Act.
61 Section 33(1) provides that once conferred, a power may be exercised from time to time as the occasion requires. That sub-section seems to confer a measure of ancillary power. However, it is limited in scope. It simply enables a power which has already been exercised once, to be exercised on other occasions: Edenmead Pty Ltd v Commonwealth of Australia (1984) 59 ALR 359; Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 at 335 and Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal (1988) 84 ALR 669. The sub-section seems to have no direct application to the issue before the Court.
62 Section 33(3) provides that the power to make an instrument entails a power to vary and to rescind it: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; Mabey v Australian Film Commission (1984) 57 ALR 583 and Australian Capital Equity Pty Ltd v Beale (1993) 114 ALR 50. However, that sub-section is expressly limited to "instruments". As was accepted by counsel on both sides, the power conferred by s 133 upon the Minister to revoke an approval is not, of itself, a power to make, or issue, an instrument. It follows that the sub-section has no application.
63 None of the other sub-sections contained in s 33 of the Acts Interpretation Act have any application to the issue whether the Minister can sever, or partially revoke, an approval. One must therefore turn to the common law, and its canons of construction, to see whether s 133, supports such a power.
64 The most obvious statutory power is an express power. Plainly no power of severance or partial revocation has been expressly conferred by s 133. As well as express powers, statutes often confer upon the designated Ministers or officials implied powers. Where a statute confers an express power it is implicit that it confers ancillary powers as well. These are powers to do any incidental thing which is reasonably necessary to make the express grant of power effective: see C Enright, Federal Administrative Law (2001) at 70.
65 In Attorney-General v Great Eastern Railway Co. (1880) 5 App Cas 473 the House of Lords held that reasonable ancillary acts, though not expressly authorised by a statutory power, are not to be treated as ultra vires. That principle remains applicable as a canon of construction: see generally F Bennion, Statutory Interpretation (3rd ed. 1997) at 184.
66 It should be noted that, at common law, the power to appoint to an office includes the power to remove from it: Laird v Municipality of Portland [1958] Tas SR 90 and Thompson v Minister for Education of Queensland (1993) 29 ALD 525. That principle finds expression in s 33(4) of the Acts Interpretation Act.
67 I can see no reason, in principle, why the power to grant a permission or approval should not be construed as containing within it the implicit power to sever, or partially revoke that permission or approval. If an owner of particular premises grants permission to several persons to enter those premises, as bare licensees, it seems plain that he may revoke that permission in relation to one or more of those persons without revoking it in its entirety. If one of those persons is a contractual licensee, while the other is a bare licensee, there is little doubt that although equity might assist the contractual licensee to remain on the premises (see Hurst v Picture Theatres Ltd [1915] 1 KB 1), the bare licensee will be a trespasser if he remains on the premises after the license granted to him has been revoked.
68 Moreover, the grant of a permission may be conditional. Where a condition is attached, and not met, the permission will be regarded as having been withdrawn. In Barker v The Queen (1983) 153 CLR 338 it was held that the owner of certain premises who gave his neighbour a key to his house, and asked him to look after it while he was away on holidays, did not thereby grant him permission to enter the house as and when he saw fit. Where the neighbour entered the house, not for any legitimate purpose, but in order to steal the contents, he entered as a "trespasser", and was therefore properly convicted of burglary. The logic of the decision is compelling. In effect, the permission to enter was conditional. When the accused entered with an ulterior intent he breached that condition and the permission was, in substance, withdrawn.
69 There are other examples where the common law, and equity, have recognised a power of partial revocation. In Brenchley v Lynn (1852) 2 Rob Eccl 441 at 462 it was noted that the word "revocation" had several meanings. An example was "where a subsequent paper renders an earlier paper inoperative wholly or partly ..." (emphasis added)
70 The concept of "partial revocation" is well recognised in the law of succession. Voluntary revocation may be of the whole or only part of a will: see for example Wills Act 1997 (Vic) s 12. The extent of such revocation is determined by reference to the intention of the testator: In the Will of F.J.Page [1969] 1 NSWR 471. Where partial revocation renders the remainder unintelligible, the whole of the will is revoked: Leonard v Leonard [1902] P 243.
71 There is nothing in the Act to suggest that the power of revocation conferred upon the Minister by s 133(2)(b) should be restricted to a power of total revocation, or none at all. Rather, s 133 when read in its entirety, implicitly suggests that the power to revoke may be exercised in whole, or in part.
72 It will be recalled that s 133(2)(b), as well as providing for revocation, provides that the Minister may, by notice in writing, suspend, for such period as the Minister specifies in the notice, an approval. Suspension of an approval is obviously a less draconian measure than revocation. The plain intent of the sub-section is to confer upon the Minister a wide range of powers, capable of being used in a flexible manner, to further the objectives of the Act. If the Minister can suspend an approval for any period that she regards as appropriate, rather than revoking it, it is difficult to see why, assuming that revocation is warranted, it must be total, rather than partial.
73 Section 133 must be read purposively, in accordance with s 15AA of the Acts Interpretation Act. Section 133(2)(b) provides for the suspension or revocation of an approval as part of a regime of civil and administrative penalties under the Act. There is no reason whatever to construe the sub-section as requiring the Minister to approach the matter of revocation upon the basis that once the power to revoke has been triggered, and it is necessary to exercise that power in relation to a particular approved pharmacist, it must also be exercised in relation to all other approved pharmacists who are jointly subject to the same approval. It is clear that there will be cases where those other approved pharmacists have done nothing to merit revocation of an approval. I can see no legitimate purpose in construing s 133(2)(b) as requiring an approval be revoked in its entirety in such cases.
74 It is no answer to say, as the Minister did, that an innocent pharmacist whose approval has been revoked can always apply to the Secretary for a further approval. The facts of this case demonstrate that the process of approval, under s 90, may be fraught with difficulty. Indeed, a fresh approval may be impossible to obtain for reasons which have little to do with an applicant's suitability to operate as a pharmacist. It may be, for example that, as in the present case, a fresh approval will be unlikely to be granted because another pharmacy has commenced operating in close proximity to the premises in relation to which the approval is sought. Planning considerations, such as restrictions imposed upon the distance between pharmacies, may dictate that any such application be refused.
75 My conclusion that the power to revoke which is conferred upon the Minister may be exercised in relation one or more of several "approved pharmacists" is supported by the nature of an approval under s 90. That section makes it clear that the act of approval is personal, being directed towards a particular pharmacist or pharmacists. Although the approval is linked in a purposive manner to the premises from which the business is to be conducted, it is not an approval of those premises.
76 The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the statute viewed as a whole. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 the High Court, by majority, in effect read words into a section of the Income Tax Assessment Act 1936 (Cth) in order to avoid a drafting oversight, and to achieve a result which was consistent with what were perceived to be the parliament's manifest intentions. This was done to avoid the literal meaning of the words used, which would have produced a result that was "incongruous" or "capricious and irrational".
77 A provision which is capable of working manifest injustice if construed in a particular manner, should be read, so far as possible, in a way that avoids that consequence. That is all the more so when the alternative construction accords greater, and not less, power to the Minister in the discharge of her responsibilities under the Act, conformably with the principle that a power conferred includes ancillary powers.
78 If the applicant's contention that, as a matter of principle, her case should be considered separately from that of her sister is correct, and this leads to severance or partial revocation of the approval, the fact that this may create some minor administrative difficulties for the Minister's Department is of little consequence. If a new approval number is required to be allocated to an approval which has been partially revoked, then so be it. In any event, there is nothing sacrosanct about the manner in which an approval is recorded. The Act makes no provision for any prescribed form of approval.
79 The Minister plainly considered that the case for revoking the approval in relation to the applicant's sister was overwhelming. She would have been derelict in her duty had she come to any other conclusion. The fraud committed was systematic. It involved a substantial fraud upon the Commonwealth with a significant loss to the revenue. The applicant's sister did not challenge the decision to revoke the approval. One can readily understand why she did not do so.
80 The applicant is in a very different position. It is true that the Minister gave consideration as to whether she should exercise her power of revocation pursuant to s 133(2)(b) having regard to the circumstances surrounding the applicant's involvement in the conduct of the business. She concluded that there was insufficient evidence to establish that the applicant was involved in, or actually aware of her sister's fraudulent conduct. She considered that the applicant's lack of involvement in that conduct was a matter relevant to the exercise of her discretion. However, although she accepted that no criminality had been demonstrated on the part of the applicant, she considered that as an approved pharmacist deriving benefit from the legislative regime, it had been incumbent upon the applicant to take an active role in monitoring activities conducted in reliance upon the approval granted to her.
81 Although the Minister considered the applicant's conduct in determining whether to revoke the approval, she did so against the background of a construction of s 133(2)(b) which did not allow for partial revocation. It is clear that, at least by implication, the Minister regarded the applicant as having failed adequately to supervise the conduct of the pharmacy, and treated that failure as a relevant matter when determining whether to revoke the approval. However, the applicant's status as an "approved pharmacist" might have been viewed in a different, and perhaps more favourable light, had the Minister approached the exercise of her discretion, not on an "all or nothing" basis, but rather on the basis that the applicant's approval should be considered independently from that of her sister.
82 Whether the applicant's approval should be revoked is, at the end of the day, a matter for the Minister. However, the discretion vested in the Minister by s 133(2)(b) must be exercised in a lawful manner. The Minister must have regard to all relevant considerations which she is required by the Act to take into account. Conversely, she must disregard all irrelevant considerations.
83 For the reasons set out above, I consider that in the present case the Minister exercised her discretion upon an erroneous basis. She approached the task of balancing the competing interests by assuming that her powers under the Act were constrained to revoking the approval in its entirety, or not at all. In fact her powers were not so constrained, and were significantly wider than she was apparently advised. In truth, it was open to the Minister to revoke the approval in its application to the applicant's sister, but not in its application to the applicant. The Minister did not turn her mind to the possibility that the approval should not be revoked in its entirety. Her failure to consider that possibility meant that her discretion miscarried. Her decision to revoke the approval must, therefore, be set aside.
84 Although, it is necessary, for the reasons set out above, to set aside the Minister's decision to revoke the approval, there is nothing to prevent her from exercising her discretion afresh, in accordance with the requirements of the Act.
85 The applicant has been successful in having the decision of the Minister set aside, though not upon the basis of the primary submission advanced on her behalf. Nonetheless, the argument which has prevailed is closely akin to the alternative submission advanced by counsel for the applicant, namely that the decision to revoke the approval ought to have been 'severed'. That alternative submission was put as going to power, and not as going to discretion. However, it was implicit in the way in which the argument was put that, as a "fallback" position, the Minister's discretion had miscarried with regard to the issue of severance. In those circumstances, the justice of the case requires that the respondent pay the applicant's costs.
I certify that the preceding eighty five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.